In a small tenement situated on the Metairie road, in the adjoining.parish of Jefferson, have dwelt for such a length of time as the memory of man scarcely runs to the contrary, a black woman, at the time the transactions involved in this controversy bear date, over eighty years of age, her two sons and her daughter, all, at this period, much advanced in life. Not one of them can either read or write, and they are remarkable, even among their race, for want of intelligence, and ignorance of the world and its ways. They cultivate, for marketing, a small field of vegetables, out of the proceeds of which they contrive to live. When they lose an ox, they find great difficulty in raising the means necessary to replace it.
On the 28th April, 1837, Le Carpentier, a young man about twenty years of age, and lately arrived from France, came to their house in company with one Emerhng, a property broker, and asked them to affix their ordinary marks to some notes made payable in solido, and also to a deed, purporting to be a notarial act before Theodore Seghers, a notary public in and for the city of New Orleans. They did as they were asked. Le Carpentier brought back the act and notes to the office of Seghers, designated to one of the clerks the marks of each of the plaintiffs, and their names were written around them by that clerk, in presence of Le Carpentier. ' Both signed as witnesses; and the notary, in wanton disregard of his duty and of his oath, authenticated the act as passed before him.
That act is, on the face of it, a conveyance of real estate by the defendant to the plaintiffs, in consideration of the sum of $13,400, for which it states notes in solido, made payable by the plaintiffs to the order of F. Hazeur, to have been given, and to have been secured by mortgage on the property sold, and also on the homestead of the plaintiffs.
The first note was protested at maturity for non-payment, and the defendant caused the property sold by him to the plaintiffs to be seized under the mortgage. It was adjudicated to a third person for $7,000.
The second note was also protested at maturity for non-payment, and the defendant obtained against the property of the plaintiffs another order of seizure, which was subsequently converted into an ordinary suit.
The plaintiffs, alleging error', fraud and deception, on the part of the defendant and his agent, and also that the act, under which he claimed, was null and void, because their marks had not been affixed thereto in presence of the notary, or in his office, applied for, and obtained an injunction. They called on the defenddant to answer on oath various interrogatories, which he answered; he further denied all their allegations, and averred the transaction to have been, on his part, fair and unsullied by deception or fraud.
Six juries have been sworn to try that issue. The first four were unable to agree on a verdict; the fifth found a verdict for the defendant. Judgment went in his favor, and, on appeal, it was reversed, and the case remanded on bills of exception. On the last trial, the jury again gave a verdict ict favor of the defendant, and the plaintiffs have appealed from the judgment rendered thereon.
We agree fully with the counsel of the defendant that, as a general rule, after two verdicts on an issue of fraud, the court ought not to interfere, unless those verdicts are manifestly contrary to law and evidence; but we must premise that this is a case, in which the arbitration of the jury has not as much weight with us as it would have if the parties to the suit were of equal condition.
*48The excellence and safety of jury trials consist in the fact, that the jurors are, or ought to be, the peers and equals of the parties. Juries de medietafe lingua, and the frequent resort to special juries originate, to a great extent, in the policy of preserving that equality. In this controversy, the case of the plaintiff's was not tried by their peers and equals, and the fact that, the first verdict gave the defendant a much larger sum than he claimed, and compelled him to enter a remittitur, affords strong evidence that this jury, at least, did not weigh the rights of the plaintiffs with the care required to give authority to their decision. It is our duty to shield the legal rights of the plaintiffs from the prejudices of cast; and we deem their dependent condition sufficient to put us upon inquiry, whether impartial justice has been done to them?
The defendant admits that the act under which he claims is not authentic. The plaintiffs, on the other hand, have acknowledged that they affixed their marks to it and to the notes. Does that acknowledgment, taken in connexion with the facts disclosed by the defendant’s evidence, prove any thing more than rem ipsam? Does it prove the act — does it establish the fact that the plaintiffs purchased the house and lot from him, and gave him, in payment, their notes, in solido, for $13,400, secured by mortgage on the property sold, and on their homestead ?
Whoever claims the price under a contract of sale must show affirmatively the consent of the purchaser to the contract. If the acknowledgement of the plaintiffs, that they affixed their marks to the act and notes, proves their consent, the defendant should have stopped there, and rested that part of his case upon the written evidence. Had he done so, the naked question of the legal effect of the acknowledgement would have been fairly placed before us. Ho has seen fit to adopt a different course; he has gone beyond the act, and, by introducing parol evidence, to prove en pais the fact of consent, he has, as it were, dissolved the contract into its original elements. Although a party may object to the introduction of parol evidence to prove the transfer of real estate, if it is admitted without opposition, it is binding upon him; a fortiori, is it binding upon the party who himself introduces it.
Emerling and Le Carpentier were the only persons present when the plaintiffs made their marks. Le Carpentier read the documents to them, and Emerling swears that there was no explanation given them, hut by him. His testimony is as follows: He explained the act to them, and they appeared to understand it very well. It does not appear that he mentioned the object of the notes to them. Cross-examined, he says, he asked them if they understood, and knew what they were about. They all answered distinctly that they did. He is a German, has been in Louisiana seven or eight years, speaks .French well enough to make himself understood, and spoke to the plaintiffs in that language.
The first objection to this evidence is, that the plaintiffs speak no language save the creole patois, which is not, that we are §iware, taught in German universities.
Several witnesses gave it as their opinion that Emerling could not have made himself intelligible to them, and that it is impossible he could have made them understand what a mortgage was; and, by-the-by, he is the only witness who testifies that they consented to the mortgage under which the defendant now claims. The testimony of A. S. Lewis, the officer of the court who went to their house to get them to sign the affidavit and the injunction bond in this case, satisfies ns that no faith is to bo given to that of Emerling. This witness on*49deavored three, or four, different times to explain to them the purport of the oath and of the bond, and doubts whether they understood him then. He spoke the creole patois to them, and could not get them to understand French. They appeared to him as ignorant as they could well be, and there was no pretention of ignorance about them. Two other persons, there present, had to assist him in his explanations.
Emerling had the property for sale for the defendant as his broker, and received two per cent commission, for the sale of it to the plaintiffs. He has shown himself not over scrupulous, and we have no reason to doubt that he has placed the defendant’s rights in the most favorable light, consistent with such a regard for truth as may fit the standard of his morality; but it appears to us that his knowledge of the language of the plaintiffs and of the laws of Louisiana, was inadequate to the task he undertook to perform; and the facts disclosed by his evidence induce the belief that, if it had not been, he would not have cared to teach the plaintiffs what a mortgage was, and in how short a time it could divest them of their home, but would have been content to make up a plausible story and secure his commission.
While acting as broker for the defendant, he made with the plaintiffs a secret bargain, by which he was to receive two per cent commission from them to betray his employer. After the purchase he took possession of the property, worth a rent of $40 per month, without any authorization from the plaintiffs, and kept it one year to pay himself a commission of two per cent on $13,200. Subsequently he called upon the plaintiffs, and, instead of accounting to them, insisted upon being paid his commission a second time. No other witness, save Le Carpentier, knows any thing about the sale and mortgage. The fact that the plaintiffs were decoyed by a brace of swindlers to go and visit the house, cannot surely be taken as proof of the subsequent purchase; and the other fact, that they appeared to those who occupied the house not more stupid than negroes generally are, cannot stand in opposition to the testimony of the officer of the court, who, in discharge of his duty, had to test their intelligence.
Had the notary himself been present, and had he testified in the cause as Emerling has done, the trust reposed in him ,by law in matters of that kind, would have rendered his evidence sufficient.
It may be that the only object of the defendant in introducing the evidence of Emerling, was to disprove fraud; but if it discloses a state of facts inconsistent with the hypothesis of consent on the part of the plaintiffs, one of the essential requisites of the contract is wanting, and the mechanical operation of holding the pen while the marks were being made, cannot supply it. It is said that parties affixing their ordinary marks to an act are bound to know, and must be presumed to have known, the contents of it; but we are of opinion that this presumption is not juris et de jure, and that it does not exist where the party claiming adversely to them under the act, shows that they had not the means of knowledge.
We believe that the jury did not take this view of the case, and that, being satisfied that the defendant himself had not committed the fraud alleged against him, they considered themselves bound to decide in his favor. They probably overlooked the fact that, through'the acts or omissions of his agent, the sale might be void for want of consent, although no moral guilt could attach to him.
The inference that the price bargained for was not exorbitant a.t the time, drawn from the fact that some months previous to the sale, a bid of over $12,000 *50was offered at public auction for the property, was well calculated to mislead the jury. The sudden change which took place in the value and availability of real estate in the months of March and April of that year, is an historical fact which does not appear to have been noticed. The ignorance and seclusion of the plaintiffs prevented their being apprized of the change, and they were probably the only persons living, having any thing to lose, who could have been induced to make the purchase at that time. The fact that they did make it, must, therefore, be placed beyond the reach of doubt. With men as well informed as the defendant, the operation would have been all fair; but we are not prepared to say that it was so, with a superanuated negro woman, brought into the vortex of speculation at that late hour by the arts of such men as liazeur and Emerling.
The defendant is not shown to have had any participation in bringing about the sale, but the acts of Emerling accrued to his benefit.
If the mother were the only party to the contract, the court would have no hesitation in remanding the cause. The fact that her sons and her daughter are bound in solido with her, and would be deprived by the judgment of the means of supporting her, does not the less entitle her to relief.
After a long, patient and thorough investigation of this cause, a majority of the court have come to the conclusion that justice requires that it should be remanded, and submitted to another jury.
It is therefore ordered, that the judgment be reversed, and'the case remanded to be proceeded in according to law; the defendant and appellee paying the costs of this appeal.