text:
    No. 498.
    Goodwell & Webb v. A. F. Minchew.
    The attachment in this case was improperly dissolved. The defendant having been sued on an undisputed'debt, transferred his plantation upon which he was living, in the fall, before gathering a growing crop, and just as a judgment by default was about to be made final. He transferred it in part payment of a debt due another creditor, and though he received cash enough to discharge the debt sued upon, he failed and refused to apply any part of the money to the payment of the debt; and shortly after this transfer he removed to Texas. These acts authorize Nthe belief that he transferred his property with a fraudulent intent, and justified the attachment.
    Appeal from the Eighteenth Judicial District Court, parish of Bossier. Turner, J.

      L. ]B. Watkins, Watkins & Fort, for plaintiff and appellant. A. JB. George, J. A. Snider, for defendant and appellee.
   Ludeling, C. J.

On the fifth of Novemberj 1873, the plaintiffs instituted this suit on a promissory note against the defendant. On the eighteenth day of November, 1873, a default was taken. On the twentieth day of the same month and during the term of the court, the defendant transferred his property to another creditor for about $1600 cash, in part payment of a debt due to him and for two notes due in one and two years. On the twenty-first day óf November, the day after this sale, the plaintiffs filed an amended petition praying for an attachment, on the grounds that defendant had sold a part of his property, and they feared and believed he was about to sell the balance thereof, with the intent to give an undue preference to one creditor over another and to defraud the plaintiffs.

The defendant moved to dissolve the attachment on the grounds that the amount of the debt is not sworn to; that the affidavit is made by the attorney, and he swears not to facts within his knowledge but according to the best of his knowledge and belief; and that the allegations in the amended petition are not true. The attachment was dissolved with damages against plaintiffs; judgment was rendered in their favor for the debt.

We think the attachment was improperly dissolved. The amount of the debt was sworn to and the affidavit of the attorney substantially embraced all the requirements of the law. C. P. 216, 217. The last objection relates to the merits, and we think the evidence shows that the allegations in the amended petition are true.

As already stated the defendant, having been sued on an undisputed debt, transferred his plantation upon which he was living, in the fall, before gathering a growing crop, and just as a judgment by default was about to be made final. He transferred it in part payment of a debt due another creditor, and though he received cash enough to discharge the debt sued upon, he failed and refused to apply any part of this money to the payment of the debt; and shortly after this transfer he removed to Texas.

We think these acts of the defendant justify the opinion that he transferred his property with a fraudulent intent and justified the attachment.

It is therefore ordered that the judgment dissolving the attachment with damages be annulled, and that there be judgment reinstating and recognizing the attachment and ordering the property attached to be sold according to law to satisfy the judgment for the debt in favor of the plaintiffs against the defendant, which is affirmed with costs of appeal.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 515.
    The State of Louisiana v. Eli Gilcrease.
    The verbal admissions of the accused ought always to be received with great caution. Besides, it is a rule of evidence that the whole admission is to be taken together. In this-case the witness only heard part of it. The evidence should have been rejected.
    Appeal from the Twelfth Judicial District Court, parish of-Winn. Taliaferro, J. Criminal case.

      I). B. Gorham, district attorney, for the State, appellee. 8. M. Bryan and George Wear, for defendant and appellant.
   Ludeling, C. J.

The defendant is charged with the murder of his infant child. He was convicted of manslaughter and sentenced to imprisonment at hard labor for three years.

During the course of the trial a bill of exceptions was taken to the admission of testimony to prove a portion of a conversation of the prisoner overheard by the witness. The objection urged was that the admissions or confessions of the defendant were inadmissible unless the whole thereof was given. From the bill of exceptions it appears that the witness was walking through the yard of the accused, and as she approached the house she heard him talking to his wife; and that as she reached the steps of the house she distinguished these words t “Now don’t you never tell that I whipped the child Friday.” On discovering witness, the accused stopped speaking, and she did not hear what preceded this sentence.

We think this evidence should have been rejected. Yerbal admissions ought always to be received with great caution. Mr. Greenleaf says: “The evidence, consisting as it. does in the mere repetition of oral statements, is subject to much imperfection and mistake; the party himself either being misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens also that the witness, by unintentionally uttering a few expressions really used, gives an effect to the statement completely at variance with what the party actually did say.” § 200. Besides, it is a rule of evidence that the whole admission is to be taken together. Here the witness only heard a part of it. Greenleaf 1 § 201.

It is therefore ordered and adjudged that the verdict of the jury be set aside; that the judgment of the court a qua be annulled, and that the case be remanded to be proceeded with according to law.


author: Howell, J.

text:
    No. 517.
    Angeline Rentz et als. v. Richard Cole.
    The plaintiffs, as heirs of the deceased wife of the defendant, alleging that he failed to open her succession, or cause an inventory thereof, consisting of half of the community property, to he made, hut has administered the same as negotiorum gestor and permitted it to be wasted and dilapidated, obtained an exporte order directing him to file an account of his administration and a notary public to make an inventory of said succession.
    - There is no authority for calling on a negotiorum gestor, in this manner, to render an account to the court in a fiduciary capacity, as an administrator of a succession; nor is the surviving husband, holding under the law as usufructuary, to be caUed on thus for an account of an administration.
    Appeal from the Parish Court, parish of Winn. Kelly, J.

      Jack & Pierson, 8. M. Brian, for plaintiffs and appellees. Bough & Wear, for defendant and appellant.
   Howell, J.

A motion is made to dismiss this appeal on the grounds that there is no order of appeal, and the certificate of the clerk is vague, indefinite and insufficient, and no return day is fixed.

The entry as to an order of appeal, as indeed the whole record, is irregular and very inartistic, and if we were to determine to act strictly in this respect, we would require the clerk to make out a new transcript without cost to the parties; but we think it sufficiently clear that an order of appeal was granted. The other grounds are not good in law for a dismissal, and we do not consider them of sufficient importance to require their correction. The motion is therefore refused.

The plaintiffs, as heirs of the deceased wife of the defendant, alleged that he failed to open her succession, or cause an inventory thereof, consisting of half the community property, to be made, but has administered the same as negotiorum gestor and permitted it to waste and be dilapidated, obtained an ex parte order directing him to file an account of his administration and a notary public to make an inventory of said succession.

The defendant filed a motion to revoke said order and .dismiss the suit on the grounds, substantially:

First — That plaintiffs do not show that he is administering in such capacity as to render an account.

Second — At the time the order was granted there was no proof before the judge on which to base it.

Third — Defendant is not sufficiently notified of the demand against him to enable him to make his defense.

This motion, which may be viewed as really an exception, was overruled, and proceedings were had to a judgment on oppositions to an account, from which the defendant has appealed.

We think the motion should have prevailed. There is no authority for calling on a negotiorum gestor, in this manner, to render an account to the court in a fiduciary capacity, as an administrator of a succession ; nor is the surviving husband, holding under the law as usufructuary, to be called on thus for an account of an administration.

It is therefore ordered that the judgment appealed from be reversed, and that the action of plaintiff's be dismissed with costs in both courts.


text:
    No. 448.
    Thomas B. Kilgore v. John L. Tippit et als.
    The defendants are sued as sureties, bound in solido, which they deny. After the case bad been tried and submitted, but before judgment the defendants offered to file the plea of division. This was objected to on tbe grounds that it came too late, and that many of tbe co-sureties were then insolvent. The plea was properly refused by the judge a quo.

    Division is a right accorded to sureties, but they can not claim this benefit while denying their obligation as surety; the plea is inconsistent. The obligation sued upon in this instance is manifestly one of suretyship, and solidarity is of the nature of that contract.
    Appeal from the Eleventh Judicial District Court, parish of Claiborne. Trimble, J.

      Egan & Hayes for plaintiff and appellee. J. & J. W. Young, for defendants aud appellants.
   Ludeling, C. J.

The defendants are sued as sureties on the following written obligation :

“We, the undersigued stockholders of the Claiborne Manufacturing Company hereby bind ourselves to Merrill Monk, Sr., in consideration of his lending said company twenty-eight hundred dollars in gold, that the note given for said sum this day by John L. Tippit, president of said company, payable to Merrill Monk, Sr., on the first day of December, 1868, in gold, with eight per cent, per annum interest from date, until paid, shall be paid according to its face in gold, and also pledge our honors as men thereto. • J. L. TIPPIT,

JOSHUA WILLIS,

H. W. PATTON,

JOHN L. WILLIAMS,

JAMES F. NELSON,

WILLIAM MUNLEY,

J. S. BURHAM,

O. C. BAKER,

J. F. FESTION,

J. F. SCAIFFE.”

They deny their liability, in solido, or that they are sureties.

After the case had been tried and submitted, but before judgment the defendants offered to file the plea of division. This was objected to on the grounds that it came too late, and that many of the co-sureties were then insolvent. The judge a quo refused the plea properly.

Division is a right accorded to sureties. C. C. 3049. But they can not claim this benefit while denying their obligation as surety. The plea is inconsistent with their answer denying their liability. Pothier says: “Enfin les lois refusent l’exception de division aux cautions qui ont commencé par dénier de mauvaise foi leur cautionnement.” Yol. 1, p. 403, §417.

The obligation sued upon is manifestly one of suretyship; and solidarity is of the nature of that contract. Pothier vol 1, p. 402, §416.

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


text:
    No. 460.
    A. B. and N. B. Thomas v. Henry Fuller. James C. Cooper, Grarnishee.
    Cooper tlie garnishee in this case'answered the interrogatories, acknowledging his indebtedness to Fuller, the defendant, and some time afterwards he filed another set of answers the effect of which is to release himself from any judgment in this suit. This can not be allowed. The object of such interrogatories is to elicit the truth, and ample opportunity is afforded to the person interrogated to answer clearly, fully and unequivocally; If he does not properly avail himself of such opportunity, it is his own fault.
    Appeal from the Fourteenth Judicial District Court, parish of More-house. Bay, J.

      Todd & Brigham, for plaintiffs and appellees. S. G. Parsons, for defendant and appellant.
   Ludeling, C. J.

This is a suit for the price of a tract of land. The defendant, being a non-resident, an attachment was obtained, and Cooper and others were garnisheed.

Judgment for the price of the land and against the garnishee, Cooper, was correctly rendered. It appears that Cooper answered the interrogatories acknowledging his indebtedness to Fuller, and some time afterwards he filed another set of answers, the effect of which is to release himself from any judgment in this suit. This can not be allowed.

“The object'of such interrogatories is to elicit the truth, and ample opportunity is afforded to the person interrogated to answer clearly, fully, unequivocally. If he does not properly avail himself of such opportunity it is his own fault. A practice once admitted of allowing suitors to amend their affidavits ad libitum would probably induce inconvenience and delays, and in many instances perjury.” 5 La. 83; 19 An. 374.

The appellee has asked for damages for a frivolous appeal, but he has waived that right by asking for an amendment of the judgment, although the amendment is refused.

It is ordered that the judgment of the lower court be affirmed with costs of appeal.

Rehearing refused.


author: Taliaferro, J..

text:
    No. 478.
    N. B. Adams v. B. H. Dinkgrave et als.
    The sheriff of a different parish from the one in which the suit is instituted is not required by law to serve civil process in his own parish, which has emanated from the parish where the suit was instituted, without being paid in advance the fees established by law for such service.
    Section 7 of the act of 1870, p. 165 (Bay’s Bevised Statutes, p. 369, section 17,) applies only to the sheriff and clerks of the parishes in which the suits are instituted.
    In this case it is not found in the record that the defendant, sheriff of the parish of Ouachita, was informed of the near approach of the period which was to extinguish plaintiff’s claim by prescription, nor that the plaintiff used that degree of diligence which would naturally be expected from men of prudence and caution to avoid a heavy loss.
    "Without leaving out of view the important fact that public officers should be held strictly responsible for injuries or loss that may arise from a refusal or culpable neglect to perform their duties, this court must advert to the want of right in litigants to require their-services without reasonable assurance of the payment of the fees allowed them by law, and without subjecting them to delay or inconvenience in receiving the same.
    Appeal from the Fourteenth Judicial District Court, parish of Ouachita. Hay, J.
    Jury trial. T. S. Sawyer, Oobb & Gtmby, for plaintiff and appellant. Morrison <& Farmer, for defendant appellee.
   Taliaferro, J..

This is an action upon a sheriff’s bond against the sheriff and his sureties to make them liable in solido to the plaintiff in the sum of two thousand dollars for an alleged gross and culpable failure and neglect on the part of the sheriff to serve certain process on a party residing in the parish of Ouachita, in a suit instituted against him in the parish of Tensas by the plaintiff. The plaintiff complains that haying brought suit in the last named parish against one James Bowman on three mortgage notes, praying judgment thereon with recognition of mortgage, he caused a deposit of ten dollars to be made, and a duly certified copy of the petition and amended petition in that case together with citation and copy of the same according to law, to be procured and sent by mail through his attorney residing at Yidalia, parish of Concordia, to the defendant at Monroe, La., with special instructions to him to have service of the papers made immediately upon Bowman who is a resident of tiie parish of Ouachita, and to forward his fee bill for services to C. W. Allen, of New Orleans, a merchant there, for payment; that the sheriff refused and neglected to serve the papers thus sent to him and in consequence of this failure to perform his duties required of him by law, the last note of the series became prescribed by the lapse of five years from its maturity, whereby a loss of two thousand dollars with eight per cent, per annum interest from the fifteenth of March, 1857, resulted to the plaintiff.

The answer of the defendant sets up various defenses. He avers that the law' provides bow the fees of sheriffs are to be secured and paid; that the defendant can not be required to serve judicial documents and send his fee bill to any individual whomsoever for payment; that the plaintiff’s petition discloses the fact that no sufficient legal steps were taken by the plaintiff to place defendant in default so as to be enabled to compel him to serve judicial documents; that a sheriff can not be compelled to serve such documents unless money, cash in hand, is actually deposited according to the provisions of law, so that out of such actual cash deposit the sheriff can receive his fees in money when he makes return of service. He alleges that when a litigant requires such service of a sheriff and requires him besides to undergo the risk, inconvenience and exposure of obtaining his fees from some private party, he proposes simply an ordinary private contract to the sheriff which the latter may reject without further consideration and without notice of the rejection of the proposition to the proposer. The defendant denies generally all the allegations of the petition.

The case' was tried before a jury.

Judgment was rendered in favor of the defendant and the plaintiff appeals.

There is a motion to dismiss this appeal on the ground that the record does not contain all the evidence introduced on the trial of the case in the court below. We find that the evidence omitted, if it were in the record, would be of no effect in favor of either of the parties in the decision of the case and therefore overrule the motion to dismiss.

There are several bills of exception in the record, but we do not consider it necessary in the decision of this case to examine them.

The principal inquiry in this case appears to be: can a sheriff of a different parish from the one in which the suit is instituted, be required by law to serve civil process in his own parish which has emanated from the parish where the suit was instituted, without being paid in advance the fees established by law for such service? Section 7 of act of 1870, page 165 (Rays Revised Statutes, page 369, section 17), is relied upon by plaintiff to show that the sheriff is not entitled to receive fees in advance for his services.

The law referred to provides that a party about to institute a suit shall deposit with the clerk .ten dollars if the suit is brought in the district court and five dollars if brought in the parish court, to beheld by the clerk to pay the costs of the clerk and sheriff in such cases, the clerk retaining one half and the other half to be paid over to the sheriff as fast as his fees accrue until the amount to which he is entitled is exhausted,” etc.

This law, the defendants contend, applies only to the sheriff and clerks of the parishes in which the suits are instituted. This construction we think correct. No provision of the kind is made for clerks and sheriffs of other parishes than those in which the suit is filed when the latter are required to serve process emanating from other parishes. In the case at bar ten dollars were deposited with the clerk of the parish of Tensas, when the plaintiff’s suit was filed in that parish against Bowman. That deposit was for the fees of the clerk and sheriff of that parish. The sheriff of the parish of Ouachita would have no right to claim to be paid out of that fund for services rendered in the parish of Ouachita.

One object certainly in the enactment of the statute in question was to insure the payment of clerk’s and sheriff’s fees in the parishes where they reside, and perform their official duties, and to relieve them from the trouble and annoyance often amounting to a loss of their fees, by having to collect them- as best they may from irresponsible persons or persons residing in distant parishes.

No deposit of money for costs in the parish of Ouachita was made in this case. On the contrary, the plaintiff’s attorney had no expectation of the fees of the sheriff of Ouachita being paid out of the ten dollars he deposited in the parish of Tensas, for he directed that sheriff to send his bill of fees to be paid by a merchant in New Orleans. The sheriff of the parish of Tensas could not have been required to render-services in the case unless secured by a deposit of the sum of money required by law. Was the sheriff of Ouachita, for services to be rendered by him in the same case, placed im, duriore cam ? We do not find in the record that the sheriff of the parish of Ouachita was informed of the near approach of the period which was to extinguish the plaintiff’s claim by prescription, nor that the plaintiff or his attorney used on this occasion, that degree of diligence which would naturally be expected from men of prudence and caution to avoid a heavy loss. In the case of Bloomfield v. Jones et al., 2 An. p. 936, and in Sandridge & Co. v. Jones, et al., 2 An. p. 933, and also in Anderson v. Joliet 14 An. 615, this cour-t has placed some stress on cases of this kind upon the fact of whether or not the officer was notified that dispatch was necessary in the execution of the process to prevent impending loss by prescription or otherwise. ,

Without leaving out of view the important fact that public officers should be held strictly responsible for injuries or loss that may arise from a refusal or culpable neglect to perform their duties, we must advert to the want of right in litigants to require their services without reasonable assurance of the payment of the fees allowed them by law, and that without subjecting them to delay or inconvenience in receiving them. From a careful examination of this case, we conclude that the decree of the lower court should be maintained.

Mr. Chief Justice Ludeling recused.

Judgment affirmed.

Eehearing refused.


text:
    No. 501.
    John N. Coleman v. John J. Hope.
    The defendant, ex-aheriff, having turned over all the papers, writs, etc., of his office, including the receipts of the keepers of the property attached, to his successor, without objection, while the attachment' writs were pending and long before this and the other plaintiffs had obtained judgment, and the incoming sheriff having accepted the keepers of said property and made them his own, the defendant (out-going sheriff) is, under such circumstances, released from responsibility for its safe keeping.
    Appeal from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Land & Taylor, for plaintiff and appellant. Nutt & Leonard, for defendant and appellee.
   Howell, J.

In July 1868, the plaintiff instituted suit by attachment against the old Southern Pacific Eailroad Company, and caused certain property to be attached and taken into the possession of the defendant herein, who was then sheriff of Caddo parish. In February 1871, judgment was rendered in said suit in favor of the plaintiff with privilege upon iihe property attached,' on which execution issued and demand was made by the present sheriff on the defendant for delivery of said property, and upon his failure to comply, this suit was instituted to recover the amount of the judgment and costs in the first suit.

The defendant pleaded the prescription of one, two and three years, and answered, besides the general denial, that the property attached in the said suit of the plaintiff had been long before attached.in those suits against the same company, and the plaintiffs therein have a preference over this plaintiff for an amount largely exceeding the value of the property; that said property is not worth over two hundred dollars; that it was, when attached, put in the charge of competent and trustworthy keepers, in whose hands it remained until defendant went out of office in April 1869, when he turned over all the papers, writs, etc., of his office to his successor, and he has since had no control of the said property and is not responsible therefor, but if held responsible he claims the keepers’ fees.

Prom a judgment in favor of defendant plaintiff has appealed.

We think, under the circumstances of this case, the court a qua did not err. When the defendant turned over all the papers, writs, etc., of his office, including the receipts of the keepers of this property, to his successor, without objection, while the attachment suits were pending, and long before this and the other plaintiffs had obtained judgment, the successor, the in-coming sheriff, accepted the keepers of said property and made them his own, and hence the defendant, the outgoing sheriff, was released from responsibility for its safe keeping.

Judgment affirmed.

Rehearing refused.


author: Wtlt, J.

text:
    No. 501.
    A. L. Gervin v. J. H. Beaird.
    The defendant is bound by the pleadings he filed through his counsel. Without disavowing the authority of the pleadings, he can not come into court, two years atter he has raised the issue of payment, which admits the debt, and shift his defense by setting up an inconsistent plea — a denial of the indebtedness.

      A litigant will not be permitted to shift his position in order to escape the consequences of his solemn judicial admissions standing on the record for nearly two years.
    Appeal from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Land & Taylor, for plaintiff and appellant. Egan & Wise, for defendant and appellee.
   Wtlt, J.

This case presents a question of practice. The plaintiff sued the defendant on an account, and citation was served personally on the twelfth of February, 1872. On the twenty-seventh of April, 1872, the defendant answered, pleading payment. On the ninth of April, 1874, nearly two years after issue joined, the defendant filed the following motion:

,cNow comes the defendant and moves the court for leave to withdraw the original answer filed in this case, and to substitute therefor averments which he now makes, that he is in no manner indebted to the plaintiff, as alleged, and that he so informed his attorneys and instructed them so to plead j avers the answer already filed was without his knowledge and filed by his attorney through haste and inadvertence, and that he should not be bound or prejudiced thereby, and in support of this application presents the affidavits of his attorney.”

The motion was sustained by the court, and the plaintiff took a bill of exceptions.

We think the court erred. The defendant is bound by the pleadings he pleaded through his counsel. Without disavowing their authority, he can not come in two years after he has raised the issue of payment, which admits the debt, and shift his defense by setting up an inconsistent plea, a denial of the indebtedness. If he did not instruct his counsel to plead payment, how did they know that there was such a defense ?

A litigant will not be permitted to shift his position, as was attempted in this case, in order to escape the consequences of his solemn judicial admissions standing on the record for nearly two years. The defendant has failed to prove the allegation of payment.

It is therefore ordered that the judgment herein, in favor of defendant, be annulled, and it is ordered that plaintiff recover of the defendant thirteen hundred and fifty-three dollars, with legal interest thereon from the twelfth of February, 1872, and costs of both courts.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 454.
    State ex rel. L. A. Cormick v. S. R. Richardson.
    In this suit under the intrusion into office act, the clear explicit language of the twelfth section of the aot of the Legislature of the twenty-first of March, 1874, declaring that the mayor oí the town of Homer shall receive a salary of five hundred dollars a year with no other fees or emoluments of office, and the other portion of said statute authorizing the mayor to act as justice of the peace, can not, under the allegation that as justice of the peace he is entitled to fees, be so construed as to give jurisdiction of the case to the district court.
    APPEAL from the Eleventh Judicial District Court, parish of Clai-J_1 borne. Trimble J.

      Egan & Hays, for relator and appellant. J. & J. W. Young, for respondent and appellee.
   Taliaferro, J.

This is a suit brought under the intrusion into office act. It was dismissed by the court below for want of jurisdiction, on the ground that the matter in. dispute does not exceed five hundred dollars. The contest is for the mayoralty of the town of Homer. By section twelve of the act of the Legislature of the twenty-first of March, 1874, the salary of the mayor is fixed at “ five hundred dollars and no more, with no other fees or emoluments of office.” By this act the mayor is authorized, to act as justice of the peace, and on the part of the relator it is argued that in that capacity he would be entitled to fees for services rendered, the amount of his salary and fees as justice of the peace would exceed five hundred dollars, the petition alleging the office to be worth seven hundred and fifty dollars. This construction we think can not be maintained against the clear explicit language used in declaring that the mayor shall receive a salary of five hundred dollars a year, with no other emoluments of office.

Judgment affirmed.


author:
Morgan, J.
      Ludeling, C. J.,

text:
    No. 476.
    Mrs. Sarah Richardson v. B. H. Dinkgrave, Sheriff, et al.
    The Ingleside plantation was seized and sold in the suit of Rargoud v. Mrs. Richardson. Rargoud became the purchaser. The seizure was not released, neither did Mrs. Richardson leave the plantation which is situated within a short distance of the residence of the sheriff and Rargoud. She cultivated the land and made thereon a crop of cotton and corn with her own means, except three hundred dollars, which the sheriff paid to the hands and which were returned to him. After she had removed some of the cotton, she-was injoined fcom taking any thing more off the place.
    The injunction was properly dissolved. It is impossible, under the circumstances, for Rargoud and Dinkgrave not to have known that she was cultivating the plantation. There is neither law nor justice in depriving her of what she made.
    Appeal from the Fourteenth Judicial District Court, parish of Ouachita. Bay, J.

      Morrison & Farmer, for plaintiff and appellee. 8. B. MoEnery, Oobb <& Gunby, for defendants and appellants.
   Morgan, J.

The Ingleside plantation was seized in the suit of Pargoud v. Richardson on the fourteenth February, 1873. Mrs. Richardson injoined the sale. The injunction' was dissolved, and on the seventh February, 1874, it was sold and Pargoud became the purchaser.

The seizure in the suit of Pargoud v. Richardson was not released; neither did Mrs. Richardson leave the plantation. The plantation is situated within a short distance of the residence of the sheriff and Pargoud. She cultivated the land and made thereon a crop of cotton and corn with her own means, except three hundred dollars, which the sheriff paid to the hands and which were returned to him.

After she had removed some of the cotton she was injoined from taking anything more off the place.

The injunction was properly dissolved. It is impossible, under the circumstances, for Pargoud and Dinkgrave not to have known that she was cultivating the plantation. We think there is neither law nor justice in depriving her of what she made.

Judgment affirmed.

Ludeling, C. J.,

dissenting. In this case I dissent on the grounds, that the sheriff, who had under seizure the property of the plaintiff, had the right to prevent the plaintiff from removing from the place under seizure any of the cotton or corn hanging by the root on the place, whether the plaintiff be regarded as a lessee, as negotiorum gestor, or as a trespasser. If she be regarded as lessee, the rents must be paid before the crops could be removed; if she be negotiorum gestor or a trespasser, all she could demand was the expenses for making the crop.

Under the textual provisions of the Code, the growing crops, hanging by the roots, form part of the realty, and therefore must be recognized as under seizure with the plantation, and under the control of the officer who made the seizure.

Howell, J. I concur in the above dissenting opinion.

Rehearing refused.


author: Morgan, J.

text:
    No. 447.
    Thomas B. Killgore v. M. P. Nicholson et als.
    If the Claiborne Manufacturing Company was insolvent when Nicholson, one of the defend* ants, obtained his judgment, which is now sought to be annulled, it does not appear that he knew it. Had he known it, there was no reason why he should not have prosecuted his claim. The board of directors had expressly authorized the president of the com* pany to confess judgment in Nicholson’s favor. This they had the authority in law to do.
    Appeal from the Eleventh Judicial District Court, parish of Claiborne. Trimble, J.

      Egan é Sages, for plaintiff and appellee. J. & J. W. Young, for defendant and appellant.
   Morgan, J.

On the thirteenth January, 1870, Josiah Barron, as President of the Claiborne Manufacturing Company, executed his promissory note in favor of M. T. Nicholson for $684 86, payable one day after date.

In October, 1872, Nicholson instituted suit against the company to recover the amount of this note, and the president thereof, on the fifteenth October, 1872, accepted service of the petition, waived legal service, citation and time, and conféssed judgment as claimed.

On the twenty-second October, 1872, judgment was rendered upon this- confession in Nicholson’s favor.

On the twentieth May, 1873, Killgore, the present plaintiff, alleging himself to be a stockholder in the Claiborne Manufacturing Company, and a creditor thereof, and alleging that the defendant, Nicholson, had obtained the judgment above referred to; that at the time the judgment was rendered the corporation was insolvent, to the knowledge of the president thereof, as well as to Nicholson, who is the president’s son-in-law, and who both knew that the judgment would be a legal fraud upon the plaintiff and the other creditors of the corporation, thereby giving to Nicholson a judicial mortgage and privilege over the other creditors of the corporation; alleging further that the president was entirely without authority to confess judgment and bind the corporation, and that therefore the act of the president, not being the act of the corporation, was not binding thereon; alleging further that the note sued on by Nicholson was in reality the property of Joshua Willis, the president; and finally alleging that Nicholson had issued a fieri facias upon his judgment, asked for and obtained an injunction prohibiting him from executing the same, and also prayed that the judgment obtained by Nicholson be declared null and void.

The injunction issued as prayed for. After hearing it was made perpetual, and the judgment was annulled. Nicholson has appealed.

The evidence does not, in our opinion, sustain the judgment. If the company was insolvent when Nicholson obtained his judgment, it does not appear that he knew it. Even if he had known it, there was no reason why he should not have prosecuted his claim. There is no evidence that the president of the company was the true plaintiff in the case, and the board of directors expressly authorized him to confess judgment in Nicholson’s favor. This they had the authority in law to do.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that the injunction herein granted be dissolved, the costs to be paid by appellees.


text:
    No. 502.
    Frank Stevens v. Older & Chandler. P. T. Barnum & Co. Intervenors.
    Older & Chandler, the defendants in this ease, were not the owners of the property attached. The document relied upon to establish their ownership is not an unconditional sale. It was a mere agreement that whenever they should pay a certain amount of money, the property should be transferred, In the meanwhile the property belonged to Barnum & Co., and was hired by them to Older & Chandler, and was not liable to be seized to pay the debts of the latter.
    Appeal from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Nutt & Leonard, N. O. Blanchard, for plaintiff and appellee. T. Alexander and A. N. O. Hides, for intervenors and appellants.
   Morgan, J.

On the twenty-third January, 1873, P. T. Barnum & Co., owners of a museum, menagerie and circus, then in Algiers, Louisiana, agreed to rent their show to Older & Chandler, giving to them the right to purchase the same, and Older & Chandler agreed to purchase it. The price of the show was fixed, at $50,000, and the rental thereof it was agreed should be seven per cent, per annum on that valuation, commencing from the first January, 1873, Barnum & Co. agreeing to assist Older & Chandler to equip and place the show on the road if necessary, and to advance them $5000 for that purpose.

All the receipts of the show over and above its daily expenses, and a reserve of $2000, to be kept in the treasury in case of emergency, was to be remitted daily to P. T. Barnum & Co. The funds thus remitted were to be applied, first, to the repayment of whatever money might have been advanced for equipping the show; second, to the rental of the show, and, third, to the purchase thereof. When the last named sum should have amounted to $50,000, Barnum & Co. agreed that they would convey the entire property to Older & Chandler. It was further agreed that the name of Barnum should not be used on any bill, wagon or other property of the circus. Barnum & Co. reserved the right to take the rhinoceros at $7000 in case the one they then had in New York should die.

Under this agreement the company started on its travels. When it reached Shreveport its affairs seem to have been in a bad condition. The plaintiff, one of the employes, sued them. As they were nonresidents, he proceeded by attachment. The property which comprised the show was attached. It was subsequently sold. Barnum & Co. intervened, asserted their right to the property, claimed the proceeds of the sale, and asked for damages in the sum of $10,000 and special damage as counsel fees for $500.

There was judgment in favor of the plaintiff and against the defendants, with privilege on the property attached, and dismissing the intervention and third opposition. Barnum & Co. appeal.

Older & Chandler were not the owners of the property attached. The document relied upon to establish their ownership is not an unconditional sale. It was a mere agreement that whenever they should pay a certain amount of money the property should be transferred. In the meanwhile the property belonged to Barnum & Co., and was hired by them to Older & Chandler, and was not liable to be seized to pay their debts.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, in so far as it dismisses the intervention of P. T. Barnum & Co.; that said intervention be maintained, and the proceeds of the sale of the property attached herein be paid over to them, P. T. Barnum & Co., and that the right of the said P. T. Barnum & Co. to proceed for damages on the attachment bond be reserved; plaintiff to pay costs in both courts.

Rehearing refused.


text:
    No. 507.
    C. C. Edey v. City of Shreveport. Gregg & Ford v. The same. Steers & Carlton v. Same. S. B. Steers v. Same. W. Johnston & Co. v. Same. Consolidated cases.
    The City Council of the city of Shreveport having under its charter the right to purchase property, had the right to secure the credit portion of the price by stipulating a mortgage and the vendor’s privilege on the property purchased in favor of each vendor and agreeing not to prejudice the right of mortgage and privilege by any alienation or incumbrance, and to pay the costs or fees incurred by the vendors in enforcing their rights thus preserved. These were all incidents of the contract of sale.
    The very fact that the city purchased the property for the purpose of donating it to the Texas and Pacific Railroad Company for their depots, made it the moré prudent in the vendors to require the pact de non alienando, and militates against the presumption of their consenting to waive it.
    If there could be any doubt about the authority of the mayor to represent the city in these sales, and to mate the stipulations referred to, his acts were ratified by the acceptance of the transfers and the donation of the purchased property to the railroad company, in which the several acts of sale were referred to.
    The attempted exclusion in this act of donation, of any intention to ratify the onerous stipulations under consideration, was without effect against the vendors. The contract of sale as a whole was ratified.
    Apeal from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      W. 0. Blcmehard, T. Alexander, for plaintiffs and appellees. JEgan <& Wise, for defendant and appellant.
   Howell, J.

The plaintiffs in these several cases are seeking, via ordinaria, to enforce the mortgage and vendor’s privilege upon property sold by them respectively to the city of Shreveport. The answer denies the power of the city of Shreveport to execute the notes and mortgage; denies that they were ever executed by said city or its authority; denies specially the right of the person or persons professing to sign said instruments, to stipulate on behalf of said city to pay attorney’s fees and eight per cent, interest; to waive appraisement; to insert the pact de non alienando and to pay costs of copies.

From judgments in favor of the several plaintiffs the defendant appealed.

The Texas and Pacific Railroad Company, as third person, obtained an order of appeal, but has not perfected the appeal, and it is therefore unnecessary to notice the motion to dismiss the same. The record shows that an ordinance was adopted authorizing the purchase of the property in question and the issuance of bonds to provide the means of paying for it, out of the sale of some of which half the price was paid in cash, and for the balance the notes in suit were given, signed by the mayor, who also signed the several acts of sale. The corporation, under its charter, had a right to do this. Having a right to make the purchase it had the right to secure the credit portion of the price by stipulating a mortgage and the vendor’s privilege on the property purchased in favor of each vendor, and agreeing not to prejudice the right of mortgage and privilege by any alienation or incumbrance, ánd to pay the costs or fees incurred by the vendors in enforcing their rights thus preserved. These were all incidents of the contract of sale, the right to insist upon which was included in the right to make the purchases and secure the unpaid portion of the price. The very fact that the city purchased the property for the purpose of donating it to the Texas and Pacific Railroad Company for their depots, made it the more prudent in the vendors to require the pact de non alienando rather than a presumption of waiving it.

If there could be any doubt about the authority of the mayor to represent-the city in these sales and make the stipulations referred to, his acts were ratified by the acceptance of the transfers and the donation thereof to the railroad, in which the several acts of sale were referred to. The attempted exclusion in this act of donation of any intention to ratify the onerous stipulations under consideration, was without effect against the vendors. The contract of sale as a whole was ratified.

Judgment affirmed.


text:
    No. 436.
    Mrs. Martha Grayson, Administratrix, and in her own right, v. John Buie.
    The question in this case is, whether at the expiration of a three years’ lease, the defendant delivered a certain plantation with its buildings and appurtenances in a good state of repair, as he had bound himself to do.
    Plaintiff having excepted to the introduction of testimony to show that the boards which were retained on one side of the house were as good as new, the judge a quo erred in maintaining the exception. The defendant’s contract was to cover the house with good boards. Whether the boards were old or new matters not.
    The judge a quo did not err in refusing the defendant the right to prove in what condition the leased premises were when he took possession of them. Whatever their condition was then, his obligation was to restore them in good repair. Neither did he err when refusing to admit in evidence plaintiff’s re.ceipt for rent. She was not suing for rent but for damages. There was error, however, in refusing to prevent the defendant to establish that, when the money for the lease was paid, the plaintiff expressed herself satisfied with the condition of the premises.
    The judge a quo erred also in not permitting the defendant to prove that the matters involved in this suit had been adjusted before proceedings were taken. His payment of the rent may have been made only upon the stipulation that it was to be regarded as a final settlement between them.
    It was proper to reject the testimony offered to prove that the fences of the leased premises were in as good condition as those of the neighbors; that they were sufficient to keep the stock in as well as out; that their state of dilapidation was the result of natural decay, etc. The only question was whether they were in a good condition at the expiration of the lease.
    Appeal from the Twelfth Judicial District Court, parish of Franklin. Guny, J.
    Jury trial. Morrison & Farmer, for plaintiff and appellee. 8. L. Flam, ior defendant and appellant.
   Morgan, J.

Plaintiff leased a plantation, situated on the Bceuf river, to the defendant for three years. The terms of the lease were two hundred dollars per annum, defendant agreeing to recover the dwelling house with good cypress boards, three feet long, showing one foot to the weather; he was to keep the place in good order, put new posts under the gin sheds; was to have the use of the mill and gin; and at the end of three years deliver the place in good repair. The rent seems to have been paid. The suit is brought to force the defendant to put the place in good repair, in such time as the court may think reasonable, or in default that he be condemned to pay one thousand five hundred dollars additional damages in consequence of plaintiff’s not being able to lease the place on account of its bad condition when the defendant left it. There was judgment in favor of the plaintiff for seven hundred and fifty dollars. Defendant appeals. The house was recovered, but the evidence showed that on one side of the roof the old boards were retained. Defendant then attempted to show that the boards complained of were as good as new. To the introduction of this testimony plaintiff excepted and the exception was maintained The judge erred. The defendant’s contract was to cover the house with good boards, whether the boards were old or new mattered not.

The judge did not err in refusing the defendant the right to prove in what condition the leased premises were when he took possession of them. Whatever their condition was then his obligation was to restore them in good repair, and the question was, were they in good repair when they were returned. Neither did he err in refusing to admit in evidence plaintiff’s receipt for the rent. She was not suing for rent, but for damages. He did, however, err in refusing to permit the defendant to establish that when the money for the lease was paid, plaintiff expressed herself gratified with the condition of the leased premises. We think he erred also in not allowing the defendant to prove that the matters involved in the suit had been adjusted before proceedings were taken. His payment of the rent may have been made only upon the stipulation that it was to be regarded as a final settlement between them.

Defendant offered to prove by a witness that the fence inclosing the leased premises was, when he returned them, in as good repair as other fences inclosing plantations in the same neighborhood. The judge did not err when he refused to admit this testimony. The contract referred to no fences except those surrounding the property leased by the plaintiff. The condition of the fences of other people, or whether there were any fences on their property or not, was not a matter of any particular concernment to her. Neither did he err in not allowing the defendant to prove that the fence was sufficient to keep out the stock j that no stock broke through the fence; that the dilapidated condition of the fences was the natural result of decay; that the ditches had been cleaned out in 1871. The only question being, as we have seen, what was the condition of the place when it was given up, and had the defendant complied with his contract ? The errors, however, which we have pointed out, renders it necessary that the case should be remanded.

It is therefore ordered, adjudged and decreed that the verdict of the jury be set aside, and the judgment of the district court rendered thereon be avoided, annulled and reversed, and that the case be remanded to the district court to be proceeded in according to law and according to the views herein expressed, plaintiff to pay costs of appeal.

Rehearing refused.


text:
    No. 388.
    M. E. Daniel, Tutor, v. J. A. Ivy et als.
    The defendants who are sued hy certain heirs, as third possessors of an undivided half of the land described in fclie petition and sold by their father after the death of their mother, excepted to the right of the .plaintiff's to recover until a settlement was made of the community that existed between the parents of the plaintiffs, showing a residuary interest in the succession of the deceased spouse. The exception is fatal, and the suit must be dismissed.
    Appeal from the Fourteenth Judicial District Court, parish of More-house. Bay, J.

      Todd and Brigham, for plaintiff and appellee. Bewton cfe Mall, W. T. Mall, JD. 0. Morgan, for defendants and appellants.
   Howell, J.

The heirs of M. A. Daniel, deceased wife of W. R. Mayo, sue the defendants as third possessors for an undivided half of the land described in the petition, and sold by their father after the death of their mother.

The defendants excepted to the right of plaintiffs to recover until a settlement was made of the community that existed between the parents of the plaintiffs, showing a residuary interest in the succession of the deceased spouse.

This exception was overruled, an answer was filed, and after having judgment rendered in favor of plaintiffs, defendants appealed.

In the case of D. Phelan et als. v. Charles Ax, 25 An., where the same issues were presented, the exception pleaded therein was maintained and the right of action denied. The same ruling has since been made and we consider the question now settled.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendants maintaining their exception, and dissolving this suit with costs in both courts.


author: Wyly, J.

text:
    No. 458.
    Mrs. T. J. Mangrum and Husband v. Mrs. C. Norsworthy, Tutrix.
    There is no validity in the defense that, as the plaintiff who sues for the settlement of a commercial partnership, was not separated in property from her husband, the funds which she put in belonged to the community and she has no right of action.
    Plaintiff has the right to sue for a settlement, if she was a partner, because this essential right exists in every partnership. Whether the capital which she put in belonged to her or not is a question that does not concern the defendant. Plaintiff’s husband, having signed the contract of partnership, authorizing her to make it and having also authorized her to bring this suit, can never demand of the defendant the funds put in by his wife, whether they belonged to the community or not.
    Appeal from the Fourteenth Judicial District Court, parish of Morehouse. Bay, J.

      Todd & Brigham, for plaintiffs and appellants. Newton & Ball, for defendant and appellee.
   Wyly, J.

This is a suit for the settlement of a commercial partnership. The petition alleges in substance: That on the twentieth of January, 1869, Mrs Mangrum, one of the plaintiffs, entered into a contract of partnership with one D. W. Norsworthy, whose succession is represented by the defendant, Mrs. C. Norsworthy, tutrix, for the purpose of carrying on a family grocery in the town of Bastrop; that the business was to be conducted in the name of Norsworthy alone, and each of the partners were to contribute equally in capital, and share equally in the profits of the concern; that plaintiffs had put into the partnership two thousand dollars, and that the profits of the business amounted to at least fifteen hundred dollars; that the partnership lasted one year under the contract, and that Norsworthy died before any settlement of the same. They prayed that a settlement of the partnership be decreed, and for judgment for the two thousand dollars invested by plaintiff, Mrs. Mangrum, in the partnership, and one-half of the profits of the business.

The defendant answered by a general denial.

There was judgment of nonsuit and the plaintiff appeals. The contract of partnership is in the record, and it shows that the plaintiff and D. W. Norsworthy were equal partners, each putting in the business an equal amount of capital.

The assets of the partnership consist of claims against various persons for goods sold on credit, amounting in the aggregate to $3278 58. There appears to be no debts. The assets should be divided between the partners equally.

The defendant, however, contends that as the plaintiff was not separated in property from her husband, the funds which she put in belonged to the community and the plaintiff has no right to sue.

Plaintiff has the right to sue for a settlement of the partnership if she was a partner, and of this, in view of the evidence, there can be no doubt; because this essential right exists in every partnership.

Whether the capital which she put in belonged to her or not is a question that does not concern the defendant. If she had stolen the money which was invested by the partnership, it would be no reason why there should not be a settlement between the partners. Plaintiff’s husband signed the contract of partnership authorizing her to make it. He also authorized her to bring this suit. He can never demand of the defendant the funds put in by his wife, whether they belonged to the community or not.

As the accounts which compose the assets may not all be owing by solvent persons, and as they can not well be divided in kind, we have concluded to order the sale thereof and direct that the proceeds be equally divided between the plaintiff and defendant.

It is therefore ordered that the judgment appealed from be annulled, and it is ordered that the accounts in the record be sold according to law, and that the sheriff after deducting the expenses of the sale pay over the proceeds, one-half to the plaintiff and the other half to the defendant.

■ It is further ordered that defendant pay costs of this suit in both courts.

Rehearing refused.


author: Wylt, J.

text:
    No. 440.
    J. W. Wilson, Administrator, v. J. A. Chalaron et al.
    The law expressly allowed defendent, J. A. Chalaron, to make a giving in payment to his wife, and it was his duty to cause the registry of her mortgage to be made. This settlement with his wife can be corrected by his creditors, if found to be erroneous and to their prejudice. If the defendant believed the suits in which he confessed judgment were just demands against him, it was not only his privilege, but his duty to admit their correctness or confess judgment. This is no ground for attachment.
    Appeal from the Eleventh Judicial District Court, parish of Claiborne. Trimble, J.

      A. JB. George and J. D. WatUns, for plaintiff and appellant. JBgan and Hayes, for defendant and appellee.
   Wylt, J.

The plaintiff appeals from the judgment dissolving on motion his attachment sued out against the defendant, Joseph A. Chalaron, on the ground that he was mortgaging and disposing of his property with intent to defraud his creditors.

The proof shows that the defendant confessed judgment in two suits against him, and also made a giving in payment to his wife and caused to be recorded her legal mortgage.

The law expressly allowed him to make a giving in payment to his wife, and it was his duty to cause the registry of her mortgage to be made. The settlement with his wife can’ be corrected by his creditors if found to he erroneous and to their prejudice. It is no ground for an attachment. It is the duty of suitors to be candid, and if the defendant believed the suits in which he confessed judgment were just demands against him, it was not only his privilege but his duty to-admit their correctness or confess judgment. This is no ground for an attachment. Nor was the sale a disposition of his crop. An attachment is a harsh remedy, and those who wish to use it should see that their case come strictly under the provisions of the law.

Prom the evidence we are satisfied the defendant has not mortgaged or disposed of his property with intent to defraud liis creditors. See 22 An. 531.

Judgment affirmed.


author: Mor&an, J.

text:
    No. 468.
    Steamer Stella Block v. The Parish of Richland et al.
    The plaintiff is a peddler or hawker, and was selling his wares in the parish of RiohlandWhether he carried them in a pack, in his hand, or on a steamboat, matters nothing. However they were carried, the parish had the authority to demand the payment of a. license for the sale thereof, and this without infringing upon the provisions of the constitution of the United States concerning the regulation of commerce.
    Appeal from the Parish Court, parish of Richland. McIntosh, J.

      Wade JR. Young, M. J. IAddell, P. H. Toler, for plaintiff and appellant. W. JY. Potts, District Attorney, pro tem. for defendant and appellee.
   Mor&an, J.

Plaintiff paid, without objection, so far as we can learn, a tax of one hundred dollars.

He seems to be the owner of a steamer named the Stella Block. The tax was levied upon him as a license to trade as a peddler or hawker in the parish of Richland. He says the levy of this tax was an unconstitutional act on the part of the authorities of the parish of Richland and he claims it back.

The plaintiff is a peddler or hawker, and he was selling his wares in the parish of Richland, Whether he carried them in a pack, in his hand or on a steamboat, matters nothing. However they were carried, the parish had the authority to demand the payment of a license for the sale thereof, and this without infringing upon those provisions of the Constitution of the United States by which the regulation of commerce between the States is vested in Congress.

Judgment affirmed.

Rehearing refused.


author: Hówell, J.

text:
    No. 504.
    Jacob Hoss v. J. G. McWilliams, Executor.
    The plaintiff in injunction, Mrs. Murphy, sets up, among other grounds, that she has an interest and ownership in the lots ordered to be seized and sold, superior to the mortgage of Hoss, the plaintiff in execution — which mortgage was granted to Hoss by her husband, now deceased, to guarantee the payment of two promissory notes, and which she alleges to be a fraud upon her rights and void.* She further alleges that she has a claim against the succession of her husband for rents and revenues which were under his control and administration, and which were received and converted by him to his own use; that being a party in interest, she was entitled to notice in the executory proceeding, which was not given to her, but only to McWilliams, the executor of her husband. She further avers nullity of the proceeding on the ground of want of jurisdiction in the district court that rendered the order of seizure — the succession being now under administration in the parish court, and was so at the time the order of seizure was granted 5
    Held — That the grounds urged by the plaintiff in injunction do not authorize the injunction. The district court had jurisdiction to issue the executory process, and the rights asserted by the wife are not such as to justify the injoining of the sale of the husband’s property, or property of the community. If she has real rights upon such property, they can be enforced upon the proceeds. If her rights are merely usufructuary, they will not be affected by the sale injoined, as it is only the naked ownership of the property that is sought to be sold.
    Appeal from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Egan & Wise, for plaintiff and appellant. Nutt t& Leonard, for J. G. McWilliams, defendant. A. W. O. Bielas, for Mrs. Murphy, plaintiff in injunction aud appellee.
   Hówell, J.

The facts presented in this case seem to be, that the wife of one Hugh Murphy sued her husband in the district court of the parish of Caddo, for separation from bed and board and for paraphernal funds which had gone into his hands. This suit was compromised by the parties in March, 1870, and the husband transferred to the wife during her life time by act in form of a donation, the usufruct, or one-half the rents and revenues of all the property, separate and common, in the parish of Caddo owned by him, and he covenanted by that act not to alienate or encumber the property. The conveyance was duly recorded and the wife dismissed her suit. Subsequently, Murphy gave two notes to Hoss the defendant in injunction, and plaintiff in the executory proceeding, and secured the payment of the notes by a mortgage on two lots in the city of Shreveport, community property between himself and wife. Hoss was proceeding to have the lots sold under Ms mortgage and Mrs. Murphy injoined.

The order of seizure and sale was taken out after the death of Murphy without notice to the widow in community, but with notice to McWilliams the executor of Hugh Murphy, deceased'.

The plaintiff in injunction sets up among other grounds, that she has an interest and ownership in the lots ordered to be seized and sold superior to the mortgage of Hoss, which she alleges is a fraud upon her rights and null; that she has a claim against the succession of her husband for rents and revenues which were under his control and administration and which were received and converted by him to his own use; that being a party in interest, she was entitled to notice in the executory proceeding which was not given. She avers nullity of the proceeding on the ground of want of jurisdiction in the district court that rendered the order of seizure, the succession being now under administration in the parish court and was so at the time the order of seizure was granted. The district judge was of the opinion that he was without jurisdiction on the ground that the case is not of that class in which an executor or an administrator refuses to pay or acknowledge a claim against a succession or resist payment of a debt against an estate, but a case in which the executor joins the creditor in the assertion of a legal, undisputed right. The judge rendered a decree perpetuating the injunction.

We think the judge erred. The grounds urged by the plaintiff in injunction do not authorize the injunction. The district court had jurisdiction to issue the executory process, and the rights asserted by the wife are not such as to injoin the sale of the husband’s property or property of the community. If she has real rights upon such property, they can be enforced upon the proceeds. If her rights are merely usufructuary, they will not be affected by the sale injoined, as it is only the naked ownership of the property that is sought to be sold.

It is therefore ordered that the judgment appealed from be reversed, and that the injunction herein be dissolved with ten per cent, on the amount injoined as damages and costs in both courts.


text:
    No. 442.
    Andrew J. Williams v. E. F. Williams.
    Where, in defense to the action, it was alleged by the advocate appointed to represent the debtor who absconded, that the property attached, although in the name of the defendant, was in reality the property of a commercial firm of which defendant was a member, and that partnership property could not bo attached;
    Hold — That it would be time enough to pass upon this defense, when made by some one having an interest to make it, to wit: one of the partners, or a creditor of the firm, if there be a partnership.
    Appeal from the Eleventh Judicial District Court, parish of Claiborne. Trimble, J.

      Ellis & Roberts, for plaintiff and appellant. J. N. Nelson, for defendant and appellee.
   Ludeling, C. J.

This is an attachment suit on notes executed by the defendant.

The advocate appointed to represent the debtor, who had absconded, for defense to the action alleged that the property attached, although in the name of the defendant, was, in reality, the property of a commercial firm, of which defendant was a member, and that partnership property could not be attached.

It will be time enough to pass upon this defense when it is made by some one having an interest to make it, to wit: by one of the partners or by a creditor of the firm, if there be a partnership.

The evidence establishes the debt sued upon, and that the debtor had absconded.

It is therefore ordered and adjudged that the judgment of the lower court be avoided, and there be judgment in favor of the plaintiff against the defendant for seven thousand and thirty-four dollars and seventy-four cents, with eight per cent, per annum interest from the seventeenth day of March, 1874, on six thousand dollars, and five per cent, per annum interest on the sum of one thousand and thirty-five dollars from judicial demand, and costs in both courts, and that the property attached be sold to satisfy the same, according to law.


text:
    No. 506.
    John L. Hargrove v. A. Flournoy, Sheriff, et al.
    The exemption of one hundred and sixty acres of land with the improvements, together with the work stock, supplies, etc., mentioned in the homestead act of 1852, shows that the intention of the law was to preserve a homestead for a farmer, in order that his family might be supported and his occupation might not be broken up. It has no application to a case like this, where there is merely a house and lot oocupied as a residence by an attorney at law.
    Appeal from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      H. 3. Hargrove, for plaintiff and appellant. A. W. O. Hieles, for defendant and appellee.
   Wyly, J.

The plaintiff borrowed from the defendant, Mrs. R. B. Ragland, $4083 20 in gold, with which to make the cash payment on the purchase of a dwelling house and lot of ground about three-quarters of a mile beyond the corporate limits of the city of Shreveport, and executed a special mortgage to secure the same. This lot of ground and house was used by the plaintiff as a place of residence, he being occupied in the practice of law at Shreveport.

The defendant, Mrs. Ragland, sued out an order of seizure and sale to collect the money thus loaned, and the plaintiff injoinéd the execution thereof, claiming the benefit of the homestead act of 1852.

The question is, is the property thus used and occupied exempted from seizure by said act1? We think not. The exemption of one hundred and sixty acres of land with the improvements, together with the work stock, supplies, etc., mentioned in the act, show that the intention of the law was to preserve a homestead for a farmer, in order that his family might be supported and his occupation might not be broken up. It has no application, to a case like this, where there is merely a house and lot occupied as a residence by an attorney at law. This point was in principle settled in the case of Crilly v. Sheriff et al., 25 An. 219.

It is therefore ordered that the judgment herein in favor of the defendants be amended so as to allow ten per cent, general damages for suing out the injunction, and as thus amended let it be affirmed, appellant paying costs of appeal.

Rehearing refused.


author: Wyi.y, J.

text:
    No. 463.
    Mollie E. Livingston v. D. C. Morgan.
    The evidence in this case shows that the plantation which is the object of this suit was purcliased in Ms name, for tb© benefit of plaintiff, by defendant, who was the agent and attorney at law of plaintiff’s mother and tutrix, then absent from the State, and that he expected the plaintiff to have sufficient funds out of the succession of her grandfather to pay the note given by him for the price at the maturity thereof.
    The question is: Having failed to collect for the minor funds sufficient to pay said note at maturity, was defendant justified in refusing to transfer the title to plaintiff, when she returned to the State, was emancipated by the court, and tendered to him the note which he had executed for the land, and §500, the cash he had paid on that note, with interest on said payment ?
    Held — That, under such circumstances, he was not justified in refusing to transfer the title to the plaintiff.
    Whether the defendant had, or had not, special authority from the court to buy the land for the minor is immaterial. He did buy for her, he agreed to convey it to her when necessary, and this proposition had not been withdrawn when she accepted it and made the tender.
    As the defendant has enjoyed the use of this land for a long time, he is not entitled to interest on the amount of the price paid by him, nor is plaintiff bound to refund the amount of the taxes paid by defendant.
    The court a qua erred in not allowing the reconventional demand of the defendant for professional services and for money advanced to the natural tutrix of plaintiff for her benefit.
    Appeal from the Fourteenth Judicial District Court, parish of Morehouse. Bay, J.

      Hew ton & Hall, for plaintiff and appellant. I). 0. Morgan, in propria persona, appellee.
   Wyi.y, J.

Ti.e plaintiff, an emancipated minor and sole heir of R. D. Livingston, sues the defendant to compel him to transfer to her a certain plantation which he bought at the succession sale of her father on the second December, 1867, on twelve months’ credit for $1551, on the ground that said Morgan was the general agent and attorney at law of her mother, her natural tutrix, then absent from the State, and that he bought said land for the benefit of plaintiff, taking the title in his own name with the understanding that lie would transfer it to plaintiff when necessary, she making good to him the price given for the land. The court gave judgment rejecting plaintiff’s demand and she has appealed. It will be necessary to examine the evidence.

G-. M. Croxtan testifies : I am administrator of the estate of R. D. Livingston, deceased, and Mrs. S. C. Livingston is coadministrator. I applied for and obtained an order for the sale of the land belonging to the estate of R. D. Livingston, .deceased. D. C. Morgan became the purchaser of the land at the sale, and it was my understanding that it was for the benefit of Mollie E. Livingston. I understood so from •Captain Morgan. I told parties that it was to be bought for Mollie E. Livingston. That was the understanding between me and Captain Morgan. That is, if the land did not sell for enough to pay the debts; if it did, he was to let it go. The debts were between $2500 and $3000. ■I have been on the place frequently; $500 would be fair average rent for the place; it is good gum land, and a fair average yield is about a bale of cotton and twenty-five or thirty, bushels of corn per acre.”

D. C. Morgan, the defendant, testifies: “That in the month of March, 1866, I agreed to act as agent for S. €. Livingston, tutrix for the minor child Mollie E. Livingstou, during their absence to the State of Alabama. I went with them to the city of New Orleans, and my last instructions from her was to avoid the sale of the land belonging to the succession of her husband, R. D. Livingston, the land'here in controversy. In 1867 the creditors of the succession of R. D. Livingston became clamorous for their money, and the land being the only property belonging to the succession the administrator was forced to get an order for its sale, and the property was advertised for sale. These facts were communicated by me to the tutrix by letter. I addressed, two or three times, letters containing the facts to her in Alabama. I stated I would buy the land if it did not sell for cash and if sold on a credit; and if her ward, Mollie E. Livingston, had funds to pay for the same at the time of the maturity of the obligation, and if she would take the necessary steps to take the title, that I would make a transfer of the title to her. This proposition I made once or twice before the sale and on two or three occasions subsequent, and once a short time previous to the maturity ot the obligation for the purchase price. I informed the tutrix that the note would soon mature and if she wanted to avail herself of my proposition she must be ready to meet it; that if I had the debt to pay I would certainly want to retain the title to the land. These propositions were all made through the •mail1 as above stated. I think I received a reply to some of those letters. I received no instructions to pay the note, for the very reason there were no funds available for the same that I knew of. I received no instructions to take any legal steps to transfer said title, by advice •of a family meeting or otherwise. The purchase, on my nart, of the land in controversy and the proposition to transfer it to the minor, was not as agent of the minor, but as a friend of the minor. I had no authority .to act as agent to make said purchase. That at the time of said purchase, nor at the time of the maturity of the obligation of the purchase price, nor before nor since, has the plaintiff ever had in my hands one dollar belonging to her or the tutorship. At the close of the year 1869, or the first of 1870, 1 was indebted for the rent of land to the succession of Aaron Livitagston something over three hundred dollars, which, by an agreement of the administrator of the estate, I held and retained in my hands, for the benefit of the tutorship j but as the tutorship owed me then a large amount of money in excess of these rents I considered this amount compensated,” etc.

On cross-examination this witness states: “I expected to have funds in my hands from her grandfather’s succession, sufficient to pay the note given for the place in controversy. I have never paid all the note given for the land ; only paid in cash the amount indorsed on the back of it ($500).”

Prom the foregoing it appears that the defendant bought the land for the benefit of the plaintiff, expecting to collect funds as the attorney of plaintiff’s tutrjx from the succession of her grandfather, sufficient to pay the note given for the place in controversy,” he having all the business of the tutorship in his hands. And this conclusion is confirmed by the following written admissions of the defendant, which are in the record:

“Defendant admits that on or about the second day of December, A. D. 1867, he wrote a letter to the plaintiff, she being at the time in the State of Alabama, in which he informed her that the land in controversy in this suit, and which then belonged to the estate of her father, R. D. Livingston, deceased, had been sold on that day (second December, 1867), on a credit of twelve months for fifteen hundred and fifty-one dollars, and that he would take the title in his own name and can transfer the same to her (plaintiff) when necessary.

“ D. C. MORGAN.”

The letter, of which the above admissions contain the substance, written on the day of the sale, addressed to the plaintiff, then a minor child at school in the State of Alabama, taken in connection with the testimony of Croxton, the administrator who procured the order of sale, and also the statement of Morgan, the defendant, on eross-emamination, show beyond doubt that the land was purchased by Morgan for the benefit of plaintiff. He expected the plaintiff to have sufficient ■funds out of the succession of her grandfather to pay the note, given by him for the price at the maturity thereof.

•' Now the question is, having failed to collect for the minor funds suffieient to pay the note at maturity, was Morgan justified in refusing to transfer the title to the plaintiff in September, 1870, when she returned from Alabama, was emancipated by the court, and tendered to him the note which he had executed for the land and $500, the cash he had paid on that note, with $60, the interest on said payment? We are of the opinion that he was not justified under the circumstances in refusing to transfer the title to the plaintiff. In the position which the defendant occupied towards the plaintiff and her mother, the law exacted from him the utmost good faith. He had been put in charge of all their business, and they were absent from the State. In his letter to the minor on the day of the sale, according to his written admissions in the record, he informed her that her father’s place had that day been sold on a credit of twelve months for $1551; “ that he had taken the title in his own name and could transfer the same to her when necessary.” In this letter there was no condition stipulated upon the happening of which he designed keeping the land. He acknowledged that the purchase was for the plaintiff, and virtually promised to convey it to her when necessary, that is when required.

Whether he had special authority from the court to buy the land for the minor or not is immaterial. He did buy for her and agreed to convey it to her when necessary. Until the minor was emancipated in 1870, she could not, independently of her mother, have availed herself of the proposition made by the defendant. It had not been withdrawn when she accepted it and made the tender. Up to that time defendant seems to have had charge of all her business. He has only paid five hundred dollars on the price. If the creditors were clamorous for their money, as he says, and therefore forced the sale of the land upon him, the attorney of the plaintiff and her mother, they certainly have not displayed much zeal in collecting from him the price; for he still holds two-thirds of the price, and has enjoyed the use of the plantation since December, 1867, and the value of the rent is proved to be $500 per annum. If the defendant acted as a friend, as he says, in buying in the property for the plaintiff, like a friend and faithful attorney he should have cheerfully transferred it to her when tendered the price, because he had then enjoyed the use of the property for several years, the rent of which up to that time was doubtless worth as much as the price at which the property had been adjudicated to him. The fact that the defendant was able to buy in that valuable plantation at the paltry sum of $1551, and that he has been permitted for so many years to retain in his hands the greater part of the price, in the midst of clamorous creditors, makes it highly probable that the defendant gained this great bargain and this long indulgence in paying the price, by reason of the understanding at the sale and with the administrator that the purchase was for Mollie E. Livingston, the minor daughter of the deceased. Competition would hardly be so great at a probate sale, where it was reported that a minor child, through a friend, was bidding and was seeking to buy in the home of her father.

The defendant, the attorney of the plaintiff, had no right to use the position he' occupied by reason of his employment for his own advantage and to the prejudice of his client, for whom he bought the land, taking the title in his own name and agreeing to transfer it to her “when necessary,” that is when required. In law and in equity the defendant is bound to transfer the title to the plaintiff. 4 M. 409 ; 14 An. 632.

As the defendant has enjoyed the use of the land he is not entitled to interest on the amount of. the price paid by him, nor is plaintiff bound to refund the amount of the taxes paid by the defendant. The court erred in not allowing the reconventional demand of the defendant and settling at once the controversy between the parties. The demand is for professional services and for money advanced to the natural tutrix of plaintiff for her benefit, amounting in the aggregate to $2485 75, and it is established by the evidence in the record. Included in this is a note for one hundred dollars in gold, given by plaintiff’s tutrix on the eighth March, 1866. From this reeonveqtional demand must be deducted $450, the amount collected for rent of the Aaron Livingston place, and from Wright, by the defendant for plaintiff.

It is therefore ordered that there be judgment in favor of plaintiff requiring the defendant to transfer the title of the land in controversy in this case to her on tendering to him the note executed for the price, together with the sum paid by him on said note, or on tendering the whole price, if the defendant has paid it. It is farther ordered that there be judgment in favor of the defendant against the plaintiff for one hundred dollars in gold, with eight per cent, interest from March 8, 1866; also for the further sum of nineteen hundred and thirty-five dollars and seventy-five cents, with five per cent, interest on twelve hundred aud thirty-five dollars and seventy-five cents thereof .from eighteenth October, 1870; and with eight per cent, interest on seven hundred dollars thereof from the eighth day of March, 1866. It is further ordered that the appellee pay costs of appeal; that defendant pay costs of the principal demand in the lower court, and plaintiff pay costs of the reconventional demand.