author: Manning, O. J. Spencer, J.

text:
    No. 7265.
    Herminie Freret vs. Heirs of J. P. Freret. Rule of Heirs to erase mortgages—Opposition of judgment creditor.
    A succession is terminated when, all the debts appearing to have been paid by a final account of its administrator duly homologated, the heirs shall have been put in possession of the hereditary effects by a judgment of court.
    Or when, the debts not being all paid, and the account of the administrator’s actual gestión being duly homologated, the heirs nomine obstante are put in possession bv a judgment of court, in which case each heir is liable to the creditors for his virile share.
    A succession being thus at an end, the heirs are owners in common of the hereditary effects, and the Second court of New Orleans, being a court of Probates only, is without jurisdiction of a suit for their partition.
    Woolfolk v. Woolfolk, 30 Annual, 139 approved.
    Heirs of age, who have been put in possession of the property of their ancestor by a judgment of court, can sell their hereditary property, but such sale will not disturb or affect the mortgages of their ancestor, nor those existing against the individual heirs.
    ^PPEAL from the Second District court of Orleans, Tissoi, J.

      Ogden & Hill and Lancaster for tile heirs. *

      Seghers for the Opponent creditor.
   The opinion of the court was delivered by

Manning, O. J.

James P. Ereret died in 1869, leaving a widow and thirteen children, three of .whom were minors. In 1875, all the heirs being then of age, they petitioned the Second Court of Orleans for recognition as heirs, and to be put in possession of his estate, and requiring the widow, who was the representative of the succession, to file an account. This suit was filed October 1st. and judgment was rendered on 5th. of same month, recognising the petitioners as heirs, and ordering that they be placed in possession of the property. Nothing was decreed touching the prayer for an account.

On the 8th. of the same month, Herminie, one of the heirs, brought an action against her co-heirs and the widow for a partition, alleging that her mother had formally waived and renounced her rights as usufructuary (all the property was community), and that the heirs “have been recognised as such by the proper court, and placed in possession of the estate of their father,” and concludes with the averment “ that she is unwilling longer to hold said property in common, and therefore prays that the parties” be cited, and a partition be decreed. Each defendant took the trouble of filing a separate answer, all admitting the correctness of the plaintiff’s allegations, and joining in the prayer for a partition. Judgment was rendered November 3, 1875, beginning with the recital “the court considering the pleadings and the evidence, from which it results that the parties to this suit are owners in common of the property described in the petition,” and concludes with a decree for partition by licitation, the experts having reported adversely to one in kind. .

Pursuant to this decree, a public sale was made December 21,1875, by the auctioneer, and the widow bought the whole property, the sum total of the several adjudications being forty-one thousand five hundred and one dollars. On the 21st. of the following month, the formal Act of sale before a notary was made by all the heirs to the purchaser, reciting that, in obedience to the judgment of partition, a public sale of the property had been made by an auctioneer, and “ in order to furnish to the purchaser an authentic deed of conveyance of the property thus, adjudicated to her,” they then and there transfer the title to the widow Ereret.

This notarial Act goes on to recite that, “whereas the estate of the-late James P. Ereret is indebted in the following specified sums, as per tableau filed in court in the matter of the succession of J. P. Ereret, the said widow Ereret, as purchaser, assumes personally the payment thereof in reduction of the price of the present sale,” and furthermore recognises and assumes the mortgages which may secure those debts, which-are then set forth seriatim. They amount to $15,300.00. There was due to the widow for paraphernal funds, and for the balance due her on her account of her administration filed in court, $9,014.98, and the residue of the purchase price was therefore $17,180.02. Half of this belonged to the widow in community, for it must be noted, that the property, which was sold, was not the undivided half that belonged to the deceased, but the whole and entire property which was owned in common by his heirs and his widow in community. The remaining half, divided among thirteen children, gave $661.00 as each one’s portion of the purchase price.

Prior to the filing of either the petition for recognition of heirs, or the suit for partition, and evidently as a preparatory step thereto, the-widow had prepared the final account of her administration, and on the-day previous to the actual filing of the first, had sworn to its correctness. And that this is the final account, and that it was approved by all the heirs, is shewn by the fact that the sum stated by them and by her before the notary in January, as being due her “ as per account filed-in court by her,” corresponds exactly with the sum stated as a balance due her in the account, sworn as correct on September 80, 1875. It is-twice mentioned in the notarial Act, — first as “ the tableau filed in court in the matter of the succession of James P. Ereret,” as containing statement of the debts, and second as “ the account filed in court.” And this explains the omission in the decree of any order to file an account. It evidently was waived because they who had called for it had been furnished with it. The whole proceedings were conducted contradictorily in form, but manifestly only-nomiually, and they not only knew of the final account, but supposed it had been filed in court, and so stated before the notary — they treated it as a finality and as being correct, and they were all majors. But it had not been filed in court, and was not until seventeen days after the notarial act of sale was passed, i. e. on February 7,1876. A creditor of two of the heirs, claiming to be ■owner of their shares of their father’s succession under a judicial sale, opposed the account. It was homologated so far as not opposed two weeks afterwards, i. e. February 21st, and the. claim of ownership was unsuccessful. Hickman v. Freret, 30 Annual, 1067. No other homologation was ever sought, and none was needed.

In July 1878, shortly after the decision of the case cited above, the heirs and the widow and purchaser, moved a rule on three persons, who had judicial mortgages recorded against two of the heirs, and upon the Recorder of mortgages, to shew cause why they should not be erased. That is the commencement of the contestation now before us.

Augustus F. Hickman is one of these three, and he answers the rule, alleging that the whole proceedings in and for partition are null, because the heirs had already been put in possession of the property, and the succession was therefore at. an end, and the Second court, being a court of Probate, was without jurisdiction. Thus we are brought face tó face with one of those questions of jurisdiction, which are vexatious without being useful — -upon which hinges the validity of ’protracted legal proceedings, and which after all involve no permanent legal principle, worthy to engage the intellect, but only a verbal construction, that is soon rendered of no service, by the adoption of another phraseology. It would be a boon to the bar, the bench, and to suitors, if the forum of jurisdiction could be fixed beyond dispute.

The object of our pains-taking, in making the foregoing connected narrative in detail, and by date, is now apparent. That the succession was ended by the judgment of October 5, 1875, and the heirs were thenceforward owners in common of the property of their ancestor is indubitable. The administratrix had rendered her final account, not to the court if you will, but to the heirs, who were masters of their own affairs, and no creditor of the deceased or of his succession interposed or objected. The heirs and the widow considered and treated that judgment as terminating the succession. Three days after it was rendered, one of them bases her right to a division of the property upon the fact that she and her co-heirs had been placed in possession of it, and as if designedly to exclude all idea of an existing succession, language is ■employed which is specially appropriate to persons who own property together — “she is unwilling longer to hold said property in common”— and the court bases its decree upon the ascertained result of the pleadings and the evidence, that “ the parties to this suit are owners in common of the property.” Afterwards, throughout the notarial Act, they speak of the succession as a thing apart. The source of their information of the debts, which the purchaser assumed, is stated to be a tableau filed in court in the matter of the succession of J. P. Ereret, and ns if to superabundantly exhibit the recognition of the fact that each one of these owners in common possessed in his own' right, however derived the title was, it is recited — “in regard to certain judgments recorded against Gustave J. Ereret and William P. Ereret (and two other heirs) either separately or in solido, the widow Ereret, having taken cognisance of said certificate (of mortgages) declares notwithstanding, that she consents to abide by these presents.”

The parties to the partition suit being thus owners of the property as joint-tenants, or coparceners, or in commo'D, had the probate court jurisdiction of the subject matter? We have heretofore held that it had not. Woolfolk v. Woolfolk, 30 Annual, 139. The counsel for the heirs observes, that “the final decision of that case turned on other points, and that in the actual decision, the point of jurisdiction did not an l could not come under consideration, consequently that the original opinion on that point becomes an obiter dictum.” And this, notwithstanding we said in that final decision, speaking of the original opinion ; — “in that opinion we held that the parish court was without jurisdiction ratone materias in the matter of the partition, for the reason that * * * there was no longer a succession to be partitioned. We see no reason at present to change our-opinion as then expressed.” Ibid. 144.

We propose however to examine it anew, and we are impelled the more readily to do this, because in several matters touching the jurisdiction of the Second Court of Orleans, we have disturbed the practice that has hitherto obtained. The conservatism of the Profession has justly attributed great force and sanction to the rule stare decisis, as embodying a principle that lies at the foundation of stability and order, and we have too much reverence for it to lightly disregard it.

Our Civil Code devotes a special chapter, in that part which treats of Successions, to the manner in which their judicial partition is made, arts. 1245 et seq. new no. 1322. The Code of Practice gives minute directions as to the mode of procedure in that class of partition suits, arts. 1020 et seq. But to say, there are no other kinds, is to ignore the history of our courts and the evidence furnished by our Reports, to say nothing of the positive provisions of our law. Two or more proprietois of a piece of property, who had acquired it by purchase, donation, cr other mode, are not condemned to a perpetual joint ownership of it. Hence we find the existence or the possibility of other kinds of partition •suits recognised, and provision made for them. In matters relative to. the partition of real property between several co-proprietors, the suit must be brought before the court of the situs of the property. Code Prac. art. 165. And in “ an Act relative to partitions,” not of succession property only, but of all property held in indivisión, provision is made for the forum when the property is in different parishes, and the partition is to be between two or more co-proprietors of one continuous •tract of land, (Sess. Acts 1855, p. 337 sec. 2. reenacting a law of 1832), while all partitions of successions must be made by the court where they have been opened. Code Prac. art. 164. par. 4.

The action of partition, regulated by the Civil Code, arts. 1250 — 1303 Inclusive, new nos. 1327 — 1381, is by express language the action for the partition of successions. The next Art. 1304 reads; — “All the rules established in the present section, with the exception of that which relates to collations, are applicable to partitions between co-proprietors of the same thing, when among the co-proprietors aDy are absent, minors, ■or interdicted, or when the co-prcprietors of age and present can nob agree on the partition, and on the manner of making it. But in these kinds of partition, the action must be brought before the judge of the ■place where the property to be divided is situated, wherever the parties' may be domiciliated.”

This article forms art. 1290 in the Revisal of 1870, being displaced. It applies the rules for succession partition, with a single exception, to those kinds of partition suits, where any of the co-proprietors were of certain classes, or without being of those classes, if they could not agree. All partition suits, other than those of successions and those above provided for, are placed out of the dominion of those minute exactions of details which the Code elaborates in the series of articles above cited. In other words, partition suits between co-proprietors, when they are present, or majors, or not interdicts, are not governed by the rules established in that section for the partition of successions.

So again, the law provided when heirs of a succession 'hold property in common, and wish to divide it, they may proceed in a certain way. Rev. Stats, sec. 2667. But this was found too narrow in its application. Why should not others than “heirs of a succession” divide common property in the same way ? And these words were stricken ■out, and in lieu of them were inserted, “ two or more persons, some or all of whom are minors.” Sess. Acts 1878, p. 47.

The counsel for the heirs endeavours to deduce from certain parts of the Code the idea that the common ownership of persons, who have inherited property, is but a continuation of the succession of the ancestor. Thus, though co-heirs have enjoyed their hereditary effects in common for an hundred years and more, without making a division, any of them can at any time sue for a partition, art. 1227 new no. 1304. In other words, if the succession was not partitioned while it was a succession, or if the heirs, after the succession had ceased to exist, refrained from dividing it for a hundred years, that should not perforce be a bar to ever dividing it. And again, if one of the heirs has enjoyed the whole succession, or a part of it separately' — or if each have possessed separately a part of it — for thirty years, then each, thus separately possessing, can successfully oppose the suit for a partition of the effects of the succession, art. 1228 new no. 1305. In other words, a prescription of thirty years can be successfully pleaded in bar of any new partition, when an heir has undisturbedly enjoyed a particular piece of property of a succession as his own. But although the heir can hold on to a particular piece of property under those circumstances, if all the others have possessed the residue of the succession effects in common, either of those can always provoke a partition of such residue, art. 1229 new no. 1306.

Successions cannot continue long. They are intended to be short-lived. Our law emphatically limited their duration to one year, and if necessity demanded their prolongation, required the executor or administrator to obtain special permission from the court to continue his functions another year. They now continue in office until the estate is finally wound up. And it would avoid infinite confusion and great ultimate loss, if the probate courts would uniformly enforce the requirements for early settlement, although their enforcement would sometimes occasion present and immediate losses.

And if they are not perpetual, our law would be singularly defective if it did not determine when they do end. Their termination is fixed at the time when, all the debts appearing to be settled by a final account of their representative, the heirs are put in possession of the hereditary effects by a judgment of court, or when, the debts not being all paid, and the final account of the representative of his gestión being homologated, the heirs, nemine obstante, are put in possession by a judgment. In that case, provision is made for the compulsory payment of the unsatisfied debts, for which each heir is bound for his virile share.

In this case, the unpaid debts, with their attendant mortgages, were expressly assumed by the purchaser of the common propeity, each heir, relieving himself to the extent of his share, of that virile contribution, the liability for which attached the moment he was put in possession. The succession ceased when the judgment putting the heirs in possession was executed, and the property thenceforth became their common property as owners, and passed to their vendee, subject to whatever rights creditors of each individual heir had acquired.

It is supposed, we infer from the tenour of the argument, that the nullity of the decree of sale made by the Second Court strikes the actual sale made by the heirs with an incurable infirmity. It is not so. The heirs were all majors. Irrespective of any judgment, they united in a sale of the property which they owned. They had a perfect, legal right to sell, and they did sell, but that sale did not destroy or affect tho mortgages a’ready existing against each of them. The creditor, with the lien resulting from recording his judgment, has the same recourse that he has against any other judgment debtor, who has made a voluntary sale of the property affected by such mortgage. Therefore,

It is ordered that the judgment of the lower court is avoided and reversed, and that the rule of the heirs and the purchaser is dismissed at their costs, and that the opponent have and recover of them the costs' of this appeal.

Concurring Opinion.

Spencer, J.

In my opinion the real question in this case is largely one of fact. There can be no possible doubt that the partition of successions must be sued for in the probate court. C. P. 1022,164

It is equally clear that of all other actions of partition, the probate court has no jurisdiction:

The question here is, was the property partitioned that of a succession ?

Plaintiff’s argument that, under articles 1292, 1304,1305 and 1306 of Civil Code, there is “a continuation of the succession, which does not lose its character of a legal entity, until broken up by subjecting its parts to individual dominion,” i. e. until partition, is, I think, inadmissible and refuted by the plain textual provisions of the Code itself.

As long as a succession exists, and maintains itself as a “legal entity,” nothing can be clearer than that its creditors are preferred upon its assets to the creditors of the heir; just as the creditors of a firm, a juridical being, have preference on Us effects over the creditors of the individual members of the firm.

The best test therefore of the existence or non-existence of a succession will be found in these texts of the Cede which determine the facts, conditions and circumstances which terminate the existence of this right of preference of succession creditors over those of the heir.

When a succession has been opened the law directs that, pending the deliberations of the heir as to acceptance, an administrator may be appointed. C. C. 1039,1040,1044.

If the acceptance is benefician!, the administrator necessarily proceeds with his administration. C. C. 1058.

If the acceptance by the heir is pure and simple, “ all the effects which compose the succession must immediately be delivered to him,”' he becoming responsible for all its debts. 0. 0. 1056.

To protect the creditors of the succession, the law gives them the-right, before the heirs take possession, to require of them good ancl sufficient security for the payment of their debts. C. C. 1011 and 1012. Even where this security has not been demanded, the creditors have three mouths, front the date of his acceptance and possession, to demand a “ separation of patrimony.” C. C. 1444, 1456.

“The effect of this demand on the part of the creditors of a succession is to cause them to be paid from the effects of the succession in preference to the creditors of the heirs.” C. O. 1446.

The right therefore of the unconditional heirs to the possession of the effects of the succession is undoubted. Where they demand possession, if there are succession debts unpaid, it is the duty of the administrator, if there be one, as representative of the creditors, to require of such heirs, under articles 1011 and 1012 0. C., good and sufficient security for the debts ; or the creditors themselves may so require. If this-has not been done, the creditors may within three months demand a-“separation of patrimony.” But it is clear that under these rules, if heirs of age be permitted to take absolute possession of the effects of the succession, and to mingle them with their own, the creditors of the succession lose their right of preference thereon and cease to be such— thereafter being only creditors of the heirs — and this for the simple reason that their debtor, the succession, as a “legal entity,” has ceased, to exist, and its patrimony has been lost, by merger into that of the heir. This I take to be the doctrine announced in Woolfolk vs. Woolfolk, 30 A. 139. I say therefore that the real question in this case is one of fact, to wit: Did the heirs of Freret, being all of age, under the order of couit, directing them to be put into possession, take real and actual possession of the effects of the succession ? If they did, the succession ceased to exist, and any suit thereafter brought for partition could not be entertained by the probate court, because there being no succession, none could be partitioned. After the succession was thus merged, and had ceased to exist, and up to the partition, the heirs were simply owners in common of the property. There was a community or joint ownership of the property, to which the rules of prescription, enunciated in C. C. 1304,1305, and 1306, are of course applicable.

I think the pleadings in the partition suit show and estop the heirs of Freret from disputing that they had taken actual possession before that suit was brought. I therefore concur in the decree of the court.

Mr. Iustice White dissents, and reserves his right to hereafter file his reasons therefor.


source: Caselaw Access Project

author: Marr, J. Manning, O. J. Spencer, J.

license: Public Domain

text:
    No. 6502.
    Joseph Jacob vs. Robert L. Preston. City of New Orleans, Appellant.
    Where an appeal is takon by motion neither petition nor citation is necessary.
    The district courts ol the parish of Orleans have but one term, -which extends from the first Monday in November to the fourth day of July; and an appeal maybe taken by motion in open court, at any time during that term, on a judgment signed during the term.
    The judgment making absolute a rule taken by a purchaser of- property at sheriff sale, to have certain mortgages and privileges on the property erased, is a definitive judgment, and must be signed by the judge.
    Where one of the parties to the suit takes a rule ou the other, raising certain issues, and the other party takes a counter rule, involving the same issues, and the rules are tried and decided together on the same day, and treatedby parties, attorneys, and the court as if consolidated, and an appeal is taken from the judgment of the court making the counter rule absolute, the appeal will not be dismissed on the ground that the judgment on the original rule not having been appealed from within a year, had aeauired the force of res adjudicatei.

    Tax liens, or privileges on certain property, which were not recorded at the time a third person aeauired rights to, or upon the prop )rty, can not be enforced to his prejudice, when it appears that such liens arose from a tax imposed before such third person aeauired his interest.
    j^PPEAL from the Sixth District Court, parish of Orleans. Saucier,

      JulienA. Seghers for plaintiff and appellee.

      Sam. P. Blanc, Assistant City Attorney, for city, appellant.
    The opinions of the court on the two motions to dismiss were delivered respectively by Marr, J., and Manning, C. J., and on the merits by Spencer, J.
   On Motion to Dismiss.

Marr, J.

The purchaser of real estate, at sheriff’s sale, took a rule on the city of New Orleans, and others, to show cause why the privileges and mortgages inscribed in their favor, respectively, should not be can-celled so far as they bear upon the property in question.

Prom the julgment, miking this rule absolute, the city of New Orleans took a suspensive appeal.

The appellee, Jacob, moves to dismiss the appeal on the grounds :

1st. That the appellee has not been cited ; and that the fault is attributable to the appellant, as no petition was filed or citation prayed for.

2-1 That the motion, upon which the order of appeal was granted, was not made at the same term of court at which the judgment was rendered.

31. That the judgment did not require signature; and no appeal could be taken therefrom after the lapse of ten days from its rendition.

Eir-t. The appeal was taken by motion, and neither petition nor citation was necessary.

Second. The right of appeal did not exist until the judgment was . signed. It was signed on the 13th November; and the appeal was taken on the 16th November.

There is but one term of the district courts in the parish of Orleans; and it extends from the first Monday of November to the fourth day of July, Act of 1869: and an appeal may be taken, by motion in open •court, at any time during that term, on a judgment signed during the term.

Third. The Oode of Practice, art. 546, requires the judge to sign all definitive or final judgments rendered by him: and art. 539 tells us that definitive or final judgments .are such as decide all the points in controversy between the parties.

The judgment in this case is definitive, final. It disposes of the entire controversy; and the law made it the duty of the judge to sign it. The motion to dismiss is without foundation in law ; and it is denied, with costs.

On second motion to dismiss.

Manning, O. J.

The appellee moves to dismiss the appeal herein -on the ground-—

“ That after the appeal herein granted, a judgment in the same suit, between the same parties, and upon the same matters in controversy, rendered on the 29th September, 1876, and signed on the 2d January, 1877, has become final, settling all the matters and things involved in this suit, which judgment now constitutes res judicata, having been rendered and signed more than a year ago, and no appeal having been taken therefrom.”

The facts are, on the 24th August, 1876, the City of New Orleans ■filed a rule in this suit, calling on plaintiff and the sheriff to shew cause why the City of New Orleans should not be paid her tax judgments and costs, out of the proceeds of sale, in preference to plaintiff.

On the 4th of September, 1876, the plaintiff filed a counter-rule, against the City of New Orleans and the sheriff (and other parties in interest,) which rule admits the city’s privilege and her right to be paid by preference, the taxes claimed by her for the years 1873 — 1876 inclusive, and denies that for the taxes of 1869, 1870 and 1871 she has any privilege, and asks that the city and the sheriff (together with other parties in interest) shew cause why the sheriff should not be authorized ■to have cancelled all mortgages and privileges on the property, except those for the city taxes for 1873 — 1876 inclusive, and certain State taxes. Both, rules were returnable, and were tried, on same day, together and upon same evidence, and were decided together and on same day. In other words, the parties, their counsel, and the court treated them as if they had been consolidated. They were in fact filed in the same case.

We shall follow their example, and hold that the city’s appeal from the judgment on the plaintiff’s rule is not dismissable because the same issue was decided in a simultaneous proceeding in the-same case. There was no occasion for the judge to sign another judgment in January. It cannot work harm to the appellant who had already done all that was necessary to be done to protect her interests. The motion to dismiss is denied.

On the Merits.

Spencer, J.

Mrs. Oazabat purchased in July, 1868, certain lots in New Orleans, and gave for part of the price her promissory notes, secured by mortgage and vendor’s lien. These notes came into the possession of Jacob. This mortgage was duly recorded in 1868. In February, 1872, Mrs. Oazabat sold this property to R. L. Preston for part cash and part on time, payable at certain dates, “-provided, however, that all the taxes, privileges, liens, and mortgages now standing against said property are erased and canceled from the records of the mortgage office, otherwise the payment of said sum of $8000 is extended until the full release and cancellation of said encumbrances and mortgages.”

In June, 1876, Jacob, as holder of Mrs. .Oazabat’s notes for the price, seized and sold the property,, and bought it. The city of New Orleans claims by third opposition the taxes of 1869,1870, and 1871 — all subsequent taxes being paid.

There was no registry of the delinquent city taxes of 1869, 1870', and 1871, in the mortgage office, until 1873, when the registry thereof was effected under and in accordance with the provisions of act No. 73 of 1872, relative to city taxes, approved April —, section 11 of which provides :

“ That all taxes due and unsettled' at the passage of this act, or hereafter becoming due, are hereby declared to be a lien and privilege upon the property assessed for the same, to have priority over all other liens and privileges.”
“ And against all other properties of the delinquent, they shall have the force and effect of a lien from the date of their being recorded in the mortgage office.”

The city contends—

First — That no registry is or ever was necessary in order to preserve tax liens.

Second — That if article 128 of the constitution be held applicable to tax liens, that it was inoperative as to city taxes, until put into operation by legislative act, which was not done until said act seventy-three of 1872.

Third — That the provisions of the constitution and Code, relative to registry, can only be invoked by third persons, and that neither plaintiff nor any other citizen is or can be a third person within the meaning of the law, quoad taxes.

Per contra, the plaintiff invokes art. 123 of the constitution, act No. 95 of 1869, and articles 3273 and 3274 of the R. O. 0., as well as act 42 of 1871, sec. 67.

We have read with interest the very able and ingenious argument of the Assistant City Attorney upon the nature and character of taxation ; and if we were permitted to consider the matter from a purely theoretical and philosophic standpoint, would be greatly inclined to adopt his views. But we think that the positive and plain provisions of our law do not admit of our resorting to theory and philosophy for the solution of the questions at issue. Since the adoption of the constitution of 1868 our legislation has all proceeded upon the idea, that registry was necessary to the prosecution of tax liens, and all the revenue laws of the State have provided for recording the delinquent rolls in the mortgage office. This court has frequently recognized the application of the registry laws to tax liens, and that can hardly be considered now an open question. 28 A. 496 ; 26 A. 592 ; 22 A. 278 ; 23 A. 270, 694, 695 ; 24 A. 25 ; 25 A. 232 ; 26 A. 80, 350, 351. If no one can be considered a third person, quoad a tax lien, as contended for by the city, then all this legislation touching the registry of such lien is meaningless and idle. If registry is only necessary in order to affect third persons (to which we all agree), and if there can be no third person, it would be foolish to provide for the protection of such an impossible class. We are not disposed to view the legislation in that light; and we hold that tax liens, which should have been recorded, but which were not recorded at the time a third person acquires rights to or upon the property, can not be enforced to his prejudice. Wo hold that, in such case, as to such third person, there is no lien, no privilege, for the taxes. The constitution, art. 123, expressly declares that “no privilege shall affect third persons, unless recorded.” The R. C. C., articles 3273, 3274, and 3347, are to same effect. These laws are mandatory and prohibitory. If it be true that until act 73 of 1872 no special mode of effecting a registry was provided for the city of New Orleans, does that fact enable us to disregard these prohibitions ? These were general laws, found in the revenue acts of the State providing modes of registering tax liens, and in the absence of special regulations, the city should have pursued them.

The question oí priority of registry can never arise between a privilege and a mortgage. If a privilege exists, it is, in its nature, higher than a mortgage, and must of necessity be paid before and in preference to it. C. C. 3186, 3187.

The only question that a mortgage creditor can raise is as to the existence of the privilege, since if it exists it primes his mortgage, being higher in its nature. Now our laws regard non-recorded privileges as non-existent, so far as concerns third persons. Hence no privilege for delinquent taxes, unrecorded when plaintiff’s mortgage took effect, exists as to him, so no such privilege, unrecorded at the dale Preston bought the property (in February, 1872), can be enforced against it in his hands. That was what this court decided in New Orleans Savings Institution vs. Leslie, 28 A. 496. The question there was, whether city taxes of 1868 and.1869, not recorded until 1873, could affect a mortgage given in 1871. The court properly held them without effect.

We must not be understood as holding that privileges, accruing from taxes levied subsequent to the registry of a mortgage, and which have been recorded before the rights of other persons have attached, can be subordinated to, or primed by, such mortgage. The fact that the registry of the mortgage antedates that of the privilege, is matter of no moment. If the privilege exists, and has been preserved by registry, it, by its nature, takes rank above a mortgage. The rule of the Code requiring the recording of contracts creating privileges, to be made on the day of the making of the contract, can not, in the nature of things, be applied to tax liens ; for they do not arise from contracts, but from facts and circumstances wholly independent of the will of the party. A registry of the delinquent roll, at any time, will preserve the privilege as against persons acquiring their rights prior to the imposition of the delinquent tax. But in this case R. L. Preston purchased this property and acquired his rights thereto subsequent to the imposition of the taxes sought to be enforced, and subsequent to the date when the delinquency should have been recorded. By the terms of his act of purchase, he acquired with reference to the existing recorded liens, privileges and mortgages. Where these two facts concur, to wit, where the right is acquired after the tax is imposed, and after the delinquency thereof should have been recorded, that right will not be affected by any subsequent registry. That would be giving to laws a retroactive effect, and divesting vested rights, in contravention of the constitution. This disposes of act 73 of 1872, which was passed after Preston purchased. It can not resuscitate and revive privileges that were inoperative when he purchased.

We see therefore that the city can not enforce these taxes against the property in the hands of Preston. As against the property in his hands it has no privilege, and the court below properly rejected its demands. The judgment appealed from is affirmed with costs.


author: Spencer, J.

text:
    No. 7360.
    The State of Louisiana vs. the Southern Bank.
    A banking corporation which organized in the year 1873 under the free banking law reenacted in 1870, is liable for the same license tax imposed on other banking institutions.
    ^PPEAL from the Sixth District Court, parish of Orleans. Bightor,

      Jas. G. Egan, Assistant Attorney General, and O. K Ogden for plaintiff and appellant.

      Edward Bermudes, Hornor & Benedict, and E. W. Baker for defendant and appellee.
   The opinion of the court was delivered by

Spencer, J.

This is a suit to recover of the Southern Bank a license tax of $250 for the year 1878, under paragraph 8, sec. 9, of act No. 8 of said year, which directs the collection of said license “ from each banking company or private bank or agency.”

The defense is, “ that the bank, being a free bank, organized in 1873, and doing business since then, as such, is exempt by the law regulating free banking in this State, under which it was formed, from the payment of any license whatever.”

There was judgment for defendant, and the State appeals.

The discussion has taken a wide range, far beyond the limits of this case.

We have nothing to do with the constitution of 1852, the free banking law of 1853, or the decisions of this court thereunder, except so far as the latter may discuss and decide analogous questions. It may be true, we are not called upon to question the proposition, that under the constitution of 1852 and act of 1853 the free banks were not liable to a license tax, for the reason that the State had by that act bound itself, as by contract, not to impose such tax. This court certainly so decided in New Orleans vs. the Southern Bank, 11 A- p. 41, and again in a similar case entitled the State vs. Southern Bank, 23 A. 271.

But in 1868 a new constitution was adopted, and in 1870 the free banking law was reenacted, and in same year other laws were passed upon, the subject of taxation of banks and banking. As we have seen-, the present “Southern Bank,” defendant hereiu, organized in 1873. The question for our decision is, whether, under the constitution and laws of this State, in force at the time of the organization of said bank in 1873, it was exempt from license taxes ?

The free banking act of 1870, found in the Revised Statutes, contains (see. 307) this provision :

“Bankers and banking companies doing business under this act shall be taxed upon their capital stock at the same rate as other personal property under the laws of this State.”

This is the same provision which the act of 1853 contained, and by virtue of which this court, in the cases cited from 11 and 23 An., held free banks to be exempt from license taxes. .

But by section 315, R. S., the very act under which exemption is claimed, and the third section of act 126 of extra session of 1870, it is provided that “ there shall be levied and collected ” an annual license tax * * * from each banking company or agency.

Article 118 of the constitution of 1868 reads as follows :

“ Taxation shall be equal and uniform throughout the State. All property shall be taxed in proportion to its value; to be ascertained as directed by law. The General Assembly shall have power to exempt from taxation property actually used for church, school, or charitable purposes. The General Assembly may levy an income tax upon all persons pursuing any occupation, trade or calling. And all such persons shall obtain a license as directed by law.”

These were the general laws in existence at the date of the organization of the defendant bank in 1873. They are all general laws of the State, and, bearing upon the same subject matter, must be construed together. Does there result from them a contract on the part of the State to exempt the defendant from license taxes? So far from such exemption resulting, we have seen that the 315th section of the very act under which defendant organized, imposes a license of a much larger amount than the one now demanded. We think therefore no such conclusion can be deduced from these laws; and if they do not confer exemption as upon contract, then the defendant may be compelled to pay license. Since we hold that there was no contract between the State and defendant, it is unnecessary to go into the inquiry as to whether under article 118 of the constitution the Legislature could contract to make such exemption.

The judgment appealed from is reversed, and it is now ordered and decreed that the State of Louisiana do recover of the defendant, the Southern Bank, the sum of two hundred and fifty dollars, with two per •cent fees due Attorney General and Assistant Attorney General for collection on amount of judgment, to be taxed as costs, and with recognition of the privilege aecorced bylaw on the property of said bank. It is further ordered that the injunction prayed for be made perpetual, •and that defendant pay all costs of suit.

Rehearing refused.


text:
    No. 7280.
    Henry White vs. Fifth Regular Baptist Church.
    'Where the judgment of the lower court dismisses the petition of the intervenor in the suit, and gives a decree in favor oí the defendant as against the plaintiff, and the plaintiff alone appeals, the intervenor will not be,before this court either as appellant, or appellee, and hence the judgment as to him can not be reviewed.
    REPEAL from the Eifth District Court, parish of Orleans. Rogers,

      Singleion & Browne for plaintiff and appellant.

      W. R. Crane for intervenor.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff sues to recover of the defendant corporation a note secured by mortgage and vendor’s lien upon the church-house ■and lot; also for other items, amounting to $174 40, to wit: Amount paid Heath for defendant’s account, $56 ; amount paid Popp & Elliott for lumber used on church, $68 40, and $50 for personal services in ■supervising its construction. He cites the defendant through W. H. Hawkins, president of the board of trustees, and its answer is a general d'enial.

Kemp, Anderson, and others, intervened, alleging that they are the-true board of trustees of said church; that Anderson is its president; that Hawkins and his board are usurpers, who, through fraud, and with the assistance and connivance of plaintiff as pastor of said church, in the month of May, 1873, seized upon and took wrongful possession of ■said church, and had themselves elected as trustees by a minority of the corporators, and in violation of the charter; and had since then excluded intervenors from said church, from participating in its affairs, ■and from worshipping therein, and had usurped the functions of trustees thereof, etc. They aver that by reason of these wicked and wrongful acts plaintiff has damaged them and the corporation in the sum of $5000, and that he should “respond to the corporation in exemplary ■damages (to said amount), as well as in religious excommunication.” Wherefore they pray to intervene and oppose plaintiff. They plead prescription against his demands. They pray for judgment in reconvention against him for $5000, and against the defendants, Hawkins’ board, declaring them usurpers; and recognizing intervenors as the true board, and putting them in possession as such.

There was judgment in favor of defendants, dismissing plaintiff’s demand as in case of nonsuit, and judgment dismissing the intervention and reconventional demand of the intervenors at their cost.

From this judgment, “so far as it rejects his demand,” the plaintiff has alone appealed. The intervenors have filed in this court what they call a “joinder, and answer in appeal,” but took no appeal themselves from the judgment dismissing their intervention and “ reconventional demand.”

This proceeding is, to say the least, anomalous. An intervenor of necessity must confine himself to the subject matter in controversy in the main suit. He can not drag into that suit grievances foreign to the thing there in controversy. If A sues B for the price of a horse, 0 can not intervene and set up by way of “ reconvention ” that A is indebted to him in damages for an assault and battery, and B for stealing the horse, (C. P. articles 389 and 390), and say that the intervenor may-join plaintiff in claimiug the same thing, or join defendant in resisting plaintiff’s claim to that thing ; or may oppose the claims of both to or upon that thing. The intervenor must of course allege and show an interest in the subject matter of the main suit. So far therefore as intervenors claim damages “in reconvention” from plaintiff for wrongful deprivation of church privileges, and so far as they seek a judgment against defendants to eject them from their office of trustees, and to have themselves reinstated, their demands are clearly foreign, not gernrain, to the matter or thing in dispute between plaintiff and defendant, which is simply whether the Fifth Baptist Church is or not indebted to plaintiff. But an intervenor is “ a third person,” whose demand “ must be formed by a petition,” served on the other parties, and put at issue.

Now', if the judgment of the court dismisses that petition, and the intervenor do not appeal, is he a party to an appeal taken by plaintiff from the judgment in favor of defendant, rejecting his (plaintiff’s) demand ? The judgment against the intervenor is not brought before us by plaintiff’s appeal from the judgment against him. See Lane vs. Clark, 27 An. 201; 8 L. 192; 1 R. 369; 4 An. 14; 14 An. 564. Intervenors are certainly not appellants. They are not appellees, because the judgment passing upon their demands has not been appealed from. If we were to consider them appellees, how could this court pass upon their issue with defendants, who are themselves appellees? A judgment can not be changed or revised as between appellees; and the very basis of intervenors’ interest in this controversy rests upon their alleged rights as trustees, which, could only be passed upon contradictorily with defendants.

We therefore proceed to decide this case as between plaintiff and defendants, who are the only parties before us.

Plaintiff has fully proven his demands,and shown that the amounts claimed are due him. There being no plea of prescription filed by defendants, we are not called upon to decide what effect should be given to the authentic acknowledgments of plaintiff’s claim by the acting board of trustees.

It is therefore ordered and decreed, that the judgment rejecting plaintiff’s demands be set aside and reversed, and it is now ordered and decreed that plaintiff have judgment against the defendant, the Fifth Regular Baptist Church, for the sum of two hundred and sixty-two 50-100 dollars, with six per cent interest thereon from January 21,1868, to 25th December, 1868, and eight per cent thereafter, with recognition of the mortgage and privilege claimed, and as described in plaintiff’s petition and acts annexed, and that the property therein desciibed be seized and sold to pay said sum and interest. It is further decreed that plaintiff also recover of said defendant the further sum of one hundred and seventy-four 40-100 dollars, with five per cent interest from 1st o£ July, 1877, and costs of both courts.


author: Marr, J.

text:
    No. 5972.
    Samuel Friedlander vs. Slaughter House Company.
    A corporation can not be held to knowledge of the ownership of eighty shares of its stock by any transferee of a certificate of that stock merely because he, through an agent, voted at an election, at which 12,475 shares voted in the affirmative, and 68 only in the negative.
    Where certain stock of a corporation, standing on its hooks in the name of a judgment debtor, is seized and sold by the sheriff as the debtor’s property, and a judicial tribunal, of competent jurisdiction, of last resort, after a fair contest, in good faith, by the corporation, orders the stock to be transferred to the purchaser under such seizure and sale, the corporation can not be liable to the holder of the certificated the stock, who took no steps to protect himself.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      E. Howard Farrar for plaintiff and appellant.

      Iiobert Mott for defendant and appellee.
   The opinion of the eoui t was delivered by

Marr, J.

In May, 1869, tbe defendant corporation issued to William Durbridge a certificate, No. 80, for 80 shares of stock, afterwards reduced to 40. In June, 1869, Durbridge sold this certificate to Samuel Eriedlander ; and signed a blank power of attorney on the back of it,' authorizing the stock to be transferred on the books, “ in the manner and form required by the said company.”

The certificate is as follows :

“ This certifies that William Durbridge is entitled to eighty shares of the capital stock of the Orescent City Live Stock Landing and Slaughter House Company, transferable only on the boolcs of the company by the said William Durbridge or Ids attorney, on surrender of this certificate,” dated 3d May, 1869.

Article six of the charter is as follows :

“ All transfers of stock shall be recorded in the office of said company, in a book of transfer to be kept ior that purpose. The new stockholder binding himself or herself, by the mere fact of recording said transfer, to abide by all the terms, conditions and stipulations of this act, and to any and all the rules, regulations or by-laws, made and adopted in pursuance thereof.”

The transfer thus authorized and required was never made; but it was proven that, on the 17th October, 1873, Harris, acting as agent for Eriedlander, voted on the certificate No. 80 at a corporate election.

In December, 1873, one Job Smith recovered judgment against Durbridge; and caused seizure to be made, under garnishee process, in the hands of the company. The company answered, stating, among other things, that Durbridge had owned 500 shares of common stock, and 330 shares of preferred stock, which the books of the company showed had all been transferred except 80 shares of common stock; and “ that for said 80 shares a certificate, being No. 80 of old issue, was issued to said Durbridge, and whether he holds or has disposed of the the same the company does not know.”

Appended to this answer is a statement of transfers made by and to Durbridge, at different dates, from May, 1869, to May, 1873, showing that the 80 shares still stood in his name on the books.

Such proceedings were had in the suit that judgment was rendered in favor of the seizing creditor against the garnishee; and the stock was sold by the sheriff, under execution, in February, 1874. On the refusal of the company the purchaser took a rule to compel the transfer ; and the company appealed from the judgment making the rule absolute. That judgment was affirmed in May, 1874 ; and in May, 1875, this suit was brought.

The petition alleges plaintiff’s ownership of the stock, in virtue of his purchase from Durbridge; that the company recognized him as owner by allowing him to vote on the same as owner, through his agent Harris, at the election of 17th October, 1873 ; that he has demanded that the transfer be made, and a new certificate be issued to him, on surrendering the original certificate ; and that the company refuses to comply with his demand, and to acknowledge him as owner. He therefore prays for judgment against the company, declaring him to be owner of the stock ; and that a certificate be issued to him, or that the value be paid to him with interest.

The answer sets out the proceedings in the suit of Smith against Durbridge, and the compulsory transfer by final judgment; and that the company has no stock to supply the place of that so transferred.

That the attention of the company was not called to the fact that Harris, as agent for plaintiff, had voted on the 80 shares ; that this vote did not change the result; and that the commissioners of election who received the votes had no power, by receiving or rejecting a vote, to “ make or unmake a stockholder.”

The answer also states that Eriediander never notified the company that he held the stock as owner, and he did not apply to have it transferred until after the sale by the sheriff. That pending the appeal, while the money bid was in the hands of the sheriff, the attorney of plaintiff was informed of the same, and that defendant would not make the transfer until compelled ; and that plaintiff took no steps to protect himself, but allowed defendant to be eoerced and compelled to make the transfer to the purchaser at the sheriff’s sale.

We fail to perceive any'legal or equitable right in plaintiff to recover of defendant. His right would have been clear if the company had made the transfer voluntarily, without the surrender of the outstanding certificate. The company was under no special obligation to plaintiff. He had never given any evidence of his ownership of the certificate except by voting through an agent, which he clearly had no legal right to do. The company was not obliged to recognize any one as the owner of stock except those who were shown to be owners by the transfer book, or by the act of incorporation. During the four 37ears which elapsed from the date of his purchase to the election in October, 1873, he had never asserted his ownership ; and the president and directors cannot be held to knowledge of the ownership of any transferee of a certificate merely because he, through an agent, voted at an election, at which 12,475 shares voted in the affirmative, and 68 in the negative. Harris, the agent, was himself a stockholder. The transfer book showed that Durbridge had sold 75 shares to him on the 17th March, 1871. He was a legal voter ; and there was no occasion to scrutinize the vote cast, where it was so nearly unanimous.

The answer of the company as garnishee was in accordance with the facts. The certificate had been issued to Durbridge, and the stock had stood in his name for four years and a half; and it still stood in his name. In preparing to answer under oath the president could not have been required, he would not have been authorized to recur to the minutes o£ an election. He was bound to consult the stock and transfer books ; and truth and justice compelled him to answer in accordance with these books, the only recognized evidence of ownership of the stock.

We must presume that the president answered truly that he knew nothing more of the certificate than is stated in his answer, and shown by the books, and if he had known, or had remembered, that one of the certificates originally issued to Durbridge, representing less than one-tenth of the shares which he originally owned, was held by plaintiff on the 17th October, that would not have indicated, necessarily, that he held it on the 24th December, when the garnishee process was served. If the president had known, when he filed his answer, that plaintiff held the certificate, he certainly should have informed him then, and have so stated in his answer ; but he would still have been bound to answer that no transfer had been made on the books of the company, as required by the charter and the certificate ; and that the 80 shares still stood in the name of Durbridge.

The argument of plaintiff’s counsel admits the notice through plaintiff’s attorney, pending the appeal on the rule. There was ample time for plaintiff to have protected himself. The judgment which compelled the company to make the transfer was not obligatory on plaintiff; it was res inter alios; and he might, as was done in Smith’s case, 30 An. 1378, have asserted his right, and prevented the payment of the money by the sheriff to the judgment creditor, and th.e transfer of the stock, to the purchaser.

The brief filed by the attorneys of the company, in opposition to the rule, shows that they insisted upon the terms of the charter and the certificate as good cause for not making the transfer until the certificate was produced and surrendered.

We see no reason to doubt the correctness of the views expressed in Smith’s case, 30 An. We think the sheriff cannot validly seize and sell the stock while the certificate is outstanding so that he cannot obtain possession of it. All that he could seize and sell in such case would be the right and interest of the person in whose name the stock stood on the books of the company, without prejudice to the rights of the actual owner aDd holder of the certificate for value, and in good faith. But where a judicial tribunal, of competent jurisdiction, of last resort, after a fair contest, in good faith, by the corporation, orders the stock to be transferred to'the purchaser under such seizure and sale, the corporation cannot be liable to the holder of the certificate, who took no steps to protect himself.

If there have been laches in this case, there has certainly been contributivo fault on the part of the plaintiff. Eor four 'years and a half he allowed his stock to stand in the name of another, without legal notice to the company of his-title and ownership. This may not impair his right as owner; but he cannot require the company to be more vigilant than he is himself, in asserting and maintaining his rights.

The judgment of the district court is therefore affirmed with costs.


text:
    No. 7293.
    James Gardiner vs. Succession of Scherer.
    Where a simulated sale has been set aside at the suit of a creditor of the pretended vendor, the creditor can not hold the pretended vendee in damages on account oí a depreciation of property, arising after the pretended sale, when he fails to show7 thattlie simulated conveyance caused the depreciation.
    An action for damages on account of an offense, or quasi offfnse, is prescribed by one year from the date of the act.
    ^PPEAL from the Second District Court, parish of Orleans. Tissot,

      Jno. S. Tally for plaintiff and appellee.

      James H. Grover for defendant, and appellant.
   The opinion of the court was delivered by

Marr, J.

In February, 1872, James Gardiner recovered judgment against Dezutter. Before this judgment was signed Dezutter, by notarial act, conveyed to Joseph Scherer, a house and lot on Bampart street. In January, 1873, Gardiner brought suit against Scherer and Dizutter to have the sale annulled, on the ground of simulation, and to subject the property to his judgment. Pending this suit Scherer died, it does not appear at what date ; and his widow, tutrix of the minor children, •administered the succession. The district court declared the sale to 'Scherer a simulation, and that judgment was affirmed by this court.

Under execution on the judgment in favor of Gardiner agaiDSt Dezutter, the property conveyed to Scherer by Dezutter was sold, and was •adjudicated to Gardiner ; and shortly after, in October, 1877, Gardiner brought this suit against the widow Scherer, in her capacity as tutrix, •to recover the difference between the price of the adjudication and the ■amount of the judgment against Dezutter.

The allegations of the petition are that there was no consideration for the sale; that it was simulated; and that Scherer combined with Dezutter to place the property beyond the reach of plaintiff’s execution •and accepted the simulated title, with full knowledge of this fraudulent ■purpose.

That “ if Scherer had not combined with Dezutter to commit this fraud, and had allowed the property to be sold in February, 1872, it would have brought more than was sufficient to cover petiti- ner’s claim, interest and costs; and by the illegal and fraudulent acts of Scherer petitioner has been prevented from collecting his whole judgment, and Scherer became responsible for the difference;” and that his succession, administered by the tutrix, is indebted to plaintiff for the amount.

The tutrix excepted that the petition disclosed no cause of action, which exception was overruled; and she plead the general denial. There was judgment in favor of plaintiff for $1900, the difference, in the judge’s estimation, between the value of the property in 1872, when the judgment against Dezutter became final, and the price of the adjudication, in May, 1877 ; and the tutrix appealed.

The injury complained of is the depreciation in the value of the property during the time that it stood in the name of Scherer, under the simulated title. It is not charged that the property was injured in any way during that time, nor that it was out of repair. The house was a brick dwelling ; and the depreciation is simply that which all real property in New Orleans has suffered, from the various causes which directly affect values, burdensome taxes, want of confidence, commercial disasters, etc., the results of ulterior causes, which have impoverished the people and the State.

This depreciation was not the necessary consequence of the fraudulent and simulated acts complained of. Under a different condition of affairs the property might have increased in value, so that it would have been worth double as much in 1877 as it was in 1872. Nor did the simulated sale necessarily cause plaintiff the delay of five years to which he was subjected. When his judgment became final, and the legal delay had expired, he might have caused execution to issue, and the property to be seized and sold, just as if that simulated title had never existed. If he had taken this course, Scherer would have been compelled either to have abandoned all pretension of right under his simulated title, or to have become the actor, at his own risk and expense, in judicial proceedings to arrest the sale, or to recover possession of the property.

Plaintiff chose not to exercise the right which the law gave him. He waited until January, 1873, nearly a year after Lis judgment became final; and then brought suit to have the simulated sale annulled, which he had the right and power to treat as a nullity ab initio.

In any aspect of the case, the alleged fraudulent conduct of Dezutter and Scherer, and the simulated conveyance, did not cause the property to depreciate in value. In January, 1873, when the plaintiff had such information as justified him in demanding judicially the nullity of the sale, his preference for that mode of enforcing his rights was the immediate and direct canse of tlie delay and expense to which he was ■subjected, which he might have avoided by the immediate seizure of the property. Non constat, if the property had been sold in 1872, or 1873, under execution, that plaintiff would not have been the purchaser, as he was in 1877 ; and that he would not have suffered the precise loss from, depreciation of which he now complains.

Defendant plead in this court the prescription of one, three and five years. It is evident that the right of action, if any exist in this case, does not result from any contract or civil obligation between Scherer and plaintiff, but from an alleged wrong; and whether that wrong be ■an offence or a quasi offence, it is subject to the prescription of one year. R. C. C. aft. 3536. This prescription began to run from the date of the offence. R. O. C. art. 3537. The offence was the fraudulent acceptance of the simulated title, on the 14th of February, 1872. If plaintiff had any legal foundation for such a claim, he might well have included in his petition to have the sale annulled, a demand for such •damages as he might sustain by the wrongful acts and pretension of Scherer; and have obtained judgment subjecting the property, with suspension of judgment for the damages until the amount could be fixed by the sale of the property. See Edwards vs. Turner, 6 Rob. 384, and authorities there cited..

We think the plaintiff was not entitled to recover, independently of the plea of prescription; and that the action was barred by the lapse of time.

The judgment of the district court is, therefore, annulled, avoided and reversed; and it is now ordered, adjudged and decreed that the demand of plaintiff, appellee, be rejected, and his petition and suit be dismissed ; and that he pay the costs in both courts.


author: White, J.

text:
    No. 6806.
    City of New Orleans vs. M. Hermann.
    A cigar manufacturer in the city of New Orleans, although engaged in selling articles of his own manufacture, is liable for the license tax imposed by the city.
    APPEAL from the First Justice’s Oourt, parish of Orleans. Childress, J.

      Sam. P. Blanc, Assistant City Attorney, for plaintiff and appellee.

      Chas. S. Bice for defendant and appellant.
   The opinion, of the court was delivered by

White, J.

The defendant appeals from a judgment condemning him to pay a license as a cigar manufacturer for the year 1877. He relies on section 3344 of the Revised Statutes, which reads ; “ It shall not be lawful hereafter for any municipal corporation within this State to lay any tax on persons engaged in selling articles of their own manufacture, manufactured within the State.” The city contends that this provision has been repealed, at least quoad its application to city licenses, by section 16 of act No. 73 of 1872. Sess. Acts of 1872, p. 127. Her pretension is directly sustained by two decisions of our predecessors, City vs. Globe Insurance Co., 27 A. 656, and City vs. Dunbar, 28 A. 722. The defendant insists that the views expressed in the foregoing cases were erroneous, and that therefore they should be overruled. But we are not disposed to depart from the principle of stare decisis, unless compelled to do so by a conviction that a previous conclusion has been reached without consideration, or that it is so manifestly wrong as to leave no room for doubt. Neither of which reasons exist here, as both the cases appear to have been considered and interpret the repealing statute in such a manner as, taking the best possible view for defendant, to simply raise a possible doubt as to the correctness of the opinions expressed. The construction of a statute is always a matter of delicacy, and whenever once made, should not be lightly abandoned, more particularly where by .it payments have been made, and thereunder the public burdens have been practically adjusted.

Judgment affirmed.


author: Maer, J.

text:
    No. 7460.
    Michael Shelly vs. J. G. Dobbins.
    Whero'by a clerical error in writing up the judgment, another and strange name is substituted for that of the condemned defendant, no valid execution can issue against the real defendant, so long as the error is uneorrectcd. But it is in the power of the plaintiff, while his judgment is alive, to have the error corrected by a mere motion taken contradictorily with the defendant.
    j^PPEAL from the Sixth District Court, parish of Orleans. Righior, J.

      Cotton & Levy for plaintiff and appellant.

      Thos. Gilmore & Sons for Dobbins, appellee.
   The opinion of the court was delivered by

Maer, J.

Dobbins brought suit against Patrick Lyons, principal, and Michael Shelly, surety, on an injunction bond, to recover of Lyons, plaintiff in injunction, §1500, and of Shelly §500, the amount of the bond. They were both cited; and they answered separately. The judgment was against “ defendants, Patrick Lyons and Michael Welsh, in solido, for §500.”

On motion of counsel for defendants,” and on suggesting * * that “a final judgment has been rendered and signed * * * against said Lyons as principal, and said Shelly as surety, * * * It is * ordered that said Lyons and Shelly be allowed a suspensive appeal,” etc.

The appeal bond recites that, “ we, Patrick Lyons and Michael Shelly, as principals.” Wherever the names of the defendants, appellants, appear in the bond, they are Lyons and Shelly; and Michael Shelly signed the bond as one of the principals.

Two days after, a second bond was given for a larger amount than the first, in which the same parties figure as principals, defendants, appellants; and this bond is also signed by Michael Shelly as one of the principals.

When the case came up to this court a motion was made to dismiss for want of jurisdiction. The case was argued by the counsel of Lyons and Shelly; and.the appeal was dismissed as to Shelly on the ground that the amount in dispute, as to him, was just $500.

Execution issued on the judgment of the district court. The writ is not in the transcript; but we suppose it was against Michael Shelly. At any rate, the sheriff seized the property of Shelly, alleged to be worth much more than $500. He enjoined on the ground that there was no judgment against him. The district court dissolved the injunction without damages; and Michael Shelly appealed.

It is manifest that the use of the name Michael Welsh, instead of Michael Shelly, was a mere clerical error in writing the judgment. Welsh was not a party to the suit; but Shelly was. The injunction bond, the petition, the citation, the answer, the motion and order of appeal, and the two appeal bonds, show conclusively that the person condemned was Michael Shelly. The district court has the right and the power to correct the judgment, at any time, on motion, contradictorily, by substituting the name of the party condemned, Michael Shelly, for that of Michael Welsh, who was an entire stranger to the proceeding.

An execution could not issue against Michael Shelly, on a judgment against Michael Welsh. The writ must conform to the judgment; and, until the name of Michael Shelly has been substituted for that of Michael Welsh, by proper proceeding and entry on the minutes, the-judgment cannot be enforced against Michael Shelly.

The record furnishes no proof that this clerical error has been corrected. The injunction should have been maintained, with a reservation of the right of Dobbins to have the judgment corrected.

The judgment appealed from is annulled, avoided and reversed; and it is now ordered, adjudged and decreed, that the injunction herein granted, in limine, be reinstated and be maintained; that the right of Dobbins, appellee, be reserved, to have the judgment in his favor against Patrick Lyons and Michael Welsh corrected, contradictorily with Michael Shelhj, by substituting the name of Michael Shelly for that of Michael Welsh, as stated in, and in accordance with the foregoing opinion; and that the said J. G. Dobbins, appellee, pay the costs of this suit in the district court and in this court.

Rehearing refused.


text:
    No. 5989.
    Ann McConnell vs. John Pasley.
    ’Where the evidence appearing in a transcript is so confused and contradictory that the labor of an expert is necessary to educe the facts requisite to the administration of justice, the case will bo remanded, in order that the parties be ' referred to an expert before the case is taken under advisement by the court.
    REPEAL from the Fifth District Oourt, parish of Orleans. Cullom, J.

      Thos. Gilmore & Sons and Joseph Magioni for plaintiff and appellee.

      Chas. F. Claiborne and Ilornor & Benedict for defendant and aplant.
   The opinion of the court was delivered by

White, J.

This is a suit to recover a money judgment against the defendant. The parties have during years had transactions, in which' money has been loaned and returned, in which checks have been given and the proceeds disbursed, in which gold has been sold, notes given and canpeled, a house built and paid for, from' all of which the claimed debt is assumed to result. No regular accounts were kept, and the whole case turns upon the examination of oral testimony, as confused and unsatisfactory as it can well be. To add to these difficulties, the case has been tried with a looseness which passes description, and puts powers of analysis to the blush. In fact, one of the counsel, not engaged in the trial below, informed us that it had taken him a summer’s leisure to prepare the brief submitted on the hearing of the cause, and we can fully appreciate the statement, for even with the assistance of oral argument and elaborate briefs, after much examination, and the very closest scrutiny, we have closed the record with the settled conviction, that it is absolutely impossible to draw from the confused mass of testimony which it contains any light by which truth may be discovered and justice done between the parties.

The lower judge, who gave judgment against the defendant, seems to have become aware of the foregoing only after the trial, for when the case was under advisement, doubtless appalled by the labyrinth of facts before him, without notice to the parties, referred the case to an expert for report, and seems to have taken the report thus made as the basis of his conclusions. We think he did, after the case was under advisement, what he should have done during the course of the trial, that is, refer the parties to an expert, 0. P. 442, by whom the matter could have been examined in all its details, by the aid of whose report the court might have been able to find at least a clue to the just ascertainment of the rights of the parties litigant. This not having been done, we can not undertake to determine a case where we can actually reach no result, and where the conscience and judgment find themselves completely obscured by the cloud of details under which the merits of the case, if any, are hidden.

The j udgment is reversed, and the case is remanded for further proceedings in conformity with the views hereinabove expressed. The costs of appeal to be paid by appellee, those in the district court to await the final result.

Rehearing refused.


text:
    No. 7421.
    Vincent T. Cambre vs. Félicité Grabert et al.
    Where plaintiff institutes a hypothecary action to enforce a judgment, which as-heir, and as administrator of his deceased mother, he had obtained against his father, the fact that he fails, when properly put to the proof, to show that he was the administrator of his mother, will not prevent him from enforcing his rights as heir of his mother.
    A suit brought by a son who has attained his majority against his father on account of a claim he derives as heir of his deceased mother, is not a suit growing out of his father’s tutorship, and hence can not be postponed by the latter until a final account of his tutorship has been rendered.
    APPEAL from the Eifth Judicial District Court, parish of Iberville, Me Vea, J.

      Barrow & Pope for plaintiff and appellant.

      A. & B. B. Talbott for defendants and appellees.
   The opinion of the court was delivered by

White, J.

The plaintiff, individually and as administrator of the succession of Celestine Leonise Leiveque, deceased wife of Jean Theo. Cambre, a resident of the parish of Livingston, brings a hypothecary action against defendants. He avers that in his said capacities, on the 18th May, 1877, he recovered in the Sixth Judicial District Court, as an heir of his mother, Celestine Leonise Leiveque, for his virile share, and as administrator of her succession, a judgment against his father, Jean Theo. Cambre, for the sum of three thousand dollars, with five per cent from the 12th of January, 1871, the date of the death of Mrs. Cambre. He avers that the judgment recognized a legal and tacit mortgage, which operates upon property held by the defendants.

The defendants excepted. 1st. That the judgment and all the proceedings had in the succession of Mrs. Cambre, in the parish court of Livingston, are absolutely null and void; thatthe domicile and residence of Mrs. Cambre at the time of her death was.in the parish of Iberville; that no account of tutorship has ever been rendered to the children and heirs of Mrs. Cambre by their father and natural tutor, J. F. Cambre, with whom they continued to reside after the death of their mother, •and who'maintained and educated them, and until the settlement and liquidation of the tutorship account, no action can be brought to enforce the pretended legal mortgage; that the minor heirs of Mrs. Cambre were not represented when the judgment relied on was rendered, and are not ■■so in this suit.

The plaintiff moved to take the exceptions as an answer, which was refused, the exceptions were thereafter sustained. Plaintiff appeals.

First — The exception to the capacity of the plaintiff as administrator proceeds upon the theory that Mrs. Cambre was domiciled in the parish of Iberville at the time of her death, and that hence the opening ■of her succession in the parish of Livingston was an absolute nullity. ■Granting the legal correctness of the proposition, there is nothing in the record disclosing the fact that the claimed administrator was appointed, if at all, by any other than the proper court of the domicile oE the deceased. The record abounds with proof that Mrs. Cambre was .at the time of her death a resident of Iberville, although she died in Livingston, where she happened temporarily to be ; there is nothing, however, in any way showing by what court plaintiff was appointed .administrator. The petition does not so disclose, as it simply avers that the plaintiff is the administrator of Mrs. Cambre, without stating iby what authority appointed. Grant that the exception was a denial ■of the plaintiff’s capacity as administrator, so as to throw upon him the onus of exhibiting his authority, and that not having so done, he is to be treated as not such administrator, the demand should not have been dismissed. The plaintiff alleged that not only individually as an Mir of his mother, but also as her administrator, he had recovered a judgment against his father. There is nothing in the exception or the proof questioning the residence of the father when the judgment was rendered. Therefore, eliminating the capacity as administrator, the individual claim remained. The obligation of the father of plaintiff to his wife, plaintiff’s mother, was certainly heritable; if so, it was either •divisible or indivisible; if the first, the plaintiff was entitled to enforce his virile share; if the last, as one of the co-owners of an indivisible right, he was entitled to enforce the whole. C. C. 2115. Marcadó, vol. 4, p. 538.

Second — The plaintiff is not seeking to collect a claim against his tutor as resulting in any way from the tutorship; he is asserting a right which he avers descended to him as an heir of his mother, and not depending on the tutorship, not connected with it, and which could be enforced as heir, whether or not a tutorship had existed.

The plaintiff avers that as heir of his mother, he had obtained á judgment against his father, not on account of the tutorship, but for a debt due by the father to the mother, and therefore descending to her heirs. Eor this reason we think this case not governed by Gibbs vs. Lum, 29 A. 524, but rather by Bridges vs. Simonton, 28 A. 830. While we do not wish to be understood as approving the last mentioned ease in all respects, we think, in as far as applicable to the issue now before us, it is a correct application of legal principles. We, of course, express no opinion as to the right of a minor to bring a suit like the present when he is under the tutorship of his father.

The judgment is reversed, and the case remanded to be proceeded with according to law.


author: Harr, J.

text:
    No. 7424.
    Keene J. Cole vs. William G. Randolph.
    Where the legality and constitutionality of a tax is in contestation, this court has jurisdiction, no matter how small the amount in dispute may be.
    All transient persons selling goods in this State whether by wholesale or retail, on land or water, are liable to a license tax of $100 per annum.
    The law imposing a license tax on transient persons doing business within the State, does not violate that provision of the constitution of the United States vesting in Congress the exclusive power to regulate commerce among the several States, etc.
    j^PPEAL from the Parish Court of East Baton Rouge. Sherburne, J.

      J. H. Halsey and A. Goldthwalte for plaintiff and appellant.

      Herron, Bird & Beale for defendant and appellee.
   The opinion of the court was delivered by

Harr, J.

This suit was brought to recover of defendant damages for the illegal seizure of certain personal property. The petition alleges that plaintiff resides at Leavenworth, and is a citizen of the State of Indiana; that he is a flatboat-man engaged in transporting the products of Indiana and other Western States to the Southern States ; that he has a flatboat lying at the wharf at Baton Rouge, loaded with such products; that defendant is collector of State and parish taxes, and without just cause and in violation of law seized and took away fifty-five barrels-potatoes and thirty sacks oats from petitioner’s boat; that petitioner was not indebted to defendant either individually or as State and parish tax collector; and that this unwarranted seizure caused him damage to the amount.of $300.

Defendant answered that he took and sold the potatoes and oats, according to law, for the purpose of collecting the amount of license tax due to the State of Louisiana by plaintiff, who peremptorily refused to pay the same.

The judgment of the parish court was in favor of defendant; and plaintiff appealed. The legality and constitutionality of the tax is in contestation; and this court has jurisdiction under art. 74 of the constitution.

The act of 1872, No. 14, section 1, paragraph 13, fixes the State license tax to be required of “ each peddler or hawker, who peddles or carries merchandise or groceries for sale, or sells through this State in. a boat or other watercraft, at one hundred dollars.”

The word “ peddler ” means a travelling merchant, one who carries, merchandise about the country for sale. It seems that plaintiff has been engaged in this business for thirty years. He descends the river with his boats, stopping and selling wherever he finds a market. That, is what he was doing at Baton Rouge when defendant demanded the-State license tax. Plaintiff refused to pay it: said the same demand had been made of him at Bayou Sara ; that he. had taken legal advice there; and that he intended to resist the payment by law.

We think plaintiff was a peddler in the sense of the law ; and that he was clearly liable, as such, for the license tax imposed by paragraph 13 of section 1, of the act of 1872.

The proof is that he sold by the package, by the bushel, by the piece, or in quantities as required, such articles as flour, corn, oats, potatoes, meat, bran, dried fruit, stone-ware, etc. He might well have been'taxed $100 for license under paragraph two of the same section, as a wholesale and retail merchant, dealer or trader.”

Section 3330 of the Revised Statutes provides that “ all transient-persons doing business or selling in this State shall pay their taxes or license before selling or doing business; and upon their refusal or failure to do so, the State tax collector shall seize, without notice, and sell according to the provisions of section 3295.”

The only possible application of section 3295 is, that the sale shall be “ without process of court;” and the preceding section, 3294, authorizes the sale within five days, “ if the property is of a perishable nature.” Plaintiff maintains that the sections.of the Revised Statutes in question were repealed by the act of 1871, No. 42, section 102, which iff as follows;

“That all laws, or parts of laws on the subject of raising revenue,, or the administration or collection of the same, contrary to or inconsistent with this act, be and the same are hereby repealed.”

The law under which defendant proceeded related exclusively to the collection of the license tax from transient persons; and we find nothing in the act of 1871 respecting such persons, or the collection from them of the license tax; nor is there anything in section 3330 of the Revised' Statutes contrary to or inconsistent with the act of 1871.

We are not informed as to the date at which the sale was made by the tax collector; but he testified that he advertised and sold according “to law.” This is not material; since there is no complaint that the property was sacrificed, or that the sale was premature; nor would any irregularity in the sale vitiate the legal seizure of the property.

Plaintiff relies, mainly, on section 8, clause 3, article 1, of the constitution of the United States, which vests in Congress, exclusively, the-power “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.”

We do not think the facts of this case raise any Federal question whatever. Plaintiff had the right to navigate freely the Mississippi' river; to land his boat, and to discharge and to receive cargo for transportation as a carrier; but when undertook to sell his goods, to peddle them from one end of the State of Louisiana to the other, on the-borders of the river, he was bound to submit to the same regulations which our laws impose on our own citizens, pursuing'that precise business. It is wholly immaterial where the owner or the goods come from;' once in the State of Louisiana with them, to be sold to such as will buy, in such quantities as they may require, wherever a market can be found, the trader becomes a peddler, whether he pursue his calling on a boat, or in a vehicle, or on horseback, or on foot. It is only those who carry their goods about in boats or watercraft, who are subject to the license tax of $100, as peddlers, which is imposed, without discrimination, on all who fall within that class.

The State may not levy a tax on goods merely passing through to-an ultimate destination, or sent here for sale ; nor on imports ; but he-who pursues the business of selling such goods, come whence they may, can claim no exemption from the general laws of the State, which impose the same license tax on all who pursue that business, citizen of this State or of any other State, or unnaturalized foreigner.

We find no error in the judgment appealed from ; and it is affirmed! with costs.


text:
    No. 5970.
    E. G. Durel et al. vs. Otto M. Tennison.
    Whero the ownership of property is claimed on the ground of continuous, peaceable possession as owner for thirty years, on the part of the claimant and his authors, the claimant is entitled to introduce in proof of his title, a declaration made by his vendor in an act of sale to him of contiguous property, to tho effect that he (the vendor) had been in peaceable possession of the property presently in question, and that he transferred to the claimant the rights which he, or his preceding vendors had in the property in question.
    ■Such claimant is also entitled to introduce parol proof to show that both he and his vendors and authors had possessed during the time, and under the conditions required for tho prescription of thirty years.
    APPEAL from the Fifth District Court, parish of Orleans. Oullom, J.

      Guy Duplantier for plaintiffs and appellees.

      Frank G. Zacharie for defendant and appellant.
   The opinion of the court was delivered by

White, J.

The plaintiffs brought a petitory action to recover four lots of ground; situate in this city, in the faubourg Pontchartrain,designated by the numbers eleven, twelve, thirteen, and fourteen, on a plan drawn on the eleventh of September, 1836, by L. Surgi, and deposited in the office of EL Pedischaux, late a notary in the city, and known as plan No. 2.

The defendant answered by a general denial, and averring that ■either through himself or his authors, from whom he derived title, he bad been in undisputed possession of the property claimed continuously :as owners for thirty-five years, he pleaded the prescription of thirty years.

The judgment below was in favor of plaintiffs.

In consequence of our opinion as to the incorrectness of certain rulings of the lower court, we will remand the cause.

The defendant offered his title to property contiguous to that claimed by plaintiff, which title contained the following declaration made by his vendor : “ That ever since the purchase of the afore-described property,” that conveyed by the act, “ he has been in the peaceable possession and enjoyment of a certain portion of ground,” etc., •giving a description of the property presently in question, “ and he does •hereby transfer and set over unto the said purchaser, his heirs and •■assigns, the rights and pretensions which he or his preceding vendors have or may have in and to the aforesaid portion of ground.”

He then offered his chain of title to the contiguous lots, conveyed to him by his vendor, by the act containing the recital just mentioned, In order thereby to lay proper foundation for parol proof, showing that he and his authors had always uninterruptedly, unequivocally, and •quietly possessed as owners the property in controversy, which adjoined that covered by the tendered titles; which evidence was not allowed, on the ground “ that the titles did not mention or relate in any manner to the four lots in question, they could therefore afford no evidence of title to them, the lots mentioned, in them are not the subject of this investigation.”

The defendant then tendered witnesses to prove that his vendors ■and authors had possessed during the time, and under the conditions required for the prescription of thirty years, not only the lots covered by their titles, but those now claimed, which possession had been regularly taken up by each succeeding holder of the chain of title previously offered. The testimony was disallowed, on the ground that proof of such possession must be in writing, and that although the possession of the immediate author might be shown, that of a series of authors could not. Both rulings were erroneous. 1st. The titles were not offered to •establish written title to the property, but in order by parol proof to show possession by the authors of defendant of the property sued for not under their titles but beyond them. The maxim “ ad primordium tituli posterior semper formatur eventus” simply fixes the quality of the possession by the nature of the title, and does not prevent one holding •a title as owner from prescribing, not against but beyond his title. The Roman law, wherein the maxim took its birth, was explicit. Digest pro emptore law 2, sec. 6 ; and such is the text of our Code. C. C. 3514. This being true, it was surely competent for the defendant to make proof of the matter tendered in order to link the possession of his authors to his own, and thereby to establish with the assistance of parol proof his plea of prescription. C. C. 3493.

2d. That parol proof is admissible to show possession as a means of establishing the prescription of thirty, years, under C. C. 3499, is no longer an open question — 12 M. 649; 19 L. 258; 5 A. 231 — and our jurisprudence is in accord with the views of the expounders of provisions of law similar to our own. Pothier, vol. 9, Nos. 176,178; Merlin Repertoire, vol. 24, p. 134; Laurent, vol. 32, sec. 343. It is equally clear that the defendant was entitled to show the possession of his authors, and was not confined to that of his vendor. C. C. 3459. The fact that the article uses the singular instead of the plural in saying “ that a possessor is .allowed to make the sum of - possession necessary to prescribe by adding to his own possession that of his author,” is of no significance. C. C. .3356. In fact the right to avail oneself of a series of possessions was ■recognized by the Roman law at the very birth of the thirty years’ prescription. Pothier’s Pandects, book 41, tit. 3, vol. 17, p. 148.

But it is contended that the property covered by the deeds being other than that sued for, and hence that the vendors of the defendant were, in legal purview, his authors only quoad the property by them sold him, and not such authors as regards the contiguous property which they may have possessed beyond their titles. This is a mere petíüo principii, for while it is elementary that in order to avail oneself of a previous possession there must be a juridical link between such possessions, it is textually provided by our Code that an act of sale creates such link. C. C. 3494, The various vendors in the chain, of title were the authors-of defendant, not only in reference to the property sold, but their possession beyond their titles was the possession of his authors, which was competent to be shown. To hold the converse would be to say not only that one could not prescribe beyond his title, but also that title was an essential basis for the prescription of thirty years.

The judgment is reversed, and the case is remanded to be proceeded with according to law and in conformity with the views herein-above expressed. The costs of appeal to be borne by plaintiff; those below to abide the final result.