author: Wyly, J. Howell, J., Lddelxng, C. J., Taliaferro, J.

text:
    No. 284.
    J. F. C. Taylor v. David Pipes and J. F. C. Taylor v. David Pipes. (Consolidated.)
    -A third person who has,purchased property which is incumbered by a mortgage which does not contain the paot tie non alienando while proceedings are pending by the mortgagee to enforce it, and is in possession under a titlo translative of property, can only be evicted by the mortgage creditor by an hypothecary action. C. P., art. 69.
    ¿Property thus situated can not be seized undor proceedings to enforce the mortgage until it ■has been declared subjoot to the mortgage b v an hypothecary action; and if it has been seized an injunction will legally issue to protect tlio third possessor in the enjoyment of his property.
    from the Fourteenth Judicial District Court, parish of Morehouse. Bay, J.

      Todcl <£ Brigham, for plaintiff and appellee. D. O. Morgan, for defendant and appellant.
   Wyly, J.

A motion is made to dismiss this appeal:

First — Because the amount of the bond is not sufficient for a suspensive appeal.

Second — Because only one of the defendants in solido has appealed.

Third — Bt cause tile clerk’s certificate to the transcript is not sufficient.

The bond, being for the amount fixed by the judge, is good for a ¡devolutive appeal, if it is not sufficient for a suspensive appeal.

As the appeal was taken by motion in open court and the bond given in favor of the clerk, all the necessary parties are before the court.

The certificate of the clerk we consider sufficient; besides, if insufficient, it is no ground'to dismiss the appeal, the fault being attributable ¡to the clerk.

The motion to dismiss is therefore denied.

On the Merits.

The plaintiff Taylor, the third possessor of the mortgaged property, -enjoins the enforcement of the mortgage against it, on the ground that the defendant has not brought an hypothecary action against him conformably to articles 68 and 69 C. P., tbe mortgage not containingtbe pact de non alienando; and also because execution issued improperly against Tait, the mortgager, in this, there was no notice of judgment-served upon-him, the judgment being rendered by default.

The defendant contends that as Taylor acquired the property after his suit had been instituted to forclose the mortgage, he is charged with notice of the proceeding, is not a third person in the sense of the law, and need not be proceeded against conformably (o articles 68 and 69 C. P.

This raises the question whether a third person who acquires mortgaged pioperty alter suit or judgment against the original owner, can be deprived of it without an hypothecary action being brought against him conformably to the rule stated in articles 68 and 69 C. P. It is elementary that no one should be condemed or deprived of a legal right without a hearing.

If a third person has the right to buy mortgaged property pending the suit to foreclose the mortgage, his right can not be divested without some proceeding contradictorily with him, and the lafiv has provided the hind of proceeding in express terms in articles-68 and 69 C. P.

The law has not prohibited the transfer of mortgaged property,, pending the action to foreclose the mortgage. It is only where the ownership of the thing is involved that its alienation is prohibited pending the petitory action.

The sale of a thing belonging to another is null.” * * * Revised Code 2452. •

The thing claimed as the property of the claimant can not be alienated pending the action, so as to prejudice his right. If judgment be rendered for him, the sale is considered as the sale of another's property,. and does not prevent him from being put in possession by virtue of such judgment.” Revised Code 2453.

In the suit against Tait neither the ownership nor the possession of' the property was involved; Pipes simply sought to foreclose his mortgage. The sale to Taylor pending the action was not the sale of another’s property by his vendor. It mattered not how the suit resulted, Pipes could not be put in possession. He-had only succeeded in getting judgment against Tait and having his mortgage rendered executory. In Barelli-v. Delassus, 16 An. 283, the question was whether the owner of the mortgaged property could alienate it pending the suit to foreclose the mortgage, and the articles 'of the Civil Code quoted were examined on that point; and it was held that: “ The sum and substance of article 2428 (2453) are that the owner of property, who has sued in revendication, is entitled, upon rendition of judgment in his favor, to be put in possession by virtue of such judgment, even, if the defendant has alienated the property during the pendency of the action. But a party who institutes the hypothecary action can not interfere with the right of the defendant, as owner, to alienate the property during the pendency of the suit, for two reasons: first, because, in the words of the article, this is not the sale of another’s properly; and secondly, because the plaintiff, however successful, is not entitled to the possession of the property.”

In Maskell v. Merriman, 9 R. 69, the precise question now in controversy was decided, to wit: whether the purchaser of mortgaged property, after suit or judgment against the original mortgager,' is-entitled to the rights of a third possessor and can only be proceeded against conformably to the rule stated in articles 68 and 69 C. P. It was there held that: “ A purchaser ol property subject to a mortgage, in possession, is entitled to the rights and privileges of a third possessor, though a judgment had been obtained by the mortgagee against the mortgager, but no execution had ■issued before the purchaser tools possession under the sale j it is only when the mortgage contains the pact de non alienando that the third possessor is not entitled to notice.'”

It is not pretended that Taylor took possession alter ■ execution had issued against T<tit, the mortgager, contradictorily with whom the judgment foreclosing the mortgage was rendered.

Taylor acquired the title and the possession in August, 1866, as appears by the evidence, and the judgment under which the defendant Pipes proceeds was not signed till December, 1868. Taylor was, to all intents and purposes, a third possessor when his property was seized.

In Williams v. Morancy, 3 An. 227, it was held that: “ Where mortgaged property is in possession of the mortgager, one expressly subrogated to the rights of the mortgagee may proceed against it via exeeutiva. But where an act of mortgage contains no clause de nonalienando, and the property is sold by the mortgager to a third person, neither the mortgagee nor any one subrogated to his rights can proceed a -;ainst it by order of seizure and sale. The creditor must resort to an hypothecary action.”

In Brown v. Routh, 4 An. 270, .it was held that: ‘‘Where an act of mortgage does not contain the pact de non alienando, and the property is in possession of a third person, no judgment can be rendered for its-seizure and sale in an action against the mortgager alone.”

The same was also decided in Waddill v. Payne & Harrison, 22 An. 134.

These decisions but apply the textual provisions of the law.

Article 62 of the Code of Practice declares that: “ The hypothecary action, like all real actions, follows the property to which it is attached,, in whatever hands it may be found, but it is subject to different rules,, according as the property may be in possession of the debtor, of his .heirs,, or of third persons.”

The rule, where the hypothecated property is in the hands of a third person, is stated in articles 68 and 69 C. P. It is the only rule applicable to the enforcement of a mortgage on property in the hands of a third possessor, where there is not the non-alienation clause.

“ If the hypothecated property be neither in the possession of the •debtor nor of his heirs, but in that of a third person, the creditor has his action against that person in order to compel him to give up the property, or pay the amount for which it stands hypothecated. This is the hypothecary action properly speaking.” C. P. 68.

“If thirty days after amicable demand, made from the debtor or his 'heirs, of the payment of an hypothecary debt, it has not been fully discharged, the creditor may bring his action against the third possessor of the property hypothecated to him, to have it seized and sold, if that third possessor have not within the ten days after having been notified •of such a demand paid the amount of the hypothecary debt, including -the interest and costs.” C. P. 69.

The plaintiff in this suit, being a third possessor, was entitled to ten days notice of the legal demand made on the mortgager, before •the defendant could bring an action against him to subject his property to the hypothecary claim. This is the plain requirement of article 69 C. P.

No notice of the kind was served upon the plaintiff. The defendant ■simply confirmed a judgment by default against Tait, the mortgager, and had the mortgage rendered executory. And he was attempting, when arrested by this injunction, to alienate the property of the plaintiff by carrying on a sale thereof contradictorily with Tait, who had neither the title nor possession of the property seized.

The plaintiff, a third possessor, found his property about to be sold in a proceeding to which he was not a party, and he caused it to be arrested by this injunction.

A sale'made contradictorily with a party who has neither the possession nor ownership of the property seized would seem to be an utter nullity.

But the defendant contends that the rule laid down in articles 68 and 69 C. P. ought not to apply to a purchaser after suit against the mortgager, because it would create endless delay in enforcing mortgages .and would enable third possessors, by successive transfers, practically to defeat the law.

We do not see the force of this objection.

If the third possessor, proceeded against under articles 68 and 69 C. P., does not give up the property, he is condemned in the judgment to pay the debt. And so judgment may be had against every subsequent purchaser against whom the hypothecary action may be brought.

The party whose pursuit is sought to be evaded may thus get judgment against every one endeavoring to defeat him.

The judgment under which this seizure was made was a default ■confirmed against Tait, the mortgager. No notice of judgment was given to him. It is well settled that before an execution can issue where a default has been confirmed, notice of judgment must be ■served upon the defendant. This is the rule in all cases where the judgment is appealable. C. P. 624; 6 R. 18; 3 L. 237; 21 An. 464.

The defendant, wholly disregarding the rights of the plaintiff, issued prematurely execution on the judgment against Tait, the mortgager, and seized the land owned by the plaintiff. •

. The plaintiff had the right to resist the sale on the same ground that Tait, the author of his title, could. Were he merely a mortgage creditor, instead of the third possessor, he could plead the prematurity of the writ.

For the reasons stated we think the district judge did not err in perpetuating the injunction and recognizing the plaintiff as the owner of the land. This disposes of the first case. The second of these consolidated cases is in relation to the rent of the property during the seizure.

We think the court did not err in concluding that the plaintiff is •entitled to the rent.

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

Howell, J.,

concurring. I concur in the reasoning of Mr. Justice Wyly, except on the question of notice of judgment to Tait, upon, which I think it unnecessary to express an opinion in these cases. I concur in the conclusion.

Lddelxng, C. J.,

dissenting. The record exhibits the following facts:

In November, 1856, the defendant Pipes sold to Tait & Cleveland a tract of land in the parish of Morehouse, and retained the vendor’s privilege and a special mortgage thereon to secure the payment of the price. The act of mortgage does not contain the pact de non alienando. On the twenty-sixth of July, 1858, Tait & Cleveland made a partition between themselves of this tract of land. In March, 1864, Tait sold his portion of the land to B. W. and D. M. Burnham, who assumed to pay the mortgage debt due to Pipes as a part of the price of the sale to them. They sold to Haddick, who also assumed the payment of the mortgage debt due to Pipes; and Haddick sold to Taylor, the plaintiff in this suit, who expressly declares in the act of sale that he buys the land subject to the mortgage of Pipes, and without warranty, except against the claims of the vendor and his heirs.

Pipes sued out executory process to sell the land mortgaged to him, and afterwards changed the executory to the ordinary proceeding to foreclose his mortgage. The records of this suit having been destroyed by fire, the facts in relation to that suit are not as accurately shown by this transcript as might have otherwise been proper. It does not appear from the record when this suit to foreclose the mortgage was originally filed. It is stated by the defendant to have been filed .in March, 1866, and this is not expressly denied by the plaintiff.

It appears that Tait, individually and as administrator of Cleveland, (who had died) and W. A. Haddick, who had purchased from Burnham as aforesaid, and who was in possession of the property, were cited to defend the suit. And subsequently Pipes filed a supplemental petition,, in which it is alleged that since the institution of the proceedings against Tait, individually and as administrator of the estate of Cleveland and W. A. Haddick and during the pendency of said suit, Haddick had sold the property to J. C. F. Taylor, and he asked that copies of the original and amended petitions in the suit against Tait and. Haddick, together with the supplemental petition, might be served upon Taylor, and for judgment commanding him to pay the debt or to give up the land to be sold under the mortgage. It appears that a. judgment by default in this suit was subsequently made final'in favor of the plaintiff Pipes against Tait individually and as administrator of the estate of Cleveland for the amount of his claim, and making the mortgage executory and ordering the property described in the -mortT gage to be sold to satisfy the debt. It does not appear whether there was any other action in this case as to either Haddick or Taylor. This judgment was announced on seventeenth June, 1867, but was not signed until tenth December, 1868. In September, 1869, execution was issued under this judgment, the mortgaged property was seized and advertised for sale, and the plaintiff in the present suit (Taylor) enjoined the writ on the following grounds: That the judgment under which the seizure was made was against W. C. Tait individually and as administrator; that there was no judgment against him (Taylor), and as to him the suit was still pending. That the act of mortgage did not contain the pact de non alienando, and the land could not be seized in petitioner’s possession under a judgment against the original mortgager. That the proceedings against himself and Tait had not been preceded by the demand and notices required by law before an hypothecary action could be instituted. That no notice of judgment had been served on the judgment debtor before the issuing of execution. That the mortgage was extinguished by virtue of a probate sale made of a portion of the land embraced in the mortgage. And, finally, it was urged that the claims upon which the judgment is based were prescribed.

The plaintiff also enjoined the sheriff from leasing the land seized, on the grounds above stated, and subsequently filed an amended petition claiming the amount of rents already collected by the sheriff. • These suits were consolidated and tried together. There was judgment in favor of the plaintiff perpetuating the injunctions and condemning the sheriff and Pipes in solido to pay $1760, the amount of rents collected and costs, and the defendant Pipes has appealed.

The principal question for decision in this cause is whether Taylor, who purchased during the pendency of the suit to foreclose the mortgage against his vendor, is entitled to the notice required by law in the hypothecary action proper ?

It has already been stated that Haddick, who was in possession when these proceedings were commenced, had assumed the payment of the mortgage debt; and he and the original debtors were sued in solido. During the pendency of tins suit, to wit, on the seventeenth August, lfc66, Taylor acquired the property in question, subject to the mortgage and without warranty, for $3000 — a sum much less than the real value of the property, as shown by the evidence.

It is clear that, as to Haddick, the demand and notice prescribed by article 69 of the Code of Practice were not necessary, as he had assumed the debt and was personally bound for it. C. C., art. 3403; 15 La. 184, Woodward v. Dashiel ; 6 R. 407, Twichel v. Andry ; 1 R. 135, Duncan v. Elam.

Could Haddick practically defeat the object of that suit by transferring the mortgage property to another, pending the action to enforce it? I think not. It is contended that there is no proof that Taylor knew of the pendency of the suit. Perhaps there is no direct evidence of this fact; but the facts established satisfy us that Taylor had actual knowledge of the pendency of the suit; but whether he had or not, “it is a- rule of universal jurisprudence and one which has been expressly recognized in our Code, that every man is presumed to be attentive to what passe-; in the courts of justice of the State where he resides or has transactions. A purchaser, therefore, of an estate actually in litigation, pendente lite, even for a valuable consideration, and without any express or implied notice in fact, affects the purchaser in the same manner as if he had such notice, and he will accordingly be bound by the decree in the suit. The rule may sometimes operate harshly, butit is founded upon grave considerations of public policy, and must therefore be respected and enforced. 3 An. 252, Gillispie v. Cammack ; Story’s Equity, vol. 1, p. 394 ; C. C. 2428 ; 13 La. 257 ; 4 La. 557, Cable v. Davenport ; 1 John. Ch. R. 576. In 11 Vesey, Jr., 394, Sir William Grant said : “ Ordinarily, it is true, the decree of the court binds only the parties to the suit. But he who purchases during the pendency of the suit is bound by the decree that may be made against the person from whom he derives title ; the litigating parties are exempted from the necessity of talcing any notice of a title so acquired. As to them it is as if no such title existed. Otherwise suits would be indeterminable, or, which would be the same in effect, it would be in the pleasure-of one party at what period the suit would be determined. The rule may sometimes operate with hardship upon those who purchase without actual notice, yet general convenience requires its adoption.” In the-case of Cable v. Davenport, 4 La. 558 (Judge Martin being the organ of the court), it was held that where mortgaged property is sold and-transferred by the third possessor, on the day of the service of the-citation, at the suit of the mortgagee to enforce the mortgage against said third possessor, such transfer and disposition will not affect the-rights of the mortgagee.

The plaintiff’s counsel have referred to Maskell v. Merrimaa, 9 R. 70 ; Williams v. Morancy, 3 An. 228 ; Brown v. Routh, 4 An. 270 ; Waddill v. Payne & Harrison, 22 An. 135, and Barrelli v. Delassus, 16 An. 283, in support of a contrary doctrine, that is, to support the position that one who buys during the pendency of a suit is not affeeted by that suit, but must be proceeded against de novo by the hypothecary action proper. I do not think the authorities cited in point. In Maskell v. Merriman, at the time of the sale a judgment had some time previously been obtained on the mortgage note. In Williams v. Morancy, Williams and McMurtry executed a mortgage in favor of Morancy. Upon this mortgage Morancy obtained an order of seizure and sale, but desisted from executing it at the instance of Williams, who paid the greater part of the debt. Mrs. Chaille purchased the mortgaged property and assumed to pay the debt to Morancy. After her death her administrator paid the balanceremaining due by draft upon Britton & Co., of which firm Koonls was a member, and at the request of the administrator Morancy transferred the note to Koonts, and subrogate-l the latter, as is alleged, to the rights under the judgment in executory proceeding. The attorney of- Koonts then had an execution on the order of seizure and sale obtained by Morancy, and in the name of Morancy for the whole debt, and Williams, the original debtor, enjoined .the sale.

' It is manifest that in these two cases there was no suit pending in relation to the property mortgaged at the date of the sale. In the case of Maskell v. Merriman, chiefly relied upon, the court said ; In point of fact the mortgage had already been transferred to H. R. Lee & Co., and they had recovered judgment upon it against Kemper, the vendor, and other parties to it; but the record does not show that Merriman had any notice or knowledge that such a judgment had been rendered. v * The question then is whether Merriman was entitled to the rights and privileges of a third possessor, to the notice required by the Code to third possessors in ordinary cases, or whether the mere fact that a judgment had been rendered against the mortgager,. although no execution was issued until the fifteenth of November, 1842, more than ten months after the defendant took possession, can deprive him of such privilege.” It is manifest that the essential difference-between that case and the one at bar is that in the Merriman case he-did not buy pendente lite, while in this case Taylor did. In the former case the sale did not in any manner interfere with the rights of the-plaintiffs, whereas in the present case the effect of the sale to Taylor ■ would be to defeat the suit, and that notwithstanding it was regularly commenced and conducted. In ihe cases of Brown and Harrison and Waddill v. Payne & Harrison, the court simply announced the general rule that mortgaged property can not be seized in the hands of a third possessor, unless the mortgage contain the pact de non alieiiando, without first giving him the notice required by article 69 of the Code of' Practice. The question to be decided here was not made or passed* upon in those eases.

In the case of Barrelli v. Delassus, the latter attempted to enforce a judgment obtained against J. A. Pellerin, in a suit for a settlement of partnership between them, by seizing property in the possession of Barrelli. This property, consisting of real estate, had been purchased in Pellerin’s name, but by a verbal agreement it was to enure to the-benefit of Delassus also. A verbal partnership existed between Pellerin and Delassus, and by a verbal agreement the property was to remain in Pelleriu’s name, and he was to'allow Delassus the sum. disbursed for the purchase, and render an account of the partnership.

During the pendency of the suit for a settlement of the partnership Pellerin executed a mortgage on the property in favor of Barrelli, who ■ foreclosed the mortgage and bought the property. Delassus obtained judgment against Pellerin with privilege upon the property bought by' Pellerin, and subsequently purchased by Barrelli, and under that judgment he seized the property in Barrelli’s hands. There was judgment recognizing this seizure, but subsequently, on rehearing, the court said : “ Upon a careful review of article 2428 of the Civil Code we have • come to the conclusion that tue doctrine of our former opinion is too* broadly laid down.”

It is evident that the facts in that case could not have presented the •question raised in the ease at bar. And to my mind it is equally evident that the question to be decided in this case is not decided in any of-the cases cited in support of the position assumed by the plaintiff. If Taylor be entitled to the notice as a third possessor, his ■ vendee, in case he should sell pendente lite-, would also be entitled to-the same notice, and the plaintiff would discover that he had a legal right without a practical or real remedy; which is an absurdity.

I do not believe that our laws relative to mortgages are so defective..

“ The thing claimed as the property of the claimant can not be alienated pending the action so as to prejudice his right.” C. C. 2463.

The principle here announced has heretofore been applied, by-analogy, at least, to'one seeking to enforce his mortgage, rights, by this court, and I see no good reason fox overruling the decisions, but, on the contrary, I think the principle consonant with equity, reason and universal jurisprudence. 4 La. 557; 13 La. 257; 3 An. 252; 11 Vesey, Jr., 194.

Taylor ought not therefore to be treated as a third possessor.

But it is said 1hat the right of the mortgagee is not affected or jmpaired by requiring him to pursue anew each successive purchaser of the property during the pendency of the suit, because the mortgagee would get a personal judgment against each one of them if thej' failed to deliver up the property. I do not agree in this opinion. No personal judgment against a third possessor is authorized by law. The privilege is accorded to him to pay the debt, if he prefer to do so, rather than to deliver up the property. But were it otherwise the mortgagee’s real right, the right to sell the property mortgaged to satisfy his debt, would still be practically destroyed.

This suit was commenced in March, 1866. On the sixth of August, 1867, a supplemental petition was filed in the suit, which was served upon Taylor with citation, and which substantially notified him of the judicial proceedings and demands against the mortgaged debtors, and judgment was prayed for recognizing the mortgage and privilege and for the sale of the land, unless Taylor should pay the debt due.

Long after the service of this supplemental petition a judgment was rendered in the suit against the original debtors for the debt, and recognizing the mortgage and vendor’s privilege and ordering the property to be sold to satisfy the mortgage debt. The destruction by fire of the records and the manner in which this ease has been presented to us does not enable us to' say with certainty whether the case as to Taylor is still pending or not, but we can conceive of no reason why it sh'ould be pending, or how the judge a qiio could have ordered the sale of the property in the hands of Taylor unless he had passed upon the whole case. And no appeal seems to have been taken from said judgment.

Whether notice of judgment to the original debtors was served or not does not concern Taylor; it is a defense personal to the debtors,which they have not seen fit to urge. As to the position that the mortgage is extinguished because a part of the property (that received in the partition by Cleveland) was sold at probate sale, it is sufficient to say that in the case of Cleveland v. Pipes, where this question is made, we have held that there was no probate sale.

The plaintiff’s counsel urge in their brief that the mortgage has no existence as to them, because there is no proof in the record that it was ever recorded in Morehouse, and they urge that the judge a quo erred in permitting a copy of the act of mortgage with the certificate of recordation in the parish of Morehouse to he filed after the case had been tried. From the bill of exceptions it appears that the attorney for defendant, representing that he had been under the impression that the copy of the act of mortgage offered in evidence by the plaintiff’s counsel had the certificate of recordation in the parish of Morehouse, and that he was taken by surprise, the judge permitted him to offer it in evidence. The case was tried by the judge; it is evident he had a right to grant a new trial to receive the evidence, and it is equally evident that the plaintiff’s attorneys were not taken by'surprise by the evidence, and that no injury or injustice could be done by receiving the act. Under these circumstances it would be carrying technicalities too far to reject the evidence. But applying a less technical rule to the plaintiff, there would be no necessity for the evidence ; he has not alleged in his petition for injunction that the mortgage was not registered; it does not form one of the grounds for injunction sworn to, and therefore he can not urge it here.

There remains only one other question for decision, whether or not the claims secured by the mortgage were prescribed when the judgment was rendered against Tait, or before 9 Article 3466 of the Civil Code declares, that “ creditors and all .other persons who may have an interest in the acquiring of an estate, or the extinguishment of an obligation by prescription, shall have a right to plead it, even in case the person claiming such estate or bound by such obligation should renounce such right of prescription.” On their face the notes are prescribed, unless there has been an interruption of the course of prescription.

On the trial the defendant offered an act under 2>rivate signature to prove an interruption of i>rescription, which was objected to on the •ground that the date of the act was not proven and, as to plaintiff, it had no date. The objection was overruled and the evidence was received. We think the ruling was erroneous. Where the real date of an act sous seing privé is not proved aliunde, it will date ^.s to third persons only from the day of its production in court. 11 An. 275; 11 R. 56; 7 R. 53.

In a private act, whereby the land bought from Pipes was partitioned between the vendees (Tait and Cleveland), they acknowledge the debt of Pipes, and Tait obligates himself to Cleveland to pay a greater proportion of the debt in consideration of receiving the more valuable portion of the pro2>erty divided. This act bears date twenty-sixth of July, 1858, but was only recorded on the fifteenth of December, 1859. .The latter is the date of the act as to third persons. On the second day of March, 1864, Tait sold the land to B. W. and D. M. Burnham, by act under private signature, which was recorded in the recorder’» office on the sixth of March, 1864. In that act the debt to Pipes i» acknowledged and the purchasers assume to pay it as part of the price of their purchase. Suit was instituted on these notes in March, 1866, and judgment was pronounced in 1867, but signed in 1868, nwnc pro tune.

It is clear, therefore, that the evidence in the record (without document K, which should have been excluded) shows that before prescription had accrued its course was interrupted by the repeated acknowledgments of.the debt by the debtors.

I dissent therefore from the views oí a majority of my associates in this case.

Taliaferro, J.

I concur in the dissenting opinion of the Chief Justice.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 342.
    J. S. Copes v. Phelps & Co.
    Commission merchants in the city of !New Orleans who receive cotton as agents and fail to-obey or follow the instructions of the shipper incur a liability to the owner for its value.
    from the Tenth Judicial District Court, parish of Caddo. Henry Q. Hall, attorney at law, Judge ad hoe, vice Levisee, J., recused.

      Williamson and Levisee, for plaintiff and appellee. Hutt & Leona/rd, for defendants and appellants.
   Taliaferro, J.

The defendants, who keep at Shreveport a warehouse for the reception of merchandise'for storage and ■ shipment,, received in their business character as warehousemen ten bales of cotton, forwarded to them from Nacogdoches, Texas, by one Hosea, who, by letter, instructed them that he had ordered a lot of twenty-four bales to be sent to them for shipment to the plaintiff in New« Orleans, and directed them if the entire lot of cotton should not be received together, to wait until the whole was received and ship it all together. This letter bears date March 18, 1866. Under date of April 14, same year, Phelps & Co. received a letter from Voight & Co., of Nacogdoches, informing them that Voight & Co. had forwarded to them for account of C. E. Hosea ten bales of cotton, part of a lot of twenty-four bales, the other fourteen to be forwarded as soon as practicable. ' Bills of lading for the ten bales were inclosed in the letter. The ten bales of cotton, marked with the plaintiff’s initials, were received on the twenty-third of April. It is in evidence that the next day after the ten bales were received, Hosea in person called at the warehouse of Phelps & Co. and informed them he had changed hi» mind in regard to shipping the cotton, having- concluded to sell it at Shreveport; that accordingly Hosea gave to Eapley & Co. an order for the cotton, and it was delivered to them.

On the thirteenth of April Copes wrote to Phelps & Co. informing them that he had written to them on the twenty-fourth of Miarch, acquainting them that they would receive twenty-four bales of cotton m;uked J. S. C., and forwarded for shipment to him, and that Hosea had written to them to forward the cotton without delay. In reply to this letter of Copes, Phelps & Co. wrote as follows:

Shreveport, April 24,1866.
“ Dr. J. S. Copps, New Orleans:
“ Bear Sir — Your favor of the thirteenth, and Mr. C. E. Hosea’s of the eighteenth, relative to twenty-four bales of cotton (J. S. C.) are before ns. We yesterday received through Messrs. Yoight & Co. ten bales of the cotton, accompanied by Mr. Hosea’s letter to us of the eighteenth ultimo, and a note from Messrs. Yoight & Co., stating the remaining fourteen bales would be forwarded as soon as possible. In accordance with Mr. Hosea’s instructions we will hold the ten bales uniil the balance arrives.
“ Truly yours,
PHELPS & CO.”

There is in evidence a letter of the eighteenth of April from Hosea, dated at New Orleans, and addressed to Phelps & Co., in which he informs them that no information had been received of the arrival at Shreveport of the cotton purchased by him for Dr. Copes. He requested them, if the cotton had not come to hand, to write to Nacogdoches, making inquiries in relation to it, and as soon as it was received to ship it to Dr. Copes. The plaintiff in this action sue.s Phelps & Co. for the ten bales of cotton, alleging that he has never received the cotton or any part of it. The answer is a general denial, and the defense is that defendants dealt with Hosea and are not bound in any manner to the plaintiff.

Judgment was in favor of the plaintiff. Defendants have appealed.

The plaintiff himself testifies that he was informed in New Orleans by J. E. Phelps, one of the firm of Phelps & Co., that they had received on his account ten bales of cotton, but they had turned it over to one Hosea, who represented himself to be Copes’s agent. This statement is contradicted by Phelps, one of the defendants, in his testimony.

Phelps & Co. received the ten bales of cotton with the knowledge that they were to be shipped to the plaintiff. Before Hosea gave the order for the delivery of the cotton to Eapley & Co., Phelps & Co. received the plaintiff’s letter confirming the statement of Hosea, that the cotton was to go to the plaintiff, and they received also by that letter the plaintiff’s instructions to ship the cotton to him by the first boat. The plaintiff spoke of the lot of twenty-four bales of his cotton to be sent to the defendants at Shreveport on his account, and directed them to ship the cotton to him without delay. The defendants, by the tenor of their letter, in reply to these instructions, implicitly recognized the plaintiff’s right to control the cotton. They in form him that ten bales of the lot had been received, and that the remaining fourteen would be forwarded to them as soon as possible. They expected to receive the remainder soon, and deemed it proper before shipping to await its arrival and ship the whole together, as instructed by Ilosea. The instructions of Hosea were that the cotton was for the plaintiff. The defendants in no instance questioned the plaintiff’s right to control the cotton, and under the status of the parties at the time Hosea gave the order to Rapley & Co. it was at least the part of prudent men, before delivering the cotton to the latter, to have required from Hosea an explanation of his order countermanding the shipment to the plaintiff. Phelps & Co. had become the agents of the plaintiff, and by failing to obey their instructions incurred responsibility to the plaintiff.

Judgment affirmed.

Rehearing refused.


author: Howell, J.

text:
    No. 360.
    J. J. Long v. L. Templeman, Curator.
    "WTiere the principal and the surety on a promissory note reside in another State at the time of the mating of the note, and the principal afterward removes to Louisiana, and the surety is compelled to pay the note where it was made, the surety can recover from the principal obligor in this State the amount which he has paid.
    from the Tenth Judicial District Court, parish of Caddo. Levisee,■ J.

      Egan, Williamson & Wise, for plaintiff and appellant. Nutt & Leonard, for defendant and appellee.
   Howell, J.

The plaintiff alleges that the succession of J. R. J. Daniel is indebted to him in the sum of five thousand dollars, with six per cent, interest, from January 1,1860, in this, that on the eighteenth of March, 1856, the said Daniel executed his promissory note in North Carolina for said sum with plaintiff and three others as sureties, on which the said Daniel paid the interest to the first of January, I860, and which he was compelled to pay. The defense is a general denial and the plea of prescription. ■

It is in evidence that when plaintiff paid the note it was not prescribed by the laws of North Carolina, where it was executed. If it was not prescribed by the laws of that State, neither the plaintiff, as surety, nor the principal Daniel could interpose the prescription of the laws of Louisiana against the liability to pay in North Carolina, and prescription not having accrued since the surety paid, the plea is not well made.

The case of Gates v. Renfroe, 7 An. 169, relied on by defendant decides, so far as applicable to this case, that the surety who bad paid without being sued, and without giving the principal notice, when the principal was not, by the laws of the State where the surety resided and the contract was made, bound to pay, could not recover from the latter in this State. In this case the principal obligor was bound by the laws of the State where the contract was made and the surety resided to pay, and hence the surety who paid there can recover of the principal obligor here. But he can recover only what he has paid, which is shown-to be only four thousand dollars, with six per cent, interest, as allowed by the laws of North Carolina, from the date of payment, twentieth of March, 1869. We regard plaintiff’s action as one simply to recover what he paid as surety, and not as the holder and owner of a negotiable note.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiff be recognized as a creditor of the succession of J. R. J. Daniel, represented by L. Templeman, curator, in the sum of four thousand dollars, with six per cent, interest from January 1,1869, to be paid in due course of administration. Costs of both courts to be paid by said succession.


text:
    No. 361.
    Mrs. H. Harrison v. Succession of John Adger.
    The act of Congress of ¿Tune 11, 1864, suspending the prescription, of actions in the insurrectionary States has no retrospective effect, and only suspends the prescription of such actions from the date of its passage during the time the defendant was beyond the reach of legal process. In this case it is shown that legal process could have been liad against the defendant from and after the month of August, 1865.
    Held — That the plaintiff could, under this law of Congress, only claim a suspension of prescription from the eleventh day of June, 1864, until the month of August, 1865, which time, when deducted from the time which intervened from the maturity of the obligation to the bringing of the suit, was sufficient to defeat the plea of prescription.
    from the Judicial District of Bossier. Wafldns, J.

      Egan, Williamson & Wise, for plaintiff and appellant. Griffin <& Snider, for defendants.
   Howell, J.

This is a suit on three promissory notes and a sum of money alleged to have been collected by the deceased as agent of plaintiff and not accounted for. The defense is a general denial, and the plea of prescription of five and ten years.

The notes on their face are prescribed, but plaintiff’s counsel contend that “the time during which the war continued must be deducted from the estimate,” and invoke the act of Congress of June 11, 1864, relative to the limitation of actions (13 Stat. at Large, 123), Stewart v. Kahn, 11 Wal. 493 and Auchincloss v. Frois, 24 An. 31, to support their position. ,

Upon the application of this act of Congress we must say that, under ts language it can not have retroactive effect, and provides only that the time, during which the person sued shall be beyond the reach of legal process by the operations of the war, shall not be deemed or taken as any part of the time limited by law for the commencement of the action. This law went into operation on the eleventh of June, 1864, and the courts in Bossier parish were accessible to plaintiff as early as July or August, 1865, showing a suspension of only thirteen or fourteen months, not sufficient to prevent the prescription of either of the notes herein. In the case of Stewart v. Kahn the United States Supreme Court held that the act of Congress was simply the recognition of the maxim, contra non valentem. This court has hold that this maxim has no place in our laws on prescription, and as the act of Congress has no retroactive effect, we can under our jurisprudence give it force only from its date, and apply its benefits for the time during which no legal process could reach the debtor after that date.

The claim for money collected is prescriptible in ten years, and the time not having expired when this suit was instituted prescription is not acquired. The defense as to Confederate money, urged 'in the brief, is not sustained by the evidence.

It is therefore ordered that the judgment appealed from sustaining the prescription of the demand in the petition of recouvention be reversed, and that plaintiff recover of the succession of John Adger. the sum of four thousand nine hundred and forty-six dollars and forty-one cents, with legal interest, from the twenty-eighth of October, 1862, and costs in both courts, to be paid in due course of administration.

Rehearing refused.


author: Howe, J.

text:
    No. 309.
    G. W. C. Trezevant v. J. D. Holly.
    Iu an hypothecary action to enforce a minor’s mortgage against a third possessor, the exception that the tutor abandoned his trust and left the country, thereby rendering it impossible to makei demand upon him or settlement with him, is not a good defense in bar to its prosecution.
    from the Fourteenth Judicial District Court, parish of Richland. Bay, J.

      Wells & Williams, for plaintiff. Todd, Brigham & Potts, for defendant.
   Howe, J.

This is an hypothecary action to enforce a minor’s mortgage against certain lands in the hands of a third possessor. Two exceptions were filed — first, that there is no allegation in the petition that a demand for the payment of the debt has been made of the principal debtor thirty days prior to the institution of the suit, or that notice of such demand has been given to the defendant according to law; and second, that the petition does not show any settlement of the tutorship, any account rendered, or any proceedings instituted to procure the rendition of an account.

It appears by the allegations of the petition and the evidence taken «on the trial of the exceptions that John Clark, the tutor, long- prior to the commencement of this action, abandoned his trust and went to reside permanently in Canada, leaving no property in this State. In view of these facts, rendering a demand on him or a settlement with him impossible, we think both exceptions were properly overruled.

The cases.of Brown v. Sadler, 13 An. 205, and Cummings v. Erwin, 15 An. 289, though not precisely similar, throw some light on this question.

Upon a review of the whole case on the merits, however, we have concluded that the interests of justice would be best subserved by remanding the cause for a new trial. The claim of a plaintiff against a third possessor in such a case and for such a reason ought to be •made very certain. It is very uncertain as made out by this record.

It is therefore ordered that the judgment appealed from be set aside, and the cause remanded for a new trial, appellee to pay costs of appeal.


author: Ludeimng, C. J.

text:
    No. 358.
    Amos Abrams v. A. G. Teague.
    An attachment will lie against a debtor who is about to sell or dispose oí his property to defraud his creditor.
    irom the Eighteenth Judicial District Court, parish' of Bossier. Watkins, J.

      J. D. Watlems, for plaintiff. Griffin & Snider, for defendant.
   Ludeimng, C. J.

This is a suit for an amount of cotton loaned, or its value, and for moneys loaned and supplies furnished to the defendant. The suit was commenced by personal citation and an attachment based on the allegation that the defendant was about to dispose of his property to defraud the plaintiff.

The answer contained a general denial — an averment that this suit was lor a settlement of a partnership, and that the plaintiff is indebted to him for damages caused by the injury done his crop by plaintiff’s cattle, bogs, etc., and also for board durin'g six months. He avers that the attachment was wrongfully sued out.

Tb$ evidence satisfies us that the plaintiff’s demands are just, except in one particular, which should be reduced four dollars and a half; and it further shows that the defendant was about to éell his property to defraud the plaintiff. These facts appear from an agreed statement of-facts filed in the case.

It is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgment in favor of plaintiff :and against the defendant for the sum of six hundred and fourteen .dollars and eleven cents, with five per cent, per annum interest from judicial demand, and for the delivery of three thousand three hundred and fifty-three pounds of lint (cotton) baled; or in default thereof, for five hundred and seventy dollars and thirty-five cents, with five per cent, per annum interest thereon from the first of January, 1872.

It is further ordered that the attachment be maintained; that the privilege resulting therefrom be recognized and enforced against the property seized; that the reconventional demands be dismissed, as in case of non-suit, and that the defendant pay costs of both courts.


text:
    No. 343.
    Hoss and Durham v. E. D. Williams.
    An attachment which has been granted on the allegation that the defendant was about to remove his property out of the jurisdiction of the court without paying his debt will be set aside if the evidence fails to show such intention, and the attaching creditor will be condemned to pay the damages caused by its wrongful issue.
    Privileges spring from the law and not from contract.
    from the Tenth Judicial District Court, parish of Caddo. Levisee, J.

      John Mi Lawton, for plaintiffs and appellants. O. M. Pegues, for defendant and appellee.
   Howell, J.

This is a suit on an open account for $699 20, accompanied with an attachment based on the additional grounds authorized by the act of 1868, under which thirty bales of cotton were seized. After the property was bonded by the defendant the plaintiffs filed an amended petition alleging that they had a privilege as furnishers of supplies upon the crop raised on the plantation of defendant in 1870, and obtained a writ of sequestration, under which twenty bales were-seized and afterwards bonded. Motions were made to dissolve both writs, on grounds substantially that no cause existed for their issuance. These motions were by consent referred to the trial on the merits. The answer contains a general denial and the allegations that the-plantation belonged to defendant’s mother, and was cultivated by different parties on separate leases, and that only four bales of the cotton seized belonged to defendant. Judgment was rendered for the amount claimed, sustaining the attachment, granting a privilege on-the cotton attached and condemning plaintiffs to pay the costs of the-sequestration. The defendant appealed.

On the trial the defendant offered the testimony of several witnesses-to prove how much cotton.was raised on his mother’s plantation in-1870; how much of it had been sold before the institution of this suit?by whom sold and for what purpose; who made and owned what was so sold; and that all of the cotton attached, except four bales, belonged to other persons; to show the good faith of defendant, which was exclucluded on the ground that defendant was without interest, to show that the property attached belonged to other persons, and such defense-is not allowable.

The testimony (which comes up with the record) was clearly admissible on the issues presented by the motion to dissolve the attachment, which were referred to and tried with the merits. By it the defendant proposed to prove that there was no legal ground for the attachment, as he was acting in good faith and not with the intention of defrauding plaintiffs or placing his property beyond their reach. And we think it abundantly establishes such facts and shows a want of legal ground for the attachment.

Upon the merits the correctness of the account is not disputed, but it is denied that there is any privilege on the crop of 1870 for the first item, $269 20, which is a balance from the account of the preceding year. This is correct. Privileges can not be given by consent. The privilege as to the remainder of the account sued on must be enforced upon the cotton sequestered, as there is no evidence to identify and separate that belonging to other parties.

The claim for damages for the illegal attachment should be allowed, which, under the circumstances, we fix at fifty dollars for counsel fees.

It is therefore ordered that the judgment appealed from be reversed, and that the attachment issued herein be dissolved at plaintiffs’ costs, and that defendant recover of them fifty dollars damages. It is further ordered that plaintiffs recover of defendant $699 20, with legal interest from March 4, 1871, and the privilege of furnishers of supplies on the property sequestered for the sum of $430 only of said amount, and all other costs in the lower court. Plaintiffs and appellees to pay costs of appeal.


author: Ludeling, C. J.

text:
    No. 313.
    E. W. Warfield et al. v. F. P. Stubbs et al.
    Personal property that has been seized under a sequestration and released from seizure on a bond given by the defendant reverts back to his possession, and he may dispose of it at his pleasure without consulting the seizing creditor.
    In such acase the securities on the bond can not escape Jiability on the ground that the defendant has been required to remove the property sequestered from the premises leased.
    from the Fourteenth Judicial District Court, parish of Ouachita. Bay, J.

      W. J. Q. Baker, for plaintiffs. Stubbs & Oobb, for defendants and appellants.
   Ludeling, C. J.

This suit is to enforce the obligation contracted by the defendants, sureties on a bond, given to release movable property seized under a writ of sequestration.

The defense is that the sureties are discharged from all liability on the bond, because Oliver was required by the lessors to remove from premises leased the movables sequestered, as thereby they lost their privilege and right of pledge on the property, and they could not subrogate the defendants to all their rights, privileges and liens unimpaired as they existed at the time defendants signed the bond.

There is no merit in the defense. It is well settled that after the sequestration had been set aside by executing the delivery bond, Oliver had the right to dispose of the movables without the consent of the plaintiffs, and that the latter had no power to prevent the former from removing the property from the plantation leased. The bond was substituted for the property.

The obligation of the sureties in this case was that they would be responsible that the defendant Oliver would not send the movables seized out of the jurisdiction of the court; that he would not make an improper use of them, and that he would faithfully present .them after definitive judgment in case he should be decreed to restore them to the plaintiffs. C. P. 279. The judgment of the court having been against Oliver, and the principal and sureties to the delivery bond having failed to restore the property bonded to the plaintiffs, the sureties have incurred the penalty of the bond.

But the evidence in this record shows that the sureiies were aiding and assisting their principal Oliver in all the transactions between Oliver and the plaintiffs, of which said sureties now complain, and that a large portion of the movables were placed in the possession of Stubbs & Cobb and B. M. Horrell & Co. Therefore neither equity nor law will support the defense set up. The case of Charles Clapp v. Henry Seibrecht, cited by defendants, instead of supporting their position is •directly against it. 11 An. 528. The other authorities cited are not in point. In the case of Harrison v. Jenks et als., 23 An. 707, the question decided was that the privilege of the lessor was not destroyed by the release of the provisional seizure by bonding, and that if the property remained on the premises leased, the privilege might be still asserted against it. It was not, however, decided that notwithstanding the defendant had bonded the property he could not remove it from the premises leased. To hold this would be practically to repeal .article 279, Code of Practice.

The only question to be examined as between Stubbs & Cobb and B. M. Horrell & Co. is whether or not the latter are entitled to a credit on the judgment in favor of Stubbs & Cobb over against them for the proceeds of forty-five or forty-six bales of cotton received from Oliver and accounted for to him. It is contended that whatever Stubbs & Cobb received as sureties for Oliver they must account for to B. M. Horrell & Co., their guarantors. If Stubbs & Cobb received this cotton as security to indemnify themselves against loss on account of their obligation as Oliver’s security, the position is, no doubt, correct. But the evidencé does not, in our opinion, establish that fact. It appears that after the release of the property from the seizure under the sequestration, and after the seizure of the property under a fieri facias issued under a judgment in favor of B. M. Horrell & Co., Oliver delivered to them the cotton aforesaid for shipment. They accounted to him for the proceeds thereof, thus: They retained the amounts due them by Oliver for fees in several suits and for bagging, etc., furnished for the cotton, and paid him seven hundred dollars in money. If Oliver could dispose of the property after the release, we can imagine no good reason why he could not pay Ms attorneys as well as B. M. Horrell & Co. themselves, as they did out of the proceeds of the cotton.

The plaintiffs and appellees have prayed for damages for a frivolous appeal. We.think they are entitled to them.

It is therefore ordered and adjudged that the judgment appealed from be affirmed, with costs and ten per cent, damages for a frivolous .appeal.

Rehearing refused.


text:
    No. 316.
    L. M. B. Rind et al. v. Jay L. Hunsicker et al.
    An attorney at law who has instituted a suit which is afterward compromised before judgment, can not be permitted to prosecute the suit to judgment for the purpose ot enforcing a privilege upon it for Ms professional services in the case.
    from the Fourteenth Judicial District Court, parish of Ouachita. Ray, J.

      W. J. Q- Baker, for plaintiffs and appellants. Morrison & Farmer, for defendants and appellees.
   Howell, J.

The plaintiffs having obtáined a judgment in their favor, in the suit of the Citizens’ Bank v. Fluker et al., for the sum of $3500 in the hands of the sheriff of Ouachita parish, and failed to get it before the death of the said sheriff, instituted this suit against the sureties on Ms official bond for the said amount, and twenty per cent, damages. Exceptions and answers were filed, and pending the suit the claim was compromised between the qiarties, the agent of plaintiffs stipulating to dismiss the suit. On application for this purpose an order of dismissal as to plaintiffs and defendants was granted but not then signed. At the same time W. J. Q. Baker, Esq., filed a petition in this suit alleging that he had been and then was the attorney at law who had conducted all the proceedings for plaintiffs in relation to the matter; that they are non-residents and have no property in this State except the said money; that his professional services in the matter are worth $1500; that by law he has a special first privilege for the same on the judgment he may obtain in this case; ” that no judgment has yet been rendered herein, and the plaintiffs have no right to sell the claim or do any act tending to defeat Ms privilege without paying him; and the attempt to sell their claim to the defendants was a fraud ■on his rights and an illegal attempt to deprive Mm of his privilege and Ms fees and the costs paid by him, all of which are secured by a privilege on the only movable property plaintiffs possess in this State. He prays for leave to file this motion:

‘‘ That this ease proceed to judgment, and that in the judgment the court decree that petitioner has a first privilege on said judgment for the amount of his professional fees ($1500), to be paid by preference, and that the aot of compromise and sale and subrogation, or other act entered into between the plaintiffs and defendants, be declared as to petitioner fraudulent; simulated, collusive and void, and that the costs of the clerk and sheriff paid and due be taxed and ordered to be paid as part of the judgment before the said assignees be permitted to take anything.”

In making the order of dismissal first above referred to, the court resérved to said Baker his right to introduce testimony on his said rule for fees. Bills of exceptions were taken by him to the order of dismissal, and by defendants to the filing of tile said motion or petition, and the order to show cause thereon, and they excepted to the form of proceeding.

We regard the proceeding as novtel and irregular; but viewing it as an intervention, the nature and object of which are determined by the prayer, we deem it the better course to decide on the right to make or obtain the demand. We know of no law giving an attorney at law a privilege on a judgment not yet in existence, and no law to compel a party to prosecute a suit to a judgment in order that the attorney in the suit may obtain and enforce a privilege on the said judgment for his professional services. The plaintiffs having compromised their suit against the defendants, which they had a right to do, and demanded its dismissal, it was at an end, and there is no suit in which an intervention can be maintained.

Judgment affirmed.

On Application por Rehearing.

The court did not decide, as intimated by the applicant, that Baker had not a privilege on the payment obtained by him in favor of Rind in the suit of Citizens’ Bank v. Pluker et al. 'We decided only on the issues presented in the rule of Baker in this case.

Rehearing refused.