Where there was a sale of an undivided moiety of a tract of
land, and the purchaser undertook to extinguish certain liens upon
it, which he failed to do, and in consequence of such failure the
liens were enforced and had to be paid by the heirs of the original
owner, a suit by these heirs against the purchaser to recover
damages for the nonfulfillment of his contract to extinguish the
liens was not within the prohibition of the 11th section of the
Judiciary Act, 1 Stat. 78. The heirs, being aliens, had a right to
sue in the circuit court.
In a trial in Louisiana where the judge tried the whole case
without the intervention of a jury, a bill of exceptions to the
admission of testimony by the judge cannot be sustained in this
Court.
The extinguishment of the liens by the heirs of the original
owner was effected by process of law and attended with costs. It
was proper that these costs also, as well as
Page 54 U. S. 191
the amount of the liens, should be recovered by the heirs from
the defaulting party who had failed to fulfill his contract. The
article, 1929 of the Code of Louisiana, does not include this case,
but it is included within article 1924.
The plaintiff in error, and Alexander George, being joint owners
of certain real property, made a partition of it between them on 14
January, 1847, by a written act of partition, and the plaintiff in
error undertook and promised to pay certain promissory notes made
by Alexander George in favor of John McClain Durand, and which were
secured by mortgage on the property described in the act of
partition, among which were two notes, one for the sum of
$1,305.38, payable on 1 January, 1848, with interest at six percent
per annum from maturity, and one for the sum of $1,250.22, payable
on 1 January, 1849, with interest at six percent per annum from
maturity. When the note for $1,305.38 fell due, the plaintiff in
error paid $600 on account upon it, leaving the remainder unpaid,
and when the other note fell due he failed to pay it also. After
default was made in the payment of the last note, the holder of the
two notes instituted suit against the defendants in error, the
heirs and legal representatives of Alexander George, who was then
dead, and recovered the amount due on them,
viz.,
$1,955.60 and costs of protest, with interest at six percent per
annum on $705.38, from 4 January, 1848, and on the remainder from 4
January, 1849, by judgment, and issued an execution or
fi.
fa., under which certain slaves were seized in the parish of
St. Tammany and brought over to the City of New Orleans, where they
were sold on 13 June, 1849, and the sum of $2,435.88, out of the
proceeds of the sale, were applied to the payment of the debt and
of the costs made.
On 1 December, 1849, Ann George &c., the defendants in
error, filed their petition against Weems in the Circuit Court of
the United States for the Eastern District of Louisiana, claiming
to be reimbursed this sum of $2,435.88, with interest and costs.
Another claim was made for the value of a negro slave who died, but
as a remittitur was entered before final judgment, it is not
necessary to notice this further
The defendant put in two pleas to the jurisdiction: 1st that the
plaintiffs were not aliens, and 2d that they derived their right
from George, and as he and Weems were both citizens of Louisiana,
the plaintiffs were prohibited by the 11th section of the Judiciary
Act from bringing suit in the United States court. These pleas were
overruled.
After sundry other proceedings, the defendant filed the
following answer.
Page 54 U. S. 192
"Now comes the defendant in the above entitled suit and denies
all and singular the allegations in the plaintiffs' petition
contained; he denies specially that the plaintiffs are the heirs of
said Alexander George, or that they have or ever had any interest
in the succession of said Alexander George. He denies that
plaintiffs ever authorized the institution of this suit, and avers
that they have no interest in the pretended causes of action set
forth in said petition. He avers also that he is in no manner
liable to plaintiffs herein. Your respondent further says that if
at any time he has refused or failed to pay any of the notes
mentioned in said petition, it was because one Rickerman had
brought suit against the succession of said Alexander George,
claiming a lien and privilege upon said island for work, labor
&c., in constructing a levee thereon, which lien and privilege
neither said Durand nor the curator of said succession would
discharge, and your respondent is in no way liable for the
consequences of such refusal. Wherefore defendant prays to be hence
dismissed with his costs, and for general relief &c."
"CHAS. M. EMERSON"
"J. S. WHITTAKER"
"
Defendant's attorneys"
On 4 April, 1850, the cause came on for trial before the judge,
without a jury, when the following final judgment was given,
viz.:
"This cause this day came on to be heard, Halsey and Bonford,
Esqs., appearing for the plaintiffs, and Emerson, Esq., for
defendant. W hen, after argument of counsel, the court being
satisfied that the law and the evidence are in favor of the
plaintiffs, Ann George, doth order, adjudge, and decree, that the
said plaintiffs do have and recover judgment against the defendant
Alexander W. Weems for the sum of two thousand four hundred and
thirty-five dollars and eighty-eight cents, with interest on
nineteen hundred and fifty-five dollars and sixty cents of said
sum, from 13 June, 1849, at the rate of six percentum per annum,
until paid, and costs of suit to be taxed."
"Judgment rendered 4 April, 1850."
"Judgment signed 22 April, 1850."
"THEODORE H. McCALEB [SEAL]"
"
United States judge"
In the course of the trial, the following bill of exceptions was
taken.
"Be it remembered, that on the trial of this cause, the
plaintiffs offered in evidence a certificate marked D, of one N. B.
Harmer, clerk of the eighth Judicial District Court for the Parish
of St. Tammany for the purpose of proving that certain claims
against the succession of Alexander George were satisfied and
Page 54 U. S. 193
paid by the heirs of said George. To the introduction of this
document the defendant objected on the ground that it was not
competent nor within the official duties and acts of the clerk to
certify to the existence of facts from the inspection of and from
documents and papers on file in the suit, and that the facts and
the papers showing them should have been copied and the certificate
given as to the verity of the copy. The court overruled the
objection and admitted the evidence."
"Be it remembered also that on the trial of said cause, the
plaintiffs offered one J. M. Durand as a witness to prove that he
had brought suit against the defendant in this suit, the said
Alexander W. Weems, to recover the amount of the notes set forth in
this suit, and that said Weems had taken a suspensive appeal from
an order of seizure and sale to the Supreme Court of the State of
Louisiana. The defendant objected to these facts' being stated by
the witness on the ground that it was not competent to prove the
contents or any part of the contents of written documents or of
judicial records by parol without first proving the destruction of
the said documents or records. But the court overruled the
objection and permitted the witness to testify to the facts above
mentioned."
"THEODORE H. McCALEB,
United States Judge"
The defendants brought the case up to this Court by writ of
error.
Page 54 U. S. 195
MR. JUSTICE GRIER delivered the opinion of the Court.
The defendants in error brought this suit in the Circuit Court
of the United States for the Eastern District of Louisiana against
Weems, the plaintiff in error, by petition according to the
practice in the courts of that state. They aver in their petition
that they are aliens, and subjects of the Queen of Great Britain,
with the exception of two who were citizens of the State of
Illinois, and that they are the heirs of Alexander George,
deceased. That said George in his lifetime was owner of a certain
island the undivided moiety of which he had sold to Weems. That in
the act of partition between them Weems agreed to pay two certain
notes given by George for the purchase money, and which were
secured by mortgage on the land -- one for $1,305.82, payable on 1
January, 1848, and the other for $1,250.22 on 1 January, 1849. That
Weems paid the sum of $600 on the notes, but neglected or refused
to pay the balance. That Alexander George having died and the
defendants in error having been admitted to the succession as
Page 54 U. S. 196
his heirs, an execution was issued on the mortgage for the
balance of the notes, on which certain slaves held by them, as such
heirs, were seized and sold, and the sum of $2,435.88 raised in
satisfaction of the balance of said notes, with interest and costs
of suit.
The defendant below filed two pleas to the jurisdiction: 1st,
that the plaintiffs were not aliens as set forth in their bill, and
secondly that the claim of the plaintiffs is under Alexander
George, who was a citizen of Louisiana.
These pleas were overruled -- the first, it is to be presumed,
because it was not true in fact, and the second because it was not
good in law. For the plaintiffs' petition does not set forth a
claim as assignees of the negotiable paper or notes mentioned
therein, but for damage and loss incurred by them, from the neglect
and refusal of Weems to pay certain liens which he had contracted
to pay in the act of partition between himself and George.
As the argument submitted by the counsel for plaintiff in error
does not insist that there was error in overruling these pleas to
the jurisdiction, they need not be further noticed.
The case was afterwards heard on the merits before the court
without the intervention of a jury, and a paper, called a bill of
exceptions to the admission of certain testimony, is found on the
record, on which the plaintiff in error seems mainly to rely for
the reversal of judgment. It might be thought perhaps hypercritical
to object to the form of this paper, as it comes from a state where
common law forms are little known in practice; but it may be
remarked that this document certifies only that certain testimony
was offered and received by the court after objection by the
defendant's counsel, and does not state that any exception was
taken to such ruling of the court or that the judge who signed it
was asked to seal or did seal a bill of exceptions. But, waiving
this objection, the first exception is to receiving in evidence a
certain paper, marked D. That paper is not copied in or annexed to
the bill. It is said to be a certificate from the clerk of the
eighth Judicial District for the Parish of St. Tammany, offered to
prove that certain claims against the succession of Alexander
George were paid by his heirs. The objection to it was undoubtedly
a good and valid objection, if the contents of the paper were what
the objection assumes them to be. But as the paper itself is not
set forth in the bill, this Court cannot know whether the objection
was overruled because the paper was not what it was assumed to be,
or because the objection was not well taken, if it was.
The second exception was to the admission of parol testimony,
that a suit had been brought against the defendant
Page 54 U. S. 197
Weems. The objection that the contents of a record cannot be
proved by parol is certainly a good and legal one, if such were the
offer or such the evidence given by the witness.
But the bill does not state any of the preceding evidence in the
case, nor the purpose or bearing of the testimony offered. It may
have been merely offered to show demand of the payment of a note; a
fact
in pais which may be proved in parol, like any other
mode of demand, notwithstanding it was made by presenting a
writ.
But there remains an objection to these bills of exception which
is conclusive against them, even if they had been drawn in all
proper and legal form. It has been frequently decided by this Court
that notwithstanding there is no distinction between suits at law
and equity in the courts of Louisiana, in those of the United
States, this distinction must be preserved. When the case is
submitted to the judge, to find the facts without the intervention
of a jury, he acts as a referee, by consent of the parties, and no
bill of exceptions will lie to his reception or rejection of
testimony, nor to his judgment on the law. In such cases, when a
party feels aggrieved by the decision of the court, a case should
be made up, stating the facts as found by the court, in the nature
of a special verdict, and the judgment of the court thereon. If
testimony has been received after objection, or overruled, as
incompetent or irrelevant, it should be stated, so that this Court
may judge whether it was competent, relevant, or material, in a
just decision of the case.
See Craig v.
Missouri, 4 Pet. 427.
In
Field v. United
States, 9 Pet. 202, Marshall, C.J., in delivering
the opinion of the Court, says:
"As the case was not tried by a jury, the exception to the
admission of evidence was not properly the subject of a bill of
exceptions. But if the district court improperly admitted the
evidence, the only effect would be, that this Court would reject
that evidence, and proceed to decide the cause as if it were not on
the record. It would not, however, of itself, constitute any ground
for the reversal of the judgment."
And again, in
United States v.
King, 7 How. 853,
48 U. S. 854,
it is decided that "no exception can be taken where there is no
jury, and where the question of law is decided in delivering the
final decision of the court." And
"when the court decides the fact without the intervention of a
jury, the admission of illegal testimony, even if material, is not
of itself a ground for reversing the judgment, nor is it properly
the subject of a bill of exceptions."
It is alleged also that there is error on the face of this
record, because the court allowed the whole amount levied from the
property of the plaintiffs below, being the amount of the notes
Page 54 U. S. 198
and costs; because, by art. 1929 of the Code of Louisiana,
"The damages due for delay in the performance of an obligation
are called interest. The creditor is entitled to these damages
without proving any loss, and whatever loss he may have suffered he
can recover no more."
But we are of opinion that this objection is founded on a
mistake of the nature of the action, which is not brought on the
notes mentioned in the petition, but for damages suffered by the
plaintiffs below, on account of the nonperformance by the defendant
of his stipulations contained in his act of partition. This case
therefore comes within the art. 1924 of the code, which says:
"The obligations of contracts extending to whatsoever is
incident to such contracts, the party who violates them is liable,
as one of the incidents of his obligations, to the payment of the
damages which the other party has sustained by his default."
The judgment of the circuit court is
Affirmed with costs.
Order
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 ordered and adjudged by this Court that the
judgment of the said circuit court in this cause be and the same is
hereby affirmed with costs and damages at the rate of six percentum
per annum.
