author: Bermudez, C. J. Manning, J.

text:
    No. 9293.
    Nathaniel T. Edson vs. Morris McGraw et al.
    It is tlie duty of clerks of court, in making transcripts of appeal for transmission to this Court, to observe tlie rules of this Court and the law relative to the confection of such transcripts.
    “Where transcripts transmitted here, under a certificate attesting their completeness, are materially deficient by the fault of the clerk making the same, the Court will not permit them to be patched up by additional or supplemental transcript, but will order the clerk to make, at his cost, a new entire transcript of the record below, such as he should have made at first under the rules of the law, and will eventually exercise its punitory powers and inflict a fine. It. S. 1907.
    An unverified charge that a transcript is defective by the fault of the appellant will not j ustify the dismissal of the appeal.
    The appellant is protected by the full certificate of the clerk, where it is not shown that he knew the transcript to be deficient, and procured the certificate notwithstanding.
    The clerk of the district court will not be held to make, at his cost, a new transcript, although that filed here was made in disregard of the rules of this Court, and is defective, where it is claimed by him that the transcript was thus made by the appellant, or under his supervision. The question of cost should remain an open one.

      Where there has been a written, agreement to sell real estate upon specified conditions and tor a price mainly on credit, with the stipulation that if the payments are not made the seller shall have the option to cancel the contract upon giving the buyer thirty days’ no tice, and may impute the payments already made as rent, and the buyer abandons the contract and himself gives notice to the seller of his surrender of all rights thereunder, the latter is dispensed with the duty of giving the notice stipulated in the contract. It would be a vain and superfluous thing to do.
    Parol proof is admissible of the acto of one pretending to rights under a written agreement to sell real estate for the purpose of shewing that such acts are inconsistent with and repugnant .to a claim of ownership under such agreement, and that they repel the reality of such claim andjdemonstrate the fraudulent pretention setup at a late day, of ownership or of rights to ownership under such agreement.
    PPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Walter H. Rogers for Plaintiff and Appellant.

      Joseph P. Honor and Francis W. Baker for Defendants and Appellees.

      Fred. I). King for the Clerk of the Civil District Court.
   On Motion to Dismiss and for Certiorari.

The opinion of the Court was delivered by

Bermudez, C. J.

The appellee complains that the transcript is made in violation of the rules of this Court and is materially deficient.

Since the filing of the motion to dismiss, and before its calling, the appellant has moved for an order on the clerk of the district court to complete the record, siiecifying the documents desired.

There is no verified averment that the transcript is incomplete by the fault of the appellant, who is protected by the clerk’s certificate which attests the fullness of the record.

It is apparent that the transcript was made in such utter disregard of the rules of the Court, that far from facilitating, it embarrasses an investigation of the case.

We will not undertake to enumerate the many different particulars in which it thus violates those rules, but simply refer to the motion to dismiss for specification on the subject.

It is proper that the attention of the clerk of the lower court' be drawn, not only to the rules of this Court, hut also to section 1907 of the R. S., which vests this Court with certain punitory powers to he exercised where the irregularities and deficiencies which exist in transcripts are attributable to the clerk.

We cannot dismiss the appeal and must grant the motion of the appellant. We will reserve the rights of the appellee, if auy, to move seasonably for the dismissal of the appeal, after the motion of appellant will have been acted upon, should the transcript then be defective-by appellant’s fault; but, in as much as compliance with that motion would amount to a patching up of the objectionable transcript, we think that the clerk should be made to do what he has omitted and should do.

It is therefore ordered that the clerk of the civil district court for the-parish of Orleans do, within a delay of fifteen days, make such new transcript of the record below, as the rules of this Court and the law require, at his costs, under penalty of such fine as the' Court may deem proportioned to a dereliction of duty on his part in the matter.

On Petition nor Rehearing.

The clerk of the district court complains of our previous decree-directing him to make a new and proper transcript, at his cost, of therecordj of the case below, claiming that the transcript, which was filed here and which he admits was not made in conformity with the rules of this Court—was made by the appellant, or under his supervision,, and was known to be incomplete and defective by the appellant who assumed all responsibility in the premises.

The clerk, under that state of facts, is censurable. He should not have issued the full certificate which is attached to the transcript and which has become, at this stage, a shield to the appellant, whose acts-of omission and commission he has made his own.

Had the appellee, in support of the averment of incompleteness of' the transcript by the fault of the appellant, produced the proof which the clerk relies upon, the motion to dismiss might have prevailed; but this he has not done.

If it be true, as the clerk charges, that the appellant is at fault, it would not be just to have him to make the transcript at his cost. The-appellant should be required primarily to pay those costs, as is usual in appeals generally, without prejudice to his right, which is reserved,, of claiming reimbursement of the same from the clerk, who otherwise should have had to bear the same.

It is therefore ordered that the words “ at his cost" found in our previous decree, be stricken therefrom, and the words “at appellant's cost"' be substituted thereto, and that thus amended the said decree remain undisturbed.

On the Merits.

Manning, J.

The action is to compel the execution of a title to two-improved Lots with pottery-machinery in this city, or in default thereof' to recover three thousand dollars as their value.

These lots belonged to McGraw and had been leased to one Miller-who was a good-for-nought and an unsatisfactory tenant. Swan was-his friend and relative and desired to help him, and for that purpose bargained with McGraw to buy the lots and pottery, but as Swan did not wish on some account to appear in the transaction, it was agreed; that Edson should be the nominal purchaser. Accordingly on August 1, 1880, McGraw made a written agreement with Edson to sell him the-property for two thousand dollars of which two hundred were paid cash with the stipulation when eleven hundred dollars were paid Mc-Graw would make title and retain a mortgage i or the residue. This-agreement was not recorded until another disposition was made of the-property as we shall see later on.

Miller remained in possession and he or Swan delivered pottery toMcGraw of the value of $322.65. No other payment was made.

The agreement to sell contained the stipulation that if after thirty days notice to pay as agreed on for the credits the payment or payments were not made, then whatever had been paid should be considered as rental of the property at fifty dollars a month and McGraw should have the option to reclaim the property.

Some time passed. Miller was an ingrate and offered violence to his-benefactor Swan, and once when Swan came on the premises threatened to shoot him. Swan was frightened by the demonstration and. determined to wash his hands of Miller and his business. He accordingly told McGraw he would have nothing more to do with the matter— would pay no more-and what was paid might go as rent and if there-was any surplus he would sooner lose it than be in fear of his life from Miller’s violence. He never made any claim afterwards of the property,, nor did Edson say anything about it to McGraw.

McGraw then, about February 1881, made a new lease to Miller who-took Pajenski into partnership in the pottery business. They soon quarreled and separated, and in April 1881 McGraw sold the property to Pajenski and in the following month Miller sold to Pajenski some of' the pottery and left. Pajenski recorded his title and took possession., Edson was all the while silent, but after Pajenski’s title had been recorded, he recorded his Contract for the sale.

Miller’s wife then brought suit against McGraw for the property on some pretence which of course came to grief, and then Edson instituted this suit. He claims that the property has all along been his, and that the rents McGraw has received from Miller and Pajenski have more-than paid the purchase price, and he sues to recover the surplus and to compel McGraw to complete his title or pay him the sum first above mentioned.

It is manifest he has not the shadow of a claim. The facts detailed, •culled with infinite labour from a record that is a mass of incoherent confusion, exhibit him without any ground upon which to base his pretentions. He relies upon two special objections to heaving the defence.

1. No notice was given as required in the contract of sale that McGraw would avail himself of his option to cancel it and consider the payments as rental. None was needed because Swan, the real party to the contract, had himself told McGraw he was done with the matter and would make no claim for the surplus of payments over the rental. Notice by McGraw to Swan was idle and vain when Swan had given notice that he no longer claimed any right under the contract. Green v. Fonbcne, 2 Ann. 957. The objection is an afterthought for there is no allegation in the petition of the want of putting in default.

2. That all the parol proof of Swan being the real party to the contract of sale with McGraw and of his and Miller’s payments thereunder, and of Swan’s subsequent abandonment of it, was improperly received because inadmissible to contradict or vary the written agreement.

The whole defence is based on the simulation to which Edson was a consenting party and is set out in the answer. The testimony was not so much of declarations of any or all the parties as of the acts of Edson—his continuous silence and inaction when Miller, whom he •claims was his tenant, was ejected from the premises—when an actual sale was made to Pajenski and recorded—his failure to record his own contract, which he claims made him owner, until after Pajenski’s sale had been recorded—his standing by quiescent during the progress of Mrs. Miller’s suit against McGraw without complaint or intervention— Edson never made of McGraw any claim, demand, complaint or remonstrance, nor did he ever speak to him about the property, its rents or tenants from August 1880 when he pretends to have bought until November 1882 when this suit was instituted. Yet during the whole of this interval tenants were changing, disputes between Swan and Miller were recurring, a sale was recorded of the property to another person, a suit had been instituted by yet another to recover it, and he opened not Ids mouth. Where a party thus acts so as to forbid the belief that he lays claim to property and his conduct is inconsistent with tlie pretention of ownership, and tlie paper-writing under which he claims title is withheld from the public records, he cannot after-wards set up his title to defeat a sale made to another in good faith. This would protect Pajenski, and parol evidence of such acts is admissible to shew the fraudulent pretence under which ownership is claimed against MeG-raw. Bordelon v. Blancand, Manning’s Unrep. Cas. 116; Gardiner v. Dezutter, Idem, 213.

The lower judge took this view of the case and the defendants had judgment.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

author: PocnÉ, J.

license: Public Domain

text:
    No. 9394.
    John E. Leonard vs. the Sheriff et al.
    The holder of a conventional mortgage which does not contain the pact “ ele non aliencmdo ” cannot reach the mortgaged premises, if it has been subsequently transferred, in the hands of a third possessor, holding the same under color of title, by a direct seizure on a judgment obtained against the original mortgagor. His recourse is exclusively through the hypothecary action proper.
    It is no defense to the injunction of the thiid possessor, to allege the nullity of his titles, unless such nullity is apparent on the face of the papers.
    The enforcement of his prior lien must bo obtained by means of the hypothecary action. The nullity of the third possessor’s title must be presented and can be considered only in a direct action. >

    APPEAL from the Eighth. District Court Parish of East Carroll. Deloney, J.
    <7. ill. Kennedy for Plaintiff and Appellant.

      J. W. Montgomery for Defendant and Appellee.
   The opinion of the Court was delivered by

PocnÉ, J.

Plaintiff alleging his ownership and possession of the •“ Oakland Plantation,” in East Carroll, has enjoined the sale of the undivided half of the same, provoked by John R. Conant in execution of a judgment which he had obtained against J, 0. Pierce, Jr., making executory a mortgage granted by the said Pierce on the property seized herein, to secure the payment of certain notes representing part of the purchase price thereof. He appeals from an adverse judgment. A proper understanding of the pleadings will be facilitated by a statement of the following salient facts, which bear on the issues which will be considered in this opinion.

John 0. Pierce, Jr. bought the undivided half of this plantation from his father and mother, on the 5th of April, 1871, by a sale under private signature; and in part payment of the price, he executed the notes now held by Conant. The act stipulated a mortgage to secure the notes, but it did not contain the pact de non alienando, and being a private instrument, it did not import a confession of judgment.

At the instance and on the complaint of certain creditors of J. 0. Pierce Senior, the district court subsequently rendered judgment, annulling the sale made by the latter to his son in April, 1871, as. having been made in fraud of creditors. On appeal taken by Pierce Jr. only, that judgment was reversed by this Court. Currie, King & Co. vs. J. O. Pierce, 27 Ann. 268.

But pending the appeal, which was devolutive only, the judgment of the district court was executed, and at the sale made thereunder, the property seized was adjudicated to J. Edwards Leonard, the son of' the present plaintiff. At that time, the other half of the plantation was owned by Frank M. Hoppin and J. 0. Pierce Jr., in equal shares. Soon after his purchase at the sheriff’s sale on March 8,1875, J. Edwards Leonard sold his half of the plantation to F. M. Hoppin, who thus became the owner of three-fourths of the property, in indivisión with J. 0. Pierce Jr., who owned the other fourth.

On the 19th of June following, the whole property was sold for taxes by the collector, and adjudicated to J. Edwards Leonard, who thus became the purchaser of the whole plantation.

On the 29th of June, 1877, he executed an instrument in which he declared that his purchase of the Oakland plantation ” had been made in behalf and for the account of John E. Leonard, his father,, the present plaintiff. That instrument, after proof as required by law, was inscribed in the proper conveyance office, on May 6, 1878. All other acts of transfer and conveyance hereinabove referred to were duly inscribed in the proper office.

The suit of John R. Conant, looking to the execution of the mortgage granted by J. 0. Pierce Jr., mentioned in the first part of this opinion was filed on the 24th of June, 1877, and ripened into judgment on the 21st of June, 1878.

J. Edwards Leonard, who was alleged to be in “ possession of said ‘ Oakland plantation ’ claiming to be the owner thereof,” was brought into the suit as a defendant, but on account of an exception interposed by him on the ground that the proceedings were irregular, no judgment was rendered against him.

On tlie 22nd of July, 1879, Conant brought suit by the hypothecary action, on the same mortgage against E. M. Hoppin, whom he alleged to be then the owner, and in the possession of the mortgaged premises, .and he obtained a judgment enforcing his mortgage against the property in question as that of Hoppin.

The execution enjoined was predicated on that and on the judgment previously obtained against Pierce Jr.

Setting up his ownership to the property seized, under the chain of titles which is hereinabove recited, plaintiff .contends that his property is not burdened with the mortgage claimed thereon by the defendant Conant; and that such mortgage, if it did exist, could not be enforced against his property otherwise than by the regular hypothecary action brought contradictorily with him, as a third party in possession under color of title.

His action is met by numerous defenses, which substantially deny his alleged titles, and allege the nullity of the sheriff’s sale of March 8, 1875, as well as the nullity of the tax sale of June 19, 1875.

Under our views of the issues involved in this case, che question which stands at the threshold of the controversy involves the discussion of the right of plaintiff as' a third possessor of mortgaged property to urge and contend that he can only be reached by means of the hypothecary action proper.

He was not a party to either of the judgments sought to be enforced against the property in his possession, and which he claims to own. J. Edwards Leonard, under whose title he holds, and who was in possession in 1877, when suit was filed against Pierce Jr., was not a pgrty to the judgment rendered in that case, and therefore plaintiff cannot be concluded in his legal rights by either of the judgments declared upon by Conant. The latter failed to allege, either in his answer to the present action, or in his petition of July 22, 1879, against Hoppin, how, when and by what rights or acts the latter had acquired either the ownership or the possession of the mortgaged premises, so as to enable him legally to stand in judgment in the hypothecary action then brought against him. He surely cannot mean that Hoppin had acquired either title or possession under his purchase from J. Edwards Leonard, because the main ground of his defense rests on the alleged absolute nullity of the latter’s purchase at the sheriff’s sale of March 8, 1875. That • pretension would be destroyed by the simple effect of his judicial declarations.

Besides, the record shows that soon after his purchase from J. Edwards Leonard, Hoppin was divested of his title by the tax sale of June 19, 1875, at least as long as that sale is not annulled by a judgment.

The proof is ample in the record that, under the latter sale, J. Edwards Leonard went into undisputed possession of the property, and that his possession, continued in his father since May, 1868, has never been interrupted for a moment. The property has during all that time been continuously leased, and its rents and revenues regularly collected for the one and the other as successor, by the same person as the agent successively of both.

It is plain to the legal mind that, in a pursuit like that followed by the defendant Conant, the main question involves his mortgage rights on the property, and the mode of enforcing the same, and that the validity of the third possessor’s title is a question of secondary consideration.

This principio was recognized in the earliest stages of our jurisprudence.

In the case of Richards vs. Nolan, 3 N. S. 336, the same issue was presented and the court held that the mortgage rights could nqt be exercised directly against the third possessor, on the ground that the latter’s purchase was fraudulent and null.

The court said: The evidence establishes that both vendor and vendee continued to reside on the premises after the sale. In such a case possession follows title. Consequently the defendants could not seize and sell the property as that of the vendor. If they or either of them had a previous lien, they should have proceeded against the plaintiff who stood in relation to them as a third possessor, by the action of mortgage., 0

If the sale to the plaintiff was fraudulent, suit should have been brought to set it aside. They could not treat it as a nullity and sell the property as if no alienation had taken place.”

This is precisely the course pursued by Conant in this case. And yet it does not lie in his mouth to say that he was ignorant of the alienation which took place from Hoppin and Pierce Jr., to J. Edwards Leonard, under the tax sale of June, 1875, for he is estopped by his own solemn declaration made in his petition of June 29, 1877, in which he makes him a party to the suit, as the party in possession, claiming as owner.

Plaintiff exhibits titles which are translative of property, and are not null on there faces. Their validity cannot be questioned collaterally, and can be determined in a direct action only. Ludeling vs. McGuire, 35 Ann. 893. As a third possessor under sucli titles, not under a “clandestine possession,” or as a “squatter,” as argued by defendant’s counsel, he is entitled to be maintained in his possession^ until ousted under and by means of proper legal proceedings; either by the hypothecary action proper, or by a direct action of nullity.

We have already shown that his mortgage did not contain the clause. de non alienando, hence he cannot be permitted in law to ignore the subsequent transfers of the mortgaged premises.

It may be that on proper showing, these transfers will he found tainted with fraud, and will be declared null.

On that point we do not and we cannot now express any opinion. Under the pleadings we aro compelled to enforce the plain rule of practice, which is clearly laid down in our code, and which has frequently been considered and expounded in the decisions of this Court. Waddill vs. Payne & Harrison, 22 Ann. 134 ; Taylor vs. Pipes, 24 Ann. 551. (See authorities quoted in the last decision).

We therefore conclude, that plaintiff as third possessor could not be reached otherwise than by. the hypothecary action, and that there is error in the judgment of the district judge which dissolved his injunction. The defense, which charged irregularity in the mode of proceeding, should have prevailed, aud on that ground, we must maintain the injunction.

For those reasons, it is ordered that the judgment appealed from be annulled, avoided and reversed; and it is ordered and decreed, that the injunction herein sued out by plaintiff be perpetuated, and that his property be released from seizure, costs in both courts be paid by the defendant, John R. Conant.


author: Manning, J.

text:
    No. 9352.
    John Valentine vs. William C. Hawley.
    Where a power of attorney empowers an agent to sella lot at the corner of two streets and the deed of the ageut specifies which corner by mentioning the boundaries of the square in which the lot is, the indefiniteness of description of the lot in the power of attorney is cured by the full description of its locus in the deed, and a purchaser of the lot hy public auction is not justified in refusing to comply with his bid because of the indefiniteness of description in the power of attorney.
    Such, refusal is the less justifiable when the original vendor who is the author of the power of attorney did not own a lot at any other corner of the named streets, and he and they who hold under him have possessed the lot thirty years.

      APPEAL from the Civil District Court for the Parish of Orleans. Lamms, J.

      Gibson, Hall & Montgomery for Plaintiff and Appellee.

      J. JD. Kiernan for Defendant and Appellant.
   Tlie opinion of the Court was delivered by

Manning, J.

The object of this suit is to compel the defendant to ■comply with his bid for certain property made at a public auction. His refusal is based on the indefiniteness of the description of the property in the power of attorney under which the plaintiff’s deed was made and the consequent uncertainty of its locus.

The description in the deed is as follows:—“a certain lot of ground together with the buildings and improvements thereon * * situate in the Eaubourg Tremé second district of this city in the square bounded by Bienville, Marais, Conti, and Trémé streets having American measure thirty one feet eleven inches and five-eighths front on Bienville street, by a depth and front of ninety two feet eight inches and five-eighths on Marais street, of which it forms the corner as per plan drawn by J. N. Depouilly on Dec. 12, 1850, which property was acquired by the present vendor by purchase from Camille Thierry on April 11, 1866.”

The plaintiff bought from Thierry’s vendee, a widow McQueen, in June 1866 and lias been in continuous possession since. Thierry bought in January 1854. The deed from him to the widow McQueen has the same description of the property as that from her to the plaintiff, but his deed was executed under a power of attorney from Mm to one Foy and that instrument empowers Foy to sel} a“certain lot or portion of ground with the buildings and improvements thereon situate in this ■city, forming the corner of Marais and Bienville streets.”

The defendant’s objection is that as there are four corners of those streets, he is justified in rejecting' a title made under an authorization that does not specify which corner is the locus.

The evidence abundantly shows that Thierry owned no property but this at the intersection of Marais and Bienville streets, and that he and they who hold under him have possessed this property thirty years. But independent of this proof, the specification of the particular corner in the deed,cures any vagueness in the description in the power of attorney. That instrument empowered the agent to sell a lot at the cornel- of two named streets and the deed made by the agent described which corner the lot on was by mentioning the boundaries of the square of which it formed a part. ■*

The objection of the defendant to the title tendered him is not good and so the lower court held.

Judgment affirmed.


author: Fenner, J.

text:
    No. 9383.
    John I. Adams & Co. vs. Temple S. Coons et al.
    The State court has jurisdiction of a hypothecary action to enforce a judicial mortgage resulting from the inscription of the judgment of a Federal Court.
    The inscription of the judgment of the Federal Court sitting in this State, creates, equally with that of a judgment of a court of the State, a judicial mortgage.
    The effect of a judgment declaring the simulation of transfers and. unmasking the title of the real owner, is not confined to the plaintiff in the suit, hut places the property as if the simulated title had never existed and subject to the rights of all creditors according to the rank which the law acfcords them.
    The pledgee of collaterals, who proceeds for a judicial foreclosure of his pledge, is not debarred from purchasing at the judicial sale thereof.
    Objection to the capacity of plaintiffs to stand in judgment not raised by the pleadings will not be noticed.
    The credit claimed for the $2500 paid by Friedlander, is allowed for reasons given in Adams & Co. vs. Friedlander.
    APPEAL from tbe Eighth District Court Parish of Madison. Déloney, J.

      Wade B. Young for Plaintiffs and Appellants.

      A. L. Slade and IT. P. Wells, contra.

   Tbe opinion of tbe Com-t was delivered by

Fenner, J.

Temple S. Coons, a sole trader under tlie name of Temple S. Coons & Co., being indebted to plaintiffs for goods sold, furnished bis notes therefor payable to their order, and secured the same by the pledge of certain collaterals.

Subsequently tbe notes of Coons, with the endorsement of John I. Adams & Co., passed to the Importers & Traders’ National Bank of New York, and by a written act signed by Coons as well as tbe other parties, tbe collaterals were passed to said bank in pledge to secure tbe payment of the principal notes, and with express authority in said bank, in ease of their non-payment at maturity, to sell the collaterals at public or private sale, to apply tbe proceeds to tbe payment of tbe notes, and to account for any surplus thereof to Adams & Co., t-he ori~ ginal pledgees, whose liability to the bank as endorsers on the notes was recognized and continued.

Tiie principal notes remaining unpaid, after several extensions granted with the written consent of Coons, the bank, instead of availing itself of the privilege of non-judicial sale, elected to proceed for a regular judicial foreclosure; and to that end instituted a proceeding in equity in the Circuit Court of the United States sitting in New Orleans against Coons, wherein it prayed for judgment against, him for the amount of the notes, for a recognition of its privilege as pledgee on the collaterals duly described, and for a decree directing said collaterals to be sold and proceeds applied to the payment of their said debt.

Subpoma issued and was duly served upon Coons personally.

He entered no appearance in the case, and after proceedings entirely regular, a final decree pro confesso was entered, adjudging that the bank “do recover from Temple S. Coons the sum of $5,507.58, with interest, etc.; ” “ that the pledge of collaterals sc-t forth in said bill and exhibits be recognized, made executory and foreclosed; that the following notes embraced in said pledge be sold thereunder (describing them); that sale be made by public outcry on the steps of the Customhouse by F. A. Woolfley, who is hereby appointed special master and commissioner for that purpose, after ten days’ advertisement in the New Orleans Picayune, and for cash to the highest bidder.”

This decree, in all its parts, including the right to sale and the mode of sale therein directed, is res judicata as to Coons, and precludes all question thereof by him.

The sale was made by the special master iu strict conformity to the decree and the collaterals were adjudicated to the plaintiff bank as the. last and highest bidder.

The master’s report of the sale was duly filed and entry thereof was made iu the chancery order book, notifying all parties in interest thereof; and it does not appear that any opposition thereto was ever made.

Thereafter the bank brought suit against John I. Adams & Co. as ■endorsers for the balance remaining due on the notes after crediting the proceeds of the collaterals. Adams & Co. having iu the meantime effected a composition in bankruptcy with their creditors at fifty cents on the dollar, the bank recovered final judgment against them for that proportion, being the sum of $2584.48 with interest, etc., which was subsequently paid.. In 1883 the old firm of Jno. I. Adams & Co., composed at first of J. I. Adams, Renaud and E. C. Adams, and later of J. I. Adams and Renaud alone, ceased to exist, and a now firm was formed, composed of these two and of J. G. Ong and F. A. Bonito,' which firm is the party plaintiff herein. The evidence of Renaud shows that this firm lias no connection with tlie former ones, does not own their assets and is not liable for tlieir debts.

To this firm, upon considerations stated and satisfactoiy to the Importers and Traders’ Bank, the latter transferred the judgment held by it against Temple S. Coons, with full subrogation. This transfer was made on March 21, 1884, and the evidence shows that the plaintiff firm not only owns that judgment, but also owns the claim of the old firm of Adams & Co. against Coons for the restitution of the amount paid ■on the judgment against it as endorser of his notes.

The judgment against Coous liad been recorded in the parish of Madison, and operated a judicial mortgage upon the immovable estate of Coons there situate.

The <l Killickrankie” plantation, which had formerly been the property of Coons, had been passed from him through sundry convey■anees to his wife, Mrs. Annie E. Coons, in whose name the apparent title stood. This apparent title was attacked by creditors of Coons as ■a sham, by an action en declaration de mrmilation, and by a decree of this Court rendered iu ¡883, the said title was annulled and the said plantation decreed to be the property of Coons. See Eriedlander vs. Broolcs et als, 35 Ann.

Tlie present is a hypothecary action brought by plaintiffs, as ■owners of tlie judgment of the bank vs. Coons, against Coons and his wife, praying for judgment against them recognizing and making ex-ecutory the judicial mortgage on Killickrankie, resulting from its registry, and for a writ of seizure and sale thereof for the satisfaction of said judgment and costs.

Adams Kellogg, wdio is tlie transferee of the judgment of Eriedlander vs. Coons, also operating a judicial mortgage on Killickrankie and also ■of the rights of Eriedlander under the judgment annulling the title of Mrs. Coons, and declaring Killickrankie to be still tlie property of ■Coons, intervenes in tlie case and joins the defendants in opposing tlie ■demands of plaintiff.

Numerous interesting legal questions are presented which we will successively dispose of.

1. Objection is made to the proceeding- in the State Court, on the ground that it is a proceeding to execute a judgment of the Federal court. We do not find, any weight in this. It is an ordinary hypothecary action to have the mortgage resulting from the inscription of tlie Federal judgment made executory. It is into that plaintiffs might perhaps have issued execution on tlie judgment ; hut if they preferred the more cautious course of having all possible objections to their mortgage settled before risking a seizure of the property, we see no right or interest of defendants to forbid them, nor do we see any obstacle to the competency of tlie forum.

2. It is claimed that the inscription of the judgment of tlie Federal court does not create a judicial mortgage. We ibid no force in this position. Tlie Code makes no distinction between judgments rendered and executory in this State, whether by Federal or State courts. The only discrimination is against “judgments rendered in other States of, the Union or in foreign countries,” which do not operate a mortgage,, unless they have first been rendered executory here by judgment of a tribunal of this State. C. C. 3321, 3322, 3326.

The plaintiff’s judgment was rendered in this State by a competent tribunal and is executory here, and its inscription undoubtedly gave rise to the judicial mortgage.

3. It is claimed that plaintiffs can take no benefit from the judgment in the case of Friedlander vs. Brooks ot al, annulling the pretended title of Mrs. Coons and declaring Killickrankie to be the property of Temple S. Coons, but said judgment only availed Friedlander and entitled him to be paid by preference. If the action had been merely revocatory, such would have been the law; but being purely an action an, declaration da simulation, it is well settled that the effect of the judgment was to unmask the title in favor of all creditors and all persons interested and to declare that the property had never ceased to be the property of the debtor. Lucas vs. D’Armand, 11 Ann. 168; Dunn vs. Woodward, 11 Ann. 265; 1 Larombiere Theory of Obns. p. 776.

The property stands in the hands of the debtor precisely as if such simulated transfer had never made, and subject to all rights attaching thereto. The creditor, at whose instance the simulation has been pronounced, acquires no preference thereby, but has his recourse against the property only in common with other creditors and according to the rank which the law accords them.

4■. It is claimed that the judgment of the Importers & Traders’ National Bank had been extinguished by the collaterals which the bank held in pledge therefor; that the purchase of said collaterals by the bank at the sale thereof, was a nullity, because the bank was incompetent to buy; that, after its said purchase, the bank still held said collaterals for the benefit of Coons, and had realized from them an amount sufficient to extinguish the entire claim against him.

Waiving all oilier questions, wo cannot affirm the alleged incompetency of the bank to purchase at the foreclosure sale.

Defendant contends that a pledgee is the trustee of the pledgor and ■his agent to sell; and he. invokes the equitable maxim that such a trustee is disable, 1 o purchase for his own benefit at the sale of the trust property.

He refers us to 1st Hare & Wallace’s leading cases in equity, p. 125, ei seq. where, the learned compilers have collected a multitude of cases, illustrating the maxim referred to. After careful reading, we discover none applying it to the capacity to a pledgee to purchase at a sale under judicial foreclosure; nor has counsel referred us to any authority elsewhere! supporting such a doctrine.

We think the maxim has no application to this case. The pledgee is, in a certain sense, the agent and trustee of the pledgor, that is, for the care and custody of the thing pledged, an.d for its proper administration.

Had the hank availed itself of the. power granted in lire act of pledge to sell the property at private or public sale, there might have been some room for the application of the maxim. But the bank did not do so. It preferred to proceed in the mode authorized by Art. 3165 of the Code, to obtain a judgment in ordinary course of law and to subject the pledged property to sale in execution of the judgment. We consider the proceeding in equity in the U. S. Court the entire equivalent of judgment, seizure of the pledged property under execution thereof audits sale by the executive officer of the court. We cannot conceive of any reason why the pledgee, as judgment creditor in such case, should not have liad the same right to purchase as would any other judgment creditor who had seized the same property. To hold otherwise would he to make the pledge a disadvantage rather than a benefit.

Even in eases of trustees proper, 1o whom the rule would ordinarily apply, it seems to he a matter of course when it appears that the trustee has a personal interest in the sale, which might be sacrificed if he were not permitted to bid, for the Court of Chancery to give him leave to purchase, DeCarters vs. DeChaumont, 3 Paige 178.

The right of the pledgee to purchase at a foreclosure sale seems fully recognized, without such authorization. Quincy vs. White, 63 N. Y. 370; Newport vs. Douglas, 12 Bush 720.

Certainly, under Louisiana Law. when the pledgee proceeds to obtain a personal judgment against the. pledgor and to subject the property to sale under execution thereof, lie stands in consimili casto with any other judgment creditor and may prevent the sacrifice of the property by bidding at the sale.

This sale terminated the interest of Coons in the property sold and he has no concern with the subsequent disposition thereof. He received credit for the price thereof, and this is all to which he was entitled.

The clamor about fraud and malpractice is sustained by no evidence whatever. Indeed, with the exception of the testimony for plaintiff, the record presents nothing but documentary evidence and that discloses only legal proceedings, perfectly regular and valid on their face. If Coons has suffered any loss in the sale of these collaterals at a vile price, the lesion affords him no legal ground of relief, and he has only his own laches and negligence to blame.

5. The objection to the sufficiency of plaintiff’s title to the judgment sued on is not presented, as should have been, in the pleadings. Plaintiff stands as transferee of the judgment on the record of the United States Circuit Court, by a transfer executed by the attorneys of record of the original plaintiff; and their authority to act for their client not having been put at issue by any plea, we are not called on to question its sufficiency.

O'. The question raised in argument as to failure of the old firm of Adams & Co. or the bank, to account for certain other collaterals not included in the foreclosure sale, can receive no attention, because a careful study of the pleadings shows no reference to any such issue.

7. The credit claimed for the $2500 paid by Friedlander 'must be allowed; the reasons for which sufficiently appear from the opinion this day delivered in the case of this plaintiff against Friedlander.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the judicial mortgage existing in favor of plaintiff's and resulting from the record of the. judgment described in the petition, for the sum of $5507.58 with 8 per cent per annum interest on $3671.72 from December 21, 1878, and on $1835.86 from December 28, 1878, less the sum of $472.00 paid February 16, I87Í), and the further sum of $2500 paid February 15, 1883, with like interest on both said payments from respective dates thereof—be recognized and made executory against the Killickrankie plantation, and that a writ of seizure and sale issue to the sheriff of Madison parish, commanding him to seize and sell said plantation to pay and satisfy said debt and costs, appellees to pay costs in both courts.

Rehearing refused.


author: Poems, J.

text:
    No. 9327.
    The State of Louisiana vs. Robert Williams alias “Blinkey Bob.”
    This is an appeal from a conviction of murder and a sentence of death, in which the record «•ontains no plea oi proceeding within the province of the Supreme Court in criminal matters, and is not even supported by a brief of counsel for the appellant.
    The habit among certain members of the bar, of taking appeals in capital criminal cases,, and not following them up, is to be deprecated,
    APPEAL from the Criminal District Court for the parish of Orleans.. Soman, J.
    J/'. J. Cunningham, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee.

      F. J>. Kavhuvt for Defendant and Appellant.
   The. opinion of the Court iva.s delivered by

Poems, J.

Tliis appeal, which is taken from a conviction of murder and a sentence of death, presents a record barren of any plea or proceeding which we are authorized to review under our limited jurisdiction in criminal matters.

A thorough examination of the record fails to disclose any plea in bar, motion to quash, bill of exception or motion in arrest of judgment, and it has satisfied us that the accused has had a fair and impartial trial, during which all the modes of proceeding, and other forms prescribed by law, have been observed with commendable regularity and precision.

Under such a showing, the defendant could surety expect no relief at our hands.

That circumstance was doubtless tlie reason which deterred his counsel from even filing a brief in his behalf.

We are constrained to note the growing habit among certain members of the bar, of taking appeals in important criminal cases, and of giving no further attention to the same.

The habit must be seriously deprecated.

Judgment affirmed.

Rehearing refused.


author: Todd, J.

text:
    No. 9326.
    The State of Louisiana vs. D. Bolds and A. Trevenia.
    Where an affidavit for a continuance in a criminal case meets all the requirements of the law, and is made at the same term the indictment is filed, the trial judge cannot refuse the coutiuuance for the reason that he does not believe the accused is swearing to the truth.
    There is no legal authority for traversing tlie averments contained in such affidavit.
    If the affidavit swears that the witness is material, it is not required he should swear to his competency.
    APPEAL from the Thirteenth District Court Parish of St. Landry. Hudspeth, J.
    Jf. J. Cunningham, Attorney General, for the State, Appellee:
    1. In a criminal prosecution, the defense cannot demand a severance as a matter of right. 12 Wharton Or. P. and P. 309. The ruling of the trial court upon an application for a severance cannot he reviewed by the Supreme Court. 8 Aim. 114.
    2. To entitle the defense to an attachment for an absent witness, service of the subpoena must be personal. 15 Ann. 525.
    3. A continuance applied for on account of the absence of a witness, will not be granted, when the affidavit fails to set forth that the absent witness is a competent witness, that accused cannot safely go to trial without him, that the witnoss is subject to the process of the court, or that liis evidence is material to the defense of the apj)Ucant. All of these are among the essential technical averments, the absence of any one of which vitiates such an affidavit.
    4. If a continuance is properly refused, on any one sufficient ground, a new trial will not be ordered because tlie trial judge assigns other untenable grounds for his rulings, nor because of any incorrect action which did not affect, cure or excuse (he defects of tlie affidavit, on account of which it was proper to refuse the continuance.

      Gie & Perranlt and Perrodin c6 Dnlloy for Defendant and Appellant.
   Tlie opinion of tlie Court was delivered by

Todd, J.

Tlie defendant, A. Trevauier, appeals from a seutence of twelve months’ imprisonment at hard labor for larceny.

The information was filed on the 26th of November, 1884. On the 6th of December, subpoenas were issued for witnesses in belialf of the defendant, which were returned into court on the 15th same month. Among these was one for Abram Richard, upon whom domiciliary service had been made. Tlie case was called for trial on the next day, the 16th, when it was discovered that Richard was absent, whereupon the defendant asked for an attachment for him, which was refused. Upon this refusal, he made immediate application for a continuance, which the trial judge allowed to be traversed and then overruled the motion. To both of which rulings tlie defendant, took bills of exception, and of which he now complains.

There is no authority whatever for traversing an affidavit for a continuance. The affidavit cannot be contradicted, and must, for the jmrposes of the motion, be taken as true. 30 Ann. 296.

The motion was overruled for the reasons assigned by the judge in substance, that he did not believe the affidavit and that the defendant did not swear to the competency of the witness.

Whilst there is a large discretion confided to the judge of the first instance, respecting motions of this kind, yet the principle is well settled that that discretion is not to be arbitrarily exercised, and that where there lias been no lack of diligence on the part of the accused and where his motion and affidavit is timely and conforms to all the requirements of the law, the judge cannot reject the application, because ho does not believe the affidavit, is true.

In this ease, the defendant swore that by the absent witness, who was a resident of St. Landry, but temporarily absent in New Orleans, be expected to prove that ho, defendant, was the owner of the animal charged to have been stolen, that it was purchased from the witness by a person named and subsequently sold to him ; that he knew of no one else by whom this fact could he. shown, and that the testimony could be had by the next term of the court. In short, there was a strict compliance with all the requirements of the law, respecting a motion of this kind. The defendant was not compelled to swear that the. witness was competent, it was sufficient that he, swore to his materiality. Wharton Or. Law, V. Ill secs. 3020, 3021; 1st Chit. Or. L. 493; Arehbold 1 Vol., 569 Notes; Whitley vs. State, 38 Ga. 50; Hyde vs. State, 16 Texas 448. That he was material and competent appears on the face of the affidavit. Wharton Or. Law, Yol.

It- must be. noted that this motion to continue was made at the same term of the court that the information was filed, and within a few days after the filing of the same; and that every possible diligence had been shown to procure the attendance of the witness. Under these circumstances we. have no hesitation in saying that the judge erred in his ruling, and that, by such ruling, the defendant was greatly prejudiced and deprived of rights that the law clearly accorded him.

It is, therefore, ordered, adjudged and decreed that the sentence appealed from be set aside and annulled, and the case remanded to be proceeded with according to law.


author: Manning, J. Ficnneu, J.

text:
    No. 9431.
    The State ex rel. Raymond Terence vs. H. L. Lazarus, Judge.
    Courts have inherent power to pnnisli for contempt and our Code of Practice has expressly conferred ifc, but a judge cannot assume or decide that a witness has sworn untruthfully and punish him for the perjury as a contempt.
    Refusing to answer a question that a witness is bound to answer is contumacy and is punishable as a contempt. Answering such question untruthfully is perjury, the punishment of which is remitted to the regular action of the criminal law.
    ^PPLICATION for Certiorari.

      Joseph 1‘. Jlornor and Brands W. Baker for the Relator.
    Respondent in propria persona.

   The opinion of the Court was delivered by

Manning, J.

Raymond Terence was a witness in a cause on trial before the respondent Judge, and was committed for contempt in this, “ that lie refused to testify truthfully to the questions propounded to him by counsel and by the court and this without leading him to accuse himself of a crime.” He was sentenced to imprisonment for thirty days and to pay a line of twenty-live dollars Ho has obtained from us a writ of certiorari under which the proceedings are now before ns for review.

That this writ may be used for the purpose for which it is now invoked was settled in the De Buys case, 32 Ann. 1256, which has since been adhered to and has now passed beyond dispute.

The judge bases his action on art. 136 of the Code of Practice wherein it is provided, if a witness refuse to answer any question put to him except such as might lead him to accuse himself of a crime, the court may line and imprison him.

It is not charged or pretended that this witness refused to answer any question of any kind. On the contrary it is expressly alleged that he did answer the questions put to him by the counsel and the court, but that ho did not answer them truthfully.

Refusing to answer a question that a witness is bound to answer is contumacy and is punishable as a contempt. Answering such question untruthfully is perjury, the punishment of which is remitted to the regular action of the criminal law through the established forms of criminal proceedings, i. e. by indictment or information followed by a trial. An act may be at once a contempt of court and a violation of the criminal law, for example an assault and battery committed in open court would be punishable as a contempt and also by prosecution.. The overt physical visible act distinguishes it from perjury.

The law gives to every judge the power to punish for contempt-. It is necessary for the orderly police of the court, but to decide that the-testimony of a witness is false and to inflict summary punishment upon him without atrial is repugnant to the orderly administration of justice and subversive of our ideas of right.

Where flagrant perjury has been committed, a nisi prius judge has not infrequently directed the attention of the prosecuting officer to the man and his offence and has even ordered his committal until the criminal machinery could be set' in motion for his trial. But the respondent' dispensed with any form of trial, determined the guilt of the offendeiwithout accuser or witness, and summarily punished him without an opportunity of defense.

It is therefore ordered and decreed that the order complained of by tlie relator is annulled and vacated.

Dissenting Opinion.

Ficnneu, J.

This case differs from that of Kane just decided only in the particular that, while the order sentences the present relator to-imprisonment for thirty days, it imposes upon him a flue of only twenty-five dollars.

For the reasons given in my dissenting opinion in that case, I think the order should be set aside in so far as the sentence of imprisonment is concerned.

But the fine is within the limits of the authority conferred by Art. 331 C. P., and if the action of the court is not invalid on other grounds, 1 see not why the order, to that extent, may not stand.

This raises the question whether the refusal of a witness “to answer-t-iuthfully” questions propounded to him, can constitute a punishable contempt of court.

Art. 131 0- P. confers upon judges of the district court “tlie power to punish all contempts of their authority by fine not exceeding fifty dollars and imprisonment not exceeding ten days.”

It is not our province, in a certiorari proceeding, to review the facts-of the particular case and pass upon the correctness of the judge’s decision. The facts are not before us and we have no concern with them.

If refusal of a witness to “ answer truthfully” questions propounded to him can, in any case, constitute a punishable contempt, we are bound to assume that the judge has correctly exercised the discretion. confided in liim, and not subject to our review, in deciding that .such a case was presented here.

T cannot say that such refusal to “answer truthfully” might not, under circumstances easily conceivable, constitute a contempt. The object of courts of justice is to elicit truth. The plain duty of witnesses, confirmed by the oath administered to them, is to answer truthfully. The judge has the right to command and require the witness so to answer, and while we do not say that every perjury is to be treated as a contempt of court, yet perjury may be so impudent, flagrant and persistent, as to insult the dignity- of the court, consume its time and embarrass its proceedings. Thus, suppose it were desired to elicit from the witness an answer as to some patent fact in order to make it appear on the record, and the witness should persist in making- evasive and false answers, evidently known to be such by himself and by the judge, and, in despite of warning- and command, should refuse to answer' truthfully, would the judge be required to tolerate such effrontery and such trifling- with liis time and dignity?

Other cases might he supposed, in infinite variety, equally obnoxious, equally insulting to the dignity of the court, and obstructive of the decent and orderly administration of justice.

A judge has the rig-lit to protect his court against such unseemly conduct and that right is properly vindicated by the process for contempt.

We think the case falls within the authority of White’s case, 32 Ann-1222.

1 regret, beyond measure, that this Court has gone so far as to withdraw from inferior courts the salutary and essential power of protecting themselves against such abuses as 1 have indicated above.

T concur in. that portion of the decree which annuls the imprisonment but dissent from that which releases the fine.


author: Poems, J. Tenner, J. R. B. Todd, J.

text:
    No. 9345.
    The State ex rel. Camille E. Girardey vs. O. B. Steele, Auditor, et al.
    • Sections 142, 143, and 146 of tlie Revised Statutes relative to auctioneers must "be construed together. Their true meaning is that the auditor cannot, in any case, forfeit or cancel an auctioneer's license, ■without the sanction or authorization of a judgment of a competent court previously rendered, and decreeing the forfeiture of such license. Under the provisions of those sections, the auditor has no authority to sit in judgment over auctioneers, touching their alleged delinquency for taxes or dues which they may owe. to the State.

      APPEAL from the Seventeenth District Court, Parish of East Baton . ’Rouge. Burgess, J.

      B. It. Borman and Albert Voorhies for the Relator and Appellant.
    (8. N. Garlisle and Miller <& Finney for Defendants and Appellees.
   The opinion of the Court was delivered by

Poems, J.

Relator seeks by mandamus to compel the auditor to cancel an order which purports to forfeit the former’s license as an auctioneer conformably to the provisions of Sections 143 and 146 of the Revised Statutes. The contention of respondent that the remedy by mandamus does not lie in such a case, finds no sanction in our laws.

The only ground on which the auditor’s order can be justified in law is, that it involves the performance of a ministerial duty. It follows that any error which he may commit in the performance of such a duty may be corrected through the same coercive power or remedy which could he invoked in order to compel him to the performance of such ministerial duty.

The main contention on the merits of the application involves the assumed power of the auditor to forfeit an auctioneer’s license under the provisions of Section 146, in the absence of a judgment of a competent court judicially establishing the fact that the auctioneer had, by his acts of omission or commission, made himself liable to the legal forfeiture of his license.

Sections 143 and J.46 read thus:

Section 143: “ No person shall act as auctioneer who is indebted to the State or any corporation for any tax as an auctioneer, or any license or commission which he has neglected to pay after fmal judgment against him therefor.”

Section 146: Any auctioneer who shall neglect to pay into the State treasury the duties required by lawr upon auction sales made by him, shall forfeit Ms license, and in case he refuses to return the same, the Auditor of Public Accounts shall give public notice in the official gazette, of the cause for which the license of the auctioneer is forfeited and that his license has been withdrawn from Mm.”

Relator’s argument is that the two sections must be construed together and the condition precedent for legal action under Sec. 143 must be understood to apply to the acts of the auditor authorized or contemplated under Section 146. His proposition is correet. A reference to Section 142 is necessary to the proper construction of Sec. 143. It reads as follows:

“ Every auctioneer shall taire out an annual license from the Auditor of Public Accounts authorizing him to do and perform all the business properly “belonging to an auctioneer.”

Keeping in view that provision, which requires an annual renewal of his license to qualify an auctioneer, it will be at once apparent that the object and purpose of Section 143, is to impose on auctioneers the obligation of exhibiting annually a clean record as a condition of their obtaining a renewed license. Hence it is provided that an auctioneer who is a delinquent to the State or any municipal corporation for any tax, or license, or commission, does not present a clean record, and that in such cases the auditor has no authority to renew his license, or in other words, that the auctioneer shall no more act ax such, but the auditor is not made the judge of the possible delinquency; his only guide is the existence of a judgment rendered against the auctioneer showing such delinquency'.

It is too plain for argument that the section must refer exclusively to auctioneers who ajjply for a renewal of their license;. Parties who have not previously been auctioneers could not be delinquent as such.

'That section contemplates and provides for all the dues for which the auctioneer may possibly he indebted to the State, and therefore includes the duty on public sales required under the provisions of Section 145. It has been held in several decisions of this court that, although the duty imposed by the latter section must be paid by the person who employs the auctioneer, the latter is responsible for its collection, and will be bold liable therefor even if he fails to collect tlu> .same from his employer. That liability is the tax referred to in Section 143. It can contemplate no other source of indebtedness on the part of the auctioneer, for the law makes him liable for no other tax as auctioneer.

But as the remedy of prohibiting auctioneers from renewing their licenses at the end of each year, might prove too dilatory to coerce them to account to the State treasurer for moneys collected by them on their sales the legislature provided the remedy in Section 146, under which a more efficient prohibition can be invoked against them, by-recalling their license at any time.

Tt is clear that this section treats at least of one of the subjects provided for in Section 143; and that is the duty ou auction sales which is spoken of as a tax in the last mentioned section. Section 146 is simply cumulative, and provides an additional remedy to the general prohibition contained in the previous section. The two sections should therefore- be. construed together. Both provisions are taken from Act 104 of 1855.

The question therefore suggests itself, if the auditor cannot justify his refusal to issue a license to an auctioneer for grounds of delinquency, without the sanction or authority of a. judgment, did or could the law making power contemplate to grant him the greater power, that is, the authority to cancel and recall a license already granted under legal authority, without the sanction of a judgment?

Could he he made the judge of the condition of things in one section, and notin the other? Reason and law both join in a negative answer.

A careful analysis of Section 146 shows that the law therein docs not vest tile auditor with the power to declare the forfeiture. His duty is to " publish the fact of the forfeiture and the reasons therefor. We hold that the forfeiture can emanate from the judiciary alone.

in his published order the auditor states that a judgment had been rendered against the relator, but this is conceded to be an error; and it is admitted that his action was not based or predicated on a judgment previously rendered, his contention being that such a judgment is not required or necessary, because not enacted under the terms of the section.

Tlie conclusion appears irresistible that his course cannot he sustained, and that the relator is consequently entitled to his relief under the application for mandamus. Under these, views of the case, we pretermit a discussion of the other points raised by relator.

The judgment herein appealed from is therefore reversed; and it is now ordered and decreed that the act of O. B. Steele, auditor, purporting to declare the forfeiture of C. E. Girardoy’s license as auctioneer, he annulled .and set aside, and that a peremptory mandamus issue directed to said auditor, ordering him to give due publication in the State Gazette of the revocation of his order aforesaid, and that relator recover his costs in both courts.

Separate Opinion.

Tenner, J.

I am compelled to differ from my brethren in the solution of the question on which the decree reversing the judgment appealed from is based.

Section 143 of the Revised Statutes lays down a general rule applicable to all taxes, licenses and commissions, of whatever character, duo by auctioneers, whether to the State or any municipal corporation, declaring that no auctioneer shall act as such who fails to pay any of such dues after final judgment.

Then follows Section 145, prescribing a particular duty upon sales to be paid to the State.

This is followed by Art. 146, an independent provision applicable to this duty alone just prescribed, and declaring that the mere neglect to pay snch duty shall, of itself, operate the forfeiture of license, and requiring the auditor to proceed as therein directed. I can discover no warrant to insert in this separate and independent section, the condition of prior judgment which the legislature has omitted therefrom. Taken in connection with the elaborate provisions made in the succeeding sections for the rendition of quarterly accounts of sales and duties, verified on oath, and for the payment of such duties within limited delays carefully expressed, there seems an entire lack of necessity for any judgment; because the debt should appear from the account of the auctioneer himself.

I find that, in the revenue act of 1850, the provision of ("Section .146 appeared unaccompanied by that of Section 143.

1 merely express my opinion upon this question of statutory construction, without finding it necessary to consider other questions raised in the case, and whether a proper solution of them might or not sustain the decree.

I concur in this opinion.

R. B. Todd, J.


text:
    No. 9398.
    Denis J. Campbell, Administrator et al. vs. Joseph B. Woolfolk et als.
    When a suit is "brought gin the district court to annul a decree of partition rendered by a parish court, and to enjoin a sale ordered, thereby, and when the district court not only dismisses the suit on exceptions, but, at the prayer of defendant, renders an. affirmative decree ordering the sale to proceed pursuant to the decree of the parish court, and suoh judgment is, on appeal, affirmed in this Court, it has the effect of res judicata, between the parties and their p rivies, as to the validity of the judicial power ordering the sale.
    One who has intervened in a judicial proceeding and claimed to regulate the distribution of the proceeds of a sale ordered therein, cannot afterwards attack the sale itself for nullity.
    The titles of defendants resting ux>ou adjudications under a judicial partition sale, the validity and judicial character of which cannot now he questioned, they hold the property disincumbered of judicial mortgages attaching to the interests of individual owners in indivisión, and said mortgages were transferred to the proceeds of sale.

      A PPEAL from the Seventeenth District Court Parish of East /~\ Baton Rouge. Sherburne, J.

      Daniel N. Barrow and J. 0. Nixon, Jr., for Plaintiffs and Appellants.

      Samuel Matthews and Merrick, Foster & Merrick for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiffs are the administrator and heirs of Zenon and Elise Laban ve, in which capacities they hold certain judgments recovered before the war against Mrs. Emily Woolfolk, the widow, and Joseph B. Woolfolk, one of-the heirs of Austin Woolfolk, and which were recorded as judicial mortgages against the interests of said judgment debtors in the succession of Austin Woolfolk, consisting of valuable immovable property.

They bring this hypothecary action against defendants, as third possessors of said property, in order to subject the same to their judicial mortgages.

The defendants are owners under a title derived from adjudications made at a' public judicial sale in execution of a decree of partition rendered by the late parish court of Iberville parish, in a suit for the partition of the estate of Austin Woolfolk, between his widow and heirs, entitled Sarah and Austin Woolfolk et al. vs. Emily Woolfolk.

It is clear enough that, if the judicial partition and sale above referred to, were regular and valid, the property passed to defendants disincumbered from the judicial mortgages which were transferred to tlie proceeds, or to the shares falling to the debtor co-parceners. 12 Rob. 450; 9 Ann. 212; .12 Ann. 236; 35 Ann. 527.

Plaintiffs, however, contend that, as a judicial partition, the proceeding was an absolute nullity by reason of the want of jurisdiction ratione materia of the parish court.

To this contention, defendants oppose pleas of res judicata and estoppel. Ties judicata is based upon tlie decision of this Court in the case of Elise Labauvc vs. Mrs. Emily Woolfolk et al. reported in 26th. Ann. 440.

That was a suit brought in the district court by Mrs. Elise Labauve, tlie ancestress of plaintiffs, as bolder of the very judgments herein presented, to enjoin the sale under the decree of partition of the parish court, and to have declared the nullity of said decree upon the very ground, among others, of the want of jurisdiction of said court. The defendants in that case opposed various exceptions and filed a prayer in the nature of a recon ventura, for a specific decree, not only dismissing-the demand, but affirmatively ordering “the auctioneer to proceed to sell the property enjoined by these proceedings as ordered by the parish court in suit No. 113.”

After due trial, judgment was rendered by the district court maintaining the exceptions, dismissing the suit, and further decreeing “ that James L. Barker, auctioneer, proceed to sell the property enjoined by this suit, pursuant to the decree of partition rendered by the parish court for Iberville parish, on the 10th day of September, 1869, in suit No. 113 of the parish court docket, and pursuant to the commission to him addressed and in his hands.”

Considering the nature of the exceptions, had the judgment contented itself with maintaining them and dismissing the suit, the claim of res judicata as to the validity of the decree and sale might have had little force; but unless we are to treat the concluding portion of the decree as mere surplusage, which is impossible, we are bound to regard it as a distinct recognition of the authority of the parish court to order the sale and as adding thereto the affirmative direction and authority of the district court itself. However erroneous the decree, it was within the jurisdiction of the court, and purchasers at the sale so ordeied had the right to regard themselves as purchasers at a judicial sale recognized and directed as such, not only by the parish, but by the district court, and, as we shall see, subsequently by this Court.

On appeal to this Court, the judgment was affirmed without qualification, the effect ot which was to make the judgment as much that of this tribunal, “as if it had been copied into the formal decree affirming that of the court below.” Plicquett vs. Plicquett, 19 La. 325; Frescott vs. Lewis, 12 Ann. 197.

Although the opinion of this Court (26 Ann. 440) confines itself to the discussion of the exceptions, our attention is called to a very vigorous application for a rehearing, in which the counsel for Mrs. Labauve exhibited a very clear appreciation of the effect of the decree as rendered and earnestly pressed the Court to make such modification thereof as would prevent her from being concluded as to validity of the judicial sale ordered by the parish court. But the rehearing was refused.

But Mrs. Labauve displayed a yet more conclusive acceptance of this effect of the decree, in her subsequent proceedings which create an estoppel against plaintiffs as fatal to their present action as the res judicata itself, Immediately after the decree of this Court had become final, she herself intervened in the partition suit, by way of third opposition, setting up her rights as judicial mortgage creditor, claiming to regulate the distribution of the proceeds of sale and to have the amounts coining to her debtor applied to the payment of her judgments.

This opposition remained pending until some time after the sale and the adjudications upon which rest the title of the present defendants.

The authorities are uniform and numerous, holding that one cannot judicially claim the proceeds of a judicial sale and afterwards attack the sale for nullity. Factors’ Ins. Co. vs. DeBlanc, 31 Ann. 103; Dowberry vs. Gally, 30 Ann. 330; Bonbede vs. Aymes, 29 Ann. 274; Markham vs. O’Connor, 23 Ann. 688; 22 Ann. 135; 3 Ann. 454; 31 Ann. 719; 26 Ann. 711.

Wo fail to see how the voluntary discontinuance by Mrs. Labauve of her said intervention after the sale, can defeat the rights of the purchasers, which are governed by the conditions existing at the date of the sale, and cannot be affected by subsequent shifting of position by parties.

We are satisfied the pleas of res judieata and estoppel resting on the above grounds, are conclusive against the present action of plaintiffs . who are the heirs and ay ants cause of Mrs. Labauve.

We have considered the case of Woolfolk vs. Woolfolk, decided by this Court and reported in 30 Ann. 139, in which the court, in its original opinion, held that the parish court was without jurisdiction to render the very partition decree involved herein; but in the final decree on rehearing, the judgment to that effect first -rendered by the court, was revoked and set aside, and a simple decree of non-suit was substituted. Of course, this robs the case of all effect, as res judicata. Nevertheless we do not even intimate that the conclusion reached on the question of law, was erroneous. Wo do not now decide that the parish court had jurisdiction, we only say that plaintiffs are precluded from setting up such want of jurisdiction by the effect of the thing adjudged.

The res judieata now upheld by us does not seem to have been raised or considered by the court in the 30th Annual case. Had it been, no doubt it would have been upheld then as now; just as, in its absence, we should have probably reached the same conclusion on the question of jurisdiction as was then announced by the court. At all events, the decree as finally announced, was one of non suit and plays no part in this case.

Judgment affirmed.

Rehearing- refused,