Michoud v. Girod, 45 U.S. 503 (1846)
U.S. Supreme Court
Michoud v. Girod, 45 U.S. 4 How. 503 503 (1846)Michoud v. Girod
45 U.S. (4 How.) 503
Syllabus
A person cannot legally purchase on his own account that which his duty or trust requires him to sell on account of another, nor purchase on account of another that which he sells on his own account. He is not allowed to unite the two opposite characters of buyer and seller.
A purchase, per interpositam personam, by a trustee or agent, of the particular property of which he has the sale, or in which he represents another, whether he has an interest in it or not, carries fraud on the face of it.
This rule applies to a purchase by executors at open sale, although they were empowered by the will to sell the estate of their testator for the benefit of heirs and legatees, a part of which heirs and legatees they themselves were.
A purchase so made by executors will be set aside.
The decisions of the courts of several states upon this subject examined and remarked upon.
Relaxations of this rule of the civil law, which were made in some countries of Europe, were not adopted by the Spanish law, and of course never reached Louisiana. Nor were those relaxations carried so far as to allow a testamentary or dative executor to buy the property which he was appointed to administer.
The maxims and qualifications of the civil law, upon this point, examined.
Although courts of equity generally adopt the statutes of limitation, yet, in a case of actual fraud, they will grant relief within the lifetime of either of the parties upon whom the fraud is proved, or within thirty years after it has been discovered or become known to the party whose rights are affected by it.
Within what time a constructive trust will be barred must depend upon the circumstances of the case, and these are always examinable.
Acquittances given to an executor, without a full knowledge of all the circumstances, where such information had been withheld by the executor, and mutates and promises thrown out to prevent inquiry, are not binding.
The widow Pargoud and others, defendants in this Court, were complainants in the court below, and obtained a decree in their favor, from which the other parties appealed. They alleged that a series of fraudulent transactions occurred, commencing in 1813, by which they had been deprived of their fair share of the estate of Clause Francois Girod, whose heirs they were, and that the chief agent in this fraud was Nicholas Girod, a brother of the deceased Claude Francois Girod, and also a brother of some of the complainants, and relative of the rest.
Claude Francois Girod was a resident of the Parish of Assumption, in the State of Louisiana, and died in the month of November, 1813, leaving a last will and testament, dated on 30 November, 1812, and a codicil, dated on 4 November, 1813, which will was admitted to probate, with the codicil, on 8 November, 1813. He never was married, and left eight brothers and sisters, and the children of a predeceased sister. These surviving brothers and sisters, with the exception of Jacques, otherwise called Jacques Antoine Girod (who was excluded by the terms of the will), were the legal heirs of the deceased Claude Francois Girod, each for the one-eighth part of his estate and the succession, and the heirs and legal representatives of the said predeceased sister, the legal heirs by representation of their deceased mother, for the remaining eighth part of the estate.
The proceedings in the case were exceedingly complicated. There was a bill, and an amended bill, and a supplemental bill, and another amended bill, and then another amended bill. Instead of pursuing the case through all these details, the simplest course will be to state the charges in the bill, and the documents brought forward to sustain them.
The will of Claude Francois Girod was as follows:
"I, Claude Francois Girod, the legitimate son of Francois Silvestre Girod, deceased, and of the late Francois, born Dubois, native of Thone, in Savoy, diocese of Geneva, province of France, and now a resident of the Parish of Assumption, on Bayou Lafourche, in the State of Louisiana, being about sixty years of age, and desirous to die in the Roman Catholic and Apostolic religion, under which I have ever lived, with a firm belief in the mysteries of our holy religion, do ordain this my last will or testament, in case I should be overtaken by death, the hour of which I am uncertain of, and as it behooves all living beings to settle their temporal affairs, when they are in the full enjoyment of their health and reason, in order to avoid thereby the difficulties which arise when we are laboring under a dangerous disease, which takes from us the use of our reasonable faculties, and consequently deprives us of the
understanding and memory necessary to the faithful and peaceable settlement of our family affairs, with a view to avert from our heirs the difficulties always prejudicial to those that are absent. Now therefore, under these circumstances, I invoke the grace and clemency of God, to whom I recommend my soul when separated from my body; and I wish and ordain, that the latter be buried among faithful Christians, with all the usual rites of our mother church, leaving with my testamentary executors, herein after named, the performance of all pious works, such as causing three masses to be said on my behalf to my holy patron, as also funeral services, masses, &c."
"1. I declare that the property I am now possessed of are the earnings of my labor and savings, and consist of the following items, to-wit, three houses and several lots situated in suburb St. Mary, above the City of New Orleans, and one in Chartres Street, now occupied by my brother, Nicolas Girod; one main plantation, whereon I reside, situated in said Bayou Lafourche, with all the buildings, improvements, and appurtenances thereof, and being thirty-one and a half arpents front, together with the utensils, implements of husbandry, animals of all kind, and one hundred and odd slaves of different ages belonging to me; also, a quantity of lands situated in the different parishes of the bayou, the titles to which I hold in my possession; also, a certain sum of money is due to me, which I cannot ascertain at present, but which will be made to appear by the books and obligations in my power; also, I am the owner of upwards of two hundred and seventy bales of ginned cotton, now in my stores; also, I declare that I am indebted unto divers persons by obligations, and little by accounts, in a sum of about thirty thousand dollars."
"3. I give and bequeath to my parish of Thone, in Savoy, to have a solemn mass annually said on my behalf, and to contribute to the repairs of said church, a sum of two thousand dollars, such being my will."
"4. I give to the poor of my said parish, to be distributed among them so as to meet their most pressing wants, a sum of one thousand dollars, such being my will."
"5. I give and bequeath to the cousins, Dodos Gollie, of said parish, a sum of five hundred dollars, such being my will."
"6. I give and bequeath to the brothers and sisters, Joseph Suard, Sr., and Antoine Suard, Jr., sons of Antonine Suard, deceased, since about thirty years, residing at Cluse, in Fonsigny (Savoy), the sum of two thousand dollars, such being my will."
"7. I give and bequeath to my distant relations of said parish a sum of five hundred dollars, to be distributed among them, such being my will."
"8. I give and bequeath to the Charity Hospital of Thone, in Savoy, a sum of one thousand dollars, such being my will. "
"9. I give and bequeath to the children of my deceased sister, Francoise, wife of Poidebard, without prejudicing their rights in and to my succession, the sum of two thousand dollars, to be divided between them by equal portions, such being my will."
"10. I give and bequeath to my sister Teresa, wife of Quetant, without prejudice to her rights in my succession, a sum of one thousand dollars, such being my will."
"11. I give and bequeath to my god-daughter and sister, Rosalie, married at Taloire, her husband's name being unknown to me, a sum of one thousand dollars, without prejudice to her rights in my succession, such being my will."
"12. I give for once to my brother James Girod, a sum of four thousand dollars, without any other rights or pretensions whatever in and to my succession, such being my last will."
"13. I give and bequeath to my brother Claude, married, the sum of two thousand dollars, without prejudice to his rights in my succession, such being my last will."
"14. I give and bequeath to the Parish of Assumption, for the church wardens in Lafourche, where I now reside, a sum of five hundred dollars, for contributing to the construction of a church, such being my will."
"15. I give and bequeath to the mulatress Francoise Vils, for the faithful services she has rendered to me at my house, during a long space of time, a sum of six thousand dollars, which shall be paid to her (after my death) one, two, and three years, such being my will."
"16. I give and bequeath to my god-daughter Francoise, a free colored woman, the daughter of Rosette, a negro woman, a sum of fifteen hundred dollars, such being my last will."
"17. I give and bequeath to the mulatress Belanie, wife of Colas Meillen, a sum of two hundred dollars, such being my will."
"18. I give likewise to her younger sister Polline, a sum of two hundred dollars, such being my will."
"19. I give and bequeath to my mulatto slave Dominic, who is a blacksmith and rum distiller, his freedom, which he shall be put in possession of six months after my death, for his good and faithful services to me."
"20. I nominate for my testamentary executors the following persons, my brother Nicolas, who is my senior, and Jean Francois, my junior, the former being a merchant in New Orleans, and the second is a planter, residing at Washita, and in their default, Mr. Phillipon Sr. merchant at New Orleans, to whom I give, by the present olographic testament, full power and authority as required by law to take possession of all my property present and to come, to inventory, sell, and cause them to be sold, as to him will seem best for the heirs of all my brothers and sisters, present and absent, without intervention of justice, hereby annulling and declaring
void all other testaments, codicils, and donations, mortis causa, and other acts of last will which I may have made previous to and to the prejudice of the present, which is the only one I adopt as being my last will, in order that my heirs may inherit and enjoy my property with the benediction of God and mine &c."
"Done and passed on my plantation, at Lafourche, 30 November, 1812."
"[Signed] C. F. GIROD"
"J'H COURRIE, witness"
"SAINT FELIX, witness"
"Ne varietur _____"
"STATE OF LOUISIANA, PARISH OF ASSUMPTION"
"Monday, November, in the year 1813"
"At the request of Mr. Nicolas Girod, I, F. Corvaisier, judge of this parish, did repair to the plantation of the late C. F. Girod, where a bundle written over having been presented to me as the testament or last will of the said C. F. Girod, signed by him under date of the thirtieth of November, eighteen hundred and twelve, as also an open codicil signed by the deceased, in the presence of Messrs. Prevot, St. Felix, and Francois Bernard de Deva, I proceeded to the proof of said testament by swearing to that effect Messrs. St. Felix and J'h Courrie, witnesses to said testament, in the presence of Mr. Nicolas Girod, and then proceeded to open the same."
"[Signed] N. GIROD"
"J. L. COURRIE"
"SAINT FELIX BECHE"
"Justice of the Peace"
"F. CORREJOLLES, witness"
"F. CORVAISIER, Judge"
"And by the opening of said testament we saw that Messrs. N'as Girod and F'ois Girod, brothers of the deceased, were appointed testamentary executors."
"[Signed] F. CORVAISIER, Judge"
There were four inventories made of the property of the deceased, namely:
November 12, 1813. In the Parish of Assumption.
February 3, 1814. In the Parish of Assumption.
February 18, 1814. In the Parish of Assumption.
February 26, 1814. In the City of New Orleans.
The amount of all these inventories was $124,594.45. In the fourth inventory was included the half of a house and lot at the corner of St. Louis and Chartres Streets in the City of New Orleans, whereas the complainants alleged that the whole of it belonged
to the deceased, and ought to have been included in the inventory.
The bill then charged, that the executors plotted and contrived to obtain possession, for their own use and benefit, and to the wrong and injury of their co-heirs, of the entire succession and estate of their deceased brother, by virtue of the following proceedings, which were charged with being illegal and fraudulent, namely:
On 19 January, 1814, the executors presented the following petition:
"To the Honorable Fran's Corvaisier, Judge of the Court of Probates of the Parish of Assumption, Lafourche."
"The petition of Nicholas and Jean Francois Girod, both merchants, residing in the State of Louisiana and testamentary executors of the late Claude Francois Girod, deceased, in the said parish, humbly showeth:"
"That their deceased brother, Claude Francois Girod, by his testament dated 30 November, 1812, has appointed them his testamentary executors and detainers of his estate, and as such given to them full power and authority to cause an inventory of all his property to be made, without intervention of justice, to sell or cause to be sold his property, in whole or in part, as to them will seem best for their own interests, and for those of the absent heirs named in said testament."
"Wherefore petitioners pray the Honorable Court to order, that the sale of the movables, movable effects, and of the main plantation, as also of the slaves of both sexes employed thereon, and other lands adjoining thereto, and making part thereof in the lifetime of the deceased, be made at public auction, for cash, as consisting in part of perishable objects, and for the purpose of paying the debts of the succession, after the usual delays, advertisements, and publications required by law."
"19 of January, 1814."
"[Signed] N. GIROD, Testamentary Executor"
"JN. FS. GIROD, Testamentary Executor"
On 16 February, 1814, the following bond was executed:
"Whereas the honorable judge, Francois Corvaisier, thinks that he is not authorized to sell the several properties situated in the Parish of Lafourche, interior, as being without the jurisdiction of his said parish, and whereas we are desirous to remove all the liabilities which the said honorable judge might subject himself to, by selling said lands in the same manner, and at the same time, as those situated within his jurisdiction. Now therefore, as testamentary
executors of the late C. F. Girod, we do bind ourselves by these presents to protect and warrant said honorable judge against all the troubles and difficulties which might be the consequence of his thus selling the lands of the succession situated out of this parish."
"In faith whereof we have signed these presents, to be by him used as of right. Parish of Assumption, the 16 February, 1814."
"[Signed] JN. FS. GIROD"
"JN. FS. GIROD, Executor"
On 18 February, 1814, a sale took place, as evidenced by the following paper:
"State of Louisiana, Parish of Assumption, the eighteenth day of February in the year 1814."
"On the day and year aforewritten, upon the request of the testamentary executors of the late C. F. Girod, I, Francois Corvaisier, judge of the said parish, did repair to the sugar plantation of the deceased, and we there proceeded to the sale and adjudication (as requested), of the property, both movable and immovable, belonging to the succession, to-wit:"
"[Then follows an enumeration of plantations, tracts of land, and personal property.]"
"N.B. A certain lot of ground situated at Donaldsonville, which, through error, was included in the original inventory, has not been sold, because it does not belong to the succession, but to one F'se Wiltz, a free woman of color. And the present sale being concluded on the day and year aforewritten, we have closed these presents, amounting to the total sum of eighty-four thousand seven hundred and fifty-five dollars and forty cents, omissions and errors of calculations excepted. And the witnesses, the last appraisers, and the parties interested, have signed, before the judge of the aforesaid Parish of Assumption, on the 18th of February, 1814."
"[Signed] JN. FS. GIROD"
"Testamentary Executor, for self, and by"
"procuration of his brother, N a's Girod"
"ETIENNE BOUDREAUY, witness."
"JACQUES TERIOT do."
"L. RICHE do."
"P. L. LAURET do."
"FS. CORREJOLES do."
"Ordinary mark of PIERRE CANCIEL do."
"JUAN VIVES do."
"J. BERN'DO DE DEVA do."
"Before me, F. CORVAISIER, Judge"
On the same day, namely, 18 February, 1814, the following judicial adjudication of the property was made, being in the nature of a deed:
"State of Louisiana, Parish of Assumption, 18 February, 1814"
"At the request of the testamentary executors of the late C. F. Girod, J. F. Corvaisier, judge of the aforesaid parish and of the court of probates, did repair to the sugar plantation of said deceased, where, the customary formalities being complied with, and the sale having been announced by the public crier, I proceeded, as requested, to sell at auction, and for cash, to the highest and last bidder, on account of said succession, or those interested therein, all the lands, slaves, and other property situated in this parish and county of Bayou Lafourche, to-wit: thirteen tracts of land or plantations, cultivated or otherwise, including thereon the sugar plantation [and] three small islands lying at the mouth of said bayou; also one hundred and seventeen slaves, employed on said sugar plantation, said slaves being of different ages and sexes, in good health, sick, infirm, crippled, and such as they are or may be, and no warranty being given to the purchaser against the redhibitory vices and maladies prescribed by law, said warranty being on the contrary absolutely and totally refused; also a cotton gin adjoining said sugar plantation; also a distillery in operation, with its implements and appurtenances; also all the horned cattle, mules, horses, carts, and wagons; also all the implements of husbandry of said sugar plantation; as also all the furniture [and] old silver plate; also twenty-two hundred gallons of Tafra, in the distillery aforesaid; also fifty-five thousand pounds of brown sugar lying on cisterns; also sixty-three bales of cotton (nine of which are damaged), weighing together twenty-three thousand one hundred and thirty pounds. All the above articles were sold separately, and cried by the public crier, with the exception of the sugar plantation, which was sold, with the furniture thereof, as appears by the judicial sale, detailed and deposited in the clerk's office of the said Parish of Assumption; and the whole, amounting together to the sum of eighty-four thousand seven hundred and fifty-five dollars and forty cents, was adjudicated for cash to Mr. Charles Saint Felix, who is satisfied therewith, for having seen, visited, received, and taken possession of same. And the aforesaid Nas. Girod and Jn. F. Girod, here present, declare, by the present act, that they have received from the said Charles Saint Felix the aforesaid sum of $84,755.40, for which acquittance is hereby given, and that they quitclaim and release him, and his heirs and assigns, of and from all claims and demands whatsoever."
"In testimony whereof, the aforesaid parties have signed the
present judicial sale, the day and year first above written, in presence of the undersigned witnesses, and of the parish judge."
"Signed, per procuration of Nas. Girod, JN. F. GIROD."
"JN. F. GIROD"
"SAINT FELIX"
"T. COURRIE"
"Witnesses -- F. CORREJOLLEES."
"Before me, J. CORVAISIER, Judge"
On 23 February, 1814, by a similar deed to the above, Saint Felix conveyed the whole of the property to Nicholas Girod and Jean F. Girod, describing it in the language above quoted, and for the same consideration. The deed concludes in the following language:
"All which articles, the said Saint Feli does, by these presents, retrocede to the said purchasers, Nas. Girod and Jean Francois Girod, for themselves, their heirs and assigns, without any reservation or reclamation whatever, for the price and sum of eighty-four thousand seven hundred and fifty-five dollars and forty cents, which the said vendor acknowledges, by these presents, to have received, in ready money, from the said purchasers, Nas. Girod and Jean Frs. Girod, and for which the present sale will operate as an acquittal and release against all and every person or persons whatever; the said Saint Felix herein declaring, that he is not bound to furnish the said purchasers with any other titles for the said lands and slaves, than those which have been given and delivered to him at the judicial sale aforesaid, and which he now delivers to said purchasers, who acknowledge to have received them, and to be satisfied therewith. Wherefore, the contracting parties agreeing both to these presents, have set their names to the same, the day and year aforewritten, in the presence of the undersigned witnesses, and of the parish judge aforesaid."
"[Signed] NAS. GIROD, per procuration"
"SAINT FELIX"
"JN. F. GIROD"
"JN. F. GIROD"
"Witness -- [Signed] J. COURRIE"
"FS. CORREJOLLES"
On 4 March, 1814, the following petition was presented, and order given for the sale of the property in New Orleans.
"To the Honorable James Pitot, Judge of the Court of Probates, the petition of Nicolas and Jean Francois Girod, testamentary executors of the late Claude Francois Girod, humbly showeth: "
"That in conformity with the order rendered by this honorable
court, they have caused an inventory to be made by the register of said court of all the property left by the deceased in this parish, and amounting, according to the appraisement made thereof, to the sum of twenty thousand seven hundred dollars, being the amount of eight lots, and a piece of ground, situated in this city, at the corner of St. Louis and Chartres Streets, as the whole appears from said inventory deposited in the clerk's office of said court. Petitioners further show that the succession of their late brother Claude Francois Girod is indebted in a sum of sixty thousand dollars or thereabouts, being the amount of the legacies and debts left by the deceased, which it is necessary to pay without delay. Wherefore petitioners pray this Honorable Court to order that the said piece of ground and eight lots be sold for cash, as also the said house, which, belonging in common to the succession and one of the petitioners, cannot be conveniently divided without loss or inconvenience to the owners, and petitioners further pray that the present petition be served upon the attorney appointed to represent the absent heirs, so that the law be complied with, and justice will be done."
"[Signed] N. GIROD, Mayor"
"Copied from the original in English."
"Order"
"Let Mr. C. R. Caune, attorney appointed by the court to represent the absent heirs of said Claude Francois Girod, be notified to show cause why the prayer of this petition should not be granted."
"[Signed] JS. PITOT"
"New Orleans, March 3, 1814"
"As attorney representing the absent heirs of the said late Claude Francois Girod, I have no objections to the petitioners' demand."
"[Signed] R. CAUNE, Attorney for absent heirs"
"New Orleans, March 4, 1814"
"Order"
"New Orleans, March 5, 1814."
"[Signed] JS. PITOT, Judge"
On 9 April, 1814, a sale was made of the property in the City of New Orleans, in conformity with the above order, which was inventoried on 26 February, as appeared by the following paper.
"And on this ninth day of the month of April, in the year of our Lord one thousand eight hundred and fourteen, and of the
independence of the United States of America the thirty-eighth, at the hour of ten A.M., I, Jean Baptiste Marc Brierre, deputy register of wills for the City and Parish of New Orleans, did repair to suburb Saint Mary for the purpose of selling to the highest and last bidder the houses and lots belonging to the succession of the late Claude Francois Girod, and there being, we did find and meet with Mr. Nicolas Girod, one of the testamentary executors of the deceased, and Charles Robert Caune, attorney at law, appointed by the court to represent the absent heirs. Whereupon, in their presence, and in that of Prosper Prieur and Sebastian Blondeau, witnesses hereto required, I did proclaim the said sale in a loud and audible voice, and on the following terms and conditions, to-wit:"
"Cash"
"[The paper then enumerated the lots of ground, and concluded as follows:]"
"And there remaining nothing else to be sold belonging to said succession, I, deputy register, aforesaid, closed and terminated the present process verbal. And after reading thereof, we ascertained the amount of said sale to be twenty-seven thousand seven hundred dollars, which sum was left by us in the hands of the said Nicolas Girod, testamentary executor aforesaid, who acknowledges the same, takes charge thereof, and has signed with the parties, the witnesses, and me, deputy register, the day, month, and year aforewritten."
"[Signed] BLONDEAU"
"PROSPER PRIEUR"
"R. CAUNE, Attorney"
"N. GIROD, Testamentary Executor"
"BRIERRE, Deputy Register"
On 28 April, 1814, Laignel conveyed to Nicholas Girod, as follows.
"Sale of House and Lots from Simon Laignel to Nicholas Girod"
"Before me, Michel de Armas, a notary public residing in New Orleans, State of Louisiana, United States of America, and in the presence of the witnesses hereinafter named and undersigned, personally appeared Mr. Simon Laignel, merchant, residing in suburb St. Mary, who has, by these presents, sold, transferred, and conveyed, from this day and forever, with no other warranty than that of his own acts and deeds, unto Mr. Nicolas Girod, of this city, merchant, here present and accepting purchaser for himself, his heirs and assigns."
"1st. Six lots of ground," &c., enumerating the lots, and concluding as follows:
"To have and to hold said property
unto the said purchaser, who may use, enjoy, and dispose of the same, in full and complete ownership, by virtue hereof. The property herein sold and described belong to the vendor, for having acquired the same at the public sale which the said Nicolas Girod, as testamentary executor of the late Claude Francois Girod, caused to be made on 9 April, instant, by the register of wills, of the property belonging to said Claude Francois Girod's succession, as the whole appears by the act of sale confirmatory of the adjudication aforesaid, passed before the notary undersigned on the 25th instant. By the certificate of the recorder of mortgages in this city, bearing even date herewith, it appears that there is no mortgage in the name of the vendor on the property herein bargained and sold."
"The present sale is made for and in consideration of the total sum of thirty-five thousand eight hundred dollars, which the said vendor acknowledges to have received cash, before the signing hereof, and out of the presence of the notary and witnesses undersigned, from the purchaser, to whom he grants full and ample acquittance and release of the same, renouncing the benefit of the exception, non numerata pecunia, and the two years' delay which the law accords to enforce said exception. Thus it was &c., promising, obliging, renouncing &c."
"Done and passed at New Orleans, in my office, in the presence of Messrs. Michel J. B. L. Fourcesy and Charles Robert Caune, both witnesses hereto required and domiciled in this city on the twenty-eighth of April in the year eighteen hundred and fourteen, and of the independence of America the thirty-eighth; and the said appearers, notary, and witnesses, have signed these presents, after reading thereof."
"[Signed] N. GIROD"
"SIMON LAIGNEL"
"FOURCESY"
"R. CAUNE"
"MICH'L DE ARMAS, Not. Pub."
The bill of the complainants in the court below also charged, that the executors, in order to appropriate, wickedly and fraudulently, to their own use and benefit, the funds of the succession, did, in their account of 23 May, 1817, place themselves as creditors of said succession for a sum of nearly forty-nine thousand dollars, to-wit, said Nicholas Girod for forty thousand four hundred and eighteen dollars and nine cents, and said Jean Francois Girod for eight thousand two hundred and fifty-three dollars and twenty cents, although no sum was due to them.
The proceedings upon which this charge was founded are as follows:
"STATE OF LOUISIANA: "
"NICHOLAS GIROD"
"v. No. 604 -- Parish court"
"J. F. GIROD, Executor of C. F."
"Girod, and R. C. Caune &c."
"Petition, filed November 26, 1814"
"To the Honorable James Pitot, Judge of the Parish Court for the Parish and City of New Orleans."
"The petition of Nicolas Girod, of the said city and parish, merchant, showeth, that Claude Francis Girod, of Lafourche, was indebted to your petitioner in a large sum of money previous to his decease; that thereto annexed is a detailed account of the money due by his estate, at this time, to your petitioner, which account, amounting to the sum of forty thousand five hundred and seventy-seven dollars and twenty cents, principal [and] interest, the executors of the said Claude F. Girod has refused to pay, though thereto frequently required. Wherefore your petitioner prays that John Francis Girod, now residing in the City of New Orleans aforesaid, one of the executors of the said Claude F. Girod, and R. C. Caune, the attorney appointed to represent the interest of the absent heirs, may be cited to appear and answer this petition."
"And your petitioner further prays, that they may be condemned to pay your petitioner the above sum of $40,577.20, with interest and costs."
"And your petitioner further prays all such other relief as the case may require, and to justice and equity many appertain."
"Received the annexed document, New Orleans, September 9, 1816."
"A copy thereof being annexed to the award of the arbitrators in the premises."
"Citation"
"Mr. J. F. Girod, Executor of C. F. Girod, and C. R. Caune: "
"You are hereby summoned to comply with the prayer of the annexed petition, or to file your answer thereto in writing with the clerk of the Parish of Orleans, at his office at New Orleans, in ten days after the service hereof, and if you fail herein, judgment will be given against you by default."
"Witness the Honorable James Pitot, judge of the said court, this 26 November, in the year of our Lord 181_."
"[Signed] SAM. P. MOORE, Deputy Clerk"
"Sheriff's Return"
"Served a copy of petition and citation on each [of] the
defendants, November 28, 1814; returned November 28, 1814."
"J. H. HOLLAND, Deputy Sheriff"
"Answer of J. F. Girod, filed November 29, 1814"
"To the Honorable James Pitot, Judge of the Court for the Parish and City of New Orleans, the answer of Jean F. Girod, one of the testamentary executors of the late C. F. Girod, to the petition of Nicholas Girod, humbly showeth: "
"That all and singular the items in the accounts presented by said Nicholas Girod, in his said petition, must be proved, to justify his claim against the succession of C. F. Girod, and for that purpose this respondent prays this Honorable Court to order what shall seem the best for the common interest of parties, and moreover to be hence dismissed with costs. And &c."
"[Signed] J. F. GIROD, Ex., Jr."
"Answer of R. Caune, filed November 29, 1814"
"To the Honorable James Pitot, Judge of the Parish Court, the answer of C. R. Caune, in his capacity of attorney representing the absent heirs of the late C. F. Girod, to the petition presented by Nicholas Girod, against the estate of the late aforesaid C. F. Girod: "
"Your respondent denies all facts mentioned in the plaintiff's petition, and he says that the plaintiff must be proven his claim before court, and prays the court to dismiss him, with costs of the suit; in duty bound, your petitioner shall ever pray."
"[Signed] R. CAUNE, Attorney"
"Order appointing Arbitrators, Parish court for the Parish and"
"City of New Orleans, November 27, 1814"
"Present: the Honorable James Pitot."
"NICOLAS GIROD v. J. F. GIROD, Ex. of C. F. Girod, and C. R. Caune, attorney for the absent heirs."
"Upon motion of Alfred Hennen, esquire, of counsel for the plaintiff, it is ordered that F. Percy and F. M. Rouzan be appointed arbitrators in this case, to decide on the claim of the plaintiff, and in case of their not agreeing, that the court appoint a third person as umpire. I do hereby certify the above."
"In testimony whereof I have hereunto set my hand and affixed the seal of the said court at the City of New Orleans, the day and year first above written, and of the independence of the United States the thirty-ninth."
"[Signed] SAM. P. MOORE, Deputy Clerk (swearing)"
"Personally appeared before me, one of the justices of the peace in and for the City and Parish of New Orleans, Ferdinand
Percy et F. M. Rouzan, of this city, who were duly sworn according to law as arbitrators as above named, that they will examine the accounts between the parties with impartiality, and give the report according to law."
"[Signed] F. MEFFER ROUZAN"
"F. PERCY, Jr."
"Subscribed and sworn to before me, at New Orleans, 10 December, 1814."
"[Signed] J. L. LAPANSE, Justice of the Peace"
"The undersigned arbitrators, appointed by a decree of the honorable the court of the City of New Orleans, under date of 25 November last, to verify and examine the accounts and demands of Nicolas Girod, a merchant residing in New Orleans, against the succession of the late Claude Francois Girod, his brother, who was a resident of the Parish of Lafourche, in this state, said succession being represented by Jean Francois Girod, one of the testamentary executors thereof, and C. R. Caune, attorney for the absent heirs, and to make a report thereon to said Honorable Court, do declare, under the sanctity of the oath they have taken, on the tenth of December instant, and which is hereto annexed, that after hearing the parties interested in this affair, and the witnesses by them introduced, after being sworn by John L. Laparge, a justice of the peace in this city, they have proceeded to the examination and verification of the documents, titles, accounts, and books exhibited to them by the parties interested in the manner following, to-wit: first, they have examined the sworn account produced by Nicolas Girod, on 25 November last, which consists of thirteen items, which the arbitrators have verified in the manner following."
The first item, amounting in capital to $ 1,602 for 801
hides, which the said Nicolas had left in the stores
of Claude Francois Girod, is established by the
declaration of Jean Francois Girod, who affirms
positively that the said 801 hides had been left in
the stores of said Claude Francois Girod, who disposed
of the same for his private account; the said Jean
Francois Girod declares likewise, that two dollars
was the price for hides in 1794, and that he himself
had purchased some at that price for his own account . . . $ 1,602.00
The second item, amounting in capital to $ 1,500, is
the produce of an account which Mr. Pierre Bousignes,
then clerk of the house of Claude F. Girod, had
collected and paid in the hands of said Claude F.
Girod, as making part of the funds
belonging to Nicolas Girod. Mr. Bousignes declared
under oath that he does not remember the precise amount
of that sum, but that it must have been something
like fifteen hundred dollars; he recollects that
that account was paid in before the fire of 1794,
and that several cash payments for the private
account of C. F. Girod were made out of the funds
belonging to said Nicolas Girod. . . . . . . . . . . . . . $ 1,500.00
The third item, amounting in capital to $ 6,222.18,
proceeds from the following remittances and effects,
to-wit : Jean Francois Girod paid in specie to
Claude Francois Girod, Nicolas Girod's interest,
say two-thirds in a shipment of furs made in March,
1795, on board the brig Jane, bound to Philadelphia,
and amounting to $ 3,593.37, as appears from a
copy book or register, marked A, No. 40, written by
Guilhempan, and signed by the said Claude Francois
Girod, which book or register has been produced
by the said Jean Francois Girod, who further
declared, that the said Claude Francois Girod was
at that time authorized to settle the accounts of
Nicolas Girod with this deponent, and that the said
C. F. Girod has never rendered to Nicolas Girod an
account of this transaction. . . . . . . . . . . . . . . . 2,395.63
For so much paid by Jean Francois Girod to said Claude
Francois Girod, for Nicolas' interest, say two
thirds in another shipment of furs made in April,
1795, on board the brig L'Archedimoi, bound to
Philadelphia, as appears from the aforementioned
copy book or register, marked A, No. 40. . . . . . . . . . 432.75
For the amount of a barrel of wine, with which the
private account of said C. F. Girod was debited on
17 October, 1795, but never since credited
with, as appears from the aforementioned copy book
or register . . . . . . . . . . . . . . . . . . . . . . . 50.00
Amount of a bill of exchange drawn by Claude Francois
Girod, on the 7 April, 1796, payable eight
days after sight, at New York, to his brother,
Nicolas Girod, for $ 2,000, which he had received
from Jean Francois Girod, for $2,000, which he had
received from Jean Francois Girod; said bill has
never been accepted or paid, as appears from the
bill itself, which has been exhibited to us by said
Nicolas Girod. . . . . . . . . . . . . . . . . . . . . . . 2,000.00
For the half of the amount of twenty-six barrels of
gunpowder, shipped in the month of April, 1796, on
board the ship The Two Friends, bound to New
York, and consigned to Th. Thebane, by Jean Francois
Girod, on joint account with Nicolas Girod. The
proceeds whereof, amounting to $ 1,193.75, as
appears from the copy book aforesaid, were received,
as also the profits of said Th. Thebane by the said
Claude Francois Girod, who never accounted for them
to the parties interested. This being established
by the declaration of said Jn. F. Girod. . . . . . . . . . $ 596.87
Amount of sundry merchandises belonging to Nicolas
Girod, and by Jean Francois Girod entrusted to
Claude Francois Girod, as appears from the
copy book aforesaid, which was exhibited to us by
said Jean Francois Girod, who declared that Claude
Francois Girod had never accounted for the
merchandise to said Nicolas Girod . . . . . . . . . . . . 210.06
Amount of sundry debts which Claude Francois Girod
had undertaken to collect for account of Nicolas
Girod, as appears from the statement produced by
Jean Francois Girod, and corroborated by the
aforesaid copy book or register A. . . . . . . . . . . . . 476.87
Amount of a barrel of wine, sold to Mr. de Vangine,
by the said Jn. Francois Girod, which was paid to
said Claude Francois Girod, as is proven by a
written declaration of said Jn. F. Girod in said
copy book or register. . . . . . . . . . . . . . . . . . . 60.00
The 4th item, amounting in capital to $ 186, is
established by the declaration of Jean Francois
Girod, who affirms that it is within his knowledge
that the articles composing said item were delivered
to Claude Francois Girod, who shipped them for
Havana on his private account. . . . . . . . . . . . . . . 186.00
The 5th item, amounting in capital to $ 651.50,
consists of the net proceeds of the sale made by
Claude Frs. Girod of 2 bales of blue drilling,
shipped for New York in 1801, on board of the ship
South Carolina, Stick, master, by Thibaut, for
account of Nicolas Girod, and consigned to Claude
F'ois Girod, as appears from book No. 1, which was
exhibited to the arbitrators, who ascertained that
it was in the handwriting of Guilhempan, then the
clerk and agent of C. F. Girod . . . . . . . . . . . . . . 651.50
The 6th item, amounting in capital to $ 299.06,
consists likewise of the net proceeds of the sale
of a cask of manna, shipped by Nicolas Girod when in
New York, in 1797, on board of schooner Dispatch,
Clark, master, to the consignment of said Claude
Francois Girod, as the whole was made to appear
by copy book No. 1, mentioned in the foregoing
article . . . . . . . . . . . . . . . . . . . . . . . . . $ 229.06
The 7th item, amounting in capital to $ 379.12,
consists of a lot of merchandise, consigned by
Jean Francois Girod to Claude Francois Girod, at
the time of said J'n F. Girod's departure for the
United States in 1797, which said merchandises
belonged to said Nicolas Girod, and were sold by
said Claude Francois Girod, as appears from a waste
or copy book, in the handwriting of said Guilhempan,
marked B, No. 42, and produced by said Jean Francois
Girod . . . . . . . . . . . . . . . . . . . . . . . . . . 379.12
The 8th item, amounting in capital to $ 813.82,
consists of the proceeds of the sale made by Claude
Frs. of divers merchandises belonging to Nicolas
Girod, which the latter had left in the hands of
Jean Francois Girod, who delivered them in kind to
Claude Francois Girod at the time of said J. F.
Girod's departure for the United States, in 1797;
said merchandises are enumerated in a copy or
waste book in the handwriting of the late
Guilhempan, marked B, No. 41, and likewise produced
by the parties interested . . . . . . . . . . . . . . . . 813.82
The 9th item, amounting in capital to $ 899, consists
of the net proceeds of twelve barrels of wine
shipped by Nicolas Girod when in New York, 1797,
on board the brig Success, Dinsmore, master, to the
consignment of Claude Francois Girod, who sold the
same, as was shown by the sales book No. 1,
aforesaid . . . . . . . . . . . . . . . . . . . . . . . . 899.00
The 10th item, amounting in capital to $489.63, consists
also of the net proceeds of sale made by Claude
F'ois Girod, of 498 sextains of cards shipped by
N'as Girod when in New York, in 1797, on board of
the brig Success, Rathbone, master, to the
consignment of said Claude F'ois Girod, as was shown
by the sales book No. 1, aforesaid. . . . . . . . . . . . 489.63
The 11th item, amounting in capital to $ 991.38,
consists also of the net proceeds of the sale made
by C. F. Girod of 762 sextains of cards, shipped in
1795 by Nicolas Girod, then in New York, for his
account and risks, on board the schooner active,
Wilcox, master, and consigned to said Claude Frs.
Girod, as appears from the sales book No. 1,
aforesaid . . . . . . . . . . . . . . . . . . . . . . . . 991.38
The 12th item, amounting in capital to the sum of
$13,901.94, consists of divers lots of merchandises
and jewelry belonging to N. Girod, which the said
Claude Francois Girod sent into the provinces of
the interior, and there sold, or caused to be sold.
The accounts of those sales were never settled
between Claude Francois and Nicolas Girod, which
fact is attested by the declaration of Jean Francois
Girod, and several other witnesses, who testify that
Claude Frs. Girod has constantly avoided to render
said account. The several articles composing the
present item are enumerated and detailed in the
aforementioned sales book No. 1, which the arbitrators
have ascertained to be in the handwriting of
Guilhempan. . . . . . . . . . . . . . . . . . . . . . . . $13,901.94
The 13th item, amounting in capital to $6,574.30,
consists of the balance of an account between Nicolas
and Claude F. Girod, adjusted on 1 August,
1813, by Mr. Phillippon, Jr., who was authorized
for that purpose by the said Claude F. Girod.
The arbitrators, after examining that account and
the one preceding it, are satisfied that the articles
mentioned in said accounts are foreign to the affairs
which existed between the said Nicolas and Claude
Frs. Girod. . . . . . . . . . . . . . . . . . . . . . . . 6,574.30
----------
$34,439.93
Secondly. The arbitrators have examined and verified
the account of interests also making part of the
claims of said Nicolas Girod, as follows, viz.:
Interests on $1,602, amount of the first item of the
account produced by Nicolas Girod, from November,
1794, to the date hereof, making, in all, 20 years,
at 6 percent per annum. . . . . . . . . . . . . . . . . . $1,922.40
Interests on $1,500, amount of the 2d item, from the
year 1794 to the date hereof, that is, 20 years, at
6 percent per annum . . . . . . . . . . . . . . . . . . . 1,800.00
Ditto, on $6,222.18, amount of the 3d item; the arbitrators
have examined the eight parts whereof this item is
composed, and found that the interests calculated on
each part amounted to $7,087.92, wherefore they have
been of opinion to leave the item as it was presented . . 6,657.61
Ditto, on the $186, amount of the 4th item, from January,
1797, to this day, making 17 years, 10 months, at 6
percent per annum . . . . . . . . . . . . . . . . . . . . 199.02
Ditto, on $651.50, amount of the 5th item. The arbitrators
have reduced the amount claimed, to-wit,
$664.02, to $504.91, because the interests ought to have
been calculated only from the 1st of January, 1802, when
the 2 bales of drilling shipped by Thibaut, were sold --
this gives 12 years and 11 months, at 6 percent per
annum . . . . . . . . . . . . . . . . . . . . . . . . . . 504.91
Ditto, on $229.06, amount of the 6th item. The arbitrators
have verified the calculation, which they have found
correct . . . . . . . . . . . . . . . . . . . . . . . . . 233.58
Ditto, on $379.12, amount of the 7th item. The calculation
was verified, and found correct . . . . . . . . . . . . . 382.78
Ditto, on $813.82, amount of the 8th item. The calculation
was verified, and found correct . . . . . . . . . . . . . 817.90
Ditto, on $899, amount of the 9th item. The calculation
was examined, and found correct . . . . . . . . . . . . . 876.52
Ditto, on $489.63, amount of the 10th item; after
examination, found correct. . . . . . . . . . . . . . . . 477.75
Interests on $991.38, amount of the 11th item, examined,
and found correct . . . . . . . . . . . . . . . . . . . . 996.22
Ditto, on $13,901.94, amount of the 12th item; examined,
and found correct . . . . . . . . . . . . . . . . . . . . 12,998.30
Ditto, on $6,574.30, amount of the 13th and last item of
the account presented by Nicolas Girod. The arbitrators,
after examining the calculation, found that it fell
short of what it ought to have been, but as the
difference is trifling, and in favor of the heirs, they
left the item as it was presented . . . . . . . . . . . . 493.06
----------
Capital and interests due, after examination. . . . . . . . $62,769.98
The arbitrators next proceeded to verify and examine the
sums with which the said Nicolas Girod has credited the
account he has produced, which sums amount, in capital
and interests, to $22,351.89, and were found correct. . . 22,351.89
---------bas:
Balance in favor of Nicolas Girod . . . . . . . . . . . . . $40,418.09
So that the balance in favor of Nicolas Girod is reduced to $40,418.09 instead of $40,579.20, as claimed in his account, this difference being produced by the reduction made on the interests of the 5th item of said account. The arbitrators, after having examined and heard the declarations of Messrs. Pre. Bousignes, M. Pacaud, Joseph Guillot, and Jean Francois Girod, witnesses introduced by the parties, and sworn by John S. Lapauze, a justice of the peace, who positively assert that Claude Francois Girod has always refused to settle his accounts with his brother, Nicolas Girod, and after a scrupulous examination of the books, accounts, titles, and other documents which were produced in this
affair, are of opinion that the sum of forty thousand four hundred and eighteen dollars and nine cents, claimed by said Nicolas Girod, is lawfully due to him. In faith whereof, we have signed the present award, that it may have its legal effect given to it.
"New Orleans, this fourteenth day of the month of December, eighteen hundred and fourteen."
"[Signed] F. MEFFRE ROUZAN"
"F. PERCY, JUN'R"
"On this, the twelfth day of the month of December, 1814, in the thirty-ninth year of the independence of the United States of America, before me, one of the justices of the peace for the City and Parish of New Orleans, personally appeared, as requested by the parties, Mr. Joseph Guillot, a witness in the case of Nicolas Girod v. Jean Francois Girod, one of the testamentary executors of the late Claude Francois Girod, and Charles Robert Caune, attorney for the absent heirs, who, being duly sworn according to law, declared and said that he has always been a friend of the Girods, and that some time in the month of July, 1813, the late Claude Francois Girod, being in town, came to deponent's house, and requested him to call upon him in his room, saying that he had something to confide to him, and that having repaired thither, said Claude Francois Girod communicated his intentions of preventing all difficulties after his death, saying that he was desirous to settle with his brother Nicolas, that he had been to church, where he had knelt before the Holy Virgin, beseeching her to assist him in terminating his affairs with his said brother Nicolas; deponent, knowing nearly all their affairs, asked him in what manner he intended to settle them; then the said Claude Francois Girod told him -- here are my propositions; I will sell my house in St. Louis Street for cash to my said brother Nicolas, with a view to settle with him, reserving, for the term of my natural life, the use of one of the back rooms of said house; and if there be any balance remaining due to him, he will grant me a delay to pay the same, and he requested deponent to submit those propositions to Nicolas Girod's consideration, which deponent did; but the said Nicolas Girod answered him surely, No; and added that he requested deponent not to interfere in that affair, saying that he himself had made proposals to Claude Francois Girod, his brother."
"Deponent further says, that he knows well that said affairs between Nicolas and Claude Francois Girod were never settled; and he has signed with us."
"[Signed] JN. FRS. GIROD, Test'y Executor"
"JOSH. GUILLOT"
"N. GIROD"
"R. CAUNE, Attorney for absent heirs"
"Sworn to and subscribed before me, at New Orleans, this 12 December, 1814."
"[Signed] JH.L. LAPANGE, Justice of the Peace"
"Order, 15 December, 1814"
"NICHOLAS GIROD"
"v. 604"
"JEAN FRANCOIS GIROD, Ex. of C.F."
"Girod, and C. R. CAUNE, Att'y &c."
"Upon motion of Alfred Hennen, Esq., counsel for the plaintiff, and upon reading and filing the report of the arbitrators appointed in this case, it is ordered, that the defendants do show cause on Saturday next, the 17th instant, if any they have or can, why the said report should not be homologated, and made the judgment of this Court in the premises."
"Sheriff's Return on Copy of the above Order"
"Served copy of the within order on each of the defendants, December 15, 1814."
"[Signed] J. H. HOLLAND, Deputy Sheriff"
"Order and Judgment"
"It is ordered, that the report of the arbitrators be homologated, and made the judgment of the court in this case, and that the said defendants do pay to plaintiff, in conformity to the said award, the sum of forty thousand four hundred and eighteen dollars and nine cents, with costs of suit to be taxed."
"New Orleans, May 6, 1815"
"[Signed] J. PITOT, Judge"
"I do hereby certify this to be a true copy of all the records, documents, and proceedings had in this case. Clerk's office of the Parish Court, New Orleans, January 10, 1844."
"[Signed] ALFRED BODIN, Deputy Clerk"
In the preceding March, Jean Francois Girod had brought in an account against the succession, and passed it through a similar process, which resulted in a judgment in his favor for the sum of $8,253.20.
The bill of the complainants in the court below then charged, that nearly all the co-heirs, having full faith and confidence in the honesty and integrity of Nicholas and Jean Francois Girod, did entrust them with their powers of attorney, authorizing them to represent the interests of such co-heirs in the settlement of the succession, in virtue of which the executors approved the account rendered by themselves. And that afterwards, by concealment of facts which they knew to exist, and were bound, as agents, to communicate, the
said executors obtained from some of them an acquittance or transfer of all claims against the succession.
The bill then recited that Nicholas Girod had died, in possession of all the real estate of Claude Francois Girod except some parts which were mentioned as having been sold, all of which property thus remaining with Nicholas Girod the complainants claimed as the original co-heirs of Claude Francois Girod, and also an account of the rents and profits. All claim against the other executor, Jean Francois Girod, was released.
Amongst the matters introduced in evidence was the following letter, which is inserted because it is referred to in the opinion of the court, and was sent by Girod at the same time that he obtained from his two sisters the receipts which are mentioned in another part of this statement.
"New Orleans, 27 May, 1817"
"My sister Quetend: Tomorrow our brother Jean Francois embarks for Havre; from thence he will proceed home, for the purpose of delivering to each one of you what is coming to him from the succession of our late brother, Claude Francois. I assure you, that if I had not been anxious to protect the honor of this brother, everything would have been absorbed in settlement of accounts with me, and by other debts; besides, whether you have it now or later, the greater part cannot escape you; this is to be understood of those who shall not cease to merit our friendship and esteem. Beware not to imitate the example of Jacques, who has forever lost our regard by his iniquities toward our whole family. Hereafter, when I shall have, in some measure, recovered from my losses by different bankrupts, I will send you some assistance from time to time. At present J. F. has orders to regulate his conduct towards you all by your conduct towards him. Farewell."
"I cordially embrace you all."
"Your brother and friend,"
"[Signed] N. GIROD"
"I have not time to write to you more at length, having much to attend to before the departure of my brother."
The original is endorsed:
"Recorded in consular book G, page 94."
"Paris, 22 January, 1844."
"[Signed] LORENZO DRAPEZ [SEAL]"
"Consul United States"
Proved and admitted in evidence, April 29, 1844.
On 19 January, 1830, Jean Francois Girod executed to his brother and co-executor, Nicholas, the following deed.
"On this nineteenth day of the month of January of the year
eighteen hundred and thirty, and of the independence of the United States of America the fifty-fourth, before me, Louis T. Caire, a notary public in and for the Parish and City of New Orleans, duly commissioned and sworn, and in the presence of the witnesses hereinafter named and undersigned, personally appeared Mr. Jean Francois Girod, Jr., residing at Paris, in the Kingdom of France, and now in this city, herein acting for himself and in his own right, of the one part, and Mr. Nicolas Girod, his brother, residing in this city, and herein acting for himself, and in his own right, of the other part, who declared that they own, in common, for a moiety each, several landed properties, and, among others, a sugar plantation, situated on Bayou Lafourche, Parish of Assumption, in this state, which they have for several years cultivated as partners, the said Nicolas Girod having the exclusive administration of the same, and being clothed with the necessary powers to that effect; but that from the date hereof the partnership between them is amicably dissolved, by consent of both parties."
"And the said Jean Francois Girod moreover declared that he sells, abandons, transfers, and sets over, without any other warranty than that arising of his personal acts and deeds, but with substitution and subrogation to all the warranties which have been given to them by their original vendors, unto the said Nicolas Girod, his brother, here present, and accepting purchaser, for himself, his heirs and assigns:"
"1. The undivided moiety of a sugar plantation, seven leagues distant from the River Mississippi, situate on Bayou Lafourche, in the Parish of Assumption, as it now is, or may be, together with the undivided moiety of the improvements, slaves, animals, ameliorations, implements of husbandry, and all other objects or things whatever appertaining thereto."
"2. The undivided moiety of all the lands belonging to them in common, and situated on Bayou Lafourche."
"3. The undivided moiety of three islands lying at the mouth of said Bayou, and known as Timballier, Bross, and Caillon islands."
"The whole of which had been acquired, on joint account, by the said appearers, by purchase from the late Joseph St. Felix, as per act executed before F. Courvaisier, judge of the aforesaid Parish of Assumption, on the eighteenth of February, eighteen hundred and fourteen, the said St. Felix had purchased the same at the judicial sale of the property belonging to the succession of the late Claude Francois Girod, who in his lifetime had acquired the same by purchase from divers persons; the said purchaser acknowledging that he is fully satisfied with the said titles, and declaring that he is well acquainted with the said plantation, lands, animals, slaves, and improvements, which are the subject matter of this act, and requires nothing further."
"But it is well understood and agreed upon, by and between the
parties hereto, that the sugar and molasses now on said plantation and in the sugar house are not included in this sale, and that the net produce thereof shall be equally divided between the parties."
"And the said Jean Francois Girod moreover declared, that he also transfers and abandons, unto the said Nicolas Girod, his brother, all and singular the debts due to said plantation, as also all such sum or sums as now are, or may hereafter be, due to said partnership or community, under what title, and for what reason or reasons soever, hereby giving unto his said brother full power and authority to sue for and enforce the payment thereof, but without recourse against the transferor."
"The present sale and transfer of debts are made and accepted by the contracting parties for and in consideration of the price and sum of seventeen thousand dollars, in payment whereof the said purchaser, Nicolas Girod, has presently subscribed to the order of the said Jean Francois Girod, his brother, three promissory notes, each for a like sum of twenty-three thousand three hundred and thirty-three dollars thirty-three and one-third cents, the first payable on the first of March, eighteen hundred and thirty-one, the second on the first of March, eighteen hundred and thirty-two, and the third on the first of March, eighteen hundred and thirty-three, with power and faculty, however, to postpone the payment of said notes, or of parts thereof, from year to year, by paying to the said Jean Francois Girod, or to the holder of the notes the payment whereof shall have been postponed, a yearly interest, at the rate of eight percentum per annum, until final payment; which said notes, after being marked ne varietur by the notary undersigned, to identify them herewith, were handed over to the said Girod, who acknowledges the receipt thereof, and gives full and ample acquittance for the same."
"By means of the foregoing, but provided the aforesaid notes be paid, the said Jean Francois Girod transfers and abandons unto the said Nicolas Girod all the rights of ownership whatever which he had, has, or may have, in and to the plantation, lands, slaves, animals, implements of husbandry, in a word, in and to all the property which they owned in common, wishing that the said Nicolas Girod be seized of the same, and may enjoy, use, and dispose thereof, as of things to him well and lawfully belonging, from this day and forever."
"And the said appearers have furthermore declared, that by act before G. R. Stringer, a notary in this city, bearing date the fifteenth of May, eighteen hundred and twenty-nine, Mr. Nicolas Girod, acting for himself, and in the name and with the consent of his brother, sold to Messrs. Abner Robinson and Benjamin Ballard a tract of land situated in the Parish of Assumption, and belonging to the community aforesaid, for the price of fifteen thousand dollars, five thousand whereof were paid cash, and converted to
the use of said sugar plantation and other property; that the ten thousand dollars payable at one, two, and three years from the date of the act aforesaid belong to them for a moiety each, but that the said Jean Francois Girod assigns to Nicolas Girod his share of five thousand dollars in said debt, on condition that the latter shall credit his running account with a sum of twenty-five hundred dollars, as for money had and received, and without recourse to the assignor, who moreover transfers to said Nicolas Girod, without exception or reservation any, all the rights, actions, privileges, and mortgages accessory to the aforesaid debt of five thousand dollars, being the transferor's share in the price of the sale aforesaid."
"And the notary undersigned having made known to the parties hereto article 3,328 of the new Civil Code of Louisiana, which reads as follows:"
" Every notary who shall pass an act of sale, mortgage, or donation, of an immovable or slave, shall be bound to obtain from the office of mortgages of the place where the immovable is situated, or where the seller, debtor, or donor has his domicile, if it be of a slave, a certificate declaring the privileges or mortgages, which may be inscribed on the object of the contract, and to mention them in his act, under penalty of damages towards the party who may suffer by his neglect in that respect,"
"they, the said parties, declared, that, as tenants in common, they are fully aware of the state of things in relation to the immovables and slaves, object of this sale, and that they do hereby, jointly and separately, relieve and free the notary undersigned from all liability on that subject."
"Done and passed in my office, at New Orleans, the day, month, and year first above written, in the presence of Messrs. Charles Darcantel and Jose Antonio Bermudez, witnesses hereto required, and domiciled in this city, who have signed with the said appearers and me, notary, after reading hereof."
"[Signed] JN. FS. GIROD"
"N. GIROD"
"CHARLES DARCANTEL"
"J. ANTONIO BERMUDEZ"
"LOUIS T. CAIRE, Notary Public"
About the 1st of September, 1840, Nicholas Girod died, in New Orleans, leaving the following will:
"Will of Nicolas Girod -- Filed 30th January, 1841"
"Ne varietur. New Orleans, 30 January, 1841."
"[Signed] J. BERMUDEZ, Judge"
A due bill to the Mayor of New Orleans, for the
sum of $100,000.00, to be employed in the
construction of a building called by the name of
"N. Girod," in the Parish of Orleans, to receive
and come to the relief of the French orphans
inhabiting the State of Louisiana . . . . . . . . . $100,000.00
A due bill to the treasurer of the Charity Hospital . 30,000.00
A due bill to the president of the Catholic Asylum. . 30,000.00
No. 4. A due bill to Mrs. Bouvard, born Poidebard,
of Bordeaux . . . . . . . . . . . . . . 100,000.00
5. Do. Mr. Vollier Poidebard, at Chamberry. . . 30,000.00
6. Do. Mr. Joseph Girod . . . . . . . . . . . . 100,000.00
7. Do. Mr. G. Montamat. . . . . . . . . . . . . 50,000.00
8. Do. Mr. A. Michoud . . . . . . . . . . . . . 50,000.00
9. Do. Mr. F. Grima . . . . . . . . . . . . . . 30,000.00
10. Do. Mr. Dejan Sr. . . . . . . . . . . . . . 20,000.00
11. Do. Mr. D. Prieur. . . . . . . . . . . . . . 40,000.00
12. Do. Mr. Chs. Claiborne . . . . . . . . . . . 15,000.00
13. Do. Mr. M'ville Marigny. . . . . . . . . . . 15,000.00
14. Do. Mrs. Widow Sabatier. . . . . . . . . . . 20,000.00
15. Do. Mr. A. Fournier. . . . . . . . . . . . . 20,000.00
16. Do. Mr. E. Rivolet . . . . . . . . . . . . . 20,000.00
17. Do. Mr. E. Mazureau. . . . . . . . . . . . . 20,000.00
18. Do. Mr. C. Gurlie. . . . . . . . . . . . . . 20,000.00
-----------
$710,000.00
"I certify that the eighteen due bills, above mentioned, are, and constitute, my sole and last will."
"New Orleans, 23 December, 1837."
"[Signed] N. GIROD"
The following is a specimen of one of these due bills:
"Good for the sum of fifty thousand dollars, payable to Mr. A. Michoud, at the settlement of my estate."
"$50,000. No. 8. [Signed] N. GIROD"
All these legatees were made defendants to the bill.
In the course of the suit an injunction was issued against Antoine Michoud, the executor of Nicholas Girod, to prevent him from making any payment or distribution of the funds received or to be received.
The defendants all answered, the principal answer being that of the legatees. They denied that Claude Francois Girod enumerated in his will and codicil all the debts due by him, but averred that he owed other and much larger debts; insisted that the authorization granted to the executors by the will, for the sale of the property, was legal; that no law of Louisiana, then existing, contained a provision by which a judge ex officio auctioneer was rendered incompetent, any more than any other auctioneer in the state, to sell any property whatsoever, situated within or without the limits of his jurisdiction; averred that, as no complaint was
made of the price of the property so sold by the judge, the circumstance that a portion of the property was beyond his jurisdiction was of no consequence, and the price thereof must be regarded as fair, and the sale as having been duly made; admitted the sales of property to St. Felix and Laignel, but denied that any retrocession of the property to the executors ever took place, inasmuch as no retrocession could take place between the parties unless the executors had been previously the sole and exclusive owners of the property; denied that any fraud or breach of trust was committed by the executors.
The respondents in their answer also admitted that the executors had placed themselves as creditors in their account of the succession, but averred that they had a right lawfully and justly to do so; that Nicholas Girod was creditor by virtue of a final judgment of a competent tribunal -- namely the Parish Court of the Parish and City of New Orleans -- rendered on 6 May, 1816; they further aver that this judgment has, for upwards of twenty-six years past, acquired the force of res adjudicata, and cannot be disturbed; that the account presented by the executors was duly homologated by the Court of Probates, and that judgment of homologation has also acquired the force of res adjudicata. The respondents also deny that the executors, in placing themselves as creditors of the succession in their account and in ratifying that account under the power of attorney entrusted to them by their co-heirs, abused the trust and betrayed the interest confided to them for their own advantage, and to the wrong and injury of their constituents.
The respondents further denied that Nicholas Girod, by means of false and fraudulent representations or concealment, had induced the complainants to sign acquittances; averred that they were signed freely, after being well informed of all the circumstances; that Hyppolite Pargoud, the son of Madame Pargoud, had been in New Orleans &c.
The respondents inserted in their answer a number of family letters, from which they inferred that Nicholas Girod was a charitable man and had constantly been the supporter of his distant relations, and concluded by pleading prescription.
To these answers there was a general replication.
In the progress of the suit the following admissions were filed by the respective parties:
"Admissions of Plaintiffs"
"PARGOUD v. MICHOUD"
"1. Jean Francois Girod, Sr., died, leaving a will in favor of Jean Francois Girod, Jr., of Paris, and the share of the complainants, M'mes Pargoud and Adam, in the estate of Claude Francois Girod remained as it previously was, to-wit, one eighth. "
"2. The complainants will contest no portions of the account rendered by the testamentary executors of C. F. Girod to the Court of Probates in 1817, except the individual claims of the said two executors, and the judgments obtained on them."
"3. The heirs of Claude Francois Girod, with the exception of Nicolas Girod and Jean Francois Girod, Jr., resided in Europe."
"4. All the legatees of Claude Francois Girod resided in Europe, except the Parish Church of Assumption, Francois Wiltz, Francoise, the daughter of Rosette Celan, the wife of Mellion, and Pauline and Dominick, who resided in Louisiana."
"5. The lots of which Nicolas Girod has made a donation to the Poydras Asylum were worth, at the time of said donation, $35,000 or thereabouts."
"6. Nicolas Girod always resided in Louisiana, and never went to Europe after his settlement in this city under the Spanish government."
"7. All the letters mentioned in the printed answer, from 27 to 38 inclusive, are admitted to be genuine, and the translations of parts thereof in said answer are admitted to be correct, but the complainants will require complete translations of them to be prepared, and they reserve the right of objecting to their admissibility on other grounds, if any they have."
"8. Hyppolite Pargoud was brought to Louisiana by his uncle, Jean Francois Girod, Jr., and has resided with him in Ouachita up to the year 1821, when said uncle went to Paris."
"9. The residence of M'me Adam, of M'me Quetand, and of Jacqueline Poidebard, the wife of Joseph Rivolet, was at Thones, in Savoy."
"10. The age of Jean Francois Girod, Jr., now residing at Paris, is seventy-two. He is unmarried. Has no other heirs at law except the complainants, and some relatives of the same degree, or their legal representatives. He is on good terms with the complainants, and he and Hyppolite Pargoud, the attorney in fact of the complainants, are intimate friends, and Antoine Michoud is his attorney in fact."
"11. The two acquittances of M'mes Pargoud and Adam, mentioned in the answer, and since deposited in court, are admitted to be genuine, and the said complainants were, in executing them, authorized and assisted by their husbands."
"12. Hippolyte Pargoud is a man of good business habits, attentive and intelligent. He visited his family in 1827 and 1835, but at each visit stayed but a very short time with them. In 1837, he obtained a power of attorney from his mother authorizing him to claim and recover her share in the estate of Claude Francois Girod. It was shown to Antoine Michoud, to be by him attested or legalized, as Sardinian consul, but it was not made use of. Hyppolite Pargoud demanded and obtained another, which was executed before
a notary public on 18 May, 1840. From the time he received the first power, he made no secret of his intention of bringing a suit against his uncle Nicolas, and after receiving the second power, when making the inventory at Lafourche, where he was present, he said that if there had been a will or testament made by his said uncle, he would have sued his succession in the name of his mother."
"13. The letters which have been heretofore deposited by the defendants in the hands of the clerk of the court are genuine, and all signed by the parties in whose names they are written. But the complainants reserve all other objections to their admissibility, and if they are admitted in evidence, they must be translated."
"14. The will of Nicolas Girod was not known when the said inventory was made at Lafourche; it was discovered to exist some time thereafter."
"15. By the laws of the Duchy of Savoy, Hyppolite Pargoud is a forced heir of his mother, Peronne Bernardine Pargoud, one of the complainants."
"16. Nicolas Girod was the eldest of the family. He was __ years old when he died."
"17. In November, 1833, Nicolas Girod made a present to Philippine Poidebard, his niece (widow Nicoud), of the sum of 3,240 francs, equal to $648, and in March, 1834, he made her another present of 22,000 francs, equal to $4,400, both which presents she received."
"[Signed] J. P. BENJAMIN, for complainants"
And on the 29th of April, 1844, the following admissions of defendants were filed.
"Admissions of Defendants"
"PARGOUD v. MICHOUD"
"1. Denise Philippine Poidebard, the widow of Pierre Nicoud, died in August, 1841, leaving three legitimate children, viz., Benoite Colline Nicoud, Maurice Emilie Nicoud, and Jeannie Benoite Nicoud, the last of whom is a minor; Jean Berger is her tutor. All these parties, as well as Louis Joseph Poidebard, never were in the United States."
"2. The allegations in the answer of Jean Firman Pepin, as syndic of Jean Francois Girod, Jr., concerning the transmission of the latter's interest in the subject matter of this suit, are correct, viz., that Pierre Nicolas Girod died at New Orleans, on 1 September, 1841, leaving a testament, by act, before Joseph Cuvillier, notary public, of 6 February, 1841, by which he bequeathed all his property to the said Jean Francois Girod, Jr., his brother; the said Jean Francois Girod, Jr., made a cession of property in the District Court of the First Judicial District, on 25 January, 1842; that thereby the interest of both Pierre
Nicolas and Jean Francois Girod, Jr., is vested in the creditors of the said Jean Francois Girod, Jr., and that said Jean Firman Pepin is the syndic of the said creditors."
"3. All the property described in the inventory of the estate of Nicolas Girod, as being situated in the second municipality, is derived from the estate of Claude Francois Girod. Nicolas Girod never improved this property, but leased it to John F. Miller, by two acts passed before L. T. Caire, notary public, on 9 May, 1829, and 30 April, 1831; each of these leases is for the space of twenty years and for an annual rent of $3,000."
"4. The age of Jean Baptiste Dejan, aine, is sixty-seven years, and that of Claude Gurlie seventy-two years. The former is a native of New Orleans, the latter has resided in New Orleans forty-eight years, and was intimate with Nicolas Girod as early as 1814."
"5. Nicolas Girod never cultivated or occupied any of the lands mentioned in the bill as situated on Bayou Lafourche except the plantation, but made levees "
"6. The Bouvard family resided in 1813 and has ever since been residing at or near Bordeaux, in France."
"7. The age of Etienne Rivolet, one of the legatees of N. Girod, is forty years. He is not related to the Girod family except by his brother, who married Jaqueline Poidebard, one of the nieces of Claude Francois Girod, the testator, and who is therefore his sister-in-law."
"[Signed] MAZUREAU, for defendants"
And on 29 of April, the following was offered in evidence and filed.
"UNITED STATES CIRCUIT COURT"
"WIDOW PARGOUD AND OTHERS"
"v. In chancery"
"ANTOINE MICHOUD AND OTHERS"
"Admissions and Agreements between the Parties"
"1. Admitted that one Joseph Gaubuan and one Corrino, witnesses on the part of the defendants, would, on being examined upon their oaths, declare that it was to the perfect previous knowledge, and with the consent and authorization of Jean Francois Girod, Jr., one of the testamentary executors of Claude Francois Girod, that Simon Laignel did bid and become the purchaser, at the public sale made by the register of wills, in the City of New Orleans, of the faubourg and city property belonging to said Claude Francois Girod, after his death, and further that it was also to the perfect knowledge, and with the consent and authorization, of said Jean Francois Girod that afterwards the said Simon Laignel sold the same property to Nicolas Girod, the co-testamentary executor of said Jean Francois. "
"2. All objections are waived which might have been made in consequence of the answers of the defendants, to whom interrogatories have been administered and propounded, being sworn to before Justice Jackson, and it is agreed that the said answers, so sworn to, shall have the same force and effect as if they had been sworn to before the proper officer."
"[Signed] L. JANIN"
"New Orleans, 29 April, 1844"
On 29 of July, 1844, the court made a decree of which the following is a copy.
"This cause came on to be heard this term, and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed as follows:"
"That the plaintiffs are the residuary legatees of Claude Francois Girod, deceased, in the following proportion, viz., Peronne Bernardine Girod, the widow of Jean Pierre Hector Pargoud, for one-eighth; Rosalie Girod, the widow of Louis Adam, for one-eighth; Francoise Peronne Quitand, the wife of J. A. Allard, for one forty-eighth; Marie Philippine Rose Quitand, for one forty-eighth; Marie Bernard Quitand, for one forty-eighth; Louis Joseph Poidebard, for one forty-eighth; Benoite Colline Nicoud, for two two-hundred-and-eighty-eighths; Maurice Emilie Nicoud, and Jenny Benoite Nicoud, represented by Jean Berger, their tutor, each for two two-hundred-and-eighty-eighths; Jean Francois Girod, the nephew, in his own right and as testamentary heir of Pierre Nicolas Girod, his brother, and represented by Jean Firman Pepin, the syndic of his creditors, for one-twentieth; and Francoise Clementine Girod, wife of Pierre Francois Pernond, for one-fortieth."
"That the adjudication of landed property, with the slaves thereto attached, situated on Bayou Lafourche, made on 18 February, 1814, to Charles St. Felix; the retrocession of said property by said Charles St. Felix to Nicolas and Jean Francois Girod on 23 February, 1814; the adjudication of the property situated in the Parish of Orleans, made to Simon Laignel on 9 April, 1814, and the notarial seal made to the same on 26 April, 1814, in pursuance of said adjudication, and the conveyance of said property to Nicolas Girod, of 28 April, 1814, be set aside and annulled, saving, however, the just rights of third persons, to whom two tracts of land on Bayou Lafourche, two slaves, and a piece of ground in the City of New Orleans were conveyed by the said Nicolas Girod in his lifetime, as appears from the admissions in the pleadings."
"That the dative testamentary executors of the late Nicolas Girod do execute to the plaintiffs, or to their legal representatives, good and valid notarial conveyances and assignments of such undivided portions of the aforesaid property as correspond to the proportions
in which they are residuary legatees of the late Claude Francois Girod as herein before declared, which conveyances and assignments are to be settled by Duncan N. Hennen, as master in chancery of this Court, in the event of a difference between the parties in relation thereto."
"And for greater certainty it is hereby declared that the property of which undivided portions are to be conveyed and assigned to the plaintiffs as aforesaid is all the property and slaves which were inventoried in the Parishes of Ascension, Assumption, and Lafourche Interior, after the death of said Nicolas Girod, as belonging to his estate, and all the property which was inventoried after the death of said Nicolas Girod, as situated in the Municipality No. 2 of the City of New Orleans, including the property which is an alluvion and accessory to the property derived from the estates of Claude Francois Girod, was abandoned to Nicolas Girod by the heirs of Bertrand Gravier by an act of compromise executed on 29 March, 1823, and also the house and lot situated at the corner of St. Louis and Chartres Streets in Municipality No. 1 of the City of New Orleans."
"That the account filed by Nicolas Girod and Jean Francois Girod in the Court of Probates of the Parish of Orleans in May, 1817, be opened and set aside; that the sum of $40,418.09 claimed by Nicolas Girod in said account, and the sum of $8,253.20 claimed by Jean Francois Girod for himself in said account, be disallowed and rejected; that the two judgments which were obtained in the Parish Court of the Parish of Orleans in the year 1815 for the aforesaid two sums of $40,418.09, and $8,253.20, be declared satisfied, and that no allowance be made to the defendants on account of said judgments."
"That the two acquittances and releases given in 1817 by the plaintiffs, Madame Adam and Madame Pargoud, to Jean Francois Girod, be set aside and be allowed no other force or effect than as acknowledgments of the receipt by Madame Pargoud for 5,242.75 francs and by Madame Adam for the sum of 10,242 francs 75 c., making respectively the sum of $975.15 and $1,905.15 in the currency of the United States, as stated in said receipt."
"And it is ordered that a reference be made to the said master in chancery to take an account of what is due from the estate of Nicolas Girod to the plaintiffs on account of the property belonging to the estate of Claude Francois Girod and alienated by said Nicolas Girod, for rents and profits, and for interest, and of what may be due by the complainants to the estate of Nicolas Girod for payments made by the said Nicolas on account of the debts of the said Claude Francois Girod, and of the legacies made by him, and of permanent improvements; and in taking said account, said master shall charge the said estate with the value of the crop
alleged to have been on hand when the property in Lafourche was adjudicated to Charles St. Felix, with interest thereon; with the amounts which, by the aforesaid account of 1817, the said executors acknowledged to have received, or for which they consented to become responsible, from the time the same were received; with the price at which the two tracts of land on Bayou Lafourche and the two slaves were sold, and which are mentioned in the pleadings as having heretofore been sold, with interest thereon, from the time when, according to the bill of sale, said price was payable; with the sum of thirty-five thousand dollars, this being the admitted value of the price of the ground donated by Nicolas Girod to the Female Orphan Asylum, with interest thereon from the time said donation was made; with the rents and profits of the plantation and slaves, the house at the corner of Chartres and St. Louis Streets and the property in Faubourg St. Mary, now called the Second Municipality, from the adjudication of 1814, and at the rate which might reasonably and with a proper administration have been obtained for the same, it being understood that from the years 1829 and 1830, when the property in Faubourg St. Mary or Second Municipality still undisposed of was leased to John F. Miller, the rents and profits thereon are to be charged at the rate at which the rent was stipulated in the lease to said Miller."
"And the said master shall credit the estate of Nicolas Girod in said account with the amount with which said executors credited themselves in their account of 1817, with interest thereon, except their aforesaid two personal claims of $40,418.09, and $8,253.20, with any payments that have been made on account of legacies left by the said Claude Francois Girod, with interest thereon, and also with one-half of the rents and profits of the plantation and slaves of Bayou Lafourche up to the time when Jean Francois Girod sold his interest in the same to Nicolas Girod, the plaintiffs having in their bill consented to abandon the half of these rents and profits supposed to have been received by the said Jean Francois Girod, and also with the actual cost in money to Nicolas Girod, but without interest, of the permanent improvements made by said Nicolas Girod, and still in existence, on the lot at the corner of St. Louis and Chartres Streets, and on the lands on Bayou Lafourche, deducting therefrom the value of the labor of the slaves of the said plantation, and of the materials procured from the same, and making also proper deductions for the diminution in value of said improvements by wear and tear, and all the interest to be charged in said account shall be so charged at the rate of five percent"
"And the said master shall compute what amount of the balance so to be found against the estate of Nicolas Girod shall be paid to each of the plaintiffs, according to their declared proportionate interest in the estate of Claude Francois Girod, and said balance shall be paid to them, with interest, from the date up to which the
master's report may present a calculation of interest unless, on application of the parties, the court shall otherwise direct, and said payment shall be made by the dative testamentary executors of Nicolas Girod, out of the funds of said estate, in preference to any legacies. And for the better discovery of matters aforesaid, the parties are to produce before the said master, upon oath, all books, papers, and writings in their custody or power relating thereto as the said master shall direct. And the said master shall, when necessary, examine said parties upon written interrogatories."
"And it is further ordered that the said dative testamentary executors pay out of the funds of said estate the costs of this suit which have hitherto accrued. And it is further ordered that either party, if so advised, be at liberty to apply to the court for a partition in kind or by sale of the above-mentioned real estate of Nicolas Girod. And all further directions are reserved until the master shall bring in his report."
"Decree signed July 30, 1844."
"[Signed] THEO. H. McCALEB [SEAL]"
"United States Judge"
From this decree the defendants appealed to this Court
