text:
    No. 3720.
    Alexander G. Compton et als. v. Michael Legras, Tax Collector.
    In a civil case in which the partios are entitled to a jury, if the jury has not been drawn in accordance with law, the verdict will be set aside on appeal, and the cause will be remanded to be tried dc novo.

    from the Ninth Judicial District Court, parish of Eapides. Orsborn, J.

      T. O. Manning, for plaintiff and appellant. 12. A. Hunter, for defendant and appellee.
   Ludeling, C. J.

The plaintiffs injoined the sheriff from selling their property to pay taxes, on the grounds set forth in the ease of' Clara H. Flower v. Michael Legras, tax collector, just decided.

In this ease, however, the plaintiffs prayed for a trial by jury, which was allowed. When the jury was about to be drawn, the plaintiffs objected to the jurors being sworn, and excepted to the whole panel, because not drawn in accordance with law, as they had been drawn from only a portion of the voters, whereas they should have been drawn from all the voters. This exception was overruled; and we are required to pass upon it. The evidence shows that the jury, in this case, was drawn from a box, which contained only a remnant of the names of the voters, who had been selected as jurors in 1870, after three panels had been drawn therefrom for previous terms of the court. Tho act of 1868 declares that “thirty days before the sitting of each jury term of tho District Court of the several parishes (tiie parish of Orleans excepted), tho sheriff, parish judge, and the clerk of the district court, together with two qualified electors to be summoned by the «said parish judge, shall meet in the court house of their respective parishes, and select from the list of registered voters the names of every qualified elector on the same,” * * * “not exempt by law from jury duty, and shall make a list of the same, to be filed in the office of the clerk of the district court. The aforesaid officers and qualified electors shall cause to be written on separate ballots of paper of uniform size, the name of each person so selected and placed upon the list, which ballots shall be deposited in a box to be provided for the purpose, and after being well mixed, one of said officers, under tho direction of the others and of the two qualified electors present, shall draw therefrom not less than forty-eight ballots, and a larger number if ordered by the district judge, and tho clerk of the district court shall, as each name is drawn, enter it upon a,list for record, and deposit the ballot so drawn in a separate box, etc. The list of jurors so drawn for each term shall be filed in the clerk’s office as soon as completed,’’ etc., and “the persons thus drawn shall be summoned by the sheriff to serve as jurors at the next ensuing term of the court,” etc. R. Statutes, 422.

The jury in this case was not drawn in the manner indicated by the foregoing law, and the objections should have been sustained. The plaintiffs being entitled to a trial by jury, the cause must be remanded for that purpose.

It is therefore ordered and adjudged that the judgment of the district court be set aside, and that the case b.e remanded to the court a qua, to be tried de novo. It is further ordered that the appellee pay costs of appeal.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 3503.
    P. O. Peyroux v. Mrs. Ines DeBlanc.
    An action to annul a judgment on the ground of fraud, must be brought within one year from its discovery, otherwise it will not bo maintained.
    from the Second District Court, parish of Orleans. Duvigneaud, J.

      Oharvet & Duplantier, for plaintiff and appellee. Charles Louque, for defendant and appellant.
   Wyly, J.

The plaintiff sues to annul the judgment obtained by the defendant against him on the fourteenth April, 1869, on the ground that said judgment was obtained fraudulently and upon false evidence. The court gave judgment for the plaintiff and tho defendant appeals.

Several defenses are urged; but the. most effectual one is, tho prescription announced in article 613, Codo of Practice, which limits the action of nullity for fraud to the period of one year after the fraud has been discovered. The judgment was signed on the nineteenth April, 1869.

Notice of the fi. fa. issued on said judgment was served on tho plaintiff, P. O. Peyroux, in person, on the twenty-ninth Slay, 1869. He certainly had notice of the judgment and of the fraud, if such there was, on the ninth November, 1869, when he applied for rehearing, the judgment being then signed since nineteenth April, 1869.

This suit was not filed till the thirtieth December, 1870. llore than one year from the discovery of the fraud, if any, had, therefore, elapsed before this action of nullity was instituted.

It is therefore ordered that the judgment appealed from ho annulled, and that plaintiff’s demand he rejected with costs of both courts.

Rehearing refused.


author: Howe, J.

text:
    No. 3343.
    Henry Von Phul, Jr., and Wm. Von Phul v. The City of New Orleans.
    A commercial firm that lias been clisaolved and its dissolution lias "been duly published, can not afterward bo legally assessed to pay licenses or taxes. Not can tlie city or Stato who has made such assessment recover tho taxes assessed on tho ground that it was made ihe duty of such firm to examino and causo to be corrected tho assessment roll within given time. In such a ease the doctrine of acquiescence does not apply. If judgment has been rendered against a firm for taxes assessed after the firm has been dissolved, then aud in sucli case, the firm has tho right to sue for the nullity of such judgment.
    from tho Seventh District Court, parish of Orleans. Col-lens, J.

      McGloin&Kleinpeter, for plaintiffs and appellees. Georye 8. Lacey, City Attorney, for appellant.
   Howe, J.

The plaintiffs were formerly engaged in business as merchants in New Orleans, being partners of the commercial firm “ II. Von Phul, Jr. & Co.,” hut in the month of February, 1808, the firm was dissolved, the dissolution publicly advertised, and one of the partners,. Henry Von Phul, went to reside in the parish of East Baton Rouge.

In tho year 1869, notwithstanding the fact that tho firm had ceased to exist a year previously, it was assessed by the city of New Orleans as having a capital of 830,000, and a tax imposed on it of 8712 50. In 5870, tho name of the late firm was advertised in the list of delinquents, and on November 31, 1870, judgment was obtained in tho court a qiia in favor of the city against “H. Von Phul, Jr. & Co.” for the amount of the tax. In January, 1871, this suit was instituted to annul this judgment, and having been decided in favor of plaintiffs in nullity, tho city has appealed.

We can not agree with the counsel of the appellant that the rulo laid down in the cases of State v. S. S. Co., 13 An. 497, and New Orleans v. Hall, 21 An. 438, apply to such a case as this. In each of those «ases there was a person in being- at the time the assessment was made, who, it was held, was bound to watch the assessment, and have any errors corrected in the proper mode. But in this instance the juridical person on whom this tax was assessed had ceased to exist more than a year prior to the making- of the assessment, and the proper notice had been given of this fact; and it would surely be carrying the doctrine of acquiescence too far to say that the persons who had composed this firm, were still bound year after year, though perhaps resident elsewhere, to scrutinize the assessment roll under the penalty of being •eoncluded by its recitals. If a tax could be saddled, in the method claimed, on a firm which had ceased to exist a year prior to its imposition, why not on one which had ceased to exist ten or fifty years before ?

We are of opinion that the plaintiffs have a legal interest to annul this judgment for taxes since it might be sought to bo used against them and that the court a qua did not err.

Judgment affirmed.


author: Taliaferro, J.

text:
    No. 3711.
    John M. Corse v. C. F. L. Stafford et al.
    In seizing real estate under execution, tlie sheriff must take actual corporeal possession of the property seized, otherwise a petitory action to recover the same, can not he maintained by the purchaser at sheriff’s sale. 22 An. 207; 23 An. 512.
    from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      T. O. Manning and A. Seay, for plaintiff and appellant. Byan <& White, for defendant and appellee.
   Taliaferro, J.

This is a petitory action to recover a tract of land and plantation of which the plaintiff avers ownership, and which he alleges the defendants hold illegal possession of, and refuse to deliver to him.

'The suit is brought against a married woman and her husband. 'The wife answers that she holds the property under a elation en payment from her husband made in satisfaction of a judgment rendered against him in her favor for paraphernal rights and claims, and she called her husband in warranty. In answer to this call in warranty, the husband denies that the plaintiff ever acquired any title to the property in dispute, and proceeds to allege that the judgment and ■sheriff’s sale set forth as the basis of this claim or title, are null and of no effect, beoause the suit in which the judgment was rendered was dismissed by the district court on exception, and at the time the judgment was rendered, the case was on appeal to the Supreme Court, and unless by order of that court, it could not have been reinstated on the docket of the district court, because the alleged agreement by -which the plaintiff avers the property was to be delivered up to him on defendant paying ascertain debt in installments, was entirely unauthorized by him, his attorneys having entered into it without his authority. He further answers that he was never notified of the judgment, and that the sheriff never took possession of the property which he pretended to seize.

In the court below the defendants had judgment in their favor and the plaintiff prosecutes this appeal.

The plaintiff holds under title derived from Tate, who it seems bought the property in controversy at sheriff’s sale provoked by himself and Dupey, as holders of two notes of J. M. Stafford, one of the defendants, given as part of the price of the property in dispute, which was specially mortgaged to secure the payment of the notes. The proceedings generally seem not to have been conducted with exactness, and especially in reference to the seizure of the property by the sheriff under the order of siezure and sale, which we can not but regard as fatally defective. It is shown that the possession of the defendants was not divested by the act of seizure either actually or constructively, and that the sheriff never had the property under his custody; the deputy sheriff who was employed to make the seizure testified on the trial of the case. Being shown the return on the back of the execution he said: “I signed this return; don’t recollect whether I went on the plantation or not; we always do; we generally go on the plantation, read the writ to the parties, and give them a notice of seizure; after reading the writ and giving the notice, we come home; that is the only seizure we make, as a general thing, where it is land; I don’t recollect ever taking a further possession than this in the case; I say this from the general mode of seizng land; I never remained on the land myself; I don’t think John De Lacy, sheriff, did; I know he did not remain on the place; J. M. Stafford has been on that place before and after that seizure, and during the seizure. Except by instructions I never place a keeper on a place; I don’t recollect that Stafford was appointed keeper. It has been so long ago I recollect-very little about it. When we put a keeper on property we always state so in the returns.”

Under the sheriff’s sale we think the plaintiff did not acquire title because it was never taken into the possession of the sheriff, and, therefore, that he can not maintain his petitory action.

It has been frequently decided that a sheriff’s sale without a valid seizure confers no title. 11 An. 761; 12 An. 275: 19 An. 58; 22 An. 207; 23 An. 512.

It is therefore ordered that the judgment of the district court be affirmed with costs.


author: Wyi/y, J.

text:
    No. 3815
    Desiree Hickman, Executrix, v. Amos B. Thompson.
    A surviving widow lias tho right to mortgage her half of tho estate of her husband after tho community is dissolved by his death, and the mortgagee has the right to -enforce such mortgage, although the estate has not been finally settled, and tlio rights of the community have not been fully ascertained. In such a case the wife who is the executor of the estate can not, in her individual capacity, maintain an injunction to stay tlie sale of her interest in tho community thus mortgaged, on the allegation, without proof, that the estate is largely indebted for which the community is bound.
    from the Ninth Judicial District Court, parish, of Rapides. Orsborn, J.
    iff. Byan and J. G. White, for plaintiff and appellee. J. B, Bowman, for defendant and appellant.
   Wyi/y, J.

The plaintiff as executrix of the will of her late husband, Peter T. Hickman, injoins the foreclosure of tho mortgage which she in her individual capacity granted to the transferrer of the defendant on her undivided half of the community property described in the petition, alleging that said property belongs to tho succession of her said husband which has never been closed; that large claims have been preferred against it, and that the mortgage which she granted'is void because of vagueness in tho decription of tho property. The answer admits that tlio defendant sued out the order of seizure and sale to collect tho mortgage notes for 89000 executed in 1867 by the plaintiff, in her individual capacity,.on her half of tlie community property, and avers that the pretended administration of said property, as belonging to the succession of Peter T. Hickman, is a mere pretext to shield the property of tho plaintiff from her creditors; that the plaintiff herself has long since disregarded it, she and the heirs having used it as their own. Changing the executory proceeding to an ordinary action, the defendant prays judgment for $9000 on the notes and that the mortgage given to secure them be recognized and enforced on the property therein described. The court perpetuated the injunction and rejected the demand of the defendant and he has appealed.

We think the court'erred. Mrs. Hickman, after the dissolution of the community, had the undoubted right to alleviate or mortgage her half of the property. She chose to mortgage it to secure the notes held by the defendant. She failed to pay the notes and tlie defendant seeks to foreclose the mortgage. Why can he not do so? Why can not a mortgage creditor make the forced sale of such property as his debtor might convey by a conventional sale ? We see no reason why the interest of the plaintiff in tlie property mortgaged may not be sold by her creditor.

The executrix lias been in office over five years and no claims seem to have been established against the succession of her husband. It is further shown that she has received $ 50,000 for cotton remaining after the death of her husband. No tableau or account has ever been filed. From the evidence we are satisfied that the defense that largo claims are preferred against the succession, is a mere pretext to shield her half of the community property from the just pursuit of her creditors.

The description of the property is sufficient. Let the judgment appealed from he annulled, and let there he judgment for tho defendant for nine thousand dollars with eight por cent, per annum interest thereon from tho seventeenth December, 1867, and all costs, and let tlio mortgage be recognized and enforced on the property described in tho act of mortgage, and let the same be sold according to law to pay the amount of this judgment.


text:
    No. 2522.
    M. Grivot v. The Louisiana State Bank.
    In this caso tbe evidence shows that tho plaintiff had moneys deposited in tho Louisiana State Bank to his credit in 1863; that the plaintiff left New Orleans and wont into tho rebellion soon thereafter. That by a military order issued by General Banks, tbon in command of tho military forces of the United States at Now Orleans, plaintiff’s moneys were soiaed in the hands of tho bank and paid over into the hands of tho quartermaster of tho army. Held — That the bank having yielded to a power that it could not resist, in paying over tho money of plaintiff to the military authorities, the plaintiff could not require it to make good tho loss ho had sustained thereby.
    Appeal from the Fourth District Court, parish of Orleans. Theard, J.

      M. Grivoi, in proper person, appellant. IS. Pierson, for defendant and appellee.
   Taliaferro, J.

This suit is brought for an alleged balance in bank to the plaintiff’s credit on the twenty-fifth of April 1862.

1'he answer denies the material allegations, and avers that the bank was compelled by a military order of General Banks to surrender and deliver np to the military authority of tho United States all the funds and money in bank belonging to the plaintiff at the time set forth in plaintiff’s petition. That at the time the said military order was issued the city of New Orleans, the domicile of defendant, was entirely controlled and governed by martial law, and the authority of the civil government of the State of Louisiana, in the city of New Orleans, wholly suspended.

There was judgment in the court a qua against the plaintiff rejecting his claim and he lias appealed.

The plaintiff contends that the military order under which the defendant pretended to act was general in its character, and did not direct specially the seizure of his funds. That the order left it with the quartermaster and the bank to determine whoso funds were subject to it. That no special order to seize plaintiff’s funds by name or description being produced it was necessary that defendant should show that plaintiff came within all or either of the categories specified in the military order or in the letter of General Banks explanatory thereof. This military order of the commanding general and his letter to the quartermaster are in evidence. The letter, after detailing the proceedings to be taken in regard to seizures of funds in banks belonging to registered enemies of the United States, officers or soldiers in service of the rebel army, adds : “The balances of persons who left the city upon its occupation by the Union troops and have not returned or have not renewed their allegiance, and whom we have reason to suppose to be actively identified with the rebellion, will be held also by the Government subject to any just claims that may be made ■against them.”

The defendant, it is shown, paid over to the quartermaster, under this general order and explanatory letter of General Banks, the moneys ■deposited in plaintiff’s name in the Louisiana State Bank.

The plaintiff admitted that the United States proceeded in the year 1863 to libel his property, under the act of Congress of the twenty-ninth of July, 1862, entitled “ An Act relative to insurrection in the Southern States.” He also admitted that he left the city of New Orleans on the twenty-fifth of April, 1862, when the Union fleet arrived there, and did not'return to the city until after the surrender of General E. K. Smith, commanding Mississippi Department C. S. in May or June, 1865.

From the whole tenor of the evidence we do not see that the plaintiff has any just right to coerce the bank to make good to him a loss which it is clearly shown it was out of its power to prevent.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs.


text:
    No. 3120.
    Vernon K. Stevenson v. Mrs. Lavinia Edwards et al.
    In matters of appeal ilie law does not authorize, the appointment of a curator ad hoc upon whom citation of appeal may be served. In. such a case, if the appellee is not present service of appeal may bo made upon the advocate or attorney of record, but it cannot be made legally upon a curator ad hoc appointed for that purpose.
    from the Fifth Judicial District Court, parish of Iberville. Posey, J.

      Hace, Foster c6 F. T..Merrick, for plaintiff and appellant Lea, Finney & Miller, for appellees.
   Howe, J.

The judgment in this case was rendered in September, 1866. On tbe eleventh April, 1870, Mrs. M. D. Edwards, joined by her husband, James Wilson, prayed for and obtained tbe appeal now before us on tbe ground that sbe was a minor when the judgment was rendered, and bad been emancipated by marriage on tbe fifteenth April, 1869, that is, within a year prior to her application. She specially prayed that the plaintiff, Stevenson, a resident of New York, be made a party appellee, and that an attorney ad hoc ” be appointed to represent him, and to receive citation, and the judge appointed G-. W. Wailes, Esq., “ curator ad hoc” for this purpose.

A motion having been made to dismiss the appeal — it must be dismissed for this grave irregularity (21 An. 4C5, 157) — unless the fault should be deemed not attributable to appellants. We must think the •appellants in fault, since, instead of asking for citation to be served •on the advocates of plaintiff, or leaving such service to be made as matter of course, they specially prayed for the appointment of a representative not recognized by law. Another objection to permitting citation to be now issued and served on the proper parties, is, that «bout three years have elapsed since the emancipation of the minor.

Appeal dismissed.


author: W XL y, J.

text:
    No. 2438.
    Christopher De Harde, Master of the ship Constantia, v. Bark Magdalena, Master and Owners.
    'The State courts can not enforoe an admiralty lieu given by law for tho recovery of damages for a marítimo tort; and on attachment will not lie where the claim is for damages ecc delicto. 22 An. 388.
    A master in command of a vessel is not liable for the damages which his vessel has done to another by a collision if he was not on hoard of his vessel at the time of tho collision.
    from the Seventh District Court, parish of Orleans. Col-lens, J.

      JB. W. Huntington, for plaintiff and appellee. Hays & Hew, for defendants and appellants.
   W XL y, J.

The plaintiff sues the bark Magdalena, master and owners, for the damage done his ship, the Constantia, by a collision between it and the hark Magdalena. Citation was only served on the master; tho owners are therefore not before the court. The bark was .attacked and subsequently released on bond.

The defense is the general denial and the averment that at the time •of the collision the bark was under the control of the Harbormaster •of New Orleans, and that the damage was not occasioned by any fault, negligence or unskillfulness on the part of the officers or crew. The court rejected plaintiff’s demand and he has appealed.

The collision, it seems, occurred while the Constantia was lying at the levee, in this city, a short distance astern the Magdalena. The harbormaster began to move the Magdalena to another position when her head line parted, and her bow swinging around came in collision witli the Constantia, causing the damage complained of. This case is •similar to that of Young v. The Princess Royal, 22 An. 388, upon which the defendant relies. As was said in that case, we will remark that the State courts can not enforce an admiralty lien given by law for the recovery of damages for a maritime tort; and an attachment will not lie where the claim is for damages ex delicto.

But it was perfectly competent for the plaintiff to institute a personal action against the master and owners for whatever damage he may have suffered by the tort; and this suit may be so treated.

From the evidence we are satisfied that the damage occurred by the fault of the harbormaster, who commanded the vessel at the time, the master not being on board when the collision occurred. Whether the owners are responsible or not for tbe negligence or fault of the harbormaster which occasioned the collision, we can not in this case decide, because tho owners are not before the court. We have no difficulty, however, in deciding that the master is not responsible to the plaintiff for the damage, because he was not on board the vessel at the time of the collision. One agent ought not to be held responsible for the fault of another, although the principal or owner of the vessel may be responsible for the fault of either.

If the law at this place makes it the duty of the harbormaster to take personal command of the vessel in causing it to be moved from one position to another at the levee, it may be that the owner is responsible for the fault of the harbormaster, on the theory that the latter is his agent, selected for that purpose by the law, to which the owner voluntarily assented when he sent his vessel to this port. This question, as heiore remarked, can not be determined now, as the owners of the vessel are not before the court.

Judgment affirmed.

’ Rehearing refused.


author: Wvlt, J.

text:
    No. 3396.
    A. F. Dunbar v. John Steib and Joseph Kreiger.
    A moro creditor of an insolvent lias no right to claim the possession of property that has boon surrendered, nor has ho any right to demand or receive the rents of such property. In such a case the possession belongs of right to the syndic and the rents belong to tho owner.
    from the Eighth District Court, parish of Orleans. Pardea, J.

      W. B. Hyman and B. King Gutter, for plaintiff and appellee. Labatt <& Aroni, for defendants and appellants.
   Wvlt, J.

The plaintiff alleges that the defendant John Steib is attempting to take possession of the property described in the petition, which is in possession of Joseph Kaizer, an insolvent, who holds it for his creditors, of whom the petitioner is one to the amount of $2000; that the title which Steib acquired from tho syndic Kreiger is a mere simulation; and that, if Steib should get possession he and the other creditors of the insolvent will he injured. The prayer of the petition is that an injunction issue; that the pretended sale be annulled, and that the “petitioner have judgment against the said Steib for the reuts, say one thousand dollars,” and for §4.00 damages. The court dissolved the injunction with one hundred dollars damages, and the plaintiff has appealed.

The record shows that Steib sued the insolvent Kaizer, whose possession tho plaintiff seeks to maintain, for possession of the property-described in the petition on the ground that he acquired the same from the syndic of said insolvent, and there was judgment affirming the title and ordering the delivery of the property to him.

Under this state of the ease we do not see why a creditor should seek to maintain the possession of the insolvent to the property surrendered by him to the syndic and subsequently sold by the latter to the plaintiff.

A mere creditor has no right to claim the possession, because the property does not belong to him; and he can not assert for the insolvent a right which the latter could not claim for himself. The property having been surrendered its possession belongs to the syndic if there has.been no sale; but if a sale, as appears in the record, the possession belongs to the purchaser John Steib. So whether the title of Steib be valid or not, the insolvent can not be maintained in possession; and neither he nor the plaintiff has the rigid to demand it.

It is still more remarkable that the plaintiff, a mere creditor of the insolvent, should set up a claim for the rent of the property and pray judgment for $1000 against Steib who purchased it from the syndic, a sum equal to one-half the amount he alleges the insolvent owes him. The rent of property belongs to the owner thereof; and neither the plaintiff nor the insolvent pretends to be such.

Let the judgment dissolving the injunction with damages be affirmed with costs.

Rehearing refused.


text:
    No. 3744.
    Joseph Hoy & Co. v. Benjamin Weiss.
    To maintain an attachment under the allegation “that the defendant is about to aasign and dispose of his property with intent to defraud his creditors,” the evidence must show affirmatively, that tho defendant is about inoumbering or disposing of his property with tho intention of defrauding his creditors.
    Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      B. A. Hunter, for plaintiffs and appellants. M. Byan, and A. Oambat, for defendant and appellee.
   Wyly, J.

The plaintiffs appeal from the judgment dissolving tiie attachment sued out by tliem on the alleged ground that the defendant was about to mortgage, assign and dispose of his property with intent to defraud his creditors.

An examination of the evidence satisfies us that the attachment improperly issued and the court did not err in dissolving it. There is nothing to show that the defendant was about to dispose of or incumber his property with the intent of defrauding his creditors. On the-contrary, his business was going on in the usual manner and he was absent at the time endeavoring to adjust or effect an honorable settlement with his creditors.

This case is like that of Mouler & Dumestre v. Rosengarden 22 An. 531, where the attachment was dissolved because the evidence showed there was no intention to dispose of his property, on the part of the defendant, with the view to defraud his creditors.

Judgment affirmed.


text:
    No. 3842.
    Stephen K. Fowler v. Succession of J. G. Gordon.
    A final judgment of tlie parish court decreeing a partition and ordering tho heirs to he put in possession of the estate, can not he treated as an absolute nullity, nor can it be attached collaterally.
    Whore the executor has filed his final account and has been discharged, and the heirs have been put in possession the creditors of tho estate are entitled to recover from each heir his virile share of the debt of his ancestor, and each one of the heirs may be made parties to such a suit.
    Appeal from tho Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      T. P. Farrar and Mace, Foster & F. T. Merrick, for appellants. Aroni, Mayo <& Spencer and F. P. Clinton, for defendants and appellees.
   Wyly, J.

While this suit was pending to enforce a claim against the succession of J. G. Gordon, the heirs were put in possession of the property under a judicial partition, and the executor rendered his final account, which was duly homologated, and he was discharged from the administration of the estate.

After this, the executor excepted to the further prosecution of the suit against him. The court sustained the exception abating the suit as to the executor, but reserving the right of the plaintiff to make the heirs parties defendant. From this judgment the plaintiff appeals.

' Article 1012 Revised Code declares that, “ in obtaining possession of the effects of a succession, the heirs shall not be permitted, under any pretense whatsoever, to have an actual delivery of any property of such succession which may be in suit, or to receive any money of such succession when there shall be claims thereon pending in court, unless they previously give bond with good and sufficient security, if the plaintiffs in such suits require it.” * ' * * * *

Article 1671 Revised Code declares that, “ the heirs can, at any time, take the seizin from the testamentary executor on offering him a sum sufficient to pay the movable legacies, and on complying with the requirements of article 1012.”

In the case before us there were no movable legacies and the plaintiff in the suit did not require the bond contemplated by article 1012.

The heirs had therefore the right to demand the seizin of the property from the executor, and he had no right to refuse it.

If the plaintiff in this suit, which was pending, did not require the bond, the heirs were not bound to give it. By accepting the succession and going into x>ossession each heir became indebted to the creditor of his ancestor for his virile share of the debt. By this partition the plaintiff is not remediless. He can make the heirs parties defendant and recover judgment against them jointly for whatever sum that may be found to be due him by their ancestor.

The judgment of the parish court, decreeing the partition and ordering the heirs to be put in possession of the property, can not be treated as an absolute nullity, nor can it be attacked collaterally. And the same remark is applicable to the judgment homologating the account of the executor and discharging him.

Judgment affirmed.


author: Hoave, J.

text:
    No. 3818.
    J. M. Wells v. O. K. Hawley, Administrator.
    A cbiim for overseer’s wages is prescribed by three years. A contract by which one person assumes to act as mandatory for another is from its nature gratuitous, and if the contract stipulates no compensation then the mandatary can not recover. R. C. C. 2991.
    Appeal from the Ninth Judicial District Court, parish of Rapides.. Orsborn, J.

      B. J. Bowman, for plaintiff and appellant. B. A. Hunter, for defendant and appellee.
   Hoave, J.

The plaintiff claimed the sum of $8540 irom the defendant as the administrator of S. D. Linton for services alleged to have been rendered by him as agent to manage and care for the plantation of Linton in the parish of Rapides from August, 1803, to January, 1867.

An intervention in the case Avas dismissed and the intervenor has not appealed. ■

The defense before us is the general denial and a plea of prescription of two, three and five years. There was judgment rejecting the claim of plaintiff and lie has appealed. We see no error in the judgment. The services of plaintiff appear to have been of a two-fold character; as overseer in 1863 in ginning certain cotton, and as agent in caring for the place at the request of Perkins, the agent of Linton. The testimony is vague and unsatisfactory. So far as the claim is for overseeing, it is prescribed by three years. Rev. C. C. 3538. So far as the claim is for compensation as mandatary, the writteu appointment fixes-none, and the contract is by its nature gratuitous. Rev. C. C. 2991. We find nothing in the e\'idence that is sufficient to rebut the presumption thus established by law that the services of plaintiff, a neighbor of Linton, were performed merely as an act of neighborly-kindness. 21 An. 553, Wood v. McCranie.

Judgment affirmed.


text:
    No. 3423.
    Louis Cavalier v. Police Jury, Right Bank, Parish of Jefferson.
    The exception that the petition discloses no causo of action, admits for the purposes of its trial, that the allegations in the petition are true, and if the allegations disclose a cause of action the exception will he overruled.
    Appeal from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      B. L. Preston, for plaintiff and appellant. J. Fislc, Parish Attorney, for defendants.
   Wyly, J.

The plaintiff sues the Police Jury of the parish of Jefferson for $ 3535 36, the value of a levee which he alleges he was ordered to build by said police jury in 1867, and which work was accepted by it, after the completion thereof. The court dismissed the demand on the plea that the petition discloses no cause of action against the defendant.

We think the court erred. This exception admits the allegations of the petition to be true. We think the petition discloses a. good cause of action. If the police jury ordered the plaintiff to do the work, as is conceded in the defendant’s brief, it is certainly bound to pay him a fair remuneration therefor after accepting the work. This case falls within the rule stated in Kennard v. Lafarge, president of the police jury, parish of Avoyelles. 23 An. 168.

It is therefore ordered that the judgment appealed from be annulled, that the peremptory exception be overruled, and that this cause be remanded to be proceeded with according to law, appellee paying costs of appeal.


text:
    No. 3782.
    Bush & Thomson v. E. F. Dewing.
    A defendant in a sequestration suit who appears by petition, and asks to bond the property sequestered and take it from the possession of the court, is concluded from urging tho plea of want of citation. 21 An. 438; 22 An. 368.
    Appeal from the Fifth Judicial District Court, paiish of Iberville. Posey, J.

      Barrow & Pope, for plaintiffs and appellees. A. & F. Talbot, for defendant and appellant.
   Howe, J.

The defendant has appealed from a judgment made final ■after default, and makes the point that he was never legally cited. The return does not show a citation technically regular, but the record reveals the fact that after the sequestration and the service of citation, such as it was, the defendant came into court by a petition, alleged that this suit was “pending” against him, availed himself of the privilege of a defendant to bond the property and take it from possession of the court, and prayed for general relief. We do not think that -after such an appearance ho can be heard to say that he was not regularly cited. 21 An. 438 ; 22 An.. 368, Abbott v. Wilbur.

Judgment affirmed.


text:
    No. 3728.
    Mary Ann Wells and Husband v. The Citizens’ Bank of Louisiana.
    By tbo provisions of the charter of the Citizen’s Bank of Louisiana a married woman may become a subscriber to the capital stock of the bank, and bind herself or her property conjointly with her husband, or m solido, cede, mortgage and hypothecate her property to the bank, the same as if she wore a, feme sole.
    A suit is institued by the wife to annul a salo of hor property mortgaged to the hank under this charter, on the allegation that the loan from the bank inured to the benefit of the husband. Hold — That under the provisions of the charter the wife as a subscriber to the capital stock of the bank was authorized to mortgage and hypothecate lier separate property to the bank, and that a sale regularly made to enforce the mortgage rights upon her property thus mortgaged was not null because the hank had not shown that the loan iivurod to her separate benefit.
    Appeal from the Ninth Judicial District Court, parish of Grant. Orsborn, J.

      W. B. Hyman and B. J. Bowman, for plaintiffs and appellees. Byan & White, for defendant and appellant.
   This case was tried by a jury in the court below.

Howe, J.

In 1859 the plaintiff, separate in property from her husband, became a stockholder of the Citizens’ Bank, and to secure her stock note and loan, mortgaged hqr plantation, which was paraphernal property. Her husband authorized the transaction.

In May 1870 the property was sold at sheriff’s sale under an order of seizure and sale sued out by the bank, and the hank became the purchaser. In November, 1870, Mrs. Wells instituted this action to annul the sale, reciting various alleged irregularities and nullities. The bank answered by a general denial. The cause was tried before a jury who rendered a general verdict for plaintiff, and judgment having been rendered thereon accordingly, annulling the sale, the bank has appealed.

Among the many points made by plaintiff on her pleadings we find but two which seem to be insisted on as meriting discussion :

First — It is alleged by plaintiff, in her supplemental petition, that “ the pretended purchase of stock by petitioner and the pretended loan made upon, said stock to petitioner were the purchase and transactions of her husband; and the said pretended purchase and loan never inured to her benefit; hut were the speculations and acts of her said husband.” She further alleged that the mortgage was made under marital influence and did not come under the provisions of the twenty-fifth section of the charter of the hank.

Admitting that the question thus raised can be examined in an action to examine a sale, we can not assent to the correctness of the views of the plaintiff on this point. By the third section of the charter of the bank it is provided that it shall he competent for all persons who shall be in good faith the owners and possessors of real property within this State and to all bodies corporate and politic authorized and empowered thereto in law, to become'subscribers to the capital stock of said bank under the rules and regulations established by this act.” Acts of 1833, p. 174. By the eleventh section each stockholder shall be entitled to a credit equal to one-half the total amount of his stock.”

By the twenty-fifth section it is provided that “in all contracts or mortgages entered into by any person or persons with the said corporation for any of the purposes mentioned in this act, if any such person or persons should be married, it shall be lawful for the wife or wives of such person or persons to join in the said contract and to bind themselves conjointly and in solido with their husbands, and to renounce, cede, mortgage and hypothecate her rights, privileges, or property, as well dotal as of any other nature or kind whatever.”

We think it clear that the effect of these provisions is to render the obligation of the plaintiff perfectly valid. She had a right to become a stockholder; as a stockholder she had a right to a loan ; and by the-twenty-fifth section the disabilities imposed by art. 2412 of the Code of 1825 were removed.

If the transaction was what it purported tobe, a subscription by her, a loan to her, and a mortgage to secure the same, then she was clearly bound, like any other sane person of full age. If, on the contrary, it was by connivance between her and her husband in reality a subscription by him, and a loan to him, then she-was bound under the twenty-fifth section. To decide otherwise would be to defeat the object of the charters of the property banks as explained by this court in Bank v. Farrar, 1 An. 55. Or, to look at the question from another standpoint, under the regime established by the sixty-first law of Toro- and continued by art. 2412 of the Code of 1825, and by the decisions thereunder, the mere allegation by a married woman that the debt upon which she was sued did not inure to her separate benefit, threw on the creditor the burden of proving that it had so inured. But by the provisions quoted, as expounded in the case of Bank v. Farrar, the defendant in this action is not subject to this rule. That onus is not on the Citizens’ Bank as respects the contracts of stock subscription, loan and mortgage. Since then the plaintiff has merely alleged that these transactions were speculations of her husband, but has not offered a particle of proof to support her allegations, her case on this point must necessarily fail.

Second — The plaintiff also relied on the plea of prescription of five years as against the claim which was enforced by the sale under the executory process. We do not think that the plea of prescription can be urged at this time and in this form, even if it ever had any foundation in the facts of the case. The executory proceedings were regular in lorm, the sale was made, the plaintiff did not attempt to injoin it on the ground that tho debt had been extinguished by prescription, sis she might have done without bond under C. P. 739, 740. We imagine it is too late now to attempt to annul a judicial sale on tho ground that the debt upon which the order of seizure and sale was granted was proscribed.

On the whole we find ho foundation for the verdict of the jury. It is therefore ordered that the judgment appealed from be avoided and reversed, and the verdict set aside. It is further ordered that there be judgment in favor of defendant with costs in both courts.


author: Ludeling, C. J.

text:
    No. 3825.
    In the matter of the Succession of John L. Pointer. Opposition to Executor’s Account.
    A person can not claim to be placed upon tlio tableau as a legatee of the testator under the -will, if it lias been decided that his claim is simulated and fictitious.
    Appeal from the Parish Court, parish of Iberville. Aclowis Pitot, Parish Judge.

      Samuel Mathews, for executor. A. & M. Yoorhies, for defendant.
   Ludeling, C. J.

This is an opposition on the part of Mrs. Maria Schwing, the universal legatee of John L. Pointer, to the account of tho executor admitting Antoine P. Marionneaux as an unconditional legatee under the will.

In 1869 John L. Pointer died, leaving a will whereby he directed that Ms executor should pay over to Antoine P. Marionneaux whatever amount should ho realized from certain suits then pending in tho Sixth District Court of New Orleans.

Tho universal legatee opposes the delivery of the proceeds of that litigation, now in the possession of the executor, to Marionneaux until, he produces and cancels a note given by the testator to Marionneaux to represent said proceeds, and then only the net proceeds after deducting attorney’s fees, etc., paid by the testator, as the testamentary disposition was made under the following circumstances :

In 1865, Marionneaux, being pressed by bis creditors, transferred by a simulated title two-tliirds of a steamboat, named the “Fanny Fisk,” to Pointer, which was subsequently insured by Pointer in the Merchants’ Mutual Insurance Company of New Orleans, and lost in the waters of Mexico while under the control of Marionneaux. The Company refusing to pay the insurance, Pointer instituted suit and obtained a judgment for the same in the Sixth District Court of New Orleans, which was affirmed by the Supreme Court. At this juncture, Marionneaux’s creditors seized that judgment. Pointer injoined the seizure on the ground that the judgment was wholly his property, and the creditors in answer alleged that the sale of tho “ Fanny Fisk” was simulated, and the judgment was the property of their debtor. About the fifteenth of December, 1868, this litigation was compromised, and Pointer, with the sanation of Marionneaux, gave one-half the judgment, which was about eight thousand dollars, to the creditors, and all the judgment creditors of Marionneaux who could have been injured by said simulation were satisfied. That on the fifteenth of December, 1868, after this compromise, Pointer executed his note or due bill in favor of Marionneaux to represent said amount as coming to Pointer by this compromise, and as the petitioners believe took a counter letter from Marionneaux.

Having decided in the suit of Lewis E. Woods v. Succession oí John L. Pointer No. 3852, that the note sued on (and which is the same referred to on the opposition), was without any consideration, the sale of the Fanny Fisk having been a simulation, it is unnecessary in this case to pass upon the various questions discussed in the brief and raised by the bills of exceptions.

The judge a quo sustained the opposition. We see no error in the decree.

It is therefore ordered and adjudged that the judgment of the lower court bo affirmed with costs of appeal.


author: Wyuy, J.

text:
    No. 3240.
    Louisiana State Bank v. David N. Barrow et al.
    In tliis case an order of appeal was granted from one branch of the judgment, but no bond was given. In the other a bond was given, but no order of appeal was granted.
    Hold — That the appeal must bo dismissed for want of jurisdiction.

      Appeal PPEAL from the Fifth Judicial District Court, parish of Iberville. Posey, S'.

      A. Talbot, for plaintiff. Barrow <& Pope, for defendants.
   Wyuy, J.

The plaintiff sues the defendant, David N. Barrow, as the indorser, and the defendant, Lavinia Edwards, as the maker of a promissory note. The court gave judgment against tiie maker, but rejected the demand against the indorser.

We find in the record an order of appeal taken by plaintiff from that part of the judgment rejecting its demand against Barrow, hut no bond seems to have been given. We find, however, an appeal bond given by the defendant, Mrs. Edwards, but there is in the record no order of appeal in her favor. We also find the agreement of counsel “that one transcript shall be made for the two appeals taken in this case.” As consent can not give jurisdiction, and as neither of the appeals has been perfected (one for want of an appeal bond, the other for want of the order of appeal), we are constrained to decline jurisdiction of the appeals.

It is therefore ordered that the appeals herein he dismissed at the costs of the appellants.

Rehearing refused.


author: Ho ave, J.

text:
    No. 2314.
    Bush & Goode v. Ewing Chapman—John B. Murison, Intervenor.
    A confession of judgment by a defendant, who is domiciled in a different parish from that in which, the judgment is rendered, is an absolute nullity as against privileged creditor!*, 23 An. 2o5, and tho privileged creditors have such an interest as will authorize them to urge tho absoluto nullity of such a judgment whenever and wherever it is sought to bo enforcod against property upon which they have a privilege.
    Appeal from the Fourth District Court, parish of Orleans. Ihéard, J.

      Louis Bush, for plaintiffs and appellants. Lacey & Butler, for intervenor .and appellee.
   Ho ave, J.

The plaintiffs obtained a judgment by confession against the defendant in the Fourth District Court of New Orleans, on the tAventy-third November, 1868. The defendant Avas at that time and had been for some years a resident of and domiciled in the parish of Terrebonne.

Execution Avas issued on the judgment and seizure made of the leases of certain plantations in tho parish of Terrebonne, and of the movables and' crops on two of them. John B. Murison intervened, claiming to haA'e a privilege for plantation supplies furnished by him on the crops, and a pledge of all the other movables, and obtained an order permitting him to bond tho property which had been seized, and this was accordingly done.

Various proceedings took place in the case, which it is not deemed necessary to detail specifically, and after trial the court a qua gave judgment in favor of the intervenor Murison, so far as tho crops of sugar and molasses were concerned, and against him as to the other movable effects which had been seized. The plaintiffs alone hav'e appealed.

We do not perceive any error in the judgment so far as plaintiffs . are concerned. Murison had a privilege on the crops seized, for supplies furnished, to the amount of about $14,000 — an amount largely in excess of the apparent value of the sugar and molasses. It appears also that on tho tAventy-seventh November, 1868, ho caused the entire property on the two plantations to be seized under a judgment for upwards of $40,000, which he had obtained in the United States Circuit Court against the defendant Chapman. It is evident that the crops seized were not equal in value to the supplies for which. Murison was a privileged creditor. It follows then that he had an interest to claim the absolute nullity of the judgment of plaintiffs, so far as the crops were sought to be seized under it. That the judgment was an absolute nullity as to Murison can not now be doubted. It was confessed in violation of the statute of 1861, now embodied in Rev. C. C. 162, See Richardson v. Hunter, 23 An. 255.

Judgment affirmed.


author: Lodeling-, C. J.

text:
    No. 2389.
    Indiana Sloan, Wife, etc., v. Stevenson & May—Louisiana State Bank called in warranty.
    A contract oí sale of a lot of cotton is complato if tlio price has heen agreed upon and possession has heen given. In such a case the sale is considered as executed, and the administrator of the estate who has made the contract will not he listened to when he comes into court and asks that it ho set aside on the ground of an illegal consideration, such as Confederate money.
    from the Fourth District Court, parish of Orleans. Théard, J.

      Race, Roster <& R. T. Merrick, for plaintiffs and appellants. Clarke á Bayne, for defendants and appellees.
   Lodeling-, C. J.

The plaintiffs sue the defendants io recover forty-three hales of cotton or the damages occasioned them by the wrongful taking of said cotton for defendants’ use.

John A. Stevenson and A. H. May, who composed the firm of Stevenson & May, filed separate answers. Stevenson filed a general denial, and admitted that the forty-three bales of cotton aforesaid had heen purchased by one Green, who transferred them to him ; that forty-one hales of said cotton were delivered to him; that both lie and Green were agents for the Louisiana State Bank; and that the said forty-one hales of cotton, having heen accidentally shipped to Stevenson & May, were delivered by them to the said bank; and he called the hank in warranty. May denies that he had anything to do with the cotton, and reiterates the other allegations of Stevenson’s answer.

The Louisiana State Bank filed an exception and answer. The exception seems to have been abandoned. In the answer it is admitted that Green and Stevenson were the agents of the hank, in the purchase of the cotton, and that Stevenson & May had delivered the cotton to the bank, the rightful owner thereof.

The evidence satisfies us that on the nineteenth of January, 1863, the administrators of the estate of Sloan, E. A. Sloan and John McLaughlin, sold to J. J. Green, agent aforesaid, forty-three hales of cotton at twelve cents per pound in Confederate treasury notes; that the cotton was weighed, paid for, and marked in the name of the purchaser, thus J. J. G.,” and that the vendors undertook to take care of the cotton and to deliver it in good order at Augusta, on the lake, at their own expense, to said Green or his order, the said vendors not incurring any risk of fire of unavoidable accidents;” that some time afterward the bagging and ropes having heen cut by Confederate soldiers, and the cotton being in had condition was taken by the agents of Green or Stevenson off the Sloan xfiantation to an adjoining plantation, where it was rehaled and carried back to the Sloan place, to be taken care of; that the bagging and rope was furnished by Stevenson, and the cotton was rehaled by bis employes. This was in January, 1865, and in consequence of a letter written by John McLaughlin to •an agent of Stevenson informing him of the condition of the cotton, and suggesting the propriety of his getting bagging and rope to have the cotton-repaired. In the letter he expressed his readiness to haul the cotton to the place agreed on whenever required to do so. Subsequently when called on for the cotton, he refused to deliver it. However, after a considerable delay he did deliver the cotton, but instead of hauling the cotton without charge, as had been stipulated in the contract, Stevenson paid Mrs. Sloan S3 25 in gold per bale for the hauling. The cotton was shipped to Stevenson & May through error; it was delivered by them to the bank, and the bank had sold the cotton long before the institution of this suit.

Under this state of facts, the administrators and the heirs sue to recover the price of the cotton, on the grounds that the contract was null for the following reasons, to wit:

It was for Confederate money, it was between alien enemies, and it was a private sale of succession property.

It is proper here to state that the suit is brought in the name of the minor heirs of Hamilton Sloan, represented by their tutrix Eliza Sloan and Indiana Sloan, in their own right and by the administrators, Eliza Sloan and John McLaughlin, and that the succession was still under administration when the suit was instituted and tried.

The evidence shows that the contract was an executed contract before the institution of this suit; nay, even before the order of General Herron had been obtained. The written contract and evidence show that the cotton was sold by the pound, that it was weighed, paid for, -and marked with the initials of the name of the buyer; and that the sellers obligated themselves to keep and take care of the property for him, and to haul it to a shipping port, whenever required to do so. McLaughlin says in the act that the cotton is “now deposited on my plantation, and I am to take due care of the same and to store it in a covered building,” etc. And Mrs. Sloan signed the same act.

“An authority to talcc, when the thing sold is ponderous and present, has all the effect of an actual delivery.” But in January, 1865, the employes of the buyer took actual possession of the cotton (with the consent of the sellers), hauled it to another place and rebaled it for the buyer; and then returned it to the custody of McLaughlin & Sloan for safe keeping. As balers and depositaries of Stevenson, McLaughlin & Sloan could not question his title. 21 An. 596.

The question of duress is not important in this case, as, in our opinion, the contract of sale had been executed long before; and therefore, to pretermit the expression of an opinion as to whether there was or was not force, violence or threats used to obtain the possession of the cotton from the depositaries.

The contract being executed, the administrators will not be listened to in a court of justice, when alleging their own turpitude ana dereliction of duty. 3 N. S. 47 ; Mulhollen v. Voorhies; 17 La. 132, Gravier’s Curator v. Carraby's Executors ; 2 Rob. 271 ; John Y. Davis v. J. H. Caldwell et al.; 1 An. 176, Davis v. Holbrok ; 17 An. 261, Smidt v. Barker.

The heirs have no right to sue for debts or damages due to the estate while it is under administration, much less have they a right to sue a third party for damages caused the succession by buying from the administrators property at private sale. Their recourse is against the administrators and their sureties. C. C. art. 1058 (1051), 12 R. 41,323 $, 10 R. 457, Succession of Ogden; C. C. art. 1048 (1041) ; C. P. 976, 997.

It is therefore ordered that the judgment appealed from be affirmed with costs.

Rehearing refused.


text:
    No. 3727.
    George J. Keller v. Matthew Vernon and Wife.
    Where an appeal in a suit by a creditor of the husband attaching tlio judgment of bis wife against him, parol evidence is held admissible to prove that tho husband received funds belonging to the wife, and tho case is remanded for tho purpose of admitting the same, it can not be excluded on the second trial, on the ground that there is written ovidenco of the fact.
    Appeal from the Seventh Judicial District Court, parish of Avoyelles. Miller, J.

      A. B: Irion, for plaintiff and appellant. Wad-dill (& Barbin, and Thomas <& Overton, for defendants and appellees.
   Wyly, J.

The plaintiff, a judgment creditor of Matthew Vernon, seeks to annul the judgment of separation of property and for $3600, obtained by his wife against him, and also to set aside the notarial act of transfer of the property by him to her in satisfaction thereof, alleging that said judgment and transfer were fraudulent and collusive, and intended to place the property of his debtor beyond the reach of creditors.

The defendant, Mrs. Vernon, pleads the general issue, avers the legality of the judgment and transfer and pleads the prescription of one, two, three, four and five years. The court gave judgment for the plaintiff, and the defendant, Mrs. Vernon, appeals. The case was before this court in February 1871; and the ruling of the court below, rejecting the evidence offered by Mrs. Vernon to prove the validity of the claim, on which was founded her judgment against her husband, was set aside and the cause remanded for the purpose of admitting the proof improperly excluded, and to be proceeded in according to law. See 23 An. 164.

At the trial on the remandment, the plaintiff again objected to the parol evidence offered to prove that the husband of the appellant received certain moneys from the estate of her mother, on the ground that the testimony of the witnesses is not the best evidence, because at the time A. R. Parks settled with her and the other heirs, a written act of settlement or partition was passed before a notary public, and that said act is the best evidence of the amount paid each of the several heirs. There is no force in this exception.

Mrs. Vernon is not seeking to prove the contents of the written instrument, nor is she engaged in a contest with her co-heirs as to the terms of the partition of the estate of her mother. She is simply endeavoring to show that her husband received certain paraphernal funds of hers, and for which she had judgment in a controversy with him.

From the evidence we have no doubt of the verity of the claim for which she had judgment against her husband. As to the objection that tho property given in payment of her judgment was worth more than the amount thereof, we will remark the allegation is not established by the evidence. The other objections are without weight.

It is therefore ordered that tho judgment appealed from be annulled, and that plaintiff’s demand be rejected, with costs of both courts. •


author: Howell, J.

text:
    No. 3681.
    Pierre Daspit v. A. Verret et als.
    An overseer who has contracted, with a planter hy the year and has boon discharged by the purchaser of tho plantation, under a mortgage, before tho year is out, cannot hold such purchaser liable for the wages due him after the date of the sale. In such a case the mortgage is superior to the overseer’s privilege which has beon acquirod after tho mortgage was given.
    Appeal from the Fifteenth Judicial District Court, parish of Terrebonne. Seattle, J.

      T. S. Goode, for plaintiff and appellee. N. H. Bightor and Legendre & Soche, for defendants and appellants.
   Howell, J.

Tho plaintiff was employed by the defendant, Verret, as overseer for the year 1871, at a fixed salary. In August of that year, A. Miltenberger & Co. caused the plantation of Verret to be sold under a pre-existing mortgage, and became the purchasers. They immediately .notified the plaintiff that he must leave, and employed another overseer. This suit was brought to recover the year’s salary from Verret and A. Miltenberger & Co., in solido, and from a judgment in favor of plaintiff A. Miltenberger & Co. have appealed.

The judgment is erroneous as to appellants. They were not parties nor privies to the contract between plaintiff and Verret, and did not become so by their purchase at the sheriff’s sale. Such a contract does not attach to nor pass with the land. The owner can not by his agreements with third persons impair the legal rights of his mortgage creditors further than specially provided by law, and one of those rights is to seize and sell the land mortgaged free of incumbrance - other than those established by law or previously created by the owner. The giving of a privilege to an overseer on the crop or its proceeds, for services rendered, does not affect the -land or the right of mort:gagees to have the land sold, and the contract of the overseer is made subject to such existing right. The authorities cited by plaintiff do not apply to this case to the extent claimed.

The counsel for appellants admit that the latter are bound for the wages of the plaintiff to the date of the sale, and fix the amount at ■$866 02.

It is therefore ordered that the judgment herein be reduced as to A. Miltenberger & Co., from $1450 to $866 02, and as thus amended it be affirmed. Costs of appeal to bo paid by plaintiff and appellee.


text:
    No. 3780.
    Sarah Woolfolk et al. v. Widow Emily Woolfolk.
    'fXbo parish court is without jurisdiction ratione materia to entertain an injunction suit to annul a judgment of another court. It is also without jurisdiction to entertain such injunction suit where the amount involved is above five hundrod dollars.
    Appeal from the Parish Court of Iborville. Edward Moore, Parish Judge.

      Samuel Mathews and Mace, Foster & E. T. Merrick, for plaintiff in partition. Fuqua <& Oallihan, J. A. Breaux and A. di; E. B. Talbot, for appellant.
   Taliaferro, J.

In this case a judgment was rendered decreeing a partition between Mrs. Emily Woolfolk and the heirs of Austin Wool-folk, deceased. The judgment directed the partition to be effected by a sale of the property to be partitioned, and an order of sale was rendered and the matters relating to the partition were referred to a ¿notary. Pending the proceedings in partition certain parties alleging themselves to be judgment creditors of Mrs. Emily Woolfolk in large amounts applied to the parish court of Iberville for au injunction to stay tho proceedings in partition, alleging that it was gotten up in fraud of their rights as creditors and for the purpose of defeating their pursuit of Mrs. Woolfolk’s share and interest in the property which was at the time of the decree of partition, and had been long before -under seizure by the sheriff and advertised for sale In virtue of executions issued on their judgments. They prayed in their injunction suit that the judgment decreeing the partition he annulled, that the order of sale be rescinded, that in the event the judgment decreeing partition ho maintained that their judicial mortgage be recognized and enforced as superior to any other mortgage on the property, that the plaintiffs in partition be decreed to have no mortgage on the propertju that their injunction he maintained, and that they recover $500 damages.

On the part of. the plaintiffs in the partition suit a peremptory exception was taken to the injunction proceedings on the following grounds:

First — That the amounts in controversy are largely in excess of the jurisdiction; the plaintiffs in injunction founding their demand on a .judgment and judicial mortgage for $13,790, exclusive of interest against Mrs. Emily Woolfolk, the defendants in injunction being also creditors of Mrs. Woolfolk for more than $39,000, which is denied by the plaintiffs; and the property to be partitioned being shown by the inventory to be in value exceeding $80,000.

Second — That the plaintiffs pray the court to annul its decree of partition of the property of the succession of Austin Woolfolk, while they are neither heirs nor creditors of that succession, but strangers to it, neither having nor alleging that they have any interest therein.

Third — By praying the court to annul a decree of partition, rendered in this case, the plaintiffs indirectly pray the court to annul a judgment of the Fifth Judicial District Court, rendered in the suit of the Heirs of Austin Woolfolk v. Widow Emily Woolfolk, which has been recognized by the parish court of Iberville in its decree of partition, this court having no jurisdiction to annul that judgment of the district court, either directly or indirectly.

On trial of these exceptions the parish court decided that it is without jurisdiction over the matters set up in the injunction suit, and dissolved the injunction, from which judgment the plaintiffs in injunction have brought this appeal.

The litigation between these various parties seems to be jn'otracled ■and to have spread out into different channels. The creditors, the administrator of Millo and Edward Durrive, representatives of the former firm of Degelos, Durrive & Co., it appears, obtained judgments, one for about thirteen thousand dollars, the other for about five thous-sand dollars, as early as 1860, against Mrs. Woolfolk. A seizure of her property was made under execution issued on one of these judgments in July, 1869. Against this seizure Mrs. Woolfolk took out an injunction on the ground that tho judgment under which execution issued against her had been novated, and this forms the subject of a separate suit now before this court on appeal.

In August, 1867, the heirs of Austin Woolfolk obtained a judgment in. the District Court of Iberville against Mrs. Emily Woolfolk for $39,877, with legal mortgage on her property, to date and take effect from February, 1847. It is this judgment which the creditors, by the injunction suit now before us, are aiming indirectly to annul so far as it decrees legal mortgage against their alleged debtor Mrs. Woolfolk, which, if recognized still to exist, would antedate their own judicial mortgage. We think tho parish court without jurisdiction over the matters involved in this injunction suit, and that the court a qua properly so decided.

It is therefore ordered that the judgment of the parish court be affirmed with costs.


text:
    No. 3852.
    Louis E. Woods v. Gervais Schlater, Executor.
    In a suit "by the holder of a promissory note against the executor o£ the maker, the latter has the right to shew in defense that the note was given without any consideration, and that the contract for which it was given 'was a simulation. In this case the evideneo shows that the note was given for the sale of two-thirds of the steamer Eanny Eisk, and that there was in reality no sal© of the Eanny Eisk, "but that it was a mére simulation.
    Held — That the plaintiff the holder of the note, could not recover from the estate of the maker of the note, because there was no valid consideration given for the note.
    Appeal from the Fifth Judicial District Court, parish of Iberville, Posey, J.

      A. & JE. D. Talbot, for plaintiff. ¡Samuel Mathews, for defendant. David W. Parroio, for intervenor.
   Taliaferro, J.

In this case the executor of John L. Pointer, deceased, is sued on a promissory note for $8000 in favor of A. P. Marionneaux, or order, drawn by John L. Pointer, on the fifteenth of December, 1868, and made payable on demand. The plaintiff alleges-that he is the bona fide owner and holder of the note under theindorsement of A. P. Marionneaux, the payee. The defendant specially denies that there ever was any consideration received for the note sued on; avers that it was pretended to be given for a two-thirds ownership of a certain steamer called the “ Fanny Fisk,” pretended to have been sold by Marionneaux to Pointer, but that there was really no sale; it being a mere simulation, an act done to secure Marionneaux’s property from the pursuit of his creditors. He alleges that this suit, is a plan concerted by plaintiff and A. P. Marionneaux to obtain money under false pretenses from the estate of John L. Pointer.

Judgment was rendered in favor of the plaintiff for the amount of the note and interest, and the defendant has appealed.

Pointer was the son-in-law of Marionneaux. The latter at the time of the sale of the steamer was utterly insolvent; there were many judgments against him about the time of his transfer to his son-in-law of two-thirds of the steamer. It appears that the sale was made for the consideration, as expressed in the act of sale, of $24,000 cash in hand paid, but proof was made that notes were given for the payment of the price. Pointer insured the two-thirds interest in the steamer, which was subsequently lost on the Rio Grande, where Marionneaux was running her. Pointer sued the insurance company and recovered on the policy, in a suit in the Sixth District Court of New Orleans. Pending an appeal to this court, taken by the insurance company, Pointer died. In his will lie disposes of his whole estate, even to the minutia of his watch and chain. A clause of the will is then introduced by which he instructs Ms executor as follows: “ And in case the suit entitled Merchants’ Mutual Insurance Company v. John L. Pointer, now pending in the Sixth District Court of New Orleans, should be decided in my favor, whatever amount may be coming to me therefrom I instruct my executor to pay oyer to Antoine P. Marionneaux, my father-in-law.” After judgment in his favor in the district court, four or five of the judgment creditors of Marionneaux severally seized under executions this judgment as really the property of their debtor, Marionneaux, treating the sale of his share of the Fanny Fisk as a mere simulation. Pointer intervened in these various suits, claiming the ownership of the judgment. The genuineness of his right was not however tested by judicial decree, for a compromise was made with tho seizing creditors by giving them $9000, half the amount of tho judgment. It is shown that after the loss of the steamer on the Rio Grande, Pointer declared to various persons that it was no loss of his; that he had no interest in the Fanny Fisk

It is shown that Pointer rvas scarcely of the age of majority when he entered into this matter of purchasing the share and interest of his father-in-law; that he was without means or facilities of any kind to pay so large an amount of money, and that he exercised no control over the boat after he bought her.

From the entire evidence, which is quite voluminous, wo conclude that Pointer in the whole of the transactions relating to the Fanny Fisk” was used to subserve tho purposes of his father-in-law, who performs no creditable part in this litigation. We are satisfied from the evidence that the note sued on is without consideration and void, and to compel the executor to pay it would be against law and equity.

It is therefore ordered, adjudged and decreed that the judgment of tho district court be annulled, avoided and reversed. It is further ordered that there be judgment in favor of the defendant, the plaintiff and appellee paying costs in both courts.


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    No. 3816.
    Thomas B. French, Under Tutor v. A. B. Thompson.
    1 The under tutor can not maintain an injunction to stay the foreclosure of a mortgage granted by the surviving widow (the mother of the minors) on her half of the community property, because ho is not the representative of tho creditors, nor is he the representative of the residuary interest of the widow in community.
    Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      J. G. White, for plaintiff and appellee. li. J. Bowman,

    for defendant and appellant.
   Wyly, J.

Tho plaintiff as under tutor of the minor heirs of Peter ' T. Hickman, deceased, injoined the foreclosure of the mortgage granted by the surviving widow (the mother of the minors) on her half of the community property, described in the petition. The court perpetuated the injunction, and the defendant appeals.

We fail to perceive any interest the plaintiff has to injoin the sale •of the property mortgaged by the mother of the minors, it being her half of the community property. Whether her residuary interest i.u. the community heretofore existing between her and the late Peter T. Hickman, the father of the minors, is susceptible of mortgage or not, on account of existing debts of the community, is a question in which the minor heirs of Hickman, represented by the plaintiff, are not concerned. The under tutor is not the legal representative of creditors, nor is he charged with the supervision of the residuary interest of the widow in community.

Let the judgment appealed from be annulled, and let the injunction herein be dissolved with costs. It is further ordered that the defendant recover judgment in solido against the plaintiff and his securities on the injunction bond for five hundred dollars damages.


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    No. 2666.
    C. E. Girardey & Co. v. H. L. Stone.
    Aii auctioneer who has property for sale can. not recover commissions from the owner unless he has sold it, although the ownor may have sold it at private salo before the day on which it was advertised for sale by the auctioneer. He is however entitled to recover from the ownor in such a caso, any oxpenso which he may have incurred in advertising, maldDg maps, etc.
    Appeal from the Fourth District Court, parish of Orleans. Theard, J.

      Breaux & Fenner, for plaintiffs and appellees, li. (& JET. Marr, for defendant and appellant.
   Ludeling, C. J.

H. L. Stone instructed Girardey & Co., auctioneers, to advertise certain property for sale, which they did. Before the day of salo Stone sold the property at private sale, and the plaintiffs sue to recover their commissions on the sale, and the expenses incurred by them in making the advertisement and having plots of the property made, etc.

The auctioneer is simply the agent of the owner, who has the right to withdraw his property from sale at any time beforo its completion. 13 La. 270. The reward of the auctioneer is a commission on sales made by him. R. Statutes p. 37, sec. 160. Auctioneers are not brokers, and the decisions relating to the latter can not be regarded as applicable to the former. But the cases in 3 An. 671, and 6 An. 26, are not applicable for another reason, to wit: nothing in this record shows that the auctioneers found the jiurchaser, and brought him and the seller together.

DeFerriet and Girardoy testify in substance that when property is put in their hands for sale and they advertise it, that they have the exclusive control of its sale up to the day of sale; and that if it be sold before, they have a right to the commissions.

That is their opinion, which, however, does not fix the liabilities of any one.

They have a right to make such terms with their patrons, but they must prove the contracts when made. The law does not authorize them in the absence of a contract to trnake a charge for commissions-unless they effect a sale at public auction.

No custom has been proved in this case, and therefore no implied contract can be inferred.

The plaintiffs have incurred expenses in advertising the property and having maps of the lots made; for this they are entitled to bo reimbursed.

It is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgment in iavor of the plaintiffs against the defendant for the sum of one hundred’ and ninety-six dollars and fifty cents, with five per centum per annum interest from judicial demand and costs of the lower court; the costs of appeal to-be paid by the appellee.


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    No. 3641.
    John T. Michel v. Milton Benner et al.
    Execution may issue against one of several debtors condemned in solido to pay the same debt, without issuing it against the others, at the option oí the judgment creditor.
    from the Second Judicial District Court, parish of Jefferson. Pardee, J.
    _B. King Cutler, for plaintiff and appellee. J. K. JBriókell, for defendants and appellants.
   Taliaferro, J.

The defendants, Benner and Randlet, having-obtained judgment in solido against the plaintiff and P. Gallagher, caused an execution to issue against Michel alone, and he injoined the writ on several grounds. First — That the execution was issued against him alone, whilst it should have included Gallagher. Second — That some errors had been committed in regard to the names of the parties both in the writ and notice of seizure. Third — That the Second Judicial District Court had no jurisdiction of the matter and was without authority to issue the execution.

The judge a quo perpetuated the injunction on the first grounds taken'and the defendants have appealed. The question presented is, can a writ of fieri facias be issued against one only of several debtors, condemned in solido for the same debt?

We are not able to concur with the judge a quo in the view taken by him of this question. His judgment is predicated upon the case of Casson v. Cureton, 12 Martin 436, and that of Blanchard v. Zacharie, 15 La. 541. In the first of these cases the question vías whether a joint execution which had issued against two defendants being returned nulla bona as to one, and proceedings stayed by order of plaintiff as to the other, a separate capias can issue against him whose property can be found? The court decided in the negative, referring to an act passed in 1809 directing in positive terms that no capias ad satisfaciendum, should issue to imprison the body of any debtor, until due return by the sheriff, or other officer, of the writ of fieri facias, stating that sufficient property was not found to satisfy the same.

The ease in 15 La. Reports tho same doctrine is reiterated. The facts of that case are similar to those in Casson v. Cureton. A capias had issued as to one of the parties, while the fieri facias and capias was stayed as to the others.

The question before us in the present ease was not directly decided in the cases of Casson v. Cureton and Blanchard v. Zacharie, although in both cases two of tho three judges then on the bench expressed their views clearly arguendo in favor of the rule in common law practice, that the form of the execution must invariably follow the judgment, while Judge Matthews, with his usual acumen, maintained the proposition that on judgments rendered in solido executions may issue against all or any one of the persons so condemned.

We are inclined to adopt this view of the case, and to conclude on the principle of analogy that whore the creditor may obtain a judgment only against one of several persons bound in a solidary obligation, he may if he elect to have his judgment against all, issue execution against all or against one of the debtors only.

It is therefore ordered, adjudged and decreed that the judgment of the district court he annulled, avoided and reversed. It is further ordered that the injunction taken out in this ease bo dissolved and set aside, the plaintiff and appellee paying costs in both courts.

Rehearing refused.


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    No. 2530.
    G. W. Bayley & Co. v. J. C. Jeneven.
    .In an action against a surety on a lease the burden falls on tho defendant, who specially pleads his discharge from liability by tho action of the plaintiff, of establishing his special defense by a preponderance of proof.
    from the Sbctli District Court, parish of Orleans. Cooley, J.

      Olarhe, Bayne <& JRenshmv, for plaintiff and appellee. Henry O. Miller, for defendant and appellant.
   Howe, J.

This is an action against a surety on a lease of a store in New Orleans. The deiendant pleaded the general issue and the special defense that he had been discharged by the refusal of tho plaintiff to deliver the imemises to the lessee. The court a qua gave judgment in favor of plaintiff and the defendant appealed.

The onus was on the defendant to establish his special defense by a preponderance of proof. A careful examination of the evidence has not satisfied us that he has done so, and we can not therefore perceive that the lower court erred in its decision.

Judgment affirmed.


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    No. 3560.
    E. Blessey, Harrisson Brothers, Wheeling Iron and Nail Company v. Edward Kearny et als. (Consolidated cases).
    The terms of the district courts of the parish of Orleans are fixed by law to commence on the first Monday of .November and continue until the fourth day of July. Citation of appeal if made in open court during the term as fixed by law, is not necessary.
    A plaintiff can not stand before a court demanding the nullity of a judgment, and at the same time claim the proceeds of the sale of property made under it. This is the rule whether the property sold be movable or immovable.
    from the Fifth District Court, parish of Orleans. Lecmmont, J.

      Bogers & Blanc, for plaintiffs aiid appellants. George L. Bright, for defendants and appellees.
   Howell, J.

Appellees move to dismiss this appeal on two grounds:

First — Want of citation.

The judgment was signed in April and the appeal granted, on motion, in May. The appellees say the terms of the district courts of the parish of Orleans are monthly, and citations of appeal are, therefore, necessary in cases like this, and they cite the ease of Cuddey v. Belle-ville Iron Works Company, 4 An. 584, to sustain them.

Since that decision, this point has been reviewed by this court and a different conclusion adopted. Bethancourt v. Stephens, 19 An. 291, Fisk v. Gibbs, Bright & Co., opinion book 38, page 264.

Second — The transcript does not contain all the evidence adduced on the trial.

Certain documents are mentioned as omitted from the record. Prom the certificate of the clerk, wo infer that the omission is not attributable to the fault of the appellants, and as the appellees waive the objection rather than have the cause remanded, we will overrule the motion to dismiss on the merits.

The plaintiff in the suit of Edward Kearny v. Kearny, Blois & Co., under afi. fa., seized and sold the whole stock in trade of Kearny & Bernos, successors to the first named firm. The several plaintiffs herein having obtained judgments against both firms, levied executions upon the proceeds of said sale in the hands of the sheriff, and instituted these suits (consolidated) to injoin the sheriff from paying the said proceeds to the plaintiff, Edward Kearny, and have their judgments satisfied therewith, on the grounds that the judgment in favor of said Edward Kearny was confessed by Alfred Kearny, a member of said firms, without the knowledge or consent of his copartners and with the fraudulent purpose of giving to said Edward Kearny, his brother, an illegal preference over other creditors; that the debt on which said judgment was founded, had long since been paid and extinguished by legal imputation, and that if it he a valid judgment against Kearny, Blois & Co., the seizure and sale thereunder of the property of Kearny & Bernos, a different firm, was illegal.

Several grounds of defense are urged, one of which appears to us to be sufficient, to wit: the plaintiffs can. not allege the nullity of the judgment and at the same time 'claim the proceeds of the sale made under it. This has long been the settled jurisprudence of this State. See 2 An. 684; 3 An. 454; 21 An. 263, 500; 22 An. 136. There is in principle no difference, in the application of this doctrine, between sales of immovable and movable property.

Judgments affirmed.


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    No. 3300.
    Arthur Hart v. The City of New Orleans.
    The act of tlie Territory of Orleans of 1806, creating the office of crier to the courts and fixing tlio fees thereof, was repealed by the act of 1855, regulating costs and fees generally. An action can not theroiore now he maintained to recover fees allowed a crier of a court under the act of 1806, because the act allowing such fees has been repealed.
    from the Sixth District Court, parish of Orleans. Cooley, J.

      Frank If. Butler, for plaintiff and appellee. Unfits Waples, for defendant and appellant.
   Ludeling, C. J.

The plaintiff claims $4222 as the transferree of E. H. Lehman and G. Tournade, alleged to have been criers of tlie Sixth District Court, in four thousand two hundred and twenty-two tax suits, and for which they charge one dollar in each case.

He relies upon the act of the territory of Orleans entitled “ An Act establishing an explicit fee hill,” to support his pretensions to charge one dollar in each case, and upon the articles of the Code of Practice, 758 and 759, to show that such an officer as crier still exists in this State.

The act of 1806 does fix the fees of criers at one dollar, and the Code of Practice mentions criers among the officers of courts of original jurisdiction. But we are not prepared to admit the conclusion drawn from these facts by the plaintiff. The territorial act of 1806 is an act relative to lees; “an act to' establish an explicit fee bill.” In 1855 a law was enacted entitled “An Act to regulate and define costs and fees generally;” the twenty-seventh section of this act declares “that all laws contrary to the provisions of this act, and all laws upon the same subject matter, except what is contained in the Civil Code and Code of Practice, be repealed.” The subject matter of both laws is the same, and therefore the former is repealed.

If such an officer can he regarded as still recognized by the laws of this State, which it is not necessary to decide in this case, he could only recover upon a gua/ntum, ynendt or a special contract.

The plaintiff has failed to make out a case.

It is therefore ordered and adjudged that the judgment of the lower court he annulled, and that there he judgment in favor of defendant, rejecting the plaintiff’s demand with costs of both courts.

Rehearing' refused.


author: Ludelino, C. J.

text:
    No. 2531.
    Ida A. Slocomb v. Merchants’ Mutual Insurance Company.
    Iii 1862, while tho city of How Orleans was under tho control of tho military authorities of tho United States, tho quartermaster of tho army collected from the Merchants’ Mutual Insurance Company fifteen thousand dollars, under a throat of punishment under general orders t-lion in force, in case of refusal, this amount "being due by tho company on a policy oí insurance taken for risk on four buildings in the city of New Orleans, belonging to Miss Ida A. Slocomb, which had been detroyed by fire. Miss Ida A. Slocomb brings this suit against tho company for the amount of the policy. ' Tho company sot up as a defense, its payment under tho military order to the quartermaster.
    Held — That payment having been made by tho company under a military order, at a time when that authority was suprome and could not be resisted, it operated a full protection to tho company, and discharged thorn from further liability.
    from the Fourth District Court, parish of Orleans. Thectnl, J.

      Breaux & Fenner, for plaintiff and appellant. A. 'Voorlties, for defendant and appellee.
   Ludelino, C. J.

This suit is instituted to recover from the defendant the sum of fourteen thousand three hundred and thirty dollars, • with legal interest from twenty-first December, 1863, being tbe amount of loss by fire, under a policy of insurance in favor of plaintiff.

The defense is that this sum was paid to the assistant quartermaster in New Orleans, under military orders from headquarters.

We will notice that Captain McClure, Assistant Quartermaster, was on the staff of General Banks (see general order 107, of 1862), and it was to him tho money was paid, under the following order:

“Office of Chief Quartermaster,
New Orleans, January 20, 186-L
“Charles Sagory, Esq., President Mutual Insurance Company:
“ Sir — In obedience to superior orders I require you to pay over to me at this office the amount of fifteen thousand dollars, being the amount of cash duo by the company over which you preside to Miss Ida A. Slocomb, on the policy of Insurance taken for risk on her four buildings recently destroyed by fire, on Tchoupitoulas street.
This order must be complied with at once ; a failure on your part will incur tbe penalty of general orders 73 and 82, of date eighteenth of September and seventeenth of October, 1862.
“ Respectfully,
JOHN McCLURE,
Captain and A. Q. M.”

That a payment under this order should protect the company can not bo doubted, until tho rulings in Mandevillo and Montgomery v. Bank of Louisiana, 19 An. 392, and Nelligan v. Citizens’ Bank, 21 An. 332, be overruled, and we can perceive no good reason for doing that.

It is therefore ordered and adjudged that the judgment of tho lower court be affirmed with costs of appeal-


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    No. 3794.
    Jules Levy et als. v. Police Jury of Pointe Coupee.
    The assumption of a mortgage by a purchaser of the property anti tho iiayment of the interest as it becomes duo interrupts prescription as to the mortgage creditor, and the rank and vitality of tho mortgage is preserved.
    The execution of a second mortgage on a different piece of property to secure a debt already secured by a mortgage on other property does not ipso facto novate the first mortgage.
    from, the Seventh Judicial District Court, parish of Pointe Coupee. Miller, J.

      Hdward Phillips, for plaintiffs and appellees. Haralson c6 Olaiborne, for defendants and appellants.
   Howell, J.

On twelfth Juno, 1850, Zenon Ledoux borrowed from tho Police Jury of Pointe Coupee $2540 of the “ Poydras Fund ” and executed a mortgage on his plantation to secure its payment. On twonty-third December, 1850, Ledoux sold said plantation to Wm. A. Patterson, who assumed to pay said mortgage debt as part of the price. On tenth January, 1851, Patterson sold to R. W. McRae, who assumed the said debt as a part of the price. On twentieth February, 1852, McRae sold to Ovide Lejeune, who also assumed said debt as a part of the price. And on ninth December, 1866, Lejeune sold to J. C. Patrick, who likewise assumed the same as a part of the price. The annual interest on said loan has been regularly paid by the respective owners of the land mortgaged. Oil seventh May, 1870, this suit was instituted to have the said mortgage declared inferior in rank and postponed to the legal mortgage in favor of Mrs. Marguerite Levy, one of the plaintiffs, which attached to all the propon owned since twelfth April, 1854, by said Ovide Lejeune, to whom she was married in 1842, and from whom she was divorced in April, 1856. This demand is based on the ground that the said claim or debt is extinguished by prescription and novation.

The admission “that the interest on the capital has been regularly paid by the parties who subsequently became owners of the land,” is proof of the interruption of xirescripfcion as to all the parties who were liable for the payment of the debt. Each successive purchaser assumed its payment for the benefit of the preceding one, and the payment of tho interest was so made in cash in discharge of the former, and with his implied consent, and hence the vitality and rank of the mortgage upon the land were preserved. See 12 R. 399; 21 An. 521. Nor does the reeord sustain the plea of novation. Concede that the act of mortgage executed, on the twenty-seventh March, 1853, by Ovide Lejeune, in favor of the police jury on another and different tract of land, was intended to secure this debt, it is neither stipulated nor intimated therein or elsewhere that the existing mortgage on the land acquired from and mortgaged by Zenon Ledoux, was canceled or extinguished, or the debt secured by it novated. The indorsement made on sixteenth. February, 1858, by the recorder on the record of the mortgage of Ledoux,- as to the canceling of the mortgage in the name of McRae, has no connection with this act by Lejeune on twenty-seventh March, 1853. And furthermore, Lejeune sold the 'land in question on ninth December, 18G6, to Patrick, subject to this very mortgage.

“Novation is not presumed; the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt.” R. C. C. 2190.

In this case the debt and mortgage created by Ledoux in favor of the police jury wore recognized by each successive purchaser, and the payments made of the interest on the capital loaned kept the debt and mortgage in force. Consequently, the property passed into the hands of Lejeune subject to the said mortgage, and nothing has been done by Lejeune and the police jury to impair its legal force and operation.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment rejecting the demand of plaintiffs with costs in both courts.

Rehearing refused.


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    No. 1741.
    John T. Norris v. J. K. Collins, Executor.
    A dativo testamentary executor wbo lias filed liis final account and. obtained bis discharge, can not afterward represent tbo estate in any suit or controversy between tlio legatees about the rents and revenues of the estate while under bis administration.
    A PPEAL from the Second District Court, parish of Orleans. Duvig-JJl neemd, J.

      D. O. Babatl, for plaintiff and appellant. Hornor & Benedict, for defendant and appellee.
   Howell, J.

Pending the publication of the final account filed by the defendant Collins as dative testamentary executor of John Jerrison, the three particular legatees presented themselves to be recognized as such and put in possession of the property bequeathed to them and suggested that they were entitled to the rents and revenues thereof from the death of the testator, and submitted the same to the court. They were recognized and put in possession, “ reserving their rights, if any they have, to the fruits and revenues of said real estate.”

On the next day the account which disposed of the rents to the universal legatee, was homologated. Some months afterward the executor obtained his discharge, and two or three mouths still later this proceeding was taken by one of said particular legatees against him as executor and as agent of two other particular legatees to recover one-third of the said rents, fixed at $800. Collins pleaded his discharge and his want of authority to represent the succession or the special legatees.

From a judgment sustaining this ploa the plaintiff has appealed, lie was a party to the mortuary proceedings, and can not treat the two judgments homologating the final account and discharging the dative ■executor as nullities.

The record shows that the executor settled with the universal legatee for the rents, and the recourse of plaintiff is not against Collins in his fiduciary capacity under the circumstances.

Judgment affirmed.


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    No. 3734.
    A. Rochereau & Co., Agents, v. Marcel Guidry—J. Jeanneaud & Co., Garnishees.
    A garnislioo in attachment proceeding is not entitled to appeal from an interlocutory order of the court directing the sheriff to seize and hold the funds in the hands of the garnishee subject to the decision in the attachment suit, because the garnishee, being a mere .stakeholder, has no interest in the disposition to be made of the funds attached.
    from the Fifth District Court, parish of Orleans. Lcaumont, J.

      J. A. Seghers, of garnishees, appellants. Oluvrles Lowque, for appellee.
   Wyly, J.

The plaintiffs attached in the hands of the garnishees, J. Jeanneaud & Co., some two thousand dollars belonging to the defendant. The latter, alleging his inability to give bond in order to release his funds attached, took a rule on the plaintiffs and the garnishees, to show cause why the funds should not be turned over to the sheriff and be held by him pending the litigation.

Prom the judgment making the rule absolute, the garnishees, J. Jeanneaud & Co., have taken this appeal.

The defendant, Marcel Guidry, the appellee, now moves to dismiss the appeal on several grounds, the most important being that it is an interlocutory decree which can cause no irreparable injury to the appellants, the garnishees.

We do not see what interest the mere stakeholders have in the interlocutory order, or how it can work them an irreparable injury. The funds belong to the defendant and aro held by the garnishees subject to the rights of the plaintiffs, who caused the attachment to be levied.

Now as the court has made an interlocutory order contradictorily with both parties (the plaintiffs who attached, and the defendant who owns the funds), requiring them to be turned over'to the sheriff for his 'keeping pending the litigation, we do not see how the garnishees can suffer irreparable injury. If they obey the order they will be protected against both the attaching creditors and the owner of the funds, because both being parties to the order are bound thereby.

Let the appeal herein be dismissed at the costs of the appellants.

Rehearing refused.