author: IIowell, J.

text:
    No. 2132
    J. D. Smith v. His Creditors.
    The tacit mortgage of the h eirs of their deceased mother on the property of their father, for tho restitution of the paraphernal property, or funds which ho has received, only attaches on the property of the father from and alter the date at which ho becomes the owner of tho property.
    The mortgage, resulting from a judgment against the husband and his brother in solido, rendered and recorded before the salo of the property from tho brother to the husband, will take precedence of tho tacit mortgage against tho property of the husband in favor of tho heirs for the restitution of tho paraphernal funds of their mother'deceased. Such preference of moitgage rights may bo enforced against tho proceeds where the property has been sold.
    A wiitten act of sale of real estate has no effect against third parties until itis reoordod in tho proper office, unless it is shown that the party affected by it had knowledge of its existence and contents.
    from tlio District Court, parisli of West Feliciana. Miller, J.
    IF. D. Winter, for plaintiff and appellant. Collins & Lealce and Lace, Foster & E. T. Merrielc, for opponent and appellee.
   IIowell, J.

The syndic lierein filed an account of Ms administration, by wMcb, after allowing certain charges, lie- proposed to distribute the balance of the funds in Ms bands among the heirs of Mrs. Mary C. Smith, wife of the insolvent, on account of their claim for paraphernal funds received by the insolvent during the marriage and seeured by legal mortgage. He also set down the said heirs as creditors with tacit mortgage in the sum of ten thousand dollars, for half the value of cotton on hand at the death of their mother and sold by the-father.

Alfred Penn, as a creditor, with a judgment duly recorded against Gordon A. and Joseph D. Smith, in solido, opx>osed the account on the grounds, among others, that Ms claim is omitted; ;that the claim of tho heirs of Mrs. Smith- to the funds to he distributed, and that for ten thousand dollars, are not legal charges against the insolvency, and if they exist, are ordinary claims; and that liis mortgage upon the property sold is superior to the title of J. D. Smith, the insolvent, who acquired it after the death of his wife.

The facts necessary to the inquiry arc the following :

In 1845 the Bank of Louisiana caused a plantation, called “ Solitude,” and the slaves tliereon, to be sold as the property of J. D. Smith, and became tbe purchaser thereof.

In 1846 the bank sold the same property to Gordon A. Smith, a brother of said J. D. Smith, and took a mortgage to secure the amount of the bond given in payment of the price. Ten days thereafter, Gordon A. Smith executed this instrument:

St. Fkancisville, May 18, 1846.

Having purchased of the Bank of Louisiana a certain tract of land, known as the Solitude plantation, and the slaves thereon, mentioned in said sale, mortgaged to the Bank by Joseph D. and Luther L. Smith, I, Gordon A. Smith, do agree and obligate myself, my heirs and assigns, when the amount of my bond for the sum of $11,779 97, shall have been satisfied, with the interest, to the Bank of Louisiana, by Joseph D. Smith and his wifo Mary Cora Smith, to transfer and make good to them the titles to said property, they to remain in possession of the same, to guard and repair as for their own use and benefit, said property.

(Signed) GORDON A. SMITH.

In 1858 this same property was seized under a jft. fa. issued in the case of the Union Bank of Louisiana v. Joseph D. Smith, Luther L. Smith and Ann E. Smith,” when Gordon A. Smith, as owner thereof, enjoined the sale. A compromise was effected, by which Gordon A. Smith and Joseph D. Smith gave the Union Bank their joint and several notes amounting to five thousand dollars, which became the property of Penn, the opponent, who obtained judgment on three of them in 1865, against G. A. and J. D. Smith, in solido, which was recorded on seventh December, 1865.

In June, 1863, Mrs. Mary C. Smith died, leaving nine children, the eldest being then married and of age.

On seventeenth May, 1866, Gordon A. Smith, by authentic act, sold the Solitude plantation to J. D. Smith, nominally for five thousand dollars cash, but shown, by the testimony of the two, to have been in consideration of the payment, by J. D. Smith, prior to January, 1860, to the Bank of Louisiana, of the amount of G. A. Smith’s bond, in compliance with the above document of eighteenth May, 1846.

On twenty-third May, 1866, six days after the above transfer, the succession of Mrs. Smith was opened and the father was confirmed in the tutorship of seven of the children. In the inventory, the “Solitude” plantation was included as community property, and the paraphernal claims, allowed by the syndic, were described. Counsel for the opponent admit in their brief that funds of the wife amounting to six thousand dollars, were received by the husband in 1857 or 1858.

On thirty-first January, 1867, J. D. Smith made a cession of his property to his creditors, placing on Ms schedule said plantation as community property, the proceeds of wMcb are nowin controversy between Penn and the heirs.

It is clear that the judicial mortgage in favor of Penn, the opponent, attached to said property on the seventh December, 1865, whether it belonged to Gordon A. Smith or Joseph D. Smith,’for his judgment was against both, in solido, and was recorded on that day; and the question is, had the mortgage set up by the heirs previously attached ? If so, it is because the property belonged to J. D. Smith before Penn’s judgment was recorded.

The legal title to the property existed in Gordon A. Smith, until he transferred it on the seventeenth May, 1866, but it is contended that the property actually belonging to Joseph D. Smith by virtue of the instrument of eighteenth May, 1846, the payment made by him in accordance therewith prior to the year 1860, and his constant possession up to the sale in these proceedings. This document, however, was never recorded, and whatever may have been, its effect as between the parties, it had none as to Penn, until it was adduced on the trial of his opposition herein — unless he had knowledge of it before, which is not shown. It is urged that his attorneys were aware of the actual ownership in J. D. Smith, because they were the attorneys of the Union Bank in 1858, when it's seizure was enjoined and the compromise was made, and also were the attorneys of the insolvent in opening the succession in May, 1866, when under their advice or superintendence, the “ Solitude” plantation was inventoried as community property.

The knowledge, presumed from the injunction against the Union Bank, is adverse to any ownership in J. D. Smith at that time; for the' injunction was successful in leaving the ownership claimed ande worn to by Gordon A. Smith, undisturbed and' recognized. At the date of opening the succession of Mrs. Smith, the transfer had been made to J, D. Smith, and the act of inventorying it as community property does not imply a knowledge in the’ attorneys that it had belonged to J. D. Smith by virtue of the written instrument in question.

In no other mode is knowledge imputed to the opponent, and we are not prepared to charge him with any such knowledge upon the evidence in the record, which, on the contrary, shows the title to have been in Gordon A. Smith from the eighth May, 1846' to the seventeenth May, 1866 — over twenty years — during which time his creditors could have made it liable for their claims against him. 6 A. 809; 16 A. 436. The claim of the opponent had its origin, as to him, in 1858, and passed into the form of a judgment with mortgage against him on seventh December, 1865, and the property went into the-hands or ownership of.J. D. Smith incumbered with said mortgage, and then became also subj ect to the mortgage as against the purchaser, J. p. Smith, by virtue of the same judgment. C. C. Arts. 3289 and 3296. This case is not parallel to that of Peters v. Toby, 10 A. 410.

Our conclusion is, that the mortgage of the opponent is superior to any in favor of the heirs of Mrs. Smith, deceased wife of the insolvent, and that, under the circumstances, this mortgage can ho enforced against the proceeds in the hands of the syndic. They are the proceeds of the property subject to opponent’s mortgage, which he can follow, and there is no proof that the mortgagor has other property. C. C. 3362; C. P. 301,402,403; 7 A. 344. Such a proceeding avoids a circuity of action.

As the judgment of the District Court simply denies the right of the heirs to the fund derived from the sale of the plantation, distributed in the account now before the court, and cannot affect their claims against any fund to be hereafter distributed, or against their father, we deem it unnecessary to disturb said judgment; nor do we think it essential to pass on the bills of exception in the record.

Judgment affirmed.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 2087.
    City of Baton Rouge v. T. J. Bird, Sheriff, et al.
    Ia tlie dedication of lands for the public use, no particular form need be observed ; all that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation.
    ■Where a dedication to public use of lands in squares, designated by metes and bounds is shown, and private individuals acquire the lands adjoining and surrounding it, with reference to the boundaries thereof, the lands so dedicated for the public use are out of commerce, and are not subject to individual or private ownership.
    PPEAL from the Fifth District Court, parish of East Baton Rouge. Posey, J.

      Burgess, Fuqua & Callahan, for plaintiff and appellant, A. M. Bunn and C. B. Favrot, Andrew S. Herron, and Barrote & Pope. for defendants and appellees.
   Ludeling, C. J.

In January, 1867, the plaintiff obtained an injunction to restrain the Sheriff from selling two squares of land situatedin the city of Baton Rouge, designated in the pleadings as “Mexico Square ” and “ Government Landing.” The petitioner alleges that the property belongs to the city of Baton Rouge, and that it has been in the possession of the city for more than twenty years without interruption. The petitioner then recites that the heirs of Elie Beauregard having instituted proceedings for a partition of the property,, obtained an order to sell these squares for that purpose. The plaintiff denies that said heirs have any right, title or claim to the property, and prays that the city of Baton Rouge may be declared the owner- of the two squares of ground, and be quieted in its possession thereof.

The defendants deny all the allegations contained in the petition, and especially that the city of Baton Rouge has any title to the property in its own right; they aver that-if the city has any title, it is for the benefit of and interest for them. They allege that they are the -true and lawful owners of the property, the sale whereof has been enjoined, and they pray that judgment may be rendered quieting them in their title and possession, and dissolving-the injunction with damages.

Tlie nature of the titles under which the parties respectively claim, is not stated in the pleadings.

Prom the evidence and the brief in this case, it appears that the claim of the city of Baton Rouge to the property in question is founded on a dedication of these squares to public use, by Elie Beauregard, the ancestor of the defendants, who now claim to be the owners of the two squares.

In the beginning of this century Elie Beauregard was in possession of a plantation adjoining the post of Baton Rouge, on which now stands the principal part of the city of Baton Rouge, lie laid off a part of this tract into lots, streets and squares; he juepared a plan of the proposed city, and he published a notice of his intentions and plan.

This must have been done anterior to the acquisition of Louisiana by the United States, as the map contains sites (emplacements) for the location of “Government Palace,” “Intendance,” and “King’s Store.”

The map in evidence is admitted to be correct, and in exact accordance with the plan described in Beauregard’s advertisement. This, map, as well as the advertisement of the plan of the city, clearly shows that the squares in question were intended to be dedicated to public use.

On the map a space is designated as “Plaza de Mexico,” and another space, fronting on the river, is designated as “ Plaza de Colomb.” In his advertisement Elie Beauregard says: “J’ajouterai settlement quelques explications rolatif au plan actuel.” * * * “Ilya sept places publique de differentes dimensions.” Of Plaza de Mexico and Plaza des Floridos he says: “ Ces deux places, qui pourraint étre, par la suite, ornées d’une fontaine dans leur .milieu, auront 230 pieds de large sur 310 de longeur, ét communiqneront á la Grande Place par des rues de traverse.”

Cousinard testified that ho had known Mexico Square about thirty-eight or forty years — that it had never been held as private imoperty, and was always considered as belonging to the city of Baton Rouge during that timo. Government Landing, or Plaza de Colomb, is. at the foot of Government street.

J. E. Elam testifies that he has known Mexico Square and Government Landing about twenty-five years; that neither of these places had ever been claimed or occupied as private property during that time. They were always considered and treated as public places. In 1865 Mexico Square was surveyed at the instance of the city; streets were laid off, and trees were planted on the square. What is now known as Government Landing is designated as Plaza de Colomb on the plan of the city, and the tradition relating to it is that it was intended as a public landing.

lias there been a dedication of the two squares to public use?

“ There is no particular form or ceremony necessary in the dedication of land to public use. All that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation.” 6 Peters 440; 3 An. 282.

In this case an actual dedication has been proved.

The consent of the owner is contained in the publication of his plan of the city, made at least as early as 1803, in which he says:

II y a sept places publiques de difluientes dimensions.” * * *

“Ilya aussi plusieurs autres emplacement destinés pour des.ótablisse-mént publique, tels que Palais du Gouvernemont, Maison de Ville, In-tendance,” etc.

The map of the city represents the two squares as public places ; the spaces occupied by them are not divided into lots, and a name is given to each square — Plaza de Mexico and Plaza de Colomb.

In the case of Beatty v. Kurts, 2 Peters 566, the Court held that there was a dedication to public use when a lot of ground had been marked out upon the original plan of an addition to Georgetown, “ for the Lutheran Church,” and had been used as a place of burial from the time of dedication. In the case of the city of Cincinnati v. White’s lessee, 6 Peters 182, the Court held that where a plan was made and approved by all the proprietors, by which a space was set apart as a common for the use and benefit of the town, and no lots were laid out on the land so designated, it was dedicated to public use. The evidence in the record shows that the property in question has always been regarded as public places; that they have never been assessed as private property, and that they have been left unoccupied and open as commons for the use of tire public from the date of the dedication till 1865, when trees were planted in the Plaza de Mexico.

Lots were bought and sold with reference to the plan of the founder of the city. After being thus set apart for public use and enjoyed as such for more than half a century, and private rights had been acquired with reference to it, the original owner or his heirs cannot be permitted to deny or revoke such dedication.

To do so would be a violation of good faith to the public, and to those who have acquired private property with a view to the enjoyment of the use thus publicly granted, as was well said in the case of the city of Cincinnati v. White’s lessee. Eeferring to the system of law under which this case was decided, Judge Martin said: “ I have looked in vain, in the opinion of the court, for a reference or allusion to any principle peculiar to the common law of England. It has appeared to me that the caso was determined on the first broad and general principles of law mentioned in the Corpus juris civilis, viz: Honeste vivere, to act honestly, from which is deduced the maxim of pollieiU servare fidem, when we have made a promise to keep it j and the necessary corollary, turpe est fidem fallero, it is shameful to disappoint expectations we hate authorized.” 5 La. 170 and 219.

We are authorized, therefore, in holding that there was a dedication to public use of the two squares iu question, and that they are “ hors cle commerce.”

In the brief filed for the defendants, it is said “ one of- two things was intended by Beauregard — either that he intended to erect the necessary buildings, and to lay off and beautify the grounds himself, or the city was to do it. In the first place it would not be a dedication, and in the second the city would have to do the work intended before it could be invested with title.” This is an error of .fact. As has already been stated, Beauregard dedicated certain squares to public use — he designated them, in his advertisement, “places publique,” and on the map, “ plazas.” There were other sites (emplacements) for public buildings, which he designated iu his plan, and which he expressly stated were to revert to him after the lapse of ten years, unless the buildings were erected within that period.

But tho squares in question are not included among the sites (emplacements) which were to revert to him, for no buildings of any land were to be put upon them; on tho contrary they were to be-open squares’ — ‘‘ plazas,” “ places publique.”

The facts in this case are different from those in tho cases-in 5 An. p. 8, 16 La. p. 703, and 14 An. 872. In these cases there was no evidence of dedication out of tho plan (map), and none in the plan out of the word Coliseum,” etc. The court held that a Coliseum, market and church may be private property, and that merely writing these words across a square on a plan of a town was not proof of the intention of the owner to dedicate them to public uses. But in this case there cannot bo room to doubt what Beauregard’s intention was — his language, corroborated by the map in evidence, is unmistakable.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided and reversed, and that there be judgment in favor of the city of Baton Rouge, quieting it in its title and possession to Mexico Square aud the Plaza de Colomb, and perpetuating the injunction issued in this case.

It is further ordered that the defendants pay the costs of both courts.


author: Wyly, J.

text:
    No. 1460.
    Theodora Theresa Perry v. Margaritta Webb.
    The right of expropriating a right of way over a neighbor’s property cannot be allowed, except in cases of extreme necessity,' and where a party can mate a road or passage over his own lots to the public streets, he must be required to do so. C. C. 695.
    from Second District Court of New Orleans, Thomas, J.

      Gollens & Wooldridge, for plaintiff and appellant, J. M. Dirrhmi-mer, for defendant and appellee.
   Wyly, J.

Plaintiff sues for a passage from her property over defendants property to Washington avenue.

The defense is a general denial and the prescription of ten years.

There was judgment for defendant and plaintiff has appealed.

In 1852 the husband of the plaintiff acquired a lot of ground in a square that was surrounded by other lots then vacant, and for a time passed over the lots owned by the defendant. Subsequently this passage was closed; and in 1861 the plaintiff bought from "William Lange the lots contiguous to her own, fronting on Music street.

Ever since said purchase plaintiff has had access to her property by passing over her own lots.

The value of the property would be the same, according to the evidence, whether it had a passage over plaintiff’s own property to Music street or over the defendant’s property to Washington Avenue. It is certain that the plaintiff has for many years been using the 'passage over her own property, and has not apparently suffered any detriment by the closing of the passage, over the defendant’s property.

This case is analagous to that of Pousson v. Perché, 6 A. 119, in which it was held that, “the right of passing over the defendant’s property is the forced expropriation of a participation in what belongs to her. This should never be done except in cases of extreme necessity.” Article 695 of the Civil Code gives the proprietor, whose estate is enclosed, and who has no way to the public road, a right to demand a passage over the estate of his neighbor.

We cannot perceive any right of the plaintiff to set up such a demand, she having already access to her property over her own lots on Music street.

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

Rehearing refused.


text:
    No. 2141.
    Liquidator of Clinton and Port Hudson Railroad Company v. B. M. G. Brown and Wife, and Delia Haynes v. The Sheriff and others.

      ( Consolidated cases.)

    The fact that certain of the Clinton and Port Hudson Railroad bonds were kept in the same safe where the liquidator of the company kept its papers, books and assets did not operate a payment of the bonds nor an extinction of the mortgage.
    Where the Sheriff held an execution issued in fayor of the company directing the sale of the ■mortgaged property, nothing short of a payment into the Sheriff's hands would operate aa a payment or satisfy the mortgage.
    from the Fifth District Court, parish of East Feliciana. Posey, J.

      8.- P. Punter, for plaintiff and appellee, Cross <& Pardee, Pace, Poster• & P. T. Merriclc, for defendants and appellants.
   Wyly, J.

The New Orleans Gaslight Company recovered judgment against the Clinton and Port Hudson Railroad Company for á large amount, and ordering the liquidator of said company (an insolvent corporation) to proceed to collect from the mortgage stockholders .the amount due by them, to be applied to the payment of the claims of the Gaslight Company.

The liquidator, Charles McVea, accordingly sued out an order of seizure and sale against certain lands near Clinton, Louisiana, which B. M. Gr. Brown and wife mortgaged to the Clinton and Port Hudson Railroad Company on tho seventh of November, 1835, to secure his subscription of sixty-two shares of stock amounting to $6200.

Mrs. Delia Ilaynes, the owner of two hundred and seventy-two acres of the laud, enjoined the sale. She acquired the land from her husband, Bythell Ilaynes, in settlement of his indebtedness to her for paraphernal funds, it having been purchased by him from tho original mortgagor, B. M. G. Brown.

She alleges that the debt for which the land was seized is diie by Brown; she verily believes it has already been paid and that the seizure and sale is for tho benefit of Brown. That said debt was paid in the following manner, to wit: “The Gaslight Company, tho real plaintiffs, sold to said Brown bonds and coupons sufficient to pay said debt, that said bonds were sold on the express condition that tliey were to be applied to the payment of this debt; and that as to plaintiff and defendant, said mortgage debt for which this seizure is made is actually settled. That said Brown being bound by law to pay said mortgage debt and having virtually paid it as herein set forth, cannot through the agency of his creditor thus seize and sell said tract of land sold by him to said Bythell Ilaynes, under whom petitioner holds with subrogation of all tho rights of her husband.”

Her petition concludes with a prayer for a writ of injunction for damages, and “that it be deciced that said mortgage debt is iully paid by tho bonds in the hands of said Brown or McVea, sold by the Gaslight Company to him expressly to pay said debt.”

On tho twenty-fourth of September, 1363, Janies R. Shelton purchased the land in question from Mrs. Delia Haynes, and on the fourth of June, 1867, he intervened in this suit; adopting the allegations of Mrs. Haynes he prayed that the injunction be sustained, that the claim of the liquidator be rejected, the mortgage be erased and he be decreed the owner of the land.

The court below rendered judgment in favor of the defendant, dissolving the injunction without damages, dismissing the intervenor at his costs, and ordering the sheriff to proceed and sell the property seized as directed by the writ.

The plaintiff Mrs. Delia Haynes, and the intervenor Jambé R. Shelton have appealed.

The question to determine is, has the mortgage to the Clinton and Port Hudson Railroad Company been; paid?

Appellants contend it has. They insist that the Gaslight Compáhy are virtually the owners of the mortgage under which the land in question was seized; that the original mortgagor Brown, purchased from said company their bonds for $C20), with the understanding that he was to use them in discharging the mortgage. They say this constitutes a payment.

We think the record does not sustain the assumption that the Gaslight Company are the owners or virtual owners of the' mortgage.

We understand their judgment against the Clinton and Port Hudson Railroad Company to he simply a recognition of their claims against the insolvent corporation and an order requiring the liquidator to collect forthwith the claims in his hands and apply the proceeds to the payment of their judgment.

The judgment of the Gaslight Company did not decree them to he the actual or virtual owners of the mortgages held by their debtor, the insolvent corporation; the order requiring the liquidator to make collections and. pay the judgment, did not operate as a transfer of the assets of the corporation.

The purchase by Brown of $6200 of the bonds and coupons of the Gaslight Company for $1200 in cash, even though receivable at par in satisfaction of the mortgage, did not amount to a payment of the mortgage. Even though they were sold to Brown for the express purpose of paying off the execution, still there would be no payment till the intention be carried into effect and the funds delivered to the sheriff or the liquidator. It is true the Gaslight Company received from Brown the $1200 in cash, but they delivered to him an equivalent, to wit: $6200 in their bonds and coupons, the market value of which was doubtless equal to the $1200. Until these bonds and coupons or the cash are paid over to the sheriff or liquidator, there can be no payment of the mortgage. The bonds and coupons of the Gaslight Company which they sold to Brown are still held by him. They have never been given to the liquidator in payment of the mortgage. The liquidator testifies he “never had absolute control over them so as to appropriate them to the payment of this debt.”

It matters not -where the bonds were kept, whether in the same safe or same portfolio that the liquidator kept the assets of the insolvent corporation^ the bonds remained in-possession óf tho attorney and agent of Brown — they were and are, in effect, in Brown’s possession.

Bythell Haynes, the husband of the plaintiff, and to whose rights she is subrogated, was well aware of the existence of the mortgage on the property when he purchased it from Brown; it was stipulated in the-act of sale, that “he (Brown) does not and will not warrant” against the mortgage in favor of the Clinton and Port Hudson Railroad-Company.

Bythell Haynes was the liquidator of the Clinton and Port Hudson-Railroad Company at the time the Gaslight Company recovered their judgment. With a knowledge of all the facts he accepted title without warranty; and we consider the application comes with bad grace for relief under the equitable powers of this court.

It is therefore ordered that the judgment appealed from he.affirmed with costs.

Rehearing refused.


text:
    No. 2056.
    The State of Louisiana v. Singleton Parks.
    The qualifications of jurors to serve on the grand and petit juries in the courts of the State are, that they inusfc he qualified electors of Louisiana. Acts of 1868, No. 110.
    Where one of the panel of the grand jury is disqualified, any indictment found by them is null and void, and the accused may raise the objection and show the fact after verdict.
    from the Thirteenth District Court, parish of Concordia. Sough, J.

      S, Belden, Attorney General, for the State. Jmnes £r. Leach and T. P. Farrar, for defendant and appellant.
   Ludeling, C. J.

The record in this case shows that, on the same day, the defendant was indicted, arraigned, and tried for the-crime of murder. The jury found him guilty.

A new trial was .prayed for on the grounds — 1st, that the verdict of the jury was .contrary to'the law and the evidence; 2d, that defendant was not furnished a copy of the indictment and a list of the jury which was to try him, two entire days before the trial; Sdj that since the trial, evidence material to his defense has been discovered. ’■ Later, an amended motion for a new trial was filed. It set forth the following ■grounds:

1. That Robert Coulter, one of the grand-jurors who constituted the grand jury which found the indictment against the defendant, was not a citizen of the United States, nor a duly qualified voter of the State of Louisiana, at,the time he was elected, empanneled, sworn -and charged as a grand juror, and, consequently, was not a competent juror.

2. That five of the jurors, who tried the case, had formed and expressed an opinion, adverse to the defendant, before the trial; and that the foregoing facts were not known to the defendant until after the trial.

This application was supported by the affidavit of the defendant and others.

The District Judge refused the new trial. A bill of exceptions was taken to the ruling of the Court, in which the foregoing facts, as well as.the reasons of the Judge, are stated.

It will be necessary to examine only one of the questions presented by the bill of exceptions.

It appears -from the record that Robert Coidter., one of the grand jurors composing the jury, which found the indictment, was incompetent, and that this fact was not known to the defendant until after the trial. Can this objection be urged after verdict.

Mr. "Wharton says, “anew trial will be granted at common law, where it appears after verdict that some one of the jurors should not have been permitted to sit upon the trial, on account of an eiitwe legal incapacity.'” Wharton 923; State v. Babcock, 1 Conn. 401.

This Court has decided that such an objection to a petit juror, who trie(d the case, is not good cause for a new trial, because the accused had had an opportunity to inquire into the qualifications of the juror upon voir dire examination; and haying waived the right accorded to him by h\W> waived, ivitli it, every objection which lie might have urged to th.e juror; and because he should not be permitted to take the chance, of a verdict in his favor, and when it is rendered against him, to complain Of the incapacity of those whom he had accepted. 8 R. 59b; 7 An. 122 ; 12 An. 678; 14 An. 461, 673.

But these reasons do not apply when the objection is urged against one of the grand jurors composing the jury which found the indictment. The accused liad no opportunity to question the grand jurors, and to object to any of them if they had not the legal qualifications. He did. not, therefore, waive any of his rights.

Neither could he urge an objection lefo.re trial, when he only learned of its existence after trial. • The law does not require an impossibility.

In Tlie State v. Jones, this Court said:.“We find from Hawkins1' Pleas, of the Crown, book 2, chap. 25, sections 26, 27, 28, that in the construction of the statute of the 2d Henry IV., C. 9, the. following points have, been decided: 1 That a person arraigned upon any indictment, taken contrary tp the purvieu of this statute, may plead such matter in avoidance, of the indictment. That a person outlawed- upon any such indictment without a trial, may. show, in avoidance of the outlawry, that the indictment was taken contrary to the form of the statute. That I*, any of the grand jury, who find an indictment, be Within any one of the exceptions of the statute, he vitiates the whole, thoiigh never so many unexceptionable persons-joined with him -in finding;it.’ We feel satisfied that this construction furnishes the nicest and- safest rule of decision; and. that the incompetency of one of the grand jury so to find a bill of indictment, vitiates the whole proceeding,” 8 R. 617.

Prosecutions shall be by indictment or information. Constitution, apt. 6.

“The qualifications of a juror to serve in any of the courts of this State shall be the following:

To be a. qualified elector of the State of Louisiana.” Acts of 1868, No. llu.

■ Robert Coulter-, not being a qualified elector of the State of Louisiana, was not a competent j-uror, -and ¿he bill of indictment found, by the grand jury of which he was a member was a nullity. The District Judge should have set aside, the verdict;of the jury and quashed the indictment, when the fact wgs brought to his knowledge.

It is therefore ordered, adjudged .and decreed, that the judgment of the District Qourt.be avoided, that the verdict of the jury be set aside, and that the case be remanded to tip District Court to be proceeded wjth according to law.


author: Howell, J.

text:
    No. 2010.
    Succession of Widow A. D. Tureaud v. L. Gex, Administrator of R. Many, deceased, Opponent.
    when an heir Recomes the joint proprietor of, mortgageable hereditary property, the mortgage resulting from tlie recording of a judgment against him'attaches to his part or portion thereof, subject to the prior debts and’ mortgages ot the succession. The enforcement of such mortgage is dependent u^on the jinal settlement of- the succession.
    Wlieye succession property has been solcLat prohate sale, the mortgage creditors may pursue the funds arising from the sale by way of third opposition to the account of the administrator, and hav.e their mortgage rights ^ecogpi^ed, and, enforced against the proceeds of the sale of the mortgaged property, the same as.they could.against the property itself before the sale.
    from tlie District Court, parish of St. James. Beauvais, J.

      Berault (£ Legendre, for plaintiff and appellant. G.audet & Romani, for defendant and appellee.
   Howell, J.

At tlie partition suit of tlie heirs of age, the District Judge ordered all the property (being immovable) of the succession, of the widow A. D. Tureaud, declared to he held in common by the legal heirs, to be sold in block, which brought $100,000 payable.according to the decree, $40,000 cash, and..the balance in three equal installments,, egcli payment divided into as many, notes as the administrator■ required for the purpose of making, a partition., thereof among the heirs. After the sale the administrator, one of the heirs, filed a final account of his administration, showing ajbalap.ee in. cash of $33,000, and notes amounting to $60,000 in his hands for. partition among the heirs, of which he made and -filed along w-ith. the- above account, what he termed a 4-tableau of partition,” allotting a sum of $18,600 to each heir, and he prayed that public notice of’ the filing of both, with his prayer for discharge he given ; that the heirs he severally cited, that after due proceedings the account and tableau ” he homologated; that he he authorized to settle with the heirs and all concerned agreeably thereto, and that upon filing evidence pf settlement with the, said heirs and all concerned, he he discharged.

The homologation • of said account and tableau was opposed 'by L. Gex, administrator of R. Many,, deceased, a.creditor by judgment duly recorded, of Emile Tureaud, one .of the said heirs, on the ground that the. recording of liis said, j udgmeiit, against, said Emile, Tureaud, prior to the saje for partition., operated- as, a judicial mortgage on all the property, of the said, debtor, and. entitled, him to be paid the amount thereof out of, the, portion accruing to-the latter; and. he prayed that the administrator, of the succession of widow Ture.aud h.e condemned to pay the amount of said judgment, interest and,costs accordingly.

Tlie administrator of this.- succession- excepted to the petition of opposition; that it. showedmo.cause. of action, and no, claim against the estate of widow Tpreaud-or theadministrateiyand answered that, upon receiving the price of the property, sold, and reserving the sum necessary to pay the debts, .then.outstanding .and- charges of the, estate, the amount of cash and notes. accruing to. said Emile Tureaud by said tableau of partition was paid over to him long previous to the filing of this opposition; that as administrator he was not bound to take notice of the pretended judicial mortgage against said Emile Turead; that at the time of making the distribution among the heirs as aforesaid, the case of the said Gex, administrator, v. E. Tureaud, in which the alleged judgment was rendered, was on appeal in the Supreme Court, and that in no capacity had he the right to withhold from said E. Tureaud any sum to pay such judgment as might be rendered in said suit; and he called in warranty the said Emile Tureaud, who filed a general denial to the opposition, defended the administrator in his course of distributing the funds among the heirs without taking cognizance of- any proceeding or process instituted by the opponent, denied the right of the latter, being no creditor of this succession, to intervene in this cause, and prayed that the opposition be dismissed and the account be ho-mologated.

The exception was maintained, and the opponent appealed.

We would remark here that the fact of the partition being made by the administrator, and his call upon all persons' concerned to show cause why his account of administration and ‘‘-tableau of partition” should not be homologated, and the funds distributed and paid accordingly, may make this case one sid generis ; and the question we are called on by the parties to decide upon the exception is, does the opponent; under the law, disclose a right of action or a right to demand, in this form of proceeding, to be paid the amount of his judgment against one of the heirs, duly recorded before the sale for a partition, out of the portion of the proceeds of the immovable hereditary property in the hands of the administrator, and according to his said judgment debtor ?

The answer to this question depends on the solution of the primary question whether or not a judicial mortgage attaches to the undivided share of an heir in the mortgageable property of a succession.

Some doubt is cast upon this point in the opinion of two of the judges in giving the decision of the majority of the court, in the case of Voorhies v. DeBlanc, 12 A. 864; but an examination of that case will show that the point was not decided, nor was it directly presented.

The right of a coheir or coproprietor to create a conventional mortgage on his undivided share of immovable property has been frequently recognized and enforced. See 12 R. 450; 3 A. 542; 9 A. 212; 12 A. 236; 19 A. 167; C. C. 3268, 1434. This last article provides that the heir to whose share an immovable or other thing susceptible of mortgage has fallen, is not bound by the .mortgages which his coheirs may have given on their individual shares of the same previous to the partition, and these mortgages are dissolved of right, except upon the property which falls to the heirs who have given the mortgages, if the property is susceptible of being mortgaged. Article 3268 implies that one having a right that is suspended by a condition, or may be extinguished in certain cases, may agree to a mortgage subject to the same condition and liable to the same extinction.

The lieir being considered seized of the succession from the moment of its being opened, the. right of possession, which the deceased had,. continues in the person of the heir, as if there had been no interruption and independent of the fact of possession; and each of several heirs becomes an undivided-proprietor of the effects of the succession for the part or portion coming to him, which forms among the heirs a community of property as long as it remains undivided. C. C. 936, 1214.

Now, article 3290 declares that the judicial mortgage takes effect from the day on which the judgment, is pronounced, if it lias been.duly recorded; and article 3296 says the j udicial mortgage may be enforced, against all the immovables which the debtor actually owns at the date-of -the recording, or may subsequently acquire.

When, therefore, an heir becomes the joint proprietor of mortgage-able hereditary property, the mortgage resulting from the recording of a judgment against him attaches to his part or portion thereof, subject, however, to the prior debts and mortgages of the succession, and its enforcement is dependent upon the final settlement of the succession. -

In this case the record shows, as to the point under consideration, that Emile 'Tureaud was a proprietor in common with his coheirs, of the hereditary property, which was all immovable, and according to the foregoing principles, the judgment in favor of the opponent having been recorded prior to the sale, operated as a judicial mortgage on his share. A similar principle is recognized in the case of the Union Bank v. Marin, 3 A. 34, 36, where it is distinctly announced that the legal mortgage of minors attaches on the undivided share of their tutor in the immovables oí a succession as soon as he accepts it, subject to the right of priority of the creditors of the succession. Article 3362 C. C. makes no distinction as to the kind of mortgage, whether conventional, legal or judicial, and it provides, that the mortgages shall bo paid out of the funds according to their rank.

The next, or the original question hero arises, as to the right of the creditor with a judicial mortgage to claim, by way of opposition, as done here (which we liken to a' third opposition), the funds in the hands of the- administrator accruing to his judgment debtor, and is not without difficulty.

If the property had been- partitioned in kind, the mortgage in question would have attached to and could have been enforced against the share allotted'to the judgment debtor. C. C. 1434; Acts of 1855, p. 337. And if the mortgage were, conventional, it would, according to the interpretation-given to'the above article and statute, in the succession of Pigneguy, 12 R. 450, have been raised from the property and attached to the proceeds. This doctrine has been reaffirmed in 9 A. 212, and 12 A. 236, and is recognized in the case of DeBlanc v. Dumastrait, 3 A. 546. But the riñe is deemed by some to be different as to general mortgages, and the articles 710 et seq. C. P. said to apply. In Lecar-pentier v. Lecarpentier, 5 A. 499, it is said, the act of 1843, p. 44, reenacted 1855, p. 337, is not applicable to licitations nnder which the property is adjudicated to a party having previously no interest in it, and the intimation in Union Bank v. Marin, 3 A. 36, that a public sale under a consent decree caused the minor’s mortgage to attach to the proceeds, was declared to have originated in a misreading of the act of 1843. But in Fabre v. Hepp, 7 A. 9, it was held that the sale under an order of the court of the tutor’s property, with the undivided interest of his deceased spouse, released the mortgage in favor of the minor as to all the property, which doctrine Mr. Justice Rost, who dissented at the time, said in 7 A. C12, had become a rule of property, and should be respected. These conflicting views, it will be seen, arose in contests with the purchasers of the property sold, which was sought afterwards to be held liable to the general mortgages; and the difficulty may probably be considered as waived or removed in this case by the mortgagee’s pursuing the proceeds instead of the property. And after anxious and mature deliberation, we have concluded that the opponent herein has set out in his petition a cause of action — a right to be paid out of the funds which the administrator declares, in his tableau and petition, are in his hands as belonging and to bo paid over to Emile Tureaud, the judgment debtor of the opponent, and which, under the pleadings and facts of this case, must be held to be liable in his hands to the demand of the opponent.

If the mortgage attached to the property, and was raised therefrom by the sale under an order of court, it ■would seem to be a legal sequence that it attached to the proceeds in the hands of the administrator, and the mortgagee entitled thereto, may take legal steps to recover them. And the right of creditors of heirs to intervene in the proceedings for a partition is not unknown to our law. Article 1342 C. C. expressly accords it to creditors holding mortgages created by the donee on property to be collated, in order to oppose the collation which may injure their rights.

It is therefore ordered that the judgment appealed from be reversed; that the exception of the administrator, Tureaud, be overruled, and this cause remanded to the lower court to be-proceeded in according to law, on the opposition of L. Gex, administrator of R. Many, deceased. Costs of appeal to be paid by the appellees.


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    No. 2096.
    State of Louisiana v. George A. Fosdick.
    The penalties imposed on merchants for selling-'hay in the city of New Orleans without first having it inspected according to law is not A tax upon imports or upon the produce of other States of the Union "brought here for sale, but is simply a protection to the public against the introduction of commodities that are unfit for commerce.
    The Constitution of the United States expressly permits the" StatedHo pass inspection laws.
    xjl PPEAL from the Third Justice’s Court, parish of Orleans. Monta-mat, J. P.

      Hornor & Benedict, for the State, appellee. Given Campbell, for defendant and appellant.
   Wyly, J.

The State sues to recover from the defendant the penalty of one hundred dollars for selling one hundred hales of hay without having them inspected as required by the act of the twenty-eighth March, 1867, entitled An Act to establish the office of Inspector of Hay for the city and port of New Orleans, and to regulate the duties appertaining to the same,” and by the Act amendatory thereof, approved September 18, 1868.

The answer admits that the defendant sold the hay without having the same inspected under the acts of the Legislature referred to ; but denies any liability to the State for violating said acts ; it avers that the hay was produced in New York and consigned to him by citizens of that State for sale, and acting as a commission merchant, he sold it shortly after its arrival in the same packages in which it was prepared for market by its owners in New York. “ That the hay thus introduced into the State of Louisiana from the State of New York and thus sold, is exempt from import duty and other tax for the benefit of the State of Louisiana.” That said laws compelling said inspection and imposing a penalty for failing to comply therewith, are in conflict with the Constitution of the United States, and therefore void, being in effect laws levying import duties and regulating commerce between the States.

The court below gave judgment for plaintiff and the defendant has appealed.

The facts are not disputed; the defendant sold the hay without having it inspected as required by law, and the State claims the penalty prescribed in the law.

The act of the eighteenth of' September, 1868, amendatory of the third section of the act of twenty-eighth March, 1867, makes it the duty of the inspectors of hay to inspect all lots of hay in the city. * * It further provides that no liay shall be sold in the city of New Orleans until it has been once inspected as provided for in this act, and that any person who shall sell hay in said city and port that has not been inspected as aforesaid, shall be liable to a penalty of one dollar for every bale so sold, to be recovered with costs of suit, in any court of competent jurisdiction.

The question to be considered is whether this act violates the Constitution of the United States. Article 1, section 8, clause 3 declares that: the Congress shall have power * * * to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.”

The second clause, section ten, of the same article provides that no State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what 'may he absolutely necessary for executing its inspection laws.” * * *

The object of the inspection laws is doubtless to ascertain whether the merchandise is fit for commerce and to protect the community from fraud. In the act we are now considering we can perceive no import duty or tax, nor any benefit resulting to the State except to protect its citizens and its market from commodities that are unlit for commerce. The fees allowed to the inspection officers are only a remuneration for their services; the defendant has not complained that they are excessive. The issue is not that the fees allowed the inspection officers are more than are absolutely necessary, but that the law itself in effect levies import duties and regulates commerce between the States, which the Constitution of the United States prohibits.

We do not perceive that the acts referred to levy any imposts or tax upon the products of other States sold in this State.

The State derives no revenues therefrom. The acts are in the nature of police regulations established for the protection of the markets of this city against the sale of products unfit for commerce. The Constitution expressly permits the States to pass inspection laws.

The authorities cited by defendant do not apply to this case.

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


text:
    No. 2175.
    State of Louisiana, ex rel. W. J. Sandlin, District Attorney, v. The Judge of the Eleventh District of Louisiana.
    A party cannot bo sued at any other domicil© or before any other court1 than the one having jurisdiction over the place of his residence. By the provisions of the act of the Legislature, approved April 19, 1861, No. 173, any party, defendant, is prohibited from electing any other domicile toan that of his residence for the purpose of being sued. Acts of 1S61, page 137.
    from the District Court, parish of Caddo, Leuisea, J.

      S. JBclden, Attorney General, for the State, appellant. 0, lioselius, for defendant and appellee.
   Howell, J.

' This is a proceeding under the act, No. 156, approved October 15, 1868, (session acts, p. 199) to declare the defendant disqualified to hold the office of Judge of the Eleventh District.

- The defendant is a resident of the parish of Claiborne, and, by consent, the suit was instituted and tried in the parish of Caddo, which wo consider prohibited by article 162 C. P., as amended by act approved nineteenth March, 1861, which declares that no one shall be permitted to elect any other domicile or residence than his own for the purpose of being sued, except where expressly provided by law. There is no law making this case an exception.

The Constitution, article 90, has directed how a case may he tried when the judge of the court is interested. Consent cannot give jurisdiction against the law.

It is therefore ordered that the judgment appealed from be reversed and this action dismissed, without prejudice'to the rights of the parties. The appellee to pay costs of appeal.


author: Wxly, J.

text:
    No. 1095.
    J. M. Juillard v. P. Rogay.
    Where a party, during the Jate war, placed a large amount of Confederate treasury notes in the hands of another as agent, to invest in the purchase of cotton, and the agent failed to give a correct and faithful account of the transactions to his principal, no action will lie to enforce a settlement of the dispute between the principal and agent.
    from tlie Fourth District Court of New Orleans. Théard, J.

      A. <& M. Voorhies, for plaintiff and appellant. A. Robert, for defendant and appellee.
   Wxly, J.

Plaintiff sues the defendant to recover the- value of seventy-eight hales of cotton which he alleges "the defendant bought., as his. agent, with his funds, and afterwards illegally sold and appropriated the proceeds to his own use.

The supplemental petition alleges that in January, 1865, petitioner by verbal agreement, appointed the defendant Iris agent to purchase cotton for him in the parish of Natchitoches, and that in a few weeks thereafter said Rogay purchased said cotton from the persons named in the original petition or account annexed, with funds which he had entrusted to him for that purpose. ■ . .

The answer denies generally the allegations of the petitioner, and avers that the only transactions the defendant ever had with him was to sell him a lot of cotton in February, 186-1.

The court below rendered judgment in favor of the defendant, and plaintiff has appealed.

It appears that the defendant, Rogay, was introduced to the plaintiff in this city in the early part of January, 1864, and sold him twenty-five bales of cotton then on Soldini’s plantation, in the parish of Natch-itoches. That about the same time the plaintiff gave the defendant $6000 in Confederate treasury notes, to invest in cotton for him in said parish. It appears that the defendant was a cotton speculator, having made investments therein before he knew the plaintiff, and having continued to purchase for himself after he had received the funds of the plaintiff. Shortly after receiving said funds from the plaintiff ho went to Natchitoches parish and purchased some cotton; he returned and had a settlement with plaintiff, paying him over three hundred dollars in Confederate notes and turning over to him twelve bales of cotton at Mrs. McTier’s at ninety-five cents per pound, amounting to $5700. He also sold the plaintiff several other lots of cotton stored od different plantations in said parish.

The plaintiff subsequently went to said parish to look after his cotton, and was not permitted to ship it by the Confederate authorities then occupying the parish. It was afterwards burnt or stolen except eighteen bales, which the plaintiff recovered.

Plaintiff instituted suit against Mrs. McTier for the cotton on her place, and recovered judgment against her for its value.

Plaintiff contends that his agent, the defendant, was unfaithful in reporting to him the cost of the McTier cotton at ninety-fire cents per pound, wliéréas, in fact, she sold it for only six cents per pound in the seed; that the defendant invested the $5700 of his money in the purchase of the various lots which he afterwards sold to him ; that plaintiff actually purchased his own cotton from his agent.

The evidence does not establish the allegations of plaintiff.

There is no positive and satisfactory proof in the record, the witnesses appearing to derive their knowledge only from the statements of the plaintiff and the defendant in various conversations had with them, not in the presence of each, other.

Their testimony fails to establish that any of the lots of cotton except the McTier lot were purchased by the defendant with the funds of the plaintiff.

Mrs. McTier testifies that she sold her cotton at six cents per pound in the seed to Edward Seicliepein. We do not think the proof is conclusive that defendant bought the cotton for his principal at that price. The evidence, however, discloses that the funds placed in the hands of the defendant were Confederate treasury notes, and if the agent has not accounted satisfactorily to his principal for them, we cannot lend the aid of this court to settle disputes in reference to an unlawful currency. If the agent bought cotton at six cents per pound and accounted to his principal in cotton at ninety-five cents per pound, then he would owe him the difference between the actual and pretended price paid therefor. We cannot give judgment against the defendant for this difference in price without sanctioning transactions in a currency reprobated by law.

However contradictory and absurd the two affidavits of the defendant may be, they do not satisfactorily establish the main position of the plaintiff that his agent sold him the McTier cotton and the Soldini cotton which already belonged to him, having been previously bought with his own funds.

The cotton at Airs. McTier’s was bought for plaintiff and accounted for by his agent at ninety-five cents per pound.

The testimony of Yalade and the admissions of the parties in the record prove that the twenty-five bales on Soldini’s plantation were purchased by the plaintiff from the defendant at the time they became acquainted, and before he had the funds of the plaintiff. Plaintiff admitted he bought from defendant the twenty-five bales on Soldini’s plantation in the fore part of January, 1864, and paid him $1625 or thereabouts therefor. In his amended petition he only claims that he appointed the defendant his agent in January, 1865.

We do not think the affidavit of the defendant sufficiently overcomes the allegations and admissions of the plaintiff to establish his previous ownership of1 the cotton.

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


text:
    No. 1495.
    Louis Trost v. Moses Fox and Henry Weber.
    No appeal lies from a judgment not signéd by the judge. ■ O. P. 546 ; 8 An. 62 ; 12 An. 750.
    A [\_ PPEAL from t lie Fourtli District Court of tlie parish of Orleans. Théard, J.
    IF. IF. Handlin', for plaintiff and appellee. J. J. F. Planchan!, for defendants- and appellants.
   Ludeling, C. J.

Tlie record in this case shows that the'judgment appealed from is not complete — it is not signed by the District Judge. Code of Practice article 546; 17 La. 485; 4 E. 52; 3 An. 62; 12 An. 756.

It is therefore ordered that the appeal be dismissed at the cost of the defendants and appellants.

Keliearing refused.


text:
    No. 2116.
    B. Silvernagle & Co. v. William East, Aministrator.
    Where more than five years have elapsed after the maturity of a promissory note, before suit is brought, and nó interruption or ronunciátion is shown, the plea will prevail. C. C. 3505; 2 An. 131, 6G5.
    from the Fifth District Court, parish of East Feliciana. Posey, J.
    IF. F. Kernan and S. H. Lyons, for plaintiffs and ap-pellees. J. JI. Muse, L. M. Pipkin, Cross & Hardee and Pace, Foster & F. T. Mcrriek, for defendant and appellant.
   Wyly, J.

Defendant has appealed from a judgment against him as administrator of the succession of William anti Mary Sandle, on two promissory notes — one due on first November, 1861, and the other due seventeenth May, 1862.

The defense is a general denial and the prescription of five years. This suit was instituted after the prescription of five years had accrued on each of the notes; There' is no renunciation or interruption of prescription proved.

Plaintiffs have without avail attempted to avoid the consequences of prescription by proving that judicial proceedings could not be instituted on account of the rebellion- Tlie plea of prescription is well taken. C. C. 3505 ; Rabel v. Pourcian, 20 A. 132; Smith v. Stewart, lately decided.

It is therefore ordered that the judgment appealed from be avoided and annulled, and that this suit be dismissed at plaintiffs’ costs in both courts.


author: Ludeeing, C. J.

text:
    1805.
    H. Peychaud et al. v. Citizens’ Bank of Louisiana.
    "Where mortgage creditors claim the proceeds of the sale of mortgage property made under a judgment, they cannot be permitted to allege the extinction Of the judgment and the consequent nullity of the sale under which the proceeds were realized.
    Where there are two separate debts, and to secure the payments of which two separate mortgages are given on the same property, che date of registry of the mortgages will determine ihe rights of the holders.
    from tlio Fifth District Court of the parish of Orleans. Léáumont, J.

      A. á ilf. Voorhies, for plaintiffs and appellants. Smwm.es & Mott, for defendant and appellee.
   Ludeeing, C. J.

On the ninth of April, 1858, Littlejohn Brothers mortgaged their plantation to E. A. Rawlins, to secure the payment of a debt of $17,207, with eight per cent, interest per annum from the first April, 1858, and a note of $1039 14, with eight per cent, interest per annum from the first of March, 1859, and five per centum attorney’s fees.

This mortgage was recorded on the fifteenth of April, 1858. On the ninth of July, 1859, Rawlins transferred this mortgage claim to Bur-bridge & Co.

On the thirteenth of July, 1859, Burbridge & Co. obtained a judgment against Littlejohn for the sums above stated, with a recognition of the mortgage of the ninth of April, 1858.

This judgment was duly recorded in the mortgage record in the parish of Assumption, where the plantation is situated, on the sixteenth of July, 1859.

On the twenty-eighth of March, 18C0, Bellocq, Noblom & Co. paid this judgment to Burbridge & Co., and they were expressly subroga-ted to all the rights of Burbridge & Co.

, On tile thirtieth day of March, 1860, William Littlejohn executed a mortgage in favor of Bellocq, Noblom & Co.

In the act of mortgage he recites that he is largely indebted to Bel-locq, Noblom & Co., and particularly “in first, a sum of $3500 paid by said firm for his account to Joseph B. Littlejohn; and second, a sum of $23,275 33, paid by said firm for his account to J. W. Burbridge & Co., the transferees of E. A. Rawlins, which amounts had to be paid in conformity with the conditions of an act of sale from J. B. Littlejohn to him, said William Littlejohn, and an act of agreement with Willie G. Littlejohn.”

It recites further that he is unable to pay his debts in cash, and is desirous to extend the same, and to have the aid of Bellocq, Noblom & Co. • to carry on his business; and he mortgages his plantation, etc., to them to secure the debts due and to he contracted, not to exceed together $110,000, exclusive of interest.

The Citizens’ Bank, under executions and judgments against Bellocq, Noblom & Co., seized all the rights, title and interest of Bellocq, Noblom & Co. in and to the judgment recovered by J. W. Burbridge & Co. against William Littlejohn; and at the sale the Citizens’ Bank bought tlie judgment. Execution was then issued under the judgment, and the plantation of Littlejohn was sold by the Sheriff to the bank for $31,000.

The plaintiffs, syndics of Bellocq, Noblom &. Co., sued the Citizens’ Bank to recover the price of the sale “ for distribution in due course of law;”' and “in case the court should be of opinion that said bank, as adjudicatee of the judgment of J. W. Burbridge & Co. v. Littlejohn, is entitled to a pro rata portion of said fund, then that petitioners recover of said bank twenty-four thousand nine hundred and twenty-two dollars,” with interest and costs. Several holders of notes drawn by Littlejohn and endorsed by him, which are secured by the mortgage executed in March, 1860, intervened and joined the plaintiffs in their demand against the bank.

The question presented for decision is, which mortgage is superior in rank, that of Burbridge & Co., acquired by the Citizens’ Bank, or the mortgage executed by Littlejohn in favor of Bellocq, Noblom & Company?

We say this is the question for decision, because it was admitted by plaintiffs’ counsel in argument that the Burbridge judgment was not novated, and the act of the thirtieth March, 1860, itself clearly shows that the judgment is not novated.

Besides, the plaintiffs and intervenors aro claiming the proceeds of the sale made under the judgment; they cannot be permitted, therefore, to allege the extinction of the judgment, and consequent nullity of the sale under which the proceeds were realized. Livaudais v. Livaudais, 3 An. 455.

It is, however, contended by the plaintiffs’ counsel that the bank has no greater right than Bellocq, Noblom & Co. had in the judgment, and that, the latter could not have asserted the priority of the Burbridge mortgage over theirs successfully.

This, we think, is an error. The principle announced in the case of Solzman v. his creditors, 2 R. 241, and Ventress v. his creditors, 20 An. 359, is not so broad as contended for by plaintiffs’ counsel. In the case cited, parts or installments of one debt secured by a mortgage were transferred to third parties. The court held that the original mortgagee having sold a part of his claim, could not compete with his transferees for the proceeds of the mortgaged property.

In the case at bar, however, there are two separate debts and two distinct mortgages. And the rights of the holders of the debts secured by these two distinct mortgages must be determined by the dates of the registry of the mortgages.

The mortgage under which the Citizens’ Bank claims is dated ninth April, 1858; the mortgage under which the plaintiffs and the inter-venors claim was passed on the thirtieth March, 1860.

It is therefore ordered, adjudged and decreed that the judgment of the District. Court be affirmed, and that the appellants pay the costs of appeal.


text:
    No. 1471.
    Succession of C. Espinola.
    To give tlie Supreme Court jurisdiction of the appeal the amount in dispute must oxcoed $500. Myers v. Mitchell, 20 An. p. 633.
    A general allegation of opposition to all the items on the debit side of the account, -without proof to sustain it, will not give tho Supreme Court jurisdiction. Tho amount over which there is a contest only can be talcen into consideration in determining tho question of jurisdiction, and if not above five hundred dollars, tíie appeal will bo dismissed.
    A PPEAL from tlie Second District Court of New Orleans. Tliomas, -IJl J.

      JE. Mlleul, for administrator, appellant. JD. O. Lahatt and W. W. Mandlin, for opponents, appellees.
   Howell, J.

On the sixth March, 1867, the administrator of this succession filed an account of his administration, showing assets amounting to $9093 33, and debts and charges amounting to $4346 06, to which two oppositions were made — one by Messrs. Semmes & La-batt, claiming to be recognized as creditors for $350 for professional services, and one by C. Tarafa, of Cuba, asking that all the items on tho debit side of the account be reduced as excessive, and that ho have judgment against the succession for fifty dollars in gold deposited with C. Espinóla in December, 1859, with interest from the twenty-seventh September, 1864. The account so far as not opposed, was homologated on the nineteenth March, 1867.

The opposition of Semmes & Labatt was maintained; that of Tarafa in part by allowing $35, and the administrator appealed. Tarafa by answer joins in the appeal, and asks that the judgment be amended in his favor by allowing him fifty dollars in gold or exchange, and interest and costs as claimed below.

The appellant in his brief states that the claim of Semmes & La-batt, who make no appearance in this eourt, has been settled, and that the only matter now in controversy is tlie sum of fifteen dollars, the difference between the amount claimed by and that allowed to the opponent, Tarafa, who in his oral and printed argument insists upon a judgment for fifty dollars in gold with interest.

Although Tarafa opposed all the items on the debit side of the account as excessive, and asked that they be reduced, there was no contest as to them in the lower court, nor evidence touching them — nothing said about them here. The only matters contested there were the claims of Semmes & Labatt and of Tarafa, which together do not amount to five hundred dollars, and their allowance would not affect the claims of the other creditors. In such a case, the fact that the value of the succession or the amount distributed by the administrator exceeds that sum, does not give jurisdiction to this court. It is the matter in dispute only that gives it. If the amount over which there is a contest exceeds five hundred dollars, this court would, under the settled jurisprudence, entertain the cause, although no one of the claims reached that sum. Such is not the case here.

It is therefore ordered that the appeal herein be dismissed at the costs of the appellant, the succession of C. Espinóla.


text:
    No. 2150.
    State of Louisiana v. James O’Brien alias Francis O’Brien.

      L party convicted by a jury, on tlie information of the District Attorney, of the crime of larOqpy, cannoturge in arrest of judgment thqt the charge of burglary is not properly set out ip t^ie information.
    from th.8 First District Court, parish of Orleans. Abell, J.

      S. Bolden, Attorney General, for the State, appellee- J- J- B. Planchará, f r defendant and appellant.
   Wyly, J.

The defendant appeals from a judgment convicting him of the crime of larceny.

The information on which he was tried contains two counts, burglary and larceny.

The accused excepted to the proceeding on the following grounds, viz:

First — The word “ burglariously,” which is necessary, is not mentioned ;

Second — The information is vague and not specific, nor is the time mentioned at which the burglary was committed ;

Third — The goods taken are not sufficiently described.

It is unnecessary to inquire whether the charge of burglary was properly set out in the information, as the defendant was convicted under the count of larceny.

It appears in the information that the defendant is charged with breaking and entering the dwelling house of Anatol Voisin, in tho parish of Orleans, with intent to steal, on the night of the eighth day of November, 1863; and “at the time and place aforesaid,” that tho accused feloniously did steal and carry away nine pieces of silk of the value of one hundred dollars apiece, four silk velvet cloaks of the value of one hundred dollars each, and three skirts of the value of five dollars each, the goods, property and chattels of the said Voisin, there being found, &e. '

The allegations in the information are sufficiently specific as to the time the offense of larceny was committed, as to the description of the things stolen, and in all other respects.

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


text:
    No. 1499.
    Richard Francis v. W. T. Lavine et als.
    In a suit for the liquidation and settlement of partnership transactions and accounts,and a partition of the property held in common, all the partners or parties interested must be.cited and made parties.
    from the Second Judicial District Court, parish of Plaque-mines. Caxabat, J.

      B. Jloxoard McGaleb, for plaintiff and appellee, ilf. B. JDubuisson and George L. Bright, for defendants and appellants.
   Ludeling, C. J.

This is a suit for a settlenjeivt; of a partnership and partition of the partnership property,

Jolm T. Gersdorf, and others of the defendants, have not been cited. The sheriff’s return states that service of citation was made “by leaving the same with Asa Payson, the captain of the Pilot’s Association, at Southwest Pass, in this parish, the said Gersdorf being absent at the time of said service.” A similar return was made on the citations directed to three others of the defendants. The service is defective. C. P. Arts. 187, 190. It is well- settled that in suits for the liquidation and settlement of partnership transactions and account's, and for a partition of property held in common, all the partners, or parties interested, must be made parties to the suit. 6 N. S. 188; 6 La. 689.

It is therefore ordered, adjudged and decreed that the judgment.of the -District Court be reversed, and that this case be remanded to be proceeded with according to law.


author: Howe, J.

text:
    No. 1894.
    P. H. Morgan v. F. Tamiet.
    A, in his capacity of lessor, brought suit against B, liis lessee, for rent; A afterward brought suit against B to annul’the lease and restore the leased premises. B excepted to the latter suit on the ground that the same cause of action was pending in the other suit. Soon after filing this exception of lisjicndens to the suit to annul the lease, B filed an answer to the suit for rent, setting up a reconventional demand in damages, with a prayer that he be quieted in the possession of the premises leased, and argued on the trial of the exception of lis pendens that the issue created by the answer was the same as the demand for possession m the suit to annul the lease.
    Held — ‘that B could not urge the pendency of a contestation thus created by himself against a prior demand of A.
    .4 JA. PPEAL from tlie Fifth District Court for the parish of Orleans. Léaumont, J.

      A. c6 AT. Voorldes, for plaintiff and appellant, Ji. JBcrtnndcz, for defendant and appellee.
   Howe, J.

The plaintiff instituted this action to annul a lease made by public act by and between himself as lessor, and the defendant as lessee, on the ground that the latter has .violated its provisions by failing to pay the rent and certain tases. The prayer of the petition is that the lease be annulled and that the property therein leased be returned to plaintiff and that he be put in possession of the same.

The defendant filed the declinatory exception of lis pendens, averring that similar suits involving the same cause of action and demand had been previously instituted, and were still pending in the Second Justice’s Court of New Orleans, the Third District Court of New Orleans, and the Fifth District Court ’for the parish of Orleans. The Court below dismissed the exception, and the cause having been tried on the merits, and judgment having been rendered in favor of plaintiff as prayed for, the defendant has appealed.

■ The exception was properly discussed. None of the suits mentioned in the exception constituted lis pendens as to the controversy now before us. The suit in the Justice’s Court was for an amount of taxes alleged to be due by the tenant. The suit in the Third District Court was for rent. In each a judgment for money only was demanded, and no decree-dissolving the lease and restoring the property to the landlord could have been rendered. The same may be said of the suit pending in the Fifth District Court;, but it is contended by the defendant that, because in the last named suit he filed a plea in reconvention, claiming large damages, and praying “to be quieted in the possession of the leased premises,” the plea of lis pendens must be maintained as against the suit at bar, which is a suit to recover possession. It appears, however, that the petition of plaintiff thus excepted to was filed October 5, 1868, that the exception of lis pendens was filed October 19, 1868, and that the claim in reconvention in the other case, with, the prayer to be quieted in possession, was filed October 28, 1863. If the effect of this claim and prayer was to make an issue identical with that now before us, as the defendant contends, we can conceive that the plaintiff might plead lis pendens, but it is difficult to perceive how the defendant can urge the pendency of a contestation thus created by himself against a prior demand of the plaintiff.

In the case before us the plaintiff sues for a different object from any embraced in the other suits we have recited. The distinction between an action for rent, which is in enforcement of the- contract to pay it, and leaves the tenant in possession, and an action to dissolve the lease and to recover the property, is plain.

Upon the merits the case is free from doubt.' • The defendant lias failed to pay his rent as it fell due, and as demanded, and the judgment was properly rendered in favor of the plaintiff as. prayed for.

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

Rehearing refused.


author: IIowe, J.

text:
    No. 2117.
    Peet, Simms & Co. v. Jared R. Jackson et al.
    "Where o promissory note is prescribed on. its face, and no interruption is shown, the plea will prevail. 20 An. 131, 565.
    from the Fifth Judicial District Court, parish of East Feli-ciana. Posey, J.

      HeVea & Kilborn, for plaintiffs and appellees. Pace, Foster & F. T. Merriclc and Gross <& Hardee, for defendants and appellants.
   IIowe, J.

The bill of exchange sued upon in this case matured on the fourth December, 1861, and the suit was not instituted until the eighteenth January, 1868. Neither interruption nor renunciation of prescription is shown. The plea of prescription of five years filed in the court below should have been sustained. Rabel v. Pourciau, 20 An. 132; Smith v. Stewart, lately decided.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment for the defendants, with costs in both courts.


text:
    1498.
    I. Blum & Co. v. Alexander L. Marks; Wright, Brinkerhoff & Co. v. The Same. — Sonneborn & Co., Herman, Auguste & Co., M. Herzog & Co., and L. Dryfoos & Co., Intervenors, etc.

      [Consolidated Cases.]
    The Courts of Louisiana -will recognize and enforce the right of stoppage in transitu arising from a sale of goods in New York to an insolvent residing in New Orleans.
    The transítús of ¿he,.goods is not at an end while in the custody of the carrier, and before they have been delivered to the consignee.
    To entitle the vendor to have ihe goods stopped in transitu he must show that, at the time of the sale, ho was ignorant of the insolvency of the vendee. The discovery of the insolvency before the delivery is sufficient to entitle the vendor to the exercise of the right, although the goods rnay'iiavo been attached by a creditor of the vendee.
    from the Third District Court of New Orleans. Pellowes, J.

      Thomas J. Cooley, for plaintiffs and appellees. Phillips & Levy, Jlornor efi Benedict, and A. L. Tissot, for intervenors and appellants.
   Howe, J.

The plaintiffs in these cases, residents of the city of New York, attached on hoard the steamship “ Star of the Union,” upon her arrival at this port on the twenty-fourth of April, 1866, certain merchandise which had been sold to the defendant by the intervenors about the twelfth day of the same month, and consigned on the steamer above named.

The obligations on which the plaintiffs sued were contracted February 23, 1866, and were for goods sold at a credit of sixty and ninety day's, abd upon botes at forty-five and sixty days.

The property seized consisted of six cases of merchandise. They never came into the actual or constructive possession of the defendant to whom they had been shipped. It appears that he had absconded after the purchase of the goods and before their arrival, and the deputy sheriff executed the writs of attachment at the moment the vessel touched her wharf in New Orleans.

The vendor's of these Jgood‘s intervened, claiming respectively such portion as each had sold, on the ground substantially that they had sold the property to defendant about the twelfth April; that he had become insolvent, and that they had exercised the right of stoppage in t'ranhitii, in 'such manner and at shell time as to give them a cláim oh the property 'Superior to that of the plaintiffs.

Pending Hie litigation, and at the instance of plaintiffs, the goods were sold by the sheriff. The court a qua gave judgment in favor of I. Blum & Co. for thé amount of their claim, to be paid by preference out Of the proceeds of sale, and dismissed the claims of the plaintiffs, Wright, ‘Brinkerhoff &0o.,'and the claims of all the intervenors. .

From, this1 judgment the intervenors only have appealed; and the present cofitfebt is, therefore, between I. Blum & Co. hs attaching creditors,-and the intervenors as vendors, who claim to have stopped the gbods in transit.

It seems to be conceded -by the parties, that the court's of‘this State will recognize the right of stoppage in transitu, arising from a sale in New York combined with spich otlier facts as by law confer tbe right. It is quite clear, also, that under tbe tacts óf tbis case, as they will hereafter appear, the privilege of the attaching creditors must yield to the claims of the vendors, provided thé latter show that they had the right of stoppage and duly exercised it. 15 Wend. 143; 15 La. 464; 9 A. 92.

It is contended by plain tiffs that, if the defendant was insolvent, at all, he was insolvent at and before the time of the sale of the goods in dispute, and that therefore the right of stoppage did not exist, and this brings us to the main question in the case. It is clear that the defendant was in failing circumstances at the time he made the purchases, but we do not find at that moment any visible change in his pecuniary condition, any open and notories act on his part, calculated to affect his credit and put the vendors on their guard. It may well be that if the iutervenors knew the defendant to be insolvent at the time of sale they could not claim the right; but it is. plain that in this case they were not aware of the condition of the defendant. About seven weeks before they made the sales, he had a standing in New York good enough to enable him to obtain credit from the very plaintiffs in these suits, to the extent of some eight thousand dollars. The iutervenors, so far as we can discover, were not aware of any change in his pecuniary condition when they sold him the goods in controversy. They show that they shipped the goods by the Star of the Union; that in three or four days they learned for the first time that he was an insolvent and had absconded; that they immediately notified the carrier in New York, requiring him to hold the goods; that as to three of the inter-venors, the agent of the line in New York telegraphed to the ■agent in New Orleans directing him to hold the goods; and that as to the other, notice was given to the agent in New Orleans by the attorneys. These telegrams were received, and this notice given, here, about four days before the steamer arrived; and the agent in New Orleans testifies that he was liras prepared to hold the goods, and would have done so if the sheriff had not taken them out of his hands. Undér such circumstances, it would seem inequitable, indeed, to allow the plaintiffs to seize these goods, of which the intervenors had, practically, resumed ■ possession.

We have been referred by plaintiffs to the case of Rogers v. Thomas, 20 Conn. 53, in support of the doctrine for which they contend, that the insolvency of the vendee must occur after the sale to authorize the Stoppage; but the basé does not fully sustain their view. In that case the Court said, p. 631

b We think, therefore, that in order to authorize' a stóppage in transitu, there should be some ostensible and certain criterion by which the insolvency of the vendee maybe ascertained; and that .it should consist of some sensible change in his pecuniary situation,' some open, notorious act on his part, calculated to affect his credit — some change jp his apparent circumstances which would operate as a surprise on the vendor, and which, if he had known, he would not have given credit jo the vendee.

“The remaining inquiry respects the time when such insolvency-must occur, in order to confer the right. On this point we are of opinion that it is not sufficient if it exists when the sale takes place, bu b that it must intervene between the sale and the exercise of such right.”

We apprehend that this language, if entirely correct, would not militate against the claims of the intervenors, for no such insolvency appears in this case until three or four days after the sale.

In Botlingk v. Inglis, 3 East. 381, where goods were shipped from'St. Petersburg to London to a person who had committed an act of bankruptcy before the shipment, the right of stoppage was recognized, under the law merchant, as well as the Russian- law.

In Buckley v. Furniss, 15 Wendell 139, it was considered that if the seller knew of the insolvency at the time of sale, the right might not exist, but it seemed to have been taken for granted that if he did not know of it, its covert existence would not impair the right.

In Conyers v. Ennis, 2 Mason 236, the vendee was “deeply and fraudulently insolvent ” at the time of the sale, yet Mr.'Justice Story, who delivered the opinion of the court, does not seem to have thought that this fact would destroy the right of stoppage, but the right was denied because, before its exercise, the transit had been terminated by delivery.

In his late work on mercantile law, Mr. Parsons says : “ It 1 a) been held that the insolvency must occur after the sale has taken place,” and he cites the case in 20 Conn., in which, as we have seen, the word “insolvency” is used in the sense of a notorious failure of credit; “but,”he adds, “we are not disposed to consider this as the correct rule, but should hold that the right existed in case of insolvency before the sale, unless this fact were known to the vendor at the time of the sale.” Mer. Law, ed. 1862, p. 61 and notes.

In fine, if, as seems to be now well settled, the right of stoppage be only an extension of the common law lien of the seller on the thing sold for his price, we are unable to perceive any reason for the distinction sought to be established by the plaintiffs in this case, and must therefore conclude that the judgment of the District Court was erroneous.

Our attention is called to a bill of exceptions reserved by plaintiffs to the introduction by the intervenors of certain telegraphic dispatches, “purporting to be dispatches from their houses in New York to A. Moulton, agent, in New Orleans, requesting the agent to hold and not deliver certain cases of merchandise shipped by them to defendant,” on the ground that no proof was made that the papers produced were in the handwriting of any person employed in the telegraph office, or any other proof of their authenticity, and they refer to 15 An. 668.

We find in the record no such dispatches as -those referred to in this bill of exceptions. It appears elsewhere that the intervenors gave due notice to the carrier in New York, that such notice was communicated to'the agent iii New Orleans in ample time, and that the goods were never delivered to the consignee. It seems unnecessary, therefore, to pass upon the hill.

Por the reasons given, it is ordered and adjudged that the judgment appealed he, as to said I. Blum & Co. and the said intervenors, avoided and reversed; that the claim of said plaintiffs he dismissed as in case of non-suit; and that each of the intervenors have judgment respectively ior the proceeds of the sale of the goods claimed and identified by each, with costs, to he paid as follows: to Sonneborn & Co. the proceeds of the case of goods marked “No. 7407;” to M. Herzog & Co. the proceeds of the case of shirts, etc., marked “A. L. Marks; ” to L. Dryfoos & Co. the proceeds of the three cases marked “ A. L. M., 1068, 1069, 1070 ; ” and to Herman, Auguste & Co. the proceeds of the remaining one of the six cases seized and sold. It is further ordered that the appellees, 1. Blum & Co., pay the costs of the appeal.


author: Ho weli., J.

text:
    No. 1438.
    Schneider & Zuberbier v. N. Dreyfus. — W. H. Letchford & Co., intervenors.
    To avoid the examinations of issues improperly raised by the answer, the more regular practice is, to object to the introduction of testimony to sustain them. 20 An. 198. •
    Wheroashle of personal property has been completed by delivery (although fraudulent), the judgment creditor of the vendor cannot seize it in the hands of the purchaser until the sale is declared null by a revocatory action ; the case is different in a simulation.
    from the Sixth District Court of New Orleans. Duplantier, J.

      Honor i§ Benedict, for plaintiffs and appellants. ■ Bradford, Lea & Finney, for defendant and appellee.
   Ho weli., J.

Plaintiff brought suit against defendant for the amount of a hill of groceries, and, claiming the vendor’s lien, caused the goods sold to he sequestered. W. II. Letcliford & Co., wholesale dry goods merchants, intervened, claiming to be the owners of said goods by virtue of a transfer, by authentic act, of the contents of the grocery store of defendant, including the goods sequestered, delivery of which, it is alleged, was made before the seizure herein. Plaintiffs answered, charging said sale to he fraudulent and simulated. Judgment was rendered in favor of the intervenors, and the plaintiffs appealed.

It is shown that the deputy sheriff, charged with the writ of sequestration, found a man, wearing the badge of a police officer, in possession of the store, who referred him to the chief of police. The deputy afterwards, under instructions from the sheriff, applied to the chief of police, and was there informed that Letcliford & Co. had purchased the said store, and was furnished by the chief’s aid, named Boylan, with an order to the officer in charge of the store not to interfere with the sheriff. With this order the deputy and Boylan went to the store of Letchford & Co. to inform them of the intended seizure. Prom there tliey went to the store of plaintiffs, and thence to make the seizure— all on the twenty-first September, 1866. On the trial, Letcliford & Co. introduced in evidence tbe notarial act of sale, dated September 18,1866, from defendant, Dreyfus, to them of tbe stock, fixtures and appurtenances of a grocery store at tbe corner of Magazine and Orange streets for tbe price of $5398 09, received by satisfaction and settlement thereof being endorsed, by tbe vendees and holders, on tbe note of tbe vendor, Dreyfus, for said sum, dated September 7, 1866, and due at sixty days from its date, which seems to have been retained by tbe vendees. This act was witnessed by Boylan and Izard, two aids to the chief of police, who bad accompanied a Mr. Moss, of tbe bouse of Letehford & Co., to the store of Dreyfus on tbe day of sale, which visit resulted in all tbe parties repairing to tbe office of the notary to pass the act of sale, after which, on tbe same day, tbe store was closed and tbe keys with tbe lease turned over to Moss, who placed tbe first mentioned police officer in charge as keeper — Dreyfus appearing not to have anything more to do with tbe store thereafter.

These aids to tbe chief of police profess that they acted in tbe matter simply as private individuals, and that no intimidation was used to induce Dreyfus to execute the act of sale. Letcliford & Co. also show that Dreyfus was indebted to them for goods in tbe amount of tbe said note and for which tbe note was given, but was not due at the date of tbe sale.

It is evident, notwithstanding the unusual circumstances, that the sale was real and was followed by delivery of possession prior to the seizure under the writ of sequestration; but plaintiffs contend that, the property being movables, it was unnecessary to resort in the first place to the revocatory action, and they quote the cases of Kirkland v. Gas Company, 1 A. 299, and Jonan v. Dreux, id. 364, as authority to sustain them; and they further contend that, admitting the rule of practice to be otherwise, such rule cannot be applied in this case, as the intervenors did not file, in limine, an exception to the plea of fraud set up in the answer to the petition of intervention, in support of which they cite the case of Dangian v. Blacketer, 13 A. 595. On this point they reserved a bill of exceptions to the action of the judge a quo in sustaining the motion of the intervenors to strike out of the answer the charges of fraud and unjust preference and to hear no evidence thereon, which motion was made after the trial on the merits had begun and evidence admitted, and to which motion plaintiffs objected on the grounds substantially:

1. That the intervenors, not having excepted to the answer, and the parties having gone to trial on the pleadings, the motion came too late.

2. That plaintiffs had a right in law to be heard under said pleadings.

I. The first ground is not supported by our rules of practice. Except tions to answers are not required in our system. All the allegations of tbe answer are considered as denied by the plaintiff (C. P. art. 329), qnd two modes bayq beep, -followed tb exclude an examination qf isgppg improperly presented: one by striking out on motion, and the other by objecting to the admission of evidence to establish them; both being in effect the same, but the latter is deemed the more regular. See Lallands v. Ball, 20 A. 193.

II. The second ground presents the broad question of the right to attack collaterally an actual but fraudulent sale of movable property. The rule is admitted to be different in regard to a like sale of immovable property. The only case, in which we are aware a distinction has been made, is that of Kirkland v. Gas Company, 1 A. 299, quoted by jilaintiffs, in which the distinction seems to be based on the wqnt of knowledge in the seizing creditor of the fact of the sale — such knowledge not being presumed in sales of property not required to be made in writing and recorded for the information of all persons.. But we are unable to perceive that the law authorizes a distinction to be made on account of the character or nature of the property. The correct rule we consider to be this: a creditor may at his peril seize under any of the writs authorized by law, and if a third jiossessor shows that ho holds under a real contract, .the seizing creditor will be required to desist (except whore his proceeding may be specially permitted by law), and to resort to the revocatory action. If, on the other hand, the alleged transfer is proven to be a simulation, a mere shadow casf upon the real title, the court takes no notice of it and the seizing creditor is allowed to procoed. Bee 1 A. 364; 2 A. 912; 14 L. 426 ; 2 K. 99; lilt. .288; 6 A. 193; 18 A. 732; C. C. 1978. The only .question then that can be examined collaterally, in such cases, is that of simulation. In this case the right to seize was predicated solely on the vendor’s lien, and as there was a real sale, and delivery was made prior to the seizure, the lien was thereby lost (C. C. 3194,) and the annulling of such sale for fraud could not restore the privilege and thus maintain the sequestration, but would subject the property fraudulently transferred to the payment of the plaintiffs. C. C. 1972. The Codo contemplates that contracts made in fraud of creditors shall be annulled by the revocatory action, and this only when the debtor has not property sufficient to pay the complaining creditor. C.' C. 1965, 1966.

We must conclude that the plaintiffs could not in this indirect mode set aside a sale although fraudulent and subject the property to thpir writ of sequestration, and that the Judge a quo did not err in refusing to try the question of fraud on the intervention. He did not restrain them from proving simulation!

Judgment affirmed.