author: Manning, C. J. DeBlanc, J. DeBlanc, J.

text:
    No. 5435.
    Justus Francke vs. His Wife.
    In a suit for interdiction the fullest investigation into the motives of the plaintiff will be allowed.
    In passing on the issue of interdiction, the court will not be controlled by the opinions of experts, but giving to them a respectful consideration, and to every fact bearing on the issue its legitimate weight, will form, and decree its own conclusions.
    Mere weakness of mind in the defendant will not, justify a decree of interdiction, when in view of all the evidence adduced, such decree is not necessary either for the protection of the defendant’s property, or person, or of society,
    ^JPPEAL from the Second District Court, parish of Orle’ans. Tisyof,

      T. Gilmore <& Sons, and J. L. Tissot, for plaintiff and appellee.

      Gustave A. Breaux, for defendant.
   The opinion of the court was delivered by

Manning, C. J.

Justus Francke seeks the interdiction of his wife, née Pauline Landreaux, for habitual imbecility and insanity.

Their marriage was in 1855. In the following year the wife was delivered of a still-born child. In 1857, at the birth of a daughter, she had puerperal convulsions and epileptic fits (attaques d’éclampsie). She recovered, and five more children were born, all of whom survive, and are well formed, and present no trace of constitutional informity. In 1862 the symptoms of mental disturbance appeared, producing irregular and singular conduct, which increased during the following year to such an extent that her mother urged her husband to have her eared for. Medical aid was interposed in 1868, and she was sent to the asylum for the insane in 1869. She was released from that place by a writ of habeas corpus at the instance of her mother in 1870, and has remained under her care ever since. This action was instituted in January, 1876.

The first answer, filed in February, was merely formal, but in May it was supplemented by another, alleging that the wife had instituted against the husband a suit for divorce, prior to his petition for'her interdiction, and that the interdiction was sought only to prevent the divorce— that her mental trouble was caused by- the cruel treatment of her husband, whose criminal connection with a concubine under the marital roof was neither concealed from her nor her friends, and that through the care and kind attentions of those friends she had now sufficiently recovered a healthy tone of mind as to appreciate the peril and the disgrace of her position, and to take the proper legal measures to extricate herself from it.

Objection was made to the filing of this supplemental answer, but it was permitted, the court being of the opinion that the more regular •course would be for objection to be made to the testimony to bo offered under it, and accordingly objection was thus made, the testimony admitted, and a bill reserved. The reasons of the court do not appear in the bill, but we think the ruling is correct. In actions for the interdiction of a party for insanity, investigation of the motives of those who are provoking the interdiction are of the utmost consequence. The court will guard with peculiar care the alleged lunatic from interference, springing from a hostile motive, and will weigh with more precision the evidence of lunacy, if the person by whom it is tendered appears to be actuated by a sinister intent.

A commission of physicians was appointed to examine Mrs. Francke, three of whom made a joint report in June, 1876, and the fourth later. Another commission of four other physicians reported in July. These reports, and the testimony of many witnesses, are before us. Before summing up the evidence, it is necessary to speak of the insanity or imbecility or infirmities which the Code (Civil Code, articles 382 and 409, new numbers 389 and 422,) pronounces to bo cause for interdiction.

Psychologists have vainly attempted to define insanity. The vulgar notion is, that it consists in an entire deprivation of reason and consciousness, but observation has shown that the insane often possess both of those mental qualities. Locke defined a madman to be one who reasoned correctly from false premises, but that would embrace a very-large class who are commonly supposed to be sane. Lord Eldon has the credit of originating the phrase, “ of unsound mind,” and it is a legal, not a medical, phrase. It is said, that no definition can include all the varieties of the disorder, but the power which is most manifestly deficient in the insane is generally the controlling power of the will. Taylor’s Medical Jurisprudence, 2 vol. 476, et seq.

It is conceded in this ease that the proposed interdict is net insane, and that is the concurrent testimony of the examining physicians.

Imbecility is idiocy in a minor degree. An authority on this subject (Bay, quoted by Wharton & Stille, Medical Jurisp., 1 vol., section 314,) arranges the diseases included in the general term mental derangement under two divisions, founded on two very different conditions of the brain ; the first being a want of its ordinary development, the second a lesion of its structure subsequent to its development, in the former of which divisions he places idiocy and imbecility, differing only in degree. The same author informs us that “ in imbecility the development of the moral and intellectual powers is arrested at an early period of existence. It differs from idiocy in the circumstance that while in the latter there is an almost utter destitution of every thing like reason, the subjects of the former possess some intellectual capacity;” and, further on: “No cases subjected to legal inquiry are more calculated to puzzle the understandings of courts and jmies, to mock the wisdom of the learned and baffle the acuteness of the shrewd, than those connected with questions of imbecility. * * ' * The real capacity of the imbecile’s mind is to be estimated, not from any single trial, but by a careful appreciation of all its'pow'ers.” Ray’s Medical Jurisp., sec. 63, 121-122.

Esquirol, classifying those unsound of mind, says :

“Néanmoins, en étndiant les faits, on peut classer les idiots en deux series dans lesquelles ils se groupent tous. Dans la premiere sont les imbéciles; dans la secondo les idiots proprcment dits. Dans la premiare, l’organization est plus ou moins parfaitc, les facultes sensitives et iutolloetuelles sont pou développses; les imbéciles ont des sensations, des idéos, de la memoire, des affections, des passions, et memo des penchants, mais a un faiblo degré. Ils sentont, ils pensont, ils parlent, ct sont susceptible do quelque education.” Maladies Montales, 2 vol. p. 288.

And last, the author just quoted says : “The term idiot is applied to those who from original defect have never had mental power. Idiocy is marked by congenital deficiency of the mental faculties. There is not hero a loss or- perversion of what has once been acquired, but a state in which, from defective structure of the brain, the individual has never been able to acquire any degree of intellectual power. * * * ■ There is a state scarcely separable from idiocy in which the mind is capable of receiving some ideas, and of profiting to a certain extent by instruction. Owing, however, either to original defect, orto one proceeding from arrested development of the brain, the minds of such persons are not capable of being brought to a healthy standai'd of intellect. This state is called imbecility.” Taylor’s Med. Jurisp. 2 vol. 502. That is the state of Mrs. Francke, according to the counsel for her husband, and the physician who made a separate report confirms it: “ Madame Francke est dans l’imbáciliitá, dans cette imbócillité que la médecine légale regarde comme faisant partie integrante de Talienation mentale. II est, done, impossible d’admettre qu’elle est sainé d’esprit; elle est, au contraire, alienee pour le médecin legiste.” The joint report of the three physicians appointed with Dr. Faget is less pronounced than his, and avoids (as one of them insists) the declaration that she has reached the state of imbecility. Their conclusions are these:

“lo. Que Madame Francke est atteinte d’un affaiblissement des qualités intelleetuclles qui va jusqu’a l’imbécillité.

“ 2o. Qu’elle est incapable de se guider dans la vie e.t do diriger ses intéréts. •

“ 3o. Qu’il serait dangcreux de lui confier l’administration de sa fortune, ot de lui laisser l’oxercice de ses droits civils.

“4o. Qu’il y a lioux, par consequent, de prononcer son interdiction.”

We do not propose to accept the conclusions of others as to the decree which a tribunal should' pronounce upon a given state of facts, but to take the facts themselves, examine their relation to each other, and their bearing upon the grave matter we have to determine. Nor can we be guided or influenced solely by the opinions of medical men who have made the examination of the proposed interdict at a single interview or under the unfavorable circumstances of a consciousness on the part of the sufferer that she is undergoing a test of her sanity. We take the several reports of the physicians as worthy of the most careful examination and the most respectful attention, to be weighed along with other testimony, and all to be considered together in assisting us to our own conclusion. So careful is our law to surround proceedings of this nature with all safeguards, that it permits this court to hear new proofs, and to question the person whose interdiction is sought, in order to ascertain the state of her mind. Civil Code, art. 389, new number 396.

The four other physicians, in giving the resume of their deliberations, conclude—

“ lo. Madame Francke n’est pas atteinte d’alienation mentale.

“ 2o. Jusqu’en 1869, elle n’a presenté aucun signo d’idiotie ni d’imbóciilitó.

“3o. L’imbécillité qui est une infirmité congénitale, n’ayant pu se declarer brusquement a l’age de trento-quatre ans, il reste prouvé que Madame Francke n’est point imbecile.

“ lo. Relates to the source of disorders of the jDatient.

“ 5o. Ses facultés intellectuelles sont affablies, la mémoire incertaine. Madame Erancke ne pent pas veiller a ses intérets personnels (ni prendre, soin de sa personne,”) ajoute le Dr. Boyer.

The eight physicians are thus unanimous in pronouncing Mrs. Erancke not insane, and four of them declare that she is not imbecile. They all concur in saying that-she can not take care of her personal interests, or manage property — she is a pauvre d’esprit. It is worthy of remark that a leading idea in the minds of the medical experts who thus examined Mrs. Erancke was that a part of their function was to ascertain if she was capable of transacting business, of making- or understanding accounts, or of supervising or directing the management of property. Unquestionably, the proof is conclusive that she can do nolle of those things. Her weak intellect, shaken from its poise during the rude ministrations of Mrs. Lause in 1868, toppled over, and her disordered faculties ran riot with the wildest vagaries. This folie reached such a point in 1869 that a certificate cValiénation mentóle chronique was given by Dr. Delóry, and her confinement in the asylum was effected, and Sister Angele, a ministrant there, testifies there was no improvement in her condition during the year of her detention.

Of her condition since, the most important witnesses are her mother, with whom she is living, and Dr. Landry, her medical attendant for seven years. And it is impossible, and we may add improper, not to attach greater importance to the information given by those who daily surrouiu l a person, and whose watchful supervision is constant, than that given by those who approach one at rare intervals and under exceptional circumstances, whose mission, by its very object, predisposes the nervous and craintive patient to increased tension of the feeble mental power loft to her.

The change in Mrs. Erancko’s condition a month after her release from the asylum was, in the opinion of her husband, miraculous. The family physician says that her daily necessities do not require constant super-, vision, and that he has not seen any tiling in her that produced that impression since her release. He is convinced that she could go out and make small purchases at the stores, and recollects her giving an account to her mother of what she had been buying; thinks she could go out upon the streets; the suit for interdiction has produced upon her an extreme fear of having to return to her husband’s house, and of having to leave her mother, to whom she clings with childlike tenderness and earnestness. The mother finds her submissive and quiet, receives from her assistance in the minor, household cares, and permits her to occupy a separate room, the arrangements of which she personally makes. Jules Lambert, the step-father of Mrs. Erancke, and Mrs. Block have lived in the same house with her several years immediately preceding the hearing of the. cause below. They speak of her conduct and appearance-as not in any manner calculated to attract special notice, and say that her daily behavior is characterized by propriety and decorum. The weakness of her mind is conceded by all.

In noting- the declarations of the various persons touching the mental condition of Mrs. Erancke, we shall not omit that of our learned brother who tried the cause, whose observations upon the questions involved, whether of fact or of law, have attracted our respectful attention. Ho found her intellectual faculties very weak, and her memory uncertain. She confessed her inability to manage her own affairs, but the judge would not attempt upon such a cursory examination to define her mental condition, and relied more upon the physicians than upon himself. His judgment upon the law ánd the evidence was for her interdiction.

We have now to consider the matter set up in the supplemental answer, as tending to show the motives of the husband in praying the interdiction of his wife. Her suit for divorce was filed on the twenty-second of January, ten days prior to his suit for her interdiction. The charge made therein of adulterous intercourse between the husband and Ellen Doyle, carried on under the marital roof, is supported by proof. The first fruit of this concubinage was born in the room adjoining the wife’s, and the birth of that child has been succeeded by others of the same parentage. Madame Lambert says there is no concealment of the paternity of the children, and one of the counsel for the husband in his oral argument impliedly admits, without palliating, the fault of his client.

The wife expressly alleges, that the object of the husband'in confining her in an asylum, was to rid himself and his paramour of her presence. We do not admit this theory. On the contrary, the folie had then attained such proportions as to render some restraint necessary. It is also charged that the present suit for interdiction is designed for the sole purpose of preventing the consummation of the divorce. The sequence of the events makes that probable, and it is admitted by defendant to bo the fact. And it may be observed that the court has no option in selecting a curator for an interdicted wife. C. C., art. 399, now 412.

Much, and not unnecessary pains, have been taken to acquaint the court with the early life of Mrs. Erancke. Her studies during school life, her participation in exercises which preclude the supposition of congenital infirmity, her appearance in society, and her marriage, without suspicion by her family or her husband, of any mental lesion, have been reviewed with care to show that her affliction can not be classified as the imbecility defined by the alienists from whose works we have quoted. It can not therefore be assigned a higher grade in the category of mental diseases than weakness of mind — faiblesse d’esprit.

In determining whether this is sufficiently developed to warrant us in pronouncing her interdiction, we must consider the purposes the law has in view in such proceedings. ' The objects to be accomplished are the preservation of the proposed interdict’s rights of property, the safety of her person, or the protection of society.

Mrs.- Francke has no property. She brought nothing into marriage, and has received, nothing since. We can scarcely be asked to interdict her on the supposition that at some future time she will receive property. The well or ill-being of her person has been tested under the different modes of treatment, and we have already noted the result in each, and society does not need from our hands to be assured of protection from this unfortunate and harmless woman. Her story and her condition have provoked our interest, and demanded the most careful scrutiny of this record. It is one of those domestic tragedies whose mournful pathos touches the heart, inflames its sympathies, and well-nigh misleads the judgment. Our opinion is that Mrs. Pauline Francke is not liable, in her present condition, to interdiction under our law.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and that the petition of the husband, Justus Francke, be dismissed at his costs in both courts.

Concurring Opinion.

DeBlanc, J.

It can not be disputed that Mrs. Francke has been insane,, and that at the date of the trial of this case her mind was still, but slightly, obscured by the receding cloud which settled upon it at the birth of her first child.

Do these facts require, would they justify her interdiction ?

For the purposes of this examination I am disposed to admit more than was proven. If, as alleged, she is now an imbecile, when was she stricken with imbecility ? Was it from the cradle and by the hand of God? Was it by accident, and before or after her marriage? Whether before or after, can he who led her to the altar, who gave her his name, whose blood is mixed to her blood in the veins of their children, whose sacred obligation is to support, assist, and protect her, be heard in this, his attempt to publish to the world that inherent or accidental misfortune ?

He can, but only as a matter of inevitable and inflexible necessity. Ho can, but in whose interest ? Her own and that of society. He can, as a protection to her rights and the rights of others, never as a speculation, or merely because she is incapable of administering- her estate.

If, though not highly gifted, she was possessed of an ordinary share of intelligence and reason, and, as presumed by distinguished physicians, lost that share in the nuptial couch in imparting life, should not the husband and father bo the first to excuse the cause of her insanity ?

Her intelligence has not perished, it is partly veiled; her reason is lingering, not dead. In spite of sinister predictions, the paralyzed faculties are gradually escaping from the shackles, the grasp of insanity. Science condemns, and after its verdict, wraps itself in its impervious incredulity and looks with a dreadful pity on those who dare hope after it has condemned. Affection hopes and struggles, and its priceless cares have often reversed the solemn verdict of a fallible science.

Defendant is improving,, and since when ? Since she has been with her mother. The change in her condition amounts to a miracle; this the husband has acknowledged, and, nevertheless, he enters a court of justice to ask her interdiction, and, perhaps, to wrest the deserted wife, the deserted mother, from- her parents’ home, from those who have accomplished that miracle. The hour is ill-cliosen; a decree against the defendant would be equal to a sentence, and none of the causes shown would justify that sentence.

Article 389 of the Civil Code does not command the interdiction of those whose mind is affected. It leaves the court to determine whether there is an actual necessity to interdict, and, in my opinion, that necessity never arises in a home where the unfortunate mother has two daughters to take care of her person, the unfortunate wife a husband to administer her estate, unless she be absolutely uncontrollable, or forsaken by husband and children.

This case has but one object — this is frankly admitted. What is 'that object? To defeat an action of divorce brought by the wife against the husband. Is that a legitimate cause to interdict the wife ? In that action she charges against her husband an open adultery, one commenced under the roof of the common dwelling, and he confesses the adultery. He says that in asking for a divorce his wife was instigated by parties who are moved by selfish and sordid intentions. Is he actuated by pure and lofty motives ? What does he dread ? Is it the dissolution of the tie which, by a fiction of the law, binds him to defendant ? Another has taken her place at the fireside, and there remains to be separated but the property which for years has been administered and enjoyed by the husband alone. His wife is neither dangerous to herself nor dangerous to others, and we can not, to defeat an acknowledged right, to prevent a divorce to which she may be entitled, decree her interdiction.

It is useless to follow in the pathways of science those who have learned how we think, how we love, how we hate, how we live, and how we die. The task would be too difficult, and.we have but to inquire: Is Mrs. Eraneke insane ? She is not. Was she bom and is she an imbecile ? We believe not. Can she take care of her person ? She can and does with her mother’s assistance. Is she capable of administering her estate ? She has none to administer. Four of the physicians who examined her testified “ that since she left the asylum in 1869 there has been in her condition a remarkable improvement.” Is not that declaration sufficient to at least suspend the interdiction?

In their supplemental brief plaintiff’s counsel contend that though signed by four skillful physicians, one of the reports is evidently the work of a gentleman who, in this controversy, leans to the side of defendant’s mother. The report, after consultation, may have been written by the family physician. Does this not increase instead of reducing its value, and can it be fully presumed that in a case of this magnitude, one in which there already was a difference of opinion between the learned experts, three physicians of high standing would have condescended to approve a false report ?

We have weighed, with the sincere deference due to real talent, the professional opinions expressed as to the actual condition of defendant’s mind. They have not raised the veil of mystery and doubt which cover that condition, and we fool authorized to. look beyond these conflicting opinions for those plain, positive, self-evident facts which overcome and crush incertitude, and which are understood and explained without the flickering light of a deceitful science. Wo have heard friends and strangers, nurses and relations, physicians and alienists; let us hear the pretended imbecile. One of the experts interrogates her:

D. Oombien d’enfants avez-vous ?

R. Cinq.

D. Des gargons ou des filies ?

R. Quatre filies et un garcon.

D. Yous n’avez pas eu d’autres enfants?

R. Oui, un enfant mort-fié, et une filio morte brulóe á l’ágo do trois ans.

D. Quol est l’ainée de vos enfants ?

R. O’est une filie qui a maintenant dix-neuf ans.

D. Aimez-vous vos enfants ?

R. Mais oui, je les aimo.

D. Les voyez-vous souvent ?

R. Non, ils ne viennent plus depuis ces affaires-la.

D.- Yous souvenez-vous qu’a une autre de nos visites, vous nous avez. dit que vous n’étiez pas fachóe que vos enfants ne viennent plus vous voir ? Pourqupi nous avez-vous dit cela ?

R. Parcequ’ils venaient pour cinq minutes, eñ grande cérémonie, et qu’ils semblaient ne pas teñir a moi.

D. Quoi! vous n’avez pas d’autres raisons ?

R. Et puis, ils me parlaient continuellement do cette femme.

D. Quelle femme ?

R. De cette femme qui est la causo de toutes mes traeassories; de leur Ellen.

D. Mais si eettc femme n’était pas la, et que votre mari voulut vous reprcndro diez lui, seriez-vous contente dialler vivre avec vcs enfants et votre mari?

R. Olí! non.

D. Et pourquoi cola ?

R. Parcoque mon mari me remettrait á l’asile, commo il l’a fait une premiere fois.

D. Mais si votre mari, allant vivre dans son pays, vous laissez vos enfants avec de la fortune, seriez-vous contente alors d’avoir vos enfants aupres de vous ?

R. Co sont bien la des cháteaux en Espagne! Mais je serais bien heureuso si cola pouvait se réaliser.

Are these answers the wild freaks, the inordinate fancies of an insane mind, the meaningless and extravagant expression of an insane tongue ? We believe not!

Mrs. Erancke, wto admit, might have been interdicted in 1868 or I860. She was then insane and predisposed to occasional outbreaks of passion and immodesty; but that time and that occasion have passed; she is now improving. That is denied by a few, asserted by others:

“En admettant l’incapacite de Madame Erancke dans l’état oú elle est actuellcment de veiller a ses intéréts, nous la considérons comme étant un cas exoeptionnel, qui mérite l’attention et les égards de tout hommo qui porto en lui la dignitó do sa profession. Sa mere l’ayant retiree de l’asile a, pendant sept années de devouement et d’abnégation maternellc, amélioré tellement son ótat, que l’un do nous, le Dr. Boyer, a ótó frappé du cliangement qui s’est fait en elle. Nous avons tous connu la douceur, la tendresse maternelle, et les consolations qu’elles apportent aux heures douloureuscs de la vie. Mais peut-on mesurer l’ótendue et les effets de la douleur diez une mere qui souffre dans l’isolement, loin de toute affecr tion, loin do ses enfants; loin surtout de cello qui a aujourd’hui dix-neuf ans, et dont la naissanco pout avoir ótó l’origine de l’affaiblissement dcs facultes qui jusqu’alors avaient joui de toute leur force et de toute lour facultes ?

“Nouvelle-Orléans, le — Juillet, 1876.

“Signé: “J. B. GATTDET,

“H. de RANCÉ,

“P. O. BOYER,

“A. L. LANDRY.”

There is at least a doubt as to the wreck or resurrection of her intelligence and reason, a hope-that her depressed and troubled faculties may resume their sway, and we unhesitatingly placfe to her credit that doubt and that hope.

Family is the basis of society. When and wherever the family fails in the discharge of its duties, society is deeply affected. The first of those duties, as between the parents themselves and the children and parents, is to stand by and not to abandon one another in the days of affliction .and adversity, and to dispel or calm, with an affectionate hand, the anxieties and sufferings to which we are subject. The quiet and harmless victim, crushed by insanity, or lingering from its effects, is not a criminal, and should not, as a criminal, be incarcerated and deprived of liberty. Her asylum is her home, and the homeless alone, or the mad, should be sent to the asylum. Interdiction is a harsh, it should be the last, resort.

I concur in the opinion delivered by the Chief Justice.

On Motion for Rehearing.

The opinion of the court was delivered by

DeBlanc, J.

Plaintiff’s counsel have filed in this case an application for a rehearing. Their last brief adds little to the able and complete argument first submitted by them.

They contend that we have erred in the discussion of the facts and the ■construction of the law: as to the facts, in attributing to plaintiff motives by which he was not actuated, and in lending our countenance to a charge which, if untrue, would do great injustice to Mr. Francke, his family, and even to the lady whose condition is the subject of this investigation ; as to the law, in supposing that the court has no option in selecting a curator.

The facts disclosed on the trial do not show with legal certainty that at the date of said trial, or even during the six or seven years which preceded that date, Mrs. Francke had been insane, nor has it been shown or alleged that her interdiction is necessary in her own interest and to preserve the rights and the welfare of her family.

To interdict is a grave, a responsible task, the most important that a court can be called upon to perform, insanity, we know, is a misfortune, not a dishonor, but it is a misfortune which, in its resul s, is equal to a dishonor ; it affects the destinies, blights the hopes, of a whole family. The sentence of interdiction, for it is a sentence, when pronounced against a parent, impresses on that parent’s name, by whomsoever borne, a badge of suspicion which time itself dees not, can not, obliterate. Woe to the son or the daughter of whom it can be said, they are the children of an interdicted !

The husband’s right to interdict his wile arises when-? Not when the last chance of her recovery has fled, but when her insanity is a danger to herself, her home, or her children; when, unless confined and watched, she would be apt to injure herself, kill her children, or set fire to her home ; or when, to save her property, to protect her imperiled rights, her signature to an act, her consent to a proceeding, become indispensable, and she is unable to comprehensively give that signature and con■sent.

There are obligations which aic imposed, by the laws of God. When disregarded, they should be taught and enforced by the laws of the State.

The French legislation on this subject differs from ours. The first is imperative: “Le majeur qui est dans un ólat habituel d’imbécillité, de démence, ou de fureur, doll étre interdit.” Ours provides, “ that lunatics, idiots, and thour> who are incapable of taking- care of their persons, or administering- their estates, are liable to be interdicted.” Then, to authorize the interdiction, two conditiims are required : the party sought to be interdicted must bo incapable of taking care of his person, and incapable of administering his estate. Those two conditions must exist simultaneously, and their actual existence and the necessity of the interdiction must be shown beyond the shadow of a doubt.

Wo attach no importance to the well-established fact that in or previous to 1869 Mrs. Francke had been insane. Our investigation can not extend so far in the past. We are' not to inquire whether she has been, but whether she is now, insane. It may be that she is, that those who allege so are right, that those who deny are wrong. That fact, however, is not only not proved, but contradicted by experts as intelligent, as distinguished, as those who assert it; contradicted by those who have often conversed with her on occasions less impressive than the solemn visit and solemn interrogation by a council of physicians ; contradicted by every one of her answers to those experts.

What was and what is Mrs. Francke’s condition ? She was not born an imbecile; her insanity was duo to the birth of a child. While she was in her husband’s hou?" the insanity increased. It was not alleviated in the asylum, and is slowly but positively yielding to her mother’s care. In one month, under that care, the change in her condition was wonderful. This was acknowledged by her husband, and struck Dr. Boyer,

In his report of the eleventh of February, 1876, Dr. Faget said: “L’état mental de Madame Francke est celui quo les auteurs aliénistes dcsignent techniquement sous lo nom d’imbécülité, e’est-a-dire faiblcsse d’esprit. Chez Madame Francke, cette faiblcsse d’esprit est portée au pcint que ■certainement elle est incapable de gérer ses affaires, et que tres probablement elle ne pent pas meme se passer des petits soins et do la sollicitudo que réelament les premieres années de la vie.”

In his last report he is more positive: “Madame Francke est dans l’imbécilliti — pour le médecin légiste, elle est aliénée — incapable de prendre soin de sa personne et de ses affaires. L’attaque d’éclampsie puerpárale, et, plus tard la maniere compromie dans laquello elle est tombée et retombée pendant plusieurs années, n’expliquent que trop bien son état d’inibécillitó. De 1869 á 1876 jo n’ai pas revu cette dame comme mádeoin.”

Thus, for seven years, he lost sight of Mrs. Francke, and, after that long period, he met her as an expert appointed by the court to examine lior. On that occasion what must have been, what were his impressions? The veil of tho past was lifted by the recollections of 1869, and those recollections fell from his memory in his report. He went to, and left her, with the unremoved conviction that she was insane.

The conversation between defendant and the experts excludes the idea of either insanity or imbecility. The answers to their questions were tho most rational, the most appropriate, that could have been given. They are on record, and no one could successfully combat that they clearly describe her condition, lior feelings, her sorrows, her shattered destiny, those cherished hopes which now, she said, are but air castles. Rot one of those answers is marked by an extravagant thought or extravagant expression, and their value in law can not bo reduced by the brilliant but naked opinions of the most eminent adopts of an enlightened, or difficult science.

Plaintiff’s counsel contend that, if the divorce be granted, and if the view we have taken of this case be correct, not less than $20,000 shall fall under defendant’s administration. What of it ? If • she is not insane, if she is entitled to a divorce, the dreaded consequence shall flow, not from our decree, but from tho law and from the husband’s fault.

It was not, however, on that charge of adultery, or on that tacit admission of its truth, that wo have based our decision ; but on the fact that oh the trial of this case it was not proven that Mrs. Francke was insane or that she is an imbecile ; and it was proven that her condition had remarkably improved, and that she can, at present, take care of lior person ; that she is not a burden to her. husband, or a danger to her children ; that she has in no way exposed their rights or troubled their welfare, and that her interdiction can not bo claimed or allowed either as a-matter of right or of necessity, either in her own or the interests of others.

We are told that wo have tho right to proceed to the hearing of new proofs or to question Mrs. Francke ourselves. This is true, but why should we do it ? She has been examined by the district judge, by experienced and distinguished physicians. We have their reports, their opinions, their views, their impressions, and we are not inclined to again drag in court or to again subject to an additional investigation a nervous, timid, and. suffering victim, whose depressed and delicate mind might bo confused and affected by what she might construe as a determination to convict her of insanity.

Plaintiff says it was an error to suppose, as lie alleges that we have done, that the court has no option in the selection of a curator to the interdicted wife. This, on our part, is no supposition. The Code provides in terms subject to but one construction that “the married woman who has been interdicted is, of course, under the curatorsliip of her husband.” That he may, for cause, be removed or excluded from the curatorship we entertain no doubt, but until the removal or exclusion, what might not happen!

This court has often held in contests for money, land, or cattle, that ho who only makes out a probable case can not recover. Should we depart from that rule when asked to destroy a capacity and tho rights attached to that capacity; when asked to enslave the will and the functions of that will; when asked to place in charge of a -curator the property, tho Will, the body, the privileges, and liberty of any one ? Assuredly not.

Under our law, to justify such a sentence, three causes are indispensable :

First — The indisputable incapacity, to administer one's estate.

Second — The absolute inability to take care of one’s person.

Third — An actual and unavoidable necessity to interdict.

In this case only one of these conditions, the first, was shown to exist.

The rehearing is refused.


source: Caselaw Access Project

author: Hake, J.

license: Public Domain

text:
    No. 6532.
    John I. Adams & Co. vs. Thomas J. Daunis et al.
    National banks, like any other corporations, and tho receivers oí the same, may sue, and b.' sued, in the State courts oí their domicile.
    Where a conflict of privileges on certain property.arises, the claims, no matter who the claimants are, must bo transferred to, and passed on, by the court, under whose mandate the property was first seized.
    The mortgage and judgment creditors, and tho purchaser of the mortgage property at judicial salo oí the property, can not, by their conventions, perpetuate a judicial mortgage, after the judgmont has been extinguished on which tho mortgage founded.
    A third person can not be affected by any notice of a mortgage, except the notice . conveyed to him by the inscription of the mortgage. All are third persons, except the parties.
    The inscription of a mortgage, after tho lapse oí ten years from tho date oí inscription, unless rolnscribcd, is utterly void as to third persons, and is no longer any proof of tho mortgage, oven between tho parties to it.
    APPEAL from the Fifteenth Judicial District Court, parish of Lafourche. Beattie, J.

      Clay Knoliloch, for plaintiffs and appellees.

      J. D. Bouse and Andrew J. Murphy, for N. W. Casey, receiver.
   Tho opinion of the court was delivered by

Hake, J.

On the twenty-fourth of February, 1860, Tucker Brothers ■executed a mortgage, which was recorded on the same day, on a plantation in the palish of Lafourche, in favor of Robert Tucker or any future holder, to secure four promissory notes for five thousand dollars each, of which two only seem to have been used.

The Bank of New Orleans held one of these notes, and Godfrey Barnsley held the other. The bank obtained judgment against Tucker Brothers on the note held by it, with recognition of the mortgage, which was recorded as a judicial mortg ■ ;e on the twenty-eighth of June, 1867. Barnsley brought suit on the note held by him, which was not prosecuted to judgment; and it seems to have been discontinued.

Execution issued on the judgment in favor of the bank, under which the sheriff seized the mortgaged property, and sold it on the seventh of September, 1867, to A. W. Cummings, for cash.

The first mortgage in date bore on part only of the property, and was in favor of Gaubert and Richard, who had obtained judgment against Tucker Brothers for the amount due them, which was recorded as a judicial mortgage on the fourteenth of July, 1866 ; and the next in rank w..;s that under which the bank and Barnsley claimed. The price of the adjudication was not sufficient to pay the amount due these creditors in the second rank. Of course the junior mortgagees were cut off, and the creditors in the first and second ranks were the only persons who woiv interested in the distribution of thg proceeds of the sale.

The sheriff, in his return, after the usual recitals, states that the property was adjudicated to the last and highest bidder, A. W. Cummings, “ for and in consideration of the sum of thirteen thousand and twenty-five dollars, paid as follows, to wit:

“ First — The purchaser retained in his hands the sum of §185110,” the amount due to the first mortgage creditors, Gaubert and Richard, “which amount remained secured by same mortgage.”

Second — The balance of adjudication, §11,173 90, is applied to tlio ■settlement of the claim of the plaintiff and Godfrey Barnsley, each holding a five-thousand-dollar note, secured by the second mortgage * * * in the following proportions, the fund being insufficient to extinguish these claims, viz.: to the bank, to cover principal, interest, and costs, pro rata, §6269 50; to G. Barnsley, pro rata, §4904 40; as will more fully appear by act of compromise and agreement between the parties, etc.”

The agreement referred to in the return is of the same date as the sale. It begins with the declaration by Cummings “ that he has this day purchased at sheriff’s sale, in the case entitled the Bank of New Orleans vs. Tucker Brothers, for cash”; and then follows a description of the property and statement of the price of the adjudication. The agreement then recites: “ That the purchase price was not in reality paid in ■cash; but the purchaser compounded and compromised with the mortgage creditors hereinbefore named, who agree to give him time, without? however, impairing or novating their original claims, the right to enforce which they expressly reserve.”

The payments were to be in three installments. With respect to Gaubert and Richard, declared to be the creditors first in rank, after dividing the $1851 10, to be paid them, into three parts, as agreed upon, and fixing the dates from which they are respectively to bear interest, the agreement states:

“ t is distinctly understood, however, that if any of these installments should not be paid at maturity the whole amount shall be exigible, and Gaubert and Richard shall be and are hereby authorized and expressly empowered to enforce the aforesaid judgment in case No. 487 on the tract to them mortgaged specially by privilege, the said Cummings binding himself to interpose no objection or obstacle thereto.”

After dividing the $4905 40 to be paid to Barnsley and the $6269 50 to be paid the bank into three parts each, and fixing the dates of payment and the time from which they are to bear interest, the agreement proceeds :

“ It is understood, as above stated, that the parties hereto do not by these presents impair, affect, or novate their existing claims, and that in case of non-payment they will be entitled to enforce the judgments which may be held by them, and, furthermore, that the original mortgages and privileges remain in full force and effects, and are not hereby novated, and, if need be, for the purpose of avoiding all doubt the said privileges and mortgages are hereby recognized as operating on the said property in the proportions aforesaid and to secure the debts aforesaid, with the rank above stated.

“The mortgage of the said Barnsley and the bank results from an act executed before the undersigned recorder on twenty-fourth February, 1860, inscribed in this office on the same day, as will more fully appear by suit No. 578, entitled Bank .of New Orleans vs. Tucker Brothers, and No. 793, entitled Godfrey Barnsley vs. Tucker Brothers, on file in the Third District Court of Lafourche.”

This agreement was recorded in the book of conventional mortgages on the day of its date, seventh September, 1867.

Pursuant to the sale and adjudication of the seventh September, the sheriff on the ninth September made a deed to Cummings, in which he recites all that he had done touching the sale, and copies his return in full. He then proceeds to “ sell, set over, transfer, and convey unto the purchaser, A. W. Cummings, for the sum above stipulated and paid as aforesaid, all the rights, title, and interest which defendants, Tucker Brothers, had in or on the aforesaid property.”

The sheriff treated the sale as having been made for cash, and reserved no mortgage on the property. The deed was registered on the thirtieth September in the book of conveyances.

In December, 1868, Cummings sold the property to Mrs. Tucker, who assumed to pay the debts for which CunnniDgs had bound himself ; and on the same day she sold half of it to Thomas J. Daunis, with whom she formed a planting partnership. Daunis assumed the same debts, but neither he nor Mrs. Tucker gave airy mortgage to secure the payment.

On the second of April, 1870, Daunis and Mrs. Tucker mortgaged the property to John I. Adams & Co., and on the first of April, 1871, Mrs. Tucker sold her half to Daunis, who assumed all the debts for which she had bound herself, but he gave no mortgage to secure the payment.

On the twenty-fifth of July, 1875, Adams & Co. required the recorder to cancel and erase the inscription of the conventional mortgage of the twenty-fourth of February, 1860, on the ground that more than ten years had elapsed after the date of this inscription when they on the second of April, 1870, acquired their mortgage on the property, and this inscription had not been renewed.

The recorder complied with this demand, as he was bound to do by the act of 1843, Revised Statutes, sections 450, 3141, amending article 3333, now article 3369, of the Civil Code; and on the twenty-eighth of July Adams & Oo. proceeded against Daunis on their mortgage by seizure and sale. The property was sold on the second of October, 1875, and the mortgagees became the purchasers for some $17,519, less than half the mortgage debt due them. The sheriff refused to complete the adjudication without payment of certain mortgage claims against Tucker Brothers, among others that of the Bank of New Orleans, resulting from the judgment recorded on the twenty-eighth of June, 1867.

Adams & Co. then took a rule on the recorder; N. W. Casey, receiver of the Now Orleans National Banking Association, the successor of the Bank of New Orleans; Goodrich & Co., R. & E. L. Tanner, Gaubert and Richard, and the sheriff: the recorder -and the several creditors to show cause why the mortgages appearing in the names of these creditors, respectively, in so far as they affect the property in question, should not bo canceled and erased; and the sheriff to show cause why he should not complete the adjudication, and put the purchasers in possession.

Oasey alone appeared and contested this rule. He pleaded want of jurisdiction; and that the proper and necessary parties were not before the court. He also pleaded a general denial; and set up the judgment against Tucker Brothers in favor of the Bank of New Orleans, recorded as a judicial mortgage on the twenty-eighth of June, 1867, which he alleged had not been paid, and was in full force.

The judgment of the court below made the rule absolute, and ordered the recorder to cancel and erase the several mortgages specified in the rule, and in accordance with its terms; and the sheriff to complete the adjudication, and to put the purchaser in possession. From this judgment Oasey took a devolutive appeal.

The plea to the jurisdiction is twofold: 1. That the national banks can not be sued in a State court, except in the county or parish in which they are located. 2. That the rights of the bank can not be determined on a rule, but only by direct action.

First — As to this latter objection, it suffices to say that in such a case as this the law requires the proceeding to be summary. Code of Practice, 754, 755; Revised Statutes, sections 1942, 2903.

Second — The other plea to the jurisdiction is based upon section fifty-seven of the national bank act, which was omitted in the Revised Statutes of the United States; but is to be found in the appendix, p. 1437, as an amendment to section 5198, as follows:

“ Suits, actions, and proceedings against any association under this title may be had in any circuit, district, or territorial court of the United States, held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located, having jurisdiction in similar cases.” We do not understand this section as excluding all other jurisdictions than those specified. The State courts derive their jurisdiction from State law, not from the laws of the United States ; and we must look to the State law to ascertain whether a State court has jurisdiction in any given case, except where exclusive jurisdiction is given to the Federal tribunals by the constitution and laws of the United States.

Section 5136 of the Revised Statutes, section eight of the National Bank act, authorizes the banks “ to sué and be sued, complain and defend, in any court of law and equity, as fully as natural persons.” That is, these banks are corporations, and they proceed and are proceeded against as other corporations. Once vested with this power and capacity, they are amenable to the jurisdiction of the courts of the States in which they are respectively located, just as other corporations or natural persons are; and section fifty-seven of the bank act is merely declaratory, and was not intended as an abridgment of the power and jurisdiction of the State courts, touching property or persons, natural or corporate, within their territorial limits. Of course these corporations, just as natural persons, may have causes in which they are parties heard and determined in the Federal courts, either on original process or by removal in the cases provided by the laws of the United States.

In Louisiana the jurisdiction of the courts depends upon the subject matter in controversy and the domicile of the defendant. The New Orleans National Banking Association had its domicile at New Orleans; and, in an ordinary civil case, it could not have been sued out of the parish of Orleans. Casey, the receiver, has his domicile at the city of New Orleans; and in like manner he is not subject to the ordinary jurisdiction of the courts-of other parishes.

The association was not made a party to this proceeding. The Bank of New Orleans no longer exists. It was converted into the New Orleans National Banking Association in 1871, and Casey, receiver of that association, administered the effects which formerly belonged to the Bank of New Orleans. If the association were a party it would be amenable to the jurisdiction, of any State court in which a natural person, having his-domicile at the city of New Orleans, could be sued. The case cited by appellant’s counsel, Bank of Bethel vs. Pahquoique Bank, 14 Wallace, 383, simply decides that a national bank does not lose its corporate existence by the appointment of a receiver, and that it may still be sued, just as a natural person, in a court of the State, precisely as if a receiver had not been appointed.

The question in this case is not whether this national banking association may be sued in a State-court after a receiver has been appointed; but whether, a receiver having been appointed, he is amenable to the jurisdiction of a State court in a parish different from that in which the-association was located, and in which also he has his domicile.

By the act of 1841, re-enacted in 1855, p. 497, section thirty-seven, and again in the Revised Statutes of 1870, sections 1942, 2903: “ Whenever a-conflict of privileges arises between creditors, all the suits and claims shall' be transferred to the court by whose mandate the property was first seized, either in mesne process or on execution, and the said court shall proceed to class the privileges and mortgages according, to their rank and privilege in a summary manner after notifying the parties interested.”

The whole controversy in this caso is a conflict of privileges. The-property was situated in Lafourche; it had been seized and sold under-process of the district court of that parish, and no other court in the-State had power or jurisdiction to settle the controversy, and to distribute the proceeds of the sale among the several creditors assorting, mortgages and privileges against the property.

Third — The rule required certain persons to show cause why inscriptions of mortgages appearing in their names should not be canceled and erased. These persons were made parties by name, and they appear to-have been notified. No other persons whomsoever were necessary parties, because the rights of no other persons were attacked or involved. If any person interested was. not before the court, it will be his business to make that fact appear when his rights are affected; but it is not the business of a party who is properly before the court, and who assorts an independent, separate, and distinct right, which must bo determined! between him and the plaintiff.

It was proven oil tho trial that the debt due Gaubert and Richard had been paid in full; and that tho judicial mortgages in favor of Goodrich & Co. and R. & E. L. Tanner were long subsequent in dató'to the conventional mortgage under which the bank claimed and tho sheriff sold the property. None of these parties have appealed, and the judgment is unquestionably correct so far as they are concerned. • The only question is as to tho right of tho bank; and that depends upon the effect to be given to tho conventional mortgage recorded on tho twenty-fourth of February, I860; the judicial mortgage recorded on the twenty-eighth of Juno, 1876; and the agreement with Cummings, recorded on the seventh-September, 1867.

First — So far as tho judicial mortgage is concerned, it is obvious that it was extinguished by the sale made under execution issued on the j udgment. It was a j udgment against Tucker Brothers, and their property was seized and sold in satisfaction of that judgment, and tho price of tho adjudication was apportioned and distributed by tho sheriff among the several mortgage creditors, according to their rank and privilege respectively. It was not in the power of the bank, tho seizing creditor, and one of the distributees of, tho proceeds of that sale, nor was it in the power of Cummings, the purchaser of the property, for cash, to revive that j udgment, or to give force and validity to the judicial mortgage, the mere incident and accessory, after the judgment itself, upon which alone it depended, had beeii extinguished, pro tanto, as to the judgment debtors, by the sale of their property.

Second — The agreement between Cummings and the mortgage creditors was anomalous, and in some respects extraordinary. It is clear that Cummings did not grant any mortgage on this property, and as the title of the Tucker Brothers had been divested, and had vested in Cummings by the sheriff’s sale, adjudication, and registered deed, the extraordinary circumstance is that these creditors of Tucker Brothers were so careful, took such pains to reserve their original rights, and to stipulate that they should, in case of default on the part of Cummings, enforce tlieir original claims and mortgages against Tucker Brothers, and that these claims and mortgages were in no way impaired, or affected, or novated by the agreement made with Cummings.

Cummings did, indeed, recognize the original mortgages and privileges as operating on the property; but this recognition of mortgages granted by Tucker Brothers no more created a mortgage against Cummings than his recognition of the judgments against Tucker Brothers made him a party to tho judgments and subjected him and his property to the process of execution as one of tho judgment debtors.

Reduced to its just proportions, this agreement means that the several creditors who were entitled to the entire proceeds of the sale would not require Cummings to pay them in cash, as he was bound to do by the terms of the sale; that they granted him time to pay; that he recognized their original mortgages and claims as still existing and. operating against the property, and obligated himself, in case of his failure to meet the payments as stipulated, to interpose no objection or obstacle to the enforcement of their original claims and mortgages against Tucker Brothers, as if no such sale had been made by the sheriff. Without the intervention' of Tucker Brothers, these creditors and Cummings agree that the mortgages and judgments which Cummings was bound to pay in cash, to the extent of the price of the adjudication, should not be paid or discharged, but should continue in force, notwithstanding the fact that the property of Tucker Brothers had been sold, and sold for cash, in satisfaction of these claims and mortgages.

It can not be pretended that the bank could over, at any time after the seventh of September, 1867, have enforced their judgment against Tucker Brothers by execution or any other process against the mortgaged property which had been seized and sold under that judgment; and the moment the right of the bank to seize and sell that property under that judgment ceased, that moment the judgment lost its effect as a judicial mortgage with respect to that property, and the rights of the bank were narrowed down to the conventional mortgage of the twenty-fourth of February, 1860.

Third — There is proof in the record that one of the Tuckers and Daunis wrote to the bank acknowledging their indebtedness. We are dealing, not with a question of indebtedness, but with a question of mortgage; and a written acknowledgment of indebtedness does not create a mortgage.

It was also proven that Adams & Co., in November, 1874, offered to pay for the bank claim thirty per cent on the amount due seventh September, 1867. Adams & Co. stated in their letter that the bank held a concurrent or second mortgage for $6269 50 ; that the inducement for their offer was that Daunis was greatly embarrassed, his property mortgaged for more than its value, and that they were mortgage creditors, and were desirous to have the place kept up as a sugar plantation, “ which can only be done by continuous and heavy advances.” The utmost effect of this is to charge Adams & Co. with knowledge of the claims of the bank, without in any manner giving them additional force or enlarging their effect.

The jurisprudence of Louisiana seems now to be settled that there is no notice or knowledge of a mortgage by which a third person can be affected other than that which is afforded by inscription in the proper office. There has been some difference of opinion as to the correctness of this doctrine, and we think it not amiss to avail ourselves of this ocea®ion to discuss the question somewhat as res nova, instead, of contenting ourselves, as we might do, with a mere reference to the decisions of this •court.

The Civil Code as originally adopted, article. 3314, declared that “ mortgages are only allowed to prejudice third persons when they have been publicly inscribed 6n records kept for that purpose, and in the manner hereafter decreed.”

Article 3315 defined the words third persons, as used in the preceding article, to be “all persons who are not parties to the act or to the judgment on which the mortgage is founded, and who have dealt with the debtor either in ignorance or before the existence of this right.” Under the dominion of this article there was room for the opinion that knowledge supplied the place of inscription.

The act of 1855, No. 274, section two, declares that all sales, contracts, and judgments affecting immovable property which shall not be recorded in the parish where the property is situated “ shall be utterly mill and void, except between the parties thereto.”

The constitution of 1868, article 123, provides that “ no mortgage or privilege shall hereafter affect third persons, unless recorded in the parish where the property to be affected is situated.”

The act of 1855 is re-enacted in the Revised Statutes of 1870, sections 3188, 3189 ; and it is embodied in the Revised Civil Code of 1870, articles 2264, 2265, and 2266.

Article 3342 of the Revised Code is a copy of article 3314 of the former editions; but article 3343, which takes the place of the original article 3315, has modified the definition of third persons remarkably. It reads thus: •

. “ By the words third persons, used in the foregoing article, are to be understood all persons who are not parties to the act or to the judgment on which the mortgage is founded,” omitting the last clause, the words which follow “ founded ” in the original article, as follows : “ ami who have dealt with the debtor in ignorance, or before the existence of this right.”

There can be no doubt that the intention of the law is as declared in the act of 1855, new article 2266 of the Code; in the constitution, art. 123, and in article 3347 of the Code, that a mortgage not recorded in the. parish where the property to be affected is situated is utterly null and void, except between the parties thereto.

The inscription, therefore, is as essential to the validity of the mortgage, except between the parties to the act, as the mortgage is to the validity and effect of the inscription. If the inscription loses its effect, as it may by the lapse of time, the mortgage ceases to have effect, except Between the parties.

Article 3333 oí the original Code was as follows:

“ The registry preserves the evidence of mortgages and privileges during ten years, reckoning from the day of their date; their effect ceases, even against the contracting parties, if the inscriptions have not been renewed before the expiration of this time, in the manner in which they were first made.”

The act of 1843, already referred to, amending this article, makes it the duty of the recorders, on the simple application in writing of the owner, creditor of the owner, or other party interested, to cancel and erase all inscriptions of mortgages which have existed or may exist on their records for a period exceeding ten years without a renewal of such inscription. Revised Statutes, sections 450, 3141.

There was some doubt, as the law then stood, whether the mortgage lost its effect by the lapse of ten years from its date, or whether it was the inscription which was thus perempted.

Article 3369 of the Revised Civil Code takes the place of article 3333, and it changes the phraseology of the original article:

“ The registry preserves the evidence of. mortgages and privileges during ten years, reckoning from the day of its date (not their date, as in the original); its effect (not their effect, as in the original) ceases, even against the contracting parties, if the inscriptions have not been renewed before the expiration of this time, in the manner in which they were first-made.”

The ten years are to bo reckoned; not from the date of the mortgage,' but from the date of the inscription, and the effect of the registry, not of the mortgage, ceases against the contracting parties, etc. One of the effects of the registry, so long as it exists, is that it preserves the evidence of the mortgage or privilege; but when the ten years from the date of the inscription have expired without reinscription before that time, the registry no longer affords proof of the mortgage or privilege, oven as against the contracting parties. As the mortgage is utterly null and void, except between the parties, without inscription, it can have no effect whatever as to all other persons after the expiration of ten years without reinscription before that time has elapsed.

Whether this be in accordance with the registry laws of other States, or the decisions of other and the most authoritative and respectable jirclicial tribunals elsewhere, it is not material to inquire. In most of the States-the chief if not the sole object of registry is to give notice, to afford certain means of knowledge to those who may be affected by the contracts which are required to be recorded; and under such a system it may well be held that knowledge, as it is the accomplishment of all that the registry could possibly effect, supplies its place and makes it unnecessary. . .

Under our system, the registry preserves the evidence of the'mortgage. Without it the mortgage is utterly null and void, except between the parties thereto. The language of the law is plain; and it is not possible to avoid the conclusion that nothing supplies the place of registry, or dispenses with it, so far as those are concerned who are not parties to the mortgage; and that when ten years have elapsed after the inscription without reinscription before that time, those who are not parties to the mortgage may safely contract with the mortgager as if no such inscription had ever been made; and they may acquire mortgages on the same property, from the same mortgager, which will outrank all previous mortgages the inscriptions of which have lost their effect by the lapse of time.

On the second of April, 1870, the date of the mortgage under which John I. Adams & Oo. claim, more than a month had elapsed after the inscription of the mortgage under which the bank claims had lost its effect. The mortgage in favor of Adams & Oo. outranked that mortgage; and, whatever effect the latter may have had during the ten years after the twenty-fourth of February, 1860, it could have had none, except between the parties thereto, after the expiration of that time.

The sale of mortgaged property under execution, for cash, in satisfaction of the mortgage debt, must release and discharge that property from the operation and effect of that mortgage; and neither the conventional nor the judicial mortgage in favor of the bank had any real existence, so tor as the property originally affected by them was concerned, after the sale of that property on the seventh of September, 1867.

Counsel for appellant suggest that the agreement of seventh of September, 1867, was not discussed in the court below. We find that it was introduced in evidence by them; and we do not see how the judge could have avoided giving it the effect to which it was entitled, or deciding that it had not the effect claimed for it. It is clearly not a mortgage; and if it appears as a mortgage in favor of the bank it should be canceled and erased, so far as the bank is concerned, under the judgment making the rule absolute.

Our conclusion is that all the mortgage rights which the Bank of New Orleans had with respect to the property in question have long since been extinguished; and the judgment appealed from is therefore affirmed with costs.

The labor of examining this voluminous and closely-written transcript has been greatly increased by the failure of the clerk to observe the first rule of this court, adopted thirty-first of May, 1869. Some long documents have been copied more than once, and the index, of several pages, is merely a reference to the papers and proceedings in the case in the order in which they appear in the transcript, without even an attempt at alphabetical arrangement. We 'think this a proper occasion to call the attention of the clerks to this rule, and to notify them that they incur the risk of having to pay the costs of putting the transcripts in proper order, and of arranging the indexes, where they fail to observe the rule of the court in that respect.


author: Spencer, J.

text:
    No. 6630.
    Bazile Barthe vs. Succession of J. Lacroix.
    A promissory note for a certain sum executed by a person in favor of lxis employee, payable at the maker’s death, although said suxxi be not legally dxxe, will not bo deemed as a donation in disgxxise, if it appear that the note has for its eonsidoi'ation the natural obligation in favor of the employee, arising out of lxis long services to the maker.
    APPEAL from the Second District Court, parish of Orleans. Tissot,. J.

      J. A. Seghers, for plaintiff and appellee.

      Charles E. Schmidt, for defendant.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff was for a number of years a trusted employee-of the deceased Lacroix. His wages appear to have been only fifteen dollars per month. In 1864, Lacroix being in bad health and sick, sent for two friends, Garlepied and Reyff, and told them he felt under obligations to plaintiff and directed to be drawn up and attested by them a-note in plaintiffs favor for five hundred dollars, payable at his (Lacroix’s)death. The note was so drawn, signed by Lacroix, and delivered to plaintiff, who kept it until it was destroyed with his other effects by fire a year or more afterward. About twelve years after this transaction Lacroix died, and this suit is brought to recover the amount of said note.

The defense is that the note was given without consideration, and that-it was at best a disguised donation, void for want of form, etc.

There was judgment for plaintiff, and the executor of Lacroix appeals.

’ The plaintiff and said two attesting witnesses were sworn on the trial below, and they fully prove the execution of the obligation as stated. Plaintiff says in substance it was given as a gratuity beyond his wages- and for faithful and long service. He speaks of it as a donation for his. services. The witness Garlepied (who drew up the note) says he got the impression from what Lacroix said that plaintiff was dissatisfied with his wages and was talking of leaving his employ, and that the note was given to satisfy and keep him. The other witness, Reyff, says nothing of this proposed departure of plaintiff from service, hut speaks of its being a donation for services, a gratuity, etc.

It also appears that lour or five clays after this five-hundred-dollar note was thus given, Lacroix made his will and appointed Mr. Crabites his executor. He at the same time executed a second note for one hundred and fifty dollars in favor of plaintiff, payable on demand, and this was given to the executor with verbal instructions to pay it after his (Lacroix’s) death, saying that he wanted “ to give a reward to Mr. Barthe, his clerk.” The executor swears that Lacroix, although intimate with him and living a number of years after the date of this will, never said anything about having executed the five-hundred-dollar note. The plaintiff swears that this one-hundred-and-fifty-dollar note was given for wages actually duo him, and that the deceased afterward paid him one hundred dollars on account of it.

We have read all the evidence in this case carefully, and tho conclusion we have reached is that the deceased, Lacroix, being without family, and believing that plaintiff had served him long and faithfully at very small wages, felt that he was under a moral obligation to remunerate Mm beyond Ms wages, and executed this five-hundred-dollar note for that purpose.

In ono sonso it was a gratuity; i. e., he was under no legal obligation to do so. In another sense it was the fulfillment of a natural obligation. We think that there was a good and valid consideration for the note. Under this view it becomes unnecessary to pass upon the questions raised as to the validity of donations disguised under the form of onerous contracts.

Judgment affirmed with costs of both courts.


author: Spencer, J. Spender, J.

text:
    No. 6608.
    Succession of James Cloney.
    A judgment homologating the account of an administrator, where no ovidonee' has been adduced to show tho correctness of the account, is invalid.
    A creditor who has boon placed on the tableau of a succession, and recognized as a creditor, may appeal from a judgment homologating an administrator’s account, although lie may not have opposed tho homologation.
    Tho amount to be. distributed in the homologated account of an administrator, and not the amount claimed by tho appellant, determines his right of appeal.
    A PPEAL from tho Second District Court, parish of Orleans. Tissot, A J.

      McGioin Nixon, for James Grcnon, appellant.

      JB. C. Elliott, for tho succession.
   On Motion "to Dismiss.

The opinion of tho court was delivered by

Spencer, J.

On the 18th of July, 1876, the administratrix filed her aecount, on which James Grerinon, appellant, was placed as an ordinary creditor for $350, and on which she put herself as a privileged creditor for the widow’s $1000; also privileged attorney’s foes for $500.

Several oppositions were filed, but none by appellant.

On the the third of August. 187G, on motion of the attorney for administratrix, and on the oath of the deputy clerk that the account had been duly advertised in the Now Orleans Republican, the court homologated the account so far as not opposed, without other proof.

On the twenty-second of August, 1876, there was judgment sustaining the oppositions of certain creditors, and dismissing that of M. Hennenmann, and reducing attorney’s fees to five per cent. On the same day Hennenmann moved for a new trial, which was, on the twenty-ninth of August, granted.

On the thirty-first of January, 1877, the administratrix filed in the cause, on the trial, a written waiver of her claim to the $1000, and also a consent that the attorney’s fees be reduced to five per cent. The court gave judgment, reciting that all the oppositions had been withdrawn, and homologating the account as rendered.

On the sixteenth of February, 1877, James Gronnon, by motions in open court, appealed from the decrees of homologation, of date August 3,1876, and January 31,1877.

Appellee moves to dismiss the appeal on the following grounds :

First — Appellant’s claim is for only $350.

Second — The record does not contain certain papers used below.

Third — That the appeal bond is insufficient for a suspensive, appeal.

First — The amount of the fund to be distributed determines the right of appeal. It is more than five hundred dollars.

Second — The papers which arc properly part of the transcript have been filed. The mortuaria was not offered below, and therefore makes no part of the record.

Third — The bond is for the amount fixed by the court. It is good. A bond for costs is all that was required.

The motion to dismiss is overruled.

On the Merits.

The opinion of the court was delivered by

Spender, J.

The appellant being placed on the account as a creditor clearly has the right to appeal from a judgment unsupported by the evidence. He is a party to the record.

We think‘the judgments of homologation appealed from are clearly erroneous. That of the third of August, 1876, is unsupported by any proof, even prima facie, of the correctness of the account. Where an account is not opposed the administrator should at least offer proof sufficient to render probable its correctness. A judgment by default can not be confirmed, except on proof of the correctness of plaintiff’s demand. We know no law that changes this rule for administrators. The judgment of the thirty-first of January, 1877, is in direct conflict with the written admissions of the administratrix. She “ waives ” her claim to be paid one thousand dollars by privilege, and consents to a reduction of the attorney’s fees; yet the judgment homologated absolutely an account giving her this one thousand dollars and the attorney’s fees without reduction.

It is therefore ordered, adjudged, and decreed that tho judgments appealed-from be avoided and reversed, and that this case be remanded to the court below, to bo there proceeded with according to law, appellee paying costs of appeal.


author: Spexcek, J.

text:
    No. 6270.
    Mrs. M. A. Laloire et al. vs. P. S. Wiltz & Co.
    The pledgee of a mortgage note, who violates the contract of pledge by pledging the note to a third person, is responsible to the owner of the noto for the full amount of the note, unless he clearly proves that the note was worth less than its face.
    Whoever actively violates a contract, need not be put in default.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J. ,

      Edward Thillips, for plaintiff and appellee.

      F. D. Chretien, for defendants.
   The opinion of the court was delivered by

Spexcek, J.

The plaintiff, Mrs. Laloire, being indebted to defendants in the sum of 82721, with eight per cent interest from April 20,1873, gave to them in pledge a note of F. Bérard for four thousand dollars, bearing-eight per cent interest from tho thirtieth of December, 1872, and due first of December, 1873. The act of pledge bears date the tenth day of April, 1873.

The defendants being in need of money, in their turn pledged this four-thousand-dollar note (which was secured by joint mortgage and vendor’s privilege on a plantation in St. Martin) to the New Orleans Mutual.Insurance Association for its full amount to secure a loan of twelve thousand dollars, without advising tho company of the nature of their title or limiting their pledge of it to the amount of their debt against plaintiffs. P. S. Wiltz & Co. soon after failed, and the insurance company disposed of the note to Hambro & Son, of London, in absolute property, and these last, through their agent, Halsey, foreclosed the mortgage and bought the plantation.

Plaintiff brings this suit against P. S. Wiltz & Co. to recover tjie excess of the pledged note over the amount of her indebtedness.

Defendants answer by a general denial, and plead that plaintiff has not pat‘them in default; that plaintiff has never paid or offered to pay her indebtedness to them; that they had a right to pledge the four-thousand-dollar note, and did so in good faith.

There was judgment for plaintiff, and defendants appeal.

Conceding for the sake of argument that defendants liad a right to pledge the note held by them in pledge, they certainly had no right to pledge a greater interest therein than they had themselves. By their pledge to the insurance company they put it out of the power of themselves or the plaintiff to redeem the note by paying the $2724 for which it was pledged to defendants. The defendants actively violated the contract of pledge, and there was no necessity of putting them in default. O. C. C. 1926,1905, No. 3.

The defendants having disposed of the pledge in violation of their contract, can not avoid liability for its amount by indefinite statements of witnesses that the property mortgaged and sold to pay the note did not bring the amount of it. The maker of the note may be perfectly responsible outside of the mortgaged property, and defendants have put it out of their power to return the pledge. If the note pledged was not worth what it called for, the onus of proving it was on defendants. Wo find no proof of that fact at all satisfactory.

. We think there is no error in the judgment of the court below, which is accordingly affirmed with costs of both courts.


author: Manning, C. J. Spencer, J.

text:
    No. 6562.
    Jacob C. Van Wickle vs. Alcée Landry.
    A mortgage on property exempt under the homestead act can not be enforced; and the owner of such property may sell the same, free from the mortgage he has imposed on it.
    APPExYL from the Seventh Judicial District Court, parish of Pointe Coupee. Heine, J.

      Edward Phillips, for plaintiff and appellant.

      Charles Parlange, for defendant.
   The opinion of the court was delivered by

Manning, C. J.

This suit is upon a promissory note of defendant, the payment of which is secured by a mortgage upon a tract of land containing about sixty-seven acres. The plaintiff asks a payment for the amount of the note and interest, and for the recognition and enforcement of the mortgage.

The defendant admits the execution 'of the note and mortgage, and denies that the mortgage can be recognized now or enforced hereafter, because the property is exempt from seizure by the, provisions of the homestead act of 1865. Rev. Stat. of 1870, sec. 1691.

The court a qua rendered a personal judgment against the defendant for the amount of the note and interest, and sustained his plea of exemption of the land and improvements from seizure.

If this were a nova quaestio in this court, whether the execution of a mortgage by a debtor is not of itself a waiver of the exemption of the property mortgage, we should be inclined to give to this deliberate act of mortgage a significance and effect in keeping with the express declarations of the mortgager, but the scope and effect of the act providing for the exemption has been too often adjudicated by this court to permit its consideration as an original proposition, and it is in deference to the doctrine of stare clecisis that wo adhere to the ruling already made.

The proof sustains the plea of exemption. The defendant has.no other property, nor has his wife, and the land and improvements are not worth more than six hundred dollars. The quantity is less than that allowed in the act. The defendant is the bona fide owner of it, and is the head of a family, and has young children dependent on him for a support, and ho occupies it as ahorne. Plaintiff insists that the judgment should restrict the operation of the exemption to the period when the property in question shall be used as a homestead. It is conceded that a party, in whose favor a certain quantity of property has been adjudicated as exempt from seizure, may sell the exempted property, and his vendee would acquire a title, unincumbered by the mortgage granted before such adjudication. It would seem then that the judgment of exemption is a perpetual bar to the enforcement of that mortgage. The most usual form in which these claims for exemption have come before this court has been an injunction by the debtor, restraining the creditor from subjecting, or attempting to subject, the exempted property to satisfaction of his judgment, and the decree of this court has been a perpetuation of the injunction. Leblanc vs. St. Germain, 23 An. 289. Robert vs. Coco, idem, 199.

If we can not decree the enforcement of the mortgage now because of a legal obstacle, if the law exempts the property from seizure so unqualifiedly that a mortgage voluntarily imposed on it by the debtor is held not to bind it, and if the exemption is so complete that the owner-may convey the property by an unincumbered title, it would seem'that no future contingency can revivify a mortgage thus declared to be extinct. A mortgage which no court can enforce, when its enforcement is judicially demanded, can not have such validity and vitality as to entitle it to recognition with a view to its future enforcement upon the happening of an uncertain contingency. The judgments of courts should not bo .temporary, contingent, or conditional.

The interpretation of the homestead act by this court assures to the debtor, who proves himself to be within its provisions, property of a defined quantity and value, in spite of his own efforts to incumber it, and •even annuls the lien himseif has placed upon it. The provision thus made for him was intended to be permanent, and can not bo restricted by the uncertain contingencies of the future.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court is affirmed with costs.

Dissentino Opinion.

Spencer, J.

I can not concur in the conclusions of the majority of the court in this case.

The homestead act being exceptional in its character, in derogation of common rights, and restrictive of commerce, ought not to be extended beyond the scope of its plain and manifest terms. The law declares that the property of the debtor is the common pledge of his creditors; that real estate may be mortgaged; that contracts not forbid by law or morals are laws between the parties. Laws taking property out of commerce, and out of the operation of these great, universal, and elementary principles can not be extended by construction or intendment. The homestead act does not forbid the sale of the property subject to it, and therefore the debtor may sell it. It does not more forbid the mortgaging of it, and therefore it may be mortgaged. It only says that it shall be exempt from seizure and sale when “ owned by the debtor,” and “ occupied by him as a residence,” and when he “ has persons depending upon him for support.” All of these conditions must co-exist and concur to give exemption from seizure. As long as these conditions exist the property can not be seized.

That is the full extent of the law. It goes no further, and we can not extend it. It follows that if these conditions do not exist, or, if having existed they cease, the exemption is gone with them. A man can not acquire a vested right to a homestead. The -repeal of the law creating it, even after he has had it adjudged to him, will extinguish it. So a change of state in the owner may have the same effect. Thus a widow marrying again, or a married man losing his wife and children depending on him, can not claim the exemption. If the owner, whether before or after having claimed and had adjudged to him a homestéad, abandons it as a place of residence, it ceases to be exempt. The law exempts the implements of one’s trade by which he gains a living. The books of a lawyer are exempt, but only while they are the implements of his trade. If lie change his profession or cease to practice, they again enter into commerce, and become subject to the ordinary rules of property. Had the debtor in this case at bar sold the property in controversy before claiming the homestead, there is no doubt it would have passed subject to the plaintiff’s mortgage and could have been seized and sold to pay ";it. How can a subsequent sale have a greater effect ? How can the decree of this court divest that property of plaintiff’s mortgage ? Judgments are not creative, but declarative of rights, and assist in their execution.

In my opinion the judgment of the court should stop where the law stops.- It should declare the property exempt from seizure and sale under plaintiff’s mortgage upon the same conditions that the law declares it exempt, to wit: while bona fide owned by the debtor and occupied as a-residence, he having persons dependent upon him for support, etc. When these conditions cease to exist, the exemption should cease — ratione cessante cessat ipsa lex. A repeal of the homestead law, or what is the same thing, the cessation of the conditions of its operation, extinguishes the rights under it.

I therefore conclude that plaintiff should have judgment for the amount of his debt, with recognition of the mortgage claimed, .but suspending the execution of it upon the property as long as the conditions required by law for establishing a homestead exist.