text:
    No. 7038.
    Mrs. S. C. F. Logan vs. Harriet Herbert et al.
    A judgment can not liavo the force of res adjudicóla as to one not a party to it.
    Parol evidence, even when not objected to, is not admissible to prove that the owner of real estate agreed that it should be sold as the property of a third person.
    In a suit to revive ti judgment against a succession, the acceptance of service, and waiver of citation by the administrator will be deemed a good service, and will justify the judgment of revival.
    Asale of property which had formerly belonged to a succession, (and which had been validly sold while the succession was in existence) made by the defunct administrator of the succession after it had been closed, and its assets partitioned, is absolutely void, and conveys no title whatever to the purchaser,
    An unrecorded deed transfers the property to the purchaser as against all the world, except creditors of the vendor, and bona fide purchasers from him without notice.
    The registry of a judgment against a party will operate as a legal mortgage on ail the immovables of that party situate within the parish wherein the judgment is registered, whether the deed to such immovables is recorded or not; and such mortgage is good against every body that the judgment debtor’s title to the immovables is good against.
    The prayer of a petition that the sale of a certain immovable be declared void, and that the property quoad the plaintiff’s rights be decreed to belong to 'a certain third person, will not, in the absence of any demand for a seizure and sale of the property, constitute the action an hypothecary one.
    Bo far as relates to creditors holding antecedent mortgages on property, and thejir recourse on the property is concerned, judgments obtained by others against their debtor, estopping him from setting up ownership to the property, are not res adjudícala as to them.
    A PPEAL from the Fifth Judicial District Court, parish of East Felifi. eiana. Wedge, judge act hoc. Trial by jury.

      D. C. Hardee for plaintiff and appellant.

      W. F. Kernan and T. B. Lyons for defendants.
   The opinion of the court was delivered by

Spencer, J.

In 1862 there was a probate sale of the property of Nancy Stevens, by G-eo. W. Catlett, auctioneer. Among the property then sold was the land in controversy in this suit. It was adjudicated to Mrs. Muker for $1275, one third of which was paid in cash, and the balance was represented by her two promissory notes at one and two-years, as prescribed by the court. The auctioneer made.out in due form hisjproctfs verbal of the sale, which was duly signed by Mrs. FI ulcer, but from some cause, perhaps the disorder of the times, he neglected to return it to the clerk’s office. It was found among his papers in 1868, after his death, and put of record in 1870 in the recorder’s office of East Feliciana.

In January, 1863, there was a final partition among the heirs of Ann Stevens, into which was carried the proceeds of these two notes of Mrs. Fluker, which had been cashed by Dr. Barkdull, at the request of Dawson, the administrator of Ann Stevens. Mrs. Fluker went into possession of the land at once, and in 1867 gave H. H. Herbert permission to occupy and cultivate it. Dr. James D. Barkdull, the holder of Mrs. Fluker’s two notes, died in 1865, and they were inventoried as part of his estate.- After the war, in 1867, Mrs. Barkdull, representing her -deceased husband’s estate, visited Mrs. Fluker, and demanded payment ■of these two notes. She paid one of them. Subsequently Mrs. Fluker told Mrs. Barkdull that owing to her financial embarrassments she •could not pay the second note. Mrs. Barkdull says that Mrs. Fluker told her “ she could have the place sold for the second note” — the place ■she had given the note as part payment for.

On ninth February, 1867, Hernán & McVea obtained judgment ■against Mrs. Fluker for $3000 and interest, which was duly recorded in -the mortgage office twenty-third February, 1867, and became a judicial ¡mortgage on all her property in East Feliciana, where she resided, and where the land in question lies. The plaintiff, Mrs. Logan, a widowed daughter of Mrs. Fluker, subsequently bought this judgment, with full ¡subrogation.

Mrs. Barkdull, when told by Mrs. Fluker to sell the land for the note, placed it in her attorney’s hands with instructions to proceed to sell the place. But when the attorney went to get copy of the mortgage, In order to foreclose it, found that it was not of record in the recorder’s ■or clerk’s offices. Mrs. Fluker being heavily involved and sundry judgments against her, including that held by plaintiff, the attorney thought it useless to sue her on the notes, without having the benefit of the vendor’s mortgage securing it. Whereupon, to meet this emergency, and escape the judicial mortgages, the attorney of Mrs. Barkdull, early in 1868, applied to Dawson, the defunct administrator of Ann Stevens, whose estate had been finally partitioned among her heirs five years before, and obtained his consent to file application in his name, as administrator, to sell the property over again as that of Ann Stevens. This, too, when the act of partition of the estate of Ann Stevens, on file, showed that the heirs had received and partitioned among themselves the price of this, very land. But the order to sell was obtained, the property advertised, and sold to Mrs. Barkdull on fourth March, 1868, for $500. The particulars of this sale are established by parol, as the sheriff seems never to have made any return thereof of any kind.

On the seventh March, 1868, Mrs. Barkdull, by'notarial act duly recorded, sold this land, with full warranty, to Harriet Herbert, a colored woman, who was represented by H. H. Herbert, of whom she was a servant and former slave. This H. H. Herbert and Harriet were at the time occupants of the premises by permission of Mrs. Fluker, who resided at her homestead on the adjoining plantation. Mrs. Fluker testified that she never knew, heard of, or authorized the foregoing proceedings, and we are entirely satisfied of the truth of her statement.

But to proceed with this remarkable case. Mrs. Logan, some time after this sale to Harriet Herbert, issued execution on the Kernan and McYea judgment, and seized this land as the property of Mrs. Fluker, the judgment debtor. Harriet Herbert enjoined the sale on the grounds detailed above, averring her ownership, and pleading that Mrs. Fluker was estopped by her conduct and acts from claiming the land; that she had told Mrs. Barkdull to sell it, and could not now complaiD. Mrs. Fluker filed an intervention, which was never served or put at issue, and it is shown she was not allowed for that reason on the trial to offer evidence. The case was tried by jury, who found for plaintiff, and “ dismissing the intervention.” From the judgment on this verdict Mrs. Logan appealed.

The Supreme Court held that Harriet Herbert possessed under a title not simulated, and which could not therefore be attacked by seizure, and affirmed the judgment, “reserving to Mrs.'Logan her right of action to cause the sale from Barkdull to Herbert to be annulled.”

Subsequently Mrs. FI iker brought a direct action against Harriet Herbert to recover this land. On appeal this court, first March, 1875, held that the judgment of dismissal in above named injunction suit was res adjudicata against Mrs. Fluker.

It is useless for us to review these decisions of our predecessors, except to say that we do not wish it understood that we assent to the doctrines they announce.

The present suit is brought by Mrs. Logan against Mrs. Barkdull, Harriet Herbert, and Mrs. Fluker, to have said sale from Barkdull to Herbert decreed a nullity — to have said property decreed to -belong to Mrs. Fluker and decreed to be subject to the payment of plaintiff’s judgment and mortgage.

Harriet Herbert filed an exception, setting up the two judgments above discussed as res adjudicata, and that plaintiff’s petition discloses no cause of action.

These exceptions were properly overruled. The plaintiff shows abundant cause of action. The plea of res adjudicata based on the suit of Fluker vs. Herbert is of course without force as to Mrs. Logan. She ■was no party to it, ami being a mortgage creditor, whose rights antedate that proceeding, can in no sense be said to be bound by a j udgment against Mrs. Fluker, her debtor.

In the suit of Harriet Herbert vs. Mrs. Logan (the injunction suit) the Supreme Court do not pretend to decide that Mrs. Logan did not have a mortgage on this property, or that it was not subject to her mortgage, or that the sale from Barkdull to Herbert was valid. The decision was that Herbert held by a title which was not a simulation, and which could not be indirectly attacked by seizure. It expressly reserves her right to bring this suit;^for if the proceedings by which Herbert claims Mrs. Pluker was divested of title were nullities, then plaintiff’s right to subject it to her mortgage is indisputable. So far as Mrs. Pluker is concerned, she is of course, whether rightfully or wrongfully, cut off by said judgments from claiming any thing in said property; so that if it were to bring $50,000, neither she nor her heirs could claim one dollar of the surplus it brought over plaintiffs debt. The effect of the judgment prayed for would, be to annul said sale and restore said property to Mrs. Fluker’s estate, only quoad the plaintiff’s rights.

The answer is a general. denial, admitting possession, averring ownership by purchase from Mrs. Barkdull, who, it is alleged, acquired from the estate of Ann Stevens, which is claimed to have had the legaL title when Mrs. Barkdull bought. That any equitable title existing in Mrs. Pluker at the date of Barkdull’s purchase Mrs. Pluker “did forego, lose, and transfer unto your respondent by consenting and agreeing to the said sales, and by standing by and permitting and encouraging the same to be made. That this divestiture out of Mrs. Pluker was complete and entire long before any alleged' rights of the plaintiff could or did attach to said land.” She alleges the value of her improvements, prays that Mrs. Barkdull be cited in warranty, and “ if respondent is evicted from said land and improvements that she may have judgment against her therefor,” and that plaintiff’s suit be dismissed and her claim rejected.

Mrs. Barkdull, cited in warranty, repeats and adopts Herbert’s answer in substance, avers her title bona fide, and pleads the prescription of one and five years.

Mrs. Pluker having died, her administrator answered, claiming title: to which the plea of res adjudícala was opposed and is g-.od.

There was judgment rejecting plaintiff’s demands, and she appeals.

There are, in reality, but two vital questions in this case, which it is-necessary to decide, to wit: Pirst, is plaintiff’s judgment still in force? and, second, was Mrs. Pluker at the date of, or subsequently to, the recording of plaintiff’s judicial mortgage, on twenty-third February, 1867, the owner of this land? If she was, plaintiff’s mortgage attached to it; and even if it be true that Mts. Pluker did in March, 1868, “forego, lose, and transfer her rights, by consenting, agreeing, standing by, permitting and encouraging” the sale of the property as that of the estate of Stevens, still she could Dot in that way or any other divest plaintiff of her rights upon the property. It would at most amount to an alienation by the debtor. We regard it therefore, so far as relates to existence of plaintiff’s hypothecary rights, as immaterial whether or not Mrs. Fluker did in fact so divest herself of the property. But we loill say, en passant, that in our opinion the parol evidence allowed to be offered in this case to establish her consent that this property be sold as Stevens’s was clearly inadmissible, especially as no fraud or deceit is charged or pretended against her. If such evidence can be resorted to to divest one of title to real estate, then all I have got to do is to buy your property from a third person, and prove by parol that you consented and agreed to it. We will say further that even if admit'ted without objection (which it was not), the evidence wholly fails to establish the fact. The most that can be made out of it is that Mrs. Fluker told Mrs. Barkdull to make her money out of the land, she was unable to pay the note. This certainly was no authority for the proceedings taken.

As to the question of the existence of plaintiff’s judgment and mortgage, it rests entirely upon the objection that in the suit for its revival Calhoun Fluker, administrator, was not served with citation, but accepted service of the petition and waived citation. We see no possible reason for doubting that this was a good service and justified the judgment of revival. Why should the costs of a service of citation have been imposed upon the estate? There is no pretense that the debt was not an honest and just one, or that it had ever been satisfied. It would be monstrous to maintain that because the Code says one may revive a judgment by citing the debtor, that therefore an answer or acceptance of service would be ineffective as a basis of such revival. Art. 177 C. P. forbids such a conclusion. -

As to Mrs. Fluker’s ownership of this land on twenty-third February, 1867, it is difficult to see how it can be questioned. Nobody disputes, on the contrary every body admits, that she acquired it at probate sale in December, 1862, from the estate of Stevens. Nobody pretends that the sale to her was not regular, legal, and bona fide. Nobody disputes the fact that the heirs of Stevens received and partitioned the proceeds of this sale pnong themselves five years before Mrs. Bark-dull’s pretebded purchase. Nobody disputes that Mrs. Barkdull and her attorney, and Dawson, the administrator, and II. II. Herbert, who did all this business for and in the name of his servant Harriot, all knew perfectly well that Mrs. Fluker owned and had continuously possessed this land since 1862.' Mrs. Barkdull held her two notes for the price and collected one of them. Herbert was Mrs. Fluker’s tenant. Nobody pretended that these notes of Mrs. Fluker were debts of Mrs. Stevens. Yet, in the face of these facts, these parties enact the farce of putting up this property as belonging to the estate of Stevens, which had, five years before, sold, and received the price of it; and they tell us they did so to pay Mrs. Eluker’s note! Is it necessary for us to say or cite authority to show that such proceedings are absolutely void, and vested no title whatever in Mrs. Barkdull? If Mrs. Barkdull ever had the shadow of a title to that property, she did not get it by that sale from the estate of Stevens. We have seen that if she ever acquired a title from Mrs. Eluker she did so after plaintiff’s mortgage had attached. But we have also seen that, in fact, she never derived or had any title from Mrs. Eluker. Even the parol evidence, illegally admitted, utterly fails to show that Mrs. Fluker ever sanctioned or knew of this transaction. But it is said the deed from the estate of Stevens to Mrs. Eluker was not put of record until 1870, and that of Harriet Herbert from Mrs. Barkdull was recorded in 1868, and that the oldest recorded title must prevail; that Mrs. Logan’s mortgage could not attach until Mrs. Eluker’s title was recorded, and that before it was recorded Mrs. Fluker had been divested of her title by the proceedings narrated above.

To this we answer, first, that Mrs. Eluker never was divested of title; and, second, that an unrecorded deed transfers the property to the purchaser just as effectually as a recorded deed, as against all the world, excep/t creditors of the vendor, and bona fide purchasers from him without notice.

Mrs. Barkdull was neither a creditor of Mrs. Stevens (Mrs. Eluker’s vendor) nor an innocent purchaser from her. She was no purchaser at all. One who has never been owner can not confer ownership upon another. Mrs. Barkdull never had any right of ownership, and could convey none to Harriet Herbert. The latter, besides, was herself, through her agent H. H. Herbert, perfectly cognizant of all the facts. She was therefore not even a possessor in good faith. Even if she were, good faith in a purchaser can not make a good title out of a bad one. The only effect of good faith is to shorten the period for acquiring title by prescription, and to entitle the party to fruits, and certain rights and indemnities for improvements.

The proposition of defendant’s counsel that Mrs. Logan’s mortgage could not attach to the land until Mrs. Eluker’s title was recorded is utterly inadmissible. It attached the moment it was placed of record, because Mrs. Eluker was then the owner — and it was effective and good against every body that Mrs. Fluker’s title was good against. We have seen that her title was, without registry, good against the world, except creditors of and bona fide purchasers from her vendor.

This view renders it unnecessary to decide the point raised by defendant, as to the effect of Mrs. Eluker’s deed not being stamped, before its registry, since in our view the deed was good against the defendants Barkdull and Herbert without registry. But we may as well say now that we think the objection without force or merit.

The objection is made in the brief, but not in the pleadings (unless the exception “ no cause of action” be its equivalent), that this is the hypothecary action, and that there is neither allegation nor proof of the demands and notices required by law in such cases.

We have stated the prayer of the petition. We do not think it is the hypothecary action. The petition does not ask for the seizure and sale of the property, but that the sale from Barkdull to Herbert be declared void, that the property, quoad the plaintiffs rights, be decreed to belong to Mrs. Fluker, and that it be decreed subject to plaintiffs judgment. Creditors are authorized by law to exercise the rights and actions of their debtors in cases like this. 2 An. 782. They are not barred or estopped from so doing by the acts or pleadings of their debtors, only when and to the extent that in such acts or pleadings the debtor may be considered as representing them. Now the debtor in so far as relates to creditors holding antecedent mortgages and their recourse upon the mortgaged property does not represent them, and judgment against such debtor is not res adjudícala as to such creditors; as it would be against mere ordinary creditors in the absence of fraud by the debtor. See Marcadé, v. 5, pp. 181-5; also, 9 L. 298; 4 R. 26; 3 A. 230; 6 A. 462; 12 A. 873.

The hypothecary action proceeds upon the hypothesis that there has been a real alienation of the property by the mortgage debtor. This suit proceeds upon the contrary hypothesis, and as the decrees of this court holding Mrs. Fluker to be estopped from claiming title are not res adjudicata against plaintiff, plaintiff may show that those decrees are unfounded, unjust, and untrue. Mrs. Logan could, it is true, have acquiesced in the validity of defendant’s title, originating in the adjudged divestiture of Mrs. Fluker in 1868, and still have maintained the hypothecary action, as that title originated subsequent to the attaching of her mortgage. But she has also the right to have this adverse title, which is set up as a hindrance to the exercise of her right, adjudged null and void as to her, to the end that she may seize and sell it as the property of her debtor.

Nor must plaintiff’s action be confounded with the revocatory action, technically so called. That action has for its object the annulment of acts and contracts made by the debtor in fraud of the rights of creditors. Plaintiff in this case does not pretend any such state of facts. On the contrary, she asserts that her debtor never did, in truth and fact, sell or dispose of this property; that she was rather the victim than the perpetrator of illegal and wrong doing. We have seen that while Mrs. Fluker’s mouth is judicially sealed, and while she is not permitted to gainsay Harriet Herbert’s title, the plaintiff is at liberty to dispute it, and to show that it never had a legal existence. We think the plaintiff has made out her case, and that as to her defendant’s title is null and void, and that plaintiff has the right to proceed against said property as that of her judgment debtor, for the satisfaction of her mortgage rights. Under the views we take the prescription of one and five years pleaded by Mrs. Barkdull against plaintiff is inapplicable.

The defendant has prayed for judgment over against her warrantor for the amount and price paid, $500, and for the improvements put upon the place. The evidence as to improvements is not sufficiently definite for us to pass intelligently upon their value. We will reserve defendant’s rights in that regard against her warrantor, who, she alleges, is liable to her therefor.

It is therefore ordered, adjudged, and decreed by the court that the judgment appealed from be avoided and reversed, and it is now ordered, adjudged, and decreed that there be judgment in favor of Mrs. S. C. E. Logan hnd against the defendants, declaring the title of Harriet Herbert, derived from Mrs. L. P. Barkdull, of date seventh March, 1868, to the lands described in plaintiff’s petition to be null and void as regards plaintiff. That the plaintiff, Mrs. Logan, do proceed to the execution of the judgment in the case of “ICernan & McYea vs. Mrs. J. A. Pinker,” No. —, on the docket of the district court for East Feliciana, to all Intents and purposes as though said Mrs. Fluker’s estate was still owner and possessor of the said land, and that the same be and is declared subject to plaintiff’s judicial mortgage resulting from the registry of said judgment on twenty-third February, 1867. It is further ordered that plaintiff recover of the defendants the costs of both courts. It is further ordered, adjudged, and decreed that the defendant, Harriet Herbert, do recover of her warrantor, Mrs. L. P. Barkdull, the sum of five hundred dollars as the price of said land, with five per cent interest from judicial demand till paid, and all costs of this suit; and that said Herbert’s right to sue said warrantor for damages and improvements be and the same is reserved to her.


source: Caselaw Access Project

author: Egan, J.

license: Public Domain

text:
    No. 7002.
    Isaac D. Brow vs. Joseph Bessou, Administrator, etc.
    "Whore an hoir who opposes the account filed by his' former tutor, admits that he had received a certain sum of money from his tutor, but alleges that it was derived from a source different from the one set forth by the tutor, he must prove his allegation, or otherwise his admission will dispense the tutor from any other proof.
    A judgment can not allow interest that the plaintiff has not claimed.
    The legal mortgage of minors on the property of their tutors, is good, as against the tutors, their heirs, or partners in community, without being registered.
    A tutor can not bo held for more than he collected of a certain debt due the minor, • when it is not shown that the debt was worth more than he collected.

      ^PPEAL from the Parish Court of Iberville. Crowell, J.

      Augustus and E. B. Talbot for plaintiff and appellee.

      Barreno & Fox>e for defendant and appellant.
   The opinion of the court was delivered by

Egan, J.

The plaintiff, alleging that James A. Yentress, who had been his tutor, had died without rendering an account of his tutorship, though largely indebted to him in such capacity, sued the administrator of his succession to compel him to render an account of the dealings of his decedent in the tutorship, the plaintiff having become of age. An account was filed accordingly by the defendant in his capacity of administrator, which after contestation and opposition was made the basis of the judgment of the court below after certain amendments and corrections. From this judgment the administrator has appealed.

The first error complained of is the striking out and disallowing the item of nine hundred dollars, charged under the head of passive mass, chapter two of the account, as having been paid by the tutor to the minor. The opposition to 'this item admits the receipt of the amount, but alleges that it was paid to the plaintiff on account of his share or interest in the crops of .the Manchac plantation. If this were so, under their pleadings it was incumbent on the plaintiff to have shown it. He has not done so, and the admission that he received the money sustains that item of the account and dispensed with other proof. 4 R. 145; 18 L. 11; 14 An. 861; 27 An. 537; 26 An. 630. There is, however, evidence outside of the admission of the plaintiff to support this item. There was offered in evidence a draft for §800, given by the deceased to the plaintiff on his commission merchant about the date of this charge, and which figures in and is charged nowhere else in the account.

The witness Barrow swears that during the life of Yentress the latter had this item put down on a memorandum account against his ward precisely as it is here charged, and that he used that memorandum, which was since lost, in making up this account. It is shown that Yen-tress was a very careful, accurate man of business. He is now dead, and no one but the plaintiff is left to testify, and he has failed to establish the grounds of his opposition, even by his own evidence. The judgment must be corrected in this particular.

The second error assigned is the allowance of interest on the judgment from dates not definitely fixed by the proof, and from dates anterior to that asked for by the plaintiff, who prayed that interest might be allowed him from the date of the death of Yentress, and can not therefore recover more. See petition, record p. 2.

Article 552 of the Code of Practice provides that “ interest shall not be allowed by the judgment unless the same have been expressly claimed, and then only in oases in which the law permits sued interest to be stipulated.” One can not have judgment for more than he claims. 10 An. 485. The judgment must be corrected in this respect also.

The third error alleged is the allowance of the legal mortgage o£ the minor on the property of his tutor from the date of his appointment, March 16,1865, because of the absence of proof' of registry prior to the first of January, 1870, to preserve the same.

This position is correct so far as the interests of creditors of Yen-tress are concerned or may be affected. There is, however, as argued by plaintiff’s counsel, no evidence of the existence or' amount of debts against the succession, nor is it pretended that it is insolvent. The mortgage was certainly good without registry as against Yentress himself, and is equally good against his heirs or partner in community. The judgment should be modified in this respect, so that the mortgage may not affect the rights of creditors.

The plaintiff asks us to amend the judgment by allowing him the amount of a note, of James Ward for §2000, and by reducing the amount allowed to the attorneys who filed the account. We think the account allowed on this latter item, §250, was reasonable and properly allowed. As to the Ward note, the evidence in regard to that is that Ward lived in Mississippi, where he was sued by Yentress and judgment recovered; that execution issued, and the property seized was bought in for Yen-tress at §250. There is nothing to show that it was worth more or that more was realized from it. And it is shown that Ward became a bankrupt, and that ended the collections on the judgment. The accountant has charged the estate in favor of the plaintiff with §833 73 on account of his interest in this note, which is more than would appear to be due from the evidence. It is probable that the property bought for §250 may have been sold for more, and that Yentress therefore very honestly charged himself with the excess, though of this there is no evidence. We see no reason to disturb the judgment as to this item, of which as charged the plaintiff can not complain.

It is therefore ordered, adjudged, and decreed that the judgment of the court below be so amended as to allow the item of nine hundred dollars in the account as having been paid to the plaintiff, charged under the head of passive mass, chapter second of the account as stated; that it be also amended so as to allow interest at five per cent per annum upon the amounts decreed in favor of the plaintiff from the date of the death of James A. Yentress, to wit, the--day of--, 18 — , instead of from the dates allowed and fixed in the judgment, and that it be also amended, so that the legal mortgage of the plaintiff against the property of his deceased tutor shall not have effect or operate to the prejudice of creditors of the decedent, James A. Yentress, or of the succession; and it is further ordered and adjudged that as thus amended the judgment appealed from be affirmed, and that plaintiff and appellee pay the costs of appeal; and as the record before us does not disclose the date of the death of Yentress, the case is remanded to the court below to receive evidence on that point only.


author: Marr, J.

text:
    No. 7004
    Ben Gerson vs. G. W. & G. M. Hamilton.
    Where the language of a guaranty addressed to a factor is, “ I am willing to go his security for the amount of twenty-five hundred dollars,” it is not what is termed a continuing guaranty. It only embraces the first S2500 of money advanced, or goods furnished to the person in whose favor the guaranty is given. The factor thus guaranteed is legally bound to apply to the guaranteed debt, and for the discharge of the guarantor, the first payments received by him from the person in whose favor the guaranty was given.
    APPEAL from the Fifth Judicial District Court, parish of AYest Baton Rouge. McVea, J.

      Barrow & Pope for plaintiff and appellant.

      Favrot & Lctmon for defendant and appellee.
   The opinion of the court was delivered by

Marr, J.

Plaintiff seeks to recover of G. AY. Hamilton, as drawer, and G. M. Hamilton, as guarantor, the amount of a draft on him to the order of Meyer AYeil, for $876 53, dated tenth February, 1873, at ninety days, which, he alleges, he paid at maturity.

The petition charges that G. M. Hamilton, in a letter addressed to plaintiff, of date October 15,1872, guaranteed and bound himself as security for the payment of the said draft, and all advances made by-him to G. AY. Hamilton to the amount of $2500 ; and that the draft sued on formed part of the advances mentioned and contemplated in the letter of guarantee.

G. AY. Hamilton admits his signature to the draft, but denies that plaintiff is the owner for a valuable consideration, or that he is in any manner legally bound to pay the same to plaintiff, or any one else, because it was never protested for non-acceptance or non-payment.

G. M. Hamilton admits his signature to the letter of guarantee; wherein be made himself responsible to plaintiff for goods-and merchandise to be sold to his son by plaintiff to the amount of $2500.-

He also pleads settlement' by him and payment of balance due by his son to Gerson, on March 21, 1873; and settlement on March 17,1871, ■of balance due by Mm to Gerson, on his own account, except $10 11, which he tenders.

The letter of guarantee is as follows :

“West Baton Rouge, Oct. 15, 1872.
■“Ben Geeson, Esq.—
“Dear Sir:
As you have promised to advance my son George, I am willing to ■go his security for the amount of twenty-five hundred dollars.”

On the nineteenth of October, 1872, an account current was opened by Gerson with G. W. Hamilton, which amounted, on the debit side, up to February 1,1873, to $6199 40, consisting of time drafts accepted, sight drafts paid, merchandise, and a small amount in cash, closing with bal■■ance in favor of Gerson, $1924 65. On the seventeenth of March this ¡balance had increased to $2076 05, to which interest up to January 1, 1874, was added, $135 16, making total $2211 21. G. W. Hamilton sold .•goods for $1000 to Baum, which Baum agreed to pay to Gerson on the ■first of January, 1874. Gerson accepted this in deduction of the amourt ■ due by G. W. Hamilton, and for the remainder, $1211 21, G. M. Hamil'ton drew on Gerson to the order of G. W. Hamilton, payable January 1-4,1874. This draft was charged to G. M. Hamilton on the account of 'Gerson; and the balance shown bjr that account up to March 17,1874, ■was paid in part, say $784, leaving balance unpaid $10 11.

On October 27,1872, G. W. Hamilton purchased a quantity of goods ■ of Meyer Weil, and he made other purchases, at different dates, up to February, 1874, amounting to $876 53. It was in settlement of this account that the draft sued on was given, February 10,1873.

G M. Hamilton denies liability on this draft, on the specific grounds:

1: That the amount was not claimed by Gerson as due by him •■when the final settlement of liability under the guarantee was made, and 'the balance $1211 21 paid;

2 : That the amount guaranteed was reached before the draft was •drawn;

3: That G W. Hamilton paid to Gerson for indebtedness incurred since the subscription of the letter of guarantee, October 15,1872, an •amount far in excess of $2500.

The testimony proves the truth of all these grounds ; and we think they are a complete bar to plaintiff’s action against G M. Hamilton.

The counsel for plaintiff contend that the letter of October 15 was a continuing guarantee; and they rely on Williams v. Reynolds, 11 La. 230, and Menard v. Seudder, 7 An. 386. In the first of these cases Reynolds wrote to Williams, guaranteeing his endorsement for Reynolds & Ayars, to the extent of $5000. A month later, in November, 1832, he wrote again to Williams, saying: “I intend this as a standing accommodation to them, (Reynolds & Ayars); and I now offer you a further guaranty for your endorsement to the extent'of $5000, on bills of exchange they may have occasion to draw, on account of shipments they may make from time to time ; these guarantees to continue ancl he in full for'ce until the first day of January, 1834.”

Of course, this was a continuing guarantee; and defendant was held liable to Williams for his endorsement for Reynolds & Ayars, for $5000.

In the other case, the guarantee was in these words : I do recommend my friend, Mr. J. B. Soudder, of the parish of East Baton Rouge, a planter, and any funds that he may raise on acceptances, in case he does not pay, I feel bound to pay.” This also was held to be a continuing guarantee; and McCalop, the guarantor, was held liable for advances made to Scudder from the note, December, 1849, hp to the death of McCalop, in July, 1850, it not having been otherwise revoked.

There is no analogy between these cases and the present case. Hamilton, the father, limited his guarantee to the sum of $2500. Within less than a month, on the first of November, that limit had been exceeded by a few dollars ; and the account continued until the total debits were $6199 40, on the first February, and the total credits to same date, $4274 75.

We incline to the opinion that G. M. Hamilton was notlegally bound to pay the $1211 21, under his letter. Gerson had the right to look to him as security for the advances made by him, on the faith of the letter, up to $2500 ; and he was bound legally, ex ceguo et bono to apply to the debt, and for the discharge of the guarantor, the first payments received by him from G. W. Hamilton. The father must be presumed to have had some knowledge of his son’s means and resources; and to have given the guarantee for the limited sum of $2500, because he had confidence in his son’s ability to make good advances to that amount.

The draft sued on has no mark or indication that Gerson accepted it; and Pelant, one of the witnesses, says it is to his knowledge that Ger-son refused to pay it. It is remarkable that the draft nowhere figures in the accounts of Gerson. He and Weil testify that Gerson introduced G. W. Hamilton to Weil, and told Weil that he would be responsible for Hamilton’s purchases. Weil sold goods to Hamilton; and they were charged to Hamilton; and it is strange, if Gerson was bound as security for Hamilton, that the draft was not accepted by him. He and Weil both say that Gerson paid the amount; but they do not say when. On the sixth of February, 1874, Gerson wrote to G. M. Hamilton, saying that he had proceeds of one bale cotton shipped by G. W. Hamilton, which “ stands to credit his account against his draft drawn on me in favor of Meyer Weil, which I was in honor bound to pay. I introduced him to Meyer Weil, and became at once responsible for one half he purchased. * * * * This draft stands open against him with a credit of one bale cotton.”

Whatever may have been the obligations assumed by Gerson to Weil, there is nothing to show any corresponding obligation on the part of G. M. Hamilton. The account of Weil was not guaranteed by him. He intended to bind himself as security to Gerson; and he chose to limit ¿is liability to $2500. \\ hen that amount was reached on the debit side of the account of Gerson, and a corresponding amount on the credit side, the liability under the letter was at an end ; and G. M. Hamilton was discharged.

G. W. Hamilton is bound for the debt liquidated by the draft. The original consideration was fully proven, not denied; and the liability was neither novated nor paid by the draft, which Gerson did not accept, and which Hamilton had no reason to suppose Gerson would either accept or pay for his accommodation. It is immaterial to inquire whether Gerson, paid the draft, or whether Weil placed it in his hands for collection for his account and benefit. The District Judge correctly gave G. W. Hamilton credit for proceeds of the bale of cotton ; and rejected the demand against G. M. Hamilton.

The judgment appealed from is therefore affirmed with costs.


author: Spencer, J.

text:
    No. 7070.
    Crescent City Live Stock Landing and Slaughter-House Company vs. John Larrieux. The Same vs. John Gisch et al.
    On the trial of motions to dissolve injunctions not issued against money judgments, damages are not to be allowed. The defendants in such injunctions are left to their recourse on the bonds.
    A reeonventional demand for damages can not bo separately tried, and the judgment rendered on such a demand can not be separately appealed from. It must be tried and appealed with the main suit.
    ^PPEAL from the Fifth District Court, parish of Orleans. Rogers}

      Robert Mott for plaintiffs and appellees.

      JS. R. Washington for defendants and appellants.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff in these two suits (consolidated in this court by consent) sets out its rights and privileges, and enumerates the fines and forfeitures consequent upon their violation. It then charges, in the first named case, that John Larrieux, for the reasons stated, owes it $1509 30, for which judgment is asked. And, coupled with this demand, an injunction was asked, and obtained,'restraining him from doing certain acts alleged to be in violation of its exclusive privileges. In second named suit the allegations are similar, with prayer for a judgment for $750, and injunction for like purpose.

In both eases the defendants filed motions to set aside the injunctions, on the ground that similar injunctions were then pending between the same parties in the third district court, and that this proceeding in the fifth district court was in violation of act 86 of 1870, regulating jurisdiction in such cases. Larrieux prayed in his motion for $250 special damages against plaintiff and surety, on the injunction bond, and “ legal damages ” not stated. Gisch & Kernel’ prayed in their motion to dissolve for $250 special damages, and $600 legal damages against plaintiff and its surety.

These motions were tried, and sustained “in so far as to dissolve the injunction herein issued, with costs.”

The defendants appealed, and claim that the court should have ■ awarded them damages, on sustaining their motions and dissolving the injunctions, of which damages they claim to have made proof.

We think the court did not orr, as it is well settled that on trial of motions to dissolve injunctions not issued against money judgments, damages are not to be allowed. The sureties are not parties in such cases. The party is left to his recourse on the bond. 3 A. 476, and cases there cited; 28 A. 859; 29 A. 630 — 634. The dissolution of the injunctions in these cases did not terminate the suits. Plaintiff’s demands to recover $1509 30 in the one case, and $750 in the other, were not dismissed, and were still pending. Defendants’ demands for damages were reconventional demands, to be tried, if permissible or not objected to, with the principal demand. The general rule certainly is that demands in compensation and reconvention can not be tried separately from the suits in which they are pleaded. If defendants are embraced within any exception to this rule, their counsel has not directed our attention to the law establishing it, and it is unknown to us.

It is therefore ordered and decreed that the judgment appoaled from be affirmed, with costs to be paid by appellants.

On Application eor Rehearin&.

This record contains two suits; one against John Larrieux, and one against John Gisch & W. O. Kerner.

If the papers, before being copied- ihto this transcript, had been shaken up in a bag, and then drawn out by a blind man, and copied in the order drawn, confusion could not have been worse confounded than this transcript presents.

It seems that there was, lurking amid 'this confusion, a motion to dismiss, and that the cases were not submitted, on the merits. We overlooked the motion and decided the cases. The rehearing is granted-

Ok Rehearing.

The plaintiff moved to dismiss the appeals, because the judgments-were not such as justified appeal, and worked no irreparable injury; and “ because the transcript is such a confused mass that neither the court nor the counsel for appellee can ascertain what the case before the court is.”

As we have already, by dint of perseverance and hard wovlz,'ferreted out the case before us, we pass this last ground sub silentio.

As stated in our previous opinion, the plaintiff sued out injunctions against the defendants, butchers, prohibiting their violating its alleged chartered privileges. It also demanded a money judgment against Larrieux for $1509 30, and one against Gisch & Kernel’ for $750, for alleged infractions of its privileges, etc.

In both cases the defendants filed motions to dissolve the injunctions, on the ground that similar injunctions were then pending between the same parties in the third district court, and that the injunctions in the fifth district court were in violation of act 86 of 1870, regulating jurisdiction in such cases.

Larrieux, in his motion to dissolve, prayed for $250 special damages against plaintiff and surety on the injunction bond, and for “legal damages,” in an amount not stated. Gisch & Kernel’, in their motion to dissolve, asked for $250 special damages, and $600 “legal damages” against plaintiff and its surety. Those motions were tried and sustained, “ in so far as to dissolve the injunctions herein issued, with costs.” The defendants appeal, and allege that the court should have awarded them damages, which they claim to have proved.

The motion to dismiss these appeals must prevail. It is well settled that, on trial of motions to dissolve injunctions not issued against money judgments, damages are not to be allowed, and that the sureties on the bonds in such cases are not parties to the suits. The party is left to his recourse on the bond. 3 A. 476, and cases cited; 28 A. 859; 29 A. 630—634.

But, in this case, the dissolution of the injunctions did not even terminate the suits. The cases are still pending on plaintiff’s claim for $1509 30 against Larrieux, and'for $750 against Gisch & Kerner.

Perhaps defendants might, in their answers, set up their damages byway of reconvention; but, if that be permissible, the reconventional could only be tried with principal, demand.

The district court had no legal right to consider the demand for damages, on the motion to dissolve the injunctions properly refused to-pass upon it. Its judgments concluded no one on the question of damages, and worked no irreparable injury to appellants, who, as we have-seen, may assert their rights at proper time, and in proper form. The-cases in 12 A. 767 and 755 have no application here. Those were eases-tried on the merits, and the damages claimed not noticed in the decrees. Such decree was, of course, res adjudícala to a subsequent suit.

If the district court could not legally entertain defendants’ motion for damages this court can not, and an appeal to it is, therefore, a vain thing, and not maintainable.

The motion to dismiss the appeals is sustained at appellants’ costs.


text:
    No. 6966.
    Rose L. Goux et al. vs. Joseph Moucla.
    Whore there is an administration of a succession, the estate does not legally pass-to a tutor, until the administrator renders his final account.
    When the same person is at the same time administrator, and also tutor of a part pf the heirs, his possession of the estate must bo held to be as administrator. The bond of an administrator inures to the benefit of the heirs, as well as of the-creditors o£ the deceased.
    APPEAL from the Seventh Judicial District Court, parish of Avoyelles. Toist, J.

      JS. J. Joffrion, L. J. JDucotá, and H. C. Myers for plaintiffs and appellees.

      A. & W. VoorMes for defendant and appellant.
   The opinion of the court was delivered by ■

Spencer, J.

Claudine Berge died in 1857. She was three times married, leaving one child by her first husband, Penchene, and three by her-second husband, Goux. Her third husband, Benjamin P. Delavallade,, survived her. At her death the first named child, a daughter, was a, major and married; the other three minors. The husband, Delavallade,, was appointed on seventh December, 1857, dative tutor without bond of the three minors Goux; and on tenth December, 1857, was appointed and qualified as administrator of his deceased wife’s estate, giving bond1 as such with Joseph Moucla and Laurent Normand as sureties.

In 1869 Benj. P. Delavallade filed what purports to be final accounts as administrator, one of the community existing between him and his deceased wife, and one of the separate estate of the wife. These accounts were opposed by Rose L. Goux, one of the heirs, and her husband. The pleading, proceedings, and evidence in these oppositions, were not offered in evidence, only the accounts and the judgment the oppositions. The judgment is elaborate and prepared with precision and intelligence, and was, we must presume, rendered on proper issues and with proper parties. It decrees against the accountant on the account of the “ community” a balance o£ §1507 30, one half of which he is adjudged to pay to the heirs of Claudine Berge, say $753 65, and on the account of “ separate estate” of the wife, it decrees a balance against him in favor of said heirs of.................................§2176 39

Making- total............................................§2930 04 and costs. This judgment was rendered fifth June, 1871.

In 1875 execution issued against Delavallade on this judgment, and his property was seized and sold, realizing net §1126 75. It was bought by plaintiffs in the present suit and bid paid by credit on the writ.

The present suit is brought by Bose L. and Louis Paul C-oux (the third child having died intestate and in minority), to recover of the defendant Moucla, as surety of the administrator, the balance of said judgment. Ernestine Peuchenc, child by the first marriage, intervened and claimed to be owner of one fourth of her mother’s estate) and one-sixth of her deceased half sister’s share therein, and asking to I) ave the plaintiffs charged with the property of the administrator bought in by them.

The defendant answered by general denial, but admitting that “said Delavallade was duly appointed and qualified as administrator of the succession of Claudine Berge on tenth December, 1857,-and that he and Normand signed the bond as sureties, etc.,” but denies liability, since “ said Delavallade as administrator aforesaid rendered a final account of his administration of said succession on the fifth of June, 1871, at which time the responsibility of said administrator as well as those of his sureties was duly shown and ceased as to said plaintiffs particularly, for whom said Delavallade was dative tutor.” That the bond “ was given exclusively for the benefit of the creditors of said estate,” and when they were paid the bond “ was null.” He pleads in this court the prescription of four, five, and ton years.

There is no attempt on the part of the surety to show that the judgment against Delavallade was excessive, but that the amount, due to the, plaintiffs is due by him as tutor, and that the suretyship does not extend to the acts of the tutorship. Delavallade seems to have acted, during his administration from 1857 to 1871. in both capacities, but it must not be forgotten that a large- portion of this estate belonged to the intervenor, a child of the deceased, and never under his tutorship. There were several thousands of dollars of debts. In fine, it is proved, and is besides admitted by the defendant, that Delavallade rendered his -count as administrator; that he was duly appointed and qualified as such. Under these admissions, it does not lie in the mouth oi defendant to deny that letters of administration were issued to him, or that he administered ns administrator.

When there is an administration, the estate does not legally pass to a tutor until the administrator renders liis final account. Where the same person is administrator, and also tutor of a part of the heirs, his possession of the estate must be held to be as administrator. Of one of the heirs he was, in this case, never tutor, and of one of them, Rose L. Goux, and perhaps of the other, his tutorship had ended before his account as administrator was rendered. The bond of an administrator inures to the benefit of the heirs as well as of the creditors of the deceased.

It is suggested that there is no proof that the remedies against the principal have been exhausted. No such defense was made in the pleadings, and no proof offered to show that Delavallade (wlio is now dead) had other property. The return of execution against him unsatisfied creates a contrary presumption.

Wo see no error in the judgment as against the defendant, and think the plea of prescription not well taken.

The judgment as between plaintiffs and intervener can not be amended, as the interveuor has not appealed or sought any modification as to her.

It ¡s therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed with costs.


text:
    No. 6985.
    Lehman, Abraham & Co. vs. Mrs. Yette Levy and Husband.
    Tiio suit o! ¡i orodiinr to annul a conveyance of property by his debtor, for any ground of fraud (except the one of giving an unjust preference by an insolvent debtor) is only prescribed in one year from the time Uie creditor has obtained judgment against the debtor.
    Where. ¡1 iTdiou In payment by a husband 1,0 bis wife, is altae.kod, aftor tho wife’s death, as fraudulent, the husband is a. competent witness for the wife’s suceession. to prove the amount, and verily of his wife’s claims against him.
    The validity of iillation in payment made by the husband to tlie wife, to satisfy a jndgmenl obtain'd by U10 wife against him. will not bo impaired by the fact that the judgment was a mere consent one, resting on no evidence, when it is shown aUitn-h> dial the will's claims, on which the judgment purported to rest, arc legal, and real: such r-u- example, as claims for her dotal, or paraphernal effects, alienated by the husband.
    Neither the pecuniary embarrassment, nor tho actual insolvency of tho husband, is any obstacle to a transfer by the husband to the wife, in good faith, for the replacing of her money, or property, used; or alienated by him.

      A judgment of separation of property between husband and wife which is not executed, is utterly null and void.
    The failure of a wife to execute a judgment of separation of property, which she has obtained, will not impair or prejudice any claim she may have against her husband.
    It will be assumed that the property transferred by the husband to tho wife to replace her dotal or paraphernal effects, is fairly appraised in the act of transfer, until the contrary is shown by the party attacking the transfer.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana. Brame, special judge.

      Wedge & Moore for plaintiffs and appellants.

      W F. Iiernan and 21 B. Lyons for defendants’ and appellees.
   The opinion of the court was delivered by

Marr, J.

In June, 1875, Lehman, Abraham & Co. recovered judgment against Abraham Levy, on which they caused execution to issue, under which the sheriff seized, and was about to sell certain real property. Mrs. Yette Oppenheimer, wife of Levy, enjoined the sale, claiming to be the owner, in virtue of a dation en paiement, made to her by her husband in February, 1875. Thereupon Lehman, Abraham & Co. brought this suit against the husband and wife to subject the property.

The petition charges, substantially, that the judgment in favor of Mrs. Levy against her husband, on account of which the dation en paiement was made, was “fraudulent, simulated, null, and void; .enteredinto collusively between Levy and his wife to shield his property from the pursuit of his creditors, and to defraud them of their just rights.”

Petitioners deny that Mrs. Levy had any paraphernal or other rights or cláims against her husband, and they allege, that, “if she ever had any such claims the same were long since paid and satisfied by judgments obtained and executed against her husband, in tho District Court of West Feliciana parish, and in number 319, Sixth District Court, for the parish of Orleans.”

Mrs. Levy died shortly after this suit -was brought; and the husband, Abraham Levy, made party in his capacity as executor, answered by general denial, and the plea of prescription of one year. The judgment of the District Court was against plaintiffs, rejecting their demand, and dismissing their suit; and they appealed.

Yette Oppenheimer was the widow of Israel Adler, who died in 1850, or 1851, leaving two minor children, issue of the marriage. At probate sale she purchased his interest in the commercial partnership of which he was a member, at the appi’aised value $8935 39, of which one half belonged to her as widow in community, and tho other half to the two. children. She and A. Levy, one of the partners of her husband, continued the business until January, 1853, when he purchased her interest for $12,000, represented by two notes for $6000 each.

In January, 1853, she married Abraham Levy, who was engaged in mercantile business, in partnership with one Bosch. Levy purchased the interest of B^sch; and, at the request of Mrs. Levy, A. Levy anticipated the maturity of the two notes, and gave a sight draft on Oakey & Hawkins for $11,880, the amount less discount. The money, it seems, went into the hands of Abraham Levy, and was used in paying'Bosch.

In March, 1856, Mrs. Levy brought suit, in the District Court of West Feliciana, against her husband, for a dissolution of the community and separation of property, on account of his alleged pecuniary embarrassment; and in April, 1856, she recovered judgment, decreeing the dissolution of the community, and the separation of property; giving her the administration of her paraphernal property; and placing the tutorship of the minors under her separate administration and control. There was also judgment in her favor, in her own right, for $6000, with interest, from the date of the judgment, and in her capacity as tutrix for $6426, with interest.

Execution issued on this judgment, on the twenty-ninth April; and on the twenty-fourth May it was returned by order of plaintiff’s attorneys. No subsequent proceedings seem to have been taken in the case.

In February, 1869, Mrs. Levy brought suit in the Sixth District Court for the parish of Orleans, against her husband, whom she described in her petition as being “of the city of New Orleans.” She alleged his indebtedness to her in the sum of $6900, for money received by him belonging to her, as charged in her first suit; and in the additional sums ’ of $800, for her half of proceeds of sale of real estate received by him in 1867, and $700 for money received by him for the sale of her furniture. She alleged also his pecuniary embarrassment; and that she desired to conduct mercantile business on her own account, and in safety from the pursuit of his creditors: and she prayed for separation’in estate, that “the community existing between them be dissolved, and that she be authorized to act as a public merchant and transact her owm affairs.” She also prayed for judgment against her husband for seven thousand five hundred dollars, with interest from judicial demand.

Levy did not appear; and default was taken against him. It was proven that he was insolvent and under protest, and there was final judgment against him, and in favor of his wife, according to the prayer of the petition. Execution was issued on this judgment, which was stayed by order of plaintiff’s attorneys; and was returned when it had expired. Nothing more was done in this ease, except that the judgment was recorded in West Feliciana parish, in the Book of General Mortgages,'on the thirteenth October, 1873. •

Levy and his wife returned to West Feliciana, it does not appear at what time; but he purchased real property there in 1871; and it seems that his mercantile business in Feliciana was continued while lie was at New Orleans, in 1869. On the ninth December, 1874, Mrs. Levy filed an affidavit, which was registered on that day, and recorded in the Book of General Mortgages on thirty-first December, in which she stated that she had brought into marriage paraphernal property, the sum of §6000, being the one half of the amount paid by A. Levy for the purchase of partnership property: that in 1869, her husband received §800, from the sale of certain real estate in the town of Clinton: that the aggregate of his indebtedness to her was §6800; and that she made this affidavit for the purpose of preserving her legal mortgage on the real estate of her husband.

On the eleventh December, 1874, Mrs. Levy brought suit against her husband, in the District Court of West Feliciana, alleging his pecuniary embarrassment, and his indebtedness to her. That she had paid her children, out of the $12,000 originally due her by her husband, their half of the price of the assets of the succession of their father, Israel Adler, $4467 69, leaving balance due her by Levy, on that account, $7532 30; in addition to which he owed her $900, her half of the price of real estate belonging to her and her children, sold in January, 1867, received by him, making total indebtedness $8432 30. She also stated that her mortgage for the sum of $6800 was duly recorded against her husband on the eighth December, 1874; and she prayed for a separation of property, and the dissolution of the community: that she have the administration of her own affairs; and that she be permitted to be a public merchant. She also prayed for judgment against her husband for $8432 30; and that her legal mortgage be recognized, to date from December 8,1874.

Levy answered, on the same day, by general denial; and final judgment was rendered and signed the next day, twelfth December, 1874, in accordance with the prayer of the petition.

Execution issued on this judgment, which was recorded in the Book of General Mortgages on the sixth January, 1875; and the sheriff seized some lots, with the buildings and improvements on them, on the twenty-fourth February, the return day of the wiit. The seizure was preserved by the sheriff by retaining a copy, and the writ was returned. On the same day, February 24,1875, by notarial act, Levy sold and conveyed to bis wife all his real property, at prices agreed upon between them aggregating $5500, and all his household and kitchen furniture, at prices aggregating $600, making total of $6100, to be credited on her judgment of December 12,1874, and which she acknowledged receipt of in part payment and satisfaction of that judgment: and on the twenty-fifth February he sold and conveyed to her, by act before the same notary, his horse, buggy, and harness, and two mules, for the aggregate sum of $340, which she acknowledged receipt of as an additional credit on her judgment.

We do not think the action brought by plaintiffs in this case, to subject the property, was prescribed. Article 1987, of the R. O. C., requires that suit to set aside a-contract, on the' single ground of the giving' of an unjust preference by an insolvent debtor, shall be 'brought within one year after the making of the contract; while article 1994 requires suit to set aside fraudulent conveyances on other grounds to be brought within one year after the creditor has obtained judgment against the debtor. The judgment in favor of Lehman, Abraham & Co. against Levy was rendered and signed on the fifth June, 1875; and this suit was brought on the tenth, and citation served on the seventeenth "May, 1876; See Petit v. Creditors, 3 La. 29; Tennessy v. G-onsoulin, 11 La. 424.

Oa the trial of this case Abraham Levy was offered as a witness, aud his testimony was objected to, on the ground that the husband is incompetent to testify on behalf of his wife’s interest; and that his testimony is inadmissible to establish the amount and verity of his wife’s claims against him.

Article 2281, R. C. C., declares that “the husband can not be a witness for or against his wife, nor the wife for or against her husband.” The wife died, and the husband was made party as her executor; and ho appeared and answered in that capacity. He could not have testified for or against her while she lived; but we do not think the rule of exclusion applies to cases in wnich the husband or the wife, surviving, is called as a witness to testify for or against the succession or the heirs of the deceased spouse.

The testimony of this witness shows that the wife did not enforce her judgment obtained against him in 1856, because he arranged with his creditors: and that she did not execute her judgment obtained in 1869 for the same reason. “ Pecuniary embarrassment ” seems to have been Levy’s normal condition; and whenever his • creditors undertook to press him, he interposed an effectual barrier against their attacks. A suit by his wife for separation of property and dissolution of the community; judgment for her paraphernal rights, with recognition of her legal mortgage from the date of the marriage, and execution in the hands of the sheriff, kept them at bay, and enabled him to arrange with them on his own terms.

If these parties had not been husband and wife, we should not hesitate to say that they had combined and colluded, since 1856, to cheat and defraud his creditors, and to declare all the contracts and judgments between them simulated and void. But the wife, in legal eontemplation, and as the truth is usually, is but the instrument in the hands of her husband when she is a party to his fraudulent devices; and her actual rights can not be prejudiced by conduct'which, in a person, sui juris could not be characterized otherwise than as fraudulent, and void as to creditors.

The record does not show that any testimony was offered in the suit in which the judgment of December 12,1874, was rendered; and it was simply a transaction between the husband and wife, a consent suit and consent judgment. This is not material, since that judgment, if it had been rendered on sufficient proof, would not have concluded the, creditors as to the reality or the amount of the wife’s claims.

The dation en paiement purports to have been made in consideration, and in satisfaction in part of that judgment. The judgment might be without effect as to creditors, it certainly does not conclude them; but the dation en paiement might be valid, because-its validity would not depend on the j udgment, but on the reality of the claims on which the judgment purports to have been rendered.

The R. C. Code, article 2446, specially authorizes the transfer of property, by the husband to the wife, “even though not separated, when it has a legitimate cause, as the replacing of her dotal or other effects alienated.” Rabassa v. Casteen, 5 An. 493.

The embarrassment of the hqsband is the sole ground on which the wife is authorized to demand a separation of property. The greater the embarrassment, the greater the danger to her rights, and the greater the necessity for the separation. Mere pecuniary embarrassment, which may be only temporary, is not so serious as actual insolvency; and neither the one nor the other is any obstacle to a transfer by the husband to the wife, in good faith, for the replacing of her money or property used or alienated by him. See Judice v. Neda, 8 An. 485, which interprets Lefebre v. Montilly, 1 An. 42.

The plaintiffs in this case attacked the dation en paiement on two grounds: 1: that the judgment and transfer under it were simulated, fraudulent, and void: 2: that the claims of the wife, if she ever had any, were paid and satisfied by the two judgments obtained in 1856, and 1869.

Two essentials are requisite for the validity of a dation en paiement by the husband to the wife: 1: That the husband should be really indebted to her: 2: That the fair value of the property given in payment should not exceed the amount actually due to her. It was the business of plaintiffs attacking the contract, to have charged, distinctly, the causes for which they demanded its nullity; and as there is no allegation, and no evidence tending to show, that the property transferred was worth or could have been sold for more than the amount at which it was taken and received by the wife, it must be'assumed that the valuation in the contract was fair.

The failure of the wife to enforce the judgment of 1856, did not pay or satisfy her claims against her husband: It simply made that judgment void; and left the parties in community, with the actual claims of the wife still existing. The judgment of 1869 did not dissolve the community, because it was not executed, but was, in fact abandoned. The community still existed; and the husband was still the debtor of the wife.

The husband had means, perhaps sufficient to have paid the wife in full, at the time the executions were issued in 1856, and 1869; but if his other creditors chose to relieve him of his pressing embarrassments by indulgence and by granting him terms, it would be a cruel law that would compel his wife, under pain of the forfeiture of her claims and rights, to proceed with her execution to sell him out, and thus deprive him of the moans of pursuing his business.

The plaintiffs alleged the payment and satisfaction of the wife’s claims; and they took upon themselves the burden of establishing this by proof. They have failed to offer any proof of payment; and the inquiry is, therefore, narrowed down to the question of the reality of the wife’s claims.

The testimony taken on the trial shows a larger amount of indebtedness than that claimed in the suit of the wife in 1869. The witness testified with respect to the amount originally received by the husband; but the wife in her petition of December 11,1874, admitted payment by her husband of $4467 69, on account of the original debt of $12,000, reducing that debt to $7532 30; and, in addition to this she claimed $900, for her half of property sold in January,' 1867, received by him. In her suit in 1869, she stated that this amount was $800; and she fixed it at that in her affidavit of December 8,1874. There is in the record proof that he received, and gave his receipt as tutor, for the proceeds of that sale, paid to him by the sheriff, $600, cash, and two notes of McYea and Kernan for $600 each, at one and two years. It is safe to assume that the statement that he received $800, on account of his wife’s half, is not ■exaggerated; but it is not necessary for the purposes of this case to fix the exact amount. It suffices to show the actual indebtedness of the husband in an amount equal to the value of the property given to her in payment; and that was shown by the proofs in this case, and also in 1856, and 1869.

The value of the property, as accepted by Mrs. Levy, and credited on her judgment, was .$6440: or $360 less than the amount due her, fixing it at $6800.

The dation en pcdement did no more injury to the creditors than would have been done by the sale of the property by the sheriff. The only difference would have been that the property would probably have sold for less than the $6440; and the additional costs and expenses would have diminished the proceeds to be applied to her debt. There could bo no good reason why the husband might not validly do, by voluntary contract, that which the law would have compelled him to do by judgment and execution. The claims of the wife had privilege and priority over the debt of plaintiffs; and, though the conduct of Levy would authorize and require the closest scrutiny of his dealing with his wife, the rights of her succession and heirs'should not be prejudiced by his frauds actual or intended. ■

The judgment appealed from is therefore affirmed with costs.


text:
    No. 6992.
    Succession of Jacob Hoover et al. vs. Z. York and. E. J. Hoover, Executors. A. G. Ober, Intervenor.
    Tbe parish court hás exclusive jurisdiction oi suits to annul wills and sot aside the probates of the, same.
    The nullity of proceedings for the probate of a will, and of the orders in execution of it must bo sued for in the court which decreed the probate, and made the orders.
    If different causes of action bo alleged in a suit brought in a probate court, of some of which causes the court has jurisdiction, and of some, not, it should take cognizance of the former causes and reject the latter.
    Where a court has once acquired jurisdiction of a suit, that jurisdiction will be maintained. It can not bo impaired by a claim in reeonvontion, or intervention, of which the court has not original jurisdiction.
    A demand In intervention must be before the court, in which the main action lies, and must follow that jurisdiction when it is really incidental and collateral .to the main suit.
    'One whose title to lands (worth over 8500) depends on the validity of a certain will, may intervene in a suit brought in the parish court to annul the will, in order to set up, and vindicate his title, and the intervenor’s title being thus put at issue, the plaintiff may contest it to show that the former had no right to interyene. But no inquiry into the validity or enforcement of mortgage claims on such lands, set up by the plaintiffs, will bo allowed.
    A parish court which is without jurisdiction of a suit brought before it, has no authority to issue an order to transfer the suit to the district court. It has only power to dismiss the suit.
    APPEAL from the Parish Court of Concordia. Hough, J., acting for . parish judge, recused. ’

      George S. Sawyer for plaintiff and appellant.

      O. Mayo for intervonor and appellee.
   The opinion of the court was delivered by

Egan, J.

This peripatetic suit appears to be as vexed and unhappy as those spirits of the ancients which appeared o,n the banks of the' mythical river Styx without the obolus. According to the representations of counsel it was originally instituted in the parish court, removed thence to the district court, twice to the Circuit Court of the United States, and each time remanded to the State court; dismissed on exception from the district court, and again brought up for consideration in the parish court from which it now comes on appeal to us. It was originally instituted by the plaintiffs, claiming to be heirs of Jacob Hoover, deceased, against the defendants, executors and instituted heirs, under a will made by him, in order to set aside and annul the will and the'probate thereof, and to have petitioners declared entitled to' the succession- and property as heirs at law. Ober intervened and joined the defendants in resisting the demands of plaintiffs, alleging that he was interested and had a right to do so by reason of his being the purchaser of valuable real property, the title to which depended upon the maintenance of the validity of the will. The plaintiffs answered the intervention at great length, attacking the title of Ober on various grounds, and asking to be allowed to enforce certain alleged mortgage rights as ag-ainst him.

The parish judge being recused on account of personal interest, the district judge was called to preside in the parish court, whereupon Ober, the intervenor, moved and the court ordered, that so much of the plaintiffs’ answer to the intervention as seeks to set aside the title of Ober to the lands purchased by him under the will of decedent and to enforce a mortgage on the same be stricken out and disregarded as not.germain to this action and as being- matter over which the parish court had no jurisdiction; and further ordered that the issues be confined to'the nullity of the will and the probate thereof and the question of “res adjudicatci” raised in the answer of the defendants and the petition of intervention. The plaintiffs’ counsol filed an exception to the authority of the district j udge to take cognizance of this case in the parish court and prayed that it be transferred and assigned to the docket of the district court, there to be tried by jury, a right to which is claimed by the plaintiffs. The judge overruled the exception and motion to transfer, and it is from this ruling and that to strike out and disregard portions of the answer to the intervention that the present appeal is taken. The plaintiffs’ counsel has favored us with an elaborate-argument and reference-to authorities, most of which we consider it unnecessary to review.

This suit proper was simply to annul a will and the probate of a will and to have certain persons plaintiff declared heirs and entitled to take as such. This was purely a probate proceeding- and cognizable alone by the parish court in which the succession was opened. It was a matter incidental to the opening and settlement of the succession. Cdnstitution, article 87; Code Practice, article 928 to 943; same, 1000 to 1003; same, 921 to 925. Courts of probate have no j urisdiction except in the cases determined by the law. C. P. 925. The nullity of the proceedings for the probate of the will and of orders in execution of it must be sued for in the court which rendered them. C. P. 608; 15 An. 81. This proposition however is so rudimental that citation of authority is unnecessary. If different causes of action be alleged, of some of which the probate court has jurisdiction, and of others not, it should take cognizance of the former and reject the latter. Taylor vs. Hollander, 4 N. S. 537 ; Ager vs. Dunning, 7 N. S. 660.

A claim in reconvention can not alter the rule or affect the jurisdiction of the main action. Flood vs. Shamburgh, 3 N. S. 622; Duncan vs. Duncan, 14 L. 556. When the jurisdiction of the court where the suit is brought has once attached it will be maintained. Bayne vs. Fox and Fox vs. Bayne, 5 R. 2. The demand in intervention must be before the same court in which the original action is brought, and must follow that jurisdiction (C. P. 392) which can not be affected or objected to on account of the intervention. Sec Kenner vs. Holliday, 19 L. 154. The intervention can not affect either the jurisdiction or authorize interference between the original parties or the pleading of exceptions to'dismiss the action. 8 M. 55; 4 N. S. 488; 3 L. 183; 8 R. 123; 3 A. 222. The rights of the intervonor are limited to the protection of his own interest. 5 N. S. 501. If ho have such interest ho may intervene. C. P. 390. In the case at bar this is all that the intervenor has done, and for the protection of that interest he has joined in the defense, and in asking the rejection of the plaintiffs’ demands. He has not asked the probate court as an original or independent matter to pass upon the title to real éstate of value beyond its jurisdiction, but only alleges title in himself to lands conveyed by the will, the maintenance of the validity of which he alleges is essential to his title. The allegation of title to lands is merely incidental, to show interest in the pending controversy and consequently his right to intervene. For this purpose and to this extent the parish court had jurisdiction of the question of title as incidental to the main action to which the intervention was only incidental and subsidiary. C. P. 101. All judges possess the powers necessary for the exercise of their respective jurisdictions, though the same be not expressly given by law. C. P. 130. While therefore the probate or parish corn t could not directly pass upon the matter of title to lands above the value of five hundred dollars, having jurisdiction to annul its own decrees and in the matter of heirship and succession and the validity of the will when directly attacked, it was competent and had jurisdiction to take cognizance of the title so far as it affected the right to intervene and came in question collaterally. “Quando lex aliquid concedit concederá videtur et id quod devenitur ad illud.” See 8 N. S. 520; 5 R. 284; 8 R. 488; 3 A. 582. This was the extent and limit, however, of its jurisdiction as to the matter of title to the land, as to which or the assertion and enforcement of mortgage rights over it where the value, as in this case, appears to have been several thousands of dollars, the parties were necessarily remitted to the court of ordinary jurisdiction. The court below' therefore did not err in refusing to take jurisdiction for such purposes, which were not incidental or collateral to the main action before it. We think, however, that so far as it was necessary to contest the right of Ober to intervene, in other words, his interest in the pending controversy, that the plaintiffs have a right to contest his title or the fact of his having any title to lands once the property of the succession but no farther, and for no other purpose. Under the adjudications quoted and the principles announced they should be allowed to do this, and while in the main the ruling of the judge a quo in regard to the answer was perfectly correct, it must be modified to this extent if it conflicts with this right of the plaintiffs. We think the parish court was the court of proper jurisdiction to hear and determine the real substantial controversy between the parties, and that it could and should pass upon all incidental questions necessary for such consideration, and to that extent only. If, however, it were without jurisdiction it could not even make an order transferring the cause tó the district court, but could only dismiss it. Roman vs. Roman, 4 L. 203.

The case of De Lizardi vs. Gossett, Executor, 1 An. 138, is much relied on by the plaintiffs. One of the creditors of a partnership sued the executor of a deceased partner in commendam in the probate court of Orleans for an unpaid balance of capital promised to the firm of which there were other creditors. The plaintiffs were nonsuited for want of jurisdiction in the probate court to distribute the fund. The case was appealed, and meanwhile, under a change of constitution, the Second District Court of Orleans, having general jurisdiction, became the successor of the court of probates. On appeal, while admitting the want of jurisdiction in the probate court, this court, invoking the authority of article 21 of the Civil Code to proceed and decide according to equity, and assuming the silence of the law on the subject, reversed the judgment below and remanded the case to the Second District Court to take order for the distribution of the fund due by the succession among the partnership creditors.

It appears to us that the jurisdiction of this court being derived solely through an appeal from a court without jurisdiction of the ease it could make no order except simply to review the action of the court below, which was solely on the question of jurisdiction, and that the judgment given on appeal involved the assumption of original jurisdic tion by this court. At all events, the case is without authority here, as the parish court still exists with undiminished and unchanged jurisdiction within which comes the case at bar; and as the law is not silent and does make provision for its disposition there is do room or place for the application of the principle of article 21 of the Civil Code, which we have never before known applied to the jurisdiction of a court.

The case of Prentice vs. Waters, 3 N. S. 522, was decided under the express provisions of a statute which took away the jurisdiction of the court where the suit originated and conferred it upon another, and the court said that though the legislature had not pointed out expressly the mode of transferring the record, the Tatter court having jurisdiction virtually possessed the means of exercising- its jurisdiction, which must be by the record being sent to it. The appeal was from the rescission of an order to transfer the record to the court having jurisdiction. There is no similitude to the case at bar, and therefore the case quoted is without authority here. The case of Fairniquet vs. Perkins, 7 Howard 167, was of a transfer from the probate to the district court, and the Supreme 'Court of the United States said : “It was a transfer of a litigation by consent from a tribunal confessedly without authority to decide it to a tribunal in every respect competent to take cognizance of the subject matter, whose peculiar provision and duty it was to take cognizance of it. The exception resolves itself at the utmost into matter of form, which the parties were competent to waive, and which they did waive; for it is expressly stated upon the record that the removal of the cause from the court of probates to the district court was by the consent of all concerned.” It can not be pretended that the forms of pleading may not be dispensed with by suitors. This case also originated under the system prevailing in Louisiana prior to the constitution of 1845. In the case at bar both of the essential conditions of that.case are wanting: First, there is no consent, but on the contrary a refusal to consent to transfer; and, second, the court in which the suit was instituted has jurisdiction to hear and determine all the issues germain to it. The case of Gaines vs. Chew, 2 Howard 640, .is against rather than in favor of the position of plaintiffs, as it holds after a recital of the articles of the Code of Practice that the court of probates in Louisiana had exclusive jurisdiction in the proof of wills; “and that where a will had once been admitted to probate, a claim that it had been revoked by a subsequent will, and the latter alone is operative, can not bo made effectually, so as to set up title under the latter will, save in a court of probate.” Of this case it may be also remarked that it originated under the system prevailing in Louisiana prior to the constitution of 1845.

The court below did not err in the present case in taking jurisdiction and refusing to transfer the case to the district court. Neither did it err in its ruling in regard to the answer oí the plaintiffs to the intervention so far as by that ruling it refused to hear or entertain at the instance of plaintiff any inquiry into or enforcement of mortgages upon the land claimed by the intervenor. or into the matter of title at all, further than as incidental to the question of interest of the intervenor in the plaintiff’s demands and the validity of the will and its probate. In other words, our opinion is that in answer to the allegation of title by the intervenor the plaintiff should be allowed to aver and show any absolute nullity in the title set up or the absence of all color of title for the pur•pose of contesting his right to intervene — his interest in the cause, but no further, and that the plaintiffs must be remitted to a direct action in a court of ordinary jurisdiction to contest or attack the title of the intervenors to any greater extent or on other grounds. Indeed, they have themselves no interest in this suit to do more, for if, as alleged by themselves, the title of the intervenors is derived through the instituted heirs, and it shall be deemed that they had themselves no title because of the nullity of will, their only m uniment, it will necessarily follow that the title of the intervenors will fall with that of those from whom they have ■derived it, unless protected by prescription.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be so far modified as to permit the plaintiffs to contest the title of the intervenor only to the extent and for the purpose of disproving any interest in him in accordance with' the principles of this opinion and no further, and that in all other respects it is affirmed, and that appellees pay costs of appeal. ■

On Application fob Rehearing.

This application affects only the question of costs of appeal, with which the appellees were charged by our decree, as is now urged by counsel erroneously. The brief of counsel and the rapid succession in the transcript of the entries in regard to the ruling of the judge a quo on the motion to strike out part of plaintiff’s answer to the intervention and refusing to transfer the case to the district court together with the intimate relation of the two orders led us to consider the appeal applicable to both, and hence as a consequence of the modification of the. former to charge the appellees with the costs.

We had some hesitation at the time in even considering an appeal from the motion to strike out, and only did so at all owing to the relation to and dependence upon each other of the two orders complained of. Intervenor’s counsel however insists, and we think correctly, that the appeal relates really only to the refusal to transfer the case.

A rehearing is therefore granted to correct our decree in the particular mentioned.

On Rehearing.

It is ordered and adjudged that our former decree be so amended as simply to affirm the order appealed from refusing to transfer the cause, and that appellants pay costs of appeal.