text:
    No. 2406.
    Alexander Norton v. David Jamison.
    A judgment rendered against a party who, ¿hough cited, dies before issue is joined, is null. Therefore, in case the defendant dies after citation but before issue is joined, it is necessary to make his legal representatives parties to the suit, who must be cited. Otherwise the judgment rendered is void and inoperative as well against the defendant, deceased, as againsfchis heirs or legal representatives, and the recording of such judgment creates no legal mortgage against the deceased or his legal representatives. The insertion of tho word heirs in the final decree gives it no legal force or effect against his lieir or legatee. jtsTor does the subsequent appearance of tho heir or legatee, for the purpose oi taking an appeal, give such effect to the decree rendered by tbo inferior jurisdiction as to give effect to the inscription thereof from the date that it was rendered in the court below.
    Mortgages are stricti juris, and must, of themselves, he complete and give all the information which the law intends is necessary for third x>arties. Therefore, a judgment that has been rendered against a party who died before issue was joined, although recorded, does not operate on the property of his heir or legatee, who was not made a party to the suit, and a third purchaser of property from the legatee, after the rendition and recording of such judgment, is not affected by any mortgage resulting therefrom.
    APPEAL from the Sixth District Court, parish of Orleans.

      Cooley, J. Miles Taylor and JBillings c& Hughes, for plaintiff and appellee;

      Campbell, Spofford & Campbell, for defendant (plaintiff in injunction) and appellant.
   Howell, J.

In a hypothecary action plaintiff obtained an order of seizure and sale against the property of defendant, as third possessor, by purchase from James Dick Hill, in February, 1859, upon a judgment rendered iii the United States District Court, Eastern District of Louisiana, on the ninth December, 1856, and inscribed twentieth June, 1857, which is in the following words and figures:

Alexander Norton, owner of steamer ■Western World, v. 1 • No. 685 — In Admiralty. Steamer II. R. W. Hill, claimants and sureties, and Thomas H. Newell, .master.

“Final Decree. — The court having taken under advisement and carefully examined and considered the claimants’ exceptions to the admiralty commissioner’s report and assessment, and being satisfied from an examination of the evidence and the law hearing on the case, that the assessment of the commissioner is correct and that the libelant is' entitled to recover the full amount claimed in his libel, namely, the sum of $57,000; and it appearing of record, that the steamer EL R. W. Hill, on which the libelant has a lien and privilege for the satisfaction of his demand, was released from seizure herein March 15, 1853, on a bond or admiralty stipulation executed by Thomas H. Newell, part owner, on his own behalf and also on that of ■James W. Dyas, of New Orleans, and Amelia Elamilton, of Nashville, Tennessee, the other owners of said boat and claimants thereof, as principals, and by H. R. W. Hill and Robert Dyas, of New Orleans, as ■sureties, in the sum of $52,500, the appraised value of said boat, whereby the claimants and sureties did jointly and severally bind themselves, their heirs and administrators to pay the said libelant the amount awarded by the final decree in this cause; and it appearing, further, that Thomas H. Newell, as master of said boat, was personally cited, according to law, to answer the demand of the libelant: Now, therefore, the court doth order and adjudge, and it is hereby accordingly ordered, adjudged and deeseed that the libelant, Alexander Norton, recover of and from the said claimants and sureties and the respondent, Thomas H. Newell, the full sum of $57,000 and costs of ■suit to be taxed by the clerk, and that for the recovery of $52,500 of said amount he be entitled to process of execution against the aforenamed claimants and sureties, jointly and severally, their heirs, executors and administrators, according to the tenor of said bond or ■admiralty stipulation of March 15, 1853, now of record in this court.”

On appeal to the United States Circuit Court, this judgment was affirmed on the seventeenth November, 1858, and in December, 1865, was affirmed by the United States Supreme Court, with costs and interest until paid at the same rate per annum that similar judgments and decrees bear in the courts of the State of Louisiana,” and a mandate of execution directed to the Circuit Court in this State.

H. R. W. Hill, surety on the release bond, died in September, 1853, more than three years prior to the date of the judgment in the United States District Court, leaving James D. Hill his sole heir and legatee, who accepted the succession purely and simply, and when the appeal to the Circuit Court was taken, he became a party principal to the ■appeal bond for $500 for costs. On the sixth November, 1858, he made himself a party to said cause in the Circuit Court and joined in the appeal to the United States Supreme Court. On twenty-seventh February, 1859, he sold the property in question, which he inherited from his father in 1853, to the defendant, Jamison, and in the act of sale reference is made to the above judgment for $57,000, against which the vendor bound himself to protect’the vendee, and in the. certificate of mortgages annexed to said act the said judgment is seti out as in the name of H. R. W. Hill and J. D. Hill and recorded -against the property transferred.

The defendant enjoined the seizure on several grounds, only one of which we think it necessary to consider, to wit: That there is no judicial mortgage affecting his property, because H. R. W. Hill, surety, was dead long before the judgment against the claimants and sureties was rendered, and the suit was not revived as to his legal representative and heir, J. D. Hill, and the inscription does affect the property of defendant.

This, we think, is a correct legal proposition. If defendant die after issue joined, his heir should be cited; until this be done judgment can not be given against the succession. 5 N. S. 431. A judgment against one, who, though cited, dies before issue joined, is null. 8 An. 80. When H. R. W. Hill died, it was necessary to make his legal representative a party, otherwise the judgment was inoperative as to either, and the recording of it created no judicial mortgage on the property left by H. R. W. Hill. The fiction of law or its express enactment, by which he was a party to the proceedings, did not make his heirs or legal representatives parties in his person, and the insertion of the word “ heirs ” in the decree gave no force to the judgment against his heir and legatee any more than a judgment against any ■ person, eo nomine, who is not cited. The subsequent appearance of J. D. Hill as a party to the proceedings, in order to appeal from the Circuit Court to the Supreme Court, may have made him personally liable under the judgment rendered on appeal, but it could not retroact ! so as to give force to the inscription of the judgment of the District Court. Inscriptions of mortgages are strieti juris and must, of themselves, be complete and give all the information which the law intends is necessary for third parties. 5 N. S. 112; 7 An. 533. The judgment recorded was against H. R. W. Hill, but plaintiff alleges that H. R. W. 1-Iill died before the judgment was rendered, and claims that its 'inscription affected the property of J. D. Hill. But the inscription does not contain the name of J. D. Hill. At the time of the rendering and recording of the judgment against H. R. W. Hill the property in question did not belong to him, and no judgment against J. D. Hill was recorded at the date of his sale to defendant. Consequently, no' judicial mortgage attached to the property sold by J. D. Hill to the defendant by recording the judgment in question against H. R. W. 1 Hill, rendered after his death.

It is therefore ordered that the judgment appealed from be reversed,, and that there be judgment in favor of David Jamison, perpetuating, the injunction herein,-with costs in both courts.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 2935.
    Succession of Gross.—Administration and Tutorship of the Minor Heirs.
    A tutor is not entitled to charge the estate of his wards with board, if it be shown that they, the minors, were rendering him services in his house in attending to his household affairs, during the time he had them under Ms charge, to' an amount sufficient to compensate Mm for their board.
    Private books, kept by the tutor of amounts of money furnished and’ given to Ms wards, do-not make proof in behalf of the tutor who has kept them. C. C. 2249.
    A tutor who has property of Ms wards under Ms charge which yields a revenue, is personally liable, if he fails to collect the rent as it becomes due. The tutor also owes five per cent., per annum on all sums of money in his hands belonging to his wards which he has failed to invest. Sec. 3826, Revised Statutes of 1870.
    The tutor is entitled to charge ten per cent, on the amount of the revenues of his wards as a commission for administering their estate.
    APPEAL from the Second District Court, parish of Orleans.

      Dwvigneaucl, J. A. Gommandew and Gotton & Levy, for the Tutor, appellant.

      L>. O. Ldbatt and li. L. Preston, for the Heirs, appellees.
   Taliaferro, J.

This controversy has grown out of the administration of the successions of Henry Gross and wife and the tutorship of their minor children. Gross died in July, 1860 j his wife some years previous. John Ulmer was hoth administrator and tutor. Ho filed his-accounts of administration on the sixth of June, 1866, which seems to have been duly advertised and regularly homologated, no opposition having been made. By this account, it appears the administrator had in hand as assets of the estate $4788 25, out of which lie paid the debts, amounting to $1618 14, leaving a net balance of $3170 11. fiTm-e were three minors, two girls and a boy. The property consisted of a house and lot of ground in the parish of Jefferson, a house and lot of ground in the upper part of the city of New Orleans, and $3170 11 in the hands of the tutor. In January, 1870, the youngest of these wards, Henry, having attained the ago of eighteen years, was emancipated. Tiie administrator and tutor was required to make final settlements and put the heirs in possession oV their property. His account was filed in May following. By this account it appeared that the total amount collected and received by the administrator and tutor was-$6234 29, and the total sum paid out $9707 75, showing an excess of $3473 46 over the assets. This account was opposed by the heirs, and a protracted litigation ensued. The judge a quo sustained to a great extent the opposition to the account, and rendered a judgment greatly reducing the charges of the tutor and establishing a balance against him. From the judgment thus rendered the tutor has-appealed.

The real estate, it is shown, has- yielded a revenue since the death of the minors’ parents, which the district judge found, from the voluminous evidence introduced, to amount on an average to $450 per annum, and that the sum of $1436 36 cash in hands of the tutor might. have produced one hundred dollars per annum more, had the tutor invested it, as was his duty to do by law. The minors’ revenue would then have been $550 per annum. The charges made by the tutor for board and money furnished the minors constitute the items principally reduced. The charge for board was properly rejected m toto. The evidence is conclusive that from the commencement of the tutorship, the minors, and especially the two girls, were able to render and did render services in the house of the tutor while with him, and during a part of the time they lived with other families on service at small wages. It is shown that their services were amply worth their board. In like manner it seems to be shown that the boy was by Ms services able to compensate the expense of board. The charges for money furnished the minors are not fully sustained by the evidence. These charges the tutor aimed to establish by the exhibition' of an account book kept by him and by other evidence. To the introduction of this private ■book of the tutor an objection was made, but it was overruled by the judge, and a bill of exceptions reserved. We think the exception should have been sustained. Domestic or private books do not make proof in behalf of those who have written them. C. C. 2249 [2245], The oral testimony in regard to the money charged by the tutor is exceedingly contradictory and uncertain. It being fully preved that by proper economy in his administration, the tutor might have avoided expending the least part of the capital of his wards, his exhibit of a large balance against them is manifestly wrong and was justly rejected. He was properly charged, also, with the rent of the property for two years which he failed to collect. By the judgment of the court below the tutor was held liable for the following amounts received during his administration: $1436 36 received from the succession, $5487 received in rents of property, the aggregate being $6923 36. This sum he is condemned to pay after deducting the various credits allowed ; the remainder to bear interest at live per cent, per annum after judicial demand. The tutor is also condemned to pay interest at eight per cent, per annum on $1436 36, the amount not invested, 1 rom August, 1860, until paid.

The judgment's erroneous as to tho rate of interest the tutor should be required to pay. Five per cent, by the present law is fixed as the rate of interest tutors are bound to pay on money of their wards not invested by tutors, as required by law. C. C. 347 [341]. Revised Statutes, page 744, Sec. 3826.

There is an omission by the judge a quo in not awarding the tutor his commissions. In respect to the rate of interest prescribed by law to be paid by tutors where they fail to invest the money funds, and in regard to the commissions of the tutor in this case the judgment should be amended.

It is therefore ordered, adjudged and decreed, that the judgment, so far as it decrees the tutor to pay eight per cent, per annum on §1436 36, be annulled and reversed. It is further ordered, that the tutor be condemned to pay on the said sum of $1436 36, interest at five 'per cent, per annum from August, 1860, until paid; and that he he allowed ten per cent, commissions on the amount of the minors’ revenues, to he deducted as a further credit from the sum fixed hy the court helow as due hy the tutor to the minors; that, as thus amended, the judgment of the lower court he affirmed.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 1047.
    Robert McNamara v. John Clark.
    By a failure on the part of one of the contracting parties to comply with the stipulations of the contract, the other party may, hy first putting him in default, recover the damages sustained on account of such failure.
    APPEAL from Sixth District Court, parish of Orleans.

      Bullan tier, J. Jamas _D. Augustin and 8. Myers, for plaintiff and appellee.

      Buchanan t& Gilmore, for defendant and appellant.
    This case was tried hy a jury in the court helow.
   Ludeling, C. J.

In May, 1863, Robert McNamara and John Clark entered into an agreement whereby the latter agreed to pay the former fifteen hundred dollars to excavate the foundations of a draining machine within two months from the date of the agreement. The plaintiff commenced the work and progressed with it until he was stopped hy the overflow of hack water from Lake Pontchartrain. The •defendant then proposed that if the plaintiff would build a road over which to carry tLe pump to the excavation, he would furnish a steam pump. This was acceded to hy the plaintiff and the road was built. After some delay the plaintiff wrote a letter to the defendant, complaining of the non-observance of his part of the contract and notifying him that he was ready to proceed with the work as soon as the steam pump was furnished. The defendant did not furnish the punip and the plaintiff quit the work and instituted this suit for damages.

The case was submitted to a jury, who rendered a verdict in favor of the plaintiff for two hundred and fifty dollars. The term of the first agreement was extended hy the second agreement; the plaintiff performed his part of the second contract and put the defendant in default. C. C. 1913 [1907]; 3 La. 385.

"We see no good reason to disturb the verdict of the jury.

It is therefore ordered and adjudged that the judgment of the lower court he affirmed, with costs of appeal.


author: Howell, J.

text:
    No. 2274.
    John Davidson v. Carroll, Hoy & Co.
    The reasons given by the court for judgment form no part of the judgment itself, and the judge of the lover court is not bound by any expressions used by the Supreme Court outside of the decree. Therefore, the decree of the Supreme Court vkick remands the cause to be proceeded vith according to lav, can not be taken by the judge a quo as finally deciding the questions at issue botveen the parties.
    APsPEAL from Seventh District Court, parish of Orleans.

      Gollens, J. Lacey & Butler and J. D. Bill, for plaintiff and appellant.

      Bandolph, Singleton <& Brownp, for defendants and appellees.
   Howell, J.

This case was before this court in 1868, and is reported in 20 An. 199, where the facts are succinctly stated. This appeal is taken by plaintiff from a judgment awarding to defendants a pro rata portion of the proceeds of certain property sold in the suit of Davidson v. Davis & Cofield.

In the former appeal, the court, after stating the law, that defendants, Carroll, Hoy & Co., who were the sureties of Davis & Cofield for the payment of certain mortgage notes of plaintiff, as a part of the price of the property in question) were hound to, and not for, plaintiff, and in paying said notes to the holders extinguished the debt of plaintiff and acquired no mortgage or privilege on the property, used the following language: “ By effect of sale from Davidson to Davis & Cofield, the vendor’s privilege was created on the land to secure the payment of the assumption they made to pay his notes, as well as to secure payment of their own notes, which they gave to him;, and Carroll, Hoy & Co. have, by legal subrogation, the vendor’s privilege on the land, which avails as a mortgage to, secure the amouut they paid as securities on the assumption of Davis & Cofield, with interest, and they must he paid out of the proceeds of the laud ratably with Davidson.” So much of the judgment, then appealed from, as decreed that defendants had no mortgage or privilege, was reversed, and the case was remanded to he proceeded with according to law.”

The district judge considered the above opinion as authority binding upon Mm and as finally deciding the legal rights of the parties, and that he only had to settle the proportions of each party thereunder; and the defendants maintain the same position before us.

It is well settled that the reasons for judgment, strictly speaking, form no part of the judgment itself. The decree in this instance simply reversed a portion of the judgment appealed from, and remanded the cause, to he proceeded in according to law. This left the question embraced in. that portion of the judgment undecided, and directed that the case should he tried according to law.

It seems clear that, under the law and the facts presented in the record now before us, the defendants, as securities to plaintiff and hound to see the notes in question paid to the release and acquittance of plaintiff, can take nothing until he is fully paid, that is, they can take only in case there is a surplus coming to their principals, Davis & Cofield, for whom they were sureties. This was practically decided in the first portion of the former opinion, and what was said in that part above quoted, does not preclude us from passing on the question as one of law, inasmuch as the decree leaves it open.

It is therefore ordered, that the judgment appealed from be reversed; and it is further ordered, that there be judgment in favor of plaintiff for the amount of the proceeds of the property in controversy in preference to the defendants, who can take only after the amount due plaintiff and his bonders is paid. Defendants to pay costs in both courts.

Rehearing refused.


author: Wylt, J.

text:
    No. 1704.
    Peter Ross v. S. Johnstone.
    In a suit on a promissory note against the maker, parol evidence is admissible to show an interruption of prescription. Section 2 of the act of 1858, No. 208, page 118, requiring written evidence to prove acknowledgment so as to interrupt prescription by persons deceased, does not apply to cases where the maker of the note is living.
    The burden of showing that the noto srrod upon has been paid, falls upon the party who makes the plea; and the exhibit of an open account against the holder of the note, can not be pleaded in compensation or payment of the note.
    APPEAL from the Fifth District Court, parish of Orleans.

      Eeaumont, J. Eelloios & Mills, for plaintiff and appellee.

      Edmund O. Kelley, for defendant and appellant.
   Wylt, J.

The defendant, sued as the maker of a promissory note, has appealed from the judgment against him thereon.

The defense is the plea of prescription of five years and the plea of payment.

Our attention is directed to -the bill of exceptions taken by the defendant to the introduction of parol testimony to prove the interruption of prescription. We think the evidence was properly received by the court; and the act of 1858, requiring written evidence to establish renunciation of prescription, has no application whatevei to the character of evidence necessary to prove an interruption of prescription. The evidence adduced establishes the interruption

As to the plea of payment, it was the duty of the defendant making it to prove it affirmatively and beyond doubt. This he has not done.

The transactions of the parties in the running account between them have no direct connection with the note declared on; and an open account can not be pleaded in compensation to a note.

We think the plaintiff should have damages for frivolous appeal, as prayed for. Let the judgment be affirmed, with ten per cent, damages thereon.


text:
    No. 2764.
    Succession of Marie Aimee Carraby, deceased.—On Opposition of Ines Peyroux to Account of Tutor.
    A judgment that has been signed by the judge after the lapse of three judicial days from-its rendition, can not be opened by a new trial. C. P. 558. The remedy of the party aggrieved in such a case is by appeal.
    APPEAL from the Second. District Court, parish of Orleans.

      Duvigneaud, J. Charles Louqwe, for appellants.

      Gharvet & Fuffilantier,. for appellees.
   Taliaferro, J.

The opponent obtained a judgment against Peyroux, tutor, on the fourteenth of April, 1869, which was signed on the nineteenth of that month. On the ninth of November following, Peyroux filed his application for a new trial, which was granted, and. judgment was rendered on the second trial in January, 1870, dismissing the opposition and homologating the tutor’s account. Prom this, judgment and also from the order granting the new trial, the opponent has appealed. On heariug of the rule for a new trial, evidence was offered by the plaintiff in rule and objected to by the defendant, but was received by the court. The grounds of objection are embodied in a bill of exceptions, and are:

First — That a rule for a new trial can not be entertained after a judgment regularly rendered has been regularly signed, as was done, in this case.

Second — That the judgment being final, a rule for a new trial was-irregular, and that no evidence was admissible under it.

Third — That evidence can nob be received touching matters concluded by the judgment.

Within three judicial days after the rendition of judgment, a party believing himself aggrieved by the judgment may pray for a new trial. C. P., art. 558. This right is not affected by a premature signing of the judgment. 5 N. S. 224; 4 An. 561; 6 An. 251; 20 An. 168. But when a judgment is signed after the delays prescribed by article 546 of the Code of Practice have expired, error in the judgment so-signed can not be corrected by a new trial ex officio; the remedy is by appeal. 9 Rob. 50; C. P. 547; 6 L. R. 69. In the case before us, it seems the judgment was not signed until after the lapse of three judicial days. We think, therefore, the judge erred.

It is ordered, adjudged and decreed that the order granting the new trial and the judgment rendered thereupon and appealed from, be avoided and reversed; that the judgment first rendered by the lower court be recognized as in force, subject to such future action as may be legally taken in regard to it, the appellee paying costs in both courts.

Rehearing refused.


author: Wyly, J.

text:
    No. 2917.
    The State ex rel. Joseph L. Montieu v. Ursin Lavigne.
    The act of 18(34, creating the office of tax collector for the several parishes of the State, was repealed by the statute of 1868,/ entitled “An Act to provide a revenue for the State government, and the manner of collecting the same.” Therefore the office of tax collector, under the act of 1864, became extinct by the passage of the act of 1868, and such officer elected under that act must give way to the officer designated by the act of 1868 to collect the taxes.
    In a proceeding under the intrusion act, ÜÑTo. 156 of 1868, to test the right to an office, the party claiming the office may be joined, and if it be ascertained that he is entitled thereto, he will be so recognized in the decree which pronounces the incumbent an intruder.
    APPEAL from Second District Court, parish of Jefferson.

      Tar dee, J. Z. McKay, District Attorney, for relator, appellant.

      Cotton c6 Levy and K. Commandeur, for defendant and appellee.
    This case was tried by a jury in the court below.
   Wyly, J.

The relator has appealed from the judgment on the verdict of the jury in favor of the defendant, who was proceeded against, under the “intrusion act” of 1868, for usurping the office of State tax collector for the parish of Jefferson, which said office is claimed by Joseph L. Montieu, by virtue of his appointment and commission from the Governor, dated twentieth April, 1870, under act No. 68 of the acts of 18/0.

The respondent avers, in his answer, that at the April elections of 1868 he was July elected State tax collector for the term ending the first Monday of November, 1870, or until his successor was elected; that having been duly commissioned by the Governor he qualified according to law, and lias administered the office to date. Respondent further specially pleads that he holds under and by virtue of the one hundred and fifty-fourth and one hundred and fifty-eighth articles of the Constitution of 1868 for the term above set forth, and that neither the Legislature nor the Governor can displace or remove him in the manner attempted.”

It will hardly be contended that the articles of the Constitution relied on prohibited the Legislature from repealing the statute of 1864, creating the office of tax collector, to which the respondent was elected, because they contain no express prohibition; and, in the absence thereof, it is evident that the power to enact a law necessarily implies the power to repeal it.

The question is, was that part of the act of 1864, creating the office of tax collector, repealed by the act of twenty-first October, 1868, “An Act to provide a revenue to support the State government, and the manner of collecting the same.” This act provides for the appointment of an assessor and defines his duties; it also provides, section 44, “ that the assessor in each and every parish of the State, except the parish of Orleans, shall collect the State and parish -taxes of his parish.” And by section 78 all laws or parts of laws contrary to the provisions of this act are repealed.

If the statute' of 1868 makes it the duty of the assessor of each parish, in addition to his other duties, to collect all State and parish taxes, and repeals all laws contrary to this provision, we do not see how the office of tax collector can exist, or how the officer elected to ■administer it can do so, without conflicting with the act of 1868 providing for that duty to be performed by another officer.

A fair interpretation of the law leads us to the conclusion that the office created by the act of 1864 and claimed by the respondent, was abolished by the sections of the revenue act of 1868 to which we have referred. Of course the term, for which this officer was to hold, did not continue after the repeal of the law creating the office; for it would be absurd to say there is an unexpired term to an office that has «eased to exist

The evidence shows that Joseph L. Montieu, appointed under the revenue act of 1870, is entitled to the office in dispute.

It is therefore ordered that the judgment appealed from be annulled; that Joseph L. Montieu be declared entitled to the office to which he was appointed under act No. 68 of the acts of 1870, and the respondent be excluded therefrom and be declared an intruder, and that he pay costs of both courts.


text:
    No. 1991.
    Chas. Case, Receiver, etc. v. John W. Cannon.
    In case of insolvency, compensation cannot take place, if tlie debtor of the insolvent acquires the claim proposed to bo compensated after the failure of the insolvent.

      APPEAL from the Fifth District Court, parish of Orleans.

      Leaumont, J. J. D. Bouse and G. L. Bright, for plaintiff and appellee.

      B. & B. Marr, for defendants and appellants.
   Ludeling, C. J.

This is a suit on two promissory notes, drawn by JohnW. Cannon, for $3,500 each, maturing respectively twentieth May and nineteenth June, 1867.

The notes were discounted and hold by the First National Bank of New Orleans. The bank failed on the thirteenth May.

The checks-or bills of exchange drawn by the First National Bank of New Orleans, acquired by Cannon after the failure of the bank, can not be pleaded in compensation of the debts which he owed the bank.

When the Eeceiver was appointed, it became his duty to collect the debts of the bank and to pay over the money to the Treasurer of the United States, to be ratably distributed by the Controller among the creditors of the bank. U. S. Statutes at large, vol. 13, p. 114, sec. 50.

It is well settled in this State, that compensation can not take place when the debtor of an insolvent acquires the claim, proposed to be compensated, after the failure of the insolvent. 2 La. 82; 2 An., Dwight et al. v. Carson, Adrn’r.

The'appcllee has prayed for an amendment of the judgment in his favor as against John W. Cannon, and we think the evidence fnlly authorizes the change prayed for.

The judgment against David C. McCann is clearly erroneous; there is no evidence to support it, nor is he a party to the suit.

It is therefore ordered, that the judgment of the district court as to David C. McCann be avoided and annulled; and it is further ordered and adjudged, that there be judgment against John W. Cannon for the sum of seven ■ thousand dollars, with eight per cent, per annum interest from eighteenth of March, 1868, till paid, and six dollars and sixty cents costs of protest, and costs of both courts.


text:
    No. 2881.
    Murdock & Williams v. Citizens’ Bank of Louisiana.
    In a case of a confidential contract arising from irregular or special deposits with, a hank, compensation does not take place, and tlie depositary is not authorized (under the pretense that a custom exists to that effect) to apply the funds on- deposit to the payment of the debts of the depositor. 2 An. 23;' 11 An. 73; 10 It. 200.
    In this case, the evidence shows that a special deposit was made in coin; that the bank soon after suspended specie payment; that a promise was made "by the bank and inserted in writing in the bank-book of the depositor, that so soon as the bank resumed specie payment, it would return the same in coin. The parties had subsequent transactions, predicated on Confederate notes as bankable funds.
    The hank now seeks to avoid the payment of the deposit in coin, on the grounds that the depositor had, since the deposit, hecomo indebted to it, which, by a custom among „ bankers, it had extinguished by crediting the amount on the indebtedness of the depositor; that it was authorized and- protected in making this credit by a military order of the General of .the army of the United States in command at the time.
    Held — That if such a custom existed, the bank could not avail itself of it in this case, because the law did nob authorize it unless under a special mandate from the depositor; that the bank could not claim protection under the military order, because the money ■was not taken from the vaults of the hank and appropriated to the payment of the debts of the depositor under such order.
    APPEAL from the Sixth District Court, parish of Orleans.

      Cooley, J. J). 0. Labatt, for plaintiffs and appellees.

      Arniancl Pitot, for •defendant and appellant.
   Howell, J.

The plaintiffs have sued the defendant for the sum of $2300, payable in coin, as the balance due them on deposit on the sixteenth September, 1861, when the bank suspended specie payment, and which sum, they allege, the defendant stipulated to keep as a special deposit, not to be drawn out until the end of the war. The defendant pleads the general issue, admits that plaintiffs had an account with it, which was closed on the tenth February, 1863, by the bank’s taking in part payment of plaintiffs’ indebtedness to it the sum of $2006 94, the balance then on deposit, and leaving the plaintiffs, debtors to the bank in the sum of $2093 06, with eight per cent, interest from August 9, 1862, which it claims -in reconvention, on the following grounds, to wit: That it is the holder of a note for $3100,. made by Hughes, Hyllested & Co., indorsed by plaintiffs, duly protested on ninth August, 1862, and notice given to the indorsers; and a note of J. D. Richardson for $1000, indorsed by plaintiffs, protested on tweuty-third June, 1862, and notice given to the indorsers; that-the balance of $2006 94 to the credit of plaintiffs was applied on said tenth February, 1863, by the bank as follows: To the extinguishment of the Richardson note, $1000, and part payment of the Hughes, Hyllested & Co. note, the sum of $1006 94, leaving a balance due on said last note of $2093 06, for which judgment is prayed, and it files a-copy of plaintiffs’ bank account extending from September 4, 1861, to> February 10, 1863, showing the above figures.

The plaintiffs having alleged two distinct accounts, one prior and the other subsequent to the sixteenth September, 1861, and the loss of of their bank book, propounded interrogatories to the defendant to-ascertain the exact amount due at said date; whether it has been drawn against and how; whether a new account was kept after Confederate, money became bankable funds, and what is the condition of their account with the bank. To these the president answered, that the-balance to the credit of plaintiffs on sixteenth September, 1861, was $1084 83, and that plaintiffs continued to deposit and draw cheeks, as-shown by the copy of the account filed; that they had but one account, and the balance to their credit on tenth February, 1863, was disposed of, as set out in their reconventional demand.

The account filed shows but one continuous account, which was balanced on twenty-fifth September, fourth October and ninth December,. 1861, twelfth February and eighteenth March, 18G2, and tenth February, 1863. The deposits and checks appear frequently and continuously from fourth September, 1861, to fourteenth April, 1862, and checks to-first May, following, and on the tenth February, 1863, the appropriation was made as described by defendant. Asa witness on the stand, the president of the bank states that it is a custom and standing rule with the banks of this city, when a depositor has funds to his credit and neglects to pay a note discounted by him, to debit him with the amount of such note; that when General Banks, by order No. 202,. sequestered certain moneys, the names of plaintiffs were in the list furnished to the bank as being subject to the order, and the president of the bank obtained permission from the commanding general to deduct the balance in its favor from the notes as above described. To this evidence it appears plaintiffs’ counsel objected, but as no bill of exceptions was taken,.we can not notice the objections.

The following is admitted to he the contract in the lost bankbook,“On the resumption of specie payment by this bank, your balance oil the sixteenth September, 1861, or any portion thereof not drawn for, will be paid to you in coin. All deposits since that date are payable in treasury notes of the Confederacy, as proven in- suit No. 20,124, Fourth District Court, Citizens’ Bank v. Condran.” The record of the suit of Citizens’ Bank v. Murdock & Williams, in the district court, parish of Tensas, is in evidence. The suit was brought on the Hughes, Hyllested & Co. note, subject to the above mentioned credit, and the plea of prescription was interposed by the defendants therein, plaintiffs here, was sustained by the court and the judgment affirmed on appeal.

Tile clerk of the plaintiffs testifies that the balance due on sixteenth September, 1861, was $2100 or $2200; that two distinct accounts w,ere then made, and that there was a special agreement with the bank that the said balance was to be kept as a special deposit until the end of the war; that it has not been drawn for; that no authority was given to the bank to make the appropriation, as ivas done, and that plaintiffs were not aware of it until he informed them after inquiring of the president if it was subject to the check of one of the plaintiffs. Murdock’s deposition corroborates the foregoing iu the main.

The first question is, has the coin balance to the credit of the plaintiffs, or any part of it, been drawn out by them ? The president of the bank says it has been drawn against, as shown by the account filed. A reference to this account, in connection with the siiecial agreement contained in the bank book of plaintiffs, does not sustain this position. It shows that, between the sixteenth September, 1861, the date of specie suspension, and the twenty-fifth of the same month, when the first balance was struck in said account, the plaintiffs had deposited more than they checked out; and at each subsequent date, when a balance was struck, the same fact appears. By the act of suspension of specie payments and the terms and intent of the “agreement” or “contract” m the bank book, the dealings, after the sixteenth September, were to be in Confederate treasury notes, and it was incumbent on the bank, under the above state of facts, to prove specifically that this particular coin balance was specially drawn for. It is not to be presumed that an ordinary check, after said date, was paid in coin, for the bank had suspended specie payments.

But the bank contends that the balance of $2006 94 to the credit of plaintiffs on tenth February, 1863, which excluded the coin balance, was appropriated in part payment of plaintiffs’ indebtedness on the two notes above referred to, and to establish this the testimony of the president as to a custom is relied on. It is true the president does state that such a custom exists, but the facts of this case, as stated by him, show that this bank did not follow such a custom, if it existed. The two notes fell due, respectively, on Juno 23 and August 9, 1862, and the deduction .or appropriation was not made until tenth February, 1863, and then only by special permission from the commanding general, as stated. If it was a custom with this and other banks to debit a delinquent depositor with the amount of his unpaid note, when he had funds to his credit, it would seem reasonable and business-like for the bank, in this instance, to have followed this custom and made the appropriation or debit when the notes fell due, and there would have been no necessity to appeal to military authority for permission to do so, some six or eight months afterwards. This action of the bank shows that it did not act upon, or have much confidence in, such a custom as, it is now pretended, existed. ,

In the case of Morgan v. Lathrop, 12 An. 257, it was decided that it is settled law in this State that in the confidential contracts arising from irregular deposits of this nature, compensation does not take place, and the depositary is not authorized to apply the funds on deposit in his hands to the payment of the debts of the depositor, «except there is a special mandate from him, the depositor, or a course of dealing which will justify such application of the funds. See 7 An. 35; 2 An. 25; 10 R. 200; 11 An. 73. No such special mandate or course' of dealing is shown in'this case to justify such application.

The bank can not claim protection by a military order, for the money was not taken under such order. Nor can it profit by the result of the suit in Tensas parish, for this question was not raised there. The petition in said suit did not set out the manner in which the alleged credit on the note therein sued on was made, and, indeed, no mention was made of any credit, but the whole amount of the note was demanded, and the plea of prescription could not, under the circftmstanees, be an admission of the right to make the credit as claimed, if, indeed, it could under any circumstances. That plea is now become res judicata as to this note, and plaintiffs must recover the coin balance claimed by them. The judge a quo, however, erred in awarding more than this particular balance. The additional sum of $922 11, allowed by him, appears to us, from the evidence and especially the bank book, to be in Confederate treasury notes, for which no judgment can be given.

It is therefore ordered that the judgment appealed from be reversed, and it is now ordered that defendant’s reconvontional demand be dismissed; that plaintiffs recover of defendant the sum of $1084 83, with legal interest from fifteenth June, 1869, payable in coin, and all costs in the lower court; plaintiffs and appellees to pay costs of appeal.

Rehearing refused.


author: Howell, J. VVylt, J., Taliaferro, J.,

text:
    No. 1938.
    R. A. Lucas, Wife et als. v. Ellen C. Brooks et als.
    If the loss or destruction of an olographic will or a sealed letter, which it is claimed is a part of the will, ho shown, the legatee claiming under the will or the scaled letter, may ]: establish either tho contents of the will or the sealed lettor, so lost or destroyed, by secondary evidence. And if it be alleged and shown by the legatee, who claims under the sealed letter, that tho universal legatee under the will, into whose possession the sealod letter came, fraudulently concealed or destroyed it, then, and in that case, tho court will apply, in favor of the party claiming under the sealed letter as a part of tho will thus lost or destroyed and against the spoliator, the maxim, omnia, preesumuntur contra spoliatorem. But this rule will not be appliod unless tho evidence makes it certain that the universal legatee, into whose possession tho scaled letter came, concealed or destroyed it for the purpose of defeating its bequests.
    "Where a sealed letter, which accompanied the will, lias boon lost or destroyed, which sealod letter it is claimed constituted a part of the will, is sought to bo established by secondary evidence as forming a part of the will, which has been admitted to probate, all the evidence necessary to establish the validity of an olographic will must bo produced. 'f he signature of the sealed letter, claimed to be a part of tho will, must be proved in tho same manner and by the same kind of testimony that are required to prove tho signature to the will itself. If the evidence and presumptions in the record are sufficient to establish that the sealod letter was written and dated by the testator, this fact, couplod with the presumption that men generally sign all lottors written.by them, is not sufficient to justify the court in concluding that the sealed letter, claimed to be a part of the will* was signed by the testator.
    APPEAL from the Second District Court, parish of Orleans.

      Thomas, J. Campbell, Spofforcl & Campbell, for plaintiffs and appellants.

      Conrad & Son and C. Boselius and Alfred Philips and Bandall-Runt, for defendants and appellees.
   Howell, J.

James H. Shepherd died in New Orleans on the twenty-seventh of July, 1837, leaving no descendants, but a mother, four brothers, a sister and the children of a predeceased sister, residing out of this State. Among his papers was found an envelope bearing a superscription in his handwriting, as follows: “ Inclosing J. H. S. will and a communication to R. D. Shepherd, in case of his death, Abraham Shepherd.” Upon being opened by the probate judge on the twenty-ninth July, 1837, two documents were found, on© indorsed:

“J. H. Shepherd

Last olographical will and testament.

New Orleans, December 22, 1832.

Wafer [J. H. S.] seal f

the other a sealed letter addressed to Rezin D. Shepherd, or, in case of his death, Abraham Shepherd j” both indorsements in the handwriting of the deceased. The will was duly probated, Judah Touro and Jonathan Montgomery were appointed dative testamentary ' executors and they entered upon tho administration of tho succession, which was inventoried at $616,694 69, and C. M. Conrad, Esq., was appointed attorney for absent heirs. The will is in the following words :

“I, James Harvey Shepherd, of the city of New Orleans, merchant, considering the uncertainty of this life, do make this, my last will and testament, as follows, that is to say:

First — I give and bequeath unto my brother, Rezin Davis Shepherd, all my estate, real and personal, and he is hereby authorized to take possession of the same without the intervention of any court of justice; should he, however, not survive me a sufficient time to take full possession of my estate, I then leave the same to my brother, Abraham Shepherd, who is hereby authorized to take possession in the same manner as my brother Rezin Davis, should he survive me.

Second — I now revoke all former wills and testaments made by me, but this, my last, which I confirm.

New Orleans, December 22. 1832.

J. H. SHEPHERD.”

In December, 1837, R. D. Shepherd, who resided in 'Baltimore, Maryland, was recognized as the sole heir and legatee under this will, and, after a formal renunciation, by his mother, dated in September, 1837, was subsequently, by order of court, regularly put in possession of the whole estate and so continued as sole owner, using and disposing of it until his death, in November, 1805, when he bequeathed all his property, without distinction, to his daughter and her two sons, the defendants herein. The mortuary record of the succession of J. II. Shepherd does not show what became of the sealed letter addressed to R. D. Shepherd, but it appears in this record that it was handed to Mr. Touro in court on the day of the probate, to be forwarded according to its address, and that it came soon after into the hands of Rezin in Baltimore.

This suit was instituted in February, 1867, to procure from his legatees the production thereof, to ascertain its contents, import and intention, and to give authenticity and effect to it as a part of the will of J. H. Shepherd.

The plaintiffs, who are some of the children and descendants of Abraham and Henry Shepherd, brothers of the testator, allege that the said “ sealed letter ” was testamentary in its nature and import; was written, dated and signed by the said James II. Shepherd; that it has been concealed, suppressed and destroyed by Rezin D. Shepherd, whose duty it was, as well as of the said executors, to present it to the court for probate; that the two papers constitute the will of the deceased, the dispositions of which can be carried into effect, although upon the face of them there may be a purpose to evade the laws of Louisiana and there may be clauses in them which create substitutions and fidei commissa; that some of the provisions of the sealed letter, which radically changes the dispositions of the probated paper, have been carried into effect by the said • Rezin, who admitted that it was obligatory in form and binding upon him in good conscience, and they propound the following as in substance the contents thereof, taken from a letter written by Abraham Shepherd to one Edmund J. Lee, to wit:

“Extract from a letter to me from R. D. Shepherd, dated ninth October, 1838 : Mr. Touro has the original letter in his possession, a ■copy of which you have seen, (I mean the sealed letter left by James with his will,) and this directs that mother shall renounce all claim to the estate and that Ann shall have only $5000, Moses nothing, Eliza $10,000, the residue to be divided amongst his nephews and nieces, ■double as much to the boys as girls; but all these things you know, as you have Seen the letter.”

“ The sealed letter,” adds Mr. Abraham Shepherd, “ above alluded to also excludes expressly my brother Rezin’s daughter from any part •of this estate, stating as his reasons that Rezin would be enabled to provide amply for her himself. It contains also a legacy, I think, of $2000 to George Lee, his clerk, and one of his gold watch to Mr. Touro. My brother Rezin is to have full control of the estate, after distribution of these legacies, during his life, with the power of excluding any of the nephews and nieces referred to, should they, by vice or crime, become degraded or unworthy. Such part of the estate .as’ may be necessary for his use and comfort he is authorized to appropriate thereto, and is requested to make a will immediately that shall •dispose of his estate at his (that is Rezin’s) death agreeably to the above directions.

“The recorded will briefly devises the whole estate to R. D. -Shepherd, and in case of his not acting, precisely in the same manner to myself, thus clearly intending that either of us should hold it •subject to the instructions of his (James’s) sealed letter, that is, as trustees for his nephews and nieces referred to.

(Signed) AB. SHEPHERD.”

In the original letter the words, “ Henry’s and my children,” follow the words, “ referred to,” but are omitted in the petition.

The plaintiffs pray for citation of defendants and all parties inter•ested, and that the authenticity and legal effect of said testamentary paper be established, an account of said succession be ordered, the rights of the parties as heirs at law or legatees under said will, including the sealed letter, be fixed and a partition made according to the laws of Louisiana applicable to this succession. They do not pray •expressly or explicitly for the probate of the said document as the will of the deceased and an order for its execution, but in an annexed petition they declare that they have presented it for probate, and it may be the necessary implication of their allegations and object of their suit, otherwise there is no cause of action.

The defendants deny any knowledge of the “sealed letter,” set up title under the will of Rezin D. Shepherd, the renunciation of his mother, the plea of res judicata and the prescriptions of five, ten and twenty years.

The first question for solution is: Is the sealed letter ” the will or part of the will, in olographic form, of James H. Shepherd?

A testament is the act of last will, clothed with certain solemnities, by which the testator disposes of his property, either universally or by universal title or by particular title. C. C. 1564.

The name given to the act of last will is of no importance. If it be clothed with the forms required for the validity of a testament and the clauses it contains or the manner in which it is made clearly establish that it is a disposition of last will, it is a valid testament. C. C. 1563.

The formalities to which testaments are subjected by the provisions of the code, must be observed, otherwise the testaments are null and void. C. C. 1588.

The olographic testament, to be valid, must be entirely written, dated and signed by the hand of the testator. C. C. 1581. It must be acknowledged and proved by the declaration of two credible persons, who must attest that they recognize the testament as being entirely written, dated and signed in the testator’s handwriting, as having often seen him write and sign during his lifetime. ’ C. C. 1648. And these declarations shall be taken in writing, signed by the witnesses and recorded. C. P. 939 et seq.

This proof has not been adduced in this case and no witness testifies to having ever seen the instrument under consideration. It is true, however, that a communication in writing addressed to, and received by, R. D. Shepherd, was found in 'the envelop with the will which was probated, and the plaintiffs have undertaken to prove it as a will lost or destroyed, upon the principle, which seems to be settled, thac in case of the loss or destruction of an olographic will, the legatee may establish it by secondary evidence. See 11 An. 124 and authorities there cited

In the effort to do this they allege and claim to have proved that the-sealed letter was testamentary in its purport and was fraudulently concealed and destroyed by R.D. Shepherd, under the maxim omnia prwsumuntur contra spoliatorem and the direct evidence adduced by them, and that under the operation of this maxim, together with the fact that men generally sign all letters written by them, we must presume that this letter, admitting it to be written and dated by the testator, was also signed by him. The fact that men generally sign their letters, can have little effect in proving the signature to an olographic will. It is just as necessary to prove the signature as the date and handwriting, and the failure to prove either one by some competent evidence will render the testament invalid. Custom is not admitted as proof of either. And the fact that private letters are sometimes not signed, will leave uncertainty at least. But conceding that the solemn formalities of an olographic will may be established in Louis*iana by presumption, do tbe facts developed in tbe record warrant tbe application of the maxim, thus invoked against the defendants, and so supply the proof? We think not. It is clearly shown that in August or September, 1837, soon after the death of James and before Rezin came to New Orleans to take possession of the succession, Abraham,, the father of some of these plaintiffs and an attorney at law, was shown a copy of this sealed letter and knew then as much of its character and contents as afterwards or as plaintiffs now do ; and that in October, 1838, he wrote the letter, which is propounded as the substance of the will which they ask to be probated and in which is the extract from a letter of Rezin, informing him, and others through him, that the original letter, the sealed letter,” was then in the possession of Mr. Touro. In several other letters to Abraham during that and the succeeding year, Rezin alludes freely to the contents of this letter and his own views and purposes in regard to it. It was also equally known to the mother, when in 1837 she renounced, and to Moses, another brother. In August, 1839, Rezin wrote to his sister-Ann, describing it fully and telling her that he had shown it to Abra-' ham, to Mr. Touro and Mr. Montgomery, and had deposited it with his will. In the same month he wrote on this subject to E. J. Lee, also a lawyer and the surviving husband of his sister, Eliza, and to whom Abraham had, in October, 1838, written the letter copied in the petition. In April, 1844, he again wrote to Lee, giving the purport of said sealed letter; and in March, 1849, he wrote to Lee and his brother, Iienry, the father of the other plaintiffs, on the same subject, giving his own construction of the letter and its scope and intent. Robert Lucas, connected with one of the plaintiffs, testifies that, In 1859, he alluded to the contents of said letter in a conversation with Rezin, who replied that he then had it. The depositions of Lee, William Lucas and others show that the existence, nature and contents of said letter were known to, and frequently discussed by, the several branches of the Shepherd family soon after the death of James and since.

Under these circumstances there was no such concealment, suppression or deception as to authorize the invocation of this maxim against Rezin himself. A very strong case must be presented to warrant the charge, under any circumstances, that a private sealed letter has been concealed or suppressed, to the prejudice of third parties, by the person to whom it is written. The law and society attach deserved inviolability to private correspondence, and courts of justice are careful rather to guard than invade that inviolability. The action of the probate judge in turning over this letter to those seeking the probate of the will, to be delivered as addressed, was in accordance with, and justified by, this principle.

There is no proof in the record that Rezin destroyed this letter, and the defendants never saw it. The destruction of books and papers, which occurred in 1855, was of mercantile effects, and prior to the date at which plaintiffs prove it to have been in existence. No one ever made a demand on Rezin for the production or view of the letter, or took any step to assert any right under it during his lifetime. The plaintiffs or their parents have known for thirty years what they now know, and what they ask the court to accept as a will. If it Vas believed that this “ sealed letter ” contained testamentary dispositions in favor of those now claiming, its production could have been secured during the lifetime of Rezin, or at least the proper effort should have been made

But can this presumption, if applicable as against Rezin, be invoked against these defendants, who, it is admitted, know nothing of the existence or nature of the letter ? The charge made is a crime, and it is carrying the doctrine too far to apply it to parties totally ignorant of, and not responsible for, the personal crimes of another. It is truly said the defendants will benefit by the crime of their ancestor, if committed, and yet it is not from that solely, but also from the neglect of plaintiffs or their ancestors to urge their demand when they might properly have invoked this rule of evidence. They should not profit by their own fault, nor be exempt from the consequences of their ancestors’ fault, any more than the defendants from that of their ancestors. To apply this rule in this case would make titles to property derived from testaments most precarious.

The law has provided for the transmission of property at the death of the owner, but has given to the owner the right to modify and change this order under certain fixed conditions, a compliance with which is essential. When the prescribed conditions and forms are shown plainly to have been observed, and rights of property are vested and enjoyed for a series of years under them, something more than suspicion, inference, surmise or presumption, drawn from a fragmentary family correspondence, covering many years, is required to overturn what has been done apparently in strict conformity with law, and has regularly received the sanction of the appropriate tribunal of justice. We do not pretend to imply that a will, made in legal form and executed under an order of court, may not be set aside. But we do say that when, as in this case, the attempt is made after a lapse of nearly a third of a century, and the immediate actors have passed away, the parties who make it and do not show surprise, recent discoveries of their rights, or some good cause for such delay, must be held to the strictest proofs.

The plaintiffs have not cited any authority in our State, where the formalities of an olographic will have been established under the maxim as invoked liexe, and we have been nnable to find any. Some French and English works áre quoted with much confidence as supporting such a doctrine, but it is well to bear in mind that the law, in Louisiana, in relation to the form and proof of olographic wills, differs in some important respects from the law on the same subject in the ■countries referred to. An examination, however, of those cited shows them to be actions against the immediate legatees or devisees, and in cases where they were called on by due process, and had been shown to have committed suppression, mutilation or destruction. The cases most analagous are reported in Dalloz’ Jurisprudence Generóle, and in them the parties held liable had been proceeded against correcti/vehj [criminally], and found guilty of having mutilated, concealed or destroyed second wills, by which the first, under which they held, were revoked or supplemented, and the courts decided that the principle, •on which the maxim invoked herein is founded, should apply. Without expressing concurrence or dissent as to the reasoning and decisions in those cases, we need only remark that the law and facts thereof do not apply to this. As the rule does not apply, we can not say the •defendants are not permitted to object, that it is not shown that the instrument was in due form, and to require direct proof thereof, which proof has not been furnished.

But, admitting it to be entirely written, dated and signed by James H. Shepherd, it is not shown to have contained testamentary dispositions of the testator’s property, in the sense of the law defining testaments, and should not, consequently, be admitted to probate and •execution as his will, and, as a matter of course, it can have no effect whatever for any purpose unless probated and ordered to be executed. C. C. 1037; 6 An. 105.

All that Rezin has written and said about it must be taken together .as evidence, and from it we conclude that the “ sealed letter ” was not testamentary, or a part of the will of James, but simply a confidential letter to his legatee, containing suggestions and requests, a compliance with which rested in the conscience of the legatee. It is notable that in each of his letters bearing directly on this point, introduced iu evidence by the plaintiffs, Rezin emphatically stated that the giving or disposal contemplated was left to his own discretion; and where he uses the words “legacies,” “bequests,” etc., the context and his conduct show that they were gifts which he himself was to make as owner by universal title under the will, and not legacies left by James. He also states that, in a letter of subsequent date to the one in question, James made some changes in the suggestions contained in the former. All that any of the witnesses have said is derived originally from Rezin, whose statements must control. A testament disposes of the property ot the testator, and not of the legatee.

It is evident, also, that James did not consider this document as his will, or any part of it. He very clearly indicated, by the indorsements on the envelops and other respective papers, which was his will and which was not. He distinctly named and marked one a “will,” and the other “a communication to R. D. Shepherd” — not a codicil to his will, not directions as to carrying out his own dispositions of his estate, but a communication, a letter, sealed and addressed to R. D. Shepherd, or, in case of his death, Abraham Shepherd.” In the will, no reference' is made to the letter, and the record does not show it to be anything more than what he intended it — a private letter, lacking the legal requisites of a will, and conferring on third parties no rights that can be enforced by action at law.

It is clear, also, from their conduct, that the family did not consider it a will in their favor, but, at most, a direction or request to Rezin to make Ms will in their favor, and they do not agree as to the manner in which, or the persons in whose favor, it was to bo made. Henry Shepherd, the brother, says that after the letters to himself and Lee were received, his mother and brother Abraham always acted and spoke in perfect harmony with the hypothesis that the testamentary-disposition made by James II. Shepherd of his estate to R. D. Shepherd was final and conclusive, and no question was ever made, to his knowledge, .as to the correctness of the information imparted by Rezin in said letters. One of the brothers, the brother-in-law, and one or two of the friends of the family who have testified, were lawyers, and if the sealed letter was thought to have conferred any legal rights, they certainly could and would have been asserted.

It must be borne in mind that no one is claiming a special legacy or damages for withholding what was devised to one or more. To such a claim the plea’of prescription would be successfully opposed. The suit is to establish a certain document of a concurrent date, as a part of the will of James H. Shepherd, which, as described, would, if effectual, make a totally different disposal from, and really revoke, the part acknowledged, probated and executed as a will. This demand, in our opinion, is not sustained by legal proofs. To probate it would be the making, by the court, of a new and different will for the testator from the mere declarations of the parties'for whose benefit the will is to be made, not as to what they know, but as to their recollection of what Rezin had told or written to them.

Judgment affirmed.

VVylt, J.,

commring. Large amounts appear to be involved, and great learning and ability have been displayed by the counsel engaged in this litigation; many difficult questions of law have been discussed in the written and oral arguments, especially the doctrine of substitutions, vulgar and -fidei commissary; but I do not regard these cases as difficult.

A man named Shepherd died in this city in 1837, leaving his olographic will and a sealed letter addressed to his universal legatee; they were both contained in the same package or envelop; the olographic will was duly proved, registered, ordered to be executed, and the universal legatee went regularly into possession of the ost to, the sealed letter was delivered to the universal legatee, to whom it was directed, and very soon thereafter the heirs at law of the testator were advised of the contents of the sealed letter bv the universal legatee.

The complaints of the heirs at law now are, that this sealed letter, of the contents of which they were advised at least a quarter of a century ago, was a testamentary paper, and was part of the will of the testator, and should have been probated with the olographic will in 1837.

The universal legatee is dead, and his heirs, in answer to the call for the sealed letter, say it was never in their possession, and they have no knowledge concerning it.

This sealed letter has never been probated, and the record does not contain sufficient proof to admit it to probate; it is not shown that this letter, left with his will, was designed by the testator to form a part thereof; it is not shown that the letter was wholly dated, written and signed by the testator; that it instituted an heir, or was intended as a testament. But it js contended that the sealed letter was suppressed by the universal legatee after he received it; that he was a spoliator, and all the presumptions are against him and his heirs. I fully recognize the force of the maxim, but think its application not justified by the facts disclosed in the record of these cases. A letter of such importance, of the contents of which the heirs at law have been advised by the universal legatee for a quarter of a century, and held by him openly for so long a period to their knowledge, without ever a call being made by them for it, or even an intimation that it was a testamentary paper, can not fairly be said to be a suppressed testament at this late day, because the heirs of the universal legatee are not able to produce it. The fact that he so often communicated its contents in his numerous letters to the heirs at law, and held it openly for so many years without any demand for it on their part, or any charge that it was a testamentary paper, convinces me that there was no suppression of a testament in contemplation of law or otherwise.

It is useless to discuss the contents of the sealed letter, whether it was a testamentary paper, involving a ficlei commissary; substitution or not, because it has not been proved and ordered to bo executed. Article 1637, C. C., provides that a testament is without effect until it is proved and the execution of ifc is ordered. This principle was recognized in the case of Stewart’s Curator v. Row, 10 La. 530; also in Marcus v. Barcas, 5 An. 265, in which it was held that until a will has. been proved, “it can produce no legal effect, and is not admissible in evidence.” In the case of the Heirs of Landry v. Heirs of Duarin, 5 An. 612, it was held that: “ A testament is without effect until it has been duly proved and the execution ordered by competent authority.” The same doctrine is affirmed in Aubert v. Aubert et al., 6 An. 104. Whether the sealed letter was a testamentary paper or not, it can have no effect, because it has not been proved, and the records do not contain sufficient evidence to entitle it to probate. The maxim, omnia prwsimmniur contra spoliatorem, has no application whatever to the cases before us, as disclosed by the records, there being no suppression of a testament, or a testamentary paper, in contemplation of law.

There being no proof to authorize the probate of any other will, or evidence of the suppression of a testamentary paper as charged, I think the olographic will, probated in 1837, should remain undisturbed, and the title to property, acquired thereunder, more than a quarter of a century ago, should not now be questioned.

I concur in the opinion of the court in these cases.

Taliaferro, J.,

dissenting. I dissent from the opinion of the-majority of the court for the reason that I believe the “sealed letter” constituted a part of the will of James H. Shepherd and that it was fraudulently concealed and destroyed. I am not satisfied from anything in the record of the case that the letter was merely a memorandum or statement of the wishes of the testator, the compliance with which was contingent upon the will of Rezin D. Shepherd. I conclude-from the entire evidence that, in relation to the plaintiff in these cases, the conduct of this man throughout his entire management of the succession of his brother, was disingenuous, evasive, tortuous. It is not clear to my mind he ever disclosed fully and truthfully the purposes expressed by the testator in that letter. He has, however, disclosed enough to satisfy me that that instrument should be taken and construed as part of the will of the testator. The disclosure which he has made shows that the instrument conferred rights upon the plaintiffs. He spoke of it as containing “legacies” and “bequests’’ ■made by his brother. Referring to it he said: “This directs that-mother shall renounce all claim to the estate, and that Ann shall have only $5000, Moses nothing, Eliza Lee $10,000; the residue to be divided amongst his nephews and nieces, double as much to the-boys as the girls.” He subsequently said in regard to Mrs. Hammond: “ I shall see that all her rights shall be taken care of according to the wording of the sealed letter. He thought his brother had rather cut her oft ” by leaving her only $5000. The residue to be divided,” etc. The terms and phraseology used clearly import that testamentary dispositions were made by this instrument. He kept the sealed letter strictly to himself and talked about what it contained. When he found that suspicion was aroused in regard to his dealings with those who were interested in the pro visions contained in the act, he announced that it should be placed with his own will to stand as a shield to protect him against obloquy and reproach. This pledge lie did not redeem. His will was preserved amid the wreck of preceding years, but not tlie sealed letter. Under this state of facts the terms and expressions used by him in speaking of its contents, when they import rights and benefits conferred upon others, are to be taken in their fullest and broadest sense; and with rigid scrutiny and tardy admission when they indicate advantages to himself. Presumptions are all against him and in favor of the parties claiming rights under the act which was always in possession of, and withheld by, himself.

It is said in behalf of the defendants that the plaintiffs have slept upon their rights; that they should long since have demanded the-production of the sealed letter, if they believed it to bo a will and to contain important provisions in their favor. By the version given of the sealed letter by R. D. Shepherd, the plaintiffs were to receive nothing, or at least were to wait until his demise for the greater part of what they were to receive; that the request of James II. Shepherd was, that the plaintiffs were to be provided for by Rezin If. Shepherd’s will. They waited for this will and got nothing by it. If the plaintiffs have slept upon their rights, their lethargy, it is clear to me, was produced by placebos administered by Rezin D. Shepherd He exercised a controlling influence over them, at times holding out encouraging hopes, and at other times assuming a tone of intimidation and a manner of expression calculated to dampen their expectations. He had their confidence, and they trusted to his faith and fair dealing.

The efforts made on the part of the defense to show that the estate of James II. Shepherd was insolvent, I do not regard as successful. There was, doubtless, a large indebtedness, but looking to the circumstances attending it and the means and appliances of the estate, that indebtedness was not so formidable as pretended. It is a significant fact that no record has been shown of the administration by R. D. Shepherd of that large estate; no books or papers presented to show its exact condition and liquidation. It is a matter of history that at the tim» of the death of James II. Shepherd, 1837, a ruinous revulsion in the financial affairs of this country occurred, the result of an inflated paper currency, which, through an unwise policy, was inaugurated upon the expiration of the last charter of the National Bank, in 1832. Yet, although in the commercial circles many failures occurred, and serious troubles affected the agricultural and manufacturing interests, so great were the recuperative energies of the nation that these difficulties were of short duration. When, by the kind feelings of his wealthy and philanthropic friend, Mr. Touro, money was promptly advanced in large amounts to discharge the pressing debts of James H. Shepherd, and enable the administrator to pass the crisis in safety, only ordinary business capacities wore required to retrieve the estate from its embarrassments. These facts were known to Mr. Touro or else he would hardly have been so liberal. He'knew he was lending money on good security, and doubtless he received every dollar of it back. That Rezin D. Shepherd did use energy and skill in marshaling the resources of the estate and directing them with judgment, and that he did advance freely móney of his own in aid of his brother’s ■estate, and that the estate owed him, there can be no doubt; but I am slow to believe that all his labors and sacrifices in that direction entitled him to gulp this immense property for his pains. lie said he was constituted universal legatee of his brother’s estate by way of security for a heavy debt his brother owed him. Without adverting to the novelty of this kind of security, it may be remarked that, if such were the case, it must be presumed in the absence of any account or exhibit of his management of the estate, that this heavy debt, as well as all other debts of the estate, was finally paid out of the resources, revenues and means of the estate. After a pretty careful examination of this part of the controversy, I am of the opinion that the counsel for the plaintiffs have rendered ineffectual the efforts on the other side of the question to show an insolvency of the estate, and, as alleged by R. D. Shepherd, to establish the great losses sustained from the failure of its debtors, and that much of the property of the estate would never be worth its appraised value. The large sugar estate called ■“Golden Grove,” yielded a net annual revenue of from $20,000 to $25,000; it was cultivated by R. D. Shepherd four years, and was afterward sold for $250,000. The executors collected $201,000, and turned over to R. D. Shepherd property appraised, at a time of extreme though temporary depression of value, at $537,124. At the timo R. D. Shepherd received the estate the debts against it amounted to $324,221

That a will may be written upon as many pieces of paper as a testator may choose, I think will not be denied. That the sealed letter was no will or part of a will because it was not probated, can not be maintained in face of the damaging fact that R. D. Shepherd, or his heirs having it in their own possession, have put it forever out ■of the power of the plaintiffs to present it for probate. The existence of the instrument is proved; its destruction or loss by the oF B. D. Shepherd or his heirs is clearly established; its detention by E. D. Shepherd is a badge of fraud; the foundation is established for proving' its contents; the character of its contents is sufficiently shown to constitute it a part of the will of James II. Shepherd, and it should so be taken in connection with the act with which it was found in the same envelop. As to whether the will be null on account of its containing a substitution or fidei eommissum, I think would be an ulterior question, and I decline to consider it. I think judgment should be rendered in favor of plaintiffs.

Behearing refused.


text:
    No. 2312.
    C. M. Shepherd et als. v. Ellen Brooks et als.
    A fidei eommissum is prohibited, even, in favor of parties capable of receiving. The interposition of parties in a testament without interest is a fidei eommissum within the prohibition, and sucli interposition, being made in fraud of the law, may be proved dehors the will. But the proof must show not only the intention of the testator to create a trust, but it must show, also, that the interposed person was aware of, or ihathe has discovered such intention, and that he has executed, or intends to execute, the trust, notwithstanding his discovery of the intention of the testator.
    APPEAL from Second District Court, parish of Orleans.

      Thomas, J. O. II. Oonrail <& Son, for plaintiffs and appellants.

      0. Boselius <£ Alfred Philips and Bandall Hunt, for defendants and appellees.
   Howell, J.

This is an action by other collateral relations of James II. Shepherd, deceased, against the heirs of Bezin D. Shepherd, deceased, and differs from the one just decided in demanding’ that the will of J. H. Shepherd be declared null, in whole — first, because it contains a substitution in favor of Abraham Shepherd, who was to take under it in case Bezin did not; or, secondly, because, taken in connection with a letter addressed to Bezin, of concurrent date, written, dated and signed by James, and fraudulently suppressed by Bezin, the two constituting the real will, it creates a substitution or a fidei eommissum in favor of certain of the testator’s nephews and nieces; or null so far as it attempts to deprive the testator’s mother of her legitime and disinherit her without cause.

The same defense was set up in both cases. Both were tried, argued and decided together, on the same evidence, in the court below, and so argued and submitted in this court.

First — As to the first ground of nullity, we think article 1508, C. C., applies. It declares that “the disposition by which a third person is called to take the gift, the inheritance or the legacy, in case the donee, the heir or the legatee does not take, shall not be considered a substitution, and shall be valid.”

Second — We have already concluded, in the former case, that the “ sealed letter ” was not concealed, suppressed or destroyed by Rezin D. Shepherd, and is nob satisfactorily shown to have been written, dated and signed by the testator, and, if it were so shown, it is not a part of his will; and consequently it does not, as such, annul the probated will for containing a substitution or fidei eommissum in favor of the nephews and nieces, as charged in the petition in this suit

But plaintiffs’ counsel, in their ai’gument, abandon the charge of a substitution, and contend that if the will of Jamos H. Shepherd consists solely of the probated paper, the disposition in favor of Rezin D. Shepherd should be set aside as illegal, because the proof is, that it. was in trust for the nephews and nieces, which proof may be made by extrinsic evidence of every description.

In their last brief, they say: “Most of the argument, oral and written, of the counsel for defendants, has been devoted to showing-that the bequest (taken in connection, of course, with the disposition in favor of the nephews and nieces) does not involve a substitution. In this we agree with them. * * * But as the evidence developed itself, and it became apparent that R. D. Shepherd, according to his own statements, was only nominally heir, with certain limited rights and privilges, but stopping far short of ownership; and that the real beneficiaries were the nephews and nieces of the testator, all doubt as to which of these two tenures, both equally illegal, the disposition belonged, was at an end. Accordingly, the word substitution’ does not once occur in our original brief.”

IVe may concede that the authorities cited by them establish the proposition that fidei commissa, even in favor of parties capable of receiving, are prohibited; that the interposition of parties without interest is a fidei eommissim within the prohibition, and that such interposition, being in fraud 'of the law, may be proven dehors the will.. But the proof must show not only the intention on the part of the testator to create a trust, but also that the interposed person, trustee, instituted heir or legatee was aware of, or discovered, such intention, and has either executed or intends to execute it. Ooin Delisle, pp. 58, 59, sections 55. 56; 12 La. 19; 3 R.-441; 2 An. 718; 6 An. 133; 15 An, 157, 600.

M. Coin Delisle, cited above, after stating the question to oe an important one, whether in the case of a regular will a secret or verbal trust or prohibited substitution can be proved, and saying that M. Rolland de Yillargues and M. Dalloz maintained the negative and M. Merlin the affirmative, and adopting Merlin’s views as the more sound, adds:

“ Mais, outre que la preuve, en pareille matihre, doit étre admise avec précaution, il faut aussi qu’il resulte bien formellement des faite .que le légataire ait consentí a étre l’intermécliaire clu testatenx pour l’cxecution d’nne substitution proMbóé. S’il n’avait été cbargó que d’une fiducie ou d’un fidóicommis indópendant de son décés, la preuve ne ponrrait étre admiso. (M. Merlin, lieu citó, Observ. sur l’arrét du 22 déccmbre 1814; Y. aussi ci-dessus No. 22.) On ne pourrait méme étre admis k prouver que le donateur avait, en faisant sa libéralitó, 1’opinion que le légataire la rendrait au tiers, parce que ‘ l’opinion que pent avoir un donateur de l’emploi probable des objets donnós ne pent j unáis étre considóróe comme une condition, méme tacite, apposóe ala donation, ni constituer un fidéicommis.’ (Caen, 31 janvier 1827.)”

We may here remark that in Duplessis v. Kennedy, 6 La. 247, and Beaulieu v. Ternoir, 5 An. 480, it was said: “ The entire disposition is null in case of substitution only.”

Now, the opinion we have formed from the facts and proofs of this case, does not bring it within the doctrine advanced by plaintiffs. We do not consider it proven that Rezin D. Shepherd was constituted, or believed himself, a trustee to transmit the estate of Ms brother James to his nephews and nieces. He always claimed to be the actual legatee of all the property, in full, indefeasible right of ownership, and from the first of his possession asserted all the rights of sole, undisputed owner, paying and liquidating debts, executing and canceling mortgages, offering for sale and selling the property, and generally and publicly doing all acts pertaining to ownership, frequently mentioning these things and his intentions concerning them in his correspondence with the members of the family; but admitting that his brother had requested him, in a confidential letter, to do certain things and make certain gifts and dispositions as of his own property, stating at the same time, in which he is sustained by the record, that his brother’s estate was greatly involved, and but for the munificent aid of Judah Touro and his own means and credit, the property would not have paid the debts. In support and direct recognition of Ms ownership, Moses, his brother, and the father of four of the claimants in these suits, jointly with three other parties, in July, 1842, bought from Mm the Golden Grove plantation and the slaves inherited by him from James, for $250,000, taking his title. It is true he, at times, used words such as “legacy,” “bequest,” etc., which ordinarily imply testamentary disposition, and wrote about carrying out the wishes of Ms brother James, as contained in the sealed letter; but, as said by us in the case of Lucas v. Brooks, just decided, all that lie has said, written ' and done in relation to this subject, must be taken and construed together, and, when so taken, there is little difficulty in determining what he meant, and it is evident the family understood it as he did, which accounts for their course of conduct up to the day of his death. After this event. Lee says he advised Ms children to take no steps until they had time to see whether or not Rezin’s representatives had instructions to do what he understood Rezin was to have done in his will. It is true, also, that Abraham Shepherd seems to have construed the probated will and the sealed letter as constituting a trust in favor of his own and Henry’s children, when he wrote to Loo, in 1838, hut it was only his ojimion, which must he taken simply as an opinion.

Our conclusion is, that Rezin was the real legatee of his brother James under the will probated in 1837, and wo think it unnecessary to go into an examination of the interesting and prolific subject of prohibited substitutions and fidei oommissa, the distinctions'between them, the effect of either upon the whole or a part of a will, and the many authorities upon each side of these questions'.

The position that the w$i is null in so far as it attempts to deprive the mother of her legitime and disinherit her without cause, is not sustained in law. Article 1489, C. C., says: “Any disposition.of property, whether inter vivos or mortis causa, exceeding the quantum of which a qierson may legally dispose, to the prejudice of the forced heirs, is not null, hut only ‘reducible to that quantum.” Plaintiffs’ counsel admit that this ie not an action of reduction, to which the plea of prescription would apply.

The judge a quo did not err in his conclusion.

Judgment affirmed.

Rehearing refused.


author: Tamakgrro, J.

text:
    No. 2728.
    S. B. Graves and husband v. S. E. Hunter, assignee of Burbridge & Co.
    Eor the purpose of determining whether a mortgage exists against the judgment debtor, resulting from the recording of a judgment, the judgment itself, as placed upon the record, can alone bo consulted. The judgment creditor can not be permitted to introduce or consult the petition or pleadings in the case for tho purpose of explaining or showing that tho judgment is joint or m solido. Therefore, if tho judgment, as recorded, shows that it is a joint judgment, and that more than one-half thereof has been paid by one of the joint judgment debtors, no judicial mortgage exists in favor of the judgment creditors, resulting from the recording of'such judgment, against the property of the joint judgment debtor who has thus paid. His part of the obligation being extinguished by paymont, the judicial mortgage resting on his property falls with it.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana.

      Posey, J. L. M. Pijyhins, for plaintiffs and appellees.

      MeVea ds Hunter, Hernán & Lyons and Mace, Foster FI. T. Merrielc, for defendants and appellants.
   Tamakgrro, J.

This case presents a contest for priority of mortgage. Burbridge & Co. obtained a judgment in the Fourth District Court of New Orleans on the twenty-fourth of March, 1858, agaiust Thomas Bisland and Micajah Harris for $21,961 43, with eight per cent, interest from nineteenth of March, 1858. This judgment was recorded in the parish of East Feliciana on the third of April, 1858. S. B. Graves obtained a judgment in solido against F. Hardesty and Micajah Harris on the eleventh of February, 1867, ior $4558 50, with interest from thirteenth of October, 1863. This judgment was recorded in the parish of East Feliciana on the twenty-sixth February, 1807.

The judgment of Bnrbridge & Co. decrees that plaintiffs “recover of said defendants, Thomas A. Bisland and Micajah Harris, the sum of twenty-one thousand nine hundred and sixty-one dollars and forty-three cents,” etc. This judgment had upon it at the time it was recorded in East Feliciana two credits, one for $10,075, and the other for $5000; both payments having been made by Micajah Harris, one of the defendants. Property of this defendant having been seized under fieri facias, issued on the judgment of Burbridge & Co., S. B. Graves came in by third opposition, claiming to have her judgment paid first out of the proceeds of the property to be sold, averring that the seizing party has no judicial mortgage against the property of Micajah Harris, as the judgment recorded by Burbridge & Co. shows that it is against judgment, and that Harris has paid his part of it. In the court below the opponent had judgment in her favor, according to her a priority of mortgage and decreeing' a distribution of the property in conformity with the judgment. The seizing creditor and defendant in opposition has appealed.

A bill of exception was taken, on the part of the opponent, to the admission in evidence of the record of the suit in which Burbridge & Co. obtained in the Fourth District Court the judgment, a copy of which they caused to be recorded in the parish of East Feliciana to operate a judicial mortgage against the property of their debtors. The admissibility of this evidence involves the main question in this case. The object of introducing it was to show from the pleadings, from the entire record taken together, that the judgment rendered is a judgment in solido, and therefore that the recording of it preserves against the property of the seized debtor, Harris, a judicial mortgage for the unpaid balance of the judgment. The defendant insists that, the judgment per se and the credits indorsed upon it show it to be a judgment in solido; that such is the import of its terms, and that the payments made by Harris, exceeding one-half its amount, show that he was bound for more than one-lialf of its amount. The opponent 'contends that the judgment recorded to operate as a judicial mortgage must speak for itself; that extraneous evidence, as against third parties, can not be resorted to to give the act any other meaning than that in which it presents itself upon the records of the parish of East Feliciana.

We think the exception should have been sustained. The object of recording- is notice to .the world of the subject matter contained in the instrument recorded. Third persons, it has been frequently determined by this court, are not required to look beyond the registry. Although judgments are interpreted by the pleadings and nature of the obligation sued on; yet we apprehend that, when they are placed upon the public records to serve the purpose of judicial mortgages, they are to be interpreted only as they stand recorded in the mortgage book, as provided by law. If third parties were required to go to the courts whore judgments were rendered and inspect the pleadings and nature of each case in order to determine the true character and extent of the judgment recorded to operate as a judicial mortgage, a deplorable state of things would exist, and such as surely was never intended. And the rights of individuals would be'rendered insecure and precarious in the extreme if recorded instruments, having- a meaning accepted and understood by the world, should at a subsequent period by resort, had to other instruments, be given an entirely different moaning. Mortgages can not be extended by implication. They are construed strictly. In the construction of instruments which are placed upon the records of the country and to be obligatory upon third parties as to what they express and are intended to make known, their language should be clear, explicit, unambiguous, and their purport free from doubt. Nothing is left to inference or deduction. In the case before us the recorded instrument informs the world that at a certain time a judgment for a certain sum of money was rendered against Thomas Bisland and Micajah Harris. Presumption is not resorted to to determine whether the judgment is joint of in solido. .The language used certainly does not denote that it was rendered in solido. “ Solidarity-in obligations is not presumed. It must be expressly stipulated.” ■C. C., art. 2088. Tire next article declares that this rule ceases to prevail only in cases whore an obligation in solido takes place of right by virtue of some provision of law.” What provision of law is apparent on the face of those recorded instruments, that constitutes the judgment a solidary judgment 9 Looked to as recorded, it must therefore be taken as a judgment rendered jointly against the parties. The amount paid by Harris exceeds one-half the amount of the judgment and shows that at the time tho judgment was recorded in East Feliciana Harris had paid his half of it. There is no room to infer that the judgment was in solido, because the sum paid by Harris exceeds one-half its amount. It is not certain that he was bound for tho whole, because he paid more than one-lialf of the whole. But as the greater includes the less, it is certain that he paid half of it. Whatever was intended by those who recorded the judgment and the receipts and releases that were made upon it, these acts do not inform the public that there subsists a judicial mortgage against the property of Harris. Upon their face they show tho contrary. Yiewing the subject in this light, we think the judgment rendered by the court a qua correct.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed with costs. 5 N. S. 112; 7 An. 533,


text:
    No. 2608.
    M. C. Hall v. B. R. Hall.
    After tlio tax collector lias made out and returned into tlie proper office tlie delinquent list, in compliance witfi law, the title to lands included in such list becomes vested in the State, subject to the right of the parties interested to redeem it as provided by law. After the delinquent list has been thus returned, the authority of the tax collector coases, and he can not thereafter be made a party, nor is he competent to represent the State in a suit or proceeding by the vendor against the purchaser to compel a settlement of the taxes due on lands.
    APPEAL from Fifth District Court, parish of Iberville.

      Posey, J. Barrow & Pope, for plaintiff and appellant.

      A. & B¡. B. Talbot, for defendant and appellee.
   Howell, J.

This is an application on the part of the plaintiff and defendant (the latter acting lor his minor children) for a rule on D. R. Carroll, the purchaser of certain real property sold in this suit and C. Lozano, the State and parish tax collector, to show cause why said Carroll should not pay over the balance of the price, returned by him for the purpose of paying the taxes of 1862, 1863, 1864, 1866, 1867 and’ 1868, claimed to be due, and the said property pass to the purchaser ■“free of all claim or lien of the State of Louisiana or parish of Iberville for any of the taxes aforesaid.”

Carroll answers that he holds the said sum to pay such taxes as may be legally due on the property, and whenever it is ascertained contradictorily with the collector what taxes are due, he is ready to pay as may be required.

Lozano excepts:

Pirst — That the attempt of plaintiff to proceed by rule or otherwise, In this case, is prohibited by law.

Second — -That the lands referred to by plaintiff, and on which a tax was assessed, have been embraced in the delinquent list of unpaid taxes, and filed in the office of the Recorder of the parish of Iberville, •as required by law;, and appearer has ceased to have any authority to collect said tax.

The exception alone was tried and sustained, dismissing the rule as to the tax collector, and plaintiffs appealed.

The first ground of the exception, which seems inconsistent with the .second, need not be considered, as the latter appears to be well talien, being argued on this point as to the collector’s right or authority to represent the State in this proceeding, no distinction being made between the parish and State taxes.

Under the seventy-fourth section of. the Revenue Act of 1869, No. 114, the collector made out and returned the delinquent list of unpaid taxes for the years 1867 and 1868, which embraces the property in question, and made oath as required, that he found no other property liable to seizure and sale for said taxes. This, by section seventy-six of said act, vested the title to said property in the State, subject to the right of the parties interested to redeem it, as provided in other sections of the same act, and such parties must apply for relief where the law has directed them. Prom the date of this mutation of the title, the authority of the tax collector ceases, and the question as to what taxes are to be paid or may be exacted in relation to, or on account of, that property, must be settled contradictorily with the officer or officers designated by the law for the purpose. The fact that the collector was commissioned to collect the back taxes, doe^ not show authority in him to collect or receive such taxes after the title to the property, alleged to be subject to them, has been vested in the State. He may represent the State in proceedings against individuals for taxes due on their property, but not on property vested in the State. He is not the officer designated by the law to represent the State in such cases. A judgment against the tax collector in this proceeding, as the law now stands, would not bind the State.

Judgment affirmed.