text:
    No. 6829.
    New Orleans Gas Light Co. vs. Board of Assessors.
    Where an owner of real estate who complains of the over assessment of his property by the Board of Assessors, has the matter submitted to the two referees provided for in act No. 96 of the Legislature of 1877, he is concluded by the decision agreed on by the two referees, and can not appeal from that decision to the courts.
    APPEAL from the Sixth District Court, parish of Orleans. Bighior, J.

      Vállée J. Bozier for plaintiffs and appellants.

      Sam’l P. Blanc for defendants and appellees.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff’s suit is for the reduction of the assessment of the St. Charles Theatre in this city, of which it is the owner. The assessment was forty thousand dollars, and was made in 1877. The claim is for its reduction to one half that sum. During August of that year the assessment rolls were exposed for inspection and amendment, as required by the law enacted a few months before. Sess. Acts 1877, p. 136 sec. 87. The theatre was then owned by DeBar, who through his agent applied for a reduction of the assessment to thirty thousand dollars, which was the sum for which it was insured. The Board of Assessors rejected this application, whereupon the plaintiff, through its President, who held a mortgage upon the property which was about to be foreclosed, in its own behalf and of DeBar, applied to have the matter-submitted for revision to two persons as authorized by sec. 88 of the same act. That section is as follows :

“That any person whose request for correction of assessments shall have been refused by the board of assessors, may submit his ease to two persons paying taxes on real estate and personal property in the assessment district in which the property assessed is located, one to be selected by the taxpayers, and one by the board of assessors, and in case of a disagreement they shall call on a third taxpayer to act as umpire, whose decision shall be final, unless the taxpayer under oath shall allege that gross injustice has been done to him, in which case an appeal shall lie to the courts,” etc.

A. Hero jr. was selected by the party representing the owner of the property and the mortgage creditor, and Jonas Pickles was selected by the Board of assessors, who reported on August 31 that the property should be assessed at forty thousand dollars — in other words that the assessment made by the board should stand. Shortly thereafter, viz on September 19, the plaintiff purchased the property at public auction upon the foreclosure of its mortgage, and on October 15 commenced this proceeding before the Sixth Court. It is a rule upon the defendant to shew cause why this decision of the “ two persons,” selected by the parties, should not be set aside and annulled, and the assessment be reduced to twenty thousand dollars. The lower judge dismissed the rule on hearing, and the plaintiff appeals.

The language of the act of the General Assembly is explicit. When a request for the correction of the assessment rolls is made for the purpose of reducing the valuation of a piece of property, and such request has been refused by the Board of assessors, the party may submit his case to two persons, who shall be taxpayers, one of whom is to be selected by himself and the other by the board, and in case of their disagreement a third taxpayer shall act as umpire, whose decision shall be final, unless the applicant shall allege under oath that gross injustice has been done him, in which case an appeal shall lie to the courts. But what if they do not disagree ? It is apparent that the Act does not provide for an appeal from the decision of the two referees. When it directs that an appeal shall lie from the decision of the umpire when, oath to gross injustice has been made, and whose decision shall be otherwise final, and that he is to be called in only in case of disagreement, it presupposes that in case of agreement of the “ two persons” selected by the parties, the decision which they shall make shall be final. It is obvious therefore that the right of appeal does not come from that act of the General Assembly. Can it be derived from any other source ?

The plaintiff seems to take for granted that the rules of our Codes touching the reference of litigations in the courts to arbitrators governs this case, and cites art. 3097 of the Civil Code, permitting one who is not satisfied with an award to appeal from it, although he had renounced such appeal by the submission, new no. 3130. The case falls under wholly different rules.

Revenue laws provide with great particularity for the assessment of property from which the revenue is to be derived, and for its collection. The assessment is sometimes confided to an individual, as in the Act of 1877 quoad, the country parishes, and sometimes to a Board as in this city. A period is prescribed when parties interested may have their assessments revised, and a mode of doing this is set out. All modern statutes for raising revenue contain some provision for the correction of improper and excessive assessments, and constitute a tribunal to hear and finally determine complaints of that character. If the complaint be, not of any violation of law, but merely of an error of judgment on the part of the assessor, as of over-valuation, the statutory tribunal can alone afford relief, and unless the statute gives the right of appeal therefrom, the decision of such tribunal must be final. And this from necessity, and from the nature of the subject matter. Were it otherwise, the operations of government might be impeded and its machinery effectually clogged by appeals from every assessment. The legislature doubtless thought it was securing the tax-ower from oppressive valuations by compelling the exposition of the tax-roll for a certain period, and according him the right to have the refusal of the Board for reduction reviewed by two persons, in whose selection he could take part, and when they agreed, he should be finally concluded. How much more should he be concluded if these persons not only agreed, but their estimate of value was the same as the actual assessment.

In a late case we said that the award of the referees as to the value of what they considered ought to have, effect. N. O. City R. Co. v. Board of Assessors, 30 Annual, 261, and writers who have made the laws of taxation a special study lay down the rule that the statutory remedy is supposed to be adequate to all the requirements of justice, and if a party fails to appeal to the statutory tribunal for the application,of that remedy, it is his own folly, and if he does appeal to it, and .is dissatisfied with its judgment, he is nevertheless concluded by it. Burroughs Taxation, 238 ; Cooley Tax. 529.

The lower court properly discharged the rule, and its judgment is affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Manning, O. J.

license: Public Domain

text:
    No. 7363.
    The State ex rel. T. A. Bartlette vs. the Board of Liquidation.
    A mandamus will not issue to compel the Board of Liquidation to fund certain warrants when it does not appear that any demand to fund them was ever made on the Board. A demand on the Auditor of the State to fund warrants will not put the Board of Liquidation in default.
    The clause in the general appropriation bill of 1871, (act No. 72) providing for the re-imbursement of moneys paid into the State treasury through error, etc., is too general in its terms to allow a court to declare that it included a particular sum which had been paid into the treasury through error by a certain person whose name does not appear in the act.
    ^PPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      Bartlette in propria persona.

   The opinion of the court was delivered by

Manning, O. J.

The object of this mandamus is to compel the conversion into consols of two warrants for one thousand dollars each, dated April 6, 1871, in favour of F. C. Mahan, which purport to have been issued to re-imburse him for moneys paid, as tax collector, into the State treasury through error. They state specifically that they are drawn under act No. 72 of 1871.

The respondent answered by a general denial, but introduced no evidence, and has made no appearance in this court.

The relator offered in evidence the warrants, and their indorsement by Mahan, and his own testimony, wherein he says that he “ presented to the Auditor the warrants sued on, and he refused to fund them.” The refusal of the Auditor is of no consequence. He had not the right or power to fund the warrants. If a majority of the Board of Liquidation reject the application of a holder of a warrant or bond, then such holder may apply to the proper court for relief. Sess. Acts 1874, .p. 39. There is neither allegation nor proof that any application has been made to the defendant to fund these warrants. On the contrary, the relator impliedly admits that he never applied to it. He says; — “relator is credibly informed that the Board of Liquidation refuses to fund»any warrants unless ordered so to do by mandate of court.” He is not entitled to a mandamus to compel the Board to do what it never refused to do.

We arc also referred to Act No. 72 of 1871 as the authority for drawing the warrants. In fact, the relator is said by the note of evidence to have offered it in proof, but happily it was not copied in the record, and there is no agreement that the printed copy may be used. There was no need to offer it, and we shall therefore consider it. It is the general appropriation bill for that year. The only clause which we can conceive to be applicable to the matter in hand is this ; — “ for the re-imbursement of moneys paid into the State treasury through error, or'which do not belong to the State, fifty thousand dollars, or so much thereof as may be necessary.” Sess. Acts 1871, p. 179. This is too general to allow a court to declare fhat Mahan’s warrants were meant to be included in this clause, without some other proof than is in this record, and particularly when we find numerous clauses in the same act of specific appropriations to individuals by name. Ibid. pp. 183-4.

The judgment of the lower court, ordering the Board to fund these warrants is erroneous. We might do injustice to the relator if we finally concluded him by our decree, and we shall avoid it by a nonsuit. Therefore

It is ordered and decreed that the judgment of the lower court is avoided and reversed, and that there be now judgment in favour of the defendant against the plaintiff as in case of nonsuit, and for costs of. appeal.


author: Manning, C. J.

text:
    No. 7404.
    E. J. Gay vs. N. O. Pacific Railway Company.
    Where the plaintiff avers in his petition for an injunction that the acts of the defendant have already caused him damage in the sum of $500, and will, unless restrained, cause him a further damage of $2000, the district court has jurisdiction.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. McVea, J.

      Barrote & Pope for plaintiff and appellant.

      Matthews & Talbot and Kennard, Howe & Prentiss for defendants and appellees.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff avers that he is the owner of a sugar plantation in Iberville parish, and that the defendant, without his consent and despite his express prohibition, has entered upon the plantation and is engaged in laying off and constructing thereon a railroad extending across the whole of his land, without having caused an expropriation thereof to be made — that this railroad is being laid in such manner as to endanger the safety of his sugar-house, and is destroying the crops of cane and corn growing on the land — that the excavations of the defendant’s agents and employees have already damaged him in the sum of five'hundred dollars, and if the defendant shall persist in constructing the road in the manner proposed, he would be further damaged in the sum of two thousand dollars, independent of the value of the land thus occupied. An injunction was prayed and obtained, prohibiting the defendant from entering upon the land, and constructing the road-bed, and from making any embankments or excavations upon his land, and judgment was prayed against the company for five hundred dollars for damages already sustained by its tortious acts.

The defendant pleaded the general issue, and specially averred that the acts and works complained of, and prayed to be injoined, were done and completed before any injunction was served upon it, and therefore there was nothing to injoin — that the company had a legal right to enter upon the plaintiff’s land for the construction of the works complained of, and had been induced to believe by the acts, speeches, and declarations of the plaintiff that such entry upon his land and construction of the road thereon would meet with his approval, and that he is now estopped from shifting his position, and claiming damages. It is then averred, that so far from damaging him, the construction of the road across his land has enhanced its value, and will enhance it more in the future.

A jury was empanelled to try the issues thus raised, and on reading the petition, the judge below was of opinion that he had not jurisdiction of the ease, because the sum involved did not exceed five hundred dollars, and on motion of defendant he accordingly dismissed the suit.

The plaintiff relies upon Crescent City L. S. & S. Co. v. Larrieux, 30 Annual, 798, where we said ;—

“ The substance of its allegation is, first, that defendant has already, by past acts, damaged it in the sum of $200; and second, that if permitted to continue, it will irreparably injure plaintiff in the enjoyment of its exclusive rights, privileges, and emoluments under its charter. It is made to appear by affidavit, that these rights and privileges thus alleged to have been invaded, and which will continue to be so invaded, are of a value exceeding $500, etc. We think that under the allegations of the petition, the terms of the charter and the affidavit, the matter in dispute is shown to be within the jurisdiction of this court.”

In that case, there was no averment of the amount of damages that would be sustained by the continuance of the obnoxious acts, but merely that such continuance would work irreparable injury, and it appeared only by affidavit that the prospective damages would exceed five hundred dollars. In the present case, the prospective damages are laid at a designated sum, set out in the petition, and under the authority of Larrieux’s case the district court had jurisdiction. Therefore

It is ordered that the judgment of the lower court is avoided and reversed, and the cause is remanded to be proceeded with according to law, the defendant paying costs of appeal.


author: White, J.

text:
    No. 7376.
    Heirs of Herriman vs. John Janney.
    The failure to appoint an attorney of absent heirs with whom to conduct contradictorily an application for the administratorship of the succession, will not affect the validity of the appointment of administrator.
    The failure of an administrator to obtain an order of court for the sale of succession property contradictorily with an attorney of absent heirs, will not render the sale null and void. The purchaser at such a sale is not affected by such irregularities.
    In the absence of a newspaper published at the. place where the probate court is sitting, posting an application for letters of administration is sufficient.
    The acceptance of an insolvent surety on the bond of an administrator will not affect the validity of his appointment, or of his acts as administrator.
    The mere omission of the name of the succession in the body of the oath taken by one qualifying as the administrator of the succession, in the course of the mortuary proceedings, will not affect his qualification as administrator.
    Where an order of sale of succession property is applied for it is sufficient to cite tho administrator. It is not necessary to obtain the order contradictorily with an attorney of absent heirs.
    The clerk of the probate court has power to render an order of sale of succession property.
    Where the sale of succession property is attacked on the ground of a fraudulent collusion between the administrator and the creditor who provoked the sale, parol evidence is admissible ro show that the property sold for what it was worth.
    The question as to what was sold at a public sale by the sheriff is determined by the adjudication, not by the sheriff’s deed.
    APPEAL from the Thirteenth Judicial District Court, parish of Concordia. Hough, J.

      Wade B. Young for plaintiffs and appellants.
    O. Mayo for defendant and appellee.
   The opinion of the court was delivered by

White, J.

In March, 1862, Peter Young, through his attorney, James H, Yeazie, instituted suit against Mrs. Jeannette Herriman for the sum of $1093 54. Personal service was made on Mrs. Herriman of this petition; but it seems that issue was never joined thereon during her life-time. In the summer or autumn of 1863 Mrs. Herriman removed to Texas with her family, where she died about January, 1865. On the 14th of March, 1866, John Janney, through his attorneys, Messrs. Sparrow & Montgomery, presented a petition representing the death of Mrs. Herriman, her non-residence, and his belief that her heirs resided in the State; stated that he had been requested by the creditors to apply for letters of administration, for which he asked. Upon this petition the clerk of the district court on the 14th of March, 1866, rendered an order for the publication, for the inventory, and for the appointment of Janney in the event of no opposition. The application was posted, and there being no opposition, and Janney having taken the oath and given bond, he was appointed administrator of the succession of Jeannette Herriman on the 9th of April, 1866. By order of the clerk, on the 28th of July, 1866, an inventory was taken of the effects of the succession of Jeannette Herriman, and the following property was inventoried: “ One eighth part of a tract of land known as the Henry tract, lying on the lower or south side of said tract, containing one hundred and twelve 5-100 acres, acquired from Samuel Garland; also one half of fractional section No. 1, containing sixty-nine 17-100 acres, and fractional section No. 11, containing thirty-one 71-100 acres ; also fractional section No. 12, containing three hundred and fifteen 31-100 acres; the whole containing a tract of five hundred and twenty-eight 64-100 acres, of which is improved -supposed to be about two hundred and sixty acres, appraised at eighteen dollars per acre, amounting to $9506 25. On the 26th of May, 1866, Young, by his attorneys, Mayo & Spencer, revived his suit against Mrs. Herriman by petition against Janney, administrator, who pleaded a general denial, and judgment was rendered after due proof against Janney, administrator, for the amount claimed. On the 3d of March, 1867, Young filed a petition representing the obtaining of his judgment, his non-payment, that the only property of the succession was land which was not productive, that its sale was necessary for the payment of the debts of the succession, and asked that Janney be ordered to show cause why the land should not be sold to pay the debts, and for a new inventory and appraisement of the property. Janney, administrator, answered that having no good cause to show why the prayer should not be granted, he consented to the order to sell as prayed for. On the 10th of June, 1867, the clerk rendered an order directing that as the plaintiff was a judgment creditor of the succession the real estate of the deceased be sold by Janney, sheriff, according to law ; that an inventory and appraisement be made of the property of the succession. This inventory was taken, consisting of the same property previously inventoried, which was appraised, at nine dollars per acre, or $4757 76 for the whole. Under this oidar an authority was issued to the sheriff to sell the property of the succession of Jeannette Herriman, the order containing 'the description of the property as found in the inventory. The real estate was advertised for sale for cash, the advertisement giving the same description as that contained in the inventory and order to sell. There being no bid, the property was re-advertised for sale at twelve months credit. The advertisement being identical with the former, the property was adjudicated to Peter Young for five hundred dollars. The sheriff made return on the order of sale that he bad sold the property described'therein to Young. In making his deed, however, to Young the prbperty was described as follows: “ The one eighth part of a certain tract of land lying and fronting on Black river in said parish, known as the Henry grant, being the south eighth thereof, etc., the words “ being the south eighth thereof,” etc., having been added to the description as contained in the inventory, as mentioned in the order of sale, as published in the advertisement, and as stated in the return of the sheriff. The addition of these words in the deed making it thereupon appear that the sheriff had sold a certain divided eighth, instead of an undivided one, Janney filed a final account by which the succession was shown to be insolvent, which account, although filed on the 12th of October, 1868, remains unhomologated.

Such are the mortuaria proceedings of Mrs. Herriman’s estate, a clear apprehension of which is necessary to the decision of the present suit which is a demand on the part of the heirs of Mrs. Herriman to recover the property from Young, with the rents and revenues, and for damages against Janney, on the following grounds :

First. That Janney never was the administrator of Jeannette Herriman, because at the time of his appointment the heirs were in possession through a duly authorized agent. This ground having been destroyed by the proof, the contrary position has been assumed by counsel; viz.: That Janney was not administrator, because the heirs were absent and unrepresented, no attorney for absent heirs having been appointed.

Second. That no publication of his application for letters was made.

Third. That no inventory was made.

Fourth. That no oath was taken or bond executed.

Fifth. That Young’s judgment is a nullity, not having been contradictorily rendered with an attorney of absent heirs.’

Sixth. That the order of sale was obtained without due notice to the heirs.

Seventh. That the clerk had no power to render the order of sale.

Eighth. That the mortuary proceedings were concocted between Young and Janney for the purpose of despoiling the heirs, were fraudulent in their inception, in their execution and. accomplishment, that the property was sold for a vile price.

Ninth. Tha't the sheriff sold a divided eighth, while the succession was only owner of an undivided one.

In considering these objections we will eliminate primarily the question of fraud in order to examine it in its proper order, thus enabling us to determine the legal aspect of the objections before considering the effect of the fraud, if any, upon the proceedings.

1. There can be no doubt that the heirs of Jeannette Herriman were absentees, that no attorney of absent heirs was appointed to represent them.

But this failure did not affect the validity of the appointment of the administrator, however it might affect his subsequent acts in which it was necessary to make the heirs parties through the attorney of absent heirs. On the face of the proceedings there was no necessity for an attorney of absent heirs. It has been long since held that a necessity for such appointment should be shown before it is made. Robouam’s Heirs vs. Robouam’s Ex., 12 La. 74; Succession of Harris, 29 A. 746. If the heirs were absent, the succession ought, perhaps, to have been administered by a curator, but the mere calling of the person appointed an administrator, when, perhaps, under the true state of facts he should have been called a curator, can have no legal effect upon the validity of his acts. Ford vs. Newcomer, 14 A. 706.

The appointment of Janney by the court fixes his right to the office, at least quoad parties dealing with him as such ; but even were this not the case, the mere non-appointment of the attorney of absent heirs would not render the proceedings absolutely null. Said this court in Gibson vs. Foster, 2 A. 509 : “If it were true that no attorney had been appointed to represent the absent heirs when the decree and order of .sale was made, the decree would not be an absolute nullity by reason of the omission. A curator was the representative of the succession, and. had the capacity to provoke a sale of this property. The act of 1817, making it a duty to prove contradictorily with the attorney of absent heirs that the sale was advantageous and necessary, is merely directory. It contains no prohibitory clause, and although its non-observance might in certain cases subject the curator to damages at the suit of the absent heirs, it constitutes one of those informalities anterior to the judgment which can not be inquired into collaterally.” 2 A. 966. But whatever conclusion might be arrived at on this subject, the validity of the sale to Young would not be affected thereby. It is no longer an open question that the purchaser at a probate sale need not look beyond the decree ordering the sale for his protection, and that all irregularities anterior to the order are covered by it, at least quoad the purchaser. 11 R. 72 ; 16 La. 440 ; 14 A. 622 ; 18 A, 485 ; 21 A. 505.

These authorities are completely decisive of the remaining objections, but from abundance of caution we will review them seriatim:

2. The application for letters was duly posted. In the absence of a newspaper the posting was sufficient.

3. There was an inventory.

4. There was a bond given for ten thousand dollars and signed by General Sparrow. It is contended that at the time he signed as security he was insolvent; but manifestly the sufficiency of the bond was a matter to be determined by the officer whose duty it was to receive and judge of it. If he took an insolvent security, although we express no opinion thereon, his so doing could not have affected the appointment of the administrator or have destroyed the validity of his acts. The oath was taken ; the pretension of its non-existence results from the following fact: the oath as found in the record has in the body of the oath the name of the succession blank, so that it reads : “ I, John Janney, do solemnly swear that I will well and faithfully do and perform all the duties and obligations imposed upon me by law as the-of the estate--to the best of my understanding and ability. So help me God.” Sworn to and subscribed before me this 9th day of April, 1866. The mere leaving of the blank in the oath as found in the record would not destroy its effect so as to relieve Janney from any of the responsibility resulting from it. It is part of the mortuary proceedings. It was taken by him in order to qualify as administrator. It appears 'to have been taken before the clerk, and the presumption omnia rite •directly covers the oversight which caused the omission in the body of the oath. Ball’s Administrator vs. Ball, 15 La. 173. True, the blank in the oath is not filled up with the name of the succession. That name, however, is set forth in the caption, and the oath is signed by the affiant ■and by the clerk of the court, by whom it was administered, and is immediately on the same paper followed by the appointment in due form.

5. That Young’s judgment was not rendered contradictorily with the heirs.

The citation on the administrator was sufficient. Even had there been an attorney of absent heirs, no citation would have been required on him. The debt was proven contradictorily with the administrator to the satisfaction of the court. Gibson vs. Foster, 2 An. 509. Even if the judgment be only prima facie binding as to heirs, the final account is open to attack, and there is no, even semblance of, proof as to the invalidity of Young’s claim.

6. The heirs were not necessarily parties to the order of sale; if present, notice to them would not have been a prerequisite to its validity. 21 An. 505 ; 24 An. 530 ; 28 An. 633.

7. The clerk had the power to render the order. Woods vs. Lee, 21 An. 507; 12 An. 612.

8. Was the sale a fraudulent one? Were the proceedings concocted for the purpose of depriving the heirs of their property ? We find no evidence whatever to that effect. It is said that Janney knew at the time he applied for the appointment that the heirs were non-residents, although he alleged his belief that they were within the State. Granted, there is no proof that Young so knew. It is contended that the administration was provoked by Young, and therefore there was a privity between Young and Janney. Young had a right to provoke the administration. He was a creditor. It is charged that the attorneys for Young were the attorneys for Janney. The proceeding, in the succession were conducted by Messrs. Sparrow and Montgomery, the attorneys for Janney, while Young seems to have been represented by Messrs. Mayo and Spencer. After the rendition of the judgment in favor of Young, after the sale, after the payment of his claim, the final account seems to have been made in the name of Janney by Messrs. Mayo and Spencer. There is no evidence whatever of any combination or conspiracy. Young contradicts it by his answer and Janney by his testimony.

The property appears to have been sold for its just value, although for less than the appraisement which was made on the twelfth day of June, 1867. But the proof is complete that between the day of the inventory and the date of the sale the property was swept over by a disastrous overflow. One of the witnesses says that he saw the property in the latter part of 1867, and that the water was deep enough to float a steamboat. There is no contravening proof. It is shown that the land in the vicinage was offered for a less price than that brought by the land in controversy. The property was regularly advertised, regularly offered for cash without a bidder, regularly adjudicated to Young at the second offering without there being any proof whatever of any combination by which the obtaining of a just price was prevented.

The bill of exceptions taken to the admissibility of the testimony showing the value of the property, we think, was not well reserved. The charge of fraud clearly made it competent for the parties to show the actual value of the property. The claim that Young was engaged in a conspiracy to defraud the heirs is manifestly destroyed by the proof in the record that the fact of the sale was directly communicated by Young’s attorneys to the husband of the major heir, who was absent.

Mrs. Herriman died in Texas ; her heirs were Laura M. Herriman, wife of Dr. Edward Merrill, and Laura Sarah Herriman, a minor. At her death, she left property in Texas which was taken charge of by Dr. Merrill, her administrator. The record shows that before the sale Judge Mayo advised Dr. Merrill of the proposed sale, and received in reply a letter disclaiming all interest in the succession on account of its insolvency, the letter being as follows :

“ Waco, Texas, June 30, 1867. Your letter came duly to hand; in reply I can only say that I do not see that I can do any thing about the plantation. I am not able to buy it in. The estate is so much involved that I have no idea the place will sell for enough to pay the debts. The only one that it will affect will be Messrs. M. D. Cooper & Co., I suppose. They, I reckon, can afford to give more than any one else.” * *

This acknowledged insolvency was made manifest by the account, and is equally shown to have been the case by the proof in this record. It is worthy of note that there .is no evidence impugning the amount or validity of Young’s debt, and the whole matter as we determine it resolves itself into the simple question of the right of an heir in an insolvent estate administered by an administrator to annul the entire mortuoria because of the non-appoint.ment of an attorney for absent heirs, not only in the absence of all fraud, but in face of the fact that knowledge of the proceedings was conveyed to the husband of the only major heir.

The complaint as to the fact that the sheriff’s deed by the addition of the words “ the south eighth thereof,” made the sale one of a divided instead of an undivided eighth is erroneous. The adj udication and not the deed vest the title. O. 0. 2608 ; O. P. 695. The inventory correctly described the property, as did the order of sale, the advertisement, and the sheriff’s return. The answer of the defendant disclaimed all interest, title, or possession to any but the undivided eighth. The judgment of the lower court was clearly rendered with reference to this admission; it did not quiet the defendant in the title to and possession of the property not bought, but of the one undivided eighth which was sold. The opinion we have formed on the merits dispenses us from passing on the exception filed by Janney.

The judgment is affirmed.

Rehearing refused.

Mr. Justice Spencer being recused takes no part in this decision.


text:
    No. 7378.
    Elizabeth M. Taylor vs. Acquilla McElvin et al.
    A married woman who has no family dependent on her individually for support,, and whose husband is ingood health, attends to his ordinary avocation, and' owns more land than the law exempts from seizure, can not claim the benefit of' the homestead act of 1805.
    APPEAL from the Sixth Judicial District Court, parish of St. Helena. Duncan, J.

      Wright & Lea for plaintiff and appellee.

      O. P. Amacker, J. E. Wilson, and’IT. M. Carter for defendants and' appellants.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff, a married woman, injoins the sale of one hundred and sixty acres of land, with the buildings thereon, which were under seizure at the instance of McElvin, to satisfy our decree-rendered last year. McElvin v. Taylor, 30 Annual, 552. The ground of injunction is, that she is entitled to a homestead under the law of 1865. Rev. Stats, secs. 1691 et seq.

The husband of the plaintiff is living, is healthy, and personally attends to the management of his business, which is farming. There-are three children, one of whom as a witness in the case says My father, the husband of the plaintiff, is living. The general management-of the farm is left to my father’s judgment. He is a farmer, and makes-his living by farming. For a man of his age, his health is very good. He generally superintends the management of the place. He owns some pine woods land in his own name — sixty acres. It adjoins the homestead place on the south side.” Further on, he sa/s ; — “ The plaintiff has three children living with her, two daughters and a son, two of whnm are minors. She lives on the land seized by McElvin. The three children, I suppose, are dependent on their parents for a support.”

The son is the witness, and his supposition, even if we accord to it the force of a proof, is that himself and his sisters are dependent, not on the plaintiff, for support, but on both parents. The record contains evidence that his father, the husband of the plaintiff, is the owner of one hundred and twenty-one acres of land, besides the sixty acres mentioned above, having successfully resisted the payment of a mortgage to the Mississippi Mills Manufacturing Company, given by him upon that quantity of land.

That a married woman, though separate in property, is not entitled to a homestead under these circumstances, would seem indubitable. Barron v. Solibellos, 28 Annual, 355. And it cannot be contended, that this case falls under the operation of the construction of the homestead act, applied in Hardin v. Wolf, 29 Annual, 333. where the husband was a deaf mute, an imbecile, who could give no assistance in providing for the wants and necessities of the family. We do not pass upon that question in this case, but rest this decision on the simple ground that the plaintiff is not in the condition of that debtor, for whose relief the homestead law was made. She has not a family dependent on her for support. Her husband is not infirm, but on the contrary attends to the farm, aDd owns more land than the law deemed necessary to assign to any impoverished debtor. To sustain such a pretension as is set up here by the plaintiff, would be offering a premium to improvidence, not a boon to misfortune.

Our conclusion on this part of the defence dispenses with the necessity of considering the other matters relied on. The verdict and judgment are erroneous. Therefore

It is ordered and decreed that the verdict of the jury is set aside, and the judgment of the lower courtis avoided and reversed, the injunction is dissolved, and that the defendants have judgment against the plaintiff, upon her demand, and for their costs in the lower coprt, and for costs of appeal.


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    No. 7389.
    Sarah Gordon vs. N. K. Knox.
    The district court is without jurisdiction of a suit by an administratrix to compel a creditor of the succession, who has had certain succession property sold under executory process, to pay over the proceeds of the property for distribution between herself and her minor children. The object of such a suit is to settle a succession, which the parish court alone has authority to do.
    Partial payments inscribed on a promissory note, and signed by the deceased maker (whose signature is provable by parol testimony) are admissible in evidence to prove interruption of prescription.
    As to the vendee, the vendor’s lien is not lost for failure to record it within six days of the sale.
    If more than ten years have elapsed from the record of a mortgage it may yet be re-inseribod, and from the date of such re-inscription it will have effect as a mortgage.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Bouge. MoVea, J.

      B. W. Knickerbocker and G. D. Favrot for plaintiff and appellant.

      Herron, Bird & Beale for defendant and appellee.
   The opinion of the court was delivered by

Manning, O. J.

The defendant on Sept. 13, 1852, sold a house and lot in the town of Baton Bouge to George Gordon for §650, payable Feb. 1,1853, with interest from day of sale. The act of sale contained also a. mortgage upon the property, and a retention of the vendor’s lien, to-secure the payment of the purchase price, and was recorded in the Conveyance book on the same day of its execution; but not in the Mortgage book until the 21st of same month. The mortgage was re-inscribed August 29, 1865.

In the meantime viz. on March 11, 1862, Gordon gave a mortgage-on the same property to Michael Devince for $310, bearing eight per centum interest. Gordon died in 1867, and his widow, the present plaintiff, became his administratrix, and qualified as natural tutrix to-his childreu. The movables were sold, and consisting chiefly of an un-' gathered cotton crop, the proceeds did not suffice to pay more than the-charges for gathering it, and the other privileges resting upon it.

Pending these mortuary proceedings, viz on Sept. 19,1867, Knox obtained an order of seizure and sale of the mortgaged property, after the usual notice had been served on the present plaintiff as administratrix, and bought it at the sale thus provoked for $1,150.00. The sum of $717.13 was applied to the satisfaction of the order of seizure and sale, and the residue was retained in his hands to satisfy the previous mortgage. Eor it is necessary to observe that Gordon’s mortgage to Devince was given in March, 1862, and that Knox’s mortgage was not re-inscribed until 1865, thirteen years after its date. Devinee’s mortgage was subsequently cancelled at Knox’s instance, and presumably upon the production by him to the Becorder of his payment of the Devince mortgage.

Precisely ten years after the issuing of the order of seizure and sale, viz Sept. 19,1877, the widow Gordon instituted this suit, the object of which is to compel Knox to pay to her the proceeds of sale of the-mortgaged property. The suit is in her double capacity of administratrix of the succession, and tutrix of her children, and she alleges that she is a widow in necessitous circumstances, and as such is entitled, with her children, to one thousand dollars from the succession, which is a. privileged claim ranking the mortgages — that Knox’s vendor’s lien was lost because not recorded within six days, and his mortgage was lost because the note, secured by it, was prescribed. She prays judgment against him for the sum claimed, and that the Court will order one thousand dollars thereof to be paid to her and her children, and Knox’s-mortgage and vendor’s lien be declared null and void.

The suit is in the district court.

The defendant excepted that the petition disclosed no cause of action, which being overruled, he pleaded what is equivalent to the general issue.

The plaintiff complains that Knox was really, by his appropriation and distribution of the proceeds of sale, undertaking to settle the sue-cession, and loses sight of the fact that, while objecting to his assumption of authority, she is herself asking the district court to settle it, and distribute the fund arising from the sale as in a mortuary proceeding. It is unnecessary to say that the district court cannot legally usurp the functions of the parish court in that particular, and that portion of the •demand was outside of its jurisdiction. As to the other part of the demand, of which the district court had jurisdiction, the administratrix should have interposed her plea of prescription when the order of seizure and sale was about to be executed. She was duly notified of the executory process, and had time and opportunity to avail herself of that, or any other valid ground for arresting the process. The court rightfully issued it. Williamson v. Richardson, 30 Annual, 1163. But the evidence in this record shews that the note was not prescribed. It matured Eeb. 1,1853. Payments were made on it Nov. 29, 1853,-Dec. 26, 1854, May 1857, Nov. 16,1858, and Jan. 13, 1863, the last credit being signed by Gordon, the debtor. The suit was brought and citation served in less than five years from the last date.

The plaintiff insists that these credits are of no avail in interrupting prescription, because parol evidence is inadmissible to prove an acknowledgment or promise to pay a debt by a deceased person, or an actual payment, so as to take the debt out of prescription. The payments were in writing, and the last of them, on the same paper, was signed by the debtor himself, and the proof was not therefore parol. The proof of his signature by parol was of course admissible.

The vendor’s lien of Knox was lost, as to third persons only, by the failure to record it in six days, Sue. Marc, 29 Annual, 412, and the failure to re-inscribe his mortgage within ten years gave to Devince’s mortgage precedence over him, but it had effect from the date of its re-inscription. It was a valid, existing mortgage at the time of Gordon’s death, and when executory process issued for its foreclosure, and the vendor’s lien was equally well preserved as to the vendee and those claiming from him.

The plaintiff, as administratrix, neglected to interpose by third opposition at the mortgage sale, and claim the distribution of its proceeds according to the pretensions now set up, and even now the main object of the action is to realize the necessitous widow’s portion, by a distribution of succession funds through the medium of a judgment of the district court.

The lower court gave judgment for the defendant, and that judgment is affirmed.


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    No. 7416.
    Caroline Perry vs. Nicholas Rue.
    Where it appears that after an open and public trial oí a cause judgment was rendered against the plaintiff, and that he made no application for a continuance on account of surprise, and did not ask for a new trial, and abandoned the appeal he had taken, he can not maintain an action to annul the judgment on the ground that it was rendered on false documents, whose existence was known to him before the trial of the first suit, and on the false testimony of a witness whom he made no effort to contradict, or in any way to discredit.
    It is too late to object in this court that under the note of evidence of "Proceedings” oí the court in another suit, matter was introduced that did not properly constitute a part of those proceedings, when it does not appear that any objection was raised below, when the matter was being introduced in evidence.
    APPEAL from the Seventh Judicial District Court, parish of Pointe Coupee. Mahoudeau, judge ad hoc.

      Edward Phillips for plaintiff and appellant.

      Sam. J. Powell and W. W. Leake for defendant and appellee. '
   The opinion of the court was delivered by

Manning, C. J.

This suit is for the nullity of a judgment on the ground that it was rendered on false documents and false testimony, fraudulently introduced in evidence. The defendant excepted peremptorily as follows :

1.That the petition discloses no cause of action.

2.The matters therein complained of have been already adjudged.

3.The judgment now sought to be annulled was appealed by the plaintiff, which appeal was not prosecuted.

4.That this suit is virtually a motion for a new trial.

The exception was sustained, and the suit dismissed, and we think correctly.

The plaintiff had sued the defendant in March 1877 to recover a tract of land, and judgment was rendered for the defendant in the following December, from which the plaintiff prayed and obtained an order of appeal to this court, returnable at the February Term 1878. She abandoned that appeal, and in March of same year instituted this suit.

The ‘false documents’ are said to be copies of a pretended mortgage, and of three notes mentioned in and secured by it, executed by Rue to the plaintiff in 1874, which were introduced to shew that while the plaintiff claimed in her suit to have bought this land from Rue in 1872, and to have owned it ever since, she nevertheless accepted from him a mortgage upon it in 1874. The ‘ false testimony’ is charged to be that of Tournoir, the notary who drafted those documents. It nowhere appears how either the testimony or the documents were, or could be, fraudulently introduced in evidence. The trial was open and public. The plaintiff’s counsel was present conducting it, and there is no intimation that the evidence was introduced in other than the usual mode. The plaintiff alleges in her action of nullity that she was entirely taken by surprise by the introduction of this evidence in the former suit. There was no motion for a new trial, but an appeal was taken and abandoned as already narrated.

There are four vices of form for which a judgment can be annulled, after reciting which, it is provided that nullity may be pronounced in all cases where it appears that the judgment has been obtained through fraud, or other ill-practices, on the part of him in whose favour it was rendered; — as if he had obtained it by bribing the judge or the witnesses, or by producing forged documents, etc. Code Prac. arts. 606-7. One of the earliest interpretations of this article extended the relief to a case where the document was not forged (which is the term used in the article) but merely false. Beauchamp v. M’Micken, 7 Mart. N. S. 605. Later, it was broadly stated that a judgment may be annulled for a cause, not expressly included in those mentioned in the Oode of Practice, when the party attacking it shews he will sustain real injury unless relieved, and this relief cannot be had on appeal, and the case presents facts, on which, a court of equity in other of the States would interfere. Chinn v. Municipality, 1 Rob. 523. And this must be considered as overruling Derbigny v. Pierce, 18 La. 551, as it is approved, and the principle is re-affirmed in Norris v. Fristoe, 3 Annual, 646, and Swain v. Sampson, 6 Annual, 799. But the party applying for relief must not have been guilty of laches, or of negligence. He must exhibit a case where an execution of the judgment would be against good conscience, and it must shew matter, of which the defeated party could not avail himself in the trial of the former suit, or that he was prevented from availing himself of by accident or fraud, or could not have known of before by reasonable diligence.

The existence of the alleged false documents was known to the plaintiff before and at the trial of the first suit. The false testimony of the notary is alleged to be different from his testimony in another case, and the petition now before us states one of the reasons for surprise to be that plaintiff knew what the notary had sworn to before. No effort appears to have been made to contradict him, or confront him with his previous testimony, or to discredit him in any way. The plaintiff appears to have proceeded with that trial, paying but little heed to this testimony, written and oral, and after judgment to have been so well satisfied of its error as to appeal from it. There was no application for a continuance because of surprise, and no motion for a new trial, nor any other effort for her protection. Yery clearly she has not brought lierself within the terms of the Code of Practice, even when enlarged by the judicial construction we have noticed.

The plaintiff’s counsel calls our attention to the term employed in the note of evidence as descriptive of the evidence offered, i. e. the * proceedings ’ and minutes of court in the former suit, and he insists that ‘ proceedings ’ are the minutes and nothing olse, and therefore neither the petition, answer, testimony, nor judgment should have been copied in the record. It evidently was not so understood on the trial. If the plaintiff found the defendant was introducing under the term ‘ proceedings’ what was not properly included under that designation, he should have objected then and there. If we should require of the clerks an adherence to philological accuracy in the employment of terms in their notes of evidence, more than half of the transcripts filed in this court would be found defective.

Judgment affirmed.


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    No. 7431.
    H. M. Knight vs. A. V. Ragan.
    The courts are invested with full power to inquire into and pronounce on the validity of election returns.
    The method for contesting an election pointed out by the various sections of the Revised Statutes of 1870, from section 1421 to 1135 has not been repealed.
    A contested election suit is not amenable to the exception of prematurity when instituted before the Secretary of State has promulgated the result of the election.
    Secondary evidence will not bo admitted in support of a charge of forgery to prove the contents of the original tally sheets, or returns, of commissioners of election, until the non-existeneo of those tally sheets has been shown.
    APPEAL from the Ninth Judicial District Court, parish of Grant. Blackman, J. Trial by jury.

      B. J. Bowman for plaintiff and appellant.

      Alphonse Cazdbat and Bobert P. Hunter for defendant and appellee.
   The opinion of the court was delivered by

White, J.

The plaintiff sues to be recognized as the duly elected parish judge of the parish of Grant. He avers that at the general election held on the fifth of November, 1878, himself and Ragan, the defendant, were candidates for that office. That upon a fair count of the votes at the different precincts of said parish as made by the commissioners thereof he received a majority of thirty-five votes and was fairly and duly elected. That notwithstanding this result announced by the commissioners at the different precincts and bj1- them there tallied the same has been changed and fraudulently altered so as to give to his opponent a majority of the votes cast. That Charles B. Nugent, sheriff and returning officer, with Aurelius Hargis, his deputy, and H. G. Goodman and W. L. Bichardson, fraudulently altered, changed, substituted, and manipulated the vote so as to defeat the result regularly ascertained, tallied, and returned by the commissioners at the various precincts.

The defendant after excepting to the prematurity of the plaintiff’s demand, and after pleading the want of any authority to inquire into the validity of election returns, reserving his rights, answered by a general denial. The case was tried by a jury. One of the jurors having been ■excused, the jury thus composed of eleven rendered a verdict by a majority of one in favor of the defendant, whereupon the plaintiff appealed. We will first consider the exceptions :

We are at a loss to understand upon what theory the defendant predicates his pretension as to the want of legal authority for the contest. It is expressly granted in plain language by section one of act No. 24 of regular session of 1877. Acts of 1877, p. 26. Nor do we understand that the method for contesting an election pointed out by the various sections of the Bevised Statutes from section 1421 to 1435 has been repealed. While sections 1419 and 1421 have been amended by the act of 1877, to which we have already referred, the right to contest was given 'by those articles which were legally existing at the time of their- re-enactment, and the method of contest remained and was as provided for in the various statutes embraced within the already enumerated articles of the Bevised Statutes. We are told that our predecessors have recognized and declared the repeal of all laws on the subject of the right to ■contest an election, and that although the act of 1877 may have anew •conferred such right, the re-creation of the power did not bring into new being the method of its exercise pointed out by the Bevised Statutes. The diligence of counsel, which was of course exercised, has failed to discover, or if discovered, to point us to adjudicated cases in support of the position contended for. Our investigation has led us to a different ■conclusion, and we know of no law or adjudicated case going to the extent claimed.

The exception of prematurity is unfounded. By section one of the act of 1877 the suit for contest must be brought within thirty days after the official promulgation of the result of the election. In the present instance the result of the election was announced by the sheriff on the seventh of November, 1878, and was officially promulgated by the Secretary of State on December 17,1878. The present suit was filed Nov. 13,1878. The position of the defendant is that the official promulgation from which the thirty days are to be reckoned is that made by the Secretary of State, and as this suit was filed before that official promulgation it was not consequently brought within thirty days after the official promulgation. While we think the promulgation of the Secretary of State is the one from which the limitation began we do not understand the statute as preventing the commencement of the proceedings before that period. It prescribes a time after which the suit can not be brought, but does not prevent the exercise of the legal right before the beginning of the thirty-days term.

On the merits, the demand, as we have seen, is based on an alleged fraudulent alteration of the commissioners’ returns, and although such is the entire cause of action those returns are not in the record, nor has •their absence been explained or accounted for. By section 32 of. act No. 58 of the extra session of 1877 the duties of the commissioners of election are thus defined : “ Two tally sheets shall be kept of the count, the tally sheets shall have the tallies marked in lines from the beginning to the end of the page, and the total amount of the tallies shall be written in figures immediately after the end of the tallies'to prevent any alteration thereof.” * * * “ As soon as the votes have been counted and the ballot-box sealed as above provided, the commissioners shall make duplicate compiled statements of the names of all persons voted for and the offices for which they were voted, the number of ballots contained in the box, the number of ballots rejected, and the reasons therefor.” The law makes it the duty of the commissioners of election to deposit •one of the tally sheets and statements with the clerk and to deliver’the others to the sheriff or returning officer. Acts of 1877, p. 32, Extra Session.

By section 2 of act No. 99 of the regular session of 1878 it is made the duty of the returning officer to transmit the original tally sheets along with his compilation of the vote' to the Secretary of State, who therefrom compiles the result and makes public proclamation thereof. In the present case we have said that the tally sheets have not been produced, although the sole cause of plaintiffs complaint was that they had been fraudulently altered by the local returning officers. This singular omission seems to have been caused by the fact that the tally ■sheets not having been found in the clerk’s office, where duplicate originals should have been on file, the plaintiff at once concluded that there were none on file in the Secretary of State’s office, and proceeded to offer secondary evidence of what was the vote tallied by the commissioners and by them returned in order to destroy the official return of the election and thereby inferentially make proof of the forgery or alteration of the commissioners’ tally sheets. This proceeding was to the last degree irregular. The original tally sheets, which the law makes it the duty of the returning officer to forward to the Secretary of State, are •the bases of his action. If altered or forged, their production would be overwhelming proof to that end, and until their non-existence be shown we are unwilling to .form a conclusion from secondary evidence on so grave a matter as the charged forgery by a returning office! or his ■ deputies.

We will therefore remand the case to afford an opportunity of making that proof which it is probable from the circumstances of the case can be supplied, and which we think the ends of justice require should be either supplied or accounted for before the matter at issue is determined.

It is therefore ordered that the judgment of the lower court be reversed, the verdict of the jury upon which it was rendered be set aside, and tha,t the case be remanded to be proceeded with according to law.


author: White, J. Marr, J. Marr, J.

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       No. 7124
    City of New Orleans vs. St. Anna’s Asylum.
    The fact that the rents and revenues of property owned by a charitable corporation are devoted to the charitable purposes for which the corporation was organized, will not exempt such property from taxation. It is only when the property itself is actually and directly used for charitable purposes that the law exempts ' it from taxation.
    The act of incorporation of the St. Anna’s Asylum exempting certain property fromtaxation, did not import a contract which inhibited any subsequent Legisture or Constitutional Convention from annulling or repealing the exemption therein provided for.
    A special law granting to a corporation a certain privilege or franchise, and which contains no express repealing clause, does not restrict or impair the operation of an existing general law which reserves to the Legislature the power to revoke the franchise.
    APPEAL from the Third District Court, parish of Orleans. Monroe, J. ' *

      Sam’l P. Blanc, Assistant City Attorney, for plaintiff and appellee.

      Merrick, Hace & Foster for defendant and appellant.

       This case is now before the Supreme Court of the United States on a writ of error.

   The opinion of the court was delivered by

White, J.

The defendant, a corporation created for charitable purposes by legislative charter in 1853, having acquired in 1874 a piece of real estate situated in this city, consisting of lots of ground with the buildings and improvements thereon, resists the payment of the taxes levied by the city of New Orleans for 1876 on the ground of exemption.

It is conceded on both sides that the property claimed as exempted is a flre-proof cotton-press now rented and used as such, and in no manner directly used by the asylum, although the revenues thereof are applied to the benevolent and charitable purposes of the corporation.

Under this state o£ facts we are of opinion that the ownership of the property by the corporation and the application by it of the revenues derived from the rent does not constitute the actual use covered by the exemption from taxation of property actually used for charitable purposes. We apprehend such exemption to apply to property directly used and not in directly by the application of the rents which may result from it. These conclusions are in accord with the jurisprudence of the State. Nearly twenty years ago this court drew the distinction between property used by a charitable corporation and property from which it derived revenue. New Orleans vs. Congregation Dispersed of Judah, 15 A. 390. Subsequently, in New Orleans vs. Bank of Lafayette, 27 A. 836, this court held that article 118 of the constitution, giving power to the General Assembly to exempt property actually used for church, school, or charitable purposes, was enumerativo and hence limitive ; that all grants of exemption made after the adoption of this provision, of property not in terms covered by it, were void, and that all prior grants of exemption inconsistent therewith were repealed thereby unless protected by contract. In the enforcement of these conclusions in City vs. St. Patrick’s Hall Association, 28 A. 512, it was determined that property occupied by a charitable association for the execution of the purpose of its being might be constitutionally exempted by the General Assembly from taxa" tion; but that an exemption of property belonging to'a corporation and not used by it directly, but only used by applying the revenues received from it, was violative of the constitutional provision already referred to, and hence stricken with nullity.

Under this settled j urisprudence there can be no doubt of the liability of the property in controversy, unless removed from the general rule by some exception. 'Such exception is claimed as resulting from the charter of the defendant corporation, by which it is contended that a contract was created divesting the State of all power to repeal the exemption claimed. The provision of the charter relied on is as follows: “ That the said corporation shall have the same exemption from taxation as was enacted in favor of the Orphan Boys’ Asylum of New Orleans by the act approved March 12,1836.” The provision of the act of 1836 referred to is- as follows : “That from and after the passage of this act, all the property real and personal belonging to the Orphan Boys’ Asylum of New Orleans be and the same is hereby exempted from all taxation, either by the State, parish, or city in which it is situated, any law to the contrary notwithstanding.” The mere existence of this statute would not alone entitle the property to exemption, for as we have already seen all statutory exemptions incompatible with the existing constitutional provision have, by it, been repealed. The solitary question, therefore, is, was this exemption-a contract of such a nature as to invest the corporation with such a right as to remove it from all subsequent legislative control? We think not, and in reaching this conclusion we waive all controversy as to the power of the General Assembly to divest its successors of so essential an attribute of sovereignty as the power of taxation. We grant to its fullest extent the doctrine of contract as resulting from the creation by the General Assembly of a private corporation. When the act of incorporation relied on was passed the general laws of the State provided as follows: “ A corporation legally established may be dissolved : 1. By an act of the Legislature, if they deem it necessary or convenient to the public interest; provided, that when the act of incorporation imports a contract, on the faith of which individuals have advanced money or engaged their property, it can not be repealed without providing for the re-imbursement of the advances made, or making full indemnity to such individuals. * * * O. 0. of 1825, art.-438. This article existed in the Gode of 1808, and indicates an anticipation by the wise and enlightened men by whom our Code was compiled, not only of the doctrine of contract subsequently enunciated by the Supreme Court of the United States, but also a keen appreciation of the dangers to society resulting from paralyzing the power of subsequent legislatures to legislate for the public convenience or well being.

This general provision being in existence at the time of defendant’s grant, it became by necessary legal implication a part of it, and reserving as it did the right to repeal the charter whenever convenient to the public interest, reserved also, as the greater contained the less, the same absolute power of modification. The charter was a special law and contained no repealing clause. Acts of 1853, p. 228. It did not therefore expressly repeal the general law, nor did it do so by implication, for thefe is no incompatibility between the grant of a franchise or privilege and a reservation of the power to revoke when deemed necessary for the public interest. Even had the act of incorporation contained the usual clause repealing all laws inconsistent therewith, our conclusion would be the same, for the repealing clause would have to be express in its terms to include the repeal of a general law not in terms conflicting with the later law, nor can it be said that the general law was not intended to apply to corporations by which a contract was created, for it in express words embraces charters of that character. The application of a prior general law to legal rights acquired by an act of incorporation would be only applying to such rights the legal provisions applicable to other legal obligations, for the general theory, as to the existence of legal rights, is, that they are to be examined with reference to the general law in being at the time of their acquisition. In Guillotte vs. New Orleans, 12 An. 434, Mr. Chief Justice Merrick said : “ In these and like eases there is no pretense that the obligation o.f a contract had been impaired because the law in force at the time enters into and forms part of the contract.”

We need not however seek to fortify our conclusions by authority drawn from analogy. That the provisions of the article of the Code to which we have referred entered into the grant of subsequent legislative charters has long since been enunciated from this bench. “I have,” said Mr. Justice Rost as the organ of this court in Palfrey vs. Paulding, 7 An. 366, “ examined the case on the hypothesis that an acceptance of the act of 1839 on the part of the bank was necessary. But I do not wish to be understood as deciding that point. If charters are contracts, they are contracts which the legislature may in certain cases dissolve. The powers it possesses over charters subsequently granted, by the first paragraph of article 438 C. C. are not the less real for having been dormant heretofore.” * * * * * *

The jurisprudence of the Supreme Court of the United States and of the States of this Union is full of examples of the enforcement of the principles which this court thus expressed, and to which we give our adhesion. In many of the other States as a consciousness developed of the far-reaching effects of the doctrine enunciated by the Supreme Court of the United States in Dartmouth vs. Woodward, general laws were enacted reserving to the law-making power the right to alter or repeal any subsequent charters. Such statutes have been uniformly held to enter into all charters granted thereafter, and thereby to take them out of the operation of the law of contracts as taught in Dartmouth vs. Woodward.

That a general power to repeal or modify a charter enters into the charter, and pro tanto divests it of the character of a contract, is now the settled opinion of the Supreme Court of the United States. “ Such power, also, that is the power to alter, modify, or repeal an act of incorporation,” said Mr. Justice Clifford in Miller vs. the State, 15 Wall. 488, “ is frequently reserved to the State by a general law applicable to all acts of incorporation or to certain classes of the same, as the ease may be, in which case it is clear that the power may be exercised whenever it appears that the act of incorporation is one which falls within the reservation, or that the charter was granted subsequent to the passage of the general law, even though it contains no such condition nor any allusion to such a reservation.” Said the same learned justice, as the organ of the court in the case of Holyoke Company, vs. Lyman, 15 Wall. 511, in speaking of a claimed contractual exemption from taxation resulting from a charter, “ such a charter when accepted by the corpora-tors is undoubtedly a contract that the powers, privileges, and franchises granted shall not be restrained, controlled, or destroyed without their consent, unless a power for that purpose is reserved to the legislature in the act of incorporation or in some prior general law in operation at the time the act of incorporation was passed.” See, also, Tomlinson vs. Branch, 15 Wall. 469 ; Railroad Company vs. Maine, 96 United States, 510.

These authorities alone would be decisive of the present controversy; but they do not stand alone; they are but the expression of the concluded opinion of the various State courts, where the question has been presented for adjudication. “But all acts of incorporation,” says the Supreme Court of Massachusetts in General Hospital vs. State Mutual Assurance Company, “ passed since the eleventh of March, 1831, which contain no express provision limiting their duration, are by the provisions of the statutes of the commonwealth existing from that period to the present subject to alteration, amendment, or repeal.”

“The act incorporating the defendants was passed in the year 1844, long after the enactment of the revised statutes, and was of course accepted by the corporators subject to the provisions of those statutes.” 4 Gray 234.

A charter is a contract between the State and the corporators, and the corporation takes the grant subject to the limitations contained in the act of incorporation. If no power of repeal is reserved, none can be exercised; but when a charter itself or a general statute provides that the charter is subject to repeal by the legislature at its pleasure, the legislature has the right to exercise its power summarily and at will, and its action being a legislative and not a judicial act, can not be reviewed by the courts, unless it should exercise its powers in such a manner as to clearly violate the principles of natural justice. Lathrop vs. Stedman, 42 Conn. 583 ; Snydam vs. Moore, 8 Barb. 362 ; Olive, Lee & Co.’s Bank, 27 N. Y. 9 ; Hyatt vs. Whipple, 37 Barb. 595 ; Commonwealth vs. Fayette R. R. Co. 55 Pa. 452 ; Bangor vs. Smith 47 Me. 34 ; West Wisconsin R. R. Co. vs. Supervisors, 35 Wis. 257.

By a provision then in the defendant’s charter the right to repeal the same, and necessarily the right to modify, for the greater included the less, was by necessary legal implication reserved, and the exercise of this reserved power by the convention of 1868 divested no vested right and impaired the obligation of no contract. True, the general law in existence at the time of the granting of the charter relied on, while reserving the right to repeal whenever deemed convenient for the public interest, provided also that when the act of incorporation imported a contract upon the faith of which individuals had engaged their property or advanced money that the repeal or modification could only be made by providing for a re-imbursement of the money actually advanced.

This restriction upon the reserved power however has no application to the case before us, because the property now claimed as exempt was acquired by gratuitous donation by the corporation after the adoption of the constitution of 18C8, and consequently after the repeal of so much of their charter as exempted from taxation their property not embraced within the limits of exemption allowed by that constitution. When a case of prior acquired property presents itself it will be time enough to express our opinion thereon.

These views dispose of the matter at issue, and fix beyond peradventure the liability of the property to the taxation claimed. We have not considered the arguments of expediency which have been so strongly pressed upon our attention. Our duty is to enforce the constitution and apply the law as we find it.

The judgment is affirmed.

Marr, J.

I do not concur in the opinion and decree in this case; and reserve the right to file hereafter my dissonting opinion; should I think proper to do so.

CONQUBRINO Opinion.

Marr, J.

Since the decree was pronounced in this case, before and after the application for rehearing, I examined the grounds of my dissent much more carefully than I had been able to do previously. The result is my conviction that the decree as renderod-is correct. I concurred in the refusal to grant a rehearing; and desire now to express my concurrence in the decree.


text:
    No. 7413.
    State ex rel. School Board, Parish of St. Tammany, vs. Joseph Cousin et al.
    Where the sureties on a five-thousand-dollar bond are jointly sued for an amount aggregating two thousand dollars, this court will have jurisdiction, although the demand against each surety is less than S500.
    Where the plaintiff who sues the sureties on an official bond alleges the hopeless insolvency of the principal, the sureties will not deprive themselves of the right of discussion, to which they are ontitled under the law, by pleading an exception that admits the truth of the averment of insolvency.
    APPEAL from the Sixth Judicial District Court, parish of St. Tammany. Duncan, J.

      Jas. M. Wright, district attorney, for plaintiff and appellant.

      Ellis & Ellis for defendants and appellees.
   The opinion of the court was delivered by

White, J.

Plaintiff asks to recover of defendants the sum of ^2030 56, with five per cent interest from July 31, 1874, until paid, as securities on the official bond o£ George G. Ingram, deceased, late school treasurer of the school board, parish of St. Tammany. The bond sued on is for five thousand dollars, and was signed by the defendants as follows: Joseph Oousin, A. G. Schoultz, Charles W. Bradley, N. Page, T. H. Dutseh, Stephen Miseli, W. R. M. Galloway, and W. S. Barker, for the sum of five hundred dollars each, and Harriet Newell for the sum of one thousand dollars, she having signed the bond twice for five hundred dollars. The petition, after reciting the receipt by Ingram as school treasurer and his failure to account, and his having died hopelessly insolvent, asks judgment against Mrs. Newell for one fifth the amount sued for, and against the remainder for one tenth each jointly and severally.

Harriet Newell filed the plea of discussion and a general denial. Subsequently, all the defendants filed the following exceptions :

First. That the court was without jurisdiction ratione materias.

Second. No cause of action.

Third. Prematurity.

1. As to Harriet Newell, the court unquestionably had jurisdiction, and we think equally so as to the other defendants. True, the prayer was for judgment against each for less than five hundred dollars ; but the suit was on the bond, which was for five thousand dollars, and to enforce a liability for a breach of the conditions thereof to the amount of over two thousand dollars. The case comes directly within the reach of Lartigue vs. White, 25 A. 291.

2. The exceptions no cause of action and prematurity, we presume, were intended to cover the same ground, that is, the plea of discussion. Sureties on official bonds are entitled to discussion. R. S. 354. The plaintiff averred that the principal had “departed this life hopelessly insolvent, not possessed of any thing out of which” the sum due could be made by judicial process. The exception admitted the truth of this averment; but we do not think it sufficient to deprive the securities of the benefit of discussion allowed by law. The principal may have died insolvent and not possessed of property, and yet ample means be in existence from which to make the judgment before resorting to the sureties. The law provides for and the petition averred the recording of the bond in the proper mortgage book, and when so recorded it operates a mortgage upon the property of the principal therein. For the greater security of these bonds the law lias seen proper as it were to write on them a sweeping clause, de non alienando, as provided in 354 R, S., which says : “ Whenever an execution shall issue it shall be lawful for the officer to whom it may be directed to seize and sell according to law any lands which may have belonged to the principal obligor at the date of the registry of his official bond, without regard to any subsequent transfer or change of title, and in whatever hands the same shall be found.” * * * *.

Applying this provision, it is obvious that the insolvency of the debtor and his not possessing property was not a sufficient averment to deprive the surety of the right of discussion ; even if such right can as to a surety on an official bond be negatived by averments complete enough to import fully the fruitlessness of an attempted discussion — as to which we express no opinion.

Judgment affirmed.


author: Spencer, J.

text:
    No. 7306.
    City of New Orleans vs. Eugene Waggaman.
    When the sheriff and his sureties are sued for money collected by him under a writ issuing from a certain court, they can not, under the plea of a general denial, raise the defense that the court was without jurisdiction to issue the writ.
    Act No. 30 of the extra session of the Legislature of 1870 creating a new charter for the city of New Orleans, authorizes the city to issue writs bf provisional seizure for unpaid licenses, and that act is not unconstitutional.
    The sheriff is authorized to receive money in satisfaction of a money demand to enforce the payment of which a provisional seizure has issued-, and hence his sureties are bound for such money.
    The sheriff commits a breach of his bond when, on the demand of its owner, he fails to pay over the money collected by him.
    The agreement of parties to leave a fund in the hands of the sheriff, of which he is the legal custodian, does not release him from responsibility for that fund. The sureties of a sheriff are entitled to have the property of their principal discussed before execution issues against them, but are not entitled to the right of division.
    Where the sureties on a bond bind themselves severally for a certain amount, each is liable up to that amount for any debt he may be bound for as surety.
    REPEAL from the Third District Court, parish of Orleans. Monroe,

      Sam. P. BTane, Assistant City Attorney, for plaintiff and appellee.

      Thos. & C. W. Bilis, Breaux, Fenner & Hall, and J. H. Grover for defendants and appellants.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff sues Waggaman, late Civil Sheriff'of Orleans, and the sureties on his bond to recover $3535 45, alleged to have been received and collected by him, under sixty-one writs of provisional seizure, issued against various parties by the late Superior District Court, at the suit of the city, for unpaid licenses, $1500 of which sum it was consented he should hold until the termination of four of said suits, then to be paid to the party obtaining a judgment in his favor. It is alleged that said four suits were decided in favor of the city. It is shown that these allegations of plaintiff are substantially true.

Waggaman pleaded a general denial. The sureties excepted that the petition disclosed no cause of action as to them; and reserving their exception answered in substance that they can in no event be held for more than the amounts for which they severally bound themselves on said bond ; that no execution can issue as to them until the property of their principal shall have been discussed ; and that in the event of judgment against said principal they will point out property of said principal and advance the costs of discussing it. Therefore they plead the benefit of division and discussion. In conclusion they plead a general denial of the liability of Waggaman or themselves.

There was j.udgment for plaintiff for §2172 75 — against Waggaman for the whole, and solidariiy with him against each surety, up to the amount for which each had bound himself, and to amount of judgment against those whose bond exceeded the judgment. The defendants appeal.

In this court for the first time, and in argument only, it is urged that in fifty-four of the sixty-one license suits aforesaid the Superior District Court was without jurisdiction ratione material, for the reason that they did not exceed in amount §100, exclusive of interest; and the act No. 47 of "1873, conferring jurisdiction of all tax suits on said court is attacked as violative of act 83 of the constitution.

If the suit before us were one of those tax suits, and the defendant were urging want of j urisdiction ratione material, we would be called upon to decide it; but the case before us is one to compel the sheriff and his sureties to pay over moneys received by virtue or at least under color of writs issued in those suits. The question of jurisdiction in the court issuing them is therefore a mere collateral point, and, if pleadable at all by the sheriff and his sureties (upon which we express no opinion), it could only be done as a special defense; and is not admissible under a general denial. If the sheriff were being sued for failure to execute the writs, we think that as cause therefor he might show that the court issuing them had no authority, but then only by a special plea.

It is further objected in argument that there is no law authorizing the issue of writs of provisional seizure for unpaid licenses. Section 20 of the city charter (see act No. 30 of extra session of 1870) expressly provides that remedy. It is said this section is unconstitutional, as no mention is made of licenses or license suits in the title of the act. The title of the act is : “ An act to extend the limits of the parish of Orleans, and to change the boundaries of the parishes of Orleans and Jefferson, and to consolidate the cities of New Orleans and Jefferson, and to provide for the government of the city of New Orleans and the administration of the affairs thereof, etc.” The act creates and grants the city a new charter. The title, we think, sufficiently designates its purpose, and section 20 is germain thereto. See Southern Bank vs. New Orleans (not yet reported) and authorities there cited.

On the merits, the principal question is did the writs of provisional seizure authorize the sheriff to receive from the debtors against whose goods, chattels, and effects they were issued sums of money?

This writ issues on a money demand and “in order to secure its payment.” O. P. 284. It commands the sheriff to seize the property of defendant in order to secure plaintiff’s claim.

Where the defendant tenders to the officer executing the writ the full amount in money of that demand, in satisfaction of the same, the sheriff can not refuse to take it, and subject the debtor to the inconvenience, loss, and expenses of a seizure! The sheriff in such case would be a trespasser, if he persisted in seizing under such circumstances. '

But it is said that in these cases the writs did not specify the amounts due plaintiff. That omission does not change the nature of the writ. Again, the writ commanded the sheriff to seize the goods and personal effects of the defendant. If the sheriff could lawfully receive or take furniture and other chattels under it, why not money ? The money in these cases was delivered to the sheriff under the writ “in order to secure ” plaintiff’s demand. He had a right — it was his duty— as sheriff to receive it, and he and his sureties are bound therefor.

It is said that plaintiff’s petition alleges no breach of the bond. It alleges that Waggaman as sheriff received these sums, and that after repeated demands in writing he fails and neglects to pay. This was a breach of his bond.

We do not see that the fact of the city attorney giving the sheriff in these suits a discretion as to the cases in which he should seize in anywise affects the case. It was very proper, in order to save the city the costs of fruitless seizures. No more did the agreement between the city and the defendants in the four cases to leave the fund in the hands of the sheriff until final decision relieve the sheriff of his official responsibility. He was the proper custodian of the fund until legally withdrawn from him by bond of one or the other party or by decree of court. The parties agreed not to exercise this right of release.

The sureties of a public officer are by statute entitled to have the property of their principal discussed before execution issues against them. R. S. 2417.

The sureties in this case are not bound in solido, but are bound severally. The bond is for $50,000 ; but each surety does not bind himself for the whole, or for the same. sum. Some bind themselves for $2000, some for $3000, some for $5000. The aggregate of their several obligations is $50,000. This is not technical solidarity. Sec. 2, R. 538. But the plaintiff is entitled to a judgment against each for the whole debt, up to the amount for which each is obligated in the bond. The judge a quo has substantially done this by condemning all those who are bound for as much as $2000 to pay in solido that sum ; and by condemning those who are bound for a sum greater than the judgment to pay in solido the excess of the judgment over $2000. It would perhaps have been theoretically more correct to condemn separately each of those whose obligation was less than the judgment to pay to the extent of his obligation, and each of those whose obligation exceeded the judgment to pay the whole judgment, with the stipulation that there should be but one satisfaction. We know no law that gives these sureties the right of division as against the creditor. What their rights are inter sese will have to be determined should one of them pay all or more than his share and call on the others for contribution.

The judgment below must be amended by adding thereto as follows : “ It is further decreed that no execution shall issue on this judgment against said sureties until the property of the principal, Eugene Waggaman, shall have been discussed;” and it is now ordered and decreed that the same be so amended, and that as thus amended said judgment is affirmed, appellee to pay costs of this appeal.

Rehearing refused.


text:
    No. 6932.
    State vs. Simon St. Geme.
    One who is being tried on a charge of murder has a right to demand that the court should instruct the jury that if they find that the deceased had previously threatened the accused with his life, or some great bodily harm, and that subsequently they met without design, and from the motions and actions of the deceased the accused was induced to believe, and had reasonable ground to believe that the deceased was about to carry his threats into execution, the accused had the right to defend himself even by killing his assailant if necessary to protect himself, and the jury should acquit, although it should afterwards appear that there was no such design on the part of the assailant.
    Although in charging the jury in a criminal case the court need not charge in the very words asked, provided a charge substantially covering every thing requested be given, it is yet error in the court to designate a perfectly legal request to charge as illegal.
    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.

      H. N. Ogden, Attorney General, for the State.

      Carroll & Marero for defendant and appellant.
   The opinion of the court was delivered by

White, J.

The defendant having been indicted for murder, convicted of manslaughter, and sentenced to imprisonment at hard labor for twenty years, appeals.

During the trial seven bills of exception were reserved to rulings of the lower court. The opinion we have formed of one of them will render it unnecessary to notice the others.

The prisoner’s counsel requested the court to charge the jury : “If you find that the deceased had previously threatened the accused with his life, or of doing him some great bodily harm, and that subsequently they met without design, and from the motions, actions, and hostile demonstrations of the deceased, he was induced to believe, and had reasonable ground to believe, that the deceased was about to carry his threats into execution, the accused had a right to defend himself even by killing his assailant if necessary to protect himself, and you should acquit, although it should afterward appear that there was no such design on the part of the assailant.” The court refused to give the charge in full as requested, on the ground that such was not the law of self-defense, but instructed the jury that it was their province as reasonable men to decide, in view of. the testimony, whether in their opinion the accused had reasonable ground to consider himself in danger of losing his life, or of suffering great bodily harm.

We think there was error in the refusal to give the charge, and in the statement that such was not the law of self-defense. We can see nothing objectionable in the charge as requested, and think, instead of not being the law of self-defense, that it is a fair and carefully worded statement of that law as expressed by this court, as stated by commentators, and applied in other States. State vs. Chandler, 5 A. 489 ; State vs. Mullen, 14 A. 577.

It is contended that the requested charge was illegal, inasmuch as it covered threats whether communicated or not, but its language by no fair rule of construction can be considered as so meaning. Its context obviously contemplates only threats known to the accused at the time of the homicide. If you find that the deceased had previously made threats, and at the time of the homicide the accused had reasonable ground to believe at that moment that the deceased was about to carry his threats into execution, is the statement made. It negatives the claim that uncommunicated threats were intended, because it refers only to threats which the accused believed the deceased to be about to execute at that moment, importing of necessity a knowledge on the part of the accused of the threats which he believed at that moment the deceased was about to execute. These inevitable conclusions, the plain result of the context of the charge, are made more manifest if it were required or possible to do so by bearing in mind the rule that uncommunicated threats, under the laws of evidence, as applied in this State, are inadmissible. We can not therefore presume in the face of the unequivocal language of the asked-for charge that the threats mentioned were such threats as could not have been before the jury.

It is urged that the charge asked was erroneous, as it made the reasonableness of the apprehension a question not for the jury but depending solely on the condition 'of the mind of the accused at the time of the homicide. We are at a loss to understand upon what this position is based. The charge in this particular was, that “if from the hostile demonstrations the accused was induced to believe and had reasonable ground to believe.” If the request had simply covered what the accused was induced to believe or what he thought was reasonable ground, it would be amenable to the objection urged, but qualifying as it did the words was induced to believe by “ and had reasonable ground to believe,” it manifestly left the question of reasonable ground to be passed on by the jury as a question of fact. It is said that the charge does not clearly convey the fact that the danger must be imminent to justify homicide, but such is not the case ; it explicitly expresses the necessity of the danger being present, and likewise makes the commission of a homicide depend for its justification on its having been necessary for self-protection. It is insisted however that even if the charge was in all respects legal, no harm resulted from the refusal of the cortrt to give it, because the charge which was given by the court was substantially what was requested. While we adhere to the rule as stated in State vs. Carr, 25 An. 407, that the court need not charge in the very words asked, providing a full and fair charge, substantially covering every thing requested, be given, we likewise also adhere to State vs. Chandler, 5 An. 489, where we said it was error on the part of the court to qualify a perfectly legal request to charge as illegal. In fact, the wisdom of the rule is well illustrated by the.case now before us. While the charge given by the court was substantially that asked by the prisoner, yet it was not so amplified. The statement of the court that it was not the law of self-defense must have produced its effect on the minds of the jurors, unless they considered that the court denied the legal correctness of a requested charge, and at once gave the incorrect charge as a correct one. They must naturally therefore have considered that the terseness of the charge of the court excluded some matter stated .in the more detailed charge asked and refused as not sound in law, 'thereby seriously impairing the defendant’s rights.

The verdict and sentence are set aside and reversed, and the case remanded to be proceeded with according to law.