author: Watkins, J.’

text:
    No. 10,562.
    Succession of Mrs. Minerva Sparrow.—Opposition of Heirs to Homologation of Fourth Provisional Account and Tableaux of Debts.

      J. The amount of commissions due an administrator of a succession is matter for determination on final account.
    2. In ease an administrator has made to a minor advances on its share or interest in the succession for purposes of subsistence, schooling and maintenance, it is permissible for him to carry same into a succession settlement, and he is not bound to resort to an action against the tutor for settlement — the interest of the minor not having been liquidated and separated from that of the major heirs.
    3. In case an administrator improperly applies a sum to the debit of a succession creditor, and by judgment of the court it is withdrawn therefrom and imputed to a different account, the former is necessarily increased by that much.
    ■1. The major heirs of a succession having bound themselves personally, and to the extent of their virile shares therein, for debts contracted by the administrator with a third person, and a settlement of which is to be made in the succession, it is competent for such creditor to intervene in the proceedings and join the accountant, so as to speed the trial and enforce the payment of his claim.
    A PPEAL from the Eighth District Court, Parish of East Carroll. Ix Williams, J.

      Jos. E. Ransdell for the Administrator, Appellant:
    Where a debt against a succession duly sworn to is offered in evidence without objection, it will be held to.bo prima facie proven. 31 An. 703.
    Equity obliges the owner whose business has been well managed to comply with the engagements contracted by the manager in his name; to indemnify the manager in all the personal engagements he has contracted, and to reimburse him all useful and necessary expenses. C. C., Art. 2299; 19 An. 494.

      Where the executor of an estate has filed an account of his administration and all the credits are admitted and all the debits denied (as in the instant case), and the account appears to be fair and reasonable, the presumption is in favor of the executor, who is an offioer of the court, and positive and direct proof of every item is not required. 19 An. 494, Succession of Wederstrandt.
    He who pays the debts of another has a right to recover from the debtor the amounts so paid. C. C., Arts. 1965 and 2999; 11 An. 400.
    No man shall profit by the labor of another without compensation. Hen., Yol. 2, p. 1282; 2 An. 147; 10 An. 395.

      W. G. Wyly for the Heirs, Appellants.

      J. M. Kennedy for Intervenors, Appellants.
   The opinion of the court was delivered by

Watkins, J.’

When this succession and the various contestants were last before this court — 40th of Annuals, page 484 — quite a number of questions were adjudicated and others left open for future determination, and for that purpose the cause was remanded to the lower court.

They are (1) for the ascertainment of the amount for which the shares or interests of the two major heirs of Mrs. Sparrow are liable to John Chaffe & Sons, growing out of their written agreements, touching the cultivation of the succession plantations by Edward Sparrow and Chris. Chaffe, Chaffe administrators, and the advances made and supplies furnished by said firm for the purpose of said cultivation; and (2) for the adjustment of any indebtedness of all the heirs of Mrs. Sparrow for advances made to them by the succession, or by Chris. Chaffe, administrator.

When the case went down to the court below the administrator fiíed his fourth provisional account and three tableaux of debts: one of debts.fiue by the succession; one of debts due by the heirs to the administrator of the succession; one of debts due to John Chaffe & Sons by Edward Sparrow, for which the two major heirs are responsible to the extent of their virile shares in their mother’s succession.

This last indebtedness was the subject of special mention and reservation in each of our opinions and decrees in this succession, in 39th and 40th of Annuals. In those cases all questions appertaining to it were definitely settled, except that of its amount; and the object of this appeal is, mainly, for that purpose.

The major heirs oppose the account and the first and last tableaux, and the tutor of the minors opposes the second tableaux and the account on various grounds.

On the trial, the judge a quo approved and homologated the account and second tableau, without any alteration, rejected the first one in its entirety, and amended the third, so as to fix the total amount due John Ohaffe & Sons at the sum of $31,454.54, capital and interest, on the date judgment was rendered, January 9, 1890; the total amount of the proceeds of the crop of 1883, and the proceeds of the sale of Midland store — less the amount to be reserved from the latter, with which to pay its creditors, G. D. Tutt & Oo. and Orr &Lindsley — at the sum of $20,835.85; and, after the latter had been deducted, the total amount of the net balance due that firm at the sum of $10,618.69. The judgment fixed the amount of the one-third due by Mrs. Kate Forster at the sum of $3539.56, and that due by Mrs. Fannie Ashbridge at the same amount, and ordered the administrator to pay said sums, respectively, with legal interest thereon from date of decree, to the intervenors, as the heirs of John Ohaffe, and the successors in title of John Ohaffe & Sons, out of their respective shares or interests in the succession. It further ordered the administrator to pay to said intervenors the said proceeds of the crop of 1883, on account of their claim against Edward Sparrow, as administrator of succession plantations.

From this judgment all parties have appealed.

In briefs, various points are argued; some of which have already been decided in our previous opinions, and others appertain to claimed items of increase, or diminution of the aforesaid judgment.

I.

Taken in the order stated, the first question presented for consideration is whether the administrator should charge himself with $4000 as the rental value of the succession plantations for the year 1888, or is $3500, as charged in the account, the full amount for which he is liable. The opponents objected to the introduction of any evidence on the question of the rental value of the plantations in 1888, on the ground that our opinion in 39 Annual is res judicata.

The judge a quo overruled them objection and admitted evidence, and opponents reserved a bill of exceptions to his ruling. We think the judge was right in so ruling. Our decree in 1887 could not include a question of rents in 1888. It did not, either in terms or effect, attempt to do so. We simply held “that, having made no effort to lease the plantations under his administration, he is liable for the rental value of the same during the time he cultivated them for his own account, under the law.” Oonsidering the evidence, we fixed the rent of the three plantations “at $4000 per annum, subject to deduction for taxes levied thereon.” A the same time we, most distinctly, recognized the right of an administrator to lease succession property, and by private agreement, after due notice. (Pp. 703-704.) Oiting succession of Richmond, 35 An, 858; succession of Myrick, 38 An. 611.

In this ease the evidence shows that an effort was made to obtain a higher price for them, but that, after obtaining an order of Court to that effect, and making public advertisement, $3500 was all he could obtain for the rent of the three plantations, mules, etc., appertaining thereto, and this sum he has collected and charged himself with on his account. This is certainly all he is responsible for, and the'court below correctly entertained that view and homologated the account.

II.

On the first tableau of debts there appear but three items. No complaint is made by any one of the disallowance of the item of $964 in favor of Stevenson and May, and opponent’s objection to which was, that same had been previously allowed on a former account.

(a) Of the second item — it being an amount $1609.45, claimed as being 21-2 per cent, commissions on $64,378.55, as the net value of the succession — the administrator says, that he does not demand the payment now, but merely desires that the amount be liquidated and determined, at this time, in order to prevent future litigation and additional expense; on the other hand, the opponents’ contention is, that this is matter for determination on final account. In the view of the opponents we concur. On the trial of annual or provisional accounts, the questions are: (1) What revenues or other moneys has the administrator received; and (2) what sums has he disbursed. On the trial of a final account, the questions are: (1) What property, and values of all kinds, passed under administration; and (2) has the administrator faithfully administered the succession, accounted for all he received, and is he entitled to a discharge. At this time the court mil not examine and decide what amount of compensation he is entitled to receive.

This identical question was argued and decided when the case was last before us, and we said: “The administration is not yet closed, and we do not think that the succession should now be taxed with the entire commissions. These are only properly exigible upon a final settlement, to be adjusted in the final account.” 40 An., p. 492.

We can discover no useful purpose that would be subserved by taking up and deciding the question of the administrator’s right to commissions, confessedly before they are exigible. Non constat that, when they have become exigible, any opposition will be made to their allowance; or that something might not occur, between the judgment and final account, which would render their payment impossible.

Altogether, we think it advisable that the whole matter should be postponed to the final account.

(6) Of the third item — it being an amount of $250, claimed by J. E. Ransdell, attorney for the administrator, as due for professional “services rendered since the death of J. W. Montgomery, in June, 1888,” — the contention of the administrator is that his services have been valuable to the succession; and, that of opponents, that they are covered by, and embraced in, the amounts awarded' in favor of the pre-existing law partnership of Montgomery and Ransdell, of which the claimant was a member, in our last opinion. 40 An. 491, 495. After stating the amount claimed to be $5017.05, less the amount paid, of $900, leaving the balance of $4170.05, we said:

“The fee of Montgomery & Ransdell was reduced to $2862, and, adding the $900 already paid, made $3762.85. * * * We have carefully examined the report and considered the proceedings with special reference to making a just estimate of the services rendered by these gentlemen, and we think they should be allowed a fee of $3250; and, deducting the $900 received by them, would leave a balance due them of $2350; this to include services rendered and to be rendered in the settlement of the succession,” etc.

This is plain enough, and entirely free of ambiguity; but counsel, in brief, cites us to the phraseology employed in our decree, and invokes it as being decisive of the question in his favor. It is as follows:

“That the fee of Montgomery & Ransdell be fixed at $3250, subject to a credit of $900, already paid, leaving a balance of $2350 due.” Hence, he insists that the opinion- — -or, rather the decree — did not fix the amount of fees of counsel for future services, and his claim is well founded. But we do not regard the word “due” as exercising control over the opinion and the remainder of the decree, as both the opinion and first part of decree fix the sum alike, viz: $3250 less $900, leaving a balance of $2350. We can see no inconsistency between the statement in the opinion that this sum is “to include services rendered and to be rendered in the settlement of the succession,” and that in the decree “of $2350 due.” It may be questionable, or even illegal, if you will, for the full amount of attorney’s fees to be awarded before his services have been fully rendered and the succession wound up; yet, if neither the administrators, heirs or other creditors complain of such an allowance having been made, that is the end of the controversy. But, however that may be, we are not disposed to regard with favor an argument of that kind in behalf of an additional allowance.

Having thus disposed of all the items which figure on the first tableau of debts, we find the judgment of the judge a quo, rejecting all, to be correct, and approve of his decree, in that particular.

III.

On the second tableau of debts there appear only three debts-enumerated, as being due by the heirs of Mrs. Sparrow to Chaffe, administrator, viz:

Amount advanced to Kate Foster, - $4,487 25

Amount advanced to Fannie Ashbridge, - 2,105 00

Amount advanced to minors Decker,- - - - 4,018 84

The vouchers corresponding therewith disclose that these sums are made up of cash, and drafts, of the different parties, on the administrator, which were paid by him, during the year 1883 (latter-part) , 1884, 1885 and 1886, and since. Neither of the' major heirs opposed the amounts charged to them respectively, and hence the only question is, with regard to the charges against the two minors, Mary and Kate Decker.

Their tutor insists that it is not competent for the settlement to be made in the sueeession of their grandmother, on an administrator’s account, but that it should be referred to him as tutor for allowance or rejection, and settlement thereof, in the tutorship. He further contends that, as no debt can be made against minors in excess of .their revenues without the authority of a family meeting (R. O. O. 350), there is no legal reason for the inforcement of the administrator’s demand against them.

In our opinion in 39 Annual, at page 706 we expressed our views, in regard to a part of this claim, thus:

It appears from the record that, since his appointment, the present administrator has * * furnished the means necessary for the maintenance and for the' schooling of the minors Mary and Kate Decker, and that, as they were without a tutor from August, 1883, to the latter part of 1885, the funds were intrusted to Mrs. Foster, who had kindly taken charge of the two minors. All these proceedings were irregular, and were carried on outside of the law, but they were manifestly prompted by laudable feelings, and considerations of fairness, and of humanity, for which the administrator should not be made to suffer, if by any legal means he can obtain reimbursement. * * * *

We therefore deem it our duty to reserve * * * * the rights of the administrator to demand reimbursement of all sums advanced by him to the two heirs aforesaid, as well as for similar advances made to the minors Mary and Kate Decker.”

An examination of the record discloses that all items prior to the 14th of July, 1887, were charged to Mrs. Kate Foster, and those subsequent to that date to C. S. Wyley, tutor.

His opposition denies the correctness of only those items which are charged to Mrs. Foster, and which aggregate §2188.84; but it admits the receipt of the remainder of §1830, and the liability of his wards therefor.

Hence, it is clear that the whole question is remitted to this succession settlement, and that it is narrowed to the amount of money the administrator expended for their account.

We can perceive no objection to this mode of proceeding, as the account ar d two of the tableaux concern the minors, and their interests are still united with those of the major heirs in the succession. And it is quite as much a matter, of justice to the administrator that their liability to him, for advance payments made on their in heritance should be adjusted in the succession as payments so made to the major heirs.

The proof fully satisfies us that Chaffe, administrator, made the advances stated in the tableau, and that the shares or interests of the minors are liable therefor — there being no proof in the record to show that the sum expended exceeded their revenues.

IY.

Before we undertake the discussion of the account of John Chaffe & Sons against Edward Sparrow, as administrator of the plantations of Mrs. Minerva Sparrow’s succession, a brief review of its status, as it appears in our decisions, will be necessary.

During General Sparrow’s administration of his wife’s succession, between the date of her death, in' December, 1879, and the date of his, in July, 1883, he conducted with that firm all of his financial transactions. On account of those dealings, that firm" preferred .against her succession a large claim, the correctness of which had been acknowledged by Sparrow, just before his death. In July, 1883, Christopher Chaffe became administrator, and continued the administration and the affairs of the plantations just as they had been managed by his predecessor. In 1885 he filed an account and tableau of debts, on which the claim of his firm figured, at the debit of of the succession, for the sum of $27,466.68, as due at the date of General Sparrow’s death. They were opposed, and, on appeal, we held that the administrator must be considered and treated as having operated the plantations of the succession for his individual account, with the authorization of the major heirs, and, as such, responsible for the revenues thereof, and chargeable therewith. We also held that John Chaffe & Sons were not the creditors of Mrs. Sparrow’s successson, but of General Sparrow, as the administrator of the succession plantations, and that Mrs. Poster and Mrs. Ashbridge, major heirs, were bound, under their written agreements, each for one-third of that debt, to the extent of their respective virile shares in their mother’s succession. On account of the mixed character of these transactions and the peculiar relations of the parties, it was thought proper that the account of John Chaffe & Sons should be liquidated, and settled in the succession and contradictorily with Chaffe, administrator; therefore, it was ordered by the court, that the administrator shquld apply the net proceeds of the 1883 crop (which was, at that time, standing at the credit of the succession) to> the credit of John Ohaffe & Sons.

But, upon an examination of their accounts, it was ascertained to> be a fact that, in February, 1880, there was at the credit of Mrs. Minerva Sparrow with them the sum of $11,451.61, and that they held her mortgage notes for $11,051.32; and that, instead of applying that sum to the extinguishment of said notes, they incorrectly imputed it to her credit on their account.- We held this to be illegal, and imputed that balance to the discharge of Mrs. Sparrow’s notes, and gave her succession credit for the resulting balance of $400.29. This resulted, of course, in a. corresponding increase of John Qhaffe & Son’s account by that amount.

When the cause went down to the lower court for a trial of the-questions remaining in suspense^ and in pursuance of our express direction, the administrator filed an additional account, and two tableaux of debts, on which the account of John Ohaffe & Sons was restated and the amount fixed at $42,000, and one-half charged to each of the major heirs.

These were approved, and on the trial it was held by the District-Judge that no proof was admissible in reference to this account, and we decided that his ruling was erroneous, and again remanded the case, for the purposes stated above, and directed the judge to admit the rejected testimony. On the return of the case to the lower-court, the issues and pleadings were reformed and disposed as stated in the beginning of this opinion.

(a) As stated in transcript and brief of John Ohaffe & Sons, this-account stands thus, viz :

Balance due July 5, 1883 - $27,466 68

To amount paid on mortgage - 11,451 61

To interest on last to July 5, 1883 - 3,081 75

Aggregating - - - - . - - $42,000 04

Opponents not only deny and vigorously resist this additional charge of $11,451.61, with interest, but also the whole claim of John Ohaffe & Sons.

On the trial their counsel admitted that in the account there was erroneously charged, as a debit, the sum of $2,974.51, and that that sum was a debt of A. M. Ashbridge, the husband of one of the major heirs and opponents, and should be deducted. Said sum, with interest to July 5, 1883, aggregated $3,733.52, and when credited on the account there was left a balance due of $38,266.52.

Originally there was, also, a personal debt of Gen. Sparrow charged up in their account, but the proof shows that, upon holding a conference with him upon the subject, same was credited back again and completely eliminated therefrom.

From what is recited in the preceding part of this paragraph on the subject, it is manifest that the sum of $11,451.61, with interest, was correctly charged into the account again, and properly figures as an additional debit against General Sparrow, because John Ohaffe & Sons had improperly given him credit for just that amount of Mrs. Sparrow’s personal funds, which were in their hands before her husband was appointed administrator of her succession.

Having thus withdrawn that amount of credit, there must, necessarily, be a corresponding amount of debit against General Sparrow. We think the account has been correctly restated at the figures above given. The proof fully satisfies us of the correctness of the demand. All of the accounts are before us in the original, and to them are appended the original depositions of the then members of the firm, which were taken in 1886, and have, since that date, been on file in the mortuoria, and have been previously submitted to this court for examination. Those witnesses were submitted to a rigorous cross-examination by the opponent’s present counsel, who have failed to produce any countervailing evidence. They each testify to the correctness of each and every item of the accounts, and upon their uncontradicted evidence we feel warranted in approving and allowing them for the balance claimed of $38,266.52, with legal interest from July 5, 1883.

(6) Counsel for opponents, however, insist that the account of John Chaffe & Sons is not for strict plantation supplies, a large part of the advances made having been for General Sparrow’s individual uses and that of the minors, and that they are not chargeable therewith. They point to General Sparrow’s certificate approving those accounts as confirmation of their complaint.

Endorsed upon a paper which is annexed to their accounts and the accompanying depositions is a certificate in which he approves those rendered prior to the 4th of August, 1882, and in which it is stated that “the charges made therein for supplies furnished and advances made to enable (him) to carry on and administer said plantations are correct, and were used in that way, except that a small part thereof, not exceeding one-sixth (if that much), was expended for the necessary support of the heirs of Mrs. Sparrow, and (were) so expended by their request, and with their consent that the crops of the place should be used by me in the payment thereof.” (Italics ours.)

On that date the total amount of John Chaffe & Sons’ account approximated $21,000, and was only increased during the succeeding year by about $6000.

But there is no proof as to the application of the last named advances; and there is no question of opponents’ liability for their proportionate shares of two-thirds of the $21,000, under the very terms of the certificate which opponents invoiced, although it might have been questionable under those of their original agreements. And we regard them equally bound for the amounts advanced to and consumed by the two minors, who had, at the time, no tutor, and were living in the family domicil. The major heirs, by virtue of their written agreements, came under a similar obligation to John Chaffe & Sons, as General Sparrow did. Even a greater one, because a large portion of the supplies and advances thus made was expended and used for their support, schooling and maintenance, and that of their nieces, with their knowledge and acquiescence. Bound as they were to John Chaffe & Sons and co-operating as they were with their father, in the management of the plantations of their mother’s succession, they were bound to have been aware of the necessities of the minors; and must be held to have consented to and acquiesced in what General Sparrow permitted to be done, and can not be allowed to shield themselves from the full measure of their responsibility for his indebtedness on that account.

(c) Opponents specially disown any responsibility, for any obligation of General Sparrow, arising out of his commercial enterprise, in the way of a store on Midland plantation; and, at the same time, they resist the demands of D. G. Tutt & Oo. and of Orr & Lindsley, to be paid the amount of their respective claims from the proceeds thereof.

It appears from the record, that the store in question was situated on the Midland plantation, it being one of the plantations then belonging to Mrs. Sparrow’s succession, and from it advances of supplies were made to it, and to the two others, and the laborers and employes on each. This store was operated by the employés of General Sparrow, and supplied by John Ohaffe & Sons, in great part. D. G. Tutt & Oo. and Orr arid Lindsley, also, furnished it, in part, and the claims presented are for advances made to'it.

This store formed an important ingredient in the administration of those plantations, and we think the District Judge correctly treated the proceeds thereof, as forming a part of the assets to be used in effecting a settlement of John Ohaffe & Sons’ account. In so doing, he could not, with justice or propriety, have disregarded the lemands of other opponents for a share thereof.

The judgment fixes the amount of the proceeds of Midland store at $1640.75, and deducts therefrom $643.27 as the amount due D. G. Tutt & Oo., and $454.96 as the amount due Orr and Lindsley, and allows the balance of $542.79 as credit on the account of John Ohaffe & Sons. The sums due D. G. Tutt & Oo. and Orr and Lindsley, are not to be paid over to them, but are to be, retained in the hands of the administrator for payment, in due course of law.

Under the circumstances, nothing else could have been done.

Y.

The next important question to determine is the amount of the net proceeds of the crop of 1883, which was produced on the succession plantations, partly under the administration of Edward Sparrow, and partly under that of Ohaffe.

While it is true that Christopher Ohaffe was a member of the firm of John Ohaffe & Sons at the same time he was administrator of the succession, yet the proceeds of that crop stood to his credit as administrator on the books of John Ohaffe & Sons and were not under their dominion or control. For the purpose of facilitating settlement, and speeding ¡the trial of the account, the heirs of John Ohaffe, who departed this life in October, 1888, and the successors in title of John Ohaffe & Sons, filed an intervention, to which the opponents excepted, on various grounds. We are of the opinion that the District Judge properly permitted it to be filed, as it tended to subserve the purposes enumerated, and was in furtherance of the reservations made in our previous decrees.

The net proceeds of the crop of 1883, are stated in the tableau under discussion to be $13,853.83, inclusive of the stock of merchandise in Midland store; and, deducting this amount from the $42,-000.04 represented to be due John Ohaffe & Sons, and there is remaining a balance in their favor of $28,047.20. As before stated, the judgment appealed from increased the amount to $20,298.06— including the proceeds of merchandise in Midland store, already considered.

The decree does not furnish us any data on which this amount is ascertained, but a comparison made of the judgment with the items enumerated on the tableau shows that in order to reach this estimate the judge a quo must have, necessarily, rejected many of them. This seems to be conceded by counsel on both sides in their briefs. Taking these admissions into consideration we will discuss the rejected items seriatim.

(а) The “ pay rolls of J. A. Gary, $700.08.”

The proof shows that Gary was a manager on the Arlington and Hopewell plantations, belonging to the succession, during the year 1883, and, as such, was charged with the settlement of the accounts of laborers, and the payment of their wages. For this purpose Ohaffe, administrator, placed the necessary funds in the hands of an agent on the premises, who furnished the plantation manager, as needed, and he made payments to the laborers on pay rolls, and they were, in turn, surrendered to the agent as vouchers. Every week the manager prepared pay rolls, certified to their correctness, and from the agent received the requisite sum of money to make his settlements. These pay rolls were offered and filed in evidence with - out objection, and other confirmatory proof was made of the expenditure of the money by the administrator, and that same was furnished by John Ohaffe & Sons. The only objection urged in argument is, that the quantum of evidence is insufficient to charge opponents. The testimony offered was, manifestly, all that was attainable. Gai’y was non est inventus, and, after the lapse of six years it would have been an utter impossibility to have obtained the testimony of the laborers themselves. We think the proof of this item is ample, and that it was incox'reetly disallowed.

(б) Balance of salary of E. H. Davis, as overseer, in 1882, $1481.96.

It appears that Davis had been for several years, general manager of the succession plantations while under the management of General Sparrow, and, whexx Ohaffe was qualified, and took charge, he ascertained this balance to be due him on account of the previous year, and, not questioning its correctness, paid it from the proceeds of the 1883 crop. The general complaint made' by opponents of this item is, not of the amount, but of the fact that, same having been an item of credit in favor of General Sparrow, in 1882, it could not be paid from the crop of 1883, as that alone is matter for our consideration.

We think the proof is abundant, of the amount, being due, and of its having been paid by Ohaffe, administrator. When he took charge of the succession, it was at General Sparrow’s special request. He was not, at that time, advised, nor for several years thereafter, that the control and administration of these plantations did not constitute a part of his administration of the succession, and that of his predecessor in office. He had the impression that his administration was but a continuation of that of General Sparrow, and, doubtless, supposed that any preferred claim on the crop, like that of an overseer’s wages, could be with propriety paid from the proceeds of the crop of 1882, or 1883,.in differently, as his services extended to both, though under different administrators of the same succession. Notwithstanding he was in error in this assumption, yet the management and superintendence of General Sparrow continued until the 5th of July 1883, or for one-half of the year, and he was the absolute owner of the whole crop of that year. There is no question of the fact, that, under their written agreements, the major heirs were absolutely bound for all the legitimate and proper expenses of the cultivation of that crop, which General Sparrow contracted, and for those of previous years. What justice is there, then, in the demand of opponents, that John Ohaffe & Sons, and Ohaffe as administrator, shall lose this sum, because it was not technically a debt of the crop of 1883, notwithstanding it is one for which General Sparrow and they were legally bound? None.

It is our opinion that this debt should have been allowed, and that the judge a quo erred in rejecting it.

(c) Amount of 1883, $2000.

Under our decree in 29th of Annuals, we held that the administrator, Ohaffe, was chargeable with the rental value of the plantations of the successionat $4000 per annum from the date of his appointment, and he accordingly charged himself with $2000 on his 1888 account, for one-half of the year 1883. Now his claim is that, having paid this sum for the account of General Sparrow, and the heirs jointly, he is entitled to reimbursement out of the crop, for the net balance of which they are to receive credit. This is so manifestly just and correct, that argument seems unnecessary to strengthen and support it. Had the crop of that year been equally apportioned between General Sparrow and Christopher Chaffe, individually, his claim would have been unfounded. But this is not the ease. The whole crop goes to the credit of'General Sparrow’s account, and it must be charged with this part of the rent. This item was incorrectly disallowed, also.

(d) Commissions of administrator of 2 1-2 per cent, on proceeds of crop of 1883, amounting in gross to $38,092.07, and aggregating-$972.30.

While the administrator was put to large expense and trouble in the management of this property he was not administrator quoad hoc— only a negotiomm gestor. His firm was the recipient of the crops, and sold fhem on usual terms.

He was the administrator of the remainder of the succession prop - erty, and will be entitled to commissions as such, on final settlement.

Various other intermediate agents and assistants were in his employ and engaged in the cultivation of thé crop. These are cases which tend to reduce his claim. Yet, it is not right for his services to go wholly unrewarded, and we think that his supervision and care of the crop for one-half the year 1883 should entitle the administrator to some allowance, and we therefore fix the compensation at $300, and to that amount this demand is reduced.

(e) Vouchers Nos. 284 and 180 for the aggregate amount of $191.32 were withdrawn by the administrator, and appropriate allowance was made on the tableau and judgment.

(/) The judge a quo increased the debits of the administrator by charging him with $733.33 for cotton seed of the crop of 1883, used in the crop of 1884; and for corn, likewise employed, valued at $996 — the two items aggregating $1730.08.

An examination of the evidence on the subject leaves our minds in doubt. After the lapse of so many years it is quite impossible for witnesses to testify with accuracy as to details of plantation expenditures, and it is equally as much so for courts of justice to render accurate judgments on their evidence. Hence, an appellate tribunal must in such case, of necessity, rest its judgment on the opinion of the judge below, who knows the witnesses and heard them testify. Therefore we will not disturb his judgment in this particular.

This completes our review of the account and tableaux. There are some other matters adverted to in the oppositions, which we have not considered germane to a provisional account, and have, for that reason, passed them by without notice; but we will fully reserve their rights on the trial of the administrator’s final account.

The judgment must be amended so as to conform to the views herein expressed.

It is therefore ordered and decreed that the judgment appealed from be amended in the following particulars, viz:

1. So as to charge to and deduct from the amount fixed by the judgment, as the net proceeds of the crop of 1883, the following, viz:

(а) The pay rolls of Gary, $700.08

(б) Balance of Davis’ salary, $1481.96.

(e) One-half 1883 rent, $2000.

(d) Commissions on 1883 crop, $300.

Aggregating $4482.04.

Resulting in a net crop balance, in the hands of Ohaffe, administrator, of $16,353.81’for the year 1883.

2. So as to fix the net balance of Edward Sparrow’s indebtedness to John Ohaffe & Sons, as of date July 4, 1883, at $38,266.52; subject to a credit of the amount fixed herein above as the net balance of 1883 crop, whereby a final balance in their favor, and against Edward Sparrow as administrator of the succession plantations — from December, 1879, to July 4, 1883 — is produced, of $21,912.71, on which legal interest is to be computed from the 4th day of July, 1883, to date of payment.

3. So as to fix the amount for which each one of the shares Or interests of the major heirs — Mrs. Kate Foster and Mrs. Fannie Ash-bridge — respectively, are bound, at the sum of $7304.23, with like interest as last and from same date — that sum being one-third of the net balance due by Gen. Edward Sparrow.

It is finally ordered and decreed that these sums shall be, by the administrator, reserved out of their respective shares in the succession, on final settlement, and by him paid to John Ohaffe & Sons. That, in all other respects, the judgment appealed from be affirmed and the costs of appeal be taxed against opponents and appellants.

Rehearing refused.


source: Caselaw Access Project

author: McEnery, J. Bermudez, C. J.

license: Public Domain

text:
    No. 10,581.
    Succession of B. Dougart.
    Tlie Supreme Court lias no jurisdiction over a controversy, the sole object o£ which is to recover us costs an amount below the inferior limit of its appellate jurisdiction, where the judgment, though rendered by it with costs, has been satisfied and is defunct. The ruling in 39 An. 583 is inapplicable to this case.
    APPEAL from the Oml District Court for the Parish of Orleans. Rightor, J.

      A. L. Tissot for the Appellee:
    Want of jurisdiction will bo taken notice of by the court ex proprio motu at any stage of the proceedings.
    Harmony Club vs. New Orleans Gas Light Company. Succession of L. C. Gohs, 37 An. 429.
    This court has no jurisdiction over a matter or claim against a succession when the amount claimed is less than $2000, and the fund in the hands of the executrix or administratrix does not exceed that amount. Succession of L. O. Gohs, 87 An. 429.

      Buck, Dinkelspiel & Hart for the Appellants,'
    cited: Factors and Traders Insurance Company vs. New Harbor Protection Company et als., 89 An. 583.
   The opinion of the court was delivered by

McEnery, J.

The final account in this succession was filed in 1876. Oppositions were filed by the heirs. They were dismissed and the account was homologated.

On appeal to this court the judgment of the lower court was amended, striking from the account the item to the ..credit of Louis Mathe, and in other respects it was affirmed.

The succession was ordered to pay the costs of the opposition and the appeal.

The cost bill amounted to $227.60.

Mrs. Catherine Bougart filed a rule on February 29, 1889, on the executrix to file a final account of the administration of said succession, as she had filed none since the rendition of said judgment, ordering the succession to pay said costs. The defendant in the rule pleaded the prescription of one, three and ten years, which was sustained, and there was judgment dismissing the rule.

The plaintiff in rule appeals.

This court must proprio motu dismiss the appeal.

The entire fund of the succession was disposed of by the judgment, homologating the account. The amount for cost is the only sum to be distributed. This is the amount in controversy. It is less than the lower limit of our jurisdiction. The appeal is therefore dismissed. Succession of Duran, 34 An. 585; Succession of Gohs, 37 An. 429; Harmony Club vs. N. O. Gas Light Co., 41 An. (not yet. reported).

On Application por Rehearing.

Bermudez, C. J.

The appellants contended that this court has jurisdiction and relies on the ruling in Factors’ Insurance Company vs. New Harbor Protection Company, 39 An. 583, as decisive.

The cases are dissimilar.

The court there decided that, as the controversy was the construction of an existing judgment for more than $2000, involving the question whether or not it bore interest, the issue raised was, whether the complainants were or not entitled to the amount with interest, and thus the case was appealable.

In the instant case, the judgment homologating the amount at the cost of the succession is not sought to be construed. It has received its execution, is defunct and is not sought to be enforced.

The only remnant of it which is the matter now in dispute, is the costs set up by the plaintiffs in rule, for $277.60 only, which were not. fixed at that sum by the previous judgment, and to recover which they have instituted a new independent proceeding, equivalent to a direct suit, in which, from no aspect, this court can render a judgment for an amount exceeding $2000 with costs, which it could have done in the ease invoked, with or without interest, with or without costs.

The refusal to take jurisdiction is well founded.

Rehearing refused.


author: Breaux J.

text:
    No. 10,603.
    Henry T. Foote vs. Mrs. Clara Godwin.
    A claim, tlie payment of which lias remained nndemanded more than ten years, can not he recovered unless the testimony is direct and uncontradicted

      (Concealment, deception and fraud, with reference to an amount alleged to have been collected tor another, must be shown conclusively, in order to enable a claimant to recover, despite the fact, that ho has allowed more than ten years to elapse without presenting his claim or having it acknowledged in the presence of a third person, or without securing any evidence whatever of his claim.
    'Plaintiff’s testimony alone, with reference to the concealment, deception and fraud, will not be held sufficient to prove them; when previously in another case, before a different tribunal, he has sworn that the amount (if recovered), part of which lie now claims, would be duo only to the party (from whoso succession he now seeks to recover), and that ho had no interest in the claim.
    APPEAL from the Civil District Court for the Parish of Orleans. EUis, J.

      H. H. Walsh and O. 8. Kellogg for Plaintiff and Appellant:
    ■“All acts or hindrances coming from the debtor, which deprive the creditor of tlio remedy and forum contemplated at the time of contract, suspend prescription.” Boyle vs. Mann, 4 An. 170.
    ■“ Where plaintiff makes out a clear case of inability to sue by reason of some hindrance by the debtor, prescription can not be set up by the debtor, and will not be sustained.” Martin vs. Jennings, 10 An. 553.
    “ Where the debtor himself has done some act to effectually prevent the plaintiff from availing himself of his cause of action, a pica of prescription will not be sustained.” Reynolds vs. Batson, 11 An. 729; same vs. Jas. Brenford.
    “ The bar does not commence to run until the fraud is discovered-.” 21 Wallace 342. The same doctrine was held in Rosenthal vs. Walker, 111 XT. S. 185; and in Traer vs. Clews, 115 XI. S. 538.

      Branch K. Miller for Defendant and Appellee:
    In the prescription Ubcrandi causa good faith is not required. R. O. C., Arts. 3528, 3530; 8 An. 183.
    Kxtra judicial admissions of a dead man are the weakest of all evidence. Stale claims are regarded unfavorably by the law. 36 An. 625; 35 An. 1007; 37 An. 97.
    A11 traffic between parties separated by the military lines of the contending governments, during the latter, was prohibited by law. 21 An. 193; 17 Wallace 601.
   The opinion of the court was delivered by

Breaux J.

The records show the following facts:

Some time in the year 1862, plantiff’s brother, as agent of David •Godwin, bought for him in Texas a number of beeves at twenty dollars per head.

In purchasing, herding and driving them he was assisted by his .brother, the plaintiff in the suit.

The latter alleges that while they were in Texas, he also bought two hundred head of beeves and altogether they were driven to .Louisiana; that Godwin was to sell these beeves in the New Orleans markets and account to plaintiff in proportion to the number of beeves he owned.

In southwest Louisiana three hundred of these beeves were sold to the Confederate government and others were afterward bought and placed in the drove (a number about equal to that sold to the Confederate government).

They were pastured in Louisiana' about eight months.

On the trial of the case, before the court a qua, a copy of an affidavit of plaintiff was introduced in evidence, in which he deposed that he and his brother purchased for account of David R. Godwin, and with his money, eighteen hundred and thirty-seven head of Texas beeves.

That they drove them from Texas to Oypremort in the parish of .St. Mary.

While there, they were taken by the Federal army in April, May and June, 1863.

He also deposes, in this affidavit, that they cost, purchase price ,and expenses, $60,000.

There was a claim presented by Godwin against the United States ■government before the Southern Claims Commission in 1866, for the •value of 1200 head of Texas beeves taken' by the Federal army in the •Oypremort, the number remaining of the beeves bought for him by his said agent as before mentioned.

When this claimant was heard before this commission and a trial was had., this affidavit was admitted in evidence.

In addition, at the time, plaintiff testified as follows before the Claims Commission at Washington:

Q,. Have you any interest in this claim?

A. I have not-

Q,. Yon do not expect to recover anything if he recovers?

A. No, sir; I do not.

Q,. He pays you for coming on here; your expenses and time?'

A. He pays my expenses here.

Q. Nothing was said about your being paid in proportion to the amount that was recovered, or anything of that sort?

A- No, sir-

Upon this and other testimony the Claims Commission held, that the claimant should recover the sum of $24,000.

They were paid to him by the government on the 28th of May, 1877.

Plaintiff in the case at bar, in the year 1876, wrote several letters to Godwin, in which he applied for loans and relief, but does not state anything about any claim of his, either actual or prospective, growing out of this beef transaction in the name of Godwin.

In his testimony before the District Court, in this case, plaintiff testifies that he knew, some eight years prior, that the claim against the government for the value of the 1200 beeves had been allowed, but that he was informed by tho claimant that the.amount was not sufficient; that he had applied for an increase. He testifies that Godwin designedly concealed from him that the amount had been paid.

Godwin died in January, 1877.

About nine months after his death plaintiff’s counsel ascertained that the sum allowed by the government had been paid.

This suit was then brought on the trial before the court a qua; the defendant offered, and it was admitted in evidence, a copy of-plaintiff’s affidavit made in 1875, the affidavit admitted before the Claims Commission, also a copy of his testimony before that commission, an abstract from which is copied herein.

In his testimony, plaintiff denies that his evidence before the Claims Commission was correctly reported. Nothing is said about the affidavit.

Serious objections are presented to plaintiff’s claim; at least two in number.

1. The number of cattle taken by the government does not correspond with the number bought.

The number bought for Godwin’s account in Texas was - - 1,791

The number bought for Godwin’s account in Louisiana was - 300

2,091

Sold to the Confederates.......300

Leaving - - ------- 1,791

The Federáis took - - • - - - - - 1,200

There was, therefore, a loss incurred of 591 head.

Plaintiff alleges that they were joint owners in the proportion of one-sixth to ñve-sixths.

The latter proportion of the ownership incurred considerable loss, while the former remained the same, for plaintiff testifies to a right predicated on 200 beeves placed in the drove by him. Nothing is said as to expense or loss.

While possibly there is no necessity of applying the maxim prevailing in mathematics that a solution which leaves a residuum unaccounted for is no solution at all; nevertheless it is remarkable that without agreement as to the proportion in which the losses shall be incurred, one of the owners of joint property bears all the losses while the other incurs none.

The plaintiff has sworn twice that the property was the property of Godwin, and once that he had no interest whatever in the claim.

His testimony before the Southern Claims Commission is not at all reconcilable with his ownership — predicated upon a title dating prior to the time the witness testified.

The evidence before this court establishes conclusively the date as prior.

The witness, in his own behalf as plaintiff, testifies as to acknowledgments made to him personally by Godwin since the case was heard before the Claims Commission.

He is not to be heard who alleges things contrary to each other. Edson vs. Union Bank, 11 An. 710.

1 ‘ The extra judicial statements of deceased persons have always been ranked as the weakest evidence, and when reported to have been made to a single witness — in the]! presence of no one else, generally disregarded.” Succession of Townsend, 40 An. 66.

The ease of Hobbs vs. McLean, 117 U. S. Reports, p. 580, is cited by defendant as authority bearing conclusively in support of his position in this case.

In this case each plaintiff had testified in the suit of Peck against the United States, in which the fund was reserved, that he had no interest, in the claim of Peck, except that he held one of the notes or memoranda made by Peck.

It was held that the plaintiffs were not estopped.

It was exclusively a question of estoppel vel non.

The weight to be given to the testimony was not the question.

In the case at bar plaintiff is not estopped. The defendant can not set up estoppel, for the testimony, as in the case cited, was given in favor of her side of the controversy, which by it has not been enriched or injured. It is a question of the value to be given to testimony. '

In determining the weight to be given to the testimony, that given before the Court of Claims can not be ignored, but must be considered in connection with the testimony given when the present case was tried.

The testimony of the plaintiff, the last is that before the court a qua, is not such as to satisfy this court that the previous testimony should be disregarded and weight given to the last only.

They are statements under oath; one excludes the effect of the other and can not form the basis of a judgment.

Only one other witness testifies with reference to Godwin’s declarations made since his claim was heard before the Court of Claims. He knows that he spoke of aiding the plaintiff, but does not show any intention on the part of Godwin to hold himself bound or the least acknowledgment of an indebtedness.

There was not the least promise made or the most remote ratification of plaintiffs’ claim as alleged. The conversation was casual, the parties had just become acquainted with each other, and it is not in evidence that this witness ever spoke of it to any one afterward, not even to the plaintiff.

In the absence of [ declarations or acknowledgments proven by satisfactory and sufficient evidence, judgment affirmed.


author: Bermudez, O. J.

text:
    No. 10,539.
    J. C. Johnson vs. T. J. Flanner et al., and The Same vs. The Same, Consolidated.
    Oral testimony, in the absence oí charges oí fraud, error or violence, is inadmissible between the parties to a sale of real estate, to show the simulation o£ the transaction. None but documentary proof is legitimate in such a case.
    A party is concluded by his judicial declarations. After asserting claims as a creditor for the price of property sold, a vendor, or any one under him, is estopped from denying the character and reality which he has attached to the transaction. He can not be permitted to play fast and loose.
    PPEAL from the Eleventh District Court for the Parish of Natchitoches. Pierson, J.

      Chaplin, Brazeale & Chaplin for Plaintiff and Appellant:
    A party to an authentic act will not be permitted to establish its simulation by parol, nor to contradict the act. Thenruer vs. 'Wiesinburger, 10 An. 125.
    As between parties and their heirs (other than forced heirs of the vendor) the only admissible evidence of the simulation of a formal written contract is a counter letter. Hebert vs. Lege, 29 An. 511, 512.
    The retention of possession by the vendor (upon which the District Judge bases his decision) is a badge of simulation so far as “respects third persons,” and, as against such third persons, the parties must produce proof that they were acting in good faith, and establish the reality of the sale. O. O. 2480. But, we repeat, that as between the parties themselves and their legal representatives the act makes full proof, and its reality can not be disputed by parol. 29 An. 511; 4 La. 167; 8 An. 154; 4 An. 487; 9 La. 566; 3 R. 457.
    This rule is applicable to private acts as well as to authentic deeds. Anderson vs. Benham,40An. 336.
    The Code is express, that parol evidence shall not bo admitted against or beyond what is contained in the acts, nor on what may have been said before at the time of making them, or since. R. O. O. 2276, 2242, 2244, 2238.
    The rule of exclusion is consecrated by law and jurisprudence that, as between the parties to a written act, the only admissible evidence to prove simulation is a counter letter. Oarey vs. Richardson, 35 An. 505.
    Conversations or understandings anterior to the date of the instruments attacked are presumed to be included in it. Ibid.
    The unbending jurisprudence of this court does not allow a parly to vary or destroy his own voluntary declarations or written agreements by any thing short of written evidence. Ibid.
    The rule not only applies to immovables, but also such as concern movables. Ibid. Affirming 12 An. 740; 7 R. 96; 5 R. 111;2L. 48; 4 An. 441; 5 R. 327; 12 An. 857; 16 An. 150.
    Judicial records can not be impeached or contradicted by verbal evidence. 82 An. 974; 3 An. 631; 27 An. 401.
    A party to a suit is not permitted to judicially allege a state of facts so contrary to, and inconsistent with, those set up in a former suit between the same parties, that if the allegations in the one suit be true, those in the other must necessarily be false. 37 An. 107; 31 An. 158; 33 An. 1198; 35 An. 744.
    The law holds parties to their allegations of record, and does not permit them to falsify what they have solemnly declared to be the fact, etc. 40 An. 186
    Plaintiff can not proceed at the same time via ordinaria and via executiva attempt it the latter wiil be dismissed at his cost. 3 N. S. 494, 655; 8 H. S
    A creditor changes the proceedings via executiva to those via ordinoA'ia when ha prays for judgment against his debtor who has enjoined * * *
    Judgment is to be given as in an ordinary suit affecting the debtor’s property with a general mortgage. Nor can he object, both being before the court and issue joined between them, to want of service of citation and petition. 16 La. 100; 19 L. 372; 3 An. 150; 32 An. 1285; vide Loque’s Digest, p. 274; Yerbo executory process.
    Damages are recoverable for an illegal and tortious seizure. 17 An. 20; 8 La. 33.
    Where the notarial act evidencing the contract, read and signed by the complainant, discloses fully and’truthfully its nature] and object with all its substantial qualities, the party can not set up error on these points. 37 An. 553.
    The proof of error, to have effect against the recitals of a notarial act, must be clear, cogent and convincing. 31 An. 695.

      The pleas ol error of fact, of fraud and of want of consideration, will not avail to> defeat the enforcement of a written and honorable obligation, unless they are clearly proved. 31 An. 695.

      Scarborough & Carver and Jack & Dismukes for Defendant and Appellant :
    “ If the cause expressed in the consideration should be one that does not exist, yet the contract can not be invalidated if the party can show.the existence of a true and sufficient consideration.” C. 0., Art. 1900; 30 An. 966; 33 A.
    Inadequacy of price and retention of possession by the vendor indicate a pignorative contract tinder guise of a sale, and its true character and object may be shown by parol. Howe vs. Powell et al., 40 An. 307.
    It is competent to show error in an act of mortgage by parol. 36 An. 549.
   The opinion of the court was delivered by

Bermudez, O. J.

The object of these suits is an adjustment of the' respective liabilities of the parties inter se.

Flanner having issued two writs, one of execution, another of seizure and sale, against Johnson, the latter enjoined them, claiming to be entitled to credits which were not allowed him. Flanner' answered, that the transactions "relied on by Johnson to set up his. claims, were not real, but simulated, concluding, in a reconventionah demand, with a prayer for a judgment against Johnson, for the whole amount due him.

The differences of the litigants were most extensively inquired into, before a jury, who returned a verdict, crediting Johnson with certain sums, and liquidating Flanner’s claims to the difference, $4520 with interest.

From the judgment rendered on the verdict, Flanner appealed, and Johnson, answering, prays for increased credits.

It appears that in 1887 Flanner sold certain lands to Johnson for-$9290.72, which were settled in four notes payable at one, two, three and four years.

On the maturity of the first note, Flanner brought suit, via ordinaria, against Johnson, alleging the nature of the transaction, the sale, in consequence of which the notes had been issued.

Johnson came forward, confessed judgment and paid $1250, on account, obtaining indulgence.

Subsequently, Flanner, remainingunpaid, issued execution, levying; upon the property sold and other property.

Johnson enjoined on the grounds, that he had not been credited with the previous payment of $1250, and that Planner had no right to exact payment without having paid the indebtedness assumed by him in the act of sale to him and his vendor, which amounted to $7355.81, part of which was represented by vendor’s notes figuring $3500, which had been placed in his possession by Johnson, who owns them, to secure a loan of $1800, whifch had been paid back, the notes not being, however, returned, etc.

Planner answered the petition for an injunction, admitting the proceeding in which the confession was made, the payment of the $1250, and the issuance of the Ji. fa. and the seizure; but charges that he is not liable for the indebtedness assumed by him in the act of his vendor, Sers, which is a simulation, and that the consideration of the transaction was a different one. He further avers, that the Sers’ notes have no real existence, and were surrendered to him because of that fact, and not to secure a loan; that it had been intended to insert a clause in the act, exonerating him from all liability, but that, through error and oversight, it was not done. He further sets up his claims against Johnson on the notes by complaints of damages sustained in consequence of the injunction. He concludes by asking that the injunction be dissolved with damages, that he be declared not liable for the assumptions, and that the property seized be ordered to be sold for the whole debt, for cash, to cover the part due, and on terms of credit to correspond with the parts not ■due.

Before those issues had come to tr(fttl, Planner brought executory proceeding on the second maturing note of Johnson, with a credit of $200, averring the suit on the first note, the sale, and praying for the seizure and sale of the property, for cash, sufficient to pay the note sued on of March 9, 1889, attorneys’ fees, etc.

On the proper order, the writ issued, but was enjoined by Johnson on grounds substantially similar to those set forth in his petition for an injunction arresting the fi. fa.

Planner answered mainly as he did to the first injunction in avoidance of the responsibilities resulting from his assumptions.

The cases were consolidated and so tried.

The plaintiff offered documentary evidence in support of his averments to show that he was entitled to the credits claimed and that Planner had bound himself to pay debts of his vendor, and that he should be held to do so previous to exacting payment of the notes sued on.

The defendant offered oral testimony to show the simulation alleged by him, and consequently his non-liability under the assumptions. The court allowed the testimony over plaintiff’s objections, which were reserved by bills and which were that parol testimony, between the pai’ties, is not admissible, but that a counter letter was the only legitimate proof, and even then, that by his judicial declarations of the reality of the transactions in which Johnson had issued the notes, Flanner was estopped from all contradiction of them.

It needs no discussion or reference to authorities to show that it-was error to have heard the oral testimony.

The case is one which is between the parties, and in which none of' the averments has been made which would have opened the door-for such proof.

Besides, the judicial declarations which Flanner has made in the-two suits and the exercise of the rights which he asserted therein,, and which affirm and reaffirm the sale from him to Johnson as a reality, effectually estop him from denying its seriousness. He cannot be permitted to play fast and loose.

There is no evidence showing that a clause had been intended to • be inserted in the act for his relief, and that by error and oversight-it was omitted.

It may not be out of place to say that during the trial, feeling that written evidence was necessary in such a case, he averred the existence of a counter letter, in a supplemental answer, but that he afterward abandoned the claim 'to such proof.

It appears that Flanner assumed the four notes due by his vendorSers for $3500; that these notes are the property of Johnson, and are therefore due by Flanner, and that, by as much, they offset Planner’s claims against Johnson.

The manner in which those notes came to be in Flanner’s posséssion is differently stated by Johnson and Flanner, but after hearing-them and the other proof in the record on the subject, the jury and the judge rightly preferred Johnson’s statement.

Flanner ought to have credited Johnson with the $1250 paid by him in the suit on the first note and Johnson is entitled to a credit-of $200 on the second note sued on in the executory proceeding-Johnson is further entitled to offset the claim of Flanner by the-notes of Sers, which Planner owes by assumption and which are Johnson’s property, amounting to $3500.

The verdict of the jury and the judgment of the court on it have done justice, as far as they go, but Johnson is entitled to a further reduction of $200, which puts down his indebtedness to Planner at $4340.73.

It is therefore ordered and decreed that the verdict of the jury and the judgment thereon be amended so as to entitle Johnson to a reduction of Planner’s claim against him to $4340.73, instead of $4540.73, and that, thus amended, said judgment be affirmed; the costs of appeal to be paid by Fl&nner.


author: Fenner, J.

text:
    No. 10,535.
    P. L. Buras et al. vs. William J. O’Brien.
    Plaintiffs in this petitory action must depend on the strength of their own title. They have established no title, either by conveyance, or by accession, or by prescription.
    APPEAL from the Twenty-Fourth District Court, Parish of Plaque-mines. Idvaudais, J.

    E. Howard McCaleb for Plaintiffs and Appellants:
    Tn 1841 plaintiffs’ predecessor obtained patents from the United States for a narrow strip of land, situated on the west bank of the Mississippi river, at the Jump, in the parish of Plaquemines, known as sections 7 and 8, in township 21, bounded by the Mississippi river in front and West Bay in the rear. The deposits and overflows of the river have filled up this bay, made of it high land and united it to the main land in front.
    1. Plaintiff is entitled to this made land by right of accretion. It. C. C., Art. 509; M. 216; 10 It. 99; 10 Pet. 662; 23 Wall. 46.
    2. An island subsequently joined to the main land becomes the property of the riparian proprietor. K. C. G. 518,514, 515; Marcade, T. 2, ISTos. 437, 438,439, 440.
    3. Plaintiffs have shown possession for thirty-years, and for more than ten years in good faith, under a just title translative of property, as owners, are entitled to recover. It. O. O. 3478.
    4. An apparent good title is sufficient to authorize a judgment against a defendant who pleads a general 'denial and sets up no title in himself. 3 It. 206, 317; 5 It. 510; 7 It. 149; 10 It. 99; 12 A. 748.
    5. Actual prior possession is sufficient to maintain ejectment against a mere trespasser. 14How. 292; 5 Saw. 475.
    6. Defendant,having entered by permission of plaintiff’s ancestor, can not now question the validity of plaintiff’s title, nor change the nature and origin of his original possession, nor come in competition with those under whom he holds, It. O. O. 3441, 3446, 3514; 9 It. 215; 10 An. 542; 1 Saw. 15.

      F. G. Zacharie for Defendant and Appellee:

      il Islands and sand bars which are formed on the beds of navigable rivers or streams, and which are not attached to the bank, belong to the State, if there be no adverse title or prescription.” R. C. C., Art. 512.
    A person entering- land in the United States Land Office, paying the price therefor and receiving his certificate therefor, going upon the land, occupying it for fourteen years, and paying taxes on it, can not be regarded as a mere trespasser without title.
    Against such a person, plaintiff in a petitory action must recover, not by the weakness of his adversary’s title, but the strength of his own; not even in the absence of any title but that based on possession. Possideo quia possideo. 2 H. 267; 12 3r. 81; 5 L. 178, 188; 10 L. 351; 14 L. 14; 1 R. 242, 378, 421; 12 R. 371; 2 An. 246; 13 An. 114.
    To recover in a petitory action, plaintiffs must show title and make it out satisfactorily both as to title and identity. 10 31. 293; 12 K. 46.
   The opinion of the court was delivered by

Fenner, J.

Plaintiffs, claiming title to certain sections of land designated as sections 7, 8 and 9, bring their petitory action against defendant alleging that he is in possession of a portion of said lands to which he wrongfully and falsely sets up title.

Defendants answer by a general denial.

There is no dispute as to plaintiffs’ ownership of sections 7, 8 and 9. The question is whether the land occupied by defendant is embraced within those sections. The sections were established by a U. S. Survey made in 1836 by Connelly, U. S. Surveyor.

We agree with the judge a qua that Connelly’s field notes, taken in connection with the evidence in this case, sufficiently show that his lines toward the south only ran to a sea marsh bordering a sheet of water known as West%ay, and that, at that time, the land, now in controversy, did not exist as dry land, but lay within, and was covered by the waters of West Bay. The function of Surgi, the surveyor in this case, was simply to run out and define the lines established by Connelly. There is much confused and contradictory testimony as to the errors committed by Surgi, which we need not discuss, but when he runs the lines in such manner as to embrace within them the land in controversy, which then undoubtedly lay under the waters of West Bay, it is clear he runs lines which Connelly did not and could not have run.

We take it, therefore, to be very certain that this land was not included within the lines of these sections as established by the original survey and as patented to plaintiffs’ authors by the United States.

Plaintiffs’ claim of title by accession resulting from accretion seems to us equally unfounded. The evidence shows that, after the Mississippi river found a new channel through what is called the Jump, this land was formed, by the deposits from its overflow, as an island in West Bay. Between the waters of West Bay and the southern line of plaintiffs’ sections, as established by the field notes of Connelly, there was a stretch of sea marsh, which was ceded by the United States to the State of Louisiana under Act of Congress of 1849. Therefore, the State, and not plaintiffs, was riparian proprietor on West Bay, and no accretion there formed could benefit plaintiffs. Nor were plaintiffs riparian proprietors on the Jump, in, front of this land. The Jump runs north and south, and this land lies south of plaintiffs’ line, running perpendicularly to the Jump.

Plaintiffs’ claim of 'title by prescription has no merit. The evidence is confused, contradictory and, for the most part, incomprehensible. It establishes no such certain and continuous possession as is necessary to support the plea. Defendant has been in possession for more than ten years and has been paying taxes on the land.

We can discover no ground for disturbing the conclusion reached by the District Judge.

Judgment affirmed.


author: McEnery, J.

text:
    No. 10,489.
    Succession of Mrs. Louise Latchford.
    Whore person applies to a building association to build a house for him, and tlic association clears the title to the lot on which the building is to be erected by extinguishing the vendor’s lion thereon, and builds the house on said lot* which is accepted by the applicant, who sells said lot and improvements to the building association, which afterward, according to an agreement, sells the same property to the person for whom it cleared the title to the lot and built the house for the sum which it advanced on the property, with a premium thereon of 10 per cent, as the price, with a vendor’s privilege and special mortgage retained, the contract is a legal one, and the premium of 10 per cent, is not interest, and is therefore not usury.
    Where a party indorses a note and the maker takes the benefit of the insolvent laws, and the holder of the note takes part in the concurso and votes for tlic discharge of the maker of the note, the indorser is released.

      APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Aug. Bernau for the Administrator:
    Acts 151 and 115 of the General Assembly o£ 1888, relating to building companies or homestead associations, are unconstitutional and void. 35 An. 682,1141.
    A building and loan association is an organization created for the purpose of accumulating a fund from the monthly subscriptions or savings of its members, to assist them in building' or purchasing- for themselves dwellings or real estate by loaning to them money from the funds of the association upon good security. Vol. IX, Encyclopedia of Raw, pages 604-627. Such an association may loan out, if authorized by law, its funds at a premium to its own members without violating the usury laws, as in such cáse the borrower is the lender. 88 Pa. St. 211-216; 8th Atlantic Rep. 43.
    The loaning of funds by a building society to its members at a “ fixed ” rate of premium is usury. 95 Pa. St. 122. Nor have such associations authority to loan money to strangers at usurious rates. (Encyclopedia of Raw; Rawson’s Rights, Remedies and Practice; “Building Societies.”)
    In estimating the majority in number and amount necessary to discharge an insolvent from debt, only unsecured creditors are to be counted, and only those who have appeared before the notary and certified on oath their respective claims to be true and legitimate.

      Henry P. Dart for Loan and Building Company, Opponent and Appellee:
    i.
    1. Act 152 of General Assembly of Rouisiana of 18S8, page 212, recognizes and legalizes all building companies, then in existence in this State, as effectively as if each company had been designated by name.
    2. The Mutual Roan and Building Company of New Orleans, having been established prior to the passage of this act, is protected by its provisions.
    3. As a logical result the argument of usury can not be advanced against any of its contracts, but such contracts, under the express language of Act 115, p. 177, of the same assembly, are to be. treated as contracts of sale, and its loans are protected by the vendor’s privilege.
    4. Usury in any event should be sjiecidihj plead; that charge can not be made in argument without such plea.
    II.
    1. Ratehford owned an unimproved city lot. She applied to the Mutual Roan and Building Company for a sum sufficient to pay an outstanding mortgage note thereon and to build a home for her own occupancy. She agreed to sell the lot to the company, and on its part it was agreed that it would take up that note and build the required home. It was further agreed that the company would then resell to her the lot and improvements thus made at a sum equal to its advances, with 10 per cent, added, the same to be repaid in 120 monthly instalments at 8 per cent, interest. XYe contend that the entire transaction was a contract to buy and sell.

      2. The title to the vacant lot was thereafter transferred to the company, and it complied with all its obligations, and upon completion of the house delivered possession thereof to Latcliford, the title, however, remaining in the company’s name.
    .8. She commenced to repay the total sum agreed upon, but died shortly afterward and before retaking title to the property. By consent the property was sold in the succession under an order of the Probate Court, which fully reserved the legal rights of all the parties on the proceeds. The court must, therefore, examine the contract just as if the original parties were litigating under it.
    1. It is not through any fault of the company that the original contract was not carried out, and it is therefore entitled to the proceeds of the sale up to the amount actually due under said contract when the property was sold. This sum includes interest on the defaulted instalments and the attorney and notary fees incurred in the examination and transfer of the title, all of which she, by her agreement, engaged to pay.

      Howe & Prentiss for Joseph Harz, Opponent and Appellant:
    1. The question of the right to file amended opposition discussed.
    2. Where the holder of a note votes in favor of'the discharge of the maker, under the insolvent laws, and the discharge is granted on the joint vote of the holder of the note and other creditors, the surety on the note will not be discharged. R. S., Sec. 1799; C. O. 2177, 8087; 3'3 An. 1155,1158; 86 An. 760, 761; 12 An. 520. ■
    Buck, Dinkelspiel &Hart for the Germania National Bank, Opponent and Appellant:
    1. An answer which simply amplifies a general denial may be filed at any time. 36 An. 785.
    2. A discharge in insolvency can not be granted save by the affirmative vote of a majority in number and amount of all the creditors. Revised Civil Code, 2177.
    3. The certificate of the notary to the meeting of creditors of itself is the discharge, no judgment being necessary. 39 An. 576.
    1. A loan of money to purchase or improve property does not give to the lender the vendor’s privilege. Succession of Benjamin, 39 An. 612.
    -5. Where a building association fixes a minimum premium, below which money will not be loaned, the contract then becomes usurious if this minimum exceeds the legal rate of interest. 95 Pa. 122.
   The opinion of the court was delivered by

McEnery, J.

Mrs. Louisa Latchford died in New Orleans on the 25th day of October, 1888.

The administrator of her succession filed his final account, to which there were several oppositions.

The succession property comprises a lot of furniture, a claim against the Germania Insurance Company, and a piece of real estate in the City of New Orleans.

The last item is the principal portion of the succession and from which arises the most serious opposition.

From the judgment of the lower court maintaining the opposition-of the Mutual Loan and Building Association and Charles Franeke, and the opposition of the Germania National Bank to the claims of Joseph Harz, and the denial of the opposition of August Bernau, attorney, the administrator and the opponents, Harz and Bernau, have appealed.

The decedent sold to the Mutual Loan and Building Company, of New Orleans, on the 21st of May, 1888, an unimproved portion of ground in the Second District of this city. The act of sale was-passed before John R. Legier, notary public, and the price was $750. The act was duly registered in the Conveyance office of Orleans parish.

This sale was the first step toward the consummation of a transaction whiph begun by the decedent’s application, dated New Orleans, April 16, 1888, addressed to the president and board of directors of the Mutual Loan and Building Company: “Gentlemen, I hereby make application for $2400 on the monthly payment plan in accordance with your usages, rules and regulations, for the purpose of' erecting a cottage costing $1650, and $750 to pay note due on- the property, as follows: Canal, between Alexander,' Murat and Cus-' tomhouse streets. (Signed) L. Latchford, St. David and Customhouse.” Which application was accepted by the following written endorsement: “We, the undersigned members of the committee on building and real estate, respectfully report that we have carefully examined the premises above described and approve the loan with 10 per cent, added. (Signed) H. Wellmann.”

This approval by the building committee was signed on the same day or day after the application was made.

Previously, Mrs. L. Latchford had purchased the property in question from one Bérgamini, on the 29th of February, 1888.

The note referred to in the application was a vendor’s note, given for the price to Bergamini. This note was taken up by the Mutual Loan and Building Company with its own money before it purchased the property, and the company being the holder of the note at the ■time the property was purchased by it, constituted that note the consideration mentioned in the sale.

Having purchased the property, the company, on the 15th of May ■of the same year, entered into a contract with Otto Walther, whereby said Walther contracted to build for said company the house contemplated by the application, on or before the 1st of Jupe, 1888, for the sum of $1650, the same to be built to the satisfaction of the ■company.

The house was finished and Mrs. Latchford occupied it. Her death occurred on the 25th of October, 1888, and she was intestate.

The Mutual Loan and Building Company was incorporated February Y, 188Y, and its charter was amended February 8, 1888, the charter and amendments being by act before J. R. Legier, notary public, and -duly recorded.

The original charter was offered in evidence. In Art. 3 the objects of the corporation are declared to be for the building of dwelling houses or other buildings, according to such ideas, plans, or specifications, for any person so desiring and possessed by legal and valid title of a lot of ground within the city limits, and such person or persons to refund the price thereof to said corporation in monthly instalments equivalent to 10 per cent, per annum on the deferred payments or unpaid principal.

Also, the renting, purchasing, and sale of homesteads, and the loaning of funds on mortgage or other real estate security in the Oity of New Orleans.

The corporation is a stock corporation, the capital stock being $50,000, divided into two thousand shares of $25 each.

In Art. 1 it is given authority to hold, receive, lease, purchase, and convey under its corporate name property both real and personal, to loan money on security, to make and appoint such officers, directors, and agents as the necessity and convenience of the corporation may require, and to make and establish such by-laws, rules, and regulations for the [proper management of its affairs as may be necessary and proper, and to do and perform all other acts and things which may be requisite and necessary to carry out the objects and purposes of the corporation.

In Art. 6 it is provided that should any borrower from this company fail or neglect to pay his or her monthly instalments at such times .as the same may fall due and as may be provided for in his or her contract, such unpaid instalments shall .then become part of the principal and bear interest at the same rate.

Art. 7 provides that all expenses of attorneys, notaries, architects, and recorders in making or canceling loans, shall be paid by the respective borrowers before title is passed to them, and no title shall be executed until said charges are paid.

Art. 10 provides that any borrower shall have the right at any time to reduce said indebtedness by paying on account a sum of not less than $10, and all payments on account of capital shall at the end of each borrower’s current year be' deducted from the principal, and the payments on account of the principal and interest shall thereafter continue on the reduced capital without curtailment of the original time within which the loan was made payable.

Art. 2 of the by-laws creates the different committees necessary to carry on the business of the company, and among others a building and real estate committee, whose duties are to examine all houses which are being erected by the company, and to see that they are built in strict conformity with the specifications. They shall also appraise any house or lot offered to the company.

Art. 7 provides that no real estate shall be purchased until the saíne has been appraised, and the purchase thereof recommended by the building and real estate committee, and the title thereto approved by the attorney of the company. The president shall then, upon receiving from the applicant such sum as may be fixed by the board of directors upon the recommendation of the building and real estate committee, buy the property in the name of the company, and thereafter, in due course, convey same to said applicant, upon such terms and conditions as may be fix.ed by the board of directors.

Art. 8, Sec. 1, provides that any person who owns or may acquire a lot of ground can obtain a loan from the company for building purposes, if the said lot be acceptable to the company, provided he transfers to the company the said lot free of all encumbrances, and thereafter a sale shall be made to him in due course, as provided in Art.'7, and after the building is completed.

After the house was erected, she, averring that she did not have enough money to pay the attorney’s and notary’s fee for the examination of the title and the passing of the act of sale, requested that the property be not immediately retransferred to her.

The property was to remain in the company’s name until she-refunded the amount borrowed and the 10 per cent., but she had the right to demand the transfer at any time, subject to the vendor’s lien of $2640.

The company was ready to transfer it to her at any time after the completion of the house by the company.

Her instalments and interests fell due on the 18th of each month, and when it was not paid it was charged up and added to the $2640, and anything paid after that date was deducted from the total.

The cost of erecting the house was $1650, and was paid by the company, making a total of $2400 paid by the company for account of Mrs. L. Latehford.

It is a rule and regulation of the company to add 10 per cent, to the amount 'paid out, and there was a special agreement to that effect with Mrs. Latehford.

The whole sum is then divided into 120 monthly instalments,, bearing interest at the rate of 8 per cent., payable also monthly, .and forms the consideration or price at which the company agrees to sell to the borrower or purchaser.

At the time of Mrs. Latchford’s death the real estate in the inventory was in the name of the Mutual Loan and Building Company. It was, however, inventoried as the property of Mrs. Latehford, and the following entry was made in the inventory after describing the property: “By an act before J. R. Legier, notary public, dated May 21, 1888, the late Mrs. Louisa Latehford,transferred to the Mutual Loan and Building Company, of New Orleans, the said property for the sum of $'750 cash. It appears, however, that the said sale of the property was made to the said association for the purpose of securing a loan of money for the purpose of erecting a building on the above described property, which was then unimproved, which sum of money originally amounted to the sum of $2640, less 10 per cent., to-wit, $2316, part of which amount of money, namely, $150, was used to extinguish a mortgage note resting on the property, so as to clear the property and thus secure the loan by the company to Mrs. Latehford, and this $150, so apparently paid to Mrs. Latehford, was' never paid to her, but was used as above set forth to extinguish a note due by her so as to better secure the company. The above amount is subject to reduction by payments.” (The Mutual Loan andJBuilding Company was not party to this inventory.)

The administrator provoked an order of sale on November 20, 1888, requesting that the property should be sold on terms of one-third or more cash, and the balance on one or two years’ credit at 8 per cent, interest at the purchaser’s option, secured by vendor’s lien and privilege.

The sale was asked to pay debts, and the Mutual Loan and Building Company was classed as a creditor for the amount of $2450. On the 26th of November, 1888, the administrator obtained a rule upon the Mutual Loan and Building Company, alleging that, though apparently belonging to the said company, the real property aforesaid is verily the property of the succession, for the reasons set forth in the said inventory, and referring to an order previously rendered, directing a sale at public auction to pay debts, asked that the company show cause why the property should not be sold by the administrator of the succession.

This rule was not tried, but on the 14th of December, 1888, the following joint motion was filed in the said succession:

“ On motion of H. P. Dart, attorney for the Mutual Loan and Building Company, of New Orleans, and of Aug. Bernau, attorney for P. H. Mentz, administrator of the succession of Louisa Latch-ford, and on suggesting to the court that both said company and succession claim title to the real property herein inventoried as belonging to the succession, and on further suggesting to the court that your Honor has heretofore ordered the sale of the said property, in order to pay the debts of the succession, and it is necessary that the said property be sold at public auction, and that the rights of the respective litigants on the proceeds of said property be hereaftergdetermined. It is ordered that Ben. Onorato, auctioneer, sell at public auction, on the terms set forth in an order of sale herein granted, on the 20th of November, 1888, the real property herein inventoried, and that he have power to make title and sign all necessary deeds to the purchaser, and that, after deduction of the costs and expenses necessary for the sale of the property, it be turned over to said Mutual Loan and Building Company, the proceeds of said sale, to the ■extent that said company lay claim thereto, to be held by the said company until it shall have been finally determined by this Honorable Court, in a proper proceeding to be hereinafter brought by the administrator of the succession, whether the said company is and was entitled to retain the property or the funds realized by the sale ■of said property, or has or had any claim, lien or privilege to or upon the same or any part thereof, or whether the money thus ordered to be paid over and held by said company belongs to the within succession, or whether the succession has any claim, lien or privilege to said money turned over to said company, or to any part or portion thereof.

The whole without prejudice to the rights of either of the litigants, the movers herein, and with full reservation of thé defences, rights, etc., the object hereof being solely to sell the property aforesaid, to prevent the destruction thereof, which is now in progress, owing to the same being now unoccupied and the insurance being in jeopardy.

A public auction was accordingly made, and the auctioneer filed his proces verbal on January 19, 1889, showing that the property was adjudicated to D. L. Bergamini for $2700.

The administrator in his account allowed the Mutual Loan and Building Company the sum of $2300.90. This company opposed the account, on the ground that under the contract with the deceased, Mrs. Latchford, it was entitled to have the account amended, and to be placed thereon as a privileged creditor for the amount of the proceeds ot the real estate, to the amount of $2564.42, with $30 notary and attorney charges and 8 per cent, on the whole total paid.

The Germania National Bank, claiming as an ordinary creditor, opposes the account on the ground that the Mutual Loan and Building Company has no privilege or mortgage on the real estate belonging to the succession. It also opposes the claim of Joseph Harz and denies that he is a creditor of the succession.

The opponent, August Bernau, asks that his fee of $300 be increased to $500.

There is no opposition to the claim of Charles Franke.

The administrator contends that the contract between Mrs. Latch-ford and the building company was usurious, as it added 10 per cent, premium 4o the capital invested by the company in the property of Mrs. Latchford, and that 8 per cent, per annum, payable in monthly instalments, had [been charged on the sum of $2640, when only $2400 had been invested.

The charter and by-laws of the company are in evidence. Mrs. Latchford in contracting with the company did so with reference to the same, and as the contract was made in strict conformity thereto, .they form a part of it. There is no allegation, nor is there any evidence that there was any departure from the charter or the rules- and regulations of the company.

Briefly stated the contract was that the company undertook to-build a house for Mrs. Latchford, for a certain sum. In order to secure the company against prior liens on the property, according to its-rules, it paid the vendor’s privilege on a certain special mortgage resting on the property. As a compensation for 'services rendered the company added 10 per cent, to the capital it invested in Mrs. Latchford’s property — the payment of the vendor’s privilege and the cost of the building. Mrs. Latchford agreed to sell the unimproved property to’the company for the sum of $750, the amount of the vendor’s note paid by the company.

The property was afterward to be transferred to Mrs. Latchford,. the price being the money so advanced for the clearing of title to the lot, and the cost of the building and the 10 per cent, added, the company to retain the vendor’s privilege and special mortgage, and giving Mrs. Latchford ten years in which to pay said price, in monthly instalments, bearing 8 per cent, interest per annum.

The company extinguished the mortgage note due by Mrs. Latch-ford for the purchase price of the lot upon which the building was-to be erected.

It amounted to - $750 00'

The building erected cost - - - 1,650 00

$2,400 00

To this was to be added 10 per cent. - - 240 00

$2,640 00

Which was the price Mrs. Latchford was to pay for the sale of the house and lot to her.

The contract was legal. There is nothing in it contrary to law. Mrs. Latchford had a perfect right to sell to the company, and the company to again sell to her for a price agreed upon.

The. company charged for its'services in erecting the building, as a compensation for time, labor and skill, and its entire responsibility in the superintendence and construction of the same, a premium of 10 per cent., which was to be added as a part of the price to the amount invested.

It was not charged for the use of money, or for the creditor to forbear in the prosecution of his claim, but was a brokerage paid or charged at one time for the services of a builder. In no sense can it be considered as interest paid to a creditor for the use of his capital for a specified time.

Mrs. Latchford made several payments which, reduced the amount-she owed to the company to the sum of $2564.42.

For reason's satisfactory to Mrs. Latchford and the company, the property was not according to the original agreement sold to Mrs. Latchford. It seems the delay was at the request of Mrs. Latchford. At her death the property was placed upon the inventory in her succession. The legal title was in the company.

It has never parted with its title in the property to the succession. The equitable title, however, was in the succession as it had been in Mrs. Latchford, and the administrator, on complying with the terms of her agreement, could have the title transferred to the succession.

The company would, according to its rules and regulations and the agreement or contract with Mrs. Latchford, have retained the vendor’s privilege.

The property was sold by consent of parties, the proceeds to remain in lieu of the property. The company, by this agreement to sell, did not waive any of its rights, nor did the succession of Latchford acquire any. If the succession of Latchford desires the ownership of the property it must pay the price according to the terms agreed upon. Until this is done, the building company has a right to hold the property as a security for the debt.

As the property was sold by consent of all parties, and the title made to them, the judge a quo very properly rendered a decree so as to cover the agreement and protect the purchaser against the succession and the building company.

Joseph Hart was placed on the account as an ordinary creditor on a note for $1553.54, with interest and costs of protest. . H. Hamblock executed this note, which was indorsed by Mrs. Latchford.

The claim was rejected on the ground that Hamblock had gone into insolvency and had been discharged, the creditor, Harz, having been a party to the proceedings in the insolvency and having voted for the discharge of Hamblock, thus extinguishing the debt and releasing the surety, Mrs. Latchford.

The proees verbal of the insolvent proceedings was offered in evidence and objected to by counsel for Harz, which objection was sustained. Subsequently the Germania Bank, offered an amended opposition, to which objection was made by Harz’s counsel. The amended opposition was allowed.

In the original opposition the bank denied that Harz is a creditor of the succession for the amount for which he was placed on the account or for any amount whatever.

The supplemental or amended opposition of the bank alleges that if Harz had ever been a creditor of Mrs. Latchford she had been released by the discharge in the insolvent proceedings of Hamblock.

The supplemental opposition was but an amplification of the original opposition by the setting out of the particular fact which destroyed the claim of Harz, which had been denied to exist. It was properly allowed. The prooes verbal of the insolvent proceedings was offered in evidence and admitted under the amended opposition. It was properly received for the purpose of showing the fact that Ham-block had been discharged, and how the creditors voted in the proceedings.

Harz contends that there was a majority in number and amount in favor of the discharge without his vote, and that when he voted there was not a sufficient number and amount to grant the discharge of Hamblock, and therefore the discharge was unaffected by his vote.

It is true the discharge was not granted alone by Harz, and the other creditors could have granted the discharge against the vote of Harz. But he voted for the discharge,'thus contributing to it. The discharge was the express will of all the creditors voting for it. It destroyed the debt as originally contracted in holding the debtor personally liable; released him, and placed it upon the proceeds of the sale of his effects.

The surety was discharged'. Lobdell vs. Niphler, 4 L. 294; Brown vs. Roberts, 14 An. 259.

The áttorney, Aug. Bernau, considering the amount of the succession, received a liberal fee, and it ought not to be increased.

Judgment affirmed.