author: Poché, J.

text:
    No. 7986.
    Succession of François E. Dupuy. Widow Samuel Moore vs. Dorestan Dalcour, Natural Tutor, et al.
    On Rule against A. J. Lacroix, Purchaser.
    [Labiche died in 1872, leaving certain heirs at law, who claimed his estate against one another. They subsequently made a compromise between themselves, by which some of them sold their rights to the others, who, thereupon, entered into possession of the estate and sold its property at public auction. Dupuy bought the property. He afterwards died, and the same property was sold by order of the Probate Court, and bought by Lacroix. This purchaser refuses to accept the title, because, in 1877, five years after the death of Labiche, his last will was discovered, by which he instituted his same legal heirs, his universal legatees, and made a number of money legacies.

      .Bedded that the title is good and the purchaser in no danger of eviction, because the Compromise between the heirs of Labiche was made by all parties in view of the existence of a will and is binding on all of them, and because the special legatees have not recorded their legal mortgage against the property of the testator.
    APPEAL from the Second District Court, parish of Orleans. Tissot. . J.

      <7. E. Schmidt for Plaintiffs on Bule and Appellants;
    In the absence of forced heirs, the universal legatees are seized, of right of the estate of the deceased. It is upon their heads that all the rights of ownership and possession of the-deceased pass at the very moment of his death. It is to them that the maxim applies: “ Le mort saisit le vifBut the particular legatees do not represent the deceased. Rev. C. 0., Arts. 940 and 1609.
    In intestate successions the legal heirs, whether legitimate or irregular (the latter, however, after a decree putting them in possession), represent fully the deceased, are owners and possessors of all he owned and possessed, and debtors for all that was due by him. Rev. C. 0., Arts. 941, 942, 943, 944, 945, 949; Rogron, on.Art. 724 O. ÜT.
    A particular legatee has a claim for Ms legacy against the universal legatees or heirs personally, each of whom is bound to discharge the legacy in proportion to the part that falls to him in the succession; and moreover, a mortgage on the immovable property of the succession is granted by law for the security of such legacy. O. O. Art. 1633 (1626).
    But the legal mortgage of the particular legatee never was, even under the Code of 1825 — one which could exist, as to third persons, without registry. C. C. of 1825, Art. 3298; 22 An. 391, ib. 390.
    Such a legatee, if he demands a separation of the patrimony of the deceased, preserves hie privilege, as against the heirs or representatives of the deceased, on the immovables of the succession, only by recording the evidence of his claim against the succession within three months after it is opened. C. C. Art. 3275 (3242).
    "Where a person dies leaving no ascendant and no legitimate relations, but two natural daughters, a natural sister, and the son of another natural sister predeceased, and a contest arises between the daughters on the one hand, and the two natural collaterals on the other, as to who is entitled to take as heirs the estate of the deceased, and a compromise • is effected between the contestants or litigants in wMch the two daughters, in consideration of a certain sum paid them, consent to renounce in favor of their opponents — the sister and nephew of the deceased — all rights or pretensions whatever which they have, or might have, either as heirs, legatees, or in any other right, to the estate; the subsequent discovery of a will whereby the deceased institutes the two daughters, sister, and nephew aforesaid his universal legatees, could not, in the absence of any evidence of fraud on the part of any of the parties to the compromise, vitiate or annul the same. O. C. 3083* (3050).
    The opposition of the natural sister and nephew to tbe recognition of the natural daughters-as the legal heirs of the deceased having, in conformity with the stipulations of the * compromise, been maintained and the opponents recognized as the sole legal heirs and put into possession of the estate as such in 1872. the judgment so rendered is final by the lapse of the delays for an appeal. It has, therefore, the force of res judicata as to the status of the said opponents as legal heirs.
    The only persons who could have contested the rights of the opponents under that judgment, were the natural daughters, and as against them, the compromise duly executed in 1872, has the force of the thing adjudged. C. C. 3078 (3045).
    The title acquired by Dupuy in 1873, from the persons who had been recognized in 1872, as-the sole heirs of Cyrille Labiclie, is therefore unimpeachable by either the legal or testa- • mentary heirs of said Labiche, and the appellee, Lacroix, has not exhibited any valid reason for declining the title tendered him by the representatives of the estate of' Dupuy.

      J. L. Tissot for Defendant on Bule and Appellee:
    If the buyer is disquieted in his possession, or has just reason to fear that he shall be disquieted by an action of mortgage, or by any other claim, he may suspend the payment of the price until the seller has restored Mm to quiet possession, or caused the disturbance to cease, unless the seller prefer to give security.

      There is an exception to this rule, when the buyer has been informed, belore the sale, of the danger of eviction.
    C. C. 2557 (2535); C. If. 1653, annoted by Dalloz; C. P. 710; 2 An. 384 j 9 An. 232; 9 H. 414 and also the notes at the foot of Art. 2557 C. C., and 710 C. P. annoted by Voorhies.
    Si l’aoheteur est troubló ou ajuste sujet de craindre d’étre troubló par une action soit hypothécaire, soit en revendication, il peut suspendre le paiement du prix jusqu’á. ce que le vendeur ait fait cesser le trouble, si mieux n’aime celui-ci donner caution, ou á moinsqu’il n’ait été stipulé que, nonobstant le trouble l’acheteur paiera.
    .Juste crainte d’éviction. L’acquóreur n’est pas obligó de justifler d’un trouble dans son acquisition; il sufdt qu’il ait juste sujet de craindre d’étre trouDlé, soit par un action hypothócaire, soit parnne revendication, pour qu’il ait la faculté de suspendre le paiement de son prix j usqu’á ce que le vendeur ait fait cesser le trouble.
    Paris, 4 Mai 1816, Jur. générale, vente 1174; Code ITapolóon, Art. 1653, annotó par Dalloz.
    Pour que l’acheteur soit fondó á-prótendre qu’il ajuste sujet de craindre d’étre troubló, il n’est pas nócessaire qu’il prouve qu’un tiers a sur la chose uu droit de proprióté, d’hypothóque, etc.; il suffit qu’il sígnale des faits sur lcsquels des tiers puissent baser une prótention mena9ante pour lui.
    Jur. générale, vente 1172; Dalloz, Code annotó, sur l’Art. 1653 du Code Napoléon.
    L’acquóreur menacé de trouble peut, au lieu de suspendre le paiement du prix, demander la rósiliation de la vente.
    Jur. générale, vente 1189; Dalloz, Code annoté, sur 1’Art. 1653 du Code ITapoléon.
    If the heir a6 intestato accepts the succession under the impression that there is no will,, his acceptance is null, if a will be discovered, of the existence of which he was ignorant. C. C. Art. 931 (976).
    He who accepts ought to know under what title the succession is left to him, so that if the instituted heir accepts the succession as coming to him ab intestato, the act is null. C. C. Art. 982 (976).
   The opinion of the Court was delivered by

Poché, J.

At a judicial sale of the property depending upon the succession of Erangois E. Dupuy, a lot of ground and improvements, situated in New Orleans, were adjudicated to Adolphe J. Lacroix, who' refused to comply with the terms of his bid, on the ground that the vendors of the late Dupuy had no legal titles to the property, and that the purchaser would be in danger of eviction-under such defective titles, whereupon the executors of the succession filed a rule for the purpose of compelling the said Lacroix to comply with the terms of the adjudication.

The District Court rendered judgment in favor of the defendant on the rule, and the executors have appealed.

A statement of the facts underlying this controversy is necessary to a proper understanding of the issues presented in the pleadings.

In April, 1872, one Cyrille Labiehe died in this city, unmarried, leaving no legitimate issue, but leaving two natural daughters whom he had never acknowledged conformably to the forms of law thereto applicable, and having considerable property, among which was the lot of ground which is the subject-matter of this litigation.

Soon after his death, after searching in vain for a will of the deceased, his two natural daughters, Armantine, wife of J. B. Bozant, and Eugenie, wife of Louis Bourgeau, filed a petition in the probate court, claiming to be recognized as the legal and only heirs of the deceased, and praying to be put in possession of the property left by him.

This petition was met by an opposition interposed by Mareelite Ohoteau, a natural sister, and Jules Birot, a nephew of Labiche, (by right of representation of his deceased mother, Marie Jeanne Labiche, a natural sister of the deceased,) who claimed to be the only legal heirs of Cyrille Labiche, and specially denied that Armantine and Eugenie Labiche had ever been acknowledged by the deceased.

That litigation ended in a compromise, under which a judgment was rendered recognizing the sister and the nephew as the sole heirs of Labiche, and was followed by a written compromise, by which the natural daughters, for a moneyed consideration, relinquished in favor of Mareelite Choteau and Jules Birot, all the rights and titles which they could claim or urge in the property of the Labiche succession. Subsequently, at the death, of Mareelite Choteau, her son and her only heir, Nerestan Haubuchon, succeeded to all her rights, and in June, 1873, under his directions and those of his co-heir, Jules Birot, all the immovable property belonging to the succession was sold at public auction, and at that sale E. E. Dupuy purchased the lot of ground under discussion, obtaining for the same an authentic sale with full warranty, under date of August 20th, 1873, from Nerestan Haubuchon and Jules Birot in their capacity of heirs of Labiche, as above set forth.

, Now, in 1877, five years after the death of Labiche, an authentic will of the deceased was found among the archives of Amódée Ducatel, a notary public in this city, before whom the will had been enacted on the 8th of November, 1866, containing the following particular legacies of immovable property:

Eirst. To his two natural daughters, Armantine and Eugenie, he gave a piece of real estate on St. Ann street between Robertson and Claiborne streets,

• Second. To Louise Yalentin, house No. 10 on Prieur street.

Third. To his sister, Mareelite Choteau (or, in her default, to her son, Dorestan Aubuchon,) the house No. 11 Prieur street.

Eourth. To his nephew, Jules Birot, house No. 12 Prieur street.

And he then made the following particular legacies of sums of money, viz:

1. To his granddaughter, Rosa Roubiau.................... $ 500 00

2. To Alfred, son of Felix Yalentin......................... 200 00

3. To his godchild, Alcée Cyrille Hains......................( 200 00

A To his godchild, Jules Auguste........................... 200 00

5. To his godchild, Theresa Pitt............................ 200 00

■8. To Ursule Dubois....................................... 200 00

Total amount of the legacies of money............. $1500 00

After making these particular legacies the testator continued, and made the following testamentary disposition ;

“ Je veux et entends que'toutes les propriétés dont je n’ai pas dispose par le present testament et que je pourrais laisser au jour de mon déeés, soient vendues, et que le produit de la vente de ces propriétés, •ainsi que l’argent comptant que je pourrais avoir en banque on ailleurs, •et le montant des billets hypothécaires, ou autres, qui pourront m’étre dus, soient répartis, aprés paiement de mes dettes, des legs ei-dessus faits et de tous frais pour le réglement de ma succession, soient répartis, je le rápete, entres mes deux filies surnommées, Armantine et Eugénie Lábiche; Marcelite Chotean, ma sceur, et a ,son défaut, Dorestan Aubu•ehon, son fils; Marie Louise Valentin, et mon neveu, Jules Birot, par égales portions; les nommant et instituant mes légataires universels.”

From the evidence it appears that Louise Yalentin, instituted as a particular legatee, and Marie Louise Yalentin, instituted as universal legatee, was one and the same person, and that she died before the ■testator.

This will was filed in the probate court on the 2d of May, 1877, but no demand has ever been made for the registry and execution of the «ame.

Now, defendant in the rule, averring that the existence of said will ’having been fraudulently concealed by Marcelite Ohoteau and Jules Birot, who'were, in consequence, illegally and fraudulently put in possession of the property left by Cyrille Labiche, they acquired and could ■convey no legal title in the property of said succession; and, averring further, that the instituted heirs and legatees are now preparing to rewendicate their title to said property, he alleges that he cannot be compelled to accept such title, and he prays for judgment, annulling the adjudication made to him on the 10th of April, 1880.

The legality or validity of the title acquired by F. E. Dupuy, on the •20th of August, 1873, is, therefore, the vital question presented for solution in this case.

We shall consider what rights .to the property could be urged, first, By the two natural daughters; next, by the natural sisters or their representatives, and finally by any of the other legatees under the will. We must, however, premise that in our opinion, by the death of Louise Yal- ‘ -entin, who was a particular as well as a universal legatee before the death of the testator, her shares of the legacies in her favor reverted to the mass of the succession, as undisposed of by particular legacy, ancl, therefore, inured to the other instituted universal legatees, who are shown to be Armantine and Eugenie Labiche, and Marcelite Choteau; and Jules Birot.

' Having never acknowledged his natural daughters, the testator had no forced heirs, and was, therefore, free of any restrictions in his testamentary capacity. In unmistakable language he instituted Louise-Valentin, his two natural daughters, his sister and his nephew, as his universal legatees, providing specially that all property which he did not dispose of by particular legacy should be equally divided between them. Now, Louise Valentin having died before him, the legacies in her favor became without effect (C. C. Art. 1097), and the portion intended for her being thus undisposed of, inured by accretion to the benefit of the other universal legatees. C. C. Art. 1707; 4 N. S. 252; Parkinson vs. McDonough, 10 An. 64; Lebeau vs. Trudeau, 18 An. 409; Succession of Foucher.

It, therefore, follows that under the execution of the will, the two-daughters, the sister and the nephew, would have become the sole and joint owners of all the immovable property owned at his death by Cyrille Labiche. By the compromise of June, 1872, all the rights which the two daughters could, in any capacity, claim in and to any property of the Labiche succession, were transferred to, and acquired by, Marcelite Choteau and Jules Birot, as shown by the following stipulations in said act of compromise:

“Nous soussignees, Marie Armantine Labiche, épouse de Jean Baptiste Bozant, et par lui dument assistóe et autorisóe, et Eugenie Labiche, ópouáe de Louis Bourgeau, et de lui dument assistóe et autorisée, reconnaissons, par les presentes, avoir regu de Made. Marcelite Choteau et de Mr. Jules Birot, en leur qualité de seuls et uniques heritiers de feu Cyrille Labiche, la somme de cinq mille quatre-vingt troispiastres cinquante-cinq cents et demi, montant qui nous revient d’apresle compromis fait entre nous, laquelle somme est regue par nous en paiement et en pleine et entiére satisfaction de tous les droits, titres, pretensions et reclamations, que nous avions ou pouvions avoir a exercer sur les biens de la succession du dit feu Cyrille Labiche, soit comme héritieres, lógataires, ou a d’autres titres.
“ En conséquence, nous donnons par les presentes a la dite Marcelite Choteau et audit Jules Birot, bonne et valable quittance et decharge de la dite somme de $5083 55|, et en consideration du paiement a nous fait de cette somme, nous códons, abandonnons et transfórons á la dite Marcelite Choteau et au dit Jules Birot, tous les droits, de quelque nature que ce soit, que nous pouvons avoir sur les biens dópendant de la succession du dit Cyrille Labiche, lesquels biens appartiennent au~ jourdhui a la dite Marcelite Choteau et au dit Jules Birot, pour avoir étó reconnu comme les seuls et unique hóritiers du dit Cyrille Labiche, par un jugement rendu le six du présent mois par l’Honorable .SecondsCour de District pour la paroisse d’Orléans.”

. It is very clear from the evidence, both intrinsic and extrinsic, that the only consideration of this compromise on the part of Marcelite-Choteau and Jules Birot, the natural sister and nephew, was the relinquishment by the natural daughters of all rights of any nature whatsoever, which they could then or thereafter claim or acquire to any property depending upon the Labiche succession.

The evidence shows that all these parties sincerely believed that the deceased had left a will, and that every one of them was very hopeful of having been remembered by the testator in his munificence. Hence, it is that immediately after his death a diligent search was made-for his will, inquiry having been made at the very notary’s office, where-the instrument was found five years later. But at that time the search was fruitless, and, therefore, with a view to adjust the differences-between the claimants and the opponents, the above recited compromise was entered into. The evidence clearly negatives the charge that Marcelite Choteau or Birot fraudulently, or in any manner, concealed the existence of the will, or committed any fraud in aid of their claims-to the succession property. But they guarded against the possible discovery of a will by obtaining from the natural daughters a transfer of such rights as they might acquire as legatees.

Both in law and in equity, the latter are irrevocably bound by this-compromise, which to them has a force equal to the authority of the thing adjudged, C. O. Arts. 3078, 3083, and absolutely debars them of the right of contesting the titles which, as vendors, they are bound to-warrant.

Even if it could be urged that at the date of the compromise they had no rights as heirs, and, therefore, no title to the property which-they pretended to sell, any claim which they could now set up would be-easily defeated under a well-settled principle of our jurisprudence, providing that the title which they subsequently acquired at the discovery of the will, and as legatees thereunder, must inure to the benefit of their vendees. 12 M. 185, 649; 5 N. S. 248; 9 L. 100; 12 L. 170.

The titles of Dupuy to the property in question are, therefore, invulnerable against any act emanating from either Armantine or EugenieLabiche.

As to Birot and Haubuchon, it is argued that their acceptance of the succession as heirs became a nullity by the subsequent discovery of the will instituting them universal legatees, under the effect of Arts. 981 and 982 of the Civil Code, which read, respectively, as follows :

“ Art. 981. — If the heir ab intestate accepts the succession under •the impression that there is no will, his acceptance is null, if a will be discovered, of the existence of which he was ignorant.”
“ Art. 982. — He who accepts ought to know under what title the suc■cession is left to him; so that if the instituted heir accepts the suc•cession as coming to him ah intestato, the act is null.”

But as a matter of fact, it is apparent from the precaution which they took to guard against the effect of a will, which they believed to be in existence, that they could claim to have acted in the utter ignorance of the existence of a will.

But how could Birot and Haubuchon, the vendors of Dupuy, with full warranty, be heard to contest his titles ? Who, therefore, could in-voke the nullity of their acceptance ? It could not be urged by the two natural daughters, who, under the stipulations of their compromise, had severed their connection with the estate, nor could it be urged by the other legatees of particular legacies, whose rights are confined to claiming their legacies from the heirs or legatees in the proportion of the immovable property of the succession withheld by them, or to follow the property by the hypothecary action, in case their legal mortgage had been preserved by inscription. Birot and Haubuchon, as vendors, are bound to warrant the titles of their vendee, who is entitled to the benefit of the rights which his vendors subsequently acquired under the discovery'of the will instituting them universal legatees. See the • authorities quoted above on this point. See, also, Laurent, vol. 21) l 209; Duvergier, vol. 1, $ 219. The nullity resulting under these two articles of our Code might or could.be urged by Birot and Haubuchon •against all parties but their vendees of the property acquired by them under their acceptance of the succession.

There is, therefore, no danger of eviction under the Dupuy titles from the suit threatened by either Birot or Haubuchon.

As to the claim of the particular legatees of sums of money, we •have already shown that their demands are confined to two manners of proceeding. They must call on the heirs or legatees, or on the testamentary executors. C. C. 1630.

In default of satisfaction from either of these sources, the law has provided a legal mortgage in their favor on the immovable property of the succession. C. C. 1633. But under Art. 3275, C C., this mortgage, in order to be preserved, must be recorded within three months after the succession is opened. 22 An. 392, Ogle vs. King.

The will of Cyrille Labiche, which is the evidence of their claim, has been discovered since May, 1877, and to date it has not been recorded, nor has any step been taken to execute the same.

The mortgage granted by law in their favor, in order to have effect •as to third persons, should, under our laws, conforming with both the Constitutions of 1868 and 1879, be inscribed, in default of which, as is-the case here, it cannot reach the succession property now owned by-third persons.

Hence, the legal mortgage ’ to which this property, as part of the-immovable property of the Labiche succession was subject, is now stripped of any force and effect through the laches of these legatees-themselves, and it follows that Dupuy’s titles are beyond the reach of their attack.

It is, therefore, clear that the fears of eviction urged by Lacroix, the purchaser, are groundless, and we conclude that he should be held' to the terms of his purchase.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and, proceeding to-render such a judgment as should have been rendered, it is ordered, adjudged and decreed that the rule taken by the executors of the succession of Erangois Edmond Dupuy, against A. J. Lacroix, to compel him to comply with the adjudication made to him on the 10th of April, 1880, be made absolute; and that the said Lacroix be condemned to comply with the terms of said adjudication, in default of which a writ of distringas shall issue, after legal delays, against his property, to enforce his compliance with the order, and that he pay the costs of this rule in both courts.

The Chief Justice takes no part, having been of counsel in the-matter.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 8195.
    Gillis & Kennett vs. John M. Clayton, Assessor.
    The matter in dispute in this case being the difference between the value put upon Plaintiffs’' property by the Assessor and that put upon it by the Plaintiffs themselves, and that-difference being less than $1000, this Court has no jurisdiction. The constitutionality and legality oí the tax itself are not at issue.
    APPEAL from the Ninth Judicial District Court, parish of Concordia. Hough, J.

      Boatner & Mason for Plaintiffs and Appellees:
    Eirst — 'When tlie funds to be distributed does not equal a thousand dollars, and the issues do-not relate to the legality or the oonstiutionality of the law, but relate to questions of facts, the Supreme Court is without jurisdiction to try the same. Article 81, Constitution of 1879. State of Louisiana vs. Maxwell, 27th An. 722.
    Second — The constitutionality of a law will not be considered when an issue to that effee has not been raised. State of Louisiana vs. Widow J. C. de St. Romes, 26th An. page 753.

      Hiram B. Steele, District Attorney, for Defendant and. Appellant:
    ’’When a judgment declares an assessment illegal and enjoins the collection of the tax under it, an appeal -will lie direct to the Supreme Court, regardless of the amount involved. Oonst. Art. 81 j 9 An. 206.
   On-Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

The plaintiffs and appellees move the dismissal of the •appeal on the following grounds, which we copy verbatim:

1. The matter in dispute or the funds to be distributed do not •equal one thousand dollars.
“ 2. The legality or constitutionality of a tax, toll, or impost is ■not in question, and consequently this Court has no jurisdiction.”

Certain property of the plaintiffs having been assessed at three 'thousand dollars, they brought suit in the District Court of Concordia .Parish, where the property was situated, against the assessor of said -parish, to compel him to reduce the assessment to eight hundred «dollars.

Judgment was rendered ordering a reduction of the assessment to ■fifteen hundred dollars, and from this judgment the assessor and tax «■collector have taken this appeal.

The matter in dispute is the difference in the amount of taxes on an -assessment of eight hundred dollars and on one of three thousand dollars, and this difference being less than one thousand dollars, this Court has no jurisdiction, unless the constitutionality or legality of the tax in question is in contestation.

The constitutionality of a tax is in contestation:

1st. When it is claimed that the law, under authority of which the ■■tax is imposed or assessed, violates some provision or provisions either •of the State or Federal constitutions, or of both.

2nd. When it is asserted that the property, upon which the tax is 'imposed, is exempt from taxation under some constitutional provision.

The legality of a tax is in contestation :

1st. - When it is denied that there is any law in existence authorizing such tax.

2nd. Where, admitting the existence of such a law, it is asserted that' the law is invalid, owing to a want of promulgation or other irregularity; and,

3rd. Where it is claimed that the tax was originally imposed or ■assessed in violation of some provision of the law, or by one without ■’legal authority to make such assessment.

Subjected to these tests, it is apparent that the constitutionality or legality of a tax is not involved in any of the issues presented in this -case.

The plaintiff does not complain that the tax assessed against his property is unconstitutional or illegal on any of the grounds above set •forth, or for any other reason. On the contrary, he admits in argument that the tax in question is both constitutional and legal. That it was imposed by authority of law; that the property assessed was subject to taxation, and the only thing he disputes or contests relates to the amount or quantum of taxes he should pay on the property. In •other words, the whole controversy grows out of the alleged overestimate made of the property by the assessor and the alleged viola-tion of an agreement between the assessor and the plaintiffs respecting the valuation of the property.

Under this view of the matter, however extraordinary or unwarranted we may regard the proceeding, we cannot review it, as it is ■clearly not within the jurisdiction of this Court.

If the action of the judge a quo was unauthorized and exerted in a ■matter not properly within his cognizance or jurisdiction, as charged, the defendant or the State was not without a remedy, but that remedy •was not by appeal.

The motion to dismiss must prevail. The appeal is, therefore, dismissed at the costs of the appellants.


author: Levy, J.

text:
    No. 8196.
    State of Louisiana ex rel. Daniel Lemle vs. P. W. Chase, Tax-Collector, et al.
    3sTo municipal Corporation in tlie State can impose a greater License for tlie sale of alcoholic or spirituous liquors than is imposed by the General Assembly, on the ground that it is a police regulation. Article 170 of the Constitution in no manner controls, or even relates to Article 206.
    APPEAL from the Ninth Judicial District Court, parish of Concordia. Hough, J.

      Boatner & Mason for the Relator, Appellee:
    Tirst — The parish of Concordia, being a political corporation, it can assess no greater license tax than that imposed by the General Assembly for State purposes. Art. 206, Constitu* tion 1879.
    Second — The power of regulating the sale oí spiritous liquors, under Article 170 of the Constitution, does not extend to the police power the right to raise a revenue therefrom, but relates to the regulation thereof, and is restricted as to amount of license imposed by Art. 206 of the Constitution of 1879 and Act No. 119, Sec. 6, of the Legislature of 1880.

      Kennard, Howe & Prentiss and H. B. Steele, District Attorney, for Defendants and Appellants :
    3Tirfl’t — The importance of power of parishes to require license fees from keepers of grog-shops for purposes of regulation as well as revenue. Cooley on Taxation, p. 403; Proverbs of Solomon, 23, 29-35 j Germania vs. State of Maryland, 1.

      Second — This power exercised in Louisiana for many years prior to 1879. R. S. 1870, sections 910, 2743, 2778; Jones vs. Grady, 25 An. 586; State vs. Kuhn, 24 Id. 474.
    Third — The articles 170 and 206 of the Constitution of 1879, taken together, mean that formero license fees imposed for revenue only, on occupations not fairly the subject of police regulation, the parish rate must not exceed the rate fixed for State purposes in the revenue act for the current year; but that article 206 does not forbid a larger regulative license fee for the particular matter of the sale of liquor, a sale specially subjected by article 170 to police regulation.
    Fourth — The State license on grog-shops at present is for revenue only, as shown by the whole tenor of Act 119 of 1880; and it should not be held to limit the parishes in their policy of regulation with reference to such a subject.
    Fifth — In no event should plaintiff have a mandamus against defendants in this cause. There is no plain and merely ministerial duty which defendants have refused to perform.. The defendant, the tax-collector, cannot issue a license on the terms offered by plaintiff,, for there is no ordinance to authorize such issuance. The Police Jury cannot be compelled by mandamus to pass such an ordinance, sinoetliat would be to compel the exer•cise of legislative discretion in a matter of public policy. 29 An. 146; 7 M. 4; 9 An-513 ; 25 An. 586; 24 An. 474.
   The opinion of the Court was delivered, by

Levy, J.

Daniel Lemle, the relator, is a retail merchant and grocer in the parish of Concordia, whose gross sales do not exceed $15,000, who has taken out State and parish licenses from the defendant, tax collector of said parish; for each license paying ten dollars. He applied to and demanded from said collector State and parish licenses to sell liquor in less quantities than a pint, and tendered in payment thereof fifty dollars for each of said licenses; the collector refused to issue to him the licenses demanded. The collector based his refusal to issue the licenses as demanded upon the grounds that the Police Jury of said parish had levied a parish license tax on the sale of liquor in the-quantities mentioned at one hundred and twenty-five dollars. Relator thereupon applied for a mandamus to compel the collector to issue said licenses and to receive in payment thereof the sum of fifty dollars, as-tendered, for each. After trial the mandamus was made peremptory,, and defendants have appealed.

Appellants contend that Art. 206 of the Constitution and Act No. 119 of the session of the Legislature of 1880 do not restrict the Police Jury to the amount of license tax fixed by the State Legislature, but that under article 170 of the Constitution, it has the right, for the purposes of police regulation, to fix a higher license fee; that for -mere license fees, imposed for revenue only, on trades and occupations, not fairly the subject of police regulation, the parish rate must not exceed that fixed for State purposes in the State revenue act for the current year, but that article 206 does not forbid a larger regulative license fee for the particular matter of the sale of alcoholic or spirituous liquors, which sale is specially subjected by article 170 to police regulation, and may therefore be regulated by the parishes by a higher rate of license fee as well as in other ways. Article 206 contains the following clause: “ No political corporation shall impose a greater license than is imposed by the General Assembly for State purposes.”

Art. 170 reads: “ The regulation of the sale of alcoholic or spirituous liquors is declared a police regulation, and the General Assembly may enact laws regulating their sale and use.”

We cannot adopt the reasoning and conclusions of the learned and ingenious counsel of the respondents so fervently and religiously advanced in their interesting and eloquent brief. The limitation imposed by the Constitution upon the imposition of license by municipal corporations in the State is plain, express and unambiguous. The amount of license is fixed by legislative enactment and cannot legally be exceeded, and such excess cannot be collected or enforced by municipal authorities. The mode and manner in which the sale of alcoholic or spirituous liquors may be prohibited within the several parishes, are pointed out by law, and, on compliance with its terms, the voters may forbid such sale entirely within their parochial limits.

We construe Art. 170 as not controlling or even relating to the subject matter of licensing the sale of these liquors, but as relating to such police regulations as may tend to preserve order, to regulate the observance of sanitary requirements, to fix perhaps proper hours within which sales maybe made, and all other matters falling under the head of police regulations. We think the corporation of the parish of Concordia cannot impose a license fee higher than that imposed by the State on similar “ trades, professions, business, or calling.”

The judgment appealed from is affirmed with costs.


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    No. 8128.
    State of Louisiana vs. Jordan Horton.
    The aocused is not entitled to a continuance on account of the absence of a witness summoned, by the State.
    A remark made by the judge about a witness of the State, before any of the jurors are called or empannelled, could nob operate to the prejudice of the accused, and does not entitle him to a new trial.
    The words of a person present during the commission of the offence, uttered at that moment, are admissible in evidence as part of the res gestae.

    APPEAL from the Twelfth Judicial District Court, parish of Avoyelles. JBarbin, J.

      L. J. Ducoté for Defendant and Appellant.

      J. O. Egan, Attorney General, for the State, Appellee:
    First — The court will not grant a motion for a delay of the trial oí the ease because of the ahsonce of a State witness when the defendant has not summoned said witness, nor makes an affidavit that said witness is necessary to his defense, and what he expects to prove by the witness.
    Second — That all which is said at the time of the commission of the crime is a part of the res jestae, and is good evidenoe.
   The opinion of the Court was delivered by

Levy, J.

The defendant was indicted on the charge of burglarious breaking and entering, in the night time, a dwelling house, lawfully occupied, he being armed with a dangerous weapon, with intent to kill and murder.

He was found guilty by a jury and sentenced to hard labor in the State Penitentiary for the term of his natural life, and from the verdict and judgment thereon has appealed.

■ We find in the transcript two bills of exception, taken by the defendant to the rulings of the court a qua.

The first bill is directed to the ruling whereby the objection of defendant to go to trial, on account of the absence of a witness summoned by the State, who had never been summoned by the defendant; and further, to a remark or statement made by the judge a quo that said -witness could be easily dispensed with by the State, as she had perjured herself on the preliminary trial, as the written evidence taken on said trial would show.

The defendant had no right to a postponement of the trial on account of the absence of a witness who had never been summoned in his behalf, and as to the materiality of whose testimony no affidavit was made.

The bill itself discloses that the remark of the judge was made ¡before the jury had been called or empaneled. If the jury or any of its members had been empaneled the remark would probably have been calculated to operate to the prejudice of the defendant, but under the circumstances, we can see nothing to justify us in setting aside the verdict and judgment.

The second bill was taken to the admission of the testimony of two witnesses, who testified as follows : “ They both stated the fact, that, when the burglary occurred, and at the time of the assault, or immediately after the assault was committed, on Auguste Johnson, they both heard Susan Burrell say “ I know you Jordan Horton.” Defendant contended that this was hearsay evidence and should not be received; and further that the court had stated before the trial that Susan Burrell had perjured herself. These objections were overruled; “because, first, all that was done or said at the time of the assault and burglary, done or said by any one present, was a part of the ‘res gestes’ and was good •evidence; second, whatever was remarked by the court, before the trial, ■about one of the State’s witnesses, the defense oould not complain of.”

We find no error in any of these rulings. What was said or done, •especially in the presence of the defendant at the time of the alleged commission of the offense, constitutes a part of the res gestee and is ■admissible, it being mere proof of the fact that a certain thing was done, ■a certain occurrence took place, or a certain remark was made contemporaneously with the commission of the act charged.

Here, the fact of a declaration or exclamation being made at the time of the burglary and assault, in the presence of the accused, is all that the witnesses testified to; the truth or falsity thereof is not the question, and the testimony is only applicable to rem ipsam, as a contemporaneous fact forming part of the res gestes, and as such is admissible, just as any other contemporaneous physical occurrence could be proven.

The judgment appealed from is affirmed with costs.


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    No. 7793.
    Marguerite Villey vs. Louis Jarreau et al.
    Tn a suit "by a mortgage creditor to have a tax sale decreed null and void, and to have tlie property purchased from the tax collector, seized and sold in satisfaction of the mortgage, the purchaser sought to be evicted occupies the position of defendant in a petitory action and has the right to show any and all titlos under which ho holds the property.
    The question of the hypothecary rights of plaintiff against third persons, in such a suit, is prematurely presented and should be the object of another action.
    A suit in nullity of a tax sale is only prescribed in three years from the date of the sale.
    A tax sale may validly be made by a deputy of the tax collector.
    The written notice to the owner 05 his agent, prescribed by Act hfo. 47 of 1873, is an essential pre-requisite of the tax-sale, and, in its default, the sale is null and void.
    That informality may be taken advantage of by a mortgage creditor.
    A PPEAL from the Seventh Judicial District Court, parish of Pointe £X Coupée. Toist, J.

      A. L. Mahondeau and Oliver O. Provosty, for Plaintiff and Appellee.
    Heroes & Parlange and Edward Phillips for Defendants and Appellants.
   The opinion of the Court was delivered by

Levy, J.

Plaintiff instituted this suit on September 6th, 1876, alleging that she is a mortgage creditor of Sylvanie Braud, and seeks to annul a tax sale of land of said Braud made by the tax collector of the parish of Point Coupee on the 11th of October, 1873, to John E. Breaux. She represents that the property sold by the tax collector was mortgaged by said Braud in her favor by act of mortgage, of date 2nd April, 1859, duly recorded on that day, to secure a note of said Braud in her favor for the sum of $2480, payable on 18th April, 1863, bearing eight per cent, per annum interest from 18th April, 1859; that a suit was brought by her against Braud, and judgment therein was rendered in her favor on the 6th of April, 1867, for the said sum of $2480, with interest as set forth, subject to a credit of $80 55, with recognition of her special mortgage on said land, and ordering said judgment to be-enforced on the same; that said judgment was duly recorded on the 19th of April, 1867. She avers that the adjudication of said land toBreaux, and the transfer to him by the tax collector,'made on the 16th of October, 1873, are null and void for the following reasons : Because, 1st. No notice has ever been given to said Sylvanie. Braud to pay said taxes. 2nd. No notice has been served on any duly authorized agent of said Braud to pay said taxes, he being a non-resident of the parish of Point Coupee. 3rd. The plantation was sold before the expiration of the three advertisements in the official journal of the parish, as-required by law. She further avers that said adjudication and transfer cannot affect her mortgage, and that she has a right to have the same annulled, set aside and cancelled, and the said plantation seized and sold to satisfy the amount of her judgment, with interest and costs/ She prays that said adjudication and transfer by the tax collector be declared null, void and of no effect, so far as her mortgage is concerned,that the defendants and all persons claiming under them be perpetually enjoined from asserting any title thereunder to said land, to the detriment of the special mortgage thereon claimed as existing in her favor, and that the same be seized and sold to satisfy the payment of the sum above mentioned.

Bernard Dayries (the tax collector), John E. Breaux, the purchaser at the tax sale, and Louis Jarreau, transferree of Breaux of portion of the land, were made defendants in this original petition, and by supplemental and amended petitions, the administratrix of Jarreau and John B. Brown, transferree of Jarreau of portion of the land, were also-made parties defendants. In an amended petition she also alleged a an additional ground of nullity, that the tax collector was one styling himself deputy tax collector, and that he. had no legal authority to-make the seizure and sale of the land.

A peremptory exception was filed, demanding the dismissal of the suit, on the ground that if plaintiff has any mortgage it is a legal or judicial mortgage, and not a conventional or special one, and, therefore, could only be enforced by hypothecary action; that said mortgage was inscribed on the 2nd of April, 1859, and had never been reinseribed. :She also pleaded the prescription of two years. This exception and plea of prescription were overruled. It was admitted on the trial that the mortgage of 2d April, 1859, had never been reinscribed. The evidence •discloses also that the judgment referred to, which was signed on the >6th of April, 1867, was revived on the 13th of April, 1877, the revival to take effect from the 3rd of April, 1877, the service of citation and of the petition of revival having been on the defendant, Braud, on this last-mentioned day; also, it appears that the judgment rendered on 6th April, 1867, was duly reinseribed on the 20th March, 1877.

The answers of defendants reiterate the defenses set up in the exception, deny the informalities and invalidities of the proceedings alleged in the petition, but aver that they were in all respects good and •sufficient, and divested Braud of any rights he may have had in said land, and vested Breaux, the purchaser, with such rights; that the alleged informalities, if any existed, merely affected rights so purely personal to Braud, that he (Braud) could alone legally complain of them. Further, that the lands mentioned in the petition were the property of the United States and part of the public domain, until duly selected by the State of Louisiana under the act of Congress of May 20th, 1826; that they were duly selected and the selection approved, and remained the property of the State of Louisiana until the 12th of November, 1866, when, by patent, duly issued, the same was acquired by C. W. Allen from said State, and Allen, on the 17th November, 1866, sold the same, by duly recorded act, to N. B. Adams, who, on the 10th of August, 1877, by authentic act, duly recorded, sold them to the defendant, Breaux; that Ureaux and those who have title under him now are, and since October, 1873, have been, in the full and actual possession of the lands described in the petition, and the said Sylvanie Braud abandoned the possession of any portion of them many years since. They pray for judgment rejecting plaintiff’s demand and decreeing that the alleged mortgage •does not have operation or effect on said lands.

Plaintiff introduced in evidence on the trial the titles of Braud to these lands, being acts of sale from Bara and Sicard, duly recorded, respectively dated in April, 1856, and April, 1857; the mortgage from (Braud to Yilley duly recorded on April 2nd, 1859; the record of the suit, No. 950, with certificates of the registry of the judgment therein on April 17th, 1867, and March 20th, 1877; judgment of revival of the (judgment in No. 950 taking effect on 3rd of April, 1877; registry of the judgment of revival made on 30th April, 1877; copy of notice of •seizure by tax collector on J. B. Blanchard, made 21st August, 1873, ¡and copy of record of seizure in mortgage book, dated 11th September, 1873; sale of the land to Breaux, made October 16th, 1873, and copies of extracts from the assessment rolls of 1869, 70, 71, 72, giving description of the property of Brand, where situated, and number of acres.

On the part of the defense there was offered the following evidences 1st. Patent from the State of Louisiana to Allen. 2nd. Act of sale-from Allen to Adams. 3rd. Act of sale from Adams to Breaux. 4th. Certificate of register of the land office of December 24th, 1860. 5th Cerfcificate of same of September 1st, 1877. 6th. Communication of Commissioner of U. S. General Land Office to Thos. O. Moore, Governor of Louisiana.

Plaintiff objected to the introduction of this evidence, which objection was sustained by the Court a qua, and it was excluded. This evidence was offered by defendants for the purpose of showing that Sylvanie Braud, the alleged mortgagor, never had title or right to the-land described in the petition, and for the further purpose of establishing title in the defendant, Breaux. The court sustained plaintiff’s objection on the ground “that such testimony would change the issues- and purposes of this suit; that this was a suit merely to annul a tax title, and that it would be soon enough for defendants to assert a superior title to that of the mortgagor, when the mortgagee attempted- to seize the land upon her mortgage.” To this ruling of the court defendants-took a bill of exceptions. They also took a bill of exceptions to the ruling of the court admitting testimony tending to show any of the-alleged informalities in the tax sale; defendants objecting to its admission on the ground that such informalities could only be urged by Sylvanie Braud, the alleged owner of the property, this right being-purely personal to him.

There was judgment in the court below in favor of plaintiff, decreeing that the adjudication and transfer by the tax collector to John EBreaux on the 16th of October, 1873, to be null and void, in so far as-the same affects or stands in the way of the execution of the mortgage of 2nd April, 1859, in favor of plaintiff, and the judgment of 6th May, 1867, and revival of same of 13th April, 1877, enforcing the same; recognizing said mortgage securing the debt of $2480, less the credit of' $80 55, and ordering the seizure and sale of said land to satisfy same. From this judgment defendants have appealed. This action is one of nullity as to the tax sale, coupled with a demand for recognition of mortgage, and for the subjection of the mortgaged property to seizure and sale to satisfy the mortgage debt, this mortgaged property being held and claimed by a third possessor. This demand cannot be regarded as constituting an hypothecary action proper, because none of the allegations necessary in such action have been made, nor have the prerequisites of such action been complied with, or even alleged to have-been complied with.

As to the defendants, besides the action to annul the tax sale, under which plaintiff alleges that they hold the property, their title to the land is questioned, and as a mortgage and judgment creditor, plaintiff seeks to have the title declared to be in her mortgagor in order that she may subject it to the operation of her mortgage. Defendants then clearly occupy the position of defendants in a petitory action, and are entitled to urge any and all titles under which they claim'. Occupying such status, we think they have the right to introduce evidence supporting their claim to the land and should not be confined to the tax title sought to be annulled. One may hold property under several, titles, and a defect in one does not vitiate the others. We think the exception of defendant to the ruling of the court a qua, excluding the patent and other evidence offered, was well taken and ■ the evidence should have been admitted. Plaintiff was not content with attacking the validity of the tax sale and seeking to have it declared null, but by his other demand practically assailed the right of ownership of defendant and put at issue his right and title to the land. He tendered the whole issue; it was accepted, and he cannot narrow it or shrink from the contest which he has brought on, and while attacking the whole person of the defendant, confine him in his defense to the protection of one part or one member of his body.

The plea of prescription made by defendant cannot be maintained. Section 5 of Act No. 105, approved March 28th, 1874, declares that “ any action to invalidate the titles to any property purchased at tax sale, under or by virtue'of any law of this State, shall be prescribed by a lapse of three years, from the date of such sale.” The sale took place on the 11th of October, 1873, and citation was served in this suit on the 11th September, 1876. The. three years had not elapsed. The existence of the conventional mortgage, or its peremption as to third persons, by reason of failure of reinscription, under the views which control us in our disposition of this case, are questions not necessary to be passed upon now. If plaintiff should seek to enforce his hypothecary rights, they would then be proper matters for consideration if opposed. In this ease we confine ourselves alone to the question of the validity of the tax sale, and setting that aside, the claims affecting the ownership of, and mortgages resting upon the property, can be litigated in other actions.

The proceedings of the tax-collector were had under the Act of 1873, No. 47. The grounds of nullity of the sale of October 11th, 1873, urged by plaintiff, are : 1st. The sale was made by a deputy of the tax-collector, who was without authority of law to make such sale. 2d. No notice was served on the owner or his agents. 3d. No sufficient description of the land was recorded. 4th. The sale was not advertised in the manner required by law.

As to the first ground, it is insufficient. We think the act of the deputy tax-collector in making or signing the sale was the act of the tax-collector, which was recognized and ratified by the State through her proper officer, the Auditor. ¿Sd. The description of the land in the assessment, record and advertisement, were sufficient and definite, indicated by boundaries, location, etc. 4th. The advertisement was inserted in the newspaper, the official journal of the parish, three times, the last insertion being on the day of sale. There is no evidence that the last publication was subsequent to the sale; on the contrary, the act of sale declares, with particularity, that the publications were made on three days enumerated, as 27th September, 4th and 11th of October, the sale taking place on the last named day.

The second ground, however, is a serious one, and the defect complained of fatal. The law, by virtue of which the seizure and sale of the property could be made, required the tax-collector “to give ten days written or printed notice to the owner or agent of the property assessed to pay said tax, after which delay, if not fully paid; the said tax-collector may make a seizure of such property,” etc. It is proven, as shown in the record, that Sylvanie Braud, in whose name the property was assessed, was not a resident of the parish of Point Coupee, in which the land was situated; that Blanchard, on whom the notice was served, was not his agent, and that Braud had no agent in the parish. Hence, the necessary ’service, an essential pre-requisite to seizure, was not made. Sec. 5 of the same law requires that “ when the owners are unknown or absent, and have left no known agent,” on application of the tax-collector, the judge shall appoint a curator ad hoc, upon whom notice shall be served. Braud was a non-resident of the parish, absent therefrom, without domicil therein, and had left no known agent, and under these circumstances, the only valid notice could be given to a curator ad hoc appointed by court. This was not done. This Court has frequently held that non-compliance with the statutory requirements and preliminary acts as to tax sales operates to vitiate such sales. 4 La. 150, 207; 18 La. 514; 14 An. 209. See, also, Blackwell vs. Tax Titles, p. 50; Cooley on Taxation; Burroughs on Taxation; 12 An. 748; 14 An. 209; 10 An. 771; 28 An. 17, 537; 29 An. 508; 32 An. 925.

For the reasons which we have given above, we think the judgment of the lower court should not be maintained.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, in so far as it recognizes the mortgage in favor of the plaintiff, Marguerite Villey, and the judgments enforcing the same, and decrees the seizure and sale of the mortgaged land to satisfy the same, and be amended, so as to decree, as is hereby done, the adjudication and sale of said land made by the tax-collector of Point Coupée parish to John E. Breaux, on 11th of October, 1873, to be null and void, and of no effect whatever; and it is further ordered that this cause be remanded for the purpose of trial •and adjudication of the claims of the parties as to hypothecary rights, or those of ownership of the property seized; appellee to pay the costs of both courts.


author: Fenner, J.

text:
    No. 8198.
    Heirs of J. D. & H. B. Balfour vs. L. G. Balfour.
    -An agreement between Plaintiffs and Defendant, entered into in December, 1873, by which the latter was to pay the former, as part of a certain compromise I'etween them, the sum of 8600, as their half of the rents for the yean 1873 of a plantation belonging jointly to the parties, does not constitute a lease and cannot be the basis of the tacit reconduction for subsequent years.
    "The joint proprietor óf a plantation who cultivates half of it for his own account, without preventing his co-proprietor from occupying and cultivating the other half, is not liable to the latter for rent of the common property. Affirming decision in Becnel vs. Becnel, 23 An., 150.
    APPEAL from the Eighth Judicial District Court, parish of East Oar-roll. Delony, J.

      Chas. Pilcher for Plaintiffs and Appellants:
    First — That plaintiffs and defendant were undivided proprietors of the effects of the succession of their common ancestor, ‘W. B. Balfour, for the part or portion coming to each, of them, which, amon'g them, forms as heirs a community of property as long as it remains undivided. B. C. G. 1292.
    ^Second — That plaintiffs’ interest in the Ayrie plantation, belonging to the said succession, being recognized and fixed by defendant as one undivided balf interest of said plantation, they were entitled to one-half of the rents or revenues of same, which iormed a community of property so long as the said plantation remained undivided. B. C. C. 3292.
    'Third — That, as owners in common with defendant of said undivided interest, plaintiffs were authorized to* lease to defendant their said interest, for a certain price, in lieu of their one-half interest in the revenues of said plantation. That said lease of the said undivided interest in the said plantation continued beyond the year in which it was made, and from year to year thereafter, until the final partition of the plantation.
    Fourth — That by reason of the facts that defendant continued to occupy the dwelling and other improvements belonging to the whole plantation, after the first year had expired, and without notice to plaintiffs of his varying terms of his original lease, there was a tacit recondnction of the agreement of lease from plaintiffs to defendants, of their undivided one-half interest in said plantation, for the years 1874, 1875,1876, 1877 and 1878, and that defendant is hound for same. 2 B. B. 161, 404 ; 6 B. 262 ; 1 An. 17; 5 An. 302; 9 An. 504; 20 An. 190; 21 An. 743.
    Fifth — That the relation of plaintiffs and defendant to each other, as joint owners and co-proprietors of the capital (i. e. the rents), which proceeded from the plantation which they held iu indivisión, being thereby governed by the law of partners, the plea of prescription canuot prevail. Pothier, Obligations, vol. 2, p. 100; 3 L. B. 551; 10, An. 221; 2t. O. C. 2890 ; 12 An. 354 ; 14 An. 740, 742; 16 An. 170. •

      W. G. Wyly and J. M. Kennedy for Defendant and Appellee:
    Defendant maintains that:
    A joint owner, who uses no more than liis share of the common property, in the absence of a¡ lease or an agreement to pay rent, owes no rent to his co-proprietors. 23 An. 150, Becnel vs. Becbnel; 26 An. 255; 23 An. 502.
    A reconduction of a contract of lease is itself a contract, made so by operation of law; there can be no reoonduction without there first being a conventional lease, and without the lessee having occupied the leased premises after the first contraes had expired. C. C„ 2688 and 2689.
    The prescription of three years applies to claims for rent on open account. O. C. 3538; 24 An. 73; 22 An. 581; 1 An. 211.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiffs, for one undivided half, and defendant, for the other undivided half, were joint owners of the Eyrie plantation, in the parish of East Carroll, from December 1st, 1873, when plaintiffs acquired their half interest by conveyance from the defendant, to the year 1879, when there took place a judicial partition between them.

Plaintiffs, in their petition herein, aver that in the deed by which defendant sold to them the half of the plantation, he stipulated “ to-pay them six hundred dollars as their half of the rents of said place during the then current year, 1873; that the said Balfour has been in possession of their undivided interests, and has enjoyed tlie use of same, and is indebted to petitioners the rent of said interests during the years 1874-5-6-7 and 8, which were well worth the sum of six hundred dollars per annum,” for which sums they claim judgment against defendant.

The evidence, affecting the decision of the case, consists of—

1st. The deed from defendant to plaintiffs, dated December 1st, 1873, wherein the former conveys to plaintiffs the undivided one-half interest, the consideration of which transfer is declared to be the compromise of certain claims asserted by plaintiffs against the plantation for legacies left them by the will of the common father of plaintiffs and defendant, the amount'of which claims was, by the compromise, fixed at ten thousand dollars. The deed further recites that “in consideration of the said sum of ten thousand dollars so due them, and in consideration of a compromise and settlement, etc., etc., he, the said L. G-. Balfour, makes the above sale, transfer and conveyance, and agrees to pay to said parties the sum of six hundred dollars as their half of' the rents of said place during the current year 1873, they paying one-half of the taxes of the current year on said property.”

2nd. The following admissions by the parties, viz.: that the rent of the entire plantation was worth $1200 per annum during the years-1874-5-6-7 and 8; that defendant occupied the dwelling-house on the plantation during the years mentioned; but that his co-proprietors did not offer or seek to occupy any part of the joint property; and that defendant never cultivated more than one-half the plantation, and never, at any time, used more than one-half of it in any way.

I.

Counsel for plaintiffs, in his argument in this Court, basis the right of recovery mainly upon the proposition that the clause quoted above from the deed of conveyance, touching the-rents of 1873, is evidence of a contract of lease for that year, which lease was continued from year to year by tacit reconduction, during the whole term of defendant’s occupancy.

It would require great liberality of construction to reconcile this, position with the allegations of plaintiffs’ petition, which seem very clearly to rest their demand, not upon a contract, but upon a quantum, meruit.

It is not necessary, however, to consider this question too nicely, because, even if properly pleaded, the position is not maintainable • under the evidence. It is self-evident that the existence of a'distinct contract of lease is a necessary condition precedent to the tacit reconduction thereof.

The Code defines the lease of a thing to be “ a contract by which one of the parties binds himself to grant to the other the enjoyment of a thing during a certain time for a certain stipulated price, which the-other binds himself to pay him,"

An agreement to pay a certain sum for the past enjoyment of a thing, which had not been held under any contract of lease express or-implied, is not a lease.

The deed was only executed in December of 1873. Prior to that-' time defendant held as owner, with title admitted on the face of the deed. He agreed to pay them $600, not as rent due by him as a lessee, but as their half of the rents of the place during 1873, the term being the evident equivalent of revenues or rents from others to whom the place might have been possibly leased by him. The consideration of the payment is not the enjoyment of the thing, but is expressly stated,., in the deed itself, to be the compromise and the $10,000 due them thereunder.

The contract presents no element of a lease, and the claim of reconduction has nothing to rest on.

II.

If, on the other hand, plaintiffs’ claim be treated as an equitable-demand, on a quantum meruit, founded on a quasi contract, the case falls precisely within the sound and equitable doctrine of Becnel vs. Becnel, 23 An. 150. There, upon a state of facts identical with those •here presented, the Court said: “It is not pretended that the defendant dispossessed plaintiff, or in any manner interfered with the enjoyment of her proprietary interest, or that he cultivated an amount more than equal to his half of the plantation. * * The defendant, having merely administered his proprietary interest, without in the least impairing the •right of his co-proprietor likewise to use and enjoy hers, cannot fairly be said to have undertaken, of his own accord, to manage the affairs -of another, * * incurring all the obligations of an express agency. C. C. 2274.”

This is common sense, and good law. Because some part-owners of a plantation, which, unless occupied and cultivated, runs to ruin, choose •to abandon it, their co-proprietor cannot be prevented from administering his interest therein for its preservation and his own profit; and as long as the former abstain from asserting their rights and he interposes no opposition to their enjoyment of them, they have no legal claim •against him.

The District Court administered complete justice; and the judgment appealed from is, therefore, affirmed, plaintiffs appellants to pay -costs of their appeal.


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    No. 7823.
    Mrs. Zulmé E. Hearsey and Husband vs. William S. Booth, Sheriff, et al.
    In actions to enjoin tlio execution of judgments, as between tlie parties themselves, tlie jurisdiction of this Court depends on the amount of the judgment enjoined, and is not aided by the value of the property seized, or by the amount of the damages claimed by the appellant.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. McVea, J.

      B. W. Knickerbocker for Plaintiffs and Appellants.

      E. W. & S. Bobertson for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

This is a suit for an injunction restraining the execution of a writ of fieri facias, issued on a twelve-months’ bond for the ¡sum of $526 28, with eight per cent, interest from June 6th, 1874, subject to a credit of one hundred and seventy-five dollars, of date Decem■..ber 20th, 1875. Plaintiff alleges that the sheriff, under said writ, has seized real estate belonging to her exceeding $4000 in value,, and also claims $1000 as damages for injury “in health, peace of mind, loss of time from business occupations, trouble to institute this suit, vexation and inconvenience in framing this injunction and furnishing bond.”

The fictitious character of the damages claimed is apparent from the statement of the elements thereof, taken, as above, from the petition.

Aside from this, however, it is settled that in actions to enjoin the-execution of judgments, as between the parties thereto, the jurisdiction of this Court depends on the amount of the judgment enjoined, and is-not aided by the value of the property seized, or by the amount of the-damages claimed by the appellant.

The reason of the doctrine is well explained in Cushing vs. Sambola, 30 A. 426. See, also, 12 A. 784; 14 A. 73; 16 A. 47; 21 A. 307.

It is, therefore, ordered that this appeal be dismissed at appellants’ cost.


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    No. 6598.
    Union National Bank of New Orleans vs. Succession of Thomas B. Lee.
    An endorser who does not' specially deny Ms signature on a note, will be considered as having admitted it, under the rule of Article 2244, C. C.; and the Plaintiff is dispensed with the necessity of proving it on the trial of the case.
    The endorser, who waives protest and notice before maturity, binds himself absolutely by a new contract, and payment of interest by Mm will interrupt prescription, as to him, even if the drawer’s obligation were extinguished by prescription.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      B. F. Jonas for Plaintiff and Appellee:
    “ Defendant who pleads the general issue without confessing or denying his signature, is considered as having confessed it.” 8 N. S. 300; 1 La. 488 j 2 La. 420 ; 5 La. 33; 14 La. 361; 19 La. 86-88; 8 La. 312.
    Where the endorser of a check writes over his name, “I waive demand of payment of this note on the maker on the day of maturity, and I waive protest thereof, and notice of demand and protest, and hold myself liable as endorser in the same manner as if demand, protest and notice will have been made the day of maturity,” such an endorser is not entitled to require any demand of the maker of the note, or notice to himself of non-payment, as conditions precedent to his liability. Such a waiver has the effect to dispense with the necessity for those formalities. Story on Promissory Notes, § 273; Daniel on Negotiable Instruments, vol. 2, § 1090.
    Where the date of the maturity of a promissory note for $10,000 is January 1, 1870, and it appears that fourteen months thereafter, March 1,1871, interest on the note to January 1-4,, 1872, was paid by the endorser, and it appeared further that suit on the note against Ms executrix was filed April 13,1875, and personal service obtained April 14,1875, the plea of prescription of five years by the executrix in bar of tbe, suit, is not maintainable.

      > Jas. II. Grover for Defendant and Appellant:
    Where suit is brought by the third holder of a promissory note, against the endorser, the signature of the endorser must be proved. 24 An. p. 1X8.
    'The discharge of the drawer has discharged the endorser.
    'The endorser paid interest in ignorance of the maker’s discharge by prescription, and through the laches and neglect of the holder in not causing an interruption of prescription.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff sues on five promissory notes of ten thousand ■dollars each, drawn on July 3d, 1866, by R. C. Cummings to the order of Thomas B. Lee, and,endorsed by him, maturing respectively on the first of January, 1869,1870,1871,1872 and 1873.

Citation was served on the executrix on the 14th of April, 1875.

The defense is a-general denial and the plea of prescription of five years.

The District Judge gave judgment of nonsuit on the note maturing January, 1869, on the ground of want of protest and notice of protest, and gave judgment in favor of plaintiff on the four other notes. Defendant appeals. On appeal the executrix urges that the judgment was rendered on insufficient evidence, for the reason that plaintiff offered no evidence of the signature of Thomas B. Lee, the endorser, and her •counsel quotes several authorities in support of this position.

But the decisions on which he relies were rendered in cases where judgment was by default, in which plaintiff is absolutely required to prove his demand. C. P. 312. The effect of those decisions does not controvert the rule laid down in Art. 2244 C. C., providing that the per■son against whom an act under private signature is produced, is obliged formally to avow or disavow his signature. In this case, defendant having filed a general denial and the special plea of prescription, she should have specially denied the signature of Lee, the endorser, in the absence of which her silence must be construed as admitting said signature. Such is the interpretation given to this article by the Supreme Court in the case of Maxwell vs. Kennedy, 10 An. 798, and we shall adhere to this ruling.

The notes maturing in 1871,1872,1873, were not prescribed on their faces when this suit was filed, and cannot be affected by the plea of prescription, which plea, as to these notes, is formally abandoned in this Court by defendant, thus limiting the issue to the note maturing January, 1870.

That note is in the following words, and contains the following endorsements:

“$10,000. Bossier Parish, July 3d, 1866.
On the 1st January, 1870, I promise to pay to the order of T. B. Lee, ten thousand dollars, value received, with 8 per cent interest after maturity. R. C. Cummings.
U. S. Int. Rev. stump, 85. ) j Ne varietur. July 3, 1866. (Canceled.) j | M. P. Long, Notary Public.
(On face of Note.)
Interest on this note paid by the endorser, Thos. B. Lee, to 1-4 .Jan’y, 1872. New Orleans, March 1; 1871.
Thos. B. Lee. Jno. A. True & Co.
(Over) Endorsed — Thomas B. Lee.
Cummings, Brown & Co.
New Orleans, December 21, 1869.
I waive demand of payment of this note on the maker, R. C. Cummings, on the day of maturity, and I waive protest thereof and notice of demand and protest, and hold myself liable as endorser in the same manner as if demand, protest and notice will have been made on the 4th January, 1870, the day of its maturity. Thos. B. Lee.”

Defendant contends that tbe note being prescribed on its face, and no interruption of prescription having been proven against the drawer, he is discharged, in consequence of which the endorser should likewise be discharged, notwithstanding his acknowledgment of indebtedness by the payment of interests on the 1st of March, 1871S as shown by a written statement on the face of the note.

We hold that by his waiver of demand and of notice of demand before the maturity of the note, he bound himself as firmly as the law would have bound him by formal protest and notice of protest at the maturity of the note. Story on Promissory Notes, p. 841, $ 271 and 273; Daniel on Negotiable Instruments, vol. 2, § 1090.

The payment of interests which he made on the 1st of March, 1871, interrupted prescription which, after such payment, would have accrued only in March, 1876. The endorser having by his waiver of protest bound himself absolutely for the payment of the note, is held under a new contract, and his obligation cannot be affected by the alleged discharge of the maker.

Defendant urges that the endorser paid interest in ignorance of the maker’s discharge by prescription. But the fact that such payment was made on the first of March, 1871, only fourteen months after maturity of the note, utterly destroys this pretension. We conclude that the plea of prescription is clearly and absolutely untenable, and that the endorser is legally bound on this as well as on the three other notes.

We, therefore, see no error in the judgment of the lower court, which is affirmed with costs.


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    No. 7691.
    Heirs of Amos Adams vs. Heirs of J. B. Starks et al.
    This is an Appeal from a judgment decreeing the nullity of a tax sale of a tract of land.. ÍTothing in the Record shows the value of the land. The Appeal is, therefore, dismissed.. It must appear affirmatively and clearly, from the amount of the matter in dispute, that this Court has jurisdiction.
    APPEAL from the Fifth J udicial District Oourt, parish of East Baton Rouge. Me Vea, J.

      J. & G. W. Burgess and G. B. Favrot for Plaintiffs and Appellees.

      Sam’l P. Greves and T. B. Dupree for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

Plaintiffs sue for the nullity of a tax sale of a tract of land, pwned by their ancestor, in the parish of East Baton Rouge, and sold for taxes on the 2nd day of May, 1870.

From a judgment decreeing the nullity of such tax sale, and recognizing plaintiffs as the lawful owners of the land in controversy, defendants have taken the present appeal.

Our attention is called by appellees’ counsel to the fact that nothing in the record shows the value of the land in suit.

After a diligent search throughout the whole record, we have been, unable to find any allegation either in the petition or answer, any evidence or any affidavit tending to show that the amount in dispute in this case exceeds one thousand dollars.

At the tax sale of the land in May, 1870, it was adjudicated for the sum of three hundred and seventy-five dollars, a circumstance which strongly points to our want of jurisdiction over the cause.

Defendants’ counsel suggest that a tax sale should not be used as a test of the value of lands sold in such proceedings. If the sale is sufficient to convey to them a good and valid title to the land, it should certainly be used as a test of the value of the lands on the market at that time, in the absence of any evidence to the contrary. They call our attention to a sheriff’s sale of the same lands in 1845 for four thousand dollars, and suggest that that sale should be the criterion of the value of the property in litigation.

But they lose sight of the immense and painful depreciation in the value of real estate in Louisiana, which has marked the history of our State during the thirty-six eventful years which have rolled by since the date of that sale. It is not a violent presumption to suppose that these lands have shared the fate of the many princely estates of these prosperous times, which have now little or no value.

But be that as it may, under the constitutional provision which defines our-jurisdiction, such jurisdiction must appear affirmatively and clearly, and cannot be left to presumption or conjecture.

It was incumbent on the appellants, in some of the modes pointed . out by law, to show conclusively that the amount in dispute in their appeal was of an amount sufficient to vest us with jurisdiction, which we cannot, and will not, assume in the absence of such proof.

We have had occasion in several decisions to construe and apply the constitutional provision defining and limiting our jurisdiction, and we must adhere to a rule which we consider clear and unambiguous. See cases of Wilkins vs. Gantt, 32 An. 929; Thompson vs. Lemelle, 32 An. 932; Testard vs. Belot, 32 An. 604.

In this case it is not shown that the amount in dispute exceeds one thousand dollars, and we, therefore, conclude that we have no jurisdiction.

It is, therefore, ordered that this appeal be dismissed at appellants’ costs.


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    No. 8185.
    Emile Cloutier et al. vs. R. E. Lemée, Provisional Syndic, et al.
    The duties and powers of the syndic of an insolvent succession are the same as those of syndics of insolvent debtors; he must preserve the assets under his charge from loss by prescription; and for that reason, he is authorized to issue execution on a twelve months bond.
    The illegality of his appointment cannot be inquired into collaterally and does not affect the validity of his official acts. Previous Decisions affirmed.
    The acknowledgment of a debt by the administrator of a succession suspends prescription during the entire pendency of the administration. Reaffirming previous Decisions.
    Seizure and notice, under execution of a twelve months bond, interrupts prescription, as in cases of executory process.
    APPEAL from the Eleventh Judicial District Court, parish of Natchitoches. Pierson, J.

      C. Chaplin and Wm H. Jack for Plaintiffs and Appellees:
    Kirst — Laws of prescription are in their very nature arbitrary and against equity, and cannot Re relaxed except under positive law providing for interruption and suspension; there are no legal causes of interruption or suspension except those incorporated in the Civil Code.
    Second — The acknowledgment of an obligation by an administrator only interrupts prescrip- * tion, hut does ijiot suspend it; that his acknowledgment as a fiduciary should have greater effect as against the estate of a deceased person than the acknowledgment of that person himself if alive, is opposed to law and good reason.
    Third — The doctrine of “ contra non velentem ” was never a principle of our elementary law, and has properly been eliminated from onr jurisprudence.

      Watkins & Scarborough and E. E. Buckner for Defendants and Appellants:
    Eirst — That all the plaintiffs are equitably barred and estopped from assailing the title of Ambrose Deblieux at syndic’s sale on January 6th, 1872, having stood by when the sale was made, and having acquiesced therein for several years since.
    Second — That three of the plaintiffs, viz: Emile Cloutier, Ambrose Deblieux and Eulberfc Cloutier, are equitably bound and estopped from introducing evidence tending to defeat the said syndic’s sale — Deblieux being the adjudicator, and Emile Cloutier and Eulberfc Cloutier having acquired title from, and now being in possession under, him, of the lands claimed, 15 A. 648; ÍH.S. 577; 4E S. 402; 8 La. 237; 4 A. 250; 1 R. 369 ; 5 A. 677.
    Third — Mere illegality in the appointment of an administrator or syndic, will not vitiate the acts done under it. The acts of the officer in such case are valid, although he should have been illegally appointed. 32 A. 364, Altemus' succession.

    Eourth — Illegality in the act must be alleged and proved. 30 A. 268, Succession of Du gar t; 32 A.-Run ovan vs. Parker. In case at bar, the provisional syndic is enjoined from collecting an asset ol' the estate, not from alienating its property.
    Eifth — The forms and duties of provisional syndics are defined. R. S. 1793; and among them is the right to demand and receive “all the claims of the insolvent debtor.” 13 R. 28, Bradley vs. Creditors. Under the law and the facts of this case there can be no question of Lemee’s “power or authority,” as provisional syndic, and of the regularity of his proceedings. C. P. 990, 719 ; C. C. 1224, 1225.
    Sixth — A twelve-months’bond “is a written obligation to pay a person therein named, absolutely and unconditionally, a certain sum of money at a specified time,” and are subject to the prescription of promissory notes. Ghastantvs. Strong, 22 A. 410; Bank of Louisia/na vs. Williams, 21 A. 121. That the fu fa. issued under a twelve-months’ bond is controlled by laws governing executory proceedings, and a seizure under it interrupts the period of prescription acquired at that date, and keeps same continuously interrupted during its hold on.the property seized. That this is analogous to a pledge. C. C. 3578; 20 A. 192; Walker vs. Lee, 22 A. 152; 23 A. 215; 21 A. 155, 32.
    Seventh — That the institution of injunction suits against the execution of thejfi. fa., enforcing the twelve-months’ bonds, has the effect to continually suspend prescription on the bonds. Scarborough vs. McCall, 4 A. 322.
    Eighth — That the note of Marco G-ivanovitch against E. E. Cloutier and J. B. Cloutier, Sr., in solido, was not prescribed at the date of the syndic’s sale, in January, 3872. Plaintiffs allege it was at that date, in order to destroy that sale which produce these bonds. Defendants claim that the acknowledgment of the debt by E. E. Cloutier, on the 8th of July, 1865, interrupted prescription, and that the contemporaneous acceptance of the debt suspended prescription afterwards; and during the time the heirs of deceased permitted the property to remain in the hands of the trustee. C. O. 3552; 22 A. 107, Police Jury vs. Daralde; 22 A. 117; 21 A, 128; 23 A- 2Ú4, Citizens’ Bank vs. Amans; 23 A. 199, Blanc vs. Herfczog; 23 A. 447, Baklam vs. Henderson; 30, A. 673, Sewell vs. MoTay; 30 A. 853, Renshaw vs. Stafford; 2 A. 925 $ 3 A. 531; 1 R. 556; 8 R. 145; 11 R. 183; 29 A. 495; 11 R. 348; 32 R. 155; 1 A. 365; 30 A. 858; Mariat vs. G-uilbrau, 31 A. 713 ; Heirs of Porter vs. Hornsby, 32 A. 337.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiffs, as heirs at law of J. B. Cloutier, Sr., deceased, joined by Ambrose Deblieux, principal obligor on the twelve-months’ bonds hereafter named, are actors in this suit to restrain the seizure and sale of a plantation under a writ of fi. fa. issued on two twelvemonths’ bonds executed by Ambrose and Marzalie Deblieux in favor of A. H. Pierson, syndic of the creditors of the succession of J. B. ■Cloutier, Sr.

The heirs allege that they are owners of the property seized in virtue of their heirship; that the same was sold under order of court •provoked by A. H. Pierson as syndic of the creditors of the succession ■of Cloutier, Sr., at the instance of pretended creditors of said succession; that, at the time when Pierson was elected syndic, and at the date •of the order, and of the sale, there were no creditors of said succession; that the sale thereof was consequently unnecessary and illegal; that they had not authorized the existing provisional syndic to issue execution on the twelve-months’ bonds, and deny his authority so to do. 'They cite the provisional syndic, the sheriff, and the persons claiming to be creditors, averring that their claims had all been extinguished by prescription prior to the qualification of Pierson, as syndic, and prior to the sale under which the twelve-months’ bonds were executed. They pray for an injunction, and for judgment perpetuating the same, de-claring the claims of the defendant creditors to be prescribed, annulling the sale of the property and the twelve-months’ bonds; and ordering the property to be returned to the succession, and recognized as the property of the heirs.

Ambrose Deblieux also pleaded the prescription of five years against the twelve-months’ bonds.

Upon proper issues joined, there was judgment in favor of the provisional syndic and of one of the creditors, Marco Givanovitch, and against the plaintiffs, rejecting their demand and dissolving the injunction, and reserving the rights of the other creditors and of the heirs to urge and contest their claims on the tableau when filed.

Prom this judgment, plaintiffs have appealed.

The questions presented are three, viz:

1st. The power and authority of the provisional syndic to issue execution on the bonds.

His duties in administration are the same as those prescribed for . syndic of insolvent estates.

O. O. 1225.

These duties include that of demanding and receiving all claims •which may become due during his administration. B. S. Sec. 1793. As matter of course, he must take necessary steps to preserve the property oonfided to his care, under penalty of responsibility on his bond. Had he abstained from taking legal proceedings on these bonds, and suffered -them to become prescribed, he and his sureties would be bound.

Inquiries touching the legality of his appointment are irrelevant. While actually exercising the office he must perform its duties, and the illegality of his appointment will not vitiate such acts.

Estate of Altemus, 32 An. 364.

Succession of Dugas, 30 An. 268; 21 An. 643; 10 An. 670; 5 An 156, 161.

The claim by the heirs of the right to control and direct his action,, as being the only parties interested, necessarily depends upon the solution of the succeeding questions.

2nd. Has the succession creditors, or were their claims extinguished by prescription prior to the sale of the property ?

In the present proceeding this controversy is confined to the claim of Givanovitch, in whose favor the judgment appealed from was rendered.

His claim is on a solidary note of the decedents, J. B. Oloutier, Sr., and E. E. Oloutier, due March 1st, 1861.

Oloutier died, his succession was opened, and J. B. Oloutier, Jr.,, was duly appointed and qualified as administrator.

On July 8th, 1865, E. E. Oloutier, the surviving obligor, endorsed on the note and signed a formal acknowledgment of the debt and promise to pay it.

On same day, J. B. Cloutier, the administrator, acknowledged the note in writing, to be paid in course of administration.

The effect of these acknowledgments was twofold, viz: (1st), to interrupt prescription as to both the solidary debtors; (2d), to suspend prescription, quoad the succession of Oloutier, during the entire pendency of the administration.

The last doctrine is firmly established by the decision in Renshaw vs. Stafford, 30 An. 853, followed and affirmed in Maraist vs. Guilbeau, 31 An. 713, and Heirs vs. Hornsby, 32 An. 337.

The correctness of these decisions is vehemently assailed'by counsel of plaintiffs, and earnest appeal is made to us to overrule them. In deference to their demands, we have carefully examined the principles and reasoning on which they rest, and have considered the contrary arguments of counsel. Our conclusion is, that the decisions are thoroughly sound and correct; and if the question were res nova, we should decide it in the same sense.

Even if we felt doubt as to its technical correctness, which we do not, it could not be said to be so unfounded in law, or so unreasonable in its deductions, or so mischievous in its consequences,” as to justify us in departing from the wholesome principle of stare decisis and unsettling rights which may have been adjusted under its control as a precedent.

Cooley, Const. Lim., p. 52.

The administration of the succession of Cloutier continues to the present day, and no account has ever been filed, so far as the record shows.

We do not think the suspension of prescription is affected by changes in the persons administering, nor by lapses of active administration resulting from the death of officers and the necessary delays in filling vacancies. The administration is vested in the court through its officers, and is continuous, and does not lapse by death or change of officers.

It is, therefore, clear that Givanovitch was and is a creditor, whose •debt is not prescribed; and this is sufficient to maintain the sale, and to support the proceeding on the bonds.

3d. Are the bonds prescribed?

They are subject only to the prescription of five years.

Chastant vs. Strong, 22 An. 410.

Bank vs. Williams, 21 An. 121.

They became due, respectively, on January 6th, 1873, and January -6th, 1874. A writ of fi. fa. was issued upon them, as authorized by law, •on September 24,1877, and notice of seizure thereunder was served personally on Ambrose and Marzalie Deblieux, on the 25th of the same month. The sheriff seized the property, advertized the same for sale, and was proceeding in due course to execute the writ when arrested by injunction in the present suit. This seizure, in accordance with law, under the mandate of the court, and the notice thereof, were made within the prescriptive term, and operated an interruption thereof.

The case cannot be distinguished from like proceedings under executory process, as to which it is now settled that the seizure and notice Interrupt prescription.

Hebert vs. Chastant, 22 An. 152.

Walker vs. Lee, 20 An. 192.

4 An. 322; 21 An. 155, 32; 23 An. 215, 427.

Such seizure and notice under fi. fa. is the mode of judicial enforcement of twelve-months’ bonds provided by law, which does not contemplate the necessity of ordinary suit thereon. The bonds are not pre■.scribed.

It is, therefore, ordered, adjudged and decreed that the judgment •appealed from be affirmed at appellants’ costs in both courts.

Mr. Justice Levy is recused, having been of counsel.