author: Miller, J. Watkins, J.

text:
    No. 11,928.
    Edward Talle et als. vs. Mrs. Widow N. Antonio De Monasterio et als.
    On the appeal of the plaintiffs in the lower court, the defendants neither appealing or asking any amendment of tlie judgment in tlie mode pointed out by the Code, can obtain no change or reversal of the judgment of the lower court. C. 3?., Art. 888, 889, 890; 1 An. 140; 5 Ann. B40; 10 An. 397.

      PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Samuel L. Gilmore and Theo. Gotonio for Plaintiffs, Appellants.

      Horace E. Upton and Anatole A. Ker for Defendants, Appellees.
    Action for the annulment of a sale of certain property situated in the city of New Orleans made by the State Tax Collector, and adjudicated to the State of Louisiana, on the 14th of August, 1875; and also conveyed by said Tax Collector to one N. Antonio De Monasterio on the 17th of August, 1875, by an authentic act. And further to annul the act of confirmation of said Monasterio’s title by the State Auditor, bearing date February 25, 1876, and to decree plaintiffs the owners thereof.
    The judgment of the District Court decreed the plaintiffs owners of the property in controversy.
    On appeal the case was argued and submitted, March 10,1896, and the judgment of the District Court was reversed.
    The opinion of the court was delivered by Watkins, J., and handed down April 6, 1896.
    On April 18, 1896, a rehearing was granted.
    On the rehearing the ease was argued and submitted June 15, 1896.
    Opinion handed down June 25, 1896.
   The opinion of the court was then delivered by

Miller, J.

The judgment of the lower court was in favor of plaintiffs for the property claimed by them in this suit, and against them on their claim for damages caused by eviction, and for rents of the property for the period it is claimed defendants have had illegal possession. The defences were that defendants, the widow and heirs of De Monasterio, were owners under a tax title conveyed by the State to him years before the suit was brought; that subsequently plaintiffs, or one of them, rented the property from him and is thereby estopped from disputing the title of his widow and heirs; there were defences of prescription against plaintiffs’ demands, and defendant claimed in reconvention an alleged indebtedness of the plaintiff, Edward Talle, to De Monasterio,- existing when the tax sale was made. On these issues the lower court rendered its judgment, from which there was no appeal by defendants. The appeal was by plaintiffs.

On this rehearing our attention is directed to the finality of the judgment in plaintiffs’ favor for the property, and that the plaintiffs’ appeal brought before this court only the demands of plaintiffs for rents and damages. It is therefore insisted our judgment is erroneous in setting aside plaintiffs’ judgment for the property.

The appeal submits to this court the errors in the judgment which the appellant conceives operate to his prejudice. If the other party to the suit complains of the judgment, to obtain relief he must appeal, or answering the appeal of his adversary, claim an amendment. It results that this court on the appeal can not disturb the judgment except to the extent asked at our hands by the appellants, unless there is an answer from the appellee demanding an amendment of the judgment. In other words, the judgment of the lower court becomes final as to the party who takes no appeal and asks no amendment in the mode pointed out by the Code of Practice. In this case there being no appeal by the defendant and no answer by them to the appeal, the judgment of the lower court, in favor of plaintiffs for the property, could not be called in question on this appeal of the plaintiffs or disturbed by us. Code of Practice, Arts. 888, 889, 890; Succession of Hillsberg, 1 An. 340; Succession of Decoux, 5 An. 140; Wortham vs. Schenck, 10 An. 197.

We have given attention to the argument of defendants that their defences of prescription made in the lower court against the demand for the property should be considered as filed here, because the Code authorizes such defences on the appeal. C. P. 345. But the provision of the Code in this respect secures the right to make such defence with reference to the issues brought up by the appeal. The case cited by appellees, Miller vs. Mercier, 3 N. S. 229, maintains that this court on appeal may enforce defences or sustain grounds not disposed of by the lower court. No doubt of that. But the demands in respect to which such grounds or defences are assumed or urged must be before us. Neither the Code or the decisions sustain the contention that because of the plea of prescription filed here or deemed renewed, we can touch a judgment neither appealed from or sought by answer to be amended by the party urging the prescription.

On the.question of damages for eviction claimed by plaintiffs, in our view the action is prescribed. The unlawful deprivation of the possession of the premises, as the plaintiffs describe the act on which they base their claim for damages, was clearly subject to the prescription of one year long since accrued. Oivil Code, Art. 3536. The plea of prescription in that respect is before us, and we sustain it. The prescription against the claim of plaintiffs for rents and revenues, we think, should be reserved. This is a petitory action by plaintiffs for the property and rents during the period of defend - ant’s illegal possession. To what extent the claim for rents is to be deemed the incident of the petitory action, or in any aspect is to be sustained, we think should be reserved.

It is therefore ordered, adjudged and decreed that the judgment of this court, previously rendered in this case, be set aside and annulled. It is further ordered, adjudged and decreed that the judgment of the lower court, in so far only as it dismisses and rejects plaintiffs’ demand for rents and revenues, be annulled; said judgment, in so far as it decrees plaintiffs the ownership of the property, and dismisses defendants’ reconventional demand, being left in full.force and untouched by this decree, and it is further ordered and decreed that as to rents and revenues of said property, the right to claim which is reserved to plaintiffs, that this case be remanded to the lower court for further proceedings and another trial, and that defendants pay costs.

Dissenting Opinion.

Watkins, J.

This is a petitory action for the recovery of improved property and the rents and revenues thereof; and the defendants set up title in themselves and make claim for improvements and taxes. On the trial in the lower court there was judgment in favor of the plaintiff for the property, making no allowance for rents and revenues on the one side, nor the value of improvements and taxes on the other; and from that judgment the plaintiff procured an order of appeal, general in its terms, and without having previously applied for a new trial; and in this court the defendants and appellees filed no answer to the appeal, and consequently requested no amendment of the judgment appealed from.

Under this state of facts the question arises as to what issues are presented to this court for decision; whether plaintiff’s appeal brought up the whole ease, or only the question of rents and revenues. For, if it brought up the whole case, it occupied the same position it did in the lower court, and there was no occasion for the appellee to have answered; but if, on the contrary, the appeal only brought up the questions of rents, improvements and the value of vegetables, etc., destroyed, the appellee should have answered the appeal and requested an amendment of the decree recognizing his title.

Entertaining the belief that plaintiff’s appeal brought up the whole case, our opinion dealt with the whole case, reversed the judgment appealed from and decreed the defendant to be the owner of the property in dispute.

There being a disvision of opinion amongst the judges as to whether the judgment was before us with respect to the title, a rehearing was granted, and the attention of counsel on both sides was directed to this point.

Consulting the record we find that the judgment of the District Court passed upon and decided no other issue than that of title; and it left undecided all other issues raised by the pleadings.

Thi re was no judgment to appeal from, other than that with reference to the title. If, in point of fact, the plaintiff did not appeal from that judgment, there was no judgment from which he could have appealed, at all; and if that judgment has not been brought up for review, there is no appeal before this court, and .nothing presented by the record upon which this court can rest a decree or found its jurisdiction.

An appeal is an act whereby one of the parties to a suit has recourse to a superior tribunal “in order to have the judgment of an inferior court corrected.” C. P. 564.

And the law expressly provides that this court “ can only exercise its jurisdiction in so far as it shall have knowledge of matters argued or contested below.” C. P. 895.

And this court said in Miller vs. Gilmore, 33 An. 1404, that “in the exercise of its appellate powers, this court reviews the judgments of the lower courts, to affirm, reverse or amend them, or to remand a case.

“ We can not, in the present phase of the action, decide what the rights of the parties are, for that would be assuming and exercising an original jurisdiction which we do not possess in this class of cases.

“This court can exercise its appellate jurisdiction only in so far as it shall have knowledge of the matters argued or contested below.”

It is apparent from the record that nothing but the question of title was decided in the court below; and as, in the exercise of its appellate jurisdiction this court can not deal with anything in the case which was not decided in the court below, and can only exercise its jurisdiction to the extent it has knowledge of the matter argued and contested therein, there was no occasion for the defendants to have filed an answer to an appeal, which had brought up for review the only question which had been decided in the lower court.

The decision of the question must largely depend upon the character of the action, and the effect of the judgment which has been appealed from.

A mixed action is defined as being one “ which partakes both of the real and personal action, such as a claim for the ownership of real property and also for the fruits it has produced or their value.” C. P. 7.

This is the character of plaintiffs’ action. It is one and indivisible. The issues were inseparable at the date suit was filed, and up to the time judgment was rendered; but it is contended that it at once became divisible, so as to enable plaintiff to prosecute an appeal as to that part of the case which was not decided, and upon which 'no judgment had been rendered, without suspending the decree of the lower court as to the part of the ease it did decide, or in any manner impairing its effect as res ctdjudieata, from which, in the opinion of plaintiffs’ counsel, no appeal was taken.

It has been decided that “ the dispositions of Arts. 592 and 888 of the Code of Practice are exclusively applicable to cases in which all the parties have been cited, and all the issues made in the first instance are appealed from.'' Girod vs. Creditors, 2 An. 546.

Now it is manifest that in the instant case “ all the issu s made in the first instance ” were not adjudged in the lower court, and, consequently, were not appealed — not in the opinion of plaintiff’s counsel — hence, applying the principle of that decision, the defendants have a standing in this court to question the validity of the judgment which is brought up on appeal without filing an answer, and requesting an amendment of said judgment.

The reason of this rule evidently is that in case there are several issues in a ease, all of which are decided, some in favor of one or more of the parties, and some against one or more of the parties, and only one of the parties takes an appeal, it is then necessary for those not appealing to answer the appeal and ask appropriate amendments, otherwise the judgment of the appellate court would have to be restricted to the single issue tendered by the appellant.

But when the judgment in the court below is restricted to a single issue from which one party appeals, there is no occasion for the other party to answer and ask for an amendment of the judgment appealed from, because the appeal presents the only issue that was decided, and upon which the appellate court is bound to pass judgment, one way or the other, if it exercises jurisdiction at all.

Indeed, the Code declares that “ if the appellee complain of some parts of the judgment of the inferior court, he may, without appealing from the same, pray that it be set aside in those points in which he believes that he is aggrieved.” C. P. 592.

If the theory of plaintiff’s counsel be correct, his clients would have been entitled to a writ of possession for the surrender of the property in litigation, notwithstanding his appeal from the judgment recognizing his title; and if that judgment forms res judicata as to the question of title a plea to that effect would have necessarily cut off all recourse of the defendants in this court in respect thereto.

But the record furnishes no evidence as to the issuance of a writ of possession or of a plea of res judicata having been filed.

The reason is manifest, and it is that either a writ of possession or a plea of res adjudicata in respect to the title, would have utterly defeated the whole action for the property and improvements, the same being one and indivisible; and if this would be the effect of a writ of possession or the filing of a plea of res adjudicata, for a like reason why should not the appeal as to one or the other — title or rents and revenues — necessarily bring up the other? There can be no other rational solution of the matter.

As well might it be contended that a plaintiff in whose favor a judgment had been rendered on a promissory note for the principal, pretermitting any expression with respect to the interest, could appeal therefrom and obtain a judgment of this court awarding him interest, and at the same time proceed with the execution of the judgment in the District Court, denying the defendant and appellee’s right to be heard in the appellate court, because he had failed to answer and pray for amendment of the judgment on the principal demand, no appeal therefrom having been taken.

But to illustrate the fallacy of plaintiff’s contention, the efficacy of the plea of res adjudieata with respect to the judgment of the District Court would, according to his theory, be made to depend upon the appellee’s aiiswer to the appeal in this court. But it is difficult to perceive how an answer to the appeal could affect the question of title, if indeed it did not bring that question up; or what benefit it would confer upon the appellee to file an answer and request an amendment of a judgment which brought up but one issue upon which the court was bound to pass, or not exercise its jurisdiction at all.

It has been held that a suspensive appeal from a judgment dissolving an injunction does not operate a stay of proceedings on the merits, and in such ease this court has declined to perpetuate a writ of prohibition to that end.

State ex rel. Butchers’ Union vs. Judge, 33 An. 436. But no case can be cited in which relief by prohibition has been refused in such a case as this, where a portion of the relief prayed for by a plaintiff in a mixed action is asserted to have become final by the self-same decree from which he has appealed as to another portion of the relief therein contained.

On the contrary, it has been held that “ if a District Judge assume jurisdiction in a case after the appellant has complied with the law which entitles him to a suspensive appeal, he is clearly exceed - ing the bounds of his jurisdiction.” State ex rel. Johnson vs. Judge, 31 An. 113; State ex rel. Menge vs. Judge, 36 An. 711.

It is elementary that no appeal lies from a judgment before it is signed; and if an appeal has been granted from a judgment before it has been signed the appeal is premature because the judgment is inchoate. Garland’s Code of Practice 565, and authorities.

And the converse of that proposition is equally true, that once a final judgment has been signed and an appeal has been granted, and an appeal bond filed, the jurisdiction of the lower court ceases, “and it has no longer authority to take any steps but such as may be necessary to transmit the record to the Supreme Oourt.” 1 Hen. Dig., p. 73, No. 3, and authorities cited therein.

Hence it may be correctly assumed that, in so far as the judgment of the lower court decided the issues raised, it was the legal basis of an appeal, having been signed; bnfc in respect to other issues the appeal was premature, because, as to them, it was not signed, and therefor not appealable.

But, if on the contrary, the judgment which was rendered and signed be considered as having embraced all the issues in the case, though some were not particularly specified, then the jurisdiction of the lower court terminated, in every respect, upon the filing of the appeal bond; and, of necessity, this court acquired full and complete jurisdiction over the whole case, and in the exercise of its jurisdiction it correctly sustained the appeal with respect to the rents, and decided the question involved.

An appeal is a constitutional and highly favored remedy, and courts should recognize and maintain the right in every doubtful case.

On the submission of the case the question of title was discussed orally and argued on briefs on both sides. Our opinion refers to the pleadings and the fact that plaintiff had appealed from a judgment in his favor, and treated the appeal as having brought up the entire case for decision.

The unanimous opinion of the court was that on the evidence defendant’s title was good, and we reversed the judgment in plaintiff’s favor.

And for the first time on this application the right of the defendant to be heard on the suffioienoy of the appeal is raised. No article of the Oode of Practice or decision of this court has been referred to as supporting this highly technical hypothesis. And I can see neither law nor equity in straining a technicality so far, and by so doing turn the defendant out of his house and home.

For these reasons I dissent from the opinion of the majority.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 12,122.
    Succession of R. H. Allen.
    In case of sale being made of a minor’s property during tbe lifetime of both father and mother, the father may occupy the place of tutor pro hac vice, and in such event the law clothes him with the power of a tutor in point of fact and consequently he is dispensed from furnishing security, taking and subscribing an oath, having an inventory taken, or causing a mortgage to be inscribed against himself, and the like.

      When immovable property situated within the jurisdiction of one of the parishes of this State territorially forms the subject of a partition amongst co*proprietors, some of whom are minors domiciled in other States of the Union, the court possessing jurisdiction of the partition suit and proceedings is fully authorized to direct the proceedings of a family meeting to deliberate and advise touching the interest of minors interested who reside abroad.
    APPEAL from the Eighteenth Judicial District Court for the Parish oi Lafourche. Caillouet, J.

      Fenner, Henderson & Fenner for Plaintiffs in rule, Appellants.

      Clay Knobloch & Son for Defendants in rule, Appellees.
    Submitted on briefs April 23, 1896.
    Opinion handed down May 18, 1896.
    Rehearing refused June 25, 1896.
   The opinion of the court was delivered by

Watkins, J.

This appeal is prosecuted from a judgment making absolute a rule taken by the fathers of the minor legatees of Rienzi plantation to compel acceptance by the defendants in rule asadjudicatees thereof at a private judicial sale of the title tendered them in respect of the undivided interests of said legatees therein — said sale having been made in pursuance of an order of the judge and the . recommendations of á family meeting for the purpose of effecting a partition between the co-proprietors thereof.

As presenting a fair synopsis of the facts of the case we append the following extracts from the defendants and appellants’ brief, instead of making a statement of our own. Brief, pages 1 to 4, inclusive:

“ On the 29bh January, 1896, by act before Coulon, notary, Mrs. Bettie Allen, the Allen heirs and Smith heirs, legatees of Rienzi plantation, sold it to J. B. Leverb and E. 17. Morvant for forty-one thousand dollars, one-third cash and the balance in two equal instalments, represented by notes maturing respectively at one and two years from date, secured by vendor’s lien and special mortgage on the property sold.
“Among the vendors the so-called Allen heirs, all being minors, were represented by their fathers, who acted as tutors duly authorized by family meetings. Two sets of those minors live in Memphis, .Tenn., and the other set in New Orleans, La. The mothers of the minors are still living. The sale, in so far as the minors are concerned, was to effect a partition between the co-owners for reasons fully set forth in the petitions for and prooes verbals of family meetings.
“After the purchasers had paid the cash and given their notes, both the cash and uotes that are to go to the Allen heirs and Smith heirs were under a clause in the act deposited in the hands of the three executors of the last will of R. H. Allen, to be distributed among the Allen heirs and the Smith heirs in accordance with the decree of this Honorable Court, when same becomes final, in the matter of the Succession of R. H. Allen, No. 11,998 on the docket of the court, rendered on the oppositions to the provisional and final accounts filed in the matter of that succession. The decree on those oppositions is now under advisement on application for rehearing, and among other questions presented is the proper distribution of the joint legacy made to the Allen heirs .and the Smith heirs of the one-half of Rienzi. Whatever the distributive share of the Allen heirs is, then the defendants in the present ease ask that it be held in the hands of its custodians, the executors, until final decree herein.
“ In the present ease'the Allen heirs sue out a rule on the executors as custodians and on Levert and Morvant, purchasers of Rienzi plantation, to show cause why the executors should not turn over to plaintiffs in rule the distributive share that may be fixed by your Honors’ final decree on the oppositions to the final and provisional accounts aforesaid.
“ Defendants in rule duly notified the executors not to turn over the distributive share of these Allen heirs, minors, in and to the cash and notes given for purchase price of Rienzi plantation, because, since their purchase of the plantation, they have been legally advised that the title which the said minors purported to have passed to them was defective, null and void for the reasons fully set forth in their answer to the rule, viz.:
“ 1. That the respective fathers of said minors pretended to act throughout the proceedings of family meetings, and in the act of sale by virtue of Art. 222 of the Civil Code as ‘ being clothed with the powers of the tutor,’ but your appearers say that they could not thus act, and were not thus clothed, because they failed to have inventories taken and made of the property of the said minors, and failed to have certificate of the amount of said inventories recorded according to law in the mortgage records of the parish of Lafourche, and in such other parishes where the said fath er might have property.
“2. That the proceedings for family meetings and the family meetings held in the parish of Lafourche, on behalf of the minors of Thomas H. Allen and Richard H. Allen, should have been had and held in the city of Memphis, State of Tennessee, where ' said minors and their fathers reside; the court of the State of Louisiana, parish of Lafourche, being without jurisdiction ratione personse.
“ 3. That, even if said family meetings were regularly held, which is denied, and even if the court of the parish of Lafourche had jurisdiction in the premises, which is also denied, than said family meetings should, besides fixing the price, terms and conditions of the sale, have provided for the investment of the funds of the minors, as required by law.”

I.

The pertinent provisions of the Oode are, viz.:

“ Property belonging to minors, both of whose parents are living, may be sold or mortgaged, and any other step may be taken affecting their interest, in the same manner and by pursuing the same forms as in case of minors represented by tutors, the father occupying the place and being clothed with the powers of a tutor.
“ An under-tutor ad hoe shall be appointed by the court, contradictorily with whom the proceedings shall be carried on.” R. C. C., 222.

The foregoing is a new article, first appearing in the Revised Civil Code of 1870; and its effect is merely to put the father — in case both the mother and father are living — in the place and stead of a tutor pro hac vice.

Or in the language of that article, “ the father (occupies) the place (and is) clothed with the powers of (a) tutor;” but he is not a tutor. The law empowers a father who is thus circumstanced to officiate in the legal proceedings leading up to a partition, to be effected through the instrumentality of a private sale, as though he were tutor for his minor children; but it does not say that he shall subscribe any oath, furnish any surety, take any inventory or cause any mortgage to be registered against himself as conditions prece - dent to his’ exercise of that function. It simply clothes the father “ with the powers of the tutor;” and we are not authorized to extend, or by construction to enlarge its precepts.

II.

This proposition was contended for and decided adversely to de - fondants’ present contention in Johnson vs. Barkley, 47 An. 98.

In that case we said:

“The immovable property was within the limits of Louisiana, and the court having jurisdiction of the suit, for partition, was authorized to direct the proceedings of family meetings here in the interest of the minors residing abroad. Not being residents of the State, their residence, for the purpose of the partition and for the family meeting, was at the situs of the property. It would be different if they were residents of another parish of the State.
“ While this court, perhaps, has referred to judicial proceedings in the interest of minors residing out of the State, as cumulative and adding to the protection of their interest, it was never contemplated that family meetings could be held abroad for the alienation of the immovable property of the minor in this State. James vs. Meyer, 41 An. 1100; James vs. Meyer, 43 An. 44; Succession of Lewis, 10 An. 791; Bailey vs. Morrison, 4 An. 523.”

We are of opinion that that case was correctly decided, and it is adverse to the defendants’ contention.

III.

That the family meeting recommending the sale of the interests of the minor legatees in the realty that was sold should have, also, made some provision for a proper investment of the funds which were realized thereby is, perhaps, true; and such a course would -justly conform to our ruling in Koehl vs. Solari, 47 An. 890, in which we said:

“ Considering that the proceeds will represent the property, the ¡shares of the respective parties in interest are transferred thereto. .But to make it certain that the property shall pass free of any ■encumbrance, we think it best that all of the proceeds of sale shall ¡be deposited in the registry of the court, and there remain until the amount coming to the minors shall be actually reinvested upon the order of court upon the recommendations of a family meeting,” etc.

According to the foregoing statement both the cash and notes “that are to go to the Allen heirs and Smith heirs were, under a clause in the act (of sale), deposited in the hands of the executors,” etc., and in our opinion same ought to so remain deposited until such time as the same shall be invested for the minors in pursuance of an order of court and the recommendations of a family meeting, as a security to the title of the purchasers, and the minors’ rights as well.

True it is that the property in question came to the minors as an inheritance by testamentary bequest, and, consequently, unaffected by any legal mortgage against their fathers, respectively, as tutor : yet a large sum of money is to be paid by the defendants therefor into the hands of their fathers as tutors pro hae vice, and its investment in some satisfactory manner will prove an additional safeguard to all parties in interest.

It is therefore ordered and decreed that the judgment appealed from be so amended as to require that the purchase price of the interests of the minors remain on deposit in the hands of the executors until the funds are invested pursuant to an order of court and the recommendations of a family meeting, and that as thus amended same be affirmed — costs of appeal to be paid by the appellee.


text:
    No. 12,116.
    E. Cucullu, Administrator of the Succession of Francois Lacroix, Deceased, vs. J. M. Bilgery et al.
    An adjudicatee at judicial sale to whom is conveyed a judgment decreeing the nullity of a tax sale acquires no right, title or interest in the property.
    Such a judgment is analogous to one that fixes a status, recognizes the capacity of an heir, the right to a homestead, the nullity of a marriage, the validity of a will or the right to a divorce.
    Such a judgment, when once pronounced, has accomplished its purpose, and is not subject to execution like a money judgment is.

      A PPEAL from the Oivil District Court for the Parish of Orleans. il Ellis, J.

      Frank L. Richardson and Emile Pomes for Plaintiff, Appellee.

      Bouse & Grant for Defendants, Appellants.
    Argued and submitted May 7, 1896.
    Opinion handed down May 18, 1896.
    Rehearing refused June 25, 1896.
   The opinion of the court was delivered by

Watkins, J.

This is a petitory action for the recovery of certain improved real estate situated in New Orleans, and from a judgment in favor of the plaintiffs the defendants have prosecuted this appeal. A fair synopsis of the issues involved is as follows, viz.:

In 1877 E. T. Parker, administrator of the succession of Lacroix, brought suit against Joseph Bilgery for the annulment and revocation of a tax adjudication and sale to him, of certain properties, and that in suit among others. That suit resulted in a judgment in favor of the plaintiff for the recovery of the property and its rents and revenues, aggregating several hundred dollars; and from that judgment an appeal was taken by the defendants, which was ultimately dismissed by this court in 1894.

In January, 1894, the present administrator of the succession of Lacroix instituted this suit against the defendants for the recovery of the property; and it was resisted, upon the ground that they had acquired at public judicial sale made in the succession of Lacroix, after due proceedings and advertisement, “ the claim in said suit, and the judgment recovered by Parker, as administrator of the succession of Lacroix,” etc., and that the legal effect of said adjudication was to vest a complete title, to the property in them.

A great many questions, more or less interesting and complicated, have been raised and argued by counsel on either side, but which, in our opinion, need not be examined and decided, as, in our conception, the decision must turn upon the question whether title to the property purported to have been passed by the adjudication and sale to defendants.

Referring to our opinion in the case of E. T. Parker vs. Joseph Bilgery et als., 47 An. 1348, we find it to be a fact thatthe plaintiff’s motion to dismiss the appeal was grounded upon the acquiescence in the judgment appealed from by the defendants; and that their acquiescence was alleged to consist in the alleged purchase by the defendants of the aforesaid judgment, from which their appeal was taken during the pendency of the appeal. That upon finding, from the proof exhibited, that this was the real and actual condition of affairs, we dismissed the defendant’s appeal; and the legal effect of our finding was, to leave the judgment appealed from in full force, as though no appeal had been taken. Inasmuch as we had much of the testimony before us then which is exhibited to us now, we feel at liberty to make use of the views therein entertained and the facts therein found, in so far as they apply to the question of title vel non, as the same parties are now before us.

“The judgment appealed from,” our opinion says, “ is one obtained by the succession of Francois Lacroix, of which E; T. Parker was administrator, against the succession and heirs of Joseph Bilgery * * * which was rendered and signed on January 31, 1879, now pending on appeal to this court; and judgment decreeing that the succession of Francois Lacroix is the owner of a certain lot of ground, and (to) recover from the widow and heirs of the late Joseph Bilgery the sum of $999.75 to be paid in certain designated proportions, not necessary to be particularly mentioned. * * * The ground of the motion is to the effect that since taking the appeal the heirs of Joseph Bilgery have acquiesced in the judgment, by attempting to buy said judgment at a pretended judicial sale at public auction, though said Bale was without authority, and while the succession, as appellee, was not represented. * * * Appellants appeared and answered the motion to dismiss, and averred and represented that ‘ the judgment recovered by said E. T. Parker, administrator as aforesaid, from which the appeal herein was taken, and the claim in that suit was sold on the 7th of March, 1879, at public auction by Placide J. Spear, after due proceedings and advertisement, pursuant to an order of the Second District Oourt for the parish of Orleans made in the succession of F. Lacroix, which court had jurisdiction over the administration of said succession; and the defendants and appellants in this cause purchased the said claim and judgment in said suit, and paid the price of one thousand one hundred and fifteen dollars in cash to said auctioneer.”

Thus we have it judicially affirmed as a fact — in the opinion of this court as well as in the judicial averments of defendants and appellants in that suit, who are defendants and appellants in this — that the auctioneer adjudicated and the defendants and appellants “purchase.d the claim and judgment in said suit ” of E. T. Parker, administrator of the Succession of Francois Lacroix vs. Joseph Bilgery, and not the realty which was involved in that suit. We have it affirmed, also, that the judgment annulled the tax adjudication and sale of the property in suit, and condemned the defendants to make restitution of the sum of nine hundred and ninety-nine dollars and seventy-five cents, as the rents and revenues thereof, and the judgment of this court dismissing their appeal left that judgment in force —subject, of course, to any rights thereon which they had intermediately acquired during the pendency of the appeal.

On this statement it is quite evident to our minds that the title to the property did not pass to the defendants as adjudicatees at the auction sale.

The judgment decreeing the nullity of the tax sale to Joseph Bilgery did not become absolutely final until our decree was rendered dismissing the appeal; and the judgment itself merely fixed and decided the status of the title to the property, and decreed the plaintiff entitled to its reven'ues. Once this judgment was pronounced, its mission was at an end and its object was accomplished. This judgment had the effect — in so far as the property was concerned — of disencumbering the title of Lacroix’ succession of an impediment to the exercises of the rights of ownership; but it was a money judgment to the extent of the rents and revenues that it adjudged the succession entitled to recover, and no further.

In respect to the property the judgment merely fixed its status, and, in this respect, it is somewhat analogous to a judgment which recognizes the capacity of an heir, the nullity of a marriage, the validity of a will, or the right to a divorce. In. this class of cases, the rendition of the judgment is the final evidence of a right, or title; but, unlike a decree that requires a sum of money to be paid, it is not a proper subject of seizure and sale, separate and apart from the property, the title to which it applies. Such a judgment is only susceptible of execution by means of a writ of possession; and that the defendants had already under their tax title. Consequently, it carried to them no further or additional insignia of ownership. In so far as “ the claim” of the succession of Lacroix’ is concerned— that is to say, the judgment it recovered against the defendants for rents and revenues of the property — it was a legitimate subject of seizure and sale; but in this suit it is of no consequence, as it is not an issue, this being a petitory action pure and simple.

We are of the opinion that defendants acquired no title to the real estate in controversy under the adjudication to them in the succession of Francois Lacroix; and for like reason their plea of ten years’ prescription is not well founded, because their title is not such as to transfer the ownership of the property, in the sense of Revised Civil Code, 3484.


text:
    No. 12,203.
    State ex rel. Wells-Fargo Express Company and J. J. Davidson, Agent, vs. R. B. Martin, Justice of the Peace of Third Ward of Lafayette Parish.
    The writ oí certiorari, issued' under the supervisory jurisdiction of the Supreme Court, can not be employed for the purpose of inquiring into the correctness of a judgment, when the forms of law have been followed.
    Its only province is to pronounce upon the validity of a judicial proceeding.
    QN APPLICATION for a Writ of Certiorari.

      J. L. Kennedy and JR. G. Cobb for Relators.

      William Campbell for Respondents.
    Submitted on briefs June 17, 1898.
    Opinion handed down June 22, 1896.
   The opinion of the court was delivered by

Watkins, J.

The ease of the relator can be most concisely stated in the language of his counsel’s brief, from which we have made the following extract, viz.:

“ The facts as set forth in the application and shown by the certified copy of the record of the case, A. Cardona, Jr., vs. Wells-Fargo Express Co., J. J. Davidson, agent, on docket of R. B. Martin, justice of the peace, Third Ward, Lafayette parish, are that on or about the 2d May, 1896, a crate of strawberries was sent by express to Cardona, a resident of the town of Lafayette, from the railroad station, Iona, in the parish of Calcasieu; said property being valued at one dollar and fifty cents, express charges (thirty-five cents) to be paid by consignee on delivery; that on same day the strawberries were transported to Lafayette, and relator’s agent sent them to Cardona’s place of residence or boarding house, to be delivered to him by the porter of the office; that said employee was informed that the consignee, Cardona, was absent from the town and would not return for several days, and thereupon relator’s agent, Cardona having left no one with power to act for him, sold the goods, which were of an exceedingly perishable nature, for the best price obtainable (one dollar and five cents), and on the return of Cardona about the 8th May, tendered him the balance after deducting the charges of the express company, which amount Car-dona refused to receive, but instituted suit for the original cost price of the property and the additional sum of five dollars for attorney’s fees, in the Magistrate’s Court of Third Ward, Lafayette parish; and on the trial of the cause judgment was rendered for the two amounts, aggregating six dollars and fifty cents and costs, from which judgment no appeal will lie to the District Court.
“ The question that presents itself is, whether under Art. 90 of the Constitution this court can exercise control and supervision over the action of the justice of the peace of Ward No. 3 of Lafayette parish, under the state of facts shown by the record in this case. ’ ’
“It appears from the record that the agent, Davidson, appeared at the trial and defended the case so far as he was concerned. That he was authorized to represent the express company, his employer, is not conceded. The domicile of the Wells-Eargo Express Company in Louisiana is at Nos. 18 and 20 Union street, New Orleans. Cardona, the plaintiff in the case, sued the company in Ward 3, Lafayette parish, on a contract, by the terms of which the express company engaged and undertook to convey certain property from one place to another for a certain sum, or in the event of failure to perform its contract to pay a certain stipulated sum contained in the receipts and agreed upon by the parties as the value.
“ The action instituted by Cardona against relator was as to the principal claim — the value of the property expressed — based and founded on the contract, and not an action ex delicto.”

Again:

“ In the next place we complain that the judgment rendered by Mertin, Justice of the Peace, was arbitrary, unjust and without warrant of law.
“It was shown on the trial of this case that relator had complied with the terms of its contract, by transporting and offering to deliver the property to the consignee; that he was absent and would continue to be absent for nearly a week; that he left no agent to receive the freight; that the goods were of a perisha Re character — in fact, one box of the eight contained in the crate had, before receipt, become rotten and worthless and the remainder would become valueless in twenty-four hours.
‘'The agent of relator, in order to prevent the entire loss of the consignee’s property, sold the same before it had become utterly valueless, as it is shown that it would have done in one more day, and on consignee’s return, some days afterward, tendered him the proceeds of the sale, less express charges, to which the company was entitled.
“ Now, it is evident that consignee, Cardona, had no cause of action against relator and. any judge conversant with the law would have so held. Relator as a common carrier and mandatory of Car-dona had certainly ‘ fulfilled the trust confided to it in a manner more advantageous to the principal’ (Article 3011, C. C.) by disposing of the property for his benefit, rather than allow it to become utterly valueless.
“ The law authorizes the carrier to dispose of property under the circumstances existing in this ease.”

Finally:

“ Relator’s counsel make no contention that a corporation or individual can not be sued for any amount and for any legal cause in the courts established by the Constitution and laws of the State, but they do contend and strenuously urge that individuals can not be permitted to use the courts and forms of law for the purpose of enforcing a claim or cause of action fictitious, illegal and entirely unauthorized by justice, equity or the law of the State; to obtain and execute judgments in such' actions, unappealable in amount, and thus practically deprive the selected victim of both right and remedy.”

Per contra, the respondent represents that said proceedings are and were not null and void, but that his court had full and complete jurisdiction; and that, even if it was without jurisdiction ratione personae in the first instance, that question has been closed by the judgment, which was in said case pronounced against relator without protest or exception on its part — it having joined issue therein by answering to the merits.

He further avers that, in his opinion, the demand and judgment for five dollars as attorney’s fees were a proper allowance as “ punitive damages for the non-performance of said company’s contract of delivery as contemplated by law; and that the proceeding instituted in said case was, in no wise, for the purpose- of preventing relator from obtaining justice by an appeal.”

He further represents that, on the trial, the amount demanded was clearly established by the evidence.

A copy of the original record of the suit entitled A. Cardona, Jr., vs. Wells-Fargo Express Company, in the respondent’s court, has been produced and filed with the transcript in this cause.

That record shows that the defendant was duly cited and that he appeared and, through counsel, answered; and that the parties, plaintiff and defendant, were represented by their respective attorneys during the progress of the trial of said cause.

Judging from the physical appearance and size of the record and from the amount of testimony which is therein contained, the trial must have been An interesting and protracted one — the testimony having been reduced to writing pro et eon.

After having heard the testimony of the witnesses the respondent prepared his “ reasons for judgment,” signed and filed them in the record — stating, in extenso, what he deemed to be a fair synopsis of the evidence adduced at the trial.

Thereupon he rendered a formal judgment in favor of the plaintiff, decreeing him to have and recover of and from the defendant the sum of six dollars and ten cents, to-wit: one dollar and fifty cents as the value of one crate of strawberries and five dollars as attorney’s fees in lieu of actual and punitive damages.

Without taking into consideration the justice or correctness of the judgment rendered, we feel bound to affirm that rarely, if ever, a case has passed under our consideration, coming from any court of limited jurisdiction, which bears, so evidently, the impress of faithfulness and care as that to which we have just adverted; and in our ■conception of this court’s jurisdiction under the writ of cert ¡orar relator has not made out a case entitling it to relief at our hands.

Primarily, the province of that writ is to “ pronounce on the validity of a judicial proceeding. C. P. 828, No. 3; 855.

This writ is granted only in case ‘ ‘ the suit is to be decided in the last resort and where there lies no appeal by means of which proceedings absolutely void might be set aside,” etc. C. P. 857.

In giving an interpretation of this court’s supervisory power under Art. 90 of the Constitution to issue and maintain the writ of certiorari, it has frequently held that it can not be employed to inquire into the correctness of a judgment rendered when the forms of law have been followed and when the court had jurisdiction.

That the supervisory power of this court must not be confounded with its appellate jurisdiction. State ex rel. Matranga vs. Judge, 42 An. 1089; State ex rel. Valeton vs. Skinner, 33 An. 257; State ex rel. Block vs. Judge, 41 An. 179; State ex rel. Chandler vs. Judge, 43 An. 826; State ex rel. Wintz vs. Judge 32 An. 1225; State ex rel. Patton vs. Judge, 40 An. 393; State ex rel. Weber vs. Judge, 32 An. 1092; State ex rel. Insurance Company vs. Judge, 36 An. 316; State ex rel. Race vs. Judges, 37 An. 120; State ex rel. Wood vs. Judge, 38 An. 377; State ex rel. Liggins vs. Judge, 47 An. 1022; State ex rel. Morere vs. Judge, 44 An. 1100.

And in the recent case of State ex rel. District Attorney vs. Judge, 48 An. 787, all pertinent eases have been carefully collated.

These principles have been frequently applied to judgments rendered by justices of the peace, viz.: State ex rel. Unbehagan vs. Justice, 35 An. 365; State ex rel. Gooch vs. Justice, 38 An. 968; State ex rel. Waller vs. Justice, 47 An. 27; State ex rel. Broussard vs. Justice, 39 An. 776.

The authorities are all against the contention of the relator.

It is therefore ord.-red and decreed that the preliminary writ herein granted be set aside, and that the relief prayed for by the relators be refused at their cost.


author: Nicholls, C. J. Watkins, J. Watkins, J.

text:
    No. 11,954.
    J. B. Vinet, Dative Testamentary Executor of the Succession of Alexander Weems, vs. Joseph R. Bres and James G. Richardson.
    Motion to Dismiss.
    Whore a vendor holding eight notes o£ $600 each, secured by special mortgage and vendor’s privilege, claiming that a third possessor of the property had assumed payment of the notes, proceeds directly against him, praying for a personal judgment for the amount of two matured notes, ashing for reóogntion of the mortgage as securing all the notes and for a sale for cash ¿o satisfy the amount due, and on terms of credit to correspond with the unmatured instal- ■ ments, defendants against whom judgment has been rendered in conformity to the prayer, is entitled to an appeal to the Supreme Court,when he denied in the lower court the existence o£ the assumpsit declared on.
    A judgment in favor of plaintiff on the issue raised would be res judicata against the defendants as to the existence of the whole assumpsit.

    On the Merits.
    Unless the appointment of an executor or curator is absolutely void, acts done by him in such capacity are binding and valid. Mere illegality of such an appointment will not vitiate acts done under it.
    Whether a stipulation pour autrui has been availed of by the third person for whose advantage same has been made is a question of fact which must be ascertained from contemporaneous and surrounding circumstances, and are not confined to the recitals of the act in which the obligations of the contracting parties are to be found.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Chretien & Suthon and J. C. Gilmore for Plaintiff, Appellee.

      R. G. Cobb for Defendants, Appellants.
    Argued'and submitted on the merits February 27, 1896.
    Opinion handed down March 23, 1896.
    Behearing refused June 25, 1896.
    On Motion to Dismiss.
    Plaintiff alleged that Alexander W. Weems was the owner of a certain body of land in St. Tammany parish; that on the 28th of'August, 1890, he sold the same to William L. Wooten for six thousand dollars, the price evidenced by ten notes of the purchaser to his own order, and by him endorsed in blank, each for six hundred dollars, maturing at different dates, which notes were secured by special mortgage and vendor’s privilege on the property sold.
    That on the 12th of January, 1893, Wooten sold the property to the defendants, Bres and Richardson, by act under private signature duly recorded in the parish of St. Tammany; that the consideration of this last sale was part cash and part the assumption by the purchasers of the last nine notes given by Wooten (the first note having been paid), and the assumption of all the obligations of Wooten as purchaser in the act of sale to himself from Weems; that defendants had paid the first maturing of the nine notes assumed by them, and that the remaining eight notes (which he annexed to his petition and made part thereof) were in petitioner’s hands and belonging bo the succession of Weems, all of which notes defendants had assumed and promised to pay and discharge to Weems and plaintiff; that two more of the notes had matured; that defendants neglected and refused to pay the same.
    Judgment was against the defendants, in solido, in the sum of twelve hundred dollars, with six per cent, interest from August 28, 1890, until paid, and ten per cent, attorney’s fees allowed by the act; recognizing the two notes sued on as bearing vendor’s privilege and special mortgage on the property described concurrently with the mortgage notes not yet due; reserving the right of plaintiff, or any or all holders of the unmatured notes therein, and recognizing the vendor’s privilege and special mortgage on the said property.
    At a later date defendants alleged by way of exception, first, that plaintiffs had shown no cause of action against them in his petition, and secondly they alleged that if the property, of which they admit possession, be bound for the payment of the notes attached to the petition, they denied any responsibility for the payment of the same to plaintiff.
    They averred that as third possessors of said property (the mortgaged property), they could not be sued by direct action, but plaintiff must proceed by the hypothecary action; that no notice had been given to Wooten, r.orto his representatives, demanding payment; nor had any notice or demand been made upon defendants prior to the institution of the suit, for which reason no cause of action had been shown, and the suit should be dismissed.

      They admitted in answer the sale by Weems to Wooten, and that Wooten and his heirs and representatives were bound by the terms of the sale and mortgage, but they denied that there had been at any time before, or was then, existing any contract or agreement between Weems and themselves, and denied that they were then, or-ever had been, under any obligation to pay Weems or his heirs or representatives the notes signed by Wooten on the 28th of August, 1890; that there has been any novation of the debt contracted by Wooten on that day by the substitution of themselves for the original debtor. They averred that at the time of the contract between Wooten and themselves, Weems refused to novate the debt due him by Wooten, and he never during his lifetime accepted any stipulation for his benefit in any contract between themselves and Wooten; that, on the contrary, knowing the existence of such stipulation at the time it was made, as well as the contemplation of making it, prior to its being made, he failed, neglected and refused to acknowledge or accept the same; they averred that a reasonable time for deliberation upon and acceptance of the terms of whatever stipulation made for his benefit had expired long before his death, and that his legal representatives had no longer any right to claim the benefit of the same as against respondents, except as to the extent of the value of the property held by them, subject to the mortgage executed by Wooten in favor of Weems; they denied any privity between themselves and Weems arising from any contract or obligation entered into between themselves and Wooten, or that any obligation had arisen from any such contract from themselves to Weems, or his representatives, and they further denied any solidarity of obligation in any contract that they may have heretofore made with Wooten.
    The District Judge rendered judgment in favor of plaintiff and against the defendants, in solido, in the sum of twelve hundred dol - lars, with six per cent, per annum interest from the 28th of August, 1890, until paid, ten per cent, on the aggregate amount of principal and interest for attorney’s fees and all costs of suit, the whole with vendor’s lien, privilege and right of pledge on the property described in plaintiff’s petition. The judgment further recognized that the two notes sued on, and for which the judgment was given, were secured by vendor’s mortgage lien and- privilege and right of pledge, concurrently with the other notes given for the credit portion of the purchase price of said property and not yet due; decreed that the rights of any holder or holders of said notes not yet due be recognized as fully secured by said vendor’s lien, privilege and right of pledge as granted by the act of sale, and that said property be sold for cash, in the manner prescribed by law, to a sufficient amount to cover and pay the notes past due, with interest, attorney’s fees and costs, and for the balance on such terms of credit as were granted in the original act of sale and secured by all the security clauses and conditions recited in said act as to principal, interest, attorney’s fees fixed at ten per cent and costs.
    Defendants moved for and obtained an order for a suspensive or devolutive appeal.
    Defendants furnished a bond for $2600 as being for a suspensive appeal. The appeal was dismissed by the District Oourt as a suspensive appeal on the ground that the appeal bond was too small for that character of appeal.
    Plaintiff moved the Supreme Oourt to dismiss the devolutive ap - peal on the ground that the matter in dispute is, as to amount, below the appellate jurisdiction of that court.
    Appellants urge that “no question is raised by appellants as to the validity of the obligation of Wooten to Weems, the note or mortgage and vendor’s privilege securing their payment, nor is there any dispute by appellants of the right of plaintiff to proceed against his obligor personally, or against the property mortgaged via executiva for any part or the whole of the debt, and, of course, the amount claimed in such proceeding would fix the jurisdiction, but appellants do dispute and put at issue the right claimed by plaintiff in this case to sue them on a contract to which plaintiff’s testator was no party, and finally fixed by a judgment in this case their liability and indebtedness for the sum of four thousand eight hundred dollars, with six per cent, interest thereon from 28th August, 1890, whether the whole be due or part.
    “ Deciding judicially that they owe and are bound to plaintiff for a part of the debt alleged to have been assumed by the contract of 12th January, 1898, between themselves and Wooten, ex necessitate rei, would decide and adjudge them debtors personally to plaintiff for the whole amount of the alleged assumed indebtedness due and to become due, and this fact of appellants’ liability for the entire indebtedness of Wooten to Weems, established by the judgment appealed from, would, if sustained, become res judicata on this matter.
    “ It is appellee’s right to site and stand in judgment against appellants on a contract by the terms of which more than two thousand dollars is involved, which is denied by appellants, and this constitutes the matter in dispute and not the amount of the notes, either due or to become due, incident of the judgment determining the rights of the parties under the contract.”
   The opinion of the court was delivered by

Nicholls, C. J.

Defendants prayed that plaintiff’s demand be rejected, and that they be dismissed. They asked no affirmative relief; their prayer was purely defensive. There was no reconventional demand.

Only one judgment was rendered in the case.

It has been sometimes stated that the jurisdiction governing'a plaintiff’s demand is to be tested by that demand, and not by the defendant’s position before the court. Buisson vs. Staats, 9 An. 236; Gustine vs. N. O. Oil Co., 13 An. 510; Flood vs. Shamburgb, 3 N. S. 626; Succession of Hoover vs. York, 30 An. 754.

But defendants maintain that this doctrine has to be taken with limitations. They assert that though plaintiff’s present claim may be for a smaller amount than would properly fall under the jurisdiction of this court, yet it is dependent upon the existence and proof of the existence of a contract, which, as to its amount in its entirety, and as to its unpaid instalments, is within our jurisdiction.

That defendant in the lower court put at issue the existence and validity of that contract; that, therefore, the “ matter in dispute ” for the purpose of appellate jurisdiction, is the amount involved in that of the entire contract, whose existence or validity is so denied, and the unpaid instalments. That although the plaintiff may not (in form) present as a matter for investigation by the court, the existence and validity of the contract, yet he, in fact, tenders that issue as part of his case, and that wheri defendants’ defence is visceral to the attack, the whole matter is thrown open for the court’s action.

'We have examined the following authorities bearing upon this point:

Peychaud vs. Weber, 25 An. 133; Lartigue vs. White, 25 An. 291 and 325; State ex rel. School Board vs. Cousin, 31 An. 298; Ellis vs. Silverstein, 26 An. 47; State ex rel. Holbrook vs. Judge, 24 An. 601; State ex rel. Lyons vs. Judge, 21 An. 66; Beirne vs. Gill, 34 An. 7; O’Hara vs. Succession of Davidson, 26 An. 76; State ex rel. Bobet vs. Judge, 42 An. 1084; Ready vs. New Orleans, 27 An. 170; Citizens Bank vs. Webre, 44 An. 335.

In the case at bar the plaintiff presented himself as the holder and owner of all the notes remaining unpaid, given by Wooten to Weems. He attached them to his petition; he asserted that defendants had personally bound themselves for the payment of all these notes due and not due through an assumpsit of the same, thought they only asked a present personal judgment for twelve hundred dollars.

In spite of defendant’s denial of the existence and binding force of this assumpsit, they were, by reason of the court’s holding it to be valid and binding, condemned personally to pay the partial amount now claimed.

We think the judgment rendered in this case, so far as the question of the assumpsit is concerned, would be res adjudieata in any future suit between the parties upon the remaining notes amounting to over three thousand dollars. Louisiana State Bank vs. Orleans Navigation Company, 3 An. 294.

The mere division of the purchase price, which defendants are claimed to have assumed, into instalments, did not break the unity or singleness of their own contract, considered from the standpoint of its.existence and validity. Nesom vs. D’Armond, 13 An. 294.

Defendants are not parties to the notes; quoad them the suit ia upon the assumpsit.

Should this motion for the dismissal of appeal be sustained, all issues raised below would be withdrawn from our consideration.. Should the appeal be maintained and there be any issue in our opinion not cognizable by us, we can so announce on the final decree.

We are of the opinion that the appeal should stand; the motion to dismiss is therefore overruled.

On the Merits.

Watkins, J.

This case is the same one we had before us, and the motion to dismiss which, for want of jurisdiction, we decided on the 16th of December, 1895, and we refer to our opinion thereupon for a statement of facts applicable to the merits.

I.

The first thing to be considered is defendant’s exception to the capacity of J. B. Vinet, public administrator of the parish of Orleans, to be appointed dative testamentary executor of the succession of A. W. Weems, Sr., deceased, his contention being that he had no power or authority conferred upon him by law to qualify or act as executor of said succession, and. that he had, consequently, no capacity to institute this suit and stand in judgment.

For this position he assigns as a ground that Weems had no domicile or residence in the parish of Orleans at the time of his death, or prior thereto, and that he had no property situated in said parish at the time of his death. That, on the contrary, he was, at the time of his death, a citizen and resident of the parish of St. Tammany, and had been for a great many years prior to his death, and that his principal establishment was therein situated. That he never had, nor ever acquired a domicile elsewhere, and his succession was opened therein by his death, and that same could not be lawfully administered in the parish of Orleans.

From the foregoing it is clear that the want of capacity alleged consists in the fact that the public administrator of the parish of Orleans could not be legally appointed dative testamentary executor for a succession of a deceased citizen and resident of the parish of St. Tammany, not that his appointment was in itself irregular, or illegal, as not founded upon a proper order of court or the like.

On this question considerable testimony was taken which, in the view we entertain of the legal questions involved, will not be necessary for us to consider, and that view is that unless the appointment be absolutely void his acts can not be questioned by a litigant in a court of justice.

In Succession of Dougart, 30 An. 268, it was said:

“As to illegality of the appointment of the executrix it is only necessary to say that the question can not be raised in this indirect :and collateral way. Whether legally or illegally done she was appointed and qualified and must be treated as the lawful executrix vnntil her appointment is revoked in a direct action.”

In the matter of the estate of Altemus, 32 An. 364, it was said:

“It seems to be considered, and indeed we do not think it can be denied, that unless the appointment of administrator or curator is absolutely void the acts d ne by them in such capacities are legal and binding; for it is now elementary that the mere illegality of the appointment will not vitiate the acts done under it. This is so true that the law will not allow a suspensive appeal from a decree appointing such official, but declares that such decrees shall have immediate effect, and, therefore, regardless of the legality or the illegality of the appointment.”

In Cloutier vs. Lemée, Syndic, 33 An. 305, it was said:

“ Inquiries touching the legality of (the defendant’s) appointment are irrelevant. While actually exercising the office he must perform its duties, and the illegality of his appointment will not vitiate his acts.” Citizens Bank vs. Bry, 3 An. 633; Gradnigo vs. Moore, Curator, 10 An. 670; Dorsey vs. Vaughan, 5 An. 156; Beard vs. Gresham, 5 An. 611; Succession of Lehman, 41 An. 987.

On the foregoing authorities we are of the opinion that the defendant can not, in this collateral manner, attack the legality of the executor’s appointment, and that he has the undeniable right to institute this suit and stand in judgment, conceding for the argument that the testimony shows that his appointment was illegal on the ground stated.

If every party sued by a succession representative could litigate his capacity, its settlement might be indefinitely prolonged.

The judge a quo properly overruled the exception.

II.

The principal question for decision is whether, in the sale from W. L. Wooten to the defendants, on the 12th of January, 1893, the latter assumed the payment of the nine notes of the vendor, Wooten, and all of his obligations as purchaser of the property from the deceased

They deny that they incurred any personal liability for the- payment of those notes to Weems, the deceased, or to his executor since his death; and aver that they are third possessors of the property mortgaged to secure their payment, the enforcement of which can only be obtained in an hypothecary action. Or in other words, while they admit the binding force of the recitals of the deed under which they acquired the property, and that they became thereby bound for the amount of their vendor’s debt and mortgage as part of the price they agreed to pay therefor, they aver that there has not been at any time, nor is there now, any agreement on contract on their part “ to pay to the said Weems, deceased, or his heirs or representatives, the notes signed by W. L. Wooten, on the 25th of August, 1890,” etc.

They further aver that the stipulation of said deed did not constitute a novation of the debt by the substitution of themselves as debtors in the place of Wooten, the maker; and that during the lifetime of Weems they were never so considered, accepted or treated by him.

It appears from the act of sale that Wooten conveyed the proPetry to the defendant with full subrogation to all of his rights and actions against all previous vendors, for the price of six thousand seven hundred and ninety-nine dollars and fifty-six cents, of which the sum of five hundred dollars was paid in cash, and for the balance of said purchase price the said Bres and Richardson thereby assumed and agreed to pay nine promissory notes and interest thereon at the rate six per cent, per annum of six hundred dollars each, payable respectively in two, three, four, five, six, seven, eight, nine and ten years from the 28th of August, 1890, being nine of the ten notes given by the said Wooten as the purchase price of said land from said Weems, which notes are secured by mortgage and vendor’s lien on said land, and said mortgage and vendor’s lien were thereby kept in force and perpetuated until the full and final payment of said notes and interest.

The deed further recites that: “It is further agreed that the present purchaser shall have the same right (as that) given to said Wooten by the said Weems (of) calling in and paying any and all of said notes at their option, and at any time they may choose, on paying principal and interest accrued up to the time of such pay - ment or redemption.”

That act is one under private signature, and it bears the signatures of Wooten, as well as that of Bres and Richardson.

The parol testimony shows that this act of sale was executed immediately previous to the death of Weems, and that same was based upon the fact that Wooten had requested of Weems a ninety days’ extension of the payment of his second note, and that the defendants had consented to purchase the property at the price stipulated if the extension was granted. That Weems granted the proposed extension shortly previous to his departure from New Orleans, and the defendants having been notified of that fact accepted the deed from Wooten, and had it recorded just before Weems’ death. That immediately after his death Weems’ attorney called to see Richardson in reference to the matter, and expressed regret that the sale had not been perfected, and Richardson informed him that it had been completed, and furnished him the deed, as confirmation of the fact.

Objection was made by defendants’ counsel to the introduction of this testimony, on the ground that parol could not be offered to prove a state of facts at variance with the recitals of the act of sale. The judge a quo overruled the objection on the ground that this offer of testimony did not violate the rule of law invoked, because it was only intended to show that Weems was apprised of the assumption by the defendants, and had consented to extend the payment of the note, at the time past due, on the faith of it.

In thus ruling the judge committed no error. The obligations of the defendants to Wooten were incorporated in the act of sale, but Weems was not a party thereto and did not sign it. But being the holder of the notes and Wooten having applied for an extension of the one first falling due, Weems was interested to know his means of making payment when the extension should have expired; and what more likely than that he should have informed Weems of his intended sale to the defendants and of the terms of the same, and that Weems should have consented to the extension upon that ground.

The statement of Richardson was taken, also, without materially altering the force of the plaintiff’s evidence on that question.

We are of opinion that the evidence discloses the existence of negotiations between Weems and Wooten, with respect to the extension of the payment of the second note, which went to its maturity on the 28th of August, 1892, and the payment of which the defendants assumed in the act of sale from Wooten on the 12th of January, 1893, four and one-half months after its maturity.

A witness for the plaintiff distinctly states that “ when the second note came due (he thinks) there was an extension then. He (Wooten) concluded to sell out the island, and Richardson and Bres, who were friends of his, offered to buy the island if some short extension could be obtained on the note. Mr. Weems was willing, as these letters will show, which I offer, to grant this extension, and they made the purchase of the island and recorded the deed, assuming Wooten’s obligation under the mortgage and these unpaid notes, and Wooten went to the country and took fever or something and died up there. Shortly after Weems died.”

This statement makes it clear that Weems was still living when Wooten executed a title to the defendants, because Wooten’s signature is appended to the deed, and he subsequently died prior to the death of Weems.

If an extension of the second note had not been already agreed upon between Wooten, maker, and Weems, payee, with the knowledge and concurrence of Bres and Richardson, it is unlikely that Richardson should have employed the phraseology that he used in the act of sale which he prepared for the parties to sign — that is to say, that the sale was made in consideration of the sum of six thousand seven hundred and- ninety-nine dollars and fifty-six cents, of which five hundred and twenty-eight dollars and twenty-six cents was to be paid in cash, and the remainder to consist in the assumption of the payment of nine notes, one of which was then more than three months overdue.

Defendants’ counsel cites us to the following authorities as governing this branch of the case, viz.: Pothier on Obligations, No. 57; Story on Contracts, Sec. 130; Gravier vs. Gravier, 3 N. S. 207; Tiernan vs. Martin, 2 Rob. 523; Mitchell vs. Cooley, 5 Rob. 240; Wiggin vs. Flower, 5 Rob. 406; Citizens Bank vs. Miller, 44 An. 199; R. C. C. 1890, 1902, 1779, 2201.

Those decisions proceed upon the same line and are to the effect that stipulations pour autrui to be of avail must be accepted by the beneficiary; but they go no farther nor say anything more than is expressed by the Code.

It declares that “ a person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract can not be revoked.” R. C. C. 1890. (Our italics.)

In our opinion the evidence satisfactorily shows that Weems consented to avail himself of the stipulation made by the defendants and that same is binding on them.

hi

Complaint is made of the judgment having been rendered against the defendants in solido, whereas their contract is joint. This complaint is well founded and the judgment should be amended so as to make it only joint.

Complaint is also made of the judgment that it decrees plaintiff to have a right of pledge, whereas there is nothing in the contract to justify it.

This complaint is also just and well founded and the decree must be amended in this particular.

It is therefore ordered and decreed that the judgment appealed from be so amended that defendants be decreed jointly to pay the plaintiffs’ demand instead of in solido, and so amended as to eliminate all recognition of the existence of plaintiffs’ right of pledge.

It is further ordered and decreed that the judgment be in all other respects affirmed, and that plaintiffs be taxed with the cost of appeal.

On Application for Rehearing.

Watkins, J.

This is a suit on two promissory notes of six hundred dollars each which bear date August 28, 1890, and went to their maturity on the 28th of August, 1893, and 1894, respectively; same being the third and fourth of the series of ten notes which William M. Wooten subscribed to represent the purchase price of a tract of land, and upon which the vendor retained a lien and mortgage to secure their payment.

The object of this suit is to recover a personal judgment against the two defendants in solido for the amount of the two notes, and the recognition of the vendor’s lien and mortgage upon the land purchased by them.

The averment of the petition is, that on the 12th of January, 1893, the original vendee, Wooten, sold the mortgaged property to the defendants for a specified sum in cash, and their assumption in the act of sale of nine of said series of ten notes, as well as all of his obligations to his vendor, Alexander W. Weems; and that, since said sale and assumption, said defendants had paid the first one of the said nine notes, the payment of which they had assumed; that is, the one falling due on the 28th of August, 1891 — an 1 have defaulted in the payment of the next two, which form the basis of the present action.

The defendants tendered, in the lower court, an exception that the plaintiff had no power or authority conferred upon him by law to qualify or act as executor of the succession of Weems, and consequently, no capacity to institute'this suit and stand in judgment ; and same having been overruled their answer was that they incurred no personal responsibility or obligation for the payment of the notes to Weems, the vendor and payee, or to his executor, and for that reason can not be sued and held personally bound for same.

Or, in other words, that they may be proceeded against by hypothecary action, but not by ordinary process or personal action.

On the trial this contention was rejected and judgment was rendered against the defendants, and same was affirmed by the unani - mous opinion of this court.

The propositions therefore which are presented for consideration on this appplication are: (1) Whether a judgment in this suit on the aforesaid notes would protect the defendants against further pursuit thereon by the creditors and heirs of Weems; (2) whether Weems, for whose benefit the assumption was made, had consented to avail himself of that advantage.

I.

On the exception, we cited a number of recent decisions of this court to the effect that the appointment of an executor can not' be attacked collaterally; that it can only be done by a direct action; that whether legally or illegally made, the appointment of an executor must be treated as lawfully made, until same has been judicially examined and annulled; that unless the appointment of an executor or administrator is absolutely void, acts done under it in such capacity are legal and binding; and it is elementary that mere illegality in the appointment of a fiduciary or public officer will not vitiate acts done under it. This is the universally accepted theory of interpretation. If parties litigant could at any time, as matter of exception or defence, raise the question of the simple illegality or relative nullity of an administrator’s appointment and traverse that issue by proof, the settlement of the successions would become practically interminable.

Certainly a litigant has no interest in that question, as he would be perfectly protected by the judgment pronounced.

On the contrary, he would have an interest in excepting to, the appointment as being an absolute nullity. There is no question of that. That was precisely the theory entertained in Grevenberg vs. Bradford, 44 An. 400, to which counsel has referred us in his application for rehearing, and in which we quoted Duson, Curator, vs. Dupré, 32 An. 896, and Simmons vs. Saul, 138 United States, 441, which are based upon the same hypothesis.

This rule obtains in other jurisdictions as well as in our own, as will be seen from an instructive opinion by the Tennessee court, Franklin vs. Franklin, 18 S. W. Rep. 61, in which it was held that if a court appoint an administrator upon insufficient evidence of the residence of the deceased “the appointment may be voidable, but it is not void.”

Counsel cites the ease of Moise, Tutor, vs. Life Association, 45 An. 736. That case is not pertinent, because it involved the legal right of a maternal uncle of certain minors residing in the city of New Orleans to receive appointment by the Oivil District Court as tutor for them and institute suit upon a policy of insurance against the defendant; and the court held that the appointee was without capacity to receive appointment or to stand in judgment for the minors. But the court, while thus holding, did not put its opinion upon the ground taken by the defendants’ counsel in this case, as will appear from the following extract therefrom, viz.:

We have no concern with the propriety of or validity of plaintiff’s appointment as tutor of the minors, nor with his right and power in that capacity to take possession of and administer the estate of their deceased parent, whose heirs they are, in this State.”
“ Guyol was domiciled and died in Kentucky, and so far as appears he left no property, real or personal, in this State. This policy of insurance is a mere non-negotiable evidence of a debt due by a New York debtor to a Kentucky creditor. The appointment by the insurance company of an agent in this State, through whom it may be sued, does not change the domicile of the company. Under no possible view can such a debt be said to have a situs, real or fieti-. tious, in this State.”

Applying to this, the principle announced in that case, the plaintiff had an undoubted right to take possession of the notes of Wooten, as the property of Weems, deceased, because they had been deposited in a bank of this city by Weems, for his personal account during his lifetime, and they there remained until delivered to the plaintiff as his executor.

The ten notes aggregated six thousand dollars in capital alone; and it is not pretended that he owned anything else of value at the time of his death. It is not claimed that Weems had at his death either heir or creditors.

The law declares that the place of the opening of a succession is fixed as follows, viz.:

1. “In the parish where the deceased resided, if he had a fixed domicile or residence in this State.

2. “ In the parish where the deceased owned inmovable property, if he had neither domicile nor residence in this State, or in the parish in which it appears by the inventory his principal effects are, if he have his effects in different parishes.

3. “ In the parish in which the deceased died, if he had no fixed residence, nor any immovable effects within this State at the time of his death.” Revised Civil Code, p. 935.

An examination of the evidence plainly shows, that Alexander Weems had, at the time of his death, “ no fixed domicile or residence in this State.” That he owned no immovable property in this State; and that the parish of Orleans is shown by the inventory, as well as by the parol proof, to have been the place where the notes given for his immovable property were situated, and which constituted “ his principal effects.”

It further shows that he did not die in this State, though he had made the city of New Orleans his abiding place previous to his departure from the State, and subsequent death.

On this showing with regard to the law, as well as to the evidence, it certainly can not be affirmed that the plaintiff’s appointment was an absolute nullity; for the law provides that “no testament can have effect unless it has been presented to the judge of the parish in which the succession is opened,” etc. R. C. C. 1644.

II.

On the second proposition the contention of the defendant’s counsel seems to be directed at the impossibility of Weems having accepted the stipulations of a deed which he never saw after same was executed; while, on the contrary, the opinion deals with Weems’ previous knowledge of the transactions which led up to the sale, with the terms of which he was fully acquainted; and more particularly with the three months’ extension of Wooten’s second note, then overdue, upon the faith of which the transaction was based.

In counsel’s brief it is admitted that Weems left Louisiana in May or June, 1892; and died on the 18th of March, 1893 — never having returned to this State in the meanwhile.

It is further admitted — and the deed itself shows the correctness of the statement — that the act was executed and recorded on the 12th of January, 1893, two months prior to the death of Weems.

It is further admitted that Wooten died on the 30th of January, 1893, and the deed shows that he signed the same on the 12th of January previous.

It is shown by the record that prior to his departure from the State Weems executed a power of attorney in favor of Mr. J. C. Gilmore, authorizing him to attend to his business during his absence, and directing the cashier of the Hibernia National Bank to surrender to him the notes of Wooten then in the bank “should the first one, falling due August, 1892, not be paid at maturity.”

Mr. Gilmore states as a witness that at its maturity, on the 21st of August, 1891, Wooten requested of Weems an extension of his first note, and that same was granted, and the note was subsequently paid. He says that when the second note fell due he again applied for an extension. That “ he (Wooten) concluded to sellout the island, and Bres and Richardson, who were friends of his, offered to buy the island, if some short extension could be obtained on the note. Mr. Weems was willing, as these letters (exhibiting them) which I offer will show, to grant an extension, and they made the purchase from Mr. Wooten of the island and recorded the deed, assuming Wooten’s obligations under the mortgage and these unpaid notes,” etc.

The correspondence in the record shows that on the 28th of November, 1892, Weems wrote a letter to Gilmore, stating that he had received a letter from Wooten requesting a ninety-day extension on his second note, then past due, and that he had replied requesting him to call on Gilmore, “ as he had charge of his interest ” in Louisiana.

That on the 16th of December, 1892, Wooten wrote to Weems stating that he was temporarily embarrassed and unable to meet the payment of his note then past due, but that he “ had found a purchaser in Mr. J. G. Richardson and J. R. Bres, New Orleans, provided he (Weems) will extend the time of the payment of the note now past due by (him) ninety days from the 1st of December, 1892.”

He further states that he therewith enclosed an obligation from them to that effect; and he requests him (Weems) to send same back to “his attorney, Mr. Gilmore,” stating that they (Richardson and Bres) “will satisfy him as to his (Weems) interest in the matter,” and that they will assume payment of all notes held by (Gilmore) against the property.”

The enclosure is of the following tenor, viz.:

“ December 16, 1892.
W. L. Wooten, Esq., New Orleans, La.:
“ Dear Sir — We will take your half of the Shell Island or Weems’ island at the price offered, provided you secure the extension from Mr. Weems of the note now past due for the term of ninety days from December 1, 1892.
(Signed)
“Jas. G. Richardson.
“ Jos. R. Bres.”

Replying to the foregoing under date December 20, 1892, he (Weems) wrote to Mr. Gilmore as follows, viz. :

“ Yesterday afternoon I received the enclosed communication from Mr. Wooten; it will speak for itself. I addressed a letter to Mr. Wooten on the same day I last wrote you, requesting that he give me a full statement as to his expectations and ability to meet his note then due and the within is his reply. I will reply by the same mail as this, that I have placed the entire matter in your hands and will be satisfied with any agreement entered into by you as my attorney and counsel I shall have no objection to granting a further extension on the note if it does not lessen my security in the future * * * I leave the matter with you,” etc. (Our italics.)

Mr. Gilmore further states that “ acting under the instructions of Mr. Weems” he called upon Mr. Richardson just after the death of Mr. Wooten, which took place on the 30th of January, 1893, in response to a call which Mr. Richardson had previously made upon him, referring to an envelope that had been left on his table during his absence.

Being asked the date of this interview he said: “ I could not fix the date, but it was in the course of the negotiations.

“ An extension had been granted on the second note by Mr. Weems, and Richardson and Bres had signed these papers.”

In speaking of the second extension on the condition that they (Bres and Rifchardson) would assume the payment of the series, he says:

“ Hearing from Mr. Weems that he was willing, I called upon Mr. Richardson and said that the extension is granted; but, I said to him, I see that Mr. Wooten is dead, by the papers. I then said, now he could pass no transfer; and he said, Oh, yes; we have passed a transfer before he went to the country, and it has been sent over and recorded.’ ”

Mr. Gilmore then said: “ Weems was satisfied with the condition, and seeing that Woofew was dead he was better satisfied than ever. * * The conditions of the letter of Richardson and Bres that this extension would be allowed was granted, and Richardson said that they had executed the deed before he (Wooten) left the city.”

On being interrogated as a witness, Mr. J. G. Richardson supplemented the statement of Mr. Gilmore, and- filled a gap in the testimony which he had left open, as-will appear from following, viz.:

Q. “I wish you to state that conversation between Mr. Gilmore, as agent for Mr. Weems, and yourself and Mr. Bres, in regard to matters that you have heard Mr. Gilmore testify to.”
A. “ Mr. Gilmore called at the office in answer to that letter that is there from Mr. Weems, giving an extension of time of ninety days on that note then past due; and he called, and Mr. Wooten was present, and he stated that it was all right — the extension,” etc. * *
Q. “ Was anything said by Mr. Gilmore to you when reference was made to the making of this sale by Wooten to yourself, with regard to having a notarial act passed?”
A. “Yes; when he first called he said that whenever we got ready to come over to his office that there was a notary there, and we could prepare the deed, which I did not do. When we got ready to make the deed I wrote it myself.”

Intermediately, between the conversation which was related by Mr. Richardson and that related by Mr. Gilmore, the deed was executed by Wooten and accepted by Richardson and Bres, and Wooten had died; but Weems was still alive, and Gilmore was his duly authorized and acting agent.

Richardson and Bres entered into possession of the property, and, subsequently, when the ninety days’ extension had expired, Mr. Richardson went to the bank and saw the date it would expire and on that day he paid the note.

The foregoing testimony was not quoted in our original opinion in extenso, but its substance only was stated. It furnishes full and complete proof that Wooten obtained a ninety days’ extension of his second note, at the time past due, on the express condition that Richardson and Bres should purchase the mortgaged property and assume the payment of Wooten’s nine notes — the one extended amongst the number. That Richardson and Bres executed an obligation to that effect, and it was forwarded to Weems, on the faith of which he granted the extension. That notice of this extension was subsequently given to Richardson and Bres, in the presence of Wooten, by Mr. Gilmore, as the agent of Weems. That immediately after that interview Richardson prepared the deed and it was signed by himself, Bres and Wooten and recorded. That subsequently it was discussed by Richardson and Gilmore; and when the extension had expired the former paid the extended note. The personal liability of the defendants is clearly established beyond the peradventure of a doubt; for Mr. Weems was living at the time of these transactions and Mr. Gilmore was both his agent and attorney.

Not only does the proof show Weems’ previous knowledge of the transactions which led up to the assumption of Bres and Richardson, but his possession of the written obligation to that effect. It shows that not only did Weems specifically agree to grant the extension to Wooten upon the faith of Richardson and Bres’ personal obligation, but due notification of Weems’ acceptance of their proposal was given by Weems to Wooten in writing, and to his agent, Gilmore; and same was personally communicated by Mr. Gilmore to Bres and Richardson in the presence of Wooten.

It shows that with full knowledge of these facts, and with direct reference to them, Mr. Richardson wrote the act of sale, which Wooten signed and he and Bres accepted; and that his action, in this respect, was subsequently approved by Mr. Gilmore, as agent, during an interview between Gilmore and Richardson.

. All these transactions occurred during the lifetime of Weems; and subsequently Richardson paid the extended note.

But there is another view of this case that is perfectly conclusive, as to the right of the plaintiff to recover, and it is that'the proof disclosing that the defendants had accepted Wooten’s proposition, and had actually purchased che mortgaged property and assumed the payment of his notes, it was within the power and competency of either Weems personally or of his agent, attorney or executor to accept said assumption and enforce the same, so long as same remained unrevoked, or not annulled by the defendants — conceding for the argument that the proof is not complete of his previous acceptance of the stipulation pour autrui defendants had made in his favor. And such subsequent acceptance is fully evidenced by this suit.

Our conclusion is that, in any view that can be taken of this case, the judgment should remain undisturbed.

Rehearing refused.