Page:United States Statutes at Large Volume 2.djvu/738



a sum of money paid to him, and took from them a counter-letter, signed by them; by which it was agreed, that on the payment of a sum stated in it, on a day stated, the property should be reconveyed by them to L.; and if not so paid, the property should be sold by an auctioneer; and, after repaying, out of the proceeds, the sum mentioned in the counter-letter, the balance should be paid to L. The money was not paid on the day appointed, and a further time was given for its payment, with additional interest and charges; and if not paid at the expiration of the time, it should be sold by an auctioneer. An agreement was at the same time made by L., that the counter-letter should be delivered up to F. and S., and cancelled. The money not being paid, it was again agreed between the parties, that if on a subsequent day fixed upon, it should not, with an additional amount for interest, &c., be paid, the property should belong absolutely to F. and S. The money was not paid, and F. and S. afterwards held the property as their own. The supreme court held this transaction to be an antichresis, according to the civil code of Louisiana: and on a bill filed in the district court of the United States, for the eastern district of Louisiana, in 1832, decreed that the rents and profits of the estate should be accounted for by S., who had become the sole owner of the property by purchase of F.’s moiety, and that the property should be sold by an auctioneer, unless the balance due S., after charging the sum due at the time last agreed upon for the payment of the money, and legal interest, with all the expenses of the estate, deducting the rents and profits, should be paid to S.; and on payment of the balance due S., the residue should be paid to the legal representative of L. Ibid.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. Ibid.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. Ibid.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. Ibid.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 this suit had not elapsed, in which, by the law of Louisiana, a person may sue for immovable property.By the contract of antichresis, the possession of the property is transferred to the person advancing the money. 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 which it was pledges, is to be paid to the person making the pledge. Ibid.If any rule has been made by the district court of Louisiana, abolishing chancery practice in that court, it is a violation of those rules which the supreme court of the United States has passed to regulate the courts of equity of the United States. Those rules are as obligatory on the courts of the United States in Louisiana, as they are upon all other courts of the United States; and the only modifications or additions which can be made by the circuit or district courts, are such as shall not be inconsistent with the rules prescribed. When the rules prescribed by the supreme court do not apply, the practice of the circuit and district courts shall be regulated by the practice of the high court of chancery in England. Story v. Livingston, 13 Peters, 359.The supreme court has said, upon more than one occasion, after mature deliberation upon able arguments of distinguished counsel against it, that the courts of the United States in Louisiana, possess equity powers under the constitution and laws of the United States. That if there are any laws in Louisiana, directing the mode of procedure in equity causes, they are adopted by the ; and will govern the practice in the courts of the United States. But if there are no laws regulating the practice in any equity causes, the rules of chancery practice in Louisiana, mean the rules prescribed by the supreme court, for the government of the courts of the United States, under the, sec. 2. Ibid. made at Paris, on the thirtieth day of April, one thousand eight hundred and three, between the United States and France, contained within the following limits, that is to say: beginning at the mouth of the river Sabine; thence, by a line to be drawn along the middle of said river, including all islands to the thirty-second degree of latitude; thence, due north, to the northernmost part of the thirty-third degree of north latitude; thence, along the said parallel of latitude, to the river Mississippi; thence, down the said river, to the river Iberville; and from thence, along the middle of the said river, and lakes Maurepas and Ponchartrain, to the gulf of Mexico; thence, bounded by the said gulf, to the place of beginning, including all islands within three leagues of the coast; did, on the twenty-second day of January, one thousand eight hundred and twelve, form for themselves a constitution and state government, and give to the said state the name of the state of Louisiana, in pursuance of an act of Congress, entituled “:” And the