text:
    No. 895.
    Eliza Baylies vs. Tarmesia Nash, Administratrix.
    The prescription ol threo years is pleaded by defendant against the claims on which this suit is based. The plaintiff contends that the instruments on which she sues are either promissory notes and prescribed in flvo years or acknowledgments of debt and barred only by the prescription of ten years. This is correct, and the evidence is that both were signed on the same day, November 17, 1808. This suit was instituted in April, 1871, which takes both out of the prescription sustained by the judge a quo, who decided that said instruments wore receipts for money loaned.
    APPEAL from the Third Judicial District Court, parish of St. Mary. Train, J.

      A. L. Tucker and Fred. Gates, for plaintiff and appellant.
    D. Caffery, for defendant and appellee.
   Howell, J.

This suit is based on the following instruments, to wit:

“ Received cash from Eliza Baylies, in December, 1863, one thousand dollars, and in November, 1865, $441 75, up to July, 1866, the first, a further sum of $881 10, borrowed in gold one hundred dollars, to be paid when called upon.
“ (Signed) “ W. J. NASH.”
“The above is at eight per cent interest per annum.
“ (Signed) “ W. J. NASH.”
“ November 17,1868, received of Eliza N. Baylies one hundred dollars in gold, which I owe her, and is to be paid when called for.
“ St. Mary, La.
“ (Signed) “W. J. NASH.”
“ The above is at eight per cent interest.
“(Signed) “W. J. NASH.”

The defense, besides the general denial, is that plaintiff is one of the heirs of W. J. Nash, at whose death she had possession of his books, papers, and accounts; that the instruments sued on were contained in a bound book, the leaves of which were destroyed except those containing said instruments; that no consideration ever existed for the same; that they were obtained through fraud and other ill-practices; that plaintiff had no means of her own, and was supported by her father; that from 1865 to 1869, inclusive, she collected rents for her father from property in New Orleans, amounting to six hundred dollars, and never accounted therefor, which more than compensates any sum that may have been due plaintiff. The prescription of three years was pleaded. The judge a quo held that the instruments were receipts for money, and the items, except the 'one hundred dollars borrowed November 17,1868, were prescribed in three years, and gave judgment for said sum in gold, from which plaintiff appealed.

Defendant asks that judgment be amended by rejecting the whole claim.

The plaintiff contends that said instruments are either promissory notes and prescribed in five years, or acknowledgments of debt and pre-scriptible in ten years. This is correct, and the evidence is that both were signed on the same day, November 17,1868. This suit was instituted in April, 1871, which takes both out of the prescription sustained by the judge a quo.

On the merits the defense is not sustained by the evidence.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiff recover of defendant, administratrix of the succession of Wm. J. Nash, deceased, $2522 85, with eight per cent per annum interest from November 17, 1868, till paid, two hundred dollars of it to be in gold, and costs of both courts, to bo paid in due course of administration.


source: Caselaw Access Project

author: LuDELixe, C. J.

license: Public Domain

text:
    No. 925.
    Joseph T. Labit vs. M. A. Perry, Natural Tutrix.
    The court a quo, erroneously maintained defendant’s exception and dismissed this suit. There is no dispute about the capacity of the plaintiff, and an administrator has the right to sue for debts due to the estate so long as he continues to be administrator. No answer was filed and no default was taken. There was therefore no issue joined on the merits. The ease is remanded.
    APPEAL from the Sixteenth Judicial District Court, parish of Yer-milion. Mouton, J.

      F. JR. King, for plaintiff and appellant.

      Moa-ton & Debaillon, for defendant and appellee.
   LuDELixe, C. J.

The plaintiff sued the estate of D. O’Bryan for moneys received by him as administrator of the estate of Bernard McDermot and not accounted for.

The defendant filed an exception and asked for the dismissal of the suit on the grounds following, to wit: That it appears. from plaintiff’s petition that D. O’Bryan as administrator of the succession of B. Mc-Dermot has paid all the debts of the estate, and there are now no creditors, and that under this state of facts no one but the heirs, or the attorney of absent heirs, could sue for a debt due to the said succession. The court a qua erroneously maintained the exceptions and dismissed the suit. There is no dispute about the capacity of the plaintiff, and an administrator has the right to sue for debts due to the estate so long as he continues to be administrator. 14 An. 349; 27 An. 37.

No answer was filed and no default was taken in the case; there was therefore no issue joined on the merits.

It is therefore ordered that the judgment of the lower court bo annulled, and it is further ordered and adjudged that the exceptions bo overruled and the case bo remanded to bo tried on the merits.


author: Wyly, J.

text:
    No. 874.
    Oscar S. Lyons vs. Wm. C. Teal et al.
    to permit plaintiff to offer in his own bohalt his own books would be to permit him to manulacture his own evidence. His adversary might have required the books of plaintiff to be adduced, but he can not offer them himself; and because one book was received without objection is no reason that he should be permitted to introduce the other when objected to.
    The promise to pay the debt of another can only bo proved by written evidence, and this the plaintiff has failed to produce against defendant.
    APPEAL from the Eighth Judicial District Court, parish of Calcasieu. Morgan, J.

      Louis Léeeque, for plaintiff and appellant.

      George, II Wells, for defendants and appellees.
   Wyly, J.

Plaintiff appeals from the judgment dismissing as of non-suit his demand against defendants on two accounts, and dissolving the attachment sued out by him, reserving to defendants the right to sue for damages for the wrongful issuing of the attachment.

It seems plaintiff is engaged in the lumber business. Ho keeps a book called a log-book, and another book called a tally-book. He introduced in evidence without objection his log-book and subsequently offered to .introduce his tally-book, which was objected to and excluded. He took a bill of exceptions to the ruling of the court excluding this evidence; and in his brief complains that the judge erred.

¥e think the ruling was correct. To permit plaintiff to offer in his own behalf his own books would be to permit him to manufacture his' own evidence. His adversary might have required tlio books of plaintiff to be adduced; but he can not offer them himself. And because one book was received without objection is no reason that he should be permitted to introduce the other when objected to.

We think the judgment appealed from is correct. Plaintiff failed to establish the correctness of the account of six hundred and eleven dollars which, he has against defendant. He fails to adduce written evidence of the promise of defendant to pay the account which he holds against Wm. Dupriest. The promise to pay the debt of another can only be proved by written evidence. There was no cause for the attachment.

Judgment affirmed.


author: Ludeling, C. J.

text:
    No. 947.
    O. P. Alford vs. Manuel A. Montejo et al.
    The judge a quo correctly sustained the defendants’ exceptions, that the plaintiff has shown no cause of action, and that, if he has any right in the premises sold, ho must proceed by the hypothecary action against the property and not by rule against the purchaser,
    It appears that the plaintiffs mortgage is a judicial mortgage, and if the defendant’s mortgage was not superior in rank, the plaintiff’s remedy was to claim the proceeds by third opposition, or subseauently by the hypothecary action. It is only when there exist privileges or special mortgages which are preferred to the judgment creditor that the purchaser shall retain the portion of the price necessary to discharge said prior special mortgages or-privileges.
    APPEAL from the Third Judicial District Court, parish of St. Mary. Train, J.
    ' Fred. Gates, for plaintiff and appellant.
    D. Gafferrj., for defendants and appellees.
   Ludeling, C. J.

Manuel A. Montejo, a mortgage creditor of Hose, Allen & Co., obtained an order of seizure and sale against the property mortgaged, and at the sale he and L. E. Generes became the purchasers for the price of §11,360. The sheriff’s returns state, that Montejo retained enough, of the proceeds to satisfy his judgment and costs, and paid to T. D. Hiñe, a mortgage creditor, the sum of twenty-ñve hundred dollars out of the price; at least, this is stated to be a fact in the brief of the plaintiff and appellant. The returns are not in the transcript, which is very defective. It is further admitted, for the purposes of this trial, that “ the certificate of mortgages read on the day of sale and attached, to the writ of seizure and sale disclosed mortgages to a large amount, including those of the seizing creditor and Thomas D. Hine, of rank superior to that of the plaintiff, and that these exceed in amount the purchase price.” The plaintiff’s admission, it is stated, is not to imply that the mortgages existed in fact or were valid, but that they exist prima facie.

There is no evidence to rebut this prima fade.proof, and the plaintiff s demand would seem to be without foundation. But we think tho judge a quo correctly sustained the defendants’ exceptions, that the plaintiff has shown no cause of action, and that, if he has any right in the premises, he must proceed by the hypothecary action against the property, and not by rule against the purchaser.

It appears that the plaintiff’s mortgage is a judicial mortgage, and if the defendants’ mortgage was not superior in rank, the plaintiff’s remedy was to claim the proceeds by third opposition, or subsequently by the hypothecary action. C. P., article 679. It is only when there exist, privileges or special mortgages which are preferred to the judgment creditor that the purchaser shall retain the portion of the price necessary to discharge said prior special mortgages or privileges. C. P. 683.

It is therefore ordered that the judgment of the lower court be affirmed with costs of appeal.


author: Ludeling, C. J. Howell, J.,

text:
    No. 930.
    Mrs. G. L. Fuselier vs. Henry S. Buckner and Sheriff.
    One of the questions to bo decided in this case is, whether the homestead act of the twenty-second of December. 1865, confers upon married women the right to a homestead. The letter of the law is unambiguous, and this court is not permitted to disregard it under the pretext of divining the intention of the Legi s-lature. Besides, it is a law in derogation of common rights and must be interpreted strictly.
    The law does not confer this privilege of a homestead upon a married woman. During the marriage the husband is the head of the family, upon whom devolves the support of the family, and whether in exceptional cases the. wife may have to contribute to the support of the family or not, can not affect the interpretation of this statute.
    APPEAL from the Third Judicial District Court, parish of St. Mary. Train, J.

      A. O. Dumartrait, for plaintiff and appellant.

      Fred. Oates,, for defendant and appellee.
   Ludeling, C. J.

This is an injunction suit in which the plaintiff asserts a right to a homestead under the act of the twenty-second of December, 1865. She claims lots one, two, three, four, and five as shown by a plan on file and the dwelling-house and outbuildings, etc.

Her pretensions are opposed on the grounds following: That she is not the head of a family; and that she owns other property worth more than two thousand dollars.

The evidence shows that she is a married woman; that she owns other jtroperty in the parish besides that claimed under the homestead act, wor h more than two thousand dollars, but that it is mortgaged for large debts; and that the property claimed under the said exemption law exceeds in value two thousand dollars — the dwelling-house alone being proved to be worth at least four thousand dollars; and it is further proved that she has a granddaughter living with her whom she has undertaken to rear and ed;j®5#&, the mother consenting.

The question, first to be decided is, does the act aforesaid confer upon married icomen the right to a homestead ? The following is the law: “ In addition to the property and effects now exempt from seizure and sale under execution, one hundred and sixty acres of ground and the buildings and improvements thereon occupied as a' residence, and bona fide owned by the debtor, having a family or mother or father or person or persons dependent upon him for support; also one work-horse, one wagon or cart, one yoke of oxen, two cows and calves, twenty-five head of hogs or one thousand pounds of bacon or equivalent in pork, and," if a farmer, the necessary quantity of corn and fodder for the current year; provided, that the -property herein declared to be exempt from seizure and sale does not exceed in value two thousand dollars ; and in case of excess, any sale thereof under execution shall be taken from the lot of ground and building herein mentioned, and not from the other property herein mentioned as being exempt from seizure and sale; and provided, further, that no debtor shall be entitled to the exemption, whose wife shall own in her own right and be in the actual enjoyment of property worth more than one thousand dollars.”

The letter of the law is unambiguous, and we are not permitted to disregard it, under the pretext of divining the intention of the Legislature. Besides, it is a law in derogation of common right, and must be construed strictly. The law does not confer this privilege of a homestead upon a married woman. During the marriage the husband is the head of the family, upon whom devolves the support of the family, and whether, in ' exceptional cases, the wife may have to contribute to the support of the family, or not can not, affect the interpretation of this statute.

It is therefore ordered that the judgment of the lower court be affirmed with costs of appeal.

Howell, J.,

concurring in the decree. I concur in the conclusion in this case on grounds different from that given by the majority of the court, which I reserve the right to put on file.


author: Wylt, J.

text:
    No. 923.
    Edward Provost vs. H. B. Carlin.
    Plaintiff, having elected to sue on a contract which he failed to establish, can not recover on a auantummern.it. But as he served defendant in the capacity of an overseer, his right to demand the value of his services should be reserved to him.
    APPEAL from the Third District Court, parish of St. Mary. Train, J.

      B. L. Belden, for plaintiff and appellee.

      Allen & Foster, for defendant and appellant.
   Wylt, J.

Plaintiff sued defendant on a contract for twenty-seven hundred dollars for his services as overseer for twenty-seven months on the plantation of defendant.

The evidence fails to show a contract; j laintiff and defendant never came to an agreement as to the amount the former was to receive for his services. As plaintiff elected to sue on a contract he can not recover on a quantum meruit. As he served defendant, as overseer, his right to demand the value of his services should be reserved to him.

It is therefore ordered that the judgment herein in favor of plaintiff be annulled, and plaintiff’s demand be rejected with costs of both courts, reserving plaintiff’s right to sue for the value of his services hereafter.


author: Litdeling, C. J.

text:
    No. 948.
    H. S. Buckner vs. M. T. Gordy, Sheriff, et al.
    Por the purposes of the trial oh defendant’s exception, the allegations of Buckner, the plaintiff, must he taken as true. It would then appear that a fictitious claim was made, to defraud bona fide creditors of their mortgage rights upon the property seized. One having a real right upon property has the right to oppose the claims of all persons who assert rights against the property, which, if maintained, would defeat his claim. The judge a quo erred in maintaining the ex- ' ception and dismissing the suit.
    APPEAL from the Third Judicial District Court, parish of St. Mary. Train, J.

      Fred. Gates, for plaintiff and appellant.

      A. L. Tucker, Edward Simon, for defendants and appellees.
   Litdeling, C. J.

At the suit of Corinne Perret the undivided half of a plantation on the Bayou Teche was sold and Madame G. L. Fuselier bought it, paying a part in cash and giving her two notes of $3459 07 each, secured by special mortgage on the land sold. These notes Mrs. Perret transferred to Béraud & Gibert, of New Orleans. Mrs. Fuselier, having purchased the land in question, mortgaged it to H. S. Buckner. Béraud & Gibert obtained an order of seizure and sale, which was enjoined by Mrs. Fuselier on various grounds, among them that the notes did not belong to Béraud & Gibert, and that she had given them in error, and that they were without consideration. She had previously attached the notes in a suit she brought against Mrs. Perret for a debt she claimed the latter owed her. Subsequently, it appears that upon some arrangement among the parties, Mrs. Fuselier dismissed her attachment against Mrs. Perret and her injunction against Béraud & Gi-bert, and the land was sold under the writ of Béraud & Gibert. Buckner came in as third opponent, and obtained an order directing the sheriff to retain in his hands till further order of the court the proceeds of the sale of the undivided half-part of the lands described in his petition, sold at the suit of Béraud & Gibert in suit No. 6760. He prayed judgment in his favor, decreeing the proceeds to be paid to him, after payment of costs and taxes, in preference to Béraud & Gibert, the seizing creditors; that Béraud & Gibert be cited to answer; and that the notes and mortgages given to secure the payment of the notes made in favor of Oorinne Perret be declared null and void, without consideration, and of no effect against him.

To the proceeding of. Buckner, Béraud & Gibert excepted on several grounds, the principal one of which is that the opponent, Buckner, predicates his demand upon rights (if any exist, which they deny,) wholly personal to his debtor, Mrs. Maria E. L. Erére, upon which he can not stand in judgment and of which he can.not avail himself in these proceedings. They allege that bythe order obtained by the opponent, Buckner, retaining in the hands of the sheriff the funds of the defendants, amounting to more than eight thousand dollars, he embarrasses their business as commission merchants, and causes them great damage, and has caused them to incur heavy expenses for counsel fees and other necessary charges in defending this suit. They pray that the plaintiff’s action-be dismissed, and that they have judgment against him on their reeon-ventional demand for two thousand dollars damages and all costs of suit.

The exceptions were sustained and the plaintiff’s action dismissed at his costs. The question of damages claimed in the defendants’ recon-ventional demand was reserved for future action -against the plaintiff. Prom this judgment the plaintiff has appealed.

Eor the purposes of the trial on the exception the allegations of Buckner, the plaintiff, must be taken as true. It would then appear that a fictitious claim was made, to defraud bona, ficle creditors of their mortgage rights, upon the property. One having a real right upon property has the right to oppose the claims of all persons who assert rights against the property, which, if maintained, would defeat his claim.

It is therefore ordered and adjudged that the judgment of the lower court be annulled and that the exception be overruled, and that the case be remanded to the court a qua to be tried on the merits.

It is further ordered that appellees pay costs of this appeal.

Rehearing refused.


author: Lüdeling, C. J.

text:
    No. 952.
    M. Bonin vs. A. L. Monot, President Police Jury.
    Tlxe proceeding- in the district court was irregular and unauthorized, under article ten of the constitution of the State the plaintiff had the right to sue out an injunction in the parish court, and if the amount involved justified it, an appeal from that court to the district court might have been taken. But the district court had no right to prevent a suit in the parish court by injunction.
    APPEAL from the Third Judicial District Court, parish of Iberia. Train, J.

      B. 8. Perry, for plaintiff and appellant.

      W F. Bolminy, parish attorney, for defendant and appellee.
   Lüdeling, C. J.

It appears that in 1875 the plaintiff, a lessee of the Nelson. tract, was about closing a road which, had been used as a public road for many years. The police jury directed the parish attorney to enjoin the said Bonin from closing the road by running his fences across it. The injunction was issued by the parish court. Thereupon the said Bonin obtained an injunction from the district court arresting the process and writs of the parish court. The district court, on the trial of the cause, decided that the road was a public road, dissolved its injunction, and "commanded the sheriff to execute the injunction of the parish court. The proceeding in the district court was irregular and unauthorized.

Artiele ten of the constitution of this State declares that “ all courts shall be open, and every person, for injury done him in his lands, goods, person, or reputation shall have adequate remedy by duo process of law, and justice administered without denial or unreasonable delay.” Under this provision the parish of Iberia had the right to sue out the injunction 'in the parish court, and if the amount involved justified it, an appeal from that court to the district court might have been taken. But the district court had no right to prevent a suit in the parish court by inj unction.

It is therefore ordered that the judgment of the district court dissolving the injunction be affirmed with costs of appeal.

Rehearing refused.


author: Litdeling, O. J. MORGAN, J.,

text:
    No. 924.
    M. Gonsoulin vs. John I. Adams & Co.
    Tho right to dissolve a sale for the non-payment ol tho price is independent of tho mortgage or vendor’s privilege. It is conferred by the textual provisions of the Code, and this right may bo exercised against the assigns of the vendee, for they could acquire only such rights as he had, talcing the property cum onere.

    But the record shows that more than ten years had elapsed between tho date of the maturity of tho ilrst installment of the credit portion of the price and the institution of this suit. Obviously, when the buyer failed to pay the ilrst installment of the price, the seller might have exercised his right to dissolve the sale for the non-payment of the price, and prescription against that right began to run from tho moment when it might have been enforced. Therefore tho plea of prescription is fatal.
    APPEAL from the Third Judicial District Court, parish of Iberia. Train, J.

      M. S. Perry, for plaintiff and appellee.

      Fred. Gates, for defendants and appellants.
   Litdeling, O. J.

This is an action to dissolve a sale for the non-payment of the price, instituted against a third party who acquired a title at sheriff’s sale under execution against the plaintiff’s vendee, and also a petitory action. 1

The plaintiff, alleges that he is the owner of the property, which was retroceded to him by his vendee for the non-payment of the price, and attacks the sale by the sheriff to the defendant on the ground that the judgment debtor had not paid the price of the land and his title was de-feasible, and the purchaser at the sheriff’s sale acquired only such title as their debtor had.

The act of retrocession by Darden was made after the sheriff’s sale, and when he had no right or interest in the lands. We will, therefore, leave out of view this retransfer.

The right to dissolve a sale for the non-payment of the price is independent of the mortgage or vendor’s privilege. Swann vs. Gayer, 24 An. 502. It is conferred by the textual provisions of the Code: “If the buyer does not pay the price the seller may sue for the dissolution of the sale.” C. C. 2561; Marcadé, voL 6, p. 291. And this right may be exercised against the assigns of the vendee, for they could only acquire such rights as he had, taking the property cum onere. See 12 An. 778, 699; 23 An. 757.

The defendant has, however, interposed the plea of prescription of ten years in bar of this action. The record shows -that more than ten years had elapsed between the date of the maturity of the first installment of the credit portion of the price and the institution of this suit. But the plaintiff strenuously urges that prescription against this right did not begin to run till after the maturity of the last installment, and ten years had not elapsed from that period.

Obviously, when the buyer failed to pay the first installment of the price the seller might have exercised his right to dissolve the sale for the non-payment of the price, and prescription against that right began to run from the moment when it might have been enforced. See George vs. Knox et al., 23 An. 355.

It is therefore ordered that the judgment of the lower court be annulled, and that there be judgment in favor of the defendants rejecting the plaintiff’s demands with costs in both courts.

MORGAN, J.,

concurring in the decree. In January, 1861, plaintiff sold a certain piece of property to William J. Darden. To secure the payment of a portion of the price he reserved a mortgage and vendor’s privilege.

Darden subsequently mortgaged the property to John I. Adams & Co. Under tins mortgage the property was seized and offered for sale for cash. Not bringing two-thirds of its appraised value, it was re-advertised and sold on twelve-months bond. The defendants became the purchasers, and were put in possession.

Pending the proceedings under which the property was sold plaintiff filed a third opposition, in which he set up that the mortgage and vendor’s lien held by him had never been extinguished; that the debt which it was given to secure had never been discharged; that his rights on the property were superior to those of Adams & Co., and he prayed that the sheriff be ordered not to make any adjudication of the property except upon some lawful bid equaling or surpassing in amount the sum due to him, which he claimed to be paid to him by preference.

Upon this petition it was ordered:

First — That the third opposition be filed.

Second — That the sheriff be commanded to make no adjudication of the property seized unless some legal bid thereon amounting or surpassing the sum of twelve thousand dollars, with interest, shall have been made, and the sheriff was ordered to cause the payment in cash, on the day of sale, of the amount of his bid, which the sheriff was ordered to retain subject to the'further order of the court.

This opposition was filed when the property was advertised for sale for the second time. The date of the filing was the twentyisixth of February, 1873.

The sale took place on the sixth of April, 1873. Adams & Co. became the purchasers. No action was taken on the . third opposition until the twenty-sixth of September following, when, on motion of plaintiffs counsel, the proceeding was dismissed. The sheriff then made out a deed to Adams & Co., dating it on the day of sale.

On the twenty-eighth of October, 1873, Darden, by public act, retro-ceded the property in question to Gonsoulin. Gonsoulin brings this suit under Darden’s act of retrocession to annul the sheriff’s Sale. to Adams & Co., and claims that the title to the property is in him.

In my opinion, when the act of retrocession was passed Darden had no interest in the property in question to sell, to give, or to retrocede.

That Adams & Co. had the right to cause the property mortgaged to them to be sold, is, I think, unquestionable. That the sheriff could convey title is, I think, equally clear. Certainly, the prior mortgage had the right to be paid by preference. He had oven the right to insist upon the nullity of the sale if the property had not sold for a sufficient amount to pay his mortgage. But he does not claim the nullity of the sale on this ground. On the contrary, the proceedings which he took to secure his rights in that direction wore by him dismissed. He sets up no claim in his pleadings except under the act of retrocession. He distinctly avers that the sale by the sheriff is null because of the retrocession. It seems to me that he must be held to his pleadings and his judicial proceedings, and that he must stand upon the title which he sets up, viz.: the act of retrocession, and I think that when that act was passed Darden had nothing to retrocede. As he had nothing, ho could convey nothing, and his act to Gonsoulin was nothing.

I express no opinion as to the question of proscription, and concur in the decree for the foregoing reasons.

Rehearing refused.


author: Moegan, J.

text:
    No. 918.
    John Frank Knox vs. Ann Gurnett, Tutrix. Vincent Boagni et al. Intervenors.
    This suit ivas instituted in 1866. At that time the district court had jurisdiction. But the constitution of 1868 intervened, under that constitution the parish court alone has jurisdiction over such eases. The constitution is, of course, supreme, and ivhen it gives to parish courts exclusive jurisdiction over such of succession matters as relate to settlements of accounts, it necessarily deprives all other courts of the power of exercising jurisdiction. These cases, which had been instituted in the district courts before the constitution that changed the jurisdiction was adopted, should have been transferred to the court to which the jurisdiction had been given. The judge a quo erred in not maintaining the. plea to the jurisdiction.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. Joseph M. Moore, Acting Judge.

      John N. Ogclen, for plaintiff and- ap-pellee,

      Ilenry L. Garland, for intervenors and appellants.
   Moegan, J.

Plaintiff claims from his mother and tutrix three thousand dollars,'the amount of his share in his father’s estate of which the defendant has had charge. He asks, also, for a recognition of his minor’s mortgage.

The defendant filed an answer and her account, in which the amount, due the plaintiff is established at twenty-five hundred and sixty-nine-dollars.

Yincent Boagni intervened in the suit. He claims to be a creditor of' the defendant. He avers that the account filed by her is incorrect; he avers that in the account rendered by the defendant she has not included any debts due by the estate of plaintiff’s father, of which, he says, there existed a number. He prays that plaintiff’s demand be rejected, or reduced to such amount as may be established to be due.

Sarah M. Kaiser also intervened. She claims to be a judgment creditor of the defendant’. She says that plaintiff has no legal claim against, the defendant; that they are colluding to frustrate the intervenor in the steps which she has taken to enforce the payment of her judgment. She prays that plaintiff’s claim be rejected.

Marianne Bullard, wife of Alphonse Lastrapes, Julia A. Bullard, wife-of H. L. Garland, and Yirginia L. Bullard, all duly authorized, also intervene, and plead the prescription of four, five, and ten years to the plaintiff’s demand. In an amended answer they allege that the estate of the-plaintiff’s father consisted of slaves, with the exception of some land and movables, amounting- to one thousand dollars; that defendant is-, not bound to pay the price of the slaves, and that she can not by neglecting to plead this want of consideration give a preference to her son,, and make to him an illegal payment.

The same parties plead to the jurisdiction of the district court.

The first question to be decided is whether the district court had jurisdiction of the case.

. The suit was instituted in 1866. At that time, therefore, the district court had jurisdiction. But the constitution of 1868 intervened. Under that constitution the parish court alone has jurisdiction over such cases. Does the court which had jurisdiction of the case when it was brought, retain control of it, notwithstanding a constitution has been adopted which takes jurisdiction of that class of cases away from it, or invests another court with it? We think not. The constitution is, of course, supreme, and when it gives to parish courts exclusive jurisdiction over all such succession matters as relate to settlements of accounts, it necessarily deprives all other courts from exercising jurisdiction. 'These ■cases which had been instituted in the district court before the constitution which changed the jurisdiction was adopted, should have been transferred to the court to which the jurisdiction had been given. See Hoyle vs. New Orleans Railroad Company, 23 An. 502.

We think the plea to the jurisdiction of the district court'should have been maintained.

It is therefore ordered, adjudged, and decreed that the judgment of the district court bo avoided, annulled, and reversed, and that the case be remanded, with instructions to the district judge to transfer the case to the parish court.


text:
    No. 926.
    Succession of Pierre Cabrol.
    Labit, being appointed public administrator o£ the succession of Cabrol, caused, through judicial proceedings, the dativo testamentary executor o£ Cabrol to be removed, and was appointed in his placo in virtue of his office. Subsequent!y, Wise was appointed public administrator in lieu of Labit, and applied to be recognized administrator, vice Labit, in virtue of his office of public administrator, and the court granted his demand. There was no error on the part of the judge a quo. It was by virtue of his office of public administrator that Labit had the appointment of dative executor of the estate, and when he was removed from the office his successor was properly appointed dative executor of the succession.
    APPBAL from the Parish Court, parish of Vermilion. Kibbe, J.

      B. P. O’Bryan, for Solomon Wise, appellee.

      F. B. King, for Joseph T. Labit, appellant.
   Ludeling, C. J.

Hr 1870, J. T. Labit was appointed public administrator of the succession of Pierre Cabrol. Shortly afterward he instituted proceedings to remove Lastie Broussard, dative testamentary executor of P. Cabrol, from the office, and Broussard was removed and Labit was appointed in virtue of his office.

In 1875, Solomon Wise was appointed public administrator in lieu of J. T. Labit. On the sixth of July, Wise applied to the probate court of Yermilion parish to be recognized as administrator of this succession, rice Labit, in virtue of his office of public administrator. The court granted his demand, and from this order of the court the defunct public administrator appeals.

There is no error in the judgment of the lower court. It was by virtue of his office of public administrator that Labit held the appointment of dative executor of the estate, and when he was removed from the office his successor was properly appointed dative executor of the succession.

It is therefore ordered that the judgment appealed from be affirmed with costs of appeal.


text:
    No. 897.
    Succession of Adélaide Breaux. Opposition of Joseph Dupuis, Administrator.
    Tlic question whether a legacy of money under a particular title bears interest from the date ofthe probate of the will, or from the demand of the legatee, or filing of a tableau admitting the legacy, is answered by article 1626 of the Revised Code, which means what it says. The court a qua erred in allowing interest on the legacy from the probate of the will in 1867. It should run only from the filing of the tableau on the sixth of September, 1872.
    APPEAL from the Parish Court, parish of Lafayette. Moss, J.

      JS. JS. Mouton, for administrator and appellant.

      M. JS. Girard, for opponent and appellee.
   Wyly, J.

In this case the question is: Does a legacy of money under ft particular title bear interest from the day of the probate of the will, or from demand by the legatee, or the filing of a tableau admitting the legacy ? This question is answered by article 1626 of the Bevised Code, which means what it says.. The legacy vests in the legatee from the day of the testator’s death; “nevertheless, the particular legatee can take possession of the thing bequeathed, or claim the proceeds or interest thereof, only from the day the demand of delivery was formed, according to the order hereinbefore established, or from the day on which that delivery was voluntarily granted to him.” See, also, succession of Johnson, 24 An. 125.

If Oarmouehe, the executor of the will, neglected his duties as tutor of the legatee by particular title, he may have rendered himself liable for dereliction of duty to that legatee; but that consideration has no bearing on the question of law now presented for decision. The court therefore erred in allowing interest on this legacy from the probate of the will in 1857; it should run only from the filing of the tableau on sixth September, 1872.

The motion of appellee to dismiss the appeal for diminution of the record is disallowed, as it is not shown that the documents alleged to be wanting were offered in evidence; besides, for the trial of this question of law, which appellee says is the only question in the case, said documents are unnecessary.

It is therefore ordered that the judgment appealed from be amended by allowing interest at ñve per cent from sixth September, 1872, instead of from fourteenth of November, 1857, and as amended it be affirmed, appellee paying costs of appeal.


author: Morgan, J. Ludelihg, O. J.,

text:
    No. 956.
    The State of Louisiana vs. Alexander Williams.
    Defendant’s wife having been heard as witness for her husband in this ease, bofore the district attorney could object to her answering the questions propounded, the evidence was on motion of said district attorney ruled out on the ground that the wife could not testify for or against her husband.
    There was error in this ruling. The wife was not a competent witness for or against her husband, She could have been excluded from testifying. But the objection should have been made to her testifying at all. After testifying it was too late to have her testimony stricken out. If the fact be that the district attorney did not discover that the witness was the defendant’s wife until after she had testified, the fact should have been stated in the bill.
    APPEAL from the Ninth Judicial District Court, parish of Eapides. Orsborn, J, Criminal case.

      M 6V Hunter, District Attorney, for plaintiff and appellee.

      B. P. Hunter, for defendant and appellant.
   Morgan, J.

The defendant, convicted of an assault with intent to commit a rape, appeals from the judgment which sentenced him to imprisonment at hard labor for one year.

On the trial he offered as a witness his wife, to establish the fact that at the time the offense charged against him was committed, he was in Ms own house and bed, at some distance from the house where the person upon whom the assault was made resided. The witness, it would appear, had answered to question before the district attorney could object. The evidence was, on motion of the district attorney ruled out, on the ground that the wife could not testify for or against her husband. To this ruling of the court the defendant excepted. There was error in this ruling. The wife is not a competent witness for or against her husband. She could have been excluded from testifying. But the objection should have been made to her testifying at all. After testifying it was too late to have her testimony stricken out. Wo do not understand how “ the evidence went to the jury before the district attorney could object.” If the fact be that the district attorney did not discover that the witness was the defendant’s wife until after she had testified, the fact should have been stated in the bill. As it is, we see nothing except the fact that the witness testified, and that the evidence went to the jury-before the district attorney could object.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided and annulled, and that the case be remanded to be proceeded with according to law.

Ludelihg, O. J.,

dissenting. The evidence of the voife was properly .stricken from the record, on motion of the district attorney. There is nothing to show that the district attorney knew she was his wife till she .had testified.

I dissent from the opinion of the court.


author: Ludelihg, C. J.

text:
    No. 912.
    Darby & Tremoulet et al. vs. Widow Charles Lastrapes.
    'This suit is to collect the balance of an account rendered. The defense is a general denial and the prescription of three years. The accounts -were rendered and sent to the defendant when the supplies, etc., were furnished, regularly and in the usual way, and the account sued upon was sent by the regular vehicles of communication. The presumption is that they were received by the defendant. No evidence was introduced to rebut this presumption.
    A written acknowledgment is not necessary to constitute an account stated. An account rendered, unless objected to within a reasonable time, is an account closed, compte arrete, from its presumed approval. What is a reasonable time will depend upon the relations of the parties and the usual course of their business. An account closed, mi eompte arrete, is prescriptible only by the lapse of ten years, and the onus was on the defendant to show that any portion of it was not due, which has not been done.
    APPEAL from the Third Judicial District Court, parish of St. Martin. Train, J.

      L. J. Gary and A. G. Dumartrcdt, for plaintiffs and appellants.

      DeBlane & Perry, for defendant and appellee.
   Ludelihg, C. J.

This suit is to collect the balance of an account rendered by Darby & Tremoulet, commission merchants of defendant, for $1338 áá, which account was closed on the third of September, 1862. Citation was served in this case on the first of September, 1866. The Widow Lastrapes having died, her heirs were made parties, and they adopted her defense. The defense is a general denial and the prescription of three years.

The evidence shows that the accounts were rendered and sent to the defendant when the supplies, etc., were furnished, regularly and in the usual way, and that the account sued upon was sent by the regular vehicles of communication. The presumption is that they were received by the defendant, and no evidence was introduced to rebut this presumption. A written acknowledgment is not necessary to constitute an account stated. An account rendered, unless objected to within a reasonable time, is an account stated, compte arrété, from its presumed approval. What is a reasonable time will depend upon the relations of the parties and the usual course of their business. 4 An. 196; Freeman vs. Howell, 18 La. 517; 3 R. 362; 20 An. 116. We think the account sued upon is an account stated and prescriptible only by the lapse of ten years; and the onus was on the defendant to show that any portion of it was not due, which has not been done. The fact that some of the items are shown to have been for Mr. Alfred Lastrapes, a son of defendant, does not prove that they were not properly charged to her account.

It is therefore ordered that the judgment of the lower court be reversed, and that the plaintiffs recover judgment against the defendants jointly for the sum of $1338 44, with ñve per cent per annum from the third of September, 1862, with costs in both courts.


author: Howell, J.

text:
    No. 964.
    Vincent Boagni vs. C. C. Pickett.
    This is a suit oil a promissory note. The plea is payment. The evidence shows that the several payments oí interest wero at the rate oí twenty por cent, but that they wero, by agreement, imputed to the interest. Defendant contends he should have the full benefit of these payments as being in excess of the interest stipulated in the note. Neither usury nor prescription being pleaded by the parties respectively, the payments must bo considered as executed contracts, whether the defendant might have sued within a year of each payment to recover it back as usurious interest it is unnecessary to decido in this case.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. Hudspeth, J.

      Lewis & Bro. for plaintiff and appellee.

      A. Bailey, for defendant and appellant.
   Howell, J.

This is a suit on a promissory note made by defendant to-the order of plaintiff on the twenty-eighth of July, 1870, for $5880, due first of January, 1871, with eight per cent interest after maturity and secured by mortgage. Judgment is asked for the amount of the note,, less one hundred dollars paid on the fifteenth of February, 1876, with interest from first of January, 1875 (to which time it is admitted to be paid), five per cent attorney’s fees, and costs.

The plea is payment. Judgment was rendered as prayed for, and defendant appealed.

The evidence shows that the several payments of interest wero at the rate- of twenty per cent, but that they were, by agreement, imputed to the interest. The plea of usury is not specially made, but defendant contends he should have the full benefit of these payments as being in excess of the interest stipulated- in the note. All the evidence is in without objection, and, neither usury nor prescription being pleaded by the-parties respectively, we must consider the payments as executed contracts. And, it may be added, the payment of any thing but interest is not proved, which it was incumbent on defendant to do under the pleadings, the plaintiff having alleged that tho interest to a certain date had been paid, and the defendant having pleaded payment in', general terms. Whether the defendant might have sued within a year .'of each payment to recover it back as usurious interest it is unnecessary to' determine in this case. Damages for a frivolous appeal are asked for, but under the circumstances we think they should not be allowed.

Judgment affirmed.


text:
    No. 817.
    Succession of Antoine Romero. Opposition of Severin Romero to Tableau filed.
    It appears from the record that the opponent to tho tableau is an heir of the deceased whose estate is being administered, and therefore interested in defeating any debts placed on-the tableau not due, or prescribed. In his opposition he pleaded prescription against certain claims placed on tho tableau, which on their face appear to be proscribed. Tho administrator and the court seem to have regarded the opposition as a separate suit, in which the opponent was a plaintiff, and dismissed his opposition for not prosecuting it. This was an error. The opposition was on flic in tho nature of an answer, and if the record showed that any of the objections were valid, the court should have considered them. ’ '

    APPEAL from the Parish Court, parish of St. Mary. Handy, J.

      E. Simon, for Severin Bomero, opponent and appellant.

      DeBlanc & Perry, for the administrator and appellee.

      Jos. A. Breaux, for Z. Decuir, creditor and appellee.
   Ludeling, C. J.

Severin Bomero filed an opposition to the account and tableau of the administrator of the succession of Antoine Bomero. His opposition was dismissed, and the tableau was- homologated. He has appealed from this judgment, and he contends that tho judgment dismissing his opposition is only a judgment of nonsuit. We do not perceive what we have to do with that question in this appeal. If he has failed to maintain by proof his objections to the tableau, the judgment homologating the tableau was correct. It appears from the record, however, that he is an heir of the deceased whoso estate is being administered, and therefore interested in defeating any debts placed on the tableau not due, or prescribed. In his opposition he pleaded prescription against certain claims placed on the tableau which on their face appear to be prescribed. The- administrator and the court seem to have regarded the opposition, as a separate suit in which the opponent was a plaintiff, and dismissed his opposition for not prosecuting it. This was .an error. The opposition was on file in the nature of an answer, and if -the record showed that any of the objections were valid, the court should have considered them. We believe that, under the circumstances, the ends of justice will be subserved by remanding the cause to be tried de novo. We decided nothing in this case when it was before us in 1873, except that the case'would have to be continued to make proper parties. 25 An. 534.

. It is therefore ordered that the judgment of the lower court be reversed, and that this case be remanded to the court a qua to be proceeded in according to law. The costs of the appeal to be paid by the isuecession.

Rehearing refused.


text:
    No. 890.
    Arthur Simon vs. C. H. Walker and Sheriff.
    Plaintiff, not being the owner of any fixed or known number of acres oi the land seized, but simply an owner of five undivided twelfths thereof, is not entitled to a homestead. He is a part owner of every acre and fraction of every acre, just, as his brother is, and neither one can designate any particular acre or acres as belonging to him, and he can not therefore locate a homestead on his property.
    Resides, the defendant’s right of vendor’s lien and mortgage attaches to each and overy half of overy acre, and hence, under the terms of the homestead law, the plaintiff can not assert the right of homestead on one hundred and sixty acres, •overy one of said one hundred and-sixty'acres, as well as every other acre, being incumbered to the extent of one undivided half thereof at least, with the vend- or's lien.
    APPEAL from the Third Judicial District Court, parish of St. Mary. Train, J.

      A. L. Tucker and A. C. Dwnartrail, for plaintiff and appellant.

      D. Caffery, for defendants and appellees.
   Howell, J.

This is an action to secure a homestead. The material facts are: Plaintiff, at a judicial sale, purchased the Palo Alto plantation in St. Mary. Ho sold an undivided half thereof to defendant, Walker. Afterward ho sold two thirds of his undivided half to his brother. The two then purchased from Walker his undivided half, and to secure the price gave a mortgage, not only upon the undivided half «old, but on the other undivided half also. The price not being paid, Walker, the vendor, foreclosed his mortgage, whereupon this suit was instituted to obtain one hundred and sixty acres, embracing the residence, as a homestead. Edward Simon, the brother of plaintiff, intervened, alleging that he was part owner of the property so claimed as a homestead, and asked to bo so decreed, if judgment be in favor of plaintiff. Judgment was given in favor of defendant, and plaintiff appealed.

Plaintiff not being the owner of any fixed or known number of acres of the land, but simply an owner of five undivided twelfths thereof, is not entitled to a homestead. He is a part owner of every acre and fraction of every acre, just as his brother is, and neither one can designate any particular acre or acres as belonging to him, and he can not therefore locate a homestead on his property. And, besides, the defendant’s right of vendor’s lien and mortgage attaches to each and every half of every acre, and hence, under the terms of the homestead law, the plaintiff can not assert the right of homestead on one hundred and sixty acres, every one of said one hundred and sixty acres, as well as every other acre, being incumbered to the extent of one undivided half thereof at least with the vendor’s lien.

We think it very clear the plaintiff is not entitled to the homestead.

Judgment affirmed.


author: Taliaferro, J. Mobg-an, J.,

text:
    No. 894.
    Ethan Allen vs. Elizabeth McWaters, Wife, et al.
    The mortgage debt, the payment of which was extended from 1861 to the first of March, 1862, became exigible at that epoch. The conditions of that extension were the payment of certain interest and of all lawyer’s fees and other necessary expenses that might accrue in the event of the plaintiff’s having to resort to compulsory means to enforce payment of his mortgago debt. Payment not being made in March. 1862, the plaintiff could have proceeded on his mortgago note and also upon his claim of six hundred dollars paid by him for attorney’s fqes and costs. Prescription therefore began’ to run upon the six-hundred-dollar claim from the first of March, 1862. The plaintiff instituted this suit on this claim in May, 1872 — more than ten years having intervened between the time when ho might have brought this action and the date at which ho did bring it. The demand is barred.
    APPEAL from the Third Judicial District Court, parish of St. Mary. Train, J.

      Fred. Gates, for plaiatiff and appellant.

      James MbClarty and Bobert 8. Perry, for defendants and appellees.
   Taliaferro, J.

The defendant being indebted to the plaintiff in a large sum, for which the latter held her promissory note, secured by mortgage, and due early in 1861, agreed with the plaintiff, in consideration of his extending the time of payment to March, 1862, to pay the interest due for the year 1860 and the interest in advance for 1861, and, moreover, to pay all expenses of lawyer’s fees and other necessary expenses that might accrue in the event of the plaintiff having to resort to compulsory means to enforce payment of his mortgage debt. In 1867 the plaintiff instituted suit on the defendant’s note, and contracted with his attorney to give him a fee of six hundred dollars, and for which/ihe gave his note to the attorney on the thirtieth of May, 1867. Tne ngreement entered into between the plaintiff and defendant in regard to the extension of time, etc., was in writing, and dated February 21,1861.

In March, 1870, it appears that the plaintiff paid his note of six hundred dollars given to the attorney for professional services rendered in the proceedings taken against the. defendant by the plaintiff, and in May, 1872, he instituted this suit against the defendant to recover the six hundred dollars he had so paid, in conformity with the agreement of the twenty-first of February, 1861.

The defendant, in bar of the plaintiff’s claim, pleaded the prescription of three, five, and ten years. The plea was sustained by the lower court, and judgment rendered dismissing the plaintiff’s demand. The plaintiff has appealed.

The mortgage debt, the payment of which was extended to March, 1862, was then exigible. Payment not being made, the plaintiff could have proceeded on his mortgage note and also upon his claim of six hundred dollars paid by him for attorney’s fees and costs. Prescription, therefore, began to run upon this six-hundred-dollar claim from the first of March, 1862. The plaintiff instituted suit on this claim in May, 1872, more than ten years having intervened between the time when he might have brought this action and the date at which he did bring it. The demand was, therefore, barred by the proscription of ten years.

It is therefore ordered that the judgment of the lower court be affirmed with costs.

Mobg-an, J.,

dissenting. I think the judgment of the district court should be reversed. The defendant had a right to contract that, in case counsel should be employed to enforce the payment of a note due by him, he would pay the counsel so employed. This contract he made. He did not pay his note. Counsel was employed to enforce payment, and plaintiff contracted to pay counsel six hundred dollars for his services, for which plaintiff gave him his note. The note was paid.

It is possible that plaintiff might have included this amount in the demand which he made when the suit was brought. But I think he could have made the demand then, or by a separate action and at a different time. His rights were not destroyed simply because he did not assert them at a particular time or in a particular form.

The defendant’s contract was to pay in case the plaintiff paid. The plaintiff did pay, and for the amount paid I think the defendant is liable.

As to the prescription, upon which the case turns here, I do not think it applies. The fee was paid in a note. When the note was paid the plaintiff’s right accrued, and not before. This suit was brought within this proper time.

I therefore dissent.


author: Taliaferro, J.

text:
    No. 953.
    Succession of Maria Bowman. Contestation for Administration of the Same between the Public Administrator of the Parish of Iberia and John Fisher, Testamentary Executor.
    Tho question at issue is. which oí the parlies contending, the executor named in the will of Mrs. Bowman, or the public administrator of the parish, has the right to administer the estate of the deceased. The court below ordered that Fisher should account for the funds he has received to date and satisfy tho court that tho same had not been illegally used; that he be given thirty days from date to comply with this order; and that in the mean time the application of the public administrator remain in abeyance. This judgment is erroneous.
    The confirmation of Fisher as executor by the parish court of St. Martin, being null and void; does not preclude him from applying for confirmation and for probate of the will before the court having jurisdiction. Hois entitled to the office of executor, in preference to the public administrator. It will be in time to inquire into his liabilities to the estate as executor after he assumes the duties and responsibilities of tho office.
    APPEAL from the Parish Court, parish of Iberia. Fontelieu, J.

      J. A. Breaux, for administrator and appellee.

      U. 8. Haqse and B. S. Perry, for opponents and appellants.
   Taliaferro, J.

Maria Bowman, formerly a resident of the parish of St. Martin, but at the 'time of her decease a resident of the State of Mississippi, named in her will John Eisher, one of her sons, as her executor. She left property in the parish of St. Martin. In 1870 Eisher presented a copy of the will to the probate court of the parish of St. Martin for probate. The usual order was rendered, and John Eisher was qualified as executor. This was all done after the creation and establishment of the parish of Iberia in 1868.

The property of the succession of Mrs. Bowman consisted, as it appears, entirely of houses and lots in the town of New Iberia, which, before the establishment of the new parish, was in the parish of St. Martin, but afterward was included in the parish of Iberia. There seems to have been dissatisfaction among some of the heirs of Mrs. Bowman in regard to the course pursued by Eisher acting under his appointment to the executorship. It is admitted that he did not make an inventory of the succession, or commence one within ten days; that he has collected rents and has rendered no account.

In March,T876, the public administrator of the parish of Iberia, at tho instance of several of rhe heirs, applied for the administration of Mrs. Bowman’s estate, alleging that the same has never been legally opened in Louisiana; that it can only be legally administered under the authority of the parish court of Iberia, which alone has jurisdiction over it; that Eisher, the person named in the will to be executor of the estate, has failed to qualify, and complied with none of the legal formalities required to be observed by executors; that Eisher, without-legal authority, has collected amounts on account of the estate and has failed to render any account of them. He prays to be appointed administrator of the succession and authorized to settle its affairs.

An order, it appears, was rendered recognizing the public administrator as executor of the estate, and a subsequent order was made directing the making of an inventory, which was done.

Subsequently, Pisher filed his opposition to the proceedings of the public administrator, denying the existence of any contingency requiring or authorizing the appointment of the public administrator to administer the succession; that, through error, he was recognized and confirmed by the parish court of the parish of St. Martin on the twenty-fourth of March, 1870, said court not having jurisdiction, to which error his attention was called only since the pendency of the application of the public administrator, and he alleges there is no cause why he should not be appointed and qualified by the parish court of Iberia, and why he can not discharge the duties of said trust. He prays that the application of the public administrator be rejected, and that he be appointed executor without bond, and that letters testamentary be granted to him according to law.

The court, after hearing the parties and receiving evidence, ordered that John Pisher account for the funds he has received to date and satisfy the court that the same have not been illegally used; that he be given thirty days from date to comply with this order, and that in the mean time the application of the public administrator remain in abeyance. The opponent, Pisher, appealed.

"We think the judgment erroneous. The question at issue seems to be which of the parties contending for the administration of Madame Bowman’s succession, the executor named in her will, or the public administrator, is entitled to it ? The confirmation of Pisher as executor by the parish court of St. Martin, being null and void, does not preclude him from applying for confirmation and for probate of the will before the court having jurisdiction. "We think him entitled to the office of executor, in preference to the public administrator. It will be in time to inquire into his liabilities to the estate as executor after he assumes the duties and responsibilities of the office.

It is therefore ordered that the judgment appealed from-be annulled, and, proceeding to render such decree as should have been rendered by the lower court, it is ordered that the opponent, John Pisher, be confirmed as executor of the estate of his mother, Maria Bowman, deceased, upon his taking the oath and complying with the law in such cases prescribed; that this case be remanded to the court a qua to be further proceeded with according to law, the public administrator, the other contestant, paying costs in both courts.


author: Ludeling, C. J. Wyly, J., Howell, J.,

text:
    No. 935.
    Mrs. Hortense Dupérier vs. Police Jury of the Parish of Iberia.
    The plaintiff sues the parish of Iberia to recover twenty-four hundred dollars for the lease, at the rate of six hundred dollars per annum, of a building to be used as a court-house and offices, and occupied for said use during four years. The defense is that the agreement was to pay in warrants, and not in currency; that parish warrants are worth fifty cents on the dollar; and that a tax to pay the judgment rendered in this case can not be lawfully levied, as it would be 'in excess of fourteen and a half mills, which is the limit of taxation fixed by law.
    If the parish had had the right to issue warrants (but it had not) then these warrants would have to be paid with currency. .The parish could not discharge its obligation on the warrants by paying fifty per cent of their face.
    There is no force in the objection that a tax to pay the judgment rendered against the parish can not be levied. The law (act of 1869) makes it the imperative duty of courts to order the levy and collection of a tax whenever it is necessary to pay a judgment.
    APPEAL from the Third Judicial District Court, parish of Iberia. Train, J.

      Joseph A. Breaux, for plaintiff and appellant.

      William B. Schwmg, Parish Attorney, for defendant and appellee.
   Ludeling, C. J.

This is a suit to recover from the parish of Iberia twenty-four hundred dollars for the lease of a building for a court-house and offices, occupied for the use of the parish during four years.

The defense is that the plaintiff agreed to lease the building to the parish for six hundred , dollars in parish warrants, payable quarterly, and that parish warrants are worth fifty cents on the dollar; and that a tax to pay the judgment rendered in this case can not lawfully be levied, as it would be in excess of fourteen and a half mills, -the limit of taxation fixed by law.

The written agreement in the record shows that the lease was for six hundred dollars per annum. But if it had been, as contended for by defendant, payable quarterly in warrants, the only difference possible would have been that the payments were due quarterly. As it is, the defendant has had a much longer credit. And if the parish had had the right to issue warrants (but it had not) they would have to be paid with currency. The parish could not discharge its ■ obligation on the warrants by paying fifty per cent of their face.

There is no force in the objection that a tax to pay the judgment rendered against the parish can not be levied because fourteen and a half mills had already been levied by the parish for general expenses. The law makes it the imperative duty of courts to order the levy and collection of a tax whenever it is necessary to satisfy the said judgment. The act of 1869 declares; “Hereafter, whenever a .judgment for money is rendered by any court of competent jurisdiction against a parish, the judge who shall render the judgment shall, in the saíne decree, order the board of assessors or parish officers whose duty it is to assess taxes forthwith to assess a parish tax at a sufficient rate per cent upon the assessment roll of the current year to pay and satisfy said judgment and interests and costs.” R. S., section 2747.

It is therefore ordered that the judgment-be amended by increasing the amount of the judgment to twenty-four hundred dollars, with five per cent per annum interest from judicial demand, and that the tax to be assessed be increased to a sum sufficient to cover the amount of this judgment and costs of both courts, and as thus amended that the judgment of the lower court be affirmed with costs of appeal. •

Wyly, J.,

dissenting. Plaintiff sues defendant for twenty-four hundred dollars on a contract of lease made in 1872 for the rent of a building to be used as a court-house, alleging that the price of the lease was six hundred dollars per annum, payable as follows: one hundred and fifty dollars at the end of each quarter.

The defense is, the contract is illegal, because made in contravention of a prohibitory law.

Section 2786 of the Revised Statutes provides that ‘‘the police juries of the several parishes * * * shall not hereafter have power to contract any debt or pecuniary liability without fully providing in the ordinance creating the debt the means of paying the principal and interest of the debt so contracted.”

Section 2787 provides that the ordinance providing means to pay the debt so contracted shall remain in force, that is, shall not be repealed until the debt and interest are fully paid.

The police jury, in contracting the debt in question, provided no means whatever to pay the principal and interest of said debt. They made the contract of lease with defendant, obligating the parish to pay a specific sum of money in certain installments, without providing in the ordinance creating the debt “ the means of paying the principal and interest of the debt so contracted,” in contravention of a positive law forbidding them from so doing.

The contract in question undoubtedly created a debt, and in the ordinance authorizing the debt no means were provided for the payment of the same. It is a simple question of authority, and the rule is, all persons dealing with a political corporation are charged with notice of the extent of its powers.

The General Assembly, who created the parishes, thought proper to limit their powers to create debts; they have forbidden contracts of the kind declared on, and the court must uphold the law, however great the hardship to those who have dealt with the police jury in ignorance of the law limiting their powers. The .precise question was presented in the case of O. J. Flagg vs. the Parish of St. Charles, 27 An. 319, and 'in numerous other cases. The jurisprudence is settled long since on this point.

I therefore dissent in this case.

Howell, J.,

dissenting. 1 concur in the dissenting opinion of Mr. Justice Wyly.


text:
    No. 911.
    Andrew C. Smith vs. Anna A. Palfrey, Administratrix.
    The note sued on matured on the first of March, I860. The proceedings of the meeting of creditors, of whom plaintiff was one, were homologated on the eleventh of June, 1861, and this suit was brought on the eighteenth of October, 1873.
    whether the list of creditors filed is regarded as an acknowledgment of the debt, or the homologation of the proceedings of the creditors as a judgment on the debt (which, however, this court does not), the plaintiff’s claim would be proscribed, as more than ten years have elapsed between the date of the judgment of homol-ogation and the day on which the suit was instituted.
    Prescription against a judgment can not be interrupted except by a suit to revive. In 1870 the prescription in this ease had run since the date of the filing of the list of creditors, and an'administrator cannot create a debt by acknowledging a prescribed claim.
    Prescription runs against all persons unless they are included in some exception established by law, and there is no exception in favor of creditors of a sueces - sion, whether solvent or not.
    APPEAL from the Third Judicial District Court, parish of St. Mary. Train, J.

      Fred. Oates, for plaintiff and appellee.

      Lyman Harding, for defendant and appellant.
   Ludeling, C. J.

This is a suit to recover the amount of a promissory note executed .by William T. Palfrey, Jr., deceased. The plaintiff obtained an attachment by garnishment process against G. A. Callery. The answer is a general denial and the plea of prescription of five and ten years.

There was judgment dissolving the attachment and in favor of the plaintiff for the amount of the note with interest and costs. The defendant has appealed.

It appears that William T. Palfrey, Jr., died in 1860, and the defendant was appointed administratrix. In 1860, treating the succession as an insolvent succession, the administratrix convoked a meeting of the creditors, and, accompanying her petition, she filed a list of creditors to be summoned; on that list is found the name of the plaintiff. The meeting was held, the plaintiff participated in its proceedings and made oath to the correctness of his claim, and the proceedings of the meeting were homologated.

The plaintiff urges that when defendant filed her schedule and caused him to be summoned as a creditor she thereby acknowledged him as a creditor, and that acknowledgment was a standing recognition of the debt, and suspended prescription as long as the estate remained unsettled. We can not assent to these propositions. The list of creditors only indicated who claimed to be creditors, and did not even state the amount or the nature of the debts. Nor was this list signed by the administra-trix, or by any one proved to have been authorized by her to acknowledge the debts • of the succession. This was not such an acknowledgment of the debt as would interrupt prescription. But if it had been, the acknowledgment could not benefit the plaintiff.

The note sued on matured March 1, 1860; the proceedings of the meeting of the creditors was homologated on the eleventh of June, 1861, and this suit was filed on the eighteenth of October, 1873. Whether we regard the list of creditors filed as an acknowledgment of the debt, or the homologation of the proceedings of the creditors as a judgment on the debt (which, however, we do not), the plaintiff’s claim would be prescribed, as more than ten years elapsed between the date of the judgment of homologation and the day on which the suit was instituted. 22 An. 677; 4 An. 102.

An attempt has been made to prove an interruption of the prescription in the year 1870 or 1871. If the evidence amounted to proof of an interruption of prescription by an acknowledgment, it could not benefit the plaintiff, as prescription against a judgment can not be interrupted except by a suit to revive, and in 1870 the prescription had run since the date of the filing of the list of creditors, and an administrator can not create a debt by acknowledging a prescribed claim: It is strenuously contended by plaintiff that an insolvent succession is in the same situation with a corporation, partnership, or individual who has mado a surrender of his property to his creditors, and that, pending the settlement of the succession, prescription against the debts of the estate is suspended. But he has not cited us to any law or authority to support this position. The case in 7 An. 116, of the Gaslight and Banking Company vs. Hayes, is not ha point.

Prescription runs against all persons unless they are included in some exception established by law (C. C. 3651), and there is no exception hi favor of creditors of successions, whether solvent or not. 12 Rob. 507; 12 An. 216; 21 An. 67.

It is therefore ordered that the judgment of the lower court bo reversed, and that the plea of prescription be maintained, and the plaintiff’s demand be rejected with costs of both courts.


text:
    No. 899.
    A. L. Tucker vs. Clementine M. Charpentier and Husband.
    The defendants gave plaintiff a draft drawn by a planting partnership on the house of Allen & Co. in settlement of a promissory note which he held and which had been executed by defendants. The receipt reads that the draft, when paid, shall destroy the note. The draft not being paid, the receipt amounted to nothing and loft the note due and unpaid.
    APPEAL from the Third Judicial District Court, parish of St. Mary. Train, J.

      A. L. Tucker, in propria, persona, plaintiff and appellee.

      S. Lanaux, for defendants and appellants.
   Moegan, J.

Defendants were indebted to the plaintiff for the amount of a promissory note which he held, the note being executed by the defendants. The defendants gave him a draft drawn by a planting partnership on the house of T. H. & J. M. Allen & Oo. in settlement of his claim. The draft was not paid. He brings this suit to recover the amount of the note.

The defense is that the draft was given and received in payment of the note, and therefore that the note was extinguished.

The receipt reads that the draft “ when paid” should destroy the note.The draft not being paid, the receipt amounted to nothing, and left the note due and unpaid.

There is no error in the judgment which compelled its payment.

Judgment affirmed.


text:
    No. 971.
    C. T. Cade vs. F. C. Malain.
    The defense is that plaintiff failed to put defendant in possession of a material portion of said land for which the notos sued upon were given, and that without that part the purchase would not have been made, and the prayer is that the sale be canceled or the price reduced in proportion, which is fixed in the answer at one half of the whole price. Judgment was rendered on the verdict of a jury for the amount claimed, less the value of the land of which defendant failed to get possession. Defendant has appealed.
    The verdict and judgment are correct. The defendant made an alternative prayer, and the jury found that the price should be reduced. Tlio amount fixed seems just and shown by legal evidence.
    APPEAL from the Third Judicial District Court, parish of Iberia. Train, J. Jury trial.

      J. A, Breaux, for plaintiff and appellee.

      Be Blanc & Fournet and A. & M. Voorhies, for defendant and appellant.
   Howell, J.

Plaintiff sues upon four notes secured by mortgage and given for the price of certain lands sold by him to the defendant. The defense is that plaintiff failed to put defendant in possession of a material portion of said land, and that without that part the purchase would not have been made, and the prayer is that the sale be canceled, or the price reduced in proportion, which is fixed in the answer at one half of the whole price.

The facts are that, in 1870, Mrs. Cade rented a tract of land of ninety-seven 35-100 acres to the defendant for ten years, describing it as a part of a tract entered by Robert Cade on the fourteenth of January, 1857. Subsequently, the plaintiff purchased from his mother, Mrs. Cade, all the land entered by Robert Cade, and leased the whole of it for six years to .the defendant, giving a description of each part, including the portion said in the answer not to have been delivered. About a year thereafter, a sale of the same land, containing 643 9-100 acres, with the same description and the usual clauses as to warranty, was made by the lessor, C. T. Cade, to the lessee, E. C. Malain, the latter giving his four promissory notes, duo respectively in about one, two, three, and four years. "When the first note became duo, defendant refused to pay on the ground set up in his answer. Judgment -was rendered on a verdict of a jury for the amount claimed, less the value of the land of which defendant failed to get possession, and he appealed. Plaintiff asks an amendment for the whole amount claimed.

We think the verdict and judgment were correct. The defendant made an alternative prayer, and the jury found that the price should be reduced, and wo think the amount fixed' by them just and shown by legal evidence. It is unnecessary to pass on the alleged errors in the charge to the jury. Defendant had a right to prove by parol the non-delivery.

Judgment affirmed.

Rehearing refused.


author: Morgan, J.

text:
    No. 885.
    L. C. Lodds, Testamentary Executrix, vs. Parish of Vermilion.
    'This ease seems identical with the one oí Sterling vs. Parish oí west ITcliciana, 20 An. p. 59, and should be controlled by it.
    APPEAL from the Sixteenth Judicial District Court, parish of Yer-rnilion. Mouton, J.

      C. H. Mouton & Debaillon, for plaintiff and ap-pellee.

      JR. P. O’Bryan, for defendant and appellant.
   Morgan, J.

Tile allegations are that plaintiff, as testamentary executrix, is holder of certain -warrants issued by the police jury of the parish ■of Yermilion, payment of which is refused by the treasurer thereof, who alleges that he has no funds in his hands, although, as she avers, the police jury had levied taxes and caused the same to bo collected to meet the payment of the warrants sued on. She prays that judgment be rendered in her favor for the amount claimed, and that a tax be levied on the taxable property of the parish, according to law, the proceeds to be applied to the payment of the judgment which she asks for.

The defense is that the police jury is without right to issue instruments negotiable in form; that the formalities of law have not been complied with, no provision having been made to meet their payment in the ordinance creating the debt; that no cash taxes have ever been levied by the police jury, nor have any ever been collected to meet the payment of the warrants; that the parish treasurer has been without money to meet the payment of any warrants drawn upon the general fund for seven years past.

The case seems identical with the one of Sterling vs. Parish of West Feliciana, 26 An. 59, and should be controlled by it.

It is therefore ordéred, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that there be judgment in favor of the defendants with costs in both courts.


text:
    No. 962.
    H. S. Buckner vs. M. T. Gordy, Sheriff. Rule to show Cause in the Matter.
    'This is a rule taken by Buckner on the sheriff of St. Mary to show cause why he should not pay to the plaintiff in the rule a certain sum which is the proceeds of the sale of one undivided half of certain mortgaged property, after paying its proportion of the costs and taxes and the whole debt duo the first-mortgage creditor.
    'The sheriff had no right to make this disposition of, the surplus in his hands. The debtor, at least, should have been made a party to the rule, if a rule were authorized in this case. This is made more manifest by the motion of the plaintiff to dismiss the appeal on the ground that the sheriff, being a mere stakeholder, had no right to appeal, and yet he alone is a party defendant in these: proceedings. The case is remanded.
    APPEAL from the Third Judicial District Court, parish of St. Mary. Train, J.

      Fred. Gates, for plaintiff and appellee.

      A. C. Dumartrait, for defendant and appellant.
   Ludeling, C. J.

This appeal is from a judgment rendered on a rule against the sheriff to show- cause why he should not pay to the plaintiff • $2809 56 out of the proceeds of the sale of the “Old Fuselier” plantation. The plaintiff alleges that he is a mortgage creditor of Mrs. G. L. Fuselier for the sum of twelve thousand dollars, and that after paying ■G. L. Grevemberg’s debt there remained a surplus out of the half of the net proceeds of the sale amounting to the sum he claims. It appears that the said plantation was seized and sold under two writs, the two undivided halves of the place being mortgaged to different parties, and ■each creditor was forcing a sale under his mortgage. Buckner claimed to have a mortgage -upon the whole tract inferior in rank to the two mortgages above mentioned. The place sold for $14,774 50, $11,804 50 cash and $2970 in a twelve-months bond ; leaving, after deducting taxes and costs, $12,920 16, or $9950 16 in cash. The plaintiff contends that the $12,920 16, net proceeds of the whole tract, should be divided equally, and the mortgages which outranked Ms should be respectively deducted from -the two halves, and that that would leave for the satisfaction of his mortgage the amount claimed. Conceding all this to be true, the sheriff had no right to make this disposition of the surplus in his hands. The debtor, at least, should have been made a party to the rule, if a rule were authorized in this case. This is made more manifest by the motion of the plaintiff to dismiss the appeal on the ground that the sheriff, being a mere stakeholder, had no right to appeal-, and yet he alone is a party defendant in these proceedings.

It is therefore ordered that the judgment of the lower court be reversed, and that the ease be remanded to the court a qua to make proper parties according to law. Appellee to pay costs of appeal.


text:
    No. 902.
    A. C. Dumartrait, Use of, etc., vs. William P. Kemper.
    I£ plaintiff acquired the notes sued upon in pledge for his clients, the creditors of Penn, to whose order they were drawn and by whom they were indorsed, he did so with the full knowledge of the defective title which defendant the drawer of the notes, received to the land, in consideration of which the notes were given; and his knowledge was the knowledge of his clients. Failuro of consideration, which is pleaded, is clearly shown.
    There is no demand in reeonvention in the pleadings, although urged in counsel’s brief, for the cash part of the -price of the land paid by defendant to Penn. Besides, Penn has not been cited.- If the plaintiff has authority from Penn to sue on the notes, that does not give him authority to represent Penn in the demand to recover the cash part of the price of the land which was paid to Penn at the time of the sale.
    APPEAL from tbe Third Judicial District Court, parish of St. Mary. Train, J.

      A. O. Bumartrait, for plaintiff and appellee.

      A. L. Tucker and T). Cajfery, for defendant and appellant
   Wyly, J.

Plaintiff, for the use of Henry Penn and his creditors, sued the defendant on certain promissory notes, amounting in the aggregate to ninety-ñve hundred dollars, executed by defendant to the order of Henry Penn and indorsed by him.

The defense is failure of consideration caused by eviction of defendant of the principal part of the tract of land for the purchase price of which these notes were given.

The plaintiff is not a third holder before due for value. He holds these notes as agent ior Henry Penn, the payee, with the understanding that when collected a part of .the proceeds is to be applied to the payment of certain creditors whose claims are in his hands as attorney at law, and the balance of the proceeds is to be paid to Penh.

Besides, if plaintiff acquired these notes in pledge for the creditors of Penn, his clients, he did so with full knowledge of the defective title which defendant received to the land, in consideration of which the notes were given; and his knowledge was the knowledge of his clients.

Failure of consideration is clearly shown. There is no demand in re-convention in the pleadings, although urged in the brief, for the cash part of the price of the land paid by defendant to Penn. Besides, Penn has not been cited. If plaintiff has authority from Penn to sue on the notes, that does not give him authority to represent him in the demand to recover the cash part of the price of the land which he paid to Penn at the time of the sale.

It is therefore ordered that the judgment in favor of plaintiff be annulled, and that plaintiff’s demand be rejected with costs of both courts.


author: Taliaeerro, J.

text:
    No. 920.
    Robert H. Littell, Testamentary Executor, vs. Evrard W. Sylvestre.
    'The judgment appealed from is correct. The plaintiff had no personal judgment against the defendant. His judgment hore only on the land in possession of said defendant, and decreed him to give it up to bo sold to pay the amount for which it was mortgaged. Defendant made an arrangement by which he gave a draft to plaintiff in part payment, and obtained time for the satisfaction of the. balance of the judgment. The draft was protested. Plaintiff, failing to collect the draft, proceeded to execute his judgment. Pie seized and sold the land, and holding the writ of fieri facias unsatisfied, proceeded to sue defendant for the amount of the draft without giving him credit for it or any part of it. This he clearly had no right to do.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. Morgan, J.

      J. M. Moore, for plaintiff and appellant.

      Martel & Hudspeth, for defendant and appellee.
   Taliaeerro, J.

The defendant was proceeded against by the hypothe-cary action as third possessor of mortgaged property. It seems he made an arrangement with the plaintiff to pay fifty-five hundred dollars of mortgage debt on the twenty-fourth of September, 1874, for which he gave a draft on John W. Jones, of the State of Maine, in favor of the executor. The agreement appears to have been that the amount of the draft when paid should be credited on the judgment held by the ■executor against the property, and further time given the defendant to pay the remainder. The draft was protested for non-payment, and the plaintiff proceeded to the sale of the mortgaged premises, which were adjudicated to the highest bidder for $3333 33, falling far short of the amount due on the mortgage debt. The plaintiff, without giving credit to the defendant for the amount of the draft, instituted suit against him on the draft, with interests and costs. Sylvestre, the defendant, resisted the payment of the draft—

First — On the ground of want and failure of consideration.

Second — That he was discharged by the laches of the payees of the draft, and the indorsers holding under them, in failing to made due demand for acceptance and payment, and by their failing to give him due notice of non-acceptance and non-payment and of the protest.

There was judgment in the lower court in favor of the defendant, and the plaintiff appealed.

We think the judgment appealed from correct. The plaintiff had no. personal judgment against Sylvestre. His judgment bore only on the land in possession of Sylvestre, and decreed him to give it up to be sold to pay the amount for which it was mortgaged. The plaintiff, when he failed to collect the draft, proceeded to execute his judgment. He seized and sold the land, and holding the writ of fieri facias unsatisfied, proceeded to sue Sylvestre for the amount of the draft without giving him credit for. it or any part of it. This he clearly had no right to do.

Judgment affirmed.


text:
    No. 913.
    Charles Camille Durand, Administrator, vs. E. Delahoussaye, Sheriff, et al.
    A creditor holding a claim securod by special mortgage on property belonging to a vacant and apparently insolvent estate, can proceed via ex.ec.uUva, against said property in satislaction of bis debt. This Question has long been settled by numerous decisions. It is no longer an open Question.
    APPEAL from the Third Judicial District Court, parish of St. Martin. Train, J.

      Felix 35 Martin Voorhies, for plaintiff and appellee.

      L. J. Gary and Joseph A. Breaux, for defendants and appellants.
   Wyly, J.

Alphonse Tertrou sued out an order of seizure and sale against the succession of Charles Durand, which was enjoined by plaintiff, the administrator of said succession, on the grounds stated in the petition.

In this court the question which plaintiffs attorneys present for decision is: “ Whether a creditor holding a claim secured by special mortgage on property belonging to a vacant and apparently insolvent estate can proceed via executiva against said property in satisfaction of his debt ?” This question has long since been settled in the affirmative by numerous decisions of this court. It is no longer an open question. The law has not made the pecuniary condition of the owner of the hypothecated property a consideration in determining the right of a mortgage creditor to resort to executory process.

Therefore the financial condition of the succession enjoining the execu-tory process in question is immaterial.

It is therefore ordered that the judgment herein in favor of plaintiff be annulled, that the injunction herein be dissolved, and the suit dismissed, appellee paying costs of appeal.

Behearing refused.


author: MORGAN, J.

text:
    No. 905.
    Mathilde Bienvenu, Wife of T. Broussard, vs. Valsin A. Fournet.
    The defenses to this suit, brought on certain promissory notes secured by mortgage, are not -well founded.
    There is nothing to indicate that the debt sued on originated in the loan of Confederate money, or of Confederate money received by the defendant from the plaintiff. The notes were given, not for a loan, but in payment of á debt acknowledged 'to be due.
    As to prescription, it has been interrupted by the acknowledgment of the debt.
    The debt was a community debt, and the property mortgaged was community property. As such the defendant, being the head of the community, could be sued without regard to his wife, and whether the wife was dead or not.
    It is no concernment of the defendant’s that the mortgaged property has been sold. This is a matter between the plaintiff and the purchasers, should the plaintiff endeavor to exercise his rights. The only question jSi whether, as between the plaintiff and defendant, the debt sued on is due, and whether the property mortgaged is, as between them, subject to the payment of the debt. This court thinks it is.
    The district judge rendered judgment in favor of the plaintiff for the amount claimed, but denied her the right of mortgage. In this he erred. The plaintiff is entitled to both debt and mortgage.
    APPEAL from the Third Judicial District Court, parish of St. Martin. Train, J.

      Breaux <£• King, for plaintiff and appellant.

      DeBlanc & Perry, for defendant and appellee.
   MORGAN, J.

The suit is on certain promissory notes secured by mortgage for §4108 44, with interest at eight per cent from twentieth March, 1862.

The defenses are:

First — The consideration of the notes sued on was Confederate money. Second — Prescription.

Third — If due and not prescribed, the notes are. due by the community which existed between defendant and his wife, and, if payable, should only be paid out of the proceeds of the sale of the property mortgaged, the sale having already taken place.

The conclusions to which we have come upon the merits render it unnecessary that we should examine the bills of exception.

First — There is nothing to indicate that the debt sued on originated in the loan of Confederate money or of Confederate money received by the defendant from the plaintiff.

The act of mortgage, after relating the appearance of the parties, recites:

“ Lesquel declare devoir bien et lógitimement a Mons. Thélesphore Bienvenu, demeurant dans la susdite paroisse, la somme de six mille deux cents 62-100 piastres, balance diie par le dit V. A. Fournet au dit Thélesphore Broussard par réglement de compte fait entre eux ee jourd’hui, laquelle somme lo dit Y. A. Fournet s’oblige de payer et rem-burser au dit Broussard par tiers égaux dans un, deux, et trois ans a partir de la date des presentes.”

So that the notes were given not for a loan, but in payment of a debt acknowledged to be due. Wo see nothing Confederate in the transaction. It is simply the acknowledgment of a debt, to bo paid at a certain time.

Second — Prescription has been interrupted by the acknowledgment of the debt.

Third — The debt was a community debt, and the property mortgaged was community property. As such, the defendant, being the head o£ the community, could be sued without regard to his wife, and whether the wife was dead or not. 20 An.' 090.

It is no concernment of the defendant’s that the mortgaged piroperty has been sold. This is a matter between the plaintiff and the purchasers, should the plaintiff endeavor to exercise his rights. The only question before us is whether as between the plaintiff and defendant the debt sued on is due, and whether the property mortgaged is, as between them, subject to the payment of the debt. We think it is.

The district judge rendered judgment in favor of the plaintiff for the amount claimed, but denied her the right of mortgage. In this we think there is error. The plaintiff, we think, is entitled to both debt and mortgage.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be amended by granting to the plaintiff the mortgage as described in the petition, and that as thus amended the judgment be affirmed, the appellees to pay costs in both courts.


author: MobgaN, J.

text:
    No. 908.
    William Jacobs et al. vs. M. E. L. I. Frère, Wife, et al.
    One of the main questions in this ease is about the validity of a citation. It is direeted to Jules G. Olivier, of the parish of St. Mary, attorney in fact of Gabriel L. Euselior: “ Ton are hereby summoned to appear before the district court in and for the parish of St. Mary on the first Monday of October next, and comply with the demand contained in the petition of william Jacobs against you (a copy of which is hereunto annexed), or file your answer thereto in the office of the clerk of said court,” etc. No answer was filed to this suit. Judgment by default was rendered against Euselier and confirmed.
    This judgment is null and void for want of citation. The Code expressly provides that citation must be directed to the defendant. Here it was Olivier who was cited, and it was Olivier who was ordered to file his answer to the demand which was made upon him. Admit that Olivier was Euselier’s attorney iq fact, still when Euselier is sued the citation must be directed to him, and not to his agent.
    APPEAL from the Third Judicial District Court, parish of St. Mary. Train, J.

      Tucker & Davis and D. Caffery, for plaintiffs and appellants.

      Fred. Gates, for defendants and appellees.
   MobgaN, J.

Plaintiffs allege that they are judgment creditors of Gabriel L. Euselier.

They institute this suit for the purpose of annulling a judgment obtained by the defendant, wife of Euselier, against her husband, and to set aside the judicial sales of’ property made in execution of her judgment.

As to Jacobs, she excepts that he is not a judgment creditor of her husband.

As to Grevemberg, the other plaintiff, she pleads the prescription of one year, and the authority of the thing adjudged.

The judgment in favor of the defendant against her husband was rendered on the third of November,-1866.

The judgment in favor of Jacobs agdinst Euselier was rendered on the twentieth of May, 1870, on a claim dating back to the seventh of January, 1861.

The judgment upon which Grevemberg proceeds was rendered in the suit of Fanny C. Wykoff vs. Fuselier, on a claim running back to the year 1860.

In the suit of Jacobs vs. Fuselier, Jacobs prayed that “Gabriel L. Euselier be made a party defendant, that he be served 'with a, copy of this petition, and that he be duly cited to appear at the next term of this honorable court to answer this demand, and that said service of citation be made on J. G. Olivier, attorney in fact of said G. L. Euselier, the said Euselior being absent from the State.”

The citation is directed “to Jules G. Olivier, of the parish of St. Maiy, attorney in fact of Gabriel L. Euselier : “ I on are hereby summoned to appear before the district court in and for the parish, of St. Mary on the first Monday of October next, and comply with the demand contained in the petition of William Jacobs against you (a copy of which is hereunto annexed), or file your answer thereto in the office of tho clerk of said court,” etc. No answer was filed to this suit. Judgment by default, was rendered against Euselier and confirmed.

The judgment is null for want of citation. The Code expressly provides that citation must be directed to the defendant. Here it was Olivier who was cited, and it was Olivier who was ordered to file his answer to the-demand which was made upon- him.

. This renders it unnecessary for us to pass upon the bill of exception taken to the ruling of the district judge upon his having rejected the power of attorney from Euselier to Olivier. Admit that Olivier was Euselier’s attorney in fact, still, when Euselier is sued the citation must be directed to him, and not to Ms agent.

As to Grevemberg, his action is to annul a judgment on the ground of fraud and collusion. The judgment under which he brings this suit was rendered on the third of November, 1866. All the material allegations-in his petition in this case were set up in his answer to the suit of Frère vs. Mentz, Sheriff, et al. In that suit he was cast. The judgment in that case has become final. He is, therefore, estopped from setting up the same issues again. Besides, his action is prescribed, more than one year-having elapsed from the time when the judgment attacked was rendered prior to the institution of this suit.

Judgment affirmed.