text:
    No. 7331.
    New-Orleans Insurance Association vs. B. L. Labranche et al.
    A tax sale of property which is afterward ratified by the former owner can not b treated as a nullity, no matter how many latent informalities there may have been in the salo affecting its validity. Such a sale, however voidable, is not void-
    A sale which is prima facie valid can only be logically attacked in a revocatory action, but if it appear that both parties have consented to try the issue of the validity of the sale in a collateral proceeding, this court will pass on the issue in that form of action.
    A sale however voidable will not be annulled at the suit of one who fails to show that he has been injured by the sale.
    Peremption of a mortgage can not take place pending the possession of the mortgaged property by the mortgage creditor, who holds under a voidable tax-sale, and should such sale be annulled the mortgage will revive with the rank it held at the date of the sale.
    APPEAL from the Fourth Judicial District Court, parish of St. Charles. Duffel, J.

      Leovy & Kruttschnitt for plaintiff and appellee.

      St. Mauice Berault and B. & J. Legendre for defendant Montegut, appellant.
   The opinion of the court was delivered by

White, J.

Montegut, one of the defendants in this cause, was the owner of two notes of Labranche, secured by vendor’s privilege, for $3500 each, as evidence of a part of the credit price of a sale of a plantation made by him to Labranche, on the 13th November, 1867a duly recorded on the 18th November, 1867. These notes were merged to judgment against Labranche on the 21st January, 1874, with recognition of vendor’s privilege and mortgage. At a tax sale made by the tax collector of the parish in which the property was situated, on the 17th December, 1874, Montegut became the adjudieatee, for $1600 in cash» the sale being duly recorded in December, 1874, and a deed was made by the Auditor to Montegut on the 26th of July, 1875. On 14th January, 1876, by public act, Labranche ratified the tax sale of 12th December, 1874, and the Auditor’s deed of July 26th, 1875. The plaintiffs, as holders of two mortgage notes of Labranche, identified with an act recorded the 21st February, 1873, instituted on the 23d November, 1877, the present action against Labranche and Montegut, against the former as their debtor, and against Montegut as a third possessor. They allege the absolute nullity of the tax title to Montegut, without asking it be so recognized, and pray that Montegut be condemned to give i property or pay the debt by them held.

The reasons upon which the demand of plaintiffs is founde substance, that the tax sale to Montegut being an absolute : not have the effect of freeing the property from mortgages. Second, that Montegut not having reinscribed his mortgage whilst in possession as owner, it perempted on the 18th of November, 1877, -and hence that their claim is first in rank.

As to the absolute nullity of the tax sales, we think the pretension at best very doubtful. The constitutional provision giving to all tax sales prima facie validity would seem in terms to be a negation of the idea of an absolute nullity when applied to tax sales having a semblance of being, for the proposition that an act must at one and the same time be held prima facie good, and yet be considered as never existing, is a bald contradiction in terms. Nor does the re ence made by counsel to the opinion of Judge Cooley as to the burden of proof help the fallacy — for if the burden be in favor of the sale, and its validity is to be held sacred until shown to be informal, it would seem that such fact alone whilst leaving room for a relative, would exclude the conception of an absolute, nullity.- Be this, however, as it may, as to which we express no opinion, it is manifest that the sale in controversy can not be considered as absolutely null. Even if the latent informalities had been such as to give it that nature or want of nature, it has been formally ratified by the owner, and that ratification made it, if it were primordially null, thereafter so only as to the rights of others; in other words relatively so. This view would furnish just ground for the dismissal of' plaintiffs’ suit, for if • the tax sale be simply voidable, the revocatory action should have been resorted to, but as no exception has been taken to the method of procedure, and as both parties have apparently tried the case as if this were a revocatory action, in order that there may be an end to this litigation we will determine the matters presented. The sale to Montegut, then, under the view we have taken, being, if voidable at all, only so to the extent that it prejudiced plaintiffs’ rights, the first inquiry which presents itself is, did it so prejudice them in any way ? The evidence discloses that Montegut at the time of the sale was the ranking mortgage creditor, holding a claim for over $8900, and that at the tax sale he paid as the purchase p rice $1600 taxes claimed by the State, that then, since, and now, the property was and is worth less than one third the claim of Montegut. Granting, then, the informalities upon which plaintiffs rely, how have they been injured by them? What benefit'could they derive from an annulment of the sale? The jurisprudence of this State has long since consecrated the galutary doctrine that courts exist to enforce rights and redress wrongs, that they will not lend their aid to the annulment of titles where rty seeking their interposition can -not possibly take relief from nting of the remedy invoked. Copeland vs. Labatut, 6 A. 61; vs. Emerson, 8 A. 503. But plaintiffs contend that they have an interest in the avoidance of the sale ; that Montegut failed to rein-scribe his mortgage since the tax sale and possession by him of the property; and hence, if the sale be set aside, they will become the ranking creditors and take the proceeds of the property. Is the position tenable under our law or under the law, of France, which they specially invoke? We think not. @ur Code provides, in art. 3409, which is similar to C. N. 2147 :

• “ The servitudes and incorporeal rights which the third possessor holds on the property before his possession of it are revived after his relinquishment, or after the sale under execution made upon him.”

Under this unambiguous provision, were Montegut evicted, by the benevolence of the lawmaker would come the restitutio ad integrum. The annulment or recision of the sale would have the effect of placing the parties in the position they held before the sale, each party being restored to the rights he then had, and abandoning those which had ineffectually been transported to him. Solon, vol. 1, pp. 62, 63, 64. Larombier, vol. 2, pp. 286, 287, 288. Restitutio ita facienda esl ut unusquis que integrum jus suum recipiat. L. M, C. de minoribus. These principles are the outcome of natural justice, and are dictated by'the wise motive that courts may not be made the instruments of injustice by lending their aid to enrich one man at the expense of another. Give restitution, and, by the proof in the record, plaintiffs could take nothing from annulling'the sale. Plaintiffs, however, say, grant these principles, yet Montegut can not be restored to the mortgage rank he had at the time of the sale, because of non-reinscription. We can not take one provision of law, that which dictates reinscription, and abandon every other. We must construe the whole Code as one statute, harmonizing its provisions, and enforce them all; as well those which say that one can hot acquire or have a mortgage on his own property and that which provides the restitutio in integrum as, also, the one pointing out the necessity of reinscription. In fact, the principle that no one can mortgage unto himself his own property is axiomatic, res sua nemine servit and to say that one must reinscribe against himself would be compelling the doing of that which the law says can not be done. Under our system, a forced sale or adjudication operates, as it were, a purgation of the mortgages on the property sold, so that at the very moment of sale the rights of parties are fixed, unless the sale for some cause be rescinded. The rights being fixed, the reason for inscription ceases. It would be, indeed, an inequitable system which would allow a creditor whose rights against the proceeds would entitle him to nothing to lie in wait for the unsuspecting owner, and when the useful time for reinscription had passed take, by way of action in nullity, that which he could not have obtained by the timely assertion of his rights. Although we ar informed of no principle upon which such an inequitable theory could be sustained, we are told that the jurisconsults and writers of France recognize and enforce it, their law being, it is claimed, like unto our own.

The view, however, taken of the French law by counsel is, we think, entirely erroneous. In France, as in this State, a forced sale under adjudication has the effect of determining the rights of mortgage creditors, and the creditors are no longer entitled to follow the property, except for the quantum of proceeds resulting from the sale, to which their rank at the date of sale entitles them, either by inscription or reinscription. This determination there as here dispenses from reinscription. Troplong, Hypo. no. 720; Grenier, vol. 2, no. 243. “ It is a rule,” says Troplong, foe. cit, “ of unvarying application that whenever a mortgage passes from the position of a real right to that of a right on the price, all the rights of preference immediately and by the force of things revert to this price.”

Says Paul Pont, Hypo. no. 1056: “ In the case of forced expropriation, we hold, with the majority of. authors, and with the prevailing jurisprudence, that it is on the day that adjudication is made that the hypothecary inscription produces its effect as regards the creditors, between themselves and the adjudicatee.” The same author says, at no. 1279 and 1280, that the reason of the rule is that a sale made with the formalities required by law for forced sales is presumed to bring a just price. But there is another system in France, unknown to our Code, of freeing property from mortgage, and which is called purgation and surrender. It is these provisions which have misled counsel, and by the light of which the authorities so elaborately quoted must be read, in order to their proper understanding. The systems to which we refer are those recognized in art. 2180, par. 3, O. N., as a means of extinguishing mortgages “ by the fulfilling of the formalities and conditions prescribed to third persons for purging the property acquired by them.” The rules under which the purgation is to be had are found in O. N. 2180 to 2185, inclusive. They give the right to any mortgage creditor who offers an additional price for the mortgage property to compel the purchaser to re-offer it at auction ; and a method is provided for distributing the price. This system has given rise to several .disputed questions; one of which was, whether the mortgage creditor who becomes owner by purchase or other voluntary title of the property mortgaged to himself and to other creditors of his author, and who has failed to reinscribe his mortgage within ten years, preserves his rank as a mortgage creditor notwithstanding his failure to reinscribe, if either under the hypothecary action or proceedings for purgation he ceases to be the owner and some other becomes the adjudicatee.

¡The answers oí courts and authors have been severally in the negative, because, until the final adjudication of the property and the conclusion of the purgation proceedings the third possessor had and knew he had only a precarious title, which at any time might be destroyed* under the law if a higher bidder than himself could be found among-his co-mortgagees or third persons. Thus, having nothing but a defeasible title, in order to protect his rights as a mortgage creditor,, which he might be called on to exercise at any moment, he should rein-scribe, evén if the time for making the reinscription should be reached during his precarious possession. It is only when the mortgage has produced its effect by final adjudication or purgation that the obligation toreinscribe ceases, and it is this doctrine of reinscript-ion under the system of purging a property from mortgage which is referred to by Paul Pont, Hypo, nos 1215,1054, and, incidentally, by Pothier, as, also, Troplong, Hypo. no. 726, Us, and the eases of Billoueh vs. Samson and Dupre vs. Tongievis, quoted by counsel for plaintiff.

Paul Pont, at no. 1215, in saying that an evicted third possessor could only exercise his right of mortgage when he had reinseribed, refers to his proceeding, nos. 1054 and 1062, and in no. 1054, after laying-down the true principle as to recording, says the necessity of reinseription exists as long as the original inscription has not produced its effect. Such, also, is the doctrine of Pothier, who, under the ancient law, taught-that a mortgage creditor who acquired the mortgaged property was in danger of being primed by creditors of inferior dignity, unless he took the steps required by law to-secure his proportion of the proceeds.

In referring to this view, Pont well adds that now that the law of mortgages is founded on the principle of publicity, for a greater reason than formerly must it be said that a mortgage creditor who acquires the mortgaged property preserves his mortgage on it until he has purged it only by inscriptions made and renewed according to law.

How completely our conclusion harmonizes with these views is obvious when it is considered that under the ancient and modern French law the purchaser’s rights were not fixed by an ordinary adjudication, he being compelled by the one, in order to secure his claim, to-oppose his right to the fund produced by his bid, and by the other to resort to the procedure of purgation. In other words, under both systems the existence of a final judicial adjudication was a test as to the necessity of reinseription.

This idea is clearly conveyed by Pont, no. 1062, where he says: “ The effect of the mortgage being produced, the necessity of renewing the inscription ceases only at the time of the final adjudication or of the offer authorized by article 2173.” Troplong, Hypo. no. .726, Us, quoted by counsel, and at nos. 726 and 720, not quoted, holds the same doctrine) namely, that as the third possessor, under the system of purgation, has only a precarious tenure, being liable to eviction by the other creditors, “ 7ie must until he has purged the property according to law reinscribe his mortgage up to the time of adjudication in order to preserve it from peremption.” Thus the writers upon whose opinion plaintiffs’ counsel rely to sustain their position directly and in terms refute it. Nor is the jurisprudence of France, which is relied on, any more favorable to their proposition. In the cases cited, Dupre vs. Tongievis, Cassation, February 5,1828, Journal du Palais, vol. 21, p. 1133, and Billouch vs. Lambert, (Samson) Cassation, May 1,1828, Journal du Palais for 1828, 1428, the doctrine held is that the reinscription is required in default of purging, according to law. In fact, the synopsis of the last case expressly says “that the third possessor must, if he does not fulfill the formalities of purging, renexo the inscription in order to preserve his hypothecary rank.” The very cases, then, which are quoted destroy the doctrine they are cited to establish, a forced sale under oxer law is a purgation.

Even in France, where the system of purgation exists, an overwhelming line of authority teaches that'where there has been a final adjudication in its nature dispensing with purgation reinscription ceases to be necessary. In Bonvait vs. Macon, J. P. vol. 22, p. 889, it was held by the Royal Court of Grenoble that the hypothecary inscription has attained its object by the final adjudication of the mortgaged immovable, and that, in consequence, it is not necessary, to avoid losing priority, to renew the inscription, the ten years of which only end after the final adjudication of the mortgaged property; and in the case of Enregistrement and Demailly vs. Duretz, July 7,1829, p. 1204, Journal du Palais, 22, it was held by the Court of Cassation “ that the mortgage creditor who becomes the adjudicatee of the immovable encumbered by his mortgage is not obliged, in order to preserve his hypothecary rank, to renew his inscription within ten years from its date, and that the recording has produced its whole effect from the day that the judgment of final adjudication of the mortgaged property has become irrevocable; and see numerous cases quoted in note to this decision; and, also, Paris, August 21, 1862; J. P. for 1863, p. 621; Bordeaux, November 19, 1868; J. P. for 1869, p. 578; Paris, March 24, 1860 ; J. P. for 1860, p. 922.

Our conclusion, then, is, that the necessity for reinscription in order to preserve the rank of Montegut’s mortgage did not exist; that if we were to annul the tax sale by restitution, the entire proceeds of a new sale would be attributable to Montegut, whose mortgage- largely exceeds the value of the property; that, hence, the plaintiff, whose cause of action depends upon injury to his rights, is ryithout reason of complaint, and can not invoke the aid of courts to undo that which judicial machinery would immediately restore.

It seems there was a tract of land in rear of the plantation which did not pass to Montegut by the tax sale, and we do not, therefore, consider that it is covered by the decree we shall render.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and, proceeding to render such judgment as should have been pronounced below, it is decreed that there be judgment, in favor of Lucien Montegut and against plaintiffs recognizing the property included, in the tax sale herein above referred to as the property of Lucien Montegut, free from the mortgage asserted by plaintiffs. The costs of both courts to be paid by plaintiffs.

The parties to this cause have by written consent on application for rehearing, asked a modification of the decree previously rendered, in order to correct an oversight as to the parcel of land not included in the tax sale. We grant the rehearing, therefore, in order to enable us to modify our decree.

On Rehearing.

It is ordered that our former decree be set aside, and it is ordered that the judgment below be reversed in so far as it decreed the property covered by the tax sale to be stricken with plaintiffs’ mortgage.

It is further ordered that there be judgment in favor of Lucien Montegut and against plaintiff, recognizing the property included in the tax sale as the property of said Montegut,free from the mortgage asserted by plaintiff. That as regards the double concession, there be judgment in favor of the plaintiff and against Lucien Montegut, condemning said Montegut to surrender said double concession, measuring about seventy-nine superficial acres, in plaintiffs’ petition described, and not included in the tax sale.

It is further ordered that the costs below be paid by Montegut, those of the appeal by the plaintiff.


source: Caselaw Access Project

author: Spencer, J.

license: Public Domain

text:
    No. 7150.
    Oscar Chopin vs. J. N. Clark. Alexander County Bank, Intervenor.
    'The rights of a consignee, on the goods shipped to him, who has refused to accept the consignment, and who attaches the goods as an ordinary creditor, are subordinate to the rights of an intervenor who has advanced on the goods, and holds as the trans terree of the consignor, the bill of lading of the goods. The intervenor in such a ease has a right of pledge on the goods.
    j^PPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      Tlios. J. Semmes for plaintiff and appellant.

      Carleton Hunt for intervenor and appellee.
   The opinion of the court was delivered by

Spencer, J.

Oscar Chopin, of New Orleans, was a commission merchant, doing business in said city. J. N. Clark was a customer, owing Chopin a balance of more than $1000. In May, 1877, Clark advised Chopin, by letter, of his having delivered on the wharfboat at Cairo, 111., 1098-sacks corn, with instructions to ship to him. Clark took from the wharfboat a receipt for 1098 sacks corn, “ to be shipped to Oscar Cho.pin, New Orleans.” This receipt bears date May 13th, 1877.

On the next day, May 14th, the corn was shipped to Oscar Chopin “for account of J. N. Clark,” as shown by the bills lading. •

On same day Clark discounted at the Alexander County Bank his draft at ten days on Chopin for $1350, and delivered to the bank the wharfboat receipt and one of the bills of lading, to secure the same The draft, with the receipt and bill annexed, was forwarded to New Orleans, and protested for non-acceptance on the 19th May, 1877.

On same day, Chopin, who had refused to accept the consignment, sued out an attachment against Clark, and seized the 1098 sacks of corn to pay the balance of account due him.

The Alexander County Bank soon after interveiied, and claimed the corn, or, rather, its proceeds (it having been sold), as pledgee and as holder and possessor, by virtue of the transfer of the receipt and bill of lading.

There was judgment below in favor of intervenor, and plaintiff appeals.

There is no dispute about the facts. The question is, was the corn liable to seizure on 19th May, by the creditors of Clark ? This depends upon the question, “ In whom was legal title and possession vested on that day ?”

We are dispensed from an investigation of the question as to whether the bills of lading for Chopin were forwarded before or after the delivery thereof to thebank; for as Chopin refused the consignment, he never had the possession. Where the consignee rejects the consignment, “ the property remains in the hands of the carrier as the property of the consignor, or any person deriving title from the consignor.” National Bank of Green Bay vs. Dearborn, 115 Mass. p. 219.

In other words, the forwarding of the bills of lading to the consignee vests the possession in him only upon condition that he accept the consignment.

Therefore the title and possession were on the 19th May either in Clark, the consignor, or the bank, as his transferree.

The delivery of the receipt and bill of lading on the 14th May vested the title and possession in the bank, which thereby acquired a pledge upon the com to secure the draft. We understand that there is no dispute as to the sufficiency of a verbal transfer of the receipt and bill to the bank.

The plaintiff’s proposition, therefore, and upon which he rests his case, that the stipulation in the receipt of the wharfboat that the corn received was “ to be shipped to Chopin,” placed the com at the latter’s disposal, is certainly not maintainable when Chopin rejected the consignment. There can be no doubt that if Chopin had accepted the consignment his possession would have related back to the day the bills “were deposited in the mail or given to the carrier for transmission.” Sec. .15, Act 66 of 1874. But he did not accept; he rejected the consignment, and brings this suit as an ordinary creditor, by attachment, after intervenor’s rights had vested.

The court a qua properly held that his attachment was subordinate to the rights of intervenor, and the judgment to that effect is affirmed with costs.


author: White, J.

text:
    No. 7513.
    State vs. Jeff Dennison alias Jeff Denis.
    "Where a prisoner was indicted and tried for murder, and tiie jury found him guilty of manslaughter, he can not, on a new trial obtained by him, be tried again for the crime of murder. The obtention by the accused of a new trial as to the verdict of manslaughter can not b6 considered as a waiver of the right to the plea of autrefois acquit, quoad the chai'ge of murder-
    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.

      H. K. Ogden, Attorney General, for the State.

      B. King Chitter and A. K. Billings, for defendant.
   The opinion of the court was delivered by

White, J.

The defendant was indicted for murder by the grand jury of the parish of Jefferson. The issue made by the indictment was tried within the jurisdiction where the crime was committed — resulting in a mistrial. On application of the State the venue was changed to the parish of Orleans, where the prisoner was found guilty of manslaughter and sentenced to hard labor in the penitentiary. From this verdict and sentence an appeal was prosecuted and the verdict was set aside and the sentence annulled, on the ground that the record did not disclose the arraignment and plea of the prisoner. Opinion Book No.. 49, p. 401.

The accused was again tried, convicted of manslaughter and sentenced to* hard labor, the appeal from this last verdict and sentence being the matter now before us. The record is full of bills of exception, which we will not notice in detail, as our opinion on one of them disposes of the whole case. Before going to trial, or before the impaneling of the trial jury, the defendant filed a plea of autrefois acquit as to the charge of murder, predicated on his previous conviction of may slaughter under the same indictment, which was overruled by the Court on the ground, as stated in the bill of exceptions, “ that the defendant was now in the same position as he was before trial, and that he would now be tried upon said indictment for the crime of murder.” This ruling was erroneous. State vs. Desmond, 5 A. 398; State vs. Chandler, 5 A. 489; State vs. Byrd, 31 A. 422. The doctrine thus upheld by .this court is supported by the greatest weight of authority. Wharton, secs. 550, 563; Bishop, Crim. Law, sec. 849; 30 Wis. 216 ; 42 Indiana, 420 ; 4 California, 376 ; 6 Hum. (Tenn.), 410 ; 54 Ill., 325 ; 11 Iowa, 350.

The fact that the previous verdict of manslaughter was set aside on the ground that the record did not disclose that the prisoner had been arraigned,'does not take the case out of the rule. The effect of the verdict and sentence, as far as the prisoner was concerned, was to acquit him of the charge of murder, and this effect was removed beyond the control of the State, and if the verdict had stood unquestioned by the non-action of the accused, it would have furnished an effectual bar to a further prosecution for murder. This being unquestionably true, the obtention by the accused of a new trial, as to the verdict of manslaughter, can not be considered as a waiver of the right to the plea of autrefois acquit quoad the charge of murder. The waiving,” says Bishop, “ of a constitutional right, implied by the making of an application for a new trial, is not construed to extend beyond the precise thing concerning 'which tfie relief is sought. If, therefore, the verdict find the prisoner * * * * ■ * guilty of manslaughter and not gnilty of murder, and a new trial is granted him, he can not be convicted on the second trial of the matter of which he was acquitted on the first.” Bishop, Criminal Law,'sec. 849.

This being the case, there was error in ruling the prisoner to trial on the charge of murder, and, although he was only convicted of manslaughter, the erroneous ruling may have been seriously to his prejudice. State vs. Tweedy, 11 Iowa, 350 ; 29 Mo. 32.

The verdict ánd sentence are reversed and the case remanded to be tried on the charge of manslaughter.


author: DeBlanc, J.

text:
    No. 7519.
    The State vs. Sandy Martin.
    On tho trial of an accused for carrying a pistol concealed on his person, evidence to show that the pistol belonged to another, that the owner placed it in the hands of the accused merely to got cartridges for it, and that the acc.used owned no pistol, and had never been known to carry one, is not admissible

      k PPEAL from the Sixth Judicial District Court, parish of Tangipahoav Duncan, J. .

      S. JST. Ogden, Attorney General, for the State.

      Jas. H. Muse and M. A. Strickland for defendant.
   The opinion of the court was delivered by,

DeBlanc, J.

Defendant was indicted for having carried concealed, on or about his person, a pistol. He was found guilty, sentenced, and has appealed.

It appears, by a bill of exception, that — on his trial — he attempted to prove that the pistol had been placed in his hands, by the owner, for the sole purpose of procuring cartridges that would fit it, and that he— the accused — had no pistol and had never been Known to' carry one, either concealed or otherwise, before that day.

The district attorney objected to the evidence sought to be elicited, on the ground that, in this case, the sole issue raised by the indictment “was as to the concealment of the weapon, and that no evidence could properly be admitted to negative a criminal intent.”

The couft sustained the objection and correctly refused to admit the evidence.

To constitute the crime charged, it suffices that a dangerous weapon be carried concealed on or about the person, and it matters not that it be so carried with or without any actual intent.

Revised Statutes, Sect. 932.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is affirmed.


text:
    No. 7487.
    State ex rel. J. P. Becker vs. Judge of the Sixth District Court.
    A suspensive appeal lies from an order o£ a lower court refusing to grant a preliminary injunction, and the judge of the court may be compelled by mandamus to grant such an appeal.
    j^PPLICATION for writs of mandamus and prohibition.

      F. Michinard for relator.

      Sam. P. Blanc for respondent.
   The opinion of the court was delivered by

White, J.

The relator asks for writs of prohibition and mandamus direct the allowance of a suspensive appeal from an order refusing to issue a preliminary injunction. He presented a petition asking a preliminary injunction. The Court not feeling satisfied, from the face of the papers, that the prayer should be granted, ordered the defendant to show cause, on a day fixed, why the injunction as prayed for should not issue, and directed that pending the hearing proceedings be stayed. After appearance by the counsel and an argument as to the right to the preliminary writ, the court refused to grant it. The plaintiff applied for a suspensive appeal, and on its being refused our jurisdiction was invoked. The judge of the court below, in his answer says, he expressed his willingness to grant a devolutive appeal, but seems to have refused an appeal suspensive in its nature because of a belief that an appeal of such a character would have continued in force the order by him temporarily granted staying proceedings until the hearing, as to whether or not he would grant the prayed-for injunction; thus practically granting an injunction without bond, for no bond had been required for the temporary order. In other words, he refused the suspensive .appeal, because of what he conceived to be a possible wrong to result from its allowance. In this we think he erred. The appeal was asked from the refusal to grant the preliminary inj unction. Whether the appeal when granted would continue in force a temporary order issued under the circumstances disclosed.by the record, is a matter upon which we need express no opinion, as the question before us is simply as to the right of appeal from an order refusing an injunction, and not what such an appeal may suspend, if allowed.

That an appeal lies from a refusal to grant a preliminary injunction, is no longer an open question. State ex rel. Tricou vs. Lewis, 7 M. 459; 28 A. 902; 29 A. 795. The right to appeal, being therefore undoubted, its nature did not depend on the discretion of the lower judge, but on the appeal having been applied for within the time and in compliance with the forms prescribed by law. The writs of mandamus and prohibition .are made peremptory.


text:
    No. 7649.
    The State vs. Thos. Taylor.
    A parson may bo legally prosecuted and condemned for murder under an indictment found within one year from the death of the deceased. The prescription of one year, applicable to such eases, begins to run from the death of the deceased and not from the infliction of the wound resulting in the death, or the date of the arrest of the accused.
    APPEAL from,the Fourth Judicial District Court, parish of St. James. Duffel, J.

      H. N. Ogden, Attorney General, for the State.

      James Legendre and L. Gaudet for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

On the 2d of March, 1878, the defendant — Thomas Taylor — shot and wounded one Loyd Payne, who — on ■ the 15th of April of that year — died from the effects of the inflicted wound.

Taylor was arrested on the 4th of March, two days after he had •shot and wounded Payne, and — on the 9th of May 1878 — a true bill for murder was found against him. On the 17th of that month, the district attorney discontinued, by a nolle prosequi, the prosecution commenced under the first indictment.

On the 5th of March, 1879 — one year and three days after Payne had been shot and wounded, and less than one year from the date of his death — another indictment was filed against Taylor, and — under that indictment — he was tried, convicted of murder and sentenced. He appealed, the sentence passed upon him was reversed, the case remanded, and — on the new trial — he was found guilty of manslaughter, and condemned to imprisonment in the State Penitentiary, for the term óf twenty years.

He has again appealed, and — to obtain the reversal of the second verdict and sentence — he relies on the fact that one year intervened between the commission of the offence, his arrest, and'the filing of the indictment under which he was tried.

That defence is based on section 986 of the Revised Statutes, which provides:

“ That no person shall be tried or punished for any offense, wilful murder, arson, robbery, forgery and counterfeiting excepted, unless the indictment or presentment for the same shall be found or exhibited within one year next after the offense shall have been made known to a public officer having the power to direct the investigation or prosecution.”

The first warrant under which Taylor was arrested, bears, the date of- the 4th of March 1878, and merely recites that he had shot and wounded Payne; and it was on the 17th of May, more than one month after the death of Payne, that the district attorney made an affidavit charging that he had been killed and murdered by Taylor.

Had defendant been indicted between the 2d of March, when he shot and wounded Payne, and the 15th of April, when Payne died, he •could have been indicted but for an attempt to murder or to kill.

It was on, and from the 15th of April 1878, not before, that a public officer could have been informed that defendant had killed Payne, and it was at and from that date that arose the right to prosecute him for murder or manslaughter. He was reindicted on the 5th of March 1879, within one year from the day on and from which he could have been prosecuted for manslaughter, and his defence is not sustained by either the facts or the law.

In “ State vs. Wallman,” we said: that the death of the victim struck completes the crime of murder, or of manslaughter, but that it alone did not constitute the crime ; that, unless death ensues, the felony is not murder or manslaughter, but another, a lesser offence.

How any part of this opinion can avail defendant, we are at a loss to imagine. Payne was shot and wounded by him on the 2d of March. He died on the 15th of April, and his death completed a crime, which— until it occurred — was not a manslaughter, and which — before that date —could not, as such, have been made known to, investigated, or prosecuted by a public officer.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is affirmed.


text:
    No. 7461.
    St. Charles-Street R. R. Co. vs. Board of Assessors.
    A transposition oí figures from one column of the assessment rolls to another column, made by one of the assessors without the authority of the Board of Assessors, and made after the rolls were closed, is of no effect, and in construing the rolls will be held as not having been done.
    An assessment of the capital stock of a corporation at its par value, when the evidence shows it has a higher-market value, is a valid assessment.
    The law which makes the market value of the evidences of rights to the capital of a corporation, as a criterion of-value, for purposes of taxation, of its capital, or capital stock, is not unconstitutional.
    APPEAL from the Third District Court, parish of Orleans. Monroer J.

      Breaux, Fenner & Hall for plaintiffs and appellants.

      8am. P. Blanc for defendants and appellees.
   The opinion of the court was delivered by

White, J.

The plaintiff railroad averring that it was erroneously assessed for $422,000, brings this mandamus proceeding ^to have the assessment stricken from the rolls. The lower court maintained the assessment. Plaintiff appeals.

Before examining the issue as to validity of the assessment, it became necessary to determine a question of form of assesisment.

When the assessment rolls were exposed, as required! by law, the plaintiff was assessed under the head of “ Capital in business or money at interest for $422,000.” After the figures, which were i\i a column headed as above, was written the word stock. The plaintiiff, while the rolls were exposed, complained of this assessment as thus triado, and applied to have it stricken off; and the petition for mandamta which instituted this cause describes the assessment in like manner. ''When the cause came to be tried it was discovered that the figures $422,000 had been transferred to a column headed, “ Stocks in vessels and corporations.” The proof indubitably establishes that the transposition was made by one of the assessors after the rolls were closed, without the authority or knowledge of the Board of Assessors, and was, of course, therefore in legal contemplation not done at all. Eor we need hardly refer to the terms of the statute making the rolls as closed final. We shall, therefore, treat the assessment as it stood on the closed rolls ; that is, as in the column therein headed, “ Capital in business or money at interest,” and as placed therein as $422,000, with the word stock immediately following these figures. The law as to this assessment is as follows, to be found in section 3, of act no. 9 extra session of 1878 acts of 1878, p. 234:

“ In the first column they shall enter the name of the company liable to taxation on its capital, or otherwise; in the second, the quality and description of the real estate owned or represented by the company, and situated in their parish; in the third column, the actual value estimated as in other cases ; in the fourth column, its capital stock and its value, to be ascertained by the assessor from the market price of the stock, or in any other manner.” * * *

The proof is that the capital stock of the company is six hundred thousand dollars, and that its market value is above its par value. In making the assessment, the assessors took the capital stock at its par value, although it was above par in the market, and deducted from it the property otherwise assessed; thus obtaining the sum complained of. We think that the assessment was valid. The complaint against it is thus stated in the pleadings:

“Your petitioner avers that the original amount of its capital stock as fixed by charter and amendments was $600,000; and that, assuming that all of said stock was taken by subscribers before any of the proceeds of said subscription were invested in its present property, there might have ^been a time when petitioner had a capital of $600,000. Bub your petitioner avers that all of the proceeds of said subscription, viz., all of its capital, has many years since been invested in the property above described as correctly assessed; and that it neither owns nor possesses aipy property beyond the same.” In other words, the proposition is, mjr nominal capital is $600,000, the evidence of it in the hands of my stockholders is worth more than par, therefore equals or rather exceeds $600,000 ; but inasmuch as I have, as the result of that capital, a sum of /tangible property equal to only, say $100,000, my capital stock is only to be considered as worth that sum. Were we to maintain the proposition, we would declare that the value of the evidences of a right, -'exceeded the -value of the right evidenced, a contradiction in terms. We think it an adequate answer to say that the law has made the market value of the evidences* of rights to the capital as the crite-r rion of value of the capital or capital stock of the company, and we see nothing unconstitutional in such a provision.

This case in many respects is assimilated to that of the Gas-Light Company vs. Board of Assessors, and for the above reasons; and those in that case expressed, we think the judgment of the lower court correct ; it is therefore affirmed with costs.


text:
    No. 7622.
    Margaret Sabalot vs. Chas. Populus, Testamentary Executor.
    The fact that a surviving widow had been the concubine of her deceased husband does not impair her claim to the sum allowed by law to widows in necessitous circumstances.
    A marriage otherwise valid is not affected by the fact that no license was obtained.
    Where a couple have lived together as man and wife until the husband’s death, the validity of the marriage can not be impugned on the ground that he was out of his mind when the marriage ceremony was performed.
    The claim of a creditor in virtue of a conventional mortgage executed after the passage of the homestead law, is ’inferior to widow’s claim under that law. The fact that the money lent by the creditor, and secured by the mortgage, was used to pay the taxes on the property, can not affect the priority of the widow’s claim.
    APPEAL from the Fourth District Court, parish of Orleans. Houston, J.

      Chas. Louque for plaintiff and appellant.

      Guy Duplantier for third opponent, appellee.
   The opinion of the court was delivered by

DeBlanc, J.

In 1876, Zepherin Baptiste was married to Josephine M. Carderonne. He died in 1878, and — according to the evidence — his wife did not then possess — in her own right — any property, and — up to trial of this case — was absolutely penniless.

He had — before his marriage — in 1873 and 1875 — borrowed, from Margaret Sabalot, six hundred and fifty dollars, and secured — by a conventional mortgage — the re-imbursement of said sum. The property thus mortgaged was, after his death, sold • to satisfy Mrs. Sabalot’s claim against him, and Mrs. Zepherin Baptiste contends that — out of the proceeds of that sale — she should be allowed, by preference, the amount allowed by law to widows in necessitous circumstances.

Her demand, which was granted by the lower court, is contested by the mortgage creditor, on the grounds:

1: “ That she is not in destitute circumstances.” That fact was-fully established and stands uncontradicted.

2: “That she was the concubine of Baptiste.” She had been his-concubine, but became his wife eighteen months before he died ; and, as-held by ourselves, could not — on account of the irregularity of her ante-nuptial life — be deprived of the bounty which she seeks to obtain.

29 A. 412.

3: “ That the celebration of her marriage with Baptiste was not preceded by the license which the law requires.” Were it so, the law relied upon is merely directory to those who are empowered to celebrate marriages, and its non-observance can not — of itself — affect their validity, when — as in this case — they are otherwise duly solemnized and contracted.

C. C. 104, 111 (113); 6 L. 470 ; 20 A. 97 ; 3 L. 33 ; 2 A. 944 ; 7 A. 253.

4: “ That when the pretended marriage took place, Baptiste was sick, out of his mind, and the ceremony was performed without his knowledge or consent.” He was sick, but got well, and until his death continued to cohabit with Josephine M. Carderonne, freely and without constraint; and — under these circumstances — neither he, if alive, his wife, or any third party, could successfully urge — on this ground — the nullity of their marriage.

C. O. 110 (112); 111 (113).

5: “That plaintiff’s mortgage was given by the deceased before his maniage, and to procure money which he used to pay the taxes due on the hypothecated property.” The homestead law was in force when that mortgage was granted, and it is not alone the debtor’s obligation, but it is also the creditor’s right which must be measured by that law, and we are bound to presume that — -when she made the loan — Mrs. Sabalot knew what risks she was incurring. Whether she did or did not know, her right is inferior in rank to that of the widow.

27 A. 276 ; 29 A. 412 ; 1 R. 86.

It matters not that the borrowed money was used to satisfy taxes levied on the mortgaged property. Mrs. Sabalot was not subrogated to the privilege securing the payment of those taxes; and, though they may have been paid out of the funds borrowed from her, that privilege is now extinguished, and can not be revived, added to the mortgage, or give it a retroactive effect.

In “ Lear vs. Heffner, etc.,” the right to the homestead was disputed on the ground that the creditor’s judgment was for money furnished to pay the price of the property, and this court said: “ The fact that the money loaned was used in paying the instalments of the price, did not make the loan the price. The lender was not the vendee, nor were her rights derived from the vendor, in whose favor the law makes the invoked exception ; and her construction of the law would give to •a debt, which — from its nature — is not secured by any privilege, a superiority over all privileges and mortgages. This is not admissible.”

28 A. 829.

As to the predicted effects of a decree confirming that of the lower court, we can but say that our mission is not to create, but to enforce rights, regardless of what may or may not be the result of the enforcement.

It is — therefore—ordered, adjudged and decreed that the judgment appealed from is affirmed with costs.


author: Manning, O. J.

text:
    No. 7527.
    Henriette Henri vs. Francis Francincues et al.
    This Court is without jurisdiction where the amount involved is less than $500. Where the testimony in the lower court was not reduced to writing, and no statement of facts was agreed on by the counsel of the parties, and the judge who tried the ease could, on being applied to,‘give a vague and general impression only of the testimony, the appeal must be dismissed,
    ^PPEAL from the Sixth District Court, parish of Orleans. Rightor,

      A. & W. Voorhies for plaintiff and appellant.

      Frank D. Chretien and Octave Morel for defendants and appellees.
   On Motion to Dismiss.

The opinion of the court was delivered by

Manning, O. J.

The dismissal of this appeal is moved on two grounds;

1. want of jurisdiction rationematerice.

2. absence of the oral testimony adduced on the trial.

Either is good. The amount involved is less than five hundred dollars. No portion of the oral testimony was taken in writing. The counsel fdr both parties were unable to agree on a statement of facts, and the judge, upon being required to do so, was unable after the lapse of many "weeks after the trial to retain more than a vague and general impression of the testimony. The consequence is that the record does not contain the evidence upon which the judgment is founded, and we are thus unable to review it.

This has often been held to be good ground of dismissal. Boller v. Day, 16 La. 251. Roberts v. Benton, 1 Rob. 100. Clark v. Laidlaw, 4 Rob. 380. Thayer v. Littlefield, 5 Rob. 152.

Appeal dismissed.

On Application for Rehearing.

The counsel for the appellant complains,

1. that we have overlooked arts. 601 — 3 of the Code of Practice.

Those were the articles we were construing.

2. that we have overruled the cases, to which we were referred by him, and cited as “ 6 La. 129, 7 La. 245, and 7 M. 121.”

The first is Bowman v. James, where the testimony was taken down, not by the clerk but by some other person, and without the request of either party to the suit, which seems to have been considered necessary, but notwithstanding the testimony was in the record, the court dismissed the appeal.

In the second case, McDaniell v. Insall, the evidence was not taken down, and the j udge could not remember it, 'and the case was remanded.

The third case, Lynch v. Postlethwaite, has nothing whatever upon the subject.

3. that the cases referred to by us are not in point.

In the first case we referred to, some of the testimony was lost after it had been taken in writing, and the court said, there was nothing to shew that the clerk was required to take down the testimony, and that a certiorari would be useless, and refused the motion of the appellant to remand the case. Boller v. Day, 16 La. 251.

The second of our cited cases decides that when the certificate of the clerk shews that parol testimony, taken on the trial but not reduced to writing, is not to be found in the record, and there is no statement of jacts, the appeal must be dismissed. Roberts v. Benton, 1 Rob. 100.

In the third case, a certiorari had been issued and the return shewed the missing testimony had not been taken down, and a dismissal was the consequence. Clark v. Laidlaw, 4 Rob. 380.

The last case referred to by us rules, that where part of the documentary evidence offered was not in the record and could not be found when the transcript was made, and there is no evidence that it has been discovered since, the appeal must be dismissed. Thayer v. Littlefield, 5 Rob. 152.

So there is one case, McDaniell v. Insall, that supports the appellant, which was evidently overruled by the others, and the same court that decided it had ruled, “ where the record exhibits no statement of facts, and the certificate of the clerk shews that the testimony taken in open court, was not reduced to writing, under these circumstances it is impossible for the appellate court to examine and decide the case on its merits,” and the appeal was dismissed. Thomasson v. Baum, 6 La. 123.

The rehearing is refused.


author: Manning, C. J.

text:
    No. 7610.
    Theodore Laussade vs. Jules Maury et al.
    A party wlio takes a suspensive appeal, and fails to prosecute it, thereby forfeits his right to a devolutive appeal.
    APPEAL from the Second Judicial District Court, parish of Plaque-mines. Pardee, J.

      J. S. & J. T. Whitaker for plaintiff and appellant.

      E. H. Me Caleb for defendants and appellees.
   On Motion to Dismiss.

The opinion of the court was delivered by

Manning, C. J.

Judgment having been rendered against the plaintiff on March 28,1879, he moved for a suspensive appeal, which was granted .returnable on 3d Monday of the following month, and he gave bond therefor on April 7th. This appeal was not prosecuted.

On July 23d following the plaintiff petitioned for a devolutive appeal, which was also granted, and bond being given, this transcript was filed Nov. 3d.

The defendants move to dismiss for failure to prosecute the previous appeal.

The case is identical with Ducourneau v. Levistones, 4 Annual 30, and Collins v, Monticou, 9 Annual, 39. The imperative requirement of the Code of Practice is, that an appeal shall be considered as abandoned if the appellant does not file the transcript seasonably, and he shall not be permitted to renew it afterwards. Code Prac. art. 594.

Appeal dismissed.


text:
    No. 7452.
    George W. Reine vs. Therence Jack. A. Garnier, Third Opponent.
    The holder of a first mortgage note has a right to proceed by motion, as third opponent in an executory proceeding instituted by the holder of another first mortgage note, secured by the same mortgage, to have the proceeds of the sale applied to the payment of his note.
    The dismissal of a rule taken by a mortgage creditor in one court, to distribute the proceeds of the mortgage property ■which had been seized and sold under the process of another court, will not estop him from proceeding in the latter court to effect the distribution, the dismissal of the rule not haying the force of res adjudicata,

    A second mortgage creditor who buys first mortgage notes is thereby legally subrogated.
    The honafi.de transferees of concurrent mortgage notes are entitled to a ratable distribution of the proceeds of the mortgage property, and the fact that one of the transferees obtained his mortgage note after its maturity, does not impair his, right to a ratable distribution.
    J^PPEAL from the Fifth District Court, parish of Orleans. Rogers,,

      Alcée J. Kerr for plaintiff and appellant.

      Chas. Louque for third opponent and appellee.
   The opinion of the court was delivered by

White, J.

On the twenty-fourth of March, 1874, W. E. F. St. Ferol sold to Therence Jack certain real estate in this city; the credit price-being evidenced by four notes of the purchaser.

On the sixteenth November, 1878, proceedings were instituted on two-of the purchaser’s notes by G. W. Reine, and in accordance with the prayer of the petition, which was filed in the Fifth District Court, executory process issued. On the same day like proceedings on the other two notes were commenced in the Fourth District Court at the instance of A. Gamier.

The defendant enjoined the proceedings in the Fourth District Court. Pending the decision of the injunction suit, the property was seized and sold by the sheriff, under the writ issued from the Fifth District Court, under which the first seizure had been made.

Gamier took a rule in the Fourth District Court to distribute tho proceeds of the sale. The rule was excepted to on the ground, among others, of want of jurisdiction rañone materice. The exceptions were maintained and the rule was dismissed. Thereafter, the injunction was dissolved and the suit in which it issued was decided in favor of the defendant therein. Gamier then, by motion, in the Fifth District Court» sought as a third opponent to have the proceeds of the sale applied to the two notes held by him. Reine, the seizing creditor, excepted to the proceeding by motion. , The issue was tried, and the lower court, eon-eluding that the claim of the. seizing creditor was concurrent with that of the third opponent, directed the ratable distribution of the fund. The seizing creditor appealed., and the third opponent answers asking that his priority be recognized. Ve shall notice first the grounds relied on by the appellant for reversing the judgment, and then those urged by the appellees for its amendment. ,

1. The third opposition was correctly taken by motion. C. P. 398

2. The judgment on the rule in the Fifth District Court was not res adjudicata; it simply dismissed the rule .by maintaining the exception ; it was at -best a nonsuit.

3. The claimed payment of the notes of the third opponent has not been shown; on the contrary, we think the proof adequately establishe s that when they were obtained by the third opponent they were bought by him for his account, and that at the time he used his money to acquire the notes he was a second mortgage creditor, and, therefore’ legally subrogated. C, C. 2161.

The fact that the person holding a series of mortgage notes after transferring some of them can not be allowed, in the event of the inadequacy of the proceeds, to compete in the distribution with the person holding the transferred notes, is not the measure of the rights of transferrees, inter sese. Adams vs. Leat, 3 A. 144; Perot vs. Lavasseur, 21 A. 529. Nor do we think the fact that one of the holders acquired after maturity makes his position an exceptional one, as we consider to have been correctly decided in Perot vs. Lavasseur. The equitable or quasi equitable estoppel applied to one who had transferred in Salzman vs. Creditors, 2. R. 243, is in no sense an equity against the note in the hands of a transferree; nor is such transferree subject as the holder of the note to the estoppel, which, as applied in the Salzman and other cases, is not a defense to the note, but simply an estoppel, good against a transferrer when he seeks to compete with his transferree, but not applicable to transferrees between themselves.

Judgment affirmed with costs.


text:
    No. 7091.
    The State vs. George Carroll.
    The conversations of an accused, on trial for murder, after the alleged killing, with a person jointly indicted for the murder, are not admissible in evidence when the indictment did not charge conspiracy.
    This court can not express an opinion as to the weight and nature of testimony in a criminal case; more especially when the testimony is not before it.
    A PPEAL fromtheSixth Judicial District Court, parish of Tangipahoa. Duncan, J.

      James M. Wright, District Attorney, and James H. Muse for the State.

      E. P. & S. D. Ellis for defendant.
   The opinion of the court was delivered by

White, J.

George Carroll was indicted, along with Melford Short and Peter Daggs, for the murder of his wife, Sarah Carroll. Melford Short applied for and obtained a severance, and a nolle prosequi was entered as to Daggs. Carroll was tried and found guilty, and sentenced to suffer the death penalty; he appeals.

The record contains an assignment of several grounds of error, as, also, several bills of exception. We will notice only one of the latter, as the opinion we have formed on it is conclusive.

The State offered the witness, Peter Daggs, in the language of the bill of exceptions, “to prove conversations with Melford Short, and, also, the whereabouts of Melford Short, both after the alleged killing of deceased ; which offering was objected to by counsel for the accused, upon the grounds that Melford Short being an accomplice and jointly indicted, and no conspiracy having been alleged in the indictment, the declaration of said Short made to witness, Daggs, can not be used as evidence against the accused, which objection the court overruled, and permitted the witness to testify.” It is too elementary to require reasoning, that if the indictment did not charge a conspiracy the conversations were not admissible.

It is equally clear that if the conspiracy was charged the declarations of one of the co-conspirators after the accomplishment of the crime for which the conspiracy was formed ought not to have been received as evidence. State vs. Butler Jackson, 29 A. 354.

It is urged on behalf of the State that the materiality of the admitted conversations is not shown by the bill of exceptions. Our jurisdiction extending only to the law; and the bill, as signed by the court, giving no indication of what the conversations were, we can not presume that irrelevant testimony was illegally allowed to go to the jury despite the prisoner’s objections. We can not express an opinion as to the weight or nature of testimony not before us, and not, if it were, within the range of our judicial vision, which is limited by the Constitution.

The verdict and sentence are avoided and reversed, and the case remanded for a new trial.


author: Marr, J.

text:
    No. 7607.
    M. J. McAdam vs. H. N. Soria. John S. Rainey, Intervenor.
    Where an alleged sale is a mere simulation, it may be treated as a nullity, and the thing transferred by the pretended sale may be direetly seized or attached by ■a creditor of the vendor. But where there is a real sale, however fraudulent, the creditor can not seize the property in the possession of the purchaser, but must resort to the revocatory action.
    The failure to object to the admission of evidence bearing on an issue not made by ' the pleadings will not authorize the adjudication of that issue, when the evidence admitted is applicable to the issue made by the pleadings.
    APPEAL from the Fourth District Court, parish of Orleans. Houston, J.

      G. L. Hall for plaintiff and appellee.

      Percy Boberts for intervenor and appellant. .
   The opinion of the court was delivered by

Marr, J.

McAdam. having obtained judgment against Soria, caused execution to issue, and the sheriff seized certain carts and wagons as the property of Soria.

Rainey, by way of intervention and third opposition, claimed to be the owner of these movables, alleging that they had been sold and delivered to him by Soria, for a valuable consideration, before the seizTire. On affidavit and bond he obtained an injunction against further proceedings under the seizure.

McAdam answered by general denial: and he alleged that intervenor was not the true and lawful owner: that the alleged sale to him was fraudulent and simulated, and not real-and made in good faith; ■and that it was contrived between Soria and intervenor to shield and .protect the property of Soria from the pursuit of his creditors.

“ Respondent distinctly denies any real sale, or delivery, or consider•ation as alleged in intervenor’s petition.”

The-judgment of the District Court was in favor of McAdam, dissolving the injunction, and setting aside the sale made by Soria to Rainey, as null and void. The following'extract from the opinion of the •court presents the questions to be considered on the appeal of Rainey from this j udgment:

“ The answer raises the issue of simulation very clearly. It contains some of the allegations necessary to a revocatory action, but does not contain all the averments necessary to such an action. It does not .aver that Soria was insolvent at the date of the sale, that Rainey knew that Soria was insolvent, that the sale, if carried into execution, would have the effect of defrauding the plaintiff, McAdam. Evidence was introduced, however, to show all of these facts, and there was no objection made to the admissibility of such evidence. Effect must be given to evidence received without objection, when no prohibitory law intervenes, and where the action brought resembles the one in which the evidence is applicable as closely as the action en declaration de simulation resembles the revocatory action.
“ The case has been fully tried without objection as a revocatory action, and it would be a vain thing to try the issue over again, in the form of a direct action. Simulation Ms not been shown, but it is clear that the sale to Rainey was in fraud of creditors.”

The settled jurisprudence is, that, where the alleged- sale is a mere simulation, it may be disregarded, treated as a nullity by the creditor of the seller; and he may seize the property under execution, or attach it for the debt of the seller. But where there is a real sale, however fraudulent, the creditor can not seize the property in the possession of the purchaser, but must resort to the revocatory action. The numerous cases in the Reports establishing this doctrine, proceed upon the plain propositions, that a mere simulation is a nullity, and does not transfer the property; while a real sale, perfected by delivery, although voidable for fraud, divests the title of the seller, and vests the ownership and possession in the purchaser.

A simulation which is not fraudulent because it is not prejudicial to the rights of creditors, can not be attacked by them. There is a manifest distinction between a fraudulent simulation, that is, a pretended contract which is in fraud of the rights of creditors, and a fraudulent sale, which is a real contract. The fraudulent simulation, a mere pretense, without reality, need not be attacked by suit; the sale, a reality though fraudulent, must be set aside by judgment, in an action brought for that purpose. See St. Avid vs. Weimprender, 9 Mart. 649 ; Richards vs. Nolan, 3 N. S. 336; Barbarin vs. Saucier, 5 N. S. 361; Peet vs. Morgan, 6 N. S. 139 ; Morton vs. Crosby, 14 La. 426; Cammack vs. Watson, 1 A. 132 ; Emswiler vs. Burham, 6 A. 716 ; Bevens vs. Weill, 30 A. 186.

It is obvious that the Judge of the District Court was of opinion that the case made by the pleadings was one of simulation vel non; and that the case proven was not a simulation. In these conclusions we fully concur with him. The sale to Rainey was perfected by delivery. The carts and wagons were removed from the store of Soria to a distant cotton press, the place of delivery designated by Rainey; and Rainey executed and delivered to Soria two promissory notes, at three and four months, for the price, in accordance with the terms of sale. One of these notes was discounted in bank on the indorsement of Soria -alone ; so that the credit of the maker must have been undoubted.

The judge was of opinion, however, that the want of the allegations in the pleadings requisite to the revocatory action, were supplied by the testimony adduced on the trial, and received without objection. We differ with him in the conclusion that the failure of intervenor to object to the evidence was-a consent to try the case as a revocatory.action ; or that it authorized the judgment appropriate to that action.

As we have already stated, it is only where a simulation is fraudulent, because prejudicial to the rights of creditors, -that it can be attacked by them. The same contract can not be treated as a fraudulent simulation and as a fraudulent sale; because it can not be a mere pretense, and at the same time a reality. The testimony to prove a fraudulent sale would be applicable to an alleged fraudulent simulation : that is, it would be necessary, in the one case and in the other, to prove fraud, since, in either case, fraud is the basis of the creditor’s right to pursue the property. In Weeks vs. Flower, 9 La. 385, proof of fraud, although objected to, was held to be admissible to show that the contract was simulated, and intended to cover the property from the pursuit of the seizing creditor; and in Emswiler vs. Burham, 6 A. 717, where the same objection was made, the court said: “Fraud may always be proved, in support of the allegation of the simulated transfer of property, by those interested to establish the simulation.”

The testimony which would have tended to prove a fraudulent sale, if that had been the issue in this case, was proper and admissible to prove a fraudulent simulation, which actually was the issue. No consent of the intervenor, therefore, to try the case as a revocatory action, can be implied from his failure to object to testimony which was admissible under the pleadings.

The rule, which has been applied to immovables, without exception, is' thus stated: Where a person is in possession under a conveyance not void upon its face, the question of fraud can not be inquired into collaterally, by commencing with a seizure; and the complaining creditor must resort to the revocatory action. See Weeks vs. Flower, 9 La. 385 ; Morton vs. Crosby, 14 La. 426; Kirkland vs. G. L. Bank, 1 A. 300. In the latter case the opinion was expressed, for the first and only time, so we are informed, that this rule is not applicable to movables. It was applied to movables in Peet vs. Morgan, 6 N. S. 139 ; Taylor vs. Whittemore, 2 Rob. 101; Presas vs. Lanata, 11 Rob. 288 ; England vs. Commercial Ins. Co., 16 A. 5; Austin vs. Da Rocha, 23 A. 44; Bass vs. Messick, 30 A. 373 ; and it was fully recognized in Guidry vs. Lyons, 29 A., in which' there was a simulated sale of sugar and molasses, with intent to defraud creditors.

In Danjean vs. Blacketer, 13 A. 595, the pretended sale included movables and immovables; and the property was attached by creditors of the seller. We infer from the opinion of the court that the case was tried as if the issues of a simulation and oí a fraudulent sale had been joined ; and the attachment was maintained.

If this case and that in 1 A. 300, are to be understood, the one as excepting movables from the general rule, the other as authorizing the creditor to attack collaterally, by commencing with a seizure, a real though fraudulent sale, they are in conflict with the jurisprudence, otherwise uniform, of more than half a century; and we can not consent to accept them as authoritative. It may seem to be a vain thing to try the issue of fraud over again, in the form of a revocatory action; but we think the only issue which could have been passed upon in this case was that of simulation, the only issue which the creditor has a right to make when he commences with the seizure of the property. Proof of the sale, and of the delivery, and of the payment of the price, in accordance with the terms of the sale, suffices to show a real contract, however fraudulent; and to compel a resort to the revocatory action. Whatever may be our views of the ultimate rights of the parties, we are constrained to declare that the law of Louisiana does not permit the creditor to disregard possession, under a real title, not void upon its face, and to seize the property as if there had been no change of title, and no corresponding change of possession.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed: that the injunction, granted in limine, on the intervention and third opposition of John S. Rainey, be reinstated, and be made perpetual without prejudice to the right of Michael J. McAdam to pursue the property in question by the revocatory action which is expressly reserved to him; and that the said Michael J. McAdam, appellee, pay the costs in this court and in the District Court.

Rehearing refused.


text:
    No. 7480.
    Jean Augé vs. Michel Variol. T. Lafon, Garnishee.
    Whore an act of pledge which states the amount of the d> bt, and the nature of the thing given in pledge, omits to state that the thing was delivered to the pledgoo, the testimony of the pledgee that he did receive the thing at the time the act oí pledge was executed, given in response to a Question put by a creditor of the pledgor who is attakiug the validity of the pledge, is admissible to prove delivery. It is not conceded that an act of pledge need state that the thing pledged was delivered.
    The fact that athing is held in pledge by one creditor, who is empowered to soli the thing at public or private sale, does not prevent other creditors of the pledgor from seizing the thing in the hands of the plegdee and having it sold, subject to the pledgee’s claim.

      The answer of a garnishee confessing that he had property of the defendant in his hands, hut claiming aright of pledge on it, standingunimpeaehed and uncontradieted, must be received as a whole, It may bo disproved, but can not be arbitrarily divided.
    A judgment which decides the issue formally raised by the pleadings is not premature because the caséis remanded to ascertain the amount due under the judgment.
    j^PPEAL from the Sixth District Court, parish of Orleans. Rigliior, J.

      Albert Voorhies and A. Filié for plaintiff and appellee.

      Carleton Hunt for garnishee and appellant.
   The opinion of the court was delivered by

DeBlanc, J.

In February, 1878, Auge obtained a judgment against Yariol, and is now proceeding against Lafon — as garnishee — to compel him to deliver to the sheriff, as belonging to Yariol and subject to his judgment, certain effects which Lafon acknowledges to be in his possession, but which he claims to hold under an act of pledge. That act — which is written in the French language — stipulates that “whereas Yariol — up to this date — has been unable to pay the one thousand dollars referred to in an instrument under private signature, of the 21st of December, 1874, Lafon consents to receive, as a guarantee for the payment of that sum, in ninety days from this date, a lot of hair, at cost price, equal in value to said sum.”

“ With the privilege to Lafon- -if said sum of one thousand dollars be not paid in the ninety days— to sell said lot of hair, if he thinks proper todo so, without legal process, at public or private sale, and for the price jt may bring.”

Augé’s counsel contend that possession is of the essence of a' contract of pledge, and that in such a contract, and as regards a corporeal movable, the fact of that possession must be made to appear by the written instrument, and that if it does not so appear, the contract is null and void as to third persons.

“ The pawn invests the creditor with the right of causing his debt to be satisfied by privilege and in preference to the other creditors of the debtor, out of the proceeds of the movable, corporeal or incorporeal, which has been thus burdened.”

C. C. 3107 (3124).

“But this privilege shall take place against third parties, only in case the pawn is proved by act,made either in a public form or under private signature ; provided such an act has been recorded in the manner required by law ; provided also that, whatever may be the form of the act, it mentions the amount of the debt, as well as the species or nature of the thing given in pledge.”

C. C. 3158 (3125).

As to the pledge of movable property, it may be made by private writing, accompanied by actual delivery.

C. 0. 3158 (3125).

The act of pledge relied upon by the garnishee, is — in form — that required by the Code. It expressly mentions the amount of the debt, and the nature of the thing given in pledge; but it does not, in so many words, recite that the thing pledged was delivered to the creditor, and that recital — it is contended — was indispensable to the validity of the contract. The Code merely provides, as to the delivery, that it must accompany the private writing.

There is no doubt that the privilege resulting from the pawn can subsist but when the creditor has been actually put and has remained in possession of the thing pledged — but, here, what is the evidence elicited toy one of the interrogatories propounded by Auge to the garnishee? It is that — since the 9th of January, 1875, the lot of hair has been placed in lais hands by Variol, and as a pledge, to secure the payment of a claim on which there now remains due, according to said evidence, a balance of at least five hundred and sixty-five dollars.

The rule taken against Lafon is based on that confession, on his ■acknowledgment that ho has in his possession, and holds in pledge, the merchandise which Augú socks to subject to his judgment; and were it essential — which wc do not concede — Coat the written instrument attest, ing the pledge of a movable, should contain an express mention of its delivery — that confession, elicited by Auge himself, from which springs •and on which alone ho has based his action against the garnishee, and which he cannot either divide or curtail, would have supplied the omitted ■mention.

The words “ I conic,id to receive ” could have been used but in answer to a previous proi ositi.m, and tHoy do express an acceptance of that proposition, which — whatever may have boon the terms employed to convey and accept it — was reduced to writing, and accompanied by an actual delivery. That writing contains every one of the mentions required by the Godo, and evidences a. valid pledge, made in good faith and to secure an honest claim.

Teulet and d’Anvillors hold that, as against third parties, a pledge cannot be established by testimonial proof, alors ineme pue le créancier ■rapporlcrait un commencement de preuve, par ecrit; but — evidently— they did not refer to such an act an that now before us, and which — though ánartiñcially drawn — mentions the amount of the debt, describes the thing given in pledge, and— moreover--empowers the creditor to sell it for ••any price, at public or private sale — nor did they refer, as relates to the ■delivery and possess! m of the thing pledged, to testimonial proof elic_ ited, and judicial admissions made by the very party assailing the validity of the contract.

It is clear — however—that the pledgee’s privilege is not such as to-prevent the other creditors of the pledger from seizing the effect securing the former’s claim. He could have sold at public or private sale, but he did not sell; and — as said by this court — cannot be allowed to hold, to the exclusion and detriment of the others, that which, it may be, is worth more than the money he has lent on it. “ Were it otherwise, the creditor in possession would become, by his own wrong, the proprietor of the pledge — and that in violation of the law which prohibits him from acquiring by such means, and expressly declares that the pledge is given to secure the satisfaction of a debt.”

C. C. 3133 (3100); 3157 (3124); 2 N. S. 22 ; 1 N. S. 417; 13 L. 341.

In answer to one of the interrogatories propounded to him, Lafonsaid that the balance due him by Variol was, then, five hundred and sixty five dollars '; and — on the trial — that it was that amount, and more for interest, and also that Variol’s indebtedness to him was represented by two notes, which were offered in evidence, but have not been copied in the transcript.

Besides, Lafon himself has shown that — by an agreement of the 4th of November, 1876, he was to receive, on account of Variol’s indebtedness, the proceeds of an intended sale of certain fixtures which, at that time, were in the store he had leased to the latter — some of which were sold, and some left to answer for said indebtedness. We are not-informed whether he received the price, or any part of the price of those which were disposed of, and what became of those which were left; and— in as much as the evidence does not establish the precise balance due to Lafon by Variol, this cause must be remanded.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from is amended — and, accordingly, that the merchandise and' wares therein mentioned be delivered to and sold — as the law directs— by the Oivil Sheriff of the parish of Orleans, under the writ issued on Augó’s judgment against Variol; and that, out of the proceeds of the-sale which he is thus directed to make, said sheriff pay to T. Lafon, by. preference — whatever may be found to be due to him — the said Lafon— as pledgee, on the claim secured by the contractentered into between him and Variol, on the 9th January, 1875; and that — after payment of the pledgee’s claim — the balance, if any, be applied to the satisfaction of the aforesaid writ; the costs of the appeal to be paid by Auge, those of the garnishment by Lafon.

'It is lastly ordered that this case be remanded to the lower court, for the purpose of ascertaining the amount due to Lafon, under the contract of pledge.

On Application fob Rehearing.

I.

We did not say, as plaintiff’s counsel seem to believe, that Lafon’s answer to the interrogatory propounded to him, could not have been either entirely or partly disproved; but we did say that standing, as it does, unimpeaehed and uncontradicted, it could not be arbitrarily divided.

In substance, Lafon was asked : do you have, in your possession, any effects belonging to Variol, and he answered: I have, but as a pledge; and that answer — as regards the title to and the possession of .those effects — is the only evidence which was adduced on the trial. It discloses two closely connected facts: that he — Lafon—holds and how he holds, and that answer, which is the very foundation of plaintiff’s rule against the garnishee, could not have been divided, for the sole purpose of unjustly changing the rank of their respective claims.

On this point, we are sustained by an almost endless list of authorities, and particularly by the 356th article of the Code of Practice, which provides that “ the party wishing to avail himself of the confession made in answer to an interrogatory on facts and and articles, must not divide them, and that they must be taken entire.”

2 M. 76 ; 3 N. S. 109 ; 4 L. 159 ; 18 L. 6 ; 4 R. 144; 1 M. 204; 9 M. 36 ; 11 M. 217 ; 9 R. 19,173 ; 6 N. S. 569, 706 ; 1 L. 196 ; 3 A. 648 ; 4 A. 342 ; 15 A. 184, 618, 644, 656 ; 26 A. 251 ; 29 A. 540.

II.

It is persistently contended that — in form — the act of pledge relied upon by Lafon, is irregular. We thought and think otherwise. That act contains every one of the mentions which, according to the provisions of our Code, it should have contained ; and — to adopt the construction insisted upon — we would have to judicially legislate and add another, an important mention to the only ones expressly indicated in theCode.

C. C. 3158 (3125).

III.

There are before us but two creditors ; they are each contesting the rank of the other’s claim; and — in fixing that rank — we have determined an issue raised and presented by the parties themselves, and remanded the cause to ascertain what amount is, or may be due to Lafon, under the contract of pledge. In determining the real, and — • in fact — the only issue raised in and by the pleadings, we did not, as charged, act prematurely.

The rehearing is refused.


text:
    No. 7345.
    R. V. Pickens vs. Z. T. Webster, Sheriff, and Schmidt & Zeigler.
    Movables of a lessee which are subject to the lessor’s lien may be seized and sold' under the execution of a judgment creditor of the lessee, subject to the lessor’s Hen on the proeeods of the sale. A right of pledge does not enable the pledgee to retain, as against creditors who sock by sale to compel the realization and distribution of the proeeods of the thing pledged, 2 N. S. 22; 1 N. S, 417; 13 La. 341; 31 A. 865.
    The growing crop of a lessee is, to him, a movable, and lienee is subject to be seized and sold by a judgment creditor of the lessee. 31-A. 245.
    APPEAL from the Seventeenth Judicial District Court, parish of Red River. Pierson, J.

      L. P>. Watkins and J. II Pierson for plaintiff and appellant.

      J. F.. Pierson for defendants and appellees.
   The opinion of the court was delivered by

White, J.

-The plaintiff leased a plantation to James Crow ; during the exist,onei of the lease Schmidt & Zeigler, judgment creditors of Crow, seized under execution t,he crop and certain other movables on the leased premises. The lessor enjoined: tho'defendant excepted no-cause of action, which being maintained, plaintiff appealed.

The theory upon which the petition for injunction was drawn is, that any seizure of movables stricken with the landlord’s privilege pledge and right of detent;, sii is a violation of the landlord’s legal, rights; and that, oven although such be not the case, a growing crop being an immovable can not bo seized separately from the soil. The correctness of these positions is the matter presented for solution, which may be thus stated :

1. Dees the right of pledge given the lessor by C. C. 2705, and the power of detention accorded by C. C. 3218, render illegal a seizure of movables stricken with them ? Or, in other wórds, does the authority granted by law to the lessor to take the effects themselves and keep them until he is paid prevent creditors from provoking a sale by which the things subject to detention can be converted into money, and the rights of creditors, if any, be exercised on the surplus, above the claim of the lessor?

2. Can a growing crop belonging to a lessee be seized ?

We will consider the questions separately.

First. This question is not a new one in our jurisprudence. Tanner, administrator, vs. Tanner, 6 R. 35; Robb vs. Wagener, 5 A. 112; Aurick vs. Boisseau, 23 A. 605 ; Case, Receiver, vs. Kloppenburg, 27 A. 483. But while our reports are thus replete with cases wherein the matter has been discussed or directly passed on, the adjudications, instead of facilitating the decision of the case now presented, render it more difficult, because of the irreconcilable difference which exists between the opinions expressed.

In Tanner, administrator, vs. Tanner, 6 Rob. 35, although the question of the right of detention does not seem to have been directly presented, the court said: “ The right of detention which is a part of the lessor’s remedy, affords him, to be sure, much greater security, but, like the pledgee and the crelitor, having only a privilege, he must have the-thing subject to his lien sold in the manner provided by law. When this takes place, if a conflict should arise in consequence of adverse claims on the same fund, a distribution of it must be made.”

In Robb vs. Wagener, 5 A. 112, without any reference to the previous case, and without citation of authority, the court, in perpetuating an injunction taken by a lessor, laconically said : “ No sheriff or United States marshal has the right, on an execution in favor of a third person, of taking away property on which the landlord has a privilege for rent and selling the same, pending an injunction taken out by the landlord, without paying the rent. * * When property on which a landlord has a privilege for rent has been seized on execution at the suit of a third person, the landlord has two remedies, either by way of a third opposition or by injunction.”

In the Boisseau case, by an obiter the same doctrine was seemingly recognized ; and, finally, in Case, Receiver, vs. Kloppenburg the foregoing cases were reviewed and the right of the lessor to enjoin pointedly denied; the court holding that the right of detention was no obstacle to a seizure and sale by creditors, in order that the claims of all might be paid by the distribution of the fund. The conclusion was not unanimous, two members of the court dissenting, the majority placing their decree on the inconvenience and incongruity to result from, a different view; the minority admitting both the great,inconvenience and denial of justice flowing from their conclusion, but resting their dissent on the maxim, ita lex scripta est. Thus, we have the right to seize supported by the first case in our reports, where the matter was considered, sustained by the last wherein the subject was elaborately discussed; the one being weakened by the fact that what was said was obiter, the other> in consequence of the division of the court, and because the conclusion was supported only by arguments of inconvenience. On the other hand, the paramount nature of the pledge and detention is sustained by two cases, one obiter the other, seemingly not well considered.

We are, therefore, compelled to approach the examination of the subject if not as res integra, at least as one wherein our conclusions must be predicated upon and justified by the reasons leading to them, without solely relying on the previous opinions expressed by this court. It is obvious on the very threshold of the inquiry that the reasons of inconvenience which were cogently expressed in the Kloppenburg ease present the issue strongly in favor of that construction which recognizes the right to seize. To hold that it does not exist will be a denial of right to the creditor, will be enabling a lessor, whose power of detention is only an accessory, to secure the sum. due and to become due, to shield property largely in excess of the amount of his claim: thus creating in óur system a contract destructive of the rights of others, and, also, subversive of the general principles by which the enforcement of obligations under our law is guaranteed; which are, that the property of a debtor is the common pledge of his creditors; that a right in one creditor to be paid from the proceeds of a certain thing does not prevent courts of justice, at the instance of other creditors having rights to be paid from the same thing, from directing a sale so that the claims of all may be classed, and the proceeds distributed to whom of right. That these inconveniences must necessarily flow from holding that the power of detention excludes the right to seize seems self-evident; for if the right does not exist no other remedy can be invoked by the creditor, although the lessor might detain twenty times the value of his claim.

It was suggested in argument that garnishment of the lessor would be a proper remedy, but, manifestly, such process would be futile if the power does not exist to direct the sale of the property and distribution of the proceeds: nor do we think the argumentum ab inconvenienti lessened by the suggestion that the creditor by paying the lessor could avail himself of the remedy of seizure; non constat, that he could pay, and even could he, the injustice of so compelling is manifest. The weight of these views is augmented by the consideration that no right of the lessor is impaired by a recognition of the right to seize, for the object-of his accessory right of detention is payment, a payment which the seizure and sale accomplishes, with the rank allowed by law. Serious as these reasons may be, they ought not to control our decision if the text of the law be clear and unequivocal to the contrary. Is such the case ? “ The lessor has for the payment of his rent and other obligations of the lease a right of pledge on the movable effects of the • lessee which are found on the leased premises.” C. C. 2705. ■ “ The right which the lessor has over the products of the estate and on the movables which are found on the place leased for his rent is of a higher nature than mere privilege; the latter is only enforced on the price arising from the sale of the movables to which it applies. It does not enable the creditor to take or keep the effects themselves, specially. The lessor, on the contrary, may take the effects themselves, and retain them until he is paid.” C. O. 3218.

Now, it is clear that the right of detention until paid ■ is given as against the lessee, upon whom the obligation to pay rests, but it is far from certain, taking the text alone as a guide, that one who has an interest in the thing detained, and upon whom no duty of paying rests, may not take steps to bring about payment by the realization and attribution of the proceeds. That the expression of the right to detain in favor of the lessor was not intended by the compilers to import it as to creditors can be easily inferred from C. C. 3225, which, while it gives one who has furnished material or incurred expenses for the preservation of a thing the right of detention until payment, also, in express terms declares that the right shall exist as to creditors; thereby, under the rule of inclusio unius est, excluding it in the case of the lessor. However, all doubt as to the nature and extent of the lessor’s right of detention is removed on reading the text of C. C. 3218 by the light of the civil law, of which it forms a part, and from the sources of which the right of detention has been derived.

In the Boman law, the right of the lessor to be paid from the movables of the lessee was recognized at an early day. L. 4 D.: In quibus causis.” Troplong du Nantissement, p. 16, no 12: Pothier, Contrat de Louage, no. 226. “We ordain,” (says Justinian) “ that the movables of the lessee shall be tacitly obliged to the proprietor for the payment of the rent.” Code, In quibus causis pignus vel hypotheca taciti contrahitur.” The pignus of the Boman law imported a right of detention superior to that given the pledgee under our system. L. 40, sec. 2, Digest de pignerat actio. Though such was the case, and the debtor, therefore, could not take back the things stricken without previous payment of all sums due, the like rule did not apply to creditors seeking to enforce their rights. Code, L. 27, no. 1, et seq. Etiam, ob chirographariam. Troplong, in commenting on this distinction, concludes that although the pledgee was obliged to sell the thiDgs stricken with his rights in order to obtain payment, yet courts would not allow the defaulting pledgor to compel the sale, his duty being to pay, yet that such was not the case with creditors of the pledgor upon whom the obligation of payment did not devolve. Du Nantissement, p. 414, no. 453.

In the ancient law of France, in all the provinces, a right similar to the Boman-law pignus, or one designated by Pothier as “ a species of pledge,” was recognized as securing the lessor’s rights. “ Les grains et biens meubles d’un fercnier et locataire sont taisiblement obliges pour les maisons et loyers du propriétaire,” is the language of Loysel, Laporte Pandects Frangaise, vol. 13. p. 189, and authorities by him quoted ; Dumoulin sur Paris, art. 171; Pothier, Contrat de Louage, nos. 228, 229 : Domat (Remy’s edition, vol. 2, p. 39), book 3, tit. 1, sec. 5, no. 12. Under this state of law Domat says :

“Whatever may be the lessor’s privilege on the movables of the essee for what may be due under the lease, he has not the right to prevent the sale of the movables, although such sale may injure the continuation of the lease; he can exercise his privilege on the price of the movables.” Domat, book 3, tit. 1, sec. 5, no. 12; Remy’s edition, vol. 2, p. 39. The same views are attributed by Troplong to Cujas. Troplong du Nantissement, no. 465, p. 426.

Although in the Code Napoleon the quasi pledge of the lessor is not in terms expressed, it was considered by the compilers as inherent in the lease and tacitly resulting from it. Laporte Pandects Frangaise, vol. 15, p. 188, and authorities there cited. The subsequent legislation of France rests on this theory, for the remedy created for the enforcement of the lessor’s claims is designated as “ saisie gagerie,” or pledge seizure. Code de Procedure Civil, art. 819.

Now, under this system, identical with our own, the courts of France at an early day held that the rights of the lessor were no obstacle to a seizure and sale, the result of which would bring about a distribution,. Enregistrement c. Gastry, Cassation, August 14, 1814, Journal du Palais for 1814, p. 366. The writers on the Code Napoleon, or the greater number, teach the same doctrine, resting it on the ground that the right of detention, whether resulting from the implied pledge of the lessor, or from the actual conventional pledge, is a righ.t between the parties, and not, therefore, .efficacious erga omnes. In fact, they view the right of detention as one not given to protect the pledgee from third parties, but from the pledgor. The principle is thus tersely stated by Troplong :

“ The privilege is the right of the creditor as against third persons, adversus creditores exteriores. The right of detention, on the contrary, is an exception between the creditor and debtor.” Troplong du Nantissement, no. 455, et seq.

“Le locateur,” says Zacharige, “n’a du reste en aucun cas le droit de s’opposer a la saisi et a la vente des objets soumis a son privilege lorsquelle sont poursuivies par d’autre créanciers.” Zacharite, vol. p. 110. “Dans le cas special du nantissement mobilier le droit de retention conferé au gagiste est purement personel et n’a d’action ou d’effet que dans les rapports du créancier au debiteur.” Paul Pont’s Petits Contrats, vol. 2, p. 658, no. 1184. He adds: “ Par cela méme qu’il est purement personel, dans l’hypothese special du gage, le droit de retention laisse aux autres créanciers du debiteur la faculté de saisir la chose donnóe en nantissement et de la faire vendre sans teñir compte de la possession du gagiste et sans avoir a le désiutéresser. Le droit de ce dernier * * * se resume tout entier nous venons de le dire dans le privilege qui lui assure un rang preferable sur le prix. * * * Ibid., vol. 2, no. 1185 ; Duranton, vol. 19, p. 131, no. 95.

These opinions and the examination which we have made lead but to one conclusion; which is, that the right of detention is no obstacle to the seizure by a creditor. To hold the contrary, would, as we have-seen, be contrary to the principle which took its being in the Roman law, whence the right of detention came, and has followed it in all its transmutations. The compilers of our Code did not in creating-the right of detention do more than express a right known and applied wherever the wise principles of the civil law prevailed.

The text of our article seems to have been drawn from the Partidas, which, in speaking of the lessor’s rights, uses language almost identical with that used by our Code; saying, “he can retain them as for pledges, until the latter shall pay him the rent.” * * * Part. 5, Law 5, tit. 8. Lopez in his commentary refers this provision to the Roman Law; and Febrero, in his treatise, speaks of the lessor’s right as a simple preference when urged against creditors : Upon them”' (the movables) “ he is preferred to all the creditors of the lessee, of whatever rank ; ” thus indicating the right to distribution as the method by which the preference is to be obtained.

There-is another view which is equally decisive ; the text leaves no doubt that the lessor’s right to detain is the consequence of his implied pledge; now, the detention resulting from the conventional pledge, by C. C. 3161, which is equivalent to that given the lessor, has long since-been held, in accordance with the views we have above expressed, not to enable the pledgee to retain, as against creditors who seek by sale to compel the realization and distribution of the proceeds of the thing-pledged, 2 N. S. 22; 1 N. S. 417 ; 13 La. 341; Ange vs. Variol, just decided. I£ the conventional pledge and actual detention has been so-construed, a fortiori, a like conclusion is necessary where the right of pledge is simply a legal fiction.

We conclude, then, to adhere to the rule as laid down by our predecessors in Case, Receiver, vs. Kloppenburg, and, inconsequence, we do not think the lessor’s right of detention was violated by the seizure.

2. This branch of the case is disposed of by the case of Citizen’s Bank vs. Wiltz, 31 A. 245. The crop of the lessee was his, and although,, abstractly speaking, it may have been an immovable viewed from the-lessee’s point of view, it was a movable, or, at all events, an apparent-immovable mobilized by anticipation.

The judgment is.affirmed with costs.