Robert Cooper Grier

“ And as conclusive proof, that the doctrine of release and remission aplies only to debts and personal obligations, the Civil Code requires 'an act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property, of slaves or incorporate things, such as rents, credits, rights, or actions, under the penalty of nullity.' Art. 1523, 1525.' A donation inter vivos, even of movable effects, will not be valid unless an act be passed of the same, as is before prescribed. ”

“ The modern cases, in which executory agreements, in favor of children and other relatives, though voluntary, have been enforced, besides being, some of them, of questionable authority, all proceed on the ground that such agreements being made for the benefit of persons for whom the party was bound to provide, are founded on a consideration, meritorious, though not on a valuable, and are, therefore, inapplicable to the present case. ”

“ Used for either object it must be a deed, under seal, the seal importing a consideration, conclusive at law, except for fraud. If not under seal, though upon valuable consideration, it fails as an instrument to convey title to and. But if without seal, and without consideration in fact, it is void, and no proof of purpose or intention can sustain it.
In the civil law system, the release is utterly unknown as a technical instrument of conveying or relinquishing a right or title in land. In this system, its more accurate name is remission ”

“ But as the merits of the case, when extricated from the mass of matter with which it is enveloped, depend on the application of undisputed principles and axioms of the law, to a few leading facts, it will not be necessary that our statement of it should be proportionally voluminous. ”

“ Art. 1792, 1794, 2431, 2439. And such sale implies that the vendor, and not the vendee, was the owner. Art. 2481.
Now, the reverse of all these qualifications to a sale are either proved, or averred and admitted by the defendant in this case. As to ownership, for instance, defendant claims to have been sole owner since 18th January, 1825. Ans. p. 58.
Of the legal title, as distinguished in equity, this is literally true, as he has held this from date of purchase in 1821. But defendant means the relinquishment of Dorsey's equitable contingent interest. ”

“ Upon the hearing in the Circuit Court, the bill was dismissed, and Dorsey appealed to this court.
It was argued by Mr. Henderson for the appellant, and Mr. Butler for the appellee.
Mr. Henderson, for the appellant, filed an elaborate argument, consisting of upwards of one hundred pages, in which he examined the grounds upon which Dorsey's claim was resisted.
He said, our claim is chiefly resisted on three grounds.
1. That the agreement is void for want of valuable cause or consideration.
2. If ever valid, the right has been abandoned by complainant. ”

“ And this is also shown by the manuscript record in this case (p. 340, 342) of Packwood v. Heirs of Alice Packwood, and the decisions of the court there pronounced and decided; also, (9 Rob. (La.) , 416) , that the right acquired to vest estate by an accepted bid at auction, is such a title as the purchaser could not relinquish by parol agreement, but a retrocession in writing must be made. Art. 2415, 2586. And Dorsey's rights, vested by agreement of 1821, could not require less than a like retrocession, with cause and description of property relinquished. ”

“ Domat, Liv. 1, tit. 8, § 2, art. 12; Pothier, Trait e du Contract de Soci et e, ch. 1, § 3, art. 8; Story on Partnership, §§ 8, 15.
2. It is a donation, because nothing is given or promised by Dorsey; and as such it is void, because not in the form required by the law of Louisiana. Old Civil Code of Louisiana, p. 208, arts. 1, 2, pp. 218, 219; arts. 43, 52,; pp. 220, 221; arts. 53, 65.
Thirdly. The agreement was without consideration or mutuality; and Courts of Equity will not decree specific performance of such agreements.
1. The agreement on the part of Packwood, was wholly gratuitous. ”

“ From this time at least, if not from the beginning, Packwood held the title in trust, as to one half, for Dorsey. 1 Sch. & L., 214, 226, 227; 7 Mart. (La.) Rep., 244; 10 La., 420.
And courts of the United States uniformly distinguish legal from equitable titles in Louisiana, as elsewhere. 3 How., 512, 514, 515. It is especially so of a trust which results from fraud. 2 Id., 650; 10 La., 420.
The contract to sell on a suspensive condition, when the condition is performed, becomes equivalent to a contract to sell without a condition. And the latter contract, in Louisiana, is a sale. Old Code, p. ”