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

text:
    No. 1007.
    Mrs. S. E. Myers, Administratrix, et al. vs. T. G. & F. E. Brigham.
    The judgment appealed from, being* rendered against all the Defendants indiscriminately and without severance, and being, therefore, indivisible, and proper showing* being made in this Court that one of said Defendants was dead at the time the judgment was rendered and the appeal taken, it is ordered, on Motion of the legal representative of the dead Defendant, that the judgment be set aside and the case remanded to the lower Court for the appearance of proper parties.
    APPEAL from the Sixth District Court, parish of Morehouse. Sail, judge ad hoe.

      Todd & Todd for Plaintiffs and Appellees.

      D. C. Morgan and Richardson & MeSnery for Defendants and Appellants.
   On Motion to Bemand.

The opinion of the Court was delivered by

Bermudez, C. J.

On the sworn and admitted averment of the death of W. A. Gage, represented as one of the defendants in this case, — prior to the rendition of the judgment appealed from, and, therefore, to the taking and perfecting of the appeal obtained in his name, in ignorance of his demise, — counsel for his executor ask the court to annul the judgment, and to remand the case for the appearance of proper parties.

If it be true that Gage -had an interest at stake which required assertion for vindication, that he did assert it, that the judgment on it is one by which he can be aggrieved, there can be no doubt that the motion should prevail.

To determine the question presented, we must inquire into the proceedings, but we have no authority to look into the evidence introduced on the trial of the case.

An examination of the pleadings shows that this is a petitory action brought against the defendants as tenants in possession, who, upon disclosing Winston, Morrison & Co. as their landlords, were discharged from further concern. On the representation that the owners named were absentees, a curator acl hoc was appointed to them, who answered •on their behalf. Winston, Morrison & Co., however, subsequently appeared, together with W. A. Gage, represented as the then sole real owner, all residing in New Orleans; and, by one and the same answer, in which they styled themselves defendants, they joined issue with the plaintiff.

The right of Gage to appear and defend the action, as he did, not only does not seem to have been disputed, but, on the contrary, appears to have been admitted. The record discloses that, in April, 1879, a rule was taken on plaintiff, in the name of Winston, Morrison & Co. and of W. A. Gage, as defendants, to show cause why testimony should not be read in evidence on the day of trial, and service of it was accepted by counsel for the plaintiff. The judgment was rendered against the defendants.

It is stated, in opposition to the motion, that Gage acquired the property in dispute, pendente lite, and that he was not a necessary party to the action. C. C. 2453; 18 An. 280; 13 L. 260. We cannot look into the evidence to verify the statement,, while considering the motion; but, conceding itrio be correct, it is manifest that, as the title, which was made to him, was involved in the litigation, he had a serious interest in joining the defendants, his warrantors. Had they not consented to permit him to appear with them, and had not the plaintiff consented to recognize him as a co-defendant, Gage would have had the undoubted right to intervene, in order to resist plaintiffs’ demand, and thus he would have had a right to be heard and to have his claim and defense adjudicated upon. 16 An. 209. His answer cannot be deprived of its character, but, at worst, should be taken and dealt with as an intervention, tried and determined adversely to him.

It is true that, as a rule, an intervenor must be always ready to proceed, and cannot retard the progress of the suit, — still there are instances in which such party litigant is entitled to a continuance. 32 An. 765.. The requirement of readiness implies the fact of existence. It surely never entered into legislative contemplation, to require readiness for trial, on the part of a deceased intervenor. In such a case, his representatives should be made parties. C. P. 120; 5 N. S. 431; 3 L. 527; 18 L. 41; 9 An. 42; 8 An. 80; 10 An. 504. It is not even counter-alleged that they knew of his death and of the suit, and permitted the litigation to continue. Those whose interests may be affected by a judgment, may but cannot be compelled to intervene; 14 L. 274; 11 R. 326; but the moment they have entered appearance in that form, and their status has been acquiesced in, their right to stand in judgment can no longer be questioned, and they become parties. 2 L. 456.

It is true, that the judgment might, on affirmance, be binding on Winston, Morrison & Co., if the representative of Gage had not assailed it; but it is an indivisible entirety, by its very terms, having been rendered indiscriminately against “ the defendants.” 32 An. 697. The case could not, therefore, be proceeded with here, as regards Winston, Morrison & Co., and remanded, as concerns the succession of Gage, as they were treated by the plaintiff as necessary defendants.

The judgment could be pleaded, if definitive, as res judicata against ■Gage, or the representative of his estate, not because it was rendered against Winston, Morrison & Co. and assigns, becoming such pendente lite, for we cannot ascertain the fact announced by statement, but because it is rendered against all the defendants, Winston, Morrison & Co. and Gage, without severance and indiscriminately. On the other hand, had the judgment been rendered in favor of the defendants, either of them could successfully set it up, as res judicata, in bar to any new action on the part of plaintiff. The judgment having been rendered against an unrepresented dead man, is clearly a nullity. 8 An. 80; 22 An. 23.

It is, therefore, ordered, adjudged and decreed that the judgment .appealed from be annulled and set aside, and that the cause be remanded to the lower court for further proceedings, agreeably to the motion and according to law, at plaintiffs’ costs in both courts.

Mr. Justice Todd, having been of counsel, recuses himself.

Mr. Justice Fenner dissents from the opinion and decree.

Dissenting Opinion.

Fenner, J.

The motion by the administrator of W. A. Gage discloses, on its face, that Gage was dead at the time when the judgment was rendered and at the time when the appeal was taken in his individual name.

There is, therefore, no judgment against him and no appeal taken, by him.

On the motion of a party, against whom no judgment has been rendered, and who is not before us, as appellant or in any capacity, we have no authority, in my opinion, to annul a judgment having no force or effect except between other parties, properly before us as appellants and appellees, and none of whom have applied for any such relief.

Though, on other grounds, I think the relief asked should not be granted, the above alone is a sufficient ground for denying the motion.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 1000.
    The State of Louisiana vs. Hypolite Polite.
    This Court cannot review a verdict and judgment of tbo court below, on tbe ground that Appellant is charged in the indictment with having committed the ofience on the 19th of March, 1880, and the evidence shows that the offence was committed on the 19th of March, 1881. Were this Court to review such evidence to ascertain whether the averment in the indictment was or was not properly sustained by the proof, it would be trying the case on appeal as to the facts.

    APPEAL from the Fifth District Court, parish of Ouachita. Bichardson, J.

      F. G. Hudson, District Attorney, for the State, Appellee.

      J. H. Dingrave for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was convicted of murder, and sentenced to-imprisonment in the penitentiary during his natural life, in accordance with the verdict rendered. From this sentence he has appealed.

The sole ground relied on in this Court for a reversal of the sentence, is that contained in a motion in arrest of judgment filed in the court below, and which is substantially to the following effect:

“ That the indictment charged the offense to have been committed on the 19th of March, 1880, and the evidence showed that the offense was committed on the 19th of March, 1881.”

The evidence on which this conviction rests is not copied into the record; and if it had been, it would not be, under our limited jurisdiction, within our power to review it. The motion in arrest amounts simply to this: That it alleges that the averments in the indictment with reference to t'he offense charged were not sustained by the evidence.

It seems too plain for argument that, with a jurisdiction expressly limited to questions of law only, this Court, even were the evidence in the record, could not review such evidence to ascertain whether any averment in the indictment was or was not properly sustained by the proof; for that would be trying the case over again as to the facts by this Court; but, as the evidence on which the accused was convicted is not before us, it is utterly impossible, apart from our want of authority, to do so, to determine whether the proof was sufficient to warrant the conviction, or whether it corresponded with the averments of the indictment.

The counsel for the accused, however, contends that the evidence taken on the trial of the motion in arrest of judgment shows this alleged discrepancy between the averments of the indictment and the proof on the trial. Even if this were so, and for whatever purpose the evidence may have been offered, we cannot consider it, for that would be essentially reviewing the facts bearing on the guilt or innocence of the accused, which, by the terms of the Constitution, we are forbidden to do. In , fact, we have no hesitation in saying, after a close review of che proceedings found in the record, that the motion referred to should not have been entertained by the court a qua — at least not as a motion in arrest of judgment — for the reason that it lacked the essential element of such a motion, in not confining the alleged irregularity or illegality to matters patent on the face of the record, to which it is strictly limited by law. "We are, therefore, free to say, although it may not be necessary to the determination of this case, that all this inquiry outside of ' the record, and this introduction of parol evidence touching the issues raised by the motion, was irregular.

Leaving out of consideration, as we; must do, all this oral evidence admitted on the trial of the motion, and confining ourselves to the, record, it is a. matter of no moment whether the indictment charges the offense to have been committed- on the 19th of March, 1880, as from a casual inspection of the instrument it would appear to declare, or whether it originally charged that the offense was committed on the 19th of March, 1881, and the true date charged had been altered since the finding, as contended by the District Attorney. The indictment was brought into court on the 7th of April, 1881, the offense charged therein was murder, and it was • entirely immaterial, as related to the guilt of the accused or of the validity of a conviction under the indictment, at which of the two dates the crime was committed. The only possible significance it could have in any case, would be in so far as it might bear on the question of prescription. In this case, it could have no such bearing, inasmuch as murder is expressly excluded by the statute from the number or list of offenses required to be prosecuted within a stipulated or limited time. R. S. Sec. 986.

The judgment appealed from is affirmed.


author: Levy, J.

text:
    No. 999.
    Daniel Y. Grayson’s Executor vs. E. E. Norton, Assignee. Wm. Bonner, Intervenor.
    !Tn a suit to revivo a judgment against a bankrupt, Ms assignee is the proper person upon whom to serve the citation, if he is still in office, but not if he has been legally discharged by the Bankrupt Court, and is, consequently, functus oficio. In the latter case, the citation served upon the ex-assignee has no legal effect whatever.
    APPEAL from the Seventh District Court, parish of Franklin. Mam, J.

      Boatner & Liddell and Franklin Garrett for Plaintiff and Appellant:
    "First — The revival of a judgment simply averts prescription. It does not make valid that which is invalid. The Legislature having declared that a judgment could die, at the same time provided a means of extending its life. The revival' gives a new ten years lease of just the kind and quality of existence the judgment originally had.
    “Second — It is the duty of courts to give effect to laws and not seek to render them inoperative, Under our law every right has a remedy. In this matter plaintiff’s right is conceded, and the Court must give the remedial statute a reasonable construction ; its terms must not be scrutinized for the purpose of making it void and destroying plaintiff’s right.
    'Third — In a suit to revive a judgment, the dofondant in which has become a discharged bankrupt, his assignee alone can be cited, — even when the assignee has rendered a final account, — for he is the only possible legal representative of the defendant, who has become civilitcr mortuus. The bankrupt act does not provide for the appointment for any purpose of another assignee, after the final account, on whom process could be served, — differing in this from our own law in relation to administrators.
    Fourth — In this case the Supreme Court has held, in June, 1879, that the plaintiff had properly cited the assignee in order to revive the judgment.. The case was not remanded to try that issue, which was settled ¡ and the District Judge was without authority to overrule the Supreme Court and refuse to revive the judgment.
    Filth — In a suit to revive, the only permissible parties are the plaintiff and defendant in the original judgment, or their legal representatives.
    ■'Sixth — There can be no intervention except there be a suit, — a contestatio litis. There can be no suit except there be a plaintiff and a defendant.
    ^Seventh — An intervenor cannot substitute himself for the plaintiff or the defendant, nor can he be heard to plead exceptions personal to either. He takes the suit as he finds it.
    Eighth — Third parties cannot intervene in a suit to revive. The third possessor of property, on which rests the mortgage resulting from the registry of the judgment sought to be revived, is a third party.
    FTinth — The intervenor, Bonner, can only assert his rights in an hypothecary action instituted to render the judgment executory against the land he holds as third possessor.

      Wells & Filis for Intervenor and Appellee:
    Tn a suit to revive a judgment against a bankrupt, the discharged bankrupt is not the proper party to cite. Alter vs. Helson, 27 An. 242.
    In a suit to revive a judgment against a bankrupt the assignee is not the proper party to cite. Chapman, Ex., vs. S. O. Helson et al., 31 An. 341. In hypothecary proceedings against property which has passed out of the jurisdiction of the bankrupt court, it is useless to cite the assignee, because he has no interest therein. ‘Willard vs. Brigham, 25 An. 600.
    ■Our State courts recognize the official signatures of the officers of the Federal government without proof. G-reenleaf, vol. I, chap. 2, Art. 6 ¡ 4M. old series, 655; 10 M. old series, 196 j 4 M. FT. S. 263.
   The opinion of the Court was delivered by

Levy, J.

Franklin Garrett, dative testamentary executor of David Y. Grayson, deceased, instituted this suit on the 15th of August, 1876, to revive a judgment of the District Court of Jrankliñ Parish, rendered ■on the 6th of September, 1866, in favor of said Grayson vs. E. S. Sims. The suit was brought against E. E. Nprton, assignee in bankruptcy of ■•said Sims. Service was duly made on said Norton. William Bonner intervened, alleging that in May, 1870, he became the purchaser from E. E. Norton, assignee in bankruptcy, of all the real estate of E. S. Sims, which had been surrendered in bankruptcy by said Sims, said purchase 'being made under an order of sale bf the U. S. District Court of Louisi•ana. Intervenor avers that, although said “order .of court and sale decreed the divestiture of all mortgages and incumbrances on said •property, the plaintiff has brought suit against intervenor, claiming the right to enforce upon said lands the judicial mortgage alleged to have been acquired by the registry of the judgment in the suit of Grayson vs. E. S. Sims.” He alleges, among other things, that the said Norton has no interest in the present suit for revival, because, at the time of •filing the samó, he was not assignee of said bankrupt, having filed his final account and been discharged from said office. He also alleges that Norton was-not properly cited; that “the prescription of a judgment •can be interrupted, only, by a legal citation issued according to law to the defendant or his representative, which has not been done in this case.”

There was judgment of the District Court, reviving the judgment •as prayed for, and the intervenor appealed to the Supreme Court and the judgment of the lower court was reversed and the case remanded •for a new trial. On the second trial, there was judgment rejecting ■plaintiff’s demand .and sustaining the intervention,'and plaintiff has "taken this appeal.

In the opinion rendered by the Supreme Court, in the first appeal, "the Court said: “ In this case, it was brought against the assignee; and the vendee of land subject to the judicial mortgage resulting from the ¡recordation of the judgment sought to be revived, has therein intervened, and we have before us the parties who alone are interested in maintaining or defeating this action.” We shall, therefore, consider •alone the question of the revival of the judgment, having nothing to do with the conflicting interests of the plaintiff and intervenor as to the force and effect of the judicial mortgage.

The whole ease was reopened on the second trial and evidence introduced thereon, which was not taken on the first one. We find in the record evidence showing that E. E. Norton, assignee of the bankrupt E. 8. Sims, was discharged as such assignee by order of the TJ. S. District Court, sitting in bankruptcy, on the 20th of January, 1872. Service of the citation in this suit was made on him on the 15th of August, 1876, more-than four years after his discharge.

In the opinion of the Supreme Court, rendered on the rehearing granted in the previous appeal, the Court said: “We held that, in this, suit, the citation should have been issued to and served upon the judgment debtor or his legal representative, reversed the decree of revival and dismissed plaintiff’s demand. We are now told by his counsel, ‘in-instituting these proceedings we carefully followed, as the evidence-of what the law was, a rule established and twice sanctioned by your predecessors.’ This is true, and as members of the Bar, we understand the important necessity of not departing from a rule of practice, which,, however questionable it may be, has for several years been a guide to-litigants. 25 An. 556, 27 An. 242. Plaintiff is seeking, not to avoid the-effects of any obligation, not to destroy any right, but merely to protect-against an impending prescription, a right which, he alleges to have acquired; and to attain that lawful end, he has strictly complied with the-formality prescribed by our jurisprudence, and which, he justly contends, it is too late to alter or change. Whatever may be the views which we entertain as to this matter, plaintiff has properly invoked the rule stare decisis and, as in this instance, no interest can be affected by its application, we adhere to it.”

The decisions on which the Court relied, 25 An. 556, and 27 An. 242, do not, in our opinion, apply to this case. In those cases, it does- not appear, nor is it claimed, that the assignee had been discharged and was “functus officio,” and the facts disclosed by the record of the first-appeal herein, doubtless induced the belief in the mind of the Court, that Norton was, when cited, assignee. The proof of his discharge was not before the Court and, indeed, it was only made on the new trial, for which purpose the cause had been remanded.

The question, then, for our decision is: was the service on Norton, long after he had ceased to be assignee of the bankrupt, Sims, by discharge under an order of court regularly made, such legal citation-“to the defendant or his representative” as would maintain a judgment of revival? Without, in any manner, overruling the cases cited, we-only say, that they do not cover, nor are they applicable to, the instant cause.

Plaintiff, relying upon the decisions referred to as constituting a-rule of practice justifying him in applying thereto the doctrine stare decisis, can find no relief therefrom. They held that service of the citation on the assignee in bankruptcy was sufficient in a suit to revive a judgment against a bankrupt debtor, but they did not say that service upon one not an assignee at the time of service, or who had, although once an assignee, been judicially discharged, would suffice. In this -case, when the service was made upon Norton, he was in no manner the ■representative of the judgment debtor. He had long since, by solemn adjudication of the proper court, been divested of. all representative •character as it affected the bankrupt or his estate, and was to all intents and purposes a stranger, without capacity to do any thing which could bind the bankrupt or his property. A citation on him had no more binding effect than if made upon the veriest stranger.

We know of no law and no decision which would authorize an executor, administrator, curator or tutor, or other fiduciary, to exercise the functions of his office after he had been divested of his official character, which could bind the persons or property which he had represented prior to such divestiture of his office; and so also as to assignees in bankruptcy. The service of the citation on Norton, the discharged assignee, in this case is insufficient on which to base a judgment for the revival of the judgment sought by plaintiff.

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

Mr. Justice Todd recuses himself, having been consulted as counsel.


text:
    No. 1011.
    Diana C. Gray et al. vs. Alfred Waddell, Administrator.
    .A judgment on an Opposition to the Account of an Administrator may validly decree his destitution and that he should pay a certain sum of money for which he is liable to the estate, when a direct suit was first brought by the Opponent, praying for his dismissal for mal-administration, and the direct suit and the Opposition were cumulated and tried together.
    APPEAL from the Fourth District Court, parish of Winn. J. Bridger,

      B. J. Bowman for Plaintiffs and Appellees:
    A-n action to compel an Administrator to account and to destitute may he cumulated. 14 An. 779; 4 An. 486.
    A-n Administrator must account for the inventory, 7 R. 138, a fortiori he must account for the property which he informs the Court he has sold and of whose sale he has made no account.
    ' There is not only no evidence in support of the charges made by the Administrator, but not even a voucher filed in support of them.
    .An Administrator who fails to render an account once in twelve months shall he dismissed from office, and pay 10 per cent per annum from the date of the expiration of the twelve months. R- S. s. q. Act 1837, Ro. 102; 9 An. 376 ; 12 An. 445; 13 An. 584; a fortiori, an Administrator who fails for more than eight years to file an account, and who,' during that time, has sold the property at private sale and converted it to his own use, and fiually renders an account only at the suit of the heirs and under the imperative order of the Court, ought to he dismissed and pay 10 per cent per annum interest from twelve months after his appointment.

      Jack & Buckner for Defendant and Appellant:
    An Administrator can not “be destituted of his trust on an opposition to Ms Tableau, especially when his destitution is not prayed for, and when the only reasons assigned for the judgment are, that he bad not filed his account. C. P. Arts. 10J7 and 1018; 31 An. 728; 28* An. 323, G07; 29 An. 521 ; 30 An. 269.
    A judgment assigning aud showing no other or better reasons than “the law and the evidence being in favor of the judgment herein rendered, it is therefore ordered and decreed, &c., does not conform with the requirements of fundamental law, and is, therefore, null, and void. 11 An. 94 ; 18 An. 260; 19 An. 525 ; 20 An. 27.
    The judgment should conform with the pleadings aud the relief should not be ultra petitioner^.. 16 An. 266; 21 An. 379; 22 An. 378 ; 24 An. 349; 25 An. 281 and 28 An. 843.
   The opinion of the Court was delivered by

Todd, J.

This case was submitted on briefs at the recent term of this Court at Monroe, by consent of counsel, to be decided at Opelousas.

. The facts connected with the case are briefly as follows :

John Waddell died in the parish of Winn, in the year 1863, leavmg a. widow and two minor daughters, now Mrs. Gray and Mrs. Brantley, the-plaintiffs in this case. The widow was confirmed as testamentary executrix of the deceased,'and tutrix of the minors. She died in 1869, and John E. Gray was appointed administrator of the said succession of John Waddell,, but afterwards resigned, and the defendant, Alfred Waldell, was appointed administrator of the said succession in the year 1871. He caused an inventory to be made of the property, which consisted of lands in the parishes of Winn, Grant and Natchitoches, the aggregate amounting iff value to $10,861 50. He obtained orders for sale of the property, but there-is no evidence of any returns of the sales having been filed. No account, appears to have been rendered by this administrator after his appointment, to the date of this suit against him, which was instituted in November, 1879. The suit was brought by the plaintiffs mentioned, sole-heirs of John Waddell, deceased ; and the object of it was to compel the-rendition of an account, and procure the destitution of the administrator.

The grounds upon which his destitution was claimed was the failure- and neglect of the administrator to render his accounts, and for maladministration. On the same day that the petition was filed, — the 15th November, 1879, — the defendant was ordered to render an account of' his administration.

Personal service was made on him on the 21th of same month and year.

On the 16th of February, 1880, the plaintiffs, suggesting the failure - of the defendant to render his account, in obedience to the order of the court, the.court made another order, requiring the defendant to file his. account within ten days from that date.

On the 17th of the same month, a default was taken against the defendant on the demand for his destitution.

On the 24th of same month, the administrator rendered his account,, which was opposed by the plaintiffs. This opposition seems to have been consolidated with the action to destitute, and came up for trial at-the June term, 1880, of the court, but, by agreement of counsel, was continued, and fixed for trial at the following September term. It was-tried at that term, the defendant appearing at the trial neither personally nor by counsel. From the judgment rendered against him, destituting him of the administratorship and condemning him to pay $10,307,. with interest, he, the defendant, has appealed. There- is a motion to dismiss the appeal, on several grounds, such as defect in the certificate-of the clerk, error as regards the return day in the order of appeal,, and that the transcript was filed too late, — all of which we find untenable ; and the motion is overruled'.

On the Merits.

The defendant has filed no assignment of errors to inform us specifically of his grounds of complaint against the judgment, which should have been done, but, in their brief, the counsel point out the alleged* errors in the proceedings, on which they rely for a reversal of the judgment, which we shall proceed to notice :

1. The first objection to-the proceedings urged is, that the judgment was rendered on the opposition to the account of the administrator,, and that there was no prayer in the opposition for his destitution, nor for judgment against him for any specific amount; and that the judgment was, therefore, ultra pelitionem.

It is true that there was no prayer for the destitution of the administrator in the opposition to the account; but, in the petition for the-rendition of the account, maladministration on the part of the defendant was distinctly charged, and his destitution prayed for. The defendant, was personally cited on this demand, and a default regularly taken and confirmed on proof found in the record. The fact that this demand wascumulated with the opposition to the account, does not impair the face of the judgment on this point. The original petition filed, contained the demand for the rendition of an account, and for the removal of the-administrator. The account was rendered, and may be viewed as an-answer to that part of the petition, and an issue, as to the demand for-destitution, was created by the default taken on that demand ; and the-issues thus presented, — in'the absence of any objection from the defendant, — were not improperly tried together. 4 An., 486. All the items off the account, save one, were opposed, and judgment was asked for sustaining the opposition and awarding such sum as might be found due-after such correction of the account. Such a prayer fully justified the moneyed portion of the decree.

2. It is urged that the judgment was not only ultra petitionem, but self-contradictory.” That the defendant rendered an account in obedience to the order of the court, but was removed “ because he had not filed it.” The petition charged that the administrator had never rendered an account during the entire term of his office, which had lasted up to the time of the suit — nearly nine years. The demand and the judgment removing him, were based upon this delinquency, and not for any failure or neglect respecting the account filed. The charge against the judgment of irregularity on this ground is, therefore, utterly unfounded.

3. It is charged that the judgment was rendered without citation.

We have shown that the defendant was personally cited, and default taken on the demand for removal, the account filed and opposed. There was no necessity or authority for citing the defendant to answer the opposition. The opposition itself was an answer to the account filed. This objection to the proceedings is entirely without merit.

4. It is contended that a judgment of removal, upon failure to file an account, is not authorized, unless there is first an order to render the account and refusal to obey such order, — and reference is made to Sec. 3696, Revised Statutes, as sustaining this proposition. And it is argued ■that, inasmuch as the administrator in this instance did render his account, when ordered to do so, the judgment was without law or reason to support it.

The section of the Revised Statutes referred to, as supporting this view, contains merely the provision that a creditor of a succession may take a rule on an executor or administrator to show whether he has any funds in hand for the payment of the debts ; and, on his failure to file the proper statement in ten days, he may be dismissed.

The section which follows the one referred to (3697), however, requires that such fiduciaries “ shall, at least once in every twelve months, render an account of their administration ; and, on failure so to do, shall be dismissed from office,” &c.

And the terms of this requirement are mandatory, and show that the duty is to be performed under the penalty prescribed, without an order to compel the discharge of such duty. The suit was evidently brought under the provisions of this act.

5. Finally, it is contended that the judgment in question is a nullity because it does not contain the reasons for the judgment. The judgment reads:

“ This case coming on for trial, and it appearing to the court, from the judicial representation of the administrator, that he had disposed of all the lands of the succession except two small tracts in the parish of Grant and about 200 acres in the parish of Winn, and no returns of any sales of said land ever having been made, and the administrator not having filed any vouchers with his accounts to sustain the charges-therein made, or even claiming that they were all paid, and the law and the evidence being in favor of the judgment herein rendered,” &c. Then follows the decree condemning the administrator to pay the amount previously mentioned, which is a balance after allowing certain credits, including the unsold land.

Then, resuming, the judgment further declares :

“ And it further appearing to the court that the said administrator has failed to file an account of his administration for neaily nine years, or make and record, returns of his said transactions in disposing of the property of the succession, that he be destituted as administrator,” &c.

We think that the judgment, in its language and terms, shows a sufficient compliance with the law. The reasons for the judgment were clearly expressed, and were of a character to justify the decree. The objection made to the expression “ the law and the evidence being in favor of the judgment herein rendered ” appearing therein, seem somewhat hypercritical, considering that the language of the entire judgment leaves no doubt that it was rendered in favor of the plaintiffs and against the defendants upon the issues raised in the pleadings.

We would add that we have carefully examined the record, and are satisfied that the facts and reasons assigned by the judge a quo for his judgment are fully established by the evidence.

The administrator never filed an account during the period mentioned, sold the property of the succession without an order of court, so far as the record discloses, and made no returns of the sales, filed no vouchers with his account, rendered finally, under the order of the court, and after two applications therefor; and, in addition to all this, the account, upon its face, abounds with extravagant charges, which, even if supported by vouchers, would not easily commend them to the favorable-consideration of a court of justice.

The moneyed judgment rendered against the administrator, is for the inventoried value of the property shown to have gone into his hands, and less that undisposed of; and in the entire failure to show any disbursement whatever of the funds derived from its sale, the judgment, in this-respect, was a proper one.

W.e have thus gone over, successively, all the objections urged' against the judgment complained of, and our scrutiny of the proceedings has been the more severe and exhaustive on account of the-fact, so earnestly pressed on our attention, that the defendant was not present or represented at the trial, and whilst disposed to extend all the-indulgence to the appellant within the limits o£ our discretion, we find that his appeal presents no ground upon which we can afford him relief.

There is a motion to amend the judgment which we must refuse, for two reasons: 1st, that the additional amount asked for was not demanded in the petition, and 2nd, the appellees’ motion to dismiss the ■ appeal is inconsistent with the demand for an amendment of the judgment.

The judgment appealed from is affirmed, with costs.

Mr. Justice Levy recuses himself in this case, having been of counsel.


author: Fenner, J. Todd, J.

text:
    No. 611.
    John W. Willis, Jr., vs. Lem Scott, Sheriff, et al.
    When immovable property bag been sold by authentic act, valid on its face and accompanied by actual delivery and continuous possession and control by tbe vendee as owner, a creditor of tbe vendor cannot seize tbe property in disregard of tbe transfer ; and, when enjoined by tbe vendee, sucb seizing creditor will not be allowed to allege and prove that • tbe sale is a fraudulent simulation. Review of tbe whole jurisprudence of Louisiana on this subject.
    Tbe title of tbe vendee, under sucb circumstances, can only be attacked in a direct action in avoidance of tbe sale, whether revocatory or en declaration de simulation.

    And, in sucb direct action, whether revocatory or en declaration de simulation, tbe plaintiff must aver and prove that tbe act sought to be avoided, operates injuriously to him.
    APPEAL from the Fifth District Court, parish of Richland. Richardson, J.

      Cobb & Ounby for Plaintiff and Appellee:
    Hirst — A man may dispose of his property as be sees fit, provided nobody is injured thereby.
    Second — When a creditor seizes property in tbe possession of tbe vendee of bis debtor and sets up that tbe sale was a simulation, it is incumbent on him to show that bis debtor has not in bis own name and possession sufficient property to discharge tbe debt.
    Third — He who alleges fraud or simulation assumes tbe onus of proving it.
    Rourtk — Where a vendee is in possession of property under a recorded title translative of property, it caDnot be seized as tbe property of bis vendor.
    Hlftk — Where a creditor has enough property under seizure to pay bis debt in tbe parish where tbe debtor lives and where tbe judgment was rendered and voluntarily releases that property and procures a pluries fi. fa. and has it sent to another parish and seizes under it property sold by tbe debtor to a third person who owns and ppssesses it, exemplary as well as special damages should be awarded against tbe seizing creditor.

      Boatner & Liddell for Defendants and Appellants:
    Hirst — When a sale of property under execution is enjoined by a third person, claiming to be owner of tbe property seized, be occupies tbe position of a plaintiff in a petitory action and must establish bis title ; C. R. 396; 1 R. 42 ; 8 HT. S. 662; 15 An. 136 ; 7 An. 89, 587. • And in sucb case be cannot contest tbe Tights of tbe seizing creditor, under bis judgment but is confined to proof of his ownership. 7 An. 89; 31 An. 653.

      ••Second — The writ of fi. fa. is exigible against all property of the debtor not exempt by law from seizure. E. O. C. 3183; O. P. 642, 643.
    ‘Third — The right to point out property for seizure under the writ is personal to the debtor. 12 M. 250. Henee, no third person can complain that the sheriff has seized that pointed out by the plaintiff in the writ.
    Fourth — The law accords a right of action only to those who have a real and actual interest wbioh they assert or defend. C. P. 15. Therefore a petitory action based upon a title shown to be simulated, must fall for want of an actual interest in the party asserting it; such a title may be disregarded by the seizing creditor, and will not be noticed by the court. 1 An. 364; 2 An. 325.
    Fifth — The simulated title vests no rights, and creates no obligations. 24 An. 276; 1 An. 132, 262, 364; 5 An. 1, 668, 702; 6 An. 710 ; 10 An. 570.
    Sixth — As truth alone should nave place in a court of justice, no effect will be given to the simulated title, unless the interest of jastice absolutely require it. 7 An. 89. Simulations are not governed by the rules and articles of the Code which apply to real though fraudulent contracts. The former may be disregarded, the latter must be avoided by the revocatory action.
    •Seventh — The allegation of the insolvency of the vendor is sacramental in the revocatory action — not so, when a simulated title is opposed to a creditor seeking to enforce his judgment by seizure of his debtor’s property.
    Eighth — The right of pleading discussion is only accorded to a security, or to a defendant in a hypothecary action, who can only exercise the right by pointing out other property sufficient to pay the debt, and advancing the necessary funds to subject it to sale. C. C.
    Pfinth — To permit the holder of a simulated title to prevent the sale of property cohered by it, on showing that the debtor is possessed of other property, would be to put him in a better position than one authorized by law, to plead the benefit of discussion.
    Tenth — When the subject-matter of a negative averment is peculiarly within the knowledge •of the party holding the affirmative of the issue, the averment will be taken as true, unless disproved by that party. 1 G-reenleaf, Seo. 78; 8 A. S. 462; 15 L. 45; 49 An. 295,136.
    Eleventh — The allegations of simulation and collusion involving anegative imposes the onus prdbandi upon the party holding the affirmative. Same authority.
    Twelfth — If any proof at all be required to support the pleas, prima facie is sufficient. 4 An. 295.
    Thirteenth — When a long series of simulated transactions are shown between father and son, the latter without means, sales of property to the son for a price which he has no means to pay, will be presumed simulated.
    Fourteenth — When a fraudulent debtor has made sales of all bis property, which has a market value, such sales will be injurious to creditors, though such debtor may have other property.
    Fifteenth — The meaning of the word “value,” as applied to property, is what it will sell for, and not the speculative opinions of witnesses as to what it is worth. 31 An. 202.
    •Sixteenth — Where a third opponent cumulates with his injunction an action of damages for malicious seizure and trespass, defendant may show the simulation of his title (if for no other purpose) do defeat his claim for damages. Willis vs. Ward, 30 An. 1285; 31 An. 369; 32 An. 396.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff enjoins the seizure, under ft. fa. issued against his father, J. W. Willis, Sr., of immovable property which he claims as belonging to himself.

The seizing creditor defends by charging that the title of the plaintiff is a fraudulent simulation, and that the property really belongs to his judgment debtor.

The'plaintiff, in support of the allegations of his petition, exhibits a conveyance by authentic act of sale from the judgment debtor, antedating the execution enjoined by a considerable period, for a price, adequate in amount, represented by his negotiable note secured by mortgage and vendor’s lien, actually executed and delivered to the vendor, and still outstanding and unmatured at the date of this suit. The evidence is uncontradicted that the sale was accompanied by actual delivery of the property to the plaintiff, as vendee, who lias possessed, controlled and administered it, as owner, ever since.

He further proves, by satisfactory testimony, that his vendor, the judgment debtor, is possessed of ample property to satisfy the defendants judgment, and that if, after discussion thereof, defendant’s judgment remains in any part unsatisfied, the said judgment, by virtue of record prior to the sale to plaintiff, is secured by the first judicial mortgage on the very property seized, which may be enforced by the hypothecary action.

Defendant’s evidence tends to contradict the sufficiency of his debtor’s property for the satisfaction of his judgment, and to establish the simulation of plaintiff’s title; but does not attack the apparent validity of the title, nor the delivery and continuous possession of plaintiff.

The plaintiff relies, for the affirmance of the judgment perpetuating his injunction, on the following propositions, viz.:

1st. That, having exhibited his title to the immovable seized, by authentic act of sale, executed by the delivery of his negotiable obligation for the price in accordance with its term.s, and also by the actual delivery of the property, and having established his continuous possession, administration and control, as owner — such title and possession are, in law, so presumably real, that they cannot be disregarded by ai seizure, but can only be attacked in a direct action.

2d. That a creditor has no right to attack, directly or indirectly,, either fraudulent or simulated conveyances of his debtor, without alleging and proving that they operate injuriously to him — which, he contends, is neither alleged nor proved in this case.

3d. That the evidence does not establish the simulation of plaintiff’s title.

It is difficult to reconcile all the decisions on this subject, but it cannot be denied that the weight of authority maintains the correctness of the first proposition above stated. In Barbarin vs. Saucier, 5 N. S. 361, a third person enjoined the seizure of a slave claimed by Mm as Ms property under a sale from the judgment debtor. The defense was. precisely similar to that interposed here, viz.: that the sale was collusive and simulated and designed to defraud creditors. The Court said: " The sale, whether fraudulent or not, vested the legal title to the slave in the plaintiff, and until set aside by the action which the law gives to creditors for that purpose, the sheriff has no right to seize it as the property of the vendor.”

Although the Court uses the word “fraudulent,” the statement of the issue shows that it means “ fraudulent simulation.”

In Peet vs. Morgan, 6 N. S., on precisely the same issue of fraudulent simulation, the Court reiterated the doctrine and gave the following reasons : “ The principle on which it rests is, that men are presumed to act honestly, until the contrary is proved ; that the conveyances alleged to be'fraudulent are, prima facie, correct and fair, and that it is improper, in opposition to these presumptions, the creditor should exercise rights that could only properly belong to him, in case the acts of his debtor were null and of no effect. In many instances, should a contrary doctrine prevail, sales, which were alleged fraudulent (simulations), might turn out to be bona fide (and real) and the purchaser be deprived of the use of property which was honestly his. In the uncertainty which must prevail until the matter undergoes a judicial investigation, it is certainly the wisest course, and the one most conducive to general utility, to consider the thing sold as belonging to him in whom the title is vested.”

In both the above cases, we assume, as was no doubt the fact, that the claimant had possession as well as title.

In the following cases, it has been distinctly decided that, where the third person enjoining held under a conveyance, valid on its face, accompanied by delivery and continuous possession, as owner, to the date of seizure, and where the defense was, as in this case, fraudulent simulation, a seizure, in disregard of such title and possession, could not be sustained, but the creditor must resort to a direct action, revocatory, or en declaration de simulation. Peet vs. Morgan, 6 N. S. 140, 580; Yocum vs. Bullitt, id. 324; Trahan vs. McManus, 2 La. 214; Weeks vs. Flowers, 9 La. 385; Morton vs. Crosby, 14 La. 426; Presas vs. Lanata, 11 R. 288; Kirkland vs. Gas Co., 1 An. 300; Collins vs. Shaffer, 20 An. 41; McAdam vs. Soria, 31 An. 864; Payne vs. Graham, 23 An. 773. See, also, 17 La. 555; 1 Rob. 435; 2 R. 389; 7 R. 234; 12 R. 95.

Some question has been made as to the application of this doctrine, in its full extent, to movable-property, but its application even to such property has been sustained in several cases, and notably in McAdam vs. Soria, 31 An. 864. On this question, however, we express no present opinion. As applied to immovable property, the doctrine has never been directly questioned.

We have not failed to observe that, in most of the cases quoted, the language of the Court refers to acts of fraud; but, in all of them, the issue is distinctly stated to be fraudulent simulation, and we are compelled to assume that the fraud referred to, is fraudulent simulation. The defendant opposes to this doctrine the well-established principle that, in cases of simulation, the creditor may seize, notwithstanding the apparent transfer, and if enjoined, may plead and show the simulation on trial of the injunction.

We have examined the authorities referred to, by defendants’ counsel, in which this doctrine was announced, viz.: 5 An. 1, 668, 702 ; 6 An. 710; 10 An. 570, and in all of them it appears that claimant had never had possession. The same feature appears in 1 Rob. 31; 7 An. 89; 15 An. 5, 53, 177; 19 An. 153; 29 An. 4; 2 An. 323, 912; 6 An. 716; 12 An. 173, and many other cases holding this doctrine. We find no case distinctly holding that immovable property held under a title, translative of property, valid on its face, and accompanied by actual delivery and continuous possession and control as owner, could be directly seized by a creditor of the transferrer.

To reconcile the two lines of authority, it is necessary to regard the case last stated as an exception to the general rule, that simulated titles-may be disregarded and direct seizures made at the suit of creditors of an alleged real owner. The defendant also refers to several authorities holding that, when a sale of property under execution is enjoined by a third person, claiming to be owner, he occupies the position of a plaintiff in a petitory action and must establish his title. In 1st Rob. 41, and 7 An. 89, the only ones direetly in point, the claimant had never had possession. In 8 N. S. 662 and 15 An. 136, it was merely held that seizure-could not be released without proof of claimant’s title and possession. It was neither held nor suggested that, after plaintiff had proved authentic title and possession, the creditor could, under his seizure, attack' them as fraudulent simulations without overcoming, by contrary proof, the prima facie sufficiency of the title, or the fact of possession. We are far from desiring to extend, in any manner, the opportunities of debtors to embarrass and delay the pursuit of creditors, by fraudulent manipulations of titles to property. But authentic titles to real estate,, valid on their face, published to the world by proper record, accompanied by delivery and continuous control as owner, afford such potent presumptions of ownership, that to permit the holder’s possession to be-divested by seizure under an execution against another, in advance of any proof of merely alleged fraud and simulation, would open the door to gross abuses, and would be a reversal of the ordinary course of remedial justice. The only foundation of the creditor’s right would be in the proof of his allegations. Ordinarily, the establishment of the right must precede the exercise of the remedy. The exceptions presented in the cases of the conservatory writs, are limited and strictly construed, and are guarded by bonds for damages. It is better that the creditor should suffer the delay incident to the establishment of his right by direct action, than that presumptive, and possibly real, owners should be stripped of possession, under proceedings to which they are not parties, and upon allegations which they dispute, and which have not been proved.

In the case of immovable property (to which, be it understood, this opinion is confined), the remedy of the creditor by direct action is perfect and complete. The meVe institution of the suit fastens the property in its existing condition, and prevents its alienation or incumbrance, to the prejudice of his claim. He can suffer no harm, except the delay, and, if successful, must find the property, at the end of his suit, open to the execution of his established right. Surely, it is better that he should submit to the delay incident to the judicial enforcement of all litigated rights, however clear, than that third persons should be subjected to the risk of such invasions of their most sacred rights of property.

In most of the cases, in which a contrary doctrine has been indicated, it will be found that there was either entire absence, or interruption, or some infirmity or ambiguity of the possession established, which tended to rebut the presumption of ownership, and to create an indicium of simulation. Where the title, possession and control of the claimant have all been perfect and complete, on their face, it has never been held, in any well-considered ease, that the transaction could be treated as such a pure simulation as to maintain a direct seizure.

Particularly should this doctrine be enforced in a case, like the present, where the consideration stated in the act is evidenced by a negotiable promissory note, actually executed and delivered, and outstanding, unmatured, at the date of seizure. Whatever be the understandings between the parties, the vendor could not claim the restitution of the title without surrendering the note. To maintain the seizure and sale of the property, while leaving the note, unmatured and capable of transfer free from all equities, in the hands of the vendor, would expose the claimant to grave danger.

Nor can we maintain the doctrine that a creditor can, directly or indirectly, attack the authentic title and possession of a third person, upon the ground of either fraud or simulation, without alleging and proving that they operate injuriously to him.

It is admitted that such allegation and proof would be necessary in a direct action en declaration de simulation; and we can conceive of no reason or principle upon which the creditor may escape this necessity by beginning with a direct seizure. The cases cited (1 R. 41; 15 An. 136; 8 N. S. 662; 1 An. 364; 7 An. 89; 2 An. 325), are either cases in which the claimant had not possession, or only hold that the enjoining claimant must administer proof of his pretensions. But when he alleges •and proves title, valid on its face, and possession, such title and possession cannot be assailed, in any form, by a creditor, without proving injury and interest. In the instant case, it is manifest the creditor is not injured, because not only has his debtor sufficient property to satisfy the debt, but the very property seized was sold to the plaintiff subject to his judicial mortgage, and may be subjected to the payment of his judgment, irrespective of whether the plaintiff’s title be real or simulated.

The foregoing grounds are sufficient for the decision of this case, and we shall, therefore, express no opinion on the question of simulation vel non, which the defendant may raise by direct action and on proper allegations, if he think the evidence in this case could sustain him.

Whenever questions, of this kind are properly presented, we shall probe the good faith and reality of transactions with merciless penetration. We think the District Judge has done justice, and reject the prayer.for increase of damages.

The judgment appealed from is affirmed at appellants’ cost.

On Rehearing

The opinion of the Court was delivered by

Todd, J.

The rehearing was granted in this case solely with respect to the damages allowed in our decree.

It must be admitted that the decisions upon the question whether a 'third person, opposing the sale of his property, seized for the debt of another, and enjoining such sale, is entitled to claim damages in the same suit, for attorney’s fees incurred in the prosecution of the suit, are •somewhat conflicting. But, inasmuch as we have no doubt that such claim might constitute, in some cases, an element of damage to be prosecuted by a separate action, and, moreover, as, in this case, the claim does not seem to have been contested in the lower court, and evidence was admitted, without objection, to support it, thus showing a tacit acquiescence in the right of the plaintiff to prefer such claim in the present action, we are not prepared to say that the allowance of such claim by the lower court, under these circumstances, was wrong; and, without committing ourselves to any decision on this point, we do not feel authorized to disturb our decree affirming the decision of the lower court in this respect.


author: Bermudez, C. J.

text:
    No. 996.
    M. Levy vs. Mrs. V. A. Ward, Administratrix. Mrs. A. R. Hope, Tutrix, Intervenor.
    'Oral evidence is admissible to show and correct an error in the description of real estate, contained in the act of sale of the property.
    ' The fact that the vendee afterwards claimed the property, under the erroneous description, from the vendor’s estate, does not estop him from proving such errór by verbal evidence.
    APPEAL fi;om the Sixth Judicial District Court, parish of Morehouse. Vaughan, judge ad hoc.

      Todd & Todd and Newton & Hall for Plaintiff and Appellee :
    Eirst — Parol evidence is admissible for the purpose of correcting ah error or mistake in a written deed to land.
    Second — Parol evidence is admissible to show that such deed is not the repository of the intentions of the contracting parties.

      Bussey & Naff for Defendant and Appellant:
    The sale of a thing belonging to another, is null and conveys no title. C. C. 2452¿ 27 An. 492.
    Parol evidence is inadmissible to prove a sale of, or title to, an immovable. C. C. 2275, 22?6, 2444; 3 La. 460; 12 M 651; 10 B. 467; 9 B. 414; 12 An. 213 and 261 ; 17 An. 140; 30 An. 898; 32 An. 635. " ,
    Article 2275 of the Civil Code declares that titles to immovables must be in writing; and testimonial proof is inadmissible to establish such sale or title, except that the confession of the vendor or vendee shall be binding on Mm when made on oath in answer to interrogations propounded for that purpose. And this is the only exception to the rule excluding all parol evidence. 4 La. 169, 377; 2 La. 595; 12 An. 114; 17 An 1; 28 An. 806; 30 An. 898.
    If a deed is shown to be null, parol evidence is inadmissible to give it validity. 5 La. 457.
    A party to a suit is estopped from disputing or gainsaying a fact which he has solemnly admitted in a judicial proceeding, and more assuredly is he estopped, if the admission be made under oath. G-reenleaf § 22, 27 ; 2 An. 269 ; 4 An. 417; 5 An. 22; 6 An. 722 ; 11 An. 710; 23 An. 765; Bigelow on Estoppel 45, 157.
    ' Where it is sought to correct, alter or change a written deed to land, the plaintiff must he required to make his case certain, by the best proof possible, 15 La. 311; and when that proof is the plaintiff’s own testimony, contradicted by other evidence in the record, it will not be sufficient to make out his case.
    'If the evidence shows that it was impossible for the testimony of plaintiff, with reference to a material point at issue, to be true, Ms whole testimony will be disregarded.
    -An act not recorded cannot affect the rights of third parties. 30 An. 10; 29 An. 315; 21 An. 427 ; 22 An. 113; 25 An. 290; C. C. 2264 et seq.
   The'opinion of the Court was delivered by

Bermudez, C. J.

The object of this suit is to cause to be judicially ■corrected an error alleged to have been committed in the description of certain real estate, which the plaintiff claims to have acquired, in 1873, from Gr. C. Ward, since deceased.

The complaint is, that the land was, by inadvertence or mistake, described as being in section 20, instead of section 21, of township 22, in Morehouse parish, in this State,

As administratrix, representing the succession of G. O. Ward, the defendant, pleaded the general issue, denying specially that Ward ever was divested of title to the land claimed as having been sold.

The tutrix administering the succession of E. J. Hope intervened, claiming to be a creditor of Ward for a sum liquidated by judgment and secured by judicial mortgage on the real estate alleged to have been sold.

From a judgment making the correction asked, and dismissing the claim of the succession of Hope, both the, defendant and the intervenor have appealed.

On the trial, the plaintiff introduced in evidence his title from Ward, and two acts of lease made by him to the latter. In the first act, dated February 26th, 1876, the property is stated to be known as the “ Willy Ward Plantation,” and to be leased at four dollars per acre, there being about ninety acres susceptible of cultivation. In the second act, dated April 19th, 1877, the plantation leased is mentioned as being the “Ward Place,” the same which’ Levy purchased from Ward on November 15th, 1873.

The next offered oral testimony to prove the error alleged to exist in the description of the property mentioned in his title from Ward, viz: that the number of the section, stated as 20, should have been 21, of township 22.

To the admission of this testimony the defendant objected, on-several grounds, and, to an adverse ruling, he reserved a bill.

We think the cou-rt ruled correctly, under the circumstances.

It is clear that, had the title contained no specific description of the real estate, but merely the name by which the property sold was known, oral testimony would have been admissible, to show the location and measurement of the land.

The title and the leases, taken together, as the acts of the parties, Levy and Ward, show, first, the specific description, and next, the name by which the property was commonly known. The land sold by Ward to Levy, on November 15th, 1873, was fully identified by Ward, in the leases, as the “Willy Ward Plantation,” or the “Ward Place.” The name of the land, the provenance of which is expressly stated, was, therefore, by Ward himself, legally interpolated into the deed, which he had previously made to Levy, at the date mentioned. So that the description of the property sold, was, as between Levy and Ward, in 1876 and 1877, amplified by the incorporation into the act of the two similar names by which the land went and was known. The irresistible conclusion is, therefore, that the real estate mentioned in the deed of sale is the “Willy Ward Plantation,” or the “ Ward Plaoe,” which means one and the same land, such as the same then stood.

In presence of the error charged in the description, the insertion of the name of the property in the sale laid a foundation and opened a door for,the reception of oral testimony, explanatory and descriptive of what the land thus named was composed of at the time of purchase; in other words, it justified the admission of parol proof to show its location, measurement and condition. It is well settled that parol evidence is admissible to show error in the descriptio loci et descriptio persones, in the date contained in an act concerning real estate, namely, to show that the instrument was not made the actual depositary of the intention of the parties. If such was not the rule of law, no erroneous description of real estate acquired or sold could ever be established and rectified, as against an author or purchaser in bad faith, or against his representatives, in the event of his death. 12 M. 400; 15 L. 311; 9 L. 566; 4 L. 352; 1 R. 257; 7 R. 548; 12 R. 371; 9 An. 29; 3 An. 193; 12 An. 142; 13 An. 25, 318, 410; 14 An. 199, 209; 18 An. 577; 26 An. 257, 545; 3 Greenleaf, Sec. 360 et seq.; 4 Starkie Ev. 10 and 18.

The authorities relied upon by the defendant’s learned counsel, for the exclusion of the oral testimony offered, apply to cases in which, in. the absence of all muniment of title, parties seek to recover real estate; but they have no bearing to eases in which parties endeavor to show error when deeds have actually been executed.

The reception of parol testimony to establish a clerical error, almost patent in the description of land contained in the deed, as also to explain lurking ambiguities, to identify the property, to prove fraud practiced in the transfer of land, to show possession, to show boundaries, is no infringement of the rule which demands that title to real estate be evidenced in writing only. 9 M. 40; 11 M. 449; 12 M. 649, 670; 4 N. S. 190; 5 N. S. 297; 8 N. S. 161, 660; 10 L. 209; 17 L. 421; 19 L. 258; 2 R. 72, 85; 3 An. 193; 4 An. 441; 5 An. 231, 410; 13 An. 25; 15 An. 483; 21 An. 548, 470; 26 An. 257; 16 An. 307; 20 An. 211; 2 An. 909; 4 L. 351; and authorities above referred to.

The other objections raised to the reception of the oral testimony, because the title from Ward is a.n absolute nullity, as it purports to transfer property belonging to another; because the oral testimony offered is not the oath of the seller; because the plaintiff is estopped, having in a former suit claimed, under oath, and recovered title to the land, described as being in section 20, we do not consider well founded.

The title is not an absolute nullity. It is no nullity at all. It is a-valid instrument, irregularly drawn up, but which can be rectified, so as to be perfected, so as to accord with the original intention of the parties-

A party seeking to establish an error in the description of real ■estate sold to him, is not restricted to the formality of probing the conscience of his adversary. He may, at his option, altogether dispense from such resort, and have recourse to such legal evidence as will prove the error. It is the party to whom no title whatever has been made, 'but who was placed in possession by the vendor, under a verbal sale of 'real estate, who cannot recover title, unless upon complying with the law requiring the propounding of interrogatories to the vendor. C. C. 2275; 12 An. 213; 28 An. 806; 30 An. 898; 17 An. 1; 4 L. 377, 167; 2 L. 595; 12 An. 114.

From the fact that the plaintiff has, in a different action against the •succession of Ward, 32 An. 784, claimed under oath and recorded title •to the land, as situate in section 20, it does not follow that he is estopped, under a charge of error, from alleging and proving that the land lies in •section 21. When he swore, and claimed, as he did, he was under the honest impression that he was giving a correct description of the property which he was revendicating. The error thus committed is likewise •susceptible of revision and correction. The rectification of the description of the land in the suit will necessarily follow that in the deed. The •doctrine of estoppel cannot be extended to a case of that description, .particularly in a suit brought to correct the fundamental error and ■which arises between the original parties, and specially when the plea is •urged by the representatives of the party against whom error is charged, •and who is represented by them as having fraudulently caused the error. The testimony can be adduced, whether such party be living or •dead, provided he be legally represented in the litigation, personally, or ■by an agent, an executor, an administrator, a syndic, or assignee, or by .heirs.

We will now proceed to inquire into the sufficiency and effect of both the oral and written evidence introduced to show the error complained of, and to describe correctly the property in question.

We think that it establishes the following facts:

Willy Ward once owned a tract of land in the parish of Morehouse, .known as the “ Willy Ward Plantation ” or “ Ward Place,” which was community property between him and his wife, and on which he re•sided. Years after his death, viz: in 1868, his widow, who had qualified us tutrix of their minor children, became indebted to them, and, at the time of settlement with them, gave them in payment of their claim against her, her undivided half in the whole land in Morehouse parish, and in other lands in another parish, the description of the land in the first named parish, including that of the land claimed by plaintiff, as being in section 21. In 1872, in the belief that he was then the sole owner of •the property in Morehouse parish, G. C. Ward sold a portion of it to W. M. Carpenter, his sister’s husband. In 1873, he sold to plaintiff real estate in the same parish, the specific description of which would correspond exactly with that claimed and described in the petition, as having been sold and acquired, but for the designation of the section, which is therein said to be No. 20, while it should be No. 21.

The evidence also shows that Levy was*-in possession of the land sold to him by Ward. The leases which he made to the latter in 1876 and 1877 necessarily imply that fact and identify the land. There were ninety odd acres of land in cultivation on the plantation which was intended to be sold and bought, and as many there were on the “Willy Ward Plantation” or "Ward Place,” leased by Levy to Ward, and which was expressly identified in one of the leases with the land sold on November 15th, 1873, by Levy to Ward. Ward and his sister, Mrs. Carpenter, subsequently, in 1875, effected a partition in kind of the lands which they then owned and held in indivisión, and which, several years previous, they had agreed to divide between themselves. By reason of that partition, while he acquired title to her share in the land in More-house parish, Ward transferred to her all his rights in and to other lands. The lease of 1876 shows that the plantation, the object ot the contract, contained about ninety acres in cultivation. There were but 45 fW acres under cultivation on the land described in the deed of Ward to Levy, and 49 ~pja cleared and cultivated on the land omitted from the description in the deed, and comprising, with the portion described, the “Willy Ward Plantation,” or “Ward Place.” There is found in section 20 the same quantity and description of land, but it is wild and unimproved. It is disconnected from the Ward Place, being more than a mile distant from it. Lots 2 and 3 thereof were never owned by G-. C. Ward, or any of the family, or of the name.

It is material to note that the leases made in 1876 and 1877 by Levy to Ward, were executed after the act of partition had taken place (in 1875) between Ward and Mrs. Carpenter. It is by those leases that the-land in the deed of 1873 was identified with that leased. Ward’s written admissions of the identity of the land, though made after the date of the deed, after he bad ceased to own the property, not being charged and proved to have been made in error, were conclusive upon him, and actually bind his legal representatives in the same manner.

The testimony of the surveyor, coupled with an examination of the-plat which he made, and which is in the original in the transcript, — independent of the testimony of the plaintiff, — satisfies us fully that the clerical error charged is clearly established, and that the plaintiff is. entitled to have it corrected.

It is impossible to suppose that Ward intended to sell and Levy proposed to purchase land to which the former could give and the latter receive no valid title. The rational conclusion which we reach is, that. the land described in the deed of November 15th, 1873, is that which composed the original “ Willy Plantation,” or “ Ward Place,” after taking from it the portion sold by G. C. Ward to W. M. Carpenter, in 1872, and that the number of the section mentioned in the deed of 1873, as being No. 20, is and should be deemed as being No. 21, of township No. 22, in Morehouse parish.

We cannot relieve the intervenor from the judgment appealed from, first, because the matter in dispute, under the intervention, is not appealable, and second, because, even then, the succession of Hope had no interest justifying the intervention, for the reason that the right asserted can in no manner be affected prejudicially by the judgment in this case on the issue of title between Levy and the estate of Ward to the land on which the succession of Hope claims to have a judicial mortgage, resulting from the inscription before Ward’s death of a money judgment against him.

We find no error in the judgment appealed from.

It is, therefore, affirmed with costs.

Mr. Justice Todd having been of counsel, recuses himself.


author: Poché, J.

text:
    No. 995.
    City of New Orleans vs. Mrs. W. L. Jackson.
    Under and by virtue of tlie Constitutional Ordinance of 1879 and Act No. 49 of tbe Legislature of 1880, tbe interest, as well as tbe principal, of tbe taxes due tbe City of New Orleans prior to tbe first of January 1879, may be paid in scrips or other proper evidences of indebtedness of said municipal corporation.
    But tbe judicial costs incurred in proceedings against tbe delinquents, are not included in tbe relief law, and must be paid in cash.
    ^PPEAL from the Civil District Court, parish of Orleans. Tissot, J.
    (Decided in Monroe by consent of parties.)

      J. Ward Gurley, Jr., Assistant City Attorney, for Plaintiff and Appellant.

      Sam’l P. Blanc, for the Sheriff, on same side.

      J. O. Nixon, Jr., for Defendant and Appellee:
    ITirst — Tbe concluding article of tbe ordinance of tbe Convention for tbe relief of taxpayers, includes interest and costs when it refers to taxes and licenses.
    Second — Tbe words taxes and licenses in Act 49 of 1880, includes interest and costs.
    Third — Interest is an incident of tbe principal — and is governed by same rules as to its manner of payment. Tbe Confederate Note case, 19 Wallace, 548. New Orleans vs, Clark, 5 Otto, 644; C. C. 2164, 2925.

      Pourth — There is no conflict between Act 49 of 1880 and articles 46 and 47 of the State Constitution.
    Pifth — The use of the word indebtedness in the Act 49 of 1880, show clearly that the intent was to cover principal, interest and costs.
    Sixth — The ordinance of the Convention and the Act 49 of 1880, are highly remedial, intended for the relief of delinquent taxpayers, and should be so construed.

      B. H. Marr on same side:
    The delinquent, owing city taxes due prior to the first of January, 1879, is entitled to pay the aggregate amount due, principal and interest, in the valid indebtedness of the city.
   The opinion oí t'he Court was delivered by

Poché, J.

In execution of three judgments in favor of the City of New Orleans, on taxes due by the defendant for the years 1875,1876 and 1877, and for interests and costs, amounting together to a large sum, the defendant’s property was seized by the sheriff.

She then made a tender in valid warrants of the city for the full amount claimed of her, but this tender was refused by the sheriff and the city, on the ground that payment of the interests and costs due on defendant’s taxes could be received in cash only, and could not be legally made or tendered in city scrip.

Whereupon the defendant took a rule on the city and the sheriff in order to compel them to accept the tender as made by her, and they have appealed from a judgment making that rule absolute. The solulion of the questions arising in this litigation turns upon the proper interpretation of the ordinance adopted by the Constitution of 1879, for the relief of delinquent taxpayers, and of Act No. 49 of 1880, applying the principles of the ordinance to the settlement of taxes and licenses due to municipal corporations. It is conceded by the city that the payment of the principal due on taxes exigible previous to the 1st of January, 1879, can be paid in valid evidences of indebtedness of the city; and the question is thus narrowed down to the inquiry whether the same mode of settlement is allowed for the payment of interests and costs.

The relief offered by the ordinance of the Constitution, to delinquent taxpayers of municipal corporations, was of a threefold character.

1st. To remit all interests, costs, fees and charges due on taxes and licenses due prior to the 1st of January, 1879, to all delinquent taxpayers who should settle before the 1st of January, 1881.

2d. To allow a discount of ten per cent from the date of payment of licenses and taxes to January 1st, 1881.

3d. To allow the payment of all taxes and licenses before or after the 1st of January, 1881, to be made in scrip or other evidences of indebtedness of the municipal corporation.

It is urged and argued by the counsel of the city, that, as the last clause of the constitutional ordinance, under which the settlement of taxes and licenses in scrip is authorized, contains no mention of, or reference to, interests, costs and penalties, which had been remitted to the delinquents for such settlements as were made during the year 1880, and which were revived as to all taxes and licenses not paid previous to January 1st, 1881, the conclusion is inevitable that the intention was to exclude interests and costs from the operation of the relief sought to be granted to delinquent taxpayers. An easy mode of discovering the intention of the Convention on this subject, is by considering the reasons which necessitated such a measure, and the object sought to be accomplished.

The evidence in this record shows that the number of delinquent taxpayers in New Orleans had reached in 1878, the alarming figure of 43,093, and that many of them owed taxes for every year from 1870 to 1878, with interest of ten per cent per annum from 1871.

In many cases the interests due on tax bills were nearly equal in amount to the principal of the tax, and few, if any, of the delinquents had the means, or could possibly realize the funds necessary to the settlement of these arreared taxes and accrued interests.

In consequence of epidemics which had devastated the city, of short crops, of decreased confidence in public affairs, and of other causes, the prosperity of the city had been suddenly checked, and business had gradually stagnated, until real estate had almost become a burden to its owners.

The heavy tax-liens which affected so much property owned by this army of delinquent taxpayers, had rendered this property unsalable, and had almost taken it out of commerce.

These facts were well known to the Convention, whose duty it was to find a remedy for the existing evil, and after mature deliberation that body adopted the ordinance under consideration, which was, doubtless, intended mainly to relieve the City of New Orleans of its financial embarrassments.

Experience had demonstrated to the members of the Convention the futility and the injustice of laws remitting to delinquents any portion of the taxes which they owed to either the State or municipal governments. Hence, they abstained from such a course, and prohibited the Legislature from the use of such an experiment in the future.

Knowing, on the other hand, that the floating indebtedness of the city and, of other municipal corporations was fast accumulating, in the same proportion that the number of delinquents was daily increasing, the Convention allowed the payment of taxes in such indebtedness, with the double purpose of relieving the taxpayers and the creditors of the city and of other municipal corporations.

Now, as the amount of interests due by these delinquents is nearly equal in amount to the principal of their taxes, a fact which must have been known to the Oonvention, it is manifest that the exclusion of interests from the operation of the relief, would have destroyed the efficiency of the measure, and defeated the end proposed ; and that, therefore, such an exclusion could not have been contemplated by the Oonvention. It is clear to our minds that the interpretation contended for by the counsel for the plaintiff, is notin keeping with the reason which prompted the measure, nor with the object proposed.

It was well known to the Oonvention, that under our laws interest on a debt or moneyed obligation is an accessory to the capital, an incident of the main obligation, and an outgrowth of the principal; and that all securities created, as well as all remedies given, tp enforce the main or principal obligation, apply alike to accrued interests borne by the main obligation, resulting either from the effect of law or from the consent of parties. And it is not a violent presumption to conclude thht the Convention contemplated the inclusion <~>f interests or accessories in using the words “ taxes ” and “licenses” in the last clause of the ordinance, which was intended as a great inducement to bring delinquents to the settlement of their arreared taxes. Several provisions in our Civil Code and in our Code of Practice come to our assistance in holding that remedial legislation affecting the settlement of the principal of an obligation, applies to all interests which may be due on the same.

Thus, Art. 2925, C. C., provides that the release of the principal without any reserve as to interest, raises the presumption that it also has been paid, and operates a release of it. In like manner will it be presumed that a mode of payment of the principal, created by law, without any reserve as to interest, will apply to the payment of the interest.

Pursuing the same spirit, our law, in Art. 157 of the Code of Practice, prohibits a creditor who has not claimed interest in an action on the principal, from claiming such interest in a separate action, as in such a case he will be considered as having remitted the interest.

It was, doubtless, in recognition of - these principles, that the city and the sheriff refused the whole tender made by Mrs. Jackson, while they acknowledged the legality of the tender in so far as the capital of the taxes due was concerned.

They knew that, under our laws, a settlement of the principal by litigation, would conclude the creditor against any future claim for the interests.

And thus our conclusion is justified by the very act of plaintiff, who, in refusing a settlement of its claim, unless it included the settlement o£ interests, recognizes that the two are so intimately blendód, as to be one and inseparable, and that all remedies affecting the one covers the other.

If the interest was so distinct from the capital of the tax due, as to be excluded from any legislation affecting the capital, without express reference to, or mention of, the interest, the city could without danger, have accepted the tender made for the payment of the capital, refused that made for the interests, and proceeded to enforce its lien, thus enhanced by a partial cancellation, as to the latter.

But counsel knew too well that such a course was impossible, for the reason that the law which grants the tax-lien and secures the interests as an accessory, does not mention interest which is covered by the lien only as an accessory of the principal, for the reason that a settlement of the principal would lead to the legal presumption of a settlement of the interest. And hence, they refused the whole tender, alleging “ that a part of the tender being illegal, the whole fell;” a reasoning which also acknowledges that the capital and interests formed together a unit, or a whole indebtedness, which could not be disintegrated so as to allow a mode of settlement of one portion different from the manner of settling the other portion.

Hence, we conclude that plaintiff’s counsel are in error in denying such a construction of the “ true intent and meaning ” of Act No. 49 of 1880, and in holding that, under such a construction, this act would be violative of the very constitutional ordinance which it was intended to invigorate and put into operation.

In our opinion, the Legislature in allowing delinquent taxpayers to settle their “ indebtedness,” which evidently embraces capital and interests, in scrip, correctly expounded the will and intention of the Convention, and the District Judge was correct in holding that the “interest follows the character of the principal, and that the constitutional ordi- ' nance which authorizes the settlement, in scrip, of licenses and taxes, necessarily embraces, in its operation, the settlement in the same mode of such interests as may have accrued on the principal obligation.” D’Aquin vs. Coiron, 8 N. S. 622; Fisk’s case, 14 An. 682; The Confederate Note case, 19 Wallace, 548; 5 Otto, 644.

Nothing in these conclusions militates with the provisions of Art. 46 of the Constitution which prohibits the enactment of local laws “ remitting dnes, penalties and forfeitures,” etc., or those of Art. 57, denying to the Legislature the power of “ releasing in whole, or in part, the indebtedness, liability or obligation of any corporation or individual to the State, or to any palish or municipal corporation therein.”

The remedial laws now under consideration, do not purport any such release, but only provide for a special and exceptional mode of collectiug the whole ot certain delinquent taxes, and the entire interests accrued thereon. But it is clear to our minds that such laws do not affect the settlement of judicial costs incurred by the city in proceeding against delinquent taxpayers; these costs do not form a part of the indebtedness due to the city, but are due'by the defendants in suits to the proper officers rendering service in such proceedings, and hence these costs are due and exigible in cash. The judgment of the lower court, which does not discriminate in favor of such costs, must, therefore, be amended in this particular.

¥e are informed by appellee’s counsel in his oral argument, and it is admitted by appellant’s counsel, that since her first tender she has tendered, in cash, that portion of the taxes due by her, which under existing laws is appropriated to the payment of the premium bonds of the city, and this question is, therefore, eliminated from the present controversy.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended in so far as it allows the payment, in scrip or certificates of indebtedness, of judicial costs incurred in proceedings against the defendant; which costs are hereby decreed to be due and exigible in United States treasury notes, or cash; and that in all other respects said judgment be affirmed, appellee to pay the costs of this appeal.


author: Fenner, J.

text:
    No. 538.
    J. M. Munholland vs. Mrs. Susan A. Scott et al.
    The fact- that the note, upon, which executory process issued, was prescribed on its face, and that the Administrator of the succession against which the suit was brought,* did not plead the prescription, does not affect the validity of the sheriff’s sale.
    The prescription of five years, under article 3543, O. C.} cures such informalities and irregularities in sheriff’s sales as: a waiver of notice of order of seizure and sale by an Administrator of succession; postponement of the sale; andan adjudication for less than the inventory appraisement.
    APPEAL from the Fifth District Court, parish of Richland. Brigham, J.

      Cobb & Qunby and P. H. Toler for Plaintiff and Appellant:
    First — On. arriving at age, the sole heir ean attach sales of his father’s estate while he was a minor, on showing that sneh sales were illegal and injurious.
    Second — The administrator cannot renounce prescription on a claim against the estate.
    Third — A writ of seizure and sale cannot issue until notice of the order has been served and the delays given.
    Fourth — After offering property once for cash without a sale, the sheriff cannot again, offer for cash under the same writ. He must at the second offering sell on twelve months credit.

      Fifth — After failure to sell under one appraisement, the sheriff cannot have another appraisement made of same property.
    Sixth — Where an order of seizure and sale is obtained by the relatives of the administrator on a prescribed claim on which a large amount had been paid and property of the succession is sold and bought in by such relatives for much less than its real value and less than its first appraisement, the sale is on its face fraudulent and collusive.
    Seventh — Such defects in a sale as work substantial injury to the parties interested, as fraud, lesion, injustice of claim, etc., are not prescribed by five years.
    Eighth — “ Informalities ” prescriptible by five years relate only to the manner, time and place of making the sale which do not defeat the rights of parties nor the ends of justice.
    Ninth — Without actual seizure of real estate the sheriff cannot sell it. Without possession, by the sheriff there can be no sale of property, and any such sale is a barren, absolute nullity, which cannot he cured by five years.
    Tenth — A sale made after a writ expires is the same as a sale made without the issuance of a writ.

      Boatner & Liddell for Defendants and Appellees:
    First— Oourts cannot supply the plea of prescription, and an order of seizure and sale will issue on a note prescribed on its face. O. C. 3463 ; 29 An. 698; 19 An. 266.
    Second — If the note was prescribed, it was the duty of the administrator to plead it; he may be responsible to the heirs, hut this is no ground to annul a sale. 28 An. 569.
    Third — The prescription of five years defeats all objections to irregularities and informalities growing out of a judicial sale. C. C. 3543; 29 An. 534; 21 An. 506.
    Fourth — Sales of succession property for less than the appraisement will not be disturbed where it is shown that the property brought its actual value. 29 An. 536; 29 An. 505r Herrmann vs. Fontelieu.
    Fifth — Want of actual seizure, when the purchaser goes into possession, is an informality cured by the lapse of time- and prescribed against in five years. O. C. 3643 ; 4 Otto 8, Pike vs. Evans.
    Sixth — Lack of notice of order of seizure and sale is au informality cured by the prescription of five years. 24 An. 24, Allen vs. Couret.
    Seventh — A writ of seizure and sale need not be returned in seventy days. Monition of Hall, 21 An. 692; 18 An. 656, Taylor vs. Graham.
    Eighth —While an estate is under administration, heirs have no right to sue for debts or damages due the estate. C. O. 1058,1048; 16 E. 459; 17 L. 500.
    Ninth — “ The minor claiming ownership of the land in controversy, because of alleged noncompliance with certain "forms of procedure, are themselves to be reproached with noncompliance, either by their ancestor or themselves, with the fundamental rule which obliges the buyer of a thing to pay the price of the sale.” Gillis vs. Coates, 29 An. 701.
   The opinion of the Court was delivered by

Fenner, J.

This action is brought by plaintiff -as sole heir of Lorenzo D. Munholland, to annul a sheriff’s sale of land to Mrs. Scott, made in executory proceedings taken contradictorily with, the administrator of his ancestor’s estate.

The grounds of nullity alleged are manifold, viz.:

1st. Fraud and collusion between the defendants. We find in the record not the slightest evidence of fraud, actual or constructive. We do not even discover proof that plaintiff was injured by the sale. Nothing in the record shows the property brought less than its value, at forced sale, at the time when it was sold, or that it would have brought more under any proceedings, however regular. If the then existing depression in property values had afforded legal ground for •demanding a postponement of the sale under creditor’s process, undoubtedly, a year or two later, the property would have sold for more. But the creditor had the right to require the sale then, — and it brought its then value as appraised by persons properly appointed, and whose good faith is not attacked. This is damnum absque injuria.

2d. That the note on which the order of seizure and sale was issued ■was prescribed and the mortgage thereby extinguished, and that the administrator had no right to waive prescription, and the sale was, therefore, null and void.

Courts cannot supply the plea of prescription. C. C. 3463.

The judge was authorized and bound to issue the order of seizure and sale, although the note appeared to be prescribed on its face.

Non constat that the plea of prescription, had it been opposed, might not have been overthrown by proper evidence of acknowledgment. The failure to oppose the plea is not even evidence of collusion or fraud, in this case, because under the existing jurisprudence in 1867, with reference to the effect of the war and the application of the maxim, contra non volentem, etc., there was no reason to suppose the note prescribed.

In any event, this circumstance could not affect the validity of the ■order and sale; but the sole remedy of the heir would be against the -administrator and his securities. Routh vs. Bank, 28 An. 569 Perroux vs. Lacoste, 19 An. 266; Gillis vs. Carter, 29 An. 698; Gill vs. Hosmer, 20 An. 219.

The remaining informalities and irregularities set forth as grounds for annulling the sale are covered by the prescription of five years established by the acts of 1835 and 1855, now embodied in Art. 3543 of the Civil Code, which runs as well against minors as persons sui juris.

They are the following, viz.: Waiver of notice of order of seizure and sale. See Allen vs. Couret, 24 An. 24.

Want of actual seizure, the purchaser having gone into possession. See Pike vs. Evans, 4 Otto, 6.

Postponement of sale. The creditor had the right to direct the postponement, with re-advertisement; and the writ did not expire in seventy days, as claimed. See Taylor vs. Graham, 18 An. 656; Monition of Hall, 21 An. 692.

Sale for less than the inventory appraisement. See Fraser vs. Zylics, 29 An. 534; Herrmann vs Fontelieu, id. 505; Succession of Hood, 33 An.

These irregularities are all causes of merely relative nullity, arising in proceedings subsequent to the decree, and covered by the statutory prescription pleaded. Woods vs. Lee, 21 An. 506.

It is a statute of repose, intended to quiet titles, and to create confidence in judicial titles, at least, after the lapse of this ample and reasonable time.

We have carefully examined the authorities quoted by plaintiff’s counsel, and do not find them to support the contrary views advanced by him.

The charge that no price was paid for the land, and that no debt of the ancestor’s succession was extinguished thereby, is manifestly unsupported by the evidence.

We find no error in the judgment appealed from, and it is affirmed at appellant’s cost.


text:
    No. 1024.
    John Guss vs. John P. Routon, Sheriff, et al.
    On Motion to Dismiss.
    This is an injunction suit to prevent the seizure and sale of homestead property worth $600. The judgment, of which execution is enjoined, is lor $1076. Held that the matter in dispute is the homestead property, and the claim is below the appealable amount, necessary to give this Court jurisdiction.
    ^PPEAL from the Seventh District Court, parish of Catahoula. Mam,

      Smith & Dagg for Appellees.

      Boatner & Liddell for Appellant.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

Appellees’ motion to dismiss this appeal on the ground: that the amount in dispute is not within our jurisdiction, must prevaiL Plaintiff enjoins the sale of a house and lot, which he claims as his homestead, and which he values at six hundred dollars, which had been, seized in execution of a judgment against him for $1076 96, in favor of John Henry & Co., seizing creditors, and he has taken the present appeals from a judgment dismissing his suit on an exception of no cause of action. He does not question the validity of the judgment, or pray for any relief from the general effect of such judgment, nor does he complain of the execution of the same.

His only object is to shield from seizure and sale under the judgment the property seized, which he claims as exempted from execution for any debt, as his homestead.

The issue presented is, therefore, the right of the judgment creditors to subject this property to the execution of their judgment, and plaintiff’s right to claim the same as his homestead under the exemption laws, and that issue involves an amount in dispute not exceeding six hundred dollars, and the case is, therefore, not appealable to this Court.

In all such eases the value of the property seized, and sought to be exempted from seizure in payment of any debt, under the exemption laws, and not the amount of the judgment in execution, is the amount in dispute, and is the test under which our jurisdiction is to be determined.

It is, therefore, ordered that this appeal be dismissed at appellant’s costs.