Magdelaine Michelle Bonneau v. Benjamin Poydras, 2 Rob. 1

SimoN, J. This case, which, by a decision reported in 13 La. 177, was remanded for a new trial, for the purpose of enabling both parties to make proof of the various authorizations under which they claim, comes back to us in such a shape as to permit us to give a final opinion on their respective rights, and on the different points of law presented by the pleadings.

We shall, however, proceed to consider them on the merits, without any reference to the former decision of this court, which, being apparently predicated on the assumption that the laws of France had been regularly proven, seems to have had for its sole object the solution of the question, whether the plaintiff’s capacity to sue was to be regulated by the lex fori, or was to be governed by the laws of her domicil 1 In conformity with that decision, the plaintiff obtained the authority of a French tribunal to enable her to stand in judgment, and on the production of the evidence of that authority, the defendant renewed his objection, on the ground that it ought to have been obtained before the institution of the suit.

This point is made the subject of a bill of exceptions taken to the opinion of the inferior court, permitting the introduction of the said evidence. We think the judge a quo did not err. It is perfectly clear that the authorization obtained by the plaintiff, if at all necessary, must now produce the same effect as if it had existed previous to her instituting this action.

Arts, 320 and 321 of the Code of Prac. lice provide, that when a suit is brought by a married woman, without the authorization of her husband or of the court, the defendant shall not be required to answer to the merits, until the plaintiff is assisted in such a manner as to enable her to proceed regularly.

This shows that the exception, if insisted on, cannot 'have any other effect than to require the plaintiff to exhibit her authorization before proceeding any farther in the case; and it matters not at what time such authority is obtained and produced, provided she be capable of standing in judgment at any time before the trial of the case on its merits. 4 La. 259.

The record, however, does not contain any evidence of the laws of France on that subject, and consequently as the plaintiff was separated in bed and board from her husband in the year. 1833, and as this suit was instituted in April, 1838, she was fully competent, under our laws, of acting without the authorization of her husband. Civ. Code, arts. 125, 2410. Act of 1826, § 2. 1 Moreau’s Digest, 227; and no other proof was requisite than that of the existence of the judgment of separation.

On the merits, it is perhaps proper to remark again that the laws of France, relied on by the plaintiff, are not in evidence, and that, therefore, under the well known rule which requires that foreign laws should be proved as facts, we cannot assume any knowledge of them; and that in the absence of proof of what those laws are, this case must be governed by our own. 1 La. 255, 2 La. 154. 12 La. 465, 589.

We shall, therefore, proceed to consider the matter in controversy, as governed exclusively by the laws of Louisiana, under which, the legality and validity of the act of compromise which is sought to be annulled, and its effect or consequences, ought, in our opinion, to be tested.

The defendant’s counsel, in order to resist the plaintiff’s action, contends : First, that the plaintiff, who was separated in property from her husband, was fully capable, without his authorization, or that of a court of justice, to obligate herself by the act of compromise complained of, inasmuch as it embraced only her moveable property.

Secondly, That the powers of attorney under which her agent contracted in her name, were sufficient to bind the plaintiff; but even if originally insufficient, that the plaintiff cannot now attack the act in question, because such insufficiency has been cured subsequently by a voluntary execution on her part, equal to an express confirmation or ratification. I. The solution of this question necessarily requires a preliminary inquiry into the nature of the rights of ihe plaintiff, to the succession of her uncle.

The evidence shows that Julien Poy-dras died in the year 1834, and that he left an olographic will, in which, after making divers special legacies in property and money, he bequeathed the balance of his estate to his nephews and nieces, by equal portions, in the following words : “ Tous les legs susdils queje viens d’établir préaláblement payés et acquittés, je legue a mes neveux et nieces existans et venus des mariages de mes trois fréres et de ma sceur susdits et décédés, la générálité des biens de toute nature que je délaisserai au jour de mon décés en quelque lieu qu ’ils soient trouvés ou situés, les établissant mes légataires universels par portion égále entre mes dits neveux et nieces, des-quels biens ils ne pourront réclamer la jouissance et la remise que cinq ans aprés mon décés, par la raison queje les laisse pendant tout cet interválle de tems entre les mains de mes exécuteurs testamen-taires, et au profit de ma succession, pour les recevoir, les réalizer, &c.” In the beginning of his will, the testator had first proceeded to order the sale of all his property, and to give his instructions to his executors, accordingly, as follows: “ Je vais établir mes volontés pour la vente de ces mémes habitations, les esclaves en de-pendant, et de toutes autres ierres cultivées on non, que ni! appar-tiendront et que pourront mi avpartenir dans Vavenir et dont ma succession se composera, á la diligence de mes éxécuteurs testa-mentaires ci-aprés dénommés trois mois aprés la cloture de Vin-ventaire de mes biens, aprés avis, &c., mes six habitations que je viens de désigner, tous les esclaves en dépendant et toutes autres ierres rriappartenant, cultivées ou en friche, seront ven-dues pour le prix en étre payé en quatre termes égaux, <J-c.” He then goes on providing for the sale of the slaves with the plantations, for their emancipation after a certain period, and imposing other conditions on the purchasers of the plantations and slaves, &c.

It seems to us evident, from the above clauses and depositions, that the universal legatees had no right to take possession.of any of the immoveable property of the succession, since the same, according to the orders and instructions of the testator, was all to be sold and realized, pour les réalizer; and that their rights under the will, which they could not set up and enforce before the expiration of five years, were to be limited to their portions of the proceeds of the sale, after satisfaction of all the previous particular legacies.

The intention of the testator, from the whole context of the will, all the clauses whereof are to be construed together, is sufficiently clear and explicit.

His views were, that all his real property and slaves should be disposed of by his executors for certain purposes mentioned in the will, and those purposes would undoubtedly have been inconsistent with the power allowed to the residuary legatees to take possession of the immoveable property, if their right had n<5t been limited and restricted to their claiming the balance of the estate after five years; that is to say, after all the property had been converted into money or notes-Surely, it was not in the power of the legatees to defeat the manifest object of the testator.

Their rights under the will could not be exercised but in the state in which they had been put by the testator himself; and it is obvious that he never intended that they should be permitted to take any of the property in kind, and thereby prevent the full execution of his wishes and positive instructions.

With this view of the testator’s intentions, we cannot hesitate to say, that the rights of the plaintiff to the succession of Julien Poydras, were purely moveable, as they only consisted in her portion of the proceeds of the sales of the property, either in money or in notes proceeding from the adjudications, and ought even to be considered so, althongh those notes should be secured by mortgages reserved on the property sold. Civ. Code, arts. 466, 467; Merlin, Répert. verbo Biens, § 1, No. 13. Voét, Comm. ad Pand. lib. 1, tit. 8, No. 27.

It is urged, however, that, under art. 463 of the Civil Code, which malres an action for the recovery of an entire succession, immoveable, the hereditary rights of the plaintiff, though composed of moveables, are immoveable from the object to which they apply.

This law, which partly corresponds to art. 22, p. 9S of the Civil Code of 1808, but which did not exist at the time of the opening of the succession, seems to us to relate only to the action which is given by law to the heir, to claim an entire succession in hind„ and such as it was at the time of its opening, but does not apply to the case of a residuary legatee, who can only claim his portion of the balance of the estate.

According to arts. 867, 868, 869, 870 of the Civil Code, a succession is defined to be the transmission of the rights and obligations of the deceased to the heirs, and signifies, also, that right by which the heir can take possession of the estate of the deceased, such as it may be. These

definitions indicate sufficiently what the law means by the terms, “ action for the recovery of an entire succession,” made use of in art. 463 ; and from an analogous case, in art. 1240, it appears to us clear, that when the right of an universal legatee, or of a legatee under an universal title, is limited to claiming the moveable part of a sue- « cession, or a portion of the residue • thereof, and does not entitle him to take possession of the estate in kind, such as it may be, at the time the succession is opened, the law does not allow him the action alluded to in art. 462, relied on by the plaintiff’s counsel.

But it is also contended that, among the property embraced in the transaction, the plaintiff has an interest in a plantation situated at Terre aux Bceufs, and in a house in New York, subject to a-life estate. This, in our opinion, cannot make any change in the nature of the right of the plaintiff, such as they originally were under the will, and does not affect the validity of the act complained of. The plantation at Terre aux Bceufs did not belong to the succession at the time of its opening.

It was subsequently taken in payment by the executors from Jourdan, fréres, with the consent of the heirs, in consequence of a compromise with the purchasers ; and was afterwards, on the 6th of April, 1829, by a decree of this court, allotted to the other ten heirs of the deceased, in payment of the sum of one hundred and thirty thousand dollars, on account of their rights against the succession. The plaintiff and her sister 'had, therefore, ceased to have any interest in the plantation, at the time the act in question was executed.

With regard to the house in New York, it is a well established rule that the capacity to dispose of real property is to be determined by the lex rei sitae, Story, Conflict of Laws, p. 363 ; and in New York, where it is shown that the common law prevails, a married woman may dispose of her separate estate, as if she were ^feme sole. 5 Wheeler’s Abridgment, 563. 17 Johnson’s Rep. 548.

In the present- case, the act of compromise attacked by the plaintiff, is nothing but a sale or transfer of her (moveable) rights to the succession of her uncle, for a certain consideration therein stipulated; and was made with a view, not particularly 'of prevent* ing or putting an end to a law suit which might have existed between her and the defendant, but of avoiding further litigation with her co-legatees in relation to the settlement of the estate; and the question presents itself, could she make such-a sale? According to art. 2410 of the Civ.

Code, which is the same as art. 97, p. 342 of the Code of 1808, and art. 1449 of the Nap. Code, “ The wife separated in property, may dispose óf her moveable property and alienate the same without the consent of her husband. Toullier, vol. 2, p. 20, No. 632. Idem, 13, No. 108. Idem, 14, No. 253. Duranton, vol. 2, No. 490. Idem, vol. 14, Nos. 424, 425 and 426. Paillet, No. 2 on art. 1449.

It is thus clear that, being separated in property from her husband, the plaintiff was fully capable of disposing of her hereditary rights, purely moveable, and of alienating or selling them for a valuable consideration ; and on this score, the act complained of is legally binding upon her, unless it is shown that her agent acted without authority. II.

The power of attorney, dated 18th Sept. 1824, appears to have been given with a view, among other powers, of authorizing Pelagie Marguerite Mourain, “ de proceder a tous comptes, liquidation, et partage de ladite succession, &c. &c., et généralement faire tout ce que la mandataire verra bien etre dans Vintérét de la comparante, quoique non expressément prévu aux présenles toutes lesfois que ce qrVellefera, tendrá d la liquidation, partage, &c.” By the second power of attorney, dated 27th Sept. 1827, the plaintiff approves the purchase of the plantation, authorizes her sister to sue in all cases, to pay all accounts, &c. &c.; but neither of those two powers contains any special authorization to execute a sale of her rights to the succession of the deceased, or to make any compromise with re.spect to her right thereto.

It is true P. M. Mourain had ample power to proceed to the settlement and partition of the estate, to bring suits for that purpose, and that a suit for a partition was pending at the time the compromise was entered into ; but we cannot consider the act in question as a partition made between co-heirs under any of the powers of attorney; nor can we say that those powers are sufficient to authorize P. M. Mourain to bind the plaintiff by the act complained of. Such powers ought to have been express and special. Civ. Code, art. 2966.

But the defendant’s counsel insists that the plaintiff has ratified the act by voluntarily executing it; and that, although no act of confirmation or ratification has been produced, her voluntary execution of it must have the same effect. According to art. 2252 of the Civ. Code, “ in default of

an act of confirmation or ratification, it is sufficient that the obligation be voluntarily executed, subsequently to the period at which the obligation could have been validly confirmed or ratified and it now behooves us to examine from what facts and circumstances we may fairly and properly come to the conclusion that the plaintiff, by her voluntary execution of the act, has precluded herself from attacking its validity. The evidence shows, that on the 18th of March, 1825, P. M.

Mourain bought for her and plaintiff’s joint account, a plantation with 143 slaves, for $128,000, for which she gave four notes, payable at one, two, three, and four years from the day of the sale, secured by a special mortgage, and also affected her own and her sister’s shares in the succession, the better to secure the payment of the notes. This purchase was subsequently ratified by the plaintiff by her power of attorney of the 27th of Sept. 1827, for which purpose she was duly authorized by a competent tribunal in France.

Some time after the purchase of this plantation and slaves, the settlement of the estate was prosecuted; and owing to certain disagreements and controversies which arose between the heirs and the executors, two different suits were successively instituted for the purpose of ascertaining the portion coming respectively to each of the universal legatees, of establishing the balance due by the plaintiff and her sister on their purchase, and of compelling them to bring such balance, as they should be found to owe, into the mass of the estate. Before the final determination of the last suit, P. M.

Mourain, fearing that there would be a large .amount to be reimbursed by herself and her sister, conceived that it would be advantageous to.both to bring their portions in the estate to a final settlement; and, according to the wishes expressed by the plaintiff in several of her letters, and acting under the second power of attorney, she proceeded for herself and the plaintiff to make the compromise complained of, by a notarial act, executed on the 24th of July, 1829, and thereby transferred and sold to the defendant all their rights to the estate of Julien Poydras, in consideration of his undertaking to procure them a release for the payment of the price of the plantation and slaves.

Several letters written subsequently by the plaintiff show, that she was satisfied with the transaction; and on the 11th of April, 1831, she sent a power of attorney to Delamarre, for the'purpose of administering her affairs, and of selling “par telles voies, a telles personnes, et aux prix, charges, et conditions que le mandataire jugera con-venables, une habitation en sucrerie, indivise entre la constituanle et Mdme. Mourain, &c.,” revoking the powers by her heretofore given to her sister and to the defendant.

Her attorney in fact proceeded to act under this power of attorney, and accordingly sold ' at auction, by virtue of the same, her undivided half of twenty-two of the slaves purchased by P. M. Mourain in 1825. On the 13th of April, 1833, an action was instituted by the plaintiff against her sister for the partition of the plantation. On the 30th of April, 1834, after her separation from bed and board, her attorney in fact executed

an act of partition of the property in kind; and on the 15lh of May, 1835, the plaintiff 'approved a certain account containing several charges connected with and arising out of the act of compromise, such as the amount of the price of a cotton gin, mentioned in the said act.

It is true that, on the 1st of Sept. 1835, the defendant agreed, in writing, to produce the vouchers in support of the account, and. to account for the sums which should be found incorrect in it; but this, it seems to us, cannot destroy the effect of the written acknowledgment of the plaintiff as to the origin of the articles therein contained. It is also necessary to notice that on the 19th of August, 1829, the mortgage reserved on the sale to P. M.

Mourain and the plaintiff, had been raised by the defendant in compliance with the act of compromise ; and that the release of the mortgage enabled the plaintiff and her sister to ef-feet the sale and partition above alluded to, which, without such release, would have been impossible.

From the above facts and circumstances, we feel no hesitation in saying, that the voluntary execution of the act of compromise complained of, on the part of the plaintiff, cannot be doubted ; and it is obvious, that if the defendant had not complied, with his obligation as stipulated in the act, the plaintiff would have been unable to dispose of the property by sale or otherwise. Her subsequent acts were a necessary consequence of the compromise ; and cannot be considered in any other light than as evincing a manifest intention to execute it.

She availed herself of all the advantages and benefit which she ever had a right to expect from the object of the act. No further claim was set up against her by the succession in consequence of the purchase of the plantation and slaves, and they were for ever released from the mortgage which had been reserved to secure the price thereof.

Moreover, when she approved the account of the 15th of May, 1835, she must have been aware that the items included therein resulted from the act'of compromise ; and it seems to us that, having, by her own acts, changed the situation of the property, and having done acts of alienation inconsistent with the idea that she was not bound by the act complained of, it would be absolutely impossible to place the parties in the same position in which they were before the execution of the compromise.

Duranton, vol. 13, No. 280, says : “ If execution partidle demontre, comme Vexecution totale, la volonté de confirmer Vacte vicieux ; dost une approbation tacite.

See also Duranton, v. 13, No. 265; and Toullier, 8, Nos. 510, 511, 519 and 520, in which he says, “ Si Vexecution volon-taire suffit, celui au profit de qui le contra,t est ratifié par Vexecution, da done rien autre chose a prouver.” It is also a well settled principle, that “ he who is notified that a contract has been made for him and subject to his ratification, by a person who pretended to have authority for that purpose, must be presumed to ratify it, unless immediately on being informed thereof, he repudiates it.” 7 Mart, N. S. 143. 11 La. 288. Pailliet on art. 1985 of the Nap. Code.

Now, in this case, about eight years had elapsed between the date of the transaction and the institution of this suit. There is ample proof, from the letters and other subsequent acts of the plaintiff, that she was immediately notified of its existence. Nay, every thing shows that she was satisfied with it; that she was disposed to, and did voluntarily and effectually execute it; and it is clear to us, that if she ever intended to disavow the act complained of, it was her duty to have done so immediately on being informed of its execution.

We have every reason to believe that the present suit is nothing but the result of an afterthought on her part; and if so, she cannot be entitled to any relief at our hands. We must, therefore, conclude that the plaintiff, by her acts and general conduct, has tacitly and sufficiently ratified the act of her mandatary ; and that the judge a quo erred in not giving to it its full legal force and effect.

An attentive examination of the voluminous record which contains the provisional settlement of the state, and exhibits the real situation of the succession, has convinced us that far from having been injured by the act of compromise sought to be annulled, the plaintiff has, on the contrary, been greatly benefitted thereby; and it is, at least, doubtful whether her portion will ever amount to the one half of the price of the property which she has had the enjoyment of ever since the purchase. We cannot forbear expressing our opinion that the .equity of the case is also with the defendant.

It is therefore ordered, that the judgment of the District Court be reversed; that the act of compromise attacked in this suit, be maintained; and that our judgment be for the defendant, with costs in both courts.* . N. Ogden and A. N. Ogden, for a re-hearing.

The former judgment was conclusive, on the merits, in favor of the plaintiff, who was entitled to a final decision, on the failure of the defendant to produce any other authorizations than those introduced on the first trial, and on showing herself duly authorized to sue.' The decretal part of the judgment must be construed with reference to the body of the decision, from which it appears that the case was remanded only for the purpose of receiving evidence as to the authorization of the plaintiff to bind herself by the compromise, to commence a suit.

The decision, just rendered, is based on the mistaken opinion, that the right of the plaintiff to the succession of her uncle was a moveable.

The court seem to have derived this opinion from the will. “ The rights of the plaintiff,” say the court, “ were purely movable, as they only consisted in her portion of the proceeds of the sale of the property of the succession.” Again : “ It seems to us evident, from the above clauses and conditions, that the universal legatees had no right to take possession of any of the immovable property of the succession.” The testator says, “ Je ligue a mcs ncvcux et nieces ezistants et venus des manages de mes trois frites et de ma sceur susdils et decides, la giniraliti des liens de toute nature que je delaisserai an, jour dc mon dices, cn quelque lieu quits soient trouvis mi situis.” The following clause is the only restriction on their rights as universal heirs : “ desquels liens ils ne pourront réclamer la jouissance et la remise que einq ans apres mon dices, &c.” It is evident .from those provisions that if, at the end of five years, no sale had been made by the executors, or if the property so sold had been received back in consequence of the non-payment of the price, the property would have belonged to the heirs under the will.

The decision rendered in the case of Poydras v. Taylor et al., 9 La. 488, 18 La. 12, is inconsistent with the idea, that the legatees under the will of Julien Poydras, were the mere legatees of movable property.

That was an action, by the present defendant, whose rights as a legatee are the same as the petitioner’s, to compel the purchaser, of property at the sale of the succession of Julien Poydras to comply with the terms of the sale, and to prevent him from selling from the plantations negroes, who were, by its terms, to be considered as attached thereto, and only susceptible of alienation with the plantations themselves. The court then held that Benjamin Poydras’ capacity, as an heir, authorized him to maintain the action, and to see that the conditions of the sale were strictly complied with.

The rights of the heirs cannot be considered moveable, as the succession itself was composed of immove-ables. Though tlie whole estate had been converted into money, the right of the plaintiff in the succession would be an immovable, under art. 463 of the Civ. Code.' The compromise was a sale, not only of the plaintiffs hereditary rights in the succession, but of immovables belonging to it, and was void for want of authority.

She was not separated from bed and board until 1833, and her acts, prior to that period, from which it has been attempted to deduce a ratification of the compromise, can produce no effect against her. The only act, subsequent to 1833, from which a ratification has been inferred, was the order to her agent for the payment, if he found it correct, of an account composed of many items, one of which was for her portion of the notarial fees which her sister had contracted to pay for the execution of the act of compromise. But this was in 1835, after the plaintiff had already sued for the rescission of the act itself.

Can such an order, under such circumstances, be reasonably construed into a ratification of the compromise ? In the cases of Rivas v. Bernard, 13 La. 159 and Copeland v. Mickie et al., 17 Ib. 286, it was held, that to amount to a ratification, the acts must be of a nature to show clearly the intention to ratify ; and that the ratification must be the necessary consequence of the acts. The court have also erred in deciding that it was necessary that the laws of France should have been proved as facts.

In the first decision, it recognized the laws of that country as governing the case, and decided it on their knowledge of those laws, as not being foreign laws, they having been in force when this state formed a part of the French empire, add, consequently, not requiring proof. The principle that such laws were not required to be proved as facts, was recognized in the case of Malphen v. McKovn et al., 1 La. 254. Rehearing Refused.