author: Taliaferro; J. Ludeling, C. J. Morgan, J., Wyly, J.,

text:
    No. 4566.
    Cornelia Hart, Tutrix v. Hoss & Elder, Administrators. T. E. Hart v. the same. (Consolidated.)
    Under the first- section .of the civiL rights 'act, the’ sixth article of the Constitution of the United States, and the State Constitution of 1864, title 1, art. 1, Cornelia Hart, a colored person, was vested in November, 1867, with the right to enter into a contract of marriage, and her marriage at that epoch with C. E Hart, a white man, was clothed with all the formalities required by law — which marriage, if there existed any doubt as to its validity, would have to be considered as ratified and confirmed by art. 149 of the State Constitution of 1868.
    In 1867, when the marriage of Cornelia Hart was effected, the incapacity attaching to her children under former laws, of being legitimated on the ground of the legal inability of their parents to contract marriage at the time of the conception of the children, had been obliterated.
    It is considered well settled that other modes of the acknowledgment of illegitimate children, besides that by notarial act, are authorized by the laws of this State. Any alteration made in the Code of 1870 as to this matter, could not affect the rights oí the children of Hart, which were fixed in 1867.
    The fact that C. E. Hart, now deceased, had acknowledged as his children the issue of his cohabitation with Cornelia, is sufficiently established to enable this court to decide that they were capable of inheriting from their father at the time of his decease in 1869.
    Appeal from the Parish Court of the parish of Caddo. Smith, J.

      Land & Taglor, for plaintiff and appellee. JBgan, Williamson & Wise, for T. E. Hart et al., and for administrator Nathan Hoss, appellants.
   Taliaferro; J.

Two sets of litigants, claiming adversely to each ■other a large succession opened in the parish of Caddo in 1869, brought these suits against the two administrators of the estate, claiming it as heirs and praying to be put into possession of the property of the estate. One of the suits is brought in behalf of her children by Cornelia Hart, alleging that she is the widow of E. C. Hart, deceased, and natural tutrix of her minor children, issue of her marriage with the said Hart, and that they are the legal heirs of their father. The other suit was instituted by various persons, setting themselves up as the Dearest relatives of E. C. Hart and entitled to his estate as collateral 'heirs. The administrators answered separately. One of them, Elder, ¡answered by general denial. Hoss, the other administrator, specially denies the rights claimed by the tutrix for her minor children, and ¡avers specially that the plaintiff being a woman of color, she was prohibited by law from marrying E. C. Hart, and that her children could not be legitimated by a marriage subsequent to their conception and birth. He further averred that one Theodore Hart and others claimed “to be the heirs of E. C. Hart, deceased. The two suits were consolidated and tried together in the parish court. Judgment was rendered in favor of the tutrix, recognizing her as the lawful wife of E. C. Hart, deceased, and the children represented by her as the legitimate children and heirs of E. C. Hart, ordering that the tutrix be put into possession of the property of his estate, and rejecting the pretensions of Theodore Hart et al. From this judgment Hoss, one of the administrators, and Theodore Hart and his co-plaintiff, have appealed.

There is an exception by the administrator Elder to the jurisdiction of the court quoad the suit of Theodore Hart et- al. on the ground that ¡the plaintiffs in that case are claiming adversely to Cornelia Hart, •tutrix, a succession worth more than five hundred dollars. In each ¡suit the plaintiffs are claiming to be heirs of E. C. Hart, deceased, and pray to be recognized as such and to be put into possession of his estate. 'Their claims are adverse to each other.' But neither is suing the other for the succession. The issue before the court is, which of the parties plaintiffs, if either, are the heirs of El C. Hart. The leading question is, which of these parties, if either, shall be recognized as the heirs of ■the decedent. The parish court clearly has jurisdiction. Code of Practice, articles 1000 and 1003.

The material facts elicited by this litigation are, that E. C. Hart, whose succession forms the bone of contention, lived a number of years in concubinage with the plaintiff Cornelia, a woman of color. ¡Several children, all minors at the time of Hart’s death in 1869, were the fruit of this intercourse. In November, 1867, Hart and Cornelia were married in Shreveport, about eighteen mouths before the decease ¡of Hart. This marriage was solemnized by a Roman Catholic priest in .accordance with the forms of the Roman Catholic Church. A regular joroees verbal of the ceremony of mamage was made out and signed by the parties to the marriage, by three witnesses and by the priest who officiated. No marriage license was issued, and no return was made of the act of celebration for record.

Subsequently the children were baptized by the same priest, of which he furnished a certificate. At the baptism the father was not present, but it is shown that it was done at his instance and by his consent The plaintiff Cornelia, was confirmed natural tutrix of her minor children, representing them to be the legal heirs of E. 0. Hart, deceased. Letters of tutorship were issued to her and an under tutor appointed.

The ground assumed in this controversy by Theodore Hart and others claiming as the collateral heirs is, that at the date of the alleged' marriage between E. C. Hart and Cornelia the plaintiff, marriage-between a white person and a person of color was prohibited by the laws of Louisiana, and that the pretended marriage of those persons-was null as having been entered into in violation of a prohibitory law. They urge that the marriage was a “private marriage” in the sense of the statute of 1868, No. 210, pages 278 and 279; that proof of that class-of marriages can only be made by notarial act executed by the parties-in conformity with the provisions of that act. They further contend that aside from the question of color, the illegitimacy of the children, arising from their having been born out of wedlock operates an incapacity to inherit which can only be removed by legitimation in the manner prescribed by law, and refer to Civil Code, articles 180, 198 and 200. They assumed from these articles and from the statute of 1870, entitled “ An act to authorize natural parents to legitimate their natural children (acts of 1870, p. 96) that legitimation of the children of E. C. Hart could be made only by the formal acknowledgment by the father in an act passed before a notary and two witnesses. They aver that such proof has not been made in this case and they stand upon the inadmissibility of any other species of proof to establish, their legitimacy, referring to articles 198 and 200 of the Civil Code.

On the other side it is argued that at the date of the marriage of E. C. Hart to Cornelia there was no law of Louisiana prohibiting the marriage; that the children of that marriage may .and have availed themselves of the existing laws of the State to establish, their legitimacy and their right to inherit their father’s estate. Civil Code, articles 208 and 209. It is contended in their behalf that if, at any time-prior to the marriage of. their parents, there existed an incapacity in them to occupy the status of legal heirs, that incapacity was removed by the passage by the Congress of the United States, of the act of April 9,1866, commonly known as the “ Civil Rights Bill,” and by the adoption of the fourteenth amendment to the Constitution of the United States. The plaintiffs in suit 653, object that the Civil Rights Bill is unconstitutional and that the fourteenth amendment was adopted after the marriage took place between E.C. Hart and Cornelia., the mother of the children.

The first section of the Civil Rights Act declares “that all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the, United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, •except as a punishment for crime, whereof the party shall have been «duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to-sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains and penalties, and to none other, any law, statute, ordinance, regulation or ■custom to the contrary notwithstanding.”

The subsequent sections provide the means for enforcing the law in the several States and Territories, and denounces certain penalties for violating its provisions, and provides for final appeal to the Supreme ■Court of the United States.

This act of Congress only declares who shall be citizens of the United States, what shall be their rights and privileges in- the several States, and provides penalties for a violation of those rights and privileges. This we think Congress had clearly the right to do, and we therefore see no reason to doubt the.constitutionality of the act.

The sixth article of the constitution of the United States declares that “ this constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.”

If this law of Congress called the “ Civil Rights Act” is not in violation of the constitution of the United States, it is paramount to any State law, and the provisions of any State law that are inconsistent with or conflict with it are to that extent annulled.

If Cornelia Hart and her children were once slaves, they became ■free persons under the State constitution of 1864, title I, article 1:

Slavery and involuntary servitude, except as a punishment for ■crime, whereof the party shall' have been duly convicted, are hereby forever abolished and- prohibited throughout the State.”

The constitution of 1864 made the appellee and her children free persons. The act of Congress of April, 1866, made them citizens of tli6 United States, and relieved them of all previous disabilities they labored under on account of race, color or previous condition of slavery, by annulling previously existing laws of the State creating such disabilities, and conferred upon and vested in them all the civil rights and privileges of white persons. Cornelia Hart, therefore, in November, 1867, was vested, with the right to enter into a contract of marriage. Our law considers marriage in no other view than as a civil contract. C. C. art. 86.

Article 90 of the Code proceeds: As the law considers marriage in-no other view than that of a civil contract, it sanctions all those marriages where the parties at the time of making them were, first, willing-to contract; second, able to contract; third, did contract pursuant to-the forms and solemnities presented by law.”

All the conditions required by the laws of Louisiana to constitute a valid marriage we think were fulfilled in the marriage of E. C. Hart-with Cornelia, the mother of his children. It is distinctly established by the testimony of the priest who performed the marriage ceremony that the marriage was not what is termed “ a private marriage,” as-contended for by the appellants, such marriages not being permitted by the rules of the Catholic church. The objections to the validity of' this marriage because no marriage license was issued, and that it was not published or made public, we consider as without weight. Article 149 of the present State constitution declares:

,£ All rights, actions, prosecutions, claims, contracts, and all laws in force at the time of the adoption of this constitution and not inconsistent therewith, shall continue as if it had not been adopted. All judgments and judicial sales, marriages and executed contracts, made in good faith and in accordance with existing laws in this State, rendered, made or entered into between the twenty-sixth day of January 1861, and the date when this constitution shall be adopted, are hereby-declared to be valid, except the following laws,” etc.

The marriage of these parties having been entered into within the - period embraced by this article of the constitution of 1868, and having been celebrated in accordance with existing laws of this State, seems to have been ratified and confirmed, had there existed any doubt of its validity.

On the question of the legitimation of the children the appellants rely upon the articles 198 and 200 of the Civil Code. Article 198 provides that, children bom out of marriage, except those who are born from an incestuous or adulterous connection may be legitimated by the subsequent marriage of their father and mother whenever the latter have legally acknowledged them for their children either before their marriage by an act passed before a notary and two witnesses, or • by their contract of marriage itself.” Article 200 declares that ££ a natural father or mother shall have the power to legitimate his or her • natural children by an act passed before a notary and two witnesses,. declaring that it is the intention of the parent making the declaration to legitimate such child or children. But only those natural children. can be legitimated who are the offspring of parents who, at the time of conception, could have contracted marriage. Nor can a parent-legitimate his or her natural offspring in the manner prescribed in this article when there exists on the part of such parent legitimate ascendants or descendants.”

By the former laws of this State the children of E. C. Hart by the colored woman Cornelia could not have been legitimated for the reason that at the time of their conception, their parents could not have-entered into marriage; but in the consideration of the subject we must-bear in mind that at the time of the marriage of these parents in 1867, the incapacity in the children under the former laws of becoming-legitimated on the ground of the legal inability of their parents to-contract marriage at the time of the conception of the children, had been obliterated. No incapacity for that cause existed. The effect of the law of Congress was, to place them in the situation they would have been in under the former laws, if at the time of their conception-their parents could have contracted marriage; in other words the effect-of the law of Congress was to place them in every respect as to legal rights, in the situation of white children; and in this investigation we must throughout consider them as occupying the same position that-white children occupy.

But we understand the appellants to hold that without regard to color children in this category can only be legitimated by the marriage of their parents and the acknowledgment of the parents made by an act passed before a notary and two witnesses. In this we apprehend they are in error. Other modes of acknowledgment seem clearly to be authorized by our laws. “ The filiation of legitimate children may be proved by a transcript from the birth or baptism kept agreeably to-law or the usages of the country.” C., C. article 193.

An acknowledgment may be made by the contract of marriage. C. C. 198.

“Illegitimate children who have not been legally acknowledged may be allowed to prove their paternal descent. C. C. article 208.

The succeeding article of the Code' declares: “In the case where the proof of paternal descent is authorized by the preceding article, the proof may be made in either of the following ways:

First — By all kinds of private writings in which the father may have acknowledged the bastard as his child, or may have called him so.

Second — When the father, either in public or private, has acknowledged him as his child, or has called him so in conversation, or has caused ‘him to be educated as such.

Third — When the mother of the child was known as living in a state of concubinage with the father, and resided as such in his house at the time the child was conceived.”

We consider it well settled that other modes of the acknowledgment of illegitimate children besides that by notarial act are authorized by the laws of this State. In the case of Lange et al. v. Richoux et al., 6 L. R. 570, this court said, in reference to this subject, that “the words used in article 221 [203 of Ray’s Code] are not prohibitive, and so far from declaring that a declaration before a notary shall be the only proof permitted, the Code expressly permits other modes of proof, both of paternal and maternal descent, without any restriction .as to the purpose for which it may be allowed.” The cases referred to by the counsel for appellants seem to relate to colored children under laws not now in force, and are not applicable to the case before us.

It remains to be considered whether the children of Cornelia Hart were capable of inheriting at the time of the opening of the succession of E. C. Hart in May, 1869. Article 950 of the Civil Code declares that it is “at the moment of the opening of the succession that the capacity or incapacity of the heir who presents himself to claim an intestate succession is considered.” Article 945 provides that all persons, even minors, lunatics, persons of insane mind, and the like, may transmit their estates ab inestato and inherit from others.” Article 199 declares that “children legitimated by a subsequent marriage have the same rights as if they were born during marriage.” Article 954 declares that “the child legitimated by a marriage posterior to its conception, only takes those successions which are opened since the marriage of the father and mother.”

The marriage of E. C. Hart with Cornelia, the mother of the children, claiming for them the succession of their father, was a valid marriage. The record abounds with evidence of the recognition and acknowledgment of these children by E. C. Hart. His solicitude to transmit his property to them is shown to have been strong. The Catholic priest testifies that prior to his marriage with Cornelia, Hart desired him to take a conveyance of all his property in trust for his children. His avowed object in marrying their mother was to legitimate them. They were baptized in the church as the children of E. C. Hart and Cornelia Hart. The act was performed with his knowledge and at his instance. He requested a friend to be present and stand as godfather to them. A registry of the baptism was made in due form. He called the children his own, caused them to be educated as such, and as his children employed physicians to attend them in sickness. Upon the cross-examniation of Cornelia, the mother, she testified that E. C. Hart, in 1857, made a will in which lie acknowledged as his own her two children then born; and provided for them and herself, and that he destroyed the will after their marriage. The evidence fully establishes that the mother was well known as living in a state of concubinage with the father, and resided in his house at th6 time the children were conceived and born. No impediment would be in the way of white children becoming legitimated, standing in every respect under the same circumstances.

We conclude upon the whole, that the children of E. C. Hart were capable of inheriting from their father at the time of his decease; that they are his legal heirs, and entitled by law to his succession.

There are various bills of exceptions in the record, taken by the appellants, to the admission of evidence offered by the counsel for the tutrix, to establish the acknowledgment of her children by Hart. The testimony we think was admissible under the pleadings, and that the exceptions were not well taken.

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

On Rehearing.

Ludeling, C. J.

We deem it unnecessary to pass upon the questions raised by the amended pleadings and by the bills of exceptions, inasmuch as we propose to decide the questions raised by said amended answers; and the facts necessary to present those issues are either proved or admitted to be true. The ends of justice will be subserved, therefore, by a termination of this protracted and fierce litigation.

The pleadings and facts of this case are substantially stated in the opinion of the court rendered on the tenth of February, 1873.

The important questions to be determined are:

First — What effect did the Civil Rights bill have upon the status of Cornelia Hart and her children, persons of color?

Second — Did the law of Louisiana in 1867 exclude or prohibit all other modes of acknowledgments for the purpose of the legitimation of children by a subsequent marriage except those made in notarial acts, in the registry of birth or baptism, or in the act of marriage?

Third — Did E. C. Hart and Cornelia Hart legally acknowledge their children before their marriage?

I. The effect of the Civil Rights bill was to strike with nullity all State laws discriminating against them on account of race or color, and to confer upon them the rights and privileges which they would have under the State laws if they were white persons. It invested her with the capacity to enter into the contract of marriage with E. C. Hart, a white man, and to legitimate her children by him born before said marriage, just as if she had been a white woman.

The law declares they “ shall have the same right, in every State and. Territory in the United States, to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains and penalties, and to none other, any law, statute, ordinance, regulation or custom, to the contrary notwithstanding.” Marriage is a civil contract. C. C. art. 91.

II. The Code of 1825, under which the rights of the parties must be determined, subject, of course, to the modifications made therein by the civil rights bill, passed in April, 1866, contains the following provisions: “Children born out of marriage, except those who are born from an incestuous or adulterous connection, may be legitimated by the subsequent marriage of their father and mother, whenever the latter have legally acknowledged them for their children, either before their marriage or by their marriage contract itself.”

It is contended that the natural children could not be legally acknowledged, except by a formal act, a solemn act, in which form is of the essence. We have searched the Code in vain to find anything to support this position when white children are concerned. The only article of the Civil Code relied upon is article 221. It provides that “the acknowledgment of an illegitimate child shall be made by a declaration, executed before a notary public, in presence of two witnesses, whenever it shall not have been made in the registering of the birth or baptism of such child. No other proof of acknowledgment shall be admitted in favor of children of color.”

To say that this article is not prohibitive of other proofs of acknowledgment, except in favor of children of color, would be but a repetition of the language of the article. To maintain that the prohibition applied to white children, would be to render useless or meaningless an entire sentence in the article.

A statute is to be so construed as to give sense and meaning to every part, if possible. The maxims, “ expressio unius est exclusio alterim,” and “the exception proves the rule,” are fully applicable to this article. Therefore, “other proof of acknowledgment shall be admitted in favor of” white children. And article 227 of the Code of 1825 declares some of the ways in which proof of acknowledgment may be made when not prohibited. It may not be amiss here to notice that in the Code of 1808, the article 25 of sec. 2, chap, iii, corresponding to article 221 of the Code of 1825, made no distinction between white and colored children as to the kind of proof required, while the Code of 1825, as we have already seen, made a marked distinction. And the Code of 1870, while obliterating all distinctions on account of race or color, made a material addition in article 119 (217) by incorporating in said article the words, “by an act passed before a notary and two-witnesses,” after the clause, “whenever the latter shall have legally acknowledged them,” etc. But, of course, this change can not affect the rights of the children of Hart, which were fixed in 1867. C. C. art. 944.

The question presented in this case, it is believed, has never been directly adjudicated by this court. The case reported in 4 Mart. 266, was under the Code of 1808, and the parties to it were colored persons; and so they were in the following cases, in which the court expressed opinions in regard to the manner of proving an ackowledgment, to wit: 4 La. 175; 6 La. 560; 14 La. 542; 12 R. 57; 6 An. 157; 15 An. 342, and 21 An. 435. The views therein expressed are somewhat conflicting, and the cases preceding that in 6 An., Dupré v. Caruthers, were reviewed by Mr. Justice Preston, in whose conclusions alone a majority of the court concurred, while Mr. Justice Rost, dissenting, reviewed the law and the decisions of .this court, as well as the jurisprudence of France upon the subject. He adhered to the opinions expressed in Lange et al. v. Richoux et al., 6 La. 570, in which it was held that the language used in article 221 C. C. is not prohibitive, and that so far from saying that a declaration before a notary, or in the registry of birth or baptism, shall be the only proof permitted, the Code expressly permits other modes of proof, both of paternal and maternal descent, without any restriction as to the purpose for which it may be allowed. 6 An. 158. As to white children, we conclude that the interpretation of article 221, made in Lange et al. v. Richoux et al., is correct. See also Jones v. Hunter, 6 Rob. 236, where it is held that ail acknowledgment in a will made in Mississippi, not passed before a notary, was valid.

III. The evidence in the record leaves no doubt that E. C. Hart and Cornelia Hart openly, publicly and continuously, during many years, acknowledged their children. It is proved that Cornelia Hart was the concubine of E. C. Hart, and resided with him in his house from 185 until his death in 1869; that he publicly recognized them and treated them as his children, providing for their wants and education; that he requested a priest to baptize them, and asked a friend to stand as the godfather of his children. It is further proved that he was solicitous about disposing of his property so that it might enure to the benefit of his children after his death; that he requested Father Pierre, a Catholic priest, to take itr for their benefit, who declined, but suggested that he could legitimate his children by marriage, and thereupon he married the mother of his children for the purpose of legitimating them, in order that they might inherit his property. This is the substance of the testimony of the priest. It is ample to establish the acknowledgment before the marriage. But there is abundant proof of their acknowledgment before the marriage besides the testimony of the priest.

It is contended that inasmuch as the law forbade the marriage between their parents at the time of their birth, the children never after-wards could be legitimated. This is manifestly a non seqmtur. While that prohibition existed as a law of the State they could not be legitimated ; but the moment after the law forbidding marriages between white and colored persons was abrogated, it was lawful to legitimate them, in every way that white children might be. And the only prohibition against the legitimation of children by the marriage of their parents is to be found in article 217 of the Code of 1825, and the prohibition applies only to children born “from an incestuous or adulterous connection.”

It is therefore ordered and adjudged that the decree heretofore rendered in this case be-adhered to.

Morgan, J.,

dissenting. From the year 1854 to the day of his death, which occurred in 1869, E. C. Hart lived in concubinage with the plaintiff in this suit. She was a colored woman, and his slave. By her he had several children. In November 1867, he married her. None of the children were born after the marriage. They were, I believe, all born while the mother was a slave. Subsequent to their marriage the children were baptized. They were baptised as the children of Hart. The testimony is conclusive that before and after the marriage Hart treated these children as his own; that he admitted them to be his; that he desired to legitimate them, and that the priest who performed the marriage ceremony between the plaintiff and himself, advised him that marriage would legitimate them.

Under this state of facts the first question to be disposed of, in my opinion, is, can children born from parents so situated be legitimated under the laws of Louisiana? I think not.

Article 217 of the Civil Code of 1825 declares that “children born out of marriage, except those who are born from an incestuous or adulterous connection, may be legitimated by the subsequent marriage of their father and mother, whenever the latter have legally acknowledged them for their children, either before their marriage or by the contract of marriage itself. Every other mode of legitimating children is abolished.” By the statute of twenty-fourth March, 1831, p. 86, so much of this article as abolished all other modes of legitimation, except by marriage, was repealed, and natural fathers and mothers were permitted to legitimate their natural children, by acts declaratory of their intention, made before a notary and two witnesses. It was, however, provided in the same act that nothing contained therein should be so construed as to enable a white parent to legitimate a colored child, nor to prevent a free person of color to legitimate his colored children. It was also provided that legitimation could only take place if the natural children were the issue of parents who might, at the time their children were conceived, have contracted marriage. By the same Code free persons, without reference to color, and slaves, and free white persons and free people of color, were incapable of contracting marriage together. C. C. 95. This was the law when Hart’s children by the plaintiff were conceived, when he married her, and when he died. As they are the issue of parents who, at the time they were conceived, could not have contracted marriage, they can not, in my opinion, be legitimated.

It is held by the majority of the court that what is known as the Civil Rights bill obliterates all State laws creating distinctions between inhabitants of the State on account of race, color or previous condition, and therefore the marriage between Hart and the plaintiff was not prohibited by the State laws at the time of their marriage, and the marriage legitimates the children under the acknowledgments to be found in the record. I do not so read that law. I understand it to give to all citizens of the United States of overy race and color without regard to any previous condition of slavery the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, etc., and to full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizen?.

Marriage is, with us, a civil contract, inheritance is regulated by law. White persons and persons of color may by this act contract marriage; colored children may inherit. This proposition I do not dispute. But I deny that the act in question professes to regulate the legitimation of children, or that it provides how the fact of legitimation shall be established, or what acts constitute legitimation, or that it pretends to alter our laws upon the subject of inheritance. It simply does away with all distinctions on account of race, color or previous condition. The question of race or color does not in my opinion occur in the case. I treat the plaintiff and her children precisely as if they were white and free born. But I say that they are governed by the same laws that white persons are; and I say that as the law prohibited her marriage with Hart at the time their children were conceived, and as the law in existence when they were conceived declared that no child could be legitimated who was conceived when its parents could not contract marriage, the children of Hart and the plaintiff could not be legitimated.

The Civil Code declares between whom marriage is permitted, and between whom it is prohibited. It also declares what children shall and what children shall not be legitimate, and what children born out of wedlock may, and what children may not, be legitimated. These are questions which belong exclusively to our domestic life, with which Congress, in my opinion, did not seek to interfere when it passed the Civil Rights bill. It endeavored to, and it did, put every citizen upon a common footing as regards his civil rights, but it in no manner' that I can see, changed or attempted to change the laws of Louisiana with regard to the legitimation of children born of her citizens.

By our laws marriage between uncle and niece is prohibited. But this law might be repealed. Suppose that, with the law as it stands, an uncle has a child by his niece, and after the birth of the child the law prohibiting marriage between uncle and niece is repealed, and the father and mother of the child marry, acknowledging it in the act of marriage, is the child legitimated ? I think not. By the amendment to the Code above recited (217) children conceived by a woman between whom and the father marriage was prohibited were placed in the same category with children born of an incestuous or adulterous connection. A child conceived in adultery is adulterous, although at its birth its parents were free to marry. Marriage with acknowledgment does not legitimate the child so conceived. See Sirey, Codes Annotés, art. 331, p. 169.

Admitting, however, that plaintiff’s children could have been legitimated, a second question then arises. It is this: Have they been properly acknowledged? Acknowledgment, as I understand the law to legitimate a child, must be made in the form and manner prescribed by law, else it has no effect, just as certain formalities are required in the making of valid testaments, donations, etc.

Assume that Hart and the plaintiff were both white, and that when her children were conceived there was no impediment to her marriage with Hart, how, and how alone, could they have been legitimated? I think the question is answered by the terms of the law. They must have been legally acknowledged as their children, either before their marriage or by the contract of marriage itself. It is not pretended that the act of marriage contains the acknowledgment; and the act of twenty-fourth March, 1831, page 86, gives to natural fathers or mothers the power to legitimate their natural children by acts declaratory of their intention, made iflfore a notary and two witnesses. There is no such act as this in the record. In my opinion, if the parties in interest in this case were whites, the article 217 of the Code and the act of •twenty-fourth March, 1831, would prohibit their legitimation except under the forms therein prescribed.

The article 217 of the Code of 1825 is a reprint of the article 331 of the Code Napoleon, and the views which I have here expressed are sustained by Toulier, vol. 2, p. 132; by Marcadé, vol. 2, p. 43; by Demolombe, vol. 5, p. 339, No. 362; by Duranton, vol. 3, p. 174; by the Court of Cassation, Rep. G-en’l, supplément, vol. 2, p. 337, verbo Legitimation ; by the decision of Judge Martin in the case of Pigeau v. Duvernay, 4 Martin, 263.

The majority of the court seem to find authority for a contrary ■doctrine in the dissenting opinion of Mr. Justice Rost in the case of Dupré v. Caruthers, 6 An. p. 156. I have examined that ease, and judge Rost’s opinion with all the care which I can bestow upon it, and with all the attention which his acknowledged abilities command; I can not find in it any expression even which would, in my opinion, justify the conclusion that he thought children born out of wedlock could be legitimated in any other manner than those prescribed in article 217 of the Code of 1825, and the act of twenty-fourth March, 1831. The question was not before him. What he had to pass upon was not legitimation as the result of acknowledgment or marriage. The question was whether natural children could take by inheritance the property of a deceased parent if they had not been duly acknowledged, and it arose under arts. 913,916 of the Code. ' In my opinion, the vice of the opinion of the majority of the court consists in this, that the article relied on by them to support their conclusions is found under the second section of the third chapter of the Code, and relates to the acknowledgment of illegitimate children ; while the subject of legitimation is treated of in the first section of the same chapter. There is, I think, a wide distinction between legitimation and the acknowledgment of an illegitimate child. The laws which regulates their respective rights and duties are different. Every legitimate or legitimated child is an acknowledged child, ^but every acknowledged illegitimate child is not a legitimated child, for “illegitimate children, though duly acknowledged, can not claim the rights of legitimate-children.” This is the language of the 224th article of the Code which follows, in the same section, the article 221 relied on.

This case is of great importance, not so much on account of the interests involved, which are large, as on account of the principle which it settles. It has been twice before the court, and most ably argued, orally and by brief, by the counsel engaged on either side. It has been patiently and maturely considered by the court, and the result of our deliberations are now and finally given to the world. It is with regret that I find myself constrained to differ from my brothers. But the law and the authorities, as I read them, are plain before me, and I have nothing to choose from. I must go in the face of them all to agree with them, and this my duty forbids.

I know it seems hard that collateral kindred should be permitted to inherit in preference to the children of his body, no matter how begotten, and that such children should suffer from the result of a sin of which they were innocent, and which they could not prevent. But the law has put its ban upon them, white and black, and I have not the power to remove it. Hart knew when he was begetting these children what the consequences would be to them. If they suffer, it is from his fault, and not the laws, civil and moral, which he defied-Upon this subject I agree to what was said by Judge Preston in the case of Dupré:

“We know the object of the Legislature is, in the first place, to honor matrimony, which is of such incalculable importance to society; and, in the next place, to discourage concubinage, which is the cause of so much dissoluteness and evil. To prevent it the Legislature hold out the strongest motive, which can influence a parent — the legal disinherison of his offspring, unless he avows his shame before a notary public and witnesses, or in the face of the church. It is true,” continues this judge, “that legislation has ever failed in its object, for probably no one was ever deterred from concubinage by the consideration that his innocent offspring would be the victim of his guilt. And the only effect has been that the guilty parents have eaten the grapes, while the innocent children’s teeth, with tears-in their eyes, have been set on edge. But still it is the law, and must be obeyed until it is repealed.”

I therefore dissent from the opinion expressed by the majority of the court.

Wyly, J.,

dissenting. I dissent in these cases, and reserve the right to file my reasons hereafter.


source: Caselaw Access Project

author: Morgan, J.

license: Public Domain

text:
    No. 4765.
    Master and Wardens of the Port of New Orleans v. Robert W. Foster.
    This suit is brought under tlie second section of act Ho. 68, session of 1869, p. 67, which provides that it shall be unlawful for any person other than the master and wardens of the port of Hew Orleans, or their legally constituted deputy, to make any survey of hatches of seagoing vessels coming into the port of Hew Orleans, or to make any survey o-f damaged goods coming on board of such vessels, whether subk survey be made on board or on shore, or to give certificates or orders for the sale of such damaged goods at auction, or to do any other of the acts and things prescribed by law for the master and wardens to do and perform.
    The section above referred to is not unconstitutional. The Legislature may not have the power to force a vessel which comes to this port from sea to have a survey made of her hatches, but it has the right to designate by whom a survey shall be made, if one is asked for by the captain or owner of the vessel. This is not a tax upon commerce. It is only saying by what officer a certain act shall be performed.
    When the law says it shall be unlawful for any person to do a particular thing, the party who attempts to do it may be injoined by any person in interest.
    Appeal from the Superior District Court, parish of Orleans. Haw-1tins, J.

      Henry 0. Dibble and Billings, for plaintiffs and appellees. H. S. Oraig, for defendant and appellant.
   Morgan, J.

Petitioners seek to injoin the defendant from making any survey of the hatches of any seagoing vessel which may have ar rived or which may arrive at this port, and from making any survey either on board or on shore of any damaged goods which may have arrived or which may arrive on any seagoing vessel, and from giving any certificates of any survey and from doing any act which the master and wardens are authorized by law to perform.

The suit is brought under the second section of act No. 68, session 1869, p. 67, which provides that it shall be unlawful for any person other than the master and wardens of the port of New Orleans, or their legally constituted deputy, to make any survey of hatches of seagoing vessels coming into said port of New Orleans, or to make any survey of damaged goods coming on hoard such vessel, whether such survey be made on board or on shore, or to give certificates on orders, for the sale of such damaged goods at auction, or to do any other of the acts and things prescribed by law for the master and wardens to do and perform.

Defendant admits that by reason of his superior experience in marine matters, he is often called upon by parties in interest to inspect damaged goods and vessels and to report upon them, but that he has never sought or claimed to give any legal effects to his acts; that no law can compel private citizens to employ the plaintiffs when all parties in interest do not wish their services; that the act of 1869, and all other acts giving compulsory and exclusive powers to masters and wardens to inspect vessels and make surveys, to his exclusion, or to-the exclusion of any one else, is unconstitutional and void, and repugnant to the. constitution of the United States and to the constitution of the State of Louisiana.

Prom a judgment rendered against him he has appealed.

A case precisely similar to the one at bar, and between the same parties, was decided some time ago, and is to be found in 23 An. 750. In that case we said:

“The evidence shows that the defendants have entered into a contract whereby the said Poster was employed to examine and survey damaged goods in cases where they were interested, and that said Foster does not pretend to act under any commission or by virtue of any public office, but simply as the employé of the merchants and underwriters who may engage his services, and that he has not molested •or interfered in any manner with plaintiffs.

“We know of no law which prevents the defendants from entering into such a contract as the above, and we think the plaintiffs have wholly failed to show any right of action.”

But since this decision was rendered the Legislature passed the act under which the present action is brought. By it all persons except the plaintiffs are prohibited from doing the things the defendants claim they have the right to do. The question is, has the Legislature the •power to say who alone shall be permitted to make any survey of hatches of seagoing vessels coming into the port of New Orleans?

In support of the negative of this position, the appellant relies upon the decision of the Supreme Court of the United States in the case of the Steamship Company v. Port Wardens, 6 Wallace p. 31. That was a suit wherein the port wardens sought to recover from the company five dollars. Their claim wag founded on a section of the act of fifteenth March, 1855, which provides that the master and wardens of the port of New Orleans should be entitled to demand and receive, in ■addition to other fees, the sum of five dollars, whether called on to perform any service or not, for every vessel arriving in this port. The •court held that the act in question was a regulation of commerce; that it imposed a tax upon every ship entering this port; that the power to regulate commerce was given to Congress; that it was thus given with the obvious intent to place that commerce beyond interruption or embarrassment arising from conflicting or hostile State regulations, and that the act under which that suit was brought worked tbe very mischief against which the constitution intended to protect commerce among the States.

The first section of the act of sixth March, 1869, p. 67, provides that it shall be the duty of the master and wardens of the port of New Orleans, within twenty-four hours after the arrival and mooring at the wliarf or landing in the port of New Orleans of any seagoing vessel arriving with cargo, to go on hoard such vessel and offer their official services to make survey of the hatches of such vessel, and to perform the acts and services prescribed by law for them to perform.- And in •case such services so offered to such seagoing vessel shall be declined or refused, the said master and wardens shall be entitled to charge and collect from such vessel, her master and owners or consignees, the amount of three dollars for services so tendered.

Under the decision from 6 Wallace, just quoted, it would seem that this' portion of the act of 1869 would be unconstitutional. Admitting this to be so, it does not follow that the whole act is unconstitutional, and we would only be called upon to pass upon the question when it is presented by some person who is proceeded against for a violation of its provisions, as, for instance, if the suit for three dollars were to be instituted against the captain of a vessel to whom the port wardens had tendered their services, and been refused. But the present defendant can not set up the uneonstitutionality of this section, he not being proceeded against under it.

Is the second section of the act, which provides that it shall be unlawful for any person other than the master and wardens, or their legally constituted deputy, to make any survey of hatches of seagoing-vessels coming into the port of New Orleans, or to make any survey of damaged goods coming on board such vessel, whether such survey be made on board or on shore, or to give certificates or orders for the sale of such damaged goods at auction, or to do any other of the acts and things prescribed by law for the master and wardens to do and perform, unconstitutional? We think not. The Legislature may not have the power to force a vessel which comes to this port from sea to have a survey made of her hatches, but it has the right to designate by whom a survey shall be made if one is asked for by the captain or owner of the vessel. This is not a tax upon commerce; it is only saying by what officer a certain act shall be performed. This we think the Legislature has a right to do. It has the right, and has exercised it, to appoint harbor masters, port wardens, inspectors of various products, and it has never been held that the exercise of this right has been a tax upon commerce, or that it is a violation of the constitution.

The last question presented is, whether the plaintiffs are authorized under the constitution and laws of the United States and of this State to injoin the defendants from making surveys of the hatches of vessels, or to make surveys of damaged goods coming on board of vessels. Defendant contends that it is, because it deprives him of a means of support. We do not think so. • In the case of Shepherd v. Pyson, 14 An. p. 7, it was said: “There can be no doubt that an injunction is a proper remedy to prevent a person from doing an act which may be injurious to another, or which impairs a right claimed by that other. The occupation of a pilot for the port of New Orleans is lucrative, and is restricted by law to persons especially designated by the Governor of the State. It is therefore evident that the exercise of this business by a person not legally appointed, may be prejudicial to each and every one who is so appointed.”

A party may always claim the aid of the laws of his country to prevent a wrong, which, if inflicted, he could claim damages for. These laws would be lamentably defective if they could not prevent injuries as well as punish them.” 5 N. S. 501.

In the ease under consideration the master and wardens are appointed by the Governor. The occupation which they are authorized to perform is a lucrative one, and all persons are prohibited from exercising it except those who are appointed by the Governor. We think that when the law says it shall be unlawful for any person to do a particular thing, a person who attempts to do it may be injoined by any person in interest.

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

Justice Wyly, being absent, took no part in this decision

Rehearing refused.


author: Taliaferro, J. Morgan, J.,

text:
    No. 3068.
    Eliza V. Mahood v. Ida T. Tealza, Wife, et al.
    A large lot of furniture having been sold by plaintiff to defendant, for which part payment has been made to a considerable amount, plaintiff sues for the balance due on the same or for the restoration of the property. Defendant, avowing her own infamy, maintains that she is not bound by a contract contra bonos mores, as it was to the knowledge of plaintiff that the furniture was bought for the purpose of keeping a house of prostitution. The defense can not be accepted. The knowledge of the plaintiff of the immoral ns© for which the furniture was purchased did not violate the contract.
    Appeal from the Seventh District Court, parish of Orleans. Oollens, J.

      JBentinelc Egan, for plaintiff and appellant. A. Trudeau, for defendant and appellee.
   Taliaferro, J.

The plaintiff in this case sold to the defendant on the sixth January, 1868, a lot of furniture at the price of $5500, to be paid monthly, in sums of two hundred dollars each month, except for the last month for which one hundred dollars were to be paid. Twenty-eight promissory notes were furnished by the purchaser for these consecutive monthly payments. The contract was entered into before &• notary public. It was stipulated by the parties that after full payment of all the notes the furniture was to become the property of the defendant. The plaintiff in her petition sets out that $4000 of the price have been paid; that eight of the notes, making $1500, are unpaid; that defendant refuses to pay them, and has sold and disposed of a portion of the furniture, and is endeavoring to make away with the remainder, to defeat the plaintiff’s rights and to defraud her of all recourse for payment of the remainder due her on the contract. She prays judgment recognizing her as the owner of the furniture, and that she recover possession of the same, or that she have judgment for the amount of the eight unpaid notes with privilege upon the property.

The plaintiff caused the furniture to be sequestered, and subsequently released it by entering into bond and taking possession of it, the defendant having failed on her part to do so.

The answer is a general denial. The defendant admits having purchased certain furniture from the plaintiff, but avers that she was induced to do so by the fraudulent representations of the plaintiff in regard to the cost and value of the furniture, and that defendant was, through error on her part and fraud on the part of the plaintiff, induced to enter into the agreement to pay a price greatly exceeding the value of the property. But the defendant obviously places her defense mainly upon the ground of the alleged illegality of the contract growing out of its violation of morals and public order. She avers broadly and has made the averment good that both she and the plaintiff were at the time of the contract keepers and managers of public houses of prostitution; that the large lot of furniture purchased by defendant from plaintiff, was sold by the plaintiff and bought by the defendant with the express knowledge and purpose of both, that it was to be used in houses of that character. The defendant avowing her own infamy, invokes the maxim ex turpi pacto nil oritur actio.

Upon the ground that the contract was one contra bonos mores the court below set aside the sequestration and dismissed the suit. The plaintiff has appealed. The defendant, in her answer to the appeal, asks an amendment of the judgment by ordering that the property sequestered be restored to her, and reserving to her recourse r-v the sequestration bond.

In the case of Hubbard v. Moore 24 An. 591, the plaintiff sold furniture to the defendant, a keeper of a house of ill fame, with the knowledge that it was to be used in that house by the defendant. So in the case of Sampson Brothers v. Kate Townsend, 25 An. 78, the plaintiffs were aware of the destination of the furniture sold by them to the defendant, the keeper of a brothel. In these cases the court held that the knowledge of the plaintiffs of the immoral use for which the furniture was purchased did not vitiate the contracts. ^

In the case now before us, we see no reason why the same principle should not hold. We must, therefore, rejecting the plea of contra, bonos mores, examine this case on the merits, and determine it according to the law and evidence. The plaintiff, we think, has not clearly made out her allegation, that a large part of the furniture in question was clandestinely sold and disposed of by the defendant. The petition refers to an informal inventory of furniture made as appears by its-date on the first of June, 1867, and contrasting with it the inventory made by the sheriff at the time of the seizure under writ of sequestration, the plaintiff aims to show a large deficit in the amount. We do-not see that this is conclusive. The inventory of first June, 1867,. annexed to the petition is not signed by any one, and upon its face simply recites that it is a list or inventory of “furniture in houses No-30 Basin street.” This, it is shown, is one of the two houses which it seems contained furniture purchased by defendant; but the evidence does not sufficiently identify it as the same purchased by the notarial act passed six months afterwards. In that act it is declared that “sale is made of all the furniture in houses 30 and 28 Basin street, the purchaser being aware of every article therein contained, dispenses with enumerating them in this act.” It is clearly shown that, about the time the sequestration was taken out, the defendant was endeavoring to sell all the furniture which the plaintiff under the terms of the contract, claims to belong to her. Eight notes, amounting to $1500, it is shown, remain unpaid. For this sum the plaintiff should have judgment with privilege as claimed.

There are two bills of exceptions in the record, taken by the plaintiff to the admission of evidence to show the immoral character of the contract. It becomes unnecessary under our view of the case to examine them.

It is therefore ordered that the judgment of the district court be annulled avoided and reversed. It is further ordered and decreed that, the plaintiff have judgment against the defendant for fifteen hundred; dollars; that her lien and privilege upon the property sequestered be recognized and enforced, and that the same be sold to pay the aforesaid sum, the defendant paying costs in both courts.

Morgan, J.,

dissenting. Defendant had leased from the plaintiff a furnished house on Basin street. On the sixth January, 1868, she agreed to sell the furniture contained in the house to the defendant-when she should have paid her therefor $5500 for which sum she took notes payable monthly. The furniture remained in the possession of the defendant. Four thousand dollars of the agreed price have been paid; $1500 remain due. This suit is instituted by plaintiff who-prays to be declared the owner of the furniture referred to, and that she be put in possession thereof on her surrendering the unpaid notes -T or, that defendant be condemned to pay her the sum of fifteen hundred dollars. She also asks for judgment against the defendant’s husband. The furniture was also sequestered and a privilege thereon is-claimed.

The defendant answers that the whole contract is contra bonos mores. She avers that when she rented the house from plaintiff, furnished, it was to plaintiff’s knowledge, for the purpose of keeping a public house of prostitution, and that the furniture was purchased with the same view.

To establish these facts witnesses were offered by the defendant and their testimony was received by the court to which the plaintiff objected on the ground that it contradicted the written act between the parties. I fail to see wherein the contradiction lies, as nothing is mentioned in the act with reference to the purposes to which the furniture was to be put.

The evidence satisfies me that the allegations with reference to the purposes for which the house was rented and the furniture purchased from the plaintiff are true. She knew what business had been carried on in the house. She was in the habit of frequenting it. She went there at night, and in the morning would return and ask the inmates what amount of business had been done the night before. She gave a credit to the defendant with a -grocer to enable her to purchase wine which was to be sold to persons who visited the house. The business of renting furnished houses for the purposes of prostitution seems to have been regularly followed by the plaintiff. The one in question is the third which she rents for such purposes.

Under these circumstances it is not necessary, I think, for us to consider whether the public act passed between the parties was a sale, pure and simple, or whether it contained a resolutory condition or a suspensive condition. This is not the case of a dealer in furniture, selling his goods to the first comer and claiming the unpaid price thereof from his purchaser, as were the cases of Hubbard and Sampson & Brothers. 23 An. 59; 24 An. 625. It is the case of a woman who rents a house and sells the contents thereof to another woman with the knowledge that it has been, and the avowed intention that it should continue to be, used as a public house of prostitution, the business of which was encouraged by her presence and assisted with her means. The law, I think, leaves such people where it finds them, and takes no interest in their disputes.

I think the judgment should be affirmed.

Mr. Justice Howell concurs in this opinion.

Behearing refused.


author: Ludeling, C. J.

text:
    No. 4658.
    Gertrudiz Bonella and Caballero et als. v. Charles Maduel, Testamentary Executor, et al.
    In this instance the defendant offered in evidence the petition in the case entitled “Succession of Jose Maria Caballero,” and the judgment of the Second District Court and of the Supreme Court, decreeing her to be the legitimate child of the deceased. The plaintiffs objected on the ground that they were not bound by the judgment, not being parties to the suit.
    The objection was correctly overruled. It was not a judgment inter partes, but a judgment in rem, and is evidence of the facts adjudicated against the world.

    The judge a quo properly rejected the testimony taken by commission of witnesses not named in t]ie interrogatories or commission. The party called on to cross question witnesses when testimony is taken by commission, is entitled to be informed of the names of the witnesses in order to know how to shape his questions.
    The court below was right in not granting a continuance on the ground of the rejection of the above mentioned testimony, the party offering it not having made due diligence to get the evidence.
    The plea of res judicata must stand. It is well settled that a final judgment of a court of competent jurisdiction as to the status of a person, is res judicata as to all the world, and the force and effect of res judicata is to make black white, and the crooked straight.”
    Appeal from the Second District Court, parish of Orleans. Tissot, J.

      J. Ad. Bonier, Oharvet & Dwplantier, for plaintiffs and appellees. Geo. L. Bright, Bea, Finney & Miller, for defendants and appellants.
   Ludeling, C. J.

The plaintiffs, who are cousins of the deceased, Jose Maria Caballero, and residents of Spain, instituted this suit to annul and set aside a judgment of the Second District Court of the parish of Orleans, rendered on the twenty-ninth June, 1868, in the case entitled Succession of Jose Maria Caballero, on petition of Mrs. Maria Dolores Felicité Caballero, wife of Jose Maria Contó, by which the testament of the late Caballero was set aside, and his daughter, Maria Dolores Felicité Conté, was decreed to be legitimate and sole heir of his estate; to have the universal legatee under that will declared to be a person interposed for the benefit of a colored concubine of the deceased, and their natural child j to have the executor render an account, and finally to be declared the sole legal heirs of the deceased, and as such to. be put in possession of the estate.

Mrs. Conté, among other defenses, filed the plea of res judicata. There was judgment in favor of the plaintiffs and the defendant, Contó, has appealed.

On the trial the defendant offered in evidence the petition in the suit already named, and the judgment of the Second District Court and of the Supreme Court thereon, decreeing her to be the legitimate child of Jose Maria Caballero. The plaintiff objected on the ground that they were not bound by the judgment, not being parties to the suit.

The evidence was received. The ruling was correct. In Ennis v. Smith, 14 Howard’s Reports (p. 430), the court said: “The decree of the department of Grodno is an exemplified copy of that made on the seventh May, 1843, in the case of the heirs of Kosciusko, and contains the geneological chart of the descendants of the sisters of Kosciusko. It is not a judgment inter partes, hut a foreign judgment in rem, and is evidence of the facts adjudicated against the world.”

Another bill of exceptions was taken to the rejection of testimony, taken by commission, of witnesses not named in the interrogatories or commission. On crossing the interrogatories the defendant had objected to the taking of testimony of witnesses not named in the interrogatories, and he renewed the objection when the testimony was offered in evidence. We think the ruling correct. The party called on to cross question witnesses, when testimony is taken by commission, is entitled to be informed of the names of the witnesses, in order to know how to shape his questions. 12 R. 102.

Another bill of exceptions was taken to the refusal of the judge to grant a continuance of the cáse, after the refusal to receive the testimony of the witnesses whose testimony had attempted to be taken, under a commission and interrogatories, in which they were not named. The ruling was correct. The party had not used due diligence to get the evidence.

Other bills of exceptions were taken by the plaintiff to the reception of record evidence and other evidence to prove the legitimacy of the defendant, under the laws of Spain, etc., which had been admitted in evidence. We deem it unnecessary to examine them in detail, inasmuch as under our view of the law on the subject of this suit, our conclusions would be the same, whether that evidence were in or out of this record.

On the merits this case presents the same questions which this ■court decided in the case entitled Succession of Jose Maria Caballero, etc., before referred to in this opinion, and the evidence in the case is substantially the same in the two cases. A careful examination of the briefs and arguments of counsel has not enabled us to detect any error in our former opinions, even if the main question involved in this suit, the status of Mrs. Conté, were now an open question. But it is not.

It is well settled that a final judgment of a court of competent jurisdiction as to the status of a person, is res judicata as to all the world, and the force and effect of res judicata is “to make black white, and the crooked straight,”

It is therefore ordered and adjudged, that the judgment of the lower court be reversed and annulled, and that there be judgment in favor -of the defendant, Mrs. Conté, and rejecting the plaintiff’s demands with costs of both courts.

Mr. Justice Wyly, being absent, took no part in this decision.

Rehearing refused.


author: Howell, J.

text:
    No. 4779.
    D. Durac, Jean Bazus, transferee, v. Widow J. B. Ferrari, Louis Goulard, third opponent.
    The subrogation relied on in this case l>y Goulard, the third opponent, was not effected in conformity with article 2160, R. C. C. This article is very explicit. The act of borrowing and the receipt must be executed in the presence of a notary and two witnesses. In this instance the receipt was given by the sheriff, and should have been rejected on the objection made by the plaintiff. It is not an authentic act by law, and is not in the form of receipt required by the above mentioned article of the Civil Code. The subrogation therefore attempted in favor of Goulard, the third opponent, is without legal effect against any one having adverse claims such as the plaintiff or his transferee has shown himself to possess.
    Appeal from the Fourth District Court, parish of Orleans. Lynch, J.

      O. J$. Schmidt, for plaintiff and appellant. Albert Voorhies, for the third opponent, appellee.
   Howell, J.

In June, 1869, F. J. Robert sold to D. Durac and Widow J. B. Ferrari a lot of ground in New Orleans, part of the price being paid in cash, and two notes, secured by mortgage, given by the purchasers in solido for the balance, the lot being divided or partitioned in the act of sale between the said purchasers. At the maturity of the first note, Durac, being bound solidarity on it, paid it and issued executory' process for the half thereof against the portion belonging to-Mrs. Ferrari. Pending these proceedings the second note matured, and Robert, the vendor, issued executory process thereon against the property sold by him. On a rule taken by Mrs. Ferrari, the sheriff was ordered to sell the portion of each purchaser separately, and from the proceeds of each pay the half of the debt and costs. On the day before the sale one L. Goulard loaned to Mrs. Ferrari, by authentic act,, the amount due by her in the executory proceedings of Robert, which he, Goulard, paid to the sheriff, and took the following receipt:

“Received of Louis Goulard, for Mrs. Widow Ferrari (by act of subrogation), the sum of $1250, for one-half of the capital, interest and costs on the property of Mrs. Ferrari, as per writ of seizure and sale of F. J. Robert v. E. Duckerts, widow of J. B. Ferrari, et als., her said property being hereby released and the sale by sheriff withdrawn.”' Signed by the sheriff.

On the next day Durac paid his portion of the debt to the sheriff,, who two days after paid the whole to Robert’s counsel, taking the following ^eceipt:

“Francois J. Robert v. Elizabeth Duckerts, widow of J. B. Ferrari, et. al. — Seventh District Court, No. 8943. — Received, New Orleans, March 4, 1872, from C. S. Sauvinet, civil sheriff, the sum of $2252 68, amount of claim and interest in above entitled case.” Signed by the-attorney.

Subsequently tbe property of Mrs. Ferrari was sold under the executory proceedings of Durac, and a similar process taken out by Goulard, who filed a third opposition in the former, claiming the proceeds by preference over Durac, by virtue of his above mentioned payment, with subrogation, and a judgment thereon contradictorily with Robert in the suit of the latter against Mrs. Ferrari and Durac.

In answer to this opposition, Durac denies the validity and effect of the alleged authentic act of subrogation, the judgment thereon and the executory process taken out by Goulard, and avers that the only subsisting debt and mortgage upon the property or proceeds in question are evidenced by the note paid by him as co-debtor in soKdo, to one-half of which he is entitled out of the said proceeds in preference to all others, the note held by Robert having been paid, and the debt and its accessory, the mortgage, extinguished before the alleged judgment of subrogation was asked or granted.

Goulard contends that Durac can not in this way attack the validity of his (Goulard’s) mortgage rights, and invokes the authority of Hoy v. Scott, 22 An. 416, to support his position. All that was decided in that case, upon this point, is that Hoy could not contest the reality of the judgment set up against him in a concwrsus, or the validity of its consideration, because it was recorded prior to the origin of his debt. Such is not the case here. Durac’s claim existed before Goulard acquired any rights whatever in the controversy. Their rights are really of the same origin.

The only question for our decision is whether or not Goulard is subrogated to the mortgage rights of F. J. Robert, which he claims was effected under clause No. 2 of art. 2160 R. C. C., to wit:

“When the debtor borrows a sum for the purpose of paying his debts, and intending to subrogate the lender in the rights of the creditor. To make this subrogation valid, it is necessary that that act of borrowing and the receipt be executed in presence of. a notary and two witnesses j that in the act of borrowing it be declared that the sum was borrowed to make the payment, and that in the receipt it be declared that the payment has been made with the money furnished for that purpose by the new creditor. That subrogation takes place independently of the will of the creditor.”

This article is very explicit that the receipt as well as the act of borrowing must be executed in the presence of a notary and two witnesses, and the receipt adduced by Goulard in this case not being in that form should have been rejected on the objection made by Durac. The receipt given by the sheriff and relied on by Goulard is not an authentic act by law, and is not the form of receipt made necessary by the above article of the Code. The subrogation, therefore, attempted in favor of Goulard is without legal effect against any one having adverse claims, as Durac or his transferree has.

It is therefore ordered that the judgment appealed from be reversed, and that the opposition of Louis Goulard be dismissed, and the right of J. Bazus, transferree of D. Durac, to be paid out of the proceeds of the property of Widow J. B. Ferrari, sold herein, be recognized. Costs in both courts to be paid by opponent and appellee.

Rehearing refused.


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    No. 4998.
    State of Louisiana ex rel. Benton v. The Judge of the Superior District Court, parish of Orleans.
    The judge a quo can not be compelled by manda/nms to reduce the amount of the bond fixed by him to set aside a judicial sequestration. A judge may be compelled by mandamus to act, in a particular case, but having acted, his judgment can not be revised except on appeal. One can. not be compelled to change one’s judgment in a matter where one has the right to judge.
    Application for a writ of mandamus against the judge of the Superior District Court, parish of Orleans.

      Hays <& Hew for relator. John May, for respondent.
   Ludeling, C. J.

The real object of these proceedings is to compel the judge a quo to reduce the amount of the bond fixed by him to set aside the judicial sequestration. This, we think, can not be done by mandamus. A judge may be compelled by mandamus to act, in a particular case, if he refuses — but having acted, his judgment can not be revised except on appeal. One can not be compelled by mandamus to change Ms judgment in a matter where he has the right to judge. The answer shows that the defendant has done nothing in regard to the sequestration, since the appeal from the order granting the sequestration and appointment of a receiver, even if the appeal was taken within the legal delay to have the effect of a suspensive appeal. The answer of the judge is satisfactory, and the prayer of the relator is rejected, with costs of the proceedings..


author: Taliaferro, J.

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    No. 4992.
    Dunlop & McCance v. Henry D. Minor et al — Edward C. Palmer, Third Opponent.
    The taxes oí the years 1867 and 1868 became due at least by the first day of December of these years; they were assessed respectively in the same years — the taxes for 1867 in 1867 — those for 1868 in 1868.
    Under the revenue act, approved April 4, 1865, numbered 55, and entitled “An Act to provide for increasing the revenue of the State and raising means to pay the interest on the State debt,” the lien and privilege for taxes dated from the first Monday of July of the year for which the taxes were assessed, and continued for two years.
    Dut the revenue bill of 1868, approved on the twenty-sixth of October of that year, extended the continuance of the tax list to five years from the first of April of the year for which the taxes may be assessed. The last section of said act provides that it shall go into effect on the first day of January, 1869, and repeals, from and after its going into effect, all laws and parts of laws contrary to its provisions.
    It was competent for the Legislature to lengthen the term of prescription in regard to tax liens. The act of 1868 is not understood by the court as repealing the 32d section of the act of 1865, but only as extending the duration of the lien.
    The question of prescription must, in this case, be determined by the established rule for cases where a portion of the time to be computed has passed under one term of prescription, and the other portion has passed under another and different term. According to this method, it is found that the lien for the taxes of 1867 is prescribed, while the lien for the taxes of 1868 is not prescribed.
    Appeal from the Fourth Judicial District Court, parish of Ascension. Flagg, J.

      F. Uuffell, for plaintiffs and appellees. Tissot, Nicholls é Pugh, W. W. King, for Palmer, third opponent and appellant.
   Taliaferro, J.

Third opponent complains that the sheriff of the parish of Ascension refused to furnish him a deed of conveyance of a plantation purchased by him at sheriff’s sale, made under an order of seizure and sale, on the ground that the Recorder’s certificate of mortgages exhibited at the sale, showed that the State and parish taxes against the property for the years 1866, 1867 and 1868 were unpaid, and that the lien established by law in such cases was of higher grade, than the special mortgage under which the plantation was sold; the opponent in this case being subrogated to all the mortgage rights of the seizing creditor. The opponent contends that the lien alleged to exist is extinct by the prescription of two years, and no longer incumbers the property.

This is the only question presented in this case, whether the lien established by law against property to secure the payment of money due for taxes is, in the present case, lost by prescription. The court below decided that as to the taxes against the property in question for the year 1866, the lien is prescribed, but that it s^till subsists for the taxes of the years 1867 and 1868.

From this'judgment the opponent appealed.

The law invoked by opponent as alone applicable in this case, seems to be the Revenue act, approved fourth of April, 1865, numbered 55, and entitled “An act to provide for increasing the revenue of the State and raising means to pay the interest on the State debt.” Acts of 1865, p. 146 et serpientes.

The 32d section of this act provides, “That the taxes assessed by law on the property of any person or corporation are hereby declared a lien and privilege on the real property of such person or corporation, to date from the first Monday of July of the year for which they may be assessed, any alienation thereof or incumbrance thereon notwithstanding, and shall exist in favor of the State and parish for the respective amount of taxes assessed for each for two years, and shall be paid by preference to all mortgages and other incumbrances.”

By the 24th section of the same act it is provided, “ That the assessors shall complete three fair copies of their assessment rolls on or before the first Monday of October in each and every year, and shall affix to each a certificate,” etc.

The 25th section provides, “ That the assessment rolls thus certified by affidavits shall, on or before the first Monday of October of each year .be opened in the office of each assessor.” Notice is then to be given for thirty days for corrections of the roll by any -person aggrieved ; the whole to be completed and the rolls to be delivered by the first of January, to the auditors and the collector. A failure to comply with these directions subjects the assessors to severe penalties by section 28 of the same statute. The court will presume that the assessors accomplished their task and made their returns within the time prescribed by law. 1 An. 210.

It results then, we conclude, that the taxes of the years 1867 and 1868, became due at least by the first of December, of these years— that the taxes of these years were assessed respectively in the same years, the taxes for 1867 in 1867, those for 1868 in 1868. The words of the statute are plain, that “the lien and privilege shall date from the first Monday of July of the year for which the taxes were assessed,” etc. It is contended on the part of the opponent that the lien subsisting for the taxes of 1867, terminated on the first of July, 1869; that for the taxes of 1868 on the first of July, 1870. This would be true if the act of 1865 is alone applicable in this case. But in October, 1868, the Legislature, by the Revenue bill of 1868, approved on the twenty-sixth of October of that, year, extended the time of the continuance of the tax lien to five years from the first of April of the year for which thejimay be assessed.” The question now arises, what effect had that act upon the previous one of 1865 9 The last section of the act.of 1868 provides that it shall go into effect on the first of January, 1869, and repeals, from and after the time of its going into effect, all laws and parts of laws contrary to its provisions. It was competent for the Legislature to lengthen the term of prescription in regard to liens for the security of the payment of taxes, and we do not understand the act of 1868 as repealing the 32d section of the act ■of 1865, hut only as extending the time for which the tax lien should subsist from and after the going into effect of the act of 1868. The question of prescription, we apprehend must- be determined by the established rule for cases where a portion of the time to he computed has passed under one term of prescription and the other portion has passed under another and different term. According to this method it will he found that the lien for the taxes of 1867 is prescribed, while the lien for the taxes of 1868 is not prescribed. The sale of the South-wood plantation took place on the sixth of January 1872. In regard to the tax lien for the taxes of 1867, the time commenced to run from the first of July of that year — one year and six months had elapsed on the first of January, 1869, when the act of 1868 went into operation. To complete the prescription six months were required to run. The term of prescription being extended to five years, fifteen months the equivalent of six months were necessary under the act of 1868 to complete the prescription. It was completed, therefore on the first of April, 1870, near two years before the sale of the property. Tested by this rule, it will he seen that the lien for the taxes of 1868 was not prescribed at that time. Wo conclude that the judge a quo was in ■error in deciding that the lien subsisted at the time of the sale as well for the taxes of 1867 as for those of 1868.

It is therefore ordered and decreed that the judgment of the district court, so far as it decreed that the tax lien for the taxes of 1867 still subsisted against the Southwood plantation, sold on the sixth ” of January, 1872, under an order of court, be annulled and set aside, and in other respects, that it be confirmed,, the appellee paying costs of appeal.


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    No. 4973.
    State ex rel. S. D. Dixon, tutor, v. Judge of the Fifth District Court, parish of Orleans.
    A judgment signed in vacation is no judgment. Being no judgment, no appeal could be taken from it. Delator lias the right to see that the judgment of which he complains he regularly signed.
    Application for a mandamus the of the Fifth District Court, parish of Orleans.

      Forman, for relator.
    The judgment was rendered on the twenty-fifth of June. It was signed on the tenth of July.
   Morgan, J.

Belator, on the opening of the court in November, asked the judge to sign the judgment again, which he refused to do.

^ This rule >is taken upon him to show cause why he should not be ordered to do so. He has made no answer.

The judgment having been signed in vacation is, under the authority of Hernandez v. James, 25 An. 483, no judgment. Being no judgment, no appeal could be taken from it. Belator had the right to see that the judgment of which he complains should be regularly signed.

The rule is made absolute.


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    No. 4993.
    S. Fernandez & Co. v. Elias Miller.
    Tlie affidavit on ■which, the writ of provisional seizure issued in this case is insufficient. It was made by a person not shown to be one of the parties, or their attorneys, or a party to the suit.
    The affidavit authorized and prescribed by the law is one made by the party or his attorney. One made by any other person is not authorized by the law, and, as the formalities-required in the issuance and execution of these harsh remedies must be strictly observed, the affidavit in this instance must be held invalid.
    APPEAL from the Fifteenth Judicial District Court, parish of TerÍX rebonne. Guidry, Parish Judge of the parish of Terrebonne and acting judge of the Fifteenth Judicial District Court.

      J. B. Bobertson,

      Bush & Guión, for plaintiffs and appellants. Goode & Winder, for defendant and appellee.
   Howell, J.

The plaintiffs instituted suit against the defendant on a rent note for $2000, and caused the movables on the plantation rented to be provisionally seized. The defendant moved to dissolve the provisional seizure, with $1000 damages, on the ground “that the order granting the writ was signed by the parish judge, when there was no affidavit by the plaintiff or his attorney showing that the district judge was absent from the parish.”

The writ was set aside, and damages in the sum of $1000 allowed, from which plaintiffs appealed. The affidavit on which the writ was granted was made by one B. B. Barrow, not shown to be one of the plaintiffs or their attorneys, or a party to the suit. The affidavit authorized and prescribed by the law is one made by the party or his attorney. C. P. 128; B. S. 2027. One made by any other person is not authorized by the law, and as the formalities required in the issuance and execution of these harsh remedies must be strictly observed, 'the affidavit in this instance must be held invalid.

But we think the damages allowed are excessive. The defect is technical and does not affect the right of the plaintiffs to or the necessity for the writ, while the evidence shows that a seizure of the same property was made at the same time, or a very few days previously, on a writ in another suit, by another party, on a rent note due a year or-two before and given under the same lease as the one in this suit. It is clear, then, that any damage that may have resulted to the defendant from the seizure of his property, affected by the lessor’s privilege and pledge, would have been caused whether the writ in this case issued or not. All the damages he can properly claim from the plaintiffs, under the circumstances, is a reasonable fee of counsel for setting aside the writ, the expenses of which will have to be borne by the plaintiffs. We think afee of $100 is ample in this case for the services of counsel in having the writ set aside.

No objection having been made to the investigation on the demand for damages, it is too late now to urge any.

It is therefore ordered that the judgment for damages be reduced from $1000 to $100, and as thus amended the judgment appealed from be affirmed. Defendant and appellee to pay costs of appeal.


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    No. 4999.
    State ex rel. Richard Taylor v. Judge of the Superior District Court, Parish of Orleans.
    This court can only mandamus a district judge for the purpose of maintaining and enforcing-its appellate jurisdiction.
    Application for a mandamus against the Judge of the Superior District Court, parish of Orleans.

      WilKam S. Sunt for relator. Judge Sawldns, respondent, m jprojpria jpersona.

   Taliaferro, J.

The relator prays that a writ of mandamus be issued by this court compelling the Judge of the Superior District Court to order the clerk of the court and the receiver by said court appointed, to forthwith pay over to relator the revenues, tolls and fruits received by them in virtue of the writ of sequestration issued in said court in the case of The State v. Richard Taylor, and under the orders of the said court.

| On a rule to show cause the respondent sets up various grounds why i the mandamus should not be issued. The second in order, and the ' one we deem having the greatest weight is, “that this court can only I mandamus a district judge for the purpose of maintaining and enforcing ¡its appellate jurisdiction; that the case presented by the petitioner for the mandamus in no way affects the appellate jurisdiction of this-court, or interferes with it.”

; Considering this to be the proper view of this case, it is ordered «that the rule be discharged at relator’s cost. \


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    No. 4957.
    State ex rel. Heirs of Gee v. The Parish Judge of Claiborne.
    The question in this ease ig whether the judge a, qxto had the right to refuse a suspensive appeal.
    This is not the case of a contest as to which of several applicants shall he appointed adminis* trator of a succession, where the necessity of an administration is not questioned, and where the appointment under the law takes effect notwithstanding an appeal.
    The question is whether there was any necessity for an administration at all. From a judgment deciding this against them, the heirs had a right to a suspensive appeal to this court.
    Application for a mandamus against the Parish Judge of the parish of Claiborne.

      Ji'gnn & JXa/yes, for relators.
   Morgan, J.

Mrs. Gee died on the eleventh December, 1873. D. B. Harrison, public administrator for the parish of Claiborne, applied to the parish court to be appointed administrator. His application was made on the eleventh December, 1873. He represented to the court that Mrs. Gee had died without leaving any will, and that she had left no heirs, present or represented, in the State.

On the twentieth December, certain parties claiming to be the heirs ■of Mrs. Gee, opposed his application, and prayed to be put in possession of the succession, they proposing to accept the same purely and unconditionally. '

Before their opposition was tried, the public administrator presented •another petition to the parish court, alleging that his first application was inadvertently made, and praying to be put in possession of the ■estate at once. The order was granted. From this order, which is a judgment, the parties claiming to be heirs asked for a suspensive appeal, which was refused, whereupon they apply to us for a mandamus against the judge praying that he be ordered to grant the suspensive appeal.

They are entitled to it. This is not the case of a contest as to who ■of several applicants shall be appointed administrator of a succession, where the necessity of an administration is not questioned, and where ■the appointment under the law takes effect notwithstanding an appeal. The question is was there any necessity for an administration at all, and from the judgment deciding this question against them, the heirs had a right to a suspensive appeal to this court.

The rule is made absolute, and the mandamus is to be issued as prayed for.


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    No. 3061.
    Edward Conery v. J. W. Cannon, et al.
    In March, 1868, judgment was rendered in the United States District Court against the steamboat Magenta, Captain Leathers ag principal, and against his sureties on a release bond. The plaintiff was one of the sureties. Leathers desired that an appeal be taken, and that plaintiff, Conery, should sign the appeal bond, but Conery was anxious to be released from said bond and from the appeal bond to be signed, and from all liability on the same. Whereupon, to induce said Conery to sign the appeal bond, the defendants gave the bond on which this suit was brought, and the condition of which was to hold Conery harmless from any and all liability on the two bonds, refund to him any sum he might be compelled to pay by reason of the release and of the appeal bonds, and cause the said bonds to be canceled and annulled within one year, and in default thereof to discharge the claim of the libellant in the suit in which appeal was taken.
    Defendants plead want of consideration; but Conery may have thought that his interests would be best subserved, at the time and under the circumstances, by taking such a step as would then secure his recourse against the principal on the return bond upon which judgment was already rendered, and that the delay of an appeal would endanger such recourse and fix absolutely his individual liability. It is to protect him against such contingency and release him from all liability in the matter that the bond was given. It constitutes a valid consideration for an obligation.
    The amended answer of the defendants shows that the judgment from which an appeal had been taken was reduced, and, after becoming final, was paid by plaintiff, Conery, who caused himself to be subrogated to the rights of the libellant. This does away with the plea of the defendants that the suit was premature, inasmuch as nothing had been paid by plaintiff at the time of the instituting of said suit. The dofect was cured if it existed.
    Under the stipulations of defendants’ bond, plaintiff was not compelled, before he pursued them for the reimbursement of what he had paid, to exhaust all recourse against the principal on tho release bond.
    Appeal from the Fifth District Court, parish of Orleans. Lea,ti-mo nt, J.

      Somov & Benedict, for plaintiff and appellee. B. <& S. Ma/rr, for defendants and appellants.
   Howell, J.

In March, 1868, a judgment was rendered in the United States District Court for twelve thousand dollars and costs against the steamboat Magenta, and against T. P. Leathers, as principal, and E. Conery, J. H. Carter and J. W. Beeve, as sureties on a release bond. From that judgment Leathers desiréd to take an appeal and desired that Conery should sign the bond for the same, but Conery was desirous of being released from said bond and from the appeal bond, to be signed, and from all liability on the same. Whereupon the defendants in this suit, who became sureties on the appeal bond, gave to Conery the bond on which this suit is brought. The condition of said bond is to hold Conery harmless from any and all liability on the two bonds above referred to, refund to him any sum he might be compelled to pay by reason of said bonds, and cause the same to be canceled and annulled within one year, and in default thereof to pay to him a sufficient sum to discharge the claim of the libellant in the suit to be appealed.

The defendants contend, first, that the obligation sued on was without a consideration because the consideration expressed in the petition and the bond sued on was that Conery would sign the appeal bond, which there was no necessity that he should do, and the act of signing imposed no new nor greater obligation on him, being bound whether he signed or not; and they refer to 5 R. 60; 11 An. 113 ; 2 How. 240. These authorities, as well as others, hold that it is unnecessary for the appellant to sign the appeal bond, it being enough that it be signed by a sufficient surety. But in this case Conery wished to be released from his liability on the release bond on which he was surety, and on which judgment was rendered against him with his principal and cosureties, and it was to protect him from such liability that the bond, now in suit, was given to him by the defendants. They expressly bound themselves to hold him (in the language of the bond) “harmless from any and all liability on said bonds, and to refund to him any sum of money he may be compelled to pay by reason of said bonds, and cause said bonds to be canceled within one year from the date hereof, and in default thereof shall pay into his hands a sum of money sufficient to pay and satisfy any and all claims of the said libellant, at the end of one year from date hereof.” This refers to the release and appeal bonds.

Conery may have thought that his interests would best be subserved at the time and under the circumstances, by taking such a course as would then secure his recourse against the principal on the release bond, upon which judgment was already rendered, and that the delay of an appeal would endanger such recourse and fix absolutely his individual liability. It was to protect him against such contingency and release him from all liability in the matter that this bond was given, and which, in our opinion, constitutes a valid consideration for an obligation.

The defendants next contend that plaintiif has not put them in default and had not, at the institution of this suit, been compelled to pay anything, and hence had no cause of action.

Even supposing the suit may have been premature, as urged, the amended answer of the defendants shows that the judgment, from which an appeal had been taken in the libel suit, was reduced, and after becoming final was paid by plaintiff, Conery, who caused himself to be subrogated to the rights of the libellant.

This, by their own showing, put Mm in a position to demand of them the obligation of their bond to refund to him the amount so paid. Under the stipulations of said bond he was not compelled to exhaust all recourse against the principal on the release bond, before he could pursue them. Upon the record before us they are properly held to a performance of the obligations of their bond in favor of plaintiff.

Judgment affirmed.

Rehearing refused.