author: Fenner, J. Bermudez, C. J.

text:
    No. 9390.
    John Chaffe & Sons vs. Mrs. Annie L. Watts and Husband.
    A chief object of the laws authorizing the wife to obtain a judicial separation of property, is to emancipate not only her property, but her industry, from control of the embarrassed husband, and from liability for bis debts; to enable her to conduct business in her own name and for her own account and benefit, and thus to earn a livelihood for herself and family. When she thus conducts business in her own name and ostensibly for her own account and induces innocent third parties to contract with her npon the faith of her own and her husband’s representations that the business is her own, she cannot afterwards repudiate her obligations on the pretense that the business was really that of the bus band, in opposition not only to her representations, but to all the ostensible appearances of its conduct. Having thus represented and held out the business as her own, by con. ducting it in her own name through a series of years, as well as by her express assurances, the doctrine estoppel fully applies.
    APPEAL from the Eighth District Court, Parish of Madison. . JMoney, J.

      Jalm B. Stone for Plaintiffs and Appellees.

      Farrcvr & Spencer for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

The defendant, Mrs. Watts, was separated in property from her husband by a judgment rendered in May, 1875, the validity of which is not questioned.

In February, 1879, her husband came to New Orleans with a letter from her addressed to plaintiffs, authorizing him to make with them necessary arrangements to carry on her planting operations for that year.

Plaintiffs refused to deal with him, hut said that if Mrs. Watts would come and make her application in person, they might furnish her. She then came and applied in person for the advances. Mr. Cliaffe says she told him that she owned the stock and implements on the places leased, and that they were leased by herself, and similar statements had been made previously by her husband.

There exists a conflict between the testimony of Mr, Challe and Mrs. Watts on these subjects, but there are so many contradictions and inconsistencies in the latter’s statements, that the testimony of Mr. Chañe certainly far outweighs hers, which contradicts not only the testimony of Chaffe, but that of Mackey, and even her own. On these statements, an arrangement was made between plaintiffs and Mrs. Watts in person, for advances to enable her to cultivate the plantations, and a crop lien was executed by her, with the authorization of her Inisband for snob advances, with express understanding that the account with plaintiffs was to be kept in Mrs. Watts’ name, but that her husband was authorized to draw or order against her account as her agent and over his signature as sucli.

Under these arrangements the plaintiffs made advances during the years 1879, 1880 and 1681. The operations resulted in heavy loss and indebtedness to defendants, for which, in 1882, the notes sued on were executed by Mrs. Waits with the authorization of her husband. Not only were the dealings exclusively between Mrs. Watts and plaintiffs, but the business of the plantations was conducted entirely in the name of Mrs. Watts, the leases to the sub-tenants and all other affairs being conducted entirely in her name, her husband never appearing therein except as her agent.

There is no pretense that the advances and supplies were not used in the business of the plantations, which had been represented and conducted exclusively as the separate business of the wife.

Under these circumstances, nothing seems wanting to fix the liability of the wife.

But in the defense to the snit, it appears that the plantations so cultivated had been leased for a term of five years in the name of the husband. This-was not known to plaintiffs and was contrary to the express representations to them of both the husband and wife. At the date when the arrangement was made between Mrs. Watts and plaintiffs, in February or March, 187.9, this lease was not recorded, but was only put of record afterwards in April, 1879.

This is the sole fact upon which the exemption of Mrs. Watts from liability is claimed.

It is totally insufficient to sustain such defense. It would give effect to a gross fraud to permit it.

Whatever effect the record of the lease might have had as notice to plaintiffs, is destroyed by the fact that, although the lease antidated, the record thereof was subsequent to the completion of the arrangement with plaintiffs.

But, under the circumstances of this case, the lease is, in any event, of no consequence. The question is not in whose name the plantations were leased, but who cultivated them, and whose business the cultivation was. There is nothing to prevent a husband from permitting his wife, separate in property, to cultivate and conduct for her own account a plantation leased or even owned by himself, when he has neither means nor credit to conduct it, and when, as in this case, the wife had purchased, in execution of her judgment of separation, all the property of her husband, including mules and other essentials for working a plantation.

And if he permits her to do so and she conducts the plantation in her own name and for her own account, as her separate business, she cannot repudiate debts contracted by herself for tíre conduct of such business, and actually used in the conduct thereof.

In the case of Bank vs. Bruff, 33 Ann. 624, we said: The general capacity of a married woman to contract, like all other rational beings of competent age, is restricted only by the necessity of her being authorized by her husband or by the court, and by the absolute prohibition to bind herself for the debts of her husband or of the com m unity.”

Here Mrs. Watts was duly authorized by her husband.

There existed no community between her and her husband, that having been terminated by the judgment of separation.

If, then, she has not bound herself for the debt of her husband, it should seem that her contract cannot be questioned.

How can it be said that the debt here sued on is the debt of the husband. It arises from a contract between Chaffe & Sons and Mrs. Watts. The plaintiffs never contracted with Watts. .They expressly refused to contract with him or to have any dealings with him. It would be absurd for them to claim to be creditors of Watts. Therefore, Mrs. Watts has not bound herself for the debts of her husband.

But it is claimed that it must be shown that the moneys and supplies advanced enured to the separate benefit of the wife.

Admitting this to be true, the record shows that they were actually used for the purposes for which they were advanced, to wit: in the business of cultivating the plantations, which business was represented by both the husband and the wife to be the separate business of the latter, which was conducted in her name and as her business, in all the dealings connected therewith, not only in those with plaintiffs but in those with all other persons, not excepting the landlord himself.

It is perfectly clear that, had the business resulted profitably, she could have held the avails thereof against her husband or his creditors.

Can she, now, by simply saying there was a secret understanding between my husband and myself that this business, conducted in my name and held out and represented to all the world as mine, was really the business of my husbaud, and, therefore, the debt contracted by me was for his benefit—defeat and defraud her creditor?

The proposition is monstrous, It was met in the case of Bank vs. Bruff already cited.

There the wife had become surety for the debt óf a commercial firm of Leo Babin. It turned out that her husband was a silent partner of Babin, which fact, however, was concealed from the party who received the wife’s surety-ship. When this fact was opposed to his recovery, we said, the dealings of the parties “justified innocent third parties to treat Mrs. Bmfi'as contracting to secure the individual debts of Leo Babin, and she is now estopped from alleging that the debts which she intended to secure, were, those of her husband. To release her now from her contract of surety-ship, on the ground of her husband’s interest in the house of Leo Babin, when such connection had been designedly concealed for the purpose of her husband’s fraudulent protection, would be to convert the laws for the protection of married women into means of deluding and insnaring innocent parties into legal pit-falls, and would inaugurate a system of legalized deception and fraud.” Bank vs. Bruff, 33 Ann. 626.

The application is obvious with this difference, that there, the wife had, in point of fact, bound herself for the debt of her husband; while here we are satisfied that the business was, in fact, the wife’s, and would have been maintained as such against any claim of the husband or his creditors.

The doctrine that a married woman is not subject to the law of estoppel is subject to limitations, when she seeks to perpetrate deliberate frauds.

The case just quoted affords one example of such limitations; and in the learned opinion in Henry vs. Gauthreaux, 32 Ann. 1103, the organ of this Court gives other examples supported by exhaustive (¡notations of French and Roman authorities.

The instant case is as strong as could be conceived for the application of such limitations, which are thus emphatically announced by the Chief Justice in the case of Henry vs. Gauthreaux: “ While the law and the jurisprudence have, at all times, favored married women in the assertion of their rights, they have never intended, and do not contemplate, to protect tliem in ihe perpetration oi fraudulent practices by which to enrich themselves gratuitously at the expense of their neighbors * * under the remarkable system of civil law which exists in this State, and in which both law and equity are admirably blended, married women, who have become guilty of fraudulent representations to obtain money, should be held as insuperably estopped from repudiating tlieir conduct, sanctifying their wrongful deeds, and from exonerating themselves from responsibility towards Iona fide creditors.”

This language is, perhaps, even too broad and emphatic; but as applied to the case then under consideration and to the present case, the doctrine is clearly correct.

The pretense here made that the wife only acted as she did under the stress of marital influence, is equally disposed of by the Henry case, where the wife charged that she asted under “ marital threats, coercion and violencebut the court disregarded this on the ground that the only evidence offered to substantiate this ground oi complaint is that of plaintiff herself, unsupported, in any respect, by any corroborating testimony. It is so weak, so open to suspicion, so unpalatable, that it is not entitled to the least weight, particularly as nothing shows that the mortgage creditor had any knowledge of the facts and threats charged.”

The same circumstances exist here; and the conduct of the wife, extending over a series of years, has been too consistent and long-continued to admit of such explanation.

No greater calamity could befall the true interests of married women, as a class, than to maintain such defenses as are here presented; since it would render all dealings with them impracticable and would utterly destroy their power of obtaining credit or conducting business.

One of the most beneficent objects of the laws authorizing separation of property, is to emancipate, not only the property, but also the industry, of the wife from control of an insolvent husband, and to enable her to earn a livelihood for herself and family, free from his debts and embarrassments.

It enables her to conduct business on her own account and for her own benefit. To apply to her transactions in the conduct of such business the. same restrictions which are applied to wives not separated, would be to ignore a chief object of the law in emancipating her from those powerful presumptions under which all the transactions and acquisitions of either spouse are assigned to the legal community of which the husband is the head.

She cannot be permitted to abuse this privilege, by inducing innocent third persons to contract with her on the faith of her own representations that the business which she conducts in her own name and ostensibly for her own account is her business, and afterwards repudiating her obligations upon the pretense that such business was really that of her husband.

A doctrine so subversive of morality and hostile to reason finds no countenance in any decision that was ever rendered by the Supreme Court of Louisiana.

Dissenting Opinion.

Bermudez, C. J.

*This is a suit against a married woman separated in property by judgment, to hold her liable for a series of notes issued by her with her husband’s authority.

The defendant admits signing the notes, but avers that she is not responsible; that the consideration thereof did not enure to her benefit; that they were issued for the advantage of her husband; that she signed them at his request, to assist him in his planting operations.

The record establishes the following facts :

On February 14, 1879, Mrs. Watts addressed a letter to plaintiffs, stating that her husband would visit them to arrange with them to carry on her planting interest for the current year and that he was her agent.

On the 19th following, a written contract was signed by Mrs. Watts jointly with her husband in favor of plaintiffs, whereby it was agreed that supplies would be furnished by advances made for the working of the Mitchell place, owned by Dr. Mitchell, for that year, not to exceed $3800, guarantees being made for reimbursement.

, In February following, a similar contract was likewise signed for that year, (1880) limiting the advances to $1500, with guarantees also.

It does not appear that these were followed by other contracts.

The plantation had been leased on November 30, 3878, for five years by Dr. Mitchell, to Mr. Watts, defendant’s husband, and the lease recorded on April 9, 1879. The annual rent was to be $500 in money and twelve bales of cotton. The lessee was to put up, each year, a tenant house complete, and keep the fences in good order. The crops were to be consigned to the plaintiffs.

It is not dispnted that the notes sued on, dated one in March, 1881, and the others in January, 1882, were issued for supplies and advances and in settlement of open accounts running for some time preceding and including 3882, for both the Mitchell and another place.

Tire proof offered consists of the testimony of Mr. Chaffe, of Mrs. Watts, of Mr. McKay, and of documentary evidence.

The testimony of Mr. Chaffe and that of Mrs. Watts are in distinct conflict, as to what transpired at his office, Mr. Watts being present.

He states that they had a business conversation which ended satisfactorily.

Mrs. Watts affirms that she had no such conversation; that soon after she entered the office, the notes were produced and signed; that she did not know what the agreement was; but that her husband told her it was necessary she,should sign.

It is claimed that Mrs. Watts, on her cross-examination, has so contradicted herself that no weight should be attached to her testimony.

Mrs. Watts merely corrected a statement in her re-examination in chief, touching a few mules adjudicated for her account., at the sale under her fi.ja. against her husband, which took place in 1875.

It does not appear that either of the {daces managed by Mr. Watts was ever leased to Mrs. Watts, or that she administered the same. The written lease in the record was made by Dr. Mitchell to Mr, Watts, more than three years after the judgment of separation, which was signed may 28, 1875.

The sub leases in evidence are signed by Mr. Watts as agent, without naming the principal.

There is nothing to show that Mr. Watts ever accounted to Mrs Watts.

The testimony of Mr. McKay, an employee of plaintiff’s, shows that he paid annual business visits and knew no one but Mrs. Watts in his dealings. Mrs. Watts testifies to the reverse.

The documentary evidence consists mainly of the proceedings in separation of property, of Mrs. Watts’ letter to plaintiffs, of the contracts for supplies and advances, of the accounts, the notes, the lease and sub-leases.

' The whole strength of the plaintiffs is exerted to prove that Mrs. Watts made representations to them that she had leased the property and was working the same for her benefit; that she owned the stock and implements on the places; that on the'faith of these representations, they contracted with her, furnishing supplies and advancing moneys; that she appointed her husband her agent to deal with plaintiffs and manage the places; that he acted as such, transacted business with them, working the plantations aud subletting the same to various parties; that the plantations accounts were kept in Mrs. Watts’ name ; that the traveling clerk, McKay, always dealt with her. It is inferred from this State of facts that Mrs. Watts must be held liable.

The questions arising under the pleading and the evidence are simply as follows:

1. Whethertlie alleged statements and representations of Mrs. Watts are evidence against her, which she cannot gainsay.

2. Whether, from the fact that Mrs. Watts is separate in property from lior husband, the plaintiffs are relieved from proving that the consideration of the notes sued on has enured to her benefit.

3. Whether the plaintiffs have administered that proof.

I.

It has been repeatedly held that, whatever the doctrine of estoppel be, it is inapplicable to married women or their property, when sought to be subjected to liability; that they cannot be deprived of their estate by constructive fraud, and can be concluded only by actual and positive frauds practiced by them on innocent persons who had not and could not have the means of verifying the real condition of things.

The courts have gone so far as to say that special denials would throw on the plaintiff the burden of establishing the facts necessary to fasten responsibility, whether the woman was common or separate in property, that where the evidence did not fulfil legal requirements, recovery could not be had.

Jurisprudence has consecrated the doctrine, that even a confession of judgment made by a married woman in the absence of necessary proof, will not conclude her and is assailable by her. McIntosh vs. Smith, 2 Ann. 756; Patterson vs. Fraser, 5 Ann. 586; Beauregard vs. Husband, 7 Ann. 294; Moussier vs. Zunt, 14 Ann. 15; Bisland vs. Provosty, 14 Ann. 169; Barnes vs. Burbridge, 15 Ann. 628; Medart vs. Fasnacht, 15 Ann. 621; Bouligny vs. Fortier; 16 Ann. 209; LeBlanc vs. Bouchereau Ib. 11; Dancy vs . Martin, 23 Ann. 323; Strother vs. Hamlet, 28 Ann. 839 ; Edwards vs. Edwards, 29 Ann. 597; Coleman vs. Rush, 30 Ann. 1157; Chaffe vs. Oliver, 33 Ann. 1008; Harang vs. Le Blanc, 34 Ann. 635.

The ruling in the case of the Bank of Lafayette vs. Bruff, 33 Ann. 624, however antagonizing with that in 26 Ann. 737, cannot be invoked as having derogated to the doctrine of estoppel, as announced.

There, and in Henry vs. Gauthrearix, 32 Ann. 1103, the parties were inhocent third persons, while such is not the fact as to the plaintiffs jn this litigation.

It therefore follows that whatever the representations or admissions which Mrs. Watts made, whatever the contracts be which she entered into, she is not bound or concluded by them, unless the existence of the material facts be proved by the suing creditor, otherwise than by her declaration. If it were not so, the law might be evaded by a simple change of the form of the instrument. 14 Ann. 15, 169; 7 Ann. 293; 5 Ann. 586.

II.

It will not avail the plaintiffs to discriminate by saying that such may be,-or is the case, where the married woman sued is common in property; but that the law is different as to a woman separated in property.

The effect of a separation of property by judgment (as is the case in tlie present Instance) is simpiy to piit an end to the pre-existing community of acquets and gains between the wife and the husband, and to entitle theTorpaer to the exclusive administration of her property.

The separation of property strips the dotal property of the wife of that character and makes it paraphernal, the fruits then belonging to the wife and no longer to the husband. 8 It. 457; 2 Ann. 771; 13 Ann. 2-

It is settled by a long line of precedents resting on sound principles and wise law, that the fact that the wife is separated in property, does not throw upon her the burden of proving that the debt for which she is sued did hod enure to her benefit. Neither does the same fact estop her from setting up such a, defense by her admission of the debt, before suit.

The law equally protects married women whether (hey are separate or common in property. The judgment of separation does not dissolve the bonds of matrimony, any .more than could a stipulation to that end, in the marriage contract.

It imposes upon parties suing a married woman—whether she be common in property or not—tlie burden of proving that the amount claimed is due by her, and that her estate is liable for its payment, for the reason that it lias enured to her benefit, or to that of her property, which is the same, ■whenever the wife denies having derived any benefit therefrom, or where a default is to be confirmed against her. 12 Ann. 663..

Pascal vs. Sauvinet, 1 Ann. 428; Erwin vs. McCalop, 5 Ann. 173; Patterson vs. Fraser, 5 Ann. 586; White vs. Baillo, 12 Ann. 663; Heald vs. Owing, 12 Ann. 725; Moussier vs. Zunts, 14 Ann. 15; Lee vs. Cameron, 14 Ann. 700; Bowles vs. Turner, 15 Ann. 352; Draughton vs. Ryan, 16 Ann. 309; Barlington vs. Bradley, 16 Ann. 310; Kennedy vs. Boissiere, 16 Ann. 449; Bank vs. Barrow, 21 Ann. 398 ; Hoy & Co. vs. Manning, 25 Ann. 142; Urquhart vs. Thomas, 24 Ann. 95.

The philosophy of the legal requirement so frequently recognized and consacrated, that the party suing a married woman, whether common or separate in property, shall prove that the consideration of the claim has enured to her exclusive advantage no doubt is :

1. That a married woman belongs to the class of persons of limited capacity, assimilated to a minor having no right to contract unless in exceptional cases, specially provided for and forbidden from doing so in other specified instances, R. C. C. 1782, 1790, 2446 ; H. I). 864, No. 7; Demolombe, vol. 4, p. 239, $ 210 ; and

2. That the wife is presumed to yield to marital influence and pressure, and to have done so injuriously to her interest, for the benefit of her Intsband in violation of a prohibitory law. R. C..C. 2398, 2446, 1790.

The law does not discriminate, whether the husband be necessitous or wealthy. A wife can no more bind herself for or with an opulent than she can for or with an impecunious husband.

A fair test in sircli cases is, whether the husband could bo held liable for what is claimed of the wife, had she not bound herself for it. Of course, this test could not apply to exceptional cases, formally and expressly taken out of the rule, where by distinct stipulation the husband is under no contingency to bo held responsible, if the wife were not.

The law relieves a plaintiff from such proof, only where the married woman sued, has been authorized by the judge to borrow, or is a public merchant; but even then, it does not debar her, under proper charges of collusion and fraud, implicating thejlaintiff, from proving circumstances exonerating her from liability. Rice vs. Alexander, 15 Ann. 54; Bank vs. Barrow, 21 Ann. 398; Miller vs. Wisner; 22 Ann. 457; Falcour vs. Stapleton, 24 Ann. 89; Feltus vs. Blanchin, 26. Ann. 401; Reitch vs. Rosselin, 26 Ann. 418; O’Keefe vs. Handy, 31 Ann. 832 ; Hall vs. Wyche, 31 Ann. 734 ; Stapleton vs. Butterfield, 34 Ann. 822, Darling vs. Lehman, 35 Ann. 1186.

Whoever deals with a married woman is, by the very nature of .the transaction, put on his guard. It is incumbent upon him to ascertain that her estate can be charged with the claim. Pilcher vs. Kerr, 7 Ann. 144; Carroll vs. Manning, 24 Ann. 142; Stapleton vs. Butterfield, 34 Ann. 822.

The plaintiffs cannot be heard to question those various propositions of law, which are deeply embedded in our jurisprudence, as not only have they alleged in their petition that the consideration of the notes was for the wife’s benefit and advantage, but also have they undertaken to prove the fact.

ITT.

Tlie third question now presents itself. Have they done so ?

Admit that the evidence shows that the supplies were furnished and the advances made for the working of the two places, where is the proof in the record that the places belonged to the defendant or were leased by her and were administered by her.

The proof shows that the property was leased to her husband in his own name ever since 1878, previous to the furnishing of supplies and making of advances.

Even if the lease had been taken in defendants’ name, by her husband, the question would arise as to his authority for doing so. A lease is a transfer and a purchase of property. It is a dismemberment of property by one in favor of another, for a stipulated time. To acquire property, a special power is necessary. The power which Mrs. Watts gave was that contained in her letter. It was limited to one year and was one of administration only. 13 Ann. 566; 5 Ann. .173, 572; 1 Ann. 428; 18 L. 467.

Had she taken the lease herself, the question would arise whether with the means she then had and which are not proved, and which possibly consisted of what remained of her purchase under her fi. fa. against her husband—whether she could legally bind herself by venturing in a planting operation and leasing property the rent of part of which for five years exceeded six thousand dollars, exclusive of the cost of working the places, the expense of the construction of the building annually to be erected and the keeping in order of the fences on the place.

The law protects all married women equally, whether they be separated or common in property, from the consequences of all wild and ruinous ventures.

In the case of Draughon vs. Ryan, 16 Ann. 309, the Court held that a wife separate or not in property, could not be held liable on a note issued by her for supplies and advances, furnished for the working of a plantation leased by the husband.

The Court said: “It is clear that the note was not given for the improvement or benefit of the paraphernal property of the wife, but simply to enable the husband to work a plantation which did not belong to the defendant. The circumstance that the husband had no separate property of .his own, does not create an obligation on the part of the defendant to satisfy the claim set up by the plaintiff.”

In the ease of Carroll, Hoy & Co. vs. Manning, 24 Ann. 142, the wife was likewise relieved from the payment of a note subscribed by her, the consideration of which was supplies furnished to cultivate a plantation cultivated by her husband.

In the more recent case of Hall & Lisle vs. Wyche, 31 Ann. 734, the wife was discharged from liability, for the price of mules said to have been sold to her and to her husband, to work a plantation alleged to belong to her, as it was not shown that the same was administered by her.

In a case of the present plaintiffs) decided in June last in Monroe, it was held that where a community exists and the husband cultivates a plantation belonging to the wife—the debts incurred therefor, are his and cannot he enforced against her property.

We said that even though the wife has signed lien contracts in favor of the factor for supplies and advances, if the fact he that she had not the administration of her separate property, but her husband, he alone is responsible. 36 Ann. 824-5; Chaffe vs. McIntosh.

The court thus ruled in the several cases on the principle that a wife whether separate or common in property, cannot be lield where the proof does not show that the wife was the owner and administered and that the consideration has enured to iior benefit.

This Court has uniformly taught that whenever any married woman is sought to be held liable, where she denies responsibility, it will disregard the form in which the obligations have been garbed and look into the very nature of the transaction ; that it will require proof that the consideration enured to the benefit of tho wife and in default of satisfactory evidence, would exonerate her from liability.

As to the question of the right and power of a married woman, to acquire property for her separate benefit, whether common or not, this Court has gone very far in the cases of Miller, wife of Jackson, vs. Handy, Sheriff, 33 Ann. 160 and of Chaffe & Sons vs. DeMoss and wife, recently decided. (No. 9357.)

In the last case, the title of the wife, who was separate in property, was maintained, because the evidence showed that the price had been paid by her.

Laurent in his elaborate commentaries on the Napoleon Code, teaches on the best authority, that a wife separated in property has not and cannot he recognized, the right to speculate, to purchase where she lias not the means to acquire. “ Oe sennit, says he, 1/ui ¿farmer le <trail de se miner.” V. vol. 22 p. 310, No. 297; also Nos. 292-300; No. 312 et seq., No. 321 et seq.

In the present instance, let it be supposed that the crops raised on the two places had been seized by the creditors of Mr. Watts, could Mrs. Watts claiming ownership,-bo recognized to be entitled to the same, under the evidence in this case?

Slie could not prove ownership of the land or a lease of it to her.

She could not qirovo that she had the reasonable moans required to venture in the planting undertaking.

She could not prove she administered the property.

She could not prove that the supplies and money were delivered t,o her.

She could not prove a continued sufficient procuration to her husband.

She could not prove accounting to her by her husband.

She could not prove dealings by her with her factors.

In her inability to establish tlie essential facts on which to base a claim of ownership, slie necessarily would fail and the creditors would take.

How then can the plaintiffs in this case claim that she is responsible for supplies furnished and money advanced for tlio cultivation of plantations leased to licr husband and not administered upon by her?

Tlie plaintiffs knew 'they were about dealing with a married woman and were thus put on their guard.

As was said in Pilcher vs. Kerr, 7 Ann. 144: “It was incumbent on them to ascertain that her estate could be charged.”

It would have been easy for them to have ascertained whether she had reasonable means, whether the places were leased to her, before entering into any agreement with her.

The testimony in this case consists merely of that of one of the plaintiffs and of that of their travelling clerk, even if little or no weight is attached to that of Mrs. Watts. The documentary evidence of itself is no proof against the defendant. All her admissions therein should have been verified by proof dehors the instruments.

Tlie plaintiffs should not be permitted to recover tlieir large, claim from the defendant on this insufficient showing.

The judgment appealed from should be reversed and the plaintiffs non suited,


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 9368.
    Harry Lott and Wife vs. The New Orleans City and Lake Rail Road Company.
    The driver of a feed car, running on one of the streets of the city, allowed boys to ride by his sides on the platform, fare free. On their getting troublesome, he ordered them to get off, slackening his car to a mule walk, without touching, throwing off or threatening either. One pushed another, who, losing his balance, fell, slipping under and being crushed by the vehicle, death ensuing later.
    Under such circumstances, the company cannot he held liable. The injury was not the natural and probable result of the driver’s orders, and such an occurrence as he might and ought to have reasonably foreseen. Jtwas the consequence of one for whose acts the company is not responsible, and who, like the injured party, was an intruder on the car.
    A PPEAL from the Civil District Court for tlie Parish of Orleans. ■ \ Houston, J.

      Tj. L. Levy and W. W. Handlm for Plaintiffs and Appellants.

      Hraughn, Buck & Dmkelspiel and W. 0. Hart for Defendant and Appellee.
   The opinion of tlie Court was delivered by

Bermudez, C. J.

The plaintiffs appeal from a judgment rejecting their demand in damages, for injuries sustained by their minor son, who was run over by one of the defendants’ cars, and who died in consequence, the same day. The accident is charged to have occurred by the gross negligence of the driver. '

The record shows that, on the morning of September 12,1882, at about nine o’clock, a feed car belonging to the company, in charge of a driver was coming down Magazine street in this city, when three boys, two of whom had been in the habit of doing so, jumped on the platform in front, taking positions, one, Martin, on the right and the other two, Lott and Babe, on the left of the driver.

They commenced “ skylarking ” and became so troublesome that the driver cautioned them to keep quiet. They stopped a while, but began anew, when slowing up the ear, the driver told them to get off, since they would not behave themselves, using neither threat nor force.

The car was going slow, the mule was on a walk.

The boy Babe, who was on tlie left side, nearer the driver and on the right of Lott or Harry, who, himself, was standing on the extreme of the platform, then told him, “ Hurry up, Iturry -up, yet off Harry,” giving him a push.

Losing Ms balance under tlie shove, Harry grabbed the staunclieon, but imperfectly. Letting it go, he fell, slipping on the sido of the caí-, part of his body getting under and being run over by the vehicle.

Bruised and mangled, the boy was taken up and carried to his home where, after much suffering and lingering, he died some nine hours later the same day.

It appears that Lott and Martin were good boys, smart and active. They were pets of the driver, who occasionally allowed them to jump and ride on his car, thefeed car, for he seems to have driven no other.

They were so alert and experienced that sometimes they would jump on and off the platform before the driver would know anything about it. Lott was about eleven years old and a newsboy.

The fact that he was pushed by Babe is established by Ms own declarations made on his bed of suffering, by the testimony of Martin, his friend; bjr that of Sullivan the driver, and somewhat by that of Babe himself, the reckless companion.

There is nothing to show that the driver touched, threw off, or threatened the boy, or that he was asked io stop fully, or that he had any reasonable ground to believe, when he told the boys to get off, that any of them would be injured in doing so.

The only thing the driver did was to tell them to get off. It was to enable them to do so securely, that he slackened his car to a mule walk.

It is highly probable that, had be been asked to stop, the driver would have done so. The fact is, that the boys did not ask him to stop and did not wait till he had stopped altogether. Martin jumped on one side, Babe pushed Lott or Harry and jumped on the other; Harry fell, was hurt and died. Had he not been pushed, he would have jumped, as his friends did and he would have been no more hurt than they were.

It is manifest that the company never designed the platform on the feed car to be used for the transportation of passengers; that when it entrusted Sullivan with the driving of the car, it gave him only the authority necessary to take it from one i>lace to another; that they did not give him the power of admitting passengers on it; that it was patent that the car was not one for passengers, from its form and structure, which was that of a large box with no side openings and no inside seat; that permission by the driver to persons to ride on the platform was unwarranted; that those who thus got on and rode with him were intruders, as concerned the company, and thus primarily at fault.

It. is likewise ax>parent that the boy Harry fell and was hurt, not because the driver ordered all the boys off, or had not stox>l>ed, but because when he was about getting off, he was pushed by his companion Babe, who like him, was also an intruder.

Had Harry not been pushed, it is indubitable that he would have got off unhurt, not only because he was smart, active, alert, expert at it, as all newsboys notoriously are,—but because the car had almost stopped. His companions got off unhurt.

Considering the age of the boy—eleven years—his experience, his oceux>ation, his known agility, we think he was well able to take pro-X>er care of himself and can bo held to the same accountability as a X>erson of full discretion might be under similar circumstances,

The rules which govern as to mere children do not ax>ply to minors who have attained to years of discretion. Sherman vs. Redfield, pp. 55-56 ; 33 N. Y. 642, McMahon vs. Mayor.

In order to hold the company liable, it must ap[>ear that the injury was occasioned by the negligence of the driver in the exercise of the functions in which he was employed; that it was the natural and probable result of the conductor’s order, such a consequence as he might and ought to have reasonably foreseen at the time; that he had done or omitted an act which was something contemplated by his employment and which, if done or omitted lawfully, would have been done or omitted in his employer’s name.

Haag vs. R. R. C., 4 Norris 85 Penn. St. 293; Cawley vs. Pittsburg R. W. Co., 98 Penn. St. 500; Weeks on. Dam. absq. inj., 10, 320,123, 127,266-7; Wharton on Negl., 300,301; Thompson on Carriers, p. 344^-5; Pearce on Railroads 336 ; Spooner vs. Brooklyn City R. R. C.; Am. Law Reg., N. S. 1, 572, also p. 631; the Hearn case, 34 Ann. 160; the Montford case, 36 Ann. 750; the G-allaher case, 37 Ann. x>--; also the Wood case, 34 Ann. 1086; also the McNeil case, unreported, (O. B. 57 fo. 689 ); also Duff vs. Alleghany Valley R. R. Co., 91 Penn. 458; also Citizens’ R. R. C. vs. Carey, 56 Ind. 396.

We have considered the authorities to which plaintiffs’ counsel confidently refers.

That of Wilton, 107 Mass. 108-110, is a ruling in the case of a girl nine years old riding, without pay, by invitation of a driver on the platform of a street railroad horse passenger car, who, by the sudden start, lost her balance, ordering the driver to stop, the car keeping on. She fell, her arm was run over and had to be amputated.

The other case (Pennsylvania R. R. Co., 31 Penn. 372, 7 Casey) is that of a lad nine years old sent on an errand by his father, who finding a crossing obstructed by a train of ears, attempted to creep under them, when the train started and injured one of his feet, which it became necessary to amputate.

The facts in the two cases are absolutely dissimilar to those in the present controversy. The principles announced in both are simply, that, if a passenger, riding with due care on the platform of a passenger horse car of a street railroad corporation, not as a passenger for hire, but by invitation of the driver and without collusion with him to defraud the corporation, is injured through his negligence in driving the car, the corporation is liable; and that a child of tender years is not to beheld to the same rule of care and diligence in avoiding consequences of the negligence or unlawful acts of others, which is required of persons of full age and capacity.

The third case to which plaintiffs refer (24 Smith 424) is one in which a little girl fimo years old was allowed to ride on the platform of a stree ( passenger car and who was hurt in attempting to get off, notwithstanding the driver’s remonstrance. Pittsburg P. R. W. Co. vs. Caldwell, 74 Penn. St. 421.

The court held it was negligence in the driver to allow children so young to ride on the platform, and the company was liable.

Conceding to those authorities all the weight which is claimed for them, it is clear that they are inapplicable to the present case, in which the facts proved are quite different, although kindred principles imiy he involved and receive application.

The ruling invoked in the Wardle case, 34 Ann. 204, has no hearing on the issues here presented.

The district judge correctly viewed the facts aucl the law and property relieved the companjL

Judgment affirmed with costs.


author: Roché, J. Bermudez, C. J. Todd, J.

text:
    No. 9382.
    Succession of Thomas J. Martin vs. Succession of Philip Hoggatt.
    The delay of two vear%.grantod to non-residents for the purpose of appealing from a judgment rendered by the courts of this State, under the provisions of Article 593 of the Code of Practice, is not affected by the death of the non-resident who is oast in a suit ; but this right, like all others, is transmitted to h;s legal representatives, even though his succession is administered in this State by a resident admistrator.
    The provisions of that article apply as well to plaintiffs as to defendants who are non-residents.
    The attempt of a district court to annul a judgment of the Supreme Court, is a most dangerous usurpation of authority which cannot and will not be tolerated in this State.

      APPEAL from the. Eighth District Court Parish of Madison, .Deloney, J.

      Wade Tí. Young and James T. Goleman for Plaintiff and Appellant.

      John B. Stone and J. G. Katolces for Defendant and Appellee.
   The opinion of the Court was delivered by

Roché, J.

Before his death, Thomas J. Martin obtained in this Court a moneyed judgment against the defendant succession, in solido, with another defendant, on a lease-bond signed by Philip Hoggatt as surety.

On the 15th of May, 1882, he proceeded by rule in the district court for the enforcement of his judgment and for a sale of succession property j he was met by an answer setting up the absolute nullity of his judgment. The plea was maintained and his rule was discharged by a judgment rendered on January 12, 1883.

On the same day, through his counsel by motion in open court, he obtained an order of appeal from said judgment.

On the next day, January 13, he died in Louisville, Kentucky, the place of his residence.

On the 19th of the same month, a judgment was rendered rescinding the order of appeal of the 12th, on the ground of his alleged acquiescence in the judgment appealed from.

An appeal under a bond executed by his attorney was subsequently brought up to this Court, and was stricken from our docket for the reason that he was dead and his succession unrepresented. 35 Ann. 386.

A. W. Crandell, in his capacity of administrator of the subsequently appointed succession, then applied for an 'appeal from the two judgments, of January 12th and of January 19th, but obtained an order from the latter only. That appeal resulted in the reversal of the judgment of January 19th, which purported to rescind the order of appeal of January 12th, obtained for Martin the day before his death. 36 Ann. 337,

On the 2d of October, 1884, A. W. Crandell, administrator, obtained an order of appeal from the judgment of January 12, 1883, on a petition, in which he recited substantially the foregoing facts, and in which he averred that the appeal taken for Martin before his death had lapsed, but that as a non-resident the latter was legally entitled to au appeal, if applied for within two years of the rendition of the judgment.

The grouuds of the motion to dismiss that appeal are:

1. Want of capacity of Crandell to prosecute the appeal, on account of his failure to produce the evidence of his appointment and of his qualification.

2. The prescription of one year in bar of the right of the succession to appeal.

The first ground of the motion is easily met by the suggestion that it is urged too late and not in the proper tribunal. It should have been urged in the district court where Crandell obtained his first order of appeal, of January 14, 1884. The remedy was by a motion to rescind the order of appeal, on the ground now urged here. It would have presented an issue under which evidence Could have been produced and discussed between parties.

But in the order of appeal of January 14, 1884, Crandell was specially recognized by the district court as the administrator of the Martin succession, and formally authorized to prosecute the suit of Martin vs. Succession of Hoggatt. Hence we conclude that the objection comes too late, and is frivolous.

The second ground involves two propositions; the first, that the delay for appealing granted by Art, 593, Code of Practice, to non-residents, applies only when they are defendants. The best answer to that argument is the text of the article ; it makes no distinction between one class of non-residents and another, and the courts can make none. The argument, showing the reasons for the distinction, might be proper on a proposed amendment to the article; it can have no force in a court of justice. Beaird vs. Russ. 34 Ann. 315,

The second propositon rests on the argument that the succession of Thomas J. Martin, as represented by Crandell, is a home succession, and hence it cannot claim the’rights of non-residents under Article 593 of our Code'of Practice.

. If Martin was yet alive, his right to appeal within the two years could not be questioned. Are we to hold that because his estate has been admitted to administration in the parish of Madison, his succession has been stripped of any rights which he could claim if living ? The mere statement of the proposition is its best ^refutation. There is no more reason in the contention that Crandell is, in the language of the article, “the party claiming the same,” and that as a resident he cannot invoke the additional delay for appealing. The application is made in his'representative capacity, and it is in fact and in law the appeal taken by the succession of Thomas J. Martin, to which his right to the’ delay of two years has been transmitted. Personally, Crandell could not appeal in liis own right; in these proceedings he is the mere instrument of the succession.

The identical position now occupied by the defendant was assumed by the appellee in the case of Krauster vs. Bank, 12 Rob. 456. He was answered as follows:

“The petition of appeal, it is true, is in the name of the attorney appointed to represent the bank, but he alleges that the error in the judgment is to the prejudice of defendants. We do not look so much to the form as to the substance, and no one can hesitate in saying that' the appeal is that of the bank. The attorney as such has no such interest known to us as will authorize him to appeal separately from those he represents.”

If Martin was yet alive, and represented in Madison by an attorney in fact of that residence, it is evident that the appeal taken by the attorney in fact would be Martin’s—just as the present appeal taken by Crandell, who is the agent of the succession of Martin, with its domicile in Louisville, Kentucky, is the appeal of the succession.

The motion to dismiss is, therefore, overruled.

On the Merits.

The attitude of the case simply presents the spectacle of a district court annulling the judgment of the Supreme Court. Is there any need of arguments or reference to authorities to demonstrate the presumptuous folly of such a proceeding? As well, and with as much grace, could a justice of the peace in the parish of Madison attempt to annuli a judgment of the district court of the parish.

The coolness with which counsel for appellee claim that power for the district judge in the premises, can only be equalled by the boldness with which the judge entered into the spirit of the venture.

The feat had not been attempted since the year 1830, when it was conceived in the case of Melan§on’s Heirs vs. Bronssard, 2d La., p. 9. Although the nullity was sued for in a direct action, and not collaterally as in the instant case, our predecessors disproved of the scheme in a very summary manner. The Court said: “The legislature has not given jurisdiction to the district court, and it cannot assume it.” To a suggestion that there was error in one of our final judgments, made in the case of Turley vs. Dreyfus, 35 Ann. 510, we answered: “We find no reason to question the correctness of our conclusions on the subject; but were it otherwise, our decree is final and beyond review—so far 'as it affects the rights of the parties to this cause. Arguments, now made, assailing its correctness come too late and need no further notice at our hands.”

In the present case we are thoroughly satisfied of the correctness of oui judgment which has been so unceremoniously assailed, but under a p roper sense of our duty, we must decline to enter into the arena for the purpose of defending its legal existence.

11 is, therefore, ordered that the j udgment appealed from be annulled, avoided and reversed, and that this case be remanded to the lower court for further proceedings according to law and to the views herein expressed; costs of appeal to be paid by the defendant succession, costs below to abide the final determination of the cause.

Todd, J. dissents from the decree overruling the motion to dismiss.

On Application for Rehearing.

We have given due and respectful consideration to the earnest application to re-open this case. After a thorough examination of the jurisprudence bearing on the two points in the controversy, we have concluded to adhere to our original decree.

The question involving the power or mode of reviewing a final judgment of this Court, on the ground of its alleged absolute nullity, is one of great delicacy and of no less importance, which is not provided for by legislation, and which has not often been considered in our jurisprudence.

Strong arguments may be urged in favor of either side of the question, and equity might suggest the propriety of such a review, and might be enhanced by proper legislation on the subject. But under no possible circumstances could a judgment of this Court be reviewed by a district court in the manner proposed in the present instance. The identical ground of nullity on which our judgment was held to be of no force by the lower court, had been suggested in bar of plaintiff’s right of recovery, had been considered by us, and disposed of as insufficient for the end proposed by the defendant.

That element of nullity was therefore no longer an open question, and could not be considered as an oversight of the appellate tribunal. The claim that such a point could subsequently be reviewed by the court a, qua, involves the exercise of a power which cannot be lodged in the lower tribunal, and its new recognition, as urged herein, would soon revolutionize jurisprudence, and strip the judgment oí the courts of final resort of that force and certainty which can alone make them efficient.

The application for rehearing is theiefore denied.

Concurrent Opinion.

Bermudez, C. J.

The refusal of the rehearing leaves the judgment rendered intact. That judgment reverses that appealed from and remands the ease for further proceedings.

The controversy is on a rule for the sale of succession property to satisfy a claim recognized by judgment of this Court. The defense is that this judgment is an absolute nullity.

Without assigning any reasons, the district court dismissed the rule. The judgment thus rendered was reversed, because that court had no jurisdiction to annul a judgment of this Court, and not because the judge had ruled erroneously on the validity or invalidity of the judgment attacked.

Further examination shows that, after the answer had been filed to the rule charging the nullity of the judgment, the plaintiff in rule moved to reinstate the case for trial, in which, on appeal, this Court, rendered judgment against the succession of Hoggatt. The judgment appealed from was rendered after this motion had been made.

That motion apparently implied an admission of the nullity of the judgment of this Court by the party in whose favor it was rendered.

In the face of such admission, the district judge could not arrive at a conclusion different from that which he reached in dismissing the rule, which was based on a judgment the nullity of which the plaintiff therein had thus admitted.

As it does not appear from the record that the district judge has annulled a judgment of this Court, and as the case is remanded, an opportunity will be offered him, on the trial of the rule, to state the reasons justifying his course.

I am not ready to subscribe to the proposition that a district court can in no conceivable contingency either annul or treat as null a judgment of this Court.

I think that where a judgment of this Court is an absolute nullity on the face of the record, the party aggrieved thereby is not left without adequate remedy to be relieved from its effect.

I therefore concur in the decree refusing the rehearing, not because a district court has no jurisdiction to annul a judgment of this Court in a proper case and in a proper proceeding, but because that decree produces the effect that the rule to sell property, etc., is remanded to the lower court for further proceedings and an opportunity is thus offered to the district judge to adduce reasons in support of his action,

Disserting Opinion.

Todd, J.

I think a rehearing should be granted in this case.

I am satisfied that, where a judgment of the Supreme is an absolute nullit3r, a district judge has the power and authority to so declare i t in a proper proceeding.

In this case there was a rule taken to cause the sale of the property of Hoggatt’s succession to pay a judgment of the Supreme Court against said succession.

The rule was opposed on the ground that said judgment was absolutely null. The issue touching the alleged nullity was thus directly raised and not in a collateral manner, and if this nullity was apparent from the face of the record of the proceedings in the case, the judge had not only the right, hut was bound so to declare it. I think this proposition is supported by the decision of this Court in the cases of Edwards vs. Edwards, 29 Ann. 597 ; Grivot vs. State Bank, 31 Ann. 468; Walker vs. Baretti, 32 Ann. 1159.

I am further satisfied from a critical examination of the record referred to and which was before the judge of the first,in stance, that the judgment sought to be enforced by the rule in question was an absolute nullity and was properly so declared.

I therefore dissent from the refusal of the majority to grant a rehearing of the case.


author: Todd, J.

text:
    No. 9222.
    Succession of Colin J. Nicholson on Opposition of St. Anna Asylum.
    Ail executor is, in effect, liut tlie mandatory of the testator touching the dispositions of the will. He must, in the exercise of his functions thereunder, conform to its terms and directions. So where he is instructed to pay a stipulated sum to any asylum he may select “especially devoted to the care of aged persons,” he is not authorized to give it to an asylum devoted hy the terms of its charter, “to the relief of destitute females and helpless children” and cannot he compelled to do so.
    APPEAL from the Civil District Court for the Parish of Orleans, Lagarus, J.

      F. I[. Farrar, Blanc <& Butler and Merrick, Foster <& Merrick for the Asylum, Appellee.

      Singleton, Browne & Ohoate for the Executor aid Legatee, Appellant.
   The opinion of the Court was delivered by

Todd, J.

The St. Anna’s Asylum claims a bequest of $5000 under the last will of Colin J. Nicholson, deceased, and institutes a proceeding against John T. Hardie,executor of said last will, to enforce the recognition of its right to and payment of said beqnest.

The clause of the will under which the claim is made reads thus:

“To the support of asylums in the faitli of the Protestant religion, especially devoted to the care of aged persons, $5000. This, or these, as the case may be, to be located in the city and parish of Orleans, and I leave to my executor the selection of such institution or institutions.”

The executor resists the demand, and retains the sum named in his hands for the following reasons, which we Arid embodied in his final account and which is reproduced in his answer to the present suit, to-wit:

“I have not paid the legacy bequeathed to the support of asylums in the faith of the Protestant religion, especially devoted to the care of aged persons, $5000, this, or these, as the case may, to be located in the city or parish of Orleans, La., for the reasons that there are no asylums of the kind indicated located in the city or parish of Orleans.”

The sole question 1or our determination under the pleadings is, whether or not the St. Anna’s Asylum comes within the terms and conditions of the will, and is or not entitled to receive the legacy in question.

We find that the St. Anna’s Asylum was chartered by an act of the General Assembly passed in 1853.

The title of the act is: “An Act to incorporate the St. Anna’s Asylum for the relief of destitute females and helpless children of all religious denominations.”

The first section of the act reads :

“That all persons who are now me'mders of said association aud such other free white persons as may, in accordance with tire provisions of this charter, be hereafter associated with them are hereby created a corporation under the title of the St. Anna Asylum] for the relief of destitute females]aud lielpless]children of all religions]denominations,” etc.

We know of no better guide for ascertaining the character of an incorporated institution as the'objects of its organization and the purpose or purposes to whicii it ¡¡is devoted, than the provisions of its charter. In fact to the charter alone must we look for information on these points.

The acts of the officers or members of such association, even through a series of years, cannot impart to it a different character or different purpose than that declared and fixed by the. charter.

We must presume that all acts and proceedings are in strict conformity with the law that created it, and if they are not, they are powerless to establish a different institution with other objects and ends than warranted by the terms of the creative act.

With such elementary principles to guide us, the question before us becomes of easy solution.

The testator directed $5000 to be paid to an asylum or asylums “especially devoted to the care of aged persons.” Was the executor under such direction, authorized and required to pay the amount to an institution established expressly and solely for the relief of “destitute females andhelpless children'?” We are constrained to answer this question in the negative.

An executor is, in effect, but the mandatory of the testator. The will is his mandate. He has no power and is subject to no duty except within its terms and conditions. The testator in this instance evidently and beyond question wished to relieve by his charity persons needing care and attention in their old age, and he exacted that for aiding such persons, the means of relief placed in the hands of his executor should be strictly applied. We cannot possibly gather from the will, by any rule of construction, that it was the testator’s desire that his bounty should be bestowed on any other class of persons.

Hence, if with such plain direction before him, the executor instead of devoting the fund to help the aged, should cause, it to be applied to the relief of destitute females, regardless of age, and helpless children, it would seem that so far from actingwithinthewarrantof his authority he would contravene the very letter and spirit of it.

It may bo true that the St. Anna Asylum has under its care a number' of aged females; however, this is but a mere incident in its administration. The will required that the asylum to be selected by the executor should be especially devoted to the care of the aged; that is, that its chief, main, if not exclusive, object should be to provide for this class of persons. It might, moreover, be reasonably inferred that the evident intent of the testator from the expression “aged persons, ” was to extend his benevolence to the aged of both sexes ; that if he intended to confine it to women exclusively, he would assuredly have used words to show such limitation. We learn from the testimony, as might be inferred from the charter, that aged men are excluded from the asylum.

Under these views it becomes unnecessary to determine whether this asylum is a Protestant asylum, or, in the language of the will, one in the faith of the Protestant religion; for, since it has failed to establish one of the conditions under which it could claim tlie legacy, it would not help it, even were it shown that it fulfilled the other requirement.

There was some discussion between counsel touching what should be done with the fund should the plaintiff be deemed not entitled to it. Evidently this is no concern of the Asylum. Being without interest it cannot contest any disposition of it that has or may be made by the executor. Nor have we anything to do with the question raised with respect to the discharge of the executor and the homologation of his account. The rejection of plaintiff’s claim leaves all such matters relating to the succession of Nicholson in statu guo.

The judgment which was in favor of the asylum must be reversed.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and that the demand of the St. Anna Asylum be rejected with cost in both courts.

Rehearing refused.


author: Manning, J.

text:
    No. 9183.
    New Orleans, Baton Rouge and Bayou Sara Packet Company vs. John J. Brown.
    "When a motion is made for a continuance in this court accompanied by a writing purporting to be an order or consent of the opposite party thereto and the counsel of the latter alleges that such writing has been improperly obtained, tbe motion and writing submitted therewith will be sent to the lower court with directions to take testimony on the matter and return the samo to this court,
    A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      F. H, Farrar for Plaintiff and Appellee.

      Singleton, Browne & Clioate for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The counsel for the plaintiff who is appellee filed his brief and an order to the clerk to submit the case. The counsel for the defendant did not file a brief but made a motion for a continuance accompanied by a sworn statement, that at a meeting of the Directors of the plaintiff company attended by all of them, three in number, held on the 16th. of the present month, resolutions were unanimously passed directing the treasurer to pay Mr. Parrar his fee in this case and authorizing him to continue it.

The plaintiff’s counsel insists that the case h'e heard and decided on his submission and denies that any lawful and proper authorization has been given for its continuance, or avers that the authorization appearing in the resolutions has been obtained improperly.

We cannot investigate the matter here. Evidence must, necessarily be taken by the lower court to ascertain whether a continuance is ordered or authorized by the plaintiff who has a judgment for over eight thousand dollars and who has prayed an amendment for ten per centum damages for a frivolous appeal.

It is therefore ordered that copies of the motion for continuance and of the statement and affidavit of the Directors of the plaintiff company be transmitted to the lower court which is hereby directed to take testimony for the purpose of ascertaining whether a continuance was properly authorized or authorized in fact, and also touching all matters connected therewith and return the same to this court speedily.


author: • Fenner, J.

text:
    No. 9384.
    John I. Adams & Co. vs. Samuel Friedlander.—Adams Kellogg, Intervenor.
    The transfer of a judgment “ so far as the same now remains unpaid," with subrogation to , existing rights against the person and property of the debtor, does not authorize the transferee to assail prior contracts of the original judgment creditor, under which, for due consideration, certain property had been released from the judicial mortgage resulting from the record of the judgment; nor does it subrogate the" transferee to the rights of the transferrer to complain of non-compliance with alleged terms of such extra judicial contract. In any event, the transferree could not judicially claim the nullity of such contract withou making both paities thereto parties to his suit.
    Where antecedent tender is required, amere written communication demanding the cancellation of a contract and expressing the willingness to return what had been paid, when not actively declined or refused, is not a substitute for the tender itself or an ex-n cuse for not actually making it.
    APPEAL from the Eighth District Court, Parish of Madisou. Baloney, J.

      Wade jB. Young for Plaintiffs and Appellants.

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

• Fenner, J.

The Importers and Traders’ National Bank of New York, as holder of notes of Temple S. Coons endorsed by John I. Adams & Co., recovered judgment against Coons for $5507.58 in the U. S. Circuit Court, which was recorded as a judicial mortgage on the property of Coons, in Madison parish, on May 30, 1879.

In May, 1881, the bank recovered a judgment against John I. Adams & Co. as endorsers on the same notes for $2674.00, being fifty jper centum of the amount due on said notes, to which the solidary liability of Adams & Co. had been reduced by the terms of their composition proceeding in bankruptcy. The amount of this judgment was paid by Adams & Co.

The judicial mortgage resulting from the recordation ■ of the judgment of the bank against Coons rested on two plantations of the debtor in the parish of Madison, the ‘•'Richmond” and the “ Killickrankie” plantations, upon which Samuel Friedlander also held a judicial mortgage.

Under a sale made in execution of his judgment, Friedlander had become the purchaser of “Richmond”, subject, however, to the judicial mortgage of the bank.

The title to “Richmond” was clouded by certain conflicting claims which it was necessary to clear away, and a written agreement was made between the bank and Friedlander, in March, 1882, by which the former was to forbear from foreclosing its mortgage until the title was cleared, and, upon such clearing, to accept from Friedlander the sum of $2500 in full satisfaction and release of its judicial mortgage on “Richmond”, reserving the right to proceed for satisfaction of the balcmee of its judgment' and mortgage against any other property subject thereto.

In February, 1883, in pursuance of above agreement, the title having been cleared, the bank accepted the $2500 from Friedlander and executed a written release of its mortgage on “Richmond,” with the reservation aforesaid against other property, and the mortgage was, accordingly, actually cancelled, as against “Richmond,” on the'Recorder’s books.

After all the foregoing transactions, in March, 1884, the bank transferred to John.I, Adams & Co., the i>resent plaintiff, the judgment held by it against Coons, without reference to the release of the mortgage against “ Richmond,” which had been previously executed or to the payment of $2500 by Friedlander; but the transfer is carefully limited to the judgment, “so far as the same now remains unpaid,” and to the bank’s rights-in the premises, whether against said Temple S. Coons, or any property on which said decree may be a lien or judicial mortgage and against any other person.”

John I. Adams & Co., the present plaintiff, is an entirely distinct firm, in every respect, from the firm of the, same name which had endorsed the notes of Coons, and against which, subsequently, the bank obtained judgment, and which had satisfied that judgment.

The present action is brought to rescind the agreement between the bank and Friedlauder, as to the release of the mortgage of “ Richmond,” and to compel Fiiedlander to accept a return of the $2500 paid by him, and to reinstate the released mortgage.

The complaint is, that the written instruments touching the release, do not contain the whole agreements between the parties; but that, there were other oral stipulations, with which Friedlauder had bound himself to comply and which he had violated.

We do not find it necessary to particularize further the nature of these allegations; since, it is plain, for several reasons, that plaintiff has no right to maintain this action, viz :

1. The agreement was between the bank and Friedlauder. The plaintiff was neither party nor privy to it; and whatever rights to attack it, might have inhered in the bank, there is nothing to show that such rights have been transferred to plaintiff; which has simply acquired the judgment as it stood, at date of transfer in 1884, after the agreement for release had been fully executed, and the transfer of the bank’s rights under the judgment did not include its rights to attack the executed release which arose from an extra judicial contract.

2. It seems too clear to admit of dispute that if plaintiff had anterior rights, as claimed, which were injured by the bank’s dealing with Friedlauder, giving it the privilege, in its own right, to attack and annul the contract, it would be absolutely essential to make the bank a party; which has not been done.

3. It is a case in which antecedent tender of the sum paid by Fried-lander, would be a condition precedent to the action. Such tender has not been made and the communications expressing a willingness to make such payment, not answered or expressly declined by Fried-lander, cannot operate as a substitute for actual tender or as legal excuse for failure to make it.

If we entered into more visceral questions, our solution of them would be equally fatal to the case of plaintiff; but the foregoing axe sufficient to sustain the judgment,

Judgment affirmed,


text:
    No. 9402.
    The State ex rel. John A. Campbell vs. O. B. Steele, Auditor.
    A mandamus lies to compel the State auditor to issue Ms warrant on the State treasurer for tho payment of a valid claim recognised bylaw, to meet which, an appropriation was inade by the legislature.
    The holder of such claim is authorised to rofuso a warrant drawn against a general fund to tho credit of a particular year; when the law directs payment to him from any money in the treasury not appropriated, and when there is not money enough to the credit of that fund, for that year, to satisfy that warrant.
    •Such holder can require the auditor to issue to him another warrant on the treasurer, to bo paid out of tho general fund at the time in the treasury, unappropriated, and to tho credit of another year, out of which it can he paid.
    Tlie State auditor has no authority to restrict the pavment of tho holder of such claim, to the general fund of a particular year, out of which il could not be paid.
    Under the terms of the concurrent resolution of the General Assembly, Tifo. 124, adopted subsequently to Aef* 2So. 23 of 1884, the^eneiidaries therein named are entitled to a distribution among themselves, only of tho surplus or residua of tho general fund of 1883, remaining after payment of the claim recognined by Act 23 in favor of tho relator; which makes the necessary appropriation, to meet the same, out of money at tho time in the treasury.

      fa PPEAL from the Seventeenth District Court, Parish of East Baton .jljL Rouge. .Burgess,,!.

      Alfred OoldthwaHe and T. L. Bayne for the Relator find Appellee.

      M. J. Cunningham, Attorney General, for Defendant and 'Appellant.
    TEw. _-L Seay for the Intervenors, Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

The relator avers that lie holds a valid claim against the State, to meet which the legislature has made an appropriation directing its payment out of any money in the treasury, not appropriated.

He complains that the State auditor refuses to issue in his favor a warrant for the amount thereof, 025,145.50, to be paid from tho general fund of 1883, their being sufficient money in the treasury to satisfy the same.

The auditor denies the light of the relator to such . warrant. He avers that the money to which the relator refers is not in the treasury; that, if it were, it would, like the other money therein, bo subject to superior claims which would absorb it.

An intervention was filed by certain police juries, setting forth a claim of 020,000, to be paid out of the surplus of the general fund of 1883 and of other years, under a concurrent resolution of the legislature of July 10, 1884. The intervenors deny tlic relator’s right to be paid as claimed.

From a judgment making peremptory the mandamus sought by the relator, both the State auditor and the intervenors have appealed.

The claim of the relator is a valid claim.

By Act No. 28 of 1884, the legislature authorized the Governor to draw his warrant in favor of the relator for the sum of $25,145.50, to be paid out of any money in the treasury not appropriated.

This sum was allowed to be in full of all demand for professional services rendered by the relator, as counsel engaged to represent the State before the Supreme Court of the United States, in the suit against her by the States of New Hampshire and New York and in other suits in that Court and in other courts, relative to the Debt Ordinance of 1879.

The act was approved July 3, 1884, and was promulgated the next day.

On the 8th following, the Governor issued his warrant addressed to the auditor, directing him to pay to the relator the sum in question in accordance with Act 28.

The auditor offered a warrant against the general fund of 1884, which was declined, as it would not be paid in full, the relator claiming that the warrant should be drawn against the general fund of 1883, unappropriated, out of which the same conld be paid in full.

The validity of the claim being thus clearly established, the next question which arises is whether an appropriation was made for its payment, and if so, what is that appropriation.

In the case of State vs. Bordelon, 6 Ann. 68, the meaning and purport of the word “ appropriate ” was inquired into, ascertained and announced.

The Court asked:

“What is the meaning of the word appropriated” It is to allot, assign, set apart, apply anything to the use of a particular person or thing or for a particular purpose. This may be done without using the word “appropriate,” and this act certainly does assign, allot and set apart a certain portion of the public moneys, not otherwise appropriated and directs the said portion to be paid to particular persons for a given purpose. There are no formal words required to be used in an appropriation bill. The constitution has not undertaken to direct what technical language shall be employed. This has been wisely left to the legislative power, and they seem to have exercised that right in this instance in such a manner as to leave no doubt as to what they intended to do or of what they did. The language of this act must therefore be regarded as fully sufficient to constitute, an appropriation.” See Stratton vs. Green, 45 Cal. 149.

What the previous court then said we now reiterate as well applicable to the present matter.

Act 28 palpably recognizes the claim of the relator and orders it to be paid “from any money in the treasury, not appropriated.”

It was passed while there was enough money in the treasury to pay it, and before any appropriation of it to any other object to prevent or impair its payment.

The General Assembly most probably understood,the exact condition of this fund then and employed the language used in the act to cause its application to the admitted indebtedness.

The words of the act are entirely sufficient to accomplish this end, by charging that-fund and any other fund in existence with a reserve for that purpose.

The legislature did not propose to postpone the payment of the claim. They contemplated to have it paid from any money in the treasury which had not been previously specifically destined, set apart or appropriated for another object.

The relator further averred that there was, and there is still, money in the treasury out of which his claim can be satisfied in full.

It is admitted that the remitted interest of 1879, retained in the treasury by the services of the relator, amounted to $323,167, and that on the 10th of May, 1883, there was transferred from the same to the general fund of .that year $25,671.90. It is also admitted that at the time the warrant offered by the auditor was declined, there was $124,000 in the treasury to the credit of the same fund, which, on the day of trial (October 22, 1884) had been reduced to $37,000. It however appears by the treasurer’s account, dated that day, that there was to the same credit a cash balance of $38,815.45 in the treasury.

It is therefore quite clear that, when Act 28 took effect, July 5, 1884, there was in the treasury $25,145.50 of the remitted fund of 1879, transferred on May 10, 1883, enough to pay relator.

The question of identity of the funds is not material for the determination of this controversy.

The fact is, that there was in the treasury, at the date of the act, a large amount of money to the credit of the general fund of 1883, and that part of it was appropriated by the legislature for the benefit and: relief of relator, the balance remaining subject to subsequent appropriations.

The State auditor has no authority to restrict the payment of the relator’s claim to the general fund of any particular year out of which it could not be paid.

We do not think it necessary to notice the intervention further than to say that, whatever the rights be which the intervenoi’s claim under the concurrent resolution of the General Assembly, on which they rely, they cannot assert any demand entitled to priority or precedence over that 'of the relator.

The resolution directs the transfer only of the surplus of the general fund of 1883, for distribution among'the beneficiaries mimed, that is, the excedent of that fund on hand, on the day on which the resolution was adopted, after deduction from the general fund of the amount of the relator’s claim, as approved and ordered to bo paid out of any money in the treasury, not otherwise appropriated, on the 3rd of July, 1884.

Their rights, whatever they be, extend only to the residue, after payment of the relator.

The record does not show that any one else claims priority over the relator and there is no evidence of the existence of any claim superior to his, for payment out of the general fund of 1883.

It is therefore ordered and decreed that the judgment appealed from be affirmed with costs.___________


author: Todd, J. Beejiudbz, C. J. Fenner, J. Poché, J. Fenner, J. Bermudez, O. J.

text:
    No. 9227.
    Louis Fishel vs. Armand Mercier.
    Where a tax-sale has been declared a nullity, the purchaser at such sale is entitled to reimbursement of the capital, interest and penalties he has paid, unless where the assessment of the property was radically defective or other essential legal requisites not complied with, in which last case only the principal and interest of the taxes paid can be recovered.
    ‘Whatever presumptions in favor of tax deeds may attach under the provisious of the Constitution, they have no application to tax-deeds which have been decreed null and void. In order to recovor penalties paid under a void tax-sale, the plaintiff must prove the validity of the assessment, and having failed to malee such proof, his claim to that extent is non-suited.
    A PPEAL from the Civil District Court for the Parish of Orleans. f\ Tissot, J.

      JBraughn, Bucle <& JDinlcelspiel for Plaintiff and Appellant.

      F. Miehinard and 0. McBae Belph for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff purchased at tax-sale, certain real property ■of the defendant, situated in the city of New Orleans. After his purchase and the confirmation of his title by the State Auditor, he instituted a suit in the U. S. Circuit Court for the possession of the property.

The result was that the tax-sale was decreed a nullity, and he failed to get the property.

Thereupon he instituted the present action to recover the taxes,, penalties, costs, etc., lie had paid out as the price of the property at this illegal sale.

The answer of the defendant, who is the original owner of the property, is substantially the general issue and the averment that he was not at all-benefited by the sums expended by the plaintiff, and that he, plaintiff, had no right to demand restitution of him for the same.

Prom a judgment rejecting his demand the plaintiff lias appealed.

We see nothing- in this case to distinguish it from several others, wherein the present court lias held that parties in consmüi oasu were entitled to recover from the owner of property, whose taxes they had jiaid, the, amount of the same.

The right to restitution results from the fact that it is the duty of every citizen of a State, to contribute to the payment of the lawful expenses of the government, and the taxes assessed against him represent his proportion of such required contribution, and if ho fails to discharge this duty and suffers another to make the payment for him without realizing any consideration for his disbursement, that he can look to the delinquent taxpayer and owner for reimbursement.

It is not claimed in this instance, that the property in question was exempt from taxation ; nor that it was not regularly subject to assessment during the several years that lie, defendant, failed to pay the taxes. The defendant, however, insists that there is no sufficient proof in the record of the assessment of the property and of the amount of taxes due thereon, and that plaintiff should have produced the original rolls or abstracts therefrom to establish such facts.

In the deed of the tax-collector to the plaintiff, we find a full recital of the proceedings, under which the sale was made, that the assessment was in the name of the owner, the adjudication of the property first to the State, the amount of taxes assessed and due for each year,, the statement of the penalties, costs, etc. This deed was received in evidence without objection, and was sufficient proof of the facts recited particularly, there being no opposing evidence offered and no-issue raised touching the said recitals.

In cases where the assessments were shown to have been absolutely void in fixing- the amounts to be reimbursed to the purchaser, we have not allowed him the penalties, costs, etc., for the reason that they were incurred or charged in proceedings absolutely null for want of a legal assessment. Stafford vs. Twichell, 33 Ann. 520; Hopkins vs. Daunoy, Ib. 1423; Davenport vs. Knox, 34 Ann. 407; Hickman vs. Dawson, 35 Ann. 1086.

In the case, however, of Wedcrstrandt vs. Frclian, 34 Ann. 705, which was a case identical with this, where the sale had been annulled because made during the time when tax sales were prohibited under under the provisions of Act 7, Extra Session of 1875, the taxes, penalties, etc., paid were re-imbursed the purchaser. In our judgment we shall follow that precedent.

We quote from that decision to show the reasons on which it was founded.

“The title of an act to relieve delinquent tax-payers from the payment of penalties in certain cases” is sufficiently broad to include the casos in which delinquent tax-payez’S would pay the principal on the amount of their taxes-on or before the 1st of November, 1875, to whozn in such cases, all interest and pezialties would be reznitted. '* * As it appears from the record that plaintiffs made no effort to settlo their taxes on or before the 1st of N ovember, 1875, on the property, the ownership of which they claim not to have been divested by the tax sale, they are not entitled to the benefits conferred by the Act of 1875 and are bound to defendants for all costs and penalties to which the property became liable under the very legislation invoked by them.”

The sale of the property in that case was made on the 25th of October, 1875, and the adjudication to the State in this bears date the 30th of August, 1875 ; and in this case, as in that, there is no proof that defendant owner-of the property made any effort to settle the taxes on or prior to the 1st of November, 1875.

It is argued that, izz zio event, can the taxes and penalty for 1874, and the taxes of 1875 be recovered. The adjudication to the State was in part for the taxes for 1874, and asno offer of settlement as before stated was made • by the owner within the time prescribed by Act 7 above referred to, the penalties attached and were paid by the plaintiff and also the principal of the taxes for 1875—no penalties therefor having been incurred—the taxes for which (the last year) were ’overdue when the deed was made to the plaintiff on the 15th of May, 1876; and we cannot sec why the plaintiff is not entitled to recover for these yeai’s, as well as for the previozis years.

Among the items that go to make up the total sum claimed by plaintiff, are the commissions, costs, etc., attending the tax sale. As this sale was a nullity, and the adjudication to the State made against a prohibitory provision of law, the defendant cannot be saddled with these charges and plaintiff lias no right to recover them. They amount to §175.90, taking this amount from the total sum claimed, it leaves a balance of $2306.75, for which plaintiff is entitled to judgment.

The plea of prescription cannot be maintained. The demand is subject to the prescription of ten years.

We cannot, however, recognize, the privilege claimed by the plaintiff, resulting, as alleged, from subrogation to the State’s privilege by virtue of the payment by him of the, taxes-on the property. Such claim is not embraced in any of the provisions of Art. 2161, C. C. declaring the conditions under which subrogation takes place. Legal subrogation does not result from the payment of a privilege debt, when, at the time of the payment, the party making it has no privilege or mortgage on the. property and is without interest otherwise. Succession of Erwin, 16 Ann. 132; 12 Ann. 41 ; 13 Ann. 52.

It is therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed j and, proceeding to render such judgment as should have been rendered, it is further adjudged and decreed that plaintiff recover of the defendant twenty-three hundred and six dollars and seventy-five cents, with legal interest from the 15th of May, 1876, until paid, and that the claim of a privilege upon the property set up in the petition be rejected, defendant to pay costs of both courts.

Dissenting Optnion.

Beejiudbz, C. J.

This is apparently a suit to recover against the defendant a personal j udgment for a sum of money which the plaintiff alleges has satisfied taxes and penalties due on defendant’s property.

The defense is no canse of action, the general issue, prescription, that the amount did not enure to defendant’s benefit, etc.

In reality it is an action for the repetition of fill© price paid for the purchase of property, the title to which was annulled. The claim is urged l>3’ the evicted purchaser, not against the party to whom he has paid the price, hut against his vendor’s author.

The facts arc that the property was adjudicated on August 30, 1875, to the State, and afterwards, on May 15, 1876, as the property of the State to plaintiff.

Plaintiff’s pretensions to the ownership of the property were twice repelled as well by the State as by the Federal judiciary.

It does not appear that the State was a party to the suit in which it is claimed that the sale to her was a nullity. Until-the title to the State has been annulled so as to conclude the State, the title stands in her name.

Neither does it appear that the inscription of the title to the State was cancelled from the Conveyance office.

The plaintiff sues therefore as an evicted purchaser. IJis claim should have been urged against the State before the legislature, and not against her alleged author.

The defense of no cause of action was well founded and should have been sustained.

But taking the action to he one for the recovery of an amount voluntarily paid by the plaintiff1 to disencumber defendant’s property from several years taxes due on it, how can the plaintiff he permitted to ask a personal judgment against the defendant for the reimbursement of that amount, when it is considered that a delinquent taxpayer is not personally liable for the taxes dne on his real estate, and that such taxes can he satisfied when due, only out of the proceeds of the property on which the same are assessed and on which the law allows a lien to both the State and to municipal corporations, to whom the same may he due.

At the date of the adjudication, the Act of 1872, No. 73, which authorized the collection of taxes out of any property of the delinquent, had been amended.

Act No. 13 of 1876, p. 11, E. S., which became a law, from and after its passage, early in March, was t© the effect that all taxes due and unsettled, or to become due, were secured exclusively b3r a lieu and privilege on the property assessed.

The object of that act was formally to make claims for taxes, real elavins only, by preventing them from being urged in personam.

This was made apparent by Act No. 34, p. 56, E. S. 1877, which limited the lien of the State and city to the property assessed, and prohibited sheriffs and constables from executing writs for taxes on any other property.

In May, 1876, the State had only a right of action in rein, although hound to-proceed contradictorily with the owner of tho property. In the absence of the lien, secured by registry, the State could not have brought a personal action against the defendant.

When the plaintiff paid the sum, lie was not conventionally subrogated by the State, to the lien, which would have secured the payment oí the taxes, etc., had. the same been legally due, in case of tluv nullity of the sale.

Plaintiff was not a creditor of the defendant with privilege or mortgage, or even an ordinary creditor of his. He had no interest at stake which could have subrogated him legally to the rights of the State,, when he paid the amount.

There was no law then in existence transferring such lion on such payment.

• If plaintiff became a creditor when his title was annulled, he only acquired the claim or rights which the State could have exercised. The State could not, assuredly have proceeded m personam, for the obvious reason that delinquent tax-payers were not personally liable for taxes then due by property belonging to them. One is personally liable only where any property of his can be subjected to the payment of the claim. The Act of 1876 made the property only, not the owner, liable for the tax assessed and due.

If plaintiff acquired any claim, it would be one in rent against the thing. The proceeding in rem implies the existence of a lien or encumbrance on the property proceeded against. How could he exercise such a claim, when he acquired no lien and has none on the thing ?

Plaintiff stands in the predicament of one who pays a creditor whose claim affects real estate transferred to a third party who did not assume the debt due that creditor. As the party paying could not recover a personal judgment against the third party, who was not liable personally, so the plaintiff here cannot recover such judgment against the defendant who was not personally bound. 24 Ann. 29; 6 R. 407.

Plaintiff has attempted a speculation hieri eausa and has acted at his risk and peril. His remedy, whatever it be, is not in the present action against the defendant in this case. An evicted purchaser never was recognized the right to be reimbursed by the defendant, the purchase price paid to the seizing creditor who had a right of action in rein only.

The conclusions announced in the opinion of the majority are not supported by the decisions in the cases of Wedderstrand vs. Freyhan, 34 Ann., and Hopkins vs. Daunoy, 35 Ann., and other cases in which the purchasers at tax sales, subsequently annulled, recovered from the delinquent tax-payers restitution of the amounts paid by the purchasers for taxes, penalties, etc. The mere reading of the opinions in those cases shows that they presented facts and circumstances entirely different from the case at bar. They cover all cases in which the restitution of taxes, costs, etc., by the delinquent, was made the condition of recovering- possession of the property. In this case the owner was never divested of his possession, and the purchaser was defeated in his attempt to gain possession, and his purchase annulled.

The record contains no evidence that the taxes which he claims to have paid were due by the defendant, or had ever been legally assessed against his property.

If it be true that the property was validly adjudicated to the State on August 30, 1875, it belongs to the State at this date. The judgment annulling the sale by the State to the plaintiff, did not divest the former of her title to the property. It merely placed things in the condition in which they stood prior to the adjudication to plaintiff on May 15, 1876; in other words, it annulled the adjudication to plaintiff, nothing less, nothing more.

It is manifest that, were the defendant now to pay the plaintiff the amount which he claims, that payment would not divest the State of her title to the property if she, acquired any. The defendant would then have lost his property, and besides, the amount claimed as taxes due on it, and for which it was apparently confiscated for the, benefit of the State.

The judgment appealed from should be affirmed.

Poc’he, J. concurs in this opinion.

On Application for Rehearing.

Fenner, J.

In this case while adhering to our conclusion of defendant’s liability, for the principal of the taxes and the interest from date of payment, under the equitable principles of Hopkins vs. Daunoy, regardless of the question of the validity of the assessment, yet Ms liability for prior interest and jienalties, does depend directly on that question; and we grant a rehearing restricted to the, question as to whether the record furnishes sufficient evidence to sustain the demand for such interest aud penalties. A rehearing thus restricted, is therefore granted.

Poché, J.

Without waiver of the views contained in the opinion of the Chief Justice, I concur in this decree.

On Rehearing.

Fenner, J.

The decision in Hopkins vs. Daunoy, 33 Ann. 1423, followed in this case, rests upon equitable principle that all property, not exempt, is legally bound to bear its quota of equal and uniform taxation ; that, although the assessment and other proceedings be void and the recovery of the tax levied thereunder be thereby temporarily defeated, yet that under the power of reassessment, the State and municipalities may, and in the performance of their duty, should take •new and valid proceedings for the collection of the tax; that therefore, when the purchaser at a void tax-sale has actually paid the taxes he has relieved the property of a charge which, though not legally operative at the moment, was subject to immediate and valid reimposition, and has thus conferred upon the owner a direct benefit, which equity will not permit him to enjoy at the expense of the purchaser who has paid.

The manifest justice of this rule, approves the wisdom of its adoption and the propriety of its enforcement under all circumstances. It is calculated to repress the vicious tendency of property owners to evade, on technical grounds, their just share of the burdens of government, and to aid the State and subordinate taxing authorities in the collection of their limited and sorely-needed revenues.

But, as we said in the case referred to, the rule has no application to the penalties paid where the assessment was null. The owner was not liable for such penalties and could not he made liable therefor by any subsequent proceeding.

Therefore, the right of the purchaser to recover these must depend upon the fact whether or not the assessment was valid. If valid, the penalties were due, although the subsequent proceedings for the sale were defective and illegal.

The plaintiff in this case has furnished no proof of the validity of the assessment except the recital of the tax-deed.

The constitutional provisions which attach certain presumptions to tax-deeds have no application to deeds which have been decreed null and void, as in this case.

It was, therefore, incumbent on the plaintiff to establish the validity of the assessment as a condition precedent to his right to recover penalties. Having failed to do so, he must he non-suited as to that portion of his demand.

It is therefore ordered and adjudged that our former decree herein. he amended by reducing the principal of the judgment from $2306.75 to $1455.50, and by rejecting plaintiff’s demand for the difference as in case of non-suit, and that, in all other respects, our said decree remain undisturbed.

Concurring Opinion.

Bermudez, O. J.

I concur in tlvat portion of the judgment on the rehearing which amends the judgment previously rendered, so as to relieve the defendant from part of the claim, but- I adhere to my dissenting opinion, as the other part of the judgment which allows the claim', which I think should not be recognized at all.

Mr. Justice Pochó concurs in this view.

Mr. Justice Todd and Mr. Justice Manning concur in the decree refusing the rehearing, so far as it leaves the previous judgment undisturbed, but dissent from it in other respects.