Weems v. George
54 U.S. 190 (1851)

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U.S. Supreme Court

Weems v. George, 54 U.S. 13 How. 190 190 (1851)

Weems v. George

54 U.S. (13 How.) 190

Syllabus

Where there was a sale of an undivided moiety of a tract of land, and the purchaser undertook to extinguish certain liens upon it, which he failed to do, and in consequence of such failure the liens were enforced and had to be paid by the heirs of the original owner, a suit by these heirs against the purchaser to recover damages for the nonfulfillment of his contract to extinguish the liens was not within the prohibition of the 11th section of the Judiciary Act, 1 Stat. 78. The heirs, being aliens, had a right to sue in the circuit court.

In a trial in Louisiana where the judge tried the whole case without the intervention of a jury, a bill of exceptions to the admission of testimony by the judge cannot be sustained in this Court.

The extinguishment of the liens by the heirs of the original owner was effected by process of law and attended with costs. It was proper that these costs also, as well as

Page 54 U. S. 191

the amount of the liens, should be recovered by the heirs from the defaulting party who had failed to fulfill his contract. The article, 1929 of the Code of Louisiana, does not include this case, but it is included within article 1924.

The plaintiff in error, and Alexander George, being joint owners of certain real property, made a partition of it between them on 14 January, 1847, by a written act of partition, and the plaintiff in error undertook and promised to pay certain promissory notes made by Alexander George in favor of John McClain Durand, and which were secured by mortgage on the property described in the act of partition, among which were two notes, one for the sum of $1,305.38, payable on 1 January, 1848, with interest at six percent per annum from maturity, and one for the sum of $1,250.22, payable on 1 January, 1849, with interest at six percent per annum from maturity. When the note for $1,305.38 fell due, the plaintiff in error paid $600 on account upon it, leaving the remainder unpaid, and when the other note fell due he failed to pay it also. After default was made in the payment of the last note, the holder of the two notes instituted suit against the defendants in error, the heirs and legal representatives of Alexander George, who was then dead, and recovered the amount due on them, viz., $1,955.60 and costs of protest, with interest at six percent per annum on $705.38, from 4 January, 1848, and on the remainder from 4 January, 1849, by judgment, and issued an execution or fi. fa., under which certain slaves were seized in the parish of St. Tammany and brought over to the City of New Orleans, where they were sold on 13 June, 1849, and the sum of $2,435.88, out of the proceeds of the sale, were applied to the payment of the debt and of the costs made.

On 1 December, 1849, Ann George &c., the defendants in error, filed their petition against Weems in the Circuit Court of the United States for the Eastern District of Louisiana, claiming to be reimbursed this sum of $2,435.88, with interest and costs. Another claim was made for the value of a negro slave who died, but as a remittitur was entered before final judgment, it is not necessary to notice this further

The defendant put in two pleas to the jurisdiction: 1st that the plaintiffs were not aliens, and 2d that they derived their right from George, and as he and Weems were both citizens of Louisiana, the plaintiffs were prohibited by the 11th section of the Judiciary Act from bringing suit in the United States court. These pleas were overruled.

After sundry other proceedings, the defendant filed the following answer.

Page 54 U. S. 192

"Now comes the defendant in the above entitled suit and denies all and singular the allegations in the plaintiffs' petition contained; he denies specially that the plaintiffs are the heirs of said Alexander George, or that they have or ever had any interest in the succession of said Alexander George. He denies that plaintiffs ever authorized the institution of this suit, and avers that they have no interest in the pretended causes of action set forth in said petition. He avers also that he is in no manner liable to plaintiffs herein. Your respondent further says that if at any time he has refused or failed to pay any of the notes mentioned in said petition, it was because one Rickerman had brought suit against the succession of said Alexander George, claiming a lien and privilege upon said island for work, labor &c., in constructing a levee thereon, which lien and privilege neither said Durand nor the curator of said succession would discharge, and your respondent is in no way liable for the consequences of such refusal. Wherefore defendant prays to be hence dismissed with his costs, and for general relief &c."

"CHAS. M. EMERSON"

"J. S. WHITTAKER"

"Defendant's attorneys"

On 4 April, 1850, the cause came on for trial before the judge, without a jury, when the following final judgment was given, viz.:

"This cause this day came on to be heard, Halsey and Bonford, Esqs., appearing for the plaintiffs, and Emerson, Esq., for defendant. W hen, after argument of counsel, the court being satisfied that the law and the evidence are in favor of the plaintiffs, Ann George, doth order, adjudge, and decree, that the said plaintiffs do have and recover judgment against the defendant Alexander W. Weems for the sum of two thousand four hundred and thirty-five dollars and eighty-eight cents, with interest on nineteen hundred and fifty-five dollars and sixty cents of said sum, from 13 June, 1849, at the rate of six percentum per annum, until paid, and costs of suit to be taxed."

"Judgment rendered 4 April, 1850."

"Judgment signed 22 April, 1850."

"THEODORE H. McCALEB [SEAL]"

"United States judge"

In the course of the trial, the following bill of exceptions was taken.

"Be it remembered, that on the trial of this cause, the plaintiffs offered in evidence a certificate marked D, of one N. B. Harmer, clerk of the eighth Judicial District Court for the Parish of St. Tammany for the purpose of proving that certain claims against the succession of Alexander George were satisfied and

Page 54 U. S. 193

paid by the heirs of said George. To the introduction of this document the defendant objected on the ground that it was not competent nor within the official duties and acts of the clerk to certify to the existence of facts from the inspection of and from documents and papers on file in the suit, and that the facts and the papers showing them should have been copied and the certificate given as to the verity of the copy. The court overruled the objection and admitted the evidence."

"Be it remembered also that on the trial of said cause, the plaintiffs offered one J. M. Durand as a witness to prove that he had brought suit against the defendant in this suit, the said Alexander W. Weems, to recover the amount of the notes set forth in this suit, and that said Weems had taken a suspensive appeal from an order of seizure and sale to the Supreme Court of the State of Louisiana. The defendant objected to these facts' being stated by the witness on the ground that it was not competent to prove the contents or any part of the contents of written documents or of judicial records by parol without first proving the destruction of the said documents or records. But the court overruled the objection and permitted the witness to testify to the facts above mentioned."

"THEODORE H. McCALEB, United States Judge"

The defendants brought the case up to this Court by writ of error.

Page 54 U. S. 195

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