ERROR to the Circuit Court of the United States for the District of Louisiana.
This was an action for the recovery of certain real property, described in the petition of the plaintiff, situated in the city of New Orleans, and of the rents and profits. The plaintiff claimed title to the premises by a conveyance from his father, Charles M.Conrad, made to himself and his brother on the 6th of May, 1862, and a subsequent conveyance to himself of his brother's interest. The conveyance of the father was made in settlement and discharge of certain obligations resting upon him under the laws of Louisiana, by reason of his having received, as the natural tutor of his children, property belonging to them as minor heirs of their deceased mother. It appears from the record that she died intestate, at New Orleans, in 1839, leaving the plaintiff and his brother her only heirs, and an estate valued at a sum over $35,000. The estate consisted principally of her separate property; a small portion was her share of the real property belonging to the matrimonial community. The surviving husband qualified, and was confirmed as the natural tutor of the children, and took charge of their property. The law of Louisiana imposes a general mortgage upon all the property of a tutor, to secure the interests of minors and his faithful execution of the trust, but gives him the right to substitute in place of it a special mortgage upon particular parcels of his property. The tutor here availed himself of this right at different times. The last special mortgage was executed in 1847, and, with other property, covered the premises in controversy. Previously to this, and in 1845, his indebtedness to his sons had bee ascertained, and fixed by decree of the Probate Court at the sum of $36,757. This amount was subsequently increased.
No account of his administration was ever rendered by the tutor until May 6, 1862, when a settlement took place between him and his sons; and, in discharge of his obligations to them, he executed, before the recorder and ex-officio notary-public of the parish of St. Helena, a public act of sale, by which he sold and conveyed to them several lots situated in New Orleans, and among them the one in controversy in this case. This act of sale, which purports to have been recorded in the city of New Orleans on the 31st of the same month, the court refused to admit in evidence.
The defendant, Waples, in his answer, asserted title to the premises in controversy, under a deed to him by the marshal of the United States, executed in March, 1865, upon a sale under a decree of the District Court, rendered in February of that year, condemning and forfeiting the property to the United States, as that of Charles M. Conrad, in proceedings taken under the Confiscation Act of July 17, 1862. The other defendants disclaimed title.