RHODES vs. RHODES, 10 La. 85

Mathews, J, delivered the opinion of the court. This suit was commenced by the widow of Henry Rhodes* as representing her minor children, in her capacity of tutrix, against the tutrix of the children of John Rhodes. The action is founded on a bond or writing, obligatory, in which the ancestor of the defendants bound himself to convey, by sufficient title, one half of a tract of land, containing six hundred and forty acres, to Henry Rhodes, the father of the plaintiffs.

At the time this bond was made, John Rhodes, the obligor, had no absolute title to the property, but calculated on obtaining it by donation, from the United States, or by purchase under the provisions of the laws of congress, relating to the public lands in Florida. He succeeded in his claim for a donation, in pursuance of the act of 1826, as appears by a certificate of the register and receiver, &c. There is also an order for the location of the claim, found in the evidence of record.

The cause was submitted to a jury, who found a verdict for the plaintiffs, on which judgment was entered, ordering a partition of the land, in litigation between the plaintiffs and defendants. The District Court has jurisdiction in an action of partition, when it embraces two objects, first, to ascertain and determine die rights of the parties to the property in question $ and, second, to decree a partition between them. Whether

an act, which is set up as a sale, be good as such or not? yet if it be clothed with all the formalities required by law, to give force and effect to donations inter vivos, it will be considered and held valid as a donation. . Amongst other matters of defence, we find a plea to the jurisdiction of the District Court. We consider the cause as having two objects, first, to ascertain the rights of the plaintiffs to the property; and, second, to obtain a partition of it. Viewed in this manner, the District Court was authorized to retain jurisdiction of the case.

It is not exclusively cognizable by the Court of Pro-batesi not being strictly a partition of a succession, for the question first to be settled, is, whether any part of the land in dispute, belongs to the succession of Henry Rhodes. According to the points made on the part of the defendants, we are called on to examine the effects of the contract, on which the plaintiffs rely for a judgment in their favor. It was made in authentic form, before a notary and two witnesses, and signed by both the parties.

No valuable consideration for the agreement is expressed in the instrument; but the plaintiffs attempted to supply this defect, by proof of payment of certain sums of money, made by Henry Rhodes to his brother John, being the consideration of the promise. The testimony to establish this fact was objected to, and several bills of exception are found to the opinion of the judge a quo, by which witnesses were received to prove the payment of money, not shown by the written contract to have any connection with it.

Whether the act under consideration be good or not, as a sale, we deem it unnecessary to determine,.believing it to be valid as a donation. It is clothed with all the formalities required by the Civil Code, to give force and effect to donations inter vivos. See the Civil Code of 1808, page 220. Opposed to the act as containing a valid donation, we are referred to the articles 43 and 48, found in the Civil Code, at page 218. In the first of these articles, it is declared, that “ a donation inter vivos can comprehend only the present property of the donor.

If it comprehends property to come, it shall be null with regard to that.” a donation in- “- ly the present ^onor^ífiteom-come" asitregardsthat, Held, that where madenaof°iandsS of which the donor was m possession only un-^equitable0 ti-whi1c'1 was firmed to him, the donation was vaua on the per-Action of title, In the present case the evidence shows, that the ancestor of the defendants was in possession of the property promised to the donee, at the time of the contract, under a purchase of the settlement right of a person named Brown.

His title, it is true, was inchoate; but he had reasonable and well grounded hopes, founded on the laws of congress, that it would be made perfect, and be completed, either by donation from the government, or by a right of pre-emption. Being in possession under color of title, which was afterwards confirmed to him by competent officers of the general government, so far as they could act on the case; we are of opinion, that the donor may be considered as having had an equitable title to the land in question, at the date of the . . . . donation.

He was m possession; therefore it cannot be viewed, strictly speaking, as property to come, and consequently the

article 43 of the Civil Code, does not govern the present case. The

article 48 is wholly inapplicable; for it i r i . ,, j i mi . has reference only to moveables and slaves. The contracting parties were brothers, and the testimony shows, that the donee held possession of part of the land, subsequent to the act of donation, and that his brother would not sell any part.' of it without his consent, which was given in a sale made of one hundred and sixty-eight acres. Under all the circumstances of the case, it is believed, that the plaintiffs are entitled to one half of the remainder of the tract of land in dispute, after deducting the number of acres sold by the brothers.

The certificate of confirmation by the register and receiver, and the subsequent order, specifying the location of the claim, affords such primfo facie evidence of title, as to require a transfer of right from the defendants to the plaintiffs, without waiting for a patent. The certificate and location must be considered as a fulfilment of the condition, on which the property was to be transferred to the. donee.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs, with the following amendments and additions: the property must be divided according to the terms of the donation, deducting from the tract now to be partitioned, one hundred and sixty-eight acres and ninety-three hundredths, already sold, &e. ° J J