author: Watkins, J.

text:
    No. 11,120.
    Robert Murphy vs. William E. Murphy et al.
    1. A written agreement, intended to evidence a final settlement o£ accounts, which is prefaced by an enumeration of various properties owned by the contracting parties jointly and separately; and. which contains a statement to the effect that an undivided one-half interest in each is to be transferred to the other, so that “each will own an undivided half interest” in all, taken as a whole, is rather to be given the effect of a confirmative or reeognitive act, explanatory of the status of the property, than that of a new title which is coupled with a condition, or depending for its completion upon the happening of a future and uncertain event.
    2. Upon this recognition of title a suit may be brought by either party for a partition of the common, or partnership property.
    APPEAL from the Cíyü District Court for the Parish of Orleans. Ellis, J.

      W. S. Benedict for Plaintiff and Appellee.

      Armand Pilie and Jerome Meunier for Defendants and Appellants.

      Wm. E. Murphy in propria persona:

    1. An action brought by parties claiming to own an undivided interest in an immovable against parties possessing and claiming to own the whole Immovable, and asking judgment decreeing their ownership and for partition, combines the double character of a petitory action and an action for partition.
    2. To the petitory action defendants are entitled to plead the prescription of ten years, although an action fpr partition is only barred by thirty years. LeBlanc et als. vs. Robertson et als., 41 An. 1023, and authorities therein cited.
    3. When one of the co-heirs or co-owners has enjoyed the whole or part of the property claimed separately, he or they who have thus separately possessed can successively oppose the suit for a partition if their possession has continued thirty years without interruption. O. C., Arts. 1305, 1306.
    4. There are cases in which a man may innocently be silent, but in other cases a man is bound to speak out, and his very silence becomes as expressive as if he openly consented to what was said or done and had become a party to the transaction. Thus, if a man having atitle to an estate which is offered for sale, and knowing his title, stands by and does not forbid it, he will be bound by the sale, and neither he nor his privies will be at liberty to dispute the validity of the purchase. 1 Story on Equity, 375, Sec. 385.
    5. Where one, by his words or conduct, wilfully causes another to believe in the existence of a state of things and induces him to acton that belief, the former is concluded from averring a different state of things existing at the same time. C. C., Art. 1810, 1811, 1812; McMasters vs. Banking Co., 1 An. 12; Lippmins vs. McCramie, 30 An. 1251; Iverwin vs. Insurance Co., 35 An. 34; Girault vs. Zuntz 15 An. 684; Montague vs. Weil Bros., 30 An. 50.

      6. Parties who lay by for a long period of time without asserting their claim, who suffer the circumstances which accompanied a transaction to fade from memory of the vicinage even of those concerned in it, ought not to complain that loss rigid evidence is required, nor ought they to gain by their own acquiescence while the transactions were yet recent and when more complete evidence might have been obtained. Baber vs. Towles, 11 La. 133; McGehee vs. McGehee, 11 An. 663; Davenport vs. Labauve, 5 An. Ill; Wood vs. Egan, 39 An. 685; 35 An. 1006; 7 An. 555; 11 An. 317; 37 An. 95; Succession Robb, 41 An. 247.
    7. The Supreme Court of the United States, in the case of Cressy vs. Myer et als. —ReportsU. S., 1891, in a ease under'similat circumstances, says: “ Considering that such a suit is proper, it still remains in the nature of a personal action by one individual against another, as against such a suit laches and limitations are in a court of equity a sufficient defence — the settlement was made in 1847. Thirty-six years thereafter this hill is filed. If the time for full payment is subtracted, this suit was commenced tiineteeu years afterward. Limitation and laches forbid that this suit shall be sustained.”
    8. An action to enforce an obligation before its condition is fulfilled will he dismissed. Groning vs, Krumbaar, 18 L. 404; Williams vs. Benton, 10 An. 158; Priollaud vs. Hurst, 18 L. 537; 1N. S. 592; 3M. 326, 513; 6 L. 536; Fernandez vs. Soulie, 28 An. 31; Avendano vs. Arthur, 39 An. 316.
    9. An amendment of a judgment without a new trial is irregular. The Code of Practice, Art. 547, provides in rvhat cases judgments may be amended by the court until after having been signed. 1. To alter phraseology hut not substance. 2. To correct errors of calculation if more had been given than was demanded or if the party in whose favor judgment was given had been ordered to pay costs. Except in cases above proscribed courts cannot alter their judgments, hut must direct a new trial in order to revise their judgments. Miller vs. Chandler, 29 An. 91; Whipple vs. Hertzberger, 11 An. 457. C. P.j Art, 547, 518; Flint vs. Curry, 6 L. 548.
   The opinion of the court was delivered by

Watkins, J.

This suit has for object a partition of sundry pieces of real estate situated in New Orleans, between the plaintiff and his brother, one of the defendants; and in aid and furtherance of the partition, the annulment of a certain donation of a portion of same, by the latter to his daughter, Oitye Anne Murphy.

Demand is also made of the defendant, W. E. Murphy, for the settlement and liquidation of the rents and revenues of the property since 1880, for the appointment of a receiver and other appropriate redress and relief in the premises.

Defendant W. E. Murphy first answered and plead a general denial, setting up a claim in reconvention for a large sum, as the proceeds of the sales of property the plaintiff had made of his (defendant’s) share of the property, real and personal, and also for revenues.

Ill a supplemental answer defendant specially denies that the properties designated and described in the written act, of date June 14, 1855, on which the plaintiff relies, were or are held in common by and between them, with the exception of those mentioned in the agreement as common or partnership property. He further avers that the properties so held in common, and others which were owned by him individually, though alleged to be partnership property, were mortgaged and sold by the plaintiff without his consent or knowledge, during the years 1859, 1860 and 1861; that the proceeds thereof have never been accounted for since; and that on that score the plaintiff is indebted to him in the sum of $59,725. And, in the alternative, the defendant avers that, in case those properties shall be decreed to be partnership property, the plaintiff is indebted to him one-half of that sum; and the further sum of $6650 for the proceeds of the property standing in his name alone. His further averment is that, of the properties designated on the exhibit annexed to plaintiff’s petition, one belongs to his daughter, Oitye Anne Murphy, and to which she derived title by inheritance from her mother, and that another belongs to the children of his (defendant’s) daughter, and to which the latter derived title by marriage contract.

Oitye Anne Murphy answers and avers that she is the sole and exclusive owner of the property situated on Marais street, between Ursulines and Bayou Road streets, and that she derived title thereto by a donation made to her by her father, W. B. Murphy, in 1889, and of which said donor was sole owner at the time of donation, and that his title is evidenced by recorded titles. She avers that she is joint owner with the children and heirs of Mrs. Hailliot of the property situated on Villeré and Robertson streets, between Ursulines and Bayou Road streets, they having inherited same from the mother of W. E. Murphy and their grandmother, as evidenced by recorded titles.

On the trial, and after a protracted examination of the testimony, the district judge reached the conclusion that there is not one of the properties that are listed in the partnership settlement touching the title to which he felt willing to enter a definitive judgment, except that indicated on the exhibit as No.. 3, it embracing three lots on Marais street, and with reference to which he held “ that under the terms of Document B ” — one of the exhibits that is annexed to plaintiff’s petition, and that on which he relies for title — “ the plaintiff is entitled to a decree of partition,” etc., only pro tanto.

In pursuance of that theory he rendered a judgment recognizing the joint and equal ownership of the two brothers Murphy in said property, “the same being the only properties remaining undisposed of on which the court can decree” — the rights of all parties being reserved in respect to other properties.

He further decreed that a partition be made by licitation, on terms of cash and credit, and that all matters of account arising since 1st of January, 1880, be reserved for adjustment and settlement in the partition, to which all such matters were reserved and referred.

From that judgment the defendants have appealed; and in this court they plead, in the alternative if it be found as a fact that the property in question is a partnership asset, the prescription of ten and thirty years acquirendi causa on the face of the transcript.

Plaintiff and appellee answers the appeal, and, practically, demands the amendment of the judgment appealed from, so as to conform to the prayer of his petition, save and except in some unimportant particulars.

With regard to the pleas of prescription urged, we have examined the record in vain in an effort to discover any proof in support of the defendant’s pretensions. During the years that have intervened since 1855, when the partnership settlement now invoked was entered into, the plaintiff and defendant have, alternately, dealt with these properties as owners and agents, collecting rents and making sales, without one appearing to have consulted the other. At any rate, and without interpreting their acts as affecting their other rights, this course of dealing indicates such a community of interests as will preclude the assertion of adversary right, or possession on which title by prescription can be founded. This case does not come within the principle announced in LeBlanc vs. Robertson, 41 An. 1023, but is controlled by the provisions of R. 0 . O. 1304.

The testimony shows that the two brothers were jointly interested in business, and that the various properties were acquired, whether in the name of one or the other, with, at least, an understanding that their acquisitions were to be mutual and in common.

In this situation, no starting point for the prescription acquirendi causa can be discovered. Hence, we are of the opinion that the plea is not well founded.

The written agreement, which is relied upon by the plaintiff as a title, was evidently intended by the parties as “ a final settlement of accounts, property and interests ” between them, accompanied as it was with a complete and extended statement of their “ real estate, slaves, assets and liabilities,” upon each of which a valuation was placed; and an examination of the evidence has even more satisfactorily demonstrated the correctness of that view. But we are equally well satisfied that all the properties described in the act, with the exception of the one dealt with in the opinion of the district judge, have been disposed of, and placed beyond the reach of the court; and we are likewise satisfied that it is covered by the agreement, and was properly treated by the district judge as partnership property.

Defendant’s counsel, however, most strenuously insist that the agreement does not confer an absolute or unqualified right, but simply an inchoate and contingent right, making the transfer dependent upon the happening of a condition, an “unforeseen accident,” which never happened; an uncertain future event, on account of the nonoccurrence of which, title did not pass from one party to the other.

The paragraph relied upon is couched in the following terms, viz.:

“We, the undersigned, hereby agree that this account, made in duplicate, shall be considered and accepted as a final settlement between us, one-half of the whole property and slaves in the name of W. E. Murphy, it is hereby agreed, shall be transferred and passed into the name of Robert Murphy, and one-half of the property and slaves in the name of Robert Murphy shall be transferred and passed into the name of W. E. Murphy, so each will own an undivided half interest.
“ This transfer to be made before a notary, at such time as either party may wish; but in case any unforeseen accident should prevent such a transfer being made, then this present agreement shall be considered as a sale from one party to the other, as mentioned above.”

In the district court the same view was presented, but it did not convince the judge a quo, for in his written reasons for judgment he employs this language, viz.:

“ Defendant’s counsel have -argued with learning and ability that that agreement depended upon a condition which had never happened, to-wit: the passage of the notarial act referred to in sad agreement. I have examined the authorities cited, but it would serve no useful purpose to discuss them in this opinion. The parties contemplated a notarial act, but they were fully agreed on every matter of detail, and in the agreement, which they wrote and signed, they stipulated that if a transfer by the notarial act referred to should not be passed, that then this present agreement shall be considered as a sale from one party to the other; as mentioned above,’ and the last clause providing in the contingency of the death of either party for the retention of the portion of the deceased’s property,’ for the benefit of his heirs, etc., indicates their intention and will that the property was joint property.”

While not accepting the theory of the judge a quo, entirely, we are constrained to regard the instrument, taken as a whole, as having rather the effect of a recognitive act, or counter letter, explanatory of the status of the parties, as well as of the property, than as a title to property, coupled with a condition, or depending for its completion upon the happening of a future, uncertain event. The act does not purport the conveyance of a new title. It does not evidence the transactions of strangers. But it recognizes a status quo. It is a statement of accounts then existing between the brothers, and purports a full settlement thereof. This settlement is prefaced by an enumeration of all the real properties held by them jointly or separately, and for the adjustment of which provision is made in the quoted provisions of said act, supra; and it declares “that this account, made in duplicate, shall be considered and accepted as a final settlement between us, one-half of the whole property and slaves in the name of W. E. Murphy, it is agreed shall be transferred and passed into the name of Robert Murphy,” etc., and vice versa. The plain and manifest sense of that declaration is that the titles standing in the name of either or both of said parties was, originally, common property, in which each was owner of one-half interest, and that to effect a settlement and make titles conform to the facts, this specification is made. This theory is further confirmed by the fact that for many years prior to date of settlement, most intimate and confidential relations had existed between the brothers, and in the acquisition of property, real and personal, their means and industry were indifferently bestowed, so that it is impossible from the record to accurately determine who contributed the larger proportion thereof. This was the apparent situation when their departure for Europe rendered necessary the statement of their affairs as a mutual protection and safeguard. And if there be any doubt as to the correctness of this interpretation of the act, it is evidently dispelled by its concluding sentence, namely: “It is further agreed between the undersigned that in case of the death of either party, the surviving one shall have the right of holding the portion of the deceased’s property for the benefit of his heirs for the term of-years, so as he can dispose of the same to the best advantage; that is to say, the survivor shall not be forced to sell the property so held in common for the above named term of-years.”

In so far as the objections and estoppels which the defendants urge against the assertion of title by the plaintiff, consisting, as they do, of a solitary letter of plaintiff written in 1862, and his attestation of a marriage contract purporting settlement by W. E. Murphy of part of the common property on one of his daughters, it seems sufficient to say that these minute circumstances standing apart from the great multitude of prior and subsequent transactions can not be considered as exercising a controlling influence over them. The letter was written during the late war, and was addressed to an agent giving instructions about the property standing in the names of the brothers indifferently, and without some confirmatory proof of other intention on the part of Robert, it ought to be construed conformably with the terms of the written agreement, and not adversely to it.

In so far as the fact of the plaintiff having attested a marriage contract to which the defendant’s daughter was a party is concerned, ample answer is that it only stipulated a mortgage on the properties in question, and not a sale; and the mortgage having lapsed, the property is again released. His assent to the mortgage was only tantamount to a waiver of his rights in favor of -the mortgagee and constitutes no bar to his assertion of title as against the mortgagor.

In so far as the alleged donation inter vivos by the defendant, W. E. Murphy, to his daughter, Citye Anne Murphy, is concerned, we find, after a careful examination of the record, no trace of it, and can not for that reason express any opinion in reference thereto.

We are of opinion that the judgment appealed from is correct and it is therefore affirmed.

Rehearing refused.


source: Caselaw Access Project

license: Public Domain

text:
    No. 11,186.
    The State of Louisiana vs. Rob McTier.
    In case the entire charge of an information is set out in one continuous, unbroken sentence, two seemingly antagonistic parts thereof not being separated by a semicolon, can not be fairly construed as charging two separate and distinct offences, rendering it liable to the objection of duplicity. It is more consonant with reason and the spirit of our jurisprudence that the subordinate or charging portion of the information be treated and considered as explanatory of the character of the offence that is denounced.
    If defendant fails to retain a bill of exceptions to the refusal of the trial judge to grant a motion for anew trial, the ruling is not examinable.
    APPEAL from the Sixth District Court, Parish of West Carroll. Ellis, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      Cray & McBain for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The defendant, having been tried and found guilty of inflicting a wound less than mayhem, was sentenced to fifteen months’ imprisonment in the penitentiary, and from the verdict and judgment appeals, relying for relief upon a motion in arrest and one for a new trial.

I.

The motion in arrest of judgment is based upon the averment that the information is defective for duplicity in that it charges the defendant with two offences denounced by separate and distinct statutes and the penalties for which two offences are distinct and different, namely, Revised Statutes, Sections 793 and 794.

The charge of the information at which this plea is directed is that the defendant did, “ with force and arms, * * * upon one Reuben Johnson, a person in the peace of the State, then and there being, * * * wilfully make an assault with a dangerous weapon, to-wit, a pistol, and upon him, the said Reuben Johnson, did, then and there, wilfully and maliciously inflict a wound less than mayhem with said pistol.”

While the language of the information is open to verbal criticism, and phraseology is employed that would seem applicable to either section of the statutes referred to, yet, taken altogether, it appears to charge the defendant with wounding less than mayhem. The whole charge is set forth in one continuous sentence, the two parts designated not being even separated by a semicolon, indicating a division of the subject matter, much less is it included in two separate ■counts.

That portion of the charge of the information which declares that the defendant did “make an assault with a dangerous weapon,” may be viewed as simply descriptive of the manner of inflicting the wound less than mayhem. The whole information clearly indicates the commission of but one act by the defendant, and not two separate and distinct acts or transactions.

The charge of duplicity is not made out and motion to arrest was ■correctly refused.

II.

The motion for new trial was overruled and no bill of exceptions was reserved to its refusal, consequently we can not examine it. ■State vs. Wise, 38 An. 684; State vs. Darrow, 39 An. 677.

Judgment affirmed.


text:
    No. 11,099.
    The State of Louisiana vs. George Dean.
    An appeal from the judgment of a municipal tribunal to the Supreme Court must involve the constitutionality or legality of some city ordinance, otherwise it is not examinable either as to law or fact. If, however, it presents such a question, both the fact and law of the case are open to examination and decision
    APPEAL from the First Recorder’s Court of New Orleans. Adams, J.

      E. A. O’Sullivan, City Attorney, for Plaintiff and Appellee.

      P. L. Fourehy fo'r Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The defendant is appellant from a judgment and sentence of $25 fine, and in default of payment, thirty day’s imprisonment in the parish prison, for using vulgar- and obscene language on the streets in violation of city ordinance, No. 3121, A. S., as amended by ordinance No. 4925, C. S.

His complaint is that the judge of the recorder’s court being recused, Recorder Adams was called to preside at the trial in his place, over his objection and exception; and that said recorder, instead of taking up the case for trial in open court, retired to his private office, where he proceeded to hear and decide the cause.

It is apparent that we can entertain no jurisdiction in such a case, as our authority in this class of cases only extends to those controversies in which the constitutionality or legality * * “of any fine, forfeiture, or penalty imposed by'a municipal corporation shall be in contestation.” It is quite true that it also provides that “in such eases the appeal on the law and the fact shall be directly from the court in which the case originated to the Supreme Oourt. Const., Art. 81.

But the case must involve a question of the uneonstitutionality or the illegality of the city ordinance, under which the defendant and appellant is being prosecuted, and hence the constitutionality or legality of the fine, or penalty which is imposed, is drawn in question; otherwise the appeal is not examinable, on either law or fact. If, however, the appeal presents such a question of constitutionality or legality of ordinance and penalty, the fact as well as the law are open to examination. This appeal is wanting in the most essential. element to give this court jurisdiction.

Judgment affirmed.


text:
    No. 11,189.
    Russ & Hollingsworth vs. Their Creditors.
    An appeal bond that is alone conditioned that appellant shall pay and satisfy such ¡judgment as may be rendered against them is not sufficient. It must contain the additional condition, either in terms or substance, that the appellants shall prosecute their appeal.
    APPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.

      Scarborough & Carver for Plaintiffs and Appellees:
    On motion to dismiss.
    1. An appeal bond which does not bind the appellant to prosecute the appeal is void for want of compliance with the law. 0.1\ 579; RawiO vs. Feltus, 33 An 422; Caldwell vs. Ballow, 7 ¡3. W. Rep. 677; Succession Calhoun, 35 An. 363.
    2. The court will not depart from the letter of the law, when it is plain, under pretext of pursuing its spirit. C. C. 13.
    3. Article 579, O. P., says: the appeal bond must be conditioned that the appellant shall prosecute the appeal. This language is not only plain but mandatory.
    On Merits.
    1. A charge of fraud against an insolvent debtor, while not, strietiy speaking, a criminal case, is quasi-criminal. The penalty is so severe that the court will not convict and punish without the verdict of a jury. 7 An. 258.
    2. The law favors cessions of property by insolvent debtors. Insolvent laws are humane statutes adopted by albenlightened governments and based on considerations of the soundest public policy. It is not to the interest of the commonwealth to force its citizens to struggle through life under a hopeless burden, of debt when they desire to give up their present effects and start anew Hence these laws are construed liberally in favor of tlie insolvents. 95II. S. 704; 99 U. S. 1; 111 IT. S. 676; 129 IT. S. 65; 2 An. 1023; 14 An, 516; 40 An. 655.
    3. The word fraud, as used in the insolvent laws, does not mean mere legal or. constructive fraud, but actual fraud, involving moral turpitude, as embezzlement. Same authorities also.
    4. Two things are necessary to constitute fraud, viz., the actual injury to creditors, and the corrupt and criminal intent on the part of the debtor. Same authorities; also 16 La. 351; 18 La. 383; 44 An. 19.
    5. Unintentional or involuntary fraud is a solecism. Corrupt intent is the very essence and soul of fraud. Same authorities.
    6. R. S. 1802 et seq. provide for two classes of frauds, viz., frauds per se, and presumptive frauds. 40 An. 96.
    7. The acts charged in this case which would be frauds per se, if committed, are not sustained by a particle of evidence, but on the contrary are shown by overwhelming evidence to be utterly false and unfounded.
    8. Those which would imply fraud, if unexplained, are also for the most part utterly unfounded. All of them are fully, fairly and squarely refuted.
    9. An opposition to the surrender and discharge is not the proper place for creditors to litigats their claims inter sese. It can only be done i» comcurso over a tableau of distribution. 40 An. 654, and authorities there cited.
    10. As no judgment was asked against S. IS. Russ, Sr., which could have been rendered in this form of action, he was properly dismissed from the suit on his exceptions.
    11. The wife is a preferred creditor, and neither actual insolvency nor injury to the rights of other creditors is a bar to a l/ona fide transfer from the husband in satisfaction of her claims. 34 An. 993; 33 An. 536; 30 An. 745.

      Omer Villeré, Chaplin, Brazeale & Chaplin and Cunningham & Tucker for Opponents and Appellants:

      On Motion to Dismiss.
    The right of appeal is constitutional, and the law should bo construed liberally in favor of the appellant. 33 An. 345; 1 An. 414; 11L. 382.
    The law prescribes no particular form for an appeal bond; it only requires that it should contain in substance certain conditions. 1 An. 122; O. P. 579.
    An appeal will be dismissed only where the appellee shows himself clearly entitled to that relief. In cases of doubt the interpretation will be liberal in favor of the appellant. 1 An. 414.
    Inaccuracies and omissions in an order or bond of appeal will not invalidate the apppeal, if, when construed by the law with reference to which they are given, its requirements are substantially met, expressly or by implication. 40 An. 277; 29 An. 526; 38 An. 271,1461; An. 963; 30 An. 801.
    When it is apparent that an appellee can recover from a surety on an appeal bond the amount of the judgment appealed fx*om, if affirmed, the appeal wili not be dismissed owing to alleged deficiencies in the bond. 35 An. 348.
    It is only when the bond expressly limits the liability of the surety below that fixed by law that the appeal will be dismissed. 33 An. 421; 28 An. 80.
    On the Merits.
    A debtor can nob be discharged from his debts by making a surrender of his property, on the vote of a inajority in number and amount of his creditors, unless he surrenders all of his property not exempt, in good faith, and without fraud. R. S., See. 1784; O. O. 2174 (2170).
    A debtor is guilty of fraud who conceals any part of his property or transfers it to another place to keep it from his creditors. R. S., Sec. 1802.
    A debtor who shall, within three months next preceding his failure, have sold, engaged or mortgaged any of his goods and effects, or otherwise disposed of same, in order to give an unjust preference, shall be debarred from the benefit of the insolvent laws. R. S., Sec. 1808.
    Such debtor shall be eonsidei'ed guilty of fraud, if he has given, within the year preceding the surrender, an unjust advantage or preference to any one or more of his creditors, by payment or otherwise, or has, within the year, made a conveyance, transfer, mortgage or pledge of any part of his property, to the prejudice of any complaining creditor, R. S., Sec. 1804.
    A debtor giving such unjust preference or advantage to&bonafide creditor shall be deprived of the benefit of the insolvent laws, but need not necessarily be imprisoned. R. S., Sec. 1807. And such debtor will not be imprisoned when the complaining creditors do not ask for his imprisonment, which remedy they can waive. 11 An.[69.
    Any agreement to buy the vote of a creditor by assuring the payment of his debt is fraudulent, a perversion of the course of justice, and a fraud upon the court. IS An. 241.
    An agreement or arrangement by which the debtor personally or through another is to get back a part of his property is fraudulent, and vitiates the surrender
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

Plaintiffs and appellees move to dismiss this appeal, on the ground that the appeal bond is wanting in an essential requisite, it not containing the required stipulation of the Code of Practice, that appellants shall prosecute their appeal.

The opponents obtained appeals, suspensive and devolutive, and executed an appeal bond for $1000, the condition of which is that “if the said Harris, Day & Oo., and others, opponents in said writ, shall pay and satisfy such judgment as may be rendered against them on appeal in this case, then this obligation to be null and void,” etc.; whereas the requirements of the Code of Practice are that “ in the appeal bond it must be set forth in substance that it is given as surety that the appellant shall prosecute his appeal, and that he shall satisfy whatever judgment may be rendered against him * * * if he be cast in his appeal otherwise,” etc. O. P. 579.

The defect appellees assign as necessarily fatal is that the bond omits the requirement that “the appellant shall prosecute his appeal.”

Appellee’s counsel insist that the requirement is not only plain, but mandatory, and failure on the part of appellants to comply therewith must necessarily result in the dismissal of their appeal.

The argument made in favor of this theory is, that if such a bond will suffice, the winning creditor in the lower court has no protection. For the party cast may apply for a suspensive appeal, and file such an appeal bond as the one furnished in this case, and thereby incur no risk or responsibility in abandoning his appeal, and refusing to prosecute same on the return day. If the sureties were ruled to show cause why judgment should not be entered up against them on the bond they could surely answer that, as the appeal was not prosecuted by the parties cast, and their only obligation being “ to pay and satisfy sueh judgment as may be rendered against them on appeal in this ease," they were under no duty or obligation toward the appellees, because no judgment had been or could have been rendered against the appellants by the appellate court; and they had not obliged themselves to pay anything else, or to pay otherwise.

There can be no question of sueh an answer being good, for the extent of the sureties’ obligations is that they are to “ pay and satisfy such judgment as may be rendered against them on appear1 in this case;” and none has been rendered.

Had the bond contained the missing provision, the liability of the sureties would have attached by reason of appellants’ failure to prosecute their appeal.

In Rawle vs. Feltus, 33 An. 421, this court sustained a similar motion, and dismissed an appeal on the ground that such a bond “ is fatally defective for want of compliance with the legal requirements prescribed by Articles 578 and 579, O. P. * * * It must be given as surety that the appeal will be prosecuted.” (Our italics.)

Under quite a similar state of facts this court considered and maintained a motion to dismiss, in the Succession of Calhoun, 35 An. 363.

In Champonier vs. Washington, 2 An, 1013, the converse of this proposition is announced — the sureties on an appeal bond being held liable, because it contained the stipulation that the appellants should prosecute the appeal, and the proof showed that they abandoned t.

To the same effect is Moore, Janney & Hyams vs. Lalaurie, 27 An. 645.

It must be observed that the bond not only does not contain the requirement that the appellant shall prosecute his appeal, in terms, but there is no such stipulation in substance. No words of similar import, of any kind or character, are employed. This is not a mere inaccuracy or inartificiality in the confection of the bond; for the code contains two separate and distinct requirements: (1) That the appellant shall prosecute his appeal, (2) and that he shall satisfy whatever judgment, etc.

They are united together by the copulative conjunction “and,” and the former is entirely omitted from the bond.

In our opinion, this question is fairly met and decided in the Calhoun case, in the subjoined extract therefrom, viz.:

“However much it may be claimed that judicial bonds are to be construed with reference to the law under which they are given, and that any clause which is superadded must be rejected, and any that is omitted supplied, it surely can not be insisted that when the surety on a judicial bond has bound himself in. a particular contingency only, he can be held liable in other contingencies.” 35 An. 363.

After making a careful examination of all the cases cited in appellants’ brief, we have found no case which maintains an appeal bond lacking the legal requisite the one under consideration does.

In Caldwell vs. Ballow, 7 Southwestern Rep. 677, we find quite an appropriate and instructive opinion of the Texas court — a court from which we are at all times pleased to quote — in which the selfsame question arose, and a motion to dismiss was sustained, under like circumstances as those existing in this case.

“This is a motion,” says that court, “to dismiss a writ of error on the ground that the bond is not conditioned as required by statute. The condition of the bond is that the obligors ‘ shall comply with the judgment, order or decree of the Supreme Court upon such writ,’ etc. * * * The bond was evidently intended as a supersedeas bond, which the statute requires to be conditioned that such appellant * * shall prosecute his appeal,’ etc. * * One of the conditions of the bond required by the statute is entirely omitted. The statute is plain, a compliance with its terms easy, and we are not to presume that it was the intention of the Legislature that any of its terms or conditions should be dispensed with. If such a bond does not literally comply with the statute, it must fully and clearly embrace all the conditions presented by it. This the bond before us does not, and the writ of error must be dismissed.”

We are in perfect accord with that opinion and the views therein expressed are particularly applicable to this ease.

The appeal bond in this case is radically defective and the motion must prevail.

Appeal dismissed.


author: McEnbry, J.

text:
    No. 11,203.
    Mrs. J. T. Chambers et al. vs. Martin Haney et als.
    Where an agent is authorized to sell and dispose of certain lands, and he exchanges them for other lands, the principal ratifies the act if he sells the lands which his agent- received in exchange.
    A copy of a copy of an authentic act is inadmissible in evidence, unless the original is alleged and proven to be lost and that a copy thereof can not be obtained.
    Where a party disposed of lands in his lifetime and the deed was recorded in the parish in which they were situated, and these lands afterward became apart of a new parish and the act of sale was not recorded in the new parish, the heirs of the deceased cannfet claim title to said land on account of the failure to record the deed in the new parish.
    APPEAL from the Eighteenth District Court, Parish of Tangipahoa. Thompson, J.

      W. H. McClendon for Plaintiffs and Appellants:
    A power to sell is not a power to exchange. 15 An. 560; Story on Agency, par. 78. It must be express to sell or to buy. C. O. 2997.

      The action, of the agent beyond his authority does not bind his principal. 4 H. S. 502; 2 Rob. 274; 3 An. 468.
    One who deais with a special agent must, at 2iis peril, see tliat lie does not exeeed liis authority. 6 La. 47; Story on Agency, par. 72. And can derive no benefit from a usurpation of power by an agent on whose act he relies where such usurpation was known to him. 4 An. 236.
    One who, from his relations with his vendor, must have known the defects of the latter’s title (autliority) can not plead prescription. C. C. 3479, 3452; 14 An. 814; 42 An. 161.
    The law will not permit persons acting in a fiduciary capacity to place themselves where their private interests conflict with their duty to others.
    An agent can not purchase the property of his principal. The law strikes the sale with nullity. Hennen’s Digest, Mandate V(e) Ho. 1*10; Story on Agency, par. 210.
    There can be no valid ratification of a contract that is null, or of one that is without object, unless it appear that the party knew with precision what act he was ratifying and its defects. 0.0.2272; 15 An. 569; 16 An. 245; 23 An. 538; 15 An. 268.
    White, Parlange & Saunders for Defendants and Appellees:
    An invalid contract by an agent will be held ratified by the principal, after a tacit acquiescence and a long silence. Lafitte & Oo. vs. Leon Godchaux, 35 An. 1161; 34 An. 150.
    The acts of an agent, even if unauthorized by his mandate, or in violation thereof, are considered as ratified by theprincipal by acquiescence, if, after knowledge of the same, he does not repudiate them. 36 An. 616, and cases therein cited.
    Theprincipal must disapprove his agent’s acts within a reasonable time, otherwise he is bound by the acts of his agent, done in good faith. 18La. 517; Starr & Howland vs. Zaeharie & Go.

    The recorder of conveyances is the custodian of conveyance records, and therefore the proper officer to grant copies from his office.
   The opinion of the court was delivered by

McEnbry, J.

William A. Chambers died in the parish of Tangipahoa in 1868, leaving a widow and three sons.

In this suit the widow and two sons are plaintiffs, and the third son, W. A. Chambers, Jr., is one of the defendants.

The plaintiffs allege that their deceased father left as community property two bodies of land situated, one inT. 4 S., R. 7 E., the other in T. 4 S., E. 8 and 9 E. They further aver that on the 20th May, 1891, the tax collector of Tangipahoa parish adjudicated to one of the defendants, Haney, the second described tract of land, situated east of the river Tangipahoa, as property which had been previously forfeited to the State for unpaid taxes of past years. The adjudication was for the price of |13. The tax sale is assailed for nullity on several grounds. The defendant, W. A. Chambers, Jr., on 5th August, 1881, gave in exchange to defendant, Haney, 125V.76 acres for the lands in T. 4 S., R. 8 and 9 E., which he, Haney, had bought at said tax sale.

The exchange was made in the interest of the widow and heirs of W. A. Chambers, deceased.

In a supplemental act of exchange Chambers, Jr., gave to Haney 815.16 acres of said land in T. 4 S., R. 4 E., which was omitted from the first act of exchange.

The defendants answered denying that W. A. Chambers, Sr., died owner of the lands in T. 4 S., R. 8 and 9 E., and east of Tangipahoa river; that said lands which he acquired at tax sale were sold and conveyed to W. A. Chambers, Jr., by his father, W. A. Chambers, by act passed before Felix Grimm, notary public in and for the parish of Orleans, on June 28, 1867, and duly recorded in the conveyance records of St. Tammany parish; that said lands so conveyed were when sold to Chambers, Jr., embraced within the limits of the parish of St. Tammany, and after the parish of Tangipahoa was created they became a part of said parish; that in the transcript of conveyance records of St. Tammany, which were required to be forwarded to Tangipahoa, the record of the sale of said lands from Chambers, Sr., to Chambers, Jr., was omitted; that W. A. Chambers, Jr., the owner of said lands, requested defendant, to buy said lands, promising him that if he would buy said lands said Chambers would give him in exchange therefor the lands lying in T. 4 S., R. 7 E., to which W. A. Chambers, Sr., when he died did not have complete title, the defendant to defray all expenses of completing said titles, say, $250; that Chambers, Jr., represented that this proposition was made with the consent and approval of the plaintiffs; that after said contract was made said W. A. Chambers, Jr., obtained from plaintiffs their written authority and power of attorney of date April 9, 1881, for the purpose of making the exchange of said lands; that since said exchange of August 6, 1881, and the supplemental act of December 27, 1881, the plaintiffs have sold said lands.

The defendant, W. A. Chambers, adopted the answer of his co-defendant, and especially avers that the exchange of said lands was made by him individually, and as agent and attorney in fact of plaintiffs ; that said exchange was made in pursuance of the agreement with Haney, known to plaintiffs, and indorsed and approved by them, and that the power of attorney was executed for the special purpose of carrying out said agreement.

There was judgment for defendants, and plaintiffs appealed.

The power of attorney to W. A. Chambers, Jr., executed by plaintiffs, is as follows: that they hereby constitute and appoint Wm. A. Chambers, of Tangipahoa parish, agent and attorney in fact for us, and in our name, place and stead, to sell and dispose of all our right, title and interest, claim or demand, in and to any and all lands in which we are interested in the parish of Tangipahoa, and especially that portion lying in T. 4 S., R. 7 E., and known as the Duck Swamp land, and we bind ourselves to abide by all his acts in the premises.”

Under this power of attorney Chambers, Jr., made the exchange as stated with defendant Haney. The plaintiffs afterward sold a large part of the land they took in exchange to one Chesbrough. If •it was succession property which Chambers, Jr., exchanged with Haney, the plaintiffs had the right to sell it in their own right, and also to recover the same as succession property by attacking the tax deed.

The claim of plaintiffs to ownership of the land, notwithstanding the sale of Chambers to Chambers, Jr., because of the failure to transfer the act of sale to Tangipahoa parish, is untenable.

The failure to forward it there for recordation with the other records could not defeat the title of Chambers, Jr. If sold as alleged the title passed from Chambers, Sr., and the plaintiffs claiming through him can not do what he could not do in his lifetime. He could not be revested with title by the failure to record the deed. If the property belonged to defendant Chambers, Jr., he could do what he pleased with it. Plaintiffs were without interest to attack the tax deed, and if, as alleged by defendants, the property was owned by Chambers, Jr., the sale of the land received in exchange by plaintiffs was a ratification of the act of exchange, although the power of attornev may not have authorized that mode of disposing of the property.

To establish the sale made to Chambers, Jr., by Chambers, Sr., the defendants offered in evidence the copy of the copy recorded in St. Tammany parish.

This was objected to by plaintiffs as being inadmissible, as it was a “ copy of a copy,’’’ and not a copy of the authentic act of sale.

The objection was well taken and the district judge was in error in admitting it.

“The best evidence must be produced.

- “A copy of a copy is not admissible in evidence unless the original is alleged and .proven to be lost, and that a copy thereof can not be obtained.” Civil Code 2268, 2269, 2279, 2280; 6 New Series, 208; 2 An. 998; 36 An. 683; 7 New Series, 550; 5 New Series, 175; 13 Louisiana, 536; Mercier vs. Harnan, 39 An. 94.

There was no allegation made, or proof offered, that a copy of the original act could not be obtained, or had been lost or destroyed.

There is no evidence in the record of any fraud or collusion between the defendants to deprive plaintiffs of their property.

The case will be remanded to take evidence on the alleged sale of W. A. Chambers to W. A. Chambers, Jr.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that this case be remanded to be proceeded with according to law, and the views herein stated, appellees to pay costs of appeal.


author: McEneky, J.

text:
    No. 11,209.
    Mrs. Ann Chapoton vs. Her Creditors.
    Ip a suit by the syndic of an insolvent estate to annul a mortgage granted three months belore the judicial recognition and declaration of insolvency, it is essential to prove that the mortgage creditor, who, it is alleged, was preferred, had knowledge of the insolvent condition of the mortgagor.
    Where a question of fact has been submitted to the lower court, the Supreme Court will not interfere with the judgment, unless a manifest injustice has been done.
    APPEAL from the Fourteenth District Court, Parish of Iberville. Talbot, J. _

      Alex. Hebert and J. H. Bills for the Syndic, Appellant.

      Ernest T. Flor anee contra.

   The opinion of the court was delivered by

McEneky, J.

This suit was brought by the syndic of the insolvent to annul and cancel a mortgage given by her to a creditor on her property, more than three months before the insolvency was judicially recognized and declared.

It is therefore a revocatory action to be determined by Arts. 1983, 1984, 1985 of the Oivil Oode. Seixas vs. Citizens’ Bank,38 An. 427.

To entitle the syndic to a decree annulling the mortgage it is essential for him to prove knowledge of the insolvency on the part of the creditor obtaining the mortgage, and an advantage over the other creditors of the obligor. Oivil Oode, Art. 1984.

The estate of the insolvent is.insufficient to satisfy her creditors, and the preference given to the mortgage creditor necessarily injures them and gives him an advantage over the other creditors.

The question then at issue is the knowledge of the mortgage creditor of the insolvency.

The insolvent was indebted to J. G. -Spor in the sum of $2381. He had been doing business with her for several years, ever since she first started iu commercial life. •

On the 6th day of December, 1889, he sent his agent, Wilcox, to the insolvent’s residence in the town of Plaquemine to demand payment of his debt.

Mr. Ohapoton, the husband of the insolvent debtor, and her agent and manager, assured this agent that Mrs. Ohapoton was perfectly solvent; that she had outstanding debts, which then had not been collected, but were good and could be collected in the course of the year; that if she were granted one year’s time on this debt, Spor would lose nothing and she would be able to “pull through.” Wilcox says he inquired among the merchants of the town as to the financial standing of Mrs. Ohapoton, and ascertained that her credit was good. He had no suspicion of her insolvency.

She, through her husband, proposed to secure the debt by mortgage in order to obtain the required time. Neither he nor his principal asked for the mortgage, or even suggested it.

Had he entertained any suspicion of the insolvent condition of Mrs. Ohapoton he would have instituted suit immediately against her in order to obtain judgment at the ensuing January term of court.

He returned to New Orleans and reported these facts to his principal, Spor, and some two/weeks thereafter, on the 19th of December, 1889, the mortgage was executed.

The business manager, the husband of Mrs. Ohapoton, says at this time she was only embarrassed on account of failure to make collections, but her assets exceeded her liabilities. These facts were communicated to the agent, Wilcox. He says, “from statements made to me by herself and husband, and investigation regarding her financial standing in the city were of, such a character that I believed she was . able to pay her debts. The information I possessed and my belief was communicated to Mr. Spor, who approved of my action.”

Spor denies all knowledge of the insolvency of Mrs. Chapoton. He had great confidence in her, entrusted his claim to Wilcox and only knew what he reported to him. That he had this confidence in her is shown by his failure to profit by the advice of Wilbert, the present syndic, who told him three months before the act of mortgage was executed he ought to secure his debt by mortgage, as Mrs. Chapoton owed some claims in the West for flour, etc. There is no evidence in the record of the existence of these debts, or that they had been communicated to Spor to fasten upon him knowledge of the insolvency. He evidently did not believe in their existence, or that Mrs. Chapoton was in failing circumstances.

In three months and six days after the granting of the mortgage Mrs. Chapoton made an assignment for the benefit of her creditors. It is urged that the delay in the assignment was to avoid the effect of Section 1808, Revised Statutes, which declares null and void the mortgage which gives an unjust preference to a creditor within three months next preceding the act of insolvency.

Wilcox & Spor deny that they had any knowledge of the intention of Mrs. Chapoton to take the benefit of the insolvent laws. Chapoton denies that any agreement was made with them to stave off the assignment in order to save the mortgage granted to Spor.

One witness testifies that “Mr. J. G. Spor knew the fact that unless a settlement was effected with the creditors that an insolvent proceeding would be the result as soon as the ninety days expired from the granting of his mortgage. I do not make this statement from hearsay. This matter was discussed in the office of Wilcox & Picton, between Mr. Spor, Mr. Chapoton and myself.” He states on cross-examination: “I acquainted Mr. Spor with the fact that unless Mrs. Chapoton could effect a settlement with the creditors that she would go into insolvency as soon as the ninety days would expire, and this was the reason, was one of the reasons upon which Mr. Spor agreed to loan the money to effect the compromise.”

During the time between the execution of the mortgage and the judicial declaration of insolvency, this witness was the agent of Mrs. Ohapoton, to borrow money in order to effect a compromise with her creditors. Spor denies that he proposed or agreed to furnish her any money for this purpose. We are inclined to believe that' there was no agreement with Spor to postpone insolvent proceedings in order to protect his mortgage. The above conversation at the office of Wilcox & Picton was, if had at all, to influence Spor to advance the money; to impress him with the fact that if the judicial declaration of insolvency was made within three months from the execution of the mortgage it would be null and void. This view is strengthened by the testimony of Mr. Ohapoton, who says that Mr. Wilcox and Mr. Spor refused to advance the money for an adjustment with the creditors, and that the witness, Mr. Lozano, “told us that if my wife went into insolvency before Spor’s mortgage was ninety days old that it would not be worth anything. It was understood between Mr. Lozano and myself as the agent of my wife that we would wait until the ninety days had expired before going into insolvency, and all that was to make the Spor mortgage good.” This was evidently the argument agreed upon to inflence Spor.

We think the preponderance of testimony and all the circumstances in the case show that Spor had no knowledge of the insolvent condition of Mrs. Ohapoton before and at the time of the execution of the mortgage. The testimony is to a great extent conflicting. The question of Spor’s knowledge of the insolvent condition of Mrs. Ohapoton was a fact submitted to the district judge. Under such circumstances we are not disposed to disturb the judgment appealed from unless manifest injustice has been done. Gilkeson-Sloss Commission Company vs. Bond & Williams, 44 An. 841; Payne vs. James & Trager, 45 An.

Judgment affirmed.


author: McEnery, J.

text:
    No. 11,217.
    White Castle Lumber and Shingle Company vs. Alfred Browne, Assessor, and Chas. A. Brusle, Sheriff.
    Shingles, laths, matched ceiling, dressed flooring, sidings, palings dressed and headed, fencing laths, mouldings, car sidings cut to lengths, dressed finished mouldings, easing moulding-base boards, are articles of wood, ready for immediate, convenient and general use, and exempt from taxation under Article 207 of the Constitution.

      APPEAL from the Fourteenth District Court, Parish of Iberville. Talbot, J.

      Samuel Matthews for Plaintiff and Appellant.

      Alex. Hébert, District Attorney, for Defendants aud Appellees.
   The opinion of the court was delivered by

McEnery, J.

The object of this suit is to annul the assessments made of property owned by plaintiffs, employed in the manufacture of articles of wood, exempted from taxation by Article 207 of the Constitution, and assessed for the years 1889, 1890, 1891.

There was judgment for defendant dissolving the injunction to re - strain the sale of said property and plaintiff appealed.

The plaintiff company manufactures shingles, dressed and matched ceiling, floorings, sidings, palings dressed and headed, plastering laths, fence laths, mouldings, car sidings, dressed finished moulding, casing moulding, base boards and railroad ties and lumber.

All the articles of wood mentioned here, except “lumber,” come within the rulings of Jones vs. Raines, 35 An. 998; Martin vs. City of New Orleans, 38 An. 397; and Cypress Lumber and Shingle Company vs. Sheriff, just decided.

The lumber manufactured by plaintiff is not exempt. LeBlanc vs. City of New Orleans, 34 An. 596; Carre vs. City of New Orleans, 41 An. 996.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to reverse that part of the judgment which dissolves and sets aside the injunction issued to restrain the sale of plaintiff’s property employed for the 'years in which it was assessed in the manufacture of articles of wood, stated in this opinion to be exempt from taxation under Article 207 of the Constitution, and as to them it be perpetuated. In other respects the judgment is affirmed, the case being remanded to the lower court to ascertain the amount of capital, the value of the machinery and the property employed in the manufacture of articles of wood for the years in which it was assessed and exempt from taxation under said Article 207, defendants and appellees to pay costs of appeal.


text:
    No. 11,219.
    S. D. Carpenter, President Cypress Lumber and Shingle Company, vs. Chas. A. Brusle, Sheriff.
    “ Articles of wood,” in Article 207 of the Constitution, refers to a particular substance or commodity manufactured from lumber, by hand, by art, or machinery, ready for immediate, convenient and general use, complete in themselves without further manipulation, or work on them.
    Shingles, lathes, cross-ties, dressed lumber, planed, tongued and grooved; weatherboards planed, dressed and ready for general use; mouldings, sashes, doors and blinds, boxes, pickets, turned stair work are such articles of wood, complete in themselves, ready for immediate, convenient and general use without further manipulation or work on them.
    “ Articles of wood,” such as planks, joists, sills, etc., which are intended for parts of a particular structure are not such articles as are intended for general, immediate and convenient use, each complete in itself.
    APPEAL from the Fourteenth District Court, Parish of Iberville. Talbot, J.

      Geo. Wailes and Samuel Matthews for Plaintiff and Appellant.

      Alex. Hébert, District Attorney, for Defendant and Appellee.
   The opinion of the court was delvered by :

McEnery, J.

The plaintiff prayed for and obtained a writ of injunction against the defendant sheriff and ex-officio tax collector restraining him from selling the property of the plaintiff corporation for taxes for the years 1888, 1889, 1890, 1891, on the ground that the same is exempt from taxation under Article 207 of the Constitution, which releases from taxation for a period of twenty years from its adoption “ the capital, machinery and other property employed in the manufacture of furniture and other articles of wood,” etc. On the trial of the injunction, there was judgment for defendant and plaintiff appealed.

In the petition it is alleged that the plaintiff corporation is engaged “ in conducting a saw mill, and shingle mill in both their said factories.”

The testimony shows that the corporation makes shingles, laths, bridge material, fence posts, railroad ties, wood products ready for use as they come from the mill, without any further manipulation. The also make the parts of common plantation cabins, the sills, joists, studding and rafters, sawed to specified lengths and can be used in the construction of cabins without further manipulation. The whole plant is under one roof and the same boilers are used for the plant, one engine runs the saw mill department, and one the shingle department ; but the engine running the saw mill department runs also the lath machinery, the trimming machinery for ties and fence posts and the bolting saw in the shingle department. Forty-five or fifty hands are employed.

The value of the rough lumber, as compared with the total value of the output, is about one-third.

The saw mill and the capital and machinery employed in it are not exempt; City vs. LeBlanc, 34 An. 596; Martin vs. New Orleans, 38 An. 397.

There is nothing in the manufacture of the parts of the cabins to distinguish this case from Carre vs. City, 41 An. 996.

No part of the capital, machinery and property of plaintiff employed in this part of his business is therefore exempt from taxation.

The question then presented is, whether the manufacture of laths, shingles, fence posts, cross-ties and bridge timber for plantation bridges exempts plaintiff’s property, under Article 207, from the tax levied against It.

“ Articles of wood ” refer to a particular substance or commodity manufactured from lumber, by hand, by art, or by machinery, ready for convenient, immediate and general use.

In Jones vs. Raines, 35 An. 996, we held that Art. 207 referred to such articles of wood, which like furniture were made from lumber either sawed or split. They are such articles therefore as are intended for separate use without further manipulation or labor on them and which are complete in themselves. Carre vs. City, 41 An. 996.

In this case we held materials for cabin and rough planks were not exempted. The reason for this decree was that parts of the cabins, joists, sills, planks, etc., were not in themselves complete, separate articles intended for immediate, convenient and general use. They could only be used in the particular structure for which they were intended.

In Martin vs. New Orleans, 38 An., p. 397, following the ruling in Jones vs. Raines, we held that the capital, machinery and property employed in the production of dressed lumber, planed, tongued and grooved, weather-boards, planed, dressed and ready for general use, mouldings, sashes, doors and blinds, boxes, laths, pickets and turned stair-work were exempt from taxation under Art. 207. Each of these articles was manufactured by machinery out of lumber, and complete in itself, ready for immediate, convenient and general use without further manipulation or work on it. All of these were finished products.

Laths, shingles, cross-ties and fence posts are articles complete in themselves, ready for immediate, convenient and general use. The testimony shows that in order to make these articles of wood it is necessary to manipulate the timber after coming from the saw mill. It is cut to a uniform thickness, length and width by machinery other than that of the saw mill proper,

The bridge timber made for plantation bridges come under the ruling of Carre vs. City, 41 An. 996.

The pieces made for the bridges are like the joists, sills, etc., for the cabins. Each piece is not an article of wood complete in itself, ready for immediate, convenient and general use.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to reverse that part of the judgment which dissolved and set aside the injunction issued to prevent the sale of plaintiff’s property, employed for the years in which it was assessed in the manufacture of articles of wood, stated in the opinion to be exempt from taxation under Art. 207 of the Constitution, and as to them it be perpetuated. In other respects the judgment is affirmed; the case being remanded to the lower court to ascertain the amount of capital, and the value of the machinery and property of plaintiffs employed in the manufacture of articles of wood, exempt from taxation under Art. 207 of the Constitution, defendants and appellees to pay costs of appeal.

Mr. Justice Breaux recuses himself in this ease.


text:
    No. 11,216.
    The Rosedale Cypress Lumber and Shingle Company vs. Chas. A. Brusle, Tax Collector, and Alfred A. Browne, Assessor.
    Same as in case oí Cypress Lumber and Shingle Company vs. Bruslé, Sheriff.
    APPEAL from the Fourteenth District Court, Parish of Iberville. Talbot, J.

      Samuel Matthews for Plaintiff and Appellant.

      Alex. Hébert, District Attorney, for Defendants and Appellees,
   The opinion of the court was delivered by

McEnery, J.

The plaintiff brought this suit to annul the assessment of its property, and obtained an injunction restraining the sale of its property, on the ground that it was employed in the manufacture of articles of wood, and exempt from taxation under Art. 207 of the Constitution.

The plaintiff company employs its capital, property and machinery exclusively in the manufacture of shingles.

Its property is therefore exempt from taxation for the years in which it was employed in the manufacture of shingles, and for which it was assessed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that the injunction which issued to restrain the sale of plaintiff’s property be perpetuated — the defendants to pay all costs.

Mr. Justice Breaux recuses himself in this case.


text:
    No. 11,215.
    Plaquemine Lumber and Improvement Company, Limited, vs. Alfred A. Browne, Assessor, and Charles A. Brusle, Tax Collector.
    Shingles, laths, pickets, cross-ties, dressed flooring, moulded window casing* dressed and beveled weather-boarding, ear roofing, car siding cut to length, are articles o£ wood ready for immediate and convenient use, and are exempt from taxation under Article 207 of the Constitution.

      APPEAL from the Fourteenth District Court, Parish of Iberville. Talbot, J.

      Samuel Matthews for Plaintiff and Appellant.

      Alex. Hébert, District Attorney, for Defendant and Appellee.
   The opinion of the court was delivered by

McEnery, J.

The plaintiffs own three mills and manufactories, the Morning Glory, Homestead and Indian Village.

The Morning Glory is exclusively employed in the manufacture of shingles.

The Homestead is a planing mill, turning out dressed flooring, ceiling, wainscoting, all kinds of mouldings, all kinds of window casing, car roofing, car siding cut to length, all kinds of pickets that are used in trade, both beveled and dressed, weather-boarding, dressed and beveled, dressed lumber and plastering laths, all of which are finished products, ready for use when they leave the mill.

The Indian Village Mill manufactures lumber, shingles, laths, railroad material and pickets, and much of its lumber is sent to the Homestead Mill, there to be converted into-finished products. The railroad material is not described. We are therefore unable to say whether it is exempt or not.

All the articles of wood mentioned above, except the railroad material,” bridge timber and lumber, are exempt under the rulings in the case of Martin vs. City of New Orleans, 38 An. 397, and Cypress Lumber Co. vs. Bruslé, Sheriff and Tax Collector, and White Castle Lumber Co. vs. Browne, Assessor, and Bruslé, Sheriff and Tax Collector, just decided.

This case will be remanded to take evidence as to the character of the railroad material to ascertain whether it is an article of wood, as decided in the cases referred to. If so, it is exempt, and that part of the decree perpetuating the injunction will cover it also. If not, it will fall under that part of the decree affirming the judgment ap - pealed from; and also to ascertain the amount of capital, the value of the property and machinery employed by plaintiffs in the articles of wood .exempt from taxation under Art. 207 of the Constitution.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to revérse that part of the judgment which dissolves and sets aside the injunction issued to prevent the sale of plaintiffs’ property employed for the years in which it was assessed in the manufacture of articles of wood, stated in the opinion to be exempt from taxation under Art. 207 of the Constitution, and as to them it be perpetuated. In other respects the judgment is affirmed; the case being remanded to the lower court to ascertain the amount of capital, the value of the machinery and property of plaintiffs employed in the manufacture of articles of wood exempt from taxation under said Art. 207 of the Constitution. Defendants and appellees to pay costs of appeal.

Mr. Justice Breaux recuses himself.


author: Breaux, J.

text:
    No. 11,207.
    Mrs. M. E. Caire vs. Her Creditors.
    A crop Ranging by the roots when the usufruct is opened belongs to the usufructuary.
    If tlie surviving partner in community does not choose to exercise her rights as usufructuary, but qualifies as administratrix of the estate of her husband and administers tlie affairs of the community, for whose account the fruits hanging by the roots are gathered and sold in the market, and the proceeds applied to the payment of the debts (leaving a balance due the community by the administratrix, which is placed to the credit of the community on her final account duly homologated), the syndic of her estate has no authority collaterally to attackthejudginent of homologation, and recover funds as belonging to the usufructuary disposed of by her prior to her insolvency.
    The survivor in community, transferee, is subrogated to tlie mortgagee’s rights and entitled to the balance after its deduction upon settlement of accounts.
    APPEAL from the Fourteenth District Court, Parish of West Baton Rouge. Talbot, J.

      Samuel Matthews for the Syndic, Appellant:
    All rights and property belonging to the insolvent may be recovered by the syndic, whether on the schedule or not. 11L. 531, Muse vs. Yarborough; 12 L. 109, Levy vs. Jacobs; 2R. 123, West vs. Creditors; 9 K. 32, Dwight vs. Smith; 4 An. 490, Dwight vs. Simon.
    No heir of a father, major or minor, can dispute a bona fide mortgage on community property executed by him during the life of the mother. 31 An. 450, Dupre vs. Soye et ai.

      A crop hanging by the roots when the usuirueb is opened belongs to the usufructuary. R. C. 0., Art. 546 (538); 41 An. 620, Tutorship of Kate Jones.
    The usufructuary can advance money to discharge mortgage incumbrances on property subject to his usufruct, and at the end of the usufruct it must be returned to him without interest. R. O. C., Arts. 584 (578), 585 (579); Succession Eitzwilliams, 3 An. 489.
    The usufruct of the insolvent, Mrs. M. E. Caire, expired when her rights as usufructuary were sold by order of court, in these bankruptcy proceedings. R. O. 0., Art. 617 (612).
    The mortgage debt, being a community debt, and discharged by the surviving spouse, she became subrogated to the mortgagee’s rights against the share of her husband in the property. Shropshire vs. His Creditors, 15 An. 705.
    The heirs of the husband became unconditional heirs by being sued and suffering judgment to go against them, and they must pay their share of this debt. R. O. C., Art. 1000 (994); 31 An. 450, Dupre vs. Soye ot al.

      Cross & Cross contra.

   The opinion of the court was delivered by

Breaux, J.

The syndic of the creditors of Mrs. M. E. Oaire sues to recover from the succession of her late husband, Jacques Oaire, the sum of 12554.71.

The son of Jacques Oaire and Mrs. M. E. Oaire (J. A. Oaire) was indebted to Antoine Oaire in the amount of $12,000, represented by six promissory notes signed by J. A. Caire as maker.

Jacques Oaire mortgaged his plantation and other lands as security for their payment.

The mortgager died in October, 1882. His widow administered his succession. She presented, it is stated, in the account, a “final tableau and account” of her administration of the property, “the whole of which belonged to the community of acquests and gains.”

The remainder, after the payment of the plantation expenses, of the proceeds of the crop of 1882, is applied to the payment of the debts of the community.

Though the crops of the community were hanging by the roots when her husband’s succession was opened, and though owner as usufructuary, she did not claim any part of the amount for which they sold.

As administratrix she took possession and disposed of the proceeds of the crops of 1882 without the least reference to any possible right as usufructuary. They were of the community, and in homologating her account she was ordered to pay them as community funds.

One of the series of notes secured by mortgage, as before mentioned, was paid by Mrs. M. E. Caire and carried by her to her credit on her account homologated on the 16th January, 1884. The balance to the credit of the community by that account was $1895. On that day, under the terms of the judgment, she was placed in possession as usufructuary. The right of usufruct is not referred to in any of the proceedings preceding that date.

In 1887 Mrs. M. E. Caire made a surrender of her property, including the usufruct. Antoine Caire, holder of the last note of the series — the one due January 15, 1886 — instituted an action in the insolvency proceedings to foreclose his mortgage.

The syndic of the creditors of Mrs. M. E. Caire intervened and claimed that she, the insolvent, had paid three of the notes due by J. A. Caire, the maker, and that she was therefore subrogated to the rights of Antoine Caire, the original holder to the extent of one-half, i. e., the community half of her late husband. J. A. Caire, the maker of these notes, was declared insolvent on the 15th of January, 1886.

In 1887 the syndic of his creditors filed an account.

Mrs. M. E. Caire, not at the time an insolvent, opposed this account and alleged that the second of the series of notes was paid by her.

On the trial of the opposition, a witness, whose testimony is ap - provingly referred to by the .syndic in the case at bar, states that Mrs. M. E. Caire paid two of the notes.

The claims for an additional amount of $1000 was paid in a settlement referred to by this witness.

The syndic in the suit at bar appears in the insolvency proceedings of Mrs. M. E. Caire against her creditors, and alleges that three, not two, of the series of notes had been paid by her, and that she was entitled to a credit of $6000, one-half of which should form part of the assets of her insolvency.

He adds that the heirs of Jacques Caire owe the insolvent estate of Mrs. M. E. Caire, administered by him, the amount of one-half of the notes paid by her, it being their debt by the effect of their inheritance, less the one-half of $891.58, paid thereon by the syndic of the estate of J. A. Caire, the maker of the notes.

On the trial copies of records of the insolvency proceedings, before stated, were introduced in evidence and oral testimony was heard.

The amount which should be debited to Mrs. M. E. Caire, collected from the insolvency estate of J. A. Caire, and paid to Antoine Caire, through her, is not clearly shown.

. We have considered the whole of the testimony upon the subject and have fixed a total we think it sustains. This total, however, is not to the credit of Mrs. M. E. Caire, for it was due to the community, and was applied to the payment of a debt of the community. The principal ground of contention argued by the counsel for the syndic is, that the community which existed between the insolvents, Mrs. M. E. Caire and Jacques Caire, her husband, was dissolved by his death in 1882, and that the crop, hanging by the roots, at the time, belonged to the usufructuary.

There is no question of the correctness of the principle invoked, and that at the opening of the succession of her husband there was a right of usufruct subject to her acceptance.

She did not avail herself of the right.

The syndic is bound by her abandonment of the usufruct at a time when she was not insolvent.

He can not absolutely ignore the judgment of homologation of her account and the disposition she made of the proceeds.

She judicially alleged that it was the property of the community, upon which the court has acted.

The syndic is without authority to ignore the judicial allegations made and collaterally to question the binding effect of the judgment.

Commenting upon Article 505 of the Civil Code of Prance (546 of ours) Marcadé says:

“ Ma-is pour que Vusufruitier fasse les fruits stems, il faut qu’il les pereoive, et qu’il les pereoive en meturité.” Vol. 2, p. 455. Et puisque e’est soulement par la percoption que Vusufruitier fait les fruits stems, notre artiiele s’exprime done in exaetement’’quand il dit que les fruits pendant lors de Voverture de Vusufruit appertiennent & Vusufruitier; il entend soulement par la que eet nsusfruitier a la droit de les pereevoir. Ib. p. 456.

Mrs. M. E. Caire, the usufructuary, became the owner, and had the right to gather the crop for her account.

This she did not elect to do.

The crops were gathered by and delivered to the community as its property.

Her waiver binds the syndic in these proceedings.

There is no question as to the two notes. They were paid by Mrs. M. E. Caire, and she was thereby subrogated to all the rights of the creditors of the succession of her late husband to the extent that payment was made by her, with her funds, and not with amounts collected by her from the insolvency estate of J. A. Caire.

The record does not disclose that she became the owner of the third note as alleged; or that it was paid by her.

Her claim in judicial proceedings prior to her insolvency was for two notes.

The conclusion is irresistible, that if she had owned the third note it also would have been claimed.

This reduces the issue to two notes: $4000. One of the notes constituted part of the $16,804.29 to her credit in her account as administratrix. It was therefore paid in the settlement of that account.

This brings us to the second note, of $2000. The balance due to the community, as per Mrs. M. E. Oaire’s final account, was $1895; balance due by the community, $105.

We must therefore affirm the judgment.

Judgment affirmed at appellant’s costs.

Rehearing refused.


text:
    No. 11,218.
    Thomas E. Matthews vs. John A. Alsworth.
    Unless the lessor timely claims damages suffered under the first lease, after a second has Tbeen made, with the same lessee, there is acquiescence, which precludes a claim for damages.
    The purchaser is presumed to buy the accessory rights to the property transferred, but damages suffered by the vendor, before the sale, are a personal right not transferred, and can not be recovered without an express subrogation.
    The purchaser acquires rights to rent from date of sale, and does not take prior rents due.
    APPEAL from the Fourteenth District Court, Parish of Iberville. Talbot, J.

      Gus. A. Breaux, Samuel Matthews and Alexander Hébert for Plaintiff and Appellant.

      B. B. Forman for Defendant and Appellee:
    1. The sale of property carries with it all actions appurtenant to the property necessary for its enjoyment, but actions for damages suffered by the vendor before the sale are personal to him, and can not be recovered by the purchaser without express subrogation. Clark vs. Warner, 6 An. 408, cited with approval in Payne vs. James, 42 An. 230.
    2. The petition must contain a clear and concise statement of the object of the demand, as well as of the nature of the title, or the cause of action on which it is founded. It must not contain any insulting or impertinent, expressions. C. P. 172,'sees. 4 and 5.
    3. The allegation that the plantation has not been run in such a manner as to increase its fertility is to aver a passive violation of a contract to do, and a putting in default is essential to an action. C. 0.1933.
    4. The sale of a litigious right to a lawyer is void. O. C. 2447.
   The opinion of the court was delivered by

Breaux, J.

The defendant was the lessee of Trinity plantation in 1887, and continued to be the lessee from year to year until 1890, when the owners, Mrs. Emory Olapp and her daughter, Mrs. Amory, made a new lease of the place to the defendant for five years, until 81st December, 1895, at an annual rental of $600 a year, represented by five notes, due 1st December of each year.

It embraced 1200 acres on the west of the Bayou Grosse Téte, and 1500 acres on the east, together with all the buildings and improvements, and fourteen mules, also the farming implements.

The lessor obligated himself, by care or cultivation, to improve the land from year to year, and to leave the fences and ditches in the condition received.

On the 5th January, 1892, defendant’s lessors sold their lands on the right bank and west side of the bayou, together with all the improvements thereon — said place is said to be “ Trinity plantation ” proper — to the plaintiff for the price of $10,000.

The vendors sold free from encumbrances, “except the lease, to the defendant of October, 1890;” which they transferred to plaintiff in the deed transferring the plantation, from which we extract:

Said lease, and all the aforesaid conveyor’s rights into or under the same, are transferred hereby, and simultaneously herewith, to the conveyee herein; this conveyance is made with complete transfer and subrogation of all rights and all actions of warranty or otherwise against all former claimants, proprietors, tenants or warrantors of the property herein conveyed.”

Suit was instituted by plaintiffs on the 21st January, 1892, for a dissolution of the lease, for alleged violation; for compensation for diminution in the value of the plantation, and for the rent of the year 1891.

The plaintiff alleges substantially that after the defendant went into possession as lessee the machinery in the sugar house was sold; by whom it is not stated.

That there were a warehouse, cane carrier, shed, cisterns,, cabins, carts, plows, gears, and fourteen mules, live oak trees, pecan and magnolia, a flower garden and an orchard on the place; that the lands were well drained and under fence.

He complains of defendant’s bad husbandry; that he has taken away fencing, allowed the drains to close, destroyed the garden, orchard and trees.

That during his possession, from 1887 to date of suit, he has caused great deterioration in the value of the place, and that he will, as lessee, continue to cause waste and destruction.

Plaintiff, in his brief, argues that he has succeeded, by his purchase, to his vendor’s right of action for damages.

He also claims the rent for the year 1891, which was represented by a note for $600, maturing December 1, 1891, by reason of the purchase of the property, and the transfer of the lease therewith of October, 1891.

In reference to rents, part of the recital of the deed of sale reads:

“The above referred to lease to A. Alsworth, and herein transferred, has been delivered to the vendee, and the said Robert S. Day guarantees to him the delivery of the rent notes within a delay of thirty days from the date hereof — that is to say, those due December 1892, 1893, 1894 and 1895.”

In support of his claim to the rent note of 1891, the plaintiff, in his petition, says “ that it was the mutual understanding, not expressed, but implied, of both your petitioner and of Charles B. Amory, acting as the agent of 'said owners, that said agreement to sell and buy, consummated as aforesaid on October 19, 1891, should be immediately carried out by deed during that same month, but delays were found to be necessary, because of the absence in Europe of the said Mrs. Clapp, and for that reason only said deed was not made until January 5, 1892.”

That the defendant was notified not to pay the note; that he paid it to his (plaintiff’s) vendors.

He alleges that the defendant is in a condition of insolvency.

The defendant interposed an exception of no canse of action, against the demand for damages and other violations of the lease alleged of a date prior to January 5, 1892, and against the claim for $600 rent for 1891, and that plaintiff’s allegations are vague and indefinite.

The judge of the District Court dismissed the suit for damages prior to 1892, and for the rental of 1891, and decided that the allegations were not such as to enable plaintiff to maintain his action for causes of date subsequent to 1892. As to the latter — i. e., causes of date subsequent, leave to amend was granted.

Plaintiff’s theory in preparing his petition was that all rights of action for damages and all violations and rents against former owners and against all tenants were assigned and transferred to him.

Upon that theory, he alleged that the'lease had been violated prior to January, 1892, and that damages had been committed prior to that date. It is not shown that any right of action under the first lease, that preceding the lease of October, 1890, was transferred.

There is no reference whatever made to this prior lease in the deed of sale to plaintiff.

The lessor to the defendant had some time prior to their sale to plaintiff renewed the lease.

At the renewal no rights were reserved, and no reference to any violation of the lease.

They must, under the circumstances, be held to have acquiesced in defendant’s acts as a lessee.

The deed of sale clearly transfers the conveyors’ rights into or under the same” — i. e., under the lease of October 9, 1890.

This can not be interpreted to include any rights under prior leases.

The inconsistency of vendor would be great if they had transferred a right of a date preceding the last lease.

This disposes of all claims of date prior to the present lease and brings us to claims of alleged violations of the lease of October 9, 1890.

They are not distinctively alleged, particularly as to dates.

The petition leads to the unavoidable inference that all violations of the lease preceded the date of the last lease.

We do not express any opinion as to “rights” under the lease as expressed in the deed of saledo plaintiff, as to whether it is possible to prove alleged violations from October 9, 1890, to January -, 1892 (the date of the sale to plaintiff), as cause for dissolving the lease. The allegations of the petition do not show that an absolute transfer and subrogation of all rights are claimed so as to enable plaintiff to recover a judgment dissolving the lease in this suit.

Though it may be that violations of the lease preceding plaintiff’s purchase of the place may be proven in support of the action to dissolve the lease, we think a different rule applies to damages.

Ordinarily the sale of a thing will pass all such things as are directly incident to it and necessary to its enjoyment. O. O. 2461.

The lessee is liable on the covenants of his lease, and to these unquestionably plaintiff is subrogated from the date of his purchase.

By the use of the words “right into or under the lease,” the plaintiff did not become an assignee for damages of date prior to the sale. When a party sustains a loss by reason of a breach of contract, he has a right to be placed in the same situation, by payment of damages, as if the contract has been performed.

If plaintiffs’ property had been damaged prior to the sale, they had a right of action.

It was not an accessory right, which passed like a right of servitude, for instance, without description of or reference to the claim.

The property transferred is described. We can not presume that there were additional rights in the nature of damages, the deed being silent as to damages.

Lastly, plaintiff ciaims the rent for the year prior to his purchase. He was not the holder of the note which represented the rent.

It was in the possession of the drawees, who had the right to collect it, having transferred the notes representing the rents of subsequent years and not the note for rents of 1891.

The implied transfer of this note and the alleged ratification of an understanding of a date some time anterior are not borne out by the deed.

The rights of the vendors and the vendee date from the day of sale. The petition and the declarations of the deed do not include the rent for 1891.

Plaintiff’s rights are reserved by the judgment appealed from.

Judgment is affirmed at appellants’ costs.


text:
    No. 11,270.
    George J. Reily & Co. vs. Their Creditors. George J. Reily vs. His Creditors. Consolidated.
    Tlie insolvency of the partnership and that of the individual partner having' by an order of court been consolidated in one case to be decided in one judgment, form but one suit.
    The separate creditors having been compelled by the consolidation to prove their claims in these consolidated proceedings, have the right to vote for the discharge or against the discharge of the debtor.
    The separate ereditors of one of the partners have an interest in his estate in the partnership, for, if there is any balance of the estate of the partnership after-payment of its debts, such balance must be divided and appropriated to and among the separate estates of the several partners according- to their respective rights and interest therein, and the sum so appropriated to the separate estate of each partner must be applied to the payment of the separate debts.
    APPEAL from the Thirteenth District Court, Parish of East Feliciana, Brame, J.

      W. F. Kernan for George J. Reily, Appellee.

      John 3. Stone and Olegg & Thorpe for John Viers, Syndic, and H. & C. Newman, Appellants.
   The opinion of the court was delivered by

Breaux, J.

The commercial firm of George J. Reily & Co., composed of George J. Reily and John B. Dunn, made a surrender of their partnership property and filed a schedule of its assets and liabilities.

A meeting of the creditors of the firm was held and elected a syndic, and exempted Mm from furnishing bond.

Subsequently, George J. Reily individually made a surrender of his property and filed a schedule of Ms assets and liabilities.

The syndic of the insolvent estate of the firm of George J. Reily & Co. moved to consolidate the insolvent proceedings of George J. Reily, individually, with the insolvent proceedings of the firm of which he was a member.

A creditor to whom Reiley individually owed more than $20,000 opposed the motion.

The court sustained the motion, and the insolvency proceeding’s were consolidated.

From the order consolidating the two insolvencies, the provisional syndic of the insolvency of George J. Reily, individually, appealed.

The creditor who opposed the motion to consolidate in the District Court also appealed.

This court affirmed the order consolidating the proceedings in insolvency. Reily vs. Creditors, 44 An. 370.

The syndic of the insolvent firm of Reily & Co., after the case had been remanded in compliance with the decree of this court, took charge of the consolidated suits and administered as one insolvency the two insolvencies, without objection on the part of any of the creditors.

At a meeting of all the creditors, those of Reily individually and those of Reiley & Co., a majority in number and amount, it is alleged, voted for the discharge of George J. Reily from his debts.

George J. Reily thereupon sued out a rule on H. & C. Newman and other creditors of the firm of George J. Reiley & Co. to show cause why the proceedings of that meeting should not be homologated and why he should not be discharged from his liabilities.

The defendants in rule consent to the discharge of George J. Reily, individually, in so far as his separate creditors are concerned, but deny his right to a discharge from the debts of George J. Reily & Co.

They oppose the discharge on the grounds:

That the creditors at the first meeting of creditors refused to vote for the discharge of the debtor George J. Reily & Co.; that it was not lawful for the creditors of George J. Reily & Co. to participate with the creditors of the partnership on the petition for a discharge, the firm being a different person from the partner, and his separate creditors not its creditors.

The District Court rejected the demand of the creditors, and disallowed the objections and oppositions urged against the discharge of George J. Reily, individually, and as a member of the partnership.'

As to the alleged refusal to discharge the partnership at the first meeting of creditors, if the proceedings of that meeting were homologated, we have not found evidence of the fact in the record.

Granting that they are homologated, the consolidation of the insolvencies, at the instance of the syndic, representing the creditors of the partnership and in their interest, resulted in a change in the number of the creditors called into the partnership insolvency, and in an increase of the amount of assets and liabilities of that insolvency.

The consolidation of the insolvencies has given rise to questions not affected by the result of the first meeting.

The refusal of the creditors of the partnership at their first meeting could not operate as a bar to a second meeting of the creditors of the consolidated insolvencies.

The order of consolidation is irrevocable.

The separate creditors and the debtor can not be denied any right they had prior to the consolidation.

One of the rights of the debtor was to a discharge from his separate indebtedness, upon a vote of a majority in number and amount.

The order consolidating the insolvencies was issued upon the theory that the rights of all concerned would continue, and be exercised in[the joint proceedings as in one case, to be decided in one judgment.

It was not contemplated that the separate creditors would be excluded from participation in all proceedings in which they were concerned.

The extent of these rights of the creditors, and the effect of their vote for a discharge, arises in the determination of the objection interposed to their participation in the vote.

The principal ground of contention is that they are not the creditors of the partnership.

Both the creditors of the firm and the separate creditors voted at the second meeting.

The debtor placed all his debts on his bilan. A majority in number and amount voted for his discharge.

They were all his creditors, and the result of the vote secured to him the right to his discharge. O. O. 2177.

Although the separate creditors are not the creditors of the partnership, they are not without interest in the administration and the disposition of its assets; an interest which can be represented in the proceedings, even to the extent of voting for the discharge of the debtor, especially when consolidation has been ordered, as in the case at bar.

Upon this point the jurisprudence oí the United States Courts, and the bankruptcy laws, until recently in force, clearly establish the interest of the separate creditors, and have settled the principle that, although the creditors of the partnership and the separate creditors are not entitled to come in pari passu upon the joint and separate estates of a bankrupt for a dividend thereof, they are entitled to prove their claims against his estate for the purpose of assenting to or dissenting from his certificate of discharge, which will operate as a discharge against his joint and separate creditors. Story on Partnership, Sixth Ed., p. 608.

The provisions in the United States Bankrupt Act of 1867, concerning partnerships, are contained in the thirty-sixth section of the act, and clearly follow the doctrine of the texts of Story, Gow, Cook, Deacon and Lindley on the subjects of partnerships and their bankruptcies.

The act on this point reads: “If there shall be any balance of the separate estate of any partner, after the payment of the separate debts, such balance shall be added to the joint stock for the payment of the joint creditors; and if there shall be any balance of the stock after payment of the joint debts, such balance shall be divided and appropriated to and the separate estates of the several partners, according to their respective rights and interests therein, and as it would have been if the partnership had been dissolved without any bankruptcy ; and the sum so appropriated to the separate estate of each partner shall be applied to the payment of separate debts; and the certificate of discharge shall be granted or refused to each partner as the same would or ought to be if the proceedings hadbeen against him alone. ” (Italics are ours.)

The State insolvent laws have not in terms indicated the rights of the partners in matter of their discharge, on the vote of the joint and separate creditors.

In interpreting these statutes we have followed principles approved by most worthy commentators and which were practically tested when the bankruptcy laws were in force. They throw great light upon the subject.

The district judge has limited his decree to the rejection of the de - mands of appellants. He has not followed the rejection by a decree homologating the proceedings of the meeting of creditors.

He did not pass upon the application for a discharge.

We will not amend the judgment, as it would involve the decision of an original question on appeal.

Judgment affirmed at appellants’ costs.