author:
Rost, J.
     Sjadeia, J. Eus'pis, C. J.

text:
    West v. His Creditors.
    Where the demand in one case is made by a party in his own right, and in another as executor, the demand not being between the same parties in the same capacity, a judgment in the first case cannot have the force of res judicata in tlio second,

      The exception rei judicata is stricti juris; and if there should be any doubt as to the identity . of the things claimed, or of the persons claiming them, it cannot be maintained.
    In an opposition by one who had been a surety on a custom-house bond, to a tableau of distribution presentedby the syndics of the principal, the opponent’ may show by whom a judgment rendered on thebondhad been paid, notwithstanding a’statement’in the marshal's return that it had been paid by a different person. Per Curiam: The statement by the marshal formed no part of the return required by law; and, if it had formed a part, could not take away the right to prove that the opponent had refunded the amount, or a part of it.
    A surety on a oustom-bousebond, who paid its amount to the United States while the Code of 1808 was in force, became thereby subrogated to the rights of the United States, against the principal, to priority of payment and interest out of the property of the principal. B. 3, tit. 3. art. 151.
    Under the Code of 1808, b. 3', t. 3;- art. 151, subrogation took place of right for the benefit of one who, ■ being hiinself a creditor, paid another creditor whose claim was preferable to his own.
    Prescription against the creditors of an insolvent is suspended by a cessio bonorum. TI10 property ceded by the insolvent is the common pledge of his creditors; and that pledge continues as long as there are asset's to be divided.
    APPEAL- from the Fifth District Court of New Orleans, Buchanan, J.

      H. D. Ogden, for the appellant.
    The plea of res judicata cannot be supported. The demand now made is not in the same capacity as that made in the former case. 2 Délvincourt, note 4 to p. 197. Pothier, Oblig. no. 198. 5 Toullier, no. 548, 492. 6-Mart, N. S. 252. T Ann. 31. Rogron, on Code Comm. art. 513. Cloutier v. Lecomte, 13 Mart. 481'. A sheriff’s or marshal’s return may be contradicted. 13 La. 342. 1 NewHamp. Rep. 68. 4 Rand. 189. Rochelle v. Cox, 5 La. 287. Singleton v. Smith, 4 La. 433. Comyn’s Dig. vol. 7, p. 2859 verbo Return. 8 La. 423.
    The U nited States were entitled to priority of payment and interest’ at the rate of six percent per annum. U, Laws, pp. 147, 242, and 630. 5 ¿Peters, 183. 6'Peters, 29. 9 La. 268.

      West was indebted to Duplessis Before the payment of the latter, and Duplessis being at the time a‘ creditor, and paying another creditor, whose claim was preferable to his, was subrogated of right. C. G. 2157. C. N. 1250. Rogron, C. C. Expliqué, note to art. 1251. Toul. vol. 4, no. 140.

      G. B. Duncan, for the syndic, contrá,
    contended that the matter in conteBt was res judicata, citing Hunstock v. His Creditors, 11 La. 571.
   The judgment of' the court was pronounced &y

Rost, J.

In the case of West v. His Creditors, 1 Annual R. 365, we refused to allow Francois Duplessis, Jr., a claim' of $2368, alleged to have been paid by him to the'United States fora custom-house bond of the insolvent, on which he was one of the sureties. The claim Was rejected on the ground’ that the evidence adduced in support of it, if admissible, went to show that the-payment had been made by the father of the claimant. The funds then in the' hands of the syndic were ordered to be distributed according'to the tableau annexed to the decree. Other assets of the insolvent having since been received,, the syndic filed a tableau of distribution in conformity with that decree. Francois Duplessis, Jr., in his capacity of testamentary executor of his father,, opposed the homologation of the tableau, claiming to be paid by priority to the other creditors, the-aforesaid sum, with interest at six per cent per annum since it was paid by his father. The attorney of absent creditors filed a plea of res judicata, and the syndic otherwise- opposed the claim, and has pleaded prescription in this court. The opposition was dismissed, and- the executor has appealed.

The plea of res judicata cannot be sustained. The demand in this and' the former case is not'between the same parties, in the same capacity. In the first case, the opposing creditor claimed in his own right; he now claims in right of his father, whose legal representative he is. The exception of the thing adjudged is stricti juris,.and if there should be doubt.as to the identity of the things claimed, or of the persons claiming them, it cannot be maintained. 5 Touillier, no. 492. Cloutier v. Lecomte, 3 Mart. 481. In these cases, 'there is no doubt that the party claiming is not the same.

On the merits, we are of the opinion that evidence was admissible to show by whom the judgment rendered on the .custom-house bonds had really been paid, notwithstanding the declaration in the marshal’s return that it was satisfied by Abner L. Duncan. This declaration was no part of the return required by law; and, if it had been, the opponent had the right to prove that his testator subsequently refunded oneJhaIf of the amount. The evidence satisfactorily establishes that fact. The United States were entitled to priority-over ordinary creditors, and to interest.at the rate of six per cent per annum. Duncan, being one of the parties to the bond, became subrogated to the rights of the United States against West, when he paid the judgment. Code of 1808, p. 290, article 151.

Francois Duplessis, Jr. subsequently refunded to Duncan the sum now claimed, and his light to priority depends upon the relations existing at the time between him and West, as creditor and debtor.

On the 16thof May, 1818, West acknowledged himself indebted tollin'! 'in the sum of $5400, and gave him a mortgage to secure that amount. That debt matured on the 16th May, 1819. On the 1st February of that year, West had applied for a respite, which was subsequently changed into -a .cessio bonorum. On the 1st June following, Duplessis, proceeding under a subrogation from a creditor who held the first mortgage on the property mortgaged to him, caused that property to be sold, and out of the proceeds of the sale satisfied this mortgage, and received $966 25 on his own, thus remaining an ordinary creditor of West to Che amount of $4433 75, for which sum he was placed on the former tableau of distribution. On the '5th November,' 1819, when he paid Abner L. Duncan the sum claimed, he was an ordinary creditor of West, and Duncan's claim, being entitled to priority, was preferable to his. Under the laws then ■in force, subrogation took place of right for the'benefit of those who, being themselves creditors, paid another creditor whose claim was preferable to theirs. Code of 1808, p.'290, article 151.

This claim is not barred by prescription. The assets left by an insolvent are the common pledge of his creditors. That pledge continues as long ’as there are assets to be divided.

We are of opinion that the opposition should have been sustained.

It is, therefore, ordered that, the judgment appealed from be reversed, and ■that the succession oí Francois Duplessis, Sr., recover from the syndic of the .insolvent, John K. West, the sum of '$2368 40, with interest at the rate of six ■per cent per annum, from the 5th of November, 1819, till paid, to be paid by ■priority, and in due course of administration. It is further ordered that, the tableau filed be amended so as to conform with this decree, and that the costs in .hoth.courtsbe paid out of the-.assets in .the hands of the syndic.

Whore there is doubt upon a question of res judicata, tho party against whom the plea is set up should have the benefit of that doubt.

A judgment homologating a tableau of distribution presented by the syndic of an insolvent, and declaring that it shall st and " as the final tableau of distribution of the funds in the hands of the syndic,” on which a creditor, who opposed the homologation, was placed as an ordinary creditor, cannot be pleaded as res judicata to an opposition by the same creditor, to a second tableau, for the distribution of other funds, on which he claimed to be placed as a privileged creditor for the same debt. The homologation has the force of res judicata only as to the funds proposed to be distributed by the first tableau.

Horner, for the absent creditors,

prayed for a re-hearing, contending that a judgment of homologation, so far as it settles the rank and privilege of the creditors is final, and must have the authority of the thing adjudged, citing 14 La. 242, and the cases there quoted. H. D. Ogden, argued on the same side.

Same Case — On a Re-hearing.

The judgment of the court on the re-hearing was pronounced by

Sjadeia, J.

We adhere to the decree rendered by us at the last November term. On the former tableau a sum of $18,681 47, a collection upon the mexican claim, was distributed. Since that, tableau, a further amount has come from the same claim into the syndics hands, the distribution of which is the subject of the present tableau. Where there is doubt upon a question of res judicata, the party against whom the plea is set up should have the benefit of that doubt. In Lang v. His Creditors, an examination of the record will show that the proceeds of moveables upon which the creditor claimed his privilege on the second tableau, were in the syndic’s hands and expressly figured upon the first tableau, It is conceded that the appellant is estopped as to the monies in the syndic’s hands, distributed by the first tableau ; but we cannot consider him as barred by the former decree as to those new monies now proposed to be-distributed. If we look to the bankrupt law of the United States and of England, we find a creditor protected not only to that extent, but even beyond it. This is a strong argument to support the equity of the appellants’ pretensions. We are not aware that any express provision of our insolvent laws shut out this equity. It is also to be observed that the decree of this court, (1 An. 365,) uses limited expressions; “ It is ordered that the tableau annexed^ to this decree and made in conformity with the principles of this decision, stand as the final tableau of distribution of the funds in the hands of the syndic,” &c. The amended tableau made by this court distributed the amount of $18,681 47, treating that as the fund.

It is therefore ordered that the decree rendered in this cause by this court on the 2§d November, J847, supra, p. 530, remain undisturbed.

Eus'pis, C. J.

I did not sit in this case, having a small pecuniary interest depending on the result. A re-hearing has been granted, and the case has been re-argued in writing. Rost, J. concurred with my brethren in thinking that the decision ought to stand. He being absent, I represent his opinion, andconcurin that of the other judges, under the reservation of my own. I adopt this clause because the parties have a right to have the case terminated, which has been for a long time litigated, and the subject has been thoroughly investigated ppd discussed, and it is not probable that any advantage would bo attained by further delay,

       Eustis, C. J. did not sit on the trial of this case, being interested. The opinion read by Rost,,X, was pronounced on the 23 of November, 1847,


source: Caselaw Access Project

author: Rost, J. lime, J.

license: Public Domain

text:
    Ross v. Ross et al.
    The incapacities created by arts. 1139,1734, of the Civil Code, endure as long as the relations between the parties from which they result, but no longer. If the contract by which a curator, administrator, &c. acquires the property previously committed to bis charge necessarily terminates the previously existing relation between him and his vendor, it may be voidable on other grounds, but it does not come within the prohibition of arts. 1139, 1784-Thus the salo by an heir to the executor of his hereditary rights, necessarily implies a deliberate intention that the relation should cease, so far as his rights are concerned.
    Inadequacy of price is either lesion or evidence of fraud. If lesion, the action to annul is barred by four years. If taken as evidence of fraud, the action is limited to teny ears from the discovery of the fraud; and, in the absence of .other .evidence, the period of prescrip, tion must commence from the date of the sale.,
    The nullity established by art. 1784 of the Civil Code is relative only, and introduced exclusively in the interest of the owners of the property, of which that article forbids the sale-
    One who has the right to attack an Onerous contract which the law declares null for his private benefit, makes it valid and obligatory oh him by bis ratification, express or implied, or, in default of ratification, by his voluntary execution subsequeatly to the period at which the allegation could have been validly confirmed or ratified. This rule admits of no exception Every nullity which may be thus ratified is proscribed by ten years under art. 2218 of the Civil Code. The only class of nullities to which this prescription is inap, plioable, are those resting on motives of public order or utility, or taking their source in the respect due to morals ; and, even in such cases, if this contract ceases to be illicit, it is from that time susceptible of ratification, and the prescription of ten years applies to it.
    APPEAL from the Second District Court of New Orleans, Canon, J. The facts of this case are stated in the opinion of the court.

      T. H. Lewis, for the plaintiff.
    1. The sale's in 1835 and 3839, were made by persons of full age, fairly, with full knowledge of all the facts, and for the purpose of realizing, by the vendors, their shares of property held in common with their brothers; and amount, as to them, to a partition of their interests and shares in the properly of the estate of William, Ross, deceased, which partition they had a perfect right to make in any manner they chose to adopt. C. C. arts. 1245. 2420, 2424. 2. In the sale of Robert Ross’ share, there is no ground for a plea of lesion ; and in that of John Ross, if lesion ever existed, the right to complain of it is prescribed by four, five, and ten years. C. C, 1870, 3507, 3442. 3. If the fact of James Ross having been executor of the deceased, ever formed a ground for setting aside these sales, the right to set up that cause of nullity is prescribed by two years, by the act of 20th March, 1840. Session Acts, p. 123, § 1, 2, 3, 4. See also Acts of 1814, p. 30, § 1, 2. 4. A sale made by one heir to his co-heir of his share in a succession, is not subject to rescisión on account of lesion, unless fraud be alleged and proved, which is not done here. C. C. 3 442, 1443, 1444. 5. Defendant’s counsel relies on the case of Michoud et al. v. Girod et al., 4 Howard, 503. I distim guish that case from this, in several particulars. 1st. That decision is merely based on the ground that there was actual fraud and concealment practised by the executor on his co-heirs, who reside in Europe and he in this country. In our case there is no pretence of actual fraud or concealment; and all the parties lived together and knew all the facts equally well. 2d. The prescription provided by the act of 1840, was not pleaded, nor decided upon by the court, in that case. 3d. That case was decided upon the principles of limitation, acted on by courts of Chancery in England, and in those States of the Union where the common law prevails; and those principles, being very different from our prescription laws, our courts, in cases over which the United States Supreme Court has no jurisdiction, are not, and ought not to be, bound by them ; but should decide upon our own laws; 4th. In that case the executor was, in fact, though not ip form, both vendor and vendee — our case is very different.

      Bonford, for the appellants.
    Articles 1139, 1784 .of .tire Civil Code formally prohibit a person adtninisfering.a succession, from purchasing any portion of the estate committed to his charge. The parties, it is answered, were of full age ; they were legally capable of contracting with each other; as heirs they might have taken the estate out of the court of Probates, or have partitioned it extra-judicially; and, being competent to do this, each of the heirs was competent to sell to his co-heir. The incapacity of an administrator under article 1784, results from the subject matter of Ms contract; not, as the above position assumes, from the persons of the contracting parties. As to all other matters, the parties may .be perfectly .competent to contract with each other to any extent, the incapacity being determined not from any ability or disability of the parties, but entirely and exclusively from the .consideration of the thing or property which is the object of their .contract.
    Not less unsound is the idea that, as the estate might have been taken out of the Probate Court, therefore the sale is valid. Had the relation of the éxecutor to the estate been closed by a final settlement of his accounts, and the succession delivered over to the heirs, it is true they, or any of them, might have sold their property to him, as well .as to any other person. But this relation of the plaintiff to the estate was existing at the tíme of the sale as it exists now, and so long as that relation subsisted, so long did and does the incapacity to purchase continue.
    The roman law .contains the prohibition on all persons in an administrative or fiduciary situation, to make acquisition of the property which is the subject of their .trust. Tutor rem pupilli emere non potest. Idemque porrigendum est ad similia; id .est, euratores, procuratores et qui alienanegotia gerunt. Pandects of Pothier, 1.18, xxii. The .commenlators make the reason of the rule to consist in this, that it is not expedient to expose one in a fiduciary position, to the temptation even of abusing his trust. The english and american eourts of Equity have adopted, in its full extent, the rule of the roman law, and we have it laid down by them in its most general and laconic form, that “ a trustee can never be a purchaser.” In Bavoue v. Fanning, 2 Johns. Ch. Rep. 225, Chancellor Kent went into an elaborate investigation of the rule and of all the, authorities in which it was applied. His masterly reasoning places beyond question the soundness of the policy of maintaining the restriction with the .greatest rigor. The french law contains a similar provision, applicable, according to Iloilleux, to public as well as to private sales. C. N. 1596. Boilleux, Commentaires, vol. 3, p. 210. In this State, before the Civil Code, the same rulo existed as derived from the Spanish law. It was the subject of discussion in the case of ilarrod et al. v. Norris’ heirs, 11 hi. R. 297. Judge Porter, in delivering the opinion of the court, remarks: “ The reason for introducing this principle into our juris prudence is obvious, and its reasons manifest. It was to prevent men from being led into temptation; that they might not be placed in a position where their private interests and their duties to others were at variance; the law presuming that in such case the latter would be sacrificed. But the whole doctrine upon this subject underwent a careful examination before the Supreme Court ,of the United States, in a case that came before them from this State, Michoud v, Girod, 4 How. 5.03, and there the rule was affirmed as prevailing in this State, that in no case can an executor acquire by purchase the interest of the heir. Such a purchase is an absolute nullity; Dot voidable only, but void.
    An effort has been made to limit the application of the rule to public sales provoked by an executor or curator. In the face of the mass of authorities to the contrary, such a proposition will hardly be renewed. The reverse is nearer the truth : for in those cases where the rule has been relaxed, it has been done on the ground that the purchase was at public sale. And this the roman law permitted, as may be seen by referring to Pothier’s Pandectes, vol. 6, p. 540. Private purchasers are more particularly within the evil avoided by the prohibition, and to guard against them was the prohibition more evidently framed. The defendant has averred that the act of sale was in fraud of his rights. Such an averment, however, was not necessary for his case. It is the incapacity of the executor to purchase, and not the injury done to the defendant, which renders the sale void. In the language of Judge Porter, in the case cited above, from 11 Martin, the purchase may have been advantageous to the seller, yet as it is in contravention to a prohibitory law, it is void. In 'Munroe v. Allair, 2 Caines’ Cases in Error, 183, the question arose on demurrer to the bill, and the ■demurrer was sustained.

      It was attempted in the court below to bring this case within the provisions of the act of 1840, allowing executors, curators and others, in certain cases, to become purchasers at the sale of the succession property, and confirming previous purchases, unless suits were'instituted within two years from the passage of the act. That act, in its preamble, does not purport to repeal, but simply to construe, articles 1139, 1784. The plaintiff’s interpretation would repeal them, if the act allows the persons therein mentioned to purchase at the sale of the succession property. What sale is meant here 7 Clearly none other than the public sale which takes place in the regular administration of the succession; and this is more apparent'from the extension which this act has received by the act of 1841, applying it to tutors. It will hardly be urged that the private purchase by the tutor, of the interest of his ward, is allowed under the act of 1840; and yet that act extended the same rights to tutors as axe enjoyed by executors and others under the act of 1840. The evident intention of the legislature was, to relax the rule only so far as to permit the executors and others in certain cases to bid on the property and become the purchaser, at public sale, thereby giving them the same privilege as existed in the roman law, but surely not intending, in opposition to the experience and'policy of every civilized country, to open the door to the many evils which an abrogation of the prohibition of articles 1139 and 1784 would inevitably produce.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, being the testamentary executor of his father, William Ross, represents that the testator left at his death five children, George, John, Robert, Ann, and himself, each of wbom inherited one-fifth of his succession; that Ann subsequently died intestate and without issue, leaving her brothers her heirs, each for one undivided fourth. He further alleges that he purchased the share of John Ross, on the 20th of June, 1835, and that the share of Robert Ross, now deceased, was purchased by him and George, he, the plaintiff, having paid $1,400, and George $600, of the purchase money. He avers that, in consequence of his purchase, John’s share in the succession is limited to the fourth of the share of Ann, and claims that the remainder be divided in the proportion of five-eighths to himself and three-eighths to George. To this petition praying fora partition'of the succession, John Ross answered, that the pretended sale under which the plaintiff claims his share in the succession was a complete and absolute nullity; that the plaintiff was legally incapable of acquiring by purchase the defendants’ interest in the succession ; that the sale was made in fraud of his rights, and that the price was inadequate and dis-proportioned to the value of the thing sold. ‘He further averred that, by reason of his incapacity to purchase, be has no title to the share of Robert. George Ross, the other defendant, filed a general denial, admitted the heirship; and joined in the prayer for a partition. The court below rendered judgment according to the prayer of the petition, and the defendants appealed.

In the case of Michoud et al. v. Girod et al., on which the defendants mainly rely, the Supreme Court of the United States remarked: « We scarcely neecf add that a purchase by a trustee of his cestui que trust, sui juris, provided it is deliberately agreed or understood between them that the relation shall be considered as dissolved, and there is a clear contract, ascertained to be such after a jealous and scrupulous examination of all the eireumstances; and it is clear that the cestui que trust intended that the trustee should buy,and there is no fraud, no concealment, and no advantage taken by the trustee of information acquired by him as trustee, will besustained in a court of equity." 4 Howard, 556. This rule of equity jurisprudence harmonizes with the dispositions of our Code. The incapacity created by arts. 1139, 1784, endures as long as the relation of trustee and cestui que trust, and no longer. If the contract by which the trustee acquires the property previously committed to his charge, necessarily terminates that relation,- it may be voidable on other grounds, but it does not come within the prohibition.

The sale by two of the heirs, in this case, of their hereditary rights, necessarily implies the deliberate intention on the part of the vendors that the relation of trustee and cestui que trust should cease, so far as their shares went. There is a clear contract made by persons capable of contracting, and who intended that the trustee should buy.

Fraud and concealment are alleged, but no evidence whatever has been adduced in support of the allegation. It is contended that, in the sale of John Ross, concealment and fraud are proved by the inadequacy of the price. The evidence of this fact is very loose and unsatisfactory. But if it was the reverse, the plaintiff has pleaded the prescriptions of four and ten years ; and we are of opinion that one of the two pleas must avail him. Civil Code, arts. 1870, 2218.

Inadequacy of price is either lesion or evidence of fraud. If it is lesion, the action is barred by four years. If taken as evidence of fraud, the action is limited to ten j ears from the discovery of the fraud, which, in a case like this, must, for want of better evidence, be taken to be the date of the sale. The prohibition found in art. 1784 of the Civil Code, on which the defendants rely, is analogous to that found in art. 1596 of the Code Napoléon. The nullity which this last article establishes is held by french commentators and courts of justice to be merely relative, and introduced exclusively in the interest of the owners of the property of which that article forbids the sale. Rogron, Code Civil, on art. 1596. 3 Delvincourt, p. 66, 126, notes.

It is a rule that admits of no exception that, every man who has the right to attack an onerous contract which the law declares null for his private benefit, makes it valid and obligatory upon him by his ratification, express or implied, or, in default of ratification, by his voluntary execution of it subsequently to the period at which the obligation could have been validly confirmed or ratified. The sale made, without the formalities of law, by the tutor, of the immovables belonging to his ward, is considered in law as an absolute nullity; and yet the minor may ratify it, expressly or tacitly. L. 10, ff. Re Rebus Eorum. Toullier, vol. 7, nos. 594, 595, 596 ; vol. 8, nos. 517, 518. Every nullity which may thus be ratified, is held by the french courts to be prescribed by ten year's, under art. 1304 of the Napoléon Code, which is word for word the same as art. 2218 of our Code. This has been the jurisprudence of France ever since the ordinance of Louis XII, passed in 1510, for the purpose, as is therein stated, que les domaines etpropriüés des chases ne soient incertaines et sans súreié, es mains des possesseurs d’iceües, si longuement qu’ils Vont etc ci-devant. Francis I, in an ordinance passed in 1535, re-enacted this disposition, and gave the same reasons for its necessity. The Code Napoléon, says Toullier, has sanctioned the disposition of this ancient legislation; it does not distinguish whether the nullity is absolute or relative, or the causes in which it originates, but fixes in all cases the duration of the actions of nullity and rescission to ten yoars, in order to insure the stability of transactions and the peace of families. 7 Toullier, no. 599.

The only class of nullities to which this prescription is considered in France as inapplicable, are those resting on motives of public order or utility, or taking their source in the respect due to morals; and, even in those cases, if the con. tract ceases to be illicit, it is from that time susceptible of ratification, and the prescription of ten years is applicable to it. We must presume that our law-givers in adopting this disposition of the law of France, intended that it should receive here the application it has received there during the last three centuries. It has been thus uniformly understood heretofore, and nothing would authorize us to change in that respect the jurisprudence of the State.

Bonford, for a re-heaving.

The judgment of the court in this case, so far as it concerns the rights of John Ross, is based upon the prescription of ten years, pleaded, for the first time, by the plaintiff in this court. Petitioner submits that the Supreme Court is incompetent to pass, in the firs! instance, on any issuable plea. Tho constitution limiting its jurisdiction exclusively to cases and questions presented by way of appeal from an inferior tribunal. Whether or not a right or obligation is extinguished by prescription is a mixed question of law and fact,to be tried and determined upon pleadings and issues properly made up between the parties. If this issue be for the first time tendered to the opposite party, when the case is in the Supreme Court, no other action ean be had than to remand the case for farther action to the inferior court.

It is assumed by your petitioner that, without the intervention of the plea of prescription, he would have been entitled to have had the sales to the plaintiff' annulled.

The court lays much stress upon that portion of the opinion of the United States Supreme Court, in the case of Michoud v. Girod, in which it is intimated that a case might possibly present itself, in which a sale, by a cestui que trust to his trustee, might be sustained by a court of Equity. Although the court there puts the case as an extreme one, it is still difficult to reconcile this portion of their opinion with the absolute and unqualified declaration of the incapacity of trustees to purchase, as set forth in other portions of that document. It is to be observed that the cases quoted in support of the modification of the rule, are all english cases, which were carefully and elaborately reviewed by Chancellor Kent in the case of Davoue v. Fanning, 2 John. Chan. Rep. 254, who did not hesitate to express his disapproval of them, and to insist on the absolute and unqualified character of the incapacity. But a very wide distinction is to be observed between the present case and that of Michoud v. Girod, in so far as the reasoning of the Supreme Court, just referred to, can be held applicable. It must not be forgotten that in the Girod case, the court was sitting as a court of Equity ; that it was administering relief according to the rules of equity proceedings, and according to the maxims and principles prevalent in courts of Equity. They were considering the extent of the general maxim, created by the english Equity courts, that a trustee can never become á purchaser. They were not, in that branch of their opinion, quoted by the court in the present case, passing upon the effect to be given to an absolute, stringent statutory provision. Neither at common law, nor by statute in England, did the incapacity in question exist. It was created by the court of Equity, and the Supreme Courtof the United States, in examining the doetrine of the cases upon this subject, took occasion to quote, with approval, the modification which the english courts had thought proper to make. Equity courts administer relief according to the circumstances of the particular case : and although, where the law determines the right of the parties, they are bound equally with courts of law to follow and observe the law, yet where they are applying principles and maxims which have been created by their own tribunals, they will never consider these of so unbending a character, but that they shall be made to yield to the peculiar circumstances of a case not within the mischiefs designed to be guarded against by the rule. The third' chapter of Story’s work on Equity Jurisprudence, contains numerous instances.

The defendants have generally denied the allegations of the plaintiff, and the correctness of his account. The sale from Robert to him and George, states them to have been joint and equal purchasers. But the account presented distributes this share as if 551,400 of the price had been paid by the plaintiff, and 55600 only by George. There is no evidence in the record to justify that distribution.

Same Case — On an Application por a Re-hearincj.

But in the present case no such discretion can be assumed. The incapacity, if it exist at all, is of positive legislative enactment. The law has made no exception, and the courts can create none. On this subject the 19th article of the Civil Code may be invoked : “ When, to prevent fraud or from any other motive of public good, the law declares certain acts void, its provisions are not to be dispensed with on the ground that the particular act in question has been proved not to be fraudulent, or not to be contrary to the public good.” If the law has declared that an executor shall not purchase any portion of the estate committed to his charge, it is not in the power of the tribunals to declare, in any given case, that such a purchase is valid, because not within the mischief which occasioned the rule.

The grounds of public policy on which this incapacity is created, are apparent. When article 1596 of the Napoléon Code was presented for examination, we find reasons of public policy most prominently brought forward to justify its adoption. Thus: “Les raisons de sfireté et d’honnéteté publiques qui motivent ces défenses sont trop evidentes pour qu’il soit nécessaire de les developper.” Poncelet, Motifs du Code Civil, tome 1, p. 592. And Mr. Portalis : “ II convient d’ecarter d’eux jusqu’au soupfon qu’ils ont abusé de leur autorité ora de leur ministers.” Locré, Code Civil, á Particle 1596, p. 134. Troplong, in deciding that the offending party cannot avail himself of the article in question, says: “ Lesincapablés dont il vient d’etre question, ne serait pas fondés a s’en prévaloir eux-mémes. Leur propre délit ne saurait étre une raison de Ies affranchir de leurs obligations.” Duranton is to the same effect.

The court rely principally upon Toullier, vol. 7, no. 599, and upon Rogron, in coming to the conclusion that the nullity is cured by the prescription of ten years. Toullier’s views, upon the subject of nullities, and of the prescription by which they are affected, seem to be peculiar. It is certain that they are not assented to by the more modern commentators. Troplong makes an able reply to the doctrine of the articles of Toullier, quoted by the court, in which he is sustained by the opinion of Duranton. See Troplong, Vente, no. 249. Duranton, vol. 12, nos. 523, 524. Rogron, as cited by the court, simply decides that the nullities mentioned in articles 1596 and 1597, are relative with respect to the persons who can take advantage of them. But, as conclusive evidence that the question of prescription is not affected by this, we find'Troplong giving as an instance in which prescription is not pleadable, the case of an attorney purchasing a litigious right. Troplong, Prescription, no. 905. The case being one of those prohibited by art. 1597, and the nullity, as determined by Rogron, being of precisely the same character as that declared in art. 1596.

The jurisprudence of this State has been settled by a series of decisions, determining the character of the nullity of a purchase made by an executor. Since the case of Harrod v. Norris, 11 Mart. 298, the Supreme Court has liad occasion more than once to apply the doptrinos therein declared. In the case of Macartyv. Bond’s administrator, 9 La. 351, the court insists that where an executor attempts to purchase, his incapacity is such that the contract of sale cannot exist. The nullity is of so radical a character, that it destroys the contract in its very inception. So in Scott, Executrix v. Goton’s Executor, 1'4 La. 123, it is expressly, declared that the nullity is absolute. The court declares that it is of no-consequence to examine, whether or not injury has been occasioned to the parties for whose benefit the property is administered. The prohibition to purchase being absolute, the incapacity is equally so.

In this case, the relation of the plaintiff to John Ross, as executor to their father’s estate, still exists. The petition itself of the plaintiff shows that this relation still exists.

The opinion of the court was pronounced by

lime, J.

The judgment of the District Court is reversed, and the case remandedfor anew trial; the appellees paying the costs of this appeal.


author: Slidell, J.

text:
    The Mechanics and Traders Bank v. Labiche et al.
    The omission of a person elected to the office of sheriff to give bond within twenty days from the date of his commission, as required' by the stat. of 20 April, 1847, does not, ipso Jacio, .operate a forfeiture of the office. -If a bond be subsequently executed, be will be thereaf* ter competent to execute process.
    The omission by a sheriff togiveabond as collector of taxes, does not, per se,-affect-his capacity as to the execution of judicial process.
    APPEAL from the District Court of St. Landry, Overton, 3.

      'Swayze, for the plaintiffs.

      W. B. Lewis, for the appellant,

      Labiche, cited La. Dig. p. 48, s. 259; p. 49, ss. 261, 263, 264; p, 51, ss. 269, 276; also, ss. 273, 274, 282. Const, aits. 83, 142. Acts of 1847, p. 108; of 1848, p. 85'. Linton, appeared for the sheriff.
   The judgment of the court'was pronounced by

Slidell, J.

The return of citation states a service upon the defendant as made on the 28th April 1848, and is signed Harrison Rogers, sheriff. Labiche filed an exception in which he declined to answer, because no citation had been legally served upon him. He pleaded that Rogers, who assumed to act as sheriff of the parish of St. Landry, was not such sheriff, and had no authority to act as such, because lie had not furnished his official bond with sureties, as by law required, within twenty days from the date of his commission; that such failure vacated the office; and that no subsequent enactment extending the period for furnishing an official bond, eould cure .the forfeiture of office created by the omission. By a further plea it was alleged that, he had not given any bond as collector of taxes.

Rogers was elected under the constitution of 1845. His commission bears date in November, 1847, and was received by him in December following. He executed his official bond on the 10th April, 1848, and took the oath on the 15th April, 1848. No bond has been given by him for the faithful eollectiou of taxes.

Statutes enacted prior to the adoption of the present constitution have been .cited by the defendant’s counsel. Were those statutes applicable to the present enquiry, we would not be prepared to assent to the .conclusions deduced from them by counsel. But, in our opinion, the subject is embraced and is controlled by the statutes of 5 847 and 1848, enacted under the existing constitution in furtherance ,of the organization of the new system of government established by it. •

The 83d article of the constitution ordains the election of sheriffs by the people. The act of April 20, 1848, provides that the public officers comprehended in its terms, shall execute their official bonds before the recorder &c., within twenty days from the date of their commissions, and before entering upon their duties. We find nothing in this language, nor in any other provision of this statute, which would justify us in holding that the omission of a sheriff to furnish his bond within the twenty days, ipso facto, operates a forfeiture. What power or remedy might in such case be exercised by the governor, or other department of the government, it is unnecessary to consider. No action has been taken by the governor, or other constituted authority. The State has claimed no forfeiture. We are clearly of opinion that, Rogers, a duly elected officer, did not cease, by the mere lapse of the twenty days to be clothed with such inchoate capacity as was conferred by his election and commission ; and that when he gave his official bond on the 10th, and took his official oath on the 15th, April, 184.8, he was competent to execute thereafter the process of the court.

We can still less entertain any difficulty upon this subject when we consider the statute of March 10, 1848, (Actsp. 85,) which gave an extension of thirty days to those sheriffs and tax collectors, “ who have been already elected, and who have been unable to give bond under the existing laws.” This statute isa clear legislative recognition of the interpretation we have given of the prior law. For if the office had become by the omission, ipso facto, vacant, it would have been an unconstitutional usurpation of power on the part of the legislature to clothe an individual with an office, which, under the constitution, could only be conferred by the popular suffrage. The unconstitutionality of a law, enacted as it is by the immediate representatives of the people, is not to be jightly pronounced- The conflict between the constitution and the law should he clear. We do not see any such incompatibility in the present case.

We are also of opinion that, the omission to furnish a bond as tax collector did not, per se, affect the .capacity of the sheriff, with regard to the execution of judicial process- Judgment affirmed.


author: Eustis, C. J.

text:
    Crow v. Walsh et al.
    A surety on a twelve-months’ bond does not, by paying it, become subrogated to an equiva lent portion of the judgment under which the property for which the bond was given was adjudicated. He is subrogated only to the rights of the creditor of the bond, acquiring no interest in the judgment.

      APPEAL from the District Court of St. Martin, Overton, J.

      Grow, appellant, fro se,

    contended that by payment of the twelve-months’ bond he became subrogated to the rights of the judgment creditor. C. C. 2102, 2157. 8 Mart. 706. 1 La. 401. 6 La. 63, 474. 11 La. 50. Lewis, on the same side.

      Magill, for the defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

In this cnse the plaintiff, who was the surety on a twelvemonths’ bond, endeavors to avail himself of the original judgment under which the property was sold, for which the bond was given, on the ground of Lis being subrogated to the right of the original plaintiff in the suit.

We have had occasion to examine the question as to the extent of the subrogation of sureties in such cases, which we consider as settled by our previous decisions. Trent v. Calderwood, 2 An. 942. Tardy v. Allen, ante p. 66. Old v. Chambliss, ante p. 205. Judgment affirmed.


author: Slidem, J.

text:
    Soller v. Mouton.
    An action on a contract made with an association must be Brought in the name of all the individuals composing it. if unincorporated, (G. C. 437); if incorporated, in its corporate name. C. C. 433. No recovery can Be had in an action on snob a contract by the president of the association, where the prayer is for a judgment in his favor individually.
    APPEAL from the District Court of Lafayette, Overton, J.

      Brent, for the plaintiff.

      C. H. Mouton, for the appellant.
   The judgment of the court was pronounced by

Slidem, J.

The plaintiff alleges that the defendant engaged him to instruct his two sons in various brances of learning. Which he did and caused to be done; that the defendant thus became indebted to him in the sum of $1,600, of which a.part has been received, and the balance of $362 37 is still due; for which plaintiff prayed judgment in his individual favor. In an amended petition the plaintiff alleges that, the defendant’s children were under his charge, and taught at the college of St. Charles, the direction and management of which was under his control, as president. He prayed for judgment as in his original petition. The defendant pleaded the general issue. He also specially denied that he had employed the plaintiff to instruct his children, alleging that he had sent his children “ to St. Charles College, an institution under the direction of Jesuits,” and that he had paid whatever he owed to said college. A judgment was rendered in favor of Soller individually, against the defendant, for $200; and the defendant has appealed.

At the trial of the cause it appeared that the St. Charles College was an institution conducted by Jesuits. It had a president, treasurer, and other officers. At the time when the sons of the defendant were received there, another person was pesident; subsequently, and shortly before his children left the college, the plaintiff acted as president. The nature of the association does not fully appear; but it is clear, under the evidence, that an association, and not the plaintiff, was the proprietor of the college. It is not proved that the plaintiff personally had any pecuniary interest in its affairs.

It ¡3 evident that no contract was made with the plaintiff in his individual capacity, and that he is not individually tho creditor of the defendant. The contract was with an association. If the association was an unincorporated one, the su*t: should have been brought in the name of all the individuals composing it; if incorporated, in the corporate name. The plaintiff has shown no indebtedness to himself, nor any right to sue and recover individually. See Civil Code, arts. 423, 437.

The judgment in the court below is reversed, and judgment is rendered for defendant as in case of non-suit, with costs in both courts.


text:
    De Blanc v. Dumartrait.
    The owner of an undivided third interest in certain real estate, having mortgaged it to plaintiff, by an act duly recorded, subsequently sold his third to the owner of the other two thirds. A creditor of the latter, who subsequently obtained a judgment against him, seized the whole property under execution, and sold it for a price less than the mortgage upon the one-third, and the whole price was paid to the judgment creditor. The first mortgagee was not a party to these proceedings. In an action by him against the purchaser as third possessor : Hdd, that plaintiff’s mortgage-rights are protected by arts. 683, 684 of the Code; and that, under art. 709, he is entitled to an hypothecary action against the purchaser at the judicial sale, as a third possessor who has taken subject to the mortgage.
    APPEAL from the District Court of St. Martin, Overton, J.

      Magill and Olivier,

    for the plaintiff, cited C. P. 709, 684. 1 An. 32. 2 An. 119.

      E. Simon, for the appellant.
    This is an action of mortgage, in which the plaintiff prays that the defendant, who is the owner and in possession of a certain town lot and brick building erected thereon, alleged to be mortgaged for one-third thereof, as security for the payment of a sum due him by two individuals, be condemned to pay him said sum, and that the property be seized and sold to satisfy his demand. The mortgage on which this suit was brought, wais executed on the 17th March, 1840, by two partners of two distinct commercial firms, each upon his undivided and indivisible portion, to wit: Pierre Gary, of the firm of Gary Sf Fournet, upon his two-ninths, and J. £. Derbés, of the house of Derbés, Delahoussaye Sf Co., upon one-ninth. A short time after-wards the property was acquired, in toto, by Derbés, Delahoussaye <$• Co., who continued to own it, until it was sold by the sheriff at the suit of one of the creditors of the firm. On,the 6th of November, 1840, Waterston, Pray Sf Co., creditors of Derbés, Delahoussaye Sf Co., obtained a judgment against said firm, which was duly recorded on the 11th of the same month. The debt wac contracted by the firm, in August, 1839; the judicial mortgage of Waterston &f Co., extended over the whole and entire property, and, though indivisible by law, was the first in rank for two-thirds of the property, also indivisible by its nature. The property thus mortgaged could never, owing to the state of indivisibility, be divided butby a sale thereof; and accordingly, as there was no occasion to cause it to be sold in order to divide its proceeds between the co-proprietors, it was at once seized by the sheriff on the execution that issued on their twelve months’ bond, and sold integrally to the defendants, who, not aware of the existence of the plaintiff’s mortgage, paid the whole price to the sheriff, who paid it over to the seizing creditors, as no opposition was made to his disposing of it according to the writ, which he was bound to return. The mortgage-right of the plaintiff was, by the effect of the sale, transferred from the property to its proceeds, which became subject to be divided between the creditors entitled thereto; and that, therefore, said property could not be sold, and was not sold subject to any mortgage; otherwise it could never have been sold. Under its peculiar circumstances, this case presents a question which is not without importance: Can a mortgage creditor of any one of the partners of a firm, or of any 'one of several co-partners, prevent the sale of the whole undivided and indivisible property owned in common by his debtor or by others, when his right extends only over the mortgagor’s undivided and indivisible portion, and when such sale is to be made either at the suit of a mortgage creditor of the firm whose right extends over the whole, though inferior in rank as to a certain portion thereof, or for the purpose of making a division thereof between the co.proprietors? Is not such private creditor’s mortgage, by the effect of the forced sale of the property, transferred from the thing to its proceeds in the hands of the sheriff ? And, if he fails to enforce his rights by means of a third opposition, can he be allowed to proceed subsequently against the property, in the hands of the purchaser and third possessor thereof?
    I admit that, in ordinary cases of the seizure and sale of property subject to any mortgage or privilege higher in rank on the whole than that of the seizing creditor, such property must be sold subject to such mortgage or privilege (C. C. arts. 679, 683, 706) ; that, therefore, the previous mortgagee’s right upon the property continues to exist; and that, if the price offered for it is not sufficient to discharge the anterior mortgages, there cannot be any sale. C. C. art. 684. I admit also that the purchaser of such property at sheriff’s sale, becomes, in case of his not discharging the previous mortgages, subject to be acted against as a third possessor. C. C. art. 709. But I contend that those rules do not, and cannot, apply to the rights of the parties to this controversy ; that, under its peculiar circumstances of indivisión and indivisibility, the plaintiff’s remedy was by third opposition on the proceeds whilst in the hands of the sheriff, and that, he cannot exercise any recourse against the property in the hands of the defendant.
    It isa well known principle that, a mortgage is in its nature indivisible, and prevails over all the immovables subjected to it, and over each and every portion. C. C. art. 3249. So here, the mortgage of the seizing creditors could not be divided ; they had the right, and wore even bound, to enforce it over the whole property, as they clearly could notseize and sell any undivided or indivisible portion thereof. Still, however, their judicial mortgage was indisputable, and first in rank on two-thirds of the property seized; and it is obvious that, as théy could not legally and properly limit their seizure to that proportion, as they could not divide their mortgage, it was impossible to proceed in any other manner but by selling the whole, though their right may have been, as to one-third of the property, inferior to that of the plaintiff The mortgagees were in a state of indivisión; neither could act separately without putting the property integrally under the hammer of the sheriff; the thing mortgaged was also indivisible — a house and lot (C. C. art. 2104), and was, in its state of indivisibility, subjeet to the exercise of the mortgage-right of the seizing creditors.
    How then could the rule pointed out by art. 684 of the Code of Practice, be applicable ? Or, how can it be pretended that the property is yet, in the hands of the defendant, subject to the plaintiff’s mortgage ? The amount due to the plaintiff could form no part of the price, beyond, perhaps, the one-third thereof, and the defendant purchased the entire property. The debt secured by plaintiff’s mortgage was too large in proportion to the real value of the entire property, to expect that one-third of the price given for the whole would be sufficient to satisfy said plaintiff’s claim, and yet it is insisted that, according to art- 684, there was no sale. No sale of what ? Was it of the entire property or of one-third thereof? This cannot be pretended with respect to the whole, for it is clear the plaintiff’s right does not extend beyond one-third of the property, and the seizing creditors were the first in rank for the other two-thirds; nor can it be so with regard to the undivided portion subject to the plaintiff’s mortgage, as that would be in direct violation of the rules of law relaitve to the indivisibility of the mortgage and of the thing subject thereto, and the seizing creditors would then virtually be compelled to divide their rights, and to enforce it only on a portion of a thing in its nature indivisible. "Under such circumstances, what could the sheriff or the seizing creditors do ? Could they divide the property, and sell it by portions ? No ; for the mortgage could not be divided, nor could any distinction be made between any parts of the thing subject to two different mortgages of equal dignity on different portions, and the whole was subjeetto the creditors’judicial mortgage. Were they bound to make the amount due to the plaintiff out of one-third of the price ? Surely not, for that would have prevented the sale of the whole: and the mortgage-right of the seizing creditors on the other two-thirds would thus have become illusive and nugatory. This would be a kind of indivisión of rights, in which a dormant mortgage creditor could compel the other to remain; as whenever the latter would attempt to enforce his mortgage by the sale of the property, the inaction of the other would always prevent the sale, if such property was so situated as not to bring enough to satisfy the debt due to the inactive creditor. This our laws can never have contemplated, and I contend fhat the plaintiff’s remedy— his only remedy — if he fail to proceed to the foreclosure of his mortgage by proceedings had at his own suit, was by third opposition, duly exercised on the proceeds of the sale, under arts. 396, 401, and 402 of the Code of Practice. If there ever was a case in which the third opposition was to be properly resorted to, it is this ; it would have afforded the plaintiff- the means to get his portion of the price under the right of preference for one-third, and the seizing creditors would only have received the amount to which they were really entitled.
    Reasoning by analogy, (indeed, there is great similarity in the two cases, and they should be governed by the same rules. C. C. art. 1304), how would it be if the property, instead of being owned jointly by the members of a partnership or by ordinary co-proprietors, belonged jointly to co-heirs, one of whom had given a mortgage on his share to secure his private debt ? Could it be seriously pretended that the private creditor would have the right of preventing the sale of the property, to make a partition thereof or to pay a debt of the estate ; or that such property should be sold subject to his mortgage to the extent of his debtor’s portion? Surely not. In such a case, the proceeds of the share so mortgaged would stand in lieu of the property, and be subject to the claims of the mortgage creditor. Succession of Pigneguy, 12 Rob. 450, and the authorities there cited. So should it be in this case, and in all other cases, where, from the circumstances of the indivisión and indivisibility of the mortgage and of the property subject thereto, the thing owned in common, (a slave for instance,) could not be sold by separate portions, or to an amount sufficient to satisfy the private debtor’s claim, under his partial mortgage.
    Whenever property owned in common by co-heirs or other co-proprietors is indivisible by its nature, it must be sold. C. C. art. 126. No one can be compelled to hold property with another. C. C. 1215. And it does really strike me that, if this honorable court were to say that there was no sale of the-portion subject to the plaintiff’s mortgage, unless it brought an amount sufficient, in proportion to the price of the whole to satisfy his claim, or that the property having been sold integrally, remained subject to his said partial mortgage, such a decision, unjust in its consequences, so faras this case is concerned, and greatly injurious to the defendant, would henceforth have the effect of preventing the sale of property similarly situated, and of compelling joint-owners of such property and mortgage creditors of equal dignity on different portions thereof, to remain in a state of indivisión, at least until it might please the private creditor to enforce his right. Again, could Walerslon, Pray 8f Co. seize only two-thirds of the property under a judicial mortgage extending over the whole? Could they have itsold by portions, so as to make a distinction between ihe different portions of the price coming to different creditors of equal dignity ? Could they divide their mortgage, and the thing subject thereto ? If they could not, the sale was legal and valid far the whole, and the plaintiff must be left to his remedy on the portion of the price corresponding with his right.
    I do not deny that a co-heir, or a co-proprietor, may mortgage his undivided portion of the property held in common. He may mortgage it, and his creditors will have the full benefit of it. Tropiong, Hypothéques, v. 2, no. 469. But I contend that the enforcement of such a mortgage must be according to the situation of the thing subject thereto ; that it cannot be in the way of the partition of the property, if it be made by a sale thereof; that it cannot prevent such sale when to be made to pay debts secured by a general mortgage on 1he whole, and partly of the same dignity; and that, when such sale has been effected, the partial mortgage must necessarily be transferred from the property to its proceeds. Under a similar system, it has been decided in France that, “ the persona! creditors of one of several co-heirs, who, before the partition, had taken a mortgage on the undivided property of the succession, ought, in case of judicial sale of such property, to be paid on the portion of the price coming to their debtor, according to the rank of their mortgages.” Dalloz, v. 35, part 2, p. 202. Ibid. vol. 27, part 1, p. 83. This doctrine is law under our Code. See 12 Rob. 450.
    The plaintiff has mistaken his remedy; he ought to have resorted to a third opposition, when the money was in the hands of the sheriff; not having availed himself of the proper remedy, the defendant cannot be made to suffer; and the plaintiff’s mortgage, being discharged by tho effect of the sale, so far as the property solihwas concerned, it has ceased to bear upon it in the hands of the defendant.
   The judgment of the court was pronounced by

Slidell, J.

This is an action of mortgage, against a third possessor of a town lot and a house erected npon it. The mortgage held by the plaintiff was executed in 1840, by two persons, then the lawful owners of interests, amounting, collectively, to one undivided third of the property; and was duly recorded.

Subsequently they sold their interests, and Derbés, Delahoussaye Co. became the owners of the entire estate. A creditor obtained a judgment against Derbés, Delahoussaye Co., in 1841; and, upon execution, seized and sold the entire property for a price less than the plaintiff’s mortgage-claim upon the undivided third. The purchaser, the present defendant, paid the money into the hands of the sheriff, who paid it to the judgment creditor. De Blanc was not a party to these proceedings, and was a stranger to them.

It is now urged by the defendant that, he holds under a judicial sale provoked by a judgment creditor, whose mortgage covered the entire property, and was the first in rank as to two-thirds of it; that the judicial mortgage was indivisible; that, by the effect of the judicial sale of the entire estate, the plaintiff’s mortgage was transferred from the thing to its proceeds, in the hands of the sheriff; that he should have enforced his rights upon the proceeds, by a third opposition in the suit in which the judicial sale was provoked, and has no hypothecary action against the defendant.

It may be conceded that, the position of a mortgagee of an entitre esate, indivisible by its nature, an undivided interest in which has been already encumbered by a valid mortgage, may be inconvenient. Whether, in such a case, the' aid of a court of justice might not be invoked to bring in all the mortgage creditors, decree a sale of the ¡entire land, and make an equitable distribution of the proceeds according to the relative rank and interests of the mortgage creditors, is a question which we do not now attempt to consider or decide. VÍ6 shall confine our inquiry to the case before us, in which the purchaser hold's under a forced sale, upon proceedings to which the first mortgagee wTas not a party. •

The plaintiff claims under a lawful mortgage, antecedent in point of time hr tire rights of the judicial mortgagee, and prior in rank to the extent of the interest mortgaged to him. Having such prior right, he was protected by the 683d and 684th articles of the Code of Practice. “ If there exist on the property any privileges or special mortgage in favor of other persons than the judgment creditors, and which are preferred to him, the sheriff shall announce that the purchaser shall be entitled to retain in his hands, out of the price for which the property was adjudicated, the amount required to satisfy the privileged debts and special hypothecations to which the property sold was subject, &c.” “ Consequently if the price offered in this case, by the highest and last bidder, is not sufficient to discharge the privileges apd mortgages existing on the property, and which have a privilege over the judgment creditor, there shall be no adjudication, and the sheriff shall proceed to seize other property of the debtor, if there be any.” Article 70Ó provides the remedy for the prior mortgagee ; “ The hypothecary 'action lies against the purchaser of property seized which is subject to privileges or mortgages in favor of such creditors as have said privileges and mortgages, in the same manner, and under the same rules and restrictions as are applicable to a third possessor of a mortgaged property.”

Although, in the present case, tho first mortgagee was not the mortgagee of tile entire estate seized" and sold, yet iteimnotbe' said' that He is not Withiii tlio' let;ter of the Code. If the judicial mortgagee had confined his seizure and sale' to the two-thirds not covered By the plaintiff’s mortgage, the' plaintiff could not' have complained ; but when he seized the whole, he seized the portion encumbered by a prior mortgage; That theplaintiff’s case is within the spirit of the Code is too plain to require discussion. The intent of the lawgiver was to protect the prior encumbrancer.

We are not prepared to say that; the plaintiff might not have treated the sale, quoad the one-third mortgaged to him, as an utter nullity. But it is quite clear that, as the defendant chose to take the property, pay the price, and enter into possession, he may be treated as a third possessor who’has taken subject to the mortgage; and,-as he refuses to pay the debt, the plaintiff has a right to have it sold. ' If there be hardship; it oould have been obviated by greater diligence on the part of the defendant, in ascertaining from-the public records the condition of the estate-

We may remark that, the case of Figneguy, cited by counsel (12 Rob. 450,) differs essentially from the present. There an heir mortgaged his undivided fourth interest in am immovable belonging to a succession, then under administration, and unliquidated. The property was sold under an order of the Court of Probates, for the purpose of liquidating the succession, and effecting a partition-; and the- contest was between the mortgagee and a subsequent purchaser of the heirs’ rights. The proceeds of the sale were considered as standing in the place'of the mortgage. The property, at the time of the mortgage, was the property of the succession, subject as such to its liquidation and partition ; the mortgage was of the heir’s share, and the Code expressly declares that such mortgages are dissolved of right upon partition, except upon the property which falls to the heirs who have given the mortgage. Here the mortgagors were the direct and absolute-owners of the undivided third of the property mortgaged. Judgment affirmed.


text:
    Foster et al. v. Roussel.
    The sole object of the notice required to he given to a defendant in execution to appoint an appraiser, is to give him an opportunity to make an appointment. If he have done so, it is idle to enquire whether he had-notice or not.
    Any informality in the advertizement of a judicial sale is cured by the prescription of five years, established by sec. 4 of the stat. of 10 March, 1834. The statute applies to sales made previously to its enactment; but the prescription of five years runs only from the date of the statute, as to anterior defects and- informalities.
    APPEALfrom the District Court of St. Mary, Overton, J.

      Crow, for the appellants.

      Sjplane, for the-defendant.
   The judgment of the court was pronounced by

Slidell, J.

The object of this action is to enforce an alleged legal mortgage upon property in the hands’of a third possessor, who derives title, through various mesne conveyances, from a sheriff’s sale upon execution against Foster, the alleged debtor of the plaintiff.

It is urged that the sheriff’s sale was a nullity, and did not divest Foster’s title, because no notice of appraisement was given to him, and because the advertizement of sale was not duly made. We shall proceed to the consideratiea of Üjiose objections, withont enquiring whether the plaintiff is competent to raise them.

The objection that the sheriff’s return does not state that Foster was notified to appoint an appraiser, is ineffectual. The return shows that he did appoint appraiser, who acted. 'The sole object of notice is to give a defendant in execution an opportunity to appoint an appraiser. If he makes the appointment, it.is idle to enquire whether he had notice or not.

As to the advertizement, it is said that the sheriff’s return states that the property was advertized on the 17th August, yet -that the sale took place on the 8th August. The sheriff’s return shows that the property was first advertized for cash, and afterwards at twetve months’ credit. The .exposure for sale for cash, took place on the 20th July, 1833, and for want of bidders, it was, as declared in the return, re-advertized on that day for the 8th August .ensuing. This latter .advertizement appears to have been regular, and it is obvious from the whole tenor of the return, that the statement that the first advertizement took place on the 17th August was a mere clerical error. But, however, this may be, there is another consideration which is fatal to the plaintiff. The sale took place in 1833, and this action was instituted in 1843. If there .was an informality in the advertizement. it is covered by the prescription of five years, established by the .act of 10 March, 1834. It has been argued by counsel that this statute cannot be invoked, because the sale was antecedent to its enactment. Laws of prescription may undoubtedly be enacted .to take effect upon past as well as future transactions. The only .qualification is, that courts of j ustice in applying a new law of prescription to the past, will not permit the law to retroact beyond its date in the application of the new term to the computa-' tions. It is true that the first section of this statute, prescribing to sheriffs and other public officers the duty of stating in the procés-otíbal, or act of sale, the manner, time and place of making .advertizements, speaks, and very naturally, "of sales hereafter to be made,” But, in the 4th section, which establishes the prescription of five years, there is no such limitation. The interpretation we have given to the statute, accords with the opinion expressed in Valderes v. Bird, 10 Rob. 396, and in another .case there cited.

Judgment affirmed-


author: Kim, J.

text:
    Hawkins v. Dartest.
    Where on -the day fixed for the trial of a case plaintiff’s counsel suggests, orally, the death of the plaintiff, hut declines to support the suggestion by his affidavit, or further to appear in the case, judgment of non-suit must be rendered. The suggestion of plaintiff’s death should have been supported .by the affidavit of the attorney, or by other testimony rendering the death probable.
    Actions do not abate by the death .of the parties. C. P. 21, 361.
    Appeal from the District Court of St. Mary, Overton, J.

      Maskell, appellant, pro se.

    Actions do not abate by the death of the parties. C. P. 21, 120, 361, 903. 1 La. 111. 6 La. 301. 11 La. 357. 6 Rob. 44. 1 Rob. 521. No proceeding can be had, after the suggestion of the death of a party, till his heirs are made parties. 5 Mart. N. S. 430. 3 La. 527. 10 La. 396.
      5 Rob. 2.

      Olivier, for the defendant.
   The judgment of the court was pronounced by

Kim, J.

On tho day fixed for the trial of this cause the counsel for the plaintiff suggested orally the death of the plaintiff, but declined supporting the suggestion by his affidavit, or further to appear in the cause. The plaintiff was thereupon called, and failing to appear, a judgment was rendered as in case of non-suit, from which the security on the sequestration bond has appealed.

It is true, as contended, that actions do not abate in consequence of the death of parties; but some evidence of the alleged death must be exhibited before courts can be required to suspend further proceedings, or authorize new parties to be made. The suggestion of the plaintiff’s death should have been supported by the affidavit of the attorney or by other testimony, rendering the death at least probable. In the absence of such evidence, the judge did not, in our opinion, err, in dismissing the action. C. P. arts. 21, 361. Babcock v. Williams, 10 La. 396. This conclusion renders it unnecessary to consider the motion to dismiss this appeal. Judgment affirmed.


author: SjadeiIv, J.

text:
    Hutchinson v. Sparks.
    The wrongful withholding of notes or other evidences of debt, cannot subject the party to greater damages than would result from retaining a sum of money equal to their amount, which cannot exceed the interest. C. C. 1928, 1929. Proof that the creditor could have used the evidences of debt or notes to greater profit, cannot authorize any other damages than the amount of interest.
    from the District Court of St. Mary, Voorhies, J.

      Maskell, for the plaintiff.

      Splane and Lea, for the appellant.
   The judgment of the court was pronounced by

SjadeiIv, J.

A'contract of partnership was made between the plaintiff and defendant, the terms of which are embodied in the following instrument:

“ March 14th, 1846. 5. E. Hutchinson received of Daniel P. Sparks $1500, to be invested as joint stock for the purchase of corn and other produce. The said Hutchinson is to buy and sell the same (o the best possible advantage, for which, as collateral security, said Hutchinson leaves in possession of D. Sharks two notes of $833 each, drawn by Robert Stuart, endorsed by Henry Gibbon and John Martin, for which said notes are secured by mortgage. All nett profits derived from the proceeds of the $1500, after the necessary expenses, are to be equally divided between said D. Sparks and Hutchinson; also, said SparJcs having bought a load of corn for hjs plantation, said Hutchinson is to deliver to his, said Sparks’, plantation on the bayou Teche, for which said Sparks is to pay the expenses of the boat. S. E. Htjtchihson.”

Under this contract the affairs of the partnership were conducted by Hutchinson, and, a disagreement having arisen, the parties referred their accounts and claims to a third person, who was requested to make a settlement for them. This referee’was the principal witness in the cause. The result of his examination of the accounts of the parties was, that, after ascertaining the profits of She partnership and adjusting the other matters of debit and credit betsveew them, a sum of about $400 was due to,the defendant, and that the plaintiff was entitled to the return of the notes given in pledge. Acting upon this evidence the jury found that the defendant should deliver to the plaintiff the notes sued for, and that the plaintiff should pay the defendant $433 89.

Although the case has been loosely presented, arising probably in some degree from the informal manner in which the accounts of the partnership were kept, we do not feel at liberty to disturb the verdict of the jury in this respect, as it is not manifestly eri'oneous, and rests mainly upon the evidence of a witness who enjoyed the confidence of the parties themselves.

There is, however, a portion of the verdict which we cannot affirm. They allowed the plaintiff the sum of $1,000 as damages for the detention of the pledged notes, besides awarding their return to the plaintiff. The ground upon which this claim for damages was made was, that if the plaintiff had obtained the notes when he demanded them, after the report of the referee, he would have been able to raise money upon them, and could have employed it profitably. To sustain these allegations witnesses were called to prove that, at the time, favorable opportunities were presented for speculation in corn, and that the plaintiff would have been able, with a sum of $1,000, which he could have raised upon the notes, to realize profits to the amount of $1,000. Damages thus remote and conjectural, are inadmissible,

“Withholding from the defendant the evidences of debt upon which he desired to raise money should not induce a more rigorous measure of damages than withholding a like sum of money; and in such case the measure of damages would be interest. See Civil Code, arts. 1928, 1929. Pothier, Oblig. part 1, ch. 2, art. 3. Under the circumstances, we do not think any damages should be allowed. There is nothing to indicate bad faith on the part of the defendant; nor does it appear from the evidence that he has been put in default.

It is, therefore, decreed that, so much only of the judgment of the court below as adjudges the recovery of $1,000 damages, be reversed ; and that, in all other respects, the judgment of the court below be affirmed, the plaintiff paying the costs of this appeal-


author: Edstis, C. J.

text:
    Delahoussaye v. Landry.
    Where an act of sale of a tract of unimproved land, made at a time when the cultivation o! sugar was unknown in that part of the State where the land was situated, established a servitude in favor of the land sold on an adjoining tract, authorizing the purchaser “aprendre du hois pour Vuiilité de son habitation sur <§*c., ce privilége restant attaché pourloujours d la dite terré', the purchaser will not be allowed, oh subsequently commencing the cultivation and manufacture of sugar, to take from the land subject to the usufruct, wood to make his sugar. Per Curiam: The provision of the quantity of wood necessary for the manufacture of sugar could not have been contemplated by the parties, at the time; and were we to authorize the taking of that quantity, what was originally agreed to as an ordinary servitude, might destroy the value of the buiihened estate.
    APPEAL from tbs District Court of St. Martin, Overton, J. The facts of this case are stated in the opinion of the court."

      Brent and Magill, for the plaintiff,
    cited 3 Toullier, nos. 8, 11, 17, 386, 422, 4.24, 469. Pardessus, nos. 6, 234, 236, 237, 238. Domat, b. 1, tit. 12, sec. 1, no. 2. Codo of 1808, Serv. art. 05.. C. ,C. 749, 774. Orleans Navigation Co. v, New Orleans, 2 Mart. 25, 201.

      Simon, for the appellant.
    Our Civil Code, art. 705, which is verbatim the same as art. 686 of the french .code, says, in positive terms, that “ the use and extent of servitudes established by contract, are regulated by the title by which they are granted.” The same proyision existed in the Civil Code of 1808, p. 138, art. 49; and the same rule is repeated in § 3 of .art. 718, with regard to the right of passage, as established bylaw or by convention. Domat, 1. 1, tit. 12, s. 1, § 8, says: “ L© droit et 1’usage dune servitude se régle par le titre qui l'ótablit; et elle a ses bornes et son étendue selon qu’il a été conveuu, si le titre est une convention. Ainsi, celui k qui elle est due, et celui qui la doit, doivent s’en teñir au titre, soit pour laquaiité de la servitude, ou pour les manieres dont 1’un doit user, et 1’autre souffrir.” See also, § 13 and 19, and the same principle is also recognized by Touliier, v. 3, nos. 601, 602, and by Lesage, “ Traite des Servitudes, v. 1, nos. 287, 302, 303, and 305. All these authorities recognize the doctrine that a servitude established by contract, derives its whole force from the stipulations contained in the written act, that its use and extent must be governed exclusively by the terms of the convention under which it was acquired, and that when those terms tire clear and explicit, it cannot be restricted, modified or limited. Pardessus, in his Traite des Servitudes, no. 237, after having in divers preceding articles, examined in what manner the objector intention of the parties could be reached, when the terms of the contract are obscure, uncertain, or doubtful; and after having, in no. 536, adopted the rule that in order to explain the intention of the parties, and suppléer á l’incertitude quelaisse le titre originaire,” “l’état des lieux'et la situation respective des parties el l’epoque si laquelle la servitude a été établie doivent aussi servir a en détermiuer l’étendue et le mode d’exécution,” goes on to say, no. 237: Mais ni l’intention des parties., ni l’usage, ni la position des lieux, ne pourraient l’émporter sur la lettre méme des actes, parce que.ee sent, conformement k 1’art. 686 du Code, ces actes qu.i doivent servir de base.” In no. 18, the same author, speaking of future advantages to be derived from a contract containing the grant of a servitude for the benefit of an estate not in existence at the time .of the deed, says: II ne faut pas toutefois induire que l’ntilité ou l’agrément de Phéritage pour lequel la servitude est crérk doivent exister présentement; un propriétaire peut établir pour son heritage des droits qui ¡ae lui sont pas actuelJement utiles, mais dout il est possible que Pavantage se fasse sentir un jouf &c.; and he further expresses the opinion that a servitude may be acquired for the benefit of an estate whieh does not exist; the object of the stipulation being a future advantage, “ et Pintérét futur n’est pas un motif moins determinant qui Pintérét présent.” So it was in this case: the plantation did not exist at the date of the contract, it was to be subsequently established on the tract of land purchased, .and the servitude was prospective in its operation, or rather in its object or end. See also ¶ 5, no. 56, in relation to conventional servitudes instituted by a title in which the stipulated right is indefinite or unlimited. I conceive this to be also applicable to this case, as, by the terms of the grant, the exercise of the right is indefinitely and indeterminately allowed for the utility (in general) of the defendant’s plantation; and as therefore the owner thereof is not limited to the taking of any particular number of cords of wood, provided such taking has for its object, and be conducive to, any profit which may be derived from the cultivation of the land.
   The judgment of the court was pronounced by

Edstis, C. J.

The defendant claims a servitude on the land of the plaintiff, in favor of a tract of land having ten arpents front by thirty two in depth, .on the bayou Teche, purchased, in 1809, by him from Louis JDelahoussaye, under whom the plaintiff also holds. The clause which gives rise to this controversy is in the following words : “ It est convenu que Joseph Landry est d&ment autorizé par ce present á prendre da bois pour Vutilité de son habitation sur la terre du dit sieur JDelahoussaye, située au grand bois, ce privilége restant attaehé pour toujours k la dite terre de dix arpents stipulée au present acte.” At the time of sale the tract of land of the defendant was unsettled, and entirely uncultivated ; a short time afterwards it was occupied and established as a cotton plantation. In 1829, or 1830, the defendant having converted his estate into a sugar plantation, considered that, under the stipulation above mentioned he had a right to take his wood from the plaintiff’s land for the purpose of making his sugar, and took it accordingly The object of this suit is to restrict the defendant to what the plaintiff considers as a lawful exercise of this servitude. The district judge decided in favor of the plaintiff, and gave damages against the defendant for an abuse of this servitude, and the defendant has appealed.

About the period of the defendant’s purchase, cotton, corn, &c., were the sole products of cultivation in the neighborhood. There was but one sugar house in the whole parish, which was shortly after abandoned. The district judge, in view of the situation of the land, and the condition of the country at the remote period of the sale, was of opinion that the change in the culture of the defendant, twenty years after the purchase, from cotton to sugar, would essentially change and augment the burthen of the servitude, and that the provision of the quantity of wood necessary for the manufacture of sugar from the lands of the vendor, could not have been in the reasonable contemplation of the parties at the time of making their contract; nor did the judge consider that, according to the rules of law, for the interpretation of servitudes, the right claimed by the defendant could be supported.

In this opinion of the judge we concur. At the time this servitude was created, it was not onerous, and the estate' affected could support it without deterioration. Sugar was not then one of the staple products of the State. The present wants of the plaintiff, for the new product of his land, increase many fold, and may increase still more, the burthen; so that what was originally within the province of the parties, agreed to as a common or ordinary servitude may become a devastation, and destroy the value of the burthened estate. The authorities adduced by counsel have been examined, and it is useless to reproduce them in this opinion, in which we confine ourselves to the result of our examination.

The district judge restricted the right of taking wood from the land of the plaintiff to thirty-five cords of wood as the maximum per annum, that being the number of cords of wood sufficient for fuel and rails for the use of the plantation, under the evidence adduced. The appellant objects to this restriction as in conflict with his servitude, and we are not prepared, under the information tion before us, to render it perpetual.

The subject is one of great importance in this portion of the State particularly, aud we feel great reluctance in determining it without further lights. We shall leave the extent of this servitude, as to the quantity of wood and what wood is to be taken, open for further enquiry, and change the judgment appealed from in that particular. The parties themselves may perhaps render a further examination of this subjeet by a court unnecessary.

The judgment appealed from is, therefore, reversed ; and it is ordered that the defendant be perpetually enjoined from cutting or taking from the plaintiff’s land wood for the purpose of making and manufacturing of sugar, and be confined to the exercise of his servitude-to the Wood for the use of his plantation, ¡tour l’utilité de son habitation; and that the plaintiff recover from the defendant the sum of $212 with costs ; the plaintiff paying the costs of this appeal, without prejudice to other matters not included in this decree.


text:
    The Consolidated Association v. Comeau et al.
    A partial payment by a debtor on an obligation interrupts prescription, being an acknowledgment of the debt. C. G. á<186. So \Vhefe' a debtor, who had executed a bond for the amount of a loan and mortgaged property to secure its payment, leases the mortgaged premises, stipulating in the act of lease that it shall not be affected by the death of the lessor, and that the lessee shall pay the debt out of the rent, a payment on the bond by the lessee will have the same effect in interrupting prescription as if made f>y the debtor himself; and this, whether the payment was made before or after the death of the lessor; and where the heirs of the lessor have accepted his succession, they will be bound by the payment. ’ '
    Where, pending an action by a mortgagee' against the heirs of a mortgagor, who had accepted his succession, to enforce his claim against the mortgaged property and against the heirs personally, an attorney, who had appeared for the defendants, purchases a portion of the mortgaged property, the purchase will be a nullity as to the mortgagee. C. C. 2422, 2623. So far as the freedom from the mortgage, resulting from prescription or peremption, is concerned, the right purchased was a litigeous one. The naked title not being in litigation, the purchase of it was not illegal.
    Appeal by plaintiffs and defendants, from a judgment of the District Court of Lafayette, Overton, J.

      Magill and Simon, for the plaintiffs. Mouton and Brent, for the defendants.

      Brent and Voorhies, intervenors, pro ee.

   The judgment of the court was pronounced by

Slidell, J.

The defendants are sued as the heirs and legal representatives of Charles Comeau, a stockholder of the bank, and his wife, upon a bond executed by them to the bank, for a loan under the charter. The bond is dated in March, 1830, and is payable in March, 1831.

A plea of prescription will be first considered. This suit was brought and service of citation was accepted by defendants, in January, 1846. As the bond was not a negotiable instrument, the shortest term of prescription applicable to it is that of ten years. We shall consider it with reference to that term, as the most favorable to the defendants. In doing so, we are not to be considered as expressing an opidionupon the point made by the plaintifls, that the prescription of this obligation was taken out of the ordinary rule by the provisions of the charter of the bank, and more particularly the 6th section of the act of 19th February, 1828. The facts material to the enquiry, and which we consider as satisfactorily proved, are as follows s

The bond bears endorsements of payments on account in 1831 and 1835 ; and a further payment was made in July, 1836, by Lastrapes, Besmare Sf Co,, the factors of Valery Veillon, at his request. In August, 1827, Charles Comeau, with his wife, executed a notarial act of lease to Vallery Veillon and N, B. Pellerin, of a plantation and slaves, which he subsequently mortgaged to' the Consolidated Bank, to secure his stock and loan. The act recites that Comeau intended to obtain a loan upon mortgage from the bank; and one of the stipulations of the lease, which was for the term of fifteen years, and was not to be affected by the death of the parties, was that Veillon and Pellerin should pay the bank the amount of the loan, together with the interest accruing thereon, “in such manner, and by such instalments, as the said bank may require.”

A partial payment by tire debtor upon an obligation, interrupts prescription, being an acknowledgment of the debt. Civil Code, 3486. The payment; by Veillon was not a payment by a stranger, but by a party chargod by Comeau, under the covenant,'to pay the debt. It has, therefore, the same effect as though made by himself. But it is said that, whatever might have been the effect of the payment by Veillon, had it been made during the life of Comeau, it must be considered as ineffectual against his heirs. That he died before the payment, and the mandate, if any was given, expired thereby. The heirs accepted his succession, and were bound by his contfacts. The debt to the bank became their debt, as the defendants admit. How are the covenantsm the lease to be distinguished from other contracts made by the deceased ? The covenants in the lease are not personal. The lease was binding on the heirs of both parties. The death of Comeau did not annul it. The lessees continued in possession to the full expiration of the term, which expired only in 1842. The lessees covenanted to pay the rent, in a certain manner, lawfully stipulated by the parties. One of the modes of payment was, the payment o-f the interest and principal to the bank. By the mortgage it was contemplated that the borrowers should have the privilege of paying by ahnual instalments of one • thirteenth ; and, as we have seen, the lease contemplated payment by instalments. It is impossible to separate this covenant fi;o.m the other covenants, and to treat the others as heritable and this not. The authority, therefore, to make payments to the bank, did not cease with the death of Comeau, bat, like the lease itself, survived, and was binding upon his heirs: The payment, therefore, being binding upon the heirs, and having been made within ten years, even from the date of maturity nominated in the bond, it interrupted prescription. Ten years had not elapsed from that interruption before the institution of this suit. The plea of prescription was, therefore, properly dismissed.

It remains to consider the rights of the intervenors, who are third possessors of a portion of the mortgaged property, and resist the hypothecary action of the plaintiffs,

A suit was instituted by the plaintiffs, in 1844, to enforce their claim against the heirs of Comeau personally, and also against the property mortgaged. In this suit the intervenors, attornies and counsellors at law, appeared for the defendants, and resisted the action, alleging the invalidity, and pleading the pre* scription and preemption, of the mortgage. On the 14th November, 1845, the heirs of Comeau and wife sold a portion of the mortgaged property to the intervenors, without warranty, and with a dispensation of the certificate of mort gage required by the 3328th article of the Code. On the 15th November, 1845, the suit was terminated by a judgment of non-suit, upon motion of the plaintiffs. In the present suit the intervenors appeared as counsel for the heirs, and a similar defence was made as in the previous suit. The two purchasers also presented a petition of intervention, ih which they set up their title by the purchase of 14 November, 1845, alleged their .possession under it, and consequent interest in the suit, united in the grounds of defence pleaded by the defendants, and pleaded specially prescription and the preemption of the mortgage by the failure to reinscribe it within ten years. Their prayer is, that the property purchased by them be declared to be unaffected by the mortgage, and that they be quieted in its possession. The court below gave judgment in favor of the plaintiffs, against the heirs; but sustained the intervention, and exempting the property purchased by the intervenors from the operation of the mortgage.

It is contended by the plaintiffs that, the purchase made by the intervenors can have no effect against the plaintiffs, because it involved a violation of articles 2422, 2623 of the Civil Code. Article 2422 declares that “ public officers connecte(j cour);g 0f justice, such as judges, advocates, attorneys, clerks, and sheriffs, cannot purchase litigious rights, which fall under the jurisdiction of the tribunal in which they exercise their functions, under penalty of nullity, and of having to defray all costs, damages and interest.” Article 2623 defines a litigious right: “A right is said to be litigious whenever their exists a suit and contestation on the same.” The intervenors reply that the case does not fall within the prohibition, because the title to the property is not in dispute. That theLbank does not pretend to be the owner of the land, but merely claims a mortgage upon it.

The argument appears to us unsound. It conflicts with the fair intendment and spirit of the law. So far as the naked title to the land was conceited, there was, indeed,no litigation. But so far as the freedom from encumbrance was involved,-the right purchased was litigious. It was, at the moment of the purchase, a litigated question, whether the mortgage was originally valid or invalid —whether it had, or had not, lost its effect by prescription, or the failure to reinscribe ? In this litigation the intervenors made themselves personal participants, and now renew it, resisting the bank’s claim upon the same grounds which were then contested. The naked title they had a right to buy; but so far as the question of encumbrance was involved, and so far as they avail themselves of their purchase to resist the claim- of the plaintiffs, the purchase is a nullity, and can confer no rights.

It is, therefore, decreed that, the judgment of the District Court be reversed, so far as it sustains the intervention ; that the petition of intervention be dismissed ; that the costs of the intervention in the court below, and one-half of the costs thereof on this appeal, be paid by the intervenors ; that the property described in the act of sale executed by the heirs of Comeau to the said intervenors, by act before C. M. Olivier, notary, on the 14th day of November,1845, whereof a copy is on record in this cause, be seized and sold to pay to the plaintiffs the sum of $8,460, with interest thereon at the rate of eight per cent per annum from the 16th March, 1838, until paid ; that the judgment rendered against the defendants be affirmed ; and. that the defendants pay one-half of the-costs of this appeal;


author: Existís, C. J.

text:
    Succession of Reeves.
    In all probate proceedings the testimony of witnesses mast be taken-in writing. The reorganization of the judiciary under the constitution of 1845 has made no change in the rule;prescribed by art. 1043 of the Code of Practice, on this subject. A non-compliance with-the article maybe taken advantage of by assignment of error on appeal.
    APPEAL from the District Court of Lafayette, Overton,-J.

      Dwight, for the appellant.

      Mouton, Crow, and Oreig, contrA
   The judgment of the coui't was pronounced by

Existís, C. J.

This appeal is taken on behalf of certain minor heirs of the deceased, Joseph Reeves, who reside in the State of Mississippi, from a certain final judgment homologating a tableau of distribution of proceeds of the effect» of the succession, presented by Edmond Reeves, administrator thoroof. The record comes up without any bill of exceptions or statement of facts. The ap-pellant assigns as error that', according to the record, the judgment was rendered without evidence. Mo note or minute of the evidence appears of record ; and, in proceedings of courts of probate .art. 1042 of the Code of Practice appears to be imperative in this respect. It provides that the testimony of witnesses in causes before the courts of probate .shall be taken in writing, and annexed to the record ; and a list shall be made of such documents as are produced by the parties, and are -not annexed to the record, -that they may be read on the appeal.”

The interests of minors and absentees in probate proceedings, have induced our predecessors, on all occasious, to require a compliance with this regulation on the part of those courts; and we do not think the new organization of our judiciary system, under the present constitution, has made any change in this salutary rule, which is to be strictly observed in all probate proceedings, although in ordinary courts no such rule of practice exists.

It appears to have been settled that a non-compliance with this article on the part of a court, can be taken advantage of by assignment of error on the appeal. Tompkins v. Benjamin, 16 La. 200. Graham v. Graham, Id. 203. De Armas v. De Armas, 17 Id. 115. The judgment appealed from was rendered by the judge of the parish of Lafayette. We do not deem it necessary to notice the other matters assigned as error by the appellant.

The judgment appealed from is, therefore, reversed, and the case remanded for anew trial, the administrator of the succession paying the costs of_this appeal.