author: MüEnery, J.

text:
    No. 11,384.
    Philip M. Betz vs. Francois Limingi.
    Private actions do not lie for breach of public duty.
    Section 36 of Act 20 of 1882, the charter of the city of New Orleans, requiring owner of lots to keep the banquettes in front of same in repair, and Act 114 of 1886, authorizing the City Council to establish a uniform grade of banquettes, and requiring tlie owner of lots fronting on the banquettes to make the grade, imposes upon the lot owner a public duty, and a person injured*by the neglect of the lot owner to repair the banquettes, or to make the uniform grade, can not bring a private action against the owner of the premises for the injury sustained for this breach of public duty.
    There has been no grant of power to the city of New Orleans to change the general law and to transfer the responsibility for injuries resulting from defects in the public ways, from the public to an individual who is not directly responsible for their existence.
    The duty of the property owner in repairing the banquettes and conforming to an established grade, is to the whole public of the city, all of its inhabitants who own in common the banquettes. The punishment for breach of this public duty must be in some form of public prosecution and not by a suit for damages by an individual.
    There are certain burdens imposed upon individual members of a community for the benefit of individual and particular members of the same, which, for a violation of the duty imposed may give rise to an individual right of action as well as a public prosecution.
    The distinctions between the duty imposed as due to the collective community, and that due to individuals is readily distinguished by the nature of the obligation.
    APPEAL from the Oivil District Court, Parish of Orleans. King, J.

      B. B. Forman Attorney for Plaintiff and Appellant:
    Property owner bound to repair paved banquette. Sec. 36, Act 20 of 1882 (City Charter). (
    Responsibility for malfeasance. C. O. 2315.
    Responsibility for non-feasance. O. C. 2316.
    Louisiana sidewalk cases, damages allowed. O’Neill vs. City, 30 An. 220; McCloughry vs. Einney, 37 An. 27.
    Obstructions in highways nuisances. Wood on Nuisances, Sec. 16; Rose vs. Miles, 4 M. and S. 101; Barr vs. Stevens, 1 Bibb (Ky.), 293; Hughes vs. Heiser, 1 Binn (Penn.), 463.
    .Private remedy exists where there is statutory obligation to repair. Wood on Nuisances, Secs. 315, 316.
    .'Defective highway a nuisance. Wood on Nuisances, Sec. 307.
    .A highway, a way over which any person has a lawful right to pass. Wood on Nuisances, Sec. 233.
    'The strictest degree of liability to repair. Wood on Nuisances, Sec. 316.
    Unsafe highway a nuisance. Wood on Nuisances, Sec. 317.
    ‘.The traveler has a right to rely upon the streets as being safe. ■ Wood on Nuisances, Sec. 331.

      The obligation to repair is to keep the road in good repair. Ordinary care no defence. Good repair at all hazards. Wood on Nuisances, See. 320.
    Horton vs Ipswich, 12 Gush. (Mass.) 488; City of Madison vs. Ross, 3 Ind. 236; Chicago vs. Major, 18 111. 349; Winship vs. Enfield, 42 N. H. 197; Erie City vs. Sehwingle, 22 Penn. 384.
    Sidewalks must be kept in repair throughout the whole width. Shearman and Redfield on Negligence, 3d Ed., Sec. 385, p. 467.

      Chrétien & Suthon Attorneys for Defendant and Appellee:
    No right of action exists against a front proprietor for personal injuries sustained by a pedestrian on the sidewalk. The fee being in the city, the action is against the municipal corporation. O. O., Arts. 454, 458; 14 An. 283.
    Dillon on Municipal Oorp., 3d Ed., p. 1028. This is the case, even where there is an ordinance imposing upon the abutting proprietor the duty of maintaining his sidewalk in safe condition.
    Taylor vs. Lake Shore & Michigan R. R., 45 Mich. Rep., p. 74.
    ■93 N. Y. 12; 48 Conn. 525. Sec. 36 of Act 20 of 1882 (Charter of New Orleans) is a matter of regulation between the city and its corporators, and does not impose a statutory liability upon the abutting proprietor.
    It is within the power of the City Council to establish the grade of sidewalks. An ordinance fixing the grade, followed by notice, are necessary to impose a legal duty on the front proprietor. Acts of 1886, No.' 114. No such ordinance is shown in this case.
    Where there is no legal duty to raise the grade, there is no cause of action to recover in case of negligence. Elliott on Streets and Roads, p. 636.
   The opinion of the court was delivered by

MüEnery, J.

The plaintiff’s wife was injured on the banquette in front of defendant’s house, in'the city of New Orleans, while passing in front of the same. It is alleged that the injury was in consequence of the defendant having neglected to repair the banquette. It is not alleged that the injury resulted from any obstacles placed on the banquette by defendant. There was judgment for defendant, rejecting plaintiff’s demand. The plaintiff appealed.

Section 36 of the charter of the city of New Orleans provides that all paved banquettes in the city of New Orleans shall be kept in repair by the owners of the real property fronting thereon,” and Sec. 8 of the same says the City Council shall have power to compel the owners of property or tenants to keep their sidewalks in front of such property clean and in repair.”

Act 114 of 1886 authorized the City Council to establish a uniform grade for the banquettes in the city. When the City Council in its discretion deems it necessary to alter the grade od any street it is made the duty of the City Surveyor 1 ‘ to give the grade and make it known,” upon which the proper notices shall be issued by the Commissioner of Public Works to owners of property-or their agents to conform to the newly established grade within ten days after the service of the notice. In default of the owner doing the required grading after the proper notice it is made the duty of the Comptroller of the City to have the work done at the request of the commissioner, at the expense of the owner. A certificate for the cost of the work is recorded, which becomes a lien on the property, with six per cent, interest per annum.

■ We are asked by plaintiff’s counsel in default of judgment in his favor, to remand the case to correct certain alleged errors of the District Judge in his ruling in reference to the scope and meaning of Act 114 of 1886.

It will be unnecessary to remand the case, for the reason that conceding all that the plaintiff asks in reference to said rulings, we da not think he is entitled to a judgment. Conceding that the defendant had failed to make repairs to the banquette, and that the-Council had ordered the banquette raised or lowered on the street, on which defendant owned the property, and that he had been served with proper notice and had failed to comply with the same, still only a public duty would have been imposed upon him, the neglect to perform which could not render him liable to an individual who had been injured on the sidewalk or banquette in consequence of the failure to repair it, or to raise or lower it in conformity to the established grade. Dillon on Municip. Corps., Sec. 1028.

In the case of Taylor vs. Lake Shore & Michigan Southern Railway, 45 Mich. 74, the Council of the city of Monroe had full and complete power over the streets, and the Legislature had granted to said city in its charter the power to compel owners and occupants of property to repair the banquettes in front of same, and to keep them free from obstructions, and snow and ice.

The plaintiff in that case sued the defendant for an injury suffered by her in consequence of slipping and falling upon the ice which had formed on the sidewalk in front of premises occupied by defendant, who had failed to remove it in accordance with the city ordinance.

Judge Cooley, the organ of the court, held: An ordinance requiring all persons to keep their sidewalks free from ice imposes a purely public duty, and persons injured by slipping on the ice can not bring private action against the owner of the premises.” The syllabus of the ease is brief, and is as follows: “ Private actions do not lie for breach of public duty.”

In the case of City of Hartford vs. Talcott, 48 Conn. 525, the action was by the city against the defendant to recover the amount of a judgment against plaintiff for damages for an injury, caused by ice upon a sidewalk in front of his premises.

The city had been held liable because of the duty imposed upon it to keep the sidewalks in repair and free from obstructions. The City Council of Hartford had passed an ordinance requiring every owner or occupant of a building or lot bordering upon a street with paved or graded sidewalk, to remove from the walks all snow and ice within a certain time, and imposed a penalty for the non-performance of the public duty. The ordinance was passed in conformity to a general law of the State, which placed upon municipal corporations the burden of keeping the highways in their respective limits, in a reasonably safe condition.

The court held that there was no grant of power to the City Council to change the general law and transfer the responsibility for injuries resulting from defects in the way from the public to an individual who is not directly responsible for their existence.

And we can find no such power, to transfer responsibility in the charter of the city of New Orleans or in Act 11.4 of 1886. The charter and Act 114, only authorized the enactment of an ordinance requiring each proprietor fronting on a street to assist the city in keeping the banquette in repair and to keep it to a certain grade.

And such seems to be the intent of the Legislature in relation to the city of New Orleans. No penalty is imposed by fine for the non-performance of the public duty imposed. The work is to be done at the expense of the owner, if he fails to do it, with an additional burden of six per cent, interest. By this legislation the city is not relieved from responsibility. It is still its duty to do the work, and as it has no authority to shift the responsibility for failure to do it, it remains answerable for injuries resulting from negligence of the owner, or its own omission to act.

It is claimed by plaintiff that under Sec. 36 of the city charter, quoted above, that the obligation to keep the banquette in repair imposed a duty upon the owner of the lot in favor of all persons who use them, and that the neglect to keep them in repair, in consequence of which any one lawfully using the banquette is injured, renders the owner liable to him in damages. But the duty imposed was not for the benefit of individuals or a particular class of individuals. The duty was to the whole public of the city, to all its inhabitants, who own the banquettes and streets in common. The neglect to repair the banquettes was such a breach of public duty that its punishment must be ins ome form of public prosecution, and not by a suit for damages by an individual. 45 Mich. 74. There are certain burdens imposed upon the individual members of a community for the benefit of a particular individual or class of individuals which, for a violation of the duty, imposed, may give rise to an individual right of action as well as a public prosecution. 16. Such actions generally spring from franchises granted by the State or some subordinate political corporation, to be used for the benefit of the individual members of the community, or from the performance of a public duty by an official for the benefit of a particular individual.

The distinction between the duty imposed as due to the whole community collectively, and that due to individuals, is readily distinguished by the nature of the obligation.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 11,192.
    American Homestead Company vs. Mrs. Mary Ellen Linigan.
    In. the absence of fraud or demonstrable error a party recognizing the existence of a corporation by subscribing for its stock can not defend an action on his subscription by impeaching the existence and capacity of the corporation.
    The defendant having taken a loan as a stockholder, can not sustain the plea of the want of capacity of plaintiff to sue for the recovery of the amount loaned.

      After issue joined, the filing of an exception of no cause of action will not be heard to defeat the admissions of the answer.
    The exception must be decided with reference to the issues at the time it is filed.
    The answer and the testimony, that had been admitted without objection, at the time the exception was filed, showed an issue of indebtedness and precluded the possibility of returning to the allegations alone of the petition, to determine whether they were sufficient to maintain the suit.
    On the Hekits.
    The defendant has a right to the amount paid by her to the association, and to her annual dividends to the date of default, and they are credited on her indebtedness.
    The attempt to forfeit these amounts fails.
    The association provided that every member should pay weekly instalments on each of his shares; that, as often as the funds of the association should warrant it, the same should be put up to competition among the members, and the member offering the highest premium should be entitled to them, and should secure the payment by satisfactory security and pledge of shares, and should pay from the time of purchase interest at the rate of six (6) per cent, per annum in weekly instalments on the loan and premium capitalized, as a redemption fee; that whenever any stock which had been pledged should become equal in value to the indebtedness for which the same was pledged, the stock should cancel the indebtedness and it, the indebtedness, should be considered satisfied and be discharged.
    The defendant purchased shares according to the articles of the association, received the amount of these shares, deducting the premium or discount, and gave security to secure both the loan and the discount.

      Held: That the note and mortgage given as security are valid, and the sums secured are not usurious.
    PPEAL from the Civil District Court, Parish of Orleans. . King, J.

      E. D. Lebreton and Henry Ghiappella Attorneys for Plaintiffs and Appellants cite:
    East Pascagoula Company vs. West, 13 An. 545; Liverpool and London Insurance vs. Hunt, 11 An. 628; Armorer vs. Case, 9 An. 242; Devall vs. Succession Watterston, 18 An. 136; Smith vs. Smith, 3 Dessansnre Sa. Car. 657; Danforth’s Digest (verbo Estoppel), p. 411; Wallace vs. Loomis, 97 U. S. 146; Close vs. Glenwood Cemetery, 107 U. S. 466; Daniels vs. Tearney, 102 U. S. 415; Casey vs. Galli, 94 ü. S. 673; Pochelu vs. Kemper, 14 An. 307.
    Williams vs. Lodge Masons of Monroe, 38 An. 620; Polar Star Lodge vs. Polar Star Lodge, 16 An. 53; Curien vs. Santini, 16 An. 27; Atehafalaya Bank vs. Dawson, 13 L. 506; Riggin vs. Union Bank, 18 An. 677; 2 Kent’s Commentaries, p. 313.

      Act No. 151 of 1888, p. 212, defining and declaring homestead or building associations, societies and companies, corporations for the promotion of works of public utility and advantage; Smith’s Commentaries on Statutory Construction, p. 293, Sec. 155; Smith’s Commentaries on Statutory Construction, p. 695, Sec. 551; Cooley’s Cons. Limitations, pp. 184 et seq.; Sedgwick on Statutory Law, pp. 37 and 252; Municipality No. 1 vs. Wheeler, 10 An. 745; 1 Marcadé, Sec. 62.
    Act No. 115 of 1888, p. 177; Act of 1844, p. 15; Act of March 20, 1856 (relative to interest) ; Act of March 2, 1860 (relative to interest) ; R. C. O. 2924,1939; Bryant vs. Louisiana State Bank, 8 M. 310; 39 An. 788; 29 An. 679; 6 R. 305; 18 An. 619.

      Dinhelspiel & Hart Attorneys for Defendant .and Appellee:
    A body acting as a corporation but without authority of law can sue only in the individual names of the members. R. C. C. 446; 29 An. 369.
    Usurious interest may be recovered by way of compensation, even after the lapse of twelve months. 2 La. 386; 13 An. 233; Thompson on Building Associations, p. 102: 39 Pa. St. 137, 154; 26 Pa. St. 269; 95 Penn. 122; 28 N. E. 801; 25 Ohio St. 208; 3 Ohio St. 517.
    A pledgee as such, can not become the owner of the pledged property under any circumstances. R. C. O. 3165. ,
   The opinion of the court was delivered by

Breaux, J.

In 1883, the “ American Homestead Company ” was organized.

The charter sets forth that the association shall have authority to loan money on security and to sue and be sued; that the shares shall be paid in weekly instalments.

It was agreed that each stockholder, not in arrears, should be entitled to receive a loan of two hundred dollars for each share of stock held by him (less premiums), when the funds in the treasury justified ; the interest on the loans was fixed at the rate of six per cent, per annum, in weekly instalments; fines were provided for nonpayment and forfeiture of stock.

The stock pledged, whenever it should become equal in value to the indebtedness for which pledged, should be canceled.

It was stipulated, under the terms of the charter, to divide annually the net earned profits, pro rata among the shares of stock not in default.

By act dated December 26, 1887, plaintiff made a loan to the defendant stockholder of five thousand and two hundred dollars, including therein the premium bid for the loan, for which she signed her note — authorized by her husband — to the order of plaintiff, on its face payable six years after date; subject to the terms and conditions of the association; bearing six per cent, per annum from date, and secured as to its payment by a special mortgage and vendor’s lien.

This sale was preceded, about six months previous, by a sale from the defendant to the plaintiff for the sum of three thousand seven hundred and forty-four dollars.

The property being encumbered with mortgages accounts for the delay which elapsed between the two sales.

The object of these two sales was to secure a loan, and the difference in price between the sale by the defendant to the plaintiff and by the plaintiff of the same property to the defendant was the amount of the premium or bonus for the loan.

The conditions were, if the maker of the note, the defendant, paid the interest on the note weekly and the instalments on her stock punctually, the amount was to remain subject to a settlement and payment at the termination of the affairs of the association; but in case the purchaser failed to pay as agreed, the note became due. The plaintiff sues to recover the note and interest, also taxes, insurance premiums paid for her on the property mortgaged, attorney’s fees and costs, and claims a mortgage and vendor’s lien on the property conveyed by it to the defendant.

The defendant has not paid interest and other charges as alleged.

The defendant interposed an exception, and therein alleged that the plaintiff is not a legal corporation, and that it is absolutely without capacity to prosecute this suit in its corporate name.

The defendant also excepted on the ground “if the plaintiff can sue at all that the suit was not authorized by a resolution of the Board of Directors.”

These exceptions were overruled.

In her answer the defendant denies plaintiff’s allegations, says that plaintiff had no right to forfeit her stock, and that the value should be credited to the note upon which suit is brought; that she was charged interest on the amount of the note of five thousand two hundred dollars, when she should have been charged with interest only on the actual amount received by her, and that the interest actually charged should be credited to the amount actually due by her. She charges usury. She admits the payment of the taxes and insurance by the plaintiff as alleged, and her liability therefor.

She prays that plaintiff’s demand be rejected, with costs, or if any judgment be rendered against her that it should be for the amount received by her on December 26, 1887, with six per cent, interest on that amount only, and that she should be credited with interest illegally paid, with the value of the stock pledged, and that the five per cent, attorney’s fees be limited to the amount actually due.

After the answer had been filed and part of the evidence heard, the defendant interposed the exception of no cause of action. ,

The District Oourt pronounced judgment in favor of the plaintiff for the sum of three thousand seven hundred and forty-four dollars, with six per cent, interest from August 26, 1887, subject to a credit of one thousand five hundred and seventy-one dollars and ninety - six cents, the amount the court decided due to her by the plaintiff on twenty-six shares of her capital stock on March 29, 1892, and subject to a second credit of one hundred and forty-three dollars interest paid on the three thousand seven hundred and forty-four dollars, part of which the court held extinguished the interest due on the last mentioned amount on February 12, 1888, and the remainder was credited and applied as partial payments on the interest due on this date.

Interest and taxes paid were allowed, and five per cent, attorney’s fees on the three thousand seven hundred and forty-four dollars, with conventional mortgage and lien on the property ordered to be sold.

From this judgment the plaintiff appeals.

ILLEGALITY OP THE CORPORATION AND THE WANT OP AUTHORITY TO SUE IN THE NAME OP THE AMERICAN HOMESTEAD COMPANY.

This company was organized under Art. 688 of the Revised Statutes of 1870, in which there is no reference specially made to building associations. The defendant alleges and argues that it was not the object in adopting the statute to authorize the forming of such companies.

Her counsel correctly concede that if she has been benefited she can not plead the want of capacity in plaintiff to make the loan and contract, as was entered into in this case.

They argue, however, that the act of incorporation being an absolute nullity, because unauthorized by law, the persons thus organized have the right to sue only in their individual names for whatever money be due and not as a corporate body.

We are referred to Art. 446 of the Revised Civil Code as the only article under which plaintiff can proceed. The defendant in her dealings with plaintiff does not charge fraud or error. She treated with it in all respects as being a legal corporation. She became one of its stockholders and sought thereby the benefits it offered to incorporators.

Her taxes were paid by it, premiums of insurance and an amount borrowed, and she fully recognized the legal existence of the corporation. She participated in the annual dividends. She can not be heard to impeach the existence and capacity of the corporation of which she was a member.

The illegalities on which the appellee relies might, perhaps, have been sufficient cause for defence on the part of third persons injuriously affected by such transactions, bub she is estopped from denying the existence of a corporation from which she as a stockholder and on account of her shares has received benefits.

The subscriber is under obligation to perform the promise distinctly made and pay all that is legally exigible. Having voluntarily acted as a corporator and exercised privileges which belong to that capacity, there is reason estopping her from denying the validity of the charter.

The question was decided in Casey vs. Galli, 94 U. S. 680.

The court said: “Where a shareholder of a corporation is called upon to respond to a liability as such, and where a party has contracted with a corporation, and is sued upon the contract, neither is permitted to deny the existence or the legal validity of such corporation. To hold otherwise would be contrary to the plainest principles of reason and of good faith, and involve a mockery of justice. Parties must take the consequences of the position they assume. They are estopped to deny the reality of the state of things which they have made appear to exist, and upon which others have been led to rely. Sound ethics require that the apparent in its effect and consequence should be as if it were real, and the law properly so regards it.”

In Eaton et al. vs. Aspinwall, 19 N. Y. Court of Appeals, p. 119: “ A defect in the proceedings to organize a corporation is no defence to a stockholder sued to enforce his personal liability, who has participated in its acts of user as a corporation defacto, and appeared as a shareholder upon its boobs when the debts for which he is sued was contracted.” See also Rice on Ev. 891, 1st Bd.

In Liverpool and London Fire and Life Insurance Company vs. E. C. Hunt, 11 An. 623, a similar principle was laid down, and the court sustained a suit for the restitution of money paid to the defendant, who denied the existence of the company.

In East Pascagoula Hotel Company vs. James West, 13 An. 545, the stockholder was not permitted to set up, by way of defence, any illegality in the charter, or any informality in the organization.

It is true that the case of Workingmen’s Accommodation Bank vs. Converse, 29 An. 370, is not absolutely in line with these and other State and United States decisions upon the subject. Article 446 of the Civil Code is given in this case the effect of a prohibitory law. The authority to stand in judgment is one of the rights to which the defendant consented in becoming a stockholder. She is as much precluded from denying these rights as she is from denying the validity of the charter. The clause of the act of incorporation granting the authority is not in contravention.of laws made for the preservation of public order or good morals.

It is not of such a prohibitory character as that it may not be waived and bind the party waiving.

The principle that “ corporations, unauthorized by law, or by an act of the Legislature, enjoy no public character and can not appear in a court of justice ” is binding and must be given full effect as against third persons, as expressed in the Converse decisions (29 An. 370), but this requirement ceases when parties choose to so contract as to absolutely bind themselves and receive actual benefits from which they can not.be released without its being contrary “to the plainest principles of reason and good faith.”

In the cited case a secretary and the sureties on his bond were sued.

The relations of a stockholder are nearer to the company in so far as relates to the responsibility for the charter and other acts of organization. In this may be found, sufficient difference in the two cases to maintain the former in its entirety.

Be this as it may, the difference of our views from those expressed in the Converse case is not in any event great. In so far as relates to stockholders, however, the authority of that decision must yield to the number of decisions of the State and the United States Supreme Courts.

AUTHORITY OF THE BOARD OF DIRECTORS TO SUE.

The defendant further excepts on the ground that, if the plaintiff can sue, the institution of this suit was not authorized by a resolution of the board of directors.

The resolution adopted is plain and directs the company to foreclose the mortgage against the defendant.

NO CAUSE OF ACTION.

The amount is alleged as being due by the. wife. The note and mortgage were signed by her as maker and mortgager.

They are due by her.

The petition substantially sets forth the claim.

The defendant admitted, in effect, that whatever amount might be due was due by her.

The exception filed after the answer had been filed could not de-. stroy the effect of the joinder of issue and of the admission of the answer.

THE POINTS CONTROVERTED ON THE MERITS.

The first question for our consideration relates to the forfeiture vel non of defendant’s stock.

In reaching a conclusion we have written a. brief statement of the plan and motive of building associations as we understand the scheme.

They are founded on the theory that it is possible for a given number of persons to pool their savings each month, until the total amounts to a sum sufficient to make it an object, to divide it among the contributors.

That if each monthly collection be invested the revenue pro tanto will be increased and the time within which to accumulate the. amount of savings contemplated shortened.

The idea being to enable persons to own their homes, the moneyisinvested primarily among those members who choose to take loans for that purpose.

The borrower in paying interest on this loan pays a part to himself; he increases the savings that are partly his.

He thereby anticipates payments and at once gets a house to be paid for in a number of years.

For the reason that there are a number of applicants for these loans they are offered to the highest bidder.

The bid is the discount, the premium — that is, the difference between the par value of the shares and the sum loaned to the borrower.

In forming these organizations there is generally an agreement that, if a member borrows he will be entitled to receive by way of loan or advancement, an amount equal to the par value of the shares he holds less the premium; also one regarding the forfeiture of stock and the privilege of withdrawing from the association without being subject to a forfeiture of the money paid.

This last privilege manifestly is most valuable and one that the defendant has.

Regarding the forfeiture of the sums paid by the defendant the counsel for plaintiff in the last brief direct attention to the fact that plaintiff bases no demand in the prayer of the petition for the stock itself, and that it is not seeking to obtain a decree recognizing the validity of a forfeiture, and that the question of forfeiture is not before the court.

The answer specially controverts plaintiff’s right to forfeit her stock upon different well stated grounds. Plaintiff’s allegation that the stock had been forfeited provoked the issue, although not followed by prayer for a recognition of the validity of the forfeiture.

The question of forfeiture is now inseparable from the issues as presented for solution.

Counsel for the plaintiff in their brief state that should the question of forfeiture be considered, as in this case, they have no hesitancy in declaring most positively that in this particular instance, in view of the facts which were only developed during the trial of the case, they disclaim any intention of obtaining the enforcement of the forfeiture, and aver that defendant “should receive full credit for the sum of one thousand five hundred and seventy-one dollars and ninety-six cents, which is the aggregate of all paid instalments and declared dividends.”

Questions of plaintiff’s waiver of the forfeiture after attempt had been made to forfeit the stock; of the impossibility of forfeiting stock as attempted, it being stock deposited in pledge with the plaintiff; of deficiency of rules in matter of the enforcement of forfeiture, are disposed of by the admission of plaintiff as made through counsel as above stated, and the consent to give credit for instalments and dividends declared is binding upon it.

THE USURY ALLEGED.

The fact that a member of a building association in taking a loan for the amount of his stock agrees to pay a premium does not render the contract usurious.

The transaction is a loan not entirely free from a partnership venture.

The papers on their face show a loan of a specific amount.

The fact remains that the premium included in the note is not exclusively for the loan of money, for it is charged to the borrower for the privilege of anticipating and at once realizing on his stock. The par value was advanced to the stockholder, less the premium.

There is, however, an appearance of partnership in the transaction, in that the funds are invested in a joint enterprise of members, who will, after deducting all expenses, share the net earnings of the society.

We have Endlich, p. 335, as authority for the statement that in England the later cases admit no question as to the nature of the transaction, bub take it for granted that it is a partnership transaction, and proceed upon this as a legal postulate, that in a bona fide partnership it is not usurious; that it is a dealing with the partnership funds in which a member has an interest in common with his fellow members; that the defendant was interested in the funds when the money was advanced to her and when it was repaid.

The decisions of the courts of this country are not uniform upon the subject. In Massachusetts and New Hampshire the partnership theory obtains. The transaction is not a mere loan. The monthly payments, it was held in the former State, are for the privilege of becoming an owner of a certain number of shares, and of eventually taking the dividends to which, by the articles of agreement, he would, upon the winding up of the affairs, be entitled. All the associates had the same right. Each one would determine for himself what was the value of the prospective benefit to be enjoyed, and would make his offer for the money to be loaned according to his estimate of the worth of the shares which he was allowed to take.

Since the borrower is to have his full proportion of the benefit of all the gain he can not assert that the lender has reserved to himself a usurious rate of interest. Merrill et al. vs. McIntire, 13 Gray, 157.

The transaction can not be held usurious, because it is a dealing between them as partners in relation to partnership funds in which they had a common interest. Delano vs. Wild et al., 6 Allen, 1.

This caséis cited with approval in the case of Clarkville Building and Loan Association vs. Stephens, 11 C. E. Gr. 351, 26 N. J. Eq. 351.

By the court in that case “ the association in this case (Delano vs. Wild) was unincorporated, but the principle declared, if sound, must govern the rights of the members of an incorporated association.” See also Hoboken Building Association vs. Martin, 2 Beas, 428, 13 N. J. Eq. 428, Franklin Building Association vs. Marsh, 5 Dutch., 29 N. J. Law 225.

In New Hampshire, in another case of an unincorporated company, the court followed the Massachusetts decisions. Trustees Manchester Loan and Fund Association vs. Dunn, 43 N. H. 194.

In Georgia, in Patterson vs. The Albany Building and Loan Association, 63 Georgia, 373, the doctrine of the court is closely akin to those cases before cited by us.

In Indiana the premium was said not to be interest on money, but a contract price for the privilege of borrowing. McLaughlin et al. vs. The Citizens’ Building, Loan and Savings Association, 62 Ind. 264; 64 Ind. 600.

In Reeves vs. Ladies’ Building Association (56 Ark. 335) the syllabus reads:

“ In a loan made by a building association to a shareholder in the usual form there can be no usury, because the rate of interest payable by him is contingent upon the length of time required to pay out his share.”

In Connecticut, Iowa, Ohio ánd in Pennsylvania the courts entertain a contrary view and hold that the conditions of such loans can be enforced only when authorized by statutes.

■ The society in -this case having been organized prior to the adoption of the statute authorizing such association, viz.: prior to the adoption of Act 115 of 1888, it remains for us to consider the statute of an unincorporated association.

They are said to be partnerships only, and that their acts are to be ' judged by the law applying to persons.

“In applying this law the courts will allow themselves to be guided by the rules which were adopted by the members in forming the association, whose binding efficaoy, they in joining it, have either formally recognized and subscribed to, or precluded themselves from denying, by their participation in the society’s business and profits under these rules. These are analogous to articles of co-partnership entered into between the different members, and the reciprocal rights and duties arising under them, so far as they are contenanced by law, are protected and enforced by the courts, as in the case of voluntary benefit associations, to which they bear a close resemblance.” Endlich, Building Ass., Sec. 517.

If the conclusion be reached that the contract was not so essentially that of partnership, as to relieve it from the taiht of usury, the rules, principles and policy of the law must be applied in determining the legality of any article and not special statutes, for there were none at the time regulating building associations. The provisions of the law relative to notes being: the owner of any promissory note shall have the right to collect the whole amount, notwithstanding it may include a greater rate of interest than eight per cent, per annum, its principles are not only not violated, but complied with, in capitalizing the premium with the amount of the loan.

In recognizing the effect of the article upon the contract there is nothing of harshness, for the demand of the premium is not extravagant, in view especially of the delays that have elapsed.

There was no oppression, or advantage taken of necessities.

. When the suit was instituted more than four years had elapsed from the date of the loan.

There was from the first an element of uncertainty in the contract, excluding questions of an exclusive loan and usury.

“ When the promise to pay a sum of money above legal interest depends upon a contingency, and not upon the happening of a certain event, the loan is not usurious.” Spain vs. Hamilton, Admr., 1 Wall. 604; Tyler on Usury, p. 98; Lloyd vs. Scott, 4 Pet. 205.

In the case of the succession of Latchford, 42 An. 537, we maintained the validity of the premium. As in the case at bar there was consideration, other than the mere loan of money.

Entertaining these views it follows that interest is due on the note declared upon from its date.

The prohibition of the statute of 1860 relates only to interest after maturity.

Interest is due at the rate of eight (8) per cent, on the amounts of premiums of insurance and taxes paid. This rate of interest is especially provided for in the by-laws of the plaintiff association.

It is therefore ordered and decreed that the judgment appealed from be amended and increased, and that plaintiff have judgment against defendant for the sum of five thousand and two hundred dollars, with six per cent, interest thereon from the 26th day of August, 1887, until paid, subject to a credit of one thousand five hundred and seventy-one and 96-100 dollars ($1571.96), from March 29, 1892, and subject to a further credit of one hundred and forty-four dollars; that the interest on the amount of taxes and insurance of defendant paid by plaintiff shall be eight per cent per annum from the date of the respective payments, and the fee of attorney is five per cent, upon the principal of the note due by defendant.

As thus amended the judgment is affirmed at appellee’s costs.

Rehearing refused.


text:
    No. 11,393.
    L. F. Fernandez vs. City of New Orleans et al.
    Plaintiff, holder o£ evidences o£ indebtedness sues for judgment against the defendant.
    There are no funds in the treasury for the years the debts are due.
    The ordinance under which the defendant became indebted provides, that the claims shall be warrantable and payable whenever there shall be money in'the treasury to the credit of the apppropriate funds.
    It is the law of the contract binding the original claimants and their transferee.
    The creditor has a right to a warrant on the treasurer, payable out of the appropriate fund.
    Prescription. That plea docs not attach to a right for which judgment can not be obtained.
    There is a suspension of prescription on those rights for which plaintiff has no cause of action.
    The principle contra non valcntem applies.
    APPEAL from the Civil District Court, Parish of Orleans. Ellis, J.

      Charles Louque Attorney for Plaintiff and Appellant.

      E. A. O’Sullivan, Oity Attorney, for Appellee.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sued to recover six thousand four hundred and twenty and 14-100 dollars from the defendant, withlegal interest from judicial demand.

The court a qua entered a decree recognizing the plaintiff as the owner of the claims held by him.

The defendant does not ask for a reversal of the judgment, but prays that it be affirmed.

There is therefore no issue before us in so far as relates to the recognition of the plaintiff, as owner, by transfer from the original claimants of claims, against the city of New Orleans for the years 1881, 1882, 1884 and 1886.

In all other respects plaintiff’s demand was dismissed as in case of non-suit, without prejudice to the city’s rights to plead prescription against the claims or to urge any other defence hereafter, except that of want of ownership or title to the claims sued on.

The record discloses that there are no funds in the treasury for the years before stated, upon which warrants can be drawn in satisfaction of plaintiff’s claim.

The ordinances under which these claims became an indebtedness of the defendant contains the condition that they shall be warrantable and payable whenever there should be any money in the city treasury to the credit of the appropriate fund.

It is the law of the contract binding the original claimants and. their transferee.

The equities between the debtor and the present holder are not. closed for the reason that the claims are not negotiable and the-transferee has only such rights as the original claimants had.

In Neugass vs. City of New Orleans, 42 An. 169, this court held! “ all that the creditor could claim would be a warrant on the treasurer, to be paid out of the appropriated fund in the city coffers, in thei order stated in the ordinance.”

An absolute judgment against the city for the amounts was never-contemplated.

The relief sought can not be granted. The law in the cited case applies to the case at bar.

With reference to interest, it has been repeatedly decided that claims against the city of New Orleans do not bear interest until there is money in the treasury and the city refuses to pay.

Fernandez vs. City of New Orleans, 42 An. 1, with reference to the prescription pleaded:

These claims are not subject to prescription that the judgment applied for can interrupt.

The payment being suspended and made conditional to there being funds iu the treasury, the plea is ineffective until a right of action arises.

Th6 questions decided in this case were considered at some length in the case of Johnson vs. City, decided this day. 46 An. 714.

The case at bar being similar the same judgment must be pro - nounced. See also Wadsworth vs. City, 46 An. 545.

In so far as relates to prescription the judgment appealed from is amended.

It is ordered, adjudged and decreed that the judgment appealed from be amended by rejecting the plea of prescription, and in all other respects it is affirmed at appellee’s costs.

Rehearing refused.


author: Miller, J.

text:
    No. 11,359.
    Mary H. Calvert, Tutrix, vs. Nettie B. Boullemet.
    The legacies to minors, to be held and administered for their benefit by the executrix of the deceased, and not paid to them until their majority or emancipation, is valid. Succession of Macias, 31 An. 127; Strauss Succession, 38 An. 59.
    Such a disposition imposes the trust on the executrix to hold "and administer the legacies as directed by the will, and that trust continues, notwithstanding the discharge of the executor granted on her petition.
    'This trust continuing, there is no basis for this court to direct the payment of the legacies to the dative tutrix of the minors.
    APPEAL from the Civil District Court, Parish of Orleans. Bightor, J.

      A. G. Brice and Frank E. Bainold Attorneys for Plaintiff and Appellee :

      An executrix who is directed to retain in her hands and administer a legacy left to a minor is a “ quasi tutrix.” 45 An. 962, Succession of Stephens.
    If such an executrix has herself discharged from her office and takes, possession of the entire estate of the decedent as universal legatee, the dative tutrix can claim the amount of the legacy from her.
    When a person appointed tutor by last will and testament refuses to accept the office, the property and rights of the minor are entrusted to a dative tutor. Quoad the minor’s legacy, the executrix was a tutrix by will to the minor. Having ceased to be an officer of the court, she can no longer retain in her hands the estate of the minor.
    Whether the codicil of the decedent made the minor the absolute owner of the sum bequeathed to her, or merely the usufructuary thereof, her tutrix can recover the amount of the legacy from the universal legatee. 34 An, 709.

      J. Zach. Spearing Attorney for Defendant and Appellant:
    In construing a testament, the intention of the testator must be sought; a disposition must be understood in a sense in which it can have a reasonable effect, rather than in that in which it can have no effect, or an unreasonable one; recourse must be had to all the circumstances which may aid in the discovery of the true intention. R. O. C. 1712, 1713, 1715.
    The language of the testator and the circumstances of this case, show that the testator intended the legacies under consideration to be retained by his widow, who was also his universal legatee and executrix, until the legatee, become of age or were emancipated.
    A legacy to minors on condition that it shall not be due or payable until the legatees become of age or are emancipated is legal, and the condition will be enforced by the courts of this State. Succession Macias, 81 An. 127, 128; Succession Turnell, 32 An. 1220; Succession Strauss, 38 An. 57, 58; Pinkston vs. Morse & Zunts, 28 An. 890.
   The opinion of the court was delivered by

Miller, J.

The plaintiff, the tutrix of the minor Annie Gertrude Calvert, seeks to recover from defendant, the universal legatee of Sumter C. Boullemet, the amount of the special legacy to the minor contained in the will of the deceased. The will originally gave to the minor, without condition or qualification, the amount of the legacy, and on the same terms contained legacies to two minors, the nephews of the deceased. By a codicil the testator directed that these legacies to the minors should not be paid till their majority or emancipation, and in the event of the death, before or after that of the testator, of one or two of the legatees, the legacies to them should accrue to the survivor. The codicil further directed the legacies were to be administered by the executrix for the benefit of the minors, until their majority or emancipation. The executrix was the wife as well as the universal legatee of the deceased. She qualified as executrix, caused an inventory to be taken, filed an account exhibiting disbursements, embracing payments of all legacies except those to the minors; these last the account stating not being payable till the majority or emancipation of the minors.

The account was homologated, the universal legatee put in possession and discharged as testamentary executrix. Thereafter, this suit was brought by the tutrix of the minor, Annie Gertrude Oalvert, for the payment of the legacy to the minor. The plaintiff substantially contends that by the discharge of the executrix, procured by her, she ceased to be an officer of the court, or, if deemed a quasi tutrix, she vacated her office, and can not retain the legacy which the will directs she shall hold and administer as executrix

Dispositions similar to that contained in this will with reference to the retention and administration, during minority, of legacies to minors have been upheld by this court. 31 An. 131, the Macias case; the Strauss case, 38 An. 59. We do not understand that these decisions are called in question. It is the discharge of the executrix which is conceived by plaintiff to afford the basis for her demand. Viewed as a valid disposition, the part of this will under consideration imposed a trust or duty upon the executrix, to be performed for the benefit of these minors. Qualifying under the will was acceptance of that trust, and bound the executrix to its performance. Civil Code, Art. 1658. Under the change In our law by statute, executors, It is enacted, shall continue in office until the succession is finally wound up. Civil Code, Art. 1673, adopting the statute; Revised Statutes, Sec. 8. See also 5 An. 645.

In our opinion the executrix was not relieved, by her discharge, from the trust of holding and administering this legacy for the benefit of the minor, as directed by the will. Nor is it appreciated that the executrix had any purpose to escape from her duty, in this respect, in applying for her discharge as executrix. We hold that quoad ihese minors and the legacies in their favor, the trust and duty imposed on the executrix was unaffected by the discharge granted on her application. In this view, the executrix being still subject to this trust and bound to execute it, there is no basis for plaintiff’s demand, which rests on the' theory that her discharge, as executrix, rendered her incompetent to hold and administer the legacy as directed by the will. The decisions in the Macias and Strauss cases give recognition to quasi tutorships for the execution of dispositions like that under consideration in favor of minors. In this case we think the executorship of defendant continues in respect to the legacies to the minors.

The court reaches its conclusion the more readily, in view of the great solicitude exhibited by the testator on this point, i. e., that no payment of these legacies should be made until the majority or emancipation of the minors, and until then should be held and administered by his executrix. This non-payment until majority or emancipation, and this control and administration by his executrix, who was also his wife and universal legatee, was the dominant idea in the testator’s mind. To effect that purpose the testator added the codicil. In the codicil, in the most explicit terms, he declares and repeats that no payment of the legacies is to be made until the maj ority or eman - cipation of the minors. He makes it more emphatic in changed language, it beiug my wish and intention that no portion of these legacies shall be due and payable to the legatees” until they are of age or duly emancipated. His closing expression is that his executrix, previously directed to hold the legacies, shall administer the legacies for the benefit of the minors until their majority or emancipation. The cardinal rule in giving effect to last wills, is to adhere to the intention of the testator. The substantial execution of that intention we think secured by this decision. To order the payment of these legacies to the dative tutrix, an official not within the contemplation of the testator, and that too when the legatees are still minors not emancipated, would, in our opinion, be to defeat and not execute the intention of the testator.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and that the plaintiff’s petition be dismissed at her costs.

Rehearing refused.


author: McEnery, J. Nicholls, O. J.

text:
    No. 11,480.
    S. W. Rawlins vs. D. M. Giddens et al.
    Where, under the advice of a family meeting, duly held and homologated, certain immovable property of the minor, alleged to belong to him by the tutor, is exchanged for other property of the same kind, the judgment of the court author - • izing and approving the exchange is conclusive between the tutor and the minor. The property exchanged for the minor’s property becomes their property irrevocably as against the tutor and those claiming through or by him, and including creditors whose claims originated after the judgment.
    In a settlement with the minor, personal property which has become old and worn out, and with the proceeds of the sale of the property it is replaced by other property, the latter belongs to the minor.
    When the tutor inflates his credits and pays no money to the minor, and on the settlement turns over property only which belongs to the minor, the creditor of the tutor, for the debt due by the tutor to the minor, has no right to subjec.t the minor’s property thus turned over to the satisfaction of his debt. The creditor, therefore, has no interest in insisting upon an exact statement of the tutor’s accounts in such a case.
    When the tutor has had the use of the minor’s plantation for along period of years, and pays no rent, but charges himself with it, the property, upon which the minor has a lessor’s privilege, will be subjected to the payment of said rent.
    On Application por Rehearing.
    1. The separate creditor of either spouse has the right, after the dissolution of the community, to have the community liquidated, and to subject according to law to the satisfaction of his claim the interest of his debtor thus ascertained.
    2. The separate creditor of the husband can not, after the community has terminated by the death of the wife and the rights of the parties have become fixed by that fact, deal with an undivided interest in any specific piece of property, if it belonged to the community,*as if the husband had the absolute ownership of one undivided half thereof. He has not the right to seize directly an undivided interest in a specific piece of property, sell it, and apply the proceeds of the sale to the payment of his debt.
    APPEAL from the Ninth Judicial District Oourt, Parish of Red River. Hall, J.

      J. F. Pierson Attorney for Defendants and Appellants:
    The creditor can not be injured by a transfer or sale from one of his debtors in solido to another debtor in solido, for the same debt; and in no case can the creditor maintain the revocatory action to annul a sale, unless he be actually injured thereby. Seixas vs. Citizens Bank, 38 An. 429.
    Where plaintiff in the revocatory action sues to set aside an account and settlement by a tutor with his wards at the -termination of the tutorship, as a sale transfer and giving in payment by the tutor to his wards, and the wards in answer to such suit disclaim the account and settlement with them, as any title to them to the property mentioned, and disclaim any intention to acquire or hold the property under such alleged sale transfer, or giving in payment, but in reconvention set up their title by inheritance from an entirely different source, and upon which the case goes to trial, such an issue presents no feature of the revocatory action or action of simulation, and becomes an action petitory in its nature and character, involving only the ownership of such property under such adverse title so set up by the wards. 39 An. 635.
    In such ease the burden is upon the ward to establish ownership under such adverse title, and his disclaimer under the act sought to be revoked or annulled debars him from any claim to the property, as against the suing creditor, under the act assailed; hence, no grounds remain in the case for the revocatory action or action of simulation.
    The creditor has the legal right and capacity to stand in judgment as against third persons for property claimed by him to belong to his debtor. Spencer vs. Goodman, 38 An. 898.
    In a suit to make out title to his debtor, the rights and privileges of the creditor are precisely those of the debtor himself. Nouvet vs. Vitry, 15 An. 653.
    In cases tried by a jury the court must render judgment pursuant to the verdict of the jury. O. P. 541; 4 An. 6; 6 An. 727; 17 An. 167; 33 An. 583.
    The court can grant no relief, nor can it insert in the judgment any clause not authorized by the verdict, nor can the court condemn the defendant in the revocatory action when the verdict does not authorize such judgment, and when the case was not tried upon such issue. O. O. 1977; 33 An. 1086; 34 An. 1214.
    A final judgment of the probate court, decreeing the property in the hands of the tutor to belong to the minors in his charge, is a judgment settling the status of such property in his hands, and as such is conclusive against the tutor, and all others subsequently claiming under or through the tutor. 26 An. 112.
    Such judgment is the highest evidence of the fact that the property belongs to such minors, and can not be impeached. Grevanburg vs. Bradford, 44 An. 422.

      No other evidence can afford strength to the presumption of truth it creates, and no argument can detract from its legal efficacy. Campbell, J;, Jester vs. Hewitt, 22 How. 364-376.
    A member of a family, and all claiming under him, are estopped from claiming land recognized in the proceedings as belonging to the minor. 11 An. 502; 6 An. 722; 40 An. 189.
    Successors, or ay ant cause of parties to the original suit, are considered as parties themselves when their titles have been acquired since — aliter, if before. 3 An. 320; 12 An. 873; 4 Rob. 23; 7 An. 445; 9 An. 150.
    A father can make a purchase in his minor child’s name, but not to the detriment of existing creditors. Subsequent creditors can not contest the purchase. Hopkins vs. Buck, 5 An. 487; 5 N. S. 634; 5 L. 126; 2 An. 959.
    Where a party has recognized the title of another to property and has thus estopped himself from questioning the validity of such title, a party holding under him the same property, as vendee, must be held to a recognition of that title and must show that he has acquired the same or fail in maintaining his right to it. Giranlt vs. Zunts, 15 An. 685; 34 An. 634.

      J. C. Egan Attorney for Plaintiff and Appellee.
    Same Counsel and J. D. Wilkinson for a Rehearing:
    The opinion of the court rendered herein maintaining the plea of res adjudicata was in error as to the true facts of the case. To form the basis for such plea there must be a cause of action submitted to the court for its consideration; this cause of action must be pertinent to the issue, and must be the identical question before the court by parties acting in the same capacity. Collens vs. Jumel, 30 An. 861; West vs. Creditors, 3 An. 529; Cook vs. Doremus, 10 An. 679. In other words the decision must settle some question in dispute between the parties acting in the same capacity. Such is not the facts in this case.
    In the judgment pleaded as res judicata the question of the proportion of the property owned by D. M. Giddens and the proportion owned by the minors was not submitted to the court, and it did not pass and could not pass on such question, for no such issue was raised, nor did D. M. Giddens act in his individual capacity, but as tutor.
    Again, the judgment of the probate court did not decree the minors the owners of the whole property received in exchange, nor did it decree in what proportions they held and owned said property.
    This act of exchange admittedly includes property belonging to D. M. Giddens, and the act declares that said Sprowls place is transferred to D. M. Giddens in his “ own right and as tutor." “ In his own right ” certainly means that part of the property received belonged to. D. M. Giddens, and an investigation of the source of title shows that D. M. Giddens is or was the owner of one-half of the property given in exchange.
    Now this act of exchange as made was homologated by the judgment pleaded in bar — a judgment that was rendered more than two years after the exchange was made, and which purported to place a judicial sanction on a title as it then stood and no more. The judgment is as follows:
    “In the matter of the tutorship of the minors of D. M, Giddens. Petition for homologation, etc. No. 68. In Red River parish, La. Probate docket.
    “ In this cause by reason of the law and the evidence it is ordered, adjudged and decreed that the proceedings and deliberations of the family meeting as convoked and holden on the ninth day of December, 1875, in the matter of the minors of D. M. Giddens, before W. P. Peck, recorder and ex-officio notary public in and for said parish and State, and in which it is advised and recommended that it ‘ is to the evident interest and advantage of said minors that said exchange be made upon the terms that one place — the Sprowls place, to-wit — be given in exchange for the other — the Armistead place, to-wit — on the condition that the mortgage and debt now held by Mrs. B. W. Lisso be assumed by Mr. J. H. Beaird, the party proposing the exchange, and the said father and tutor released therefrom, said minors to hold and reserve any and all legal liens and rights they may have had in the Giddens-Armistead place, the same on the Sprowls place, be homologated and confirmed, and made the final judgment of the court upon the ground and for the reason that said exchange was a legal and valid contract and was advantageous to the minors.’ It is further ordered, adjudged and decreed that the contract of exchange as executed and carried into effect, and bearing date December 20, 1875, and same being notarial in form, be homologated and confirmed, and declared to be binding, of full force and effect against and between said minors and J. H. Beaird, and valid as a final and mutual title to each as to the places respectively conveyed.”
    * * sf; * * *
    It will be seen that this judgment declares “ said minors to hold and reserve any and all legal liens and rights in the Giddens-Armistead place, the same on the Sprowls place.”

    What right did they have in the Giddens-Sprowls place? The judgment does not declare, and in order to ascertain this fact recourse must be had to the source of title to this property. If D. M. Giddens had no ownership of any part of the property received in exchange, why does the judgment declare that the minors’ legal liens should be as operative on the one as on the other? If he was not the owner of any part of the property received, on what was the minors’ legal lien to operate? The minors could not have a legal lien on their own property, and some part of it must have belonged to D. M. Giddens.
    The judgment can not be construed by itself in determining this plea. It was a judgment homologating a written title of two years’ standing and the deed homologated becomes and forms part of the judgment rendered.
    The act. of exchange transfers the property to D. M. Giddens in his own right and as tutor, and the judgment of the probate court gives judicial sanction to the transfer of the minor’s interest. The question of the transfer of D. M. Giddens’ interest was not before the court, and no judgment was needed to authorize its transfer.
    Construeing the judgment and the act of exchange together, the judgment only gives the minors an interest in common with D. M. Giddens in the property received. It created no new rights; it did not purport to destroy the title of Giddens and vest the same in the minors. It homologated the act of exchange as it then stood, which places the property in D. M. Giddens in his own right and as tutor.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff instituted this suit against defendant D. M. Giddens for the sum of one thousand seven hundred and eight and 68-100 dollars, evidenced by a promissory note, dated May 14, 1892.

In the suit he made also defendants the two sons of plaintiff, Robert A. and Albe'rt S. Giddens.

“Petitioner further alleges that said Albert Giddens, Robert Giddens and their father, D. M. Giddens have entered into a pretended settlement and transfer of property on the 28th of December, 1892, and filed of record that day in the clerk’s office. Petitioner alleges that said pretended transfer and settlement and giving in payment is a fraudulent simulati.n, and that D. M. Giddens was not indebted to them in any sum after accounting for the improvements on said property, and for their raising, education and support. Petitioner alleges that all the property pretended to be transferred by above conveyance is neither the original property left by the succession of the mother of Albert S. and Robert A. Giddens, nor is it the product or increase of said succession property. Petitioner further alleges that if said D. M. Giddens was due them anything, that they had no mortgage or privilege on any of his property, nor was there any mortgage or privilege on any of the personal property described in the act of conveyance, and the transfer of the property for an indebtedness, if any existed, was null and void, because said Giddens was insolvent, and the said parties knew of his insolvency. Plaintiff alleges injury by this settlement and insolvency of the father, D. M. Giddens, and the same be avoided and annulled.”

For participating in these alleged illegal acts and assisting their father in illegally disposing of his cotton, judgment is prayed for in solido against all the defendants. All the property embraced in the settlement is asked to be made subject to plain iff’s debt.

The defendant’s two sons deny that they held said property by virtue of said settlement but by inheritance from their mother.

The case was tried by a jury, who returned a verdict for plaintiff against D. M. Giddens for full amount claimed on account, of five hundred and eighty dollars, and they also in the verdict declared D. M. Giddens to be the owner of one-third interest in the Sprowl place, and that said one-third interest should be subjected to the payment of plaintiff’s demand. A judgment was rendered on this verdict which departed in some respects from it. Defendants complain of this, but it will be unnecessary to comment on it, for the reason that the judgment rendered will be amended, dismissing the demand of plaintiff against defendant's sons, and releasing the property subjected to the payment of the judgment rendered.

The sons, R. A. and A. S. Giddens, appealed from the judgment.

The record is very large and encumbered with m-ch useless matter. There was no necessity of introducing any evidence of title in the mi ors prior to the judgment hereinafter noticed which fixed the status of the property as theirs — i. e., the lands of their tutor, their father.

The mother of the two defendants, R. A. and A. S. Giddens, died. Her succession effects were inventoried and the father qualified as tutor. During the tutorship, seventeen years before the execution of the note sued on, in the interest of the minors, it became necessary to exchange the immovable property, which the tutor considered as their property, for certain other immovable property. A family meeting was convened, the proceedings regularly conducted, and a decree was rendered homologating the proceedings and approving of the exchange.

The decree concludes as follows: “ It is further ordered, adjudged and decreed that the contract of exchange, as executed and < arried into effect, and bearing date December 25, 1875, and same being notarial in form, be homologated and confirmed and declared to be binding and of full force and effect against and between said minors and J. H. Beaird, and valid as a mutual and final title to each as to the places respectively conveyed, and that the costs be taxed against D. M. Giddens, tutor, at whose instance this family meeting was convened. Done, read and signed in open court, on this 21st April, 1877.

“ A. Ben. Broughton, Parish Judge.”

This judgement is final, conclusive and irrevocable between the tutor and the minors. All the property received in exchange was the property of the minors. It is too late to inquire whether some of the property given in exchange belonged to the tutor. It passed from him, so far as creditors of the judgment debtor are concerned, whose debts originated after the decree. 44 An. 422.

A portion of the immovable property embraced within this decree, it is claimed by plaintiffs, was owned at the time by D. M. Giddens, the tutor. ' But this is questioned, and the testimony of the tutor is that he took the title in his own name, but received the money to pay the price on account of the minors, from their grandmother.

One of the minors became of age and the other was emancipated during the tutorship. They had a right to demand an account from their tutor, and the delivery to them of property held for them.

The fact of the insolvency of the tutor is no evidence by itself that they colluded with him. The fact of insolvency alone would, or ought to, induce action on their part to protect their rights. That one of the minors was uneasy as to his rights some time before the final settlement, 28th December, 1892, is a fact established by the testimony.

Both, however, concluded to let their father manage the property for a while, in order to satisfactorily meet his obligations. He was unable to do so, and the settlement of 28th December, 1892, was the result. The evidence fails to establish any collusion between the tutor and the minors who had become of age to defraud the creditors of the tutor, or that they had been employed by him in diverting cotton from its proper destination to the furnisher of supplies.

D. M. Giddens’ testimony as to the amount of cattle, hogs, horses, mules, etc., delivered to the minors is unaffected by plaintiff’s evidence. They are in excess in some items of the amount in the inventory of the mother’s succession. But D. M. Giddens shows that this excess was from natural increase, from selling old and purchasing fresh stock. In other words, the whole increase was produced from the minors’ property administered by him. They are entitled to it. 31 An. 359; 42 An. 162.

Some of the items in the settlement are of articles returned in kind, and others of articles returned in kind for like articles consumed by the tutor.

In the settlement between the tutor and his wards there are alleged overcharges for rent, for the support and education of the minors, and a failure to charge for- improvements placed on the minors’ property. The plaintiff for these reasons charges that the tutor was not indebted to them. It may be true that the minors had no money demand against him in consequence of the statement of the account, but this is a matter between the tutor and the minors, who had attained the age of majority and were capable of remitting the credits not mentioned in the account, and of accepting the overcharges for rent and. support. But as the tutor only turned over to them the property of which they were the owners, the plaintiff was in no way injured by the settlement and has no cause to complain.

The tutor can not so manage and administer the tutorship as to bring the minors in debt to him, and so burden their property as to divest title in them and vest it in h.imself.

In the settlement made with his wards the tutor delivered to them property to which they were entitled and of which they were the owners.

He charges himself with rent for the entire period of the tutorship, but the settlement does not show, that any rent was paid to the minors.

On the account or settlement there are two jennets and one colt, one mower and rake, and one lot cotton seed, valued at three hundred and seventy-five dollars.

It is admitted that the minors had no title to this property.

The tutor owed for rent. It was not offset by improvements sufficient to pay the same. They had a privilege on this property for the payment of the rent. They could have seized and sold it.

The plaintiff was not, therefore, injured by the delivery to the minors of property which was subject to their lessor’s privilege, and from which there could be no surplus to pay any part of plaintiff’s debt.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to reverse that part of it which affects the title of the defendants, A. S. and Robert A. Giddens, to any of the property comprised in the settlement made with their tutor, D. M. Giddens, on 28th December, 1892, and which annuls and sets aside said settlement, and that part of the decree which invests ownership in D. M. Giddens of one-third interest in the Sprowl plantation, and the said A. S. and Robert A. Giddens are declared to be the lawful owners of all said property comprised and embraced in said settlement, and plaintiff’s demand against them be rejected. In other respects judgment affirmed, plaintiff to pay costs of appeal.

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

On Application for a Rehearing.

Nicholls, O. J.

The community between D. M. Giddens and his wife, Mary J. Armi-tead, has never been finally settled and liquidated, and the rights of the spouses fixed and determined. The separate creditor of either spouse has the right after the dissolution of the community to have the community liquidated and to subject according to law, to the satisfaction of his claim, the interest of his debtor thus ascertained. The plaintiff does not pretend to be a creditor of the community. If he be a creditor of Giddens it is for a claim which originated after the community had terminated, and the rights of parties had become fixed by the death of the wife. Even if the title to the property or part of the property involved in this litigation, fell into the community by reason of the time at which it was purchased, this creditor can not deal with an undivided one-half interest in any specific piece of property, as if the husband had the absolute ownership of one undivided one-half interest therein, proceed against it by direct seizure, sell it and apply the proceeds of the sale to the payment of his debt.

He has a remedy, but the remedy is not by direct seizure of an un - divided interest in a specific piece of property. We think the interest of justice will be best subserved by setting aside the judgment heretofore rendered by us in this case, and said judgment is accordingly set aside, and it is now ordered, adjudged and dereed, the law and the evidence supporting this judgment and decree, that so much of the verdict of the jury in this case as “finds that D. M. Giddens owns one-third interest in the Sprowl place, excluding all movable property, and subjects said one-third interest to the payment of this judgment,” and so muth of the judgment of the District Oourt (based on that portion of the verdict) which decrees “that D. M. Giddens is one-third owner on the Sprowl plantation, and that the same be subject to the payment of plaintiff’s claim, interests and costs,” be and the same is hereby annulled, avoided and reversed. It is further ordered, adjudged and decreed that the portion of the judgment appealed from which decrees “ that the transfer and settlement from D. M. Giddens to Albert A. and Robert S. Giddens, of date December 28, 1892, be avoided, annulled and set aside in so far as plaintiff’s claim is affected by same ” be and the same is hereby annulled, avoided and reversed and the case is remanded to the District Oourt for further proceedings according to law, the right of plaintiff being expressly reserved by proper proceedings to force a final settlement and liquidation of the community between D. M. Giddens and his deceased wife, Mary J. Armistead, and to subject to satisfaction, according to law, for his judgment, the interest of his debtor thus ascertained.

Rehearing refused.

Watkins, J. recused.