Erwin v. Lowry

THIS case was brought up from the Supreme Court for the Western District of Louisiana, by a writ of error issued under the 25th section of the Judiciary Act.

In the beginning of the year 1835, Dawson and Nutt were the owners of some land situated in the parish of Carroll, in the State of Louisiana, on the waters of the Walnut Bayou, amounting to 640 acres, and also of a number of slaves. On the 8th of January, 1835, they sold the land and slaves to Alexander McNeill, of the State of Mississippi, for one hundred and five thousand dollars, payable in five payments; the first four of twenty-five thousand dollars each, and the last of five thousand. McNeill gave a mortgage upon the land and slaves to secure the last four payments.

Whether notes were given for all these payments, and when they were to be made, the record did not show. But by an indorsement upon the mortgage under date of January 15th, 1838, it appeared that all the payments had been made except the fourth.

About the 28th of May, 1839, Alexander McNeill died, in Mississippi.

By his will, which contains several legacies of small value, he bequeathed the mass of his estate to Hector McNeill, also a resident and citizen of Mississippi, whom he appointed his testamentary executor. On the 6th of June, 1839, this executor, stating himself to be a citizen of Coahoma county, in Mississippi, presented a petition to the judge of probates of the parish of Madison, in which, after stating that his testator had died on the date above stated, in Mississippi, and left a will, in which he was appointed sole executor and principal legatee, an authenticated copy of which was annexed to the petition, he proceeds to say, that two large estates were in the possession of his testator, situated in this parish.

He says further, that, by the laws of Mississippi, as executor of the will, he was bound to present it for probate in Warren county in that State, without delay; but as the court would not sit for some weeks, he could not then have the will proved and recorded, nor could he then present a duly certified copy of it to be recorded in the said Probate Court of Madison. He says he is 'desirous of taking on himself the succession of his deceased brother's estate, according to the terms of his last will and testament, and the laws of the State; he therefore prays that an inventory of all the property in the parish, belonging to the estate of said Alexander McNeill, deceased, be taken.' And he prays the judge to grant him the succession of the deceased Alexander McNeill, according to the terms of the will and the laws of the State; and that he will grant any other and whatever order may be necessary to entitle him (Hector) to the possession and succession of the property left by the deceased. Upon this petition no order or judgment was given by the probate judge; but on the 2d of July following, he proceeded to make an inventory of the property composing Alexander McNeill's succession, which is signed by Hector McNeill, as executor. The will was probated in Warren county, Mississippi, on the 24th of June, 1839, and a copy of it, and the proceedings in the aforesaid court, recorded in the Probate Court of Madison on the 1st of July, 1839, one day before the taking of the inventory, but no order taken on it, further than to record it.

By the inventory and appraisement, the whole property of the deceased in that parish amounted to $245,317.

On the 1st of November, 1839, Hector McNeill presented the following petition:--

'To the Honorable Richard Charles Downes, Parish Judge in and for the Parish of Madison, State of Louisiana.

'Hector McNeill, heretofore a resident of Warren county, State of Mississippi, respectfully represents to your honor, that he is the owner of large possessions in this parish, consisting of plantations, negroes, &c., &c.; that he is desirous of acquiring residence, and to be entitled to the privileges, & c., &c., of a resident of this parish; that he is aged thirty-one years; that he is from the State of Mississippi, as aforesaid, and that he desires to pursue planting in this parish, and to reside and make his permanent domicile and home on the Walnut Bayou, parish of Madison, Louisiana. Wherefore, he prays this notice may be duly filed and recorded.

(Signed,) H. McNEILL.

'Walnut Bayou, La., Nov. 1st, 1839.'On the 23d of May, 1840, Andrew Erwin filed the following petition in the Circuit Court of the United States:--

'To the Honorable the Judges of the Circuit Court of the United States for the Ninth Circuit of Louisiana.

'The petition of Andrew Erwin, a citizen of the State of Tennessee, therein residing, respectfully shows:-That Hector McNeill, testamentary executor of Alexander McNeill, a citizen of the State of Louisiana, residing in the parish of Madison, within the jurisdiction of this honorable court, is justly indebted to your petitioner in the sum of seventeen thousand five hundred dollars, besides interest on the promissory notes hereto annexed for reference and greater certainty, drawn on the 8th of January, 1835, and payable four years after date, and duly protested when due for want of payment, as will further appear from the protests thereof hereunto annexed for reference; one of which notes was payable to the order of Conway R. Nutt, a citizen of the State of Mississippi, and by him duly indorsed to your petitioner; and the other to Henry S. Dawson, also a citizen of the State of Mississippi, and by him duly indorsed to your petitioner; who avers that the assignors of said notes could have maintained an action in your honorable court on the said notes, against the said Alexder McNeill, previously to the assignment thereof; that on the balance of one of said notes, seven thousand five hundred dollars, interest is due at the rate of ten per cent. per annum, from the 11th of January, 1839, until paid; and on the balance of the other, five thousand dollars, interest is due from the same date, 11th of January, 1839, until paid, and which, though amicably requested, the said Alexander McNeill, as well as his testamentary executor, has neglected to pay.

'Your petitioner further shows, that said notes were given in purchase of a plantation situated in the parish of Madison aforesaid, and certain slaves; and for securing the payment thereof, the said plantation and slaves were duly mortgaged, as will further appear from a certified copy thereof, hereto annexed to make part and parcel of this present petition, and to which, for greater certainty, your petitioner refers; and thence your petitioner is entitled to an order of seizure and sale for the payment of the balance aforesaid of seventeen thousand five hundred dollars, with the interest from the 11th of January, 1839, of ten per cent. on the sum of seven thousand five hundred dollars, and on ten thousand dollars interest at the rate of five per cent. until paid, and the costs of the protests of said notes, ten dollars and fifty cents. Wherefore your petitioner prays that an order of seizure and sale may issue against the said plantation, and the negroes mentioned and described in the act of sale and mortgage aforesaid, hereunto annexed, to pay and satisfy said sum of seventeen thousand five hundred dollars, with interest as aforesaid, from the 11th of January, 1839, until paid, with $10.50 costs of protest, and the costs of suit. And your petitioner prays for all such other and further relief as the nature of the case may require, and to equity and justice may appertain; and as in duty bound will ever pray your petitioner. (Seventeen thousand and five hundred dollars, besides interest and costs, claimed.)