Where a party residing in Maryland sold land in Louisiana with a
general warranty to a resident of Louisiana, who was afterwards
evicted from a part of it and obtained a judgment against his
warrantor, whom he had vouched in,
Page 64 U. S. 133
this judgment could not be rendered effective against the
Maryland vendor, because no notice had been served upon him and the
appointment of a curator
ad hoc was not sufficient.
An action of assumpsit having been afterwards brought against
him in the Maryland court by the parties interested, the statute of
limitations of Maryland was considered to be applicable to the
case.
The eviction of the vendee took place when he held the land
under a title different from that which had been conveyed to him by
his grantor, without the necessity of the execution of a writ of
possession.
This was an action of assumpsit brought by Charles Flowers and
Alice Flowers, of Louisiana, claiming to be heirs and universal
legatees of Charles Mulhollan, against Foreman, surviving partner
of Keller & Foreman.
The claim arose in this way:
There was a tract of land in Louisiana which Calvit conveyed to
Davis, Davis to Keller & Foreman, and these last to Mulhollan,
under a power of attorney dated 21st December, 1827. The attorney
conveyed it to Mulhollan with a clause of general warranty.
Mulhollan, on the same day, conveyed a part of it to Reuben
Carnal, but nothing more need be said about this deed for the
purpose of explaining the questions which arose in this case.
The heirs of Calvit, in 1838, filed a petition in the District
Court, Parish of Rapides, State of Louisiana, alleging that they
were the sole heirs of their mother, who was the lawful wife of
Anthony Calvit; that during the community between said Anthony
Calvit and his wife, he purchased said tract of land; that the said
wife died, leaving the petitioners her heirs, and their father
their natural tutor; that in the year 1822, while petitioners were
minors, he sold the whole of said land to A. J. Davis, in violation
of the rights of petitioners, who were entitled to one-half thereof
as the heirs of their mother; that said land was then in possession
of said Charles Mulhollan and Reuben Carnal, and the petition prays
that one-half of said land may be adjudged to them.
Page 64 U. S. 134
Carnal filed his answer, denying the allegations in the
petition, alleging that he purchased said land from Charles
Mulhollan, who was bound to defend the title, and citing him in
warranty in the suit.
Mulhollan filed his answer, denying all the allegations of the
plaintiffs and alleging that he purchased said land from said
Keller & Foreman under a general warranty, and he prays that
said Keller & Foreman, as warrantors, may be cited to defend
him in his title and possession and that curators
ad hoc
may be appointed to represent the said warrantors, who are
absentees.
In conformity with the prayer contained in Mulhollan's answer, a
citation issued not to Keller & Foreman, but to George K.
Waters, who is styled curator
ad hoc of the Parish of
Rapides, and said Waters appeared and filed an answer, and
undertook to defend the cause for the absentees, on whom no process
was served and who had no notice nor knowledge of the case.
The district court gave judgment in favor of the defendant.
The case was appealed, and the Supreme Court of Louisiana, on
the 26th of November, 1845, reversed the decision of the district
court and ordered, adjudged, and decreed,
"that said James and Coleman Calvit do recover of the defendant,
each and respectively, one undivided eighth of the tract of land
described in their petition, that they be quieted in their title to
the said undivided eighth hereby decreed to them respectively as
against the defendant or any person claiming through or under
them,"
but with regard to the question of improvements and rents and
profits, so far as James and Coleman Calvit were interested, and as
to the question of damages between the warrantees, the case was
remanded to the district court. And on a rehearing, the supreme
court, on the 29th of October, 1845, decreed that its former
judgment be maintained as far as it went, and that, in addition to
the purposes for which it was ordered to be remanded, it be also
remanded for the further purpose of ascertaining whether the price
received by the plaintiffs' father and tutor for the property in
dispute was applied to the payment of the community debts
Page 64 U. S. 135
of the father and mother of the plaintiffs, to which said James
and Coleman were bound to contribute in proportion to their rights
thereto, and that in the meantime no writ of possession issue until
they have paid the amount which may be found to be due by them on
the trial of the cause in the lower court.
During the progress of the cause, Charles Mulhollan died, and
Charles Flowers and Alice Flowers appeared therein as his heirs and
universal legatees.
Charles Mulhollan died in 1846. Shortly afterwards, Thomas O.
Moore the acting executor, paid to James and Coleman Calvit twelve
hundred dollars each for their relinquishment of their claims to
the tract of land in question.
On the 31st of May, 1853, the district court rendered judgment
in favor of Charles Flowers and Alice Flowers against Keller &
Foreman, who were represented by the curator
ad hoc. The
judgment was for eight hundred and fifty dollars, with interest
thereon, at five percent, from the 14th of November, 1846, and
costs.
There being no mode of reaching Keller & Foreman under this
judgment, an action of assumpsit was brought against them, as
before stated, in the Circuit Court of the United States for the
District of Maryland. The defendants pleaded the statute of
limitations of Maryland.
The two statutes of this state are the following,
viz.:
The act of 1715, chapter 23, section 2, provides that all
actions upon the case shall be brought "within three years ensuing
the cause of such action, and not after," with a saving by section
22 in favor of persons beyond seas.
The act of 1818, chapter 216, section 1, repeals the saving in
the act of 1715 in favor of persons beyond seas.
The reader will perceive that the only question in the case was
when the statute began to run, whether in 1846 or 1853.
The circuit court granted the following instruction.
"The defendant prays the court to instruct the jury first that
the Act of the State of Maryland passed in the year 1715, chapter
23, entitled, 'An act for limitation of certain actions, for
avoiding suits at law,' and the Act of said state, passed in
Page 64 U. S. 136
the year 1816, chapter 216, entitled, 'An act to avoid suits at
law,' constitute a bar to the recovery by the plaintiff in this
case. To the granting of which instruction the plaintiff excepted,
and upon this exception the case came up to this Court. "
Page 64 U. S. 143
MR. JUSTICE WAYNE delivered the opinion of the Court.
We shall cite such facts in this record as are necessary to show
the relations and obligations of the parties to it under the laws
of the State of Louisiana, and in that of the Circuit Court of the
United States for the District of Maryland, from which it has been
brought here by writ of error.
The plaintiffs are the heirs and universal legatees of Charles
Mulhollan, to whom Keller & Foreman sold a tract of land, with
an obligation of warranty. On the same day that the conveyance was
executed to Mulhollan, he conveyed by deed a part of the land to
Reuben Carnal, with a like clause of general warranty.
Afterwards, William J. Calvit, Elizabeth G. Calvit, James A.
Calvit, and Coleman W. Calvit filed their petition in the District
Court for the Parish of Rapides, alleging that they were the heirs
of their mother, the lawful wife of their father, Anthony Calvit,
and that they were entitled to half of the land, as it had been
purchased by their father during their mother's coverture with him,
which superinduced between them a community of acquests or gains --
there having been by them no stipulation to the contrary. And they
allege also that their father, as their natural tutor, had sold the
land for a part of which they petitioned while they were minors, in
violation of their rights.
They further state that Charles Mulhollan and Reuben Carnal were
in possession of the land, and ask that one-half of it might be
adjudged to them, as the heirs of their mother.
Being thus brought into court, Mulhollan and Carnal filed
Page 64 U. S. 144
their answers. Each deny the allegations of the plaintiffs --
Carnal citing Mulhollan into court as his warrantor -- and
Mulhollan alleges in his answer, that he had purchased the land
from Keller & Foreman with a general warranty. He asks that
they might be cited to defend him in his title and possession and
that, as they were absentees from the State of Louisiana, he prayed
for the appointment of curators
ad hoc to represent them
in the case.
George K. Waters was designated by the court as their curator,
and upon being summoned, appeared in that relation, and, assuming
to be the attorney of Keller & Foreman, filed an answer for
them. Keller & Foreman, however, never had any knowledge of the
suit nor any notice of the appointment of Waters as curator.
Waters, in his answer, cited in warranty the legal
representatives of A. J. Davis, deceased, from whom Keller &
Foreman had bought the land.
The legal representatives of Davis appeared by George Purvis,
their curator, and in their turn cite in warranty, Anthony Calvit,
their ancestor's vendor, who was the father of the plaintiff, by
whom the land had been sold to Davis. Anthony Calvit appeared by
attorney, denying the petitioner's allegations.
After several continuances, the case was brought to trial in the
district court and judgment was entered for the defendants. The
plaintiff carried it by appeal to the Supreme Court of Louisiana.
The judgment of the court below was reversed on the 26th November,
1845. That court decided that the two youngest petitioners, James
and Coleman Calvit, were each entitled to one undivided eighth of
the land in controversy, but that William J. Calvit and Elizabeth
G. Calvit were excluded from recovering on account of the
prescription of ten and twenty years, which Mulhollan had pleaded
in his answer. The court then remanded the cause to the district
court for further proceedings on the question of improvements,
costs, and profits and of damages between the warrantors.
Afterwards, on a rehearing, the supreme court directed a further
inquiry to be made for the purpose of ascertaining
Page 64 U. S. 145
whether the price received for the land by the father and tutor
of the plaintiff had been applied to the payment of the debts of
the community of their father and mother,
"and it ordered, if any of it had been, that James and Coleman
Calvit should contribute in proportion to their rights in the land
and that, in the meantime, no writ of possession should issue until
they had paid the amount which the court below might determine to
be due by them."
After the rendition of the supreme court's decree, Charles
Mulhollan died. His will was admitted to probate on the 11th July,
1846. On the same day, his death was suggested, and an order was
passed to renew the suit in the names of his legal representatives.
Three days afterwards, Thomas O. Moore the executor of Mulhollan,
paid to James and Coleman Calvit $2,400 for a relinquishment of
their claims to the land in controversy, and of all their rights in
the judgment which had been rendered in their favor.
No further proceedings were had in the suit from the 11th
November, 1846, to the 30th May, 1853, when the plaintiffs in this
suit made themselves parties, as heirs and universal legatees of
their uncle, Charles Mulhollan, the original defendant. They
adopted his answers and defenses, and ask for judgment against his
warrantors, Keller & Foreman, which was given on the following
day, in the district court, to which the cause had been remanded,
for those purposes only heretofore stated.
Such have been the relations of the parties named in the record
in the District and Supreme Court of the State of Louisiana.
Whatever was the liability of Keller & Foreman as warrantors of
Mulhollan, they never were subjected to the jurisdiction of the
district court by any valid proceeding from it to enable that court
to carry that liability into a judgment in favor of Mulhollan,
their vendee, or in favor of his representatives, Charles and Alice
Flowers.
When Mulhollan answered the petition of the Calvits and asked
that Keller & Foreman should be cited into court as his
warrantors, no citation for that purpose was served upon them to do
so. One was issued for and served upon Waters, to represent them as
curator
ad hoc, but that was insufficient
Page 64 U. S. 146
to give to the district court jurisdiction to pronounce judgment
against them, though that court did do so. Hence it is that this
action of assumpsit was instituted to recover damages alleged to
have been sustained upon a breach of the warranty of Keller &
Foreman to Mulhollan.
In the declaration in this action it is recited that Keller
& Foreman had conveyed to Mulhollan a tract of land, with
warranty, and that the supreme court had adjudged that James and
Coleman Calvit were each entitled to an undivided eighth of the
same. They were declared to have entered into the same and evicted
Mulhollan from it, in consequence of which Mulhollan, to regain his
possession, had paid to James and Coleman Calvit twenty-four
hundred dollars for the relinquishment of their claims to the land.
To this action the defendant pleaded
non-assumpsit, and it
was agreed in writing by the counsel in the cause that under such
issue, all errors in pleading should be mutually waived and that
the defendant was to be permitted under it to rely upon the statute
of limitations.
Upon the trial of the case, that point was urged. The statutes
of Maryland of the years 1715, ch. 23, and 1818, ch. 216, entitled
"Acts to Avoid Suits at Law," were insisted upon as constituting a
bar to the recovery of the plaintiff. Such was the instruction
given by the court.
There is no error in the instruction. More than three years had
elapsed after their right of action had accrued before the
plaintiffs brought their suit. Their uncle had been judicially
declared not to be entitled to a part of the land by the decree of
the supreme court. That, of itself, was an eviction under the law
of Louisiana, though the court postponed giving a writ of
possession to the parties in whose favor its decree was made for
the purpose of having certain points ascertained in which all the
parties to the cause were interested -- no one of them more so than
Mulhollan himself. The date of the supreme court's decree in favor
of the two Calvits is 26th November, 1845, shortly after Mulhollan
died. The district court had not then adjudged those points for
which the case had been remanded to it.
Page 64 U. S. 147
Before that was done by the court, and soon after Mulhollan's
death, his active executor, Moore on the 14th November, 1846,
bought from the two Calvits their claim to that part of the land
which had been decreed to them by the supreme court. This itself
was an eviction, though the supreme court, in deciding upon these
rights to the land, had withheld from the Clavits a writ of
possession. It is not necessary, to constitute an eviction, that
the purchaser of land should be actually dispossessed. 11 Rob. 397.
It was also ruled in the same case that an eviction may take place
when the vendee continues to hold the property under a different
title from that transferred to him by his vendor. In this instance,
Mulhollan's representatives held the title to a part of the land,
originally bought by him from Davis as a whole, by the purchase of
James and Coleman Calvit's undivided eighth.
The same conclusions had been previously ruled by the same court
in
Auguste Landry v. Honore Felix Gamel, 1 Robinson 362.
The court's language is:
"It is true that by the authorities to which we have been
referred, the doctrine is well established that in order to
constitute an eviction, it is not absolutely necessary that the
purchaser should be actually dispossessed. That eviction takes
place, although the purchaser continues to hold the property, if it
be under a title which is not that transferred to him by his
vendor, as if he should extend the property or should acquire it by
purchase from the true owner."
Pothier, Vente, No. 96; Troplong, Vente, No. 415; Toullier, vol.
16; Continuation by Duvergier, vol. 1, Nos. 309, 313. Other cases
in the Louisiana reports have the same conclusions, but we do not
think it necessary to cite them. The rulings in 1 and 11 Robinson
announce it to be the uncontested doctrine in the Louisiana courts
that actual dispossession is not necessary to constitute an
eviction, and that if the purchaser holds under another title than
that of his vendee, an eviction may take place. Those decisions
cover the case in hand in both particulars, and they show that the
purchaser of the land had suffered an eviction by the decree of the
supreme court, in the meaning of that term in the law of Louisiana,
though a writ of possession had not been issued.
Page 64 U. S. 148
But if that was doubtful, it is certain that the eviction was
accomplished when the executor of Mulhollan bought, for the benefit
of his testator's estate, the claim to the land which James and
Coleman Calvit had acquired.
Mulhollan, by his will, granted to his executors, immediately on
his death, full and entire seizin and possession of all his estate,
to hold and manage the same until all the legacies given by him
were paid over and fully discharged. The signification of a
delivery of seizin to an executor will be found in articles 1652,
1664, 1666, 1667, of the Civil Code, and in 35 of Revised Statutes
3. These articles provide that a testator may give the seizin of
the whole or of a part of his estate to his executor, accordingly
as he may express himself. The seizin usually continues for a year
and a day, but may be prolonged by an act of the court and may be
terminated whenever the heirs shall deliver to the executor a sum
sufficient to pay the movable legacies. The seizin of the executor
is distinct from and paramount to the seizin which the law vested
in the heir immediately on the death of his ancestor, and the heir
can only deprive the executor of it by providing security for the
performance of his obligations. The executor represented the
reception, insofar as respects creditors and legatee.
Bird v.
Jones, 5 Ann.La. 645. When the testamentary executor submitted
to the title of the Calvits, and paid them for it, that was an
eviction, which gave to him a right of action in behalf of the
succession against the warrantors of his testator. His right of
action passed to the heirs of Mulhollan when he delivered the
succession to them or whenever it came to their hands by due course
of law. It was delivered to them, and the executor's seizin
terminated in the year 1847, though the precise day does not appear
in the record. The heirs, upon its termination, were reinstated in
all the rights which had been temporarily administered by the
executor. Those rights will be found in articles 934, 935, 936, of
the Code. One of the effects of those rights is to authorize the
heir to institute all the actions which the testator could have
done, to prosecute to a conclusion such as had been commenced by
the testamentary executor, and to commence all
Page 64 U. S. 149
actions which he had failed to institute belonging to the
succession. 15 La. 527; 7 Rob. 183; 2 Ann. 339; 7 Ann. 397. In such
a suit by the heirs, the same defenses may be made which could have
been applied if the executor's seizin had been continued. But in
this instance neither the executor nor the heirs, the plaintiffs in
the suit, took any legal step to carry to a judgment Mulhollan's
citation of Keller & Foreman in warranty in the District Court
of the Parish of Rapides until the 30th May, 1853, more than
fourteen years after the eviction of Mulhollan had occurred and
after the rights of the Calvits had been bought. The heirs now,
however, seek by this suit in assumpsit in the Circuit Court of the
United States for the District of Maryland to recover damages from
Foreman, the survivor of his partner, Keller, for the failure of
their warranty to Mulhollan, the suit having been commenced between
eight and nine years after their right of action had accrued. The
defendant relies upon the statutes of limitation of Maryland as his
defense to prevent a recovery. We think it must prevail, and that
the court below, in giving to the jury such an instruction,
committed no error. We therefore direct its judgment to be
Affirmed.
