author: Morgan, J. Ltjdeling, C. J.,

text:
    No. 556.
    State ex rel. Oscar J. Forstall v. The Board of Liquidation.
    Tlio relator is the holder, for various persons, of bonds known as the Levee Bonds, and of other bonds issued for “paying certain debts” under the act of fifteenth of [February, 1866. He prays for a mandamus compelling the board of liquidators to fund his bonds. Critically considered, he rests his rights so to do upon the sole ground that the aot of the Legislature, Ho. li, of the session of 1875, is unconstitutional. The issue is made up by tbe answer of the board, as well as of the State, which denies the validity and legality of the bonds. That issue is, whether the act Ho. 11, acts of 1875, conflicts with the amendment to the constitution adopted in 1874, and the act Ho. 3, of tbe acts of 1874, which this amendment was intended to make irropealable and unalterable by a subsequent Legislature.
    All holders of bonds issued by the board under the act of 1874 are protected in their rights. The Legislature can pass no law affecting their validity; for this would be impairing a contract already consummated.
    But the relator has made no contract with the State under this act. His bonds are not bonds issued under this statute. He asks that bonds be given him in exchange for those he holds.
    There is nothing unconstitutional in an act of the Legislature which gives to the citizens of the State the right to see that no claim set up against it shall be passed until the validity thereof is ascertained. There is no violation of any contract with the relator by the aot in question, because, at the time the act was passed, no contract existed under the act of 1874 between him and the State. The bonds be holds now are in the same condition that they were prior to the passage of either of the acts now under consideration.
    The aot Ho. 11 of the acts passed at the extra session of the Legislature of 1875 and approved on the seventeenth May of the same year does not conflict with the amendment to the constitution adopted in 1874, and is therefore constitutional.
    The levee bonds in the possession of the relator are valid obligations against the State, and should be funded.
    In so far as relates to the bonds alleged to have been issued under the statute approved [February 15,1866, the application of the relator to have them funded must be dismissed on account of a discrepancy in the proof of their issuance which can not be supplied.
    APPEAL from the Superior District Court, parish of Orleans. Uaw-Icins, J.

      A. P. Field, Attorney General, J. Q. A. Fellows, J. B. Cotton, for defendants and appellants. O. T. Bemiss, for relator and appellee.
   Morgan, J.

Section 1 of act No; 3, session acts of 1874, page 39, provides: “That for the purpose of consolidating and reducing the floating and bonded debt of tbe State, the Governor, Lieutenant Governor, Auditor, Treasurer, Secretary of State and Speaker of the House of Representatives are hereby authorized to cause to be prepared, and to issue bonds, to be known as consolidated bonds of the State of Louisiana, of the denominations of one hundred, five hundred and one thousand dollars, to the amount of fifteen millions of dollars, or so much thereof as may be necessary, all payable forty years from the first day of January, 1874, and all to be numbered consecutively, and made payable to bearer, and to bear interest at the rate of seven per cent, per annum, payable semi-annually in the city of New York and city of New Orleans' on the first day of July and January of each year, and coupons for such interest shall be annexed thereto; said interest and principal to be payable in lawful money of the United States.”

Section 3 provides : “ That the bonds authorized by section one shall be signed by the Governor, Auditor and Secretary of State, and the coupons shall be signed by the Auditor and Treasurer; and when so prepared said bonds shall be exchanged by the board of liquidation for all valid outstanding bonds of the State and all valid warrants drawn previous to the passage of this act by the respective Auditors of Public Accounts of the State on the Treasurer thereof, except warrants issued by the Auditor in payment of the constitutional officers of the State, at the rate of sixty cents in consolidated bonds for one dollar in outstanding bonds and all valid warrant’s; provided, that the holder of any bond or valid warrant rejected by a majority of said board may apply by petition to the proper court for relief, and if final judgment shall be rendered in his favor against said board, it shall be the duty of said board to fund his said claim in bonds at the rate provided by this act.”

The same Legislature, at the same session, proposed an amendment to the constitution of the State. The first number of this amendment is as follows :

“The issue of consolidated bonds authorized by the General Assembly of the State, at its regular session in the year 1874, is hereby declared to create a valid contract between the State and each and every holder of said bonds, which the State shall by no means and in no wise impair. The said bonds shall be a valid obligation of the State in favor of any holder thereof, and no court shall enjoin the payment of the principal or interest thereof, or the levy and collection of the tax therefor; to secure such levy, collection and payment, the judicial power shall be exercised when necessary. The tax required for the payment of the principal and interest of said bonds shall be assessed and collected each and every year until the bonds shall be paid, principal and interest, and the proceeds shall be paid by the Treasurer of the State to the holders of said bonds as the principal and interest of the same shall fall due, and no further legislation or appropriation shall be requisite for the said assessment and collection and for such payment from the treasury.”

This amendment was adopted, and it now forms part of the organic law of the State.

The Legislature, at an extra session held in 1875, act No. II, p. 110, enacted:

■ “ That the Bo'ard of Liquidation constituted by the second section of act No. 3, approved January 21, 1874, entitled an act to provide for funding obligations of the State by exchange for bonds, etc., is hereby prohibited from issuing any bonds in exchange for any outstanding bonds of the State or warrants drawn previous to the passage of said act by the respective Auditors of Public Accounts of the State on the treasury thereof, forming 'items of State indebtedness, the legality or validity of which may have been, or may hereafter be, questioned, until said bonds or warrants shall first, by final decree of the Supreme Court of the State of Louisiana, have been declared legal and valid obligations against the State of Louisiana, and that the same were issued in strict conformity to law, and not in violation of the constitution of this State or of the United States, and for a valid consideration; that any person assessed for State taxes is hereby authorized in his own name to institute suit or to intervene in any suit which may now or hereafter be instituted in a court of competent jurisdiction in the parisli of Orleans against said Board of Liquidation, to test the legality and validity of any issue of bonds of the State, or warrants drawn previous to the passage of said act No. 3 by the Auditor of Public Accounts on the State treasury, the legality and validity of which may have been or may hereafter be questioned, and to inquire into the consideration for which said bonds or warrants may have been issued, and in his own name to prosecute such suit or suits to a final termination; and until the legality and validity of each and every issue of bonds and warrants as aforesaid shall have been finally passed upon and determined by the Supreme Court of the State of Louisiana; and that in order to facilitate and bring to a speedy determination all matters in controversy, as provided for in this act, every suit hereby instituted shall have precedence in all courts over all other cases, and to be fixed by motion of either party; the day of trial to be named in the motion fixing such cases for trial to give way thereto ; that all costs incurred in any suits under this act, to the extent of one suit carried to a final issue, as to each separate issue of bonds or warrants, the legality, validity or consideration of which are questioned, if the court shall so determine, shall be borne by the State of Louisiana, and which costs, on approval of the court, shall be warranted for by the Auditor of Public Accounts on the State Treasurer, to be paid out of any funds in the treasury not otherwise appropriated; provided, that any holder or holders of bonds or warrants whose legality, validity or consideration is questioned in any suit or suits brought under the provisions of this act, may intervene in said suit or suits, and that the costs of such interventions shall abide the results of the suits in which such interventions shall be filed.”

Section two provides, “ That the following issue of b'onds and war- ■ rants, so far as the same may be now outstanding, are declared questioned and doubtful as to their legality and validity, and said board of liquidation are hereby prohibited from issuing bonds authorized by section one of act No. 3 of 1874, in exchange therefor until the legality, validity and consideration of the same shall have been tested under the provisions of this act, and a final decree rendered as to their legality, validity and consideration, to wit:

Here follows a list of the bonds whose validity is questioned, among which are to be found:

“ Bonds under act No. 115, approved March, 1867, for expenses of building levees, $4,000,000; bonds under act No. 32, approved February 25, 1870, for work done or to be done on the levees, $2,960,000.”

The relator asserts that he is the holder, for various parties, of 149 bonds, known as the levee bonds, for $1000 each, and 38 bonds of $1000 each, issued for “ paying certain debts” under the act of fifteenth February, 1866. He avers that it is made the duty of the Board of Liquidation to cause to be prepared and to issue bonds to be known as the consolidated bonds of the State of Louisiana, which bonds, when so made by the board and signed, shall be exchanged by the board for all valid outstanding bonds of the State, and all valid warrants. He proves, without objection, although he does not allege it, that he presented his bonds to the Board of Liquidators, who declined to exchange them for bonds as provided in the act of twenty-sixth January, 1874, upon the ground that they were prohibited from doing so under the act of seventeenth May, 1875. He prays fór a mandamus compelling the Board of Liquidators to fund his bonds. He avers that the act entitled ,£an act supplemental to the act approved January 26, 1874, is in conflict with act No. 3 of 1874, to which it is a supplement, and is “an attempt on the part of the Legislature to control the aetion of the Funding Board, and thereby deprives the holders of the bonds and other evidences of debt of their rights as defined under act No. 3 of 1874, and is, to that extent, a violation of the compact entered into between the people of the State and the bondholders, and is, to that extent, nneonstitutional, null and void.”

Critically considered, he rests his right to force the Board of Liquidation to fund his bonds upon the sole ground that the act of the Legislature,. No. 11, of the session of 1875, is unconstitutional.

No objection is made to the form of this-proceeding or to the insufficiency of the allegations in the petition. The issue is made up by the answer of the board as well as the State, which denies the validity and legality of the bonds. By the answer, the issue presented is—

First — -Whether the act No. 11, acts of 1875, conflicts with the amendment to the constitution adopted in 1874, which we have already quoted, and the act No. 3 of the acts of 1874, which this amendment, was intended to make irrepealable and unalterable by a subsequent Legislature.

The act of 1874, authorized the funding of the valid debt of the' State, and authorized the Board of Liquidation to issue bonds therefor. The validity of the obligations presented to the board was to be judged of, in the first instance, by the board, with the right of appeal to the courts by any claimant whose bonds the board refused to fund. The amendment to the constitution provided that all bonds issued by the board should be a valid obligation of the State in favor of the holder thereof, and prohibits any court from enjoining the payment of such bonds or the interest due thereon. All holders of bonds, therefore, issued by the board under this act-, are protected in their rights. The Legislature can pass no law affecting their validity, for this would be impairing a contract already consummated. But we do not understand that this prohibition extends beyond the bonds issued in conformity with the statute under consideration. The relator has made no contract with the State under this act. His bonds are not bonds issued under this statute. He simply claims the benefit of its provisions. He asks that bonds be given him in exchange for those which he now holds. By the first act the board was given the power to pass, primarily, upon the validity of his bonds. They certainly would not have been funded if the board considered them invalid. If the decision had been against him he would have appealed to the courts, if he had felt himself wronged. If the courts had come to the conclusion that-his debt was a valid one, the board would have been com- ■ polled to issue the bonds as provided for by the act. In the last resort, therefore, the decision of his rights depended upon the courts. It was only those obligations which the board considered unquestionable which it was authorized to issue bonds for.

Now the Legislature has seen proper to take away the absolute determination of the validity of the claims which were likely to be presented under this act from the Board of Liquidation, and give to any taxpayer the right to have the question of their validity passed upon by the courts.

It has also seen proper to designate certain outstanding bonds and other evidences of debt as suspicious, and to prohibit the board from funding them until their validity shall have been passed upon by the courts. There is nothing that we can see which is unconstitutional in an act of the Legislature which gives to the citizens of the State the right to see that no claim set up against it shall be paid until the validity thereof is ascertained.

There is no violation of any contract with the relator by the act in question, because at the time the act was passed no contract existed, under the act of 1874, between him and the State. The bonds he holds now are in the same condition that they were prior to the passage of either of the acts now under consideration.

We therefore deeide that the act No. 11 of the acts passed at the extra session of the Legislature of 1875, and approved May 17, 1875, does not conflict with the amendment to the constitution adopted in 1874, and is therefore constitutional.

Second — The next question is whether the bonds presented by the relators are valid obligations against the State.

The only bonds before us are certain bonds issued under act No. 32, approved February 25, 1870, for work done or to be done on the levees, and under act No. 115, approved March 26, 1867, for expenses of building levees. Also some bonds alleged to have issued under act of fifteenth February, 1866, for the purpose of paying certain debts.” And we desire to be distinctly understood that we are expressing no opinion upon the validity of any bonds except those before us and in the hands of the relator.

In so far as the levee bonds are concerned, the evidence satisfies us that those in the possession of the relator are valid obligations against the State, and that they should be funded.

As regards the bonds issued, as alleged, under act of fifteenth of February, 1866, we have only to say that there is no act of the Legislature of that date which authorizes the issue of any bonds. There is an act of the twelfth February, 1866, which authorizes an issue. Probably these are the bonds now sought to be funded, but the allegations in the petition are that they were issued under a certain act, and the bonds bear date of the act under which they are alleged to have been issued. There is a discrepancy here in the proof which we can not supply.

It is therefore ordered, adjudged and decreed that in so far as relates to the bonds alleged to have been issued under the statute, approved fifteenth February, 1866, that the judgment of the district court be avoided, annulled and reversed, and the application of the relators be dismissed as in case of nonsuit.

And it is further ordered, adjudged and decreed, that as regards the bonds in the possession of the relator, issued under act No. 115, approved March 26, 1867, for expenses of building levees, and under act No. 32, approved February 25, 1870, for work done or to be done on the levees, and described in his petition, and in his possession, that the judgment of the district court be affirmed.

Ltjdeling, C. J.,

dissenting. .The relator alleges that he is the holdér of a number of the bonds of the State of Louisiana, which were acquired before maturity, for value and in due course of trade; that accepting the terms of the act of January 24, 1874, he presented said bonds to the Board of Liquidation, created by said act, to be exchanged according to the terms of said act and the constitutional amendments, but that said board refused to act in the matter, on the ground that act No. 11 of the General Assembly of 1875, prohibited them from funding said bonds until after the Supreme Court of the State shall have decided that they were valid obligations of the State. The relator alleges that act No. 11 is unconstitutional and null, and he asks for a mandamus to compel said Board of Liquidation to act on their application without reference to said act No. 11 of 1875, exercising the discretion vested in them by act No. 3 of January 24, 1874.

The only question' presented for decision is the constitutionality of the act No. 11 of 1875, vel non f

If the act No. 3 of 1874 stood alone, it could not be seriously doubted that until its terms were accepted by the holders of the obligations of the State, the proposition therein made might be withdrawn by the State. But the fact is, act No. 3 of 1874 and the constitutional amendments form parts of one proposition, which was submitted to the holders of obligations of the State, without any limitation as to the time in which it could be accepted by them. This is apparent from a history of act No. 3 and the constitutional amendments. Act No. 3 was approved on the twenty-fourth of January, 1874. Act No. 4 of the same Legislature, proposed the constitutional amendments and ordered their submission to the voters for ratification.' It also was approved by the Governor on the twenty-fourth of January, 1874. The objects of act No. 3 are clearly indicated by its title; it is “an act to provide for funding obligations of the State by exchange for bonds; to provide for principal and interest of said bonds; to establish a board of liquidation; to authorize certain judicial proceedings against it; to define and punish violations therefor; to levy a continuing tax and provide a continuing appropriation for said bonds; to make a contract between the State and holders of said bonds; to prohibit injunctions in certain cases; to limit the indebtedness of the State, and to limit State taxes; to annul certain grants of State aid; to prohibit the modification, novation or extension of any contract heretofore made for State aid; to provide for the receipt of certain warrants for certain taxes, and to repeal all conflicting laws.”

The amendments to the constitution are as follows: “ The issue of consolidated bonds, authorized by the General Assembly of the State, at its regular session in the year 1874, is hereby declared to create a valid contract between the State and each and every holder of said bonds, which the State shall by no means and in no wise impair. The said .bonds shall be a valid obligation of the State in favor of any holder thereof, and no court shall enjoin the payment of the principal and interest thereof, or the levy and collection of the tax therefor ; to secure such levy, collection and payment, the judicial power shall be exercised when necessary. The tax required for the payment of the principal and interest of said bonds shall be assessed and collected each and every year, until the bonds shall be paid, principal and interest, and the proceeds shall be paid by the Treasurer of the State to the holders of said bonds as the principal and interest of the same shall fall due, and no further legislation or appropriation shall be requisite for the said assessment and collection and for such payment from the treasury.

No. 2. “Whenever the debt of the State shali have been reduced below twenty-five million dollars, the constitutional limit shall remain at the lowest point reached, beyond which the public debt shall not thereafter be increased ; and this rule continue in operation until the debt be reduced to fifteen million dollars, beyond which it shall not be increased. Nor shall taxation for all State purposes, excepting the support of public schools, ever exceed twelve and a half mills on the dollar of the assessed valuation of the real and personal property in the State, except in case of war or invasion.”

Thus it appears that on the same day the General Assembly passed act No. 3 and act No. 4, that on the twenty-fourth of January the Governor approved both bills. The act No. 3 levies an annual and continuing tax to pay the interest and principal of the consolidated bonds; and the amendment declares that “the tax required for the payment of the principal and interest of said bonds shall be paid,” etc., “and no further legislation or appropriation shall be requisite for the said assessment and collection and for such payment from the treasury.” This clearly refers to the legislation contained in act No. 3, for no assessment or appropriation is made in the amendment.

Again, section 6 of the act No. 3 requires the board to publish a notice of the adoption of this act, in one or more journals of New Orleans, New York, London, Paris and Amsterdam. In November, 1874, at a general election in the State, the constitutional amendments were adopted, with a full knowledge of the legislation contained in act No. 3 and said amendments. These amendments were intended to guarantee the performance of the obligations of the State, stipulated in act No. 3.

The adoption of the amendments was tantamount to saying that there was no limitation of time within which the creditors of the State should accept her proposition. The State, alleging her inability to pay the whole of her indebtedness, but protesting her willingness to pay her just debts to the full extent of her ability, offered a compromise to said creditors; and, as a guarantee against repudiation, made such amendments to her constitution, with the approval of the people, as was deemed sufficient to insure the prompt and punctual'payment of the novated debts in defiance of the will or caprice of any and all future legislatures.

The plain intendment; and spirit of the constitutional amendments are the enforcement of the obligations stipulated in the act No. 3. Section II of said act declares, “that each provision of this act shall be, and is hereby declared to be, a contract between the State of Louisiana and each and every holder of the bonds issued under this act.”

Millions of the obligations of the State had been novated under this law, before the passage of act No. 11. This last act changed several provisions of act No. 3. For this, if for no other reason, the act is unconstitutional. If one part of the act can be altered’, any other provision thereof may be changed, and the outstanding obligations might be novated on terms more favorable to the creditors than those proposed in act No. 3, which would be a breach of good faith to those who had funded their debts, on the supposition that all the outstanding obligations of the State were to be funded on the same terms. Or section 7 of act No. 3 might be repealed, which is the only law levying a tax and making an appropriation for the payment of the interest and principal of the consolidated bonds, when due, and thus practically defeat the object of the constitutional amendments, to wit, the prevention of repudiation.

I conclude that act No. 3 is irrepealable, and that act No. II, approved May, 1875, is unconstitutional, and that the mandamus should be made peremptory. I therefore dissent from the opinion of the court in this case.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 560.
    Succession of David Hasley-Opposition of Heirs to Provisional and Final Account.
    Xu tills instance, if the accountant saw fit to file an amendment to her original aocount, it ■was but just tbat tbe opponents should have tbe right to oppose it, and for tbat purpose some delay was absolutely necessary. Tbe judge a quo did not err in overruling the objection to tbe granting of tbe delay; nor was tbe objection to tbe permission to amend, if it bo so regarded, better iounded. Ho injury could result to any one, and it was tbe interest of all parties tbat an end be put to this litigation.
    Tbe fee allowed in tbe account, which was tbe object of tbe controversy, for defending tbe suit to reduce tbe legacy to tbe disposable portion, is not a proper charge against tbe estate. Tbe testator having left forced hevrs, tbe executrix might bave learned from any member of tbe bar tbat tbe bequest of tbe usufruct of tbe whole of bis property was reducible, and there was no necessity for defending such a suit, at least by tbe executrix. If tbe legatee chose to defend, it was to fee at bis own costs.
    Tbe opposition to tbe credit claimed for commissions due to tbe executrix should be maintained, as she is a legatee under tbe will.
    Newman having died without forced heirs, giving by bis will to bis widow, tbe present Mrs. Hasley, tbe usufruct of bis estate during her life, and tbe property itself to some of bis heirs, and Hasley, after bis marriage with widow Newman, having bought tbe rights and interests of all tbe heirs and legatees, these rights entered into the community then existing between Hasley and bis wife, and at bis death, one-half thereof belonged in full ownership to her, and the other half belonged to his heirs, subject to her usufruct, created by the will of Newman, her first husband. The naked property of this half interest in and to tbe property of Newman belongs to tbe heirs of Hasley, and she should be charged with its inventoried value.
    As tbe community owned only tbe naked property to one-half of the estate, consequently the community owed Mrs. Newman, in addition to the price of her half of the property, tbe value, whatever tbat may be, of tbe usufruct of the property sold. Ho confusion ever toolc place as to tbe usufruct of Mrs. Newman, as she never purchased tbe naked property. The community and she were distinct and separate persons.
    In tbe absence of other proof as to tbe value of tbe usulruct of such property, this court will consider tbe interest allowed by law for moneys due, as tbe value of such usufruct, and this tbe accountant is entitled to in addition to tbe half of tbe price of said sales.
    Charges for tbe value of timber standing on tbe separate lands of tbe wife at tbe time of her marriage, and after tbat cut and sold, were properly allowed. The timber, before being cut, belonged to tbe wife, and its value received by tbe husband is a proper charge against the community.
    Tbe judgment of tbe court a qua giving tbe executrix five per cent, per annum interest on all tbe items allowed to her for paraphernal property disposed of by tbe husband, is wrong. Interest should be allowed only from tbe dissolution of the community, as tbe interests before tbat period entered into tbe community.
    There being no debts due by tbe estate, tbat portion of tbe judgment of tbe court a qua which prolongs tbe administration of tbe executrix, to collect tbe notes and judgments due io tbe estate, is wrong. Tbe administration should be closed, and tlie property should be turned over to those entitled to it as soon as possible.
    APPEAL from the Parish Court, parish of Ouachita. JBalcer, J. JR.

      W. & JR. Mehardson, for executrix. Gobi & Granby, for opponeuts and appellants.
   Ludeling, C. J.

David Hasley died in January, 1873. He left a widow, a son and two grand children by a former marriage. His estate exceeded $60,000, and it was nearly all acquired during his marriage with the second wife. He left a will, by which he gave the usufruct of all his property to his widow, during her life, and he appointed her Ms executrix. The will was probated, and Mrs. Hasley was confirmed testamentary executrix.

The heirs of Hasley then sued to have the will annulled, and by a judgment of this court the will was held to be valid. The heirs then sued to reduce the legacy to the disposable portion, and for the rendition of an account, and for a partition. There was judgment reducing the disposition in the will, and ordering an account. A provisional account was filed, which was opposed by the heirs. The opposition was maintained in part, and as amended, the account was homologated 5 a final account and a partition were ordered. Appeals were taken from both of said judgments, but no transcript of appeal has been filed in this court in either case, although the return day has long since passed.

The executrix then filed what she called her final account. In this account the executrix stated that she had claims against the estate of David Hasley for her paraphernal property, received and disposed of by Hasley during their marriage, which she proposed to present at a future time. The heirs filed oppositions to this account, and specially denied that she had any claims against .Hasley’s succession for paraphernal rights.

The case was then fixed for trial for the eleventh of May. On the tenth of May, the executrix filed what she termed an amended account, in which she set forth her claim for paraphernal property disposed of by her deceased husband, which had been alluded to in her original account. The trial of the oppositions commenced on the eleventh May, and on the thirteenth of May the heirs filed an opposition to Mrs. Hasley’s claim filed on the tenth of May. Objections were made to the filing of this opposition, on the grounds that it came too late, as the trial had been progressing two days, and because the re-conventional demand for the value of the ameliorations put upon her paraphernal property is not stated with sufficient particularity and certainty. The objections were overruled and a bill of exceptions was taken.

We think the judge a quo ruled correctly. If the accountant saw fit to file an amendment to her original account, it was but just that the opponents should have the right to oppose it, and for that purpose some delay was absolutely necessary, and within three days they filed their objections to it. The other objection is equally untenable. It was to the interest of all parties that an end be put to this litigation, and no injury could result to any one by permitting the amended opposition, if it be so regarded.

On the trial of the opposition the executrix pleaded res judicata to all items opposed, which figured on the provisional account. We think the plea should be maintained. As already stated, the appeal taken from the judgment homologating the account was-never filed in this court, and that judgment is now conclusive. We have, therefore, confined our examination to the. objections urged to the judgment appealed from, which relate to matters not embraced in the provisional account; nor will we notice the criticisms of counsel, either on the form or want of completeness of the accounts.

The objections that the executrix has been guilty of dereliction of duty in not filing her final account, and in not collecting the assets of the estate, are not well founded. It appears from this record that almost from the opening of the succession, the executrix has been involved in litigations, which the heirs have instituted, and which necessarily delayed the close of her administration. As to the objection to her claim for credits for the notes returned, because she has novated them, it may be observed that she is the owner of one undivided half of all the assets of the succession, as partner in community, and she had, under the will, the usufruct of the other half during her life.y The changes that were made in the notes were manifestly for the interest of all interested in the succession, as, for instance, the interest on the notes were capitalized and new notes taken, with additional security, and others were made more secure by requiring a part thereof to be paid for an extension of time, and under circumstances which would have induced a prudent person to act in the same manner. Prom the evidence it appears that no injury to the heirs has resulted or is likely to result from the the acts of the executrix aforesaid; therefore they have no just cause to complain of said acts.

The objection to the sales of lands in section 43 to Hester, the Hasley Baptist Church, and Lemle, is inconsiderate, for the amount for which she accounts largely exceeds the inventoried value of said lands; nor can the sales be decreed to be null in this suit, as the vendees are not before us. The credit for account of T. C. Sfendifer & Co. is embraced in the provisional account homologated and will not be further noticed.

The objection’to item of $239 10 for marble slab over and iron railing around the grave of their ancestor, comes with a bad grace from ■ the heirs, who are enriched by his estate, even though the railing surrounds the grave of executrix’s first husband, whose property also enabled their ancestor to make the gains which they inherit. The deceased was entitled to decent burial; and the amount expended for funeral expenses, including the above, was very moderate, considering the condition of the estate.

The next opposition is to the fees of attorneys. The amounts allowed by the judge a quo seem to be conceded to be correct, except the following: $750, for defending the suit of J. J. Hasley et al v. P. B. Hasley, executrix; $500, for defending suit to reduce the legacy and to account; $1446 94, commissions on $14,469 47, and $500 for this account.

The fee of $750 for defending the suit in which the validity of the will was attacked, is properly chargeable to the estate, and the amount is reasonable.

The fee for'defending the suit to reduce the legacy to the disposable portion and for an account, is not a proper charge against the estate. The testator having left forced heirs, the executrix might have learned from any member of the bar that the bequest of the usufruct of the whole of his property was reducible, and there was no necessity for defending such a suit, at least, by the executrix. If the legatee chose to defend it, she should pay a reasonable fee. This item was, therefore, improperly allowed as a credit.

The item of $1446 94 was opposed on the ground that no “professional services” were rendered in said collections, and that none were necessary, and that the charge is excessive for the services, if rendered. There is no proof in the record that such services were rendered, and the credit must be rejected.

The last item of $500, for this account, we think should be allowed. The executrix was bound to render a final account, and for the services of an attorney for that purpose, .a reasonable fee should be allowed. As already said, we do not consider that the executrix has been guilty of dereliction of duty, and the strenuous, and in many instances, unjust oppositions to the account, have increased the labors and consequently the fees of the attorney. The opposition to the credit claimed for commission due to the executrix should be maintained, and the credit allowed for $1378 59 should be rejected, as she is a legatee under the will. C. C. 1686. The credit claimed by the executrix for the interest of the Newman heirs, brought by Hasley, inventoried at $5225, is opposed. We think this opposition should be sustained.

L. Newman died in 1851, without forced heirs. By his will he gave his widow, the present Mrs. Hasley, the usufruct of his estate during her life, and to his brothers, sisters, and the children of deceased brothers and sisters, he gave his property, except some special legacies. After the marriage of David Hasley with the widow of L. Newman, Hasley bought the right or interest of all the heirs and legatees aforesaid, for the aggregate sum of $5225. These rights entered into the community then existing between D. Hasley and his wife, and at his death one-half thereof belonged to her in full ownership, and the other half belonged to his heirs, subject to her usufruct, created by the will of Newman. The nalced property of this half interest in and to the property of L. Newman belongs to the heirs of Hasley, and she should be charged with its inventoried value, that is, $2612 50.

In relation to the sales made of property belonging to the Newman estate, the opponents contend that inasmuch as Mrs. Hasley owned the on& undivided half of the property, and the community owned the other half, that therefore, the community is chargeable only with the half of the price received for the property sold. That would be true, if the commwnity did own the undivided half of the property in full ownership. But we have seen that the community owned only the nalced properly to one-half of the estate. Consequently. the community owed her, in addition to the price of her half of the property, the value, whatever that may be, of the usufruct of the property sold. No confusion ever took place as to the usufruct of Mrs. Newman, as she never purchased the naked property; the community and she were distinct and separate persons. In the absence of other proof of the value of the usufruct of such property, we will consider the interest allowed by law for moneys due as the value of such usufruct; and this the accountant is entitled to in addition to the half of the price of said sales, which belonged to her. And she is further entitled to keep the $2612 50 in order to enjoy her usufruct thereon till her death, on giving security according to law. The items of $400 and $50, received from J.' R. Williams, $400 from Jack Bass, $1000 from E. Gross, etc., allowed by the judge a quo, were properly allowed under the evidence» The items for sales of logs to Bry & Essicks, and of cord wood sold to steamboats, etc., were also properly allowed. These charges are for the value of the timber standing on the separate lands of the wife at the time of her marriage, and afterwards cut and sold. The timber before being cut, belonged to the wife, and its value received by the husband, is a proper charge against the community; the logs and cord wood belonged to the community. We think the evidence authorized the allowance of the item of $4600, for money received by Hasley and loaned at interest, as a part of the estate of L. Newman.

The judgment of the court a qua gave the executrix five per cent, per annum interest on all the items allowed to her for paraphernal property disposed of by the husband. This is wrong. Interest should be allowed only from the dissolution of the community, as the interests before that period entered into the community. By law now, all debts bear five per cent, interest from their maturity, unless otherwise stipulated. These remarks apply to the separate property of the wife, except to the price of her usufruct on property of the Newman estate, sold as aforesaid. The interest on the price of the property subject to the usufruct, was her separate property, and did not form part of the community, because it was not acquired during the community, the paid interest being the value or price of said usufruct; and the community owes said amounts received by him annually.

Having disposed of the objections made by the heirs to the judgment of the parish court on the claims of the widow, we will now proceed to dispose of the claims of the heirs for the ameliorations put upon the separate property of the wife. The court a qua allowed $3963 50 as the value of the improvements placed on the separate estate of the wife, and directed that one-half that sum, less her interest as usufructuary of one-fifth, to wit: $1585 be deducted from the sum allowed her for paraphernal property disposed of by the husband. The appellee has asked, to have the judgment amended by rejecting the demand of the heirs, and by allowing the accountant the item of $271 14, collected from Z. Johnson. This item appears to have been omitted in the opinion specifying the items of the accounts allowed, but the sum seems to have been added in the aggregate amount for which judgment was rendered. An examination of. the testimony of the witnesses, satisfies us that the-sum allowed by the judge a quo for the enhanced value of the property of the wife by the improvements placed thereon is too large.

J. P. Crosley says, “I don’t know but what I would rather have the land as Hasley took it than in the condition it was at the time of his death.” D. T. Head and Stamper, testify to the same effect.

There was a mill and gin placed on the lands, which are valued at from $1000 to $1500.

Crosley further testified as follows: “I would consider the Newman place, if at the death of Mr. Hasley, in 1873, it was in the same condition it was at the time of marriage in 1853, to have been worth about $5000. My opinion is that the Newman place, at the death of Mr. Hasley, in 1853, with all improvements thereon, inclusive of the mill property, was worth about $6000 or $6500.”

It is true-. a witness for the opponents says: I think, with the improvements put on it, the land was worth twice as much in 1873 as in 1853.” But he does not state whether any of this increased value was the result of time or not; and he adds: “ I would not know how to guess at the value of the land in 1873, as I am not much of a judge of the value of the lands; never owned much.” And again he testified that “ If the land was in the same condition in 1873 that it was in 1853, I don’t think I would make much difference in the valuation of it.” In another place he says : “ It is guess work with me.”

We fix the value of the improvements at $1500. This amount therefore is due by the widow to the community.

That portion of the judgment of the court a qua which prolongs the administration of the executrix to collect the notes and judgments due to the estate is wrong. There are no debts due by the estate; the administration should be closed and the property should be turned over to those entitled to it as soon as possible.

It is therefore ordered and adjudged that the judgment of the parish court be amended and corrected in the particulars stated in the foregoing' opinion, and that as thus amended it be affirmed. It is further ordered that this ease be remanded to the lower court to the end that a final partition of the property of the estate of David Hasley, as fixed by the views and principles announced in the foregoing opinion, be made between the heirs and the surviving widow of David Hasley according to law. It is further ordered that the succession pay costs ,of this appeal.


author: Wtly, J.

text:
    No. 583.
    John Phelps & Co. v. Horace Boughton.
    A garnishee can not waive service of the proceedings required hy law to make a seizure of effects or property in his hands. In this case, as the garnishee was not legally served, nothing was attached in his hands.
    The judge a quo erred in allowing damages on the dissolution of the attachment in this instanoe. It is not pretended that the plaintiffs were not entitled to sue out the attachment against their debtor, a non-resident. There has been no abuse of that harsh remedy here, but merely a failure to get the benefit of the writ, because of the error committed in executing the process.
    APPEAL from the Tenth Judicial District Court, parish of Caddo,» Looney, J.

      Land & Taylor, for plaintiffs and appellants. Duncan & Moncure, for defendant and appellee.
   Wtly, J.

Plaintiffs, claiming to be creditors of the defendant, a non-resident, for $1224 90, brought this suit against him for said amount, and they sued out an attachment by garnishment process with a view to seize the judgment of the defendant u.'Ross Wilkinson for $942 61, rendered in the district court, parish of Caddo, on twenty-fourth November, 1874.

A curator ad hoe was appointed for the defendant and the attachment notices duly posted. The interrogatories and citation were not served on the garnishees Wheaton, the clerk of the court, and Wilkinson, the debtor, in the judgment sought to be attached. The garnishees waived service of petition and citation and answered the interrogatories favorable to plaintiffs.

The court dissolved the attachment with fifty dollars damages, and plaintiffs appeal.

In Schindler v. Smith, 18 An; 476, this court held that a garnishee can not waive service of the proceedings required by law to make a seizure of effects or property in his hands; that he is a mere stakeholder without pecuniary interest, not even liable for the cost; and as the garnishee .was not legally served nothing was attached in his hands. We adhere to that opinion, and conclude that the judge did not err in setting- aside the attachment. C. P. 246‘. He did err, however, in allowing damages.

It is not pretended that the plaintiffs were not entitled to sue out the attachment against their debtor, a non-resident; but the objection is that no valid seizure was made of his property, the judgment he holds against Wilkinson, the garnishee. If plaintiffs lose their attachment because they failed to seize thereunder defendant’s property, we fail to perceive the loss defendant has sustained by reason of this non-seizure. If the attachment were dissolved because the plaintiffs were not entitled to it, it would be right to inflict damages for the abuse of a harsh remedy. Here, however, has been no abuse, but merely a failure to get the benefit of an attachment because of the error committed in executing the process. As the failure to make a seizure under the attachment will not preclude plaintiffs from subsequently obtaining the benefit of that conservatory remedy, we see no reason to disturb that part of the decree, reserving this right to plaintiffs.

It is therefore ordered that the judgment herein be amended by striking out that part allowing defendant damages, and as amended it is affirmed, appellee paying costs of appeal. C. P. 246.


author: Wxlt, J.

text:
    No. 598.
    Succession of Callie N. Newman. Opposition of G. W. Newman.
    The plea to the jurisdiction is without weight. The demand of the opponent under article 2382 of the Revised Code for a marital portion is not the action of a creditor against a succession. It is the portion which the law allows in the settlement of a succession to the surviving spouse in necessitous circumstances where the deceased died rich. It is a right which must he asserted in the court charged with the settlement of the succession.
    APPEAL from the Parish Court, parish of Bossier. Fort, J. J. J). Watkins and T. M. for and

      Watkins and T. M. Fort, for opponent and appellee. J. A. Snider, Nutt & Leonard, for administrator and appellant.
   Wxlt, J.

In the settlement of this succession the present controversy arises from the demand of G-. W. Newman for the marital fourth of the succession of his deceased wife, Callie N. Newman, who died without leaving ascendants or descendants and leaving a succession of more than twenty-four thousand dollars after payment of debts.

The amount stated is now in the hands of the administrator, and the debts are paid. Besides this, there are a few outstanding claims belonging to the succession. The court allowed the opponent, G. W. Newman, one-fourth of the funds on hand, and J. L. C. Graham a collateral heir of the deceased, and her administrator, has appealed.

The objection of prematurity of the action is unfounded. The succession has been under administration for nine years, and is sufficiently liquidated for a settlement among the heirs. The plea to the jurisdiction is also without weight. The demand of the opponent G. W. Newman, under article 2382 of the Revised Code ior a marital portion, is not the action of a creditor against a succession. It is the portion which the law allows in the settlement of a succession to the surviving spouse in necessitous circumstances where the deceased died rich. It is a right which must be asserted in the court charged with the settlement of the succession. All successions shall be opened and settled in the parish courts. Constitution, article 87.

It is shown that the husband has three horses and a buggy. The succession of his wife exceeds twenty-four thousand dollars in the hands of the administrator. He is entitled to the marital fourth. Succession of Fortier, 3 An. 104.

The court did not err in allowing the opponent G. W. Newman one-fourth of the funds of the succession in the hands of the administrator.

Judgment affirmed.


author: Taliaferro, J.

text:
    No. 529.
    Nelson J. Scott, Husband v. Georgia Scott, Wife.
    UsTo grave and insuperable cause exists justifying a decree of divorce in this case. It was not the intention of the lawmaker that courts should "be governed in their decisions of cases of this sort by the declarations and wishes of the parties themselves, acting.under excitement and dissatisfaction. Their allegations of grievances insupportable, must be made good by proof, to authorize the action of the judge. It is not every-family feud declared by husband or wife to be insupportable, that will authorize a decree. It is in the great interests of society that the conjugal relation should not be dissolved except upon weighty and well established reasons.
    APPEAL from the Eleventh Judicial District Court, parish of Claiborne.

      Trimble, J. J. 8. Young, for plaintiff and appellant. L. JB. Watkins, for defendant and appellee.
   Taliaferro, J.

The plaintiff prays to be divorced from his wife on the ground, as he alleges, that further co-habitation with her is insupportable; that her conduct is repugnant to the marriage covenant; that her conduct toward him and his children by a former marriage renders it insupportable to live with her, and that towards himself personally, her conduct is outrageous.

Tiie wife, in answer to this petition, after denying all its allegations, sets up the charge against her husband of habitual intoxication on his part that renders it insupportable on her part to live with him; that he treats her in an exceedingly ill and crabbed manner, cursing and abusing- her, and on one occasion that he slapped, beat and choked her. She reconvenes, praying a decree of divorce from her husband, a division of the community property between, them, for alimony, etc.

There is a child of about, three years old, issue of the marriage of these parties. Each claims to have the custody of the child decreed to them.

The wife had judgment divorcing her from her husband and decreeing to her the custody and tutorship of the child, with reservation to the wife to recover her share of the community of acquets and gains.

The plaintiff appealed.

The disposition we shall make of this case renders it unnecessary to examine the bills of exceptions found in the transcript.

We have examined the testimony in this record with attention, and after due consideration we do not give to it the character and purport which seems to oe attached to it by the contending parties. It is doubtless tinged to a considerable extent by the feelings and prejudices of relatives and friends, who have testified on either side. This is natural, and found in cases of this kind to be common. It is shown that the husband is addicted to the intemperate use of ardent spirits, and that when under its baneful influence he is passionate and spiteful; that when in a good humor he treated his wife kindly. Difficulties seem to have arisen between them frequently. The wife on one or two occasions left the common domicile and again returned. The witnesses speak of one or two reconciliations between them. This is denied by the counsel of the defendant, but we think the testimony does establish a reconciliation that took place in 1873. The wife, it is shown, was in the habit of using opium or morphine in considerable quantities; but we do not find that the evidence establishes that the use of these sedatives had any bad effects upon her of any sort. A lady, who testified in regard to the defendant’s use of narcotics, says she knew her ten or eleven years, and knew nothing against her; “always considered her a very clever lady and her bearing good.” In this instance is presented the common case of difficulties arising between a stepmother and children of the husband by a former wife. Such feuds are often sharp, and involve ail the household in discord and wrangling. Several grown daughters of the plaintiff, it is shown, reside with him. Between them and his wife amicable relations, it seems, have not always been preserved. Often, no doubt, the conflicting feelings of the father and the husband may have been taxed to an extent beyond the power of his philosophy to maintain equanimity of temper. But surely these petulances and ebullitions that are constantly occurring in families are not troubles ot so grievous a character that they are to be remedied only by divorce. The difficulties unhajrpily existing between tire litigants, we infer from the evidence, have arisen mainly from this source. No grave and insuperable cause, in our judgment, exists justifying a decree of divorce. It was not the intention of the lawmaker that courts should be governed in their decisions of cases of this sort by the declarations and wishes of the parties themselves, acting under excitement and dissatisfaction. Their allegations of grievances insupportable must be made good by proof, to authorize the action of the judge. Trials and troubles from the infirmities of our nature constantly assail us, and it is our duty, as best we may, to bear up under them and overcome them if in our power. Something must be expected from the parties themselves, to overcome their domestic difficulties. It is not every family feud declared by husband or wife to be insupportable that will authorize a divorce. It is in the great interests of society that the conjugal relation should not bo dissolved except upon weighty and well established reasons. The record before us we do not think presents such a reason.

It is therefore ordered that the judgment of the district court be annulled and reversed. It is further ordered that this suit be dismissed at plaintiff’s costs.


text:
    No. 584.
    Hall & Turner, Agents, etc. v. Timothy Mooring.
    This is a petitory action against the defendant for certain lands. The only question is that of prescription. It is well settled that, to become the "basis of prescription, the title must he apparently good, and of a hind calculated to induce a belief in the purchaser that it is perfect. A title defective in form can not be a basis of prescription. By this the law means a title on the face of which some defect appears, and not one that may prove defective by circumstances, or evidence de hors the instrument. of the thing
    prove A possessor in good faith is one who has just reason to believe himself master of the thing he possesses, although he may not he in fact. In this instance, it is a question of fact, and there is nothing in the record to show that the defendant had any reason to doubt that his title was good, until the institution of this suit. Hence prescription lies in his favor.
    APPEAL from tbe Tentli Judicial District Court, parish of Caddo. ad in lieu of Looney, district judge, recused.

      Land & Taylor, for plaintiffs and appellants. Egan & Wise, for defendant and appellee.
   Ludeling, C. J.

This is a petitory action to recover lands situated in the. parish of Caddo. The only defense we will notice is the prescription of ten years.

It appears from the record that the defendant has a patent from the United States for a part of the lands in controversy., dated in April,. 1843, and that he holds a title, perfect in form, to all the lands in question from N. E. Wright, agent of the heirs of Daniel Mosely, of Texas, dated twenty-eighth of January, 1859. This suit was instituted on the twenty-first of October, 18C9, and the petition alleges that defendant took possession of the lands on the twenty-eighth of January, 1859. It is manifest that if the title from N. E. Wright, agent, is sufficient to enable one, to prescribe under it, the only other inquiry will be the good or bad faith of the defendant.

Article 503 of the Civil Code declares “He is a bona fide.possessor, who possesses as owner by virtue of an act sufficient in terms to transfer property, the defects of which he was ignorabt of,”

The act of sale was sufficient ip terms to transfer the property, pro-vided the agent who executed the deed had authority. The evidence" on this point is that Thomas E. Mosely and Augustus Mosely, two of the heirs ot Daniel Mosely, were appointed the agents of all the other heirs of Daniel Mosely, with extensive powers to settle up the succession in Texas and Louisiana; that Thomas E. Mosely for himself and for Augustus Mosely, acting as the agents of all the heirs of Daniel Mosely, of Texas, fully empowered N. E. Wright by public act to sell all the lands belonging to said heirs, situated in Louisiana, and that under said power of attorney said Wright did sell the lands in question and receive the price thereof. It is contended, however, that Thomas E. Mosely exceeded his powers in executing the power of attorney to Wright; and that therefore the defendant can not prescribe under that title. The fact stated, that Thomas E. Mosely exceeded his powers, is perhaps true. But the inference deduced from the facts, is illogical. The want of authority in Wright to sell the lands is the only defect in defendant’s title. If that defect did not exist, his title would be perfect, without the help of prescription. The defendant’s title is apparently perfect; so is the mandate of Wright. The defect complained of is de hors both acts; and was only made manifest on the trial of this case. “ It is well settled that to become the basis of prescription, the title must be apparently good,.- and of a kind calculated to induce a belief .in the possessor that it is perfect. A title defective in form can not be a basis for prescription. By this, ffi? law means a title on the face of which some defect appears, and not one that may be found defective by circumstances or evidence de hors the instrument.”- 3 E. 220.

Did the defendant possess in good faith ? A possessor in good faith is one who has just reason to believe himself the master of the thing he possesses, although he may not be in fact.” C. C. 2451; 503. It is a question of fact, and there is nothing in this record to show that the defendant had any reason to doubt that his title was good, until the institution of this suit. In Dufour v. Canfranc, this court said : “Good faith is ordinarily tested by inquiring whether the defect in the title proceeds from a vice in form or a want of right in the person who conveyed; in other words, if it is an error in fact, or an error in law, under which the purchaser holds the object claimed.' Pothier tells us that a just title is that which is of a nature to transfer the property; so that when it is not transferred, it is a defect of right in the person who makes it, and not a defect in the title, in consequence of which the tradition is made.” 11 Martin (975) 714.

It is contended that as Wright did net act in his own name, but as agent for others, the defendants can not acquire by prescription under his title; that it is either a legal title or an absolute nullity, under which no rights can' be acquired; and that he is not a possessor in good faith, because a possessor in good faith is one who buys a thing which he supposes to belong to the person selling it to him, but which in fact belongs to another.” This error results from confounding an illustration of the rule with the rule itself. C. C. 3451. And we can not see the legal distinction attempted to be made. There can be no greater obligation in the vendee to examine the verity of the state.ments in the written mandate of Wright than to inquire into the truth of the assertion of the seller that he is the owner. In both it would be an error of fact, “ which the law would not consider of such a nature as to prevent the party from pleading prescription. The rule is that when the opinion of the possessor, who holds an object under a title of sale, has a just ground, though in fact there is no sale, the opinion is equal to title.” 11 Martin, 714.

It is therefore ordered that the judgment of the lower court be affirmed with costs of appeal.


author: •Taliaferro, J.

text:
    521.
    The State of Louisiana v. Charles Green alias Henry Green.
    There is no law of this State, nor any authority under our jurisprudence requiring a more definite description in an indictment for stealing money than the word itself imports.
    APPEAL from the Fourteenth Judicial District Court, parish of •Ouachita. Say, J.

      O. T. Bunn, district attorney, for plaintiff and appellee. Sobert James Caldwell, for defendant and appellant.
   •Taliaferro, J.

The defendant was indicted for stealing and carrying away seventy-five dollars of the goods, chattel's and money of one Henry Matthew.” He was tried on this charge, convicted and sentenced to two years imprisonment at hard labor in the penitentiary. From this judgment, inflicting this punishment, the defendant has appealed.

It appears from a bill of exceptions in the record that objection was made and overruled by the judge to the admission of the answer of a witness to a question by the district attorney, which answer was lCa roll of bills tied up in a string.” The objection was that no particular kind of money was charged in the indictment; that the State could not prove what kind or species of money was taken unless it was charged in the indictment, and under the general allegation of money no particular kind of money could be proved. On these grounds a motion was made in arrest of judgment.

We are not referred to any law of this State or any authority under our jurisprudence requiring a more definite description in an indictment for stealing money than the word itself imports, and we are aware of none. We think the defense without weight.

It is therefore ordered that the judgment appealed from be affirmed.

Rehearing refused.


author: Wyly, J.

text:
    No. 548.
    E. D. Duckworth v. W. H. Vaughan, Public Administrator, et al.
    The plea, in this instance, tliat the lands were not surveyed and sold in lots as required by tbe constitution, can not be maintained. It is true that a survey of the lands was not made, but they were divided up into lots as required by law, and the lots were appraised separately; the lots were described according to the survey made by the government, and the sale was made in lots. This was sufficient.
    The fact that the lands were sold under the last inventory ordered by the court instead ol the first, is no ground for annulling the sale.
    The order of the court having jurisdiction of the succession, which ordered the sale during the provisional administration of the public administrator, has not been appealed from, and is not an absolute nullity. Purchasers in good faith need not look beyond the order of sale made by a court having jurisdiction of the succession. They are not affected by antecedent irregularities. The jurisprudence on this point is settled.
    The note sued upon 'is not prescribed. The name of the former administrator indorsed on it on the twenty-eighth oí December, 1868, and the placing of this claim on the tableau, arrested the current of prescription, and it has not since acquired.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse. J. Morehouse. Bay, J.

      Todd & Brigham, for plaintiff and appellant. Newton ds Mall, for defendants and appellees.
   Wyly, J.

Plaintiff, .a creditor of the succession of E. P. Overby sues the defendant, its legal representative, on a note of deceased for $1050; he also sues to annul the sale of the lands described in the petition, wliicli were sold pursuant to an order of the parisli court having jurisdiction of said succession, on twenty-eighth January, 1871. The grounds of nullity are :

First — That at the time the order of sale was granted and at the time of the sale, the defendant, the public administrator, only held provisional administration of the succession of E. P. Overby, pending a contest for the administration between Gr. W. Kimbrough and Mrs. M. E. Overby; that while thus holding, a sale ordered to be made by the parish court was an absolute nullity.

Second — That the inventory under which the lands were sold was not the first inventory, but one made by order of the court a few days before the sale.

Third — That the lands were not surveyed and sold in lots as required by the constitution.

It is true a survey of the lands was not made, but they were divided up into lots as required bylaw, and the lots were appraised separately; the lots were described according to the survey made by the government, and the sale was made in lots. This was sufficient. The fact that the lands were sold under the last inventory made by order of the court, is no ground for annulling the sale.

The public administrator was administering the succession, and the order of the court having jurisdiction of the succession directing the sale, has not been appealed from, and it was not an absolute nullity. Purchasers in good faith need not look beyond the order of sale made by a court having jurisdiction of the succession. They are not affected by antecedent irregularities. The jurisprudence on this point is settled.

We regard the sale as valid, and conclude that the demand to annul it is not well founded. Plaintiff, however, is entitled to judgment on the note to be paid in due course of administration.

The note is not prescribed. The name of the former administrator indorsed on it on twenty-eighth December, 1868, and the placing of this claim on the tableau arrested the current of prescription, and it has not since acquired.

It is therefore ordered that the judgment appealed from be annulled,, and it is decreed that the demand to annul the sale of the lands de scribed in the petition be rejected. It is ordered that plaintiff recover judgment against the succession of E. P. Overby for one thousand and fifty dollars, with eight per cent, interest thereon from first January, 1865, to be paid in due course of administration. It is further ordered that said succession pay costs in both courts.

Rehearing refused.


text:
    No. 559.
    M. A. Copley, Administratrix v. Dorcas Dinkgrave.
    This is a petitory action for a tract of land. The plaintiff bases her title on a patent in her favor, issued by the United States, for the lands in controversy. The defendant claims by location of an internal improvement warrant-; the plaintiff by virtue of the act of 1851, giving bona fide purchasers from Maison Rouge a preference in purchasing from the United States. Each party displays a chain of title from Cox, holding under Maison Rouge, down to Copley. The tract of land was acquired by Brigham from Cox. He improved and cultivated it as a whole for several years before he sold it. It was then divided and owned by two different persons, and lastly Copley became owner of the whole tract as an entirety, in the same manner that Brigham owned it after the purchase from Cox. It' Brigham had remained owner, there is no doubt he could have entered the entire tract at the minimum government price. If so, when the two divided halves of said tract were reunited in Copley as one owner, and the same status existed as when Brigham owned the entire tract, there can be no forcible reason why cultivation and improvement upon any portion of the entire tract, whether upon the upper or the lower half, at the time when division existed, did not carry with it the right to purchase the whole of it at government price.
    Copley was owner of the entire tract in 1844, and cultivated upon it several years before 1849. This entitled him to the benefit'of the provisions of the act of Congress, enacted in the interest of persons who purchased lands in the Maison Rouge grant under the title of Cox.
    If frauds were perpetrated and malpractices resorted to by Copley in procuring transfers to himself, they were acts that took place seven years at least before the defendant’s alleged purchase and settlement. These frauds, if they were frauds, did no injury to the defendant. If injury resulted to anybody, it was to the parties with whom he dealt; but thirty years have intervened, and it does not appear that either they or any of their heirs have ever complained.
    Under the act of Congress of twenty-seventh January, 1851, all the lands within the limits of the Maison Rouge grant were reserved from sale, entry or location, from the date of the act until three months after the public notice required to be given by the second section of the act. That notice was not given until the twenty-fifth of October, 1853. Hence, on the fifth of September, 1853, the defendant was debarred from making a location of her internal improvement warrant upon any land within the limits of the Maison Rouge grant; and subsequently, in December, 1854, and on the twenty-first of January* 1855, when she again applied to locate it, it was out of her power to locate it upon the lands in controversy, because before her last applications were made, those lands had been secured to plaintiff under pre-emption right in pursuance of the provisions made by law in favor of purchasers in good faith under the title of Cox, and who had improved and cultivated those lands. Thereioro, defendant never acquired any title and plaintiff did.
    APPEAL irom the Fourteenth Judicial District Court, parish of Ouachita. Bay, J.

      Morrison. & Farrar., for plaintiff and appellee. Franklin Garrett & Baker, for defendant and appellant.
   Taliaferro, J.

This case was before us at the July term of this court at Monroe, in 1873, on the appeal by the defendant from a judgment of the lower court sustaining the plea of res judicata, filed by the plaintiff. The judgment then appealed from was annulled and the case remanded, to be tried on the merits.

On trial had on the remanding, judgment was rendered in favor of the plaintiff for the land but refusing her claim ior rents. The defendant has appealed. Plaintiff prays an amendment of the judgment giving her rents.

The action is a petitory one. The plaintiff bases her title on a patent, in her favor, issued by the United States for the lands in controversy.

The defendant answers, denying any right in plaintiff to the land claimed by her, and avers that the United States patent claimed under was illegally and erroneously issued to the heirs of G. W. Copley, and was procured by fraud and ill practices. The defendant claims by location of an internal improvement warrant, numbered 773. The plaintiff, by virtue of the act of 1851, giving bona fide purchasers from Maison Rouge, a preference in purchasing from the United States.

In being again called to consider this vexed and long continued litigation, we can not but be forcibly impressed with the fact presented by a voluminous record, containing all the proceedings that took place in the controversy before the various officers of the land department constituted by the laws of the United States, judges authorized to determine such contests, that the plaintiff was successful, and obtained the award in her favor by the successive decisions of the various officers of the land department before whom the case was carried, by the provisions of law, culminating at last by the judgment of the Secretary of the Interior. It certainly warrants the inference that justice was attained in the case when the parties had such ample means and time allowed them to exhibit their claims and present their evidence. It seems scarcely practicable that fraud could have escaped detection, had it been resorted to by either of the parties, when each was lynx-eyed, keen and active in the. promotion of her own claims; nor that during the several trials on the several appeals, errors could have crept in before the several tribunals in which the parties were heard; tribunals peculiarly qualified to judge and determine all the questions arising in-the litigation. These considerations seem to have entered the mind of the judge a quo, and to have borne much weight in the formation of his decree in the case.

It becomes our duty, however, to hear the defendant upon her allegations of unfairness, fraud and ill practices, by which she avers the plaintiff obtained judgment in the contest before the land department.

We understand the defendant as laying the gravamen of her case upon the allegation of fraud in George W. Copley, in obtaining the recognition by the government of a right to purchase at the minimum price, the lands in controversy, when in truth he had no such right; that his pretensions to such right was fictitious, and entitled to no respect, and, therefore, his claim so set up should be rejected.

Secondly, we understand her as complaining that wrong and injury have resulted to her from the refusal of the officers of the land department to recognize the location of the internal improvement warrant, which location she alleges she made.

Each party displays the claim of title from Cox down to Copley, of eight hundred and sixty arpents of land to be taken from the upper side of lot No. one, in the Maison Rouge grant. But the defendant claims no right under that title. Coming down to the sale of the land under a foreclosure of mortgage on the twentieth of August, 1838, it appears that a division of the land took place, by agreement and by the coroner’s deed to the purchasers, Fenner and Scarborough, title was made to Fenner of the upper half of the tract and to Scarborough of the lower half. Fenner, it seems, sold his half to Caldwell, and Caldwell sold to Brigham. It was next sold by the coroner under a judgment against Joseph and Brigham, and purchased by Smith, who sold to Copley, who thus acquired title to the upper half. Under a judgment against Scarborough, his half of the land, being the lower half, was sold at sheriff’s sale, and purchased by James Garrett, who sold to Copley who, in this manner acquired title to the lower half and became owner of the whole tract. It seems that the land claimed by Mrs. Dinkgrave and in controversy in this suit, lies on the lower half of the tract. It is denied on the part of the defendant that there were any improvements or cultivation on the lower half, and therefore no right accrued to any of the parties under the provisions of act of Congress giving to purchasers under the Cox title the privilege of entering the land so purchased at the minimum rate, because improvement and cultivation were required as a condition upon which the privilege was granted.

On the other hand, it is contended that the tract of eight hundred and •sixty arpents was acquired by Brigham, in his purchase from Cox, as one tract; only that he improved and cultivated it as a whole for several years before he sold it. It was as we, have seen, subsequently divided and owned by two different persons, and lastly, that Copley became owner of the whole tract as an entirety, in the same manner that Brigham owned it after his purchase.from Cox. There can be no doubt that if Brigham remained owner, he could have entered the entire tract at the minimum government price. Then, say the plaintiff’s counsel, when Copley became purchaser of the lower half and the separate ownerships of the halves were blended in Copley as one owner, and the same status existed as existed when Brigham owned the entire tract, cultivation and improvement upon any portion of the entire eight hundred and sixty arpents, whether upon the upper or the lower half, carried with it the right to purchase the whole at government price. We can see no forcible objection to this reasoning. The entire tract, as purchased from Cox, was never actually divided by a survey. No line of demarcation, it seems, was ever run and established, indicating with precision which was the upper half or which the lower half. There never was a time when, as between claimants and the United States, there was a separate claim set up in virtue of improvement and cultivation, to one-half of the eight hundred and sixty arpents as the upper half, and a like claim set up for the like reason on the other portion as the lower half. The government never had to deal with claimants, one portion of whom set up right to four hundred and thirty arpents of these eight hundred and sixty arpents by virtue of their purchase from Cox, and improvements and cultivation by them on those four hundred and thirty arpents, and another portion who set up on the same grounds precisely their claim to the other four hundred and thirty arpents. Had Brigham, for instance, never parted with his rights upon the entire tract lie purchased from Cox, and limited his application under the benefit of the act of Congress to only half the number of arpents he bought from Cox, and that half, the one on which his improvements were made and his cultivation carried on, then, having abandoned all claim upon tlie other half any other claimant to that half would have to establish separate improvement and cultivation on that half. Brigham might have purchased from the government all' that he purchased from Cox, or any part thereof, in virtue of his improvements and cultivation upon the land as an entire tract, limiting his claim, however, in case of taking less than the whole to such part of the entire tract as embraced his improvements. Copley, it is shown, was owner of the whole tract in 1844, and that he cultivated upon it several years before 1849. This we are of opinion entitled him to the benefit of the provisions of the act of Congress enacted in the interest of persons who purchased lands in the Maison Rouge grant, under the title of D. N. Cox. We regard it therefore of little moment whether or not Copley made improvements upon that portion of the tract which, during the separate ownerships before referred to, was called the lower half. The testimony on that point is contradictory.

On the part of the defense, there are numerous other objections raised to the validity of the title by which the plaintiff claims the property in controversy. Good faith in Copley in acquiring title and want of consideration as shown by several of the transfers, it is argued, render these transfers null. The denial by the plaintiff of any right in the defendant to set up these objections is, perhaps, not without force. If fraud were perpetrated and malpractices resorted to by Copley in procuring transfers to himself, they were acts that took place seven years at least before the defendant’s alleged purchase of an improvement and settlement upon the lands began. These frauds, if they were frauds, did no injury to the defendant. If injury resulted to any body it was to the parties with whopi he dealt; but thirty years have intervened and we do not find from the records that any of these parties or the heirs of any of them have ever complained. But conceding the right to the defendant to except to the validity of those acts, we are not prepared, under all the facts shown in relation to them, to pronounce their nullity.

The title presented by the defendant we will now advert to. Her title is based upon an alleged location of an internal improvement warrant on the land in dispute. The fact of such location ever having been made by the defendant, is expressly denied by the plaintiff. The defendant makes no pretension to any other right.

By an act of Congress, passed September 4, 1841, the United States made a donation to Louisiana and other States of large portions of the public domain for the purpose of internal improvement. This State, in subsequently disposing of these lands, adopted the method of selling warrants, termed internal improvement warrants, which were located by the purchaser or his assignee. But the selection of the lands donated to the States was made under the supervision of the Land Department of the Government and subject to its approval. The commissioner of the general land office, in August, 1847, issued instructions to the registers and receivers in regard to the selection or location of internal improvement land under the donation act of 1841. Through the officers of the land department the construction given by the executive department to the act of 1841, was made known. Instructions were issued, defining the mode of proceeding in the selection and location of the lands to be transferred to the States. It was announced through the land department “that the law allowed selections to be made of public lands, whether offered or unoffered, but no State selection is admissible of any land which is or may be reserved from sale by any law of Congress, or proclamation of the President, or on any tract which is reserved or' withdrawn from market for any purpose.” Lester’s Land Laws, vol. 1, p. 502. We think it is clearly shown that under the act of Congress of twenty-seventh January, 1851, all the land within the limits of the Maison Rouge grant was reserved from sale, entry or location, from the date of the act until three months after the public notice required to be given by the second section of the act; that that notice was not given until the twenty-fifth of October, 1853. The location of the defendant’s warrant could not, therefore, have been made on the fifth of September, 1853, because it was then forbidden by the law of Congress above recited.

We consider it unnecessary to consider the bills of exceptions presented by the record. We come to the conclusion that no location of the internal improvement warrant of the defendant was made.

For the reasons just stated, we think it clear that on the fifth of September, 1853, the defendant 'was debarred from making a location of her internal improvement warrant upon any land within the limits of the Maison Rouge grant; and that subsequently, viz: in December, 1854, and on the twenty-first January, 1855, when she again applied to locate it, it was out of her power to locate it upon the lands in controversy, because before her last applications were made, those lands had been secured to the plaintiff under pre-emption right in pursuance of the provisions made by law in favor of purchasers in good faitli under the title of Cox, and who had improved and cultivated upon those lands.

It was the express purpose of the enactment to first ascertain and provide for all persons of that class by receiving proof of their claims and confirming the right of pre-emption upon them. Pending this period entries of lands on other claims within the grant were suspended, and locations of warrants could not be effected. We conclude the defendant never acquired title, and that the plaintiff did.

It is therefore ordered that the judgment of the district court be affirmed with costs. The right to claim rents and revenues is reserved to the plaintiff in a separate action.

Chief Justice Ludeling recused in this case.

Rehearing refused.


author: Morgan, J.

text:
    No. 553.
    G. W. McGinty v. W. L. Richmond, Sheriff, et al.
    The exception to the jurisdiction of the district court was properly maintained. The execution having issued from the parish court, the parish court was the proper court to apply to for an injunction to restrain property seized under the judgment from being sold. The value of the property to be sold is not to be considered. If the parish court had the jurisdiction necessary to authorize it to render a judgment, it had jurisdiction to prevent that judgment from being satisfied by the sale of the property not subject to seizure.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse. Hay, J.

      O. T. Dunn, for plaintiff and appellant. Newton <& Hall, for defendants and appellees.
   Morgan, J.

Leopold, having a judgment against McG-inty, which was rendered by the parish court, issued excution and caused a certain piece of property to be seized.

Mc&inty obtained an injunction from the district court alleging that the property seized was his homestead and not liable to seizure. Exception was taken to the jurisdiction of the district court. The exception was properly maintained.

The execution issued from the parish court; the parish court was the proper court to apply to for an injunction to restrain property seized under the judgment from being sold. The value of the property sought to be sold is not to be considered. If the parish court had the jurisdiction necessary to authorize it to render a judgment, it had jurisdiction to prevent that judgment from, being satisfied by the sale of property not subject to seizure.

Judgment affirmed.