author: Taliaferro, J. Howell, J., Ltxdeling, C. J.,

text:
    No. 5743.
    Frank F. Case, Receiver, v. H. W. Kloppenburg et al. Same v. William Schneider. (Consolidated).
    The right of the lessor to detain the movables subject to his privilege until the rent is paid, is not incomi)atible with the right of an ordinary creditor to enforce his rights against the same property without depriving the lessor of any portion of his debt for rent. The payment spolcen of in article 3218 of the Civil Code does not necessarily mean payment of the lessor’s debt by the adverse creditor before the latter is permitted to proceed against the property. The creditor seeking to enforce his claim, as in this case, might be unable to advance the amount of the lessor’s debt for rent, and thus by his poverty be debarred from, pursuing a legal right, which, if enforced, would realize money sufficient to pay the lessor in full and leave a surplus for himself.
    The lessor can not prevent a sale of the lessor’s property, on the pretense that it would not bring the amount of his debt. No right of liis is violated by a sale made in the exercise of a legal fight of another against the property. If the lessor’s right is preserved, if his debt is paid in whole or in part only, in case the entire proceeds of the property sub-. ject to his privilege are insufficient to pay it all, he has no just ground to complain. His rights can only be exercised concurrently with the right of others on the same property.
    The assumption on the part of the lessor of the right of detention of tlie lessee's property continuously, unless bis entire privileged debt is paid, would put the rights of others in abeyance and destroy that condition of equality before the law which all are entitled to occupy in asserting their rights in the courts of the country. of
    occupy Nothing is better settled in our jurisprudence than that a creditor who has a mere right of preference on the proceeds of property seized under execution has not tlie legal right to arrest the sale of the property, but is given tho right to interpose bis opposition and claim the proceeds under a distribution to be made according to law.
    The injunction prayed for in this case was illegally issued. The remedy of the lessor was by third opposition, claiming her priority of privilege on the proceeds of the property seized and subject to her privilege.
    APPEAL from the Sixth District Court, parish of Orleans. Bcvueier, J.

      J. D. Bouse, for plaintiff and appellant. Alfred Philips, for opponent and appellee.
   Taliaferro, J.

The plaintiff having a judgment against Kloppenburg and Schneider in solido and another against Schneider alone, caused executions to issue, and proceeded to seize the entire contents of a barroom or drinking saloon kept by Schneider at the corner of -G-ravier and Baron ne streets. Mrs. Lenes, claiming to be the owner of the building- in which this saloon is kept, and alleging that she leased the ground floor of the same to Schneider for the purpose of keeping a coffeehouse, filed a petition of opposition to the plaintiff’s seizure, on the ground that she has by law the lessor’s privilege upon all the effects of her lessee thus seized, and that she has also by law the right of pledge on the same; that the seizures made by the plaintiff are violative of her said rights, and are wrongful and injurious, and will inflict upon her irreparable loss and injury. She prayed that the plaintiff be restrained by injunction from proceeding with the said seizure, and that she recover from the plaintiff two hundred and fifty dollars as special damages for attorney’s fees, reserving her right of action against the said parties for the recovery of all damages, loss or injury she may hereafter sustain from the illegal acts and proceedings of the plaintiff in the premises. The plaintiff filed an exception to the opponent’s right to an injunction, and took a rule upon her to have it dissolved. Judgment was. rendered in favor of the opponent perpetuating the injunction, releasing the seizure, and awarding the opponent one hundred dollars special damages as attorney’s fees. From this judgment the plaintiff has appealed. The plaintiff let the premises to Schneider by written lease for the term of five years and four months, to be computed from the tenth of May, 1870, at the rate of $425 per month, for which in the usual manner of such contracts sixty-four notes were executed and delivered to the lessor for the monthly rent of the property. We understand the position of the opponent to be, that she maintains the right to keep in her possession the effects in controversy, without molestation as a subsisting pledge for the payment of her rent, and that the property so subject to her privilege can not be legally removed from the premises, or in any manner disposed of before her demand for rent is paid. This right is. claimed under several articles of the Civil Code, and especially under articles 2705 and 3218. Article 2705 declares that “the lessor has for the payment.of his rent, and other obligations of the lease, a right of pledge on the movable effects of the lessee, which are found on the property leased. Article 3218 provides that “the right which the lessor has over the products of the estate, and on the movables which are found on the place leased for his rent, is of a higher nature than mere privilege. The latter is only enforced on the price arising from the sale of movables to which it applies. It does not enable the creditor to take or keep the effects themselves specially. The lessor on the contrary may take the effects themselves and retain them until he is paid.” The opponent’s right, it is held, is sustained by the jurisprudence of the State, and we are referred to the case of James Robb v. William F. Wagner, 5 An. Ill, and to Arick v. Walsh & Boisseau efc al. 23 Au. 605. The expressions used in the two articles of the Code make it that the lessor’s rights are secured by more than a privilege, and we must interpret these articles so as to protect the lessor’s right fully over the movable effects subject to his privilege in order that such effects may be wholly and entirely subjected to the payment of the lessor’s rent to the exclusion of every inferior privilege. But there are higher privileges than those of the lessor. Take for example the privilege of the laborer on the crop grown on the plantation of the lessor cultivated by a lessee who owes his landlord rent for it. To the laborer who produces the crop the law accords the first privilege on the crop. Shall we say that the lessor may detain the products of the plantation until the laborer pays him the sum his lessee owes him for rent before he can enforce his first privilege upon those products 9 In such a case we apprehend the proceeds of those products would have to be distributed according to law if they were insufficient to pay both privileges. If they sufficed to pay only the laborer’s privilege the lessor would receive nothing. So also article 3256 Civil Code subordinates the lessor’s privilege to the charges for selling the movables subject to it. Why should not the same rule hold as between the lessor and those having inferior rights 9 If the proceeds of the movables subject to the lessor’s privilege sufficed to pay the lessor, leaving no surplus, the lessor would take it all, and claims of a lower grade would go unpaid. If there were a surplus remaining over and above the amount owing to the lessor, he would have no right to this surplus, and it would go to the creditor holding the next rank. In the interpretation of laws it is the duty of courts to give them that due force and effect that all who are governed by them may receive the benefit and protection they are entitled to under them.

It is a trite maxim that the property of a debtor is the common pledge of his creditors; by which we understand that every creditor has the right to look to the property of his debtor for the payment of his debt. Where the law creates privileges in favor of certain creditors on the property of the common debtor, it leaves to the creditors not preferred their residuary rights whatever they may be against the property of the debtor, notwithstanding the privileges imposed upon it, and they may exercise those rights subsidiarily to those enjoyed by the preferred creditors; and the reason of this right is obvious, for the value of the property may exceed in amount the debt of the privileged creditor and leave something for the ordinary creditor. It seems to us that the interpretation of the articles of the Code referred to, contended for in behalf of the opponent tends to ignore this well settled principle which accords to all creditors the equal right to pursue the property of the common debtor. The terms used in article 3218 of the Civil Code require a more liberal construction than the one offered in defense of the opponent’s claim. The right of the lessor to detain the movables subject to his privilege until his rent is paid is not incompatible with the right of an ordinary creditor to enforce his rights-against the same property without depriving the lessor of any portion of his debt for rent. Tiie payment spoken of in that article does not-necessarily mean payment of the lessor’s debt by the adverse creditor before the latter is permitted to proceed against the property. There are weighty objections to such an interpretation. The value of the property could not well be ascertained except by a sale of it. It might pay only a ¿art of the lessor’s debt, it might pay all of it, or it might pay more than all of it. Again, the creditor seeking to enforce his claim (in this case the plaintiff is a judgment creditor) might be unable to advance the amount of the lessor’s debt for rent, and thus by his poverty be debarred from pursuing a legal right which if enforced would realize money sufficient to pay the lessor in full and leave a surplus for himself. But it is argued on the side of the opponent that a seizure of the effects of the lessee subject to the lessor’s privilege is an interference with his rights of detention of the property, and if permitted would greatly deteriorate the value of the effects subject to his pledge, because by the use of them in the establishment of the lessee, they would yield a geater revenue and be a subsisting security to the lessor for his rent; whereas, by a sale of them a far less value would be realized. These are considerations that can not be taken into view in determining the legal rights of the parties. The elements for such an estimate are few and simple. The lessee owes the lessor a certain sum of money for rent of a coffeehouse, for which he is entitled to a privilege on all the movable property of the lessee in that establishment, consisting of his outfit, stock in trade, and paraphernalia of every kind used in carrying on the business he is engaged in. The lessor is entitled to the proceeds of that property if sold, to the extent of his debt for rent, if so much is realized by the sale. If a less sum is made he takes it all. He can not prevent a sale of the property on the pretense that it would not bring the amount of bis debt. No right of his is violated by a sale made in the exercise of a legal right of another against the property. If the lessor’s right is preserved, if his debt is paid in whole or in part only, if the entire proceeds of the property subject to his privilege are insufficient to pay it all, he has no just ground to complain.' His rights can only be exercised concurrently with the rights of others on the same property. His assumption of the right of detention of the property continuously unless his entire privileged debt is paid, would put the rights of others in abeyance and destroy that condition of equality before the law that all are entitled to occupy in asserting their rights in the courts of the country.

The authorities relied upon on the part of the opponent we are not prepared to admit are conclusive. The case in 5 An. 11.1 is very briefly reported. It seems to consist of an abstract from the judgment rendered in the case by the district judge and adopted as the decree of this court.

The facts of the case are not fully given. At all events the purport of the decision seems to be that, where property on which a landlord has a privilege for rent has been seized on execution at the suit of a third person, the landlord has two remedies, either by way of third opposition or by injunction. The case in 23 An. 605, like the one in 5 An., merely recognizes the right of detention as expressed in the Code. In the case in 23 An. the only question was, whether a lessor who has not recorded his lease has a better right to the proceeds of cotton, mules, etc., on the leased premises sold under execution, than the seizing creditor who has not himself registered his seizure. In the case of Robert Lynn Tanner, Administrator of William B. Pierce’s estate, v. Asa Tanner, 6 Rob. 35, the question came up more directly in a contestation between a lessor and an overseer for superiority of privilege on the crop raised on a plantation leased to the defendant. There, as in the case at bar, the lessor asserted his right to be of a higher nature than a mere privilege and claimed to have the right to take the effects themselves on which his lien existed and retain them until he was paid. The court said in that case : This right of detention which is a part of the lessor’s remedy, affords him, to be sure, much greater security; but like the pledgee and the creditor, having only a privilege, he must have the thing subject to his lien sold in the manner provided by law. When this takes place, if a conflict should arise in consequence of adverse claims on the same fund, a distribution of it must be made,” etc. We can find no satisfactory reason why the lessor’s rights should not be determined and his privileged claim ascertained and settled like those of every other creditor holding privilege or mortgage. We suppose that nothing is better established in our jurisprudence than that a creditor who has a mere right of preference on the proceeds of property seized under execution, has not the legal right to arrest the sale of the property, but is given the right to interpose his opposition and claim the proceeds under a distribution to be made according to law. In the case of Herbert’s Heirs v. Babin et al. 6 N. S. 614, Judge Porter said “the plaintiff's right is one of privilege, and as the law requires that property put up at auction by the sheriff shall be sold subject to all the privileges and hypothecations with which it is burdened, their position can not in any respect be altered by the sale, and consequently they have no authority to prevent it. This property may sell for more than will satisfy the plaintiff’s demand, and the defendants have consequently a right, even admitting their adversary’s privilege is of a superior nature, to cause the thing subject to it to be sold in order that they may get the overplus.” This doctrine was again announced in 7 N. S. 281, and has been repeated in various cases since that time.” It was broadly laid down in Wallace v. Bourg, sheriff, 14 An. 104, that the existence of a privilege or mortgage on property will not authorize an injunction to arrest its sale.”

In the case of Glerses v. McHatton, ibidem 560, where the question was whether property seized under execution was held by simulated title or by pledge, the court sustained the seizure and said: “ Considered as a pledge of the property, the plaintiff had no right to enjoin its sale under the executions of the defendants. He should in strictness have proceeded by way of third opposition to claim a priority upon its proceeds.”

Our conclusion is that the injunction was illegally issued, and that the plaintiff’s remedy was by third opposition, claiming her priority of privilege on the proceeds of the property seized and subject to the lessor’s privilege.

It is therefore ordered that the judgment of the district court be annulled, avoided and reversed. It is further ordered that the injunction be dissolved; that the plaintiff, Josephine Elliot, wife of Joseph Lenes, as principal, and Alfred Phillips, her surety, be condemned to pay in solido to the defendant in injunction ten per cent, on the amount of the judgments enjoined as damages, and all costs of suit.

Howell, J.,

concurring. I concur in the conclusion of Mr. Justice Taliaferro on the ground that I know of no law that enables a landlord and his tenant to shield the property of the latter from the pursuit of his creditors. When any other creditor than the landlord gets a judgment against a tenant, such creditor can seize the property of the tenant, so far as seizable under any execution, and sell it. Then the landlord may assert his preference on the proceeds for what is due him at the time j but he has no legal power or right to prevent by injunction the seizure and sale of the property subject to his privilege, if he has not by some judicial proceedings or some legal mode taken possession of it.

Article 2709 R. C. C. says: “In the exercise of this right (i. e., his right of pledge), the lessor may seize the objects which are subject to it, before the lessee takes them away, or within fifteen days after they are taken away, if they continue to be the 'property of the lessor, and can be identified.”

Until he seizes the property as provided by the law, any other creditor with a writ may seize under the general laws on the subject of seizing the property of debtors. All the articles of the Code relating to lease must be construed together.

Mr. Justice Morgan concurs in this opinion.

Ltxdeling, C. J.,

dissenting. Mrs. Josephine Lenes leased certain houses to the defendants; during the existence of the lease the plaintiff, a judgment creditor of the lessees, seized the contents of the houses — - whereupon the lessor, alleging that the property seized was not sufficient to satisfy her claim for the lease, enjoined the sheriff and plaintiff from taking said property and from selling it. She asserts her right of detention of the property under her right of pledge as lessor. It is contended that notwithstanding the lessor’s rights, the plaintiff may seize and sell the property, and that the lessor must assert his right against the proceeds.

If the lessor had only a privilege to secure his rents, the position would be correct. But the Code says: “The right which the lessor has over the product of the estate, and on the movables wlxich are found on the place leased, is of a higher nature than a mere privilege. The latter is only enforced on the price arising from the sale of movables to which it applies. It does not enable the creditor to take or keep the effects themselves. The lessor, on the contrary, may take the effects themselves, and detain them until he is paid.” 3218.

In Robb v. Wagner, 5 An. 111, it was decided that a lessor had “ a lien and right of detention upon the property on the premises for the security of his rent. The lien was his property, and as valuable to him as if he were the owner of the property itself; and no sheriff or marshal, under execution against a third person, had any right to take away the property before paying the landlord.” The same principle was recognized in Arick & Walsh v. Boisseau, 23 An. 605.

The case of Tanner v. Succession of Pearce is not in point. The organ of the court in that case'said : “The only question which this case presents for our solution is, whether the lessor or the overseer has the superior privilege on the crop of a plantation leased to the defendant.” And the court decided that the overseer’s privilege was superior. The court, it is true, said afterwards : “The right of detention, which is part of the lessor’s remedy, affords him, to be sure, much greater security; but, like the pledgee, and the creditor having only a privilege, he must have the thing subject to the lien sold in the manner provided by law. When this takes place, if a conflict should arise in consequence of adverse claims on the same fund, a distribution must he made pursuant to that chapter of the Code which treats of the order in which privileged creditors are to be paid.” This is true as to the privilege of the lessor, but what becomes of the greater right given him by the article, the right “ to take the effects themselves and detain them until he is paidwhich the court says, in the case of Tanner v. Succession of Pearce, affords him, to be sure, much greater security V How does it afford him additional security if, to enforce payment of his debt, he must give up this right of detention, which is higher than a privilege, and only assert his privilege on the proceeds of the sale ? The language of the Code is plain, and I think the legislators meant what it declares. “The lessor, on the contrary, may take the effects themselves and detain them until he is paid.” Sie seripia est lex. I therefore dissent in this ca.se.

Mr. Justice Wyly concurs in this dissenting opinion.

Rehearing refused.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 4415.
    Felix Formento v. F. J. Robert.
    Under the circumstances of the case, a mere clerical error, such as Joseph K. Robert for IT. J. Robert, in the decree of the court from -which an appeal is taken, can be corrected, by this court in revising the judgment. The defendant, who raises the objection, is estopped by his judicial admissions from denying that he is the party condemned at the trial below.
    The false statement by defendant in the act of sale to the plaintiff of a certain piece of property, that said defendant, as universal legatee, had the capacity to purchase the property adjudicated to him at the succession sale of Polly Vassant, led the plaintiff into error in regard to the material jiart of the contract to his prejudice, and this assertion was au artifice whereby the defendant succeeded in effecting the sale, which thoreiore is void, because the pretended adjudication to defendant was an absolute nullity, and his sale of the property to plaintiff was the sale of a thing belonging to another.
    The doctrine that the purchaser v ho has paid the price, and who has not been disturbed in his possession, can not demand the restitution of the price, is applicable only to a valid contract of sale. It has no application to a contract void for want of consent, and entered into in error produced by the fraud of the opposite party.
    The parol evidence adduced by plaintiff to prove that the price paid by him was thirty-three hundred dollars instead of twenty-three hundred, as stated íd the authentic act of sale, was properly excepted to by defendant.
    APPEAL from the Piftb District Court, parish of Orleans. Deaumont, J.

      Albert Voorhies, for plaintiff and appellee. Qustavm Schmidt, for Walker, for defendant and appellant.
   Wyly, J.

The plaintiff sued to annul a contract of sale for fraud, and to recover $3300, the price paid by him.

Instead of praying for the citation of Frangois J. Robert, the vendor, as appears by tlie contract made part of the petition, he prayed that Joseph N. Robert be cited.

The citation addressed to Joseph N. Robert was served on Frangois J. Robert, who was the party intended to be proceeded against. Prangois J. Robert appeared and filed the following exception :

“Fifth District Court, parish of Orleans. Pelix Formento v. Frangois J. Robert. The exception of the defendant in this suit respectfully shows: That even supposing all the facts and allegations of plaintiff’s petition to be true, the contrary of which he reserves to himself the right of proving in due time, should it become necessary, it is apparent that plaintiff has no cause of action, inasmuch as he does not and can not justly contend that he has been disturbed in the possession of the property bought of this defendant.”

Subsequently he filed the following answer:

“Pelix Formento v. P. J. Robert. The defendant in this suit comes into court by his undersigned counsel, and reserving to himself the benefit of his exception, and all other legal exceptions, for answer to plaintiff’s petition, says:
“First — -That he denies all the allegations in said petition contained, and not herein admitted.
Second — He denies that plaintiff has set forth any legal or sufficient cause for the rescinding of the sale made to him by the respondent, and that he has any right of action against him. Wherefore he prays that plaintiff’s petition be dismissed, and for general relief.”

At the trial Prangois J. Robert appeared by counsel, adduced testimony in his own behalf, cross-examined plaintiff’s witnesses, took a bill of exceptions, argued and submitted the case to the court. The court gave judgment for plaintiff, after stating the title of the suit correctly, but in the decree, evidently by mistake, condemned Joseph N. Robert instead of Prangois J. Robert. Joseph N. Robert was not before the court and had not gone into the trial.

Prangois J. Robert took a rule for a new trial on grounds appertaining to the defense set up by him, suggesting no mistake in the name of the defendant mentioned in the decree. He appeared by counsel at the trial of the rule, which was discharged.

He then filed a petition for an appeal, beginning in these words :

“Pelix Formento v. P. J. Robert. The petition of P. J. Robert, the defendant in the above suit, respectfully represents there is error to his prej udice,” etc. And in the appeal bond, after setting out the title of the suit correctly, and after setting out the obligation of the principal and surety, there is the following clause: “ Whereas, the above bound P. J. Robert, has this day filed a petition of appeal from a final judgment rendered against him in the suit of Pelix Foi'mento, No. 3311,” etc.

From the foregoing it is manifest that Francois J. Robert was the defendant in the suit, and was the party condemned by tbe court, notwithstanding the decree mentions Joseph N. Robert as the defendant. This was a mere clerical error in drawing up the decree, and can be corrected by this court in revising the judgment.. The defendant, who now raises the objection, is estopped by his judicial admissions from denying that he is the party condemned at the trial below.

Plaintiff alleges that in 1869 he bought from the defendant a house and lot on Dauphine street, as per act of sale passed before C. Y. Foulon, notary public; that in said act the said Robert falsely represented himself as the owner of said property, as the universal legatee of Polly Yassant, deceased, of whose succession he was testamentary executor, and a€ whose succession sale he became the adjudicatee of said property; that petitioner was not aware of the fact that said Robert was not the universal legatee of said Polly Yassant, and by the false and fraudulent representations of said Robert, he was induced to believe that the adjudication aforesaid was legal and binding, as in his capacity of testamentary executor the said Robert could not become the adjudicatee unless he were really universal legatee, as he represented himself in said act of sale; that said adjudication to said Robert was an absolute nullity, as he was disqualified from buying property under his own administration, he not being universal legatee; that when said Robert sold the property to petitioner, he knew the adjudication to himself was null and void; but in order to induce petitioner to make said purchase, and in order to conceal from him the defect fatal to his own title, he deliberately represented himself as the universal legatee of said Polly Yassant; that petitioner was kept in ignorance of said fraud practiced on him until about three months before bringing this suit, when he was negotiating a sale of the property, and it was discovered that he had no title because the adjudication to said Robert was void, he not being universal legatee of said Polly Vassant, as he had falsely stated. Petitioner claims $3300, the price of said property, alleging that one thousand dollars thereof were paid in cash in the presence of S. Schonfelt, but not stated in said act of sale.

The material allegations of plaintiff are established by the evidence. There is no doubt that the declaration in the act that the defendant was the universal legatee of Polly Yassant, induced the plaintiff to consent to the sale, and said assertion was false to the knowledge of the defendant, the vendor. He was not the universal legatee, and he was incapable of acquiring, by an adjudication, the property of the succession of Polly Yassant, under his administration as testamentary executor.

The contract is void for the want of consent resulting from a free and deliberate exercise of the will — the consent given by plaintiff having been produced or induced by the fraud of the defendant. Revised Code, article 1819.

The false statement in the act of defendant’s capacity to acquire the property adjudicated to him at the succession sale oí Polly Yassanf, led the plaintiff into error in regard to a material part of the contract to his prejudice, and this assertion was an artifice whereby the defendant succeeded in effecting the sale to plaintiff. Revised Code, 1847.

The property really belonged to the succession of Polly Yassant, the pretended adjudication to defendant being an absolute nullity, and the transfer by the latter to plaintiff being null, because it was the sale of a thing belonging to another. Revised Code, 2452.

The defendant, however, contends under article 2560 of the Revised Code, and on the authority of McCullough v. Weaver, 14 An. 33, that plaintiff, the purchaser who has paid the price, and who has not been disturbed in his possession, can not demand a restitution of the price. That doctrine is applicable to a valid contract of sale ; it has no application to a contract void for want of consent and entered into in error produced by the fraud of the opposite party. Until a purchaser in a valid contract is evicted, he has no cause to demand the restitution of the price. But the purchaser in a fraudulent sale may demand the nullity thereof as soon as he discovers the fraud practiced on him, because no one should be bound in a contract to which his consent was not freely given, but was obtained by artifice or fraud.

The parol evidence adduced by plaintiff to prove that the price paid by him was thirty-three hundred dollars instead of twenty-three hundred dollars, as stated in the authentic act of sale, was properly excepted to by the defendant.

“The authentic act ig full proof of the agreement against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.” Revised Code, 2236.

“Neither shall parol evidence be admitted against or beyond what is contained in the acts.” * * * Revised Code, 2276.

The prescription pleaded has not acquired.

It is therefore ordered that the judgment herein be amended to read as follows: It is ordered that plaintiff, Felix Fomento recover judgment against the defendant, Frang.ois J. Robert, annulling the act of sale oí the twenty-third of March, 1869, from said Franpois J. Robert to plaintiff, passed before C. Y. Foulon, notary, and that plaintiff recover of defendant twenty-three hundred dollars, with legal interest thereon from judicial demand, plaintiff paying costs of appeal and defendant paying costs of the court below.

Rehearing refused.


text:
    No. 5729.
    State ex rel. Edward Lubie v. Administrator of Finance, City of New Orleans.
    In precise terms, act No. 33 of tlie acts of 1874, makes Metropolitan Police warrants receivable for licenses throughout tlie Metropolitan Police district, and tlie relator in this instance clearly has the right to pay Ms license to the city of New Orleans in tlie warrants tendered by him.
    In this statute there is no longer any limitation, as before, upon the receivability of Metropolitan warrants for licenses throughout the Metropolitan Police district, and the court can not decide that there is a limitation where the law has imposed none.
    That Now Orleans received in settlement oí tases and licenses due her prior to the enactment of the statute of 1874, more than the aggregate amount of her apportionment, is immaterial to the issue in this case. If she received more than the law required her to receive and suffers an inconvenience on account thereof, it is the result of her voluntary-act.
    Like every other holder of Metropolitan Police warrants, she can present the excess beyond the pro rata apportioned to her, to the Metropolitan Police Commissioners for payment out of the money collected from the other cities, towns and parishes composing the Metropolitan Police district.
    There is no force in the objection that the Louisiana National Bank has enjoined the city and the respondent from receiving Metropolitan Police warrants for licenses, because that was virtually a consent judgment, and the rule is, such judgments are binding only on the parties.
    APPEAL from the Superior District Court, parish of Orleans. Hcwo-Icins, J.

      Honor & Benedict, for plaintiff and appellant. B. B. Jonas, city attorney, for defendant and appellee.
   Wyly, J.

The relator, who was owing the city of New Orleans $750 for his license to carry on the business of Pawn Broker for the year 1875, tendered in payment certain Metropolitan Police warrants issued for the fiscal years 1873 and 1874; the tender was refused, and the relator applied for a mandamus to compel the Administrator of Finance of said city to receive said warrants in payment of said license.

The court granted a rule nisi, and at the trial thereof refused the mandamus. From this judgment the plaintiff appeals.

Act No. 44 of the statutes of 1869, provides that all warrants issued in payment of the salaries of officers, employes and members of the Metropolitan Police under act of fourteenth of September, 1868, the act establishing the Metropolitan Police, shall be receivable for all parish and municipal taxes and licenses in the parish of Orleans, Jefferson and St. Bernard, and the cities of New Orleans, Jefferson and Carrollton; “provided that the aggregate of said warrants so received in each current year, shall not exceed the amount of the apportionment made by the Board of Metropolitan Pólice Commissioners, upon such city or parish for that year.” The act also provides a penalty against any parish or municipal officer for refusing to receive such warrants for taxes as therein provided.

Act 41 of tlie acts of 1870, provides that all warrants, checks or orders, issued by the Secretary and approved by the president of the Board of Police Commissioners in payment of the salaries of the officers, employes and members of the Metropolitan Police, and all warrants issued or that may hereafter be issued, signed and approved as aforesaid, “ shall be and they are hereby made receivable for all parish and municipal licenses, taxes and debts due, or to become due, to the parishes of Orleans, Jefferson, St. Bernard, and the cities New Orleans, Jefferson and Carrollton ; provided that the aggregate of said warrants, checks, or orders so received in each current year shall not exceed the amount of the apportionment made by the Metropolitan Police Commissioners upon said parish or city for that year.”

The act also provides a penalty against any parish or municipal officer for refusing to receive said warrants, checks or orders as provided in payment of taxes and licenses.

The warrants tendered by the relator were issued under this statute and were drawn for expenses incurred during the fiscal years 1873 and 1874. And on them is indorsed: ‘‘This warrant is receivable for all licenses, taxes and debts due and to become due to the parishes of Orleans, Jefferson and St. Bernard, and the cities of New Orleans and Carrollton, up to the amount of the apportionment assessed by the Board of Metropolitan Police Commissioners against said parishes or cities respectively on sixteenth October, 1872, for the fiscal year ending September 30, 1873.”

Although New Orleans had taken up in settling with her taxpayers warrants largely in excess of the apportionment assessed to her during the years 1869, 1870, 1871 and 1872, and warrants she could not have been compelled to receive because in excess of the apportionment for those years, she did not take up warrants aggregating the apportionment assessed to her by the Metropolitan Police Commissioners for the fiscal years 1873 and 1874. Under the act of 1870 the city could have been compelled to receive the warrants in question, evidencing the police expenditures for said years, because, during that period she had not taken up warrants to the amount of the apportionment, however largely in excess of apportionment she had taken up warrants during previous years.

The law in force at the time made these warrants receivable for all licenses, taxes and debts due to each of the parishes and cities in the Metropolitan Police district; “provided that the aggregate of warrants, checks or orders so received in each current year shall not exceed the amount of the apportionment made by the Metropolitan Police Commissioners upon said parish or city for that year.”

The law, however, has been changed. In 1874 the General Assembly passed act No. 33, which requires each of the cities and parishes composing the Metropolitan Police district to levy and collect a special tax, as estimated and apportioned by the Metropolitan Police Commissioners, for the support of the Metropolitan Police force for the year in which said estimate and apportionment is made. The act also provides: “ that in the tax levied for Metropolitan Police purposes payment shall be made and received in lawful money of the United States only, and it shall be unlawful to receive in payment of said tax any warrants or evidence of indebtedness of any kind whatever; provided that Metropolitan Police warrants issued by the Board of Police Commissioners for the payment of salaries and expenses of the police department incurred prior to the year 1874, shall be receivable in full for all taxes due the cities of New Orleans and Carrollton, and the town of ELennerville and the parishes of Jefferson and St. Bernard prior to the first day of January, 1874, except tax for interest on the bonded debt, the public school tax and city park tax, and for all licenses and debts other than taxes due the said cities, towns and parishes composing the Metropolitan Police district, due or to become due as provided by existing laws, until the said outstanding Metropolitan Police warrants shall all be absorbed, and that the warrants so received shall be credited to the several cities, towns and parishes composing the Metropolitan Police district pro rata against the apportionments made by the board of police commissioners for the'fiscal years prior and up to January 1,1874, after which they shall be turned over fo the treasurer of the Board of Police Commissioners to be by him canceled and destroyed under supervision of said board.”

This law is unambiguous. It requires a special tax to be levied and collected in cash throughout the Metropolitan Police district to support the Metropolitan Police department. It makes the outstanding-police warrants receivable for taxes due the cities towns and parishes composing- the Metropolitan Police district, prior to the year 1874, except certain special taxes, “ and for all 1.censes and debts other than taxes due the said cities, towns and parishes composing the Metropolitan Police district, due or to become due as provided by existing laws, until the said outstanding Metropolitan Police warrants shall all be absorbed.” ******

In precise terms this statute makes Metropolitan Police warrants receivable for licenses throughout the Metropolitan Police district, and the relator clearly has the right to pay his license to the city of New Orleans in the warrants tendered by him. Prior to the enactment of this law these warrants were receivable for taxes, licenses and debts due to the cities towns aDd parishes composing the Metropolitan Police district, provided the aggregate of warrants so received in each current year shall not exceed the apportionment made by the Metropolitan Police Commissioners upon said parish or city for that year.

In the law before us, however, there is no limitation upon the receivability of Metropolitan Police warrants for licenses throughout the Metropolitan Police district. And the court can not decide that there is a limitation where the law has imposed none.

That New Orleai.s received in settlement of taxes and licenses due her prior to the enactment of this law, more than the aggregate amount of her apportionment, is a matter quite immaterial to the issue in this case. If she received more than the law required her to receive, and suffers an inconvenience on account thereof, it is the result of her volutary act. Like every other holder of Metropolitan Police warrants, she can present the excess beyond the pro rata apportioned to her, to the Metropolitan Police Commissioners, for payment out of the money collected from the other cities, towns and parishes composing the Metropolitan Police district. For the years these warrants were issued adequate apportionments were assessed by the Metropolitan Police Commissioners against each of the municipal corporations composing the Metropolitan Police district. If on final settlement with the Metropolitan Police Commissioners it shall appear that certain municipal corporations of the district have taken up all the warrants, and others in lieu of warrants have paid in the cash, those holding warrants in excess of apportionment can demand and receive the money. In receiving warrants, as New Orleans has heretofore, beyond the requirements of the law, an inconvenience may result, but none of the disastrous consequences or losses suggested by the learned counsel for the city can befall the municipal corporation of New Orleans. There is no force in the objection that the Louisiana National Bank has enjoined the city and the respondent from receiving Metropolitan Police warrants for licenses; because as we have seen, that was virtually a consent judgment, and the rule is such judgments are binding only on the parties.

After virtually consenting to the injunction, the respondent and the city of New Orleans ought not to be allowed to set it up as a plea for a palpable dereliction of duty to the injury of third parties.

It is therefore ordered that the judgment appealed from be annulled, and it is decreed that the mandamus be made peremptory, respondent paying costs of both courts.

Rehearing’ refused.


author: Wyly, J. Howell, J.,

text:
    No. 5735.
    State of Louisiana ex rel. Warner Van Norden v. The Mayor and Administrators of the City of New Orleans.
    According to tlie provisions of the several statutes of the Legislature creating and regulating the duties of the drainage commissioners for the city of New Orleans, to whose rights and duties the respondents have succeeded, it is the ministerial duty of the respondents to collect the assessments and judgments for drainage taxes, in time to meet the payment of the warrants to he issued to the Mississippi and Mexican G-ulf Ship Canal Company hy the Administrator of Accounts for work done hy said company, and a ' mandamus will lie to compel the performance of this duty.
    As to the objection that the relator could not aoquire, and the Mississippi and Mexican G-ulf Ship Canal Company could not assign their franchises to him, it is one which the respondents are without interest to raise. The transfer, whether in pledge or in full property made to him hy said company, has been recognized hy the Legislature in act 22 of the acts of 1874, proposing an amendment to the constitution limiting the debt of the city of New Orleans, and it is now a part of the organic law of the State. After snob a transfer, thus recognized hy the State, the respondents can certainly raise no objection to said transfer.
    APPEAL from the Superior District Court, parish of Orleans. Ecm-Mns, J. for

      Lacey é Butler, Wm. H. Hunt, Mee & Whitaker, Alfred for relator and appellee. B. F. Jonas, city attorney, Samuel P. Blane, assistant city attorney, for respondents and appellants.
   Wyly, J.

This is a mandamus proceeding to compel respondents to collect the drainage taxes for the first, second, third and fourth drainage districts of the city of New Orleans, and to compel them to issue writs of fieri facias on the judgments rendered on the homologation of the tableau of assessments, or the assessment rolls of each and all of the aforenamed districts, as required by act 30 of acts of 1871, and pre.vious acts in regard to the drainage of the city of New Orleans.

The court granted a rule nisi, and at the trial made the mandamus peremptory, so far as to require the respondents to issue writs of fieri faeias and collect, as provided by law, cash sufficient to pay for tbe work now done under act 30 of tbe acts of 1871, to wit: the sum of $78,358. From this judgment the respondents have appealed.

The preamble of act 30 of tbe acts of 1873, entitled “An Act to provide for the drainage of New Orleans,” is the following:

“ Whereas, the proper and efficient drainage of the city of New Orleans is of paramount importance to the sanitary and commercial interests of the city, as also to the State of Louisiana; and, whereas, the Mississippi and Mexican Gulf Ship Canal Company are prepared to immediately undertake the work with the only kind of machinery adapted thereto and now ready for use, and to prosecute the same with energy and economy to completion; therefore be it enacted,” etc.

Sections one, two, three, four and five authorize and empower the Mississippi and Mexican Gulf Ship Canal Company to build certain protection levees aud to make certain canals required for the drainage of New Orleans. 32

Section six makes it the duty of the board of administrators, immediately after the passage of this act, to cause the lines of the protection levees and the canals specified in the various sections of this act to be located, and requires said board to build and run all pumps and draining machines necessary to lift the drainage water from said canals over into Lake Pontchartrain, and to keep the water in the canals in process of excavation at the proper level for the work of excavation.

Section seven provides “ that said Mississippi and Mexican Gulf Ship Canal Company shall be required to' have ready, within fifteen days after the passage of this act, machinery of sufficient power to excavate at least twenty-five thousand cubic yards per month, and to rnove the same the distance required to build the protection levees, and to increase as soon as practicable their machinery to the capacity of atdeast fifty thousand cubic yards per month.”

Section eight provides “that at the end of every month the city surveyor shall examine the work done by said company during said month, and, upon measurement of the width and depth of the canal, canals or parts of canals dug, and protection levees built, shall certify the number of cubic yards excavated and the number of cubic yards of protection levees built during said month; and on presentation of said certificate to the administrator of accounts he shall draw a warrant or warrants on the administrator of finance at fifty cents per cubic yard in payment of the work done. These warrants it shall be the duty of the administrator of finance to pay on presentation to him.”

By section nine it was enacted “that, in order to provide funds for the payment of the work to be done by the said company the three boards of draining commissioners for the drainage districts of Orleans and Jefferson, established under the acts of March 18, 1858, of March 17, 1859, and the several amendments thereto, and any and all other person, persons, or corporations, who may have them in possession, shall transfer to the board of administrators of New Orleans all moneys, assessments, and claims of drainage, in their hands, or under their control, all titles to real estate, all books, plans, tableaus, judgment in favor ot commissioners, the office furniture of said commissioners, a true statement of the claims of said commissioners against the city, to be adjudicated and settled out of the money collected by the city, and everything pertaining to said drainage districts : * * t-Provided, that all money or moneys received by the board of administrators from the said commissioners, from the collection of claims for drainage now due, lrom the collection of drainage assessments, and from any of the sources of revenue contemplated by the provisions of this section of this act, be placed to the credit of the Mississippi and Mexican Gulf Ship Canal Company, and held as a fund to be applied only to the drainage of New Orleans and Carrollton, in accordance with the provisions of this act; and that all property, not money, so received, shall be held in trust for the payment of said Mississippi and Mexican Gulf Ship Canal Company.’ ” * * * By this same section it is further provided: “ That the board of administrators be and they are hereby authorized and directed to collect from the holders of property within the said districts the balance due on the assessments, as shown by the books of the first, second and third drainage districts, under acts of March 18, 1858, March 17, 1859, and the several supplementary and amendatory acts thereto, which said assessments are hereby confirmed and made exigible at such time and in such manner as the board administrators may designate ; provided, that the said board shall collect the assessments herein authorized in time to provide for the payment of the warrants to be issued to the said company at the date of their issue; also to make assessments of two mills per superficial foot in those parts of the three draining districts, as existing under and created by acts of March 18, 1858, and March 17, 1859, and amendments thereto, and on such other lands as are brought within the protection levees contemplated by this act where no assessments have been made; and to execute and enforce the same, as provided for by the several acts of .the Legislature creating and regulating said board of draining commissioners.” * * * *

Considering the provisions of this statute and the acts of the Legislature creating and regulating the duties of the drainage commissioners, to whose rights and duties the respondents have succeeded, we are of opinion that it is the ministerial duty of the respondents to collect the assessments and judgments for drainage taxes in time to meet the payment of the warrants to be issued to the Mississippi and Mexican Gulf Ship Canal Company by the Administrator of Accounts for work done by said company; and that a mandamus will lie to compel the performance of this duty. We think the court did not err in making the mandamus peremptory so far as to require the respondents to issue writs of fieri fiadas on the judgments for drainage assessments, and to collect an amount sufficient to pay relator for the warrants issued by the Administrator of Accounts, and for the work now done under act 30 of the acts of 1871. As to the objection that the relator could not acquire, and the Mississippi and Mexican Gulf Ship Canal Company could not assign their franchises to him, we will remark that it is an objection the respondents are without interest to raise. The transfer, whether in pledge or in full property, made to him by said company, has been recognized by the Legislature in act 22 of the acts of 1874, proposing an amendment to the constitution, limiting the debt of the city of New Orleans, and it is now a part of the organic law of this State. After the transfer has thus been recognized by the State, the respondents can certainly raise no objection to it. They must perforin their ministerial duties, and the relator, as the transferee in ph dge of the franchises of the Mississippi and Mexican Gulf Ship Canal Com-can compel them by mandamus to do so.

Judgment affirmed.

Mr. Justice Morgan took no part in this decision.

Howell, J.,

dissenting There is no provision of the law, in my opinion, which makes it the ministerial duty of the Mayor and Administrators of New Orleans to issue writs of fier.i facias or cause them to be issued. The act of 1871, so far as it refers to tli#s subject (sec. 9), enacts “ that the Board of Administrators be and are hereby authorized and diiected to collect from the holders of property within the said districts the balance on assessments, as shown by the books of the first, second and third drainage districts, under acts of March 18, 1858, that of March 17, 1859, and the several supplementary and amendatory acts thereto, which said assessments are hereby confirmed and made exigible, at such time and in such manner as the Board of Administrators may designate; provided, that the said board shall collect the assessments herein authorized in time to provide for the payment of the warrants to be issued to the said company at the date of their issue; also to make assessments of two mills per superficial foot in those parts of the three draining districts, as existing under and created by the acts of March 18, la58, and of March 17,1859, and amendments thereto, and on such other lands as are brought within the protection levees contemplated by this act, where no assessments have been made; and to execute and enforce the same, as provided for by the several acts of the Legislature, creating and regulating said boards of draining commissionersand provided further, that all the money received by tlie said board trom all the sources contemplated by this act shall be placed to the credit of the Mississippi and Mexican Gulf Ship Canal Company, and held as a fund solely for the drainage of New Orleans and Carrollton, and all property, not money, so received, shall be held in trust for the payment of the said company and ultimately for the benefit of New Orleans, if not needed for drainage.

A reference to the other laws mentioned shows that a discretion was conferred on the several boards of commissioners, just as is conferred on the Board of Administrators by this act of 1871. It is made their duty, certainly, to execute and enforce the several assessments; but as provided for by the law and at such time and in such manner as they may designate, the time to be so as to pay the warrants to be issued by the company. They are also empowered in certain eont-ingeucies to purchase the property sold for the said- assessments. All these provisions of the law clearly show to my mind that while certain duties are imposed on the Board of Administrators, whii-h they should faithfully perform, they are vested with some discretion as to the manner of discharging those duties. They may find that if executions are issued the property will have to be bought by the city, as they are directed to do in certain cases, in order to bring the amount of the judgment as required by the law, and that would not provide-the money to meet the warrants. And when they call upon the clerk, of the inferior court to issue the writs of fieri facias (for they themselves can not do it), that officer may decline for some reason beyond! the control of the Board of Administrators, and then the latter would have to be compelled by mandamus to apply for and obtain at all events a mandamus to compel the clerk to issue the required writs of fieri facias. It is not every duty imposed on a public officer that can be enforced by mandamus. I can not think this is a case for a mandamus, and therefore dissent.


author: Kennard, J. Wyly, J.

text:
    No. 4100.
    Maurice N. Bowman et als. v. The City of New Orleans.
    where certain parties, whoso claims diet not exceed five hundred dollars, united with others whose claims exceeded that sum for each one of them and sued the city of New Orleans for several thousand dollars;
    Held — That haviDg' united in one suit for convenience and economy, and now desiring to sever, they can not thns he permitted to deprive the city of New Orleans of the benefit of an appeal, and that their motion to dismiss can not prevail
    If the proprietor below erects a dam or any other thing which obstructs the natural drainage of the estate above, he can ho compelled to remove the obstruction and to pay damages sustained on account thereof.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      C. W. Besangon, for plaintiffs and appellees. H. H. Walsh, assistant city attorney, B. F. Jonas, city attorney, tor defendant and appellant.
   On Motion to Dismiss.

Kennard, J.

This case is before us on a motion to dismiss, made by the following parties, plaintiffs, in whose favor judgments were rendered by the court below for various sums, none of which exceeded five hundred dollars, to wit: Africa Williams, Ctesar Small, Lazarus Young, Pennil Small, Joseph Jackson, Charles Small, Spencer Allen, and Harriet Morgan.

The above named parties united with sundry other plaintiffs whose claims exceeded five hundred dollars each, and sued the city of New Orleans for several thousand dollars. They united in one suit for their convenience and economy, and now desire to sever, to deprive the city of the benefit of an appeal.

The alleged damage seems to have arisen from one and the same cause, to wit, from the closing up by the city of certain outlets for water in the embankment known as Camp Parapet.

The city is entitled to consider the total amount prayed for in the petition as the amount claimed from her for one alleged unlawful act; this amount largely exceeds five hundred dollars. Heirs of Ballio v. Prudhomme et al., 8 N. S. 338. In the case of the State ex reí. Murtaugh et ais. v. -Judge Eighth District Court, No. 3445 of the docket of this court, lately decided, the reasoning of the court sustains this view.

Motion to dismiss denied.

On the Mekits.

Wyly, J.

Plaintiffs allege that they are farmers, and their farms are situated above and in the vicinity of a large embankment in the parish of Jefferson, known as Camp Parapet, being a fortification commenced by the Confederate authorities and completed by the Federal troops during the late war; that said embankment runs from the Mississippi river -to the high land, known as the Metairie Ridge; that through this embankment were several outlets or openings to allow the water naturally to drain from their places to the lands below; that in April, 1871, the city of New Orleans illegally caused these openings to be closed, obstructing the drainage of their lands and causing the loss of their crops by the overflow of rainwater ; that by this unlawful act they have been entirely deprived of drainage to their lands, and they have sustained the losses of which they complain.

They pray for damages, and that the city of New Orleans be compelled to remove said obstructions. There was judgment as prayed for, and the defendant appeals. The evidence shows that the city of New Orleans caused the obstruction to the drainage of plaintiffs’ lands, and they sustained the damages of which they complain. The embankment, known as Camp Parapet, is in the parish of Jefferson, and beyond the limits of the city of New Orleans. No authority was given by the police jury of the parish of Jefferson for the closing of the openings in said embankment allowing the rainwater falling on the lands above to flow naturally upon those below.

Article 660 of the Revised Code provides.tbat “it is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude. The proprietor below is not at liberty to raise any dam, or make any other work, to prevent this running of the water.” * * *

If the proprietor below ereets such dam or obstructs the natural drainage of the estate above, he can be compelled to remove the obstruction and to pay damages sustained on account thereof. 19 La. 351 j Revised Code 2315 ; 4 An. 440; 12 An. 15.

The city of New Orleans, having authorized the illegal act of her agents, is in no better position than any other person, and is responsible for the losses sustained by the plaintiffs on account thereof.

Judgment affirmed.


author: TaliaeerRO, J. Howell, J.

text:
    No. 4379.
    Smith & McKenna v. Edwin Charles.
    The motion to dismiss the appeal of G-lover & Odendahl, on the ground that the court is without jurisdiction because the amount in controversy is below five hundred dollars, must be overruled, the proceedings in the case being considered in the nature of a conoursus.
    The heir being considered seized of the succession from the moment of its being opened, the right of possession which the deceased had, continues in the person of the heir, as if there had been no interruption, and independent of the fact of possession, and each of the heirs becomes an undivided proprietor of the effects of the succession for the part or portion coming to Mm, which forms among the heirs a community of property as long as it remains undivided, and the recording of a judgment against an heir must be held to afiect all mortgageable property thus owned by such heir.
    APPEAL from the Fifth District Court, parish of Orleans, heauJ. J. mont, J.

      J. Magioni and T. Gilmore & Sons, for plaintiffs and appellees. Randolph, Singleton & Browne, for C. H. Lawrence & Co., and G-lover & Odendahl, appellants. Charles F. Claiborne, for Vose Bros. J. J. Finney, for Finney & Byrnes.
   On Motion to Dismiss.

TaliaeerRO, J.

This motion is made on the ground that the amount in controversy is less than $500, and that this court is therefore without jurisdiction.

Smith & McKenna sued Charles for $686 92, and obtained judgment for $636. Execution was issued and Charles’ interest in his father’s succession was seized and sold for the sum of $1750. A rule was taken ou the sheriff to show cause why he should not pay over to the plaintiffs the amount of their judgment out of the proceeds, and they made parties to the rule; several other creditors of Charles having judgments against him of record, among them Glover & Odendahl, the appellants, who claimed to be paid in preference to the others on the ground of priority of record. Their judgment is for $251, with a small amount of interest.

The judgment on the rule gave precedence to three of the creditors over Glover & Odendahl, decreeing to them and to Lawrence & Co. the remainder pro rata after the first three creditors were paid. From this decree Glover & Odendahl and Lawrence & Co. have appealed. The motion is made to dismiss the appeal of Glover & Odendahl.

We regard these proceedings as in the nature of a concursus, and, therefore, conclude that the appellants have the right to appeal. 3 Rob. 5; 2 An. 189.

It is ordered that the motion to dismiss be overruled.

On the MeRits.

Howell, J.

The material facts of this case are, that Richard Charles died leaving a widow and sis children; he made a will, stating his entire estate to be community, gave a special legacy of $2000 cash to his brother, and bequeathed the balance of his estate, real and personal, in equal shares to his sis children, subject to the usufruct in favor of his wife. His estate was inventoried at $70,043, of which $62,600 was immovable and $7443 movable property. The defendant in this suit becoming indebted to different parties, judgments were obtained against him and duly recorded. Executions issued, and all his right, title and interest in and to the succession of his father was sold for $1750 cash. The question presented and argued by the creditors is, did a judicial mortgage attach to what was thus sold?

According to the doctrine in Tureaud v. Gex, 21 An. 253, the mortgage attached to all the mortgageable property, and as the movable property is of insignificant amount compared with the immovable, it seems to have been considered unnecessary to fix the relative proportions of the proceeds.

As said in the ease above cited : The heir being considered seized ■ of the succession from the moment of its being opened, the right of possession, which the deceased had, continues in the person of the heir, as if there had been no interruption, and independent of the fact of possession ; and each of the heirs becomes an undivided proprietor of the effects of the succession for the part or portion coming to him, which forms among the heirs a community of property as long as it remains undivided. C. C. 936, 1214; and the recording of a judgment against an heir was held to affect all the mortgageable property thus owned by such heir.

It follows, therefore, that the claims of the contesting creditors of the defendant in this suit must he paid in accordance with the rank of their respective mortgages.

It is therefore ordered that the judgment appealed from he reversed,, and that the proceeds of the sale herein made by the sheriff and now in his hands, be distributed as follows, to wit: To G-lover & Odendahl, $251 40, with legal interest from second of October, 1871, and costs of suit.

To Yose Brothers, $519 80, with five per cent, interest per annumthereon from February 17, 1872, until paid, three dollars and sixty cents costs of protest and costs of suit.

To Finney & Byrnes, $228 84, with legal interest thereon from October 7, 1871, until paid and costs of suit.

To C. H. Lawrence & Co., $828 76, with eight per cent, interest from thirty-first January, 1872, and costs of suit.

To Smith & McKenna, the balance, if any, after paying the four preceding claims in their order. Costs of appeal to be paid by the plaintiffs, appellees.

Rehearing refused.


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

text:
    No. 4350.
    The New Orleans Canal and Banking Company et al. v. The City of New Orleans.
    The motion to dismiss the appeal made by each, of the two plaintiffs, on the ground that all the plaintiffs wore not made parties to the appeal, can not provail. There is but one judgment in the case, for which an appeal was granted in open court within ten days-after the rendition of the judgment and at the same term of court. Ko citation was necessary and both plaintiffs were made parlies to said appeal, taken by motion. The fact that afterward a petition for an appeal was tiled did not affect what was previously done.
    Act Ko. 30 of the acts of 1871, entitled “An Act for the drainage of 2Tew Orleans” does not repeal the act of 1858, which provides for leveeing, draining and reclaiming swamps in certain portions of the parishes of Orleans and Jefferson. It only changes, in some-degree, the mode by which the drainage is to be accomplished and the means to be applied, but the act itself still stands.
    The main reliance of the plaintiffs is, that the lands belonging to them have not been and will not be benefited by the drainage works which are now in progress. But this allegation is not supported by the testimony of the witnesses.
    APPEAL from tbe Fifth District Court, parish of Orleans. Leanmoni, J.

      George L. Bright, for plaintiff and appellee. B. F. Jonas„ city attorney, for defendant and appellant.
   On Motion to Dismiss.

Ludeling, C. J.

A motion to dismiss this appeal is made by each' of tbe two plaintiffs, the bank and George L. Bright, on the grounds-that all tbe plaintiffs are not made parties to the appeal. There is-only one judgment in the case from which an appeal was granted, in open court, within ten days after the rendition of the judgment, and. at the same term of the court. No citation was necessary, and both plaintiffs were made parties to said appeal, taken by motion. The fact that afterward a petition for an appeal was filed, did not affect what had been previously done.

The motion to dismiss is overruled.

On the MeRits.

Morgan, J.

In 1858 the Legislature passed an act entitled An Act to provide for leveeing, draining and reclaiming swamp lands in certain portions of the parishes of Orleans and Jefferson.” Three draining districts were established by this act, the first, second and third.

Plaintiff owns property comprised within the second district, as established by law.

Property situated within the districts was subject to a tax. Plaintiff paid the tax assessed to its property, under a judgment obtained against them, amounting to over $38,000.

The object of this suit is to recover the amount of that tax. The ground upon which the demand rests is that no portion of their land had been drained up to the year 1871, when the Legislature (act No. 30, 1871, p. 75) excluded them from the drainage district. The act in question is entitled “An Act for the drainage of New Orleans.”

We do not see from an examination of this act that it repeals the act of 1858. It changes in some degree the mode by which the drain age is to be accomplished, and the means to be applied thereto, but the act itself still stands.

The main reliance of the plaintiff is, that the lands belonging to the bank have not been, and are not to be, benefited by the drainage works which are now in progress. But the testimony of the witnesses shows that when the canals, etc., now in process of construction will have been completed, plaintiff’s lands will be drained. If this be so, and we order the defendant to return the money which has been received, the result would be that plaintiff’s land will be drained at others’ expense. We do not think that the law authorizes the judgment which was rendered in plaintiff’s favor.

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

Ludeling, C. J. I concur in the decree.

Rehearing refused.