James Moore Wayne

“ Resuming the inspection of the Louisiana record, (to which, for the present, we are confining ourselves,) from the time the decree of the appellate tribunal was filed in the District Court in November, 1845, nothing appears which has the remotest relation to an eviction, until 1853-the intervening minutes showing no more than that the suit was still pending in the District Court, revived in the name of the 'legal representatives' of the deceased defendant, Mulhollan. ”

“ On the 30th May, 1853, the present plaintiff, with his now deceased co-plaintiff, for the first time appear in the cause, make themselves parties in their capacity as 'heirs and universal legatees' of the original defendant, adopt his answers and defences, and ask for judgment over against the warrantors, in case judgment be rendered in favor of plaintiffs. ”

“ By it, the warrantor is formally vouched or cited in to defend his vendee's title, as soon as proceedings are commenced against the latter. If the seller thus called in cannot defend, 'the judge condemns him to indemnify the defendant, by the same sentence by which he pronounces in favor of the original plaintiff.'
In this from of proceeding, the cause of action may be said to arise as soon as the vendee is troubled in his possession by a suit, for at that moment his right to call in his vendor in warranty accrues. ”

“ But it does not connect this date in any manner with the previons recital of the purchase; and it would be a violent construction, certainly, which should force such a connection, independent of any extrinsic information. And it is to be borne in mind, that we are now considering the case upon the record evidence alone.
Nor is it for us to supply the omission caused by the silence of the record with respect to time. It is for the defendant, who relies upon limitations, to show that we are barred. ”

“ II. The judgment of the District Court of the State of Louisiana, in favor of Charles H. Flowers and Alice Flowers against Christopher Keller and Francis Foreman, for $850, with interest from the 14th of November, 1846, the date of the payment by Mulhollan's executor, is void, the court below having no jurisdiction in the case, the defendants never having been served with process, and never having had notice or knowledge of the case. The judgment against Keller is by a wrong name. ”

“ 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 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 therefore more than three years had elapsed before the bringing of this action on the 3d of November, 1855, and the claim is barred by the acts of limitation of the State of Maryland of 1715, ch. 23, sec. 2, and 1818, ch. 216, sec. 1. ”