author: Bermudez, C. J.

text:
    No. 8765.
    Thomas R. Wood vs. His Creditors.
    An appeal will not “be dismissed if the appellees have not been cited, where the petition prays for citation and where a provisional syndic appeals from a judgment denying him the right to render his account, through the court, to a definitive syndic. Such judgment is not an interlocutory, but is a final judgment, from which an appeal lies.
    A rule lies at the instance of a definitive syndic to compel a provisional syndic to render an account.
    The provisional syndic is not bound to render such account from, hand to hand, to the definitive syndic. He has the right of rendering it to the definitive syndic through the channel of the court, and of having all issues raised by oppositions to it adjudicated upon by the
    The ex-partc homologation of such account, regardless of an exception to the right of filing such account, is a nullity and may be disregarded by the court.
    APPEAL from the Twenty-sixth District Court, Parish of St. John the Baptist. Hahn, J.

      JD. JDe Poorter for J. Vignes, Appellant.

      Ghs. Louqtte for the Syndic, Appellee.
    Jos. I). Avgmtin for the Sheriff, Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The provisional syndic appointed by the lower court having appealed from several judgments, one ordering him to account to the definitive syndic, another rescinding the homologation of an account presented by him, and a last one dismissing the petition, submitting said account, as well as the account itself, the definitive syndic moves to dismiss the appeals on the ground that all the creditors interested in this insolvency should have been made parties, in ease of the eventual overruling of this ground, for the further reasons: that the provisional syndic is without right or interest to appeal, being a mere stakeholder, and that no appeal lies from such judgments, which aro interlocutory and work no irreparable injury.

1. The provisional syndic has, in his petitions, prayed for the citation of all parties in iuterest, and has thus protected himself. 32 An. 561, 655; 12 An. 112; 29 An. 822, 832.

, 2. The provisional syndic has a right to be discharged from all liability upon rendering a true and complete account- of his acts and doings in that capacity. He thinks that such account should be rendered through tho channel of the court, after public notification to all concerned, while the syndic is of a contrary opinion. The lower court has also taken that view. The provisional syndic has an undoubted interest at stake, namely: the protection of himself and of his sureties on his official bond. It is precisely because he is a stakeholder that he wishes to know, by a final adjudication contradictorily rendered with all possibly concerned, to whom he is to deliver the assets in his hands. He proposes, by his account, to do so to the court and to the creditors, while the definitive syndic claims that the assets are instantly to be turned over.to him, and that he is the one to distribute them. Had a judgment been rendered against a creditor and in favor of the insolvent estate, unquestionably the provisional syndic, having no personal interest involved, could not be permitted to complain of such adjudication. But this case is quite different. The fact that he is a stakeholder does not defeat his right to an appeal in a case such as he presents. By not appealing he may sustain an irreparable injury.

3. The judgment sustaining the exception filed to the petition presenting the account and dismissing both is not an interlocutory order but a final judgment, from which an appeal certainly lies. 2 M. 136; 7 M. 520; 3 N. S. 205; 16 L. 515; and 30 An. 1083.

The motion to dismiss is overruled.

On the Mkrits.

The question presented is simply whether a provisional syndic, who has assets in his hands, has- the right to render an account to the syndic by presenting it to the court, with mention of the active mApassive, of the insolvency and .prayer, that after due notification it be homologated and the funds be distributed accordingly,

It .appears, in this case, that the definitive syndic having taken a rule on the provisional syndic for an account and for the turning over of the assets to him, the latter, almost immediately thereafter, filed a petition addressed to the court, accompanied by an account, whereby he acknowledged to have received and proposed to distribute the sum. of $1,211.55. In conformity with the prayer, the court ordered that due notice be given of the rendition of the account, calling on all concerned to show cause why it shordd not be homologated and the funds distributed accordingly. Within the legal delay, au exception was filed, contesting the right of the provisional syndic to offer such an account. After the expiration of the ten days, on a certificate of publication and of no opposition, the Judge homologated the account and ordered the distribution of the proceeds. A motion was then made for a new trial and for the rescission of the decree of homologation and distribution. After trial the rule was made absolute and the decree was annulled and set aside. After hearing, the exception was sustained, and the petition and account were dismissed. From the judgments thus rendered the provisional syndic has appealed.

Sections 1792 and 1793 of the R. S. of 1870 are to the effect, that the provisional syndic shall do all conservatory acts and keep the assets as a deposit; that his administration shall cease on the nomination of a definitive syndic, to whom he shall render an account. 11 R. 28.

The law is not express as to the mode in which that account shall be rendered. It does not say that it shall he rendered from hand to hand. It implies that it shall he rendered in some legal form. It is possible that such account may be well rendered amicably, but it may also be, that creditors and others, not parties to such rendition, may attack it and oppose the discharge of the provisional syndic. It is not easy to discover what valid objection exists to the rendition of au account, as was done in this.

In the usual course of practice in succession matters, accounts by parties, who have ceased to be executors or administrators, are rendered through the courts, contradictorily with all concerned and after due publications. There is no reason why, in insolvency proceedings, which are in pari materia, the same form should not be pursued.

The Reports are not without a precedent. A provisional syndic was recognized the right of presenting such an account. Statements in such account homologated without opposition were, on appeal, considered established, and the value of the assets, on which a commission was claimed, was taken as correctly given therein. 11 An. 36.

If it be true that the provisional syndic has no authority to propose a repartition of the funds, as was done in this case, the issue should be presented, not by an exception to the petition submitting the account, but by an opposition objecting to the distribution. The want of authority to distribute does not imply the absence of right to render the account contradictorily with all concerned.

The action of the lower court on the rule for aii account ordering the same is not open to valid objection.

The decree of homologation of the account and the order of distribution were nullities, as they were rendered notwithstanding the exception, which should havo been taken as an opposition. The basis of the homologation in full was an erroneous certificate of tho clerk, deceptive in character. The District Judgo exercised a proper discretion in granting a new trial and, as a corrollary, in setting aside the decree and order.

We do not wish to he understood as passing favorably upon the right claimed by the provisional syndic of rendering the account in the manner and form in which it was prepared. That account is open to attack, as to its substance, by any party concerned.

We merely decido that the provisional has a right to render to the definitive syndic, through the channel of the court, the account which the law says he shall render, and to have the court to adjudicate upon all issues that may arise from oppositions to the same.

The judgment sustaining the exception, which dismisses the petition and rejects the account accompanying it, is erroneous.

It is, therefore, ordered and decreed, that the judgment appealed from, ordering an account aud rescinding the decree of homologation and the order for the distribution of funds, be affirmed.

It is further ordered and decreed, that the judgment sustaining the exception and dismissing, the petition and the account, be reversed j and

It is now ordered and decreed, that said, exception be -overruled, without prejudice to the right, if any, of the exceptor to oppose seasonably the account on any legal ground, and that this cause be remanded to the lower court for further proceedings according to law, appellees to pay costs of appeal and those of the lower court from the filing of the exception. • . • ■


source: Caselaw Access Project

author: Berjiddez, C. J. Fenner, J. Manning, J.

license: Public Domain

text:
    No. 8595.
    B. F. Carver vs. The Board of Liquidation.
    Xu the absence even of suggestion to the contrary, the Court will assume that bonds, signed more than thirty years ago by the Governor of the State and other officers, were executed . and issued in viitue of a power conferred by law and pursuant to its requirements.
    The act of the State in purchasing her own bonds for the redemption of her debt stamps the bonds thus purchased with the insignia of validity, conformity to law, and good consider* atiOD.
    Confusion did not ensue upon the State’s purchase of her own bonds, and if it did, the State cannot avail herself of it, because she held them out to the world at the second sale as her valid obligations.
    Oases will be decided on the pleadings of the parties and their omissions will not be supplied by the Court.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.

      F. L. Richardson and E. E. Magrvder for Plaintiff and Appellant.

      J. G. Egan, Attorney General, for Defendant and Appellee.
   The opinion of the Court was delivered by

Berjiddez, C. J.

This is an appeal from a. judgment directing the funding of five certain unmatured State bonds.

The petition substantially alleges that the bonds were acquired by plaintiff in open market, for a valid consideration and in good faith; that they were issued in strict conformity to law and not in violation of the Constitution of the State or of the United States, and that they are entitled to be funded under Acto of 1874; that the application made to that end was illegally refused by the Board of Liquidation,

The answer was a general denial. It was subsequently amended, It- specially charged that the bonds are not valid obligations of the State; that they were not issued in conformity to law and did not enure to the benefit of’the Stat.e; .that if they ever were valid obligations, they have been extinguished by confusion, by reason of the redemption thereof by the State; that the Act qf 1872, No. 81, under which it may be claimed that they have been sold and reissued by the State, is unconstitutional, null aud.void, and that the attempt to sell them was an act. of spoliation and divestiture of vested rights.

. The bonds averred in the petition are claimed to have been issued under the provisions of Act 176 of 1853, entitled.: /‘An Act to grant the aid of the State to the New Orleans, Opelousas and Great Western. Railroad Company by subscription to the stock thereof,”

... Under that Act the State was to subscribe for 48,000 shares foyone trillion two hundred thousand dollars, $1,200,000, or, one-fifth of the capital stock. . .

The Act declares that payment of said shares shall be made in bonds of the State in manner and form as provided by law.

In 1874 Act No. 3 was passed providing for the funding of obligations of the State by exchange for bonds.

In 1875 Act No. 11, E. S., p. 110, was passed to supplement the Act of 1874.

The second Section of the Act of 1875 reads: “that the following issue of bonds and warrants, so far as the same may be now outstanding, are declared questioned and doubtful as to their legality and validity, and said Board of Liquidation are hereby prohibited from issuing bonds, authorized by Section one of the Act No. 3 of 1874, in exchange therefor, until the legality, validity and consideration of the same shall have been tested under the provisions of this Act and a final decree rendered as to their legality, validity and consideration.”

The second paragraph of the Section declares that the bonds alluded to and thereafter specified are considered and held as belonging to the redemption of the State debt funds and the free school funds, and are bonds of the State of the various issues which had been redeemed or never issued, and which have been reported by the auditor of public accounts as missing or which were sold under Act No. 81, approved May 25, 1872, and issued or reissued.

The Section next proceeds to enumerate the bonds considered ‘‘questioned and doubtful.” Among those named éonsincuously figure those, in aid of the New Orleans, Opelousas and Great Western Railroad Company for $79,000, of which the bonds declared upon are said to form part.

Under the provisions of Section first of the same Act of 1875, as well as under his specific allegation, which is in the very words of the statute, and .particularly in the presence of the special denial of the Board of Liquidation, and of the strong reflection cast upon his bonds, it was the duty of the plaintiff to prove that they had issued in strict conformity to law, not in violation of State or Federal Constitution, and for a valid consideration.

In this he has failed.

There is no evidence that the State ever subscribed for the stock, and the bonds do not show on their face that they were issued under the authority of Act 176 of 1853, or in consideration of stock subscribed, in furtherance of that Act.

The presumption that all conditions precedent for the issue of the bonds had been complied with, when they are uttered, does not exist as an invariable rule. It certainly cannot be invoked where, as is the case in the present instance, the bonds do not even refer to the law of 1853, under which it is claimed they were issued, Generally the recitals in bonds not only refer to the law relative to tlieir issue, but contain, at least on the reverse, either the entire law, or an .extract from it. It is not until after the identification lias been shown, tlxat the reissue under the Act of 1872, No. 81, can be claimed to have taken place. The bonds reissued and claimed to be valid must be proved to have originally issued in conformity to law.

The consideration, which the Funding Acts require to be proved, is not that given by the holder of the bond who seeks payment, but that received by the State at the time of the issue. The plaintiff cannot claim that the burden was upon the State to prove want of consideration. By submitting Mmself to the requirements of the Acts he has assumed to prove that the bonds were issued in strict conformity to law and for a valid consideration received by the State. That, he has not done at fill.

In the case of Lord Cecil et al., 30 An. 34, this Court held that bonds of the State, which are described in the supplemental Funding Act of 3875 as “ questioned and doubtful,” cannot be legally funded by the Board of Liquidation until they have been scrutinized and declared valid by this Court, upon whom rests the responsibility.

It was there held that although such bonds be negotiable inform aud have passed into the bands of innocent third persons; who have purchased them in open market, before their maturity and for a valuable consideration, they nevertheless will not be a valid debt of the State, unless the holders affirmatively prove that they were issued in accordance with law, and for a valid consideration.

The rule of the commercial law iu favor of the holders of ordinary negotiable paper is not applicable to such bonds.

As the plaintiff lias not shown that the bonds which he holds were issued in strict conformity to law and fora valid consideration received by the State, be must fail in this appeal.

■ It is, therefore, ordered and decreed, that the judgment appealed from be reversed, and that this case be remanded for further proceedings according to law.

Dissenting Opinion.

Fenner, J.

My reading of the supplemental Funding Act of 1875 convinces me that it does not intend or purport to raise any question as to the original validity, legality or consideration of the bonds issued under the Act of 1853 in favor of the New Orleans, Opelousas & Great Westera Railroad, or as to the constitutionality of that Act. Under the plain terms of the supplemental Funding Act, it only questioned ü small part of said bonds, which, having been taken up or held by tlie State, had been sold and reissued under Act 81 of 1872, and on that ground alone. It is equally clear, that the only issues intended to bo raised by the answer of the defendant in this case were the constitutionality of the Act of 1872, and the legality, validity and consideration' of the reissuance of said bonds under said Act. This is apparent from the briefs filed herein by both parties, in which the issues last Stated are the only ones referred to.

The Court remands the case for the examination of questions never raised or referred to by the pai'ties or suggested by the Funding Act.

The genuineness of the bonds presented is undisputed. It is notorious that all bonds of the same class have been funded, except those questioned by the supplemental Funding Act, for the reasons therein Stated.

I think the proper issues in the case should be decided, and that in remanding the cause, for the purposes stated in the majority opinion, we impose upon relator a duty entirely superfluous, and which, owing to the lapse of time, may possibly be difficult of performance.

. I, therefore, dissent.

On Rehearing.

• The opinion of the Court was delivered by

Manning, J.

The bonds offered for funding by the plaintiff aro signed by Governor Hébert, by the Auditor, Treasurer, and Secretary of State. The genuineness of none of these signatui’es is denied, or in-any manner questioned. The form of the bond is literally copied from the Act of 1853. In the absence even of suggestion to the contrary, we must assume that bonds, signed nearly thirty years ago by the Governor and other State officers, were executed and issued in virtue of a power conferred by law, and pursuant to its requirements. Hamlin vs. Bd. Liq. 30 Ann. 447.

In remanding the case wé required proof that the State subscribed for the stock of the Railroad Company, and that the bonds were issued in payment of that subscription. We are now satisfied this was error. It is virtually requiring an impossibility, since at this interval with the derangements that have occurred in it, such testimony is not accessible, but if it was at hand, it is raising an issue outside of the pleadings, and requiring proof the production of which the defendant waived.

The question raised by the answer is the alleged confusion, consequent upon the State buying up these bonds after they had been issued, and the alleged illegal resale of them under the Act of 1872. That Act has been declared unconstitutional quoad the bonds belonging to the Free School fund, (Durant’s case, 29 Ann. 77) but the proof in this record is complete that the plaintiff’s bonds never formed a part of that fund, and iu Sun Ins. Co. case, affirming Durant’s, three of the eleven bonds then offered were found not to have belonged to that fund, but to have been sold under the Act of 1872, in both features like the bonds now offered, and the Court ordered them funded. Sun Ins. Co. vs. Bd. Liq. 31 Ann. 175.

Of the bonds sold under the Act of 1872, over a million dollars in amount belonged to the school fund, the others to the fund for the redemption of the State debt. The bonds of the plaintiff were in this latter class. Many years after they had been issued and been put on the market, the State bought them with the fund she liad created for the redemption for her debt, and they were in possession of her officers Avhen sold again under the Act of 1872. She would not have bought invalid bonds, or bonds that had not been primarily issued in strict conformity to law, or that were otherwise tainted. Her own act in thus purchasing them for her own purposes stamps the original issue of them with the marks of conformity to law, constitutionality, and valid consideration.

It is therefore manifest that the inquiry as to the legality and validity of these bonds, and others in comimili cam, directed to be made by the supplemental funding Act of 1875, refers to the sale of them and reissue under the Act of 1872, and it is so treated in the pleadings and in the briefs on both sides.

Confusion did not ensue on the State’s purchase of them prior to 1872, or if it did, the State cannot avail herself of the plea since she held them out to the world as her obligations for a second sale. The. constitutionality of the Act is attacked because its title does not indicate the creation of a debt. The debt had been already created in the shape of “ State warrants and certificates of indebtedness,” and the title includes the creation of “a fund for the payment” of them. Another objection is that the General Assembly was prohibited from contracting a debt exceeding a hundred thousand dollars without providing adequate means of payment in the same law. No new debt was contracted by the Act of 1872, but means were provided b,y it for the conversion of a debt already existing into another—the substitution of one kind of obligations to another, a change in the instrument evidencing the debt. With the policy or impolicy of that legislation we have nothing to do. We have been often compelled to recognise and enforce legislation that did not commend itself to our judgment, but Ave should no more trench upon the legislative department of the government than we would permit it to intrude into our sphere.

As was said in Hamlin’s case supra, the question which alone interests the State and which the supplementary funding Act directed to be determined contradictorily with the Board of Liquidation, is whether the bond presented for funding is a valid obligation of the State, and as such entitled to be funded. The bonds of the plaintiff conform to the requirements of that Act and should be funded. Therefore,

It is ordered and decreed that our former judgment be set aside, and that the judgment of the lower court is affirmed with costs.


author: Todd, J.

text:
    No. 8753.
    Successions of Jean Webre and of his wife, Dorothée Deslattes.
    A husband may convoy to his. wife his interest as beneficiary heir in a succession. Sncli interest is susceptible of delivery, though the succession, at the time, is under administration. Kor does the wife, by a purchase of such interest, bind herself for her husband’s debts. A recognition of such transfer by the administrator in his accouut, and his proposal to pay the fund representing such interest to the wife, is evidence sufficient of his' receiving notice of such dation. Do notice to the co-heirs is requisite.
    APPEAL from the Twentieth District Court, Parish of Lafourche. K’iiobloelc, J.'

      Moore & JBadeanx for Opponent and Appellee :
    i.

      First. Delivery is not the mere consequence, but is the essence of a dation enpaiement. 0. C. 2656 ; Pothier, Contract of Sale, par. 602; 3 M. 226,269; 12 La. 375; 20 An. 282 ;-21 An. 322; 27 An. 616 ; 28 An. 308; 30 An. 1114.

      Second—(a) A thing not susceptible of delivery cannot be the subject of a dation m paiement.

    (&) An heir’s undetermined and residuary interest in a succession under administration cannot be the subject of a dation, because there can be no delivery until that interest is fixed and determined. 24 An. 85.
    (¿) Property in expectancy maybe the object of a contract of sale, but not of a dation en pm'ement, as the latter requires delivery. 3 La. 154; 15 An. 165; 19 An 17.

      Third. The residuary and undetermined interest of an heir in a succession is a movable. 31 An. 748; .12 An. 864.
    Fourth. There is no synonymy between “ residuum ” and “ entire,” hence, when an heir’s rights are limited to his claiming the residuum of a succession (if any residuum exists) • after the payment of debts and charges, that right can never be considered “ an action to recover an entire succession.” 2 It-1»

      Fifth—(ct) As a general rule- the tradition of immovables is considered as always accompanying the public act of transfer, “but from this general provision those cases must be excepted in which there is an evident legal obstacle to the delivery. The law cannot . consider that as done which cannot be legally done.” Emerson et al. vs. Fox et ale., 3 La. 181.
    (&) “ The tradition or delivery is the transferring of the thing 6old into the power and possession of the buyer.” C. G. 2477.

      (c} As long as the succession of the ancestor is under administration for the purpose of paying debts, as this succession is, the heir cannot dispossess the succession representative without first tendering the amount necessary to pay the debts and charges of the succession. It is optional with them to do so, but they cannot take away the seizin without complying with this essential prerequisite. 33 An. 605, and cases there cited.
    {d) In the instant case, the heir, the transferrer, had not complied with this “essential” prerequisite. He had, therefore, no “ power ” over and “possession ” of the thing given in payment, and, therefore, could not transfer any “ power and possession ” unless it be said that the transferree acquires greater rights than the transferrer had.
    (e) Hence, though the thing given in payment he an immovable, there “existed a legal obstacle to the delivery,” and the case is “excepted from the general rule that delivery accompanies the public act of transfer. The law cannot consider that as done which cannot be legally done.” 3 La. 181; see Pothier, Contrat de Vente, No. 318; 31 An. 747.

      Sixth. If it be said that the transferree was given the “ power ” to go into “ possession ” by complying with the “essential prerequisite,” the answer is that she did not avail herself of that “power; ” and if she did, by either paying or offering security-for the debts duo by the heir, (her husband and transferrer) sbe would simply have been contracting and binding herself for her husband’s debts, which she is prohibited by law from doing. [See infra.]

    Seventh—(a) The tradition of incorporeal rights is to be made either by the delivery of the titles and of the act of transfer, or by the use made by the purchaser with the consent of the seller.' C. C. 2481.

      (b) No titles were delivered and no “ use” whatsoever was made by the purchaser, with or without the consent of the seller, of the thing given in payment.
    (c) To constitute a delivery under this Article there must be both the trausfer of the “ titles and the “use.” See Boileux, Vol. 5, p. 645.
    IL

      Mrst. A sale by an heir of his interest in a succession is an acceptance pure and simple. 0. C. 1002, 988,1013; 29 An. 348.

      Second. A succession consists of rights and obligations, (C. C» 871 et seq.) hence, a purchaser of a succession interest buys the rights and binds himself for the obligations of tho heir whose interest he has purchased. 6 R. 488 ; 31 An. 747; 34 An. 952; Halloa et Verge Code Civil Annoté, Art. 1696, Nos. 51, 55; Pothier, Vente, Nos. 541, 546,530.
    III.

      Mrst—{<&) The transferree is only possessed against third persons after notice has been given to the debtor. O. C. 2643.
    (5) The co-heirs are the debtors. Gilbert & Sirey, Codes Annotés, Art. 1690, No. 2.

      Second. Registry is not notice sufficient to bind third persons. 5 N. S. 181.
    IV.

      First The interest of the vendor is shown to be worth triple the amount for which he as sumed to sell.
    V.
    First. Where there has been no delivery, the judgment creditor may seize the property of his debtor without resorting to the revocatory action. C. C. 1023; lAn, 59; 12 M. 250; 18 An. 606 ; 16 An. 286; 26 An. 383 ; 21 An. 194, 414; 6 An. 753.

      Second. Publication of the filing of an account and tableau is citation to heirs and creditors* 10 R. 118; 18 An. 263; 29 An. 378*

      Third. An opposition to a tableau of distribution is an answer* 28 An* 607.

      Fozirth. Our seizure properly made* 31 An* 741; 32 An. 594.

      J. 8. Goode for Mrs. L. Webre:
    The rights of Mrs. Leonard Webre, the assignee, accrued prior to the claims of the opponent, Herwig; and the latter’s judgment against the husband was of date subsequent to that of the transfer which it is sought to annul. A creditor is absolutely without legal right to contest the rights of parties under a contract antedating his own claim. 32 An, 1150*

      Xbe present is virtually an incidental and collateral attack upon a contract, as to which not only is fraud or simulation not alleged, but which it is admitted is perfect in form, and based upon a bona fide and sufficient consideration. Without pleading fraud or simulation • to annul a contract, nob absolutely void upon its face, a direct action is always indispensable. 15 An. 177, 321, 302, 553; 19 An. 53; 18 An.166; 6 An, 688; 21 An. 271; 20 An. 41; 30 An 374; 23 An. 40* 23 An. 260; 23 An. 175, 772; 24 An. 224; 25 An. 35; 29 An. 12; 30 An. 511; 32 An- 506; Louque’s Digest, p. 483, Sec. 21.
    A contract will not be annulled in the absence of one of the principal parties to it. Leonard. Webre, the vendor, has nover been cited, and is not before the court.
    There lias been no legal seizure made by tho s-heiifl’ under the judgment of the opponent. At the date of that pretended seizure of the property in quostúm it was no longer in a state of indivisión, but consisted of specific artioles—money and notes. The former could only, he reached under garnishment process, and the notes themselves should have been seized. 18 An. 57; 6 R. 345; 16 An. 105; 7 R. 500 ; 2 An. 338, 785, 910 ; 28 An. 124; 3 An. 390; 4 An. 369; 6 An. 531, 581.
    Opponent cannot consistently claim a privilege by virtue of his seizure when the possession of the sheriff has been identical with that derived by Mrs. Leonard Webre, under the transfer, the nullity of which is sought for the want of possession. In both instances the possession was constructive, and followed the act by operation of the law itself.
    It is the policy of the 1 iw to guard with jealous care the rights and interests of minors and. married women. All doubts aro construed in their favor, and as to them the doctrine of estoppel has no application. 8 An. 484 ; 27 An. 341. • .
    Tho law favors dations en paiement when honestly made.' 22 An. 328.
    “Two essentials are requisite to the validity of a dation en paiement by the husband to the wife: 1st, that tbe husband should be really indebted to her; 2d, that the fair value of the property should not exceed the amount actually due to her." (Lehman, Abraham & Co. vs. Levi, 30 An. 750,* 23 An. 103.) Leonard Webre’s interest in his mother’s succession, as shown by tho tableau, is $3,330.55. Her claims against her husband at the date of tho dation is admitted to have been $3,796 27.
    A sale by authentic act from the husband to the wife will erase all mortgages subsequent in rank to lier’s—an exception in legal practico. 26 An. 593; C. C. 2399, 2402, 2421; 8 An. 484; 27 An. 341; 22 An. 321 ; 33 An. 532.
    All persons have the capacity to contiact,.except those whose incapacity is especially declared by law. O. C. 1782.
    A contract of sale from the husband to the wife may legally be made to replace her dotal or other effects alienated. The word sale is not found in the Article, which provides for a transfer of property. C. C. 2446.
    Incorporeal objects may he sold—-" such as a debt, an inheritance, a servitude, or any other rights." C. C 2449 ; 24 An. 85 ; 20 An- 292, 669 ; 31 An. 741.
    Four essential ingredients constitute a valid sale: 1st, capacity to contract; 2d, consent; 3d, a certain object; 4tb, a lawful purpose. It is admitted that all these essentials exist as to the contract now in question. C. C. 1779.
    The registry of authentic act constitutes within itself delivery of possession. 30 An. 968 j 32 An. 1152.
    A dation en paiement is hut a technical expression, and such a contract may bo made in tho form of an ordinary sale. C. C. 2446; Rabassa vs. Castein, 5 An. 493.
    A judicial acknowledgment dispenses with the necessity for a previous service of notice. Prior to Herwig’s seizure the administrator acknowledged that he had taken cognizance of the transfer from Leonard Webre to bis wife, and refers to the hook and page of the registry. Vide record, pp. 5 and 11.
    A sale from a husband to his wife of his residuary interest as an heir, involves no assumpsit by her of his debts. The residuum only is conveyed, and the wife takes the property cam onere. It is no assumpsit even when property is transferred burdened with a superior mortgogp. Bowman &, Co vs Eaton and Wife, 27 An,341; Levy, Executrix, vs. Morgan, 33 An. 532 ; vide 27 An. 503 ; 30 An. 1067; 31 An. 741; 32 An. 849.
    The eventual and residuary interest of an heir in a succession may not only he an object of sale, hut Is susceptible of being mortgaged. It is an entirety—one and indivisible—aüd is realty immovable in its nature. C. C. 463, 471; C. P. 45,164,165; Bormeau vs. Poydras 2 Bob. 1; Marcenaro vs. Moidella, 10 An. 776; David Bone vs. Sparrow, Curator, 11 An. 185 ; Weber vs. Ory, Administrator, 14 An. 537 ; Hickman ve. Ercrefc, 30 An 1069.
    il When an heir becomes tlie joint proprietor of mortgagable hereditary property, the mortgage resulting from the recording of a judgment against him attaches to bis part or portion thereof, subject, however, to the prior debts and mortgages of the succession, and its enforcement is dependent upon the final settlement of the succession.”
    “ The answer depends on the solution of the primary question whether or not a judicial mortgage attaches to the undivided share of an heir in the mortgagable property of a succession. Some doubt is cast upon this point, in the opinion of two of the Judges, in giving the decision of the majority of the Court in the case of Voorhies vs. DeBlanc, 12 An. 864 ; but an examination of that case will show that the point was not decided, nor was it directly presented.” Succession of Widow Tureand, 21 An.253; 12- B. 450; 3 An. 34, 36; 9 An. 212; 12 An. 236; 19 An. 167; O. C. 3268, 1434 ; 3 An. 546; 7 An. 9, 612.
   The opinion of the Court was delivered by

Todd, J.

The facts underlying this controversy are briefly these :

Jean Webre died in the Parish of Lafourche in 1874, leaving a sur-, viving widow in' community, Dorothée Deslattes, and twelve children, of whom Leonard Webre was one.

On tlie 25th of January, 1882, Dorothée Deslattes, the surviving widow, also died. An inventory of the two successions was made on. 1-lt.h February following. , _

On the Kith of same month Leonard Webre, one of the children and lieirs of the two deceased, as stated, by an act of elation en tenement conveyed to his wife, Mary A. Frost, his interest in bis mother’s succession, as a beneficiary heir thereto, the delivery of -which was acknowledged and the act duly recorded on same day.

, The consideration of the transfer was a debt owing by the husband to the wife—of which there is no dispute—-and the price stipulated ■ was the estimated value of the interest sold, according to the inventoried appraisement.

On the 2d of March following, an administrator was appointed to the two successions.

After having caused a sale of the plantation—-which constituted the principal property of the successions—on the 30th of December, 1882, the administrator filed a provisional account and tableau of distribution of the funds in his hands.

In the account he recites that Leonard Webre had sold his right and interest in his mother’s succession to his wife, Mary A. Frost, and proposed to pity this interest, to the extent of the funds to he distributed, to her.

After the filing of this account, and on the same day, Herwig, a judgment creditor of Leonard Webre, caused to be seized under a writ of fi.fa. this interest of Webre purporting to have been transferred to his wife, and on the 9th of January, 1883, filed his opposition to the account, wherein he claimed- that this interest, or the fund representing it in the administrator’s hands, should be paid to him by virtue of his said seizure.

There was judgment recognizing this claim of Herwig, and ordering the fund designated to be paid to him, in preference to Mrs. Webre) and from this judgment Mrs. Webre has appealed.

The grounds of opposition urged in the court of the first instance and in this Court to the claim of Mrs. Webre to the fund in question by Herwig, and of his better right thereto, under his seizure, are substantially these:

1. That the dation of Leonard Webre to his said wife was invalid and inoperative, because there was no delivery to her of the thing or right sold; and that the same -was not susceptible of any kind of delivery.

2. Because, by the purchase of her husband’s interest in his mother’s succession, she, the wife, by legal implication, assumed the payment of her husband’s debts therein, which rendered the act null and void.

3. That no notice of the transfer of the right in question was given to the debtor.

4. Because the price or consideration of the transfer was inadequate.

Mrst. The Code in the 2d chapter, under the title of “ sale,” author- - izes a contract of sale between husband and wife under circumstances shown to exist between the spouses in this instance. It treats of, or virtually designates, the transfer therein mentioned as a sale. C. C. 2446 ; 5 An. 493.

' Not only corporeal objects may be sold, but incorporeal things, such as a debt, an inheritance, a servitude, or any other rights. C. C. 2449.

It cannot be controverted, that whatever may be the subject of a sale may also be the subject of a giving in payment, for the main difference that the law recognizes between the two contracts is, that the former is perfect by mere consent of the parties, whilst the latter “is made only by delivery.” C. C. 2655 ; 20 An. 282.

It may also be regarded as axiomatic, that whatever the law permits or authorizes to be sold can be delivered, that is, is susceptible of some mode of delivery.

Where the thing sold is corporeal, a tangible, movable thing, there can arise no difficulty in understanding and fully appreciating the meaning of delivery with respect to it) for the Codei declares “that this tradition (delivery) is the transferring of the thing sold into the power and possession of the buyer.”

Where the thing sold consists of an incorporeal right, as in this instance, a “right of inheritance,” an interest in a succession, the only delivery that can he made is a constructive delivery; but such delivery when made is as effective as the actual delivery of a tangible object.

Art. 2481 declares: The tradition ' of incorporeal rights is to be made either by the delivery of the titles and of the act of transfer or by the use made by the purchaser, with the consent of the seller.” In this case the delivery was acknowledged in the act; the act was passed before a notary and duly recorded, which involves the delivery of the act; it sets out at length of what the succession consists, with a description of the property composing it, and of the vendor’s claim thereto by inheritance, and defines his share. There was no other title, under the terms or meaning of the Code, to be delivered.

No express proof of any use made by the purchaser of the right transferred, as- the Article suggests, appears in the record, bat it is shown that the administrator of the succession, who might he regarded as the custodian of the right, recognized the purchaser as the owner of it, and so reported in his account, and it is to he presumed at the wife’s instance; and this might he construed as a use made of the right—the procuring its recognition.

If the delivery is to be governed by C. C. Article 2643, cited by op- ’ ponent’s counsel, which, in referring- to transfers of rights or claims, provides “ that the transferree is only possessed, as regards third persons, after notice has been given to the debtor of the transfer having taken place,” whilst the applicability of the Article to the instant case might be questioned, from the doubt that naturally arises as to the existence of a debtor, with reference to a right of this kind, still the administrator, rather than the heirs, might more properly be regarded as such debtor, since the fund in dispute is in his keeping and is to be paid out by him.

There is no evidence of the service of a notice of this transfer upon the administrator, but he did have notice of it, and notice before it purports to have been seized, for he makes express mention of it and fully recognizes it in his account, as before stated.

•Our conclusion on this point is, therefore, that the right sold was susceptible of being conveyed by a elation en, paiement, and that there was a tradition or delivery of the right, within the meaning and intendment of the Code, before any seizure of the same was made by Herwig, the opponent.

Second. It is true that Article 1002 of the Civil Code declares that a sale, made by one of the co-heirs of a succession of his right thereto, is considered to be, on his part, an acceptance of the succession ; and inasmuch as by Article 1013 of the Code, a simple acceptance of a succession by an heir binds him personally to pay the debts of the succession, it is argued that the purchaser of the right assumes the liability of the heir, From this it is further argued, that as the wife in the instant case was the purchaser, such purchase involved the assumption on her part of the husband’s debts or liabilities, and such assumption being in contravention of a prohibitory law, is void, and renders the purchase a nullity.

This entire argument pre-snpposes that this sale or conveyance by the heir in this instance, from which his acceptance of the succession pure and simple is deduced, was made when no act or proceeding had taken place that entitled him to the benefit of inventory; but that upon the opening of the succession he had assumed the quality of an heir, unconditionally and without qualification, by going forward and selling his interest in the succession. The authorities cited by the counsel refer to the liabilities of an heir who thus unconditionally’ accepts and the obligations of the purchaser who buys under these circumstances.

In the instant case we find, however, that one of the heirs had applied for an administration of the succession, and that an inventory of the same had been made before the elation from Leonard Webre to his wife was passed, and that a few days thereafter the administrator was appointed and qualified. In the act in question Webre declared himself a beneficiary heir and conveyed only his rights as such. The previous application for an administration and the taking of the inventory entitled him to the benefit of inventory and fixed his status or capacity as that of a beneficiary heir. As such ho was not bound for the debts of the succession beyond the assets thereof, and his transferree, of course, was not bound to a greater extent.

The wife simply purchased the right or interest of her husband in the succession subject to the payment of its debts—his residuum, in other words—and bound herself for nothing. There is, therefore, no force whatever in this ground of the opposition.

Third. From the remarks we have made on the first point of this opposition it will appear, that if any notice of the conveyance of Webre’s interests to his wife was necessary, it was to be given to the administrator, as custodian of this interest, and that the account of this administrator explicitly declared that the fact of such transfer had been made known to him, and was duly recognized by him. A notice to his co-heirs would have been without meaning or significance.

Fourth. The evidence does not show that the consideration of the transfer was wholly inadequate and out of proportion to the value of the interest conveyed 5 on the contrary, the transfer appears to have been made at the valuation fixed by the sworn appraisers who made the inventory, and whose estimate is not contradicted by opposing evidence.

There has been a great deal of discussion by counsel on both sides, as to whether this interest sold was a movable or an immovable; but 'under the views we entertain of the matters in controversy, as already expressed, we do not think this question properly arises, or is necessary for our determination.

Por these reasons our conclusion is, that the opposition of Herwig' was improperly maintained.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court, in maintaining the opposition of Philip P. Herwig to the provisional account and tableau of Edmund Webre, administrator of the Successions of Jean Webre and Iris wife, Dorothée Deslattes, be annulled, avoided and reversed; and that the claim to the fund, proposed in said account to be paid to Mrs. Leonard Webre, preferred by the said Herwig, be rejected, and his opposition dismissed at his costs 'in both Courts.


author: Poché, J.

text:
    No. 8655.
    James McConnell vs. The City of New Orleans.
    Ordinances of fcbe City Council of atfew Orleans recognizing the claim of an attorney, vrho had "been employed us special counsel of the City in important litigation, and. providing for part payments of his fees, interrupt prescription on the claim.

      A contract couched in clear and unambiguous terms cannot be avoided as moaning a different agreement than the terms used import, and the letter of the contract must prevail, instead of invoking the remote intent of the parties.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Sam'l P. Blana for Plaintiff and Appellee.

      Chas. F. Buck, City Attorney, for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff seeks by this suit to enforce payment of the amount due him by the City of New Orleans as compensation for his ■services as her attorney in the defense of numerous suits of immense magnitude, all growing out of the celebrated Gaines case.” The amount claimed is $60,263.30, subject to a credit of $2,500 paid to him in the year 1881, and the City appeals from a judgment in favor of plaintiff'for the full amount of his claim.

The plea of prescription of three and of ten years, set up in the lower court is virtually abandoned on appeal, and could not have been maintained under the evidence in the record, which exhibits numerous ordinances of the City Council, recognizing the claim of plaintiff for fees due him in the “ Gaines case,” and making provision for the partial payments of the same.

In point of fact, a correct interpretation of the last ordinances of the City Council on the subject of plaintiff’s claim would justify the conclusion that nothing' is left for judicial action in this case but the pecuniary value of his services, which have never been fixed in any agreement or contract with the City Council.

By an ordinance of the Council designated as No. 7220, passed in July, 1881, it was resolved :

That the sum of twenty-five hundred dollars ($2,500) be and the same is hereby ap>propriaied to James McConnell, Nsq., on account, for professional services rendered in the Gaines case, as detailed in his letter of June 16, 1881 ; provided that the amount of said indebtedness shall be hereafter determined by two competent experts without delay, one to he selected by the mayor of the City of New Orleans, and the other by the said McConnell, and in the event of their failing- to agree, said experts to select an umpire whose decision shall have the force of the thing adjudged between the said pariies; and the administrator of public accounts warrant'on the administrator of finance in payment of this appropriation whenever there shall he money in the City treasury to the credit of the proper fund and not otherwise appropriated.”

This ordinance was amended on January 24th, 1882, by an ordinance designated as No. 7580, as follows :

“Be it resolved, that Ordinance No. 7280 be so amended that, in lieu of the appointment, of experts as therein provided, the amount of said indebtedness shall be determined judicially without delay.”

In the case of an ordinary litigant, we would unhesitatingly confine the issue to an examination into the value of the services rendered by plaintiff, hut in the case of a corporation like the present defendant, we have deemed it our duty to consider and to pass upon the defenses which are found in the City’s answer.

1. It is urged that all the compensation which plaintiff is entitled to has been determined in an authentic contract passed on the 12th of February, 1866, between the City and plaintiff and his associate, the late Hon. Miles Taylor, in which they were retained a,s the counsel of New Orleans, to represent and defend the City “ in all suits instituted by Myra Clark Gaines, wherein the City stands in the relation of warrantor of the defendants, or a party,” and in which contract they stipulated a final compensation of twenty-five thousand dollars.

The services claimed for in this suit were rendered in suits not pending at the date of the contract, and in matters which originated after final decision had been rendered in the suits which were pending at the date of the contract, and which, in our opinion, were obviously the only suits contemplated by the contracting parties.

It would indeed he a very strained construction which would have bound these'attorneys as counsel for the City in all suits which could in the early or in the remote future grow out of a litigation of such a magnitude as to involve the titles of countless homes in and around ths City of New Orleans.

On this point the evidence, is simply overwhelming against the position assumed in this defense. The numerous ordinances adopted in the Council from the year 18G9 to 1882, touching the employment of plaintiff as the attorney of the City in these, cases, and providing for his future compensation, are in themselves a complete refutation of the City attorney’s argument on this point.

■ 2. It is next urged that the item of $15,000 claimed for services rendered in what is termed the “ probate suit,” cannot be allowed, for the reason that plaintiff had agreed to make no extra charge for that suit “ except in the contingency that the Supreme Court of Louisiana shall decide that case against Mrs. Gaines and in favor of the City of New Orleans,” and that such a stipulation meant the contingency of a successful termination of the suit, and that the contingency was defeated by a judgment in favor of Mrs. Gaiues rendered by the Supreme Court of the United States, on error from the State Supreme Court.

While it is true that no one, including plaintiff, ever imagined at that time the possibility of a federal court assuming jurisdiction in probate matters, and that a decision in this Court on such a question might have been reasonably contemplated as final by the Council, as well as by their attorney, yet we see nothing ambiguous in the stipulation which would require judicial interpretation in face of the clear language used in the agreement.

If considered of doubtful meaning by the City authorities, the stipulation should have been explained by testimony showing a contemporaneous interpretation of the agreement as a test of the intent and meaning of the parties to the contract. No such evidence has been introduced by the defense. On the other hand, plaintiff in his testitimony says emphatically that he meant precisely what he said, and limited the contingency to a judgment of the Supreme Court of the State of Louisiana, and that the language was so used purposely, becanse lie was not willing to take tlie risk of a writ of error to tlie Supremo Court of the United States.

We think that the point is not sustained by either tlie evidence, tlie law or reason.

3. There is no force in tlie objection that the judgment in this caso could not be executed but from the revenues of the year or years during which bis services were rendered.

We are not now concerned with tlie mode of executing the judgment which we may render in the case.

Tlie issue must be confined to the liability of the City to compensate plaintiff for the services ou which lie bases his claim. The evidence satisfactorily shows the immense scope and value of the services rendered by plaintiff in tlie Gaines case,” and fully justifies tlio judgement rendered in liis favor by the lower court.

An enumeration of the details of those services, and of the amount claimed for each separate suit or matter, would serve no useful purpose, and would drag this opinion to a length somewhat proportionate to the twelve hound volumes of closely printed matter making up the records in the various suits growing out of the Gaines case.”

Tlie judgment of the lower court is correct, and is, therefore, affirmed with costs.

Bermudez, C. J., takes no part.


author: Fenner, J. Pochjí, J.

text:
    No. 7995.
    W. C. Raymond et al. Commissioners, etc., vs. Edward C. Palmer et als.
    Officers and directors of a corporation are mandataries, and. as snob liable to tlie corporation for injuries to it resulting from'their breaches of duty.
    They aro likewise liable for trespasses, frauds, deceits and other wrongs which they may commit against third persons. Commissioners or receivers appointed to liquidate a corporation may assert all corporate rights against unfaithful directors. They, likewise, to a certain extent, are representatives of creditors, and may, in certain cases, vindicate tho rights of the latter ,* but they can exercise no actions cf this character except such as pertain to tho creditors ut wniveni, and not those which pertain to them ut nüiguli.

    Analysing the various acts charged in the petition herein against the defendant officers and directors, many of them are found to import injury only to particular creditors or stockholders, whose rights the receivers cannot champion; others are set forth too vaguely and insufficiently to sustain the action.
    An application by a plaintiff, whose petition has been dismissed because it disclosed no cause of action, for leave to amend his pleadings, comes too late and must not be entertained. 34 An. 328, reaffirmed.
    APPEAL from the Fifth District Court for the Parish of Orleans. Rogers, J.

      W. 8. Benedict and Chas. 8. Bice for the Commissioners, Plaintiffs and Appellants.

      T. J. 8emm.es & Payne for Defendants and Appellees :
    l; Two of tlie commissioners of an insolvent bank cannot institute a suit when the law re* quires the appointment of three. 7 N. H. 253 ; 8 Md. 187; 9 Ark. 320.
    2. The commissioners of an insolvent bank cannot sue the directors for misrepresentation of the condition of the bank, whereby creditors or stockholders were deceived andsustained loss: sueh claims are not assets of the corporation, but belong to the individuals so de* ceived. 60 Maine, 17S; 12 Blatchford, 341; 14 Ch. Div. 673 : 55 Bf. Y. 400; oí JST. Y. 27, X/. K.; 4 Ch. App, 384; 6 Eng. and Irish App. 390; 2 Ellis & B. 476; 5 App. Cases, 338. Such action is cx delicto and not ex contractu, as would be a suit by stockholders for a waste of assets by bad management, as in Percy vs. Millaudon, 8 N. S. and 3 La.
    3. The issue of paid up shares to directors of a bank does not make them responsible on a contract to pay for sucb shares; at most, they are only liable in damages for the market value of unpaid shares at the time of issue, and if they had no value there is no damage, and here there is no allegation of loss. 1 Ch. Div. 124 : 5 Ch. I)iv. 322.

      Miller, Finney é Miller; Kennard, Howe & Prentiss and Jas. D. Coleman on tlie same side.
   The opinion of the Court was delivered by

Fenner, J.

This is an action brought by the commissioners or receivers of the Louisiana Savings’ Bank and Safe Deposit Co. against the late president, cashier and directors of the corporation, for five hundred thousand dollars, as damages resulting from their mismanagement and unlawful acts in their official administration.

Numerous exceptions were interposed by the defendants, some of which were sustained by the judgment appealed from, which dismissed the action.

So far as these exceptions are based upon the illegality and nullity of the proceedings under which the plaintiff commissioners were appointed, they are disposed of by the opinion and decree just delivered by us “In the matter of the Louisiana Savings’ Bank and Safe Deposit Co.,” wherein we affirm the validity and legality of those proceedings.

The exceptions further'question the right of the commissioners, in any event, to maintain such a suit as the one herein brought and to stand in judgment on such causes of action as are here propounded.

Before stating the very various and numerous charges against the defendants presented in the petition, we will briefly summarize the principles of law governing the liabilities of officers and directors of corporations and to what extent commissioners or receivers are entitled to sue for the enforcement thereof.

Officers and directors are mandataries of the corporation, and, as such, they are liable to their principal for breaches of the duties assumed by them.

They are also liable for trespasses, frauds, deceits, or other wrongs which they may commit against third persons. Thompson on Liabilities of Officers and Agents of Corporations, 352.

Receivers succeed to all rights of the corporation and may undoubtedly assert all corporate rights against unfaithful officers and directors. The better American doctrine seems to be that, to a certain extent and in certain eases, receivers are also representatives of the creditors, and, like a bankrupt assignee, may, as such representative, impeach and attack transactions of the corporation itself with others to their prejudice. Id. p. 378; High on Receivers, Sec. 314; Gillete vs. Moody, 3 N. Y. 479; Talmage vs. Pell, 7 N. Y. 347.

We are satisfied, however, that receivers can exercise no actions of this kind except such as pertain to the mass of the creditors. In the language used in a philosophic decision of the French Court of Cassation, they may exercise actions which belong to the creditors at universi, but not those which belong to them ut singuli. Journal du Palais, 1869, p. 712.

So far, therefore, as the acts charged in the petition are of a nature which could only be injurious to particular persons, whether stockholders or creditors, and not to the mass, or to the corporation, manifestly the commissioners have no right to champion the cause of such injured persons. Journal du Palais 1879, p. 241; Peck vs. Gurney, 6 Eng. & I. App. 390; Gerhard vs. Bates, 2 Ellis & B. 476; Arthur vs. Griswold, 55 N. Y. 400; Wakeman vs. Dally, 51 N. Y. 27; Turquaud vs. Marshall, 4 Ch. App. 384.

Recurring now to the petition, we find among the acts charged against the defendants, the following : that they falsely represented to> the public that additional capital had been subscribed and paid for, and that they made and published various false, fraudulent and deceptive statements of the condition and resources of the Bank. The specifications of these acts make up a largo portion of the petition. Such acts, if committed, may have injured particular creditors who dealt with the Bank on the faith thereof, or particular stockholders who became such on that account; but we can perceive no direct injury to the corporation or the mass of creditors or stockholders resulting therefrom, and no circumstances are alleged supporting such injury.

Other acts charged are as follows: that they allowed a large depositor, who was one of the directors, interest on his deposits ; that the Board held no regular meetings as required by the by-laws; that they illegally transacted business with six directors, instead of seven, as required by the charter; that they carried worthless assets on their books at fictitious valuations; that they bought a part bond anda State warrant and made fictitious entries to profit and loss on account thereof.

Surely such acts do not, of themselves, import any corporate injury, and we find no circumstances alleged to charge them with such effect.

Another act set forth in the petition is, that the defendants issued to themselves and to two other parties 3,500 shares of stock, purporting to be an addition of $350,000 to the capital of the Bank, when, in fact, said parties paid nothing therefor. How the Bank lias been injured thereby is not stated. It is not averred that the parties have received any dividends or other advantage, as holders of the stock, or that the .stock could have been disposed of to others for valuable consideration. The action is not ex contractu, to recover from the holders the price of the stock, but purely ex delicto. Indeed, it appears that separate actions ex contractu have been brought against the several holders. Clearly, there is nothing in this item to support the present action.

• Nothing remains of the petition except the following allegations:

1. That, with the assent of the defendants, the accounts of Edward C. Palmer & Co. and of Warner Van Norden were largely overdrawn, in sums exceeding $380,000, and that the former account was so overdrawn, on the day of the suspension of the Bank, in the sum. of $47,437.34.

2. That they permitted two of their number, namely, Edward C. Palmer and Edward Conery, to withdraw from the funds of said Bank, when it ivas insolvent to their knowledge, the sum of $47,437.34 to the former, and $84,000 to the latter.”

The petition presents no enlargement of these bare averments, and their vagueness and insufficiency, as a basis for such a demand against directors, are apparent.

As to the overdrafts of Van Norden, non, constat, so far as the allegagations show that they have not been paid up. As to the over-draft of Palmer & Co., the petition does not, advise us when it was made, or under what circumstances. For aught that appears to the contrary, it may have been innocently allowed, and may, even now, be a perfectly good asset of the Bank, no charge being made that Palmer is insolvent.

The permitting of depositors, even though directors, to withdraw their deposits from the Bank, at any time before the suspension of the Bank, may, or may not entail responsibilities on the directors, according to circumstances. Certainly, something more than mere knowledge of insolvency would be essential to sustain such liability. Directors are not bound to close the doors of the Bank the moment its insolvency becomes apparent, under peril of becoming personally responsible for all sums withdrawn thereafter by depositors or others. Such dangers are frequently tided over, and other important corporate interests may demand the keeping up of the struggle. If the two directors referred to took advantage of their official knowledge to withdraw their funds and thus fraudulently to secure for themselves an advantage over other creditors, it is possible, under proper conditions, that they might be held bound to refund. But, unless the directors, as a body, wilfully and fraudulently connived at and participated in the giving of such unlawful preferences, they cannot be held liable.

Eor some of the acts set forth herein the defendants might, under a proper and sufficient petition setting forth all essential facts and specifications, be required to answer at the suit of plaintiffs.

As to such causes of action, however, the exceptions to the vagueness and insufficiency of the petition were well taken.

As to others, as we have shown, the exception to the authority of plaintiffs to stand in judgment, because Dot resulting in damage to the corporation or to tlie mass of creditors, was proper.

. Our decree affirming the judgment will be construed according to this opinion.

Judgment affirmed at appellants’ cost.

On Application rob Amendment or Decree.

The opinion of the Court was delivered by

Pochjí, J.

In view of our statement that some of the acts set forth by plaintiffs might, under a proper petition containing clear, certain and comprehensible allegations, subject the defendants to meet the issue on the merits, plaintiffs suggest an amendment of our decree herein, under which they could be allowed to amend those portions of their pleadings.

Their prayer cannot be favorably entertained.

The allegations referred to have blended and intermingled together facts which point to a cause of action against some of the defendants only in their individual capacity, and other averments charging responsibility and liability against all the defendants in their official capacity as directors.

Our understanding of the issues disposed of by our decree is, that the determining or pivotal exception mantained, and under which the suit was dismissed, was that of no cause of action.

It is indeed very difficult to conceive of a legal mode by which a judgment of dismissal, maintaining the exception of uo cause of action and suggesting the vagueness and insufficiency of certain allegations which apparently disclosed some cause of action, could be segregated and sifted so as to authorize amendments touching the vagueness and insufficiency of a few substantial allegations. Such a relief could not be consistent with the recognized rights of the defendants under their well grounded exception of no cause of action.

It is clear, on both reason and authority, that the decree which maintains such an exception excludes all rights of amendments.

In the case of Hart vs. Bowie, 34 An. 323, we had recently the occasion to examine our jurisprudence on this point, and the result of our investigation is stated in the following language :

‘‘ The dismissal of a petition which discloses no cause of action disposes of the suit, and no amendment can then be allowed; any amendment, under which a cause of action would be disclosed, would undoubtedly change the issue, or rather create an issue where none had yet been presented.” * *

We see no reasons to justify a change in our decree which, therefore, remains undisturbed.


author: Fenner, J.

text:
    No. 8762.
    J. T. Boone and J. W. Cockerham, Executors, for use, etc., vs. Madison Carroll.
    The authentic act of the ancestor cannot be attacked or contradicted on grounds of simulation or fraud, by simple heirs, but only by forced heirs, who, in order to be heard, must sue as foroed heirs, and must allege and prove that the transaction attacked impairs their legitime, and that its annulment is essential for the enforcement thereof.
    The plea of discussion urged by a third possessor in an hypothecary action is a dilatory exception and cannot be pleaded after default, or in an answer after plea to the merits. ' The plea of confusion is disposed of by Pipes vs. Norsworthv, 25 An. 559.
    The demand on the debtor, required as a condition precedent to the hypothecary action, is not required to be made judicially.
    The third possessor cannot urge objections to the title of his own author.
    APPEAL from the Tenth District Court, Parish of Red River. Logan, J.

      J. F. Pierson for Plaintiffs and Appellees:
    The plea of discussion is a dilatory plea. State vs. Bradley, Administrator, l An. 643 ; Dwight vs. Linton, 3 Bob. 57.
    It cannot be allowed after issue joined by default. C, P. 333.
    In relation to improper pleas in the defendant’s answer, the better practice is to object on the trial to any testimony to support such pleas. 21 An. 272; 20 An. 194; 3 Bob. 365.
    The plea of discussion should be overruled where there is no actual tender of any specific sum to meet the expenses of discussion. C. C. 3403, 3047; Bobeckot vs. Folse, 11 L. 136; 7 An. 142; 22 An. 42; 18 All. 652.
    The property pointed out for discussion must be property in the possession of the principal debtor. Womack vs. Fluker, 13 An. 196.
    A general mortgage is not extinguished by confusion on one lot of lands, because the mortgagor bought another lot of lands subject to the same mortgage. Confusion of the mortgage will only exist as to the lot of lands bought by the mortgagor. Pipes vs. Nbrsworthy, •25 An. 559.

      A mortgagee who has acquired his light of mortgage upon the faith of the public records, which show an ostensible and valid title at the time in the mortgagor, will not be affected or impaired in his mortgage right by proof of latent or secret nullities, or invalidities in the title under which he acquired Ins right of mortgage. Hunter vs. Buckner & Bro., 29 An. 609 j Heater vs Hosier, 11 L. 408; Stockton vs. Craddiok, 4 An. 285 ; Bach va. Abbott, 16 An. 437; Brusle vs Hamilton, 26 An. 145
    The right of mortgage under the husband is not affected by the subsequent discovery of the fact that the property subject to the mortgage had been erroneously adjudicated to him as community, when, in fact, it was the separate property of the deceased wife’s succession. Hontelet vs. Murrell, 9 L. 298; Adams vs. N. 0. Towboat Co., 11 L. 48.
    Under C. C. 2236 the heirs claiming by inheritance are estopped by the deed of their deceased ancestor, unless they plead and show that the deed is in fraud or disparagement of their legitime. 27 An. 266; 12 An. 684, 759; 9 R. 29 ; 18 An. 51; 6 An. 494; 16 An. 344.
    Where there is no allegation that the deed is in fraud or disparagement of their legitime, the heirs will not be permitted to prove such facts. 15 An. 618; 24 An. 159; Hen. Dig., p. 1155, No. 3, and authorities there cited.
    No one will be permitted to attack the title to property under which he holds, nor the title of his authors. 25 An. 558; 10 An. 337; 5 An. 677; 1 Rob. 369; 8 B. 239; 2 B, 213.

      Jj. B. Watkins for Defendant and Appellant.
    JÍ. 8. Jones for the Syndic, Intervenor and Appellee:
    1. A party cannot allege the nullity of the title under which he holds. Giraulfc vs. Zuntz, 15 An 684; Verret's Heirs vs. Candóle, 4 N. S. 402, and authorities cited; 2 B. 213; lit. 369 ; 5 An. 677 j 1 N. S 577 ; 4 An. 250 ; 8 B. 239.
    -2. Neither plaintiff nor defendant can deny the title of their common author. 15 An. 684 ; 8 B, 239.
    3. The defendant, Carroll, having expressly recognized, the title of Scheen by purchasing from him under it, will not he heard to controvert its validity. Ross & Addison vs. Pritchard, 15 An. 531, 140, 684.
    4. The demand of an intervenor must relate to and grow out of the principal action; otherwise it will be dismissed. A party cannot, by an intervention, change a hypothecary into a petitory or possessory action. “ His right is limited to the suit pending; to see that it is legally and correctly decided,” as to the matters at issue between plaintiff and defendant, which will or may affect his rights; and to these exclusively. C. P.328; 2 An. 462; Carrahy vs. Morgan, 5 N. S. 501; 26 An. 141; 11 An. 612.
    5. “A suit for the nullity of a judgment cannot be brought by way of intervention or third opposition. It must be brought in the ordinary form, by petition and citation.” Wool-folk vs. Woolfollc, 30 An. 140.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiffs bring this hypothecary action against the defendant as third possessor of property acquired by him from J. H. Scheen, to subject the same to the payment of a judgment against Scheen, inscribed as a judicial mortgage against the property prior to its transfer to defendant.

C. Chaffe, as syndic of Lisso & Scheen, intervenes, as holder of the note of defendant given for the price of the property to J. H. Scheen, and secured by special mortgage and vendor’s lien, asserting preference and priority over the judicial mortgage of plaintiffs.

Mrs. Verona E. Armistead and others intervene as heirs of Madison Carroll, Sr., and in said capacity claim to "be owners in indivisión of four-fifths of the property in dispute, free from the mortgages of both the plaintiffs and Chaffe, syndic. They aver that the property belonged to their deceased father, Madison Carroll, Sr.; that it was transferred by him, in 1865, to their deceased mother, by a elation en paiement, in satisfaction of a judgment rendered in her favor against him, in a proceeding for separation of property; that said judgment and elation were invalid, null and void, because there was no indebtedness by their father to their mother and the same were mere simulations; that their mother, Mrs. E. A. Carroll, having thus no title to the property, none passed to J. H. Scheen, who acquired the same from her succession, and that, therefore, the mortgages placed by Scheen thereon were null and void.

The defendant, who is likewise an heir of Madison Carroll, Sr., in his answers, amongst other numerous defenses, sets up the nullity of Scheen’s title and consequently of the mortgages as affecting this property, on the same grounds urged by the foregoing intervenors.

I. The claim of these intervenors and the last mentioned defense •of Madison Carroll may be summarily disposed of.

The basis of the same is an assault upon the elation en paiement made by their father to their mother, by an authentic act. They do not allege that they are forced heirs of their father, or that their legitime was affected by the transfer aforesaid, nor is their action one to enforce their legitime. The exception of no cause of action was undoubtedly well taken.

They sue as simple heirs.

The Article 2236 Rev. C. C. expressly declares that the authentic act is full proof of the agreement contained in it against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.”

We confess some surprise at the citation by counsel of the Succession of Tile, 7 An. p. 97, as authority to support the right of heirs to contest the verity and reality of the agreement contained in the authentic act of their ancestor. That decision simply construed the word forgery in Art. 2236 to cover certain other falsifications of the authentic character of the act; but the act itself being admitted to be genuinely authentic, that is, actually passed before a notary and two -witnesses, there is no hint in that or any authority that the contracting parties or their heirs could contradict its contents.

The jurisprudence on this subject may now be considered as settled. In a very recent case, not yet reported, we said: only creditors and forced heirs are excepted from this rule, and the latter only to the extent of their legitime and for the purpose of protecting the same. Outside of the légitime they stand upon precisely the same footing with collateral licirs or universal legatees having no rights against the decedent but only rights derived from him, and which he himself, if living, might assert.” We further said in that case, speaking of a child who attacked an authentic act of her ancestor: “it follows that Kate Kerwin -has no right to attack the title and mortgage of her mother, except in her capacity as forced heir and to the extent necessary to establish her légitime. In the present suit she asserts no such rights, but appears as simple heir only.” Kerwin vs. Hibernia Ins. Co., 35 An., not yet published.

We repose with confidence upon the correctness of that decision, and it is fatal to the claim and defense now under consideration.

Such assaults by children on the acts of their parents are not favorably considered, and must conform strictly to the requirements of law.

Other formidable objections to this pretension of intervenors and defendant exist and are urged; but we base our ruling on this ground because we have, so recently, had occasion to consider and establish the principle here relied on, after careful examination of authorities.

II. Amongst other defenses, defendant opposes to the judicial mortgage of plaintiffs the plea of discussion.

The plea is contained in an answer filed after default taken. It is disposed of by a very recent decision, where we held, on most careful consideration, that; the plea of discussion, urged by the third possessor in an hypothecary action to enforce a judicial mortgage, is a dilatory exception and cannot be pleaded after default, and when so pleaded' must be disregarded. Chaffe vs. Ludeling, 34 An. 962.

III. The plea of confusion of plaintiffs’ mortgage by reason of the fact that M. A Cockerham, for whose use plaintiffs sue, is owner of property under title from J. II. Scheen, subject to plaintiffs’ judicial mortgage, and acquired since defendant acquired his title, is disposed of by the authority of Pipes vs. Norsworthy, 25 An. 559.

IV. The objection to the want of demand on the judgment debtor is unfounded. The evidence establishes timely demand both on Scheen, before his surrender, and on his syndic afterwards. No law required him to make a judicial demand on the latter before suing. Gomez vs. Courcelle, 8 An. 304.

V. The objections to the title of Scheen, on grounds of non-payment of price to the succession of Mrs. E. A. Carroll, from which he bought, do not lie in the mouth of defendant, who derives his own title from Scheen. He is Without interest, as well as without right, to urge them, as he claims nothing as heir of Mrs. E. A. Carroll.

We find no merit, in any of the other defenses urged.

The controversy between plaintiffs and the intervening syndic, as to the rank of their respective mortgages, is waived by their agreement to submit to the judgment as rendered.

Judgment affirmed at appellants’ costs.


author: Manning, J.

text:
    No. 8764.
    Samuel L. Boyd vs. B. S. Labranche, Sheriff, et al.
    In neither suspensive nor devolutive appeals is citation necessary, when the appeal is taken by motion in open court at the same term when the judgment is rendered.
    Judgments of courts, other than those of Hew Orleans, take effect only from the last day of the term at which they were rendered. Whatever may be -their actual date, their legal date is the last day of the term, and therefore a paity cast has ten days from the adjournment of the court in which to file his bond for a suspensive appeal.
    The validity of attachment process depends upon the state of facts existing at the time it was obtained. An attaching creditor may mistake his debtor’s intentions, or those intentions may have been correctly divined on one day, and have been changed on the next by the fitful debtor. If the attaching creditor had good reason to believe that his debtor was about to dispose of his property to defraud bis creditors and attaches on that ground, and his process is properly served, it wiLl not be invalidated because, in fact, the debtor after-wards absconded. Another creditor, afterwards attaching on the ground that the debtor had left the State permanently, will not take precedence of the first attachment.
    APPEAL from the Twenty-sixth District Court, Parish of St. Charles. Hahn, J.

      L. Be Poorter for Plaintiff and Appellant.

      Chas. A Baquié and E. T. Florance for Defendants and Appellees.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, J.

The motion is for dismissal because the defendants have never been cited.

The appeal was taken by motion in open court., made and granted the day after the judgment was rendered, and therefore citation was' not necessary.

We might stop here, since that is the sole ground stated in the motion, hut that the meaning was stated at bar to be that a suspensive appeal- bond must be perfected and presented during the same term the motion for that kind of appeal is made.

This is a novel proposition. The Code of Practice gives no countenance to it, nor does any decision of this Court.

The judgment, was rendered Aug. 2,1882, in the court for St. Charles Parish. That term of the court ended August 25th. The judgment therefore did not take effect till this last date. Code Prac. Art. 555. Legally the date of the judgment is August 25th, 1882. The appellant had ten days thereafter in which to file his bond. He filed it on that day.

The motion is refused.

On the Merits.

The contest is between-creditors'for the proceeds of a sale of their debtor’s property insufficient to pay both. It is in the form of an injunction by one of them to prevent the sheriff from paying to the other those proceeds, the rival claimant being made co-defendant with the sheriff.

Isidore Jacob is the debtor, and was a shopkeeper in St. Charles Parish. He went to the office of Adler & Levy, the defendants, in New Orleans, on January 13, 1882, and said to their clerk that he would go away if he could sell his stock. He would take $1000 cash for it. He promised to return to the office that evening, and said he should return to St. Charles in a few days. He did not come back to the office, and on the following day Adler & Levy sued out a writ of attachment in St. Charles, on the allegation that Jacob was about to dispose of his property with the intent to defraud his creditors. The process was served at his domicile, he being absent.

Jacob absconded. He did not return to St. Charles. The sheriff of that parish met him on the Jackson Railroad train in the afternoon of the 14th, and Jacob told him he was en route to St. Louis. He was after-wards heard of at New York, and later abroad. On Feb. 10th Adler & Levy filed a supplemental petition, alleging that Jacob had then left the State permanently, and prayed the appointment of a curator ad hoc, and citing numerous parties as garnishees under proper averments. No additional or supplemental attachment of the stock of goods was prayed, no bond given. The supplemental attachment therein prayed was against the garnishees.

Meanwhile Boyd, the plaintiff, had taken out- an attachment on January 31st, alleging that Jacob had left the State permanently, and his process was served by posting it on the courtroom door, as well as served on a curator appointed at his instance. The stock of goods, already in the hands of the sheriff under Adler & Levy’s attachment, was seized under Boyd’s writ on the day it issued.

Each party had judgment for his claim—Boyd for $2,010 and the other for $4,682—and tire property sold for $2,895.

Adler & Levy contend that Boyd is estopped from disputing the regularity of their proceedings because he claims in this suit the proceeds of sale of the attached property, made at their instance. Boyd’s attachment was levied prior to the sale, and the proceeds were therefore subject to his writ as well, each in the order of time.

On the other hand, Boyd insists that Adler & Levy’s proceedings are altogether null because the fact, as demonstrated by his subsequent conduct, was that Jacob had left the State permanently when their attachment was obtained, and therefore the service at domicile was ineffective, and as their process was not posted on the courtroom door, there was not sufficient service to support the attachment.

The validity of attachment process depends upon the conditions existing at the time it is sued out, and the circumstances as they give color to apprehensions or beliefs reasonably induced by a debtor’s conduct at the time. Debtors who are. about to attempt to evade their creditors generally adopt sinuous methods. They try to deceive those they are plotting to defraud, so that a creditor might well mistake his debtor’s real intentions, and besides, those intentions might have been correctly divined on one day, and have been changed on the next by the fitful debtor, ever on the alert for new devices with which to mislead.

Adler & Levy had good reason to believe that Jacob was about to dispose of his property to defraud his creditors. He told their clerk in their office that he wanted to sell his stock, and would sell for an insignificant price in order to go away. He promised to call in the afternoon and did not. He had not returned to St. Charles the next day, and presumably was endeavoring to do what he said he wanted to do. Promptness of action was the one thing needful. They were not required to wait until events had shewn what Jacob really intended to do. They acted od the state of facts as they existed at that moment, and cannot lose the advantage of their acting because their wily debtor had the secret intention to leave the State permanently. He had not gotten out of it on the 14th, when their process was served. The sheriff saw him late on that day.

The singular feature in his conduct is that he should have taken the pains to go to Adler & Levy’s office, and have there told their clerk what he wanted to do. We do not see or hear any suggestion that this was a sly way of giving a hint to those whom he would like to prefer. Whatever may have been his purpose, his conduct gave just cause for alarm to them, and they attached on the instant. Their supplemental petition does not pray a new attachment. They rested on the. original process of the 14th, and had deposited money in the court as a substitute to a bond. The main object-of the supplemental petition seems to have been to obtain garnishment process, and the appointment of a curator ad hoe, contradictorily with whom all the subsequent proceedings were conducted.

We think the proceedings of the first attaching creditors are regular, and tlieir claim absorbs the fund. But we cannot permit the other creditor to be mulcted in twenty per cent, damages, and one hundred dollars attorney’s fee, for testing the legality of the process which stood in the way of his claim. Therefore

It is ordered and decreed that the judgment of the lower court dissolving the injunction is affirmed, and so much thereof as awards damages and attorney’s fee is reversed, and the judgment for interest on the sum injoined is also affirmed, the defendants and appellees to pay the costs of appeal.


author: Pochí, J.

text:
    No. 8750.
    Clem Ware et al. vs. Adrien Vignes et als.
    Wliere minors are interested in an immovable owned in indivisión by several co*owners, a judicial partition is tbe only mode of making a legal division of suck property. The co* owners of an undivided portion of a large tract of land cannot effect a legal partition of the same without making tbe owners of tbe other portion of said property parties to their suit for partition.
    An undivided portion of a larger and undivided tract of land cannot be legally partitioned among tbe owners thereof.
    APPEAL from the Twenty-sixth District Court, Parish of St. John the Baptist. Malm, J.

      Jas. D. Augustin for Plaintiff's and Appellees.

      Jules Heine and JD. JDe Hoorter for Defendants and Appellants.
   The opinion of the Court was delivered by

Pochí, J.

This is an action for partition, in which plaintiffs allege that they are undivided owners with defendants of a certain tract of land measuring an arpent and a half front on the Mississippi river, by the usual depth, and forming part of a larger tract measuring three arpents front on said river, which other half of said tract is owned by another set of proprietors, known as Similien Sheldon & Co.

After this judicial admission of the state of indivisión of the ownership of the three arpent tract, plaintiff’s petition contains the averment that a division by extra-judicial act had been effected, of the original tract in two equal portions, the upper half of which was allotted to S. Sheldon & Co., and the lower half became the property of the parties, plaintiffs and defendants, in this suit.

It is next alleged that this partition, which was made by a surveyor, and was not evidenced by any other act, but is shown exclusively by the surveyor’s return and plat, dated March 9th, 1878, was followed by an act of voluntary partition, by authentic act, of the upper half of said tract of land, between Similien Sheldon and his six joint co-owners.

The record shows that, among such co-owners, two shares were partially owned by two different sets of minors, and that such minors were represented in the act by their respective mothers, who were not authorized thereto by any judicial mandate or proceedings. The record shows further, that none of the owners of the tract alleged to have been allotted to Similien Sheldon & Co. have been made parties in the present suit for partition.

From the foregoing statement of the pleadings, and of the facts of the case, it appears clearly to our minds:

1. That there has been no legal partition of the original three arpent tract between the parties to this suit and their co-owners, Similien Sheldon & Co.

The plat or survey made by the surveyor on March 9th, 1878, has none of the elements of a legal partition between co-owners, even if they are all of age, a fortiori, it can have no legal or binding effect on minors interested iu the immovable property to be affected thereby.

2. That the ratification alleged to have been made of such pretended partition by the act of partition between S. Sheldon & Co. in April, 1881, cannot be invoked as operating a legal partition, for the reason that minors were interested as owners, and quoad them no legal partition could be made extra-judicially. C. C. 1323. Hence, it follows, that the original three arpent tract is yet owned and held in indivisión by the parties to this suit ou the one hand, and by Similien Sbeldon and his co-owners on the other. •

But as the latter set of owners have not been made parties in the present proceeding, it is clear that no legal partition can be decreed and enforced in the present action.

. Hence, the judgment of the lower court, which ordered a partition in kind of the one-lialf of said tract of land, which is shown by the record to be yet undivided, is manifestly and glaringly erroneous 5 and its execution would make confusion worst’eonfounded, and would have fostered for the future very complicated aud crushing litigation.

The judgment appealed from is, therefore, annulled, avoided and reversed, and plaintiffs’ action is therefore dismissed at their costs in both Courts.


author: Poché, J. Todd, J.

text:
    No. 8482.
    Samuel D. Browne vs. John W. Clarke.
    A case having heen ordered to he stricken from the docket of the Supreme Court under the erroneous impression that the record contained no order of appeal will, on proper showing, he reinstated, as the order complained of is not a final decree in the cause.
    A writ of provisional seizure was properly dissolved where the lessee offered to deliver cottou to the lessor, then iu the ginhouse, sufficient to pay the rent, or to give a draft for the same, the offer being made on the day the rent fell due.
    3$Tor is the lessor entitled to the writ for the value of tbe repairs which the lessee failed to make, where no demand for any specific amount was made on this account, and where it appears from tbe contract of lease it was stipulated, that on the payment of money rental the lessee was authorized to ship or dispose pf his orop.
    APPEAL from the Eighth District Court, Parish of Madison. Delowy, J.

      S. P. Wells for Plaintiff and Appellant.

      J. 0. Seale for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff moves that, as the appeal taken by him in this case was erroneously dismissed by us, on the mistaken impression that the record contained no order of appeal, the ease be reinstated for trial on the merits of his appeal,

Justice to ourselves requires the statement that the order of appeal was not correctly indorsed and was inscribed in the transcript many pages before the judgment and with the evidence iu the case.

A reference to the opinion rendered in the premises shows that the appeal was ndt dismissed, but that the case was merely ordered to be stricken from our docket. Hence, no final decree has been rendered in tbe case, and for that reason plaintiff’s motion can be entertained, even though tbe delay for applying for a rehearing has expired.

It is, therefore, ordered, that our previous order removing this case from the docket be rescinded; and it is now ordered that the case be reinstated for a trial of the merits of the appeal.

On the Merits.

The opinion of the Court was delivered by

Todd, J.

The plaintiff leased to the defendant his plantation in the Parish of Madison, known as the Coleman Place,” for the year 1874. The consideration of the lease was five hundred dollars, and in addition thereto, the lessee obligated himself “ to keep tbe place, fences, houses, ginhouse, etc., in good repair,” and to return them in the same condition in which they then were.

The right was reserved to the lessee to keep the place on the same terms and conditions for five years.

Of this last stipulation the defendant availed himself, and occupied and cultivated the place up to and including the year 1878. The rent was payable on the 1st of November of each year.

On the 6th of November, 1878, the plaintiff instituted suit. He claimed the five hundred dollars, the moneyed consideration of the lease, and further alleged that the defendant had failed to make the repairs stipulated, and in addition to the five hundred dollars prayed for judgment for seven hundred dollars, the estimated cost or value of the said repairs, and that the lessor’s privilege he recognized and enforced for the sums claimed.

Under the usual averments the plaintiff also obtained a writ of provisional seizure, and caused to be seized thirty bales of cotton, which were subsequently released on bond.

The defendant, after pleading the general issue, averred that, when the suit was brought, he had on the plantation cotton sufficient to pay the five hundred dollars, the stipulated moneyed consideration for the rent, which was tendered to the plaintiff and refused, the money being demanded. That arrangements were made to pay the amount through his local merchants, hut owing to the prevalence of the yellow fever, could not be at once completed. It was further averred that the property was in as good repair as when the lease commenced, except the ordinary wear and decay, for which he, the lessee, was not hound.

The affidavit on which the provisional seizure issued was alleged to be untrue, and it was prayed that the writ be dissolved, with two hundred and fifty dollars damages.

There was judgment for the plaintiff for five hundred and eighty dollars, and dissolving the writ of provisional seizure j and from this judgment the plaintiff appeals.

The evidence shows, that about the time the rent of 1878 became due, the plaintiff went to the plantation leased and found the defendant absent. The wife of the defendant offered to deliver cotton then under the ginhouse, or give a draft, in payment of the moneyed rent, $500. This the plaintiff declined to accept and demanded the cash.

It is ¡ilso shown that, when on the same day he informed a neighbor of the defendant of the offer made by Mrs. Clarke, the defendant’s wife, and his declining to accept it, this neighbor offered, if he would go and get an order on him for the rent from Mrs. Clarke, that he would pay it just as he had paid him the rent the year before. This the plaintiff refused to do.

It is likewise in evidence that, in the month of October, before the rent was due, the local merchant who furnished the plantation, when about leaving the parish for a time, handed his blank draft signed to his clerk, and requested him to ascertain the amount of the rent owing the plaintiff, and fill up the draft and deliver it, to him when the rent became due. So that ample provision seems to have been made for the settlement of this debt and no disposition whatever manifested to evade or delay its payment. Under these circumstances we find no Toom for the grave apprehensions sworn to by plaintiff of losing his moneyed rent by the removal of the cotton from the plantation, which was tlrn ground for resorting to the writ.

It is, however, urged, that the’ defendant was indebted for the repairs he had failed to make on the place, and that the plaintiff was not bound to accept part of the debt, and unless the whole of it was tendered, that he had the right to seize for the entire dobt.. This part of plaintiff’s claim was unliquidated, and it is not pretended that he made any demand for a specific amount on account of it before bringing his suit. Besides, we find in the contract of lease a clause substantially to this effect: That the $000 mentioned was to be paid out of the first cotton picked and ginned, and that the lessee was not to ship or dispose of more cotton than sufficient to pay this debt until the same was paid; that when this amount was paid the lessee was at liberty to dispose of the residue of his. entire crop, and that a failure to comply with this stipulation would afford cause for seizure by legal process.

Under this state of facts we think the writ of j>rovisional seizure was properly dissolved.

The evidence satisfies us, however, that the defendant is indebted to the plaintiff in a larger amount for his failure to make the required repairs than that found by the Judge a quo. It is made reasonably certain that the fences wore not rebuilt or repaired in the entire five years, and that but trifling repairs were made on the ginbouse., That it would require from eight to ten thousand rails put upon the fences to restore them to the condition they were in when the lease began, and considerable work on the ginbouse to restore it to its then condition. The District Judge allowed only eighty dollars on this account; we think he should have allowed, at least, three hundred dollars, and the judgment should be amended accordingly.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be amended by increasing the amount therein awarded to eight hundred dollars, with interest at the rate and from the time therein stipulated ; and as thus amended that it be affirmed, the costs of the lower court to be paid by the defendant, and of this appeal by the plaintiff.