author: Marr, J. DeBlanc, J.

text:
    No. 6564.

      Frank Watson vs. Mrs. E. F. Bondurant.
    Where a person has a domicile in a State, and tho evidence shows that lie resides there with the intention of remaining, he is, in contemplation of the laws providing for tho removal of causes from State to Federal courts, a citizen of that State.
    Citizenship in a State is not lost by a temporary absence; but a prolonged residence in another State, accompanied by other acts, or by declarations showing an intention to acquire a domicile in the latter State, will forfeit citizenship in the former State, and preclude its boing set up in a suit.
    To qualify in this Slate as natural tutrix, or as testamentary executrix, without giving bond, is strong proof of an intention to permanently reside here, and is uttorly incompatible with the claim of citizenship in anothor State.
    A merely auxiliai'y proceeding, by which a third person comes in by way of injunction to protect his property from being seized and sold under a judgment to which he was not a party, is not removable, under the act of Congress of March 3,1876, from the State to the Federal court.

      No mortgage has any effect as to third persons unless recorded; and save in the single ease of the minor’s mortgage on the property of the tutor, every mortgage ceases to have effect, except as to the parties to it, unless re-inscribed in ten years from the date of its original inscription. Neither the existence of the pact demora alienando in a mortgage, nor the pendency of a suit to enforce the mortgage obviates the necessity of its inscription, or its ro-inseription.
    To confirm a judgment by default, involving the assessment of damages, a jury is necessary.
    APPEAL from the Thirteenth Judicial District Court. Hough, J.

      Merrick, Race & Foster for plaintiff and appellee. S. R. & C. L. Walker, for defendant and appellant.

      This decision and the decision in tho case of Schwartz vs. the Crescent City R. R. Co. should have been published in the 29th Annual, but wore accidentally omitted.

   The opinion of the court was delivered by

Marr, J.

Walter E. Bondurant died at his domicile at Natchez, Mississippi, in June, 1874, leaving a will by which he devised his entire estate to his wife, Mrs. Ella F. Bondurant, whom he appointed sole executrix.

The will was admitted to probate in the proper court, at Natchez, on the sixteenth June; but it does not appear whether there was any property or estate in Mississippi to be administered ; nor that the executrix qualified there.

On the nineteenth Juno Mrs. Bondurant presented a petition to the parish judge of Tensas parish, Louisiana, with a copy of the will and the proceedings of the chancery court at Natchez admitting it to probate, in which it is stated that she was then residing in New Orleans ; that she was pregnant; and that deceased had left, in Tensas parish, a succession, consisting of movables and immovables, and debts. She prayed that a curator be appointed for her unborn child ; and that she be permitted to qualify as testamentary executrix. Her father was appointed and qualified as curator; and she qualified as executrix under the will.

In June, 1875, Mrs. Bondurant caused to be revived, in her name, as testamentary executrix and as natural tutrix of her posthumous son, a judgment which her husband had obtained in the district court of Tensas for a large amount against John, Albert, and Horace Bondurant; and upon this judgment she caused an alias writ of execution to be issued.

Under this execution the sheriff seized a tract of land in Tensas, in the possession of Frank Watson, who claimed it as owner. Watson enjoined; and the citation and writ of injunction were served at the domicile of Mrs. Bondurant, in New Orleans, on the thirtieth June, 1875.

In October Mrs. Bondurant filed a petition, under the act of Congress approved March 3, 1875, for the removal of this injunction suit into the Circuit Court of the United States, alleging that she was a citizen of the State of Mississippi. Her affidavit to this petition was sworn to before a justice in New Orleans on the thirteenth September.

Watson opposed the removal on the grounds : that the succession of Uondurant, which was opened in Tensas parish, was the defendant; that when Mrs. Bondurant applied for the executorship she declared herself -to be a resident of the State of Louisiana; and that she was an officer of the probate court of Tensas, and subject to its jurisdiction; that when the citation and injunction in this case were served on her she was a resident of the State, and the service was made at her domicile; and -that the pretended removal to and citizenship in Mississippi were a mere ■subterfuge and fraudulent evasion of the law, and adopted for the purpose of removing this cause into the United States Court.

On the trial of the preliminary question of removal, it was proven -that Walter E. Bondurant lived and died at Natchez; that Mrs. Bondurant, before her marriage, lived with her father in New Orleans ; that she returned to her father’s, the domicile of her origin, after the death of her husband, and remained until the birth of her child, the precise date of which is not shown. The mortuary proceedings in the succession of her husband were also offered in evidence ; and it was proven that she made affidavits, which -were filed in the cause, before justices of the peace in 'New Orleans in July and September.

The district judge declined to order the removal. A motion was made for a new trial, in support of which one of the counsel of Mrs. Bondurant filed his affidavit, in which it is stated that he had discovered since •the trial that he could prove by a member of the bar, who had testified on the trial, that Mrs. Bondurant had consulted him as to whether her residence in the State of Louisiana would forfeit her citizenship in the 'State of Mississippi; that on his advising her it would not, she remained in Louisiana, intending to retain her citizenship in the State of Missis■sippi; and that this consultation was had with reference to this very case of Watson vs. Bondurant.

The new trial was not granted; and Mrs. Bondurant filed a protest against any further proceedings in the cause. A judgment by default was taken against her, which was confirmed on proof, and the injunction perpetuated as prayed for; and she has brought the case here by .■appeal.

There is no question as to the sufficiency of the value in dispute; and the right of removal depends upon two questions only:

1. Was Mrs. Bondurant a citizen of the State of Mississippi;

2. Is this such a suit as may be removed into the Circuit Court of the United States.

First. We understand that a person who has a domicile in a State, who resides in a State, animo manencli, if he is not an unnaturalized alien, is a citizen of that State within the meaning of the Constitution of "the United States, and of the several acts of Congress conferring jurisdiction on the Federal Courts, and providing for the removal of causes from the State Courts into the Circuit Courts. The Fourteenth Amendment settles this beyond doubt. When the domicile or residence is once fixed in a State, the citizenship thus acquired is not lost by a temporary absence, animo revertendi; but it is lost, unquestionably, by prolonged absence, and other acts indicating the intention to acquire a domicile elsewhere, accompanied with actual residence at the new domicile.

Before Mrs. Bondurant’s marriage her domicile in law and in fact was at her father’s residence, in the city of New Orleans. When she married she acquired, immediately, the domicile of her husband; and she could have none other. The death of her husband relieved her of all the disabilities of marriage. She became sui juris; and had the right to reside and to acquire a domicile wherever she chose. We think she indicated her choice unmistakably, and without delay.

The will of Walter E. Bondurant is dated June 10,1874. It was filed for jjrobate on the fifteenth; admitted to probate on the sixteenth ; copy of the will and proceedings were certified on the seventeenth ; and on the nineteenth Mrs. Bondurant’s petition was presented to the parish court of Tensas, praying for letters as testamentary executrix. In this petition she describes herself as “Widow of Walter E. Bondurant, late ol Natchez, State of Mississippi, (petitioner now residing in New Orleans, in this State.)”

It was not by any error or inadvertence on the part of the attorney who drew the petition that this statement was made. By our law the testamentary executor who resides in the State is not required to give security ; but whenever the testamentary executor, that is, the executor named in the will, is domiciled out ©f the State, the judge shall only grant him letters on the execution of his bond, with a good and solvent security, for such a sum and under such conditions as are required by law from dative testamentary executors, that is, executors not named in the will but appointed by the court. Act of 1842, section three, page 300; re-enacted in 1855, No. 280, page 309; and in 1870, Revised Statutes, page 287, section 1460. The dative executor is bound to give security for one fourth over and above the amount of the inventory. R. C. C. art. 1679, Civil Code of 1825, art. 1672; R C. C. art. 1127, Civil Code of 1825, art. 1120. The inventory of the movable and immovable property amounted to $30,062, not including the large judgment in this case, which was for something over $30,000 ; so that a bond for about $38,000 ■would have been required.

In order to retain the executorship; it was necessary for Mrs. Bondurant to remain in Louisiana; because the same law requires the judge to appoint a dative executor whenever the executor named in the will is absent. Revised Statutes, page 286, section 1459. The act of 1847, Revised Statutes, page 288, section 1471, permits tutors, executors, etc., “who only wish to be absent for a time,” to retain their offices by leaving a general and special power of attorney with some person residing in the parish in which the succession is opened, or in an adjoining parish, to represent them in all their acts of administration, which power must be registered in the office of the parish recorder.

In the Succession of McDonogh, 7 An. 473, a number of citizens of Louisiana and four residents of Baltimore were named in the will as executors. The Louisiana executors and those residing in Baltimore qualified without giving security. This court held that the appointment of the non-residents without security could not be maintained ; and it was vacated.

In Yerkes vs. Brown the testator named Ms brother, who resided in Philadelphia, as his executor; and he came to New Orleans, rented an office, and qualified as a resident of Louisiana. Shortly after his appointment he returned to Philadelphia, leaving power of attorney with Hennen, who administered several years in his name. The court held that the law was imperative, requiring the executor who is not a resident of the State to give security; and that it is only when the absence is temporary that the executor can retain his office by delegating his powers to another. 10 An. 94.

Mrs. Bondurant appears in this litigation as natural tutrix of her son; and this office, like that of executor, requires residence in the State, only’' temporary absence being permitted. R. C. C. art. 314. The tutorship must continue until the majority of the child, or until after he attains his eighteenth year, when he may. be emancipated. While she is testamentary executrix she can not reside out of the State of Louisiana; but she may close her administration as executrix, and administer as natural tutrix alone. She would still be obliged to reside in the State ; and whatever her wishes and intentions might be for the future, she has accepted offices, duties, and responsibilities wholly incompatible with residence elsewhere; and which make it impossible for her to be in any sense a citizen of the State of Mississippi.

The appointment of guardians for minors belongs to the tribunals of the domicile; and if Mrs. Bondurant had continued after the death of her husband to reside in Mississippi, to have a domicile there, that would have been the domicile of her child; and she would have been bound to apply for guardianship to the proper court of that State. She assumes an office unknown to the law of Mississippi, which is peculiar to the law of Louisiana, that of natural tutrix, which is the repeated assumption on her part of residence, domicile in the State of Louisiana; and this office enables her to administer the estate of her child without giving security, which is required by law of guardians in the other States generally.

If the mere intention to retain a domicile in a State different from that in which a person actually resides would suffice in any case to preserve citizenship, it certainly can not have that effect when the person accepts offices and trusts at the place of residence which are not granted to citizens of other States except on onerous conditions. Mrs. Bondurant could not have qualified as testamentary executrix without giving security, except by satisfying the judge that she was a resident of the State of Lousiana. We will not do her the injustice to suppose she intended to obtain all the privileges and advantages of an actual residence in Louisiana by an untrue statement in a solemn judicial proceeding. A mere visit to' her father, with the intention to return to Natchez in a short time, would not have authorized her to claim a residence in Louisiana for the purpose of obtaining letters as executrix without giving security. She ceased to be a resident of Mississippi immediately after the death of her husband. She had no means of preserving a domicile or citizenship in Mississippi except by residence; and it is not shown that she has spent a day at Natchez since she described herself in her petition to the parish-judge as “ now residing in New Orleans.” She has concluded herself on this point by her public acts and declarations, by her continued residence in Louisiana, not less than by her acceptance of the executorship and tutorship. ' If Mrs. Bondurant is a citizen of Mississippi she is not legally the testamentary tutrix of her husband’s will, and the parish court of Tensas would be bound to vacate the appointment or to require her to give security; nor would that court have had the power to recognize her as natural tutrix, since the jurisdiction to appoint a guardian is vested in the proper court of the domicile. The consequence would follow that she is not legally qualified to enforce the rights of the succession in these representative capacities.

Our conclusion is, that Mrs. Bondurant can not be a citizen of the State of Mississippi for the purpose of giving jurisdiction to the Circuit Court of the United States, nor within the meaning and intent of the’ laws and Constitution of the United States, and of the State of Louisiana, while she is exercising offices and trusts in Louisiana which require actual residence in the State.

Second. We entertain no doubt that the act of March 3,1875, under which the removal was demanded in this case, was intended to provide for and regulate the entire subject of the removal of causes from the State courts into the Circuit Courts. The first section of the act enlarges- and extends the original jurisdiction of the Circuit Courts up to the full limits of the judicial power granted by the Constitution of the United States. This jurisdiction is declared to be concurrent with that of the State courts; and the jurisdiction exclusive of that of the State courts is limited to crimes and offenses cognizable under the authority of the United States, and appeals from the District Court.

The second section of the act relates exclusively to those cases which .may be removed from the State courts into the Circuit Courts ; and it is in great part a mere repetition of that portion of the first section which relates to the original jurisdiction concurrent with that of the State courts. There is no doubt that any suit of a civil nature, at law or in equity, falling within the original cognizance of the Circuit Courts under this act, may be removed from a State court on the terms and conditions prescribed in this act. Without intending so to decide now, because we do not find it necessary, we incline to the opinion that no suit can be removed under this act from a State court into the Circuit Court which could not have been brought in the Circuit Court by original process.

This case differs from that of Goodrich vs. Hunton, just decided, in this respect, that in that case the litigation was between the same persons who were parties to the original suit,-while in this case Watson was a stranger to the original suit. It differs also from Turnbull’s case, 16 Wallace, in that in this case there was a petition filed, and citation and a writ of injunction were issued and regularly served on the defendant. But it is precisely like Turnbull’s case in these essentials:

1. That under execution on a judgment in a suit to which Watson was not a party his property was seized and was about to be sold;

2. That he sought relief in the only court in the State which had jurisdiction under the law of the State ;

8. That he proceeded in the form prescribed by the law of the State.

It will be observed that in the Bank vs. Turnbull the removal was under the act of March 2, 1867, which gives the right of removal to the citizen of a State other than that in which the suit is brought, whether he be plaintiff or defendant in “a suit,” any suit, involving the requisite amount, in a State court, in which there is a controversy between him and a citizen of the State in which the suit is brought; and the attention of the court was directed to the fact that the proceeding under review was not a suit, but was in the nature of a motion. The court declined to consider that question, because, “ conceding it to be a suit, .and not essentially a motion, wo think it was merely auxiliary to the original action, a graft upon it, and not an independent and separate litigation.” There is no escape from the conclusion, if the decision of the court was correct in this case, that where a third person, not a party to a judgment, intervenes to protect his property, seized under execution on that judgment in the court from which the process issued, that court alone has jurisdiction of the controversy; and that this proceeding, “ conceding it to be a suit,” is not removable into the Circuit Court ratione materice.

This decision was under the act of 1867, but the language of that act in describing what may be removed — “ a suit ” — has a much broader meaning and extent than the words used in the second section of the act of 1875, in describing what may be removed — “ any suit of a. civil nature at law on in equity.” If there can be a suit in a State court in which there is a controversy between a citizen of that State and a citizen of another State, not of a civil nature, or ah anomalous nondescript, not at law or in equity, it would seem, ex vi termini, that it must come within the act of 1867, and be removable under that act, all the other requisites concurring; and it is equally clear that such a suit would not fall within the restricted terms of the act of 1875, and would not be removable under that act.

If, therefore, the proceeding on the part of Turnbull & Co., by whatever name it may be called, was not removable under the act of 1867, as the court expressly decided it was not, it is because a suit means an original suit, hot an auxiliary, dependent, supplementary proceeding, by which a third person interposes to prevent the sale of his property, seized under execution, in satisfaction of a judgment in the original suit to which he was a stranger. If such a proceeding was not a suit within the meaning of the act of 1867, and therefore was not removable, there is no logic by which it can be shown that the proceeding on the part of Watson in this case is any suit of a civil nature, at law or in equity, within the terms of the act of 1875, and that it is, therefore, removable under that act.

There is another reason in this case, which did not exist in Turnbull’s case, and which we think conclusive. The whole object of this proceeding is to prevent the sale of Watson’s property, seized under execution, •and to do this a writ of injunction, pendente lite, to be made perpetual toy final decree, was indispensable. Without the power to stay by injunction proceedings in a court of the State, no tribunal could take cognizance of this proceeding. Under the act of Congress of March, 1798, Revised Statutes, section 720, the Circuit Court could not take jurisdiction in such a case by removal from a State court, as was expressly decided in Diggs & Keith vs. Wolcott, 4 Cranch., nor by original process, as was 'expressly decided in Haines vs. Carpenter, 1 Otto ; and as we have just had occasion to say in Goodrich vs. Hunton, this prohibitory law.places such a proceeding as this beyond the power and jurisdiction of the Circuit Courts.

The reasoning and authorities cited in Goodrich vs. Hunton are equally applicable to this case, and are referred to and adopted here without being repeated. We conclude that the District Court properly refused to grant the order of removal, because of the citizenship of the parties, and because this proceeding is not such a suit as may be removed from a State court into the Circuit Court.

On the Merits.

The Pleasant View plantation, situated in Tensas parish, consisting of 1400 acres of' land and a large number of slaves, were inherited by John Bondurant, Horace Bondurant, Albert Bondurant, and their nephew, Walter E. Bondurant, a minor. To effect a partition, the entire property was sold at public sale, by the sheriff, for three fourths cash, the other fourth, the minor’s share, payable on his attaining his majority, in 1862, with interest at seven per cent, payable annually. The property was purchased by the major heirs, and the minor’s share was $37,118 50. To secure this a mortgage was reserved in the sheriff’s deed, of date fourth December, 1852, in which the clause was inserted by which the purchasers obligated themselves “not to alienate, deteriorate, or incumber said property to the prejudice of said mortgage and this deed was recorded on the sixth December, 1852 ; and was re-inscribed on the eighth September, 1865.

By subsequent partition a tract of 165 acres, part of the 1400 acres constituting the Pleasant Yiew plantation, fell to John Bondurant; and on the thirtieth November, 1854, by public notarial act, duly recorded, he sold this tract to A. C. Watson for $5775, or thirty-five dollars an acre. Prank Watson derives title through A. C. Watson ; and it was proven that John Bondurant, from the time he acquired up to the date of his sale to Watson had public, peaceable, notorious possession; and after that time the Watsons had possession in like manner.

The interest was paid up to December 4, 1862 ; and in March, 1854, a payment of $5018 16 was made, which was credited on the capital sum. In November, 1867, Walter E. Bondurant recovered judgment for the debt with interest; and at sheriff’s sale, under execution, he purchased the Pleasant View plantation for $4478, less than half the interest due. Watson was in possession of the small tract purchased of John Bondurant, and Walter E. Bondurant, then a citizen of Mississippi, brought suit against him in the United States Circuit Court in New Orleans to oust him. The case went to the Supreme Court of the United States ; and it was decided that Bondurant had not acquired this tract at the sheriff’s sale, because the sheriff had not seized it as the law required. See the case, 21 Wallace. This is the property seized under the alias writ, and the subject matter of this litigation.

Plaintiff, Watson, maintains that the mortgage in favor of Walter E. Bondurant had lost its effect as to him by the failure to have it re-inscribed before the expiration of the ten years, as required by article 3333 C. C., article 3369 of the Revised Civil Code.

Defendant contends that re-inscription was not necessary in this case, because Watson is charged with notice by the pact denon alienando, and that the mortgage in favor of a minor need not be re-inscribed.

We had occasion lately to examine the question of inscription and re-inscription, so far as third persons are concerned, in the case of John I. Adams & Co. vs. Thomas Daunis, No. 6532, decided on the second inst., and we do not propose now to repeat what we said in that case. We remark, however, that subsequent investigation has only served to confirm the views we then expressed :

First — That under the positive law of Louisiana, as contained in the Code and the Statutes, nothing supplies the place of registry, or dispenses with it, so far as those are concerned who are not parties to the mortgage;

Second — That when ten years have elapsed from the date of the-inscription, without re-inscription before that time, the mortgage is without effect as to all persons whomsoever who are not parties to the mortgage.

We understand the effect of the pact de non alienando to be this : Where a mortgage contains this stipulation, the sale by the mortgagor does not prevent the mortgagee from proceeding by executory process, and he need give no notice to the purchaser. The proceeding by executory process is a proceeding in rem; and if the title under which the mortgagor claims is such that he may thus proceed in rem, he need not notice any subsequent alienation of the mortgaged property by his mortgagor ; just as in proceeding in admiralty against a ship, no subsequent change of master or of owner need be noticed by the libelant, who proceeds against the thing itself which is liable to him.

A little reflection will show that the pact de non alienando contains nothing that the law does not imply in every mortgage. The mortgagor by the act of mortgage binds himself personally, and binds his property for the debt; and he necessarily obligates himself morally, and in law, not to deprive the mortgagee of the benefit of the security by alienating or deteriorating or incumbering the property to his prejudice. If the mortgagee records his mortgage, it is not in the power of the mortgagor to' alienate or to incumber the property by any subsequent title-which will impair or affect the mortgage.

If the mortgagee, instead of proceeding via executiva in rem against, the property, elects to sue his debtor in personam and to attempt to enforce his judgment by execution via ordinaria, the pact de non alienando will not enable him to seize the mortgaged property in the, hands of a third possessor claiming the ownership. He must exhaust his remedy against property subject to seizure under the writ of fieri facias ; and, failing to obtain satisfaction by- this means, he can reach the mortgaged property only by an action, the regular hypothecary action of our law, against the third possessor; and his mortgage, if properly inscribed, is as available in this form of proceeding without the pact de non alienando as it would be with that stipulation. Code of Practice, articles 61-68 ; Page vs. Générés, 6 An. 550 ; Desobry vs. Carmena, 9 An. 180.

After the lapse of ten years, without re-inscription before that time, subsequent mortgages are not affected by the first inscription; and neither notice, nor even the pendency of a suit on the mortgage, dispenses with re-inscription. See Sheppard vs. Cotton Press, 2 An. 110 ; Succession of Lowery, 22 An. 205 ; Hyatt vs. Gallier, 6 An. 321; Young vs. City Bank, 9 An. 193 ; Succession of F. Coner, 12 An. 216 ; Con. Ass. vs. Wilson, 10 An.; Kohn vs. McHatton, 20 An. 223 ; Britton & Kountz vs. Norment, 20 An. 508 ; Britton & Kountz vs. Janney, 21 An. 204; Blair & Co. vs. Taylor, 25 An. 148.

The mere reading of article 3333 C. C., article 3369 of the Revised Civil Code, shows that the minors’ mortgage which need not be re-inscribed is that to which the property of their tutors is subject by law, as security for the administration of their estates; and there is nothing in the law to take the mortgage in this case out of the rule which imperatively requires re-inscription.

The position of the parties was this: dating from the fourth December, 1852, a mortgage, properly inscribed, secured to the minor, Walter E. Bondurant, his one fourth of the estate inherited by him, or rather the price of this one fourth. This mortgage, in virtue of the inscription, bound the property for and during ten years, without regard to any subsequent changes in title or possession. On the sixth of December, 1862, this inscription perempted and lost its effect, even against the contracting parties ; and it would have been the duty of the recorder to have canceled and erased it on the application in writing of any party in interest. Act of 1843, Revised Statutes of 1870, sections 450, 3141, amending C. C., art. 3333 Rev. C. C., art. 3369. From the thirtieth November, 1854, Watson was the owner, and was in possession of the property in question. The mortgage which had affected the property no longer incumbered it in his hands, because ten years had elapsed without re-inscription. The mere failure to cancel the perempted inscription did not revive it. The article of the Code says the inscription must be renewed in the same manner in which it was made. It was dead so far as the first inscription was concerned. The law, however, permits re-inscription; and this mortgage was re-inscribed on the eighth September, 1865, nearly three years after the first inscription had lost its effect even against the contracting parties. The re-inscription gave it effect as a mortgage of the date of that inscription ; but at that time the property no longer belonged to the debtors,-the mortgagors; and it had no effect whatever against that property.

The plaintiff in injunction, Watson, demanded two thousand dollars in damages for the unlawful seizure of his property. The judge allowed two hundred and fifty dollars, without calling a jury. This was error. The Code of Practice, article 313, requires the judge where a judgment by default is to be confirmed and damages are to be assessed to have a jury summoned and to give judgment in conformity with their verdict.

It is therefore ordered, adjudged, and decreed that the judgment of the court below be amended so as to disallow the damages awarded to the plaintiff; and to that extent that the said judgment be avoided and reversed; and in all other respects that the said judgment be and it is hereby affirmed ; the plaintiff and appellee to pay the costs of this appeal; defendant and appellant paying costs of the court below.

Concurring Opinion.

DeBlanc, J.

Daniel M. Bondurant left, as his heirs-at-law, three sons, Albert, John, and Horace, and a grandson, Walter E. Bondurant.

On the fourth of December, 1852, the whole of the property belonging to. the succession was sold at auction, and bought by his three sons for §148,474. Two days after, on the sixth of said month, the deed from the sheriff to them, was recorded, and it was not re-inscribed until the eighth of September, 1865. Since that date, more than eleven years have elapsed, and the re-inscription has not been renewed.

Of the price of said property, one fourth was due by the purchasers to Walter E. Bondurant, and was to be paid to him at his majority, on the fifth of March, 1862, with interest. That claim was secured by mortgage, containing the stipulation which has been and still is confounded for ■ “ the pact de non alienando.”

In 1854, on the thirtieth of November, Augustus C. Watson purchased from John Bondurant the land acquired by the latter and his brothers from their father’s estate, and subject to the mortgage of the minor Walter. On the fifth of August, 1872, said Watson sold to his sons, Augustus and Frank, the land thus acquired by him from John Bondurant, and, on the sixth of December, 1875, by purchase of his brother’s share, Frank Watson became the sole owner of the whole. ■

Walter E. Bondurant brought suit against his uncles, to enforce his mortgage, and, on the fourteenth of November, 1867, obtained a judgment against them, with a recognition of said mortgage. Under an alias writ of fi. fa., issued from said judgment, the land bought by Frank Watson from his father and brother, was seized on the fifteenth of June, 1875. On the twenty-eighth of said month, he enjoined the execution, or the grounds:

First — That the mortgage in favor of Walter E. Bondurant has perempted for want of re-inscription;

Second — That he is a third possessor; that he was not made party to the suit in which the said Watson obtained the judgment he is seeking to execute against him, and that, as third possessor, he -was entitled to and was not given the notice prescribed by law.

In answer to plaintiff’s injunction defendant alleges ;

First — That, in the contemplation of the law and by the effect of the pact de non alienando, the whole of the land mortgaged remained in the hands of the original debtors ;

Second — That, except in certain, specified cases, peremption does not run against minors.

In the act of sale from the sheriff to Albert, John, and Horace Bondurant, there is the clause which, for over forty years, has been construed and enforced as the pact de non alienando. Does that clause prohibit the sale of the mortgaged property ? It does not. John Bondurant had the right to sell; he sold. Frank Watson had the right to buy; he bought. The several acts of sale passed from 1854 to 1875 were duly recorded and became as many notices to the world. 8 R. R. 165, Ducros vs. Foster.

In disregard of those recorded titles, under an execution issued or a judgment against John, Albert, and Horace Bondurant, a tract of land which had ceased to be their property, which was no longer in their possession, was seized to satisfy said execution, and that land was so seized with the full knowledge that it was then the property and in possession of Frank Watson. Is not that seizure a manifest violation of the spirit and letter of our law ?

At the date of the seizure, Frank Watson was, and he is now a third possessor : as such, he should have been called upon to pay the mortgage claim, if any such existed, or surrender the hypothecated property. This done, and he failing to discharge the debt, the property should have been seized under proceedings instituted against him, the owner and possessor, and he should have been notified, as the law requires, of the seizure and intended sale of his property. To this rule, in law, there is no exception. There are not, in Louisiana, two classes of third possessors of mortgaged property, one against -whom the creditor must proceed regularly, and another whose title may be divested without even the necessity of a single notice.

It is contended that, when the creditor proceeds under an act which contains the pact de non alienando, he can seize, not only from the owner and possessor, but from the first vendee and original mortgagor and sell, as belonging to the latter, the property which the vendor and mortgagee, knows to have been sold by his debtor, and to belong to another. Is it not time to correct an unjust practice, an abuse, and to discountenance an arbitrary exception to the sound and equitable rule of our Codes ?

In Louisiana, when it was a Spanish colony and under the Spanish law, the clause de non alienando absolutely prevented the transfer of hypothecated property, and any transfer made in contravention of that clause was a nullity. It impeded what our legislation favors, the transmission of property. In the first of its decisions on this question the Supreme Court said that “ the mode of proceeding under an order of seizure and sale was, in a great measure directed, by the Spanish law, under which any transfer made in violation of the clause ele non alienando was, ipso jure, void as to the creditor.” 2 N. S. 34 and 35.

, That law can no longer be invoked, not even under the pretense that it is not repugnant and contrary to our Code, and, nevertheless, from time to time the colonial rule supersedes the State law. C. C. of 1825, art. 3521.

In lieu of the prohibition to alienate, we have the 3397th article of our Code, which provides: that the debtor can not sell or mortgage to the prejudice of a previous mortgagee.”

Is a vendor’s right in any way increased by the insertion, in an act of sale, of a clause in and by which the purchaser, adopting the very expression of our Code, binds himself not to sell the mortgaged property to the detriment of the vendor’s interest ?

If that useless insertion constitutes a pact de non alienando, there can be, in our State, no third possessor of mortgaged property, and the hypothecary action need never be resorted to ; for, whether written or omitted, the condition not to sell to the prejudice of the creditor, is one fixed by a law which is a part of every contract of mortgage, and, in any and every case, with or without the insertion of that clause, the creditor, under the construction contended for, may proceed against his immediate vendor, in spite of the subsequent transfer or transfers of the hypothecated property, and thus deprive the owner and possessor of those rights of defense which are not denied to even the trespasser.

The article of the Code which provides that the debtor shall not sell to the prejudice of the creditor, recognizes the debtor’s right to sell, for it also provides that, if he does sell, the creditor may follow the mortgaged property, in whatever hands it may have passed, and compel the third possessor to pay the debt or relinquish the property. As to the mode of proceeding against third possessors, the Civil Code makes no difference, and merely refers to the Code of Practice. C. C., arts. 3397 and 3398.

This court has decided that the third possessor of property mortgaged, with the pact de non alienando, occupies no better position than the mortgageor. This we admit; but why, in whose interest, under what law is he entitled to less than the mortgageor ? To exercise his rights, to enforce his claims, the creditor must cause the property to be seized and sold. It is more difficult to seize it when it is in the hands of the third possessor, than when it is not, and from one who has parted •with title and possession ?

Though the third possessor occupies no better position than the mortgageor, he has at least the privilege of paying the debt and retaining the property. Under the actual jurisprudence, not the Codes, in order to enjoy that acknowledged right, he must guess that the mortgage claim is not satisfied, who holds that claim, which may have been thrown in the channels of circulation, and how, when, where, and by whom his property is to be sold.

If such a course be sanctioned, what shall become of the constitutional prohibition to deprive any one of property, without process of law ? With the legal value given to the pretended pact, there is not left •a vestige of that process. Without any demand, written or verbal, without notice of the parody of a seizure, still more, under a decree rendered against A, a writ issued from that decree, commanding and which could command but the seizure of A’s property, the property of B is seized, advertised for sale, and sold.

Sooner or later, we will have to choose between our own law and the .sprout of a law which has passed with the Spanish dominion.

I concur in only the conclusion of Mr. Justice Marr.


source: Caselaw Access Project

author: DeBlanc, J.

license: Public Domain

text:
    No. 3323.
    Christian Schwartz vs. the Crescent-City Railroad Company.
    Where the evidence shows that the plaintiff, who was injured by a collision with a railroad ear, contributed by his own fault to bring about the collision, he can not recover damages from the railroad company on account of the injury, even though the employees of the company were partly in fault.
    APPEAL from the Seventh District Court, parish of Orleans. Collens, J.

      Cotton & Levy for the plaintiff.

      John M. Bonner and Percy Roberts for defendants and appellants.
   The opinion of the court was delivered by

DeBlanc, J.

On the ninth of September 1869, plaintiff brought suit against defendant for $10,000. He claims that amount for damages actually sustained by him, through the gross neglect and carelessness of one of defendant’s employees. His demand is based on the alleged fact that, on the fifth of January, 1869, without any fault on his part, he was run over by car No. 22 belonging to defendant, and permanently disabled.

The railroad company filed an exception to plaintiff’s petition and a general denial. The exception is that the allegations of the demand are vague, inconsistent and contradictory. It was overruled, not urged or noticed on the trial in this court, not referred to in appellant’s brief, and — as and with the parties — we leave unnoticed the abandoned exception and enter the field of the merits.

Christian Schwartz is over sixty years of age, and, before he was disabled, kept a tinshop. He has a grown daughter. They now rely, for their support, on the daughter’s labor, and charity. Were the proportions of the victim’s misfortune to be alone regarded in fixing the liability of defendant, the proportion of that liability could hardly be exaggerated ; for, whether through a criminal and unpardonable neglect, or an unforeseen and unavoidable accident, an industrious artisan has, in a moment, seen his indefatigable hand converted into a stiff and paralyzed hand which he now extends on the street, to provide, for himself, his destitute child and destitute home, the strict necessities of the humblest life.

We will not attempt to disguise or reduce the sad result of this sad disaster ; we will not criticise the sympathies which it may have awakened even on the jury’s bench, but, in the faithful discharge of our stern duty, we have but two guides, the' evidence and the law. The sympathies, the prejudices, the passions which move and sway the public mind, should not be allowed to steal admittance in a court of justice.

The infliction of the alleged injury is fully established. We have, now, to ascertain the cause of that injury. If imputable to defendant, the verdict shall not be disturbed — if imputable to plaintiff, we shall cancel the verdict and dismiss his demand.

Two of the witnesses, Frank Waites and Henry Miller, testified that plaintiff crossed from the banquette on the lake side of Tclioupitoulas street, took a position near the railroad track, as if intending to get on the approaching car. The car was then moving at the usual rate, the driver’s right hand was on the brake, and, from his attitude and his looks, he seemed to be under the same impression as those witnesses. ■ When the mule was nearly on Schwartz, he rushed across the track and was -either knocked down by the mule or slipped and fell, his hand was caught between the chain of the brake and the bottom of the platform ; his body was and remained at fully two feet from the wheels.

Dr. Brickam, a witness for plaintiff, was asked ; “ Could the chain, by pressing the hand against any other substance, inflict such a wound as that described by plaintiff?” He answered: “I think it possible; yes, quite possible.” The doctor’s answer, though not absolutely confirming, adds at least a probability to the declaration of those witnesses ; and, though the weight of a loaded or unloaded car was not proven, is it not evident that if the whole of such a weight had pressed the hand between the iron wheel and the iron rail, the pressed portion — flesh and bones— would have 'been severed from the rest and would have remained on the track ?

The testimony of Waites and Miller -was assailed and ridiculed; they were suspected of having been hired for the occasion and bribed to rehearse a prepared lesson. It must have been the jurors’ conviction, as, otherwise, their verdict could not be accounted for or justified. As to us, we do not find in their evidence those bold contradictions, that hesitating incoherence, which, generally, brands the fabrication of the perjurer, or the lesson he is paid to repeat. Be this as it may, they are suspected and we dismiss them.

Miss Schwartz, the daughter of plaintiff,- said: The accident happened on a very clear and very pleasant day ; on that day her father was not as deaf as usually. Not only his hands were crushed, but he also had a deep wound on 'the left side of his back. When he was brought home after the accident, his body and arm were covered with mud.

Plaintiff fell — this is proven, the head to the river, the feet to the swamp. If, in that position, he was run over, how account for the wound mentioned by his daughter ? The wheel, in that position, could strike him but on the right, unless he fell on his back ; and the wound was on the left side.

Sworn in his own behalf, Schwartz said : “ On the fifth of January, 1868,1 was run over by the Tehoupitoulas cal’, between Josephine and Jackson. I came out of my house, and — when crossing the street — I slipped, fell, and the car ran over me. The mule passed me ; I did not come in collision with it. Before the car got close to me, I hallooed ‘ Stop ! Help me! ’ When I fell, the car was about eight or nine feet from me.” “The car, or the mule?” inquired his counsel. He answered; “ the car.” * * * I believe that, at that moment, I was out of my senses.” Did you observe, before falling, what the driver was doing, or did you see the car before you fell ?” “ I did not see the car, and do not know what the driver was doing.” He was again asked : “Had you seen the car before you fell ? ” “ I had ; but it was off, on the other side of Jackson street. When I hallooed, a lady who is now dead came out and tried to assist me. She hallooed at the driver, and he stopped as 'soon as he possibly could.” His cpunsel repeated the already propounded question“ How far off was the car, when you fell ?” “ From eight to-nine feet.” The judge then addressed him: “Was it the car or the-mule,” he asked, “which was about eight or nine feet?” “That was. the car:” he afterward said it was the mule, and, as well as he could judge, the mule and the car. Further on, he stated he was about five-feet from the mule, and, lastly, about.seven.

Who, in the conflicting fragments of that confused evidence, can discover whether it was before or after he fell, that plaintiff saw the car?' To one question, he answered: “ I did not see the car before falling” — t<> the other: “ When he saw the car, it was off, on the other side of Jackson, street.” Where he was at that time, whether at his door, on the banquette, near to or on the track, we are at a loss to ascertain. How and how far from the car did he fall ? He said and repeated at eight or nine-feet from the car, then eight or nine feet from the car and the mule, and afterward seven or five feet from the mule.

We do not believe, much less do we charge, that he willingly swore-to a falsehood, but grave contradictions cloud and darken nearly every line of his declaration.

He fell across the track, and — nevertheless—the mule passed him. without coming in collision with him. How could that happen, unless — as-stated by Waites, the mule shied and left the track ? How did it happen, that though, as alleged in his pleadings, he was crossing the street from the river side, he fell with his head toward the river ? A fall, without a-collision, would have had a different, an opposite result: his head would have been toward the swamp, his feet toward the river; that position,, otherwise inevitable, must and could have been so reversed but by a-collision, a shock.

Was his entire body, or ■were only his arms and hands across thetraek, after the fall ? The record does not indicate, and we have to retrace our steps, enter the past, place ourselves where the witnesses-stood, see what they have seen and hear what they have heard. Schwartz leaves his house, follows the banquette up to the point where,, every morning, he is in the habit of crossing, turns at that point, gets in the street, and is about to step over the track ; he hears and sees the-car, stops, hesitates, measures the distance from the car and that which he has to cross, believes that he has time to cross, rushes ahead, is-struck by the mule, falls nearly senseless, his hand is caught in the chain brake and drops from it as soon as the brake is slackened.

For the convenience and with the consent of their inhabitants, the streets of our American cities are now lined with rails and traversed, in every direction, by those constantly-moving cars which, for the most reasonable fare, convey — in a few moments — from their residence to their place of business, and from that often distant place back to the residence, the merchant, the clerk, the minister, the attorney, the judge, the proprietor, the servant, the rich and the poor. In return for that priceless convenience, each of these inhabitants has, impliedly at least — renounced,, of his right to stand and walk on those streets, that fractional, that insignificant share which is indispensable to accelerate the general circulation. The car is not to be stopped at every minute to let the footman pass — the footman must stop, sacrifice a second, when necessary, to let the car pass. The driver is authorized to presume that no rational being shall remain . on the track, while the car is advancing, and he who crosses the track, when the car is at a distance within which it can not be checked, takes upon himself the risks of any accident which may be the consequence of his act..

What is that distance ? It then varied, according to circumstances, from three to 'thirty-two feet. This is the evidence introduced on the trial, and that evidence leaves us on a shoreless sea of doubt and uncertainty. It clearly shows that the possibility and the power to stop within the given distance, depends upon the quality of the brake, the strength of the driver, that of the mule, the pull which immediately precedes the checking, the load carried, the weight of the car, the condition of the weather, of the track, and the unobserved and untold causes which accelerate or obstruct the speed of a vehicle and the evolutions of its wheels. Two experiments made successively, with the same car, the same driver, the same mule did not produce the same result, and — from the evidence before us — we are inclined to believe that, at that time, with different cars, brakes, mules and drivers, one hundred experiments made on the same day would have produced one hundred different results. On one fact, the witnesses agree: when the weather and the track are dry, the ears can be more easily checked. On the fifth of January, 1869, what was the condition of the weather and the track? On this fact, the.witnesses disagree: according to some, the day was pleasant and bright, according to others, damp and foggy. Two extracts from the New Orleans Picayune, of the fifth of January, 1869, fully establish that it had rained the day before, and that, on the fifth, in the language of the report published by that paper, “ the morning dawned damp and foggy.” Miss Schwartz testified that when her father was brought home after the accident, he was covered with mud. It is difficult not to believe that, on that day, no car could have been checked within less than twelve feet of an object, by one prepared to check at a point selected by him, and whose hand and body would have been in advance, placed in the most advantageous position to promptly cheek. If so, how could it have been expected that one taken by surprise, as was the driver of car No. 22, would have done more than one who experiments with the deliberate intention o£ ascertaining the shortest distance within which a car can be checked? When Schwartz fell, he was about eight or nine feet from the car, and — nevertheless—the wheel did not reach his body: he “would not have been hurt,” said Waites, “had he not thrown up his hand.” This declaration shows that, when the driver realized that he had been deceived by plaintiff’s attitude, or when the latter was knocked down or fell on the track, the driver, as stated by plaintiff himself, stopped as quick as he possibly coulcl.

If Schwartz’s body was at two feet and a half from the wheel of the ■car, all he had to do to avoid it was to fold his arm and to draw his hand toward his body; but the motion, by which he entangled it in the chain, would have been that of almost any one in his position; the first idea of one threatened with a collision is to raise the hand and place it between the exposed body and the object by which it is threatened.

Plaintiff’s counsel contends that, if such brakes as were used by other companies had been attached to defendant’s car, or a conductor placed on the same, the driver would have been able to stop it in time to avoid the injury. We believe otherwise; under the circumstances already related, neither a more efficient brake, if any better then existed, nor the presence of a conductor in the car, could have prevented the accident — for, above the differences and contradictions which mark every page of this record, there stands a presumption which we can not disregard: Schwartz was standing near the track, and, by his attitude, led the driver to imagine that he intended to get on the car, and, when the mule was almost on him, he rushed across the track and was injured. By whose fault?

Sworn and examined as a witness, plaintiff has failed to justify his complaint; he has failed to show that his injury was inflicted through the carelessness and negligence of the driver; he has failed to show that he acted, on that occasion, with that degree of caution required from those who enter a court to denounce the negligence of others. The whole of the evidence, not excepting his own, leads to the conclusion that plaintiff has contributed to the disaster, and — under the law and jurisprudence of our State — he could not recover, even if the driver had been partly in fault.

23 An. 264, 462, 729 ; 3 An. 48 ; 9 An. 441; 18 L. R. 339 ; 6 An. 496 ; 11 An. 292 ; 1 An. 374; 3 An. 411 ; Redfield on Railways, 119, 117.

Whatever may be, as to the question of facts, the respect due by this court to the verdict of a jury, we cannot so extend and exaggerate that respect as to sustain a verdict unsupported by even the declaration of the party in whose favor it was returned.

Under the evidence and the law, defendant is not liable to plaintiff; but, under the circumstances which surround this sad accident, this real misfortune, plaintiff is now — not a beggar — but the creditor of society or of the State, for whatever is necessary to one of his age and condition.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be and it is hereby annulled, avoided and reversed, the verdict of the jury set aside and plaintiff’s demand rejected at his costs in both courts.


author: Egan, J.

text:
    No. 6418.
    Albert G. Brice vs. John A. Watkins et al.
    Whore a parly, acting through an agent, loans money on iho security oí the borrower’s mortgage, and the agent, who keeps the note in his possession, pays over from time to time to his principal the accruing interest and parts of the principal of the note received from the maker, finally pays over to the principal the balance due on the note, without stating that he is paying his own money, and without obtaining the consent oí his principal to buy, or even intimating that he desired to buy the note, he will not acquire any title to the note; and the note itself, and the accompanying mortgage, will be deemed extinguished.
    Subrogation to a creditor’s rights and liens only takes place in favor of a third person who pays the debt, (when such third person has no interest in paying it,) by an express agreement to that effect, entered into at the time of payment.
    REPEAL from the Second Judicial District Court. Pardee, J.

      E. T. Merrick and A. G. Price for plaintiff and appellee.

      J. Caldwell Pierce for defendants.
   The opinion of the court was delivered by

Egan, J.

Devine, who was engaged in the real estate business and in loaning money for other persons on mortgage and other security, made-a loan of money belonging to Boothby, and for his account, to Bowers, and took as security a mortgage upon certain real estate. Devine retained the note, and as the agent of Boothby received and paid over to his principal various amounts of interest, and from time to time extended the mortgage note, with the knowledge and consent of his principal. Part of the principal was also paid by Bowers and accounted for by Devine to his principal, Boothby. Finally the remaining amount due on the note was received by Boothby, the principal, from Devine, the agent. The district judge thought it probable from the evidence that this payment also was made with the means of Bowers, the mortgagor and maker of the note. If so, it would of itself be conclusive of the issues of this case; but whether so or not, that fact does not change the conclusions which we have reached. Subsequent to the reception by Boothby of the full amount of the note, the present plaintiff, Brice, purchased from Bowers a part of the property covered by the mortgage. The usual mortgage certificate was required and given, and did not disclose the existence of this mortgage at the time, although in point of fact it had not been canceled on the books of the mortgage office. The present defendant, Watkins, subsequently sued out executory process against the property purchased by Brice, claiming to be the owner and holder of the mortgage note of Bowers, whereupon Brice enjoined upon various grounds, only one of which we consider it necessary to notice; that is, that the mortgage note had been paid and extinguished and that the mortgage no longer existed or was of force against the property. The evidence discloses that after the several partial payments on the note made through Devine to Boothby or to him as the agent of Boothby, and paid over by him to his principal, the latter received from or through Devine the remaining amount due upon the note. Devine claims that this payment was with his own money and that he thereby acquired the ownership of the note and continued to hold it against the maker, Bowers, until the latter part of 1872, when he transferred it to his father-in-law, Watkins, the present defendant. Both Boothby and Devine testified on the trial.

The former says that he received the money as a payment of the note ; that the investment was a good one ; that the interest was paid on it regularly; that he had no other use for the money; that he did not need or want it; and that he did not sell or transfer the note to Devine.

The latter alone says he bought the note from Boothby on the eighth of June, 1872, when he paid him the balance due upon it, $750. He does not detail what conversation occurred between him and his principal at the time. He does not say that he told Boothby that he wished to buy' the note for his own account and with his own funds and that Boothby consented, or that the latter even knew that such was his intention. He only swears that he bought the note from Boothby, who needed money and to whom he advanced it. Boothby denies the truth of either statement. He is wholly impartial and without interest or suspicion of interest in the present controversy. His credibility is not impeached by any witness pr fact in the record. On the contrary, his statements are sustained by the other facts and circumstances and by the probabilities of the case. He was in the habit of loaning money at interest on good security, and Devine, who was engaged in that business, had effected' other transactions for him of similar character. He not .only swears that he did not need or desire the money, which was only for investment, and that the Bowers mortgage was (as is evident from the record) a good investment; but that after receiving the money from Devine he kept it several days unused, and finally loaned it to a gentleman who had, not repaid it. The note was long overdue, the security good, the interest promptly paid, and the creditor received from bis own agent, as he had received other previous payments, the whole «mount remaining due upon the note, without one dollar or cent of discount, even according to the testimony of Devine himself, who does not •even pretend to have made a dollar by the transaction. There was no motive for the sale of the note, and the evidence fails to disclose any for its purchase. The probabilities and the reasonableness of the case all ¡sustain the direct repeated and emphatic statement of Boothby, that he •did not sell or transfer the note to Devine ; but only received the money, «s he thought he was bound to do, as a payment and extinguishment of -the note. And such we think it was, whether it was made with the money of Devine or of Bowers, the debtor. That such payment may be lawfully made by a stranger under our law is settled both by the Code «nd repeated decisions of the courts. R. C. C. 2134. Such payment •extinguishes the debt, and, of course, its accessory obligation, the mortgage, as fully as if made by the debtor himself. Subrogation to ■the rights, actions, privileges, and mortgages of the creditor against his debtor can take place only by an express convention or agreement at the •time of the paxjment or when the debtor borrows the money to make the ¡payment, which fact must appear by an act declaring it and a receipt •for the money, executed by the debtor before a notary and two witnesses, or, lastly, where the person making the payment is shown to have an interest in discharging the debt when it takes place of right by mere operation of law. C. C. 2159, 2160, 2161. No convention is here •shown with either creditor or debtor, nor is there evidence of such interest or of any interest at all in Devine which would operate legal •subrogation in his favor. See, also, Sewall vs. Howard, 15 An. 400, and ‘Oliver vs. Bragg, same, 402. He was, however, not a third person in this matter. He was the agent of the creditor, who transacted the business, •effected the loan, took and held the note and mortgage and received payments upon them for account of his principal. He could not acquire ■the note, the property of his principal, without the consent of the latter, and after a full disclosure of the facts. We agree with the district judge that no such consent and no such disclosure were given or made in this instance. There was wanting the essential ingredient to make a valid sale or purchase of the note; there was no “ aggregatio mentium.” The ■agent could not consent with himself for his principal; the latter did not consent for himself; and it is manifest from the evidence that Boothby’s consent would not have been given to a transfer of ¡a perfectly good paying investment of funds for which he had no other use to any one,, and especially not to his own agent; and had the latter disclosed to him that such was his intention in making the payment that he-would not have received it. See Story on Agency, sec. 210, 211; Story’s Equity, vol. 1, sec. 315 and 316 ; 13 An. 20; 6 La. 415; C. C. 1798. The case of Gusman vs. McCann, 23 An. 87, relied upon by the defendant’s counsel, has no application to that at bar, and • is not in accord with the later case of Hoyle vs. Bemiss, 25 An. 438, decided by the same court. In the 23 An. case there was no question of agency or of acquisition by the agent of the property of his principal. The note was acquired by a stranger, who invested his own money, and, before its maturity; and it appears from the statement of the case that the matter was fully talked over and understood between the parties, and even in that case the court was divided ; and it is very questionable whether under the facts stated it was a purchase of the note at all, and whether it was not rather a loan to the debtor of the amount paid for the note, and which consequently could not operate subrogation without the execution of the receipt and declaratory act required by law. Our opinion would not have been changed had the evidence referred to in the defendant’s bills of exception been received by the court below ; but we do not think the court erred in refusing to receive it under the circumstances stated in the bill; neither does the view which we have taken of the case make the ruling of the court a qua in rejecting the schedule and other proceedings in the bankruptcy of Devine necessary to its determination. We think, however, that the evidence did bear upon issues made in the case, and that it was calculated to throw light upon it, and •that it was competent and should have been received under the allegations of plaintiff’s petition.

We do not consider it necessary to pass upon the credibility of witnesses or conflict of testimony, further than has been already done in this opinion. Even taking Devine’s own statements of the facts and circumstances under which he claims to have acquired the note and mortgage in question, we think the payment of the money by him to Boothby operated a discharge of the obligation evidenced by the note and mortgage which do not now exist, either against the debtor or the property mortgaged. If any obligation on the part of Bowers grew out of the alleged use by Devine of his own money in the payment of the debt of the former, it was of a different character, and carried with it neither note nor mortgage. Even this, however, the district judge thought questionable. He heard the testimony and saw the witnesses, and we are not prepared to disturb his conclusions, deliberately made and intelligently presented in the record.

It is therefore ordered, adjugded, and decreed that the judgment of the court below be and it is affirmed, with costs of both courts.


author: Manning, C. J.

text:
    No. 6667.
    Bussy & Co. vs. Nelson.
    The death of a defendant to a suit pending in a court of ordinary jurisdiction, does not divest that court of jurisdiction, and work the transfer of the case to the probate court. The suit remains where it was instituted, but only to be proceeded with when the legal representative of the deceased defendant is made a party.
    The probate court of a parish has no authority to appoint a curator ad hoc to represent the heirs of a deceased defendant to a suit pending in a court of ordinary jurisdiction, when the succession of the deceased has not been opened; only the court before which the suit is pending has the legal right to appoint such a curator.
    APPEAL from the Fourth District Court, parish of Orleans. Houston, J.

      Thomas M. Gill, for plaintiff and appellee.

      Clarke, Bayne & Renshaw, for defendant.

      Valle J. Rosier, curator ad hoc, appellant.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiffs sued the defendants as a commercial firm, composed of S. C. Nelson and William Tolle, the residence of the individual members and the domicile of the firm being in Indiana. Process of attachment was issued, and two flatboats loads of staves were seized here, which were subsequently released upon Nelson’s application, by the execution of a satisfactory bond. The bond was given by Nelson alone and in his individual capacity, with a resident surety. He also answered the demand of plaintiffs, specially denying the existence of a commercial partnership, and contested the correctness of the account sued on and denied any indebtedness.

This suit is in the Fourth District court of New Orleans, and at that stage of it, Nelson died in Indiana.

The plaintiffs then filed a petition in the Second District court, reciting the above facts, and stating that they knew of no property or succession of Nelson in this State, and prayed the court to appoint a suitable person to represent S. G. Nelson deceased and his heirs, if any he has, and to appear and defend the suit. Whereupon the Second Court made the appointment in these words; Let J. V. Rozier Esq., be appointed to represent Samuel C. Nelson deceased and his heirs, if any he has, and to defend them in this suit.

Mr. Rozier is an attorney at law, practicing in the courts of this City and in this Court, who on being notified of his appointment, filed in the Fourth , Court an exception to the suit of plaintiffs, in which he denied that the Second Court had authority or jurisdiction for making the appointment of himself to represent the deceased and his heirs, and also alleged that the Fourth Court was without jurisdiction to proceed further against the deceased. This exception having been overruled, the case proceeded. The default against Towle was confirmed, and judgment entered for one thousand and thirty eight dollars against him, which.is the sum claimed less two hundred and forty dollars, and the attachment was maintained. .A similar judgment was rendered after trial against Nelson, “represented herein by V. J. Rozier, Esq., curator ad hoc.”

The question for solution is, had the Second Court the power to appoint a person to represent the deceased or his heirs in the suit pending in the. Fourth Court, or should the latter court have made the appointment.

We pass by that part of the exception which contests the jurisdiction of the Fourth Court over the suit after Nelson’s death with the remark that we have recently held, that a suit pending.in one of the courts of ordinary jurisdiction in New Orleans does not abate by the death of one of the parties, nor does the death of a defendant in such suit compel its transfer to the Second Court, but that it remains within the jurisdiction of the court where it was instituted, and only awaits the representative of the succession of the deceased to be made a party in order to proceed in its trial. Angustin vs. Avila, 29 Annual 837.

The plaintiff did not apply to the Second Court to open the succession of the deceased Nelson. On the contrary, their petition.in express terms disclaimed such intention. They averred that there was no property of the deceased in this State — no succession to open. It was not therefore the appointment of a curator to a vacant succession that was desired, nor of a curator or other representative of any succession. The prayer was for the appointment of a person to represent the deceased, and his heirs, who should appear and defend the suitr — evidently meaning their suit in the Fourth Court; the institution and progress of which they detailed in the petition to the Second Court as the reason why they asked the appointment. It was a curator ad hoc that they desired.

The case of McManus vs. West, 18 La. 41 is the authority relied upon by plaintiffs’ counsel for making the application to the Second Court, wherein it is said, the suggestion of plaintiff’s death does not justify the appointment of a curator to his heirs by the court of ordinary jurisdiction. If they were within the State, no curator could be appointed to them, and if absent, the Court of probates possesses the exclusive power to make the appointment. At- the first glance, this would seem to favor, if not to authorize, the course pursued in the case before us, but a more attentive examination will shew the contrary.

That suit, like this, commenced by attachment. West, the absent defendant; was represented by a curator ad hoc. The garnishees answered they had nothing belonging to West except certain cotton which they were directed to hold for Odom, and he then intervened and claimed it. Just then the plaintiff died, and the counsel of the intervener suggested his death and at his instance a curator ad hoc was appointed to represent the heirs of the plaintiff. The court said the appointment was improperly made, and annulled the judgment which had been rendered, and obviously for this reason.

The Codes nowhere provide for the appointment of a curator ad hoc to a plaintiff. A plaintiff comes into court of his own volition; If he dies, a representative of his succession is appointed who takes his place as actor in the suit, or his heir represents him. Defendants do not come into court voluntarily. The law must provide the means by which they can be brought in, and when the process of the court can not reach them personally, the law devises ways and means by which a standing in court is artificially created for them, and they or their property are rendered amenable to the jurisdiction of the court. If a person, says the Code of Practice, against whom one intends to institute a suit is absent and not represented in the State, a curator ad hoc must be named to defend him. art. 116.

The present plaintiffs insist that the case of McManus is authority for the appointment in this suit, because there was an intervenor in that case, and as to him, the plaintiff was a defendant, and when the court said that the court of probates could alone appoint the curator to the absent heirs, the dictum had reference to a defendant’s heirs.

It might be answered, that the same court which decided the McManus case had also said that an attorney, appointed to represent absent heirs by a court of probates, could not represent them in any other tribunal. He can act only in the court for which he is appointed. Harrod vs. Norris, 10 Martin, 16. But it is obvious that in both cases, the court is treating of the manner in which successions are to be represented. So also it is to successions that the Code of Practice has reference, when it provides that Courts of Probate have the exclusive power to appoint curators to vacant estates and absent heirs, art. 924

In the case before us there was confessedly no succession. A non-resident defendant, whose property had been attached, and who had appeared and answered, died during the pendency of the suitr— died at his foreign domicile, where his succession was opened. The plaintiffs acted on the assumption, that the Second Court could alone appoint a curator to represent the heirs of the decedent, although there was no succession to open, or if any, without seeking or demanding the appointment of a curator to a vacant estate, or to the absent heirs of such estate. The appointee on the other hand insists that the succession of the deceased defendant should have been opened in the Second Court; and a curator of that succession eo nomine should have been appointed, who could then have represented the succession in the suit in the Fourth Court. Both are in error.

Under the state of facts as alleged, the Fourth Court, which had jurisdiction of the suit at its inception, did not lose it by the death of one of the defendants, and alone had the authority to appoint a curator to represent the heirs of that defendant in that suit, there being no succession opened or to be opened in this State, and no means being provided to bring the foreign representative of the foreign succession before onr courts.

The judgment was therefore rendered contradictorily with one not authorized to represent the parties, and must be annulled.

It is ordered, adjudged, and decreed that the judgment of the ower Court is annulled, avoided, and reversed, and the case is remanded to be proceeded with according to law, the appellees paying costs.


author: Spencer, J.

text:
    No. 6486.
    Gest & Atkinson vs. N. O., St. Louis, and Chicago Railroad Company.
    Where by a judgment of a circuit court of the United States the assets of a corporation have been taken possession of, and placed in the hands o£ a receiver, no writ of attachment, or any other process can legally issue from any other court to distux-b the receiver’s possession of such assets, or take effect oix any right, ox-debt, that may have accrued in favor of the corporation after the receiver had Qualified, and taken ehax-ge.
    Under the law of Louisiana mortgaged property may bo seauestered.
    Extx-acts from the judgment of another court are not admissible in evidence, in order to show tlxe force and effect of the judgment. A certified copy of the entire judgment, together with all the pleadings that led up to it, xxxust be put in evidence.
    APPEAL from the Superior District Court, parish of Orleans. Lynch, J.

      McGloin & Nixon for plaintiff and appellant.

      L. JS. Simonds for defendant.
   The opinion of the court was delivered by

Spencer, J.

Plaintiffs obtained final judgment against the defendant railroad on twenty-fifth of May, 1876.

They thereupon issued execution, and propounded interrogatories to Glover & Odendahl, E. Marquez & Co., and Leonard & Maxwell, as garnishees, seizing in their hands any moneys due to the defendant railroad.

On twenty-ninth of August, 187C, J. B. Alexander, alleging that in a certain suit pending in the United States Circuit Court for Louisiana, entitled “Illinois Central Railroad Company et al. vs. New Orleans, St. Louis, and Chicago Railroad Company,” he had been, by order and decree of said court, of date eleventh March, 1876, appointed receiver of the said defendant railroad, and as such put into possession of all its property, franchises, and revenues. That the said writs of garnishment, in so far as they operated a seizure of the revenues and earnings of said road, accruing subsequent to said date, to wit: eleventh March, 1876, disturbed his said possession and enjoyment, and were in violation of and in conflict with the said orders and decrees of the Circuit Court. Wherefore he prayed that plaintiffs be ruled to show cause why the said writ of garnishment and the interrogatories propounded thereunder, so far as they conflict, interfere with, or disturb his possession, use, and administration of said property, so in his custody, should not be annulled, vacated, and quashed, and that the civil sheriff be ordered to notify the parties garnisheed that the said garnishment will only apply to indebtedness originating prior to eleventh March, 1876, and not to freights or other sums due and earned by said railroad since said eleventh March, 1876.

This rule was tried and made absolute, and the plaintiffs, Gest & Atkinson, appeal.

If the facts stated in the rule are proved by legal and competent evidence there is no doubt in our minds of the correctness of the judgment.

The United States Circuit Court in a suit pending before it, had in effect caused the New Orleans, St. Louis, and Chicago Railroad to be .judicially sequestered, and had appointed a receiver therefor. Having thereby acquired custody and jurisdiction of the property, and consequently of its revenues and earnings thereafter, it is elementary that no •other court could, by its process, take the property out of the custody, or divest the jurisdiction, of the Circuit Court. The revenues and earnings of the road subsequent tp eleventh of March, 1876, the date of sequestration, were in the custody of the Circuit Court, and could not be seized by fieri facias garnishment or otherwise by any other court.

It is unnecessary to discuss the legality of the appointment of the receiver.

We must presume that that court has proceeded according to law. We simply remark, en passant, that there is ample authority under our law for the sequestration of mortgaged property. O. C. C. 2948, 2950; C. P. article 275, paragraph six. We would not consider it a very grave departure from our law if the “ judicial guardian” of whom it speaks were called a receiver or a “ keeper.”

We think, however, that the evidence offered by the receiver in support of his allegations was insufficient and illegally admitted. The plaintiffs’ objections, as stated in the bills of exception, were good and should have been sustained. Mere extracts from the judgments of the Circuit Court appointing the receiver and granting him writs of assistance to maintain his control and possession of the property, were not admissible. 19 L. 526; 3 An. 594. We do not think this case comes within the scope of those where extracts from inventories and process verbals of sales have been admitted.

In order that this court may know the extent of the receiver’s rights and powers, under the judgments in question, it ought to have the opportunity of examining the pleadings upon which said judgments were rendered.

A decree read under the light of the pleadings may be and often is a very different thing from what it would appear to be if considered disconnectedly. Rejecting these extracts, the receiver has failed to make out his case.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed; and it is now ordered that the rule taken herein by J. B. Alexander be dismissed at his costs in both courts, as in case of nensuit.


author: Marr, J.

text:
    No. 5409.
    George L. Gettwerth vs. Mrs. E. Hedden.
    Where the owner of a vacant lot in the city of New Orleans, who desires to erect a building of certain dimensions on the lot, finds that the wall of his neighbor’s house, which is built up to the boundary line of the lot, is so thin that the weight of his prospective building, although erected within the bounds of his own lot, would destroy liis neighbor’s house, he has the legal right to take down the neighboring wall, and replace it by one strong enough to support tlic building he shall erect. Such reasonable care must be observed by him however, as will render the inconvenience and loss to his neighbor as small as practicable; and his care must be proportioned to the risk of loss and inconvenience to his neighbor that his undertaking may occasion; and he is liable for whatever actual damage his neglect to take such care may entail.
    A party can not be held liable for the value of property, stolon on account of its being exposed to theft by an act of his which he had the legal right to do.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Braughn & Buck for plaintiff and appellee.

      Singleton & Broione for defendant.
   The opinion of the court was delivered by

Marr, J.

This is an action for damages, which involves no disputed question of law. The testimony is voluminous, and somewhat conflicting, and, without analyzing it in detail, we shall state, in general terms, the material facts which we consider proven.

Gettworth leased from McCarty, for a term of four years, ending September 13, 1876, a house and premises which he fitted up for a confectionery and restaurant, with counters, shelves, soda fount, oyster stand, bar and rooms for private supper and dinner parties. His family occupied the upper part, the second story.

Mrs. Hedden owned the adjoining lot, on which she desired to erect a three-story brick building. The house occupied by Gettworth was built entirely on McCarty’s property; and the wall extended up to the line of Mrs. Hedden’s property. At her request the City Surveyor examined this wall, and in a report, in which he gives its dimensions, he states that it would not support a three-story building, and that, if Mrs. Hedden should build entirely on her property the weight of her house would destroy McCarty’s.- It was necessary, therefore, to demolish this wall and to rebuild it with the requisite thickness.

On the 14th Nov., 1872, the builder, Evans, employed by Mrs. Hedden to superintend the work, gave notice to Gettworth that he would be ready, in .a few days, to commence taking down the wall, and requested him to move his goods away from it.

Precisely at what time the work was commenced the record does not show; but about the middle of December the premises were in such a condition that Gettworth’s wife and children could not lodge there, and slept elsewhere for about seven weeks. The counters and shelves were taken out: the interior of the house was exposed to the weather: the work was retarded, sometimes by the heavy rains, sometimes for lack of materials, sometimes by reason of the absence of Evans, who was sick, sometimes because it was so cold that the mortar was frozen, and the workmen could not lay the brick. It was a cold winter, with frequent and heavy rains ; and the business of Gettworth was greatly interfered with for want of the use of a fireplace, and consequent inability to make his customers comfortable while taking meals and refreshments.

The testimony is not satisfactory as to the precise time during which these annoyances and inconveniences continued; but we gather from the testimony of the painter employed by Gettworth after the wall had been built and papered, that the counters and shelves were replaced in March, 1873.

Gettworth brought this suit on the seventh of March, 1873, to recover $2212 25 for damages, claimed under these heads:

First — $1000 for actual loss of business, at $10 per day, from December first to March tenth.

Second — $1000 for further damages, “actual, punitive, and exemplary,” for loss of customers, decrease and depreciation of business, and the annoyance, trouble, suffering, and exposure to which plaintiff and his family were subjected.

Third — $212 25, value of a lot of liquors and other articles stolen from the premises on the twelfth of December, 1872, the thieves having gained admittance and egress through the openings and exposures left by defendant.

The judge of the District Court, an upright, conscientious magistrate, now no more, who evidently considered the case very carefully, rejected the damages claimed under the second and third heads ; and awarded to plaintiff $550 : and from this judgment Mrs. Hedden appealed. Gettworth died pending the appeal; and his administratrix, made a party in this court, asks us to amend the judgment so as to allow the full amount sued for.

So far as the claim for “punitive and exemplar damages” is concerned, but little need be said. Mrs. Hedden exercised an unquestioned legal right in demolishing this wall, and replacing it with one capable of sustaining the structure which she erected. The exercise of this right is of constant occurrence in all cities ; and it is so universally known that the owner of the property subject to it and his lessee must be considered as having notice of its existence, and that it might be exercised at the pleasure and convenience of the adjoining proprietor. If the lessee should be subjected to inconvenience he might claim of the lessor a proportionate reduction of the rent. Dorville vs. Amat, 6 An. 566 ; or if the premises should become untenantable, the lessee might dissolve the lease. Goleman vs. Haight, 14 An. 564.

No improper motive, no intentional wrong can be attributed to Mrs. Hedden or her superintendent; and while it is possible, in most cases, to avoid serious injury to the neighbor, whose wall is thus taken down, it is not possible, in any ease, to prevent great annoyance and inconvenience, personally, to the family occupying the house, and interruption of the business conducted in it, by making it less inviting and accessible to customers.

The proprietor who exercises this right is bound to take every precaution that prudence and a due regard for the rights and comfort of the neighbor require; and if he fails to do this, he is responsible for such actual loss and damage as the neighbor has suffered which might have been avoided.

As to the alleged loss by stealing, Gettworth knew, a month before this happened, that the wall would be demolished at an. early day; and that the premises would, necessarily; be very much exposed. The articles alleged to have been stolen were in a building which the witnesses call a shed. Gettworth was on the premises and knew the full extent of the exposure; and it was not prudent, it was in legal contemplation fault, contributory fault, on his part, to leave such' portable property exposed to thieves and plunderers. He should have moved it to some other better secured part of the premises; or to a place of safety elsewhere, if no part of the premises was safe. What thieves could carry away in one night, without waking the owner, who •slept on the premises, without attracting the attention of the police, he could have placed beyond their reach without great expense or labor.

We think it was not prudent to have such work undertaken in the winter. It could have been done in the summer and early autumn much more expeditiously, and with far less risk of personal inconvenience to the occupants of the house. The discomfort of exposure in warm dry weather is trifling compared to that which results necessarily from like exposure in the cold, wet weather of winter. The interruption of business in summer, when the population is greatly diminished, is of small consequence compared to similar interruption from December to March, inclusive. No law certainly, restricts the proprietor as to the season at which he shall exercise- his legal rights with respect to his neighbor’s wall; but when he chooses to exercise them at a time, and under circumstances which greatly increase the risk of injury to the neighbor, he is bound to use extraordinary precautions, in accordance with the increase of the danger.

The testimony satisfies us that this work might have been done in such a manner as to have caused Gettworth no serious injury. It was the work of a few days, when the bricklayers could get at it, to run up the wall to the height of Gettworth’s house. As soon after this as was practicable the house should have been restored, as nearly as possible, to its original condition. If this was ever done it was not earlier than March, because the shelves and counters were replaced in that month, and there was still some other work to be done at that time.

It was possible for Evans, the superintendent, to have had all his materials ready, and on the spot, so that no delay would have occurred for want of them; and to have secured the interior of Gettworth’s house from exposure to the weather, by well-constructed partitions, to supply the place of the wall to be demolished until the.new one could .be completed. By means of such temporary partitions families are enabled to occupy houses which would be otherwise untenantable while one of the walls is being demolished; and the business conducted in them suffers' but little more interruption than would result, ordinarily, from the erection of an independent building alongside.

We think there was such fault on the part of Evans, whether from error of judgment, or want of skill and experience, or from some accidental circumstances not anticipated and not provided against, as imposes liability on defendant for the actual loss and damage suffered by Gettworth, which might otherwise have been avoided.

It is difficult to estimate actual damage in a case like this. Gettworth had a good business; and it was in great part broken up for from two and a half to three months. He estimates his loss at $10 a day. Whether the judge of the District Court arrived at the $550 allowed by him, by fixing the time at fifty-five days, at $10, or at a longer time and lower rate we do not know; but there is no testimony in the record which requires or authorizes us to disregard his estimate, or to fix the damages at a less amount.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended so as to substitute the name of Mrs. Diana Sachsen, Administratrix, for that of George L. Gettworth, plaintiff, and, as thus amended, that said judgment -be affirmed with costs.