text:
    No. 7013.
    Mrs. A. R. Richardson vs. Moses Mann.
    Where the pledgeo of a mortgage note, in whoso hands it has been placed to secure-a debt duo him by the pledgor, sells the property mortgaged to secure the note for a sum less thau the amount of the note, and immediately resells it for a larger sum than that of the note, he becomes liable to the pledgor, not for the price at which the property was resold, but merely for the amount of the note.
    APPEAL from the Seventh Judicial District Court, parish of WestFeliciana. Yoist, J.

      Kennard, Howe & Prentiss and W. W. Lealce for plaintiff and appellee.

      Wiclcliffe & Fisher for defendant and appellant.
   The opinion of the court was delivered on the original hearing by Maer, J., and on the rehearing by Spencer, J.

Marr, J.

Mrs. Richardson pledged to Mann, Fischer & Co., as collateral, two notes secured by mortgage on the “Island Plantation.” On the 4th February, 1875, it was agreed between her and Moses Mann, of Mann, Fischer & Co., then in liquidation, that Mann should “ proceed in a summary manner, by the 25th January, 1876, to collect the notes held as collateral, or, if he should not do so, he obligates himself to pay to Mrs. Richardson the difference between the sum total of her indebtedness to Mann, Fischer & Co. and to Mann individually and the notes held as collateral, it being optional with Mann to proceed to the summary collection before the 25th January,' 1876, should he so desire.”’

On the 24th January, 1876, Mann, Fischer & Co. obtained an order of seizure and sale on the mortgage notes ; but their attorney apprehended that the evidence on which that order was granted was not sufficient, because he had offered a copy of a copy of the mortgage; and, as soon as he procured from New Orleans a properly authenticated copy of the original, he submitted that, with the other authentic evidence, and the judge ran his pen through the figure “24,” in the order, and wrote in the line above •“ thirty-first.”

The sale-day in the parish of West Feliciana was the first Saturday of each month. The first Saturday in February was the fifth day of the month; and, of course, there was not time to advertise for that day: •the first Saturday in March was the fourth day of that month, which was a legal holiday, a dies non, by express statute : so that the sale could mot have been made on that day. Act of 1871, p. 61. The sale was made on the first Saturday, which was the first day of April.

This suit was brought on the 21th of February, 1876, to recover of Mann the amount of the two mortgage notes, $5000, with eight per cent interest from January 25,1871, less sundry credits set forth in the petition, on the ground that Mann had “failed to proceed to the summary -collection of said mortgage notes on or before the 25th January, 1876, ■according to said contract, and refuses to pay petitioner the balance.of her notes as he agreed and obligated himself to do, though amicably requested, and having been put in default.”

The answer sets out the facts, the obtaining of the order of seizure and sale on the 21th January, that no legal sale could have been made prior to the first Saturday in April, when it was made: that plaintiff suffered no damage or injury from the fact that the suit was instituted on -the 31st instead of the 25th January; that defendant’s counsel had doubt as to the sufficiency of the evidence on which the order of 21th January was granted, and for that reason sent to New Orleans for additional evidence, on which the date of the order was changed to 31st ■January; that the sale could not have taken place earlier than the 1st April on an order obtained at any time in January ; and that he has carried out strictly the spirit and intent of the contract.

In November an amended petition was filed in which it was charged that on the 1st April the property was adjudicated to Moses Mann and others for $8200 ; that at the sale Mann, Fischer and others, and Vincent D. Walsh were bidding for the property, when Mann persuaded and inRuenced Walsh not to bid, and as soon as the property was adjudicated to Mann and others they sold it, before leaving the place, under their agreement, to Walsh for $10,000.

That the illegal acts of Mann and others prevented fair competition -and sale as contemplated by law, through which Mann expected to defraud petitioner of one half the difference between his purchase, $8200, and the sale to Walsh for $10,000, amounting to $900 05.

The prayer is for judgment for the entire amount, as set forth in -the original petition.

Defendant answered by denial of each and’ every allegation in the amended petition contained. The judgment was in favor of plaintiff’s •transferees, McGehee, Snowden & Violet, for $5000, with interest, subject to sundry credits, as prayed for in the original petition ; and defendant appealed. Plaintiff, in answer, prays for damages for a frivolous appeal.

We agree with the district judge that Mann complied with his contract to proceed in a summary manner by the 25th January, 1876. He had the option to proceed or not before that time; he obligated himself to proceed by that time. He actually commenced the proceeding, by obtaining the judge’s order on the 21th January. If he had prosecuted the sale under that order, with all possible dispatch, it could not have been made before the first Saturday in April.

It appears from the testimony of Walsh that August Fischer, representing Mann, Fischer & Co., and Willis W. Forrester, who held one of the mortgage notes, concurrent with those pledged by Mrs. Richardson to Mann, Fischer & Co., were bidding on the property against Walsh. Walsh had made one or more bids, and had bid more than he intended when he left home. He asked the sheriff to suspend until he could have a talk with Fischer. Does not remember whether or not Mann was present at this conversation. He did not bid again on the property. Did not bid on the machinery, which was sold separately. After the sale, and before leaving the place, “I was induced, by the advice of Gov. Wickliffe, to buy the property. The inducements that persuaded me to purchase was the deferred payments, enabling me to meet them with the crops raised on the place. I purchased the property at $10,000, one half cash, and balance in one and two years.”

On cross-examination he says he considers $10,000 for the place, including the machinery, on the terms, half cash, balance in one and two years, a more reasonable price than his highest cash bid, which was between $6500 and $7000, for the place alone, without the machinery.

“Neither Moses Mann, nor August Fischer, nor Willis Forrester, nor Max Fifecher, nor any other person persuaded or induced witness to cease bidding on the place. Witness ceased bidding because he thought that Mr. August Fischer would give more for the property than witness would. Witness came to that conclusion from the conversation he had with Mr. Fischer. * * * * * * '* * * *

“Had no understanding with Mann, Max and August Fischer and Forrester in regard to bidding on the Island plantation, except that he told August Fischer that he would not bid any more than he had already bid ; that he had already bid more than ho expected, when he found out that the machinery would be sold separately.”

The testimony fails to show any illegal act, any thing that was in any respect improper on the part of Walsh, or the other parties bidding on the property. It is evident that he was influenced mainly by the advice of Gov. Wickliffe and Louis Sterling, old friends of his, as he states, to make the purchase; and he considered the terms at which he purchased better than his highest bid.

The district judge makes no reference in his reasons for judgment to the alleged illegal acts of Mann, with intent to defraud Mrs. Richards m ; nor do we think it necessary to sny more than that it is without support in the testimony adduced. The decision in favor of plaintiff is upon the sole ground that, in the transaction with Walsh, “ Mann was acting as the agent of Mrs. Richardson, and she is entitled to the benefit of said sale at §10,000.”

The legal title to the two notes pledged to Mann, Eischer & Co. was in them. They had the option to allow Mrs. Richardson their face value and interest, or to proceed on them by the 25th January, 1876. They elected to proceed, and they commenced the proceeding on the 24th of January. They were no more the agents of Mrs. Richardson, in provoking the sale of the mortgaged property, than they were of Willis Forrester, who held one of the series of notes secured by the same mortgage. Their object was to collect the debt due them by. Mrs. Richardson ; and their only obligation to her was to collect and give her tho benefit of her share and portion of the proceeds of the sale. If the amount thus realized on the two notes should exceed the amount of her indebtedness, for which they were pledged, she would be entitled to the excess. They did not buy the property as agents for Mrs. Richardson, nor did they soli it to Walsh as her agents. They purchased in their own right., as the highest bid iers ; and their obligation was to account for the proceeds. Their bid was §8200. Tho costs and taxes to be deducted were §935 70, leaving for distribution §7264 SO. Out of this the sheriff retained, by order of court, §500, to answer the demands of Rudman and Wagner, who claimed privileges on the machinery and implements, leaving for actual distribution to tho two mortgage creditors §6764 30.

The amount of Mrs. Richardson’s two notes was - - §5866 67

And the amouut due Forrester was.....- - 2933 33

Total mortgage debt --------- §8800 00

If the $500 retained by the sheriff should come into this distribution, Mrs. Richardson’s portion would be just double that of Forrester, §4S42 87. Or, if the §500 be deducted, her share would be §4509 54.

The amount due by Mrs. Richardson to Mann, Fischer & Go. up to the date of the sale was §4844 29. If her share of the proceeds be fixed at §4S42 87, the balance against her would be §1 42. If it be fixed at §4509 54, she would owe Mann, Fischer & O >. §134 75. In either case, Mrs. Richardson has.no just claim or cause of action against defendant; and she had none at the timo the suit was brought.

The judgment of the district court is therefore annulled, avoided, and reversed; and it is now ordered, adjudged, and decreed that the demand of plaintiff be rejected, and her suit be dismissed with costs in this court and in the district court.

On Rehearing,

Spencer, J.

The questions presented and to be determined by us on this rehearing we will consider seriatim.

First — Is the pledgee oí a note the agent and mandatary of the owner, and in case he buys property mortgaged to secure the note for a less sum than the amount of the note, and immediately resells it for a greater sum than the note, what is the measure of his responsibility to the owner ? Is he bound to account only for the price at which he purchases; or at the price at which he sells; or is he liable only for the amount of the note ?

Although for the purposes of collection the pledgee is considered to have the legal title of the note pledged, still he is not really the owner of it. Art. 3166 C. C. declares that the debtor “ remains proprietor of the pledge, which is in the hands of the creditor only as a deposit to secure his privilege on it.” This is made manitest also by the undoubted rule that when there is no fault or negligence in the pledgee the loss of the pledge, or deterioration of its value, by insolvency, etc., must be borne by the pledgor. 1 An. 344.

The obligations of a pledgee are in substance very similar to those of mandataries and agents. In 17 Barbour, 492, the Supreme Court of New York say that “ a creditor holds collateral securities as the agent and trustee of his debtor.” In Moses vs. Murgatroyd, 1 John. Ch. 119, Chancellor Kent said: “These collateral securities are in the nature of trusts, created for the better protection of the debt.” In 1 An. 344, our own court assimilate the responsibilities of pledgees of notes to those of agents, and a similar doctrine is held in “ King vs. Harman,” 6 La. 607.

We think, therefore, that Mann, in the enforcement and collection of the mortgage notes placed in his hands as collaterals, was the agent or trustee of Mrs. Richardson, and is not permitted to speculate, to her prejudice, upon the thing pledged.

Mr. Story on “ Agency,” sec. 207, says: “Indeed, this doctrine is so firmly established upon principles of public policy that no agent will be permitted to take * * any profits incidentally obtained in the execution of his duty, even if it be sanctioned by usage. Such a usage has been severely stigmatized as a usage of fraud and plunder.”

Perry on Trusts, $ 427, says: “ Trustees hold a position of trust and confilence. The legal title of the trust property is in them, and generally its whole management and control is in their hands. At the same time the beneficiaries of the trust may be women or children, or persons incompetent to protect their own interests. For these reasons, to protect the weak and helpless on 'the one hand, and to prevent trustees ■from using their position and influence for their own gain, and to prevent them from hazarding the trust property upon what they may think ■to be profitable speculations on the other, they are not allowed to make any profit from their office. They can not use the trust property, nor "their relations to it, for their own personal advantage. All the power -and influence which the possession of the trust fund gives must be used for the advantage and profit of the beneficial owners, and hot for the personal gain and emolument of the trustee. No other rule would be ¡safe; nor would it be possible for courts to apply any other rule as between trustee and cestui que trust. * * * * *

A trustee, executor, or assignee can not buy up a debt or incumbrance to which the trust estate is liable for less than is actually due "thereon and make a profit to himself: but such purchase inures for the benefit of the trust estate, and the creditors, legatees, and cestui que trust shall have all the advantages of such purchase. * * *

“ So, if a trustee buys the trust property at private sale or public ¡auction, he takes it subject to the right of the cestui que trust to have ■the sale set aside or to claim all the benefits and profits of the sale for himself. * ****** *

“By this rule, trustees may be liable to great losses, while they can receive no profit; and the rule is made thus stringent that trustees may ■not be tempted from selfish motives to embark the trust fund upon the •chances of trade and speculation. If a trustee charge a bonus in his ¡account for his skill and services in conducting the business of the trust, it will be set aside. * * * * * *

“All persons who stand in a fiduciary relation to others must ¡account for all the profits made upon moneys in their hands by reason of such relation. * * * * * * * *

“Agents, guardians, directors of corporations, officers of municipal •corporations, and all oilier pei'sons clothed with a fiduciary character, are ¡subject to this rule.”

In his work on Bailments Mr. Story says, § 343 :

“Another duty of the pawnee at the common law is to render a clue account of all the income, profits, and advantages derived by him from "the pledge in all cases where such an account is within the scope of the bailment. If, for instance, the pawn is a slave, the profits of his labor ¡are to be accounted for. If the pawn consists of cows, horses, or other •cattle, the profits of their labor are also to be accounted for, if within the contemplation of the parties. The Boman and foreign law seem, in ¡all cases of this sort, to imply an obligation to account, from the very mature of such a pledge. In rendering an account of the profits, the pawnee is at liberty to charge all the necessary costs and expenses ■to which he has been put, and to deduct them from the income or profits. If he has sold the pledge he is bound to account for the proceeds, and to pay over to the pawner the surplus beyond his debt or other demand, and the necessary expenses and charges. Pothier thinks that the duty of the pawnee goes further; and that ho is bound to account for all the profits and income which he might have received from the pledge but for his own negligence.”

See, also, Gibson vs. Hunter, 14 La. 124.

But in the case before us the total mortgage debt bearing on the-property amounted to only $8800, of which $5866 67 was held by Mrs. Richardson, and $2933 33 by Willis Forrester. The property was bought in by four persons jointly, and, so far as appears, equally, to wit: Moses Mann, Max Fischer, August Fischer, and Willis Forrester; and these four made a joint deed without assignation of parts to Walsh for ten-thousand dollars, one half cash, and the balance at one and two years with eight per cent interest from date, and attorney’s fees, and secured by mortgage and vendor’s lien. We think this equivalent to a cash sale-at $10,000. But we see no reason why we should allow Mrs. Richardson more than the amount of her notes. We do not think the agent’s responsibility should go beyond that. If he realizes the full amount of the notes, there is no speculation at her expense or to her loss. We think that under the circumstances of this case, when the property was bought in for $8200 and on same day and at same place resold for ten thousand dollars cash, or its equivalent, the agent should not be permitted to profit by the resale, except to the extent that there is excess over the amount due the pledger. But we can not require the agent to pay more than he realized. As we have seen, Mann was only one of four purchasers, and realized therefore by the resale only one fourth of $1800’ as profit — say $450. This suit is against Mann only, and we can not hold him responsible for the profits made by his copurchasers, who are no parties to this suit, and, for aught that appears, in nowise the agents or trustees of Mrs. Richardson, or in any wise accountable to her for any profits realized by them. She declares upon her contract with Mann only, of date February 4,1875. It is that which she seeks to enforce in her orioinal petition ; while in the amended petition she simply alleges a-conspiracy to prevent bidding at the sale, and consequent injury. She does not ask any where specifically the relief sought on this rehearing;but as the evidence showing the relations between herself and Mann is before us without objection, and there is a prayer fora judgment of $1500 and “for general relief,” we think we can allow her a judgment for the amount realized by Mann as profits on resale. As we have seen, Mann realized a profit of $450. Giving Mrs. Richardson the benefit of the $500 retained by the sheriff, she would still owe defendant $1 42 after crediting her with her pro rata of the $8200, less costs.

Her pro rata was, after deducting costs, - - - - $4842 87

Her debt to defendant was - -- -- -- -- 4844 29

Leaving balance due by her.......$ 142

Which being deducted from - -- -- -- -- 450 00

Leaves due by Mann - -- -- -- -- -$ 448 58

But should the $500 retained by. the sheriff on oppositions or any part thereof be decreed to go to the claimants (opponents), then her pro^ rata, to wit, two thirds of these $500, or of such part thereof as may be decreed to said opponents, must be deducted from the above sum of $448 58.

It is therefore ordered and decreed that our former decree be set aside, and it is now ordered that plaintiff, Mrs. Richardson, (for use of' McGehee, Snowden & Yiolet, subrogees,) do recover of Moses Mann-the sum of $448 58, with legal interest from April 3,1876, till paid, subject to a credit of same date for two thirds of such sum as shall be-awarded out of the $500 retained as aforesaid to said opponents.

It is further ordered that this cause be remanded, for the purpose solely of ascertaining the amount of said credit, and that this judgment be not executed so far as it would be affected by said credit until the saméis ascertained.

It is further ordered that plaintiff and appellee pay costs of this-appeal, and defendant those of the court below.


source: Caselaw Access Project

author: Egan, J. Spencer, J. Egan, J.

license: Public Domain

text:
    No. 6530.
    Augustus F. Hickman vs. Gustave J. Freret et al.
    In order to make a valid appraisement of the undivided interest of an heir in a succession -which has been seized under a fi. fa., it is proper to appraise, not each separate effect of tho succession, and then estimate the value of his share-of such effect, but to appraise his interest as a single, undivided thing, and estimate its value, after deducting the debts and charges of the succession.
    APPEAL from the Fourth District Court, pafjish of Orleans. Campbell,. J.

      Julien A. Seghers for plaintiff and appellant.

      McEnery, Ellis & Ellis for defendants and appellee.
   The opinion of the court on the original hearing was delivered by Egan, J., and on the rehearing by Spencer, J.

Egan, J.

The only facts material to the issues in this proceeding-are the following: The plaintiff, a judgment creditor of the defendants,, sued out a writ of fieri facias under which the sheriff seized and adverUsed for sale — -to use the language of his return and of the notice of ¡seizure and advertisement, all of which are accordant — “ All the right, title, and interest of Gustave Joseph Freret and William Peter Freret as heirs at law of the succession of their late father, James P. Freret; their ■said interest in said succession consisting of one undivided twenty-sixth ■piart to each of them in and to the property hereinafter described, to witthen follows the specific description in detail of three certain portions of ground in the city of New Orleans, numbered from one to three; •fourth, a certain mortgage note; and, fifth, sundry bills receivable. The property was separately appraised ; No. 1 at-$1500 ; No. 2 at $1800 ; No. 3 at $8000; No. 4 at $250, and No. 5 at $25 cash, making the appraisement of the undivided interest of the defendants in the whole property thus seized, appraised, and advertised for sale amount to the sum of $3175. At the sale the entire interest of both defendants, as thus described, was bid in by J. H. Lagroue, for the sum of S2125, a few dollars more than two thirds of the appraisement. Lagroue not having ■complied with the terms of sale, and the sheriff not having completed the adjudication by making title, the present rule was taken by the plaintiff to compel them to do so. The mode of seizure adopted was, to ■say the least of it, very unusual. Although the sheriff professed to ■seize all the right, title, and interest of the heirs in the succession, he describes that interest in all the proceedings, as we have seen, to be one -undivided twenty-sixth part to each of them, in and to specific property; and thereupon the sheriff proceeded to have each piece of property, and -the interest of the defendant heirs in each piece of property, separately ■appraised, just as though they held it in indivisión by any other right or title, and not merely as succession rights subject to the settlement of the succession. It is not true to say of an heir that he is interested as •such in any proportion -in any or all of the properly of the succession. If he be heir, he is interested in proportion to the number of heirs in the ¡succession as an entirety, subject to its settlement and the payment of its debts. It is that interest, and that only, which as an incorporeal right is allowed to be seized and sold under article 647 of the Code of Practice. See Noble vs. Nettles, 3 R. 152; Mayo vs. Stroud, 12 R. 105; Diamond vs. Courtney, 12 Annual, 251. In the present case the appraisement which regulated the sale was not that of the right of the heirs, but of specific interests in specific property, appraised for the purposes of ■the sheriff’s sale separately, and as though the interest of these heirs were as well ascertained and as definitely fixed, with regard to each piece of property appraised, as'if it were held by them as joint owners •with other co-proprietors. While it is as necessary, then, to appraise for •the purposes of forced sale the incorporeal thing, the right or interest ■of an heir in a succession, and while for that purpose it is proper to take into account the property of which the succession consists, it is not that property or any specific or proportionate interest in it which is subject to seizure and to sale, and consequently to appraisement with that view ; but it is simply the right or interest of the heir in the entirety, the succession, and subject to its settlement and the payment of its debts and charges, which should be appraised, as it alone can be seized or sold. This was not done in the present case, and without it the sale was not lawful, and can not be enforced; practically, the purchaser was made by this appraisement to pay for what he did not get, and might never get. That it was not the right of the heir which was appraised, is manifest, as in order to do that it was necessary to take into account not merely the value of the succession property, but also the amount of the debts and charges to which it was subject.

The court below discharged the rule at .the cost of the plaintiff.

The judgment is correct, and is affirmed.

On Rehearing.

Spencer, J.

The right of an heir in a succession is an incorporeal thing. It is an entity, a unit. It does not consist in specific interests in specific things; for when determined and ascertained by the liquidation and settlement of the succession, such things may form or constitute no part of what the right embraces. It is not true to say that the heir owns any particular part of any particular property composing the succession. You can not seize or sell'his interest in any specific thing belonging to the succession, and, therefore, you can not appraise specific and particular things in order to a sale of his hereditary right. His right of succession is in some sort indivisible. No one can seize a fraction of it. It is a single right and not an aggregation of many rights. It must be seized, appraised, and sold as a unit. For the purpose of approximating its value, the appraisers would of necessity take into consideration the value of the active mass of the succession, and, also, the passives, or debts and obligations thereof. They would thus ascertain the probable net value of the succession in globo, and fix the value, of the heir’s succession right by taking the aliquot part represented by him as heir.

As stated in our former opinion, the appraisement in this case seems-to have been made by separately valuing the heir’s interest in each of several pieces of property said to compose the succession. It is true that the appraisers then put the value of the “total undivided interest”' of the defendant heirs at a round sum of 13175. Perhaps it is the mode of reaching the conclusion as .to value which is irregular, rather than the conclusion itself, since there is a round sum declared by the appraisers to be the value of the heir’s right under seizure.

But if the seizure and appraisement be regular, under the mortgage "certificate there could be no adjudication at the price said to have been 'bid by Lagroue, $2125. The recorder of mortgages certifies as existing ■on the property seized the following mortgages “in the names of Gustave J. Freret and William P. Freret,” to wit: “ The mortgage in favor of "Theo. Lercom, act of O. de Armas, notary, dated October 26, 1870, to secure the sum of $6000, interests and costs, etc., recorded October 28, 1870.” Then another mortgage before Cuvillier, notary, in favor of Chas. Xafitte, for $8500, recorded May 4, 1872. There are, also, other antecedent mortgages and privileges certified to exist. These mortgages -are certified as having been granted not by the ancestor, as suggested by plaintiff’s counsel, but by the heirs, G. J. and rV. P. Freret.

Plaintiff’s suit, in which he attached the property in question, was not commenced till November, 1875,and his judgment and judicial mortgage were only registered November 29, 1875.

It appears, therefore, that there were operating and uncanceled upon this property two antecedent special mortgages granted by the seized debtors, and amounting to $14,500 principal. No adjudication could be made on a bid less than the amount of these prior special mortgages. C. P.

It is therefore ordered that our former decree remain undisturbed,

CONODBRING OPINION.

Egan, J.

I adhere to the views expressed in the original opinion in this case. I do not regard the manner of seizure and of appraisement adopted in this case as merely irregular. In my opinion, they were both "illegal, for the reasons stated in the original opinion, and under the facts therein stated, which are copied from the record. I concur in so much of the opinion now read as holds the sale in question bad, for the additional reason stated, that, even assuming the validity of the seizure, the price bid was less than the special mortgages resting upon the property. In preparing the first draft of the original opinion I had taken that view, also. After consultation it was omitted as unnecessary. I still adhere to that view of the case. The sheriff states that he seized and offered for sale the entire interest of the heirs in the succession, which interest he states is one undivided twenty-sixth interest to each of them (not in the succession) but in each of the following pieces of property — describing them as stated in the original opinion. This, it is admitted, was not true — an admission which is conclusive of the question that the heirs had not and could not have any such interest in the particular property which the sheriff professed to seize, appraise, and sell.

I concur in the decree affirming our former decree.


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

text:
    Nos. 6957 and 7052.
    Succession of J. C. Patrick. Opposition of Carroll, Executrix.
    'Tho law oí this State authorizing the revival of judgments was not intended to provide any different mode of interrupting prescription of judgments from those applicable to other forms of debt, but was only intended to prevent the prescripts x of judgment debts, and continue them in force for ten years from the dato of the judgment of revival. The prescription of a debt evidenced by a judgment, can be interrupted in the same modes as the prescription of debts evidenced in any other way, except, that the acknowledgment of the judgment debt by the debtor must be in writing.

    The written acknowledgment, or judicial admission of a judgment debt of a succession, made by the executor before tho debt is prescribed, will interrupt prescription.
    Tho special mortgage creditor of a succession is entitled to be paid out of the proceeds of the property on which his mortgage rests by preference over the expenses and charges of the administration, only when there are other funds of the succession out of which such expenses may be paid.
    REPEAL from the Parish Court of West Baton Rouge. Hyctms, J.

      Barrow & Pope for appellee.

      Thos. J. Semmes, Favrot & Lamon, and Chas. Carroll for opponent ■and appellant.
   The opinion of the court was delivered by

Egan, J.

This case comes before us on two appeals; one taken by the opponent, and the other by the executor of the succession. The principal question grows out of the filing in this court of a plea of prescription of ten years against the judgment evidencing the claim of opponent. The judgment was rendered on the fourth of January, 1868, and has never been revived under the statute. The plea of prescription was filed on the sixteenth of February, 1878, more than ten years after ■the rendition of judgment.

Two questions confront us at once under this state of facts. First: Do the general rules laid down in the Civil Code for the interruption of ■prescription of debts apply to judgments as well as to other forms of obligation ?

Second: If they are thus applicable, has prescription been interrupted in the present case, and, if so, how? Prior to the act of 1853 ■our law provided no period for the prescription of judgments; debts thus evidenced and decreed to exist in the most solemn form were so highly favored and considered of so high dignity and truth that they were imprescriptible. Then, for the first time, it was provided that “all judgments for money, whether rendered within or without the State, shall be prescribed by the lapse of ten years from the rendition of •such judgments;” thus fixing their prescription at the longest time known to our law for the prescription of personal actions. It was, however, at the same time provided that any party interested (not merely the judgment creditor) might have the same (judgment) revived at any time before it is prescribed by having a citation issued according to law to the defendant or his representative from the court which rendered the judgment, unless the defendant or his representative show good cause why the judgment should not be revived: and that “any judgment revived as above provided shall continue in full force for ten years from the date of the order of court reviving the same, and any judgment may be revived as often as the party or parties interested may desire.” These provisions are re-enacted in terms in the Revised Civil Code, article 3547, under the general head of: “ Of the prescription which operates a release from debt; ” and under the particular head (which also embraces certain other particular actions and personal actions in general not otherwise provided for): “ Of the prescription of ten years.” This statute, passed originally in 1853, continued in the revision of 1855, 1856, and again in the present Revised Civil Code of 1870, is now, as we have seen, incorporated with and placed by the legislator upon the same general footing as other prescriptions operating a release from debt, and under the general head of “ Prescription,” in the Code. As an original question, then, it would hardly have occurred to any one to distinguish the prescription of judgments from the prescription of debts otherwise evidenced, except as the time of acquiring prescription -when specially provided, and except, also, as to the higher privilege accorded to-judgment creditors of preventing prescription altogether by the action of revival. We may here remark of this peculiar statutory action that it is not to be confounded with the interruption of prescription, which when the statute is complied with is not interrupted in the sense and meaning of the law, but is considered as having never been, as being altogether prevented by the action for revival. This is manifest not only from the fact that this prevention of prescription is provided for by the proviso of the very act which creates it under other conditions, but because by the terms of the law itself, unlike the interruption of prescription, the time during which the judgment shall continue in force is counted not from the date of service of citation, but “ from the date of the order of court reviving the judgment.” It is, however, argued that because the law provides a means for the revival of judgments, and for thus continuing them in force, this action of revival is the only means of avoiding the effect of the lapse of time fixed in the law for their prescription! In other words, that debts thus ascertained and decreed to be due in the most solemn form known to the law, to which the highest dignity is attached, and containing one, the existence and exigibility of which is closed by the rendition of the judgment, which theretofure stood as a perpetual public evidence in favor of the creditor and against the debtor, were placed and intended to be placed by the passage of the statute providing for the first time fcr their prescription “ in duriori casu ” than any and all other debts, of however little dignity, and however evidenced! Is such a legislative intention to be lightly assumed ? We say Ic in duriori casu,” because while the avoidance or interruption of prescription by suit against the debtor is always open to the creditor whose debt is not merged in judgment, he is also entitled to the benefit of all the means otherwise provided in the law for the avoidance or interruption of prescription, while if the argument now urged be well founded the judgment creditor alone is not permitted, to profit by an acknowledgment of his debtor voluntarily given, or by any of the other means of interruption known to the law and applicable to other creditors and debts without distinction. We should be very slow to arrive at such a conclusion unless it is clear that such was the legislative intention. What, then, it may be asked, was the object of the Legislature in providing in the same act for the revival of judgments by citation to the debtor and another solemn adjudication by the same court of the continued existence and exigibility of the judgment debt ? This, we think, is easily answered. But for the proviso of the act the judgment creditor who had once resorted to citation to his debtor and thus exhausted his legal remedy in the courts; who having once sued and attained all the ends and objects of suit would not again have been permitted to summon his debtor before a court of justice on account of the debt would have been left entirely at the mercy of his debtor who might not choose to give any voluntary acknowledgment of the debt and who not being liable to citation by his creditor, as in ease of ordinary debts or creditors, had nothing to do but sit still during the ten years and his judgment creditor would have thus been completely in his power notwithstanding the high dignity and formal judicial ascertainment of his debt. Hence it was that the same statute which made judgments prescriptible in ten years at the same time gave the creditor or other parties interested the statutory action for the revival and continuing in force of the judgment — without reference to any act of the debtor. Had the statute not given him a direct action in some form, he would have had none. The Legislature, which in those days was composed in part of lawyers of eminent ability, it may be well assumed saw this, and while applying prescription to judgments at the same time and by the same act provided this peculiar action of revival, which this court has repeatedly held to be so exceptional in its character that the grounds or evidence upon which the judgment is based can not be inquired into, and that the only issues pertinent are: Is there in fact a valid subsisting judgment, rendered by a competent court, and is it still exigible, or has it been extinguished by payment or in some other lawful mode ? It is then both in the scope of inquiry and in its effects wholly unlike the ordinary action upon debts and claims not in judgment, and neither by its terms nor any fair construction was intended to provide any different mode of interrupting prescription of judgments from those applicable to other forms of debt, but, as we have said, was intended altogether to prevent the prescription of debts evidenced in the solemn form of judgments aDd tq “continue them in force” in the language of the statute, not for ten years from the date of citation, which as to ordinary debts interrupts prescription, but for “ten years from the date of the order of court reviving the same.” It is questionable even whether aDy thing more than a mere order of revival is necessary under the statute, and whether it is necessary to await the delays of and clothe that order in the form of a judgment at all!

If, then, the proceeding under the statute was intended to revivify and “ continue in force ” ab origine the judgment, and with no other scope or object, how can it be said to be at all events the onty and exclusive means of “ interrupting ” the prescription of the debt evidenced by the judgment, a subject and matter for which the law at the time of the passage of the act under discussion made other and distinct provision? See O. O. 0. arts. 3482-3486 inclusive, and arts. 3514-3520 inclusive,but especially arts. 3480 an 1 3516 and 3517, which among the causes of interruption of prescription provide that “prescription ceases to run whenever the debtor or possessor makes acknoioledgment of the right of the person whose title they prescribed ” or “ of the debt.” If, however, there was ever reasonable cause for doubt on this subject of the legislative intent, it was removed by the act of April 18, 1858, entitled an act to require written proof in certain cases (acts of 1858, p. 148), the first section of which provides “ that hereof ter parol evidence shall not be received to prove any acknowledgment or promise to pay any judgment, sentence, or decree of any court of competent jurisdiction either in or out of the State for the purpose or in order to take such judgment, sentence, or decree out of prescription or to recover (revive) the same after prescription has run or been completed,” and does not even stop there, but continues affirmatively “that in all such cases the acknowledgment and promise to pay shall be proven by written evidence signed by the debtor* himself or by his specially authorised agent or attorney in fact.” Could there be any clearer legislative interpretation of the effect of the act of 1853 than is here given, or any clearer evidence that prior to the act of 1858 there was nothing to prevent the reception of parol evidence of the acknowledgment or promise to pay a judgment debt as well as one in any other form? And what would be the meaning or purpose of the Legislature in prohibiting the reception of parol evidence for such purpose in future, if evidence in any form could not be received at all ? What, too, becomes of the positive affirmative provision of the act that such •acknowledgment or promise to pay any judgment, sentence, or decree of any court of competent jurisdiction shall be proved bxj written evidence •signed by the debtor or his authorized agent? It is manifest that the •act of 1853 providing for the prescription and revivál of judgments was •not then considered or intended to exclude any competent evidence of the acknowledgment of a debt in the form of a judgment more than if •in any other form. Had there, however, been at any time reasonable •question on this subject, we think it was finally settled and removed beyond controversy when both the provisions of the act of 1858 and those of 1853 were incorporated in and made part of the Revised Civil Code of 1870 ; see articles 2278 and 3547 of the. existing Code. The latter article, relating to the prescription and revival of judgments, comes ■under the general head of “Prescription,” under that section which treats of “the prescription which operates a release from debt;” and ■under the immediate head “ of the prescription of ten years,” which follows in its order the provisions of the Code on the subject “ of the pre■seriptions of one, three, and five years,” and immediately precedes that of •thirty years, while it is itself preceded by the provisions of the Code on the subject “ of the causes which interrupt prescription,” “ of the causes which suspend the course of prescription,” and is followed with only the intervention of a single article by the section of the Code under the ■same general head of prescription which treats “ of the rules relative to the prescription operating a discharge from debts,” wherein it is provided (art. 3551) that “ The prescription releasing debts is interrupted by •all such eases (causes) as interrupt the prescription by which property is •acquired, and which have been explained in the first section of this ■chapter.” And it is also interrupted by the causes explained in the following articles, the first of which, art. 3552, reads : “A citation served upon one debtor in solido, or his acknoiuledgment of the debt, interrupts •the prescription with regard to all the others, and even their heirs.” And the next, art. 3553, that “ a citation served on the principal debtor, •or his acknowledgment, interrupts the prescription on the part of the surety;” while, under the preceding head referred to, among the causes •which interrupt prescription are enumerated not only citation before a court of justice, but it is also provided (art. 3520) that “prescription •ceases likewise to run whenever the debtor or possessor makes acknowledgment of the right of the person whose title they prescribed.” All of ■the provisions quoted-are'general, and neither by the terms of the law, •nor, we think, by any just rule of interpretation, can they be applied or ■confined to any particular period of prescription, or to any particular -class of claims or evidences of debt to the exclusion of others. There is nothing in their collocation or language to warrant so narrow a view, and by every fair and well established rule of interpretation, being upon a general subject under general heads, and being, also, general in their terms, they must have general application to all debts, however evidenced. The language used in regard to the prescription of judgments is no more peremptory than that in regard to other actions or debts prescriptible by ten years, or by any shorter or longer period. In regard to all alike, where there is no prevention, interruption, or suspen-' sion of prescription, it is an equally “ peremptory and perpetual bar to recovery,” where the creditor has been silent for the “ requisite time, without urging his claim.” C. C. 3459. "We think, then, that, subject only to the exclusion of parol evidence, by what is not inaptly termed our statute of frauds, the prescription of judgments may be interrupted like other debts, or debts evidenced in other form, and that there is nothing to exclude the acknowledgment, promise of the debtor to pay debts of such high dignity, and the existence and amount of which has been ascertained and decreed in the most solemn form known to the law, any more than acknowledgments of other debts of less dignity, rank, and certainty. It may not be amiss to remark, also, that where the proceeding by “scire facias,” which is somewhat similar to our statutory action of revival, prevails, that process is not the only means known to the law for the interruption or prevention of prescription.

Having answered the first inquiry with which we set out affirmatively, it only remains now to answer the second (i. e.): Has prescription been interrupted in the present case, and, if so, how?

On the fifth of March, 1875, the executor of Patrick filed a provisional account and tableau, from which the Soniat judgment, claimed and held by Mrs. Carroll, executrix, was altogether omitted. On the twenty-first of April, 1875, she filed an opposition asking that she be placed on the tableau as a judgment creditor, with the proper rank and privilege. There was judgment in the parish court on the sixteenth of October, 1876; and on appeal in the Supreme Court, April 16,1877, the opposition was sustained after a vigorous contest, and the existence and ownership of the judgment in question was decreed in favor of the same opponent, contradictorily with the executor of Patrick, who was ordered to file a new and amended tableau, and to place upon it said judgment. Accordingly an amended account and tableau was filed by the executor on the thirtieth of July, 1877, and the judgment of the opponent was recognized and placed upon it; at the same time, however, the executor of Dr. Patrick alleged the rendition in favor of the succession of a judgment versus Mrs. Ellen G-. Patrick, with which he claimed to compensate to its amount that of the opponent, Mrs. Carroll; and also alleged that since the decree of this court, before recited, he had instituted suit in the third district court of New Orleans, to revoke and set aside the transfer to Mrs. Carroll of the Soniat judgment, which he claimed rightfully to belong to Mrs. Patrick, the judgment debtor of ■the succession, and asked that further proceedings in the matter of account and tableau be stayed till the determination of the revocatory action in the third district court before mentioned. A copy of this proceeding in the third court was filed in the present case on the thirtieth of July, 1877, and appears in this record. Mrs. Carroll again opposed, and there was judgment on her opposition in the parish court, in accordance with the former decree of this court, and recognizing her rank and privilege as well as the amount of her judgment, which was ordered to be paid accordingly. It is from this j udgment that the present appeal is taken, both by the executor and by Mrs. Carroll, the opponent, who complains of error in the judgment, which, while sustaining her opposition so far as to recognize her as a judgment creditor to the full amount of the Soniat judgment, and refusing the claim to compensate it with the judgment versus Mrs. Patrick, still preferred to her certain expenses and charges of the succession, altogether amounting to a little more than $1100. In regard to this, we may as well now say that we are not prepared to say the parish judge erred as to the general rank of the items going to make up the sum; that the amounts are small, and such as, from their nature would seem to be legitimate and proper expenses and charges of the succession.

Recurring again to the other branch of the case: An examination of the pleadings both on the original opposition and that now under consideration discloses the fullest and clearest possible recognition by the executor of the existence, amount, and character of the Soniat judgment, which carried with it a vendor’s privilege for lands sold to deceased, and found in the succession; and all within less than ten years from the rendition of that judgment, as we have seen by the dates already given. Ln the answer to the first opposition the existence, amount, and character of the j udgment were not disputed, but, on the contrary, directly admitted. It was only the transfer to Mrs. Carroll which was attacked as simulated, fraudulent, and illegal, and the right claimed by the executor to compensate it with the same demand, not then in judgment against Mrs. Ellen G-. Patrick. It was on these issues that our former decree, of April, 1877, was rendered against the executor, and in favor of the opponent, as heretofore stated. The amended account and tableau, filed subsequent to that decree, in July last, and the petition of the executor of Patrick accompanying, sets forth the Soniat judgment with the utmost minuteness of detail, and after recognizing and placing it upon the •account makes up a statement of interest both on that and on the judgment against Mrs. Patrick, and strikes a balance after deducting it from the Soniat judgment in favor of the latter of $4411 62. The account-thus stated is asked to be approved and homologated. It is difficult to conceive of a fuller or clearer acknowledgment and judicial admission in the most solemn form, within the period of prescription of the full* amount of the judgment claimed by the opponent. But this is not all! Nothing could be more specific and direct in the way of acknowledgment of this judgment than the petition and suit in the third district* court of New Orleans to revoke and set aside the transfer of it from' Mrs. Patrick to Mrs. Carroll, the opponent against whom the prescription is here pleaded, and who has, year after year, and in various shapes* and forms, been judicially “urging her’claim,” to usé the language of' the law. C. C. 3459. She has been any thing but silent, while unfortunately for his plea the executor of Patrick, in his vigorous efforts to* defeat her, has been equally far from being silent, and, as we have seen,, has in every pleading filed by him in every judicial proceeding down to* the present, since the original provisional account, not only admitted, but himself directly alleged the existence and amount of the judgment set up by the opponent, and, according to his own allegations and proof in this proceeding, is even now waging vigorous contest to restore the-title to this very judgment to the debtor of the succession which he represents, that he may thereby collect his debt by compensating the two judgments pro and con. The existence, exigibility, or amount of theSoniat judgment were, indeed, never denied by the executor or any one-else until the plea of prescription of ten years was filed in this court in February of the present year. It is quite evident that counsel has relied' in support of the plea entirely upon the idea that no other evidence-except the order or judgment of revival provided by the statute could avoid the effect of the plea. We have, however, seen otherwise in discussing our first proposition; and we have now sufficiently reviewed the-facts of this case to make it manifest that not only by the most solemn* judicial allegations and admissions of the éxecutor- — who represents both the succession and the creditors — but, also, by the decree of this court on* the former opposition between the same parties, all within less than ten years from its rendition on the fourth of January, 1868, the judgment and debt of the opponent, Mrs. S. E. Carroll, now wife of Noble,, has been taken out of prescription, which has thus both by judicial proceeding to demand and enforce the debt, and by the most solemn admissions and assertions by the executor, of its existence, been interrupted. There are some minor objections raised by counsel to the-manner of proceeding to the trial of the opposition; all evidently-intended for delay, which we do not consider it necessary to notice, as it-was the duty of the executor of Patrick after our former decree to obey it according to its terms, and not again, in the face of that decree, to> claim the right to compensate the judgment of opponent with that against Mrs. Patrick. We think he has no one to thank but himself for any subsequent complications or litigation in the present case, and that the parish judge did not err.in disregarding this renewed attempt to assert rights already decreed adversely to his pretensions on the former appeal, or in giving to the opponent that trial of the opposition to which she was entitled under the law, as the case then stood. The same plea of prescription of ten years has been filed in this court against the judgments of Bebecca Bowe, No. 1766, and William Bogel, No. 1953, both of the docket of the fifth district court of West Baton Bouge. The former of these appears to have been rendered on the twenty-first of July, 1866, and the latter on the eighteenth of April, 1867, and would on their face appear to be prescribed. As, however," the executor of Patrick seems from this record not to have contested "these judgments, but, cn the contrary, to have, so far as appears, voluntarily placed them and the costs of court in them on his account and tableau, the hr mulogation of which he prayed for, and, as no creditor or other party in interest appears before us to confess them, we think justice requires that these judgment creditors should not be taken unawares by the plea filed in this court for the first time, when they had good reason to believe their judgments not only not contested, but admitted. We will not, therefore, conclude them by our judgment. We have not dwelt upon a motion to dismiss the appeal of the executor of Patrick, No. 7052, but will now say that we think the grounds for dismissal untenable, and that the executor had a right to appeal. The motion to dismiss is, therefore, overruled. The lands upon which Mrs. Carroll, executrix, claimed the vendor’s privilege were sold, in the succession, but an opposition was filed by her attorneys for her claiming her privilege bn the proceeds. By means of this, and of her opposition heretofore filed, and that now before ns, her privilege was preserved, and she is entitled to be paid her judgment out of the proceeds by privilege and preference over all other creditors; and if there be other sufficient funds in the succession to pay the expenses and charges thereof, by preference and privilege over them, also. She asks that the judgment of the parish court be modified and amended as to so decree. This, we think, she is entitled to. The appeals of Mrs. Carroll, executrix, and of Butler, executor of Patrick, numbered respectively on the docket of this court 6957 and 7052, were both in the same ease and from the same judgment. They were argued and submitted together, and this opinion applies to and covers the whole case on both, appeals, the only difference being as to the matter of costs.

It is therefore ordered and decreed that the pleas of prescription against the Soniat judgment of Mrs. Sarah E. Carroll, executrix of Joseph Carroll, deceased, be and they are overruled, and the judgment below be so amended as to her- as to require that the debts and charges allowed in'preference to hers be paid out of the funds of the succession of Patrick derived from other sources, so far as sufficient for that purpose, before any contribution thereto is called for or made from the funds or price of the land upon which she is decreed to have the special privilege of vendor for the payment of her judgment, and that, in other respects, as to her and her said judgment and debt, the judgment of the court below is affirmed, the succession to pay costs of both courts on her appeal, 6957. It is further ordered and decreed that so much of this case as relates to and is affected by the plea of prescription filed in this court to the judgments of Rebecca Rowe and of William Bogel be remanded to the court below for the trial of that question only, and as between the holders of said judgment and the succession the costs of appeal number 7052 by the executor of Patrick await the judgment on the question of prescription, and as to all others that said costs be paid by the succession of Patrick.

Dissenting Opinion.

Manning, O. J.

I think the plea of prescription should be sustained. In my opinion, it was not intended by the legislature, in passing the-act of 1853, to permit any other method of preventing the prescription of judgments, save that of a citation for its revival. In framing that law, the General Assembly must be presumed to have taken into consideration all the possible modes of acquiring prescription of obligations, and of interrupting or suspending it. The law about to be framed was an innovation of a mrst serious kind, and the consequences of such an enactment must have been foreseen. Notwithstanding those possible consequences, which did not require any special sagacity to discern, it was enacted that judgments should be prescribed by the lapse of ten years, provided however .that the party who wishes to keep them alive might have them revived by pursuing a specified course. The Soniat judgment, which opponent now owns, has never been revived, nor has citation to revive been served upon the representative of the defendant in the judgment. Ten years have passed since its rendition, and I think the plea fatal to its continued existence. Sue. Hardy, 25 Annual, 489. Smith v. Palfrey, 28 Annual, 615.

Even if its acknowledgment by an administrator, or the placing it on a tableau of debts, were sufficient to interrupt prescription, (and I do not think it is of a judgment) in this case, so far from there being any acknowledgment that the Soniat judgment was a valid claim against the succession, it was constantly disputed — it was not recognized as one of the liabilities of the succession, and it was not until a decree of this court was made, directing that the executor oí Patrick should place it -on his tableau, that any recognition of it was ever made. • When that decree was made, the judgment was not prescribed — ten years had not ■elapsed — and it was therefore properly made, but. in the interim, the full term has passed, and the plaintiff or her assignee has neglected to issue any citation for revival, and. the judgment has, as I think, become ■extinct.

The difficulty lies in the construction of the act of 1858, which is ■said in the Opinion of the court to be a legislative interpretation of the •■act of 1853. There is so much force in this position that at first glance it seems conclusive. Nevertheless I do not adopt it.

The first section of that Act, the object of which was to require written proof in certain cases, prohibits parol evidence being received to prove any acknowledgment to pay any judgment for the purpose of taking it out of prescription, or to recover it after prescription has been •completed, but requires such acknowledgment to be in writing. It may be very pertinently asked, if nothing but a citation to revive can prevent the acquisition of prescription, why prohibit a parol promise from producing that effect, and why enact that the promise must be in writing ?

I do not think the act of 1858 can be held to be, or that it ever was supposed to operate, a repeal of that of 1853, and the latter had expressly enacted that the judgment should be prescribed in ten years, providing however that this might be prevented by a citation to revive. It was supererogatory for the legislature to say in 1858 that a parol promise to pay a judgment should not interrupt or prevent prescription, but that the promise must be in writing, because at that time it was positive law that neither the one nor the other could produce that effect ■so as to revive the judgment. The act of 1853 had rigorously declared that 1he lapse of ten years would inevitably destroy a judgment unléss"the party owning it shorild before the completion of that period cite the judgment debtor to revive it. It was superfluous afterwards to say, a parol'promise to pay should not enable one to recover it, for neither parol nor written plromise could effect its revival. It should be observed that the act of 1858 does not enact in positive terms that a written promise shall interrupt prescription, and thereby repeal pro tanto the act of 1853, but that hereafter parol evidence shall not be received to prove any acknowledgment of a judgment, but the same must be in writing. The prohibition was unnecessary, because after you had received in evidence both the parol and the written promise, and the proof of acknowledgment was complete, you were as far as ever from'keeping the judgment alive, inasmuch as the law of 1853 had stricken it with an incurable paTalysis, if its holder had neglected to have issued a citatiomfor its revival.

There are peculiarities of diction in both the'texts of the law of 185S which strengthen my construction of it, if they affect it a‘ all. The word ‘ recover ’ in the first section has recouvrer in the corresponding text, so that we are not left free to conjecture that ‘revive’ was intended to be used, as.we certainly should if. ‘revivre’ was in the correspondingErench text.

The law of 1858 then is, that you must have a written promise to-pay a judgment in order to take it out of prescription,- or to recover it after prescription has been completed. The law of 1853 had already-enacted that prescription was completed in ten years unless you had commenced proceedings to revive. The harmonious construction of the two-laws is, that a citation to revive, timely served, keeps the. judgment continuously alive, while a written promise or -acknowledgment will enable-you to recover the judgment, after prescription has been completed— will enable you to revitalize it.

But in that case, you must bring your suit'on the extinct judgment, and shew your right to recover by proving the written promise or acknowledgment. Nothing of that kind has been done here — nothing has-been done at all, except to contest the accounts or tableaux of the administrator of the deceased judgment debtor.'

There is still another fatal objection ■ to the construction of the majority of the court. The act of 1858 is now sec. 2818 of the Revised Statutes of 1870. The act of 1853 is now art. 35-17 of the Revised Civil Code. Where these conflict, the Code must prevail. The act of 1853’ must then prevail over that of 1858, and the enactment which imperatively requires a citation to revive as the only method of keeping alive a judgment, or of preventing prescription, is the paramount law. How-then is it possible for this Soniat judgment to escape an extinction, twice-pronounced by the legislative will as sure to befall all judgments that have not been revived, or the judgment debtor cited for revival withira ten years ?


author: Manning, C. J.

text:
    No. 1015.
    Succession of Oramel Hinckley. On Exception of Heirs.
    When the judgment of the lower court on an exception filed to the account of a syndic, is in effect the dismissal of his account, and a refusal to hear his proofs of its correctness, he is entitled on his averment that he can file no other account, to an appeal from the judgment.
    An exception to the account of a syndic on the ground of its unintelligibility, should clearly set forth wherein it is amenable to such an objection, and the syndic should be allowed to introduce proofs of its correctness.
    ^PPEAL from the Parish Court of St. Landry. Fontenot, J.

      F. D. Fstilette and Kenneth Ballio for heirs and appellees.

      Jas. M. Moore for syndic and appellant."
   On Motion to Dismiss.

The opinion of the court was delivered by

Manning, C. J.

Oramel Hinckley died several years ago insolvent. A meeting of his creditors was called, and they deliberated upon and determined the mode of settlement of the estate, and appointed Dominique Lalanne syndic. • He assumed charge, and has filed his final account of his gestión. Due publication was made of this filing, and the heirs were cited to appear and oppose it, if there should be cause. They appeared, and instead of ah opposition; filed-an exception, averring that they were unable to understand the account because of its obscurity, and unintelligibility, and because it is not a full and fair account as contemplated by law, and they pray that the syndic be ordered to file another.

They do not specify or particularize the obscurities, nor in what respect the account is unintelligible, nor why they consider it unfair or incomplete. The court sustained their exception, and the syndic appeals. The heirs now move to dismiss the appeal, because it is from an interlocutory order, and works no irreparable injury.

The judgment is in effect a dismissal of his account, and a refusal to receive his proofs of its correctness, and is irreparable, if his averment be true that he can file no other.

The motion to dismiss is refused.

On the Exception.

In October 1871, the syndic filed a tableau of classification of the debts of the succession, and a provisional account of his administration. The heirs opposed the homologation of this tableau and the account, which they subsequently withdrew, and a homologation was decreed, and the syndic was ordered to pay the debts and charges as they were classified. The syndic obeyed this mandate, and the account now filed is a statement of what he did under that decree.

The heirs have not opposed the account specifically, but content themselves with averring their inability to understand it, and do not point out in what particulars it fails to be full or fair. We do not participate in their want of comprehension. On the contrary it appears on its face to have been stated with more than ordinary perspicuity, and completeness.

The syndic was entitled to have the objections to the account set forth with sufficient detail to enable him to know what they were. A general opposition even would put him to the proof of each item, as it is assimilated to the plea of the general issue in an ordinary suit, and would require the production of his vouchers on the trial,- or other proof equivalent thereto. The syndic has not had an opportunity to offer any voucher, or to establish the correctness of his account in any way. He is bound only to file an account, sufficiently full and specific as to be intelligible to ordinary comprehension. He is not bound to supply the heirs with the faculties which will enable them to comprehend it.

The judgment of the lower court is erroneous. Therefore

.It is ordered, and decreed that the judgment of the court a qua is avoided and reversed, and the exception of the heirs is overruled and dismissed, and the cause is remanded to be proceeded with according to law, the appellees paying costs of appeal.


text:
    No. 1016.
    Frank Gonzales vs. J. T. Lindsay, Tax Collector.
    When the constitutionality of a tax is at issue, this court has jurisdiction regardless of the amount in dispute.
    The justices’ courts have authority to issue injunctions in all tax suits brought before them of which they have jurisdiction.
    When a party sues in a justice’s court to enjoin the collection of an alleged illegal tax, it is not necessary to allege any specific indebtedness by way of damages, in order to give the court jurisdiction.
    The police jury of a parish are not' a necessary party to a suit brought by the State tax collector to enforce the payment of parish taxes.
    An ordinance of a police jury, passed prior to April 20,1877, imposing a parish tax of over four mills on the dollar for general parochial purposes, and not afterward sanctioned by the vote of a majority of the taxpayers of the parish, is illegal.
    APPEAL from the Justice’s Court, Third Ward, parish of Cameron. Gee, J.

      Geo. H. Wells for plaintiff and appellant.

      A. J. Kearney for-defendant and appellee.
   On Motion to Dismiss.

The opinion of the court was delivered by

Manning, C. J.

The appellee moves to dismiss on the ground that the sum in dispute is less than $500, and there is no question of the constitutionality or legality of any tax involved.

The sole question is the legality of a tax, and that gives jurisdiction, regardless of the amount. The motion is frivolous, and is denied.

On the Merits.

An injunction was obtained by the plaintiff to restrain the collection of an alleged illegal tax. The police jury of Cameron parish had levied parish taxes on the assessment rolls for 1876 to an aggregate amount of eighteen mills on the dollar. The plaintiff alleges that this levy, which is in excess of the rate permitted by law, was not sanctioned by a vote •of a majority of the tax payers, and is therefore illegal. He tendered the sum he actually owed, on a levy of four mills on the dollar, in legal tender currency, and injoined the threatened sale of his property for the purpose of collecting the excess of the amount he legally owed.

The defendant excepted to the action, and moved to dissolve the injunction on these grounds ;

1. That the court had no authority to.grant the injunction.

The writ was issued by the same Justice’s court, in which the tax collector had proceeded for the enforcement of the tax, and was the proper tribunal to hear and try the injunction. Justices of the Peace are authorized by express law to issue injunctions in causes within their jurisdiction, and special authority is conferred upon them to take jurisdiction of all claims for taxes when their amount does not exceed one "hundred dollars exclusive of interest. Code of Practice, arts. 1063, 1064, 1096, 1126, 1152.

2. That the tax collector had given bond for ten thousand dollars, and as this action is against him in his official capacity, his bond is necessarily attacked, and its amount puts this case beyond the jurisdiction of the Justice’s court.

Although we find this ground repeated in the" defendant’s brief, we doubt if he was serious in urging it. It is wholly untenable.

3. There is no allegation in the plaintiff’s petition of any specific indebtedness by way of damages upon which the court could predicate jurisdiction.

Nor need there be. Jurisdiction is given to that court, and to this, by the allegation and the fact that the defendant was about to enforce the collection of an illegal tax by the forced alienation of the plaintiff’s property.

4. The defendant derived his authority to collect taxes from the police j ury, and that body is a necessary party to any suit to restrain their collection.

That is a mistake. The defendant derives his authority from the legislature, which has made the collector of the State taxes also the collector of the parish taxes. Rev. Stats, sec. 2792.

But if it were otherwise, and he derived his authority direct from the police jury, that body would not be a necessary party to this, or any similar suit.

The resolutions or ordinances of the police jury are illegal and null, so far as they authorize, or attempt to impose, a parish tax greater than four mills on the dollar for general parochial purposes. There are special laws authorizing other special taxes for special purposes. Lafitte v. Morgans, 29 Annual, 1.

The act of 1877, authorizing police juries to levy a tax of ten mills •on the dollar, and an additional tax under certain specified circumstances, was not passed until April 20th of that year. The ordinances •of the Oameron police j ury, under which the defendant was proceeding, -were all adopted prior to that date, and consequently before that body .had legal authority to impose a tax of that date.

The lower court sustained the exception, and dissolved the injunc"tion. This is error. .Therefore

It is ordered, adjudged, and decreed that the judgment of the •Justice of the'Peace herein is avoided and reversed, and it is further decreed that the injunction be reinstated, and that the lower court pro•ceed to the hearing of the same. It is also adjudged and decreed that .the plaintiff recover of the defendant the costs of appeal.


author: Spencer, J.

text:
    No. 1017.
    Maraist, Fournet & Co. vs. C. Caillier, Administratrix.
    "When parties silently acquiesce in and enjoy the benefits of a confession of judgment made in their names by an attorney at law, who has acted in the matter to their knowledge as their representative, they will be estopped from afterward denying the authority of the attorney to represent them.
    The makers of a promissory note can not annul a judgment obtained against them on-said note by the administrator of a succession, on the ground that the note did not belong to the succession, or on the ground that the administrator was not qualified to act as such.
    APPEAL from the Third Judieial District Court, parish of St. Martin. Fontelieu, J.

      F. & M. Voorhies for plaintiffs and appellants.

      Moutun & Marlin for defendant and appellee.
   The opinion of the court was delivered by

Spencer, J.

In the suit of Celestine Caillier, administratrix, vs. Maraist, Fournet & Co., plaintiff obtained judgment against said firm and G. A. Fournet for $558 30, being the amount of their promissory note .payable to the order of Joseph Caillier, of whom plaintiff was sole heir .and claimed to be administratrix.

The judgment was rendered after answer by all the defendants, in -which they confessed their indebtedness. This answer was signed by G-. A. Fournet, as their attorney at law. In the judgment it is recited -as having been rendered “ by reason of the law and evidence being in 'favor of plaintiff,” etc., “and for the further reason that- defendants have «confessed judgment,” etc. The judgment then decrees a stay of execution as to all the defendants until first March, 1878. It was signed 29 th May, 1877.

This is an action to annul that judgment, and it was filed March 8, 1878. The grounds of nullity are in substance—

First — That it was rendered on confession contained in the answer filed by G. A. Fournet, attorney at law ; that said attorney was without authority to confess judgment, and was not the attorney of said Maraist, Fournet & Co., which firm was composed of three members, A. Maraist, Charles St. Germain, and Y. A. Fournet.

Second — That the note sued upon was not. the property of Joseph Caillier or of Celestine; but was given to said Joseph Caillier in settlement of a balance due him as executor of Uranie Patin, said executor having-surrendered certain mortgage notes of Y. A. Fournet in exchange for said-note so sued upon.

Third — That said Celestine was never legally appointed or qualified as administratrix of her said deceased father Joseph, and had no right to sue on said note.

We will consider these grounds of nullity in their order.

First — The judgment recites that it was rendered “by reason of the law and evidence ” as well as “ by reason of the confession.” But we are disposed to give plaintiffs the benefit of their proposition that it was rendered on confession. G. A. Fournet was an attorney at law, and the evidence shows that Y. A. Fournet and Maraist consulted him about this suit. True, they swear they did not employ him as attorney, or authorize him to confess judgment. Y. A. Fournet admits that a few days after the judgment G. A. Fournet told him about the judgment, and that “ he had obtained a stay of execution.” Auguste Maraist admits that he knew all about the judgment having been rendered. In fact, he was sworn as a witness for plaintiff. He admits that as soon as he got off the witness-stand he retired to a room and called G. A. Four-net and told him to see that a stay of execution was obtained, and G. A. Fournet promised to do so. That the next day on going to the courthouse G. A. Fournet told him he had obtained the stay of execution until first March, 1878. Other witnesses show that Maraist heard the attorney, G. A. Fournet, read the answer in open court. St. Germain, the other party plaintiff in this cause, admits that he knew of the suit, but says he left the management of lawsuits to his partner, Maraist. He says he never authorized any attorney to appear or answer or confess for him.

But there is one fact which to our mind utterly destroys the pretense of plaintiffs in this cause. It is that with full knowledge of the act of G. A. Fournet confessing judgment for them, and knowing that the judgment had been rendered, they quietly avail themselves of the long stay of execution stipulated in their favor — from May to March— nearly a year. During all this time they are silent. They are gathering the fruits of their attorney’s alleged unauthorized acts. When that delay expires and the plaintiff wants her money they suddenly awake and claim that the attorney had no authority. They can not be thus permitted to enjoy the advantages gained for them by the attorney and repudiate the burdens imposed.

This case does not differ in principle from that of Lallande vs. Jones, 14 An. 715, when this court held that the defendant, who availed herself of the stay of execution' stipulated for her by her attorneys in a confession of judgment, would not be heard to deny their authority to make the confession.

As to the second and third grounds of nullity, there is no force in them. The note sued upon belonged to J os. Caillier. It was payable to his order. It did not belong to the estate of Patin. The fact that Caillier obtained it in payment of or exchange for notes of the estate held by him as executor did not make it the property of that estate. He was responsible to that estate for the notes he gave up, and could not have compelled it to take the note he got in return. If that note was lost or worthless, it was his loss, not the estate’s.

It needs no argument or authority to show that the want of capacity of Celestine as administratrix of her father’s estate is no ground to annul the judgment. It could not have been pleaded even, except in limine. Besides, the allegations of the defendants in that suit show that she was sole heir of her father.

There is no error in the judgment appealed from, and it is affirmed with costs of both courts.


author: Mare, J.

text:
    No. 1007.
    Aug. Maraist, Syndic, vs. Honoré Guilbeau, Administrator.
    triio homologation by the clerk of the court of a tableau of the debts of a succession filed by the administrator, on which tableau a certain sum is set forth as due to a certain creditor, does not amount to a judgment for that sum in favor of the creditor, and hence does not axxthorizo him to proeeod by rule against the administrator to enforce the paynxent of the sum.
    j^PPEAL from the Parish Court of St. Martin. Bassett, J.

      F. & M. VoorMes for plaintiff and appellant.

      J. F. Mouton and B. Martin for defendant and appellee.
   The opinion of the court was delivered by

Mare, J.

Honoré Guilbeau, administrator, filed a “ tableau of the debts and charges of the estate of Dr. John H. Thomas, and of the community which existed between him and his second wife, and proposed distribution of funds, etc.”

The gross amount of money to be distributed was $4047 81, proceeds of two sales, of which $192 05 belonged to the estate of Thomas alone, and $385'5 76 to the community. The aggregate of debts was $13,370 94, of which $1512 70 were for costs and expenses of administration: $3000, due the widow under the marriage contract, and $7068 02, sums due the children for whom the deceased had been tutor. There is also put down as a debt the sum “ due Broussard & Tertrou, two notes and an account, amounting in capital to $1590 07.” This was an ordinary debt, while the other debts just enumerated were secured by mortgage and privilege.

After due publication, no opposition having been filed, this tableau was approved and homologated by the clerk of the court, in July, 1866. The record does not show what disposition was actually made of the funds, nor that any further proceedings were had in the succession.

In February, 1877, August Marais, styling himself syndic of the insolvent firm of Broussard & Tertrou, brought suit in the parish- court, to recover of G-uilbeau personally and as administrator the $1590 07 put down on the tableau. This suit was dismissed, on exception, for want of jurisdiction; and, shortly after,’ Maraist caused notice to be served on Guilbeau, “that a final judgment of homologation of the tableau of classification in said succession has been rendered on the seventh July, 1866, against you ; and, unless you pay, in ten days from the service hereof, the sum of fiftebn hundred and ninety dollar’s and seven cents, due August Maraist as syndic of the late firm of Broussard & Tertrou, according to the tableau of classification, with interest, etc., execution will issue for the amount.”

After the expiration of the ten days, a rule was taken in the succession of Thomas, by Maraist against Guilbeau, to show cause why he should not pay the amount of the demand, and, in default thereof, why an execution should not issue against him personally, and his property be seized and sold to satisfy the same.

Guilbeau excepted that the proceeding was not countenanced by law; and that plaintiff could not proceed by rule to obtain the relief sought by him. The exception was overruled, and thereupon the counsel of Guilbeau offered to file the peremptory exception of prescription of five and ten years. The bills of exceptions show that the offer to file this exception escaped the attention of the parish judge; and he proceeded to make the rule absolute. Guilbeau obtained an order of appeal ; but subsequently he moved to have the order rescinded, and for a new trial, which was granted. On the new trial the plea of prescription was maintained, and the rule was dismissed; and this is the judgment appealed from.

This entire proceeding is founded on a misapprehension of the law. Prior to the adoption of the existing constitution the clerks of court were authorized to homologate accounts; but the order of the clerk homologating an account was not a judgment against the executor or administrator in the sense of articles 1053, etc., of the Code of Practice. It is manifest that the account or tableau filed by Guilbeau did not propose to pay any sum whatever to Broussard & Tertrou. It would have required more than double the amount of money in the hands of the administrator as shown by that tableau to have paid the widow and children, and the costs of administration. No opposition was filed to this tableau, and the homologation, if it could be termed a judgment, was such a judgment as concluded Broussard & Tertrou, so far as the amount to be distributed as set down in the tableau was concerned; and so far from being a judgment in their favor, against the administrator, it was, if a judgment, one which cut them off from the hope even of any participation in that fund.

The creditors placed upon a tableau of distribution are concluded by the judgment homologating that tableau, so far only as the fund to be distributed under that tableau is concerned; and they can claim under the judgment of homologation only such sum as may be allowed them by that judgment. No sum was allowed to Broussard & Tertrou by the tableau, or by the order of the clerk homologating it; and they were placed on the tableau not in order that they might receive any part of the fund then in the hands of the administrator, but merely for the purpose of exhibiting and classifying the debts of the succession.

By the Code of Practice, articles 1053, et seq., the creditor in whose favor á judgment has been rendered, against a curator, or executor or administrator, for a sum of money, may proceed by notifying such administrator, etc., and by execution against his property, where he has funds of the succession in his hands and refuses or neglects to pay such judgment. The basis, the sine qua non of this proceeding is a judgment, for a sum of money, against the administrator, etc. As there was no such judgment in this case, there was no foundation, no legal warrant or authority for the proceeding by notice and rule; and it should have been dismissed on that ground. See Lockhart vs. Wall, 14 An. 274.

It is not necessary to pass upon the plea of prescription, because our conclusion is that the first exception taken by defendant, appellee, should have been maintained, and the proceeding dismissed; and we prefer to put onr decision upon, and to remit it to that ground.

Por the reasons stated in this opinion, the judgment of the parish court dismissing the rule and proceeding is affirmed with costs.

Mr. Justice DeBlanc having recused himself, takes no part in this decision.


author: Manninu, C. J.

text:
    No. 1018.
    Parish of St. Martin ex rel. M. Baker, Road Overseer, vs. Pelletier Delahoussaye.
    When the face of tho papers sufficiently present the issue involved in an appeal from a justice’s court, no statement of facts need appear in the record.
    The ordinance of a police jury imposing a fine on persons between certain ages for failing, or refusing to work on the public roads, is constitutional.
    APPEAL from the Justice’s Court, First Ward, parish of St. Martin. Easten, J.

      Mouton & Martin for plaintiff and appellant.

      E. Simon for defendant and appellee.
   On Motion to Dismiss.

The opinion of the court was delivered by

Manninu, C. J.

The appellee moves to dismiss for the reason, “that there is no statement of facts to be found in the rhcord of the testimony adduced at the trial, and shewn to have been offered, nor any assignment of error, nor any bill of exception,” and for the further reason that the certificate of the Justice of tho Peace does not state that the record contains all the testimony adduced.

The first ground stated would be unintelligible, but for our being able to divine its meaning from having seen the same phraseology in many of the transcripts filed here. The ground is, that there is no statement of facts of the testimony. This is a solecism. The only occasions when a statement of facts has a place in a record is when none of the testimony is in it. If the testimony is taken down in writing, (and that practice obtains universally in our courts now), it may and does serve in the stead of a statement of facts. Code of Practice, art. 601.

If the testimony has not been taken down in writing, then and then, only, the parties or their advocates must jointly draw a statement of the facts proved, and if they can not or will not do it, the judge must make the statement. Mem, arts. 602-3.

There are four modes by which this Court can review a case on appeal. 1. When the testimony has been reduced to writing, and is contained in tho record. 2. In the absence of the testimony, when a statement of facts has been made by the parties, or their counsel, or by the judge. 3. When there is a written exception to the opinion of the judge. 4 When a special verdict has been rendered. Idem, art. 896.

Most of the transcripts filed here call the note of evidence, ‘statement of facts’. How such a misnomer was ever made may serve for the speculation of the curious, but it is -apparent that tho mover here has made the same mistake, and that he means' to say by way of objection that there is no note of the evidence that was introduced to be found in the record.

The appeal is from a Justice’s court. There is no provision for taking down the testimony in writing in a justice’s court. He has no clerk; and the pleadings are oral. " The parties there, as in the higher courts, can agree upon a statement of facts, and it is their duty to do so. The justice is required to transmit the statement of facts thus agreed on to the appellate court. Idem, art. 1135.

We are satisfied none was made or agreed on in this instance, because the face of the papers sufficiently present the issue.

The motion is denied.

On the Merits.

The defendant was summoned to work on the public roads of St. Martin parish, and having refused, incurred a fine of one dollar for each day that he failed to obey the summons. The overseer of the road sued him for four dollars, the fines for as many days of delinquency.

The defendant pleaded a general denial, and the “ unconstitutionality of the tax levied upon him,” and there was judgment in his favor. The justice has furnished written reasons for judgment, which begin by properly reciting that the action is for the recovery of four dollars forfeiture or fines for having refused to work on the roads, but conclude by ruling that the ordinance of the police jury, imposing the fines, levies a' direct tax upon the people, and is therefore unconstitutional.

The justice is in error. Police juries are authorized to pass all ordinances relative to roads, and to impose such fines and penalties to enforce them as they may think proper, and these fines may be enforced by ordinary process in the name of the police jury. Eev. Stats, see 3364

The police jury of St. Martin passed an ordinance requiring persons between certain ages to work on the public roads, and imposed a fine of one dollar for each day of failure to work when required. The defendant incurred the penalty denounced by the ordinance, after having been duly summoned, and he must pay for his dereliction of public duty.

One of the surest tests of the civilization of a country is the condition of its public roads. Tears ago, at the termination of that period when able-bodied men were needed elsewhere than at home, there was good excuse for impassable roads, but there is no good reason now why those who are liable to road duty should not be made to contribute a part of their time and labor to relieving the country from the reproach of having highways which are a danger to the traveller, and an obstruction to those who have to transport produce over them.

It is ordered, adjudged, and decreed that the judgment of the Justice of the Peace is avoided and reversed, and it is further decreed that there be judgment in favor of the parish of St. Martin against the defendant Pelletier Delahoussaye for four dollars, and all costs of the lower court, and of this appeal.


author: DeBlanc, J.

text:
    No. 1020.
    Archie P. Williams vs. A. Garignes, Tax Collector.
    A livery stable keener who has paid as such, his State license tax, can not bo compelled to pay an additional license to the State on the hacks and buggies em- ' • ployed by him in his business.
    A PPEAL from the Parish Court of St. Landry. Fontenot, J.

      Kenneth Baillio for plaintiff and appellant.

      Jno. IV. Ogden for defendant and appellee.
   The opinion of the court was delivered by

DeBlanc, J.

In his capacity as tax Collector, defendant has seized and offered for sale two hacks and two buggies belonging to plaintiff, to satisfy the sum of sixty dollars, which said Collector claims as due to the State upon the vehicles thus seized, which — it is admitted — are used by plaintiff in his business as keeper of a livery stable in the town of Opelousas.

The intended sale of those vehicles was enjoined by the owner, on the grounds :

1. That there is no law which authorizes the levying of the licenses •claimed.

2. That, if there is such a law, it is unconstitutional.

Plaintiff, it is shown, has paid a license of twenty-five dollars, to pursue his occupation as the keeper of a livery stable, and he contends that no additional license can be claimed from him for keeping and hiring hacks and buggies.

The law under which the collector is attempting to collect these additional licenses is in these words: “ Prom each keeper of a livery stable or yard, or livery and sale stable, with stalls for horses or mules, twenty-five dollars ; for every public hack twenty-five dollars, etc.”

The stable, the ground on which it is built, the hacks, buggies and horses are assessed and taxed as property, in proportion to their value: an income tax is levied upon the keeper of the public stable, and he can not be compelled to pay — in addition to the tax — a license on every hack, buggy and horse which he owns, and without which he would be restricted in the pursuit of an already licensed occupation. As well might a merchant be licensed as such, and be made to pay, besides, a separate license to sell hats and shoes, a physician to carry a lancet, an attorney to keep the Codes in his office.

What is a livery stable ? A place where horses are groomed, fed and hired, where vehicles are let. Without horses and without vehicles a stable is incomplete. To keep a hack for hire is a calling: to keep a stable and several hacks is another, a different calling : both are taxed alike, and but one license can be imposed by the State on those who pursue but one occupation. Were it otherwise, every industry would soon be discouraged or prostrated.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed, and plaintiff’s injunction perpetuated at the costs of the Tax Collector.