author: Tod», J.

text:
    No. 7731.
    Caroline Gillespie et al. vs. M. H. Twitchell et als.
    The motion to remove tlie case to the Circuit Court of the United States was properly refused for the reasons given in the case of Stafford vs. Twiteheil, 33 An 525, winch are affirmed
    The averments in the petition, that the administration of the Succession of W. 15 Hall was closed, the final account of the administratrix homologated and the property turned over to the heirs, were sufficient for the institution of this suit.
    A tender of the price of sale was not necessary in this case, in which plaintiffs aver they wei c deprived of their property by a fraudulent conspiracy, and that they received no part of the proceeds of the sale.
    This action of nullity was properly brought in the Parish of Bed Biver, which was created after the partition proceedings had taken place, and to which the record of said proceedings was removed from the Parish of De Soto, by law.
    After a succession has been closed by the homologation of the final account of the administrator, and by the judgment putting the heirs in possession, the Court of Probate lias no jurisdiction of a suit in partition, to divide the property between them. The jurisprudence of the State must be considered settled on this point. Be-affirming previous decisions.
    JTo act of the wife, done to confirm or ratify her obligations contracted under the marital influence, can hind her, nnless done after the dissolution of the marriage
    APPEAL from tlie Seventeenth Judicial District Court. Parish of Red, River. Pierson, J.

      J. F. Pierson, for Plaintiffs and Appellees:
    1.Where jurisdiction is wanting ratione materice, the court is bound ex-officio to notice it, and the judgment of a court wanting such jurisdiction will be null. 1 If. S. 200, 703; 3 If. S. 136 j 14 L. 177; 6 B. 365; 11 B,. 77 ; 21 An. 611, 616, 662, 239, 479 ; 26 An. 602.
    2.The investiture of jurisdiction ratione materice, after the institution of the suit, will not efface the nullity. 21 An. 754. The sheriff acting under writ of ft. fa., and the purchaser at a sheriff sale must take notice whether the court had jurisdiction ratione materice. Judicium a non mo judice datum nulliua est momenti. 7 If. S. 2; 6 B. J92; 9 An. 350.
    3.The District Court in 1870 had no jurisdiction ratione materice to partition the property of a succession, such jurisdiction could only be exercised by the Probate Court. Const. 1868, Art. 87 : C. P. 924, §§ 14, 1022 ; 1 An. 228 ; 2 An 151; 22 An. 517; 23 An. 56, 407 ; 22 An. 131; 24 An. 270, 156 ; 27 An. 126 ; 23 An. 212; 28 An. 367.
    4.Succession is also the right by which the heir can take possession. 0. C. 874. Possession signifies both a right and a fact. C. C. 3434. The succession only ceases when the estate has been reduced to possession by the heir. 30 An. 139, 95; 25 An. 335; 24 An. 114; 27 An. 686; 25 An. 143, 221; 26 An. 603, 611; 28 An. 849, 372; 29 An. 412.
    5.It is only those who have received the price, or to whose benefit the price has enured, that are bound to make restitution to the purchaser before suing to reclaim their property. The rule restituo in integrum is founded in the equity, that no man shall enrich himself at the expense of another, and will not extend to a reclaimer of property who has derived no benefit from the parting with it.
    6.Legal rights are to be founded only upon the observance of equitable and legal principles. Those who engage in a collusive conspiracy with the husband to despoil the wife and her minor children of their property, cannot he heard in a court of justice to found any rights in themselves from such conduct. 3Sx twrpi causa non oritur actio. Bank of the U. S. vs. Owens, 2 Pet. 538; Webb vs. Pritchett, 1 B. and P. 264 ; Slidell vs. Pritchard, 5 B-. 106 ; 3 An. 314.
    7.A thing that is absolutely null cannot be ratified. Vacuity can no more be added to, than taken from. Comments of Marcado, vol. 5, p. 90, on Art. 1338. O. If.; C. C. 2272; Decuir vs. Le Jeune, 15 An. 571; il>. 700.

      8. Estoppels do nob apply to married women and minors. 4 An 231; 6 An. 397; 16 An. 213 ; 7 An. 293; 2 An. 757; 13 An. 4; 12 An 852; 14 An. 169; 2 Woods, 151; 23 An. 647; 16 An. 190.

      I. B. Watkins, for Defendants and Appellants:
    1. Of the removal of the cause to the United States Circuit Court. Vide: Removal of Causes, 100 U S. 473; Barney vs. Latham, 103 U. S- 205; Sec 5. of Act March 3d, ld75; Sec. 3 of A ct March 3<1, 1875; Sec. 1 of Act March 3d, 1875, does not apply.

    2. The guardian or the tutor of the minor, had the right to apply for the removal. The appointment of Elizabeth Twitchell, in Vermont, as guardian for the minor, M. H. Twitclicll, was not an absolute nullity. C. C. 250, 253, 266, 263.
    The vaiious petitions for removal show that at the date the minor was attempted to be cited, all the parties defendant resided in Vermont.
    The suit was tried in the District Conrt, contradictorily with the guardian. Vide the agreements of counsel, found in T. Ho. 7731. pp. 32 etscq; 36 et seq; 39 et seq.

    3. The alleged exception on part of the plaintiffs, to the defendants’ petition for removal, inadmissible, and proof thereof should not he received or considered by the District Court, nor by this Conrt. Vide: Taylor vs. Rockfeller, 13 Law Register, 303; Removal of Causes, 10 Otto, 471; 4 H. S. 344 ; 7 La. 394; 14 La. 515; 6 R. 33; 1 H. S. 299.
    On tiie Merits.
    1. If the succession of W. E. Hall had not been fully administered, nor the heirs put in possession, the proper course was for a new administrator to have “been appointed, and the suit entered in his name. King, Administrator, vs. Atkins, 33 A. 1059.
    2. This suit is equivalent to an unconditional acceptance of the father’s succession by the heirs; and its effect relates back to the date of his death. Glasscock vs. Clark, 33 A. 585; C. C. 987; 977 etseq.

    3. The heir of a deceased person being considered seized of his succession from the moment of its being opened, the right of possession which the deceased would have had if the com - munity had been dissolved by judgment vested, and continued in the person of the heir, and each heir becomes an undivided proprietor of the effects of their father’s succession.
    Glasscock vs. Clark, 33 A. 585.
    4. A final settlement, and full and complete liquidation of the affairs of the community, or the father’s succession not necessary to entitle the heir to take possession thereof. Glassock vs. Clark, 33 A. 585.
    This diversion specifically overruled the rulings of the Ludeling Court, found in 25 A. 379 j 27 A. 634. On these, plaintiff’s action was founded.
    5. But plaintiffs, in their petition and briefs, admit that the succession of W. E. Hall, had been liquidated and all of its debts paid. Vide T. Ho. 7348, p. 145; Vide plaintiffs’ original brief, pp. 51, 52. 22.
    6. When the heirs take possession the succession is closed. 30 A. 139; 25 A. 335; 30 A. 95 j 27 A. 686 ; 24 A. 114; 25 A. 143, 221; 26 A. 603, 611; 28 A. 349, 372 ; 29 A. 442.
    7. That the District Court of De Soto Parish had constitutional jurisdiction to grant the decree for a partition of the lands belonging to the former community of W. E. and Caro* lino Hall, and between the widow Caroline and the Hall minors, we regard as conclusively settled in the following cases: 33 A. 51, Life Association of America vs. Hall; 30 A. 177, Boutte vs. Boutte; 31 A. 574, Buddecke vs. Buddecke; 12 La. 214, Henry vs..Keys.
    S. Of good faith. Robert vs. Brovn, 14 A. 598; G C. 503; 11 M. 675; 7 H. S. 358; 6 R. 438; 2 A. 347; 5 A. 380.
    9. Bad faith possessors are entitled to necessary expenses for the preservation of the property, and to a proper adjustment of their claims for constructions and improvements. Heirs of Wood vs. Hicholls, 33 A. 751; Heirs of Self vs. Taylor, 33 A. 769; C. G 508, 2413.
   The opinion of the Court was delivered by

Tod», J.

Tire facts connected with this controversy, about which there is no dispute, are substantially as follows:

W. E. Hall, the first husband of the plaintiff, Caroline. Gillespie, died in the year 1862, leaving a plantation and other property belonging to the community between him and his surviving spouse and three minor children, issue of the marriage. The widow qualified as administratrix of the succession, and the administration was closed in 1870, by the homologation of the final account.

• In 1868, the widow contracted a second marriage with one Charles Gillespie. On the 1st of February, 1870, a few days after the homologation of the final account of said succession, a suit was instituted in in the District Court of the Parish of DeSoto, in the name of Mrs. Gillespie, against her minor children, represented by a tutor, who had been appointed to them after the second marriage of their mother, having for its object the partition of the plantation and other property belonging to the community between W. E. Hall, deceased, and his surviving wife, then Mrs. Gillespie, as stated, and also for the recovery of $12,700, the alleged indebtedness of the community to Mrs. Gillespie. Judgment was rendered in this suit, ordering the sale of the plantation which was known as the Starlight Plantation,” to effect the partition, and recognizing the plaintiff therein a creditor of said community for the amount stated, which was ordered paid out of the proceeds of the sale. Under this judgment, the plantation was sold on the 30th of April, 1870, at sheriff’s sale, for $21,000, one-third cash, and the balance in two equal annual instalments, as declared in the sheriff’s deed, and M. H. Twitchell, one of the defendants in the present suit, became the purchaser. Twitchell took possession of the property, and on the 2d of February 1877,.conveyed the same, by act passed in New Orleans, to his mother, Mrs. Elizabeth Twitchell, then a resident of the State of Vermont; and since the institution of this suit, the property has been sold under judgments against M. H. Twitchell and Elizabeth Twitchell, and bought in by other parties.

On the 1st of November, 1877, the present action wasbrouglitby Mrs. Gillespie and her children against M. H. Twitchell and Mrs. Elizabeth Twitchell, to have the judgment of partition, referred to, and the proceedings connected therewith, and the sheriff’s sale of the Starlight Plantation declared null, and to cause themselves to be restored to the possession of the property and to have the conveyance or transfer by M. H. Twitchell to Mrs Elizabeth Twitchell decreed a simulation.

The grounds of nullity urged by the plaintiff against the proceedings in question, are, substantially, that the District Court of DeSoto, that rendered the judgment under which the property ivas sold, was-ivithout jurisdiction ratione materia, and that the said suit, proceedings and sale, were had and conducted without their knowledge and consent, and were the result of a fraudulent conspiracy between Charles K. Gillespie, the husband of Caroline Gillespie, and the step-father of her children, and the said Twitchell, to rob them of their property, and enrich themselves by an act of flagrant spoliation, and that said Twitchell had placed the title to the property in his mother, an impecunious person and a resident of another State, by a simulated transfer, for the purpose of investing the federal courts with a fictitious jurisdiction, and to avoid or impede an action by the petitioners to annul the fraudulent proceedings and recover their property.

The defendants appeared and filed a motion to remove the cause to the Circuit Court of the United States, which was overruled. They then filed the following exceptions:

1. That plaintiffs’ petition discloses no cause of action, in this, that the children and heirs of Win. E. Hall, deceased, sue for the recovery of their interest in certain community property, without alleging that the community had been settled ; that all the debts thereof had been paid ■, that anything remained after the debts.

2. That Caroline Gillespie, one of the plaintiffs in this suit, was also plaintiff in suit 2926, in which there was a judgment rendered in her favor and against the minors for $12,700, and accruing interest, and that this judgment was paid out of the proceeds of the sale sought to be annulled, and she has thereby acquiesced in said suit, judgment and sale.

3. That the $21,000, purchase price of this land, was paid to Caroline Bryan, and J. D. Wemple, tutor for Hall minors. The minors are equitably estopped from setting up the nullity of said sale •, their right of action is on the tutor’s bond, and not against the property.

4. That plaintiffs have never refunded the purchase price of said land, nor any part thereof, nor have they made any legal tender thereof; and they cannot sue to annul said sale until they have repaid the purchase price or made a tender thereof.

5. That plaintiffs are the warrantors of the title to M. H. Twitchell, and for that reason cannot assail it.

6. That plaintiffs cannot sue to annul a sale without alleging and showing injury.

7. That a suit to annul a judgment must be brought in the parish where it was rendered. In this case suit was brought in Red River to annul a judgment rendered in DeSoto Parish.

8. That at the date of sheriff Carr’s sale to M. H. Twitchell, 30th of April, 1870, Della Coleman, M. H. Twitchell’s first wife, was then living, and by whom he had one child, now living, and a citizen of Vermont, and a minor, and that since said sale the mother has died, and through whom said minor inherited an undivided one-half interest in this land and improvements, and that minor is not mado a party to this suit.

9. That plaintiff’s petition discloses no cause of action as to Mrs. Elizabeth Twitchell, because she purchased in good faith from M. H. Twitohell, by an authentic title, on 17th of April, 1877, for a fair price cash, and upon the faith of M. II. Twitchell’s previously recorded title and possession under it.

These exceptions were “referred to the merits without prejudice."

The answer amounts substantially to a general and special denial of the allegations of the petition, with a reconventional demand for improvements and pleas of prescription. There was a judgment in favor of the children and heirs of Wm. E. Hall, to the extent of an undivided half of the property, and rejecting the demand of Mrs. Gillespie, from which she (Mrs. Gillespie) and the defendants appealed. This appeal came up before our immediate predecessors, and the 8th exception to the action above set forth, 'relating to the intei’ests of a minor child of Twitchell in the suit, not made party thereto, was sustained, and the case remanded. After the remanding, the omission referred to was supplied, the case again tried, a similar judgment rendered, and both parties have again appealed.

,1. The first question presented for our consideration is the motion for the removal of the cause to the federal courts.

This question, under a very similar state of facts and pleadings, was before this Court in the case of Stafford vs. Twitchell et al., 33 A. 525, being the same defendants as in the instant case. That was a suit to annul a tax sale of certain lands bought at such sale by M. H. Twitchell and subsequently conveyed to his mother, Mrs. Elizabeth Twitchell, as in this case. The motion for removal was made on the same grounds and for the same reasons, as contained in the present motion before us. We held, for the reasons given at length in that case, that the motion was properly refused. Those reasons, when applied to the instant case, are strengthened by a feature in this case which did not exist in that, and that is, the charge that the sale from M. H. Twitchell to Mrs. E. Twitchell, of the lands in controversy, was a pure simulation, presenting an issue that could not be determined unless both were parties to the suit. It is unncessary to reproduce or reiterate the reasons given for our conclusions in that case, it is sufficient to say that they are strictly applicable to the present motion, and that we re-aflinn them, and refer to them as constituting the grounds of our concurrence with the ruling of the Jiidge a quo in denying the motion in this case.

■ 2. As to the exceptions, a careful consideration of them satisfies us they are without force. The petition alleges that the administration of W. E. Hall’s succession had been closed, the final account of the administratrix filed and homologated, and the property turned over to the heirs; those allegations sufficiently show that the debts of the community had been paid, if such allegations were necessary in an action of this hind, about which we express no opinion. The 2d, 3d, 1th and 5th exceptions arc based on the theory that the suit is to annul a judgment and the proceedings under it, on account of mere irregularities, and that the plaintiffs had been the beneficiaries of these proceedings, and had incurred obligations to make restitution, whereas the averments of the petition charged that these proceedings had been instituted under a conspiracy to defraud them, and had been conducted without their knowledge or consent, and that they had received no part of the proceeds of the alleged sale. Admitting the truth of those allegations, plaintiffs could not be affected by the proceedings and were not obliged to make any tender before bringing the suit.

The action of nullity was properly brought in Red River Parish. This Parish had been created after the partition proceedings had taken place and the, record of those proceedings had been removed from the Parish of DeSoto, where they had been conducted, to the Parish of Red River, which latter Parish embraced that part of DeSoto where the principal parties to the proceedings resided at the time they were pending, and their residence when the present suit was brought. See Act of 1871, p. 86; Act of 1873, p. 142. The rest of the exceptions require no special notice. They were properly overruled.

On the Merits.

1. Tlie first question presented for our consideration on the merits, is whether the proceedings in the suit 2926, for the partition and sale of the Starlight Plantation, the property in controversy, was null, for want of jurisdiction in the District Court of DeSoto Parish, where the proceedings were had and the judgment rendered.

This was a suit instituted, as is^stated, by the surviving partner in community against the heirs of the deceased partner for a partition oftlie community property. The suit was brought after a final account of administration of the succession had been filed and homologated, and the property to be divided ordered, in the judgment homologating the account, to be turned over to the surviving partner in the community and the heirs of the deceased. The question presented, were it a new one, would not be free from difficulty, and the argument of plaintiffs’ counsel to the effect that the Probate Court alone could entertain jurisdiction of such a proceeding would possess great weight, and might reasonably induce the conclusion in the judicial mind of the correctness of the proposition. The question, howevfer, is not a new one, and whatever may be our views of the decisions which oppose such a conclusion, the jurisprudence on this point may now be considered settled, and settled adversely to the position held by the plaintiffs’ counsel. Frequent decisions have established that the jurisdiction of such cases, under the conditions stated, is not in the Probate Courts, but in courts of ordinary jurisdiction. Gage vs. Price, 30 A. 93; Boutte vs. Boutte, 30 A. 177; Buddecke vs. Buddecke, 31 A. 572.

This ground of nullity to the proceedings in question we cannot, for these reasons sustain, and we will therefore proceed to tire consideration of the question of fraud, collusion, etc., set up and charged as sufficient in themselves to avoid the proceedings complained of.

2. At the second marriage of the plaintiff, Mrs. Gillespie, and when her administration of her first husband’s estate was closed in 1870, she and her minor children were the owners of a valuable plantation and other property, sufficient to have insured them comfortable maintenance, and support. In a few months afterwards, they found themselves stripped of all they possessed, turned out of their home, reduced to comparative destitution, and at the time of bringing- this suit, dependent for their subsistence on a few acres of land given them by a charitable neighbor. If these changes of condition were the results of their own acts or the acts of their legal representatives, or were brought about by the proper judicial proceedings to which they were parties, personally or through parties authorized to act for them, then, deplorable as these changes and vicissitudes may appear, they have no legal grounds for complaint. On the other hand, those who claim that sue,If valuable “rights of the plaintiff have been transmitted to them by-virtue of their acts, or of legal proceedings, can only be secure in their acquisitions, if these acts or proceedings relied on are found, after a close judicial scrutiny, to be under the sanction and protection of the law.”

The evidence is voluminous and conflicting, and has been thoroughly-examined and weighed, and from this examination and study we have derived the following conclusions as to the facts bearing on this controversy.

When the administration of the succession of W. E, Hall, the first husband and father, respectively, of the plaintiffs, was closed, there were no debts resting- on the property, and no good reason existed, so far as we have been able to discover, why the interest of the mother in the property should be sold, or any different investment made of the means of her minor children.

Yet, two days after the settlement of the succession and the homologation of the account of administration, proceedings were instituted and rapidly pressed, as if it was an occasion of great urgency, to procure n salo of this valuable property, upon which, the mother and children had so long had their home, a home established by the mother and her deceased husband, improved and made comfortable by their joint labor, and where their children were born. This proceeding was instituted at the instance of C. K. Gillespie, the second husband and step-father, the wife and mother being in entire ignorance of the step taken. When the attorney consulted desired an authorization from her, Gillespie produced a note purporting to be written by his .wife, but which, she swears, she never wrote or signed, and which, wo believe, was forged by him. At the request of Gillespie, one member of the law firm consulted, consented, and so far as the record shows, without the knowledge of the mother, to become the tutor of tlie children, although the mother had the right to such appointment, notwithstanding she may have at one time forfeited the tutorship by her second marriage, without taking the required steps to be continued in it previous to the marriage. The attorney who instituted this suit of partition, by means of which the plaintiffs were to be despoiled of their projierty, as a witness in the case thus speaks of the man at whose instance the proceeding was inaugurated: “I know nothing about Gillespie’s character as a husband, except, from common report, and that was, that he was unkind, unjust and cruel, and that he was sedulously endeavoring for years to swallow up her fortune.” With the evident design to absorb as much of the proceeds of the projected sale for his wife, at the expense of the children, and thus put these proceeds under his immediate control, the mother was made to sue her children for $12,700, to be paid out of the proceeds of the property, a claim which was embodied and prosecuted in the partition suit, and which the mother swears the children did not owe her, and which her account of administration, previously homologated, shows to have been false and fictitious, as all her claims against her first husband’s estate were settled in that account. Yet the minors were not only sued for this amount, but judgment rendered against them for nearly the entire sum.

■ Certain events which had transpired previous to the bringing of this partition suit, afford the clue by which we can fully discover its purpose and the reason of the haste with which it was rushed through. In fact, the property had already been sold, as .far as the power and will of Gillespie could accomplish a sale of it, and a delivery of it made before the suit for its formal sale was begun. The purchaser at this sale made by Gillespie, or, perhaps, to express it more literally, agreement to sell, was M. H. Twitchell, one of the defendants in this suit, who subsequently became the adjudicates at tho sheriff’s sale of the property. The evidence satisfies us that Twitchell, in furtherance of his desire to acquire the property at .wliat he doubtless considered .an advantageous bargain, lent himself fully to the scheme by which, through color of legal proceedings, the property was to become his, and with the full knowledge that Mrs. Gillespie was unwilling to sell her and her children’s property, and had resisted the coercion of her husband to make her consent thereto, and had declared to Twitehell himself her refusal to consent: We have the testimony of Twitehell against this, who swears that he had the written consent of Mrs. Gillespie to this sale; but this assertion is proven to be false, not only by this lady and. another person present at the time, hut also by one of his own witnesses, and the witness he failed to produce on the trial. The true facts relating to the negotiation between Gillespie and Twitehell, for the sale of the property, as we gather from a close study of the evidence on this point, which, as intimated, is conflicting, we believe to be these: Twitehell made a proposition to Gillespie to buy the place, and after some discussion between them, the proposition was accepted and the price and terms agreed on. It was then deemed necessary that the consent of Mrs. Gillespie should be obtained. Gillespie undertook to obtain this consent, and for that purpose went into his wife’s room, and after quite a lengthy and stormy interview, came hack again into the parlor and declared to one of the persons present, with an oath, and a vile epithet applied to his wife, that she had refused to consent to the sale. A whispered conversation then took place between Gillespie and Twitehell, and the latter though an entire stranger to the lady, boldly invaded the privacy of her bedchamber with a view to induce or extort a consent to the joint scheme of Gillespie and himself for the sale of the property. He too was foiled, and then the two schemers contented themselves with a writing signed alone by themselves, by which they undertook to do what they had both declared to Mrs. Gillespie could he done; make the sale without her signature, that is against her will. The details of these conversations with her husband and Twitehell are given in evidence by Mrs. Gillespie, who was a witness in the case, and presents the plain, unvarnished story of how a wife, who for years had been the victim of abuse, cruel treatment and tyranny on the part of a brutal husband, exercised at the same time over her oiqflian children, resisted both the threats and imprecations of the husband, and the oily and persuasive inducements held out by his more discreet ally, in what she conceived to he an attempt to despoil- her and her children of their heritage. Under this unhallowed agreement between them, Twitehell was put into immediate possession of the property, and the proceedings were then instituted and conducted, as related above, for the formal sale and adjudication of the property. They were conducted with the evident concurrence of the person appointed at the request of Gillespie to represent his minor step-children, and judgment was rendered ordering the sale of the property, and condemning the children to pay their mother the large sum mentioned above out of the proceeds of the sale. It was, in one sense of the word, a consent judgment — not a consent, it is true, by the parties to the suit really interested, or to be affected by the proceedings, but on the part of those conducting the proceedings in their names for their own purposes. During the pendency of these proceedings, Gillespie had his eye on a neighboring plantation which he wanted to buy with the assistance of Twitchell, and with the money he was to receive for the plantation of Iris wife <and her children. This part of his scheme was carried out, and he made a contract which was virtually a contract of sale, with the owners of this plantation, known as the Turner heirs, and this contract was attested by Twitchell, as a witness. It stipulated that a title to this property was to be made to Gillespie, upon the payment of a certain amount in cash and Gillespie’s notes for the balance of the purchase x>rice. In pursuance of this contract after the sale of the Starlight Plantation and its adjudication to Twitchell, he x>aid the cash required by the terms of the sale, not to the sheriff who made the sale, nor to Mrs. Gillesx>ie and her children, to whom the property belonged, but to the Turner heirs, to meet the obligation of Gillesx>ie for the cash x>ayment he was to make them for the x>lantation bought of them as stated, and it was doubtless understood by Twitchell at the time he witnessed the contract for the sale of this x>roperty, that Gillespie, was to use the money realized from the sale of the Starlight Plantation, to pay for the plantation bought by Gillesx>ie of the Turner heirs. The formal deed to the plantation was made to Gillespie and Mrs. Gillespie, but this gave the latter no more rights in the property than if the title had been made to Gillesx>ie alone, in conformity to the original agreement. And the evidence shows that subsequently another x>ayment was made to the Turner heirs for Gillesxñe, with the money paid by Twitchell to the tutor ax>pointed to the children for the purposes of the partition sale.

After the adjudication of the Starlight Plantation to Twitchell, Mrs. Gillesx>ie was compelled, as she states in her testimony, to quit the X>lace under a threat of being put off by the sheriff. She subsequently-went to the plantation bought of the Turner heirs by Gillesxne, and after remaining there about a year, was abandoned by her husband, who received the revenues of the property and left the x>lace to be sold for the unx>aid part or the price, and went to parts unknown, and the purchaser at this last sale charitably bestowed on Mrs. Gillespie and her children, a few acres of land on another place, which afforded them a shelter and a scanty subsistence, and where they seem to have remained up to the time of the institution of this suit.

Prom the conclusions we have formed of the facts of this case,' as we have detailed them above, it is clear that the rights of plaintiffs to the property ill controversy were not destroyed or divested by these proceedings, to which, under the evidence, wo are bound to regard them as strangers. The conviction is firm in our minds that the proceedings were planned by Gillespie to defraud his wife and her children of the property, and to acquire the same, or its proceeds, for his own use and enjoyment. 'That it was a scheme of pure spoliation, devised by him, and to which Twitchell lent himself as a willing and efficient coadjutor. Believing this, it would require very strong proof to satisfy ns, that the wife had so approved and ratified this outrage upon the rights of herself and children, as to make the scheme successful, and forever preclude them from attacking it. Of course, so far as relates to the minors’ interests, no acts of their mother could cure the fraudulent and illegal alienation of their property. The question recurs, has Mrs. Gillespie, by her acts, or otherwise, ratified the sale of her property and debarred herself from recovering if? The counsel for defendants insists she has dono so, and relies mainly on her signing a- receipt for the cash payment made by Twitchell on the Starlight Plantation, and her judicial declarations, subsequently made in a suit brought by her against her husband for a divorce, in which a claim was preferred against him for monoys realized from the sale of her property.

In regard to’ the cash payment, wo have stated, that in point of fact, the money was not paid to her, either by the sheriff, to whom the receipt was given, or by Twitchell, birt was paid by the latter to the Turner heirs fpr Gillespie, on the price of tho place purchased from them, and the receipt was signed, at the very time this payment was made, in tho presence of her husband; and she states, on oath, that she signed without reading it, and further, that she believed, at the time, that it was a paper connected with the purchase of tho Turner Plantation, and not with the sale of Starlight Plantation, a statement which seems reasonable and in consonance with the facts attending this transaction.

Besides, even were it otherwise, the wife, at that time, was under marital influence, which, as the testimony shows, had been harshly and even cruelly exercised. It is shown that she had good cause to dread and fear him, her husband, and that he even used violence towards her, and had been arrested on account of it. In the case of Decuir vs. Lejeune, 15 A. 569, a case very similar in many respects to the instant one, the Court used this language: “ When Ovide Lejeune and Margaret C. Decuir started in life, nearly the whole property belonged to her. After the lapse of a few years the whole estate is absorbed by the husband. * * * Such a result is a spoliation, unless the plaintiff has knowingly and willingly made a sacrifice of her rights, aud before fastening this loss upon her, it is but natural that the Court should require cogent evidence as to a voluntary execution on her part, within the intendment of the ' Code. The only ground upon which the plaintiff can be cast is that of confirmation or ratification on her part since the dissolution of their marriage. It is evident no acts of the'mfeprevious to that event can hare that effect.” See also 2 A. 213 ; 7 A. 293 ; 16 A. 213.

The marriage in this case has never been dissolved. A suit for divorce was instituted by the wife, but was never prosecuted to a judgment. In that suit the counsel bringing it, who were the same engaged in the partition suit, claimed judgment for moneys spent by Gillespie in the purchase from the Turner heirs, but Mrs. Gillespie swears, that she knew of and authorized no other suit or demand than a simple divorce, and it is highly probable that these attorneys, being familiar with the previous proceedings connected with the receipt of this money by Gillespie, might have thought proper to include such a money demand in the divorce suit, on their own motion. Had those proceedings been authorized bjr her, then the indebtedness of Gillespie to his wife would have existed, and the monied demand in the divorcosnit a proper one. A^the time this divorce suit was brought, Mrs. Gillespie had been driven from her home; had been robbed of her property by her husband, and then abandoned by him and left with her children in almost absolute destitution ; and if in her perplexity and distress she sought the advice of counsel, and they, with or without her knowledge, tried to save something for her and her children out of the wreck of the property standing in Ms name and liable for his debts, it would be an unwarrantable stretch of the laws bearing on this point, that such simple acts on the part of a married woman, under such circumstances, sanctioned and ratified and made good the frauds and spoliation by which, without her knowledge and consent, she had been stripped of all her earthly goods and possessions. It would be a perversion of the law so to conclude. The evidence fails to show that either Mrs. Gillespie or her children ever received one dollar from the sale of their property; and in view of this, their alleged liability to Twitcbell, so gravely urged, to tender restitution of the amounts he paid out for the property —not to them, but to one or for one he was assisting in despoiling them, seems to us out of reason. They received nothing, and they have nothing to restore or offer to restore.

Another question for us to consider, is that relating to the alleged simulation of the sale from M. H. Twitcbell to his mother, Mrs. Elizabeth Twitcbell, co-defendant in the case.

The plantation in question purports to have been bought by Twitchell for $21,000, and he claims to have put improvements on it more than ten thousand dollars in value, and then sells it for $7,500 ; $1,000 of that amount cash and the balance in worthless Parish bonds and warrants, and known to be worthless at tho time of the sale, and had boen so judicially declared! These bonds had once been issued to, or belonged to Twitch ell, and now purported to be tho property of his mother in the distant State of Vermont, and who was there at tho time of the alleged sale, which was passed in Louisiana, and who states, in her testimony taken under commission, that she owned in property and money only one thousand dollars/and that was in the hands of lier son, in Louisiana, (M. H. Twitcliell) and that she owned nothing in Vermont. Comment is useless. The simulation was one of the baldest!

As to the subject of improvements, which are claimed in reconvention, we find that there is no satisfactory proof as to their value.

. Besides, there is no demand in the plaintiffs’ petition for the rents and revenues of tho property during the time they have been deprived of the possession of tho same, and under these circumstances we deem it proper that these questions should be settled in another suit, and wo shall reserve this right to the parties.

It is only necessary to add, in conclusion, that the prescription pleaded under the facts of this case, is not applicable and is without force.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court, so far as it is in favor of the plaintiffs, the heirs of Wm. E. Hall, deceased, and against the defendants, is affirmed, and so far as it rejects the demands of the plaintiff, Mrs. Caroline Gillespie, it is annulled, avoided and reversed, and it is now ordered, adjudged and decreed, that the judgment rendered in the case of Caroline Gillespie vs. J. D. Wemple, tutor, No. 2921, in the District Court of the Parish of DeSoto, on the 17th March, 1870, and the sheriff’s sale under said judgment, on the 30th of April, 1870, of the property in controversy, be, and tho same is hereby declared null.and void.

It is further ordered, adjudged and decreed, that the right, and title of the said plaintiff, in and to one undivided half of the property described in tho petition, be, and the same is recognized, and that she be put in possession of the same, the right of tho plaintiffs’ to the rents and revenues of said property, and of the defendants to recover the value of the improvements, is reserved.

It is further ordered, adjudged and decreed, that the sale of the property from Marshall H. Twitcliell to Elizabeth Twitcliell, of the 2d of February, 1877, be, and tho same is declared simulated, null and void. The costs of both Courts to be paid by the defendants.


source: Caselaw Access Project

author: Poci-ié, J. Bermudez, C. J.

license: Public Domain

text:
    No. 8061.
    Cordelia Terrell vs. J. R. Boarman.
    A defendant, whose exception in a suit for separation from bed and board was tried and over-n>J ed, during his absence from court, and who subsequently files an answer on the merits, without first moving to rescind the ruling of the Court, and to reinstate Ms exception, will be considered on appeal, as having waited all objections to the irregularity of the trial of said exception.
    A charge by the wife, as a ground for separation from bed and board, that her husband had fled from justice when charged with an. infamous offense, is not sustained if the evidence shows that the charge was made after the husband’s departure, and that the husband, on being infoi med of the charge, returned and presented himself for trial, after which he was discharged, and satisfied the claim of the complainant against him.
    The lorbearance of a wife and her patience, enduring the cruel treatment, excesses and outrages of her husband for a long time, before complaining to the courts, must not be confounded with, or construed as condonation or reconciliation, as contemplated in our laws, in bar of the wife’s action for separation from bed and board.
    Charges of an outrageous character made by the defendant, in an answer to a suit for separation, eannot be considered as an element of excesses, or cruel treatment, in favor of plaintiff. The issue must be tendered on acts which have preceded the institution of the suit.
    APPEAL from the Civil District Court, for the Parish of Orleans. J.

      T. Gilmore & Sons, for Plaintiff and Appellee.

      S. S. Carlisle and J. D. Goleman, for Defendant and Appellant:
    Sec. 7, Art. 138, C. C., does not contemplate conferring criminal authority upon the civil tribunals organized under the Constitution of 1868. These tribunals eannot inquire into the guilt or innocence of one charged with a crime. The proofs mentioned in said Section have reference only to the finding of a court of competent jurisdiction, to-wit: a Criminal District Court, Recorder or other committing magistrate. If it is contended that this Article does confer criminal authority on civil courts, it violates Article S3, Constitution of If 68 — is a dead letter, and no action will lie thereunder.
    Exceptions fixed by order of court, must be notified to advise party and reasonable time alallowed. Const. 1879, Art. U, Rules District Court 5 6 IT. S. p. 635; 3 L R. p. 434 ; 2 L. II p. 171; 1 ÜT. S. p. 9; íi L. II p. 577; 9 An. p. 496; 13 An. p. 151.
    The averments inau answer cannot be ue» d as ground woik of plaintiff’s suit, which must stand or fill upon tb 0 state of facts previous to the filing of tlic petition. 9 L. R. p. 457; 2 L. p. 221; 5 An p. 33.
    In suit for divorce under the provisions of Sec. 7, Ait. 138, C. C , when the wife instigntes the criminal charge, and procures the making of a charge against her husband, the law will afford her no relief. This act of the wife is a serious and egregious wrong against the husband, which harsher right to any relief at the hands of the court, eren though the charge might in fact be true. The maxim, Volenti non fit injuria,” here applies as against tlie wife.
    Husbands are mon and not angels; staying out late at nigbt, want of means, failure to support wife and children, trilling outbursts of passion, unaccompanied by violence, gambling, inattenfion, and absence of affection, are not grounds for a separation ft am bed and board, 18 An. 404; 15 An. 593; 27 An. 594; 9 L. 421 ¡ 10 L. 251 ¡ 4 M. 174 ; 5 An. 32; 6 An. 403.
    Reconciliation bars an action for divorce based upon antecedent causes. C. C. Art. 152; 14 An. 386,
    The wife must follow the husband wherever he choses to go, and her failure to do so will not permit her to sue for separation based upon her husband’s absence. Abandonment can only be made to appear by compliance with the provisions of Art. 145, C. C.; 5 N\ S. p. 61; 8 An. p. 14; 14 Au. p. 386.
    The spouses being'specially prohibited by Jaw from testifying against each other, it follow/? that tbeir declarations, statements, etc , to third persons, cannot be considered by the 'Court. That the testimony of a witness of facts, circumstances, or tilings elicited from the spouses, must he disregarded by courts, though admitted without objection, since it is in contravention of a prohibitory law. As the spouses cannot testify, his or her declarations to third persons are inadmissible as testimony, since this would be doiug indirectly that which the law mandates shall not be done directly. C. O.-Art. 2231.
   The opinion of the Court was delivered by.

Poci-ié, J.

Plaintiff sues her husband for separation from bed and board, and urges the following grounds :

' 1. That being charged with the commission of an infamous offense, Of which lie was actually guilty, he liad fled from justice.

2. That during the last years of their married life, her husband had been guilty of excesses, cruel treatment and outrages towards her, of such a nature as to render their living together insupportable.

The case was tried by a jury, who returned a verdict in favor of plaintiff, and defendant appeals.

In a hill of exceptions, defendant complains that an exception which he filed to a second supplemental petition presented by plaintiff, and which was overruled, had not been legally tried, for the reason that he had not been duly notified, according to law and to the rules of the court, of the day fixed for the trial of 1ns said exception.

The record shows that defendant was not represented by counsel, or otherwise, at the trial of his exception, and does not contain satisfactory evidence of a legal and timely sendee of notice of the fixing of the trial of the exception; hut it nowhere appears that defendant urged a seasonable objection to the course therein pursued by the Judge, crashed the court to rescind its ruling, and reinstate his exception for trial. On the contrary, it appears that, without protest or objection, defendant moved to set aside the default which had been taken against .him, and filed an answer to the merits, under which state of facts he must he considered as having waived all objections to the alleged irregularity in the mode of trial of his exception.

The hill of exceptions which he took to the Judge’s course in trying Ms exception, which was signed or obtained only on the 31st of July, 1880, when the trial of the exception had taken place on the 24th of February previous, is not a seasonable objection, and cannot avail him; for his course, in filing au answer, without a preliminary attempt to reinstate his exception, concludes him as having waived the illegality of the proceeding complained of, and debars him at this time from obtaining any relief therefrom.

We see no error in the decree of tlie District Judge in overruling his exception. The ground of complaint urged by plaintiff in her supplemental petition, did not conflict with the ground urged in her original petition. It was merely cumulation. Giraud vs. Mazier, 13 A. 147.

On the merits, this case has been very bitterly contested, and brings up a record full of venom and crimination, following an answer, in which defendant urges many and very serious and grave charges of illcondnct against his wife, a repetition of which is herein omitted through a proper sense of respect and delicacy towards the high social position of both parties, and is unnecessary, by further reason of the total absence of any, or the slightest proof in support of the same, and rendered still more unnecessary', by the fact that, after hurling all these crushing accusations at plaintiff, the defendant urges no plea in reconvention, and simply' prays for the dismissal of her action, under which the marriage ties would not be disturbed and the spouses re-united. This, of itself, is a Ml justification of the wife from such charges, for the introduction, of which, in this case, defendant’s counsel have expressed becoming regret, in their brief as well a.s in oral argument.

1. The evidence in the record fails to establish the first ground pleaded by the wife. It is true, that defendant frequently obtained from friends and acquaintances, the loan of small sums of money, on checks drawn by him on a hank, in which he liad, to his knowledge, no funds or credit to meet the payment of his cheeks, and that for several months previous to his departure for the far West, he had no employment, and no other resource or pecuniary aid but that which he thus obtained, and that feoling that such a state of things could not safely' last much longer, and that, dreading the storm which would sooner or later burst over him, he concluded to remove from a city where he could anticipate nothing but trouble, suffering and annoyance. Yet, we fail to see any evidence in the record sufficient to convict him of the criminal and deliberate intent to commit the offense which was charged against him, and to flee from justice under such charge.

When he left, no charge had been made or was pending against him ; and as soon as he was apprised of the charge which had been instituted during his absence, he forthwith returned to this place, and presented himself for trial under the prosecution, whence he was discharged, after satisfying the claim which the complainant had against him.

Concluding, as we do, that the evidence does not support that portion of the wife’s complaint, we are not called upon to pass upon the bill of exceptions taken by defendant to the Judge’s charge to the jury' on that point, and to the admissibility of certain testimony which was introduced on the same point over defendant’s objections.

2. On the second ground relied upon by plaintiff, we find, in the record, evidence to establish the following facts :

Plaintiff and defendant, who were both. persons of refinement and culture, and both belonging to highly respectable and honorable families, moving in the best circles of society, were married in the year-1871, and established their domicil at the residence of the bride’s fattier, where it has remained ever since, with the interruption of a residence of two months in Chicago, during the year 1876.

At the time of his marriage, defendant was a member of a respectable commercial Ann in this city, which he soon after dissolved, forming a partnership with his father-in-law, as partnerin commendam. After a series of disasters he finally failed, and wound up his commercial business in the year 1875. From that time to this day, he ceased to provide for his wife and two children which had been born unto them, and from that time his conduct towards his wife underwent a great change. In 1876, he removed to Chicago, where he engaged in business, and to which place he caused his wife to join him with his children. But in a short time after this meeting, lie begged his father-in-law to send for his daughter and grandchildren, as the defendant had failed again, and had brought his family to utter destitution and distress, without even the means to pay their living expenses in a strange city. Receiving some pecuniary assistance from the father-in-law, the defendant then left for California, and his wife and the children returned toiler father’s home and support.

In 1878, the defendant returned to New Orleans, destitute of means and without employment, and again fixed his abode with his wife at her parents’ home in this city.

In addition to his reduced condition, and want of steady employment, he then became the victim of an insatiable passion for gambling, to satisfy which, he neglected all his duties to his wife and children, and resorted to schemes and devices, some of which are hereinabove related, in order to raise the money necessary to satisfy his infatuation for that vice. It is shown by the evidence that under the pressure of that dire passion and of other evil influences, lie became irritable towards bis wife and children, whom he utterly neglected, and whom he never heeded hut to abuse and tyrannize. He was never with thorn in the daytime, entered late at nig-ht every night for months, compelled lids wife, in the cold nights and even in sickness, to get up so as to let him in, and if she dared to remonstrate against his conduct, he abused and cursed her, threatened her with bodily harm, became enraged and furious, and made night hideous with his quarrels and brawls, and all this in ahouse which was not Ms, in a home not furnished by him, and under a roof where he was tolerated only for the sake of her whose feelings lie crushed, whose love he spurned, and whose devotion he contemned. Her appeals for peace were night after night met with imprecations and threats of violence and degradation; her remonstrances in the name of their common offspring, or of her parents, whose generosity and hospitality he thus abused, drew from him the vilest and most opprobrious epithets.

Considering that she was a lady of refinement and culture, reared and brought, up with delicacy and elegance, it is not a violent presumption to conclude that such conduct, such excesses, and such outrages, on the part of her husband, rendered her life with him unbearable, and a burden which she could not have endured much longer, had he not relieved her by another departure, which occurred in March, 1879, since which time the two spouses have never met.

In determining the nature of excesses or cruel treatment of one of the spouses towards the other, and the degree at which such conduct renders their living together insupjiortable, a proper regard must be had to their respective characters, to their education and habits.

Language and conduct, quarrels and wrangling, which, to certain women, would create no special uneasiness or create no great distress, would be crushing to ladies of education, refinement and culture, whose, feelings would thereby be hurt, even unto incurable misery and despondency.

Applying, under the light of our jurisprudence to the plaintiff in this case, the facts disclosed by the record, which we have carefully analyzed, we cannot escape the conclusion that defendant’s conduct, characterized for more than twelve months by neglect of his wife, indifference to her affection and devotion, followed by cruel and harsh treatment, the result of constant excesses of dissipation, culminating in ever recurring scenes of violent quarrels, crowned by foul and opprobrious epithets daily heaped upon her, was more than she could bear, and that to turn a deaf ear to her appeals to the courts for redress, would be to condemn her to an untimely grave, as a victim of despair, and a heart-broken wife whose love would be unrequited^ and whose devotion to her husband would be her fatal torture.

We know, and duly consider that the laws of Louisiana do not favor the separation of two persons who have been made one under the laws of Hod and of the State; and that our jurisprudence does not sanction the rupture of the sacred ties of marriage for trivial causes, or for mutual wrongs of the two spouses; but the intolerable sufferings of a faithful wife, caused by the excesses of an erring husband, speak in a voice which must open to her relief the doors of the courts of justice, and must summon to her aid the protecting shield of the law. We therefore conclude that the jury, by their verdict, in separating these spouses and placing these minor children under the care of their mother, whose virtues will safely guide them, and whose patient sufferings will teach them lessons of wisdom, have done justice to the parties.

Defendant’s counsel earnestly argued that the excesses of the husband, if any are proven, have been fully pardoned and forgiven by his wife, who continued to live in conjugal union with her husband until his final departure in 1879.

But we hold that the forbearance of a wife, and her patience in bearing with the cruel treatment of her husband, in the fond hope of his reform, and of his being restored to her as a kind husband, and to her children as an affectionate father, until at last she sees that all hope is lost, must not be confounded with, or construed as condonation or reconciliation, as contemplated in our laws and expounded in our jurisprudence.

In our consideration of the second ground of the wife’s complaint, we have confined our investigation to the evidence of facts and incidents only which have occurred since the spring of 1878, at which time the defendant returned to this city from California.

Defendant also complains of that part of the Judge’s charge to the jury in which he used the following language:

The jury, in passing upon these questions, may consider whether the charges in the defendant’s answer constitute a part of such outrages and ill-treatment,” as render the living of the spouses together intolerable. We agree with defendant’s counsel, and hold that such a charge was erroneous, and should not. have been given to the jury.

The issue, as made by the pleadings, contemplates only acts which have preceded the institution of the suit, and a fortiori cannot embrace, as grounds for separation, either the allegations of plaintiff or the averments urged by the defendant. Tourné vs. Tourné, 9 L. 457; Homes vs. Carrier, 16 A. 94; Daunoy vs. Hernandez, 33 A., not yet reported.

But, as the whole case is before us, and all the facts disclosed by the record are subject to our review and analysis, we are notfortliat reason compelled to remand the case for a new trial, and we are authorized to reach our own conclusion, eliminating all irrelevant evidence, and resting our conclusions upon legal testimony, which is ample in the record to sustain the verdict Of the jury. Vredenburgh et al. vs. Behan et al., 33 A. 627.'

Under this view of the case, a review of the Judge’s ex parte order, in granting to the mother the custody of the children during the pendency of the suit, is unnecessary and barren of any practical result, and' we are spared the trouble of passing upon the bill of exceptions taken thereto by the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be affirmed at appellant’s costs.

On Application for Rehearing.

The opinion of the Court was delivered by

Bermudez, C. J.

The correctness of the judgment rendered in this case is assailed on three different grounds:

The Court is charged with error:

1. In not remanding the cause for a trial, after legal notice of the exceptions filed by the defendant to the supplemental petition of plaintiff.

2. In not remanding the cause for a trial on the merits, because of illegal charge given by the Judge to the jury.

3. In considering as proved, facts which the evidence in the record does not establish.

L

The exception was fixed for trial for the 24th of February, 1880, at 11 o’clock, a. m., by motion made in open court, on the 20th of the same month. The sheriff’s return shows that a notice of trial was served on the first named day, but it does not give the hour. The brief of defendant’s counsel admits that the notice was served, at the office of one of them on the same morning, but is silent as to the time of day. It is therefore clear that, on the 24th, in the morning, knowledge of the fixing of the exception had been legally communicated to the counsel. The record does not show that any motion was made .on that day, questioning the regularity of the trial, or the correctness of the ruling made dismissing the exception. On the following day, the 25th, counsel for plaintiff moved for a default, which was granted. Neither do the minutes of that day, nor those of the 26th, nor those of the 27th, or of the 28th, show the taking of any rule to set aside the default and to reinstate the exception for want of timely notice. On the third judicial day following that on which the default was rendered, and hence, on the fourth after the overruling of the exception, instead of protesting against the double action of the Judge, so vehemently charged with illegality, the defendant, by counsel appeared into court and moved to set the default aside, which was accordingly done, on his filing an answer to the supplemental petition, an answer which covers ten pages of the transcript, and which contains charges the more scandalous and outrageou's, as they are, altogether unsupported by any evidence, and stain the record of the case, to the actually avowed mortification of counsel.

The case came up for trial on its merits on the 17th of June. It progressed on the 18th, and on the 19th, when the jury, after a short absence, returned a verdict in favor of plaintiff, with a right to the custody of the children. The court, satisfied with the verdict, rendered judgment upon it accordingly, which, after a fruitless attempt for a new trial, was signed on the 1st of July following.

Thirty days later, viz : on the 31st of July, defendant’s counsel j>resented to the District Judge a bill of exception for signature, in which tho facts appearing of record are stated.

This proceeding, which' was submitted to opposite counsel, does not show that the counsel interposed any objection to the trial of the exception, either before or after it was disposed of, previous to joining issue.

We agree with counsel for defendant, that this bill was ontirely sirperfluous for the purposes for which it was taken, as it was a mere repetition of facts disclosed by the record. Had it been proposed to show seasonable objection to such trial, touching which tho record is reticent, it might have been a useful proceeding. It could produce, and has had no legal effect, save to show that no objection was made to the trial so much complained of.

We agree likewise with the same counsel, that on appeal, the ruling of the Judge dismissing the exception, without timely service of a notice of trial, might have been successfully assailed, but in two instances only, however, the first, if the exception had been one of merit, the second, if the defendant had not acquiesced in the time of trial, by filing an unguarded answer, and by moving to set aside the default.

In this case, in the absence of a rule to reinstate tho exception and of any defense in this Court of the exception on its merits, we were bound to consider that the mode of trial had been acquiesced in, and that the exception had been abandoned. We therefore did not err in refusing to set aside the ruling dismissing the exception, and to remand the case for a new trial of that preliminary defense.

II.

The next complaint is, that because of tho illegal charge given by the Judge to the jury, the case should have been sent back.

We might have abstained from expressing any opinion, however correct it be, on the legality or illegality of the charge in question, as that question had not been submitted to our consideration, in the manner and form pointed out by law, but had been brought to our notice by an irregular and vicious proceeding.

The well established rule of civil practice is, that the party who objects to the ekarge, in whole or in part, given by the Judge to the jury, must do so before the cause is submitted to, and is in the hands of the jury. Where this is not done, the law infers an acquiescence, which operates as a bar to a subsequent agitation of the correctness of the charge.

This rule was not followed in the present instance. The record is absolutely reticent on the subject. The only objections which appear to have been made, are such as are found in the motion for a new trial and in a bill of exception filed on the 31st of July, some forty days after the charge was given, which does not allege that such bill was, at the time, reserved to such charge ; which does not show that it was previously submitted to opposite counsel or was read in open court in the presence of such counsel. Rills thus taken and presented, are not entitled to consideration by the Appellate Court, and the errors complained of therein cannot be reviewed.

III.

The third and last charge of error is, that this Court has considered as proved, facts which were not established on the trial of the case.

We have taken the pains of again wading through the 290 pages of this transcript. We have weighed all the testimony adduced. We have relieved the defendant from the first grave charge imputed against him, but have considered, with the jnry and with the District Judge, who endorsed their verdict, and who refused a new trial, that under the deplorable circumstances elicited and the law controlling the ease, the plaintiff was entitled to the relief for which she was craving and which had been allowed her.

In passing upon questions of such intense delicacy as have been raised and submitted in this unfortunate controversy, we .are happily not actuated by the violent feelings of sjmipathy which too frequently cloud the intelligence of counsel.

In the brief presented in this case for the defendant, we have been compelled to observe a forgetfulness of those rules of propriety and deference which a proper appreciation of the relations between court and counsel requires the latter to observe when they address those who are bound, by solemn obligations, to administer justice with impartiality and to the best of their knowledge and ability.

We are actuated by no pride of opinion, and are ever anxious to leaim and to correct any errors into which, under pressure of onerous labors, we know we are liable to fall.

But counsel who, in the exercise of the sacred right guaranteed to their clients, suggest such errors, must do so in language considerate, measured and dignified. Exaggerated statements, declamatory epitliets and offensive aspersions of either the diligence or judgment of the Court, are suggestive of equivocal respect and will not he tolerated.

In the present instance, we have constrained ourselves to overlook the fault of counsel, for whom we have always entertained respect, and to attribute it to other motives thán intentional discourtesy.

We trust we shall not again be called upon to act on such a case.

The application for a rehearing is refused.


author: Bermudez, C. J.

text:
    No. 8471.
    John Chaffe & Sons vs. Sam Lisso et als.
    Where a creditor attacks a sale made in the name of a third person, for the occult benefit of his debtor, the burden is upon him. Where the evidence affirmatively supporting^the transaction has not been rebutted, the sale will not be disturbed.
    APPEAL from the Tenth Judicial District Court, Parish of Red. River. Logan, J.

      M. S. Jones, for Plaintiffs and Appellants,

      M. B. Watlmns, for Defendants and Appellees.
   The .opinion of the Court was delivered by

Bermudez, C. J.

This is an action for the recovery of a money claim for $5,396, and the revocation and annulment of a conveyance alleged to have been made between third persons, for the, benefit of the debtor, in fraud of his creditors.

There was judgment for the amount of the note and bill sued on, hut rejecting the action to annul. From this judgment the plaintiffs appeal.

Our attention has been specially invited by the appellees to the several hills of exception taken during the trial of the case, to the admission of acts under private signature, of a newspaper extract of testimony charged with irrelevancy, and of other action on the part of the District Judge. We have considered the evidence adduced, and think that the objections overruled went rather to the effect than to the admissibility of the testimony and other evidence received.

In cases of this description, a wide latitude is allowed for the introduction of evidence.

On the merits we find, that the reality of the purchase from Patton by Paul Lisso, through Julius, his agent, out- of the purchaser’s funds, is established by the deed of sale, the testimony of the vendor, of the vendee, of the latter’s agent, and by that of the judgment debtor. From the testimony of the three Lissos, it also appears that the expense incurred, concerning the improvements on the lot, was borne by Paul Lisso, and in no manner paid for by Sam Lisso. The ability of Paul to buy, and the fact that the money was paid, are shown beyond .dispute.

It is a possibility, in tlie abstract, that they have all testified falsely, but we eannot say so, unless the perjury has been clearly proved.

The many circumstances which the plaintiffs have established, although calculated to throw some suspicion upon the transaction, are, by far, insufficient to liave it set aside.

The burden was upon them, and they have signally fallen short of the requirements of the law in that regard.

We eannot attach any significance to the fact said to have been proved and probably shown, that part of the purchase price, some $47, was satisfied by Sam Lisso, the judgment debtor, by Ms “ squaring off ” a bill for that much with Patton, the vendor. The lot and buildings appear to be of a value of about $3,000.

The District Judge, who heard the evidence in the case, arrived to the conclusion, that the plaintiffs had failed in their action to revoke and annul, and that the defendant, Paul Lisso, had justified his title.

, We have not been shown that there was any error committed.

It is therefore ordered and decreed, that the judgment appealed from he affirmed with costs.


author: Fenner, J.

text:
    No. 7474.
    John J. Hayes vs. The City of New Orleans.
    Acfc lío. 60 of the Extra Session of tire Legislature of 1872, establishing a Hospital for smallpox and other contagious diseases, did not constitute a contract with the plaintiff, protected .from impairment by subsequent legislation.
    APPEAL from the Third District Court for the Parish of Orleans. Monroe, J.

      J. B. Beckwith, for Plaintiff and Appellant.

      O. F. Buck, Gity Attorney, and Wynne Bogers, for Defendant and Appellee. ...
   The opinion of the Court was delivered by

Fenner, J.

The question underlying the decision of this case is. whether Act No. 60 of 1872, entitled An Act to establish a hospital for small-pox and other contagious diseases,” constituted such a contract between the State and the plaintiff, as owner of the Luzenberg Hospital, referred to in said Act, as was protected from impairment by subsequent legislative action, it having been expressly repealed by Act No. 16, of the extra session of 1877. Prior to this repeal, the Act referred to had come under the consideration of this Court in two cases, Nos. 5896, and 6391, of the docket of this Court, (unreported) involving the determination of certain rights claimed thereunder by the present-plaintiff.

It was there held, that the Act did not confer on the plaintiff anj right, privilege or franchise,” for the violation of which he could maintain an action, and substantially held that it did not create a contract.

The Act is certainly a legislative anomaly, but we are really unable to discover in it the elements of a contract. It professed to deal with plaintiff’s property, without the slightest provision for obtaining or requiring his assent thereto. There is not a trace in the entire Act of an obligation of any kind imposed upon plaintiff. We can discover nothing which would have prevented plaintiff, at any time, from withdrawing his property from the use contemplated by the Act, if he had found it to his interest so to do. No provision is made for the securing of proper accommodations and treatment of the patients, who should be sent to the hospital, and no penalties or remedies afforded, if they should be inadequate. If he spent money in preparing his hospital for the reception of such patients, he did so of his own free will, and not in discharge of any obligation imposed on him by the Act.

A contract involves the assent of two minds, and when commutative, gives rise to reciprocal rights and obligations.

The only duties or obligations, referred to in this Act, are those imposed upon the city and upon certain officials of. the city and State,

These duties, whatever they were, continued during the legislative pleasure, but expired with the repeal of the law.

Whatever loss the plaintiff may suffer is damnum, absque injuria.

Waiving the’ question as to whether the legislature could validly barter away, for a term, the police power of the State over such a vital sanitary question as the disposition and segregation of small-pox patients, it is certain she cannot be presumed to have made such a contract, unless it appear, indisputably and beyond possibility of doubt, from her legislative Act. Such is not the case here.

Judgment affirmed at appellant’s cost.


text:
    No. 8512.
    A. Miltenberger & Co. vs. A. V. Dubroca, Recorder, et als.
    The registry of the judgment rendered on a mortgage note, in this case, was not a sufficient reinscription of the original mortgage, as the judgment did not contain and, when registered, did not convey all the necessary information for the purpose of the reinscription.
    APPEAL from tlie Twenty-third Judicial District Court, Parish of West Baton Ro'uge. Cole, J.

      3. M. Favrot, for Plaintiffs and Appellees:
    The registry preserves the evidence of mortgages and privileges during ten years, reckoning from the day of its date 5 its effect ceases, even against the contracting parties, if the inscriptions have not been renewed before the expiration of this time, in the manner in ichich they were first made. R. 0. 0. 3369 [3333].
    The event spoken of in Art. 2038 R. C. C., upon which depends the existence of mortgages as to third persons, is both inscription and reinscription. "When ten years elapse without reinscription, the condition upon which the mortgage depends is cónsidered as broken, and the mortgage, of necessity, lapses. Shepherd vs. N. 0. Cotton Press Co., 2 A. 109.
    It is now a rule of property in this State, that inscription and reinscription of mortgages, in the manner in which they were first made, are essential requisites to their effect upon prop* erty, in regard to third persons.
    Legal delays are fatal in ail cases, unless expressly declared otherwise
    If the party having an interest fails to inscribe or reinscribe Ms mortgage, lie cannot complain of losses suffered through his own neglect.
    The effect of inscription must not; be left a matter en pais, and, therefore, uncertain. It would give rise to endless litigation.
    The object of reinscription is to dispense with searching for the evidence of mortgages more than ten years hack. 2 A. 210 to 213.
    Nalle & Cammack’s judgment fails to give any clue to the origin of the mortgage which it makes executory, in this: 1st. The name of the officer who drew up the act is not mentioned. 2d. It refers to no date as to the execution of the mortgage deed. 3d. It is silent as to the date of its registry. 4th. It does not fix the amount which the original act of mortgage intended to secure. 5th. It fails to give the names of mortgagor and mortgagee.
    Nalle & Cammack caDnot be permitted to inscribe a loose and obscure notice, and have third persons to ferret out elsewhere the extent of the antecedent encumbrance claimed by them. Their judgment should be obtained iu a distinct and intelligible form. If a contrary practice were tolerated, confusion, mistakes and injustice would be the inevitable result. 2 A. 610; 4 R. 67; 2 A. 800-918; 7 A. 534 ; 23 A. 132; 25 A. 180 ; 27 A. 299; 28 A. 775.
    The inscription of Nalle & Cammack’s judgment was no notice to third persons. 21 A. 427 ; 22 A. 402; 28 A. 775.
    Neither knowledge nor notice supply the want of reinscription. L. L. p. 611, Nos. 7, 8, 9.
    In forced alienation of property, the observance of the forms of law supplies the want of consent of the seized debtor. So, if a judgment, by its registry, can supply the inscrip, tion of a conventional moitgage, it should contain all the facts necessary to a valid inscription of the original act. The facts must not be ascertained by an examination dehors the judgment.
    The mortgagor, after the peremption of the inscription, could not be held liable for the damages allowed by R. C. C. 3365, by giving another mortgage on his property to a third party. The registry of the Nalle & Cammack judgment is neither notice to the mortgagor nor mortgagee. Liddell vs. Rucker, 13 A. 571.

      JRead & GoodaUj for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

The sole question involved in this case is whether the registry of a judgment, obtained by the holder of a mortgage note, recognizing and rendering executory the mortgage, operates as a sufficient reinscription of the original mortgage by which the note was secured.

The note sued on was one of several notes secured by the mortgage, and the suit and judgment were in favor of a third holder, not the original mortgagee. The judgment sufficiently describes the property, but fails to mention the name of the officer who passed the act, or the date of the act or of its original registry, or tho name of the original mortgagee, or the total amount for which the mortgage was given. The judgment really contains nothing on its face to identify it with the particular mortgage, of which its registry is claimed to operate as a r'einscription, and leaves the reader under the necessity of looking outside of the record in order to ascertain all those facts, which should be patent on the face of the inscription.

The Code requires that the inscriptions shall be renewed in the manner in which they were first made,” Art. 3369.

The manner in which the original inscriptions are required to be made, is set forth in the case of Sue. of Simon, 23 A. 533, where it is held that the act itself must be transcribed, and that the registry of a mere certificate of the notary that he had passed even the act, though containing a complete description of all particulars of the mortgage, could not avail as a substitute for the act. A strict interpretation of Art. 3369 would impose like requisites for the reinscription ; but even if some latitude be allowed in the matter, it is clear that the reinscription must, in some form, either on its face or by distinct reference, present complete evidence of the mortgage intended to be perpetuated, so that the searcher may ascertain all the essential particulars thereof, without leaving the register’s office. Whother this object might be accomplished by a memorandum reciting the renewal or reinscription with reference to the date, book and page of the original inscription, is not presented in this case. See on this subject: 4 Rob. 7; 2 A. 610, 799; 4 A. 212; 7 A. 534; 20 A. 388 ; 21 A. 427; 22 A. 402; 23 A. 132; 25 A. 180; 27 A. 299; 28 A. 775.

The judgment inscribed in this case accomplishes none of the purposes had in view in valid reinscriptions.

So far as third persons are concerned, mortgages derive their effect, not from the mere convention of the parties, but from compliance with the laws of registry, and nothing can dispense from a strict observance thereof.

Judgment affirmed at appellants’ cost.


author: Poems, J.

text:
    No. 8449.
    Widow and Heirs of J. Renton Beaird vs. Sempronius Russ et al.
    The rules in reference to the interruption of prescription, cannot be applied to appeals, and the delay fixed by tbe law, within which an appeal may be taken, cannot bo extended by a so-called interruption of that delay, through any proceedings of the appellant.
    APPEAL from the Tenth Judicial District Court, Parish of Red River. Logan, J.

      L. B, Watkins, for Plaintiffs and Appellants:
    1. The pendency of an appeal in the Supreme Court, upon a transcript regularly filed, has the effect to legally interrupt prescription of the right of appeal, subsequently, if the first be dismissed for want of form ; and the period of time during which the first appeal was pending should be subtiacted from the two years’ time within which non-residents are allowed to appeal. C. C. 3518; C. P. 593. That the time fixed by law within which to appeal, is either a period of prescription, or the rules applicable to prescription, are to be apnlied to the interpretation and effect of appeals.
    2. The Code of Practice is a code of rules governing the practice; bnt the Civil Code is a code, or digest of all the civil laws in force. Ellis vs. Prevost, 13 La. 237; Childress vs. Johnson, 6 An. 634; Acts 96, 97, 98 of 16th of March, 1870; C. P. 49; C. C. 3536, 3518; C. P. 1, 13.
    3. Is an appeal an action in the sense of C. P. 1 ? "Vide comparative Articles of the Code of Practice, viz: C. P. 96,'573, 581, 584, 591, 170, 171, 179, 1; C. C. 3518; C. P. 536, 20 et seq.

    4. The time fixed by Code of Practice, 593, within which an appeal may he taken, is not a, fixed and inflexible limits but is subject to alteration, as circumstances may require, and therefore within the legal effect of citation, and whereby the right may he suspended, or interrupted. C. P. 3518; Morton vs. Valentine, 15 An. 150; McRae vs. Creditors, 16 An. 306; 22 An. 152; 20 An. 192; 27 An. 70 ; Winn’s Succession, 27 An. 688; Woods vs. New Orleans, 28 A. N. B.; 2 M. 83; 4 An. 467; 10 An. 327; 14 An. 241; Barrow vs. Shields, 13 An. 57; 3 La. 274; 12 La 530; 17 La. 213 ; 2N. S. 502; 3 La. 274; 11 B. 249; 6 B. 142; Baker vs. Thomas, 4 La. 418; 7 An. 523; 8 An. 469; 10 An. 327; 12 An. 672; Satterly vs. Morgan, 33 An. 846; Blower vs. O’Coimor, 17 La 219.
    5. “ Tliis Court has always given a liberal interpretation to that clause of C. C. 3518, which declares that a ‘ legal interruption takes place when the possessor has been cited to appear before a court of justice ’ ” Satterly vs. Morgan, 33 An. 846'; Leon vs. Bouilliet, 21 An. 651; Elam vs. Ventress, 24 An. 382 ; Martinez vs. Turner, 30 An. 818.
    6. Of the legal effect of an appeal as illustiated by citations of authority, showing a variety of cases in which the rules of prescription have been applied to appeals. Graham vs. Judge, 24 A. 598; Abrams vs. Joy, 16 A. 373; Taylor vs Wood ward, 25 A. 213; Hoffman vs. Howell, 27 A. 304; State ex rel. vs. Judge, 14 A. 105; Holbrook vs. Bronson, 25 A. 51; Aubeit vs. BobiDSon, 6 B. 463; Poutcbartrain vs. Judge, 27 A. 699; Gest & Atkinson vs. • N, O. St. L. B. B. Co.; Cooley vs. Seymour, 9 La. 275; Merchants’ Bank vs Walton, 7 B. 451; Succession of Jacobs, 5 B. 270; Vinnot vs. Bertrand, 6 A. 474; Prall vs. Peet, 3 La. 274; Blint vs. Cuny, 6 La 67; 7 La. 381; Cooley vs. Seymour, 9 La. 275; Succession, of Gilmore, 12 A. 562; Emerson vs. Lozanno, 1 M. 625.
    7. Of the abandonment of an appeal, actively or passively, and its effect. C. P. 594. Andrew’s Succession, 12 A. 340; Bedmond vs. Mann, 21 A. 149 ; Sharkey vs. Barkston, 22 A. 199 ; Succession of Pomeroy, 22 A. 518; Untereiner vs. Miller, 29 A. 435 ; Dozier vs. Sargeant, 4 La. 41; Collins vs. Montecon, 9 A. 39; Bobert vs Bruton, 1 B. 100; Sibley vs. Natchitoches, 3 B. 77; Gibson vs. Sibley, 2 A. 628; Jenkins vs. Bonds, 3 A. 339; Brickel vs. Carow, 10 A. 235.
    8. The appellee, S. Buss, insists that the legal principles applicable to actions, have no application to appeals. In support of tliis position, he oifces; G rifling's Heirs vs. Bowman, 3 R. 115 j Hall va. Beggs, 17 A, 238; Knox vs. DnpUntier, 21 A. 294; C. C. 3457, 3518, 3551.
    Tho extent to ■wbioh they form stare decisis is to be inferred from the text, "we can see no reason f and "we know of no law" oto,
    9. The C. P. 594, declares that nn act of abandonment of an appeal is equivalent to a prohibition ; but C. P. 593; fixes a period within which an appeal may be voluntarily exeicised.
    In the former oase, if the dismissal be eorreot, tbe right is not lost, because not abandoned; and not being abandoned, the delay is prolonged — the prescription is interrupted.
    Then it follows, that C. P. 593, provides for a passive abandonment; while C. P. 594, provides for an active abandonment of an appeal.

      Jos. 21. 2?ierson, for Defendant and Appellee :
    Motion to Dismiss.
    1. An appeal cannot be taken after lapse of one year by residents, and two years by non residents. C. P. Arts. 593 and 567.
    2. Rules in reference to prescription have no application to appeals. Grilling Heirs vs Bowman, 3 Rob. 115 j Hall vs, Boggs, 17 An. 238; Knox vs Duplantier, 21 An. 294; G. C. 3457, (defining prescription); C. C. 3518 and 3551.
    3. -Three devolutive appeals canuotbe prosecuted from same judgment. Brickellvs. Connor, 10 An. 225; Smith vs. Judge. 29 An. 839; Y. S. & T. K. R. Co. vs. Hemken, 15 An. 523 ; 12 An. 72
   The opinion of the Court was delivered by

Poems, J.

The ground urged for tho dismissal of this appeal is, that the time prescribed by law for appealing had elapsed when the order of appeal was obtained.

It appears from the record that the judgment appealed from was rendered on May 28th, 1879, and that the order for the present appeal was obtained on the 14th of December, 1881, or more than two years since the rendition of the judgment appealed from, which was the delay for appealing granted bylaw to these appellants, who are non-residents of the State. C. P. 593. Unless, therefore, they can show reasons for a suspension or an exception of the rule in the present case, they cannot maintain their appeal.

Assimilating the rules of law governing the right of appeal and fixing the period of time within which appeals may be taken, to the laws of prescription, and of the interruption thereof, appellants contend that the running of the delay, within which they were required by law to perfect and bring up the present appeal, was interrupted by two devolutive appeals, which they had previously and successively brought up from .the judgment rendered in this suit, and which had both been in turn dismissed from this Court, on motions of appellee, for laches of the appellants. The record shows, that their first order of appeal was' granted on motion in open Court, on the 28th of May, 1879, and that their appeal was returned on the third Monday of January, 1880, in this Court, whence it was dismissed oil tlie 1st of March following. 32 A. 304.

Tlie second appeal was obtained by petition on tlie 5th of May, 1880, and made returnable on the 3d Monday of January, 1881, and it was dismissed on the 21st of May following. 33 A. 920.

■ No explanation is offered by appellants for their failure to apply for the present, tlieir third devolutive appeal, between the 21st of May, 1881, tlie date of the dismissal of tlieir second appeal, and the 28th of the same moilth, the date, the month, in 1879, of the judgment appealed from.

They rely exclusively upon the ground, that the time during which these first two appeals were pending, and were under advisement in this Court, should not be computed in the two years’ delay granted to them by Article 593 of the Code of Practice; and they contend, that the citation of appeal served twice on appellee, operated as an interruption of prescription, conformably to Article 3518 of the Civil Code, which provides a legal interruption of prescription by means of citation before a court of justice, of the possessor, on account, either of the ownership or of tlie possession, and that the delay for them to appeal had not yet elapsed.

In support of this extraordinary position, their able and distinguished ■counsel has favored us with a very elaborate brief, which we have read with marked interest, but which has necessarily made no more impression on our minds, than to inspire us with admiration for a logical intellect, struggling against its own sound convictions, in a vain effort to confound legal subtleties with well recognized principles of law.

The fallacy of their position arises from an attempt to ignore the great difference existing between the Civil Code, which prescribes ■rules of action, and the Code of Practice, which prescribes rules of practice, established for the regularity of judicial proceedings, and for the guidance of parties seeking to enforce rights conferred by the Civil Code.

It has long since been settled, as well by the very nature of the two Codes as by the history of their adoption, as explained by our jurisprudence, that each Code was intended to treat of distinct subjects, and to secure distinct rights, and that each must be interpreted with reference to its distinct object.

Hence, we are justified in concluding that the innumerable, authorities quoted in appellants’ brief, on the subject of prescription, and of the mode or interrupting the same, have no possible application to the rules governing the right of appeal, and fixing the delay within which such right must be exercised.

A proper solution of the problem is afforded by a mere reference to the definition of “ prescription,” in our Civil Code, and of appeal,” in the Code of Practice.

Prescription is a manner of acquiring the ownership of property, or discharging debts, by the effect of time, and under the conditions regulated by law.” C. C. Art. 3457.

“ An appeal is the act by which one of the parties to a suit has recourse to a superior tribunal, in order to have the judgment of an inferior court corrected.” C. P. Art. 564.

As will be readily seen, one is a rale of action prescribing one of the modes of acquiring property, or of discharging debts, the other is a rule of judicial procedure looking to the correction of an alleged judicial error. The only element in common between prescription and appeal is that of time ; in the former it is the essential element, in the latter it is only incidental, and intended only to regulate or limit the exercise of the act. As to prescription, the Code provides means of avoiding the effect of time, or of interrupting the acquisition of property, or the discharge of a debt by the effect of time.

But the Code of Practice contains no such jmovision touching the delay or time within which the right of appeal must be exercised. It provides peremptorily and absolutely, without exception, reservation or qualification, that the party against whom judgment has been rendered cannot appeal:” * * *

2. “ If he has suffered the time prescribed by law for appealing to elapse!

We are clear in our belief and in our conclusion, that such a plain, unambiguous rule of practice cannot be allowed to be clouded, and crippled, and rendered painfully uncertain, by attempting to assimilate its provisions to the rules of prescription, a distinct and foreign subject matter. Appellants have not been more fortunate in their elaborate reasoning to show that “ action,” as defined in our Code of Practice, is the same as “ appeal,” as defined in the same Code.

We are again assisted to a complete refutation of appellants’ argument on this point by a mere reference to the textual definition of an action, which is, the right given to every person to claim judicially what is due or belongs to him.” C. P. Art. 1.

It is clear that an appeal is a mere incident to an action, and not at all the same thing. The judgment is the result or consequence of the action, and the appeal is the mode of seeking to have the judgment of the inferior court corrected by the appellate tribunal. .

Hence time, as an essential element of prescription, in its effects on. actions, is not governed by the same rules in reference to the delay or time granted for appeals.

The correctness of our conclusions on this motion is fully sustained by three decisions of this Court, in which it was distinctly held that the failure to bring up an appeal, within the time prescribed by law, was fatal to the appeal, and could not be cured by the laws of prescription. Griffing's Heirs vs. Bowman, 3 Rob. 115; Hall vs. Beggs, 17 A. 233; Knox vs. Duplantier, 21 A. 294.

We might have rested our present decision on the strength of these authorities, which we consider as both pointed and conclusive. But we note in appellants’ brief an effort to ignore these three opinions as unsatisfactory, for want of proper reasoning, and for that reason, to resist their weight under the rule of “ stare decisis.” Hence, we have thought it due to our jurisprudence to support the conclusions of our predecessors, by some reasons which struck us as forcible, although we fully recognize the difficulty of sustaining a self-evident proposition by logic and reasoning.

We are far, therefore, from feeling certain that we have in the least improved on our predecessors, or have been more successful in complying with appellants’ demand for “ more philosophical, better logical, mid sounder legal arguments, to convince them of the correctness of the principle announced.”

We do not understand, however, the mission of the judiciary, as implying the obligation to convince counsel of defeated litigants of the correctness of the reasoning of the Court, which seems to be expected by many advocates, as indicated by the style characterizing their applications for rehearing.

We have been taught that our duty was to adjudicate between the parties, under conscientious conclusions of law, as expounded in jurisprudence, after due consideration of the argument of counsel of both parties. To them, as we understand it, is the mission to enlighten and to convince the judicial mind.

Under the views which we entertain of this motion, we are compelled to sustain it.

It is therefore ordered, that the present appeal be dismissed at appellants’ costs.


text:
    No. 8439.
    Lehman, Abraham & Co. vs. Estate of T. Mahier.
    The evidence is insufficient iu this case, under Article 2278 of the Code, to show the interruption of prescription on the note sued upon, which is that of a deceased person.
    APPEAL from the Twenty-third Judicial District Court, Parish of West Baton Rouge. Oole, J.

      Samuel B. Greues and Bravglm, Bucle & Dinleelspiel,io-v Plaintiffs ¡uid Appellants:
    1. The written evidence necessary to prove the interruption of prescription of any debt of a deceased person, as required by Article 2278, R. C, C., need not be in any particular form. It suffices if same be in the form of aletter, memorandum, or the obligation itself, (when in wilting) in an account or otherwise. 33 A. 1067; 23 A. 455; 30 A. 1263; 27 A. 70; 25 A, 511; 7 A. 201.
    2. Where the debtor in various ways, from time to time, acknowledges in writing the exist- . ence of a debt, but does not describe same so specifically as to be readily identified, it may be proved by surrounding circumstances and contemporaneous acts of the debtor and creditor. In such a case parol evidence is admissible to explain and amplify the written declaration. 33 A. 1067; 23 A. 455; 7 A. 201.
    3. Where the acknowledgment does not describe the debt, parol evidence may be introduced to show that the debtor owed, the creditor to whom the acknowledgment was made, but one debt due at the time. 33 A. 1067 ? 23 A. 455.
    4. Where the debt is secured by mortgage, the inscription of which has not prescribed, and the debtor acknowledges a debt, without stating that it is the one seoured by the mortgage, his subsequent acts of renewing the mortgage and note, when the latter is prescribed on its face, though of itself of no effect as regards the acquired rights of third persons, when taken in connection with the previous acknowledgments, is a strong cor- * roborating circumstance to show the identity of the debt, particularly when there is but one due to the creditor who receives the acknowledgment.

      II. II Bavrot, for Defendant and Appellee:
    Parole testimony shall not be received to prove any acknowledgment or promise of a party deceased to pay any debt or liability, in order to take such dehfc or liability out of prescription, or to revive the same after prescription has been run or completed *, (R. O. O. 2278, No. 2; R. S.2819; 26 A. 514; 27 A. 639 ; 25 A. 492; 24 A. 496; 23 A. 531, 549); nor to-show a date on written documents that bear no date on their face. 21 A. 350; 21 A. 456.
    The object of the law in excluding testimony is: Ifiist- To protect the heirs and legal representatives of deceased persons from the cupidity and craft of creditors, whose testimony, if admitted, could not be impeached. Second — To prevent peijury in such cases, which otherwise would be licensed by the judiciary part of the government and placed heyond the reach of punishment. Third — To cany into effect one of the Divine inspirations of the Lord’s prayer: ^ Lead us not into temptation.”
    The written acknowledgment of the debtor, in order to iuteirupt prescription, must be of a. specific debt. It should be clear and unequivocal. The eircumatancos-should be such as to justify a reasonable presumption that the debtor was willing so to change his lights and obligations under a contract for the creditor’s benefit. 9 A. 17.
   The. opinion of the Court was delivered by

Fenner, J.

In this suit, commenced by executory process, for the enforcement of a mortgage note, the administrator of Maliier enjoined, the sale of the mortgaged property on the ground, chiefly, that the note, was prescribed.

The note matured on the 1st of October, 1874, and was therefore, prescribed on 1st of October, 1879, unless the current of prescription was interrupted by acknowledgment, which, as against the deceased, debtor, can only he proved by “ written evidence signed by the party, or by Ms specially authorized agent or attorney in fact.” ' C. C. 2278.

As the judicial demand was made on August 18th, 1881, the interruption, to" he effective, must have occurred within five years'prior to that date, to wit: after August 18th, 1876.

This Court has held, in the cases of Succession of Kugler, 23 A. 455, and Tilden vs. Succession of Morrison, 33 A. 1067, that when a letter was produced, signed by the deceased debtor, acknowledging a debt, parol testimony could be received to show that there was no other debt between tbe parties than the one sued on, and, hence, that the acknowledgment must have referred to it. This is a very liberal construction of tbe C. C. Art. 2278, and we are not disposed to extend it one whit further than we have already gone.

Sundry letters written and signed by tbe deceased, Mahier, are produced, referring to some old debt, but none, within tbe prescriptive period, which mention the mortgage note. In one letter dated September, 6th, 1876, he says: I have received, yesterday, your statement, showing my indebtedness to you to be $3,468.52, which I find correct.” Witnesses testify, that tbe mortgage note was included in that statement, but tlie statement itself is not produced, and tbe terms of its inclusion are not given.

The whole testimony satisfies us that tbe transactions between Mahier and' plaintiffs were carried on in open account, extending over a series of years, and varying in the balances shown, and that the mortgage note was really held as a continuing collateral security for this account.

The acknowledgments deducible from the letters may, and probably do,, refer to the debt thus due in open account, and do not operate as an acknowledgment of the note itself, sufficient to interrupt prescription thereon.

It is sufficient to say, that this matter is left in doubt.

Judgment affirmed at appellants’ cost.