Under the laws of Louisiana and the decisions of the courts of
that state, a mark for the name to an instrument by a person who is
unable to write his name is of the same effect as a signature of
the name.
A bill of sale of slaves and furniture reciting that the full
consideration for the property transferred had been received, and
which does not contain any stipulations or obligations of the party
to whom it is given, is not a synalagmatic contract, under the laws
of Louisiana, and the law does not require that such a bill of sale
shall have been made in as many originals as there were parties
having a direct interest in it, or that it should have been signed
by the vendee.
Evidence will be legal as rebutting testimony as to repel an
imputation or charge of fraud which would not be admissible as
original evidence.
The defendants in error, Henry Franklin and wife, on 23 January,
1836, presented a petition to the District Court of the United
States for the Eastern District of Louisiana for the recovery of
certain slaves, with their children, and also of certain stock and
household furniture which the petition alleged had been sold to him
by Joseph Milah by a bill of sale duly recorded in the proper
notarial office. The bill of sale was in the following words:
"State of Louisiana, Parish of St. Helena"
"Know all men to whom these presents may come that I, Joseph
Milah, have this day bargained, sold, and delivered unto Henry
Franklin, his heirs, executors, administrators, and assigns, six
negroes, namely, one negro woman, named Neemy; one boy, do. John;
one do. Sam; one do. Nels; one negro girl, named Harriet; one do.
Jenny; together with all of my cattle, hogs, horses, household and
kitchen furniture, for the sum of twenty-eight hundred dollars, to
me in hand paid, which property I do warrant and defend from me, my
heirs, executors, and assigns, to him, his heirs, executors,
administrators, and assigns forever. "
Page 37 U. S. 152
"In witness whereof, I have hereunto set my hand and seal, this
17 July, 1819."
"[Signed] JOSEPH his X mark MILAH"
"Test: "
"WM. McMICHAEL,"
"JOEL OTT [L.S.]"
The condition of the above bill of sale is such, that the above
mentioned property remain in my possession so long as I live, and
after my body is consigned to the grave, to remain, as
above-mentioned, in the above bill of sale.
"[Signed] JOSEPH his X mark MILAH"
"Test: "
"WM. McMICHAEL"
"JOEL OTT"
"
[Endorsed]"
"I certify the within to be truly recorded in register, in page
55, according to the law and usage of this state. In faith whereof,
I grant these presents under my signature, and the impress of my
seal of office, at St. Helena, this 23 July, 1819."
"[Signed] JAMES McKIE [SEAL]"
Joseph Milah died in July, 1834, and the petition claimed that
the plaintiffs were entitled to the negroes, with their children,
and the other property mentioned in the bill of sale, which, at the
time of bringing the suit, were in the possession of the
defendants, who held and detained them, and have refused to deliver
them to the petitioners.
On the fifth day of February, 1836, John and Letitia Zacharie
answered the petition, admitting they were in the possession of the
negroes mentioned in the petition, and they aver that Letitia
Zacharie is in such possession, in her capacity of tutrix of her
minor children, who are the lawful proprietors of them by
inheritance, from their father, Joseph Milah. They deny that the
bill of sale was ever signed by Joseph Milah, and if signed by him,
it was done in error
Page 37 U. S. 153
and through false and fraudulent representations of the
plaintiff, and no consideration was given for the same, and the
same was fictitious and collusive and intended to cover or conceal
a disguised donation of the slaves mentioned in the same, and was
therefore null and void. The defendants asked for a trial by a
jury. Afterwards, by a supplemental answer, the defendants say that
at the time of the alleged sale, under private signature, Joseph
Milah had neither children or descendants actually living, and
since the same, the children of which Letitia Zacharie is the
tutrix have been born and are now living.
On the trial there was given in evidence by the plaintiffs,
among other documents, an instrument executed in South Carolina,
Richland District, by Joseph Milah on 11 July, 1805, by which
Joseph Milah, under his hand and seal, gave a negro wench and a
negro boy, and also his personal property, to Sarah McGuire. This
deed was regularly acknowledged; and was recorded in the Richland
District in South Carolina on 10 December, 1805.
The cause was tried by a jury, and a verdict was rendered for
the plaintiffs, on which the court gave a judgment. The defendant
took two bills of exceptions.
The first bill of exceptions was in the following terms:
"On the trial of this cause, the plaintiff offered in evidence
an instrument in writing to his petition annexed, and bearing date
17 July, 1819, and purporting to be executed by Joseph Milah by the
affixing of his mark, and offered to prove same by the evidence of
William McMichael and Joseph Ott, whose signatures are affixed as
subscribing witnesses, which instrument is made part of this bill
of exceptions: the defendants objected to the introduction of said
instrument and testimony on the ground 1st, that being an
instrument purporting to convey slaves, the same was null and void
as not having been signed by the vendor; and that no parol proof
could be admitted to prove its execution; 2. that a mark is not a
signature within the provision of the laws of Louisiana, in
relation to the conveyance of slaves; 3. that the instrument,
containing a synalagmatic contract or mutual and reciprocal
obligation, not being in the form of an authentic act, was invalid
because not made in as many originals as there were parties having
a direct interest; 4. that the same was not signed by the vendee.
But the court overruled the objections."
The second bill of exceptions was taken to the admission in
evidence
Page 37 U. S. 154
of the instrument executed in Richland District, South Carolina,
as a gift or donation of two slaves and certain personal
property.
1. Because the plaintiffs in their petition claim to have a
title to the slaves referred to in their petition by virtue of a
bill of sale to Henry Franklin, one of the plaintiffs, under date
of 17 July, 1819, and that they cannot offer evidence to establish
title from any other source than that therein stated.
2. Because there is no evidence of the identity of the person by
whom this instrument purports to have been executed, with James
Milah, under whom plaintiffs claim, nor of the slaves named in the
petition.
The defendants also moved for a new trial, on reasons filed;
which motion was overruled by the court.
The defendants prosecuted this writ of error.
Page 37 U. S. 160
MR. JUSTICE BARBOUR delivered the opinion of the Court.
It was a suit commenced by the defendant in error for himself
and wife by a petition, according to the Louisiana practice, for
the recovery of several slaves (with their increase) and other
property, consisting of stock of several kinds, and household and
kitchen furniture, which he alleged had been sold to him, by a
certain Joseph Milah, by a bill of sale, duly recorded in the
proper notarial office, of which bill of sale, profert is made in
the petition, and which is in the following words,
viz.,
"Know all men to whom these presents may come that I, Joseph
Milah, have this day bargained, sold and delivered unto Henry
Franklin, his heirs, executors, administrators and assigns, six
negroes [naming them], together with all of my cattle, hogs,
horses, household and kitchen furniture, for the sum of
twenty-eight hundred dollars to me in hand paid; which property, I
do warrant and defend,"
&c. Signed Joseph Milah, with his mark. To which was added
the following condition,
viz.,
"The condition of the above bill of sale is such that the
above-mentioned property remain in my possession so long as I live,
and after my body is consigned to the grave, to remain as
above-mentioned in the above bill of sale."
The defendants, Zacharie and wife, filed their answer denying
all the allegations in the petition except as they thereinafter
specially admitted. They then proceed to state that the female
defendant was in possession of the negroes referred to in the
petition; that she possessed them in her capacity of tutrix of her
minor children, John and Josiah, whom she avers to be the lawful
proprietors thereof, by a just title, to-wit, by inheritance from
their father, Joseph Milah; they denied that the writing attached
to
Page 37 U. S. 161
the plaintiff's petition, was ever signed or executed by Milah,
and required strict proof thereof; they alleged that, if it ever
were so signed and executed, it was done in error and through the
false and fraudulent representations of the plaintiff, and that no
consideration was ever given or received therefor; that if it ever
were signed or executed by Milah, it was fictitious and collusive,
intended to cover or conceal a disguised donation of the slaves
therein mentioned, and that as such it was null and void, not
having been made with the formalities required by law, and they
prayed for a trial by jury.
The defendants afterwards filed a supplemental answer stating
that, at the time when the alleged sale, under private signature,
purported to have been executed, Milah had neither children nor
descendants actually living, and that legitimate children of said
Milah were afterwards born and were then living.
A verdict and judgment were rendered in favor of the
plaintiff.
At the trial, one bill of exceptions was taken by the plaintiff,
and two by the defendant. As the judgment was in plaintiff's favor,
it is unnecessary to consider the exception taken by him; we
therefore pass at once to the consideration of those taken by the
defendant, now plaintiffs in error.
The first of these was taken to the admission in evidence of the
bill of sale, of which profert was made in the petition, upon
several grounds which amounted in substance to this; that the
instrument, being one which purported to convey slaves, was null
and void because it was not signed by the vendor, a mark not being,
as alleged, a signature within the provision of the laws of
Louisiana in relation to slaves, and that no parol proof could be
admitted to prove its execution. And that the instrument being one
which contained mutual and reciprocal obligations, and not being in
the form of an authentic act, was invalid because not made in as
many originals, as there were parties having a direct interest, and
not signed by the vendee.
No adjudged case is produced by the counsel for the plaintiffs
in error, in support of the first branch of the objection that the
instrument has the mark, and not the signature of Milah. It is
rested on a provision of the law of Louisiana which declares "that
all sales of immoveable property or slaves shall be made by
authentic act or private signature."
Signature is indeed required, but the question is what is a
signature? If this question were necessarily to be decided by the
principles of law as settled in the courts of England and the
United States,
Page 37 U. S. 162
there would be no doubt of the truth of the legal proposition
that making a mark is signing, even in the attestation of a last
will and testament, which has been fenced around by the law with
more than ordinary guards because they are generally made by
parties when they are sick and when too they are frequently
inopes consilii, and when they therefore need all the
protection which the law can afford to them. This principle is
fully settled by many cases, amongst others, 8 Vesey 185, 504; 17
Vesey 459.
See also 5 John. 144.
But the question has been directly adjudicated in Louisiana. In
9 La. 512 it is said
"that the force and effect to be given to instruments which have
for signatures only the ordinary marks of the parties to them
depend more upon the 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 where they 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.
According to the rules of evidence as adopted in this state, the
ordinary mark of a party to a contract places the evidence of it on
a footing with all private instruments in writing."
To the same point,
see the case of
Madison v.
Zabriskie, 11 La. 251. This branch then of the objection to
the admission of the instrument in evidence is wholly untenable.
Nor is the other branch of the objection to its admissibility
better supported, as the first branch fails, as we have seen, for
the want of law to support it, so this second branch fails for want
of the fact the assumed existence of which is the only basis on
which it rests. That is it is not, in the language of the law, a
cynalagmatic contract -- or in other words it does not contain
mutual and reciprocal obligations, to which description of
contracts only does the objection at all apply.
All the words in the instrument, as well in its body as in the
condition, are the words of the maker of the instrument, the
vendor. The vendee does not sign it; he does not speak in it at
all. Consequently there are not and could not be any direct
stipulations by him, nor can any be implied from its language and
provisions, for the paper acknowledges on its face the receipt of
the whole purchase money, and nothing whatsoever was to be done by
the vendee.
The second exception taken by the defendant was to the admission
in evidence on the part of the plaintiff of an instrument of
writing bearing date July 11, 1805, in the State of South
Page 37 U. S. 163
Carolina, purporting to have been executed by Joseph Milah as a
gift or donation of two slaves and certain goods and household
furniture to one Sarah McGuire. The court, however, admitted the
evidence, and as we think, properly, for the reason assigned in the
bill of exceptions. From that it appears that previously to the
offering this last paper, the court had admitted evidence on the
part of the defendant to prove fraud and want of consideration, and
they then admitted the paper thus objected to as rebutting
evidence. Had it been offered and received by the court, as is
objected by the counsel of the defendant in error, as evidence of
title, it would, under the petition, have been inadmissible upon
the ground of a variance between the allegation and proof. But it
was distinctly received only for the purpose of repelling the parol
evidence, which had been given to prove fraud and want of
consideration, by showing that Milah had, as early as 1805,
manifested a disposition to give the property to the plaintiff's
wife, who, as appears from the record, was the sister of the former
wife of Milah, who had died without children; the plaintiff's wife
is the person named as donee in the deed before stated, as having
been executed by Milah in South Carolina.
When we speak of the plaintiff in this connection, we mean the
plaintiff in the court below, the now defendant in error.
After the verdict was rendered, the defendant in the court below
moved for a new trial for sundry reasons stated on the record,
which was refused. The granting or refusing of new trials rests in
the sound discretion of the court below, and is not the subject of
reversal in this Court. Without making further citations in proof
of this proposition, it will be sufficient to refer to
17 U. S. 4
Wheat. 220, where it is said by the Court that the first error
assigned is that the court refused to grant a new trial, but it has
been already decided, and is too plain for argument, that such a
refusal affords no ground for a writ of error. The judgment of the
court below is vested, and is therefore
Affirmed with costs.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Louisiana and was argued by counsel. On consideration
whereof it is now here adjudged and ordered by this Court that the
judgment of the said district court in this cause be and the same
is hereby affirmed with costs.
