EDWARD LIVINGSTON'S EXECUTRIX, APPELLANT V. BENJAMIN STORY.

Louisiana. On the 25th July, 1822, Livingston applied to, and obtained from Fort & Story, a loan of 22,936 dollars, on a security of a lot of ground in New Orleans, on which stores were then being built. This sum was received, part in cash, part in a promissory note, and 8,000 dollars were to be paid to the contractor for finish. ing the stores on the lot. The property was conveyed by Livingston, to Fort & Story, by a deed of absolute conveyance; and he received from F. & S. a counter letter, by which they promised to reconvey the property to him, if, on or before the 1st of February, 1823, hẹ paid them 25,000 dollars. By the counter letter, on payment of the loan, the property was to revert to L.; if not, it was to be sold by an auctioneer of the city of New Orleans, and the residue of the proceeds of the same paid to L.; the money advanced by F. & S., with the interest and the expenses, being first deducted. The agreement for building the stores. was transferred by L. to F. & S., and they agreed to pay the 8,000 dollars, as the work proceeded, in instalments. On the 1st of February, 1823, the buildings had not been completed, and F. & S. agreed that the payment of the sum due on that day should be postponed until the 2d June, 1823; the sum of 25,000 dollars, to be increased to 27,500, being at the rate of eighteen per cent. per annum, for four months, and the residue for expenses of selling the property at auction, &c. An agreement was made, that if the amount named should not be paid on the 1st of June, 1823, the property should be sold at auction, and after the repayment of the sum of 27,500 dollars, the expenses of sale, &c., the residue should be paid to L. By the same agreement, the counter letter was to be delivered up, and the record of it cancelled. On the 2d of June, the money not being paid by L. to F. & S., it was agreed, that if on or before the 5th of August, 1823, the sum due, with interest, at eighteen per cent. per annum, to amount to 27,860 dollars, 76 cents, should not be paid by L. to F. & S., the lot, and all the buildings, should become the full and absolute property of F. & S. The money was not paid; and F. &. S. protested, as they had done on the 4th of February, for noncompliance with the agreement to pay the money agreed to be paid. From this time, F. & S. continued in possession of the lot and the buildings, until the death of Fort, in 1828; when S. purchased the share which had belonged to F., and he holds the property to this time. The evidence in the case showed, that after July, 1822, the contractor did not apply the 8,000 dollars to the completion of the stores on the property; and although F. & S. knew that he was so neglecting to apply the funds, they continued to pay over the same to him, in weekly payments, according to the contract. In 1832, L. having become a citizen of New York, filed a bill in the district court of the United States, for the eastern district of Louisiana, claiming to have the property held by S., reconveyed to him, on the payment to S. of the sum due to him, and interest on the same, deducting the rents and profits of the estate; or that the same should be sold according to the terms of the counter letter; and after the payment to S. of the amount due to him, with interest, the same deductions having been made, that the balance remaining from the sale should be so paid to him. By the Court.-After much inquiry and

[Livingston v. Story.]

deliberation, and a comparison of the civil code of Louisiana, with the civil law from which it derives its origin, and with which it is still in close connexion, we have come to the conclusion that the original contract, and counter letter, constituted a pledge of real property; a kind of contract especially provided for by the laws of Louisiana, denominated, "an antichresis." By this kind of contract, the possession of the property is transferred to the person advancing the money. That was done in this case. In case of failure to pay, the property is to be sold by judicial process, and the sum which it may bring, over the amount for what it was pledged, is to be paid to the person making the pledge. In this case a provision was made for a sale by the parties, upon the failure of payment; but this feature of the contract is rather confirmatory of the contract and counter letter being an antichresis, than otherwise; for it is, at most, only a substitution by the parties of what the laws of Louisiana require. The decree of the Court was in conformity to those principles.

Under the law of Louisiana there are two kinds of pledges; the pawn, and the antichresis. A thing is said to be pawned, when a movable is given as a security: the antichresis is when the security given consists in immovables. The antichresis must be reduced to writing. The creditor acquires by this contract the right of reaping the fruits or other rewards of the immovables given to him in pledge; on condition of deducting, annually, their proceeds from the interest, if any be due to him, and afterwards from the principal of his debt. The creditor is bound, unless the contrary is agreed on, to pay the taxes, as well as the annual charges of the property given to him in pledge. He is likewise bound, under the penalty of damages, to provide for the keeping and necessary repairs of the pledged estate; and may lay out, from the revenues of the estate, sufficient for such expenses.

The creditor does not become proprietor of the pledged immovables, by the failure of payment at the stated time; any clause to the contrary is null: and in that case, it is only lawful for him to sue his debtor before the court in order to obtain a sentence against him, and to cause the objects which have been put into his hands to be seized and sold.

The debtor cannot before the full payment of his debt, claim the enjoyment of the immovables which he has given in pledge; but the creditor, who wishes to free himself from the obligations under the antichresis, may always, unless he has renounced this right, compel the debtor to retake the enjoyment of his immovables. The doctrine of prescription, under the civil law, does not apply to this case, which is one of pledge; and if it does, the time before the institution of this suit had not elapsed, in which, by the law of Louisiana, a person may sue for immovable property.

ment.

The 23d rule of this Court for the regulation of equity practice in the circuit courts, is understood by this Court to apply to matters applicable to the merits, and not to mere pleas to the jurisdiction; and especially to those founded on any personal disability, or personal character of the party suing; or to any pleas, merely in abateThe rule does not allow a defendant, instead of filing a formal demurrer or a plea, to insist on any special matter in his answer; and have also the benefit thereof, as if he had pleaded the same matter, or had demurred to the bill. In this respect, the rule is merely affirmative of the general rule of the court of chancery; in which, matters in abatement, and to the jurisdiction, being preliminary in their nature, must be taken advantage of by plea, and cannot be taken advantage of in a general answer; which necessarily admits the right and capacity of the party to sue.

[Livingston v. Story.]

APPEAL from the district court of the United States for the eastern district of Louisiana.

The case, as stated in the opinion of the Court, was as follows: The complainant, the appellant's testator, on the first day of February, 1834, filed a bill in equity in the district court of Louisiana, in which he stated himself to be a citizen of the state of New York, against Benjamin Story, a citizen of the state of Louisiana.

The bill charged, that some time previous to the 22d of July, 1822, the complainant, being in want of money, applied to the defendant and John A. Fort for a loan, offering as a security a lot in the city of New Orleans, on which a building, intended for stores, had been begun; that the defendant and Fort agreed to loan him twenty-two thousand nine hundred and thirty-six dollars; of which a part only was paid in cash, part in a note of John A. Fort, and eight thousand dollars of which was afterwards agreed between himself, the defendant and Fort, to be paid by Story and Fort, to one John Rust, a mechanic, who had contracted with the complainant, to complete the stores. That to secure the money borrowed, complainant conveyed to Fort and Story the lot of ground mentioned, and that cotemporaneously with the deed of sale, they executed, on their part, an instrument in writing, calied a counter-letter, by which they promised, on the payment of twenty-five thousand dollars, on or before the 1st day of February, 1823, to reconvey to the complainant the property which he had conveyed to them. The complainant further charges, that of the sum of twenty-five thousand dollars to be paid by him on the 1st of February, a part of it was made up by a charge of interest at eighteen per cent. per annum, upon the amount of twenty-two thousand nine hundred and thirty-six dollars, actually advanced to him, and to be paid on his account to Rust, by Fort and Story.

The complainant also transferred his written contract with Rust to the defendant and Fort, rendering himself responsible for the proper employment of the 8,000 dollars; and which was to be paid Rust in weekly payments, by the defendant and Fort. Rust, on his part, consented to the transfer of his contract, and accepted Fort and Story in the place of the complainant. The stores were to be completed by Rust by the 1st of November, 1822, in a workmanlike manner; and all the materials, except those already provided, were to be found by Rust; and in his contract, he renounces all claim or VOL. XI.-2 Y

[Livingston v. Story.]

privilege upon the building beyond 8,000 dollars, which was to be paid him by Fort and Story, for the complainant. The deed and counter letter, and agreement with Rust, are in notes A, B, and C.

(A) Deed. In the city of New Orleans, state of Louisiana, on this 25th day of July, 1822, and in the forty-seventh year of the Independence of the United States of America, before me, Hughes Lavergne, a notary public, duly commissioned and qualified, in and for the city and parish of New Orleans, residing therein, and in the presence of the subscribing witnesses hereinafter named, personally appeared, Edward Livingston, of this city, counsellor at law, who declared to have granted, bargained and sold, and doth by these presents grant, bargain and sell, with all lawful warranty into John A. Fort and Benjamin Story of this city, merchants, here present, anc accepting, all that parcel of ground situated on the batture of the suburb St. Mary, between Common and Gravier streets, measuring eighty two feet, fronting Common street, one hundred and twenty-six feet, or thereabouts, fronting Tchoupitoulas street, one hundred and forty-six feet, or thereabouts, fronting New Levee street; and bounded on the other side by the lot of ground belonging to Messrs. Livermore, Morse, and Miller, and Pierce, containing one hundred and twenty feet, or thereabouts, the said parcel of ground sold, together with the buildings, improvements, and all other appurtenances to the same in any wise appertaining or belonging without any exception or reserve, the said purchasers declaring that they are perfectly acquainted with the premises, and do not wish for any further description of

the same.

The above described property belongs to the said vendor by virtue of the compromise entered into between him and the heirs of Gravier, by act before Carlisle Pollock, notary public of this city, under date of the 3d of May, 1818, and is free of mortgage, as appears by the recorder's certificate delivered this day, and hereunto annexed. This sale is made for and in consideration of the sum of 25,000 dollars, which price the said vendor acknowledges to have received from the said pur. chasers, out of the presence of the undersigned notary and witnesses, renouncing the exception non numerata pecunia, and giving by these presents to the said purchasers a full and entire acquittance and discharge of the said sum of 25,000 dollars. In consequence of which payment the said vendor doth hereby transfer and set over unto the said purchasers, all his rights of property on the above parcel of ground and buildings thereon; consenting that they should take immediate possession of the said premises now sold, to have, hold, use, and dispose of the same as fully belonging to them by virtue thereof.

This done and passed, in my office, in the presence of John Baptiste Desdunes, junior, and Charles Janin, witnesses, residing in this city, who, together with me, the said notary, have signed this act after the same had been fully read and understood. The contracting parties having previously signed.

(B) Counter-Letter. Whereas, the said Edward Livingston, by act before H. Lavergne, notary public, hath this day sold and conveyed to said Fort and Story, a certain lot of ground, situated on the batture in front of the fauxbourg St. Mary, and designated as lot No. 1, on the plat thereof, deposited in the office of the said notary, together with all the buildings and improvements thereon, for the sum of twenty-five thousand dollars in cash :

Now, be it known, and it is the true intent and meaning of the parties to said deed of sale, that if the said Edward Livingston shall pay and reimburse to said John A. Fort and Benjamin Story, the aforesaid suin of twenty-five thousand dollars, on or

[Livingston v. Story.]

The complainant charges, that soon after the transaction, he left New Orleans; and that when he returned to it, he found that Fort and Story had paid to Rust 8000 dollars, on his account, but that little or nothing had been done toward the completion of the stores; so that if the property had been sold on the first of February, according to the terms of the counter-letter, it would not have pro

before the 1st day of February, 1823, then, and in that case, the said Fort and Story stipulate and bind themselves to reconvey the said property above described, to said Edward Livingston. And in case of nonpayment of the said sum of twenty-five thousand dollars, on or before the day as above stipulated, then the said Fort and Story covenant and agree to cause the said property to be sold at public auction, by one of the licensed auctioneers of this city, after twenty days' public notice, on the following terins, to wit: twenty-five thousand dollars in cash, and the residue in equal payments one and two years: the purchaser giving satisfactory endorsed notes and special mortgage on the property until final payment. The said residue, after deducting the costs attending the sale, to be delivered over to the said Edward Livingston.

And the said Edward Livingston, on his part, having taken cognisance of this agreement, declares himself to be perfectly satisfied and contented therewith, and gives his full and free assent to the terms of sale and all the conditions as above stipulated.

(C) Agreement with John Rust. It is hereby agreed, between Edward Livingston

and John Rust, as follows:

First, That the said John Rust engages, for the price hereinafter mentioned, to finish the sixteen stores now commenced and brought up to the ground floor, situa. ted at the corners of Tchoupitoulas, Levee and Common streets, according to the plan and elevation signed by them and delivered to the said Edward Livingston; except that the said stores instead of three are to be only two stories high, to be covered in terrass. The whole to be finished by the 1st day of November next, in a workmanlike manner; and all the materiais, except those already provided, to be found by the said John Rust.

And the said Edward Livingston agrees to pay to the said John Rust eight thousand dollars, in weekly payments of six hundred and sixty-six dollars each, during the progress of the work.

And the said John Rust declares that he renounces any kind of claim or privilege upon the said building beyond the said cight thousand dollars to be paid as aforesaid.

Know all men, by these presents, that I, Edward Livingston, for myself and my representatives, do hereby transfer and assign the within contract to John A. Fort, and Benjamin Story, they complying with the stipulations on my part therein con tained; and John Rust being here present, consents to the said transfer, and accepts the said John A. Fort and B. Story, in the place of Edward Livingston. Dated 25th of July, 1822.

I do further agree to allow the said weekly payment of six hundred and sixty-six dollars to be charged to me, rendering myself responsible for the proper employment thereof, by the said John Rust.