text:
    No. 1138.
    The State of Louisiana vs. E. Hornsby.
    The Clerk of court and two jury commissioners, forming a quorum under the law, the venire drawn by them will not be considered illegal for want of the presence of the other two commissioners.
    The refusal of the judge to grant a continuance to the accused to procure certain witnesses, was, under the circumstances of the case, within his sound discretion.
    A juror is competent, though he answered upon the direct examination, that he had formed an opinion respecting the guilt or innocence of the accused, if, on examination by .the judge, it appears from his answers that his opinion was formed from rumors, that he is without bias or prejudice, and that he can decide the case according to the evidence, without regard to what he previously heard.
    APPEAL from the Twenty-first Judicial District Court, parish of Iberia. Fontelieu, J.
    The State and the Defendant unrepresented in this Court.
   The opinion of the Court was delivered by

Todd, J.

This case was before us at our last term, on an appeal taken by the defendant from a sentence condemning him to a life imprisonment in the penitentiary for the crime of murder. The case was remanded for another trial. That trial was held in the court below, and the defendant was convicted of manslaughter and sentenced to five-years’ imprisonment at hard labor in the penitentiary, and has again, appealed.

A voluminous transcript of appeal has been filed in this Court, but,, remarkable to say, neither the State nor the accused has made any appearance here by counsel, and we have not the benefit of an argument,, either oral or by brief, from either side.

Under a strict construction of the law, and the rules of this Court»the fact mentioned — of the non-appearance in this Court of both parties by counsel or otherwise — might imply an abandonment of the-appeal; but construing the right most favorably to the accused, and> disregarding the omissions that might be considered as impeding it,, unaided by counsel and uninformed as to the special grounds of relief-relied on, we have made a close and critical examination of the entire record, to ascertain if there existed any errors or irregularities in the-proceeding, requiring the setting aside the judgment and sentence of the lower court.

The defenses made in the court of the first instance consist:

1. Of a motion to quash the venire.

2. Motion for a continuance.

3. Alleged incompetency of several members of the jury that sat upon the trial of the case.

4. Alleged errors in the rulings of the judge touching the admission and rejection of evidence.

5. Alleged absence of prisoner at certain stages of the trial and proceedings relating thereto.

These defenses are embodied in motions to quash and in arrest of judgment, and bills of exceptions to the rulings of the Court, all of which we will consider in their order.

First — The venire was drawn on the 6th December, 1880. The trial took place in May following. At the general drawing in December and the supplemental one in March following, the clerk of the court and three citizens, appointed by the judge, were present, acted and constituted the jury commission.

The law provided that a commission should be composed of the clerk and four citizens, appointed by the judge, but authorized three to act in the proceedings relating to the duties of the commission. Considering that in this instance the clerk and three citizens were present and acted, we think the law was substantially complied with. The failure of the judge to appoint a fourth commissioner, or the failure of one or even two commissioners to attend a meeting of the commission, when two commissioners, with the clerk, under the law, form a quorum for business, as expressly declared, we do not consider as an irregularity sufficient to vitiate the proceeding. In this instance, the reason of the law was fully met, and, in the absence of a nullity pronounced in the law itself on account of the omission suggested, we must hold that the motion to quash the venire for this irregularity was properly overruled. The venire was not stricken with nullity by reason of the failure of an officer to discharge his duty in one particular. The law does not attach such a consequence to an omission of this kind. There is in the record nothing that shows affirmatively the non-performance by the clerk of the special duties assigned him in the proceedings of the commission, touching the making out the list of jurors, &c. He is presumed to have discharged this duty, and the presumption is not rebutted.

Second — We are not prepared to say that the judge erred in refusing the continuance. Had such application, — complete as to form, as this must be conceded to be, — been made under certain other conditions .and circumstances, we have no hesitation in saying that it should have been granted. For instance, had the prisoner never been tried before, and had this application been seasonably made before a first trial, it might be considered an abuse of the discretion with which he is clothed in the matter of continuances for the judge to have refused the continuance under such a state of facts; but when we consider that the accused had been under arrest for at least a year and a half; had been once tried, and, previous to his first trial, had made an application for a continuance on the identical grounds contained in his last motion,— which were, that certain witnesses named in both applications, could not be, or were not served with subpoenas, — we see at once that circumstances were presented, that not only authorized, but called for the exercise of the judge’s discretion. We cannot say, under this showing, that it was not soundly exercised. He had just reason to conclude that the proper diligence had not been used, and that the witnesses would never be found and their attendance never procured.

Third — Two of the jurors called first, said, upon their direct examinations, that they had formed opinions respecting the guilt or innocence of the accused; but, on examination by the judge, it appeared from their answers that their opinions had been formed from rumors; that they were without bias or prejudice, and that they could decide the case according to the evidence that they would hear on the trial, without regard to what they had previously heard. Under the settled jurisprudence on this point, they were competent jurors. 14 An. 462, 693; 23 An. 148; 29 An. 642; 32 An. 1241.

Fourth — In regard to the rulings of the judge in relation to the evidence, it is only necessary to say, that we have scrutinized the many bills of exceptions touching these rulings, and find none deserving of consideration, as presented to us by the record, save two, and those relate to the exclusion of the testimony of an absent witness, given on a preliminary examination, on the same charge for which the accused: was being tried, and a written report of experts in writing in relation to the death of the deceased, and its causes. Neither of these documents are in the transcript, although stated in the bills to be annexed respectively thereto. Without an inspection and examination of them, we are not prepared to say they should be admitted. The judge assigns, as a reason for excluding the previous testimony of the absent witness, that he had never signed his statement made at the preliminary examination, and was not proved to be beyond the reach of the process of the court. These considerations justified the ruling.

Fifth — In regard to the alleged absence of the prisoner when the case was set for trial, there is no minute of the court showing this fact to be found in the record. There is no entry, on the day stated in the bill, of any proceeding of the court. During all the other stages of the prosecution, of any importance, the record shows the prisoner was present.

With this review of the case, we conclude there was no error in the proceedings; and the sentence and judgment appealed from are affirmed.


source: Caselaw Access Project

author: Levy, J. Fenner, J.

license: Public Domain

text:
    No. 1137.
    Manuel A. Montejo vs. M. T. Gordy, Sheriff, et als.
    •If the mortgage creditor is entitled to executory process against his mortgagor, he has the same right against the vendee of the latter, even if his act of mortgage does not contain the pact de non alienando, but, in that case, he must proceed, as against third possessors’ by the hypothecary action proper, after the thirty days demand and ten days notice, provided for by the Code of Practice. And the fact that such mortgage creditor has obtained •judgment against the original mortgagor, does not deprive him of the right of executory process, in the hypothecary action, against the mortgagor’s vendee.
    APPEAL from the Nineteenth Judicial District Court, parish Of St. Mary. Goode, J.

      Foster Bros, for Plaintiff and Appellant.

      H. D. Smith for Defendants and Appellees.
   The opinion of the Court was delivered- by

Levy, J.

Henderson Crawford, one of the heirs oí H. Crawford, deceased, executed a mortgage, on the 9th of December, 1865, in favor of Martin Conrad, to secure a note for $3000, in favor of said Conrad, signed by said Henderson Crawford and Larive Crawford, in solido, the mortgage being upon “ his entire interest in the estate of his father, to wit: one-eighth undivided interest in what now remains of said estate, consisting of the sugar plantation belonging to said estate,” describing its quantity, location, boundaries, etc. Suit was brought on this note by Conrad and, on the 1st of May, 1880, there was judgment in the District Court of St. Mary against the makers of said .note and recognizing the mortgage aforesaid as bearing upon and affecting said mortgaged property. In 1869, the widow and heirs of H. Crawford, deceased, executed a mortgage upon the whole of said plantation in favor of P. J. Pavy, to secure a certain debt due by them; this debt was transferred to M. A. Montejo with full subrogation of the mortgage securing it, and the plantation thus mortgaged was seized and sold under executory process, in the suit (order of seizure and sale), No. 6962, of the docket of the District Court, parish of St. Mary, of M. A. Montejo vs. Henderson Crawford et als., and Manuel A. Montejo and L. E. Generes became the purchasers. After the judgment was rendered, on 1st May, 1880, in favor of the administrator of Martin Conrad, thirty days notice and demand for payment was given to the mortgagor, Henderson Crawford, and thereafter ten days’ notice and demand on the third possessors. The administrator of Conrad then filed his petition, setting forth his judgment on the mortgage note with recognition of his mortgage, the adjudication to Montejo and .Generes of the property affected by Conrad’s mortgage, the amicable legal demands of thirty and ten days on the hypothecary debtor and the third possessors, prayed for citation of said third possessors “ as the law directs,” and that “ executory process issue and an order of seizure and sale be directed to the sheriff of St. Mary parish, commanding him to seize and sell for cash after the requisite legal delays and formalities,” the mortgaged property. On this petition the District Judge granted the following order: “ Let executory process and an order of seizure and sale issue as prayed and according to law.” Notice of the order of seizure and sale and demand for payment within three days was directed to Manuel A. Montejo and Y. or P. J. Montejo and the executor of L. P. Generes, which was served on P. J. Montejo and said executor. Under the writ of seizure and sale the undivided eighth interest was seized, and notice of seizure made on P. J. Montejo and the executor of Generes. Under the writ the sheriff seized and advertised for sale, the following: "as the property of M. A. Montejo, viz: the one undivided eighth of the following described property, to wit: that certain tract of land or sugar plantation lying and being situated in the parish of St. Mary, State of Louisiana, containing about seven hundred and sixty arpents, superficial measure, having a front on the Bayou Teche of nine and one-half arpents, with a depth that belongs to the same, bounded below by lands of William and A. L. Hayes, with all the buildings and improvements thereon situated, rights, ways, appurtenances thereunto belonging.” The property thus seized and described, was advertised for sale.

M. A. Montejo thereupon brought this injunction suit and the sale was enjoined. Plaintiffs grounds of injunction are: That Henderson Crawford could not grant a mortgage upon his right of inheritance in the succession of his deceased father; that no portion of the property itself, the same belonging to the estate of his deceased father, was mortgaged, and never had been accepted by said Henderson; that "said pretended mortgage never had any legal existence or vitality, is null and void and of no effect against third parties, on account of vagueness, uncertainty and illegalities patent upon its face.” Further, “ that the order of seizure and sale and the proceedings thereunder are illegal, null and void,' and unwarranted in law, in this, that the plaintiff (administrator) in execution, has mistaken his remedy; that, under the law, he was not entitled to the executory’process or any order of seizure and sale, but, if he had any cause of action against petitioner, he should have resorted to the hypothecary action proper; that, having a judgment recognizing simply a mortgage, he could only proceed against the third possessors by the hypothecary action; that upon the original mortgage no executory process could issue and since said mortgage has been merged in a judgment, his remedy was either by fi. fa. against the judgment debtor, or, By the hypothecary action against the third possessor. Further, that even if he could have resorted to the executory process, there is want of proper service, it having been made on E. J. Montejo personally, and not as agent; that the advertisement is defective for want of definite description of the property seized. The plaintiff in injunction claimed $800 damages, for attorney’s fees, and $500 special and exemplary damages, and he prayed for a decree declaring the nullity of Oonrad’s mortgage, and for an order directing it to be cancelled and erased from the records. The defendant in injunction in his answer, made a general denial and averred that plaintiff was estopped from denying the validity of respondent’s mortgage or the mortgagor’s capacity to hypothecate the property mortgaged in his, plaintiff’s, favor. He admits that the notices to pay and of seizure were served upon Frank J. Montejo, the agent of plaintiff and in possession of the mortgaged property, and avers the sufficiency of said notice; he denies the right of plaintiff herein, to enquire into the sufficiency of the evidence on which executory process issued; and prays for dissolution of the injunction with $250 damages, for attorney’s fees, and 20 per cent exemplary damages. There was judgment in the lower court rejecting plaintiff’s demands and dissolving the injunction, and against the defendant on his reconventional demand for attorney’s feos and damages, reserving to him the right to sue on the injunction bond for damages sustained by him, growing out of the injunction. Plaintiff, M. A. Montejo, appeals.

In order to come to a proper determination of the fundamental issue in this case, we are called upon, first, to decide whether the judgment in this case has been rendered in a proper proceeding, or, in other words, whether the judgment is binding on the plaintiff in injunction, whose property is sought to be sold under the judgment rendered in the proceedings. The plaintiff in that suit, holder of the first mortgage on property which had passed into the ownership and possession of a third possessor, obtained judgment against his debtor, with recognition of his mortgage. The third possessor had not assumed the payment of the prior • mortgage, which did not contain the pact of non-alienation; between him and the plaintiff, first mortgagee, there existed no privity and there rested on him no personal obligation. We are of opinion that the proceeding by executory process of seizure and sale does not lie in this case. It is true, as contended by counsel of appellee, that the sufficiency of evidence to authorize the order of executory process cannot be examined on an injunction and the remedy in such-cases is by appeal, 26 An. 709; 8 An. 23; 20 An 256; and, therefore, we can, in that regard, enter upon no such examination. But it is competent for us to inquire into and pass upon the question as to whether the order and proceedings themselves are authorized by law and binding. The conclusion which we have reached and above expressed, is supported by numerous authorities. In 4 La. 125, it was said: “ There is no allegation of privity of contract between the parties (one the original creditor and the other a third possessor). The defendant (third possessor) can only be rendered liable in an hypothecary action.”

In Waddill vs. Payne & Harrison et al., 22 An. 134, it was held that, where a third party has purchased real estate, which is subject to a special mortgage without the stipulation therein of the pact de non alienando, the holder of the mortgage can only enforce it against the third possessor, by the hypothecary action. In Taylor vs. Pipes, 24 An. 251, the same doctrine was held, and the Court referred to the case reported in 9 R. 69, and said that 'therein “ the precise question now in controversy was decided, to wit: whether the purchaser of mortgaged property, after suit or judgment against the original mortgagor, is entitled to the rights of a third possessor and can only be proceeded against conformably to the rule stated in articles 68 and 69 Code of Practice. It was there held that, ‘ a purchaser of property subject to a mortgage, in possession, is entitled to the rights and privileges of a third possessor, though a judgment had been obtained by the mortgagee against the mortgagor, but no execution had issued before the purchaser took possession under the sale; it is only when the mortgage contains the pact de non alienando that the third possessor is not entitled to notice. ’ ” The reasoning of the Court, of which Mr. Justice Wyly was the organ, in the case referred to, Taylor vs. Pipes, is clear, full and convincing on the point at issue.

In 12 La. 34, the Supreme Court decided that where a creditor demands the execution of a judgment rendered by a tribunal different from that within whose jurisdiction the execution of it is sought, he may resort to the executory process; but this process cannot issue from a court within the same territorial jurisdiction. The party must resort to his fieri facias on his judgment.

Article 709 of the Code of Practice, provides the remedy for the prior mortgagee: “ The hypothecary action lies against the purchaser of property seized, which is subject to privileges or mortgages in favor of such creditors as have said privileges and mortgages, in the same manner and under the same rules and restrictions as are applicable to a third possessor of a mortgaged property.”

In 4 An. 270: “ Where an act of mortgage does not contain the pact de non alienando, and the property is in possession of a third person, no judgment can be rendered for its seizure and sale in an action against the mortgagor alone.” G. P. 68; G. P. 69; 26 An. 370.

In 3 An. 227, it is held: “Where mortgaged property is in possession of the mortgagor, one expressly subrogated to the rights of the mortgagee may proceed against it, via executiva. But, where an act of mortgage contains no clause de non alienando and the property is sold by the mortgagor to a third person, neither the mortgagee, nor any one subrogated to his rights, can proceed against it by order oí seizure and sale. The creditor must resort to an hypothecary action.”

The proceeding in this case is on its face, and avowedly, one of executory process. Certain prerequisites to support the hypothecary action have been complied with, but the action itself was not instituted or conducted as an hypothecary action via ordinaria, nor has it been converted into such, so as to support a judgment in such action. The third possessor was not cited in the suit and the judgment was not obtained contradictorily with him. We, therefore, fin’d that the proceeding via eocecutiva did not lie in the case and that via ordinaria, the proper one, has not been had.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered by the court a qua, it is ordered, adjudged and decreed that there be judgment in favor of plaintiff, perpetuating the injunction herein, without prejudice to the defendant mortgagor to prosecute his claim in other and proper proceedings. Appellee to pay the costs of both courts.

On Application nor Rehearing.

Fenner, J.

A re-examination of this case has convinced us that our original opinion herein was erroneous.

The views expressed and the train of reasoning which led up to the conclusion that the remedy for enforcement of the mortgage in the suit enjoined was by the hypothecary action proper, were certainly conclusive. But we assumed that in no case, could executory process issue in a hypothecary action proper, but that, in all cases, such action 'must be conducted by citation and proceedings via ordinaria.

This assumption, we are now convinced, is not sustained by law.

The hypothecary action is a real action, the object of which is to have the property hypothecated seized and sold for the payment of the debt. C. P. 61.

When this action is brought against a third possessor of the hypothecated property, for the purpose of compelling him to give up the property, or to pay the debt, or, in default, to have the property seized and sold, it is called the hypothecary action proper. O. P. 68, 69.

Every hypothecary action brought against a third possessor, who has not personally assumed the debt, falls within the designation of hypothecary action proper.

Article 744 O. P. makes it clear that executory process “ may be pursued, not only against the debtor or his heirs, but also against the third possessor of the thing subjected to it according to the forms prescribed ” in articles 68 to 74 of that Code.

Therefore, if the mortgage creditor is otherwise entitled to executory process, the fact that his proceeding is against a third possessor does not deprive him of that right.

To entitle the creditor to executory process, it is only necessary, so far as conventional mortgages are concerned, that his rights should arise from an act importing confession of judgment. C. P. 732.

Proceeding on such a mortgage, the only limitation on his right to executory process against a third possessor, lies in the condition imposed of complying with the forms prescribed in articles 68 et seq. C. P; C. P. 744.

These forms are thirty days previous demand from the original debtor; the proper affidavit appended to his petition; and ten days notice of the demand to the third possessor. C. P. 69, 70.

No other forms or conditions are imposed. Nothing is said about citation, and, indeed, the proceeding by executory process is exclusive of the idea that citation should be necessary or proper — -the notices provided being a substitute for, and equivalent of, citation.

The absence of the pact de non alienando from the mortgage has no effect upon the proceeding against the third possessor. The only effect of that pact is to entitle the creditor to disregard all alienations and to pursue the property by direct proceeding against the original debtor.

Its absence, provided the act imports confession of judgment, only imposes upon the creditor the necessity of directing his executory proceedings against the third possessor directly and of giving the addi-' tonal notices required by law; but, these requirements having been complied with, he is none the less entitled to executory process.

■ Such is the express doctrine of Wilcoxon vs. Markell, 8 An. 460, and is clearly derived from the textual provisions of the Code of Practice, as we have shown.

In the case before us, the creditor held a mortgage importing confession of judgment, and so expressly alleged in his petition. The fact that he had obtained a recognition of his mortgage by judgment against the original debtor, if it did not enlarge, certainly could not diminish, his rights against the third possessor of the thing mortgaged.

The proceedings exhibit the demand, affidavit and notice, in strict compliance with law, and we think he was entitled to the remedy invoked.

The other grounds of injunction are untenable.

E. J. Montejo’s agency for the plaintiff was expressly alleged in the . petition and proved by authentic act, and the service of the ten days notice on him was sufficient.

The description of the property in the advertisement is sufficient to identify it and, taken in connexion with the proceedings, is sufficient.

The other grounds of injunction require no further notice than was given in our original opinion and suggested in the present one.

In altering our decree upon this application, we shall reserve to the appellant the right of applying for rehearing as if this were our original decree.

It is, therefore, ordered that our former decree herein be annulled and set aside.

And it is now ordered, adjudged and decreed that the judgment appealed from be affirmed at.appellant’s costs.


author: Fenner J.

text:
    No. 1135.
    William F. Anderson vs. Cléophas Comeau.
    The seizure of immovable property vests in the sheriff the right to receive the fruits or rents from the date of seizure, for the benefit of the seizing creditor.
    An unrecorded act of lease of real estate produces no legal effect as to third persons.
    The lessee of immovable property, under an unrecorded lease, is liable to the seizing creditor for rent accruing after seizure, though he has paid it to the lessor by anticipation, or furnished negotiable notes for it.
    The lessee of immovable property, under an unrecorded lease, in case of seizure, has the right to claim the dissolution of the lease; but, if he remains in possession, a tacit re* conduction results from it in favor of the seizing creditor.
    Decision in 30th An., 436, affirmed.
    APPEAL from the Thirteenth Judicial District Landry. Hudspeth, J. Court, parish of St.

      John N. Ogden for Plaintiff and Appellant:
    This case involves questions of fact principally.
    Aleases property to B for a stipulated amount per annum. The whole amount of the lease is paid by B in advance. B subsequently sub-leases the property to C for a stipulated price, to be paid to B by O. The judgment creditors of A cannot seize the rents arising from the lease in favor of B without alleging and proving fraud.
    The seizure of the rents accruing in favor of B under a on the part of the creditors of A, without notice to C of the seizure, will not justify C in refusing to pay the rents to B.
    It is elementary that until the assignee notifies the debtor of the assignment made to him the assignor is not divested of the credit which he assigns.
    A simple transfer does not divest, and it is necessasy to notify the party of the transfer; from which it follows, that before notice, the debtor may legally pay to the assignor, his creditor.

      Henry L. Garland for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner J.

Thomas C. Anderson owned lot No. 5 .in the town of Washington, with a large brick store and other improvements thereon.

He had leased from the town of Washington a certain piece of land on the Bayou Courtableau for a term of years expiring in 1884, at a rent of fifty dollars per annum, on which there had been built a warehouse.

On March 11th, 1879, Thomas C. Anderson executed a written lease of the two properties above mentioned, to his son, William E. Anderson, for the term of one year, at a stipulated rent of twelve hundred dollars, recited in the lease to have been paid in cash.

On March 15th, 1879, by writing endorsed on the instrument, Wm. E. Anderson transferred all his rights and interest in the lease just mentioned to Cleophas Comeau, for the consideration of $1400, stated in the transfer to have been paid in cash.

On the 29th of March, 1879, under writs of fi. fa. issued by certain judgment creditors of Thomas C. Anderson, who are intervenors in this case, the sheriff of the parish seized and took into his possession, the town lot No. 5 with the improvements, belonging to said Anderson, of which seizure notice was duly served upon the latter; and also seized the right, title and interest of Thomas C. Anderson in and to the lease from the town of Washington to him of the land on which the warehouse stood, and also his right, title and interest in and to the warehouse itself. Of this last seizure notice was duly served, not only upon T. C. Anderson, but upon Comeau, who was then in possession under his sublease.

At the time of seizure the lease from T. C. Anderson to W. E. Anderson, transferred by the latter to Comeau, had not been recorded, and record was not made thereof until the 9th of June following.

The sheriff was proceeding with the advertisement and sale of the property seized, when arrested by an order of court in a suit for respite instituted by Thomas C. Anderson against his creditors. This stay remained in force, and maintained the seizure of the property, during the entire term of Comeau’s lease.

This suit having been brought by William E. Anderson against Comeau to recoverthe consideration due under the transfer of the lease, which, it is admitted, was not paid in cash as falsely stated in the transfer, Comeau answered that, under the real agreement between himself and plaintiff, he took the lease at the rent of $1200 stipulated therein; that he was ready to pay the rent due by him to whomsoever the Court might find entitled thereto; but that he had been notified by the seizing creditors of their claim that his rent should be paid to the sheriff for their benefit.

The seizing creditors intervened in the suit, and reciting the facts of their seizures, as above set forth, they pray that the defendant be condemned to pay to them. The issue is, shall defendant pay the rent accruing after the seizure to the plaintiff or to the intervenors ?

The luminous opinions, original and on rehearing, in the case of Summers vs. Clark, 30 A. 346, conclusively settle the principles of law which govern and decide-this case. These are:

1st. That the seizure of the immovable property of the judgment debtor vests in the sheriff the right to receive, for the benefit of the seizing creditors, the fruits, rents and revenues of the property from the date of seizure. O. O. 466; O. P. 656.

2d. That Arts. 2264 and 2266 of the Eev. Civil Code — providing substantially that all sales, contracts, judgments and acts, affecting or concerning immovable property, not recorded according to law, shall be utterly null and void except between the parties, and without any effect as to third persons, apply to leases of real estate as well as to other contracts.

3d. That the possessor of immovables, under such an unrecorded lease, even though he may have paid, in advance, the rent for the entire term, in cash or negotiable notes, is vested thereunder with no rights whatever as against a seizing creditor of the lessor.

4th. That, in such case., the effect of the seizure, as between the lessor and the lessee, by reason of the disturbance of the enjoyment of the thing leased by the latter, is to dissolve the lease, and to give him the right to abandon the property, and to claim from the lessor the restitution of the rents which may have been paid in advance.

5th. That if, instead of abandoning the property, the lessee, with the consent of, or without opposition by, the sheriff or the seizing creditor, elects to retain possession, after the seizure, without change of terms, this operates a tacit reconduction or attornment, in favor of the seizing 'creditor, during the term of the seizure, at the same rate of rent. Eev. C. C. 2688, 2689; 5 A. 300, 174.

These principles, stated in our own language but legitimately dedueible from the decision above referred to, are, in our judgment, scientifically correct, and, when applied to this case, they obviously dispose of it, upon the undisputed facts, and without the necessity of solving the issues raised in the evidence as to the real relations of Thomas C. and William E. Anderson, under the lease.

It is sufficient to say that, at the time of seizure, the property was unaffected by any recorded lease, and, quoad the seizing creditors, stood, therefore, precisely as if it had not been leased at all. The effect of the seizure was to vest the creditors with the absolute right to the subsequent rents, the amount of which is not disputed.

Comeau, no matter whose lessee he was, was released from his obligations to his lessor, by reason of the disturbance of his enjoyment of the thing leased, and the suggestion that he may be compelled to pay twice, both to the plaintiff and to the intervenors, is abhorrent to common sense as well as to justice.

The complaint, by Anderson, of Oomeau’s failure to record the lease, cannot serve as the foundation of any legal right against the latter. It is not pretended that there was any agreement between him and Anderson that he should record it, and the law imposed upon him no such (/• obligation.

The objections urged to the seizure of the town lot, on the ground that notice was not served on Comeau, has no force. The notice to the ■seized debtor, and the taking possession by the sheriff, were the only steps required by law. The seizures were, in all respects, perfect and complete.

The judgment of the lower court allowed the plaintiff eighteen dollars and decreed the balance of the rent to the intervenors. The ground upon which the allowance to plaintiff was made, is not stated in the judgment or opinion, but it is suggested that it was based on the rent accruing between the date of the transfer of the lease to Comeau and the date of the seizure. Appellant complains that, in estimating this amount, the judge committed an error of calculation — the period being fourteen days and amounting, at the rate of $100 per month, to $46 62, which would entitle him to an additional allowance of $24 62.

This error of calculation, if it be such, should manifestly have been called to the attention of the lower court. Not having done so, plaintiff cannot take advantage of it to amerce the appellees in costs considerably exceeding the amount of the error. The maxim de minimis applies. Kohn vs. Schooner, 5 A. 25.

The judgment appealed from is, therefore, affirmed, at appellant's costs.


author: Bermudez, C. J. Todd, J.

text:
    No. 1124.
    The State ex rel. T. W. Nelson vs. The Police Jury of the Parish of St. Martin.
    The Relator, having a judgment against the Parish of St. Martin for certain warrants, drawn under a Resolution of its Police Jury that they should he paid from the taxes of the years 1865, 1866,1867 and 1868, seeks by Mandamus to compel said Parish to levy now ¿i sufficient tax, according to the rolls of the current year, to pay said judgment. Sold that the Relator’s right is limited to the terms and conditions under which the warrants were issued, and that he is not entitled to the levy of the tax prayed for.
    APPEAL from the Twenty-first Judicial District Court, parish of St. Martin. Fontelieu, J.

      Breaux & Hall for the Relator and Appellee:
    Pirst — Notice to counsel of the day of assignment merely, of case pending, is sufficient. Mooney vs. Hopper, 3 L. 445j Cooley vs. Seymour, 9 L. 276.
    Second — Counsel coming into case, bound by agreement in writing made by counsel having control of case at date anterior, district attorney was, therefore, bound to try the case as requested.
    Third — The case was remanded simply to ascertain whether the original case of Nelson vs. St. Martin was founded upon a contract or not; it is now too late to urge any defense which could have been urged on the trial of the case. 32 An. 884 ; 28 An. 578.
    Fourth — As to all defenses now attempted to be urged, the plea of res adjudieata prevails. 28 An. 578.
    Fifth — Mandamus should be made peremptory. 32 An. 747; 96 IT. S. 607.

      G. H. Mouton, District Attorney; Alcibiades DeBlanq, J. E. Mouton and Edward Simon, for Defendants and Appellants:
    First — An order to show cause why a mandamus should not be made peremptory is a rule, and the defendant is entitled to notice under article 841 C. P.
    Second — The judgment of the Supreme Court remanding this case was equivalent to an indefinite postponement, and the defendant was entitled to notice of the order fixing the case to be tried in chambers, in the same manner as if plaintiff had taken a new rule. No one can be forced to go to trial without notice or citation.
    On the Merits.
    Third — The act of the president of a police jury is not the act of the police jury, and the consent of the president of a police jury given to a contract is not the consent of the . police jury, unless authorized or sanctioned by that body in the manner provided for by law.
    Fifth — Police juries cannot appropriate money and levy taxes, except it be by an ordinance or resolution; and all such ordinances or resolutions must Resigned by their president and attested to by their clerk; until then it is but a mere project.
    Fifth — There can be no contract without the concurrence of the consent of the contracting parties.
    Sixth — The certificate of a clerk pro tern, of a police jury that a certain resolution or ordinance of a police jury exists, is not conclusive of the fact, and is of no weight in presence of most positive proof to the contrary.
   The opinion of the Court was delivered by

Bermudez, C. J.

The relator applies for the levy by mandamus of a special tax, by the defendant, to pay a judgment in his favor for $4500, and interest, against the parish of St. Martin.

Several times has the relator already submitted his grievances to this Court. 28 An. 578; 30 An. 1103; 32 An. 884.

The case was before us at last term. We found the relator in presence of the defense, that the law under which he sought relief had been repealed, and that the proceeding was unwarranted. To this attack he replied that the repeal was inoperative, as his judgment rested on a contract, shielded by the Constitution of the United States, which protects the obligations thereof from all impairment.

There was no allegation of a contract in the petition. Still, with a view to afford the relator an occasion to amend, we thought it our duty < «in furtherance of the ends of justice, to remand the case, in order that the relator may have an opportunity of establishing that his judgment is founded on a contract, if such be the case, and that the defenda nt may adduce such further evidence and make such other defenses as the nature of the suit may require,”. 32 An. 888.

We did not mean or say, that the case in which the judgment relied upon was rendered, should be reopened, and that the issues involved and determined should be tried de novo. We would have been powerless to do so. We merely intended to permit the relator to allege and prove a material fact, in support of the present proceeding, viz: a protected contract. ‘

On the trial, on the remandment, he, however, assumed to prove, in the absence of averment, the existence of the contract invoked, not only by the record in which the judgment was obtained, but also by supplementary evidence, to the introduction of which objection was made, the propriety of which we deem it unnecessary to pass upon.

Conceding arguendo, that the relator has averred that his judgment is predicated on a contract; that the record in the case mentioned and the additional proof establish a contract (questions upon which we express no opinion), we are irresistibly driven to the inquiry, whether the relator, under his judgment and under the contract, is entitled to the special tax which he demands, over and above the constitutional limit, if a transgression be necessary.

The judgment rendered has become definitive. It constitutes res judicata, and can no longer be impugned, as to issues involved and determined. Whatever issues it settles, are irrevocably conclusive upon the parties to it; but what is it, that was at issue; what is it that it adjudicates; what is it that it is based upon ?

The question presented for solution was: shall the plaintiff recover judgment for the amount claimed, and shall a tax be levied to pay such judgment ? The issue was not, whether the claim was based on a contract or not; there was no contention on the subject; and the judgment does not pass upon any such question. It is true that the defendant might, if a contract existed, have resisted the prayer for the levy of a special tax, and thus raised an issue as to the existence and validity of such contract. The defendant did not do so, and no issue was formed and determined on that subject. The plaintiff and the court which rendered the judgment, acted, no doubt, under the impression -that the law then in existence required that a provision should be made at the time plaintiff’s claim was liquidated, — for its payment by the levy of a tax. R. S. Secs. 26, 28, 29, 30, 47, 48 and 49.

The judgment, therefore, was simply for a sum of money and for a tax to pay it. ■ It would have necessarily been the same, had the suit been one for damages, founded on no real contract at all.

We, therefore, remanded the case for information as to the consideration of the judgment, in order to enable us to determine the question of impairment of the obligation of a contract, raised by the relator.

But, were it not so, the right of the relator to a tax has been by himself submitted, as res nova, for determination.

By the judgment rendered in 1873, liquidating his demand, a tax was ordered to be levied to pay it, at a sufficient rate per cent, upon the assessment of the current year.

It is manifest that this judgment has not been satisfied by payment or executed by the levy of the tax directed, otherwise why the present proceeding ?

By the lapse of time and the force of circumstances, it is clear that this judgment, as regards the levy of the tax, has ceased to be executory, and has passed out of existence, inasmuch as the defendant cannot, under its terms, be required to do nunc, in 1881, what it directed to be done tunc, in 1873.

By the present proceeding and by his course in the lower court, in adducing evidence other than the record in the case in which the judgment was rendered, the r.elator has admitted his legal inability to have that portion of the judgment for the tax, vi terminis, executed, and its consequent caducity. He has abandoned all pretensions to its enforcement, and seeks now at the hands of the Court another and different judgment, allowing him a tax of -- per cent, on the property of the parish, according to the assessment rolls thereof for the current year, to pay his judgment of 1873. He has thereby reopened the question of his right to such a tax, and of the existence, validity and extent of his claim under the contract.

The judgment of 1873 fixed no percentage rate of assessment, and so was not executory, as it left the quantum of the rate within discretion. The judgment appealed from is definite, and directs a levy of ten mills, if necessary, over and above the quantum of taxation, limited by article 209 of the Constitution.

As the relator has undertaken, not only to show a specific contract, but also the nature and extent of that contract, he has opened the door to the defendant, to establish that, under the terms of such contract, he is not entitled to the remedy sought by him.

What is the evidence now before us on the subject?

We gather from the record, as it is now presented, that the judgment was obtained on two notes or bonds or obligations signed by the president of the police jury of the parish of St. Martin, on the 5th of October, 1868, purporting on their face to have been issued in pursuance of authority delegated by a resolution of that body, adopted on the 16th of July previous, and identified with a notarial act of even date with them.

The resolutions authorized the president of the police jury to draw on the parish treasurer warrants in favor of the municipal authorities of the town of New Iberia, for $4500, for the building of a bridge over Bayou Teche, within the limits of the corporation, payable, to the extent of $1000, out of a special appropriation on the tax of 1866, and for $3500, out of any surplus funds in the hands of the treasurer, the proceeds of the taxes of 1865, 1866,1867 and 1868.

It was not until the 5th of October following, that an act was passed between the president of the Police Jury and the town authorities of New Iberia on the subject, and that the warrants, under the form of promises to pay, were drawn. By Act 208, approved. October 30th, 1868, the town of New Iberia was detached from the parish of St. Martin, to form part of another parish known as the parish of Iberia. The act is silent as to the mode of payment of the indebtedness incurred and to be satisfied by the parish of St. Martin, enuring to the benefit of the detached territory. To all appearances, it was only after the dismemberment had been effected, that the bridge was contracted for and constructed. There is nothing to show that the work was done, but the inference is unavoidable, from the fact that the obligations were uttered by the municipal authorities of New Iberia and are now held by the relator, who has alleged and established title to them, contradictorily with the police jury of St, Martin parish, in the shape of the judgment declared upon and made the foundation of the present proceeding. Those obligations were the inducements offered and accepted for the construction of the work of public improvements.

If it be legal under the peculiar and unfortunate circumstances of this case to fasten the responsibilty for the payment of those obligations on the parish of St. Martin, it is likewise lawful and just besides, to hold their owner to a strict observance of the terms and conditions under which they were issued, which he accepted, and which have not been, in any manner, subsequently modified by the parish of St. Martin. While the relator is entitled to all the rights which the “ promises to pay,” under the resolution, the act and the judgment, confer, — he cannot escape the obligations which they impose or the limitations with which they have been surrounded.

The resolution of the 16th of July, 1868, being expressly referred to in the body of the obligations owned by the relator, forms part of them, the more so as it is also mentioned and reiterated in the notarial act with which they are identified.

If there exist a contract, it is that evidenced by the resolution, the act executed in furtherance of it, and the obligations uttered in conformity with it, and which were recognized as binding on the parish of St. Martin. To that contract the relator points as the foundation of the present proceeding, — of that contract only, can he seek a specific performance. Under that contract he is entitled to be paid in a particular manner exclusive of all others, by specific appropriation and covenant.

The resolution to which the obligations refer declare that these shall be paid to the extent of $1000 out of taxes of 1866, and to the extent of $3500 out' of any surplus funds in the hands of the parish treasurer as the proceeds of taxes of 1865,1866,1867 and 1868.

The relator seeks in this action the immediate levy of a tax on the taxable property of the parish according to the assessment roll of the current year, sufficient to realize the amount needed to pay the judgment in his favor for $1500, with interest and costs.

He is clearly not entitled to that relief.

In ruling as we do, we leave out of view not only article 209 of the Constitution in force, but also Act 56 of 1877, charged as impairing the obligation of the alleged contract, and which were both intended for public relief. We are thereby dispensed from the necessity of determining the question of impairment of such contract. We decide that, under the Constitution and laws of the State, and under the evidence, we are justified in restricting relator to the terms of the contract which he invokes, and which provides for payment of his claim, in a manner different from that which he demands. We hold the parties to their engagements and render them the justice to which they are entitled, under the exceptionally complicated circumstances of the case submitted for determination.

We think the judge a quo erred in his conclusions.

It is, therefore, ordered and decreed that the judgment appealed from be reversed; and proceeding to render such judgment as should have been rendered, it is ordered, adjudged and decreed that there be judgment for the defendant, rejecting the demand of relator, with costs in both courts.

Messrs. Justices Levy and Fenner recuse themselves: the former having been of counsel in the ease, the latter having been oonsulted as counsel in a similar case, and being individually interested in an analogous suit, to be determined in the same manner as the present one.

The remaining three members of the Court being unable to concur, their Honors G. W. Hudspeth, District Judge of the District Court for the Thirteenth Judicial District, and John Clegg, Judge of the District Court for the Twenty-fifth Judicial District, were called upon, under the provisions of article 85 of the Constitution, to sit in the place of the Justices recused, and have done so.

Mr. Justice Tood dissents from the opinion and decree of the Court, thus composed of their Honors E. Bermudez, Chief Justice; F. P. Poché, Associate Justice; and G. W. Hudspeth and John Clegg, District Judges.

Dissenting Opinion.

Todd, J.

On the 29th of November, 1873, the relator obtained a. j udgment against the parish of St. Martin for $4500, with eight per cent, interest per annum thereon from the 5th of October, 1868. No appeal was taken from this judgment. In 1875 the parish brought an action to annul this judgment, on grounds assailing its consideration, and the authority of the police jury of the parish to contract the debt on which it was rendered. This action was brought by appeal to this Court, which rejected the demand for the reason declared, “ that all the defenses to the judgment there urged might have been pleaded as defenses to the suit in which the judgment was rendered.”

See James S. Robichaud, President Police Jury, vs. Thomas W. Nelson et al., 28 An. 578.

The judgment against the parish in favor of relator, rendered in 1873, as stated, ordered the assessment and collection of a special tax sufficient to pay the amount thereof, the tax to be levied and collected, by the terms of the judgment, immediately after its rendition.

The relator alleging that, notwithstanding repeated demands, the Police Jury of St. Martin had refused to pay the judgment or assess any tax for its payment, applied to the District Judge of said parish for a mandamus to compel that body to assess and the tax collector to collect a sufficient tax to pay the debt. The mandamus was granted and made peremptory by the District Judge. An appeal was taken from his decision, and the case came before this Oourt at the last term held here (Opelousas) in 1880.

The case was heard on appeal and remanded to the lower court. The cause or reason of the remanding will be more fully understood by referring to the language of the court in the opinion rendered on the occasion, which I quote in part, the part bearing on this particular point, as follows. “ The present proceeding is instituted against the Police Jury of the parish of St. Martin, and has for its object to compel them by mandamus to assess, collect and apply a special tax for the payment of the relator’s judgment.

“ The application is resisted on two grounds :

“1. The State and parish tax collector was not made a party.
“2. The law under which the judgment was rendered for the tax and application of the tax was repealed by Act No. 56 of 1877. As a corollary, it was argued in the pleadings that said law being essentially a remedial law its repeal did in nowise impair the relator’s rights, but merely suspended or abolished one of the means by which his said vested right could be exercised or executed; it is, therefore, valid and constitutional. The judge directed the assessment of a special tax of one per cent and the police jury has appealed from it.
“ Eirst. The State and parish tax collector was served and has joined issue, and is therefore a party.
“ Second. The Act of 1877 should be no bar to the exercise of the remedy accorded by law to the plaintiff, and which was in force at the time he obtained his judgment, and which', not only theoretically but practically, formed part of that judgment, provided that judgment be founded on a contract.
“The only evidence before us is the judgment itself. Neither the pleadings nor the evidence on which the judgment was rendered are in the record. The very petition in the present proceeding is silent on the subject of the obligation of the parish to pay the judgment as springing from a contract.” ’*******
“If the judgment relied upon was not founded on a contract, we would be powerless to enforce its payment in the manner proposed, prohibited, as we would be from so doing by article 209 of the Constitution of 1879, limiting taxation to ten mills, as was held in State ex rel. Folsom vs. City of New Orleans, recently decided.” * * *
“We think it our duty, in furtherance of the ends of justice, to remand the case in order that the relator may have an opportunity of establishing that his judgment is founded on a contract, if such be the case, and that the defendants may adduce such further evidence, and make such other defenses as the nature of the suit may require.”

It is clear to my mind, from the foregoing, that the object of remanding the proceeding to the lower court was to ascertain whether the judgment in question was founded on a contract or not. If it should prove, according to the evidence, to be adduced in the lower court — to be founded on a contract, then there was a strong implication, according to my construction, of the language of the former opinion just quoted, that, a contract being shown, as the basis of the judgment, then the relator would be entitled to the remedy sought, and the mandamus would be made peremptory.

It in effect said to the relator: return to the lower court, prove that your judgment was upon a contract, and receive your writ to compel its payment.

It is stated in the opinion of the majority of the Court just read, that the terms of the remanding did not authorize or mean a re-opening of the case, in which the judgment had been rendered, with a view to the admission of evidence affecting the merits or consideration of the judgment. Besides, it was beyond the power of this Court to remand for any such purpose. The judgment had been rendered for seven years or more, and a demand for its nullity had been rejected. It was res adjudicate, a finality conclusive as to the fact that the parish owed the relator the debt evidenced by the judgment. Whether it was a righteous or an unrighteous debt was beyond inquiry. The only question left open to be asked and answered was: was the judgment founded on a contract, or did it grow out of a tort; for it must have been based on one or the other.

The case was remanded, the necessary inquiry made and the evidence adduced which, upon my mind leaves not the shadow of a doubt that the judgment against the parish of St. Martin, which the relator is here before us asking to be enforced, was founded on a contract; and in my opinion, he has fulfilled the sole condition on which the exercise of his right was suspended by our previous decree, by establishing that his judgment was founded on a contract. With this showing, I think he can now rightfully claim the remedy he seeks. To refuse it, would be, virtually, in my opinion, denying him the protection to which he is entitled under the clause of the Federal Constitution forbidding the impairment of a contract; a protection which this Court recognized as bearing on this question in its former opinion referred to, and more emphatically in the case of the State ex rel. Marlin vs. Police Jury of Caddo, 32 An. 1028, when it declared, referring to the obligations of another parish, that “the contract in existence between the bondholders and the parish of Caddo is protected from impairment by the Federal Constitution, and must be enforced.” This was the language of an unanimous Court, as was that quoted above from our former opinion in this case.

The judgment was rendered upon notes executed by the President of the police jury of St. Martin, and those notes given for the building of a bridge.

I see no reason for extending inquiry beyond those simple facts, as they, alone, have a bearing on this question of a contract. And in view of this single and simple issue, in the present state of the proceeding before us, I cannot readily appreciate the bearing and pertinency of the questions discussed in the majority opinion about the injustice of the debt or the hardship of its' payment by the debtor, particularly since it is admitted in that opinion that the judgment is res adjudicada. Nor do I find any thing in the course pursued by the relator’s counsel in the introduction of his evidence on the last trial in the lower court upon the question of contract or no contract, that opened the way to a broader investigation, and rendered the matter mentioned a legitimate subject of discussion in this case. All that he did in this connection strictly pertained to proving his contract.

It is highly probable, that if the considerations, now so ingeniously and ably urged touching this debt, had been used as defenses against the demand before judgment, the judgment would never have had an existence. This Court in the decision referred to in the suit of nullity cited (28 An. 578), declared that similar considerations, or others quite as formidable, though urged in a proper action, and at a more seasonable time, could not be listened to. I am equally of that opinion now.

Nor can I see any thing in the failure or refusal of the judgment debtor — the parish of St. Martin- — -to obey the mandate of the Court embraced in the judgment, and levy the tax ordered to pay the debt at the time ordered, can now be held as giving the parish an immunity from the debt, and enabling it to so profit by the default, as virtually to destroy the remedy of the creditor, and leave him with a barren judgment, stripped of all means of enforcing it. Such I construe to be the effect of the decree just rendered, that it restricts him expressly to the tax ordered in 1873 by the judgment, when rendered, as the sole resource for getting his money, when it must be apparent that no such fund was ever raised, and had it existed, would long since have disappeared.

For these reasons, hastily prepared in the limited time allowed me, I dissent. ,


author: Poché, J.

text:
    No. 1127.
    C. C. Duson, Curator, et al., vs. Lastie Dupré et al.
    The sale of Plaintiffs’ interest in the land sued for in a petitory action, for a fixed price and without warranty, is the sale of litigious rights, and the ven dee being tl e sheriff of the court in which the suit is pending, such sale is null and void. The fact that the suit is still carried on, alter the transaction, in the name of the original Plaintiffs, does not prevent the nullity.
    APPEAL from the Thirteenth Judicial District Court, parish of St. Landry. Ogden, judge ad, hoc.

      John JE. King for Plaintiffs and Appellees:
    ¡First — What the law means by tbe sale or transfer of a litigious right, is a sale with a fixed price, where there is no guarantee of the claim, and where the sale is at the purchaser’s risk. Unless these requirements concur there can be no sale of a litigious right. Pothier, Vente, 5R3, p. 335.
    Second — A sale by the heirs of their claim to a tract of land which is in litigation, for a price payable only when the litigation shall have terminated, and when the claim shall have been confirmed and validated by a judgment, is not a sale of a litigious right. C. O. 2457, 2043, 2044.
    Third — Such a sale is made with a suspensive condition, to take effect only on the happening of the stipulated event, and the claim thus purchased is not at the risk of the purchaser, while it is guaranteed to him. O. O. 2044.
    ¡Fourth — Such a sale conveys to the purchaser neither property nor ownership in the claim purchased, the title to which remains in the seller until the event has happened which validates the claim. C. O. 2471; 6 ¡R. 172.
    ¡Fifth — Such a sale is not a present and executed sale, but is rather a promise to sell at a future time, when the claim shall be out of litigation, and legalized by a judgment. C. C. 2462; 13 An. 361; 17 ¡L. 448 ; 10 An. 160.

      Sixth — Such a sale is a sale or promise to sell a judgment, or a valid title, neither of which is a litigious right. 6 It. 172; 2 An. 60.
    Seventh — The party against whom a litigious right has been sold, may get himself released by paying to the transferee the price and interest; but to avail himself of this provision, he must pay or tender the price as soon as he is made acquainted with the transfer. C. C. 2652 ; 3 An. 626.
    Eighth — If the defendant, who seeks to get himself released by paying the price, continues to contest the suit, raises difficulties as to the right of the plaintiff to recover his debt, and protracts the litigation, he defeats the very object of the law. and cannot avail himself of the provisions which the law has established in his favor for the purpose of terminating litigation. To permit him to do it, would be to defeat the very object of the law. Pothier, Vente, 597, p. 343; 2 Troplong, Vente, 999, p. 567; 6 -Marcadé, p. 355; 4 An. 105; 22 An. 342; 24 An. 249.
    Hintli — The sale of a litigious claim to an attorney under C. G. 2447 does not extinguish the claim itself. The nullity of the sale does not involve the destruction oí the thing sold. The nullity is relative and may be avoided by the debtor; but what is avoided is the sale of the litigious right, not the right itself, which may still be enforced by the vendor, though the nullity have been decreed in proceedings by the vendee against the debtor. H, O. Cas Light Co. vs. Webb, 7 An. 168; Troplong, Vente, Ho. 196; Duranton, lib. 3, title 6, Ho. 145. »
    Tenth — The heirs of a vacant succession, who have not presented themselves for recognition to the Probate Judge, cannot interfere with the functions of the curator. Until they present themselves according to law, the curator is hound to take all necessary steps for the proper settlement of the succession. 2 An. 538.

      Lewis & Bro. for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

C. C. Duson, as curator of the succession of Louis Blanc, and E. E. Perrodin, as attorney of absent heirs, seek by the petitory action to recover a valuable tract of land situated in this parish, which they allege to be the lawful property of said succession and in the illegal possession of defendants. Among other defences, the defendants urge by way of peremptory exception that plaintiffs cannot maintain this action, on the ground that since the institution of this suit, 'which was filed on the 24th of October, 1879, C. C. Duson purchased on the 5th of January, 1880, from the heirs of Louis Blanc, all their rights, titles and interest in and to the land in controversy; that, therefore, Duson, personally, is the real party plaintiff in interest; but that, being at the time of his alleged purchase the sheriff of the parish of St. Landry, his acquisition of the interest of such heirs, being the purchase of a litigious right, was null and void under the provisions of Art. 2447 C. C. Plaintiffs have appealed from the judgment of the lower court, maintaining this exception and dismissing this suit.

The record shows that, by authentic act passed on January 5th, 1880, Jules A. Blanc and nine other persons, claiming to be the legal heirs of Louis Blanc, sold without warranty to C. O. Duson, “ all their and each of their right, title, estate, claim and demand, if any they have, both at law and equity, and as well in possession, as in expectancy in and to” the tract of land which is the subject-matter of this litigation, and which had been acquired by their ancestor Louis Blanc from the succession of Antoine Blanc.

The terms and conditions of the sale are contained in the following words:

“ Thus done for and in consideration of the price and sum of twelve hundred dollars, which said Duson agrees to pay to said heirs or to each of them, in proportion to his or her several interest, in the event of the successful recovery of said land, and immediately upon the happening of such event,” &c.

Plaintiffs argue in the first place that this contract does not fall within the scope of the prohibition contained in Art. 2447 O. 0., which reads as follows :

“ Public officers connected with the courts of justice, such as judges, advocates, attorneys, clerks and sheriffs, cannot purchase litigious rights which fall under the jurisdiction of the tribunal in which they exercise their functions, under penalty of nullity, and of having to defray all costs, damages and interest,” because the contract does not contain the elements of a sale of litigious rights,, in this that the sale depended upon a suspensive condition, which was a future and uncertain event, and because the purchaser took no risk under the uncertainty of the future event, having no purchase price to pay in the event of the failure to recover the lands for the succession of Louis Blanc, and they confidently rely upon the following principle enunciated by Pothier in support of their conclusion:
“ Lorsqu’une eréance de cette nature est vendue a quelqu’un pour un certain prix, pour que l’acheteur la fasse valoir a ses risques et a ses frais, et sans qu’on la lui guarantisse, c’est ce qu’on appelle une vente de droits litigieux, ou de créances litigieuses.”

We accept this, as a correct definition of the sale of a litigious right, which is also defined in our Code, Art. 3556, paragraph 18, as a right which cannot be exercised without undergoing a lawsuit, or a right about which there exists a suit or a contestation. C. C. Art. 2653.

We shall now examine the elements of the sale, as indicative of the intention of the parties, so as to ascertain whether the purchaser was to pursue the rights which he acquired at his risk, and whether such rights were transferred without warranty from the vendors. A careful examination of the act shows that it is exactly what it purports to be: a sale by the heirs of Louis Blanc to C. C. Duson of all their rights and titles to the lands which are in suit, and in which suit, as the record shows, there was a contestation, and in which issue had been joined by the defendants.

It also appears from the act that, in addition to and immediately following the recital of the terms and conditions of the sale hereinabove quoted, the following stipulations were contained in the deed or transfer: “ And should the said Duson recover less than the whole of said land, then he shall be bound to pay such proportion of said price as the value of the part recovered shall bear to the value of the whole.” “ Thus done without any warranty or guarantee of title whatever on the part of said heirs.” We, therefore, hold that this contract contains the three essential requisites laid down by Pothier as the characteristics of a sale of a litigious right: First, it was made for a fixed and stipulated price, the sum of twelve hundred dollars; second, the purchaser was to pursue his acquired rights, or recover the lands purchased, at his own risk and expense, or, in other words, the purchaser, the sheriff of the court in which the suit was pending, was to become a litigant in the court of which he was the executive officer, for the recovery of valuable rights which he had purchased pendente'lite; and third, his vendors were ,expressly released and exonerated from the usual warranty of vendors, touching the validity of the rights which they purported to transfer to their vendee; the purchaser was without recourse on his vendors, even if on trial their capacity as heirs- had been denied and disproved. 'The conclusion is, therefore, irresistible, that the rights which Duson acquired in this transaction were litigious rights, involved in a suit pending before the court of which he was the sheriff, and that his contract falls under the prohibition enunciated in Art. 244 of our Code, and is, therefore, a nullity. 9 M. 184; 4 An. 174; 7 An. 164; 25 An. 557.

Plaintiffs’ counsel, in his brief, admits in so many words that, from the act the intention of the parties was manifest, that Duson was "to prosecute this suit to Unal judgment,” the very act which the provisions of the Code contemplated to prohibit.

But plaintiffs contend, in the second place, that the declaration of the nullity of the sale of the litigious right does not destroy the right itself, or affect its validity, and that this suit being in the name of the succession of Louis Blanc, and not in the name of Duson personally, should be maintained by the Court, and tried on the issue involving alone the lawful title to the lands in controversy; which issue, as to the defendants, is the same, whether presented by the succession or by the vendee of the rights of the heirs.

' By his own act Duson has manifested the unequivocal intention to prosecute this suit, not for the benefit of the succession which he repre-' sents, but for his own personal advantage, in the vindication of the rights which he honestly believed to have acquired from the heirs of Louis’ Blan'c.

His purchase having been declared a nullity, the effect of such a declaration is to re-invest those rights to the heirs, who have doubtless the power and authority in law, under proper proceedings, and with proper showing of their intention to act on the faith of the nullity thus declared in their favor, to enforce their rights and their titles to the lands in controversy. But until they have thus spoken and thus acted, courts cannot and will not anticipate the future, and must deal with the parties as they actually stand before them. By maintaining this suit, under the circumstances disclosed by the record, showing the unmistakable attitude of an officer of the District' Court, seeking to enforce a litigious right acquired by him in direct contravention of a prohibitory law, this Court would itself violate a law enacted in furtherance of a wise public policy, and for the greater purity of the administration of justice. With the District Judge, we feel it our duty to exonerate this particular officer from the slightest imputation of moral turpitude, and to recognize in this transaction an honest error of judgment on his part; but it is nevertheless our duty to apply the nullity so clearly denounced by the law.

Understanding the judgment of the lower court as maintaining defendants’ .exception and dismissing plaintiffs’ suit, without prejudice to the rights of the succession of Louis Blanc, or of his heirs, to vindicate their alleged titles to these lands by proper proceedings, we find no error in the decree rendered by the judge a quo.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed at appellants’ costs.


text:
    No. 1115.
    Succession of Auguste Picard.
    Act No. 106 of the legislature of 1880, giving power to the Clerks of the District Courts, throughout the State, the Parish oí Orleans excopted, to appoint administrators of successions, does not dispense them with the necessity of rendering an order in making the appointment; and, until such an order is rendered, the appointment is invalid and a party with a better right to such appointment, is in time to present his application.
    APPEAL from the' Twenty-fifth Judicial District Court, parish of Lafayette. Mouton, J.

      M. F. Sigues for Plaintiff and Appellee:
    The beneficiary heir, present or represented, has preference over every other person, not excepting the surviving husband or wife. R. C. C. 1042 -1121; Sue. of Briscoe, 2 An. 268; Sue. of Williamson, 3 An. 261; Sue. of Brinkham, 5 An. 27. Curatorskip of an estate can only he granted by an order of court. 6 An. 7Q0; 3 An. £87; 26 An. 330.

      When appointed their powers cease when heirs present themselves and demand the administration. 4 L. 571; 4 An. 25; R. C. C. 1192.
    Preference may be claimed as long as the appointment has not been confirmed on an earlier applicant, though the opposition has not been made in the ten days. Sue. of McKinney, 4 An. 25; Sue. of Block, 6 An. 810.
    Deputy Clerks cannot exercise judicial functions. Constitution, Art. 122, Act 1880, 2flo. 106, Secs. 2, 7.
    Though the surviving spouse be a creditor or usufructuary of an estate, the beneficiary heir may still claim the preference in the administration. R. C. C. 1121; Sue. of Brinkham, 5 An. 27.

      M. E. Girard for Defendant and Appellant:
    An enabling order from a clerk is not necessary to authorizo him to perform duties he is authorized by law to perforin.
   The opinion of the Court was delivered by

Poché, J.

At the death of Auguste Picard his widow applied for the administration of his succession, and after public notice and legal delays, she took the oath and furnished her bond as administratrix, September, 1880. '

In December following, Aristide Picard, alleging that he was a son of the deceased by a previous marriage, and as a beneficiary heir of age and present, entitled to preference in the appointment of an administrator on his father’s estate, filed a petition opposing the right of the widow to the administration of said succession, on the ground that she had attempted to qualify as administratrix without an order of appointment, and that she had no letters of administration, concluding with a prayer for recognition of his superior rights, and for the appointment to the administration of the succession.

His opposition was sustained by the lower court, from whose judgment widow Picard has appealed. The record shows that, on September 27th, 1880, appellant subscribed an oath and furnished a bond, as administratrix of the succession of Auguste Picard, but it contains no order, either of the judge or of the clerk, appointing her as such. It is, in fact, conceded by her counsel that no such an order was ever granted, and he contends that under the provisions of Act 106, 1880, relative to the duties and powers of clerks of court, in all parishes other than the parish of Orleans, passed in furtherance of Art. 122 of the Constitution, no such order is necessary. He contends that the power to appoint administrators .being specially conferred to clerks, it would be an idle and useless ceremony for the clerk to issue an order to himself, directing the performance of a certain duty.

Previous to the adoption of that act, the power to appoint administrators was vested exclusively on the judge of the court, without whose order or decree the clerk was absolutely powerless to consider or act on the application of any one for appointment as administrator, and it, therefore, follows that without such au order, the act of the clerk in administering the oath of administrator to an applicant, and accepting his bond as such, would have been an absolute nullity.

The legislation authorized by Art. 122 of the Constitution and incorporated in Act 106 of 1880, did not have for its object, and cannot be attributed the effect of dispensing from the order appointing the administrator. Its only object was to invest the clerk with the power of making such appointment, a power which had been specially denied him by the Constitution of 1868, and a power which was required for a proper and a speedy administration of justice under the new Constitution of 1879, which had abolished the system -of parish courts, under which every parish had constantly present a probate judge, entrusted with the exclusive power to issue all orders and render all decrees necessary in the settlement of successions. The order appointing an administrator, is not an order from the clerk ordering himself to qualify the administrator, but it is a judicial function specially authorized by the act of the Legislature, and is the indispensable mandate of the court, under which alone the administrator is authorized to qualify and to represent the succession thus entrusted to him, and by virtue of which he becomes the officer of the court in the management of the succession.

To him it is his commission, as the commission of the Governor is the muniment of State and other officers’ titles to their offices. By the same act the clerk is authorized in certain eases to grant writs of injunction ; we can hardly conceive that it could be contended that, in the absence of an order granting the writ of injunction, the mere accepting by the clerk of the injunction bond would or could operate a legal stay of the execution or other proceeding sought to be enjoined.

¥e, therefore, conclude that appellant in this case has not yet been appointed according to law, as the administratrix of her husband’s succession, and that appellee’s opposition to her application is in time, notwithstanding the expiration of the ten days’ public notice. Succession of Block, 6 An. 810; Succession of McKinney, 4 An. 25; Hook vs. Richardson, 4 L. 571.

The question is thus narrowed down to the contest for the administration between the beneficiary heir of age, and the surviving wife without issue from the marriage. That the heir must be preferred is clearly settled by Art. 1121 of our Code, and, therefore, the judgment of the lower court is correct.

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


author: Levy, J.

text:
    No. 1125.
    Thomas B. Hopkins vs. The Louisiana Western Rail Road Company.
    On the Motion to Dismiss.
    The submission of tbe controversy in tins case to arbitrators, was mad.e witb tbe understanding tbat tbey should have power to act as amicable compounders. Under tbe law (Art. 460, C. ]?.), tbe judgment of tbe Court rendered upon tbe award, cannot revise it. It follows tbat tbe judgment itself is not appealable.
    APPEAL from the Twenty-fifth Judicial District Court, parish of Lafayette. Clegg, J.

      M. JS. Girard and JS. Simon for Plaintiff and Appellee.
    Arbitrators constitute an exceptional tribunal created by tbe parties, to wbom tbe law permits tbe parties to delegate a final and unappealable jurisdiction (when there is no fraud or misconduct) under tbe name of amicable compounders. 14 An. 323.
    In a submission to arbitrators, all questions put at issue by tbe pleadings fall within tbe powers of tbe arbitrators to decide. 31 An- 97, Jackson vs- Hoffmann.
    In an award of amicable compounders, the Court cannot correct what may appear to it errors, for tbey might have been caused by yielding to the dictates of equity. 13 An. 37.
    Tbe award of amicable compounders within tbe scope of their authority is conclusive as <to. tbe parties who agreed to submit, and is not reviewable l)y the courts. 31 An. 336 and 4 An. ' 148; 7 An. 171.

      Breaux & Hall for Defendant and Appellant.
    Suit of Hopkins vs. La. Western Railroad Co., Ho. 3215, not submitted to arbitration. There must be no doubt as to tbe submission. C. C. 3104.
    Ad invalid award°cannot be the basis of a judgment. Hennen’s Dig., Arbitration II, Ho, 29.
   On the Motion to Dismiss.

The opinion of the Court was delivered by

Levy, J.

Appellee moves to dismiss this appeal on the ground that this Court dismissed an appeal on the consolidated eases of 3214, the expropriation case, and 3215, the present injunction and damage case, for. want of jurisdiction ratione material, and, therefore, the question of jurisdiction having been thus decided, it is final and constitutes res adjudicata. In the decision relied upon by appellee, we said : “As to Hopkins, he was plaintiff in the injunction suit and defendant in the other ; the causes of action were different and distinct in the two suits, and it is untenable to argue that the two amounts involved in the two cases can be cumulated for the purpose of determining our jurisdiction of this 'appeal.” Thus we practically held that the cumulation for purposes of appeal, or to give jurisdiction to our Court on appeal, was improper and, therefore, the present case was not considered as being then before us for review. The year within which a devolutive appeal could be taken, not having expired, the appeal, if the case involved sufficient amount and was otherwise appealable, has been taken in due time.

Appellee, however, presents this further ground in support of his motion : That the judgment of the District Courtis based on an award' of compounders, which is not subject to our revision. Art. 460 Code of Practice contains the-following provision : “ But if from the submission entered into by the parties, it appears that they intended to give the arbitrators power to act as amicable compounders, the Court cannot revise the award. It must be homologated as it stands, in order that it may have the effect of a definitive judgment.” “ There are two sorts of arbitration: the arbitrators properly so called, and the amicable compounders.” C. C. 3109.

The appellant contends that the submission under which the award was made herein, was not to amicable compounders, but to mere arbitrators, and that the value of the land sought to be expropriated, the damages thereto and the matter in contest relative to the value of the land and damages thereto, are the subjects submitted for arbitration, and denies that the damages claimed in the injunction suit were also submitted for determination and award.

The record discloses, as appears in the order granting the first appeal, that cases 3214 and 3215 had been consolidated. The submission to arbitration, signed by the La. Western Railroad Co., by their attorneys, by M. E. Girard and E. Simon, attorneys representing the parties of the second part, and by Thomas B. Hopkins (who is not only plaintiff in 3215, the injunction suit, but also one of the defendants in 3214, the expropriation suit), sets forth as follows : “ It is hereby agreed by and between the La. Western Railroad Company of the first part, and the Oliver Boudreaux heirs, and the H. E. Laurence heirs and Zephirin Boudreaux jn his individual right and T. B. Hopkins, all of whom are named in a petition filed in the suits 3214 and 3215,” &c. * * *

“ That each of the parties of the first and second parts shall name an arbitrator and compounder to appraise the value of the property described in said petition, and damages and all matters in contest.” The oath taken was, “ to faithfully perform the functions incumbent upon me as arbitrator and compounder,” &c. The award is headed and reads as follows : “La. W. Railroad Co. vs. Thos. B. Hopkins and als., No. 3214, expropriation suit, and T. B. Hopkins vs. La. W. R. R. Co., No. 3215, injunction suit. In the above entitled causes the undersigned arbitrators and compounders, beg leave to report that they have executed their mandate and report their award as follows : ” &c. The award was homologated by judgment rendered in the two cases, 3214 and 3215, consolidated.

The terms of the submission itself, the action in connection therewith by the Court and the arbitrators and compounders thereunder lead us irresistibly to the conclusion that the submission, the arbitration and the award were to and by amicable compounders, and that, under the law on the subject, the award has the effect of a definitive judgment not subject to our revision.

The ruling of the Court in Davis vs. Leeds, 7 L. 476, is applicable to and covers this case : “ The submission, in the present case, clearly contains a graBt of power to the arbitrators, to act as amicable compounders, and consequently deprives the tribunals of the country of all authority to revise the award rendered in pursuance of it. Whatever has been done, in relation to matters actually referred to their decision, if done honestly, must remain without the possibility of revision, and as a necessary consequence, without alteration or amendment.” “If parties will submit their disputes to be decided by men chosen by themselves as judges, under the appellation of amicable compounders, they must abide their judgments, without hopes of having them revised by the courts of justice established by the Constitution and laws of the State. Such judges are not required to determine according to the strictness of the law. They are authorized to abate something of this, strictness in favor of natural equity.” Id. 4 An. 148; 1 An. 171; 1 R. 102; 28 An. 500.

Eor the reasons stated, we are without authority to revise the judgment, and this appeal is, therefore, dismissed at costs of appellant.

Justice Todd having been recused in No. 3214, referred to, takes no-part in this decision.


author: Fenner, J.

text:
    No. 1109.
    Mary Ann Petit, Wife, &c., vs. Stevens & Seymour et al.
    This is a suit for damages, "by a wife separated in property, against creditors of tlie husband,, tor having seized and sold goods which, she pretends, belonged to her and were in her-possession. Meld that the evidence shows conclusively that the goods belonged to the-husband.
    APPEAL from the Thirteenth Judicial "District Landry. Hudspeth, J. Court, parish of St..
    if. L. Garland for Plaintiff and Appellant:
    First — A wife separate in property from her husband is a third person. Her possession is as-complete and as distinct from that of her husband as the possession of any other person*
    Second — Her possession has the same legal effect as against her husband, or as against his creditors, as that of any other person.
    Third — Possession, with or without good faith, of movables is title by .legal presumption.
    Fourth — Legal presumption is proof, and must be rebutted, where the law allows rebuttal.
    Fifth — It is incumbent, then, on a seizing creditor of movables, who finds them in possession of a third person, to make clear that they do belong to his debtor. It is not sufficient to-prove that they do not belong to the possessor.

      Kenneth Baillio for Defendants and Appellees:
    The ownership of things or property is acquired by inheritance either legal or testamentary, by the effect of obligations and by the operation of law. C. C. 870.
    A contract of sale can take place between husband and wife only in the three special cases provided by law. O. C. 2446.'
    Counter-letters cad have no effect against creditors or bona fide purchases j they are valid as to all others. C. C. 2337.
    Possession is prima facie proof of ownership, and an adverse claimant must rebut this presumption by positive proof. C. C. 3434, 3454.
    The plaintiff must make his case clear. 11 M. 194; 3 N. S. 575 ; 6 hT. S. 207 * 12 P. 40, 95, 883.
    The burden of proof is on him who has to support his case by a fact of which he is supposed to be most cognizant, and the evidence of which is more within his power than that of his opponent. 11 M. 4, 194; 3 L. 534 ; 10 A. 639; 13 A 397.
    Conversations and admissions of one of the parties to a simulation are admissible in evidence, though made out of the presence of the other party. 29 A. 4.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff, wife of Abraham Milspaugh, and separate in property, alleges that she was the owner of a stock of goods contained in a certain store in the town of Washington, in this parish, which was seized and sold by defendants under a judgment against her husband; and for said wrongful seizure and sale, she claims damages to the amount of five thousand dollars.

After an attentive study of this huge record, we find that the pretensions of plaintiff are entirely unsupported by the evidence.

The contention, ably urged by her counsel, is that plaintiff was, at the time of seizure, in actual possession of the movables seized; that such possession vested her with presumptive title; and that, in order to succeed in their defense, it is necessary for the defendants to establish, not merely that the goods seized did not belong to the plaintiff, but that they did belong to their -judgment debtor.

Assuming plaintiff’s possession to have been established, the proposition, as above stated, would perhaps be correct, if the seizure of the goods were pending, and plaintiff were prosecuting a suit, by injunction, to restrain, the sale and release the seizure. But, here, plaintiff obtained no injunction; the sale has been made; the funds paid over; •and the execution is completed. Nothing remains but a suit for damages, based exclusively on the allegation that defendants have wrongfully seized, sold and appropriated to their use property which belonged to her. If it is proved that the property did not belong to her, the foundation of her action is removed; since, even if the property belonged to some person other than either herself or the judgment debtor ■of defendants, that person, and not the plaintiff, is the person damaged and entitled to indemnification,

The evidence, however, conclusively satisfies us:

1st. That plaintiff did not have possession of the goods seized;

2d. That she was not the owner thereof;

3d. That Abraham Milspaugh was both owner and possessor.

Prior to 1873, Abraham Milspaugh had, for many years, owned and conducted this store. At that time he had become heavily involved. One of his judgment creditors then seized and sold the stock of the store. It was bought in the name of his son, James H. Milspaugh. The seizing creditor’s debt was settled by notes of James H., endorsed by a responsible friend of the family. It is not pretended that James H. bought for himself, or that he expected to pay the notes. He bought for his father, under the expectation that his father should continue the business and pay the notes, and his father did pay the notes. The pretension that the plaintiff, and not the father, was the real purchaser in the name of the son, is not sustained by the proof, and, if it were, would not sustain plaintiff’s claim, because, at that time and for many years thereafter, plaintiff was not separated in property, and her purchase would not have operated differently from that by her husband.

If she was the real purchaser in the name of James H., the purchase enured to the benefit of the community. If she was not, how did she ever acquire title?- The nominal title remained in James H. until his death in 1879; and the real title was either in him or in the community subsisting between Mr. and Mrs. Milspaugh. He never transferred title to her after her separation; and the community or her husband could not have done so, because her separation suit established no separate rights against her husband.

It is clear that James H. Milspaugh’s purchase and title were mere shams, intended to protect the real ownership of A. Milspaugh from the assault of his creditors. James H. never denied, but always admitted, that the store was really his father’s. After the death of James H. in 1879, it became necessary to interpose another disguise; and a sham sale was made to R. B. Hewitt, a son-in-law. Though contradictory, the weight of the evidence is in favor of the proposition that this sale was made by A. Milspaugh. A counter-letter, however, was taken in favor of the plaintiff, evidently to establish a further refuge, in case Hewitt should die or leave. He did leave for parts unknown not long before the seizure by defendants; and, as a last resort, the wife opposes her own claim of title against these creditors. It has no origin in any of the modes of acquiring property recognized by law. It is supported by no evidence except occasional and suspicious assertions of ownership by the wife and acknowledgments thereof by the husband, totally inconsistent with the acts and conduct of both, and evidently designed to throw further clouds upon the true title of the husband. As to possession, every unsuspicious circumstance locates it in the husband. He rented the store. He transacted the business. The taxes and licenses were assessed in his name, when not in the name of Jas. H. Milspaugh. The presence of the wife in the store, and her occasional interventions in the business, are accounted for by the relation of husband and wife, and by the fact that the store and the matrimonial domicile were in the same building.

We have rarely encountered a ease of conflicting evidence, where the preponderance was more overwhelmingly in favor of one side of a case, and that is, here, the side of the defendants.'

It would be a useless waste of time to discuss the particulars of the testimony further.

It is, therefore, ordered that the judgment appealed from be affirmed at appellant’s cost.