author: Pociut, J.

text:
    No. 9906.
    Sallie E. Burns vs. George W. Thompson.—Heirs of Gee, Intervenors.
    Lands purchased in tlie name of tlie wile, and paid partly with her paraphernal funds under the administration of the husband, and partly with funds of the community, fall into the community.
    In a suit for dissolution of the community by the wife, an allegation of the wile claiming the funds thus invested, as her paraphernal funds, will debar her of the right to claim the lands in question as her paraphernal property.
    She cannot be allowed to claim at the same time the price and the thing, and will be held to that part of her pleadings in which she corrects an error in previous pleadings, in which she had omitted to claim these paraphernal funds. Property purchased during the community, in. the name of the wife, will be treated as community property until proof is made by the wife to show that it was purchased for her own account and with her paraphernal funds, of which she had retained the administration. Mere recitals in the acts to that effect amount to no presumption m her favor.
    The wife has the right of demanding the administration of the paraphernal property previously confided to her husband whenever she chooses, and such a demand must not be confounded with the action for the dissolution of the community.
    The husband who has the administration of the wife’s paraphernal funds owes no interest thereon before the dissolution of the community, or before the wife has obtained a judgment for the restitution of her separate funds.
    As a general rule husbands and wives are incapacitated from contracting with each other during marriage, save in exceptional cases enumerated in Art. 2446 Civil Code. Hence, they cannot, by contract, bind the husband to pay interest on, or create a mortgage to-secure the paraphernal funds of the wife, when none are due or exist under the law. But the inscription of such an act will he considered as that of an authentic declaration of the husband touching the paraphernal funds received by him, for his wife, and effect will be given to it as notice, but not as a contract.
    A dation en gaiement by the husband to the wife, on the score of detailed indebtedness from him to her, cannot.stand in the face of proof that the indebtedness as therein described did not exist.
    APPEAL from tlie Eleventh District Court, parish of Natchitoches • Pierson, J.

      Jaclc & Pismuhes, for Plaintiff and Appellant.

      Scarborough & Oarver, for Intervenors and Appellees.
   The opinion of the Court was delivered by

Pociut, J.

Plaintiff sues her husband for a dissolution of the community, and to recover a moneyed judgment for about $20,000, in restitution of her paraphernal funds alleged to have been received by her husband and converted to his own use and benefit; the moneyed judgment to be credited with the sum of $7,635, received by the wife through a transfer of property made to her by the husband as a elation en paiement on the 14th of November, 1883.

As usual, in such cases, the contest is exclusively between the wife and her husband’s creditors, several of whom had intervened in this case, as judgment creditors, for the purpose of resisting plaintiff’s demand, which is qualified as a fraudulent scheme to screen the husband’s property from the pursuit of his bona fide creditors, and as entirely unfounded. Intervenors charge the dation en jpaiement of November 14, 1883, to be fraudulent, and pray for a declaration of its nullity.

The district court rejected plaintiff’s entire demand, without prejudice to her rights of ownership of property transferred to her through the dation enpaiement of November 14, 1883.

Plaintiff appeals, and int.ervenors pray for an amendment of the judgment, with a view to a decree annulling the dation en peviement aforesaid.

To properly understand this complicated litigation, which is contained in a petition, two supplemental petitions hy plaintiff, two petitions of intervention, an immense collection of documentary evidence,, a mass of parol testimony, all contributing to fill two large transcripts, followed by a discussion in immense briefs, a review of the salient features of the very complicated pleading and of the principal tacts in the record must precede a discussion of the issues and of the law of the case.

In her first petition plaintiff sets up two distinct amounts of pai aphernal funds received and used by her husband, one of $5000 accruingfrom the succession of her mother, and the other of $8600, as the proceeds of the sale of her interest in a piece of paraphernal property sold by her; with interest thereon at 8 per cent per annum from January 1,1866 on the first term, and on the other from November 1, 1871, subject to a credit of $7635 as hereinabove stated.

In her first supplemental petition she charges her husband with the additional sum of $1847.24, as her share in her mother’s judgment against her father, which sum went into the hands of her husband as administrator of her mother’s succession, and was retained by him as her husband. She then charges her husband with the receipt of various and large amounts of money aggregating $14,090, as the proceeds of sale of different tracts of land, her paraphernal property, and she prays “for further judgments for the additional amounts” which she has just disclosed.

In her second supplemental petition she adopts with certain modifications her previous pleadings, and makes the following singular avowal:

She avers that, at the time she filed her original petition, * * she was not fully and truly advised of the exact nature and extent of her rights and claims against her husband. * * She now avers that she is prepared to state individually and definitely the nature, origin and amounts of her paraphernal funds and effects received, used and alienated by her said husband, for his own use and behoof.” * *

She then substantially reiterates, but with greater precision, the averments and recitals contained in her first supplemental petition. In connection with the sum of $1847.24 accruing to her from her mother’s succession, as shown by the account of administration presented by her husband, she avers as follows : “ Her husband receiving and retaining, as stated in said tableau, $1847.24 for and on account of your petitioner, which be thereafter used and appropriated, as will be hereafter more fully stated and shown.”

In that petition she also sets up that she inherited in November, 1866, from the succession of one. of her sisters, who had died without issue, a certain quantity of land and also the sum of $125 accruing to her from that succession as a result of a compromise between herself and her co-heirs touching that inheritance, which sum was likewise received, used and appropriated by her husband. And that petition also concludes with a prayer for additional claims as therein disclosed.

The necessity and importance of these details of pleadings will be felt further on in the course of the discussion.

Now the salient and controlling fact in the case is that the only sources from which plaintiff has derived all her paraphernal property and funds, are mainly the succession of her mother, and incidentally that of her sister, Cornelia L. Bruns.

When the mother died, in November, 1865, she had a suit pending against her husband for a moneyed judgment of some $14,000. After her death, the suit was prosecuted to judgment by Thompson, the defendant herein, who had become the administrator of her succession, and in execution thereof, lands of the husband in the parishes of Bossier and Natchitoches were seized and sold, four of ¡the five heirs of the deceased Mrs. W. M. Burns, including plaintiff, becoming the adjudicatees.

The proceeds of these two sales added to the unpaid balance of the judgment which was divided in kind between the heirs, and subsequently bought by one of them, made up all the assets of the deceased and amounted together to $12,643.96.

From the account of administration filed in August, 1867, it appears that, after deducting debts and law charges, the share accruing to each of the five heirs was $1,849.24, and that plaintiff’s share was received by her husband.

That succession owned no lands; hence it follows that the lands acquired by the heirs of Mrs. W. M. Burns, at the two sheriff’s sales in the parishes of Bossier and Natchitoches, did not become their property as their heritable shares in said lands, but simply as any other purchasers at a forced sale.

It is nowhere alleged in either of the three petitions that plaintiff used her paraphernal funds inherited from her mother’s succession as above set forth, for the payment protanto of the lands which were adjudicated to her at the sheriff’s sales; while the reverse may be reasonably inferred from her silence on the subject, coupled with her husband’s official declaration as administrator, that he had received and retained the funds accruing to his wife.

According to the theory of plaintiff’s case, as developed by her counsel on appeal, her purchase of one-fourth of the lands was for her separate benefit, as an investment of her paraphernal funds accruing to her under the execution of her mother’s judgment as above recited.

Hence they claim the proceeds of the sales of those lands subsequently made, and amounting together to upward of $2,000 as her paraphernal funds received at each sale, and afterwards used by her husband.

That contention presents the pivotal question in the case.

The proposition advanced by intervenors is to the effect that the adjudication, although in the name of the wife, vested the title to the lands in the community of acquets and gains existing between the spouses. They invoke the familiar rule enunciated in Article 2402 of the Civil Code, and solidly crystalized in our jurisprudence: that the community consists of the estates which the spouses “may acquire during the marriage or by purchase, or in any other similar way, even although the purchase be in the name of one of the two, and not of both, because, in that case, the period of time when the purchase is made is alone attended to, and not the person who made the purchase.”

They concede the easily discerned exceptions to the general rule, recognized in jurisprudence, in favor of purchases by the wife in her own name and right, when made with her paraphernal funds of which she had retained the administration. But they argue that the burden of proof is on the wife to rebut or destroy the legal presumption existing in favor of the community, and to show, affirmatively, the existence of all the features and elements required by law to shield her claim from the application of the general rule.

And they finally urge that the record in this case contains no proof to justify plaintiff’s claim that the adjudications of February 3, 1866, by the two sheriffs, characterized her purchase as one for the benefit of her separate account.

Our study of the case has led us to the same conclusion. Pearson vs. Pearson, 15 Ann. 319.

Erery feature of the transaction, save the fact that the adjudication was made in the name of the wife, and the additional circumstance that she was entitled to one-fifth of the proceeds of the sale, strongly characterizes the purchase as one made for the account and benefit of the community.

' While only one-fiftli of the proceeds accrued to her, the adjudication to her was for one fourth of the lands; and her interest in the excess of the judgment over the proceeds realized by the execution was not sufficient to meet her share of the contribution to pay out the heir who did not join in the sale, to satisfy a concurrent judgment in the sum of $1040 and taxes and law-charges. Hence, the debits against her oil account of the adjudication exceeded her heritable share by $696 26. And the sheriffs’ returns show that the full amounts of the two adjudications were paid in cash. In his account the administrator (the defendant herein) charges himself with the proceeds of the two adjudications, and he credits himself with the share accruing to his wife, as retained by him for her account.

But the real intent of the wife as to the true character of the transaction is best illustrated by her pleadings m this very suit. We must remember here that it appears nowhere in the record, and it is not •even pretended by Mrs. Thompson that she ever inherited any money or property from any source beyond her share in her mother’s succession, including the inheritance from her sister, and that all her alleged acquisitions and subsequent gains must be traced to that only source. Now, in all three of her petitions, she charges her husband with “$5000 or more collected and received by him from the succession of her deceased mother, Charlotte McDaniel, wife of Wm. M. Bums, on or •about the first day of January, 1866;” and judgment for that specific sum is prayed for in each of the three petitions.

But it appears that in subsequent reseaiches, plaintiff and her counsel were confronted with the account of administration of her mother’s •succession, and herein above referred to; hence, reference is made to her share as disclosed by that account in the two supplemental petitions, and in each the item of $1847 24 is added to the list of her husband’s indebtedness to her, and in each, prayer is made for the increase •of the judgment pro tanto.

We note the argument of her counsel that the allegation in which •that sum is claimed as her paraphernal funds received by her husband, was made through error of fact, and that therefore plaintiff should not be subjected to its destructive effect. C. C.2291.

But the very reverse is the precise state of the case. The manifest •error in her pleadings was the loose charge of $5000 alleged to have been collected from the mother’s succession by the defendant Thompson, and the very apparent object of the two supplemental petitions was to rectify that error, and to include in the pleadings a statement •of the true condition of that succession as shown by authentic records which would otherwise have been brought to light with damaging-effect by the dreaded judgment creditors of the husband. It was that very necessity which forced from plaintiff the significant avowal of ■error to which we referred, and which we transcribed, in the early part of this opinion. Can she now be heard to say through her counsel, on appeal and not before, and as an argument, that her strained ■effort in a supplemental petition to correct an error was itself an error of fact? If such a rule could prevail, it would be next to impossible to hold any party to his pleadings, and the formality of pleadings could then be obviated and in its wake would follow, in mournful procession, ■all the rules of practice hitherto indispensable to a proper administration of justice.

A similar declaration is made in the act of transfer as a elation en judgment in November, 1883, and also in the sworn declaration of the husband for registry in the mortgage office, under date of November 9, 1885.

All these documents were offered in evidence by plaintiff herself, and together with her pleadings they contribute to make up a record from which there is no escape for her.

It is worthy of note that during the whole trial she never made the ■slightest effort or attempt to prove up the allegation that her husband had received “ $5000 or more ” for her from the succession of her mother on the 1st of January, 1866, or at any other time, or that she had received any other funds from the succession of her mother, at ■any time, over and above her heritable share of $1847 24, as shown by her husband’s account of administration, presented in August, 1867.

The uncontradicted proof admits, therefore, of no other conclusion but that the purchase of the lands adjudicated to plaintiff on the 3d •of February, 1866, enured to the benefit of the community, and that •all the profits subsequently realized from the various sales made by the spouses of the lands thus acquired, and from the reinvestment of the proceeds of such sales, as well as the profits realized from such re-investments, as shown in the record, likewise tell into the community. Hence they are not elements of indebtedness on the part of the husband to the wife. Marshall vs. Mullen, 3 Rob. 828; Fisher vs. Gordy, 2 Ann. 762; Pearson vs. Pearson, 15 Ann. 119; Shaw vs. Hill, 20 Ann. 531; Pinard vs. Holton, 30 Ann. 169; Sentmanat vs. Soule, 33 Ann. 612; Bachino vs. Coste, 35 Ann. 570. The theory of the case, which has been impressed upon our minds as flowing naturally from this established proposition, is that the husband as head and master of the community, became the true and legal owner of the one-fourth of the lands sold under execution of the judgment of Mrs. W. M. Burns against her husband, and that he became indebted to his wife in the sum of $1847 24, her heritable share in the purchase price of the lands and of the remnant of the judgment.

The argument that he could not purchase at the sale, because he was administrator of the succession, is fallacious. Tiie inhibition of the law m such cases has reference to property, movable and immovable, intrusted to his administration. C. C. 1146. The lands which Thompson is held to have purchased did not belong to the succession which he administered, and had not, therefore, been intrusted to his administration.

Thompson is further indebted to his wife in the sum of $125, received for her account from the succession of her sister, C. L. Burns, and for such amount as may have been received by him out of the proceeds of the sale of the portions of land inherited by his wife from her said sister. The record affords ho satisfactory information on that score, hence we can make no final disposition of that item of their accounts. Her right to make proof thereof is reserved to her.

We now reach the point at which we differ from our learned brother of the District Court, in his reasons for declining any relief to plaintiff, under her prayer for the restitution of her paraphernal property, as well as for the dissolution of the community. It is settled as one of the landmarks of our jurisprudence that the wife has the right of demanding the administration of her paraphernal property, previously confided to her husband, whenever she chooses. C. C. Arts. 2387, 2391, Irby vs. Weber, 35 Ann. 808, and authorities cited. In this case the demand is cumulative, and it includes also the action provided for in Article 2425 of the Civil Code, for a separation of property. We find the evidence sufficient to entitle her to both reliefs.

It is true that in these pleadings intervenors deny the alleged disorder of the husband’s affairs, and on trial they made an effort to show his solvent condition. But the very fact of their intervention is, to our minds, the best proof of the disorder of Thompson’s affairs, as sufficiently dangerous at least to alarm his judgment creditors. If Thompson is not only solvent, but, as they allege, actually wealthy, why should they have been concerned about the business or moneyed transactions which had been projected between himself and his wife, or the litigation which she had begun against him? The answer to that question is the danger to which their judgments were exposed for fear of not finding sufficient and available property for the satisfaction thereof. And, after all, these intervenors have no interest to regulate the question of the dissolution of the community vel non between Thompson and his wife. The utmost extent of their concern in the affairs of these spouses, is to restrict the moneyed judgment which the wife may obtain against the husband within legal limits, and to uncover as much of the husband’s property as may be necessary to satisfy their just demands. As already stated, we find that the wife is entitled to judgment against her husband in the sum of $1847 24, received from the succession of her mother, and in the additional sum of $125 inherited from the succession of her sister.

But we cannot favorably consider her prayer for interest at the rate of 8 per cent per annum from the respective dates at which the sums were received by the husband.

Having found from the record that the husband had received, and had the administration of, the wife’s paraphernal funds, we conclude under the law that the fruits of her paraphernal property belonged to the community and that therefore the husband owes no interest before the date of the judgment, which will dissolve the community. C. C. art. 2386; Rowley vs. Rowley, 19 La. 581; Succession of Weldon, 36 Ann. 851.

The claim of interest, and at the rate of 8 per cent per annum, as well as a mortgage by agreement of parties, is predicated on an instrument purporting to be an act of conventional mortgage, executed between the husband and his wife on the 21st of February, 1883, and recorded in the mortgage office on the same day.

We hold that, as a contract, the act in question is simply a prohibited nullity, and that as such it created no obligation on the part of the husband to pay interest at any rate, and that it could create no mortgage, if none existed under the operation of law, irrespective of the will or act of the parties to the instrument.

The general rule of law, as clearly enunciated in article 1790 of our Civil Code, is that husbands and wives are absolutely incapacitated from contracting together; the only exception being contained in Article 2446 of the Code which enumerates the circumstances under whicli they may participate in contracts of sale from one to the other.

But the plaintiff contends that even if the act be stripped of all effect as a contract, due consideration must be given to its inscription, as notice of the tacit mortgage which, under the law results from the recitals therein contained.

On inspection, it appears that the act does contain the statement by the husband of large amounts received and appropriated by him, of the paraphernal funds of his wife.

Under the provisions of section 1 of Act No. 95 of 1869, which was intended to carry into effect article 123 of the Constitution of 1868, concerning the inscription of legal or tacit mortgages, the husband is authorized to make a written statement of the facts and circumstances under which.the wife may have acquired claims against him, for the purpose of inscription. But as the law requires the statement to be sworn to, the question arises whether the husband’s statement in this case, which is not sworn to, but is made in an authentic form before a notary public and in the presence of two witnesses, would be a compliance with the law, or would have the same effect as the inscription of the sworn statement described in the act.

Considering that the only effect attributed by the law to such an inscription, is notice; and that the instrument when recorded, “shall in no manner be evidence of the validity of the debt or claim, other than the law may award to acts of the kind unrecorded; (section 10, Act 95 of 1869); and that the difference for the purposes of notice by inscription, between a sworn and an authentic declaration, is not easily discernible, wo feel justified to hold that the inscription of the act of February 21, 1883, as an authentic statement of Thompson that he had received paraphernal funds of his wife in a sum of $5000, is sufficient as a notice that his wife had a paraphernal claim- against him, the real amount and the correct date of its receipt and other facts and circumstances connected therewith being left to proof aliunde, when the time came for the enforcement of the mortgage. Hence, as notice and for no other purpose, the declaration is entitled to legal considertion.

Our jurisprudence has always recognized a broad distinction in law between the effect of registry of an act, as to notice, and the effect of such an act as proof of the contract which it purports to evidence. Allen, West & Bush vs. Whetstone, 35 Ann. 847; Stallcup vs. Pyron, 33 Ann. 1249, and authorities therein cited.

In construing the effect of inscriptions made under the provisions of the Act of 1869, this Court held that, for the purposes of notice the inscription of a tutor’s affidavit of the amount which he owed to his ward was sufficient, although the law required the inscription of an abstract of the inventory. Broussard vs. Segura, 35 Ann. 912.

We shall therefore give effect to plaintiff’s mortgage from February 21, 1883, on the amount which we have found in her favor, as above stated.

The only question now remaining for discussion is the alleged nullity of the dation en paiement of Thompson to his wife under date of November 14,1883.

The consideration of the transfer therein made to the wife of propertyvalned at $7635, consists of the admitted indebtedness of the husband in the sum of $5000 for paraphernal funds received on January 1, 1866, and in the additional sum of $8600 as proceeds of a sale of a plantation represented to be the separate property of the wife, sold to B. F. Harrison in November, 1871.

Prom the record it appears that Thompson and his wife owned together one undivided half of that plantation acquired as follows: by the two jointly eleven-thirty-seconds, and by Thompson .alone iivethirty-seconds.

The record does not show that the payment attributed to the wife was made with her paraphernal funds of which she had retained the administration. It appears to our satisfaction that the funds thus disbursed as hers proceeded from the sale of the lands which had been purchased in her name at the sale in execution of her mother’s judgment, and those funds have been shown to belong to the community.

That the property thus purchased in the joint name of the two spouses fell into the community is a question not open to discussion under our system. C. C. 2334; Rouse et al. vs. Wheeler, 4 Robinson 114; Tally vs. Steffner, 29 Ann. 583. Hence it Was no debt from the husband.

In reference to the sum of $5000 of alleged paraphernal funds which foimed part of the consideration of the pretended sale, we have already shown m another part of this opinion that no such claim ever existed, and that no attempt was even made on trial to prove its existence. It follows therefore that there was no consideration, such as was made the basis of the act, in the minds of the parties for the so-called dation en paiement, and hence it must fall as a nullity. Isaacson vs. Mentz et al., 33 Ann. 595; Chaffe vs. Scheen et al., 34 Ann. 688.

It is, therefore, ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed; and, proceeding-now to render such a judgment as, in our opinion, should have been rendered below, it is ordered, adjudged and decreed that plaintiff Sallie E. Burns do have and recover judgment against the defendant, George W. Thompson, in the sum of nineteen hundred and seventy-two dollars and twenty-four cents ($1972.24) with legal interest thereon from the date of this judgment, with recognition of a legal mortgage in her favor on all the immovable property of her said husband, to take effect from the 21st of February, 1883, restoring to her the administration of her separate and paraphernal property, and dissolving the community of acquets and gains heretofore existing between herself and her said husband, reserving her right to claim against her husband such additional sums as he may have received for her as the proceeds of sales of lands inherited by her from her sister, Cornelia L. Burns.

And it is further ordered that the act of transfer as a dation en paiement from Gr. W. Thompson to his wife, plaintiff herein, under date of November 14,1883, be declared to be null and void, and that it be set aside. All costs to be paid by the Defendant G-. W .'Thompson.

Mr. Justice Watkins recuses himself, having been of couusel.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 9921.
    In the Matter of the Estates of Zenon and Elize Labauve.— Account of Administrator and Opposition Thereto.
    In a partition of lands between two joint proprietors, a plantation falls to the share of one of them, burdened with a special mortgage in favor of the Citizens’ Bank. In the act of partition there is an acknowledgment of this debt, and a stipulation that each shall be equally responsible for it, and also of mutual warranty. Such stipulations do not entitle the survivor of the contracting i>arties (or his heirs) to claim from the succession of the other the payment of one-half of the mortgage debt, when no eviction or disturbances has been suffered on account of the encumbrance; and where the debt is only pay able through a long series of years, and no part of it has been paid by the party asserting the claim against the succession.
    A judgment directing a payment to an heir out of the succession funds in the hands of the administrator, on account of the heirs’ interest in the succession is erroneous, where in the same judgment the credits claimed by the administrator in his account for payments made to the other heirs are stricken therefrom, and remitted for adjustment to the partition. The claims of all the heirs should have been thus dealt with.
    Where there is a conflict of testimony touching attorney’s fees, and the testimony and the record du not afford sufficient information to enable the court to estimate them, the judg ment of the lower court thereon will not be disturbed.
    APPEAL from the Twenty-third. District Court, Parish of Iberville. Bils, Judge ad hoc.

      A. Talbot and J. O. Nixon, Jr., for the Administrator.

      Samvel Matthews, Alex. Hébert and Thos. IS. Grace, and David N Barrow for the Opponents.
   The opinion of the Court was delivered by

Todd, J.

I.

Opposition of the Heirs of Hotard.

Zenon Labauve and Alexander Hotard were once joint owners of lands in the parish of Iberville. They made a partition of the same

One of the plantations that fell to Hotard in the partition, was encumbered with a mortgage in favor of the Citizens’ Bank. In the act of partition, it was stipulated with respect to this mortgage as follows :

The parties hereto remain equally responsible to the Citizens’ Bank of Louisiana for the debt and mortgage contracted by Robert Brent, and which they assumed.” The act also contained a reciprocal warranty.

The administrator’s account made no mention of any liability of Labauve’s succession to the Hotard heirs, resulting from this partition, or any of its stipulations. They, the heirs, opposed the account and asked to be paid out of the funds in the hands of the administrator, one-half the amount of this mortgage debt, claiming to be entitled to it under the obligation incurred by Labauve from the foregoing clause in the act of partition, and the express warranty contained in the act.

The judge a quo dismissed the opposition on the ground that the action was premature, and the opponents have appealed.

The clause in question evidences no personal obligation on the part of Labauve to Hotard. It is only an acknowledgment of a joint debt to the bank and a recognition of the mortgage securing it, which acknowledgment added nothing to the force and effect of the mortgage.

The nature of the obligation resulting from the warranty of partition ” is best described in the Code itself.

Article 1384. The co-heirs remain respectively bound to warrant one to the other the property falling to each of their shares against the disturbance and eviction which they may.suffer, when the disturbance or eviction proceeds from a cause anterior to the partition.

Article 1388 (1425). But the indemnity is only for the sum for which the obj.ect has been given by the partition to the heir who has suffered the eviction, and for the proportion which each of the heirs is bound to contribute, the amount of Ms own portion being extinguished by confusion; and the heir in this case has no right to claim remuneration from his co-heirs for any damages which he may have suffered by the eviction.

Article 139G (1433). The action of warranty among co-heirs is prescribed by five years, and the time commences to run, to wit: for the property included in the partition, from the day of the eviction, etc. ■

It will appear from these articles that the warranty in such case is against a disturbance of possession or eviction from the premises. The obligation of the warrantor relates alone to these contingencies.

It is equally evident that an action or claim in warranty arises only on the happening of one of these events — disturbance or eviction.

It is not pretended in this ease that any disturbance or eviction lias taken place with respect to this land, and no threat of either is shown.

The counsel for opponents contend, however, that their right of action is not governed by the law relating to warranty, but under the stipulations of the act of partition in this case, is to be determined by the rules and principles relating to suretyship. He is mistaken. Suretyship has no bearing on the questions involved in this controversy. There is no evidence in the record that these opponents or their ancestor have ever paid any portion of this mortgage debt.

Besides, from the nature of this debt, being a stock mortgage, the whole of it would not become exigible for a long series of years. Act 45 of 1873.

For these reasons the judge properly held that opponents’ demand was premature.

II.

Another opposition was that of Oscar Adolphe Lauve. In the account appear several items for payments made by the administrator to some of the heirs. This opponent complained that he had received nothing from the succession, and that to the other heirs had been advanced the full amounts, or even more than the sums they were legally entitled to receive. The judge a quo, believing that this complaint was just, decreed that the balance of certain funds of the succession, after the payment of the creditors, should be paid over to this opponent with a reservation of any further rights to be adjusted in the final partition. It appears, however, that these very items for payment made to the other heirs were, on opposition, stricken from the account, and the amount paid- decreed to be as still in the hands of the administrator, to be settled between him and the heirs, so favored, in the final partition. Considering this ruling as to these other heirs, it was not proper that this opponent should be paid immediately out of the funds in the hands of the administrator, but that his claim, like those of the other heirs, should have been also remitted for settlement to the final partition.

This proceeding was simply an administrator’s account and opposition thereto. It was not a proceeding in partition, and it was not the time for the adjustment of the questions relating to the distributive shares of the heirs and the collections to be made by them, but those questions, in their entirety, should have been relegated to the partition, as was done with respect to the other heirs. The decree must be corrected in this respect.

ITT-

There is an appeal from the judgment on the account by Messrs. Talbot and J. O. Nixon, attorneys at law, with regard to their fees for professional services rendered the succession. The amounts allowed them by the judgment was $1888. They claim an additional sum.

There is a conflict of testimony in this matter — a conflict between prominent members of the bar, whose statements are entitled to equal respect, from their worth, experience and ability. We have carefully considered this evidence, and likewise examined the record for further light on this subject, but it does not afford us sufficient information touching the services rendered, or of the character of the proceedings in which they were rendered, to satisfy us that the conclusion reached by the court a qua, with respect to these charges, was erroneous.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court, so far as it sustains the opposition of Oscar Adolph Lauve, and orders a payment to him by the administrator, out of the funds named in the decree, be annulled, avoided and reversed, reserving the rights of this opponent to this fund and all other rights against the successions for settlement, and allowance in the final partitions of the successions among the heirs, and with this exception and m all other respects, the judgment of the lower court be affirmed, the said Oscar Adolph Labauve to pay the costs of his opposition in both courts.


author: Fenner, J.

text:
    No. 9806.
    Mrs. Rebecca Felix vs. O. V. Wagner, Sheriff, et als.
    The Act No. 38 of 1856 provided a peculiar system oí government for the parish of Jefferson, under which the various corporations composing the parish, and not therein named, were to be represented on a parish committee which were to apportion the general parish expenses between the several coiporations, and the latter were to pay the same ouof the funds raised by the exercise of their own powers of taxation.
    When, subsequently, the city of Kenner was incorporated and vested with taxing and other municipal powers, it became one of the “corporations composing the parish of Jeffert son," and fell under the operation of the Act of 1856, by the effect whereof she was entitled to representation in the parish committee, and to pay her share of general expenses through the assessment of that committee and without direct paVochial taxation.
    Such has been the construction of the law after its passage. The city of Keuner has never been awarded representation on the police jury, but has been excluded therefrom; and has been always recognized as entitled to representation on the parish committee and subject to its assessments, which have been annually made.
    Acts No. 58 of 3874 and No. 119 of 1884, exhibit a similar interpretation of the law.
    The power assumed by the police jury, on which Kenner was not represented, in 1878 and subsequent years to levy direct taxes on ICenner, while she was, at the same time, subjected to assessments by the parish committee, cannot be supported. It would involve taxation without representation and the imposition of double burden, besides contravening the law of the State as interpreted by the parochial authorities, by the Legislature of the State and by the local judge of the district.
    This ca.se does not fall within the general rule that incorporated towns, in absence of special legislative exemption, are subject to police jury taxation, whioh is not abraded.
    APPEAL from the Twenty-sixth Distriet Court, Parish of Jefferson. Host, J.

      J. I). House and A. B. Billings for Plaintiff and Appellee.

      B. O. Blliott and Titos. O. W. Bilis for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

The issue in this case is whether or not the late police jury of the parish of Jefferson, left bank, had authority to impose and collect taxes upon the property of plaintiff, situated in the town of Kenner, which taxes said police jury assumed to levy during the years 1877, 1878, 1880, 1881, and 1882.

Under the parochial system prevalent in this State, the powers of government have generally been confided to bodies known as police juries, having jurisdiction over the entire territories of the parishes.

But for nearly half a century, the parish of Jefferson has been an exception to this general rule.

Prior to 1845 the whole parish was subject to the jurisdiction of a single police jury; but, in subsequent years two municipal corporations were created from its territory, viz : Carrollton and the city of Jefferson, both of which were expressly exempted from police jury control.

Under these conditions, in 1856, the legislature adopted the Act No. 138 of that year, entitled “An act authorizing the appointment of a parish committee by the several corporations composing the parish of Jefferson.”

This act required the several corporations to appoint delegates, on a basis of representation therein fixed, to form a parish committee, and imposed upon this committee the duties “to determine and fix the jwo rata of contribution by each corporation towards defraying the expenditures which by law bear upon the whole parish, the ratio thus established to be based upon the proportion of State taxes assessed within the limits of each corporation ; 2d, to examine all bills or claims which may be set up against the parish and to report upon them to the several councils and police jury, who shall act finally thereupon.’

In 1858 there was a further division, of the territory into the right hank and left hank of the Mississippi, each of which was under the government of a separate police jury.

The act of 1856 continued in force and'has never, to this day, been repealed; and the parish committee authorized thereby has always discharged the functions therein directed. Act 107 of 1858.

In 1873 the town of Kenner was incorporated and vested with powers of taxation and other municipal powers. Act 71 of 1873.

The town was composed of territory which had theretofore been under the jurisdiction of the police jury of the left bank, and the charter contained no express exemption from parochial taxation or police jury control.

The general principle is undoubtedly well established that the incorporation of a town within the limits of a parish does not exempt the property and the inhabitants thereof from parochial taxation, unless such exemption is expressed in some legislative act. Cook vs. Dendinger, 38 Ann. 261; Iberia vs. Chiapella, 30 Ann. 1143; Benefield vs. Hines, 13 Ann. 420; Maurin vs. Smith, 20 Ann. 445.

But inasmuch as the act of 1856 continued in force, providing for “the appointment of a parish committee by the several corporations composing the parish of Jefferson,” and inasmuch as the then existing corporations were not named therein, it seems to have been assumed, and not without reason, that the mere creation of Kenner into a corporation vested with the taxing power, brought it within the operation of the act and of the system of parish government established thereby under which each corporation exercised exclusive powers of taxation within its own limits and contributed from the funds thus raised its pro rata of general parish expenses under the direction and control of the parish committee.

Hence we find that Kenner was recognized as entitled to representation on the parish committee and itsjpro rata of general parish expenses was regularly apportioned to it from year to year; and the police jury of the left bank never assumed to levy a tax on property in Kenner prior to 1878.

It further appears that in 1877, under the provisions of Act 57 of 1877, the police jury redistricted the left bank into wards, for the purpose, amongst others, of electing police jurors to represent the several wards, and Kenner was not included in any ward, and was not awarded and has never enjoyed any representation on the police jury.

In 1877, the police jury levied its tax on all property “not exempted by law,” and it is in evidence that such had been the forrii in previous years, and that the meaning and design of the exemption expressed was to exclude Kenner from the parish tax.

In 1878, the police jury levied its tax on “all property” without stating the above exemption.

In 1880 and subsequent years, the jury expressly levied the tax now claimed on property in the town of Kenner.

It does not appear whether any steps were ever taken to enforce this taxation; but it is shown that during all these years, Kenner had no representation on the police jury, and that the parish committee continued to recognize Kenner as entitled to representation therein, and continued to assess against her a proportion of general parish expenses to be paid out of the taxes levied by the corporation, precisely as in the case of the other corporations composing the parish.

The exclusion of Kenner from representation on the police jury and her inclusion in the parish committee and her assessment therein, are entirely inconsistent with the power claimed of subjecting her to direct police jury taxation; for the first involved taxation without representation, and the last subjected her to double burdens.

The legislative interpretation of the law seems to have been of similar import. The Act No. 58 of 1874, in providing for the construction of a road in the left bank of the parish, recognized the police jury of the left bank, the city of Carrollton and the town of Kenner, as independent corporations, and required each of them, separately, to pass the necessary ordinances and to levy the requisite taxes for the payment thereof, thus placing Kenner on the same footing with Carrollton.

Again, the Act No. 119 of 1884, which abolished the duplex police jury system and placed the right and left banks under the control of a single police jury, does not repeal the act of 1856, and seems to recognize the independence of Kenner and its exemption from direct parochial taxation, because, in dividing the territory subject to the new police jury into wards, it excludes the city of Kenner.

Finally, the judge a quo, who presides over the district, in an able opinion, reaches the same conclusion.

Confronted with this clear, customary, legislative and judicial construction of the effect of these laws, with the strong reasons by which it is supported, and with the manifest injustice which would result from subjecting Kenner to these taxes which have been levied by a body in which she has had no representation, and which, if enforced, would subject her to burdens which have already been imposed on her by the parish committee, in a different form, we feel bound to affirm the judgment appealed from.

Judgment affirmed.


author: Watkins, J.

text:
    No. 9926.
    The State ex rel. Isidore Newman, Sr. vs. The Funding Board under Act No. 104 of 1880.
    Tlie constitutional ordinance for the relief of delinquent tax payers, which authorizes the funding of Auditor’s warrant in baby bonds, only grants to the warrant bolder the option of having bis wnrrants exchanged for bonds to be exercised prior to the date therein lixed for their maturity.
    The power conferred upon the Funding Board continues subsequent to that date for the sole purpose of examining, auditing and funding nunc pro tunc such warrants as shall have been presented to them or to some officer of the board antecedent to that date.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Burgess, J.

      Kennard, Howe & Prentiss for the Relator aud Appellee.

      M. J. Cunningham, Attorney General, for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

This is an application for a writ of mandamus, to compel the respondent board to execute and perform their official duty, under the constitutional ordinance for the relief of delinquent taxpayers, by funding relator’s warrants in three per cent five dollar bonds, as provided by said ordinance and law.

Relator shows that of the total amount of warrants, the sum of $394.80 were received by the respondent hoard on March 17, 1884; $624.51 on November 20, 1885; and $1052.06 on May 24, 1886.

That while the hoard concedes the validity of the warrants and that they are of a class fundable under the ordinance and the law, they decline to proceed to examine, endorse and exchange same for said three per cent bonds, on the ground that they can no longer act under said ordinance and law;

Resistance is made by tlie respondent board on the ground that, under the ordinance and the law, it was contemplated that said board should be of only temporary duration; and no meeting thereof has been held during the current term of office of its members, except the one of October 26, 1886, whereat they adopted a resolution, in which they declared it to he their opinion that they had no further power to act as such funding board; that they had no right or power to issue past due bonds; that the law never contemplated or authorized such action; that their predecessors acted for the full period contemplated and authorized by said ordinance and act; and that the relator should have exercised his rights prior to the 1st of January, 1886, and by his failure so to do, his right has lapsed.

In the alternative, they aver that, if said board is still in existence, and the power is still in force, they cannot be compelled by mandamus to declare and endorse as valid the relator’s warrants — an act within their legal discretion, after having examined them.

The ordinance in question provides that “any valid Auditor’s war' rants outstanding at the date of the adoption of the Constitution * * may be funded in bonds of the denomination of five dollars, with interest coupons attached thereto, at the rate of three per cent per annwn from the 1st day of July, 1880. The said bonds to be due and payable six years from the 1st day of January, 1880; the said coupons being payable at the State Treasury on the first of February and August of each year.”

The ordinance contains no other restriction upon the issuance of such bonds.

The statute providing for the funding of certain warrants and obligations, in pursuance of that ordinance, creates the board and designates the powers that are conferred upon them.

Section 1 of that act confers upon the board the power to fund all Auditor’s warrants which they shall find to be valid, and which are declared to be fundable by constitutional ordinance.

It directs the board “to proceed, within sixty daps from the promulgation of the act and after thirty days public advertisement, to fund said Auditor’s warrants.”

Neither the ordinance nor the statute has fixed any precise date at i which the board shall cease funding warrants therein specified. The argument of the relator is that the respondents seek to have the court establish a period of prescription unknown to the law. The failure of I the argument is in mistaking his recourse against the respondent board for an action.

It is, at most, only an option given to the warrant holder, whereby | he may obtain bonds of a certain description in exchange tor Auditor’s! warrants. If not in express terms, it was the implied intention of the! framers of the ordinance that this option should be exercised by warrant holders prior to the date therein fixed for the maturity of the| bonds to be issued in exchange for them.

The power conferred upon the board is, only in a restricted sense, a| continuing one, and solely for the purpose of auditing and funding,! nunc pro tunc, such warrants as shall have been presented to the board or its officers antecedent to the 1st of January, 1886.

Prom the evidence it appears that, of the total amount of the relators’ warrants, the sum of $394.80, were received by the Auditor on the 17th of March, 1884, and the sum of $624.51 on November 20, 1885; hence he is entitled to have the board examine them, and if ascertained to be fundable, in conformity with the ordinance and the law, to have given him bonds in exchange therefor.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be amended so as to make the writ of mandamus peremptory only in respect to relator’s warrants, aggregating $394.80, that were presented to the Auditor on the 17th of March, 1884, and those aggregating $624.51 that were presented on November 20, 1885; and that, when same are issued, said bonds shall bear the respective dates of their presentation, with maturity and interest according to law.

It is further ordered, adjudged and decreed that, in all other respects, said judgment is reversed.


author: Bermudez, C. J.

text:
    No. 9723.
    H. J. Mullan vs. His Creditors.
    Act 33 of 1870, fixing fees of appraisers in succession cases, does not apply to fees ot experts in insolvencies, which are to be allowed on the basis of qucmtum meruit. Where the allowance is fair and reasonable, it will not be increased-
    Tax bills in the usual forms are presumptive evidence of the assessment and of the claim.
    A taxpayer cannot complain of the disparity between the bills and the assessor’s certificate, where the amount on which the tax is claimed is less than that mentioned in the certificate.
    Payment by preference out of the proceeds of an insolvent’s movable property, of taxes on personal property, is iightfully ordered when the proceeds of such property does not include those of his real estate.
    Article 177 of the Constitution dispenses from the registration of liens on movable property. The payment of taxes on personal property is secured without registry.
    Prescription urged in argument will not be considered when not pleaded below or on appeal.
    Objections to the allowance of interest for years previous to the existence of the debt, have no force when the date fixed is a clerical error, which might have been corrected, if found in the original judgment, by simply calling the judge’s attention to it. The judgment creditor cannot iusist on an interest which he has not claimed.
    Attorneys’ fees, stipulated in a mortgage act in case of non-payment of the debt at maturity, are due when the mortgagee is bound to employ counsel to collect his. claim, and such counsel represents him in the insolvency proceedings.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      W. 8. Benedict and J. O. Nixon, Jr., for the Syndic.

      Nieholls & Gem-roll, W. 3. Rogers, City Attorney, J. Ward Gurley, Jr., and Rrauglm, Buck, JDinkelspiel & Hart, for tlie Opponents.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an appeal from a judgment amending the syndic’s account.

I.

The district .court allowed the, experts appointed to appraise the hardware to be inventoried, the sum of $300. While these claim that they ought to have been allowed double that amount, it is urged that they are not entitled to more than $4 per day, which would reduce the allowance, by about one-third.

In support of that position, reference is made to the law of 1870, (Act No. 33, p. 66), relative to' appraisers in succession matters.

That law does not apply to insolvencj" proceedings. Had the legislature intended to extend its provisions to cases of insolvencies, it would have, and it has not, said so.

The present case does not come within the provisions of that aof, which is simply in pari materia.

Besides, the appraisers, whose competency was of importance in such matter, putting an evaluation on hardware, had to be and were men of experience, specially qualified in the business, who, as a rule, are not to be renumerated at the same rate that ordinary appraisers usually are.

The services rendered may be deemed as those of experts and may be compensated on the basis of (quantum meruit.

‘ We think the allowance made by .the district judge as fair and reasonable and will not increase it.

II.

The opposition of the city of New Orleans for taxes was properly maintained.

The syndic objects to their payment on several grounds, which relate to the form of the bills of taxes, to the mode of assessment, to the privilege allowed, to the prescription barring them.

These grounds will be considered seriatim.

1. The bills are in the usual form, purporting to be made from the assessment rolls. It has not been shown in what they are deficient.

2. The bills are against H. J. Mullan. It was not necessary for the city to have proved that the personal property assessed existed and had been properly listed at the time.

3. If there be a variance between the bills and the certificate of the assessors, as no doubt there is, to the extent of $10,000, neither the party assessed nor his creditors can complain of it, for the reason that the difference exists against the city; the bills being for that sum less than the amount at which the property appears to have been assessed-

4. The court allowed the taxes, to be paid by preference, out of the funds in the syndic’s hands. Nothing shows that any part of the amount allowed is to be paid out of the proceeds of the real estate. The probability, if not the certainty, is that the taxes (if any were due) assessed on the real estate, were paid out of the proceeds of that property when title was made to the purchaser.

5th. The Constitution, Art. 177, provides that privileges on movable property shall exist without registration, for the same, except in such cases as the Legislature may prescribe.

We have been shown no legislation requiring registry to secure a lien for the payment of taxes on personal property, and we know of none. That lien therefore exists independent of any registration.

If it be contended that such privilege exists without registry only during three years and that at the expiration of that term it dies away, the answer is that, if such be the case under Article 176 of the Constitution as to taxes on real estate, it is not so as to taxes on personal property, by reason of Article 177, vliich dispenses from all registration as to heirs on that sort of property.

6th. The prescription of three years levelled against the taxes of 1882, in argument, does not appear to have been pleaded either below or here, and will not be considered on appeal.

7th. It is true that the judgment appealed from does not restrict the payment of the taxes to the proceeds of the personal property listed; but when it is considered that the property assessed and on which the taxes claimed, viz: $2792.25, yielded $24,121.60, the objection must be viewed as hardly serious.

8th. It indeed appears from the record that the judgment appealed from allows interest on the taxes of 1885 from 1880; but this must be a clerical error committed in transcribing the original judgment which could not have allowed interest from that year, for the taxes of 1885, w'hen the opposition of the city only asks interest from 1885, and the city could claim no more. If the original judgment be erroneous in that regard, the district judge, on having his attention called, would assuredly have corrected the mistake.

III.

Tiie claim of the mortgage creditor for attorneys’ fees incurred by him, after the maturity of the note and for services rendered to secure payment of his note, is well founded.

It was agreed by tlie act of mortgage that the mortgagor bound himself and his assigns to pay the holder of the note all attorneys’ fees, as he may incur, in the event of the non-payment of the note at maturity.

The evidence shows, that after the sale of the mortgaged real estate, the syndic ruled the mortgagee to show cause why the inscription of his act of mortgage should not be cancelled to give a title to the purchaser. i

The mortgagee was thus constrained to employ counsel to represent him and see that, if the amount went to tlie syndic, it would be secure in his hands. This was not a mere formality. Responsibility rested on the counsel, for which the mortgagee, under the clause, is entitled to recover the compensation, as fixed in the contract.

The record further shows that legal steps had to be, and were, taken by the counsel in the name of the mortgagee to exact payment of what remained due on the note.

The attorney took a rule to coerce payment, which afterwards was dealt with as an opposition to the account.

This Court has decided that attorneys’ fees in similar cases form part of the capital. So that, where tlie face amount of the note only is paid, it cannot be said that the claim is satisfied. The fees of the attorney remaining unpaid have to be satisfied out of the proceeds.

Under the circumstances, the allowance was just and proper.

Judgment affirmed, with costs.


author: Poems, J.

text:
    No. 9775.
    Succession of M. H. Applegate.
    The widow of a deceased party by second marriage will not be allowed to"*claim, as administratrix, either in her own right, or on behalf of creditors, money expended by the husband for the maintenance and education of Ms children by a first marriage, when it appears that he made no such charge when living, and had never intended to make it; that the first community was solvent, that he was solvent during the existence of the second community, and at the moment of his death, and that the creditors whose rights are championed by the administratrix, were not creditors of the first community, and only became creditors of the deceased in due course of commercial dealings, imme diately preceding his death. Affirming decision in the succession of Boyer, 36 Ann. 506*
    PPEAL from tlie Civil District Court for tlie parisli of Orleans. Monroe, J.

      Sornor & Lee, for tlie Administratrix, Appellant.

      White & 8mmders, for tlie Opponents, Appellees.
   The opinion of the Court was delivered by

Poems, J.

The facts bearing on the only point of controversy in this appeal are as follows:

The deceased had been twice married. At his death he left three minor children, issue of his first marriage, and the widow and a minor child of the second marriage.

The children of the first marriage inherited a considerable estate from their mother, consisting of her separate property and of her share in the community, which was largely solvent.

At the death of Applegate, his second wife, the widow, was appointed and qualified administratrix of his succession.

In the account of her administration, which she presented to the Court, she charged the three minor children, issue of the first marriage, with the cost of their maintenance and education, at the rate of $1000 per annum for seven years and a fraction, footing up the sum of $7833 33. The charge was opposed by the tutor of said minors, and was disallowed by the district judge. Hence, her present appeal involves the legallity of the charge, which she proposes to make against the minors of the first marriage. It is in proof, and in fact, admitted, that M. II. Applegate did not at any time make such a charge against the revenues of his children, and that he had never thought or intended to raise and edúcate them otherwise than at his own expense.

It also appears that during eaoli and all of the seven years covered by the charge, as proposed by the administratrix, he was engaged in a prosperous business, from which he annually drew, for living and family expenses, an average of six thousand dollars; that from the death of his first wife, up to and including the túne of his own death, he was continuously solvent, and that he had ample means for the maintenance and education of his said minor children, without requiring a dollar of tlieir income derived from the succession of their mother, and from the first community.

Under this showing, the controversy presented by this appeal is entirely covered by tbe principle announced, and by the rules of Jaw adopted and enforced by this Court, in tire case of the succession of Boyer, 36 Ann. 506, in which it was held: The widow in community has no claim for money expended for the deceased husband in the maintenance of Ms heir, child of a former marriage, either during the minority or majority of such heir, in the absence of all evidence of any intention on the part of the husband, while living, of making such charge, and the community is entirely solvent and possessed ample revenues during its existence.”

Conceding tliat, under the effect of that decision, she is precluded from making the claim as widow in community, the administratrix argues that she herein represents the creditors of the community, which she holds out as insolvent. Hence, she urges that her charge is predicated on the facts and circumstances which characterized the case of Mercier vs. Canonge, 12 Robinson, 394.

In order to claim Shelter under the principles of that decision, the administratrix would be required to make proof of the following facts '•

That the. community between Applegate, the deceased, and his first wife was insolvent; that lie had no other property; that the income of liis minor children, out of their separate estate, was about sufficient to meet the cost of their maintenance and education, and that the creditors, whose rights she has undertaken to champion, were creditors at the date of the dissolution of the first community, or at least during the years for which she proposes to charge the minors for their maintenance and education.

These are substantially the facts and circumstances which make up the groundwork of the decision which she invokes in support of her contention, and in which the tutor was required to charge the expenses of his niinor children to the revenues derived from their separate estate, in order to subject the revenues of the insolvent community to the action of its creditors. Only one of those features is disclosed by the record in this case, and that is an income out of the minors’ separate property about sufficient to maintain and educate them. In every other feature the two oases are essentially different.

As we have already stated, the record in this case contains overwhelming ovideuce of the absolute solvency of the first community, and that none of the creditors of the second community were creditors of the first community which was dissolved by the death of the first wife in June, 1874.

It appears from the account that the rights of the creditors whose claims may be in conflict with the alleged rights of the minors of the first marriage, are evidenced by accounts current in the course of trade with the deceased, immediately preceding his death, while ho was actively carrying on his business of plumber and gas-fitter.

And it also appears that at the very moment of his death, Applegate was thoroughly solvent and in excellent commercial condition, even in view of the allowance made by the district judge in favor of his said minor children.

Tlio inventory of the second community shows assets amounting to $37,281.8(1, and debts, privileged and oidinary, in tlie sum of $20,-250.32. Through the allowance made in favor of the minors the debts are increased by $12,666.78, and otherwise reduced by $2000.

It may he, as suggested by the administratrix, that on the final setilement of the succession and community, the amount of assets realized may not be exactly sufficient to extinguish the entire indebtedness of the community. But this result, which is not yet determined, because the assets have not as yet all been reduced to cash, will he solely attributable to the inevitable shrinkage in the value of a large stock of goods, when sold at auction, and the customary losses in the collection of hills receivable due to a commercial house, whose going business is suddenly checked by the death of the head of the house.

The test of the solvency of such a concern is to he found in its condition as shown hy the inventory of the property made at or about the time that the house ends its career with the death of the owner. Thus tested, the community is shown to be solvent.

Our study of the case has led us to the conclusion that it must be governed hy the decision in the Succession of Boyer, 36 Ann. 506, and that the district judge has correctly decided the issue which has been submitted to our review.

Judgment affirmed.


text:
    No. 9789.
    R. R. Barrow et al. vs. Mrs. M. Wilson et al.
    Emancipation by marriage does not terminate the suspension oi'prescription as to minors, which continues until the actual majority of such minor. Plea of prescription of ten years overruled.
    As to the property purchased at tax sale, the prescription of three years is pleaded under section 5 of Act 105 of 1874, which declares: “Any action to invalidate the titles to any property purchased at tax sale under and by virtue of any law of this State, shall be prescribed by the lapse of three years from the date of such sale. ”
    This statute has never been repealed. Being a statute of prescription it is legitimately retrospective, and operates on tax sales made prior to its passage, at least from the date of the law.
    Section 62 of Act 42 of 1861, under which this sale was made, providing lor obtaining an Auditor’s deed of sale, does not impair the effectiveness of the tax collector’s deed as a title.
    The section 5 of the Act 105 of 1874 is distinctly a prescription of an action. It does not purport to cure defects in titles; nor does it concern itself with lhe rights of parties. It simply says, whatever be the rights, they must be asserted within three years or else the action is barred. 1

    The power of the legislature to pass such laws is undisputed aud the courts are bound to enforce them.
    In this case, defendants have a title derived from a tax sale made under a law o± the State, under which they have held open, public and notorious possession for thirteen years and for more than three years since plaintiffs reached the age of majority, before this action to invalidate their title was instituted.
    The statute is a harto the action. The question fully considered under numerous authorities:
    Lague vs.Boagni, 32 Ann. 912, distinguished from the case at bar. Person vs. O’Neal, 32 Ann. 237, overruled.
    A PPEAL from the Twenty-fourth District Court, parish of PlaqueJz.A. mines. Livcmdcm, J.

      E. ILowwrd MoOaleb for Plaintiffs and’Appellants :
    1. Minority suspends prescription. R. C. C. 3522, 3544,
    2. Prescription is suspended against a minor emancipated by marriage until her majority. 33 Ann, 35G; Troplong Prescription, T. 2, No. 740; Marcadé Prescription, art. 2252; C N. Bousquefi Diet. Pres. Tit. Mmeur ; Laurent, p. 32, No, 46. But it commences to run against a minor emancipated by judgment of court under article 385, C. O. from the date of the decree. 36 Ann. 250,
    3. Even possessors in good faith are liable for fruits and revenues gathered and received since the time of the owner’s claim for restitution. R. C. C. 3453, 503.
    4. The prescriptions in favor of tax titles established by Act No. 101 of 1373, and Í05 of 1874, cannot avail in this case because (1) the former applies ex vi termini to “sales made to satisfy j udgments for taxes; (2) these statutes have been repealed by subsequent laws before plaintiffs attained the age of majority; (Act 96, E. S. 1877 and Act 9, E, S. 1878); and (3) the property in dispute was not assessed in the name of the true owner. 32 Ann. 932.
    5. The prescription of three and iive years only cures informalities — and not radical defects and illegalities in the assessment and sale of property for taxes. T5 Ann. if>; 34 Ann. 107; 32 Aim 228; 34 Aim. 407; 35 Ami. 954.

      Zuohwrie & Hoiuard for Defendants and Appellees :
    The rules laid down in the Civil Code pertain to the legal relations of the people among themselves, and do not apply to the State in its sovereign capacity, especially in tax matters, unless the code so specially provides. Dropsie’s Mackeldy Dw. 1. § 8 ; Justinian 3, § 4; Domafc. tom. 1, chap. 11, §§ 41, 44; Demolombe tom. 1, p. 14; Mourion tom. 1, p. 7, § 10; Marcadé tom. 1, p. 24 ; Duranton tom. i, p. 17.
    Under all systems of la^y prescription cannot he maintained against the sovereign unless it he established by statute. Prescription does not run against laws of public order. Bacon’s Ahridg. L. 4, 201; Justinian, Ins. Lib. 2, tit. 6; Code tit. 38, §7, 3; Pothier, part 3, § 685; Troplong Pres., chap. 1, Disp. Jen. § 132, 3; Laurent, tom. 32, p. 249 ; Do-mat. chap. 11, No. 40; Laurent, tom 1, p. 83, § 48; Boileaux, tom. 7, p. 743; Laurent, tom. 32, p. 743; Moreau & Carelton's Partidas, p. 373, tit. 29, law 6; White’s Recopilación, vol. 1, pp. 348, 350.
    If this be correct, then none of the interruptions or suspensions of prescription on account of minority or coverture established by the code are of force in suspending proscription running under a tax law.
    Under Act No. 42 of 3871, sec. 62, two years possession of real estate, under a tax deed vested title completely aud fully, and under sec. 2, Act No. 101 of 1873, under such a deed, after two years the former owner is deemed to have acquiesced, and waived all in-formalities, in the tax sale, and the deed is made conclusive.
    But even if it is‘conceded, for the sake of argument hero, that the rules of the Civil Code apply under O. O.. art. 543, in case of public sales, and the prescription of livo years runs on tax sales, and is not suspended by minority and coverture.
    All informalities and irregularities of tax sales arising subsequent to the decree (assessment), aro governed by the same rulos, and the deeds are placed on the same footing as judicial sales, and are subject to the same rules as sheriff’s deeds “in regard to the five years prescription.” 30 Ann. 1125; 25 Ann, 237; 29 Ann. 115; 35 Ann. 893; 31 Ann. 662; 34 Ann. 205.
    The eases cited contra by our opponent, 10 Ann. 777, 12 Ann. 748, 14 Ann, 209, do not apply here, as they were simply actions of nullity, and the question of prescription was not involved. In 15 Ann. 15, cited by him, there was a glaring error of assessment. So in 33 Ann. 520; 34 Ann. 108: 33 Ann, 913; was a case “in which the gravest irregularities and absolute nullities bave been propounded and were known to the party purchasing.” 35 Ann. 952 and 34 Ann. 409, were cases of radically defective assessments. In 33 Ann. 873; 23 Ann. 231; 28 Ann. 354; 24 Ann. 454, the question of prescription was not raised.
    The possessor in good faith, if evicted, is entitled to he reimbursed the amount expended for taxes, improvements, and interest thereon, and the fruits and revenues are his own until the date of the institution of the suit for eviction. Hen. Dig. p. 1195; 14 Ann. 605; lo B. 178; 34 Ann. 1163; 35 Ann. 1086; 13 Ann. 494; 2 B. 137; 2 Ann. 347; 26 Ann. 58S; 18 Ann. 407; 27 Ann. 398; 32 Ann. 927; 32 Ann. 1293; 34 Ann. 705.
    Especially where the land, as in the case at bar, was unimproved, open land, producing no rent, and to which the tax purchasers contributed its only rental value by their improvements and disbursements. 34 Ann. 1163; 2 B. 137; 16 Ann. 414 2 Ann. 347; 18 Ann. 407.
   The opinion of the Court was delivered by

Fenner, J.

This case was before us in 1886, when we rendered the opiuion and decree reported in 88 Ann. 213.

We then remanded the case for further evidence on the question whether the prescription of ten years pleaded by defendant was defeated by suspension resulting from the minority of plaintiffs.

Tlie record now returns to ns wifhinll proof that plaintiff, R. R. Barrow, was fully emancipated in 1876 and became 21 years of age in 1879, and that Mrs. Slatter, the other plaintiff, only attained the age of majority in 1875, though emancipated by marriage in 1871.

This action was instituted in 1884. It follows that ten years bad not elapsed from tlie majority of either plaintiff, unless the marriage of Mrs. Slatter terminated the suspension of prescription as to her. The question as to whether the emancipation of a minor by marriage euds the suspension of prescription resulting from minority, does not appear to bave been directly decided by this Court.

But the French authorities, under a like provision in the French Code, are quite unanimous in holding that prescription against a minor emancipated by marriage remains suspended until actual majority. 32 Laurent, No. 46; 2 Troplong, Prés., No. 74; Marcadé, Prés., Art. 2252, C. N.

In a recent case, discussing the nature and effect of emancipation by marriage* we said: “Marriage did not relieve her from the disabilities which attach to minors, and did not vest her with the power and right of doing and performing all acts as validly as if she had attained the age of twenty-one yeais. She could not mortgage or alienate real estate without the consent of a family meeting and the authority of the judge. Her powers are of administration only.” Succ. Mitchell, 33 Ann. 356.

These limitations on the effects of emancipation by marriage are the foundations of the French doctrine that it does not end the suspension of prescription. That doctrine seems to us to be sound and applicable under our law, and we therefore approve and adopt it.

I.

This terminates the controversy as to the tract of land held by defendants under the State patent, as to which there was no defense having the slightest merit, except the prescription of ten years, which is now overruled.

II.

The other tract of land is held by defendants under a tax sale made to their author in 1871. Against the attack in this sale, defendants pleaded the prescription of five and three years, both of which had fully run, after the majority of plaintiffs, before the suit was brought. Art. 3543 C. C., provides: “ All informalities connected with or growing out of any public sale made by any person authorized to sell at public auction, shall be prescribed against by those claiming under such sale, after the lapse of five years from the time of making it, whether against minors, married women or interdicted persons.”

Section 5 of Act 105 of 1874 declares : “ Any action to invalidate the titles to auy propertyr purchased at tax sale under and by virtue of any law of this State, shall be prescribed by the lapse of three years from the date of such sale.”

We have thus placed the two provisions side by side, in order to exhibit the broader and more sweeping effect of the latter law. While the article of the Code covers informalities only, the act of 1874 creates a positive bar against “any action to invalidate” a tax title.

Fearful that in the labyrinth of laws and decisions, on the subject of taxes and tax titles, there might be some law or decision repealing or modifying the effect of this statute, we took' occasion to call the attention of the able and distinguished counsel engaged in this case to the subject, and to invite further argument thereon.

The statute has never been repealed. The only subsequent enactments pointed to as having such effect are Sec. 57 of Act 96 of 1877 and Sec. 6 of Act 9 of 1878; but, taken in connection with the limited repealing clauses in those acts, it is too clear to require further notice ; that the sections quoted are not inconsistent with the statute, and, therefore, do not operate its repeal.

Tt is claimed, however, that under Section 62 of Act 42 of 1871, uifeer which this sale was made, the deed of sale from the tax collector could not operate as a basis of prescription, but was a mere inchoate title until perfected by a deed of sale issued by the Auditor of Public Accounts as therein provided. The mere reading of the section makes it obvious that the procuring of the Auditor’s deed is a’matter purely optional with the purchaser, conferring, perhaps, some additional rights, but the omission of which, in no manner, invalidates the tax collector’s deed as a muniment of title. We, therefore, find that the statute continues in force.

There is no question of the legislative power to pass such a statute, and, being a statute of prescription, it is legitimately retrospective and operates on the title of defendants, at least from the date of the law. DeArmas vs. DeArmas, 3 Ann. 526; 3 Municipality vs. Ursuline Nuns, 2 Ann. 611; Municipality vs. Wheeler, 10 Ann. 745.

It now becomes our duty to ascertain the effect of such a statute upon the rights of parties under such sales. This is distinctly a statute of prescription. It operates not upon the rights of the parties. It does not purport to validate a title which, otherwise, would be invalid. It simply limits the time within which the owner of the original title shall be allowed to assert his rights against the purchaser at a tax sale.

Mr. Blackwell well says: “ There must be a period fixed by positive law, within which a right shall be prosecuted in courts of justice. Public policy demands the enactment of such laws, and they are universally sanctioned by the practice of nations and the consent of mankind. Such laws have been emphatically and justly denominated statutes of repose. The best interests of society require that causes of action should not be deferred an unreasonable length of time. This remark is peculiarly applicable to land titles.” Blackwell Tax Titles, p. 643.

Cooley says : “ The statutes limiting a short time within which the owner of the original title shall contest the tax claim are supposed to be enacted in pursuance of a sovereign authority vested in the Legislature to fix a reasonable time within which a party shall be allowed to assert his rights by suit, or be debarred. The policy of such laws is unquestionable, and the power to enact them is undisputed;” Cooley on Tax, p. 376.

The Supreme Court of the United States has said; “Prescription is a tiling of poliojr, growing out of the experience of its necessity; and the time after which suits or actions shall be barred, has been, from a remote antiquity, fixed by every nation, in virtue of that sovereignty by which it exercises its legislation over all persons and property within its jurisdiction.” McElmoyle vs. Cohen, 13 Peters, 312.

A statute of the State of Arkansas provided that: “All actions against the purchaser, his heirs or assigns, for the recovery of lands sold by any collector of the revenue for the non-payment of taxes, shall be brought within five years after the date of such sale, and not after.”

In passing on the effect of this statute, the Supreme Court of the United States said: “In order to entitle the defendant to set up the bar of this statute, after five years’ adverse possession, he had only to show that he and those under whom he claimed, held under a deed from a collector of the revenue of lands sold for the non-payment of taxes. He was not bound to know that all the requisitions of the law had been complied with, in order to make the deed a valid and indefeasible conveyance of the title. If the Court should require such proof, before a defendant could have the benefit of this law, it would require him to show that he had no need of the protection of the statute, before he could be entitled to it. Such a construction would annul the act altogether, which was evidently intended to save the defendant from the difficulty, after such a length of time, of showing the validity of his tax title.” Pillow vs. Roberts, 13 How. 472.

A Wisconsin statute provided that any suit or proceeding for the recovery of land sold for taxes, except in cases where the taxes have been paid or the lands redeemed, as provided by law, shall be commenced within three years from the time of recording the tax deed of sale, and not thereafter. Under this statute, the Supreme Court of that State held that if the tax purchaser’s possession had been actual and open, the statute would protect him, even if his tax deed was void upon its face.” Lindsay vs. Fay, 25 Wis., 460.

A Pennsylvania statute provided that no action for the recovery of lands sold under the act should lie unless brought within five years after the sale. The Supreme Court of the State refused to apply the statute literally, and held that it began to run, not from the sale, but from the time of possession under it, for the reason that the owner was not allowed to bring ejectment against one not in possession. But a 'subsequent statute having been passed, authorizing ejectment in such case, it was held that the limitation was perfect after the lapse of five years from the delivery of the deed to the purchaser.” Stewart vs. Trever, 56 Penn. St. 385; Rogers vs. Johnston, 67 id. 48; Johnston vs. Jackson, 70 id. 164.

Now, in the case before us, the defendants have held since 1871, under tax title, perfectly valid on its face, reciting that the tax collector, in making- it, acted “by virtue of the authority vested in him by Act 42 of 1871, after having fulfilled and complied with all the previous legal requisites.” The land, when sold, was unimproved; and the purchasers have not only had possession of it, but have cleared and cultivated and converted it into a plantation. And now, thirteen years after the sale, and more than three years after the plaintiffs had been freed from all the disabilities of minority, the latter brings this action to invalidate their title. The defendants simply say: “We hold a title to this property, purchased at a tax sale under a law of the State, and, in the language of the statute, your “ action to invalidate ” it is “prescribed by the lapse of three years from the date of such sale.” The statute does not concern itself with the strength of one title or the weakness of the other. The plaintiffs had a right which could only be enforced by an action. The law maker had the power to fix a reasonable time within which such action should be brought, under penalty of its being thereafter barred by prescription. That power has been exercised, and when the time fixed has expired the courts are bound to enforce the limitation, and to deny the action.

Under the authorities which we have quoted, the foregoing conclusion seems sufficiently clear.

In the case of Lague vs. Boagni, 32 Ann. 912, we refused to apply this prescription to the particular case therein mentioned, which was one where the property of Lague had been assessed in the name of Nunes, where Lague’s title was spread on the public records of the parish, and where the purchasers were shown to have known of these defects. No such radical defect exist in the assessment in the instant case. The property had belonged to II. L. Hunley, a nonresident of the parish, and the parish records exhibited no translation of his title. The assessment was made in the name of H. L. Handley, which variance is cured by the principle of idem sonans, as being a mistake not liable to mislead. Burroughs Tax. p. 203; 37 N. H. 307; 39 Barb. 479; 40 N. J. Law 269; Desty on Tax. 613.

Moreover, it does not appear, in the case of Lague vs. Boagni, that the purchaser had' actual and open possession for the requisite period. When such possession is shown, it puts the original owner under notice of the necessity of bringing his action, and if he fail to bring it within the time prescribed, the bar of the statue applies.

We are also referred to the case of Person vs. O’Neal, 32 Ann. 237, where the Court said, in commenting on this statute: “ Whatever defects in a tax-sale may be cured by the lapse of three years, the want of personal notice to the owner, or his agent or curator, cannot be, because such notice is a condition precedent to the seizure, without which there could be no sale.” We are compelled to overrule this decision.

It is in direct conflict with a former decision, which held that even under Art. 3543 C. C., want of such notice was a relative nullity cured by the lapse of live years. Allen vs. Couret, 24 Ann. 24; Mulholland vs. Scott, 33 Ann. 1045.

It is a mistake to treat this statute as one intended to cure defeats in tax titles. It is a statute of prescription, barring an action, regardless of the merits or demerits of either title.

We are sensible that this Court has hitherto exhibited hesitation in applying these statutes of prescription in favor of tax titles according to the trenchant principles by which they should be governed; .but it is time that such hesitation should cease, and that the clearly expressed legislative will, in the exercise of undoubted legislative power, should be firmly enforced by the courts.

We are, therefore, bound to hold that, as applied to the facts of this case, the prescription of three years bars the plaintiffs’ action for the land covered by the tax title.

IIT.

It only remains to adjust the claims of the parties for rents and improvements in reference to the tracts of land held by defendants, Geo. T. Wilson and Mrs. Margaret Wilson, and which are awarded to the plaintiff.

The former opinion of this Court (38 Ann. 213) held that these defendants were possessors in good faith. Hence it follows: 1st, that they are not responsible for the revenues except from the date of the institution of the suit; and 2d, that they are -entitled to recover the amount expended for their improvements, or a sum equal to the enhanced value of the soil resulting therefrom. C. C. art. 508.

These defendants have called their author, John Burton, in warranty, and liave prayed for judgment condemning him as warrantor with a reservation of their right to claim from him the purchase price with damages in a, separate action.

Burton has appeared and admitted his obligations as warrantor, and, in case of judgment evicting his vendees, has asked judgment against plaintiffs for the value of improvements put on the lane! by Mm or for the enhanced value of the soil.

Til ese questions have never been passed on by tbe lower court, and we do not find the evidence in such shape as to enable us satisfactorily to dispose of them. We shall, therefore, remand the case as to these questions.

It is, therefore, ordered, adjudged and decreed that there he judgment in favor of defendants, Mrs. Leonard Edgecombe and Diedrich Wischliusen, maintaining their plea of prescription and rejecting plaintiffs’ demand as against them with costs in both courts.

That there he judgment in favor of plaintiffs and against the defendants, George T. Wilson and Mrs. Margaret Wilson, declaring the said plaintiffs to be the true and lawful owners of the property referred to in the petition and more fully described in the separate answers of said defendants and condemning said defendants, respectively, to deliver up the lands so held by them into the possession of said plaintiffs ; that the right of plaintiffs to recover the revenues of said properties from the date of institution of this suit be recognized, with the correllative right of said defendants to recover from plaintiffs the amount expended by them in improvements as the enhanced value of the soil resulting therefrom; that there be judgment in favor of defendants and against John Burton, recognizing Ms liability to them as warrantor of their respective titles, and reserving their right to sue Mm in a separate action for reimbursement of the price and for damages ; that Ms right to recover from plaintiffs the amount expended by him or Ms author for improvements or the enhanced value of the soil resulting therefrom he recognized; that the case be remanded to the lower court for further proceedings in order to settle the amounts due on account of rents and improvements between the respective parties; and that the execution of the decree placing plaintiffs in possession of the land in controversy be stayed until after final judgment settling the said questions of rents and improvements ; that defendants, George T. Wilson and Mrs. Margaret Wilson, pay half the costs of che lower court and of this appeal, and that the other half be paid by plaintiffs.