POYDRAS vs. MOURAIN, 9 La. 492

Martin J., delivered the opinion of the court.

The will of the late Julien Poydras, of the parish of Pointe Coupée, directs that all his slaves at his death, are to be considered as attached to his several plantations, on which they had been and were employed, and that his executors be required to sell them with, and as attached to the plantations on which they were situated, the vendee to come under the further obligation of freeing them at a certain period, and that the slaves thus emancipated, who may evidently be of the age of sixty years and upwards, have the immunity or privilege of remaining thereon, and to be supported without labor being required from them, with an annual stipend in money also allowed, &c.

The defendant purchased from the executors, one of the plantations of the deceased, with a large number of slaves attached thereto, and by the terms expressed in the act of sale,, subscribed to the conditions imposed by the will. In contempt of the obligation thus contracted, the defendant attempted to sell forty-two of those slaves, separately and apart from the plantation. The executors of the late J.

Poydras having been discharged from their trust, and being functi officiis, the present suit was instituted by the plaintiff as one of the heirs of the testator, who in that capacity sought to have the will carried, into effect, by compelling a compliance with its provisions, and the strict performance of the contract and sale made under it. He obtained a provisional injunction in the first instance, to stay the sale the defendant was about to make, of the slaves in question.

The heir who succeeds to tlxe rights of his an-ter the executors discharge<b visions of the an-see that his in-effect against pureha-the8heir has^o j£e matter.eSt m The defendant excepted to the capacity and right of the plaintiff, to sue and maintain this action. The exception-was, however, overruled by the judge presiding, and an answer put in to the merits, in which the defendant' asserted her right to sell the slaves, separately and apart from the plantation,' alleging that the terms and conditions of the will, which were sought to be specifically enforced, were null and void.

The injunction was made perpetual, and the defendant appealed, An exception to the present plaintiff’s capacity to institute * ^ ^ i a suit of this kind, was pleaded in another case, relating to a number of these slaves, under the will of the late Julien Poydras, and sustained by the judge of the district, then presiding. On appeal, this court reversed the decision of the judge a quo, overruled the exception, and maintained the plaintiff’s right of action. See case of Poydras vs. Taylor, just decided, ante. 488.

The plaintiff, after stating his heirship, declares he acts as the protector of the humble beings, who, like himself, were the objects of his ancestor’s benevolence. It was urged with much zeal, in the argument at the bar, that neither the slaves nor any person for them, could stand in judgment to prevent their being sold.

In the case of the present plaintiff against Taylor, just decided, and referred to above, this court was of opinion, that after the executors . were discharged, the heir had an undoubted right, as having succeeded to all the rights and actions of the ancestor, to require the specific performance of the terms and conditions of a sale of part of the estate, made by the executors,, or to demand damages for its non-performance, or to claim its rescission for a breach of its terms and conditions; that this right of the plaintiff was not impaired by an avowal that his object was to see the will of his ancestor rigorously, complied with.

We have no reason to be dissatisfied with the opinion we then expressed, and conclude that the first judge did not err in overruling the exception in this case.' On the merits, the defendant claims the right to sell these slaves singly, separately and apart from the plantation, under the authority of an adjudged case, Moosa vs. Allain, 4 Martin, N. S., 99. This was the case of one of the slaves of the late Julien Poydras, who complained of his removal from the plantation to which he was attached, and with which he had been sold at the sale of the estate.

This court then expressed the opinion that the will secured to the plaintiff the faculty of staying and being supported on the plantation to which he belonged, and to be emancipated on arriving at the age of sixty years ; but that the purchaser of these slaves had, until their emancipation, the right to their labor wherever he chooses to require it. The right of the purchaser in that case, was considered merely in regard to the then plaintiff, who was himself a slave. He could vindicate no right in a court of justice, except his claim to freedom, or some matter relating thereto.

The rights of the purchaser in that case, who had the slave in possession, in relation to his vendor or any person exercising the rights of his vendor, were not considered ; they could not be in that case. Admitting that the present plaintiff could not successfully complain and interfere, if the defendant in the present case employed the slaves in question off the plantation with which they were- sold, and to which they were attached, it would not necessarily follow that he could not resist the defendant’s attempt to sell them singly, separately and apart from the plantation.

Such a sale would detach them from the plantation, to which the will and the sale made in conformity to it, by the executor of the testator and the ancestor of the plaintiff require they should remain and continue attached.

As long as the defendant, who is the vendee of the executors under the will, continues to be the owner of both the plantation and the slaves, the exercise of the plaintiff’s right to have‘the condition of the sale specifically performed or executed, remains unimpaired ; but if the defendant sells the plantation to three several owners, and the forty-two slaves thereon to as many others, then the exercise of the plaintiff’s right in requiring the-provisions of the will to be carried into execution, will become extremely difficult, burdensome and precarious.

So, where the testator provided in his will, that his slaves, after his death, should be kept on and attached to the plantations on which they were employed, and that the purchaser should be required to set them free after twenty-five years and emancipate and support, without labor, and give an annual stipend to such as were sixty years old, &c.: Held, that the purchaser could not alienate such slaves, apart from, the plantation, and was bound to comply with the conditions and provisions of the will. The defendant will no longer have it in her power specifically to comply with the conditions of the sale.

The obligation to support the old emancipated negroes will not attach on the vendees of the land as a servitude. It is a servitude which is essentially due to an estate. ' The vendees of the slaves, -without notice, will be under no obligation to comply with the terms and conditions of the sale under which their vendor acquired them. The exercise of the right of the plaintiff, will then be so burdensome, difficult and precarious that the right itself will become almost worthless. Justice requires that the defendant should not be permitted to disregard the, obligation she has solemnly contracted.

But it is urged that the terms and conditions of the will, which are now sought to be enforced, ■ are null and void, as destructive of the absolute power which sound policy and the laws of the land require the master should exercise over his slaves. ’ So far as regards the slaves, the power of the master is indeed absolute. The slave cannot resist, or be heard if be complain of the abuse of this power; but in relation, to other-persons, nothing prevents the master from being compelled or coerced to comply with his engagements as vendee, which he contracted when he acquired his slave.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.