author: Howeix, J. Howell, J.

text:
    No. 3265.
    Succession of James N. Brown, deceased.
    The sale of succession property by tlie testamentary executor, to pay particular legacies, debts, costs, charges of administering, etc., is not inconsistent -with the prosecution of a suit for a partition of the succession among the heirs. In the former case the executor has the right to cause the property to he sold to pay the particular legacies, etc., while in the latter the heirs have the right to the action of partition among themselves. Both proceedings may, therefore, he carried on at the same time, without the one being regarded as Us pendens with reference to tho other.
    Appeal from the Parish Court of Iberville.

      Adonis Petit, Parish Judge. Samuel Matheios, for plaintiffs and appellees.

      Barrow & Pope and William B. Bohertson, for defendants and appellants.
   Howeix, J.

Mrs. Eeltus, one of the heirs of James N. Brown, who died in 1859, brought suit in November, 1869, against her coheirs for a partition of all the xiroperty of the succession, situated in several parishes, and asked that a sale thereof he made to effect the same. To this the defendants and coheirs excepted that a suit for a partition can not he entertained while the estate is under administration by the dative testamentary executor.

In October, 1870, and before the above exception was filed, the dative executor presented an account of his administration and a prayer for its homologation and the sale of a plantation and movables in Iberville to pay a special legacy of $50,000 to one of the heirs, and certain expenses, lawyers’ fees, commissions, etc., amounting to about $20,000. To the account, Mrs. Eeltus filed oppositions, and to the prayer for the sale of said plantation and movables thereon she pleaded the exception of lis pendens, and alleged that this proceeding of the executor is illegal, and if sustained will render several partitions necessary, which can be closed and settled by one. The plea of lis pendens was maintained, and the dative testamentary executor appealed.

The judge, in our opinion, erred. The two suits or proceedings aro not between the same parties. The executor is not a party to the suit for a partition; and besides he has the legal right to apply for the sale of property to pay particular legacies and debts, and the heirs can only arrest the sale for such purpose by advancing the money necessary to make the payments and complying with article 1012, or, perhaps, by showing that the payments should not be made. C. C. 16G8, 1670, 1671. The objections urged by Mrs. Eeltus are, therefore, not sufficient to arrest the sale asked for by the dative executor, whose duty it is to carry out the provisions and directions of the will, and settle the estate.

It is therefore ordered that the judgment appealed from be reversed, and that an order issue for the sale of the property as prayed for by the dative testamentary executor. Costs of this proceeding, in both courts, to be paid by appellee.

On Application por Rehearing

Howell, J.

Mrs. Eeltus asks for a rehearing upon the ground that the' court erred in deciding the merits, when only the exception of lis pendens was presented, there being no answer in the case. The question was, did the court a qua err in refusing to grant the order of sale asked for by the dative executor, and we regarded the pleas and objections urged against the granting of it simply as an opposition to the application, and, according to the rules of practice, it was the duty of the party making the opposition to present all the grounds thereof at once, and not to protract litigation by setting up grounds of defense seriatim.

The issue in this case was made up by the opposition (styled exception) to the prayer for a sale. The oppositions to the account appear not to have been tried.

Rehearing refused.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 2257.
    G. De Feriet v. Bank of America.
    la this case, the evidence shows that plaintiff kept a hank account with defendant; that the book-keeper of plaintiff kept the cash account, made the deposits, etc., and that his rela•tion toward plaintiff were well understood in the bank; that the book-keeper of plaintiff •drew a check on the bank for $2500, to which he forged plaintiff’s signature, which was nn amount above the account to the credit of plaintiff in the bank; that notice was given by the bank that plaintiff had overdrawn his account, who, on being shown the check for •$2500, said he had not signed it, but did not say that it was a forgery. On seeing his bookkeeper, he reported back to the bank that it was all right. Subsequently the book-keeper drew another check on the bank for $1700, and again forged the signature of the plaintiff thereto, which the bank paid on presentation. On discovering the second forgery by the hook-keeper, six months after the first, plaintiff denounced the act.
    Held — That the act of the plaintiff, in ratifying the first act of forgery made by his bookkeeper, exonerated the bank from all liability for having paid it; that his afterward keeping the book-keeper in his confidential employ misled the hank and threw it off its guard; that, having approved and ratified the first forgqry, the hank was excused for paying subsequent checks similarly drawn; that the plaintiff had by his own acts caused the injury, and he must therefore hear the loss.
    Appeal from the Eourth Bistrict Court, parish of Orleans.

      TJiéarcl, J. A. Robert, for plaintiff and appellee.

      Johnson & Dennis, for defendant and appellant.
   Howell, J.

Plaintiff claims $2425 41 as the balance due him on deposit. The defendant denies any indebtedness, aud avers that plaintiff has overdrawn his account to the amount of $1774 59, as shown by his checks, which sum is claimed in reconvention. To this demand plaintiff answers, denying the genuineness of his signature to two of •said checks, one for $2500, dated and paid on the thirty-first December, 1807, and one for $1700, dated fourth and paid sixth January, 1868.

There is no contest before us as to the forgery of those two checks; but defendant and appellant contends that plaintiff, by his conduct in the premises, has justified the bank in receiving and paying them as genuine, and therefore is liable for the amount so overdrawn. When the first of these checks was paid, an overdraft was discovered and, immediately reported to plaintiff, who expressed great surprise, and stated that he had drawn no check on that day. Upon going to the bank to investigate the matter, he was told that it was all right, the check had been made good by a deposit. The check was handed to him, and after being carefully examined by him was returned without any remark, as the bank clerk testifies, but he says he stated it had not been signed by him. On Ms way back to his office he met Ms book-keeper, who had the sole charge of his bank account and cash, told Mm of the discovery he had made that the latter (the bookkeeper) had counterfeited his signature to the check for $2500, and asked him if that was the only loss he would sustain, and on being assured it was, he determined to bear it, and not expose the matter, and continued the book-keeper in Ms employment as before, until about the .sixth or seventh of January following, when he discovered and denounced the forgery of the check for $1700. The signature to ■each was in the handwriting of the book-keeper, who, to provide for them, deposited to plaintiff’s credit certain checks drawn to the order of plaintiff by a young clerk of the latter, on other banks, and indorsed thus: “For deposit, Gr. De Feriet, per E. Davenport,” the bookkeeper. The first of these deposits, made of thirty-first of December, 18G7, was realized, and produced a surplus, which was drawn on by ■several genuine checks of the plaintiff. The check forming the second deposit was returned dishonored, thus nroducing the overdraft claimed in reconvention.

Under these circumstances, it is clear that the plaintiff can not be heard to disavow the cheek for $2500. The case of Etting v. Commercial Bank, 7 R. 459, rests on very different facts. So far as was in his power, he condoned this offense cf his book-keeper, and made the ■transaction his own. He could but have known that the deposit made to cover this overdraft was not made with his funds, and that consequently the payment of said check resulted in no injury or loss to him, but that really his balance was increased by the said deposit, out of which his subsequent checks were paid. The only point upon which any doubt can be raised is whether he is liable for the overdraft resulting from the payment of the second forged check.

In the case of Duconge v. Forgay, it was held that an authorization to indorse other promissory notes can not be inferred from the fact that the party whose name was forged on them did not publicly denounce the forgery which first came to his knowledge, nor will the neglect to ■denounce the crime to the public authorities make such party responsible for other forgeries of his name, then unknown to him, or give rise rto an action for damages under articles 2294 and 2295, C. C. But here "the plaintiff is sought to be made liable, not simply for his failure to denounce the forgery to the public authorities when brought to his knowledge, but because by his words' and acts he threw the bank off ■of its guard and enabled the guilty person to repeat the fraud upon the ¡same party. In the case of Forgay, the forger was a friendly acquaintance, but not in his employment, and rather than expose his friend, he guaranteed the payment to the holder of the forged indorsement first made known to him; but when sued by another and different party on another forged indorsement, he was relieved from liability, on the principle above stated. In this case, however, the forger was the confidential clerk of plaintiff, had charge of his bank book, made deposits ,-and kept his cash and bank accounts; when plaintiff discovered the first forgery he used ambiguous language to the bank officer, continued ithe forger in the same confidential position, sanctioned the deposit made to meet the forged check, drew upon the surplus remaining after replacing the overdraft, and thus relieved the bank from the charge of imprudence in paying a subsequent check similarly signed. Indeed, a careful examination of the evidence will leave a well founded doubt as-to whether the bank was made aware that the check for $2500 was actually a forgery until after the payment of the one for $1700. The only direct evidence on this point is the statement of plaintiff himself, when called to the stand the second time, that upon returning said, check to the bank clerk he remarked it had not been signed by him, and his first declaration, before going to the bank, that he had drawn no check that day. The officers of the bank may have inferred that, although not signed by the plaintiff himself, he did not consider it a forgery. Be this as it may, we are led to the conclusion that the peculiar facts and circumstances of this case, taken together, must relieve the bank from the stringent rule that the depositary must take care to pay none but the checks or drafts of’ the depositor himself or his-acknowledged special agent, and that this is a proper case to apply the equitable principle that where one of two innocent parties must suffer,, it should be lie who was the cause or occasion of the confidence and consequent injury of the other.

It is therefore ordered that the judgment appealed from be reversed, and that defendant recover of plaintiff the sum of $3774 59, with legal interest from sixth January, 1868, and costs in both courts.

Rehearing refused.


text:
    No. 3194.
    C. Landry, etc., v. M. Landry et als.
    Notes that have "been given by tho different partners in settlement of a partnership, which have fallen into third hands after maturity, can only be enforced against tbe makers thereof to tho extent to which each member bo found to be indebted to the partnership. In such a case the third holders, after maturity, acquired no greater rights to the-notes in their possession than the partnership itself would have had, had they remained in the possession of its agent for final settlement.
    Appeal from the Fifth Judicial District Court, parish of Iberville.

      Posey, J. Talbot i& Petit, for plaintiffs and appellees.

      Wülimi B. JRobertson, for infervenors and appellants.
   Howell, J.

An ordinary partnership for planting purposes was formed in 1852, to continue to the first of January, -1862, under the name of B. A. Landry & Co., not to be dissolved by the death of one or more members, and was composed of B. A. Landry, Caroline Landry, wife of D. Breaux, M. Landry, 0. Landry, S. Landry, widow of J. A. Riviere, and D. Breaux. They held in common, as coproprietors, certain lands, slaves and movables, described and valued in the act of partnership. The proportion of each was fixed, and th.e managing agent, B. A. Landry, appointed therein. In December, 1858, five of the partners (B. A. Landry having died) had a settlement, appeared before a notary, acknowledged severally to be indebted to the firm in certain. sums as advances, made their notes respectively for the amount so-acknowledged by each, payable in all the month of March, 1862, after the date fixed for the expiration of the partnership, and to secure the payment thereof gave each a mortgage on their undivided individual interests in the lands and slaves. These notes were at the time delivered to M. Landry, who had been appointed the agent.

In April, 1867, the plaintiff, a maker of one of the notes, instituted this suit on them for the use and benefit, as alleged, of the firm. Pending the suit, after default but before answers were filed, the notes were seized, in April, 1868, under a garnishment process on an execution in the suit of A. Mire v. B. A. Landry & Co.; were bought at ■ a sheriff’s sale thereunder by the plaintiff in the writ; subsequently sold again at a probate sale and bought by one A. Levert, Jr., who intervened herein in April, 1869, to prosecute the suit to judgment, with recognition of mortgage in his favor as owner and holder of the notes against each maker. Defenses were here made by all the makers or their legal representatives, and also the representatives of the first deceased partner, B. A. Landry, that said notes were intended as mere acknowledgments of sums of money received by the partners, to be accounted for at the final liquidation of the partnership and partition of its assets; that this suit was instituted by C. Landry simply as a precaution to prevent the accruing of prescription, and not to enforce payment except in final settlement; that some of the makers are not indebted to, but creditors of the firm; that those who are debtors have withdrawn from the partnership more than their share, and have no interest subject to mortgage; and that a settlement and partition are necessary. They pray that the intervention of Levert, Jr., be dismissed, that an inventory and sale of the partnership property be made, and the parties referred to a notary for a final partition. To-this demand for a partition the intervenor excepted. Several other suits against some of the partners and against the firm were consolidated with this, and all tried together. Pending the proceedings the property was sold by consent, and on the prayer of the intervenor, Levert, the proceeds held subject to the order of court. Judgment was rendered against the demand of said intervenor on the notes, but. ordering him to be paid with preference the amount of two judgments. held by him against the firm, and referring the other parties to a notary for a final partition. From this judgment A. Levert, Jr., appealed.

Under the circumstances the partners had the right to show how the-notes originated, the object of making them, and that they did not owe the firm. The intervenor and his assignor or author acquired them long after maturity, and all the defenses could be made to them in his hands that could bo in the hands of the payee or firm. lie-acquired no more rights than the partnership had, and it is fully shown that this was a mode adopted for conducting the partnership affairs in this respect, and the notes were held to he used only in a settlement among the partners, and the intervenor really acquired nothing by his purchase. Much of the litigation was useless, and some of it baseless, but we think the district judge has correctly solved the matters before him.

Judgment affirmed.


author: IIowe, J.

text:
    No. 2253.
    Babbitt, Goode & Co. v. The Sun Mutual Insurance Company.
    , The steamboat Mars took on board at Hew Orleans, in 1861, a cargo of sugar consigned to Babbitt, Goode & Co., at Cincinnati, Ohio. The sugar was insured in favor of the consignees in the office of the Sun Mutual Insurance Company of Hew Orleans. "When opposite the town of Helena, on the Mississippi river, the boat was fired at by a cannon shot and brought to the bank; a mob took possession of the boat and cargo of sugar, which became a total loss to the owners. The insurance company resist the p ayment of the policy on the grounds:

      ■¿First — That the owners of the cargo not having made an abandonment and the cargo not having been an immediate total loss, they were not entitled to recover on that account. Held — That so Jar as the owners were concerned, from the moment the sugar was taken possession of by the mob, it became a total loss to them, and no act of abandonment on their part was necessary to entitle them to recover on the policy.
    . Second — That the taking of the sugar at Helena was a capture or detention by the enemies of the United States, and that such capture or detention was not among the perils insured against. Held — That it having been established by the testimony that the persons at Helena who took forcible possession of the sugar were not acting under any legally constituted authority of any State or government whatever, but were acting simply as a mob, the underwriters could not avail themselves of this dofense to escape liability under this state of facts.

      Third — That the underwriters were not liable because the taking of the sugar, under the circumstances, is not included in either the special or general words of the peril clause of the policy. The perils are as follows: “ Of the rivers, fires, rovers, assailing thieves and all other perils and losses and misfortunes that have or shall come to the hurt, detriment or damage of the said* goods and merchandise or any part thereof by reason •of the dangers of the river.” Held — That the taking of the sugar by the mob at Helena was covered by the general terms of the .peril clause in the x>olicy; that while the mob at Helena could not properly be 'classed as assailing thioves, because the evidence did not establish that it was done animo furandi, yet the acts were of such a character that, if not reducible from the special words of the policy, they were clearly included within the general words at the end of the peril clause.
    Appeal from tlie Sixth District Coart, parish of Orleans.

      Oooley, J. Honor <& Benedict, for plaintiffs and appellees.

      J. A. MayMn, Leovy <& Monroe, for defendant and appellant.
   IIowe, J.

Action upon a river policy of insurance on seventy-five hogsheads of sugar, at and from New Orleans to Cincinnati, on steamboat Mars, dated April 19, 1861. The answer admits the execution of the policy, denies that the plaintiffs owned or were interested in the property insured, and denied generally the liability of the defendant. There was judgment for plaintiffs, and defendant appealed.

First — The interest of plaintiffs in the goods covered by the policy is fully established and is not contested in this court.

Second — Tlie liability of defendant is alleged to be for a total loss, under tbe following circumstances: On tbe twenty-fourtb April, 1861, as tbe boat was passing the town of Helena, Arkansas, a mob of citizens fired a cannon across ber bow, compelled ber to land, took possession of ber and ber cargo and kent nossession. The sugar of plaintiffs thus became a total loss.

Tbe defendant contends that there has been no abandonment by plaintiffs, and that an abandonment within a' reasonable time was essential to make the loss total. But we think that whatever may bave been tbe exact nature of tbe seizure or taking of tbe goods by •the mob, its effect was to cause tbe subject matter of the insurance to be totally lost to tbe owners. Twelve days after, tbe State of Arkansas seceded and at once became involved in tbe war of the rebellion. Tbe plaintiffs, residing at Cincinnati, became cut off from all practical communication and lawful relation with both tbe defendant, in New Orleans, and tbe people of Helena, in Arkansas, and tbe sugar soon disappeared, either by theft or tortious conversion. In tbe spring of 1862 communication between Cincinnati and New Orleans became possible by the occupation of tbe latter place by tbe national forces ; but communication between New Orleans and Arkansas was, for thS same reason and at tbe same time, cut off. This suit was began iu February, 1864. An abandonment in tbe usual form would, at all (times, have been an idle ceremony, of no benefit to defendant. Mullett v. Shedden, 13 East. 304; Mellish v. Andrews, 15 East. 13.

But, furtliermorc, the demand for payment as for a total loss made -early in 1864 amounted to an abandonment (Cassidy v. Louisiana Insurance Company, 6 N. S. 422), and for all practical purposes was as useful to defendant as if made tbe moment New Orleans was reoccupied by tbe United States forces.

Third — Tbe next defense urged is that tlie taldng of tbe sugar was a capture or detention by enemies of tbe United States, and that such capture or detention not being a peril insured against, tbe defendant is not liable. We can not assent to this view. Tbe persons in Helena by whom the sugar was seized, “ some of it sold and' some carried to Little Rock,” are proved to bave been citizens of tbe plaee, acting under no pretext of autliority, but simply as a mob. It may be supposed, from tlie record, that they made tbe seizure because tbe vessel and cargo were believed by them to belong to persons in Cincinnati, but tbe reason of tbe outrage does not necessarily determine its character. Tlie motive is One tiling; tbe authority set up another. They neither represented nor claimed to represent any State or government, real or imaginary, actual or pretended. Tbe cases of Fifield v. Pennsylvania Insurance Company, 47 Penn. 166; Dole v. New England Insurance Company, 6 Allen 373; and Dole v. Merchants’ Mutual Insurance Company, 51 Maine 465; and Mauran v. Alliance Insurance Company, 6 Wallace 1, where the risk of capture was excepted and the taking by Confederate cruisers was held to be a capture, are, therefore, not in point. The case of Nesbitt v. Lushington, 4 Term 783, more nearly resembles this. There the vessel being forced by stress of weather into Elly Harbor, coast of Ireland, and there being a famine at the time, the people came on board and took control of the ship froni the captain and crew by violence, and weighed her anchor, by whicii she drove on a reef of rocks and was stranded. They compelled the captain to sell the corn on board at three-fourths its invoice price, except ten tons lost by stranding. Lord Kenyon said that the case did not fall within the meaning of “ arrests, restraints and detainments of kings, princes and people;” that “people” meant “the ruling power of the country,” which this mob was not. Mn Justice Buller was of the same opinion and seems to have considered the acts of the mob as “wrongful acts of individuals,” which are usually described as perils of pirates, rogues and thieves.”

Fourth — It is contended by the defendant, lastly, that it can not be held liable because the taking is not included in either the special or general words of the peril clause of the policy. The perils are as follows: “ Of the rivers, fires, rovers, assailing thieves, and all other perils and losses and misfortunes that have or shall come to the hurt, detriment or damage of the said goods and merchandise or any part thereof by reason of the dangers of the river.”

The judge a quo thought that this mob of citizens were assailing thieves, but we may doubt the safety of such a conclusion, for it is not clear that they took the property animo furandi. But their acts may still fall under the general words of the peril clause. It is well settled that these general words do not extend the scope of the policy so as to include perils beyond and entirely different from those specially enumerated. But it is equally well settled that it has some effect in embracing risks of a character similar to those specially insured against ejusdem generis.

But the defendant urges that the last words of the general clause, “by reason of the dangers of the river,” restrain its operation to one. alone of the previously enumerated risks, namely, perils “ of the rivers.” This, in effect, is to say that the defendant insured against, “the perils of the rivers and all other perils of the river,” for that is. what the general clause, thus interpreted, amounts to in brief. Such a construction does not seem reasonable or necessary. On the contrary, it would seem the defendant intended by its language to say that it took certain risks and all others ejusdem generis that might occur during the navigation of the river from New Orleans to Cincinnati.

It remains, therefore, to inquire if the acts in question, though not ■clone animo furandi, were ejusdem generis with those specially insured against, viz: the acts of “rovers and assailing thieves.”

In Naylor v. Palmer, 8 Exchequer 750, where the passengers, who were coolies, rose upon the crew and with violence seized the vessel, the court, Chief Baron Pollock, said: “ The act of seizure of the ship and taking it out of the possession of the' master and crew, by the passengers, was either an act of piracy aud theft,' and so within the express words of the policy, or, if not of that quality because it was not done animo furandi, it was a seizure ejusdem generis analogous to it or to barratry of the crew, hilling within the general concluding words of the perils enumerated by the policy.” This case liavingbeen taken up to the Exchequer Chamber, was affirmed, the court, Coleridge, B., saying that the acts of the passengers were “either direct acts of piracy or acts so entirely ejusdem generis that if not reducible to the special words of the policy, they were clearly included within the general words at the end of the peril clause.”

Similar language may be applied in this case to the acts which caused the total loss to the plaintiffs of their goods. They may not be the acts of “rovers and assailing- thieves,” for those imply the ■animus furandi, but the taking was ejusdem generis; it was without any pretense of sanction by even a pretended authority, and the evidence shows it was accompanied with acts of robbery, the bar of the boat being not unnaturally a special object of plunder. We conclude, therefore, that this taking was a peril included in the general words at the close of the ueril clause, and that there is no error in the judgment.

Judgment affirmed.

Rehearing refused.


text:
    No. 3201.
    A. Bartell v. J. G. Lallande.
    TEhe obligations between employer and laborer on a plantation are reciprocal. If tbe employer discharge tlie laborer before the time of his engagement has expired, without any just cause, he at once incurs the liability of paying the laborer for the whole time of his engagement. On the contrary, if the laborer leaves his employer before the time of his engagement has expired, without any just cause, he thereby forfeits all the wages that may be due him, and contracts the obligation to return all moneys that he may have received from his employer on account of such employment. Therefore, if the evidence shows that the laborer left his employer without any just cause before the time of his engagement had expired, he can not recover from the employer any wages for the time he has served.
    Appeal from the Nintli Judicial District Court, parish of Natchitoches.

      Orsborne, J. G. J?. JDranguet, for plaintiff and appellee.

      Pierson <& Levy, for defendant and appellant.
    This case was tried by a jury in the court below.
   Howell, J.

Plaintiff claims $550 as the value of his share of the crop of 1869 and $300 damages, on the allegation that he was discharged without cause by defendant, the proprietor and employer. The defense is that plaintiff abandoned the crop without the consent and against the remonstrances of defendant, by which he put au end to the contract and forfeited his rights to any interest or part therein,, which defendant informed him would be the result of his so leaving,, and that defendant was thereby damaged to the amount of $300. Plaintiff obtained a verdict and judgment for $436 17, and defendant appealed.

It is shown that in May, 1869, when seven laborers previously employed by defendant left, the plaintiff undertook, with one other, to cultivate, gather and save the crop for one-third in kind (one-sixth to plaintiff), when the corn was gathered and the cotton baled for market, the defendant to furnish supplies, etc.; that in August plaintiff left, as he professed, for a week to visit his children, when the crop, needed his attention and labor, and notwithstanding the objections, and remonstrances of defendant, and being told expressly if he left he would lose his rights to the crops; that at the expiration of about sixteen days, and after defendalit had hired other laborers, plaintiff returned and offered to resume work and complete his contract, to. which defendant objected, and ujton the former’s persisting in working-on the place, the latter had him taken before a justice of the peace, who ordered that he should leave the place.

Under these circumstances there was no just cause for the plaintiff’s, leaving, and he certainly put an end to the agreement, and it rested with the defendant whether he would renew it or not. •

Art. 2750 [2721] C. C. provides, if “a laborer, after having hired out his services, should leave his employer before the time of his .engagement has expired, without any just cause of complaint against the employer, the laborer shall thereby forfeit all the wages that may be due to him, and shall moreover be compelled to repay all the money he has received, either as due for his wages or in advance thereof on-the running year, or on the time of his engagement.” The two preceding- articles make the obligations and rights of laborers on plantations and in manufactures and their employers reciprocal. The law recognizes no difference between them. Laborers are as fully and stringently bound by the terms and obligations of their contracts as their employers are, and when they violate them they must bear the legal consequences. The great importance of the agricultural interests of this country demand that these rules of law and justice, as well as-others, be maintained in all their vigor and integrity.

The defendant is entitled to no damages in this case.

It is therefore ordered that the judgment of the lower court and verdict of the jury be set aside and annulled, and that there be judgment in favor of defendant, with costs in both courts.


author: Taliaferro, J.

text:
    No. 3249.
    Artemise E. Bird v. J. V. Duralde, Sheriff, et als.
    In a suit hy the -wife vrho has been separated in property from her husband and authorized to administer her own affairs, by way of third opposition against the creditors of her husband, who have seized the crop as the property of her husband, it is incumbent upon her to establish the validity of her judgment of separation. If she show, in answer to tlie objection that her judgment is invalid because her husband was solvent and had ample means to satisfy her demands after paying all his liabilities at the time her suit ■was brought, that his affairs were in a disordered and embarrassed condition, and that, after paying his debts he would have nothing left with which to satisfy her claims, then she will bo held to have had the right to institute and prosecute her suit for a separation of property. If she show, in answer to the objection that her judgment of separation is null because she has not made proper efforts to enforce it, that she has caused repeated executions to issue thereon, and has realized but a small portion thereof which has been credited on the judgment, that in addition to her proceedings by execution, she has taken in part payment, at a fair price, certain lots of ground belonging to her husband, which have also been credited on the judgment, then she will be held to have made proper-efforts to enforce payment, and her judgment of separation of property will not be held to be void on that account.
    The wife having established the validity of her claim, her right to institute and prose* cute her suit for a separation, and having shown that she has made every possible effort to enforce her judgment, and having shown also that a large portion of the real estate belonged to and constituted her separate estate before her marriage, she must be held to be entitled to administer it, and to enjoy in her own right the crops made after-the rendition of her judgment of separation of property from her husband.
    Appeal from the Fifth Judicial District Court, parish of West Baton Rouge.

      Posey, J, Samioel P. Greves and A. 8. Herron, for plaintiff' and appellee.

      White & liohertson, Barrow & Pojoe and Puqua & Oallihan, for defendants and appellants.
   Taliaferro, J.

This controversy is between a wife alleging she is. separate in property, and the creditors of her husband. The wife, who. is the plaintiff in this suit, instituted this proceeding hy way of third opposition, claiming the proceeds of a crop of sugar raised in the year-1869, chiefly, as she alleges, on her own plantation, but partly on that of her husband; the said crop of sugar and the molasses, the product of her cultivation for the year 1869 having-been seized under executions issued under judgments of various creditors of her husband and advertised for sale by the sheriff. She shows that by judgment of a competent court, rendered on the twentieth of July, 1866, she was. decreed to he separate in property from her husband and authorized to-administer her separate estate. She alleges that by the authorization so decreed she has continued to administer her separate property independently of her husband, and in so administering it, she has carried on the cultivation of her plantation in her own interest and for her-separate use and benefit.

During the month of December, 1869, executions were issued in four-several cases on judgments of the creditors against Thompson W. Bird, the plaintiff’s husband, and all his real estate, consisting of his one-third interest in the Hollywood Plantation,” the Bellevue Place,, several detached parcels of land, mules, stock, farming utenfeils, etc., were seized and sold on the fifth of March, 1870, on a credit of twelvemonths, the proceeds amounting to $36,095, for which bonds were taken from, the various purchasers according to law. Previous to the sale, an execution was issued on the wife’s judgment, and the same property was seized. The property, it seems, brought an amount exceeding that of the prior mortgages. The sugar crop of 1869 and the molasses were sold by '.consent, and the money held subject to the decision of the suit.

The proceeds of the sale of the real estate over and above the amount of the prior mortgages and those of the sugar and molasses form the subject of the contest. The wife claims the latter as owner, the former by her tacit and judicial mortgage. The creditors oppose her claims, alleging the illegality of her judgment on various grounds, and they contend that the crop of 1869 seized under execution was the property of her husband or of the community and subject to the payment of his debts.

Judgment was rendered in favor of the plaintiff; her judgment of ■separation of property was held to be valid, and she was decreed to be the owner of the crop of 1869, and entitled to its proceeds. The judgment of 1866, dissolving the community of acquets and gains, awarded the wife the sum of $3550 24 on account of paraphernal funds received by the husband, and recognized a legal tacit mortgage against her husband to date and take effect from the year 1837 for a part, from subsequent dates for other portions, the latest from February, 1856. Several credits on this judgment being deducted, there was a balance due at the rendition of judgment in the present suit of $1694 33, which the court ordered to be paid by priority out of the proceeds of the real ■estate, and directed the remainder to be distributed among the other creditors, according to law. From this judgment the creditors appealed.

The grounds taken by the appellants in attacking collaterally the judgment of the plaintiff against her husband are: That the insolvency of the husband is not shown; that having failed to prosecute her judgment as required by law, the judgment itself became null, and as a consequence the community existing between herself and husband was not dissolved; that the proceeds of the crop of 1869 do not, therefore, belong to the j>laintiff as her paraphernal means, as she pretends, but are subject to be applied to the payment of the debts of the husband.

After some pains taken in the examination of the large record brought up in this case, we come to the conclusion that at the time of the institution of the plaintiff’s suit for a separation of property Thompson W. Bird was in embarrassed circumstances. The counsel of the appellants haye labored assiduously to show the contrary, but we think unsuccessfully. Upon the basis of the first estimate presented, an •eijor lias crept into tlie array of assets, we apprehend, by giving the amount of value of property assessed to Bird in 1866, and besides his interest in the Hollywood estate ; the latter, we imagine, being included among the assessed property estimated at $32,890. The value of his interest in Hollywood being put at $8333, this sum should not ■appear as an asset if it be embraced in the assessment. If so, the amount of liabilities preponderates. The second tableau is not more satisfactory. Resort is had to doubling the value of the Hollywood plantation, making it worth $50,000, whereas in the first estimate it was taken at $25,000, the value as shown by the evidence in this case ; to setting down as an asset a mortgage to Bird by Mrs. Daigle for $27,150, and adding $6698, amount brought out by the first calculation .as what Bird is worth over and above his debts. The aggregate in the •second estimate making him worth, above all his liabilities, $42,181, a •sum sufficient to cover all the debts of the complaining creditors, the balance due on the wife’s judgment, and to leave no inconsiderable ■sum besides. The Daigle mortgage is not explained; it is not shown that the notes upon which it is predicated are held by Bird.or not, or whether they are worth anything or not if he be the holder. Eor aught that appears, they may have all been paid. The introduction of this mortgage and the $50,000 valuation of Hollywood in evidenco as showing ownership of property in Bird, was objected to, and the court below refused to admit it, on the ground that it was offered after testimony had already been taken on both sides of the question relating to the indebtedness of Bird and his means of discharging it; that the same was offered at an improper time and out of the regular order of taking testimony, and was calculated to take the plaintiff off her guard and by surprise. A bill of exceptions was taken by the •defendants.

We deem it unnecessary to decide upon the bill of exceptions, as the testimony, had it been admitted, would be contradictory in part, and, upon the whole, vague and unreliable for the purpose for which it was sought to be used.

The $40,000 of assets in the hands of the attorney, G-reves, of which one-half, it is said, belonged to Bird, consisted of notes and uncollected debts due the estate of Abraham Bird, whose executor, it seems, Thompson W. Bird was. These were to a large extent worthless, and the evidence does not warrant the conclusion that Thompson Bird’s interest in them was worth more than the amount which the attorney paid over to him, which was about five or six thousand dollars in all. All estimates of the character of those made by the defendants as to the value of the property of Bird, are indefinite and unsatisfactory. The evidence satisfies us that the situation of the affairs of the husband .in this case were such as authorized the wife, by article 2425 of the Civil Code, to petition against lier husband for a separation of property. That the plaintiff’s claims against her husband were welk founded, seem, not to have been earnestly controverted. They are-fully established. It is shown that a large portion of the land embracing the Esnard Plantation is her separate property.

The defendants contend that the judgment of the plaintiff and opponent is null on the ground that it was not enforced in the manner contemplated by law by a continuous effort to realize its amount out of the property of her husband. We find that the wife’s judgment was-obtained on the twentieth of July, 1866; an execution was issued on-the tenth of August following; property was seized and sold the sixth of October, and $597 30 were made and credited on the judgment.. On the eleventh September, 1866, another execution issued, under which certain judgments were seized, but we find nothing in the record showing that anything was made by this seizure. On the twenty-ninth-of December, 1869, a fieri faeias issued, and it seems that the further sum .of $324 79 was made under this seizure and credited upon the-judgment. Afterwards the further sum of $1500 was credited upon the judgment in consideration of the transfer by the husband of certain lots of ground at East Pascagoula. The interval between the-issuing of the first and last execution, a period of about three years, the defendant argues was a delay fatal to the validity of the judgment, and cites the case of Bertre v. Walker, sheriff, et al., 1 Rob. 432. But,, in that case no execution issued on the wife’s judgment until twelve months had elapsed from the rendition of the judgment, and no effortr of any kind had been used to realize its amount. No payment had. been made upon it.

We think that a sufficient diligence is shown in this case in the-prosecution of the plaintiff’s judgment. Besides the property seized,, there was no other personal property of the husband that could be reached. The interval of non-action worked no injury to the defendants. The records show that they lay dormant two of three year®, after the rendition of the wifo’s judgment and failed to seize any oí their debtor’s property; that they waited until the third crop made by Mrs. Bird was ready for sale, the first one perhaps that was worth, seizing, as the only available source from which they expected anything. Bird’s real estate was under heavy mortgages, which, perhaps,, presented a barrier insurmountable to these defendants. They might have interposed in regard to the personal property seized by the wife • and raised the issue long before as to the validity of her judgment,, but this was not done.

Lastly, it is urged by the defendants that the cultivation of the-plantation, though nominally carried on in the name of Mrs. Bird, is-really conducted by the husband for his own use and benefit.

They assert that the Esnard and Bellevue plantations, with all the mules and farming utensils, belonged to Bird, and contend that the wife could not cultivate those plantations on her own account. The evidence, as we understand, is, that what is called the Esnard plantation is the separate property of the plaintiff; that her principal cultivation was carried on upon that plantation; that she also had a part of the Bellevue plantation in cultivation in the years 1868 and 1869, and that the greater part of the sugar crop of 1869 was grown upon the Esnard plantation. No effort was made by the defendants to show what portion of that crop was raised on the land of the husband. They treat it as entirely the property of the husband. The question raised on this branch of the contest is, did the fact of the wife’s cultivation in 1369 of a part of lier husband’s plantation, in addition to that of her own, vitiate and render null her judgment authorizing her to administer her own affairs. Under all the facts of the case we think it did not. It is proved that the management of the plantation was under her control. It is shown that she made the contracts with the laborers and that the transactions with the commission merchant were carried on in her name through the agency of her husband, acting under a power of attorney from her.

We conclude that the judgment of the court a qua was properly rendered and should be maintained. The claims of the wife are clearly bona fide. The embarrassed state of the husband’s affairs authorized ber judgment of separation of property; sbe has shown sufficient diligence in the prosecution of her judgment, and that she has assumed under that judgment the administration of her separate estáte.

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

Rehearing refused.


text:
    No. 3202.
    E. S. Dancy, Wife, etc., v. Martin, Cobb & Co.
    A confession of judgment by the -wife on obligations -which, she has given jointly or in solido with her husband, in liquidation and settlement of the debts of the husband, is not binding on the wife. On the trial of a suit by the wife to annul a judgment which has been confessed by her, in solido with her husband, if the evidence shows that the parties were not separated in property, and that the husband was administering the estate of the wife as well as that of tlio community, and that tlie debts for which the wife confessed judgment in solido with her husband did not enure to her benefit or to the benefit of her separate estate, such judgment will he declared null and of no effect as against the wife.
    Appeal from the Thirteenth Judicial District Court, parish, of Madison.

      Hough, J. H. I). & T. H. Farrar, for plaintiffs and appellees.

      Sparrow & Montgomery, for defendants and appellants.
   Howell, J.

These are proceedings by a married woman to enjoin and annul two judgments rendered on twenty-eighth October, 1861, upon confessions in the cases of Martin, Cobb & Co. v. D. M. Dancy et als., and Cobb, Manlove & Co. v. De Moss et als., and the main question involved is whether or not the plaintiff was liable for the debts wbioli were the basis of said judgments.

' It seems that in the latter part of 1845, William. C. De Moss died in Madison parish, leaving five children and a large plantation, over one hundred slaves and other property in said parish, inventoried at over $82,000, and considerable property in Mississippi; that in March, 1846, David M. Dancy, a son-in-law of the deceased and husband of the plaintiff, was appointed curator of the succession; that in September, 1849, said Dancy was appointed tutor of three of the De Moss children, then minors; that the said plantation, called the “Crescent Plantation,” was very productive and well managed, the crops from 1845 to 1862, except two years of overflow, averaging from 600 to 800 bales, the revenues largely exceeding the plantation expenses, which are estimated by witnesses at from $5000 to $10,000 per annum; that in March, 1858, three of the parties interested in said property, to wit: D. M. Dancy, his wife E. S. Dancy, authorized by her husband, and Yannerson De Moss, who was one of the three minors above referred to, acknowledged themselves indebted to Martin, Cobb & Co., merchants in New Orleans, in the sum of $33,490 20, evidenced as described in act of mortgage, by three notes of $8331 87 each, dated on twenty-eighth February, first March and second March, 1858, payable one day after date to the order of, and indorsed by themselves, and by a draft drawn by said D. M. Dancy for $7213 64 on and accepted by G. M. Pinckard & Co., and protested on twentieth December, 1857, ahd to secure the payment of the same and all advances in cash and supplies to be made to said Dancy and De Moss, the said three parties mortgaged “an undivided three-fifths interest in and to” the said Crescent plantation, on which the parties resided, and.some oighty-two slaves thereon; that in April following the same parties acknowledged an indebtedness to G. M. Pinckard & Co., merchants in New Orleans, of $46,475, evidenced by fourteen notes for different amounts, dated sixteenth March, 1858, payable to tlie order of D. M. Daney, some at eleven, some at twelve and some at thirteen months from date, and to secure their payment executed a mortgage upon “ an undivided three-fifths interest in and to the same property; that on twenty-eighth October, 186 i, Martin, Cobb & Co. filed a suit against the said parties, D. M. Dancy, bis wife and Yannerson De Moss, on tlie three notes and draft described in tlie first act of mortgage, and two other claims, one described as a note for $5507 11 for plantation advances, and the other as a balance of an account current rendered twenty-second March, 1859, by G. M. Pinckard & Co., and by them transferred to tlie plaintiffs, wlio asked for recognition of mortgage as made in both the-above mentioned acts of mortgage, and upon producing the confession of the said defendants (the wife being authorized by the husband) on the four notes and the account, amounting to $34,626 60 (omitting the draft for $7213 64), and filing eight notes different from those described in the petition, five only of which being signed by Mrs, Dancy, they obtained judgment in solido against the three defendants on all the claims described in their petition, and amounting to $41,840 25; that on the same day Cobb, Manlove & Co., merchants in Vicksburg, Miss.,, sued D. M. Dancy, his wife, Vannerson De Moss, Alice De Moss, wife of J. L. Lum, and David De Moss (the three last being those to whom D. M. Dancy was appointed tutor in 1849) for $7219 66, amount of account current rendered them, it is alleged, as the owners of the Crescent plantation for plantation and family supplies to sixth April, 1861, and upon producing the confession of the said defendants (the wife being here also authorized by the husband) and filing an account made out in the name of “Dancy & De Moss” for said amount, consisting of charges for commissions for indorsing and advancing payment of and interest on two notes, they obtained a judgment in solido against the defendants for the amount thereof.

It is the execution of these two judgments, now owned by T. J. Martin, which Mrs. Dancy enjoins, in January, 1870, and their nullity she seeks as to herself, and her interest in the property held in common with her coproprietors and codefendants, on the grounds that they were rendered on obligations contracted by her husband, for which she was in no manner bound in law, and which did not inure to her benefit or that of her separate property; that the confessions of judgment are mere contracts, which she signed in error and in ignorance of her rights and under marital influence, and that the said confessions and the acts of mortgage are contracts prohibited and null as regards herself.

It is very clear that a wife can not bind herself nor be held bound for a debt of her husband, and the inquiry arises in this case, were these debts the debts of the husband or of the wife? There was at the time no separation of property between Dancy and his wife, and it is not shown that she had the separate administration of her paraphernal property. On the contrary, her husband was administering and managing it himself, and all the fruits and revenues thereof belonged to the community, and all the debts contracted by him were community debts, as between him and his wife, for which she was not liable, nor was her separate property liable for them. The plantation and slaves, inherited from their parents, belonged to Mrs. Dancy and her coheirs, but the administration of her portion was under the control of her husband, and in conducting the plantation with the other heirs, tlie husband or the community, and not the wife, was their partner in the planting partnership, so far as the questions raised in this record are concerned.

We conclude, with the district judge, that Mrs. Dancy is not liable under the judgments enjoined. We think, also, he did not err in restricting tha injunction to one-fifth. The evidence is not satisfactory that Mrs. Dancy is the owner of her sister’s (Mrs. Waddill) interest. Admit that the description of the land is correct, Mrs. Dancy was not authorized by her husband or the judge to make the purchase. And, besides, having just been relieved in this proceeding from liability because she was not administering her separate property, it would be inconsistent to declare this purchase to be her separate property, and not that of the community. Whatever is purchased during the existence of the community, whether in the name of the wife or husband, is presumed to belong to the community.

Judgment affirmed.


author: Howe, J.

text:
    No. 2956.
    State of Louisiana v. J. J. McCort.
    In a criminal case, tlie objection that there was no order of the court authorizing the filing of the information comes too late if only made for the first time in the Supreme Court.
    The jury, finding the greater offense charged in the indictment was not committed by the accused, have the right to modify their finding so as to bring in a verdict of guilty of the lesser offense charged.
    The revisory legislation of April, 1870, did not repeal, hut continued in force all laws which were in existence before, and was continued in the revised act. State v. Ikower, 22 An. 273 Therefore, if an offense had been committed against the law as it stood before tbe passage of the revisory legislation, but which was not punished until alter it passed, and the statute thus violated had been re-enacted in the revisory legislation of 1870, such offense is still punishable, notwithstanding the repealing clause of the revisory act of April, 1870, repeals all laws not contained therein except such as are specially excepted.
    Although the general rule is well settled that the right of the accused to be heard by counsel is entitled to the largest latitude, yet, if the question which the judge a quo refuses the counsel of the accused to urge before the jury is one of law alone, which can not prejudice the rights of the accused, whether it be determined one way or the other, then and in such case a new trial will not be granted because tbe counsel was refused permission by the judge a quo to argue the point to the jury.
    Appeal from the-First District Court, parish of Orleans.

      Alelí, J. Simeon JBelden, Attorney General, for the State.

      J. J. Foley, for defendant and appellant.
   Howe, J.

The prisoner having been convicted of “entering- a dwelling house in - the night time without breaking and with intent to steal, and of larceny,” and sentenced to imprisonment at hard labor, has appealed. He makes four points in this court:

First — That there was no order of the court authorizing the filing of the information. This objection, made here for the first time, comes too late.

Second — That the verdict of the jury is not responsive to the charge as set forth in the information. The charge was “breaking and entering a dwelling house in the night time with intent to steal, and larceny.” The jury, finding that there was no breaking, had a right to .find the verdict they did. The lesser offense was necessarily included in the circumference of the greater one of the same character. 6 An. 286.

Third — That the law on which the prosecution was based and under which the defendant was sentenced had not then been promulgated (July, 1870). The law had been in force several years prior to that time, and in the case of State v. Brewer, 22 An. 273, we had occasion to decide that the revisory legislation of April, 1870, did not repeal, but continued it in force.

Fourth — That the judge a quo erred in refusing to permit the counsel •of the accused to argue this question of promulgation to the jury. As a general rule, we would be slow to sanction any limitation of the right of the accused to be heard by counsel. But in this case, the point ■which the counsel desired to argue was so clearly outside the facts and the law of the case that we can not believe the action of the district judge constitutes a sufficient reason for a new trial. There was no «error to the prejudice of the accused. It was immaterial whether the revisory legislation of 1870 had been promulgated or not.

Judgment affirmed.


author: 'Wyly, J.

text:
    No. 3167.
    Satterfield v. Spurlock, Spurlock v. Satterfield, and Satterfield v. Spurlock, (Consolidated)
    The decision of this case involves only questions of fact as to the relative proportion of the claims which had for their consideration the sale of slaves and the sale of land and perspnal property. The principles on which the present decree is "based were settled in the decision of the same case, reported in 21 An. page 771, viz: That obligations having for their consideration the sale of land and slaves could only be enforced to the extent of the ascertained value of the-land at the time of the sale.
    Appeal from the Seventh Judicial District Court, parish of Avoyelles.

      Miller, J. 8. R. Thorpe, for plaintiff and appellant.

      F. Forth Cullem., for defendant and appellee.
   'Wyly, J.

These consolidated cases were before this court in December, 1869, and the decision is reported in 21 An. 771, to which ■¡reference is made for a statement of the facts and issues presented for adjudication

After disposing of various issues the cause was “remanded to ascertain the relative amount of the slave and other considerations in the remaining notes of Spurlock, filed in this cause by Satterfield, with instruction that no judgment can be rendered by the court of the ■first instance for the slave part of the consideration of said remaining notes.”

At the trial on tlie remandment the district judge came to the conclusion, from the evidence, that the slave part of the notes declared on by Satterfield was sixty per cent, and the valid part, to wit: the-part for land and movables, was forty per cent., and on this basis he determined the rights of Satterfield; he, however, compensated the claim of Satterfield by large sums or credits, which he ascertained to be due Spurlock, and finally gave judgment in favor of the latter against the former for $2170 85 and costs.

Prom this judgment Satterfield appealed.

There is a wide difference in the opinions of the witnesses of Satterfield and the witnesses of Spurlock as to the relative amount of the slave and other considerations of the notes.

After mature consideration we have come to the conclusion that the apportionment fixed by the district judge is not correct. We think fifty per cent, is a proper estimate of the slave consideration in the notes, and fix the apportionment at that rate.

Satterfield should, therefore, have judgment against Spurlock for hall the amount of the notes sued on, after deducting $37,385, the amount of the credit arising from the giving in payment of the twelfth of April, 18G5, which sum was by the parties imputed to the third note and the balance to the other notes next in order owned by Satterfield.

The third note, due the eighteenth of May, 1861, amounted to-$21,726 72, principal and interest up to the twélfth of April, 1865, the time at which the credit arose from the act of giving in payment, and. this note was discharged by the imputation of the parties out of said credit of $37,385, and the balance of said credit, to wit: $15,658 28, must be applied to the note next in order held by Satterfield, which is the fifth note, due the eighteenth of May, 1863, and amounting, principal and interest up to the twelfth of April, 1865, the day of the credit, to $19,077 12, from which, after deducting the said credit, there remains an unpaid balance of $3418 84, to be apportioned according to the estimate we have made of the slave and other considerations of said fifth note.

The sixth, seventh, eighth, ninth and tenth notes each amount to $16,560, of which we estimate the valid part to be one-half of each note, to wit: $8280. On our apportionment we think Satterfield should have judgment against Spurlock for $43,109 42, with eight per cent, per annum interest on the valid part of each note from its maturity, except on the balance due on the fifth note, on which the interest, should be counted from the twelfth of April, 1865.

As to the other credits allowed Spurlock by the district judge we think they should not be allowed, and that the bills of exceptions taken by Satterfield to the introduction of proof to establish them,, was well taken. The court permitted Spurlock to prove credits that he had not claimed in his pleadings, and which, if they exist, have arisen since the date of the judgment of the thirty-first of October, 1866, from which the devolutive appeal was taken. On the remandment the pleadings were not amended, and the only issue before the court was to ascertain the slave and other consideration of the notes sued on by Satterfield, and after making the apportionment to give Mm judgment for the valid part of said notes, after allowing the credit arising from the act of giving in payment of the twelfth of' April, 186'5. Whatever rights or credits Spurlock may havo or be entitled to by virtue of the execution of the judgment of the thirty-first of October, 1866, by Satterfield, pending the devolutive appeal, lie may assert in an action hereafter and his right to do so is reserved in this decree.

It is therefore ordered that Edward H. Satterfield have judgment against Thomas J. Spurlock for the sum of forty-three thousand on© hundred and nine dollars and forty-two cents ($43,109 42), with eight per cent, per annum interest on $1709 42 thereof from the twelfth of April, 1865; with like interest on $8280 thereof from the eighteenth of May, 1864; on $8280 thereof from eighteenth of May, 1865; on $8280 thereof from the eighteenth of May, 1866; on $8280 thereof from tlie eighteenth of May, 1867; and like interest on $8280 thereof from tlie eighteenth of May, 1868.

It is further ordered that the mortgage given by Spurlock to Satterfield on the eighth day of October, 1857, to secure the said debt be recognized and rendered executory on all the property described in said act of mortgage, except the slaves; also, that the vendor’s-privilege thereon to be recognized and enforced.

It is further ordered that said Spurlock pay costs of both courts


text:
    No. 3235.
    H. B. Benjamin v. Parish of East Baton Rouge.
    Tlie proceeding authorized by act jNo. 69, of 1869, against a parish, to compel the properly constituted authorities to levy and collect a tax to pay tor work that has been done for the parish, under contract with the police jury, is a proceeding in the nature of a man* damus to compel tho officers of tho parish to do what is required of them by law. . The statute does not imposo upon the court the burden of levying a tax, but simply authorizes-it to render judgment for the amount found to be due, and to order the proper authorities to levy and collect tho tax necessary for its payment. The act is not therefore obnoxious-to the provisions of tho Constitution on the subject of taxation.
    Appeal from tlie Fifth Judicial District Court, parish of East Baton Rouge.

      Posey, J. Fuqua & Oallihan, for plaintiff and appellant.

      J. W. Burgess and A. S. Herron, for defendant and appellee.
   Howell, J.

Plaintiff sues upon several warrants issued to him for the erection of a bridge in tlie parish under contract, and drawn upon ■the “bridge fund,” and he asks the court to order the assessor and collector to assess and collect ■ a tax sufficient to pay Ms claim and costs, under the provisions of act No. 69, of 1869, re-enacted in the Revised States, 1870, articles 2.628, 2629 and 2630.

The defense is that said act sixty-nine is unconstitutional, as by the Constitution only the Legislature and police jury can levy and collect taxes; that by act of 1868, page 175, the parish could only levy a tax of three-quarters of one per cent., which had already been levied, and that the “plaintiff took the warrants sued upon at the rate of fifty •cents on the dollar for work done, which warrants so issued were to be in full for said work at the depreciated value thereof, the consideration being for work done, and valued by contract at $300 in currency and $600 in parish warrants as currency in this particular case.” ,

Judgment of nonsuit was rendered and plaintiff appealed.

It seems to us the judge erred. The right or authority to issue the warrants in question is not denied, and it is shown plaintiff did the work in pursuance of a contract made under a resolution of the police jury; that it was accepted by the parish, the warrants given, and that the police jury made an appropriation of a sum sufficient to pay for "the proposed work, which appropriation, it is admitted, was included in the assessment for the year and the tax in process of collection at the time of filing the defense in the court below. No legal excuse is shown for not paying the warrants in the hands of the plaintiff or ■other person. It is a matter of no concern to the parish who receives the money, if it is liable for their payment, and it can not be seriously •contended that the giving of the warrants extinguished the obligation of the parish to pay the amount for which they were issued. The parish which issued the paper is in a very different position from a third person who may have given its warrants in payment for work •done for said third person. The parish is clearly bound, to pay the face of the warrants, whether held by the payee or his assignee. And if the funds provided by the police jury for such payment have been misapplied or not collected, the holder is entitled to the remedy provided by act No. 69 of 1869, or articles 2628 to 2630 Revised Statutes, which we can not say is clearly in conflict with the Constitution. The •court does not, under this law, assess a tax, but renders a judgment for money against the parish, and directs the proper officer or officers to whom the Legislature delegated the power, “forthwith to assess a parish tax at a sufficient rate per cent, upon the assessment roll of the •current year to pay and satisfy said judgment with interest and costs.” This is in the nature of a mandamus. See 11 An. 672.

It is therefore ordered that the judgment appealed from be reversed, ■and that plaintiff recover of the parish of East Baton Rouge the sum •of $600, with legal interest from judicial demand, and costs in both courts; and it is further ordered that the Board of Assessors for said parish, composed of the clerk, recorder and sheriff, proceed forthwith to assess a parish tax at a sufficient rate per cent, upon the assessment roll of the current year to pay and satisfy this judgment, interest and costs, and that so soon as the said tax is so levied, the tax collector of said parish shall proceed at once to collect the same, in the manner in which parish taxes are now collected, which shall constitute a special fund out of which the judgment, interest and costs shall be paid.


text:
    No. 3236.
    Elizabeth Barbee v. S. B. Perkins et al.
    -A sale of real property belonging to a succession, under a decree of a competent court, will not be held to be an absolute nullity on account of irregularities in the mortuary proceedings which load to the granting the order. In such a case the claimant under au adverse title must first cause the sale to be annulled by direct action. ID An. 353.
    Appeal from the Fifth Judicial District Court, parish of East Baton Bonge.
    Posey, J. Pit qua c6 Callihan, for plaintiff and appellant.
    ' White c£ JRohertson and A. S. Herron, for defendants and appellees.
   Howell, J.

This is a petitory action, in wiiich plaintiff asks to be declared the owner and put in possession of a tract of land in the parish of East Baton Bouge, and in the possession of the defendants, ■on the ground that she inherited the same as sole heir of her mother, Mrs. Henderson, who died in 1854, in West Baton Bonge, where her succession -was opened, as alleged, by the appointment of plaintiff’s father, J. G-. Henderson, as her tutor, who, in such capacity, took possession of all her mother’s property, including the land in question, and has since illegally and by a fraudulent combination with defendants disposed of the same by means of certain void judicial proceedings, resulting- in a sale, which she describes but does not ask to be set aside.

The defendants'set up title by purchase at sheriff’s sale, made in October, 1861, in pursuance of a decree of the district court of West Baton Bouge, having jurisdiction of tire succession, granted upon the advice of a family meeting held in St. Landry, where the tutor and minor resided at the time, and a commission to the sheriff of East Baton Bouge, issued under said decree. They also plead the prescription of five years to any alleged irregularities prior and subsequent to the date of said decree.

The evidence shows that the sale was made as a succession sale, under an order of the district court of West Baton Bouge, where the succession of Mrs. Henderson was opened; that S. B. Perkins, one of the defendants, was the adjudicatee, who complied with the terms of ■sale by giving his note, due at twelve months, for the price, which was •delivered to the tutor, on whose petition the sale was ordered, and who on the same day purchased another tract of land from said Perkins, and gave up said note in payment of the price.

The record discloses many censurable irregularities in the mortuary proceedings; but we are not authorized, in consequence thereof, to treat the decree of a competent court and the sale under it as absolute nullities, and declare the plaintiff to be the owner of the land bought by Perkins in apparent good faith. Until the judicial sale is set aside, we must give effect to it and the proceedings sustaining it. 13 La. 431; 10 R. 396; 2 An. 467; 19 An. 354. This not being a suit to annul rhe judgment and sale under it, it is unnecesary to inquire into the effect upon the sale of the disposition made by the tutor of the note received by him from Perkins, the purchaser. • The tutor may have made himself liable to plaintiff by such transaction, but it does not render the sale null.

Judgment affirmed.


text:
    No. 1335.
    P. Duclos & Co. v. Citizens’ Mutual Insurance Company.
    Tbe policy of insurance contained a stipulation as follows; “In case the insured shall have-already any other insurance against loss by fire on the property insured, not notified to this corporation and mentioned in or indorsed upon this policy, this insurance shall be void and of no effect.” And the insured takes out a second policy in another companv on the same piece of property, without giving notice in the manner indicated in the first policy. Held — That by his failure to give notice, as stipulated in the first policy of the second insurance, he forfeited his right to recover on the first policy, the property insured having been destroyed by fire.
    Appeal from the Third District Court, parish of Orleans.

      Fellowes, J. 0. Posalius aud Alf. Philips, for plaintiffs and appellees.

      Oarleton Hunt and L. Oastera, for defendants and appellants.
    This case was tried by a jury in the court below.
   Taliaferro, J.

The plaintiffs sue on a policy of insurance to recover from the defendants $8,958 12, the proportional amount claimed to he due by the company under the policy for losses alleged to have been sustained by fire to the extent of $13,432. The answer is a. general denial. The defendants further aver that the policy sued upon is null and void by its conditions, the plaintiffs having taken a poliey on the same risk with the Star Mutual Insurance Company without, notice thereof to the defendants in violation of an express stipulation in the policy that “ in case the insured shall have already any other-insurance against loss by fire on the property hereby insured, not. notified to this corporation and mentioned in or indorsed upon this policy, this insurance shall he void and of no effect. And if the said insured or their assigns shall hereafter make any other insurance on the same property, and shall not, with all reasonable diligeuce, give notice thereof to this corporation and have the same indorsed in this Instrument, or otherwise acknowledged by them in writing, this policy shall cease and be of no effect.”

In the court below the case was before a jury, which rendered a verdict for the amount claimed. The defendants have appealed.

The policy upon which this action is founded bears date December 29, 1863, and was for one year. The plaintiffs had previously, viz: on the twenty-first of January, 1863, taken a policy on~tEe“same risk to the extent of $5000 from the Star Mutual Insurance Company for the period of one year. This policy was renewed for twelve months from ihe twenty-first of January, 1864, to the twenty-first January, 1865. It does not appear that the plaintiffs ever gave notice to the defendants of their haring insured the same property in the office of the Star Mutual Insurance Company. No entry of such notice appears on the ■original act, nor does any acknowledgment of notice appear on the instrument. It would seem from the tenor of the act and from the current of decisions on this subject the plaintiffs have forfeited their Tight to recover from the defendants in this case. The cases reported in 3 Rob. 385 and 7 Rob. 351 are in point; 2 Peters 29, and 16 Peters 510.

It is therefore ordered, adjudged and decreed that the judgment of. the district court be annulled, avoided and reversed. It is further ■ordered that there be judgment in favor of the defendants — the plaiutiffs paying costs in both courts.


author: . Wyly, J.

text:
    No. 2353.
    State of Louisiana ex rel. D. Scully et al. v. Canal and Claiborne Streets Railroad Company.

      A. mandamus will not lio to compel a board of directors of a street railroad company to collect an installment due by tbe subscribers on the stock of the'company, where, by a clause in the charter of the company, they have vested in them a discretion as to the time and the manner of making the collection.
    As a general rule the writ of mandamus will not lie to compel an officer or a company to do an act coming within the range of their duties where the law or the charter under which they act has vested in them a discretion to do or not to do it.
    Appeal from the Fifth District Court, parish of Orleans.

      Beaumont, J. Sornor c6 Benedict, for relators, appellants.

      M. B>. Ogden, for defendants and appellees.
   . Wyly, J.

The relators have appealed from the decision of the ■court below on a rule nisi, refusing to grant the writ of mandamus sought by them in this case.

The complaint is that the officers of the corporation known as the Canal and Claiborne Streets Railroad Company fail or refuse to discharge their ministerial duty; that they refuse to collect from the subscribers of stock the balance due by them, amounting in the aggregate to $175,000, although the said corporation is largely in debt; that-if the said subscriptions were collected there would be funds sufficient to discharge the liabilities of said corporation; that the relators are agrieved and prejudiced by this failure of duty, because they hold each one hundred shares of capital stock of said company, which was given them as part of the price of the sale of the right of way now enjoyed by said company ; that in transferring to the said corporation the right of way for a street horse railroad on Claiborne and other streets, acquired by relators and others from the city of New Orleans, it was stipulated that they and their co-owners should receive “five hundred shares of the capital stock of the Canal and Claiborne Streets-Railroad Company, said shares considered as fully paid, to enjoy all! the privileges and advantages of an equal number of shares paid in full, and to be exempt from any and all calls, tax or assessments, whatsoeverthat the relators were each to be stockholders of a. hundred shares, considered paid up, and the' capital stock of said company was to be $600,000, whereas the capital stock of said company is now but $425,000, thus diminishing the value of their shares y that the profits are being exhausted in paying the interest on tile-debt of $150,000, which the company owes, and this deprives the .relators of their share of its earnings; that if the said cash subscriptions were paid up it would be sufficient to pay the debt aforesaid, and the relators would thereby receive their share of the earnings of said company.

The prayer of the petition is that a writ of mandamus be issued to-said Canal and Claiborne Streets Railroad Company, its president, directors and officers commanding it, him and them to proceed at once to the collection of the unpaid subscriptions to its capital stock, amounting to $175,000, and in the event of the refusal of the subscribing stockholders to pay the balance of their subscriptions, to proceed to the forfeiture of their stock in accordance with the provisions of the charter of said company, and with the funds so realized that the said president, directors and officers proceed as speedily as-possible to the cancellation of the debts of said company.

The defense is:

First — That the petition discloses no cause of action to authorize the. remedy.

Second — That were the allegations true the relators have other remedies.

Third — That the amounts to be paid and the times of payment arc,, by the charter and the agreement signed by the relators, left to the discretion of the Board of Directors.

We think the last objection fatal to the pretentions of the relators.

Article four of the charter of this company provides that: “The* capital stock of this, corporation is hereby fixed at $600,000, represented by six thousand shares of one hundred dollars each; five percent. of each subscription shall be payable at the signing of these articles, and the balance shall be paid at such times and in such amounts or installments as the Board of Directors may order; provided, that not more than ten per cent, of said subscription shall be called for oftener than once within every thirty days. Should any subscriber refuse or neglect to pay punctually his installment or installments as. the same may mature and iall due, interest thereon at the rate of eight i per cent, per annum shall be added thereto from .maturity till payment, and if any subscriber neglect or refuse to pay his installment or installments within thirty days after the specified time of payment, the Board of Directors reserve to themselves the right of causing any share or shares upon which any installment may be due, to be sold at public auction or otherwise, after ten days previous notice to such delinquent subscriber.”

We think the amount to be collected by the corporation from its subscribers, and the time of payment thereof is left by the article of its-charter just quoted, to the discretion of the Board of Directors. It is well settled that the writ of mandamus will not lie to compel the officers of a corporation to perform a discretionary act. See State, ex rel. Mahan, v. Dubuclet, State Treasurer, and authorities there cited, lately rendered. Also, the State, ex rel., Bonnabel v. Police Jury, parish of Jefferson, lately rendered. State, ex rel., Burnett v. H. C. Warmoth et als.

It is therefore ordered that the judgment of the court a qim rejecting-relator’s application be affirmed with costs.


text:
    No. 3243.
    B. F. Burnett v. P. A. Walker, Administrator.
    The act of the twenty-second of December, 1865, giving to every bead of a family the right, to bold exempt from seizure by bis creditors one hundred and sixty acres of land and ' other personal effects as a homestead does not apply to succession property. Therefore, if such prQperty has passed into the succession, it may be sold for the payment of the debts thereof, notwithstanding this statute.
    Appeal from the Fifth Judicial District Court, parish of East Baton. Rouge.

      Posey, J. Greves & Dupree, for plaintiff and appellee.

      J. IF. Burgess and A. S. Serrón, for defendant and appellant.
   Howell, J.

The plaintiff alleges that he has a family, consisting-of a wife and four minor children, dependent on him for support; that he owns and resides on a tract of land of two hundred and fifty-six acres and the improvements thereon, and also a tract of one hundred and sixty acres adjoining; that the defendant, as administrator of the succession of plaintiff’s deceased wife, caused said land and all the-movables thereon to be inventoried as belonging to said succession and is proceeding to sell the same at probate sale to pay the debts of the succession, without regard to plaintiff’s right to a homestead under the act of twenty-second December, 1865, and he prays that one hundred and sixty acres of land, comprising the residence, and other improvements and certain movables specified in said act be decreed to be the property of plaintiff and exempt from seizure and sale.

The defendant answers that he is about to sell said property, but denies that plaintiff is entitled to the property claimed; avers that the statute invoked does not apply to successions and that the whole' property is liable to be sold to pay debts. Judgment was rendered in favor of plaintiff, and defendant appealed.

The plaintiff has not shown title to the land in question, and although it seems to have been inventoried as community property, he does not object to its sale as the property of his wife’s succession, and we must, therefore, consider it as really belonging to said succession and apply the law invoked accordingly; for we are not informed by the counsel of either party by what authority the administrator of a deceased wife can administer the property of the community of which the surviving husband is the head, and sell the property thereof to pay the community debts. Yiowing the property as belonging to the succession, we concur in the position of defendant that the law invoked by plaintiff does not apply in succession sales and that ho can not under it secure the homestead provided by it. The law, in its terms, •applies to sales under executions. See Revised Satutes, p. 333.

It becomes, therefore, unnecessary to examine the important question, discussed by both counsel, whether, under the Constitutions of the State aud United States, the act of 1865 can be enforced against creditors whose claims existed at the date of the passage of said act.

It is therefore ordered that the judgment of the district court be reversed and that there be judgment dismissing plaintiff’s demand, with costs in both courts.


author: Hoavell, J.

text:
    No. 3203.
    D. D. De Moss v. Cobb, Manlove & Co.
    Proscription docs not run against tlio action to annul a judgment that has "been rendered against a person incapable of standing in judgment. C. P. 612. Tho confession of judgment by a minor is a nullity which dates from its rendition, and tho subsequent acknowledgment of liability under the judgment after he becomes ot age, will not render valid the judgment which is void from the date of its rendition.
    Appeal from the Thirteenth Judicial District Court, parish of Madison.

      Hough, J. H. JD. & T. P. Harrcvr, for plaintiff aud appellee.

      Sparrow & Montgomery, for defendants and appellants
   Hoavell, J.

The plaintiff enjoins the execution of and seeks to annul a judgment by confession in iavor of defendants, on tho grounds that when, in October, 1861, the judgment was rendered he was a minor under the age of eighteen and incapable of standing in judgment, and that his tutor, D. M. Dancy, who with the counsel of defendants, induced him to sign a pretended confession of judgment, is the real debtor of defendants, and was at the time and is now indebted to plaintiff.

The defense is a general denial, and the allegation that prior to confessing judgment plaintiff was judicially emancipated and had settled with his tutor, and that the debt on which the judgment was based inured to plaintiff’s benefit. Prescription is also pleaded.

Article 612 C. P. declares that the nullity of a judgment against one not qualified to appear in a suit may be demanded at any time, unless the defendant suffer the judgment to be executed against his property without opposition. Prescription, therefore, does not apply if plaintiff was a minor, as alleged.

As to his age, it is clearly shown that when the alleged emancipation was granted, aud the agreement or settlement with his tutor was entered into, lie was under sixteen, and when the confession was made .and tlie judgment thereon rendered, he was only a few days over seventeen. These acts were consequently nullities. It is contended, however, that the evidence shows that after plaintiff became of age, he acknowledged his liability under the judgment, and its nullity was thereby cured. The evidence does not sustain this position, but if it did we are not prepared to say that such an acknowledgment would give validity to a judgment null at the date of its rendition. The acknowledgment might be the basis of another judgment on the debt.

Judgment afirme


author: Taeiaferro, J.

text:
    No. 2003.
    John Steib v. Joseph Kaiser.
    A surrender by an insolvent and tbe acceptance of tlie cession, vests the title to tlie property surrendered in tlie creditors. Tlie insolvent can not, therefore, after the surrender is made, set up any claim to the property surrendered, founded on the charge that the property surrendered lias boon fraudulently sold or disposed of by the syndic of the creditors. The insolvent, having parted with all interest in the property by the surrender, can not be hoard to complain of the illegal, fraudulent or simulated sale thereof by the syndic. He can not, therefore, maintain an action for the property which he has surrendered, against the purchaser at syndic’s sale, on the ground that the sale made by the syndic was simulated, because if the sale by the syndic be shown to be simulated and null, that nullity would not inure to the benefit of the insolvent.
    Appeal from the Second Judicial District Court, parish of Jefferson.

      Pardee, J. Preston & Pabatt, for plaintiff and appellee.
    TP". P. Hyman and Pacey £ Putter, for defendant and appellant.
   Taeiaferro, J.

This is a petitory action to recover from the dedefendant, who is alleged to be in possession of and wrongfully to withhold from the petitioner, seven lots of ground in the parish of Jefferson. Tlie petition avers that he purchased the property sued for at a syndic’s sale of property surrendered to his creditors by the defendant; that on the twenty-ninth of June, 1866, the defendant made a formal surrender of property under the insolvent laws of the State ; that the surrender was duly accepted, a syndic appointed, and the property sold in pursuance of an order of the Third District Court of New Orleans; that, by the surrender, the title of the property passed to tlie defendant’s creditors, and that plaintiff acquired title by virtue of the syndic’s sale.

The defendant denies that petitioner has any legal right to the property in question. He avers that the plaintiff and one Krieger, purporting to act as syndic in the matter of Kaiser v. His Creditors pending in the Third District Court of New Orleans, conspired together to defraud both the defendant and his creditors; that the proceedings, by which the apparent title to the property was placed in Steib were all illegal and fraudulent; that the price pretended to be given was simulated and fictitious; that defendant has never been dispossessed; that there has never been any sale of the property on account of the creditors, and if the property is not his, it belongs to the creditors. He alleges that Krieger is still syndic. He prays that Krieger be made a party, in his capacity of syndic, to protect the interests of the creditors. He prays that the plaintiff’s suit be dismissed.

Vandine, alleging himself to be a creditor of Kaiser, intervened in the suit, and adopts the allegations of the defendant. He prays citation against all the parties; that the suit be dismissed, and the property .be decreed to belong to the creditors; that the creditors, and especially the opponent, have judgment against Steib, etc.

Judgment was rendered dismissing the intervention, and decreeing the plaintiff owner of the property in-dispute, and that he be put in possession. A second trial was had, with the.same result. From the judgment rendered the defendant alone has appealed.

The proceedings taken in this case on the part of the defendant and intervenor seem to be of a novel character. They clearly are without, that definiteness which it is desirable pleadings should always possess.

The defendant does not protend that he has a better title than the plaintiff, nor does he pray to be decreed owner. The plaintiff shows muniments of title which indicate upon their face that he is the legal owner. The defendant does not deny the fact of his surrender in insolvency. This is clearly shown'by the records introduced in evidence. These show that the very property in contrpversy was surrendered and sold, and that the plaintiff became the purchaser. The formal surrender of the property and the regular acceptance of the cession vested the title in the creditors. The defendant afterwards had no interest in the subsequent proceedings taken by the syndic or the creditors. If there existed fraud and simulation in the matter of the sale, such as would have the effect of annulling the sale, we do not see how this could in any manner work injury to the defendant. It would seem rather to concern the creditors. But none of them are complaining. True, one of them intervened in this suit, but his claims and pretensions were rejected by the court below, and he has not appealed. We think the judgment of the lower court correct. Revised Statutes, page 356, section 1791; Morgan v. His Creditors, 7 L. R. 62.

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

Rehearing refused.


author: Wyly, J.

text:
    No. 2078.
    Bullier, Wife, et al., v. Fritz Huppenbauer.
    A prior mortgage creditor wbo bolds a mortgage which contains the pact de non alienando, may pursue the property in the hands of a third holder without resorting to the dilatory proceeding by an hypothecary action. Therefore, if the junior mortgage creditor has caused the property to be sold, and it fails to bring an amount sufficient to pay tbe prior mortgage, then tho prior mort-gageor, whose mortgage contains tlio pact de non alienando, may proceed by executory process against tho property mortgaged in tho hands of the third possessor without resorting to tho hypothecary action.
    PPEAL from tlie Fiftli District Court, parish of Orleans.
    ¡Beaumont, J. A. ¡Robert, for plaintiff and appellant.

      ¡E. Gambray, for defendant and appellee.
   Wyly, J.

The plaintiffs have appealed from a judgment in favor of the defendant rejecting their petitory action, instituted for the recovery of a lot of ground on the Metairie road, hold and possessed by the defendant.

It appears that the property in dispute belonged to Florentin Berthier, and that the plaintiffs and tho defendant were the holders of special mortgages bearing thereon, the mortgage of the plaintiffs being superior in rank to that of the defendant. It further appears that in 1865 the defendant foreclosed Ms mortgage and purchased the property, retaining the proceeds of the sale in his hands, the price of adjudication to Mm being less than tho amount of the prior special mortgage in favor of the plaintiffs.

It also appears that in 1867 the plaintiffs, foreclosing their mortgage, became the purchasers thereunder of the lot of ground in dispute, and which they now seek to recover possession of.

The defendant contends that having a prima faeie title, it could only be attacked by a direct action for the nullity which the plaintiffs contend it contains, by reason of the adjudication to Mm, the junior mortgage creditor, for a sum less than the amount of the prior special mortgage in favor of the plaintiffs; that the nullity complained of by the plaintiffs should have been asserted in a direct action, or they should have resorted to an hypothecary action against him

It is unnecessary to consider whether the sale to the defendant was regular or not; whether the adjudication to him. at a sum less than the amount of the prior special mortgage in favor of the plaintiffs, was a relative or absolute nullity.

The right of the plaintiffs to seize the property and subject it to their prior special mortgage, without regarding the defendant’s title or without an hypothecary proceeding, is a right which they had by virtue of their prior mortgage, which contained the pact do non alien-undo. With this clause in their mortgage, they had the right to enforce it on the property in the bauds of the defendant, the third possessor, without the delay of an hypothecary proceeding.

The adjudication to the plaintiffs under the first mortgage divested the title of the defendant derived from the purchase under the junior mortgage, and invested them with the ownership of the property.

It is therefore ordered that the judgment appealed from be reversed and annulled, and that there be judgment for the plaintiffs, recognizing the validity of their title and requiring tho defendant to deliver to them the possession of the property, and to this end lot a writ of possession issue; lot the defendant pay costs of both courts.