TAGIASCO ET AL. vs. MOLINARI'S HEIRS, 9 La. 512

Mathews, J., delivered the opinion of the court. This suit is brought by the plaintiffs, as heirs instituted by will, or universal legatees óf a free woman of color, who was named Mavie Louise Roux. They claim a lot of ground and buildings thereon, and situated in Dauphin-street, between Toulouse and St. Peter, now in possession of the defendant, whoholds it as natural tutrix of her minor children. She obtained judgment in the courts below, from which the plaintiffs appealed.

The facts of the case are as follows: Antoine Molinari, late husband of the defendant, previous to his marriage with her, lived in a state of concubinage with the testatrix, Roux, who in the testament by which she institutes the plaintiffs as her heirs, recognizes them to be her natural children; during the period of the concubinage, as above stated, the paramour con- N veyed to his concubine the property now in dispute, by authentic act, reserving to himself the usufruct of it during his lifetime.

After his death, it remained in possession of the defendant, as tutrix of her children, unmolested, until the institution of the present action, for whom she claims the property as heirs to their father. In support of this claim, and in opposition to the title set up on the part of the plaintiffs, a counter letter, signed with the ordinary mark of the pretended purchaser, from Molinari, the father, attested by two witnesses, was offered and admitted in evidence on the part of defendant.

In this instrument, the concubine' acknowledges that the deed to her was fictitious, and made without any valuable consideration given for the lot pretended to have been sold. The right of the plaintiffs to bring suit -under the will of their ancestor cannot be disputed, although an exception to this effect is found in the record. The decision of the case depends mainly on the propriety of the opinion of the judge a quo by which he admitted the - counter letter in evidence, and the effect which that instrument must have on the claims of the parties, in pursuance of legal principles applicable to the subject.

Its introduction was excepted to on various grounds: 1st. That

an act under private signature is invalid,, unless signed with the name of the party in his own hand writing ; 2d. No parole evidence cap be admitted against what is contained in an authentic act; 3d. The testimonial proof of the signature of the two witnesses to the pretended document cannot be admitted,, and does not establish the signature or mark of the obligor; 4th. That parole evidence unaided by a counter letter is not admissible t0 Pl'ov'® the simulation of a contract.

The second and fourth of those propositions are so clearly in conformity with the laws of the country and the decisions of its courts of judicature, that if they stood alone and were applicable to the circumstances of this case, they would fully support the exception. But an instrument purporting to be a counter letter was offered in evidence and received by the court below ; the death, however, of the party to it, and of the subscribing witnesses, renders extremely difficult; proof of its genuineness and reality.

Another question is raised as to the legal effect which acts under private signature have on contracts evidenced by them, when they are solemnized only by the ordinary mark of the party who knew not how to sign his name. Against the force of such instruments, as written evidence, although verified by witnesses, many authorities have been cited from the French jurisprudence, from the Spanish laws, and from the old Civil Code, the rules of which and the laws of Spain were in force in this state, at the time the contracts between Molinari and his concubine were entered into.

We may at once admit that the doctrine maintained in France by the learned jurists of that kingdom, and the decisions of its tribunals of justice, prove the proposition assumed on the part of the plaintiff, viz : that acts sous seing privé evidenced by the ordinary mark of a party, in that country have not the force and effect of written evidence. This admission may be made without influence on the question now before the court, for the rules there established in relation to the celebration of contracts, and the evidence required to prove them, have not the force of law in' this country.

We will therefore look to the provisions of the Spanish law, and of the old Civil Code ; and may, without a violation of any general principle of jurisprudence, turn our attention to what was customary and usual in this country, touching contracts and the evidence by which they were supportable, both while it was a colony of Spain, and since it was brought under the government of the United States, particularly to what has been usual since- the change of government. The Spanish law directing the manner in which contracts in relation to real property were to be made, has apparent contradictions in it.

We there find a general provision that all contracts may be entered into either by parole or by writing; and there are other rules which seem to . imply that all those which relate to immoveables were required to be passed before a notary public. By some of the decisions of this court, the general rule which seemed to autho-rise all kinds of contracts to be made by parole, under the influence of thátlaw, has been adopted.

Since the change of authority in this country there has been so much specific legislation, and was at the time when the contracts now under consideration were entered into, that the former laws may have been referred to mainly as a source from which sound legal precepts might be drawn, being based on the Roman civil law, which contains an inexhaustible fountain of sound legal reasoning. Let us turn then to the texts of the code of 1808.

We there find that contracts for the alienation of immoveable property made under private signature, and attested by a competent number of witnesses, are recognized as valid between the parties and their successors. But it is contended that an ordinary mark of a person who does not know how to write his name, is no signature. If we go to the root of the word, we find that it means any sign, stamp or mark. (See Webster’s dictionary, verbo signature.) Perhaps, however, according to the general intendment of law, it means a sign manual: that is, the name of a person written or subscribed by himself.

But the force and effect to be given to instruments which have for signatures only the ordinary marks of parties, depend more on rules of evidence than general dicta of law, relative to the validity of contracts required to be made in writing.

The fact of the counter letter adduced in the present instance having been .made in writing, cannot be denied ; yet its validity and genuineness depends on proof, and in all cases where these things are established by legal evidence, instruments signed by the ordinary mark of a person incapable of writing his name, ought to be held as written evidence, in the administration of justice, according to the rules of evidence by which the courts of this state have been governed ever since the country became an integral part of the United States.

These rules have been borrowed in great part from the English law, as having a more solid foundation jQ common sense and reason than the systems of other civilized , J states relating to this subject. Now according to those rules, adopted, the ordinary mark of a party to a contract places the evidence of it on a footing with all private instruments1 in writing. The same rules authorise proof of the genuineness of instruments similar to the one now under considera-ev^ence such as has been adduced in the present case.

These rules must yield to positive legislation contrary to them; but we find none such any where in our law. The co¿|e mvems in this case, contains no express pro- . . 1 r visions, contrary to the general rules of evidence, which has been ad°pted as above stated. As to what has been customary, we find testimony which ,goes to establish the fact, ... ° : that writings under private signatures, have both before and since the adoption of the Civil Code, been received as written acts’ w^en they have only the ordinary marie of the parties, if made before two witnesses.

That this custom should have been Common in this country, is not surprising, when we consider the great neglect of education which seems to have prevailed, while it was a colony of the Spanish government, and which, it is feared, yet too much prevails..

If arguments ab inconvenienti may be allowed a place in this opinion, (and in support of such arguments, we have the authority of Lord Coke, who declares that argumentum, ab inconvenienti semper valet in legem,) it is evident, that great inconvenience would result to many of our fellow citizens, if acts, such as the one now before us, should be denied the rank of written evidence. Some difficulty still remains, in respect to the manner in which proof was made of the counter-letter. The party to it and the witnesses are all dead.

The sign or signature of the former could not be proven, in consequence of their being rarely any different and distinct characters in ordinary marks. The force and effect to be given to inslLTiments, which have for signatures only the ordinary marks of the parties to them, depend more upon rules of evidence than the dicta of law, relating to the validity of contracts required to be made in writing. The genuineness of Instruments under private signature, depends on proof.

And in all cases, when they are established by legal evidence, instruments signed by the ordinary mark of a person incapable of writing his own name, ought be held as written evidence.

The rules of evidence by ■which courts of state°'have been governed, since government, rowed in a great Engiish°iaw ^as having a mere in reason and common sense.- According to the rules of evi-eciTn’di^state" the ordinary mark oí a party ‘to a contract, dence ofu oTa private "¿hsíto-meats in-writing, The general rule is, that proof of the signatures of the witnesses to an private signature, when they are dead or ah-establish tóa/of or Pr0of 0f the genuineness oí under private ed'bythé pJE-ty ™.akinS hei; or-amary mark or cross, andattest-nesses,^may'be ^idence Pafter the witnesses and Improving "rilé natures°and that - they were re-good^cimracter, ^staforgery* The party who P“ts initials gives a kind of üie^nstrument on. he writes them, and is binding on materially d‘fferent from mark. r lv.,r ciny In the case of Dismukes et al. vs.

Musgrove, 7 Martin, N. S., 58, this court entered largely into the consideration of the rules which prevail under the English jurisprudence and in several states of the Union, in relation to the evidence required to support an instrument under private signature, when the parties and witnesses were dead, or from other cause the testimony of the latter could not be procured ; .. , , . . . and it was then held, that in such a case prooí would, be required of the signature of the party, as well as those of the witnesses.

We still adhere to the doctrine then established, although, perhaps, the rule presented is more onerous than that of the common law. ■ But when it becomes an absolute impossibility to prove the handwriting, or sign manual of the party to dn instrument, in consequence of his inability to write, must it be treated as a nullity in the face of evidence, and circumstances which are sufficient to convince every honest and disinterested man, (who attends to the testimony) of its truth and genuineness? We think not.

In the present ° 1 case, the signature of both witnesses were fully proven, and that they were men of such honesty, and general uprightness of conduct, that they could not have been induced i0 lend their aid to a forgery. The circumstance of the mode of life of Molinari and his concubine, is such as to raise a presumption that the sale to the latter was fictitious. The price as stated in the pretended act of sale, was three thousand dollars, said to have been paid at the time of executing the deed.

At the period when this transaction took place, it was much more difficult to raise money than at present; the country was then very deficient in capital, if compared to the present existing state of things. It appears to us, that it would require faith, unsupported by evidence, to believe that a person of the class, condition and conduct of the mother of the plaintiffs, had at any one time in her pos- . 1 i , , session, or at her command, the sum of three thousand dollars. In the case of Weis vs.

Mainhaut, 4 Louisiana Reports, 121, the initial letters of a party’s name were held to be binding on him, and it appears to us that they do not differ very materially from an ordinary mark. From a careful examination of the evidence of this case, both express and circumstantial, we are of opinion that the act of sale from Molinari to his concubine, Roux, was fictitious, and intended to disguise a donation made to her, which could not legally be done. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.