Chesneau Family Property and the Lawsuit Over It

Date: [unknown] [unknown]
Location: New Orleans, Louisiana
Surnames/tags: Chesneau Drouet

This page is a work in progress, serving as a collection place for documents relating to the Chesneau and Drouet families having no place on individual profiles.

Contents 1 Property owned by the Chesneau family which became the subject of a lawsuit 1.1 the Chesneau Mansion-- not part of the lawsuit? 2 the Louisiana Supreme Court Appeals 2.1 February Term 1822, Chesneau's Heirs v. Sadler 2.2 June Term 1824, Chesneau v. Girod. 2.3 March Term 1825, Goodwin v. Heirs of Chesneau. 3 Sources

Property owned by the Chesneau family which became the subject of a lawsuit

In 1803 Chesneau died leaving minor children. His wife, Susanne Drouet, remarried in 1807 to John Goodwin, and died in 1808. A tutor was appointed to represent the rights of the children, two of whom were by then of age. The stepfather asserted claims on the estate, and the tutor made an unauthorized compromise with him, giving him full ownership of property of which he only owned a life estate (usafruct) in exchange for his claims and a lot (the Chesneau Mansion?). Goodwin sold the property and the heirs sued the buyer to get it back.

• 36 lots in Fauxbourg St. Mary (now commonly referred to as the CBD)

the Chesneau Mansion-- not part of the lawsuit?

If not, why are so many descriptions of it included in the gedcom? The following accounts of the Chesneau Mansion describe a well-built Spanish colonial structure in a prime location in New Orleans' Vieux Carre (not Fauburg St. Mary), built by Chesneau in 1800.

• Location: 531-533 St. Louis Street
• Owned: between 06 Oct 1801 & 22 Oct 1810 New Orleans, Louisiana

Chesneau Mansion links:

• http://www.loc.gov/pictures/item/la0234/

• https://books.google.com/books?id=505nWtw-5fMC&pg=PA37&lpg=PA37&dq=Chesneau+Mansion+New+Orleans&source=bl&ots=r-KnFPmP24&sig=ACfU3U3ZCQg4hT8XBa0mi9f1bmInOwFeaQ&hl=en&sa=X&ved=2ahUKEwikyqzevMDpAhUFI6wKHaUyBh0Q6AEwDnoECAoQAQ#v=onepage&q=Chesneau%20Mansion%20New%20Orleans&f=false

• https://www.hnoc.org/vcs/property_info.php?lot=18449

• http://www.cypressbuildingconservation.com/assets/brulatour_attic_final_optimized.pdf - see pdf pages 12-13

From Old New Orleans: A History of the Vieux Carre, Its Ancient and Historical Buildings

Let us turn into Saint Louis Street in the direction of the river for a moment to inspect the building that adjoins Nicolas Girod's home. It, too, is a fine old building, a relic of the days of the Spanish builders. Unfortunately the structure has become known in late years as the "Lafitte Bank". As a matter of fact, there was never a bank of that name in New Orleans and this building was never put to such a use. Architects have long admired the building's simple beauty and sturdy construction and various estimates have been made as to its exact age. It was erected by Jean Louis Chesneau, quite probably just after he secured the site from the widow of Jean Turpin for four thousand and fifteen pesos, on October 6, 1800. Ten years later, when the Widow Chesneau sold the edifice to Armand Duplantier the sale price was $17,000. In 1832 the old Chesneau place passed into the possession of Quertier & Broutin, a firm of commission merchants, and was then valued at $25,000. In 1860, the house of Lafitte & Dufilho, "commission merchants and real estate", moved into old 19 Saint Louis street, and remained there until the firm was liquidated in 1886. It was never a bank and Charles Lafittte, the commission merchant, was not related to the Laffites, the famous Baratarian smuggling brothers, as can be determined by the spelling of the family name. His partner Joseph Alfred Dufilho, was a son of Druggist Dufilho whose home we have just visited.^[1]

From The French Quarter of New Orleans

Other Spanish Colonial houses erected in 1800 are the Hotel Maison de Ville at 727 Toulouse and the Chesneau Mansion at 531-533 St.Louis Street. The Chesneau Mansion has the expected features: plastered brick walls, second-floor French doors that open onto a dainty wrought-iron gallery, a low-pitched roof (the original was even flatter) and a porte-cochére leading to a loggia that provides access to either the courtyard or the upstairs rooms. It was built as a residence for Jean Louis Chesneau, and originally contained an entresol, which has since been demolished. It was later turned into a commercial property by real estate merchants Lafitte and Dafilho.^[2]

From Historic Map Works

The Chesneau Mansion, situated along St.Louis Street in the renowned Quarter Francaise of New Orleans is one of the finest examples of late eighteenth and early 19th century architecture in the city. Chesneau Mansion is prototypical of a type of commercial-residential building that arose in Spanish New Orleans following the fires of 1788 and 1794. Unusually sophisticated mantels, cornices, and hand-forged hardware distinguish the building as an important reservoir of architectural details found in houses contemporary to the 1800 period. The setting of the Chesneau Mansion, surrounded by "buildings of major historical significance" of the same period, dramatically enhances its value. Constructed shortly after 1800, the Chesneau Mansion is a two-story brick building. The ground floor ained two stories, each with separate storage areas or entresols, following the Mediterranean tradition; the second floor constituted the premier etage or living quarters for the family. Divided into four large chambers which were bisected by a narrow wall, this floor was accessible through a winding wooden staircase which extends from the ground floor loggia to an elegant glass-enclosed loggia upstairs. Architectural remnants in the attic conclusively establish that the roof was originally terraced. ^[3]

From Vieux Carré Commission Evaluation:

lot#18449 #9, 531-533 St. Louis Street; Square: 27 Vieux Carré Commission Evaluation: No change - blue.

This c1800 2-story Creole style building, which is known as the Chesneau House or later as the Lafayette Bank Building, originally had an entresol level. Remaining today are the porte-cochere entrance, wrought iron balcony extending across the central three of the five openings on the front façade. Also intact is the open rear loggia with stairway and rear courtyard configuration of a central courtyard surrounded by the main residence and two detached service buildings. Blue Portion of Building: Main Material: Masonry Dimensions (Dimensions run CCW) frontage: 43' 0" 0 (side 2:107' 8" 6) (side 3:42' 9" 0) (side 4:107' 8" 6)^[4]

From Succession of Jean Louis Chesneau:

Chain of Title: Monday 06 Oct 1800
Record Source: Original Act vol. 37 p. 595
Record Type: [sale?]
Authority: Pierre Pedesclaux (Notary)
Authority Date: Monday 06 Oct 1800
From: Magdalena Doucet (wife of Juan Bautista Turpin) Juan Bautista Turpin (husband of Magdalena Doucet)
To: Juan Chesneau
Brief Description: A portion of land 40' front by 61' of depth on which is constructed a brick house situated on Calle San Luis, bounded on one side by lot of Mr. Bore, and on the other by that of the Purchaser.
Purchased from Angela Monget, Widow Dejan, May 20, 1793.
Saturday 11 Dec 1802
Record Source: Will Book vol. 1 p. 103
Record Type: will
Authority: Narcisse Broutin (Notary)
Authority Date: Not Given
Agent Single Party Act
Other: Juan Chesneau (succession of)
Brief Description: Will of Juan Chesneau, native of Isle of Oleron, bishopric of Saintes. Filed: 02 July 1807.
Tuesday 11 Sep 1810
Record Source: Original Act vol. 4 p. 286
Record Type: [sale?]
Authority: M. de Armas (Notary)
Authority Date: Tuesday 11 Sep 1810
Agent Single Party Act
Other: Juan Chesneau (succession of)
Brief Description: Heirs from the Succession of Juan Chesneau. Because of the impossibility of dividing the movable property belonging to the Succession Chesneau, it was adjudged right to sell same at auction by Dutillet and Peyrellade.
Friday 14 Sep 1810 Record Source: Newspaper
Record Type: auction
sale Authority: Louisiana Courrier (Newspaper)
Authority Date: Not Given
Agent Single Party Act
Other: Juan Chesneau (widow) Brief Description: Sale at auction by Dutillet and Peyrellade ... estate of the Widow Chesneau.
"3rdly - A large two story brick house iguous on one side to that of Mr. N. Girod and on the other to that of Mr. E. Debon, divided below into two stores with their entresols, and above into 4 large rooms, with gallery in front and back and having a very large kitchen with rooms above for servants. The said house is built on a ground of 42' fronting St.Louis Street and measuring 101' in depth."
Monday 22 Oct 1810
Record Source: Original Act vol. 4 p. 380
Record Type: [sale?]
Authority: M. de Armas (Notary)
Authority Date: Monday 22 Oct 1810
from: Michel Anfoux (representing Mme. Elizabeth Chemeaux and her minor children) Louis Chesneau (minor heir) Antoine Chesneau (minor heir)
To: Armand Duplantier
Brief Description: Large brick house of stories composed of two large stores with entresol above, four large apartments (rooms) on first floor, galleries, kitchen, and rooms.
Citations: "Sale at Auction by Dutillet and Peyrellade ... estate of the Widow Chesneau ... 3rdly - A large two story brick house iguous on one side to that of Mr. N. Girod and on the other to that of Mr. E. Debon, divided below into two stores with their entresols, and above into 4 large rooms, with gallery in front and back and having a very large kitchen with rooms above for servants. The said house is built on a ground of 42' fronting St.Louis Street and measuring 101' in depth."
Source: Louisiana Courier
Date: Friday 14 Sep 1810
There are fine old houses, tucked away on side streets in the Quarter, that tourists never see and current residents are scarcely aware of ... [a]mong such great buildings is one known to architectural historians as 'Chesneau Mansion' on the downtown side of St. Louis between Decatur and Chartres." Source: Vieux Carre Courier Author: Edith E. Long Date: Friday 30 May 1969 -->

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the Louisiana Supreme Court Appeals

February Term 1822, Chesneau's Heirs v. Sadler

The tutor cannot make a compromise respecting the immovable property of the minor without a judicial decree which sanctions it. A ract for the property of persons under age, is absolutely null, if entered into without the formalities which the law prescribes. Nor is it necessary, when they sue for the property, to show that they were injured by the transaction. If the minor, however, approves expressly or tacitly of the alienation, after coming of age, he cannot afterwards sue for the property.

Appeal from the court of the parish and city of New Orleans. Porter, J.

The plaintiffs claim from the defendant a lot of ground, descended to them from their mother, and illegally alienated by their tutor. The defendant asserts his right to it, under Goodwin, the step-father of the plaintiffs, to whom it was transferred by Girod, their tutor, with other property; in consequence of Goodwin's abandoning his right to a very considerable portion of the estate of his deceased wife, the plaintiff's mother. He has called in his vendor, who, in turn, has cited Girod the tutor. There was judgment for defendant, and the plaintiffs appealed. The counsel for the appellees urge, that the judgment is correct, as

1. The alienation was legal.
2. If any of the formalities required by par#6, 16, 18, had been omitted, the alienation would still be legal; as this is one of the cases in which they are not required.
3. The plaintiffs cannot prevail, without showing they were injured.
4. The defendant has shown they were benefitted.
5. The alienation has been ratified by two of the plaintiffs.

I. The lot now sued for, three slaves and a house, were alienated on consideration of Goodwin's relinquishment of all claims and pretensions, which he might have on the estate of his deceased wife, such as gains, and other rights granted him by her will. This compromise was made by the tutor without any authorisation. On the next day he applied to the judge of probates, for the convocation of a family meeting to deliberate on the affairs of the minors. This meeting approved the transaction, and directed the tutor to sell the rest of the property; but their proceedings were not presented to the judge for ratification. This transfer is ended to be legal, because it was the result of a compromise, and not a sale; and it has been urged, that tutors do not require the authorisation of the judge to enter into racts of that description. Feb. 2, lib#2, c#1, n#85.

If we were to give the passage cited by the counsel from this author, the effect which he ends it should have, it appears to me we would destroy the whole policy of our law in relation to minors' property. It would follow as a consequence, that the tutor could dispose of all the property of his pupil, without a meeting of the family, without the authority of justice, without any legal solemnities whatever. If he could do all this, the other provisions of the law for the safeguard and protection of persons of a tender age, would be useless, and the benevolence which dictated them completely defeated. I have not been able to refer to the authorities relied on by Febrero. The law of the Partidas, 5, 5, 4, which is quoted, does not support the conclusion drawn from it. I apprehend the distinction taken by the plaintiffs' counsel is correct; that this power is to be restrained to movables of inferior value. Murillo, lib#1, tit#36, n#370.

I am more confirmed in this idea, because every book in our law which treats of the subject, lays down the general principle, that immovable property of a minor cannot be alienated, even for indispensable causes, without the authorisation of the judge. Partidas, 6,16,18; Id.5,5,4; Id.3,18,60. Febrero, 2, lib#1, cap#1, sect#2, n#85; Id. lib#3, cap#3, sect#1, n#70. Alienationem rei immobilis minoris, etiam evidenter ipsi utilem, non valere sine debita solemnitate et judicis decreto. Castillo, lib#4, cap#61, n#40, et seq.; 8 Martin, 632.

I do not think, therefore, the exception to the general rule has been sustained by the defendant. Indeed, we find other commentators expressly state, that the tutor cannot make a compromise respecting the immovable property of the minor, without a judicial decree which sanctions it. Castillo, lib#4, cap#61, n#31.

As that decree was not given in this case, we must hold the arrangement between Goodwin and the tutor wanting in the formalities which the law requires. But, it has been ended, that whether the property of a minor is disposed of, with or without the necessary legal solemnities, the ract cannot be set aside, unless it should appear that he has been injured by it, and that proof of this fact is a sine qua non condition to obtain restitution. This position has been ably supported. The counsel principally relies on Partidas, 6, 19, 2 and 6, which declares, that he who sues for restitution should prove two things - that he was a minor at the time he entered into the ract, and that he had made it to his damage and injury. The plaintiffs meet this by saying that the doctrine ended for by defendant, applies only to what is called restitutio in integrum: against acts valid in themselves, and has not any relation to the recovery of property alienated without the formalities which the law prescribes. To this it is replied, that the law of the Partidas already referred to, speaks of a sale made by a minor himself, without the assistance of his tutor or curator; that nothing can be more rary to the dispositions of the law than an act of that description, and that if, in the case put, he must prove lesion, much more ought he to be required to prove the injury sustained when he attacks a ract such as this, at which a tutor assisted, and which had the sanction of a family meeting. This is a concise summary of the arguments on this point. However difficult it may be to adduce any good reason why different rules were established on this subject, there is no doubt that they exist. The commentators on the laws of Spain, who treat on the rights of minors to obtain rescission of acts passed during minority, all recognise it. Febrero states, that the racts of persons under age ain the vice of nullity (es nula ipso jure) when the legal solemnities have not been observed, or even when observed, restitution can be had, if the minor suffers lesion, whether the ract is made by himself or under the authority of the tutor. Febrero, 2. cap#3, sect#1, n#67 and 83.

In this opinion he is supported by Castillo, Gomez, Murillo, and a variety of other writers; whom they cite in support of the doctrine. Castillo, lib#4, cap#61, n#40; Gomez res., cap#14, n#11; Murillo, liv#1, tit#41, n#395 and 399.

And on this principle, that the nullity in the one case is absolute, and that the ract must be shown to be prejudicial in the other; it became necessary when it was prima facie good, that the minor should commence suit for restitution in integrum; when null on the face of it, by want of the legal solemnities, it was not necessary to resort to that remedy. Febrero, 2, lib#3, cap#3, sect#1, n#67, 71, 83.

The same distinction was known to the Roman law. Dig. liv#4, tit#4, l. 16, n#3.

Having thus ascertained, that a ract for the property of persons under age is absolutely null, if entered into without the formalities which the law prescribes; it follows as a consequence, that when they sue for that property, it is not necessary they should show they have been injured by the ract, because, in truth, as to them, no ract has been made. It has been pressed on us, that the case put in the Partidas, of a minor racting without the authority of his tutor, being obliged to prove lesion, is a stronger instance of want of form than any other. But by the laws of Spain, a minor above puberty, and not of full age, could ract in his own name. par#3, tit#18, l. 59. And the form of an oath is prescribed in this law, to render the agreement more binding. 8 Martin, 631. I conclude, therefore, that the transfer from Girod, tutor of the plaintiffs, to Goodwin, was illegal and void. An important question, as to the rights of the parties in the suit, still remains. That is, whether the plaintiffs have done any act since they arrived at the age of majority which ratifies and confirms this alienation of their property. For the better understanding of this point, it is necessary to state the facts somewhat in detail. The plaintiff's father died in the year 1803, and their mother in 1808. The year preceding her decease, she married Goodwin. During her widowhood she purchased the property now in dispute. After her death, an inventory was made, and in it was included property purchased during the second marriage, and designated as follows ... "Thirty-six lots of ground, more or less, conformable to a sale made by Gravier to Goodwin". The mother of the plaintiffs, by last will and testament, gave to her husband the usufruct of one-fifth of all the property owned by her at her death. Difficulties arose between Girod, tutor of the minor children, and Goodwin, who claimed the usufruct of the property under the will already mentioned; and also a large sum for acquests and gains made during the marriage. This ended in a compromise, by which the tutor conveyed to the stepfather the premises now claimed, and he relinquished all his rights on the succession of his late wife, and all his claim for the acquests and gains. In the year 1812, Girod was removed from the tutorship, and rendered his account to Anfoux, husband of one of the plaintiffs, who was appointed to succeed him: in this account he debits the minors with the thirty-six lots in the Fauxbourg St. Mary. This account was disputed, and it was expressly alleged in the opposition filed, that Girod had no authority to enter into a compromise of the rights of the minors. The court, in giving judgment, reserved to the heirs their rights on this property. In the month of December 1818, the plaintiffs made by public act, a partition of the property purchased by Goodwin during marriage. The minor being represented by a curator, and the others, who were of age, by their agents. On these facts the defendant insists, that as the plaintiffs, who were of full age, have accepted and partaken among themselves, the property which was relinquished by their stepfather, as the consideration for the present lot; they have approved of this alienation, and cannot recover in this suit. The law on this point, I understand to be, that if the minor, after he comes to the age of majority, expressly ratifies the alienation, or tacitly approves of it, either by suffering the time prescribed for him to commence his action to expire, or by doing acts in conformity with the transfer of his property, that he cannot afterwards claim it. Febrero, p2, cap#3, sect#1, n#83, 90.

Because, in the language of the law, la voluntad que se deduce del acto, es mas poderosa, que la que consiste en palabras; the intention which is inferred from the act, is more powerful than that which can be ascertained from words. I have doubted whether these provisions were intended for cases where the nullity was absolute, but on examination, I am satisfied it applies as well to cases of that description, as to those when the act has been made in the mode prescribed by law, and the defect alleged is lesion. Febrero, loco citato. The plaintiffs have not disputed the law, but insist, that the facts proved in this case do not bring them within its provisions, because they had no knowledge, that the property partaken had been given up by Goodwin. But I do not see how they can urge this with any success. The inventory states the property to be bought by Goodwin; so that the very instrument which informed them that they had any claim to this property, instructed them of the fact now ested. The sale from Gravier to their stepfather was passed before a notary, and remained in his office. The compromise was a public act; the proceedings had before the court of probates was matter of record. Under this proof, the plea of ignorance cannot be maintained. They further end, that the lots partaken by them were paid for by notes and obligations belonging to their mother; and that, therefore, they were her proper effects. But the authority referred to, does not support this position. It is only in the case where, during marriage, the proceeds arising from the sale of one immovable has been laid out in the purchase of another, that the object last acquired is considered as belonging to the owner of that which was sold. Febrero, par#2, lib#1, cap#4, sect#1, n#7.

On this point of tacit approbation, I think the whole question may be reduced to this; could the plaintiffs have legally taken the property purchased by Goodwin during marriage, and divided it, unless they did so in virtue of the compromise entered into by their tutor ?

I think not. Therefore, in acting as owners of it, we must consider those who were of age approved of the act by which their tutor acquired the property, and sanctioned the alienation of the lot claimed in the petition, which was given in its place. As there is not sufficient evidence as to the value of the improvements, nor by whom, nor at what time they were put on the lot, I think the cause ought to be remanded, in order to obtain evidence on that point, and that the question, as to the rents and profits, remain open until those facts are established. I conclude, therefore, that the judgment of the parish court should be annulled, avoided and reversed, and that the plaintiff, Antoine Chesneau, do recover of the defendant, the one-third of the lot claimed in the petition; and that this cause be remanded, with directions to the parish judge to permit the parties to proceed, in due course of law, to establish the value of the improvements made on the lot of ground sued for, and by whom they were placed there, and that the defendant and appellee pay the costs of this appeal. Martin, J.

I concur in this opinion. Mathews, J.

So do I. It is, therefore, ordered, adjudged and decreed, that the judgment of the parish court, should be annulled, avoided and reversed, and that the plaintiff, Antoine Chesneau, do recover of the defendant, the one-third of the lot claimed in the petition; and that this cause be remanded, with directions to the parish judge to permit the parties to proceed in due course of law, to establish the value of the improvements made on the lot of ground sued for, and by whom they were placed there, and that the defendant and appellees pay the costs of this appeal. Seghers, for the plaintiffs. Derbigny, for the defendant.^[5]

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June Term 1824, Chesneau v. Girod.

The minor may consider an illegal sale of his property by the guardian as a conversion to the latter's use, and demand the price with interest.

Parish Court of New Orleans. Martin, J., delivered the opinion of the court. The plaintiff states himself to be one of the three children and heirs of J. Chesneau and Susan his wife, who, after the death of her said husband, married Godwin; that the defendant was his guardian, and during his minority alienated a lot of ground in New Orleans, three slaves, and a horse, part of his father's estate, by a transaction with Godwin, on a settlement of the alleged rights of the plaintiff's mother; that, by a decision of the Supreme Court, Chesneau's Heirs v. Sadler, 10 Martin, the said transaction has been held null and void. He concludes with a prayer that he may recover from the defendant the interest of his share of the appraised value of the lot, from the date of the transaction until the judicial demand by the inception of the suit against Sadler, and his share of the appraised value of the slaves and horses, with interest from the date of the transaction. There is, further, a prayer for general relief. The general issue was pleaded. The plaintiff had judgment, and the defendant appealed. It is very clear that the defendant is not bound to pay interest on the plaintiff's share of the appraised value of the lot, for he did not receive the price of the lot, which the existing laws prohibited him from selling. If he received, or could have received, any money by the rent of the lot, he is accountable therefor; but the lot is alleged to be an unimproved one, and it is neither alleged or shown that it was susceptible of being made to produce any rent. The plaintiff is at liberty to consider the alienation of the negroes and horses (as it appears to have been illegally done) as a conversion of them to the use of the defendant, who is bound to pay the value, and, as guardian, must pay interest thereon. This amounts, as stated in the petition, and proved by the inventory, to 1284 dollars, 75 cents, exclusive of interest. It is, therefore, ordered, adjudged and decreed, that the judgment of the parish court lie annulled, avoided and reversed, and that the plaintiff do recover the said sum of 1284 dollars, 75 cents, with costs in the parish court, reserving to the defendant his claim against the plaintiff, for so much of Godwin's claim, due by the plaintiff, as may have been extinguished by the alienation of the slaves and horses; and it is ordered that the plaintiff pay costs in this court. Seghers, for the plaintiff. Mazureau, for the defendant. ^[6]

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March Term 1825, Goodwin v. Heirs of Chesneau.

Bills of exceptions cannot be taken to final judgments. A judgment of eviction cannot be pleaded as res judicata against a claim of the vendee for damages. Transaction may include partition, as partition includes alienation and sale. The same rules which govern partitions, strictly such, do not apply to every act by which the community of property is destroyed. It is a fiction of law to prevent lesion, that all acts which put an end to the community of property are to be regarded as partitions. A ract by which the step-father renounces all right to his wife's estate on receiving specific property, is not a partition. If one of the parties to a ract of exchange be evicted, he may sue for damages or the thing he gave, and if it be a minor who evicts him, he must restore the object received, if in his possession. The first vendor may be sued in warranty, by his immediate vendee, upon the person, to whom the vendee sold, being evicted, unless the first vendee alienates without warranty. Court of Probates of New Orleans. Porter, J., delivered the opinion of the court. This suit appears to have grown out of the decision of this court in the case of the Heirs of Chesneau v. Sadler. That was an action in which the plaintiffs claimed certain property descended to them from their mother, and which their tutor had alienated rary to law. The defendant set up title to it under the plaintiff in this case, and cited him in warranty. The judgment of the court was in favor of one of the petitioners, and against the other two, on the ground that they had, after coming of age, ratified the act of their tutor. 10 Martin, 726. The petition in the present case recites at length the proceedings, and avers:That the plaintiff was entitled as devisee, under the will of the mother of the present defendants to a large portion of her property; that he and their tutor, Girod, entered into a transaction, or amicable compromise, in regard to the rights accruing to him under the testament; and that he never would have made such agreement or transaction, had he not believed the same to be a final settlement with all the heirs of his deceased wife. That inasmuch as the said transaction has not been executed in the manner intended, and the same has been declared illegal and void in part, at the suit of one of the heirs, whom the tutor represented, it is null and void as to all the parties thereto. It concludes by a prayer, that the petitioner be reinstated in all his former rights and claims relinquished in said transaction, as if the same had never taken place; that there may be a liquidation, settlement and partition of the property in community, between the petitioner and the heirs of the deceased's wife, and that he have such other and further relief as his case may entitle him to. To this petition the defendants pleaded:

1. That the plaintiff could not maintain this action, because he had no interest in the cause, having received full compensation from the defendants' tutor for all claims against the succession of their mother.
2. That all the facts and allegations in the plaintiff's petition are untrue.
3. That the will under which he claims is null and void.
4. That if the petitioner be entitled to any thing, it is only his share in the profits which might have resulted from the community with his deceased wife, but which profits the defendants deny to have ever existed. To these means of defence were subsequently added the pleas of res judicata, and prescription. The court of probates was of opinion that all the matters and things in dispute between the present parties, had been decided in the case of the Heirs of Chesneau v. Sadler, and gave judgment in favor of the defendants, as in case of nonsuit. From this judgment the plaintiff appealed. There are no less than five bills of exceptions on the record to the final judgment of the court, two of them are to conclusions drawn from different parts of the testimony, which the judge on signing, declares he never took into his consideration, nor had formed any opinion upon. Bills of exceptions, it is well known, do not lie to final judgments, and we notice these, only to express our disapprobation of the irregularity, and our hope that it will not again occur. The first plea of the defendants, that the plaintiff has no cause of action against them, cannot be correctly examined, until an inquiry is gone into, in relation to the original ract between the tutor of the defendants and the petitioner:and the rights which accrued to the latter from one of the heirs having sued and recovered part of the property conveyed in it. That of res judicata needs no such previous examination, and its validity is the first question for our consideration. This court is unable to discover any, the slightest ground in support of the decision of that of the first instance, that the matters and things now at issue in this cause, were decided in the case of the Heirs of Chesneau v. Sadler. There, the plaintiffs sued for certain property, which they claimed in right of their mother, deceased. The defendant called in warranty, the plaintiff in this suit, who supported the title of his vendee, by relying on the transaction with the tutor, and citing him to defend the property conveyed to him. The judgment of the court was, that the title was insufficient to prevent one of the plaintiffs from recovering. Here the plaintiff alleges, that in consequence of this judgment, by which his vendee was evicted, the whole transaction is rendered null and void, that he is thrown back on rights existing anterior to that transaction; and which rights, though not offering a defence to the claim for the property, enable him in turn, to demand a partition of the whole succession of his deceased wife. Instead, therefore, of the matters and things now ested between these parties, having been decided by that suit, they were in truth created by it, and if the present action has any grounds of support, they grow out of the judgment in that case. This is so manifest in respect to the heir who succeeded in that action, that the point was not much debated by the appellees' counsel; but he urged that the plea, applied at least, to the two defendants who failed in their attempt to recover the property. For this position we see no more foundation, than that just disposed of. It may be true, that the judgment in that case has not furnished the plaintiff with a cause of action against the defendants, but it is clear that the object of this action, and the matters involved in it, are quite distinct from those ested in the former suit. Whether the plaintiff might not have set up, when cited in warranty, the same claims which he does now, need not be inquired into. The fact is, he did not do so, and that is sufficient to prevent him being barred by the judgment there rendered, as the matters and things now ested, were not necessarily embraced by it. The plaintiff rests his claim to a partition of the whole of the estate of his late wife, upon the ground, that the act under which he claimed the property, being a partition of the estate in community, between him and his co-heir, it follows, that if annulled as to one, it is void to all the parties who concurred therein. For the better understanding of the different questions raised in this case, it is necessary to set out the material parts of the act under which the present plaintiff acquired the property, from which his vendee was evicted; and state some of the circumstances that led to its execution. The mother of the defendants, by last will and testament, gave to her husband, the present plaintiff, the usufruct of one-fifth of all the property owned by her at her death. After her decease, difficulties arose between the tutor of her children, and the plaintiff, in relation to his rights, under the will, and a claim which he set up for acquests and gains, made during marriage. These difficulties ended by the parties entering into an agreement, by which the plaintiff waived certain property, and abandoned all claims to the succession. The act which evidences this agreement, purports to be executed by Jean Goodwin, of the one part, and Nicholas Girod, tutor to the children of Jean Chesneau, of the other. It states that the parties, to avoid all kinds of dispute which might arise between them, in relation to the partition of the succession of Mrs. Susan Drouet, widow of Jean Chesneau, deceased, had entered into the following agreement: That the said tutor abandoned to the said Goodwin certain property therein mentioned. That in consequence thereof Goodwin abandoned purely and simply (fait l'abandon pur et simple) all and singular the pretensions which he might have on the succession of the deceased Susan Drouet his wife, such as acquests, and legacies, which might have been conferred on him by the testament, and agrees that the said Girod in his quality aforesaid, should take possession of all the property which belonged to the succession. This act is said to be a partition and not a transaction. Whether the former be included in it or not we will hereafter examine; but that it is at all events the latter, there cannot be a doubt; rights are claimed by one party; difficulties with regard to giving them effect feared by both; property delivered to procure an abandonment of them; and that abandonment made. Our Code defines a transaction, an agreement by which two, or more persons, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent. It is unnecessary, we conceive, to go into any reasoning to show, that the ract here submitted to us, is most clearly within the meaning of this provision; or that the plaintiff himself has committed no error in denominating it a transaction, in the sale which he made of the property, in the pleadings in the former suit, and in the repeated annunciation of it as such, in the petition filed in this cause. But notwithstanding this is the true character of the act; it does not follow that it may not also have operated a division of the succession. Transaction may embrace partition, as partition includes alienation and sale. Civil Code, 186, art. 162.

But whether this act include partition, strictly such, may well be doubted. It seems to want all the characters of one. It was clear the parties did not emplate it to be such. They expressly declare the agreement is entered into to avoid the difficulty of partition. Common effects are not divided. On the rary the husband receives in full property that in which he could only have had a usufruct, and he is discharged from the payment of all debts due by the succession. In one point of view indeed the act may be considered as a partition, and that is, as terminating the indivision of property which existed between the parties; not by separating the things of the estate, but by dissevering the right which existed in them. Every act which produces that effect, whether it be sale, exchange, or donation, must be considered such; indeed this must necessarily be the case, otherwise the property would still be in common, and subject to division. It is in this sense the court understands the elementary principle of our law, that the right to partition cannot be renounced; and it was for the reason just stated, and in order to prevent an evasion of the rules in respect to lesion which governs transactions of this kind; that a fiction was introduced, that all acts which put an end to the community of property existing between parties, no matter of what nature those acts are, or by what name called, are regarded as partitions. Civil Code, 186, 159. Chabaud on Successions v3, 704; Toullier, Droit Civil Français, lib#3, tit#1, chap#6 #577.

But it does not follow that the same rules which govern partitions, really such, apply to every act by which the community of property is destroyed. Our Code furnishes us, with express authority to the rary. In ordinary partitions, it suffices to cause rescission that there be lesion of more than one-fourth part of the true value of the things partaken. But if this partition is affected through a transaction, or by the sale of the rights of one co-heir to another, the ract cannot be rescinded for this cause. Civil Code, 206, art. 253, 254.

Yet in the case last put, there is clearly, in fiction of law, a partition; that is, the community of property is destroyed. The rule then, we see, has its exceptions; and it is not correct to say, that in all cases, where the community is dissolved, the principles which govern partitions, must regulate the ract of the parties. On the rary, we conceive that unless the provisions of the law, in respect to lesion be violated; agreements, by which the right of one heir in a succession, are transferred to another heir, or to a third party, must be governed by the rules applicable to that species of ract, by which the transfer is made; whether it be sale, exchange, donation, or in any other mode. The question is in some measure novel, but we are not without authority on it. We have the judicial exposition of laws, which are verbatim the same as ours. One of the heirs to a succession opened in France, sold his right in it to a co-heir, who failed to pay the price. On the former attempting to enforce the ract as one of sale, an objection was made that it was subject to the rules which regulate partitions. The court held that the act was one of sale; that no other character could be assigned to it. It united all the characters. Res, pretium, et consensus. That the rule which prescribes that all acts tending to destroy the community are regarded as partitions, was a fiction introduced to prevent lesion. That it was a principle, that fictions in law did not extend beyond the particular cases for which they were established, and that for all other purposes the ract must be governed by the ordinary rules. Journal du Palais v2, 1812, 530; Manuel du Droit Français, 296:in note. Code Napoleon, 887, 888.

In the instance now before us, unless we shut our eyes on truth, and indulge in fiction, we cannot mistake the real character of the act on which this difficulty has arisen. So far from it being a partition of property held in common, it ains an abandonment of all right to it; objects which belonged to the heirs, and on which the step-father had only the usufruct for life, are given to him in full property. In consideration for the property thus received, and in consequence of being released from the payment of the debts due by the community, he renounces all rights which he had to the acquests and gains made during marriage, and those which he might possess under the will of his wife. In such an agreement, we look in vain for that act, which our Code speaks of, when it defines a partition to be "the separation, division, or distribution of a thing common to several co-proprietors or co-heirs, who enjoyed the same undividedly." Civil Code, 184, art. 157.

On the rary, it appears to us, an acquisition on the part of the plaintiff, of property belonging to others, and for which he gave his rights on a succession in return. Such agreement formed a ract of exchange, which is defined to be, where "the ractors give to one another, one thing for another, whatever it be, except money." Civil Code, 370, 1.

In case of eviction, the party evicted has his choice, either to sue for damages, or for the thing he gave in exchange. If that thing be still in the possession of the minor, by whom he was evicted, the plaintiff has the right to get it back. Civil Code, 370, 4.

And this brings us to an exception, made in an early stage of the proceedings, that the plaintiff had no cause of action, the right being vested in Sadler, the vendee of the plaintiff who was evicted by the judgment which has given rise to this action. The only ground which the court can imagine this objection to rest on, is, that as the plaintiff has not shown that he has paid Sadler, he has suffered as yet no injury from the eviction of which he complains; or in other words, that no cause of action arises in favor of the first vendee, by the person to whom he sold being evicted, until it is shown the latter has exercised his action of warranty, and recovered. This objection, (which on the first consideration, appeared to be supported by analogies drawn from the rights of persons, standing in some respects, in the same situation with the plaintiff.) cannot be maintained. By the warranty, the vendor racted, not only that the vendee should not be evicted, but that all other persons who held under the buyer, should enjoy the thing. There is an exception to this rule, where the first vendee alienates without warranty. Because he is then without any interest whatever in the matter. But in every other case his right of action is complete, the moment the person to whom he sold loses it by a superior title. Dig. liv#21, tit#2,1. 61, 71; Pothier, Traité du Vente, #97. The other questions raised in argument, belong to the merits; and as the cause is not now in a situation in which final judgment can be given here, no opinion can be expressed on them. It is, therefore, ordered, adjudged and decreed, that the judgment of the probate court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that this cause be remanded to the court of probates, to be proceeded on according to law, the appellees paying the costs of this appeal.

Watts and Lobdell, for the plaintiff. Seghers and Appé, for the defendants. ^[7]

Sources

1. ↑ Stanley Clisby Arthur, Old New Orleans: A History of the Vieux Carre, Its Ancient and Historical Buildings (Westminster, Maryland: Heritage Books Inc., reprint 2007) pp. 206, 207 for Chesneau Mansion at 533 St.Louis Street.
2. ↑ Jim Frasier and West Freeman, The French Quarter of New Orleans, (Oxford, MS: University Press of Mississippi, 2003) citing "La Nueva Orleans" pp. 35, 37.
3. ↑ Historic Map Works Publication
4. ↑ Vieux Carré Commission Evaluation lot#18449 #9, 531-533 St. Louis Street; Square: 27.
5. ↑ Condensed Reports of Cases in the Superior Court of the Territory of Orleans, and in the Supreme Court of Louisiana & published in 1839 by E. Johns & Co., Stationers' Hall of New Orleans, Louisiana; v2 p110-116 Eastern District, February Term 1822, Chesneau's Heirs v. Sadler. X. 726.
6. ↑ Condensed Reports of Cases in the Superior Court of the Territory of Orleans and in the Supreme Court of Louisiana & published in 1839 by E. Johns & Co., Stationers' Hall of New Orelans, Louisiana; v2 p757-758 Eastern District, June Term 1824, Chesneau v. Girod. II, N. S. 612.
7. ↑ Condensed Reports of Cases in the Superior Court of the Territory of Orleans and in the Supreme Court of Louisiana & published in 1839 by E. Johns & Co., Stationers' Hall of New Orelans, Louisiana;