text:
    No. 2576.
    Succession of Antoine Decuir—On Rule for Sale of Property to Pay Debts.
    The ruléis well established that neither executors nor administrators have the power to create-liabilities against the estates they represent, to waive rights which belong to it, to change the nature of its obligations, or to increase its responsibilities in regard to its debts. But, when judgment has been confessed, as in this case, by the administratrix, on demands that are well iounded: Held — That the heirs must show in opposition to a rule by the judgment creditors for a sale of the property, that the confession by the administratrix was made to their injury, and that their rights of defense against the claims wore waived by the coniession.
    £f the administratrix had no funds in hand with which to pay tli' judgments against the estate, neither her nor the heirs can successfully oppose an application for a sale of the property of the succession to pay the judgment creditors; and a tableau by the administratrix, as a preliminary step, is unnecessary.
    APPEAL from the Parish Court of Pointe Coupóe. A. Bonauchaxul, Parish Judge.

      Thomas If. ffughes, for appellants. Thomas J. Gooley, for appellees.
   Taliaferro, J.

After the opening of Decuir’s succession, four several creditors brought suits against it, and four judgments were rendered severally in their favor. This occurred during the year 1866* The widow and administratrix made defense in each of these suits. numbered ou the docket of the court respectively 111, 324, 325 and 326. Before these judgments were rendered an arrangement was entered into between the administratrix and the several judgment creditors, by which a stay of execution in each case was obtained on payment of part in cash; the remainder to become exigible in four annual installments. By this agreement, too, the rate of interest was lowered to four per cent. On these terms the judgments were rendered on confession of the administratrix. After two of the installments became due, the creditors proceeded by rule against the administratrix, to show cause why the property of the succession should not be sold to pay the amount of these several judgments. Several exceptions and defenses were set up in opposition to the sale applied for by the creditors:

First — That the application was premature, no account or tableau having been required and no notice having been given to the heirs.

Second — Misjoinder of parties plaintiff and the joining in the petition of separate causes of action.

Third — The-petition showed no facts to enable the court to judge ol the necessity of a sale.

Fourth — That the agreements and confessions of the administratrix, upon which the pretensions of the plaintiffs are predicated, are not binding upon the succession.

Judgment was rendered in favor of the plaintiffs in the rule, and an ■order granted for the sale of property of the succession to pay the judgments, interest and costs.

From this judgment the administratrix has taken an appeal, in which she is joined by the heirs.

The exceptions, we think, were properly overruled. The creditors applying for a sale of property had judgments against the succession. Payment of the demands had been made and refused. It is fair to presume the administratrix had no funds to pay them, and a tableau was unnecessary. It is contended, on the part of the heirs, that the compromise entered into between the administratrix and the creditors is illegal and without effect; that she had valid defenses to make in the suits which the creditors liacl brought against her; that in abandoning these defenses and confessing judgment, she inflicted injury upon the estate and upon them; that, in her capacity of administratrix, she could not legally place the succession in a more onerous condition than she found it, and could not change for the worse the position the estate occupied in relation to its creditors.

The principle has been frequently recognized in our jurisprudence that neither executors nor administrators have power to create liabilities against the estate they represent, to waive rights which belong to it, change the nature of its obligations or increase its responsibilities in regard to its debts. 21 An. 287, and cases there cited. But we do not see from tlie record that the administratrix in this case occupied grounds of advantage in the suits brought against her that would have enabled her to defeat the claims of the creditors. In one of these suits a judgment had already been obtained against the estate contradictorily with the administratrix. No defense was, therefore, waived in that case. In another, the acconnt sued on had been acknowledged by Josephine Decuir, who is the administratrix. In this case the prescription of three, five and ten years is pleaded. It is alleged, on. the other side, that the deceased had acknowledged the debt and that, citation had been served within about two years after the acknowledgment. The question was never triéd whether the plea' of prescription, was sustainable. In a third case the only defense is that the plaintiff's; are not the owners 'of the note sued upon. The plaintiffs, on the-, other hand, appear to have established their ownership.

To the fourth the answer was a failure of consideration. That the note sued upon was given for the price of a tract of land. The pleadings indicate that this defense was not likely to prevail. It is not unreasonable to infer that none of these defenses were deemed impregnable, for when the creditors consented to grant time the administratrix withdrew them all and permitted judgments to be rendered against the estate.

We think the judgment should be maintained.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs in both courts.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 2810.
    Mrs. R. A. McKnight, Tutrix, v. A. C. Denouvion.
    The mere filing of a motion or potition for appeal, with an appeal bond, does not divest ihe* court below of jurisdiction over the case. To invest the appellate court with jurisdiction over the case, an order of appeal must be granted by the lower court.
    APPEAL from Sixth District Court, parish of Orleans. Cooley, J.

      Cullom & Walsh, for plaintiff and appellant. Charvet & Du,plan-tier, for defendant and appellee.
   Wyly, J.

The defendant moves to dismiss this appeal, taken by the plaintiff, on the following grounds, viz:

First — There is no order of appeal.

Second — The judge did not fix the amount of the appeal bond.

Third — The surety on the injunction bond has not been made party to the appeal.

We find in the record the following motion for appeal:

“ Now, by her counsel, comes the plaintiff, and moves the court for a suspensive appeal from the judgment rendered in the above cause, returnable to the Supreme Court second Monday of April, 1870.”

(Signed) “ Cullom & Walsh,”

“of Counsel.”

The motion evidently does not contain an order of appeal.

We find no order of appeal in the record. The mere filing of a motion for appeal with, an appeal bond, does not divest the court below of jurisdiction and invest the same in this court. The order of appeal is essential, it matters not in what form the application is made — whether by motion or by petition.

Let the appeal be dismissed at appellant’s costs.


text:
    No. 2269.
    John S. Chidester v. J. S. Simonds et al.
    ■Property that has been purchased by authentic act and passed into the possession of the vendee, can not be seized under a writ of fieri facias against the vendor. In such a case the sale ot the property thus seized will be restrained by injunction taken out by the purchaser. The case would be different if the seizing creditor shows that the sale is simulated.
    APPEAL from Fourth District Court, parish of Orleans. Théard, J.

      Sullivan, Billings & Hughes, for plaintiff: and appellee. Bentineh JEgan, for defendants and appellants.
   Wyly, J.

The plaintiff alleges that he is the owner of the buggies, horses, harness, safe, office fixtures, books, feed and other property in the premises, known as the “Varieties Stable,” at No. 103 Dryades street, New Orleans, having acquired the saitae by purchase and for valuable consideration from Nelson and Clinton Taylor, as per act passed before William Shannon, notary, on twenty-third May, 1867; that he bought in good faith their entire interest in said property, and that they have no further interest therein. That the defendant J. S. Simonds, a judgment creditor of Nelson Taylor, has caused said property to be seized by the sheriff of the parish of Orleans, under and by virtue of a writ of fieri facias, issued oh his said judgment; that he has caused it to be advertised, and will sell it unless restrained by injunction. He prayed for and obtained the writ of injunction, and he also prayed that said property be declared to belong to Mm, that the injunction bo made perpetual, and for general relief.

The defendants pleaded the general issue, and specially denied that the plaintiff is the owner, or is in any manner interested in the property seized under his judgment against Nelson Taylor, praying that the injunction be dissolved, with ten per cent, interest and twenty per cent, damages in solido against the plaintiff and his surety on the injunction bond.

The court gave judgment in favor of the plaintiff, perpetuating the injunction, with the costs, and the defendant Simonds has appealed.

An examination of the evidence satisfies us that the judgment of the court below is correct. The plaintiff purchased the property by an authentic act, went into possession thereof, and has held and administered the same ever since through his attorney in fact Samuel G-. Ferguson.

The attempt of the defendant Simonds to show simulation, or that the sale was not consummated by delivery, is a failure.

Let the judgment appealed from be affirmed, with costs.

Rehearing refused.


author: Hoavell, J.

text:
    No. 1414.
    A. W. Walker v. A. Miltenberger & Co.
    In a suit io recover the damages resulting from the unlawful sequestration of a lot of sugar, the plaintiff must show, by undisputed evidence, the actual amount of loss resulting from the fall in tlie price during the time it was detained under seizure. Damages will not be allowed for an alleged deficiency in weight, if the evidence is vague and uncertain, but a reasonable amount will be allowed, as attorney’s fees, for setting aside the sequestration and getting possession of the property.
    APPEAL from tlio Fifth District Court of New Orleans. leaumont, J.

      It. 21. lay, for plaintiff and appellee. Campbell, 8poffortl cO Campbell, PoseUus & Philips and 8. H. Torrey, for defendants and •appellants.
   Hoavell, J.

This is a suit to recover $2471 60, Avith interest, as damages, alleged to have been sustained by plaintiff in consequence of an unlaAvful seizure of thirty hogsheads of sugar by defendants under process of sequestration issued out of the late United States Provisional ■Court for the State of Louisiana. Judgment was rendered in favor of plaintiff for $1482 57, with interest, and defendants appealed.

The seizure was made on the levee in this city on twenty-third February, 1865, and notice given on same day to plaintiff’s broker. On the next day, (twenty-fourth), notice was given to plaintiff. On the day following, (twenty-fifth), a sale of the sugar was made by the said broker at eighteen cents per pound to J. B. Murison, plaintiff stating to the broker that the sequestration could be set aside. This, however, was not done until the eighteenth March, following, and the purchaser refused to complete the sale, because delivery could not be made within a reasonable time. When released the sugar was hauled to and stored in plaintiff’s warehouse, Avhere it was sold on the twelfth ■of April, at thirteen and a half cents, being a difference of four and a half cents per pound.

The claim is for this difference in price, amounting to $1307 97 ; loss of three thousand pounds in weight, $510; watching, hauling, storage, extra weighing, insurance and interest, $114 67, and lawyer’s fees, $500.

The defendants Avore not informed that the sugar would be held or sold at their risk. It was Amluntarily removed and sold by plaintiff'. His broker says: “The market value of those grades of sugar are quoted in the Price Current from eighteen to twenty cents per pound on the twenty-fifth of February, 1865. I had sold the sugar at eighteen ■cents per pound. It was not delivered on account of the seizure. I sold the sugar on the tAvelfth April, 1865, at thirteen and a half cents per pound. On the seventeenth March the market price of this sugar was from eighteen to tAventy cents per pound. * * * I know that I tried several times to sell that sugar, and that in one case, on the twenty-third of March, I sold five hogsheads of it at twenty-one cents. I could not sell it all because the market was dull. I could probably liave sold it, but at a sacrifice. * * * I am. not certain whether those five hogsheads belonged to the lot of thirty, but I am certain they wore of the same crop and about the same quality and grade,” and were rolled out of the warehouse as they came, all being stored together. “ Mr. Walker and myself made a mistake by keeping the sugar until the market was down, instead of going up. . We wanted to do the best by keeping the sugar. By the week ending March 18, the low grades of sugar were of difficult sale. However, if I had been positively instructed to sell, I suppose I could have been able to get the quoted price,” which is shown to have been eighteen to twenty cents, and on twenty-first five hogsheads, of similar grade, were sold at twenty-one cents. Prom this evidence it is clear that the thirty hogsheads could have been sold without a loss in price. The evidence is too vague to show any loss in weight during the seizure, and no necessity is shown for increasing the other items of the account at the charge of the defendants, except a reasonable fee for setting aside the sequestration, which, in our opinion, should be allowed and fixed, under the circumstances, at one hundred dollars. There seemed to be no great legal difficulty, it being shown that the sugar sequestered was not subject to the privilege of the defendants herein.

It is therefore ordered that the judgment appealed from be amended by reducing the amount thereof from $1482 57 to one hundred dollars, and, as thus amended, it be affirmed. Costs of appeal to be paid by plaintiff.


author: Howell, J.

text:
    No. 1803.
    L. Levering & Co. v. D. A. Clark et al.—Hamilton & Dunnica, Intervenors.
    A consignee of cotton is bound to comply wifcli tlie conditions imposed upon him by the principal in relation to the appropriation of the proceeds, and the acceptance of a draft; drawn by the owner of the cotton gives the factor a preference over the prooeeds to that extent.
    Appeal from Third District Court of New Orleans. JSmerson, J.

      Miles Taylor, J. McConnell and JS. W. Huntington, for appellees. Hace, Foster <& F. T. Merniclc, for intervenors and appellants.
   Howell, J.

On the seventeenth April, 1866, Clark, at St. Louis, shipped thirty-six bales of cotton to Hamilton & Dunnica, factors in New Orleans, and drew on them his bill of exchange, at one day’s sight, for $4800, which was negotiated at St. Louis and sent iorward attached to the bills of lading to Smith, Newman & Co., bankers in this city, who presented it to the drawees, and upon their acceptance thereof the bills of lading were delivered to them.

Plaintiffs having sold to Clark ten of the said thirty-six bales for cash, and not having received the price, sequestered the same, on the allegations that they had never legally parted with the ownership and possession thereof, and Clark had obtained possession by fraud, and. they claim the cotton or its value as owners.

Hamilton & Dunnica, who, by agreement, sold the cotton and held the proceeds, paid the draft at maturity, and intervened, claiming the-amount thereof and the costs and charges, which, together, exceed the proceeds, with privilege.

The district court allowed plaintiffs the net proceeds of ten bales, §1529 13, and gave the intervenors the balance, dismissing the-demands of other parties'whose suits had been cumulated with this.

From this judgment the intervenors, Hamilton & Dunnica, appealed..

The evidence shows that the cotton was regularly sold to Clark, weighed and delivered according to the custom at St. Louis, by which purchasers of cotton for cash receive delivery and are entitled to two- or three days before bills are presented for payment. There is no proof of any fraud upon the part of Clark, as charged, in getting-possession of and shipping the cotton. The bills of lading came into-the possession of intervenors and the draft was accepted by them before the cotton was sequestered here. Under this state of facts they are protected, and must recover the advances made by them. Clark, the consignor to the intervenors, his consignees, was legally the-owner of the cotton, having acquired by regular purchase and delivery, and he had the right to direct the appropriation of the proceeds of his property, which he did by means of the draft drawn, against the consignment and attached to the bill of lading. 2 An. 572; 10 An. 782.

It is therefore ordered that the judgment of the court a qua be so-amended as to direct the payment of the proceeds of the cotton in the hands of intervenors to their claim in preference to that of plaintiffs, and as thus amended, it be affirmed; plaintiffs to pay costs of appeal..


text:
    No. 1882.
    Jackson & Anderson v. F. Beling.
    In a case where the law has fixed the duration of a lease, in the absence of an express agreement, evidence of usage or custom is not admissible.
    In a suit on a contract of lease, evidence of a custom is irrelevant and should not be admitted. To enable a party to recover on a verbal lease, the evidence must make his demand certain; to • make it probable is not sufficient.
    APPEAL from Fourth District Court of New Orleans. Théard, J.

      J. Ad. Rosier, for plaintiffs and appellants. 0. R. Schmidt, for defendant and appellee.
   Wyly, J.

This is an action to enforce a verbal contract of lease-which the plaintiffs say they made of their store, at 28 and 30 Tchoupitoulas street, New Orleans, to the defendant, for one year, from the first day of November, 1867, at the rate of $110 per month. Under this lease they claim $990 and the writ of provisional seizure which was granted them.

The defense is, that tlie premises were not leased by the year, but ■only by the month, at $110 per month; that he, the defendant, positively declined to take the premises, except by the month, and he refused to accept a year’s lease, although the plaintiffs offered to reduce the rent to $100 per month.

The court gave judgment in favor of plaintiffs for $110, with legal interest from judicial demand and with lessor’s privilege on the property seized; and they have appealed.

Qur attention is directed to the bill of exceptions taken by the defendant to> the answers oí the witness, Jonas Pickles, to the following questions propounded by the plaintiffs, viz:

First — What is the usual mode of renting property situated like that rented by-the plaintiffs to the defendant?

Second — When nothing is said as to the term during which a lease is to last, what is the understanding as to the duration of the term for that kind of property situated as it is ?

As the plaintiffs declared upon a contract of lease, proof of custom was irrelevant.

Where the law provides what shall be the duration of a lease in the •absence of express agreement between the parties, no evidence of usage or custom in this regard should be received. C. C. 2655. The •answers should not have been admitted.

An examination of the evidence' inclines us to the conclusion that there is no error in the judgment. One of the plaintiffs says that the understanding was that the defendant was to take the premises by the year, at the monthly rent named. On the other hand, the defendant testifies positively that he promised to take the house at $110 by the month, but not as a lease, and only so long as it suited him. The other witnesses were not present at the interview between the parties, they had no personal knowledge of the verbal contract of lease.

In order to recover, the plaintiffs should make their claim certain; to make it probable is not enough. 8 M. 14; 10 M. 419; 14 La. 455 ; 19 La. 189; 2 R. 27; 12 R.471; 6 An. 28, 30; 8 An. 25; 10 An. 310; 12 An. 12; 13 An. 105.

But the plaintiffs argue that, as the defendant held the house under a written lease at'$150 per month the year previous, there was a tacit reconduction. They point us to article 1811 of the Civil Code, which declares that: “ Silence and inaction are also, rtnder some circumstances, the means oí showing an assent that creates an obligation; if after the termination of a lease the lessee continue in possession, and the lessor be inactive and silent, a complete mutual obligation for continuing the lease is created by the act of occupancy of the tenant on the one side, and the inaction and silence of the lessor on the other.” This argument shifts the whole theory of the case presented by the plaintiffs in their pleadings, and is contradicted by the evidence of Anderson, one of the plaintiffs, and the other witnesses who testified in behalf of the plaintiffs.

There was no silence and. inaction on the part of the plaintiffs. Previous to the termination of the old lease the interview was had between the parties, and the foundation was laid for the new lease, which was verbal, the rent being stipulated for $110 per month, whereas in the old lease it was at the rate of $150.

How parties who have declared upon an express verbal lease at $110 per month can recover judgment on an implied lease at $150, which they have not set up in their pleadings, we can not comprehend. By their pleadings and their evidence they are estopped from claiming a tacit reconduction.

Let the judgment appealed from be affirmed; cost of appeal to bo paid by plaintiffs and appellants.


text:
    No. 2478.
    The State, ex rel. Hughes & Dejean, v. S. N. Burbank, Treasurer of Metropolitan Police.
    A writ of mandamus should never be issued on the mere consent of tlie parties. Consent in such cases creates the presumption of fraud, and, when unsupported by evidence, can not form the basis of a valid judgment.
    APPEAL from the Sixth District Court, parish of Orleans. Oooley, J.

      Hughes & Dejean, for relators, appellees. JE. Mlleul, for appellant.
   Wyly, J.

On the twenty-second October, 1869, the relators filed their petition alleging that they held Metropolitan Police warrants to the amount of $16,277 18; that they made application to the defendant, the treasurer of said board, for payment thereof and he refused to pay the same, although he had funds sufficient to pay the relators, to wit: $200,000, in his hands. Alleging that they were without remedy by the ordinary course of law, the relators prayed for a writ of mandamus to compel the said Burbank, treasurer, to pay them the amount aforesaid, and for general relief.

On the day before the suit was filed, the defendant made the following acknowledgment or confession, to wit: ■

Defendant accepts service; acknowledges the receipt of order and copy of petition and original, and consents that the order herein prayed for be made peremptory, the ease taken up this dav and judgment rendered and signejj.”

(Signed) •' S. N. Burbank,”

•‘Treasurer Metropolitan Police Board.”

“ New Orleans, Louisiana, October 21, 1869 — 10 A. M.”

On the day the suit was filed, by consent of the parties, the court took the matter under advisement, and, “ considering the consent of the respondent that the prayer of the petition be granted and the judgment signed forthwith,” it was ordered that the mandamus be made peremptory, and the respondent commanded to pay over the sum claimed immediately, and that he pay costs of judgment.

Prom this judgment the Board of Metropolitan Police have appealed.

They contend that their treasurer, S. N. Burbank, acted in disobedience of their orders and resolutions — that he was unauthorized to consent to any such proceeding.

There is in the record no evidence supporting the demand of the relators or showing that they are creditors of the Board of Metropolitan Police. The mandamus is based alone on the consent of the respondent.

We think the writ should not be issued upon the mere consent of the parties. That consent creates the presumption of fraud. That the proceeding before us bears on its face this appearance, and that the Board of Metropolitan Police have the right to appeal and demand relief from the illegal acts of their unfaithful agent.

Let the judgment be reversed, the mandamus be set aside, and the petition be dismissed, at the costs of relators.


text:
    No. 1895.
    Martin & Butts v. Lastrapes & Robertson.—Block Brothers, Intervenors.
    Where advances have been made and supplies have been furnished for several years to carry on a plantation, the merchant is only entitled to a privilege on the crop of each year, on such amounts as are show to have been used in making the crop of that year.
    APPEAL from Third District Court of New Orleans. Emerson, J.

      W. O. Denegre, for plaintiffs and appellees. A. D. Tissot, for defendants and appellants.
   Howell, J.

This case presents a conflict of privileges for advances and supplies, made and furnished by two commercial firms, to produce the cotton sequestered herein.

Each party, the plaintiffs and intervenors, obtained judgment against defendants, planters, for the amount of their claims respectively, with privilege on the proceeds of the cotton, to bo paid pro rata. The intervenors appealed.

The correctness of their account, beginning on twenty-sixth January,. 1867, to the extent of over $6000, and the fact that the items thereof were furnished to defendants for making the crop of 1867, were admitted. The account filed by the plaintiffs runs from March 23, 1866 to January 9, 1867, and on the eighteenth of the latter month a settlement was made, and defendants gave their note for the amount due, including interest to its date, and payable first January, 1868. One of the defendants testifies that about the twentieth or twenty-second of December 1866, he came to the city to make arrangements for the year 1867. He informed the plaintiffs, their factors, that it was impossible to prepare the crop for market in time to settle with them before the close of the year 1866, and asked if they, plaintiffs, were able to continue their advances for the year 1867, who agreed to accept the business and make the required advances to the extent of not less than nine thousand dollars, but wished defendants to settle, and owe no one except them, the plaintiffs. He states further, that the intervenors made the advances because, about that time, Martin & Butts refused to make further advances, and those of Block Brothers were necessary to continue the plantation business of Lastrapes & Robertson, and raise the crop of 1867. Of the account of plaintiffs, only three items, to wit: invoice of plows, $219 78; corn, $136 05; and freight bill, $147 53, are shown to have been furnished for the crop of 1S67, and are therefore the only ones entitled to a privilege on that crop. After the date of each of these items, settlement was made for the year 1866, which includes them ; but we think they may, under the evidence, be detached and allowed a privilege.

It is therefore ordered that the judgment of the lower court be amended so as to limit the amount, for which plaintiffs are allowed a privilege on the proceeds of the cotton sequestered, to four hundred and ninety-three dollars and thirty-six cents, with five per cent, interest thereon from ninth January, 1867, and that, as thus amended, the judgment be affirmed. Plaintiffs to pay costs of appeal.


author: Wyxy, J.

text:
    No. 1959.
    Louis Selby v. Friedlander & Gerson.
    Aletter written by a creditor to his commission merchant, in which he agrees to remit the interest on his account against the merchant, when offered in evidence by the latter, the creditor can not be heard as a witness to show that he intended something different from that which its terms express.' In a case of this kind, the party writing the letter can not be allowed to contradict or vary its meaning by parol testimony. The rule is well established that a party can not vary or destroy his voluntary agreement by other than written evidence.
    APPEAL from Fifth District Court, parish of Orleans. Leawmont, J.

      Richard Shaclcelford, for plaintiff and appellee. 0. Roselmts dé Alfred Philips, for defendants and appellants.
   Wyxy, J.

Plaintiffs sued the defendants, his commission merchants, to recover the amount due him, as appears by the account current rendered by them, and other documents.

The defense is, that there was a remission of the interest.

The court gave judgment for the amount claimed, with eight peícent. interest. The defendants have appealed. The contest is only as to the interest.

The indebtedness accrued in 1861 and 1862. After the war, there was considerable correspondence between the plaintiff and the defendants. The latter insisting upon the abatement of the interest, expressed their willingness to pay promptly the principal. They were not willing to make the payment without a remission of the interest.

It appears that the plaintiff was very anxious to get at least part of what was due Mm, and, on the fifth of November, 1866, he wrote to the defendants that he needed $5000, which, he said, one of the defendants, Mr. Gerson, promised to let him have. He also stated:

“Best assured that I will remit the interest in advance. Please answer this soon.

“Your friend, Louis Selby.”

On the eighth of November, 1.866, the defendants replied, sending by express the required amount, stating:

“If you need more money, you can either draw for it, or we will send to you, as you shall get your money within five days’ notice. * * We are certainly under great obligations to you for-remitting the interest, and whenever we can serve you, you will find us as friends.

“ Yours truly, Fbiedlander & Gerson.”

On the tenth of November, 1866, the plaintiff, who resided at Memphis, wrote to the defendants, acknowledging the receipt of their letter of the eighth of that month, and also the receipt of the money.

On the trial the plaintiff offered his own deposition to contradict the letter then in evidence, in which he stated: “ Rest assured that 1 will remit the interest in advance; ” it was received, and the defendants excepted on the ground that it contradicted the written agreement contained in the letter.

We think the court erred in receiving- the parol evidence. “ The unbending rule of our jurisprudence -is, that a party can not vary or destroy his voluntary agreement by other than written evidence, which includes answers to interrogatories on facts and articles.” Lesseps v. Wicks, 12 An. 739, and the authorities there cited; also, Bartlett v. Estebene, 5 An. 315.

The case of Williams, administrator of S. S. Prentiss, v. Govey Hood, 11 An. 113, seems to bo directly in point, where it was held that: “ It is not competent for a party, against whom one of his letters is offered in evidence, to show by the parol evidence of the witness who wrote the letter for him, that he intended something different from what tho letter expresses.”

In that case the letter was written by his amanuensis and signed by Ilood, yet ho was not permitted by parol to alter or vary its terms. Hero the letter was written by tho plaintiff himself.

When the defendants sent the plaintiff the money he requested, they thanked him for remitting the interest. He acknowledged the receipt of the money and of the letter. It was brought home to him that the defendants accepted his proposition to remit the interest, and yet ho retained the payment made under that agreement, and remained silent. We are constrained to believe that tho interest was remitted, and the parties so understood it.

It is therefore ordered that the judgment appealed from be amended, allowing the plaintiff eight per cent, per annum interest only from judicial demand, and as so amended that it be affirmed. It is further ordered that the plaintiff pay costs of appeal.

Rehearing refused.


author: IIowe, J.

text:
    No. 1926.
    William A. Hyde v. Peter Marcy.
    In an action upon a joint obligation, all tlio parties thereto must bo made partios to llic suit. O. C., 2080, 2031, 2032. ■
    Where, therefore, a. suit was brought in 2!e\v Orleans, upon a joint promissory note, made there, and one of the defendants in such suit, an absentee, who had neither a residence nor property in Louisiana, was cited, through a curator ad hoc: Held — That he was a necessary party; that the only course left was to appoint for him a curator ad hoc, and that lie sub* jected himself to this eventuality by signing the agreement in suit. 5 An. G7á.
    Whether or not such a judgment, as against the absentee, can have any extra territorial effect, it is not, in Louisiana, a nullity.
    APPEAL from the Fourth District Court of New Orleans. Théard, J.

      Oasabat & Philips, for plaintiff and appellant. Bradford, Lea <£* Finney, for defendant and appellee.
   IIowe, J.

In 1867, a judgment was rendered by the Fourth District Court of Now Orleans, against William A. Hyde and T. G. Maclde, an joint debtors, upon a promissory note, executed by them as ordinary partners, dated in New Orleans, October 7, 1859, and payable at the Citizens’ Bank of Louisiana. Mackie was personally cited, but, it appearing that Hyde could not be found, and the sheriff being credibly informed that ho was out of the State, a curator ad hoe was appointed to represent him, contradictorily with whom the suit was carried on, with the result above stated.

The suit now before ns was instituted by William A. Hyde, to annul the judgment thus obtained against him, because” (in the language of his petition), he was never cited, as required by law, ho being at the time a resident of the State of Texas.” Ho does not allege that, at the time, he had no property in Louisiana, but the fact that ho liad not may be fairly gathered from the record as a whole, and the positions assumed by counsel in the argument.

The defendant filed his peremptory exception of no cause of action, an answer to the merits, and a pica in reconvention, praying for judgment upon the note, in case the judgment above recited should be annulled.

The exception was maintained, and the suit dismissed, and the plaintiff has appealed.

The note in question was made in Now Orleans; the makers’ Arm was domiciled here, as it seems, and their obligation was payable here. It was .a joint obligation; and, when the defendant sought to collect it by suit, the plaintiff, Hyde, became a necessary party, under the provisions of articles 2080, 2081 and 2082 of the Civil Code. If, then, he was an absentee, the only course left was to appoint for him ■a curator ad hoe. In the language of this court, in Jelks v. Smith, 5 An. 1374, he subjected himself to this eventuality by signing the agreement on which the suit was brought.”

The plaintiff’s counsel seem to admit that, up to this point, the proceedings wore regular; that, in deference to the provisions of law, respecting joint debtors, it was proper to thus make him a party. But they insist, with much earnestness, that no judgment could or should have been rendered against him; that he might be thus made a joint defendant, in order to satisfy a legal requirement, but not for any further purpose.

The question thus yiresented is not free from doubt, but we prefer t o follow the decision in Jelks v. Smith, above cited, rendered, as it was. in full view of the loading- case of Dupuy v. Hunt, 2 An. 562. Sec, also, Field v. Delta Company, 19 An. 36. If, therefore, in the present •ease, the proceedings on the note were such as to satisfy the requirement that “all the obligors must be made defendants,” C. C. 2080, we must think that, being made defendants, they were both subject to the liabilities of that position, and that the judgment against Hyde was not a nullity. How far it can have any extra territorial effect, is not for us to determine in this case.

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


text:
    No. 2193.
    Morgan Cryer v. Thomas Drewry—Fellows, Ferguson & Hervey, Garnishees.
    ■Garnishees residing in the city of New Orleacs can noli be held liable to the attaching creditors for a lot of cotton in their hands, or the proceeds thereof, where the evidenco shows that the cotton attached was purchased at sheriff’s sale, in the State of Arkansas, before shipment, by one of the garnishees on their own account.
    APPEAL from Fourth District Court, paiásh of Orleans. Théard, J.

      John H. Halsey, for plaintiff and appellee. A. Bobert, curator ad hoc for defendant, appellee. Olorice, Bayne & Benshaw, for garnishees, appellants.
   Howell, J.

Plaintiff sued the defendant, Drewry, on a note for $1300, dated at Louisville, Ark., on the twenty-fifth of September, 1866, due first of May. 1867, with ten per cent, interest, the payment of which, as alleged, and is indorsed thereon, is secured by mortgage on ton bales of cotton, which defendant, in violation of agreement, shipped to Fellows, Ferguson & Hervey, in New Orleans, who have sold the same and hold the proceeds, and who are made the garnishees. In their answers they deny having any property or funds of the defendant. These answers were traversed, and on the trial thereof, judgment was rendered, against the garnishees for $450, with ten per cent, interest, and they appealed.

The evidence shows that the firm of Drewry & Little raised a crop together, in 1867; that a portion thereof was sold by the sheriff of the county where it was raised, and purchased by C. M. Hervey, one of the garnishees, and shipped to his firm here. It was this cotton, or a part of it, that was attached in this suit. The defendant, therefore, was not the owner of it. Some effort was made to prove that the firm of Fellows, Ferguson & Hervey agreed to hold the surplus of its proceeds, after paying their claim against Litle, of the firm of Drewry & Little, for the benefit of plaintiff on his claim against Drewry; but what was said on this subject was too vague and conditional to create an obligation on their part, or to make the supposed surplus the property of Drewry.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of the garnishees, Fellows, Ferguson & Hervey, with costs in both cases.

Rehearing refused.


text:
    No. 1937.
    Joseph Aleix v. Charles Derbigny.—Widow Duffel, Tutrix, Intervenor.
    The intervenor is not entitled to appeal from a judgment against the defendant, if no judgment has been rendered by the court below on the intervention.
    APPEAL from Sixth District Court of New Orleans. Duplantier, J.

      lidien A. Seghers, for intervenor, appellant. Saucier & Miehinard and It. Duvignaud, for appellees.
   Howell, J.

The plaintiff purchased four lots of ground, in New Orleans, from the defendant, at public auction, but, having refused to comply with the terms of sale, he was notified that the property would be sold again, at his risk; whereupon, alleging apprehended injury to his credit, he obtained an injunction, restraining the defendant from proceeding with said threatened sale, á la folie enchere, on the ground that the title of the latter was imperfect, for the following reasons, to wit: The said lots were once sold by the defendant to Albert Duffel, now deceased, whose succession was accepted, with benefit of inventory, by the widow and children, some of whom are minors, and before its final liquidation, a retrocession of said lots was made to the defendant, for the unpaid price owing by the succession, upon the advice of a family meeting, and judgment of court homologating the deliberations thereof. But the undertutor of the minors did not attend the said meeting, they being represented by an undertutor ad hoc, appointed for the purpose, and the action of the beneficiary heirs, widow and tutrix, in effecting said retrocession, is illegal, and not warranted by law.

The defendant, without excepting, answered, maintaining the validity of his title, and the regularity of the proceedings by which the retro-cession, or compromise, was authorized and effected, which resulted in guarding the interests of the minors, as the price due on it at the time exceeded that for which it was, immediately after, sold to the plaintiff,, and the succession was saved an actual loss, besides the expense of a sale under legal process.

The widow and tutrix intervened, adopting the defense of the defendant, and joining in his prayer for a decree dissolving the injunction, add declaring his title good and valid.

Judgment was rendered, on the fifth of November, 1867, in favor of plaintiff, perpetuating the injunction, and condemning the defendant to pay costs, but making no disposition of the intervention; and, on the fourth of November, 1863, the intervenor, as widow and tutrix,, alone appealed.

It is manifest that the judgment is res judicata, as to the plaintiff and defendant, appellees, and can not bo disturbed as to them, and it is difficult to conceive what judgment can be given by us on this appeal that will alter or affect the rights of the several parties. Whatever may be the effect of the judgment, as between the plaintiff and defendant, it does not seem to us that it concludes the rights of intervenor, whose intervention was not passed on by the court below. She did not require a decision thereon; and, with the decision of the main action, the intervention falls. 4 An. 279; 12 An. 460; 14 An. 426.

It is therefore ordered that the appeal herein be dismissed, without prejudice to the rights of the intervenor. Costs of appeal to be paid by appellant.


author: Ludeling, C. J.

text:
    No. 2642.
    Summers & Brannins v. J. Y. and F. V. Hollingsworth.
    The wife can not bind herself for ber husband, nor conjointly with him, for debts contracted by him before or during the community. C. C. 2Í12.
    The question of the effect of the renunciation of the wife’s mortgage can not be examined by the appellate court, if, in answer to the appeal, she fails to ash for the amendment of the judgment in her favor.
    APPEAL from the Thirteenth District Court, parish of Tensas.

      Hough, J. Farrar & Beeves, for plaintiffs and appellants. F. D. Farrar and Samuel B. Walker, for defendants and appellees.
   Ludeling, C. J.

The plaintiffs sue the defendants, husband and wife, in solido, for eight thousand and thirty-five dollars, and for a recognition of their mortgage, executed by defendants to secure the debt. On the twenty-second day of January, 1867, the plaintiffs and the defendants entered into a contract, whereby the plaintiffs agreed to furnish supplies and moneys to cultivate a certain plantation in this State, and the defendants jointly and severally executed _three promissory notes, each for $3000, and they gave a mortgage on lands in this State, a part of which is statod in the act to he community and a part the paraphernal property of the wife; and the wife renounces her legal mortgage on the community property in favor of the plaintiffs.

The only questions presented by the pleadings are, has the wile bound herself for any part of the debt claimed, and is the mortgage given by her on her separate property valid Í

The evidence establishes that the debt created was for the benefit of the community, and the Civil Code declares that the wife can not bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage.” Art. 2412, 14 An. 169.

The question argued in the brief, relative to tho renunciation of the wife’s mortgage, can not be examined by us, as the appellee has not, in her answer to the appeal, asked for the amendment of the judgment in her favor.

It is therefore ordered that the judgment of the district court be affirmed, with costs of appeal.

Rehearing refused.


text:
    No. 2598.
    Widow Charles A. Slack et al. v. Edward J. Gay.
    Steam boilers, usedin a saw mill on a plantation, do not constitute a part of tbe realty, and tlie owner may recover them or their value from a purchaser of the place, although he may have paid the vendor their full price In such a case, the vendee is entitled to judgment against his vendor in warranty for the amount he is condemned to pay the owner of the. boilers.
    APPEAL from Fifth District Court, parish of Iberville. Posey, J.

      Samuel Mathews, ■ for plaintiff and appellant. Barrow <Ss Pope, for defendant and appellee. W. B. Mobertson, for warrantors.
   Ludeling, C. J.

Tho plaintiffs allege that, during the year 1866,. they loaned to J. Walter Stillwell two steam boilers, which wore placed upon the plantation of Mrs. Keep, and were there used in a saw mill;, that the defendant was aware of the fact that the boilers did not belong to Mrs. Keep, when she sold the place to him; and they prayed to be declared the owner of said boilers, and that tho boilers be delivered to> them, or that there be judgment against-the defendant for the value of said boilers, with interest and costs of suit.

Gay filed a general denial; alleged that tho boilers wore attached -to-the soil, and formed a part of the realty which he bought, etc., and ho called his vendor in warranty. Mrs. Keep, called in warranty, denied all the allegations of the plaintiff; claimed to he the owner of the boilers, by different titles derived from Stillwell, and called his legal representative in warranty.

The evidence establishes clearly that the boilers belong to the plaintiff; there is no proof that Mrs. Keep ever acquired any title to them from Stillwell, or any one else.

The evidence in regard to the value of the boilers is conflicting. The estimate placed on them by the witnesses range from $300 to $1000. The owners of the boilers demand that they bo delivered to them; while the defendant resists the demand, and claims the right given him by article 499, Civil Code, to pay their value. Under these circumstance, equity would require that we should not adopt the lowest estimate of their value, as the district judge did, but that we should rather allow the full, but fair, value of the boilers. No one should enrich himself at the expense of another. We think $650 should have been allowed.

It is therefore ordered and adjudged that the judgment of the district court bo avoided and reversed, and that there be judgment in favor of the plaintiffs against the defendant, Edward J. Gay, for $650, with five per cent, per annum interest from judicial demand', and costs in both courts. It is further ordered that Edward J. Gay have judgment against Mrs. Eliza Keep, his vendor and warrantor, for the like sum, with interest and costs. It is further ordered that the demand of Mrs. Keep against Henry S. Slack, administrator and individually, be rejected, with costs.


author: Ludeling, C. J. Ludeling, C. J.

text:
    No. 1965.
    Robert L. Young v. Ship Princess Royal et al.
    The State courts are without jurisdiction to enforce a privilege given by law on vessels for the recovery of damages for a maritime tort. In such cases an admiralty lien is created which can only be enforced m the courts of the United States. 4 Wallace, 434, 561.
    A claim lor damages ex delicto can not be enforced by attachment 12 An. 110.
    In an action for damages against a vessel for a collision, no judgment can be rendered against her ii the evidence shows that she was not in fault, and that she was, at the time of the collision, under the control of a tugboat.

      APPEAL from Fourth District Court, parish of Orleans. Théard, J.
    iJL Randolph, Singleton <& Browne, for plaintiff and appellant. Race, Foster & F. T. Merrick, for defendants and appellees. Honor ds Benedict, for warrantors, appellees.
   Ludeling, C. J.

The plaintiff complains that, by a collision in the port of New Orleans, his flatboat and a cargo of flour were damaged by the fault of those in charge of the ship Princess Royal, to the extent of $1332 18. He alleges that he has a privilege on the ship to secure the payment of the damages ; that her owners are non-residents and unknown to plaintiff, and he prays for an attachment against the vessel and for judgment against the master and owners for the sum above stated, with interest and costs, and with privilege on the ship Princess Royal, her tackle, etc. The usual affidavit and bond for attachment were made, and a writ of attachment issued.

. The defendants appeared, and for answer filed a general denial; they called the master and owners of the tugboat Tuscarora in warranty, alleging that they had the ship Princess Royal in tow, and that they were responsible for any damages done to the plaintiff, etc. They alleged that the master and owners of the Tuscarora are nonresidents ; they allege that under the law of the State they have a privilege on the ship, and pray for an attachment, etc.

The warrantors excepted, on the grounds following: That the court “was without jurisdiction over the matter and things involved in” the suit; that no law authorized the call in warranty; that no-cause of action is stated against the warrantors.

Subsequently they filed a rule to quash the attachment for the reasons following: That the court is without jurisdiction; that no-law of the State accords to the defendant a right to a writ of attachment ; that the affidavit is insufficient; that the damages claimed are not due, and that the bond is not good. The exceptions and rule were dismissed, and the warrantors filed for their answer a general denial.

Later in these proceedings the defendants and warrantors filed an exception to the jurisdiction of the court, on the ground that the. case was within the exclusive admiralty and maritime jurisdiction of the United States courts.

This exception was sustained, and the suit was dismissed, and the plaintiff has appealed.

If this action be considered as a proceeding in rem for the enforcement of a privilege given by law (Revised Statutes of 1855, p. 538, sec. 9) on the vessel, for the recovery of damages for a tort, the State courts are -without jurisdiction. The case would be one of maritime tort, creating an admiralty lien, which can be enforced against the ship only by the courts of the United States. 4 Wallace, 424, 561.

If the suit be regarded as an attachment, whereby the absent defendants are brought into court through their property, the suit can not be maintained, for, under the settled jurisprudence of this State, attachment suits can not be maintained on a claim for damages arising ex delicto. 2 An. 943; 3 An. 436 ; 12 An. 110.

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

•On Application por Rehearing.

Ludeling, C. J.

We should have stated that no judgment could be. rendered against the defendants because they were not in fault, their ship, the Princess Royal, being, at the time of the collision, under the control of the tugboat Tuscarora. See 20 An. 495, Sanford v. Clapp.

Rehearing refused.


text:
    No. 1919.
    F. Boisdore v. George and Robert Malcolm.

      2kq mortgage granted by article 3282 of tlie Civil Code in favor of tlie tntor on tlie property of his ward for advances made, has effect against third parties only from the date of inscription. Tacit mortgages exist only in favor of those persons included in the exceptions established by law, and no exception is made in favor of tutors. The mortgages granted in their favor must, to havo effect, be recorded.
    The rank of mortgages, which aro required to be recorded to give them validity, must be determined by the date of inscription.
    APPEAL from Second District Court, parish of Orleans. Thomas, J.

      L. Charvet and E. Bermudez and 8. & J. L. Belden, for plaintiffs and appellees. L. Oastera and 0. Hunt, for defendants and appellants.
   Howell, J.

This is a controversy between mortgage creditors, in which the only question pressed on our consideration by the plaintiff and appellant is as to the necessity of inscribing the legal mortgage granted in article 3282 of the Code in favor of tutors on the property of minors, as a security for the advances which they may have made, and which is therein declared to be like the mortgage in favor of the minors. Ho contends that, because the mortgage of tutors is in letter and spirit a like mortgage with that granted in favor of minors under said article, it must be preferred over subsequent conventional mortgages exactly in the same manner as the mortgage of minors, without being inscribed; that because declared to bo like in kind by said article, it is like also in its operations,-effects, advantages and privileges, and that the provision of the law which dispenses the minor’s mortgage from inscription embraces also the tutor’s mortgage.

To this proposition wo can not assent. Article 3297 declares that among creditors, the mortgage, whether conventional, legal or judicial, has force only from the time of recording it in the manner hereinafter directed, except in the cases'mentioned below.”

Article 3298 says : “ A mortgage exists without being recorded, in favor of minors, interdicted and absent persons, on the property of their tutors, curators, and others, over whose property the law grants them a tacit mortgage, either general or special.

The mortgage of the wife on the property of the husband for her dotal rights, does also exist without being recorded.”

This latter clause has been construed to apply also to the wife’s paraphernal rights, which, it has been thought, was judicial legislation, but which may possibly be warranted by the- language of the second clause of article 3333. The reason upon which the exception •established by this article rests, .is that the persons thus protected are ■unable to act in their own behalf. This reason does not exist in the ease of tutors who act for themselves. The exception is in favor of the persons and not the rights protected. This distinction is apparent in all the legislation on the subject. In the chapter on inscription, article 3317 declares that all mortgages, whether conventional, legal or judicial are required to be recorded in the manner hereafter pro-Tided,” and article 3333, in the same chapter, directing the reinscription, exempts the mortgages in favor of the wife, for her dower and other claims, and in favor of minors, interdicted and absent persons.

And so in the act of 1843, directing how inscriptions shall be erased, this distinction is maintained In none of the provisos, exceptions or exemptions in the law is the mortgage of the tutor embraced. Sxpressio nmius est exclusio alterius.

The law seems to bo positive that among creditors mortgages will have effect only from the date of inscription, except mortgages in favor of wives, minors, interdicted and absent persons.

Judgment affirmed.


author: Howe, J.

text:
    No. 2644.
    Volney E. Ogle et al. v. J. C. King et al.—Diggs & Michie, Intervenors.
    The hypothecary right granted by C. C. 1626, in favor of a particular legatee upon the immovables of a succession, is a legal, mortgage; and it must be recorded, in order to maintain its priority, as against a conventional mortgage, imposed by the universal legatee, and duly recorded. C. 0. 3297.
    APPEAL from the District Court, parish, of Tensas. Sough, J.
    ,£JL J. Or- Leach and A. S. Ogden, for plaintiffs and appellees. Sparrow c6 Montgomery, Beeve Lewis and Farrar & Beeves, for defendants and appellees. Mayo <& Spencer and Aroni & Collier, for intervenors and appellants.
   Howe, J.

Rodney C. King died in 1853, leaving a will, by which he constituted J. C. King and Prosper King, then minors, his universal legatees, and bequeathed to Volney E. Ogle and Ellis K. Ogle the sum of $25,000. He leit no forced heirs.

The defendant, Kibbe, dative testamentary executor, and tutor of the Kings, rendered his final accounts in 1859, which were homologated.

In the same year, the Kings, one being of age, and the other eman-. cipated, took possession of the immovables of the succession, consisting of a plantation, etc. In .1801, they mortgaged the property to secure notes held by the intervenors, Diggs & Michie, and which were given for advances and supplies to carry on the plantation.

This action was instituted in 1866, to enforce the claims of the Ogles, as particular legatees, for the sum of $25,000, with interest, and to have the mortgage therefor recognized as the first mortgage on the property. The Kings are sued jointly, as debtors of the legacy, in possession of the plantation, and the defendant as executor, who had wrongfully turned it over to them in 1859.

The intervenors asserted their priority, in virtue of their conventional mortgage, recorded March 14, 1861.

The judge a quo was of opinion that, by the terms of the testament, the plaintiffs were to be paid their particular legacy only from the revenues of the plantation, and gaye judgment" recognizing this right, with, mortgage, as claimed. No judgment was given against Kibbe, upon the claim made against him, as executor, and for having wrongfully turned over the plantation to the Kings.

Neither plaintiffs nor defendants have appealed, and we can not» therefore, consider the merits of the judgment, as between them, nor the questions therein involved.

It was, however, further decreed that the intervenors have judgment against the Kings for the amount of their claims, with mortgage subsequent to that of plaintiffs. The only question before us is that of priority, as between the mortgage of the legatees and that of the intervenors.

Article 1626 of the Civil Code declares that the heirs of the testator, or the debtors of a legacy, shall be personally bound to discharge it, each in proportion to the part that falls to him in the succession, and that they shall be bound by mortgage for the whole, to the amount of the value of the immovable property of the succession withheld by them.

This article is identical with article 1017 of the Code Napoleon, and there seems to be no difference of opinion among the French commentators as to the character of the mortgage thus established. It is a legal mortgage. The action to enforce it is a hypothecary action— the one instituted by the plaintiffs in this case to establish and cause to bo enforced the mortgage which they claim on the immovables withheld by the Kings, the debtors of the legacy. Rogrou, Codes Franpais, vol. 1, p. 194; Tonllier,-vol. 5, No. 567; Persil’s Regime Ilypothecaire, vol. 1, p. 373, et seg; Troplong flypothéques, vol. 2, No. 432, Aer.; Meilin Repertoire, Legataire, 36, par. II.

And the same writers appear to agree that this legal mortgage must be registered, to maintain its priority, as against mortgage creditors in .whose favor the immovables of the inheritance may be affected by the heir or universal legatee, in possession. The same just rule would seem to be established by our Civil Code. . “Among creditors, the mortgage, whether conventional, legal, or judicial, has force only from the time of recording it, in the manner hereafter directed, except in the cases mentioned below.” Article 3297. The only mortgages that exist without inscription are those in favor of minors, interdicted and absent persons, and married women. Article 3298. The legal mortgage of the particular legatee against the heirs, on the immovables of the inheritance, which they detain or withhold, is not excepted from the necessity of registry, and we do not feel authorized to make the exception. Se case of Boisdoró v. Malcolm, this day decided. The rule which we thus feel called upon to recognize, is one of eminent justice in this case.

The executor, Kibbe, who was also tutor of the Kings, rendered his final accounts in 1859. The Kings, having each become sui juris, took possession and control of the plantation in the same year. Two years after, they borrowed money upon the notes held by the intervenors,. and, to secure these notes, executed the conventional mortgage. The proceeds went to carry on the place.

Five years after, in 1866, this suit is instituted, with intent, on the-part of the particular legatees, to obtain a preference over those who have thus furnished money to carry on the plantation, out of the net product of which their legacy was to be paid. It would seem that, in such a case, strict law and equity must coincide.

Much has been said, in the argument of this cause, of the action of separation of patrimony, and the privilege, or, perhaps more properly,, right of preference, provided by article 3242 of the Civil Code. We do not think that the questions raised by this branch of the discussion require consideration in this case. This is not an action of separation-of patrimony. We do not find that the plaintiffs have ever instituted any- such action, and it may be doubted if it would lie, in regard to a-succession accepted, in legal contemplation, with benefit of inventory.. But the article throws some light upon the propriety, possibility and method of recording this legal mortgage, for it declares that the legatee-who resorts to the action of separation, can preserve his privilege only by recording in the mortgage office the evidence of his claim on the property of the succession, within three months after it is opened.

Considering, therefore, that the legal mortgage of the plaintiffs was-not recorded prior to that of intervenors, we must conclude that there-was error in the judgment, to the prejudice of the latter.

It is therefore ordered and adjudged that the said judgment, so far as it accords to the intervenors a mortgage subsequent in rank to that of plaintiffs, be avoided; that the intervenors’ mortgage be decreed to-be prior in rank to that of plaintiffs, upon the property described in the act by which their notes are secured; that, in all other respects,, the said judgment remain undisturbed, and that the plaintiffs pay tho-costs of appeal.


text:
    No. 2650.
    Honore Pottier v. Wm. M. Strickland et al.—Wm. M. Strickland v. Hyatt and Gillespie.
    The sale of a judgment will be staid by injunction, if the judgment debtor has been notified, of the transfer before the seizure was made, provided the transfer was made bona fide.

    APPEAL from Thirteenth District Court, parish of Tensas. Hough, J.

      Julius Aroni, for plaintiff and appellant. Jarrar & Jeeves, for defendants and appellees.
   Ludeling, C. J.

On the thirteenth day of April, 1868, HonoréPottier obtained an injunction to prevent the defendants from selling a judgment, rendered in the suit of R. C. Hyatt v. Joseph Dunbar, on. the ground that the judgment belonged to him.

The evidence satisfies us that the judgment should have been taken originally in favor of Pottier, and that tho transfer thereof by Hyatt, -after the judgment had been obtained, was made bona fide, and that the said transfer was notified to tho judgment debtor before the seizure in this caso. C. C, arts. 2612, 2C13.

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


text:
    No. 2081.
    T. Barnett, Wife, etc., v. P. Bernstein, Tutor, et al.
    .-A judgment of the court ordering a partition of succession property in kind, to be made in ■ conformity with a report of experts and demanded by all parties in interest, will not be set aside because a new inventory and appraisement was not made, as required in such cases by article 1218, Civil Code.
    * PPEAL from the Second District Court for the parish of Orleans. JA Duvigneaud, J.
    Hyman, Wallace & Ilandlin, for opponents and ■■appellants. JE. Howard MeOaleb, for appellees.
   Howell, J.

There being no sufficient evidence before us that the •appellants have voluntarily executed tho judgment appealed from, and ■the matter in dispute being over five hundred dollars, there is no ground for dismissing the appeal, and the motion is overruled.

The appeal is taken from a judgment dismissing an opposition to the homologation of an act of partition before a notary, under a judgment ■of the court ordering it to be made and referring tho parties to -said notary.

Tho only ground of opposition which can be considered on this ■appeal is the failure to make an inventory within the twelve months preceding of tho property to be partitioned, which consisted of two houses and lots, which tho record shows were considered by both parties to be of equal value and were held in common by two owners, ■tho plaintiff on the one part and tho heirs of her deceased sister, Mrs. Bernstein, on the other.

Tho object of the law in requiring a recent inventory is to secure an ■equal and just partition of the property in value, but where the parties agree, and other evidence shows, as in this case, that the lots or portions are equal, and there is nothing to show a suggestion from any party that the value is different from that in the last inventory taken, or that a new appraisement was demanded, the omission to make a formal inventory by a notary is not fatal.

Article 1249 says: It is in tho case proscribed in the preceding article that the judge is bound to order a new appraisement. The •exact conditions contained in that article (1248) do not appear in this proceeding.

Both parties seem to have demanded a partition in kind, prayed the ■appointment of experts to report thereon, and asked to be referred to a notary. No demand was made for a new inventory and no fraud is suggested. The experts were appointed, and they reported in favor of a partition in kind of the two pieces of property, and the judge rendered a judgment decreeing a partition and directing the property to be divided into equal parts — one to plaintiff and the other to the heirs of Mrs. Bernstein. This judgment has become final. In the act of partition the value of each property is stated to be $11,000. All the special tutors to the heirs of Mrs. Barstcin, who are lawyers, signed this act.

Under these circumstances, we think tho objection should not prevail. No good purpose would be served by another act of partition.

Judgment affirmed.


author: Taliaferro, J.

text:
    No. 6489.
    A. B. James v. Johnson & Brother—G. W. Johnson, Intervenor.
    •Plaintiff, a merchant in the city of New Orleans, had for his customers tho defendants, residing at DeKalb, Texas. Defendants became largely indebted to plaintiff. A brother cf defendants, who had been their clerk, came to New Orleans with drafts in favor of tho defendants, and some money, and purchased a lot of new goods. Immediately thereafter tho plaintiff, being a creditor, attached the new goods thus purchased. On trial judgment was rendered in favor of the attaching creditor. The brother who had formerly been the •clerk <.f the defendants, with no visible means or business to indicate capital, intervened in the attachment suit, and claimed that he had made tho purchases of the goods attached on his own account; that he had bought the store in Texas and was doing business for himself. Tne evidence failed to show a sale bofore tho attachment was mado, and also iailed to show any consideration thereior, or that the money with which tho goods attached were purchased was his own: Ilold — That, under this state of facts, the sale of the store, in Texas, and the protended ownership of the stock of goods bought in the city of New •Or.eaas, amounted to a fraud on the part of the intervenor and delendants, and was, therefore, nail and void, ■
    APPEAL from tho Sixth District Court of New Orleans. Howell, J.

      Hunton Miller and Elmore c6 King, for plaintiff and appellee. Emerson <& Huntington, for Johnson, intervenor, appellant.
   Taliaferro, J.

The plaintiff, in May, 1856, attached certain merchandise as property of their debtors, Johnson & Brother, residents of Texas. This lot of merchandise was claimed by the intervenor as his property, having purchased it, as ho averred, on his own account. There was judgment in favor of the plaintiff, witli privilege upon the goods attached and for costs. This judgment was rendered on the second of March, 1857. Nearly two years after, in January, 1859, judgment was rendered in favor of the plaintiff against the intervenor.

.The facts appear to be that Johnson & Brother, who were merchants of DeKalb, Texas, had been in the habit for several years previous, of buying their goods in New Orleans, and were considerably in arrears with the merchants in the city in the year 1856. In the spring of that year George W. Johnson, the intervenor, who had formerly been the clerk of his brothers, Phineas and Lewis, comprising the firm of Johnson & Brother, came to New Orleans and purchased with drafts drawn in favor of Johnson & Brother, and with part cash, the merchandise which plaintiff attached as the property of Johnson & Brother. The intervenor claimed to have purchased the stock of goods of Johnson & Brother at DeKalb, and that he was doing business there on his own account. The evidence taken in the case is copious, and much of it was taken under commissions, addressed to various places. A review of it inclines us to adopt the conclusion arrived at by the jury before whom it was tried in the court below, and that is, that the pretensions of' the intervenor to ownership of the property was a simulation and fraud, attempted to screen the property of the firm of Johnson & Brother from the reach of their creditors. Various, facts, raising a strong presumption against the fairness of his dealing, are shown. He came a year or two previous to 1856 to DeKalb, in Texas, having but little visible means, and engaged as a clerk for the house of Johnson & Brother. He stated that a short time .before coming to New Orleans in 1856, lie had bought the stock of goods and the assets of Johnson & Brother; that the consideration of the purchase was the indebtedness of the firm to him in the sum of $2350, for which he held their note. The testimony was taken, first, of Phineas Johnson, and afterwards of Lewis Johnson, to establish the indebtedness. The testimony of these witnesses given in favor of the intervenor is quite contradictory. The former stated that no assets of the firm had been transferred to the intervenor; the latter that the assets were transferred to him. One of them fixed the indebtedness of the firm to the intervenor at $2350; the other at a fraction over $4000. The sale of the goods at DeKalb was not known in that place until after the attachment of the plaintiff took place. The intervenor himself, being questioned by a party in interest as to the drafts he used in the purchase of the merchandise in New Orleans, said, at first, that the firm of Johnson & Brother had no interest in these drafts, and, afterwards, on the same day, admitted that Lewis Johnson had an interest in them.

In fine, the case has all the usual surroundings of fraud and simulation. Johnson & Brother were heavily in debt in New Orleans. The pretended purchaser of their goods and assets was their brother, previously employed by them as their clerk at a small salary, and without means of his own. The secrecy of the sale, which appears to have been a device resorted to after the plaintiff’s suit was brought, and which was not published in the DeKalb newspaper until after that event.

We think the fraud and simulation fully made out. ' :

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs in both courts..

Howell, J., recused.


author: IÍudeling, C. J.

text:
    No. 1993.
    Richard Johnson v. John H. Gennison—E. M. Ivens, Appellant.
    A judgment ordering the sheriff and. seizing creditor to return to tho purchaser tho price of the adjudication ot property sold at sheriff's sale is equivalent to a judgment formally annulling the adjudication. Therefore, when such a judgment has been rendered, and not appealed from, tho surety on the appeal bond, is estopped from setting up on a rule to show cause why he should not pay the judgment, that the first adjudication is still in force, because it has not been legally annulled.
    APPEAL from Sixth District Court, parish of.Orleans. Buplantier, J.

      A. Oagdbat and J. JE. Wallace, ior plaintiff and appellee. Lacey <& Butler, for defendant and appellant.
   IÍudeling, C. J.

The plaintiff, having obtained a judgment against Gennison, the latter appealed, and gave a bond for a suspensive appeal, with E. M. Ivens as his surety.

The Supreme Court affirmed tho judgment of the district court.

• On the thirtieth of June, 1866, property of the defendant was sold, under execution issued in the above entitled cause, for enough to satisfy the judgment. On the twenty-third of July, Mrs. Emanuel, the purchaser, instituted proceedings against Johnson, the judgment creditor, Gennison, the debtor, and the sheriff, to compel the sheriff to return the purchase price, on tho ground that the property described in the advertisement and act of sale did not belong to defendant.

There appears to have been a misdescription of the property seized. There was judgment in favor of Mrs. Emanuel, and the money was refunded to her. No appeal has been taken from that judgment. It is contended now that the delendant, Gennison, was not notified, and wuis not a party to that suit.

The sheriff’s return shows that “a copy of the within rule was served on John H. Gennison, at his domicile, No. 64 Villere street, by leaving the same in the hands of Miss Francis Gennison, a free person1, apparently over the age of fourteen years, living and residing at the said domicile, and whose name and other facts I learned by interrogating her, the said John H. Gennison being absent from home at the time of said service.”

On the tenth of April, 1867, an alias writ of fieri fiadas was issued upon the judgment rendered in favor of Johnson against Gennison— property was seized and sold. There heiDg no other property of the defendant to seize, the writ was returned unsatisfied. On the fifth of August, 1867, the plaintiff took a rule upon Edmund M. Ivens, the surety on the defendant’s appeal bond, to show cause why he should not be condemned to pay the balance of the judgment, after deducting the net proceeds of the sale made under the alias writ.

The reasons assigned by the surety why judgment should not he rendered against him are, that the proceeds of the first sale were sufficient to satisfy the debt against Gennison, and that the adjudication to Mrs. Emanuel was not absolutely void, nor has it been legally-annulled.

There was judgment ordering the sheriff and judgment creditor to-refund the price of the adjudication to Mrs. Emanuel, as already stated, and that judgment is now res judicata.

The court a qua rendered judgment against the surety, and we have-discovered no error in it.

It is therefore ordered that the judgment of the lower court be-affirmed, with costs of appeal.

Eekearing refused.


text:
    No. 2657.
    Matilda J. Bowie v. Samuel M. Davis.
    An act of donation inter vivos lias no effect against third parties if it has not been registered in the proper book of donations kept in the parish where the property is situated. O. CY 1541, 1542, 1513, 1544, 1545.
    In this case an imperfect donation was made in favor of Mrs. Bowie, a married woman: imperfect, because of the reservations by the donor in the act. Afterwards, and before the donation took effect, the donor and his wife, and the donee and her husband, made a notarial act, which was duly recorded, interpreting and construing the act of donation, declaring its meaning to be a sale of the property, and not a donation. Before, however, this act construing the donation was passed, the property was sold at marshal’s sale by the creditors of tbo donor, and the husband of the donee became the purchaser. The husband of the donee having purchased the property described in the act at marshal’s sale* executed a mortgage thereon for $70,000, and the wife (the donoe) made a renunciation of her rights in the act: Held — That her joining her husband and the donor in an authentic act of interpretation of the meaning of the act of donation, which was placed of record* with her subsequent act of renunciation in the act of mortgage given by her husband, sho was estopped and precluded from claiming the property under the donation, which had never beon properly registered.
    APPEAL from the Thirteenth District Court, parish of Tensas.

      Hough, J. A. JH. & H. H. Ogden and Mayo & Spencer, for plaintiff and appellant. Thomas P. Farrar, for defendant and appellee.
   Ludeling, C. J.

This is a petitory action by a married woman, separated in property from her husband, to recover a tract of land situated in the parish of Tensas. She claims to be the owner of the property by virtue of an act of donation from her brother, John K. Euth, made in June, 1850. The act recites for and on account of the love and affection which he has and bears towards his sister, Mrs. Matilda J. Bowie and her children, and for diverse other good and sufficient reasons, he does give, grant, donate and transfer all and singular his right, title and interest in” the property. The act iurthcr recites that it is expressly understood and agreed that the proceeds of the crops of said Franklin plantation are to be subject to John K. Euth’s disposition, until the full and final payment of the debt which is now due by said place' to John Armfield, and that the said transfer shall not, in any manner, interfere with the mortgage now held by John Armfield.”

The evidence shows that the plaintiff, who was then not separated in property from her husband, went with him to live on the plantation, and that out of the products thereof, Dr. Bowie, her husband, paid the debts due to Armfield. On the tenth of February, 1859, John K. Ruth and his wife, and Mrs. M. J. Bowie, assisted by her husband, in a notarial act, passed 'before A. Mazureau, a notary public, declared that John Armfield had purchased said plantation, at a marshal’s sale, under an execution issued against John Ruth, the father of John K. Ruth and Matilda J. Bowie, and that he had transferred the property to John K.. Ruth, under an agreement that he should transfer the property acquired by him at the marshal’s sale to some one of the children of John Ruth,, for the price by him bid for the property, and that the parties intending to substitute Matilda J. Bowie and her husband in the place of John K. Ruth, they erroneously called the transfer from John K. Ruth-to Matilda J. Bowie a donation. That they all intended it to be a sale of the rights and interest of said John K. Ruth to said property to-Mrs. M. J. Bowie and her husband, Allen B. Bowie, on their assumption-of the debt due to Armfield; and that said Allen B. Bowie had discharged the debt; J ohm Armfield also signed that act. It was duly recorded.

About seven months after this public declaration of the understanding and intention of the parties to the act of twentieth June, 1850, Allen B. Bowie borrowed $70,000 from Levcritcli, and ho executed a. mortgage on the Franklin plantation (being the property mentioned in the transfers aforesaid), to secure the payment thereof. In this act of mortgage, Mrs. Bowie joined to renounce her mortgage on the property in favor of the mortgagee. On the seventeenth May, 1860, Mrs. Bowie sued her husband for a separation of property and for a dissolution of the community of acquets and gains, and she obtained a judgment against him on the following day for a large sum of money and for the Glen Allen plantation, her paraphernal property, etc.

Although the “Franklin plantation ” was then in the possession of her husband, she did not claim it to belong to her.

In the meantime Stephen Duncan had acquired the mortgage notes of Allen B. Bowie, given for the money loaned by Leveritch, and he sued Allen B. Bowie. Judgment in his favor, making executory the mortgage on the Franklin plantation, was rendered on the twenty-fourth of November, I860.

On the second of March, 1867, the Franklin plantation was sold under execution issued under the judgment in the suit of Duncan v. Bowie, to Samuel M. Davis for $34,524 90. On the thirty-first day of October, 1868, this suit was instituted.

We do not think the plaintiff has made out her case. She claims under the act of twentieth June, 1850, as a donation from her brother. As an act of donation it can have no effect against the defendant, as it was never recorded in tlie book of donations, which is kept in the parish where the property is situated. Article 1544 C. C., and articles 1541,1542, 1545. Acts of 1855, 335.

Besides, if she had had any title to the property, she would have been estopped from claiming the property of the purchaser by her acts •above enumerated. Judice v. Kerr, 8 An. 465.

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

Mr. Justice Wyly dissents.

Rehearing refused.


author: IIoweix, J.

text:
    No. 2013.
    B. Avegno v. S. Johnston—G. Merz, subrogated.
    TVhere an appeal is taken by petition from an injunction suit, and the appellant iails to have tbsurety on tlie bond cited with other parties, the appeal will be dismissed for wantof proper parties. The surety on the injunction bond is a necessary party to the appeal, and must bo cited.
    APPEAL from Fifth District Court, parish of Orleans. Beaumont, J.

      Jlornor & Benedict, for appellants. F. Bermudes, for appellees.
   IIoweix, J.

A motion is made to dismiss this appeal, on the ground that the surety on the injunction bond given by the plaintiff and -appellee, has not been cited as appellee.

It may be considered the settled jurisprudence of this court that the •surety on an injunction bond is a necessary party to an appeal, and when the appeal is taken by petition, he must be cited, otherwise the appeal will be dismissed for want of proper parties, where, as in this case, the appellant fails to have the surety cited with other parties. •See 12 R. 203; 3 An. 318 ; 4 An. 514, 577; 10 An. 347; 11 An. 409; 19 An. 291; 20 An. 70.

It is therefore ordered that the appeal herein be dismissed, with •costs.


text:
    No. 2634.
    The State of Louisiana, for the use of the City of New Orleans, v. Phillip Dopf and J. B. Nick.
    The Supreme Court will ex officio notice the fact, and dismiss the appeal, if the amount claimed does not exceed five hundred dollars at the time judicial demand was made.
    APEAL from Fifth District Court, parish of Orleans. Beaumont, J.

      F. Mieldnard, for plaintiff and appellant. McGloin & Kleinpeter, for defendant and appellee.
   Ludeling, C. J.

The plaintiff sues for the recovery of a forfeited ■bond for five hundred dollars, with legal interest from judicial demand.

It is our duty to notice that this court is without jurisdiction in the case, as the amount claimed did not exceed five hundred dollars when judicial demand was made.

It is therefore ordered that the appeal be dismissed.

Rehearing refused.


text:
    No. 2526.
    Mrs. Mary Ann Fisk v. F. M. Fisk, her Husband.
    A preponderance of testimony in favor of a marriage, is sufficient to base a judgment1 for alimony, pending tlie suit lor divorce; but such judgment, rendered on rule, will not preclude the husband from urging the plea at the final trial that there was no marriage.
    APPEAL from the Sixth District Court of New Orleans. Cooley, J.

      A. If. & H. If. Ogden, for plaintiff and appellee. M. if. Cohen & Son and W. H. Hunt, for defendant and appellant.
   Wyly, J.

Pending the contest for divorce in this case, the plaintiff filed a rule for alimony, and the.defendant has appealed from, the judgment on that rule, which is as iollows: '

In the matter for the prayer for alimony, filed in this case by the plaintiff, the court, for the reasons assigned in the written oifinion this day filed, ordered and adjudged that the prayer for alimony be allowed, and that plaintiff, Mary Ann Fisk, wife of Francis M. Fisk, do have and recover from the defendant, the said F. M. Fisk, the sum of two hundred dollars, as alimony, payable monthly, during the pendency of this suit and the further order of court.”

The.case not having been tried on its merits, is only presented for consideration on the question whether the plaintiff is entitled to a sum for her maintenance during the pendency of the suit, proportioned to the means of the defendant.

The demand for alimony is resisted by the defendant, on the ground that he never was married to the plaintiff; also that he had not the capacity to contract it, being at the time a married person.

To establish the marriage, the plaintiff introduced proof of cohabitation, general reputation, and her own direct testimony, in which she swears positively that she was married to the defendant in this city, on the twenty-seventh day of June, 1842. She also introduced proof of the admissions of the defendant, in her presence, that the marriage occurred.

On the other hand, the defendant, in testifying, denied positively the marriage; he also introduced proof to establish, by reputation, his marriage with another person, in order to show Ms incapacity, at the time, to contract the marriage with the defendant.

The evidence is extremely conflicting and unsatisfactory. It was carefully analyzed by the district judge, as appears in his written opinion in the record. Having the most important witnesses before him, he had a better opportunity than we have to ascertain their eredibilty, and to determine what weight ought to be given to their evidence.

An examination of the proof inclines us to concur in his opinion, that the plaintiff should have the amount which he awarded for her maintenance during the pendency of the suit.

We attach no importance to the evidence given by the defendant, conflicting with the sworn declarations of the plaintiff, as to the reality of the marriage, because his credibility was successfully impeached.

The testimony of the plaintiff, which was not discredited, added to the evidence in the record, showing cohabitation and a marriage, by reputation, we think sufficiently preponderates over the countervailing evidence at least to entitle her to alimony pending the litigation of this case on its merits.

Without impairing the right of the defendant to plead to the merits, that there was no marriage, we think that fact is made sufficiently to appear, at this time, to entitle the plaintiff to the sum which was allowed for her maintenance pending this suit.

It is therefore ordered that the judgment on the rule be affirmed, with costs, without prejudice to the defendant to urge in defense, on the merits, that there was no marriage.

Rehearing refused.


text:
    No. 1909.
    A. Rochereau v. E. Dupasseur.
    A mortgage loses its rank if it is not reinsoribed ■within ten years, and a recital in a second mortgage, before the ten years have expired, that a former mortgage has been inscribed against the same property, will not operate a reinscription of the first mortgage, so as to preserve the rant of the first mortgage over that of the second. 21 An. 204
    The fact that the second mortgagee had notice of the existence and inscription of the first movt. gage, will not dispense the first mortgagee from the effect of failure to reinscribe within ten years. 21 An. 427.
    APPEAL from the Sixth District Court, parish of Orleans. Théarcl, (Judge Fourth District Court), presiding.

      Johnson <£ Denis and Lea, Finney <& Miller, for plaintiff and appellee. 0. JRoselius and Alfred Philips, for defendant and appellant.
   Howell, J.

The plaintiff seeks to enforce against the property of defendant, a third possessor, a mortgage which was recorded on the twentieth of March, 1858.

The defendant holds by virtue of a sale made under a judgment recognizing a mortgage and vendor’s privilege, inscribed on the eighth of July, 1852, and reinscribed on the fifteenth of May, 1865.

He contends that this reinscription was made as soon as it was possible for him to do so, and he introduced proof that unsuccessful efforts, were made from May to November or December, 1862, to get a permit from the military commander in this city to go to the parish of St. Charles, where the property is situated, to reinscribe the mortgage; in December, the permit was obtained, and a messenger sent to attend to it, but the courthouse was locked up, and the key in possession of •¡¡he sheriff or his deputy, who were absent. Two similar efforts were, afterwards made, with like result.

The recorder’s office was open in September, 1864; the reinscription was made in May, 1865. There was, then, a time during which it could have been made, even if the causes shown would have excused the defendant, and saved the effect of inscription.

He contends, further, that a judgment rendered by the Second Judicial District Court, in the case of Jacobs v. Sauvé, the original vendor and vendee, ordering the money claimed to be brought into court, uperseded the necessity of reinscription, as a judgment is the highest evidence of a claim, and all other evidence of the debt or other legal right, is merged in the judgment.

This is a confounding of the evidence of a debt with an act of mortgage securing the debt, and by article 3333, C. C., a reinscription can be made only in the manner that the inscription is made.

But he contends that, as to the plaintiff, a reinscription was unnecessary, because, in his act of mortgage, the one under which defendant holds, was recited, and plaintiff can not be considered a third persons but is affected with knowledge, and bound as though he were a party, under articles 3314, 3315, 3316, C. C.

This point was directly put in the case of Britton & Koontz v. Janney, 21 An. 204, and decided adversely to the position of defendant herein. It was in these words: The reinscription of their mortgage was rendered unnecessary by the inscription of the Shaw mortgage, wherein their note and mortgage were clearly set forth; ” that is, as counsel say in this caso, “ by an acknowledgment of defendant’s mortgage by plaintiff himself, in an authentic act, to which he is a party, and under which he claims his mortgage rights, a reinscription was rendered unnecessary.”

The Shaw mortgage, in the case cited, must have contained a recital and acknowledgment of the Britton & Koontz mortgage, to the same purport and effect as that of the plaintiff here. It was held in said! case that this did not operate a reinscription of the acknowledged mortgage, nor supply the omission to reinscribe as the law requires, and for the object intended. Mrs. Shaw, by the said recital, in her act of mortgage, had the same knowledge of Britton & Koontz’s mortgage as plaintiff, Eochereau, had by the like recital and acknowledgment, in his act, of the existence of the defendant’s mortgage. The failure to reinscribe in each case produces the same effect, that is, the loss of the rank held by the mortgage which should have been reinscribed.

A reinscription is necessary, and it must be made in the manner proscribed by article 3333 of the Code. To adopt the theory of defendant would be an evasion, if not a total overthrow of our. system of registration established by existing laws.

In the case of Harang v. Plattsmier, 21 An. 427, we held that knowledge is not equivalent to registry in Louisiana, but that under the law, as it now stands, which must control articles 3315, 3316, if inconsistent, an unrecorded act of mortgage is utterly null and void, except between the parties to the act, and we have concluded to adhere to that rilling. Rochereau, the plaintiff, was not a, party to the act between Jacobs and Sauve, under which the defendant, Dupasseur, holds.

All the questions of law raised in this case have been passed on by this court, and arc considered settled.

The motion to dismiss is unfounded

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