text:
    No. 2926.
    Josephine Hale, Executrix, v. William J. Salter et als.
    A suit by tbe executor of a succession to compel the heirs of said succession who have been put in possession thereof, to pay the commission claimed by said executor, is properly brought before another court than the Second District Court, which has only probate jurisdiction.
    Where the exception was, that plaintiff, having claimed in her first petition only one-half of the commission allowed by law to executors, could not, in a supplemental one, claim the whole commission;
    Hold — That she had the right to amend her pleadings, and that the exception could not be maintained.
    The law gives to the executor a compensation for his services, and the heirs can not deprive him of it by causing themselves to be put in possession after tlie executor has accepted the trust and qualified.
    Whore it was contended by the heirs that the executor’s claim for his commission had lapsed, because it was not demanded when the succession was turned over to them;
    Held- -That if he did renounce his claim, liis renunciation should have been express. It can not be inferred.
    Whore the heirs contended that they could not be called upon to pay plaintiff’s claim, because the law provides that the commissions of executors are based on an inventory, and no inventory was taken in this case, wherefore there are no means by which the amount due to the plaintiff can be ascertained;
    Hold — That the heirs can not by their own act prevent the executors from taking an inventory, and then refuse to pay them their commission. The executors should be allowed to show the value of the succession aliimde.

    Where letters testamentary have been issued by a court of competent jurisdiction to two executors, on their complying with the requisites of the law, and one of them takes the oath well and faithfully to perform his duties, as executor, and the other does not, the one who has not taken the oath is presumed to have renounced the trust, and the one who has qualified is entitled to the entire commission.
    APPEAL from tbe Sixth District Court, parish of Orleans. Oooley, J.

      Gibson & Austin, Lábatt <& Aroni, for plaintiff and appellee. T. Gilmore & Sons, for defendants and appellants.
   Morgan, J.

Richard Salter appointed Thomas Hale and Peter Marcy executors of bis last will, and made them detainers of Ms estate. After his death the will was probated, and immediately thereafter tbe executors named presented their joint petition to the judge of tlie Second District Court of New Orleans, where the succession was opened, in which they prayed to be allowed to qualify as executors; they also prayed for an inventory. Their prayer was granted. Thomas Hale alone took the usual oath.

Before the inventory was commenced .the heirs of Salter, all of age, brought suit against Hale and Marey, executors, alleging that they were willing to pay the debts of the succession which had fallen to them, and the only legacy left by their ancestor, and alleging that there was no need of an administration of the succession, prayed to be put in possession of the estate.

Hale and Marcy, in the same answer, said that they made no objection to the granting of petitioners’ prayer, and submitted themselves to the judgment of the court. The heirs were ordered to be put in possession ; and thus the duties of the executors came to an end, without their having taken an inventory, filed an account, or done any act of administration in the usual sense of the term.

Hale died, and his widow, and executrix of his will, has instituted this action against the heirs of Salter, claiming, in behalf of her husband’s succession, the executor’s commission of two and one-half per cent, on the value of the Salter succession. She claims the whole commission allowed by law, because her husband alone qualified, that is, took the oath as executor.

The defendants except to the jurisdiction of the court of the first instance raiione materia, claiming that they should have been proceeded against in the Second District Court, which has exclusive jurisdiction of the probate of wills, the appointment of executors and the rendition of their accounts to the Second District Court.

It is because of this exclusive jurisdiction of the Second District Court that it was proper to institute this proceeding before another tribunal.

This is not a suit for the probate of a will, the appointment of an executor, or the rendition of an account. It is an action to compel the heirs of Salter to pay an obligation which, it is alleged, they assumed when they took the succession .of their father out of the hands of his executors. It could not therefore have been instituted in the Second District Court, which has only probate jurisdiction.

It was next excepted that plaintiffs’ petition discloses no cause of action. The plaintiffs may not succeed in their case, but it seems to us that when they allege an indebtedness on the part of the defendants for the causes herein declared upon, they set forth a sufficient cause of action to authorize a judicial investigation of their claim.

The third exception is, that in her first petition plaintiff only claimed one and one-quarter per cent., or one-half of the commissions allowed by law to executors, and that her supplemental petition claiming the whole commission should not be considered. Whether she is entitled to the whole of the commission or not is a question which will be treated of in another part of this opinion. But we think she had the right to amend her pleadings, which is-always in the discretion of the court when the cause of action is not thereby changed,'and to claim more in her supplemental petition than she did in her-first petition.

The defense to the demand on the merits is, first, that no commissions are to be allowed an executor who has not administered upon the estate intrusted to him, and in support of this proposition we are referred to articles 10B9, 1194, 1200, 1201, 1682, 1685 of the Civil Code, which provide that the administrator of a succession shall be allowed on the settlement of his account a certain per centage on the amount of the inventory of the effects of the succession committed to his charge; that the curator is entitled to a certain per centage on the amount of the effects of the succession, or of the portion by him administered according to the inventory; that if, at the rendition of his account by the curator, the judge be satisfied that the succession is entirely settled, he shall allow the curator a certain commission on the amount of the inventory of the effects of the succession, or of the portion by him administered, deducting bad debts; that if the succession is not entirely settled, and the administration thereof prolonged, the curator shall only be allowed commissions on the sums received or recovered during his administration; that an executor who has the seizin of the succession is entitled to a commission for his trouble and care on the whole amount of the inventory, making a deduction for what is not productive and for what is due by insolvent debtors; and the argument is that the commission allowed to executors, upon whom a general seizin is conferred, is not in the nature of a bequest or legacy, but is allowed, solely and exclusively, as a compensation for their care and trouble in administering the estate, and only in so far as they have administered. In support of this principle which, it is contended, runs through the jurisprudence of the State, we are referred to Succession of Day, 3 An. 624; Dupuy, 4 An. 570; Nicholson, 5 An. 358; Poindexter, 19 An. 22; Vogel, 20 An. 81; Day, 22 An. 366 ; 1 R. 400; 4 An. 388; 6 An. 486.

We have carefully examined the authorities cited, but we have not found among them all one which throws any light upon the question which we are called upon now to decide; nor have our own researches enabled us to find a case which positively governs the one at bar. What we are called upon to determine is this:

When an executor, with seizin, has accepted the trust reposed in him, and, in order to carry out the provisions of the will of which he is the executor, and otherwise administer upon the estate, obtains an order from the court of competent jurisdiction for the taking of an inventory of the property of the succession, and the heirs, before the inventory is taken bring suit against- him to be put in possession of their estate, offering to pay the debts and legacies, and he answers that he makes no objection to their demand, and judgment is rendered in their favor, is he precluded from claiming from the heirs the commissions which the law fixes as his compensation for his care and trouble in administering the property of the succession ?

We decide the question in the negative.

A testator has the right to give the seizin of his estate to his executor. The acceptance of this trust creates obligations on the part of the executor, for discharging which he is allowed compensation by law. His obligations are to carry out the provisions of the will, to take charge of the property of which the seizin gives him possession, and, after the performance of these duties, to deliver the succession over to the heirs. His compensation for the performance of these obligations is two and a half per cent, on the estimated value of the property belonging to the succession thus placed in his possession. The moment he accepts the trust, his obligations and responsibilities begin; the moment his obligations and responsibilities begin, his right to compensation attaches, and remains' until discharged, and this wiihout reference to the time the succession was in his hands. The heirs can at any time take the seizin from the testamentary executor on offering him a sufficient sum to pay the movable legacies. C. C. 1664. They may at any time accept the succession which has fallen to them and be put in possession thereof upon complying with the requirements of the law, but they can not do this without discharging the obligation due to the executor. The fact that the executor is willing to give up his trust immediately to the rightful heirs without forcing them to a litigation, and without entailing upon the succession the necessary costs of a tedious administration, is rather a reason why the executor’s fees allowed by law should be paid without hesitation, than an excuse for not paying them at all. Be this as it may, the law gives to the executor a compensation for his services and responsibilities, and the heirs can not deprive him of it by causing themselves to be put in possession, after the executor has accepted the trust.

The heirs argue that the executors’ claim for their commission has lapsed because they were not demanded when the succession was turned over to them. We do not think they have succeeded. If they did renounce, their renunciation must have been express; it is not to be inferred. So far at least as Hale is concerned, it is certain that he never renounced, for these commissions seem to have occupied his thoughts during the last days of his life.

In an addenda to written advice given in prospect of death to his wife under date of twenty-ninth of November, 1866, he mentions them thus:

“ Note. — Salter commissions due me.”

Thus showing that he considered them as a part of his estate. We therefore are of opinion that the executors’ commissions are properly due.

The heirs contend that they can not be called upon to pay, because the law provides that the executors’ commissions are based upon an inventory, and that as no inventory was taken there are no means by which the amount due them can be ascertained. We think the heirs can not, by their own act, prevent the executors from taking an inventory, and then refuse them their commission, because the inventory was not taken.

The executors should be allowed to show the value of th6 succession alivmde. The best evidence of the value of the succession is the estimate which the heirs put upon it. This evidence was introduced. The heirs objected to its reception and reserved their bill, but the court admitted it, and we think the ruling was correct. The heir, a witness in the case, who seems best informed upon the subject fixes the value of the estate, in round numbers, at $100,000. We have no idea that he over estimated its value, and we think the executors’ commissions must be reckoned on that basis.

The last question presented for our decision is this: If there are two executors to a will, both of whom unite in a petition to the court having jurisdiction over the succession confided to their charge, and alleging that they are desirous of qualifying as such, pray that an inventory of the succession property be taken, and the court orders that letters testamentary be delivered to them on their complying with the requisites of the law, and orders an inventory to be taken as prayed for, and one of them takes an oath well and faithfully to perform all the duties of executor, and the other does not, is the one who has not taken the oath presumed to have renounced the trust, and is the one who has, entitled to the entire commission.

We think yes.

The word qualify,” in its legal use, means to take an oath to discharge the duties of an office, and when an executor named in a will alleges that he desires to qualify as such, and the court orders that letters testamentary issue to him upon his complying with the requisites of the law, we understand that they are to be issued to him when he shall have taken the oath well and faithfully to discharge the duties of his trust. The presentation of his petition is the announcement that he is willing to accept the trust; the taking of the oath is the evidence that he has accepted it. It is then that letters issue to him ; then that his responsibilities begin; then that his rights attach. And when, after alleging that he proposes to accept the trust, and the court orders him to be confirmed therein upon his complying with the requisites of the law, and he does not comply with them, the presumption is that he has changed his mind. If there are two, and one qualifies, and the other does not, it must, we think, be assumed that the one who does not, at the last moment, is not willing to assume the responsibilities confided to him. These responsibilities then fall upon the co-executor. If the responsibilities are thrown upon him, the compensation goes with them; and the heirs can not deprive him of them by taking immediate possession of the estate. The right to the fees was earned when the responsibilities were assumed, and he can not be deprived of them by any action of the heirs.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Howell, J. Wyly, J., Wyly, J.

license: Public Domain

text:
    No. 2946.
    A. Lartigue v. Eliza White, wife of C. Bullitt, et als.
    See the .syllabus in the ease of A. Lartigue v. Clara White, wife of Carl Kohn, No. 2945. It is applicable to this one. The two case s must be taken together.
    APPEAL from the Fourth District Court, parish of Orleans. Theard, J.

      JS. Howard McOaleb, for plaintiff and appellee. Miles Taylor and William, Grant, for defendants and appellants.
    On Motion to Dismiss the Appeal.
   Howell, J.

For the reason given in the case of A. Lartigue v. Clara White et als., No. 2945,

It is ordered that the motion to dismiss be overruled.

Wyly, J.,

dissenting. I do not concur in the decision of the court on the question of jurisdiction presented in this case. I think the appeal should be dismissed for want of jurisdiction, the amount in dispute being less than $500.

This suit was brought by a creditor of the succession of Maunsel White, against his four heirs, who have been put in possession, to recover from them their respective shares of a debt due by said succession, the amount so due and in controversy between the plaintiff and each of the defendants being under $500, and the judgment rendered against each of them being under $500.

Whether the heirs were sued by the plaintiff separately, as they might have been, (C. C. 1376; C. P. 120; 5 R. 224;) or were all joined in the same action, can make no difference.

The prayer of the petition determines the character of the action.

The plaintiff prays that each of the four heirs of Maunsel White, deceased, be duly cited to answer, “and after due proceedings had, they be each of them condemned to pay nnto petitioner their respective shares of said sum of fifteen hundred dollars, proportionately to the amount received by them from the succession of Maunsel White, sr., with interest from judicial demand, etc.”

Regarding the prayer of the petition, what does the character of the action appear to be ?

Is it an - action against the defendants as representatives of the succession of their father; or is it an action against each of the heirs personally, for his virile share of his ancestor’s debt? If it be an action against them as representatives of the succession, of course the amount of the debt against the succession being $1500, is sufficient to give this court jurisdiction..

But if it be a mere personal action against each of the heirs to recover from him his virile share o.f his ancestor’s debt, the amount sought to be recovered from each being less than $500, this court is without jurisdiction. I think this is a personal action against each of the heirs for the amount for which he has become liable by entering upon and distributing the estate of the deceased.

The obligation sought to be enforced against each of these defendants had its origin in a quasi contract. It sprung into existence the moment they did the act of taking possession and distributing among themselves the property of the succession. That moment the legal obligation arose between the plaintiff, a creditor of the succession, and each of the defendants, whereby they became bound to him as his debtors, and he acquired a personal action against them.

Until the heirs went into possession, the plaintiff, although holding an obligation against the succession, based on the contract between him and its executors, had no cause of action against them. If the succession had remained in the hands- of its legal representatives and turned out insolvent, the plaintiff, although holding the obligation of the succession, would have had no legal obligation against these defendants — he would not have had a cause of action against them.

The object of this litigation is not to enforce an obligation of the succession, because the succession has not been sued. It is to enforce that obligation, springing from a quasi contract, which binds the defendants to the plaintiff as his debtors. And this illustrates that passage in article 1376, C. C., which says: “Thus the creditors of the succession must divide among the heirs the personal action which they have against them, and can not sue one for the portion of the other, or one for the whole debt.” Then if the amount of the obligation sought to be enforced against each of these heirs be less than $500, which it is, this court has no jurisdiction. The fact.that the petition contains several distinct independent demands against the several heirs for the virile share due by each, and the aggregate amount thereof exceeds $500, does not give this court appellate jurisdiction. Consent can not give-jurisdiction, and the cumulation of several actions in one can not give jurisdiction where it would not be had without it. In Duggan v. De Lizardi and others, 5 R. 224, this court remarked: “ There appears to us to be a difference between the obligation of heirs and of joint obligors by contract. The law portions among the heirs all the charges of the inheritance, and each heir may be sued, perhaps separately, for his virile share. Not so, the co-obligors by a joint contract. The Code requires that all should be sued together. In the one case it is a-condition of his inheritance that each heir shall pay his share of the debts, and he may exonerate himself by renouncing the succession; in the other, no one of the joint obligors can release himself at will.”

In Merritt v. Hozey, sheriff, and others, 4 R. 319, it was held that “no, appeal will lie from an action instituted against several defendants on an instrument by which they are bound severally, as sureties, for a fixed sum, where the amount claimed from each is under $300, tiiough the whole claim exceed that sum. The defendants can not give jurisdiction by joining in one appeal, where they would have no right to be heard separately.”

The case before us bears a striking analogy to the one to which I have just referred. There Hozey, the sheriff, and his sureties were sued for the aggregate amount of six hundred dollars, each one of the eight sureties binding himself in the bond for a share of the obligation of his principal; the amount assumed by each of the sureties being less than the amount required to give this court jurisdiction, it was held they could not by joining in one appeal give jurisdiction where they would have no right to be heard separately.

In that case the amount of the sheriff’s bond was six hundred dollars, and as to him this court had jurisdiction, although as to his sureties it had not, because the sum claimed of each of them was less than three hundred dollars.

Here the sum duo by the succession is $1500, and if the suit before ms was against the succession this court would have jurisdiction. But the suit is against each of four heirs for his virile share of that debt, and the amount claimed of each is a sum below the jurisdiction of this court.

I repeat that the obligation sought to be enforced in this suit, is the legal obligation that sprung from a quasi contract the moment the heirs accepted the succession and went into its possession. That fact alone caused each one of these defendants to become the personal debtor of the plaintiff, a cre'.itor of the succession, for his virile share of the debt of the estate.

This is the doctrine explicitly laid down in article 1372 C. C., which ■says: “The heirs by the fact alone of the simple acceptance of a succession left them, contract the obligation to discharge all the debts of such succession, to whatever sum they may amount, though they far exceed the value of the effects composing it.”

When I read the prayer of the petition by the light of this article and article 1376 C. C., I have no doubt as to the object of the action. It was to enforce that legal obligation incurred by the heirs alone by the fact of accepting the succession, against each of them for his virile share of the debt of the succession held by the plaintiff.

That virile share being less than $500, and being the amount in controversy between the plaintiff and each of the defendants, this-court is without jurisdiction and the appeal should be dismissed.

For the reasons given I deem it my duty to render a dissenting: opinion in this case.

On the Merits.

Wyly, J.

The defendants, the heirs of Maunsel White, appeal from the judgment for fifteen hundred dollars against them for professional services rendered by the plaintiff, an attorney-at-law.

In 1864 the executors of White caused his will to be probated, and the plaintiff, then clerk of the court, drew the petition for them. For this service he was paid fifty dollars.

On the nineteenth of May, 1868, the plaintiff was admitted to the-bar.

On the second of February, 1869, the executors wrote to the plaintiff" that the heirs were about selling the property of the estate, and in order to do so they requested him to get the order putting them in possession of the property. He obtained, without opposition and by consent, this and two other orders — one discharging the executors and the other requiring the erasure of certain mortgages.

He was not the regular attorney for the executors and the heirs ; but was only employed to do this particular service, which was not difficult nor such as involved any great responsibility.

We fix the value of the services at one hundred and fifty dollars.

It is therefore ordered that the judgment herein be amended by reducing the total amount thereof to one hundred and fifty dollars, and as thus amended let it be affirmed, appellee paying costs of' appeal.

Eehearing refused.


author: Taliaferro, J.

text:
    No. 4649.
    State ex rel. P. Leonard, Public Administrator, v. The Parish Judge of the Parish of Plaquemines.
    "Where on tlie application of the public administrator of a parish, praying to be appointed administrator of a vacant estate, and to be authorized as such to institute all the proceedings required by law, the parish judge refused to take any judicial action in relation to the same, because a person representing himself to be the brother and the heir of the deceased had appeared, praying to be appointed administrator of said estate, and because such being the case, it was believed by the court that the public administrator had no right to have his prayer complied with;
    Held — That the judge a quo erred. The application of the public administrator should have-been filed, and, after due notice given, tried contradictorily with the application of any other party, and the rights of all the parties settled by a judicial decree.
    APPLICATION for a rule nisi against Judge Presc.ott, parish, court of Plaquemines.

      JE. Howard MeOaléb, for relator. Judge Prescott in propria persona.

   Taliaferro, J.

The relator complains that in his capacity of public administrator of the parish of Plaquemines, he presented to the defendant, who is parish judge of that parish, a petition, in which beset forth that one Andrew Robertson died recently in said parish intestate, leaving therein a succession without heirs present or represented, and prayed to be appointed administrator of the vacant-estate of the decedent; that an inventory and appraisement of the-property be made, and that an attorney be appointed to represent the-absent heirs. Relator alleges that the said judge refused to make any-order on the petition so presented to him. and declined taking any judicial action in relation to the same, therein acting in dereliction of his duties as a public officer and in violation of law. The relator-applied to this court for a mandamus, directing the said judge to discharge his duties in the premises, as by law it is incumbent upon him to do. A rule nisi was granted, as prayed for, and the defendant, William Prescott, parish judge of the parish of Plaquemines, was-ordered to show cause, on Saturday, the twenty-ninth of March, 1873, why the mandamus should not be made peremptory, requiring him, in the name of the State of Louisiana, to render a judgment or order-upon the petition presented to him by the relator, invoking judicial action in the matter of the vacant succession of Andrew Robertson, deceased, according to law.

The judge answered, that on the twentieth of March, 1873, a brother of the deceased appeared and filed a petition, praying an order-for the production of a certain box, deposited by the decedent in the Hibernia Bank, in New Orleans, in which box the petitioner was-induced to think the decedent’s will might be found. This proceeding, followed up on the twenty- second of March, two days after, by a. petition of the same person, representing himself to be an heir of Andrew Robertson, deceased, and praying to be appointed administrator of his estate, the respondent thought that the petitioner, Stewart Robertson, had made himself known as an heir, and opened the succession of Andrew Robertson, and, therefore, not believing, under that state of facts, that the public administrator had by law a right to the administration of the estate, he declined to render any order prayed ■for by the public administrator.

We think the respondent erred. The application of the public administrator to be appointed administrator should have been filed, and after due notice given, tried contradictorily with the application of any other party, and the rights of all the parties settled by a judicial decree.

It is, therefore, ordered that the rule be made absolute, and that William M. Prescott, parish judge of the parish -of Plaquemines, in his official capacity, do proceed to the performance of his duties herein, in conformity with law and this opinion; defendant paying •costs of these proceedings.


author: Ludeling-, C. J.

text:
    No. 2899.
    Louis Lalaurie v. The Southern Bank.
    Where a note was protested through error on ono day, and was paid early on the next day, and, although there was carelessness on the part of the bank, no actual injury or damage was proved to have been caused thereby to the plaintiff who was the drawer of the note;
    Hold — -That the verdict and judgment ior ñve hundred dollars in the court a qua iu favor of plaintiff was clearly erroneous.
    from the Fifth District Court, parish of Orleans. Leaumont, J. Jury case.

      P. Meunier, Ghervet & Puplantier, for plaintiff.

      Pioselius <& Philips, for defendant.
   Ludeling-, C. J.

A note for sixty dollars, made by the plaintiff, was deposited in the Southern Bank for collection, by Albert Lamotte. It was protested for non-payment through a mistake on the part of the ■bank.

The plaintiff brought this suit to recover damages caused him by the protest of his note.

There was a verdict of the jury for five hundred dollars in favor of the plaintiff, and a judgment in accordance therewith. The defendant appealed.

The evidence shows that the employes of the bank were not able to decipher the signature of the maker, and that they guessed at it, entering the name in the bank book, kept for the purpose, as J. Labalos. That when the clerk of the maker came to pay the note, he was informed by the cashier that no such note was deposited with the bank; and a few days afterwards tbe note was given to a notary, who protested it. This clearly shows carelessness on the part of the bank.

But no actual injury or damage to the plaintiff has been proved. The note was protested through error on one day, and was paid early -on the next day. The verdict and judgment are clearly erroneous.

It is therefore ordered and adjudged that the verdict of the jury be set aside, that the judgment of the lower' court be reversed, and that there be judgment in favor of the defendant rejecting the plaintiff’s demand with costs in both courts.


text:
    No. 4349.
    Succession of Edmund Hogan.
    Where there was no necessity for a citation, but where the plaintiff and opponent had been formally summoned by the defendant, to oppose his account as executor of a succession, if he thought proper, and to present his opposition within ten days;
    Held — That said defendant could not invoke judicial action in the matter to the prejudice of plaintiff and opponent before the specified day had expired. Hence, the order of homologation having been rendered after three days delay only, was null, and no action of nullity is necessary to set it aside.
    APPEAL from the Second District Court, parish of Orleans. Duvigneaud, J.
    F. Gilmore, for appellant, ilí. A. Dooley, for appellee.
   Taliaferro, J.

This is an appeal by the executor from two orders of the Second District Court, rendered during the proceedings in that-court relating to the succession. One of these orders was on a rule taken by the opponent to the executor’s account to have stricken out from the statement of liis account various impertinent and irrelevant matters, consisting of a prolix narrative of the life and times of Edmund Hogan, interspersed with occasional episodes of objurgation toward the opponent and others, whom he suspects of feeling an interest in having him called to account for his administration of the succession.

The other order was rendered on a rule to show cause why a previous order of the court homologating the executor’s account should not be rescinded, as having been prematurely and imprudently made.

In regard to the order first named, it directed the offensive and irrelevant matter to be stricken out; and by the second, the order homologating the account was annulled and set aside. Prom these orders or judgments of the court a qua the executor has appealed.

We think the ruling of the court correct in both cases. It is derogatory to legal proceedings to be incumbered with a useless mass of matter like that presented by the executor in this instance. Shrunk to its essence, Ms “statement and account” is that he received $650 in money at Washington city belonging to Hogan’s succession, and that this is all that he ever saw or heard of that belonged to it; that he spent $200 in going for and getting the $650 at Washington. He-charges the estate three dollars per day for three hundred and twenty days spent by him in a vain and profitless search made in Louisiana,. Texas and Mexico for property of Hogan’s estate. This, with other charges, amounts to $1996. Giving credit for $650, he strikes a balance in his own favor of $1346. These figures occupy part of the last page of his account. The preceding eighteen pages were properly ordered by the court to be stricken out. They are mainly directed to showing why Hogan never had any property, and in detailing his various labors in pursuit of property said to have been left by him at Ms decease. The language he uses in reference to the opponent is reprehensible, and not permissible in proceedings in a court of justice. Equally unbecoming and out of place are his insinuations against a respectable and prominent member of a religious denomination, that he is conniving with the opponent to get money from the executor for the benefit of the religious'order to which he belongs.

As to the order rescinding a previous one homologating the executor’s account, the facts seem to be that the account was filed on the twenty-seventh of February, 1872. On the fifth of March following a citation was served upon the agent and attorney in fact of the heir to show cause within ten days from notification thereof why the executor’s account should not be approved and homologated. On the ninth of March, on the motion of the executor’s counsel, the account was homologated, the order of homologation reciting that due notice had been given, and that more than three days had elapsed and no opposition had been filed, etc. On the fourteenth of March, before the expiration of ten days from the day on which the notice was served upon the agent representing the heir, an opposition was filed by the agent. The defendant contends that the case is governed by the article 1004 of the Code of Practice, which requires the heirs to file their objections to the executor’s account, if they have any, within three days from the rendering of the account; that there is no law that requires notice of the filing of the account; that the mistake of the clerk in issuing a notice under articles 1064 and 1065 of the revised Civil Code can not prejudice the rights of the defendant.

There was no necessity for a citation; but the plaintiff and opponent having been formally summoned by the defendant to oppose the account if he thought proper, and to present this opposition within ten days, the defendant could not invoke judicial action in the matter to the prejudice of the opponent before the specified delay expired. Then the order of homologation having been rendered after three days’ delay only was null, and no action of nullity was necessary to set it aside. 2 An. 493; 20 An. 75; ib. 68; 23 An. 298.

It is therefore ordered that the judgments appealed from be affirmed, the defendant and appellant paying costs of this appeal. It is further ordered that the case be remanded to the court of the first instance for further proceedings according to law.


author: Howell, J.

text:
    No. 4460.
    M. A. Southworth v. City of New Orleans.
    Where, instead of procuring and recording according to law, certified copies of judgments as directed by city ordinance Ho. 1630, administration series, the plaintiff followed the provisions in section 12 of act Ho. 73 of 1872, by which a special mode was provided for recording the taxes due to the city without any cost to the city;
    Held — That if the provisions of this act are resorted to in preparing and inscribing the tax judgments to preserve the lien and mortgage in favor of the city, its provisions in regard to compensation must be enforced. It is only 'by the terms of this law that the lists or registers prepared by the plaintiff can have effect as a legal inscription. But this inscription was to be made without cost to the city. Outside of this law the saddregisters or inscriptions of judgments, as made by plaintiff,’ aré without effect. The inscriptions are not made in the boohs of privileges and mortgages required by the general law on the subject.
    APPEAL from tbe Seventh District Court, parish of Orleans. Oollens, J.

      Hornor & Benedict, for plaintiff and appellee. Georye S. Lacey, .City Attorney, and A. O. Lewis, for appellant.
   Howell, J.

The plaintiff, as recorder of mortgages, claims $10,361 for recording 14,802 judgments, by virtue of a special agreement made ¡in pursuance of ordinance No. 1630, Administration Series. The city •denies the alleged contract; avers that the said ordinance was passed in violation of a prohibitory law (sections 11 and 12 of Act No. 73 of 1872), and is null; that by section 12 of said act the recorder is prohibited from charging or collecting any fee for recording the city tax judgments, he being entitled to charge only for cancelling the same, and that if the ordinance is valid, the judgments in question have not been recorded according to law as is required in said ordinance, and plaintiff has not complied with his agreement. Prom a judgment in ■favor of the plaintiff for $10,000 the city has appealed.

Ordinance No. 1630 is in these words: ‘'That the recorder of ■mortgages of the parish of Orleans is hereby authorized and directed to obtain, at his own expense, from the clerks of the district courts, •certified copies of all unrecorded and unprescribed tax judgments in favor of the city of New Orleans against real estate, and similar judgments of the amount of ten dollars and upwards against personal property, and to record the same in the mortgage office according to law; provided that the whole costs of said certificates or copies of judgments and the recording thereof shall not exceed seventy-five cents for each judgment; provided, tlie amount contracted for and appropriated hereby shall not exceed $10,000.”

Instead of procuring- aud recording, according to law, certified copies of judgments, as directed in the foregoing ordinance, the plaintiff pursued the mode and followed the provisions in section 12 of act No. 73 above referred to. By said section a special mode was provided for recording the taxes due the city, but the work was to be performed by the city officials and employes without any cost to the city. Registers with necessary particulars and dates and indexes were to be prepared and bouud in volumes, and one of them deposited in the recorder’s office and thus become a legal record or book for the inscription of the lien and mortgage in favor of the city in said office ; “ and no fee shall he allowed to the recorder of mortgages for such inscription ; but he. shall be allowed one dollar each for canceling the same, which he may do upon the certificate of the Administrator of Public Accounts of the payment or settlement thereof.”

If the provisions of this law are resorted to in preparing and inscribing the tax judgments to preserve the lien and mortgage in favor oí tlie city, its provisions in regard to compensation must be enforced. It is only by the terms of this law that the lists or registers prepared by the plaintiff can have effect as a legal inscription. But this inscription was to be made without cost to the city. Outside of this law the said registers or inscription of judgments, as made by the plain (iff, is without effect. The inscriptions are not made in the books of privileges and mortgages required by the general law on the subject It is therefore ordered that the judgment appealed from he reversed, and that there he judgment in favor of defendant, with costs in both courts.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 2851.
    Succession of Widow de Grehan.
    Whoro tlie heirs of tlie deceased liad accepted the succession unconditionally and the evidence showed that they wore in possession of tlie property of die succession;
    Held — That the suit was improperly brought against them in tlie probate court; it should have been instituted in the district court, the exception to the jurisdiction is well founded.
    APPEAL from the Second District Court, parish of Orleans. Buvigneaud, J.

      M. Blache, Labatt & Aromi, for appellee. B. Augustin, for appellant.
   Ludeling, C. J.

In the case of the succession of the widow De Gréhan, reported in the 21 An., we held that the heirs of the deceased had, in that proceeding, accepted the succession unconditionally, and the evidence showed that they were in possession of the property of the succession.

This suit was therefore improperly instituted against them in the Probate Court — it should have been instituted in the District Court. The exception to the jurisdiction should have been maintained.

It is therefore ordered and adjudged that the judgment of the court a qua be set aside, and that there be judgment dismissing the plaintiff’s suit with costs.

Rehearing refused.


author: Wyly,. J.

text:
    No. 4437.
    City of Baltimore v. Henry Parlange.
    Where the incompleteness of the record is due to a fault attributable to the clerk and not to' the appellant, the appeal will not be dismissed on that ground.
    It is useless to issue a certiorari, where the appellant has filed a certified copy of the missing document, so that the case can be examined.
    In executing th6 process oí court the sheriff had no right to incur costs for advertising in other papers than the official journal.
    To complete the seizure in this case, the sheriff of the parish of Orleans was not bound to take corporeal possession of the property and appoint a keeper. The seizure was completed by registering the notice.
    The charge for appraisers’ fee was properly rejected, because prohibited by article 671, C. 3?.
    The item of costs for plan and survey was also unauthorized.
    The charges for city and State taxes on the property were correctly made. It was the duty of ihe sheriff to pay them out of the proceeds of the property sold.
    Where it was conceded that there was due to a builder,.on his duly registered contract, a certain balance, alter deducting partial payments previously made;
    Held — That for this amount of his judgment, the builder’s privilege had effect as against the plaintiff and other mortgage creditors, of the defendant in execution.
    The attorney’s fees and damages stipulated in the contract with the builder create no privilege.
    Where there was a clause in the contract allowing the builder further compensation for extra work done under any alteration of the specifications that might be ordered, and there was no fixed sum or estimate for such extra work;
    Held — That the registry of the contract gave effect to no privilege to secure this indefinite amount.
    Where the plaintiff in execution contended that the builder’s privilege was lost by the sale of the property in mass ;
    Held — That said plaintiff, who proceeded with the sale in block, notwithstanding the third opponent’s applicati n for a separate appraisement, ought not to be heard setting up such a defense. He ought not to benefit by his own wrong.
    The third opponent, having claimed part of the proceeds, has no right to demand that the sale be treated as an absolute nullity. Besides, it could only be set aside in a direct action.
    The second mortgage creditor has no act on against the prior mortgage creditor for the balance remaining in the sheriff’s bauds or the hands of the purchaser, and the plaintiff, who gets his judgment paid has no right to object to the payment of the second mortgage.
    from the Fifth District Court, parish of Orleans. Leawmont, J.

      K. Bermudez, for Charles Turpin, intervenor and appellee. BoseKus <& Bhilips, for sheriff, appellant. Hornor & Benedict and K. O. Kelly, for George Mertz, intervenor and appellant. Semmes & Mott, for plaintiff and appellant.
   Wyly,. J.

The motion to dismiss this appeal on the ground that the record is incomplete, is denied; because the fault was attributable to the clerk, and not to the appellants. It is useless to issue a ..certiorari, because the appellants have filed a certified copy of the missing document; so the case can now be examined. This is a controversy between the mortgage and privilege creditors of the defendant, for the proceeds of the sale of the “Orleans Ball Room” and other property, situated on Orleans and St. Ann streets, belonging to the ■defendant.

While the property was under seizure under the foreclosure of plaintiff’s special mortgage and vendor’s privilege, Samuel Johnson, a builder, filed a third opposition, setting up his lien for the sum due him for rebuilding the house, which had been burned. The claim was subsequently transferred to George Mertz, who took a rule to compel the sheriff to cause the buildings and lots seized to be appraised sepa'rately, “and to retain in his hands the amount of the sale of said buildings until the final decision of the intervention.”

The court refused to make the rule absolute, and on appeal, this court, in May, 1871, reversed the decision, and ordered the separate appraisement to be made. Pending that appeal, however, to wit, on ■seventh February, 1870, the property was sold in block for $22,005, to John H. O’Connor, and the funds have not yet been distributed.

In answer to the third opposition, the plaintiff denied generally the allegations thereof, and specially that said Mertz, or Johnson, his ■assignor, had or has any privilege on the property under seizure, and •avers that if any privilege ever existed in favor of said Johnson or Mertz, it was only for the amount of the recorded contract, which has been extinguished by payments made from time to time by the obligee in said contract, or by some one in his behalf; and that said intervenor ■or third opponent has no privilege upon said property or the proceeds thereof, as against the plaintiff.

Charles Turpin, a judicial mortgage creditor, claiming to be next in rank to the plaintiff, the city of Baltimore, took a rule to compel the sheriff to apply the proceeds of the sale, exceeding the amount of plaintiff’s judgment, to the payment of his claim.

He alleges, that after the payment of plaintiff, the seizing creditor, there will remain at least $6000, to be applied to his judgment. He alleges that the sale was made by Maxwell, sheriff, and among the charges made against the proceeds, figure a number of items not due, to wit: State and city taxes, appraiser’s fees, unauthorized advertisements, and other charges, specified in the rules, aggregating about $5000.

The court rejected the claim of the third opponent, Mertz; disallowed the charges opposed in the sheriff’s account, reducing it to $1424 90; and ordered the funds to be distributed as follows:

First — To the payment in full of plaintiff’s judgment, amounting to §15,640 98.

Second — The balance to be applied to Turpin’s judgment. -

The court fixed this balance at §4940 02, and gave judgment therefor against Maxwell, sheriff, and also against the plaintiff, the city of Baltimore.

From this judgment, Maxwell, the city of Baltimore and Mertz have appealed.

We think the court did not err in rejecting some of the charges set up by the sheriff. The cost for advertising in papers other than the official journal was an expense that the sheriff had no right to incur in executing the process of the court. The item of $608 for keeper’s fee was properly disallowed; to complete the seizure the sheriff of the parish of Orleans was not bound to take corporeal possession of the property and appoint a keeper; the seizure was completed by registering the notice. Revised Statutes of 1870, sections 3625, 3626, 362. The charge for appraiser’s fee was properly rejected, because it is prohibited by article 671 C. P. The item of seventy-five dollars for plan and survey was also unauthorized. The charges, however, for city and State taxes on the property, the court erred in rejecting. It was the duty of the sheriff to pay them out of the proceeds of the property sold. Revised Statutes of 1870, section 3620. The amount of these taxes should be added to the total amount of the charges allowed by the judge a quo, to wit: $1424 90. We think the court erred in refusing to allow the third opponent Mertz a privilege for any part of his claim.

It is conceded that there is due to the builder on the contract registered, after deducting all payments, §1573 80. For this amount of his judgment the builder’s privilege has effect as against the plaintiff and Turpin, mortgage creditors of the defendant in execution. The attorney’s fees and damages stipulated in the contract with the builder create no privilege. The consideration in the builder’s contract was fixed at §16,250, which has all been paid as aforesaid except §1573 80. There was a clause in the contract allowing further compensation for extra work done under any alteration of the specifications that might be ordered; but there was no fixed sum or estimate for such extra work. Consequently the registry of the contract gave effect to no privilege to secure this indefinite amount.

But the plaintiff contends that the builder’s privilege, amounting to $1573 80, as aforesaid, was lost by the sale of the property in mass. The plaintiff, who proceeded with the sale in block, notwithstanding the third opponent’s application for a separate appraisement, ought not to be heard setting up such a defense. The opponent did all that he could to prevent it. When his rule was denied by the lower court he took a suspensive appeal, and this court reversed the decree and made the rule absolute requiring a separate appraisement.

The plaintiff ought not to benefit by his own wrong. We think, therefore, that the judgment rejecting Mertz’s claim is erroneous, and that he should have judgment for $1573 80, to be paid out of the proceeds of the sale. Having claimed part of the proceeds, Mertz has no right to demand that the sale be treated as an absolute nullity; besides, it could only be set aside in a direct action.

We think the court did not err in requiring the whole of plaintiff’s claim to be paid, as there are ample funds after paying the privilege in favor of Mertz. But we think the court erred in entering judgment in favor of Charles Turpin against the plaintiff, the city of Baltimore. The second mortgage creditor has no action against the prior mortgage creditor for the balance remaining in the sheriff’s hands or the hands of the purchaser. We think Charles Turpin, the second mortgage creditor, is entitled to the balance, if any, after paying the sheriff’s charges, and after paying Mertz’s privilege of $1573 80 and plaintiff’s judgment of $15,640 98 j and that the plaintiff, who gets his judgment paid, has no right to object to the judgment of Turpin, who holds the second mortgage.

It is therefore ordered that the judgment, so far as it fixes the sheriff’s charges at $1424 90, be amended by adding thereto the total amount of taxes charged in his account, and in all other respects that said judgment be annulled; and it is now ordered that out of the proceeds the third opponent be paid the amount of his privilege claim, to wit: $1573 80; that plaintiff be paid in full, to wit: $15,640 98, and that the balance, if any, be applied to the judgment of Charles Turpin. It is further ordered that Charles Turpin pay costs of this appeal.

Rehearing refused.


text:
    No. 4611.
    A. and L. Cheval v. St. Leon Destez and Etienne Carlon.
    Where the plaintiffs, appealing from the judgment of the court below, have assigned as error on the face of the record that the motion to dissolve an injunction having been overruled, an exception based on the same grounds could not have been acted upon by the judge a quo a second time;
    Held — That this court regards the document, called an exception, an answer, and that there existed no reason why the judge a quo could not pass upon the merits of the case, which he seems to have done, although ho also calls the answer an exception.
    APPEAL from the Fifth^District Court, parish of Orleans. Oullomt J.

      Oharles Lovqiie, for plaintiffs and appellants. T. A. Bartlette, for defendants and appellees.
   Ludeling, C. J.

This is an injunction suit. It is alleged in the petition that the defendant brought suit against the plaintiffs, and that while the suit was pending, the plaintiffs, A. and L. Cheval, caused the rights and interest of Destez and Carlon in said suit to be seized under a judgment in their favor, and that they, A. and L. Cheval bought said rights; that subsequently a judgment was rendered and signed in the case of Destez and Carlon v. Cheval, notwithstanding the aforesaid sale, whereby said claims of Destez and Carlon had been extinguished by confusion; that having had said judgment signed, they sued petitioner’s surety on the bond to release the property attached, obtained a judgment against her and caused her property to be seized and advertised for sale.

Under these circumstances A. and L. Cheval obtained an injunction to prevent the sale of the property of their said .surety.

A motion to "dissolve the injunction was filed, based on the grounds following : that the affidavit was not sufficient; that the surety on the bond was not such as the law required; that nothing in the affidavit justified the injunction, inasmuch as all the causes set forth on which it is based, existed before the judgment, have already been urged before the court and decided against the plaintiffs herein, and have acquired the force of res judieata, etc.

This rule, or motion to dissolve, was refused. The defendants then filed what they called ail exception, but which, wo think, is also an answer. It avers that all the matters set up in the petition existed and were known to plaintiffs before the judgment sought to be annulled was rendered and can not now be set up in defense; that said matters are insufficient to maintain an injunction against the execution herein issued, and they pray that the suit and injunction be dismissed with ten per cent, per annum interest, twenty per cent', general damages, and one hundred dollars special damages and for costs and general relief.

The judgment of the court is in the following words :

“In the matter of the exception herein, for the reasons orally assigned by. the court,, it is ordered, adjudged and decreed that said exception be partially maintained; that the injunction herein be dissolved with ten per cent, per annum interest on amount of judgment injoined, etc. It is further ordered that plaintiffs pay all costs of suit.”

Prom this judgment an appeal has been taken by the plaintiffs, who have assigned as error on the face of the record that the motion to dissolve having been overruled, the exception based on the same grounds could not have been acted upon by the judge a quo a second time.

We regard the document called an exception an answer — and there existed no reason why the judge a quo could not pass upon the merits of the case, which he seems to have done, although he also calls the answer an exception.

There is no note of evidence in the record and no evidence. It is impossible therefore lor us to revise the judgment. We have not been able to discover any error on the face of the papers.

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

Rehearing refused.


author: Morgan, J. Howell, J.,

text:
    No. 4513.
    State ex rel. J. T. Michel v. Benjamin Campbell.
    Where, on tlie fourth of April, 1870, Campbell was elected by the Council of the city of New Orleans, reoorder of the Sixth District, the term of his appointment being for two years, and expiring, therefore, on the fourth of April, 1872, and whore Michel was appointed in his place, by the Governor, on the twentieth of September, 1872, and on the twenty-fourth of September, 1872, the Council again elected Campbell;
    Held — That, in a legal sense, the office was vacant on the fourth oí April, 1872, and Campbell was only a tenant thereof at the will of the appointing power, and that, under the circumstances of the case, the appointing power was vested in the Governor, by the 1577th section of the R. S., and not in the Council of the city, of Now Orleans. The appointment being made by the Governor, there was no vacancy, and tlio subsequent election by the Council of another person, was the filling of a place which was not empty.

      APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Charles 8. Rice and William R. Whitaker, for plaintiff and apjiellant. Fellows & Mills, for defendant and appellant.
   Morgan, J.

On the fourth April, 1870, Campbell was elected by the Council of the city of New Orleans recorder of the Sixth District. The term of his appointment was for two years. It expired, therefore, on the fourth April, 1872.

Michel was appointed to fill the vacancy by the Governor on the twentieth September, 1872. On the twenty-fourth September, 1872, the Council again elected Campbell.

Michel now claims his office under the commission of the Governor, issued four days before the second election of Campbell.

Campbell contends that he is entitled to the office by reason of his election by the Council.

Under this state of facts the question is who is entitled to the office ?

It is clear that Campbell’s term of office expired on the fourth April, 1872. He held over, it is true, but this he did under the general provisions of the law which retain all officers in their positions until their successors have been appointed and qualified. In a legal sense the office was vacant, and Campbell was only a tenant thereof at the will of the appointing power. Under the law where did this appointing power lie — the Council having permitted the vacancy to occur? We think the answer is to be found in the 1577th section of the Revised Statutes which provides that, “Whenever a vacancy occurs in any office, State, parish, or municipal, in this State, now existing, or which may hereafter be created, from death, resignation, or from any other cause whatever, the mode of filling which is not provided for in the constitution, all such vacancies shall be filled, it they be State or parish offices, by appointment by the Governor, with the advice and consent of the Senate, which appointment shall be for the entire unexpired term of such vacant office. If the Senate be not in session at the time the appointment is made, the vacancy shall be filled by appointment by the Governor, which appointment shall expire on the-third Monday after the meeting of the next session of the General Assembly thereafter, unless the time for which the vacancy exists-expires sooner; and if the time of such vacancy has not expired, it shall then be the duty of the Governor to fill such unexpired vacancy by appointment, by and with the advice and consent of the Senate; and if it be a municipal office, the vacancy must be filled by appointment by the Governor for the unexpired term of the person whose office is so vacated.”

The office of recorder of the Sixth District of this city is not a constitutional office, nor is the mode of filling a vacancy occurring therein provided for in that instrument. It is the creation of the Legislature, and the appointments thereto are regulated by the Legislature ; and the Legislature having provided that any vacancy occurring-in a State, parish, or municipal office, not provided for by the constitution, shall be filled by the Governor ; and the office in question being vacant, from the fact that the term of office of the incumbent had expired, it follows that the Governor had the right to make the appointment. The appointment made, there was no vacancy, and the subsequent election by the Council, of another person, was the filling of a place which was already occupied.

These being our views, it follows that Michel, the relator, is entitled to the office which he claims, and that the judgment giving it to Campbell is erroneous.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be avoided, annulled and reversed, and that there be judgment in favor of the relator, declaring him to be entitled to the office of recorder of the Sixth District of the city of New Orleans, and that he be placed in possession thereof; appellee to pay the costs in both courts. .

Howell, J.,

dissenting. I can not concur in the opinion that there was such.a vacancy in the office, as is contemplated in the general law embraced in section 2606 R. S.

A careful reading of that law will, I think, lead to.the construction, as the only correct one, that the vacancy contemplated is one that occurs by some act or event during a current term and not by the expiration of a preceding term, as held by the majority of the court. The expression or phrase, “ for the entire unexpired term of such vacant office,” implies that the office had been properly filled for a part of the term, and by some event had become vacant, making it necessary for some one to be immediately placed in the office, so that the public interests should not suffer.

In this case no such vacancy liad occurred. Under the city charter the defendant was elected Recorder by the City Council for two years from the fourth of April, 1870, and by the same law, as well the State constitution, he was authorized and required to continue to fill the said office until his successor was duly elected and qualified, and that election was, by the law creating the office, committed to the City Council. See act No. 7, extra session of 1870, section 31 and last clause of section 7.

It was by this law made the duty of the Council, not on a particular day, but as soon as practicable, to elect the recorder, who was to hold office for two years, and at the expiration thereof to continue in the discharge of his duties, which the defendant was doing; and he was rightfully doing so by a legal tenure, and hence there was no vacancy to authorize the executive action. The City Council has the right, and it was its duty at the beginning of this second term, to elect a recorder for another two years, but its failure to do so on or before the first day of said second term did not produce a vacancy, for the city charter, creating the office, provided for the contingency. If the doctrine of the majority opinion is correct, the Governor had the right, I think, on the first day of thp second term to make the appointment, provided only his action preceded, by a moment of time, the action which the Council might take on the same day. The law never contemplated any such race or test of speed in filling offices. In my opinion, the Governor had no authority under the circumstances to appoint the relator.

Rehearing refused.


text:
    No. 4605.
    State of Louisiana ex rel. Thomas Lynne v. Charles Clinton, State Auditor.
    The clerks of courts in the city of New Orleans do not come within the provisions of section 52 of act No. 42 of the General Assembly of 1871 in relation to the assessment and collection of taxes.
    APPEAL from the Superior District Court, parish of Orleans. HawIdns, J.

      W. W. Howe, O. 8. Rice, Whitalcer, Kennard and Prentiss, for relator and appellant. A. P. Field, Attorney General, and F. O. Billings, for respondent and appellee.
   Ludeling, C. J.

This is a proceeding by mandamus to compel the Auditor to warrant in relator’s favor for fourteen thousand eight hundred and sixteen dollars and forty cents, alleged to he due to him for cleric’s costs in a number of tax suits.

The answer of the Auditor is that he knows nothing of the facts relating to relator’s claim, and that the General Assembly has not made any appropriation for the payment of such claims.

The relator relies upon the 52d section of act No. 42 of the General Assembly of 1871, in support of his demand. The section is as follows : “ Section 52 — That the assessors and tax collectors in the city of New Orleans, and the tax collectors of the other parishes of the State, and all others herein named in connection with the assessment and collection of taxes, shall he paid by the State Treasurer on the warrant of the Auditor of Public Accounts, out of any money in the treasury not otherwise appropriated.”

It is contended that, because it is sometimes necessary to file suits in the courts to enforce the payment of taxes, therefore, the officers of the courts are embraced in the words of the law, “ and all others herein named in connection with the assessment and collection of taxes.”

We do not think so. The clerks of courts in the city of New Orleans are not named in the law, in connection with the assessment and collection of taxes. In the country they are required by said act to aid in making the assessments, and their compensation is specifically fixed.

It is unnecessary, in this case, to decide the other questions discussed by counsel.

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


author: Howell, J. Ludeling, C. J. Mr. Justice Miller Taliaferro, J.

text:
    No. 1848.
    John Henderson v. Merchants’ Mutual Insurance Company et als.
    A contract made prior to the adoption of the constitution of Louisiana, 1868, can not bo affected. by the provision contained in section 127 of that constitution. If the contract was valid then, it is clear that this provision not only impairs but absolutely destroys its obligation within the meaning of the tenth section of the first article of the constitution of the United States.
    Any judgment of a State court resting on such enactment of a State constitution, after the date of the contract, must bo reversed in tbe Supreme Court of the United States.
    The reinscription of a mortgage on the granting of an extension of time for the payment of a note, without any consideration for such extension, or change in any other term or condition of the contract, can not be beld to be an agreement requiring a stamp.
    APPEAL from the Fifth District Court, parish of Orleans. Jjecmmont, J.

      P. Charles CuvelUer, for plaintiff and appellant. A. & M. Voorhies, for Merchants’ Mutual Insurance Company, defendants and appellants. JE. Howard MeOaleb, for John T. Delmas, appellant.
   Howell, J.

On the first day of July, 1867, the plaintiff, John Henderson, bought at sheriff’s sale, under executory process sued, out by Gilbert against J. Menard, a lot and improvements in New Orleans, for $5625, and after paying the claim of the seizing creditor, costs, and certain privileges, retained in his hands the sum of $3499 07, to be applied to the payment of the subsequent mortgages set forth in the certificate of the recorder of mortgages, read by the sheriff at the time of the sale. According to said certificate, there was a special mortgage in favor of the Merchants’ Mutual Insurance Company, for $10,000, granted by the debtor, Joseph Menard, on the twenty-ninth May, 1857, and reinscribed on the twenty-fifth June, 1867, and several judicial mortgages, resulting from judgments recorded prior to the reinscription of the above special mortgage.

Subsequent to the said purchase, the Merchants’ Insurance Company obtained an order of seizure and sale against said property, for $5000 interest and attorneys’ fees, and asked that demand of payment and notice of seizure be served on Joseph Menard and John Henderson, alleging the latter to be the holder and possessor of the property, who refuses to pay, and that demand had been made of Menard more than thirty days prior thereto; whereupon Henderson instituted this proceeding by injunction, to restrain the sale of the property, on the-following grounds:

First — The note on which the said claim is based is prescribed by five years.

Second — The mortgage securing said note is prescribed by ten years, and the reinscription after the lapse of more than ten years-could not impair the precedence of other mortgages.

Tim'd — The property having been sold under an anterior mortgage, could not be again seized and sold for an amount more than the balance of the purchase price in the hands of the purchaser.

Fourth — The order of seizure and sale issued upon insufficient evidence, in that there is no authentic evidence of the renewal or extension of the note; there is no stamp on said note; there is no allegation nor legal proof that the mortgage was inscribed in due time, the evidence of which must be stamped; there is no declaration in the affidavit or petition that the debt is due the plaintiff in the hypothecary action, and there is no allegation that ten days’ notice had been given to the third possessor. All the parties in interest are called into court to discuss their rights to the said balance of the price and a prayer ■that all mortgages be canceled.

Issue was joined as to the several parties, but it is necessary to examine the defense set up by only two, J. T'. Delmas, a judicial mortgagee, and the Merchants’ Insurance Company.

Delmas answers that, having a judgment in the Second District Court of New Orleans, amounting to $5486 73 against Joseph Menard and the firm of Menard & Vignaud, he issued á garnishment process and seized in the hands of Henderson the sum of $3499 07, the balance of the price of the property of Menard bought by Henderson and which belonged and accrued to said Menard; that to the interrogatories propounded, Henderson admitted owing said sum, but failing to-pay, proceedings have been taken to compel him to do so ; that respondent’s judicial mortgage takes precedence of the pretended mortgage of the Merchants’ Insurance Company, which and the claim are prescribed by ten and five years, and Menard could not waive or renounce to the prejudice of respondent’s rights ; he specially denies that Menard has any other property out of which his judgment can be satisfied, and avers that by his seizure he has acquired a privilege on the funds in the purchaser’s hands; and he prays that the injunction be maintained against the insurance company and that Henderson be ordered to pay his whole claim.

The Merchants’ Insurance Company, besides the general issue, denies the validity and finality of the judgment set up by Delmas, for the reason that the consideration of the claim on which it is based was Confederate money; propounds interrogatories to him to prove the fact, and prays that his said judgment be declared null.

There was judgment dismissing the demands of all the parties, at their respective costs; and Henderson and Delmas have appealed.

We will dispose, first, of the demand of Delmas, the judicial mortgagee:

Admitting the correctness of the legal positions assumed by him, he is successfully met by the plea to the validity of his judgment, which is not yet executed. His answers to the interrogatories leave no doubt that the said judgment was based on a contract or agreement, the consideration of which was Confederate money, and is, therefore, null. To render the decree asked for by him, would be to enforce a prohibited agreement. Article 127, Constitution. The District Court did not, therefore, err in dismissing his demand.

As to the questions between the plaintiff and the Merchants’ Insurance Company, it need only be remarked, that the latter, holding the special mortgage next in rank to the one under which the property was sold, has the right, under the law and the facts of this case, to-the balance of the price and interest retained by the purchaser, who is-personally liable for its payment, and ten days’ notice is, consequently, not required. C. P. 707, et seq.; 16 La. 163. The injunction should be perpetuated, however, as to the excess.

We deem the objection as to stamps of no weight. The note having been made prior to the date of the Stamp Act, was exempt, and the extensions of payment are not such agreements as require stamps under said act. There is no evidence as to the stamp on the act of reinscription of the mortgage; and if a stamp is necessary, the presumption is in favor of the officer. The other questions presented in the record merit no consideration.

It is, therefore, ordered that the judgment of the lower court, dismissing plaintiff’s demand, be reversed; and it is now ordered that there be judgment in his favor, with costs, perpetuating the injunction herein for the excess of defendant’s writ of seizure and sale, over and above the sum of three thousand four hundred and ninety-nine dollars and seven cents ($3499 07), and the interest thereon, at eight per cent, from first July, 1867, for which sum and interest the said order ■of seizure and sale is hereby maintained.

It is further ordered, that as thus amended, the judgment be affirmed. Costs of appeal to be paid by J. T. Delmas and the Merchants’ Mutual Insurance Company.

Rehearing refused.

Writ of error prayed for by F. Wooldridge, JB. Howard McOaléb and 'Campbell d¿ Spofford, of counsel for John T. Delmas, returnable to the Supreme Court of the United States.

On tiie Application for Writ of Error.

Ludeling, C. J.

In this case an application for a writ of error to the Supreme Court of the United States has been made on the following grounds:

First — Because it is alleged there was drawn in question the application of article 127 of the constitution of the State of Louisiana, and that, by the judgment of the Supreme Court of Louisiana, the claim ■of petitioner was rejected, in violation of article 1, section 10 of the constitution of the United States.

Second — Because there was drawn in question the construction of an act of Congress relative to stamps, and the decree of the court was that the said act of Congress was inapplicable to the case.

We refuse to grant the writ of error on the first ground, because, under the settled jurisprudence of Louisiana, before the adoption of the present constitution of 1868 and since, the judgment of the court would have been the same, whether article 127 of the constitution had validity or not; and the article of the constitution was referred to only as an additional reason for the opinion of the court. Armstrong v. Lecomte, 21 An. 528; A. D. Palmer v. H. Marston, 22 An.; Wainwright, administrator, v. Bridges, 19 An. 234; Dranquet v. Rost, 21 An. 538.

“ When the record shows that the State court might have disposed of the case, and for ought that appears, did decide it, without deciding .any question under an act of Congress against the plaintiff in error, the Supreme Court of tlie United States has no jurisdiction.” Ocean Insurance Company v. Pulley, 13 Peters 157; 15 Peters 18; 7 How. 172; 12 How. 3 (Curtis’ ed.); 3 Wal. 246.

On the second ground the applicant is entitled to a writ of error.

It is therefore ordered that a writ of error he granted, returnable to the Supreme Court of the United States, in Washington City, D. C., on the first Monday of December next, 1870, on the plaintiffs in error .giving a bond in the sum of five hundred dollars, conditioned, as the law requires.

Supreme Court oe the United States — No. 227 — December Term, 1871.

John T. Delmas, plaintiff in error, v. the Merchants’ Mutual Insurance Company, John Henderson et al. — In error to the Supreme Court of the State of Louisiana.

Mr. Justice Miller

delivered the opinion of the court.

By the Civil Code of Louisiana the purchaser of property sold under a mortgage retains in his own hand the amount which his bid may exceed the sum necessary to satisfy the mortgage and costs of the proceeding under which it was sold. For this surplus he is responsible to the holders of other liens, if there be any, on the same property.

The case before us is a petition in the nature of the equitable bill of interpleader, brought by Henderson to have it determined by the court to which of several claimants such a surplus in his hands should rightfully be paid.

The contest finally became narrowed to Delmas on one side and the insurance company on the other, and this contest was decided by the Supreme Court of Louisiana in favor of the latter.

Delmas has prosecuted a writ of error, and relies upon two proportions ruled against him by that court as bringing the case within the ■revisory power of this court.

First — The first of these is that the court below decided that a judgment in his favor against the mortgaged property, which was otherwise conceded to be a valid prior lien, was void because the consideration of the contract on which the judgment was rendered was Confederate money.

Second — -That the note under which the insurance company claimed "had been extended as to time of payment, and the mortgage given to secure it reinscribed, without having the stamps affixed which such agreements required.

First — In regard to the first of these propositions, this court has decided, in the case of Thorington v. Smith, 8 Wallace 1, that a contract was not void because payable in Confederate money; and notwithstanding the apparent division of opinion on this question in the case of Hanauer v. Woodruff, 10 Wallace 482, we are of opinion that on the general principle announced in Thorington v. Smith the notes of the Confederacy, actually circulating as money at the time a contract was made, may constitute a valid consideration for such contract.

The proposition involved in this conclusion, however, does not of itself raise one of those federal questions which belong to this court .to settle conclusively for all other courts. When a decision on that point,, whether holding such contract valid or void, is made upon the general principles by which courts determine whether a consideration is good or bad on principles of public policy, the decision is one we are not authorized to review. Like many other questions of the same character, the federal courts and the State courts, each within their own spheres, deciding on their own judgment, are not amenable to each, other.

Accordingly, in several cases coming here on writ of error to the-State courts, where the same question of the sufficiency of Confederate money and the sale of slaves as a consideration for a contract was the error complained of, we have dismissed the writ because it appeared that the State court had rested its decision on this ground of public policy, tested by which the contract was void when made. Bethell v. Demeret, 10 Wall. 537; Bank of West Tennessee v. the Citizens’ Bank;Worthy v. Marston; Sevier v. Haskell; Jacoway v. Denton, not yet reported.

In the first of these cases the opinion of the Supreme Court of the State was expressly based on the general doctrine and the previous decisions of that court, and not on the constitutional provision. In-the case of the Bank of West Tennessee v. the Citizens’ Bank of' Louisiana, that court speaks both of the constitutional provision and. the adjudications of that court made prior to the adoption of.the article 127 of the Constitution. And as it was apparent from the record that the judgment of the court of original jurisdiction was rendered before that article was adopted, we could not entertain jurisdiction, when the decision in that particular point was placed on a ground which existed as a fact and was beyond our control, and was sufficient to support the judgment, because another reason was given which, if' it had beon the only one, we could review and might reverse.

In the case before us that court say in express language that they hold the judgment of the plaintiff in error void, because the 127th section of the State constitution declares that it shall be so held. That article reads as follows: “All agreements, the consideration of which was Confederate money, notes or bonds, are null and void, and shall not be enforced by the courts of this State.”

This provision was made a part of the Constitution of Louisiana •after the contract now in dispute was made, and if the contract was •valid then, this provision clearly not only impairs but absolutely •destroys its obligation within the meaning of the tenth section of the 'first article of the Constitution of the United States.

It has long been settled, that under the Act of Congress ot 1824, and by reason of the peculiarity of the practice in the courts of that State, the opinions .delivered by the appellate court of Louisiana are treated ’by us as part of the record, and are looked into to learn what they decided when their judgments are brought here by writs of error. Cousin v. Blain’s Ex., 19 H. 207; Almonaster v. Kenton, 9 H. 9.

So long as they in those opinions placed the invalidity of this class of contracts on the ground of a public policy existing at the time the ■contract was made, or so long as they left us to infer that such was the •ground, having once before so decided, the decision presented no ■ question over which we had any revisory power. But when, going a step further, they expressly rest the decision of the same question on the constitutional provision we have quoted, and on no other ground, the question necessarily arises, is that provision in conflict with the Constitution of the United States? And the answer to this question depends solely on the validity of the contract when made, for, if valid then, the federal Constitution protects it from all subsequent acts of State legislation, whether in the form of constitutional or ordinary •legislative enactments. Hart v. White, 13 Wallace, 650.

It may be said that since we know that the Supreme Court of Louis•iana has in other cases held this class of contracts void in their inception, for the very reasons for which the Constitution annuls them, we are bound to follow the State courts in that decision. But, as we have already said, this is not the class of questions in which we are bound to follow the State courts. It is.not based on a statute of the State, or on a construction of such a statute, nor on any rule of law affecting title to lands, nor any principle which has become a settled rule of property, but on those principles of public policy designed for the protection of the State or the public, of which we must judge for ourselves, as they do when the question is fairly presented.

Besides, this court has always jealously asserted the right, when the question before it was the impairing of the obligation of a contract by State legislation, to ascertain for itself whether there was a contract to be impaired. If it were not so, the constitutional provision could always be evaded by the State courts, giving such construction to the contract, or such decisions concerning its validity, as to render the power of this court of no avail in upholding it against unconstitutional State legislation. Bridge Proprietors v. Hoboken Co., 1 Wallace, 145; • Jefferson Branch Bank v. Skelley,.l Black, 446.

These views are in precise conformity to what has been held by this court in the analogous subject of slaves as a consideration of contracts made before the abolition of slavery. The case of Worthy v. Marston, decided at this term before the recess, was a writ of error to the Supreme Court of Louisiana, on the ground that that court had held, such a contract void. And it was urged that it was so held by that court under section 128 of the Louisiana constitution, which declared, contracts for slaves void, in the same terms that section 127 declared contracts for Confederate money void; but this court dismissed the writ of error for want of jurisdiction, because the Supreme Court of Louisiana had said in its opinion that it did not place the decision on the constitutional provision, but on the ground that the same principle had been promulgated and acted on in that court before the constitutional provision was adopted.

Yet, in the case of Hart v. White, 13 Wallace 646, in which the-Supreme Court of the State of Georgia held such a contract void by reason of a provision in the constitution of that State, adopted after the contract was made, this court entertained jurisdiction and reversed the judgment. This was done on the ground taken in the present case,, namely, that the contract being in our judgment valid when made, any constitutional provision which made it void was in violation of the federal Constitution on the subject of impairing the obligation of contracts; and any judgment of a State court resting on such enactment of a State constitution, after the date of the conti act, must be reversed in this court on error.

We are of opinion, for these reasons, that there was error in the Supreme Court of Louisiana in deciding that the judgment of Dolmaswas void by reason of the constitutional provision of that State concerning contracts for which Confederate notes were the consideration.

As the case must be reversed for this reason, we might pass without examination the question raised in regard to the necessity of stamps on the extension of time for the payment of the note, and on the reinscription of the mortgage; but as that may arise again in the further progress of the case, we will dispose of it now. As regards the latter,t. which is the mere act of the paity who holds the mortgage, we are at a loss to perceive any ground on which this act of reinscription — the same as recording a deed the second time — can be held to be an agreement requiring a stamp. The assent of the mortgageor is not necessary, nor was it asked or given.

Nor do we believe it was the purpose of the stamp act to hold a mere extension of the time of payment, indorsed on the note, without any consideration for such extension, or change in any other term or condition of the contract, to be an agreement requiring a stamp.

In the case of Pugh v. McCormick, decided at the present term, it., was held that the indorsement of a note by which the bill passed to theindorsee, did not require a stamp, and also that the writing on the back of the note by the indorser waiving demand, protest and notice, and agreeing to be liable without them, was good without a stamp. We think this ample authority for holding that a gratuitous extension of time did not require a stamp, as both the writings relied on in that case have more of the elements of an agreement than the one before us. In the matter of the stamp we think the court committed no error.

But, for the error first considered, the judgment is reversed, and the-case remanded for further proceedings, in conformity to this opinion. D. W. Middleton, C. S. C. U. S.

United States of America, ss. — The President of the United States' of America, to the Honorable the Judges of the Supreme Court of the State of Louisiana — Greeting:

Whereas, lately, in the Supreme Court of the State of Louisiana, before you, or some of you, in a cause between John Henderson, plaintiff and appellant, and the Merchants’ Mutual Insurance Company, John T. Delmas and others, defendants and appellees, and John T. Delmas, appellant, and the Merchants’ Mutual Insurance Company, John Henderson et al., appellees, wherein the decree of the said Supreme Court entered in said cause on the fifteenth day of November A. D. 1870, is in the following words, viz:

“ It is ordered that the judgment of the lower court dismissing plaintiff’s demand be reversed, and it is now ordered that there be judgment in his favor with costs, perpetuating the injunction herein for the excess of defendant’s writ of seizure and sale over and above the sum of three thousand four hundred and ninety-nine dollars and seven cents, and the interest thereon at eight per cent, from first July, 1867, for which sum and interest the said order of seizure and sale is hereby maintained. It is further ordered that as thus amended the-judgment be affirmed; costs of appeal to be paid by John T. Delmas and the Merchants’ Mutual Insurance Company. As by the inspection of the transcript of the record of the said Supreme Court, which was-brought into the Supreme Court of the United States, by virtue of a writ of error, sued out by John T. Delmas, agreeably to the act, of Congress, in such case made and provided, fully and at large-appears.

And whereas, in the present term of December, in the year of our Lord one thousand eight hundred and seventy-one, the said cause came on to be heard before the Supreme Court of the United States on, the said transcript of the record, and was argued by counsel, on consideration whereof, it is now here ordered and adjudged by this court-,. that the judgment of the said Supreme Court in this cause he and the same is hereby reversed with costs, and that the said John T. Delmas recover against the Merchants’ Mutual Insurance Company, John Henderson et al., one hundred and forty-one dollars and forty-seven cents for his costs herein expended and have execution therefor.

And it is further ordered that this cause be, and the same is hereby remanded to the said Supreme Court, for further proceedings to he had therein, in conformity with the opinion of this court.

And the same is hereby remanded to you, the said judges of the said Supreme Court, in order that such execution and further proceedings may be had in the said cause, in conformity to the judgment and decree of this court above stated as, according to right and justice and the constitution and laws of the United States, ought to be had therein, the said writ of error notwithstanding.

Witness the Honorable Salmon P. Chase, Chief Justice of said Supreme Court, the first Monday of December, in the year of our Lord one thousand eight hundred and seventy-one.

On motion of E. H. McCaleb, of counsel for John T. Delmas, one of the defendants in the cáse of John Henderson v. Merchants’ Insurance Company et als., and on filing the opinion and mandate of the Supreme Court of the United States, reversing the decision of this court in this case and remanding the same for further proceedings in conformity with said opinion, it was ordered that this case be reinstated and fixed.

After hearing, the court delivered the following opinion :

Taliaferro, J.

Prom the decision rendered by this court in the above entitled case in November, 1869, it was taken by writ of error to the Supreme Court of the United States and the judgment of this ■court reversed. In pursuance of the mandate from that court directing further proceedings in this case we now order and decree as follows, viz: That the surplus of the proceeds of sale of the property of Joseph Menard, viz., the sum of thirty-four hundred and ninety-nine dollars and seven cents remaining in the hands of the plaintiff John Henderson, who purchased said property at sheriff’s sale on the first day of July, 1867, be paid over to John T. Delmas, a judgment creditor of Joseph Menard having judicial mortgage to the amount of four thousand five hundred and sixty dollars and fifty cents, with interest, that the injunction be perpetuated; the Merchants’ Mutual Insurance Company paying costs of this appeal, and the further sum of one hundred and forty-one dollars and forty-seven cents to J. T. Delmas, costs accrued in the Supreme Court of the United States.


author: Howe, J. Ludeling, C. J.

text:
    No. 2789.
    Cass & Dowling v. L. S. Rouark — J. A. O’Brien, Intervenor.
    ■Where the plaintiff, in a suit against D, seized certain bales of cotton by attachment, in the hands of A, to whom the cotton had been shipped, and A intervened, and alleged he had privilege on said cotton for advances to make it and for charges pad on the same, which was in his possession, and D bonded the property after the intervention of A;
    Held — That the intervention and third oppositi )n could not be excepted to as premature. The intervention could not be considered as dismissed by the bonding. The bond remained in lieu of the property seized and released.
    The intervention could only be made while the suit was pending; and there is no good reason why the third opposition should not be made at the same time, in order that the relative rank of the contesting creditors should be settled in one suit.
    APPEAL from the Sixth District Court, parish of Orleans. Oooley, J.

      MoQloin & Kleinpeter, for plaintiffs and appellees. Boselius <& Philips, for intervenor and appellant.
   Howe, J.

The plaintiffs seized certain cotton by attachment. O’Brien came in by way of third opposition, claiming a privilege on the cotton and its proceeds. The plaintiffs filed many exceptions to the right of the opponent to come in, of which the court below sustained one, namely, that the opposition was premature. The opponent appealed.

The judge below may have erred in the reasons he gave, and yet his judgment be practically correct.

It appears by the record, that the defendant in the suit bonded the ■cotton attached, and it was released to him. The bond was left to respond to the plaiutiffs’ rights, but the opponent could take no advantage of it. He could, have no privilege on the bond, nor any proceeds which might be realized by the enforcement of its obligations. He never seized the cotton himself. From the moment that the cotton went out of court his opposition perished.

Judgment affirmed.

On Rehearing.

Ludeling, C. J.

The plaintiffs sued L. J. Rouark, a resident of Mississippi, and attached thirteen bales of cotton in the hands of John A. O’Brien, to whom the cotton had been shipped in New Orleans.

O’Brien intervened, and alleged that he had a privilege upon said cotton for advances made to Rouark to make the crop of cotton and for charges paid on said cotton, which'was in his possession, the same having been shipped to him by the defendant in accordance with their contract, whereby he agreed to make the said advances. The defendant bonded the property after this intervention. The plaintiff filed exceptions to the intervention, one of which the judge a quo sustained, to wit: that the intervention was premature. The intervenor appealed.

In our former opinion we said that the release of the property by bonding destroyed his opposition. This was an error. The intervention and third opposition could not be dismissed by 'the bonding of the property by either the defendant or plaintiffs. The bond remained in lieu of the property, to respond for whatever judgment might be-rendered in the case.

■ The intervention and third opposition was not premature. The-intervention could only be made while the suit was pending, and there-exists no good reason why the third opposition should not be at the-same time, in order that the relative rank of the contesting creditors should be settled in one suit.

The evidence shows that O’Brien made advances of plantation supplies, etc., to make the cotton; that the cotton was shipped to him to-reimburse him for said supplies and advances made on the cotton, and that the cotton was in his possession at the time it was attached by the plaintiffs.

Under these circumstances we think the intervention and third opposition should have been sustained.

It is therefore ordered and adjudged that the decree of this court heretofore rendered be set aside; that the judgment of the lower court be annulled, and that there be judgment in favor of the intervenor and third opponent, O’Brien, against L. J. Rouark for the sum of $1611 32,. with five per cent, per annum interest from the first of January, 1869, until paid and costs, and that said sum be paid out of the proceeds of the sale of said thirteen bales of cotton by pieference, and the remainder, if any there be, be applied to the payment of the judgment of Cass & Dowling, the plaintiffs. Costs of appeal to be paid by the-, appellees.