author: Breaux, J. Watkins, J.

text:
    No. 11,361.
    Citizens Bank vs. Albert C. Janin. Third National Bank of New York, Intervenor.
    Tlie plaintiff, a judgment creditor of the defendant, had the steamboat Uinta seized.
    The defendant had pledged it to the Third. National Bank of New York, but remained in possession for his own account, and never completed the pledge by an actual delivery to the pledgee.
    The act of pledge was drawn up in the common law form, and was intended to operate as a chattel mortgage.
    It contains, as to the form of the act, the essentials of an act of pledge.
    The Third National Bank, as pledgee, claimed the proceeds of the sale. The property, when it was seized, was in the possession of the sub-tenant.
    It is not proved that plaintiff colluded with the defendant, and thereby gained an improper advantage.
    Pledge is not made perfect by the consent of the parties; it requires absolute possession. The alleged pledgee never was in possession during the tenure of the defendant.
    It (the Third National) could not obtain possession through the agency of the sub-lessee, who held possession for his lessor, the defendant.
    A pledge can not be made perfect by the sub-lessee’s delivery of possession without the consent of his lessor.
    The obligation of the lessor to account for the property and whatever revenues were realized therefrom, binding between him and his creditor, the Third National Bank, the property not having been delivered, did not affect his other creditors, who could seize the property in his possession, or in that of his sub -lessee, who held possession for his lessor.
    APPEAL from the Twenty-second Judicial District Court, Parish of St. Bernard. Livaudais, J,

      Henry C, Miller and Branch K. Miller for Plaintiff and Appellee:
    The Third National Bank of New York is in this cause as a third opponent, claiming to be a creditor of the defendant for a large amount, asserting a chattel mortgage on the dredge Kinta, executed in February, 1890, to secure the indebtedness, and alleging that it, the opponent, was in possession of the dredge as pledgee.
    From 1890, when these pecuniary transactions commenced, down to the fall of 1892, there is a mass of correspondence between the Third National Bank and Janin. In these letters the bank treats the Kinta as its property, or at least as pledged to the bank. Janin, the debtor, deals with the bank in the same spirit.

      This whole correspondence shows that Janin, the debtor, was at all times in actual possession of the Kinta, though speaking of his possession as held by the bank. No greater effect can be claimed of all or any of these letters.
    An instrument called a chattel mortgage, executed in a common law State, purporting to sell movable property for a nominal consideration, but really designed to be a security for payment of a debt, will not be treated here as a sale, because there is neither price or consent; nor will it avail as a mortgage, because under our law movables can not be mortgaged. 1 N. S. 528; 4 An. 71; 12 An, 489; Civil Code, Art. 3281.
    If this chattel mortgage is sought to be enforced here as a pledge, it is indispensable that the property, the subject of the mortgage, be placed in possession of the creditor, or that of a third person holding for the creditor, and agreed on by the debtor and creditor. Civil Code, Arts. 3133, 3152, 3162. De Loach vs. Jones, 18 La. 453; 8 Martin, 57; 7 An. 221; 33 An. 973; 39 An. 567.
    There can be no pledge if the property is left in possession of the debtor, even if it is understood he holds for the creditor. The possession under the pledge must be in the creditor, or a third person agreed on by the parties. Civil Code, Arts. 3133, 3152; 3162; Geddes vs. Bennett, 6 An. 516. ■

      Farrar, Jonas & Kruttschniit Attorneys for Third National Bank of New York, Intervenor and Opponent, Appellant:
    As security for advances, in February, 1890, the defendant pledged to the intervenor and opponent the dredgeboat Knita, several other small boats, and a saw-mill situated in the parish of St. Bernard. This pledge was executed in New York, and under the laws of that State was placed in the form of a chattel mortgage. It was never recorded in this State as such, and no attempt was ever made to execute it as such, and it is sued upon in this case, not as a chattel mortgage, but as an act of pledge.
    Both parties, in writing, many times subsequent to the execution of this document, have referred to it and spoken of it as a pledge, and the testimony of the president of the bank, and the letters of Janin, show that it was intended by them, at that time, to be a pledge. The bank advanced the money, as it had agreed to do, and Janin was left in possession of the property pledged as the agent of the bank, he acknowledging himself to be such agent both in writing to the bank and verbally to the counsel of the bank.
    A contract of pledge, intended by the parties to be a pledge, executed in New York, in the form of a chattel mortgage on property situated in Louisiana, and propounded as a pledge, will be enforced as’such in Louisiana. Oivil Code, Art. 10; Code of Practice, Art. 13; 3 Martin, 66 and 582; 8 Martin, 132; 2 N. S. 93; 4 N. S. 1; 5 N. S. 587; 11 La. 477; 19 La. 216; 8 Rob. 407; 13 An. 117; Miller vs. Shotwell, 38 An. 890; 8 N. S. 34; 11 Martin, 23 and 730; 2 An. 774.
    The pledge is valid where the debtor himself is in precarious possession as trustee ad hoc. Conger vs. City, 32 An. 1252; Weems vs. Delta Moss Co., 33 An. 973; Jacquet vs. Creditors, 38 An. 863.
    Where a debtor is trustee ad hoc, and makes a lease of the thing, without knowledge of the principal, the latter, when informed of the lease, may ratify it for his own account; and if the lessee consents to attorn to the principal, the lessee’s possession is thereafter, as regards third persons, the possession of the principal.
    The fraudulent conduct of the trustee ad hoc can not be availed of by a third person with knowledge of the facts.
    Same counsel, on application for a rehearing, cite: Watteau vs. Fenwick, Wills, J., Coleridge, O. J., concurring, Law Report Q. B., Div. 1893, Yol. 1, p. 346.

      Thos. J. Semmes against the application:
    The case from Q. B., Watteau vs. Fenwick, cited by counsel, merely decides that where the business of a principal is conducted by a manager in the name of the manager, persons who deal with the manager supposing him to be the owner of the business, upon discovering the real owner of the business can hold him liable for the debts contracted by the manager in the course of the business, although such debts were contracted in violation of the secret instructions of the principal.

      The New York bank here is not the owner of the property leased, and it had no power to make a lease; indeed, it persistently refused to give its consent to any lease whatever.
    It is to be noticed that the chattel mortgage executed 24th February, 1890, contemplates that the debtor shall remain in possession until default is made in paying the debt, and then it authorizes the creditor to enter upon and take possession of the property and sell it.

      So it appears that possession was postponed by agreement to a future day; the instrument promised to give possession in futuro. Therefore, the possession is one thing and the right to obtain it is another.
   The opinion of the court was delivered by

Breaux, J.

The Third National Bank of New York advanced a large amount to the St. Louis, New Orleans and Ocean Canal and Transportation Co.; the payment of which the defendant undertook to secure by executing a chattel mortgage in New York of property in Louisiana.

The Citizens Bank, another creditor of the defendant, having obtained a judgment, seized the property and had it sold.

The proceeds are claimed by the Third National Bank of New York.

This bank alleged, in its opposition claiming the proceeds, that the chattel mortgage was in effect a pledge, and that it was in possession of the property as pledgee.

At a time subsequent to the date of the “ chattel mortgage ” the defendant executed another obligation for a larger amount, in which the property described in the deed of mortgage is referred to as having been pledged to the opponent bank of New York.

The Citizens Bank denied that opponent had a pledge; because it contends the opponent had no possession of the property pledged.

The issue involves the possession of the pledgee vel non.

The District Court dismissed the opposition.

The opponent appeals.

The correspondence between the defendant and the opponent discloses that the defendant acknowledged that he was the agent of the “Third National Bank,” and expressed himself as quite willing to hold the property as agent for the bank; to lease it and pay that bank the rental, less the costs and expenses of operation.

In an interview with opponent’s counsel it is proved that counsel said to the defendant, Janin, that there were three ways of securing their client.

One of them was to sell the property.

Another was to continue in possession as the agent and attorney of the bank, their client.

The last was that delivery of the property be made to them.

The defendant declined to accede to the first and last propositions, giving as reason that he was unwilling to sell; that delivery of the property to others would occasion expense he was anxious to avoid, but he consented to continue in the possession of the property as agent for the bank; to lease it and account to the pledgee, the bank, for the proceeds.

Counsel for the opponent informed him that it would be satisfactory to them and to their client.

He at one time sought to lease the property from the pledgee, at a rental of one thousand five hundred dollars per year.

The bank was willing to accept the proposal, but required that the contract of lease be submitted to their counsel for their examination and approval.

The defendant did not comply with opponent’s desire in this respect.

Shortly after he made a lease of the boat for five hundred dollars per month, but conveyed no knowledge of this lease to the bank or its counsel.

Two days prior to the expiration of the second month of this lease he inclosed a draft to his creditor, the Third National Bank, for one hundred and twenty-five dollars, and advised its president that it was for one month’s rent of the dredgeboat.

The draft was returned, and he was informed that the bank would not accept a lease without the approval of counsel.

The defendant wrote to the president of the bank that he had received the draft on his return from the interior of the State, where, he stated, the property was; that he intended to use the amount of the draft in paying a portion of the boat’s liabilities; that he would ■devote the most of his time daring the next few months in efforts to pay all claims on the property, provide a new crane, new chains and other articles needed, and pay the bank one hundred and twenty-five dollars per month.

The first lease by defendant to O. S. Burdette, of the property, was transferred by the latter to J. B. Camors, who, with defendant’s consent, became lessee. The latter informed the counsel of the Third National Bank that he was renting the property from the defendant at a rental of five hundred dollars per month.

On December 22, 1892, i. e. immediately after having received the information-, counsel notified the lessee, Camors, that the property leased to him by the defendant Janin belonged to the Third National Bank; that it had been transferred to that bank as security for a large sum of money due by Janin.

They also informed him that the debtor, Janin, was left in possession of the boat as the agent of the bank, and that his possession was precarious, and subject to be terminated at will; that they had informed Janin that his custody of the property as the agent of the bank was terminated, and that the bank ratified for its own account the lease made to him, and directed him to retain possession under the lease as the agent of their client, and pay the rental to them.

The lessee informed the defendant, his lessor, of the notice received from local counsel.

He thereafter consented to hold for the Third National Bank, as its lessee.

The property was seized at the instance of the Citizens Bank on the 6th day of January, 1893, and subsequently sold.

Counsel for intervenor called on the president of that bank, and complained of the seizure and informed him that their client was in possession.

The attorney of the Citizens Bank advised the release of the seizure.

The president persisted in maintaining it. The attorney testifies that he was informed by the president of conflicting claims to the property, and that as he was adverse to the seizure of steamboats by banks when there were claims by third persons, he stated that the bank would release the seizure; that at the time he was not advised of the claim of the Third National Bank. He states it as his impression that the president of the Citizens Bank received his information that the boat was subject to seizure from the defendant; that his communications were not very free in reference to the transactions between him and the defendant.

It is admitted that the Kinta, the property claimed to have been pledged, was a steam shovel, movable property, and not a sea vessel; that it was not registered or licensed under any laws of the United States or of the State, being nothing but a steam spade or floating steam shovel.

Common Law Chattel Mortgage.

The argument for opponent, the New York bank, is that the contract was one of pledge, intended to secure the creditor’s claim by pledging property in Louisiana under the form of a common law chattel mortgage.

That the chattel mortgage did not, as it purports on its face, divest the owner of his property, but that, in so far as it related to form, it contained all the elements of a pledge, and as such was enforceable in Louisiana.

This was not controverted by plaintiff’s counsel, who contended that the pledgee never was in possession, and that, therefore, there was no pledge which could be enforced as such.

The effect to be given to acts such as the one relied upon in this case as being in effect a pledge, has received this Court’s interpretation in several decisions.

It has never been held that they effect a translation of the property ; it not being the intention of the parties to sell the property, though the word “ sell ” or its equivalent is used in the common law deed of mortgage.

The act is given effect as a mortgage if it contains the essentials of a mortgage or of a pledge if it contains as to form the requirements of an act of pledge.

This view has received the sanction of this Court in several decisions. Miller vs. Shotwell, 38 An. 891.

POSSESSION.

The privilege of pledge is subject to unbending conditions.

There must be an actual delivery, in order that those who transact with the pledgor may know that the property is held in pledge.

There should not be any good reason to consider the thing pledged in the possession of the pledgor for his account and benefit.

The possession of the pledgee should be real and effective at all times; it must be apparent and well known.

As between the parties, consent is sufficient to transfer property; as to third persons, there must be delivery.

If there has been no delivery, the innocent buyer from the pledgor of the thing can not be evicted.

He could not be aware of the adverse right in the property not delivered, and in regard to which there is no contract, save that known only to the pledgor and ths pledgee.

Were it otherwise, it would frequently be impossible to buy with any safety that the title to the movable is complete and legal. “It is evident that if the pledge of movables could, without delivery, have effect in regard to third persons it would be the source of great fraud and deception. When the debtor is obliged to surrender possession he can not deceive third parties dealing with him by keeping possession of the pledged articles as part of his estate, and getting credit thereby.” Dalloz Nant. 313.

Possession is essential to complete a real right to movables.

The pledge withdraws the thing from the hands of the debtor and sets it aside as property subject to a pledgee’s privilege.

Possession is the most sure foundation and the most striking index of the privilege. Oasaregis says, preference is accorded to a pledgee on the thing pledged, because he has it in his hands.

This possession should not be equivocal, and so placed as to deceive other creditors and lead them to believe that the debtor always continued the possessor.

With reference to the pledgor’s act, possible without affecting the possession and the pledgee’s right, Troplong illustrates by saying, that merchandise in the creditor’s warehouse may need the care of the debtor; that he may give his attention to it without destroying the right of pledge.

Third persons can not be deceived by this case, for the creditor remains in possession of the property in his own storehouse.

The principle is laid down by the French authorities that “whenever the assistance of the debtor is necessary to the accomplishment of the object of the pledge, it ought to be permitted, provided always that it does not disturb the possession of the creditor in any respect.” Casey vs. Cavaroc, 96 U. S. 484.

The learned judge in the case just cited says: “ That it seems to be evident that in the French law, at least, the text of which, in this regard, is the same as that of Louisiana, a delivery by the owner of securities by way of pledges, followed by a return thereof to him, for the purpose of enabling him to collect them and apply the money to his own use, or substituting others in their stead, and with general liberty of substitution, and to appear as the owner and possessor thereof in his dealing with others (the title of the securities not being transferred do the creditors), is not such a delivery of possession as is necessary to establish the privilege due to a pledge as to third persons. It would be contrary to the very letter of the law to allow such a transaction to have that effect. It would not be mere evidence of fraud, which might be rebutted by counter evidence; but it would be contrary to the rule of law adopted to prevent fraud. In other words, as to third persons, it would not be a pledge at all within the meaning and requirements of the law. We think that the decisions in Louisiana lead to the same conclusion.”

In support of the proposition of opponent that the right of pledge is complete where the debtor himself is in the precarious possession of the thing pledged, as trustee ad hoc, we are referred by opponent’s counsel to the cases of Conger vs. City, 32 An. 1252; Weems vs. Delta Moss Co., 33 An. 973; Jacquet vs. Creditors, 38 An. 863.

In the first case, the pledge was statutory; moreover, the dictum had no reference to the conclusion reached, for it was decided that the pledge had been destroyed by a sale of the property.

In the second case cited, the property had been placed in the possession of an agent.

The court said in that ease: ‘ ‘ Under the provisions of Art. 3162, which allows the possession of the pledgee to be vested in a third person, agreed upon by the parties, we find that these transactions show such a possession in the pledge as the law requires, even under a vigorous construction of its provisions.”

In the last case cited, the property was placed in the hands of an agent, who held the k6y of the building in which it was.

This agent testified that he exiercised control over the property for about ten months, and took care of it and cleaned the machinery. He was paid for his services as keeper. With his permission, and that of the pledgee, the pledgors used the machinery at times.

The keeper at all times, however, retained possession.'

Only in the last case cited there was any reference made to the use of the property by the pledgor.

The occasional use of the property pledged, with the consent of the pledgee, did not dispossess the keeper, who remained in charge, as required (said the court) by Art. 3162 of the Civil Code.

The possesssion of a creditor is not inconsistent with the open well-known co-operation of the pledgor, when the latter’s co-operation is not incompatible with the idea of the possession of the creditor.

In the case at bar, while the defendant Janin was in possession no third person suspected that he was operating the boat for any one’s account save his own.

When it is considered (that the boat was at some distance, in charge of the owner and pledgor, who informed no one of his agency; that it had been leased by him and the rents collected for his account, it becomes manifest that the pledgee, during the pledgor’s active operations, was not in possession.

THE ILLEGAL AND IMPROPER UNDERSTANDING CHARGED.

An understanding between the plaintiff and the defendant, such as charged by the opponent, would operate as a bar to considering the plaintiff as a third person.

If the third person conspired with a pledgor to obtain an advantage, he would not be in the attitude of a person not interested and without notice.

The only testimony introduced was that of plaintiff’s attorney, who gave it as a mere impression that the president of the Citizens Bank obtained his information from the defendant.

A similar question to that presented in the case at bar, at this point, received consideration in the case of Rawlins et al. vs. Sheriff et al., 45 An. 67.

This Court said, in that case, “If they had legal claims — they (the creditors) were entitled to proceed, and were not prejudiced by the mere circumstance that their information came from the debtor.”

In the case at bar, it is not positively shown by whom the creditor was notified of the possibility of making a valid seizure of the property of the pledgor.

The burden of proof to establish collusion between the common debtor and the president of the plaintiff bank rested with the opponent.

“The party having the burden is the party who, if no proof is offered, will be defeated in the suit.”

The fact that the plaintiff’s president did not testify did not have the effect of shifting the burden of proof, and give rise to a presump-- ■ tion of knowledge on his part of the obligation of the defendant to the opponent.

The plaintiff was a third person, against whom it is not shown that it had knowledge of any pledge on the part of the defendant to the opponent prior to the last lessee’s possession, Oamors.

As against Janin the bank had an absolute right to seize the property in his possession or in the possession of his lessee.

AS SUBRÓGEE OE LAST LESSEE IS THE THIRD NATIONAL BANK A PLEDGEE?

This brings us to the consideration of the last point involved in the case.

The opponent, the New York bank, having recognized the lease to Oamors and having through him obtained the possession of the boat it held when the seizure was levied, the important question is presented as to whether it was legally possible for this creditor to obtain possession and control, through Oamors, the lessee of Janin, of property that had been pledged to it.

The principle is well settled that the title of the lessee is in fact the title of the lessor.

He comes in by virtue of the lease, he holds by virtue of the lease, and upon it he relies to maintain and justify his possession. He acknowledges thereby the title of the lessor, and he can not invoke the title of another and change the nature of his possession.

He is not permitted to deny that the lessor had a title to possession at the time that he, the lessee, came into possession. 3 Am. and Eng. Ency. 188.

The law regarding pledge is plain.

“It is essential to the contract, of pledge that the creditor be put in possession of the thing given to him in pledge, and consequently that actual delivery of it be made to him, unless he has possession of it already by some other right.”

Pledge is not made perfect by the consent of the parties. It requires absolute possession.

As to creditors the pledge was not complete when Janin was in possession.

The property was subject to seizure. The lessee, at the end of the lease, owed possession to his lessor, and not to his creditors. They had no claims upon him. Let us assume that the Third National Bank called on Oamors to deliver the property and that he refused to surrender possession.

The Third National never having been in possession, Camors had the absolute right to decline to surrender his possession.

Not having the authority to compel delivery, they were equally without authority to obtain possession by virtue of a contract with the lessee.

Delivery of possession to the pledgee must be given by the pledgor, and not by his lessee.

The obligation to deliver devolved upon the debtor, and not upon the one who held under a lease.

As between Janin and the National Bank, the pledge and its fruits were due by the former to the latter.

This indebtedness could become secured as intended by the creditor only after asserting the right contradictorily with the debtor.

Third persons hav e rights distinct from those of the pledgor.

As to them, there must be actual delivery and no control retained of the property by the owner for his personal account.

In order that there may be no question about the pledge, there must be absolute compliance in this respect.

La loi, says Baudrié-Laeantinerie, se montre pleine de solicitude pour les interets des tiers auxquels ce privilege pourra prejudicier• Vol. S, p. 599.

The property must be placed and remain in the possession of the creditor, or of a third person agreed upon by the parties.

It was not in possession of the creditor, nor in possession of a third person agreed upon by the parties; it was therefore subject to seizure and sale to pay and satisfy other indebtedness of the debtor.

Judgment affirmed at appellants’ costs.

Application fob Rehearing.

Watkins, J.

Third opponent resists a levy by the Citizens Bank under ft. fa. against the defendant on the following grounds, viz.:

That at the time of the seizure the dredgeboat was in its possession, through its tenant, J. B. Camors, who was using and operating the same for account and benefit of the opponent under a lease.

That at the time of said levy under fi. fa. the dredgeboat was in the opponent’s possession, and that he held said property as a pledge to secure a debt of eight thousand four hundred and seven dollars and seventy-three cents, by virtue of a written act of pledge signed by the defendant in execution, of date February 24, 1890, under which the property was delivered; and that opponent has held it in actual possession since that date. That, at various times since, defendant has recognized his rights thereunder.

The answer of the defendant is a denial that the property seized was at date of seizure, or at any other time, in third opponent’s possession, through Camors or any one else — the fact being that the boat was, at time of seizure, in the possession of the defendant, Janin, through Camors, under contract of lease, signed by the defendant as owner; and said boat had been continuously and uninterruptedly in defendant’s possession as owner since it was built in 1889.

The answer of the Citizens Bank was that the third opponent had no pledge or possession of the property seized, etc.

On the trial there was a judgment dismissing the third opposition and sustaining the seizure of the Citizens Bank, and third opponent has appealed.

Our opinion and decree affirm the judgment.

The application for rehearing goes upon the following grounds, to-wit:

1. That the Court erred in holding that the possession of Camors, at the time of the seizure, was not in the possession of the Third National Bank of New York.

2. That the Court erred in holding that the possession of Camors could not be made the possession of the bank.

3. That the Court erred in holding that Camors had the absolute right to decline to surrender his possession.

4. That the Court erred in holding that the intervenor had no authority to compel delivery of the boat to Camors.

5. That the Court erred in holding that the obligation to deliver devolved on the debtor, and not on Camors holding the lease.

6. That the Court erred in refusing to hold that the Citizens Bank was bound by the same estoppels Janin was bound by.

On this application the argument of third opponent is that (1) as the court found as a fact, that Janin had possession of the boat as the agent and representative of the bank under his promise to rent the boat and account for the proceeds to the bank, any lease he made must have been, in law, for the account of the bank; (2) that as the court did find that Janin did lease the boat, and so informed the bank, this finding shows that Janin acknowledged the legal duty which was upon him, and that the lease was for the account of the bank.

Or in other words that while in point of fact the lease was from Janin to Camors, Janin was the agent of the bank as an undisclosed principal; and all that was necessary to put the contract'in shape was that the bank should disclose to Camors, the lessee, that it was principal instead of Janin, and have Camors recognize it (the bank) to put Camors in possession for the bank; and in this manner continue in force and efficacy the act of pledge from Janin to the bank, and defeat a seizure of the boat by one of Janin’s creditors.

It is further claimed that this course was pursued by the bank, and due notice was given to Camors, and same was accepted by him and acquiesced in by Janin. And counsel’s argument is further that the seizing creditor of Janin is bound by the same estoppel that Janin is, and concluded thereby.

The theory of our opinion is that, while it is true that Janin acknowledged himself willing to hold the boat, as the agent of the bank, and account to the bank for the rentals, yet shortly afterward, he made a lease to Burdette, who transferred it to Camors for five hundred dollars per month, yet did not report that fact to the bank.

That the latter, Camors, informed counsel for the bank, that he had leased from the defendant at five hundred dollars per month; and counsel informed him that the boat belonged to the third opponent as security for a debt; and that the boat had been left in Janin’s hands, as agent of the bank; and that his possession was precarious, subject to termination at will. He further stated to him that he had informed Janin that his custody was terminated, and that the bank ratified the lease for its own account and dirfccted him to retain possession for the bank. The lessee gave the defendant notice of the information he had received; and he thereupon consented to hold for the bank.

It is conceded that the defendant, primarily, gave third opponents a chattel mortgage on the property, having the effect of a pledge on the property.

On this state of facts the opinion holds that opponents’ possession of the thing pledged was not real, actual and effectual at all times, or in other words there was nothing to advise the Citizens Bank of Oamors holding, as pledgee of the bank, because his contract of lease from Janin showed that the latter was the owner, entitling them to seize; that there is nothing in the transaction between Janin and Burdette, nor in that between Burdette and Oamors, to put the Citizens Bank on notice of the pledge of Janin to third opponent, nor that the bank was an undisclosed principal in the contract of lease.

Olaim is not made in this ease that the bank and Janin had agreed upon a third person to hold the property; and in that view the opinion concurs. And our opinion still is that third opponent never had physical, actual possession of the thing pledged. But it was always in the actual possession of Janin and his lessee; and while perfectly good as between the parties, it had no effect as to third persons and seizing creditors of Janin.

Rehearing refused.

Miller, J., recused.


source: Caselaw Access Project

author: Breaux, J. Breaux, J.

license: Public Domain

text:
    No. 11,538.
    State of Louisiana vs. Cora West et al.
    Re-examination or Juror on His Voie Dire, Not Previously Declared Competent. — A juror Having been examined on bis voir dire, was accepted by tbe State and by tbe defendant.
    The juror, not yet sworn, informed the court o£ his disqualification, in regard to which he had not been questioned. .
    He was re-examined only as to the disqualification disclosed. It was proved and the juror was ordered to stand aside.
    It does not appear that the trial court exceeded the bounds of the discretion with which it is invested, in having ordered this juror to stand aside; moreover, it is not shown that the defendant exhausted her peremptory challenges. There was therefore no prejudicial error committed subject to review.
    Fixed Opinion of a Juror. — A juror having testified on his voir dire that he had reached a conclusion as to the guilt or innocence of the accused, unalterable by any testimony, was excluded from the jury.
    He had been examined by the District Attorney.
    Counsel for defendant asked to question the juror, which was refused.

      It is not shown that the juror had not been sufficiently examined to establish his-prejudgment,nor that in consequence defendant’s peremptory challenges were exhausted.
    To establish the bawdy character of the house and its bad reputation, the evidence o£ the persons frequenting it was admissible.
    Pro Of? Ol? Reputation, with Other Pacts and Circumstances. — 1The bawdy character of the house may be shown by its general reputation (and the bad reputation of the persons frequenting the house), with other evidence leading to-that conclusion.
    On application eor Rehearing.
    The Charge oethe Court to the Jury. — The trial judge, in his statement in the bill, says: “ that he had instructed the jury on the subjects in regard to which special instruction was ashed by the defendant.” There is no record of the instruction given.
    The charge is presumed to have been correct, in the absence of any exception or of a request to instruct the jury in writing.
    Moreover, common reputation as to the character of the defendant, and of the house which she kept, was admissible. It was left to the jury to determine as-to the weight of this and other evidence.
    APPEAL from the Eighteenth District Court, Parish of Lafourche. Caillouel, J.

      M. J. Cunningham, Attorney General, and B. F. Winchester, District Attorney, for the State.

      Clay Knobloch & Son Attorneys for Defendant and Appellant:
    In a criminal case a juryman examined on his voir dire by the State, and tendered to and accepted by the accused as a competent juror, should not be further questioned by the State with a view to challenge him for cause. 5 An. 820.
    Witness should not be allowed to testify to opinion, save in rare and exceptional cases; this case must be classed among those where the rule applies that witnesses can only testify to facts, and that the jury alone can form opinion. 87 An. 268; 38 An. 450.
    The State not objecting to a question propounded on cross-examination to a State witness to show bias, prejudice and feeling, the witness alone objecting to answer, on no legal, but on sole ground that the question was not a fair one, and the court not being called upon to rule in the matter, but volunteering to rule that the question was not relevant and should not be, as it was not answered by the witness, there is error in the ruling. Great latitude is permitted on cross-examination in criminal cases to probe the feelings, prejudices and motives of a State witness. Questions to that end are permissible, and may be repeated in various forms when it becomes necessary to test the fairness and impartiality of a witness. 38 An. 153; 37 An. 78.
    In a criminal case where the State introduces three witnesses to testify to general reputation, and two to testify as to particular facts from personal knowledge, it is error for the trial judge to refuse to charge that evidence from personal knowledge, although of negative nature, outweighs evidence as to general reputation.
    Evidence of a negative nature may, under particular circumstances, not only be equal but superior to positive evidence. 36 An. 84.
    Where the defendant is charged with keeping a disorderly brothel, evidence of general reputation is not admissible, it being necessary to sustain the indictment that particular facts which constitute the offence should be proved. Wharton on American Criminal Law, Sec. 668.
   The opinion of the court was delivered by

Breaux, J.

The defendant was convicted of keeping a disorderly brothel and was sentenced to one month in parish prison, and to pay a fine of three hundred and one dollars, and in default of paying the fine to two months additional in the parish jail. From this sentence she appeals.

She relies for reversal of the verdict and sentence on a number of bills of exceptions, reserved to the ruling of the trial judge.

EXAMINATION ON VOIR DIRE OF JUROR TENDERED.

The court’s recitals in bill of exceptions No. 1, to the exclusion of juror, are that the juror had been accepted by the State without having been interrogated as to any opinion about the case.

He had been accepted by the defendant, but had not yet been sworn. The unsworn juror at that time informed the court that he had not been asked if he had formed an opinion.

The District Attorney applied for permission to reopen the examination, to which counsel for the defendant objected on the ground that it was too late, and urged that the juror should be sworn.

The bill of exceptions does not show that the juror accepted by the State and the defendant had been pronounced competent by the court, and that he had been directed to take the oath.

It is the general rule to urge all objections to a juror before he has been sworn. State vs. Diskin, 34 An. 920.

The re-examination should not be opened as a general thing after the juror has been pronounced competent and has been called to the book to be sworn. But if, prior to pronouncing him competent, the court has good reason not to be satisfied with his competency questions may be propounded by the court without thereby committing an error. The court’s attention having been called to an oversight, it directed the District Attorney to examine the juror upon the point overlooked and none' other.

This Court must presume that the trial judge properly exercised the discretion with which he is entrusted. Belt vs. The People, 97 Illinois, 466; Hendrick’s Case, 5th Leigh, 709; Wharton’s Crim. Law, 7 Ed., Sec. 3130.

NO PRE JUDICAL ERROR PROVED.

The second, third and fourth bills of exceptions were taken to the court’s rulings and refusal to permit counsel for the accused to propound questions to a juror on his voir dire.

The following is, in substance, ohe statement of the court, copied in the bills of exceptions:

That the juror answered on his voir dire that he had formed a fixed and unalterable opinion which could not be changed by any evidence.

He was challenged by the District Attorney for cause. The court sustained the challenge and ordered the juror to stand aside.

The request of the counsel for defendant was refused, the court states, for the reason that the juror on account of the bias shown by him was incompetent.

Counsel for the State and counsel for the accused should have reasonable opportunity to ask the juror such questions as may test his competency.

We would feel compelled to remand the case if the error appeared, prejudicial to the accused.

The records do not disclose that the accused had exhausted her peremptory challenges.

She, therefore, was not, because of the ruling excluding the juror, compelled to accept an objectionable juror.

She had in her control the remedy the peremptory challenge secures. Wharton Crim. L., 7 Ed., Vol. 3, Par. 3152.

Moreover such error, that is an error in a ruling rejecting a juror, is not, as a general thing, as prejudicial as an error committed in a ruling selecting a juror.

The principle is laid down always subject to the limitation that prejudicial error in an appealable case is not always subject to review. “ Where a cause has been tried by an impartial jury, although the judge, on the application of one of the parties and against the consent of the other, may have rejected a juror for a cause of questionable sufficiency, such rejection does not afford a ground of complaint if justice has been done in the premises. ’ ’ Thompson and Merriam, Sec. 271.

AN IRRESPONSIVE ANSWER.

The sixth bill of exception was taken to the court’s ruling permitting the prosecution to ask the witness the question: “ Prom the general surroundings and things seen and heard, what kind of house did he think it was?” The question did not elicit the answer sought.

The witness replied negatively. “He did not know whether it (the house) was a brothel or not’ ’ is the answer stated in the bill of exceptions. The purpose of the prosecuting officer in propounding the question was defeated by witness’ answer, and there is in consequence no issue for decision. The objection is unsupported by the facts, and therefore unfounded.

THE COURT’S DISCRETION PROPERLY EXERCISED.

A bill of exception was taken to the ruling of the court permitting the prosecuting officer to ask the sheriff, who was testifying as a witness, to give the names of persons who had spoken to him on _ the subject at issue.

It was legitimate and proper to seek information appertaining to the issues of the case and obtain the names of those who had spoken to the witness about the house kept, it was charged, by the defendant as a brothel.

IRRELEVANT QUESTION:

The eighth bill of exceptions shows the following :

That the witness is a lawyer. He testifies that the accused kept a bawdy house. He was asked to name the persons who had spoken to Mm on the subject, to which he replied that he had spoken about it to the judge and other officers of the court.

The defendant, availing herself of the statement, sought to obtain from the witness an expression of opinion regarding the effect of his own utterances, in contributing to the bad reputation charged upon her.

The witness declined to answer, on the ground of the unfairness of the question propounded.

The trial judge states:

“ Before objection to answer by the witness the District Attorney suggested that the question was objectionable, but as the witness was a lawyer he left it to him- to answer or not; whereupon the witness appealed to the court, and announced he would not answer the question unless compelled to do so by the court. The court, considering the matter sought to be elicited by the question to be utterly irrelevant, ruled that the witness was not bound to answer.”

In declining to answer, the witness did not add to or detract from the effect of his testimony. Any answer responsive to the question would have been irrelevant.

We must,” says Mr. Wharton, in his book on Criminal Evidence (p. 472), again notice the important distinction between questions in chief, whose object is tojbring out facts important to the maintenance of public justice, and questions in cross-examination, whose object is merely to harass a witness.”

NO APPARENT INJUSTICE.

Counsel for the defendant also complains of the refusal of the trial judge to grant him time to write the question propounded to this witness, so that there would be no dispute about the nature of the question.

The defendant’s rights were not prejudiced by the refusal.

Had the judge a quo agreed with defendant’s counsel in the statement that the District Attorney remained silent until after the witness refused to answer and the court had ruled in the witness’ favor, the result would have been the same.

A witness may of his own motion, without the assistance of the District Attorney, provoke a ruling of the court, protecting Mm from answering a question not material to the issues involved and relating to the effect of his own utterances in establishing defendant’s reputation.

BAD REPUTATION WITH OTHER EVIDENCE ADMISSIBLE TO ESTABLISH OTHER CHARGES.

Bills of exceptions were taken to the court’s ruling in admitting testimony to establish the bad reputation of the house of the defendant.

It is not shown by the bill of exceptions that the testimony of bad reputation was the only evidence received, and that there was no ■other testimony admitted to establish the ill fame.

Reputation accompanied with other evidence, showing that the house has actually been resorted to for the purpose of prostitution, is admissible as tending to establish the offence. State vs. Mack, 41 An. 1081; Drake vs. State, 17 N. W. Reporter, 117; Wood’s Law of Nuisance, 40.

THE REQUESTED INSTRUCTION PROPERLY REFUSED.

The defendant requested the trial judge to charge that “ direct evidence is stronger and overturns evidence as to general reputation.”

This is preceded by the statement of defendant’s counsel, in the bill of exceptions, that the State examined five witnesses, three of whom testified as to the general reputation of the house, and ten of whom testified as to particular facts from personal knowledge, that the house was a beer saloon.

This statement did not receive the approval of the court a qua, whose recitals in the bill of exceptions are that the evidence of the two witnesses on the point was more in the light of negative than affirmative testimony, and that he had fully charged the jury on the subject matter.

Credibility is determined by the jury, under such instructions as may be given by the court.

The defendant was without right to instructions to the ljury that would have accentuated the difference between the testimony of two ■of the witnesses who swore to certain facts, thereby discriminating from the testimony of three witnesses who testified as to the ill fame of the house in the community.

Moreover, it was not the duty of the court to instruct the jury that evidence of general reputation was subordinate to and of no importance as compared with direct evidence.

The bill of exceptions does not establish that these witnesses were the only witnesses who testified, and that upon their testimony exclusively the case was decided.

Principles should be laid down to guide the jury in weighing testimony, but it is not incumbent upon the court to instruct the jury that testimony of certain witnesses to prove certain facts is of more weight than testimony offered to prove reputation.

The court properly declined to give the instructions tendered.

This completes the review of the proceedings, and we find no ground to set aside the verdict and sentence.

Judgment affirmed.

On Application for a Rehearing.

Breaux, J.

The defendant in her application for a rehearing, through her counsel, argues anew the different grounds previously argued.

They have been considered and passed upon in our decision.

We will nevertheless review again two of the points presented.

They are first, that the trial court erred in not instructing the jury as requested that “direct evidence is stronger and overturns evidence as to general reputation.”

The trial judge in the bill of exceptions states that he based his refusal on the fact that “ he had already previously fully instructed the .jury on the subject matter.” Considering the points presented with reference to the issues as presented by the trial judge, we do not discover that he erred in refusing to give the charge requested. The weight to, be given to the statement of facts in the bill of exceptions is well defined in a number of decisions of this Court. The trial judge certifies to the facts, and unless it is shown that they are incorrectly stated, they are considered as correctly narrated. State vs. Broussard, 39 An. 671.

Second — That particular facts constituting the offence must be proved, and “ not general reputation,” is the other instruction requested.

Mr. Woods, in his treatise on the Law of Nuisances, announces the principle of evidence on this point, as follows:

“ Mere reputation is not sufficinet, for that is often wholly unreliable and unworthy of credence; but when accompanied with evidence showing the dissolute character of the inmates and of the persons visiting them, it is admissible as tending to establish the offence ” Par. 50, Sec. 29.

In Dillon it is stated “ that the common reputation as to the character of the defendants, and of the houses which they keep, is. admissible.” Dill. Mun. Corp., Vol. 1, p. 412, note 1, 2d Ed.

In considering this point we did not feel authorized, in the absence of proof, to assume that there was evidence only of bad reputation, offered and admitted.

That portion of the charge of the trial judge narrated in the bill of' exceptions, and the finding of the jury, negative the grounds upon-which the defendant based her application for a new trial on this, point.

Defining of evidence (urged by the defendant) to make out the case (of this we have no proof) offers no ground for reversal on. appeal.

The ease comes to us as made out on testimony of reputation, accompanied, we must presume, with other evidence establishing guilt.

The rehearing is refused.


author: Breaux, J.

text:
    No. 11,447.
    Succession of Mrs. Harriet A. Lange.
    The purchaser refused to accept the title tendered to him as adjudlcatee, on the ground that the minor heirs were the owners of the property, and not the succession of the de mjm.

    That in consequence their property can not he sold without the exact observance, of the formalities provided for the sale of minors’ property.
    PROPERTY OX? A SUCCESSION SOLD TO PAY DEBTS.
    The Court holds that the property belonged to the succession, and not to the minors, who only had a residuary interest, and that, as property of the succession, it could be sold by the administrator to pay the debts of the succession.
    Where a sale is made, for the payment of debts, of property belonging to a succession in which minors have an interest, it is not necessary to observe the formalities required by law for the alienation of minors’ property, the interests of. the minors being residuary.
    THE AMOUNT OB A TUTOR’S BOND.
    The Court ex officio holds, further, that though the property was sold in the succession for the payment of debts, and without the formality for the alienation of minors’ property, the tutor, who is to receive the price, in the interest of all parties concerned, must furnish bond in the amount required by law.
    APPEAL from the Civil District Court, Parish of Orleans. Rightor, J.

      Dinkelspiel & Hart Attorneys for Administrator and Appellee:
    The proceedings for the sale of the property at private sale to effect the partition, were strictly in accordance with law, as approved by this Court, in the cases of Durruty vs. Musacchia, 42 An. 357; and Bruhn vs. Firemen’s Building Association, 42 An. 481.

      Felix J. Dreyfous and B. McGloskey Attorneys for Defendant, Appellant :
    The administrator has no right to provoke a sale for the mere purpose of effecting a partition between heirs where there is no necessity thereof for the payment of ,the debts. Hebert vs. Hebert, 22 An. 309; Hotchkiss vs. Dodd, 13 La. 86; Pitkin vs. Thompson, 14 La. 272; Bank vs. Delery, 2 An. 648; Succession Morgan, 12 An. 153.
    A sale of minors’ property can only be effected under the requirements of Art. 339 et seq.: (1) that a family meeting must advise the sale; (2) that the judge approve the deliberations of said family meeting; (3) that the sale be made at public auction, and (4) that the property should not be sold for less than the appraised value in the inventory. Citing also Succession of Dumestre, 40 An. 573.
   The opinion of the court was delivered by

Breaux, J.

The purchaser of a city lot and the improvements thereon appeals from a judgment condemning him to accept the title tendered.

The purchaser admits that he bought at public adjudication, but refuses to accept title on the ground that the property was vested in the children of Mrs. Harriet A. Lange as to one-half, and that the other half was burdened with a general mortgage, resulting from her qualification as tutrix.

James Wilson acquired the property on 31st of October, 1871, andied a short time after that date.

His succession was opened and Mrs. Harriet A. Wilson, his widow, was placed in possession of the property as owner of the undivided half and her children of the other half.

At a date subsequent on her petition a family meeting was held.

They, the family meeting, fixed the value of the property, assisted .by the report of experts, and recommended a private sale to effect a partition.

The proceedings of the family meeting were approved by a judgment of the court. Mrs. Harriet A. Johnson, in her individual capacity, and acting also as tutrix of her minor children, under authority ,of this judgment, sold the property at private sale to Mrs. Mary Renturia. In 1880 Mrs. Renturia sold it to Mrs. Ellen Markey,' widow of John Johnson.

After the death of Mrs. Harriet A. Johnson, who was the wife of Lange at the time of her death, Mrs. Ellen Markey, widow of John Johnson, signed a deed containing the following declaration:

“That though said purchase was made in her name, that said property then and always has belonged to Mrs. Harriet Augusta Johnson, then the widow of James Wilson and afterward wife of Henry J. Lange, and that this appearer never had any interest in, or claims to, on or against said property, but the title thereto was simply placed in her name as a matter of convenience.”

THE DECLARATIONS CONTAINED IN THE DEED OE ACKNOWLEDGMENT DO NOT AEEECT THE PRECEDING TITLE.

The title passed regularly from Mrs. Harriet A. Wilson (formerly Mrs. Johnson and subsequently Mrs. Lange) personally and as tutrix to Mrs. Renturia.

The records do not disclose any irregularity in the title from the former to the latter. It was absolutely the property she sold to Mrs. John Johnson. This authentic deed of her agent was dated the 80th of September, 1880, transferring the property. Mrs. John Johnson, for reasons not explained, in 1890, after the death of Mrs. Harriet A. Lange, placed a title of record recognizing the ownership as being in her succession.

Counsel for the defendant in rule argues that the acknowledgment of Mrs. John Johnson had the effect of reinvesting the minors with the ownership of half of the property.

Her declarations, in her deed to the succession, of themselves, without any other fact or circumstance going to show simulation and fraud in the proceedings preceding the title of Mrs. Renturia, did not have the effect of clouding the latter’s title to the property.

She, Mrs. Renturia, paid for it a full and fair consideration and sold it for a clearly expressed amount.

During ten years Mrs. Renturia was the unquestioned owner of the property.

It does not appear that her vendee had any right on the property.

She, Mrs. Renturia, was a stranger to the declaration her vendee chose to make.

Those declarations bind Mrs. John Johnson, but they have not the effect of ‘ destroying the right of her vendor, Mrs. Renturia, the former owner.

The property in the soil was in her name, and that fact must continue unaffected by any ex parte, unexplained declarations of her vendee.

The title, by the acknowledgment of Mrs. Johnson, having passed to the succession of Mrs. Harriet A. Lange, it was subject to sale for the payment of the debts of the succession.

Her heirs, the Wilson children, have no interest in the property. It was owned exclusively by the succession.

The administrator applied to sell this property to pay the debts.

The adjudicatee (defendant and appellee) has acquired title under the adjudication of property of the succession.

The property is considered as belonging to the succession and not to the minors. State vs. Judge, 17 L. 500; Succession of Ira Smith, 9 An. 107; Succession of Fluker, 32 An. 292; Towle vs. Weeks, 7 L. 312.

THE SECURITY THE TUTOR SHOULD FURNISH.

For his protection as owner as well as for the protection of the minors, we have considered all the proceedings, and to the end that the protection be complete, we notice exproprio motu, the insufficiency of the tutor’s security, in order that proper remedy may be applied.

From the records we glean that the administrator, who applied for this rule, and who is also the tutor of James Wilson’s minor children, has not, in so far as appears on the face of the papers, furnished bond as tutor in the amount required.

It was made evident in these proceedings that it was to the interest of all concerned to sell the property.

The adjudication will now be followed by a deed and the payment of the price.

Having thus affirmed the validity of the title, we feel compelled to state that the tutor must comply with the law regarding security he should furnish, before he can be permitted to receive the amount of the sale due by the adjudicatee. The tutor, in the first place, executed a tutor’s bond in the sum of one thousand dollars. This was not sufficient if the record is taken as a basis.

Subsequently he furnished a special mortgage in lieu of this bond.

The property mortgaged was appraised at two thousand five hundred dollars, being twenty-five per cent, more, it is alleged, than the amount to which these minors are entitled.

The inventories made and the facts appearing of record are proof that the security (in the present condition of affairs and the unsettled state of the rights of the minors) is not in amount twenty-five per cent, over and above their claims.

The price of the property adjudicated to the plaintiff in rule, in this case, is four thousand nine hundred and fifty dollars.

Of this amount, possibly the minors own half.

There is other property in which they have at least a residuary interest. It may be that there are debts to be deducted which will reduce their claims. Of this we have no evidence before us.

Until a satisfactory showing is made, and such security is given as will prove acceptable to the District Court, the purchase price of the property involved in this case must remain in the immediate control of that court.

We know that our learned brother of that court will bring to bear thoughtful and wise discretion to amply protect these minors.

The title in this case is not dependent upon the sufficiency of the security offered to protect the minors, for another remedy lies for the protection of the minors.

But the law is always zealous for the protection of the interests of minors, and courts are not inclined to withhold their equity powers when needful in their behalf.

In rendering judgments, conditions may be included as may be equitable to shield them, and at the same time protect those who become owners of property in which they have a residuary interest from other litigation.

The many decisions classed under the head notes Conditions of Judgment” and “Equity” by Mr. Hennen, in his digest, establish broad grounds in support of equitable principles.

They support the correctness of our conclusion in this case, in requiring ex officio that the tutor shall furnish additional security if further statements prove that the facts regarding amounts due them are as appear at this time in the record of appeal.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed, and it is further ordered that the minors’ rights be protected by inquiry in the matter of the tutor’s security, in accordance with previously expressed views, and that appellee pay the costs of appeal.


text:
    No. 11,366.
    St. Charles Street Railroad Company vs. O. A. Fairex.
    A person against Whose property a judicial mortgage was recorded acquired as forced heir an. undivided one-third in a succession. In an act of compromise she transferred her undivided one-third interest to the instituted heir and owner of the remaining two-third interest.
    The property being immovable the plaintiff, a judgment creditor, instituted the hypothecary action against the purchaser and third possessor of the undivided one-third.
    The recorded judgment against the heir affected the mortgageable property thus owned to the amount of the residmnn.

    The .property subject to the mortgage, though transferred to the third possessor by the heir, is not free from all claims of the succession if it be shown that it was affected by a mortgage at the time of the transfer, but that the instituted heir bought it as not being subject to any judicial mortgage.
    It is claimed that the heir and debtor to the plaintiff was indebted in a large amount to her late daughter, from whom she inherited.
    The compromise was made with the third possessor and only co-heir upon the basis of the alleged indebtedness of the mother and forced heir, who is plain ■ tiff’s debtor.
    The judicial mortgage creditor is not benefited by the compromise made between the forced heir and the instituted heir, nor should its interests as judicial mortgage creditor be prejudiced thereby.
    To establish the right of the judicial mortgage creditor, the amounts for which the indebted heir and judicial mortgage debtor is accountable should be deducted' from the gross active assets.
    The residuum accruing to the heir in the immovable property will be affected by the judicial mortgage.
    Plaintiff can have no better right in the property than his debtor, unless he can show some fraud or collusion by which his rights have been impaired.

      Quoad the compromise and the transfer of the property the original judgment claim, if valid, remained on the property and during the time prescription did not'affect the judgment.
    The consideration that entered into the contract of compromise must be proved and the residuum established by proceedings required.
    To that end the judgment appealed from is annulled and the case is remanded to be tried in accordance with the views expressed.
    APPEAL from the Oivil District Court, Parish of Orleans. King, J.

      H. H. Hall Attorney for Plaintiff and Appellee:
    When a person, against whose future property judicial mortgages are recorded, acquires, as forced heir, an undivided one-third in and to a succession, largely composed of real estate, and in order to avoid the mortgages, sells her said interest in said succession before liquidation thereof, the purchaser who buys with full knowledge of the facts, and who is a party to the succession proceedings, can not set up as a defence that the succession was not liquidated, and that the mortgages did not attach by reason of the failure of the parties to partition the property thereof.
    In such case the purchaser and seller having, by their voluntary and tortious act, prevented the liquidation, the hypothecary action will lie against the former.
    A consent judgment of a person against her former tutor, rendered without account and proof, is null. 15 An. 225; 33 An. 35; 5 An. 499; 29 An. 532; 30 An. 1192; 37 An. 803.
    Such a judgment is prescribed by ten years, and when not revived can not be considered.
    Such a judgment not recorded, even if valid, could not prime a judicial mortgage duly recorded.
    Such a consent judgment has no effect against third persons.

      Albert Voorhies Attorney for Defendant and Appellant:
    Mortgage presupposes that, at the time, the debtor is the owner of the specific property, upon which the creditor claims his right.
    A succession is an entirety, including all properties, rights, debts and charges. The heirs inherit undivided shares in the succession as an entirety, but are not at once vested with absolute right of ownership of, or dominium over each specific piece of property inventoried. Their rights are ultimately determined by regular course of administration or partition.

      “ A creditor of the heir, or of one of the heirs, can not seize and sell the title and right of his debtor to a specific part of the property by him inherited; the seizure must be for the whole of his said rights, as well as the charges, with which they are burdened.’> Mayo vs. Stroud, 12 R. 108.

      An heir in indivisión may mortgage his undivided eventual interest in specific property of the estate; but the mortgage is not valid de prcesenti; and the mortgagee takes the mortgage cum onere, for what it may ultimately be worth.
    “ An entire succession, disregarding the elements, which enter into its composition, is not an object susceptible of mortgage.” Yoorhies vs. DeBlanc, 12 An. 864. Held: that the judgment against one of the heirs did not give him a judicial mortgage on the heir’s share in the immovables of the succession.
    'u The widow in community can not, while the succession is still under administration, and before its debts are paid, and her residuary interest thus definitely ascertained, execute a valid mortgage on her undivided half of any specific property of the succession. * * * How can she pick out a particular piece of property, or several pieces, and, assuming that the sale of it, or them, will not be necessary to pay the debts, appropriate an undivided half to herself, and mortgage it as her own absolutely?” Cestac vs. Florane, 81 An. 498.
    Such a mortgage “ can have no effect beyond her actual interest determinable upon a settlement of the community.” Palmer vs. Dickson, 37 An. 915.
    'The judicial mortgage against Widow Schiller would certainly attach to any specific property allotted to her in the partition of the estate; but not otherwise.
    In the partition of the succession no real estate was allotted to her, but her share was allotted by a payment of money and a remission of the debt due by her to the succession, which debt in reality amounted to more than double the rest of the assets, while her interest as an heir was only one-third of the succession.
   'The opinion of the court was delivered by

Breaux, J.

Plaintiff instituted this hypothecary action to enforce the payment of a judicial mortgage he claims on one undivided third •of certain property in the possession of the defendant.

Plaintiff’s judgments, amounting to three thousand dollars, wereobtained in-1883, and duly recorded in May of that year.

In 1881 Mrs. J. B. Schiller, against whom these judgments were obtained, made a partition and partial settlement with her children, to whom she was indebted as tutrix; the act of partition shows the acquisition of the property on which plaintiff claims a judicial mortgage by Mary A. Schiller, wife of O. A. Fairex.

In 1881, after the partition and partial settlement, Mrs. O. A. Fairex brought suit against her mother for an account, and in default of' an account for thirty thousand dollars and interest.

Judgment was pronounced in her favor for that amount, being, the judgment recites, proportion of rents and revenues of the community property held in common by defendant with her husband, John B. Schiller, and due to the plaintiff.

In August, 1884, Mrs. Mary E. Schiller bequeathed the undivided two-thirds of the property to O. A. Fairex, the disposable portion; and her mother, Mrs. J. B. Schiller, inherited the remaining one-third as forced heir.

The will included two-thirds of the judgment obtained by the testatrix against her mother in 1881.

The property, including the judgment, were inventoried in the succession of the testatrix.

In 1887 Mrs. J. B. Schiller brought suit to annul the will of her daughter, Mrs. O. A. Fairex, and one of the allegations was that the judgment obtained by her daughter against her was not real, though it existed in fact.

In 1888 Mrs. J. B. Schiller consented to a judgment maintaining her daughter’s will, and transferred to O. A. Fairex her undivided one-third interest as forced heir in the property, on which plaintiff claims a judicial mortgage.

Fairex, the transferee, paid Mrs. J. B. Schiller and her two daughters, Mrs. Henley and Mrs. Rollings, the sum of thirty-five hundred dollars.

All three are parties to the act “to compound, compromise and adjust their differences upon the terms and in the manner” declared in the act.

O. A. Fairex, as instituted heir of his wife, Mary E. Schiller, in addition canceled and annulled the judgment of thirty thousand dollars obtained by his wife against her mother, Mrs. J. B. Schiller.

In the deed it is declared that the judgment is canceled by O. A. Fairex “in consideration of said above compromise.”

Upon these facts judgment was rendered in favor of the plaintiff, condemning him to deliver the property or pay the amount.

From the judgment the third possessor prosecutes this appeal.

Two questions present themselves:

1. Does plaintiff’s judgmentlaffect the property of the defendant or secure a judicial mortgage?

2. Does it precede all claims in rank, and can the property be held subject to plaintiff’s judicial mortgage without regard to any preexisting indebtedness of Mrs. J. B. Schiller to the defendant which entered into the act of compromise of 1888 between her and Fairex?

THE JUDICIAL MORTGAGE.

In answering the first question our attention is arrested by the leading case of Voorhies vs. DeBlanc, 12 An. 864, cited by defendant’s counsel, in which it was decided that an entire succession, disregarding the elements which enter into its composition, can not be mortgaged.

It is argued in behalf of the defendant that the debtor to plaintiff, Mrs. J. B. Schiller, did not acquire the specific property on which plaintiff 'claims a mortgage. That the mortgage did not attach for the reason that no settlement was made and no partition. That she could not have dominium over the property pending the administration. That the heirs inherited the succession as an entirety to be partitioned.

Such being defendant’s appreciation of the facts, we are referred by his counsel to several decisions in line with the decision before mentioned as applying.

It would be going beyond what is called for by the facts in this case, to express an opinion regarding the principle announced in the Voorhies-DeBlanc decision.

In the case of Tureaux vs. Gex, Administrator, 21 An. 253, this Court said that the mortgage resulting from the recording of a judgment attaches to the heirs’ portion of inherited immovable property, and that the enforcement of such mortgage is dependent upon the final settlement of the succession.

The Court adds: “Some doubt is created by the decision of the majority of the Court, but that a careful examination of the case will show that the point was not decided nor directly presented.”

From Smith & McKenna vs. Charles, 27 An. 504, we quote:

“The recording of a judgment against an heir was held to affect all the mortgageable property thus owned by such heir. ’ ’

We quote from these decisions to establish that it has never been held that the heir’s portion is not affected by a mortgage against him. The conditions being that the enforcement of the mortgage is dependent upon a partition and final settlement of the succession.

In the ease at bar the mortgage debtor was in possession of the undivided third of the lots inherited from her daughter, and there was in effect a partition, a final settlement of the act of compromise ; but it did not remain as intended by the parties.

She transferred a third of the property to the co-proprietor, the instituted heir.

The contention of the purchaser,' Fair ex, at this time, is that it never passed out of the succession of the testator.

This position is not tenable, for he has acknowledged in a notarial act of transfer that Mrs. Schiller was in possession, and that she owned the property he acquired from her. The defendant having acknowledged that ■ she had the right to sell, the legal sequence is obvious that the judicial mortgage attached.

The power to alienate included the power to mortgage.

The ease is at least one remove from the DeBlanc-Voorhies case and other decisions in pari materia in which the issue related to property that had not passed from the succession to each heir in propria nomine, but had remained unsettled as an entire succession. In the case under consideration the property had passed to the heir with the consent of the instituted heir and co-owner, who bought from the debtor, Mrs. J. B. Schiller.

The property is, beyond all question, in his possession as owner.

Such being the fact, he is without right to have it considered as in the possession of the succession of his late wife and never to have been in possession of her mother, as owner and heir, from whom he acquired.

As plaintiff’s judicial mortgage attached, it devolves upon us to pass upon the second point involved, and suggested by the question relating to the indebtedness of Mrs. Schiller to her daughter, and its effect upon plaintiff’s claim.

She was, it is contended by defendant, a debtor in a large amount, and in consequence not entitled to any portion of the estate.

Further, that after the settlement of the amount due she would have remained indebted to the succession; that her creditor, the plaintiff, could not acquire any right upon the property before a settlement had been made.

In answer to this contention of the defendant, the plaintiff argues that she sold her undivided third interest to the property to the third possessor, Fairex, and thereby rendered it impossible to make a settlement.

The compromise was made between plaintiff’s debtor and the third possessor on the basis of an alleged indebtedness of the former to the latter, amounting, they declared, to thirty thousand dollars, for revenues and collections and a cash consideration.

The judicial mortgage creditor should not thereby gain an advantage, nor should its interest as a mortgage creditor be thereby prejudiced.

Plaintiff can have no better right in the property than his debtor, unless he can show some fraud or collusion by which his rights have been impaired.

■ It seems to us that the encumbrance on the property should be established by reference to the condition existing at the date of the transfer.

That the act of compromise and settlement does not extinguish pre-existing rights to the benefit of the judicial mortgage creditor, unless it contains declaration to that end of such a character that it is absolutely binding forever.

If there was an amount due by Mrs. J. B. Schiller, it was an amount for which her interest in the estate of her daughter was accountable. The two claims — that of the succession as a creditor and that of Mrs. Schiller, as a forced heir of her daughter, were subject to adjustment and settlement in the process of settlement of the latter’s succession.

The mortgage of plaintiff could attach only to the residuum after settlement.

The act intended as a compromise effected the settlement of the succession by a showing between the parties that Mrs. Schiller, because of her indebtedness to the succession, had no interest in the property, save possibly as to the amount cash paid to her by the instituted heir, Fairex.

If the compromise is not of binding effect, as to the claims of third persons, and does not protect the defendant against plaintiff’s judicial mortgage, the condition prior to the compromise should be restored.

As to that portion of the thirty-five hundred dollars paid to her as an additional consideration for the compromise. There is an appearance of additional value of Mrs. Schiller’s interest in the property inherited by her over and above her indebtedness.

If there was an additional value fixed by defendant, it may be that the mortgage of plaintiff to that extent attached to the property.

As the case must be remanded for another trial, we formulate our first impressions on this point — that is, regarding the effect of the cash paid as an additional consideration, and leave that particular question open for future determination. ■

JUDGMENT BY CONSENT.

The plaintiff contends that the judgment of thirty thousand was a consent judgment.

We do not think that we are authorized, in these proceedings, in which the judgment is not attacked, to pass upon its validity and decree that it has no binding force.

On the face of the papers it does not appear that it was a consent judgment, and that it was without consideration. It was treated in different transactions as a judgment having consideration, except in a petition in which the judgment debtor alleged that it was without consideration.

The declaration, unconnected and of itself, does not affect whatever right the judgment creditor had.

The rights of both, plaintiff and the third possessor, are reserved— the former to attack and the latter to present all legal pleas in defence.

PRESCRIPTION.

The plaintiff, as an additional ground against the judgment of defendant against Mrs. Schiller, pleads the prescription of ten years.

The ten years had not elapsed at the date of the compromise in 1888.

With reference exclusively to prescription vel non.

We think that the judgment having entered into the compromise, entered into to settle the rights of the parties, that it escapes from the effects of the plea during the suspension which follows the compromise ; that if not settled as intended, it was not subject to the plea.

That question, in so far as relates to re-inscription, was passed npon and determined in the case of New Orleans Insurance Association vs. Lebranche et al., 31 An. 844.

Interpreting Art. 3409 of the Civil Code, Justice White, for the Court said: “ The servitudes and incorporeal rights which the third possessor holds on the property before his possession of it are revived after his relinquishment, or after the sale under execution made upon him.

‘ ‘ Under this umambiguous provision were Montegut evicted by the benevolence of the law-maker would come the restitutio ad integrum.

The annulment or rescission of the sale would have the effect of placing the parties in the position they held before the sale, each party being restored to the rights he then had, and abandoning those which had ineffectually been transported to him,” and citing Larombiere, Vol. 2, p. 286, and Solon, Vol. 1, p. 62, in support.

“ These principles are the outcome of natural justice, and are dictated by the wise motive that courts may not be made the instruments of injustice by lending their aid to enrich one man at the expense of another.”

Particularly with reference to re-inscription the Court in that case holds: “We can not take one provision of the law, that which dictates re-inscription, and abandon every other. * * *

“ The rights being fixed, the reason for inscription ceases. Itwould be indeed an inequitable system which would allow a creditor, whose rights against the proceeds would entitle him to nothing, to lie in wait for the unsuspecting owner and, when the useful time for re-inscription had passed, take by way of action in nullity that which he could not have attained by the timely assertion of his rights.”

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is hereby annulled, avoided and reversed.

That plaintiff’s mortgage, resulting from the recording of the judgment against the forced heir, Mrs. Schiller, attaches to her portion subject to prior debts.

That the amount of the indebtedness of Mrs. J. B. Schiller to the succession of her daughter, Mary B. Schiller, be ascertained and fixed.

That the residuum be legally established, if any, by reference to her indebtedness and by required proceedings.

Of the thirty-five hundred dollars cash, in compromise of 1888, the amount paid by O. A. Fairex to Mrs. J. B. Schiller, and whatever effect that payment may have on the value of the residuum is reserved for future decision.

That the case be remanded, to be tried in accordance with the views herein expressed.

The rights of the parties to amend their pleadings, so as to set forth all their claims and pleas, are reserved.

That appellee pay costs of appeal.

On Application for a Rehearing.

Breaux, J.

In his application for a rehearing the defendant and appellant asks that certain rights be reserved, or, in the alternative, that a rehearing be granted.

We can not conceive that any further reservation need be made, or that a rehearing should be granted.

We have decided that plaintiff’s recorded judgment against the heir, Mrs. J. B. Schiller, affected the mortgageable property to the extent of the residuum.

We certainly have not prejudged any issue which will be in the way in ascertaining whether or no there is a residuum.

Her rights and her liabilities as an heir and as a debtor to her daughter’s succession must be established; all indebtedness proved and chargeable must be charged.

No point passed upon increases or lessens those rights or liabilities.

They are absolutely unaffected by our decree.

Rehearing refused.


author: Miller, J.

text:
    No. 11,559.
    The State of Louisiana vs. The People’s Slaughterhouse and Refrigerating Company.
    An act providing for the appointment by the Governor of an inspector, -with power under the supervision of the Board of Health to inspect throughout the State animals intended to be slaughtered for human food and providing for his fees, is not in conflict with Art. 46 of the Constitution, because the act professes to amend a legislative act embodying the charter of a corporation — the proposed amendment being immaterial and the et assailed being valid if the proposed amendment is stricken out.

      Nor will such act relating altogether to the inspection of animals intended for human food be deemed to include more than one subject in violation of Art. 29 of the Constitution, because it professes to amend a prior act on the subject of inspection, the act assailed being entirely sufficient to effect its object if the proposed amendment had not been inserted.
    The title to charge the Board of Health with the supervision of the inspection of stock to be slaughtered for human food covers the appointment of an inspector of such stock and the provision for his fees.
    Nor does such an act for the inspection of stock throughout the State require previous notice under Art. 48 of the Constitution.
    The authority conferred by Art. 248 of the Constitution of the State on municipal corporations and parishes, to regulate within their limits the slaughtering of animals for human food, does not strip the State of the police power to provide for the appointment of an inspector of all such animals slaughtered throughout the State, such inspection to be under the supervision of the Board of Health. Cooley on Constitutional Limitations, Chapter 16, “Police Power;” The Slaughter House Case, 16 Wallace, 36; The Beer Case, 97 U. S. 25.
    APPEAL from the Oivil District Court, Parish of Orleans. Monroe, J.

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

      Farrar, Jonas & Kruttschnitt Attorneys for Charity Hospital, Appellants :
    Act No. 87 of 1888 is a valid inspection law. The Slaughterhouse Charter was based on the police power ofj the State, and, being an exercise of the police power, it was not a contract, and the Legislature could at any time repeal or amend any part of the charter. The fact that part of a title is unconstitutional does not make the whole law unconstitutional. State vs. Exinicious, 33 An. 253; State vs. Crowley, 33 An. 782; Williams vs. Lodge of Masons, 38 An. 620.
    There is no distinction between this case and the auctioneer’s fee or percentage on sales, which is directed to be paid to the Charity Hospital, which this Court has affirmed in numerous decisions. State vs. Girardey, 34 An. 620; Board of Administrators vs. Girardey, 36 An. 605; Boye vs. Girardey, 28 An. 713; Wintz vs. Girardey, 31 An. 381.

      J. B. Beckwith for Defendants and Appellees.
   The opinion of the court was delivered by

Miller, J.

This is an appeal from the judgment of the Oivil District Court against the State on its petition for an injunction to restrain defendant from slaughtering animals for human food, until inspected by the State Inspector and the inspection, fees paid as directed by the act of the Legislature No. 87 of 1888.

The defence was, besides the exception of no cause of action, that the act of 1888 is unconstitutional because violative of Arts. 29, 43, 46, 48 and 248 of the State Oonstitution. The argument in this Court in behalf of defendant is mainly directed to the asserted repugnancy of the act to Art. 248.

The prohibition in Art. 46 is against amending charters of corporations. The act of 1888 does, in its title, express the purpose to amend the Act 118 of 1869, which, besides creating the Orescent City Live Stock Landing and Slaughterhouse Company, was “an act to protect the health of the city of New Orleans,” and in its sixth section provided for the appointment by the Governor of an Inspector of Animals intended to be slaughtered for human food. The sixth section in no sense formed part of the charter of the Crescent City Company, though that company was subjected to its operations. It is this sixth section the act of 1888 proposes to amend, and the change is to extend the inspection of animals to be slaughtered, place the inspection under the supervision of the Board of Health, impose certain additional duties on the Inspector, especially with respect to the cleanliness of the slaughterhouse, and change the disposition of inspection fees. An amendment of this section is not an amendment within the purview of the forty-sixth article. It would be a valid enactment if the title of the act of 1888 made no reference to the act of 1869, and hence can not be assailed because the title of the act of 1888 refers to the act of 1869.

We group, for consideration, the objections to the act of 1888 based on Art. 29, to-wit: that the title to the act does not express its object, and that the act embraces more than one object. The purpose of the act was, as already stated, to enlarge the duties of the Inspector of Live Stock so as to extend to all animals slaughtered for human food in all slaughterhouses, and place inspectors under the supervision of the health officers, and to make other changes incident to inspection already stated. From first to last the act deals only with inspection of animals and the supervision under which it is to be conducted. The provisions with respect to fees and their disposition, and other details, are all germane to the subject of inspection, and the reference to the act of 1869 introduces no new subject, and for all practical purposes might as well be omitted. Viewing the act as not covering two objects, and holding that the substantial purpose is fairly covered by the title to charge the Board of Health with the supervision of all stock to be slaughtered, the appointment of the Inspector and his fees being incident to that supervision, we hold there is no repugnancy of the act of 1888 to Arts. 48, 29, 43 and 248 of the Constitution. The title of the act is certainly broad enough to cover the appointment of the Inspector, and that appointment is all that this suit involves. We are safe in holding the title sufficient for that purpose. The second and fifth exceptions, that the act attempts to appropriate public money that should go into the treasury, and that the act was local and required notice, we think hardly deserve serious consideration. An act looking to the inspection of all live stock to be slaughtered anywhere in the State, and providing for the inspection commensurate with the scope of the act, can hardly be deemed local. Money derived from taxes and licenses, i. e., the ordinary revenues of the State, can be taken out of the treasury only by legislative appropriations. But fees required to be paid in aid of inspection or health laws are manifestly within the scope of Art. 46 of the Contitution. The remaining exception is that Art. 248 of the Constitution of the State strips the Legislature of all police power with respect to the inspection of animals to be slaughtered for human food. That power, it will be conceded, extends to all the incidents of the subject within its scope. It will doubtless occur that the powers with respect to some of those incidents may well be exerted to the full extent required by the municipalities and parishes. But it is not easy to conceive that with reference to other incidents within the police power, the municipalities and parishes could exert the functions required. Thus, if legislation is required to act on the subject generally and to be effective throughout the State, so as to bring the subject within the operation of a uniform rule, such rule would have to be prescribed by the State, the authority of towns, cities and parishes being limited by their territorial jurisdiction. An inspection law to operate on animals intended to furnish human food from the time the animal is introduced, and to apply wherever it is carried within the State, would, from the very nature of such a law, require State authority for its enforcement. It is not, therefore, reasonable to hold that it was ever intended by the Constitution to deprive the State of all competency for such general legislation. All canons of interpretation are against the presumption of the relinquishment of the police power existing in the State (Cooley’s Cons. Lim., Chap. 16; the Slaughterhouse Case, 16th Wall. 36, passim). The 248th article of the Constitution delegates to the parishes and municipalities the regulation of the slaughtering of animals within their respective limits. It would be, we think, giving to the “ regulating ” a significance far beyond the import of the word if we were to hold that the State was thereby deprived of all power to pass an inspection law to operate throughout the State on animals before they can be slaughtered. This court has held in cases simply involving the location of slaughterhouses in this parish, that this power to prescribe the location was in the local authorities under the article of the Constitution. The court in reaching that conclusion used some general language with respect to the supposed divestiture of the State of its police power under the Art. 248. All that the determination of the cases required was the adjudication that the location of slaughterhouses was in the parish or municipal authorities. Any reasoning of the court in those cases is of course controlled by the single point at issue, i. e. the location of slaughterhouses (Villavaso vs. Barthet, 39 An. 247; Darcantel vs. Slaughterhouse Company, 44 An. 632). The act, of 1888, in question here provides for the appointment of an inspector to act under the supervision of the Board of Health to inspect all animals slaughtered for food in the slaughterhouses here and in all other slaughterhouses within the State. The validity of such an act was in no manner involved in the previous decisions of this Court. In so far as the act provides for the inspector and his fees, it was the exercise of the general police power left in the State untouched by Art. 248, delegating the police power only to a limited extent to the municipalities and parishes. The injunction in this case is to prohibit the slaughtering or permitting the slaughtering of animals in defendant’s slaughterhouses until the animals are inspected and the inspector’s fees paid. To that extent we are clear the act is valid. The defendant is without interest with respect to the fees, and if there are other questions beyond that presented by the application for the injunction, it will be time enough to meet them when they arise. We have given the case, we believe, all the consideration it requires. The parties are anxious for a speedy decision, and, submitted as the case has been, at the close of the term, we have not been able to elaborate the opinion, but have presented sufficiently, we trust, the ground of our decree.

It is therefore ordered, adjudged and decreed that the judgment ■of the lower court be avoided, annulled and reversed; and it is further ordered, adjudged and decreed that the defendants be enjoined .and restrained from slaughtering or permitting to be slaughtered in their slaughterhouse any animal intended to be slaughtered for human food until the same is inspected by the State Inspector and his fees paid, as directed by the legislative Act No. 87 of 1888, and that defendants pay costs.