text:
    No. 10,569.
    C. H. Parker, Tax Collector, vs. North British and Mercantile Insurance Company.
    1. The power o£ taxation is derived from, and regulated by, the State Constitution, and the Legislature, in exercising such power, is bound to conform to the Constitution.
    2. The Constitution contemplates two kinds oí taxes, viz: property tax and license tax.
    8. The tax imposed on the “ gross receipts ” oí foreign insurance companies by Sec. 10 of Act 76 oí 1886 is not a license tax, but is levied, assessed and collected as a property tax.
    4. Ataxon “ gross receipts ” is not a tax on the “capital” or “capital stock” oí the corporation; it is an “ income tax.”
    3. "Whether or not the Legislature may constitutionally levy an income tax (which is not decided), if it have such power, it would be an indispensable condition of its exercise that the tax should embrace the income of all, and it could not single out a particular and limited class of persons and require them to pay an income tax, while exempting all others.
    <6. The claim here presents a distinct exercise of the taxing power; being levied as a tax, assessed as a tax, and claimed by the tax collector as a tax, in proceedings applicable exclusively to the collection of taxes.
    7. Different questions would be presented if the act merely required the foreign corporation to pay a certain percentage of its premiums to the State as the condition of a permissive license to enter and transact business in the State.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Walter H. Rogers, Attorney General, and Wynne Rogers, Attorney for Tax Collector, for Plaintiff and Appellee:
    The British Mercantile Insurance Company is a foreign company, doing business in the State of Louisiana, its principal oilice is in the city of New Orleans and its agent is L. II. Terry; therefore an assessment of its gross receipts in the city of New Orleans was properly made under the provisions of Sec. 10, Act 76 of 1886.
    It was the duty oí said agent to pay the tax; failing in that after the legal notices and demand was served on him, it was the proper remedy on the part of the tax collector to take the rule in accordance with the ltevenue Act of 1888 to . produce the property.
    Act 76 oí 1888 does not violate Art. 208 of the Constitution, because it imposes the same burden equally upon all foreign insurance companies, and said article does not prevent the Legislature from dividing objects of taxation into classes, but obliges it to impose an equal burden upon all those who find themselves in the same class.
    If the State of Louisiana has thought fit to recognize foreign charters of incorporation to the extent of permitting foreign corporations to transact business in their corporate name, through agents within her limits, the Legislature had jui undoubted right to attach what conditions it thought fit to the privilege.

      It being proved that at the time of service of the rule the agent had under his control the property assessed, and refuses to deliver on the ground that, iiaving paid to his principal in advance for it, the property is his, the rule will be made absolute notwithstanding, and the agent ordered to deliver. The law can not thus be defeated by acts between the principal and agent.
    The company will not now be allowed to question the correctness of the assessment, not having taken the legal steps to correct it.

      W. B. Sommerville, Assistant City Attorney, and Charles Carroll, Attorney for Collection of State Licenses, s,s Amici Curise:

    A foreign insurance company which has an agent located in this city, which agent is furnished with policies .signed in blank, and which policies are given life and effect by the agent filling out and countersigning and issuing them, is doing business here. I-Iine and Nicholls* New Digest of Ins., page 29, q. 1; page 8.3, See. to; page 27 (d); page 34, Sec. 12; page 173 (a).

      Harry H Hall for Defendant and Appellant: •
    1. There is no authority under the general revenue acts to levy a property tax upon the “premiums received” of a foreign insurance company placing risks in this State by “insurance agents.” Acts 1886, pages 138,'134; Acts 1888, pages 112,113.
    2. If the tax attempted to be levied upon “premiums received” be considered, not as a property tax, but an income tax, then there is no law under which its imposition could be justified. 35 An. 825; Cooley on Taxation, page 28.
    3. Act 76 of 1886, the title of which provides for “determining capital subject to taxation, and which, in its body, attempts to levy a tax upon “ cross receipts,” is violative of Art. 29 of the Constitution of Louisiana, which declares that every law shall embrace but one object, and that shall be expressed in its title. 4 An. 297; 33 An. 568; 38 An. 6S9.
    Because:

      {a) Said Act 76 of 1886 docs not attempt to declare that “gross receipts” are capital; nor if it did would the Legislature be competent by such arbitrary a declaration to change the nature of things.

      (b) “Gi'oss receipts” are not capital. Income is not property. Property, labor or capital is the tax; income the fruit. Desty on Taxation, page 357; 60 Ga. 100.
    The annual receipts of a foreign insurance company paid to its agent as premiums are not property. 29 Iowa 13.
    (cj) The imposition of a tax upon gross receipts, when not considered an income tax, has been held to be in the nature of a license tax; but never as a property tax. 99 111. 872; 93 N. Y. 313.
    4. The premiums received by such foreign company and not retained here have no locus in this State, but follow the domicil of the foreign corporation, and are not taxable here. 3 Col. 350; 4 Wall. 210; 21 Vt. 152; 40 111. 204; 43 Me. 497; 5 Mete. 73; 7 Minn. 198; 1L N. Y. 563; 3 Ore. 13; 8 B. Mon. 2; 47 Conn. 484; 30 Conn. 394,
    The ex*editor can not he taxed when not within territorial limits; nor can debts due to him by debtors therein be considered as being elsewhere than at the domicil of the foreign creditor. 15 Wall. 319; Man. 268; l’Nev. 334; Barber Asphalt, 41 An.-; 11 An. 268.
    5. The foreign insurance company, which permits insurance agents or brokers within this State to take risks for it, does not thereby bring itself within this State for the purpose of taxation. 33 An. 11; 31 An. 781; 40 An. 175.
   The opinion of the court was delivered by

Fenner, J.

Act No. 76 of 1886 is entitled “An Act in relation to insurance companies, corporations, associations, partnerships and individuals of foreign governments doing fire, river, inland navigation or marine insurance business in this State, limiting publication or rendering of statements, determining capital subject to taxation, collection of same, penalties and requirements.”

Various sections of the act deal with the terms and conditions on which foreign insurance companies are permitted to conduct business in this State, with various duties required of them in the conduct of such business, and with the estimation and fixing of the capital stock of such company as the standard in proportion to which the size of its risks is to be regulated in accordance with the general insurance laws of the State.

Section 10 of the act then provides:

“ The capital, etc., so determined and certified, shall be subject to taxation, the same as the capital of fire insurance companies organized under the laws of this State, to be levied, assessed and collected as prescribed by the laws of this State, at such place in this State as such foreign insurance company shall have its principal office; provided, however, that said capital has not been taxed and paid by the main agency or company in any other State, then taxation shall be levied upon the gross receipts, less deductions governing companies organized under the laws of this State.”

Under this section, the defendant company was assessed for the years 1887, 1888 and 1889 on the gross amount of premiums received in this State.

Having failed to pay the tax the tax, collector takes this proceeding under Sec. 54 of Act 85 of 1888, to compel the company (through its agent) to deliver up the property assessed, or so much thereof as may be necessary to satisfy the tax.

The defendant denies its liability for the tax on various grounds, of which we only find it necessary to consider one, viz: that there is no valid warrant of law for the assessment and collection of the tax.

The State, in this matter, is undoubtedly exercising the power of taxation. This power is derived from, and regulated by, the Constitution of the State. No matter who may be the subject, or what may be the object of the tax, the State, in exercising this power, is bound to conform to the requirements of the Constitution.

That instrument makes no distinction of persons, and a tax which would be unconstitutional, if levied on property belonging to citizens of the State, is equally unconstitutional as against foreigners, whether individuals or corporations.

The decisions of the Supreme Court of the United States, holding that "the States may impose such terms as they see fit, as the conditions of their consent to permit foreign corporations or corporations organized in other States to enter and do business in a different State, without thereby violating the Constitution of the United States, have no application to this question. Paul vs. Virginia, 8 Wall. 168; Ducat vs. Chicago, 10 Id. 410; Doyle vs. Ins. Co., 94 U. S. 535.

These decisions only held that State laws of this character, though making discriminations against foreign corporations, did not conflict with those provisions of the Federal Constitution with reference to the privileges and immunities of citizens of different States and the regulations of commerce.

No protection of the Federal Constitution is invoked here.

The tax is resisted on the ground that it is without warrant under the Constitution and laws of the State.. The Constitution contemplates only two kinds of taxes, viz: property taxes and license taxes.

We are not prepared or required to say whether such a tax, if imposed in proper terms as a license tax, would be valid.

It is not, and does not purport to be, a license tax. A license tax is not covered or contemplated by either the title or body of the act.

The very proceeding taken by the State is one provided exclusively for the collection of property taxes, and under the terms of the pleadings, as well as under the assessment itself, it is claimed and denominated as a tax on property.

Then the question simply stated is, whether a property tax levied on the “ gross receipts” of a limited and particular class of persons, and not levied upon the “ gross receipts” of any other class, is valid.

The plain constitutional mandate that “ all property shall be taxed in proportion to its value,” would seem peremptorily to settle this ■question. If “ gross receipts” be properly subject to taxation, the “ gross receipts” of all, or of none, must be taxed.

It is vain to call “ gross receipts” “capital;” they are not “ capital” or “capital stock,” and no legislative declaration can make them so.

The only class of taxes under which this can possibly fall is that of an “ income tax.”

It is not necessary for us to decide whether or not, under the Constitution, the Legislature has power to levy an income tax. It suffices to say that, if the Legislature had such power, it would be an indispensable condition of its exercise that the tax should embrace the-incomes of all persons not exempted; and whatever power of classification the Legislature might possess as to the subject matter of taxation, that power could, under no pretext, be stretched so as to embrace the right to single out a particular class of tax payers and to require them to pay such a tax while exempting all others.

This is what the Legislature has attempted to do in this instance, and we are bound to hold that it can not be constitutionally done.

As we have heretofore intimated, if this act merely imposed on-the foreign insurance company the duty of paying to the State a-certain percentage of its premiums received, as the condition of a permissive license to transact business in this State, different questions would be presented. That would not be a tax, and would not involve the exercise of the taxing power.

But the imposition here is levied as a tax, assessed as a tax, claimed as a tax by the tax collector, under proceedings provided exclusively for the collection of taxes. It is a distinct exercise' of the taxing power, and must be governed by all constitutional requirements and limitations applicable thereto.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that there be now judgment in favor of defendant, rejecting plaintiff’s demand at his cost in both courts.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 10,539.
    Factors and Traders Insurance Company in Liquidation vs. Mrs. Mary Ann Levi et als.
    1. A mortgage creditor of a delinquent tax payer having taken executory proceedings in the foreclosure of his vendor’s lion and special mortgage, and at public auction caused the mortgaged property to be adjudicated to him, occupies just the same relation to the assessment of the property for taxes as-the mortgagor and tax payer does. Such executory proceedings are in affirmance of the taxpayer’s title, and, as adjudicatee, the plaintiff can assert no higher 2'ight than his mortgagor could have done; and the limitation which the law imposes upon the tax debtor’s right of complaint against an alleged illegal assessment is binding on such adjudicatee.
    2. The prescription of three years provided by Article 186 of the Constitution only applies to unrecorded tax liens and privileges.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Charles Carroll and Frank N. Butler for Plaintiff and Appellee.

      W. B. Sommerville, Assistant Oity Attorney, contra.

   The opinion of the court was delivered by

Watkins, J.

In 1877 the plaintiff, as a going corporation, made-sale of a piece of city real estate to Abraham Levi for the price of §22,000, of which §6000 was paid in cash, and for the balance the purchaser gave notes secured by mortgage and vendor’s lien. During the year ensuing Levi died testate. By the terms of his will, and of the law, his surviving widow was recognized as the owner in her own right and as legatee of decedent’s half the of the community property, less the shares of three heirs of one-tenth each, subject to the widow’s usufruct during life. The will was duly probated and Mrs. Levi placed in possession.

Alleging the non-payment of the capital and some of the interest instalments, and the failure of the widow and heirs to pay the taxes-assessed against the mortgaged property, the liquidating commissioners of the insurance company brought an ordinary action against them jointly, asking judgment for the debt and the enforcement of the vendor’s lien and mortgage securing same. Judgment was obtained, fi. fa. was issued and a sale and adjudication of the property made to the plaintiff in the writ, at the price of §7400, but the sheriff declined to execute a proces verbal of sale, because of the inscription against the property of certain tax liens, privileges and mortgages. To clear the record of these incumbrances as impediments to the execution of a deed of sale, the plaintiff and adjudicatee proceeded by rule against the civil sheriff and the city of New Orleans to show cause why same should not be erased, and from a judgment making same absolute the city has appealed.

The tax inscriptions are those of taxes assessed for the years 1882, 1883, 1884,1885, 1886, 1887,1888 and 1889, and aggregating in amount about 83500 in capital only.

The objections urged to the assessments are: first, that they were made in the name of Widow Abraham Levi, who was not the sole owner of the property, the title thereto being jointly vested in Widow Abraham Levi and the three heirs of the deceased; second, that the taxes, liens and privileges are prescribed, and the inscriptions are therefore void.

An examination of the record fully bears out the correctness of the foregoing statement of facts, and we have for decision two questions of law, viz: first, the legality of the assessments; second, the prescription of the taxes.

I.

Confessedly, the plaintiff in rule is seeking to realize a community debt by the seizure and sale of community property, in proceedings taken against the widow and heirs of the deceased partner in community, who bought the same, and consented to a mortgage thereon for the price.

In a recent case we had occasion to say, substantially, that notwithstanding the actual dissolution of a community of acquets and gains, by the demise of one of the spouses, it has a fictitious existence thereafter, for the purpose of liquidating and discharging community debts; and, as a necessary corollary of that proposition, that although the respective interests of the survivor and heirs are ascertained, and attach, at the very instant of the death of the deceased, yet their rights of possession and dominion remain in suspense so long as there are community debts unpaid. Succession of Dumestre, 42 An.-.

So, in this instance the title of the property remained in abeyance during the several years in which the complained of assessments were made, the rights of the parties being suspended by the wow-action of plaintiff in the foreclosure of its mortgage. If it suited the convenience or pleasure of the corporation to indulge the mortgagee, so that it might realize interest on its debt, it should not expect the city to lose her revenue on account of a possible defect in assessments on the mortgaged property, which was occasioned by the precarious condition of the title, and through its tardiness or delay.

It is a fact in proof, that the property was, for each year, assessed to Widow Abraham Levi.

The taxes thus levied were regularly paid to the State for all those years; and those for the years 1881, 1880 and preceding years, were annually paid .to the city. The tax delinquents have thus, by very strong implication, ratified and acquiesced in the assessments as made.

In case of Carter, Congreve vs. City, 33 An. 816, we said of a similar assessment:

“When the assessment made, with certain description and in a certain name, is valid either of itself or by reason of confirmatory action of the owner, publication and judgment in the same name and with the same description will be upheld, if otherwise regular. Lane vs. March, 33 An. 554.”

In Reed vs. Creditors, 39 An. 115, we applied the doctrine of equitable estoppel to a tax delinquent who complained of the accuracy and sufficiency of assessments.

Desty affirms the principle that “ the fact that a tax on land is assessed to one who does not own it, affords no sufficient reason why the tax should be abated on the owner’s appeal, it not being shown that the tax is excessive.” 2 Desty on Taxation, pp. 628, 629; Carpenter vs. Town of Dalton, 58 N. H. 615.

In Shattuck & Hoffman vs. New Orleans, 39 An. 206, we enforced the provisions of a statute of 1884, which permitted the tax payer to test the correctness of his assessment before the courts, within a specified time; and held that a previous application to the standing committee on assessments was a condition precedent to his right of action, and its non-observance was fatal to his pretension.

In Oteri vs. TaxCollector, 42 An. 374, we said of quitea similar objection to an assessment, urged on the part of a tax payer, viz:

“The contention that some of the property assessed in plaintiff’s name was not owned exclusively- by himself, but owned by himself conjointly with others, involves only the correctness of the assessment and can not be urged at this time” — •i. e., the remedy pointed out in Shattuck & Hoffman’s case should have been seasonably applied, but it had been neglected and lost.

Taking this to be the established rule, in respect to the tax payer, can it be contended effectually that his mortgage creditor has any more serious ground of objection? No. The commissioners of the insurance company sue in affirmance of the tax payer’s title, and their petition contains an averment that they had defaulted in the payment of the taxes, as one of their causes of action. They claim to be the adjudicatees of their title, at public auction, and demand a deed to the property, and to be placed in possession. They can not ■assert any right as growing out of such adjudication which their mortgagors could not assert for themselves.

The situation of the insurance company is not that of a third person asserting title to property under expropriation for taxes illegally assessed; or a right of property adverse to the tax payer; or of joint ownership in property condemned to sale for such taxes.

It is to such cases that the authorities cited by plaintiff’s counsel apply. Sutton vs. Calhoun, 14 An. 209; Marin vs. Sheriff, 30 An. 293; Bank vs. Lannes, 30 An. 875; Lague vs. Boagni, 32 An. 913; Guidrey vs. Broussard, 32 An. 925; Stafford vs. Twitchell, 33 An. 520; LeBlanc vs. Blodgett, 34 An. 107; Davenport vs. Knox, 34 An. 407; Denegre vs. Grac, 35 An. 953; Masparau vs. New Orleans, 38 An. 401.

Had a sale been made in the enforcement of taxes levied under such assessment, the principle announced would not militate against the right of an adverse claimant or joint owner of an interest in the property to sue for the annulment thereof pro tanto, on the ground of nullity in the assessment.

It is, simply and expressed tersely that property so assessed, having been sent to sale under executory proceedings foreclosing a mortgage, whereby the rights of ownership in all of the eo proprietors passed to the creditor, neither the delinquent tax payer nor his mortgagee can dispute the right of the city to require the payment of the taxes due, as a condition precedent to the execution and delivery of a prooes verbal of sale to the purchaser.

In this respect the judgment of the court a qua making plaintiffs’ rule absolute is erroneous.

II.

The prescription urged against the tax liens and privileges which interfere with the vendor’s lien, and mortgage of the insurance company, is that contained in the 176th Article of the Constitution, and which is couched in the following language, viz:

“No mortgage or privilege on immovable property shall affect third persons, unless recorded or registered in the parish where the property is situated, in the manner and within the time as is now or may be prescribed by law, except privileges for expenses of last illness, and privileges for taxes, State, parish and municipal; provided, such privileges shall lapse in three years.” (Italics ours.)

In Davidson vs. Lindop, 36 An. 765, we had occasion to construe this constitutional provision, and held that “the limitation of three years” therein contained “only applies to the special privileges named, when they are unrecorded,” and said: “We understand the article to mean and to say, that no unrecorded privilege shall affect third persons except the special ones mentioned, which, though unrecorded, shall have effect,” provided such (unrecorded) privileges shall lapse in three years.’ ” That interpretation is perfectly correct, and has never been questioned; on the contrary, has been affirmed, and it is conclusively against the demand of plaintiff, because from the record it appears that the liens and privileges for city taxes have been duly registered or preserved as the law requires, and are not, therefore, within the terms of the proviso of that article.

The judgment appealed from is erroneous in so far as it maintains the plaintiff’s plea of three years’ prescription, and- therefore it must be reversed in its entirety.

It is therefore ordered and decreed that the judgment appealed from be reversed; and it is now ordered and decreed that the demands of plaintiffs in rule be rejected at their cost in both courts.


author: McEnery, J.

text:
    No. 10,369.
    William Heath vs. Mary H. Heath, His Wife.
    The abandonment by one of the married persons of the other, to be made the ground of separation from bed and board, must originate in this State, where there is a matrimonial domicil.
    When the matrimonial domicil was in Massachusetts and the abandonment occurred there, and the husband moved to Louisiana, where he acquired a residence, and the wife refused to come-to this .State, he can not sue in the courts of Louisiana for a separation from bod and board.
    The wife never having- been in Louisiana, the husband and wife could not, in her absence, acquire a matrimonial domicil here and have a common dwelling to which she could bo summoned to return.
    PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Rice & Armstrong for Plaintiff and Appellant:
    1. The domicil of the husband established lona fide is the domicil of the wife, except there be legal cause to the contrary. C. O. 120; Schouler on Husband and Wife, Sec. 00; Laquiévs. His Wife, 40 An. 459; 5 X. S. 01; lAn. 313; Vcrrel vs. Bouvaillon, 33 An. 1305.
    2. Actual abandonment by wife of husband’s domicil, when established in another State, and her continued abandonment and refusal to return to him, after lie lias bona fide established a domicil in Louisiana, is ground for qualified divorce in suit brought in Louisiana. Story on Conflict of Laws,81fd., Sec. 230; Schouler on Husband and Wife, Sec. 540; Bishop on Marriage and Divorce, Secs. 180,198; Cheever vs. Wilson, 9 Wall. U. S. S. O., 108; Laquié vs. Ilis AVife, 40 An. 459.
    3. Upon appeal from judgment maintaining exception of no cause of action, the allegations of facts in plaintiff’s petition will bo taken as true.

      A. B. Philips, Curator ad hoc, contra.

   The opinion of the court was delivered by

McEnery, J.

The plaintiff instituted this suit for a separation of bed and board from his wife.

A curator ad hoe was appointed to represent the absent wife, who filed an exception of no cause of action, which was sustained, from which judgment the plaintiff appealed.

The allegations in the petition, which are taken as true for the purposes of the exception, are that the plaintiff and defendant were married in the State of Maine in the year 1856; that they afterward moved to and resided in the State of Massachusetts, where in 1878 the defendant wife abandoned the common dwelling; that in 1882 the plaintiff husband came to New Orleans, where he acquired a permanent residence and established his domicil, and has resided in Louisiana since that time; that the defendant wife refused to return to the common dwelling in Massachusetts, and persists in refusing to come to the domicil of the husband in Louisiana.

From this statement of facts it is evident that the parties to the marriage, which was consummated in Maine, did not contract the marriage under the laws of this State or with reference to the same. The abandonment complained of did not originate in Louisiana, but occurred and continued in Massachusetts long before the plaintiff came to the State to reside therein. The courts of Louisiana will not entertain suits for separation of bed and board and for divorce on matters which occurred in another State before the married parties acquired a domicil in the State. Edwards vs. Green, 9 An. 317.

In.this case the parties to the marriage never had a matrimonial domicil in this State, as the wife has never been here with her husband. There never has been a common dwelling here, and therefore the wife could not abandon it. Muller vs. Hilton, 13 An. 1; Champon vs. Champon, 40 An. 40.

The instant case is identical with Muller vs. Hilton.

In the case of Laquié vs. Wife, 40 An. 459, to which we have been referred by plaintiff’s counsel, the wife haq resided in Louisiana with her husband, who had acquired a domicil in the State. She abandoned the common dwelling after the husband and wife had established a domicil here.

In the instant case the abandonment originated and continued in another State. The married parties have never resided together in the State, and have therefore never acquired any matrimonial domicil in Louisiana to which the wife could be summoned to return.

Judgment affirmed.


author: 'Bermudez, C. J.

text:
    No. 10,480.
    Metropolitan Bank vs. Widow E. Bouny.
    He who takes a note past due, acquires it burdened with all the equities to which it is subject.
    A note paid by its drawer shortly after it was issued, which falls into the hands of a third party who disposes of it after its maturity, passes encumbered with such equities, although it bears endorsements by such party, that interest has been paid on it to certain dates.
    In the absence of proof that the payment of the note was extended before maturity by consent of parties, the tra nsferee can not be protected.
    APPEAL from the Oivil District Oourt for the Parish of Orleans. Rightor, J.

      Buek, Dinkelspiel & Hart for Plaintiff and Appellant.

      Omer Villeré for Defendants and Appellees.
   The opinion of the court was delivered by

'Bermudez, C. J.

This is a i.uit against the widow and heirs of E. Bouny to hold them liable on Ms note of $3000, secured by vendor’s privilege and special mortgage, dated November 14, 1885, and payable one year after date.

The defence is payment or compensation in the alternative.

From a judgment in favor of defendants, the plaintiff appeals.

The contention is, that plaintiff acquired the note after its maturity, subject to the equities between the drawer and the transferring holder at the time, and that, as the note was paid by the drawee after it was issued, or, if not so paid, was extinguished by compensation against the transferror to the bank, the note has no existence, and the plaintiff can iiot recover.

On the 14th of November, 1885, Emile Bouny purchased from H. L. Casey the property described in the petition, the vendor being represented by his agent, Mrs. Leontine Strang, wife of E. J. Strang. The sale was made on credit, the purchaser furnishing a note of $3000, payable one year after date.

On the day of the sale; Mrs. Strang received a check of Emile Bouny for $3000, in payment of said note or the property, and a check of $105 in payment of some furniture sold to Bouny.

On the same day two checks of Emile Bouny, one for $3000 and one for $105, were presented by Mr. Strang to the Branch Depository of the State Bank, and same were certified.

The testimony of the book-keeper of said bank shows that said checks were paid.

The book-keeper of the Louisiana National Bank testifies that on the same day Mrs. Leontine Strang made a deposit of $3105.

J. V. Oharpentier was the clerk of Emile Bouny.

On the 18th of June, 1888, after the maturity of said note, Charpentier pledged same to the plaintiffs.

Oharpentier, on the 4th Of December, 1885, purchased Bouny’s business for $24,000, payable $200 per month.

After the death of Bouny, his widow collected $5024.85 on his life insurance, deposited the money for safe-keeping or for investment with Oharpentier, who gave her his note for like amount.

The note sued on bears two endorsements showing “interest paid up to 14th November, 1886, and to 14th November, 1887,” signed by . J. V. Oharpentier alone.

There is nothing to show when those endorsements were made, and that they were authorized by Bouny or any one representing him or his succession.

Had it been proved that the payment of the note had been extended, by consent of parties, before its maturity, the plaintiff would be protected as an innocent purchaser before maturity against the defences now set up; but in the absence of such proof of extension by consent, before dishonor, the plaintiff must be dealt with under the well established rule of law, as having acquired it after dishonor, encumbered with the equities set up by the defendant, which therefore must prevail.

Judgment affirmed.


author: Pochtí, J.

text:
    No. 10,589.
    Edward Conery, Jr., et al. vs. New Orleans Waterworks Company and City of New Orleans.
    A second appeal can not be allowed from a judgment wliicli had once been appealed in its entirety and disposed of in all particulars, and in all its legal effects and bearings.
    In an appeal taken by motion in open court, all parties .to the suit who arc not appellants are appellees, and all are concluded by the judgment rendered on appeal.
    APPEAL from the Civil District Court, Parish of Orleans. Monroe, J.

      T. J. Semmes, R. H. Browne, E. H. Farrar, E. D. White and G. E. Schmidt for the Plaintiffs and Appellees. (No briefs.)

      J. R. Beckwith, Harry H. Hall and G. A. Breaux for the New Orleans Waterworks Company, Defendant and Appellant.

      W. B. Sommerville, A. W. Hunt, City Attorney, and Garleton Hunt, City Attorney, for the City of New Orleans, Defendant and Appellant.
   The opinion of the court was delivered by.

Pochtí, J.

A proper understanding of the! grounds of the motion will be facilitated by a reference to the following pre-existing proceedings and incidents.

The object of the original suit was to judicially annul a contract entered into in October, 1884, between the city of New Orleans and the Waterworks Company, touching the water supply to the city.

In that suit the city and the company had been made co-defendants, and at first the city pleaded by exceptions and answers, praying for judgment against plaintiffs, its original answer having been filed in May, ÍSSL But subsequently the city shifted its position, and by means of an amended answer, filed in November, 1888, it joined its litigious fate to that of plaintiffs, and it prayed for the nullity of the contract originally assailed by plaintiffs alone.

In that answer the city prayed for leave “to join in the demand of plaintiffs herein; that the New Orleans Waterworks Company be cited according to law, and, after due proceedings, that there be judgment declaring Ordinance No. 909, C. S., adopted by the late Council of the City of New Orleans on the 23d of September, 1884, and signed and approved by the late mayor on the 26th day of September, 1884, and the alleged contract entered into before Jos. D. Taylor, notary, on the 3d of October, 1884, signed by J. Y. Guillotte, late Mayor, on behalf of the City of New Orleans, and Albert Baldwin, president, on behalf of the New Orleans Waterworks Company, null, void and of no effect, and not binding in any manner on the City of New Orleans.”

By a decree rendered in the District Court on the 6th of February, 1889, the contract between the City of New Orleans and the Waterworks Company was declared null and void, and of no binding effect on the City of New Orleans.

One of the clauses of the decree read as follows:

“ It is ordered, adjudged and decreed that the notarial contract entered into between the Oity of New Orleans and the New Orleans Waterworks Company on October 3, 1884, before Jas. D. Taylor, and also Ordinance 909, Council Series, adopted September 23, 1884, on which the said contract purports to have been made, and also Act No. 56 of the acts of the Legislature of the session of 1884, the provisions of which the said Ordinance No. 909 purports to execute, are unconstitutional, null and void and of no effect or validity.”

On appeal taken from that judgment to this court the following decree was rendered on the 22d of May, 1889;

“ It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed and annulled, and it is now ordered that plaintiff’s demand be rejected, the injunction issued herein dissolved and set aside, and the plaintiffs, tax payers, pay costs of both courts.”

From that judgment writs of error were sued out and lodged in the Supreme Court of the United States by both the original plaintiffs, E. Conery, Jr., et ais., and the Oity of New Orleans. Now, on the 5th of March last past there was filed in this court, an appeal taken in the same case and from the same judgment, rendered in the District Court on the 6th of February, 1889, by the Oity of New •Orleans, by its Mayor and by its Treasurer and its Comptroller, all separably complaining that there is error to the prejudice of the City of New Orleans in the judgment thus rendered and thus appealed from.

The Waterworks Company moves to dismiss this appeal on the grounds substantially, that the appeal which has been disposed of by this court in the case had'been taken from the entire judgment of the District Court, that it had been taken by motion in open court, thus making all parties to that judgment parties to the appeal, that the city in whose favor the judgment had been rendered in fact and in law was an appellee before this court, and, as such, was bound by the decree here rendered, which disposed of all the issues covered by the judgment of the District Court, and that the city is therefore stripped in law of the right of now appealing from said judgment, and that the present is really a second appeal from the same judgment.

The only difficulty -in the case is to discover or ascertain the real nature of the relief which the city now seeks at the hands of the court, and to determine its true character as a litigant in the case.

In the incipiency of the contest the city was made a party defendant, it accepted the position at first, and it pleaded as a co-defendant with the Waterworks Company.

Later on, it amended or rather reversed and'overturned its former pleadings, and its prayer was for judgment in favor of the original plaintiffs, almost in the very terms in which the judgment of the District Court was subsequently rendered. It stands to reason that the city did not appeal from that judgment, and on the trial in this court she assumed the position of an appellee, contending for the affirmanee of the judgment then on appeal. This position was followed up by a brief of her attorney, strongly advocating and supporting an application for a rehearing on the decree rendered by this court, which had reversed the judgment of the District Court; and by suing out a writ of errors for the purpose of a reversal of the judgment of this court.

Throughout the whole trial she was considered and treated as a plaintiff and'as an appellee. The following statement is to be found in one of the opinions read in the case: “At the incipiency of the litigation the city was in fact and in law a party defendant * * * But in the progress of the litigation the city shifted her position and now she has practically made herself a party plaintiff. ” * * *

But apparently the present proceedings present a new shifting of scenes, and from the petitions of appeal filed by the city and by her above named officers, it appears that she is now dissatisfied with or aggrieved by the judgment originally rendered in her favor, and almost in the very terms of the prayer of her amended answer.

In this court no assignment of errors or other pleadings have been filed, suggestive of the way in which the city has been aggrieved by the judgment which she now seeks to have reviewed.

Recourse must therefore be had to the brief of her attorneys, and that conveys the information that the error of the District Judge consisted in ruling out evidence which the city had offered below in support of the contention urged by the original plaintiffs. No suggestion is made anywhere that the judgment which was reviewed .and reversed by this court was erroneous in any particular.

The city has therefore not yet concluded to re-shift her position of party plaintiff, and to resume that of a co-defendant, dissatisfied with the judgment rendered in her favor in the District Court.

The following statement in the brief of her attorneys contains the pith of her complaint, and suggests the only error which she desires to have corrected:

'“On January 10, 1889, the City of New Orleans offered evidence in support of its supplemental and amended answer. The same was objected to by Oonery et al., and by the Waterworks Company. The objections were sustained; counsel for the city reserved the point in lieu of a bill of exceptions to the ruling of the court. This ruling is to be submitted on this appeal for reversal or affirmance. (Italics are ours.)

The city is therefore in the attitude of a litigant who has won his suit below, where he has obtained all the relief which he then sought, and who now proposes to appeal for the purpose of correcting an alleged erroneous ruling made by the judge during the progress of the trial. The present appeal is avowedly not from the judgment rendered below, but simply from a ruling covered by a bill of exceptions; the appeal is not even from an interlocutory decree or judgment. And this attitude is taken in the face of an appeal previously brought up from the only final judgment rendered in the case, in which the city, as an appellee, could have suggested and obtained a review of the error now complained of. It is but natural that the city, who then stood upon a judgment totally in her favor, had no mouth for complaint, and would not have ventured to risk her victory by a remanding of the cause. She did not then and she does not now complain of any error in the judgment which she seeks to bring up on appeal, and hence her position is still more untenable than that of the appellee contemplated by Art. 889 of the Code of Practice, which reads: “But if the appellee, on the appeal of the other party, neglect to pray that the judgment be reversed on those points which are prejudicial to him, he shall not afterward be allowed to appeal, but the judgment shall remain irrevocable for or against him.”

In this case the city, originally an appellee, has never suggested that the judgment rendered below was prejudicial to her on any point, and it must be borne in mind that she could not, from the simple fact that the decree was in her favor on every issue presented and on every element of relief prayed for in her amended answer, by which she had practically made herself a party plaintiff.

Hence the city can not fortify her position by the two decisions which she invokes in support of her right of appeal at this time.

In the case of Poeyfarre vs. Delor, 7 Martin 3, the defendant had appealed from a judgment condemning him to deliver possession to plaintiff of a house and lot, and the judgment was affirmed. To his demand for possession plaintiff had joined a claim for damages, which had been ignored in the original judgment. After the affirmance of the judgment in his favor on the question of possession, plaintiff appealed from that part of the judgment which ignored his claim for damages.

The right of appeal was recognized on the distinctive ground that that part or feature of the judgment had not been appealed from. Had plaintiff failed to appeal, the silence of the judgment on the question would in law have been equal to a rejection of his claim, and that judgment, becoming final, would have been a bar to a future action for the same damages. Villars vs. Faivre, 36 An. 398, and authorities there cited.

Hence the court correctly held that his only remedy was by appeal, a right which could not be affected by a previous appeal from a different and distinct feature of the judgment.

The other case, that of Bowman vs. Sheriff, 30 An. 1023, has no bearing on the question at issue, as appears from the following syllabus:

“ An appeal taken separately by one of two defendants, who have been condemned in solido, will not prevent the other from taking an appeal at a subsequent time within the legal delay.”

The foregoing considerations are predicated on the hypothesis that, in the previous appeal, in which the entire judgment was brought up, and was reversed in toto and in every particular, the city was before this court as an appellee in whose favor, adversely, to the appellant, the judgment on appeal had been rendered, and as such deeply interested in and actually contending.for its affirmance.

But that condition of things is now seriously denied by the City Attorney, who says in his brief:

“ The city was not before the court except,that its attorney was heard in argument as any amicus curies would undoubtedly have been, and the interests of the city were in no manner considered and passed upon.”

If this be true, by what right did the city obtain its writ of error before the Supreme Court of the United States? How could she complain of a judgment in which no interests of hers were considered ■ and passed upon?

But these questions are answered by the City Attorney himself, in the following passage taken from his brief, addressed to this court in support of the judgment then on appeal, not acting as an amicus curias appearing therein with the leave and courtesy of the court, but presented as a matter of right, and signed in his official capacity in behalf of the city, in an earnest effort to preserve all the rights flowing from the judgment under discussion.

The same counsel then said :

“But the ease at bar is in no other way whatever the case of Conery et al., but on the contrary that of the city itself, of which they are only like other people, individual citizens. When, instead of associating itself with the Waterworks Company, the city, on the contrary, denounced it; and when, instead of assuming the situation of eodefendant on the record with the company, the city assailed the action of the same as fraudulent and oppressive, and that of the late city government as ultra vires and collusive, the function in the suit, as actors or plaintiffs of record assumed by Conery et al., were clearly no longer demanded of them, and evidently passed to the city as the true plaintiff, whose position, obscured as it undoubtedly had been, by the course of the late council for a time, is no longer now to be questioned. If these views are insisted upon here, it is because of their importance. It would be unworthy of the city to relinquish them; it would be contrary to good morals and correct public policy to do so, and it would be to diminish, if not to surrender, the just strength and character of the decision of the court in the case of Handy.”

And in an able and elaborate brief for rehearing in the same appeal, also signed in his official capacity, the learned and zealous City Attorney concluded with the following earnest appeal for redress on behalf of the city:

“In view of the premises, of the public importance of this litigation, of the instructions of the council, that it should be pursued in behalf of the city, of the great pecuniary interests involved, of the sincere differences of opinion which have been developed in relation to it, of the close division in the court itself, and finally of the rights of the entire population of the entire metropolis which are involved, it is submitted that the granting of .a rehearing will be for the benefit of justice, and for the general welfare.'”

As appears from this quotation, all the proceedings hereinabove referred to were undertaken by the City Attorney under “the instructions of the council,” and the record shows that the most radical differences in the pleadings of the city were the result of an entire change of administration. Hence it is just to state that the apparent legal inconsistencies herein described can not be attributed to the present respected City Attorney, who had no alternative but to carry out the behests of the administration.

The city was a party to the litigation and to the decree rendered; on appeal she was an appellee, and as such was directly affected by the judgment rendered here, which reversed the judgment on appeal in all its parts, in every possible bearing, and in every effect which it could legally and possibly ever have.

Under the showing made, these propositions rest on safe foundations of elementary law, which we may be spared the trouble of quoting even in this appeal, which stands without a precedent in our jurisprudence.

The attempt made in the case of Lacroix vs. Menard, 7 N. S. 345, was not fraught with as much difficulty on the part of the appellant as is offered in the motion now under discussion.

The effort to bring up a second appeal from the same judgment was made in behalf of minors who were not parties to the proceedings. The judge a quo, not seeing his way clear through the venture, declined the order of appeal, and the would-be appellants sought the aid of the Supreme Court, where they met with no better success. Among other things the court said: “ This application in truth is to obtain an appeal from our judgment, not from that of the court which decided the cause in the first instance. * * * We are of opinion we have no power to reverse our judgments in the way attempted here.” * * *

It is clear that the language there used may, with perfect propriety, be applied to the effort now under discussion. See also State vs. Joseph, 12 Rob. 320; Gillespie vs. Scott, 32 An. 767.

It is suggested by the City Attorney that in the Supreme Court of the United States, in the matter of the writ of errors herein referred to, counsel for the Waterworks Company have sought, in certain pleadings, to take advantage of the failure of the city to have made herself an appellant to the appeal before this court, and that the present appeal becomes necessary for the proper protection of the city’s rights before that exalted tribunal. With such a consideration we can have no possible concern; and we have not the power, and much less the disposition to take cognizance of or to interfere with proceedings had or pending before that court. As suggested by the City Attorney himself, ‘1 the Supreme Court alone will, necessarily, have to determine the effect of the appeal before it.”

But we must, and we do, take cognizance of all proceedings which occur in this court. And we find from our minutes of April 8, 1889, that on the appeal in this case argument was heard from “ counsel on behalf of the city;” and from other records we find that on April 9 the Oity Attorney filed in the same case a “ brief for the Oity of New Orleans;” and that on the 16th of November, the same counsel filed in the same case the “brief of the Oity of New Orleans for a rehearing.”

Prom all of which we conclude and we hold that the city has had its day in court in this case, and that her present position is as untenable as it is adventurous and unprecedented.

Of course all considerations which go to the defeat of the right of appeal of the city are equally fatal to the experiment made by its Mayor and by its Treasurer and its Comptroller.

It is therefore ordered that the present appeal be dismissed at appellants’ costs.


author: Fenner, J.

text:
    No. 10,556.
    Heirs of Rebecca Dohan vs. Michael J. Dohan et al.
    Parol testimony, to show fraud or simulation in a sale of immovable property of, an ancestor to the prejudice of forced heirs, may, in a certain class of cases be introduced, hut such evidence never can he introduced by the heirs without the consent of the adverse party to show title in the ancestor to such property.
    Testimonial proof is not admissible for the purpose of proving that a third person was interposed to receive, or to be invested with, the title to real estate, for the use of, and instead of, the intended vendee. O. 0., Arts. 2440, 2275.
    APPEAL from the Ninth District Court for the Parish of Tensas. Young, J

      Wade R. Young for Plaintiffs and Appellants.

      Snyder & Tullís for Defendant and Appellee:
    1. Parol testimony to show fraud or simulation in a sale of immovable properly of an ancestor to the prejudice of forced heirs may, in a certain class of cases, be introduced, hut such evidence never can he introduced by the heirs without the consent of the adverse party to shozv title in the ancestor to such property. Testimonial proof is not admissible for the purpose of proving- that a third person was interposed to receive, or to be invested with, the title to real estate, for the use of, and instead of, the intended vendee. O. 0., Arts. 2440, 2275; 15 An. 5B9, Barbin vs. Gaspard; 32 An. 635, Perrault vs. Perrault; 30 An. 898; 12 An. 449; lb. 213; lb. 878; 14 An. 61; 40 An. 157; McKenzie vs. Bacon, and authorities there cited.
    2. Bad faith is never presumed. O. C., Art. 3481.

      3. Mere knowledge of an attorney at law, not derived in his capacity as attorney of plaintiff, but from his attorneyship for another party, is not binding as notice to plaintiff. 37 An. 755, Templeman 'vs. Hamilton.

      4. The prohibition contained in Art. 1754, C. C., is not a rule in the interest of married women; it applies to married men as well. C. C. 1754.
    5. A wife, duly authorized by her husband, may bind herself by all kinds of contracts, provided the object of the contract be not the payment of the debts of the husband or of the community.
    Even in the latter case she will be bound if third persons have acted in good faith upon the apparent validity of such transactions. 33 An. 1010, Chaffe vs Oliver.
    6. A disguised donation, whether it assumes the form of a direct sale to the party to be benefited, or of a sale to an interposed person, is wholly a simulation. 11 An. 229.
    7. Whatever the secret equities between a vendor and vendee to the simulated contract, the former can not claim them against a subsequent purchaser in good faith. Having placed on the public records the title, on the faith of which such purchaser acquired, the vendor must bear the consequences of having presented the vendee’s rights in a false aspect. Hennen’s Dig., verbo Sale V (a),No. 1; 35 An. 6; 16 An. 435. And this rule applies to married women. Blanchard vs. Castillo, 19 La. 362; 7 An. 682; 31 An. 832 ; 33 An. 1010.
    8. This rule certainly applies in cases like the one at bar, where no written recorded title in the wife existed and innocent purchasers could not suspect that the property standing on the records in the name of the husband alone was really that of the wife.
    9. Plaintiffs admit that there is no direct proof in the record to sustain their demand and rely on presumptions and suspicious circumstances which they claim exist in the record.
    “ Such evidence,” if it existed, “ is too uncertain to justify the courts in taking an estate from one man and declaring it to be the property of another.” 15 An. 643.
   The opinion of the court was delivered by

Fenner, J.

The property involved in this petitory action belonged, prior to 1849, to the succession of Samuel Rembert, which was opened and administered in the parish of Tensas.

On January 6, 1849, this property was sold under order of court by the administrators, and was adjudicated to William Harris for $11,000, part cash and part on credit, in notes executed by Harris. A regular title was executed to Harris and duly recorded.

In February, 1850, Wm. Harris sold the property to Daniel J. Dohan and wife for $11,000, by act of sale duly recorded.

D. J. Dohan executed a mortgage on one-half of the property in favor of E. Woodridge, of which Michael J. Dohan became the owner, and which he foreclosed in ISTO, and became the purchaser thereof at the sheriff’s sale.

The plaintiffs are the heirs of Rebecca J. Dohan, who was the-widow of Samuel Rembert, and one of the administrators of his. succession at the date of the probate sale to Harris. After said sale, in May, 1849, she married D. J. Dohan, and was one of the vendees in the sale by Harris to D. J. Dohan and wife.

The plaintiffs, who are the forced heirs of Mrs. D. J. Dohan, bring this petitory action against M. J. Dohan, in which they aver substantially that Wm. Harris did not buy or intend to buy at the probate sale for himself, but was simply a person interposed to take an apparent title, while the real purchaser was their mother, then Widow Rembert, who adopted such interposition as a method of evading the prohibition of the laws of Louisiana against the purchase of succession property by administrators.

They further aver that, after her marriage to D. J. Dohan, the latter prevailed on their mother to consent that Harris, instead of conveying the entire property to herself, should convey one-half of it to her husband, Dohan; that the husband paid no consideration for the conveyance, and that the title passed to him was, in reality, a disguised donation from the wife to the husband, in fraud of the rights of her children and forced heirs, and absolutely null and void under Arts. 1752 and 1754 of the Civil Code.

The plaintiffs claim by virtue of inheritance from their mother.

The first step in their chain of proof must necessarily be to establish their ancestor’s ownership of the property sought to be revendicated.

They predicate her title exclusively upon the probate sale from the succession of Rembert to Harris, who, they say, was a person interposed to take the apparent title for the benefit of, and under the obligation to convey the same to, their mother. They produce no counter letter from Harris nor any other written evidence to prove that the apparent title of Harris was the real title of their mother.' They seek to establish her title to this immovable property and to destroy the title of Harris now held by the defendant M. J. Dohan, by evidence exclusively parol.

The defendant objected to the admissibility of such evidence, and his objection was properly sustained by the judge a quo.

The fraud or error is propounded against the title to Harris.

No attempt is made to annul it, on the ground that it was passed in fraudem logis.

Oil the contrary, plaintiffs necessarily affirm that title as a valid divestiture of the ownership of the succession of Rembert.

It is not pretended that the sale to Harris was a fraud on the rights of plaintiffs as forced heirs of their mother; on the contrary, it is the sole basis of any rights they could have.

The simple claimis, that Harris bought as agent of the mother and took the. title in her name for her benefit.

The ease is not nearly so strong as several in which it has been decided by this court that even under allegations that a person had been employed to purchase property as agent of another, which latter had paid the price, and that the agent had fraudulently taken title in his own name, parol evidence could not be received in support of such allegations of to destroy the agent’s title. Perrault vs. Perrault, 32 An. 635; Hackenberg vs.’ Garstkoup. 30 An. 898; Baden vs. Baden, 4 La. 166; Nuggah vs. Greig, 2 La. 593.

In another case the court said: “Testimonial proof is not admissible for the purpose of proving that a third person was interposed to receive, or to be invested with, title to real estate or slaves, for the use of and instead of the intended vendee, especially where there is no charge of fraud or other ill practice, because the effect of such proof would be to establish title to real estate by parol, contrary to the express provisions of the law.” Barbin vs. Gaspard, 15 An. 540.

In another it was held that “ where real property is adjudicated to a purchaser at a public sale and the title made in the name of that purchaser, parol is not admissible to show simulation or an agency to make the purchase for the benefit of other co-heirs of the purchaser.” Fuselier vs. Fuselier, 5 An. 132; Heirs vs. Cronan, 12 An. 213; Linton vs. Wykoff, id. 878.

The same doctrine was emphatically reiterated in a recent case. McKenzie vs. Bacon, 40 An. 157.

These authorities conclusively sustain the judge in ruling out the parol evidence offered by plaintiffs, and this leaves their case without any support whatever.

The wisdom of the rule is strongly illustrated by the very ease here presented, in which parol evidence is invoked to upset titles nearly forty years old, on the faith of which third persons have invested their money.

Judgment affirmed.


text:
    No. 10,465.
    Harmony Club vs. New Orleans Gas Light Company.
    , 1. The jurisdiction of this court, in cases like the present, must be tested by the pecuniary amount or value in dispute according to the nature of the action as disclosed by the substantial allegations of the pleadings, and not by mere jurisdictional allegations or affidavits of one of the parties.
    2. The record shows that the pecuniary value in dispute here does not exceed $2000.
    APPEAL from the Civil District Court for the Parish of Orleans. J.

      Henry L. Lazarus for Plaintiff and Appellant.

      Buck, Dinkelspiel & Hart for Defendant and Appellee.
   The opinion of the court was delivered by

Fenner, J.

We are confronted with a challenge to our jurisdiction ratione materias over this appeal, which we are bound to determine.

The facts are simple and undisputed.

The Harmony Club had upon its premises, furnished by the Gas Light Company, what is called a “ 45-light meter,” adequate to the supply and registry of all its gas burners. In common with many other gas consumers, it adopted the system of electric lighting, and its use of gas became only occasional and greatly reduced.

The Gas Company adopted certain rules applicable to this class of consumers, the meaning and effect of which are, that it would .only furnish meters proportioned in size- to the amount of gas consumed; that a “45-light meter” would only be supplied, or continued, when the monthly gas bill was at least $8 per month, or, if less, upon the payment of an extra rental of $4 per month.

A copy of these rules was served upon the club, and notice was given that unless complied with its meter would be removed and replaced by a smaller one.

The club, being unwilling to comply and denying the right of the Gas Company to adopt or enforce such rules, instituted this suit for an injunction, prohibiting the latter from removing or interfering with the meter then upon its premises.

The Gas Company responds, affirming its right to adopt and enforce the rules in question.

This is the sole issue involved in the case.

If it should be determined that the Gas Company has the right to adopt and enforce the rules, the injunction necessarily falls. If, per ■contra, it has no such right, the injunction stands.

What is the amount or pecuniary value involved in such a suit?

It is not pretended that the Gas Company will interfere with the meter if the club consumes gas to the amount of $8 per month, or if, consuming less, it pays $4 additional for the rent of the meter.

It is not denied that the club is bound to pay for the amount of gas, large or small, actually consumed by it.

Therefore the only value possibly involved is the right of the company in a certain contingency to charge $4 per month for the use of its meter, or $48 per annum.

If this were a right in perpetuo, it would be difficult to find an invester who would pay $2000 for the privilege of collecting $48 per annum.

But, in point of fact, the Gas Company’s charter expires in thirty-five years, and a simple calculation would show ¡that, if collected •during that period, the gross amount would not exceed $1700.

Moreover, the club is not the owner of the building, but a lessee, and is only interested during the term of its lease, the extent of which is not shown, but is, presumably, limited.

We are not concerned with the damages which the club might have suffered had its gas supply been cut off or diminished, as threatened. No such damages have accrued or will accrue. If the injunction herein be perpetuated, that will prevent such injury. If it be dissolved, the act of the Gas Company will be declared lawful •and no such claims can arise.

We have repeatedly held that the jurisdiction of this court must be tested in such cases by the pecuniary amount or value in dispute, according to the nature of the action as disclosed by the substantial allegations of the pleadings, and not by the mere jurisdictional allegations or affidavits of the parties. Buddig vs. Baldwin, 88 An. 894; State ex rel. vs. Miscar, 34 An. 834; Wilkins vs. Gantt, 32 An. 929; Crean’s Case, Id., 1191.

Most of the eases quoted by appellant only concern the right to sue and to enjoin, neither of which rights are controverted here.

We decline to follow him into the records in the cases of Callery vs. Waterworks Co., 35 An. 799; Levy vs. Same, 36 An. 942, and Ernest vs. Same, 39 An. 551, in order to determine whether or not we had jurisdiction in those cases. The opinions show that no such question was raised or passed upon. Had it been, we should have applied to them the same rules now stated. If, inadvertently and in absence of suggestion to that effect, ye exercised jurisdiction which we should have declined (which we by no means admit) such error neither harms nor benefits the plaintiff here, whose right must be decided according to law.

It is therefore ordered that this appeal be dismissed at appellant’s cost.


author: Watkins, J. Watkins, J.

text:
    No. 10,549.
    R. F. Learned vs. George L. Walton. R. M. Walmsley & Co., Intervenors. Mrs. H. Rosenthal, Third Opponent.
    1. In case tlie defendant in apending suit raises the question of the nullity of a sale made to the plaintiffs pendente lite, by way of an answer and reconventional demand, a previous tender is not a condition precedent thereto; particularly when the sale has been made in the foreclosure of a special mortgage, and the mortgagee become the purchaser and attributed the whole of the price to the satisfaction of.his mortgage claim.
    2. A clause in an act of conventional mortgage, stipulating a waiver of the benefit of appraisment, is valid in law.
    3. A sequestration of property which is immovable by destination, and forms part of realty under mortgage, but which has been removed therefrom by the mortgagor, as an ancillary proceeding, for the recovery and restoration thereof to the mortgaged premises for seizure and sale, is a legal and valid proceeding, and does not have the effect of converting executory proceedings into those via ordincw'ia.

      4: In case some third person opposes the claim of the mortgage creditor, and sets up title in herself to the property thus sequestered, and the former retorts in an answer that the third opponent’s title is simulated and fraudulent, this pleading does not have such effect.
    5. When the mortgagor enjoins the sale, and the mortgagee, in his answer, prays judgment for the mortgage debt, his right thereafter to proceed under the writ of seizure and sale enjoined is abandoned and lost.
    6. A creditor seizing* a plantation under a writ of seizure and sale, in foreclosure of a mortgage, has the right to require the sheriff holding the property to cultivate it, while under seizure, for the account of the mortgagor, upon making the necessary advances for that purpose; and he has the right to recover the amount of such advances, and value of his services.

      7. The cost of such cultivation, keeper’s lees, and all other costs incurred, other than sueli as are covered by the statutory lee bill, must be taxed on rule as a supplement to the final judgment.
    APPEAL from the Ninth District Court, Parish of Concordia. J.

      Steele & Dagg for Plaintiff and Appellant:
    A real tender is a condition precedent, and sine qua non to authorize a suit to rescind a sale. Where no such tender is alleged or proved the action to annul and rescind the sale must be dismissed. Farquhar vs. lies, 89 An. 874.
    No answer or exception is required to a demand in reconvention.
    The mortgagor may waive appraisement in the act of mortgage and such waiver is legal and valid. 29 An. 210; 19 An. 89; 18 An. 68.
    A mortgage debtor, who, after acknowledging his inability to pay and his intention to abandon or surrender the mortgaged property, fraudulently removes the work stock, implements and supplies covered by the mortgage and otherwise purposely obstructs the cultivation of the plantation, is thereby estopped from contesting the costs incurred by the sheriff in cultivating the plantation while under seizure.
    It is the right and duty of the sheriff to manage and cultivate plantations while in his custody, if he can provide means to do so. O. P. 661, 283; Lockhart vs Morey, So. Ttop., Vol.- 4, p. 581; Lambert vs. Joffreon, 41 An. —.
    Many irregularities in judicial sales which might suffice to retard a sale, will not avail to annul a sale. Hence, where the defendant, upon a rule to show cause,, interposed no objection to the cultivation of the place by the sheriff, or to the disbursements made for that pui'pose, was present at the sale and made no objection to the sale of the plantation with the growing crop and property placed thereon by the sheriff, he will xiot be heard to complain that such action by the sheriff or sale was illegal, or the sale null.
    All such things as the owner of a tract of land has placed thereon for its service and improvement arc immovables by distinction, and will be covered by a mortgage, though not specially mentioned. The animals and articles enumerated in C. O. 468 are illustrative, and do not exclude others of the same class not specially enumerated. C. O. 468; Moussier vs. Zuntz, 14 An. 26.
    Cows and calves, hogs and an iron safe, placed on a plantation by the owner, for its service or improvement, form a part of the plantation, and are covered by the mortgage. 14 An. 26.
    The mortgage upon movables attached to and forming part of a plantation will not he divested unless sold in good faith, and removed before the seizure.
    Whore no px*ice had been paid the sale will be px'esutned to have been simulated. Fisher vs. Moore, 12 Rob. 95; King vs. Atkins, 83 An. 1057; Ross vs. Keefe, 28 An. 931.
    Third oppoxxent can not arrest the sale of property in dispute without injunction. 4 An. 279; C. P. 339.
    Upon tl^xo failux’e of third opponent to return pi*operty released by him, upon the demand of the sheriff, the release bond is forfeited, and no suit or action on the bond is required to authorize execution against the principal and surety of the bond. Act 170 of 1880, p. 137; 3 An. 279.

      JjiLce & Lemle contra:

    On‘Main and Reoonventionat, Demands.
    1. Tlie proceeding via excutioa lias been changed to a proceeding via ordinaria. 12-Axi. (¡42; 8 N. S. 498, 653; 4 La. 90,307; 16 La. 100; 17 La. 372.
    2. The seizure terminates by reason of such change, the release bond is thereby canceled and the sheriff’s sale annulled. 32 An. 1285.
    8. The sheriff, pending seizure, can only do such acts and make such disbursements as arc necessary for the preservation of the propei’ty seized. O. P., Art. 661; 39 An. 698; 32 An. 135; 23 An. 429.
    4. A rule should be taken and tried contradictorily with parties in interest, to fix and determine the expenditures by the sheriff Cor the working of a plantation and cultivation of a crop thereon. 2 An. 148; 5 N. S. 236; 4 An. 218; 3 An. 276; 10 An. 701.
    5. Property not seized and not advertised cap not be sold at sheriff’s sale. 5 An. 255; X La. 43; 9 La. 542.
    On Sale to Third Opponents. •
    1. The contract has all the elements of a sale, and can not be avoided on suspicion and supposition.
    2. The burden of proof to establish fraud and simulation is on the creditor.
    8. The sale having been made in due course of trade to one not a creditor, can not be avoided, though Rosenthal was aware of the insolvency of Walton.
    4. Plaintiff Learned, having been offered by Walmsley <& Co. all that was due him* has suffered no injury, and is without interest to avoid the sale.
    6.The sale of the products can not be sot aside for the further special reason that W. (4. Walton, as lessee, made such products; that Walmsley & Co. treated and dealt with him as lessee, suing him on the obligations of lease, and that Learned, having been informed of such lease and cultivation by W. tí. Walton* acquiesced therein, anticipating a benefit from such an arrangement, and that Learned and Walmsley are thereby estopped from alleging such products to be-the property of Geo. L. Walton.
    6. That Walmsley & Oo., having judicially declared that a sale had been made to Rosenthal, are thereby estopped from denying and contesting such sale. 26 An. 411; 32 An. 670; 34 An. 310; 19 La. 59S; 40 An. 330; 12 L. 266; 16 L. 150; 16 An. 402; 24 An. 158, 667.
    Forfeiture of Bond.
    1. The evidence shows it was impossible to comply with the demand to produce.
    2. The law did not authorize the sheriff, without order of court and before trial of third opposition, to demand the return of the property.
    3. The plaintiff can not both recover the property and collect the bond. 26 An. 742; 28 An. 403; 30 An. 523.
   The opinion of the court was delivered by

Watkins, J.

The multifarious issues raised in this case require a careful’and concise statement in chronological order, to be clearly understood and properly appreciated.

On the 2d of January, 1889, the plaintiff, Learned, obtained an order for the seizure and sale of the defendant, Walton’s Ashland plantation, with its improvements and appurtenances, in the foreclosure of a special mortgage of $8100 — the act stipulating the pact da non alienando and a waiver of the benefit of appraisement.

On the 10th of January, prior to the issuance of the writ, the plaintiff obtained a sequestration of certain movable effects, which were immovable by destination, and formed part of the mortgaged property, though some of it had been removed therefrom. This proceeding had for object to restore and maintain, intact, the property which was affected by the mortgage, and was ancillary to the executory proceedings — the sequestration only being intended to aid in subjecting the movables to the writ of seizure and sale.

On the 16th of January — likewise prior to the issuance of a writ of ■sale — Walton, the . mortgagor, enjoined and prohibited the sheriff from making a seizure of the mortgaged property, on the ground that the creditor had given him an extension of time, and his action was premature.

On the 23d of January R. M. Walmsley & Co. obtained a like order of seizure and sale against the same property and appurtenances, in the foreclosure of a second mortgage of some $4000; and on the 29th of same month the mortgagor, Walton, enjoined on the ground that the debt had been paid.

The sheriffs’ prooes verbal recites the order of court directing a separate appraisement of the personal property, and the postponement of the sale thereof. It also makes special mention of the sale having been made of the crops growing on and attached to the land at the time, though nothing is stated with reference to any other appurtenances or immovables by destination, forming a part of the property which was seized and sold.

In the meanwhile Learned filed an answer to the third opposition -of Rosenthal, affirming the pendency and full force of his executory proceedings, and his right to have sold, under his writ of seizure and sale, all of the immovables by destination, which are claimed by the third opponent, averring the fraud and simulation of her title [to same, and that it should be annulled and set aside, and praying judgment rejectingher demand of ownership, decreeing that said property be subjected to his “mortgage claim, and that it be sold to pay and .satisfy same.”

Whilst these proceedings were in progress, the seizing creditor induced the sheriff, as a matter of judicial administration, to undertake the pitching and planting of a crop on the plantation, though this appears to have been done under disadvantageous circumstances, as the defendant, Walton, had stripped it of everything which in any way served for the labors of the farm and its cultivation immediately previous to its seizure, leaving it bare. But Learned advanced the necessary means to put farming operations in progress, and a crop was planted by the sheriff’s keepers, and it was well advanced when the sale was made.

In this condition affairs remained until October following the date of sale, when Walton, defendant, filed an extended answer to the third opposition of Rosenthal, and made a reconventional demand on the seizing creditor, Learned, alleging that the sale of the land was null and void for various causes.

R. M. Walmsley & Co. also appeared in various capacities and pleadings, and so did other parties.

On final trial the judge a quo rendered judgment in these cumulated proceedings as follows, viz:

1. Sustaining plaintiff’s sequestration, except as to five head of milch cows, eight head of yearlings, three head of calves, thirty head of hogs, and one iron safe, as to which it was dissolved, they not being considered immovable by destination.

2. Sustaining Mrs. Rosenthal’s third opposition and recognizing her ownership of those items of property only as to which the plaintiff’s sequestration was dissolved.

3. Maintaining defendant, Walton’s, reconventional demand, in so far as to annul the sheriff’s sale to Learned of the Ashland plantation, under the writ of sale.

4. Annulling the sale of William G. Walton to Mrs. Rosenthal of all the property she claimed, except that above mentioned, and certain cotton seed', corn and hogs, and dissolved her injunction restraining the enforcement of her forthcoming bond.

From this judgment plaintiff,.Learned, and third opponent, Rosenthal, alone appeal; the practical effect of which is to eliminate all other parties, and to restrict the issues for our determination to the following, viz: first, the validity of the sheriff’s sale to Learned; second, that of Mrs. Rosenthal’s title from William G. Walton.

Counsel for the defendant, George L. Walton, answered the appeal and prayed for an amendment of the judgment appealed from by allowing him the rent demanded, or by rejecting this demand as of non-suit.

The judge a quo states, in the judgment pronounced by him, that as no evidence was adduced to establish this claim, and counsel for defendant did not refer to it in his argument, it has not been considered ; and for that reason we do not regard it to be a question for our consideration.

I.

Was the sheriff’s sale to Learned a valid one?

The grounds assigned by Walton for its nullity are: first, that the sale was made without an appraisement having been made, and that he had not the legal right to make a waiver of the benefit of appraisment; second, because the creditor, Learned, had, previous to said sale, converted his proceedings via executiva into proceedings via ordinaria, whereby the seizure of the mortgaged property was released, and the sheriff left without power to proceed with the sale.

The counsel of Learned strenuously insist upon the application of the rule, that a previous tender of the amount of the purchase price should have been made by Walton, as a condition precedent to the institution of an action to annul the sale. 39 A. 874, Farquau vs. lies.

Without making any departure from that well-fixed rule, it is sufficient answer to say, that this is not a suit in the ordinary acceptation of that term, but a reconventional demand, which is incorporated in an answer, and the purchaser of the property is the plaintiff in the writ under which the sale was made, and paid no part of the price in cash, as his mortgage was the senior one in rank. In addition to this the judgment revoking the sale recognized his mortgage as still in existence, unimpaired.

It has been frequently decided by this court that a clause in an act of mortgage dispensing with appraisement is valid in law. 18 An. 68; 19 An. 89; 29 An. 210.

The second ground is equally untenable. In neither the petition of Learned for a sequestration, nor in his answer to the third opposition of Mrs. Rosenthal, is there any prayer for judgment in personam against the debtor and mortgagor, Geo. L. Walton, on the mortgage notes. The sole object of the former was, as we said above, to recover and maintain intact, and as a part of the mortgage property, the immovables by destination, and in order that same might be seized and sold under the writ of seizure and sale.

When Mrs. Rosenthal set np a claim of ownership to the identical property which was sequestered, it was perfectly legitimate and necessary for him to protect his right to subject this property to seizure and sale, under the writ of sale, by establishing the fraud or simulation of her title, in aid of his previous sequestration. It was her claim of ownership that rendered this charge an essential issue. Her third opposition created the necessity for this pleading. The third opposition is an integral part of the sequestration upon which it is engrafted.

These are ancillary to the executory proceedings of Learned, and do.not, in any wise, impair their force or effect. On the contrary they are in aid of their efficacy.

Such a sequestration was recognized in Duncan vs. Wise, 38 An. 75, and Mortgage Co. vs. Ralston, 38 An. 595, as legal and proper.

It would be inconsistent to hold at the same time that such ancillary proceedings had the effect of rendering inefficacious, such executory proceedings.

Between the time of the filing of the two injunctions Mrs. Henrietta Rosenthal filed a third opposition in the executory proceedings, claiming the ownership of the mules, cows, calves, yearlings, hogs, wagons, farming implements, etc., by purchase from William G. Walton, the son of the defendant; and she was permitted to release same from the sequestration on furnishing a bond of $2200.

In the meanwhile Walton appealed from the order of seizure and sale on technical grounds, and, in this court, the order was maintained. Learned vs. Walton, 41 An. 233.

On the 16th of- April, 1889, [the two injunctions were dissolved — no evidence having been introduced in their support — and all the property seized was advertised for sale on the 18th of May following, it being described in the advertisement as it was on the 14th of January, when the writ of seizure and sale issued.

The third opponent, Mrs. Rosenthal, was again permitted to release the whole of the personal effects she claimed on furnishing a forthcoming bond for $3750.

As the sale day was approaching, the sheriff gave the third opponent a notification to that effect, and demanded the forthcoming of the property bonded, for sale on that day. Railing to do so, she amended her third opposition, and obtained an injunction against its sale and against Learned’s enforcement of the forthcoming bond, and obtained an order for its separate appraisement and sale. In this the seizing creditor, Learned, appears to have acquiesced, and, as Walton made no further opposition, the naked plantation was sent to sale on the date specified, and the mortgagee, Learned, became the purchaser at the price of $11,000.

Mrs. Rosenthal being a stranger, and third person claiming ownership, and not a party to the Walton mortgage andnotes, it is apparent that no personal judgment could have been asked or rendered against her, and therefore no controversy between Learned and Mrs.Rosenthal could, in anyway, affect Learned’s executory proceedings against Walton. This is evident.

It is only when the creditor and defendant in an injunction suit by his debtor, answers and prays personal judgment against him for the amount of his mortgage claim, that the proceedings via exeeutiva are transformed into proceedings via ordinaria. Our conclusion is that this part of the judgment appealed from is erroneous, and the sheriff’s sale was improperly annulled.

II.

The validity of the sale of William G. Walton to Mrs. Rosenthal depends upon whether or not it was simulated and fraudulent. While it is true that all the things which the owner of a tract of land has placed upon it for its service and improvement, such as working cattle, implements of husbandry, and the like, are immovable by destination and covered by a pre-existing mortgage attaching to the realty, yet the effect of the mortgage is maintained only so long as the condition of immovable by destination continues.

We held in Weil vs. Lapeyré, 38 An. 303, that “a sale in good faith by the owner” of such immovables by destination, “followed b,y actual delivery to the purchaser * * * does liberate the things thus sold from the effect of the mortgage to which they had been subjected, etc.”

The statement of facts on which the title of Mrs. Rosenthal depends is as follows, viz:

In December of 1887, G. L. Walton, the defendant, sold, or purported to sell, to his son, William G. Walton, the immovables by destination, in satisfaction of an alleged claim of $2000 due him as his wages, as manager of the “Ashland” plantation, during previous years. For the year 1888 the father leased the plantation to his son, ostensibly for $3000, and the latter retained the movables on the place, as they were before.

In December, 1888, the son removed a part of this property across the river into the State of Mississippi, and while there, negotiations were opened with Mrs. Rosenthal' (who lived on a plantation in Louisiana about six miles from Ashland), and in consummation of which, it is claimed, she became the purchaser for the stated price of $2600,; and that part of the movables remaining on Ashland was at once removed to her “Union Point” plantation; and the portion that was transported to Mississippi was returned to that place, also.

We have examined the evidence with care, and it has satisfied us that the whole transaction was a sheer simulation. The two important factors in riveting this conviction on our minds are, first, that while the third opponent claims to have derived title from William G. Walton, all the evidence, and particularly the correspondence, shows that George L. Walton, the mortgagor, conducted the negotiations from beginning to conclusion, and neither the name nor pretensions of William G. Walton are therein once adverted to; and second, while all the correspondence points to the consideration as $1000 in cash and six and eight months’ notes for the balance, the parol proof shows that only one note was executed, and it found its way into a bank in Mississippi as a deposit for the account of G. L. Walton’s attorneys.

It thus appears that not only was G. L. .Walton the party negotiating the sale, but the beneficiary of the price.

The onus probandi was on third opponent to show ownership , but her own letters go a long way to show the contrary; and other testimony puts the fraudulent simulation of her title beyond doubt. These demands should have been rejected in toto, and. Learned’s sequestration maintained in toto. The title never passed to Mrs. Rosenthal.

m.

Much has been said in argument and brief in regard to a large claim of over $6060, which is preferred against Walton, defendant, on account of the cultivation of a crop on the mortgaged premises prior to sale, for account of the sheriff, but there is no mention of it in the Judgment appealed from, and the question of its allowance vel non is not properly before us now.

We think there is no longer any doubt as to the authority of a sheriff in proper eases to plant a crop on plantations under seizure. In Lockhart vs. Morey, 41 An. 1165, we said on this subject:

‘ ‘ A vendor seizing a plantation securing his claim has a right to make the advances necessary for the working of the place while in the sheriff’s custody, and to oversee it, with the sheriff’s consent. In both cases he is entitled to recover the amount of the advances shown to have been made and to recover payment for his services.”

To the same effect is Lambeth vs. Sheriff, 41 An. 749; 4 Southern Reporter 581.

Defendant’s recourse is by a proceeding contradictorily taken with the sheriff by rule, as outlined in the Lambeth case, and in Whitney Ironworks Company vs. Reuss, 40 An. 121. The proceeding would be in the nature of an interlocutory one, forming an addendum to the final judgment rendered in the case. See State ex rel. Attorney General vs. Lazarus, 40 An. 856.

The crop that was growing and formed a part of the realty at the date of sale, May 18, necessarily passed with the land to the purchaser;, Learned. The debtor, Walton, did not undertake to prevent its sale, orto require of it a separate appraisement and sale, so as to ■segregate the proceeds of one from the other; and a sale in globo was not objected to by him. But the movables which Learned caused to be placed on the plantation subsequent to the seizure were not expressly mentioned in either the advertisement or proees verbal of sale.

It is questionable whether they formed a part of the immovables by destination, not having been so placed by the owner of the realty. We think the ends of justice would be best subserved by remitting this question also to the determination of the court a qua in connection with the question of cost of cultivation of the plantation and other costs.

It is ordered and decreed that the judgment appealed from be reversed; and it'is now ordered and decreed that the sale of Ashland plantation, to R. F. Learned, be declared legal and valid, and that the sale of the plantation included that of the growing crop. That the sale from William G. Walton to Mrs. H. Rosenthal be declared ■a fraudulent simulation and void; and plaintiff’s sequestration thereof be reinstated and sustained in toto. That third opponent’s injunction, restraining the plaintiff’s enforcement of the forthcoming bond, be dissolved. That all other questions be dismissed as of non-suit, with the rights of all parties fully reserved.

It is finally ordered and decreed that the defendant, Geo. L. Walton, be taxed with all the costs of the main demand and its incidents, and the third oppqnent with all the costs of the third opposition and its incidents; and that third opponent and defendant be taxed with the costs of appeal ratably and proportionately to their respective demands.

On Application for Rehearing.

Watkins, J.

Several defects in our opinion are suggested and in those particulars we are requested to amend our decree or grant intervenor and third opponent a rehearing.

The first one is that until it is first established that the defendant, Walton, is indebted to the plaintiff, Learned, in some fixed amount, the latter has no right to contest the validity of the sale to Mrs. Rosenthal. This is true, no doubt, as a general proposition, but the principle can not be properly invoked here.

The plaintiff held a mortgage for about $8000 on Walton’s plantation and immovables by destination, and sought to foreclose by ex-ecutory proceedings. Not knowing what the land alone would sell for, he sought by sequestration to recover the immovables by destination which the defendant had removed from the mortgaged property, when he was met by Mrs. Rosenthal’s third opposition and claim of ownership of the removed property. During its pendency the land and growing crop were sent to sale and realized $11,000, bid by the plaintiff.

It is the present contention of the third opponent that the proceeds of sale of the land are more than sufficient to discharge the debt with interest, attorney’s fees and all costs, and that there will be no necessity for the sale of the movables by destination or the collection of the forthcoming bond; and that the question of the simulation of the sale to Mrs. Rosenthal should be deferred. This may or may not be'so. It is quite impossible for us to decide that question now. A question of costs was non-suited and remanded for the court a qua to determine on rule. When it shall have determined the question of costs, nothing will remain to be done but to cast up a settlement and ascertain how the balance stands, for or against defendant. If nothing remains due no further proceeding will be entertained looking to the enforcement of the forthcoming bond or the sale of the movables by destination.

But we need not disturb our decree. It will suffice to preserve the status quo in respect to both, and direct that no further proceedings be taken until the amount of costs and charges is determined; provided the property be restored to the custody of the sheriff or otherwise satisfactorily accounted for.

The second point is that the third opponent was not properly put in default, no order of court having been granted directing her to return the property for sale; and if the demand made by the sheriff was sufficient, it was, under the circumstances, practically impossible for him to have returned it by the day of sale. We do not understand that a forthcoming bond operates an absolute release of property from seizure. The law merely extends to the claimant the grace of keeping the property in his custody, pending third opposition contesting the seizure, merely to economize cost.

The only effect of putting the claimant in default is to make the bond exigible. For this purpose a notification by the sheriff is sufficient. An order of court was unnecessary. If, for any reason, it is out of the claimant’s power to return the property on the day fixed for its sale, the execution of the bond may be resorted to, and any other property of hers seized and sold; but it would be competent for her at any time before sale of property under execution on the bond to return the property bonded, and thus abate further proceedings. The date for the return of the property is ordinarily fixed in the bond, and must be rigorously adhered to on the penalty of proceedings of forfeiture being commenced instanter; subject, as we have just stated, to the claimant’s or debtor’s subsequent return of the property released.

The mortgage creditor was entitled to sell all of the immovables by destination under his order of seizure and sale, or under an execution on the forthcoming bond. We have recognized his rights so to proceed, but have restrained all further proceedings until the amount of cost is ascertained.

In the instant case the third opponent’s contention is that as the property in question was on Union Point plantation, forty-eight miles distant from the sheriff’s office, two days’ notification was insufficient, because in the then condition of the roads two weeks’ time would have been required to effect a delivery. It must be borne in mind that third opponent’s injunction only restrained the sheriff from declaring the bond forfeited. Evidently there has already elapsed much more time than was requisite for that purpose, and our decree dissolving the injunction will operate a forfeiture by judicial decree if the property has not been surrendered. But if the released property is not surrendered the creditor can proceed on the bond. One, or both, must respond to the balance due the creditor after the costs have been ascertained, and the proceeds of sale of the land have been first applied to the amount of the principal, interest and cost of the debt.

The third point suggested is, that because W. G. Walton leased Ashland plantation for the year 1888, with the knowledge and full acquiescence of Learned, it necessarily follows that the products raised by him on that plantation during that year are his, and his sale thereof to Mrs. Rosenthal was valid.

In this we think third opponent’s counsel is correct. This lease 'is not attacked in these proceedings by Learned. The possession of W. G. Walton in 1888 is substantiated by proof. The products raised on the place are presumably his and do not form a part of the mortgage debtor effects, which was placed on the mortgaged property for its service and improvement; and hence same does not constitute any part of the immovables by destination. It ought therefore to be declared not subject to the seizure and sale, and that plaintiff has no right of action against it.

In this respect our former decree should be amended. It was not our intention to impose on the defendant particularly, or on any other party, the duty or responsibility of obtaining a rule for the ascertainment and taxing of costs. We made merely a suggestion. We will be more specific and embody it in a supplemental decree.

It is therefore ordered and adjudged that our decree herein previously rendered be so amended as to declare that all products raised on the Ashland plantation in 1888 are not immovables by destination, not subject to plaintiff’s mortgage, and that same shall be released to the third opponent.

It is further and finally ordered and decreed that the right of any and all parties is reserved to proceed by rule against proper parties to have costs, other than those fixed in the statutory fee bill, taxed according to law, and that during the pendency of the proceedings to tax costs, all further proceedings in the enforcement of the forthcoming bond or in the sale of the property bonded, be stayed, that in all other respects our former decree remain undisturbed and that a rehearing be refused.