author: Egan, J. Marr, J. Manning, O. J.

text:
    No. 6570.
    Mrs. Mary L. Hardin vs. Wolf & Cerf.
    Tho holder o£ a mortgage, given by a wife with her husband’s authority, on her separate property, 'without the authorization of the judge under the act of 1855, must prove that the debt which the mortgage was given to secure inured to the -wife’s separate benefit, before he can hold her liable.
    A wife separated in pr-operty is liable for her proportion of tho household expenses, and for the whole of such expenses, if her husband is without moans.
    The homestead law embodies, in part, the public policy of the State, and rights acquired under it can not be waived by any convention of parties.
    APPEAL from the Sixth Judicial District Court, parish of St. Helena.Kemp, J.
    -íT. M. Carter, for plaintiff and appellant.

      ,T. M. Wright, for defendants.
   'The opinion of the' court was delivered by

Egan, J.

This action is against a married woman separated in property from her husband. It is based upon a promissory note and mortgage executed by her, with the authorization of her husband, but without that of the judge, and upon a small balance of account with plaintiffs’ merchants at Osyka, Mississippi. The defendant pleaded the want of authority to contract the debt, or to execute the note and mortgage, denied that she purchased the goods, etc., as alleged by plaintiffs, or that she authorized their purchase, and specially denied that the articles named in the account of plaintiffs, or the consideration of the note and mortgage, inured to her separate benefit. The mortgage was by public act, and contains the usual pacts, and also an express waiver of all claim of homestead exemption under any existing or future laws of the State.

The first question to which our attention is invited by the answer and the brief of defendant’s counsel is the effect of section 3981, 3 R. S., and arts. 126 and 127, R. C. C., which are but a re-enactment of the act of 1855, “ to enable married women to contract debts and bind their dotal and paraphernal property with the authorization of their husbands and of the judge, and upon the certificate of authorization of the latter.” This is not an open question. In the case of Rice vs. Alexander, 15 An. 54, it was held that the law, as it stood, in regard to the contracts of married women, previous to the act of 1855 referred to, remains unchanged, except that a married w,oman taking the benefit of that act is placed on the footing of a femme sole, and her contract, made with the judge’s authorization under the statute, is sufficient, or, in the language of the act, full proof ” against her, while'under the general jurisprudence those who deal with a married woman are bound to see and prove that the contract made with her inures to her benefit. The authority to execute the note and mortgage in the case at bar was given by the husband, who signed both with the wife for that purpose. It remains, then, to inquire whether the plaintiffs have shown sufficiently the liability of the wife defendant by evidence outside of the note and mortgage. The husband is deaf and dumb, and without property or means of support of himself or family, the wife is separate in property from him, and owns the only property in the family, consisting of a tract of land upon which they reside, and which, in the years 1873-74, was cultivated by two sons of the family for the common benefit and support. Early in 1873 the defendant, Mrs. Hardin, gave plaintiffs a mortgage upon her land to secure them for advances of supplies, etc., to be made for the use of the plantation and family.

The evidence shows that these supplies were furnished accordingly, and that subsequently the mortgage and note now sued on were given with the husband’s authorization, in lieu of the original mortgage, which was given by the wife alone, without the husband’s authorization, and to cure that defect. The wife, whose testimony was taken in the case, admits signing the mortgage, and that she signed it supposing it might assist her sons in cultivating the crop; that the family were supported by the'farm; that she relied on the revenues arising- from the crops for support, and that no member of the family owned or possessed any lands or real estate. It is further shown that she subsequently acknowledged the indebtedness when the account was shown her, and begged indulgence when plaintiffs threatened to foreclose the mortgage. It is quite likely that the plaintiffe took advantage of the necessities of the family, and also took into account the risk, and charged exorbitant prices. The defense was not, however, based upon this ground, nor does the evidence enable us to determine it, much as we would feel disposed to do so. It is shown, however, that the defendant was separate in property, was the sole property owner, that the credit was given to her, and articles for the use of the family and plantation furnished upon the faith of that credit, and that her husband had nothing and no means of support. R. C. C., article 2435, provides “ that the wife who has obtained the separation of. property must contribute in proportion to her fortune and to that of her husband both to the household expenses and to those of the education of their children.” And again: “ She is bound to support those expenses alone if there remains nothing to her husband; and even when the husband has property, if all that of the wife be paraphernal and she has reserved to herself the administration of it, she ought to bear a proportion of the marriage charges equal, if need be, to one-half her income.” R. C. C. 2389. She may, also, with the authorization of her husband, bind herself as surety for any other person than her husband. 2 An. 903; 5 An. 369; 14 An. 15. Her separate property is also liable for her frauds without reference to the question of authorization. 2 An. 1; 6 An. 56; 10 An. 433. Under this principle, having induced the credit, she would be bound, and her separate property liable. It is also immaterial whether, according to plaintiffs’ theory and evidence, the consideration inured to her own advantage and that of her separate property, whether, according to her theory or statement, the mortgage was given to assist her sons, or whether the debt was contracted for the support and maintenance of the family, she being the sole property owner, as we have seen.

The only remaining question is as to the right and power to waive the homestead exemption, as was done in this case. The determination of this question is the more important, because, homestead exemptions being comparatively recent in Louisiana, there has been no adjudication by this court on the subject. In other States it has been often considered, and the adjudications have been by no means uniform, while in most it is regulated by statute. In a majority of the States, however, it is held that such waiver is ineffectual and will not be enforced. See Smyth on Homestead and Exemptions, section 542, citing 15 Cal. 266; 22 N. Y. 249; 9 How. Prac. R. 547; 10 How. Prac. Rep. 282; 9 Am. Law Reg. (La.) 112; 1 Am. Law Reg. (N. S.) 553; 16 Iowa 415; 20 Iowa 376; 16 Iowa 243; 7 Wis. 582; 20 Pick. 90; 2 Cald. (Tenn.) 283. In Pennsylvania, wlicre the right of waiver seems not to have been questioned before, in the case of Forrester vs. Mack, 49 Penn. (13 Wright) 387, decided in 1865, the court says: “If, with the experience and observation we have had, wo wore now to pass upon the question for the first time wo would be very likely to deny the right of waiver altogether, and-srick to the statute as it is written.” In Crawford vs. Lockwood, 9 How. Prac. R. 547, the court refused to enforce a waiver of “ the benefit of all and every exemption of property from sale on execution under the laws of the State.” In Harper vs. Leal, 10 How. Prac. R. 276, the debtor made a promissory note, and for the payment of the same agreed “ to waive all exemption to property,” and the court said: “Not only am I of opinion that the agreement in this note to waive all exemption to property'ereates no estoppel, but I go further, and hold that it must also be regarded in the eye of the law as a hard, oppressive, and unconscionable contract, and that it is totally void, as in contravention of the spirit of our statutes and of public policy.” In Kruette vs. Newcomb, 31 Barb. 169, the same principle was affirmed. The note on which the judgment in that case was’ recovered expiressly waived and relinquished “all right of exemption of any property I may have from execution on this debt.” The judges all concurred that a person contracting a debt can not agree with the creditor that in case of non-payment he shall bo entitled to levy his execution upon property exempt from levy by the general laws of the State. In Curtis vs. O’Brien, 20 Iowa; 376,the same doctrine was maintained, and such an agreement was held contrary to public policy. The same author before referred to, Smyth on Homestead and Exemptions, the latest and fullest work on the subject which we have seen, published in 1875, after a largo experience of exemption laws in most of the States, and upon a review of all the authorities, says with much force (section 545): “The statutes which allow exemption are based upon views of public policy, intended for the preservation of families against the improvidence or misfortune of the head, and the latter cannot, by any executory agreement, waive such exemption; because if effect were given to such waiver a few words contained in any note or obligation would operate to change the laiv between debtor and creditor, and if they were enforcible, such words would generally by inserted in obligations for small demands, and so frustrate the intention of the Legislature.”

That such was the object of the homestead exemption under the laws of Louisiana, and that it was not intended for the benefit M the debtor, but for the protection and benefit of the family, is aj^areut from the provision requiring not only that the property be occupied as a residence and bona fide owned by the debtor, but that ho shall have a family, or mother or father, or person or persons dependent upon him for support. C. P. 645. As has been said before, we have nothing to do with the policy or impolicy of the law. As was said in the Pennsylvania cause, ita lex scripta est, and the judicial department of government is bound by it. To- permit the waiver of the exemption, would be to revise the policy of the law at the option of the debtor, for whose personal benefit it was evidently not designed, and wo are unable to perceive why it should not he considered immoral and against the interests of society to permit one who has given a mortgage to claim the benefit of tho exemption from its operation, and that it should be so considered whore he had simply, in an executory agreement, added the words of waiver. In our opinion one act is as immoral as the other, and neither rests on that ground, but on tho policy of the law-maker. Arguments on that subject apply equally to the operation and effect of usury laws which enable the debtor not only to refuse to pay the excessive interest, but to recover it back within a year, and also to all statutes creating exemptions which violate the doctrine of common pledge equally with that now under cpnsideration. The same may be said of all bankrupt and insolvency laws which provide for the release of the debtor from his obligations without payment in full.

The rich and prosperous condition of Louisiana before the war, when every one was independent, as a rule, and the contrary an exception rendered homestead exemptions unnecessary. No sooner had the war ended, however, than, owing to tho prostrate and impoverished condition of the people, both here and in several of our sister States of the South, the protection of the debtor’s family against absolute beggary through his fault or misfortune began to be guarded against by the passage of homestead exemption laws. Ours was immediately and earnestly pressed to its passage at the extra session of the Legislature in the fall.of 1865, thus, evincing the public policy and demand. The exemption then made has continued through every successive change of legislation and government, and may now be considered with us, as it has long been with other States, and especially with the great and growing West and tho Pacific slope, as part of our settled policy. As to whether this policy be good or bad, wise or unwise, about which there arc and have always been, and always will bo, conflicting opinions, it is not our province to determine. It is enough that wo find it so, and it, therefore, becomes us to deal with it by tho light of tho experience and observation, the wisdom and the jurisprudence of other States where similar laws have boon of longer existence and of more extended operation. In tho new West, as in our sister State of Texas (see-14 Texas Rep. 449), this policy of homestead exemption has been largely influenced by a desire to invite new population of men of families and small moans, to develop their resources and build up the country with the fresh scope given to their industry and enterprise from the assurance that under all circumstances the shelter for their families Was secured to them against disaster or misfortune in business. And where would the same motive find more appropriate place than in Louisiana, where the influx of a new and hardy yeomanry would prove a panacea for all troubles, political and material.

There is another view to take of this question of waiver of homestead exemption. In several of the States, as in Connecticut and Alabama, for instance, the levy on exempt property is considered the same as a lev.y on a third person’s property, and the officer who makes such seizure is liable for a trespass. See Smyth, section 547, citing 16 Conn. 144, and several cases from Alabama and Pennsylvania. In Louisiana a highly penal statute to the same effect was passed in 1874, p. 53, and again in 1876, p. 123, while nowhere is the penalty of nullity more fully denounced against all acts and contracts in contravention of public policy, R. C. C. 1893 and 1895; and by an express provision of our law (C. C., art. 12), whatever is done in violation of a prohibitory law is void, though its nullity be not formally directed.

For the reasons stated, it is therefore ordered, adjudged, and decreed that the judgment of the court below bo avoided and reversed so far as it recognizes and seeks to enforce the waiver of exemption of the homestead of the defendant, which is hereby decreed exempt as such from ■seizure or sale under plaintiffs’ mortgage and judgment, and that in all other respects it be affirmed. It is further ordered that plaintiffs pay the costs of appeal and defendant the costs of the court below.

Concurring Opinion.

Marr, J.

The exemption of property from the pursuit of creditors is by no means a new feature in the law of Louisiana. The Civil Code of 1825, article 1987, exempted the right of personal servitude, of use and habitation, of usufruct to the estate of a minor child, the income of dotal property, money due for the salary of an office, and wages, or compensation for personal services.

The Code of Practice, article 644, exempted the linen and clothes, and the beds of the debtor and his family, his arms and military accoutrements, and the tools and instruments necessary for the exercise of the trade or profession by which he gains a living.

The act of 1843 exempted, in addition, corn, fodder, hay, provisions, and the supplies necessary for carrying on the plantation to which they are attached for the current year.

In 1852, by act No. 255, the widow and children left in necessitous circumstanees were entitled to be paid in preference to all other creditors, except the vendor, as much as one thousand dollars out of the effects of the-succession; and in the same year, by act No. 324, the lot or piece of ground and buildings thereon occupied as a residence and bona fide owned by the debtor having a family were exempted to the value of one thousand dollars; also, necessary housekeeping effects to the value of two hundred and fifty dollars, the books of the family library, family portraits and pictures, and the books, instruments, and apparatus of the trade or profession of the debtor.

Then carné the act of 1865, which exempted one hundred and sixty -acres of ground and the buildings and improvements thereon, occupied as a residence and bona fide owned by the debtor having a family, or mother, or father, or person or persons dependent on him for support; also, one work-horse, one wagon or cart, one yoke of oxen, two cows and calves, twenty-five head of hogs, or one thousand pounds of bacon or equivalent in pork, and, if a farmer, the necessary quantity of corn ¿md fodder for the current year, not to exceed two thousand dollars in value.

This was followed by the exemption of household and kitchen furniture, not exceeding six hundred dollars in value, sewing machines, and pianos. 1872,1874,1876.

Similar exemptions are to be found in the statutes of most if not all of the other States, and in the laws of the United States. The act of Congress which authorizes collectors of internal revenue to enforce the payment of taxes by distraint and sale of the property of delinquents without judicial process (Revised Statutes, section 3187) and the bankrupt act (Revised Statutes, section 5045) make liberal exemptions in favor of the debtor who is the head of a family, and the latter act exempts such additional property as may be exempt by the laws and constitution of ■the State in which the debtor has his domicile as existing in the year 1872.

The universality of these laws, and the steady enlargement of the exemptions in our own State, have closed the question as to their expediency, if that could be the subject, legitimately, of judicial inquiry; and these laws are not to be regarded with disfavor nor construed otherwise than as remedial statutes, the plain manifestations of a well-settled public policy.

The homestead act of 1865 exempts from seizure and sale under execution the property of the debtor having a family, etc., dependent on him for support, occupied as a residence, etc. It would be a narrow and strained limitation of this act to limit it to men alone, and to exclude from its benefits a woman, wife of a deaf mute, an imbecile, who can give her no assistance in providing for his wants and necessities and those of their offspring. The law looks to the head of the family, to the person who is the debtor, and upon whom rests the burden of maintaining the family; and its terms are broad enough to include that person,, whether husband, or wife, or widow, or a man or woman never married.

The right of the debtor to claim this exemption is in no manner impaired by the granting of a mortgage, and it is difficult to perceive the advantage, in a moral point of view, in favor of the mortgagor who has not, over the mortgager who has, waived the exemption. In either case the exemption would deprive the mortgagee of the security given by a solemn contract, a formal hypothecation; and in neither case would the creditor have parted with his money, or given the credit,'if he had believed that it was in the power of the debtor to deprive him of this-security by any plea or claim.

It has been objected that this exemption ties up and keeps out of commerce a large amount of property. But this is a question of mere expediency, falling within the exclusive domain of the legislative department, and it can not be dealt with by the judiciary. Besides, as the debtor who has not granted a mortgage and the mortgager who has not waived have the unquestionable right to insist upon this exemption, tho amount of property in commerce will not be materially increased by refusing the exemption in the comparatively few cases in which the most needy, the-smallest proprietors, might be forced by the pressure of their necessities to agree in advance not to claim the benefit of the law.

The mortgager who claims the benefit of this exemption cheats the-hopes and expectations of his creditor as effectually where he has not waived as where he has waived; because it is merely idle to suppose that a creditor would take or rely upon a mortgage which he knew at the time the law would not permit him to enforce. He who contracts a debt binds himself legally and morally to pay that debt. If he grants a mortgage to secure it he merely superadds the special engagement that the property mortgaged shall be applied to the payment of that debt by preference; and when he interposes a plea or a claim by which this hypothecation is defeated he violates his moral and legal obligation as completely, and inflicts precisely the same injury upon his creditor when he has not as when he has agreed formally and in advance that he will not interpose that plea or claim. Tho man who grants a mortgage contracts the solemn obligation that the property shall, in case of default on his part, bo seized and sold in satisfaction of tho debt intended to bo secured; and ho contracts no additional moral or legal obligation by formally stipulating that ho will not do that which the mere giving of the mortgage necessarily implies that he will not do, prevent in any way tho realization of the benefits which his contract professedly secures.

If we should decide that tho debtor who has waived may not claim, while tho debtor who has not waived may claim, tho benefits of the homestead exemption, we would virtually declare that it is in the power of the citizen to abrogate by his conventions the laws enacted in view of the public interest and public policy. The homestead exemption is not' designed for the benefit of the debtor; it has in view his helpless dependents, and it intends to afford them a home and a shelter, and the means of living, of which it will not permit them to be deprived by his folly or his misfortune.

Our law-makers have not seen fit to' make the homestead inalienable, nor would it be wise to attempt to do this. It may be to the interest of •the family to abandon the domicile and seek a home elsewhere, and no law ought to or can impose any restriction upon this right. The power to sell for a price freely agreed upon is very different from the power to consent in advance to a forced salo. The mortgagee usually leaves a wide margin between the value of the property and the debt to be secured, and he may force a sale for cash at a most unpropitious time at -two-thirds of the appraised value.

The debtor who waives the benefit of this exemption in advance occupies no worse position, morally, than if ho should agree at the time of contracting a debt that ho would not protect himself against its enforcement by a subsequent discharge under the bankrupt or insolvent laws. He who is driven by his necessities to mortgage the home of his wife and his children, by the mere act of granting a mortgage instead of •selling the property, manifests the wish to retain it, and the hope that he may be able to save it by paying the debt. Under the pressure of his wants, deluded by his hopes and expectations, he consents to terms which ho would never think of submitting to under other circumstances, and puts it in the power of the creditor to deprive him of the property for a price far below that which ho might have obtained by voluntary sale. If he may, by the stipulations of the mortgage, subject to seizure and sale the property legally declared to be exempt, the whole object and policy •of the law will be defeated, and the needy and helpless, the very persons designed to be protected, will be deprived of the benefits intended specially for them.

Every one who takes a mortgage understands that it is subject to the exemptions of the homestead act; and every one is held to contract with I’eference. to the law. The exemption is absolute.- Nothing in the act indicates the intention of the Legislature to make it dependent on the will of the debtor, and while the law may not deprive the citizen of the right to sell at his pleasure that which is his, it may well refuse to countenance, by giving effect to engagements in violation cf its policy and prohibitions. An individual may renounce what the law has established in his favor alone, but he can not renounce that which is intended for the benefit of others and for th<5 public good. IR. C. C., articles 11,12-.

Homeless, helpless paupers are a curse to society, and the homestead act and other exemption laws are designed to protect the public as far as possible against this grievous burden. If it is once understood that the property which the law declares to be exempt can not be sold under legal process, whether with or without a previous contract and waiver, all pecuniary engagements will be made with reference to that exemption, and credit will rest upon a more secure, -because a better defined, basis. We readily accept and adapt ourselves to settled and uniform rules of property; and it is not the exemption itself, it is the uncertainty as to its meaning and extent, that impairs confidence and injures credit. Let it be understood that the exemption is absolute, and no creditor will trust to or rely upon the exempted property, or estimate it in making his contracts and engagements.

I concur in the opinion and decree pronounced by Mr. Justice Egan, but the importance of the subject warrants the separate expression of ■my views of the law.

Dissenting Opinion.

Manning, O. J.

The enactment of homestead laws has been frequent of late years. The arguments in their support are specious, and attract to them popular favor. Whatever may bo the reasons that induce the Legislature to enact them, our solo duty is to ascertain what is the legislative will, and when ascertained to give effect to it.

All statutes which take property out of commerce and attempt to impress upon it the character of inalienability, and all statutes which arc in derogation of common right, are to be strictly construed. The general law regulating the relations of debtor and creditor is, that the property of the debtor is the common pledge of his creditors. Laws which exempt any portion of the debtor’s property from the pursuit of tlic creditor are exceptions to the general rule, and can not be extended by implication. Thus, it has been held by this court that predial property alone and not urban is exempt to the value of two thousand dollars under the statute of 1865. Crilly’s case, 25 An. 219; Hargrove vs. Flournoy, 26 An. 645.

The decisions in our sister States upon many questions arising under their homestead laws are conflicting. This is due in part to differences in the laws, and in part to the animus which pervades the judicial construction of them. An attempt has recently been made (Smyth on Homesteads) to systematize this branch of modern law, and the writer points out with accuracy, the dissonant characteristics of the laws in the States, showing the variant rules that have been adopted.

We have recently held that a mortgage, executed by a debtor upon the only land ho owned, which in quantity and value was loss than that-exempted by our statute, could not be enforced. Van Wickle vs. Landry, 29 An. 330. In that case we were strongly pressed to restrict the operation of the law to the time when the land is occupied as a homestead, and my brother Spencer approved that limitation and qualification of the debtor’s right of exemption, and dissented from the opinion of the court. There was certainly ample room for difference of opinion on that question, and the same writer, to whose works allusion was just now made, informs us that that view still obtains in a few of the States, though the more recent view, he says (Smyth, sections 239, 210), is that expressed by a majority of the court in that case. In rendering the opinion Of the court I disclosed a mental oscillation that was personal to myself upon the point involved, which was finally determined by the influence of the principle of stare clecisis. But wo are asked to go still further now. Then we held that the debtor could not bo presumed to waive his legal right. Now we are required to disregard his express waiver. I can not assent to that doctrine.

The chief ground and the only tenable one on which that doctrine can rest here is the assumed public policy of the law, for there is no expression in our statute that warrants, of I would rather say compels, that construction. Now, if it be a distinct feature of public policy as shadowed forth in our homestead law that the family should bo protected from the improvidence or misfortune of its head, why is this protection so partial and distinctive in its nature that it will not apply to those who live in towns, and whose families might be supposed to need the protection and to deserve the beneficence of the Legislature as well as the rural inhabitants.

May it not be true that judicial construction lias enlarged the scope of these exemption laws ? It has been held that a widow, who became a debtor durante viduitate, was entitled to the benefit of our homestead law (Calvit vs. Hoy, Opinion Book 43, p. 358), and I think upon good grounds, all the other requisites concurring. But it has never been held until the present case that a married woman was entitled to it, although the law of this State makes her an object of its peculiar care. The statute does indeed specify that no debtor shall be entitled to the exemption provided for in it whoso wife shall own in her own right and be in the actual enjoyment of property worth more than one thousand dollars. R. S. 1870, section 1691. Does this mean, or are we to infer from it, that the wife shall bo entitled to the exemption provided the husband owns nothing ? The language does not bear that construction. That meaning, to my apprehension, is not oven latent in it, certainly not patent upon it. And yet it is an admitted rule of construction that statutes like this can not bo enlarged, by implication.

There is great force in. the argument that when a person performs the deliberate act of executing a mortgage to secure a debt, that act' shall be hold to bo a tacit but perfect waiver of all right of exemption provided by law. It has been already observed that wo refused to adopt that rule; but when the debtor not only executes the mortgage, but expressly and solemnly declares that he renounces all benefits of the exemption laws, and this declaration is recited in the act, I do not think he should bo permitted afterward to gainsay it under any circumstances. I do not think the law comes to his relief and says “ I will help you to speak untruthfully as well as to act dishonestly, and will interpose my shield between you and him who trusted first to your honesty to pay your debt, and next to your veracity that you would not evade it under cover of a special law.”

There is much to bo said also in favor of that public policy which is a conspicuous feature of the laws of all countries, and which is the basis of public morals, viz.: that compulsory fidelity in the discharge of money obligations elevates the character of the citizen, and by consequence promotes the public virtue. The State that visits by the penalty of its laws the violation or disregard of pecuniary engagements with the greatest rigor is the State that has the highest standard of public honor. Wherever the law offers a premium to dishonesty by providing means of escape to the citizen from the payment of his debts, whether the mode bo by exemption of property from seizure or by the equally convenient one of hiding it under cover of another’s claim, there will bo found the greatest laxity of the public conscience and the most shameless disreregard of public and private obligations.

When, therefore, there is not an express statute conferring upon the party seeking to evade an obligation the unquestioned legal right to escape the consequences of that obligation, and lie seeks tó justify it upon the ground of public policy as the motif of the construction he invokes, it may not be improperly answered that the same considerations forbid the multiplication of those devices by which he who promises is excused from performing and ho who renounces a benefit is permitted to enjoy it in spite of his renunciation.

Seexcer, ,T. I concur in the opinion of Mr. Chief Justice Manning.


source: Caselaw Access Project

author: Spencer, J.

license: Public Domain

text:
    No. 6593.
    Stoughton Cooley vs. H. H. Broad et al.
    A contract by which the owners of certain vessels unite in an association to carry passengers and freight for hire, each furnishing a certain capital to the .association, and each receiving a certain proportion of the profits, constitutes the owners, as to third persons, commercial partners, and as such, liable in. solido, for the debts of the association, no matter what restrictive clauses the contract may contain. The holder of a solidary note can not have its solidarity impaired, by the unathorized action of his collecting agent, who receipts in favor of one of the solidary debtors on the note for “ his share ” of the debt.
    APPEAL from the Fifth. District Court, for the parish of Orleans. Cullom, J.

      Hornor & Benedict, for plaintiff and appellee.

      Fred. JD. ISng, for defendants.
   The opinion of the court was delivered by

Spencer, J.

On the twenty-sixth of.June, 1875, the defendants, Broad, Dowling, Trousdale, Quaterreaux, Yerlander, and Powers, owning among them, several steamboats running in the Opelousas trade, formed an association whereby they agreed that they would put into said association their respective boats. The objects of the association were declared to be “ to co-operate together in building up and maintaining the trade, etc., known as the Opelousas trade,’ by running their respective boats between New Orleans and Washington, Louisiana, and carrying freight and passengers between these points,” * * * “ to use their influence and energy to enhance the interests of all the parties to this agreement, and to prevent and discourage opposition, etc.” The agreement is made for one year, under articles and stipulations as follows:

By the first, the parties agree as to the boats they are respectively to put in. By the second, they fix the relative values of their boats, and name certain of themselves as a “ board of control,” and define generally its powers. By the third, they provide for replacing any boat disabled or lost, and regulate such boat’s participation in the profits and losses; also, fix the time and manner of each boat rendering its accounts and paying over earnings to the beard of control. By the fourth, they agree to the closing of certain warehouses and the opening of others; and provide that the parties shall respectively furnish and keep their boats in good order; repairs of less than seventy-five dollars in amount to be made at the expense of the association. It is further declared that “ this agreement is not a copartnership, and that none of the boats named or their substitutes or the owners thereof, shall be bound for the debts of each other, nor shall anything herein be construed as making them liable or responsible therefor.’! The fifth article declares who shall be captains of the several boats, and provides for their removal.

On the seventh of February, 1876, this “board of control,” acting through James M. Dowling, A. P. Trousdale, and William R. Verlander, chartered from the plaintiff, Stoughton Cooley, for the use of said association (which in said act is styled the' Opelousas Packet Company), the steamboat Tensas, for a period of five months, at one thousand dollars per month, payable monthly in advance. For the four deferred payments, four notes were executed, each for one thousand dollars, and payable as follows, at the Citizens’ Bank: To the order of Jesse K. Bell, for five-twelfths; to the order of J. M. Dowling for four-twelfths, and to the order of W. R. Verlander for three-twelfths.

These notes were severally indorsed in blank by Bell for five-twelfths, by Dowling for four-twelfths, and by Verlander for tliroe-twel'fths. As they respectively fell due, Bell paid five-twelfths and Dowling four-twelfths thereof. Verlander made default, and three-twelfths, or two hundred and fifty dollars, of each note remains unpaid.

The payments by Bell (who it seems acted in this matter for the defendant Broad) and by Dowling were made at the bank, and were indorsed on the notes by the note clerk in words to this effect: “ Received from J. M. Dowling his part, $333 33-J — four-twelfths.” “Received from J. II. Bell $416 67, liis part on within note — five-twelfths.”

Plaintiff now sues all the members of said association as commercial partners, and liable in solido for the balances due on said four: notes.

Dowling and Broad answered by a general denial. Dowling subsequently filed an amended answer, alleging that he had indorsed said notes for only four-twelfths, and that he had paid that amount of each of them, and that plaintiff “ had receipted for each of said sums upon the back of each of said notes in full for his part and portion of each of said notes ; that he has paid all that he was bound for, and has been released from further liability.”

There was judgment against the defendants in solido, and Broad and Dowling have appealed.

There arc two questions involved:

First — Did the agreement of the twenty-sixth of June, 1875, create a commercial partnership, binding the parties thereto in solido for its debts ? and if so —

Second — Did the receipts of the note clerk of the bank, on the back of the notes, in favor of Dowling and Boll (the latter representing Broad) for “ their parts,” release them from solidarity and further liability ?

First — The only reason for doubting the existence of the partnership arises from the express declaration of the parties that no partnership was created by the act of association. They certainly did enter into an association, furnishing thereto specified capital, agreeing to divide profits and losses in fixed proportions, and engaging to carry freights and passengers for hire. This, under our law (O. 0.0.2796), certainly constituted a commercial partnership, and made the associates liable solidarity for debts of the association. When there exist all the conditions which, by law, create a legal relation, the effects flowing legally from such relation will follow, whether the parties foresaw and intended them or not. Thus where a man transfers to another for a sum of money, and absolutely, the ownership of a thing belonging to him, the contract between them is that of sale, and all the legal consequences of that relation will follow, even though the parties declare it not a sale, but some other contract. The fact that the parties had made stipulations between themselves as to their liability for each others’ debts, or' as to the proportion of their several responsibilities, can not affect third persons, even had these stipulations been within the knowledge of such third persons.

Second — The bank clerk, as such, had no authority to give release to any of the makers of said notes beyond what would result from their payments. No authority or power existed in him, except to receive payment. There is no pretense that plaintiff ever expressly authorized him to renounce any of his rights against the makers of the notes.

The judgment appealed from is affirmed with costs of both courts.


author: Egan, J.

text:
    No. 5406.
    In the Matter of Mrs. A. L. Brashear and Her Husband vs. Mrs. Charlotte M. Conner.
    The institution of a suit in tho capacity of heir of a decedent, or tho sale by an heir of his interest as heir in a succession, amounts to tho acceptance of the succession, pure and simple.
    Where tho heirs aro all of age, and present, and represented, and hare accepted the succession purely and simply, and there are no debts duo by the succession, there, is no necessity for the appointment of an administrator.
    i PPEAL from the Second District Court, parish of Orleans. Tissot, A J.

      Race, Foster cO F. T. Merrick, for plaintiff and appellant.

      TIornor & Benedict, for defendant.
   The opinion of the court was delivered by

Egan, J.

These appeals are by consent included in tho same transcript, are between the same parties substantially, and are intimately connected as to the questions and issues involved. They were tried and submitted together in tnis court.

John T. Osborne died leaving considerable property and a will, which ■was avoided at the suit of Mrs. Conner, who sued as his daughter and heir-at-law for that purpose. She subsequently applied for administration upon the estate and obtained an order of appointment and for inventory. At this stage, and before inventory, bond, letters of administration, or qualification of administratrix, Mrs. Brashear, another daughter and heir of decedent and assignee of John J. Osborne, the son and only other heir of decedent, filed a petition opposing any further steps in the administration and asking a rescission of the order of appointment on the ground that all the heirs were of age and had accepted the succession purely and simply; that there were no debts nor necessity for administration, which would only entail expense and delay upon the succession and heirs, and hinder and embarrass a partition, for which she also applied.

Mrs. Conner averred the necessity of administration “ to collect from Mrs. Brasliear, her co-heir, and her husband large sums of money due the estate as well as other claims and debts to pay;” she also denied “ that she had accepted the succession purely and simply.”.

These are the substantial issues in the two cases. The heirship of the parties is both proved and admitted, and had been adjudged in the proceeding to annul the will instituted by Mrs. Conner in her quality and capacity of heir-at-law. This was an unqualified assumption of the quality of heir on her part in a judicial proceeding which amounted to a simple acceptance of the succession. R. C. C., articles 988 and 994; Le Cune vs. Cottin, 2 N. S. 475; Dangerfield vs. Thurston, 8 N. S. 242; O’Donald vs. Lobdell, 2 La. 299. The same may be said of the effect of the present litigation as to Mrs. Brashear, who by embarking in it accepts purely and simply, and John J. Osborne accepted purely and simply by selling his interest as heir to 1ns sister, Mrs. Brashear (R. C. C. 1002, 994); and all the parties were of full age at the time of these acts. The record discloses no debts due by the succession or deceased, and no necessity for administration on that account. That necessity could not grow out of the indebtedness of one of the co-heirs to the other or to the succession or deceased, whether by way of collusion or otherwise, for this would be properly matter of account in the partition (C. C., article 1350); neither could such necessity arise from the indebtedness of other persons to the succession. The heirs are entitled to the same actions and exceptions as those to whom they succeed. C. P., article 23; R. C. C., article 945; 19 An. 428. They may therefore sue the debtor of the succession in the same manner as the deceased himself could have done; and if there be several heirs each may sue for his separate share in the same manner, as each is only bound for his pro rata share of the debts of the succession. C. P., article 113. There was really no succession to open after the proceeding to annul and set aside the will and the judgment annulling it; for as wo have already seen that proceeding was instituted and conducted by Mrs. Conner in her quality of heir, and in it she alleged that the sole heirs are John J. Osborne, who has sold and transferred all his rights in said estate to his sister, Mrs. Brashear, who is the remaining heir, and who appeared in that proceeding as well as tho present litigation, and is alleged to be in possession of the property. Prom that time there was no succession to administer, and the heirs who accepted purely and simply represented the deceased both as to his rights and obligations. The heir who accepts is considered as having succeeded to the deceased from the moment of his death. R. C. C., article 947. He is of full right in place of deceased, as well for his rights as his obligations. R. C. C. 945. All that remained was to partition the property between the heirs. Under such circumstances the property is 'vested in the heirs, and not in the succession. Samford vs. Toadiner, 15 An. 170; succession of Story, 3 An. 502.

Even when there are debts the heirs may stop the administration and claim the succession directly by giving security for their payment; and without administration the simple acceptance of the succession by the heirs entitles the creditors to sue them directly and recover the whole amount of their debts. R. C. C. 1423; 21 An. 278; 25 An. 56. A fortiori, then, may they stop administration and provoke a partition among the co-heirs at any time if, as in this case, there are no debts due from the succession. Every co-heir, whether of full age or a minor, may force Ms co-heirs to a partition, which it shall be the duty of the judge to decree. C. P., articles 1023,1027.

No one can be compelled to hold property with another, unless the contrary has been agreed upon; and any one has a right to demand a division of a thing held in common by the action of partition. R. C. C., article 1289. These principles are rudimental and familiar, and we see no reason why they should not apply to the case at bar.

We think the court below erred in not giving them application and in not stopping all further proceedings for administration and decreeing partition. It was especially irregular to proceed by rule instead of by regular trial on the merits, as was done in suit 35,328 — we can not give our sanction to this practice; this mode of trying the issues in a cause has often been reprobated by tliis court, see 3 An. 434; 8 An. 11 — and still more irregular to proceed or permit further proceedings for administration pending a suspensive appeal in that case and in case 36,986, which necessarily involved the substantial issues of 35,328.

The fact that an injunction issued in the latter case without affidavit or bond was irregular, but is not material, as under tho view we have taken of the case an injunction was not necessary. The proceeding for partition and in opposition to further attempt at administration should have been, entertained and the previous order rescinded. The effect of this would have been all that was required.

From the moment suspensive appeals were taken, whatever was done in contravention of them was without effect in law, and prohibition would have issued if applied for.

It is therefore ordered, adjudged, and decreed that the judgments appealed from be annulled, avoided, and reversed; that all proceedings for administration in the succession of John T. Osborne be stayed and avoided; and that the plaintiff in suit No. 36,980 of the Second District Court of New Orleans, entitled Adeline L. Brashear and her husband, Benj. F. Brashear, vs. Mrs. Charlotte M. Conner, be decreed to have and be entitled to a partition of the property and effects of the succession of John T. Osborne, deceased, in right as prayed for. It not, however, appearing how such partition can or should bo made, the case is remanded to the court below to determine as to the manner of partition, whether in kind or by sale, and for such other orders as may be necessary to effect the partition.

It is further ordered that Mrs. Charlotte M. Conner pay costs of appeal and of suit 35,328, those of partition to be borne ratably according to the respective interests.


text:
    No. 5351.
    W. H. Haile, Administrator, vs. McGhee, Snowden & Violett.
    An administrator can not sue an alleged debtor of the succession, in disregard of his formal settlement with and discharge of the debtor, without alleging error, or fraud in the settlement.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Hnuton & Grover, for plaintiff and appellee.

      Kenuard, Ilowe & Prentiss, for defendants.
   The opinion of the court was delivered by

Egan, J.

The plaintiff, as the administrator of the succession of E. H. Haile, who died in August, 1872, and whose succession was opened in the parish of West Feliciana, sues the defendants for the proceeds of sixty bales of cotton, and of one-third of twenty bales, which, as administrator, he consigned to the defendants for sale, during the months of October, November, and December, 1872. The proceeds of this cotton is alleged in the petition to be $4933 25, received by defendants and not paid over.

Plaintiff alleges that the succession of E. H. Haile is insolvent, and that his duty as administrator requires him to collect the assets, and that the defendants had no lien or privilege thereon for any claims due them from the succession.

The answer admits the receipt and sale of eighty bales of cotton as alleged, but avers that defendants made certain advances, and paid certain drafts, to enable E. H. Haile to raise the crop of cotton sold by them; that they had a privilege on the, funds in their hands for the amount of their account, and that they have accounted for, settled, and paid the amount due the plaintiff on account of the shipment of cotton.

In support of the averment of full and complete settlement, the defendants filed in evidence the following recéipt: “ Eeceived New Orleans, February 3,1873, from McGhee, Snowden & Yiolett, ninety-three dollars 51-100, being in full of all transactions with estate B. H. Haile, Jr., to date. (Signed) W. B. Haile, Administrator.” The plaintiff, who was a witness in the case, admits giving the receipt, and says he did not intend thereby to waive his right to demand from the defendants the proceeds of the cotton or to release them from their liability to account for and pay over the same which had been in part applied to the payment of the account of the deceased and of the succession with them. Neither the correctness of the accounts of sales of the cotton nor of the defendants’ accounts are disputed.

The evidence satisfies us that the administrator knew what he was doing when the settlement was made and when the receipt was signed, and that the receipt was intended by both parties to close the accounts between them. The administrator accepted the accounts of defendants rendered and balanced in accordance with the settlement and receipt, and, so far as appears from the evidence, still retains them so closed and balanced. The good faith of the defendants in the settlement, or of the settlement itself is in no manner impugned, and it appears from the evidence that the matter of requiring the defendants to pay over the proceeds of the cotton first, and collect their debt afterward, was talked of between plaintiff and defendants in New Orleans at the time of the settlement in February, 1873, and that the administrator assured them they would hear no more of a suit for that purpose, which it appears defendants had heard was contemplated. This of itself would rebut the idea that there was error of fact on the part of the administrator in making the settlement, even had it been alleged, as it is not. The question in this case is not merely as to the right to explain or contradict a ieeeipt for money. It is whether an administrator or any one else can be permitted to ignore a settlement with and payment to an acknowledged creditor, such as a factor or commission merchant, between whom and the succession there are cross accounts, to. treat the matter as if there had been no settlement, and without either allegation or proof of error of fact or fraud to sue for an account and settlement, as though nono had been rendered or made. We think neither good faith nor law-will permit this, and that the exceptions of defendants to- the mode of proceeding adopted in this case were well taken, and should have been maintained both as regards the action and the evidence. With all the advantage, however, ot the reception of evidence in the court below, regardless of their objections, the only thing which the plaintiff has been able to show to impeach the settlement deliberately made by him with the defendants, is that they may have been paid by the administrator more than their pro rata share of the succession funds. In the case of Sloan vs. Stevenson & May, 24 An. 278, a case of sale of cotton by an administratrix for Confederate money, the court held that “ the contract being executed the administrators would not be listened to in a court of justice when alleging their own dereliction of duty.” In the succession of Marr, 23 An. 718, it was held that the administrator is personally responsible to the heirs of the estate if he pays the same to one not authorized to receive; and the books are full of cases in which he and his bondsmen are held responsible to creditors for over-payments to other creditors or to persons not lawful creditors. It is this apprehension which is vainly confessed by the plaintiff, and which no doubt stimulated the bringing of the present suit. If the facts be so in this case, the other creditors have the double security and remedy to pursue the administrator and his bondsmen or the preferred creditor by an action of contribution. C. C. 1088 and 1188.

Had the plaintiff not made the settlement of February, 1873, or- had that settlement been attacked on account of fraud or even of fact, the case might have been very different from that presented by this record. It is well settled as a general rule, as argued by the plaintiff, that a purchaser of succession property or a debtor of the succession can not plead in compensation when sued a debt due by the deceased to himself not legally liquidated or demandable- before death. It is equally well settled that the rights of creditors are fixed at the death of the debtor as to all antecedent facts and rights. These principles can not, however, be applied to the facts in this case between the parties, and can not avail the plaintiff against his own solemn and deliberate act.

It is therefore ordered, adjudged, and decreed that the judgment of the court below be annulled, avoided, and reversed, and that there bo judgment in favor of the defendants, rejecting the plaintiff’s demand, with costs of'both courts.


author: Manning, C. J.

text:
    No. 5373.
    Judson Fowler & Stillman vs. Henry B. Stevens.
    One who has represented himself in his own pleadings, in a former suit, as apart-, ner in a certain firm, is estopped from afterward denying it.
    ^PPEAL from the Fourth District Court, parish of Orleans. Lynch,

      JE. Sawle, for plaintiffs and appellees.

      Alfred Phillips, for defendant.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiffs' sue the defendant, as surviving partner-of the commercial firm of L. W. Lyons & Co., on an account for merchandise sold and delivered. The defense is that no partnership existed between L. W. Lyons and the defendant, but the latter was merely an employee of the firm of L. W. Lyons & Co., which had but one member; i. e., Lyons.

The question of partnership vel non, as dependent upon and controlled by the nature and effect of the agreement, does not enter into this case. The defendant has precluded himself from denying that he was a partner by his judicial admissions and his sworn statements on record.

Lyons died in 1867, and in the same year defendant presented his petition to the Second District Court of Orleans, signed by himself, commencing thus: “The petition of Henry B. Stevens respectfully represents that, as the surviving member of the late commercial firm of L. W. Lyons & Co., he is entitled to the liquidation of the same,” etc. The prayer is that he be “ appointed and qualified as liquidating partner of that firm,” and the order of court conforms to the prayer of the petitioner.

A year later he presents his provisional account to the court, and describes himself as the “ liquidating partner of the late commercial firm of L. W. Lyons & Co.” These are not mistakes of description by counsel. This petition, like the other, is signed by himself. On the trial, some months later still, wherein the homologation of the account is asked, he is a witness, and says: “ I am the liquidating partner of the late firm of L. W. Lyons & Co.”

These judicial admissions unalterably determine his liability in the capacity in which he is sued by the plaintiffs. His evidence to the contrary can not now be heard. He can not be permitted to impugn what he has thus solemnly and repeatedly asseverated in judicial proceedings to bo true. But some of Ms answers on the trial of this cause impliedly and inferentially admit the partnersMp. Thus, replying to the question if any of the creditors of the firm ever knew Mm as a partner, he says: “No, I don’t think any of the creditors knew that I was in the concern until after his (Lyons’s) death.” And the agreement of Lyons and Stevens, which the latter introduces in evidence to show that there was no partnership between them, stipulates that Stevens shall not “indorse any paper or go security for any one in his own name or that of the firm.” There can be no doubt of the defendant’s liability, and so thought the lower court. A remittitur of interest by reducing the rate has been voluntarily made by plaintiffs.

It is therefore ordered, adjudged, and decreed that the judgment of the court a qua be amended so as to reduce the rate of interest from seven to five per centum per annum, and, as thus amended, it is affirmed with costs.


text:
    No. 6375.
    The State vs. Butler Jackson et al.
    The declarations, and confessions of a co-conspirator, made after the accomplishment or the abandonment of the common enterprise, will not be received in evidence against another co-conspirator.
    APPEAL from the Sixth Judicial District Court, parish of Livingston. Kemp, J. Trial by jury.
    FT, B. Steele, Attorney General, for the State.

      C. J. Bindley, for defendants.
   The opinion of the court was delivered by

Spencer, J.

The defendant, Israel, is appellant from judgment and sentence for twelve months at hard labor for stealing a cow.

The only question presented is whether the declarations and confessions of a co-conspirator, made after the accomplishment or abandonment of the common enterprise, can be offered and proved against another co-conspirator? If not, the verdict and judgment in this case must bo set aside. Wharton lays, down the rule as follows:

“ The distinction appears to be well settled between the admissibility of declarations accompanying the act of the conspirators, and statements subsequently made as evidence against the rest.” Wharton’s Am. Crim. Law, section 705.

“ This co-responsibility holds good without regard to the time in which the party entered the combination. He becomes subsequently responsible for every act which may afterward be done by any one of the others in furtherance of such common design.” * * * “ When, however, the common enterprise is at an end, whether by accomplishment or abandonment, no one of the conspirators is permitted by any subsequent act or declaration of his own to affect the others. His confession, therefore, subsequently made, even though by the plea of guilty, is not admissible •in. evidence as such against any but himself. Under no circumstances -can the most solemn admission made by him on trial be evidence against .his accomplices.” Ibid, section 703.

It is therefore ordered and decreed that the verdict of the jury and judgment of the court thereon, as against the defendant, Israel, be annulled, avoided, and set aside, and. this case is remanded to be proceeded ■with according to law.


text:
    No. 6633.
    New Orleans National Bank, Mrs. A. B. Baranco, Subrogee, vs. Joseph Raymond.
    No petitory action; or action to annul, can be instituted by rule.
    A party can not impeach the title of his transferror.
    All buildings put on mortgaged real estate by the owner, are immovable, and become subject to the mortgage on the real estate.
    A mortgage creditor can not be prejudiced' by any contract made by his debtor, to which he is not a party.
    1 The revenues of a property, which belong to the owner of the property, can not bo seized, and sold separately from the property.
    . Any party, in interest may proceed by rule to remove any thing which illegally clouds a title.
    A bank organized under the national banking act may sell any immovable it owns, and reserve a mortgage, and vendor’s privilege on it.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      Charles Louque and C'arleton Hunt, for Joseph Billgery, plaintiff in ■pule and appellee.

      McGloln & Nixon and Magruder <£• Richardson, for Mrs. A. B. Baranco, -appellant.
   The opinion of the court was delivered by

Spencer, J.

The Union National Bank of New Orleans sold to Joseph Raymond by authentic act of date the twenty-seventh of February, •1873, a certain parcel of ground in the square bounded by First, Second, Dryades, and Baronne streets, for tho price of $14,666 66, one-fifth of which was paid in cash, and for the balance Raymond executed notes at one, two, three, and four years, secured by special mortgage and pact of aion alienando on the property.

On the tenth of April, 1873, Raymond entered into a contract with the city of New Orleans, acting through its mayor under ordinance No. 2041 .administration series. By that contract Raymond bound and obligated himself in substance to erect on said grounds a market-house according to certain specifications'; to free the property of all mortgages and incumbrances on or before tho completion of said building, and to keep the market as required by the city ordinances, etc. Raymond during the first ten years was to receive all the rents and revenues. At the expiration of the first ten years the city was for the next ten years to farm out the market and take all the rents and revenues in excess of five hundred dollars per month, or six thousand dollars per year; the rents up to said amounts to be paid to Raymond, his heirs, or assigns. At the end of this second term of ten years, Raymond was to transfer the grounds and market in full ownership to the city, binding himself not to alienate or incumber the same to the prejudice of this agreement.

On the tenth of March, 1874, the Now Orleans National Bank obtained judgment on a bill of exchange for seven hundred dollars against Joseph Raymond, issued execution thereon, seized, and, on the twenty-fourth of July, 1876, sold and purchased for one hundred and fifty dollars “all the right, title, and interest of Joseph Raymond in, to, and under the contract made with the city of New Orleans of date April 10, 1873.” * * “ The said act of April 10,1873, conferring upon him the right to the revenues of a market constructed by him at the corner of Second and Dryades streets, in the square bounded by Second, First, Dryades and Baronne streets, for the term of twenty years,” etc.

On the fifth of September, 1876, said New Orleans National Bank sold and transferred, in consideration of the amount due it, with subrogation, to Mrs. Baraneo, all its rights in, to, and under said judgment and purchase.

On the twenty-fourth of May, 1876, the Union National Bank, under executory process against Raymond upon said vendor’s mortgage, seized the above-described lots of ground, “ together with all the buildings and improvements thereon,” and advertised the same for sale on the first of July, 1876.

On June 29,1876, Joseph Billgery purchased and was subrogated to the judgment in the case of “Andrew G-. Downey vs. Joseph Raymond,” for some twelve hundred and fifty dollars, being for work done on said market buildings.

On the first of July, 1876, the day of sale, Joseph Billgery paid to the Union National Bank the mortgage note due, and the sale was not made. Subsequently he took up and paid the remaining outstanding vendor’s note held by' the Union Bank. Billgery did not take a formal act of subrogation at the time of his payment on the first of July, but on the second of August, 1876, the bank gave him a receipt and subrogation to its rights.

Billgery, as subrogee of Union National Bank, caused said proxierty to be re-advertised for sale on February 10,1877, and re-advertised again for sale on March 3,1877.

On the twenty-fourth of February, 1877, he commenced the proceeding now before us, being a rule taken on Mrs. Baranco to show cause why the act of adjudication by the sheriff to the New Orleans National Bank above described (to which she had been subrogated) should not be erased and canceled from the books of the office of conveyances, for the reason that the same is null and void and operates injuriously to him (Billgery) as a cloud upon the title of said property.

Mrs. Baranco pleads by way of exception and answer in substance as follows:

First — That plaintiff in rule, not being a party to the suit of the New Orleans National Bank vs. Joseph Raymond, can not proceed in this summary maimer to set aside the adjudication, and should proceed by direct action.

Second — That the pretended mortgage to the Union National Bank is void, as taken in contravention of the laws of the United States creating national banks; that said bank under said laws is prohibited from owning real estate and from taking or holding mortgages thereon under the circumstances of this case.

Third — That the mortgage to the Union National Bank has been extinguished by payment, and that said Billgery was not subrogated thereto.

Fourth — She alleges her ownership of the rights of Raymond under the said contract with the city, and that she is entitled thereby to the rents and revenues of said market in the hands of the sheriff.

Fifth — By way of reconvention she prays and demands the nullity of Billgery’s pretended mortgage rights and for their cancellation, and that she be declared entitled to the revenues of said market.

Upon these issues the case was tried. There was judgment for plaintiff ordering the erasure and cancellation of Mrs. Baranco’s title, and decreeing its nullity. She prosecutes this appeal.

The first question naturally presenting itself is whether or not the plaintiff, Billgery, has the right to proceed by rule and in a summary manner as he has done. This depends upon the nature of Mrs. Baranco’s rights. Plaintiff can not bring a petitory action by rule, nor can he institute an action of nullity in that manner. Her counsel insists truthfully that she did not buy the market property itself, but only Raymond’s rights under the contract with the city to take its revenues. He asserts that under said contract with the city the market building, though put by Raymond at his own proper expense upon the ground bought by him from the bank, did not constitute a part of the realty, but was a mere movable, and not subject to the bank’s vendor’s mortgage. He further argues that under the said contract with the city the property was inalienable, and therefore, even if the building was immovable, it was not mortgageable.

These propositions are, upon purely elementary principles, utterly untenable. The bank was admittedly owner of the lots. Both parties claiming under the bank, neither can or does dispute its title. The bank sold these lots to Raymond. Raymond became the owner. Raymond, the .owner, at his own proper cost, put a building on these lots. The-building thereby became immovable by accession and a part of the-soil. Raymond therefore owned the soil with the building on it. The bank had its mortgage (if any existed) upon the soil and the building as-its accessory. O. C. C. 455, 496, 497, 498.

These consequences and principles flow from the laws of the State, which are paramount and must' govern. The contract between Raymond and the city could not affect the legal rights of the bank. It would be strange, indeed, if a vendee, owing part of the price, could deprive his vendor of recourse upon the property sold, by entering into a contract with a third person declaring the property inalienable, or by agreeing to put buildings on it which he stipulates shall not be subject to the vendor’s claim, or by promising to transfer the land and buildings to such third person at a future day.

We have seen that Raymond owned the land and the building, and' that both were subject to the bank’s mortgage, the land and building■ being in reality but-one piece of real estate. Raymond’s interest in and to the future revenues of this property could not be sold distinctly and separately from the property itself. He did not derive his right to its revenues from the city, but from his ownership. His contract with the ■ city put restrictions upon Ids rights, but did not create them. But it is manifest that no agreement between Raymond and the city could affect the rights of the bank.

We regard the seizure and sale of Raymond’s interest in the future revenues of a property of which he was owner as utterly null and void; for where the rights of ownership and enjoyment are vested in one and the same person they constitute a unity, a single thing, and can not be - seized and sold separately. They must be seized together, or not at all..

We conclude, therefore, that the rights so-called of Mrs. Baranco are ■ mere appearances without substance, and as the inscription of her deed is calculated to injure the rights of persons claiming or owning said property, any party showing an interest may proceed summarily to have the cloud removed. See 2 An. 650.

It therefore only remains for us to inquire whether Joseph Billgery shows an interest in having this done.

He claims to be subrogee of the vendor’s mortgage held by the Union National Bank. If that be a valid mortgage and he be the holder of it, his demand is well' founded.

Counsel for defendant in the rule urges strenuously that the mortgage • in favor of the bank was in its inception null and void, as violative of the national bank act. He admits that the bank was the owner of the lots in question, but contends that it could not sell them on a credit, reserving a mortgage and privilege for the price, and that such mortgage and privilege were absolutely void, The twenty-eighth section provides as follows:

“And be it further enacted, That it shall bo lawful for any such association to purchase, hold, and convey real estate as follows:

“ First — Such as shall be necessary for its immediate accommodation in the transaction of its business.

Second — Such as shall be mortgaged to it in good faith for debts previously contracted.

“ Third — Such as it shall purchase at sales under judgments or decrees or mortgages held by such association, or shall purchase to secure debts due to said association.

“ Such association shall not purchase or hold real estate in any other case or for any other purpose than as specified in this section,” etc.

As stated, there is no dispute as to the bank having been owner of the lots, and therefore it must have acquired in some one of the modes specified in the act. The act gives authority to purchase under certain restrictions, but there is no restriction upon the power “ to convey.” The intent and policy of the law is manifest. It was to discourage, to prevent, the accumulation of real estate in the hands of these banks. But if such was the intent, it would bo strange if the power and right “to convey,” to sell, were restricted. We would expect the largest liberty in this direction, as being in furtherance of purposes of the lawgiver. It is unreasonable to conclude that because the law gives the power to do business “ by loaning money on personal security,” and restricts the right to purchase real estate, that therefore it forbids the sale of such real estate as may have been lawfully acquired upon the usual and customary terms of the commercial world, and strikes with nullity such vendors’ liens and mortgages as may be retained to secure deferred parts of the price. If defendant’s theory be right, then a national bank in Louisiana can not sell real estate on a credit at all, even without mortgage, for under our law the vendor has for his security, by mere operation of law, both his lien and the right of resolution of the sale, which would constitute real securities for debt in violation of the banking act. We conclude therefore that there is nothing in the law preventing a national bank from selling its real estate on terms of credit and reserving a mortgage to secure the price.

The remaining qriestion is, was Billgery subrogated to the bank’s mortgage? It is unnecessary to discuss the effect of the receipt and conventional subrogation given to him by the bank on the second of August, 1876. He was a creditor of Raymond, on the twenty-ninth of June, 1876, by subrogation to the judgment of Andrew G. Downey. He paid the mortgage note to the bank on the first of July, 1876. Subrogation took place by effect of law. C. C. (old) 2157.

There is no proof that Billgery acted as Raymond’s agent; that is satisfactory. It is conceded on all sides that it was Billgery’s money that was paid, and the weight of evidence is largely in favor of his having done so in his own interest and behalf.

It is therefore ordered, adjudged, and decreed by the court that the judgment appealed from be affirmed with costs of both courts.


author: DeBlano, J.

text:
    No. 6468.
    State of Louisiana ex rel. F. Comminge et al. vs. the Judge of the Superior District Court.
    The release of an injunction by bond, is a matter confided to the discretion of tlu> lower court.
    The exception of lispentlmsrwiil not lie considered in this court, unless raised in, and passed on by the court a wia.

    The writ of prohibition will not issue to restrain an inferior judge from doing any act, when ho has, prima facie, jurisdiction.
    APPEAL from the Superior District Court, parish of Orleans. Lynch, J.

      Charles S. Bice, for relators.
   The opinion of the- court was delivered by

DeBlano, J.

The plaintiffs in this case are the keepers of private markets; the defendants, except the judge, the keepers of public markets in the city of New Orleans. In 1874 the relators enjoined the then Administrator of Commerce, Superintendent of the Metropolitan Police, and other officers and persons from closing their respective establishments. Their injunction was tried and dissolved, and from the decree rendered against th’em they obtained a suspensive appeal.

After the dissolution of plaintiff’s injunction, and with a view, they allege, of evading, escaping, and annulling the effect of the appeal taken by them, the defendants, except the judge, brought suits against them, enjoining them from carrying on their private markets, and relators were .repeatedly refused by the judge of the Superior District Court the privilege of bending defendants’ injunction, which, they charge, invades the jurisdiction of this court.

On the twenty-eighth of November, 1876, the relators applied for writs of prohibition against the judge of the Superior District Court, restraining said judge from exercising any further jurisdiction in the injunction suits filed by defendants, and enjoining the latter from interfering with relators in regard to the private markets opened by them in this city.

Has the judge of the lower court exceeded the bounds of his jurisdiction ? '

Is the remedy applied for necessary for the preservation of the parties’ rights and the constitutional exercise of our appellate jurisdiction?

To obtain the injunction complained of, defendants alleged that they are the owners of public markets in this city; that- under the law no private markets can be opened within twelve squares of those they own; that, 'in violation of said law, the relators are carrying on a private market within the prohibited limit, and, by that unlawful act, have caused them damages in the sum of one thousand dollars..

So far as we are informed by the pleadings and documents submitted to our consideration, the only step taken by the relators in the suits of defendants against them, was their effort to dissolve the injunction by furnishing bond. It was within the legal discretion of the district judge to grant or refuse that application.

The exception of Us penclens, suggested by plaintiff, has not been urged in and passed upon by the lower court, and, to decide it, we would have to invade the inferior jurisdiction, or draw to our own, by a nameless process, the suggested exception.

The lower court, in this instance, was proceeding in a matter over whicli it possesses a legitimate and indisputable jurisdiction. It could not, justly, have refused the injunction granted to defendants.

“ Since the object of the writ is to prevent an inferior court from proceeding beyond its jurisdiction, where the return to the writ shows a prima facie case of jurisdiction, the prohibition should not be perpetuated.” High., p. 566, No. 780.

“The writ will not go, when the very question of fact on which it depends is denied, and is the chief point in the litigation yet pending, and undetermined in the court below, as it would virtually be a trial of the case by. the Supreme Court upon its merits and before the appeal.” High., p. 572, No. 788.

In the case of D’Meza against the judge of the Fourth District Court, for the parish of Orleans, Mr. Justice Howe in his decision reviewed and condensed our jurisprudence on this important question. He quoted ■from the nineteenth L. R. a clear and correct opinion, which has been and remains a safe guide to the bench and the bar; it reads as follows: “ The writ of prohibition, the power to grant which is specially allowed by the Code of Practice to appellate courts of competent jurisdiction, is not a writ of right; it is within the sound discretion of the tribunal to which the application is made;.and the party who resorts to it is bound to establish such facts as to convince the appellate court that the remedy applied for is necessary, not only for the protection of the legal rights of that party, but also, and principally, for the constitutional exercise of our appellate jurisdiction. We, therefore, understand that the authority thus granted, being considered in relation to the constitution, which allows this court appellate jurisdiction only, is to be confined to matters which have a tendency to aid that jurisdiction.” 21 An. 123; 26 An. 146.

The Superior District Court no longer exists. Before it was abolished, it was competent to decide the suits of defendants against plaintiffs. In taking cognizance of those suits, the judge of that court did not exceed the bounds of his jurisdiction. He fulfilled his duty. C. P., articles 845, 846.

It is therefore ordered that the application filed by plaintiffs on the twenty-eighth of November, 1876, be and it is hereby discharged at their costs.'


text:
    No. 6500.
    Charles Marin vs. Widow J. Thierry.
    Korvieo of a rule to dissolve an injunction, at the office of plaintiff, on some other occupant of the office, is not a legal service.
    Tlio appearance of a party merely to take an appeal, does not cure any defect in the service of citation on him.
    A PPEAL from the Fifth District Court, parish of Orleans. J. Cullom,

      Charles Louqiie, for plaintiff and appellant.

      Julien Michel, for defendant.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff took out an injunction against executory process of defendant.

Defendant took a rule on plaintiff to show cause why the injunction should not be set aside. Notice of this rule was “served on Charles Marin, defendant therein, by leaving the same at his office, No. 56 Exchange Alley, in the hands of John T. Dufour, same office, the said Charles Marin being absent at the time of said service.”

Charles Louque was the plaintiff’s attorney of record.

On the sixth of June, 1876, plaintiff and his attorney being absent, the rule was taken up, tried,- and injunction dissolved with costs.

Plaintiff prosecutes this appeal. The service of the rule to dissolve was bad. It was made neither on the plaintiff in person, nor at his domicile, nor on his attorney.

The subsequent appearance of plaintiff to ask for an appeal can not be construed into a waiver of his right to notice of the rule to dissolve his injunction.

It is therefore ordered, adjudged, and decreed that the judgment dissolving plaintiff’s injunction appealed from be avoided and reversed, and that this case be remanded to the court a qua, to be proceeded with ac: cording to law, defendant and appellee paying costs of appeal.


author: DeBlanc, J.

text:
    No. 6444.
    Mrs. Marie E. Dawson vs. Marie Landreaux et al.
    The admission o£ the alleged, agent that he is authorized to represent a third person in a suit, does not prove the agency.
    The authority to represent a defendant in a suit must be shown expressly, or by irresistible implication.
    jj^PPEAL from the Sixth District Court, parish of Orleans. Saucier,

      Thomas W. Collens, for plaintiff and appellant.

      C. E. Schmidt, for defendants.
   The opinion of the court was delivered by

DeBlanc, J.

Defendants, it is alleged, are the legal representatives of one Pierre Landreaux, who in 1835 was the recorder of mortgages for the parish of Orleans. They were, at the date of the institution of this suit, residents of the city of Paris, and represented here by A. Rochereau & Co., who were cited in this case as their agents and attorneys.

Plaintiff seeks to recover from them the sum of $6762 25 on the ground that forty-two years ago the said' Pierre Landreaux, defendants’ ancestor, failed, through error, ignorance, and in violation of his official duty as recorder, to inscribe her marriage contract in the book of' mortgages, which he then kept, and by said failure her rights against her husband, amounting to the amount she claims, were outranked by the rights of subsequent creditors, and completely lost in 1874, as shown by a decree of this court reported at page 534 of the twenty-sixth Annual.

Defendants’ pretended agents appeared in the lower court, and, reserving all legal exceptions to plaintiff’s petition, denied all and singular the allegations therein contained, and in bar of her demand pleaded the prescriptions of one, three, five, ten, twenty, and thirty years.

Under the general issue, an agent is bound to establish his authority ; and, assuredly, those who assert and rely on that authority, whether it be denied or not denied by the supposed agent, must prove what they assert. The naked admission of the agency is not of itself sufficient to bring in court those he assumes to represent. If it were, the rights of non-residents could too easily be sacrificed by concocted and fraudulent-admissions. Lanata vs. Macera, 20 An. 426.

Were we in this instance to arbitrarily presume the existence of the pretended mandate, we would have to as arbitrarily presume its nature and extent, whether it delegates mere power of administration, or specified and more important powers. The authority, to represent a party in the defense of an action against that party can result but from express terms or from implication so clear as to be irresistible. 9 L. R. 78; 10 L. 598; 4 An. 61, 133; 5 An. 218; 6 An. 562, 651; 17 L. R. 42; 20 An. 426.

In this case, those sued and cited as the agents of defendants have denied the supposed agency, and if -it did and does exist that fact has not been established, and, legally, defendants are notin court. Under these circumstances, the judgment should have been one of nonsuit.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be and it is hereby amended, and plaintiff’s demand dismissed as in case of nonsuit, at her costs in both courts.

It is further ordered that, as amended, said judgment is affirmed.


author: Seencer, J.

text:
    No. 6501.
    State of Louisiana vs. Mollie Robinson et al.
    Wlion the facts, as charged in the indictment, constitute the crime o£ robbery, the mere omission of the word “ rob,” will not invalidate the indictment.
    The absence of a witness is no ground for a continuance, unless the party asking the continuance shall make affidavit that he expects to procure the absent witness, and that the facts to be proved by such witness, can not be proved by any other one. known to affiant.
    The judge a ano may make any ruling as to the manner of conducting a trial, in order to secure a prompt decision, which is not prohibited by law, and which works no prejudice to the accused.
    A PPEAL from the Superior Criminal Court, parish of Orleans. I. Shaic,

      JBJ. JR. Steele, Attorney General, for the State.

      Brown & Dalton, for defendants.
   The opinion of the court was delivered by

Seencer, J.

Defendants, Mollie Robinson and Maria Davis, wore, on Information, tried and convicted of robbery. The information charges that they, “ with force and arms, etc,., in and upon one E. E. Long, in the peace of the State then and there being, did make an assault and him the said E. E. Long in bodily fear and danger of his life then and there feloniously did put, and money in paper, currency, etc., to the amount and of the value of $618, of the goods, chattels, and property of the said E. E. Long, from the person and against the will of the said E. E. Long, then and there feloniously and violently did seize, take, and carry away,” etc.

A motion in arrest of judgment was made on the ground that the charge in the information did not amount to a crime under the laws of Louisiana. And the same ground is"assigned in this court as error apparent on the face of the record. The counsel urges that the accused' are not charged with “ robbing,” but with “ seizing ” the property of E. E. Long.

The charge is in substance that they did make an assault upon, and put in bodily fear and danger of his life, one E. E. Long, and then and there feloniously and violently did seize, take, and carry away from his person and against his will $618. These facts charged constitute robbery, and the failure to use or the omission of the word “ rob”" is immaterial.

The affidavit for continuance was insufficient in two respects —

Eirst — It does not state that there was any expectation of being able to procure the absent witness; and,

Second — It does not aver that the facts sought to be proved by him could not be proved by other witnesses known to the accused, but merely that “deponents can not prove the facts by any other witness summoned here to-day on their behalf.”

It further appears that while counsel for defendants were examining a juror on his voir dire, as to his knowledge of the case at bar, the judge becoming impatient at having “ the information read over many times in slow tones ” as each juror was examined, directed its discontinuance as an unnecessary consumption of time. It appears, moreover, that the juror in question was challenged and set aside for cause.

Courts are established to try causes, and of necessity must have some discretion and control in the manner of conducting them. Of course, every reasonable opportunity should be accorded the accused to make good his defense, but it must be borne in mind that while the accused has rights, the State has them also. As a general rule, the judge should interfere as little as possible with the methods of the counsel engaged in conducting a cause; but it is manifest that cases might arise when it would be the duty of the judge to force the parties to proceed more expeditiously, as where it is manifest that the effort is to prevent, instead of to facilitate, a trial. "We have no reason to believe the accused in this ease suffered any prejudice from the action of the court.

The counsel, in their brief, call the attention of the court to a statement made in their motion for a new trial, to the effect that the jury returned into court and asked further instructions, which were given; that counsel then asked the judge to further instruct them, which he refused to do. It suffices to say that such a statement in a motion for new trial can not be noticed by this court. A bill of exceptions should have been taken showing the facts and the judge’s refusal.

■ We see no reason to disturb the verdict of the jury and'the sentence of the court.

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


author: DeBlanc, J. DeBlanc,'J.

text:
    No. 6622.
    Succession of François Lacroix.
    An account filed by an administrator, which contains no list, or classification, of creditors, and no statement of the debts of the succession, but a mere marshaling of the proceeds of one asset, and the recognition of hut one creditor of the succession, can not be the basis of a valid judgment. Any creditor of the succession, having an interest in the proceeds disposed of by the decree homologating such an account, may appeal from the decree.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      S. P. Blanc and H. Cf. Morgan, for city of New Orleans, appellant.

      TV. O. Denegre, for administrator.

      Louque & Fernandez, for J. Billgery.
   On Motion to Dismiss.

The opinion of the court was delivered by

DeBlanc, J.

The city of New Orleans, through its proper officer, has appealed from a judgment homologating what purports to be “the first provisional account,” filed by the administrator of the aforesaid succession.

We are asked to dismiss said appeal on the grounds:

First — That the city is without interest in this matter.

Second — -That, as a sale was made of the property belonging to - said succession, the presumption is that the taxes bearing thereon have been paid.

Third — That it is not shown that the taxes claimed by the city were recorded before Billgery’s mortgage.

The grounds relied upon are untenable; the city’s denied interest is asseverated in the mayor’s affidavit, and fully, established by appellee’s evidence. In the act of mortgage from Lacroix to Billgery, there is a declaration that Lacroix was then indebted to the city for the taxes of' 1871,1873,1874, and, besides, for a judgment of $10,563 45. These claims appear to be secured by privilege and mortgage prior in rank to Billgery’s mortgage.

We can not presume that these claims have been paid, as the administrator of said succession has applied to the Second District Court to be authorized to sell the property thereto belonging, and for the express purpose of paying those claims, and that of Billgery.

The motion to dismiss the appeal is overruled.

On the Merits.

The opinion of the court was delivered by

DeBlanc,'J.

On the first of February, 1877, E. T. Parker, public administrator, administering the succession of Frangois Lacroix, filed a petition praying for the publication, approval, and homologation of his provisional tableau which he annexed thereto. The tableau is as follows:

“First Provisional Account — Filed February 1, 1877 — Succession of Frangois Lacroix, in account with E. T. Parker, public administrator, and acting administrator of the succession. Provisional tableau of distribution in pursuance of an order of the Honorable the Second District Court for the parish of Orleans, and relating to the mortgage claim of Joseph Billgery only:

“Assets.

“ By proceeds of sale of the real estate designated in the advertisement of sale of'the seventh July, 1876, as Nos. 8 and 9. No. 8 realized (one-third cash, the balance on one and two years,) $2410; No. 9 (on same terms) $675, which sums have already been received by the administrator.

“ On the twenty-second and twenty-third January, 1877, there were sold, in pursuance of an order of the honorable court, the several parcels of real estate set forth in the annexed statement marked Exhibit ‘ A.’

“ The price of adjudication amounts to the sum of $15,540, which is being ’received by the administrator as the acts of sale are passed and the titles made.

“ Special liability proposed to be paid out of the proceeds of sale set forth on the reverse hereof.

“ Name of creditor — J. Billgery, by special mortgage of date the first of July, 1875, by act passed before Jules Mossy, Esq., notary, signed by the decedent, F. Lacroix — Amount of claim $5500, to be paid by privilege and mortgage out of the proceeds of real estate set forth on the reverse hereof, the fees of his counsel five per cent thereon, and interest at eight per cent per annum, from the first of May, 1876, and costs of clerk of the Fifth' District Court — $11 55, and $4 sheriff’s fees.

“ (Signed) E. T. PARKER, Administrator.

“Note. — The several parcels of real estate described on the reverse hereof were seized on executory process, issued by Joseph Billgery in June, 1876, to enforce the payment of the noto above described, interest, attorney’s fees, and costs of court.

“By consent of the parties interested, and with the very reasonable expectation that the several parcels of real estate upon which Billgery had a mortgage would realize a larger sum if sold at administrator’s sale, and partly for cash and partly on terms of: credit, the real estate above described was sold by Placide J. Spear, auctioneer, and with the result as shown in the exhibit.

“(Signed) E. T. PARKER, Administrator.”

This document, though styled a provisional account, was on the seventeenth of February, 1877, homologated as the final account of E. T. Parker, as administrator of the succession of Frangois Lacroix, and the administrator ordered to distribute the funds of said succession in accordance therewith.

From this decree of homologation the city has appealed. That decree does not conform to either the pleadings, the evidence, or the law.

The document styled “ á provisional account ” is not in law or in fact, in form or substance, the account due and to be rendered by an administrator. It is, at most, the acknowledgment of one of the debts of the succession, and a statement of the intended payment of that debt. To lessen litigation, we treat it as such.

The city, it is said, has not opposed the account, and can not complain of its homologation. We think otherwise. The paper filed as an account could not be made the basis of a judgment. It mentions none of the privileged claims inseparable from the settlement of a succession, the existence of which we are bound to presume. It ignores the claim of the city for over ten thousand dollars, acknowledged by the administrator, and to pay which he provoked the sale of the property — a claim shown to be, in date and in rank, prior to Billgery’s mortgage.

It may be that no expenses were incurred for the last illness, the coffin, the funeral, and the grave ; but there are law charges, which can not be denied. Were they paid, are they due? If paid, or to bo paid, out of what fund ? How, when, and by whom have they been or shall they be satisfied ? Is the succession solvent or insolvent ? If solvent, what is the amount of its assets, and of those assets what has been or may bo realized ? If insolvent, what are its liabilities, the extent and character of its liabilities ? What proportions shall be paid to the creditors ? In the account presented there is no list, no classification of debts, no proposed distribution of funds between said creditors.

It is manifest that the judgment which homologates said account may work an irreparable injury to the city, and against the effects of that judgment the city could protect its interest either by an action of nullity or by appeal. That judgment, though erroneous, does exist, may be complied with, or executed. As an account, the paper ñlod by tlio administrator has no legal existence. It docs not even allow a credit of five hundred, dollars paid by the administrator to Billgery on the thirtieth of August, 1876. It is not merely irregular and incorrect; it is absolutely incomplete.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is hereby annulled, avoided, and reversed at costs of appellee.

It is further ordered that the rights of the parties to this suit are specially reserved.