author: Breaxjx, J.

text:
    No. 12,310.
    John A. Duffy et al. vs. The City of New Orleans et al.

      The Board of Commissioners is nota Corporation. — Legislation resulting in the appointment of a board of commissioners with functions defined does not necessarily create a corporation, though vested with some of the essentials to the life of a corporation.

      Appointment of the Members of the Hoard. — The members of a board of commissioners may be appointed by the executive in matter of property used by the general public, within the limits of a municipal corporation.

      The Act is General in its Effect. — An act is general, within the meaning of the Constitution, when it relates to a general interest.

      Not Wiihout-Due Process'of Law — Without resorting to the courts, the State may resume some control over property of,which the general public has the use, without the necessity of, in the first place, resorting to the courts.

      Authority Permissive and not Mandatory. — Without contravening any of the articles of the Constitution, a municipal corporation may be authorized to furnish the funds to pay the value of the property expropriated.

      Actual Issues. — It is the function of courts to deal with actual issues. Those which may arise will not be anticipated.
    The grounds urged are not of sucha character as to permit the enforcement of the law in its entirety.
    APPEAL from the Oivil District Oourt for the Parish of Orleans. King J.

      Bouse & Grant for Plaintiffs, Appellants.

      Samuel L. Gilmore, Oity Attorney, for Oity of New Orleans, Defendant and Appellee.

      Bernard MeOloskey for Board of Commissioners of the Port of New Orleans, Defendant, Appellee.
    Argued and submitted December 1, 1896.
    Opinion handed down December 14, 1896.
    Rehearing refused January 18, 1897.

   The opinion of the court was delivered by

Breaxjx, J.

From the refusal of the court a qua to grant the injunction applied for in this case, plaintiffs, residents of the city, owners of property therein, and taxpayers, prosecute this appeal.

The plaintiffs assert that Act 70 of 1896 is unconstitutional and void.

Whether the Legislature can pass a valid act to establish a commission for the port of New Orleans, define their powers and duties, provide a revenue therefor, is the question before us.

The first ground of nullity urged is that the act creates a corporation, and is in consequence obnoxious to Art. 46, prohibiting the General Assembly from - passing any local or special law creating corporations.

Some question also has been made regarding the power of the Governor to appoint the members of the board.

It is in point to state that it is declared in the preamble of the act that public notice has been given as required by Art. 48 of the Oonstitution. It also contains the declaration, which we paraphrase as follows for the sake of brevity: The port of New Orleans has been gradually extended beyond the corporate limits; the divided authority of three parishes and consequent fees, injuriously affect the traffic of the port and threaten to divert the trade to other ports; the supervision and control of a board will consolidate the service of harbor-master and wardens, wharf superintendents, wharfingers of three parishes under one body at a reduced expense.

The controlling motive is, it is further stated, to operate and improve the wharves, develop and expand the commerce of the port on the-lines above indicated.

Act 70 of 1896, under which a Board of Commissioners was appointed, does not create a corporation.

We think that the Legislature may, without contravening the article of the Constitution ordaining that the General Assembly shall not pass any local or special law creating corporations, provide for the appointment of a Board of Commissioners, with powers and duties set forth and defined in the act under consideration. The “ Board of Commissioners” authorized by the act of 1896 is not a body corporate within the meaning of the Constitution. It is obvious that the Legislature did not intend to create a corporation. Generally, a corporation has succession in its corporate name; it may plead and be impleaded; it may hold and convey property.

The board here is not invested with all these qualities, essentials to the existence of a corporation.

The act empowers this board to administer the public wharves of the port and invests it with certain duties. The matter is, we think, one chiefly of administration. The Legislature had the power to pass an act to administer the affairs of the public wharves and levees through agents.

Having this power it had the power to carry the legislative will into execution through the intervention of a Board of Commissioners appointed for the purpose, without necessarily creating a corpora - tion within the inhibitory clause of the Constitution. Though the board may possess some of the incidents of a corporation, it is not necessarily a corporation.

The provisions of the act can only be regarded as regulations and agencies to be enforced by this board. It is given such authority as may be needful to that end. The members are agents acting together.

This board is not a body corporate with privileges and immunities such as public corporations must have. The most that can be alleged is that the act authorizes the board to perform certain designated acts, which we must assume are in the interest and for the welfare of the State. The general modes of creating corporations are not before us for consideration. We are only concerned with an act of public agency passed for a special purpose. As such we do not think that it should be adjudged a public corporation.

Conceding that the constitutionality of the act is not as clear as it might have been made to appear, the authorities hold that every possible presumption and intendment will be made in favor of the constitutionality of an act, and that the courts will only interfere in cases of clear and unquestioned violation of the fundamental law. It has been repeatedly said that the presumption is that every State statute, the object and provision of which are among the acknowledgedpowers of legislation, is valid and constitutional; and such presumption is not to be overcome unless the contrary is clearly demonstrated.

Sedgwick on the Construction of Statutory and Constitutional Law, p. 409.

INTERPRETATION ALMOST CONTEMPORANEOUS WITH THE CONSTITUTION.

It is agreed by all the books that to contemporaneous interpretation due weight should be given in cases of ambiguity and uncertainty. A number of acts have been passed creating similar boards in this State, under which commissioners have been appointed by the executive. In matters of public health, in administering the .affairs of canals and other interests in which the State is concerned, boards are appointed with the silent acquiescence of the people, including the legal profession and the judiciary.

Great deference, said the Supreme Court of New York, is certainly due to legislative exposition of a constitutional provision, especially when it is made almost contemporaneous with such provision, and might be supposed to result from the same policy and mode of reasoning which prevailed among the framers of the instrument propounded in convention assembled. People vs. Green, 2 Wend. 266, 274.

The maxim itself is, Contemporánea expósito est fortissimo in lege.

APPOINTMENT OF THE BOARD OF COMMISSIONERS.

The second point, relating to the' appointment of the officers who ■should he charged with the administration of the wharves and revenues, is more particularly taken by the city of New Orleans.

The city avers that the matters involved are local and municipal, .and that under Art. 253 of the Oonstitution the officers charged with such duties must hold their offices from the people in the city.

It is not alleged that the city, through any of its officers, can enforce the act. This is impossible under the law. It must be enforced, in so far as relates to the selection of the members of the board in accordance with its provisions, or it can not be enforced at all.

Article 253 is in these words:

“The citizens of the city of New Orleans, or any political corporation which may be created within its limits, shall have the right of appointing the several public officers necessary for the administration of the police of said city, pursuant to the mode of election which .shall be provided by the General Assembly.” • (Italics ours.)

The organic law, in terms, secures “the right (to the city) of appointing the several public officers necessary to the administration of the police,” while the Board of Commissioners have the power of “ providing for lighting and policing the wharves and sheds.” They are not necessarily conflicting duties. One power is not necessarily opposed to the other One may provide funds and the other may have charge of the police of the wharves.

The act in question, as relates to the appointment of the members of the Board of Commissioners, is not unconstitutional.

The story of the wharves is gracefully narrated in the brief. Counsel, in support of their cause, quote from well considered decisions of our predecessors. First Municipality vs. Pease, 2 An. 542; Louisiana State Bank vs. Orleans Navigation Company, 8 An. 295; Stewart vs. City of New Orleans, 9 An. 461.

It is also supported by reference to the utterances of prominent legislators in the past history of the State, whose learning and ability were conspicuous in directing the course of legislation and safeguarding public interest. The gist of the narration is that since the days of Governor O’Reilly, under Spanish dominion, ordinances have, been enacted by the city relative to fees for wharfage, and that the city always had complete and absolute charge of the police.

It is possible that the historic argument loses its immediate point, in view of the fact that private rights, in so far as appears in this ease, are not to be interfered with, and that the police is to remain under the direction of the city authorities.

We refer to one of the cited authorities in counsel’s brief, and one upon which, we infer, they confidently rely. In the case cited, that is in Edgerton vs. New Orleans, 1 An. 437, Mr. Justice Rost, speaking for the court, said in substance: That the city had special sovereign power; it had the right to appoint the several police officers necessary for the administration of the police. A right which we also hold can not be questioned.

This right, the court in the last cited case justly said, is secured and rendered permanent by Art. 128 of the Constitution.

And further the court says: “The counsel derides the idea that the city is invested with sovereign powers. Names can not alter things. Under our policy no department of the government exercises the power of sovereignty in its own right. The constitutional powers of the State are all trust. The powers of the Legislature, of the court and of the city of New Orleans differ in degree and object, but they all derive their binding force from the supreme law of the State." (Italics are ours.)

Article 253 of the Constitution of 1879 is substantially a reproduction of articles upon the subject of preceding constitutions, save that the wording in the latter in regard to the police of the city is .slightly different. We reaffirm the decision. . constitutional limitations alone are the measure of legislative power.

The legislative powers legitimately to be implied from the terms of the decision just cited are broad enough to sustain our views.

THE BANKS OP RIVERS ARE POR THE USE OP THE GENERAL PUBLIC.

The powers of a municipal corporation are divided into public and private. In all that relates to purely municipal purposes, appointments or election can only be made by municipal authority.

“The powers and capacities,” said Judge Cooley, as organ of the court, “which are acquired under them, are usually spoken of as private, in contradistinction to those in which the State is concerned, and which are called public.” People vs. Detroit, 28 Mich. 228.

Landings within the limits of corporations are not without legislation, within the power of the municipal government. The State is concerned; while it may delegate its authority, on the other hand it may exercise it through its chosen agents. The State may appoint agents to take charge of any of the public property not by the Constitution confided to any other authority. Maximillien vs. Mayor, 62 N. Y. 160; Connors vs. Mayor, 2 Hun. 440; Kuhn vs. Latro, 46 Pacific, 87-94; Easterly vs. Incorporated Town of Irwin, Northwestern Reporter, 919-921.

We now reach the next point: That the act is obnoxious to Art. 46 because it provides for the maintenance of the wharves and landings and approaches thereto, which are, counsel urge, public highways. The constitutional prohibition applies to “ roads,” “highways,” “streets,” or “alleys,” and does not embrace landings and levees. They are loci publici, and are, at times, referred to as public places on which there may be “ highways.” The words of a law are to be understood in the common and usual signification. “ Highway,” as generally understood, and in the sense in which it is employed in the Constitution, between the related words of “street” and “road,” does not include rivers or its bank. The rule nosdtur a sodis is not without application.

THE STATUTE' IS NOT LOCAL NOR SPECIAL.

W e are not impressed by the argument that the act is a local or special law. We would find difficulty in acceding to the proposition that the act is local and special. There are no issues involved of small or local consideration. The fertile valley is interested: the traffic and commerce on seas and ocean are concerned.

The act under which the Criminal District Court of this city was given life and authority was assailed as being a local law, contrary to the article of the Constitution here invoked. This court decided that it was not a “ local law,” but'general in its effect, citing a number of authorities in support of the opinion (State vs. Dolan, 35 An. 1141, 1144).

That act was much less general in its effect than the law we now have under consideration. The law being general in its effect, it is general (30 Howard B. C. New York, 289).

A QUESTION OF ADMINISTRATION ONLY.

We pass to the alleged repugnance of the act to Art. 56 of the Constitution.

It is urged upon our attention by counsel that the intent of this article is to prevent the possibility of wrongfully divesting municipal corporations of their private property.

The matter we are called to decide is purely administrative. There is nothing granted to the Board of Commissioners save the right to administer, in accordance with the terms of the act, property of which the State has the power to resume control.

The fact that this board may attempt to exceed its powers is no reason, in the present proceeding, for declaring the act void.

DUE PROCESS OF LAW.

This brings us to the consideration of the alleged attempt to deprive the city of her property, without due process of law, and without compensation.

The grantor of the franchise is a public body; the grantee also. It is settled by numerous decisions that in such a case the grant is not beyond the reach of the legislative power. The State can, on suitable occasions, acquire the power with which it has parted without the necessity of resorting to the courts. It is certain that the city can expect no compensation in the literal meaning of that word for public property. It is with that class of property we are now dealing. If the city has private interests involved, they must be protected.

Under an allegation of private interests, however, we do not think it possible to prevent the enforcement of a law, under which the control of public property is resumed.

THE PURCHASE OR EXPROPRIATION OF A FRANCHISE.

Lastly, it is urged, that the proposed purchase or expropriation of the lease of the Louisiana Oonstruction Company, at the expense of the city, is another illegal feature of the act.

By the terms of the act, the State has made it the. duty of the Board of Commissioners as its agent, to acquire the lease of the wharves, by purchase or by expropriation; i. e., the lease now held by the Louisiana Construction and Improvement Company, and it is also made the duty of the Common Council to provide for the payment of the price of the purchase or expropriation; provided, that this price to be paid shall be satisfactory to the council.

First — As to the authority of the Board of Commissioners, it is not evident that the Legislature has exceeded its authority. Leases generally are as subservient as any other contract to the power of eminent domain, upon condition of adequate compensation. In reference to a franchise, it has been decided that it is “ of no higher order and confers no more sacred title than a grant of land to an individual, and where the publicwiecessities require it, the one as well as the other may be taken for public purposes on making suitable compensation.” Abbott’s National Digest, Vol. 2. A lease of a franchise must be held subject to the same principle, or else the power of eminent domain might be easily frustrated. We do not intend to intimate that there was any such purpose in this case in leasing the franchise. We only hold, that leases generally are held subject to the power provided for by the article of the Constitution, reading:

“ No expost facto law, nor any law impairing the obligations of contract, shall be passed, nor vested rights be divested, unless for purposes of public utility and for adequate compensation.”

Second — As to compelling the city to pay the price as contended by plaintiff, is the purpose. Such is not our interpretation of the act. The power, as we believe, was intended to be directory. The City Council is not commanded, nolens volens, to provide the funds and pay the price. The proviso which reads “ that the price to be paid shall be satisfactory to the said council ” invests the whole section with a permissive character in so far as the City Council is concerned.

In re Brooklyn, published in “Lawyer’s Reports of Annotated Cases,” Book 26, pp. 270, 278.

As to the lease under which the wharves are now held and managed by the Louisiana Construction and Improvement Company, we express no direct opinion; there may be special defences taking it out of the grasp of general principles. It will be time enough to pass on particular questions if the matter should be brought before us, in course of time contradictorily with those directly concerned.

The issues actually before us would not justify an injunction.

The judgment is affirmed.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 12,295.
    William A. Deniger vs. Sixth District Sanitary Excavating Company.
    A PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Henry P. Dart and Benjamin W. Kernan for Plaintiff, Appellee.

      Charles F. Claiborne for Defendant, Appellant.
    Argued and submitted December 18, 1896.
    Opinion handed down January 4, 1897.
   The opinion of the court was delivered by

Miller, J.

This is an appeal from the judgment decreeing plaintiff to be the owner of twenty-five shares of the stock of the Sixth District Excavating Company and the dividends thereon. The judgment is against the company and the defendant Benton, who has collected the dividends in controversy.

The issue is one of fact only and the judgment of the lower court is affirmed.


author: Breaux, J.

text:
    No. 12,211.
    New Orleans Canal and Banking Company vs. Leeds & Co., Limited.
    The movables permanently attached to a factory, if the factory is an immovable property, are also immovable, and as such, subject to amortgage bearing upon the whole factory.
    One who has no interest in a fund has no right to interfere in its distribution.
    A debtor unless he alleges and shows that he has an interest of some sort involved is without right or authority to raise the question of the illegality of the trans - ferof the claim for which he is sued.
    The books of a corporation are*admissible in evidence to prove the claim of a creditor, as against other creditors, if it is shown that they are correctly kept, and all the circumstances support the entries as to their verity.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Branch K. Miller for Plaintiff, Appellee.

      Hugh C. Gage and Benjamin Bice Forman for Receivers and others* Third Opponents, Appellants.

      Garroll & Carroll for Mrs. Charles J. Leeds Defendant in Third Opposition, Appellant.
    Argued and submitted November 18, 1896.
    Opinion handed down December 14, 1896.
    Rehearing refused January 18, 1897.
   The opinion of the court was delivered by

Breaux, J.

This is an action via executiva, to enforce the payment of three notes secured by mortgage.

The property mortgaged is the “ Leeds Foundry,” and is described -as consisting of parcels of ground, in the First District of this city, with the buildings and improvements. The evidence discloses that the machinery, consisting of boilers, engines, lathes and other implements, which the third opponents claim are not mortgaged, were placed by the owners for the improvement-and service of the foundry, before the date of plaintiff’s mortgage.

The liquidators of the insolvent firm of “ Leeds & Co., Limited,” mortgagors, in their petition of, intervention and third opposition, allege that plaintiff owns only one of the three notes, and that the other two notes are owned by Mrs. Charles J. Leeds. That included in the property seized are tools and other implements not affected by the mortgage.

They pray for separate appraisement and the amount of the sale of this property be distributed among the ordinary creditors.

They allege further that she is not a creditor of the corporation of Leeds & Co., Limited. That the latter had no authority to mortgage its property to her or to give her any interest in the notes secured by the mortgage, for which it received no consideration.

The plaintiff and Mrs. Leeds, in separate answers, in substance, denied the averments of the third opponents.

X. The judgment of the District Court maintained the opposition in so far as to limit the interest of the plaintiff, subrogee, in the claim sued on, to one note of five thousand dollars, with interest, and limited the interest of Mrs. O. J. Leeds in the other two notes of the three notes sued on to six thousand three hundred and sixty-nine 55-100 dollars with interest, and added an order in regard to fees and costs.

With these exceptions stated in the judgment, the oppositions of Henry Rennyson and John P. Baldwin, liquidators and receivers, were dismissed.

From this judgment the opponents have appealed.

Mrs. Leeds also prosecutes an appeal.

The first question which this case presents is whether the “ movables ” were part of the foundry and immovable by destination, and as such, subject to plaintiff’s mortgage.

The tools, lathes and machines, forming part of a foundry, and used in its works, become immovable by destination. These improvements in the Leeds foundry, in so far as it was needful to the operation of the foundry, were permanently attached to the realty, and rested upon brick and mortar. At the time the Civil Code was adopted, interests in manufacturing industries were quite limited. The article of the Civil Code, 458, is, in consequence, not as large and1 full upon that point as it is in regard to agricultural immovableness. At this time, the conditions of the two do not greatly differ. The movables permanently attached to factories, if the factory itself is immovable, become an immovable by destination, in the same manner that things which the owner of a tract of land has placed upon it for its service and improvement are immovable by destination. O. O. 468.

Applying this rale we think that the “ movables ” were subject to-plaintiff’s mortgage.

Williams vs. Sheriff, 47 An. 1286; Baldwin vs. Sheriff 47 An. 1468; Maginnis vs. Oil Company, 47 An. 1496; Citizens Bank vs. Knapp, 22 An. 117; Theurer vs. Hautre, 23 An. 749; Folger vs. Kenner, 24 An. 436.

This brings us to the second question involved in the case, that is, whether after imputing the proceeds of the sale to the payment of the mortgage preceding'in rank the mortgage claimed by one of the appellants, Mrs. Leeds, there remains anything to be imputed to the payment of the claim of any one.

It is undisputed, plaintiff held two prior mortgages in addition to the amount of its claim in these foreclosure proceedings. The adjudicates of the property retained in his hands an amount of a mortgage also undisputed, i. e., the mortgage mentioned for identification as the Butler mortgage. It appears by the sheriff’s return, admitted in evidence without objection, that there will remain after payment of these mortgages only a small amount which would be imputable to the payment of the creditors subsequent to plaintiff in rank of claim, were it not that there are one or-more balances unsatisfied under the terms of the prior mortgages, so that be the final result of the litigation what it may, opponents and other creditors will not recover, and are absolutely without any interest.

It will be observed that the prior claims are not contested. The objection is directed against Mrs. Leeds’ claims as alleged holder of the notes secured by mortgage. She is not to collect anything.

This court has decided where one had no right in the fund distributed he can not contest its distribution. Tiner and Conrey vs. Steamer Bride, 5 An. 756.

It follows as a conclusion that those who dispute the claim of an alleged creditor are without interest to have the illegality determined if it be manifest that the alleged creditor can not possibly have any interest in the fund held to be distributed.

To sustain a third opposition against an alleged creditor the intervenor must allege and prove that he has an interest involved in the suit as against the particular alleged creditor whose claim he contests. Coleman vs. Coleman, 37 An. 566.

In addition, the want of interest is apparent in so far as relates to the debtor’s right to contest.

The debtor is the corporation of Leeds & Co., Limited.

It received credit of an amount ostensibly, at least, advanced by the wife of one of the incorporators. The receivers represent the firm and must here be held, on this point, to the rule which would apply to the firm. We have not found a word of testimony proving that Charles J. Leeds, the husband, is indebted to the firm. In the absence of such proof, it can not be a matter of much concern, either to the corporation or to the liquidators who is the creditor. It, or they have no interest in the result, and can not sustain objections that can not be of any one avail save to interested persons; particularly as fraud is not alleged or intimated.

We pass to the last point in the case; our views heretofore expressed render it unnecessary to dwell, at any length, upon the issues it presents.

First, the entry in the books of Leeds & Co. were offered in evidence by Mistress Leeds.

To which evidence the third opponent objected on the ground that the books of an insolvent corporation can not be used in evidence as against other creditors.

In argument at the bar, the case of Calder vs. His creditors, 47 An. 1539, was cited in support of the objection. The conditions are not the same.

In the cited case the witnesses had no knowldge that qualified them to satisfactorily prove the indebtedness; the case was remanded for further proof.

In the present case there was nothing suspicious in the appearance of the books; the manner they were kept and the entries as made, besides they were supported by ample corroborative proof.

Finally, ex industria we have examined the only remaining question. In our view it is not actually before us for decision. We agree with the District Judge that it appears of record that she had the amount which she subsequently delivered to her husband; that it was invested by him in his business; that notes were made by him secured by mortgage for her security; that these notes were actually deposited as such security with plaintiff’s bank; that at a time subsequent, at the instance of plaintiff through its president, these notes were surrendered by her and delivered to plaintiff bank in order to enable the corporation of Leeds & Co. to obtain a loan which it used for the purpose of its business; that in lieu of the surrendered security to the bank, the notes secured by mortgage of Leeds & Co. were held as her security.

These being the facts, we think the judgment should be affirmed.

It is affirmed.


text:
    No. 12,266.
    The State vs. Eleck White et als.
    A legislative act amending the section oí the Revised Statutes defining the crime and providing for its punishment, -which merely changes the maximum of the penalty, repealing the section only so far as it conflicts with the amendment operates no repeal of the section except in respect to the maximum punishment for offences committed subsequent to the act; hence, the power to try and sentence under the section for an offence prior to the amendatory act is not, touched by it. Revised Statutes, Sec. 792, Act No. 59 of 1896.
    The decision distinguishes legislative acts dealing with the subject of a prior law, and which repeals all laws on the same subject matter, and a legislative act merely amendatory of the prior law and repealing it only so far as is inconsistent with the amendment. 13 An. 486; 12 An. 431.
    A PPEAL from the Eighteenth Judicial District Oourt for the Parish of Lafourche. Caillouet, J»

      M. J. Cunningham, Attorney General, and L. C. Moise, District Attorney (P. A. Simmons, Jr., of Couusel), for Plaintiff, Appellant.

      Beattie & Beattie for Defendant, Appellee.
    Submitted on briefs November 7, 1896.
    Opinion handed down November 30, 1896.
    Rehearing refused January 4, 1897.
   The opinion of the court was delivered by

Miller, J.

The defendant, convicted of shooting with intent to murder, moved in arrest of judgment, on the ground that Sec. 792 of the Revised Statutes, under which he was indicted, had been repealed by the Act of the Legislature, No. 59 of 1896. The mofion in arrest of judgment was sustained, and the State appeals.

The Aci of 1896 repeats the language of Sec. 792 in defining the offence of assault with intent to murder, but while the section limits the punishment to two years, the Act of 1896 fixes the maximum imprisonment at twenty years. With this difference, the section and the act are the same constituting the offence. The act is entitled “An Act to Amend and Re-enact See. 792 of the Revised Statutes,” and the repealing clause of the act repeals only laws or parts of laws in conflict with it.

It is familiar that the repeal, pending the prosecution, of the statute on which the conviction is obtained divests all jurisdiction to sentence. Judge Martin’s reason for this conclusion was that the repeal of the statute in such case carried the presumption of a pardon. State vs. Johnson, 12 La. 552. Where the statute is completely effaced by legislation, contemplating and effecting that purpose, it is to be accepted as manifesting the legislative will that the offence denounced by the previous statute shall no longer be deemed a crime. Can it be supposed in this case that the Legislature, by amending and increasing the punishment of assault with intent to murder, intended thereafter that an assault of that character should not be punished at all? If the key to the interpretation of statutes is the intention that prompted the legislation, it must seem difficult to attribute to this Act of 1896 the construction affirmed in the motion of arrest.

When the Legislature, dealing with an offence under a pre-existing statute, has defined the offence in terms the same, or with additions or qualifications not in the original act, the later legislation repealing all laws on the same subject matter, it has been held that the previous statute is completely repealed, and there is no power to sentence under the conviction for an offence committed before the later legislation. State vs. Clay, 12 An. 431; State vs. O’Conner, 13 An. 486. The legislation, in part, at least, the subject of these decisions, was revisory. In other decisions, in respect to legislation of this character, it was held that no purpose to disturb prior legislation could be predicated on the mere transfer of the provisions of the previous statute into the codification designed only to 'exhibit the entire statute law, although the codification contained the repealing clause or all laws on the same subject matter. It was only when the codifier had omitted some part of the old statute, that a repeal was to be admitted, and then only as to the omitted provision. On the same line, however, new legislation on the same subject, essentially different from that in the previous legislation, would affect a repeal. Holmes vs. Wiltz, 11 An. 439; State vs. Brewer, 22 An. 273. It is perfectly manifest that this Act, No. 59 of 1896, is revisory in its character, for the purpose of changing the maximum punishment for assault with intent to commit felonies. Under the revised statutes that maximum was two years. The legislative judgment evinced by the Act of 1896 was that the maximum for so serious a crime should be increased to twenty years, the act so declares, and that is the only change. Consistently with the decision as to revisory legislation, it would seem difficult to maintain that this act of 1896, repeating the Sec'. 792 of the Revised Statutes, changing only the maximum of punishment, repealed all laws to punish murderous assault. Then, too, where, as in the cases cited, repeals have been inferred, there has been a complete obliteration of the earlier by the later statute — that is, a repeal of all laws on the same subject matter. In such cases the conclusion of the repeal of the previous statute is constrained by the force of the sweeping repeal. No such repeal could well rest on the presumption of the legislator to release the offender from prosecution under a pending indictment. Re-enacting the statute defining and punishing the crime certainly does not convey the significance thalj the legislative intent was there should be neither crime or punishment. Our courts have gone far enough it would seem in some of the cases cited implying repeals. We do not feel at liberty to hold in this case that all law to punish offenders in custody at the date of the act, has been swept from the statute books merely because the Legislature has seen fit to increase the punishment for the crime. The act of 1896 does not repeal all laws on the same subject matter, but only laws in conflict with it. The act of 1896, in our view, keeps in force Sec. 792 in all its parts, save that as to offences committed after the act; the sentence may be kept up to the maximum, of twenty years.

It is therefore ordered, adjudged and decreed that the judgment of the lower court, sustaining the motion to quash, be and it is hereby set aside and annulled, and that the court proceed to sentence the accused.


text:
    No. 12,180.
    S. W. Vance vs. First National Bank of Shreveport.
    Interest in excess ol legal interest was deducted from an account though closed.
    Other items charged in error were deducted.
    Values, held as collateral security, transferred to third persons by the creditor, it was held, should be returned, or their value deducted from the amount of the creditor’s claim.
    A PPEALfrom the Second Judicial District Coart for the Parish o'f Bossier. Wathins, J.

      Leonard & Randolph and F. G. Thatcher for Plaintiff, Appellee.

      Wise & Herndon for Defendant, Appellant.
    Argued and submitted June 5, 1896.
    Opinion handed down June 20, 1896.
    Rehearing refused January 4, 1897.
   Statement of the Oase.

The defendant brought suit to foreclose a mortgage.

The plaintiff obtained an injunction on the ground that he was not indebted to defendant’s transferee.

The notes secured by the mortgage were past due on the day of transfer to the defendant. They are subject to the equities the plaintiff might have pleaded against the original holder.

The mortgage by the defendant was executed in favor of a merchant who had made advances to the plaintiff. He also transferred a second note, secured by mortgage on other property, and a deed of trust to lands in Arkansas, as collateral security. The merchant, holder of these values, transferred them to his creditors.

The merchant transferred to the defendant, as collateral security, the mortgage and notes identified with the act of mortgage. In the account interest had been computed at twelve per cent.; besides the merchant had, in error, charged the plaintiff with items of indebtedness he did not owe. The accounts between the plaintiff and the merchant had been acknowledged by the former.

The mortgage was executed with the view of obtaining advances, and the parties did not transact with any special intention of securing the amount.

The court reduced the interest from twelve per cent, to five per cent., although the plaintiff had a number of times, at different dates, acknowledged that the account rendered to him was correct.

The items erroneously charged were deducted from the account, and, consequently, from the amount of the mortgage, which had been executed in favor of the merchant, the original transferrer to the defendant. 1

With reference to the collateral deposited by the plaintiff with the merchant, and by the merchant transferred to third persons, the court held that their yalue should be fixed and credit given to the plaintiff of the amount of this value.

To the merchant or his transferee the defendant was reserved the right of surrendering the notes and deed of trust, and upon that surrender, they, or either, to be relieved from the necessity of having the claim reduced on account of the notes and deed of trust outstanding.

If, on the other hand, the defendant or the merchant did not produce and surrender the notes and deed of trust, then, in that case, the value was to be ascertained and the defendant or the merchant was to be charged with the value so ascertained.

The injunction was dissolved and a decree rendered in accordance with the court’s opinion.


author: McEnery, J.

text:
    No. 12,288.
    State of Louisiana vs. Fulgence Chiqui.
    There are no Indians in Louisiana under the protection oí the Federal Government, living on reservations set apart for them by that government, maintaining tribal relations. The State courts therefore have jurisdiction over them for offences committed by them.

      A PPEAL from the Tenth Judicial District Court for the Parish of Avoyelles. E. N. Cullom, Jr., J.

      M. J. Cunningham, Attorney General; Phanor Breazeale, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellant

      L. J. Ducoté for Defendant, Appellee.
    Submitted on briefs November 21, 1896.
    Opinion handed down December 14, 1896,
    affirming the decision of lower court; a rehearing was applied for and granted, and the opinion on rehearing handed down January 4, 1897.
   The opinion of the court on rehearing was delivered by

McEnery, J.

When this case was submitted there was an agreed statement of facts, upon which the opinion and decree were based.

The case went off on the admission that the Tunica Indians were on a reservation set apart for them by the Federal Government, maintained tribal relations, etc. This was a statement of an historical fact that had no foundation for its assertion,

The following correspondence shows that the Federal Government has not set aside any reservation for Indians in Louisiana, and has no Indians under its protection in the State:

“Department op the Interior, \ “Office of Indian Affairs, Washington, December 9, 1896. j
The Honorable the Secretary of the Interior:
“Sir — I have the honor to acknowledge the receipt, by your reference for consideration and report, of a letter from Judge S. D'. McEnery, of New Orleans, dated December 23, 1896, requesting information concerning the relations of the Tunica Indians with the Federal Government, it being claimed that the remnant of this tribe is now located on a reservation situated in the parish of Avoyelles, set apart for them by the Federal Government.
“ In reply, I -have the honor to report that this office does not have any knowledge of any land in Louisiana set apart for Tunica or any other Indians for an Indian reservation.
“There was presented to Congress on the 19th of February, 1806, a report of Lewis and Clark of their expedition to explore the Missouri river and to enter into conference with the Indian nations on their route, etc., etc. With this report was submitted ‘ Historical sketches of the several Indian tribes in Louisiana south of the Arkansas river, and between the Mississippi and river Grande,’ by John Sibley to the Secretary of War. This reference is made relative to said Indians:
‘ Tunicas. — These people formerly lived on the Bayou Tunica, above Pointe Ooupee, on the Mississippi, east side; live now at Avoyelles; do not at present exceed twenty-five men. Their native language is peculiar to themselves, but speak Mobilian; are employed occasionally by the inhabitants as boatmen, etc.; in amity with all other people, and gradually diminishing in numbers.’
“See American State Papers, Indian Affairs, Yol. 1, p. 725.
“The Federal Government does not have jurisdiction over any Indians in Louisiana. If they have a reservation of land, it must have been granted or reserved to them by the State of Louisiana.
“ The letter of Judge McEnery is herewith returned.
“Very respectfully, your obedient servant,
“D. M. Browning, Commissioner.”

It is therefore ordered that the decree heretofore rendered in this case be annulled, and it is now ordered and decreed that the judgment appealed from be annulled, avoided and reversed, and that the case be remanded to be proceeded with in due course of law.


author: Watkins, J.

text:
    No. 12,293.
    Leon Joubert vs. Mrs. Susan A. Sampson, Thomas H. Sampson, Intervenor.
    When an appellee exercises'the privilege of filing a plea of prescription the party against whom it is opposed has the privilege of demanding that the cause shall be remanded for the trial of that plea.
    This court is without discretion to refuse such [application if made prior to the submission of the cause.
    APPEAL from the Oivil District Oourt for the Parish of Orleans. King, J.

      A. J. Villeré for Plaintiff, Appellee.

      W. (S'. Benedict for Intervenor and Third Opponent.
    Argued and submitted December 17, 1896.
    Opinion handed down January 4, 1897.
   The opinion of the court was delivered by

Watkins, J.

This is an executory proceeding to foreclose a special mortgage on real property of defendant, which was consented on the 12th of October, 1891, and Thomas H. Sampson intervened and claimed a large portion of the proceeds of sale under an alleged prior and ranking mortgage on the property.

The following extracts from the brief of the intervenor fully state his claims, viz.:

“The case came on for trial on the 18th of June, 1896, and note of evidence was taken. On behalf of plaintiff in intervention there was introduced an act passed before A. Pitot, notary, on the 24th of January, 1896, in which a release was granted of stock mortgages and claims for taxes paid, due to the Citizens Bank of Louisiana, and recognition in that act of the receipt of the same was had.
“ On the same day, the 24th of January, 1885, before the same notary, Pitot, there appeared the then two living heirs of W. R. Orane, who made an act of acknowledgment in favor of the intervenor, Thomas H. Sampson, of the receipt of the funds wherewith to pay the said Citizens Bank stock mortgages and taxes due to date, from him, the said Thomas H. Sampson, and their recognition of his rights arising therefrom, and in which they declared that they obligated themselves in the event of the death of their mother, then the wife by second marriage of Thomas H. Sampson, to make no claim to the above described property as forced heirs of their mother until the amount paid by the said Thomas H. Sampson, out of his own personal funds and estate, as aforesaid, to free and release said property from the aforesaid taxes and privileges, shall have been duly paid and refunded to the said Thomas H. Sampson.
“The question before the court, as presented on the intervention of Thomas H. Sampson, is, that under Art. 2160 of the Civil Code, his advance to the Citizens Bank for its mortgages and taxes, and payment of other taxes, in a snm equivalent to ten thousand dollars, subrogated him to those rights, and that the same was made known to each and every party in interest, by the recordation in the conveyance office of the act of the 24th of January, 1885, in book 119, folio 952, on the 20th of February, 1885.”

Again:

“That it was apparent upon the face of the record of the Succession of William R. Crane and his will, and his acquisition of the property in contest, as well as of the act of acknowledgment in favor of Thomas H. Sampson, that Mrs. Susan A. Crane did not, by law, take under the will more than the law permitted her to have in and to the real estate owned by her deceased husband prior to his marriage to her. The forced heirship of three children surviving him, one of whom subsequently died without issue, and whose interest was inherited by the remaining two as well as the mother, showing upon the face of the record that at the time Leon Joubert, the mortgage creditor, loaned his money on the faith of that property, that the interests therein of Mrs. Susan A. Crane were not for an entire but only partial ownership, and hence that he can not take by his mortgage more than the law permits under the facts aforesaid; that is, the sale, if ordered to be made, to be restricted to one undivided half interest of Mrs. Crane in and to the property described, and that subject- to one-half of the sum of ten thousand dollars so paid, with legal subrogation, by Intervenor Sampson, on the 24th of January, 1885.”

This statement of the intervenor’s counsel amounts to this, that his case stands in the attitude of Newman vs. Cooper, 46 An. 1485. That William R. Crane, deceased, was, at the time of his death and before, indebted to the Citizens Bank, and that indebtedness was secured by a mortgage on the property in suit. That, at the request of two of his heirs, the intervenor paid the debt of their father and became legally subrogated to the rights and mortgage of the bank. That Mrs. Susan A. Crane, surviving widow, had neither the power or authority to mortgage the property to a greater extent than her undivided half interest.

On the trial of these issues there was a judgment in favor of the plaintiff in executory proceedings and against the intervenor, rejecting his demands, and the latter has appealed.

In this court plaintiff in executory proceedings filed a plea of prescription of five years, whereby he claims that the intervenor’s demand is cut off and barred; thereupon counsel for the intervenor moved this court to remand the case to the lower court for the purpose of taking testimony, and having that question determined contradictorily therein.

The provision of the Code of Practice is, that “prescription may be pleaded before the Supreme Court when the proof of it appears on the face .of the proceeding in the lower court. But the party to whom it is opposed shall have the privilege of demanding that the cause be remanded for trial on that plea.” Art. 902.

On the face of that article this court is without discretion in the matter.

It is therefore ordered and decreed that this cause be remanded to the court a qua for the sole purpose trying the plea of prescription — this appeal, in other respects, remaining in statu quo.


author: Milder, J. Nicholls, C. J. Breaux, J.

text:
    No. 12,279.
    People's Bank of New Orleans vs. George P. P. David et al.
    The heir who purchases at the sale, to effect the partition to complete his title . must pay the surplus of the price over the portion coming- to him when the amount due by him is fixed by the partition. Civil Code, Art. 1343.
    When such heir mortgages the property, theproces verbal of adjudication or act of sale to him showing non-payment of the price, the mortgagee will be deemed apprised that the title of the co-heirs entitled to the payment of the price so that they may get their shares, is not divested, and the mortgage will be treated as operative only to the extent of the mortgagor’s ownership of the property as heirs, not enlarged by the incomplete partition.
    The court distinguishes this case from the line of decisions that uphold mortgages acquired in good faith upon the faith of complete titles spread on the records. 1 An. 208; 4 An. 84; 45 An. 1085; 48 An. 1160.
    Nicholls, O. J., and Breaux, J., concur in decree.
    A PPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      E. Howard McCaleb for Plaintiff, Appellant.

      Merrick & Merrick and Gus. A. Breaux for Louis Leon, Tutor of Agnelly Minors, Appellees and Appellants, praying for nullity, etc.
    Argued and submitted December 8, 1896.
    Opinion banded down January 4, 1897.
   The opinion of the court was delivered by

Milder, J.

This is an appeal by the plaintiff from the judgment sustaining the intervention of the minor heirs of Joseph David, claiming to be paid their shares out of property of the succession alleged to have been acquired in the partition proceedings by the major heirs of the deceased, afterward mortgaged by them to the plaintiff, the proceeds in controversy being derived from the sheriff’s sale under plaintiff’s writ of seizure and sale.

The deceased, Joseph David, left several major heirs, one minor child and the children of his predeceased daughter, these grandchildren, represented by their tutor, being the intervenors. Shortly after the death of the deceased partition proceedings were instituted, the partition was decreed, and there was the usual reference of the parties to the notary. Under the advice of the family meetings, the private sale of portions of the property was authorized, and the residue, mainly real estate in this city, was sold at auction, the major heirs becoming the adjudicatees. No portion of the price was paid, each act of sale reciting the price was to be accounted for in the partition proceedings. The subsequent proceedings before the notary were the settlement of the accounts, the formation of the active mass, the deductions to be made and the ascertainment of the distributive shares of the heirs, that of the intervenors being fixed at sixteen thousand and forty-five dollars. No cash was paid by the purchasing heirs, and hence none was distributed in the partition proceedings, but the statement is made by the notary that the liability of the heirs by agreement is to be settled “outside the partition.” By the terms of the partition the major heirs were treated as owing the amount of the adjudication, or so much as was requisite to pay the shares of the minor heirs. The partition was homologated. Subsequently, the major heirs, who had purchased but never paid the amounts of the adjudications, mortgaged the property to the plaintiff, and under the bank’s writs, as already stated, the property was sold and the proceeds realized.

The intervention of the minors alleges in substance the invalidity of the partition proceedings, because the major heirs never having paid the price, there was no distribution or completion of the proceedings; hence the title of the minors in the succession property was never divested; that the plaintiff had knowledge of the defect in the proceedings, that its mortgages are void as respect the minors and the prayer is that the minors be decreed entitled to receive their distributive shares from the proceeds. The plaintiff excepted to the intervention on various grounds not discussed here, and the exceptions overruled, answered in substance, setting up the partition proceedings, averred that the assets, so far as they consisted in open accounts and bills receivable, purchased by the major heirs at the partition sale, were not collected; that the entire property of the succession was not more than sufficient to pay the debts; that all the heirs guaranteed, minors included, the debts jdue the succession and bills receivable; that the major heirs have paid all the succession debts and have paid the minors all due to them. The judgment of the lower court maintained the oppositions to the extent of directing the payment to the minors of one-eighth of the proceeds. There is an answer to the appeal, praying that'the amount awarded be increased to the full distributive share of the minors fixed in the partition.

The argument on behalf of the bank maintains that the mortgage, having been acquired on the faith of the recorded titles of,the major heirs, is not affected by any irregularities in the partition, or frauds of the major heirs; and it is insisted, in view of the duty of the tutor to protect the rights of the minors in the proceedings, the recourse of the minors should be on him and not against the bank, the mortgagee in good faith.

As we think the good faith of the bank in acquiring the mortgage notes is unimpeached, we have been solicitous to find the basis for extending to it the protection invoked by the argument. The nature of the title on which the bank’s mortgage depends confronts us at the outset. That title, spread on the public records, explicitly states the non-payment of the price by the major heirs. In effect the title was the recital of an adjudication and the unfulfilled obligation of the major heirs imposed by that adjudication. If this purchase by the heirs, without one dollar paid under it, is to be deemed sufficient to vest title in the purchasing heir, it must occur that notwithstanding the partition exacted by law and ordered by tne court, it would be in the power of any heir by simply procuring and recording an adjudication to himself to appropriate the entire succession property bp a sale or mortgage, and thus defeat the law and the order of court for an equal partition among all the heirs. It is true such a result would doubtless, be averted by recording the prooes verbal in the manner requisite to preserve the vendor’s privilege, but the heir, desirous of securing to himself the succession property, could obtain this advantage and profit by the omission to record the privilege, if this theory of title without payment of the price is to be sustained. The grave consequences of maintaining this theory is made more impressive by its operation on minors, illustrated in this case, if the theory is maintained, of the loss to the minors of their entire patrimony claimed to result from the mortgage of the property by the major heirs, without payment by them of a dollar of the price, and that non-payment, announced in the act, spread on the public records and notie to all.

The Napoleon Code gave the co-heirs a mortgage on the property sold to effect the partition for the payment of the price of the Imitation, as wellas to secure the return which by the partition one heir is to make to theother. Code Napoleon, Arts. 833, 2109. That Code required the registry of this mortgage within a fixed period, or the mortgage was ineffective. Formerly, our laws gave a similar mortgage, but there is none now, of the co-heirs, arising out of the partition proceedings, except that given by Art. 1333 of the Code, and that must be recorded to affect third persons. The mortgage under Art. 1333, restricted to the return of money the heir is to make, is not as broad as that given by the Napoleon Code. The deduction of the argument for defendant that the minor heirs had no mortgage for their distributive share when the bank took its mortgage note, is clear without reference to the Napoleon Oode introduced in the argument for illustration. Assuming that the privilege of the vendor on the immovable sold applies in favor of the heirs, for none is given to the heirs specifically, it follows, too, there was no privilege, for none was recorded. 0ml Code, Arts. 3271, 3274, amended by Act No. 79 of 1879. In our view the contention of the bank is sustained that, the minors had no mortgage or privilege.

The defendant contends with great earñestness for the protection given by law to mortgages accepted on the faith of recorded titles. This protection has been of frequent recognition. Succession of Ashbridge, 1 An. 208; Boudreau vs. Bergeron, 4 An. 84; Broussard vs. Broussard, 45 An. 1085; Thompson vs. Whitbeck, 47 An. 49; Lacassagne vs. Abraham, 46 An. 1160. If the acts of sale to the heirs who granted the mortgage had announced the completion of the partition, including the payment of the price or settlement of the distributive shares, the most essential part of the proceeding; or if the acts had contained the recital that the property mortgaged had fallen to the heirs making the mortgage in settlement of their ¡shares; or if in the acts there occurred any expression of completion of title, such acts, signed by the proper parties, placed on record, 'would present the controversy in 3, far different phase. The title of Tecord here gave notice that the mortgagors were the heirs of J. P. David, and heirs, as it is determined in the cases cited by defendant, none the less take by inheritance through purchasers at ¡sales to effect partitions. Troxler vs. Coller, 33 An. 431; Kernan vs. Baham, 45 An. 799. But the act also gave distinct notice that the ¡price of their purchase had not been paid, and under the law all are .apprised that the purchasing heir must pay the price as soon as the amount due by him is fixed by the partition. Civil Code, Art. 1342. In the case from 35 An. 546, Wade vs. Murray, the creditor took his mortgage on property which, as well as we can understand the case, had been bought by the tutor of minor heirs, the tutor himself being a co-heir. The suit was brought on behalf of the minors for the resolution of the sale, on the ground ¡they had not been paid their shares The court decided the resoluttory condition did not apply to a partition sale, and maintained the ¡title of the purchaser who bought on the faith of the mortgage by ¡the co-heir who had acquired at the partition sale. In that case the purchaser, at the partition sale, was entitled to receive all that was due to his minor children; and the law deemed that payment accomplished when he bought. The payment was in legal contemplation the accompaniment of the purchase; that payment the act on the public records announced. The court, in the opinion, states ¡the purchaser was the debtor entitled to receive, as. tutor, that which lie, as purchaser, owed his children. On the faith of that title the •court maintained the mortgage the purchaser gave. The difference between that and the case here is, we think, obvious. Here, the title of the purchasing heirs shows the non-payment of the price, not as in the case of Wade, that payment accomplished. It imports the reverse. We pass then from the argument that seeks to support the mortgage, by the citation of the line of decisions maintaining rights acquired on the faith of titles exhibited by the public records, conveying ownership.

When the deceased leaves two or hiore heirs they hold the property of the succession in common. The definitive partition makes a change. The division in kind gives to each the title to that portion-allotted to him. The sále consummated to effect that partition has-the effect of passing title to the purchaser. If the purchaser is not-the heir he completes title by paying the price at once. If an heir,, he is to make payment, deferred, however, until the partition proceedings, and his share in the succession property is fixed. In either case payment of the price is exacted. Oan we then hold that the purchase by the heir, subject to his obligation to pay the price, conferred title, though no price was paid. The court conducting the partition proceedings undoubtedly, can compel a fresh adjudication, if the purchasing heir fails to pay the price essential to effect the partition contemplated by the sale. The purchasing heir holds under that obligation weaved by the law into the right he acquires under the adjudication. Oivil Code, Art. 1343. If without that payment he undertakes to mortgage or convey, it is difficult to perceive he conveys any greater right than he possesses. ' The minors owned one-eighth of the property. The mortgage by six of the heirs was operative on their interest. But it is our conclusion the purchase by them of the minor’s interest, unaccompanied with payment of the price, did not divest their ownership, and their undivested interest was announced by the title in virtue of which the mortgage claimed by the bank was granted.

It is strenuously urged, on behalf of the bank, that the recourse of the minor is on their tutor forfailure -to record their claims. The law gives them no mortgage. There was, therefore, none to record. If it is intended by the argument to affirm, the tutor should have recorded the acts of sale to the major heirs as privileges, conceding that the privilege given to vendors exists in partition sales, we can hardly see our way clear to shield the bank from responsibility when the act of sale, in our view, on its face, announced that the mortgagor had title to only six-eighths of the property; that was the extent of their title by inheritance not enlarged by an uncompleted purchase.

It is urged by defendant that the partition and its homologation precludes this claim of the minors. If the price of the property had been paid, and the complaint was as to its distribution, it might well be .insisted the homologation of the partition confined the minors to the appropriate proceeding to annul the partition. But the price never having been paid, the partition does nob deal with the fund that should have been derived from the sales and distributed. We do not perceive any objection to the demand of the minors because of the partition and its homologation. The exceptions of res judicata based on the homologation of the partition, and that the lower court had no jurisdiction, do not strike us as capable of support, and have not been pressed. In the oral argument, if our appreciation is correct, there was the suggestion that the amount the minors should have received in this partition had been invested for them in the stock of a corporation organized by the major heirs. If this was done with the sanction of their tutor, we could not recognize that method of discharging the obligation of the major heirs of paying the price out of which the minors were to receive their distributive share.

We are asked on behalf of the minors to increase the judgment to the full amount of the distributive share of the minors fixed by the partition proceedings. This would be bo treat the partition as final, and to enforce as a debt due by the major heirs the distributive share of the minors fixed by the partition. It is clear we can not deal with any personal liability of the major heirs on an opposition claiming the proceeds of the property. Nor can we give effect to any such debt on the theory that it is secured by privilege or mortgage, for neither exists. The judicial sale from the proceeds of which the minors seek to be paid was made under the mortgage by the major heirs. With neither privilege or mortgage their opposition affirms that sale, and all they can claim is their interest in the proceeds, i. e., to the extent of one-eighth as heirs, irrespective of an attempted partition, which, in our view, did nob divest their interest. For the debt due them by the major heirs, arising out of their appropriation of other assets of the succession, it seems bo us redress must be sought in some other mode. The only standing the minors have in this proceeding is as that of coproprietors seeking as such to be paid bo their interest out of the proceeds of the common property sold under the mortgage granted by the other co-heirs. That was the relief given by the judgment of the lower court, and we think it is the measure of all that can be claimed in this proceeding.

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

Concurring Opinions.

Nicholls, C. J.

I concur in the decree. Where a piece of property belonging to a' succession is sold for cash at a judicial sale made to effect a partition among the heirs, and it is adjudicated to the major heirs, who, instead o£ paying the purchase price, retain the same under the right accorded to them by Arts. 1343 and 2625 of the Civil Code, I think the title passes, but that the ownership acquired .is an “imperfect” not a “perfect” ownership. The ownership becomes perfect only wh.en the purchase price has been settled for between the heirs. “Imperfect ownership” (says Art. 492 of the Civil Code) “ only gives the right of enjoying and disposing of property when it can be done without injuring the rights of others — that is, of those who may have real or other rights to exercise upon the same property.”

A person taking a conventional mortgage upon property held by another under the circumstaaees above stated, takes it cum onere. His mortgage rights are subordinated to the payment or settlement of the price by the adjudicatee.

I think the rights of the co.-heirs upon- the property exist independently of a technical right of mortgage or privilege. It is a right inherent in the property affecting the very tenure itself of the ownership, which is not affected by omitting to record (or cause to be reinscribed when once recorded) in the mortgage records the procea verbal by which the price was retained. As stated in the succession of Canonge, 1 An. 210: though the right be one neither of mortgage nor privilege, it is “ another right equivalent in many respects to that of mortgage in others superior for the purpose of securing the amount due.” C. C. 2010, 2011, 2012, 2013, 2014, 2015.

Breaux, J.

In regard to the effect of the adjudication I concur with the Chief Justice, and in all other respects I concur with the opinion of JUSTICE MILLER.