Same Case — On a Re-hearing.
Eustis, C. J.,for the reasons assigned in the dissenting opinion pronounced by him on the first hearing, was of opinion that the judgment below should be affirmed. '
Rost, J.persisted in the opinion just pronounced by him, adding :
The appellate jurisdiction of this .court extends to facts as well as law; it is our duty, therefore, to preserve the purity of the sources from which the knowledge of facts is derived, and this case requires our action in that behalf.
The main witness introduced by the defendant to disprove fraud, has shown himself to be corrupt and unworthy of belief. His testimony taken at different ■times, is contradictory and inconsistent with that of other witnesses of known good character. The deplorable fact that two verdicts have been rendered in conformity with it, increases the enormity of the offence, but cannot legalize it.
It is nothing to me tlxat the jury may have thought differently of this witness. In passing upon testimony of any kind, I claim the right of private judgment. I will not receive as true, on the faith of others, evidence which I firmly believe to be false.
I admit that I do not know what influence it had upon the jury, nor that the verdict would not have been the same without it; but it is sufficient for the position I take, that it was heard in the trial of the cause, and that it soils now the records of the court.
We have heretefore met all such exhibitions of depravity, in a manner that makes it the interest of parties litigant to avoid having recourse to them. I consider the decree about .to be rendered as an unfortunate deviation from that salutary and fruit-bearing course.
I am of opinion that the 'judgment ought to be reversed, and the case remanded for further proceedings.
Kino, J.After a careful consideration of the evidence in this cause, I have been unable to convince myself that it supports the verdict of the jury. The difficulties of the case grow out of questions of fact, depending on the weight of testimony and credibility of witnesses. In such cases great respect is due to *54the verdicts of juries. Their decisions, however, on matters of fact as well as of law, have been expressly subjected to revision; and, in the exercise of that jurisdiction imposed on this court, cases most occasionally present themselves in which the mind refuses its assent to the conclusions' at which juries may have arrived.
In such cases, there can be no laesitatation between duty and the deference due to the findings of juries.
The facts and reasons which repel the conclusion that the plaintiffs assented to the sale, or were aware that they were becoming purchasers, have been so fully stated in the opinion road by the judge (Rost) with whom I concur, that it is unnecessary again to repeat them.
I think that the judgment of the inferior court ought to be reversed, and the cause remanded for further proceedings.
Slidell, J.This case has already been before the Supreme Court, and was remanded for .a new:trial. The reportas in 3d Robinson, page 345 ; the pleadings are there stated.
The act of sale was manifestly not an authentic act, and this the counsel of Furst concedes. Can it avail as an act under private signature ?
This act was not signed by the plaintiffs ; not knowing how to write, they affixed their marks. It is said that a sale of immovables cannot be thus made ; that the Code recognizes the substitution of a mark for a signature only in acts passed before a notary and two witnesses ; that an act not notarial requires the signature of the party. Upon the general question, I express no opinion. But in this case the parties, under oath, in their petition for an injunction of the judicial sale, and in which also they pray that this act of sale and mortgage may be rescinded and cancelled as null and void, have acknowledged that they did affix their marks to this act, and to the notes held by Furst. 'The will of a party is manifested by affixing a mark, as well as by signing his name. The argument upon the impolicy of binding the rights of the ignorant, upon proof by witnessses, that the ignorant party .affixed his mark, fails in a case where the party himself solemnly, in a judicial proceeding, acknowledges the mark. A mark wants the individualizing characteristics of a signature, and perjury has a wider and safer scope in the one case than'in the other; but there can be no vestige of doubt of the genuineness of the mark, when the party himself judicially and under oath acknowledges it.
This brings us then to the true enquiry in this cause. Has the fraud alleged by the plaintiffs been committed? The allegation in their petition is, “that the act of mortgage, and the .notes or note on which said order of seizure and sale has been granted, are absolutely null and void, and cannot be legally enforced againstyour petitioners ortheir said property, but the same ought to be rescinded, cancelled and annulled, because the mortgage and notes have been obtained from your petitioners by the fraud, artifice and deception of Fame Hazeur, a free man of color, acting as:agent, and at the instance, of said Furst.” Again, going into more minute detail, they say: “ The said acts and notes are void, because your petitioners were led into error by said Hazeur as to the nature of the said contract, the said Fame Hazeur acting as agent of said Furst, and, by and with his knowledge and consent, as your petitioners are informed and verily believe, persuaded your petitioners that said Furst, or some one else, was buying their said tract of land at the price of $60,000, or at a very large price, and that said act of mortgage was their act of sale of their said tract, and not .as it *55really is, an act of purchase and mortgage on their part. Your petitioners are ignorant and unfortunate persons, not knowing how to read or write; said acts and said notes were never read nor explained to them, nor understood by them; they were constantly told by said Iiazeur, agent of said Fwrsi, that they were selling, at an immense price, their said .tract of land, and that they must sign said act and said notes, to complete their sale, and realize an enormous fortune, all of which they believed.”
So in their first petition they say “they did affix their marks to said papers, through error.” &c.
The question then is, not whether the plaintiffs executed this act and these notes, but whether the fraud alleged has been practised, whereby they, believing themselves sellers, are in reality purchasers and mortgagors?
The duty of the court, in this case, is not free from difficulty. If I had not before me the verdicts of two juries, by which twenty four citizens have, under oath, unanimously declared that this alleged fraud has not been committed, I might, perhaps, have yielded to the views of two of my brethren, for whose opinions I entertain a very great respect, and have consented to the remanding of this cause for a new trial. But great consideration is due to those verdicts. This cause, as stated by the Chief Justice, turns mainly on questions of fact; and it has been the settled jurisprudence of the Supreme Court of this State, since its earliest existence, not to disturb the verdict of a jury in cases of fraud, unless manifestly erroneous.
Here are two verdicts in favor of Fwrst. The previous verdict was disturbed by our predecessors upon a purely technical ground, to wit, that the plaintiffs in injunction had the right of opening and closing the cause before the jury, and that the district judge had deprived them of that right. Both these verdicts were, on motions for new trials, approved by the district judge. To the opinion of the district judge, twice expressed, is added the opinion of the Chief Justice.
It is said, by two of my brethren, that the plaintiffs have not had a trial before their peers, and that it is'the duty of the court to shield them from the prejudices of caste. We must take the law of jury trial as we find it. If this cause be sent back, it will be tried again by a jury of white men; and if the argument be a sound one, a new reversal should follow for the same reason. If it can be said that, under our social organization and the provisions of our laws, the trial by jury between the white and colored man is unequal, and the latter must seek protection from the judiciary, it must be remembered, in this case, that the inequality is of the plaintiffs’ own seeking, and that the protection was not originally invoked. The prayer for a jury came from themselves; the jury was the tribunal of their own choice.
I must also observe that, in cases involving such questions of fact as are presented in this cause, there is much to sustain the rule of our jurisprudence, which I have already referred to as consecrated by a long series of decisions.
While judges, from the nature of their vocation, are isolated from the everyday walks of life, jurymen, on the contrary, are constantly moving in them. Dealing with the world, and not with books, they are better qualified to appreciate the motives, characters and conduct of their fellow citizens, and have a more practical conception of the bearing of facts. Moreover, jurymen confront the witnesses, and have a better opportunity of estimating their intelligence, their fairness, and tlio general weight of their evidence. The tone, *56manners and appearance of a witness, his candour, or his reserve, his promptness or liis hesitancy, his calmness or his excitement, these, and other circumstances, are matters that, from their nature, are not susceptible of being inscribed upon the record. It comes before us a cold and inanimate transcript of the mere words that were uttered, and these often inaccurately or ambiguously preserved.
I would not voluntarily abandon our power to reverse the verdict of a jury on a question of fraud; but I hold such a verdict to be entitled to great deference, and not be set aside except for manifest error.*
Such considerations, accompanied by a careful examination of the testimony adduced in this protracted litigation, have induced me, so far as my opinion is concerned, to leave the judgment of the court below undisturbed. It is proper, hqwever, that in doing so, I should briefly refer to some of the prominent facts^ which, coupled with the verdicts of the two juries, have led my mind to this conclusion.
Furst himself stands before us unsullied by fraud. I do not understand the plaintiffs’ counsel as imputing it to him. The plaintiffs, by full interrogatories, have appealed to his conscience. He unequivocally denies the charge of fraud, and declares that Hazeur, by whom they allege that they were deceived, was not his agent, but their own; that if any fraud has been practised, it was not by himself, nor by his sanction. I find nothing in the testimony of the other witnesses to impeach the good faith of Furst, or contradict his answsrs under oath.
To Hazeur also the plaintiffs propounded interrogatories. In his answers under oath he denies the fraud imputed to him, declares that he acted for the plaintiffs, that he endorsed the notes at their request, that they must have known that they were buying Furst’s property, since they visited the ground before the completion of the sale, and conversed with him about the sale; that he also believes that they were aware of their mortgaging their property to Fuzst,'that he never attempted to impose upon them, but was their friend, and endeavored to obtain the property for them at as low a price as he could.
It is evident, from other testimony, that Hazeur was the confidential adviser and intimate friend of the plaintiffs. He was their agent for the sale of their lands, as is shown by a written instrument executed by them. He is their endorser on their notes.
Furst did not bargain for a price, exorbitant at the time. The price, thirteen, thousand four hundred dollars, on a credit, was a fair price at the then rates. We find that, in June, 1839, after the effects of the great monetary crisis had matured, it was estimated by judicial appraisers at a cash value of teu thousand dollars. The improvements put upon the property by Furst’s vendor, and which were quite new when Furst bought, having been built in 1835, cost six thousanddollars. This sale was made in the month of April, 1837. In March, 1837, Furst offered the property at auction, at a limit of fifteen thousand dollars; he obtained, but rejected, a bid of thirteen thousand and some hundred dollars, on terms of credit not materially more favorable to purchasers than in the sale to plaintiffs.
*57At this offering, at public auction, some of the plaintiffs attended to bid upon it. The veracity of the witness who asserts this is questioned, but it derives strong confirmation from the testimony of Manuel Fleitas, a witness whose veracity was neither impeached at the trial, nor questioned in the argument. The witness makes the following statement: “He sold the property to Furst. He saw Bernard, one of the plaintiffs, and one of the women now in court, and probably another woman, on the property visiting it. They went through the house. Witness was yet living in the house when they came there. They told witness they heard the property was for sale, and asked if there was any objection to their visiting it. Witness took them all over the house, and they examined it with care, and seemed to be well pleased. They also went out in the yard, and afterwards came back through the house. This was sometime between the last of January and the last of April. From all'that witness saw of them, he did not see that they were so very ignorant; they seemed to be persons intelligent for their walk of life.” That the premises were visited by some of the plaintiffs, is also shown by other testimony.
The marks of these purchasers were affixed to the acts and notes, in the presence of two witnesses. Both declared that the plaintiffs understood what they were doing. The veracity of one of these witnesses I did not understand as being impeached; but it was said he was inexperienced. He was a clerk in the notary’s office, and was about twenty years oí age.
The plaintiffs have executed other acts, both of sale and of mortgage, and have executed other notes.
The answers of some of them, when the notes were notarially presented to them at maturity for payment, negatived the idea that they were ignorant of the execution of the notes.
Several witnesses say the plaintiffs were very ignorant, and that one of them had arrived at an extreme old age. Were she the only purchaser, I might hesitate to affirm the judgment. But the others possessed their faculties, and are stated by some of the witnesses to be shrewd and cautious, and as intelligent as persons usually are in their walk of life Some of them were present in court and were seen by the jurymen. The question is, were they so ignorant as to believe they were selling, when in reality they were buying. The burden is clearly on them. By their own admission, they acknowledge they were making a contract of some kind. The power of attorney to Hazeur, executed in February, 1837, was offered by plaintiffs to corroborate their alleged error. This power authorized him to sell their land for forty thousand dollars; twenty thousand dollars cash, and twenty thousand dollars in notes at one and two years, bearing mortgage. If they thought that what they signed was the contemplated sale, how was it that this large cash sum was not told down to them, and that instead of receiving notes, they gave them. Such a degree of ignorance is conceivable; but what the plaintiffs ask us to believe passes the boundaries of the probable, and verges upon the incredible. Such, at least, was the unanimous opinion of twenty-four jurymen, and of the judge of the District Court, before whom this case was tried six times.
I cannot, however, close this examination of the facts of the case, without joining my colleagues in the deserved rebuke of the conduct of the notary, who, under his hand and seal of office, has declared that these persons appeared pernally before him at his bureau in New Orleans, in the presence of the subscri*58ing witnesses, when in reality the act was executed in the parish of Jefferson, out of his presence, and in presence of only one of the subscribing witnesses. The office of notary is one of great trust and high responsibility. . In the discharge of his official duties he should consider himself the especial guardian of the illiterate and humble, to read and explain to them the effects of what they sign, and to protect them against the superior intelligence of the educated, and the artifices of the designing. His official duty was grossly neglected in the present case.
It remains to notice briefly some points of law presented by the plaintiffs.
It is said there was no delivery of possession; but the act acknowledges possession, and, as between the parties, such acknowledgment is binding. Civil Code, arts. 2417, 2239.
It is said that the verdict rendered in favor of Furst was irregular, because there was no claim in reconvention upon which to found it. This cause was tried, and a judgment rendered previously. It was evidently-considered, at the former hearing before the Supreme Court, that Furst’s reconventional demand was still pending. See 3 Robinson, 347. The multifarious pleadings with which the record is crowded have been treated by the parties as consolidated, and were properly so considered by the court below.
The objection of a want of parties by reason of the death of M. J. Beaulieu, does not appear to me tenable. There was no action to malee new parties by the plaintiffs, themselves the forced heirs of their mothei-, and she an usufructuary under the father’s will. So far as Burst’s claim was concerned, he surviving parties were bound to him in solido upon the notes, and against those who were in court, a verdict was properly rendered for the amount of their indebtedness.
The certificate of the parish judge of Jefferson, accompanying a copy of the will of Joseph Beaulieu, does not set forth the probate proceedings; but the defect is supplied by a recitation in the act of sale, in which the will is announced as the the title of plaintiffs, and is declared to have been duly probated in the Probate Court of that parish.
In conclusion, I must remark, that in this case, the plaintiffs have had the benefit of six trials, and of the services of counsel of great eminence. While no jury has ever found for them, two have found against them. The costs and other expenses of this litigation must have been enormous, and it has occupied over and over again the time of jurymen and judges, during a harassing litigation of more than eight years. It is time this contest should close. Interest reipublicte ut sit finis litium.
In my opinion, the judgment of the court below should be affirmed with costs.
Forasmuch as, upon the question of the affirmance or reversal of the judgmenj upon which the appeal in this cause is taken; the judges of this court are equally divided in opinion, in obedience to the 68th article of the constitution the said judgment stands affimed, the appellants paying the costs of this appeal.
These remarks, with regard to juries, will not be considered as made generally. There are many classes of oases which seom to me very unsuitable for the consideration of juries, and in which their intervention is rather an impediment, than an aid, to the administration of justice. Note by Slidell, J.