text:
    A. W. Merriam v. The City of New Orleans.
    Where the language of a city ordinance is ambiguous and susceptible of two different significations, one of which is against law, the court will ascertain and give effect to the intent and meaning of the ordinance, provided the same be not contrary to law.
    The city ordinance which declares that “ a tax of sixty dollars shall be assessed and collected from every keeper of a billiard table, the whole tax bcin/j levied on cadi and every billiard table11 was intended to imposo a license tax upon the particular calling or business of keeping a billiard table, and not a proporty tax upon the tablo itself.
    Such a tax is equal and uniform upon all persons engaged in that kind of business.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      J. Livingston, for plaintiff. J. L. Michel, for defendant and appellant.
   Land, J.

Section 102 of the charter of the city of New Orleans, approved March 20th, 1850, provides, that the city of New Orleans shall have power to levy taxes, commonly known as licenses, upon trades, professions, callings, and other business carried on, and upon carriages, hacks, drays, carts, aud other vehicles used in said city; and said taxes, commonly known as licenses, laid as aforesaid, shall not be construed to be a tax on property, within the meaning of sections 36, 38 and 42 of this Act. Sess. Acts 1856, p. 158.

In pursuance of this section, the Common Council of the city of New Orleans passed an ordinance, approved December the 5th, 1856, and numbered 3671, to establish a uniform rate of taxes and licenses on professions, callings and other business, and on carriages, hacks, drays, and other vehicles; and by the 34th section thereof levied a license tax upon the keepers of billiard tables, in these words : Every keeper of a billiard table, the whole tax being levied on each and every billiard table, sixty dollars.”

Under this ordinance, the plaintiff paid the license tax on eight billiard tables on the 31st of January, 1857, and on the 1st of March, 1858, paid the same tax on sixteen billiard tables, amounting to the sum of $1473 60. These payments were made under protest, and this-suit is brought to recover back the taxes thus paid, ou the ground, that the tax was illegal, unequal and unconstitutional.

The plaintiff contends that the tax is upon his property, to-wit, his billiard tables, and that the ordinance levying the tax is illegal and void — for the reason that it contravenes section 42 of the charter of the city of New Orleans, which is in those words : that the Common Council of the city of New Orleans shall, for the purposes of this Act, once, and not oftener, in each and every year, lay an equal and uniform tax upon all property, real and personal, in said city ; but said tax, added to the Consolidated Loan Tax, and to the the special tax for payment of the annual iutcrest on the bonds issued by the city for subscriptions to the stocks of the New Orleans, Opelousas and Great Western Railroad Company, the New Orleans, Jackson and Great Northern Railroad Company, and the Pontchartrain Railroad Company, shall not, in the aggregate, be more than one dollar and fifty cents on one hundred dollars of valuation, except in case of invasion or insurrection ; provided it be sufficient to pay the interest on the consolidated debts and railroad bonds issued by the city of New Orleans.

The plaintiff further contends, that if the tax be a license tax, in the sense of section 102 of the charter, that the ordinance levying it is likewise illegal and void — for the reason that it violates the constitutional, principle of uniformity and equality in taxation. First, that this tax was not intended by the Common Council to be a tax on property, in the sense of section 42 of the charter, is evident from the title of the ordinance, which is “ An Ordinance to establish a ■uniform rate of taxes and licenses on professions, callings and other business, and on carriages, hacks, drays, and other vehicles,” as well as from the nature of the taxes assessed by the ordinance upon the various professions, trades, callings, &c., therein specially mentioned.

P. E. Bonford and J. Livingston, for re-hearing, argued :

The question in this case is one of construction, and its solution depends upon the proper application of principles which have been repeatedly recognized as controlling the subject.

The city of New Orleans derives its power of taxation from legislative grant. As was said of the corresponding power in the late general council of the city, the authority exercised by it in levying taxes, is derived from a special grant of power, and there is no warrant for extending this power beyond the objects specified. 4 An. 408.

The g'rant under which the city now exercises the right of taxation, is embodied in the Act of 1856, amending the Act consolidating the city of New Orleans. That Act provides for the taxation of property and the taxation of persons. The 36th, 38th and 42d sections determine the extent, and provides for the manner of levying taxes upon property. The 102d section gives the authority and provides the manner of taxing persons.

In the construction of ordinances, as in the interpretation of statutes, the court will ascertain and give effect to the intent and meaning of the ordinance, provided that the same be not contrary to law, although the language may be ambiguous and susceptible of two different significations, one of which is against law. Notwithstanding the language of the 34th section of the ordinance in question declares, that a tax of sixty dollars shall be assessed and collected from every keeper of a billiard table, the whole tax being levied on each and every billiard table, we have no doubt that the intention of the Common Council was to impose a license tax upon the particular calling or business of keeping a billiard table, and not a property tax upon the table itself.

Second. The remaining question is, whether the license tax imposed upon keepers of billiard tables by the ordinance is equal and uniform.

The power conferred upon the Common Council by Article 102 of the charter to levy license taxes upon trades, professions, callings and other business carried on, is without exception or limitation ; and in the exercise of this power it is necessary to determine what is a trade, profession, calling or other business carried on, and the determination of these matters, previous to the assessment of the tax, has been left by the charter to the wisdom and discretion of the Common Council.

In the ordinance in question, the Common Council have determined that every person having more than one shop, or store, or other establishment, or who shall exercise or follow more than one profession, trade, calling or business, shall pay the tax upon each separately. Sec. 73 of the ordinance. And have also determined that the keeping of each and every billiard table constitutes a separate and distinct business subject to a license tax. Hence it follows, that as the keeping of each billiard table, in the sense of the ordinance, is a separate business, subject to a tax of sixty dollars, and no more, that the tax is equal and uniform upon all persons engaged in that kind of business, as much so as the license tax upon merchants having separate stores or establishments.

It is, therefore, ordered adjudged and decreed, that the judgment be avoided and reversed, and that there be judgment in favor of the defendant, with costs in both courts.

]jag tills grant of the right to levy the personal tax conferred by section 102, been exceeded in the present instance, by the municipal authorities ? This ques^tion has been solved by the decision of the court in favor of the city ; but in so doing, it is submitted with all due respect, that the court has not allowed sufficient weight to several considerations which have an important bearing' upon the controversy.

The particular manner in which the Legislature has authorized this personal tax to be laid, is in the shape of licenses on trades, professions, callings and other business.

No form of tax can be devised more strictly personal, than that of the license to pursue a particular trade, profession or calling.

It acts only on actual residents within the territorial limits of the taxing power, and is impotent by reason of this personal nature of the tax, to affect the interests of absentees in the occupation or business carried on within those limits.

It is so exclusively personal, that if he to whom the license has been granted should die, the right is not transmitted to his heir, to use it during the unexpired period. Neither can it be transferred to another by sale or otherwise, not even as an appurtenance to the business for which the license was taken out.

It is levied without reference to the amout of capital engaged, of property employed, or of revenue derived from the particular occupation or calling, which is the subject of the license. Thus the recently admitted attorney whose income barely reaches hundreds, pays the same license as the long' established counsellor, whose professional emoluments are measured by thousands ; and so one merchant with limited capital and stock, contributes precisely the same amount to the treasury, on receiving his license, as another whose business and property may be an hundred fold greater.

This distinguishing feature of the license was not lost sight of by the Legislature, when it vested the power in the city to raise a portion of its revenues by this means. It was distinctly provided, that the tax was not to be construed to be a tax on property.

But in the ordinance complained of, the license which every billard table keeper is required to procure, as a condition precedent to the exercise of his calling, loses all the characteristics of a license or personal tax, and becomes in terms, as it is in fact, a tax on property.

For the 34th section provides that the whole tax of sixty dollars shall be “ levied on each and every billiard table.” This is in as plain terms as language can express the idea, a tax upon the thing, upon property, possessing the peculiarity of the property tax ; which is, that it increases in amount according to the quantity of the property employed, and wanting, consequently, in the distinguishing- feature of the license or personal tax, which is, that it should be a sum fixed, not variable according to the amount or value of the property used in the calling or business licensed.

This fatal antagonism as it would seem to the undersigned, between the idea of a license and the assessment in this particular case, is reconciled by the court, on the hypothesis that the Legislature has vested in the municipal authorities, the exclusive right of determining what are trades, professions and callings, within the meaning of the 102d section ; a right which it is supposed they have exercised with respect to the billiard table tax, by holding every billiard table keeper to pursue a separate and distinct occupation as to each and every table he may have under the same roof or in the same room. The language of the court is, “ the power conferred upon the Common Council by Art. 102 of the Charter, to levy license taxes upon trades, professions, callings, and other business carried on, is without exception or limitation ; and in the exercise of this power, it is necessar ry to determine what is a trade, profession, calling, or other business carried on, and the determination of these matters previous to the assessment of the taxes, has been left by the Charter to the wisdom and discretion of the Common Council.

The Act of 1856 has been examined with care, for the purpose of ascertaining upon which of its provisions the court has formed its conviction, that the Legislature has either in express terms or by limitation,-delegated to the city this unusual power of fixing, by its own interpretation, the nature and extent of the grant conferred upon it. Has it been left to the Common Council to decide as in the last resort, what is a trade, profession or calling; or was not the use of words having a known, definite and well ascertained meaning, intended to limit the grantee to the subjects fairly included within the definition of the terms employed ?

We hold the latter of these propositions to be indisputably the true one. As was said in the place in 4th Annual already quoted, the right of taxation is derived from special grant, and there is no warrant for extending it beyond the object specified. What these objects are, is a question like every other question regarding the legislative will — purely of judicial construction. To hold that this power of interpretation, and of consequent extension of the grant, is vested in the grantee, is, it is respectfully submitted, to destroy all the safe guards which the Legislature of the State has so wisely enacted, to anticipate and to prevent the abuses growing out of an irresponsible and unlimited power of taxation.

The jurisprudence of this court abounds in instances of its interference to restrain the abuses of the taxing power. It had always proceeded upon the assumption, that the power is a delegated one, and that the grant was to be construed strictly. In 1851, it refused to sanction the interpretation which the municipal authorities placed upon tho legislative grant, and it held that the right to tax capital was not included in the general right to tax personal estate ; and yet with such a canon of interpretation as the court seems to recognize in the present case, the counsel could have triumphantly insisted, that the right of determining what constituted personal estate was left entirely to their wisdom and discretion, and was not a proper subject of judicial inquiry or determination.

Undoubtedly, if this exclusive right of deciding what the Legislature meant by trades, professions and callings, belong to the Common Council, the exercise of this right, however extravagant, would not be the subject of review, and the plaintiff would be without remedy. But the undersigned are not without hope in view of the serious evils which may ensue from the recognition of this right, that the court will pause before it yields its final sanction to this doctrine. In the hands of a body disposed to extend its power of taxation, or to disregard the restraints to which it is subject, it would be a facile means of increasing the burdens of the citizens, without measure and without control. The sale of every package of merchandise, the call of every new patient, might be created into a distinct and separate occupation, and made the occasion of exacting a separate license. The collection of one’s own income might thus be created into a trade, profession or calling, and the tax demanded for its pursuit. These may be extreme cases, but they afford a fair means of testing the soundness of the principle which could possibly result in such consequences.

If, then, it does not belong to the Oommon Council to determine without appeal, what subjects are included in the language of the 102d section of the city charter, we are thrown back upon the ordinary sources of interpretation, for the purpose of fixing the true limits of the power it vests in the city ; and in this view, the decision of this cause ought not to present serious difficulty ; because we have but to appeal to the common understanding of men upon these matters, to justify us in saying that the keeper of a billard saloon is considered to pursue but one occupation, whether he has two or a dozen tables in his rooms. No one would speak of such a power as multiplying his pursuits or occupations upon each addition which the wants of his customers or his own enterprise, might induce him to make. With more propriety might the grocer be considered as pursuing different occupations with respect to the infinite variety of articles he vends, and be required to increase the number of his licenses with every new article he adds to his stock.

These views are fully supported by the decision in tho case of the Police Jury v. Nenegues, 11 An. ; a case quoted in the original brief, though not noticed in the opinion of the court. The analogy between that case and the present, seems to the undersigned to be so striking, that the court will pardon them for again calling its attention to tho identity of the question then discussed and decided, with that now before the court.

The Police Jury of the parish of Orleans had imposed a tax or license upon all- dairymen carrying on their business within certain limits; the amount of tax being two dollars lor every cow. It is true the tax was liable to the objection which does not exist here; that it was not uniform, inasmuch as it was not levied upon all dairymen in the parish, but only upon those pursuing their occupation in a limited district of the parish. But the court will observe that with respect to tho point, whether, what was there called a license or tax on the person, was not in disguise a tax on property; the two cases are absolutely undistin-guishable. There, as here, the right to tax persons pursuing any occupation, trade or profession, was held to be resident in the Police Jury. There each and every dairyman within the limits, was taxed two dollars for each and every cow. Every keeper of a billiard table is taxed sixty-five dollars, the tax being levied on each and every billiard table. It was the circumstance that the tax was levied on the property, though in the shape of a license to the person, which induced the court to consider it, notwithstanding its name, to be a property and not a personal tax. The same reason should prevail here to induce the court to say that while professing to tax the occupation, the ordinance really imposes a tax upon billiard tables.

The change of legislation effected by the Act of 1856, may not be without its influence upon the question. The Charter of 1853, gave the city specially the right of imposing an uniform rate of taxes upon all billard tables ; the Charter of 1856 took away this privilege, and placed billiard tables upon the same footing as all other personal property. It is not to be supposed that this change was made without object or motive ; but under the operation of the decision in this case, it will be entirely ineffectual, since precisely the same result is attained, by the mode in which the personal tax on the calling of the billiard table keeper is permitted to be levied.

Re-hearing overruled.

Yoobhies, J., absent.


source: Caselaw Access Project

author: Land, J.

license: Public Domain

text:
    James Murphy v. J. S. Simonds & Co.
    The Supreme Court cannot inquire into the ruling of a District Judge in refusing to grant a continuance, when no bill of exceptions has been taken to such ruling.
    from the Fourth District Court of New Orleans, Price, J.

      M. M. Cohen, for plaintiff. G. A. Breaux, for defendant and appellant.
   Land, J.

The defendant has appealed from a judgment against him, on a bill of exchange, and contends in this court, that the District Judge erred in refusing him a continuance.

In the case of Dwight v. Richard, 5 An. 366, Slidell, Justice, the organ of the court says : “ The first subject presented for our consideration by the appellant, is the refusal of the court below to grant a continuance. The ruling of the court below cannot be inquired into here, the party not having taken a bill of exceptions to the ruling of the court.”

In the case of Crain & Jones v. M. D. C. Kane, 5 An. 659, Judge Rost, who delivered the opinion of the court, says: “No bill of exceptions was taken to the opinion of the Judge refusing the continuance. In consequence of this omission, we have no means of ascertaining his reasons for the course he pursued, and we are bound to presume that they were sufficient in law, and that the party acquiesced.”

In this case the appellant took no bill of exceptions to the ruling of the court refusing him a continuance. There is no error in the judgment appealed from.

It is, therefore, ordered, adjudged 'and decreed, that the judgment be affirmed with costs.

Yoorhies, J., absent.


author: Buchanan, J.

text:
    The State, on the relation of Cordeviolle & Lacroix, v. Judge of the Fifth District Court.
    An agreement by the parties to submit the report of experts and tlie whole matter in controversy, without argument to tho court, does not deprive either party of their right of appeal from any judgment that may be rendered against them.
    an application for a mandamus to the Judge of the Fifth District Court of New Orleans.

      Collens <6 Wooldridge, for relator.
   Buchanan, J.

The relators complain that the defendant refuses them an appeal from a judgment in a civil case where the amount in dispute was ten thousand dollars. The defendant, in his answer, acknowledges the correctness of the facts stated in the petition of relators, but contends that the case was submitted to him as an amicable compounder, and consequently that there is no right of appeal.

The submission upon the minutes of the District Court was in the following words :

When after hearing pleadings, evidence and counsel, the parties agreed in open court to submit the whole matter without argument, the court to pass upon the report and amend the same, without referring it back to experts, and upon the law and the evidence to give such judgment on said opposition as in its opinion may be just.”

There is nothing in the terms of this submission which withdraws it from the general rule, and deprives any party to the suit of his right of appeal. Indeed, we doubt whether the doctrine in relation to amicable compounders in matters of arbitration, can be applied to a Judge of a District Court. No precedent to that effect has been brought to our notice. Arbitrators constitute an exceptional tribunal created by the parties themselves, and to whom the law permits the parties to delegate a final and unappealable jurisdiction, (when there is no' fraud or misconduct,) under the name of amicable compounders. But the District Judges are a part of the judicial organization created by the Legislar ture under Article 61 of the State Constitution; and their judgments fall within that provision of Article 62 of the same instrument, which declares that the appellate jurisdiction of the Supreme Court extends to all cases where the matter in dispute exceeds three hundred dollars.

It is, therefore, adjudged and decreed, that the peremptory mandamus issue as prayed for, requiring the Honorable the Judge of the Fifth District Court of New Orleans to allow an appeal, and to permit the same to be carried to this court, and to proceed, notwithstanding the order of 21st of March, rescinding the same.

Voorhies, J., absent.


author: Merrick, C. J.

text:
    Alexander Pope v. Hall & Hildreth.
    The oath of tho party cauuot bo received to prove the deposit of his baggago or other articles of valuó at an inn.
    When proof aliimde, establishes the fact of the possession by the party of the articles alleged to have been stolen, and their deposit in the inn, and that the room had been entered by thieves, the declaration of such party at the instant of discovering tho theft may be givon in evidence as part of the res gestee — not as proof of a deposit, but as a fact to bo1 connected with other facts tending to prove the loss.
    The inu-kdoper will be liable for the necessary baggago of tho traveler, his watch and personal apparel, and for money which ho has about him for his personal use when stolon, notwithstanding a regulation of the inn requiring travelers to deposit certain articles of value in tho safe at the office.
    from the Fifth District Court of New Orleans, Eggleston, J.

      A. G. Semmes, for plaintiff. Clarice & Bayne, for defendants and appellants.
   Merrick, C. J.

This suit has been brought against Messrs. Hall & Hildreth, the proprietors of the well known St. Oharles Hotel, of this city, to refcover of them three hundred and forty-five dollars, for a watch and chain and gold coin, alleged to have been stolen from the trunk of the plaintiff whilst lodging with the defendants as a traveler.

The case was tried without the intervention of a jury, and an elaborate examination of the law and facts by the learned Judge of the District Court, resulted in a judgment in favor of the plaintiff for $300, defendants have appealed.

The first question for our consideration, is presented by a bill of exception taken to the testimony of a witness (who lodged in the same room with plaintiff,) of the declarations made by him on the discovery of the theft or robbery. The particular statements objected to are, that “ some person had entered his room and stolen his watch and pocket book,” that “ his belt and gold were gone,” and some one had been in the room and stolon his watch and pocket book.”

In most of the common law States, wo believe, the oath of the traveler is received with corroborating testimony to prove the contents of his trunk and loss, and in France the Judge has power, in a proper ease, to order the oath to be deferred to the plaintiff.

Our law contains no such provisions, but on the contrary declares that no one interested in the event can bo a witness in the cause. O. 0. 2260.

The lawgiver has also had the particular case of travelers under consideration, and as he has declared the kind of proof necessary in order to establish the deposit, the courts cannot add other exceptions.

Art. 2940 is as .follows : “ the deposition on ” (declaration under) oath' or affirmation of a single competent and credible witness as to deposit at inns, may be admitted as good proof even when the value of the thing so deposited exceeds five hundred dollars; but the Judge must admit this kind of proof in that case with circumspection according to the'circumstances of the fact and the condition of the parties.”

If the oath of the party cannot be received to prove the deposit, much less therefore can the unsworn declarations of the plaintiff be received for that purpose.

But where the proof aliunde establishes the fact'of the possession by the plaintiff of the articles alleged to have been stolen, and their deposit in the inn, and that the room had been entered by a thief or thieves, we think the declaration made by the party on the instant of the discovery of the theft or robbery may be given in evidence as part of the res gesta; not as proof of the deposit, but as a fact to be connected with other facts tending to prove the loss. In this case it is suggested that the plaintiff might have secreted the watch and gold himself, and that it is dangerous to admit the declarations of the party in evidence. But t.ho same objection might be made, if, in order to ascertain the loss, the trunk had been first examined by a stranger instead of the plaintiff himself The declarations were those made to a lodger in the samp room on discovering that the door of the room had been opened and the watch was missing, and on a further examination, and discovering that the trunk had been opened, they were calculated to call the attention of the fellow traveler to the facts. As the declarations of the party were admissible as part of the res gesta, for the purpose wo have indicated, the Judge did not err in receiving them.

It is next objected that the character of the plaintiff and his friend, the witness, ought to have been shown. It is true, that the article of the Code which has been cited does contemplate proof of the condition of the parties, but we think in this case we have sufficient proof on that subject, drawn out on the cross interrogations of defendants.

Supposing the deposit and loss to be established, the defendants oppose these further objections to the plaintiff’s right of recovery, viz :

1st. That the loss was occasioned by the negligence of plaintiff and his friend in not locking the door of their sleeping apartment, and

2d. That the plaintiff was notified by the regulations of the hotel, posted in the apartment occupied by plaintiff, and in other conspicuous places, that the proprietors would not be responsible for the loss of money, watches, &c., unless deposited in the safe at the office kept for that purpose.

.1. On the first ground, the proof shows that the plaintiff and his traveling companion on retiring to their room on the night of the theft, applied at the office aud obtained the key bearing the number of their room, (which was in an upper story of the house,) that on reaching the room it was found that the key would not unlock the door, the key not throwing the bolt back ; that they then reported to the office that the key would not unlock the door; that a porter -was sent with a pass key, and he also tried in vain to unlock the door with the key furnished plaintiff; the room was then unlocked with the pass key, when it was found that the key handed plaintiff would lock, but not unlock the door; no other Key was furnished the plamtiff, and as his companion objected to be locked up in a room which they had no means of unlocking in case of fire, it was left unlocked. The defendants were fully notified of the defect in the lock by the information communicated to the clerk, porter and chambermaid.

No reasonable man could be expected to shut himself up in an upper room in a large hotel without any means of egress, and become wholly dependent upon the casual presence of a servant outside to open the door. The neglect to lock the door is not a fault which can be imputed to the plaintiff. The key discovered the day after the theft explains the discrepancy between J. Á. Hildreth’s testimony and that of plaintiff’s witness.

II. At the head of each stair-way a large card was posted, cautioning the boarders to beware of hotel thieves, and requesting them to deposit all money, jewelry, watches, plate, or other valuables, in the safe at the office, and notifying the guests, that the proprietors would not be responsible for any such articles stolen from the rooms.

The regulations of the hotel were posted in print in each of the rooms. Among other regulations, is stated that “ money and articles of value may be deposited and a receipt taken, and no remuneration may be expected if lost when otherwise disposed of.”

The defendents contend that the inn-keeper has the right to say where the property shall be kept as a sequence of his responsibility ; that if he is to be held responsible as a custodian, he must be permitted to guard the property in his own way, and they derive this right to limit the responsibility from the Roman law, and cite the concluding paragraph to law 7. Dig., lib. 4, tit. 9, Be protestations exercitoris. It is as follows : '

Item si pradixerit, et unusquisque rectorum res suas servet, ñeque damnum se prastaturum, et consenserint vectores predictioni, non convenitur.

It will be observed in the text cited, that the master of the ship limits his liability only by the actual consent of the passengers. In the present case, this right is claimed to the inn-keeper without such express consent of the traveler.

Without reviewing the cases, or entering into the prolix discussions which this question has given rise,‘to in Prance, England and the United States, it is sufficient to say, that we think the District Judge very correctly took a distinction between articles of value and those ordinarily worn, together with such small sums of money as are usually carried about the person. He says, in conclusion :

“ They (inn-keepers,) have no right to require a traveler to deliver up to them his necessary baggage, his watch, which adorns his person and is a part of his personal apparel, and the money which he has about him for his personal use. Such a regulation is contrary to law and reason. If he had large sums of money or valuables the rules might be 'different.”

Under this view of the case, which we adopt, it is a matter of indifference whether the plaintiff did or did not read the notices posted in the hotel.

The traveler who arrives at the inn where "he intends to lodge during the night, ought not to be required to part with his watch which may be necessary to him to regulate his rising, or to know when the time of departure of the morning train or boat has arrived. Neither ought he to be required to deposit with the inn-keeper such small sums of money as are usually carried by the majority of persons in the.like condition in life visiting such hotel.

The inn-keeper should provide safe locks or fastenings to the rooms, and in default of the same, he must be held responsible for the loss of such articles of apparel and small sums of money as are usually carried or worn by the class of persons favoring the hotel with their patronage.

The estimate of the damage sustained by the plaintiff is justified by the proof.

Judgment affirmed.

Voorhies, J., absent.


text:
    Estelle Alexandrie, Wife of, &c., v. B. Saloy et al.
    The deposit of the money in court, after the institution of a suit on a note, is not a payment of the note to the creditor or to any one authorized to receive it for him.
    Where, in an act of mortgage, it was stipulated that, in the event of the note not being paid at maturity, the attorney’s fees for collection should be paid by tho debtor, but it was shown that the suit for the collection of the note was unnecessary — Held : That the fees could not be secured by the creditor.
    from the Fifth Disirict Court of New Orleans, Eggleston, J.

      A. & A. Pitot, for plaintiff. G. & C. E. Schmidt, for defendants and appellants.
   Land, J.

The defendant was the holder of a promissory note made by the plaintiff, a married woman, payable to her own order, and by her endorsed in blank, for the sum of seven hundred dollars, and secured by mortgage on certain slaves.

The defendant instituted executory proceedings for the recovery of the amount of the note, and the sum of seventy dollars, attorney’s fees, which the plaintiff had stipulated in the act of mortgage to pay, in the event the note should not be paid at its maturity.

This suit was instituted to enjoin the execution of the order of seizure and sale, on the grounds stated in the petition, as follows :

» “ That your petitioner being indebted to one Joseph Pouet, in the sum of one thousand dollars, secured by first mortgage on two slaves, and by second mortgage on the four slaves already securing 'the above sum of $700 due to said Saloy, did apply to said Pouet and request him to pay the said note of $700 in the hands of Saloy, and to become thereby her. only creditor for the sum of @1700. with mortgage on the six slaves. That said Pouet consented thereto, and .for the purpose of carrying into execution the above propositions, applied to said Saloy and offered him the sum of @700, being the amount of the note held by him. That said Saloy did not then accept the sum offered to him, but advised the said Pouet •not to pay the said note before protest, for fear of losing the mortgage rights attached to the same, thereby leading the said Pouet into error as to the law, and told him to be quiet, and that as soon as the note would be protested, he would advise the said Pouet of the facts, so that he could pay and retain his privilege. That said Pouet, ignorant of the law, and reposing full confidence in the promise of Saloy to inform him of the protest of the noté, withdrew without paying the same.

“ That on the 10th of February, 1858, the said Pouet, having been previously informed by your petitioner that said note had been protested on the 13th, applied to said Saloy at 10 o’clock A. M., in order to pay him the amount thereof, when he was answered that the note was already in suit in the Fifth District Court of New, Orleans.. That said Pouet then went to the Fifth District Court, where he was soon followed by Saloy, and observed to him in the presence of the deputy ' clerk, that he had acted wrongly in putting said note in court so promptly, when he knew that the same would have been paid on presentation, and he had himself ■ promised to bring it to said Pouet immediately after protest, and the said Pouet then offered again to give his check for the note and protest, when he was again prevented by said Saloy from so doing, under the pretext that it was necessary to wait for the Judge, before whom Saloy’s lawyer would make a motion to sub-rogate Pouet to all the rights secured by the mortgage.

“ That afterwards, the said Pouet was informed for the first time, by Saloy’s own lawyer, that, besides the note, there was a claim of $70 for lawyer’s fees, for filing the petition in court and demanding the writ of seizure and sale. That upon receiving information of such a claim, petitioner refused to pay the same, or to permit the said Pouet to pay the samé in her name, inasmuch as Saloy had no business or necessity to institute proceedings against her to obtain payment of his note, and had positively promised to inform Pouet, who was then your petitioner’s agent, of the protest of the note, which, if he had fulfilled Ms promise, would have precluded the necessity of any further proceedings on his part.

“ Petitioner further avers, that she had deposited in court the sum of $703, amount of note and protest, subject to the demand of said Saloy, &c.”

The facts thus stated in the petition were substantially proved on the trial in the court below, and the District Judge perpetuated the injunction and condemned the defendant to pay the sum of $75, attorney’s fees, and the further sum of $100 dollars damages sustained by plaintiff, by the wrongful acts committed by defendant.

I. The facts stated in the plaintiff s petition do not constitute a real tender of payment of the note. When the tender is for money due, it must be made to the creditor himself, or at his actual or chosen domicil, by the debtor’, or by his agent in the presence of two witnesses residing in the place, by tendering to such creditor the sum which is due to him, with the interest, and such costs as he may have incurred, and exhibiting such sum to him in the presence of such witnesses, in the current coin of the United States. Oode o£ Practice, 407. DeGoër v. Hellar, 2 An. 496.

II. The deposit of the money in court with the clerk was not a payment of the note — for the reason, that it was not a payment to the creditor, or to any person authorized by him, or by a court, or by law, to receive it for him. O. O. 2136. The deposit with the clerk was after the institution of the executory proceedings, and cannot, therefore, affect the question of the defendant’s right to institute the same.

It was, however, stated and admitted in argument, that the defenfant had ratified the payment to the clerk by receiving the money from him, and this statement the court will consider as true.

The defendant had the legal right to institute suit on the note, at the time of the commencement of the executory proceedings and this right continued until the amount of the note was paid to the clerk, and ratified by him. It was then extinguished, and the injunction was, therefore, rightfully perpetuated.

The question whether the plaintiff is bound to pay the attorney’s fee of seventy dollars, stipulated in the act of mortgage, is independent of the strict legal right of the defendant to sue on the note — but depends on the intent and meaning of the ' parties, in making the stipulation.

We understand the stipulation to mean, that the plaintiff should pay the attorney’s fees, in the event that a suit should be necessary for the collection of the note ; and we are of opinion that no such necessity existed, and that the plaintiff is,

' therefore, not bound to pay the same.

The suit for the collection of the note was unnecessary, and perhaps ill-natured, but as the defendant had the legal right to institute it, he cannot be condemned in damages for its exercise. There had been neither a legal tender, nor payment of the note.

It is, therefore, ordered, adjudged and decreed, that the judgment he affirmed so far as it perpetuates the injunction, and that it he reversed so far as it condemns the defendant to pay seventy-five dollars attorney’s fees, and one hundred dollars damages, and that the plaintiff pay the costs of this appeal, and the defendant the costs of the lower court.

Vookhies, J., absent.


author: Land, J. Merrick, C. J.,

text:
    Maunsel White v. Matthew Ramsey.
    The appeal will be dismissed when it is made to appear, in the Supreme Court, that the appellant had voluntarily executed the judgment after taking his appeal.
    from the District Court of the Parish of East Baton Rouge, Beale, J.

      T. G. Morgan, for plaintiff. Ellis <& McCutchon, for defendant and appellant.
   Land, J.

A motion has been made in this case to dismiss the appeal taken by the defendant, on the ground of his voluntary execution of the judgment by a payment in full of the principal, interest and costs, after the appeal was granted.

The record shows, that defendant took, in open court, a suspensive appeal from the judgment, but that he did not give bond according to law, for an appeal of that character; that an execution issued on the judgment, and his property was seized under it; that the seizure was released by order of the plaintiff’s attorney, and that the costs of suit were paid to the Sheriff.

The motion to dismiss alleges full payment of the judgment, and is a judicial admission of the fact in this court by the plaintiff, and is sworn to by C. Kohn, representing himself to be an authorized agent of the plaintiff.

We are, therefore, of opinion, that the fact of payment sufficiently appears from the evidence in the record.

The failure of the defendant to give bond for a suspensive appeal, (in the absence of proof or suggestion of his inability to do so,) and his subsequent payment of the judgment, constitute a voluntary execution thereof, and extinguished his right of appeal. C. P. Art. 567.

It is, therefore, ordered, adjudged and decreed, that the appeal be dismissed, and that the Clerk of the District Court enter satisfaction in full on the original judgment in his office ; and that defendant pay the costs of this appeal.

Merrick, C. J.,

dissenting. As we have no original jurisdiction, I am of the opinion that the case ought to be remanded to try the issue made by the motion to dismiss.

Where the costs are large, it might be the interest of an appellee to admit payment in order to obtain a dismissal of the appeal.


author: Buchawast, J. Meeeick, C. J.

text:
    E. Hiestand v. The City of New Orleans.
    The city of New Orleans is a political corporation recognized by the Constitution of the State, to which the Constitution has imparted a portion of the executive and judicial functions of the government.
    The Common Council of ¡sTew Orleans is within the sphere of its constitutional and legal attributions, a Legislature ; and in the exercise of its power in relation to the collection of taxes due to the city, may empower a particular individual to collect the same for a fixed compensation, but they have the right at any time to change, modify, or repeal a resolution conferring such power, with the sole condition, that the city shall be liable for any compensation earned under and in pursuance of the resolution before its repeal.
    The repeal of such a resolution is not the violation of a contract.
    The commission of five per cont. under the Act of tlio Legislature of 1852, to tlio Assistant City Attorney, upon tax bills collected by suit, is duo to the officer who obtains the judgment, and not to the one who collects the amount of It.
    The law of hiring personal services for a term, has no application to such dealing between parties ; if any contract would be thereby created, it would be the contract of mandate, and revocable at the will of the principal. C. C. 2997.
    PPEAL from the Sixth District Court of New Orleans, Iiowell, J.
    _OL C. Roselius, for plaintiff. J. J. Michel, for defendant and appellant.
   Buchawast, J.

It is a fallacy to call the resolution of the Common Council of the city of New Orleans of the 23d of May, 1856, a contract; and the repeal of that resolution, a violation of a contract, which subjects the corporation to damages.

The city of New Orleans is a political corporation, as observed in argument by one of the counsel of plaintiff — a political corporation recognized by the Constitution of the State, to which the Constitution has imparted a portion of the executive and judicial functions of the government, and to which the Legislature has communicated many legislative functions; among them, that most important of all, the power of taxation. In fine, the city charter of the 20th of March, 1856, makes a systematic division of the powers of this corporation, into legisla-tivo, executive and judicial.

The Common Council of New Orleans is, then, within the sphere of its constitutional and legal attributions, a Legislature ; and for the purpose of carrying out the objects of its organization, is necessarily invested with all power of regulating those details which are not specified, and which could not be specified in its organic law. Among those details, are necessarily comprised such as relate to the collection of the taxes, licences, fines, and other dues of the city, so far as not provided for by the city charter.

Now, on examining the amended charter of the 20th of March, 1856, which was in force from the date of its passage, we find that all that is said therein, in relation to the enforcement of the payment of taxes due the city, is contained in the first and second paragraphs of the 107th section. Session Acts of 1856, p. 159. It is there enacted, that the Treasurer shall put in suit, on the second Monday of May in each year, in a court or courts of competent jurisdiction, all unpaid bills for taxes levied upon property assessed; and that such suits shall be prosecuted in a particular form.

But there is nothing in this charter declaring that any particular law-officer of the city shall be charged with the professional management of suits for taxes, nor that any particular compensation shall be allowed for their collection. The third paragraph of the same section of the charter, is more explicit on those subjects, in relation to the collection of fines and licences due the city, which, says that paragraph, are to be collected by the Assistant Oity Attorney, who shall receive, as compensation for such services, ten per cent., to be paid by the party in default.

Whether this distinction in the provisions of the charter in relation to the two classes of city dues, has been made by the lawgiver ex industria, as was intimated in argument by one of the learned counsel for plaintiff, or whether it was the result of inadvertence, is of no great consequence.

It suffices that the charter is sileut on the subject now under consideration, to make the legislative control of these details by the Common Council, attach. The resolution of the 23d of May, 1856, was an exercise of that control. That resolution consists of two sections. The first provides: “ That E. Hiestand, Assistant City Attorney, be, and he is hereby authorized to make up, for the city of New Orleans, a tabular statement showing the condition of each suit for tax bills, due the city for the years 1852 and 1853, the same to be submitted to the Common Council.”

The second section is as follows: Be it further resolved, that he is hereby empowered to collect the same, making up his reports monthly, and paying the amounts collected into the City Treasury, for which services he shall be entitled to receive, as full compensation, ten per cent, on the amount collected ; he, in all cases, to pay the costs for which the city may be liable, for attempting to enforce payment of the same.”

We observe, that in this resolution, the plaintiff is mentioned by name. But that, we conceive, by no means restrained the Common Council in the exercise of their legislative functions. Whether it was made the duty of the Assistant City Attorney, or of E. Hiestand, the Assistant City Attorney, or of E. Hies-tand, or any other named person, without an official designation, to make the tabular statement of tax suits, and whether this or that person, official or otherwise, was empowered to collect the tax bills due the city for 1852 and 1853, or for any other years, the Common Council, as the body in whom the legislative power of the city of New Orleans was vested by the third section of the charter, had, in our opinion, the absolute and uncontrolled right to change, modify and repeal, at any time that to it might seem meet, the said resolution and all its parts ; with the sole condition, that the city should be liable for the payment of any compensation that had been earned under and in pursuance of the resolution previous to its modification or repeal.

When, therefore, the Common Council, by its resolution of the 14th of November, 1856, authorized F. C. Laville, Assistant City Attorney, to collect the amount of judgments obtained since the Consolidation Act, in favor of the city of New Orleans, by his predecessor in office, and allowed him a compensation of two-and-a-half per cent, for making such collections; and when, in the same resolution, all resolutions or ordinances contrary thereto, were repealed, the council acted within the purview of its legislative authority in the premises, and the plaintiff has no legal right to complain of its action, much less to charge that action as a violation of a contract.

We shall next proceed to inquire what are the particulars of the demand of plaintiff against the defendant in this action.

First, plaintiff alleges that, while holding the office of Assistant City Attorney, he collected and paid into the city Treasury the sum of forty-nine thousand three hundred and forty-eight dollars, proceeds of judgments obtained by his predecessor in office, upon tax bills for city taxes for the years 1852 and 1853, (the commissions for obtaining which judgments, plaintiff admits his said predecessor is entitled to,) for the collection and payment of which sum plaintiff has received nothing ; and his services therefor are charged in his petition as being reasonably worth a commission of five per centum on the amount so collected and paid ; which commission amounts to the sum of two thousand four hundred and sixty-seven dollars.

This item of plaintiff’s claim is inadmissible. It was decided by this court, in Heistand v. Labatt, 11 An. 30, that the commission of five per cent., under the Act of 1852, to the Assistant City Attorney, upon tax bills collected by suit, was due to the officer who obtained the judgment, and not to him who collected the amount of that judgment. There is nothing in that law which imposes upon the city the payment of a second commission of five per centum, and the claim, as for a quantum meruit, cannot be allowed.

The plaintiff must be considered as having accepted office, with reference to the legislation regulating the duties and the emoluments of the office which he accepted.

The plaintiff next claims ten per cent, commission on the sum of $8,378 05, collected and paid into the City Treasury by him, under the resolution of 23d May, 1856, above recited. The proof sustains this claim, which was allowed by the judgment of the District Court.

The next item is a claim of twenty-five thousand dollars as damages for an alleged violation of a contract, being ten per cent, on the total amount of outstanding and uncollected taxes due the city for the years 1852 and 1853, and which alleged violation of contract consists in the passage of the resolution of the 14th of November, 1856, above alluded to.

We have already disposed of .this, by far the most important portion of plaintiff’s demand, in the commencement of this opinion.

We will add, that the law of the hiring of personal services for a term, and the decisions upon that subject cited in argument, have no application to the dealings between the parties to this suit, which, if a contract at all, would be the contract of mandate; a contract essentially revocable at the will of the principal. C. 0. 2997.

It is, therefore, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.

Meeeick, C. J.

Without assenting to all the reasoning of the court in its opinion, I concur in the decree pronounced by the majority of the court.

Voorhies, J., absent.


text:
    H. Hereford v. V. Babin, Sheriff.
    The District Court of the parish where a succession has been opened and is in due course of administra- • tion, lias exclusive jurisdiction of a claim against the succession.
    A party has no right to enjoin the execution of a judgment, absolute and unconditional as to the matters it professed to decide, during a litigation as to other matters in controversy reserved by the judgment.
    An unliquidated claim cannot be pleaded, by way of compensation and injunction, against a judg-
    PPE AL from the District Court of the parish of East Baton Rouge, Beale, J.

      A. M. Bunn, for plaintiff and appellant. T. G. Morgan, for defendant.
   Buchanan, J.

In June, 1854, a judgment was rendered by the District Court of East Baton Rouge, in the suit of Leverich, Curator of Walsh, v. Amos Adams and Harriet Hereford, upon certain contacts and money transactions between those parties, in relation to a sugar plantation and its cultivation; by which judgment it was decreed that the plaintiff recover of the defendant, Adams, severally, a certain sum of money, with interest — of the defendant, Hereford, severally, another sum of money, namely, $3846 66, with interest — of the defendants, Adams and Hereford, jointly, another sum, being ten thousand, three hundred and seventy dollars, with legal interest from the 8th December, 1851, until paid; and that the rights of Amos Adams and of Mrs. Harriet Herefwd, if any they have, to recover of the estate of Edward J. Walsh, any sums due to them for the use and hire of their slaves, horses, mules, &c., &c., in making or assisting to make and take off the crops of sugar, &c., made on the Highland plantation be reserved to them, to be enforced in due course of law. i

In May, 1855, the Supreme Court, on appeal, affirmed the said judgment of the District Court, with the exception of that portion which coudemned Mrs. Hereford to pay, severally, $3846 66, with interest.

Execution issued from the District Court against Mrs. Herefwd, upon the judgment thus affirmed, for $5185, with interest, being the one-half of the sum in which there had been judgment jointly against herself and Amos Adams.

The present suit was commenced by injunction of said execution. Mrs. Hereford claims in her petition to be creditor of the succession of Walsh, plaintiff in execution, for the matters reserved in the judgment of the District and Supreme Courts; that she have judgment against Walsh’s estate for such indebtedness; and that the amount of such judgment be imputed to the payment of the judgment rendered against her, and upon which the execution had issued.

The defendant in injunction, plaintiff in execution, pleads :

1st. That the District Court of East Baton Rouge is without jurisdiction of a claim against the succession of Walsh, which is opened and in course of administration, in the Second District Court of New Orleans.

2d. That the writ of fieri facias, which is enjoined, issued upon a final judgment of the Supreme Court, duly enregistered and made executory in this court; that said judgment of the Supreme Court is absolute and unconditional, as to the matters it professes to decide, and its execution cannot be enjoined by the plaintiff while litigating other matters in controversy, which the judgment has reserved.

3d. That the allegations of the plaintiff’s petition, on which an injunction was prayed, constitute a plea of compensation, which, as the petition shows, is an unliquidated demand, and cannot be set up by way of injunction against a judgment.

And prays, that the suit be dismissed, and the injunction dissolved, and for judgment against the principal and surety in the injunction bond for twenty per cent, damages under the statute, and for five hundred dollars special damages for counsel fees.

It appears from the petition and from the documents annexed, that the succession of Edward G. Walsh is opened and in course of administration, in the parish of Orleans, as alleged in the exception. This fact was also admitted on the trial of the exceptions.

The declinatory exception was well founded. C. P. 164, \ 2; 924, ji 13 ; 986.

Upon the second plea of defendants :

The right of a party to enjoin the execution of a judgment, absolute and unconditional as to the matters which it professed to decide, during the litigation of other matters in controversy, which the judgment has reserved, was expressly denied in Henderson v. Wilcox, 2d An. 502 ; which was a suit commenced by injunction of the judgment in Wilcox v. Henderson, 7 Rob. 328, under circumstances precisely similar to those of the present case.

Upon the third plea :

The claim set up in plaintiff’s petition is evidently in the nature of compensation or offset of the judgment of defendant; for the prayer of the petition is, that they be imputed to the payment of that judgment. Now, it is an elementary principle, that compensation only takes place between the debts which are equally liquidated and demandable. C. 0. 2205. As a consequence of this principle, it is the settled jurisprudence of this court, that an unliquidated claim cannot be pleaded, by way of compensation and injunction, against a judgment. 10th An. 721 and 734.

The appellee prays that the judgment of the District Court be amended, by allowing him five hundred dollars as special damages for counsel fees, in addition to the allowance of damages by the judgment oí the District Court. We think the circumstances of the case entitle him to the relief sought, to the extent of two hundred and fifty dollars.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended ; that the injunction herein issued be dissolved, and that the defendant, William E. Leverich, curator of the estate of Edward J. Walsh, recover of Harriet Hereford and William F. Tunnard, in solido, six hundred dollars as damages, and interest, at the rate of eight per cent., on the judgment enjoined, from the date of the injunction (2Gth of June, 1857) until paid, together with costs in both courts.

Voorhies, J., absent.


author: Oole, J.

text:
    C. J. Barstow v. J. B. Murison.
    Wlicro a boat is engaged to take freight on the Mississippi river, and the exact time of the delivery is not stipulated, a reasonable time must bo allowed on the arrival of the boat, for the transportation. of the freight to the bank of the river.
    PPEAL from the Fourth District Court of New Orleans, Price, J.

      JCX Singleton <& Clack, for plaintiff and appellant. Lacy & Upton, for defendant.
   Oole, J.

Plaintiff sues defendant for $625, the price of the freight for five hundred barrels of molasses, which he had agreed to ship in plaintiffs boat, the “ Rapides ”; the molasses was to ho delivered to the boat at the plantation of J. N. Brown, in the parish of Iberville, and to be thence carried to St. Louis.

Defendant called in warranty Oakey, Hawkins & Co., from whom the boat had received an order for the molasses on Brown.

There was judgment for defendant and the warrantors, and plaintiff has appealed.

The evidence establishes that the steamer Rapides ” landed at the mouth of Bayou Manchac, about a half-mile above the landing of the plantation of Brown.

The molasses was at the sugar-house, ready for hauling to the landing, at the time of the arrival of the “ Rapides.”

Mr. Brown informed the clerk of the boat, who showed the order for the molasses, that it would not exceed from half an hour to an hour to get the first loads to his landing; and after that, the barrels would arrive at the landing as fast as they could be rolled aboard the boat, that he would at once commence hauling with ten mule carts.

The boat declined waiting.

The District Judge, in his opinion, says, “ I am led to conclude, from all the circumstances connected with this contract, that the boat did not want the freight at the rate stipulated, and in order to free herself from responsibility, took advantage of the fact that the freight was not on the levee for delivery at the time of her arrival.”

There was no time stipulated, that the boat was to wait, in case the molasses was not ready.

It is impossible for a planter to know the exact time that a boat will arrive for the purpose of taking molasses or sugar.

In the absence of a contract specifying the exact time of delivery, we are of opinion that a half-hour or an hour is not an unreasonable time for a steamer bound to St. Louis to wait, for a large quantity of molasses to be shipped from the coast of the Mississippi river, in this State, to St. Louis.

The testimony also shows, that in contracts of the character under consideration, an hour or two is not an unusual time to wait for the reception of the freight

Judgment affirmed, with costs.

Vookhies, J., absent.


author: Merrick, O. J.

text:
    E. Surgi v. James Calder et al.
    In a suit against the curator of a succession, in which a question of title between the succosion ami a third party is involved, the attorney of absent heirs has no authority to lllo an answer, making a different issue from the one presented by the answer of the curator.
    PPEAL from the Second District Court of New Orleans, Morgan, J.
    _CJL C. Redmond, for plaintiff and appellant. F. Haynes, for defendant.
   Merrick, O. J.

This suit is brought to restrain the defendant, who was the curator of E. N. Collins’ succession, from selling’ five mules and six drays, alleged to be the property of defendant.

The attorney for the absent heirs, as well as the curator, answered the petition.

The District Court being of the opinion that the plaintiff had failed to prove the identity of the property, rendered judgment in favor of defendant, and plaintiff appeals.

Since the appeal has been pending, James Colder has died, and John Coles has been appointed a curator to E. N. Collins’ succession, and made himself a party to this appeal.

We are of the opinion that the District Judge erred in deciding against the plaintiff on the question of the identity of the property. The case must be decided upon the answer of the curator of the succession, and not upon the general denial of the attorney of the absent heirs. C. P. 122.

The answer of the curator, who alone has capacity to form the contestatio litis, and stand in judgment on a question of title between the succession and a third party, admits, as we think, the identity of the mules, drays, &e., claimed, with those sold by Barrett to plaintiff. Now, when plaintiff shows a notarial act of sale from Collins to Barrett é ■Fitzsimmons, a verbal release from the latter to Barrett, and a sale from Barrett to the plaintiff, he exhibits a prima facia title to the property in question.

The burden is then upon the defendant to defeat such title by the proper aver-ments and proof.

In this case, we think the defendant should be permitted to amend, by showing the insolvency of the succession, and that the sales are fraudulent or simulated, if such be the fact.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the District Court be avoided and reversed; that the present defendant have leave to amend the answer, and that the case be remanded for a new trial, and further proceedings according to law, the curator of the succession of E. N. Collins, deceased, as such, paying the costs of the appeal.

Voorhies, J., absent.


text:
    Antonio Hernandez v. His Creditors.
    Whon property is sold at Sheriff’s sale, and the party causing the sale to ho made is not able to put the purchaser in the enjoyment of the premises, nor of the rents, he has a right to refuse payment of the price.
    from the Fifth District Court of New Orleans, J.

      Durant & Hornor, for plaintiff and appellant. C. Roselius, for defendant.
   Land, J.

On the 17th of June, 1858, the Sheriff, by virtue of an order of court, adjudicated to Bernardo Rodriguez the fixtures and unexpired term of the lease of the property, at the corner of Gravier and St. Charles streets, in this city, for the price of three thousand, six hundred and fifty dollars.

The purchaser refused to pay the price of adjudication, and the syndic of the creditors of the insolvent took a rule on him, to show cause why he should not comply with the contract.

The answer of the purchaser is as follows :

“ That he has been always ready and willing to comply with the terms and conditions of the adjudication of said lease as soon as the said syndic shall put him in possession of the premises leased ; that the greater portion of said premises is in the possession of tenants, who claim to have a right to retain the occupancy and enjoyment of said premises until the first of November next, under a lease from said Hernandez, to whom said tenants allege that they have given their notes for the rent up to said period, which notes said tenants allege they have discounted, and that they are not bound to pay any rent, nor to quit said premises until the first of November next.”

The facts of the sub-letting of the premises by the insolvent, the giving of promissory notes for the rents, and the transfer or sale of them by the insolvent, and the possession of the premises by the sub-tenants, as alleged in the answer, were proved on the trial of the rule.

• The purchaser was entitled to the possession and enjoyment of the premises, for the unexpired term of the lease, or at least to the rents for the unexpired term. But in consequence of the sub-letting by the insolvent, and the possession of the sub-tenants, and the payments of the rents in advance, the syndic could neither put the purchaser in the enjoyment of the premises, nor of the rents, and was, therefore, unable to comply, on his part, with the terms and conditions of the adjudication, and the purchaser had the right to refuse payment of the price.

The District Judge deducted from the price of adjudication the amount of rents paid by the sub-tenants in advance, and rendered judgment against the purchaser, for the balance of the price.

This judgment has been acquiesced in, without prejudice to the right of appeal, and will, therefore, be affirmed.

Judgment affirmed, with costs.

Yoorhies, J., absent.


author: Cole, J.

text:
    W. T. Davis v. A. Grailhe.
    A party who exercises his right of making a wall, one in common, cannot resist the demand of his neighbor who erected the same, for one-half of its value, although he may have a claim to the soil upon which more than one-half of tho wall was built.
    from the Sixth District Court of New Orleans, Howell, J.

      Durant <& Honor, for plaintiff. J. <& E. Bermudez, for defendant and appellant.
   Cole, J.

Plaintiff sues to recover from defendant the value of one-half of a party-wall, with interest from the 1st of October, 1856, the day tho latter exercised the right of mating petitioner’s wall one in common.

Defendant knew, when he commenced building his house, that more than one-half of the wall built by plaintiff was on this land. He was also present when the wall was being erected, and made no objection.

Plaintiff appears to have acted in good faith.

The District Court was of opinion that the defendant was liable for one-half of the cost of the wall, without prejudice to the ownership of the land upon which it is built. Defendant has appealed.

Plaintiff having erected his house before the defendant built his, was entitled to rest one-half of his wall on the land of defendant. He could not, however, have compelled his neighbor, the defendant, to have contributed to the raising of the wall. If the latter had been willing to have contributed one-half of the expense for its erection, then it would have become a wall in common between the plaintiff and defendant. The latter having not offered to contribute, still preserved the right of making it a wall in common, by paying to the plaintiff the half of the cost of its construction. C. C. Art. 671, 672.

When the defendant became cognizant that more than one-half of the wall was upon his land, he had the right to keep it, or to compel the plaintiff to take away and demolish the part of the wall on his land, which exceeded one-half of its width.

In the former event, he would have owed to the plaintiff the reimbursement of the value of its materials and of the price of workmanship, without any regard to the greater or less value which the soil might have acquired thereby. In the latter case, the part of the wall on his land, exceeeding one-half of its width, would have been demolished at the expense of plaintiff, without any compensation. 0. 0. Art. 500.

Supposing that, under Article 680, defendant has the right of making the plaintiff pay the excess of his soil occupied by the wall over one-half of the width of the wall, still he has not brought himself within the provisions of this Article, or that of Article 500.

He has exercised the right of making the wall one in common, when he knew that it was built, as he admits in his answer, more on his land than it ought to have been. He did not, however, before building his house and using the wall of plaintiffj as one in common, avail himself of his privileges, and upon the trial, he did not even prove the value of his soil, exceeding one-half of the width of the wall, which is occupied by it. Under these circumstances, plaintiff cannot be prevented from recovering one-half of the value of the wall, without prejudice to any rights that defendant may have to the soil upon which more than one-half of the wall is built. Pardessus, Servitudes, No. 154; Solon, Traite de Servitudes réelles, No. 141. 1 Delvincourt, p. 554; 2 Marcadé, p. 581, Bouchard v. Croc ; Sirey, 1838, 2,159.

Judgment affirmed, with costs.

YooRniES, J., absent.


text:
    G. S. Hawkins, Administrator, v. C. McVae, Liquidator.
    The wife was bound in solido with her husband in an act of mortgage to secure a subscription to the capital stock of the Clinton and Port Hudson Pail road Company, to which mortgage the State of Louisiana was subrogated. The State afterwards causod the property to be sold under execution against the husband, as a defaulting Tax Collector, and the wife, through the intervention of a third person ? became the purchaser at the sale. Meld: that such a sale did not extinguish the mortgage of the State.
    Where the production of a certificate of mortgage is waived, notice of mortgages existing of record will be presumed.
    PPEAL from the District Court of East Feliciana, Ratliff, J.
    Xjl Hardesty & Keenan, for plaintiff. S. E. Hunton, for defendant and appellant.
   Buchanan, J.

The plaintiff, bearer of a second mortgage, sues the defendant to have a prior mortgage erased and cancelled, on the ground that it has been extinguished by the act of the mortgagee. The property is in the hands of the mortgagor.

The first mortgage is one which was granted by John W. Hays and his wife Catharine Hays, on the 15th June, 1838, to the Clinton and Port Hudson Railroad Company, to secure a subscription by the mortgagors to the capital stock of the said corporation.

In 1852, John W. Hays was sued by the State of Louisiana, as a defaulting Tax Collector, and this property was seized in execution of that judgment. It was sold on twelve months credit, nominally to B. M. G. Brown ; but the real purchaser was Mrs. Catharine Hays, as we learn from the recitals of a subsequent conveyance of the property from Brown to Mrs. Hays.

It was admitted on trial, that the Clinton and Port Hudson Railroad Company “ mortgaged, and pledged, and subrogated the State of Louisiana, on the 19 th day of June, 1839, among others, to the mortgage of Hays and wife,” and it was agreed, “ that any copy of said act, embraced in appeals from this court, may bo used and referred to, if desired, by either party.”

Upon this admission, it is contended by plaintiff, that the State is the party who held the stock mortgage of Hays and wife, at the time of the sale under execution ; and that the State, having exercised the right, given it by Article G85 of the Code of Practice, of having the property sold to satisfy a debt of inferior rank to the said mortgage, has thereby released the mortgage. The legislative and judicial history of the Clinton and Port Hudson Railroad Company, is officially known to us; and the agreement above copied, made by the parties on trial, specially authorizes us to look into the records of other appeals, having reference to the subrogation of the State to the stock mortgages of this corporation.

In the case of tlie Gas Light Company v. Bennett, 6 An. 457, Judge Bost reviewed the legislation on the subject of the stock mortgages of the Clinton and Port Hudson Railroad Company. Those mortgages are shown by him, to be of two classes — the first, given for the stock subscribed under the amended charter enacted in 1834, — the second, for that subscribed under the Act of 1831. The first class of mortgages, is for the benefit'of the holders of bonds of the Company. The second, is the security of the State for reimbursement of a loan of $500,000, made by the State to the Company. ,

The mortgage of Hays and wife, belongs to the second of these two classes ; and the State, in virtue of its subrogation, had the right to pursue the foreclosure of this mortgage, for contribution to the objects of the contract; but this could only be done through the liquidator appointed in pursuance of law, to settle the affairs of the Company. See the case of Bennett in 6 An. already quoted; and that of the Gas Light Company v. Haynes, 7 An. 114. For the mortgage of Hays and wife was connected with, and contingent upon, the general administrar tion of the affairs of this insolvent corporation, and cannot be confounded with the other personal obligation of one of the mortgagors, John W. Hays, as Collector of Taxes; with which obligation the liquidator had nothing to do, its enforcement being the duty of a distinct officer. Neither the process verbal of adjudication, nor the Sheriff’s deed to Brown are before us ; being omitted from the record by the agreement of counsel. But it is alleged in argument by appellant, that the sale was made subject to the stock mortgage on the property sold. This is a matter which might be of importance, had the property been adjudicated in reality, to a third person ; and were it now in the hands of a third possessor. But Mrs. Hays, the real adjudicatee, and actual possessor, is herself a mortgagor, and bound, in solido, for the debt secured by the mortgage. And as to the plaintiff, we are bound to presume notice, at the date of Mill’s mortgage, of the existence of the stock mortgage. For in the mortgage from Mrs. Hays to Mills, the production of a certificate of mortgages by the notary, is especially waived. This waiver we hold to be equivalent to an acknowledgment of notice of the stock mortgage then extant upon the records of the parish.

Judgment of the District Court reversed ; and judgment for defendant, with costs in both courts.

Voorhies, J., absent.

Merrick, C. J., took no part in this decision, having been of counsel on the the first series of bonds.


author: Merrick, C. J. Buchanan, J.,

text:
    James P. Thompson v. D. D. Kilcrease et al.
    When tlie price of property is made payable in instalments, tlie vendor may sue for recession of the sale at once, upon tlie the failure of vendee to pay the first instalment.
    The original vendor seeking to rescind the sale, is only compelled to reimburse tlie value of improvements made by a possessor in good faith. Improvements made after the institution of the suit to rescind the sale, must be considered as made by the possessor in bad faith.
    from the Tenth District Court, Parish of Carroll, Farrar, J.

      J. W. Montgomery, for plaintiff and appellee. Goodrich & Defrance, Selby and Short & Parham, for defendants and appellants.
   Merrick, C. J.

This suit was brought to cause a sale of three hundred and twenty-three and-a-half acres of land in the parish of Carroll, to be rescinded for the non-payment of the price.

We shall place the case upon the facts as conceded in the argument, and consider only the questions discussed at the bar, and in the briefs.

We therefore assume (as conceded) that the instrument executed on the 26th day of November, 1855, was a sale from the plaintiff to the defendant, D. L>. Kil-crease, of the land in controversy. The price was $3235, for which it was agreed, that the defendant, Kilcrease, should give his promissory note payable one day after date, with eight per cent, interest thereon from the date thereof, to bo paid in the following manner, viz : the net proceeds of twenty bales of cotton to be paid annually, the amount thereof to be applied to the credit of the note until the payment of the same.

Kilcrease went into possession of the land, and after making some improvements sold the same to the defendant, Thomas L. Beard, in August, 1856, at an advance of three thousand two hundred and thirty-five dollars, Beard assuming to pay his vendor’s debt to Thompson. On the 28th day of January, 1857, the plaintiff demanded, through a Notary Public, a performance of the contract of Beard and Kilcrease in vain, and a formal protest was made. The same day Beard sold the tract of land to the defendant, Emily Knox, wife of W. L. Knox, she assuming the obligations of Kilcrease and Beard.

This suit was commenced in May following, against D. McNeil, the proprietor, Mrs. Knox, Beard and Kilcrease. In September, of the same year, 1857, Madam Knox sold to McNeal, who assumed her liabilities on account of the land.

The District Judge awarded to the plaintiff a dissolution of the sale, and to the defendant, Kilcrease, five hundred dollars, the value of his improvements. Beard, Mrs. Knox and McNeil, prosecute the appeal.

The plaintiff prays for an amendment of the judgment in his favor as against Kilcrease. The latter alleges that he is only an appellee, and denies the right of the plaintiff to claim an amendment of the judgment; nevertheless, demands that instead of five hundred dollars, he be allowed one thousand dollars, as against the plaintiff, for improvements.

It has been contended, on behalf of the appellants counsel, that the mode in which the payments were to be made, formed a part of the promissory note, and was the same as though the mode of payment had been written in the note itself; that the installments were to be in sums equal to the net proceeds of twenty bales ' cotton annually; that the non-payment of one instalment at maturity, did not make the residue of the note exigible, and that the sale could not be rescinded until the maturity of, and default in paying the last installment, and that the promise to pay over the net proceeds of the cotton, is under Arts. 1762,1763, an independent contract.

It may be conceded, for the purposes of this decision, that by the agreement, the note was to be paid in installments, and that the maturity and non-payment of one installment, did not enable the plaintiff to sue for the residue of the note, but this will not aid the case. The neglect and refusal to pay a single installment, in our opinion, gives the vendor the right to annul the sale. Whenever the vendee refuses to comply with the stipulation to be performed by him the vendor is obliged to wait no longer, but may at once demand a dissolution of the contract.

Why should the vendor, who has made a sale on long time, be compelled to see his vendee enjoy the revenues of his property year after year, without paying any portion of the price, or even the interest upon the money ?

The Oode says : If the buyer does not pay the price, the seller may sue for a dissolution of the sale. O. 0. 2539. What is meant by this article may be perceived by comparing it with Art. 2041, which says : “ A resolutary condition is implied in all commutative contracts, to take effect in case either of the parties do not comply with his engagement" A party does not comply with his agreement when he refuses to pay the first installment of the price which has fallen due and which he has contracted to pay. Such also, is the view of Troplong on this subject. See Trop. vente, Nos. 642, 646. The promise to pay the price by installments, or in any particular mode, does not make the contract any the less commutative, for in the contract of sale the price is the equivalent or consideration for the thing. 0. C. 2414. Pothier, vente, No. 2.

The plaintiff contends that he ought not to be compelled to pay for the improvements made upon his property by the vendee, who has refused to pay the price. It appears to us to be a consequence of Art. 2040, that he must pay for the improvement made upon his property prior to the putting of the defendant in mora, or a demand for the dissolution of the contract. For Art. 2040 requires matters to be placed in the same state as though the obligation had never existed, and obliges the creditor to restore what he has received. If he is to restore what he has received, and he cannot enrich himself at the expense of the vendee, he must restore what he receives in improvements jilaeed upion the jmoperty in good faith and returned to him, as well as sums of money or anything given in payment. The revenues of the property during this period were nothing.

As to the improvement made by McNeil after the institution of the suit, which consisted in clearing land and ditching, we are of the opinion that he cannot recover.

They must be considered as made by a possessor in bad faith, and being of a kind not susceptible of being removed, the plaintiff cannot be compelled to declare whether he will take the same, or cause the defendant to remove them.

In regard to the person entitled to recover for improvements, we are not prepared to say that the District Judge erred in awarding the five hundred dollars to Kilcrease If he receives the amount, he must account to his vendee in a settlement between them, and it will be understood in this action we do not undertake to settle the respective rights of the defendants, there being no demand in warranty between them.

The defendants did not apply to the court for an extension of time, in which to make payment.

Judgment affirmed.

Buchanan, J.,

concurring. On the 2d May, 185V, plaintiff filed his petition alleging the facts, as recapitulated in the opinion read by the Chief Justice, and moreover, that one Daniel McNeil was then in possession of the land, by what title petitioner did not know; further alleging, that petitioner had never been paid any thing for his property thus sold; and that all of the said purchasers were well acquainted with this fact when they respectively bought the said land ; that the continual change of title and possession, was intended to harass petitioner, and to elude his pursuit of the property, as well as to complicate and confuse the legal proceedings, which he might institute therefor. The petition concludes by praying citation for all the parties named above; for rescission of all the sales afore mentioned ; for recovery of the land sold, free from any claims or incum-brances placed thereupon by said parties; for one thousand dollars damages, and for general relief. Citation was served on all the defendants, Kilcrease, Beard, Mrs. Knox and McNeil, within a few days after the filing of the petition.

On the 23d November, 1857, the defendant, McNeil, answered the petition, alleging himself to be in possession of the land claimed by virtue of a purchase by authentic act, from Mrs. Emily Knox, of date the 20th September, 1857, a copy of which conveyance he annexed to his answer. Respondent, McNeil, averred that he bought the land in good faith, and he and all the intervening purchasers under plaintiff, were abundantly able and willing to pay all that was due now, and when it was due; but that plaintiff refused to receive any payment, unless all the consideration or price was at once paid to him, as well what was not due, as what was due; that the sale cannot be rescinded, because the parties cannot be replaced in their original position ; respondent having expended more than three thousand dollars worth of labor upon the land since ho bought it; wherefore he prayed for judgment, quieting respondent in his title.

Defendant Beard answered, admitted the sales mentioned in the petition, and prayed for the dismissal of the plaintiff’s demand.

The defendant Mrs. Knox, pleaded the general issue; prayed that plaintiff’s demand be rejected.

Defendant Kilcrease, pleads the general issue; admits the conveyances as alleged; avers that while in possession of the land, under his title from plaintiff, the respondent had improved the land, built a house thereon, fenced, and cleared, and put in cultivation, about thirty or forty acres of land; that respondent has always been ready and willing to comply with his contract; that the land has considerably enhanced in value; that all the purchasers have been willing to perform their obligations under the sale, by paying the price in the manner therein stipulated; but that plaintiff has refused to receive any thing less than the whole price. This respondent concludes by demanding in reconvention, from plaintiff in case there should be a judgment of rescission, the sum of three thousand dollars, as the value of his improvements.

On these pleadings, the parties went to trial; and after hearing evidence, the court rendered judgment in favor of plaintiff against all the defendants, for the land described in the petition. Judgment was also rendered in favor of defendant, Kil-crease, against plaintiff for five hundred dollars, for improvements. Defendants Beard, Mrs. Knox and McNeil, have appealed. Plaintiff and defendant Kilcrease have both answered the appeal, praying, each of them, an amendment of the judgment in his favor. Plaintiff asks that he be relieved of that portion of the judgment which condems him to pay five hundred dollars for improvements. Kilcrease asks that the judgment in his favor against plaintiff for improvements, be increased from five hundred to one thousand dollars. Neither of these prayers can be entertained.

Neither Thompson nor Kilcrease have appealed. They are both appellees. The right given by Art. 888 of the Code of Practice, to an appellee, to have judgment amended in this court in his favor, is a right to be exercised in the form of an answer to an appeal, and of course against an appellant alone.

If this question of improvements were before us, which it is not, I should say that nothing is to be allowed on that score, as against plaintiff; the claim for improvements being offset by the fruits, which have been received by the defendants. It is in proof that the land has been in cultivation since the sale, and that cattle and hogs have been kept on it by defendants. Kilcrease sold to Beard a standing crop of cotton and corn, and a stock of cattle and Logs. See the cases of Haynes v. Harbour, and Yeatmen, Wood & Co. v. Erwin, lately decided.

Eor the foregoing reasons, I concur in the affirmance of the judgment in this case.

Voorhies, J., concurred in this opinion.

Cole, J., absent.


author: Voorhies, J.

text:
    J. B. D. Vignié v. Gouaux & Viala—C. Rouger, Intervenor.
    Tho substitution of a new lessee to the old. one, accompanied by the discharge of the latter, is a novation, under the second section of Art. 2185 C. C.
    from the Second District Court of New Orleans, Morgan, J.

      P. S. Byron, for plaintiff and appellant. E. Filleul, for Gouaux <& Viala. L. Costera, for Auby D’Re Roupe. Preaux (& Derbes, for C. Rouger.

   Voorhies, J.

The plaintiff proceeded against the defendants, Gouaux <& Vi-alla and G. M. Aubry D’lle Roupe, to recover from them in solido, the sum of $1,300, for two months’ rent actually due and eleven months’ rent to be due, monthly, from the month of March, 1857, to the 1st of April, 1858, at the rate of $100 per month. This was the unexpired term of a lease originally executed by tho plaintiff to the firm of Angoz dt Co., on the third day of April, 1855, for the term of three"years.

A writ of provisional seizure was placed into the hands of the Sheriff, who then levied upon certain articles and effects, part of which were found in the leased premises, and part in the possession of Charles Rouger, the intervenor.

The latter, in his petition of intervention, claims the ownership of the articles seized in his possession ; he further denies the existence of the privilege set up in the plaintiff’s demand, and he avers that he was merely the sub-lessee of the defendant, D'Re Roupe, whom he has punctually paid. The petition closes with a claim of $500 damages incurred by the wrongful act of the plaintiff and of the Sheriff, in levying on his property. '

The plaintiff, in answer to the demand of C. Rouger, sets up anew his right of privilege on the articles claimed, alleging that fifteen days had not elapsed from the time of their removal; and furthermore, that this intervenor and the defendant, D’lle Roupe, who were partners in a tombola enterprize, are colluding for the purpose of defrauding him in this transaction.

The other defendants, Gouaux & Viala, state in their answer, that in the month of June of the year 1856, the plaintiffs’ lessee, Angoz & Co., transferred to them his lease, expiring on the 1st of April, 1858 ; that they occupied the premises from the month of June, 1856, until the month of March of the following year, when they themselves transferred and abandoned the lease‘to Aubry D’Re Roupe, with the consent of the plaintiff, who discharged them from all liabilities, permitting them to remove all that they had on the premises, except a show case, which, by consent, was there left for the purpose of being sold for the respondent’s benefit. The detention of this property serves as a basis for a roconven-tional demand of eight hundred dollars against the plaintiff.

The defence set up by Aubry D’Re Roupe, need not be examined, 'inasmuch as lie appears before iliis court as an appellee, and does not pray for an amendment or reversal of the judgment of the District Court.

The evidence establishes satisfactorily that the defendants, Gouaux & Viala, have transferred their unexpired lease to D’lle Roupe, their co-defendant; and that, after making inquiry upon the subject, the plaintiff accepted this substitution or change of lessee. The substitution of a new lessee to the old one, accompanied by the discharge of the latter, is a novation, under the second section of Art. 2185 of the Civil Code.

After a careful examination of the facts, connected with the third opposition filed by Charles Rouger, the conclusion forces itself on the mind that, however unfavorable to him the circumstances of the case may appear at first blush, ho was not colluding to defraud the plaintiff. Yiewed as a sub-lessee (and under the Art. 2696 of the Civil Code, he might well have been the sub-lessee) of D’lle Roupe, the payment of the rent by the former to the latter, even on the day the property in controversy was levied upon, would not of itself implicate fraud and collusion on the part of these parties. For it must be remembered, that Roupe held the written obligation of Rouger, and had the month previous offered it in payment or in pledge to the plaintiff, for the amount of rent accrued.

The defendants, Gouaux & Viala, have established their tittle to the showcase, described in their pleadings; but as it was with their own consent and for their own benefit, that it was left on the premises, it would be inequitable, in the absence of proof that the plaintiff has disposed of this article or refuses to deliver it, to pass definitively on this part of their case. Their rights in this respect are reserved.

Judgment affirmed.

Cole, J., absent.


text:
    Allen Pierse v. Charles Blunt—Curators of Oakey, Intervenors.
    A person in possession under tlie first recorded title intlie parish where the land is situated, must ho quieted in his possession, unless the claimant have a superior title.
    APPEAL from the Tenth District Court of the Parish of Madison, Farrar, J.

      Goodrich & Defiance, Hynes, and Mott & Frazer, for intervenors and appellants. Snyder iB Montgomery, for defendant and appellee.
   Merrick, C. J.

The plaintiff instituted a petitory action against the defendant to recover about 667 acres of land in the parish of Madison.

The plaintiff having sold out his pretensions to the defendant, the controversy is now between the defendant and intervenors.

As we shall decide the case upon a single point raised by the defendant, we shall only state so many of the facts as are necessary to the decision of the point.

Both parties claim through one Juan Mausol, who being in possession of a Spanish grant, obtained a confirmation and title from the government of the United States.

There are in the record what purports to be three chains of title from Mausol,

The defendant, who is in possession of the land now in controversy, holds one, and the intervenors both of the others.

As the Mausol tract lies in two parishes, and the conveyances have been of the whole tract, the question which we have to consider, is the question of priority of registry.

The Mausol grant contains 1334 14-100 acres of land, divided equally by the- Bayou Magon, between the parishes of Madison and Caroll, and consequently giving about 661 acres to each parish.

The defendant and his vendee have, until recently, treated the whole tract as within the parish of Madison. The intervenors as in the parish of Carroll. Both parties have busied themselves about the title ; the intervenors, by an application to the government at Washington, for a back concession. The defendant, by presuming the actual survey and tracing out the lines.

The oldest deed in intervenors chain of title, (the price being $225,) purports to be dated in 1827, yet was never recorded until the 13th day of December, 1839, and then only in the parish of Carroll. The oldest deed in defendants’ title (the price being $1,500) was recorded on the 29th day of June, 1840, (six-and-a-half months after intervenors,) but only in the parish of Madison.

So far as the defendant and intervenors are concerned, it cannot be pretended that the latter have superior equities.

The defendant, then, who has the land in the parish of Madison in possession under a recorded title, and who has, in good faith, improved the same, must be maintained in possession, unless intervenors have a superior legal title.

The intervenor’s title was not recorded in the parish of Madison, where the land in controversy is situated, until after defendant’s title was recorded. The law is express that in order to effect “ lands or other immovable property,” the act of sale must be recorded in the parish “ where the lands or other immovable estates are situated.” See Act of 1813, 2 Moreau, p. 287.

The law does not say, that where lands are situated in two or more parishes, it is sufficient to record in either. It says, that the act of sale shall be recorded in the parish where they are situated. Six hundred and sixty-seven acres of these lands, perhaps the most valuable and sufficient for a plantation, were in the parish of Madison. Directly across, a deep bayou which can only be crossed by a ferry, lie six hundred and sixty-seven acres of this same original grant, in the parish of Carroll. Now, as courts of justice are not permitted to distinguish where the law does not distinguish, we are unable to discover any good reason why the recording of an act of sale in one parish, should effect an equal body of lands in another.

When the defendant’s vendor purchased of Mausol, the whole tract was supposed to be in the parish of Madison. It was enough for him to examine the records of that parish, and his prior registry must protect him as to the lands embraced in his title, lying in the limits of the parish last named.

Judgment affirmed.

Cole, J., absent.


text:
    Sampson & Keene v. E. P. Noble.
    Tho enrollment of a steamboat is a record, of which tho collector of customs is the custodian, under tho Acts of Congress, and a copy thereof, duly certified by the collector, is competent evidence ; so is such a copy of the act of sale recorded under the Act of Congress of 1850.
    from tho Sixth District Court of New Orleans, Ilowell, J.

      Race & Foster, for plaintiffs and appellants. Ogden & Stansbury, for defendants and appellee.
   Buchanan, J.

The plaintiffs offered copies of the enrollment of the steam’ boat Compromise, and of the bill of sale of said boat to defendant, certified by the Deputy Collector of the port of New Orleans. The defendant, by counsel, objected to these documents as evidence, on the ground that the collector or his deputy, had no authority in the law to grant such certificates, so as to make them evidence in a court of justice. This objection was sustained by the court.

In this ruling, the court below erred. The enrollment of the steamboat was a record, of which the Collector of the Customs was the custodian, under the Acts of Congress of 1189,1792 and 1793. Statutes at Large, vol. 1, p. 55, 287 and 305. By these Statutes, it is made his duty to deliver certificates of registry and enrollment of vessels. And as to the copy of the bill of sale, tho Act of Congress of the 29th July, 1850, (Statutes at Large, vol. 9, p. 440,) requires conveyances, hypothecations, &c. of vessels to bo recorded, in the office of tho Collector of tho Customs where the vessels are registered or enrolled, and provides (section 4) that the Collector shall furnish certified copies of such records on the receipt of fifty cents for each bill of sale, mortgage or other conveyance.

The Article 2249 of the Civil Code, and the cases of Johnson v. Cox, 13 La. 537, and White v. Kearney, 9 Rob. 499, relied upon by defendant’s counsel, are not applicable to this case. A rule was taken upon defendant to produce his bill of sale on trial, which rule was served upon defendant and answered by him. After which the record from the customhouse was offered.

Plaintiffs proved their account sued upon to be correct; and that the furniture was selected by the captain of the steamboat, and delivered on board the same by plaintiffs.

As the bill of sale of tho steamboat Compromise, annexed to the bill of exceptions above mentioned, shows that the defendant was sole owner of the said steamboat when the furniture was sold for the use of that boat by plaintiffs, the defendant is bound to pay for the same. The authority of the captain to make this purchase will be presumed, in the absence of any proof to the contrary, and of any offer to return the furniture.

Judgment of District Court reversed; and judgment in favor of plaintiffs against defendant for $420 60, with interest from judicial demand, and costs of both courts.

Cole, J., absent.