author: Nioholls, O. J.

text:
    No. 13,756.
    In re Corbera & Klein Furniture Company, Limited, in Liquidation.
    Syllabus.
    It is too iatc to apply for aad obtain an appeal in the matter of the liquidaron of a corporation after the final account of the liquidators has been homologated, the funds d siributed and the liquidators discharged, through a ihoUou made after the term tfuung which the judgment was obtained has expired.
    Proper parties, duly cited, must be before the appellate court.
    APPEAL from the Oivil District Court, Parish of Orleans — Them'd, J.

      ’William S. Parherson and Theodore Cotonio for Liquidators, Defendants, Appellees.

      D. M. Bholars for Opponents, Appellants.
   On Motion to Dismiss the Appeal.

The opinion of the court was delivered by

Nioholls, O. J.

The liquidators of the Oorbera & Klein Furniture Company, Limited, having filed their final account as such, oppositions were filed to the same; among others, one on the 3rd of October, 1899, by D. M. & Allan Sholars, attorneys, representing a number of creditors. On the 30th of March, 1900^ the district court rendered a judgment amending the account in a number of respects and decreeing that in other respects the oppositions 'be dismissed, and that, as amended, the account be approved and homologated and the funds distributed in accordance therewith.

On July 3rd, 1900, by judgment of the court, the liquidators were discharged as such and their bond cancelled.

On the 17th of October, thé opposition filed by the Messrs. Sholars, which had been fixed for trial notwithstanding the judgments above mentioned, was called up, whereupon Mr. Ootonid, who had represented the former liquidators, 'objected to any proceedings thereon, that there was no issue before the court, that no notice had been given to them upon which the court required information, the case having been closed by final judgment. The court overruled the objection and permitted evidence to be heard as to whether or not the Messrs. Sholars had been notified legally by posting of the fixing for trial of the account and the oppositions thereto.

The Messrs. Sholars then offered evidence in support of their opposition, to which counsel of the former liquidators objected on the ground that it was too late and the case should not be reopened. The objection was sustained, and on the 20th of November, 1900, judgment was signed dismissing these oppositions as of non-suit.

On the 30th of November, 1900, the Messrs. Sholars, suggesting that the parties whom they represented were aggrieved by the judgments rendered on the 30th of March, 1900, and on the 20th of November, 1900, and that the two judgments were contrary to law, it was ordered that a devolutive appeal be granted them, returnable to the Supreme Court on the first Monday of December, 1900, on opponents giving bond in the sum of one hundred dollars, conditioned according to law.

On December 14th, 1900, appellants obtained an extension of the return day to the third Monday of December, 1900, and on the 17th of December they obtained a further extension of eight days. The transcript of appeal was filed on the 24th of December, 1900.

On December 7th, 1900, appellants filed a bond of appeal.

On the 5th of January, 1901, a motion to dismiss the appeal wa3 filed by attorneys representing themselves as attorneys representing the ex-liquidators of the corporation.

Íhe motion to dismiss was as follows:

1. That the appeal herein taken was granted by the lower court upon motion of said D. M. & Allan Sholars, which motion was filed on November 30th, 1900 (transcript, p. 191). The return day for the said appeal was fixed for the first Monday in December, 1900, being the next return day to this court. That on said December 1st no transcript of appeal had been filed in this court; but on December 4th, three days after the return day, a motion was filed in this court for an extension of time. That this court was not competent to grant the said extension of time, even though said application had been made on the return day, the said appeal not having been perfected by the filing of the appeal bond; and there being no appeal bond this court was without jurisdiction to grant said extension. And the appeal bond was filed subsequent to the granting of said extension of time, to-wit: on December 7th, 1900 (transcript, p. 192).

2. That the motion of appeal mentions two judgments from which movers desire to appeal; one rendered March 26th and signed March 30th, 1900; the other rendered November 14th and signed November 20th, 1900 (transcript, p. 189). That, as to the judgment rendered March 26th and signed March 30th, 1900, a citation to appellees was necessary, the judgment having béen rendered at a preceding term of court, and no citation was prayed for by appellants, nor had ever been served herein to your movers as appellees, they having been the liquidators of said Oorbera & Klein Furniture Company, Limited, in Liquidation, and in due course of law discharged from their trust, they having distributed the funds in their possession as required by the court. That they are entitled to be cited, and the failure of said appellants to pray for a citation of appeal and to have such citation served is fatal to the appeal of appellants.

3. That in the motion of appeal no specific appellants are named, but reference is made to an opposition filed October 10th, 1900. That in the so-called opposition Palmer & Hardin and the Ames Furniture Co. are named as creditors, but they do not join in the appeal bond; nor are they named in said appeal bond as appellants. That the funds of this estate, having been distributed by order of court, and the liquidators discharged by final judgment, there are no funds before the court over which the jurisdiction of the court could attach. And if the amount, as claimed by said creditors as due to them respectively, even though the aforesaid Palmer & Hardin and the Alnes Furniture Company be included, be the test of the jurisdiction of this court, then this court is without jurisdiction, because the said claims amount in the aggregate to $1489.68, or less than two thousand dollars; and this court is, therefore, without jurisdiction over the appeal rations materias.

4. That this court is without jurisdiction because the claims of the appellants, or said so-called creditors, are not verified by affidavits, as required by law, and therefore they 'are without interest or right to appeal in the premises.

5. That the said transcript of appeal is incomplete, because certain evidence, mention of which is made in the note of evidence of October lLth, 1900, is not embodied in the transcript, and the same is due to no fault of the clerk of court, but to appellants, who offered said evidence, but did not actually file the same.

The evidence shows that the opposition presented by the Messrs. Sholars was filed after the others and after the account, with its prior oppositions, had been placed upon the call docket and posted. It is useless to discuss now whether there was, in fact, any fault or negligence in not calling the attention of the Messrs. Sholars to the fact that the account with its oppositions had been fixed for trial, or on their own part in not ascertaining that fact themselves, for that case has gone to trial, judgment has been rendered therein, the funds distributed in accordance therewith, and the liquidators been discharged by a judgment which has not been appealed from or questioned.

What we are now concerned in is to ascertain whether a motion of appeal made and an order of appeal granted long after all these matters had become accomplished facts and after the term at which the judgments were rendered, can stand or not. The motion for appeal refers to the two judgments of the 30th of March, 1900, and that of the 30th of November, 1900, as those by which appellants were aggrieved, but the bond refers to the judgment appealed from as a “final judgment rendered against them in the suit of In re Corbera & Klein Furniture Company, Limited, in Liquidation, on the — day of--, 189 — , and signed on the ■ — ■ of-, 189 — .”

Assuming that it was the purpose of appellants to have appealed from the judgment rendered on the 30th of March, 1900, it will be seen that the motion of appeal was made at a term of court other than that in which the judgment was rendered; after that judgment had become final, the funds had been distributed, and the liquidators discharged. Appellants contend that notwithstanding that condition of things, the appeal is sustainable, and they refer us to our decision in Hamilton vs. His Creditors, 51 Ann.

The facts of the two cases are not alike. It is true that the appellants 'in that case applied for and obtained an order for a devolutive appeal, but it was by a timely motion, made just after the judgment in the case had been rendered, and all parties in interest were thereby notified at once, without the necessity of citation, of the appeal granted, and that they were thereby made parties to the appeal. This court held that this result followed in the ease of a devolutive appeal as well as in the ease of a suspensive appeal. That the appeal having been granted on motion, the district court could not, after the appellate jurisdiction of the Supreme Court had vested, divest it by auy decree it might render thereafter discharging the syndic at his instance, even if true it had been (which it held it was not) that the continuance of the syndic in office was necessary for the maintenance of an appeal,- in the matter of a concurso with such oppositions and judgments, as were rendered in that particular instance.

We find an entirely different state of facts in the present instance. The motion of appeal and order of appeal were granted long after the judgments had become final; after the funds had been distributed, and the liquidators had been discharged. Conceding that the present appellants were not cut off from appealing, devolutively, under the then existing conditions, the appeal would have had to be brought up after citation, regularly made upon the parties in interest, which was not done. The appeal is not sustainable as one from the judgment of the 30th of March, 1900.

Viewing the appeal as one sought to be taken by motion from the judgment of 30th of November, 1900, no objection can be 'made as to the timeliness of the motion, but the trouble is that the so-called judgment was really an ex parte dismissal by the court of appellants’ oppositions, for there were no parties in interest before the court at that time; the liquidators had been discharged, and the creditors having been all paid without opposition, had disappeared entirely from the scene. The authority of the former counsel of the liquidators to represent them had ceased; they could not stand in judgment for them, even if they had been authorized so to do, for the liquidators themselves were then out of office and could not be reinstated of their own volition, nor in that particular manner.

There are no proper parties before the court to sustain the present appeal. The motion to dismiss which has been made we consider nothing more than a “suggestion” to the court by the former liquidators of a condition of things which would cause the appeal to fall. We take notice of this suggestion and dismiss the appeal, as of our own motion, for want of proper parties.

The appeal is dismissed.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,599.
    Christopher McDermott vs. American Brewing Company.
    Syllabus.
    Plaintiff seeks to hold defendant liable in damages for a violent assault and battery suffered by him at the hands of its (defendant’s) employe, who was a driver of defendant’s wagon and who sold and distributed the product of its factory to its customers. Plaintiff’s employer was one o'f defendant’s cash customers, to whom the driver, was to deliver beer for cash. The driver delivered beer to him and did not require the cash. The day after the sale, he called for the price and, as it was not paid, he sought to take matters in his own hands and resorted to violence. The agreement between the driver of the wagon and the defendant was that cash would be required and brought back to the factory for the beer in his charge for sale and if he failed to return either the cash or the beer, he would be made to pay his employer by deducting the price from his salary.
    By the effect of the agreement under which the driver was employed, in collecting the cash at a different time and in a different manner than he was instructed to do, the employer was not made liable for the violent assault. If a servant goes outside of his employment, acting with malice and causing damage, the master is not liable.
    APPEAL form the Civil District Court, Parish of Orleans— King, J.

      D. M. & Allan Sholars for Plaintiff, Appellant.

      Gustave Lemle for Defendant, Appellee.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sues for damages arising from an assault made by one of defendant’s employes, Moroy. He claims damages in the sum of ten thousand dollars. He avers, in substance, that this empHyee' was defendant’s driver and collector; that on a Monday he called at the store where plaintiff is employed as a clerk and salesman to collect the price of four kegs of beer which the defendant brewing company had sold to his employer the Saturday previous; that this employe was with another employe of the defendant company when he called to collect, as just stated, and that he, plaintiff, said -to this employe of the defendant, that his (plaintiff’s employer, Cheevers, was not in and that he had no authority to pay the bill. Whereupon, this employe of the defendant grossly insulted plaintiff, charging him with falsehood; said that his employer, Cheevers, was not away, and began to search in the house for him; that, not finding him, he declared that if the bill was not paid immediately, he would take the remaining keg of beer back into defendant’s (the brewing company’s) possession, and that Moroy became greatly angered when plaintiff placed himself in front of the beer cooler and objected to his removing the keg; that Moroy seized him by the throat and violently threw him on the floor. That owing to the plaintiff’s inferiority in size and to his ill-health, Moroy inflicted, in a most cowardly manner, a number of violent blows with his hands and feet causing severe injuries to his person; that while beating' him, Moroy ordered the other employe of the defendant company, Gauthreaux by name, to take the keg and place it in the wagon and that it was returned to defendant by this employe as he was directed.

Defendant interposed an exception of no cause of action to plaintiff’s demand and in the event of the court’s overruling the exception, the defendant pleaded a general denial and especially averred that it is not liable for the acts of its employees, if they acted as charged in plaintiff’s petition.

The testimony shows that plaintiff was assaulted, as charged, and that the remaining keg of beer of the four delivered by the driver to the employer of the plaintiff was taken, as alleged, and placed in defendant’s beer wagon.

The responsibility, vel non, of the defendant for the act of its servant is the question for our decision.

The alleged offender was unquestionably in defendant’s service. He drove its wagon and sold its beer, for which he received al salary of seventy-five dollars a month. The defendant had cash customers and credit customers. Before selling beer to a customer on credit, he was required to obtain the consent of the company.- It had collectors to collect amounts due for beer sold on credit. This driver was instructed to collect cash from the customers to whom the beer was sold for cash. He had to account for this cash in the morning after the previous day’s sale. It appears that plaintiff’s 'employer was a cash customer of the defendant from whom cash was required.

We think it had been usual with the driver to sell beer to plaintiff's employer on one day and return and collect the cash early the morning of the next day before settling with his (the driver’s) employer. But whether this was usual or not, there can be no question but that on this occasion the driver delivered beer for an amount to be collected on the following business day. We are led to infer from the testimony that if delays were granted by the driver to the cash customers and a loss resulted, it was his loss. There was an agreement by which he was made to bear the loss, that is, it was deducted from his wages. The test of the liability is, in whose behalf was this employe acting and was it with the intention of serving the purposes of the employer.

The act of this driver was not in the furtherance of the company’s business nor in the protection of its interests. The defendant had not sent him to collect, nor was it interested in recovering losses by pursuing the violent methods which it pleased the driver to pursue. The instructions of the company were to collect the cash at the time of the sale and to hand it over to the proper party the next morning. In order, as he wrongfully imagined, to make return in the morning as instructed, he resorted to violence. He thereby sought to protect his own interest, for his employer, whether rightfully or wrongfully, a question with which we are not, at this time, concerned, had made provision to protect itself in case of the driver’s failure to settle for the beer sold. The driver, by his own agreement with the company, and by his own inexcusable violence, had placed himself, at least, one remove from his employer and from the scope or even course of his employment. The act committed was not the act of the master and received no sanction from him in any way. When the servant returned to the plaintiff’s employer’s place of business, i. e., to Cheever’s saloon, it was for the purpose, as we interpret the testimony, of collecting, in order to avoid paying the amount himself. He had disregarded the instructions by delivering to this customer the kegs of beer before payment of cash. It was not to subserve the master’s interests, but his own.

It is true that this court recently held, in a case against a railroad» company for damages for wrongful ejectment of a trespasser by its brakeman, that the brakeman had authority, as an incident to his position, to remove a trespasser. The trespasser was riding on an iron rod touching or near the brakes and the running geár of which, to some extent, at least, he impliedly had charge. It was while in charge that the injury was inflicted and while seeking to protect the employer’s property from the act of a trespasser. The running of the cars would, we readily assume, be interfered with if trespassers were allowed to steal rides in the presence of, and without objection from, those in charge. He was not in any manner acting for himself. The servaut was acting in the general scope of his employment. Dorsey vs. R. R. Co., 104 La. Reports.

On the contrary, in the case before us for decision, the driver was seeking to collect an amount which, in accordance with agreement, he would have been charged with if he had failed to collect it.

In Lafitte vs. Railroad Co., 43 Ann. 37, the court said that a conductor in changing money for passengers acts at his own risk and responsibility; that the company (as in the ease here) loses nothing if counterfeit money is accepted by the conductor as he is charged with it, consequently the false charge brought by the conductor that the passenger had sought to pass counterfeit money on him was not a charge for which the company could be held liable.

In Williams vs. Palace Car Co., 40 Ann. 92, the court held that the employer is not liable in damages for the outrage to which the passenger had been subjected by the servant who was not acting within the scope of his employment, “that would be a dangerous ground for holding the employer responsible.” Difficulties which might arise between the bank teller and the one who enters the bank for the purpose of collecting a check; the assault and battery committed by the clerk in a store, or the servant who answered the call for permission to see the master, are given as examples of acts for which the master could not be* held liable.

Plaintiff cites the case of Shea vs. Reems, 36 Ann. 1884, in support of the position that the driver here was, as in that, acting within the scope of his employment. No question but that in all matters relating to the driving of defendant’s wagon and in selling beer as instructed, he was acting within the scope of his employment, but the servant here was not acting within the scope when he became a collector resorting to an outrage on the plaintiff to compel him to deliver up the property in order that he might lessen his own personal liability to the defendant, his employer.

The doctrine of respondeat superior applies to acts of an agent within the scope of his employment. Was the act here within the scope of the servant’s employment ? We have seen that he did not follow his employer’s instructions and that, after having disregarded them, he sought to protect his own interests to the extent of committing an unlawful act. He did not commit this unlawful act under express or implied authority. Corporations are liable for the torts of their servants to the same extent as private individuals, but no further. If a servant goes outside of his employment without regard to his service, acting with malice, and wantonly causes damages to another, the master is not liable.

It is not contended that the defendant was sent for this beer. As we interpret the testimony, it made no difference to them whether or not he brought it back, as he was bound for it in ease he did not return it, or he was bound to pay the price for which he was instructed to sell it. By the effect of the agreement between 'defendant and this servant, it had become the latter’s business.

The unlawful assault was not in any manner necessary for the performance of the driver’s work. A servant has implied authority to do what is necessary to protect his master’s property or to fulfil the duties entrusted to him, but neither was sought to be done by this driver.

In another jurisdiction, it has been decided that where a person employed to collect payments for machines sold on the instalmentplan, is instructed, in case of refusal to pay, not to touch the machines, or take them back, the employer is not liable for an assault committed by the servant or agent in- connection with an attempt, not authorized, to seize the machine. Feneran vs. Singer Manufacturing Co., 47 N. Y. (S) 284, 20 App. Div. 574. Here there is analogy to the decision last cited in this: the kegs of beer had been delivered in accordance with the requirements of the defendant’s business, but the cash had not been collected by the driver on delivery. The subsequent act w-as unauthorized and the master was no longer concerned, as the driver was bound for payment under the terms of his agreement.

We have reviewed all the decisions within our reach and have read several commentators upon the subject of the employer’s liability, and have not found that the employer is to be held liable for acts of the employe not in line with his employment. If the servant steps aside from the scope of his own employment, actuated, by personal malice or from motives of his own, he is, and the master is not, liable for the wrong committed.

For the reasons assigned, the judgment appealed from is affirmed.

Rehearing refused.


author: Blanchard, J.

text:
    No. 13,710.
    John May vs. A. B. Philips.
    Syllabus.
    1. A plaintiff, whose proceeding by executory process to collect a mortgage debt due him, is stopped by'injunction issued without bond on the averment that time to pay the debt had been given, is entitled to test by summary trial the grounds of the opposition.
    2. And nothing contained in Act No. 4 of 1896, entitled “An Act to fix and regulate the terms of the Civil District Court for the Parish of Orleans,” etc., negatives the right to try a motion to dissolve such an injunction on any legal day in the year.
    APPEAL from the Civil District Court, Parish of Orleans — Si. Paul, J., acting for Ellis, J., absent on leave.

      William W. Westerfield for Plaintiff, Appellee.

      Charles Louque and Delos C. Mellen for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff took out executory process on a note secured by mortgage, executed by defendant.

He had acquired the note from the Canal Bank of New Orleans by notarial act of purchase and subrogation.

Following the service of legal notice upon him, defendant sued out an injunction to prevent the clerk of court from issuing the writ of seizure and sale, and to enjoin the plaintiff from proceeding further in the 'foreclosure of the mortgage.

The ground for the injunction was that plaintiff had, through his representative, granted an extension of time in which to pay the debt, and the writ issued without bond, pursuant to Articles 739. and 740 of the Code of Practice.

The latter article requires the judge to pronounce summarily on the merits of the opposition .thus made, if the plaintiff require it, and the following article (741) recites that “the plaintiff against whom the injunction has been obtained may compel the defendant to prove, in a summary manner, before the judge, the truth of the facts alleged in his opposition.”

The plaintiff did require the judge to pronounce summarily on the opposition, and did by motion to dissolve, based on the allegation that the averment of extension of time was untrue, take action to compel the defendant to prove in summary manner the truth of the facts alleged in his petition for injunction.

When the motion to dissolve came on for trial, it is gathered from the record (though no bill of exception to this ruling of the judge appears), that defendant objected to the summary trial on the ground that the merits of the cause were involved, and for that reason no trial could be had during the vacation of the court.

Being ruled to trial he then moved for a continuance in order to take the testimony of an absent witness, alleging surprise.

There appears in the record no formal motion for continuance setting forth under oath what he expected to prove by the absent witness, nor alleging the materiality of the testimony wanted, nor due diligence exerted .to procure the attendance of the witness.

The motion to continue was overruled and defendant took a bill of exception.

Trial of the motion to dissolve was then had with the result that the motion was sustained and the injunction dissolved.

From this judgment a suspensive appeal was taken and this appeal is now before us.

The plaintiff, whose proceeding to collect the debt due him was stopped by injunction, issued without bond, was clearly entitled to test summarily the grounds of the opposition. The law granting him this right is clear and emphatic.

C. P. 740, 741, 751, 756.

Proceedings are summary — declares C. P. 98 — when carried on with rapidity, and without the observance of .the formalities required in ordinary cases. See also C. P. 1034.

In Penouilh, Tutor, vs. Abraham, 42 La. Ann. 326, which was a proceeding via execuiiva to foreclose a mortgage, the seized debtor enjoined the sale ’on like grounds as in the instant case, viz: that the seizing creditor had granted time for the payment of the debt. The defendant in injunction, acting under the authority of C. P. 741, ruled the plaintiff to summarily prove the truth of his averments, and on the trial of the rule his injunction was dissolved.

But counsel for defendant herein (plaintiff in injunction) cites Act No. 4 of 1896 as sustaining his contention that a rule to quash, or motion to dissolve, -which involves the merits of a pending controversy, cannot be tried during the vacation of the District Court for the Parish of Orleans.

That statute provides that the Civil District Court for the Parish of Orleans shall be opened at 11 o’clock á. m., and shall remain open until 3 o’clock p. m., from the 15th of October to the end of June in each year. It thus appears that that court is in vacation, so far as its usual, ordinary business is concerned, from and inclusive of July 1st to October 15th of each year. “But,” continues the statute, “for granting interlocutory orders, issuing any and all writs, trials of rules to quash same, and not upon the merits, etc., etc., said court shall remain open all legal days during the whole of the year.”

Stress is laid upon the words “not upon the merits,” and it is insisted that when defendant was ruled to trial upon the motion to dissolve on the 14th of August 1900 — the court being then in vacation — it was not competent for the judge to proceed to hear and determine the motion because, as averred, it was in effect a trial of the merits of the cause, which could not be had in vacation.

This contention is without force.

The statute referred to is not in conflict in any respect with the declarations of the codal law as -embodied in C. P. 740, 741.

The words of the statute “not upon the merits” are construed to mean merely that causes where issue has been regularly joined arc not to be taken up for trial on the merits during the court’s vacation. In the •instant case, if the evidence had been such as to warrant the court in overruling the motion to dissolve, that judgment merely would have been rendered, and this would have left the injunction suit intact on the docket, to be regularly answered in due time by-defendant in injunction, and for trial on its merits when the eourt convened after vacation.

It is observed that the trial court, in its judgment sustaining the motion to dissolve the injunction, reserved to defendant (plaintiff in injunction) the right to apply for another writ of injunction upon giving bond to secure plaintiff against injury.

The effect, then, of this judgment is merely to dissolve the injunction which issued without bond.

Nor was there error in .the ruling denying the continuance sought on the ground of the absence of the witness Morris. The bill of exception states his presence was desired to prove that the bank, of which he was president — the former holder of the mortgage note — would, if it had still continued to hold the note, have extended the same upon payment of the interest. This testimony, if had, would have been of no benefit to the plaintiff in injunction.

The bank had disposed of the note to the plaintiff in executory process in April 1900. The suit in foreclosure was not filed until July 26th, 1900. What the bank might have done in the way of granting an extension was without material bearing upon the controversy between plaintiff and defendant as raised by the injunction proceeding.

Besides, no sufficient showing for a continuance was made by the plaintiff in injunction.

The “surprise” pleaded by the latter was a matter — whether to continue or not on that ground — in the discretion of the trial judge, and the court sees no sufficient reason to interfere therewith.

On the merits of the motion to dissolve, the ease is with the defendant in injunction. The evidence does not establish that the extension of time for the payment of the debt, as claimed by the plaintiff in injunction, was given by the holder of the note.

The judgment appealed from is affirmed.

Rehearing, refused.


author: Monroe, J.

text:
    No. 13,802.
    City of New Orleans vs. S. Vidalat.
    APPEAL from the Second Recorder’s Court, City of New Orleans— Marmouget, J.

      Samuel L. Gilmore, City Attorney, and E. Garland Dupre, Assistant City Attorney, for Plaintiff, Appellee.

      E. Eoward McGaleb, Emile J. Meral and E. E. McGaleb, Jr., for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

The questions presented in this case are included in those considered and determined in the case entitled “The City vs. August Faber,” 105 La. p. 208, this day decided. For the reasons assigned in that case, therefore, it is ordered, adjudged and decreed that the verdict and sentence herein appealed from be and the same are hereby affirmed.


author: Monroe, J. Blanchard, J.

text:
    No. 13,304.
    First National Bank of Fort Wayne, Indiana, vs. Fort Wayne Artificial Ice Company.
    Syllabus.
    1. A third opponent, claiming property under seizure, has no standing to question the regularity of the proceedings, unless he charges fraud or collusion to his prejudice. He is, otherwise, confined to the establishment of his title to the property claimed by him.
    2. Where a defendant in attachment files a general denial and makes no attack, by pleading, upon the attachment, and no motion to dissolve, and the transcript of appeal fails to show what objections were urged with reference to the issuance of the writ, or when they were urged, or by whom, this court is not at liberty, on the appeal, to review such questions, presented orally or by brief.
    3. Whilst it is true that quoad the vendor and vendee, immovable property may pass beyond the control of the former, by reason of an unrecorded sale, the proposition does not hold good as to third persons, who are creditors of the vendor, and the property remains subject to seizure by them until the sale is recorded.
    4. In such a case, the courts will take notice of the fractions of a day, and a recorded seizure will take precedence of a subsequently recorded sale, if the difference in time can be ascertained by proof.
    5. Where a third opponent claims the ownership of immovable property, which has been seized by the sheriff in a suit against his vendor, the burden of proof is upon him to show not only that the property was sold to him, but that the sale was recorded, before the seizure.
    On Reheamng.
    Plaintiff’s seizure, under writ of attachment, having been made prior to the registry of the conveyance under which the intervenor claims, cannot be defeated by the latter.
    APPEAL from the Civil District Court, Parish of Orleans— Si. Paul, J.

      Parherson & Tobin for Plaintiff, Appellee.

      Harry H. Hall for Defendant and Intervenor, Appellant.
   The opinion of the court was delivered by

Monroe, J.

The opinion of the court on rehearing by Blanchard, J.

Monroe, J. Dpon January 26, 1899, plaintiff instituted suit against defendant, a corporation organized under the laws of Indiana, and having its domicil in that State, to recover a balance of $15,000.00, due upon certain promissory notes, of which plaintiff is holder and owner, and which had been made by defendant, to the order of R. T. McDonald, and were by him indorsed. An attachment issued, and, upon the same day, was levied upon certain real estate in New Orleans, the seizure of which was duly recorded in the mortgage office. Thereafter, February 2nd, a curator ad hoc was appointed to represent the absent defendant, and, upon February 15th, the curator filed a general denial.

Upon April 12th, following, the Ilygeia lee Company, Limited, filed an intervention and third opposition, alleging that it had purchased the property in question, by notarial act, January 21st, 1899, and was the owner of it at the date of its seizure, and praying for' judgment ordering the release of said property, and decreeing said company to have been the owner when the attachment was levied. To this intervention the plaintiff filed a general denial, and there were no other pleadings. No serious resistance was offered as against the debt claimed, and no attack, by pleading of any kind, was made upon the attachment. There was judgment for plaintiff for the amount claimed, maintaining the attachment, and the defendant, as also, the opponent, have appealed.

Opinion.

Objection is made, by way of argument, to the sufficiency of the affidavit for the attachment and of the sheriff’s notice which was served on the curator ad hoc. But, whilst the same counsel represents both the defendant and the opponent, the only brief filed by him is signed in his capacity as attorney for the opponent; who has no standing to raise such questions. As far back as 1820, this court said: “A “ third party has stepped in, averring the goods to be his property and “ demanding restoration of them. The claimant has not only attempted “ to prove the property to be his, but he has been acting the part of the “ defendant by undertaking to show that the attachment ought not to “ have issued, and that after it had issued, it was imperfectly executed. ’“ The only thing which we conceive a claimant may be permitted to do “ is to show that the property attached is verily his. As soon as he “ succeeds in that, his part is at an end. But a claimant has surely no “ right to show any irregularity in the suit in which he intervenes for “ the sole purpose of rescuing the property. Whether the plaintiff, the “ court, and the sheriff have been acting legally or not, is none of his “business.” 8 M. 55.

Shields, 21st Ann. 118; Commission Co. vs. Bond & Williams, 44th Ann. 841; Lincoln vs. Express Co., 45th Ann. 729.

It is true that, in the oral argument before this court, it was stated that the defendant also desired to urge the objection. In the lower court, however, as we have stated, no serious resistance was offered against the debt claimed, and no attack, by pleadings of any kind was made upon the attachment. The general denial applies to the allegations of the petition and contain no reference to the affidavit for the 'attachment, or to the manner in which the writ was executed. Any objections which were made to the attachment must have been made orally, and we have no means of knowing what they were, or when they were made, or whether made by defendant or opponent. Thus, the record merely shows that the judge a quo declined to consider objections of some kind, for the reasons, as stated by him, that, “where a, “party seeks to prevent a seizure on the ground that he is the owner “ of the property seized, no other issue can be tried but that of owner- “ ship. Besides, the defendant having joined issue, any informality in “ the issuance of the attachment is cured.”

It is for the appellant to show that there was error in the ruling, and no such showing has been made. “Every act of a court of competent jurisdiction shall be presumed to have been rightly done until the contrary appears.” Rice on Ev., Vol. 1, p. 63.

“The appellant must present a record showing error so clearly as to “ overthrow every presumption of regularity. lie must exclude every “ presumption, in favor of the judgment arising from omissions in the “ record, by including all the trial court proceedings affecting the error “ alleged. No presumption or inference in favor of the appellant will “ be made.”

Ency. Pl. & Pr., Vol. 2, 294.

“It is argued that the plaintiff had no right to the writ of provis- “ ional seizure. * * * No application was made in the court below “to quash the proceedings under the writ; and although the objection “ to the issuance of the writ was contained in the defendant’s answer, “ no action of the court was had upon it, and we are not at liberty to “ consider the subject on appeal.”

Ledoux vs. Smith, 4th Ann. 482.

“It is too late, after an appearance and answer by defendants, and a trial on the merits, to move to set aside an attachment.”

Watson vs. McAllister, 7 M. 368; Enders vs. The Henry Clay, 8 R. 30. See, also, Ealer vs. McAllister, 14th Ann. 821; Airey & Co. vs. Okolona Savings Institution, 33 Ann. 1346.

It is said that plaintiff had no right to attach, as belonginng to the defendant, property which had been sold by it, and over which it had, therefore, no control at the time of such attachment. The proposition, otherwise stated, being, that, where a vendor and vendee have reached an agreement, which, as between them, amounts to a sale of real estate, the property at once, and without regard to the registry of the contract, passes beyond the control of the vendor, and, therefore, ceases to be liable for his debts, unless the same should be contracted upon the faith of his apparent continued ownership. We .take it to be well settled, under our law, that, whilst a sale of immovable property may be good, as between the parties, by virtue of their agreement, it is void as to third persons until registered; and that so long as such sale is unregistered, an innocent third person may acquire title by purchase, either from the apparent owner himself, or at a judicial sale made at the instance of the creditor of such apparent owner.

C. C. 2255, 2262, 2266, 2275.

Meyer & Brothers vs. Simpson, Sheriff, 21st Ann. 591; Doughty vs. Sheriff et als., 25th Ann. 290; Derbes vs. Romero, 32nd Ann. 927 Boyer vs. Sheriff, 40th Ann. 657.

Cases in which it has been held that a title in an apparent vendee will not preclude the real owner from asserting hisi rights against a creditor of the vendee who has not changed his position by reason, of such apparent title in his debtor have no application.

It is further contended that the registry of plaintiff’s attachment, and of the sale to the opponent, of the property attached, having been made upon the same day, the law will not take notice of fractions of the day, and will, therefore, give no precedence to the attachment over the sale, even though the former may have been registered in the morning and the latter in the afternoon.

In discussing the rule thus invoked, our predecessor^ in this court have said:

. “It has been repeatedly held that the general rule, that the law admits “ of no fractions of a day is a mere legal fiction that is subject to “numerous exceptions; and that whenever it becomes necessary to “determine who of several persons has a priority of right, time may “be distinguished with accuracy. In the case of Callahan vs. Hallwell, 2 Bags. S. C. p. 9, the court said that Time is, in its nature, “ essentially divisible from years down to hours and minutes; a minute, “ therefore, will give priority, as effectually, in point of time, as a year “ or a day.’ ” The court, in its opinion, refers to the case of Combe vs. Pitt, 8 Burr. Rep. 1423, 1431, in which Lord Mansfield said: “But “ though the law does not, in general, allow the fraction of a day, yet “it admits it in cases where it is necessary to distinguish. And I do “not see why the very hour may not be so too, when it is necessary, “ and can be done, for it is not like a mathematical point, which can “not be divided.” See, also, Simon vs. Statts, 1 Wendell Rep. 593; 11 Johnson Rep. 229; opinion of Mr. Justice Story in the Matter of Joseph Richardson et al., Law Reporter, Vol. 6, p. 397.

“In no classes of cases have the subdivisions of the day been more “ frequently recognized than in the conflicting rights growing out of “the institution of judicial proceedings, and the execution of writs, “from which preferences result. There are cases in which our lav/ “ expressly forbids the different hours of the day from being recog“nized as affecting the right of parties, as in the instance of the in- “ seription of mortgages, but the prohibition must be confined to the “cases enumerated, and must be considered as an admission that the “ rule would be otherwise in the absence of an express enactment.”

Tufts vs. Carradine et al. 8 Ann. 430. See, also, Gomilla vs. Millekin, 41st Ann. 123; Bank vs. Burkhart, 100 U. S. 686; Louisville vs. Bank, 104 U. S. 469.

In the case of Tufts vs. Carradine, thus cited, the court was called upon to decide between five attaching creditors, whose attachments were made at different hours, upon the same day. But the conclusion would have been the same if the first attaching creditor had been asserting his priority as against persons claiming rights, in or upon the property, upon other grounds than competing attachments. Thus, in Beck vs. Brady, 7th Ann. 3, there was a contest between an attaching creditor, and creditors who obtained judgments and seized under executions, and the court, referring to the conditions at the time of the attachment and to the fights of the attaching creditor, said: “One “ who has no better rights at the time, that is, no privilege, mortgage, “ or lien, can not, subsequently, acquire either, so as to defeat the “process in his favor.”

In Stephenson vs. Lee, 6th Ann. 758, the plaintiff injoined the sale of a slave, under an execution which had been preceded by an attachr ment, upon the ground that the slave had been adjudicated to him in the foreclosure of a mortgage. It was found that the mortgage was not registered until after the attachment, and the court said: “The attachment, therefore, takes precedence of the unregistered mortgage.” It also appearing that the slave had been bonded, when seized under the attachment, and thereafter sold under the mortgage, the court said: “Even if the registry of the sale of slave attached, after he was “ bonded, might defeat the attachment, still, in this case, that sale was “ not completed and registered in the conveyance office. Therefore, it “ had no effect against third persons, and the property was still subject “ to seizure and execution.”

In Gasquet et al vs. Johnson, 2 La. 518, it was said, through Martin, J.: “When the opposing creditor has an imperfect title (the possession “ still remaining in the vendor) the attaching creditor will hold the “ property; the sale as to third persons being completed by the delivery “ alone, etc. (and at page 18). “The decision of this court that, where “ the debtor may sell, the creditor may attach, must be understood as “ confined to cases in which the debtor had once the possession of the “ goods, and still retains it as to his creditors, although he may have “lost it to his vendee, as in the ease of a sale not followed by a “ delivery.”

In Emerson et al. vs. Fox et al., 3 La. 182, it was said by Judge Martin, as the organ of the court: “The contract of sale is perfect as “to the parties, by their agreement, before tradition, * * * but “ this tradition is necessary to vest the property in the vendee. This “ has been so very often decided in' this court that a reference to par- “ ticular eases is unnecessary. But the law considers the tradition or “ delivery of immovables as always accompanying the public act which “ transfers the property. * * * From this general provision, those “ cases must be excepted in which there is an evident legal obstacle to “ the delivery. The law can not consider that as done which can not “ legally be done. In the present case, the house and lot being ‘in the “possession of the sheriff, at the time of the sale, it is clear that the “vendor could not make a tradition or delivery of them without vio- “ lating the possession of the sheriff,’ ” etc.

Under the law, as it now stands, regulating seizures by the sheriff, in the Parish of Orleans, that officer is not required to take the property into his physical possession, but to cause a notice of seizure, the form of which is prescribed, to be served on the person whose property is to be seized,' and a like notice to be recorded in the mortgage office. He is also required to note and to make return of the date and hour of such recordation, which is “deemed and considered as the seizure and possession by the sheriff ” etc.

R. S. 3625, 3626, 3627, 3628, 3629.

We have seen that the seizure in this case was recorded at forty minutes past one o’clock, upon January 26, 1899. It is not denied that the effect was the same as if the property had been taken, as it would have been in the country parishes, into the actual, physical, possession of the sheriff. It is admitted, that, as between seizing creditors, the law favors the vigilant, and that the first in point of time, whether it be days, or hours, or minutes, obtains a preference over those who are later. It is said, however, that -a creditor who seizes in the morning, takes absolutely nothing, as against a prior purchaser who records his act of purchase in the afternoon, whilst the property is in the hands of the sheriff.

But, if the seizure by one creditor is good as against a subsequent seizure by another creditor, why should it not be good as against a purchaser to whom no delivery has been made, or can be made? By the express terms of the law, the seizure takes effect at the moment that it is made; whilst in regard to sales, the law reads: .

“All sales, contracts and judgments, affecting immovable property, “ which shall not be so recorded, shall be utterly null and void, except “ between the parties thereto. The recording may be made at any time,» “ but shall only affect third persons from the time of the recording. “ The recording shall have effect from the time when the act is deposited in the proper office, and indorsed by the proper officer.” C. C. 2266.

In Summers & Brannins vs. Clark, 30th Ann. 436, the article cited was applied in a case where leased property, situated in New Orleans, was seized under execution, and the seizing creditor claimed the rents, though the lessee, holding under an unrecorded lease, had bound himself for the same by negotiable promissory notes, which he had delivered to the lessor, and which were outstanding. It was held, that the lease not having been recorded, as required by C. C. 2264, was null and void as to third persons, as provided by Article 2266, and that the lessee was bound to the seizing creditor for the rents.

This court said: “If a vendee in such case can, by seizure, be deprived of possession and enjoyment under his purchase, why not a lessee? If, in such a case, it is no defense that the vendee has paid the price, why should it be that the lessee has paid the rent? The principies involved in the two cases are the same, and by no means novel.”

At page 440, upon application for rehearing, the suggestion was considered that the article referred to, had been incorporated as new law in the Code of 1870, and it was held that this did not affect the conclusions as announced in the original opinion, which were, accordingly affirmed.

It will be observed that, by Article 2266, the sale takes effect as against third persons, from the “time,” and not from the “day” or. “date” of the registry, so that, if it could be supposed that the use of the latter words would make a difference in a case such as this, the question must be regarded as settled by the use of the word “time” in the later enactment.

The opponent alleges that it had purchased the property in question before the attachment, but it does not allege that there had been any delivery. Upon the contrary, the allegation upon the subject is, that the[ “sheriff has attached and taken into his possession, the following described property,” etc. The opposition is, therefore, in the nature of a petitory action in which the plaintiff must recover upon the strength of the title exhibited by him. In any aspect of the case, the burden of proof rests upon the opponent to show that, not only as to its vendor, but as to the plaintiff in attachment, the property in the possession of the sheriff belonged to it at the moment of the seizure. Harper vs. Bank, 15th Ann. 135; State vs. Bank, 20 Ann. 468; Williams vs. Hefner, 30 Ann. 1193.

And, inasmuch as registry is necessary in order to establish title in real estate, as against third persons, the burden rests upon the opponent to show, affirmatively, that, the title under which it claims was duly registered before the plaintiff acquired possession by seizure. It is not pretended that this has been done.

It appears from the evidence that the act of sale, upon which the opponent relies, was executed January 21, 1899, but that the parties thereto failed to reach a conclusion as to which of them should pay the internal revenue tax, amounting to $160, so that the matter remained in abeyance until January 26, the day upon which the attachment was levied. Whether the question of the payment of the tax was settled, and the act was then registered before the registry of the seizure, or afterwards, does not appear.

It is clear, however, that the time at which the revenue stamps were affixed, and at which the act was sent to the conveyance office, and received and indorsed by the register, are matters that are within the cognizance of the opponent, rather than of the attaching creditor, and that the burden of proof upon the subject rests upon the former. Greenleaf on Ev., Sec. 29; Bowman vs. McElroy & Bradford, 15th Ann. 663; Ridgely, Blair & Co. vs. Gill, 15th Ann. 509.

Beyond this, there is no other evidence than the declaration contained in the act of sale, that the purchaser has paid any part of the purchase price, or that it will lose anything by the seizure. And, in view of the admission that the question of the revenue stamps remained open until January 26th, it seems hardly probable that any payment was made before that time. Upon the other hand, if the purchase price was paid onj the date last mentioned, and after the seizure, the purchaser did a very imprudent thing, and has only itself to blame; for, it is shown that the certificate of mortgages, attached to the act of sale, bore neither date nor signature when the act was registered; and it has been stated, in argument, without contradiction, that it had been issued more than a month before, and was eventually dated January 21, 1899.

What difference, if any, it would have made if the sale to the opponent, though recorded after the seizure by attachment, had been recorded within forty-eight hours after the passage of the act, as provided by C. C. 2255, is a question which does not arise.

Eor these reasons, we are of opinion that there is no error in the judgment appealed from, and it is, accordingly, affirmed.

On Rehearing.

Blanchard, J.

A review and reconsideration of this case, on rehearing, after oral argument again heard, has not lead to a conclusion different from that announced in the former decree of this court.

The seizure under the attachment was sufficient.

The sheriff’s notice recorded in the mortgage office on January 26, 1899, contained the title of the suit, the number upon the docket, the name of the court from which the writ issued, the amount claimed, and the description of the property seized.

This complied with the requirements of R. S. 3183.

“The recording of the description and notice mentioned above,” declares R. S. 3186, “shall be deemed and considered as the seizure and possession by the sheriff of the property therein described” — this, in the Parish of Orleans.

The same day the sheriff posted a copy of the writ at the places and in the manner required by law.

Later, on February 2, 1899, a curator ad hoc was appointed to defend the non-resident defendant.

It would seem, and such is the legal presumption, that the necessary service of papers was made upon him- — citation, original and supplemental petitions and notice of seizure — for we find that the curator, on February 15th following his appointment, filed an answer “to plaintiff’s original and supplemental petitions.” This answer was merely a general denial.

The objection to the sufficiency of the seizure under the attachment is leveled at the circumstance that, whereas the notice of seizure recorded in' the mortgage office did contain a statement of the amount claimed, that served on the curator ad hoc omitted mention of the amount claimed.

It contained, however, the description of the property seized, the title and number of the suit and the court in which pending, and the copies of the petitions served at the same time set forth fully the nature and amount of the claim.

This sufficed, even if the defendant can now, after formal answer to the merits and without plea, raise the point of insufficiency of the seizure.

The sale of the property under which the intervenor claims was made on January 21st, 1899, but its registry in the conveyance records was delayed until January 26 th.

Now, on the latter day the plaintiff’s attachment issued, and at the time the seizure of the property thereunder was effected by registry of the notice in the mortgage office, there was nothing on record, or filed in either the office of the Register of Conveyances or in the mortgage office (though a special mortgage had been retained in the act of sale to secure a large balance of unpaid purchase price) showing the sale to have been made.

At least there is nothing in the record of the ease tending to establish a registry of the sale prior to the attachment.

Plaintiff’s evidence shows that his seizure under the attachment was made at 1:40 p. m. of that day. If there had been prior registry of the sale it was incumbent on the intervenor to show it. The burden was on him. Williams vs. Heffner, 30 La. Ann. 1193.

It must be held, therefore, that the seizure under the attachment primed in point of time the registry of the act of sale under which the intervenor claims.

C. C. 2254 makes it the duty of the recorder to endorse on the hack of each act deposited with him the time it was received and to record the same without delay in the order in which they were received.

C. C. 2258 declares he shall register all acts of transfer of immovable property passed in the Parish of Orleans, which shall be presented to him, in the order in which said acts shall have been delivered to him, to be registered.

C. C. 2262 says “in. the Parish of Orleans, acts, whether passed before a notary public or otherwise, shall have no effect against third persons but from the date of their being deposited in the office of the register of conveyances.”

C. C. 2264 lays it down that “no notarial act concerning' immovable property shall have any effect against third persons until the same shall have been deposited in the office of the parish recorder, or register of conveyances of the parish where such immovable property is situated.”

And, finally, C. C. 2266 recites that “all sales * * * affecting immovable property, which shall not be (so) recorded, shall be utterly null and void, except between the parties thereto. The recording may be made at any time, but shall only affect third persons from the time of the recording. The recording shall have effect from the time when the act is deposited in the proper office, and endorsed by the proper officer.” (Italics ours).

In view of these plain and precise declarations of the law, it is impossible to hold otherwise than that plaintiff’s seizure under the writ of attachment having been made prior to the registry of the conveyance under which the intervenor claims, it cannot be defeated by the latter.

The authorities cited in the opinion of the court heretofore handed down are directly in point as sustaining this view of the law.

For the reasons therein given and those herein contained, - it is ordered and decreed that the judgment appealed from be affirmed at the eosts of the appellants in both courts.


author: Nicholls, C. J.

text:
    No. 13,563.
    N. Burg vs. Henry Rivera.
    Syllabus.
    1. Where the vendee of a piece of real estate buys in good faith and pays the price, and then sells it in good faith to another person, partly for cash and partly on negotiable notes, secured by special mortgage and vendor’s privilege, a judgment creditor of the original owner cannot disregard the sales and make a direct seizure of the property under a writ of fieri facias, on the ground that the two sales are simulations, and tlie result of a collusion between the original owner and his mother-in-law, by which, as between themselves, she was to become the purchaser as a party interposed for himself.
    2. A vendor of real estate cannot, after he has divested himself of title, affect the rights of the purchaser by declarations made out of the presence of the purchaser derogatory to the title. ( 3 Ann. 230.)
    APPEAL from the Civil District Court, Parish of Orleans— Ellis, J.

      William S. Benedict for Plaintiff, Defendant in Injunction, Appellant.

      Kernan & Gowland for Mrs. Catherine Hester, Plaintiff in Injunction, Appellee.
   Statement of the Case.

The opinion of the court was delivered by

Nicholls, C. J.

Plaintiff having obtained a judgment against defendant, seized certain property under a writ of of fieri facias which issued in execution of the judgment.

Mrs. Catherine Hester enjoined the sale, claiming the property seized as her property; she prayed for judgment perpetuating the injunction and for damages including attorneys’ fees for the sum of five hundred dollars.

Plaintiff, Burg, answered this demand pleading, first, the general issue. He admitted the seizure of the real estate, as set forth, and averred that same was legally had and done by virtue of a final judgment in this cause against Henry Rivera, under execution properly issued; that at the time of the original action the said property stood in the name of said Henry Eivera, and during the course of the proceedings, and in anticipation of judgment on a valid debt declared upon and to avoid payment thereof, or execution as against all the tangible property by him owned, plaintiff did, with fraudulent intent to defeat said judgment, make a nominal transfer of said property to his mother-in-law, the said Mrs. Catherine Hester, in the following manner, viz:

First — By making a deed thereof to the Security Building and Loan Association for the nominal sum of $1500.00 cash.

Second — By having his said mother-in-law become a stockholder of the Security Building and Loan Association Company in the purchase of fifteen shares, in her nominally borrowing from said association $1500.00, giving her note therefor, and in causing the transfer of said property, mortgaged to secure said $1500.00 to be loaned to her, the said Catherine Hester, the real and actual value of said property being at these dates, and since, more than $3000.00; that both transfers were as to said Henry Eivera and said Catherine Hester, simulated, null and void, and, if not simulated, were fraudulent and void, and entered into for the purpose of preventing the execution of the judgment of respondent as aforesaid, and that no funds other than costs necessary to make such transfers were used therein, and that said Henry Eivera had no other tangible property.

That he had been damaged, by reason of the injunction aforesaid, in the sum of $100.00 counsel fees, and $150.00 special damages, in delay, loss of time, obstruction of his writ, and for which he now makes demand.

He prayed that the injunction issued be dissolved, with $250.00 damages.

The District Court rendered judgment in favor of Mrs. Catherine Hester, perpetuating the injunction with one hundred dollars damages, and the seizing creditor, Burg, appealed.

Opinion.

There can be no doubt that the title of the property involved passed by a sale from Eivera to the Security Company for fifteen hundred dollars, and that the price of the sale was paid by it. Having acquired the property, it sold the same on the 27th of March, 1897, to Mrs. Hester, the plaintiff (in injunction), for fifteen hundred dollars, she executing her promissory note in representation of the price secured by special mortgage and vendor’s privilege. It is claimed by the seizing creditor, Burg, that the sale from Rivera to the Security Company and from the Security Company to Mrs. Hester, were simulations. The reality of these two sales quoad the Security Company and its good faith as to both is not questioned. It has not been made a party to this suit. It is asserted that, in point of fact, Rivera was the real purchaser from the Security Company and not Mrs. Hester, who is Rivera’s mother-in-law. The company did not deal with Rivera or consent to accept him as its debtor; it holds Mrs. Hester’s note, and she is, unquestionably, bound upon it. Plaintiff attempts to shift the title to the property from Mrs. Hester to Rivera by parole.

The evidence introduced to establish this contention would be insufficient to sustain it even if it were conceded that title to real estate could be destroyed in that way. Mrs. Hester was a witness on the stand and the seizing creditor did not cross-examine her. Statements made by Rivera after his sale of the property to the Security Company to Labiche, no person being present, but themselves, as to his object and purposes in making the sale, cannot affect the Security Company or Mrs. Hester.

We find no good ground why the judgment appealed from should not be affirmed (see Weathers vs. Pecot, 52 Ann. 932). It is hereby affirmed.

Rehearing refused.


text:
    No. 13,564.
    George B. Penrose, Treasurer of the City of New Orleans, vs. Succession of J. J. Gragard.
    Syllabus.
    Plaintiff sues for taxes. Defendant was a commission merchant. The property assessed in his name was property received by him as consignee. Property must be assessed in the name of the owner. The consignee, under the terms of the statute, is not made the collecting agent to collect taxes from his cus tomers. If any taxes be due, it is a matter between the consignor and the city.
    The administrator cannot be made to account for taxes not due by the succession he represents.
    APPEAL from the Civil District Court, Parish of Orleans— • King, J.

      Samuel L. Gilmore, City Attorney, M. Bracos Bimitry, Assistant City Attorney, for Plantiff, Appellant.

      James F, Pierson and Horace F. Upton for Defendant, Appellee.
   The opinion of the court was delivered by

Breaux, J.

The City of New Orleans claims taxes from the legal representatives of the Succession of J. J. Gragard, in the sum of two thousand and eighty-four dollars, with interest at the rate of ten per cent, thereon from the respective maturities of the tax bills.

The property on which the taxes are claimed is movable and has been assessed for the years 1894 to 1899.

The treasurer of the city proceeded by rule against the administrator of the succession to compel him to deliver the property assessed to be sold to enable him to collect taxes due. The administrator sought to meet plaintiff’s rule by denying that he ever had the property in his possession on which plaintiff is seeking to collect taxes. The city, after the answer had been filed, discontinued its proceedings and subsequently sued out a second rule for the amount of taxes before mentioned, claiming that she is entitled to preference without waiting for a final account of administration and invoking the first rule as having had the effect of a demand for the production of the property assessed to be seized and sold for'taxes; that, in his answer to the first rule, the administrator admitted that he did not have the property in his possession. The city, through its treasurer, asked for a rule to compel the administrator to pay the taxes out of “any other funds or property in his possession belonging to the succession, or, in default, for a personal judgment against him for the amount.”

The defendant in rule, among other grounds, sets forth in an exception that the plaintiff in rule does not show that the City of New Orleans has any privilege on any property or proceeds of property or other funds belonging to the succession or in the hands of the administrator out of which payment of taxes is claimed; that the city has no privilege on any property of the succession in the hands of the administrator; that if a creditor at all, she is only an ordinary creditor, and payment can! not be enforced by rule; that it can be paid, if at all, only contradictorily with other creditors in a distribution of the funds and on account with the presence or concurrence of all the other creditors. The defendant in rule also filed an answer setting forth the grounds of defense at considerable length.

The ease is before us for decision on an agreed statement of facts showing that part of the property assessed to J. J. Gragard, who died insolvent, was staves held by him on consignment for sale for account of different consignors and that he was not the owner of them. They were all sold for account of the different consignors. With reference to the cotton and other remaining property for which taxes are claimed, it is admitted that the defendant, beford his death, was a cotton factor and commission merchant in New Orleans for a number of years, and that he received cotton as he received the staves, on consignment to be sold for account of the consignors; that prior to the sale of the cotton, he obtained advances from each of the banks in the city for a limited amount, which he, in turn, advanced to his customers; that in this way he held bills and accounts receivable of the various consignors and that such bills and accounts were carried by him to meet the settlements with the banks for the advances made through them upon the cotton consigned and that they constituted the bills receivable which were assessed to him for the years stated in the assessment; that the commission business was carried on in this way until the date of his death, at which time none of the property in question was in his possession.

We take for decision the proposition that one not an owner is under no obligation to pay the taxes assessed against him.

We have seen that the staves assessed against him were never the property of the late J. J. Gragard. He only had them in his possession as a commission merchant. He sold the staves and accounted, as we understand, to the owner. The property itself was not subject to taxation as the property of the commission merchant as owner, for he was not the owner. The cotton received and sold under a similar state of facts was not subject to taxation in the hands of the consignee, as owner, who held it and sold it for account of its true owner, nor, for the same reason, were the proceeds of the sale subject to taxation as being the personal property of the cotton factor.

Conceding for the moment that the property was subject to assessment, although assessed and taxes paid prior to consignment (a difficult problem to solve against the owner, we must say), yet it should be assessed in the name and for the account of the owner and not in the name and for the account of the consignee. The duty of the assessor is to assess property in the name of the owner. The different statutes on the subject of assessment have always provided for some identification of the property assessed, and the most direct method of identification is in the name of the owner, which we take to be indispensable, unless the owner is unknown.

The following statutes upon the point, viz. Section 19 of Act 170 of 1888, and Act 106 of 1890, have been interpreted in McWilliams vs. Michel, 43 Ann. 988, and in Norres vs. Hays, 44 Ann. 907, and it has always been held that the assessment must be made in the name of the owner. Assessment in the names of the different consignees was never contemplated. Such assessment would bring about no end of confusion in business. The consignee would experience very great difficulty in collecting the taxes paid by him for his consignors. If he had a number of consignors, it would require special vigilance and watchfulness to determine the amount due by each, even if t it were assumed that the consignor would rest content in the presence of a charge against him for taxes for which he had never been assessed.

We have passed, without decision or comment, the different issues raised regarding the liability of an administrator who represents a succession owing taxes. We rest our decision on the fact that the property was not assessed in the name of the owner and that, in consequence, it created no right for which thel administrator could be held either as administrator or personally.

Eor these reasons, the judgment appealed from is affirmed.