author: Breaux, J. Blanchard, J.,

text:
    No. 13,518.
    H. P. Nicholas vs. Clara Maddox
    Syllabus.
    1. In an action based on the abandonment of the -wife, a decree of separation from bed and board must precede the application for a divorce. 16 La., 26.
    2. Pretermitting this ground the court holds that while it is true that a wife’s refusal to follow her husband to a new abode is an abandonment, this is subordinate to another rule of law under which it has been repeatedly held that a marriage contracted in another State is not to be dissolved on grounds antedating the domicile in Louisiana. The wife never having been domiciled here, the question is one of jurisdiction. It has always been held that a husband or wife who acquires a domicile in this State can not maintain an action here against the absent spouse who never acquired a domicile in this State. 0 Ann., 317; 13 Ann., 1; 40 Ann., 28 ; 40 Ann., 457.
    APPEAL from the Twelfth Judicial District, Parish of Calcasieu— Bead, J.

      Paul A. Sompayrac for Plaintiff, Appellant.

      B. P. Williams for Defendant, Appellee.
   The opinion of the court was delivered by.

Breaux, J.

After the appeal had been dismissed in this ease in suit bearing same title, 52 Ann. 496, the judge of the district court rendered a judgment sustaining an exception of no cause of action, filed by the curator ad hoc appointed by the court to represent the defendant, who is as plaintiff (her husband) alleges, in Benton Harbor, Michigan, where he avers she now resides, and at which place plaintiff and defendant were united in marriage in 1888. In our statement of the case in the 52nd Annual, cited supra, we recited the facts upon which plaintiff relies to obtain a divorce from his said wife.

Abandonment is the only ground upon which plaintiff bases his action. The last time he met his wife, he avers, was in another State, in 1897, and he has constantly urged her to- return to the matrimonial domicile in this State. In his petition, he asks that his wife be duly served with a copy of his petition and citation, and with a copy “of the notice to her, to return to the matrimonial domicile, to be served each month for three successive months, and that after the delays”, judgment be rendered granting him a divorce.

The plaintiff who prays for a divorce and not for a separation from bed and board, in any event, would not be entitled to a divorce a vinculo in an action brought on the ground of abandonment. The judgment of divorce would have to be preceded by a judgment of separation from bed and board. Harman vs. McLeland, 16 La. 26.

The contention is urged, on the part of plaintiff, that the decisions cited against him by the curator ad hoc are contrary to Article 120 C. 0., and plaintiff cites Gahn vs. Darbey, 36 Ann. 70, in which it was decided that the wife’s refusal to follow her husband to a new abode is an abandonment. We can only say, in answer, neither the decision cited by plaintiff, nor the article of the Code, can be considered as controlling, when, as in this case, the wife has never been within the court’s jurisdiction. It has always been held by the courts of this State that a husband can not leave the matrimonial domicile in another State and come here and obtain a dissolution of the marriage on grounds arising when he was not a resident of the State. The question has always been considered as jurisdictional, rendering- it legally impossible to sever the marriage ties without proper notification and bringing the one sued within the court’s jurisdiction.

It must be borne in mind that the asserted abandonment by the defendant of the matrimonial domicile was not from a domicile established by the husband with the wife, after the former came to reside here. The marriage in Michigan was legal and binding. It can not bo dissolved by the court of the domicile in this Stat&.f or abandonment prior to the change of residence from Michigan to this State.

“A marriage contracted in another State is not dissoluble on grounds antedating the domicile in Louisiana.” This has been repeatedly decided. Edwards vs. Green, 9 Ann., 317; Muller vs. Hilton, 13 Ann., 1; Champon vs. Champon, 40 Ann., 28; Larquie vs. His Wife, 40 Ann., 457.

Legislation looks to the permanence of marriage. It is to the best interest of society that it should be made permanent as far as possible. Marriage would, in many instances, cease to be characterized by permanence ; indeed, frequently the marriage state would be unsettled, if one of the parties could leave -the matrimonial domicile, and at his new home in a different State, obtain a divorce on grounds such as here alleged as having arisen in another State. This would leave one of the contracting parties free, at times, to dissolve a marriage not contradictorily with the other contracting party. It would give rise to confusion; for the authorities in the State in which the marriage was contracted, might refuse to recognize the validity of the judgment attempting to dissolve the ties. It might give rise to two families; one at the first domicile, and the other at the new domicile of the husband, should he avail himself of the right to marry again, as he is authorized to do after a divorce has been pronounced. The position of society would be seriously injured if such conditions were to arise.

We have seen that this court has refused to give its sanction to such petitions as here presented, and we must adhere to the ruling.

The judgment appealed from is therefore affirmed.

Blanchard, J.,

concurs in the decree affirming the judgment appealed from, which sustained an exception of no cause of action.


source: Caselaw Access Project

author: Watkins, J. Nicholls, O. J.

license: Public Domain

text:
    No. 13,411.
    Succession of Aristide Negueloua.
    Syllabus.
    In case a single piece of real estate is the only asset of a succession, and it is burthened with a vendor’s lien and mortgage, the administratrix will be entitled to charge the fees of her attorney and pay same from the proceeds of sale, in case no executory proceedings have been commenced in the foreclosure of the mortgage of the vendor.

      APPEAL from the Civil District Court, Parish of Orleans — Si. Paul, J.

      Benjamin Ory for Administratrix, Appellant.

      Edmund J. Murphy for Mrs. Louise Michel, Opponent, Appellee.
    On rehearing by Nicholls, O. J.
   The opinion of the court was delivered by

Watkins, J.

The controversy in this case arises over an opposition to the account of the administratrix in the succession of the deceased, the surviving widow having' administered the estate of her husband. On the face of the account it appears that the sole asset of the succession was a piece of improved real estate in this city, bearing' the municipal number 1352 Oamp street, between Melpomene and Terpsichore; and tho same was sold at auction under an order of court made in the succession, on June 21, 1899, and that the sale realized in proceeds the sum of $2300.

Tho accountant proposed to distribute the proceeds as follows:

(1) In payment of debts first in rank, such as taxes, funeral expenses, costs of court, etc.

(2) Those in the second rank, costs of sale.

(3) The amount due Henry Dours as holder of a note dated June 26th, 1895, for one thousand dollars, and interest to July, 1899, bearing a vendor’s lien on the property sold, aggregating the sum of. .$1969 66

(4) Balance due Mrs. Louise M. Michel as the holder of another note, same amount and date, with interest and vendor’s lien and mortgage ...............................................$80 00

(5) Amount due to the surviving widow for monies received from her by her husband and duly acknowledged by authentic act, and duly recorded as a mortgage, amounting to the sum of...........$1000 00

Deducting from the total proceeds of sale...............$2300 00

debts bearing first privilege.......................$483 33

and debts bearing second privilege................. 162 13 — 645 46

The balance is' $1654 54

On this statement there is an insufficiency of proceeds to pay tho debts third in rank, that is to say, the vendor’s note held by Henry Dours, in the sum of $315.12; and there is nothing left to be applied to the mortgage note held by Mrs. Michel nor to the surviving widow on her legal mortgage. Upon the account there is an allowance of $150 provided as fees of the attorney of the administratrix of the estate; and this item is given a place among those debts bearing a first privilege.

It thus appears that this sum of $150 attorney’s fees being first deducted, had the effect of diminishing the share coming to Henry Dours as creditor with vendor’s lien on the property sold; and if same are applied to the latter, he would be enabled to recoup the greater part of the deficiency on his claim.

On this state of facts, Mrs. Louise Michel, holding a claim in the fourth rank, filed an opposition, alleging that the administratrix was without right to charge the succession with attorney’s fees, and deduct same from the proceeds of sale, because she, as the holder of a note with vendor’s lien and mortgage upon the property sold, was entitled to be paid by preference over said attorney, and that the administratrix had no right to thus absorb the proceeds of sale to her prejudice, and that the attorney of the administratrix wjas not entitled to receive the same.

For the purpose of diminishing the costs of a large transcript, the parties litigant made and eñteréd into, the following agreement and admissions :

“First. — It is admitted that Benjamin Ory was the attorney employed by the administratrix to open this succession, and that he acted as such attorney up to and including the legal proceedings for the homologation of the account filed herein.
“Second. — It is admitted that the mortgage note held by Mrs. Louise Michel could not have been foreclosed without the appointment of a legal representative to and for the succession of Aristide Negueloua.
“Third. — It is admitted that the service rendered by Benjamin Ory, as attorney, as charged by him, are reasonable.
“Fourth. — It is agreed between counsel that these admissions and the present agreement shall stand in lieu of the original proceedings in the matter of the succession of Aristide Negueloua, with the exception of the account, the note of evidence taken thereon, and the judgment of the court homologating said account.
“Fifth. — It is further admitted that the only assets of this estate, and inventoried herein, is the piece of real estate sold, the proceeds whereof were credited on the account.”

On these issues, the case went to trial, and there was a judgment which sustained the opposition to the extent of striking from the account the item of funeral expenses due Thomas Doyle, undertaker, $92.00, and that of Benjamin Ory, $150 for attorney’s fees; or, in other words, that same “be stricken from the list of privileges to be paid first in rank, and placed on the list of privileges to be paid fourth in rank out of the balance of the estate, and after payment of the note of $1080 placed on the said account to the credit of Mrs. Louise M. Michel, opponent herein.” The account was, in other respects, approved.

■ As thus reformed by the judgment of the district court, the account would stand thus:

Deficit on debt of Henry Dours...........................$315 12

Less deductions in judgment in claim of first and second rank. 202 00

Balance of deficit.................................$13 12

It appears from this statement that there is nothing applicable to the claim of the opponent, Mrs. Michel; and in any view of the .matter, she is without interest.

But the appeal from the judgment of the lower court was taken by Benjamin Ory, attorney for the administratrix, and he is entitled to a hearing in this court upon the legal question involved with regard to the priority in rank of the vendor’s lien of Dours over his claim for attorney’s fees, notwithstanding the appellee has filed no answer to the appeal and made no appearance in this court by either counsel or brief.

It is to be observed at the outstart, that there was no opposition to an administration of the estate made by either of the mortgage creditors, and neither of them inaugurated executory proceedings for the foreclosure of the vendor’s mortgage. An administration having been commenced, an account filed, and an order for the sale of the property made to pay debts, all the subsequent proceedings were regular and formal, and tire claims of the mortgage creditors were placed upon the account filed by the administratrix; and, the contestation raised being for the distribution of the proceeds of sale, all parties have acquiesced in the sale as made.

Hence, there is but a single question involved, and that is the rank of a vendor’s lien and mortgage; and whether attorney’s fees for the opening of the succession in these circumstances, can be taxed against the proceeds as ranking the claim of the vendor thereon.

The following provisions of the Code are applicable to this case:

“The privileges which extend alike to movables and immovables are the following:
“1. Funeral charges.
“2. Judicial charges.
“3. Expense of last illness.
“4. The wages of servants.
“5. The salaries of secretaries, clerks and other agents of that kind.”

R. C. C. 3252.

Then follows the privilege of the widow and minor children of the deceased, who are left in necessitous circumstances; and the following provisions occur, which are pertinent to this case:

“When for want of movables, the creditors who have a privilege according to the preceding article, demand to be paid out of the proceeds of the immovables of the debtor, the payments must be made in the order laid down in the following chapter.” R. C. C. 3253.

In the following chapter, we find the following authority for the payment of creditors who have a privilege according to the preceding article, to-wit:

“Funeral charges are the first paid.
“Law charges, the second.
“Expenses of the last illness, the third.
“The wages of servants, the fourth.
“Supplies of provisions, the fifth.
“The salaries of clerks, secretaries and others of that nature, the sixth.
“And, finally, the wife’s dower, the seventh.
“The one thousand dollars secured by law to the widow or minor children, as set forth in Article 3252, shall be paid in preference to all other debts, except those for the vendor’s privileges and expenses incurred in selling the property.” R. C. C. 3254.

In this case, the widow has made no claim, and if made, her claim would not be good, as under the express provisions of the article last cited, it would be overborne by the vendor’s privilege, and the expenses incurred in selling the property. And the contention of counsel for the mortgage creditor is, that the vendor’s privilege not only primes that of the widow, but, also, all “other debts” listed in that article; and the contention of counsel for the administratrix is, that as the mortgage creditor had not undertaken any proceedings for the sale of the property, and as there was no one in esse capable of being served with process', thus rendering an administration necessary, that attorney’s fees must be considered as a necessary part of the expense incurred in selling the property.

A further imovision of the Code is, that if the movables of the succession are, for any reason, “not sufficient to discharge the debts having a privilege on the whole movable property, the balance must be raised on the immovables of the debtor, as hereafter provided.” R. C. C. 3266.

“With the exception of special privileges, which exist on immovables in favor of the vendor, of workmen and furnishers of materials, as declared .above, the debts privileged on the movables and immovables generally, ought to be paid, if the movables are insufficient, out of the product of the immovables belonging to the debtor, in preference to all other privileged and mortgage creditors, etc.” R. C. C. 3269.

The sense of that article is, that debts bearing a privilege upon movables and immovables, generally, must be paid from the product of the immovables in ease the movables are insufficient to discharge the same, in preference to all privileged or mortgaged creditors, except the vendor; and that is equivalent to recognizing the first privilege of such creditor in a case like this where there are no movables.

But the provisions of this article are in exact keeping with those of Article 3284; and in each case the right of creditors having a privilege upon both movables and immovables are subjected to ‘the prior claim of the vendor — the only exception being the expenses incurred in selling tlie property.

From the foregoing, the contention is, that the result must be that the vendor’s lien and mortgage prime all the debts of the succession in the order of payment, and all claims of every kind and character, except the “expenses incurred in selling the property”; and this contention is founded upon the terms of the Code, to the effect, that the claim of the necessitous widow is to be paid in preference to all other debts— those of the succession as well as those of the deceased — “except those for the vendor’s privilege and expenses incurred in selling the property.”

While that phrase is not altogether clear in the statement that the vendor’s privilege primes all other debts, yet the inference is that it does, because it primes that of the widow, and her claim primes all others; and to hold differently, would be to render tho article illogical and inconsistent in itself.

But the further provisioii is:

“With the exception of special privileges which exist on immovables in favor of the vendor * * * the debts privileged on movables and immovables, generally, ought to be paid * * * out of the product of the immovables belonging to the debtor in preference to all other privileged and mortgage creditors.”

These two articles, when construed together, clearly prove that the vendor is entitled to preference over all creditors of the deceased and of the succession, except the expenses incurred in selling the property.

This ease is quite singular in its circumstances and sui generis.

There was no objection urged to the probate sale on the part of the creditor holding a special mortgage and vendor’s lien on the property sold; and it was the only asset of the succession. Either of the.two creditors holding mortgages could have resorted to executory proceedings in the foreclosure of the same, but preferred not to do so. As neither of them took occasion to resort to legal proceedings, none can be considered as necessary, and no charge of attorney’s fees for collecting the mortgage debt can be deemed exigible.

As matters stood, these mortgage creditors would have been put to the expense and trouble of opening the succession of the deceased mortgagor in order to obtain a'seizure and sale.

Unquestionably, the administratrix is entitled, under the law and jurisprudence, to charge a reasonable sum for the fees of the attorney necessarily incurred in the administration of the estate; and nothing appears from the account to show that any claim is made for tho fees of the attorney of the mortgage creditor.

Therefore, we are dispensed from the consideration of the question of the property being taxed twice for the payment of attorney’s fees— those of the mortgage creditor, and those of the administratrix.

Under these circumstances, we are of opinion that the judgment appealed from is erroneous, and should be reversed.

It is, therefore, ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the allowance of $150 for attorney’s fees be reinstated on the account filed with its original rank and privilege, and that as thus altered, the same be homologated and approved, and that all costs be taxed against the succession.

On Application por Rehearing.

Nicholls, O. J.

Counsel for Mrs. Louise Michel, holder of one of the promissory notes secured by vendor’s privilege, has in an application for a rehearing called our attention to an error in the statement of the facts of the case, made by us in placing the amount due to Henry Dours as holder of the other promissory note secured by vendor’s privilege, at nineteen hundred and sixty-nine dollars and sixty-six cents, it being in reality only thirteen hundred and twenty dollars, as appears by the account of the administratrix.

He says that the declaration made in the opinion that Mrs. Michel has no interest in the result of this apxieal is an error.

Counsel is correct in saying that there is an error in the statement, the error having arisen from taking from the account as the amount of Dours’ claim what is set down ds “the aggregate amount of xorivilege debts to be paid first, second and third in rank, and to be paid in full.” Dours’ claim is placed on the account at thirteen hundred and twenty dollars, as stated by counsel.

This error of statement is an immaterial one so far as the result of the litigation would affect the rights of Mrs. Michel, as those would be determined by our decree and not by a mere incidental remark.

We adhere to’ the opinion which we have rendered as to the rights of the appellant. He is the only appellant before this court. Our first decree should, however, be altered somewhat.

This court should, and it does hereby annul and reverse the judgment of the district court in so far as it maintained the oxiposition of Mrs. Louise Michel to the claim privilege and rank privilege or preference of Benjamin Ory, attorney for the estate, of one hundred and fifty dollars, and struck the same from the list of privileges to be paid first in rank and xffaced it in the list of privileges to be paid fourth in rank out of the balance of the estate and after payment of the note of one thousand and eighty dollars placed on said account of Mrs. Louise IE Michel, the opponent herein, and it should and it does adjudge and decree that the allowance of one hundred and fifty dollars for attorney’s fees be reinstated on the account filed with its original rank and privilege.

It further adjudges and decrees that except as so altered by the present decree the judgment of the district court appealed from be and it is hereby affirmed and that all costs be taxed against the succession.

A rehearing is unnecessary and the application for the same is refused.


author: Breaux, J.

text:
    No. 13,515.
    State of Louisiana ex rel. Jean Peyret vs. The Judges of the Court of Appeals for the Parish of St. John the Baptist.
    Syllabus.
    Where a plaintiff alleges that the land he claims is worth more than one hundred dollars, and the defendant, while swearing that it is worth less than that amount, makes a claim for damages arising, if an injunction against him be dissolved, (and the land he claims can not be recovered by him without his recovering the improvements,) the court holds that the questions involved bring the case within the jurisdiction of the Court of Appeals, and that the party cast has the right to an appeal from the judgment of the District Court to the Court of Appeals as the amount involved is more than one hundred dollars.
    Q N APPLICATION for Writs of Certiorari and Mandamus,

      L. DePoorter for Relator.

      J. L. Caudet for Respondent Judges.
   Tlie opinion of the court was delivered by

Breaux, J.

Peyret, the defendant in the case of Leon Godchaux vs. Jean Peyret, and relator here, makes application to this court to reverse the order of the Court of Appeals dismissing his, Peyret’s, appeal for want of jurisdiction.

The facts are, that the plaintiff in said ease, Godchaux, sued in the District Court for a judgment decreeing him to be the owner of the land described in his petition, which he alleges is worth three hundred and fifty dollars. This petition was not sworn to. He afterwards filed a supplemental petition, praying for an injunction prohibiting the defendant, Peyret, from deadening or causing to be deadened, any of the trees on the land. No allegation of value was made to this petition for an injunction. The petition is sustained by the oath required for an injunction. The defendant moved to dismiss the injunction on various grounds, and prayed for damages in the sum of fifty dollars for attorney’s fee. The answer of Peyret to the petition of Godchaux was a general denial.

The judgment of the District Court was in favor of Godchaux, recognizing his title to the land in controversy, and making the injunction absolute. On appeal to the Court of Appeals from the judgment of the District Court, that court decided that the amount in dispute was less than one hundred dollars, and, therefore, as construed by it, the case was not appealable. The court said, in the opinion dismissing the appeal, that plaintiff’s petition contained the allegation that the property in dispute is worth $350.00, and that, on the other hand, it appears from the testimony of Peyret, defendant, that the property in dispute is worth fifty dollars, and that there is documentary proof showing that the defendant, Peyret, bought the same property for $40.00; that it is not the allegation or prayer of the petition as to the value of the thing in dispute that vests jurisdiction, but that it is the true value of the property as it appears of record.

We agree with that part of the opinion of the Court of Appeal ^ expressing the view that the test of jurisdiction is the value of the property involved in the litigation, and yet we have .not found it legally possible to agree in the conclusion at which the court arrived. For, taking the foregoing as controlling, in matter of jurisdiction, wd find that the issues involve a value at least an infinitesimal amount larger than one hundred dollars which is required to give the right tct an appeal from the District Court to the Court of Appeals.

We have noticed that the plaintiff, Godchaux, alleges that the land in controversy is worth three hundred and fifty dollars. He, at any rate, is bound by his allegations as to value. On the other hand, it is true, that the defendant, Peyret, swore that the land is worth about fifty dollars. He, in addition, apparently in good faith, claimed damages in his motion to dissolve the injunction as before stated, making a total of one hundred dollars. Furthermore, while testifying, this defendant swore that he expended thirty dollars to circle and deaden trees on this land. This, from his point of view, must have added that much to the value of the land. At another time, while testifying, he said that his improvements were worth fifteen hundred dollars, and that he would not give them up for less than that sum; but whether he refers to the land, or the improvements, is not clearly expressed. In either case, it adds value enough to the land to render the case appealable. The improvements are, as we take it, inseparable from the land, at least to an amount sufficient to make up more than the one hundred dollars in question.

In that view, should Peyret gain his case, he will necessarily be recognized as owner of property worth more than that sum. In the nature of things, the decree must embrace' property, the value which is unquestionably more than the minimum limit of jurisdiction of the Oourt of Appeals.

In his answer, he, Peyret, prays to be recognized as owner of the improvements, as well as of the land; and, in granting his prayer, it follows that he would be recognized the owner of both the land and the improvements thereon. In view of the facts, we think that the value of the property is within the jurisdiction of the Court of Appeals, and for that reason the order heretofore granted by our worthy brothers of the Oourt of'Appeals, dismissing the appeal for want of jurisdiction (presenting the only issue here) should be rescinded, and the case reinstated, and proceeded with according to law.

In passing upon the question of value, we have considered the issues from the point of view, exclusively, of jurisdiction. No expression .of ours was intended, nor should be considered as trenching upon the rights of the parties.

Of course, in our view, the allegation of plaintiff’s petition as to the value of the property involved, is not to be entirely ignored, but to be given effect to, when, as to his case, it is sustained by the evidence. We find precedent for granting the writ in State ex rel. Beauvais vs. Judge, 48 Ann., 672, and decisions therein cited.

It is, therefore, ordered, adjudged and decreed that the order nisi heretofore issued by us directing the Oourt of Appeals to show cause why the writ of mandamus applied for should not issue, is hereby made absolute; and the Court of Appeals is to set aside its order dismissing the appeal, reinstate the appeal, and proceed with the case in compliance with the requirements of law in such cases.

The costs are to await the final termination of the suit, and are to be charged to the one cast in the suit.


author: Watkins, J.

text:
    No. 13,365.
    Edward W. Burbank vs. Board of Assessors et al.
    Syllabus.
    The plaintiff as lessee of the city of New Orleans, having contracted to build upon two vacaut and unimproved lots of ground, certain specified buildings thereon, as a part of the consideration of the lease, in addition to money-rent, the buildings to revert to the lessee on the termination of the lease at the expiration of twenty years, said buildings and improvements are subject to taxation in the meantime^
    APPEAL from the Civil District Court, Parish of Orleans — King, J.

      Bice & Montgomery for Plaintiff, Appellee.

      Samuel L. Gilmore, City Attorney, and Walter B. Sommerville, Assistant City Attorney, for Defendants, Appellants.

      Brands O. Zacharie for Board of Assessors and State Tax Collector, Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

In 1885 the city of New Orleans, being- the owner of two certain vacant or unimproved lots of ground, made a lease of same to one Michael Blackett, for a term of twenty years — -the term of lease expiring- on the 30th of September, 1905.

The money rental stipulated was $240, payable annually, in advance, and the following additional consideration is then stipulated, viz:

“Said Michael Iiackett, lessee,-hereby agrees and binds himself to “ cause to be constructed on each of said lots, suitable frame buildings adapted to business purposes and maintain samé in good condition “ during the continuance of this lease, the whole at his own costs and “ expense, and at the expiration thereof, said lots of ground, together “ with all such buildings and other improvements thereon, shall revert “ to the city of New Orleans, without any cost, charge or expense “ whatever. All such buildings to be¡ constructed under the supervision “ and to the entire satisfaction of the Commissioner of Public Build- “ ings and City Surveyor of the city of New Orleans; said lessee also “ agrees to construct and maintain, during the continuance of this “ lease, around said vaciant spaces, between said lots and the market, a “ neat fence.”

The buildings and improvements contemplated by the contract were erected upon the lots, and, thereafter, Iiackett sold all of his right, title and interest in this lease to the plaintiff, and the buildings and improvements were assessed for taxes for the years 1897, 1898 and 1899.

It is this assessment that the plaintiff seeks to annul, on the ground that same are exempt from taxation, on the ground that he is not the owner of the improvements on which the same are made. ITis position is, that they are the property of the city, and have always been; that they are rent, or stand in lieu of rent as a part of the consideration of the lease.

On the other hand, the contention of the city attorney is, that the building and improvements are the property of the plaintiff, and under the plain terms of the contract, said buildings and improvements will continue to remain his property until the expiration of the term of the lease, when they “shall revert to the city of New Orleans”, and that, in the meantime, they are taxable.

In City vs. Sugar Shed Company, 35 Ann., 548, a similar question was so decided; and that ruling was supported by the two previous decisions in Sugar Shed Company vs. Harris, 26 Ann., 378, and City vs. Russ, 27 Ann., 413.

See, also, Lee vs. City, 28 Ann., 426.

In the district court, there was a judgment in favor of the plaintiff, annulling the assessments complained of, and the city appealed therefrom.

We are of opinion that the judgment is erroneous, and must be reversed.

It is, therefore, ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the assessments be reinstated and maintained at the cost of the plaintiff and appellee in both courts.

Rehearing refused.


author: Watkins, J. Nicholls, O. J. Breaux, J.

text:
    No. 13,319.
    Paul Chapman vs. The First African Baptist Church.
    Syllabus.
    A contractor having engaged to construct a church edifice for a religious corporation, and to furnish the necessary materials therefor, is without right to demand of the latter an alleged balance due, after the property has been conveyed to a loan and building company with his consent, and it has been again reconveyed to the church organization — said arrangement having been rendered necessary through the mutual fault of the church corporation and the contractor, and their rights and obligations having been adjusted by a compromise.
    On Application pop Rehearing.
    When there is no room to sustain the plea of res judicata> a right to sue is reserved as to claims, if one may have any against others than the defendants in so far as not covered by the prior decree.
    APPEAL from the Civil District Court, Parish of Orleans. — ■ Ellis, J.

      Albert Voorhies for Plaintiff, Appellant.

      Dart & Kernan for Defendant, Appellee.
   The opinion of the court was delivered by

Watkins, J.

Petitioner demands of the First African Baptist Church, a religious corporation, the sum of $6,614.00, as the balance due him on the contract price of $9,200.00 for the erection and construction of a church edifice on its property, situated in square No. 361, bounded by Howard, Cypress, Julia and Ereret streets, measuring 92 feet front on Howard street and 80 feet in the rear, by 125 feet in depth.

He alleges that he made a written contract with the defendant on the 15th of October, 1889, for the performance of the work, in which all the details of the agreement are set forth; and that payments were to be made for workmanship and the materials to be furnished in the manner following, viz:

(1) The first payment was to he made when the old church building was taken down and foundations for a new one were laid, $1,028.57.

(2) The second payment was to he made when the frame of the first story of the new building was erected, $1,028.57.

(3) The third payment was to be made when the framing and sheeting were completed, $1,028.57.

(4) The fourth, fifth, sixth and seventh payments were to be made at the intervals stated in the contract.

He alleges that he faithfully performed his part of the contract, and for the purpose of fulfilling the same, expended $5,800.00 in work, expenses and materials furnished; and that the defendant made default in the payment of the third instalment due under the contract.

That it refused to permit him to proceed with the work and employed another contractor; and that it illegally combined with the Mutual Loan and Building Company to defeat his rights, while benefitting themselves with the labor and materials he had furnished and expended.

The petition attempts an explanation of a former suit he instituted on the demand now made in the suit entitled Paul Chapman vs. The Old African Baptist Church, No. 31,066 of the Civil District Court, which was filed on the 4th of October, 1890, in which he obtained a judgment by default for a portion of his demand, and upon which he issued execution, caused a sale to be made, and thereat, purchased the building and improvements — charging fraudulent collusion and conspiracy between the corporation and the loan company in withdrawing from him knowledge of the fact that its trtie name was the First African Baptist Church and not the Old African Baptist Church.

He further alleges, that, acting under the honest belief that the true name of the corporation was the Old African Baptist Church, he instructed his mechanic’s lien to be thus recorded, and that the corporation fraudulently and illegally took advantage of his error and mistake in its deal with the Mutual Loan and Building Company to defeat his rights thereon.

Plaintiff alleges that, in furtherance of this combination, the loan company instituted foreclosure proceedings against the First African Baptist Church, and that he appeared therein by way of third opposition and injunction, claiming ownership, but his opposition was dismissed — the company availing itself of the aforesaid mistake.

That in said executory proceedings, the property was sent to sale, and the seizing creditor bought same for $1,000.00, and immediately retroceded it to The First African Baptist Church for $6,000.00, on August 30th, 1897.

It is on this showing that plaintiff demands judgment against the defendant with recognition of his mechanic’s and builder’s lien on the property and improvements.

In limine, pleas of no cause of action and prescription of one, three and five years were filed and overruled, and thereupon, the defendant, the First African Baptist Church, filed an answer — the Mutual Loan and Building Company not having been cited.

The answer avers that while it is properly cited as The First African Baptist Church, the present organization is not the legal successor of the organization of the same name and which had expired by limitation of time — notwithstanding there are some of the members the new organization who were members oí the old corporation.

Denying the charges of simulation, collusion and fraud that are preferred by the plaintiff, the defendant sets up the title it derived in the executory proceedings mentioned in the petition from the loan company in the foreclosure of a mortgage; and it further pleads the benefit of the suit and judgment in Mutual Loan and Building Company vs. The First African Baptist Church, 49 Ann., 880.

The answer further charges, that at the time of the transfer by the first corporation known as the First African Baptist Church to the loan company, the plaintiff had abandoned his contract because the church corporation had failed to keep him supplied with funds; and that, as a member of the board of trustees and an officer of the church he was well acquainted with the situation of the affairs of the church and consented to the transfer lo the loan company, and which resulted in the subsequent sale and retrocession.

On the trial of the issues, thus stated, there was a judgment in favor of the defendant rejecting the plaintiff’s demands and the latter has appealed. .

A brief synopsis of the pertinent facts necessary to be considered is as follows, viz:

Chapman commenced work in the building of a new church edifice for defendant, and after receiving the second instalment of the price from the defendant, he discontinued operations on account of the inability of the hoard of directors to supply the necessary means to carry the work to its completion, and the inability of the plaintiff to furnish the money.

On that account, the building was left in an incomplete and unfinished condition.

One witness states it was finished as far as the framing and weatherboarding, and only a small portion of the sheathing was to be put up.

Many unavailing efforts were made by Chapman and the church directors to raise the necessary money. Finally, the Mutual Loan and Building Company was approached, and it eventually consented to advance $6,000.00 on condition that a clear and unencumbered title was made to it — the agreement being that the property was to be immediately reconveyed to the church corporation for the consideration of $6,000.00 on terms of credit for a period of ten years.

To this arrangement the church organization assented, and Chapman participated therein.

In order that there should be no liens upon the building, or property, the loan company required that a statement of all claims against either house or lot should be made up and placed in its possession to be acquitted out of the money loaned; and, accordingly, a conference was held between the church board of trustees and Chapman, and as a result thereof, it was agreed between them that his (Chapman’s) claim upon the building', in the condition it then was, should he fixed at $500.00. In addition to this sum, Chapman brought into the loan company various small bills which he owed upon the building, and they were all paid upon his approval; and he made no other or further claim.

He plainly and distinctly abandoned all further claim upon his building contract; and the residue of the money loaned was employed by the loan company in completing the church edifice.

That subsequently to the foregoing arrangements having been perfected, Chapman was invited to compete for the job of finishing the church on condition that he should furnish security, and that he tout the matter under consideration and offered the name of a person who had consented to become his surety; but that he subsequently withdrew his offer.

The fact that as a result of the conference, the balance of the indebtedness of the church was fixed at $500.00 is established by the testimony of quite a number of witnesses.

Not only is this statement made by a number of witnesses, but he (plaintiff) authorized the church organization to make a settlement with the loan company on that basis, and that sum was actually paid to him upon his approved account.

It seems quite clear and undoubted that the settlement was a perfectly fair and reasonable one, considering the fact that Chapman had contracted to furnish the material and perforin the work; and that he had been paid the two first instalments on his contract.

Having accepted this settlement, and by this means induced the loan company to make the advance to the church organization of $6,000.00 on the belief that the property was free of incumbrance, the plaintiff is without legal right or equity, to complain of the transaction as fraudulent, or a deprivation of his legal rights.

The church organization having made default on its debt, the loan company instituted foreclosure proceedings on its mortgage and purchased the property at sheriff’s sale; and thereafter conveyed same to the new organization styled the First African Baptist Church, on the 30th of August, 1897 — the former organization having bought said property from the Mutual Loan and Building Company in 1889.

The significant fact is, that Chapman filed a third opposition to the loan company’s foreclosure proceedings, and his demand was rejected. He prosecuted two appeals to this court from the judgment rendered, and his appeals were dismissed. He then instituted this suit and the court again decided against him. We think it entirely clear that his claim and pretensions are without any foundation in fact, as in law.

It is not at all necessary that we should enter into any discussion of the technical grounds of objection which have been urged with regard to the reorganization of the church corporation; for conceding that they are the same, we think it is fully established by the evidence that the loan company acquired a clear title, and conveyed the same to the defendant; and thalt it was the result, in great part, of the active assistance and co-operation of the plaintiff. And, he is equally without right to urge against the defendant any personal and pecuniary damages.

Judgment affirmed.

Nicholls, O. J.

T think the plaintiff’s .rights, under his judgment, if any he has, should be reserved.

Blanchard, J., dissents.

On Application por Rehearing.

Breaux, J.

Plaintiff and appellant in his application for a rehearing avers that his rights should be reserved against the “Old” African Baptist Church, and that the purposes of justice would be subserved by reserving to Chapman whatever rights, if any, he may have under the judgment against the “Old” African Baptist Church.

Although no such right Mas been discovered to date, yet, as plaintiff and appellant asks that as against the asserted old corporation they be reserved, we reserve them.

The rehearing applied for is refused and the conditional reservation asked for is granted.


text:
    No. 13,559.
    State ex rel. Dorestin Fruge Praying for a Writ of Habeas Corpus.
    Syllabus.
    Issues properly triable on appeal are not reviewable on habeas corpus.

      B. B. DuBuisson for Petitioner.
   The opinion of the court was delivered by

Breaux, J.

The rule laid down in State ex rel. Marceaux vs. Judge, 51 Ann., 197, is controlling here.

The issues presented will not be considered on an application for a writ of habeas corpus.

The application is refused.


text:
    No. 13,317.
    Edward Parker vs. Patrick McGlin and P. J. O’Keefe.
    Syllabus.
    A landlord who has commenced legal proceedings for the ejectment of his tenant, and before the termination thereof, enters upon the leased premises against the protests of the latter, and subsequently obtains his arrest and incarceration in jail upon a criminal charge, and without probable cause, is liable to both compensatory and punitory damages.
    APPEAL from the Civil District Court, Parish of Orleans.— Theard, J.

      John O. Wichliffe for Plaintiff, Appellant.

      Harry H. Hall for Defendants, Appellees.
   The opinion of the court was delivered by

Watkins, J.

This is an action in damages for personal injury, false imprisonment and malicious prosecution, and the petition demands of the defendants in solido the sum of $15,000.00 in compensation of and punishment for same.

The answer is a general denial, and on the trial, there was a judgment in defendant’s favor rejecting the plaintiff’s demands and the latter has appealed — the cause having been tried and decided by the judge.

The following is a brief synopsis of the claim of the plaintiff, viz:

That some time prior to the 16th of February, 1898, he rented from the defendant, Patrick McGlin, a house known and numbered 343 Magnolia street, and occupied the same as his domicile and place of residence.

That on or about the aforesaid date, the two defendants came to his dwelling and with force and arms, with the use of violence, against his will and consent, and positive prohibition, entered same. That after having thus forcibly entered his dwelling, they abused and mistreated him, using violent language; and that while thus in his domicile, he was put to the necessity .of arming himself with a pistol, in order to protect himself from actual assault by the defendants, to cause them to desist therefrom and leave his premises.

That about ten days after this occurrence, the defendants went before the First Recorder and lodged an affidavit against him, charging him with an assault with a dangerous weapon, and caused a warrant to issue thereunder for his arrest; and he was subsequently arrested upon said charge and incarcerated in the parish prison, and therein kept confined for the period of four days. That at the expiration of that time, an examination was held before the recorder, and, after a full and fair investigation of the grave accusation that was preferred, he was found not guilty and discharged.

The plaintiff avers thát this charge against him was given great publicity, and resulted in mention being made thereof in the daily newspapers of the city, to his great damage and injury.

lie charges that these acts were wanton, malicious and without probable cause, and done with the express purpose of injuring him.

The record discloses that the defendant, MeGlin, had, on the 24th of January, 1898, given to the plaintiff fifteen days notice to vacate the leased premises, and deliver possession of same;'and the occurrences related with regard to the defendants’ unlawful entry into plaintiff’s house took place after that limit had expired.

It appears that the plaintiff had not completely effected his removal from the dwelling at that time, but was engaged in the removal of his furniture and effects, when the defendants made their appearance and proposed to enter the house. The plaintiff being present, objected to their entry, and the defendants being persistent, foiced their way into the house; and the plaintiff retreated until he came within reach of his pistol, and grasped it and brought them to a halt. In this situation of affairs, the parties begun a somew'hat dispassionate discussion of the matter, and the plaintiff consented to an examination being made of the house by the defendants — same being assigned by them as the object of their visit, the defendant, MeGlin, expressing a desire to ascertain the condition in which the plaintiff had left his house, and claiming to have thought that the plaintiff had vacated it at the time.

But when the defendants arrived, they certainly discovered that the plaintiff still occupied the premises; and having resorted to legal proceedings to have the leased premises vacated, the landlord was without right to make a forcible entry therein.

But, while this is true, we do not believe that the evidence, altogether, justified the plaintiff in drawing his pistol and striking an attitude of intending an assault, notwithstanding the circumstances were very aggravating, indeed.

The record of the trial before the recorder satisfies us, as it did the judge of that court, that the charge made by the landlord, McGlin, against the plaintiff, was altogether groundless, and unsupported by any serious proof. It seems that the matter was never brought to the attention of the grand jury, and that no information was filed against Parker.

This affair seems to have attracted general attention, and caused plaintiff to be very conspicuous and unpleasantly mentioned in several of the city newspapers.

It is a matter of serious consequence for a man to have his domicile invaded by his landlord against his protest, especially in view of his ejectment proceedings; and it-is much more serious that he should be unwarrantably arrested and incarcerated in jail, and therein detained for a period of four days, upon a wholly groundless charge.

This proceeding partakes of the character of both a malicious prosecution and false imprisonment, and, in our opinion, it justifies the allowance of damages, both punitory and compensatory.

But we think they should be restricted to the defendant, McGlin, as it appears that O’Keefe did not actively participate in the arrest and imprisonment of the plaintiff, and that he was an on-looker at the tifcne McGlin entered t)he leased premises, and merely an accidental companion of his.

The judgment appealed from must be reversed.

It is, therefore, ordered and decreéd that the judgment appealed from be annulled and reversed in part; and it is further ordered and decreed that the plaintiff do have and recover of the defendant, Patrick McGlin, the sum of two hundred and fifty dollars, and all costs of both courts. In respect to the defendant and appellee, P. J. O’Keefe, the judgment appealed from is affirmed.

Rehearing refused.


author: Monroe, J.

text:
    No. 13,471.
    Lafourche Transportation Company, Limited, J. J. Dodd, et als., Liquidators, vs. William W. Pugh, et als.
    Syllabus.
    1. Authority to make notes and to grant mortgages must be express and special, and is not conveyed by a general mandate authorizing an agent to take charge of, adjust, manage, and control the interests of heirs in a succession, although such agent may be called upon, in the proper discharge of his functions, to manage a plantation which forms part of the inheritance ot such heirs and to obtain advances for that purpose.
    2. An agent’s declaration of his authority, made in an act of mortgage executed by him in the name of his alleged principal, proves nothing, as to the existence of such authority.
    3. Where the sole cause of action, stated in the petition, is a contract alleged to have been made by the duly authorized agent of the defendant; to permit the introduction of evidence of ratification, by defendant, by acquiescence in what such alleged agent has done, is to allow the plaintiff to shift his ground and recover upon a cause of action not alleged. *
    4. In a suit upon a promissory note secured by mortgage, evidence of want, or failure, of consideration is not admissible, under a general denial.
    5. One who accepts a mortgage, though merely pro forma, becomes a party to the act, and is bound by recitals therein contained affecting his interests; and a plaintiff, suing for the enforcement of such mortgage, need not set up the estoppel, in his petition, since one is not bound to allege matter the materiality of which depends upon the possible plea of his opponents.
    6. Where one makes a note as the agent of several others, and signs but once, for all his constituents, the fact that the promise to pay is made in the first person, “I promise”, does not make it an obligation in sol/iclo. Solidarity is not presumed, and, thus speaking, the agent represents his constituents, collectively. The case would be different if he signed separately for each constituent.
    APPEAL from the Tenth Judicial District, Parish of Assumption. Guión, J.

      Armond B. Blachmar for Plaintiffs, Appellants.

      Beattie & Beattie for Defendants and Appellees.
   The opinion of the court was delivered by

Monroe, J.

Plaintiffs, who are liquidating commissioners, sue as holders and owners of a promissory note, of which the following is' a copy, to-wit:

“Parish of Assumption, La., June 23, 1893.
“On the fifteenth of February, next, 1894, I promise to pay to the “ order of Wm. W. Pugh, agent and attorney in fact of Mrs. Mary E. “ Flower, Dr. Thomas B. Pugh, Lawrence IT. Pugh, Edward N. Pugh, “ P. Sidney Pugh, and Francis W. Denny, at the Bank of Commerce “of New. Orleans, La., the sum of five thousand dollars, for value “ received, with interest at the rate of eight per cent, per annum, from “ this date, until paid.
“(Signed) Wm. W. Pugh,
“Agent and Attorney in Fact.
“Ne varietur. Secured by an act of mortgage, on Mount Lawrence, “ Parish of Assumption, La., passed before me, this 23rd day of June, “ 1893.
“(Signed) Pierre L. Gilbert,
“Notary Public.”

The indorsement' upon the back of the instrument is in accordance with its tenor.

The petition alleges that Wm. W. Pugh, as agent and attorney in fact of the parties named, executed three notes, one for $2,500, payable December 5th, 1893, and two, for $5,000 each, payable, respectively, January 15th, and February 15th, 1894, (that held by the petitioners being the last one mentioned), and that, in order to secure the payment of the same, he executed an act of mortgage, in the name of his said constituents, 'on certain property, which is described, all under and by virtue of, a power of attorney annexed to said act.

The act of mortgage referred to rercites, that:

“Col. Wm. W. Pugh, herein acting for and on behalf of Mrs. Mary E. Pugh, widow of William F. Flower,” etc., (naming his constituents, as they appear on the face of the note) “by virtue of a power of “ attorney, general and special, hereto annexed and made part hereof “ for reference * * * declares that his said above named constitu- “ ents are truly, justly, and legally indebted to, and unto, Lawrence IT. “ Pugh, Esq., * * * in the full and entire sum of twelve thous- “ and, five hundred dollars, for a loan of money. And, in representa- “ tion of said indebtedness, the said W. W. Pugh, in his said capacity “ of agent and attorney in fact of the above named appearers has, “ under date of these presents, made and subscribed his three certain “promissory notes; one thereof for the sum * * * payable “ * * * to his own order, as agent, and indorsed in blank by him, “ also as agent aforesaid * * * now, therefore, in order to secure “ the punctual payment * * * . the said mortgagors declare that “ they do, by these presents, mortgage, affect, and specially hypothe- cate in favor of said mortgagee, and to inure to the use and benefit “ of any and all future holders of said notes, the said L. H. Pugh being here present, and accepting, the following described property, “ which the said mortgagors promise not to sell, alienate, or encumber, “ to the prejudice of this act,” etc. And the instrument was signed by said Wm. W. Pugh, as agent, and by Lawrence H. Pugh, (who accepted the mortgage) and was thereafter duly recorded.

The petitioners further allege that they have called on the recorder for a certified copy of the power of attorney referred to in said act of mortgage, and that he was unable to furnish the same, for the reason that the original had disappeared from his office, and was not to be found, and they reserve the right to prove the execution and contents of the same. The prayer of the petition is for citation and judgment, with recognition of mortgage, and for the seizure and sale of 'the mortgaged property.

Certain exceptions were filed in the lower court, but, in' this court, the only defense urged is that William W. Pugh was not authorized to execute the note and act of mortgage sued on.

It appears from the evidence that the defendants were the testamentary heirs of Eobert L. Pugh; that the Mount Lawrence plantation was part of the estate acquired by them as such heirs; and that they appointed William W. Pugh, who is the father of all of them, except W. E. Denny, of whom he is the grandfather, to represent their interests in said succession, by means of a power of attorney, which reads as follows, to-wit:

“State op Louisiana, Parish op Assumption,
“September 7, 1891.
“Know all men by these presents, that we, Philip S. Pugh, Edward “N. Pugh, * * * have appointed, and by these presents, do appoint Ool. William W. Pugh, of the Parish of Assumption, Louis- “ iana, our true and lawful agent and attorney in fact, for us, and in “ our name, place and stead, to manage, control, take charge of, com- “ promise and do any and all things, necessary and requisite, touching “ and concerning our interests in the succession of the late Robert “ Lawrence Pugh, and to make any and all 'settlements for us, and “ (in) our behalf, with the legatees under the last will and testament “ of the said R. L. Pugh, vesting our said attorney and agent, with full “power and authority to do any and all acts that we might do if “ personally present, and ratifying all that our said agent and attorney í^in fact may do, or cause to be done, by virtue of this power of “ attorney.
“Done and signed in the Parish of Assumption, on this, the day, “ month and year, first above written.
“(Signed) Philip S. Pugi-i.
“Edward N. Pugi-i.
“Ti-io. B. Pugi-i.
“Lawrence, PL Pugii.
“W. W. Pugh, Jr.
“Annie .T. Pugi-i.
“Mary E. Flower.
“W. F. Denny."

It further appears that, neither at-the date of the execution of the note and act of mortgage sued on, nor at any other time, has W. W. Pugh held any other procuration, the attempt to prove the contrary having failed. There is no doubt that, at the time tliat the note and act of mortgage were executed, he supposed that the power of attorney held by him conferred the authority which he undertook to exercise, but the bare reading of it shows that it did not. C. C. 2992, 2996, 2997, 3305; Folger vs. Peterkin, 39 Ann., 815; Whelage vs. Lots, 44 Ann., 600.

It is urged by plaintiff’s counsel that the authority to manage a plantation carries with it the authority to make notes for the purposes of such management. That question has been frequently considered by this court, and, in Folger & Co. vs. Peterkin, 39 Ann., 815, it was said: “Whether there exist professions, or functionaries, the nature of “ whose functions would include the right to bind their employers by “notes, or bills, without their express authority, might be questioned; “ but it is well settled that persons employed to manage ¡plantations, or to administer other property for their principals, have no such “ right.” Citing Laplante vs. Briant, 13 Ann., 566; Avery vs. Lawes, 1 Ann., 457; Nugent vs. Hickey, 2 Ann., 358; Robertson vs. Levy, 19 Ann., 327; Nall vs. Higginbotham, 21 Ann., 477.

It is, also, claimed, on behalf of plaintiffs, that the declaration, contained in the act of mortgage executed by the alleged agent, that he was acting under a power of attorney sufficient for the purposes of the act, is conclusive of the existence of such power of attorney, even although the same was not annexed, is not otherwise shown to have existed, and although, in the instant case, the preponderance of proof leads to the conclusion that it never did exist. If this doctrine should be maintained it would only be necessary for a man to go before a notary and declare himself to be the duly authorized agent of another in order to enable him to alienate or mortgage the property of such other and leave the latter without recourse. The proposition is not sustained by the decisions in Succession of Lehman, 41 Ann., 987; and Rouyer et al vs. Carroll, 47 Ann., 768, to which we have been referred, and is untenable.

It is further said that “a principal, who by his silence and conduct “ is presumed to be aware of. his agent’s unauthorized acts and does not disavow them, will be held to have ratified them,” and evidence was tendered to show ratification by the defendants now before the court, but the same was excluded, on the ground that it was not admissible under the pleadings. We are of the opinion that the ruling was correct. This action is distinctly'based upon the proposition that the defendants became bound by reason of a contract entered into on their behalf by their duly authorized agent; and, to permit the introduction of the evidence tendered, would have been to allow the plaintiffs to shift their ground of action and claim upon the basis of the defendants’ acquiescence in an act for the purposes of which their agent was wholly unauthorized.

The position of Lawrence H. Pugh is materially different from that of the other defendants by reason of the fact that he signed the act of mortgage as a party thereto. That being the case, the act, itself, by reciting that his agent was authorized to execute both the note and the mortgage, conferred such authority, though it had not been conferred before. In Jonau vs. Blanchard, 2 R. 513, it appeared that the father of a minor entered into a contract of commercial partnership on behalf of said minor, who had not been previously emancipated; and, the contract being in the form of an authentic act, the court said: “He “thereby clearly intended to give her the necessary authorization to “ enter into a partnership. This authorization was equivalent to an emancipation. Whatever words he may have used, effect must be given “ to his intention, if expressed, as in this case, in an act clothed with the necessary solemnities.”

Applying the principles thus enunciated to the instant case, there was no more reason why the iffaintiff should have especially pleaded the estoppel which prevents this defendant from denying what he had, by solemn act, asserted to be true, than there would have been, if the power of attorney referred to in said act had, in reality, been attached to it. The necessity for urging the estoppel arises only from the attempt of the defendant to disregard it, which attempt, the plaintiffs were under no obligation to anticipate.

“One need not allege matter whose materiality depends upon his “ opponent’s plea.” West vs. McConnell, 5 La., 427.

As urged, the estopipel was properly maintained. Even a witness to an act of mortgage is bound by it, in the absence of fraud or error. C. C. 3342, 3343, 3344; Reinach & Oteri vs. Improvement Co., 50 Ann., 497.

It is claimed on behalf of this defendant, that, inasmuch as the plaintiffs acquired the note in question after maturity, he should have been allowed to plead “all existing equities,” and his counsel complain that evidence tendered by them in support of such pleas was excluded. We find nothing in the record to indicate that the defendant was denied the right to plead any equities that he though proper. The ruling of the court, as we understand it, was upon the admissibility of evidence offered, with no other plea to sustain it than a general denial; and that ruling was correct, since it is well settled that want, or failure of consideration must be especially pleaded in a suit on a promissory note, as in the case of any other valid contract importing consideration. Langstaff vs. Lees, 11 Ann., 271; Kennedy vs. New York Ins. Co., 10 Ann., 809; Kathman vs. General Ins. Co., 12 Ann., 35. The counsel seem to admit the correctness of this doctrine in another part of their brief, in which they say: “There was no evidence, and could “ be none under the pleadings, to show a ratification of the making of “these notes; and there was nothing shown, and nothing could be “shown under the pleadings, as to the consideration. The question “ was merely on the plea of non est factum ”

We agree to this, as did the judge of the court a qua, but we can not agree, that, with such an admission, the learned counsel have left themselves any room, in which to argue that they ought to have been permitted to prove want, or failure, of consideration.

As to L. H. Pugh, therefore, we have an authentic act, to which'he was a party, and which declared, at the moment of their execution, that William W. Pugh was specially authorized, on his behalf, to execute the note and mortgage here sued on; and we have the note and mortgage, both importing consideration, in evidence, and no plea of want of consideration set up in defense. Under these circumstances, the argument, predicated upon the theory of this defendant’s having been the agent of the person from whom the plaintiffs acquired the note, has nothing to rest on, since so far as the defendant was concerned, Wm. W. Pugh acted as his agent by virtue of the mandate which was at once described and contained in the act of mortgage, and, so acting, made him liable to his supposed principal, and to the subsequent holder of the note, in the manner, and to the extent, as declared in that act and in the said note, which was identified with it.

Plaintiff’s counsel insists that the defendants, if liable at all, are liable in solido, and hence, that L. H. Pugh should be held for the whole amount claimed. We are unable to concur in this view. It is quite true that, if each of the defendants had signed the note in question, reading, “I promise to pay,” etc., they would have been liable in solido, but solidarity is not presumed, and the language, “I promise,” etc., is that of W. W. Pugh, speaking for his constituents, collectively.

The judgment appealed from, rejecting the demand against the other defendants, held L. PI. Pugh liable for his virile proportion of the amount claimed, and subjected his interest in the mortgaged property to the payment thereof. There is nothing in this judgment, as we construe it, which would prevent the plaintiffs from claiming from the defendants, thus released, upon the basis of money advanced and inuring to their benefit, or which would prevent the defendants from opposing such a claim by any defenses to which they might be entitled. A s was said in the opinion in a case already cited: “The manager of a plantation, having authority to obtain advances from a merchant, might get such advances through the medium of drafts, and, though “ the principal might not be bound as drawer, yet he would be bound for the money advanced, just as if it had been remitted upon a “ request contained in a letter, or otherwise.”

Folger & Co. vs. Peterkin, 39 Ann., 815.

It is.therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed at the cost of the appellants.

The Chief Justice takes no part in this opinion and decree.

Rehearing refused.


text:
    No. 13,294.
    First Natchez Bank of Natchez, Mississippi vs. Hartwig Moss et al.
    Syllabus.
    1. A wife, separated in property from her husband by a Judgment, can invest her money in a corporation and become the owner of some of its shares and receive dividends free from claims on the part of her husband or of any of his creditors. The fact that the husband assisted in the management of the company, without charging therefor, does not have the effect of changing her title to her shares in the corporation or her rights to the dividend from bier ‘to him, nor does it reinstate the dissolved community.
    2. A wife separate in property should contribute to the extent of her ability to the expenses of the family and to the education of the children.
    S. It follows that the same rule should control the husband; that he may, though absolutely insolvent, work so as to contribute to the expenses of the family and to the education of the children. If this work should result in increasing the wife’s revenue to a moderate extent, this would not render her liable for the debts of her husband. The property and the business were hers. The husband chose to work for nothing so that she might get some return from the business. It all being hers, it is not subject to seizure for his liabilities. The management of the property was her management and not his, and the property and business of the wife served her interest and not his.
    4. The testimony of the wife, as to the loan she invested in the company or firm in which the husband is employed, is supported by corroborating circumstances sufficient to sustain the loan as having been made by her and not by her husband. Tim latter had limited means, but it does not appear that the wife’s loan to the company or Arm was taken therefrom.

      ^ PPEAL from the. Civil District Court, Parish of Orleans — Ellis,

      Lazarus & Luce for Plaintiff, Appellant.
    Boatner, Dodds & Boatner for Defendants, Appellees.
   The opinion of the court was delivered by

Breaux, J.

This was a suit for a judgment declaring seventy-three shares of stock in the corporation styled Janvier & Moss, Limited, as well as the dividends thereon, in the name of Mrs. Rosa Rose Moss, wife of Hartwig Moss, to be the property of Ilartwig Moss and thereby liable to the claim which the ¡petitioner holds against the latter and for which it obtained a judgment.

Petitioner asks to have the title of Mrs. Rosa Rose Moss to this stock declared fraudulent and simulated, and, also, for an injunction restraining Mrs. Rosa Rose Moss and Hartwig Moss from parting in any manner with these shares. Mrs. .Rosa Rose Moss moved to have the injunction dissolved, on the ground that she cannot lawfully be deprived of the right to use and dispose of her property as she sees fit. She also filed an answer in which she averred that she became separate in property from her husband by a judgment of the District Court for the Parish of Tensas on the 19th day of January, 1888; and that by the said judgment the community of acquets and gains existing between her and her husband was dissolved, and that she was authorized to administer her property. Janvier and Moss, also made defendants, in their answer denied that Hartwig Moss is the holder of any stock, or has any interest in the corporation of Janvier & Moss, Limited.

The statement of facts showed that plaintiff is a judgment creditor of Hartwig Moss for a large amount, as alleged by it, and that a fi. fa. issued against Hartwig Moss under the judgment against him, and the property in the hands of Janvier & Moss, Limited, which is the subject of controversy in this case, was seized as his; that plaintiff filed a supplemental and, amended petition to their original petition in which they allege, in substance, that Mrs. Rosa Rose Moss, wife of Hartwig Moss, has in her own name no other property than that described in the original petition, and which plaintiff charged was the property of her husband, except certain real estate situated in the city of New Orleans ■which plaintiff also believes and avers is the property of her husband, or of the community, and, as such, is liable to its claim, but that being affected by mortgage, plaintiff does not choose to have it seized and sold for its claim.

On the part of defendants, the facts are that Mrs. Moss, as averred by her, obtained a judgment of separation of property against her husband in 1888; that she owned a plantation in the parish of Tensas which was cultivated for her account and which she sold in 1898.

It appears that Hartwig Moss was connected with Ferdinand Marks in the insurance business from 1891 to 1893, and that during that time he realized a considerable sum, five thousand two hundred and fifty dollars of which was turned over to a commission merchant of this city in 1892 (or'rather the claim was sold to this merchant), who was or had been the commission merchant of Mrs. Moss, and who was also Mr. Moss’ commission merchant before he (Moss) became insolvent.

In 1893, Janvier and Moss, after the latter had left the Marks firm, organized a corporation under the limited liability act, with a capital of ten thousand dollars, not paid up. There was no cash paid on either side. The late Mr. Janvier had many clients and friends with whom he had dealt for many years, while Mrs. Moss, the other member of the firm desired to secure employment for her husband. After receiving a number of shares, she placed two thousand dollars with the firm as a loan and Mr. Janvier, the other member of the firm, made a similar advance to it. No other amount was ever contributed to the business of the new or the old firm. The agreement was tha-t this amount would not be returned to Mrs. Moss until the corporation had earned it. Owing to the death of the senior member of the firm, another corporation was organized in 1898, which succeeded the former. In this new corporation Mrs. Moss held seventy-three shares. The stock was issued to Mrs. Moss on the one hand and to the young ladies, representing the Janvier interest, on the other, as representing' their interest in a well-established business. Mr. Moss attended, in great part, to the management of the business. In fact, it appears that the business depended largely upon his services and industry, together with the industry of the secretary and treasurer of the corporation who represented the Janvier interests. It appears that he, Moss, is not paid anything for his services; Mrs. Moss draws the money. There is an account kept in her name showing the amount she has drawn, but Mr. Moss has no account with the firm and does not draw any money therefrom.

With reference to the assets of the firm, .the vice-president testified that they consist of the business agency of certain insurance companies, a certain business on their books, and good will acquired by the industry of those in charge of the corporation; that without this the shares would be of no value. The good will of the business depended largely upon the name and influence of the late Mr. Janvier. It was, afterwards, retained by the efforts of the members of his family, and the services of Mr. Moss. The evidence reveals that the shareholders .made something over and above expenses.

When the case was tried in the district court, Mrs. Moss was still the lender of the two thousand dollars before stated, and the owner of the shares which were issued to her when the corporation was organized.

The record discloses that Mr. and Mrs. Moss are the parents of six children; the oldest was in his fifteenth year when the parents removed to New Orleans. The judge of the district court rendered judgment in favor of the defendants, and dissolved plaintiff’s injunction, reserving the former’s right in the plaintiff’s bond. From this judgment plaintiff appeals. Nothing in the testimony shows that the writ of fi. fa. which was issued would take anything except property belonging to the wife. The money advanced to the firm was unquestionably hers; there is no testimony to the contrary. The proof that, years ago, the husband went into partnership with Ferdinand Marks and received for his share a considerable amount, as before stated, does not show that the wife received any part of this sum. They had separate accounts and nothing shows that the two thousand dollars in question were transferred from his, the husband’s account, to hers. At one time, she owned a plantation, and crops were cultivated for her account, from the proceeds of which it may well be that this amount in question was realized by her. At any rate, the evidence does not show that this amount was turned over to her by her husband. The business of Janvier and Moss, to which the wife contributed this amount, was conducted exclusively in her name in so far as she was concerned. Whatever were the returns, they were considered as her property. The amount was only an incident of the main issue. It is not claimed by plaintiff as belonging to the husband. From that point of view we think that the wife’-s evidence, regarding these two thousand dollars, is amply corroborated.

From the principle that a separation of property dissolves the community, it results that all that the separate spouses acquire is for his or her account alone, but here plaintiff insists that the wife is benefited to such an extent by the energy and industry of her husband, that the profits must be held as accruing to his separate benefit, or that of the community. We will state here that it does not appear that the profits were at all large. The wife, it is true, did manage to buy real estate of no great value in this city, but it remains so encumbered with mortgages that plaintiff has not undertaken to have it seized, although it contends that it, while in the name of the wife, must be held under the rule which it invokes, to have fallen into the community.

With reference to a community which is dissolved by a judgment of separation of property, it may well be that the husband and wife may reinstate it by abandoning' the protection accorded to the wife under the judgment, provided the interests of third persons remain undisturbed thereby. But nothing of the kind seems to have been intended here, either expressly or impliedly. There were no large accumulations made and placed to the credit of the husband. He renders services, it is true, but they are entirely in the interest of the wife. It would be different if the husband were not serving in the wife’s interest, but the wife’s interest were serving the husband.

The law provides that the wife should contribute to the expenses of the family and to the education of the children, to the extent of her ability. She is held to their entire support if the husband is entirely without resources. It follows that to the extent of his ability, at least, as much ,in the way of support, is incumbent upon the husband. If the husband, after having seen his stores dwindle down until he becomes absolutely without the means to support and raise his family, then assists his wife in this most laudable purpose, instead of remaining supinely indifferent, we cannot think that this can be taken as an evidence of intention to re-establish the community. In fine, in our view, it is not possible under the law to change the title, to the shares in question from the wife to the husband on the evidence here. The money advanced was advanced by her and the Jshares were issued to her in good faith. The services of the husband that the wife might get a revenue therefrom did not have the effect of converting them into his property. This was not a large corporation yielding a large revenue in which the husband received a large salary and dividends on shares nominally in the name of the wife, but it is, as we take it, a partnership organized into a corporation limited in order, we infer, to concentrate the business and make it less difficult to manage, and from which the wife receives some revenue. By the judgment of separation, the wife has the enjoyment and management of her paraphernal property. If it prospers a little owing to the husband’s management for her, the profits do not fall into the community or become his own. The judgment of the district court is affirmed to the extent of Mrs. Moss’ interest in the firm of Janvier & Moss. That, we understand, includes seventy-three shares, all, as we take it, involved in this suit.

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

Rehearing refused.


text:
    No. 13,320.
    Succession of Christopher V. Haile; Opposition of Alden McLellan to Final Account of Administratrix.
    Syllabus.
    Tlxe mortgage creditor who had undertaken to foreclose his mortgage filed a rule to set aside the probate order obtained by the administratrix to have the mortgaged property sold to pay the debts of the succession. The administratrix joined issue. The rule was decided on the day the property was offered for sale under the order of the Probate Court.
    The mortgage creditor did not move for an appeal, take out an injunction or do anything to have Ills right recognized as a seizing creditor. On the contrary, he bid in the property offered under the probate order, and, thereby, abandoned his rights under his order of foreclosure.
    Held : That the property mortgaged was properly assessed for the costs, including the commission of the administratrix and the fee of her counsel as fixed by the court on appeal.
    J^PPEAL from the Civil District Court, Parish of Orleans — Ellis,

      Boatner, Dodds & Boatner for Administratrix, Appellee.

      Harry H. Hall for Opponent, Appellant.

      ■John P. Sullivan for Louis P. Larose, Opponent, Appellant.
   The opinion of the court was delivered by

Breaux, J.

The case is before us on the appeal of a mortgage creditor of the succession from, a judgment allowing commissions to the administratrix, and a fee to her attorneys, his defense being that he, as mortgage creditor, should not be condemned to pay these charges. The facts are, that:

Mrs. Christopher V. Ilaile, widow of O. V. Haile, obtained letters of administration on February 1st, 1899, on a petition for the administration of the succession, alleging that the real estate inventoried was mortgaged for thirty-two thousand six hundred dollars, with interest, subject to a stated credit, and that there were no funds out of which to pay the debts. An order dated February 3rd, 1899, was issued by one of the divisions of the district court directing a sale of all the property of the succession to pay its debts. Under this order the property of the succession was advertised and sold. Nearly all the immovable property of the succession sold at this sale was adjudicated to the appellant and the aggregate amount of the sales of the different properties under this order was less than the amount of his mortgage.

On January 16th, 1899, the same day the notice of demand under the writ of seizure and sale was served, appellant sued to foreclose his mortgage via ejecutiva. No notice of the order of seizure and sale was given for the reason that the administratrix had not qualified in that capacity. On the 19th day of January, 1899, the administratrix having on that day taken out letters of administration, notice of demand of payment was addressed by the clerk of court to the administratrix, and on the third day of February following it was duly served. On February 3rd, a notice of seizure in the executory proceedings sued for by the appellant was duly served upon the administratrix.

On February 16th, McLellan, appellant here, took a rule upon the administratrix setting out that under a writ of executory process taken out in Division 0 of the district court, the property had been seized by the sheriff; that the order to sell the property to pay the debts granted in the probata proceedings in Division A of the court was granted after the order of seizure and sale, and that it was improperly granted. The trial of this rule went over until March 10th. On the trial of this rule on that day, the evidence shows that the petition for executory process was filed on the day before mentioned, and that the notice of seizure was served as before stated. It also appears that the property was advertised to be sold under the writ on the 23rd day of March, 1899. The judge of the district court held that no notice of seizure had been given; that the seizure was without legal effect. He .rescinded the order nisi which he had granted on the rule to show cause, and dismissed the rule. On the same day, after a very short time had elapsed, the property was offered for sale by the auctioneer. The administratrix, thereafter, filed a final account and tableau of distribution in which she charged herself with the proceeds of the real estate and other items and credited the estate with the amount to be paid, and among them the amount of appellant’s mortgage. The opponent, appellant here, filed a petition of opposition to this account in which he included a full statement of the amount due on his mortgage, and opposed every privilege placed upon the account in so far as it was proposed to pay these privileges upon the property mortgaged. He averred that he promptly applied for the sale of the mortgaged property under executory process for the purpose of preventing the proceeds of the mortgage in his favor from being burdened with the privileges and charges of administration, and also stated by way of opposition that the court held that the privilege in question should be paid from the proceeds of sale of the mortgage property. He then opposed the' following law charges as being excessive and illegal:

Advertising and expenses as per the auctioneer’s return.....$ 756.70

Administratrix’s commission ............................ 1005.21

Fee of attorney ........................................ 1674.21

The opposition to the first item is abandoned. The remaining issue is whether or not the mortgage creditor shall pay from the proceeds of the mortgaged property the second and third items just stated. Appellant chose to be present at the sale by public auction and to become the adjudicatee of the property mortgaged. * He did not object to the judgment on the rule, but remained entirely silent as relates to it until the account and tableau were filed, and then, for the first time, the objection before stated to two of the items was presented. Appellant seeks to meet the position that he had virtually abandoned all recourse under his writ of seizure and sale by appearing at the sale, and buying the property mortgaged, by urging that the rule having been decided when the sale was about to be made, he either had to protect himself by bidding at the sale or take the chances of having the property sacrificed at his expense. This being the position of the appellant, let rt: briefly consider the position in which the administratrix and appellee was. Tlie proceedings, at her instance, were sufficiently regular, and in the District Court, where the rule was issued to set them aside on the ground that a seizure had been made in the executory proceedings, the administratrix appeared in an answer setting out that a sale should be effected under the order which she had obtained for its sale. We have seen that the judgment sustained the defense made. At the time appointed for the sale, she could not do less than to sell, especially as the opponent did not interpose thd( least objection after the judgment in the District Court had been rendered. It is useless now to discuss the steps that might have been taken by defendant in rule, appellant here. In any event enough should have been done by way of injunction, opposition or appeal to let it be known that he did not propose to accept the judgment on the rule as correct. It became necessary for him to determine under which order he would seek to protect his interests. He elected to act and bid under the order of the probate court ordering the sale of the property. It does seem that he is thereby concluded. Appellant avers that the only limitation or restriction upon his right was (possible neglect and delay in enforcing it and that any ordinary court may grant an order of seizure and sale against property specially mortgaged in an administratrix’s hands. This rendered it the more necessary and important to stand by the seizure and sale, and not abandon it and become a buyer under the order to sell for the payment of the succession debts. That he did not have the time necessary, is not made evident by the testimony. It does not appear to us that it would have taken much time to arrest the sale after the judgment in question had been rendered in the District Court, and compel obedience to the writ of seizure and sale. Appellant has accepted the proceeds of the sale without urging the least objection and he is, we think, thereby concluded from raising the issues he here seeks to have sustained. One who deliberately abandons a position under the circumstances of this ease for another which he now contends was not tenable, in opposition to the rights of which he was the holder, cannot afterwards sustain the ground that he should not be'made to pay the commissions and fees that he would not have had to pay had he persisted in foreclosing his mortgage. Furthermore, on another ground: Our examination has not led us to the conclusion that appellant had the right (in view of the irregularity of his proceeding), to hare annulled the order of sale by the administratrix. The proceeding was not regular. The writ upon which appellant grounded his right to annul the probate order of sale and to proceed with the sale was issued at the same time as the notice of demand. They were simultaneously placed in the hands of the sheriff. This practice does not seem to have, received the sanction of this court. It appears from the meaning of the Code of Practice, as interpreted heretofore by this court, that notice of demand of payment, or notice of judgment in executory proceedings must be issued by the clerk and duly served before placing the writ of seizure and sale in the hands of the sheriff for execution. It must be borne in mind that the questions raised do not relate to a sale made under a writ. Prior to the sale, when one undertakes to foreclose his mortgage, it does appear from the Code of Practice, and the decisions pertaining thereto, that a notice of demand should be served, returned, and three days elapse before placing the writ of seizure and sale in the hands of the sheriff for execution. The syllabus in Billgery vs. Ferguson, 30th Ann., 84, brings out clearly the point decided in the opinion. “A writ of seizure and salé cannot legally issue, until three days after notice of the decree of court granting the writ has been served on the debtor.” The court, in its opinion, cites Hart and Hebert in Liquidation vs. Pike Bros., 29th Ann., 262. In another case the syllabus reads: “The object of the notice is to accord a delay to the debtor before issuing the writ to enable him to appeal or protect his rights by any other mode.” (Italics ours.) The Code, under this interpretation, requires three days’ notice to the debtor, service and “a return of the original with his report.” C. P. 736. We think that good practice requires adherence to prior decisions requiring service and delay as -just stated.

The complaint directed against, the administratrix as to the amount of her claim is completely met by referring to the law, which allows 2 1-2 per cent, on the amount of inventory, bad debts deducted. The amount of administratrix’s commission is sustained by Art. 1069 C. C. This brings us to a consideration of the amount charged as attorney’s fee.

With reference to the' fee of attorney, it is alleged that it is excessive. Under the principles laid clown in,'the Succession of Rabasse, 51st Ann., 590, and in Succession of Richards, 49th Ann., 1115, the court examined the pleadings and considered the value of the services Which the court fixes at 2 1-2 per cent, on the amount of the inventory, viz: one thousand one hundred and five dollars and thirty-six cents.

The administratrix carried an amount on her account as administratrix of one hundred and fifty-three 74-100 dollars, due to L. P. Larose. The judge of the District Court decided that this was an ordinary and not a privileged debt. Larose appealed from the decision. On appeal all the parties in interest consent to let this claim remain on the account with privilege as carried on the account. To this extent the judgment appealed from must be amended.

Eor reasons assigned, the judgment of the district court is affirmed, except as to the one hundred and fifty-three 74-100 dollars before mentioned.

It is ordered, adjudged and decreed as to this amount that it is secured as to its payment by privilege on the account of administration with rank as- set forth on said account. The fee of attorney is reduced to .one thousand one hundred and five dollars and thirty-six cents, secured by privilege. This amendment is made at the cost of appellee.

Rehearing refused.

Monroe, J.: “I dissent.”