text:
    No. 10,533.
    Parish School Board of East Feliciana vs. George H. Packwood et als.
    AVhere the acts and proceedings o£ a School Board are Avithin the scope of its authority, and it has examined the statement and vouchers o£ its treasurer, and approved the same and granted a discharge, they are conclusive, unless said approval and discharge were obtained on false statements and fraudulent vouchers.
    The burden of proof in a suit to rescind a settlement with a School Board for fraud is on the plaintiff.
    Although the treasurer of the School Board may have kept his books in an irregular manner, yet, if the funds in his hand were accounted for, he can not be hold liable because his books are apparently different from his settlement with the School Board.
    APPEAL from the Sixteenth District Court, Parish of East Feliciana. Buchner, J.

      John H. Stone, District Attorney, and W. R. Rutland for Plaintiff and Appellant.

      Kernan & Laycoch, J. G. Kilbourne, T. D. Wall arid Charles E. Lea for Defendants and Appellees.
   The opinion of the court was delivered by

McEnery, J.

This is a suit by the School Board of the Parish of Bast Feliciana, against Geo. H. Paekwood, ex-treasurer of the School Board, and the sureties on his official bond, for the sum of $10,000 claimed to be due said School Board by the defendant.

The case was tried by a jury and there was a verdict and judgment thereon in favor of defendant, from which the School Board has appealed.

The defendant was the treasurer of said board from January, 1884, to the 4th day of September, 1888.

A new School Board was appointed in 1888, and the books of the defendant delivered to the new board; but on examination of these books, the new board conceived the idea that -Packwood had not fully and faithfully accounted for the school funds in his custody in his quarterly statement with the old board.

In substance, the petition alleges that the settlements of Packwood with the board were false and fraudulent, based on false statements; and that said board received the same in error and in error granted a discharge to said Packwood.

The object of this suit is to rescind the settlement made between the School Board and its treasurer and the annulment of the discharge granted to him.

The acts and proceedings of the board were within .the scope of its authority. The settlement and discharge must be presumed to be correct and conclusive, unless the same were obtained, as alleged in the petition, through false and fraudulent statements and vouchers, and accepted by the board through error.

The burden of proof is on the plaintiff to prove the facts which would annul the settlement and discharge made with the School Board by the defendant.

On the trial, there was a total absence of any such proof. The defendant therefore might have rested his defence on this failure of the plaintiff board to show the fraud alleged in the petition.

The plaintiff, it seems, relied upon the entries and statements in defendant’s books, and the failure of the School Board to hold regular quarterly meetings, when the defendant should have tendered his quarterly statements.

The books may have been irregular in their arrangements, and confused in their statements in containing summarized instead of itemized accounts; and the School Board may not have assembled as often as duty prompted; yet if the defendant tendered his quarterly statements when the board met, and accounted for all funds received and disbursed by him, it would be harsh to hold him responsible for his deficiencyTn book-keeping, or for the failure of the School Board to meet regularly and receive and examine his statements.

If the funds in his hands were properly administered and reached their proper destination, he is entitled to credit for the amounts legally paid out by him, although he may have been at fault in the exact and proper arrangement of his books, and may not have made his quarterly statements to the School Board at the time appointed for its quarterly meeting. Simmons & Leroy vs. Boulit, 26 An. 277.

It is not shown by the record that defendant received any greater sums of money than he charged himself with, in his statements made to the School Board, upon which his several discharges were granted. If they were false in this respect, it was an easy matter to show it, as the sources ■ for revenue for school purposes are few, and the information necessary to show the amounts received from each source, was accessible.

The disbursement of the fund reaches only a few-objects. The main one is for the payment of salaries of teachers, and the others for repairs to school buildings, salary of secretary and incidental expenses, amounting in the aggregate to an insignificant sum, when compared to the amount set apart for the payment of teachers.

The School Board employed the teachers and must have known the number of teachers to whom salaries were due and the amount of such salaries. It is its duty to order repairs and authorize incidental expenses, and it must have known, whether the repairs were done and the incidental expenses incurred, and the amount due for each item of expense thus authorized.

It is not probable therefore, in such matters, embracing such few objects, all of which were within the knowledge of the board, that it could have been imposed upon without culpable negligence on its own part.

There is no allegation in the petition, nor is there any evidence in the record, that even suggests negligence on the part of the School Board.

A most significant fact in this case is, that there is not a teacher complaining of the failure to receive his salary; nor is there any one complaining of not receiving what was due him.

At various times, the defendantmadehis settlement with the School Board, and received a qnietus for each settlement. The last and final settlement was made on July 7, 1888.

The minutes of the School Board say of this settlement: “The treasurer submitted his reports and vouchers to date, which, together with his books, were examined and found correct, with a balance of 138.95 on hand, after which the vouchers were burned by the board.” The previous statements to the board by the defendant were lost or destroyed. They were in the custody of the board. A summarized statement of each settlement was forwarded to the State Superintendent of Education.

These compared in amounts with the settlement with the School Board.

All the members of the School Board signed the last and final settlement on 7th July, 1888.

W. E. Norseworthy was the president of the board during defendant’s official connection with it. He was certainly competent to examine-and credit defendant’s accounts. He is a graduate of Centenary College, and was at one time a professor in that institution. His testimony is conclusive as to the settlements made by defendant with the board. It shows that all statements and vouchers were carefully and critically examined, particularly the last and final settlement. His testimony is corroborated by other members of the School Board.

There are some minor details relating to clerical errors that it will not be necessary to discuss, such as the fee received by D. R. Rutland, the attorney for the School Board in this suit, which figured in the amount attempted to be charged to the defendant and which was not credited to him; and defendant’s error in his statement as to an amount which he imagined he owed the School Board, and which he expressed a willingness to pay, but which, on investigation, was found still to be in the State school fund, and was not paid to defendant.

The evidence convinces us that the defendant honestly and faithfully accounted for all the school funds received by him, and the quietus granted him by the School Board was given, after a careful and patient examination of his accounts as treasurer of said board.

Judgment affirmed.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 10,503.
    John B. Meyers et al. vs. Louis Mathis et al.
    A sale of property with a front on a certain street, extending* between certain lines to the river, without guarantee of measurement, conveys batture or alluvion rights, as effectually as if the land had been sold fronting on the river, between the same lines, to the street line.
    The area conveyed would be the same and the rights transferred and acquired, identical.

      Express mention in a deed, when the property fronts on the river, that the right of batture is sold with it, is surplusage. Without such declaration the purchaser acquires the batture or alluvion rights.
    APPEAL from the Civil District Court, Parish of Orleans. Bightor, J.

      Moise & Cahn for Plaintiffs and Appellees.

      Henry P. Dart for Defendants and Appellants.
   The opinion of the court was delivered by

Bermudez, C. J.

This is a suit to compel the defendants to comply with an adjudication made to them of certain real estate in this city, for $11,700.

The defence is, ’that the title offered, describes the lots as carrying the batture privilege, or right of accretion, when, in truth, the plaintiffs have no right thereto, for the reason that titles of their authors to them make no conveyance thereof.

Prom an adverse judgment, the defendants appeal.

The property adjudicated, consisting of three contiguous lots, is described as situated in a square bounded by Jena, Water street, Napoleon avenue and the Mississippi river, having a stated front on Water street, and extending in depth to the waters of the river, together with all rights of batture, or accretion, whether the same is now formed or hereafter to be formed, without any reservation whatsoever.

These lots were sold to the company represented by the plaintiffs, under the same description, by Widow Seiler, as universal legatee of her husband. . ,

The latter’s title, derived from the Millaudcns, contains a description of the lots as bounded by Jena and Water streets, Napoleon avenue and the Mississippi river, fronting on Water street, with a stated approximated depth, without any guarantee as to measurement.

The property thus sold measured, each lot, some thirty feet front, on a depth of a little more than three hundred feet.

Accretions have since formed successively and imperceptibly to the first quantity of soil by which the river water line was distanced by about six hundred feet.

The right of the Millaudons to the batture at the time of sale is not disputed.

The contention is, that as the deeds to Seiler are reticent as to the right to batture, and merely mention the river line as a boundary, all the accretions since formed have not enured to Seiler and his assigns. In other words, that the description given is an exclusion of land not described.

It is admitted that other lots above the avenue fronting on the river were sold at the same auction at which Seiler bought, to various purchasers, and that all the deeds, except Seiler’s, contained an express mention of the right of batture being sold.

Jena street and Napoleon avenue run perpendicular apparently to the river. On Water street, which runs parallel with, or in the same sense as the river, the levee existed at the time. Since, it bias been removed therefrom and built nearer the river, so that the land in controversy lies back of the old levee to the river water line.

The only question presented is: Whether the title made to Seiler carried with it a right to alluvion soil in posse, which now constitutes the 600 feet mentioned.

The sale was by metes and bounds, as concerned the front and rear lines.

Had the titles to Seiler described the lots as measuring so many feet front on the river, between Jena street "and Napoleon' avenue,, extendingan depth to Water street, on whieh the levee stood, there could have been little or no room for discussion; for it is settled beyond the possibility of a doubt, that the words “front to the river," “frente alrio" convey a riparian estate and that, under them, the vendee is entitled to the river for his boundary. 6 M. 216; 18 L. 259; 9 M. 656; Cambre vs. Cohn, 8 N. S. 596.

The ruling in the last mentioned case, invoked by the defendants,, itself recognizes the correctness of the doctrine. In expounding the law, the court said, however, that it is “not applicable, to a sale1 made of a certain limited part, taken from a whole tract of land, when, at the time of sale, the vendor held in full property another part between that sold and the river.”

In the more recent case of Ferrière vs. New Orleans, 35 An. 309, it-was held that when property was sold, fronting and ending on the levee and not on the river, the sale embraced all the rights of property which the owner had in the premises, up to, but not beyond the levee, and, therefore, that the vendor had not conveyed the batture accretion or alluvion right. This case is but a corollary of previous ones.

The right to future alluvial formations is a vested right inherent in the property, thus: ‘ ‘ The portion added is not considered as new land. It is part of the old, which acquires the same qualities and which- belongs to the same owner, in the same manner as the increase by the growth of a tree makes part of the tree.” 8 N. S. 567; 18 L. 54; 13 A. 105.

In the present case, the sale is not of a certain limited part, taken from a whole tract of land, and the vendors at the time of sale did not hold any other between that sold and the river.

The sale was from the levee then ir existence on Water street to the river, and included, not only the soil actually susceptible of possession, but besides, all such other as might be subsequently formed in the course of time, labentibus annis, or in addition, as an increment, to that conveyed.

It is to be observed that the measurement of the lateral lines is not fixed and determined with precision. It shows that it was not possible to do otherwise, precisely because the probability of accretions had entered into the minds of both vendor and purchaser. Hence it is, that the act declares that the sale is made without guarantee as to measurement. The declaration is clearly indicative that the vendor was unwilling to be bound as selling a certain limited part which was not ascertainable, but designed to sell the property such as it was and might thereafter be in area.

Such being the case, what difference is there between selling front to the river with a depth extending from it to a parallel or similar line, and selling front on such line with a depth extending from it to ■the river?

In either case the superficies would be the same and the rights to the batture alike.

Under no conceivable contingency would the vendor pretend not to have sold the whole of it, and claim an inch of ground between the river and the street and the latteral lines; for the plain reason that having divested himself of all title to the land comprised between the front and rear lines and the side limits, he could not be permitted to gainsay and repudiate his acts and revendieate what has passed by his free volition from him to his vendee for due consideration.

There is.no force in the contention that, because at the time of the auction sale, at which Seiler acquired, other lots were sold to other purchasers, with the batture right expressly mentioned, and because such right was not thus mentioned in his deed, he did not ■acquire it.

The mention of the batture right as conveyed in the other title was surplusage.' The omission of it from Seiler’s title is innocuous. As the property sold to those parties extended to the river, as it did in Seiler’s act, the purchasers would have acquired, as Seiler has, without such mention.

The conclusion is, therefore, that Seiler acquired not only the soil in esse at the time he purchased, but also the right of the batture or alluvion soil, susceptible of formation in futuro; that his rights passed to his widow as his universal legatee, and from her to the company now represented by the plaintiffs as commissioners and that the title offered by them to the defendants is such as they are bound to accept.

Judgment affirmed.


author: Bermudez, O. J.

text:
    No. 10,519.
    Succession of Joseph Llula.
    The failure to file a transcript of appeal seasonably, on a regularly obtained and perfected appeal, is equivalent to an abandonment of the same and warrants the dismissal of another similar appeal, subsequently obtained.
    The fact that the original record was lost or mislaid is no justification for such failure.
    On a proper showing, the appellant could have applied for and obtained an extension of time, which was not done.
    The omission implies negligence and fault on the part of appellant and an abandonment of the first appeal, which authorizes the dismissal of the second one.
    APPEAL from the Oivil District Oourt for the Parish of Orleans. Rightor, J.

      W. 8. Benedict for the Appellant.

      A. L. Tissot and Henry P. Dart for the Appellee.
   On Motion to Dismiss.

The opinion of the court was delivered by

Bermudez, O. J.

The motion charges that the appeal was taken after a previous one had been obtained, perfected and abandoned.

It appears that a devolutive appeal was asked on December 5, 1889, returnable on the third Monday of the same month, and the bond required was furnished; that the transcript of appeal was not-filed within the legal delay; that, after the return day had gone .by, the same party sought and obtained another like appeal on January 6, 1890, returnable on the third Monday of the same month, and that the proper bond was executed.

Under this last appeal, the transcript was filed here, on January 11, 1890.

The appellant claims that the motion should not prevail and avers that, under the first appeal, the transcript was not filed here, because the original record, needed for transcription, could not be found in the clerk’s office below; that the fact is, that, during the time, when it could have been copied, it was in the office of one of the counsel for appellee, unknowingly, who apologized for its having then been in his office, and offered a waiver, which afterward was. declined.

On the other hand, counsel for appellee denies having given any consent in the premises.

Affidavits and counter-affidavits from the clerk and the lawyers in the case have been submitted.

We ought not perhaps to have examined them, but, after doing so, we are unable to infer from them any justification of appellant’s course, particularly as there existed a plain and adequate remedy at hand.

If the transcript, after the first appeal, was not ready for filing' here on the return day, the appellant ought to have made in this court a showing of the loss or mislaying of the original papers, and an extension of time would have been allowed. • This was not done.

The omission implies negligence on the part of the appellant and an abandonment by her of the first appeal, which warrants the dismissal of the second one.

Appeal dismissed.


author: Fenner, J.

text:
    No. 10,543.
    Daniel Candiff et al. vs. Louisville, New Orleans & Texas Railway Company.
    1. A hrakeman employed on a freight train in charge of a conductor has no implied authority to bind the company by a contract of passage, and his permission to a person to ride does not make such person a passenger.
    2. If it he true, as stated by plaintiff’s witness, that defendant’s conductor, on discovering that a oar had been broken open, believing that it had been done by a certain person, coolly walked up to suoli person as be was standing quietly at a station, saying and doing nothing, and shot him down without a word, such an act would he a murder entirely beyond the scope of any employment or function of the conductor, for which the company could not be held responsible.
    3. If, on the other hand, the conductor’s statement be true, that the person shot was detected in having broken open one of the ears in the night time, and when discovered jumped out of the car and ran, and refused to stop when halted, and was thereupon fired at and shot by an employe of the train, in such ease the criminal’s joint and contributing- fault would bar his recovery in a civil' action for damages.
    PPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Branch K. Miller for Plaintiffs and Appellees:
    One who goes upon a freight train for transportation, with the permission of the • hrakeman, to whom he pays a sum received as fare, and by whom he is induced 38 An. 115; 4 Am. and Eng. R. R. Oases, 589. to believe lie is a passenger, is a passenger, as regards the railway company.
    The conductor of a freight train represents the railway, which is responsible for his negligent or wilful acts within the scope of his employment. 37 An. 632, 654; 39 An. 1019; 112 U. S. 377.
    A master is responsible for the wilful as well as the negligent acts of his servant, if done within the scope of his employment, or under color thereof. 40 An. 91; 34 Am. and Eng. R. R. Cases, 316, 281; 46 N. Y. 23; 12 Hun. (X. Y.) 435; 12 Allen (Mass.) 49; 104 Mass. 117; 38 Ind. 125; 55 Mo. 212; 21 Ohio St. 518; 3 Hun. (N. Y.) 329; 63 111. 151; Patterson’s Railway Accident Law, Sees. 109, 111, 118; 36 Wis. 657; 103 111. 546; 60 Ga. 281; 13 Federal Rep. 116; 15 Am. and Eng. R. R. Cases, 142; 4 Am. and Eng. R. R. Oases, 537; 28 Am. and Eng. R. R. Cases, 456; Wood on Master and Servant, page 567, See. 307, pages 552, 553; Wharton on Negligence, Sees. 157, 158, 160; Bishop’s Non-Contract Liability, Secs. 608, 609.
    A railway company is responsible for the tort of one, incited and encouraged to its commission by a conductor of the company within the scope of his duty. 1 Balden (Conn.) 571; 1 Hun. (N. Y.) 52; 39 La. An. 1030.

      Farrar, Jonas & Kruttsohnitt for Defendant and Appellant:
    A.
    Even if the facts stated by plaintiffs on page 3 of their brief were correctly stated, plaintiffs would not bo entitled to recover for the reasons following, to-wit:

      1. Permission to a person to ride on the train of a railway company by an employe, not shown to have been in charge of the same, does not make such person a passenger, nor entitled to the rights of a passenger. lieary vs. Railway Company, 40 An. 38; Hanson vs. Railway Company, 38 An. llo, and authorities cited by the court in both of these cases.
    2. liven if such person be a passenger under the circumstances above stated, the obligation of the railway company to protect him is limited to the police of its trains, and of its station yards or approaches to its trains, and does not extend to any part of the open country through which its tracks pass, and where a passenger chooses to alight from the train.
    3. The obligation of a railway company to one not its passenger is governed by the general principles of the law of master and servant, viz: That it is liable for the wrongful act of its servants, only if such acts were committed in the exercise of the functions in which they were employed, and were contemplated by their employment, and which, if properly and lawfully done, would have been within the scope of their functions. liven if the injured party was not a trespasser, but was lawfully on defendant’s premises, and was properly dealing with defendant’s servant as a servant, these facts do not suffice to fix defendant’s liability, if the assault was wanton and entirely foreign to the functions committed to the servant; otherwise a merchant, or a store keeper, or a householder, would be liable for wanton assaults committed by their clerks or servants upon customers or visitors, which liability would clearly not exist unless the masters were guilty of negligence in employing so dangerous a servant. "Williams vs. Pullman Car Co., 40 An. 89; Ware vs. Barataría Canal Co., 15 La. 169; Dyer vs. Rieley and Leathers, 28 An. 6; Porter vs. O. R. I. & P Ry. Co., 41 Iowa 358.
    Under the laws of the State of Louisiana a master is not liable for the unlawful act of the servant which has caused injury to a person with whom the master has no contractual relations, unless the master could have prevented the injury and failed to do so. C. C. 2320.
    4.Ifiven if the court should conclude that Daniel Candiíf, Jr., boarded defendant’s train in New Orleans without any criminal or improper intent, and by permission of one of its brakemen; that he road to Burnside station; that he there descended from the roof of a car upon which he had been riding; that whilst standing at the side of said ear he was approached by a brakeman or conductor of the defendant company, who wantonly, maliciously, and without the slightest provocation shot him dead, the court must, nevertheless, decide in favor of defendant, unless it be further proved that defendant authorized its employes to arm themselves, and to take human life whenever they might conclude such taking to be necessary and proper in the course of their employment, and in the service of the defendant.
   The opinion of the court was delivered by

Fenner, J.

This is an action by a father and mother to recover damages for the killing of their minor son by a servant of the defendant company.

The discrepancy between the facts alleged in the petition and those appearing on the evidence is very wide.

The petition discloses that, on May 6, 1889, their son, “took passage for Point Houmas, La., on a train of said company, and duly paid his fare to the conductor of the train;” that at Burnside station, while the train was stopping, he descended from the train; that while thus being at said station, an alarm was raised that a freight car of the train was being broken open and robbed by thieves; that the conductor, brakeman and other employees ran to said car to drive off and capture the-thieves, and that the conductor or one of the other employees, mistaking the son of petitioners for one of the thieves, shot him with a pistol, etc.

The evidence discloses a very different state of facts.

Plaintiffs’ case rests entirely upon the testimony of a single witness, a colored youth named Esteve, who is contradicted on nearly every important point by other witnesses, and who contradicted himself by inconsistent statements made at different times.

His story is that he and the boy, Candiff, got on top of a car of a freight train of defendant at New Orleans to ride to Kenner; that they gave one of the brakemen of the train 15 cents to let them ride; that before reaching Kenner they called the brakeman, and wishing to go further, gave him a dollar; that, when the train stopped at Burnside station, they descended to ease their limbs; that, as they were so, quietly standing there, no alarm or excitement existing, the conductor came up to them and shot Candiff, and then putting his pistol at witness’ face accused him of breaking into the car, and ordered him to get back into the car. He says distinctly that there was no alarm or excitement, and he heard nothing about a car being broken into until after the shooting.

It is very clear, under this statement, even if true, that Candiff and Esteve were not passengers. They were simply engaged in stealing a ride on defendant’s train with the corrupt connivance of a brakeman.

The brakeman of a freight train has no implied authority to bind the company by contracts of passage.

The train had a conductor, as Esteve admits he knew, who had charge of the train, and who alone, if any one, could have accepted these parties as passengers. Reavy vs. R. R. Company, 40 An. 33; Patterson Railway Acc. Law, Sec. 209.

But the brakeman denies the whole of Esteve’s story; says he never consented to their riding, and was not aware that they were on the car until just before the train stopped at LaPlace Station, when he discovered them standing on the draw-heads between two cars, and that, at LaPlace, he ordered them off the train, and supposed they had left.

The conductor says that when the train was stopping at Burnside, as he walked along, he heard talking in one of the box cars; that, anticipating trouble, he stepped into the station agent’s office and borrowed a pistol for self-protection; that he then walked to the car and discovered that it had been broken open by cutting the seal and knocking off the cleat, and that some persons had been in the car; that it was night and he could not see the persons; that about that time one of the brakemen came up; that then two men jumped out of the ear and started to run; that he told them to stop and they did not stop; and that then the brakeman fired and shot one of them, who proved to be Candiff.

Whether we accept the version of Esteve or that of the conductor, it is plain that the railway company can not be held liable.

We have already said that the relation of carrier and passenger did not exist, and defendant’s liability vel non is governed by the law of master and servant.

If Esteve’s version be true, the shooting of Candiff was as coldblooded a murder as Was ever committed. It presents the conductor-as coolly walking up to a man standing quietly, doing and saying nothing, and shooting him down without a word. No stretch of the doctrine that masters are responsible even for the torts of their servants when done within the scope of their employment and in the exercise of the functions in which they are employed, can make it cover such an act as this.

Admitting that the conductor is charged with the duty of protecting the cars and contents confided to his care, and that acts done in execution of such charge are within the scope of his employment, and admitting that he supposed Candiff had broken into the car, and shot him for that reason, in what manner was such shooting, under such circumstances, necessary or conducive to the protection of the property?

If, on the other hand, we accept the conductor’s version, we have the case of a man detected in the crime of breaking open a car in the night-time, who attempts to escape by running away, who, when ordered to stop by parties in charge of the property, refuses to do so, and who is then shot by one of said parties.

It is not necessary to justify the act of the brakeman or to decide whether or not it was within the scope of his employment, in such manner as to make the company responsible. It is very clear that, in such a transaction, the party detected in the commission of a crime, and shot while attempting to escape arrest, would be in a case of such contributory fault that the law would afford him no relief in a civil action for damages.

Counsel for defendant suggests the very apt analogy of a night watchman employed to guard a house. He detects burglars in the house, who attempt to escape, and on their failing to halt when called to do so, he shoots one of them. Could the burglar shot be listened to in an action of damages?

On the other hand, if the watchman had discovered that a burglary had been committed, and, some time afterward, seeing two persons standing quietly in the street, whom he supposed to be the burglars, he walks up to them and shoots one of them without a word, who proves to be innocent, would his employer be liable?

These questions seem to us to answer themselves.

It is, therefore, adjudged and decreed, that the verdict and judgment appealed from be annulled and set aside, and that there be now judgment in favor of defendant, rejecting the demands of the plaintiffs at their costs in both courts.


text:
    No. 10,515.
    Mrs. Dorothea Bruhn,Widow, etc., vs. Firemen’s Building Association.
    1. Act No. 25 of 1878 authorizes the sale of property held in indivisión between minors and others, at private sale, on compliance with the requirements therein contained, and sanctions the title passed to purchasers under such sales.
    2. The proceedings in this case comply fully with the requirements of the act and the title is approved.
    3. While it is necessary that the proceeding should be conducted contradictorily with the tutrix of the minors, when it appears that she participated therein, and approved the same, failure to cite her will be cured.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Frank Zengel for Plaintiff and Appellee.

      Henry J. Dart for Defendant and Appellant:
    1. It was not intended by Act 25 of 1878 (amendatory of Act 184 of 1869, Rev. Stat., Sec. 2667) to abolish all the rules and safeguards previously thrown around the partition and sale of minors’ property.
    2. It is the evident intention of this statute to provide singly for the partition of such property by private sale in execution of a judgment of partition — the manner of executing the judgment is changed, and not the method by which the judgment is obtained. •
    3. To validly alienate a minor’s interest, the partition proceedings must be conducted as provided in C. C. 1289, etseq.; but the expense óf a public sale may be avoided when a family meeting recommends the execution of the judgment by private sale of the common property.
   The opinion of the court was delivered by

Fenner, J.

Plaintiff, having sold to defendant certain property, •takes this proceeding to compel defendant to accept the title tendered and to comply with the terms of sale.

Defendant, admitting the sale and his willingness to execute the same on receiving a good title, objects to the title tendered on the ground that plaintiff acquired under a sale for partition made in the matter of the succession of Charles Hickey, in which minors were interested, and which proceedings were void because' there was no citation to the minors and because they did not, in other- respects, conform to the requirements of law.

The sale, under which plaintiff acquired, was made in virtue of Act No. 25 of 1878, which provides:

“When two or inore, persons, some or all of whom are minors, hold property in common, and it is the wish of any one of them, or, if a minor represented by his tutor or tutrix, to effect a partition on the advice of a family meeting, duly convened according to law, to represent the minor or minors, said property may be sold at private sale for its appraised value, said appraisement and the terms of said sale to be fixed by the family meeting, and said proceedings to be homologated by the judge of probates of the parish in which said minor resides.”

The property in controversy was inherited from Charles Hickey by his three minor children, and was under the administration of their mother and natural tutrix.

One of the children, arriving at the age of majority, presented a petition to the court, under whose authority the tutrix was administering, complying, in all respects, with the above act, and praying for the calling of a family meeting in behalf of the minor co-heirs, to advise whether or not the property should be sold at private sale and to fix its appraisement and the terms of sale.

The family meeting was ordered and. duly held, and, with the concurrence of the under tutor, advised in favor of the private sale and fixed the appraisement and terms.

The. tutrix of the minors and the major heir united, in a petition to the court presenting the proces verbal of the family meeting and praying for its homologation and for the appropriate order of sale. The court granted its order accordingly; and, in pursuance thereof, the tutrix and the major heir sold the property to plaintiff herein for a price exceeding the appraisement, which she duly paid, and received the title.

If Act 25 of 1878, above quoted, means anything, it certainly authorizes the sale of property, in which minors are interested in indivisión, in the manner here pursued, and sanctions the title passed to the purchaser by such a sale.

We fail to discover any requirement of the act which has not been literally complied with. The act does not expressly require citation of the minors through their tutrix, but, doubtless, the necessity of making the tutrix a party is fully implied.

In this case, however, the participation of the tutrix is established by the fact that she joined in the prayer for the homologation of the proceedings of the family meeting and for the oz’der of sale, and joined in the act of sale.

As we said in Durruty’s case, recently decided, the purchaser, who has paid the price under such a sale, is not concerned with further proceedings in partition of the price between those interested therein.

We think the title tendered is good.

Judgment affirmed.


author: McBnery, J.

text:
    No. 10,537.
    The State of Louisiana vs. Henry Heidenhain.
    The ordinance adopted by the Council of the City of New Orleans, prohibiting smoking in the street cars, is constitutional and valid.

      The police power delegated to the city in Sec. 7 of the charter gives ample authority for the enactment of the ordinance.
    There is much discretion left to a municipal corporation in determining what is a nuisance, and the exercise of this discretion will not be judicially interfered with unless the corporation has been manifestly unreasonable and oppressive, invaded private rights and transcended the authority granted to it.
    To determine what is a nuisance is a question of fact.
    The City Council of New Orleans, to a certain extent, is vested with legislative authority, and it is vested with that discretion within its authority common to all legislative bodies. Within the exercise of this legislative discretion it has authority to determine what is a nuisance, and to pass the necessary ordinances to suppress it.

      \ PPEAL from the First Recorder’s Court for the Parish of Orleans. lx Murphy, J.

      T. McC. Hyman, Assistant City Attorney, and Qarleton Hunt, City Attorney, for Plaintiff and Appellee:
    The right exists in the Council of the municipal corporation to determine what, in its nature and use, it deems a nuisance, and to direct its discontinuance under the penalties which it is, by legislative authority, empowered to impose or inflict.
    An ordinance to suppress the nuisance of smoking in the confined space of a street car, being m the exercise of the police power, is not in contravention of personal liberty, secured to the citizen in the bill of rights. Articles 1 and 2 of the Constitution of 1879; Boston Beer Company vs. Massachusetts, 97 U. S. 25; Fertilizing Company vs.'Hyde Bark, 98 U. S. 659; Dillon on Mun. Cor., Sec. 141; Cooley, Const. Lim., p. 708; State vs. Freeman, 38 N. H. 428.

      B. Howard MoCaleb, Girault Barrar and Henry Heidenhain for Defendant and Appellant:
    Dillon on Mun. Cor. 336, p. 343; 353, p. 353; State vs. Bright, 38 An. 1; Tiedeman, Lim. of Police Bower, pp. 426,427, 428,429; Ibid.,pp. 638,639; Cooley, Const. Lim., pp. 229, 230, and authorities.
   The opinion of the court was delivered by

McBnery, J.

The defendant appeals from a conviction by the First Recorder’s Court of the City of New Orleans for a violation of Ordinance No. 4197, adopted January 2, 1890. For two distinct and separate violations of the ordinance he was for each violation sentenced to pay a fine of $25, or thirty days’ imprisonment.

The ordinance is as follows:

Whereas, The custom of permitting smoking in the street cars of this city is a most vile and objectionable one to the majority of our citizens, especially to the ladies, who are entitled to that courtesy and consideration due to their sex; .and

Whereas, This alone of all the cities of the Union allows such a discomfort to those of its citizens who ride in the public cars; be it

Resolved, That from and after the promulgation of this ordinance, that smoking in any street car of .this city is hereby prohibited and • shall hereafter be considered as a misdemeanor, and any one so offending, or any driver of a street ear who permits such an offence, shall be fined not less than $5 nor more than $25, or imprisoned not less than five days or more than thirty days, recoverable by the Recorder of the district in which the offence shall be committed. And be it further

Resolved, That one-half of any money thus recovered shall be the property of the party giving such information and testimony to the Recorder as will lead to the conviction of the offender; be it further

Resolved, That all laws or parts of laws in conflict with the above be and the same are hereby repealed.

Adopted by the Council of the City of New Orleans, January 2, 1890.

The defence is:

1. The unconstitutionality of the ordinance.

2. That the City of New Orleans is without power or authority under her charter to pass such an ordinance.

8. That the ordinance in question is vague, indefinite and insufficient in its terms, and does not define what acts shall constitute a violation or infringement.

4. That it imposes upon the drivers of street ears duties and functions beyond, the powers of the Common Council.

The ordinance does not deprive the defendant of personal liberty nor does it invade any right of private property.

Smoking is not made an offence, but it is prohibited only in a certain designated place.

The third and fourth grounds are without merit. The ordinance makes it specifically an offence to smoke in a street car. The street car drivers- and the car companies are not complaining of the ordinance.

2. The several street railroad companies have adopted the above ordinance as a part of their regulations, and prohibited smoking in all their cars immediately after the passage of the ordinance. When the defendant entered the car there was conspicuously displayed a card notifying him that smoking was prohibited in that. particular car.

A nuisance belongs to “that class of wrongs that arise from the unreasonable, unwarrantable or unlawful use by a person of his own property, either real or personal, or from his own improper, indecent or unlawful personal conduct, working an obstruction of or to the right of another or of the public, and producing such material annoyance, inconvenience or discomfort or hurt that the law will presume a consequent damage.” Woods on Nuisance.

There is no doubt of the fact that smoking in the street cars in the City of New Orleans had caused to the great majority of people using them material annoyance, inconvenience and discomfort. This is particularly so in the' winter' season when the cars are closed. There is not only discomfort, but positive danger to health from the contaminated air. The record establishes these facts.

Smoking in itself is not to be condemned for any reason of public policy. It is agreeable and pleasant, almost indispensable to those who have acquired the habit, but it is distasteful and offensive, and sometimes hurtful to those who are compelled to breathe the atmosphere impregnated with tobacco in close and confined places.

There are many other habits in manners and conduct which in some localities and places are not objectionable to the public, but when committed elsewhere may become offensive and the subject of penal municipal legislation. Smoking may be classed among these subjects of legislation by the municipal corporation.

The police power delegated to the Oity of New Orleans in its charter gives ample authority to the city to maintain its cleanness and health, to maintain good sanitary conditions in the streets, public places and buildings, to suppress all nuisances and to impose a fine and imprisoment for the violation of ordinances created in pursuance of this' delegated power. Sec. 7, Act 20 of 1882.

The authority to abate nuisances is a part of the police power vested in all large and populous cities. To’ determine what is a nuisance is a question of fact.

The Oity Council of New Orleans is to a limited extent clothed with legislative authority and it is vested with that discretion, within its powers, common to all legislative bodies.

Within the exercise of this legislative discretion, it has the authority to determine what is a nuisance, and to enact the necessary •ordinances to suppress it. Kennedy vs. Phelps, 10 An. 227; Oity of Monroe vs. Gersparch, 38 An. 1011.

Much is therefore left to the discretion of the municipal corporation in determining what is a nuisance, and the discretion thus exercised will not be judicially interfered with unless the corporation has been manifestly unreasonable and oppressive, invaded private rights and transcended the power granted to it. Dillon Mun. Oor., .Sec. 379.

In the instant case no private right, either of person or of property, has been violated or invaded. The Oity Oouncil in passing the ordinance did not transcend its powers. It had authority under Section 7 of the charter to provide for the public health. It can therefore require in public places, theaters, halls, etc., that there shall be ventilation for a supply of fresh and pure air; and in order to preserve the public peace, order and health, and under its general police authority in said Section 7, it can compel the owner of public halls and theaters to provide means to prevent fires and to supply fire escapes in case of fire. And in pursuance of the same power it can, in order to preserve pure and fresh air in crowded halls, and to prevent fire, prohibit smoking in the same.

The same authority and the same reasons apply in the prohibition of smoking in street railway cars.

It is as essential to health and to comfort to have pure air in them as in any other crowded place.

The facts in the case of State vs. Bright, 38 An. 1, have no application to this case. The former involved the question of the power of the city to punish a property owner for not keeping his sidewalk clean and in repair. This court decided that there was no authority for the city to declare the failure to raise and repair the sidewalks a misdemeanor, and fix a penalty to the same, as there was an absence of such authority in Section 7 of the charter.

The Oity Oouncil had ample authority under Section 7 of the charter to enact the ordinance under which the defendant was convicted.

Judgment affirmed.


text:
    No. 10,572.
    Joseph Raymond vs. A. J. Villeré, Register, et al.

      Mandamus does not lie to the Recorder of Conveyances to compel him to cancel inscriptions showing titles to real estate in certain, parties, unless it is shown conclusively by final and executory judgments' that the same have been decreed to be erased, contradictorily with the parties concerned, and that it is his ministerial duty to expunge them from the archives of his office, the less so where the relator discloses no interest.
    Parties in whose favor inscriptions exist on the conveyance books of the parish can not be forced to appear as defendants to litigate their rights of ownership or the like, in proceedings against the recorder for the cancellation of the same. They are entitled to regular process and trial.
    Exceptions to the form of the proceeding and to want of a cause of action, interposed by the parties interested, are well founded, and must be sustained in such a case.
    Engrafting ordinary suits in which titles to real estate are involved, in such a pro-; ceeding, is not permissible.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightorj J

      Joseph Maille and O. A. Breaux for Plaintiff and Appellant:
    1. The revenues of a property which belong to the owner of the property can not he seized and sold separately from the property itself. 29 An. 354.
    2. Any party in interest may proceed by rule to remove anything which illegally clouds a title. 29 An. 354.
    3. A writ of seizure and sale can not legally issue until three days after notice of the decree of court granting the writ has boon served on the debtor. 30 An. 84.
    4. The notice of judgment in executory proceedings, which must be served on the debtor three days previous to the actual seizure of the mortgaged property by the sheriff, must he signed and issued by the clerk of the court, and not by the sheriff. 30 An. 84.
    5. If such notice has been issued by tlic sheriff, and objection to it is formally made before any sale of the seized property has taken place, the objection will be sustained, and no rights or liens will accrue to the seizing creditor in virtue of the seizure. 30 An. 84.
    6. An adjudication of property under a judgment, subsequently annulled by a regular decree of court, conveys no title. 30 An. 84.
    7. When property within the parish of Orleans has been seized by the sheriff under a writ of fi. fa., and remains in his hands unsold until the return day of the writ, he must, in order thereafter to legally hold the property and thus maintain on it the lien acquired to the creditor by his seizure, make duereturn of the writ on its return day, and cause the clerk of the court to make and give to him a duly certified copy of the writ within twenty-four hours after the return of the original. Otherwise the sheriff will bo without authority thenceforth to maintain the seizure. 30 An. 84.
    8. An act of sale which contains the stipulation of a real price, no matter how fraudulent the sale may he, can not be disregarded and assailed collaterally like a simulated sale. 30 An. 84.

      9. Counter-letters can have no effect against creditors or bona fide purchasers. 30 An. 84.
    10. A. mortgage primarily without any consideration given to secure certain negotiable notes in the hands of any further folder, becomes a valid .mortgage in favor of any innocent third person who may acquire one of the notes before its maturity, and for value. 30 An. 84.
    11. A market house constructed on private property under contract with a municipal corporation, with the privilege of renting stalls and collecting dues during a specified period, with the consideration that the land, which is his property, and the improvements thereon, shall be conveyed to the city at the expiration of the term, becomes municipal property at the signing of the contract. State vs. Natal, No. 10,299. Supreme Court La., N. R., Nov. 18, 1889.

      F. Miehinard for Defendants and Appellees:
    1. A party who alleges that he has sold a property to one person, and that the title is in another, not his vendee, can not proceed by mandamus against the Register of Conveyances to erase the inscriptions of the titles of other parties to the same property, on the ground that they are mere clouds on his own title. He is without interest.
    2. In such a case mandamus will not issue when it appears that an investigation of the validity of existing titles must be had.
    3. Proof of the pendency of another proceeding, involving the validity of the-title, is a victorious answer to the application for mandamus.

    4. The inscription of a copy of a pretended counter-letter sixteen years after a. sale, and which, in this case, is a conditional undertaking to re-transfer the property, can have no effect in the absence of proof that the conditions have been complied with.
    5. The oath of the vendor that the copy is a correct “ copy of the original, which is mislaid and unavailable,” but which does not state that the original was-signed by the purchaser, is insufficient to give it effect.
    6. Parties holding different titles to the same property, derived from different-adjudications at different times, can not be called upon to vindicate their titles, in one and the same proceeding, in the absence of any allegation or suggestion of conspiracy or combination.
    7. A market house is not necessarily public property, and may be the subject ot private ownership.
    Application for Mandamus.

   The opinion of the court was delivered by

Bermudez, C. J.

This is an application for a mandamus, to compel the Recorder of Conveyances for the parish of Orleans to cancel from his boohs several inscriptions purporting to show ownership of certain real estate in this city, in various persons, made co-defendants.

The relator was met by an exception to the form of proceeding, to a want of cause of action, and eventually a denial of right.

From an adverse judgment this appeal lies.

In order to succeed, the relator ought to have established:

1. That, having a valid cause, he had presented his claim for cancellation to the Recorder of Conveyances.

2. That it was-the ministerial duty of that officer to have made the erasures, which he arbitrarily declined.

The grounds relied on by the relator are, substantially: That he was once the owner of a certain lot and buildings thereon, which long ago he had transferred to the city of New Orleans, who presently owns the same; that since said transfer certain parties have, under judgments rendered against him, seized it and became the adjudicatees; that one of them, or his representatives, is in possession of it and enjoys the revenues yielded by it; that the judicial sales made to said' parties are radical nullities, because no writ of any kind could have been lawfully levied on said property as his, while it stood publicly recorded in the name of the city, etc.

It is manifest that, from his own statement, the plaintiff has. no interest and discloses no cause of action, as he has ceased to be the owner and is vested with no mandate to champion the rights of the city, which, if they be trod upon, will have the privilege of revendípation.

Conceding, however, that he has some interest, it is evident that ;his action is palpably one in disguise, to , annul the titles standing in the name of others to real estate, and upon which the court -.necessarily would have to pass, for the inscriptions could not be .canceled unless the titles were previously pronounced bad.

The present proceeding is nothing but a rule against a public offi.cer to compel him to perform an alleged ministerial function.

Although it be true that, for the purpose of giving a clear title -to a purchaser of property at a judicial sale, a motion to show cause ■is permissible against the parties in whose favor mortgage inscriptions exist, the rule, which is not inflexible, does not apply to parties in whose favor inscriptions appear on the Conveyance books.

Jn relation to the summary proceeding for the cancellation of mortgage inscriptions, it has been well said that the object is to compel the creditor, claiming an apparent charge, to vindicate his right, but not to oblige him to litigate it in the action in which he is called to answer, if he have a right to proceed in another form, or before another forum. Bank vs. Delery, 2 An. 650, and other •cases.

The reason is manifest that, while the Oonrt may order the erasure, it does not necessarily have to pass' on the claim or mortgage rights of the party, for, usually, it relegates both to the proceeds — the validity of the same to be subsequently determined — while in cases of cancellation of inscriptions from the Conveyance books, no such reference can take place, as the Court, previous to orderingthe erasure, must have to pronounce the titles invalid.

It would be monstrous to coerce the parties to appear on mere notice, in a controversy which, in form, is summary, and in substance has all the emblems of a real action, to litigate their titles in that hasty way.

The proper practice would be to proceed against the parties regularly, and, if desirable, to connect the Recorder of Conveyances with the proceeding.

Engrafting ordinary suits, in which titles to real estate are involved, on a summary proceeding, against an officer to require the execution of a ministerial duty, is not allowable. In such cases the defendants who would be entitled to a trial by jury, could be debarred ■of it.

We are authorized to take judicial notice of our own decisions. Poland vs. Chicago R. R. Co., 42 An. p. — . Under thatassumption we can not ignore and know that it appears by proceedings . brought in this court by Raymond, upon which we have rendered an opinion and decree, that he has taken steps in the lower court to oust the Billgery heirs from this same property. State ex rel. Raymond vs. Judge, 41 An. 951.

The present proceeding against the Recorder of Conveyances appears to be a subterfuge, to accomplish indirectly, if possible, that which could only be done and has been undertaken directly.

Had the plaintiff already obtained final and executory judgments, contradictorily with such parties, recognizing his pretensions and decreeing the cancellation of the inscriptions in question, and had he presented the same to the Recorder of Conveyances, with a demand for erasure, and had the latter refused, without good cause, to expunge the inscription, the plaintiff would have had the right to complain and would have obtained redress; but he has not established any such grievance and, in the absence of such showing, or the like, he can not obtain the relief which he seeks.

Surely, the Recorder is not at fault and the objections set up by the parties really in interest were properly sustained.

Judgment affirmed.


author: Roché, J. Bermudez, O. J.

text:
    No. 10,513.
    David T. Weil vs. The Enterprise Ginnery and Manufacturing Company.—Third Opposition of C. W. G. Rareshide.
    A party who claims the ownership of a note secured by mortgage, and a subrogation to the mortgage, by means of a purchase, must be held to his pleadings and be denied the right of proving his right of subrogation by some other mode.
    Payment of 'a note secured by mortgage by one not bound for it, and who had no-interest in discharging it, will not subrogate him to the rights of the party to-whom he paid. The payment will extinguish the debt and the mortgage given to secure it; and the claim for reimbursement will constitute the party who paid an ordinary creditor of him for whose benefit the payment was made.
    After pleading title by purchase, a defendant can not be permitted, judgment going against him, to set up tit.e by subrogation, the less so, whore this theory was expressly repudiated originally.
    Although legal subrogation may be.claimed by on ordinary creditor who pays a creditor whose claim is preferable to his, by reason of his privileges or mortgages, such subrogation can not be allowed to one who does not assert it but rests his title on a purchase not shown.
    APPEAL from the Civil District Court, Parish of Orleans. King, J.

      W. 8. Benedict and Martin Voorhies for Plaintiff and Appellee:
    A creditor paying for another creditor whose claim is preferable to his by reason, of his mortgage, is entitled to a legal subrogation. C. C. 2161.
    ieing bound with others for the payment of the debt, he had an interest in discharging it.

      Omer Villeré for Third Opponent and Appellant:
    1. The payment of - a promissory note by or for the maker, or by one not bound for it, extinguishes the note and the mortgage securing its payment. O. C. 2134, 3411, 2161; 25 An. 438; 40 An. 351. ‘
    2. A legal subrogation exists in favor, not of all who pay a debt, but of those only who, being bound for, discharge it. 7 N. S. 702; 5 R. 204, 406 ; 4 An. 576; 2 NS. 500.
   The opinion of the court was delivered by

Roché, J.

The real contest in the case is between plaintiff and the third opponent, and it hinges upon the alleged extinction of a mortgage and vendor’s privilege originally securing two promissory notes on which plaintiff had sued out executory process on defendant’s immovable property.

The third opponent contends that the mortgage securing the note which he holds is the ranking encumbrance on the property seized by plaintiff, and he prays that executory process should issue on his note and mortgage, or in the alternative for payment by preference out of the proceeds of the sale provoked by plaintiff.

The present appeal is from a judgment dismissing the third opposition.

A preliminary statement, justified by the record, will perhaps simplify the issues- presented by the pleadings. It is clear that plaintiff and third opponent are both interposed persons; that Charles Hernandez is the real plaintiff; that A. J. Forstall is the real third opponent. At the time that these proceedings begun, the former was the president and the latter a member of the Board of Directors of the defendant, and neither desired to figure in proceedings hostile to the company. Hence, the interposition of third persons was resorted to for the purpose of judicially determining their respective claims and rights. From this statement, it follows that Weil is bound by every equity or reason which could affect Hernandez, and that Rareshide is to be affected by the same rule touching Forstall. Johnson vs. Weld, 8 An. 126.

It appears that two notes secured by mortgage and vendor’s privilege on defendant’s property were to mature as follows: One held by Edward Foley, as agent for Pierce Butler, for $1000, fell due on March 19, 1887, and the other, held by the Citizens’ Bank for collection, fell due on May 21, 1887.

By an understanding between Charles Hernandez, who was then president of the company, and the Board of Directors, and as the latter were without funds to meet payment, [it was agreed that Charles Hernandez should take up the notes on his personal account.

It then appears that on the 19th of March, 1887, on payment of $1070, representing the capital and interest of that note, to Edward Foley, the latter delivered possession of the same to Hernandez.

A similar transaction took place between Hernandez and the note clerk of the Citizens’ Bank, who by request delivered the note to the agent of Hernandez without stamping it “paid.” These are the notes on which plaintiff herein sued out executory process in October, 1888. While he held the notes, Hernandez had agreed with the company to postpone payment thereon for one year. Under those facts the pivotal question in the case is to determine whether Hernandez was subrogated to the mortgage rights of the original holders of the notes. Plaintiff’s contention is that the transactions herein recited operated a sale of the notes by the holders, and a purchase of the same by Hernandez, while third opponent contends, that it was not a purchase, but a payment which resulted in the destruction of the mortgage. There is no doubt that the intention of Hernandez was to purchase the notes and to keep alive as his guarantee the mortgage which secured them. But did he accomplish that object? Mr. Toby, who held one of the notes as agent, does not remember the details of the transaction; he only remembers that the note was past due and that by request he brought it to the office of Mr. Hernandez, who handed him a check and to whom he handed the note; but he remembers that he executed no subrogation in connection with the note.

The note clerk of the Citizens’ Bank is positive in his testimony that he did not sell the note, which he had no authority to do, and that while he complied with the request not to stamp it “paid,” he is certain that he simply collected payment of the note and that he did not sell it.

In his answer to the third opposition plaintiff rests his ownership of the notes on a transfer of the same to Hernandez in due course of business; hence he did not set up any right of subrogation under the provisions of paragraph 2 of Art. 2160 or of Art. 2161 of the Civil Code.

It therefore follows that his attempt to prove a subx’ogation by the act of the debtor, through resolutions of the Board of Directors, should not have been countenanced, and that all proffered evidence for that purpose should have been rejected on the objections urged by third opponent.

Under the issue as tendered by plaintiff himself, the restricted and sole question presented for solution was a purchase vel non. Nicholls vs. Creditors, 9 Rob. 476.

The alleged recognition by the company of the mortgage rights of Hernandez as a result of his “taking up” the notes might have evidenced a new contract between Hernandez, as a creditor, and the company, as his debtor, but it could not be invoked as proof to characterize the transaction between himself and the late holders of the notes. O. O. 2160, par. 2.

If, after obtaining possession of the note held by Toby, under the circumstances precisely as they are herein detailed, Hernandez had failed or neglected to obtain the note held by the Citizens’ Bank, what would have been his position in a contest over the proceeds with the bank, in the event that the same had not been sufficient to pay both notes in full? It is too clear for argument, at' this stage of our jurisprudence, that he would have had no standing as a mortgage creditor to contest the right of the bank to be paid by preference. If, by his acquisition he had obtained no subrogation of mortgage rights toward a contemporary mortgage, he could acquire none quoad a junior mortgage.

His position is that described in the case of Nicholls vs. His Creditors, 9 Rob. 476, in which the syllabus reads: “Payment of a note secured by mortgage by one not bound for it, and who had no interest in discharging it, will not subrogate him to the rights of the party to whom he paid. The payment will extinguish the debt and the mortgage given to secure it; and the claim for reimbursement will constitute the party who paid, an ordinary creditor of him for whose benefit the payment was made.” See also Fort vs. Union Bank, 11 An. 708; Hoyle vs. Cazabat, 25 An. 438; Seixas vs. Gonsoulin, 40 An. 357.

Our conclusion is therefore that the mortgage which originally secured the notes sued on by plaintiff was completely extinguished on the 21st of May, 1887; and that third opponent’s, -then the junior, mortgage is now the ranking mortgage affecting the property of the defendant company.

It is therefore ordered, adjudged and decreed that the judgment on appeal, in so far as it recognizes plaintiff’s alleged mortgage, be annulled, avoided and reversed; and it is now ordered that said mortgage be declared extinct, and that the executory process predicated thereon be annulled and set aside, with recognition of the rights of third opponent to proceed in the enforcement of his mortgage. And it is further ordered that said judgment be affirmed in other respects, at the costs of plaintiff and appellee in both courts.

On Application for Rehearing.

Bermudez, O. J.

The ground upon which Hernandez, the real plaintiff, claimed to-be paid as a privilege and mortgage creditor, was that he had purchased the two notes: that of $1000 from the Oanal Bank, and that of $800 from the Citizens’ Bank.

He contended that, as he had been authorized by the Board of Directors of the defendant company, and, as he had invested his own funds in taking up the notes, he had acquired them.

This court held, that there had been no purchase; that although Hernandez may have intended to buy, neither of the banks intended to sell, and so, there was no transfer-or cession by sale.

In the application for a rehearing, it is now claimed by counsel for Hernandez, that, as he was a creditor of the company and paid with his money, he was legally subrogated.

This is an inadmissible shifting of positions.

In his original brief, counsel for Hernandez distinctly said that “the doctrine of payment with subrogation does not obtain herein, for no such intent is manifest from the evidence; but on the contrary, a purchase as a ‘personal investment’ by Hernandez, with consent of defendant, and so ratified.” Page 6, No. 6.

How can Hernandez, after thus peremptorily repudiating the theory of no subrogation opposed to him and proclaiming that his rights flowed from a purchase, made with the debtor’s consent, now claim that he was a creditor and because such creditor, was subrogated.

Had Hernandez originally claimed and shown that he was a creditor before the acquisition by him of the two notes or of the last one, quite a different case would have been presented, for it is distinctly provided by law, that “subrogation takes place of right for the benefit of him who being himself a creditor pays another creditor whose claim is preferable to his by reason of his privileges and mortgages.” R. O. O. 2161, Sec. 1.

This is so true that courts and commentators agree that such subrogation takes place even in favor of an ordinary creditor. O. N. 1551; Gilbert, p. 453, No. 3.

The authorities there compiled are to the effect, indeed, that the benefit of the legal subrogation established in favor of him who, being himself a creditor, pays another creditor, who is preferable to him, by reason of his privileges and mortgages, can be claimed, as well as by a simple ordinary creditor (ehirographaire) as by a privilege or mortgage creditor. See besides Marcadé, Vol. 2, p. 719; Baudry Lacantinerie, Vol. 2, p. 733: Laurent, Vol. 18. p. 98; Larrombiere, Vol. 3, p. 304.

If Hernandez could have thus claimed and shown, he has not done it.

Litigants can not be permitted thus to play fast and loose.

Rehearing refused.


author: Eenner, J.

text:
    No. 10,491.
    Succession of Camille E. Girardey.
    Liens, privileges and mortgages for taxes are excepted from tlie general rule that judicial sales have effect to cancel mortgages and privileges and to refer them for satisfaction to the proceeds of sale.
    Such privileges and mortgages are governed by special legislation in reference thereto, under which they adhere to the property until paid or extinguished in some other legal mode, notwithstanding any sale.
    APPEAL from the Civil District Court, Parish of Orleans. King, J.

      B. R. Forman for Plaintiff and Appellant:
    1. The judgment for the drainage assessments, rendered in January, 1875, in 27 An. 20, is prescribed by ten years (C. C. 3547) and the inscription thereof should be canceled in the absence of proof of revival and reinscription.
    2. This drainage assessment can no longer be collected and should be erased as an illegal incumbrance on property. Davidson vs. New Orleans, 34 An. 170; Succession Patrick Irwin, 33 An. 64.
    3. All money judgments are prescribed in ten years (0. C. 3547) and their inscription as judicial mortgages is perempted (C. C. 3369).
    4. In sales under execution, judicial sales, probate sales under order of the court to pay debts, and in insolvencies, the sale cancels the mortgages and privileges, and the debts so secured are referred to the proceeds and the court can, on rule to show cause, order the cancellation of the inscriptions. Larthet vs. Hogan, 1 An. 330; Aieard vs. Daly, 7 An. 612; McNeil vs. Ilauck, 24 An. 828;aBlair. vs. Taylor, 25 An. 144; Merrick vs. MeCausland, 24 An. 256; Canal Bank vs. Recorder, 27 An. 291; Dutrey vs. Laguens, 28 An. 753; Life Association vs. Hall, 33 An. 53; Bayhi vs. Bayhi, 35 An. 528; Beltran vs. Gauthreaux, 38 An. 107.
    5. “ The property on which were assessed the taxes has been sold under the orders or the Second District Court, and it is clear that the privilege for taxes was transferred from it to the proceeds of sale.” Succession Zachary, 30 An. 1260.
    “ In this instance the property sold (at a probate sale) was burdened with a privilege for taxes in question; when the sale took place this privilege attached to the proceeds.” Succession Dupuy, 33 An. 260.

      G. Each specific piece of property is only affected by the privilege for taxes on it and for no other taxes; and if the inscription does not identify the property, there is no privilege and it should be canceled. All taxes and tax privileges are prescribed in three years. Act 18, 1876, p. 11; Act 96, 1877,-p. 142, Sec. 86; Act 77, 1880, p. 95, Sec. 24; Act 96, 1882, p. 130, Sec. 34; Act 98, 1886, p. 145, See. 34; Act 85, 1888, p. 124, Sec. 33.

      W. B. Sommerville, Assistant City Attorney, and Wynne Rogers, Attorney, for Tax Collector, contra:

    X/iens and privileges in favor of the State and city for taxes, and recorded in the mortgage office, are not transferable to the proceeds of sale. Morris vs. Lalaurie, 1 So. R. 659; 39 An. 47.
   The opinion of the court was delivered by

Eenner, J.

The property of this succession having been duly sold at probate sale to pay debts, a certificate of mortgages was obtained which exhibited sundry conventional, legal and judicial mortgages standing against the property, besides numerous tax liens and privileges in favor of the State and city.

Thereupon the administratrix took a rule against two of the private mortgage creditors, the City of New Orleans, the City Comptroller, and the State tax collectors for the several districts of the city, requiring them to “show cause why all the inscriptions reported in said certificate of the Recorder of Mortgages should not be erased and canceled, and why the said tax collectors and City Comptroller should not erase and cancel from their respective books all claims for State and city taxes as claiming to bear upon the property described, and their respective claims be referred to the proceeds, and said officers be ordered to give their certificates to be annexed to the acts of sale, showing that said claims have been canceled and erased.”

Under this prayer we consider nothing at issue in the proceeding, as between the succession and the State and city, except the legal question whether or not a probate sale of property to pay debts has effect to transfer tax liens and privileges from the property to the proceeds of sale. Counsel for plaintiff in rule, in his brief, states-that the relief sought was “to show cause why all the inscriptions should not be 'erased and canceled and their respective claims be referred to the proceeds.” We shall, therefore, decline to consider the questions suggested in other parts of the rule and of the briefs, attacking the validity of the tax inscriptions as affected by prescription and other defences. The question here is not whether the claims are valid, but whether they are to be removed from the property and referred to the proceeds. The judge a quo evidently took this view of the rule, because he discharged it absolutely, although sundry of the tax inscriptions are admitted by all parties to be prescribed, and although it is elementary and not disputed by any one that the sale had effect, when duly executed by payment of the price, to transfer the private mortgages and privileges to the proceeds for satisfaction.

We shall, therefore, confine our discussion to the question above indicated, viz: whether or not the judicial sale of property has effect to discharge it from tax liens and privileges, to refer them to the proceeds of sale and to pass the title to the purchaser disencumbered of such liens.

Whatever may be said of the wisdom and .policy of such legislation, the revenue statutes of the State leave no room for doubt that property subject to tax liens and privileges can not be disencumbered thereof, otherwise than by payment of the taxes or by their extin guishment in some other legal mode, and that no sale can have effect to relieve the property sold therefrom and to refer them for satisfaction to the proceeds.

Sec. 2519 of the Revised Statutes, reiterated expressly in the general revenue laws subsequently passed, provides: “Hereafter, neither recorders, sheriffs notaries or other persons, authorized to convey real estate by public act, shall pass or execute any act for the sale, transfer or exchange of any real estate, unless the State, parish and municipal taxes due on the same be first paid, to be shown by the tax collector’s receipt or certificate to that purpose.”

Such provisions are obviously inconsistent with the claim advanced by the plaintiff in rule.

. So far from transferring the tax liens from the property to the proceeds of sale, the law holds the title to the property in statu quo and prohibits its passing to the purchaser at any sale, public or private, until the taxes due thereon are first paid. We need not discuss the validity or effect of Act No. 88 of 1888, amending Sec. 2519 R. S., because it perpetuates the same principle in a modified form.

Several cases are quoted in which the right of the State and city, consenting thereto, to look to the proceeds of sale for satisfaction of their taxes, has been recognized. Succession) of Zacharie, 80 An. 1260; succession of Dupuy, 33 An. 260.

But these cases obviously rest on the consent of the taxing authorities and the absence of contest.

When the question was squarely presented, in absence of such consent, we very recently held that the tax liens and privileges adhered to the property notwithstanding the judicial sale and were not transferred to the proceeds. Morris vs. Lalaurie, 39 An.

Plaintiff’s right to test the validity and existence of the taxes and the inscriptions thereof, in a proper proceeding, is reserved, and with this reservation.

Judgment affirmed.