text:
    No. 8199.
    Heirs of Stafford vs. Henry Renshaw.
    On the Motion to Dismiss.
    The case being fixed for trial on the merits in this Court, whether or not the bond is sufficient for a suspensive appeal, the Appellee has no interest to have the appeal dismissed as suspensive, inasmuch as the case would still remain in this Court on the devolutive appeal.
    On the Merits.
    A final decree of this Court must he executed by the Court a qua, in the manner ordered in the judgment, and the inferior tribunal has no authority to enquire into the legality of the mode of execution so decreed.
    The plea of payment made hy the Appellees, is not supported by the evidence.
    When the writ of injunction was not clearly abused, the defendant, on its dissolution, is only entitled to counsel fees in the way of damages.
    APPEAL from the Twelfth Judicial District Court, parish of Bapides. Bowman, judge ad hoc.

      Jas. Andrews, Jr., and W. F. Blackman for Plaintiffs and Appellees:
    Appellee contends that a writ of seizure and sale cannot issue against the property of a Succession under administration, where plaintiff has obtained a judgment against the succession in an ordinary action. C. P. Art.; 1 An. 205; 2 L. 547; 12 An. 642; 3 IT. S. 498.
    Plaintiff having elected to pursue the via ordinm'ia, cannot afterwards resort to the executory process to enforce the collection of a judgment recognizing his mortgage. 3 IT. S. 498; 31 An. 112.
    Where the heirs are present or represented and in possession of the property, the writ of seizure should issue against them and not the executor, who has no seizin. C. P. —.

      Bayne & Benshaw, J. G. White and B. J. Bowman for Defendant and Appellant:
    The decree in 30 An. 853, directing the seizure and sale of the mortgage property herein is correct. 24 An. 383; 20 An. 311.
    A final decree of the Supreme Court is to be executed in the manner directed by said. Court; it cannot he controlled by the District Court. 11 La. 366 ; 6 Rob. 92; 20 An. 223.
    The writ herein issued on authentic evidence. C. P. 732. A mortgagee’s rights are not impaired, because a judgment reoognizing the validity of the mortgage and directing its enforcement by seizure and sale. 12 An. 592.
    A judgment cannot be enjoined for causes, which might have been pleaded prior to judgment. 6 An. 282; 3 Rob 111: 12 An. 861 20 An. 551; 21 An. 464; 8IT. S. 513; 2 La. 182.
    Tn an action of nullity, it must appear that plaintiff could not by reasonable diligence have sooner known matter relied on for relief. 3 An. 647; 6 An. 800; 1 Rob. 524; 14 An. 297; 18 An. 507; 12 An. 86; 15 An. 275.
    Mere inferences from general statement of counsel’s opinion and conversations of clients with him are not evidence.
    The judgment sought to be annulled liaving been rendered by Supreme Court cannot be annulled by District Court. 2 La. 15; C. P. 608,
    Damages should be allowed on dissolution of the injunction. 23 An. 199; 12 An. 181; 3 An. 589; C. P. 304.
    The injunction bond is a solidary obligation. 28 An. 676; 19 La. 497; 12 M. 81; 16 La. 173.
   On Motion to Dismiss

The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiffs and appellees move to dismiss this appeal, because “ the bond is for no amount fixed by the court, and not as is provided for by article 577, O. P., there being no order of the judge fixing the amount for a suspensive appeal; and the amount of the bond, in such a case, should have been for one-half over and above the judgment annulled.”

This is a suit for the nullity of a judgment. It is coupled with an injunction to arrest the sale of the property under seizure. The District Court annulled the judgment and perpetuated the injunction. From this judgment the defendant appealed.

The order of appeal fixes the amount of the bond at $250 for a devolutive appeal, and • the bond furnished for such appeal is for that amount. The order does not fix any as the amount of the bond for a suspensive appeal, but merely directs that it be “ according to law.”

Had the injunction been dissolved, it would not have been difficult to ascertain the amount for which a bond for a suspensive appeal should have been furnished; but, as the injunction was perpetuated and the judgment about to be enforced was annulled, it is not easily perceived at once, for what amount the bond for a suspensive appeal should have been given, the order of appeal specifying none.

The condition of all appeal bonds is that the surety shall eventually satisfy, in the place of the principal, whatever judgment the appellate court may render against him.

Under any contingency such judgment, however adverse to the defendant, could only be, in the present case, one affirming the judgment of the lower court which annulled the judgment attacked, and perpetuated the injunction and condemned him to pay costs.

The amount of the bond in the case of a suspensive appeal from a judgment ordering the payment of money is fixed by Art. 575 C. P.

On the wild assumption that the costs in the case amounted to twenty-five hundred dollars, the bond given for a suspensive appeal, which is for four thousand dollars, would be amply sufficient. The lower court fixed the amount of the bond, in case of a devolutive appeal, at $250, which could only be for costs. It virtually fixed the same amount for the bond in ease of a suspensive appeal.

The case is before us, and is now to be decided on its merits. It is impossible to conceive of what use it would prove to the appellee to dismiss the appeal as far as suspensive, as the suit would still remain before us on the devolutive appeal.

Motion denied.

On the Merits.

The object of this suit is to annul a judgment of the Supreme Court, rendered in 1878, whereby Henry Renshaw was recognized as a creditor of the succession of Leroy A. Stafford, for thirteen thousand five hundred dollars, $13,500, with interest, and the property mortgaged to secure the claim was ordered to be seized and sold to pay the debt. 30 An. 861. The suit is coupled with an injunction to prevent the execution of the writ issued on that judgment, for the sale of that property.

The grievances alleged are twofold: 1st, that Renshaw having sued via ordinaria, could not change his proceeding to one via executiva; and 2d, that the debt, liquidated by the judgment, was paid or novated.

The defense was a general denial, and a prayer for damages. From a judgment against him the defendant has appealed.

• 1st. We do not consider that the plaintiff, Renshaw, has proceeded in any manner prohibited or unauthorized by law or jurisprudence.

All he had to do was to produce to the lower court an authentic copy of the judgment of the Supreme Court in his favor, and to have a writ to issue in furtherance of its behests. That is precisely what he has done. It was useless to obtain any decree for the execution of that judgment. C. P. 915.

It is unnecessary to determine the character of the suit decided by the Supreme Court. We have no power to review the decision of that Court, in this proceeding, and must, and do assume, that it was correctly rendered, and has done justice between the parties. It is sufficient that it recognized Renshaw as a creditor for the sum stated, admitted his mortgage, annulled the tax sales of the property affected thereby, and ordered the real estate to be seized and. sold to pay the debt. It is as formal and explicit as any judgment could be, and fully justifies the course pursued by the plaintiff in the case in which it was rendered.

The lower court had no authority to arrest, for the reason averred, the execution of that judgment. It was its duty to enforce it. This first cause was not on its face a ground of nullity. 11 La. 366; 6 R. 92; 20 An. 521; C. P. 604.

2d. The plaintiffs aver that the claim liquidated by the Supreme Court was paid or novated. The burden was on them to establish the extinction of the deb.t. A judgment can be annulled on a plea of payment. O; P.615.

The accounts between the original parties, planters and factors, for a number of years, were produced, and several witnesses were heard on the trial of the case to show the condition of their relations.

An attentive examination of the evidence satisfies us not only that the plaintiffs have failed to prove payment or novation, but also that the defendant has actually established that his long existing and disputed claim, twice acknowledged, still remains unsatisfied. It is high time that the judgment of the Supreme Oourt, rendered in 1878, be now carried out.

The charge of fraud against the defendant is reckless, and without' foundation.

We notice in the record a bill of exception to the refusal of the district judge to permit plaintiffs to file a supplemental petition, to plead prescription against Renshaw’s claim. The lower court should have allowed the filing, but then it should have overruled the plea, for the grounds stated for refusing the filing. If the court erred, it is an error by which the plaintiffs have not been affected, and which does not alter our conclusions.

The defendant has prayed for the dissolution of the injunction with twenty per cent damages, and twelve hundred dollars for attorneys’fees.

The lower court gave no reasons to support the judgment which it rendered. We must infer that it considered that the plaintiffs, who are the heirs of the original debtor, had shown some good ground for the injunction allowed them in limine, and perpetuated on the trial of the merits. We cannot, therefore, conclude that the remedy resorted to was clearly abused. We would not feel authorized to allow damages, other than the fees of counsel, which we think can be reasonably fixed at five hundred dollars, $500.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be reversed; and proceeding to render such judgment as should have been rendered by the lower court,

It is ordered, adjudged and decreed that the injunction herein issued be dissolved, and that the writ enjoined be proceeded with, with instructions to the lower court to have the same executed without further obstruction or impediment,

It is further ordered, adjudged and decreed that the principals and sureties on the injunction bond be condemned to pay in solido to the defendant in injunction, Henry Renshaw, the sum of five hundred dollars; the sureties respectively up to the amount of their divided liability on the bond.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 8240.
    The State of Louisiana ex rel. Attorney General and William Martin vs. V. Lamantia.
    The Governor has the power to fill vacancies occurring by death, resignation or removal, during the interim between the sessions of the Legislature, subject to confirmation by the Senate, when it meets. Affirming Decision in 32 An. 934.
    The Inspectors of weights and measures for the several Districts of the City of New Orleans, are State, and not Earish, officers.

      Therefore, sec. 3924 of the Revised Statutes, which provides for their removal by the Gov. ■ ernor for a certain cause, is not repealed by Art. 201 of the Constitution, which provides for the removal of Parish or municipal officers, by judgment of Court.
    In the exercise of the power, given to him by law, of removing public officers for certain causes, the Governor is the sole judge of the existence of such causes, and his action of removal 1b final and irreversible by the Judiciary.
    APPEAL from the Oivil District Court, parish of Orleans. Houston, J.

      J. C. Egan, Attorney General, and J. P. Hornor and E. W. Baker for the Delators, Appellees:
    Hirst — In a proceeding under the “intrusion act,” where the last commission expressly declares the vacancy to have arisen from the removal of the prior appointee, the courts are powerless to go behind the appointments made and pass upon the propriety or legality of the action of the executive. 32 An. 934; 25 An. 396; 12 An. 719 ; 17 An. 161.
    Second — The Governor has power to remove inspectors of weights and measures, under section S929 R. S.
    Third — Section 3929 R. S., is not repealed by the Constitution of 1879. Nicholson & Thomp son, 5 Rob. 367.
    Hourth — Article 201 of the Constitution, regulating removals, does not apply to State officers appointed by the Governor, who are subject to removal, under existing laws, by the Governor.

      Spencer & White for Defendant and Appellant:
    The sole question presented in this case is: Has the Governor the power to create a vacancy in the office of Inspector of Weights and Measures for the parish of Orleans by removing the incumbent ?
    We maintain that under the Constitution of 1879 the Governor has not that power.
    Hirst — The office of Inspector of Weights and Measures is a parish office.
    Act No. 297 of 1855, creating the office, now incorporated in the Revised Statutes as sections 3912 etseqdirects the appointment of four Inspectors for tlmparish of Orleans and one for each of the other parishes. It limits the performance of their functions to the parish within and for which they are appointed. His acts have no validity beyond the parish limits. His functions are in the nature of “police functions,” like road overseers, overseers of the poor, etc. (Sec. 3914-15.) The stamp of the Inspector of one parish will not legalize the use of a weight or measure in another parish. His functions are purely local, and of the most subordinate character.
    In some sense, every conceivable officer is a State officer; that is, they all hold their places by authority of the State and perform functions created directly or indirectly by the State and relative to the government of the State. Thus, justices of the peace, constables, police jurors, clerks, sheriffs and all other local officers are in this sense State officers— as much State offioers asare Inspectors of Weights and Measures. They all, and each of them, perform functions prescribed by the State, and are all commissioned, and many of them appointed, by the Governor.
    It is no test of the character of an officer, that he is appointed or commissioned by the Governor. This would make State offioers of all police jurors, and all clerks, sheriffs, justices of the peace, etc. — for the first are, by Act 37 of 1880, all appointed by the Governor, and the others have at different times been also appointed by him, and even now may he under certain conditions. Thus if a sheriff, or clerk, or justice of the peace, die, or resign, or be removed, the Governor appoints to the vacancy. Can it be possible that these officers are in such case converted and changed from parish into State officers by the mere fact of the ' Governor appointing them ? Who will say that a police juror is a State officer ? Yet h$ is appointed and commissioned by tbe Governor. If yon look to the functions performed by him, they are of the most public and important character, involving the exercise, by delegation, of the sovereign power of taxation, while the Inspector simply polices and verifies the correctness of the weights and measures of his parish. It would be impossible to designate any officer whose functions were more purely local. If his is not a parish office, then there are none such, and those words in the Constitution and laws mean nothing.
    Second — If he is a parish officer, the Constitution provides the mode of his removal (Art. 201), and that mode is exclusive.
    It is elementary that where the Constitution has provided a mode or modes of removing an officer, no other can be adopted by the Legislature. "Why cannot the Legislature provide for removal of your Honors by trial before a commission, or by act of the Governor! ' Simply because the Constitution has provided the mode of removing you, as it has for the removal of the other executive and judicial officers — those modes are, impeachment or address for some, and trial by court, or address for others.
    Art. 201 of the Constitution provides a special mode of removal for “ all parish, municipal and ward officers," to wit: by -judgment of the District Court.
    Ho other mode can be adopted, and all laws providing other modes are necessarily abrogated and repealed. Cooley Con. Lim. pp. 63, 64 and 88. Also, 31 An. 443-4.
    Third — But if these propositions are not true, the law creating the office of Inspector of Weights and Measures does not confer on the Governor the power of removal. Section 3919 gives him the power to fill “vacancy by death or resignation."
    The only power of removal by the Governor, provided for in that act, is given by Sec. 3924, which says that the Inspector may employ assistance when necessary at his own expense, “but shall not commit their functions to a substitute without being subject to dismissal by the Governor.”
    The power of removal given by this statute is not general, but exceptional, and therefore the Court cannot presume its existence. This would be to reverse every rule of legal interpretation.
    It was incumbent on relator to show affirmatively that the exception existed which vested the Governor with power to remove.
    It is, therefore, manifest that the Court erred in refusing the defendant permission to prove that he had not committed his functions to a substitute, and, therefore, could not be removed. See Bill of Exceptions in note of evidence.
   The opinion of the Court was delivered by

Fenner, J.

Kelators allege that Wm. Martin was appointed by the ■Governor of the State inspector of weights and measures for the first district of New Orleans, on the 26th of January, 1881, vice Vincent Lamantia, removed; that said Martin has been duly qualified and commissioned as such officer, in support of which he presents his commission certifying the above allegations; that notwithstanding his removal ,and the appointment of Martin, said Lamantia refuses to surrender the said office and continues to usurp and intrude into the same, and unlawfully to execute the functions thereof. The relief granted by the intrusion into office ” act is prayed for.

Lamantia, in defence, presents a commission from the preceding Governor of the State, under which he avers that he is the lawful incumbent of the office; denies the power of the Governor to appoint thereto without the concurrence of the Senate; denies the power of the Governor to remove for cause or otherwise; and denies that any cause for removal existed.

The questions for examination present themselves logically in the following order:

I.

The power of the Governor to'appoint without the concurring action of the Senate depends upon his powers to remove. It is settled, and, indeed, not disputed, that the Governor has power to fill vacancies occurring by death, resignation or removal, during the interim between the sessions of the General Assembly, subject to confirmation by the Senate when it meets. State vs. Rareshide et al., 32 An. 934.

II.

Under the law creating the office in controversy, the Governor had the right to dismiss or remove incumbents for a certain cause therein specified. E. S. Sec. 3924. If that law remains in force, the power still exists.

Unless inconsistent with the Constitution of 1879, the law does remain in force. Const. Art. 258.

Defendant contends that the law is inconsistent with Article 201 of the present Constitution, and is, therefore, repealed.

Art. 201 provides a special mode of removal for certain officers therein named, and tor “ all other parish, municipal and ward officers.” The office here in controversey is not named, and the only question is whether it is a “ parish or municipal office.”

The State is the fountain of government, from which all powers of government are derived. These powers are exercised through the agency of officers. For convenience and efficiency of administration,'the State has created certain political corporations known as cities, towns and parishes, to which it has delegated certain powers of government. In the case of cities and towns these powers are generally defined in their charters or acts of incorporation. In the ease of parishes, they are prescribed by general or special statutes of the State relative thereto.

These subordinate corporations, like the State itself, necessarily exercise the functions confided to them, through officers, whose duties, powers, mode of appointment and tenure of office are regulated by law. In a strict and proper sense, a parish or municipal officer is an officer of a parish or municipality, representing the parish or city, exercising powers belonging to the city or parish, and binding them by his acts within the scope of his authority.

This precise view was taken by the Supreme Court of the United States. See Sheboygan Co. vs. Parker, 3 Wall. 93.

In that case, the Constitution of Wisconsin ordained that “ all county officers shall be elected by the electors of the respective counties.” By a special law the legislature constituted a board of commissioners named in the act to represent the county in borrowing money and issuing bonds therefor, in accordance with its provisions. The county contested the bonds, on the ground that the law granting these powers to these commissioners was unconstitutional, because creating “ county officers ” not elected by the people. The Supreme Court said: “ Such persons, in the performance of their special duty, are in no proper sense ‘ county officers.’ They do not exercise any of the political functions of county officers, such as levying taxes, etc. * * An officer of the county is one by whom, the county performs its usual political functions, its functions of government.”

Looking to the charter and amendments thereto of the City of New Orleans, and to the laws regulating the powers of parishes, we do not find that the power of regulating and inspecting weights and measures, and to require persons to comply with such regulations, and to impose fines and penalties for non-compliance, and exacting fees for inspection, was ever conferred upon any city ■ or parish. These' were powers of government reserved to the State, capable of being exercised by the State alone, and actually exercised by herself directly, through officers appointed by the Governor, representing the State exclusively and accountable to the State only.

It is difficult to conceive upon what principle such an officer can be called a “ parish or municipal officer.”

In the case of Wilson vs. Wiltz, 32 An. 688, we had occasion to express our views on the question, whether a public administrator was a State or a parish officer, and in holding him' to be the former, we said: “ He holds his office directly from the State under appointment by the Governor of the State, and gives bond in favor of the State. His functions are regulated exclusively by the general laws of the State. He derives no power, directly or indirectly, from the parish or from the people thereof. He has no connection of any kind with the parish or municipal government, and exercises no functions having reference to such government or any connection whatever with parochial or municipal officers. Although he may only administer upon successions lawfully opened in the City of New Orleans, his authority over property belonging to successions as co-extensive with the limits of the State; and, quoad such property, he may perform the functions of his office in any parish of the State.”

With the exception of the last paragraph, the tests here stated are fully applicable to the office now in question. The circumstance last mentioned-was an accidental characteristic of the office then referred to, mentioned to enforce the position; but it is not an essential test, as is apparent from the fact that a Judge of the Civil District Court of this parish, though he cannot exercise his functions outside of the parish, is, without dispute, a State officer.

The contention that, because the law creating inspectors, require» the standard set of weights and measures to be provided at the expense of the City of New Orleans, and of the various parishes, and because the city authorities are authorized to pass regulations relative to the police of weights and measures for the purpose of aiding in the execution of the law, the nature of the office is in any manner, affected thereby, has no force. These provisions are similar to the one requiring parishes to provide court-houses for the State judiciary, and to those general police powers which are granted to aid in the execution of the general laws of the State.

We are constrained to conclude that the office here in question can, in no possible sense, be considered as a parish or municipal office.

III.

It is next contended that, as the power of the Governor to dismiss or remove is limited to dismissal for a special cause stated in the act, it was the duty of the Court in this ease to inquire, whether or not, the specified cause existed in the present case, as a basis for the Governor’s action, and that the lower court erred in refusing to receive evidence on this point.

In the case of the State vs. Rareshide, 32 An. 934, speaking with regard to this very law, we said: “ Had the defendants or any of them * * *’ been removed, and the commissions of the last appointees expressly declared the vacancy or vacancies arising from such cause, and the filling of the same, we would- have been powerless to go behind the appointments and pass upon the propriety or legality of the action of the executive.” This was, perhaps obiter in that case, and we have now given the maturest consideration to the question and have made a most exhaustive examination of authorities bearing thereon.

In the ease of State vs. Doherty, 25 An. 119, which with Dayries vs. Yoist, 25 An. 396, are the latest decisions of this court on the point, the dootrine is clearly laid down. The law provided that a tax collector “■ failing or refusing to do his duty, as prescribed in this act, shall be liable to dismissal from office by the Governor.” As in the present case, the relator presented a commission certifying his appointment, “vice T. Doherty removed.” In disposing of the question now under consideration, the Court said: " When the Governor removed the defendant and .appointed the relator, he decided that the defendant had failed or refused to do his duty, because it was in this contingency only that he had the right to remove him. However erroneous the decision of the Governor on that question may be, we do not think it can, under our system of government be examined by the Courts.

The legislature created the office; and the law provided that the Governor might make the appointment, and for a certain cause, remove the officer appointed by him.

Here the law invested the Governor with a discretionary power which could alone be exercised by him. The decision of all the Courts of the State could not compel him to make the removal. The removal of defendant for neglect of duty was the exercise of executive discretion. The grant of power to the executive to remove an officer for a certain cause implies authority to judge of the existence of that cause.

The power, vested exclusively in executive discretion, cannot be controlled in its exercise by any other branch of the government. ‘ The policy of our Constitution and laws has assigned to the different departments of the State government distinct and different duties, in the performance of which it is intended that they shall be entirely independent of each other, so that whatever power or duty is expressly given to or imposed upon the executive department is altogether free from the other branches of the government.’ Attorney General vs. Brown, 1 Wis. 522. To institute the inquiry as to the correctness of the cause for which the Governor removed the defendant, would be a direct attack upon the independence of. the executive, ‘anda usurpation of power subversive of the Constitution.’”

It is vain to deny that this doctrine, if sound and authoritative, covers and decides this case; and it is inconsistent with, and overrules the contrary, ill-considered and unreasoned suggestions contained in the decision of Dubuc vs. Voss, 19 An. 210.

The law provides that the inspectors “ may employ assistance when necessary, at their own expense, but shall not commit their functions to a substitue without being subject to dismissal from office by the Governor.” It is clear that the power here vested in the Governor necessarily involves the exercise of discretion. Whether or not the officer has “ committed his functions to a substitute ” is a question of fact involving evidence and requiring decision. It is also a question of construction, as to what constitutes the commission of his functions to a substitute, in the sense of the law, and as to where the line of division runs between the legitimate employment of assistance and the prohibited commission to a substitute. The solution of these questions of fact and legal construction are necessarily confided to the executive discretion. Had these questions been submitted to judicial determination, a Court might have decided them erroneously; nay, a corrupt Judge might have decided them in flagitious opposition to the plainest law and the clearest evidence; and yet the decision would have been absolutely binding upon the parties and all other departments of the government.

The law on the subject is well expounded by the Supreme Court of Texas; There can be no question of the power of the Governor to remove for the specified'causes. * * He did'remove the appellee and appoint the appellant as his successor. * * The law makes no provision for ascertaining the existence of the causes, or for revising the action of the Governor, by any other authority or tribunal. In thus conferring the power of removal, to be exercised by him, without the concurrence of any other authority to ascertain the existence of the causes by judicial inquiry or otherwise, and without giving any power of revising his decision, the law made him, necessarily, the sole judge of the existence of the causes, and his decision is, necessarily, final and irreversible. No principle is more firmly established, than that where a special and exclusive authority is delegated to any tribunal or officer of the Government, and no mode of revising his decision, by appeal or otherwise, is provided by law, his action is final and conclusive of the matter submitted to his decision. This principle applies to all officers and tribunals to whom, or to which, a special authority is delegated; and not less to' the Ohief Executive officer of the State, than to other officers and tribunals, constituted with a special and limited, but exclusive, authority.”

Keenan vs. Perry, 24 Tex. 253.

To same effect: People vs. Stout, 11 Abb. Pr. 17, 19th Id. 171.

Wright vs. Defrees, 8 Ind. 302.

Attorney General vs. Brown, 1 Wis. 522.

Judge Oooley treats this as settled doctrine. In discussing the power of courts to inquire into the motives of legislative action, he says: “ The reasons are the same here as those which preclude an inquiry into the motives of the Governor in the exercise of a discretion vested in him exclusively. He is responsible for his acts in such a case, not to the courts but to the people.”

Oooley, Const. L. p. 187.

It thus appears that the reasons underlying this doctrine, rise far above any considerations of private interest or of inj uries which may result to individuals from abuse of official discretion. They are founded in the elementary principles lying at the base of our system of Government, the most essential of which are the distribution of powers amongst co-ordinate departments and the preservation of the independence of each within its sphere.

The Governor had power to remove for a certain cause. He has removed. We are bound to assume that he removed for the cause specified, and in the proper exercise of Ms official discretion, over which we have no revisory power. He has the power to fill vacancies occasioned by removal, subject to confirmation by the Senate when it meets.

It is, therefore, ordered that the judgment appealed from be affirmed at appellant’s costs.


author: Wyly, J. Levy, J. Poché, J.

text:
    No. 6399.
    Mrs. Mary Murphy vs. Factors’ and Traders’ Insurance Company et al.
    On the Motion to Dismiss.
    It» is no good cause of complaint for tlie Appellant and no ground of dismissal, that three appeals taken by different parties in the same case, be embraced in one Transcript.
    Insufficient service of citation of appeal, not attributable to the Appellant, should not canse the dismissal of the appeal.
    On the Merits.
    Under the late bankrupt law-of the United States, the property of the bankrupt could legally be sold free of encumbrances, by order of the Federal Court, provided the mortgage creditors were properly notified to show cause why it should not be done.
    In default of such notice, the mortgages or privileges on the property were unaffected by the sale.
    Therefore, when the mortgage creditor, who was notified, bought the property at the sale ordered by the Court, his mortgage was extinguished by confusion, but he took the property subject to the mortgage of the creditor, who was not notified to show cause why the property should not he sold free of encumbrances.
    Suoh purchaser is a third possessor, not liable to a personal judgment on behalf of the mortgage creditor, but against whom the latter has an action of indemnification for the value of any part of the thing mortgaged, which has been deteriorated or taken away, if the property is not sufficient to satisfy the mortgage.
    The purchaser in suoh case, is not entitled to be reimbursed the taxes on the, property and other expenses paid by him, with priority over the mortgage creditor with the pact de non alienemdo. Under the pact, the vendee has no better right than the vendor, the original mortgagor.
    APPEAL from the Fifth District Court for the parish of Orleans. Oullom, J.

      J. D. Coleman for Plaintiff and Appellee.

      Gibson, Rail and Montgomery for the Insurance Company, Defendant and Appellant:
    On the Application for Rehearing.
    A note drawn to the order of the maker, and by him indorsed in blank, secured by act of mortgage, with the clause, “and to enure to the use and benefit of any and all future holder or holders” is transferred by delivery from hand to hand, and a transaction made in good faith with suoh holders concerning suoh note is binding and valid, possession protecting the sale, pledge or other disposition thereof. The possession of suoh paper carries the title with it to the holder. The possession and title are one and inseparable; 2 Wal. 110, Murray vs. Lardner, 20 An. 264; Doll vs. Rezitti, 26 An. 15; Griovanorich vs. Citizens’ Bank, 2 Parsons on Bills, 272, 279 ; 20 How. 843 5 22 How. 96; 18 An. 192; Jackel vs. Fried 20 An. 72; Wheeler vs. Maillot, 20 How. 343 ; Louque’s Digest, page 88.

      Singleton & Browne for Leeds & Co., Defendants and Appellants.
   On the Motion to Dismiss.

The opinion of the Oourt was delivered by

Wyly, J.

From the final judgment in this ease, signed on 3d July, 1876, three appeals were taken, viz: One by the Factors’ and Traders’ Insurance Company, one by C. J. Leeds & Co., and one by Percy Roberts, assignee — all parties to this litigation.

Plaintiff, appellee herein, moves to dismiss the appeals:

1st. On the ground that citations of the appeals were served on her attorney, and not on herself, she being a resident of New Orleans.

2d. Reserving the benefit of this objection, and without in any manner waiving it, she objects on the ground that Marshall J. Smith and other necessary parties have not been made parties to the appeal.

3d. That the three appeals are improperly embraced in the same transcript.

There can be no valid objection to the appeals herein being contained in the same transcript. Certainly the interest of plaintiff has not been impaired thereby. They are all for the settlement of this litigation. Marshall J. Smith, and E. E. Norton, assignee, have filed an appearance in this Court which, of course, makes them parties, if they are necessary parties. .

As to the objection that citations of the appeals were served on the attorney of plaintiff, and not on herself, we will remark that the record satisfies us that it was the fault of the sheriff and not of appellants, who, in their petitions for appeals, prayed that plaintiff be cited.

In the ease of the Widow and Heirs of Julien Seghers vs. Nevil Soule and Albert Gaillard, decided in January, 1876, and not yet reported, this Court said: “ Appellants were not bound to mention the names of the appellees in their petition for appeal. They prayed that plaintiffs (who are appellees) be cited. This was sufficient. It was the duty of the clerk to issue citations to all the plaintiffs mentioned in the petition, and it was the duty of the sheriff to serve the citations. No appeal should be dismissed unless the fault is attributed to the appellants.” See Act 45 of Extra Session, of 1870, section 11 ; 17 La. 515; 2 An. 769; 12 An. 332; 13 An. 259; 14 An. 698; 16 An. 303; 21 An. 669.

As appellants have caused plaintiff to be served with citations since this motion was filed, it will not be necessary to continue the case for service of citations.

The motion to dismiss is denied.

On the Merits.

The opinion of the Court was delivered by

Levy, J.

The plaintiff, Mrs. Mary Murphy, alleges in her petition, that she is the legal holder and owner, before maturity, of two promissory notes, each for $10,000, signed by Paul Cook and Justin Yairin, Jr., in solido, dated March 18th, 1870, payable one year after date to the order of said maker and by them endorsed, which notes bear eight per cent, per annum interest from maturity; two other notes of same date and maturity, each for the amount of $10,000, held by the Factors’ and Traders’ Insurance Company, together with those above described, were secured by a special mortgage of like date with said notes, executed by said Cook and Yairin, on certain lots and buildings thereon together with the machinery, fixtures, etc., situated in the City of New Orleans, and known as the Orleans Befinery; that, on the 21st of February, 1871, Cook and Yairin, individually and as members of the firm of Paul Cook & Co., were adjudged bankrupts by order of the United States District Court-of Louisiana; and in these proceedings in bankruptcy, Marshall J. Smith was chosen trustee by the creditors who participated in said proceedings and confirmed as such by said United States District Court; that said bankrupts surrendered, in bankruptcy, a part of their estate, the said property mortgaged as aforesaid, to secure the payment of said notes; that, on motion of said trustee, the said United States District Court ordered the sale of "said mortgaged property to be made at public auction, which was accordingly done on the 21st of December, 1872, and said property was, by the auctioneer, adjudicated to C. J. Leeds & Co., Lagan & Mackison, John Hennessey, T. A. Archer, as liquidator of .the firm of Marshall J. Smith & Co., and the Factors’ and Traders’ Insurance Company, and on the 20th of J une, 1873, by notarial act, said property was sold and conveyed to the Factors’ and Traders’ Insurance Company, said company thereby becoming sole owner thereof. She alleges that this sale was made subject to her mortgage as aforesaid, and the said company became liable to her in the full amount of said notes, held by her, with special mortgage on said property, and that she is entitled to have said property seized and sold to pay her said mortgage, interest and costs, together with five per cent, on the amount sued for as attorney’s fees, as stipulated in the act of mortgage. She avers that said mortgage act contained the pact de non alienand.o, and that by virtue of the proceedings and purchase by said Insurance Company the mortgage, to the extent of the interest held therein by the Factors’ and Traders’ Insurance Company to secure the payment of the two notes held by it, became extinguished by confusion, and that said mortgage has and is of full force and effect only to the extent of plaintiff’s interest therein, to secure the payment of the notes aforesaid, held by her, with interest, costs, attorney’s fees, etc. She further alleges that she was in no manner a party to the proceedings in bankruptcy, and that she had no knowledge of and took no part in any of the proceedings above recited, and cannot be affected or concluded thereby. She finally prayed that ■the Factors’ and Traders' Insurance Company, E. E. Norton, assignee in bankruptcy of Paul Cook & Co., and of Cook and Vairin and Marshall J. Smith, trustee of the creditors of the bankrupts, be cited to defend this suit, and that there be judgment in her favor and against the said defendants, in solido, for the aforesaid sum of twenty thousand dollars, with interest, attorney’s fees and costs as claimed, and decreeing that said mortgage on said property to the extent of the interest which the said Insurance Company may have had by virtue of its ownership of the two notes before mentioned, be declared to have been extinguished by confusion, and recognizing and enforcing plaintiff’s mortgage on said property, and that the same be sold to pay the debt due plaintiff.

E. E. Norton filed an exception of no cause of action as against him, which was sustained.

The Factors’ and Traders’ Insurance Company, in their answer, admit that the proceedings in bankruptcy were had as alleged in the petition, and that they were the holders and owners of the two notes of $10,000 each, and secured by mortgage on said property as set forth, which were concurrent with these held by plaintiff. They aver that, pursuant to an agreement of the creditors and the order of the U. S. District Court, the said mortgaged property was, on the 21st of December, 1872, offered for sale and adjudicated to Leeds &Co., Lagan & Mackison, John Hennessey, T. A. Archer and respondents, for $45,000; and that solely for the mutual accommodation of said parties, subsequently, on the 23d June, 1873, without any valuable consideration whatever, the title thereto was taken in the Factors’ and Traders’ Insurance Company, and it was agreed, by the adjudicatees, that said company should, for their joint account, discharge all costs, expenses, charges, taxes and other claims on said property. That the parties, to whom the property was adjudicated, were all either privilege or mortgage creditors, and in consideration of this they bid in the property, in default of a bid equal to the aggregate amount of their claims, and that the sole reason therefor, aside from mutual convenience, was the belief that, each party to the agreement was either a privilege or mortgage creditor or represented such; that all the privileges and mortgages upon the property were represented, and "that without this belief there was no motive for said agreement and none such would ever have been entered into. They specially aver that it was the belief of all parties to said agreement, adjudication and sale, that T. A. Archer held and represented the two notes of Mrs. Murphy now sued on, and that it was on her behalf alone that he became a party to said transactions.

They aver that they had reason to believe and did believe that said Archer did in reality act as the agent of Mrs. Murphy; that he made known to her the steps which were being taken in her behalf; that he frequently advised with her; that she had full knowledge of all that was being done and freely assented thereto, and that she was as fully bound as if she had been personally present acting for herself, and if this had not been the belief of defendants no such agreement would ever have been entered into. That said Archer is erroneously made to appear as liquidator, representing the firm of M. J. Smith & Co., which said firm never had been and was not at the time of sale either a privilege or mortgage creditor of Cook & Co., and therefore had no direct interest in said transactions. That the notes of plaintiff had been for a long time and were at the date of the transaction in possession of Marshall J. Smith & Co., the only qualified attorney in fact of Mrs. Murphy. That they dealt with Archer under the conviction that he was the duly authorized agent of plaintiff, and as she had full knowledge of his acts in the premises, and made no objection thereto, she should be bound thereby and be decreed to be the owner of her proportionate share of the said property. They further represent, that if the Court shall determine that said Archer was not the duly authorized agent of Mrs. Murphy, and she is not bound by his acts, then there was great and serious error of fact to their prejudice, as to the character or quality in which he was acting; that defendants acted from a mistaken belief as to his real capacity, and are entitled by reason of said error to a rescission of said adjudication and sale, or that, otherwise they will be made the innocent sufferers of irreparable injury and loss; that acting in the belief that all the privilege and mortgage creditors, Including the plaintiff, had been duly represented in said transactions, and were bound and concluded, and pursuant to the above mentioned agreement, they, for the benefit and advantage of all parties, did defray all the costs incident to said proceedings, and have since paid out large sums of money on said property for its care and preservation and/or taxes due to the State and city, amounting in the aggregate to $11,454 83, and that they are entitled to a privilege and preference upon said property over all other creditors, for said amount, with interest from 17th December, 1873, when said payments were made. They further aver that they are not the true and legal owners of all of said property, but that whilst the title is in their name, the real owners are themselves and their co-adjudicatees, and they should be called in to defend their interests. They deny that they are personally bound to plaintiff, but that any claim which she may establish, will attach solely to the property in question or its proceeds, and she can only look to these for its settlement. They call in warranty their co-adjudicatees. They pray that there be judgment recognizing said T. A. Archer as the agent of plaintiff in said sale and that she be bound thereby; that she be recognized as one of the co-owners of said property in her just proportion, subject to her proportion of the amounts paid by respondents for costs, taxes, etc., or that she have judgment only for her proportionate share of the net proceeds of the sale of said property, or if the Court shall determine that said Archer was not the agent of said plaintiff, that, by reason of said error of fact, the sale shall be rescinded and the property be held as it now stands merely for the purpose of selling it, to. the end that the proceeds arising therefrom may be distributed as follows : 1st, that defendants be reimbursed the sum of $11,454 83, expended by them for the benefit of all parties concerned. 2d, that the balance therefrom be distributed between the privileged and mortgage creditors according to their rank in the same manner as though the property had been regularly sold by virtue of proper legal proceedings by said parties against Paul Cook & Co., the original debtors, and that all the privileges and mortgages be recognized as in full power and effect. The co-adjudicatees, Lagan & Mackison, through Percy Roberts, assignee, John Hennessey, Leeds & Co. and T. A. Archer, called in warranty, also filed their answers, Archer averring that he was, either expressly or impliedly, authorized to represent and act for Mrs. Murphy in the transactions set forth in the petition and proceedings, and the others setting up their privileges and adopting the allegations of the answer of the Factors’ and Traders’ Insurance Company. Marshall J. Smith, trustee, also answered, denying any liability on his part, and denying that there was cause of action against him.

There was judgment in favor of plaintiff, decreeing the extinction by confusion of the mortgage securing the notes held by the Factors’ and Traders’ Insurance Co., recognizing the mortgage as securing plaintiff’s debt, decreeing that plaintiff recover of Factors’ and Traders’ Insurance Co. the amount of the notes with interest claimed, attorney’s fees at five per cent on the principal claimed and costs of suit, or, in default of such payment, that they deliver up all the mortgaged property to be sold to satisfy the judgment, rejecting the claims and demands set up by the company and the parties called in warranty by them, and dismissing the suit as against M. J. Smith, trustee, and E. E. Norton.

From this judgment all the parties defendant have appealed except Smith and Norton.

This full statement of the pleadings is necessary in order to comprehend fully the grounds of plaintiff’s action and defendant’s grounds of defence.

The questions for solution and decision are as follows :

1st. Was Mrs, Murphy represented in the matters of the bankrupt proceedings, the adjudication of the trustee’s sale and the subsequent sale to Factors’ and Traders’ Insurance Company and bound thereby ?

2d. Was the mortgage claim of the Factors’ and Traders’ Insuranee Company, arising out of the two mortgage notes of Paul Cook & Co. held by them, extinguished by confusion taking place on their purchase of the mortgaged property ?

3d. If Mrs. Murphy’s mortgage exists, is she entitled to personal judgment against the Factors’ and Traders’ Insurance Company for the amount of the notes held and owned by her with interest, costs and attorney’s fees, with the right to seize and sell the mortgaged property, and is said company bound to her, and can she execute her judgment against them for any balance due her on her notes, if the proceeds of sale of the property should not be sufficient to satisfy her judgment?

4th. Should the five per cent for attorney’s fees be allowed upon the principal and interest due on her two notes ?

We will decide this case exclusively on the record as it stood before the District Court, when the judgment appealed from was rendered, without prejudice to the rights, if any, which may have since accrued to the parties litigant.

1st. The evidence contained in the record fails to satisfy us that Mrs. Murphy was represented in the bankrupt proceedings as to Paul Cook & Co., the adjudication at the trustee’s sale, the subsequent sale to the Factors’ and Traders’ Insurance Company, or that she had notice of any o£ these matters. Without the fulfilment of these requirements or her subsequent ratification, she cannot be legally bound and her mortgage rights have not been destroyed or impaired.

Mrs. Murphy was certainly not personally notified of any of the proceedings in bankruptcy ; no written or special authority to Marshall J. Smith to represent her in these proceedings as a creditor of the bankrupts is to be found in the record, nor is there satisfactory proof to establish that such authority was granted by her to any one. On the contrary, her averments that she had no notice are not disproven— and the fact of notice to her should be affirmatively established by those claiming or asserting this fact.

The order of the U. S. District Court for the sale of the property free of all incumbrances, could not divest her mortgage rights or privileges without the notice contemplated and required by the bankrupt law. In Willard vs. Brigham, 25 A. 600, this Court held: “If the mortgagee is not made a party to the proceedings to sell the property free from all incumbrances, his rights will be unaffected by the sale.”

“ The application for a sale of property, free from incumbrances, must state what persons have liens, incumbrances or interests therein, and notice must be given to all persons having liens or incumbrances on the property.” Bump on Bankruptcy, 155.

In the case above cited from 25 An. 600, it was held as follows : “The important questions are; First, whether the United States Court, sitting in bankruptcy, had authority, under the bankrupt law of 1867, to order the sale of the property free of all incumbrances ? Second. If the Oourt had the authority, have the requirements of the law been observed so as to remove the special mortgage set up in this ease ? On the first point we find no difficulty. The Supreme Oourt of the United States have frequently held that the property of the bankrupt may be sold free of incumbrances by order of the bankrupt courts, and the same has been decided by this Oourt. In order, however, to sell property free of incumbrances, the assignee must apply to the bankrupt court for an order to that effect, and must set forth the facts that justify the order, that the judge may decide whether the application should be granted. As this proceeding specially affects the rights of the secured creditor, he must be properly notified and summoned to appear and protect his interests. This is done by passing an order to show cause and directing that a copy of such order and the petition be served upon him. Bump on Bankruptcy, 6th Ed., p. 151, and authorities there cited. In the case before us we do not find that Norsworthy was properly notified, or was legally made a party to the proceeding resulting in the order to sell the property in question frée of his prior mortgage. Not being a party to the proceedings, his rights are unaffected thereby. The property has passed out of the hands of the bankrupt court; it was therefore useless to cite the assignee.” This case having been taken to the Supreme Court of the United States on a writ of error, that tribunal affirmed the judgment of this Court, and in the opinion rendered by Justice Clifford, as the organ of the Court, he said : Such sales may be made without notice to the secured creditor, but if the assignee desires to sell the property free of incumbrances, he must obtain authority from the bankrupt court, and must see to it that all the creditors having liens on the property are duly notified, and that they have opportunity to adopt proper measures to protect their interests.” 23 Wallace, 128; King vs. Bowman, 24 An. 506; 10 Blatchford, 515; 20 Wallace, 201; 24 Howard, 205.

The record, as we have stated, disclosing no legal notification, or summons to Mrs. Murphy, a secured creditor, the decisions above cited fit most aptly this case and are controlling in their effect.

We are, therefore, led to the conclusion that Mrs. Murphy being no party to the proceedings whereby the order of sale was obtained, her rights were unaffected thereby. We next consider the effect of the adjudication, and then the subsequent sale to the Factors’ and Traders’ Insurance Company. At the trustee’s sale of the mortgaged property, it was adjudicated to the following persons (for the sum of $45,000, on the terms of one-third cash and the balance payable in one and two years, with eight per cent interest on the credit terms): the Factors’ and Traders’ Insurance Company, Messrs. Leeds & Co., Lagan & Mackison, John Hennessey, T. A. Archer, Liquidator of Marshall J. Smith & Co.; and about six months after the adjudication, by a notarial act and agreement, the above-mentioned adjudicatees relinquished all their rights, title and interest, in the property to their co-adjudicatee, the Factors’ and Traders’ Insurance Company, and the terms of the original sale were changed and in lieu thereof the terms were made cash. It will be perceived that in none of the proceedings and acts do.es the name or interest of Mrs. Murphy appear, nor is there the slightest reference to any of the parties as representing her as her agent or attorney in fact; and there is not to be found in the full and complete record any written document or authority from her to any person, consenting to any sale, agreeing that any sale should be made of the property, free of incumbrances, authorizing the purchase of the property for her or ratifying the adjudication, acknowledging or recognizing the adjudication to T. A. Archer as being for her or her benefit, consenting to the change of terms of sale or ratifying or assenting to the subsequent sale to the Factors’ and Traders’ Insurance Company, or in any manner connecting her with the acts of T. A. Archer, the Liquidator of M. J. Smith & Co. It is only necessary to assert the elementary principle that contracts for the acquisition or alienation of real estate must be in writing, and authority to an agent to acquire or dispose of such property must be originally in writing or subsequently ratified in writing. There is not only no such instrument in writing, but in none of the proceedings or even authentic acts, is it alleged or stated, or are any expressions whatever used, which tend to disclose the creation or existence of any agent representing Mrs. Murphy in the bankrupt proceedings, the adjudication, or the transfer to the Insurance Companv. Whatever may have been the individual belief of any of these parties in regard to the participation of Mrs. Murphy in these transactions or her assent or ratification thereof through the agency of Smith or Archer, there seems to have been a marked and apparently studious abstinence from the use of any expression identifying her with the acts of these persons, and nothing in all the solemn acts which in the remotest degree connect her therewith. After the most patient and careful investigation of the record, the most patient consideration of the arguments contained in the able and elaborate briefs filed, we are unable to discover anything which binds Mrs. Murphy, as a co-owner of the property conveyed to the Factors’ and Traders’ Insurance Company, or which can limit her rights under her mortgage to a pro-rata participation in the proceeds of the sale of the property. The mistaken belief and error of fact which the Insurance Company alleges it has fallen into, cannot be visited upon the plaintiff, and while not legal, it would surely be unjust to sacrifice her rights and. make her a vicarious expiator of the mistakes of the company. Mere considerations of equity may be invoked where the law is silent or its construction obscure or doubtful, but where the plain letter and spirit and reason of the law stand forth in bold relief, courts cannot close their ears to its imperative mandates or blind their eyes to its plain teachings. We think 1 he grounds for setting aside the adjudication and sale by reason of the alleged error of fact, are not sufficient in this case to justify such action on our part. C. C. Arts. 1826,1847,1823, 1836 ; 22 An. 14.

. Having disposed of the first question and its several branches the others require no lengthy discussion.

When the adjudication was made to the Insurance Company and its co-adjudicatees, it carried the property free of the incumbrances in favor of all the parties who had assented to the sale or had been properly or duly notified of the proceedings which provoked it, and burdened with- the incumbrance in favor of the plaintiff. Extinguishment, by confusion, of the mortgage and privileges in favor of the adjudicatees, took place at once, and the Factors’ and Traders’ Insurance Company, to whom the sale was subsequently made by agreement among the adjudicatees, holds the property subject to and affected by the mortgage rights of the plaintiff, Mrs. Murphy. 2 R. 201; 2 An. 114; 28 An. 845.

We do not think that the plaintiff is entitled to a personal judgment against the Insurance Company, but her rights are limited as hereinafter prescribed to the mortgaged property, on which she may enforce her judgment in satisfaction of her mortgage notes. We have before stated that the property was sold subject to the mortgage in favor of the plaintiff; to that she must be confined. 4 L. 451.

The record discloses that, after the adjudication and the sale to the Factors’ and Traders’ Insurance Company, the company sold the machinery, fixtures, etc., which had been specially mortgaged. When the company acquired this property it came to them burdened with the mortgage in favor of the plaintiff, and they held it and all of it, as third possessors, subject to that mortgage. It is clear to us, therefore, that this company is, under article 34U7 of our Civil Code, to the extent hereafter stated, liable to the plaintiff on account of the mortgaged property disposed of by it. “ The deteriorations, which proceed from the deed or neglect of the third possessor to the prejudice of the creditors who have a privilege or mortgage, give rise against the former to an action of indemnification.” Code Napoleon, 2175.

“ A third possessor may make any change he pleases in buildings on the property, but if he diminish its value thereby, he will be responsible to the mortgagee.” 5 N. S. 187; 6 N. 8.114; 2 An. 365; 19 L. 478.

The machinery and fixtures were part of the mortgaged property immovable by destination, and the mortgage with the pact de non alienando- contained therein rested upon all the property, and the third possessor held it with full knowledge of and subject to the incumbrances which burdened it, and if the property remaining has been deteriorated by his deed, he is liable in an action of indemnification, and in this case the right to proceed by such action must be reserved to the mortgage creditor.

We are of opinion that the company is not entitled to have the amount claimed for taxes, expenses, etc., paid by it, constitute a charge upon the property with priority over or even concurrent with plaintiff’s claim. “ A purchaser of property subject to a mortgage containing the clause de non alienando and duly registered, cannot claim to be in any better condition' than his vendor, nor plead any exception the latter could not.” 2 N. S. 32; 19 L. 29; 13 L. 315; 2 B. 378; 6 B. 58; 30 An. 800; Bump on Bankruptcy, 320.

It is not necessary to enter into a discussion as to the validity of the alleged privileged claims of Leeds & Co. and others. It suffices to state that, if they had privileges they have been extinguished by their own acts and by their acquisition, together with their co-adjudicatee, of the property on which they might have operated. As owners they cannot at the same time be mortgagees and privileged creditors as to their own property. The appellee in her supplemental answer to this appeal, asks for an amendment of the judgment of the lower court, which only allows five per cent, attorney’s fees on the principal of the mortgage notes. She is entitled to five per cent, attorney’s fees on the amount of the debt, principal and interest until payment, the interest is a part of the debt, and this percentage should be allowed and recognized as being secured by the mortgage.

We perceive no error in the rulings of the court a qua on these points, to which the defendants have taken their bills of exception, to-wit: that agency to sell immovable property cannot be proved by parol •evidence, nor should such evidence be admitted to contradict the written act of sale in this case.

It is, therefore, ordered, adjudged and decreed that the judgment of the Fifth District Court for the parish of Orleans, in this case, be •amended by allowing five per cent, as attorney’s fees on the amount of the two notes held by plaintiff, principal and legal interest thereon from the maturity thereof until paid; and that said judgment be further amended by limiting the same to the enforcement of the mortgage by seizure and sale of the mortgagéd property to satisfy said judgment, and that the right be reserved to plaintiff, in the event that the mortgage property shall not sell for an amount sufficient to satisfy said judgment, to proceed in an action of indemnification against the defendant, the Factors’ and Traders’ Insurance Company, for the recovery of the balance which may be due on said judgment, to the extent of the value of the mortgaged property removed and disposed of by the said defendant, and that the judgment of said lower court is in all other respects affirmed at appellees’ costs.

On Application nor Behearing.

The opinion of the Court was delivered by

Poché, J.

Defendant’s counsel, in two able and exhaustive briefs, strenuously urge upon us the reversal of our decree in this case, and glowingly picture the great hardships inflicted on their clients by the judgment rendered.

We have carefully perused a second time the voluminous evidence in the record, and we have failed to find any testimony showing conclusively that Mrs. Murphy was legally represented in the matters of the bankruptcy proceedings, the adjudication a't the trustees’ sale and the subsequent sale to the Factors’ and Traders’ Insurance Company, and that, therefore, she was bound by any of these transactions.

But in their briefs for rehearing, defendants’ counsel press the following proposition which they support with great force and cogent reasoning: That the Murphy notes being endorsed in blank, and being secured by mortgage to enure to the benefit' of any and all future holders of the said notes, and being in the possession of Marshall J. Smith & Co. during all these transactions, are facts which justified third parties in treating with the holders of the notes, to consider them as owners thereof. And hence they conclude that for the purposes of the issue in this case, it is a matter of indifference whether Marshall J. Smith & Co-were the agents of others dr not in various transactions referred to.

It is evident that in their zeal for argument counsel have entirely lost sight of their pleadings by which, at least, they must be bound.

Their answer rests exclusively upon the alleged theory that Mrs. Murphy was bound by the acts of Marshall J. Smith .& Co., her duly authorized agents and attorneys in fact, having, as such, the exclusive possession, management and control of her said mortgage notes, and stipulating in her behalf in all the transactions covered in the issues of this case. All the testimony which they offered and introduced on that point, was intended for the sole purpose of establishing the agency of Marshall J. Smith & Co. touching the two notes, which were through the pleadings and throughout the trial recognized and treated as the property of Mrs. Murphy.

We transcribe from their answer the following averment out of many similar allegations on this point:

“ Defendants aver that the two notes of plaintiff herein were and had been in the possession of Marshall J. Smith & Co., or of Marshall J. Smith individually, who had been for a long time, and was at the date of these transactions, the only qualified attorney in. fact oí Mrs. Murphy.”

Under such an allegation defendants could not have been allowed to show by evidence that the notes bad been treated as the property oí Marshall J. Smith & Co., and much less can they now be tolerated in their attempt to shift their position in the last engagement of this protracted conflict.

We find no error in our decree, and the application for rehearing must be denied.


author: Bermudez, C. J.

text:
    No. 7999.
    Successions of J. B. Hood and Wife.
    It is discretionary with the judge of the Probate Court, on the application of the administrator of a succession, to cause the property ordered tobe sold to pay debts, to be re-examined and re-appraised by the experts.
    This re-appraisement can be made at any time before the sale.
    It is only when the creditors demand it, that the property of a succession must be sold fbr cash. In the absence of such demand from the creditors, it is legal and proper for the Gourt to order the sale to be made partly for cash and partly on credit.
    "When property of a succession is sold to pay debts, on the application of the administrator, whether there are minor heirs or not, the adjudication can legally be made at the two-thirds of the appaisement.
    It is only when the creditors demand the sale under Article 990, C. P., that the full appraise-must must be reached.
    APPEAL from the Second District Court, parish of Orleans. Kssoi, J.

      Joseph P. Rornor and Francis W Baker for the Purchaser, Appellant:
    First — Property of a succession soid, even to pay debts, must, at the first offering, bring the appraised value in the inventory.
    Second — Property oí a succession, sold on the application oí the administrator, should be offered for cash at tho first offering, and if it does not bring the appraised value in the inventory, must be re-offered, in accordance with O. P. Art. 990, on twelve months’ credit.
    Third — A sale of succession property to pay debts, made at the instance of the administrator, cannot he made on credit, even with the consent of Creditors, particularly when it does not appear that all the creditors of the succession have consented.
    Fourth — There is no law authorizing the re-appraisement of succession property before a sale, except that in case of a sale to wind up a vacant succession, uuder C. C. Arts. 1169 and 1170.
    Fifth — The validity of the title to real estate sold at succession sale does not dependgupon the opinions of witnesses as to the actual value of the property on the day of the sale.

      Gibson, Hall & Montgomery for the Administrator, Appellee:
    Urst — Property of a succession sold to pay debts need not bring more than- it is worth, as evidenced by an appraisement of competent persons, made before the sale.
    Second — An appraisement of succession property made by order of court, after the order of sale has been granted, and before the sale, is a good appraisement to fix the value of the property, and binding upon a purchaser at such sale, so far as the amount it must bring under the law.
    Third — The requirement of the law relative to appraisement and sales of succession property, is to have it sold under an appraisement made before the sale that conclusively fixes the value of the property at the sale.
    Pourth — Succession property sold to pay debts may be sold for part cash and balance on terms of credit when such a sale is clearly in the interest of the succession and the creditors, and to get the highest price and is agreed to by them before the sale.
    3?ifth — The excessive valuation of property made in an inventory cannot prevent At 'appraisement before the sale at what it is worth, when such fact is clearly proved.
   The opinion of the Court was delivered by

Bermudez, C. J.

On the application of the administrator of these successions, the only piece of real estate belonging thereto was ordered to be sold.

It was mortgaged to secure $23,200. It had been appraised in the inventory at $15,000. Two days before the sale it was ordered to be reappraised, and it was valued at $12,000. With the consent of the mortgage creditors, who had pressed payment, it was ordered to be sold pare cash, part on credit. On the day of sale it was bid off to the highest and last bidder for $12,500; but the adjudicatee refused to accept the title. The deceased left minor children.

From a judgment ordering compliance with the sale, the adjudicatee has appealed.

The question presented for solution is:

Can the immovable property of a succession, in which minors ara interested, and which is ordered to be sold to pay debts at the instance of the administrator, be adjudicated at the first offering for less than the appraisement in the inventory, and on any other terms than cash ?

The question has long ago, and quite frequently since, been decided in the affirmative, the minors, who are beneficiary heirs, being considered as having a mere residuary interest. This has been held not only in eases in which the property was ordered to be sold on the demand of an administrator, but also of a tutor administering a doubtfully solvent succession. 7 L. 312; 8 L. 412; 5 B. 96; 10 R. 396, 457; 11 R. 508; 2 An. 966; 4 An. 578; 9 An. 107; 13 An. 383; 15 An. 641; 16 An. 420; 28 An. 175, 269.

In the first of the two last cases in 28 An., the jurisprudence on the subject had been emphatically announced as settled, although there was delivered a dissenting opinion on the occasion. But for the hypothetical ruling at first made in 29 An. 505, and next in 31 An. 414, particularly in the last case which was discussed, the question would not presently admit of the slightest doubt.

In the first of those cases, decided in June, 1877, at Opelousas, the Court well held that a sale of succession property to pay debts could not be made for less than two-thirds of the appraisement, but added that sales made for less than the appraised value will not be disturbed, if there be proof that the price at which it was adjudicated is its actual value, thus hypothetically sanctioning a sale at less than the appraisement.

•In another case, decided shortly .after, in the same volume, p. 536, as it were with a view to dispel the cloud apparently thus cast, the same Court, Spencer, J., said:

“We are aware that this Court has held that the sale of minors’ property to pay the ancestors’ debts, may, under certain circumstances, be made for less than its appraisement; but we think the property in those cases was rather that of a succession than that of a minor, and that the law, as laid down in articles 990,991,992 of the Code of Practice, governing sales of succession property, received a most liberal interpretation in the cases where this Court so held.”

“While upon the doctrine of stare decisis, we would be loth to depart from the rule that succession property sold to pay debts may, on first offering, be sold for less than its appraisement, we are not disposed to extend the rule to property belonging exclusively to minors. We prefer to adhere to the letter of the law, that it cannot be legally sold for less than the appraisement.” C. C. 342, et seq.

The most recent expression of the judicial mind on the subject was delivered in Tabary, 31 An. 411. The Court there distinctly said:

“At the pages of the Code to which we refer, what do we read? That, when sold for cash, the property of vacant estates, of all successions accepted with benefit of inventory, whether the heirs are minors or of age, and of all successions under administration, cannot, at the first offering, be sold for less than its appraised value; that, unless that value be bid and obtained, the property must be readvertised for sale and then sold on credit for what it will bring.”

The articles referred to are 990, 991, 992, 995 C. P.

It is worthy of note, that article R. C. C. 1170, relative to the sale of the property of a vacant succession, directs the judge to cause it “ to be estimated by experts, by him appointed and sworn, and if at the sale, two-thirds of the estimated value be not offered for it, the sale shall be suspended and the curator is bound to have it again exposed after the same time of notice,” &e., “ but then, the property must be sold at the price offered.” ’

It is. likewise to be borne in mind, that article 995 of the C. P., expressly provides, that what is said in the section in which it is found “ only applies where such estates are administered by curators, or .other persons appointed by a court, or by testamentary executors.”

. It is to be regretted that a principle which appeared to be deeply imbedded in our jurisprudence, and which had become a rule of practice and of property, was thus shaken, and that a question which had been considered forever set at rest, was thus again agitated.

After a thorough examination of all the authorities on the subject, we find that the question has been unnecessarily complicated, to the mistification of both Bench and Bar, by amalgamating with it the interest of mjnors concerned in the succession, and other considerations, which appear to us to have no affinity to it.

The error committed consists in the double fallacious assumption, that minors have greater rights than major heirs, in the settlement of an estate, and that the articles of the Code of Practice (990-2-5) have a general purpose, and therefore must receive an inflexible application to all cases of sales of succession real estate.

Minors' are invariably beneficiary heirs. Majors are, at their option, either beneficiary or unconditional heirs. In either case, when the succession is in the hands and under the control of an executor or of an administrator, and is in process of liquidation, the interest of the heirs, minors or majors, being merely contingent, deducto cere alieno, neither must be consulted, or heard, before an application is made by the succession representative, as an essential condition precedent, for the validity of an order of sale to pay debts. They are notified of it by the public advertisements during thirty days. 24 An. 530; 15 An. 675; 19 An. 528; 18 An. 496; 28 An. 269; 2 An. 966. If the order have been improperly granted, or if the heirs wish to prevent the sale, by tendering the amount required for the payment of the debts or the discharge of the legacies, if there be any, they are not left without adequate remedy. 23 An. 309, 633; 24 An. 530. On a proper showing they, or creditors, would be entitled, either to have the terms of sale changed or the sale itself arrested. What that showing should be, necessarily will have to depend upon contingencies. If the sale be riot arrested or the terms modified, and it take place, it will be treated as ratified by the implied consent of both creditors and heirs, and title will pass to the adjudicates, who is not bound to look for protection beyond the decree of a court of competent jurisdiction, and may safely comply with the terms of adjudication.

It is an indisputable proposition that the law allows that which it does not forbid.

The clear right of a creditor, whose claim is liquidated by a judgment, is to subject the property of his debtor, when any is found, to the satisfaction of Ms debt. His remedy to that end varies according to circumstances.

If the debtor live, the creditor, if he hold a judgment contradictorily obtained, or has a claim secured by an authentic mortgage, may issue a Ji. fa. against all and levy on any of the property of his debtor,'or executory process against the real estate specially affected, and have it sold at the first offering at two-thirds or more of its appraisement, or without appraisement, where the same is duly waived.

If the debtor have died, the creditor, if his claim be liquidated by judgment, or acknowledged, can insist upon a sale being ordered, in the mortuary proceeding. In such a base, the law requires that the appraisement be reached, and if it be not, that the property be afterwards ¡sold at any price at twelve months’ credit to the highest and last bidder.

If the creditor, however, be one whose claim is secured by mortgage, he has two remedies. It is optional with him, either to insist for an order of sale in the mortuaria, or to proceed via executiva in different and distinct proceedings. In the former case, the property could not be sold for less than the appraisement at the first offering. 5 R. 96; 10 R. 457; 3 An. 607; 10 An. 238. In the latter case, he would be entitled to have the property sold at the first offering at two-thirds or more of the appraisement and, in both instances, if there were no adjudication at the first crying, he could have it subsequently sold for any price at twelve months’ credit., 12 An. 69; 19 An. 528.

But now, if the creditor does not insist on an order of sale in the mortuaria, or does not proceed via executiva, being a mortgage creditor, and the administrator is prevailed upon, or considers that the creditors should be paid, he may, as the representative of all the creditors, ut universi, as their mouth-piece, speak in the name of all, and apply for a sale of sufficient property to pay them. In such a case, there is no law that requires that the property should bring the inventory appraisement.

In the absence of any express provision of law on the subject, the case being one of expropriation of the legal successors of the deceased debtor to pay his debts or those of his succession, the court must be guided by laws in pari materia, which are alike in instances in which writs are issued and in which an order is made for the sale of the property of insolvents, or of vacant estates, that is, at two-thirds of the appraisement. R. O. C. 21, 2184,1170; C. P. 995.

Article 1167 R. C. C. is to the effect that the sale in the case of a vacant succession can be made to the last and highest bidder and does not impose any lower limit for an adjudication.

■ Article 1170, in the instance stated, fixes that limit at two-thirds of the appraisement.

Article 2184 provides that all sales of property ceded to creditors must be made at the same terms and under the same formalities that property seized on execution is sold.

Article 680 C. P. authorizes an adjudication if the price offered by the highest and last bidder reach or exceed two-thirds of the appraise-, ment.

Article 995 C. P. assimilates all succession sales, whether the estates are administered by curators or other persons appointed by a court, or by testamentary executors.

In Carter vs. McManus, 15 An. 642, the Court well said through Mr. Justice Land as its organ:

“ It has been repeatedly held, that the rules which regulate the sale of the property of minors, do not apply to sales of succession property made at the instance of administrators for the payment of debts. And, as a consequence of this ruling, it has been held, that the sale of succession property for the payment of debts may be made for less than the appraised value in the inventory. And, as a further consequence of the same ruling, such sales must be held valid and binding upon minor heirs as well as upon heirs of full age; for, in estates accepted with the benefit of inventory, no law requires that the property shall produce its appraised value, nor that a reappraisement be made in case the first estimation shall not be obtained.” See authorities quoted.

In the succession of Weber, 16 An. 420, the Court, Mr. Justice Yoorhies delivering the opinion, said:

" The payment of the debts must be effected without regard to the appraisement, when-the sale is ordered at the instance of the administrator; but, if ordered at the instance of the creditors, then recourse must be had to articles 990, 991 and 992 of the Code of Practice.”

See, also, 2 An. 968; 19 An. 528; 28 An. 175, 269; 13 An. 383; 9 An. 107.

We think that those opinions are a sound exposition of the doctrine on the subject, and as the ruling in 31 An. 414 is solitary and cannot be considered as representing previous adjudications, which were, in 29 An. 536, formally recognized as stare decisis, it should not be invoked as authority on the question there decided in other similar cases. 13 L. 445; 6 R. 225; 11 R. 302; 13 An. 345.

The reason for which the law requires (.0. P. 999-2) that property ordered to be sold, at the demand of a creditor, shall not be adjudicated for less than the appraisement, is that it will not permit one or a few to force a sale and have the property sold for less than the appraisement, possibly sacrificed, when all others concerned remaining silent, apparently consent by their tacit acquiescence, that matters continue in statu quo until they otherwise determine.

But the adjudication in the present case, not only exceeds the two-thirds of the inventory appraisement, but also the evaluation ordered and made shortly before the sale.

It was discretionary with the District Judge, on the application of the administrator, to cause the property ordered to be sold to be re-examined and reappraised, as it may well be that the property may have been appraised too high at first, or shrunk from the original evaluation put upon it. The report of the experts appraising it at $12,000 is indicative of that hypothesis.

The objection that the order to value again was made two days before the sale, is unwholesome. A judicial sale to pay debts has for its objects a forced expropriation. Had the mortgage creditors proceeded via executivá as they might have done, the property securing their claim could have been appraised, as is usual, shortly before, possibly on the very day of sale. The appraisement is intended as a guide for the officer or succession representative making the sale. It is sufficient if it be made in time for the sale. 2 An. 206.

We hear no complaint from any creditor or heir in this case. The mortgage creditors, who could have required the sale for cash, have consented to its being made on terms, deeming it to their advantage.

It is only where the creditors require, when they demand a sale, that it be made for cash, that the court must so order. As a rule, it is preferable, where no objection is made, that the sale be ordered on more advantageous terms. The practice has been to ask, and the courts have sanctioned sales, part cash part on credit, the notes after-wards to be reduced to cash with proper authority. 2 An. 966; 19 An. 355; 15 An. 264.

Had the property in question brought the inventory appraisement, the surplus over the'adjudication actually made and under consideration Would have wholly enured to and been completely absorbed by the mortgage creditors.

We take the rule to be, that the property left by deceased persons, when ordered to be sold to pay debts on the application of a succession representative, executor, administrator, or other, in any succession, legal, testamentary, or irregular, vacant or not, accepted with benefit of inventory or unconditionally, whether the heirs be of age or minors, or both, present or absent, or both, can be legally sold for less than the appraisement thereof, but not for less than two-thirds thereof at the first offering; and that the only case, in which the law requires that the appraisement be reached, is when one or more creditors require a sale under the provisions of articles O. P. 990-2.

We have taken much pain to review the whole subjeet. We have given it our full and diligent attention, and after a patient and thorough investigation and mature deliberation, we have come to the conclusions which we have expressed. We trust that the question will now be con-, sidered at rest, and that no title will be questioned when the same has been obtained in the cases within the purview of this opinion, which far from upsetting, may quiet such titles.

We And no error in the judgment appealed from. It is, therefore, affirmed with' costs.


text:
    No. 8175.
    Board of Liquidators of Hart & Hérert vs. J. W. Bates, Sheriff, et al.
    An extrajudicial surrender of his property, made by a debtor to his creditors, especially when some of the latter refuse to accept it, does not divest him of the title to that property,* and the creditors who declined the surrender have the right to sue the debtor and seize and sell his property, notwithstanding the extrajudicial surrender.
    APPEAL from the Seventeenth Judicial District Court, parish of East Baton Rouge. Sherburne, J.

      Sam’l P. Qreves and H. M. Pavrot for Plaintiffs and Appellants :
    I. There was no seizure of the property.
    First — Because no actual possession was taken by the sheriff. L. D. p. 279-6 A. Uos. 2, 4, 5.
    The mere verbal appointment of a female occupant of the house as custodian, followed by no collection of rents, is not sufficient, where it appears that the liquidators of Hart & Hebert, to whom the property had been surrendered for the benefit of creditors, held an office in the building occupied by their President and Secretary. They should be likened to third possessors entitled to notice. 30 An. 1.
    Second — There were no notices of seizure served on either Hart or Hebert or their Liquidators. The absence of any return by the sheriff that the notices were served, cannot be supplied by the verbal testimony of that officer, in another suit, after he has become functus officio; 10 M. 91. The rule laid down in 2 R. 485 only refers to amendments óf existing returns.
    H. There was no valid sale of the property.
    First — Because the writ had expired, the sheriff made no return at the end of seventy days. His term of office expired, and his successor returned the writ 413 days after its expiration, and then proceeded to execute it on a retained copy. 26 An. 735; 27 An. 678; 28 An. 75; 30 An. 84.
    Second — Section 3416 R. S. to the effect that the return of any writ of fi. fa. shall in no case operate as a release of seizure of property, or as a discharge of any lien acquired thereon, is a negative pregnant with the affirmative that unless the writ is returned, the seizure shall be released and the lien acquired thereby discharged.
    Third — In execution sales a compliance with the forms of law, supplies the consent of the seized debtor. Plaintiff incurs the risk of his laches, and the sheriff is responsible to him, otherwise there is no reason for the provisions of R. S., sections 3413, 3408.
    <?. W. Buckner and Herron & Beale for Defendants and Appellees:
    First — It is res adjudicata that these plaintiffs are not owners and third possessors of the property, the sale of which they seek to set aside. 30 An. 868, 869. The same decision shows they can no longer contest any informalities in this suit.

      Second — All judicial proceedings are presumed to be regular until the contrary is shown. 13 La. 496; 2 An. 503; 3 An. 146; 13 An. 216.
    Third — He who seeks to annul an alienation must show that the formalities were not complied with. G-rant vs. Walden.
    Fourth — Notice is a right personal to defendant, and exclusively for his benefit, which he may waive without invalidating the sale; his creditors cannot complain. 6 An. 361; 7 An. 143.
    Fifth — Ex-sheriff may make a return. 2 B. 484.
    Sixth — The expiration of the writ, without a copy being retained immediately, does not release the seizure made prior to the expiration of writ under it, and the sale oí the property under a copy retained before second advertisement, is valid, especially where the sale had been arrested by injunction on the part of plaintiffs, now attacking sale. 13 An. 216; 11 Bob. 181; 12 R. 13; 24 An. 164; 30 An. 84. Conclusive on this point, 30 An. 1128; 32 An. 474.
   The opinion of the Court was delivered by

Bermudez, C. J.

On the 7tb of November, 1875, the members who composed the firm of Hart & Hebert, made an extrajudicial voluntary surrender of their property to their numerous creditors, which twenty odd of them refused to accept.

StyliDg themselves “ the Board of Liquidators of Hart & Hebert,” the petitioners took possession of such property.

Certain mortgage creditors, nevertheless, thereafter proceeded via ordinaria to the recognition of their claims, and obtained judgment to that end, contradictorily with Hart & Hebert, which on 'appeal was affirmed. 30 An. 868. They afterwards assigned that judgment to another person, who issued a writ to have it satisfied, levying on the mortgaged property. At the offering for sale by the sheriff, T. W. Bothick, the real defendant herein, became the adjudicatee, and subsequently had himself put in possession of the property by that officer.

Thereupon, alleging themselves owners of that property, in their fiduciary capacity, the plaintiffs charged by this suit apparently grave irregularities against the proceedings conducive to the sale, and prayed for the nullity of the sale and for possession of the property.

Several defenses were set up by Bothick, res judicata, estoppel, general denial, title in himself, and eventually a money demand for taxes paid for, and repairs put on the property.

There was judgment rejecting the plaintiffs’ demand and they have appealed.

When the case of the mortgage creditors above mentioned was decided on appeal in 1878, the court speaking of the intervenors, who were the liquidators of Hart & Hebert, the present plaintiffs, said : “ The intervenors claim to be’third possessors, but are not, under the evidence, entitled to occupy even that position, as they are shown to be and allege themselves simply the liquidators of Hart & Hebert, and, in that capacity, to have received, from the partners a transfer of the land, mortgaged for the benefit of creditors. This is, at best, but a security and means for the payment of the debts coupled with the power to sell the property for that purpose, the real title being in the hands of the debtors.”

In that expression of opinion, touching the legal status of the plaintiffe, we concur.

The surrender made extrajudieially by Hart & Hebert was not accepted by all their creditors. It does not purport to be a dation en paiement. It can have no greater force than a voluntary surrender, taking place through the intervention of the court, under the State laws.

The Code, article 2175 et seq., says that the surrender does not give the property to the creditors. It only gives the right of selling it for their benefit, and receiving the income of it till sold. The debtor preserves the ownership and may divest the creditors of the possession, at any time before they have sold it, by paying the amount due them. Even after a liquidation, the debtor having ceased to be such, is entitled to be paid the surplus, if any remains, after payment of the creditors. Even if he were to die before the sale, the property surrendered would form a part of his succession. R. S. 1791.

The jurisprudence on those provisions of law is, that the acceptance of the cession vests the property in the creditors, so that it be no longer liable to seizure or execution; but they acquire no real ownership in it. It is vested in them only to a certain extent and for certain purposes. They cannot hold it in common nor partition it in kind. It is in their hands only as a pledge, which they must have sold, according to law, in order to have the proceeds distributed among themselves according to their respective rights. 2 R. 187; 9 R. 219; 3 An. 387; 4 M. 562; 4 An. ■ 490; 5 An. 274; 11 An. 1,148.

Those authorities are referred to merely to show that, as in a voluntary surrender accepted by the court, the title remains in the insolvent; title cannot surely be considered as divested in the case of a voluntary surrender made extrajudieially; more specially when it is not accepted by all the creditors.

As the plaintiffs have averred ownership, they cannot be viewed as creditors seeking to annul the sale of their debtor’s property. As Hart & Hebert are not parties plaintiff to this action, and do not complain of the sale attacked, we are at a loss to perceive what standing the plaintiffs can have in Court to champion rights in their name by claiming a title of ownership to the property, the nullity of the sheriff’s sale and a return of possession to them. 6 An. 361; 7 An. 143.

This view of the case renders it unnecessary to consider the irregularities charged as valid causes of the nullity of the sale, under which the defendant appears satisfied to hold.

The judgment of the lower court, as we construe it, is one of dismissal.

It is therefore affirmed with costs.