text:
    No. 443.
    Chaffe, Shea & Loye v. George B. Abercrombie.
    The plaintiffs purchased in January, 1872, from one Bobert Stothard, a certain section of land with the improvements thereon. Joseph Stothard was employed to hold possession for plaintiffs. During the same month the place and improvements were attached at the suit of Laura Stevens against said Bobert Stothard and taken possession of by the sheriff who appointed Laura Stevens herself as keeper, and she employed Abercrombie, the defendant to take charge of the place as her agent. The seizure was subsequently released by order of Mrs. Stevens, the plaintiff in the attachment suit. The sheriff made his return accordingly, and gave an order to the custodian under him to cease Ms duties as such. One of the plaintiffs thereupon demanded possession of the defendant who refused to comply with the demand. The defendant being in possession pro hac vice as keeper under the sheriff, it was clearly out of his power to acquire a possession adverse to the plaintiffs* rights.
    Title does not come into view when the question is purely one involving the right of possession.
    Appeal from the Eighteenth Judicial District Court, parish of Webster. Turner, J. Jury trial.

      A. B. George, for plaintiffs and appellees. Wathins & Fort, for defendant and appellant.
   Ludeling, C. J.

This is a possessory action. The plaintiffs, it appears, obtained possession of the quarter section of land which they sue to recover possession of by purchase of the same With the improvements upon it from one Robert Stothard in the month ot January, 1872. Stothard, it is shown, was in possession of the place more than twelve months before he transferred it to the plaintiffs. Joseph Stothard was employed to hold possession for plaintiffs, who had coin, fodder, etc., on the place. During the month (January, 1872,) the place and improvements were attached at the suit of Laura Stevens against Robert Stothard, and taken possession of by the sheriff, who at first appointed Kelly keeper and afterwards Laura Stevens herself, who employed Abercrombie, the defendant, to take charge of the place as her agent. On the twenty-ninth of January, 1872, the seizure was released by order of Mrs. Stevens, the plaintiff in the attachment suit. The sheriff made his return accordingly, and gave an order to the custodian under him to cease his duties as such. One of the plaintiffs thereupon demanded possession of the defendant, who refused to comply with the demand. In this manner the controversy was brought about. The case was'tried before a jury, who rendered a verdict in favor of the plaintiff, giving him possession of the premises and awarding him ninety dollars for rents. The defendant has appealed.

It was clearly out of the power of the defendant thus to acquire a possession adverse to the plaintiffs’ rights that would avail him, as his act was in fraud of their rights. He was in possession pro hae vice as keeper under the sheriff in lieu of Mrs. Stevens, by whose orders the seizure by the sheriff was released. The defendant contends that he holds possession of the land as public or railroad lands for the purpose of pre-empting upon it, and he offered to show by a certificate from the land office that the land is railroad land. The evidence was properly rejected. Title in this case does not come into view, the question being purely one involving only the right of possession. 7 La. R. 6; ibidem 414; 9 La. 152; 5 L. 117, and numerous other authorities.

Judgment affirmed.


source: Caselaw Access Project

author: Morgan, J.

license: Public Domain

text:
    No. 441.
    Cornelia McCoy and Husband v. Neely McCoy, Administrator.
    When the amount allowed to a widow in necessitous circumstances is claimed, it must be clearly established that these circumstances existed at the time the suit was filed.
    Appeal from the Eighteenth Judicial District Court, parish of Webster. Turner, J.

      A. JB. George, Ij. JB. Watlcms, for plaintiff and appellee. Watkins & Fort, for defendant and appellant.
   Morgan, J.

Plaintiff, widow of L. P. McCoy, and now the wife of Alexander D. Hamilton, sues the administrator of the succession of her former husband, and, alleging that at the death of her said husband she was in necessitous circumstances, claims one thousand dollars.

She further alleges that the estate left by her former husband was community property, and that as he died without leaving ascendents or descendents, she is entitled, as surviving widow, to the possession of all the property left by him during her natural life.

We do not think that these demands are inconsistent, as they are alleged to be by the defendant. If she was in necessitous circumstances, she would be entitled to the amount allowed her by law. If she was in community with her husband she would be entitled to her share of the community. Only the value of her interest therein would have to be deducted from the amount necessary to make up the $1000. Thus, if the succession of her husband consisted of property, acquired during marriage, and valued at $1500, she would be entitled to $750, in her own right, and .the balance of the amount necessary to make up the $1000, viz., $250 would be taken from the estate. She would clearly not be entitled to, first, the $750, amount of her interest in the community, and second, $1000 on account of her necessitous circumstances. She could only get an amount out of the succession of her husband, which, added to her own, would make up the sum of $1000.

As the sum claimed exceeds five hundred dollars, perhaps the district court had jurisdiction.

We understand the law which she invokes to be a charity, to be entitled to which it is necessary that the party claiming it should be an object of charity, or, as the law itself has it, in necessitous circumstances, and that these necessitous circumstances should exist at the time the charity is applied lor. This is a question of fact, the affimative of which is held by the applicant, and which must be established by the party claiming it. If the necessitous circumstances, admitting that they once existed, came to an end, the reason of the law would come to an end; when the reason ceases the law ceases with it. It would hardly be contended that, if a wife was left in destitute circumstances at the death of her husband, and while his succession was under administration she inherited a fortune, she would nevertheless be entitled to receive from his estate $1000. The injustice of such a doctrine would be manifest. The property left by the husband might not be worth more than $1000, and he might owe to persons in circumstances as necessitous as those of his wife, more than that sum. To give her the whole of his estate, and to his creditors nothing, when they needed it and she did not, would be cruel as well as unjust.

Now, in the case under consideration, it is not even alleged that the plaintiff is, or was when the suit was filed, in necessitous circumstances. It is established that when her husband, McCoy, died she had nothing, but she has maried since, and what her circumstances now are, we are not informed. For aught we know, she may be comfortably off.

Without expressing any opinion as to her right to recover, after her second marriage, the amount allowed to widows in necessitous circumstances, we are clearly of the opinion that she should make the circumstances which give her the right she claims clear. As she has not done this, we think she should suffer nonsuit.

Judgment affirmed.


author: Taliaferro, J.

text:
    No. 467.
    J. H. Scott v. D. C. Davis et al. F. B. Davis, Garnishee.
    When there is no garnishment the actual seizure of the property is alone the basis of the attachment and jurisdiction of the court. It is the duty of the sheriff to take the property into actual possession. If it be a plantation, it remains sequestered in his oustody until the sale, and he may appoint a keeper.
    Appeal from the Eleventh Judicial District Court, parish of Bienville. Trimble, J.

      J. F. Fierson, for plaintiff and appellant. L. B. Watldns, for defendants and appellees.
   Taliaferro, J.

This suit is brought by attachment against D. C. Davis, of whom the plaintiff complains that, after having made a simulated sale of his property for the purpose of defrauding his creditors, left the State permanently. The plaintiff attacks the sale he complains of and prays that it be decreed simulated, null and void, and the land it purports to convey be made subject to the plaintiff’s demand. An attachment was issued and put into the hands of the sheriff, who made a return of having seized and attached certain land, giving a description of the same. A curator ad hoe was appointed to represent the absentee. Personal service was made on the other defendants. An exception was filed by the defendants to the legality of the proceedings on these grounds :

First — No legal service of citation on the absentee.

Second — That the plaintiff has cumulated a number of small claims, belonging to other persons, to make up a fictitious sum to give jurisdiction to the court — his own demand being less than the amount required to give jurisdiction.

Third — No actual seizure of property was ever made. The property pretended to have been seized was never in the possession of the sheriff, or of any other person possessing for him.

The exception was sustained and the suit dismissed. The plaintiff appealed. It is clear there was no actual seizure made. The return of the sheriff is that the service of the writ of attachment was made “by seizing and attaching the following described property, to wit: South half of section nine and south quarter of northwest quarter of section nine, and southeast quarter of section eight, township sixteen, range nine west, seized as the property of D. C. Davis, this December 15, 1873.” The sheriff being placed upon the stand as a witness said, in relation to service of the attachment: “I went on the place where Mr. D. C. Davis did live, and on the land described as having been seized. I handed F. B. Davis, Jr., a copy of petition, a copy of attachment and of citation; told F. B. Davis, Jr., that I had seized and attached that land. I asked him if he expected to remain on the place and make a crop, and he (Davis) stated that he did. I then told him that I would uot dispossess him, as it was land and could not be removed, to which he made no objection. He urged no rights of his own as opposed to the seizure of said land — -made no objection to the seizure; and I told him he could'remain there until the matter was •decided by the courts, to which proposition he .(Davis) said, yes sir.’ ”

When there is ño garnishment the actual seizure of the property is .alone the basis of the attachment and the j urisdiction of the court.” 6' An. 551; lb. 581. “ It is the duty of the sheriff to take the property into actual possession ; if it be to a plantation it remains sequestered in his custody until the sale, and he may appoint a keeper.” C. P., articles 656, 662, 762 ; 6 Rob. 100.

The decree of the lower court was properly rendered.

Judgment affirmed.


author: Ludeling, C. J.

text:
    No. 512.
    B. M. Johnson v. F. A. Flanagan et al.
    "Where A, in order to raise money to pay his creditor B, authorized B to draw on him a draft which was accepted and negotiated, but not paid when due ;
    ■Held — That B had a right to expect his draft to be honored and is discharged from all liability on the draft by the laches of the holder in not giving him notice of non-payment.
    Appeal from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Land <& Taylor, for. plaintiff and appellee. Nutt & Leonard, for defendant and appellant.
   Ludeling, C. J.

The plaintiff sued Flanagan as acceptor and J. C. Moncure as drawer of a draft for $1000. The defense is want of notice -of disüonor. The facts appear to be as follows:

F. A. Flanagan and J. C. Moncure were law partners; Flanagan owed Moncure $800 or $900, and being without the money to pay Flanagan was willing to accept a draft, drawn by Moncure for $1000, in favor of Moncure & Flanagan, if it could be discounted at the bank of the plaintiff. Moncure spoke to the plaintiff, on the subject, who ■consented to discount the draft. The draft was drawn, indorsed by Moncure & Flanagan, the drawees, accepted by Flanagan and dis-eounted by Johnson, and the money was received by Flanagan from Johnson, and $800 or $900 of the proceeds were given by him to Moncure.'

- The question is, was Moncure, the drawer, entitled to notice of nonpayment, under the circumstances ? We think he was. It was an ordinary commercial transaction by which a debtor was enabled to raise money to pay his creditor, who conditionally bound himself, to enable his debtor to get the money. Flanagan, the debtor, had authorized him to draw on him, promising to accept and pay the draft. The draft was accepted bat uot paid. Moncure had a right to expect his draft to be honored, and he is discharged from all liability on the draft by the laches of the holder in not giving him notice of non-payment.

It is therefore ordered and adjudged that the judgment of the lower court, against Moncure, be avoided and annulled, and that there be judgment in his favor and against the plaintiff, rejecting his demand with costs.

Rehearing refused.


author: Wyly, J.

text:
    No. 514.
    W. W. Harper v. H. Linman. Neith Lodge, Third Opponent.
    As a general rule the sale of property by the probate court transfers the mortgage from the thing sold to the proceeds in the hands of the administrator, but this applies only to the sale of the property of the deceased. In the case at bar, at least one-half of the mortgaged property belonged to the defendant, the surviving husband, and the value of this half exceeds the amount of the mortgage of the third opponent. The sale of defendant’s property by the probate court certainly did not raise the mortgage of the third opponent thereon.
    Appeal from tlie Tenth Judicial District Court, parish of Caddo. Looney, J.

      Land <& Taylor, for plaintiff and appellee. Egan & Wise, for third opponent and appellant.
   Wyly, J.

This is a controversy between mortgage creditors for the proceeds of the sale of certain property belonging to the defendant. Cristine Linman, the wife of the defendant, died in 1871, and her husband was appointed administrator of her succession. The property in question, to wit: Two lots of ground in the city of Shreveport, with the improvements thereon, were inventoried as belonging to the community. The third opponent was a community creditor, having a. special mortgage on said lots. After a tableau of debts had been homologated, showing that the community was insolvent, all of the-community property, including the lots upon which the third opponent held a mortgage, was sold by order of the probate court, and Harper,, the plaintiff, purchased it. He subsequently conveyed it to the defendant, Linman, the husband of the deceased and the surviving-partner in community, retaining a special mortgage to secure the price. The defendant failed to pay the price and the plaintiff foreclosed his mortgage. Thereupon the third opponent, a conventional mortgage creditor, intervened and claimed of the proceeds a sufficient amount to satisfy the mortgage of said opponent.

The court dismissed the opposition and gave judgment in favor of plaintiff.- The third opponent has appealed. As a general rule the sale of property by the probate court transfers the mortgage from the thing sold to the proceeds in the hands of the administrator; but this applies only to the sale of the property of the deceased. In the case at bar at least one-half of the mortgaged property belonged to the defendant, the surviving husband ; and the value of this half exceeds the amount of the mortgage of the third opponent. The sale of defendant’s property by the probate court certainly did not raise the mortgage of the third opponent thereon. Whether the sale raised the mortgage on the other half, or whether it only amounted to an alienation of the residuary interest of the wife in the community, it is not necessary now to decide.

The evidence shows that prescription was interrupted.

It is therefore ordered that the judgment herein be annulled, and it is ordered that there be judgment in favor of the third opponent, the Neith Lodge, No. 21 I. O. 0. F., requiring the sheriff to pay the demand thereof out of the proceeds of the sale of the property mortgaged to said opponent. It is further ordered that the plaintiff pay costs of this proceeding in both courts.

Rehearing refused.


text:
    No. 477.
    Dodson Harrell v. John G. Sanders.
    A certain quantity of cotton sequestered at the suit of plaintiff, who claimed $772 55 from Grant, his employer, was released upon a bond on which defendant went surety, and a judgment was rendered against Grant in favor of plaintiff, by consent, ior $532, with privilege. Atter the issuing of a fieri facias and the return of nidia bona, the defendant being sued to make him responsible as surety on the bond;
    Held — That the admission of Grant that he owed a certain sum — less than the sum claimed_ for which amount judgment was rendered, did not release the surety on the bond from paying the judgment which he had agreed to pay, should judgment be rendered against the principal on the bond. The defendant was not surety for any debt due by Grant to plaintiff, but had merely bound himself to satisfy any judgment which might be given.
    The objection that a privilege can not be given by consent is not to be taken into consideration, because the plaintiff’s right to recover does not rest upon the privilege which was granted to him by the judgment, but on the judgment itself.
    The defense that defendant is not responsible on the bond, which, it is alleged, has none of the features of a legal bond for the delivery of property sequestered, is not valid. The bond must be considered with reference to the law under which it was given. Ho matter what the parties choose to call it, the law designates it as a forthcoming bond, and as such it must be regarded.
    Appeal from the Fourteenth Judicial District Court, parish of Ouachita. J.

      B. W. & B. Biehardson, for plaintiff and appellee. Odbb <& Gunby, for defendant and appellant.
   Morgan, J.

Harrell sued Grant for services rendered him as an overseer. He sequestered certain cotton grown upon the land which had been under his supervision. The sequestration was sot aside and the property .released upon bond. Sanders was the surety on the bond.

The amount claimed by Harrell was $772 55. Judgment was rendered in his favor, by consent, tor $532 with privilege. Fieri famas issued thereon and was returned walla lona. The object of this action is-to make Sanders, the surety ou the bond, responsible for the judgment. The first defense urged is that the judgment against Grant was the result of a transaction or compromise to which Sanders was not a party, and that he is thereby discharged from liability.

“ The surety is discharged when by the act of the creditor the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety.” C. C. 3061.

The prolongation of the terms granted to the principal debtor without the consent of the surety, operates a discharge of the latter.” C. C. 3032.

“The creditor who transacts with the surety of his debtor, may discharge the surety only, and the transaction will not diminish his right against the debtor. But if it is with the debtor himself that he has transacted the surety will likewise have the benefit of the transaction, because his obligation is only an accessory to that of the principal debtor.” C. C. 3076.

“ A transaction made by one of the interested parties is not binding for the others, and can not be opposed by them.” C. C. 3077.

These are the articles of the Civil Code upon which the defendant relies for relief from his obligation.

■But Sanders was not the surety for any debt due by Grant to Harrell. He merely bound himself to pay any judgment which might be rendered against him. There was no prolongation of any term of payment. There was no transaction between Harrell, the creditor, and Grant, the surety, on the bond; nor was there a transaction binding on those who made it, and not binding on others. Harrell had sued Grant. Grant admitted that he owed a certain amount, less than the sum claimed, and for this amount judgment was rendered. This does not release the surety on a bond from paying the judgment which he has agreed to pay should judgment be rendered against the principal on the bond. Neither do the decisions in the cases of McGuire v. Barnett, 6 R. 47, or Peacock v. Chapman, 8 An. 87, in our opinion, sustain the defendant in his position. Both cases were actions against parties originally bound for the debts sued for, and in both extension of time had been given to the principals.

His second objection is that a privilege can not be given by consent. If the plaintiff’s right to recover rested upon the privilege which was granted to him by the judgment, this question would have to be considered. But his right does not depend upon his privilege. It is founded upon his judgment.

The next defense is that Sanders is not responsible on the bond, which, it is alleged, has none of the features of a legal bond for the delivery of property sequestered. The bond must be considered with reference to the law under which it was given. No matter what the parties chose to call it, the law designates it as a forthcoming bond, and as such we must regard it.

The last objection is that the value of the property released was not proven. We think it was. It is shown by the return of the sheriff, and this evidence is not contradicted.

Judgment affirmed.


author: Ludeling; C. J.

text:
    No. 473.
    James Christian v. H. F. Vickers.
    The plaintiff’s answers on facts and articles being obtained by defendant, these answers must prevail over the unsupported testimony of the defendant.
    Appeal from the Fourteenth Judicial District Court, parish of Rich-land. .Bay, J.

      Todd <& Potts, for plaintiff and appellee. Wells & Williams, for defendant and appellant.
   Ludeling; C. J.

This suit is predicated upon a note given for a part of the price of a tract of land.

The defense is that there is a partial failure of the consideration of the note, and that there was an agreement between the parties that “the notes should be credited with a sum of money bearing the proportion to the price defendant stipulated for the place that the number of acres claimed by Christian did to the whole tract, which respondent subsequently ascertained to be $1500.” He further pleaded compensation.

There was judgment for plaintiff and defendant has appealed. The defendant took three bills of exceptions during the trial. They all relate to the refusal of the judge to permit the defendant to testify in regard to the consideration of the note sued upon, and the new agreement alleged in the answer and the failure of consideration. It is unimportant to discuss the question whether the rulings were correct or not, inasmuch as if the testimony of the defendant were admitted, it could not change the decision. The plaintiff's answers on facts and articles were obtained by defendant. These answers must prevail over the unsupported testimony of the defendant.

On the merits, the evidence supports the judgment.

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


author: Ludei.in&, C. J.

text:
    No. 445.
    Thomas R. Geren v. E. H. Gruber, Tax Collector.
    The assessment for revenue purposes consists in the descriptive lists and the valuation of property by the officers designated for that purpose, and if any discrepancy in the description of the property exist between the original lists and the copies furnished, the description in the original must control.
    This court has no jurisdiction over the question of excessive taxation of property, after the delay given to taxpayers to correct their assessment has expired, if it ever has.
    Inasmuch as the registry of the list of delinquent taxpayers was made before the recordation of the plaintiff’s deed, he can not raise the question of registry, even if necessary to procure the right of preference in favor of the State.
    Taxes are not debts in the ordinary sense of that word, but forced contributions for the support of the body politic, and it is competent for the sovereign to provide how these contributions shall be collected and to say whether the right of preference shall exist for the payment of the same, and for what length of time.
    The right of taxation is one of the attributes of sovereignty, and the fundamental law of the State provides that it shall be equal and uniform and ad valorem. It is the property of the State which is to be taxed, and it is immaterial to the State whether it belongs to A or to B. As long as the tax is unpaid, the State has a right to exact it.
    It is also competent for the State to make eaelrand every piece of property owned by any one, responsible for the whole amount of the taxes assessed to him — and such is in fact the law.
    The right of redemption accorded ex gratia must be exercised under the conditions imposed.
    The constitutional objection that the penalties are being collected without due process of law, and that they can only be collected by hypothecary action, has no force. As there is no debt and no mortgage to enforce, the hypothecary action could not be maintained. Due process of law is provided in the statute on the subject. The same statute declares that the property is burdened with the taxes and a lien and privilege to secure the payment of the taxes, and that it will remain burdened into whatever hands it may pass.
    There is no force in the objection that the amount of the penalties is not mentioned in the recorded list against the delinquent taxpayer. The penalties, like legal interest, are fixed by law.
    The recordation of a description of the property of a delinquent taxpayer is the mode of seizure provided for by the statute.
    The law maker did not contemplate the advertisement of the property before the seizure. It declares that the tax collector, on the fourth day of such recordation, may proceed to sell without (other) legal process, after advertising, etc., etc. The four days must be regarded as the days of grace allowed the delinquent before advertising his property for sale — corresponding to the delay accompanying notices of seizures.
    The plaintiff’s purchase of certain lots from the original owner, as whose property they were assessed, could only have invested him with such rights as the original owner and delinquent taxpayer, and that was the right of redemption.
    !Not having offered to avail himself of the right of redemption under the conditions prescribed, the plaintiff had no interest or right to interfere by injunction with the proceeding of the tax collector.
    The law authorizing one hundred per cent, damages for wrongfully injoining the collection of taxes, does not apply when one, other than the person to whom the taxes are assessed, sues out the injunction, and the original taxpayer can only do it prior to the forfeiture.
    Appeal from the Eighteenth Judicial District Court, parish of Webster. Turner, J.

      Watkins & Fort, tor plaintiff and appellant. L. JB. Watkins, for defendant and appellant.
   Ludei.in&, C. J.

The plaintiff injoined the sale of lots 120 and 121 in the town of Minden, seized and advertised for sale to pay the taxes due by E. E. Archinard, for the year 1&71, on the grounds, that “ the house and lots 120 and 121 are not the property of E. E. Archinard, but the property of your petitioner; that there is no lien or mortgage for the State and parish taxes of E. E. Archinard on said lots, and no legal seizure of said lots has been made, and said lots are not liable for the taxes of E. E. Archinard.” He further alleges that the principal amount of the taxes against E. E. Archinard was for stock in trade, which was erroneous, since his stock .was sold in 1871 to Samuel Archinard, to whom the same was assessed,” etc.

The facts disclosed by this record are that E. E. Archinard was doing a commercial business in Minden in 1871, where he resided; that the tax collector left with him a blank descriptive list, to be filled by him with a correct description of his taxable property, for assessment; that this list was returned to the tax collector filled up, under oath, and signed E. E. Archinard, per G-. W. Rawls, who was his clerk and agent; that this was subsequently ratified by E. E. Archinard in repeated conversations with the tax collector, in which Archinard complained of the high taxes on the capital in trade, inasmuch as he had only been in business a few months. That this descriptive list of the property described lots 120 and 121, in the town of Minden, with a house thereon ; that this property was assessed or appraised by the board of assessors and filed in the recorder’s office in 1871, and that the taxes of E. E. Archinard are due and unpaid.

By an act under private signature, dated twenty-eighth of August, 1872, lots 120 and 121 were sold to the plaintiff. This act was duly .proved and recorded on the nineteenth day of July, 1873. On the ninth day of December, 1872, the delinquent list for the parish of Webster was recorded in the mortgage book. In this list the lots are described as numbered twenty and twenty-one, and so they are in the copy of the assessment roll filed in the recorder’s office. . After advertising the sale of the property the tax collector discovered the error in the description, and he attempted to correct it by having recorded in the mortgage book a corrected list of the property of the delinquent taxpayer, by making it correspond with the original descriptive list furnished by E. E. Archinard.

The first and principal questions are, was there an assessment, and what constituted that assessment? Section 23 of the revenue act of 1871 provides, “ that each assessor appointed for the city of New Orleans, and the tax collectors appointed for each of the parishes, shall proceed, by diligent inquiry, between the first day of February and ■the first day of July of every year, to ascertain the names of all the ■inhabitants of their respective parishes, who are taxable for licenses or for property, or for both, and also to obtain a description of all the taxable property within the same. And to these ends and purposes said assessors and tax collectors shall, without delay, serve on each of the taxpayers of their respective parishes or districts a written or printed notice, containing an enumeration of all the objects of taxation,, both real and personal, as fixed by law, and requiring each taxpayer so notified to fill up the blanks in said notice with such of the objects of taxation aforesaid as he possesses or has under his control, and to give the value of each of said objects of taxation, and to make a declaration over his signature to the correctness of the statements so made, declared and signed. And said statement so filled up, etc., shall be returned to said assessor or tax collector, as the case may be, on or before the first day of July, following service of said notice.”

Section 24 provides that “ the whole of said lists shall be carefully stitched or bound together, and shall be deposited with the descriptive or assessment rolls, as hereinafter provided for, in the offices of the-parish recorders — those for the city of New Orleans in the office of the-board of assessors,” etc.

Section 39 provides that the tax collectors shall “complete their descriptions of all the taxable property of their respective assessment districts or parishes, on or before the first of August of each year, and shall affix to it an affidavit made by them and said assessors and tax collectors “ shall deposit said rolls with the board of assessors for the city of New Orleans, or with the parish recorders, as the case may be and the respective officers, with whom the rolls shall be lodged, shall indorse upon them the time when they were received.”

Section 40 provides that the property in the descriptive rolls of the tax collectors shall be assessed by the clerk of the district court, the recorder and sheriff,” etc. “For this purpose they shall give notice in the official journal of the parish to all taxpayers * * * that they will assess the property of the parish for one month, commencing from first day of August and ending first day of September.”

Section 42 provides that “after the assessment is completed, the tax collectors shall make three fair and correct copies of the assessment-rolls of their several parishes, which shall be approved and signed by said board of assessment. One of these copies they shall immediately forward to the Auditor of Public Accounts; one they shall deposit, together with the descriptive rolls, in the office of the recorder, and the-third they shall deliver to the tax collector upon the order of the Auditor of Public Accounts.”

We conclude that the assessment consists in the descriptive lists and the valuation of the property by the officers aforesaid, and that if any discrepancy in the description of the property in the original lists and, the copies exist, the description in the original must control.

The evidence shows that the original descriptive roll was made, and that the officers whose duty it was to make the appraisement of the-property did so on said original rolls. This court has no jurisdiction over the question of excessive valuation of the property, after the delay given to taxpayers to correct their assessments has expired, if it ever has.

Inasmuch as the registry of the list of delinquent taxpayers was made before the recordation of the plaintiff’s deed, he can not raise the question of registry, even if registry be necessary to preserve the right of preference in favor of the State, about which we express no opinion here.

Taxes are not debts in the ordinary sense of that word, but forced contributions for the support of the body politic, and it is competent for the sovereign to provide how these contributions shall be collected, and to say whether this right of preference shall exist, and for what length of time. The right of taxation is one of the attributes of sovereignty, and the fundamental law of the State provides that it shall be equal and uniform and ad valorem. It is the property of the State which is to be taxed, and it is immaterial to the State whether it belongs to A or to B. So long as the tax is unpaid the State has a right to.exact it, and in justice to the other property holders the State is bound to exact it.

It is also competent for the State to make each and every piece of property owned by any one, responsible for the whole amount of the taxes assessed to him. And such in fact is the law. Nor is there any inconsistency in saying that it is the property which is taxed, and that each piece of property in the possession of the taxpayer is responsible for the whole amount of taxes with which he is assessed. The State has the power to make such laws as in its discretion will secure and enforce the prompt collection of taxes. And we fail to see wherein this provision of the law violates the constitution.

The right of redemption, accorded ex gratia, must be exercised under the conditions imposed. Nor do we perceive the force of the constitutional objection that the penalties are being collected without due process of law, and that they can only be collected by the hypothecary action. As there is no debt and no mortgage to enforce, the hypothecary action could not be maintained. Due process of law is provided in the statute. The same statute declares that the property is burdened with the taxes and a lien and privilege to secure the payment of the taxes, and that it will remain so burdened into whatsoever hands it may pass. The plaintiff is presumed to know the law, and he can not defeat the summary process for the collection of taxes by buying the property subject to the taxes. As well might a third person in possession of property subject to a mortgage with the pact de non alienando, say that our executory process is unconstitutional. Nor is there any force in the objection that the amount of the penalties is not mentioned in the recorded list against the delinquent taxpayer. The penalties, like legal interest, are fixed by the law.

The recordation of a description of the property of a delinquent taxpayer is the mode of seizure provided by the statute. Section 57, act 42 of 1871, p. 120. But the law maker did not contemplate the advertisement of the property before the seizure. It declares that the tax collector, “on the fourth day of such recordation, may proceed to sell without (other) legal process, after advertising three times within twenty days in the official journal.” The act of 1873 only changes the length of time for advertising. The four days must be regarded as the days of grace allowed the delinquent before advertising his property for sale, corresponding to the delay accompanying notices of seizures.

The complaint that there has been no seizure comes with a bad grace from the plaintiff, as, if true, he would have no just cause to complain. Nor is he less inconsistent when urging, as an argument against the sale of lots 120 and 121, that they were forfeited to the State by the default of the taxpayer to pay his taxes. His purchase of these lots from the original owner, as whose property they were assessed, could only have invested him with such rights as he (the original owner and delinquent taxpayer) had, and that was only the right of redemption.

We have already said, this right can only be exercised under the conditions imposed by the law, to wit: by paying the taxes for which the property is liable, with the penalties and costs. Not having offered to do this, the plaintiff had no interest or right to interfere with the proceedings of the tax collector.

The law authorizing one hundred per cent, damages for wrongfully injoining the collection of taxes, does not apply, when one other than the person to whom the taxes are assessed, sues out the injunction, and the original taxpayer can only do it, prior to the forfeiture.

It is therefore ordered and adjudged that the judgment of the lower court be avoided, and that there be judgment against the plaintiff and in favor of the defendant dissolving the injunction, with costs in both courts.


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    No. -.
    C. H. Morrison v. P. J. Larkin, Tax Collector.
    The plaintiff has injoined defendant, tax collector, from selling certain lands seized for non payment of taxes. He contends that the collector’s authority does not extend to the sale of lands forfeited to the State as his were, under sections 66, 67 and 68 of article No. 42 of the acts of 1871. The plaintiff can not assume this position without putting himself out of court, because, if his lands were forfeited to the State in pursuance of said act, the only right remaining to him is the right of redemption, under section 69 of said act, and until he chooses to exercise this right, he has no more interest in said lands than any other individual.
    Besides, if the defendant has no authority to sell the lands forfeited to the State, no title will pass to the purchaser; there will be no change of ownership and the plaintiff can not be injured. But. on examination of the statutes, it is found that the tax collectors have authority to collect taxes on the delinquent lists, and for this purpose can sell the land forfeited to the State.
    The implied contract of every citizen with the State, is to bear his share of the common burden of taxtion for the support of government. If Ke should fail to meet this obligation,-there is no reason why he should not pay damages for breach thereof.
    The law authorizing the forfeiture of the lands to the State after due notice has been given to the owner, and reserving to him the right of redemption on paying certain damages and costs, is regarded as a legitimate means employed by the State to collect her resources.
    Hothing is found in the law authorizing the forfeiture of the lands to the State for non-pay. mentof taxes after due notice, repugnant to the articles of the State constitution relied on by plaintiff, nor is it in contravention of article one of the fourteenth amendment of the Constitution of the United States.
    It is true that the special grant of authority in article 118 of the constitution, to the general assembly, “ to exempt from taxation property actually used for churches, school or charitable purposes,” carries with it implied inhibition against the exemption of property not actually used for church, school or charitable purposes. But, while those sections of the law and the special acts exempting property from taxation in contravention of the constitution, may be void, the other provisions of the law authorizing the levying and collecting of the taxes are valid and may be enforced.
    If the exemptions complained of contravene the constitution, they are void, and such property under section 55 of act 42 of the acts of 1871, is liable to be assessed and taxed like all other property. There is then no inequality of which the plaintiff can complain.
    Section 8 of act 47 of the acts of 1873, prohibiting a delinquent tax payer from bringing a suit or being a witness, is violative of article 114 of the constitution and void, the object of said section not being expressed in the letter of the law.
    In regard to the one hundred per cent, damages for suing (section 3 of article 47 of acts of 1873), that provision does not apply to a case like this, when lands have been forfeited to the State.
    Appeal from the Fourteenth Judicial District Court, parish of Morehouse. May, J.

      W. W. Farmer, for plaintiff and appellee. <7. T. Dunn, for defendant and appellant.
   Wyly, J.

The plaintiff injoined the defendant, the tax collector, from selling under act 47 of the acts of 1873, certain lands in the parish of Morehouse, -which he alleges belong to him, for the State and parish taxes for the years 1870, 1871 and 1872, and also for the penalties prescribed by law for non payment of the taxes of 1870 and 1871.

The court finding that the taxes for 1870 had been paid, maintained the injunction to that extent. It also maintained the injunction in regard to the penalties, but dissolved it for the taxes of 1871 and 1872, ordering the sale to be made for said amounts and condemning the defendant to pay costs. From this judgment the defendant appeals. The plaintiff also joining in the appeal prays for an amendment of the judgment so as to perpetuate the injunction for all the taxes, penalties and costs.

The judge did not err in holding that the taxes for 1870 had been paid, the fact being fully established by the record.

The right of the defendant to sell the property of taxpayers for taxes under act 47 of the acts of 1873, is not disputed. But the plaintiff contends that his authority does not extend to the sale of lands forfeited to the State, as his was, under sections 66, 67 and 68 of act No. 42 of the acts of 1871. The plaintiff can not assume this position without putting himself out of court, because, if his lands were forfeited to the State in pursuance of said act, the only right remaining to him is the right of redemption under section 69 of said act, and until he chooses to exercise this right he has no more interest in said lands than any other individual. Disavowing title and setting up ownership of the State as a ground to resist the sale proposed by the tax collector, the plaintiff stands before the court without cause of complaint; he has no pecuniary interest and can not be relieved. Besides, if the defendant has no authority to sell the lands forfeited to the State, no title will pass to the purchaser, there will be no change of ownership, and the plaintiff can not be injured. But upon examining the statutes, we find that the tax collectors have authority to collect taxes on the delinquent lists and for this purpose can sell the lands that have been forfeited to the State. Sections 38, 55, 57, 59, 60, 65, 69 of act 42 of the acts of 1871, and sections 5 and 9 of act 47 of the acts of 1873.

We find that the lands in controversy were forfeited to the State under sections 66, 67 and 68 of act 42 of the acts of 1871.

Section 68 provides: “ That the said delinquent lists, or copies and verifications, when so filed in the officp of the Auditor of Public Accounts, shall be entered by him on a record kept for that purpose, and shall vest, from the day of filing, a title to the lands and lots therein returned, in the State of Louisiana, which shall be impeachable only on proof that taxes for non payment whereof the lands were returned forfeited, had been in fact paid to the collector before the return of the lists to the recorder.”

Section 69 declares, “That if any person interested in any lot) or lands forfeited to the State shall, after the date of the collector’s return, pay to the treasurer of the State or. to the tax collector charged with the collection of the tax for which said property was forfeited, the taxes for which the same was returned, and all taxes subsequently accrued on such land, and twenty-five per cent, damages thereon, and twenty-five per centum additional, for every year or part of year, after one year, the Auditor upon proof thereof, shall execute and deliver to such person a certificate of redemption ” etc. * * *

Section 6 of act 47 of the acts of 1873, provides: “That all real estate sold hereafter under the provisions of this act, or any other law of this State providing for the sale of property of delinquent tax-payers, shall be redeemable by the owners thereof or their legally authorized agents within six months from date of sale, upon payment to the party purchasing at the tax collectors sale of the amount of the purchase money with fifty per centum additional and all costs.’’ * * *

Under the express provisions of law the title of the lands in controtroversy vested in the State from the time the delinquent lists were filed with the Auditor, and this title is impeachable only on proof that the taxes for which they were forfeited, had in fact been paid to the collector before the return of the lists to the recorder. The only interest, therefore, that the plaintiff has, and the only right he can exercise in regard to these lands, is the right of redemption given by section 69 of act 42 of acts of 1871. While refusing or neglecting to exercise this right he cannot restrain the sale of the lands by the tax collector. If the tax collector or auditor refuses to let him redeem the lands in conformity with section 69, because they require him to pay the taxes of 1870, which he has already paid, the plaintiff’s remedy is a mandamus.

He may also redeem the lands after the sale on complying with section 6 of act 47 of the acts of 1873.

The plaintiff, however, contends that the law authorizing the forfeiture of lands to the State for non-payment of taxes, and imposing the damages to be paid before it can be redeemed, is void, because, repugnant to articles 2, 6, 8, 73, 93, 102, 110, 118 of the constitution of the State and also section 1, article 14, amendments to the constitution of the United States.

That the State has the power to levy and collect taxes can not be doubted; and that she can impose damages for non-payment of the taxes after due notice, is equally certain. The implied contract of every citizen of the State, is to bear his share of the common burden of taxation to support the government. If he should fail to meet this obligation there is no reason why he should not pay damages for breach thereof.

Having power to collect taxes, the State has authority to use whatever means that are necessary to accomplish the object. The law authorizing the forfeiture of the land to the State after due notice has been given to the owner, and reserving to him the right of redemption on paying certain damages and costs, we regard as a legitimate means employed by the State to collect her revenues. If there were no damages and no forfeiture, how could the State collect taxes, if from combination among bidders or otherwise, no one would bid for property when offered for sale % Without the fear of penalties and forfeiture of his land to the State, an obstinate taxpayer might successfully withhold from the .State her legitimate revenues. 'We find nothing in the law authorizing the forfeiture of the lands to the State for non-payment of the taxes after due notice, repugnant to the articles of the State constitution relied on by the plaintiff. Nor is it in contravention of article one of the fourteenth amendment of the Constitution of the United States.

Carried by "writ of error to the Supreme Court of tbe United States. — Reporter.

The lands of the plaintiff having been lawfully forfeited to the State, the tax collector under the revenue acts of 1871 and 1873 had authority to sell it for the amount of taxes and penalties due thereon, reserving to him the right of redemption contained in said acts.

The plaintiff contends that the revenue act of 1871 and the other statutes authorizing the taxes for which his lands were forfeited to the State, are void, because, in contravention of article 118 of the constitution, they exempt other property besides property actually used for church, school or charitable purposes. We agree with the plaintiff that the special grant of authority in article 118, to the General Assembly “ to exempt from taxation property actually used for church, school or charitable purposes,” carries with it an implied inhibition against the exemption of property not actually used for church, school or charitatable purposes.

But while those sections of the law and the special acts exempting property from taxation in contravention of the constitution, may be void, the other provisions of the law authorizing the levying and collecting of the taxes are valid and may be enforced.

If the exemptions complained of contravene the constitution, they are void and such property under section 55 of act 42 of the acts of 1871, is liable to be assessed and taxed like all other property. There is then no inequality of which the plaintiff can complain.

In regard to the exception to the capacity of plaintiff to sue, we will remark that section' 8 of act 47 of the acts of 1873, prohibiting a delinquent taxpayer from bringing a suit or being a witness, is violative of article 114 of the constitution and void, the object of said section not being expressed in the title of the law.

In regard to the one hundred per cent, damages for suing (section 3 of act 47 of acts of 1873), we will observe that that provision does not apply to a case like this where lauds have been forfeited to the State.

It is therefore ordered that the judgment appealed from be annulled, and it is ordered that the injunction herein be dissolved, plaintiff paying costs of both courts.

Rehearing refused.


author: Howell, J.

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    No. 462.
    Mary Markham v. Jacob J. Schardt.
    This is a suit to annul the judgment homologating the proceedings of a family meeting recommending, and the order appointing, defendant as the tutor of certain minors.
    It was not incumbent on said defendant, in order to be appointed, to allege or show that there were no relatives of the minors in the State entitled to the tutorship.
    It is the duty of the relatives residing within the parish of the judge who is to make the appointment, to apply to such judge within a given time, to have a tutor appointed when necessary. The plaintiff in this case, who alleges to be the grand mother of the minors, resides in the distant parish of Caddo, and there is no relative in the parish of the minors.
    Any one may give information to the judge of the necessity for the appointment of a tutor, but it is not necessary for such person to show who are entitled to the tutorship. If there be such in the parish, they can apply for the appointment, or make opposition to any application.
    The fact that the family meeting were not unanimous in recommending the defendant, may have been a ground for opposing the homologation of the proceedings, or for the convoking by the judge of another meeting, but it is not a'ground for annulling the judgment of homologation or appointment.
    The appointment of a tutor without bond is authorized upon the advice of a family meeting, when no one will take the tutorship and comply with the law requiring a bond. It is shown in this instance that the minors owned no property and that the defendant had charge of them for about seven years before any of their relatives claimed the tutorship.
    The grand mother of the minors could, by timely proceeding, have procured the appointment to their tutorship in preference to the defendant, but the latter having been duly appointed, she can not urge such right as a ground for his removal or the annulment of his - appointment.
    Appeal from the Parish Court,'parish of Morehouse. Wheeler, J.

      S. O. Parsons, for plaintiff and appellee. Newton <& Hall, for defendant and appellant.
   Howell, J.

Plaintiff, the grand mother of the minors Hannah and Lizzie Baird, sues to annul the judgment homologating the proceedings of a family meeting recommending the order appointing defendant as the tutor of said minors, on the grounds :

First — -Because the defendant neither alleged nor proved that there were no relatives of said minors entitled by law to the tutorship.

Second — Because the proceeding of the family meeting were not unanimous, and were therefore illegally homologated.

Third — Because the defendant has not given bond, nor alleged that no one else is willing to accept the tutorship.

Fourth — The father, mother, and grand father of said minors are dead, and plaintiff, their grand mother, is the only relative living entitled by law to the tutorship, which she is willing to accept.

The answer sets up the appointment of defendant upon the recommendation of a family meeting, the proceedings of which were duly homologated, and the issuance to him of letters of tutorship, and contains matters of special defense, and a demand for a bond to be given by plaintiff, if appointed, in favor of defendant for expenses incurred ,in behalf of the minors.

From a judgment in favor of plaintiff, with the condition of giving the bond demanded, the defendant has appealed.

I. It was not incumbent on the defendant to allege or show that there were no relatives of the minors in the State entitled to the tutorship. Article 308, R. C. C., declares it the duty of the relatives, residing within the parish of the judge who is to make the appointment, to apply to such judge, within a given time, to have a tutor appointed when necessary. The plaintiff in this case resides in the distant parish of Caddo, and there is no relative in the parish of the minors.

By article 312, any one may give the information to the judge of the necessity for the appointment of a tutor, but it it is not necessary for such person to show who are entitled to the tutorship. If there be such in the parish they can apply for the appointment or make opposition to any application,’ See also C. P. article 957.

II. The fact that the family meeting were not unanimous in recommending the defendant, may have been a ground for opposing the homologation of the proceedings or the convoking by the judge of another meeting, but it is not a ground for annulling the judgment of homologation or appointment. There is no provision of law making such event a cause of nullity.

III. Article 271, R. C. C. authorizes the appointment of a tutor without bond, upon the advice of a family meeting, when no one will take the tutorship and comply with the law requiring a bond; and it is shown that the defendant had charge of the minors for about seven years before any of their relatives made themselves known, and that only by the application of this plaintiff for the tutorship. The family meeting in this case recommended that the defendant be dispensed from giving bond, as it was shown that the minors owned no property. C. P. 957.

IY. The grandmother, by timely proceeding, could have procured the appointment in preference to the defendant, but the latter having been duly appointed, she can not urge such right as a ground for his removal or the annulment of his appointment.

We think it unnecessary to discuss the questions raised in regard to previous condition and marriage of the parents and grand parents of the minors.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendant, dismissing plaintiff’s demand with costs in both courts.

Rehearing refused.


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    No. 474.
    Mrs. E. V. Elbert and Husband v. Wallace & Co. and J. A. Liddell, Sheriff.
    The objection to the introduction of plaintiff’s testimony as a witness to prove in her own behalf that she was not a member of a certain firm, was properly sustained. If not estopped by her own declarations in an authentic act and in judicial proceedings, plaintiff’s testimony could not have availed to show that she was not a member of said firm against her own solemn declarations in those instruments that she was.
    Appeal from the Fourteenth Judicial District Court, parish of Richland, Bay, J.

      Todd & Potts, for plaintiff and appellant. B. W. & B. BicTiardson, for defendants and appellees.
   Taliaferro, J.

Wallace & Co., being owners of a promissory note executed in their favor by Hanna & Co. for $2016 14, with interest at eight per cent, per annum from May 24, 1871, secured by mortgage executed on the twelfth of June following by R. P. Edwards, who also indorsed the note, took out an order of seizure and sale and caused the mortgaged property, viz., four town lots in the town of Girard, numbered respectively eleven, twelve, thirteen and fourteen, to be seized and advertised for sale by the sheriff. Mrs. E. Y. Elbert, wife of Josiah H. Nettles, joined, and authorized by her husband, sued out an injunction to restrain the sheriff from proceeding to make the sale. The grounds stated for injoining are these:

First — That the plaintiff in injunction is in no manner bound for the debts of Zac. Hanna & Co., and was never a member of said firm.

Second — That she is the owner of lots numbered eleven, twelve and thirteen, seized in this case by the sheriff.

Third — That Edwards, the mortgageor, at no time had an interest exceeding one-half in the mortgaged property, and therefore if he ever mortgaged the property he could only have subjected to the mortgage one-half thereof.

Fourth — That Edwards was not a member of the firm or partnership of Zac. Hanna & Co., nor was he bound for the debts of that partnership. Neither did he assume to pay the debt of Zac. Hanna & Co. to Wallace & Co, nor to make himself personally liable for the same, and therefore that the pretended mortgage is an absolute nullity, as it is not accessory to any debt of the mortgageor.

Fifth■ — That the seizure was not preceded by an amicable demand of the alleged mortgageor according to law, or by notice to petitioner.

Wallace & Co. filed a motion to dissolve the injunction with $250 damages as attorney’s fees, twenty per cent, damages on the amount injoined and eight per cent, interest on the amount of the note sued on from the time the injunction was filed in addition to the interest claimed in the petition until the same is released.

The grounds for dissolution of the injunction are:

First — The amount of the bond fixed by the parish judge is, upon the face of the papers, wholly insufficient to warrant the issuance of the injunction.

Second — The security on the bond is insolvent.

Third — That the authentic documents attached to the petition praying for the order of seizure and sale furnish further evidence of the falsity of every allegation in plaintiff’s petition for injunction.

Judgment was rendered dissolving the injunction and commanding the sheriff to proceed with the sale of the property. It was further decreed that the plaintiff, Elizabeth V. Elbert, wife of J. H. Nettles, and her sureties, Abram Thompson and William T. Oliver, pay insólido to defendants in injunction ten per cent, on $2260 19, the amount injoined, viz., $226 as general damages, and the further sum of $175 as special damages and costs of suit. The plaintiff has appealed.

In the course of the trial, in the court below, the plaintiff was offered as a witness to prove in her own behalf that she was not a. member of the firm of Z, Hanna & Co. This was objected to on the part of the defendants, who produced the authentic act of sale of the property of Z. Hanna & Co. to Ri P. Edwards, and the records of various suits on the docket of the parish court, by which it was shown that that act of sale and those suits were brought by Z. Hanna and Mrs. Elizabeth Y. Nettles, wife of Josiah H. Nettles, styling themselves “members comprising the commercial firm of Z. Hanna & Co.” By these records it was contended the plaintiff was estopped from showing that she was not a member of that firm. The objection being sustained the counsel for plaintiff then offered to introduce the attorneys who had brought those suits, to prove by them that the plaintiff had not authorized them to style her a partner of the firm of Z. Hanna. & Co. This also being objected to, and the objection sustained, the counsel for plaintiff, after defendants had closed their testimony, again offered to introduce the same attorneys as witnesses to establish, by way of rebuttal, the same facts they were at first introduced to establish. This meeting with no better success than in the former instance, the plaintiff reserved a bill of exceptions to the several rulings of the court in relation to the rejection of the evidence.

We think the exception was properly sustained. If not estopped by her declarations in an authentic act and in judicial proceedings, the plaintiff’s own testimony could not have availed to show that she was not a member of the firm of Hanna & Co. against her own solemn declarations in these instruments that she was. 8 N. S. 134; 4 An. 416; 5 An. 18; 6 N. S.

Edwards was the owner of the lots' eleven, twelve and thirteen and fourteen when he executed the mortgage. The note was indorsed by him and identified with the act of mortgage. It is not contended that Edwards was a member of the firm of Hanna & Co., nor do we understand it to be the purpose of the defendants, although he indorsed the note, to render him liable for the debts of Hanna & Co. beyond the property mortgaged. It is not necessary that the mortgage should be given by the person contracting the principal obligation ; it may be given for the contract of a third person.” C. C. 3295, 3297, 3298, et seq.; 1 An. 62

The proceedings in this case throughout, on the part of the defendants, to enforce the payment of their claim against their debtors, seem to have been regular and to have been taken with abundant caution. We think the case on their part fully made out, and see no reason to disturb the judgment of the lower court.

Judgment affirmed.


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    No. 465.
    Julia A. Lewis v. Winston, Morrison & Co., et als.
    Where the wife alleged that she was separated in property from her husband, that the property seized and of which she was in possession at the time belonged to her, and prayed for an injunction to prevent the sale of said property to pay her husband’s debts, the exception that plaintiff had failed to set forth the nature of her title can not be sustained. This is not a petitory action, although the title to property be incidentally involved.
    The affidavit of the plaintiff in injunction, that the facts and allegations set forth are true, is sufficient. It was not necessary to state that they were all true. The importance of the omission of the word all in the affidavit can not be seen.
    The objection that the husband has not authorized his wife to bring this suit was properly overruled. It is alleged in the petition that she is authorized by her husband, and this is not specially denied. But the injunction bond is signed by the husband. That is sufficient proof that he has authorized the institution of this suit.
    Appeal from the Eleventh Judicial District Court, parish of Bienville. Trimble, J.

      I. JB. Watlcins and I). F. Head, for plaintiff and appellee. J. F. Pierson, for defendants and appellants.
   Ludeling, C. J.

Several creditors of 0. f1. Lewis having caused executions to be issued on judgments against him-, caused certain property to be seized and advertised as his. Whereupon his wife, alleging that she was separated in property, and that the property seized belonged to her and was in her possession, obtained an injunction to prevent the sale of her property to pay her husband’s debts. An exception was filed, stating that the plaintiff had failed to set forth the nature of her title, and praying for the dismissal of her injunction. The exception was properly overruled. ■ This is not .a petitory action, although the title to property be incidentally involved. Defendants then moved to dissolve the injunction on the ground that the affidavit is defective. They say: “ The affidavit is that' the facts and allegations in the petition are true, but does not state that they are all true.” We confess our inability to see the importance of the omission of the word “all” in the affidavit.

The next objection, urged orally, is that the husband has not authorized his wife to bring this suit. It is alleged in the petition that she is authorized by her husband, and this is not specially denied. But the injunction bond is signed by the husband to aid and authorize her to sign it. That is sufficient proof that he has authorized the institution of the suit.

The judgment of separation was obtained before the existence of the debts of the seizing creditors, and the property was acquired by the wife after the judgment of separation, and appears to have been exclusively under her control and management. The judgment in her favor is correct.

Ic is therefore ordered that the judgment be affirmed with costs of appeal.


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    No. 491.
    City of Shreveport v. J. W. Jones.
    The judgment appealed from in this case was not rendered without due process of law, as alleged. Publication of notice to the taxpayer, as provided by law, is the mode of citing delinquent taxpayers in the city of Shreveport, and that is due process. The Legislature has the power and discretion to regulate the manner of citing parties to appear before the courts of the State.
    The title of the act incorporating the city of Shreveport is, '‘An Act to incorporate the city of Shreveport, define its limits and provide for its better police and municipal government.” Taxes are necessary to “ provide for the better police and municipal government” thereof, and germane to the objects indicated in the title of the law; and this satisfies the requirements of the constitution.
    Alexander from the Parish Court, parish of Caddo. Oresswell, J.

      T. Alexander, for plaintiff and appellee. J. W. Jones, defendant, in propria persona.

   Ludeling, C. J.

This is an appeal from a judgment condemning the defendant to pay $255 38 city taxes and costs.

The only questions which are cognizable by this court are those relating to the constitutionality of the law regulating said taxes.

First — The defendant says “ the judgment was rendered without due process of law, and is contrary to the constitution of the United States and of this State. The judgment was rendered after due publication of the notice as provided by law. This is the mode of citing delinquent taxpayers in the city of Shreveport, provided by law, and that is due process. The Legislature has the power and discretion to regulate the manner of citing parties to appear before the courts of the State.

Second — Because “the act of the Legislature incorporating the city of Shreveport, approved twenty-seventh of April, 1871, is unconstitutional, and repugnant to article 114 of the constitution of this State, for the reason that the object or objects of the law, as to the mode of citing delinquent taxpayers is not expressed in its title, for which reason, the want of legal citation, the judgment is null and void.”

The title of the act questioned is, an act to incorporate the city of Shreveport, define its limits, and provide for its better police and municipal government.”

This title is comprehensive and full, and clearly indicates the objects of the act incorporating the city of Shreveport. To “provide for its better police and municipal government ” taxes are necessary, and germane to the objects indicated in the title of the law; and this satisfies the requirements of the constitution.

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


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    No. 495.
    The City of Shreveport v. A. Flournoy, Sheriff, et al.
    The objection that there was not sufficient evidence to authorize the order of executory process can not be examined on an injunction. The remedy was by appeal.
    Under its charter the city ot Shreveport has express authority to buy property. Authority to buy carries with it by implication authority to give notes forth© price.
    The objection that the defendant had no title to the lots purchased by the city is of no force.,, IsTo eviction has been complained of, and no tender or offer has been made to return the property to defendant. The city of Shreveport can not keep the property and refuse to pay the price.
    Appeal from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      M. O. JUlsiner, for plaintiff and appellant. Land & Taylor, for defendant and appellee.
   Wyly, J.

The plaintiff appeals from the judgment dissolving the injunction sued out by it to restrain the executory process sued out by the defendant to enforce the payment of the price of three lots sold by the defendant to the plaintiff.

The objection that there was not sufficient evidence to authorize the order can not be examined on an injunction. The remedy was by appeal.

The city passed an ordinance authorizing the acquisition of the property, and under the charter the mayor had authority to carry into effect the ordinance and buy the lots from the defendant. Under the charter, the city of Shreveport had express authority to buy property. Authority to buy carries with it by implication authority to give notes for the price.

The objection that the defendant had no title to the lots is of no force. - No eviction has been complained of, and no tender or offer has been made to return the property to defendant. The city of Shreveport can not keep the property and refuse to pay the price.

The other objections are without weight.

The appeal is frivolous. As no damages have been asked, none can be granted.

Judgment affirmed.


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    No. 490.
    Louisa C. Bracey and Husband v. James S. Ray, Assessor and Collector.
    The right of the Legislature to delegate the power of taxation for municipal purposes to a municipal corporation, and the right to allow the corporation to adopt rules for the collection of the same has already been decided affirmatively.
    Prior to the day on which the sale of the property seized for tax was to take place, the delinquent taxpayer paid the tax, and injoined the sale with regard to the penalty. The injunction improperly issued. After default the penalty was due as well as the amount of the tax and was equally exigible.
    Appeal from the Parish Court, parish of Ouachita. Balcer, J.

      A. L. Blade, for plaintiff and appellee. W. TP. Fanner, for defendant and appellant.
   Morgan, J.

The right of the Legislature to delegate the power of taxation for municipal purposes to a municipal corporation, and the right to allow the corporation to adopt rules for the collection of the same has been decided affirmatively.

In this case the plaintiff was a delinquent taxpayer. The tax was due on the thirty-first December. The moment it fell due and was unpaid, the penalty for her default attached. Her property was seized. Prior to the day upon which the sale was to take place, she paid the tax and injoined the sale with regard to the penalty. The injunction improperly issued. After default the penalty was due as well as the amount of the tax, and was equally exigible.

The position that her property was about to be sold without due process of law is untenable. The seizure was, we think, made in accordance witli law, and the sale was advertised to take place under its provisions.

It is therefore ordered, adjudged and decreed that the judgment of the parish court be avoided, annulled and reversed, and that the injunction herein issued be dismissed, plaintiffs to pay costs in both courts.

Rehearing refused.


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    No. 456.
    Marcellin Gillis v. J. D. Dansby et al.
    A contract made in bad faitb can not be rescinded nnless it operate to the injury of the party complaining. A sale may be fraudulent and simulated, and yet not injure the complaining oreditor.
    Appeal from the Eleventh Judicial District Court, parish of Claiborne. Trimble, J.
    Jury trial, ligan & Hayes, for plaintiff and appellant. J. & J. W. Young, for defendants and appellees.
   Howell, J.

This is a suit to annul a judgment against the defendant, J. D. Dansby, and in favor of his minor children and to set aside a sale of land made under said judgment, on the ground of a fraudulent ■simulation.

The defendants excepted that the petition disclosed no cause of action, in this, that it did not allege that either the judgment or sale ■attached operated to the prejudice or injury of plaintiff, and did not allege that the debtor of plaintiff was insolvent.

This exception should have been maintained and the action dismissed. An action can only be brought by one having a real and •actual interest which he pursues. C. P. 15.

A contract made in bad faith can not be rescinded unless it operate to the injury of the party complaining. R. C. C. 1978. A sale may be fraudulent and simulated and yet not injure the complaining creditor. It may be, so far as the petition discloses, that J. D. Dansby can pay the plaintiff’s claim. The allegation of injury is necessary.

It is therefore ordered that the judgment and verdict below be set ■aside, and proceeding to" render such judgment as should have been rendered on the exception of defendants, it is ordered that said exceptions be maintained and the action of plaintiff be dismissed with costs in the lower court, the costs of appeal to be paid by appellees.


author: Wyly, J

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    No. 435.
    Heirs of M. W. Ashley, deceased, v. Adam Riser et al.
    •One who has availed himself of a judgment and made it his own by issuing & fieri facias and collecting money thereon is estopped from denying its validity.
    Appeal from the parish court, parish of Jackson. JSevis, J.

      Jas, H. llamlett, for plaintiffs and appellants. M. M. Smith, for defendants and appellees.
   Wyly, J

The plaintiffs appeal from the judgment rejecting their Remand to annul the judgment homologating the final account of the defendants, the administrators of their father’s succession, on the ground that they were not cited. In bar of this proceeding the defendants plead that the plaintiffs have acquiesced in said judgment and are estopped, because, they have issued execution thereon and collected under fieri fadas part thereof.

One who has availed himself of a judgment and made it his own by issuing a fieri fadas and collecting money thereon, is estopped from denying its validity. The plaintiffs are estopped from denying the validity of the judgment which they have enforced against the defendants.

They were all of age or emancipated when their attorney issued the fieri fadas and collected the money and they have not disavowed his-authority to represent them.

Judgment affirmed.


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    No. 483.
    Peet, Yale & Bowling v. S. H. Riley & Co. et al.
    Where a promissory note was signed in the name of a partnership after the dissolution thereof by the death of one of the partners and the party who signed it was not authorized to do so for the firm, but where it was also fully proved that the only member of the firm before the court, in his individual and fiduciary character, acknowledged hie liability on the note and promised specially to pay it, and that it was given íor a debt of the firm, which he assumed to pay as the transferree of the interest of the other surviving partner ;
    Held — That he was, under these circumstances, bound to pay the claim sued on.
    Appeal from the Fourteenth Judicial District Court, parish of Richland. Say, J.

      Morrison & Farmer, for plaintiffs and appellants. Wells & Williams, for defendants and appellees.
   Howell, J.

This is a suit on a promissory note signed S. H. Riley & Co., in favor of the plaintiffs, the defense to which is that the note was made after the dissolution of the partnership by the death of one of the parties, and the party who signed it was not authorized to do so for the firm. The proof sustains these facts; but it is also fully proved that the only member of the firm, H. F. Victors, who is now before the court, in his individual and fiduciary character, acknowledged his liability on the note, and promised specially to pay it, and that it was given for a debt of the firm which he assumed to pay as the transferree of the interest of the other surviving partner. Under these circumstances we think he should be held to pay the claim as sued on.

It is therefore ordered that the judgment appealed from be reversed as to H. F. Vickers, and that he be condemned to pay plaintiffs the sum of nineteen hundred and eighty dollars and eighty-four cents,, with eight per cent, interest thereon from twenty-first June, 1872, and costs in both courts.


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    No. 3523.
    Kehlor, Updike & Co. v. Kemble, Hastings & Co.
    The failure of the principal to repudiate immediately, or within a reasonable time, the acts of his agent when informed of them, must be construed into an acquiescence.
    Appeal from the Sixth District Court, parish of Orleans. Cooley, J.

      Breaux, Fenner A Hall, for plaintiffs and appellees. Randolph, Singleton & Browne, for defendants and appellants.
   Howell, J.

The plaintiffs allege that they shipped to the defendants in Boston, Massachusetts, three lots of flour, with instructions to sell immediately on arrival, and that in disobedience to said instructions they held the flour until it greatly declined in value and sold at a loss, for whieh they ask judgment.

The defendants answer that they received the flour to be sold for account of plaintiffs as alleged ; that they made large advances to the plaintiffs on said shipments ; that after the flour was sold and all credits allowed, the plaintiffs were in debt to them for a large balance, which the plaintiffs admitted and promised to pay, and which is claimed in reconvention. Judgment was rendered in favor of plaintiffs for a part of their claim, and the defendants appealed. The district judge thought the plaintiffs ratified the acts of the defendants up to a certain date and made the latter responsible for the loss after that date. We agree with him- that the acts of the plaintiffs during that time were a ratification of defendants’ course, but we think the same effect should be given to the acts of the plaintiffs after the said date. It was on the twentieth July, 1868, that the defendants received the last instructions, and the sales were not completed until in September; but it is shown that the plaintiffs were duly informed, by letter and telegraph, of what the defendants were doing, and they did not object until the sales were closed out and the final account, showing the amount of the loss, was rendered. Having overlooked the departure from former instructions, the defendants might construe their subsequent silence to a similar disposition to take the chances of the market, particularly as the plaintiffs were regularly kept advised of the condition of the market and the difficulty of effecting favorable sales, and of the sales as they were made by the defendants. We think the failure of the plaintiffs to repudiate, immediately or within a reasonable time, the acts of their agents when informed of them, must be construed into an acquiescence. See 3 An. 468; 6 An. 538; 12 An. 159; 7 N. S. 143; 16 La. 51; 18 La. 517.

It is therefore ordered that the judgment appealed from be reversed, that the demand of plaintiffs be rejected, and that defendants recover of plaintiffs on their reconventional demand, fourteen hundred and seventy-eight dollars and ninety-five cents, with six per cent, interest from thirtieth September, 1868, and costs.


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    No. 4807.
    M. D. F. H. Brooks v. Mrs. M. W. Stewart and Husband.
    Where the act of mortgage to secure tlie payment of a note given for a valid consideration by a married woman, separate in property from her, husband, was dated on the eleventh of May, the authorization of the judge dated on the tenth, and the note on the first of the same month:
    Held — That though the note bears a different date from the act of sale and mortgage, it was given for a part of the price thereof; that it formed part of the same transaction, and that the authorization of the judge covered the debt in question, which inured to the benefit of the wife.
    Appeal from the Sixth Judicial District Court, parish of Taugipahoa. Kemp, J.

      K. John Ellis, Wm. Duncan, G. W. K. Marr, for plaintiff and appellant. B. Edwards, 8. D. Ellis, for defendant and appellee.
   Ludeling, C. J.

This is an action on a note for $3000, dated May 1, 1867, due one year after date, executed by the defendant, a married woman, with the authorization of her husband, and it is secured by a mortgage executed by her with the authorization of the judge.

The defense is that the act of mortgage is dated eleventh of May, and the authorization of the judge is dated tenth of May, whilst the note is dated first of May, and that under the authority of Falconer v. Stapleton, 24 An. 89, the subsequent authorization of the judge could not give validity to a pre-existing debt. We are satisfied, in this case, that though the note bears a different date from the act of sale and mortgage, it was given for apart of the price thereof and formed part of the same transaction, and that the authorization of the judge covered the debt in question. And we are further satisfied that the debt inured to the benefit of the wife.

It is therefore ordered and adjudged that the judgment of the court a qua be annulled, and that there be judgment in favor of the plaintiff and against the defendant for three thousand dollars, with eight per cent, per annum interest from eleventh of May, 1867, and costs. It is-further ordered that the mortgage given on the property described in the act of mortgage be recognized and made executory.

Rehearing refused.


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    No. 4788.
    Union Insurance Company v. Succession of C. W. Rodd.
    At tbe maturity of the note sued upon in this case, it was protested without presentation for payment, or demand on any one for payment, and it is not proved that it was impossible to make a demand for payment. This was necessary to bind the indorser.
    Appeal from the Second District Court, parish of Orleans. Tissot, J.

      Kennedy & Glvicvpella, for plaintiff and appellee. Semmes <& Mott, for defendant and appellant.
   Ludeling, C. J.

This is a suit against the succession of an indorser on a promissory note. The defense is want of demand of payment of the maker, and due service of notice of protest on the legal representatives of the deceased.

At the maturity of the note, it was protested without presentation for payment, or demand on any one for payment, and it is not proved that it was impossible to make a demand-of payment. This was necessary to bind the indorser.

In Toby v. Maurian this court said: “It is clear that no recourse can be had against an indorser on a note, until a demand has been made on the maker, if living, or on his heir or legal representative after his death, unless the impossibility of making such a demand is made apparent. * * The authorities on this point, and which support the position here laid down, are numerous, of the highest character and authority, and conclusive on the subject. Chitty, on Bills. 317; Bayley on Bills, 128; 3 Peters, 89; 7 id. 287 ; 7 Mart. 364; 1 Pardessus, 392 ■, Pothier Contrat de Change, No. 146.”

It is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgment against the plaintiff, dismissing this demand as in case of nonsuit, with costs.


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    No. 2396.
    Mary Woods v. J. Viosca, Jr., and Joaquim Viosca.
    The plea of Us pendens is not well founded. The plaintiff is nob shown to have acquired the note from the payee after maturity, and therefore the equities pleaded are not available. The account or indebtedness pf the payee to the maker of the note in a suit pending on appeal, cannot compensate the note held by the. plaintiff, even though she acquired it after due.
    Appeal from the Fourth District Court, parish of Orleans. Théard, J.

      A. JB. hong, Billings & Hughes, for plaintiff and appellee. BB. Mix, for defendants and appellants.
   Wyly, J.

In this suit on a promissory note, there was judgment against the maker thereof, J. Yiosca, Jr., and he has appealed. The plea of Ksjsendens is not well founded. The plaintiff is not shown to have acquired the note from the payee after maturity, and therefor the equities pleaded can not avail the appellant. Besides, the account or indebtedness of the payee to the appellant in a suit pending on appeal, can not compensate the note held by the plaintiff, even though she acquired it after due.

Judgment affirmed.


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    No. 4750.
    State of Louisiana v. The Eclipse Towboat Company.
    This is a suit for the payment of taxes and penalties. The judge a quo erred in including the $2 25 allowed the collector, in the principal or amount of the taxes on which the penalties ave calculated. This sum of §2 25, composed of $2 for the suit and 25 cents for notice, are simply costs and are not a part of the amount due the State.
    In the fieri facias which, it seems, was prematurely issued, the clerk has incorrectly interpreted the judgment and issued execution for items not embraced in the judgment as rendered. The officers of the law, collector, clerk, sheriff and any others, can not be too careful in conforming to the exact provisions of the law in the discharge of their duties.
    Appeal from the Superior District Court, parish of Orleans. Hcmlíins, J.

      A. P. Meld, Attorney General, for plaintiff and appellee. Bellows & Mills, JuKen Michel, T. Gilmore <& Sons, for defendant and appellant.
   Howell, J.

This is a suit for the taxes of 1871, and the defendants complain that there is no evidence, and none was offered to sustain the demand. According to the jurisprudence we must presume the judge had sufficient evidence before him to justify him in rendering the judgment ; but there seems to be an error on the face of the record in the date, from which the penalties are made to take effect, which is probably an error in writing the judgment. The penalties accrue only after December 15, 1872 instead of 1871, and we think the judge erred in including the $2 25 allowed the collector in the principal or amount of the taxes on which the penalties are calculated. This sum of $2 25, composed of $2 for the suit and 25 cents for notice, are simply costé, and are not a part of the amount due the State. We deem it of importance to correct this error, because we perceive from the fieri jadas, which it seems was prematurely issued, that the clerk lias incorrectly interpreted the judgment, and issued execution for items not embraced in the judgment as rendered. The officers of the law, collector, clerk, sheriff and any others, can not be too careful in conforming to the exact provisions of the law in the discharge of their duties.

It is therefore ordered that the judgment appealed from be amended to read as follows :

“It is ordered, adjudged and decreed that there be judgment in favor of the plaintiff, the State of Louisiana, and against the defendant, Eclipse Towboat Company in the sum of seven hundred and fifty-two dollars and fifty cents, with twenty-five per cent damages for each year or part of year, from fifteenth December, 1872, until paid, five per centum on the total as attorney’s fees, two dollars and twenty-five cents to the tax collector, and the costs of suit in the lower court.


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    No. 4667.
    Widow George L’Hote v. Andre Dubuch and Widow Dubuch, Administratrix.
    ■Where the order directs the mortgaged property to be sold according to law, and the writ of seizure has no reference whatever to a certain sum of $49 80, as insurance premium, the plaintiff must be presumed to have abandoned the claim first set up for it.'
    Appeal from the Sixth District Court, parish of Orleans. Saucier, J.

      W. F. Murphy, for plaintiff and appellee. F. Fuselier, for defendants and appellants.
   Taliaferro, J.

Andre Dubuch and widow Dubuch, administratrix, appeal from an order of seizure and sale granted upon a mortgage note for the sum of five thousand dollars with interest.

The defendants have filed an assignment of errors in this court; the one principally relied upon seems to be that the order directs that the five per cent, attorney’s fees be charged on the sum of $49 80, insurance premium of which no authentic evidence shows either the payment or the amount.

The order directs the mortgaged property to be sold according to law, and the writ of seizure has no reference whatever to the $49 80 as insurance premium, and the plaintiff must be presumed to have abandoned the claim at first set up for it. The defendants can receive no injury from it.

It is therefore decreed that the order appealed from be confirmed with costs.