author: Mare, J.

text:
    No. 7103.
    Factors’ and Traders’ Insurance Company vs. M. M. DeBlanc et al.
    A judgment rendered by a court o£ competent jurisdiction against a defendant who was legally cited, and the sheriff’s sale duly made in execution of that judgment, can only be attacked in a direct action to annul, brought in the court that rendered the judgment. Neither the judgment nor the sale can be assailed collaterally.
    The adjustment of conflicting mortgage claims falls within the jurisdiction of the court from which the process issued under which the sale of the mortgage property was made.
    One who claims the proceeds of a judicial sale, thereby makes a judicial admission that the sale was valid. He is therefore estopped from attacking the sale as a nullity, unless he proves that his admission was made through error of fact.
    One who judicially asserts a fact as the basis of a right touching the matter in controversy, can not afterward change his position, and assert the contrary.
    The rights and claims of concurrent mortgagees, where a valid sale of the mortgage property has been made, is restricted to the pro rata distribution of the proceeds.
    APPEAL from the Fourth District Court, parish of Orleans. Houston, J.

      Gibson & Gibson for plaintiff and appellee.

      Sambola & Ducros for defendants and appellants.
   The opinion of the court was delivered by

Mare, J.

In J une, 1871, the Factors’ and Traders’ Insurance Company recovered judgment in the Sixth District Court, with recognition of mortgage and privilege, against Laure Blanque, on her three promissory notes, one for $3000 and two for $2250 each, with interest, the first secured by a mortgage dated fifth September, 1865, the others by a mortgage dated fifteenth February, 1869, on the same property, the undivided interest of the mortgagor in certain houses and lots in New Orleans, which she held in common with her co-heirs.

Laure Blanque set up formidable defenses to this suit, charging fraud and an abuse of his trust by her agent who executed these notes and mortgages ; and she appealed from the judgment against her. This court reversed the judgment; but, on rehearing, set aside its original decree, and affirmed the judgment of the district court, on the ground that the giving of the notes and mortgages was authorized by the power; “ and that was all that the lender (of the money) had to be satisfied of.” See decree, fourth January, 1875, No. 3485 of the docket, not reported.

On this judgment execution issued: the mortgaged property was seized and offered for sale; and, two thirds of the appraisement not having been bid, it was sold on the twenty-fourth April, 1875, on twelve months’ credit, and adjudicated to the plaintiff in execution, the Factors and Traders’ Insurance Company.

On the twenty-second April, two days before this sale, Mathieu M. DeBlanc filed his petition of intervention and third opposition, alleging that he was holder and owner of two of the three notes secured by the mortgage of fifth September, 1865, one for $400, the other for $600 ; and of two other notes, one for $600, secured by a mortgage of thirteenth March, 1868, and one for $2000, secured by a mortgage of twenty-second April, 1868, all resting on the same property ; that the note for $3000, one of those on which the plaintiff in execution had obtained the judgment under which the sheriff was about to sell the mortgaged property, was paid by the maker at maturity, and the mortgage by which it was secured extinguished pro tanto; and that the mortgages securing the notes held by opponent were superior in rank to any that plaintiff may have on the property. He prayed that the sheriff be ordered to retain in his hands, subject to the order of the court, the proceeds of the sale; and for judgment ordering the payment of the aggregate sum due him out of the proceeds, in preference to plaintiff, and all other creditors.

The court granted the order, requiring the sheriff to retain out of the proceeds a sufficient amount to satisfy opponent’s claim, “until further orders.” The plaintiff company put this opposition at issue on the seventh May; and on the sixth January it was discontinued, on motion of opponent’s attorneys.

On the same day that this discontinuance was entered in the Sixth District Court, DeBlanc filed a petition in the Fourth District Court, and 'Obtained a writ of seizure and sale on the notes and mortgages set up -and described in this intervention and third opposition: and the sheriff ■■seized and advertised the property for sale, ignoring the previous sale • and adjudication to the Factors’ and Traders’ Company.

On the fifteenth January DeBlane took a rule on the Recorder of ’Mortgages and the Insurance Company to show cause why the mortgage of fifth September, 1865, should not be canceled and erased, so far as the $3000-note was concerned, on the ground that it was paid to the original mortgagee at maturity.

This rule was put at issue by exception and answer ; the insurance company alleging that the notes held by DeBlane had been paid, and afterward re-issued without consideration; and that the indorsements were not genuine, but had been forged. The court ordered a trial by jury; and a few days after, on the eighth of February, the rule was discontinued.

The property was advertised for sale by the sheriff under DeBlanc’s writ of seizure and sale, on the nineteenth February ; and on that day the Factors’ and Traders’ Insurance Company brought this suit, and obtained an injunction against further proceedings under the writ!

The petition sets out the judicial proceedings under which the company claims: the opposition of DeBlane: the giving of the twelve-months bond for the price of the adjudication, and the recording of that bond in the mortgage office: the registry of theproces verbal of the sheriff’s sale and adjudication in the conveyance office: the continuous possession by the company under the adjudication, and a subsequent judicial partition between the plaintiff and.the other co-proprietors: the payment by the plaintiff of a large sum for State and city taxes on the property: that there were taxes unpaid, which plaintiff had been unable to pay, although exercising the greatest diligence; and that this was the •cause of plaintiff’s failure to obtain a deed from the sheriff in confirmation of the adjudication.

The answer of DeBlane reiterates the allegation that the $3000-note had been paid at maturity, arid thereby extinguished. It also alleges that plaintiff had not recorded any deed or title to the property : that respondent’s mortgage contains the pact de non alienando; and that the sale and adjudication were void, inasmuch as respondent’s mortgages were and still are first in rank, and exceed the amount of the adjudication. It concludes with a prayer for the dissolution of the injunction with damages; and that the mortgage to secure the $3000-note be canceled and erased.

The judgment of the district court perpetuated the injunction, reserving to defendant the right, if any he have, to claim, by opposition •Or otherwise, the proceeds of the sale by the sheriff under the judgment ■of the Sixth District Court; and also his right to filaim, in a direct ¿action, the nullity of that sale. This is the judgment which the appeal .taken by defendant requires us to review.

The mortgage of fifth September, 1865, was given to secure three ’■notes, aggregating $1000, of which plaintiff held one for $3000, and defendant held two, one for $100, the other for $600. The holders, therefore, were concurrent mortgage creditors, and not third persons with respect to their rights under that mortgage. This mortgage bore upon the entire property of the mortgagor covered by the subsequent mortgages of March and April, 1868, and February, 1869. It was the first mortgage in date and rank ; and it had been preserved by the original inscription on the day of its date, fifth September, 1865, and by re-inscription on the twenty-seventh August, 1875. Plaintiff proceeded against the mortgagor by petition and citation, and obtained a judgment contradictorily, and in the ordinary form. In execution of that judgment the sheriff seized and sold the entire mortgaged property, and adjudicated it to the plaintiff. The price of the adjudication, deducting the costs, was not sufficient to pay one third of the debt and interest secured by -the first mortgage; and no part of the price could be applied to the subsequent mortgages until the amount due under the first mortgage had been fully paid. It would be a waste of time, therefore, to enter úpon any inquiry as to the rights of the parties under the subsequent mortgages until their rights under the first mortgage have been disposed of.

A judgment rendered as this was, between the mortgagor and the 'holder of one of the mortgage notes, after a serious contest and a protracted litigation, can not be treated as a nullity; nor can it be ignored by any person’whomsoever. It might be attacked for nullity; but that must be done in a direct action, and in the court in which it was rendered. Rhodes vs. Union Bank, 7 Rob. 63; David vs. Cabouret, 1 An. 171. A sale by the sheriff in execution of such a judgment might be attacked for nullity; but that must be done directly, not collaterally, where the nullity is not patent and absolute. Lawrence vs. Birdsall, 6 An. 688 ; Gillis vs. Carter, 29 An. 701.

The adjustment and ranking of conflicting mortgage claims fall •within the jurisdiction of the court from which the process issued under which the sale of the mortgaged property was made, and would not be •cognizable, originally, in any other tribunal. Adams vs. Daunis, 29 An. 320 ; Buckner vs. Wisdom, 31 An. 52 ; Rev. Stats. 1942, 2903.

One can not claim, judicially, the proceeds of a judicial sale, and afterward attack that sale for nullity. The demand for the proceeds is the judicial admission of the legality of the sale. Boubede vs. Aymes, 29 An. 275 ; and the declaration which one makes in a judicial proceeding is full proof against him ; and it can not be revoked unless it be proved to have been made through an error of fact. R. C. C. 2291. Nor can one who has judicially asserted a fact, as the basis of a right touching the subject matter in controversy, be permitted to change his position, and to assert the contrary. Guidry vs. Conner, 4 An. 416 ; Denton vs. Erwin, 5 An. 18 ; Bender vs. Belknap, 23 An. 765 ; Gervin vs. Beaird, 26 An. 630.

If the sale under the judgment of the Sixth District .Court was not valid, it must nevertheless have its effect until it has been annulled judicially, in a direct action ; and as the validity of the sale depends upon the validity- of the judgment, the attack must be in the Sixth District. Court. If the sale was valid, the rights of the plaintiff and defendant are concurrent under the first mortgage; and are restricted to the prorata distribution of the proceeds.

The defendant by his intervention and third opposition admitted, in a judicial proceeding, a judgment and execution upon that judgment* under which a sale was about to be made, from which proceeds would come into the hands of the sheriff, which proceeds he claimed by preference. As he continued that opposition and claim of the proceeds by preference for more than eight months after the sale was made, he thereby re-affirmed the admission which he had made before the sale ;. since, without a legal and valid sale there could have been no proceeds in the hands of the sheriff for distribution. The allegation that the note for $3000 was paid at maturity, and the mortgage extinguished pro tanto* was absolutely inconsistent with his claim of the proceeds, because a sale under an extinguished mortgage would be illegal and tortious; and as he claimed the proceeds and did not demand the nullity of the sale, he irrevocably elected to treat the sale as legal and valid. His subsequent discontinuance of the opposition in no manner impaired the force- and effect of his admission, nor did it enable him to assert the nullity of the sale, or to deal with it as a nullity, in a subsequent proceeding touching the same property.

The difficulty in paying the taxes on the property, and obtaining the sheriff’s deed, is probably attributable to the fact that the assessments were upon the entire property held in indiviso by the mortgagor and her co-proprietors, and the necessity of ascertaining and apportioning the amount. The prooes verbal of the sale and adjudication, a good title in itself, was registered in the conveyance office on the tenth February, 1876. This, however, was not important in this case ; because the mortgage first in rank was recorded ; and it protected plaintiff against any junior incumbrance until the sheriff’s, sale was perfected. We are far from assenting .to the proposition that a concurrent mortgage credit- or, after a judicial sale of the property, under a judgment in personam against the mortgagor, with a recognition of the mortgage rights and privileges of the plaintiff, could disregard that sale, and proceed against, the mortgage property, whether the title of the adjudicatee had or had. not been registered.

We have no doubt but that defendant was concluded, so far at least-as the proceeding by executory process is concerned, by his intervention, and third opposition ; and we are satisfied that the judgment and the sale are conclusive against all persons whomsoever, until they are annulled, contradictorily with the plaintiff, in an action brought directly* for that purpose in the court in which the judgment was rendered.

The judgment appealed from is, therefore, affirmed with costs.

Rehearing refused.


source: Caselaw Access Project

author: DeBlanc, J.

license: Public Domain

text:
    No. 6832.
    Paul Trevigne vs. School Board and W. O. Rogers.
    An injunction will not issue to restrain the doing of a thing which has already been done, which is an accomplished fact.
    On the application for an injunction no mandate can issue to enforce rightselaimed by the plaintiff which he does not ask shall be enforced.
    ^PPEAL from the Sixth District Court, parish of Orleans. Mghtor,.

      Simeon Belclen for plaintiff and appellant.

      F, H. Farrar for defendants and appellees.
   The opinion of the court was delivered by

DeBlanc, J.

Relying on the 14th amendment to the constitution of the United States, which provides that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of said United States,” and on articles 135 and 136 of the Constitution of Louisiana, which declare — in substance — that there shall be no separate schools or institutions of learning established by the State or any municipal corporation for exclusively the children of any race, Paul Trevigne, a resident of this city and a citizen of the United States and of this State, seeks to enjoin the Board of School Directors of the parish of Orleans, and William O. Rogers, Superintendent of the public schools, of this city, from dividing said schools into schools for exclusively the .white children and schools for exclusively the colored children.

In his application, plaintiff expressly acknowledges that the division, which he denounces as thrice unconstitutional, was — at and before the date of his application — an accomplished fact, and nevertheless — he merely asks that the Board and the Superintendent he restrained from doing what he knew that they had then already done, and does not ask ■that they be compelled to conform to what he conceives to be the requirements of the Constitution of the Republic and of our State.

The averments of plaintiff’s petition do not justify — they contradict, xepel and negative its conclusion ; this is manifest. Whatever may be Ttis pretension or his right, no court can justly allow that which is not .¡asked, an enforcing order in lieu of a restraining one. It would be as wain as unreasonable to attempt to restrain the execution of an act which — it is judicially admitted — has already been executed : it would Tie an unprecedented irregularity to issue on these inconsistent pleadings — an enforcing mandate, which is not applied for.

By the limited and qualified prayer of his broad petition, plaintiff lias put it out of our power to discuss and determine the important •question raised by him. The perpetuation of his injunction — this cannot be fairly or successfully disputed — neither would nor could, under 'the circumstances recited by him, secure and protect the exercise of the •privilege which he considers that he is entitled to ; and, as held by this ■¡Court — in regard to as tardy an injunction.as that of plaintiff, one obtained and issued after a seizure had actually been made, and in which ■the claimant had failed to pray that the sheriff be ordered to return the property he had seized, “ such an injunction was, — and, here, would ihave been in truth a nullity in itself and was properly dissolved on motion.” 4 L. R. 332 — 18 A. 2427 R. 4422 R. 342 — 9 M. 519 — 1 Woods, 12418 N. Y. 155 — 23d N. Y. 318 — 6 Metcalf, 425.

There is no error in the judgment appealed from, and that judgment is affirmed with costs.


author: .Spencer, J.

text:
    No. 7231.
    Jerome Hanley, Executor, vs. Mary A. Drumm.
    A maa and a woman, in contemplation of marriage, may enter into a valid marriage contract by which it is stipulated that certain separate property of the man and of the woman shall enter into, and form a part of the community to arise between them as husband and wife. And the property embraced in the contract shall constitute a portion of said community.
    A written marriage contract, expressed in unambiguous terms, can not be varied by what was said before, at the time of, or after its completion.
    'EAL from the Fourth District Court, parish of Orleans. Houston,

      Cotton Levy for plaintiff and appellant.

      Richard Shakelford for defendant and appellee.
   The opinion of the court was delivered by

.Spencer, J.

The petition alleges that during the sickness of. Philip Drumm, Sr., the defendant, his widow, took possession of $3150 in cash, •and a mortgage note for $1000, executed by Edmond J. Bobet, being the proceeds of sales of two pieces of property made by deceased to said Bobet, on January 9,1875, and converted the same to her own use, and prays judgment against her for the same.

The defendant pleads, first, a general denial. Second, that the mortgage note for $1000 was given to her by her husband in part payment of her dowry of $4000, settled upon herself in her marriage contract, which is made part of her answer. Third, that she is entitled to $1000 for mourning dfesses and sustenance for herself and family during the year of mourning, in lieu of interest on her said dowry.

And then assuming the position of plaintiff in reconvention, she pleads said claims in compensation and reconvention, and asks for judgment therefor, less the $1000 already paid by her husband.

The evidence satisfies us that the defendant did not receive the •cash claimed, $3150, but that said money was all paid out by Philip Drumm, during his life. She did receive the $1000 mortgage note, as she herself admits.

The question which determines the issues remaining, is, was the ■sum of $4000 brought into marriage by the wife, dotal, under the marriage contract which preceded the nuptials ?

The marriage contract reads as follows:

“Which said appearers severally declared that whereas they had resolved to join themselves together in the bonds of matrimony, and had in consequence mutually agreed, before the celebration of the marriage, to enter into a formal marriage contract, in order thereby to define and establish the rules and regulations by which their said intended marriage shall be governed.
“ Wherefore, and in consideration of the premises, the said parties have mutually agreed, determined, and contracted, and by these presents ■do mutually agree, determine, and contract as follows, to wit:
First. — “There shall be and exist a community of acquets and gains between the said intended husband and wife, under the modifications and stipulations set forth as follows, to wit:
“ The property now belonging to the said intended husband, exclusive of that which belongs to the succession of his late wife, Mistress Margaret Huhner (deceased,) is hereby valued at the sum of twenty thousand dollars ($20,000.)
“ The property now belonging to the said intended wife, all of ■which has been acquired by her since the death of her said late husband, nnd by her own industry, and is hereby valued at the sum of four thousand dollars ($4000.)
“ The said property shall be brought into the said intended marriage as common or community property, with the distinct understanding and agreement between the said parties,
. 1. “ That the principal or capital of the proportions of the property so contributed plus the profits that may be acquired or minus the losses that may be incurred, by its use in said community, as hereafter provided, shall, on the dissolution of the said intended marriage, inure to the use and benefit of the children which each of said parties may have by their former marriage .as aforesaid, subject only to the rights secured by law to parents in making their testamentary dispositions, and to the birth of other children during their said intended marriage, and
“ Second, that the profits, if any may be acquired by said parties during their said intended marriage, shall inure and belong to them respectively and their heirs, in proportions similar to the amounts as aforesaid by them severally invested in said community. That is to say, the amount of property brought into the said community by the said intended husband, being five fold greater than that brought into the same by the said intended wife, his share in the profits thereof shall1 be five fold greater than hers, and should the employment of said property or the labor of said community result in loss, the amount of such losses shall be sustained in the same proportions by the said intended husband and wife respectively.
2. “ Neither of the said parties shall be held liable or responsible for the debts of the other contracted prior to said intended marriage.
3. “ The property herein before referred to, as constituting the capital of the limited community hereby established, shall be under the management and control of the said intended husband.”

The defendant contends that under this contract the $4000 brought by the wife were dotal. • The plaintiff asserts that they were put into the community and became a part and parcel of its assets.

We propose to consider, first, whether by the terms of the contract, it was the intention of the parties to make this sum dotal, or to make it a part of the community.

Second, If their intention was to make it community, was the contract so to do lawful.

On the first point there is hardly room for controversy, if we are to attach to words their ordinary and proper signification. The contract declares that there shall be a community. It fixes and declares the amount of property owned by the husband, as also the amount owned by the wife. It declares “ that said property shall be brought into said-intended marriage as common or community property. That the principal or capital of the property so contributed, plus the profits that maybe acquired, or minus the losses that may be incurred by its use in said ■community,” shall on the dissolution of the marriage inure to the use, etc., of the children which each of said parties may have by their former marriage, etc. It provides the proportion in which these profits and losses shall be sustained, to wit: in proportion to the respective amounts contributed. It declares that “ the property herein before referred to, as constituting the capital of the limited community hereby established,” shall be under the control of the husband.

It seems that there were losses sustained by this community.

Under the terms of this contract, “ the principal or capital” contributed by the wife can only be withdrawn, minus her proportionate share ■of “ the losses.”

We hold, therefore, that it was the intention of the contracting parties to put their money and effects as estimated into the contemplated ■conjugal partnership as capital.

2. Was such a contract lawful and within their power ?

C. C., art. 2305, provides: “ In relation to property, the law only Tegulates the conjugal association in default of particular agreements, which the parties are at liberty to stipulate as they please, provided they be not contrary to good morals, and under the modifications hereafter presctibed.” The Code then goe^, on to enumerate certain agreements which they can not make, such as altering the legal order of descent, derogating from the marital power, etc.

Art. 2309 declares that matrimonial agreements may be altered by ■consent before, but not after, the marriage.

Art. 2338. Whatever in the marriage contract is declared to belong to the wife, or to be given to her on account of the marriage, etc., is part of the dowry, unless there be a contrarxj stipulation.”

We have seen that there was in this case “ a contrary stipulation.” The only question is, as to the legality of that contrary stipulation.

The defendant asserts that said stipulation is null and void:

1. Because it violates art. 2412, whereby “ the wife, whether separate in property by contract or by judgment or not separated, chn not bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage, etc.” It was by reason of this article that the district judge gave judgment for defendant. But it •seems manifest to us that this article refers and can only refer to obligations assumed by the wife after the marriage. The whole theory of that article rests upon the presumed existence and exertion of the marital authority. Such an application of the article would nullify the greater part of the provisions of the Code under the head of marriage ■ contracts. Prior to the marriage, the law treats the intended wife as sui juris, as a free agent; but after it, it treats her as subject to the ■ power and authority of the husband, and as .no longer able to protect herself. Henee it interposes to shield her from impositions and wrong.

2.' It is contended in the next place that the said stipulation violates article 1752, R. 0.0., which forbids a man or woman contracting a second marriage, having children by a previous one, from giving to the other more than the least child’s portion in usufruct, etc. We do not see-how it can be said that the wife gave any thing to her husband in this case. So far from giving, she carefully provided for the return of her contribution to the partnership, plus all profits or minus all losses resulting from the venture.

3. It is further contended that the stipulation is in contravention of public policy. The case of Belongnet vs. Lanata, 13 A. 15, is cited as authority that the law prohibiting the alienation of dotal property is a law of public order. That is. doubtless true ; but before it can be invoked it must appear that the property is dotal. That is the very question in dispute, and the very argument begs the question. If the property is not dotal, the authority is inapplicable. If it is dotal, we fully agree to the proposition. But we have seen that by the very words of the contract the property was put into the community. If that stipulation be lawful, then the property is not dotal, but community. We have seen that under art. 2305 0. 0. the parties may, by marriage contract, stipulate “as they please” relative to their property rights, provided it be not contrary to good morals, or prohibited by the Code. We see no-reason to say that an ante-nuptial agreement between parties contemplating marriage, whereby they put their respective means into a common fund, to be employed for their common benefit, should be immoral or illegal. Why should the wife not be permitted to contribute to this fund, when she is to share its benefits ? Why should she be compelled to take all the chances of gain, and none of loss ? Why should she not be permitted to participate, if she so elects, by ante-nuptial agreement, in the risks which life imposes upon her husband and his property ? What is there wrong or immoral in a woman agreeing to share the fate of her intended husband ? We agree with plaintiff’s counsel that the law favors, and ought to favor the community. In the absence of proof to the contrary, it presumes that all property existing at the dissolution, of the marriage belongs to it.

4 But it is said that art. 2371 prescribes and specifies of what the community is composed. That it is restrictive and mandatory. That article regulates and defines the “ legal community” not the conventional community. It provides for the case where there is no agreement of parties, when they have been silent. It has no’ reference to the cases, foreseen by articles 2305 and 2393, where the parties have modified by agreement the extent and character of the conjugal partnership,

5. But it is said the parties by their subsequent acts and conduct have shown, that it was not their intention to make this $4000 community property. The answer to this is, that marriage contracts can not be-changed or altered after marriage, even by formal agreement, much les» by indirection, by acts and declarations. Their contract was reduced to-writing. It can not be varied by what was said before, at the time of, or-after its confection. O. 0. (2270) 2256.

We see no reason, and know no law, interdicting the parties from stipulating that the sums brought in marriage should enter into and become part and parcel of the community. On the contrary, the adjudicated cases are clearly in favor of the existence of the right. In the case of Fabre vs. Spacks, 12 R. 32, the first clause of the marriage contract stipulated that “there shall be a community between them,, which shall comprehend all their estate, real and personal, present and to come.” The second established the amount brought in by the husband. The third specified the property owned by the wife at the date-of the marriage.

The fifth clause was in these words: “ In case of the death of either'the husband or wife, without children, etc., the amount of the-property brought into this community by the one that shall die first, with the profits arising from the community, shall revert to the survivor,, etc.” Under this contract this court held that by the first clause all the-wife’s property was constituted community, and that by the fifth clause-the husband took it all to the exclusion of the wife’s collateral heirs.

The doctrine of this case was affirmed in “ Succession of Mossy” 4 A. 338, where the court expressly recognize the right of the wife by-marriage contract to put her property into the community.

We therefore hold that the $4000 brought into marriage by Mrs.. Drumm fell into and became part of the community ; that she has nt> dotal rights under said contract; that the pretended dation enpaiement of the $1000-mortgage note is null and void, and that the executor of Philip Drumm is entitled to recover the same or its amount.

It is therefore ordered and decreed that the judgment appealed' from be avoided and reversed, and it is now ordered and decreed that the plaintiff as executor do recover of the defendant the mortgage note-described in his petition, to wit: the note of Ed. J. Bobet, dated January 9, 1875, payable one year thereafter, for one thousand dollars,, bearing eight per cent interest from its date, and that said defendant-deliver the same to said plaintiff. That in default of such delivery,, within ten days from notice of this judgment, said plaintiff recover of the said defendant, in money, the amount of said note, to wit, one thousand dollars, with eight per cent interest from January 9, 1875, till paid-It is further ordered that the defendant pay costs of both courts.

Rehearing refused.


author: Manning, C. J.

text:
    No. 7193.
    Anais Berens vs. Executors of François Boutté.
    An inj unction without bond and security will not issue to restrain an order of seizure and sale except on a sworn allegation of one or more of the specific causes enumerated in article 739 of the Code of Practice. If any other cause is alleged by the plaintiff in injunction, in addition to any of those enumerated in article 739, he must give bond and security.
    'The opposition of a mortgage creditor to the account of an executor on the ground that he was not recognized as a mortgage creditor on the account, is not such a proceeding via ordinaria as will prevent the creditor from afterwards proceeding via executiva against the property subject to his mortgage.
    A formal petition by a mortgage creditor of a succession asking to be recognized as creditor, and demanding that the executor give security for his claim, is such a judicial demand as will interrupt prescription.
    An executor who classifies a claim against the succession as one of its debts, and prays for the sale of succession property to pay the claim, thereby acknowledges the dpbt and interrupts its prescription.
    •Courts of-'ordinary jurisdiction are empowered to issue writs of seizure and sale against succession property.
    'The mere fact that a mortgage note is prescribed on the face of it will not prevent the issuance of a writ of seizure and sale to enforce its payment.
    .¡Damages will not be allowed against an executor on account of a wrongful injunction when it appears that he was disinterested, and acted in good faith for the interest of the succession.
    APPEAL from the Fourth District Court, parish of Orleans. Houston, J. .

      Ed. Bermudez and J. Ad. Bozier for plaintiff and appellee.

      Ellis & Ellis and John McEnery for defendants and appellants.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff, holding six promissory notes secured 'by mortgage, sued out executory process from the Fourth district court of Orleans against the mortgaged property, which belonged to the suc•cession of Frangois Philippe Boutté. The executors of that succession obtained an injunction, prohibiting the sale under that process upon •three grounds ;

1.That the plaintiff’s action via executiva is extinct, because she had already, proceeded via ordinaria, which latter is a peremptory bar •to the executory process.

2.That the proceeding via ordinaria is still pending, and the plea of lis pendens is interposed.

3.That the debt is prescribed.

The plaintiff moved to dismiss the injunction for the reason that the •executors had failed to give bond and security upon obtaining the writ. .The order granting that writ had dispensed them from giving any security under authority, it is said, of Code of Practice, arts. 739-40. The plaintiff insists that the authority, thus given to the judge to require no surety, must be confined to the eight specific cases there enumerated, •and that debtors cannot be permitted to arrest a sale without security in any others, nor join other causes to those there enumerated in an injunction without surety.

We are earnestly pressed to pass upon the question thus presented to us, and we do not see how or why it should be avoided.

Ordinarily a party arresting a sale through an injunction must provide a means of indemnification to the creditor, whose process is stayed. There are eight causes, by alleging any one of which under oath, a debtor will be dispensed with giving surety for any damages his writ may occasion, but to guard against the injury which a prolonged suspension of the injoined process might occasion, the plaintiff in that process may require the judge to pronounce summarily on the merits of •the injunction. Code Rrac. art. 740. In singling out these eight causes from all others, and imparting to them a special quality, the Code must have intended that it should be exclusively their own, and it follows as a logical sequence that other causes cannot be associated with them, or one of them, and thus under cover of their or its protection obtain a boon or privilege which was refused to these others. Otherwise a debtor, whose reliance for a successful resistance to process rests upon grounds that require a surety, may by merely conjoining with them one of the veasons, for which surety is dispensed, obtain the advantages accorded alone to the latter. And this would be a palpable evasion of the law. If the debtor seeks to arrest the sale of his property for one or more of the specified reasons, upon alleging which under oath, the judge will not require surety, he must confine himself to those reasons if he wishes to avail himself of that privilege. If he prefers to strengthen his claim to relief by adding other reasons, there can be no objection to this cumulation of grounds for injunction, but he must give bond and surety ■as required under other provisions of the law regulating the issuing of those writs.

There were then good grounds for the motion to dissolve, or for restricting the party injoining to the introduction of evidence in support of the plea of prescription alone. Williamson v. Richardson, 30 Annual, 1163. The case is however before us on the merits, and all parties are ■interested in having a final decision. Interest reipublicw ut sit Unis ■litium.

It is undoubtedly true that if one, having a right to executory pro•cess, elects to pursue via ordinaria, he cannot abandon that and after-wards revert to the via executiva. But what is the alleged ordinary process in this case ? The executors had filed an' account, and had abstained from placing thereon the proceeds of the sale of this property which had been effected under a proceeding, the validity of which was then in contestation, and they had also abstained from placing Mrs. Berens on their tableau of distribution as a mortgage creditor. She opposed the homologation of this account and tableau, and that is the alleged ordinary action. The sale which had been effected was annulled. Boutté v. Boutté, 30 Annual, 181. The proceedings in the probate court, upon the account and tableau, so far as concerned the distribution of the proceeds of that sale, necessarily were at an end upon the rendition of the decree annulling the sale from which the proceeds sprang. There-was therefore no lis pendens, and there bad not been any ordinary action upon the mortgage notes. The opposition of the mortgage creditor had for its object to prevent the homologation of a tableau which-failed to recognize the opponent’s mortgage rights, and did not prevent, the assertion of those rights in an action, either in the ordinary or executive form.

Let us endeavour to make this clearer. An account of an executor is merely a statement of the moneys he has received as assets of a succession on the one hand, and their disbursement by actual payments on the other. An opposition to such account may claim, that all the assets-which have been received are not placed upon it, or that some of the payments were illegal and unauthorized, and such like objections. A tableau of distribution is a statement of the funds received, or to be received, and their intended payment, where upon the one hand there-appear the funds to be distributed, and upon the other is the proposed distribution of them. An opposition to this may, like an opposition to-an account, claim that there are more funds, or ought to be more, in hand than are acknowledged,and besides that the proposed distribution of them is against law, violative of the ranks of different debts, etc. What is there in the nature of such oppositions that precludes the opponent from asserting her claims against the succession by a regular suit ?

The plea of prescription alone remains. It will be understood from-what we have already said that the motion to dissolve should have been sustained, or the plaintiff in injunction should have been confined to the consideration and support of that plea alone, since the injunction without bond could have been based only upon it. The plea is confessedly inapplicable to the larger part of the debt, and can affect only the note for 17,636.00, maturing August 14,1870. The time of payment was then, extended another year, and subsequently by seven several extensions to Dec. 18,. 1874. All of these extensions are written upon the back of the-note, and are signed by Berens but not by Boutte, and they all state-that the interest was paid in advance at each extension. Their admissibility to bind the deceased Boutté is denied under the act of 1858. Passing them over as evoking an unnecessary discussion in the presence of other testimony touching the interruption of prescription, we find the plaintiff presenting her petition to the Court July 24,1875, representing herself as a creditor for this whole mortgage debt of over $23,000, which sum includes the note for $7,636, and praying the court to order the executors to furnish security for her claim, and they did execute a bond for $30,000. Four months before this, viz March 17, 1875, the executors presented a petition to the court, setting forth a list of the debts of the succession, upon which list the whole of this mortgage debt appeared as due to plaintiff, and prayed an order of sale to pay the debts thus acknowledged. Here were two interruptions of prescription within five years from the maturity of the note. It cannot be contended that Mrs. Berens was bound, if she would avoid prescription, to bring suit upon her notes and demand judgment thereon. The law not only fails to require parties having claims against successions to bring suit, but mulcts them in costs if they do bring suit where the representative of the succession has acknowledged the claim. Oode Prac. art. 984. Sue. Romero, 29 Annual, 493. The executors acknowledged the mortgage notes by a proceeding in court, wherein they included them in a classification of the succession debts, and asked leave of the court to alienate its property to pay them. The notes were not extinguished. Prescription was not acquired. Throwing out of the case all the payments of interest, and all the prolongations of maturity, this judicial proceeding by the executors was taken within five years from the maturity of this note on its. face. And they had already given security, at the instance of the-plaintiff and upon her judicial demand, for a sum based upon the whole-amount of her mortgage debt.

The French writers take this view of the demand which interrupts-prescription. Quelle difference y-a-t-il en effet entre une demandeformée en justice par citation lorsque les parties n’ont pas encore ouverfc la lice judiciaire, et une demande formée incidemment ou réconventionellement lorsque les parties sont en presence du juge? Les expressions de notre article, citation en justice, doivent done s’entendre d’une maniere large; il eut été plus exact de dire, une demande en justice. Troplong Prescription no. 562. Les expressions, citation en justice, doivent s’entendre d’une maniére large. Ellos s’appliquent átoute demande en justice. Merlin’s Repertoire, Prese, nos. 401 — 5.

It is also claimed on the part of the executors that the order of seizure and sale and all subsequent proceedings based upon it, are stricken with absolute nullity for want of jurisdiction in the Fourth court to issue such order against the property of a succession, and we are referred to two decisions as directly in point. Poutz vs. Bisles, 15 Annual, 636 and Wisdom v. Buckner, recently decided and not yet final. The first case ruled that when an order of sale of succession property for the payment of debts had been made by the Second Court of Orleans, a subsequent order of seizure and sale granted by one of the other courts against the same property was. in conflict with the jurisdiction already assumed by the Second court, and therefore irregular. The second case decided that the Second court could issue an order of seizure and sale against succession property, and reviewed the previous conflicting decisions upon that power, but expressly and in unmistakeable language announced that, although there had been contrariety of opinion touching the power of the Second court in that particular, it had never been doubted since Boguille v. Faille, 1 Annual, 204 that the courts of ordinary jurisdiction could issue executory process against the property of successions.

Lastly, the executors urge that the notes being prescribed on their face, no. order of seizure and sale could issue without the production of authentic evidence before the judge of the interruption of prescription. We have disposed of that objection heretofore. Williamson v. Richardson, 30 Annual, 1163.

The lower court dissolved the injunction with costs. We are asked to allow damages. The plaintiff’s notes bear interest, and five per centum upon their amount was properly allowed as attorney’s fees, stipulated in the mortgage. The injunction was provoked by representations of a succession. It is not alleged, ncr is it apparent, that they have any personal interest to subserve by this action. We must presume and believe that they were endeavouring merely to protect the interests of the succession, and we will not therefore inflict damages.

Judgment affirmed.

Rehearing refused.


text:
    No. 7276.
    State ex rel. W. W. Farmer vs. Judge Parish Court of Ouachita.
    The service on an administrator of the order oí the court to file an account of his administration is a sufficient notice to him. No citation need be served on him, nor is he entitled to the delay of ten days for responding to the order.
    A party may be imprisoned for a contempt of court without the previous finding of an indictment, or laying of an information against him for the oiiense.
    An appeal does not lie from an order of the probate court imprisoning an administrator for contempt of court in refusing to obey a peremptory mandate to file an account within a certain delay.
    ^ PPLICATION for a mandamus.

      Cobb & Gunby for relator.

      A. L. Slack, parish judge, in person, and B. W. & B. Richardson and Richardson & McEnery for respondent.
   The opinion of the court was delivered by

Manning, C. J.

This is a proceeding by mandamus t'o compel the parish, judge of Ouachita to grant an appeal from his order imprisoning the relator for disobedience of a mandate to file an account of his administration of the succession of O. H. Morrison.

Creditors of the succession had instituted proceedings against the relator, calling for an account of his gestión, and on May 27,1878, a formal judgment was entered ordering the administrator to file such account within ten days. In the following month, the administrator applied for an extension of the time, and it was granted. On July 1st. another application was made for a further extension, and it was also granted — the 19th. of same month being fixed as the limit. On Oct. 7th. following, no account having been filed, Wallace & Co, and other creditors of the succession, took a rule upon the administrator to shew cause why he should not be imprisoned for disobedience of the order of the court, and until he does obey that order, which was duly served. On the following day a peremptory order was made that the administrator should file his account on or before the 14th. of same month under penalty of imprisonment. An exception was then filed to the proceedings on three grounds; — 1. That no mandate had issued to the administrator, and therefore the motion to imprison was premature; 2. That no citation or copy of petition had be-'n served on him, and the ten days delay had not heen accorded him for answering; 3. That no indictment or information had been found or filed against him, and that he cannot be arrested and imprisoned without such indictment or information, and that any proceeding to deprive him of his liberty without such criminal prosecution is unconstitutional, and all laws authorizing it are void.

The second and third grounds of exception are untenable. The service of the order of the Court was the proper manner of notice under the rule, and the administrator was not entitled to the delay given for answering an ordinary suit. It cannot be seriously contended that a court cannot imprison for contempt unless an indictment for the of-fence has been found, or an information laid. That would be equivalent to saying that a ciurt cannot punish a contempt by imprisonment, since the act committed is in most cases not an indictable offence. The lower Court evidently considered the first ground more serious, as it proceeded immediately to obviate the objection.

On Oct. 9th., after the exception was filed, a peremptory mandate issued in the name of the State, commanding the administrator to file his account on or before Oct. 14th. under penalty of imprisonment. The account was not filed, but on that day the administrator answered. He alleges that his delay has been caused by circumstances over which he had no control — that during the month of July he was engaged in attendance on this Court at Monroe, he being a practising lawyer — that shortly afterwards he was absent at a political convention at Baton Rouge, and before he could get home, the yellow fever had appeared, and he was quarantined on his return — that after he was permitted to enter the town of Monroe where he lives, he was prostrated by a dangerous illness, and has not yet recovered from its effects — that no person but himself can file an account, and he has been physically unable to do it — that he has either consumption or some kindred disease, and is undergoing medical treatment, and that confinement in jail would develop the disease, and he disclaims any desire to evade the provisions of the law prescribing his duties.

Upon the rule and answer trial was had, and he was given until Oct. 28th. to comply with the mandate. On that day nothing had been done, and he then presented a petition to the court, averring that his health had become worse; and that he had been working on the account but had not been able to finish it — that he has no intention of leaving the parish until the account is completed and filed, and that he intends to work upon it without turning aside to any other matter, and prays that the time be again extended.

■ The Court refused to grant any further delay, but did in fact grant a short time. On Oct. 31st. another peremptory mandate issued to the administrator to file his account on or before Nov. 4, or failing to obey, that he should be imprisoned until he does file it. It was not obeyed, and on Nov. 9th. the judge ordered that the administrator be imprisoned until he does obey it.

An appeal was prayed from this order, which being refused, application was made to us for a mandamus. It was issued in the alternative form, and the judge having answered, we have now to determine whether it shall be made peremptory.

The sole question for us to answer is, whether an appeal lies from such an order. The relator alleges that his personal liberty is worth more than five hundred dollars to him, and so might any one allege who had committed any sort of contempt, and if such allegation could give us jurisdiction, no court could exercise any disciplinary authority, since the infliction of punishment would be insLantly arrested by a suspensive appeal. Neither the matters involved in the settlement of the succession, which amounts to several thousand dollars, nor the defences or excuses made by the administrator for not filing his account, are to be considered now. If the parish judge had authority to punish for contempt, we cannot' interfere with, or impede the exercise of that authority. The Oode of Practice declares that all judges possess the powers necessary for the exercise of their respective jurisdictions, though the same be not expressly given by law, (art. 130) and even without that enactment, it is a power inherent in a court to repress disorder, and punish infractions of its discipline, for laws, says Blackstone, with•out a competent authority to secure their administration from disobedience and contempt, would be vain and nugatory, and therefore the ¡power to punish contempts, by an immediate attachment of the offender, results from the first principles of judicial establishments, á Oomm. 286. In the next article of the Code of Practice, express power is given to the .judges to punish all contempts of their authority, and under the heading of accounts to be rendered by administrators, it prescribes imprisonment as the means to be employed to compel their rendition. If at the ■expiration of the time given by the judge, an administrator refuses or neglects to render his account, the judge shall issue a mandate directing him to comply with the provisions of the law, and if within the time ■allowed to obey this mandate, the administrator persists in refusing to render an account, without tendering a good reason for the delay, 'the judge shall order him to be arrested and imprisoned until he renders the ■account, art. 1011.

The relator bases his right of appeal in part upon the allegation -that the order is a final judgment, and its enforcement would work irreparable injury to him. Perpetual imprisonment would be an irreparable injury, but the duration of the imprisonment depends upon the administrator’s own action. When he obeys the order, his imprisonment terminates. Quoad the succession, the order is manifestly interlocutory, It is made in the course of legal proceedings for the purpose of pushing them on to a finality. Quoad the relator it is not final. By obeying it, he at once performs an important act in his gestión, and lays the basis for that final decree which shall approve his account, or sustain objections to it.

We do not omit noticing that the order to imprison has not been literally enforced. The relator is in jail only constructively. He has ■been on parole, as is said in the judge’s answer, the Sheriff being directed to hold him in custody, and to permit him to remain at his residence. This was humane, and under the circumstances of this case, very proper. The relator’s health, and his professional standing, justify -this relaxation of rigour, and as two months have now elapsed since -the order was made, we do not doubt that he has availed himself of that time to finish the account which the creditors hada right to require, ■¡and which the judge several times granted time for its preparation.

We cannot abridge the power of inferior courts to compel obedience to their lawful mandates, and if imprisonment of an administrator be a. harsh mode of compelling him to do an act of administration, or if it be a senseless mode, since he would be less able to prepare an account in jail than out of it, the abrogation of that mode of compulsion must be left with the legislature. So long asit is permitted by law, «courts may be compelled by creditors to apply it.

The peremptory mandamus is refused at the costs of the relator.


author: Spencer, J.

text:
    No. 5557.
    Rosalie Matchler et al. vs. the Bank of Lafayette.
    The surviving wife, whose husband died previous to the twenty-ilfth of March, 1844. has no right of usufruct in the half of the community property belonging to the children of herself and her deceased husband.
    APPEAL from the Sixth District Court, parish of Orleans, Saucier, J.

      Louque & Fernandez for plaintiffs and appellees.

      Breaux, Fenner & Hall for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

This is an action of partition. The only question submitted and necessary to. decide is, whether the surviving widow has the usufruct of her children’s half of community property where the deceased husband died in 1841 ? The law conferring this right of usufruct on the surviving husband or wife did not exist in 1841, and was only enacted 25th March, 1844. See act No. 152 of 1844. On the death of the husband, therefore, in 1841, his half of the community vested, in full ownership, in his children, and the act of 1844 could not divest them of that right. Laws prescribe only for the future. C. C. The widow had no usufruct in this case.

We see no error in the judgment, and it is affirmed.


text:
    No. 7282.
    State ex rel. Widow Merz et al. vs. Judge of the Third District Court.
    Whore an injunction, restraining the execution of an order of seizure and sale on the ground that the debt was not exigible, is dissolved, and the plaintiff in injunction takes a suspensive appeal from the judgment of dissolution, the lower court will be prohibited from 'ordering the execution of the seizure and sale (because of the subsequent maturing of the debt) until this court has passed on the question of the prematurity of the suit involved in the appeal.
    j^PPLIOATION for a writ of prohibition.

      B. Stewart Bennee and B. L. Belden for relators.

      Chas. F. Schmidt for respondent.
   The opinion of the court was delivered by

Spencer, J.

Relators obtained an injunction to stay execution of a writ of seizure and sale obtained against them in the suit of “ Saloy vs. Widow Merz et al.” The sole ground upon which that injunction was asked was prematurity of demand — that the said Saloy, upon the condition of their paying the interest, had agreed to extend the time of payment of the mortgage notes one year, i. e. from the 23d Nov., 1877, to-23d Nov., 1878. They alleged that they had complied with the condition and were entitled to the extension. This order of seizure was granted to Saloy on 20th May, 1878, and enjoined on same day by relators. It was tried, and the injunction dissolved, from which decree relators took a suspensive appeal on giving bond for costs. After this appeal had been perfected, to wit: on 30th Nov., 1878, Saloy’s counsel suggesting to-the court that the time of extension claimed by relators for payment of said note, and for which said injunction was granted, had expired and the injunction thereby become inoperative, moved the court for an order-directing the sheriff to proceed with the execution. This order was granted, except for the sum of $874, the amount which relators claimed to have paid as interest on the mortgage note. The matter before us is. an application for prohibition against this order, on the ground that by the appeal the Third District Court was divested of all jurisdiction, and could grant no orders in the case. The reply of the judge may be summarized thus:

“What was the thing demanded in the injunction suit? It was that Saloy be restrained and enjoined from executing his mortgage until 23d Nov., 1878. The court ordered that he be so enjoined. That is the order that was kept in force by the appeal. On the 23d Nov., 1878, the injunction expired by limitation. Thereafter there was no injunction existing, and therefore none to be suspended by the appeal. The court in ordering-the sheriff to proceed did not violate the injunction, or invade the jurisdiction of this court — for there was then no such order, and therefore no jurisdiction thereof in this court.”

We confess that there is much force and plausibility in these propositions of our brother of the district court. But there is a view of this-case, not presented in argument, which we think forces us to differ from the conclusions of the judge a quo. The real defense made by relatorswas the prematurity of plaintiff’s demand ; that plaintiff had obtained an order of seizure and sale on a debt not due. That was the allegation upon which the injunction was asked. Now the question thus raised, to wit: Whether plaintiff made his demand before his debt was due, must be determined and decided upon the state of facts existing at the time the suit was brought. If the debt was not due, plaintiff’s proceeding was wrongful, and properly enjoined. This wrong is not righted, this defense is not defeated, by the fact that before the issue is decided the debt becomes due. The penalty for bringing an action prematurely is its dismissal, unless defendant waives the exception. The exception of prematurity is not defeated by the subsequent maturity of the cause of action. If this were so it would often enable a plaintiff to avoid the effects of his own wrong by the commission of another, by postponing a. ■decision until his debt had matured. So we hold that the question of .prematurity must be tested by the facts existing at the date the suit is brought, and that the penalty is dismissal of the suit if found premature. Under this view, it is manifest that the expiration, pending the ¡suit, of the time of the alleged extension, does not relieve the plaintiff from the consequences of his wrongful act; that the relators have the right to have this court review the judgment of the district court on the question of prematurity, and if the exception is found to be well taken, •they have the right to demand the maintenance of their injunction and •the setting aside of plaintiffs order of seizure. The district judge, we think, invaded the j urisdiction of this court in rendering said order.

It is therefore ordered and decreed that the writ of prohibition herein issued be made peremptory at costs of respondent.


author: Manning, O. J.

text:
    No. 7301.
    The State ex rel. M. H. Redon vs. J. H. Spearing et al.
    The Supreme Court is without jurisdiction to issue a writ of prohibition to a district judge, to whom a petition has been addressed, praying that testimony be taken in the case of a contested election of a member of the Legislature, for- ' bidding him to grant an order for ihe production of ballot boxes and counting of the ballots. In such eases the lower judge acts, not in a judicial capacity, but merely as a commissioner.
    j^PPLICATION for a writ of prohibition.

      B. F. Jonas for the relator.

      F. G. Zacharie and G. L. Walker for respondents.
   The opinion of the court was delivered by

Manning, O. J.

The relator alleges that he was elected to the lower house of the legislature last November, and that the respondent ■Spearing intends to contest his election, and has served due notice 'thereof, and has also presented a petition to the judge of the sixth district court of this city, praying that the testimony of witnesses be ■taken in support of his (Spearing’s) claim. He farther alleges that the .judgehas issued an order to the clerk of the Superior Criminal Court to produce the ballot boxes containing the votes cast at the election at five •several polls, and has also ordered those boxes to be opened, and the ballots therein, to be counted. The clerk of the Criminal. Court is the legal custodian of the ballot boxes. The relator charges that the-judge is exceeding his jurisdiction in granting this order for the production of the ballot boxes, and for counting the ballots, and he therefore prays •a writ of prohibition.

Upon a rule to sliew cause why the writ should not issue, which we granted, both respondents deny that this court has jurisdiction over the subject matter.

The application to the judge to take testimony is made under this provision for contested elections of Representatives; — any judge of a court of record, or two justices of the peace shall issue subpeenas for witnesses, and shall have power to compel their attendance, and the depositions taken before them shall be transmitted to the Secretary of State, who shall lodge them within three days after the succeeding session with the Clerk of the House of Representatives. Rev. Stats, sec. 1432.

It would seem that a judge, acting under this law, is' not sitting in his judicial capacity, but merely as a commissioner before whom witnesses are to be brought, and that it is only the depositions of witnesses that he is empowered to take, for the law is special, and no power should be exercised under it that is not specially conferred. Whether the production of a ballot box, and the breaking of its .seals, and the counting of the votes therein deposited, can be legitimately included under an authorization to summon witnesses and take their depositions, is a matter for the judge, who is acting under this special law to consider. We can only observe that more than usual caution and hesitancy should be observed in determining to do an act which does not appear to have been expressly authorized. The act of Congress relative to the same subject gives a more enlarged authority than our statute in this, that it specially provides for the production of papers. U. S. Rev. Stats, sec. 123.

The question of jurisdiction however is the vital one for our consideration. The House of Representatives is the judge of the qualifications, election, and returns of its members, but a contested election shall be determined in such manner as may be prescribed by law. Constitution, art. 34. The law has not provided any special manner in which the contested election of a representative shall be determined, and therefore the House is the exclusive judge of such election, and the returns thereof. To facilitate it in the performance of this function, permission is accorded to all parties claiming the seat to take the depositions of witnesses, which are required to be transmitted to the Secretary of State, who must lodge them with the clerk of the House.

There is no law providing for a judicial scrutiny of the votes cast lor Representatives. The judge of the Sixth Court is not hearing and determining a cause, but merely sitting as commissioner to take depositions. The writ of prohibition only issués to courts of inferior judges which exceed the bounds of their jurisdiction. Code Prae. art. 845. .It is an order rendered by an appellate court of competent jurisdiction, and directed to the judge and to the party suing in a suit before an inferior court. Ibid. art. 846.

There is no suit here, and no judge acting in his judicial capacity, and therefore ther.e is nothing upon which the writ can operate.

It may be that the commissioner is about to exercise a doubtful, or undelegated power. It may be that the exercise of such power is wholly unnecessary, since ultimately the House of Bepresentatives' can and will do (if it be necessary) what the. commissioner proposes to do, viz break the seals of the ballot boxes, and count the vptes, and therefore the commissioner will have done a supererogatory act, but we are-without jurisdiction to issue a writ to him which shall prohibit him from doing that act. And since the determination of the election contest of a Bepresentative is a matter wholly delegated to the legislative department of the government — -of co-ordinate and equal dignity and authority with the other departments — it is becoming in the judiciary to abstain from even an appearance of trenching upon a domain exclusively appropriated to others.

The writ is. refused at the cost of the relator.


text:
    No. 7198.
    Philip Drumm, Executor, et al. vs. Louisa Kleinman.
    Whan it appears from the evidence that property bought during marriage by the wife, and in her namo, with the authority of her husband, who was a party to tho deed of salo, was paid for out of money that belonged to the wife, neither the executor of the husband, nor any devisee of the husband, who is not his creditor, or forcod heir, can contest the widow’s title to the property, and set up that it is community.
    Property bought by a wife, in her name, after the institution of her suit for a divorce and separation of property, which were subsequently decreed in her favor, is presumed to be her separate property.
    ^PPEAL from the Parish Court of Jefferson. Hyman, J.

      Richard Shackelford for plaintiffs and appellees.

      James Brewer and W. J. Me Cune for defendant and appellant.
   The opinion of the court was delivered by

Manning, C. J.

This is an action of partition. Louisa Kleinman, the defendant, had for her first husband Charles Gelbke, and -for her second, Caspar Weisz. This second marriage took place in June 1854-Two improved lots in Gretna were bought by Mrs. Weisz in October 1856, the price being seven hundred dollars, and the title thereto being taken in her name, and reciting that the money was paid out of her paraphernal and separate fund. Her husband joined in the act, authorizing her to buy and sign.

In April 1877 she sued her husband for a divorce, alleging cruel treatment, and for a settlement of the community, alleging that the two lots bought as above stated were her paraphernal property, and prayed that the house upon them be assigned as her residence pending the suit. She obtained her decree of divorce Dec. 8, 1877. On the 15th. of that month she bought other lots and paid four hundred and seventy-five dollars for them.

Caspar Weisz died in 1878, having made a last will in March of that year, of which he appointed Philip Drumm executor, and by which he devised and bequeathed to his nephew John Kretz and his stepson Louis Gelbke all of his property. There were no children of his marriage with defendant. There were four children of her marriage with Gelbke, and one of them is one of the devisees under the will. The plaintiffs in this suit are the son of the defendant, and Kretz, who claim us universal legatees and instituted heirs, and Drumm the executor. Their claim is that this property, bought by the defendant as already detailed, is a part of the community, and they pray its partition. The defendant denies that this property is community — claims it as paraphernal — and alleges that her separate funds, derived from her occupation of public merchant, were used by Caspar Weisz for the purchase of whatever property he had, and prays a sale of all the property inventoried, except that claimed as paraphernal, to re-imburse her.

During the first marriage with Gelbke, the defendant kept a grog-shop, her husband pursuing his occupation of barber. Both of them appear to have been industrious and thrifty. They maintained themselves and their family, which rapidly increased to four children, and at Gelbke’s death, there was some property. The widow bemoaned her loss, wringing her hands, and “ crying and wondering what she should do,” and the plaintiffs interpret that wail of distress as an admission that she had nothing to live on or to support her children. Far from it. It was but the natural and spontaneous expression of her sense of present loneliness in the first moments of widowhood. She recovered from it, and married again in less than a year. Shortly after this second marriage the business which she had been carrying on was enlarged. Weisz, the second husband, was the driver of a milk cart at twenty dollars a month for wages. It is said he had saved six hundred dollars, •and on his marriage with the defendant, he quitted his former occupation, and came to live with her. The plaintiffs’ theory is that his six hundred dollars was the foundation of all future acquisitions, and that .it was his judgment and attention to business that opened a wider field, wherein was afterwards reaped the fruits that form the subject oí' contestation now.

Of course that, or the opposite conclusion, is to be reached only by a careful survey of all the evidence. We shall not recapitulate it. There-are salient facts developed in it that satisfy us that the statement made in the deed of 1856, that the property then bought was paid for by the-wife out of her separate estate, is the truth.

All the purchases for her grocery were made by her. She was the-active manager of her business, and gave personal attention to its conduct. It increased and became profitable. Those who sold to her received payment from her, and knew only her in the business. If Caspar Weisz had been the real owner of the grocery, or the furnisher of its stock, and the manager of its affairs, we should hear more of him from those who dealt with the store — from those who sold to the-grocery as well as those who bought from it. She had money. Her savings increased rapidly. There is nothing improbable in her having-seven hundred dollars, the profits of her business, with which to buy property. She bought another piece of property during the year the-divorce suit was pending, and a few days after its termination, and paid for it. The husband signed the deed of 1856 conveying the property to-her, in which was recited the fact that the money was hers.

Can the present plaintiffs gainsay this declaration in the deed, to which the husband had put his hand ? If they were creditors or forced heirs of the testator, there is no doubt they could. Were it otherwise, collusive declarations made by parties to an authentic act would conclude those whose interests are affected by them. But these plaintiffs are neither creditors nor forced heirs. One is the mere executor of the will with no substantial interest in the question. The other two are simply subjects of gratuitous bounty, who have no claim to any of the testator’s property except that derived from the will. They stand in his shoes. They are bound by his acts and by his words. They cannot claim as his that which he declared or admitted was another’s. Hebert v. Sage, 29 Annual, 511. Stewart v. Mix, 30 Annual, 1036.

The conjecture of the plaintiffs is that he submitted to having the deed taken in the name of his wife because he had been indicted for selling liquor illegally. There is proof, satisfactory to us, that the purchase price of the property bought at the first sale, was the wife’s. The second purchase was after the institution of her suit for divorce and separation of property, and the plaintiffs have no claim upon it, and so-the lower court adjudged. But the first purchase was erroneously decreed to belong to the community.

We can deal with only a part of the case now. The claim of the defendant for a sale of the property of the testator, and a re-imbursement of alleged paraphernal funds out of the proceeds, must be adjudicated below. The rights of the defendant in all matters, not embraced in our decree, are reserved.

It is ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and that the property conveyed to the defendant by deeds of October 21 1856 and December 15,1877 is decreed to be her individual and separate propeity, and not liable to be partitioned as a part of the succession of Caspar Weisz — that the rights of the defendant in all other matters set up in this suit are reserved — and that the cause be remanded for further proceedings according to law, the plaintiffs paying costs of appeal.


text:
    No. 7112.
    Succession of Eliza P. Macias.
    A legacy left to a minor grandchild of the testator on condition that the property-composing the legacy shall remain under the administration of the testator’s executor until the legatee’s majority is a valid disposition, and the father of the minor, as natural tutor, has no right to claim the administration of the property.
    APPEAL from the Second District Court, parish of Orleans. Tissot,. J.

      Sam. P. Blanc for executor appellant.

      A. & W. Voorhies, Lauque & Fernandez for appellee.
   The opinion of the court was delivered by

DeBlanc, J.

In 1876, on the 8th of September, Mrs. Eliza Peck Macias made a testament, in and by which she named one Luc Beebe as the executor of her last will, with seizin of the whole of her succession,, and — as her universal legatee — her granddaughter Marie, then aged nine years and a half, and born of the' marriage of her daughter with Doctor Octave Anfoux, Shortly after, on the 12th of December and by a codicil, she left to Mrs. Auguste Dubuclet — besides four lots of ground and some furniture — the sum of two thousand dollars.

The testament and codicil were presented to the court, their execution and registry ordered and letters testamentary delivered to Luc Beebe.

Mrs. Macias died in January 1877; Mrs. Anfoux died before her mother, divorced from her husband. At the death of her grandmother,, Marie who — until then — had been in the custody of said deceased— passed into that of her father, who was confirmed as her natural tutor, and who — in that capacity — contends that there is no necessity to subject the estate of Mrs. Macias to the costs of an administration, claims-to be put in possession of said estate and to administer the same as tutor of his child.

Erom the allegations and prayer of the tutor’s petition, the object of his action is to recover the legacy made by Mrs. Macias to her grandchild, to enforce the right acquired by the latter, under a testament, the execution of every clause of which is ordered by the decree of •a competent court, and one of those clauses directs that the whole of the tutrix’s estate shall be administered by the executor of her will, without the intervention of any body else, until the majority of her granddaughter and universal legatee.

The tutrix could have disposed in favor of any one, and deprived her descendant of two thirds of her estate, and — it may be — would have done so, had she imagined that the condition attached to her donation ■could not be sanctioned by the courts of the State, and that — against her manifested will — her estate would pass into the hands of her son-in-law, as tutor of her legatee. This it was her declared intention to prevent, for she expressly enjoins that Dr. Anfoux, who — as her debtor-then held and still holds inore than the legitimate portion of which she could not have disposed to the prejudice of her granddaughter, shall be excluded from any participation in the affairs of her succession.

A conditional legacy — when the conditions imposed by the testator are neither impossible nor reprobated by law — must and can be accepted by or for the legatee but in accordance with the terms of the will. Whether of age or under age, the legatee cannot be allowed to divide his acceptance, to take the donation and repudiate the conditions on which it was made, or take it on conditions which differ from those fixed by the donor. He must accept it as it is, or reject it.

C. 0. 986 (980) — 1016 (1009) — 976 (971).

The condition of the donation made by the testatrix is that whatever she left to her granddaughter, shall — until her legatee’s majority, be administered by the executor of her will. That is not an impossible ■condition. Is it one reprobated by our legislation ? It is not, and no reason can be suggested why it should be reprobated. Those who — by their labor, frugality or otherwise — acquire an estate, should not be restricted in the undeniable privilege which they have of disposing of that estate as they please, and so «as to gratify their affections, hatreds or caprice. Those who have no right to claim that which is tendered to them as a favor, as a testimonial of friendship or esteem, should not be permitted to accept the favor and disregard any legal conditions on which it was tendered.

In this instance, the testatrix named her universal legatee, gave her less a fraction — all that she left. The title to what she thus gave vested in the legatee from the date of her death, and — had she died after her grandmother — that title would have passed to the legal representatives of the legatee. The condition imposed by a clause of the will, and it does not appear to be an extravagant one, is that said legacy be not placed under the control of one who was the debtor of the testatrix, who disputed the validity of her claim against him, and who — now— owes to his child and ward that dispute! claim, which forms the largest part of the grandmother’s donation. The clause referred to merely suspends, until the minor attains the age of majority, the delivery of what she has already acquired under the approved and registered will of her ancestor.

In Clague’s widow vs. Clague’s executors, reported in the 13th L. p. 6, our esteemed predecessors, held that “ a disposition by which the-property of the estate was to remain in the hands of the executor until the majority of the testator’s children and legatees, was a ficlei commission, because then the executorship expired at the end of the year, reckoning from the commencement of the seizin, and the testator had not the power to extend the period fixed for its termination.

The law now provides that “ executors shall continue in office until the estate be wound up, and — in this instance — Mrs. Macias has merely postponed the delivery, until her grandchild’s majority, of the legacy of nearly the whole of her estate, to the absolute ownership and entire revenues of which her legatee is actually entitled, and has been entitled from the death of the testatrix.

That disposition does in no way — change the order of inheritance, create a new tenure of property, tie up an estate in perpetuity, place it for any length of time out of the reach of any legal alienation, vest a title in one, the beneficiary interest in another ; and as — thereby—no donee or legatee is charged to preserve until death and then return any thing to another, or given any right which is to pass to any other at a specified period or upon a specified condition — and, in as much also as by its terms, the testatrix merely provided that the legacy, which is a part of her unsettled estate, should — as the estate itself — be left in the hands of an agent selected by her, recognized by our laws, qualified under the decree- of a competent court, that disposition — ignored but as yet unassailed — has none of the elements which constitute either a substitution or fidei commissum, and — by inference — seems to be authorized by the article of the Oode which indefinitely extends the duration of the executorship, and that which declares that “ a father or other ascendant can order — by bis will — that no partition shall be made among his minor children or minor grandchildren during their minority,” in order — doubtless—to protect the inheritance against the errors or misfortunes of a tutor’s administration, and to more effectually secure the succession to the heirs or legatee. O. 0.1301 (1224) 1373.

Those reasons dispense us from discussing the other questions raised by the parties’ counsel. We, however, consider it advisable to state that the clause of Mrs. Macias’ will which excludes, from any participation in her affairs, the father of her universal legatee, can not prevent him from supervising as tutor — unless his pretended incapacity be judicially ascertained and declared — that branch of the executor’s administration which relates to the interest of the minor in the succession of her grandmother; and — to guard said interest — he can, if necessary, require from the executor new and additional security for the faithful performance of his duties, and as often as the law prescribes. R. O. C. 1673.

It is — therefore—ordered, adjudged and decreed that the judgment appealed from is anulled, avoided and reversed, and plaintiff’s demand rejected at his costs in both courts.

Rehearing refused.


author: DeBlanc, J. Spencer, J.

text:
    No. 6999.
    Succession of Stephen D. Linton. On Opposition to the Executor’s Account.
    The debts of the succession of a deceased person must be paid in preference to the debts of the deceased.
    In determining the amount to be allowed to an attorney for professional services in behalf of á succession the court will be guided by the extent and character of the services rendered, and also by the size and value of the succession.
    An executor who administers a succession which has already been partially administered, can only claim a commission proportioned to his services. The fact that his predecessor in the administration received no commission will not . entitle him to make any additional claim.
    An executor is entitled to a commission of five per cent on any sum not embraced in the inventory and actually collected by him.
    An executor in filing his account has no right to reserve an amount in blank for discharging the necessary remaining expenses of closing the succession.
    REPEAL from the Parish Court of Rapides. Clements, J.

      B. J. Bowman for executor and appellee.

      Jas. O. White, A. Cazábat, B. F. Jonas, Breaux, Fenner & Hall, Merrick, Bace & Foster for opponents and appellants.
    The opinion of the court on the original hearing was delivered by DeBlanc, L, and on the rehearing by Spencer, J.
   DeBlanc, J.

J. M. Wells, Junior, the public administrator of the parish of Rapides, took charge — as executor — of the succession of Stephen Duncan Linton, since the 7th of July 1878. The only property of any value then owned by the succession and with which he has had any thing to do, was a plantation appraised in 1870 at $24,000 — in 1875, at $18,000, and which — on the 17th of March 1877 — was sold at public auction for $5500. Before 1873, the succession of Linton was undet the ■administration of O. K. Hawley, the then public administrator of the parish of Rapides.

‘On the 9th of April 1877, Wells filed-^-as executor of said succession — a provisional account of his administration, and the State National Bank and Charles Fenner oppose the allowance of nine of the items therein charged against said succession, to wit:

1. Two different commissions of five per cent each, claimed by the ■executor, one computed on $18,000, the amount of the inventory of 1875, the other on $609, the amount of rents which he alleges that he has collected.

2. Four accounts of R. J. Bowman — an attorney at law, aggregating $2600, for professional services.

3. A fee of $600 acknowledged by the executor as' due to R. P. Hunter, and transferred by the latter to William Grant.

4. A claim of $300 of Race, Foster & Merrick, for services in a federal court, and

5. A charge in blank for unforeseen expenses.

The opponents are creditors of the estate for more than one hundred thousand dollars, and they complain that out of $6100, the entire amount to be distributed, the executor proposes to retain for himself and to pay to his attorneys the sum of $4430, leaving to be divived among themselves and others a balance of $1670.

This court has, long since, justly held “that the debts of a succession, like those of a ceding debtor, are of a higher dignity, and are to be paid before those of the deceased, or. of the insolvent. As to them, it is not merely a question of privilege: the services nominally rendered to the estate are, in reality, rendered to the heirs and creditors themselves.”

3 M. 364.

It is always — for a court — a delicate task to fix the disputed value ■of an attorney’s compensation. In this instance, it is as difficult as' delicate — for, the evidence shows that the professional services, for which the compensation is claimed, have inured to the benefit of the succession, and that they are worth the amount allowed by the lower court; but the evidence also shows that — if allowed in full — the fees and commissions carried in the provisional account would absorb mo'rfe than two thirds of the entire assets of the succession.

In 12th R. 414 Judge Martin — the organ of the court — said': “The labor of an attorney ought to be rewarded according to its nature, extent, and the degree of skill and care it demands. The care is certdinly increased by the value of the estate, etc.” We consider — as did our predecessors — that, in matters concerning successions--where there is no hope of recovery beyond what the deceased has left, when the question is less what is due than what can be paid, the attorney’s fee should be measured to the proportions of the estate.

The succession of Linton appears to be more than twenty times insolvent, and — we are bound to presume- — was completely insolvent from the day on which it was opened. It is and ever was the property of its-creditors. This being conceded, to do what he has done, to secure for them a sum of $5500, what is it reasonable to believe that those creditors would have been disposed to offer and allow to Mr. Bowman ?

The plantation and the rent due for the same composed the whole-succession of Linton, and that plantation had passed from its possession. To recover that property, a suit had become necessary, and that, suit was conducted by Mr. Bowman in the district and Supreme Court-Without his efforts and his services, the succession would have been-composed of exclusively debts and charges.

Under these circumstances — when, so far as we are informed, the whole of the troubles and labors of that litigation devolved on the attorney, is it probable that he would have been offered or would have accepted less than one third of whatever he would secure for the succession? His efforts were successful, and we consider that — for all the-services which he has rendered to said estate, up to the time when this-appeal was submitted to this court, he is entitled to one third of the assets which were realized by his industry — that is one third of $5500.

This view dispenses us from discussing whether the succession is. or is not liable for the other claims of said attorney, as, under any circumstances, it would be inequitable to allow him less than we propose to do, for those services which — it is admitted — have been rendered to and are chargeable to the estate.

The cause which induces us to reduce Mr Bowman’s fees, justifies-the reduction of that of Messrs. Race, Foster & Merrick, from $300 to $250. As to Mr. Hunter’s claim, it was already partly disallowed, and we leave it as fixed by the parish court.

The succession of Linton was opened in 1867, and it was in July 1873 that Wells took charge of the same. It had then been partially administered by Hawley; the inventories were made, suit had been, brought, and it is evident that — at that date — at least one half. of what. was to be done to settle the succession of Linton had been accomplished,, and it matters not whether Hawley did or did not receive any commission : .his successor’s administration was a fractional one, and he can justly claim but a commission proportionate to his services, and that is — at most — two and a half per cent on the inventory of 1875, or $456-The Code so expressly provides and. this court has thus invariably held. R. O. 0. 1069 — 1201—5 N. S. 229. 1 R. R. 400, 3 A. 624 — 4th A. 386. .

As to the rent of six hundred dollars, no mention of it is made in either of the inventories, and presuming — as we do — that it was collected by Wells, we are of the opinion that he is entitled to a commission of five per cent thereon.

Were it not that the succession of Linton is absolutely insolvent— that it appears to have been renounced by his heirs, and that the parties to this controversy have placed before us an admission that, since July 1873, it has been administered upon by Wells, in his capacity as public administrator of the parish of Rapides — we would have, under his own pleadings and according to the views expressed in the matter of the succession of Frangois Bougére, lately decided by ourselves, reduced his commission to one half of that of a dative executor ; but we are precluded from doing so, by the aforesaid admission and the uncontradicted presumption that the estate of Linton is vacant.

The opposition to item No. 29 of the account cannot be sustained. That item, though in blank, provides for exclusively the costs of filing and homologating the account. The amount of those costs is fixed by law, and, as that amount was not and could not have been positively and oorreetly ascertained when the tableau of intended distribution was deposited in court, the creditors’ right can — in no way — be affected by the mere mention that — whatever they may be — they will have to be deducted from and paid out of the funds to be distributed.

It is, therefore, ordered, adjudged and decreed that the judgment ■of the lower court is amended, and that in lieu of the several amounts to them allowed in the provisional account filed by J. M. Wells, Junior, as executor of Stephen Duncan Linton, R. J. Bowman is hereby allowed eighteen hundred thirty-three dollars and thirty-three and one third cants — Race, Foster & Merrick two hundred and fifty dollars — and said Wells four hundred and eighty dollars.

It is further ordered, adjudged and decreed that — as amended — the judgment of the lower court is affirmed : the costs of the appeal to be paid in solido by the said J. M. Wells, Junior — R. J. Bowman, Race, Foster & Merrick and William Grant.

The Chief Justice recused himself in this cause, having been of counsel.

On Rehearing.

Spencer, J.

The rehearing in this case was granted in order to reconsider the allowances made by us for attorneys’ fees.

The evidence shows that the estate consisted uniquely of the plantation, for the recovery of which the attorneys’ fees a,re claimed.

As the attorneys would, have received absolutely nothing had their efforts failed, we do not believe any attorney in good practice would under these conditions have undertaken the litigation in prospect at a less, per centum than we have allowed.

We see no reason to modify our former opinion and decree herein,, and it is ordered that the sum remain undisturbed.