author: Bermudez, O. J.

text:
    No. 1366.
    The State ex rel. Hyman, Lichtenstein & Co. vs. E. T. Lewis, Judge of the Thirteenth District, Parish of St. Landry.
    Mandamus does not lie to grant an appeal from an order dissolving on bond a sequestration issued against one wlio, being solvent, has applied for a respite. Article 279 of the O. P., which allows to defendants in sequestration eases to bond, except in eases of failure, does not exclude such applicant from that right.^The word “failui-e” in that article means “judicially declared insolvency.” The execution of a dissolving order on bond, under such circumstances, can not cause irreparable injury. Should the plaintiffs sustain any damage by the execution of such order, they could have recourse against the sureties in the bond, who would bo responsible, were the property bonded not forthcoming when ordered to be produced. The injury, where the claim Is for money, could be compensated in dollars and cents.

      Estilette & Dupré and Henry L. Lazarus, for the Relators,
    cited: ■O. 0., Art. 8556; 86 An. 15; 10 Blatchford 260; 26 An. 66; 7 An. 572; 16 La. 174; 29 An. 297; 12 La. 137; 38 An. 49.

      Kenneth Baillio, for the Respondent,
    cited: C. P. 754, 755, 756; Cross on Pleadings, 447, 453; 38 An. 329; 40 An. 365; High, Legal Rem. 140, 141; 39 An. 341; C. O., Art. 3556.
   The opinion of the court was delivered by

Bermudez, O. J.

This is an application for a mandamus, coupled with a restraining order.

The relators complain that the District Judge has illegally declined to allow them a suspensive appeal from an order which he has made, whereby a sequestration, issued at their instance and executed against the defendant in the case, was dissolved on his furnishing bond for a stated amount; the debtor thereby resuming control of the property seized, and that said judge refused to entertain and pass upon a motion offered by them to rescind said dissolving order and to allow them an appeal from such refusal. They aver that the execution of the dissolving order, the refusal of the judge to determine the motion to rescind and to grant the appeal asked will cause them irreparable injury.

They pray for a mandamus, and meanwhile for a restraining order. Appropriate action was taken on this ex parte showing.

Subsequently, the process of this court having reached the judge after the dissolving order had been carried out, and the defendant left in possession, the relators complained that the judge refused to reinstate the sequestration and prayed for specific instructions to him to that end; but this demand was, for good reason, not granted.

The substantial facts which the averments, the return and the documents accompanying both disclose are the following:

Bloch, a merchant, alleging himself fully above all his liabilities, which for the time he acknowledged himself unable to meet, stated a balance of his assets and debts and applied for a respite. An order was made convoking a meeting of his creditors and staying proceedings against his person and property.

The relators, claiming to be his creditors for some §5000, and charging their apprehensions that he would, previous to the action of the creditors, take advantage of his possession of his assets to place them beyond their reach, or dispose of them to their injury, prayed for a sequestration, which was ordered to issue and which was executed.

Upon application, shortly after made by Bloch, the District Judge dissolved the sequestration on his furnishing bond and security for §33,000, possession,' however, to be delivered by the sheriff only-after an inventory and appraisement of the effects seized. The property having been inventoried and appraised at some $20,000 the required bond was furnished and the defendant continued in possession.

The plaintiffs then moved to rescind the dissolving order, but the judge declined to pass upon it, alleging want of authority to do so at chambers out of term time.

The plaintiffs then applied for an appeal from the dissolving order ■and from the refusal of the judge to pass upon the motion to rescind.

The District Judge returns to justify his condact, urging that none of his acts can cause the relators an irreparable injury.

The controlling question to be determined is whether the relators are entitled to a suspensive appeal from thp order dissolving the sequestration on bond.

They claim that the execution of this dissolving order will cause them irreparable injury, for the reason that, as the judge had no right to make the order, or did so in direct violation of law, the bond furnished by the defendant in the writ is an absolute nullity, not binding on the securities therein, and on which no recovery could be had against them in case the property released should not be produced when ordered to be so. ■%,

This proposition necessitates an inquiry into the correctness of the dissolving order.

The relators contend that the article of the Oode of Practice, by which a defendant is allowed to dissolve a sequestration executed on his property, forbids such dissolution in a case like the instant one. That Article 279 reads as follows: “A defendant against whom a mandate of sequestration has been obtained, except in cases of failure, may have the same set aside by executing his obligation in favor of the sheriff, with one good and solvent surety, for whatever amount the judge may determine as being equal to the value of the property to be left in his possession.”

The relators contend that, as Bloch was in failing circumstances, he could not claim the privilege of bonding, and that, by allowing it to him, the District Judge contravened the law.

In support of their proposition they refer to Art. 3556, par. 2, of the R. C, C., which defines the word failure as follows: “Failure signifies the situation of a debtor who finds himself in the impossibility of paying his debts.”

They further invoke what was said by this court in the case of Kennedy vs. Bank, 36 An. 15.

“ A merchant who ceases or suspends his payments is in a state-of failure. O. N. 457. Hence, when one is unable to pay all his debts, he is, in a legal sense, in failing or insolvent circumstances.”' R. O. O. 3556, Nos. 11 and 26.

In further support of the proposition they refer to Article, R. O. 0., 3084, which says that “a respite is an act by which a debtor,, who is unable to satisfy his debts at the moment, transacts with his creditors and obtains from them time or delay for the payment of the sums which he owes to them.”

They take pains to trace this article back to the Oode of 1808, Title XVI, treating of respite, Art. 1, p. 438, which defined a respite to be “ an act by which a debtor who has failed, or is in such failing circumstances as to render his failure unavoidable, or is in the impossibility to satisfy his debts at the time they are due, transacts with his creditors and obtains from them time or delay for the payment of the sums which he owes them, and even sometimes the ’•emission of part of said debts.”

They also refer to Article 2170 of the R. O. 0., which declares that “the surrender of property is the relinquishment which a debtor makes of all his property to his creditors when he finds himself unable to pay his debts.1 ’

They therefore contend that, as Bloch was unable to pay his debts, he was in failing circumstances, and that the privilege of dissolving the sequestration being denied him by Article 279 of the O. P., the judge transgressed the law, and the bond furnished is a nullity, on which no recovery could be had against the sureties should the property not be forthcoming when ordered to be produced.

Those conclusions are unwarranted, either by law or by jurisprudence.

In the Kennedy case, 36 An. 15, the court had occasion to refer to-the definition of the word failure found at the end of the code. Art. 3556, No. 11.

It said: “ The word failure used in the code signifies the situation of the debtor who finds himself in the impossibility of paying his debts. Solvency is the ability to pay one’s debts. He who can not pay all of his debts is not solvent.” R. C. C. 3556, Nos. 11, 26.

The definition of respite, in the Oode of 1808, was modified by the-compilers of the Oode of 1825, by eliminating from it any language or word suggestive of a failure in the sense of insolvency, and by-shaping it so as to mean only a relative temporary inability on the part of the debtor to meet all his engagements at the moment.

Hence it is that one who applies for a respite is deemed solvent; while one who makes a cession, or surrender of his property to his. creditors, because of the absolute impossibility in which he finds himself of paying at all his debts, is considered insolvent.

Surely, in both cases of respite and of cession or surrender, the debtor is a bankrupt; but with this difference, however, that in the-first case he is solvent, while in the second he is insolvent.

The solvency of the applicant for a respite — that is his ability to-pay his debts — is presumed, while the insolvency of the applicant, for a cession or surrender is assumed as a certainty.

In the case of Seixas vs. Citizens Bank, 88 An. 425, this court has had occasion to inquire into the meaning of the word failure as defined in the codes, in the statutes and in the jurisprudence, and in the course of an elaborate opinion has declared it to be (pp. 440, 444) “ a judicial failure, or judicially declared insolvency,” and “ insolvency judicially recognized and declared.”

It therefore follows that the word failure, found in Article 279, O. P., means a judicially declared insolvency, and that it is only where a defendant in a sequestration suit has been judicially declared to be insolvent that the privilege of dissolving the sequestration on bond is not allowed him.

A different interpretation would defeat the beneficial effects which the law accords to the unfortunate, but honest, solvent debtors who seek the indulgence of their creditors for delay.

Indeed, how could such debtors obtain relief, were greedy and unmerciful creditors to sequester their property, and were they denied the privilege of releasing it from seizure by furnishing a good and valid bond, with satisfactory security, to warrant its production whenever required?

Evidently they could not rehabilitate their credit and honor their engagements unless they had possession of their property.

It is no argument against the soundness of the interpretation thus given of the word failure in the article of the Oode of Practice to say that it can not mean a judicially declared insolvency, because a ■sequestration does not issue against an insolvent bankrupt, as by the cession he relinquishes his assets to his creditors, and has no interest in releasing them from seizure. *

Possibly the proposition in the abstract may be correct; but it must be considered that a sequestration may have issued against one ■ before his cession, and that it is in such eases that the debtor is not allowed, after the cession, to come forward and fraudulently to dissolve the sequestration; for this right could only be exercised by the representatives of the insolvent and of his creditors.

We are, therefore, led to the conclusion that, as Bloch was not excluded by the provisions of the article of the Code of Practice, '279, he had the right to bond the sequestered assets; that the judge did not err in permitting him to do so, and 'that the bond furnished is therefore unquestionably a valid bond, on which recovery can be had, should the bondedp roperty not be produced when required to be‘so.

We must not be understood, however, as saying that, even if the bonding had been unauthorized, the sureties on the bond, who have -assisted their principal in obtaining possession of property, would not be liable on the bond, should the property not be delivered when required so to be.

We, therefore, conclude that, as the execution of the bond furnished to dissolve the sequestration can not cause the relators an irreparable injury, as any damage which they might sustain could be compensated with dollars and cents, the District Judge was right in refusing to grant the suspensive appeal sought.

This view of the case dispenses us from passing upon the complaint in the petition, that the District Judge has illegally declined to allow an appeal firom his refusal to entertain and determine the motion to rescind, which was based on the grounds set forth to assail the right of Bloch to bond the sequestration, the more so, as, in their brief, the relators did not allude to this refusal, and by not insisting •on their right to an appeal from it, are deemed as having abandoned it.

It is, therefore, ordered that the preliminary restraining order herein made be rescinded and that the application for a mandamus ■be refused at cost of relators.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 1368.
    Frederick Wilbert et al. vs. Justinien Michel.
    1. When property has been assessed to two different persons for the same year a payment of the taxes by either will defeat the power of the Tax Collector to sell. It matters not that the party malting the payment is not the true owner.
    2. The validity of a title acquired from the State depends upon the validity of the adjudication, or forfeiture to the ¡átate; and if that is, for any cause, invalid,. the State acquires no title and can transfer none.
    PPEAL from the Twenty-first District Court, Parish of St. Martin.. Mouton, J.

      B. N. Sims for Plaintiffs and Appellants:
    1. The adjudication to the State in 1886 for the taxes of 1885 was anullity. Plaintiffs had paid-all the taxes for that year, prior to the adjudication, on the lands, owned by, and assessed to, them. Desty on Taxation, 812, 815; Bennett vs. Hunter, 9 AVall. 326; Atwood vs. Weems, 99 U. S.; (Justus Lee vs. Kaufman et ais., 106-U. S.
    2. The validity of the title acquired from the State depends on the validity of the adjudication or forfeiture. If that was not valid tb e State acquired no title and can transfer none. Saunders on Taxation, p. 318; 32 An. 929 ; 36 An. 350.
    3. The lands in controversy were regularly assessed to plaintiffs in 1884, 1885, 1886,. 1887 and 1888, and they promptly paid all the taxes levied thereon each year. Therefore, the pretended adjudication to the State in 1886, based on a pretended assessment of the same lands in 1885, confusedly with lands of another, in file-name of Breaux and Duperier, was an absolute nullity; and the pretended adjudication to defendant on the 3d of June, 1889, based on the said adjudication to the State in 1886, is likewise null and void.

      Edward Simon for Defendant and Appellee.
   The opinion of the court was delivered by

Watkins, J.

This is a suit to revoke a tax sale under, the following state of facts, viz: That on the 11th of January, 1877, the plaintiffs’ father acquired the lands included in the calls of the tax title, under an order of sale made in a partition suit, entitled Eugenie Breaux vs. Lanos & McOall, and they were subsequently donated by him to his children, and the plaintiffs acquired, by purchase, the interests of the other donees. That since said partition sale and donation, the plaintiffs and their authors have been in the peaceable and quiet possession of said property, and same has been since regularly assessed in their names for State and parish taxes, up to and. including the year 1888, inAvhich year said alleged sale to the defendant Avas made. That for each and every one of those years the plaintiffs and their authors regularly paid said taxes and hold their receipts for said payments, and especially for the year 1885. That the defend ant claims to have purchased said property, under and by virtue of Act 80 of 1888, on the 3d of June 1889, and thereunder to have acquired title from the State, she having previously acquired title by means of an alleged forfeiture in the year 1886 of the property, for the non-payment of the taxes of 1885, for which they Avere delinquent. That the forfeiture proceedings in 1886 Avere taken against Breaux and Duperier, on an assessment of said property in 1885; and the basis of that assessment was a tax title executed to them in November, 1872, under the revenue law of 1871. That while the tax title of Breaux and Duperier was duly recorded in the proper book of conveyances in May, 1873, they had at no time other possession than such as is imported by an authentic act of sale. None of the acts of sale or donations, evidencing the plaintiffs’ title, were ever recorded in the parish of St. Martin, where the property is situated, until since the adjudication to defendant.

The title to the State, as well as those to defendant, were all recorded, and seasonably.

The question thus presented is whether the recorded title of the •defendant, traced back to Eugene Garandi in 1872, through the assessments and sales described, is a good and valid one, and paramount to the plaintiffs’ unrecorded title. No complaint is made by the plaintiffs of the regularity or legality of any of the assessment or sale proceedings under which defendant and his authors in title acquired the property, except that they (plaintiffs) had been regularly assessed as the owners of the property for the years 1878 to 1888 inclusive, and had paid all the taxes thus assessed, and that an assessment of same to Breaux and Duperier for the year 1885 was illegal, and the forfeiture of said lands to the State in 1886 for the non-payment of those taxes when no taxes are due on said land for the year 1885 was also illegal, and likewise her title to the defendant.

The only question the defendant has raised as to the title of the plaintiffs is the lack of proper and timely registry thereof in the conveyance office of the parish of St. Martin; and he defends the assessment of the property in the names of Breaux and Duperier in 1885 on the sole ground that it was the duty of the Tax Collector, under the law, to examine the conveyance records of the parish for property and assess it accordingly, and that as an examination thus made would have disclosed no other recorded title than theirs, hence the assessment made was valid and legal.

His further insistence is, that an assessment made in 1871, in the name of Garandi, unassailed, is a sufficient support for a tax title to Breaux and Duperier in 1872, and for the 1885 assessment.

This suit can not be treated as an ordinary petitory action, instituted for the purpose of testing the strength of an adversary title to the property in controversy. On the contrary, ■ plaintiffs allege ownership and possession, and that all of the proceedings leading up to the sale to the defendant, as well as his title from the State, are null and void, and have only the effect of casting a cloud upon their title; and their prayer is that the forfeiture of the property to the State in 1886, and the sale to the defendant in 1889, be decreed null and of no effect, and that they be quieted in their possession.

The principal ground on which plaintiffs rest their case is, that in 1885, before and since, they had been assessed on this identical property for State and parish taxes, and regularly and punctually paid same, and that, therefore, there were wo taxes due the State for the year 1885 on that pi'operty, and consequently the forfeiture proceedings were null, and conveyed no title to the State. This is the sole question with which we are to deal, for the only interest the State had was to collect the revenue actually and really due her at the time. She certainly had no interest to subserve in championing the title of Garandi or his successors. Hers was an adversary right. No judgment we could .render in this case would have the effect of disturbing the title of Garandi, or of Breaux and Duperier, whatever it may be. Its only effect would be, if plaintiffs’ pretensions are sustained, to remove a cloud from the title of the plaintiffs, and leave it in statu quo.

The evidence in the record leaves no doubt in our minds that the plaintiffs were assessed in the year 1885 as the owners of this property, and paid the taxes at their maturity on the demand of the Tax Collector, and hence there were no taxes due the State on the assessment of Breaux and Duperier in that year. The proof shows that plaintiffs, and the authors of their title, paid taxes on this property, and that in 1885 and since there were no taxes due the State on this property. This proof fully satisfies the requirements of Sec. 6 of Act 80 of 1888, which are, that “ in order to invalidate a sale to the purchaser, it shall be necessary for the party attacking it to prove that all the taxes for all the years for which the property was adjudicated to the State had been paid, before the adjudication to the State.” When such proof has been administered the prima, facies of the purchaser’s title are destroyed. The law contemplates the assessment, of property but once in each year.

It is a settled principle in matters of taxation that when property has been assessed to two different persons, for the same year, a payment by either will defeat the power of the Tax Collector to sell; and it matters not that the party making the payment is not the true owner.

In Bennett vs. Hunter, 9 Wall. 326, a tax sale was held void because it was made after the owner had tendered payment; and Mr. Desty,, in commenting on that case, said: “Under the principle of this decision, if the same property is assessed to two different persons, payment by either, whether he was the true owner or not, would suffice to defeat the Tax Collector’s power to sell.” Desty on Taxation, pp. 812 to 815.

We find that, in Mr. Saunders’ treatise on the law of taxation in this State, it is announced that the summary of our jurisprudence is-that:

“ The validity of the title acquired from the State depends on the validity of the adjudication or forfeiture. If that was not valid, the State acquired no title, and can transfer none.” Saunders on Taxation, p. 313.

Evidently the State could convey no better title to the defendant than the one she acquired. 32 An. 926; 36 An. 350. To the same effect are the cases of Atwood vs. Weems, 99 U. S. 183, and Lee vs. Kaufman, 106 U. S. 196.

The plaintiffs’ case, we think, was clearly made out, and they should have had judgment in their favor in the lower court.

It is therefore ordered, adjudged and decreed that the judgment, appealed from be annulled and set aside; and it is further ordered and decreed that the adjudication to the State in 1886, and that to-the defendant in 1889, be annulled and set aside as illegal and void,, and as operating as a cloud on plaintiffs’ title, and that they be maintained in possession and quieted in title, and that the defendant and appellee be taxed with all costs.

Mr. Justice Breaux recuses himself.


text:
    No. 1376.
    Thiburce Norres et al. vs. David Hayes, Administrator, et als.
    1. This court has frequently held that the current of prescription on a judgment for money may be interrupted or suspended in other modes and by other means than by the peculiar statutory action provided by the Code.
    2. In case the plea of prescription of ten years is urged against a judgment, and ‘ the trial of the plea is had in the court a qua on the face of the record, the judgment sustaining the plea may, for the purposes of justice, be annulled and the cause remanded.
    PPEAL from tlie Twenty-first District Court Parish of Iberia* Mouton, J.

      Walter J‘ Burke and T. J. Foster tor Plaintiffs, Intervenors and Appellants :
    Unconditional heirs may institute real action, in their own name, for the protection of the estate and of themselves. They are necessary parties. The administrator may or not be made a party. This is especially the case when the suit is to set aside a tax sale, of mortgaged property, of a debtor when it is admitted • not only that the administrator is negligent, but has fraudulently colluded with the tax purchaser and others to defeat the rights of the estate, and where also it is admitted, or proven, that the sureties on his bond are insolvent. G. P. 4, 41, 42, 61, 62, 68,123, 15; Gross on Pleadings, pp. 44, 43, Sec. 42; 2 An. 782; 27 An. 649; 14 An. 156, 777; 7 An. 136; 6 L. 97; 24 An. 278 : 30 An. 1099; 31 An. 134; 33 An. 1010; 38 An. 238.
    It being the duty of an administrator to prevent prescription from running, he is estopped from pleading proscription on his own debt. I-Ie can not sue himself. He is forbidden to occupy the dual position of plaintiff and defendant in same suit, and a judgment so obtained is null. Marcade on Prescription, p. 164, II; p. 298, section 2; UVII; 8 R. 488; 32 An. 1037; 11 R. 183; 12 R. 155; 23 An. 683; 36 An. 408; 37 An. 741, 6.
    As to suspension of prescription, it matters not what may be the form of the debt. Interruption may take place even when the debt is in form of a judgment, as in all other cases. 30 An. 1071; 33 An. 297; 34 An. 413; 37 An. 769; 36 An. 408.
    The obligation of the sureties is to protect the estate against the administrator’s negligence. For the reasons applicable to administrators, they can not avail themselves of his negligence and are estopped from pleading prescription.
    As to the co-debtors of the administrator, inasmuch as the administrator can not sue himself, he can not sue them. See authorities above, especially the 36 An. 408.
    Registry of a judgment gives a judicial mortgage. But as to the vendor’s lien and special mortgage its inscription has no effect as to third parties. The debt merges into the judgment; not so the lien and conventional mortgage, which continues to exist independent of it. If the act of sale and mortgage has been duly inscribed and subsequently reinseribed as it was originally, it matters not that the judicial mortgage perempts, their effect will be preserved, unless the debt be extinguished. 22 An. 402; G. O. 3369 ; 34 An. 313; 42 An., Lelanne vs Payne, decided 10th February, 1890.

      A tax purchaser, who has fraudulently colluded with the administrator to defeat the rights of the estate, can not, in support of the sale to him, plead the peremption of a mortgage.
    - L. O. Hacker for Defendant and Appellee:
    1. A judgment for money prescribes in ten years, unless revived within that period. O. O. 3547; 33 An. 366.
    2. Any person interested in a judgment may revive it in the manner provided by law. 23 An. 579, 594 and 5S7; C. O. 3547.
    3. The reinscription of a judgment does not operate as a revival, and it does not tend to interrupt tho course of preseription.
    4. Preseription may bo interrupted by other means besides that mentioned in Art. 3547, O. C., but this interruption of the prescription of a judgment must bo by one of the modes provided in the Civil Code.
    5. The reinscription of a mortgage, when tho principal obligation, which it is • designed to secure, is extinguished by any of the methods mentioned in the O. C., is a useless ceremony. The extinction of the principal obligation carries with it that of the accessory. O. O. Bill, 3284, 3285; 30 An. 366.
    6. A principal obligation is indispensable to the existence of the accessory, without which it becomes a lifeless form. C. C. 3285.
    7. Where one styling himself a judgment creditor institutes an action to annul a tax sale of an i2nmovable, he must be in a position to enforce his judgment; otherwise he has no interest in the subject matter of the suit. 14 An. 301.
    8. The right of vendor to rescind tho sale for non-payment of the purchase price prescribes in ten years from the maturity of the obligation. 34 A21. 989.
    9. When a vendor has brought suit and obtained judgment against the vendee, for the purchase price, he waives the right to the resolutory condition. Pothior pn Obligation, Volume 2, Polio 207.
   The opinion of the court was delivered by

Watkins, J.

This appeal is prosecuted by plaintiffs from an interlocutory judgment of the District Court sustaining defendants’ peremptory exception of no cause of action, and ten years’ prescription, and dismissing the suit, which has for object the revocation of a tax sale.

On the 23d of January, 1869, John Hayes executed a title to his three sons — David, William and Malachi — jointly to the land which is the subject matter of-this litigation for $15,000, on one, two, three, four and five years’ credit; and the several vendees executed ñve notes of $3000 each, bearing 8 per cent, per annum interest from date of sale, stipulating a special mortgage in the act and the retention of a vendor’s lien as securing the payment of the price, the act being duly recorded in the book of mortgages, and thereafter reinscribed.

In December following John Hayes, the vendor, died, and David Hayes, one of the vendees, qualified as administrator of his succession. When the last of the series of notes went to maturity, Hayes, administrator, sued them to judgment (it bearing date March 25, 1875), and it was also duly inscribed and reinscribed in the mortgage office, but never thereafter formally and by judgment was it recorded.

During the years 1886 and 1887 Malachi and William conveyed to A. L. Hayes their two-thirds interest, and David his one-third interest in the land to Hamilton Derouen, the defendant, the title thus vesting in A. L. Hayes and Hamilton Derouen jointly.

In 1887 the land was adjudicated to Derouen, who claims to be the sole owner.

Plaintiffs’ contention is that, as a portion of the heirs of the deceased vendor and mortgage creditor of other heirs, they are entitled, on making the administrator party, to institute suit in their own name for the revocation of the tax sale of the mortgaged property and for its restitution to the mass of the succession for purposes of administration.

Their averments against the vires of the tax sale in substance are, inter alia, that the administrator illegally and negligently permitted the property to be sold at tax sale to the defendant, who was his son-in-law, for the vile price of §180 of delinquent taxes, and to the detriment of the large mortgage claim due to the succession he was administering.

Further, that said administrator, subsequently to said sale, fraudulently colluded with said tax adjudicatee and endeavored to defeat the succession mortgage on the property for which he was personally bound by making, to his alleged confederate title to his one-third interest in the land.

It is to this action that the defendant’s exceptions are directed; and the insistence of their counsel is that plaintiffs’ petition does not disclose that they have “sufficient interest in the subject matter of this suit to give them a right of action or to authorize the court to grant the judgment they ask; and because whatever might have been their rights, they are barred by the prescription of ten years.”

For the purpose of fully stating defendant’s exceptions, we quote from his brief the subjoined explanatory statement, viz:

‘‘ The exception challenges the right of plaintiffs to interfere in or-to question the validity of the tax sale, on the ground that they have no legal interest, and have ceased to be creditors; that the mortgage which they have inscribed is extinguished by the prescription of the principal obligation, which it is designed to secure.”

It is well to note here that, pendente lite, a suit previously brought by the plaintiffs, for the amotion of David Hayes, administrator, was tried and judgment rendered against him, and a new administrator was appointed; and he intervened in the suit and joined the plaintiffs. Hence, whatever question there might have been of the right of a portion of the heirs of a deceased to bring such a suit as this, it was answered by the intervention of the new administrator. The residue of the question rests solely upon the effect to be given defendant’s plea of ten years' prescription against the judgment on the purchase notes, of date March 25, 1875. It was sustained by the ' judge a quo, and the suit dismissed, because, as the debt had apparently perished by prescription, the re-inscription of the mortgage was unavailing. Dawson vs. Thorp, 39 An. 366.

The trial was had and judgment rendered on the face of the records. No evidence dehors the records was offered. But we have frequently held that judgments may be preserved from the effects of prescription and the current of prescription interrupted in other modes and by other means than by “ the peculiar statutory action ” authorized by the Civil Code, 3547. Succession of Patrick, 30 An. 1071; Calhoun vs. Levy, 33 An. 1296; Levy vs. Calhoun, 34 An. 418; Lalanne vs. Payne, 42 An. 152.

In the instant case there arises no question as to the relative rank of mortgages. It is merely a suit brought by heirs of a conventional mortgagee for the purpose of restoring the mortgaged property to the succession. The mortgagors are heirs, and one of them was the administrator. The'claim well nigh aggregates $30,000. The demands of the plaintiffs strongly appeal to the court for the exercise of its equity powers. It may be that on a trial of the merits the plaintiffs will be able to show an interruption of prescription; and we think it but just that we should afford them an opportunity to do so.

For this purpose the judgment must be reversed and the cause remanded to the court a qua.

It is, therefore, ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered that the •cause be remanded for further proceedings, according to law, and that the defendant and appellees be taxed with the cost of appeal and those of the lower court and await final judgment.

Mr. Justice Breax recuses himself, being of counsel.


author: McEneky, J.

text:
    No. 1372 .
    The State of Louisiana vs. R. A. Black.
    When an accused is out on bail the judge has no authority, pending the triab t0 order his arrest and confinement in prison without some reasonable ground to believe that he will attempt to escape; but such arrest and confinement are no cause for setting aside a verdict of guilty against the accused. The request of a District Attorney to a witness to answer “yes” or “no” is no reason for excluding the witness’ answer. Where a party is on trial for manslaughter it is competent to prove threats made the day before the homicide by the accused against the deceased. It is not necessary, as a foundation to the introduction o£ the evidence, that it be proved that the threats were communicated to the accused. The law governing this proof applies to threats made by the deceased against the accused. In the course of the trial, where an objection was made to a question addressed to a State witness and the trial judge said: I will take down the question and the objection, for the Supreme Court to pass on, made in the presence of the jurors, and the judge cautions the jury not to consider in the discussion of the question anything said by him or counsel, the accused has no cause of complaint. Dying declarations, made under sense of impending dissolution, and which state facts and not opinions connected with the circumstances of the inflicting of the mortal wound, are admissible in evidence. It is not necessary that the deceased should explicitly state that he was at peace with the world and his God. This fact may be drawn from the facts stated in the declaration.
    APPEAL from tbe Fourteenth. District Court for the Parish of Calcasieu. Bead, J.

      J. O. Gibbs, District Attorney, J. N. Ogden and W. O. Perrault for the State, Appellee.

      Four-net & Pujo and W. F. -Schwing for Defendant and Appellant.
   The opinion of the court was delivered by

McEneky, J.

The accused was indicted for manslaughter, tried, convicted and sentenced to ten years at hard labor. He has appealed.

The defendant was out on bail. His sureties had not surrendered him. During the trial the judge ordered him in custody of the-sheriff and remanded him to prison. His reason for so doing was that several parties had escaped pending trial. The order of the judge was, it seems, in this case unnecessary. There was no reason to suppose that the accused would attempt to escape. Had there been some evidence before the judge to lead to the conclusion that the accused would attempt to escape, there can be no doubt of his authority to prevent the escape by ordering the accused into custody. In the absence of such evidence the accused is entitled to the benefit of bail until after conviction. Art. 9, Oon. of 1879.

But this action of the judge formed and constituted no part of the trial. It raised no more presumption of his guilt than if he had been in prison unable to give bond for his appearance.

B. A. Soller, a witness, was interrogated by the District Attorney to prove threats made by the accused against the deceased. The question was in the usual form and was not leading, as it did not suggest the answer. The instructions of the District Attorney to the witness to answer the question yes or no were not objectionable. On cross-examination the accused had the opportunity to examine him at length on the same subject. The threats intended to be proved were admissible, as they were made the day before the homicide, and would enable the jury to better understand the defence of excusable homicide made by the defendant. It was unnecessary, as a foundation for the introduction of this evidence, that it should be first proved that the threats had been communicated to the deceased..

The authorities relied on by the accused apply to threats made by the deceased.

In the course of the trial, upon objection being made to a question propounded to a witness for the prosecution, the trial judge said : “ I will take down the question and the objection and let it go to the Supreme Court.” A bill was reserved to the statement “forthe reason that said remark of the court had a tendency to prejudice the minds of the members of the jury against the accused, because it was only on conviction that the matter under dispute could be reviewed by the Supreme Court.”

Thereis no force in the objection. If any inference as to the guilt of the accused could have been drawn from it, it was destroyed by the instructions of the judge, made immediately to the jury, todisregard any remarks made by the court and counsel pending the discussion of this question.

Bills of exception five and six are to questions on direct and cross examinations, the answers to which would have been irrelevant and could have had no effect in determining the guilt or innocence of the accused.

Objection was made to the introduction in evidence of the dying declaration of the deceased, Reese W. Perkins, on the ground “that the declaration showed that the declarant still entertained feelings of unforgiveness against the accused, and that he was not at peace with the world and his God; that the declaration contained matters of opinion of declarant which were not admissible in evidence, and that as the accused was entitled to all of the declaration being considered by the jury, a part thereof could not be eliminated and the remainder admitted.”

The dying declaration must go to the jury in its entirety. 32 An. 1086.

The declaration went to the jury in its entirety. No part of it was eliminated.

The declarations of the deceased are admissible only to those things to which he would have been competent to testify if sworn in court.

They must therefore in general speak to facts only, and not to mere matters of opinion, and must be confined to what is relevant to the issue. 1 Greenleaf, Sec. 159.

They are admissible only where the death of the deceased is the subject of the charge and the circumstances of the death are the subject of the dying declaration. 1 Greenleaf, 156.

The declaration of the deceased was confined to those things about which he would have been competent to testify,.if a witness, as to the circumstances under which he received the mortal wound.

Dr. James Ware, who gave evidence as to the dying declarations of the deceased and to whom they were made, says in his testimony that the deceased prayed “warmly and most emphatically” during the two or three hours he was with him. The witness said: “There was nothing in his statements or acts to show that he was otherwise but at peace with the world and his God.” He did not state specifically that he was at peace with the world and his God. This was not necessary. The facts were given in the declaration which went to the jury, and they were the judges as to the conclusions to be drawn from them as detailed in the declaration. The statement in the dying declaration, “I have been shot by a man that I had no reason to expect a shot from,” or “that ought not to have shot me; he had no reason to shoot me; there was no offence given,” are not incompetent, as they relate to a fact, and not to an opinion. Wharton, Criminal Evidence, Sec. 294.

The dying declaration was given under a sense of impending death and of religious accountability, was confined to facts connected with the circumstances which caused the mortal wound, and was admissible in evidence against the accused.

Judgment affirmed.


text:
    No. 1374.
    Pierre Lahitte vs. A. G. Frere, Sheriff, et als.
    1. In case an attached debtor makes a sale of personal goods and property, however circumstantially it is executed, the court will, at the instance of a complaining creditor, examine all the facts and surrounding circumstances and therefrom determine the reality and bona fides of the contract.
    2. When an individual of limited means, engaged in the pursuit of a different kind of business in same vicinity, without any apparent inducement thereto, on the spur of the moment, purchases for a lump sum a small stock of groceries, etc., without any payment in cash, or change of possession, he must bo held and treated as a simulated vendee, or party interposed to take title for the benefit of another, unless the transaction is satisfactorily explained.
    8. Since the passage of Act 16 of 1886, amending Code of Practice, Article 398, the seizing creditor may, in answer to a third opposition alleging ownership of personal property seized, aver and prove the title fraudulent, and the court shall try and decide the issue thus made. In such case a resort to the revocatory action is unnecessary.
    PPBAL fi’om the Nineteenth District Court, Parish of St. Mary. Allen, J.

      Winchester & Briant for Plaintiff and Appellant:
    When a judgment creditor seizes property as belonging to his judgment debtor, but the title to which stands in the name of another, he assumes the burden of showing simulation. 25 An. Ill, Pierce vs. Clark.
    A possessor of property is not bound to prove the verity of the sale attacked for simulation; the burden of proof is on the party attacking. 21 An. 617, Sellers vs. Sellers.

      A sale made to one, not a creditor, for a price in cash, though inadequate to the t value of the property conveyed, can not be annulled at the instance of the creditors of the vendor, who was insolvent at the time, to the knowledge of the purchaser, on the charge of simulation. 40 An. 327, Poehelu vs. Catonnet.
    Where a sale of goods and merchandise is real andnot simulated, and delivery has been made, a creditor of the seller must attack and annul the sale as in fraud of his rights, before he seizes the goods to satisfy his judgment against the seller. 85 An. 836, Mayors vs. Delmis, Sheriff, et al.; R. O. C. 2478.
    Where the title, possession and control of the claimant have all been perfect and complete on their face, it has never been held in any well considered case that the transaction could be treated as such a pure simulation as to maintain a direct seizure. 33 An. 1031, Willis vs. Sheriff, 6 S. R. 732, Cochrane vs. Gibcrt.
    Fraud is never presumed, but must be proved with legal certainty. 18 An. 123» Bridgeford & Co. vs. Simonds. It. C. C. 1848.
    Good faith in contracts is always presumed. The onus of proof is on him who alleges bad faith. 24 An. 299, Succession of Navarro.
    If a sheriff makes a seizure of property after he has been informed that the title is not in the debtor, but in some third person, he is bound in solido with the seizing creditor to indemnify such third person in damages. 15 An. 491; Atkinson vs. Atkinson, 6 S. It. 538; Macias vs. Loris, Sheriff, et al., 41 An.; 4 R. 39; 29 An. 214; 1 It. 140; 34 An. 58; Taylor’s Digest, 595, 596, 597.
    Indemnity bend neither lessens nor adds anything to the sheriff’s obligations or duties, nor will it justify him in making an illegal seizure. 12 An. 174, James vs. Thompson.
    Where the facts of a case present a double aspect, one consistent with fair dealing and the other involving dishonesty of purpose, the court, unless the scales decidedly preponderate for the latter, will strike the balance in favor of honesty and innocence. 7 An. 197, Greenwood vs. Lowe.
    The mere fact that one continues to live with her children on a place after selling it to them, is not a badge of simulation. 2 An. 912, Lindeman vs. Theobalds.
    A joint possession is the possession of the one holding title. 13 An. 155, Haile vs. Brewster.
    If vendor and vendee both live in the house sold, possession follows title. 3 X. S. 337; 19 L. 349; 1R. 41; 11 R. 533; 6 An. 710.
    Where a husband living with his wife in a house belonging to her, and attending with her to a retail shop kept therein, sells the contents of the shop to her, it will be a sufficient delivery. 5 R. 494, Larochette vs. Husband.
    If tlievendor remain in possession of slaves sold, as the vendee’s overseer, their contract of this effect being registered before a parish judge, the vendor’s possession is the vendee’s, and a legal delivery is effected. 5 M. 450, Highlander vs. Fluke.
    Possession follows title. So where by the tutor’s act the title to slaves is conveyed • to his minors, the slaves are legally in their possession, though they actually remain with him. 5 An. 489, Hopkins vs. Buck.
    Where furniture in a house is purchased by the lessee and resident.thereof, from a vendor also residing therein, the delivery is sufficient. 9 An. 437, Taylor vs. Freret.
    When the vendor, who was captain of the boat sold, engaged his services as such, to the vendee, the presumption of simulation does not arise. 16. An. 6, Kngland vs. Commercial Insurance Company.
    Where a creditor attacks a sale made in the name of a third person, for the occult benefit of his debtor, the burden is upon him. Where the evidence affirmatively supporting the transaction has not been rebutted, the sale will not be disturbed. 84 An. 310, Chaff & Sons vs. Lisso.
    Although simulation is difficult of conclusive or affirmative proof, yet it surely requires, in order to shift the burden of proof upon the defendant, that the circumstances relied upon to establish the fraud should be so strong as to create highly reasonable doubts or suspicions as to the good faith and honesty'of the transaction which is sought to be set aside. 32 An. 670; Summers &Brannin vs. Clarke.
    The tradition or delivery of movable effects takes place either by their real tradition, or by the delivei’y of the keys of the buildings in which they are kept; or even by the bare consent of the parties, if the things can not be transported at the time of sale, or if the purchaser had them already in his possession under another title. R. C. C. 2478.
    When the jury has erred or failed to do justice, the Supreme Court, in the exercise of its jurisdiction, can and docs correct the verdict of the jury, and proceed to render such a judgment as will meet the ends of justice. 13 L. 110; 34 An. 1107; 33 An. 397; 29 An. 223; 39 An. 800; 2d Sedgwick on Damages 661, and-eases there cited; 6R. 457.

      Foster & Mentz for Defendants and Appellees:
    Sales of movable property are void as to creditors unless delivery has been made C. C., Art. 2247. The effect of this contract “ is strictly confined to the parties until actual delivery of the object.” C. O., Art. 1922.
    A sale omnium bonorum is not in the usual course of business, and when assailed, parties claiming under it must establish its reality. 2 An. 266; 89 An. 879.
    When property sold remains in the possession of the vendor, the presumption of simulation arises, and, as to third persons, the parties to the sale must establish its reality. C. C., Arts. 1921, 2480 ; 2S An. 928; 31 An. 653; 32 An. 1133.
    When the subject matter of a negative averment, e. g., that a sale is not real, lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. 1 Green. 79; 13 An. 208; and see 33 An. 1057, and authorities there quoted.
    When the charge of fraudulent simulation is made, and the facts are within the control of the party charged, the burden of proof is upon the party thus charged. 34 An. 847.
    ‘This case is almost identical with that in 23 An. 435, where the court said that such abuse of the equitable writ of injunction should be heavly mulcted.
    The sheriff is protected from the pursuit of the plaintiff in this case, for heprocured the seizing creditor to furnish the indemnity bond required by Act No. 37 of 1882. See Macias vS. Dorio, sheriff, 41 An. 300.
    Act No. 37 of 1882, reenacting Section 3579, R. S.J should be read in connection with Section 3580, R. S.
   The opinion of the court was delivered by

Watkins, J.

The Nicholas Burke Company, Limited, sued out an •attachment against the property of Oscar Angelloz in the parish of Lafourche, where the latter resided and was engaged in business as -a merchant, and immediately afterward — on the 10th of December, 1889 — it caused an alias writ of attachment to be sent to the parish •of St. Mary, and a seizure thereunder to be made of a stock of goods and merchandise in Morgan City, which was under the management of Pierre Angelloz — father of Oscar — as agent up to a date shortly •antecedent to the seizure.

The plaintiff claims to have purchased this stock of goods from ‘Oscar Angelloz, and to have been in the actual possession thereof, accompanied with all the indicia of ownership, anterior to and at the time of the seizure.

The object of this suit is to restrain the sale of these goods by injunction predicated on the plaintiff’s claim of ownership, and he accompanies his claim with a demand for $5000 as damages.

The defence of the attaching creditor company is that plaintiff’s title to the goods is fictitious, fraudulent and simulated, and the result of a fraudulent combination between him and its debtor to defeat recourse upon his property.

The case was tried by a jury, and a verdict and judgment were rendered for the defendant, rejecting plaintiff’s demands and dissolving his injunction; and the latter has appealed.

The facts disclosed by the record appear to be as follows, viz:

Oscar Angelloz, the debtor, resided in the parish of Lafourche, •and was there engaged in business as a merchant, and he also owned ■a small stock of merchandise which was operated and controlled by his father, Pierre Angelloz, in Morgan City, parish of St. Mary. The plaintiff claims to have bought his stock of goods from Pierre, as •agent of Oscar Angelloz, on the 5th day of December, 1889, prior to the seizure thereof on the 10th of that month. The sale was evidenced by a formal authentic act, and it was duly recorded in the conveyance office. The price stated in the act is “ $800 cash in hand paid,” and the property is described as the entire contents, good will, trade and custom of that certain grocery store carried on by the vendor, Angelloz, in Morgan City,” etc.

At the time of this alleged sale the plaintiff was engaged in business in Morgan City as a baker. He was placed in possession of the keys of the building, which was occupied as a store, and retained Pierre Angelloz as his clerk at a salary of $50 per month.

When the sheriff demanded a seizure, the plaintiff notified him of his ownership, exhibited to him his act of sale, and demanded a bond •of indemnity. The seizure was then effected, an inventory and appraisement were made, and the sheriff gave the plaintiff a receipt for the keys of the store.

In 1884 the plaintiff made a cession of his property to his creditors, subsequently obtained a discharge from his debts, and in 1885 he recommenced business as a baker, and at the time of his alleged purchase he had accumulated a small stock by dint of industry and the husbanding of his small earnings, which he valued at $1500. But he has failed to explain the source from which he derived the money with which to purchase the goods, or from which he expected to^ derive the same. He does not claim to have paid the cash, as stated in the act of sale, or to have had that sum of money in possession, or any other resources adequate to make the purchase.

Prior to the date of his purchase plaintiff had nothing more than a casual knowledge of the kind or amount of business Angelloz was doing; nor whether it was profitable or not; nor what was the amount of his daily sales.

As a witness, he was unable to state, even in a general way, the character of the stock Angelloz was carrying at the time of purchase, nor the amount or quality of any particular kind of goods that were in stock. At the time of sale no account of stock was taken. He did not even call upon Angelloz to exhibit to him his bills of purchase or invoices, or to state when the goods were purchased. He admits that he had never been engaged in the grocery business, and that he had no idea of the value of a plow, a pot, a chamber set, or a. looking-glass. Prior to his alleged purchase plaintiff did not even make a personal examination of the goods in order to possess himself of accurate information as to their value. He admits that he was at the store at 8 o’clock in the morning to deliver bread as. usual, and that nothing was said about a sale. That in the evening about 7 o’clock Angelloz mentioned it to him.

In order to give an accurate description of the circumstances surrounding the alleged contract, we have chosen to reproduce a part, of the plaintiff’s cross-examination, viz:

Q. “ Oscar Angelloz was the owner of those goods, wasn’t he?

A. “ I believe he was.

Q,. “ Who sold you those goods?

A. His agent, Pierre Angelloz.

Q,. “ Did you at the time this sale was passed see the power of attorney from Oscar Angelloz to Pierre Angelloz?

A. “ No, sir; I did not ask for it.

Q. “ You were buying this stock of goods from an agent, and didn’t ask him to let you see the power of attorney ?

A. “ Yes, sir: I do that every day.

Q. “ Did you ever see the power of attorney ?

A. “No, sir.

Q,. ‘ ‘ Who fixed the price — you or Angelloz ?

A. “I did.

Q. “ How long did it take you to close the bargain ?

A. “ About two minutes.

Q. “Were you inside the store or outside ?

A. “ Inside.

Q. “ Was there much difficulty or trouble in arriving at the terms?

A. “ No, sir; it was done in two minutes.”

Between the hours of 7 and 8 o’clock the parties went before the notary and passsed the act of sale.

It appears that the creditor of Oscar Angelloz made affidavit and filed the suit on the 4th of December, 1889, in Lafourche, and on the following day the order of attachment was granted, and the seizure therein made.

Contemporaneously therewith the sale of the debtor’s property in Morgan City was made, under the circumstances and after the manner just detailed.

During the interim between that date and the seizure complained of, on the 10th of that month, news of Angelloz’s sale to Lahite was industriously circulated in Morgan City, and most of the business people made acquainted with it.

It is a mooted question, the truth of which is asserted by one party and denied by the other, that Oscar Angelloz telegraphed his father, Pierre, the fact that an attachment had been levied upon his property in Lafourche, and on the day it was made. Our conclusion is, that such information was conveyed and acted upon; and that it exercised an influence over the conduct and actions of the parties, and m planning, devising and consummating this sale for the sole purpose of defeating a seizure under the attachment. Thata sale, as made, should have been consummated so hurriedly is unreasonable, on any other hypothesis. It is quite impossible — and equally unnecessary— to recapitulate any more of the details of the evidence in support of the opinion we entertain without making it too prolix. It will suffice to say that the sale was both simulated and fraudulent, and. conveyed no title to the plaintiff which the creditors of Angelloz were bound to respect. Manifestly plaintiff parted with no value. Since the passage of Act 46 of 1886, amending Oode of Practice, 398, the seizing creditor may, in answer to a third opposition, alleging ownership of personal property seized, “allege and prove the title fraudulent, and the court shall try and decide the issue thus made.” A revocatory action is not necessary in such case.


author: McEnery, J.

text:
    1375.
    Katherine Ker et al. vs. Widow David Ker et al.
    Whore there is only one piece of real property owned by the husband, and the wife has a legal mortgagejon it for her paraphernal rights, it will outrank a specia mortgage afterward executed on the same property by the husband. When there are several mortgages in favor of t.he same person on one piece of property, and they ax-e aggregated into one sum and secured by another subsequent mortgage, the date of the last mortgage will govern. Where said mortgage is bequeathed, the legatee can not claim privileges springing from the prior mortgages which were merged in the mortgage bequeathed to him, but must claim upon the mortgage bequeathed to him.
    A PPEAL from the Twenty-first District Court, Parish of Iberia. Mouton, J.

      J. B. Ker and L. O. Hacker for Plaintiffs and Appellants •
    1. There is a personal obligation on the part of an adjudicatee to pay the proportion of the purchase price due to the owner of a concurrent mortgage or privilege. C.P. 708; 7R. 44-402; 16 L. 163; 5An.306; 23An. 546; 24 An. 382; 14 An. 147; 7 N. S. 381. '
    2. The amount due to such concurrent mortgagee out of the price of adjudication forms a part of the purchase price for which the property may be sold, and in order to acquire title under the adjudication, the adjudicatee must either discharge such concurrent mortgage, or bind himself for its payment. Ib.
    3. If the owner of the property encumbered with such concurrent mortgage is the husband of the adjudicatee, the latter can not bind herself for the payment of such moi'tgage, because it would be obligating herself to pay a debt due by her husband, which the law expressly prohibits. C. C. 2398, 1790, 127, 2446; Heyman vs. Sheriff, 27 An. 193; quoting Spurlock vs. Mainer, 1 An. 301; also 28 An. 759,. Bienvenu vs. Prieur. When the wife therefore becomes the adjudicatee, the only way in which she can acquire title to property encumbered with prior or concurrent mortgages is to pay them. 40 An. 694.

      4. Tlie owner of such concurrent mortgage has against the adjudicatee both a. personal and a hypothecary action to recover the proportion of the price due to him as a concurrent mortgage, and can not be compelled to relinquish his, personal action merely because the adjudicatee happens to be the wife of the seized debtor and incompetent to personally assume the payment of a mortgage resting on his property.
    5. The vendor’s privilege exists only in favor of the vendor, or those who were subrogated to his rights, for the unpaid portion of the purchase price, li’or the cash portion of the price, of which the vendor acknowledges receipt, the vendor has no privilege, nor have his subrogees.
    6. Mrs. Iver was never subrogated to the rights of the vendor, in the act of sale from John Bronson to David Ker, of July 5, 1852. But even if she was, the vendor never had a privilege for the $27,750 which she claims; and her rights as subrogee can not begreaterthan his. Whatever rights she acquired under that sale arose after its perfection between the vendor and vendee; so that a legal mortgage is all that she did acquire.
    7. Privileges can not be created by convention; they arise from the law and exist in favor of the creditor until they are relinquished. 33 An. 705;. 37 An. 857, The intention to relinquish them must not be doubtful. 3 An. 600.
    8. A mere change in the form, or evidence of an obligation, and a change in the original terms of payment, by which an extension of time is granted the debtor, does not amount to a novation of the debt. Jordan vs. Anderson, 29 An, 750; Baker vs. Trellson, 32 An. 822; C. C. 2185, 2187 and 2190.
    9. A judgment recognizing a privilege in favor of one of the creditors of a debtor is no evidence against the other creditors, who were not parties to it, and the latter can at any time, when such a decree is opposed to them, show that the judgment awarding such privilege was erroneous, without the necessity of resorting to a direct action to set it aside. Sue. Roderick, 12 An. 521; Converse vs Steamer Lucy Robinson, 15 An. 433.
    10. A sale under execution, without discharging the privileges and mortgages, having a preference to that of the judgment creditor, is an absolute nullity. C. P. 684 ; 29 An. 817; 15 An. 634; 14 An. 147; 10 An. 645; 7 An. 593-614; 3 An. 542; 2 • An. 617; 1 An. 32-462; 12 R. 130; 10 R. 65-107; 7 R. 406; 3 N. S. 604; 4 N. S. 162; 38 An. 407. Particularly is this the ease when the adjudicatee is the wife of the seized debtor, as the law renders her incompetent to assume the payment of a debt due by her husband. C. C. 1790, 2398, 2446 and 127; also Hyman vs. Sheriff, 27 An. 193; Bienvenu vs. Prieur, 28 An. 759; 40 An. 694.

      White <& Saunders, for Defendants and Appellees,
    cited; 31 An. 730; O. C., Art. 2195; 32 An. 283; 37 An. 162; 33 An. 965.
   The opinion of the court was delivered by

McEnery, J.

John Bronson sold to his son-in-law, David Ker, a sugar plantation known as the Linden plantation, formerly situated in the parish of St. Mary, but now in the parish of Iberia.

A part of the act of sale is as follows:

This sale is made and accepted for and in consideration of the price and sum of $61,190.24, paid, and to be paid, as follows:

“ The said David Ker, purchaser aforesaid, admits that he has received from the said vendor, John Bronson, for and on account of his wife, Elizabeth Bronson, and as her paraphernal property, and as advancements made to her by her father, the said vendor, and to be accounted for by her in settling the future estate of the said.John Bronson, the following sums, to-wit:

“ On the 24th of February, 1851, $8500, being part of an amount specified in a receipt given by the said David Ker, and dated on the said 24th of February, 1851, for the sum of $5000, the balance of said sum being for a library of books valued at $1500, and said library having been returned to said Bronson, the sum of $5000 specified in said receipt is therefore reduced to the said sum of $3500.

“ Five hundred and fifty dollars and fifty cents, received in different sums between the first day of July, A. D. 1851, and the 8th day of October, A. D. 1851.

“Twenty-seven thousand seven hundred and fifty dollars is deducted from the price of the property herein conveyed to him, and the said Ker hereby acknowledges to have received the said last amount in the price of the property herein conveyed, and for and on account of his said wife, Elizabeth Bronson, the same being her paraphernal property, and although the said three sums make the aggregate sum of $31,809.50, received by him for and on account of his said wife, the whole as her paraphernal property, yet it is well understood and agreed that the amount advanced to his said wife by her father, and to be hereafter accounted for by her in the settlement of his future estate, is limited to the sum of $30,000, the difference between said two sums being occasioned by the interest which had accrued on the last of said sums, in the hands of the said Bronson from the day of the said David Ker’s marriage, to wit: October 10, 1850, until paid as aforesaid.

“ For the balance of said purchase money, to-wit: $33,440.24, the said purchaser has this day executed his five promissory notes, for the sum of $6688.04 each, due and payable severally March 1, A. D. 1854, 1855, 1856, 1857 and 1858. * * *

“ To secure the payment of said notes and interest, as aforesaid, it is agreed that the property herein conveyed is to remain specially mortgaged unto the said vendor until the full and final payment of said notes.”

A part of the price ($27,750) was donated by the vendor, Bronson, to his daughter, Mrs. Ker, the wife of the vendee. The husband Ker received and acknowledged the receipt of this amount as the paraphernal property of his wife. This acknowledgment was recited in the deed and recorded with it, and operated as legal mortgage upon all the real property of Ker.

For various sums of money, received from Bronson at different times, Ker executed mortgages to secure the same on the Linden plantation.

On December 5, 1857., the indebtedness to Bronson amounted to $88,870.67. To secure this indebtedness, which was aggregated from the previous sums due and secured by mortgage from Bronson to Ker, the latter, on the 5th day of December, 1857, in an act which recited the various transactions between the parties (Bronson and Ker), executed a mortgage in favor of Bronson for said amount.

The act refers to the sale of July 1, 1852, and states that the mortgage therein stipulated was designed to secure to him, Bronson, the sum of $33,440.24, and to his daughter, the wife of Ker, the sum of $31,809.50, as a part of her paraphernal rights and property. It is evident that the paraphernal rights of Mrs. Ker were unaffected by the mortgage, as they had previously existed, and they could not be made to date and take rank and become concurrent with other mortgage rights asserted in the act.

But, as between Bronson and Ker, the new mortgage superseded the former mortgage. The new mortgage was an entire substitution for the former mortgages between them existing on the Linden plantation. In the year 1865, Bronson died, and by his will bequeathed the said mortgage of $88,870.67, secured on the Linden plantation by said act of mortgage of 5th December, 1857, to Mrs. Elizabeth Bronson, wife of David Ker, in trust for all of her children, except G. Bronson Ker, and directed his executors to transfer said act of mortgage to her. This was done by the executor.

Mrs. Ker sued her husband for separation of property and the settlement of her several paraphernal claims. There was a judgment in her favor, which was executed.

A fi. fa. issued, the Linden plantation was sold under her judgment, and purchased by her for the sum of $11,265, considerably less than the amount of her legal mortgage. This plantation was mortgaged hy Mrs. Ker, after it had been adjudicated to her. The mortgage was foreclosed and the property sold. Wm. H. Willis purchased the plantation and sold the. same to O. W. Willis, who sold it and afterward repurchased it.

The plantation was finally sold to H. & O. Newman, who are now in the possession of the same, and defendants in this suit.

‘ ‘ This suit is brought by the children and heirs of David Ker, to ¿ave recognized and made executory a certain mortgage and vendor’s privilege upon the Linden plantation in Iberia parish, now in the possession of H. & O. Newman,” and they ask that the adjudication of the Linden plantation to their mother, Mrs. Ker, and the-subsequent sales of said property be declared null and void, and that said property be brought back and restored to the succession of' David Ker.

Among, the exceptions filed was that of no cause of action by defendants. This was the first, and sustained by the court. From this judgment in favor of defendants plaintiffs have appealed.

The right of defendants to recover depends upon what rank is to-be given to the mortgage under which they claim. This is evidently the mortgage of the 6th December, 1857, which was bequeathed to them. There are no rights, mortgages or privileges prior to this mortgage under which they claim. They were all merged in this act, and date from its creation — 5th December, 1857.

Does this mortgage prime the legal mortgages of the wife existing prior to this date ? Mrs. Ker’s legal mortgage was stipulated in the act of sale from Bronson to Ker and recorded. It was. a legal mortgage from that date, and therefore primed the special mortgage of the plaintiffs on the Linden plantation, as this was the only immovable property owned by David Ker.

There is no complaint of the regularity of the proceedings in the suit of Mrs. Ker vs. her husband. The judgment was a valid one, and executed on the property of David Ker which was adjudicated toiler. The proceeds of the sale did not bring a sufficient sum to extinguish her legal mortgage on the Linden plantation, and she retained the price in her hands.

Mrs. Ker’s legal mortgage for several years out-dated the special mortgage of defendants’ of December 5, 1857. It rested alone and exclusively on the Linden plantation, as there was no other property of said David Ker upon which it could rest.

Judgment affirmed.

Breaux, J., recuses himself.


author: Breaux, J.

text:
    No. 1377.
    H. T. Cottam & Co. vs. Mrs. John D. Currie et al.
    A rule dissolving an injunction having been tried in part and overruled, in so far as the issues could be tried on the face of the papers, and part of the rule requiring evidence for its trial having been referred to the merits, an appeal does not lie either from the order overruling part of the rule, or from the order referring part to the merits. The judgment is interlocutory and does not operate an irreparable injury. The order referring part of the issues requiring evidence for their trial is within the discretion of the District Court. An appeal from an order refusing to dissolve an injunction on the face of the papers is not maintainable.
    A PPEAL from the Thirteenth District Court for the Parish of St. Landry. Lewis, J.

      Thos. II. Lewis & Son for Plaintiffs and Appellees.

      E. North Gullom for Defendants and Appellants.
   The opinion of the court was delivered by

Breaux, J.

The defendants filed a rule to dissolve an injunction. On the trial the court rejected the rule as to matters apparent' upon the face of the papers, and secured to plaintiffs the “ benefit of all matters therein set forth which was referred to the merits.”

From this order an appeal has been taken.

Motion is made to dismiss, on the ground that the judgment appealed from is interlocutory and works no irrepai’able injury.

Only part of the rule has been tried — that relating to matters apparent on the face of the papers. The other issues have been referred to the merits.

If we were to entertain jurisdiction at this time, we could only review the court’s ruling with reference to issues apparent on the face of the papers, and direct that the order referring part of the issues to the merits be rescinded, and that they be tried as rules and exceptions are generally tried.

This division of issues we prefer to avoid, as it will not assist in reaching correct conclusions, nor in bringing this suit to an earlier close.

In several cases the opinion has been expressed that the rules, exceptions and motions should not be referred unless they presented issues appertaining to the merits, or which could be more satisfactorily tried with the merits; but the court’s discretion to refer or not has never been denied.

The appeal is premature, as the order made on the rule is interlocutory and not a final decree. Any error committed can be corrected by appeal from the final judgment.

We have carefully read the rule filed in the case, and have given careful consideration to each ground urged for the dissolution of the injunction and find it impossible to conclude that the order entered in this case can be appealed from at this time.

If we were to entertain the appeal, we could only review the case on the face of the papers, in the condition the case is presented to this court.

The only issues decided by the court a qua are those presented on the face of the papers.

“ An appeal taken from an order refusing to dissolve an injunction on the face of the papers is not maintainable.” Sue. of Zenon and Elise Lebauve. 38 An. 357; 3 An. 437; Huntington vs. Sheriff, 7 An. 205; Osborne vs. Olayton, 3 L. 437; 14 An. 388.

Appeal dismissed.


text:
    No. 1373.
    Henry A. Willis vs. George E. Wasey.
    In an action to cancel the recordation of claims to real estate, based upon a contract, no judgment can be rendered, unless all the parties thereto are made defendants. Citation to one only is insufficient. Courts can not be required to decide cases piecemeal, or expose themselves to render contradictory or unavailing judgments.

      APPEAL from the Fourteenth District Court, Parish of Calcasieu. Read) J.

      White & Saunders and D. J5. Gorham for Plaintiff and Appellee:
    1 — ON RES JUDICATA.
    “To establish the plea of res judicata there must be an identity of parties of capacity, of object, and of cause of action.” 30 An. 861; 31 An. 685; 29 An. 772; Tr., p. 15, 16.
    “In order that a judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and determined on its merits.”
    ‘ If the first suit was dismissed for defect of pleadings, or parties, or a misconception of the form of proceedings, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.” Louque, p. 3-47, Secs. 11, 15; 4 Wallace, 232, Hughes vs. United states; 14 Peters 156, Walden vs. Bodley; 8 An. 818, and authorities cited; 1 Greenleaf, Secs. 529, 530.
    “ Pleas like res judicata, precluding an examination of the merits, can not be aided by inference, but must bo established beyond all question.” TI. I)., p. 763, Sec. 3; uar.521; 5 An. 103.
    2 — ON JURISDICTION RATION» MATERIAS ofc RATION» PERSONAS.
    “Jurisdiction of court is to be tested by the value of the thing demanded.” 15 An. 120; 38 An. 395, 396.
    This is an action to declare null and void a recorded notice and alleged contract affecting lands worth $15,000. The value of the land gives jurisdiction to the court. 37 An. 186; 38 An. 643; ,33 An. 1351; Tr., pp. 1 to 14 inclusive.
    A real action is properly brought in the parish where the property is situated; and defendant, absentee, is properly brought into court through a cv/rator ad hoc. 38 An. 764; 39 An..312; 33 An. 170; 31 An. 540; 29 An. 817; 30 An. 879; G. I?. 163.
    This is not a personal action for a money judgment; but a real action to remove a cloud affecting real estate, and the court has jurisdiction, 38 An. 1403; 34 An. 822; Tr., p.-.
    3 — -ON NO CAUSE ON ACTION.
    “ On the trial of the exception of no cause of action the court can consider only the allegation of the petition and the exhibits referred to and made part thereof.” 30 An. 1148; 39 An. 660.
    “ On the trial of such an exception, which is in the nature of a demurrer, all aver ments of the petition are taken as true.” H. I)., p. 1169, Sec. 2; 14 L. 421; 12 An. 390; 13 An. 138.
    The allegations admitted and exhibits and deeds considered, the cause of action is plainly set forth.
    4 — ON ALLEGED EXCEPTION ON ESTOPPEL.
    An exception that plaintiff is without interest and can not stand in judgment is dilatory, must be filed in limine lites. It is too late after issue joined. 3 AC. 378; 2X. S. 389; 5 X. S. 343; 1 L. 113, 283; 41,. 328; 7U181; 2 An. 1017; 5An.3S2; 6An.538.
    Such an exception comes too late after default. 34 An. 850; 35 An. 113; 37 An. 100; 38 An. 675.

      If not pleaded in limine lites, it is'considered waived by the general issue. 6 An. 388; 19 D. 429; 11 An. 688, 689; 18 An. 206, 207; 3 An. 150; 6 An. 533; 23 An. 137, 207, 224.
    A general denial admits the capacity of plaintiff. 21 An. 188; 24 An. 404.
    Evidence taken by commission does not constitute judicial admissions; and is inadmissible under the pleadings. 1 Greenleaf, Sec. 205.
    Parol evidence is inadmissible to show that as to title an act is different from what it purports to be on its face. 10 Da. 181, Brown vs. Cobb; 26 An. 445; 26 An. 731; 27 An. 198; 40 An. 157.
    Without allegations of fraud, error, or simulation, parol evidence is inadmissible to contradict, vary or change a recorded deed which is conclusive evidence between the parties and privies. 1131.630; 7 N. S. 203; ID. 240; 2 D. 600; 4D.1; 9 D. 351; 11D. 276; 4B. 299.
    “ The rule is well established that unless the representation has been really acted upon, the other party acting differently, that is to say from the way he would have acted, no estoppel arises.” Bigelow on Estoppel, p. 549, and authorities cited.
    An agent may sue in his own name. 19 An. 526; 2 D. 264,
    5 — ON THE MERITS.
    “ The action of slander of title admits of three defences: (1) Denial of plaintiff’s possession; (2) denial of the slander; (3) admission of the slander.” 35 An. 355.
    “ Defendant must either admit or deny the slander; but he can not do both, for the pleas are inconsistent.” H. D., p. 1439, Sec. 2; 9 3D 714; 2 B. 331; 12 An. 873; 11 D. 188.
    “ Defendant in action of slander of title by setting up title becomes plaintiff, and he must succeed or fail on the strength of his own title, and not on the weakness of his adversary’s.” 83 An. 249.
    A public authentic act, describing property duly recorded, is a taking possession and notice to the world. 37 An. 420.
    “ A written agreement is conclusive between parties and privies, who are estopped from contradicting same.” H. D., p. 532, XV, Sec. 2, and authorities cited.
    “ In the absence of allegations of fraud, error, etc., a counter title or something equivalent is the only proof admissible between the parties or privies to the contract to prove simulation or other conditions than those expressed.” I-D D., pp. 534, 535, Sec. 4, and authorities cited; O. O. 2276; 4 An. 58, 487; 5 An. 132, 203; 11 An. 328; 14 An. 584.

      ** An absolute conveyance of land can not be shown by the grantor to be a grant in trustfor himself, no fraud or mistake being alleged.” Flint on Trusts, Sec. 31.
    “ Vague and inconsistent allegations can not support a petition.” H. D. 1144, No. 1, and authorities cited.
    An act sans seeingprwi can not be admitted without proof of its execution. 6 N. S. 262, Griffith vs. Towles.
    A conveyance of real estate to have effect against third parties must be properly recorded in the parish where the property is situated. 37 An. 566; O. C. 2266, 2253 ; 25 An. 290; 21 An, 591; 28 An. 807; 21 An. 427, and authorities cited; 'Acts 1855, p. 335; 2 An. 598; 6 An. 772, and authorities.
    A contract without a consideration is a nudum pactwn> and can not be enforced. Chitty on Contracts, pp. 26, 27.

      G. A. Fournet and Fournet & Pujo, for Defendant and Appellant,
    cited: 41 An. 694; 29 An. 821; 12 An. 191; 13 An. 89; 1 M. 87; 7 An. 89; 13 An. 260; 28 An. 419; 21 An. 3; 8 N. S. 370.
   The opinion of the court was delivered by

Bermudez, O. J.

The plaintiff brings this action to obtain the erasure, from the conveyance book in Calcasieu parish, of the recordation therein, made by the defendant, of a notice, or warning to certain parties and all it may concern, of his pretensions in or to some real estate which the plaintiff alleges to have purchased prior to said inscription, when there existed no adverse claim whatever against his vendors.

He charges that the recordation of that notice, and of the contract to which it refers, is a cloud on his property, which prevents him from freely disposing of it.

He prays for citation against the defendant, a non-resident, whom he caused to be represented by a curator ad hoc, who sets up a number of preliminary and other defences by exceptions and by answer.

From a judgment in plaintiff’s favor, this appeal is taken.

It is patent that the plaintiff claims as owner; that he avers that the nondescript contract, the recordation of which he assails, was entered into, on its face, between Geo. E. Wasey, defendant, and one Charles Winchester; but he fails to ask that the latter be cited.

Manifestly, this court can not pass upon the validity and binding effect of the acts attacked and of their recordation, unless the parties named therein be cited to answer this demand herein set up.

The authorities in support of this proposition are numerous and' indisputable. 10 R. 387; 32 An. 106; 32. An. 92; 27 An. 365, and Bonney vs. Ludeling, 41 An. 633, which recognizes them and quotes them with approval. It is therefore ordered and decreed that the judgment appealed from be reversed, and that this suit be dismissed with costs.

On Application for Rehearing.

The judgment rendered herein dismissing the suit is not to be construed as terminating the controversy. Plaintiff remains at liberty to begin new proceedings.

The non-suit is intentional. Remanding the case for the purpose of making a new party would not practically have availed the plaintiff, who, if he have legal grounds of complaint, should present them under another phase, a new material fact to occur, intervening, to serve as a solid foundation for an action, with which the parties named in the pretended contract could be legally connected, so as to have the differences between plaintiff and them finally adjudicated upon.

It may be that the non-joinder, on which the opinion is based, was not urged in limine. The attention of the court was called to it. Whether this was done in the brief or in oral argument is immaterial, for the reason that the court could have noticed it, proprio motu, and ruled as it has.

Rehearing refused.


text:
      No. 1384.
    Louis Granier vs. Louisiana Western Railroad Company.
    1. "When a person claiming the right to travel on a train of a railroad company, as a passenger holding a commutation, ticket issued by the agent of the company, on the alleged ground that he is one of the members of the partnership named on the face of the ticket. Held, that he must show the conductor that his name appears indorsed thereon in compliance with the conditions specified in the contract on the reverse of the ticket.
    2. In case the conductor of the train should decline to recognize his right to thus use the commutation ticket and should eject the holder, and damages are judicially claimed therefor, the legal obligation is imposed on the claimant to establish by a clear preponderance of proof, if denied, that there existed such a partnership at the time, and that he was one of its members
    PPBAL from the Thirteenth District Court, Parish of Acadia. Lewis, J.

      Wilson, Sigur & Mayer, Estilette & Dupré and Kenneth Baillio for Plaintiff and Appellee:
    Mr. Pierce, in his work on Railroads, pp. 283, 284 and 285, says:
    Liability of the company for injuries committed by lessees and others using its tracks and liability of lessees. — The company can not, in the absence of special statute authority and exemption, divest itself of responsibility for the torts of persons ope2*atmg its road by transferring its corporate powers, or leasing the road to them. It can not by its own act absolve itself from its public obligations without the consent of the Legislature. It is liable for injuries to its passengers caused by the negligence of another company which it allows to use'its road.
    See also Amer. Dig., Vol. 2,1156, title, as follows: Railroads. — Lessees’ liability, 248 A railroad corporation is not relieved from the obligations imposed by its charter by a lease of its road to another company. Harmon vs. Columbia & (4. n. Co. (S. 0.),5 8. K. 835.

      249. A railroad company can not, by leasing its road, avoid liability to a shipper of freight for loss caused by fire at a depot, where no authority for such lease is conferred by statute. International & G. N. R. vs. Bloody (Tex.), 9 S. U. 465.
    250. A railroad company can not avoid its liability for negligence resulting in the death of a passenger by showing that its road and trains were operated by another company. Palmer vs. Utah & N. Ry. Co. (Idaho), 16, p. 553.
    251. A railroad company is directly liable to one who is injured while riding on the train of another company operating over defendant’s road by reason of a defective or mismanaged switch maintained by defendant, toward the maintenance of which the carrier company paid, defendant a certain sum monthly Stodder vs. X. Y., L. 10. & AY. R. Co., 2 N. Y. S. 780.
    See also Vol. 1, Ainer. Dig. 1086, as follows: No. 230. A lease duly authorized by law will not release the company from liability for afailureto discharge its charter obligations, unless the law giving the power to lease contains also a proviso to that effect. Central & Bl. R. Co. vs. Morris (Tex.), 3 S. AY. 457, Yol. of 1889, p. 455.
    No. 177. A railroad company, organized under the laws of Nebraska, can not relieve itself from the liability imposed by Comp. St. Neb. C. 72, Art. 1, S. 3, for all personal injuries to passengers, except when these are criminally negligent or violate some express rule of the company actually brought to their notice by permitting a foreign railroad company to operate its roads as owner of its capital stock. A release from such liability can he had only by express statutory enactment. Cholutto vs. Omaha & R. V. R. Co. (Neb.), 41 N. U. 1106.

      Henry L. Garland, Laurent Dupré, and Leroy & Blair for Defendant and Appellant:
    1. Railroad companies have a right to eject from their cars any person who refuses to pay fare or comply with reasonable requirements as^to tickets. DeLueas vs. Railroad Company, 38 An. 933; Rawitsky vs. Railroad Company, 40 An. 47; McGowan vs. Blorgan Company, 41 An. 732; Mosher vs. Railroad Company, 127 U. S.; Boylan vs. Railroad Company, 132 U. S. 146; Hutchinson on Common Carriers, Secs. 569,581.
    2. “A passenger who refuses to pay fare or to obey a reasonable regulation of the carrier forfeits his right to he carried, and at once puts himself in the condition of an intruder, and may be ejected at any point upon the carrier’s route at which he may choose to put him off.” Hutchinson on Common Carriers, See. 590; The G. AY. R. Co, vs. Bliller, 19 Blich., p. 313; A. T. & S. E. R. Co. vs. Gants (Kansas, 1888), 34An. and IS. R. C. 290; AAryman vs. Railroad Co. (Minn. 1885), 22 A. and E. R. O. 402.
    3. The fact that plaintiff succeeded in getting passage on the ticket on one or two occasions subsequent to the ejectment is entirely immaterial. Thorp vs. Railroad Company (Connecticut, 1889), 17 Atlantic Reporter, 791.
   On Motion to Disbiiss Apreal.

The opinion of the court was delivered by

Watkins, J.

The single ground of the motion is that the defendant and appellant has not given an appeal bond in conformity to law and the order of the court; and the reason assigned by Moore’s counsel is that the bond was never signed by the defendant and appellant.

It was signed as follows: “ Henry L. Garland, attorney at law and attorney in fact for A. O. Hutchinson; O. O. Duson, W. W. Duson.”

In the body of the bond occurs this recital, viz:

“Know all men by these presents that one A. O. Hutchinson, special agent of La. West. R. R. Co. defendant, cited to answer in the suit of Louis A. Granier vs. Louisiana Western R. R. Company, No. 109 of District Court, as principal, and C. C. Duson and W. W. Duson as securities, are held and firmly bound,” etc.

Then, it is clear that H. L. Garland signed the bond as the attorney at law of A. C. Hutchinson, special agent of the defendant railroad company; and that C. O. Duson and W. W. Duson signed as the sureties of the defendant company.

We fail to appreciate the objection that is urged against the bond. On the face of the bond it appears that A. C. Hutchinson was the special agent of the defendant company, cited to answer in this suit; and that as his attorney H. L. Garland signed the bond. That signature fulfils all the requirements of the law, in so far as the principal is concerned, and no doubt is expressed as to the signatures of the securities.

It has «¡often been held by this court that the signature of the appellant is not necessary to an appeal bond; but that it is enough that it is signed by a sufficient surety. His obligation to discharge the judgment rendered against him on the appeal, results from the judgment itself. 9 M. 84; 10 M. 74; 6 La. 824; 10 La. 410; 8 R. 264; 5 R. 59; 12 An. 880; 14 An. 701.

The appeal bond is perfectly regular in form, and is validly and sufficiently signed, and appellee’s motion is denied.

On the Merits.

I.

The plaintiff claims $10,000 as damages, of tne defendant, on the ground that, while traveling on one of the trains of the railroad company as a passenger, he was ejected violently therefrom by the conductor, and in violation of its contract of safecarriage. The case was tried by a jury, who rendered a verdict in plaintiff’s favor for $8000. From the judgment thereon based, the defendant has suspensively' appealed.

The facts appertaining to the ticket on which the plaintiff claimed, the right to ride on defendant’s train are as follows, viz:

On or about the 24th of January, 1889, an agent of the railroad company at Mermentau station, in the parish of Acadia, this State, sold to one George Y. Snoffer a 1000-mile commutation ticket,” which entitled the members of the firm of G. Y. Snoffer & Co. to travel on the lines of railroad of the Southern Pacific Company in Louisiana, upon the terms and conditions mentioned on said ticket, and especially on the condition that they signed their names upon the reverse thereof before using it.'

The ticket is couched in the following terms, viz:

“ Southern Pacific Railroad Company 1000-mile commutation ticket.

“ For the exclusive' use of Mr. G. Y. Snoffer & Co. (5) 'Good only when stamped on the back by the selling agent, and then good only over the Southern Pacific Company’s lines in Louisiana.

(Signed) “W. C. Watson,

“3762. G. P. andT. A.”

On the reverse is found the stamp of thé selling agent across tha face of the following agreement, viz:

“ This ticket is good only for persons named hereon, and when presented for or by any other will be taken up and returned to the general ticket office. * * * * * *

The above conditions fully understood and accepted. Good only over Southern Pacific Company’s lines in Louisiana.

(Signed) “ G. Y. Snoffer.”

In the defendant’s answer it is specially averred that the signatures of the members of the alleged firm were never placed on said ticket as required by the terms of the ticket, * * * and consequently no members of the firm ever became entitled to travel on said ticket.” And the company further avers that “ the plaintiff never was a member of the firm of G. V. Snoffer & Co., and therefore he never was entitled to travel on said ticket, even if it had been properly signed.” It further avers “that there never was such a firm as G. V. Snoffer & Co., and, hence, the obtaining of such a ticket involved a deception and imposition upon defendant, and conferred no right to transportation upon any one.”

In this, as in all like eases, the onus of proving the performance of all the essential conditions of a contract of carriage of a passenger is on the plaintiff; and, claiming rights of a passenger under a “ commutation ticket,” the .burden is on him to show affirmatively that all of the essential conditions of such a contract were fulfilled. And it was, more particularly, his duty to show the existence of the firm of G. V. Snoffer & Co., and that he was a member of it. Failing-to discharge either one of these requirements, his case is not made out, and the defendant is entitled to judgment.

Now, it is a fact admitted by the plaintiff that, when he and his partner entered the defendant’s train on the night of January 25, 1889, it was commutation ticket No. 8752. — the one described above —that was tendered to the conductor, on his calling for his (plaintiff’s) fare to Morgan City.

Therefore, we are to determine what is the true meaning and import of that part of the contract on the reverse of the ticket, which declares that “this ticket is good only for persons named hereon,” etc. This is apart of the contract entered into by the purchaser, and it evidences one of the obligations undertaken by him in favor of the company, and it constitutes one of the conditions on which the ticket was issued. The only person named thereon, as shown above, is G. Y. Snoffer, and not G. V. Snoffer & Co.

In the circular letter of instructions issued by the general passenger and ticket department of the defendant company, and addressed to agents and conductors, under date January 8, 1889, prior to the-sale of a ticket to the G. V. Snoffer, we find the following, viz:

“ Instructions to agents and conductors in Louisiana, with reference to the sale and use of commutation tickets, superseding all previous instructions in conflict therewith. * * *

“They may be sold to firms, when each member constituting same affixes his signature to the conditions as stipulated on the back of the ticket.

“It will be the duty of conductors to refuse for passage any of these tickets that have been issued subsequent to date of this circular, confer ry to requirements as herein set forth, and to the conditions stipulated on the back of such tickets.”

(Signed) ' W. O. Watson,

Gen. Pass, and Ticket Agt.”

Receipt of copy of this circular was duly acknowledged on the 10th of January, 1889, by the local agent who sold the ticket to Snoffer.

As the ticket in question is not signed by each member of the alleged copartnership of G. V. Snoffer & Co., but by G. Y. Snoffer alone, the conductor’s refusal to receive it for the passage of plaintiff appears to be justified. In addition, the local agent states as a witness, that the instructions of the company were brought home to the purchaser at the date of sale of the ticket to him.

This, however, is denied by Snoffer as a witness. But the fact remains that in the body of the ticket is found the firm name of G. V. Snoffer & Co., while in the contract on the reverse is the name of G. V. Snoffer alone, and this would appear to confirm the correctness of the agent’s testimony. Had Snoffer carried into execution his own original idea, he would have, doubtless, signed the contract G. Y. Snoffer & Co. In this he was evidently restrained by the agent; otherwise the latter would have declined to stamp it, as he ■did.

But conceding, for the argument, that this construction of the contract is doubtful, and that the proof does not make it clear that Snoffer was duly advised of the company’s regulations in this regard, we feel quite clear that the plaintiff’s case must fail on account of the insufficiency of proof to show the existence of the partnership of'G. V. Snoffer & Co., as alleged, and of which he was a member.

Of course the burden of proving its existence was on plaintiff.

The averment is that this partnership was composed of G. V. Snoffer, L. A. Granier and George Crul or Himel. The only witnesses introduced on the part of the plaintiff in respect to the existence of the firm were the alleged members themselves; and their testimony is doubtful to say the most for it. There was not a single witness from Morgan City, where its business domicil was alleged to be, who was produced and stated that such a firm existed at that time, or had ever existed, of that name or composed of those persons. No books of any kind could be produced showing the dealings or transactions of the firm.. The partners did not appear to know what their respective interests in the business were. No settlement or division of profits had ever been made. There was no property assessed in the name of such firm, and no license had ever been issued to such a firm. If such a firm ever existed, its existence was unknown to the public officials of plaintiff’s own parish. One of the alleged members of the company stated, over his own signature, and in the presence of witnesses, that G. Y. Snoffer was doing business on his own account, and had no partners. On the 1st of March, 1889, G. Y. Snoffer published a circular letter “to fish dealers,” in which he speaks of having located at Mermentau, and desired to notify his patrons and fish dealers generally, and signed it—

“ Respectfully,

“ G. V. Snoffer.”

A great many additional facts and circumstances might be detailed to the same effect; but it is unnecessary. The plaintiff has failed to make his proof even plausible on this salient point of his case, and he is not entitled to recover. Other points need not be considered. It would be the work of supererogation.

It is therefore ordered and decreed that the verdict of the jury and the judgment thereon based be annulled and set aside; and it is further ordered and decreed that the plaintiff’s demands be rejected at his cost in both courts.