text:
    No. 1116.
    Mrs. L. C. Bracey et al. vs. Mrs. M. M. Calderwood et al.
    Kon-residents of tli© State cannot be legally represented by a curator ad hoc in a persona aooion against them, unless property of theirs has been subjected to the process of the court or actual service has been made upon them. The appointment of a curator ad hoc to them in such a case is unavailing,
    Judgment cannot be rendered against a party who is not mentioned in the proceeding and who has not joined issue or made himself party. A mere citation served on such party does not compel appearance or justify judgment in default.
    Defenses not justified by the answer and made in oral or printed argument, do not constitute issues and are not entitled to be passed upon.
    One not a party to a proceeding cannot on appeal ask an amendment of a judgment which cannot affect him.
    PPEAL from the Fifth District Court, Parish of Ouachita. . Bichardson, J.
    F. Garrett for Plaintiffs and Appellees.

      R. G. Cobb for Defendants and Appellants.

      H. H. Russell for Warrantors, Appellants.
   The opinion, of the Court was delivered by

Bermudez, C. J.

This is a suit by an evicted purchaser against the representatives of her author’s vendor and warrantor for indemnity.

The defendant called in warranty the authors of her husband, whose universal legatee and executrix she is. Three of these were non-residents, and a curator acl hoe was appointed to represent them.

There was judgment for plaintiff against the estate of Oalderwood ; but the court declined to render judgment against the non-residents.

The defendant and several warrantors have appealed. The former complains of the judgment in two respects only:

1. That it is erroneous in not having been rendered against the nonresidents : S. Y. Benson, F. B. Cauthorn and H. B. Williams; who, it is claimed, were legally cited by process on the curator ad hoe.

2. That the judgment should have been rendered against Mrs. F. C. Downey, an heir of H. M. and T. R. Bry, who it is alleged was cited and failed to appear.

3. The warrantors of defendant, who have appealed, complain of the judgment, saying that the plaintiff cannot claim to have been evicted by the enforcement of a previous mortgage, because she was directed on a personal obligation of hers, incurred by the issuance of a twelve months’.bond furnished for the purchase of the property and enforced against her.

4. There is a motion to amend. First, by making the j udgment one in favor of Mrs. Downey and the succession of Bry and wife j and second, by allowing the curator a fee of $10 for each of the absentees represented by him.

I.

The suit is not one in rem. It is a personal action. The record does not show that the absentees own any property in the State which was subjected to the process of the court; or that any citation was actually served on them; or that they have joined issue in person or by attorney.

In the recently decided ease of Laughlin vs. L. and N. O. Ice Company (No. 8956), 36 Ann. we have held that it is now the settled jurisprudence of the Supreme Court of the United States that, except in actions affecting personal status, or in those partaking of the nature of proceedings in rem, like suits to partition real estate, foreclose mortgages, or enforce privileges or liens, substituted service, as against a non-resident, can be effectual, as due process of law,” under the fourteenth amendment of the Constitution of the United States, only where, in connection therewith, property in the State is brought under the control of the court and subjected to its disposition, by process adapted to the purpose. The question being federal in its nature, former jurisprudence of this Court must yield to the authority of the highest court in the country.

II.

Defendants’ call in warranty does not mention Mrs. Downey’s name, or ask that she be cited. She is a married lady. No default was entered against her, and she has not joined issue with or without proper authority. A mere citation served on her could not bring her and her husband into court, did not make them parties, could not force them to answer, and cannot justify any judgment against her. The judgment cannot and does not effect her to any extent.

III.

The answer to defendants’ call in warranty does not raise the issue now sought to be formed. The gravamen of the defense is, that if any mortgage existed at the time of sale on the property it was well known to defendant’s author; and that in waiving production of the certificate of mortgage, the parties understood that the vendor assumed the responsibility of paying the mortgage.

A reference to the act of sale to I-Iart, from whom plaintiff inherited the property, shows that it is absolutely reticent on the subject. The inferences of assumption and the deductions, or consequences, alleged to flow therefrom, are ill founded in fact and in law, and therefore unauthorized.

The means of resistance now urged is clearly an afterthought, as it is advanced only in lead pencil, in two short sentences, hastily added, in the margin of the fore last page of the printed brief of counsel, who submitted without oral argument.

Defenses not authorized by the answer and which are made iu argument only, form no part of the pleadings. They do not constitute issues and are not entitled to consideration.

IV.

As Mrs. Downey is not a party to the proceeding in warranty, she can neither be dealt with as appellee nor assume that attitude. She has therefore no right by an appearance in this Court to make herself appellee, and as such ask any amendment of the judgment of the lower court which she is authorized to ignore.

V.

The curator ad hoc is entitled to the compensation which he claims.

It is therefore ordered and decreed that the judgment appealed from be annulled by allowing T. O. Benton, Esq., curator ad hoe, as costs, ten dollars for representing each absentee — that is, thirty dollars in all; and that thus amended, said judgment be affirmed, with costs in both courts.

Judgment affirmed.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 1040.
    R. M. Walmsley & Co. vs. Mrs. S. A. Nicholls and Husband.
    The amendments to articles 81 and 95 of the Constitution, promulgated on the 15th of May, 18S4, did not impair the right of appeal in oases involving more than one thousand, hut less than two thousand, dollars, then pending in the Supreme Court.
    The legal effect of the amendments was to immediately strip the Supreme Court of jurisdiction of those cases; hut the jurisdiction'was not thereby destroyed. It was, by the operation of the amendments, transferred to the courts of appeal, with full power to hear and decide said cases.
    Hence a motion to dismiss a caso of that category cannot prevail in the Supreme Court whence the appeal unimpaired in all its legal effects will he sent to the proper court of appeal.
    A PPEAL from the Fifth District Court, Parish of Richland. _L A_ B/ioha/rdson, J.

      Talbot Stillman for Plaintiffs and Appellees.

      R. G. Cobb for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

This case, which involves an amount in dispute of more than one thousand, and less than two thousand dollars, was pending under submission on appeal in this court, when the recent amendment of the Constitution, affecting its jurisdiction, was adopted by the people. Suggesting that we have lost jurisdiction of the cause under the effect of the amendment and the omission of any provision for tho transfer of the cause to any other tribunal, appellees move that the case be stricken from our docket and the appeal dismissed. The amendment which restricts our jurisdiction to cases involving an amount exceeding two thousand dollars, is followed by another amendment which vests jurisdiction over cases in which the amount in dispute does not exceed two thousand dollars in the courts of appeal.

The manifest intention of the law-maker in framing the amendments was to divest the Supreme Court of jurisdiction of all cases involving an amount in dispute exceeding one thousand but not two thousand dollars, and to vest jurisdiction of tliat class of cases in tlie courts of appeal. At the moment of the adoption of the amendment, we were stripped of. jurisdiction of the class of cases, including those then pending in the court, and we were powerless thereafter to review or decide them. But the right of appeal was not thereby destroyed or annihilated. By the operation of the two amendments that jurisdiction was at once vested in another appellate tribunal, to which such cases were thereby transferred.

When the present constitution went into effect, and the courts of appeal were created and organized, the Supreme Court was stripped of its previous jurisdiction of cases involving amounts in dispute between five hundred and one thousand dollars, which fell thereafter within the jurisdiction of the courts of appeal. In that instrument, provision was made for the immediate transfer of such cases from this court to those tribunals, and thus the appeals were continued by operation of the law in the newly created tribunals.

The recent amendments contain no such provision in terms, hub a similar intention is manifest from the two amendments when construed together.

We see nothing in the amendments which could justify even a suspicion that the right of appeal in pending cases of that class was intended to be destroyed. We find, on the contrary, that the intention was clearly to transfer, without restriction or qualification, the jurisdiction of those cases from one tribunal to another.

The omission to provide in terms for the mode of transfer cannot affect the rights of an appellant, as in the case at bar, who has lodged his appeal in the tribunal to which it was returnable at the time that he took it, and to whom no fault can be attributed.

The legal effect of the two amendments together has been practically to remove this appeal from this court to the court of appeals. Nothing of that case now remains in this court but the record or papers, and our plain duty in striking the case from the docket, is to give effect to the substantial meaning of the amendments. To dismiss the appeal as prayed for would wantonly deprive the appellant of a right which he had at the time that he took his appeal — a right which has not been wrested from him, but which, on the contrary, was intended to be maintained and preserved by the very terms of the two amendments in question.

Appellees have called our attention to decisions of this Court and of the Supreme Court of the United States in support of the proposi-lion tliat the duty of an appellate tribunal which is divested of jurisdiction of a pending cause is to dismiss the same. But an examination of those decisions shows that they dealt with cases in which the constitutional or legislative provisions which stripped the appellate tribunal of its jurisdiction had not vested that jurisdiction in any other tribunal.

In those cases the previously existing jurisdiction had been effectually destroyed, and the appellees were entitled to the benefit of the judgments rendered in their favor, and which could not be reviewed by any tribunal. Hence, the appellate courts in which the cases were pending had no other alternative but to dismiss the appeals. Meyers vs. Mitchell, 20 Ann. 533; Cushing vs. Hickman & Thompson,20 Ann. 567; Insurance Company vs. Ritchie, 5 Wal. 541; Ex parte McCardle, 7 Wal. 506.

In the present case, the tribunal in which it was pending has been stripped of its jurisdiction, but the right of appeal has not been destroyed ; it has, on the contrary, been guardedly preserved and kept alive, and its jurisdiction has been entrusted to a competent appellate tribunal, over which the previous court has a supervisory control. The transfer is as effective as if it had been directed in precise terms in the amendments.

It is therefore ordered that the motion to dismiss this appeal be denied. It is further ordered that this case be stricken from our docket, and that the record of the same be transferred to the Court of Appeals of the Second Circuit, holding sessions in and for the parish of Rich - land — costs of appeal to abide the, final decision of the same.


author: Manning, J.

text:
    No. 1109.
    R. G. Cobb vs. J. E. McGuire, Tax Collector.
    This Court has not jurisdiction of suits wherein the mode of enforcing the payment of taxes is alone in dispute, unless the amount of the taxes claimed is large enough to bring them within our jurisdiction. It is only where the constitutionality or legality of the tax is contested that our jurisdiction attaches without regard to the amount involved.
    Where no sum whatever is mentioned in the pleadings in an injunction of a tax sale, and the advertisement makes no mention that the sale is to be for penalties, only the sum stated in the advertisement as the taxes clue will be considered in determining jurisdiction.
    APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      R. G. Cobb far Plaintiff and Appellee.

      T. O. Benton for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

This is an injunction restraining the sheriff as tax collector from selling the property of the plaintiff for unpaid taxes. The pleadings nowhere contain any mention of the amount involved, but the assessment of the property and the advertisement of its sale shew that the taxes now in dispute are in amount $1,078.06.

The want of jurisdiction is palpable. We gathered from tlie oral argument that it was supposed our jurisdiction attached because the collection of a tax was involved. We have jurisdiction when the constitutionality or legality of a tax is the matter in dispute whatever may be its amount. No such question is presented here, but simply whether the tax collector is proceeding legally to enforce the collection of a tax, the constitutionality or legality of which is not disputed. In such case, the amount of the taxes must be sufficient to attract our jurisdiction as in other cases.

It was also stated at bar that the interest and penalties together with the taxes malte considerably over two thousand dollars, but we have in vain searched the record to ascertain that the collector was proposing or endeavouring to enforce the payment of the penalties. His advertisement does not announce that he was doing so. On the contrary the terms of sale are that “the property shall be offered first for not less than the toral amount of all the taxes, licenses, interest, expenses and costs due thereon on the 1st day of January 1880, and the costs of sale under this Act,‘and after the entire list has been offered, all such property upon which no bids equal to said amounts have been made, shall be again offered without readvertisement for not less than the principal of said taxes together with eight per cent per annum interest from the date when said taxes became due.”

There is therefore no notice that the penalties will be exacted, or that the property will be sold to pay them, and if there had been an adjudication at a bid not less than the total amount of all the taxes, licenses, interest, expenses and costs, and the bidder had tendered that sum, how could the sheriff have demanded the penalties in addition, when the bidder was offering to comply with the terms of sale as published?

There is a recital at the close of the advertisement commencing thus: —“On all taxes due prior to 1869 fifty per cent damages and 25 per cent additional per annum from 1869 to January 1, 1876 and eight per cent .thereafter..” Then follows similar recitals of other'damages on taxes for other years, but even these recitals are omitted in the later advertisement, there being two in evidence. There is not ib the body of the advertisement, or terms of sale, or any where 'else any statement or announcement that these penalties or damages were part, of the claim for which the property was to be sold. And without the inclusion of them in that claim, the amount is below the jurisdiction we can now exercise.

It is true the plaintiff in his statement, which supplies the place of the burnt petition, avers that the collector had advertised he would sell for certain penalties, but the fact is that he had not so advertised. And it is also true that the defendant treats the suit as if it involved the penalties, but as parties cannot by consent confer jurisdiction xipon us, so they cannot by mistake increase the amount involved so as to confer it. It must be remembered in this connection there is no averment of any amount, mistaken or true. The pleadings, we repeat, are silent upon the amount, no allegation being made even of the amount of the taxes, and we ascertain that amount solely from the assessment and the advertisement, and not only no amount of the penalties is anywhere mentioned, but no announcement that the penalties, if their amount is ascertainable, are demanded or that the property is to be sold for them.

It is rare, if not unprecedented, that neither the petition nor answer in a suit contains any mention of the sum, or of any sum involved. Rarely must resort be had to the evidence to ascertain what sum is in dispute, but to go further and include sums which are not claimed or in proof, would be to supplement defective allegations and defective evidence for the purpose of embracing jurisdiction for which we have no warrant.

We must not be understood as deciding that the penalties, if included, could be considered a part of the capital or principal so as to give us jurisdiction. Upon that matter we hold bur opinion absolutely in reserve.

By constitutional amendments recently adopted the appellate jurisdiction of suits that like this involve amounts less than two thousand dollars has been conferred upon the Circuit Courts, and this cause must therefore be removed to that tribunal.

It is ordered that this appeal and the record thereof be transferred to the Court of Appeals for the Second Circuit holding term for the parish of Ouachita.


author: Fenner, J.

text:
    No. 1106.
    Rev. L. Enaut vs. J. E. McGuire and J. Garrett, State and City Tax Collectors.
    Vacant property held in private ownership by the authorities of a church, who had bought it in anticipation of an increase in size and population of the city in order that the church might have room for improvements in case of such increase, and with the intention of erecting thereon a church, school or hospital when needed j in absence of any actual use for such purposes, and of any immediate intention or preparation to construct such buildings, is not a “place of public worship,-” or a “charitable institution,” or “property used for colleges, or other school purposes,” within the meaning of article 210 of the Constitution, and is not exempt from taxation.
    APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      R. Ray for Plaintiff and Appellant.

      T. O. Benton fot Defendants and Appellees.
   The opinion of the court was delivered by

Fenner, J.

Plaintiff, who is parish priest for St. Matthew’s Church in Monroe, brings this action to enjoin the collection of State and city taxes on property held for the benefit of the Roman Catholic Church, on the ground that it is exempt from taxation under the provisions of article 207 of the Constitution of 1879.

The property consists of two vacant squares in the city of Monroe which have never been leased or used for any purpose whatever. They were bought in 1874, and, according to the testimony of plaintiff himself, who is the sole witness in the case, “the purchase was made upon my representing to the proper parties that it would be advisable for the church to have some grounds for improvements in case the city should increase. That was the reason of the purchase. They were purchased exclusively for the use of the Catholic Church, and have not been on the market since, and are waiting for the building to be made as soon as possible. It is intended to build a school-house, or church, or hospital, as may be needed on those lots.”

This is the sole testimony in the transcript affecting the question. '

Article 207 of the Constitution exempts “ places of religious worship, all charitable institutions, all buildings and property used exclusively for colleges or other school purposes, etc.”

We are not precisely advised whether plaintiff claims that the property here is a “place of religious worship,” a “charitable institution,” or “ property used exclusively for colleges or other school purposes.”

Unless it falls, literally or by clear intendment, witliin one of these categories, there is no warrant for the exemption claimed. Literally, it certainly falls within neither of them. It is not a “place of religious worship;” it is not a “charitable institutionit is not “used for college or other school purposes.” Nor, in‘any legal sense, is there a dedication of the property to any one of those purposes or to all of them combined. Obviously, it is not yet determined whether a church, or a school, or a hospital shall be established. A mere vague purpose exists at some infinite time to establish one or more of these institutions on the property, as may be needed. Nothing fixes this purpose; nothing prevents the owner from abandoning it at will; nothing opposes his right to convert it into business or residence property, or to sell it to the first advantageous purchaser. Such an ambulatory and purely potestative dedication amounts to nothing.

The plain fact is that the church authorities, impressed in .1874 with the belief that the city of Monroe was destined to increase largely in size and population, thus adding to the value of property and extending the field of operation of the church, with that judicious and fax-sighted providence which characterizes them, thought it wise to invest in this property, before the anticipated accretion iu value should take place, in order (to use plaintiff’s language) that the church might “ have some ground for improvements in case the city should increase.”

The property has been held for ten years. The anticipated increase of the city has not taken place. The expansion of the church’s field and needs has not arisen. The necessity for the “improvements” is not yet upon it. No plan is yet decided upon. No steps are on foot to build church, school or hospital. For aught that appears, the vague and undefined purpose is no nearer fruition to-day than it was ten years ago. Non constat that it will ever be carried out. By no stretch of even the most liberal interpretation can property thus owned and situated be brought within the irarview of the constitutional provision exempting “ places of public worship, charitable institutions and property used for colleges or other school purposes.”

Analogy is entirely wanting between this case and those suppositi-tious ones instanced by plaintiff’s counsel, such as: property upon which a church, school or hospital is being constructed; or property on which such buildings had existed which had been burned down and while preparations were being made to rebuild; or the new graveyard, waiting for death to bring its tenants. Such cases will be determined when they arise, but upon principles entirely inapplicable here.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 1108.
    School Board of East Carroll Parish vs. School Board of Union Parish.
    A school hoard organised according to law has a right to stand in court to claim from an other school hoard likewise constituted, school funds which should have been paid to it by the State authorities and which were illegally paid out to the latter. A receipt therefor would exonerate the debtor hoard,
    If the funds aro not in kind in the possession of such hoard, hut can be traced to property in which thoy have been invested by such board, the property itself can be recovered in place of the funds which it represents.
    An action to recover under such circumstances is not barred by the prescription of five years or less.
    APPEAL from the Third District Court, Parish of Union. Graham, J.

      W. R. Rutland for Plaintiff and Appellant.

      A. Barksdale for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action for the recovery of $4440 93, as illegally paid to and received by the defendants and invested by them in a lot and building, or school house thereon-.

The defense byway of exception is: that the plaintiffs have no right of action and, therefore, no standing in court, and that the claim is barred by proscription.

Prom a judgment sustaining those defences this appeal is taken.

I.

Prom the averments of the petition, which must be taken for true for tlie purpose of the exceptions, it appears that the State Treasurer, on warrants of the Auditor, has at different times paid to the defendants various amounts, aggregating $4440 93, as the interest on the free school fund due township 19 north, range 13 east, under Act of Congress of February 15,1843, and Acts of the Legislature 321 of 1855, and 182 of 1857, on a credit of $13,396 81; that the annual interest on this fund is $833 80, whereof $556 20 has been annually paid to the defendant for eight years, aggregating the sum of $4440 93, while the difference, $277 60, has been annually paid to plaintiffs; that the whole of the interest, $833 80, should have been paid to the plaintiffs, for the reason that township 19 north, range 13 east, is in East Carroll and not in Union parish; that the apportionment and distribution of the school fund has to he made on that basis; that the defendants, when they drew and received those various amounts, Knew that they did not accrue to them and have used the same for the purchase of a lot and the construction thereon of a school house, at a cost of $3712 09; that there remains in the hands of defendants a balance of $672 84.

In order to ascertain whether the plaintiffs have a right of action, it is only necessary to inquire whether a payment to them would dis charge the defendants.

There can he no doubt, under the averments, that the money was plaintiffs’ property in the hands of the State, as a fiduciary; that if the money, instead of having been paid to the defendants had been paid to the plaintiffs, the payment would have been a valid one and the State would have been released jpro tanto.

It is evident that if the defendants were to return the money to the State and the latter was to pay it over to the plaintiffs, both the defendants and the State would he discharged from responsibility as to it.

Now, if instead of paying it in this circuitous mode, the defendants were to pay it to the plaintiffs, there can be no doubt they would likewise cease to be liable for it.

A receipt from plaintiffs would, therefore, exonerate the defendants. This circumstance suffices to give them the right to claim judicially what is due them.

If the allegations of the petition be true, then it follows that the defendants have knowingly and, therefore, wrongfully received funds which did not accrue to them, but which should have been paid over to plaintiffs. Such being the case, the petition itself discloses a cause of action and, on proof, the plaintiffs are entitled to recover the money or the property, to which it has been traced, with which it is identified and which represents the bind.

n.

The next defense is that of prescription. This is not a suit in damages for a tort. It is an ¡icti.on.to recover, in integrum, money or the property representing it, which ¿s in the precarious possession of the defendants in a fiduciary capacity and not as owners, with the averred knowledge that it does not belong to them, but to plaintiffs. The defendants hold as the agents or representatives of the plaintiffs, and if prescription can be pleaded at all, they cannot plead that which was set up, which was: one, two, three and five years.

It is, therefore, ordered and decreed that the judgment appealed from be reversed. It is now ordered and decreed that the exceptions filed be overruled and that the case be remanded to tlie lower court for further proceedings according to law, and that defendants pay costs of appeal; the costs of the lower court to abide the final decision of the cause.


author: Poché, J. Manning, J.

text:
    No. 1117.
    M. L. Bryant vs. E. S. Austin, Executor.
    The Supreme CJourt has jurisdiction of an action for the nullity of a judgment oí divorce, although no pecuniary amount is in dispute.

      A judgment of divorce obtained by one of the spouses against the other, who is absent from the State, will be annulled if the party who has obtained it has used fraud or ill practices,
    APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      R. Ray, D. C. Morgan and B. W. Johnson for Plaintiff and Appellee.

      Stubbs & Russell for Executor, Appellant.

      C. H. Trousdale for Absent Heirs, Appellant.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

Plaintiff brings this suit for the nullity of a judgment of divorce rendered in favor of her husband, since deceased.

As appellee she moves for the dismissal of this appeal on the ground of our want of jurisdiction ralione materiae.

Her contention is that the pleadings disclose no pecuniary amount in dispute and that this is not a suit for divorce or; separation from bed and hoard. It cannot he denied that under the terms of the Constitution, this Court has jurisdiction of an appeal from a judgment of divorce. Now, an appeal is one of the modes of revising or reversing a judgment. And an action of nullity is another mode. C. P. Art. 556.

If the Supreme Court has jurisdiction by appeal over an action for divorce, it is difficult to conceive by what process of reasoning the same court could he deprived of jurisdiction «over an appeal from an action for the nullity of a judgment on the same cause of action.

We hold that this Court has jurisdiction in the premises, and hence, the motion to dismiss is denied.

On the Merits.

The grounds of nullity urged by plaintiff are substantially that the judgment was obtained by her late husband by fraud and other ill practices.

The record contains a considerable mass of irrelevant testimony, and contains several bills of exception levelled at the admission of a great part of the same.

The undisputed relevant facts of the controversy are as follows:

Plaintiff was married to the. late M. M. Bryant, who was then a resident of the parish of Ouachita, Louisiana, in March, 1868, in Camden, Arkansas, the place of her residence.

A short time thereafter the husband returned to Louisiana, leaving his wife in Camden, whence she came to join him in March following. He was a mechanic whose occupation, on different plantations, allowed him little or no opportunity to remain at home. His wife remained with him nine months; at the end of which time, with the consent of her husband, she returned to her former home, with the understanding that she would return to Louisiana as soon as her husband wished it, or as soon as he could provide a suitable home for her.

In May, 1871, at his request, she came back but remained only a few days, as her husband had not yet procured a home, and as he requested that she would go back to Camden and remain there until he could make proper arrangements for their living together. During the, time of their separation they corresponded together until September, 1878, when the husband ceased writing.

In November, 1878, he filed his suit for separation against his wife, on the ground of abandonment, which culminated in a final judgment of divorce, in October, 1880.

In his petition he alleged that his wife, who had abandoned the matrimonial domicile, was absent from this State and to the best of his information, she was living in the State of Arkansas.

The proceedings were carried on contradictorily with an attorney appointed by the court to represent the absent wife, and all the requirements of process were complied with. But the wife was not informed of the proceedings, and had no knowledge of the suit or judgment until October, 1882, at the same time that she heard of her husband’s death.

The attorney of the absentee, immediately after his appointment, inquired of the husband, Bryant, for the address of his wife, and he was informed that she was somewhere in Arkansas, her precise locality being unknown to Bryant, as he stated. The record shows, to our entire satisfaction, that Bryant knew perfectly well, that his wife was then, as she had always been since 1871, in Camden, where he had married her, and where he had left her in March, 1868, whence she had come to him in March, 3869, where she returned in December, 1869 — where she had remained until 1871, in May, at which time she had come back to this place to live with him; to which place she had retened in obedience to his wish and Ms advice and to which place he liad directed his letters to her until September, 1878, only two months before the institution of his suit for divorce.

With this knowledge he designedly omitted to inform his own attorney of the place where she was sojourning, and for the same purpose he refused to give correct information to the attorney of the absentee. The evidence shows conclusively that his wife had the one great and constant desire to settle down and live with him. as Ms wife.

His letters to her show that in her letters she was constantly and persistently pressing and urging him to make the necessary arrangements to that end — and he would invariably detail numerous reasons for an indefinite postponement of the project of their reunion. Avowedly he had no complaint to make of her conduct or of her character, for he said of her to one or two of Ms few intimate friends that she was “ a nice little woman.”

But he evidently regretted Ms marriage with her, and the study of his life'was to devise a plan to forsake and abandon her. His object, in the suit for separation, was to make sure, in Ms own language, that she would get none of his property.

Our reference to these facts is not with a view to revise the judgment of separation on its merits, but merely to define his animus in practicing the deceit which he used towards the attorney of the absentee.

Had he informed the latter of the exact locality of his wife as he knew full well, the attorney would at once have corresponded with her and his whole plan would thus have been thwarted and defeated. We do not mean to exonerate the attorney of his neglect in not continuing his researches for the place where the wife could be reached. But we ' do hold, under the evidence, that the information given him by Bryant, that his wife was somewhere in Arkansas, he did not know where, was the determining reason of the attorney’s supineness in the premises.

Under the textual provisions of our law “ a definitive judgment will be annulled in all cases where it appears that it has been obtained through fraud or other ill practices on the part of the party in whose favor it has been rendered.” C. P. Art. 607.

Marriage is a contract highly favored by our laws, with which it has been wisely shielded by provisions which cannot warrant or sanction attacks of a fraudulent character on an institution which is the very basis of society and of all well regulated governments.

Tlie dissolution of marriage is not tolerated for trivial causes, and a fortiori by offensive and fraudulent practices.

It may be said that these principles are of universal jurisprudence, hence it is that courts have never hesitated to reprobate in unqualified terms and to formally annul all judgments of divorce which have been obtained by means of deceit and fraud. Adams vs. Adams, 51 N. H. 388; Bishop on Marriage and Divorce, sections 697, 699, 700, and authorities therein quoted.

In the case at bar the evidence is conclusive that fraud and deceit were practiced on the court which rendered the judgment, which could not have been obtained without the intentional concealment by the husband of the locality where his wife was then sojourning.

Defendant has pleaded the prescription of one year, but he has apparently abandoned that defense as Ms counsel have not mentioned it either in the oral argument or in their brief. It is absolutely groundless. The first knowledge of the judgment was obtained by plaintiff in , October, 1882, and her present suit was instituted in January following.

Defendant’s objection to the letters of Bryant, as evidence, on the ground that they were confidential communications between husband and wife, is met by the consideration that the bonds of matrimony have been severed by the death of Bryant, and by his own theory that they had ceased to be husband and wife since the judgment of divorce had been final. We gave no consideration to the statement of plaintiff touching the contents of lost letters.

An exhaustive consideration of the issues in the case, of the legal evidence in the record, and of the law bearing on the same, has satisfied us that the district judge had done impartial justice between the parties.

Judgment affirmed.

CONCURRING OPINION.

Manning, J.

If five words be omitted from the record of this case, the judgment must inevitably be for the defendant. They are — “he did not know where ” — and occur in the testimony of the attorney for the absent wife in the divorce suit. They are the sole foundation in support of the charge of fraud and ill-practice on Bryant’s part in that suit. The proceedings in that suit were exceptionally regular and in strict conformity to the requirements of our practice, and I have therefore hesitated before giving my concurrence in the decree of the Court.

The declaration of Bryant, in answer to the question of the attorney appointed to defend his absent wife, from whom he was seeking a divorce, that he did not know where she was, when he did know, would not be to my mind sufficient of itself, and without any other circumstance, to turn the scale in ordinary suits. But in the interest of public order I recognize that suits for divorce against absent spouses, who have only technical and not actual notice of the existence of the suit, should be confined to the strictest rules, and that the rights of such absent defendants should be jealously guarded.

I thereto! e concur in the opinion and decree.


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    No. 1118.
    J. E. McGuire, Tax Collector, vs. V. F. Vogh.
    Where there is denial of any assessment, or other issue made of the legality oí a tax, this Court has jurisdiction.
    While suits for the collection of taxes upon property are prohibited, the prohibition does not apply to the collection of licenses which may be prosecuted by rule or motion, as provided in the legislative act, and in other ways.
    PPEAL from the Pifth District Court, Parish of Ouachita. Biehwrdson, J.

      Talbot Stillman and T. O. Benton for Plaintiff and Appellee.

      Robt. Ray for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

This a proceeding by rule to enforce the payment of a license-tax of fifty dollars upon the defendant’s occupation as livery stable keeper, alleged to be due the State.

Exception was made 1. that the Constitution prohibits the bringing' of suits for the collection of taxes, and therefore the act of the legislature which authorizes proceeding by rule is unconstitutional and null; 2. that the defendant has not been assessed for this license, and it has not been demanded of him; 3. that it is impossible for him to say or to know what his profits for the year 1884 will be until the year has closed.

The legality of the tax is thus brought in contestation, for if assessment be essential, the want of it would affect the legality of the tax; and as the license is graduated, if its amount depends upon the ascertainment of the profits for that year, the imposition of a license upon profits not realized and therefore not ascertained would be illegal.

The revenue law for licenses requires that for the purpose of calculating the amount of the license, the business of the previous year as also the condition and results of business of the current year shall be considered, Acts 1880, p. 151, and therefore it is not legally needful to know what are the profits of the current year. As the licenses are collectible on the 2d. of January Ibid. p. 143, and the annual receipts, sales, etc. which are the basis of the licenses and whicli determine the amount of them, are those of the year for which the license is granted, Ibid. p. 191 sec. 24, it is not very clear how the amount of a license can be ascertained at the beginning of a year, which is to be based upon the sales that are to be made during that year. Such however is the law, and it amounts to this practically that for 1884 the license will be graduated by the sales of 1883.

An assessment of a license tax is not required to be made by the officer, but it is the duty of him upon whom the law imposes the license to furnish a statement of his annual receipts as a basis for the graduation of it, and to apply for and obtain it.

We held in Mayor of Alexandria v. Heyman, 35 Ann. 301 and same plaintiff v. Williams, Ibid. 329, that suits for collection of taxes upon property were prohibited by the Constitution. This prohibition does not apply to the collection of licenses, and for an obvious reason. The mode of, or machinery for, collecting taxes upon property is by the sale of it, if after twenty days’ notice payment is not made. A license could not be collected by the sale of an occupation, and it is upon an occupation that the license is imposed. For that reason doubtless a rule is authorized to be taken on motion against the party who has not obtained Ms license to shew cause why he shall not stop his business, Acts 1880, p. 152, and we see no reason why the rule should not also embrace the collection of the license, although it is not prescribed as the mode of collecting licenses, nor is it the only machinery that can be used.

The judgment was for only twenty dollars, the lower court thinking that grade of license the appropriate amount under the proof, or rather under the want of proof. The defendant appealed. There is no answer to the appeal — no prayer for the increase of the judgment, and we cannot therefore disturb it in the interest of the appellee.

Judgment affirmed.


author: Fknner, J.

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    No. 1114.
    John Chaffe, Adm’r, vs. W. W. Farmer.
    The issues arising under a provisional account filed by a former administrator, and the oppositions thereto are not identical with those presented by a suit for a final account broughv against the former administrator, after his removal, hy his successor in office. Even if they -were identical, the former proceeding -would only furnish ground for a plea of dens in the latter suit, which could not be set up except in limine.

      'When an administrator has been removed, he owes to his successor in office an account of all funds and property which he had received for account of the succession. Tn an insolvent succession, he cannot in such account claim credit for dohts of the succession paid bv him on his own responsibility and without judicial order or authority. He was not vested with power to rank the creditors and distribute the succession funds. Such ranking and distribution can only be made by the court, after hearing to all the creditors upon proceedings according to law. He must pay over to the new administrator the funds received by him, for distribution according to law. And it is only upon such proceedings of distribution that lie can assert his claim, contradictorily with all creditors, for reimbursement of the sums paid out by him in the extinguishment of succession debts, to the extent that the succession has been benefited by such payments.
    APPEAL from the Fifth District Court, Parish of Ouachita. Dinltgrame, judge ad hoc.

      O. J. Boatner aud M. J. Liddell for Plaintiff and Appellee.

      Talbot Btübncm. and F. Garrett for Defendant and Appellant.
   The opinion of the Court was delivered by

Fknner, J.

W. W. Parmer, the original administrator of the succession of Charles H. Morrison, was removed from his said office by final judgment of this Court in June, 1882. Thereafter, John Chaffe was duly appointed and confirmed as administrator of said succession. On January 15, 1883, he instituted the present suit against Parmer and, upon appropriate allegations, prayed that he be cited to appear and render a full and final account of his administration and after trial for judgment against him for whatever amount might be found due by him to the succession of Morrison.

On February 2, 1883, defendant joined issue by answer of general denial. Shortly afterwards he died. His testamentary executor, W. A. Collins, subsequently filed appearance as defendant, and on October 2, 1883, he filed an amended answer accompanied by a final account of Parmer’s administration, which he prayed might bo filed, and “ that after proper proceedings and due hearing, the said account be fully homologated by final judgment in the premises.”

The case was then set for trial on the 9th of October, but, owing to illness of defendant’s cottfisel, was continued.

At the February term of 1884, the defendant, after having answered to the merits, after having- filed Ms final account, and after having even actively prayed for a final judgment homologating it, presented the following plea to the jurisdiction of the court:

“ W. A. Collins, testamentary executor of the estate of W. W. Farmer, deceased, respectfully shows: That this Honorable Court is without jurisdiction of this cause j that the succession of C. H. Morrson, so far as W. W. Farmer’s administration thereof is concerned, has by operation of law, the Constitution and orders oí this court, been transferred to the parish of Union, where the provisional account of W. W. Farmer and his administrative acts and doings are to he decided on and heard; that the issues of this cause are a necessary part thereof and depend thereon. Appearer annexes all the orders and decrees relating hereto, which are shown by the minutes of court as pertaining hereto, and makes them a part thereof.”

lieference to the orders and decrees mentioned exhibits the following facts: In the succession of Morrison, Farmer, prior to his removal, had filed a provisional account of his administration, to which sundry creditors had filed oppositions and to which, after Farmer’s removal, Chaffe, administrator, also filed an opposition.

The issues arising on this provisional account aád the oppositions thereto, had, on October 11,1882, been ordered to bo transferred to the District Court of Union Parish, on account of recusation of the judge of Ouachita, inability to find a qualified judge ad hoe, and failure of the judge of an adjoining district called to Ouachita to try the case, as provided in Act 40 of I860. This order of transfer was made on the motion of Farmer. No actual transfer of the record took place, and this is shown to have been in consequence of agreement to that effect between Farmer and the counsel of Chaffe, administrator, both of whom preferred to avoid the trouble of going to Union parish and to have the issues between them adjusted in Ouachita if a qualified judge could be found, as is apparent from the proceedings in the instant case.

But leaving these things aside, it is clear that the issue presented on a provisional account, filed by Farmer while administrator, is not identical with that arising in an action against him, after his removal, by a succeeding administrator for a final account.

' It is said, however, that Chaffe, administrator, engrafted the latter action upon his opposition to the provisional account. A reference to that opposition establishes the contrary; for it concludes with the words “reserving to this opponent the right to sue said Fanner for a final account and settlement thereof.” Thus the right to bring the present suit not only was not confused in. that proceeding, but was expressly excepted and reserved therefrom.

Even if it were admitted, however, that the relief demanded by Chaffe, ahministrator, in his opposition, was identical with that sought in this action, we are clear that the fact would give rise to nothing but a question of Us pendens of which defendant could only have availed himself by pleading it m limine litis. Tins suit is brought before a court intrinsically competent to try it both rations materia) and rations per-sonarnm. Indeed, if the suit could be brought at all, it could not be brought in any other tribunal, because it is that of defendant’s personal and former official domicile. Although the district judge recused himself, a judge ad hoe, to whose qualifications no objection is made, was appointed under the provisions of Act ,40 of 1880. There is no possible obstacle to his proceeding with the case, except the objection that a case involving tlife same issues between the same parties is pending-undecided in theDistrict Court of UnionParish. This is Us pendens and nothing more. It is of no consequence whether the suit originated in Union parish, or was transferred there. Its pendency is the only pertinent fact. If the parties are willing to stay or ignore that controversy, and to hav^e their rights adjusted in a new suit before a different court, they have a perfect right to do so. They have, in the eye of the law, irrevocably consented to do so — plaintiff by bringing'his suit, defendant by joining issue.

It is clear that the exception is unfounded, a mere after-thought conceived in the desire to delay the course of justice, and was properly overruled.

ON THE MERITS.

The account filed by the defendant shows that Parmer had received, in his capacity of administrator of Morrison’s succession, in cash and bonds, the sum of fifty-seven thousand four hundred and sixty dollars and seventy-six cents ($57,460 76).

Against this, he sets up credits of various kinds, aggregating an amount far exceeding the sum received.

These credits fall within various categories.

1. The judge ad hoe allowed credit as claimed for expenses of administration, such as taxes, funeral charges, clerk’s and sheriff’s costs, expenses of sale, etc., amounting to $2679 16. He also allowed credit for certain bonds which had been returned to Chaffe, administrator, to the amount of $9679 54, and rejected all the other credits claimed, giving judgment in favor of plaintiff for $45,101 46, with five per cent: interest from judicial demand.

2. A large portion of the remaining credits claimed consists of payments made by Parmer to various creditors of the succession, upon his own responsibility and without any order or authority of court. These credits were disallowed on the grounds that the succession was insolvent; that its funds were the common pledge of its creditors and were bound to be distributed among them in the mode prescribed by law, according to their respective legal righj® thereon, as judicially ascertained after due hearing in regular course of proceeding; that Farmer had no right to settle the rank of creditors and to make an exira-judicial distribution of the succession funds by paying particular debts; and that his right to claim reimbúisemenit for payments so made to the extent that the succession has been benefited thereby, cannot be asserted in this suit, to which the creditors are not parties; but can only be set up contradictorily with those creditors when the administrator shall file his account and tableau of distribution.

The correctness of these grounds can hardly admit of dispute. If Farmer were still administrator, and this were his account rendered to the creditors in the succession proceeding, the propriety of the payments made by him, the rank of the creditors whose debts he has paid, and the extent to which such payments had extinguished debts, which, but for the payment, would have been entitled to share in the distribution, would have been questions properly arising and susceptible of determination; and to that extent he would have been entitled to credit.

But Farmer has ceased to be administrator. He has lost the capacity to make a distribution of the succession funds or to take proceedings for that purpose. The relations between him and the creditors of the succession have been sundered. A new administrator has been appointed, to whom alone Farmer is required to account. Farmer cannot set up these credits as against him, because his right to them cannot be settled contradictorily with him in absence of the creditors who are not, and cannot be made, parties to this suit.

Farmer’s having disbursed the funds of the succession without authority of law, can furnish no lawful reason for not paying to the new administrator the amount of those funds which came into his hands.

They can only reach the creditors through proceedings for account and distribution to be taken by the new administrator. How can he distribute them until they are paid into Ms hands'? When so paid, Farmer, in right of the creditors whose debts he has settled, and any other creditor, may require account and distribution, and if his just claims are not then allowed he may then, contradictorily with all other creditors, assort and vindicate his rights. But he cannot do it in this proceeding.

If it be a hard case that he should be required to pay over money, a large part of which he may ultimately be entitled to recover back, it is the consequence of Ms own improvident and unlawful conduct. Tlie law lias very carefully prescribed rules for tlie administration of estates and for tlie conduct of adjninistrators. When sucli officers neglect and violate these rules, they have no just cause of complaint if they bring trouble upon their own heads.

It is a very clear case that the creditors of this succession had and retain the right to have the funds of this succession distributed according to law. No one is authorized to make such distribution except the administrator. He must receive the funds before he can distribute, them. Unless Parmer is made to pay them into his hands, they can never be distributed. JErgo defendant must pay over.

These conclusions flow so logically and necessarily from the rules of law governing the administration of successions, that they scarcely require the support of judicial, authority which does not seem to have been brought to bear very directly upon them.

Nevertheless, the fundamental principles that the removed administrator can no longer make a distribution; that he owes his account, not directly to the creditors, but to liis successor in office, and that the latter is the party to whom the creditors must look and with whom they must deal — were long since settled by this Court, Collins vs. Hollier, 13 Ann. 585.

2. This disposes of most of the credits claimed, including that for $7333 33, amount paid by Fanner as the purchase price of property, the sale of which was annulled by this Court in the case of Chaffe vs. Farmer, 34 Ann. 1017. Although that price was undoubtedly applied to payment of succession debts, yet, in that very case, it was held that Farmer must look for reimbursement to proceedings for the distribution of the price of the property when sold; and he must still be referred to that remedy.

We consider this item fully covered by the terms of the opposition, as- well as by the decree above referred to. Under no circumstances could this claim be paid from the funds included in this account. It must look for satisfaction to the proceeds of sale of the property when distributed, as held in the case referred to.

3. There are various other credits claimed which are so untenable that we are at a loss how to treat them.

Thus defendant claims credits of nearly $25,000 for proceeds of crops raised on plantations belonging to the succession and which he claims were shipped to Chaffe’s commission house in New Orleans, and proceeds of which are held by him or his house. We cannot see what this has to do with the present account. If the cotton belonged to the succession, the account does not charge Farmer with its value. How then sliduld it be credited with its proceeds H Chaffe, commission merchant, is not Chaffe, administrator. If the succession has claims against Chaffe, as an individual, this is not the place to enforce them.

Similar remarks apply to other credits claimed to stand in the name of Farmer, for account of the succession, on the books of Chaffe’s commission house in New Orleans.

4. The claim of fees for services rendered by Farmer, as attorney, to himself as administrator, it is well settled cannot be allowed.

5. We find it impossible to reverse the clear ruling of the district judge rejecting the claim for commissions.

Certain amendments are claimed by- appellee and other complaints are made by appellant; but after careful consideration we are satisfied the judgment appealed from has done substantial justice between the parties.

Both parties object to an absurd provision in the judgment, by which the judge ad hoe taxed himself a fee of |150 for his labor in hearing the cause. Of course the allowance is unwarranted by law and may be stricken from the judgment without affecting the question of costs of appeal.

It is, therefore, ordered that the tax of one hundred and fifty dollars as compensation for the lawyer selected to try this case,” be stricken from the judgment and that, with this change, the judgment appealed from be lion-affirmed.


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    No. 1104.
    C. H. Moore, Tutor, vs. John C. Stancel.
    The admission of a husband that the purchase of property made iu the name of his wife, is for her separate benefit, that the price was paid by her out of her individual funds, concludes Mm, though it may not his forced heirs or creditors.
    Property acquired by the husband during the community, with his own funds, without stating in the act of purchase that the same is made for his personal advantage and that . the same is paid out of his personal means, falls into the community, the husband remaining a creditor of the same for the amount invested.
    Judgment cannot he rendered for a claim, in the absence of issue joined.
    APPEAL from the Fifth District Court, Parish of Richland. . Mehardson, J.

      H. P. Wells for Plaintiffs and Appellants.

      T. O. Benton, contra.

   The opinion of the Court was delivered by

Bermudez, C. J.

This suit was originally brought by a tutor for account of his ward, as sole heir of Ms mother. Its object is to recover from her surviving second husband, who is the minor’s step-father, property claimed as her paraphernal estate; also, her interest in three other pieces averred to be community property;- besides, the fruits of both, and finally, a partition of the common assets.

On becoming of age, shortly after suit, the ward entered appearance and formally made himself the party plaintiff.

In the petition which he filed to that end, he reiterated the averments and prayers of previous petitions and sought a money judgment for several amounts aggregating some $8000, and stated to be due his mother by her surviving husband.

The defense is a denial of all the advanced pretensions, an averment that all the property belongs to the husband, as having been acquired out of his separate funds; that if the first piece be declared to be the paraphernal property of the wife, and the other pieces, community propei ty, they are respectively chargeable with various amounts expended in different ways, which it is unnecessary to mention, and that judgment should be accordingly rendered in his.favor.

Before judgment, the surviving husband, made defendant, having died, his executor made himself a party in his place.

There was judgment recognizing that the property claimed as para-phernal and known as the "Home" place, is such; allowing an annual rent thereof at $300 from July, J 879, the death of the wife; declaring the other pieces of property known as the Coke and Coleman places, and the undivided half of the Sicily Island property, as community property; decreeing a partition thereof and allowing to defendant $1211 93 with legal interest from August 20, 1883.

From this judgment both parties obtained an appeal, which was perfected only by the plaintiff. The defendant, however, has, in this Court, prayed for a reversal or amendment of the judgment, so as to recover as claimed in his answer and reconventional demand.

MERITS.

We will proceed to consider the merits of this controversy.

It is proper to note, at the threshold, that John Jenkins, who is the plaintiff, sues as the only issue of his mother by her first marriage. In fact, there was no issue from her subsequent marriage with J. C. Staneel, who, himself, left no forced heir.

So that, the Act of 1884, now Article 915, R. C. C., which allows to the survivor, the usufruct of the share of the deceased spouse in the community property, is no factor and finds no application in this controversy, and consequently, plaintiff is entitled to claim and recover, on proof, the interest of his mother in that community.

The material facts gathered from the voluminous record are the following :

On October 3, 1870, the real estate claimed as the paraphernal property of the plaintiff’s mother and which is known as the “Some” place, was acquired by her with the authority of her husband. The act declares, that the price $3500 is paid by her out of moneys claimed by her as her paraphernal funds, under her separate control and administration, recently inherited by her in Alabama, and of which her husband never had the control. . The act is signed by her and by her husband.

The three other pieces of property already indicated by the names given them, were acquired by the husband during the marriage. The acts do not set forth that the purchases are made by the husband with the intention of making the property exclusively his and that the price is paid out of his individual funds.

There is evidence that prior to his leaving Alabama, where he once resided, the defendant owned' considerable property which was sold subsequent to his removal, in 1869, to Louisiana, to which he had, the year previous, sent his wife.

It is not fully established how he disposed of all his individual funds, but it is sufficiently shown that part of the same was actually used for the purchase of some of the real estate claimed as comprising the mass of the .community and that the lower court gave him credit for the amount which it found had been thus used. •

It also appears that Mrs.-Stancel owned some property in Alabama, that after her removal to Louisiana, she returned to her former home and came back, bringing with her, in currency and coin, upwards of $3400.

The evidence which is, in that respect, circumstantial and scattering, shows that, at different times, her husband has received for her account, various amounts said to aggregate some six thousand dollars, both in Alabama and in this State.

It is also shown that the wife and her husband had as their agent, W. Gr. Little, of Alabama.

The record also discloses other facts which are not deemed material for the determination of this suit.

The only questions presented are the following :

1. Whether the “Rome” place is the paraphernal property of Mrs. Stancel?

2. Whether the other pieces of real estate are community property or the husband’s individual property ?

0. Whether the plaintiff is entitled to recover the amounts alleged to have been received by the husband for account of his wife ?

4. What is the amount to which the defendant is entitled, as as much invested and disbursed, under his answer and reconventional demand?

We will proceed to examine those questions in their respective order.

I.

The tenor of the act of sale of the “Rome ” place to Mrs. Stancel, explicitly shows that the purchase was made in her name, with her funds inherited from her parents in Alabama, and for her separate advantage. The correctness of those facts is indelibly admitted by the husband who authorized her in the premises and signed the deed in person.

This acknowledgment was conclusive upon him, though it would not be on its face against his creditors or his forced heirs, had he left any, which he did not. 35 Ann. 33; 34 Ann. 375; 33 Ann. 688; 31 Ann. 124; 30 Ann. 1036; 21 Ann. 343; 16 Ann. 271; 9 Ann. 242, etc.

If it be true that defendant could be relieved from the effect of such admission, this could only be in a proper case, on a proper averment and proof, by setting up and showing error, fraud, violence, or some vitiating defense, which was not done.

The only attempt made was to show by a letter of Mrs. Stancel to her brother and agent that she acknowledged having asked one thousand dollars of her husband’s money to make the purchase and of which she directed the return.

Objection was made to the introduction of this letter, but it was overruled and a bill reserved. The letter was received, but the district judge attached no importance or weight to it.

The objection went to the effect and not to the admissibility of this written evidence, it could prove and proved nothing to justify the claim of the defendant to the ownership of the property.

There is no evidence to support the statement in the letter, which, if it proves anything in the sense of ownership, establishes that the property was purchased by Mrs. Stancel for her separate benefit.

If it could prove an indebtedness by the wife in favor of the husband, the presumption is, under the evidence, that itw'as settled subsequently, in 1875, when a final settlement took place between the defendant and Little, as the agent of both, his wife and himself.

But however important the acknowledgment by the wife may have been, the letter is not a counter letter. It does not purport to be an admission on her part that though the title be in her name the property is not hers but belongs to her husband. At best, it would amount to nothing more than the evidence of an indebtedness. The investment of the latter’s money, without Iris knowledge, without her consent, without a recital to that end in the act which would have put the property at his risk, could, under no circumstance, make, the husband sole owner or even co.-proprietor of it.

If proof were necessary, as to the husband, (where no forced heir or creditor exists,) it might be said that the evidence in the record shows that Mrs. Stancel, after moving to Louisiana, had funds sufficient, by a few tens, to make the purchase, so that there can be no doubt that the “Rome" place, from either aspect, was correctly decided to be the pa-raphernal property of the plaintiff’s mother.

Such being the case, title to it has vested, at her death, in her only heir, who, as such, has a right to the fruits of the same, from that time to that of delivery. '

II.

The other pieces of property were purchased during the marriage. Conceding that the price of two of them was paid in part out of the individual funds of the husband, this was not sufficient to make them his separate estate. lie should have clearly established his intention at the time by declaration in the act and mentioned the fact of the payment out of his individual assets and been ready, eventually, to establish that last fact, contradictorily with the heirs of his wife. The jurisprudence on that subject is so firmly established that a reference to all the authorities would be cumbersome. However, see 14 Ann. 618; Joffrion vs. Bordelon, Bars vs. Lynch, 7 Ann. 104; Young’s case, 5 Ann. 611, and H. D. 883 and 884, where numerous authorities are collected.

III.

The last matter to be considered is whether the plaintiff is entitled to recover the amounts claimed by him as received, by defendant, for account of his mother.

It is unnecessary to review the evidence on the subject, for the reason that the question is not presented by the pleadings.

Those amounts are not claimed in the original petition. The petitions subsequently filed, were designed to correct a description of property and to make Jenkins a party. . No importance ©an be attacked to tke circumstance tkat, in tke last proceeding, Jenkins prayed for a judgment of $8000.

Tkat petition was not permitted to be filed and not put at issue by any answer of tke defendant. Tkis was essentially necessary. C. P. 359. So tkat tke matter is not involved in tkis controversy.

The district judge, for a reason somewhat similar, declined to allow tke demand to any extent. Tke judgment rendered merely passed on matters at issue and left tkis claim unaffected, so tkat the right to assert and enforce it, if it exists, continues in tke plaintiff.

IV.

In relation to the claims and counter claims of tke defendant, we can only state that an examination of tke evidence does not enable us to say tkat tke judgment of the lower court, which allows him $1211 93, does not do him justice.

Our learned and industrious brother, the district judge, has evidently taken unusual pains, as appears from his elaborate and exhaustive opinion, to recapitulate, analyze and, as far as practicable, to reduce to form and substance, and more certainty, the almost interminable, confused, circumstantial, shapeless and unsatisfactory evidence adduced in tke case. We have patiently followed him in his extensive investigations and have carefully weighed tke criticism directed against his conclusions, and we remain convinced tkat in deciding as he has done, he lias not only applied tke whole law, but exerted his equity powers in favor of tke defendant, who lias shown no just cause of complaint and therefore should be satisfied.

Judgment affirmed.


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    No. 1105.
    John Chaffe & Sons vs. Margaret E. McIntosh et al.
    When the Supremo Court was not in session on the return clay for appeals nor for several days thereafter, in consequence of the inability of the judges to reach the seat of the court, and the court was opened by the clerk and adjourned from day to day, an appeal filed on the day the court first sits will bo in time,
    Where a community of acquets exists between husband and wife, and the husband cultivates a plantation that belongs to the wife, the debts incurred by such cultivation are the husband’s and cannot be enforced against the wife's property.
    Even though the wife has signed lien contracts in favour of a factor for supplies and advances, if the fact be that she has not the administration of her separate property, but the husband does administer it as head of the community, he alone is responsible for the supplies and advances.

      And if the debt that is contracted is put in the form of a note which is signed by the husband and wife, she will not be bound thereby.
    APPEAL from the Fifth District Court, Parish of Richland. Richardson, J.

      Wells & Williams for Plaintiffs and Appellees.

      Potts & Hudson for Defendants and Appellants.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, J.

The motion for dismissal is based on the alleged failure to file the transcript in time. The return day is Monday, June 2d. The court was not in session on that day, nor until Saturday the 7th.— this last being the earliest day the Judges could reach Monroe after holding court at New Orleans on the last day of May, as they are required to do by the Constitution. The court had been opened on the 2d. by the clerk, and was adjourned from day to day until the 7th., when we arrived and sat, and on that day the transcript was filed. It is in time.

The sole provision for this contingency is in an Act of 1870, whereby it is permitted to an appellant, if this Court is not in session on the day fixed for the return of any case, to file his record within three judicial days at the first session of the Supreme Court thereafter. Acts 1870, p. 100. Literally this merely permits him to bring Ms appeal up to the next term, which in this case would be next summer, but obviously the meaning and intent was also to permit the filing of the record within three judicial days after the Court shall be in session at that term, and thus construed, this appeal is saved.

The motion is refused.

On the Merits.

Margaret McIntosh owned three plantations, having inherited them. Her husband cultivated one of them upon which they lived. He let the others. The community of acquets existed between them, and he managed and controlled the property in the usual way in which husbands do. The Chaffes were the commission merchants or factors, through or from whom advances and supplies were obtained. In process of time a debt was created which amounted on May 16, 1877 to three thousand and eighty-six ~ dollars, and for it three notes were executed by the husband and wife, the notes each reading “I promise to pay,” and being signed by the husband and underneath his signature is that of his wife.

This suit is upon those notes and judgment is asked against each of them for the full amount.

Mrs. McIntosh denies liability. Her husband alleges that the sum claimed is in excess of his real indebtedness under any circumstances, and recites sundry shipments of produce, payments, excessive charges, etc. which not only wipe out the debt sued on, but turn the balance in his favour, and for such balance he reconvenes. His defence may be dismissed with the observation that all the transactions set out by him took place before they were closed by the execution of the notes, and that it is too late for him to reopen business, all the details of which were as well known to him then as now, and to make a statement of accounts from his standpoint which he could have done before signing the notes, if there was error in the statement presented to him by the plaintiffs. It is not pretended there was fraud or deceit practiced on him. There were charges that he willingly submitted to then, and he cannot get relief against them now. The judgment against him was for the full amount of the notes.

The wife’s defence prevailed and properly. It is settled law that the debts contracted during the marriage, when community exists, are the debts of the husband alone. Mr. McIntosh owned no property at the time of his marriage. The fruits and revenues of his wife’s property belonged to the community, of which he was the head and master, and the debts incurred in producing those revenues are the debts of him who has the power and the right to dispose of the revenues. Fluke v. Martin, 26 Ann. 279; Van Wickle v. Violet, 30 Ann. 1106; Smith v. White, 32 Ann. 1033.

It is a matter of no consequence how the plaintiffs kept their accounts —whether the name of Mrs. McIntosh was at the head of their ledger or of her husband or both. Her liability is in no manner affected by the circumstance that, while dealing with her husband, they chose to make the semblance of dealing with her. But in fact the accounts were kept in his name alone until trouble loomed, when a change was made. The attempt to bind her by procuring her signature to the notes is equally futile. As the debt was the husband’s, she could not assume it and her signature was nothing worth. Graham v. Thayer, 29 Ann. 75; Hall v. Wyche, 31 Ann. 734.

No portion of the debt sued on is for permanent improvements on the plantations, and no part thereof enured to the benefit of the wife separately or of lier separate property. The debt was created in the ordinary routine of plantation cultivation, and comprises nothing hut advances and supplies, and the various and numerous charges with which such accounts are usually swelled, which however illegal in the outset were condoned by Mr. McIntosh when he voluntarily and knowingly submitted to them by executing his note for the sum total including them.

The fact that Mrs. McIntosh signed the lien contracts for supplies does not make the cultivation of the plantation a business of hers. By signing those contracts she was simply interfering needlessly and superfluously with her husband’s business, and her act does not change her legal status. Her immunity from legal obligation is the result and consequence of certain legal principles -which our law and jurisprudence have formulated for the regulation of the business relations of spouses to each other and to the outside world, and when the plaintiffs dealt with them or either of them without advising themselves of the safeguards that the law throws around the wife and of the obligations it imposes upon the husband, when a community of property exists between them, they have themselves only to blame for stepping into pitfalls that have all along been pointed out by successive decisions of this Court.

Judgment affirmed.


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    No. 1210.
    The State of Louisiana ex rel. Jules Mestayer vs. Conrad Debaillon, Judge Twenty-fifth Judicial District.
    An order of a presiding judge recusing himself in a cause on the ground of interest, and appointing the judge of an adjoining court to try the cause, is not vacated or revoked by the fact that the successor of the said presiding judge has in the meantime been commissioned and inducted into office.
    The order of recusation, if rot void ab initio on its face, cannotbe attacked collaterally, and remains in full force until rescinded or revoked by a direct order from competent authority.
    Tinder Section 1425, Revised Statutes, a speedy trial is imperatively required in all contested elections. If the suit cannot be tried, owing to physical or legal impossibility, at the next regular term of the court, a special terra must be ordered.

      A mandamus -will lie to compel tlie judge, even if he he only appointed under a recusation of the judge of the court, to order a special term and to try the case -without unnecessary delay.
    An appeal does not lie from an order dissolving on bond an injunction in a contested election case.
    PPLICATION for Mandamus.

      Edward Simon and Breaux & Hall for the Relator.

      G. Debaillon in pro.per.

   The opinion of the Court was delivered by

Poché, J.

Relator seeks to compel the respondent judge to try a cause in which he is plaintiff, and to compel the judge to grant him a suspensive appeal from an order dissolving on bond a writ of injunction which had previously been issued at his instance in the same suit.

The record shows the following proceedings and incidents bearing-on the issues involved in the pleadings :

On the 10th of May, 1884, relator filed a suit contesting the election of P. A. Yeazie as sheriff of the parish of Iberia.

On the 21st of the same month the judge presiding over the Twenty-first Judicial District Court of Iberia, in which the suit had been filed, entered an order recusing himself on the ground of interest, and appointing respondent, a judge of an adjoining district, for the trial of the cause.

In justification of his refusal to perform the acts required of him, the respondent judge urges the following reasons:

1. That the order of Judge Fontelieu recusing himself and appointing respondent as the j udge of the case has since been vacated by the fact that his successor in office, Judge G-ates, has since been commissioned and inducted into office.

2. That a regular term of the Twenty-first Judicial District Court for the parish of Iberia haviug begun on May 12, and ended on the 24th of the same month, respondent has no legal authority to order a special term for the trial of said cause as conditionally authorized by section 1425 of the Revised Statutes of 1870; and that he has no authority to order such a term under the recusation act, being Act No. 40 of 1880.

3. That relator is not entitled to a suspensive appeal from the decree dissolving his injunction on bond, for the reason that said order cannot work an irreparable injury to the relator.

First — The whole controversy pivots on the judge’s first objection; for if he has been divested of authority to try the cause, he has no more official connection with it, and he has therefore been stripped of all control over the matters in contest.

His proposition involves two questions :

1. That Judge Gates has been- duly elected, qualified and inducted into office as the successor of Judge Fontelieu.

2. That by the mere operation of that fact, Judge Fontelieu’s order of recusation has been vacated or revoked.

On the first point, the record discloses the fact that a suit is now pending in which the election of Judge Gates is contested by the for-' mer incumbent, Judge Fontelieu; and that the former is now the appellant before this Court from an order enjoining him from qualifying as judge under the commission which was issued to him by the Governor.

The conclusion that he is now in legal possession of the office is at least premature. And as he, as well as his opponent, are not parties to this proceeding, it stands to reason that the fact cannot now be judicially ascertained or announced. We shall therefore carefully, as we must in justice, refrain from any expression of opinion as to the legal status of Judge Gates in connection with the office to which he has been commissioned.

As it cannot at this stage of the proceedings be judicially asserted that he is in the lawful possession of the office, we might be justified in abiding by the negative of the question, and to thus dispose of that reason. Bnt we think it wiser to follow the opposite course and to concede, for the sake of argument, that Judge Gates is now and has been the lawful judge of that district since the 22d of May last past.

This leads us to the consideration of the proposition asserted by respondent, that the'order of recusation has thereby been vacated, and that he has no more authority in the premises.

It is not pretended or even intimated that the order of recusation was not perfectly legal and binding at the time that it was issued. It therefore follows, and it is virtually conceded, that under its effect the respondent became vested with jurisdiction over the cause as absolutely and as exclusively as would have been the case witli a suit originating in his own court.

The jurisdiction thus acquired under and by virtue of a judicial order must attach and continue until it has been destroyed or divested by equally competent authority in a direct order, not by inference or even by collateral proceedings. No principle of law has received greater and more frequent sanction, or is more deeply imbedded in our jurisprudence, than that which forbids a collateral attack on a judgment or order of a competent tribunal, not void on its face ab initio.

The. rule has been frequently applied to orders and decrees issued ex parte. Duson, curator, vs. Dupre et al., 32 Ann. 896, and authorities therein cited.

Now, in this case it is not even alleged that the order of recusation has ever been revoked or otherwise vacated by any competent authority, not even by Judge Gates himself. It is therefore yet in full force, and under it respondent continues 'to be vested with exclusive jurisdiction over the cause, until stripped of his authority in a legal manner.

Second — The next question is, whether the relator has been legally deprived of 1ns right to a speedy trial of his contest suit.

The record does show that a regular term of the court began on the 12th and ended on the 24th of May. But it also appears that when the court adjourned the case was not yet at issue, and to this day the defendant has not yet filed his answer.

Section 1425, Revised Statutes, provides in substance that the trial of contested elections shall be proceeded with at any regular term of the court; but that if no regular term of the court is to be held within five weeks from the time of filing the petition of the contestant, a special term shall be holden on the third Monday after the day on which the election for the office contested was held.

The spirit and object of that law, as well as of the other provisions regulating the trials of contested election cases, are directed to securing speedy trial of all such cases in which the interest of the people is almost as great as that of the parties directly interested in the suit.

Respondent’s contention is that as a regular term of the court was to be held within five weeks from the day on which the petition of contest was filed, the contingency of a special term could not occur, and that relator having allowed the adjournment of the court before insisting on a trial, has lost his recourse for a special term, and he must wait for nine months for a trial under the provisions of section 4 of act 40 of 1880. A reference to that law shows that it applies to general recusation cases, and hence it cannot militate against a special law which imperatively requires a speedy trial of all contested election cases. Hence it has no bearing on the point now under discussion.

It is too plain for argument, that relator had no control over the then presiding judge of the court touching an adjournment of the term, nor could he control the defendant as to the time of filing his answer to the suit. Hence it follows that the unpropitious adjournment of the court before issue was joined in bis case cannot be attributed to his fault or to Ms laches. The bounden duty of the respondent under the law was to proceed to the court as soon as he was notified of his appointment and tó try the case if the court was yet in session. If he found the court adjourned, it was then his duty to order a special term. We hold that the regular term to be held in five weeks, referred to in section 1425, Revised Statutes, is a term at which the case could be tried, and not a term at which it was a physical as well as a legal impossibility to secure a trial. Bearing in mind that the great and primary object of that legislation is to secure a speedy trial of that class of cases, we hold that the term which began on the 12th of May was not such a regular term as the law contemplates. Hence, the necessity for a special term did occur, and it should have been ordered. But as it was not ordered, and a literal compliance with the requirements of the statute has thus been rendered impossible, can the relator be thereby defeated of his rights to, and the spirit of the law thwarted in its imperative requirement of a speedy trial of the cause ? Evidently not. Hence we conclude that a special term should be ordered, and we shall so decree.

Third — As to the other relief which relator craves at our hands, we think that he is not entitled to the same. If his opponent, under the effect of the dissolution of the injunction which was intended to restrain his induction into the office of Sheriff, has proceeded to qualify and to assume the functions of the office, relator will have his recourse against him under the bond of dissolution; if he has not qualified, and the former incumbent has continued in office, the defendant in injunction will be liable to relator for all damages and for the emoluments of which the relator will have been deprived in the meantime. Hence, the injury which he may sustain is not irreparable, therefore he is not entitled to an appeal. State ex rel Pflug vs. Judge, 35 Ann. 765.

,On this branch of the case the mandamus must therefore be declined.

It is therefore ordered that the alternative writ of mandamus herein issued, ordering the Judge of the Twenty-fifth Judicial District to order a special term of the Twenty-first Judicial District Court in and for the parish of Iberia, for the trial of the case of Jules Mestayer vs. P. A. Veazie, be made peremptory; aad it is further ordered that Conrad Debaillon, judge of said Twenty-fifth Judicial District, do order such special term at the earliest date which may be consistent with his duties in his own district, and that at the time thus fixed he proceed to the trial of said cause according to law; and that he pay all costs of these proceedings.


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    No. 1221.
    Theodore Fontelieu vs. F. S. Gates.
    An appeal does not lie from an order granting an injunction unless fclie injury complainod of is irreparable.
    PPEAL from the Twenty-first District Court, Parish, of Iberia. judge ad hoe.

      Edward Simon and Breaux & Hall for Plaintiff and Appellee.

      Fred. Gates, pro. per.

   The opinion of the Court was delivered by

Manning, J.

This ease comes up on an intermediate issue presented

in a contest for a judgeship. The two parties were rival candidates for that office in the Iberia-St. Martin district. The plaintiff’s allegation is that the returning officer had fraudulently returned the defendant as elected, and after setting forth in extenso the grounds in support o1 that allegation, prays that he, the plaintiff, be adjudged to have been elected. His petition was filed May 16th., the election having been held on the 22d. of the previous month. Fontelieu had been judge of that district the preceding term. He recused himself and appointed a judge of an adjoining district to try the case.

On May 28th. the plaintiff filed a supplemental petition, alleging that the Governor had in the interim commissioned Gates, and prayed an injunction restraining and forbidding him from exercising the functions of the judgeship. The judge ad hoe granted the injunction the same day, and on June 7th. Gates obtained a suspensive appeal therefrom. That is the appeal before us.

Fontelieu moves to dismiss on the ground that no appeal lies from an order granting an injunction.

That is the settled rule; the only qualification of it being in those cases where the injury cannot be repaired in damages. Now so far as the defendant is personally concerned, any injury he may sustain is reparable, and therefore his appeal falls within the rule. State ex rel. Doullert v. Judge, 29 Ann. 869.

But the defendant urges that we shall consider and apply another legal principle, which he maintains is equally well-settled, viz that a judge cannot be enjoined from exercising the functions of his office.

We have no occasion now to pronounce an opinion upon that'question. The mode by which this case has reached us is by appeal, and an appeal does not lie from such order as is therein complained of. The appeal therefore cannot be heard.

Appeal dismissed.


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    No. 1216.
    Mrs. Laura Mallard, widow, et al. vs. Thomas C. Anderson et al.
    Under Section 2387 of tlie Revised Statutes of the United States, the entry of lands authorized to he made by the corporate authorities of towns “in trust for the several use and benefit of the occupants thereof,” is made for the benefit of such occupants, and the title received is, in effect, the title of the occupants. Judicial and special mortgages granted by said occupants prior to the discovery of their defective title attach to the lands immediately on'the entry. Where proceedings are in progress to enforce such mortgages, transfer hy the occupant to a third person is unlawful under Act ÜNo. 3 of 1878, and cannot sustain a conveyance hy the corporate authorities to such transferreo. whose title will he annulled at suit of the occupant’s mortgage creditors.
    APPEAL from the Twenty-fifth District Court, Parish of St. Landry. Debaillon, J.

      K. Baillio for Plaintiffs and Appellees.

      Perrodin & DuRoy for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiffs are creditors of Thomas C. Anderson by judgment rendered in 1875 and recorded in this parish in 1877. In execution of this judgment they seised a certain immovable, designated as Lot No. 5 in the town of Washington, and on failure of the offering for cash, the same was adjudicated, on twelve months’ credit, to Anderson, the judgment debtor, for $3850, who furnished his twelve months’ bond importing special mortgage and vendor’s privilege on the property. Various attempts to enforce this bond were thwarted by successive injunctions until, in February, 1882, plaintiffs sued out their last fi.fa., under which the property was again seized. New injunctions were taken out, which were in due course dissolved. *

The lot in controversy had been held by Anderson under title supposed to be valid, dating back to 1849.

In the year 1882, however, it was discovered that a certain portion of the town of Washington, including this lot, had never been validly severed from the public domain and still belonged to the United States.

Such a contingency seems to have been not without precedent, and Congress had provided means for the protection of occupants of such property and the perfection of their titles by sections 2387 and 2391 of the United States Revised Statutes, which are as follows:

“Sec. 2387. Whenever any portion of the public lands have been or may be settled upon and occupied as a town site, not subject to entry under the agricultural preemption laws, it is lawful, in case such town be incorporated, for the corporate authorities thereof, and if not incorporated, for the judge of the county court for the county in which such town is situated, to enter at the proper land office, and at the minimum price, the land so settled and occupied in trust for the several use and benefit of the occupants thereof, according to their respective interests; the execution of which trust, as to the disposal of the lots in such town and the proceeds of the sales thereof, to be conducted under such regulations as may be prescribed by the legislative authority of the State or territory iii which the same may be situated.” '

Section 2391, almost immediately following, reads thus:

“Any acts of the trustees not made in conformity to the regulations alluded to in section 2387, shall be void.”

Acting in virtue of this statute, the corporate authorities of the town of Washington, through their mayor, William Curley, causea the said property to be entered at the proper land office and at the minimmn price, “for the several use and benefit of the occupants thereof,” and on the 20th day of April, 1883, received a certificate or receipt evidencing entry and title. It was found that the proportion of cost due by lot No. 5 was fifteen dollars and, on payment of this sum, the mayor stood ready to convey the title to the occupant thereof.

The vision of an opportunity to slip this property out of the hands of his pursuing creditors immediately presented itself to Anderson, and on April 23, 1883, he executed an act of sale of the property to Frank G-. Ulrick for two thousand dollars, payable entirely in notes falling due respectively on January 1st, 1884, and January 1st, 1885. Armed with this act of sale, Ulrick demanded title from Curley, mayor, who executed the same on paymant of the fifteen dollars above alluded to.

On the discovery of these proceedings, plaintiffs instituted the present action, the objects of which are:

1. To have the conveyances from Anderson to Ulrick and from the mayor to Ulrick decreed to be null.

2. To have the registry of said sales and resultant mortgages erased from the conveyance and mortgage books of the parish.

3. To compel the mayor to receive the sum due from Anderson and . thereafter to execute a transfer in favor of their debtor Anderson.

From a judgment in favor of plaintiffs, as prayed for, Ulrick alone has appealed.

We are perfectly clear upon tlie following propositions:

1. That under the pro^visions of section 2387 United States Revised Statutes, the entry of this land by the mayor, Curley, was made as the trustee and for the exclusive benefit of Anderson, that he held the title in trust for Anderson, and that his title was, in effect, the title of Anderson, subject to the duty of paying Ms ratable portion of the cost of entry.

From this it follows that, conceding the nullity of Anderson’s prior title, the property fell at once under the judicial mortgage of plaintiffs, and also, by the effect of Art. 3304 Rev. C. C., under their special mortgage resulting from the twelve months’ bond.

In Robertson vs. Wood, 5 Ann. 197, it was held that the receipt of a United States Receiver for price of public lands vested such title as to subject the land to judicial mortgages recorded against the holder, although the legal title remained in the United States until the patent was issued, and the holder’s title was equitable merely. A similar equitable title was vested in Anderson here, to be perfected into a legal title by conveyance from his trustee, Curley, mayor.

2. That considering the pendency of proceedings to execute the foregoing mortgages, the transfer by Anderson to Ulrich was unlawful and without effect as against plaintiffs, under the exin-ess provisions of Act No. 3 of 1878, amending Art. 2453 Rev. C. C., and that although not an absolute nullity, it was nuli as regards them. Copes vs. Guilbeau, 34 Ann. 1032.

3. That Curley’s conveyance to Ulrich, except so far as authorized by the aforesaid transfer from Anderson to Ulrick, was utterly unlawful and void: and the latter being itself avoided, the former necessarily falls with. it.

The titles of Ulrich, upon which alone his rights rest, being thus destroyed, Ms interest in this controversy vanishes; and he being the only appellant, we have no concern with the propriety of the other relief awarded to plaintiffs.

Judgment affirmed.