WESTERN DIST. an appraiser; that the property did not sell for a sum sufficient August, 1834. to satisfy the mortgages existing on it. COONEY'S HEIRS v8. CLARK. Morris pleaded a general denial to the call in warranty; and in an amended answer avers, he assigned the judgment on which execution issued against said slaves to defendant, Clark, before the issuing thereof. The evidence shows, that the estate of John Cooney, deceased, was partitioned among his three children, in September, 1828; that lots Nos. 1 and 2 fell to the two minors and plaintiffs in this suit, in which were included the slaves Nelson and Lucy; that the mother, Rowena Cooney, was apppointed tutrix to said minors, in October, 1832, after a second marriage. It also appeared, that Mrs. Rowena Cooney had mortgaged these slaves with others, to secure a debt due by her, of five hundred and five dollars, in April, 1827. Morris obtained judgment against Mrs. R. Cooney, on an obligation signed by her for two hundred ninety-two dollars and twenty-eight cents, in 1827. The negroes were seized and sold under this judgment, the 16th September, 1829. The evidence further showed, that the estate of John Cooney, deceased, was partitioned among his heirs the 25th September, 1828, and that the two slaves in controversy were allotted to the two heirs, who now are the plaintiffs in the present suit. The jury returned a verdict for the plaintiffs, for one-third of the value of the two negroes claimed, and four dollars per month hire, from the 16th September, 1829; and that Mrs. R. Cooney, as warrantor, is bound to the defendant, Clark, for the purchase money; and find a verdict in favor of Morris, the other warrantor. Judgment was rendered accordingly; but a remittitur having been entered for two-thirds of the purchase money, so that judgment was only rendered against Mrs. R. Cooney, in favor of Clark, for one hundred and sixtysix dollars sixty-six cents and two-thirds, with interest and costs. The plaintiffs appealed. Turner, for the plaintiffs. 1. The defendant cannot attack the title of Cooney's heirs, WESTERN DIST to these slaves, or subject them to the payment of his claim August, 1834. against their mother. He should have brought an action of COONEY'S HEIRS nullity, to set aside the partition. 2. The title under which the plaintiffs claim the slaves, was sufficient in law to entitle them to a recovery against the defendant. 3. The possession of the slaves by the defendant, is tortious, and they must be surrendered to the legal owners. In such a case, the tortious possessor is bound for the full value of the hire of the slaves. 4. The defendant did not acquire any title to the slaves in contest, by the pretended seizure and sale of them to him, on which he relies. 5. The plaintiffs insist, that they are entitled to recover the slaves in contest, and their hire. The judgment of the District Court must be reversed, and judgment rendered in their favor. They rely on the following authorities. La. Code, 1219, 1428. 10 Martin, 256. 6 Martin, N. S. 324. 5 Ibid. 361. 7 Ibid. 381. 1 La. Reports, 282. 2 Ibid. 299. Ripley & Lawson, for defendants. Mathews, J., delivered the opinion of the court. This suit is brought to recover two slaves, named Nelson and Lucy, and described in the petition as the property of two of the children of the plaintiff, who represents them as natural tutrix. They claim as heirs to the succession of their deceased father. The defendant, in his answer, sets up title under a sheriff's deed, which appears to have been made in pursuance of a sale by execution, wherein the property was seized as belonging to the mother, to satisfy a judgment which had been obtained against her by one Morris, &c. The cause was submitted to a jury in the court below, whose verdict, although not clearly intelligible, appears to be the basis of the judgment of that court; from which the plaintiffs appealed. V8. CLARK. vs. CLARK. WESTERN DIST. The evidence of the case shows, that the slaves now in August, 1834. contest were, during his life-time, in the possession of the COONEY'S HEIRS father of the plaintiffs, and were at his death left amongst the property of his succession. It does not appear that an Where heirs inventory of his estate was ever regularly made, or that any slaves allotted to partition of the community of acquests and gains presumed them in the par- by law, was made at any time after the dissolution of the The entire property ancestor's estate, marriage by the death of the husband. the procès ver claim certain tition of their evidence, ants. to estate inherited, bal of partition which was left by the husband, seems to have remained in is admissible in an undivided state, in the possession of his widow and surshow title on the viving partner, until the 25th of September, 1828; when a part of the claimprovisional partition took place between the plaintiffs and A partition their sister, who is co-heir; the whole number of heirs of the among heirs of property really deceased father being three. In the division which was belonging to the made of the slaves, assumed to be the property of the succesalthough not ho- sion of John Cooney, the ancestor of the appellants, the two mologated in due time, which is slaves in question fell to their lot; one to each of them. The informal, and introduction of the procès verbal of partition, was excepted to only provisional, gives to each by the defendant; it was, however, admitted in evidence by heir a separate and good and the court below, and, we are of opinion, properly; but no valid title to the effect was allowed to it in the charge of the judge a quo; to property partaken by each, which an exception was taken by the counsel of the plaintiffs. until annulled or charged on the It appears to us, that a just decision of the case depends application of those interested mainly on the effect which ought to be given to this evidence in the property of title on the part of the appellants. It does not purport to be a partition of the whole estate of the deceased, being in appearance confined to certain slaves specified by name, and appraised by experts appointed by the judge of probates of the parish, where the succession was opened, the ancestor having died intestate. The principal objections to it are informalities in the proceedings, and want of homologation in due time. It is true that the proceedings do not appear to be clothed. with all the formalities, which probably are required by law to give absolute and conclusive effect to them as a final partition. It was made in judicial form, between co-heirs, some of whom were minors, represented by their mother and tutrix; and if the property really belonged to the estate of their father, the partition thus made gave to each heir a separate of the succes sion. CLARK. of acquests and seized and sold the partner after the of the marriage by title to the property by him partaken, good and valid until WESTERN DIST. annulled, or changed by application of those interested in the_August, 1834. property of the succession. See La. Code, arts. 1219 and 1438. COONEY'S HEIRS The principles on which the cause seems to have been decided in the court below, are exhibited in the charge of Property which belongs the judge to the jury. One among them is, that the pro- to the matrimoperty in dispute belonged to the matrimonial community of nial community acquests and gains, which existed between Mrs. Cooney and gains may be her husband, at the time of his death. The presumption of for the debts of law is as assumed in the charge, and if no proceeding had surviving taken place before the levy of the execution which issued dissolution against the property of the surviving partner, her undivided the death of one of them, so far interest presumed to exist, the slaves now sued for might as the interest or have been legally seized and sold. This presumption, we on are of opinion, is outweighed by the partition at which the vivor is concerpresumed part owner assisted, and thereby virtually acknow- proceedings are ledged the exclusive right to be in the succession of her had before the levy or seizure husband, to the slaves which were divided and partaken to make partias such. Whether these proceedings may be annulled by heirs. tion among the creditors of the widow, alleging fraud, is a question which we are not called on to determine, in the present suit. According to the pleadings and evidence before us, we are of opinion that the plaintiffs have made out their title, and that the defendant has shown none. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, and that the plaintiffs and appellants do recover from the defendant and appellee, the slaves Nelson and Lucy, named and described in their petition, and also the sum of one hundred dollars per year, as the value of the services of said slaves, from the institution of this suit until they shall be delivered up to the plaintiffs, &c. and it is further ordered, adjudged and decreed, that the defendant and appellee do recover from Rowena Cooney, called in warranty, the sum of five hundred. dollars, the price by him paid in consequence of the sale by the sheriff, with five per cent. interest thereon yearly until paid. All costs of this suit to be paid by the warrantor, &c. undivided half of the sur ned, when no WESTERN DIST. GAYLE'S HEIRS vs. WILLIAMS'S AD'R GAYLE'S HEIRS vs. WILLIAMS'S ADMINISTRATOR. APPEAL FROM THE COURT OF PROBATES, FOR THE PARISH OF EAST BATON ROUGE. The neglect or omission to record a judgment within ten days after its rendition, under the recording act of March 26, 1813, does not render it a nullity, so as to prevent its having the effect of a legal mortgage, from the date of its registry, when recorded after the lapse of ten days. Statutes in pari materia should be construed together, in order to ascertain the meaning of the legislator. Prior laws are not repealed by subsequent ones, unless by positive enactment, or clear repugnancy in their respective provisions. Robert Jones, the administrator of the succession of Doctor William Williams, filed his petition, with a tableau of distribution, of the effects of the succession administered, as an insolvent one: he alleges, that the heirs of said succession are minors, and reside out of the state, and prays that a curator ad hoc be appointed to represent them; that Eliza Williams, the widow of the deceased, and residing in the parish, be served with a copy of the petition and citation, and that ten days notice be given, to all whom it may concern, to show cause and make opposition; and in default thereof, that he be allowed to proceed to the payment of the widow and creditors, according to the tableau. The judge of Probates ordered the appointment of the curator ad hoc, and citations and notices, to issue and be served and published. The administrator set down the net amount of the estate, at two thousand four hundred and seventy-three dollars ninety cents, and allowed the widow in community, one-half thereof, in separate property. The other half, with two sums added, for moneys received on account of sales of husband's property, and a debt due him, amounted to three thousand two hundred and eighty-seven dollars seventy-five cents. The claims put down as previleged and secured by judicial mortgages are, first heirs of Ann Jones, deceased, for amount |