author: HoweLl, J.

text:
    No. 2673.
    Crane, Breed & Co. v. J. W. Quinn, Constable—William Phillips, Warrantor.
    The order of a constable of a justice’s court, permitting a party to take possession of property which he holds under a writ of sequestration, is null and void, because the constable, as such, is vested with no judicial power whatever. Therefore if the constablo deliver to another the possession of property in his hands under a writ of sequestration, without an order from tho justice who issued the writ, he is liable to the owner for the value thereof. In a suit by the owner to recover the value of property which has been illegally parted with, the constable can not be permitted to discharge his liability by returning it. He can only do so by paying its value. ,
    APPEAL from the Seventh District Court, parish of Orleans.

      Col-lens, J. II. D. Ogden, for plaintiffs and appellees.

      Wench <& Svft, for defendants and appellants.
   HoweLl, J.

Plaintiffs claim of J. W. Quiun, Constable of the Second Justice’s Court, parish of Orleans, the sum of $800, as the value of a hearse. The constable answers that he delivered said hearse, on a release bond, to one William Phillips, who had caused the same to be sequestered in the suit of William Phillips v. Bleakley & Thompson, in said justice’s court, and called said Phillips in warranty, who for answer admits having the hearse sequestered, and sets up title thereto by purchase from one J. M. Winslow.

Judgment was rendered in favor of plaintiffs against the defendant for $700, and in favor of the latter against the warrantor for the same amount, reserving to defendant and warrantor the right to satisfy this judgment by delivering the hearse to nlaiiitiff, and reserving to plaintiff his right of action for damages.

Defendant and warrantor appeal, and in their answer plaintiffs ask that the judgment be amended by striking out that part reserving- to the defendant and warrantor the right of satisfying the judgment by delivery of the hearse.

The material facts are the following: Winslow, an undertaker, placed the hearse in the shop of Bleakley & Thompson for repairs. 'While there he gave an order on them to deliver it to and hold for account of plaintiffs, on their paying the charges. Bleakley & Thompson gave plaintiffs a receipt for it. Shortly afterwards, William Phillips instituted suit for it iu the Second Justice’s Court against Bleakley & Thompson, and caused it to he sequestered and taken into possession by the constable. Three days thereafter the suit was discontinued by Phillips. Plaintiffs then obtained an order from Bleakley & Thompson oh the constable for the hearse. . This order was presented to both the constable and Phillips without success. The latter, in support of his claim, introduced in evidence a notarial act of sale (dated anterior to the sale to plaintiffs), from Winslow to himself, of “ the contents and stock in trade of the stables and undertaker’s establishment, now •carried on by said Jobu M. Winslow at No. 101 Rampart street,” consisting of horses, vehicles, harness, coffins, lumber, furniture, fixtures, good will, cistern, etc., of said establishment, including, we may consider proven, the hearse in question. But it is shown to our satisfaction, as it was to that of the district judge, that if this was intended as a sale, no legal delivery was made, for the vendor continued the business at the same place as before, resorting to the formality of sending some of the property, described in the notarial act, to the stables of the alleged or pretended vendee in another part of tho city, •and bringing them back again to be used by himself, and hence no ■sale as to third persons was effected. The bond of release, set up by the constable, was executed several days after .the suit was dismissed in the justice’s court, and is totally without legal effect. The delivery by him to Phillips was consequently not a legal delivery, and having taken official possession of the hearse, he was responsible for it to the owner. A constable not being vested with judicial powers, has no authority to take property from one party and deliver it to another upon his own motion. He is but the ministerial officer of the court, by whose orders he must bo controlled in his official acts.

Tho judge a quo was right in giving judgment against the constable for the value of the hearse taken into his possession by virtue of the writ of sequestration, but erred in giving him the right to satisfy the judgment by returning the property, as plaintiff sued only for its value, exercising the choice of two actions.

It is therefore ordered that the judgment appealed from be amended by striking out that part reserving to defendant and warrantor the right of said judgment, by delivering to plaintiff the hearse referred to in the petition, and that in other respects said judgment be affirmed with costs


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 2308.
    M. W. Dean v. Henry Frellsen.
    A party -who brings suit for tho damages resulting from the non-fulfillment of an obligation on tlio part of the other party, must show under the general issue that he has complied ivith all the conditions imposed upon himself by the obligation, beforo he can be heard to urge the acts of violation of the obligation by the other party as a reason for not putting him'in default.
    APPEAL from the Seventh District Court, parish of Orleans.

      Col-lens, J. Frederick M. Goodrich and George Jj. Bright, for plaintiff and appellant.
    P. II. Morgan and H. G. Morgan, for defendant and appellee.
   Taliaferro, J.

The plaintiff sues for $23,901 50 as damages arising from the alleged non-fulfillment on the part of the defendant of the following obligation: “We, the undersigned, Henry Frellsen, on tho first part, and M. W. Dean and J. 0. Pearce, on the second, hereby acknowledge to have made the following agreement: Henry Frellsen sells to M. W. Dean and J. 0. Pearce all his claims against Govy-Iloocl, and agrees to subrógate them to all his judgment and mortgage-rights for the consideration of thirty-three thousand dollars ($33,000),. which amount M. W. Dean and J. O. Pearce hereby promise to pay toll. Erellsen as follows, viz: Ten thousand dollars within sixty days; the balance of twenty-three thousand dollars in two yearly installments, bearing eight per cent, interest per annum from date, and they agree to secure the above imyments to the satisfaction of General Edward Sparrow. It is mutually agreed that the amount due to Govy Hood, out of tile proceeds of judicial sale of the G. G. Willson planta — ' tion to II. Frellsen, shall be credited on the above judgment against-Hood. H. ERELLSEN.

New Orleans, August 25, 18G8.'’

This obligation the plaintiff alleges the defendant failed to comply with, to his detriment and injury, and he prays judgment in damages-against the defendant as before stated.

The answer is a general denial. The defendant admits that having-judgment against Govy Hood, of the parish of Carroll, for a large sum of money, he had caused execution to issue thereon, and that the-property of Hood was seized to satisfy the judgment; that while the-execution was in the hands of the sheriff, did agree to transfer his rights against Hood to Dean and Pearce, on condition that within sixty days from the twenty-fifth of August, 1868, they paid him ten thousand dollars in cash, and secure the payment of the remainder in. two equal annual installments, the said Dean and Pearce to secure all these payments according to agreement to the satisfaction of Edward. Sparrow, the defendant’s attorney, in the parish of Carroll. The defendant avers that the plaintiff and Pearce having .entirely failed on. their part to comply with the conditions precedent to his obligation to tfansier, he was released, and is in no manner bound to the plaintiff for anything.

The defendant had judgment in his favor, and the plaintiff appealed.. The plaintiff contends, and aimed to show that the defendant, by-transferring his claims to Hood, under an agreement with him, was-guilty of an active violation of the contract on his part, which rendered a putting in default by the plaintiff unnecessary.

All the evidence adduced fails to convince us, as it failed to convince the judge a quo, that the plaintiff has succeeded in the effort. He certainly failed to comply on his own part, and he has shown no-satisfactory reason why it became unnecessary for him to put the-defendant in default.

It is therefore ordered, adjudged and decreed that the judgment off the district court be affirmed with costs. •


author: Howell, J. ' Taliaferro, J.

text:
    No. 2733.
    E. Villerte v. B. Butman.
    It is not necessary for tlie plaintiff, in answer to the plea of domicile, to show that the* defendant lias changed liis domicile from one parish to another. It is sufficient if lie-shows that the defendant has a domicile in the parish where suit is brought. If the defendant, by his own acts, has rendered the place of his real domicile equivocal and uncertain, the creditor may, on showing the fact, proceed against him in either parish, at his option.
    APPEAL from the Sixth Judicial District Court, parish of Tangipahoa.

      'Ellis, J. Muse (& Philips, for plaintiff and appellant.

      T. <& J. Ellis, for defendant and appellee.
   Howell, J.

The defendant having been sued as ’a resident of the parish of Tangipahoa, excepted to the jurisdiction of the court, claiming- his domicile in the 'parish of St. Tammany. The exception was maintained and plaintiff appealed.

The evidence sustains the judgment of the court a qua. It is shown that the defendant owns a residence in Mandeville, parish of St. Tammany, where he has resided continuously for ton or twelve years, his family never leaving there. He has been engaged in business in St. Helena, now Tangipahoa, since the first or second year of the war. His largest business establishment is in Clinton, East Feliciana, and he is a silent partner in a business in St. Tammany. He gives his personal attention to the business in Tangipahoa, but it appears that he has always retained his domicile in St. Tammany, where he established a home, and no intention is shown of ever changing that domicile. It is true he voted at Tangipahoa in the fall of 1865, but he says that he-expressly inquired if doing so would cause him to lose his citizenship in St. Tammany, and was answered, no. During the last year he was solicited by the citizens to accept the offices of justice of the peace and mayor of Mandeville, which he had held about two years before, and served as a juror in St. Tammany at the last term of the district court, prior to the trial of this suit.

We are disposed to rely somewhat upon the district judge’s estimate of the testimony on the question of domicile in this case, as, to say the most in behalf of plaintiff, it is conflicting and confused

Judgment affirmed.

On Rehearing.

' Taliaferro, J.

The substance of the evidence we take to be this : Butman, the defendant, has resided for a number of years in the town of Mandeville, in the parish of St. Tammany, where his family has long been permanently domiciled. He was president of the police jury of that parish and mayor and justice of the peace in the town of ■ Mandeville, but he had been functus officio in both cases for two years before this suit was brought. The town of Mandeville is shown to be more of a watering place or place of resort in the summer season than a business place. The defendant, as a witness, says: “It has been about three years since I had a business establishment in my own name in the parish of St. Tammany.”

The sheriff of tho parish of Tangipahoa says the defendant “ has been living, eating, drinking, sleeping and carrying on business in this place (Amite City) and Tangipahoa for the last three years. His residence has been continuous for the last sis months.”

The defendant, in his testimony, says: “I have three business establishments in this State, one in this place (Amite City), one in the town of Tangipahoa, one in East Feliciana; also, am a silent partner in a business in the parish of St. Tammany. I have been engaged in business in the parish of St. Helena, now Tangipahoa, since the first or second, year of the war, and I have kept up continuously a business over since in this parish. I regard that my principal business establishment, that is the greatest amount of capital that I have invested, is in Clinton, parish of East Feliciana, in the coffeehouse business. I spend the most of my time at this place for the present.” He states that in 1865 he voted in St. Helena, now Tangipahoa, and that he served as a juryman in the parish of St. Tammany in 1869. Here, then, is the case of a man who has a family that has lived constantly in the town of Mandeville ten or twelve years, but who is carrying on no business there, it not being a place of trade or business. On the other hand he has been carrying on business at other places for the last seven or eight years, residing continuously in the parish of St. Helena, now Tangipahoa, for three years, being absent from there during that period for not more than ten clays at a time, his principal business establishment having been, during three years, in that parish, at a distance of one hundred miles from Mandeville. We find him voting in St. Helena and afterwards acting as a juror in St. Tammany. We see that he has two places of business in Tangipahoa and one in ■Clinton, and that he is a silent partner in a fourth concern in Covington. The wife, not separated in bed and board from her husband, can have no other domicile than that of her husband; but it by no means follows that the defendant’s domicile must necessarily be in St. Tammany because his wife resides in that parish and has never resided in Tangipahoa. “The principal establishment is that in which a person makes his habitual residence; if he resides alternately in several places and nearly as much in one as in another, and has not declared his intention in the manner hereinafter prescribed, any one of the said places where he resides may he considered as his principal establishment, at the option of the persons whose interests are thereby affected.” C. 0. 38 [42].

It is well established that the defendant resides more in the parish of Tangipahoa than he d oes in the parish of St. Tammany. He has made no written declaration declaring which is the parish of his domicile. Where such a state of facts is presented, as we find in this case, tho question is not whether the defendant has changed his domicile from St. Tammany to Tangipahoa, but rather where is his domicile? It is not for the plaintiff to show, according to article 43 [45] Civil Code, from circumstances, that the defendant has changed his domicile at all. It is sufficient, for his purpose, to show, according to article 38 [42], that tho defendant resides as much in one of these parishes as the other. He shows, according to that article, that the defendant’s habitual residence is in Tangipahoa and that his principal establishment is in that parish. The defendant has not shown by tho public declaration required of him which is the place of his domicile-By his own acts he has rendered the place of his real domicile equivocal and uncertain, and failing to remove the doubt by a formal recorded act of notice to the world, his creditor thereby acquires the right of suing him in either parish.

A review of the evidence induces us to conclude that our former judgment should be set aside.

It is therefore ordered that the judgment first rendered in this case be annulled; and it is now ordered that the exception be overruled and the case remanded to the court of the first instance to be proceeded with according to law, the defendant and appellee paying costs, of this appeal.

Justices Howell and Wylv adhere to the former opinion,


author: Howe, J.

text:
    No. 3225.
    Glasscock & Moore v. William Wells.
    A combination of parties during tho late war, and after tho city of Uow Orleans had been-captured by tho United States forces, to carry on trade and commerce between said city and the surrounding country, outside of the United States military lines, was illegal. Tho courts will not, therefore, give effect to or enforce demands or obligations growing out o£ such illicit transactions.
    APPEAL from Sixth Judicial District Court, parish of Livingston.

      JEllis, J. T. & J. JEllis, for plaintiffs and appellees.

      11. JET. Man- and Julius JE. Wilson, for defendant and appellant.
    This case was tried by a jury in tho court below.
   Howe, J.

This was an action to recover $7828 20, alleged to be duo-for cotton sold and delivered in 1863. The answer was a general denial, and a plea in reconvention for $15,871. The cause was tried by a jury,, who rendered a verdict in favor of plaintiffs for $3500, and from a. judgment rendered thereon tho defendant has appealed.

The principal point made in this court by the appellant is that the transactions of the parties hereto, out of which the claim arose, were illicit, constituting an unlawful combination on their part to run goods from New Orleans to Madison ville and other places outside the military lines of the United States forces, and to run cotton into New Orleans from such outside points — an agreement for blockade running, inward and outward, the profits on the cotton, the inward cargoes, to belong to one party, and the profits on the goods, the outward cargoes, to belong to the other party.

We are satisfied from the evidence that this position of defendant is 'Correct, and that neither party to this litigation can recover upon the cause of action set up. The fact that both parties resided on the same side of the lines can not change our conclusion, which is, not that the parties were enemies and could not contract with each other, but that, having power to contract, they made an unlawful agreement. 22 An. 216. An agreement the fruits of which wc will not undertake to divide.

It is therefore ordered that the judgment appealed from be avoided and reversed, and the verdict set aside. It is further ordered that there be judgment in favor of defendant, with costs

Rehearing refused.


author: Wyly, J.

text:
    No. 2364.
    Annie Doll Rice v. Henry Rice, her Husband.
    Jh a suit by tlio wife íbr a separation from bed and board, coupled wifcli a demand for a moneyed judgment, founded on tlio allegation that tlio husband bad received, and converted to his own use certain funds which she had inherited from the estate of her father and mother, the marriage contract showed that from the date of the marriage the wife-retained the administration of her separate estate, and the evidence showed that the funds derived from the succession of her father and mother had been invested in certain property in her name and for her benefit. Held — That under this state of facts, she was not entitled to a moneyed judgment against her husband for moneys alleged tí» have Teen received Ty Mm.
    APPEAL from the Second Judicial District Court, parish of Jefferson.
    Pardee, J. Cotton <& Levy, for plaintiff and appellant.

      A. Casabai, for defendant and appellee.
   Wyly, J.

The plaintiff sues for separation from bed and board, and for judgment against her husband for $25,000, for paraphernal funds which she inherited from the successions of her father and mother, :and which sum of money she alleges has been used and appropriated by the said husband.

The court gave judgment for separation from bed and hoard, but rejected her demand for a money judgment, on the ground that by the marriage contract there was no community of acquets and gains, that •■she retained the administration of her separate property, and that the funds derived from the successions of her father and mother were ap;plied to tlie purchase and improvement of certain property, in the name and for the benefit of the plaintiff, and that the defendant never •used or appropriated her said funds as alleged. Prom this judgment •the plaintiff appeals.

The grounds stated by the court for rejecting the money demand is ’sustained by the evidence, and there is no controversy as to the correctness of the judgment of separation from bed and board.

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


author: IIowe, J. Howe, J.

text:
    No. 2262.
    Gadanne Casanave v. Placide J. Spear et als.
    -A possessor of real property under a title at probate sale, applied for a writ of injunction, against tlie heirs who claim the same, on the allegation that he was the owner. On trial of tito motion to dissolve the injunction, it was shown that all the formalities had not been obsorved by the administrator in making the sale of the property, and that the purchaser was not, therefore, in such a case entitled to the writ of injunction.
    APPEAL from tlie Fourth District Court, parish of Orleans.
    TMard, J. JE. JI. MoCaléb, for plaintiff and appellant.

      Oliarles Logue, for •defendants and appellees.
   IIowe, J.

This is a suit which is apparently petitory in its character. 'The plaintiff, alleging that he acquired the property in dispute by probate sale in Iho succession of Mathildo Durel, and has been owner and possessor of it for upwards of a year, avers that August Cheval and Leonide Cheval are about to offer the same for sale, through the -agency of Placide J. Spear, auctioneer, in violation of petitioner’s right of ownership. Ho prayed for an injunction to restrain these parties from attempting to sell the property, or to take possession .¡thereof, and from disturbing the plaintiff in the quiet ownership thereof; and prayed to be declared by judgment the true and lawful owner of said property.

The Chevals answered by a general denial, and the averment that -they wore the lawful heirs of Mathildo Durel, and had been put in possession of her succession, and prayed for a dissolution of the injunction granted with damages, etc., and to be quieted in their possession of the lot in dispute.

There was judgment dissolving the injunction and “reserving plaintiff’s rights to sue in the Second District Court,” and the plaintiff alone appealed. The only question, therefore, before us, is the propriety of the decree dissolving the injunction.

The suit is rather anomalous. The plaintiff alleges himself to be ■in possession of the lot in question, and the evidence shows he has been so for more than ten years, paying tases and receiving- rents. His right to bring a petitory action might well be doubted. Again, ike asks no damages as for slander of title, or for any other reason, and it is questionable if an injunction should issue to restrain such acts a» he details. But taking his suit as petitory (C. P. 54), since he claims the ownership, he fails on the merits to make out a case.

The Chevals appear as heirs of Mathilde Durel, placed in possession of the property of her succession. He does not show that the title of the succession has been legally divested. It appears that his father, P. Casanave, applied to be appointed administrator of Mathilde Durel, and his application was granted, upon his giving bond. He never gave bond, and no letters were ever issued to him. A sale of tbe property being directed to be made in the same order, it was sold, and the administratpr bought it, took possession of it, and paid the price for it, for the plaintiff, his son. We do not think the court a qua.evved in dissolving an injunction sued out by a plaintiff whose title exhibits, such grave defects.

Judgment affirmed.

On Application por Rehearing.

Howe, J.

It now appears that Pierre Casanave gave a bond. It was not copied in the record, and the assertion in the brief of appellees that he had never given one was not contradicted. But a copy of the bond was attached to the record by consent, in such way that it was overlooked. We are not disposed, however, to change our decree.. The supposed want of a bond was but one of the defects referred to.

The prescriptions of five and ten years pleaded by plaintiff, do not apply. The former is intended to cure informalities, and the latter is-based on good faith. ,

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 2359.
    Eugene Gaudoz v. Miss Marie Louise Laure Blanque.
    Before executory process can. be issued on notes exemted by an agent, authentic evidence of the agency must be shown.
    APPEAL from thp Seventh District Court, parish of Orleans.

      Oollens, J. Paul P. Paresche, for plaintiff and .appellee.

      Pdmonct Meunier, for defendant and appellant.
   Ludeling, C. J.

This is an appeal from an order of seizure and sale. The only question for decision is, was there sufficient authentic evidence to authorize the fiat? We think not. The act of mortgage and notes purport to be executed by Charles de Hault de Lassus as-agent of Miss Blanque. There is no proof of this agency in the record'. 12 R. 238, Dosson, curator v. Sanders; 1 R. 407; 2 An. 491.

It is therefore adjudged that the order of seizure and sale be annulled, and that the appellee pay costs of this appeal.


author: Taliaeerro, J.

text:
    No. 3382.
    The New Orleans, Mobile and Chattanooga Railroad Company v. Camille Zeringue.
    In case of a railroad company that bas obtained a right of way through the domain of the State, and the authority is given the company to force the alienation of such private-property as may lie on the line or route of the road, and is required for the uses and location thereof, a scrupulous regard to the ascertainment of a just and full valuation of the property to bo taken from the owner, and the compensation to bo givon him, must be-observed. If, therefore, as in the present case, one set of commissioners have made a report of the value of the property, which was set aside by the judge a quo, at the request-of the company, and another has been appointed, who, after taking further testimony, have made a second report, reducing the value of the property to bo taken below one-half that placed upon it by the first sot of commissioners, which latter estimate is approved by the judge cc quo, the Supreme Court will, on appeal, in the exercise of their discretionary powers in such cases, remand the cause to the court of the first instance, with instructions that a new commission be appointed, and the case bo in other respects proceeded with according to law.
    APPEAL from the Second Judicial District Court, parish of Jefferson.

      Pardee, J. John H. llsley, Jr., and Fellows & Mills, for plaintiffs and appellees.

      H. B. Ogden and F. Bermudes, for defendant and appellant.
   Taliaeerro, J.

The plaintiffs, under the act of the Legislature of this State, approved August 19, 1868, entitled “An act relative to the New Orleans, Mobile and Chattanooga Railroad Company, a corporation of the State of Alabama, and authorizing and empowering said company to exercise and enjoy its corporate powers and franchises in the State of Louisiana,” filed a petition in May, 1870, in the District. Court of the Second Judicial District, sitting in and for the parish of Jefferson, setting forth that it is absolutely and essentially necessary for the company to obtain, as auxiliary and ancillary in the prosecution of their work, the quantity pf one hundred and ninety-two acres-, of land, constituting a part of the plantation of the defendant, lying on the right bank of the Mississippi river, about-miles above the* city of New Orleans. That the railroad now being built under theautliority of the State of Louisiana, granted by the act referred to, is-to traverse and pass through the plantation of the defendant, and that, for the purjioses of wharves, depots, turnouts and other purposes, the* specified quantity of land is needed; that the company have used in vain all amicable means to purchase at a fair and reasonable price from the defendant the quantity of land so required, an accurate survey of which they had made, and a diagram of which was filed with their petition. The petition closes with the prayer that the defendant have due notice, and that, contradictorily with the petitioners, the court render an order, in conformity with the provisions of the fifth-section of the act referred to, appointing three competent and disinterested freeholders to ascertain and appraise the compensation to be made to the defendant for that portion of his land which it is necessary to expropriate for the purposes expressed.

The preliminary notices having been given, the judge of the district •court rendered an order appointing three freeholders as commissioners, for the purposes expressed in the fifth, sixth and seventh sections of the ■act granting franchises to the company within the State of Louisiana. The commissioners thus appointed were duly sworn, and proceeded to the discharge of their duties. They met on the nineteenth, twenty-fourth and thirty-first days of May, 1870, and received the testimony •of a number of witnesses, introduced by the parties, relative to the ■question of compensation. On the second ■ June they made out their report. Two of the three agreed upon the sum of $50,000 ; the other fixed the compensation at $37,000. It seems that on the presentation •of this report, the court, at the instance of the plaintiffs’ counsel, dismissed the proceedings without prejudicing the plaintiffs’ right to renew them. They were shortly afterwards renewed. Three other •commissioners wore appointed, and met in pursuance of the order rendered. A mass of testimony was again taken; many of the witnesses who were previously called were re-examined, and the testimony taken before the first set of commissioners was introduced in evidence before ■their successors. The result was a report fixing the value of the •compensation to the defendant at $18,000.

An opposition was filed on the part of the defendant to the confirmation of this report, and afterwards an amended opposition was presented. Various grounds are set up in these oppositions. It is alleged that the act of August 19, 1868, is unconstitutional, as being .in violation of articles 73 and 94, State Constitution. Many reasons •are offered to show that the damages and loss to the defendant by the appropriation of so large a portion of his front lands, would greatly ■exceed the estimated compensation; that the commissioners erred in their appreciation of the evidence given before them, and that since the testimony was closed before the Board of Commissioners, the opponent had discovered new and important evidence, not within his means of knowing previously. A formal affidavit in support of the last ground of opposition was filed. The opponent prayed that the •case might be reopened before the same or other commissioners to be •appointed by the court.

Judgment was rendered overruling the opposition and confirming the report of the commissioners, and the defendant appealed.

After examining attentively the mass of evidence appearing m tno record before us, we are not satisfied that the judge a quo was correct in rendering the judgment appealed from. The discrepancy between the estimates of the two sets of commissioners, all of whom we conclude were well selected with reference to their capacity for the business, is very striking. In such a case we think it probable there is error, and in matters of forced alienations there should be scrupulous regard to the ascertainment of a just and full valuation of the property to be taken from the owner, and the compensation to be ■.made to him, alter a due consideration of all the elements entering .into such estimates. We think the subject should undergo further •examination.

To this end, it is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that this case be remanded to the court of the first instance, with instructions to submit it again to throe commissioners to be appointed by him, in order that the same may be reopened, and ■the parties allowed to introduce further evidence, and the case to be ■further proceeded with according,to law; the plaintiffs and appellees paying costs of this appeal.


text:
    Nos. 3345 and 2225.
    A. B. James & Co. v. Fellowes & Co.—Joseph Hernandez, Surety, etc.
    ‘The voluntary payment of a judgment or a portion thereof, destroys the right of appeal.
    If it appear that the judgment appealed from has been declared an absolute nullity by the court a qua on account of its having been renderod and signed in vacation, the appeal ■will be dismissed ex offido. 21 An. 306.
    APPEAL from the Sixth District Court, parish of Orleans.

      Cooley, J. P. H. Morgan and W. H. Hunt, for plaintiffs and appellants-

      ■Cooley <& Phillips and C. Pemiss, for defendants and appellees.
   Howe, J.

This cause was remanded to the lower court on the twenty-third January, 1871, to ascertain as matter of fact whether the appellant, Joseph Hernandez, had, prior to taking his appeal, acquiesced in the judgment by paying it in whole or in part.

It now comes back to us with the evidence on this question, and from the testimony there is no doubt that the appellant did voluntarily pay the sum of $7000 on the judgment some time before he took his appeal. The fact that the party for whom he had been surety furnished him the means to make this payment, can not change this conclusion. But his counsel now contend that the judgment appealed from was an absolute nullity, and has been so declared, because it was rendered and signed in vacation, and therefore that acquiescence in it was impossible.

The judgment having been declared an absolute nullity, because rendered and signed in vacation, it becomes our duty to dismiss the appeal therefrom, ex officio, on the authority of Culver v. Leovy, 21 An. 306.

We have two records before us in this matter; the one No. 2225, in which J. Hernandez is appellant from the judgment on which the payment was made; the other No. 3345, in which the plaintiffs, as appellants from the later decision of the judge a quo upon the question of payment, bring up the testimony on that point.

In the case No. 3345, it is ordered that the judgment appealed from by plaintiffs be avoided and annulled; and in ease No. 2225, it is ordered that the appeal taken by Joseph Hernandez be dismissed; and it is further ordered that he pay the costs of both appeals»


text:
    No. 2371.
    Mrs. George Wailes v. The Citizens’ Bank of Louisiana.
    Tbe mío who, in payment or part payment of her judgment against her husband, received a transfer of a claim which he alleges to bo due him, acquires only such rights thereto as the husband had. A debtor who allows his property to be sold under execution and the proceeds to be applied in satisfaction of the writ, is thereby concluded from his right of action to recover the proceeds of the sale on the ground that the consideration of the debt, to pay which the property was sold, was illegal. Therefore, in this case, the wife being the transferee of the husband’s claim to the proceeds of the sale of his property to pay a debt against him, on the ground that the consideration of the debt was the sale of slaves: Held — That, inasmuch as the husband had made no opposition to the sale and application of the proceeds to the payment of his debt, he was barred from afterward setting up a claim thereto, and the wife, being his transferee, could only exercise such rights as her transferrer had conferred upon her, and that she could not, therefore, recover.
    APPEAL from the Fourth District Court, parish of Orleans.

      Théard, J. Pilleul, for plaintiff and appellant.

      Armand Pitot, for defendants and appellees.
   Wyly, J.

In part payment of her judgment against her husband, George Wailes, the plaintiff received the transfer of the claim on which this suit is founded.

In 1853 the’ Citizens’ Bank sold a sugar plantation and fifty-one slaves in the parish of St. Charles to Charles Roussel and others for $80,000. The purchasers furnished a stock note, with the ordinary obligations assumed by the stockholders of the bank, for the sum of $32,300, and for the balance of the price, amounting to $47,700, they furnished a number of notes which have since been paid.

In 1859 these purchasers sold this property to Parker Campbell, wdio assumed the stock note due the bank, with all the accessory obligations, the note then being reduced to $23,240.

In 1860 Campbell sold the plantation and slaves and bank stock to George Wailes, the husband of the plaintiff, who assumed the payment of said stock note, with the same obligations, and received his vendor’s subrogation to all his rights against the previous vendors, the said stock note being then reduced to $21,850.

In 1867 the bank foreclosed its mortgage against the said George Wailes and purchased the mortgaged property (except the slaves,, which were emancipated), crediting its writ of sale with the price at which the oroperty was adjudicated to it.

In November, 1868, the plaintiff, the transferee of her husband, brought this suit to recover the proceeds of the sale of his plantation from the bank, who purchased it and retained the said proceeds in satisfaction of the balance due on said writ, on the ground that at the time the order of seizure and sale was .executed against said property, the said debt was not valid and obligatory in consequence of the emancipation of slaves, the greater part of the consideration of the note on which the mortgage was foreclosed being for slaves, and the bank, the purchaser, ought not to retain the price of adjudication, to wit: $30,000, in discharge of the writ under which the sale was made, because of the said invalidity of the debt on which the executory proceeding was founded.

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

It seems very clear that the plaintiff has no greater rights than ner husband, her transferrer, had. And it is equally clear that a debtor ■can not recover the proceeds of the sale of his property after they have been applied to the satisfaction of the writ under which it was sold, because he has a good defense to the suit or because of the invalidity of the consideration of the note on which the' judgment was founded, there having been no opposition to the sale.

Having acquiesced in the execution of a judgment the debtor will not be heard claiming its invalidity. The husband of the plaintiff having made no opposition to the enforcement of the mortgage and the application of the proceeds of the sale to the writ, had no action for the repetition of the price; the writ of sale having been discharged, it is too late to inquire into the validity of the consideration of the note on which the order of seizure and sale was granted.

The plaintiff suing as the transferee of her husband can only assert such rights as she received in the transfer, and as he had no right of action against the defendant, she acquired none,

Let the judgment appealed from be affirmed, with costs.

Rehearing refused.


text:
    No. 3007.
    State of Louisiana v. John Evans.
    The judgment of the court helow in a criminal case will not ho reversed on appeal, if it appear that the judge a quo has assessed a smaller fine on the accused than he was authorized "by law to impose.
    APPEAL from the Sixth Judicial District Court, parish of Tangipahoa.

      Bilis, J. Bolivar Bdwards, District Attorney, for the State.

      Thomas Green Davidson, for defendant and appellant.
   Howe, J.

We.have no jurisdiction in this case, which is criminal in its character, save of questions of law. Constitution, art. 74.

The only question of law presented, in the opinion of this court, is. by the point raised by counsel that the fine imposed is too small. The sum embezzled was found to be $383 05, and under the statute the fine might have been imposed to the extent of double this sum, or $766 10., The judge a quo, perhaps by error of addition, made the fine $666 10. We do not think the defendant has any just cause to complain that he has been saddled with a smaller fine than might legally have been imposed.

Judgment affirmed.

Rehearing refused.


author: Howell, J.

text:
    No. 753.
    Succession of J. Sosthene Mouton.
    A judgment homologating an administrator’s account so far as not opposed, becomes final if not appealed from within the delays allowed by law. If, therefore, an. appeal has been taken from a judgment rendered on the items of the account which have been opposed, after the time has elapsed for taking an appeal from the judgment on the items not opposed, the appellate court cannot inquire into the correctness of the judgment on the items not opposed, because the judgment has become final,
    APPEAL from tlie Parish Court, of Lafayette.

      Moss, Parish Judge. Felix Yoorhies, for estate.

      Me Miañe & Merry, for opponent and appellant.
   Howell, J.

On the twenty-seventh of November, 1867, the administrator of this succession filed a tableau of distribution, with an acceptance of service by certain parties entitled to special notice, and caused publication to be made. On the twenty-eighth of December, following, the widow opposed its homologation, on the grounds that she was charged with receiving $1600 more than she had actually received, and had not been allowed the sum of $3000, amount of purchases by her husband at the sale of her mother’s estate, and $5000, being tlie half of individual debts of the decedent, due by him prior to, and paid after marriage.

On the seventh of March, 1868, the tableau was homologated, so far' as not opposed. From the judgment rendered on the twelfth of July, 1870, rejecting the opposition of the widow, she and J. Edmond Mouton, have appealed. In this court they have filed a plea of prescription to every claim, account and note on the tableau, except those in favor of the widow. This plea can not avail, as the judgment of •seventh March, 1868, homologating the tableau as to those items, and the whole tableau so far as not opposed, is not before us for revision.

The appellants, in their brief, complain only of this judgment of homologation, but it is manifest that we can not inquire into its correctness, on an appeal, taken more than two jmars alter its rendition from a judgment dismissing a specific opposition, not embraced in or •connected with the said judgment of homologation.

The alleged fact that one of the appellants attained the age of majority after the filing, but before the homologation of the tableau, can not give him the right to oppose the tableau after it is homologated, or to have the judgment of homologation not appealed from revised on this appeal, nor can the clause of the prayer in the opposition of the widow, “that the homologation of the said tableau of J. Sostheno Mouton be suspended until the decision of the court,” give any such rights to the appellants, or either of them. That judgment, so far as this controversy is concerned, is final. The parties aggrieved by it might have applied for a new trial, taken an appeal from it, or instituted an action to annul it if the causes of complaint were sufficient.

The rulings of the judge a qxio refusing to entertain the amended opposition of the widow, and the opposition of J. Edmond Mouton, seem to us to be entirely correct, and we can find no good reason for disturbing the judgment appealed from.

' Judgment affirmed.


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    No. 746.
    Martial Sorrel v. Denis Carlin, et al.
    A party who brings suit against another for cutting and removing timber from his land must show — first, that he is the owner or proprietor of the land, and — secondly, that a certain specific number of trees have boon taken from his promises, failing in which he can not bo permitted to recover.
    APPEAL from the Third Judicial District Court, parish of St. Mary.

      Train, J. Oliver ds Dumarirait, and Deblane (& Perry, for plaintiff and appellee.

      Tuclcer & Davis, and li. Pi. McMillan, for defendants and appellants.
   Taliaferro, J.

The defendants are charged by plaintiff with having felled upon his land four hundred and thirty-seven cypress trees, and removed them without liis permission ; that defendants have by their gross violation of his rights, in cutting and removing this timber, caused him damages to the amount of five thousand dollars. He caused the timber to be sequestered, and prays to be decreed the owner of it, and for judgment in solido against the defendants for five thousand dollars, as damages for their illegal and wrongful acts. The answer is a general denial, and the defendants set up a reconventional demand of five thousand dollars as damages caused them by plaintiff’s seizing and taking their property out of their possession, and for being deprived of the use of it, and having to incur expense in the employment of counsel to protect their rights, etc. Judgment was rendered in favor of the plaintiff, sustaining the sequestration, and decreeing the plaintiff owner of the timber in controversy, rejecting the reeonventional demands of the parties for damages.

This case presents mainly questions of fact. We do not concur with the judge a quo in the view he seems to have taken of the evidence. We do not consider that the plaintiff has made out a case that warrants a judgment in his favor. Assuming that he has shown that some’ of the trees were taken from his land, the plaintiff sought to establish that the 'defendants owned no lands in the vicinity, from whence the timber was obtained, and thereby to establish that they were trespassers against somebody, and that against them, the maxim contra spoliatorem' omnia prcesumuntur might be invoked. The evidence was properly rejected. If the defendants owned no lands from which the trees were taken and they were obtained from lands belonging to persons other thau the plaintiff, he would have no right to reclaim them. It was for him to make it clear beyond a reasonable doubt that all the trees, or some specific number of them, were illegally taken from his premises, failing in which the judgment should have been rendered in favor of defendants.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that judgment be, and the same is hereby rendered in favor of the defendants, the plaintiff and appellee paying costs in both courts.


author: Howe, J. Taiuarerro, J.

text:
    No. 752.
    Alexander Latiolais v. Louis V. Mouton.
    The proces verbal of a*survoyor appointed as an expert to determine a boundary line, if not authenticated, is nothing more than a memorandum, and is not therefore admissible in evidence as an authentic document on the trial of an action of boundary.
    APPEAL from the Fifteenth Judicial District Court, parish of Lafayette.

      M. 0. Grow, Judge ad hoc. M. E. Girarcl, for plaintiff and appellee.

      Ed. E. Mouton, for defendant and appellant.
   Howe, J.

This is an action of boundary; to which there is no prescription. 21 An. 673; C. C. 825.

Upon the trial of this case the defendant reserved a bill of exceptions to the reception of a document offered by the plaintiff as a pro ces verbal of the surveyor, appointed as an expert, to determine provisionally a boundary Ene.

In our opinion the objection should have been sustained, and the paper excluded. The surveyor himself was not called. The paper was offered as authentic, to make full proof of itself. In order to do this it should have been made according to the formalities prescribed by article 833 [829J of the Civil Code, and signed by two witnesses called for the purpose; or contain a mention of the causes which prevent them from signing. In the absence of these formalities it is a mere memorandum which might have been produced and referred to by its maker on the witness stand, but which can not make full j>roof of itself. 4 An. 33, 382 ; 5 An. 122; 13 An. 128; C. C. 841, 833.

It is therefore ordered that the judgment appealed from be reversed, and the cause remanded for a new trial, and that appellee pay the costs of appeal.

Taiuarerro, J.

dissenting. The article 841 [835] in pursuance of which the preliminary inspection by the surveyor was made, and his report returned to the court to enable it to determine in what manner the judgment on the question of boundary should be finally rendered, does not require that the return, or report of the surveyor shall be signed by witnesses, or to be clothed with any of the formalities required by the articles 833, 834, 835, 836 and 837, which apply only when the ulterior and final survey and establishment of the boundary is made by measurement and the placing of permanent landmarks, which can only be done after the decree has been rendered, and in conformity with it. The exception I think should have been overruled.


author: Lxjdelino, C. J.

text:
    No. 737.
    James G. Parkerson v. James M. Grundy et al.
    In til© examination of an appeal taken from, an order of seizure and sale the appellate court can only determine wlietlier tlie evidence presented to tlio judge a quo is sufficient to* authorize the fiat.
    APPEAL from the Third Judicial District Court, parish of St. Mary.

      Train, J. J. J. Olivier, for nlaintiff and appellee.

      JD. Oakery, for defendants and appellants.
   Lxjdelino, C. J.

This is an appeal from an order of seizure and sale. It has been settled by repeated decisions that the only question-which can be examined on appeal, in such a case, is, whether or not the evidence before the judge would authorize the fiat.

In the case at bar the axithentic act of mortgage and the note, annexed to the petition, fully authorized the order of seizure and sale.

It is therefore ordered that the judgment be affirmed and that the appellants pay the costs of this appeal.


text:
    No. 743.
    P. J. Pavy v. Elizabeth Escoubas, Administratrix.
    Proving that a debtor paid a sum credited on Ms noto on tlie day and date that the credit is made on the note, is tantamount to proving an acknowledgment of the debt. Parol evidence to establish such credit is, tliereforo, inadmissible after tlie maker of the note lias died and payment is sought to be enforced against his succession. SI An. 300.
    APPEAL from the Eighth Judicial District Court, parish of Calcasieu.

      King, J. George K. Wells, for plaintiff and appellee.

      Louis Leveque, for defendant and appellant.
   Taliaferro, J.

Tlie defendant, in her capacity of administratrix of tho estate of her deceased husband, is sued upon a promissory noto executed by him on the tenth of March, 1862, in favor of Lobit, Charpoutier & Co. or their order for $3183 61, made payable on*’the fifteenth of March, 1863, and stipulating the payment of interest at eight per cent, per annum from maturity until paid. On the fourteenth of April, 1860, the maker of this note mortgaged several tracts of land, tying in the parish of Assumption to secure tho payees of the note, against loss or liability they might incur from advances, acceptances and indorsements to he made by them for the benefit and accommodation of Escouhas, not at any time to exceed the sum of $10,000 on the whole. The act of mortgage declares that it is to inure to the benefit of any future holder of the obligations to he accepted or indorsed by Lobit & Charpentier, contains the pact de non alienando and stipulates the payment by tlie mortgaged’ of attorney’s fees, if any should he incurred in the enforcement of the agreement entered into between the parties. Tlie note sued upon was transferred by the payees to the plaintiff, who brings this action. Two credits are indorsed on the note, one dated July 13, 1866, for $1500, the other dated June 21, 1867, for $872 31.

The defendant filed the plea of prescription, and afterwards an answer containing a general denial. Judgment was rendered in thccourt below in favor of tlie plaintiff for the remainder due on the note, after deducting the credits, with recognition of the mortgage, and decreeing its enforcement against the mortgaged property, and awarding likewise in favor of the plaintiff five per cent, of the amount of the judgment for attorney’s fees.

From this judgment the defendant has appealed.

There are several grounds of defense taken, hut we deem it unnecessary to examine more than one, that of prescription. It is contended on the part of tlie plaintiff that the act of 1858, excluding, in cases of deceased persons, parol evidence to establish an acknowledgment or promise to pay a debt or liability in order to take such debt or liability out of prescription, has no application to this case, inasmuch as tlie evidence introduced was to prove simply the fact that the maker of tlie note paid on it the amounts credited and thus establish an interruption of prescription, and that this is not proving by parol a promise to pay a debt or liability according to the intendment of the act of 1858. When the maker of a note pays a part of its amount we think lie impliedly admits the existence of a debt and his obligation to pay it. Proving, therefore, that a debtor paid a sum credited upon Ms note is, in substance, proving this implied admission or acknowledgment of a debt, and a party is not permitted to prove by parol an acknowledgment of a debt by a person since deceased. We expressed this view in the matter of the succession of Hildebrandt, 21 An. 350, a case presenting the same question that arises in the oné now before us.

Wfe think the exception should have been sustained and judgment given in favor of the defendant.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that there be judgment in favor of the defendant, the plaintiff .and appellee paying costs in both courts.


text:
    No. 744.
    Jean Carrere v. Augustin Labau and J. N. Webster.
    A. principal wno sues his agent for a balance alleged to be due him, and also mates a third party a party to the suit, on the allegation that certain notes which had been purchased hy his agent with funds intrustod to the agent, and by him transferred to said third party, must^show as matter of fact, before he can recover the notes of such third party, that the notes were purchased by the authority of his principal with his funds, and also that the third purchaser of the notes from the agent know fche fact at the time of the transfer.
    APPEAL from tbe Third Judicial District Court, parish of St. Mary.

      Train, J. A. 0. Dumartrait and Frederick Oates, for plaintiff and appellant.

      Tucker & Davis, for defendants and appellees.
   Howe, J.

Tbe plaintiff instituted this action against tbo defendant, Laban, as his agent, claiming from him a balance of $32,608, subject to such credits as tbe ageut might establish. He further alleged that •certain notes in possession of the defendant Webster were his (the plaintiff’s) property, having been purchased by Labau with tbe funds intrusted to Mm by plaintiff, and transferred to Webster in fraud of plaintiff’s rights, and he caused these notes to be sequestered.

There was judgment dismissing the plaintiff’s action, and ho has appealed.

First — The evidence does not establish the plaintiff’s ownership of the sequestered notes. It is not necessary to decide what might be the legal conclusion, if the testimony showed that the defendant Labau purchased the notes with plaintiff’s funds, and then transferred them collusivoly to Webster. It suffices to say that such a state of facts is not proved. The notes were originally the property of Bellocq, Noblom & Co., and were transferred by .them to Webster in payment of a draft drawn in favor of the latter by Labau. It does not appear that tlie funds against which/ Labau drew were the plaintiff’s, and ho therefore has no interest in this suit to contest the validity of. Webster’s title. The court a qua did not err in dismissing the sequestration and the demand as to Webster.

Second — It amply appears, however, from the record, and particularly-from the letters of Labau, that ho was, up to 18G6, the agent of plaintiff) that his account is still unsettled, and that the iilaintiff is entitled, under the former portion of the prayer of the petition, to judgment against the succession of Labau (who has died since the institution of this suit) for a balance of some kind. This branch of the cause should be remanded for more particular proof.

It is therefore ordered that the judgment appealed from, so far as it dismisses the writ of sequestration, and the suit of plaintiff, as against the defendant Webster be affirmed) aud that in so far as it dismisses the action as against the succession of Labau, it be reversed) and that the cause as against the said succession be remanded, to be further proceeded with according to law. Costs of appeal to be paid by the succession.


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    No. 751.
    Succession of Edward Simon, Sr.—Opposition of Abat et als. to Tableau of Distribution and Classification.
    The recording of tlie certificate of tlie notary who drew the act of mortgage, in the office of the recorder of mortgages of the parish whore the property is situated, is not sufficient to give effect to the mortgage as against third persons. C. C. 3336; acts of 1855, !Nb. 274, p. 335.
    A certified copy of the act of mortgage must itself be placed of record in the parish where the property is situated to give it effect. This rule does not apply to the parish of Orleans, the registry of mortgages in this parish being governed by special laws on the subject. Acts of 1855, 2To. 285.
    APPEAL from the Third Judicial District Court, parish of St. Martin..

      F. Monge, attorney at law, Judge ad hoc. Fenlin YoorUes, for ■opponents and appellants.
    Jos. A. Breaux and A. 0. Dumartrait, for appellees.
   Ludeling, C. J.

The administrator of the succession having filed his account and tableaux of distribution, Valcourt Abat and others opposed the claim of Lobit, Charpentier & Co., on the grounds that the mortgage in their favor was never legally registered) that they are not creditors for the amount placed on the tableau, and that the drafts of the deceased were paid by Lobit, Charpentier & Co. in Confederate currency.

There was judgment dismissing the opposition, and the opponents have appealed.

It appears that in 1861, Lobit, Charpentier & Co. made advances to Edward Simon, Sr., and to secure the payment of the sums advanced, said Simon specially mortgaged certain property situated in the parish of St. Martin, by an act passed before Selim Maguer, a notary public in the city of New Orleans, and that in lieu of' the act of mortgage, a certificate of said Selim Magner was registered in the recorder’s office of tho parish of St. Martin, which certificate stated that on the, eighth day of February, 1861, Edward Simon, of the parish of. St. Martin, in this State, had mortgaged in favor of Lobit, Charpentier & Co., of New Orleans, “ a plantation or tract of land situated in the parish of .'St. Martin, at the distance of about two miles from Breaux’s Bridge, containing ten arpeuts in front on the east side of the river Teche, by eighty arpents in depth, bounded above by a tract of land formerly belonging- to Raphael Cormier, and below by a tract formerly belonging to Widow Alexander Guilbeau, which plantation is the same formerly owned by David Rees, and also the other property and slaves fully described and named in said act,” etc. Then follow the names -of the slaves, which the notary certifies were mortgaged, “together with a certain plantation and certain lands fully described in said act of mortgage.” And the notary further certifies what debts the said mortgage was given to secure.

This is the only registry of the mortgage made in the parish where the property mortgaged was situated.

The syndic of Lobit, Charpentier & Co., and the administrator of "the succession, contend that this is a sufficient registry to affect the ¡tights of third persons.

We think otherwise. Article 3342 declares that “conventional mort,-gage is acquired only by consent of the parties; and judicial and legal mortgages only by the effect of a judgment or by operation of law. But these mortgages are only allowed to prejudice third persons when they have been publicly inscribed on the records kept for that purpose, and in the manner hereinafter directed.” Article 3345 declares all mortgages are “required to be recorded in the mauner hereafter provided.” And article 3336 declares that “ to obtain an inscription of a public act, or judgment, the creditor, either in person or by an agent, shall present an authentic copy of the act or judgment to be recorded, to the register of mortgages of the place where the inscription is to be made.” And the statute of 1855, No. 274, section 1, Reclares that “no notarial act, concerning immovable property, shall have any effect against third persons, until the same shall have been recorded in the office of the parish recorder where such immovable is situated,” and section 2 declares “all sales, contracts and judgments which shall not be so recorded shall be utterly null and void, except between the parties thereto,” etc. P. 335. It seems clear, therefore, that the public act creating the conventional mortgage and the judgment from which spring the judicial mortgage, must be registered in the manner indicated by the law maker, in order to affect the rights of third parties. So far as third persons are concerned, it is the registry alone which gives validity to the conventional and judicial mortgages alike. Article 3366 provides the same mode for effecting the inscription of both. If the registry of a certificate of the notary as to the contents of an act of mortgage bo sufficient to affect third persons, why may not a clerk’s certificate as to the substance of a judgment be substituted in lieu of the judgment for registry also?

Mortgages, like privileges, are the creatures of the law, so far as third persons are concerned, and creditors who claim a preference over other creditors must comply strictly with the law, which confers this preference only on condition that its terms are observed. 4 Bob. p. 7, case of Falconer; 21 An. 427; 22 An. 402.

The law relied on by the syndic and administrator, No. 285 of the session acts of 1855, relates only to the parish of Orleans, and is wholly inapplicable to a case like this.

It is therefore ordered and adjudged that the judgment of the lower court, dismissing the opposition, be avoided and reversed, and that there be judgment amending the tableau in such a manner as to give a preference to the judicial mortgage of the opponents over the claim ©f Lobit, Charpeutier & Co., and that in other respects the judgment be affirmed. It is further ordered that the costs of this appeal be paid by the appellees.


text:
    No. 3429.
    John M. Hoyle v. New Orleans City Railroad Company.
    A railroad company in tlie city of IsTew Orleans which has been authorized by the city to change the track of its railroad, can not be enjoined from so doing by an individual property holder situated on the line of the road, on the ground that such change would likely prove detrimental to the public health, and would therefore work an irreparable injury to him.
    A party who discloses no interest whatever in an ordinance of tlie Common Council, can not be permitted to raise the question of its validity with another party who has acquired a right under the ordinance.
    APPEAL from tlie Eigbtb District Court, parisb of Orleans.

      Dibble, J. O. T. JBemis, for plaintiff and appellee.

      W. H. Hunt, for defendant and appellant.
   Howe, J.

This case was before this court lately op appeal from a judgment in favor of plaintiff rendered by the Sixth’ District Court of the parish of Orleans. See 23 An. 502. The cause was remanded that it might be transferred to the Eighth District Court. Having been, thus transferred, the judge of the Eighth District Court, following the ’ .©pinion expressed by the judge of the Sixth, rendered another judgment in favor of plaintiff, enjoining- the defendant from constructing a horse railroad track on the edge of the neutral ground in Canal street.

A careful examination of the record fails to disclose any legal reason for this injunction. The. plaintiff has filed no brief ,in this court, and we can only presume that he relies on the following points, which we will notice in the order in which they are set forth in his petition:

It appears that in the middle of the neutral ground in question there is a draining canal; that this draining canal is covered by a platform on which for some years the tracks of the defendant’s railway have been laid; that this canal was cleaned out by the authorities of the city of New Orleans,, and the earth thus excavated thrown out and leveled down on each side in such a way as to form a bank of some fourteen inches in thickness, encroaching- somewhat on the shellroads on either side; that on these banks the defendant proposes to lay its-tracks, removing them from over the canal, under a permission given by an ordinance of the Common Council, dated May 3, 1869, and that these banks of earth will, unless properly provided with ditches, prevent in some measure the flow of surface water from the inner edges-of the shellroads. The plaintiff, as owner of property on Canal street, claims that he has been greatly injured by the announced intention of the defendant thus to remove the tracks, and that the laying thereof on the newly selected lines will work him an irreparable injury, and hence his claim for a perpetual injunction

First — The excavation oí the draining canal, the throwing up of earth on either side upon the neutral ground, and the possible obstruction of drainage of the shellroads were all the work of the city of New Orleans. The defendant had nothing- to do with those acts, and is"in no wise responsible for the real or imaginary consequences of them. The city is not a party to this suit, and it is not necessary, therefore, to decide how far the plaintiff might have a right to interfere with its-administration of the public highways on which he chooses to buy land. It is enough to say that neither the plans nor performances of the defendant have caused or are likely to cause any injury to the plaintiff which can authorize the stringent remedy of injunction as against it.

Second — The plaintiff alleges that the ordinance under which the defendant proposes to shift the lino of its tracks is null and void under the -law of 1867, No. Ill, by which the Common Council was forbidden to pass any ordinance until it should have provided certain sanitary regulations. Acts of 1867, p. 207, We can not determine whether this point is seriously insisted on, or whether it formed any part of the reasons for judgment below. It might bo sufficient to remark that the plaintiff in this record does not show any legal interest in discussing this question with this defendant. It will, we imagine, be time enough to examine the validity of this ordinance when the issue shall be raised by some one on whom the ordinance confers a right, or imposes a duty,, or inflicts a wrong.

Third — The plaintiff attempts to show that the shifting of the defendant’s tracks will necessitate the removal of the platform which covers the canal, and so will cause discomfort and ill health in the vicinage. The testimony is unsatisfactory and conflicting. It is not rendered even prohable that the removal of the tracks will be followed by the removal of the covering of the canal; it is not rendered certain that the uncovering of the canal will be followed by the predicted evils; but, granting that these results will occur, we are'still unaware of any legal obligation on the part of the defendant to the plaintiff requiring it to keep covered a draining canal of the city of New Orleans.

On the whole, wo conclude that the changes of the canal and of the banks on either side are the work of the city of New Orleans, to the discretion of whose municipal authorities such work is properly confided (14 An. 452, 842); that no act of the defendant, whether done or threatened to be done under the permission given to it by the city, so far as this record shows, can be said to inflict a legal injury on the plaintiff, and that the defendant is entitled to judgment.

It is therefore ordered that the judgment appealed from be reversed and the injunction issued herein dissolved, and that there be judgment in favor of defendant, with costs in botli courts.


author: I-Iowe, J.

text:
    No. 750
    Mary Z. Knight, Administratrix, v. E. B. Mentz, Sheriff, et al.
    The act of 1855, lío. 200, p, 254, under which a married woman is authorized to execute a mortgage on her own property by observing the formalities therein, prescribed, docs not abrogate nor do away with the rules laid down in the Civil Code by which sho is authorized, by and with the authorization and consent of her husband, to mortgage her separate-property for a debt which, inures to her separate use and benefit. 15 An. 94; 21 An. 398? 22 An. 457.
    The husband is not incapacitated from testifying that the debt for which his wife gave at mortgage on her separate property inured to her separate and sole advantage.
    APPEAL from the Third Judicial District Court, parisli of St. Mary.

      Train, J. Arthur F. <£ Glay Knobloch, for plaintiff and appellant.

      Gates <& Oaffery, for defendants and appellees.
   I-Iowe, J.

On the twenty-eighth October, 1856, Mrs. Josephine Baskerville executed a mortgage in favor of Henry Knight (now deceased, and whose administratrix is the plaintiff), which was recorded December 19, 1856. It was not reinscribed until the second August, 1867.

On the twentieth June, 1866, Mrs. Baskerville executed another act of mortgage on the same property in favor of Gordon & Castillo, which was recorded on the twenty-seventh June, 1866, and in which she bound lierself to obtain thereto the authorization of her husband. On the twelfth day of July, 1866, the husband, by public act, gave the promised authorization, which act was recorded on the same day.

Oai the third November, 1866, Mrs. Knight, administratrix, obtained judgment on her mortgage debt, and recorded the same on the twenty-eighth November, 1866. Under this judgment she caused the property to be sold and bought it in, retaining the purchase price in part satis faction of her writ.

In October, 1809, the Union Bank, being the holder of three of the notes given to 'Gordon & Castillo, secured by the mortgage of twentieth June, 1866 (which contained the pact of non-alienation), took out ex-ecutory process to collect the same, which the plaintiff, Mrs.. Knight, administratrix, by this action enjoined. The court a qua, after trial, dissolved the injunction, and the plaintiff has appealed.

First — The appellant contends in this court that upon the application for order of seizure and sale the Gordon & Castillo mortgage was not shown to have been recorded in such way as to authorize executory process. Tiiis point was not made by the pleadings in the court below, and we see no reason to reinstate an injunction on such a ground, when by authentic evidence introduced on the trial without- objection, it appears that the mortgage was duly recorded at the date above given, long before the executory process was issued. The familiar rule that an injunction will not he dissolved when it appears that another ought forthwith to issue upon the facts that appear, does not here apply.

Second — The appellant contends that the act of twelfth July, 1866, by which the husband gave his promised authorization to the Gordon & Castillo mortgage, was null and void for want of compliance with the formalities prescribed by article 2272, C. C., in regard to acts of confirmation and ratification. If we concede that the plaintiff can raise this question, and raise it here for the first time, and that the act of the husband is confirmatory and recognitive, and not original in its character, yet an examination of the document fully satisfies us that it fulfills the requirements of the art. 2272 [2252]. It recites the act of mortgage of June 20 in terms which leave no doubt; it contains its substance; mentions the object to be attained, to wit, the authorization ol the husband, and the intention of supplying this defect; the defect is supplied; and then the wife, joining in the execution of the paper, confirms and ratifies. The object of the rules of the Code, that a party shall not he held to ratify an invalid act, unless it appears that he knew with precision what act he was ratifying, and was aware of the defect lie was waiving, and deliberately agreed to waive it, was fully satisfied.

Third — It is contended by the appellant that the Gordon & Castillo mortgage is null and void because not executed with the formalitie0 prescribed by the statute of 1855, No. 200, p. 254. It will be noticed that tlie wife makes no complaint. But if we concede that the question may be raised by the plainfiff, we are still of opinion that it is settled adversely to her views. In rice v. Alexander, 15 An. 94, the subject was fully discussed, and it was decided that this statute did not ¡repeal the rules of the Civil Code under which a wife, with the authorisation of her husband, may mortgage her separate property for a debt which, as in this case, really inures to, her separate benefit. This decision was followed in City National Bank v Barrow, 21 An. 398; and the effect of the statutory proceeding is again noticed in Miller v. Wisner, 22 An. 457. We see no reason to depart from this line of authority.

Fourth — It is urged by appellant that the evidence of Baskerville, the husband, which was received without objection, to prove that the advances made by Gordon & Castillo inured to the separate and sole advantage of his wife, is liable to the charge of interest and partiality, and does not suffice to establish the facts to which he testified. We do not perceive the force of this proposition. No attempt was made to contradict or impeach him. The judge a quo, who saw and heard him, appears to have considered him worthy of belief, and he had no interest in this controversy.

Judgment affirmed.


text:
    No. 748.
    Formesia Nash, Administratrix, etc., v. Thomas R. Muggah.
    A voluntary retrocession of property after tlie action to dissolve tlie sale has been prescribed, has no legal effect on a creditor of the vendee who has acquired a mortgage on the property subsequent to the sale. If, therefore, the vendee has retroceded the property after the action of retrocession is barred by prescription, the vendor takes back the property, • subject to the mortgages which the vendee has placed upon it subsequent to the sale.
    APPEAL from the Third Judicial District Court, parish of St. Mary.

      Train, J. D. Gaffertj, for plaintiff and appellant.

      Frederick Gates, for defendant and appellee.
   Howe, J.

On the nineteenth August, 1858, Thomas B. Muggah sold iso Julia C. Muggah a tract of land, for the price of which she executed two promissory notes, secured by mortgage and vendor’s privilege duly recorded, the first of the notes falling due March 1, 1859, and the second March 1, 18C0.

On the third November, 1866, Mrs. Mary Z. Knight, administratrix, iiaving obtained judgment against Julia C. Muggah and William J. Nash, in solido, recorded it, and compelled Nash, the surety, to pay it. Nash died and the present plaintiff was appointed his administratrix.

On the fourth August, 1870, Mrs. Julia C. Muggaii, by notarial act, acknowledged her indebtedness to her vendor, Thomas C. Muggah, for the price of the land, declared her inability to pay the same, and retroceded to him the property.

In October, 1870, the plaintiff, as administratrix of Nash, legally subrogated to the judgment as against Mrs. Julia C. Muggah, instituted this hypothecary action against Thomas R. Muggah, third possessor, to enforce tho judicial mortgage imposed as above upon the property in J806, while Mrs. Julia C. Muggah was owner.

Tho main defense made was that the voluntary retrocession to T. R. Muggah, made August 4, 1870, restored the property to him tree and clear of all mortgages that might have been imposed upon it by the vendee during her ownership, which ownership was defeasible by reason of nonpayment of the price. Chretien v. Richardson, 6 An. p. 2.

To this the plaintiff replied that at the time of the retrocession moro than ten years had elapsed from the date at which the price became exigible; that not only were the notes prescribed, their accessary mortgage perempted, and the vendor’s privilege lost, but that the right of action to dissolve the sale was prescribed by the lapse of more than ten years; and that there being no right of action to dissolve, there could he no voluntary retrocession producing an equivalent result.

The court a qua sustained the views of the defendant and dismissed the suit, and plaintiff has appealed.

We are constrained to think that there was error in the judgment. There is no dispute about the fact that the action to dissolve the sale for nonpayment of the price was prescribed in March, 1870, by the lapse often years. George v. Lewis, 11 An. 654; George v. McNeill & Knox, 23 An., p. 354. It would seem to result from this that at that moment tlie title of Mrs. Muggah, theretofore defeasible, became indefeasible; and upon this indefeasible title the grasp of the plaintiff’s judicial mortgage was instantly fixed. Five months after Mrs. Muggah made the retrocession. If we concede that her acknowledgment of the debt for the price was a renunciation of the acquired prescription which then barred' the action to dissolve, still this renunciation should not he permitted to prejudice the plain rights of plaintiff previously acquired. C. C. 3466 [3429]; 1 An. 330; 2 An. 546; 8 An. 505.

The case of Johnson v. Bloodworth, 12 An. 699, relied upon by defendant, and the French authorities therein cited, are not here in jioint. The rule there settled was that the unpaid vendor, even by private unrecorded act, may enforce the implied dissolving condition against his vendee to the prejudice of the mortgage creditor of the latter; and the copious citations from the French jurists are made in support of tho proposition, which it is not necessary here to discuss, that under the Code Napoleon the vendor’s privilege and the right of resolution lor nonpayment of the price are distinct rights, to he enforced by distinct remedies. But neither in that nor in any other case to which we have been referred, is it held that a vendor whose action to dissolve has become barred by prescription, can, by an agreement of retrocession with the vendee, impair the rights of a mortgage creditor of the latter.

We do not think the defendant entitled to anything for improvements he claims to have placed on the land in 1859 and 1860, while it was the property of Mrs. Muggali.

For the reasons given, it is ordered that the judgment appealed from he avoided and reversed. It is further ordered that there be judgment in favor of the plaintiff, recognizing and rendering executory the judicial mortgage set forth in her petition against the lands therein described; that the said lands he seized and sold to satisfy the said mortgage debt, with interest as therein provided, and that the defendant pay the costs of both courts.


author: Wxly, J.

text:
    No. 757.
    Alexander G. Frere, Tutor, v. Wm. Robertson, Testamentary Executor.—Ann H. Smith and B. D. Dauterive, Intervenors.
    A mortgage creditor who participated at a meeting of the creditors of an insolvent debtor and made no opposition to the homologation of the proceeding as agreed upon, is, after the homologation by the judge, precluded from requiring a sale of the property to be made for his benefit on terms different from those agreed upon at_the meeting of creditors. But if a mortgage creditor bo not present at the meeting of creditors, and be not represented therein, then, and in that case, lie may, notwithstanding the deliberations have been homologated by the judge, cause the property, or a sufficient amount thereof to pay his debt, to bo sold for cash.
    APPEAL from the Parish Court, parish of Iberia.

      Theo. Fontelien, Parish Judge. D. Gaffery, for plaintiff.

      Jos. A. Breaux, J. J. Gary, and Tucker ds Davis, for intorvenors, appellants.

      Debíame & Perry, for defendant and appellee.
   Wxly, J.

The plaintiff, and the intervenor Mrs. Smith, who joined in his demand, have appealed from a judgment dismissing the rule requiring the sale for cash of certain property belonging to an insolvent succession, administered by the defendant. The plaintiff, and Mrs. Smith, legal mortgage creditors of the succession of Leonard J. Smith, whose mortgages were recognized in the same judgment against said succession, seek to obtain an order to sell for cash the property mentioned in the rule, to pay their claims, and for the liquidation of the succession. The objection is, that the court has already ordered the sale of the property on terms fixed by a meeting of the creditors of the insolvent succession under articles 1172,1173,1174 and 1175, C. C.; that the plaintiff was a party to said meeting, and did not require the sale for cash of so much property as was necessary to pay him, either at the meeting of the creditors, or at the homologation of the proceeding by the judge, and that he can not complain of the loss of his right to require the sale for cash under articles 1176 and 1177, C. C., because he failed to assert it, although a party to the concurso. Undoubtedly a mortgage creditor has the right ordinarily to demand the sale for the payment of his claim, bat where, in an insolvent succession, a sale has been provoked under the articles above referred to, a mortgage creditor participating in the proceeding aud failing to assert the privilege which those articles give him over ordinary creditors in the manner therein indicated, can not. ignore the proceeding, and demand the sale of property to pay him on terms other than those fixed by the judge on the proces verbal of the meeting of the creditors. He is bound by the proceeding in which he participated, and if he failed to obtain the right which articles 1176 and 1177 gave him over ordinary creditors, it was by his own laches. 17 An. 72.

The court had the right to order the sale on terms different from those fixed for forced sales by the articles of the Code of Practice, in a case like this, where the terms were advised by a meeting of the creditors. A mortgage creditor has no more rights at a concurso of this kind than other creditors, except that of requiring the sale for cash of sufficient property to pay him. If he fails to assert this right when participating in a proceeding under articles 1173, 1174, 1175, 1176 and 1177, C. C., ho loses it by his own laches.

It was the duty of the judge in homologating-the proceeding of the meeting of the creditors to order the sale on the terms advised, unless the mortgage creditors participating therein, required to be sold for cash sufficient property to pay them. C. C. 1176, 1177.

Now, the plaintiff did not require the sale to be made for cash, and the judge had.no right to so order it for his benefit, in homologating the proceeding. If he had done so he would have violated article 1177, C. C., which declares that: “The judge on homologating the proceedings is bound to order to be sold for‘cash so much of the property of the succession as will be sufficient to pay the creditors by privilege, or mortgage with interest and costs, if they require the sale to he thus made.”

Now, because the plaintiff failed to exercise a right which belonged to him as a member of the meeting of creditors in virtue of the character of his claim, we do not see that the order of sale on the terms fixed by the creditors is on that account an absolute nullity, and need not be regarded by him.

If a mortgage creditor fails to -assert his right when participating in a proceeding of creditors to fix the terms of sale, he will not be heard complaining of the consequences. But the plaintiff insists that as he voted against the selling of the properties belonging to said succession of Smith, for the present,” he did not consent to the' terms of the sale advised by tbe other creditors, and is therefore not bound by the proceeding.

In voting to postpone the sale, we are not aware-that a mortgage creditor has greater rights than ordinary creditors. It is certain he can require the sale of sufficient property for cash to pay him if he so. desires, and the judge is bound to order it. But the judge is not bound to order it if he is not required to do so at the time he homologates the proceedings in which the mortgage creditor participated. 19 An. 81; 4 M. 450; 10 M. 54.

In regard to the interven or, Mrs. Smith, who lias joined in the prayer of the plaintiff, and asks that a sale be made for cash to pay the amount of her mortgage, we think her demand is well founded. She was not a party to the proceeding resulting in the order of sale referred to, and is not bound by it. 2 B. 201. She was not represented by the attorney of absent creditors, because she resided in the parish of Iberia at the time, and is not bound by his waivers.

It is therefore ordered that the judgment appealed from be affirmed as to the plaintiff; and as to tlie intervenor, Mrs. Ann II. Smith, let it be avoided and annulled, and-it is ordered that as to her the rule be made absolute, at the defendant’s costs. It is further ordered that the plaintiff and the defendant pay costs of this appeal.


author: IIowe, J.

text:
    No. 754.
    Aurelia Dupre, Tutrix, etc. v. P. I. Mouton, Administrator.
    Tlie appeal will be dismissed ex officio, if no order of appeal has been granted by tbe judge a quo. An agreement of counsel entered on tbe minutes of tbe court, before judgment, giving to either party to tbe suit a devolutive or suspensive appeal irom sucli judgment as may bo rendered by the judge who bas taken tbe case under advisement, bas no logal effect whatever as an order of appeal from tbe judgment.
    APPEAL from the Parish Court, parish of Lafayette.

      A. J. Moss, Parish Judge. HI. JB. Girard, for plaintiff and appellee.

      0. Debaillon, for defendant and appellant.
   IIowe, J.

We find it necessary to dismiss this appeal ex officio. The judgment was rendered and signed, May 16, 1871, and no order of appeal was thereafter granted. Eleven days before the judgment was rendered, it appears by an extract from the minutes that the case was “taken under advisement, and to be decided in chambers, with the same effect as in open court. By agreement of both counsel, devolutive aud suspensive appeal to both plaintiff and defendant is granted by. simply filing the necessary bond, and notifying the opposite counsel.”

An appeal is a method of revising a definitive judgment. C. P. 556. It is to be taken after such definitive judgment is rendered. C. P. 573, 574, 575, 578. An order of appeal, which is absolutely necessary, is the first step in. the process by which the cause is brought within the jurisdiction, of the superior court. 22 An. 458, Norris v. Warren. If ;t be conceded that the minute granted above is anything more than a memorandum of a consent by the attorneys, and amounts to an order •of appeal, yet we know of no law which authorizes such orders in anticipation of the future rendition of a judgment. If a judge can grant an order of appeal to both parties, eleven days before judgment, he might go still further, and at the moment a suit is instituted, by anticipation, grant general orders of appeal, to all possible parties, from all future judgments.*

Appeal dismissed.


text:
    No. 756.
    Elie McDaniel v. Onezime Guillory et als.
    In. this ease the tutor was indebted to his wards, and his property was incumbered with a mortgage to that extent. To cause his other property to be relieved of this incumbrance, the tutor executed a special mortgage in their favor on a particular piece of property. This property thus specially mortgaged was subsequently sold by the tutor, and the vendee specially assumed the mortgage in favor of the minors. It was again sold by the vendee of the tutor, with a like assumption by the purchaser of the mortgage in favor of the minors. The heirs having become of age brought suit for the amount, and claimed a recognition of their tacit mortgage on the property of their tutor, nowin the hands of a thirdpossossor. The defense was prescription and the loss of the mortgage, on the ground of want of inscription.
    Held — That each one of the successive purchasers having specially assumed the mortgage standing on the property in favor of the minors, registry of the mortgage was not necessary as to them; that the substitution of the special mortgage by the tutor for the general mortgage only served to limit the operation of the general mortgage to the particular property described in the special mortgage, and to release all other property of the tutor from the effect of the general mortgage; that the giving of the special mortgage on a particular piece of property did not, therefore, destroy or impair the legal mortgage on that particular piece of property thus- specially hypothecated, and that under the allegation by the heir that he had a legal mortgage on this particular piece of property, he was entitled to have it recognized and enforced in the hands of the third possessor.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry.

      JBaily, J. Martel <& Hudspeth, for pfiaintiff and appellant.

      Moore <& Morgan, for defendants and appellees.
   Taliaferro, J.

The plaintiff brings tisis action against (he defendants, Guillory and several others, to recover the sum of $1500, with interest at five per cent, per annum from the thirteenth of April, 1860, which indebtedness he alleges arose in this manner: Tiiat on the fifteenth of April, 1856, Theopliilus Fontenot became tutor to petitioner and his brother, Joshua McDaniel, and in that capacity received on their account from their mother’s estate and from the estates of two deceased relatives, $3360; that by law a tacit mortgage existed against the property of their tutor to secure his indebtedness to them; that in April, 1859, their tutor sold certain real estate to Emile Tate, which the parties to the act admitted was mortgaged to the petitioner and his brother for $3360 owing to them, by their tutor; that Tate bound himself to pay respectively to each of the two minors one-half of this debt upon the attainment by them of the age of majority, or on their becoming emancipated by law. In November, 1859, Tate sold the property to Garrand and Onezime Guillory, joint purchasers. The act of sale recites that the property was purchased from Fontenot in the month of April preceding, in consideration of the sum of $3000, stipulated to be paid to the minors McDaniel when they should attain the age of majority or become emancipated. This stipulation Garrand and Guillory specially assume. On the fifteenth December, 1860, Garrand sold his undivided half of the property to Guillory, the party now in possession. In the act of sale, Guillory assumed to pay the whole $3000 to the McDaniels on the happening of the events previously stipulated, viz, their emancipation or attainment of the age of majority. The plaintiff piays judgment against the several defendants jointly and severally for $1500, with interest, and prays that his mortgage against his former tutor be recognized, to take.effect from the fifteenth of April, 1856, and enforced against the mortgaged property described in his petition.

It appears that Fontenot, the former tutor of the minors McDaniel, executed a special mortgage on the property in question in their favor, to operate a release of the remainder of his property from the operation of the legal mortgage resulting from the tutorship.

Tile defendants filed separate answers, denying the allegations of the plaintiff, and pleading prescription against the mortgage claims of the plaintiff. The acting judge, presiding in place of the judge of the district, recused, overruled the plea of prescription set up against the plaintiff’s mortgage claims, on the ground that reinscription of the mortgage was not necessary as against the defendants, who by formal acts had specially assumed to pay the plaintiff’s mortgage, but he declined rendering judgment on the special mortgage shown on the trial, for the reason that, in the opinion of the court, the plaintiff had declared on a tacit mortgage, and that judgment should conform to the pleadings. A personal judgment, in solido, was rendered against the defendants for the amount claimed. The plaintiff has appealed, and prays that the judgment of the lower court be amended so as to recognize the plaintiff’s mortgage on the property described in the petition, and that it be enforced accordingly.

Three bills of exception appear in the record, and which relate to the admission of evidence. The disposition which we make of this case renders it unnecessary to pass upon them specially.

\Ye concur with the judge ad hoo in the opinion that as the defendants who successively became owners of the property mortgaged, took, it oum mere, and under the special obligation on their part to discharge the mortgage, they are placed by their undertaking in the same position thatthe tutor and original mortgageor stood as regards the plaintiff» and can take no advantage of the want of reinscription of the acts of mortgage. But we think the plaintiff has not lost his legal mortgage on the property described in his petition. The effect of the substituted mortgage was to limit the operation of the legal and general mortgage to the particular property specified and described in the special mortgage, and to release all his other property from the minors’ general, mortgage. Under the pleadings, then, a judgment should have been rendered to enforce the plaintiff’s mortgage. Revised Statutes, p. 481,. section 2435; 15 L. R. 218.

It is therefore ordered, adjudged and decreed that the judgment of the district court be amended in this respect; and to this end it is ordered that the property described in plaintiff’s-petition be seized and sold to pay and satisfy the plaintiff’s demand, viz, the sum of $1560, with five per cent, interest thereon from the thirteenth of April, 1856, nutil paid; and in all other respects that the judgment of the district court be affirmed, the defendants and appellees paying costs in both courts.