author: Breaux, J.

text:
    No. 11,090.
    Theresa Haas vs. Godchaux Bros.
    A partner sold his interest in a partnership of which he was a member, to a new firm.
    Prior to the sale the said partnership had consented to a payment of a claim against it, to the amount entered on the books.
    The new firm, purchasers and successors of the old firm, assumed, in the act of transfer to them, the liabilities of their vendor, the old firm.
    The new firm is bound for the payment of the claim assumed.
    APPEAL from the Oivil District Oourt for the parish of Orleans. King, J.

      Thos. J. Semmes for Plaintiff and Appellee.

      Buck, Dinkelspiel & Hart, for Defendants and Appellants,
    cited: Bates on Partnership, Secs. 317, 321, 347, 354, 365; Fell on Guaranty and Suretyship, p. 164; 1 Wend. 122; 7 Wend. 158; Story on Partnership, p. 142, Sec. 134; 30 An. 1292; 39 An. 1077.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff claims $4000 and interest of the defendant firm.

She says that she was a creditor of the firm of Godchaux & Silbernagel, composed of the defendants, Lazard Godchaux and Albert M. Silbernagel, her son; that her name stood on the books of the firm for the sum of $4000, as appears by an entry dated 27th October, 1891, but really made on or about the 15th of November, 1891; that on 6th January, 1892, the firm of Godehaux & Silbernagel was dissolved and a firm as its successor was on the same day formed, composed of the defendants, and thereupon, on the same day the dissolved firm sold and transferred all its assets to the new firm, its successors,, in consideration of which the new firm assumed and agreed to pay all debts and obligations of its predecessor, the dissolved firm, one' of which was the debt of $4000 aforesaid, due with interest from October 17, 1891.

She alleges that she had lent her son on the 15th day of October,. 1888, the sum of $5000, also the sum of $1500 on May 10, 1890, which he used as capital in the firm of Godehaux & Silbernagel; that the firm being in need of money in the fall of 1891, her son sold real estate from which he realized $4000, and on 27th October, 1891,. although his capital account was equal in amount to that of his co-partner, he put said sum of $4000 in his firm to the credit of his capital account. Subsequently, on or about 15th November, 1891, in order to pay a portion of his debt to her, he transferred on the books, of the firm said sum of $4000, from his own credit to her credit; that this transfer was made by erasing the original entry of $4000 to his-own credit, on 27th October, 1891, and crediting her with the sum of $4000 as of date October 27, 1891.

That the partner of her son, at first, objected to this transfer, but subsequently, after discussion and consideration, assented and agreed that her name should stand on the books of the firm on the footing of a creditor who had made a loan to the firm.

That the assent of her son’s partner was communicated to her; she accepted by substituting to her son’s debt the debt of the firm and endorsed on the note her son had given her in 1888 for the loan of $5000, a credit of $4000, as of date of 27th October, 1891. The defendants pleaded the general issue.

Plaintiff and her son Silbernagel have testified to the correctness of the above statement.

Another witness, a relative of the latter, testified that he had been informed of the claim before any dispute had arisen about its payment.

The book-keeper of the late firm of Godehaux & Silbernagel testified that in December, 1891, under the direction of the last named member of the firm, he changed an entry in the books of the firm so that thereafter the name of plaintiff stood on the books of the firm as a cr'editor for the amount claimed.

The son of the plaintiff testifies at some length, and says:

That he loaned the amount to the firm on 27th October, 1891.

That by error the entry shows that it was placed to the credit of his capital account; that he allowed the error to remain until November, when it was changed by his order and placed to the credit of his mother, with the knowledge of his partner; that he informed him at the time that he had as much money in the business as he, and that if he objected he would withdraw the amount from the firm, and that thereupon his partner consented.

The statements are contradicted by his partner, who says that it was not a loan, but placed in the firm as part of the capital account, and that he was never informed of the cancellation before the dissolution of the firm.

Leopold Godchaux, of the firm of Godchaux Bros., purchasers of Silbernagel’s interest in the firm of Godchaux & Silbernagel, testifies that he conversed with the latter about the business of the firm just prior to the purchase, and was informed by him that he owned the claim of $4000 in question, and urged it as a consideration for which he should be paid the price he asked for his interest.

The firm of Godchaux Bros, bought Silbernagel’s interest in the firm of Godchaux & Silbernagel on January 7, 1892. The purchasers assumed in solido and agreed to pay all the then existing obligations of the firm of Godchaux & Silbernagel. The vendor says that the^ amount of $4000 was due to his mother, a creditor. The defendants, vendees, defend on the ground that it formed part of the capital of the firm, and was transferred as such.

About the end of December of the year preceding the partners of the said firm met their traveling clerk and conversed in his presence in reference to the cancellation and entry made in the books.

Godchaux, the then partner, objected, and in the conversation asked Levy, the said traveling clerk: “Didn’t you agree to put this money that you were to raise up there to his capital account?” To which he replied: “Well, I remarked to him at that time, and I wouldn’t like to be very positive right now, there was so much said about it; there were several conversations at that time. He may have said it was put to his capital account; at any rate, it was certainly understood that the money was to go into the business, and I told that to Mr. Godchaux at the time in the conversation we had.”

Godchaux complained of the change of entries in the books, and added, “How do I know if Mrs. Haas may come at any time and want her money, and I would be just in as bad a fix as previously.”

The witness says he suggested that the entry remain as it was, and if anything happened to the firm the plaintiff would share pro rata with all the confidential creditors, to which the partners assented.

The book-keeper testifies that under the direction of Silbernagel he erased “ Capital account of A. M. Silbernagel,” and wrote in its place, “Loan account of Mrs. T. Haas.” Similar changes were made in the trial balance for October and November.

In the rough cash book kept by Silbernagel in person his name and the words “capital account” were erased and the following written: “ Loan account of Mrs. T. Haas. Cheek Whitney National Bank, §4000.”

The entries bear date October 27, 1891, the change was made about the 15th day of December, 1891. From the former to the latter date the amount formed part of Silbernagel’s capital account.

This witness further testifies that be asked him “if he didn’t give his capital account credit for four thousand dollars during October, and I turned to his account and said ‘yes, on the 27th,’ and he says, ‘ Well, that is wrong, that must go to Mrs. Haas’ account.’ I said, ‘ Well, shall I make a journal entry of this? He says, ‘ No, put it in the loan account of even date — same date, October 27,’ and I said ‘that will necessitate to have me to change my trial balance book for two months,’ but he insisted and gave me his knife, and under his instructions I scratched it out. * * * I had no right to disregard his order. Silbernagel had charge of the office and supervised office affairs.”

' A few days prior to the dissolution, in matter of a contemplated loan, the book-keeper of A. Lehman & Co. was sent in accordance with an agreement to examine the books of the firm of Godchaux & Silbernagel.

The latter as a witness testified:

“ When he came to the loan of §4000 I told him that this was my mother’s money, but that it would not trouble us. I did not say that it was merely a matter of form. I said that while this money was obtained on a plantation belonging to me, I owed more than this to my mother, and while it would be in the business, at the same time I paid her on account, and she must have credit for it on our books otherwise I would withdraw the amount.”

This book-keeper’s testimony is completely at variance with the above. He says:

A. “ Well, my purpose was to see as near as I possibly could in reference to the liabilities of the firm. When I came to the loan account, the amount of $4000 was there to the credit of Mrs. Haas.

“ Mr. Silbernagel stopped me and said: ‘This does not figure in the liabilities of the firm of Godehaux & Silbernagel, it has nothing whatever to do with the liabilities.’ Consequently I did not put it down as a liability; he gave me so to understand.”

Q. “ Did he tell you what that $4000 to the credit account of Mrs. Haas was for?”

A. “ No, sir; he said it was no liability, that it was not owing to the firm.”

Other witnesses prove that Silbernagel treated with his vendees on the basis that they were not expected to pay this claim.

He spoke of it as his own, and referred to it as an additional consideration to pay him the discount he asked.

Plaintiff alleges in her petition that he put said sum to the credit of his capital account, “and that subsequently, in order to pay a portion aforesaid to your petitioner, her son transferred on the books of said firm said sum of $4000 from his own credit as aforesaid to the credit of your petitioner.”

We will dispose of the question of the erasures in the books with the statement that it is the duty of each partner to carry on the business in the interest of the partnership. The accounts of his transactions should be concisely and correctly kept.

No partner has the right to prefer his individual interest to that of the firm, and he should not, even remotely, place himself in opposition to its interests.

It is elementary that there is a community in the property of the partnership.

Each partner has an interest in every parcel or the whole.

He has not an exclusive right to any part of the partnership stock in trade so as to enable him to separate it from the common for his own account, but he may transfer his interest in the firm.

The transfer of a sum or claim or part of the capital stock of the firm of which he is a member is not within the scope of its ordinary business, and will not bind the partners or the creditors of the firm without their consent.

But partners may, upon sufficient consideration, agree that the whole or any part of the property of the firm shall become the separate property of a third party in satisfaction of a claim against one of the partners individually.

The transfer will hold good as to the partners.

The rights of creditors are not an issue of the case.

The partner of Lazard Godchaux condoned the irregularity and ratified the entries as made.

The testimony of I. M. Levy, a disinterested witness, is uncontradicted. He states emphatically that it was agreed to let the entry remain in the name of the plaintiff as creditor.

He had no right originally to change a part of his capital account to the name of his mother as a creditor.

He did make it without right, but it was approved by his copartner.

Partners must be held bound by their own acts.

The debt to the plaintiff was from the date of the agreement a contract in the name of the partnership, within its scope, by the consent of Lazard Godchaux the only other partner.

Her name appeared on the books as a creditor. The trial balances for October, November and December, showed the indebtedness to her at the time that the defendant firm bought Silbernagel’s interest, and bound themselves to pay the indebtedness of the firm.

The records do not disclose that the creditor whose claim was entered, as is shown, had knowledge or notice that her son, as partner, had exceeded his authority, or that he had acted without the consent of his partner originally.

The agreement subsequently has made plaintiff’s right to payment absolute.

If the partner who sold made false representations as to the said claim, and thereby occasioned loss or damages, he only is responsible.

Judgment affirmed at appellant’s costs.


source: Caselaw Access Project

license: Public Domain

text:
    No. 11,081.
    Tutorship of the Minor Heirs of J. J. and S. L. Hollingsworth.
    1. The tutor who assumes the ownership of the interest of his wards in movable property owned by him with them in indivisión is bound for the payment of the value of the interest. A just medium between the two extremes is a safe guide in determining the value of the property.
    2. The amount for which other cotton plantations in the vicinity were rented is a fair criterion of the value of the rent of the plantation in which the opponents own one undivided third interest. It has a character of permanence and is not variant and discordant, as are mere estimates.
    The account of the tutor must be full and complete, and can not be amplified, as an account, by verbal testimony, ne presents it to the court as a complete account. It can be amended in writing; but the heir is not cited to answer a verbal account to be developed by oral testimony during the trial.

      8. Minors who are kept occupied by their tutor to teach them habits of industry and prevent them from growing up in idleness can not exact compensation of the tutor.

      i, The amount charged the tutor touching taxes on personal property is reduced to the proportion to which opponents have the right to recover.
    5. In computing interest the tutor is charged with interest on rentage and on the rentage capital in his hands at legal rates. He is allowed credit of interest at legal rates on all disbursements and indebtedness from tlieir respective dates. There is no compounding annually of interest.
    6. The tutor is entitled to 10 por cent, commission on the amount of revenues of his pupils arising from 5 per cent, interest on the pupils* funds in liis hands, from renfcago and other sources of revenue; but not on cash sales of personal property and cash collected on notes inherited by the minors.
    7. A tutor’s counsel fee in rendering his account is part of the expenses chargeable to his wards and will bo allowed, if reasonable, for counsel employed by him to render his account and have it homologated.
    Costs: The opposition, in the nature of an answer, was maintained in part; costs are due by the opponents.
    8. Partnership claims antedating the tutorship cannot be settled with the tutorship. The issues are not germane; they are separate and distinct and must be settled in other proceedings.
    APPEAL from the First District Court, Parish of Oaddo. Taylor, J.

      Alexander & Blanchard and Thos. G. Barret for the Tutor, Appellant :
    Tutor’s account, of his administration of minors’ affairs for fifteen years, filed all at one time, must ho construed as a whole — not year by year, as contended for hy opponents, though for convenience made out by the year. A knowledge of a tutor’s entire administration is necessary to a correct decision on his account. H. £>., p. 921, No. 9 (last9), 7 An. 151,

      The account, made out by the tutor and filed as his showing o£ how he has administered the estate of liis wards, must be read and construed by the light of the tutor’s testimony given in reasonable explanation thereof, and where the tutor testifies that in allowing the minors rent for property owned in indivisión by them and him he took into consideration the facts that he had entered up no charge against them for general repairs on the place, and had charged much less than their share of the cost of improvements, clearings, etc., effect must be given to this testimony.
    Charging less for improvements and nothing for repairs, the tutor debited himself with less for rent, which is the same thing as charging the minors with their share of the annual repairs and more for improvements than was charged.
    If more rent is to be allowed opponents, it opens the way to the tutor to ask the court to consider his claim for general repairs and for a greater allowance for improvements. Any other view would work manifest injustice to the tutor.
    The court a qua erred in refusing this. Tutor can set off additional claim for rent by additional claim for improvements and by claim for general annual repairs, even though not specifically claimed in the account filed. All allegations of answer (opposition) open to every objection and defence of law and fact-even set-off and compensation — may use as shield of defence what cannot be used as weapon of offence. 13 An. 412; 11 An. 547; 11 An. 386,671; 12 An. 578; 14 An. 670; 8 N. S. 141; 83 An. 438; 4 An. 140; 3 N. S., 695; 5 N. S. 500; 12 An. 164; . 14 An. 868.
    The ease of a tutor owning property in indivisión with his wards is to be differentiated from a ease where their property is separate from his. If separate from, his, C C. 337 applies, and he can not lease or hire it himself.

      Wise & Herndon for Opponents and Appellees.
   The opinion of the court was delivered by

Breaux, J.

The heirs of J. J. and Sailie Lee Hollingsworth oppose the aeconnt and supplemental account tendered by their tutor.

Their father died in 1873, and in the latter part of 1875 their mother died.

At the death of their mother in October, 1875, the three boys went to live with Ool. J. M. Hollingsworth, their uncle, and the two girls, from that time, resided with their maternal grandfather, Dr. Lee.

When the mother died the oldest of the five heirs, J. J. Hollingsworth, was about eight years of age.

The father of these minors was engaged in planting operations with his brother, the present accountant, in the name of J. M. & J. J. Hollingsworth, and the partnership was continued by the widow.

It was understood among the relatives of the minors that their uncle, Ool. Hollingsworth, should become their tutor. The record discloses that an application was made in June, 1876, by the maternal grandfather and their uncles for his appointment.

An order of court issued, dated June 19, 1876, to take an estimative inventory.

No inventory was produced on the trial, nor any bond, certificate of registry, oath, letters of tutorship or order of appointment; nor was there any testimony introduced to prove that an inventory was taken and that the formalities attending the appointment of a tutor bad been complied with.

J. J. Hollingsworth having reached his majority in 1890 was appointed under-tutor to his minor brothers and sisters.

In his own name and as under-tutor he a short time after petitioned for an order directing the tutor to file an account of his administration of his tutorship.

He charged in his petition that the tutor had taken possession of plantations, money, stock, Shreveport city property, retained possession of this property and had never filed an account.

The tutor having been so ordered filed his account and supplemental-account in 1891.

His account shows that the heirs inherited the following:

1. The “ White Hall” plantation, an upland place in Caddo parish •of 1300 or 1400 acres.

2. An undivided half interest in the plantation known under the name of “Furman.”

3. An undivided one-half interest in nine acres of land in suburbs -of Shreveport, and the buildings thereon.

4. An undivided one-third interest in 790 acres of land on Red •river, in Bossier parish.

5. The movable property on “ White Hall ” place was sold at public auction and brought the sum of $2411.

6. An undivided one-half interest in movable property on the Bossier plantation, retained by the tutor without legal proceedings, ■estimated by him, ex parte, at $1375.

Money on band $1773.45.

The Furman place was sold by the partnership of J. M. & J. J. Hollingsworth on terms of credit.

Part of the notes representing the purchase price was collected .after the death of the latter, amounting to a comparatively considerable sum, and the minors were given credit for their portion.

Only 280 acres of the land, included within the tract sold, was paid ¡for. The remainder became the property of the surviving partner and of the opponents, and is now held in indivisión by them. The administration of the tutor, in so far as relates to this plantation, is not opposed.; nor in so far as relates to “White Hall” plantation.

The property as valued by the tutor and the cash on hand amounted to $21,059.45.

With reference to the real estate the evidence discloses that it has enhanced in value since the tutor assumed possession, and that in that respect, at least, the interests of the minors have not sufered.

In the absence of an inventory, or of documents, or written contemporaneous enumeration and valuation of the property, the preponderance of testimony as to its vaiue must be ascertained.

The accountant was treated as tutor; he accounts in that capacity and the opposition is leveled against him as tutor.

He is responsible for the value of the property, the ownership of which he assumed, and for interest.

J. J. Hollingsworth, individually and as under-tutor of his co-heirs, opposed the account on a number of grounds, which are limited by their counsel in the brief and oral argument to the following:

1. That the tutor has failed to account, at its true value, for all the personal property belonging to the partnership once existing between the tutor and J. J. Hollingsworth, their father.

2. That he has not allowed them a sufficient sum as rent for their undivided half interest in property situated in the parish of Bossier.

That the amount he has charged for board and lodging should be reduced.

That he has charged them with taxes on property exclusively his.

They claim a larger amount of interest; oppose attorney’s fee and the costs as charged.

In their answer to the appeal they pray for amendment of the judgment in certain respects, which will be decided with other questions of the ease.

We will consider the grounds in the order presented.

Half Interest in Movables on .the Bossier Plantation, and their Value.

» The tutor charges himself with half of the value of eighteen mules, at $100 each, on this plantation in March, 1876.

The opponents claim one-half of the value of thirty mules, at $126 <eaeh.

The court a qua fixed the number at twenty-one, and their value at $1323.

It is urged by the tutor that there were not thirty mules on the place, as decided, and that a larger number should be deducted of tenants’ mules.

The weight of the testimony proves that there were two Irish tenants on the place, and that each owned two mules, and that colored laborers owned five'; that the number altogether was thirty, from which the nine were correctly deducted, leaving twenty-one.

As to their value. A witness — the only witness of opponents who has placed an estimate from personal knowledge upon their value— says that they were ordinary plantation mules.

Mules, he says, were in demand.

He estimates that they were worth from $130 to $180 each.

The tutor charges himself with $100 each, and testifies that it was their value.

The lower court fixed their value at $126 each.

We reduce their value to $115, thereby adopting a medium between the two estimates.

One-half value of twenty-one mul&s, at $115..................................................$1207 50
Interest from Mnrch 80, 1876, to March 16,1891............................................... 898 06&
Total..................................................................................................... $2105 56¿¿

Two thousand one hundred and five and fifty-six-one-hundredths dollars.

Bent for the One Undivided Third of Bossier Plantation.

The tutor credits the opponents with $500 per annum for value of the rent of opponent’s one-third in this plantation, from 1876 to 1891, both inclusive.

This credit is accepted by them for the years 1876, 1877, 1878 and 1879. They claim $1000 per annum for the remainder of the years to and including 1891.

Two-thirds of the plantation is owned by the tutor individually.

He cultivated the whole place for his individual account.

No attempt was made to divide the property, nor to lease it.

The tutor’s obligation is to pay the value of the interest cultivated by him. Succession Trosclair, 34 An. 326; Vance vs. Vance, 32 An. 188.

The learned judge of the District Oourt fixed opponents’ interest in the tillable land at 207 acres, and condemned the tutor to pay at the rate of §4.80 per acre from 1880, inclusive, to 1891, inclusive.

We do not hesitate to accept his figures as to the number of acres of tillable land, but our conclusion as to the value of the rent leads us to fix a lesser amount for rent.

The evidence upon the subject is confusingly conflicting.

The question is not confined to the value of the rent as an independent proposition.

There is testimony of record to prove the date at which part of the land was cleared, and the added benefit thereby; also to prove the different qualities of the soil, whether sandy, mixed sandy, or stiff clay, in regard to which opinions greatly differ, as well as in regard to the rent value of each grade.

The fertility of the soil was necessarily compared with that of other plantations, and the rent value of other lands.

The rent value of other places of which the tutor was individually the lessee was also specially considered, and all enter into the discussion in determining the value of the one undivided third of this plantation.

The extreme views do not recommend themselves as safe guides to follow.

To establish a just medium shall be our endeavor in analyzing the testimony transcribed in three voluminous transcripts.

Rent Value for 1880.

The interest of opponents in 1876 in the cultivated lands of this plantation was about eighty-three acres, and in 1880, owing to new clearings, it had increased to 207 acres — that is, since that year the plantation has embraced a tilled area of 647 acres, less twenty acres embraced in a lake.

The opponents contend that the clearing, building, ditching began actively in 1876, and that they were continued on a small scale until 1879-80, and that the bulk of the clearing being done in 1879, thus adding 376 acres to the cultivated land on the place, they have a right to a proportionate increase in the rent from 1879.

The tutor contends that as to 1880, at least, the rent should not be increased.

The number of acres cleared each year is not proven.

To give it rental value lands have to be cleared and improved. ■ If only a limited number of acres was cleared in 1880, the rent value of the land during some time thereafter was inconsiderable.

J. M. Foster, a successful planter, of large experience, testifies that the first year after clearing, land has no rental value, and that he charges but small rents for several years after.

This testimony supports the item for rent in the account for the year 1880, which is properly credited at $500.

The amount to be deducted this year is $500 from $931.50 = $431.50 plus interest from 1st January, 1881, $220.12; total $651.62.

Bent value 1881-1891, both inclusive.

To opponents’ contention that the sum since 1879 should be increased, it is objected by the tutor that he fixed an average rent per year, for the whole term, instead of so much for 1876, 1877, 1878, 1879 and 1880, when they had less open land and so much per year for the years following 1880, when there was a larger area in cultivation; in other words, that he divided the total for rent by the number of years without reference to the years he cultivated less lands, .and that he has a right to credit of the amounts larger than he should have charged himself for rents prior to 1880, as a set-off against any increase of the amount allowed in the account for rent since. •

Further, that he charged" them much less than their share of the costs of improvements and clearing, and had not entered up any charges against them for general repairs.

That if more rent is to be allowed to the opponents, it opens the way to the tutor to have his claim considered for general repairs and for a greater allowance for improvements than that charged; fhat he can sest off additional claim for rent by additional claim for improve - ments and by a claim for general annual repairs, even though not specially claimed in the account filed.

A number of cases are cited as decisive in point and as maintaining the tutor’s contention.

They all, except two, refer to actions between individuals and maintain that in pleadings the plaintiff need not deny the facts pleaded in avoidance of his claim, in the answer, in order'to be admitted to disprove them, and that he may resort to the exceptions of nonage, coverture, violence, fraud and the like without pleading them.

The two excepted eases are: Succession of Lerude, 11 An. 386; Succession of Aaron, 11 An. 671.

In the -former it was held that oppositions in such cases are open to such objection as those we have just stated; in the latter that the administrator may offer evidence to show that the opponent has appropriated property to her use belonging to the succession of her husband.

The administrator or tutor must present in writing full and complete account of all moneys received or paid by him, and of all property of the estate; it should set forth an accurate history of his administration. Rauls, Tutrix, vs. Rauls, 6 An. 685.

The heir is not cited to answer an oral account or an account to be developed by oral testimony during the trial.

A demand can not be increased without amending the pleadings. O. P. 156.

We know of no rule of law whereby property charged in an account as worth $4000 can be increased, as to its value, outside of the account, in order to extinguish proven liabilities.

In thus deciding we do not eliminate from consideration the general favorable state of the plantation, nor the fact that the rent covers a term of years, during which the tutor has kept the plantation in excellent repair.

It is abundantly proven that the land, the field implements, the stock and the building improvements are in the best order and condition. These facts are inseparable from the value of the rent. The witnesses differ as to the quantity of land embraced in each of the different grades of land in the plantation.

The variance is from one-third to about one-half — i. e., there are witnesses who testify that only one-thud of the area is stiff clay land of an inferior quality, and others testify that it is nearly one-half.

The number of witnesses thus testifying is about equally divided.

The rent value of this stiff inferior land is $1.50.

The area, if large, at that rate would lessen materially the rental value of the whole place.

The contradictory testimony as to the quantity of land does not abate when the witnesses testify as to the value of the rental.

It ranges in amount from $1.50 an acre to $10.

It compels us to rely chiefly on rental value of leases that have actually been made of lands in the vicinity.

The class of facts these leases present suggest more certainty than mere estimates.

The amount paid by a number of lessees is proven.

The amount at which one of the places was leased was as low as $2.00 per acre, and the highest $3.50 an acre; the lessees kept up the repairs.

The other contracts of lease were for larger rental; the lessees had not bound themselves to keep up the repairs and the leases were for comparatively short terms.

Taking as a basis those places leased as to which the lessees had bound themselves to keep up the repairs we fix the value of the rent at $2.75 per acre.

The annual rent on the plantation is therefore $569.25; $362.25 less than amount allowed in the judgment. The interest on this last sum, which must be deducted from the judgment, together with said sum, is $4862.32.

Board and Lodging of Three of the Minors.

The boys are charged with board and lodging at the rate of $15 per month.

The amount of the board per month is not objected to, but the opponents complain that the tutor has not given them full credit for their absence from home.

The account begins October 2, 1876.

The two girls never lived at their tutor’s; no charge is made against them for board.

In the account it appears by the charges that the boys lived with their uncle and tutor from October 2, 1876, to October 2, 1883; and that from October 2, 1883, to October 2, 1887, only two lived with him; and from October, 1887, to October, 1888, one boy boarded with him during twelve and the other during nine months. From October, 1888, to October, 1889, board is charged to but one boy; and from October 2, 1889, to April 2, 1890, it is charged to one for six and to the other for three months. From April, 1890, to February 25, 1891, it is charged to one boy for six and to the other for three months. ‘From April, 1890, to February, 1891, it is charged to one boy for three months of the year 1890.

The total charged for board is $6390. The following item appears in the account: “By deduction on board of boys for absence not allowed in former entries, $900. In conformity with this entry this sum must be deducted, leaving $5490 to the tutor’s credit on the board account.

With reference to the last amount the opponents contend that it is larger than the amount actually due.

Evidence was heard; the preponderance maintains the opposition and the judgment of the lower court in this respect.

The $900 can not be applied to the satisfaction of the additional absences proven, for they are not absences not allowed in former accounts and were not referred to when the entry was made.

The time of the absences or the names of the absentees is not disclosed by the entries, nor by the evidence, therefore no alternative is left but to deduct it from amount of absences not allowed in former entries — i. e., from the total amount charged.

The district judge reduced the claim for board for the years 1878, 1879, 1880, and eleven months of 1881, by deducting therefrom $180 for each of the years 1878,1879 and 1880, and $165 for eleven months of 1881, which appears correct to us.

In oral argument it was stated that one of the minors had rendered services at least equivalent to the board charged him.

The tutor testifies that he considered it his duty to keep them occupied; to teach them habits of industry; to prevent their growing up in idleness.

The question was decided in Hebert vs. Hebert, Manny’s Unreported Cases, 214, from which, in this ease, we find no reason to depart.

Taxes.

The next complaint in the order of the opposition is that the tutor has charged to opponents certain taxes paid by him on his individual personal property in Caddo and Bossier parishes.

The tutor explains that in the assessment of the land were included assessments on personal property which belonged to him individually.

That he had paid taxes for the same years upon real property in his name in Arkansas, in which the minors have an interest, for which no charge had been made against them.

He also had paid insurance premiums upon the property in Shreveport and in the gin house in Bossier, for which no charge had been made against the minors, and these items he considered fully set off the amount debited against them on account of the tax on his personal property.

These claims are not carried on the account. They can not be allowed in the manner proposed.

The interest in the places in Arkansas is separate and distinct; as to the other claims they are not subject to consideration, not being charged.

As to the amount deducted of these taxes of the tutor individually, it is objected by him that he was erroneously debited with the full amount of such taxes; it should be, he states, one-third for Bossier and one-half for Caddo, for the minors have been charged in that proportion.

It is stated in opponents’ brief that the tutor charged his wards with one (1-3) third of the personal property tax in Bossier and Caddo parishes and city of Shreveport. The amount was larger, but it contains nevertheless an admission that the tutor did not charge his wards the whole of said tax.

In deducting the taxes erroneously charged on the personal property of the tutor he has a right to a credit back of one-half on the Caddo taxes and one-third on the Bossier taxes, being an amount overcharged.

This also applies for correction on alleged erroneous charges on the personal property listed in Bossier parish in 1877.

It was assessed for taxes of that year and was not excepted as ■ claimed by the tutor, for the tutor was charged a personal property tax for that year, as held by the judge below — and as made to appear by the assessment roll.

Deducting one-half of part of the tax, and interest of that assessed in Caddo and in the city of Shreveport .and one-third of the tax and interest for Bossier, we find $389.51 as the amount to be deducted.

Interest Account.

Opponents claim interest from year to year on the amounts due them.

The mode of computation is clearly laid down in Vance vs. Vance, 32 An. 186; Succession of Trosclair, 34 An. 326.

We quote from the first:

“As the tutor mingled the administration of the minor’s estate with his own, cultivated it for his own benefit, the proper mode of computation is to charge him with rent of the lands, slaves and movables, and at the end of each year to charge him 5 per cent, interest in the amount of that year’s rent.”

This mode is approvingly referred to in the second case.

Interest was calculated on the active and passive side of the account. The tutor is in fairness and equity allowed the same rate of interest on all disbursements made by him for the maintenance and education of his ward, and for improvement of their estate from their respective dates, as he is charged with ou rentals and on sum received by him.

A computation leading to a compounding of interest was rejected in Jarreau vs. Ludeling, 12 M. 106.

“ The law requires the tutor to invest all amounts in his hands when and as often as they reach the sum of §500; but it does not say that in default he shall pay compound interest.” Vance vs. Vance, 32 An. 186.

In this case, therefore, interest must be calculated from the respective date of indebtedness, and is not subject to be added to the capital at the end of each year.

Tutor’s Commission on Revenues.

The lower court allowed the tutor a credit of §2925.35 commission on receipts as charged in the account (in the restated account). It is contended by them that commission should not be allowed on an additional amount of §8026.15, as it represents cash sale of personal property, collection of notes, cash in hand, and not revenues.

The tutor is entitled to 10 per cent, commission on the amount of the revenues of his pupil.

Revenue is an amount accruing to the minor through the care and labor of the tutor.

In order that he may secure that commission it must be derived from crops, rent, interest. Certainly not amounts derived from sales or cash inherited.

Theamountor §1377.83 being 10 per cent., commissions and interest thereon being allowed on cash sales, rent notes collected and cash inherited, is deducted from the tutor’s debits and placed to the credit of the minors.

Fee of Attorneys and Costs.

The opponents oppose the allowance of $500 for lawyer’s fees, and object to the judgment of the lower court condemning opponents to pay costs of the opposition on items not sustained.

We do not think that the amount is excessive. The interests are large and only this fee has been charged.

There are no good grounds to reject the claim for costs. The account as originally presented was not correct in all respects. It does not, however, disclose the least purpose on the part of the tutor to enrich himself at the expense of his wards.

He has not been in the least benefited by the absence of an inventory and other legal proceedings.

Supplemental Account.

A supplemental account was filed some time after the original account.

It is opposed on the ground that this whole supplemental account s not connected or in any way involved in the administration of the tutorship, but is based upon transactions growing out of the business of Col. S. M. Hollingsworth and their father, who, in 1873 and prior, were conducting a planting partnership, and which was continued after the death of their father in 1873 by their mother until her death the latter part of 1875.

The items appearing on this account are partnership claims, which can not be brought into the settlement of the tutorship. The issues are not germane, they precede the tutorship, and must be settled in other proceedings.

We think the rights of the tutor should be reserved, and whatever claims he may have should form part of a settlement of the partnership.

The Improvements.

In the brief of opponent’s counsel reference arguendo is made to the amount charged for them. The objection is not included in the answer praying for amendment of the judgment. We have nevertheless given the matter attention, and have concluded that the amount allowed by the District Judge for improvements on the tutor’s property do not present any ground for objecting.

It is therefore ordered, adjudged aud decreed that the judgment of the lower court be amended by deducting from it the difference between half the value of twenty-one (21) mules, as before stated.

And the difference in the interest, leaving total two hundred and two 12-100 dollars............................................................................................ $202 12
By deducting on the rent allowed and the interest thereon, four thousand eight hundred and thirty-two and 39-100 dollars........................................ 4,832 39
And by deducting amount of taxes charged in error in the restated account, viz., three hundred and eighty-nine and 51-100 dollars.............................. 389 51
$5424 02
That the judgment be further amended by increasing the minors’ credits in the sum of thirteen hundred and seventy-seven and 83-100 dollars, being commission $802.01, interest $575.22=$1,377.S3 ............................................. 1,377 83
Leaving four thousand and forty-six and 19-100 dollars to be deducted from the judgment ($10,563.73 — $4,046.19=$6,517.56)................................................$4,046 19

The judgment as amended is for $6517.56 — six thousand five hundred and seventeen and 56-100 dollars.

Whatever rights the tutor may have to recover claims due him in settlement of partnership with J. J. Hollingsworth are reserved.

***** ***

The judgment appealed from is amended, and as amended it is affirmed at appellee’s costs.

On Application for a Rehearing.

Opponents, in their application for a rehearing, object in the first place to the reduction from $4.50 per acre per annum to $2.75 for rent of plantation 1881 to 1891, inclusive.

A number of plantations in the immediate neighborhood have been leased for less per annum than the amount allowed by this court.

The following land owners, cultivators or planters, W. C. Brownlee, J. O. Wimbish, W. O. Vance, D. E. Nicholson, J. M. Arnold and others, estimated the rental at less than the amount fixed by the court.

About an equal number of witnesses testified to a larger amount.

We gave weight to the testimony as to rental of other lands of about the same value and allowed as much for the lands in question.

In deciding the value of the rent the improved condition of the place could not be overlooked.

The opponents aver that “it is confessedly one of the finest on Red river.”

During fifteen years the land was fertilized, drained and fenced at the tutor’s individual expense.

The testimony shows that had it been rented out each year, or for a term of years, the rental would have been less, also the present value of the place. The second ground is not supported by the facts.

The $500 and interest for the rental of 1880 are a part of the judgment.

The amount of $931.50 was reduced to $500, and $431.50 plus interest was the amount deducted from the judgment.

It is urged by the opponents that if the court reduces the rent allowed to opponents then the tutor’s commission should be reduced on said sum, which would give opponents a credit on that sum of $398.47.

The opponents in their answer to the appeal claimed a reduction of $802.61 in principal and $575.22 in interest; this was allowed.

Our attention having been called to the commissions allowed on the amount deducted from rent account, we have re-examined that issue and find that the amount deducted is not $3984.75, as stated by opponents, but $4832.39.

Without reference to the total, we have added each item of revenue on the debit side of the restated account.

They amount to..............................................................................$23,177 21
Kents deducted............................................................................ 4,832 39
$18,344 29

Commission $1834.48, instead of $2122.74 as heretofore, leaving to be added to the judgment $288.26.

The Board of the Minors.

A deduction of $900 was made from the account for board, as-originally presented.

Considering this reduction and that the minor against whom the account was made out, it is shown, visited and remaine'd at his tutor’s home on Saturdays and Sundays; that he was sick and taken care of by the tutor at his home, we agreed with the district judge that the $84 charged for part of the time he did not board with the tutor should not be deducted.

The questions have been argued at length and the issues well defined.

The amendment is therefore made without granting a rehearing.

It is therefore ordered, adjudged and decreed that our judgment be and is amended by increasing the amount of the judgment by adding $288.26 — i. e., from $6517.16 to $6805.42, the last amount being now the judgment of the court.

As amended the judgment remains undisturbed.


author: Nicholls, C. J. Fenner, J. Breaux, J.

text:
    No. 11,069.
    C. V. Thibaut, Sheriff and Ex-Officio Tax Collector, vs. Joseph P. Kearney.
    A planter or farmer keeping a store on Ills plantation, and selling goods and liquors to his employees exclusively, falls undertheterms of the law exacting a license from every one “ doing a business of selling at retail.”
    APPEAL from the Twenty-second District Court, Parish of Plaque-mines. Livaudais, J.

      Robert Hingle for Plaintiff and Appellee.

      Gibson & Hall and R. L. Tallis for Defendant and Appellant:
    A planter who keeps such articles of merchandise only as are needed by laborers on his plantation, and sells them only to those laborers and not to tlie general public, is not a retail dealer within the meaning of the revenue act, and hence is not subject to the license or tax imposed on retail dealers, and liquors so sold in connection therewith do not render such planter liable to a license as liquor dealer under Act 150 of 1890. 30 An. 972, Luling vs. Labranche, Tax Collector; 37 An. 902, Thibaut vs. Diamond; 42 An. 9, City of New Orleans vs. Clark & Header.
    Where no license is provided in the Revenue Act 150 of 1890 for a planter so supplying his own hands only, none is due, as it is omitted, and the courts can not read into a law what is not affirmatively there. 43 An. 959, Baniard, Sheriff, vs. Gall & Pharr.
    The neglect or failure of one party to prove what is essential to his recovery is not cured by the evidence of the other leaving the fact doubtful, more especially when the evidence is known to be in possession of a witness that is examined by counsel for all parties litigant, and there should be judgment for defendant. 17 An. 294, Briggs vs. Simonds; 18 An. 116, Kearney,Blois & Co. vs. Ilauclic; 22 An 877, Jackson & Anderson vs. Beling.
   The opinion of the court was delivered by

Nicholls, C. J.

On a rule taken by plaintiff against the defendant the latter was “ condemned to pay $105 with 5 per cent, on said .amount for lawyer’s fees and all costs” for a license carrying on business as retail merchant and liquor dealer. The defendant in .answer to the rule pleaded the general issue, and denied specially that he was a retail merchant owing a license. He avers that he keeps a store on his plantation, in which are sold only such goods and merchandise as are needed on his plantation, and that he makes mo sales to the general public, or to persons other than his laborers on the plantation. That defendant being engaged in agriculture is otherwise exempt from license taxation by the Constitution of this State and that of the United States.

On trial of the case plaintiff testified that defendant is the owner of the Belle Chasse plantation; that he knows that he carries on the business of retail merchant and liquor dealer; that he made demand on him for a license for carrying on the business of liquor dealer and retail merchant, and that he answered he did not owe any license because he sold only to hands employed by him on his plantation. This witness was not cross-examined.

Defendant’s manager testified that there was no store on the plantation wherein merchandise was sold to any persons other than the plantation laborers; that supplies are sold only to the hands employed thereon; that he himself, and not the defendant, attended to the store; that several applications by persons who did not reside on the plantation were made for the sale of supplies, and that he positively refused to sell to any but those employed on the place; that the sales were restricted to the incidental supplies required by the laborers on the plantation; that no sales were made to any persons working on the levees who were not connected with the plantation; that there were about fifty-eight men employed on the plantation, with the exception of two or three men who are ditching on the place, who live at Little Rock; that all the rest reside on the plantation; that groceries in general were sold in the store, also liquors; that the profits are merely enough to pay the man for keeping the store, and the freight and general expenses of the store; that it was kept merely for the accommodation of the hands and not with a view of making any profits; that liquor was sold to no person other than those employed on the plantation; that the ditchers went to work every morning and remained until night; that the nearest public store to the plantation was two miles off.

The defendant on appeal claims that under these pleadings and evidence the judgment of the District Court should be reversed. He relies greatly on the case ot Lulingvs. Labranche, reported in 30 An. 973, and asserts that there is a difference between his position and that of Diamond, the defendant in the case of Thibaut vs. Diamond, 37 An. 902, in this, that it was shown that in the Diamond store sales were made to outsiders, whereas the evidence in this case establishes the'fact that he dealt exclusively with his employees.

For the purposes of his case we will assume this last statement to be correct, and examine the defendant’s rights on that theory.

We have referred to Act No. 123 of 1866 (p. 236) and to Act No. 89 of 1868 (p. 119) alluded to in 30 An. 973, and find that the former act was an act entitled “An act to authorize planters and farmers to furnish their freedmen and other employees with articles of merchandise without incurring the penalties of retail merchants,” and that it was evidently passed to exempt planters and farmers so dealing with their employees from the operation (under which they would otherwise fall) of the existing general law by which retail merchants were required to pay a license, and we also find that Act No. 89 of 1868 was entitled “An act to repeal an act entitled an act to authorize planters to furnish their freedmen and other employees with articles of merchandise without incurring the penalty of retail merchants, approved March 26, 1866,” and that it reads as follows:

“ Whereas the act of the Legislature the title of which is set forth in the title of the present Act 15 is against the interest of the laborer and an act of injustice to the paying storekeeper, be it enacted, etc., that the same be repealed.”

It is conceded in the case of Luling vs. LaBranehe that the passage of Act No. 123 of 1866 is a clear legislative interpretation of the words “retail merchant” in the antecedent license law, and that but for the act of 1866 merchants and farmers furnishing their employees with supplies would fall under the terms of the revenue act, and that the second act was intended to deprive the planters who thus sold of the benefit of the latter statute, but the court goes on to declare that the effect of this repeal is to leave the question as a judicial one,” since the “ designation of a class would then appear in the revenue act without any explanatory or qualifying interpretation elsewhere.”

We think the court was mistaken in saying that the farmers and planters mentioned were exempted from license as retail merchants simply by a “ declaration” in the act of 1866 that they did not fall under the definition of the words “ retail merchant.” They were exempted by force of a direct affirmative exemption, one which the court rightly declared inconsistent with their being not held by a license before. We think the court was also mistaken in saying that when the exemption law was repealed it left the meaning of the words “retail merchants” a judicial question without any explanatory or qualifying interpretation elsewhere.

~We do not see how the repealing of an “ exemption” law, when the repealing statute assigns as a reason for the repeal that the further continuance of the exemption was against the interests of laborers and an injustice to tax-paying storekeepers, could be held to bring about the very reverse of what the repealing act declared to be its purpose. We do not think the matter was “ set at large” by this repeal, but that the original legislative interpretation of the words gained, on the contrary, additional strength thereby. It was the exemption and not the interpretation which was repealed.

We are of the opinion that the words of the present law, that a license is exacted for any business of selling at retail,” reach the case of the defendant, both under legislative and judicial construction, and that he is liable as claimed by the plaintiff. To construe the law otherwise would be to place it outside the rule of equality and uniformity.

Defendant’s manager testifies that the store on defendant’s plantation was not kept with a view of profit; that the profits are merely enough to pay the man for keeping the store and the freight and general expenses of the stor.e. The motive which the defendant might have in keeping the store on his place is not the controlling factor in the case.

We think the preamble of the repealing act of 1868 is as applicable now as it was then, and that it would be “ against the interests of the laborers and an injustice to the tax-paying storekeepers” to sustain defendant’s position, and we have no reason to believe that the Legislature has changed its views on that subject.

The conclusions we have reached do away with the necessity of an examination of the question raised in defendant’s brief, as to whether a liquor license was demandable of him unless and until it had been determined that he was a retail merchant, his claim being that he would be only liable as a liquor dealer when it should have been established that he sold liquors in connection with business as a retail merchant.

We understand the defendant to contend in his brief that, granting his liability to pay a license, there is not sufficient evidence in the record to justify a judgment of the amount which he has been condemned to pay. There are several reasons why we can not accede to his views. It was defendant’s duty, if liable, to have gone forward and demanded a license at the beginning of the year, presenting an exact statement of his situation. Not only did he fail to do this, but when applied to for payment he, without contesting the amount claimed, denied, as he still denies, all liability. Not only has he not pleaded that he was “ overcharged,” but when plaintiff, in connection with the demand set up by him, testified that he knew defendant to be a retail merchant and liquor dealer, defendant failed to take the stand as a witness. If he was overcharged, he was better informed and better able to show that fact than any one else and he should have done so after his default.

For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby affirmed.

Dissenting Opinion.

Fenner, J.

This claim is for a license under the license act of 1890, and under that clause of the act which levies a license on the “ business of selling at retail,” or, as elsewhere designated, in the act, the business of “retail merchant.”

Under a like statute imposing a license on “retail merchants,” or, as otherwise described, “for keeping a retail store,” this court held:

“A person whose business or avocation is that of planter or manufacturer, and who keeps in store only such goods and wares as his empioyés require, and who sells to them alone and not to the general public, and who sells, not as a retail dealer does, exclusively for the profit, but only as an advance to his laborers and an incident to his main business, and to promote its better administration, is not a retail dealer within the meaning of the revenue act, and the tax or license imposed upon that class of persons by that act is not legally demandable from him.” Luling vs. LaBranche, 30 An. 972:

This ease was substantially affirmed in a later decision, where the court referred to it and said: “Granting that the law, as it now stands, would not justify the exaction of a license where sales from a plantation store were confined strictly to the laborers on the place, still where this restriction is not observed,” etc. Thibaut vs. Diamond, 37 An. 902.

The first decision was rendered in 1878, fourteen years ago. The Legislature has passed numerous license laws since that date, in any of which it was perfectly competent to subject to license plantation stores selling exclusively to their own laborers, by express description, but instead of doing so, it continued to employ the same general words which had been held by this court not to include such stores.

It is conceded that defendant in this case keeps a plantation store and sells exclusively to his laborers and employees.

He, and the thousands of planters in like case, had the right to suppose that they could conduct such business without subjecting themselves to license undertke interpretation placed on the statutes by this court, which he was authorized and bound to accept.

If we now reverse these decisions all planters who have conducted such business will find themselves liable for licenses for all years within the prescriptive term.

If there was error in these decisions it has been condoned by subsequent legislative acquiescence.

And, independently of this, it furnishes the strongest possible case for application of the rule of stare deeisis.

As said by Mr. Sutherland in his very recent work on the subject: “A judicial construction of a statute becomes a part of it, and as to rights which accrue afterward, it should be adhered to for the protection of those rights. To divest them by a change of the construction is to legislate retroactively.” Suth. Stat. Const., See. 319.

So far as contract rights acquired on the faith of such adjudications are concerned, the Supreme Court of the United States has held: “After a statute has been settled by judicial construction, the construction becomes, so far as contract rights under it are concerned, as much a part of the statute as the text itself, and a change of de - cisión is to all intents and purposes [the same in its effect on contracts as an amendment of the law by legislative enactment.” Douglas vs. Pike, 101 U. S. 677.

No reason can be given for a distinction between contract rights and other rights acquired in good faith by action on the faith of such construction.

If, instead of a license, it were a criminal penalty resulting to defendant from our change of decision, he would undoubtedly be protected by the constitutional inhibition against ex post facto laws.

“ Whatever might be our impressions, were the matter res integra, we deem it important in the construction of statutes to adhere to what has already been adjudged. The judicial interpretation becomes, as it were, a part of the statute, and should not be changed but for most cogent reasons.” State vs. Thompson, 10 An. 122.

“ A cardinal rule in dealing with written instruments is that they are to receive an unvarying interpretation and that their practical construction is to be uniform. A constitution is not to be made to mean one thing at one time, and another at some subsequent time.” Cooley Const. Lim., p. 67.

“Asa general rule, and particularly in regard to the construction of statutes, courts adhere strictly to the decisions of their predecessors. ‘Thirty-four years have nearly passed,’ said Lord Kenyon, in construing a penal statute for the observance of the Lord’s day, ‘ since the decision in Rex vs. Cox, which informed the public that all bakers have a right to do what is imputed to this defendant as an offence. This circumstance alone should have weight in the determination of this case,’ and the words being doubtful, the original decision was adhered to.” Sedgwick Stat. Const., p. 215.

“ There are many questions upon which there is no objection to a change of decision other than grows our of those general considerations which favor certainty and stability in the law. There are questions where the decisions did not constitute a business rule, and where a change would invalidate no business transactions conducted upon the faith of the first adjudication. * * * But where a decision relates to certain modes of doing business, which business enters largely into the transactions of the people of a State, and a change of decision must invalidate everything done in the mode prescribed by the first, when a decision has once been made and acted on for any considerable length of time, the maxim becomes imperative and no court is at liberty to change.” Sutherland Stat. Const., Sec. 317.

The fact that this is a different statute from the one first construed does not affect the case. It is a statute on the same subject matter* using the same language to express the same meaning, and every one had the right to suppose it continued to have the same meaning and effect which the first decision determined it had. The fact that the Legislature did notchange the language, signified its acquiescence in the construction given, and thus powerfully reinforces the reasons-for applying the maxim.

I find nothing in the change of Constitutions of the State having; any bearing on the ease.

I am, therefore, compelled to dissent.

Dissenting Opinion.

Breaux, J.

I have no dissent to express from the interpretation of the statute in said case, as stated by the majority of the court.

The decisions of this court heretofore unreversed formed the law, and entered into the body of precedents. The ruling in making the change might, for the purpose of settling all questions, embrace the possible issues as to whether any demand can be made for previous years for amount and penalty.

The implied guarantee of the State not to disturb past final settlements, under existing precedents, are questions which may now be decided, and thereby add to the certainty and security of judicial interpretation.


author: Fenner, J. McEnery, J.

text:
    NO. 11,091.
    Succession of Henry.
    “When the record clearly exhibits a “ matter in dispute ” exceeding $2000, a motion .to dismiss on the ground that the “fund to be distributed” has been reduced ibelow that sum will be denied.
    A fee of $5000 in a succession whose effects amount to $62,000 is not excessive, when important and valuable services have been rendered by the attorney in litigation and in the general management of the succession, which devolved exclusively upon him in consequence of the continued illness of the executor.
    ÍTh« junior mortgage, the “ least ancient,” whether there are one or several immovables mortgaged, is subject to contribute to the payment of privilege debts in case of deficiency in proceeds of sale of movable property.
    APPEAL from bhe Civil District Court for the Parish of Orleans. Voorhies, J.

      White, Parlange & Saunders for Opponent and Appellant.

      J. O. Gilmore, Gilmore & Baldwin, Denegre & Bayne, and P. L. Fourehy, contra:
    In determining the fees of attorneys for services rendered in settling a succession, we must consider the amounts involved as shown by the inventories, and also the care and responsibility placed on the shoulders of these attorneys and the professional slrill and attention shown by them in avoiding litigation.
    Where fees charged by attorneys in a succession are allowed by a judge below, not withstanding opposition filed thereto, this court will presume that the lower judge can best determine the value of those services and will not reduce the .amounts. Succession Brady, 43 An. 166.

      Where the proceeds of property subjected to several successive mortgages are insufficient to pay all the debts and the charges, the loss which may result must be borne by the creditor whose mortgage is the least ancient. R. O. C., Arts. 8269, 8270; cases cited.
    An opponent will not be permitted to join inconsequential objections with a demand for reduction of attorney’s fees in this court.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Fenner, J.

The motion to dismiss is based on two grounds.

1. That the appeal bond is insufficient in amount.

2. That the amount in dispute, or fund to be distributed, is beneath the lower limit of this court’s jurisdiction.

The first point has no merit, and as it is not alluded to in movers’ brief we assume that it is abandoned.

The second is equally without merit. The appeal is from a judgment on an opposition to an account which proposed the dis-distribution of a fund exceeding $60,000.

The account exhibited privileged charges aggregating about $9000, one item for which was $5000 to the succession attorneys. The account specifically recited that the Whitney National Bank, as junior mortgage creditor, was bound to contribute from the proceeds attributable to its mortgage the .whole of the privileged debts after first applying to said debts the proceeds of sale of certain furniture, leaving a balance of $5978.76 to be contributed by the bank.

The Whitney Bank filed timely opposition to the account, specially opposing the privileged allowance of $5000 attorney’s fees as excessive, and also opposing, on that ground, the amount of the contribution claimed from it, and prayed for an amendment reducing the attorney’s fees to $2500, and reducing the amount of its contribution accordingly.

Subsequently the bank consented to the payment of $2500 to the attorneys, both parties reserving their respective rights as to the remaining $2500 to be decided by the court under the pending opposition.

Under this reservation the opposition went to trial and decision, resulting in a judgment dismissing it, maintaining the attorney’s fees at the full sum of $5000, and maintaining the contribution required from the Whitney Bank as stated on the account.

Irrespective of subsequent dealings with the “fund to be distributed,” the case clearly exhibits a “matter in dispute” exceeding $2000 and falls under that branch of our appellate jurisdiction.

Motion to dismiss denied.

On the Merits.

McEnery, J.

The executor of this succession filed an account, which was opposed by the Whitney National Bank. The opposition was directed to the item of $5000 for attorney’s fees, and subjecting the property, on which the bank held a junior mortgage, to the payment of several privileges on all the property. There was judgment dismissing the opposition, and the bank appealed.

There were several attorneys employed in the settlement of the succession, J. O. & S. L. Gilmore, and Bayne & Denegre and P. L. Fourchy.

By agreement between all parties the fee which may be allowed J. O. & S. L. Gilmore shall embrace the amount due for services to the succession by Bayne & Denegre and P. L. Fourchy, which they are to apportion among themselves.

Mrs. Henry, the executrix, died after the account was filed, and B. W. Tayior qualified as executor, employing Bayne & Denegre, but J. O. & S. L. Gilmore, by consent, continued their services in prosecuting to final judgment the account filed.

It appears from the record that the proceeds of the sale of the property, sold under order of court to pay debts, amounted to $62,-000. There was immovable property sold to satisfy special mortgage debts under executory process, and there are other facts showing that the property in the succession amounted apparently to say $90,-000. But the attorney’s fees are not based exclusively on the amount of the inventory. If this were so the fee would be restricted to commissions on the amount of the property in the inventory actually administered.

Mrs. Henry was infirm and unable to give personal attention to the business of the succession. The attorneys were compelled to visit her residence to transact business, and made some fifty visits to her. While the litigation in settling the succession was not difficult or intricate, yet there was much done outside the court room which involved great responsibility and required time, skill and judgment. Their time was also occupied in investigating the affairs of the John Henry Shoe Company, which from the testimony of one of the wit' nesses, a prominent attorney, who also had his attention directed to the affairs of that company, required considerable time, labor and skill.

The Messrs. Gilmore gave a detailed account of their services. Two prominent members of the bar who heard their statement, and the judge before whom all the proceedings were conducted, agree that their services were worth $5000.

The fee charged is to be in full for all services’rendered, and the account, although a provisional one, is to be considered final.

There were seven pieces of immovable property in the succession, each burdened with a special mortgage.

The personal property was insignificant in value when compared to the value of the immovable property. All was sold to pay debts. In the account the privileged claims are stated, and the executor says in the same, “ all the above privileged claims to be paid in full out of the proceeds of the sale of furniture (being the only personal property upon which anything was realized), and by contribution of junior mortgages held by the Whitney National Bank.”

The Whitney Bank held the junior mortgage of the several mortgages resting separately on each piece of property, and was the second mortgage on the Carondelet street property.

It is contended by opponent that in selling assets of a succession each asset should be specially charged with its own cost of sale. We have been referred by opponents’ counsel to Art. 3262 of the Civil Code as governing this case. But that article has reference only to the privilege resulting from the care and the preservation of the property, which yields only to that for the charges on the sale of the thing preserved.

Art. 3269, Civil Code, prescribes the manner in which mortgaged property shall be discussed to pay general privileges, when contribution must be made to supply the deficiency from the sale of movable property. No distinction is made in the Civil Code, because each piece of property is affected by a mortgage that does not encumber another.

The privileges which embrace both movable and immovable property must be paid out of the proceeds of the sale of the latter when there is a want of sufficient funds from the sale of the former. C. O. 3253.

It is true that the property, and not the mortgage creditor, owes the contribution. But the Civil Code, Art. 3269, provides that the immovable on which the “ least ancient” mortgage rests shall make the contribution, and when there are two or more mortgages on this piece of property of equal dignity they shall pay pro rata.

These general principles affect all the property of the succession and are superior to mortgage debts.

The mortgage rights were acquired with the general privileges in existence, to be enforced when all the debtor’s property should be made subject to the payment of all his debts. It is then but just and equitable that, when the immovables are required to make the contribution, those burdened with the youngest mortgages should be made to do so. When the senior mortgage was placed on a specified piece of property the other immovable property of the debtor was subject to the contribution. If afterward affected by a mortgage, it was so affected with the privilege resting upon it, and there is, therefore, no injustice in requiring this property to make the contribution.

How proceeds of mortgaged property, whether there are one or several mortgaged immovables, shall contribute to the payment of the privileged debts in the order in which the property was mortgaged, commencing with the youngest and extending to the oldest, has been repeatedly judicially determined, and is no longer a debatable question. August Devron vs. Creditors, 11 An. 482; Sue. O’Laughlin, 18 An. 142; Suc. Hantan, 32 An. 54; Deverges vs. Creditors, 18 An. 169; Suc. Rousseau, 23 An. 2.

Judgment affirmed.


author: Fenner, J.

text:
    No. 11,098.
    Mrs. S. Covas et al. vs. G. E. Bertoulin et als.
    The execution of competent orders and decrees of courts is not to be preven ted by the death of the oflicer appointed to execute them. When an auctioneer who has been appointed to make a judicial sale has made the adjudication and executed liis proces verbal of sale.and has died before passing the act of sale, the court may appoint a new auctioneer to complete the execution of its decree. Such power is conferred by Art. 130 O. 1\ and Art. 21 O. C., independently of any special statute.

      rom the Civil District Court for the Parish of Orleans.

      Henry Denis for Plaintiffs and Appellees.

      White, Parlange & Saunders and Parrar, Jonas & Kruttsehnitt for Defendants and Appellants.
   The opinion of the court was delivered by

Fenner, J.

Under a judgment of partition rendered in this case, the court ordered the property to be sold at public auction by N. J. Hoey, auctioneer. The sale was regularly made and the proces verbal thereof, in due form, was made and signed by the auctioneer. The adjudicatees refusing to comply, a rule was taken to compel compliance, resulting in a judgment to that effect, which, on appeal to this court, was affirmed.

In the meantime Hoey, the auctioneer, had died, and there was no one authorized to pass the act of sale, which in this case was necessary, because under the terms of the adjudication the adjudicatees were given the option of paying one-third or more of their bid in cash and the balance on terms of credit, and a further act was essential to define the terms as fixed under the exercise of this option.

A rule was therefore taken, contradictorily with the adjudicatees, to show cause why another auctioneer should not be appointed to sign the act of sale and receive the price.

The court rendered judgment making the rule absolute and appointing a new auctioneer to complete the sale, from which judgment the present appeal is taken.

The Legislature has specially provided that where a sheriff shall have adjudicated any real estate to any purchaser by virtue of a writ, and said sheriff shall die, resign or be removed from office without having passed an act of sale to said purchaser, it shall be lawful and the duty of his successor in office to pass such act of sale and to have the same recorded as directed by law.” Rev. Stat., Sec. 3585. This statute was only passed in 1867. Acts 1867, p. 138. We do not regard it as enunciating any new principle of law, but simply as enacted ex abundante cautela to prevent controversies. It was always the law that official trusts of a sheriff passed to his successor in office. Bradley vs. Frellsen, 10 An. 310; State ex. rel. Morgan vs. Judge, 11 An. 79; Bell vs. Keefe, 12 An. 340.

It is true there is no statute covering the like ease of auctioneers, but the reason and necessity are the same. We think the Articles 130 of the Code of Practice and 21 of the Civil Code are ample to confer upon courts the power necessary to complete the execution of their orders which has been interrupted by the death of the officer appointed to execute them. The court was fully justified in appointing a new officer to complete the execution of its order.

Judgment affirmed.