author: Watkins, J.

text:
    No. 10,286.
    Succession and Community of G. Duhé — Opposition of John P. Moll.
    1. Debts which are privileged on ail movables in general must be paid in the order named in R. O. O. 3191; and those which are privileged on movables and immovables must be paid in tlio order specified in R. C. 0 . 3252.
    2. As there is no mention made of supplies of provision, etc. in the latter, it is to bo presumed that the Legislature intended that they should not bear on immovables.

      3. A succession representative is nob entitled to discount a note payable at a future date, so as to reduce it to cash; the proper way is to compute the interest due at the date of filing the account and add that to the capital.
    4. A mortgage creditor of the father’s succession is not bound by the terms and recitals of a judgment homologating his tutor’s account while living. As to him they are resinter alios acta, and their contents must be proved in some proceeding to which he is a party to bind him.
    5. Ten per cent stipulated in an act of special mortgage as attorneys’fees in case judicial proceedings are necessarily resorted to, is in the nature of damages, and is covered by the ■ mortgage and the mortgagee is entitled to collect same as well as the capital and interest of his debt, all being of equal rank and dignity.
    APPEAL from tlio Twenty-sixth District Court, Parish of St. John the Baptist. Host, J.'

      Jules Heine and H. JS. JMrington for Plaintiffs and Appellants.

      Ij. DePoorter for Defendant and Appellee.
   The opinion of the Court was delivered by

Watkins, J.

Guillaume Duhe was first married to Stephanie Delanneville, who died on the 3d of November, 1876, leaving two minor children, Guillaume and Cecile, surviving issue of their union. He was subsequently married to Lydia Bontiton, who is still living. This second marriage occurred only one year after the death of his first wife, hut no administration of her succession was begun until the 17th of February, 1883, when Duhe caused himself to he appointed and confirmed natural tutor for their two children, caused an inventory of the property of the first community to be taken, and an abstract of same to he recorded in the hook of mortgages. On the 1st of May, 1883, Duhé caused his deceased wife’s share in the property of the community to he adjudicated to him at its appraised value in the inventory, hut omitting therefrom the item of merchandise, which- was valued at $2000. On the 16th of May, 1883, he borrowed from the opponent $1000, for which he gave his promissory note and consented a special mortgage on said property as security, and same was duly recorded. In December, 1884, Duhe filed an account of the affairs of the tutorship, in which he declared himself indebted to his two minors, in the sum of $2818, that being one-half of the appraisement in the in the inventory, less the cost of the proceedings in adjudication. This account was homologated in chambers on the 9th of January, 1885.

On the 21st of April, 1885, Duhe died intestate and insolvent, and his surviving' spouse, Lydia Bontiton, qualified as administratrix of Ms succession, and Mrs. Genevieve Madere was qualified and confirmed dative tutrix to said minors.

In September, 1885, the administratrix caused all the property of the succession to be sold — movable and immovable — to pay debts, and, on the 2nd of December, 1885, filed a final account of the affairs of his succession and the community, distributing- therein the proceeds of sale.

It is to this account that opposition is made by Moll, as a mortgage creditor, and in which he demands a restatement of the account; various items of which he specially opposes. Erom a judgment sustaining-this opposition, the administratrix has appealed, and the tutrix also.

I.

It appears from the record that there were realized from the sale of the movable $548 35, and from the immovables $3230, but she only charged herself with $3148 32 as the proceeds of the latter. This amount is arrived at in the following manner, viz:

The jproces verbal shows $3230, but of this only one-tMrd was for cash, and the remainder was on a credit of six years with interest, and, in oi-der to file a final account, the amount of the note, $2153 33$, was discounted at date of filing the final account, and was reduced to the sum of $2070 65$. This amount added to the proceeds of the personal property produces the sum of $3695 67, with which she charges herself. On the credit side of the account she classes as “ debts privileged' on the movables,” five different items, for baking and furnishing bread, and for meat and supplies of provision furnished within six months of the death of the deceased; for the maintenance of the minors during the administration; and to the surviving- spouse in community, for “bed, bedding and furniture exempt and not subject to be sold to pay debts,” all aggregating $326 60.

These five items are opposed, on the ground, substantially, that they are improperly placed in the first rank as entitled to be paid in preference to funeral charges, law charges, and the expenses óf last illness. He also oijposes them as bearing no lien and privilege on the proceeds of the real estate to the prejudice of his special mortgage.

The Code declares that “ the debts which are privileged on all the movables in general, are those hereinafter enumerated, and are paid in the following order:

“ 1. E uneral charges.
“2. Law charges.
“ 3. Charges of whatever nature, occasioned by the last sickness, etc.’
“4. Tlie wages of servants for tlie year past, etc.
“5. Supplies of provisions to the debtor, or his family, during the last six months, by retail dealers, such as bakers, butchers and grocers, etc.” R. C. C. 3191.

It is evident that neither of those five items are properly placed in the first rank. The first four should be postponed to the fifth rank.

Proceeding then to re-adjust the next twelve items of this account, so as to comport with tlie terms of the article cited, the same must be paid in the following order, viz:

1. Funeral charges :
fa.) E. Badoil, for burial......................$15 00
(b.) F. Rodiesque, opening' tomb............... 8 00
(c.) A. Millet, for coffin....................... 15 00 — $ 38 00
2. Tjuio charges:
(a.) C. Millet, clerk of court.................. 77 20
Less amount due by minors............... 28 60
Balance...............................$48 60
fb.) John Webre, sheriff....................... 50 00 .
fa.) Chas. Lasseique, official paper............. 50 00
f d.) Lydia Huhó, administratrix commission... 60 85
(e.) Future cost............................. 20 00^-$229 45
3. Expenses of last illness :
(a.) Dr. Huard, medical attention.............. 15 00— 15 00
Total amount..................................$282 35
Deducting this amount from proceeds of movables.............$548 35
And there remains.....................................$265 90

Counsel for the opponent concedes that the attorney for the administratrix and tutrix is entitled to this sum for his fees, and it is not denied that such fees are entitled to rank as law charges, and as such entitled to be paid in second rank.

The proceeds of movables being thus absorbed, nothing remains for application to the four items first mentioned, and which belong to the fifth rank in the order of payment; and nothing remains applicable to items numbered 5,16 and 17 on account, the same being for the surviving spouse and for the services and attention of a midwife and physician in in’ocuring the birth of a posthemous child. Hence, all of these demands, in so far as they relate to the distribution of the proceeds of the sale of the movables, may be dispensed from further consideration.

II.

But the administratrix has classed the last twelve items as “debts privileged on movables and immovables and as the first five are placed in the first rank, as entitled to be paid in preference to all others, it may be fairly assumed that a like privilege is claimed for them in the alternative; lienee this proposition comes next in the order of discussion.

The Code declares that the “ privileges which extend alike to movables and immovables, are the folio-wing:

“1. Funeral charges.
“2. Judicial charges.
“ 3. Expenses of last illness,
“4. The wages of servants.
“5. The salaries of secretaries, etc.” R. C. C. 3252.

There is no mention made of “ supplies and provisions ” as in R. C. C. 3191, cited snpra. That this was clearly intended by the Legislature in adopting the Code, will appear from the perusal of the comparative provisions found in R. C. C. 3253, 316C, 3260. Hence, all the items 'under present consideration, except the remainder of attorney’s fees in excess of $265 90, are not entitled to participate in the proceeds of the sale of immovables.

But, if this were not so, items 5, 16 and 17 are not entitled to participate therein because they do not come within the provisions of R. C. C. .3101, or 3252.

Taking into consideration the amount of the inventory, the length of time during which the succession has been under administration, and the work which the attorney for the administratrix has performed, we are disinclined to reduce the amount of $350 claimed and allowed, as attorney’s fees. Deducting therefrom the amount already disbursed to him out of the proceeds of the sale of movables, $265 90, and there is remaining due on that score, $34 10 to bo withdrawn from the proceeds of the sale of immovables.

III.

The accountant charges herself with $3147 32, and claims, as due the minors, the sum of $2070 65|-, with vendor’s lien and mortgage, as well as legal mortgage, thus absorbing the whole of the six-year note, above mentioned as discounted; and the residue of $2818 (as allowed them# on tutor’s account) is allowed with legal mortgage, of first rank, and to be prior in preference to opponent’s special mortgage.

Hence, on this theory, we could have the following statement of accounts, viz:

To amount of proceeds of real estate........................$3,147 32

Cb.

By amount paid balance of attorneys’ fees.......$ 84 10

By balance due minors.......................... 747 34J

By amount awarded minors.....................$2,070 65f — $2,902 10

Balance down..........................................$ 245 22

This, of course, is not the same statement as is furnished in the account, because we have, in the preceding paragraphs, eliminated several items going to malee up the latter; but, it is the same, with those items included'.

The theory of the accountant is that the amount of the debt due the minors is $2818, as shown by the tutor’s homologated account, and which consists of the following items, viz:

1. One-half of the price of adjudication of the community real estate.............................................$1,750 00

2. One-half the price of adjudication of the movables, ditto... 290 00

3.'One-half of the value of a stock of merchandise on hand at their mother’s death.................................... 1,000 00

Total amount........r.................................$3,040 00

Cb.

By one-half total debts..................................... 222 00

Balance due minors.....................................$2,818 00

The opponent denies the correctness of this statement, in several particulars, viz:

1. That there was any such stock of merchandise on hand in 1876, at the death of Stephanie Delannoville, G-. Dnhé’s first wife; and, if there was, there is, in the record, no sufficient proof of its existence.

2. He contends that the adminstratrix is chargeable with the full amount of the proceeds of the sale of the real estate, $3230 instead of $3147 32; and insists that the proper way in which to reach the cash value of the six year’s note of $2,153 33&, is by computing the interest due thereon at 8 per centjper animm from the date thereof, December 2, 1885, to the date of filing the account, December 2, 1888, and by adding the capital and interest thereto. Tins he claims to be $53 6 84, and by adding this to $2153 33&, we have..........................$2,670 17f

To this add the cash payment of............................ 1,(376 66|

And we have the sum of....................................$3,746 84 as the net proceeds of real estate, reduced to cash.

On tliis hypothesis the claim of the minors would be reduced to $1818, and this statement would be produced, viz

To amount of proceeds of the sale of immovables reduced to a cost basis...........................,..................$3,746 84

Cr.

By amount paid minors..........................$1,818 00

By amount balance attorneys’ fees................ 84 10— 1,902 10

Balance down.........................’.................$1,844 74

From tlds balance opponent’s mortgage debt and interest could be entirely paid, and there would remain a surplus to be distributed among ordinary creditors of the succession and community.

We take it to be perfectly clear that the ox>ponent’s second xiroposition is correct, and that the administratrix was without right to discount the six years’ note in order to reduce it to cash, and then segregate it from other accounts, and apjily it to the minor’s claim, notwithstanding it is secured by a first mortgage on the property. There is, in law, no warrant for such a course of proceeding. The only correct course to be pursued is the one suggested by the opponent’s counsel, i. e., to compute the interest on the note from its date, to the date of filing the account, and add it to the prinoix>al, and take it as cash, at that time, and deal with it accordingly.

We see no impropriety in its being treated as cash by the administratrix, in making a settlement with the tutrix, inasmuch as the terms of the sale were recommended by a family meeting, the proceedings of which were duly homologated.

On the trial of the account and opposition, there was no other proof offered of .the existence and the value of the stock of goods and merchandise, placed at $2000, than the inventory of the first community, which was made on the 17th of February, 1883, and the homologated account of the tutorship of Dulie, bearing date January 5, 1885. To the introduction of same, opponent urged several objections :

1. That the records do not furnish proof of the claims of the minor against the tutor.

2. That same are ex parte declarations of G. Duhé, unsupported by proof.

3. That the judgment homologating the tutor’s account was rendered ex parte, and to which he was not a party, and by which Ms rights cannot be affected.

4. That said judgment is, and was null and void, and of no effect, because the record wherein it was rendered, shows that no proof was adduced of the items on said account.

5. That said judgment was and is an absolute nullity on its face, because it was rendered and signed at chambers.

All of these objections are correctly overruled by the judge a quo as going to the effect, and not to the admissibility of the evidence; but, considering them as evidence, said judgment and inventory do not constitute such proof of this item of $2000 as is necessary to establish it, as against a special mortgage creditor of the tutor individually.

In the adjudication to the surviving husband, of their mother’s half interest in the common property, there is no mention made of it; and opponent was not cited and made a party to the final account, which is relied upon as establishing it. Opponent put the administratrix fully on her guard by specially denying and challenging the validity of that item.

Cetainly the judgment of homologation has no binding force or effect, so far as third persons are concerned j and opponent was not a creditor of the minors, but of Dnhé, personally, and was a third person as to that account and judgment.

This item was properly rejected by the judge a quo and the debt of the minors reduced to $1818; but it was correctly held that it was secured by the ranking mortgage. This reduction will enable opponent to realize the amount of his debt with interest and ten per cent attorney’s fees and there will be a surplus remaining. The allowance of the ten per cent attorneys’ fees are objected to by the attorney for the accountant, b3it the same are stipulated for in the act of mortgage and are a constituent part thereof, and secured jiist as much as the capital, or interest of the debt itself. We think that same were incorrectly disalallowed by the judge a quo. 29 Ann. 397, Mullen vs. His Creditors.

Many of the corrections we have suggested were made by the district judge, but not in the same manner and amount as we have done; we will, therefore, enumerate them in order to facilitate the administratrix in the restatement of her account, as it will be necessary that the cause be remanded for that purpose.

The following are the amendments required, viz:

1. That the administratrix should charge herself with the sum of $3230 as the proceeds of the sale of immovables, in lien of $3147 32, as stated in account.

2. That, in order to reduce the six years’ note of $2353 33| to cash, she should charge herself with 8 per cent interest from its date, to the final account, $516 85.

3. Tlie first four items on the account should be relegated from the first to the fifth rank, of such claims as are to be paid from the proceeds of the sale of movable in general.

4. That items 7, 8, 9, 10, 11, 12, 13, 14 and 15 are to be readjusted and classified anew by placing them in the order of payments directed in this opinion, as funeral charges, law charges, and expenses of last illness respectively.

5. Items 16 and 17 are not entitled to participate as priviled, but same may participate as ordinary debts.

. 6. Item 5 does not constitute a charge against either the succession or community.

7. Item 11 is approved; it being for attorney’s fees, it is entitled to rank as a law charge.

Of the whole $265 90 is to be paid from the proceeds of the sale of the movables, and tlie residue of $84 10 to be first withdrawn from the immovables.

8. Tlie amount due the minors must be reduced from $2818 to $1818; but it bears interest at the rate of 5 per cent from the date of Duhé’s death, April 21, 1885.

9. That the 1885 taxes with interest should be paid from the proceeds, with first lien and mortgage thereon.

10. That the 10 per cent stipulated in the act of mortgage, as counsol fees, should be allowed and paid to the opponent, with rank of mortgage.

11. That any surplus there may be remaining shall be distributed ratably among ordinary creditors, after costs are paid.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed, and that the canse be remanded to the court a qua, with instructions to tlie administratrix to restate her account according to law and the views herein expressed; the costs of appeal to be taxed against the succession and the community.


source: Caselaw Access Project

author: Bermudez, C. J. Fenner, J.

license: Public Domain

text:
    No. 10,266.
    Succession of Romain Buissiere, on Petition of Josephine Perraud et al., to Annul the Will, Etc.
    However true it be that, what is done in contravention of a prohibitory law is null and is barren of effect, the law creates an exception, in cases of marriages contracted in good faith, in favor of both spouses, or of one of them and of the issue born of such marriages.
    An error of law, as well as an error of fact, may be pleaded and established to prove such good faith and may secure protection.

      Although a marriage between uncle and niece may have been a nullity, as contracted in violation of a prohibitory law, yet it will produce legal effects, as to one of the spouses and the issue of the marriage, when such spouse acted in good faith.
    Testamentary dispositions by which the testator bequeaths the usufruct of part of his property to one person, wishing it to continue in others after the death of such person, and gives the naked ownership of such part and the full ownership of the remainder of his estate to another, do not constitute a case in which the legatees are charged to preserve for, or to return a thing to, a third person, and do not contain a prohibited substitution and ft del com-missum.

    APPEAL from the CiWl District Court for the Parish of Orleans. King, J.
    F. J). (JhT&tien, F. L. Richardson anil Joseph Lombard for Plaintiffs and Appellees:
    Among* collateral relations marriage is prohibited between uncle and niece. O. C. Art. 95; C. ET. 161 to 162; 34 Ann. 270; 15Ann. 342, 441.
    Art. 118 of the Civil Code has no application, when the good faith is claimed to flow from an error of law. Tgnorantia juris, neviinem excused. C. C. Aarts. 1112 and 1488,1840; Eavard, Yol. 3, p. —; Dalvincourt. professor of the law faculty of Paris, Chap. III. p. 75, and note — p. 114; Arret de la cour de Colmar du 14 juin 1838; Mareadó, Yol. I, p. 522, Ko. II, $ 693, Yol. 1, p. 524, § 694; D’Aguessau, Yol. IY, p. 280 ; Delvincourt, Cours de Code Civil, p. 344 under title of page 75, ETo. 2.
    When the uncle and niece have been told of the prohibition of the law to a marriage between them in this State, and they leave the State and get married in an adjoining State where the same prohibition exists, and immediately return to their State, they acted in fraud of the law of their domicile, and cannot claim the benefits of Art. 118 of the Code, under the X>lea of ignorance of the law. Such a marriage is null in both *States. 4 Ann. 375 ; 12 Ann. 367. « *
    A donation made in view of a future marriage is null if the marriage never takes .place or is declared null. C. O. Art. 2336, 3559, 3565, 3740; 15 Anna 505 ; O. ET. 932; C. C. Art. 1481; 10 B. 143; 2 Ann. 956.
    The issue of a marriage between undo and niece being an incestuous bastard, under the law cannot inherit from them. C. C. 920; C. ET. 762: 18 Ann. 590. Bastard, adulterous or incestuous children, who are prohibited by law from inheriting anything more than mere alimony, cannot take property as legatees. Where children are prohibited by law from receiving property as heirs, they cannot receive as legatees by last will. C. C 1488, 920 ; 18 Ann. 590.
    6r. A. Breaux, A. L. Tissot and James Legendre, contra:

    1. Where the marriage was contracted, according to the forms of law, the presumption is in favor of the good faith of the parties. Gaines vs. Kow Orleans, 6 Wallace, 642; McCaffrey vs. Benson, 40 Ann. 34; Maynier vs. Bonnet et al., Dallos Jur; G6n. 1871, Yerbo Mariago, 5. p. 260; Dalloz Code Annofó, vol. 3. p. 172.
    2. Good faith required by Articles 117. 118, may result from an error of law as well as of fact. Journal du Palais, vol. 1 of 1838. pp. 77, 78; Demolombe, vol. 8, p. 543 — 4 Ed. A. Dunaud. 1846; A collas, Manuel de Droit Civil, vol. 1, p. 199; B. GC.137; G K. 201, 202; Ernoof vs. Scliucharfc, Journal du Palais, vol. 1, p. 78 (1858); Preitranenta vs. Moreau, Dallo/Jur. Gón. Deuxiéme partie, x">. 80 (1849); Delorme vs. Dame Brunet, Dalloz Jur. Gén. 2me partie, p. 218 (1854); Ganduis vs. Pierre Gaudet, Dallo/!, Jut. Gen. 2me partie, pjn 73-4 (I860); Affair Lobon, Dallo». Jiir. Gén. 2mepartió, p. 129 (1880); Doc. vs. Lav. <J. PM DallozJur. Gen. 2me partió, p. 189 (1881) ; Meynier vs. Bonnet, above quoted.
    3. "Where a marriage has been celebrated according to the requirements of the law, it cannot he treated as having never existed; it has legal existence with all its consequences until dissolved by the action in nullity, provided by the law. Acollas, pp. 181, 198, 199; Domolombe, vol. 3, pp. 529, 530.
    4. Whore death has ended the relations assailed, and there is no longer any question hut the interest of the survivor or of the children, courts will more readily validate marriages. Toullier. vol. 1, pp. 35, 608, Ed. Cotillon, Paris.
    5. Collaterals, in this matter derive all their rights from the deceased; ,and occupy no better position than he does; he could not he heard to allege his own violation of the law, to strip his victim and child of the beneficence lie has conferred, to enrich himself. Edwards vs. Edwards, 25 Ann. 201; Eerwinvs. Ins. Co., 35 Ann. 35.
    6. Tlie will in favor of the wife is valid : It is remunerative in terms. It is in favor of one who has acted in good faith. It is not in favor of a concubine; Article 1481 C. C. having no relation to the instant case.
    7. Donations in view of marriage, fall when the marriage does not take place. C. C. 1750. ' Here the marriage did take place; it existed in law and in fact, and must continue to so exist until dissolved, if ever, by suit; the institution of the action provided, attests its existence.
   Tlio opinion of tlie Court was delivered by

Bermudez, C. J.

Kouiain Bnissiére, a Frenchman, died in 1887, leaving a will by which he bequeathed the usufruct of part of his estate to his wife and instituted their daughter his universal legatee.

He left three sisters and a brother. Two of tlie former, joined by the latter, bring this action to annul the will of the deceased, on tlio ground of the nullity of his marriage and the consequent illegitimacy of its offspring, and also, because the will contains a prohibited substitution and fidei commissnm.

II.

The marriage! is charged with nullity, as having been contracted between uncle and niece, in violation of tlio prohibitory law of both the place of their domicile and that of the celebration.

The surviving vafe, individually and as tutrix, is made defendant, and tlie sister, who did not join, is made a party.

The wife contends that her marriage was contracted in good faith, stating the circumstances under which it took place, and that it must produce its civil effects in her favor and in that of her child. The sister admits the vality of the marriage and of the will.

From a judgment in favor of plaintiffs this appeal is taken.

The record discloses the following facts :

Romain Bnissiére was a Frenchman. His sister and her husband, Moungournet, and their daughter, Lucie Adéle, were French citizens.

Romain Buissiere settled years ago iu Louisiana, and, in 1887, returning home from a trip to Prance, brought over with him his niece, Lucie Adéle, and, on his arrival here, placed her in a convent, to receive a suitable education. After she had left the institution, he conceived the idea of marrying her. Tire father and mother of the girl, who were in Prance, were written to, and arrived here to consider and determine the matter. The question to be solved was a grave one: The marriage of an uncle an(l a niece. So much so, that before leaving, the opinion of a French lawyer had been obtained, which was, that such marriage could be legalized in Prance.

After their arrival here, the question was submitted for legal advice, and after it was given, Romain Buissiere and Lucie Adéle Mougournet, who was then a minor, left the State and went to Bay St. Louis, Mississipjñ, where they were the objects of the ceremonies of marriage, in December, 1882. They subsequently returned home, lived publicly and avowedly as husband and wife, had two children, one of whom died, the other surviving the father.

Under the circumstances, it is urged that, as the marriage of an uncle with his niece was prohibited, as well in Louisiana, as in Mississippi, at the date of the celebration, and as the parties knew, constructively and actually of such prohibition, the marriage which was solemnized between them, was contracted in had faith and must be declared barren of all .effect.

It is further urged that, whether they know or not of the prohibition, the marriage is a nullity, because they cannot be permitted to plead ignorance of the law and that wliat is done in violation of a prohibitory law, is null and produces no legal effect, as parties are not allowed, by their conventions, to derogate from the same.

This is no doubt the general rule of law which underlies all well ordained civil governments, as a matter of necessity, for the preservation of public order and good morals; but the rule is not so emphatic and peremtory that exceptions may not exist which do not fall within its ban.

Surely, the law making power had the right to make exceptions, and it has done so, in cases of marriages, which, however made in derogation of prohibitions, are ueverteless permitted to produce civil effects, when contracted in good faith, as well as in favor of the spouses, or of one of them, as of the issue of the marriage.

On the question: Whether the defence of the ignorance of the law can be raised and admitted, in the present controversy, much has been ably said and written by the learned counsel representing the litigants; but it would serve no useful purpose to enter into a discussion of the relative merits of the contention.

The matter, long mooted, lias been thoroughly considered and may now be deemed as finally set at rest, as well by commentators, as by courts of justice.

In France, from which our legislation mostly derives, the plea has been allowed and sustained, whenever the circumstances warranted.

Article 291 of the Napoleon Code, declares, that the marriage, which has been declared null, produces nevertheless civil effects, as well, as concerns the spouses, as the children, when contracted in good faith.

Article 202 of the same Code, provides further, that, if good faith exists only on the part of one of the spouses, the marriage will produce civil effects, in favor only of that spouse and of the children born of such marriage.

Articles 117 and 118 of our Revised Code, have the same import and are substantial, if not identically, the same.

From the views expressed in France by distinguished commentators, as well as from the opinions there announced in some ten case, it appears that it is now a recognized and established privilege, that good faith may result, as well from an error of law, as from an error of fact, and that the parties, contracting marriage, under circumstances Horn which such errors arise, are entitled to the relief allowed by law. Marcadé on Art. 204; Duvergier Toullier 1, No. 651, note a; Demolombe 3, 357, 543, et seg.; Aubry & Ran 5, p. 46, § 460; Zaehari* 1,125 ; Laurent 2, n. 504; Accollas 1, pp. 109, 181; Paris 9 Mess an XIII, pp, 38,1, 77; 18 Dee. 1837; 1938 p. 1, 78; Limoges 25 Aout 1841, p. 54, 1. 315; 5 Jan. 1842, also 1840; Aix, 11 Mars 1858, p. 58, 1082, 1860, 1871, 1880, and authorities in defendants’ brief.

There is no reason why this humane exposition of the law should be questioned, and still less, why we should run counter it.

We therefore adhere to it and hold that the principle ought to be applied to the instant case, and, therefore that, if circumstances exist which were susceptible of inducing the belief in the wife, that her marriage with her uncle, could be valid, her good faith must protect her and her innocent offspring.

It is important to bear in mind, that Romain Buissiére and Lucie Adele Mongournet vere French Citizens, and that as such, they had some knowledge of the laws of their country on the subject of marriages between uncle and niece.

The law of France (Art. 103, N. C.), in this respect, is like our, prohibitory ; but the following Article, 164, which is not found in our Code, declares that, nevertheless, it is allowed to the Emperor (President of the Republic) to raise, for grave reasons, prohibitions announced aghinst marriages between the uncle and the niece, the aunt and the nephew.

The evidence in this case allows that Remain Buissiere consulted a veteran lawyer who once occupied an important position on the, Bench, touching the validity of his contemplated marriage with liis niece, and that he was informed that although in Louisiana the marriage was for-hidden, it would be valid in certain States; that Buissiere approached another attorney, once a justice of the peace, and at the time a clerk of court, and also a notary public,'who drew up the contract which was afterward signed.

Strenuous efforts wore made to show that Miss Mougoumet, who was a minor at the time, accompanied him in every instance, and that she must have overheard the views expressed to Buissiere on the subject ; hut, whatever the testimony be in this regard, it has not, contradicted as it is by her own sworn declarations, left in our minds the impression that she acquired, in consequence, the knowledge that in Louisiana the prohibition was absolute. So that, it can be well inferred that while she may have known and even knew of the existence of the prohibition, she remained under the honest conviction that in France power was lodged somewhere to raise the impediment, or that it could be removed in some manner, and had been done away with.

To all aqipoarances, when she left with Buissibre for Bay St. Louis, she did so under the belief that Mississippi was one of the States in which, as the counsellor had said, a marriage between uncle and niece could be legally contracted, and that such marriage could be, as had been stated by the French Lawyer, legalized in France.

In a case like the instant one, in which it appears that a young girl, still a minor, brought over from her native land by her uncle, assisted by the advice and presence of her father and mother, who had crossed the ocean for the purpose of attending her marriage, pressed by that uncle for her hand, which she, in good faith, consented to give him, was married, occupied and enjoyed publicly during his life, the status of Ms legitimate wife, becoming the mother of two children,' — a case in which, after all this had ocoured, the uncle dies, in somewhat relatively independent circumstances, leaving a will in favor of his wife and child and excluding the qilaintiffs, as much as he could have done without naming them from any participation in his estate, we think with Toullier, that the status of both the widowed mother and the orphan daughter, such as was made by the departed husband and father, ought not to he disturbed and that they should reap all the civil effects which a marriage, however questionable its validity may have been, secures to one of the spouses and to the issue, when contracted in-good faith. Yol. 1, p. 304, par. 608.

We must not be understood as holding that the marriage was valid, for surely it was one which could have been annulled, as contravening a prohibitory law.

What we decide, is simply that however much it could have been annulled, it is one of those marriages which though null, produces nevertheless civil effects because contracted in .good faith, although that good faith may lack of legal foundation.

II.

We think that the charge that the will contains a prohibited substitution and fulei commissum, is not tenable, for the reason that it does not appear that the legatee of the usufruct and the universal legatee were charged to preserve for or to return a thing to a third person. R. C. C. 1520, 1522.

The .legacy of the usufruct to the wife is, as to its quantum, graduated by circumstances to extend over one-half, or one-fourth, of the testator’s property, and the universal legacy covered the entire remaining property, absolute ownership and enjoyment of one-half and' the naked ownership of the other half, susceptible of increase by enjoyment of half thereof or one-fourth of the whole, in certain contingencies, unnecessary to mention.

The fact that the testator has expressed the desire that after the death of his wife , certain nephews and nieces of his, or their descendants, should enjoy the like usufruct is of no moment. If unwarranted by law, it must simply he reputed as unwritten (R. C. C. 1519), and in any event, it does not impair the validity of the disposition of usufruct in favor of the widow. 31 Ann. 456.

The views above expressed relieve us from the necessity of passing on the plea of estoppel set up by the minor and tutrix and on other matters urged by the plaintiffs which constitute none but corrolaries to their fundamental propositions.

We, therefore, conclude that the widow and child are entitled to the relief sought by them.

It is, therefore, ordered and adjudged that the judgment of the lower court be reversed, and it is now ordered and decreed that there he judgment in favor of the defendants, rejecting plaintiffs’ demand with costs in both courts.

Concurring Opinion.

Fenner, J.

I accept the conclusion announced in the French jurisprudence and not contradicted by any contrary adjudication in this State that the good faith which gives civil effects to marriages otherwise null, may, in certain eases, arise from error of law as well as from error of fact.

In such case, however, the error of law must qiossess two qualities :

1. It must be actual.

2. It must be excusable.

Great caution and strictness should be exercised in admitting such pretensions.

Yet, in the language of Toullier, the question of good faith vel non, in such a case, presents always a question of fact, for the solution of which the judge must consider the particular circumstances of each case and especially the condition of the spouses.”

In appreciating the facts of this case the majority of the court concludes that the .wife was actually ignorant of the law and that her ignorance was excusable. I do not find that the learned judge a quo announced a different conclusion on the facts. His opinion ivas based exclusively on the principle that error of law caunot be the basis of good faith.

While the evidence is not altogether satisfactory to my mind, yet, considering the finding of my brethren; the minority and sex of the party; her ignorance of the English language; her nativity in France where, such marriages may be legalized; her recent arrival in this country; her seclusion in a convent; her subordination to the man who married her who was greatly her senior, and. to whose charge and protection she liad been confided; the approval, advice and participation given hy her parents to the marriage; and the fact that the marriage no longer exists and no public interests are involved conflicting with those of the mother and her innocent offspring, I find strong circumstances going- to make the case peculiar and exceptional and robbing it of serious danger as a precedent.

I feel, therefore, that I can concur without opening the door for tlie ready admission of such defenses and with the full warning that I shall not recognize them in future cases except when attended by such peculiar circumstances or others equally strong.


author: Bermudez, C. J.

text:
    No. 10,310.
    Nicholas Moniotte vs. F. O. Lieux, Administrator, et als.
    An original transaction purporting, on tlie face of tlie papery and tlie appearance of matters, to be a salo á réméré, wherein it is stipulated that in case of failuro of redemption within the time specified, the ownership of the property shall vest irrevocably in the purchaser, passes the fee absolutely to the latter, where the property is not thus redeemed and where, after the delay has expired, the purcliasor, to the knowledge of ’the vendor who remains silent, treats the property as his, borrowing money and securing the loan by mortgage upon it.
    For having exorcised rights vested in him by the very terms of the contract, the purchaser cannot be held liable in damages.
    APPEAL from the Fifteenth District Court, Parish of Point Coupee. Semple, J.'
    O. O. & A. Provosty and Thomas Serves for Plaintiff and Appellant:
    1. Redeemable sales unaccompanied by delivery,, and the considerations of which are inadequate, will be treated by courts, without sufficient evidence to the contrary, as contracts for which the thing nominally stands as security, and nothing else. Howe vs. Powell, 40 Ann. 307 • Collins vs. Pollerín, 5 Ann. 99.
    2. The contemporaneous lease by the vendee to the vendor is especially noteworthy and decisive. Journal du Palais, Rep. vo. Contrat Pignoratif; Proplong on Sales, Vol. 2, p. 329.
    3. The prescription applicable to actions for damages ex contractu is ten years. Louquo, p. 565; Hennen, p. 1217.
    4. Default is unnecessary where the violation of the contract is active, and where performance has become impossible by the act of the defendant. Laloire vs. "Wiltx, 29 Ann. 329; Marcliessoau vs. Cliaffe, 4 Ann. 24.
    5. The measure of the damages is the sum of the expenses necessarily incurred by plaintiff to put things in the situation in which they would have been if defendant had fulfilled his contract. Ibid.

      L. B. Claiborne for Defendant and Appellee.
   The opinion of the Court was delivered hy

Bermudez, C. J.

The plaintiff appeals from a judgment rejecting his claim in damages against the sxxccession of P. Deplaignes, for injury stated to have been sustained in conseqxxenceof a breach of contract by the latter.

The record discloses the following facts:

In 1877, plaintiff executed in favor of Deplaignes an act purporting to be a sale á remoré of certain real estate, for $2251 30 cash, reserving to himself the right of redemption within a delay expiring on January 1,1883, and, in default of sxxch exemption, vesting ownership in Deplaignes.

On the same day, Deplaignes leased the property to Moniotte for $180 per annum, during said term, on certain conditions.

Both acts were dxdy recorded on the day of thcár execution.

The clay allowed for redemption went by, the debt remaining unpaid.

On tlie 12tli of December, 1885, Deplaignes, treating the property as Lis, borrowed from the police jury of tlie parish of Pointe Coupeo, $3900, payable at his death only, provided the conventional eight percent interest agreed on was regularly paid annually, securing payment by mortgage, on tlie property, the act being duly recorded shortly after its date.

On Deplaignes’ failure to comply with his obligation to pay, the police jury seized the property which was adjudicated to it for $4565, at the sheriff’s sale, on February 4th, 1888, some three months after Deplaignes’ death.

On the 6th of August, following, considering that his title to the property had been thus divested and had passed to the police jury, Moniotte purchased the property from that body, for the price of $5565, which represented the claim sued on, against Deplaignes, in capital, interest and costs. The purchase price was settled as follows: $1000 cash, and the rest secured by privilege and mortgage, payable at Moniotte’s death, provided he would pay regularly, each year, the conventional eight per cent interest stipulated in the act.

Moniotte, who was in possession of the property prior to the sale « réméré to Deplaignes, continued so, as tenant at least, up to the institution of tills suit.

Claiming to have paid $2031 in part satisfaction of the $2251 30, before the expiration of the period of redemption, Moniotte now contends that by the wrongful acts of Deplaignes in mortgaging the property and in suffering it to be seized and sold and purchased by the police jury, he has been damaged to the full amount of the difference between his debt to Deplaignes and the sum at which he reacquired the property, viz: some $2156.

The defences set up are: the pleas of prescription of one year, want of tender, and next, the general issue, followed by a special denial of any partial payments, the assertion of former ownership and the justification of consequent acts and doings, as owner.

The pleas of prescription and want of tender were ovemúéd and, on the merits, the court gave, in favor of defendants, the judgment now brought up for review.

It cannot be claimed that the original transaction between Moniotte and Deplaignes does not bear on its face all the characteristics essential to constitute a valid sale « réméré.

The intent of the parties; the price paid cash; the possession delivered to the purchaser; the stipulation of the right of redemption; tlie irrevocable forfeiture of all title to the ownership of the property in case of failure to redeem it within the prescribed delay, the overt acts of Deplaignes, after the term of redemption had passed away; the debt remaining unpaid, even if part payments have been made; his treating the property as his Own, his mortgaging it to secure a loan made to him; the knowledge of those acts of Deplaignes by the plaintiff, his silence and inaction, and his purchasing the property from the police jury; the utter failure of the plaintiff to show the reverse; all tend to show that the original transaction was what it purported to be, a sale d réméré, and that the action brought by Moniotte after Deplaignes’ death, at a time when liis testimony could not be given, Ms mouth being sealed in death, is one which courts of justice will frown upon with great suspicion and discountenance by all legal means.

The inference is irresistible that Deplaignes acquired title to the ownership of the property, and that he had the right to represent himself as he did, as the owner of it, to borrow money and to secure tlie loan by mortgage on it.

Having exercised those rights expressly conferred by the contract, ho could not, neither can Ms succession or Ms heirs, he held responsible for any injury which tlie plaintiff may have in consequence sustained. Such, if it exist, could only he damnum ábsqe injuria.

This case does not come within the scope of the ruling in Howe vs. Powell, 40 Ann. 307, relied upon by the plaintiff; hut rather fully within the purview of those in Levy vs. Ward, 32 Ann. 784; Jackson vs. Lemle, 35 Ann. 856; Lawler vs. Cosgrove, 39 Ann. 488, and Davis vs. Citizens’ Bank, Ib. 523, an application of which justifies the conclusion reached in the present controversy,

It becomes unnecessary, from this standpoint, to consider the pleas of prescription and want of tender, set up by defendants.

Judgment affirmed.


author: Poché, J.

text:
    No. 10,326.
    First National Bank of Natchez vs. A. Moss and Co. et al.
    Tlie writ of attachment is a harsh remedy, and it will not be sustained unless the rules of law which authorize it have been strictly complied with.
    The remedy by attachment does not embrace cases of prospective conditional and contingent liability; it must bo confined to oases where, in addition to the other requisite circumstances, there is an existing debt, although the period of its payment has not arrived. Therefore an attachment will not he maintained against the property of tlie drawer of a hill of exchange, before its maturity, although the acceptor has been attached and has become insolvent before the attachment, for until maturity the drawer is not the uncoudi tional debtor of tlie holder.

      TIig acceptance of tlie drawee is prima facie proof that tlie drawer had the right to draw.
    An attachment must stand or fall, according to the state of facts existing at tlie date of its issuing, and cannot be cured by a subsequent event.
    The state of facts must be tested by the pleadings as made at the date of the attachment, when the motion is to dissolve on the face of the papers.
    Defective pleadings cannot be cured by amendments, after issue joined, which contain substantial averments not set forth in original pleadings.
    APPEAL from tlie Ninth District Court, Parish of Tensas. Young, J.

      8. B. Elam and Luee & Lemle for Plaintiff and Apx>ellant:
    1. An affidavit, in which the creditor swears to the existence of the debt sued on, and which alleges the Codal grounds, is sufficient. C. P. 237 to 243.
    2. An averment that defendant is indebted upon a bill alleges possession and ownership in plaintiff. 18 Ann. 554.
    3. Whore attachment issues under C. P, 237, the character of indebtedness, which the affidavit alleges to exist, can he set up in the original and amended petitions.
    4. Where the drawer of a bill has no funds in the hands of a drawee, to meet the payment of the hill, the drawer is unconditionally hound, and notice of dishonor is not necessary. 1 N. S. 215; 3 N. S. 147; 12 La. 386; 12 R. 231; 14 Ann. 489 ; 11 Ann. 269 ; 22 Ann. 484; 25 Ann. 562; Daniels onnegotiable instruments, Yol. 2, Sec. 1082, p. 125; 2 How 483.
    5. Where the drawer and drawee firms have common members, presentment and notice of dishonor not necessary. Daniels on negotiable instruments, Yol. 2, Sec. 1086; Randolph on commercial paper, Yol. 3, Sec. 1203.
    6. Tho issues discussed have not been raised and should not be considered.
    7. When plaintiff alleges that the drawer had no funds to meet the hill, an excuse for non-presentment, etc., is made out, and if there are qualifying circumstances, which would give the drawer the right to exact payment of the bill, such as being accommodation, drawer, keeping open account and the like; such are defences which must ho urged hy the drawer, as they are peculiarly within his knowledge. Daniels, Yol. 2, Sec. 1084.

      O. J. & J- 8. Boatner for Defendants and Appellees:
    The petition and affidavit on which an attachment is issued must, in order to maintain the writ, contain positive and unambiguous allegations.* Nothing must be left to inference. 11 Ann. 622.
    The Code of Practice, in prescribing the conditions on which an attachment may issue, requires something more than the prima facie allegations, which suffice for the petition itself and a judgment thereon. Ib.
    An attachment will not lie against the drawer of a hill of exchange in favor either of the acceptor or endorser. Neither is his creditor, in the sense of the law. The right of tho creditor must he absolute, and not dependent upon any conditions. C. P. 242; Reed vs. Wair, 2 Ann. 1498; 3 H. 510; 13 Ann. 526; 9 Ann. 526; 14 L. 64; 5 R. 449.
    No attachment will lie against the drawer of an unmatured hill of exchange. His obligation to pay is not proved hy conditions. The debt for which an attachment lies must he absolute. 10 Ann. 498.
    When the drawer of a hill of exchange has funds in the hands of the drawee, or reasonable ground to expect acceptance and payment, he is entitled to tho rights of a drawer in good faith, and his liability is purely contingent. 9 La. 128; 19 La. 370; 12 R. 132; 3 Ann. 385; 11 Ann. 269; 12 Ann. 585; 22 Ann. 84; 26 Ann. 154, 472-689-

      Tho acceptance of a bill of exchange is, in the absence of any allegation of fraud or collusion, conclusive of the drawer’s right to draw. Darnels’ Negotiable Instruments; Parsons’ Notes and Bills, Vol. I, Soc. 3, and cases there cited.
   Tlie opinion of tlie Court was delivered by

Poché, J.

Tlie plaintiff corporation is appellant from a judgment whicli dissolved, on motion and on the face of the papers, a writ of attachment sued out by the bank against the defendants on September 23, 1887, on a claim of $7350.

The writ was obtained on an affidavit made by the bank’s agent, followed by a petition filed on the next day.

The averment in the affidavit, on which the crucial point of discussion in the present appeal hinges, is in the following words:

“Affiant deposes that he is the attorney and agent of said corporation ; deposes further, that the commercial firms of Chas. Moss & Co., and Hartwig Moss & Co., and Chas. Moss, Hartwig Moss and William, Moss, are justly and legally indebted to the said First National Bank of Natchez, of which Joseph F. Foard is president, in the sum of $7350, with legal interest from due, on drafts drawn by Hartwig Moss & Company, on Chas. Moss & Co., and accepted by Chas. Moss & Co.”

In the petition which was filed on the next day, in which plaintiff prayed for a moneyed judgment against, both firms as well as against the individual members thereof, the board made the following additional averments which have a direct bearing on the issue to be herein discussed : that the amount of the claim sued on was represented by three drafts maturing respectively on October 30, 1887, on November 18th, on November 26th, and on December 4th of the same year, and further, “ that Hartwig Moss & Co., are composed of Hartwig Moss, Charles Moss, and William Moss, and said Charles Moss & Co., are composed of Chas. Moss and Hartwig Moss, and that-said Chas. Moss and Hartwig Moss, in both firms are the same persons. Plaintiff avers further that said Chas. Moss & Co. have failed and been attached in St. Louis, Missouri, and will not meet and pay said drafts and acceptances. Plaintiff further avers that said Hartwig Moss & Co. have not now and did not, at time of drawing said drafts have any funds with Charles Moss & Co. to meet the payments of said drafts.”

The motion to dissolve was grounded as follows:

1. Insufficiency of the affidavit.

2. Prematurity of the suit.

Under the views which we have taken of the controversy, we shall confine the discussion to the second ground of the motion.

Conceding-’, therefore, but only for the sake of the argument, that the affidavit and the averments of the petition filed on the succeeding day, taken together, were sufficient to show the fact, warmly contested by the defendants, that the bank was properly alleged to have been, at that time, the holder and owner of the drafts sued on, we have reached the conclusion that, at the time of suing out its attachment, the bank was not the absolute unconditional creditor of the defendants, within the requirements of the law on attachments as expounded in jurisprudence-

It appears from the pleadings above referred to, that neither of the drafts had yet reached maturity, and that no demand had been made on the drawee or acceptor, and that of course no notice of the dishonor of the drafts could possibly have been given to the drawers. Now it is an elementary principle in commercial law that the drawer of a bill of exchange or draft is not unconditionally a debtor on account of the same, Ms status as a debtor depending upon a subsequent event, which is the failure of the drawee to pay the same, followed by proper notice thereof.

We note the exception to the general rule, invoked by plaintiff’s counsel and which is to the effect that the drawer is not protected by that rule if it appears that he had no funds in the hands of the drawee, and that he had no right to draw on him.

But the averments in their pleadings include but one of the elements . which characterized the exception.

They aver that the drawing firm liad no funds in the hands of the accepting firm, but they go no further; they do not allege that the drawer had no right to draw.

The inference which they seek to derive from the allegation of the want of funds, that the drawer had no right to draw, is met by two other and distinct allegations in their petition, which are to the effect that the drafts were accepted by the drawees, and that the two members of the St. Louis firm, the acceptors, were also members of the Louisiana .firm, the- drawees.

The irresistible inference is that firms thus composed would have the right to draw on each other, independently of the decisive fact that the drafts had been accepted.

The only other averment relied on by plaintiff' to hold the defendants as unconditionally liable on the drafts at the date of attachment, is the allegation that the acceptors had failed and had been attached in St. Louis, and that they would not pay said acceptances.

But under the rules adopted in jurisprudence, that circumstance is not,' of itself, sufficient to fix before maturity the liability of the drawer who might make special arrangements for the payment of his bill at the time and place, that it would become due and exigible. Denegre vs. Milne, 10 Ann. 328.

Before the maturity and the dishonor of the draft the acceptor is the only unconditional debtor of the holder of the instrument, and in such a case the drawer occupies the position of an endorser of a promissory note, whose liability on the note is fixed, by the failure of the maker to meet its payment, after demand and proper notice. It could not be even contended that in case of the failure or insolvency of the maker the endorser would, ipso facto, become unconditionally liable on the instrument. 5 Rob. 449, Harrod vs. Burgess.

It has been held in jurisprudence that the accommodation acceptor of a draft could not proceed by attachment against the drawer, who had in the meantime failed, before the maturity of the draft and before paying and taking it up, because the acceptor was himself the debtor of the holder, and not yet the creditor of the drawer. Read vs. Wan, 2 Ann. 498; Shannon vs. Laughorn, 9 Ann. 526; Price et al vs. Risley et al, 13 Ann. 526; Johnson vs. Flanagan et al, 26 Ann. 689.

It takes no argument to show that the circumstances under which an acceptor, who is absolutely bound on the paper to the holder, will be denied the right of pro tooting liimself in advance of payment by attaching the drawer’s property,- will operate as a more efficient bar against a similar action by the holder against the drawer who is only a conditional debtor on account of the draft, his indebtedness being dependent on the failure of the acceptor to meet j>ayinent.

In Denegre vs. Milne, 10 Ann. 324, the holder of a draft, in which acceptance had been waived, proceeded by attaclmient against the drawers, before maturity, on the ground that the latter had failed and were insolvent, and the writ of attachment was on motion dissolved by the court, on the ground that “the remedy by attachment does not embrace cases of prospective conditional and .contingent liability; it must be confined to cases where, in addition to the other requisite circumstances, there is an existing debt, although the period of its payment has not yet arrived. Therefore, an attachment will not be maintained against the property of the drawer of a bill of exchange until its maturity, although he may have suspended payment before the attachment, for until maturity the drawer is not the unconditional debtor of the holder.”

In that case the court laid down the following wise and eniphathic doctrine:

“ An attachment must stand or fall, according to the state of facts, existing at the' date- of its' issuing, and. cannot be cured by a subsequent event.” Quoting Blanchard vs. Grousset, 1 Ann. 98; Black vs. Zachary, 3 Howard, 510.

. Conceding the legal foundation and the correctness of that rule, plaintiff’s counsel object, however, to the attempt of their opponents to test the condition of things at the date of the attachment exclusively by their affidavit and by their petition filed the next day, to the exclusion of an amended petition filed by them on January the 19th, 1888, and they press that petition to our consideration on this appeal.

The motion to dissolve was filed on the 8th of November, 1887, and plaintiff’s right to its attachment was therefore at issue when the amended petition was filed. It thence follows that it cannot be considered, if it contains any substantial averment on the issue of the attachment which was not to be found in the original petition.

By reference to the hitter it will appear that neither of the drafts had matured, at the date of attachment or of the filing of the petition, while in the amended petition it is distinctly alleged that all four of the drafts had matured, that they had been presented for payment, and that they had been duly protested for non-payment. The state of things thus disclosed is as widely different from the position contained in the original pleadings as light differs from darkness. Tn other words, everything which, under law and jurisprudence, was lacking to justify the proceedings by attachment in the. original pleadings, is supplied, by the lapse of time and by tlie happening of subsequent events, through the proposed amended petition. Of course the defendants reserved a bill from the ruling of the judge in allowing this supplemental petition. From the very nature of things the events and proceedings therein described, would not have a retroactive effect, so as to make it appear, on the 23rd of September, that maturities to occur in October, November and December following, had already taken place. To argue against the allowance of such amended pleadings under the restricted issue to be herein discussed is, after all, labor to prove a self-evident proposition. Hart vs. Bowie, 34 Ann. 325.

Had the state of facts, disclosed in the amended petition, been accomplished facts, and properly averred at the time that the attachment issued, of course the present controversy would never have arisen.

This oversight, or confusion of dates and ideas, lias been the cause of the fallacy of plaintiff’s whole contention, and hence counsel have quoted an immense array of authorities in support of the position which they claim under the state of facts recited in their amended petition. The authorities which they quote have been- carefully considered by us, and the same are fully endorsed on the proposition which'they purport to elucidate. They will doubtless be of great avail to plaintiff on the merits of the case, and to therein fix and determine the liability of drawers as debtors on their dishonored drafts.

But they have no bearing on the sole issue with which we are now concerned.

The writ of attachment is a harsh remedy, and it can be sustained only when issued in strict compliance with the rules of law which authorize it.

The essential condition is that the defendant must be the unconditional debtor of the seizing party under a certain definite indebtedness, although the period of its payment has not yet arrived. That alone was the issue presented by the pleadings, and finding that such an indebtedness did not exist, we must conclude that' the attachment lacked all legal foundation, and that it was properly set aside.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,323.
    Rufus F. Learned vs. George L. Walton.
    In executory process, tlio fact that the order of the judge endorsed on the petition and authentic evidence attached thereto, was made heforo -the documents wore tiled in court, affords no ground for relief, in absence of proof of injury. Other points referred to and overruled.
    APPEAL from the Ninth District Court, Parish of Concordia. Young, J.

      Steele efi Lagg for Plaintiff and Appellee.

      Luce (0 Lemle for Defendant and Appelllant.
   The opinion of the Court was delivered by

Fenner, J.

In this appeal from an order of seizure and sale, the principal point of complaint seems to he that the judge granted and signed the order at chambers on the petition and accompanying documents before the latter were filed in court. The authority of the judge to act in chambers is not questioned, but it is claimed that he could not validly so act until after the judicial proceeding had been inaugurated by filing the petition in court.

We find no merit in the point. The order of seizure and sale is one granted in limine and at the very threshhold of the executory proceeding. The order of the judge has no effect until'the filing in court; the filing .of the petition in court is inoperative until the order is made. The order and the filing may be simultaneous acts ; their concurrence is essential to support any further proceeding; but when they do concur, the order of time in which each act was respectively done is matter of no moment.

The judge, when such a petition is presented to him and he grants his order thereon, well knows that, it is to be filed and that, until filed, his action is nugatory. He authorizes such filing, and, when filed, his order is to be treated as done nunc pro tunc, as held in the case of a confession of judgment endorsed on a petition before, filing. Kelly vs. Lyons, 40 Ann. —.

In the country, where, the district judge presides in different parishes, and where his residence may be remote from the parish seat, it is often convenient, and lias certainly been a common practice, to get tlie order before filing tlie papers. This practice, has been several times noticed by tliis Court without objection. Nash vs. Johnson, 9 Rob. 11; Bloom vs. Martin, 20 Ann. 256.

Tlie, last case just cited, also answers the objection that the appellant is without means of knowing what evidence, the judge had before him as a basis for his order. Tlie Court said: “ It is to be presumed, without proof to the contrary, that the judge granted the order on proper evidence.” But in the instant case, the petition, on which the order is endorsed, describes (lie notes and act of mortgage, and recites that they are “ attached ” to the petition. The clerk certifies that they were handed to him with the petition, and they are duly spread upon the record. The fact that they were attached to the petition doubtless explains tlie absence of separate endorsement of filing on the act and notes when the papers were handed together to the clerk.

The discrepancy of ninety-five cents between the act of mortgage and the notes secured thereby, in a sum of $8100, is too insignificant to escape tlie rule de mimimis, etc.

The complaint urged on this appeal, unaccompanied by the slightest suggestion of injury, have, perhaps, received more attention than they deserved.

Judgment affirmed.


text:
    No. 10,324.
    Hanson Kelly, Receiver, vs. David Devall.
    Wlieu two or more parties enter into a commutative contract containing mutual stipulations and covenants, neither one W relieva'liio, through his fault, or misfortune, at the expense. inconvenience of the otliei’s. The contract is a law between them and oitlier may sue for a specific performance or the reparation of the loss occasioned by the non-performance of the othors.
    APPEAL from the Twenty-third District Court, Parish of West Baton Rouge. Talbot, J.

      Head cO Goodale and Henry Denis for Plaintiff and Appellee.

      Kent an & Laycoelc for Defendant and Appellant:
    I.
    PRESCRIPTION.
    This action is on an account; the contract of pledge securing the account is an auxiliary obligation which is extinguished with the account by the prescription of three years. R. C. 0., 3138.
    A mitten agreement for the loan of money entered into before the loan is actually made, will not arrest the prescription of three years. Campbell vs. Hicholson, 3 Ann. 458.
    A written acknowledgement is nocessary to interrupt proscription on all accounts, whether open or stated. Act Ho. 78, of 3888, p. 86.
    A conditional promise will not interrupt prescription — Pearson & Howe vs. Harper, 11 Ann. 184 — nor will an acknowledgment, coupled with the claim that the debt has been compensated — H. O. & O. R. Co. vs. Harper, 11 Ann. 212 — nor will an oiler of compromise, though accompanied by acknowledgment of the justness of the debt. Lackey vs. McMurdo, 9 Ann. 15.
    Where written acknowledgement is required, complete proof in writing must bo made out; separate writings cannot bo connected by parol. Lehman, Abraham & Co. vs. Makior, 34 Ann. 320.
    I.
    OH THE MERITS.
    A factor makes himself responsible to his planter client i'or damages by his failuro to make advances in accordance with his contract. Taylor vs. Prestidgo, Graham &Co., 33 Ann. 41.
    The measure of damages is the loss sustained and profits missed, limited to those within the contemplation of the parties, or reasonably supposed to have been, at the time of the contract. R. C. C. 1934.
    Deficiency in yield of crops is a xu'oper element of damage-in a suit of this character. Lobdell vs. Parker, 3 L. 332; Goodloe vs. Rogers, 9 Ann. 273; Same vs. Same, 10 Ann. 631: Rugely vs. Goodloe, 7 Ann. 294.
    Hothing hut a “fortuitous event” (act of God) or irresistible force can excuse the violation of a contract and exempt the dobtor from damages therefor. R. C. C. 1934,§§ 2 and 3.
    III.
    DEFAULT.
    Hot nocessary when there is an active breach of contract. R. O. (J. 1932.
    Contract, by its very nature, can he executed only within a limited time which has ox* • pired. R. C. O. 1933, § 1; 1 Pqtlüer, p- 176, Ho. 347 ; 6 Xoullior, p. 259, Ho. 251.

      Tlio obligor refuses to comply "with, his contract, except on material modification. Arthur & Co. vs. Dickson, 10 Ann. 116; 2ST. O. & K. 11. Co. vs. Gan alb & Co., 18 L. 513.
    Obligor acknowledges his inability to comply. 9 11. 377.
    Debtor is put in default by demand in writing or verbal requisitions in the presence of two witnesses. It. O. 0.1911, § 2.
   Tlic. opinion of the. Court was delivered by

Watkins, J.

As receiver of the late firm of Conger & Kelly, commission merchants and cotton factors, the plaintiff demands of the defendant $2758 90, with eight per cent per annum interest from the 24th of May, 1886, as the. balance due for certain alleged advances made by said firm in 1884, in pursuance of a contract between them and the defendant, bearing date May 23d, 1884, and as will appear from tlieir annexed account.

To this demand defendant tenders a plea of three years’ prescription, and answers that said firm entered into a written agreement in which “they bound themselves to advance respondent money and supplies necessary to enable him to make a crop of sugar and molasses on Ms plantation * * during the. year 1884, in the sum of $6000; and that said sum was necessary to enable the respondent to make, said crop.”

He represents that, on the faith of these representations he plac,ed in cultivation ninety acres of fertile, land in cane, and made all needful and proper arrangements to cultivate the same, “That, long before said Conger & Kelly bad advanced said sum, viz: on the 20th of June, 1884, the said Conger & Kelly, without cause, and in flagrant violation of their said contract, refused to continue said advances, or otherwise comply with their said contract, after having been put in default by demand made on them according' to law. That, by reason of the failure of said Conger & Kelly to comply with their said contract he suffered great loss and damage,” because of his being left without the means to comply with the contracts he had made with his plantation laborers, and to pay tlieir wages; and, on that account, they abandoned his plantation and he was unable to cultivate said crop properly.

He further answers “ that, with proper cultivation, said ninety acres of laud would have yielded at least one hogshead of sugar, or eleven hundred pounds in weight, and one and one-half barrels of molasses per acre, during the year;” and that said sugar and molasses were worth, at market price, the sum of $80; but that, owing to the “ want of proper cultivation,” from the aforesaid cause, said land only yielded one-third of a hogshead of sugar and one-half barrel of molasses; and on account “ of said deficiency in yield,” lie suffered a loss of sixty hogsheads of sugar and ninety barrels of molasses, less the proportionate amount of cost in bearing off the same; which he estimates at $25 per hogshead, thus leaving a net loss of $3300, for which he claims judgment in reconvention witli legal interest from January 1st, 1885.

On these issues the parties went to trial, and the court rendered a judgment overruling defendant’s i>lea of perscription, rejecting his re-conventional demand for damages, and awarding plaintiff judgment for $2300 32, with eight per cent interest from the 24th of May, 1884, from which the defendant prosecutes this appeal.

It appeas from the contract which was entered into on the 23d of May, 1884, that said firm agreed “ to make advances to the said David Duvall during the year 1884, of sums of money and supplies, acceptances or endorsements, not to exceed $6000, for furnishing him * * with the supplies necessary to the said plantation, for the payment of the wages, and for the support of the laborers, and other persons employed thereon, and for procuring what is requisite and proper for carrying on the cultivation of said plantation, the production, gathering, taking off, and preservation of the crops grown thereon, and putting the same in a condition for market.” In consideration of this agreement, the defendant promised to pay commissions and eight per cent per annum interest, and to ship to Conger & Kelly the crop of sugar and molasses produced; and he pledged said crop as a security therefor.

An inspection of the account current sued on discloses that the same was opened on the 18th of January, 1884, and that, at the date the contract was entered into, defendant was indebted to them in the sum of $1788 23, and it was increased to the sum of $2306 32, on the 20th of June, following, which is the date at which the account was closed. The correctness of this account is admitted by the defendant, while denying his liability therein. On the 24th of May, 1884, the defendant executed his promissory note for $1755 70 to the order of Conger & Kelly, and made it payable on the 12th of December after date. It contains a stipulation that it was secured by a pledge of the growing crop of sugar on the Orange Grove plantation. This note was evidently intended to liquidate the account just described as existing at that date, the amount of Which, was covered by, and included in the contract of the day previous. In such case the open and running account kept between the parties represents the primary obligation; or is prima facie evidence of it, and the contract and note aré only intended for its liquidation, to a limited extent, and for the purpose of negotiation. In this case, the note and contract refer to the same crop and account, and both are secured by the same pledge.

Under this state of facts, the note and the contract, while in the possession of the xilaintiff, were collateral for the account, and had the effect of susxrending x>rescription thereon, until they were themselves extinguished by xirescrlption; and to neither is the prescription, of three years apjilicablc.

It is quite evident that this note ivas competent evidence, and that the judge a quo properly admitted it. Considering it in connection with other facts, it is equally evident that the pica of prescription was correctly overruled, and judgment rendered for plaintiff on his account.

The'remaining question to consider is the defendant’s reconventional demand.

The record discloses the following facts, viz: On the 6th of June, 1884, Conger & Kelly declined to make further cash advances to the defendant, or to honor sight .drafts for any amount.

On this account defendant was unable to pay the day laborers whom he had employed to work the specified ninety acres of stubble-cane, for cash, and, on that account, they left him, and he was unable to supply their places wdth others. To serve as a temporary purpose defendant borrowed $500 from a friend, but that amount was wholly insufficient to enable him to tide over this embarressment. On account of this loss of hoe-liands in the middle of the season, the weeds and tie-vines grew so rank and tall, that they could not be subdued by the force at Ms command, and they caused the cane to dry up, to a great extent. In consequence of which he sustained a, loss of one-fourth to one-half a hogshead per acre. This is given as the opinion, not only of the defendant, but of his overseer and those of his neighbors, who are practical sugar planters, and speak advisedly.

There was no countervailing evidence adduced by the plaintiff.

We think it is quite clear that defendant has made out a case entitling him to damages.

The proof satisfactorily shows that he sustained a loss, through the immediate effect of the causes assigned, to the extent of one-fourth of a hogshead per acre, on the particular ninety acres specified, or, 22-J hogsheads; and that the market value of same, in 1884, was $80 approximately, hence, the value of same was $1800.

But there must be deducted therefrom, the proportionate cost of bearing off and manufacturing the 22a- hogsheads, which may be fairly placed at $25 per hogshead, or $562 50.

The excuse offered for the x>hiintiff’s declination and peremptory refusal to perform the plain provisions of Ms contract, and to discontinue cash advances to the defendant, within less than one month from its date, and in the middle of June, is a weak, and wholly insufficient one, indeed.

Equity and fair-dealing require that the contract should he rigidly enforced, the defendant having been without fault or blame.

It is therefore, ordered and decreed that the judgment appealed from be amended by awarding the defendant on his reconventional demand the sum of $1800, with five per cent per annum interest from date of judicial demand, subject to a credit of $562 50,. and that, as thus amended, the same be affirmed — the plaintiff and appellee paying costs of appeal.


author: McEnery, J.

text:
    No. 10,329.
    Harrison & Harrison vs. H. Moss & Co., et als. Simon Feucht vs. H. Moss & Co., et als. H. Morris & Son vs. H. Moss & Co., et als.
    CONSORIDATEK.
    When several creditors sequester and attach their debtor’s property, and the amount in each case is less than two thousand dollars, and the cases are consolidated for the convenience . of trial, this Court has no jurisdiction, although the several domands aggregate an amount over two thousand dollars.
    APPEALS from the Ninth District Court, Parish of Tensas. Young, J.

      8. Ti. JQhm, for Plaintiffs and Appellees.

      Snyder & Tullís and O. J. Boatner for Defendants and Appellants.
   On Motion to Dismiss Appear.

The opinion of the Court was delivered by

McEnery, J.

Numerous creditors attached and sequestrated tlie merchandise of the defendants, claiming privileges therein on the property attached and sequestrated for the amount sued for in each case.

The above cases, on motion, were consolidated for convenience of trial.

The evidence in each case was introduced separately and a separate judgment was rendered in each ease.

The appellants, who also were seizing creditors, were made defendants in the other suits by other seizing creditors.

The plaintiffs in the consolidated suits obtained an order for the separate appraisement and sale of the merchandise seized in each suit, and it was so appraised and sold. It was agreed between the parties that the goods seized under the several writs of attachment and sequestration should be sold under an order obtained in one of the suits and that the proceeds of the sale should remain in the hands of the sheriff, “ subject to the claims, rights and liens of the various alleged creditors,” and that all parties having obtained orders for separate appraisements and sale of merchandise should be considered as having obtained orders in the case. The merchandise realized over ten thousand dollars and the apx>ellants have claims amounting to over twelve thousand dollars.

The contest was over the amount of the proceeds realized from the sale of the goods seized in each suit.

The matter in dispute in each case is less than two thousand dollars.

It is clear that by consolidating the suits for the purpose of trial, the aggregate amount being over two thousand dollars, can not give this court jurisdiction.

It is therefore ordered that the appeal be dismissed at appellants’ costs.


text:
    No. 10,315.
    R. S. Charles, Treasurer, Etc., vs. Board of Liquidation of the State of Louisiana.
    A State warrant, recognised, as having been issued, for a valid, consideration, such as public/ work, for which the State is liable, and the legality of which is not contested by the State, iu entited to he funded under Act 11 of 1875.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Buckner, J.

      Gircmlt Farrar for Plaintiff and Appellant.

      Walter H. Boyers, Attorney General, for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff sues in his official capacity, to have a State warrant, dated April 22d, 1872, No. 1901, payable to H. S. Me-Comb and duly endorsed by him, for $6430 43, recognized as a valid-and binding obligation of tlie State, issued in strict conformity to lhw and not in violation of tlie Constitution of tlie State, or of tlie United States, and for a valid consideration, and as'such funded by the defendant board.

After issue joined by the State, the case was tried contradictorily with the Attorney General, and, on satisfactory evidence, it was decided in favor of plaintiff. ' •

Under the requirements of the Act of 1875, No. 11, Sec. 1, which forbids the board from issuing State bonds, in lieu of outstanding questioned or questionable obligations of the State, previously issued, unless the legality or validity of the same has been first declared by the Supreme Court of the State, by final decree — the plaintiff appeals from the judgment in his favor.

The evidence shows, that the warrant was issued on deposit with the' State Auditor, of a certificate of the chief of the State Engineers for work done on a public levee and paid for by the railroad company of which McComb was at the time president.

Provision was made for the payment of such warrants by Act 22 of 1872, and registry of it is to be found in the books of the State Auditor, as a State obligation. > ■

The State has in no way, impugned the integrity and binding effect of the warrant in question either below, or here. • An inspection of the record does not enable us to discover any grounded objection to the funding asked. ...

Considering- that the wartant was issued for a valid. consideration; that the State is liable for it and that the plaintiff is entitled to have it funded, we so declare. V. 33 Ann. 124; 37 Ann. 176; 40 Ann. 379.

Judgment affirmed.


text:
    No. 10,296.
    The State ex rel. Louis Schwartz et al vs. F. A. Monroe, Judge, et als.

      Mandamus does not lie to compel the granting of a suspensivo appeal from an order dissolving an injunction on l)ond, when the commission of the acts enjoined will not cause an irreparable injury.
    y^PPLICATION for Mandamus.

      David Todd and W. B. Biehardson for the Relators.

      B, G. Mlioil and Ghas. G. Ogden for the Resqiondents.
   The opinion of the Court was delivered by

Bermudez, C. J.

The relators seek a vumdmvm to compel the district judge to grant them a suspensive appeal from an order dissolving on bond, an injunction obtained by them, and to command the representatives of a corporation to exclude from participation in its proceedings, certain parties who claim to have elected delegates thereto.

In justification of his conduct, the district judge returns, that the case is one not appealable to this court, and were it so, tiro dissolution on bond of the injunction obtained by the relators can cause them no irreparable injury.

The other parties join in this defense.

The circumstances of this case are simply those which follow.

The relators., as members of the Young America Steam Fire Company No. 3, claim to have been duly elected delegates to the Firemen’s Charitable Association of the Sixth District of New Orleans, of which they are also members.

They aver that certain parties pretended to have been elected to the same functions and were about to enter said Firemen’s Charitable Association, when they obtained an injunction from the Civil District Court for the Parish of Orleans, forbidding the representatives of the association from receiving said delegates, and the latter from participating, as members of the association.

The defendants in the injunction suit filed an exception of no cause of action and a rule to dissolve the injunction, on bond.

Both matters came up for trial simultaneously, and, after hearing, the district judge considering that the petition did not set forth matters which justified the injunction, sustained the exception, dismissing the suit, and, acting, on the motion, allowed the dissolution, , on bond.

The relators then applied for a suspensive appeal from the judgment sustaining the exception, which was allowed, and from the decree dissolving the injunction on bond, which was declined.

In order to ascertain whether the relators are entitled to the srrspensive ax>peal asked, it is necessary to determine, whether the commission of the acts enjoined can cause them an irreparable injury; for if it will work such wrong, the dissolution was improper and should produce no effect.

What were the acts prohibited"! They were: That the representatives of the Charitable Association should not receive the protended delegates, and that the latter should not participate as members of the association.

The consequence following the writ was that the representatives of the association and the delegates remained in the condition in which they stood when the injunction issued, namely: The representatives not receiving the delegates and the delegates not participating.

There is nothing to show that, had not the injunction issued, the representatives of the association would have received the delegates and that these would have participated as members.

It may well be presumed, however, that, if said delegates had not established rights to a representation of their company in said association, the representatives of the latter would not recognize them, and that the delegates would not participate as members of the organization.

Let it be supposed, however, that the suit had been brought without a prayer for an injunction, or that the injunction had been dissolved on bond, and thus neutralized — what of it?

The delegates, whose election is contested, from the worst standpoint, would have been recognized and admitted to participate as members of the association.

Suppose next, that by final judgment, the courts were to decide that the relators, and not the others, are entitled, by due election, to represent the company in the association — what then ?

Then, tile judgment would have to be executed and the delegates unduly seated would have to vacate their seats and make room for the relators.

Now, what injury would the relators, in the meantime, have sustained ?

Surely, the relators would have been kept out of the exercise of their functions as delegates from their company. The relators do not show, and we cannot perceive how this mere abstention from such exercise is capable of producing any injury whatever.

On a final judgment of the court, entitling them to the rights which they claim, matters and things could easily bo restored to the condition in which they stood before, and when, the writ issued.

This view of the ease dispenses us with considering other questions raised and which it .is not necessary to solve.

It is, therefore, ordered and decreed that the restraining order made in limine be rescinded and that the application for a mandamus be refused with costs.


text:
    No. 10,316.
    H. R. Gogreve vs. Mrs. M. Dehon and Husband. Chas. A. Bruslé, Syndic, vs. Mrs. M. Dehon and Husband.
    CONSOLIDATED.
    Tlio notion of the syndic of an insolvent estate, for the purpose of subjecting to the debtor’s debts, immovable property purchased in the name of his wife, because it is in reality community property, is not a revocatory action, as it seeks not to annul any act or contract of the debtor. It presents simply a question of ownership, which is not to he tested under the rules applicable to the revocatory action.
    It is a settled rule of law in the jurisprudence of this State, that all property purchased during marriage, by either of the spouses, is presumed to fall into the community, and the burden of proof is on the wife who claims sucli property as hers separately to show affirmatively the existence of all the features"and elements required by law to shield her claim from the application of the general rule.
    APPEAL from the Twenty-third District Court, Parish of Iberville. Talbot, J.

      Alex. Hebert for Plaintiff and Appellee.

      GJias. O. Lauve for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

Auguste Dehon having surrendered his property to his creditors under the insolvent laws of the State, and having omitted to include therein a piece of immovable property which stands on record as the separate property of his wife, these two suits were brought by one of the creditors and by the syndic of the insolvént to have it judicially declared that said immovable property truly belonged to the com- • munity, and that as such it be declared liable for sale under the insolvency proceedings for the husband’s debts.

The suits were brought directly against the wife and against the husband, and the substantial ground of action is that the purchase, although made in the name of the wife alone, enured to the benefit of the community which has always existed between tlie spouses ; the petition containing the averment that the declaration in the act of sale, to the effect that the purchase was made by the Wife in her separate right with her paraphernal funds of which she had retained the administration, was untrue and fraudulent.

The defendants filed separate exceptions, to be hereinafter noticed, which were overruled. They then filed a general denial, and they are appellants from a judgment in favor of plaintiff.

Exceptions.

The wife’s exception was: no cause of action against.her on the ground that she was not responsible for her husband’s debts, and that the purchase had been affected long before the rights of the creditors had accrued.

The husband’s exception was substantially the want of right on the part of the plaintiff to resort to the revocatory action against Mm, as lie had sold no property or performed no act on which such an action could be based, and because he was not a debtor of his present creditors at the time that the purchase was made by his wife.

On examination, all the. grounds of exception urged by both defendants appear to be predicated on the erroneous assumption that the record presents a case of revocatory action.

Under our Code, the sole object of the revocatory action is to annul or to avoid the effect of the contract of a debtor fraudulently contrived to injure his creditors, and the .result of the judgment is to avoid the contract as to its effects on the complaining creditors. C. C. 1968, 1970,1977.

Now, as aptly suggested by the defendant husband in his exception, there is no complaint here as to any contract executed by him, nor is there any demand to avoid the effect flowing from any of his acts. Pearson vs. Pearson, 15 Ann. 119.

There is now no demand to annul the purchase made by the wife, but the intention is merely to regulate its legal effect. The theory of the action is that the property having been purchased during the marriage under the regime of the community, the purchase enured to the benefit of said community, whether made in the name of one or both of the spouses, “because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase.” C. C. Art. 2402.

The practical right claimed under the pleadings is to subject all the property of the insolvent debtor to the rights of his creditors, as their common pledge.

And it is clear that for the purposes of the remedy thus sought to be enforced, it is absolutely immaterial to consider whether the property, alleged to belong to the insolvent, was acquired before or since he contracted the debts which are represented by the creditors or by the syn-die. The simple question to be judicially solved is whether the property which stands in the separate name of the wife, is or not in reality the property of the community, and as such liable for the debts of the community. Such an inquiry is clearly within the scope of the rights of the creditors. Judson vs. Connolly, 5 Ann. 400; Sullice vs. Gradenigo, 15 Ann. 582.

The present suit is therefore not a revocatory action and the issues herein are not affected by the rules which govern that action. We, therefore, conclude that defendant’s exceptions have no force and that they were properly overruled.

This brings ns to the consideration of the case

On the Merits.

It is in proof, and in fact conceded, that the defendants were married under the regime of the community.

It thence follows, as a presumption of law, under the textual provisions of our Code as expounded in our jurisprudence, that the property purchased by the defendant wife, during the marriage, fell into the community, and that the burden of proof is on her to show affirmatively the existence of all the features and elements required by law to shield her claim from the application of the general rule. C. C. 2402.

And in this connection it is equally well settled in our jurisprudence that the declarations of herself and of her husband in the act of sale, that the purchase was made as an investment of her paraphernal funds of which she had retained the administration, are not sufficient to rebut the presumption of law in favor of the community. Sentmanat vs. Soulé, 33 Ann. 612; Bachimo vs. Coste, 35 Ann. 570; Burns vs. Thompson, 39 Ann. 377.

The application of this' rule to her case is practically conceded by the defendant wife, and she has introduced evidence for the purpose of showing that she had received from her father as manual gifts two sums of money more than sufficient in amount to meet the payment of the property in dispute.

We have carefully considered and weighed all that evidence and we reach the conclusion that it falls far short of the requiroments of the law applicable to such cases.

We therefore hold that the property in dispute does belong to the community existing between the defendant spouses, and that there is no error in the judgment appealed from.

Judgment affirmed.