text:
    No. 6706.
    Susan S. Maclin vs. The New England Mutual Life Insurance Company.
    After introducing in evidence, without any qualification, the certificate of the medical examiner, Defendant should not be permitted to impeach its integrity or assail the correctness-of its statements.
    A strongpHma facie case made out by Plaintiff, cannot be defeated by conflicting evidence.
    APPEAL from the Fourth District Court for the parish of Orleans. Houston, J.

      Thos. J. Semmes for Plaintiff and Appellee :
    Eirst — A party to a cause who, without reservation, introduces in evidence an official certificate, cannot impeach its integrity or the truth of its statements. ■
    Second — -The father of the insured died of Bright’s disease of the kidneys. Defendant company accepted an application in which it is stated the father died of paralysis. The company is estopped to avoid the policy on the ground of misstatement, paralysis not being a disease hut the consequence thereof, and the insured not knowing Ms father died of Bright’s Disease. This is so, even if the insured has guaranteed the truth of hie statement.

      Bayne & Renshaio for Defendant and Appellant:
    An applicant for insurance upon his life who makes statements as to his health, or as to the-cause of death of his parents in his application, upon the faith of which a policy of insurance issues, and which he warrants to he true, is .bound by the same, and if such statements are not true, the policy is vitiated and becomes null and void.
    Parties have, the right to make statements in their application for insurance a part of their contract and to warrant that they are true j such warranty must be literally and strictly complied with.
    Such warranty is not avoided hy a suggestion that the applicant believed the statement to be-true — -the express warranty being that the statements are in all respects true.
    A medical examiner, who wrote a certificate appended to an application for insurance, should, be allowed to state that he did not write certain words found in the certificate and that-these words were not true.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff, as beneficiary, claims $5000, as the-amount of a policy of insurance issued by the defendant company on the, 13th of April, 1874, by which the life of her son, John D. Maclin, was insured for her benefit.

He died' on the 15th of September, 1875, sixteen months after the insurance had been obtained and the policy issued.

On defendant’s refusal to pay, this suit was brought.

The grounds of resistance are: that several of the answers made by Maclin to the interrogatories propounded to him, at the date of his. application, were untrue. It is charged that he stated that he had had children’s diseases and none others; whereas, in truth, at the time, to his knowledge and that of his physician, he had Bright’s disease of the-kidneys; that he said he had never undergone any medical examination except on children’s diseases, whereas, in fact, he had been examined for Bright’s disease; that he had stated that his father had died of paralysis, whereas, in truth, he had died of Bright’s disease of the kidneys; that, in the medical examiner’s certificate appended to the application, the words “urine examined” were not written by the examiner, and that no examination was made.

After hearing, the lower court gave judgment for plaintiff, and the defendant has appealed.

The evidence shows the insurance and the death. It establishes prima fade plaintiff’s case. The record discloses, however, that on information accidentally received by the agent of the company here from a brother of the insured and otherwise, that their father had died of albuminuria, and that J. D. Maclin was himself afflicted with the disease, and had been suffering from it possibly for eighteen months, the facts were brought to the knowledge of the company, who answered requiring return and cancellation of the policy on account of the misstatement of the cause of the father’s death, and directing the agent, in case of refusal, to notify the insured that in the event of loss no payment would be made. Upon notification and refusal, Maclin was informed that the policy was avoided.

It is claimed that the objection taken to one defect waives all others and, consequently, that the resistance of the company must be restricted to that objection which relates to the misstatement of Maclin touching the cause of his father’s death; Bliss Ins. sec. 268; 17 Iowa, 176; but we deem it immaterial to determine the point.

Some twenty witnesses were heard below on behalf of both parties. We do not find that it establishes that Maclin knew, at the date of his application, that he was afflicted with the stated disease, or even that, in point of fact, he so was.

The family physician, Dr. Holliday, whose testimony, covering some fourteen pages, is uneontradicted and unimpeached, and to which we attach great weight, distinctly says that he could not make the assertion that Maclin had albuminuria on April 4th, 1874. He explains how the certificate which he gave on the subject is not binding, and does not shake his statement.

It is not shown that Maclin was under treatment for the disease in question prior to, or at the time of, his application. The medical examiner’s certificate annexed to the application, which was in defendants’ possession and which was introduced in evidence by them, shows that the urine of the applicant was examined. After introducing it in proof, without any qualification, the company could not be permitted to impeach its integrity, or assail the correctness of its statements. The court properly ruled out the attempts to explain, contradict or impugn its recitals.

The question of date is a material one, and is not settled differently by the declaration of the other witnesses, which, to some extent, are neutralized by adverse testimony. The depositions are somewhat conflicting, but they could probably be reconciled favorably to the pretensions of the plaintiff. Whatever they be, they are not such as can defeat the strong prima facie case made out by the plaintiff, in whose favor the balance of probabilities more than preponderates.

Neither do we find that Maclin misstated the cause of his father’s death, of which he was not aware. He declared that which he had heard and seen, and thought was the truth, namely: that his father died of paralysis, which is a symptom and not a disease. This declaration was sufficient to put the company upon inquiry into the cause of the effect.

Under the circumstances of this case, we think, with the District Judge, who saw and heard the witnesses and who could well appreciate their testimony, that the company is liable.

96 U. S. 242; 97 Mass. 148; 23 Conn. 244; Bliss Life Ins., sections 261 263.

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

Rehearing refused.


source: Caselaw Access Project

author: Levy, J.

license: Public Domain

text:
    No. 6759.
    Alfred Marchand vs. Warner Van Norden et al.
    This is a case of fraudulent dation en paiement set aside by the Itevocatory action, in which the plaintiff obtains judgment, decreeing that he should be paid out of the property thus unlawfully transferred, by preference over the other creditors of the fraudulent debtor, in consequence, (it seems), of his having had the transfer annulled by his suit.
    APPEAL from the Fifth District Oourt for the parish of Orleans. Rogers, J.

      W. S. Benedict for Plaintiff and Appellee.

      Lacey & Butler for Defendants and Appellants.
   The opinion of the Oourt was delivered by

Levy, J.

The plaintiff, Alfred Marchand, a judgment creditor of the Mississippi and Mexican Gulf Ship Oanal and Drainage Company for the sum of $5187 60, with eight per cent per annum interest thereon from 9th of January, 1872, and costs of suit, issued execution on his said judgment, which was returned nulla bona. Said judgment was recovered on the 15th of April, 1872. He avers in his petition herein, that said company, in order to cover fraudulently its property from its creditors, or to give an unfair preference to one of them, did fraudulently make a transfer thereof to one Warner Yan Norden, defendant herein; and on the 22d of November, 1872, by public act before A. Hero, Jr., notary public, fraudulently sold and conveyed to said Yan Norden certain dredge-boats, flat-boats, mules, wagons, horses, steam-tug, machinery, tools, fixtures, etc., etc., therein enumerated, for the pretended consideration ot $50,000, placed as-a credit on a pretended indebtedness of $161,962 86 of said company to said Yan Norden; that said company at said date was, to the knowledge of Yan Norden, heavily in debt, and he advised said sale and transfer to himself with the view and intent of assisting said company to evade the .law and shield said property from the pursuit of his creditors and to obtain a fraudulent preference, as a creditor, for such sum, if any, as was due to him, said Yan Norden, being impecunious and without capital or credit in any such sum. He further avers that, on the 3d of May, 1873, with the same intent and object of fraudulently securing a preference, and to further said object, said Yan Norden did, by public act passed before A. Hero, notary public, make a simulated pledge of said before-described property to the firm of E. O. Palmer & Go., to which firm he, said Yan Norden, pretended to be indebted for advances made, but who, in truth and fact, were interested with said Yan Norden in said transactions, and were acting in his name therein, said transfer embracing the entire property of said company, all which facts were well known to said Palmer & Co. and Yan Norden. He avers that said property is liable to execution on the judgment of petitioner. He prays that said sales and transfers be set aside and said property be decreed to be the property of said company and subject to the payment of its debts, and specially of the judgment of plaintiff over the claims of all other creditors.

The defendants filed an answer of general denial and the plea of prescription of one year.

There was judgment decreeing “that the sales and transfers to Warner Yan Norden, as set forth in plaintiff’s petition, be set aside; that the property described in the act passed before Andrew Hero, Jr., on the 22d November, 1872, be decreed to be the property of the Mississippi and Mexican Gulf Canal Company and subject to the payment of its debts, and especially of the judgment of plaintiff, with all interest and costs, in suit No. 9338 of the late Seventh District Court for the parish of Orleans, and now suit No. 38,172 of the Fourth District Court for said parish, (viz; the sum of five thousand one hundred and eighty-seven dollars and sixty cents with eight per cent interest per annum thereon from January 9th, 1872, until paid, with clerk’s and sheriff’s costs), over the claims of all other creditors.” .It was further decreed “ that whatever rights E. O. Palmer & Oo. may have in this matter they can assert at the proper time, and the rights of plaintiff are reserved to contest, in such proceedings as the law may permit, the claims of said E. O. Palmer & Oo. upon the property which is alleged to have been pledged to them;” and further, “ that the defendant, Yan Norden, pay all costs of suit.” Prom this judgment all the defendants took a suspensive appeal.

In plaintiff’s brief we find this statement: “ Plaintiff has filed an answer to the appeal praying absolute judgment against both defendants.” The transcript and record exhibit no such answer, while the certificate of the clerk of this Court, appended to the transcript, sets forth that “ no answer to the appeal or application for the amendment of the' judgment appealed from has ever been filed in the above entitled cause.” Hence, no amendment of the judgment in favor of the plaintiff will be considered by us.

The judgment of the lower court was based upon the reasons contained in the opinion of the judge a quo, and seem to us to be well sustained by the facts as shown in the record and the application of the law thereto. The testimony goes to show that, at the time the transfer of 22d November, 1872, was made the company was insolvent, and this fact was within the knowledge of Yan Norden. Yan Norden’s intimate connection with the affairs of the company, his actual control" of its operations, were of such a nature that it seems to us next to an impossibility that he could have been ignorant of its affairs, its liabilities, its pecuniary embarrassments and its actual insolvency. As well stated by the District Judge: “At the time of the last act of sale, whereby he acquired title to the drainage boats, mules, tools, etc., it must be remembered that, in May prior, he had obtained upon a, promise to advance money, the subrogation to all the rights and franchises of the company; and from the testimony of Mr. Moody, in the record, it appears that the canal itself, which he at one time ‘estimated to be worth $1,000,000 is now valueless’; ‘that the company has no assets or property, and that its stock has no value.’ ” We do not think the transaction as to the sale and transfer of the property was marked with good faith, but on the contrary, are satisfied that it was intended to give an undue preference to'Yan Norden over other creditors of the company. Besides, we concur with' the judge a quo in the opinion, that the transfer was, to all intents and purposes, intended as a daiion en paiement, and, as such, was given to secure' an unjust preference over creditors, and should, therefore, be annulled. C. C. 2655 to 2659; 1 Martin, 240; 4 N. S. 651; 13 An. 353.

The judgment appealed from is affirmed with costs»


author: Poché, J.

text:
    No. 8164.
    Louisiana Western Railroad Company vs. Hopkins, Kennedy, et al.
    Act No. 21 of the Legislature of 1878, chartering the Louisiana Western Rail Road Company, and giving it, (sect. 6,) the right to embrace several landholders as defendants in one expropriation suit, does not make the judgment in the premises appealable, on the score that the aggregate amount allowed to all such defendants, exceeds $1000, though the amount allowed to each respectively, is less than that sum.
    The proceeding in such case cannot be assimilated to a concursus of creditors.
    The Act in question did not and could not, under the Constitution, attempt to regulate the jurisdiction of this Court.
    The consolidation of two distinct suits between the same parties, in each of which the matter in dispute is less than $1000, does not vest this Court with jurisdiction.
    APPEAL from the Twenty-Eifth. Judicial District Court, parish, of Lafayette. Mouton, J.

      Breaux & Mall for Plaintiff and Appellant:
    Hirst — There was no p irtition of the plot of ground sought to he expropriated from the Boudreaux heirs nor of the grading thereon, the joint and undivided value whereof is in contest. Rec. p. 36-7-8.
    Second — Where suits are consolidated by consent of all parties, and one judgment is to be rendered, the actions must be considered as one in relation to the matters in dispute', and the joint amount involved is the test of jurisdiction on appeal. Heirs of Ballio vs. Prudkomme et al., 8 H. S. 338; Bowman et al. vs. New Orleans, 27 An. 501; State ex rel. Murtagh vs. The Judge of the Eighth Court, 23 An. 761; Marshall & James vs. Hall & Co.,9An. 92; Lartigue vs. White et al., 25 An. 291; Galt vs. O’Callaghan, 2 An. 984.
    Third — Where suits have been consolidated by consent, and the plaintiffs have been condemned in one judgment and suit to pay an appealable amount, the appellate court has jurisdiction. Rhodes vs. Schofield, 6 An. 352.

      M. E. Girard and E. Simon for Defendants and Appellees.
   Motion to Dismiss.

Tlie opinion of the Court was delivered by

Poché, J.

Plaintiff has taken this appeal from a judgment homologating the report of arbitrators in a suit for expropriation, of lands, brought by the company against fourteen different parties, whose lands were necessary for its right of way, and could not be obtained without judicial process.

In support of their motion to dismiss the appeal, defendants urge, among other reasons, that this Court is without jurisdiction, on the ground that the matter in dispute as to each party does not exceed one thousand dollars exclusive of interest.

Plaintiff in its petition alleged no value as to any of the tracts of land sought to be expropriated, and hence our jurisdiction must be tested by the amounts allowed to the respective parties by' the award of the arbitrators, as homologated by the lower court, and which are as follows:

To Hopkins, one of the defendants...........................1681 00

To Kennedy.................................................. 434 25

To Zéphirin Boudreaux....................................... 656 00

To the Lawrence minor heirs.................................. 315 00

To the heirs of age of Olivier Boudreaux, ten in number, sued separately............!....,............................. 2200 00

Plaintiff contends that these defendants were joined in one expropriation proceeding, under the express authorization in its charter, to be found in section 6 of Act 21 of 1878, which provides that the petition “ may embrace as many distinct parcels of land, though belonging to different parties, as the said company shall think proper to include in one application,” and that the aggregate amount allowed by the judgment to all the defendants collectively should be the test of our jurisdiction, as in the case of a conoursus, in which the entire value is to be distributed ratably among the several owners.

We cannot assent to this proposition. ■ We think that the object of the Legislature, in allowing the cumulation of several demands in one application, was for the purpose of facilitating the company in acquiring its right of way so as to expedite the construction of its road as a work of public utility, and for the purpose of curtailing the costs which would be incurred in the appointment and organization of several or many boards of arbitrators. But we cannot conceive that the statute can have any effect on the jurisdiction of this Court, which must deal with each land owner as a separate and distinct party, entitled to rights personal to himself and independent of those of his co-defendants. There is no community of interest between the various defendants; the evaluation of the lands and damages of each must be made separately, and the adjudication affects each separately and distinctly, as though they had been made defendants in so many different suits.

If the company had been satisfied with the award and judgment, and an appeal had been taken by one of the defendants, he certainly could not have invoked the entire value of the lands expropriated as the test of our jurisdiction. He would have been limited and confined to the vindication of his own separate and distinct interest, and the amount allowed to him by the award would have been held to constitute the matter in dispute. The company can claim no greater rights than any of its opponents, and must be governed bv the same rule.

Plaintiff is also in error in assimilating this proceeding to a concursus in which a fund is to be distributed, and the amount of which is the matter in dispute.

This position is antagonized by the very object of this appeal, which is to reduce the aggregate amount of the award, and is predicated upon the assumption that the amount of the fund to be distributed is not yet determined, but is the very issue involved in the appeal.

An admission by the company that the matter in dispute is the aggregate amount allowed by the award, would be an admission of the correctness of the judgment appealed from,, and would at once do away ■with the appeal. Hence we conclude that the only right conferred by the section of the statute relied upon, is the power of the company to join as defendants in one suit separate land owners, who could not otherwise be joined in one action, and that by such legislation the lawgiver did not, as he could not, attempt to regulate the jurisdiction of this or any other court whose jurisdiction is defined by the Constitution.

Plaintiff further' contends that several awards amount separately to more than one thousand dollars each, but fails to point out which, if any, case comes under this category.

He, doubtless, refers to the award in favor of the heirs of Olivier Boudreaux, which was for $2200, and to Hopkins, to whom the judgment allows $681, in the expropriation proceedings, and $1000 in the suit for injunction and damages, which he had instituted against plaintiff, and which by consent of parties was consolidated with the application for expropriation.

The record shows that the heirs of Olivier Boudreaux, ten in number, were sued separately and Ly name, each for his individual share; and from an act of partition offered in evidence by plaintiff, it appears that, as far back as April, 1878, these heirs had divided among themselves, in kind and by lots, the very lands in question. Each heir is, therefore, •entitled, in his own separate right, to one-tenth of the award of $2200, and that share is the amount which is in dispute as to each of said heirs.

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.

Considering, therefore, that our jurisdiction in this case must be tested by the amount involved as to each land owner, and in each distinct suit, and that none of the parties has in any one suit an interest in an amount exceeding one thousand dollars, we conclude that we have •no jurisdiction. Morgan’s La. & Texas R. R. vs. Bourdier & Bellesein, 32 An., not reported; 30 An. 609; 29 An. 108; 28 An. 172; 18 An. 136.

It is, therefore, ordered that this appeal be dismissed at appellant’s costs.

Justice Todd takes no part in this decision, being related to one of the parties.


text:
    No. 8277.
    O. A. Pierce, D. A. Kenyon, Assignee, vs. W. L. Cushing et al.
    On Motion to Dismiss.
    When an appeal is dismissed on motion of the Appellee, on the ground that the Transcript was not filed within the legal delay, though the appellee did not himself bring up the record for the purpose of dismissal under Articles 588-590, C. P., the Appellant shall be considered as having abandoned his appeal and shall not be permitted afterwards to renew it.
    APPEAL from the Sixth District Court for the parish of Orleans. Rightor, J.

      R. T. Posey for Appellee:
    First — "When the appellant has not filed the record within the time fixed in the order of appeal; nor within the three days of grace; nor within the further time allowed him by the Supreme Court — the appellee has a right to presume the appeal has been abandoned; and has the right also to demand its dismissal and rejection, and to conclude the appellant from a renewal of the appeal, if it appear from the transcript that citation of appellee was served on appellee. C. P. 590, 594; Bell vs. Williams, 3 L. 251; Pond vs. Horton, 7 B. 177 ; Copley vs. Routh, 3 An. 189; R. R. Co. vs. Hood, 3 An. 226 ; Dwight vs. McMillen, 4 An. 350; Palfrey vs. Winter, 8 L. 206; Dozer vs. Sargent, 4 L. 41; Ducournau vs. Levistones, 4 An; 30; Succession of Logan, 4 An. 279; Brickel vs. Connor, 10 An. 235; Redman vs. Mann, 24 An. 189; Martee vs. Edwards, 20 An. 236.
    Second — It is sufficient if the transcript is before the court when the motion to dismiss is heard. It is the requisite proof of tlie abandonment meant by Art. 594 C. P., and is of no consequence whether it is brought up by the appellee or appellant or the clerk. Barbaria vs. Armstrong, 2 L. 209; Palfrey vs. Winter, 8 L. 206; R. R. Co. vs. Hood, 3 An. 227.
    Third — In cases contemplated by Arts. 590 and 594 of the Code of Practice, where a dismissal of the appeal is demanded, the appellee makes the motion — and the qualifying statement of the court in Roberts vs. Benton, 1 R. 100, cannot apply to such cases. C. P. 590, 594; Redman vs. Mann, 24 An. 189.
    Fourth — Appellee’s right to dismiss the appeal in such cases is not affected by the act oi appellant in filing the transcript after his order of appeal has lapsed by his neglect. His right to file his transcript had expired, and he is without position to claim a waiver by appellee, who demands the rejection of the appeal. Palfrey vs. Winter, 8 L. 206; R. R. Co. vs. Hood, 3 An. 226; D. Redmond vs. B. L. Mann et al., 23 An. 373.
    Fifth — An order of extension is inefiectual to revive the right of appeal, lost by mere delay. 23 An. 373.
    Sixth — When a former appeal has been dismissed on motion of appellee, on the ground that the appellant had failed to file Ms transcriptbeforehis order of appeal had lapsed, andhad proved by the transcript that he had been cited, and the appeal had lapsed — appellant is concluded, and oannot renew the appeal. Should he obtain a new order, and briDg up the transcript, such new appeal must he dismissed. C. P. 590, 595, and authorities under Ho. 1

      R. H. Marr for Appellant:
    First — The actual abandonmentof a suit, inthesense of R. C. C. Art. 3519, must he voluntary, intentiona, 13 La. 28211 Rob. 259; 7 An. 523 ; 8 An. 469 ; 10 An. 331; 24 How. 569 ; and, by analogy, the actual abandonment of an appeal must he voluntary and intentional.
    Second — The appellee may oause the appeal to be considered in law as abandoned, so that it oannot be renewed, by proceeding in strict accordance with the requirements of C. P. 589, 590, 594, and not otherwise. O’Donald vs. Lobdell, 2 La. 300; 1 An. 417; 2 An. 390 ; 4 An. 534.
    Third — The filing of the record by the appellant after the expiration of the legal delay, is an irregularity which may be waived by the appellee. O’Donald vs. Loddell, 2 La. 300.
    Pourth — The failure to prosecute, or the abandonment of a first appeal, does not, ipso factot preclude the right to a second appeal. 4 La. 318; 1 Rob. 71; 4 Rob. 259; 2 An. 485.
    Pifth — The report in Dozer vs. Sargent, is defective and misleading, in that it does not shovrr as the truth is, that before the second appeal was demanded, the appellee had obtained the certificate of the clerk, and had filed it in the lower court. 4 La. 41; Record, No. 1757.
    Sixth — Where the first appeal is dismissed, on motion of appellee, the appeal may be renewed at any time within the term prescribed by law. 11 La. 382; 1 Rob. 100; 15 An. 116; 2? An. 762; Barthe vs. Camors, No. 8108, decided 4th April, 1881, not reported.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Levy, J.

The appellee moves to dismiss this appeal on the ground that a former appeal has been taken in this case and abandoned by the appellant.

It appears that, in July, 1880, on petition therefor, a devolutive appeal was granted to, and taken by, these appellants from the judgment signed on 20th April, 1880; that appeal No. 8064 was dismissed by this Court on the 4th of April, 1880, and on the 9th of April, 1881, within one year from the signing of the judgment, on another petition, the present appeal was taken.

The ground urged for the dismissal of the first appeal was, that the transcript had not been filed within the delay granted, and the Court sustained the motion to dismiss.

In the present motion, appellee urges “that said appeal No. 8064, having been dismissed on the grounds aforesaid (failure to file transcript within time), the appellants have no right in law to renew this appeal, as they are now attempting to do, but under Articles 590 and 594 of the Code of Practice, the first appeal was abandoned and appellants cannot renew the same and the judgment of the court a qua has become irrevocable.”

Art. 594, C. P., is as follows: “ Prom the moment when the citation of appeal is served on the appellee, the appellant cannot withdraw his appeal; and whether the appellee obtain the rejection of the appeal by producing the record from the court below, or prosecute execution on the judgment appealed from, on the certificate of the clerk that the record has not been brought up by the appellant, the appeal shall be considered as abandoned and the appellant shall not be afterwards allowed to renew it.”

Art. 590, C. P.: “ If the appellee prefers to have judgment on the appeal, he may obtain copy of the record from the lower court and bring it up to the appellate court, and may pray for judgment, or for the dismissal of the appeal, in the same manner as if the record had been brought up by the appellant.”

The question for decision is: Was the dismissal of the appeal in No. 8064, for the reasons stated, such “ obtaining the rejection thereof” as to operate an abandonment of said appeal ?

Appellant holds, that as the actual abandonment of a suit must be voluntary, intentional, so, by analogy, the actual abandonment of an appeal must be voluntary and intentional; that, to cause an appeal to be considered in law as abandoned, so that it cannot be renewed, the appellee must proceed in strict accordance with the requirements of the Code of Practice on this subject, and not otherwise; that the filing of the record by the appellant after the expiration of the legal delay, is an irregularity which may be waived by the appellee; that the failure to prosecute, or the abandonment of a first appeal, does not, ipso facto, preclude the right to a second appeal, and that, where the first appeal is dismissed, on motion of appellee, the appeal may be renewed at any time within the term prescribed by law.

Appellee contends, that although the record was not brought up or filed by him, yet by reason of his motion to dismiss, it was before the court, at the time and for the purpose it was used, and it may, therefore, be said, he produced it, and relies in support of this proposition on the case of Palfrey vs. Winter, 8 L. 205, where the Court held: " It is true, the Code requires that the appellee who wishes to move for a dismissal of the appeal, in such cases, should bring up the transcript. In this case the transcript is already before us. The appellee was cited to appear in this Court on the third Monday of January, and the record was not brought here until the commencement of the succeeding term without any application to the Court for further time, or any cause shown; and we are of opinion that the appellee is not bound to answer.” And in N. O. and Carrollton R. R. Co. vs. Hood, 3 An. 226: “ The appellant has three judicial days after the return day within which to file the transcript. If he permit the delay to expire without filing it or obtaining further time for bringing it up, the appellee may himself bring up the record and insist, of right, on the dismissal of the appeal or he may claim the dismissal if the transcript be filed by the appellant, without permission, after the expiration of the delay.” C. P. 588, 590. In 4 An. 30, it was held: “ The Code of Practice is positive that, if the appellant does not file the transcript seasonably, the appeal shall be considered as abandoned, and the appellant shall not be afterwards allowed to renew it.” C. P. 594. See, also, 20 An. 236; 22 An. 200, in which latter case it is said: “ After the lapse of the time at which the first devolutive appeal was made returnable and the extension granted by this Court, there was evidently an abandonment of the appeal and the plaintiff, if alive, could not legally get a second order of devolutive appeal and give a second appeal bond in the court below.” 24 -An. 149.

These authorities and the reasoning of the Oourt in support of them lead us to the conclusion that this case falls within the meaning and operation of Art. 594 of the Oode of Practice, and sustain the grounds on which appellee bases his motion.

The appeal herein is dismissed with costs.

Rehearing refused.


author: Bermudez, C. J.

text:
    No. 6757.
    R. W. Rayne & Co. vs. Richard Terrell.
    The certificate of the Recorder of mortgages stating that an act of partnership in commendarn was registered in the mortgage office, in a certain book, of which the number and folio are given, there arises a legal presumption that the registry was made in the manner prescribed by law, especially when no attempt has been made to disprove the truth and correctness of said certificate.
    A partner in commendam may have with the firm with which he is thus connected, all the business transactions which a stranger could have, without thereby taking part in the affairs of said firm and rendering himself liable for its debts.
    Oral evidence is inadmissible to prove the promise of a person to furnish his signature on negotiable paper to another party, when the purpose of the evidence is to show that such person is liable for the debts of said other party by virtue of the promise.
    APPEAL from the Sixth District Court for the parish of Orleans. Bightor, J.

      Singleton & Browne, for Plaintiffs and Appellants:
    We have shown:
    First — That the defendant is* liable as a general partner, because the act of commendam partnerthip was not recorded in the manner prescribed by law, and that the certificate of recordation is totally defective. R. C. O. 2845, 5838, 2848, 2847; 2 M. 345; 5 M. 193 ¡ 10 M. 59 ¡ 1 N. S. 522; 1 Rob. 1; 3 Rob. 33; 13 La. 345; 14 La. 246; 17 La. 587.
    Second — We have shown that defendant is liable as a general partner because he took part in the business of the partnership. R. C. C. 2901, 5809.
    Third — We have shown that the defendant ought to bear the loss of the sum sued for, and not the plaintiffs, upon that equitable principle which holds — " That when one of two innocent parties must suffer, he shall suffer who by his own acts occasioned the confidence and the loss.” 5 Rob. 524; 6 An. 7 ; 13 Com. Law Reports, 253; 37 id. 54; 15 East. 42.

      T. Gilmore & Sons, for Defendant and Appellee:
    First — The allegations of thepetition are inconsistent and contradictory, and plaintiffs should have been required to elect which of them they would pursue. C. P., Art. 152.
    Second — The articles of partnership must be held to have been properly recorded in the absence of proof to the contrary. Elman & Co. vs. Briggs, Payne & Co. et al., 32 An. 657.
    Third — A partner in commendam does not make himself liable as a general partner by endors* ing the note of tlie partnership, nor by lending his name as maker of a promissory note. TJlman ys. Briggs, Payne & Co. and Lewis, 32 An. 657; Rep. ¿Tour, du Palais, vol. 11, p. 876, No. 1083; Delangle, Socióté Commerciale, Nos. 382-3; Troplong, Contrat de Société, No. 434, and other authorities.
    Pourth — The general partner cannot by his (unauthorized) promise bind the partners in commendam individually as surety or guarantor of the debts of the partnership. Act No. 208 of 1858, § 3, p. 148.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiffs seek to hold the defendant liable for a balance of account, either as the commercial partner of J. R. Boarman or as warrantor.

After filing exceptions which were in part overruled and in part referred to the merits, the defendant denied all liability, setting up a special defense.

From,a judgment against them, the plaintiffs have appealed.

We deem it unnecessary to review the rulings of the lower court on the exceptions, the more so as the defendant does not insist upon a reyision.

On the merits, the plaintiffs made a prima facie case against J. B. Boarman, who is not a party to this suit.

Terrell contends that he never was an ordinary partner of Boarman; that he associated himself with him as a partner in commendam by a public act in 1871, for three years, which was duly recorded; that, at the expiration of that term, the partnership was continued for one year, and that the authentic act of extension was likewise put of record; and he annexes to his answer copies of the acts, with certificates of registry. Terrell further denies that he ever was in any other way interested in the business of Boarman.

The acts and certificates were offered in evidence. Plaintiffs contend that the defendant has not proved them to have been .properly registered. They claim that the certificates do not show that the recorder of mortgages kept a separate book in which to record partnerships in commendam and that the acts were properly recorded in that book.

The first certificate is to the effect that the act of 1871 was duty recorded in B. 117, fol. 598, of the mortgage office for this city and parish. The second certificate is simply: “ Recorded in mortgage office New Orleans, 23d, 1874, in Book No. 118, fols. 517 and 518.”

We must confess that these certificates are as meagre as they can possibly be; that they might, with great propriety, have been made more explicit; but, considering that there is attached to them a legal presumption of regularity, which does not appear to have been at all impugned in the lower court where they were put on file with the answer, so as to afford the plaintiffs ample opportunity to verify the correctness and 1he validity of the registry; and considering that, in this court where they were first attacked, it was not alleged, even orally in the argument, that they were false and destitute of legal worth, we do not feel authorized to declare that they are insufficient, and will deem them as having substantially issued in compliance with the requirements of the law.

We cannot imagine that the plaintiffs did -not make a verification, and cannot believe that, if they had found that the acts had not been properly recorded in the separate book which the law requires should be kept for the recording of partnerships in commendam, they would not have produced crushing evidence of improper registry. '

The most that we could have done in furtherance of the ends of justice would have been to remand the case to enable the plaintiff to produce conclusive evidence of irregular registry; but we have not been asked to do so. 32 An. 661; 21 An. 361.

The acts appear, on their faces, to be in the form and to have the substance which the law requires, in that class of cases, to protect effectually partners in commendam from the general liability of ordinary commercial partners.

We do not understand that the plaintiffs find fault with them in that respect.

The next objection is: that, however complete the registry and evidence thereof may be, Terrell is again responsible, because he has taken an activepart in the business of the partnership.

The evidence does not show that he has done any act from which strangers could be authorized to infer that he considered and represented himself an ordinary partner, liable solidarily for the debts of the concern. 'The very acts which are charged upon him as acts which make him liable for having taken a part in the business of the partnership, show that it is because he was not looked upon as such partner, but otherwise, that his personal obligations were at times required by the plaintiffs, as conditions for their dealings with Boarman.

If Terrell had been an ordinary partner, or, if originally a partner in commendam, he had forfeited the protection accorded him by law, and had thus become liable in solido with Boarman, why should the plaintiffs have insisted .upon his making himself liable by notes drawn or endorsed by him to secure their transactions with Boarman ? His liability as a general partner could not be magnified by the superaddition of his personal and individual responsibility as maker, or endorser, or security. But it is charged that he lent his name or signature, his credit and money, to the firm in which he claims to have been no more than a partner in commendam.

Such acts would not commit him to the liability sought to be saddled upon him.

From the fact that the partner in commendam is not allowed to participate in the affairs o£ the concern, it is not to be inferred that he must remain an idle by-stander and looker-on; and that any intervention on his part, whatever it may be, would be violative of law.

Partners in commendam are not forbidden from operating with the partnership, by selling to it, by buying from it, by lending money to it. Those different negotiations cannot be considered as acts of immixtion involving general liability.

When the partner in commendam deals with the concern his condition does not differ from that of a stranger. The principles of the French law are consonant with our own textual provisions on the subject now under consideration.

Troplong Société, No. 434; Pardessus Droit, Com. 4, No. 1050; Dedarride Société 1, No. 254 (3); Repertoire Journal du Palais, vol. 11, p. 876, No. 1083; Dalloz J. G. Yo. Société, No. 194.

It is only where a partner in commendam holds himself out as a partner, by actively conducting the business, or introduces his name in the partnership style, or declares his connections as a general partner, or acts in a manner in which a partner only could act, and third persons are justified to infer and do infer that he is a general partner and act upon that well-founded inference, that he can be held responsible to them, notwithstanding the validity of the form of the act of partnership in commendam, and the regular registry thereof in the proper office and in the proper book. The penalty inflicted is limited to such cases, and cannot be extended to others not mentioned. R. C. C. 2849; 21 An. 361; 32 An. 658.

The last ground on which Terrell is charged with responsibility is, that he had agreed to furnish paper on which he was to serve either as drawer or as endorser, to secure the obligations of Boarman, and that Boarman had made agreements to that effect with Terrell.

On the trial the plaintiffs sought to establish those facts by oral testimony, but, upon objection of the defendant, that the evidence required by law to prove that a party bound himself to assume and pay the debt of another must, be in writing, the Court refused to allow witnesses to be heard to the end proposed, and the plaintiffs excepted.

Either Terrell was or he was not an ordinary general partner. If he was, the testimony was irrelevant; if he was not, it was clearly illegal, as it tended to prove an assumption by him of the debts of the concern. ' The evidence was properly excluded. R. C. C. 2278; 23 An. 747; 24 An. 401; 26 An. 221; 30 An. 1290.

We think that the evidence and the law are with the defendant, and that the judgment complained of was correctly rendered.

It is, therefore, affirmed with costs.

Rehearing refused.


author: Fenner, J.

text:
    No. 7901.
    Carter, Congreve et al. vs. City of New Orleans et al.
    The assessment and judgmentfor taxes against a Succession, as such, are legal, when the heirs have not obtained and recorded a decree of court recognizing and putting them in possession. Affirming Decision in City vs. Stewart, 28 An. 180.
    APPEAL from the Third District Court for the parish of Orleans. Monroe, J.

      B. B. Borman for Plaintiffs and Appellants:
    First-Judgments against a dead man are void. Edwards vs. Whited, 29 An. 647; Surgi vs. Colmer, 22 An. 23 ; Garard vs. Reed, 5 R. 508.
    Second — Judgment against a living man cannot he executed by fi. fa. after his death. Hall & Lisle vs. Bolden, 29 An. 118.
    Third — Either a judgment or assessment in a name other than that of the owners, is void and does not bind them, and cannot be executed against them. City vs. St. Romes, 28 An. 17 j City vs. Schmidt, 10 An. 771 ; Fischel vs. Mercier, 32 An. 705; Lague vs. Boagni, 32 An. 912; Gindry vs. Broussard, 32 An. 924; Thibodeaux vs. Keller, 29 An. 508; Stafford vs. Twitcbell, 33 An., not reported.
    Fourth — Heirs need not be recognized by judgment of probate court to maintain an action to protect inherited property. Le Page vs. New Orleans Gas Light Co., 7 R. 183; Tugwell vs. Tugwell, 35 An. 823; Carter, Congreve et al. vs. Fowler, 32 An., not reported.

      J. Ward Gurley, Jr., Assistant City Attorney, for Defendants and Appellees:
    Plaintiffs having had full knowledge of the assessments complained of, and having, through their counsel, applied for and, in some instances, obtained reductions, in the name orstyle in which the assessments were made, they are bound by said assessments, although not made in their individual Dames.
    The assessment and judicial collection of the city taxes complained of were governed by Acts Ho. 7, Extra Session 1870, and Ho. 73, of 1872, and not by the Acts of 1856,1858 and 1859, cited by plaintiffs.
    If the sheriff’s advertisement identifies the property, the description is sufficient.’
   The opinion of the Court was delivered by

Fenner, J.

This is an action by plaintiffs, as heirs of N. R. Jennings, to annul certain judgments in favor.of the City of New Orleans for taxes upon property inherited by them from their deceased ancestor, and to enjoin execution of said judgments and for other cognate relief, not necessary to be mole particularly specified here.

The objections are that, after the death of N. R. Jennings, the assessments of the property for numerous years were variously made in the name of “N. R. Jennings,” of “Est. of N. R. Jennings” and of “Est. of Mrs. R. Jennings;” that the publications, provided by law as the equivalent of citations, were in the same names, and that judgments were likewise rendered in those names. The judgment of the lower court decreed the nullity of all the judgments, except those rendered against the “Est. of N. R. Jennings,” and perpetuated the injunction against further proceedings on said annulled judgments, reserving the city’s right, by proper proceedings, to assess and collect taxes on the property for the years for which the prior taxes were annulled.

Erom this judgment plaintiffs have appealed, and the city has filed answer praying for an amendment of the judgment so as to reject entirely the demand of plaintiffs.

The judgment is unquestionably correct in maintaining the assessments and judgments against the “ Estate of N. R. „ ennings.”

The heirs had never obtained or recorded any decree of court recognizing and putting them in possession as heirs of N. R. Jennings. He was a resident of the parish of St. Helena at the time of his death, and his succession was opened there.

There was nothing to inform the assessors that the ownership had passed to the heirs by absolute title. In State vs. Brown, 32 An. 1020, we maintained an indictment laying ownership in a succession, and we there said:

“Pending the acceptance or rejection by the heir, which, when made, retroacts to the instant of death, and pending the administration, all ‘the estates, rights and charges ‘which a person leaves after his death,’ are vested in, and belong to, the abstraction called ‘ succession/ as expressly stated in Articles 872 and 873 of the Oivil Code.”

Assessment and judgment in name of “Estate of Samuel Stewart,” were expressly upheld, in the case of City vs. Stewart, 28 An. 180, and no decision has ever been rendered conflicting therewith, either in fact or in principle. The cases of City vs. Heirs of Schmidt, 10 An. 771, and City vs. Heirs of St. Romes, 28 An. 17, are expressly based upon the indefiniteness of the descriptio personae, resulting from the omission of the Christian names or initials. The decision in Stafford vs. Twitchell, 33 An. 520, far from overruling the Stewart case, as claimed by plaintiffs counsel, is expressly founded on the fact that the assessment there annulled was made in the name of the deceased instead of in that of his estate or succession.

The judicial proceedings authorized for the enforcement of city taxes, are not to be subjected to the strict rules governing such proceedings ordinarily. They are the sequences of the assessment proceedings, upon the validity of which their own validity depends. When the assessment made, with a certain description and in a certain name, is valid either of itself or by reason of confirmatory action of the owner, publication and judgment in the same name and with the same description will be upheld if otherwise regular. Lane vs. March, 33 An. 554.

The assessments and subsequent proceedings in the names of “N. R. Jennings” and of “Est. of Mrs. R. Jennings,” the latter a name of no existing person, but evidently substituted by clerical error for that of N. R. Jennings, are null under the doctrine of Stafford vs. Twitchell and other cases there cited.

We have felt grave doubt as to whether those in name of “ Est. of Mrs. R. Jennings,” should not be saved from nullity by the proceedings taken by the present attorney of the plaintiffs in connexion with the assessments.

While the rolls were open, he filed sworn applications for the reduction of the assessments, signed “Est. Mrs. R. Jennings, per B. R. Forman.” If it were clearly proved that, in making these applications, he acted by direct authority of the owneys, we should regard them as operating a clear ratification of the assessment in that name, which would have estopped them from opposing the assessment or any of the subsequeht proceedings based thereon. It would have been equivalent to a direct return of the property by the owners for assessment in that name, and would have fallen within the doctrine of Lane vs. March, 33 An. 554. The evidence of his authority, however, is not sufficiently clear to justify us in disturbing the judgment of the lower court.

We find nothing requiring notice in any of the other points of plaintiffs. We are satisfied that the j udgment appealed from has done liberal justice to plaintiffs.

Judgment affirmed at appellants’ costs.

Rehearing refused.


text:
    No. 7399.
    M. U. Payne vs. P. H. Kemp et als.
    The husband may make a transfer of his property to his wife, in payment of her legal claim against him, whether she has a mortgage or not; and his insolvency is no obstacle to such settlement, as the law contemplates his very financial embarrassment as the reason of the transfer, which is, therefore, not subject to the rules of the Revocatory action. Decision in Levi, Executrix, vs. Morgan etah, 33 An. 532, affirmed.
    The right that the wife had against her husband for such transfer, her heirs have after her death, and the dation en paiement or transfer can equally be made to them; but the debt which it is proposed to satisfy, must be a real and legal one, properly evidenced. Theiefore, the dation en paiement made by the father to his children in payment of their rights, as heirs of their mother, in the Community, will be set aside in favor of creditors of that Community, if the same has not been liquidated.
    i PPEAL from the Sixth Judicial District Court, parish of St. Helena. XX Duncan, J.

      Breaux & Kail for Plaintiff and Appellant:
    Eirst — A giving in payment made by a transferror who i3 insolvent and to transferree aware of the fact, is null and void. C. C. 1982,1983; De Greek & Co. vs. Murphy & Gaines, 26 An. 297.

      Second — To charge a community with the price of slaves, sai'd to have been inherited by the wife, such slaves must first be identified as her inheritance. 2d. The sale must be shown to have been of the identical slaves by the husband.
    Third — Inventories make no proof of the interest of heirs, partitions only, or accounts duly homologated, and settlement with the heirs prove the quantum of such interest; and to charge the community the interest, must be traced to the hands of the husband.
    fourth — Heirs have nothing to claim from, the community until it is settled. Phelan vs. Ax, 25 An. 330.

      J. H. Muse and Jos. A. Reicl for Defendants and Appellees:
    IPirst — “ Ho creditor can, by the action given by this section (revocatory action), sue individually to annul any contract made beiore the time his debt accrued.” R. C. C. Art. 1993.
    Second — The funds receivod by a husband as the inheritance of his wife from her parents, constitute a trust fund not to be identified with his own, by himself or his creditors.
    Third — A dation enpaiemmt by a father and natural tutor to his children of one-half the community property in satisfaction of his liabilities to them, no community debts existing, is an effectual partition and settlement between the father and the heirs of his deceased wife of the community.
    JFourth — The proposition that the inheritance of minors derived from their grand parentB through their mother, and from her succession after her death, may be absorbed in payment of debts created by the father, and natural tutor of his minor children, after the death of their mother, and the dissolution of the community is repugnant to the laws nnd jurisprudence of Louisiana.
   The opinion of the Court was delivered by

Levy, J.

Plaintiff, as the holder and owner of a note executed by ■the defendant Kemp, for the sum of $2035 15, dated December áth, 1872, payable twelve months after date to Payne, Dameron & Co., with eight per cent, interest from maturity, endorsed by payees, and held by plaintiff for valuable consideration, before maturity, brought this suit' to recover judgment therefor against said maker, and to have set aside a dation en paiement or transfer of the said P. H. Kemp to his children, made on the 23d of March, 187á, by an act under private signature, and to have the property, thus given in payment and transferred, subjected to the payment of the debts of said P. H. Kemp, and ordered to be sold to pay plaintiff’s debt, as above mentioned. In his petition, plaintiff alleges that the said act is “ null and void and designed as' a fraudulent contrivance to divert the property of said P. H. Kemp from the payment of his debts and without reserving means for the payment of petitioner and his other creditors, and him entirely insolvent.” He ■avers “that said transfer was without consideration; that he was not indebted to his children in any amount; that he was entitled to the ■usufruct of all community property which entered into the estimate made in said transfer, which he abandoned to his said children as a •donation; that the price fixed for said property is fictitious, and fixed far below its real value, by collusion, without any design to make a sale; that the pretended sale of the homestead tract of land is void for uncertainty, and that the consummation of said transaction would be a great injury to the rights of petitioner.”

Defendants filed exceptions to the action and prayed for its dismissal on the grounds: 1st. “ That the note sued on has never been presented for payment at the place designated in said note. ' 2nd. That the note described in the petition does not correspond with the note annexed thereto. 3rd. That there is no allegation of any indebtedness of defendant, P. H. Kemp, to any other person, saving only plaintiff, and that there is not even a prima facie showing of fraud on the part of defendants.” These exceptions were overruled.

Defendants, in their answer, admitted the dation en paiement, and averred that the same was a just, legal settlement of the matters and things embraced therein. P. H. Kemp denied that he was indebted to-plaintiff in the amount of the note; alleged that he had offsets and compensable demands against the note, and claimed $1000 damages in reeonvention. The case was tried by a jury, and there was a verdict in favor of the plaintiff, with judgment against the defendant, P. H. Kemp, for the amount of the face of the note sued on, and sustaining the sale. The judgment is as follows: “It is, therefore, ordered, adjudged and decreed that said plaintiff do have and recover of said defendant (P. H. Kemp) the sum of $2035 15, the amount of the face of the note sued on, and the law and the evidence and the verdict of the jury being in favor of the defendants (naming them) and against the plaintiff, M. U. Payne, it is, therefore, ordered, adjudged and decreed that the said defendants do have and recover judgment against said plaintiff sustaining the act of dation en paiement made by P. H. Kemp to his children and co-defendants.” The plaintiff has appealed. The judgment against the defendant, P. H. Kemp, is only for the face of the note. We cannot perceive any reason which should confine the plaintiff to the recovery of the mere face of the note. No valid or reasonable defense has been made to the claim on the note, and the judgment, therefore, should carry with it interest at eight per cent, per annum from its maturity, December 14th, 1873, as stipulated in its body.

The evidence in the record discloses that P. H. Kemp received, by virtue of partitions made among the heirs of the successions of A. Womack and Celia Womack, the father and mother of his wife, Parmelia Kemp, deceased, the portions therein in cash, slaves and personal property, to which his said wife was entitled, for which he was accountable to his children, issue of his marriage with said Parmelia, his wife. In order to settle this indebtedness, P. H. Kemp, on an appraisement agreed upon by himself and children, made a dation en paiement of all his property, with the exception of a tract of land retained by him as a homestead, and which was not liable to seizure, for the purpose of liquidating pro tanto his acknowledged indebtedness to his children. The amount of this indebtedness was declared by him and them to be on account of amounts from successions of their grandfather and grandmother, A. Womack and wife, $6196 94, and the interest of the children in the succession of their mother, Parmelia Kemp, $4426 80, making in all $10,623 74; and the aggregate amount of the property given in payment is in the act estimated as of the value of $9259.

Nothing in the evidence goes to show, an undervaluation of the property transferred to the children in the act of dation en paiement. It does not appear, nor is it contended by defendants, that any mortgage existed upon the property of the husband, securing the indebtedness to the wife. No registry of the wife’s claims seems to have been made.

In the case of Levi, Executor, vs. Morgan et al., recently decided by us and not yet reported, we held: “If a real indebtedness existed in favor of the wife, whether it imported a mortgage or not on the immovables of the husband, the latter could discharge such indebtedness by a dation en paiement to the wife, if there was no other obstacle opposed thereto but a superior mortgage or privilege thereon in favor of another creditor of the husband, but such transfer would be made subject to such superior right or claim on the part of this creditor.” .

And, “lastly, the plaintiff’s counsel contends that the sale or transfer should be set aside, because Morgan, the husband, was insolvent when he made it, and that it was a clear case of a preference of one •creditor over another. This proposition would have great weight were the legal question involved in it a new one; but it has been fully settled by frequent adjudications of this Court, that transfers of the husband to tbe'wife, in satisfaction of her paraphernal claims, are not subject to ■the same rule that applies, ordinarily, to the revocatory action and the right to such action. Thus, in the case of Judice vs.Neda, 8 An. 485, the Court said: ‘The wife, before she obtains a separation of property, is bound to allege and prove the embarrassment of her husband and to .justify her belief that his property may not be sufficient to meet her rights and claims. So that the husband must generally be in failing circumstances before a separation of property can be obtained, and yet article 2421 expressly authorizes transfers by the husband to the wife in satisfaction of these judgments. There are no distinctions made between transfers made after a judgment of separation and those which .are made without such judgment.’ An-l in 30 An. 745: ‘Neither the pecuniary embarrassment nor the actual insolvency of the husband, is any obstacle to a transfer by the husband to the wife in good faith, for the replacing of her money or property alienated by him.’ ” The principle, thus enunciated as applicable to the rights of the wife, must be-applied to her heirs, who can enforce those derived from their ancestor.

But while the right to make such transfer exists, its effect must be-confined within proper limits. The debt which it is proposed to satisfy to the extent of the property given, must be a real and legal one. The bare assertion of its existence will not suffice to maintain it, unsupported by proof of its validity. To the extent of such validity the-transfer will alone be maintained. Here there enters into the consideration the price of a slave ($800) sold by Kemp, which is treated as a portion of the paraphernal property of the wife disposed of by the husband. There is a total absence of any proof showing that this was-the wife’s property, and, therefore, the sum of $800 should be deducted from the sum of $6196 94, alleged to have been received by P. H. Kemp in his wife’s share in the successions of A. Womack and wife, reducing-the indebtedness on that score to $5396 94. The sum of $4426 80, the alleged interest of the. children, heirs of Parmelia Kemp, in the community, was not a liquidated indebtedness, which should bind the plaintiff creditor. There does not appear to have been a settlement of the community, and no legal ascertainment has been had of the interest of the heirs in such community. If there were no persons concerned but the father and children, the convention between them would doubtless be binding, but as there are other persons in interest, and creditors, of the community itself, this summary mode of disposing of the assets cannot be maintained. The debt in favor of the plaintiff was contracted during the marriage; there was no separation of property or dissolution of the community, and the community was, frcm the record, clearly liable for plaintiff’s claim, and its assets should not thus arbitrarily be diverted. The condition of the succession at the death of the. wife-must be considered, and, whatever might have been her claims against her husband on account of her separate property, it is plain that the community debts affected the community and were to be discharged thereby.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court, in so far as it gives judgment in favor of the plaintiff and against the defendant P. H. K' mp, for the face of the note sued on only, be amended so as to allow interest on the amount of said note of two thousand and thirty-five dollars and fifteen cents, from the 14th of December, 1873, until paid, at the rate of eight per centum per annum;- and that the judgment sustaining the -act of dation en palemeni made by P. H. Kemp to his children and co-defendants, be amended by decreeing, and it is hereby decreed, that the same be sustained only to the-extent of the sum of five thousand three hundred and ninety-six dollars and ninety-four cents, that being the amount of the indebtedness of the said P. H. Kemp to his co-defendants, for which they are entitled to share in the property conveyed to them, and that said property be subjected to the payment of the judgment in favor of plaintiff herein, and to share in the proceeds of the sale of said property in the proportion which said judgment bears thereto. Appellees to pay the costs of both courts.

Mr. Justice Fenner recuses himself in this ease, having been of counsel.


author: Bermudez, C. J. Levy, J.

text:
    No. 7635.
    Southern Mutual Insurance Company vs. Mrs. Mary A. Pike et al.
    An issue about the legal stains of one of the parties, which requires the introduction of evidence to prove the facts alleged, cannot he raised in this Court. '
    Unless the sheriff, in offering property for sale at public auction, announces, after reading the mortgage certificate, that the purchaser shall have the right to retain the amount of the anterior mortgages and piivheges, there can he no valid adjudication.
    But the nullity is susceptible oi ratification.
    APPEAL from the Fifth District Court for the parish of Orleans. Rogers, J.

      8. P. Greves and Merrick, Race & Foster, and Geo. L. Bright and Barrow & Pope, for Plaintiff and Appellee.

      Herron & Bird and Richardson & Magruder for Defendants and Appellants.

      Chas. 8. Rice for-Thos. W. Bothick, Appellant.
   On Motion to Rescind.

The opinion of the Court was delivered by

Bermudez, C. J.

Upon a verified averment of the extinction of the corporation plaintiff and of the judicial appointment of a liquidator of its affairs, an order was obtained substituting him in these proceedings.

Dissatisfied with this order, the defendants have taken a rule to rescind it.

They set forth allegations, to support which it would be necessary to hear proof, which cannot be received here. 32 An. 663; 2 An. 430.

Besides, the appellants have no authority to assail collaterally the appointment of the liquidator, which must be held as validly made until shown to have been legally vacated. 15 An. 27; 23 An. 17; 24 An. 253.

The rule is denied.

On the Merits.

The plaintiffs substantially aver that -they obtained a judgment for over $180,000 against the widow and heirs of W. S. Pike; that they issued a fieri facias and caused to be seized, advertised and offered for sale by the sheriff of the parish of East Baton Rouge, property in the town of Baton Rouge belonging to the widow; that although plaintiffs were the highest and last bidders thereon for $13,334, which exceeded the two-thirds of the appraisement thereof, the sheriff has refused to adjudicate the same. The prayer is that the sheriff and Widow Pike show cause why he should not make title to plaintiff and pay over the rents of said property.

The defendants answer by a general denial, and aver that the amount offered was not sufficient to cover two anterior conventional mortgages, amounting to $45,522, granted by judicial authority in favor of the minor Gertrude D. Pike, of whom the Widow Pike is the tutrix.

The reply is that the first recorded mortgage for $34,375, in favor of the minor, was at the time reduced to $11,147 by decree of the proper probate court, and that the evidence of such reduction was in the hands of the parish recorder before the time of sale.

The case was tried and there was judgment for plaintiffs, from which the defendants appeal.

It is admitted “that a copy of the petition and of the judgment thereon of the probate court to have erased the mortgages existing on the property in question in favor of the minor, was served on the parish recorder prior to his granting the certificate read by the sheriff on the occasion.

The sheriff’s return shows that on the day of sale this officer read aloud the advertisement, the certificate of mortgage, and a statement of taxes due on the property; that he received a bid of $13,334, exceeding the two-thirds of the appraisement, but insufficient to satisfy the prior mortgages in favor of the minor for $34,375 and $11,147, and that he declared that there was no sale.

The certificate read shows the registry of the two acts of conventional mortgages, the former on the 28th May, 1877, the latter on the 30th October, 1878, and also of a judgment in favor of T. W. Bothick for $38,323, on January 10,1879, and of plaintiffs’ judgment on the 20th following.

'The judgment of erasure authorizes the recorder of mortgages for the parish of Orleans to cancel from his records all the inscriptions resulting from the tutorship and the adjudication of common property. It contains no express authority to the recorder of the parish of East Baton Rouge to act in a like manner.

Conceding, arguendo, all the propositions of fact and of law advanced on behalf of the plaintiffs, there exists an insuperable objection to the granting of the relief sought.

The return of the sheriff does not show, and there is no supplying evidence, that the sheriff, before he commenced the crying, gave notice that the property was sold subject to any mortgage with which burdened, and that he announced that the purchaser would be entitled to retain in his hands, out of the price of adjudication, the amount required to satisfy the special encumbrance or encumbrances affecting the property, with the condition that the purchaser shall pay in his hands, to the extent of the writ, whatever portion of the price for which the property shall be adjudicated which would exceed the amount of anterior encumbrances. This was a fatal omission.

It is immaterial whether the bid covered or not the two anterior apparent special mortgages. Assuming that there was but one prior encumbrance, that of $ 11,147, the plaintiffs could not still succeed, because the omission, on the part of the sheriff, of the announcement, which is imperiously required, is an unavoidable impediment to the sale. C. P. 683, 679, 678.

In McRae vs. Chapman, 10 R. 65, this Court held, that where the property is offered by the sheriff without an announcement of the anterior privileges,and mortgages and of the right of the purchaser to retain the amount thereof, there can be no sale; also, 9 L. 542, the Court said ; “He should have announced that the purchaser was entitled to retain in his hands, out of the price of adjudication, the amount required to satisfy the privileged debts and special mortgages the property was subject to, and should have taken a bond only for the surplus.” C. P. 678, 683, 684.

In Perry vs. Hollowry, 10 R. 107, the same doctrine was affirmed.

The nullity resulting from the sheriff’s omission to make the announcement is not absolute, but relative only. It is one susceptible of ratification. It is'established not so much for the benefit of prior mortgagees, who, if the sale were legal, might be driven to an hypothecary action, as it is in favor of subsequent mortgagees and of the owner himself, who have an interest in having the property to realize as high a price as possible by the granting of facilities to purchasers. 2 An. 617, 861; 9 An. 214. 218.

In this case neither the anterior nor the subsequent mortgagees have entered an appearance, but the owner strenuously contends against a divestiture of title.'. This is not a case of ratification..

The propery. was advertised for cash. Persons intending to buy were bound to know of the inscriptions and of the necessity of covering them to secure an adjudication. If the bid of the plaintiff be a correct test of the value of the property, it is easy to imagine that many may have abstained from attending the sale or bidding on the property. It is impossible to measure what prejudicial effect the continuance of the ■inscriptions may have produced in deterring bidders at the sale.

There is no doubt that if the sheriff had announced that the purchaser would have the right of retaining the $11,147, represented by the second admitted mortgage, this circumstance might have been an, inducement and have provoked competition and secured a higher bid.. Purchasers, as a rule, are strongly inclined to keep both the property and the money, and to postpone payment of the price as far as it can conveniently be done. The longer the terms the greater the inducement.

The plaintiffs have no reason to complain. They had the control of the writ and could have instructed and directed the sheriff and held him responsible in case of dereliction of duty. The plaintiffs might easily have obtained' a correction of the inscriptions in the recorder’s office, and should have done so, previous to the day of sale, to secure a valid expropriation of the defenfants’ property. Under the circumstances it can well be conceived why the recorder, after service of the judgment of erasure, abstained from making any cancellation, and why the sheiiff, in presence of two conventional mortgages in favor of a minor, ranking the seizing creditor, declined making any adjudication. Public officers clothed with' ministerial functions, should not be placed in the perilous and unpleasant position of exercising a judicial discrimination.

There is error in the finding of the lower court.

It is, therefore, ordered and decreed that the judgment appealed from be reversed and that there be judgment in favor of the defendants,, rejecting plaintiff’s demand, with costs in both courts.

On the Application for a Rehearing.

The opinion of the Court was delivered by

Levy, J.

Counsel for the appellee suggests in a petition filed herein, that this Court has erred in its reversal of the entire judgment rendered by the lower court, and has failed to recognize the right of the seizing creditor, under the execution, to the rents and revenues collected by the sheriff pending the seizure. We omitted to give this matter consideration, as the question was neither discussed nor brought to our attention in the brief or oral argument of counsel, and, therefore, proceed to-correct our decree, in this regard, so as to read as follows :

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed in so far as it made the sale absolute and decreed that J. W. Bates, sheriff of the parish of East Baton Rouge, do make to the plaintiff, the Southern Mutual Insurance Company of Baton Rouge, a title to the property described, in accordance with the bid of said plaintiff, for the sum of thirteen thousand three hundred and thirty-four dollars; and that in all other respects the judgment appealed from be affirmed.

And it is further ordered that this decree be without prejudice to-the appellant to apply for a rehearing on the matter of this affirmance of the judgment of the lower court as to the right of plaintiff and appellee to receive the rents and revenues of the property seized under the execution from the time of seizure, collected by said sheriff; appellees to pay the costs of this appeal.

Behearing refused.


text:
    No. 7753.
    R. T. Beauregard, Curator, etc., vs. Julia Ann Lampton.
    When the heirs of a deceased person have made proof of his death and of their heirship,, though ex parte, and have been recognized as heirs and sent into possession, the succession of the decedent has been opened and closed. And thereafter, any mortuaria, proceedings and decrees for the appointment of an administrator or curator, are null and void and of no legal effeot. Until the original mortuaria are rescinded and set aside, or re-opened, by proper action of the court in which they were instituted, they stand as a perpetual bar to the demand of creditors for a judicial administration of the estate of the deceased. The recourse of such creditors is a personal action against the heirs who have thus been put iu possession.
    APPEAL from the Second Judicial District Court, parish of Plaque-mines. Pardee, J.

      E. Howard Mo Caleb and Walter 8. Finney for Plaintiff and Appellee:
    First — A defendant who goes to trial without requiring a decision on her plea of res judicata waives it.
    Second— Ex parte orders rendered without any contestatio litis and without any evidence to suppoit them, do not constitute the authority of the tbiDg adjudged.
    Third — Marriage and heirship must be judicially established like other facts.
    Fourth — Probate courts have no jurisdiction to determine by ex parte orders questions of heirship.
    Fifth — An action for the recovery of an entire succession is considered as an immovable, and only prescribed by thirty years. To acquire the ownership of property belonging to a succession by the prescription of ten years, good faith and a just title are both essential on the part of the possessor.
    Sixth — Those who have obtained possession of a succession by false representations as to their status cannot be considered in good faith, nor can a title based upon an ex parte order of court, procured by fraud, be regarded as just.
    Seventh — When “the record of the proceedings and evidence” in a case tried and determined by a competent court of one of our sister States is offered and received without objection, it will be too late at a subsequent stage of the trial to object. Such proceedings culminating into a judgment settling the questions of status and legitimacy are admissible against one no party thereto, and must be respected by the courts of this State.
    Eighth — One claiming under a vendor and warrantor as heir, although not technically a party to a judgment against her alleged ancestor’s vendees, must be considered as a privy and hound thereby, unless she can show “ tnat she possessed proofs that would have occasioned the rejection of the demand and which have not been employed, because she was not summoned in time.”
    hTinth — The failure of a defendant to testify as to facts within her knowledge creates the presumption which ordinarily exists against a party who withholds explanatory evidence.

      A. Lartigue and M. JZ. Livaudais for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Edward Shipp Lampton died in the parish of Plaque-mines on May 30th, 1865. In July of the same year, his succession was regularly opened in the District Court for said parish (then vested with probate jurisdiction), upon due proof of his death; and a petition was filed by Elizabeth Tharp, representing herself as the widow of deceased, in which she alleged that she was legally married to deceased, that Julia Ann Lampton, then of age, was the only child of said marriage and sole heir of deceased; that he left property which belonged to the community of acquests and gains between herself and her deceased husband, and which, after his death, was held in common by her and the said child; that in order to ascertain their respective rights and with a view of being put in possession of the property, it was necessary that an inventory should be taken; and she prayed for and obtained an order for the taking of such inventory.

It was accordingly taken in due form and filed. Thereupon a joint petition of the widow and of Julia Ann Lampton was filed, in which they represented that, as surviving widow in pommunity and as sole heir respectively, they were desirous of accepting the succession with benefit of inventory, and desired to be put in full and definitive possession thereof, each for one undivided half, and rendering themselves liable for the charges and debts of the succession to the value of the property inventoried. Upon this petition the judge rendered and signed an order recognizing the said surviving widow and child as sole legal heirs, and, as such, putting them in possession of the property as prayed for.

They accordingly went into possession as undivided owners. Subsequently the mother died, and the daughter inherited her interest, and has remained in undisturbed possession of the whole estate to the present day. In 1878, thirteen years afterwards, Kéné T. Beauregard, appearing as agent of certain non-residents, claiming to be creditors of the succession of E. S. Lampton, presented a petition to the parish court of Plaquemines, in which he averred that he was authorized by said creditors to collect the debts due them and, to that end, to apply to be appointed curator of the succession; and alleging that the succession was vacant, he prayed that an inventory should be taken, and that, in due course of proceeding he might be appointed and qualified as curator. The inventory was taken and homologated, and in ordinary course Beauregard was appointed and qualified as curator.

In the whole course of these last proceedings we find not the slightest reference to the former mortuary proceedings, and nothing to show that the parish judge was even made aware that such had ever taken place.

Thereupon Beauregard, in his capacity as curator, instituted the present petitory action against the defendant, Julia Ann Lampton, alleging that the immovable property described in the inventory belonged to the succession of E. S. Lampton; that, immediately after his death, thé defendant, “without color of right or title,” took possession of the whole estate of said E. S. Lampton, and had, since that time, possessed and enjoyed the same, and appropriated its revenues; wherefore, he prayed for judgment decreeing the property to belong to the succession, condemning the defendant to deliver the same to him as curator, and to pay $10,000 as rents and revenues of said immovables, and a further sum. of about $3300 as the value, of movable estate converted to defendant’s use.

Defendant excepted to the action on two grounds, viz:

1st. That plaintiff had no right to stand in judgment as curator, because the succession was not vacant, but had been previously administered.

2d. That, heirs having been put in possession of the estate by judgment of the District Court in 1865, which judgment was of record and undisturbed and remained in operation and effect, the plaintiff had no standing in court.

Subsequently, reserving fully the benefit of said exceptions, for-answer, in case tney should be overruled and not otherwise, she set up her title to the property by inheritance from E. S. Lampton and her mother, and under the judgment of the District Court putting herself and mother in possession. She further pleaded the prescription of three, five and ten years; and, in case her defenses should be overruled, she reconvened for improvements and betterments.

The case went to trial on the merits without prior ruling on the exceptions. Evidence was taken touching the status of defendant’s mother as the lawful wife of E. S. Lampton, and that of defendant as the child of E. S. Lampton.

The j udge maintained the status of the mother as the lawful wife of deceased; but decided that defendant was not his child; overruled the plea of res judicata; maintained the plea of prescription as to the one-half of the property inherited from her mother, but overruled it as to the other half which she held as direct heir of deceased, on the ground that she was not such heir and had no just belief that she was such; gave judgment in favor of plaintiff for one-half of the property, maintained defendant’s title to the 'other half and dismissed the counter claims for revenues and improvements as in case of nonsuit.

Prom this judgment'defendant has appealed.

We cannot enter into the merits of this controversy so far as the actual status of defendant and her mother is concerned, as to which, however, we may say that the evidence is by no means satisfactory to our minds so far as it impeaches the status of defendant.

We find it unnecessary to inquire how far the exceptions, pleaded in limine by defendant, were waived by her going into trial on the merits, without requiring action on them.

The original mortuary proceedings in the succession of E. S. Lamp-ton and the judgment rendered therein, putting defendant and her mother in possession as partner in community and sole heir, are set up in the answer as well as in the exceptions, and the whole were offered and received in evidence on the trial.

We consider those proceedings to- be a complete bar to the present action.

The decision in Soye vs. Price, 30 An. 93, by irresistible reasoning, settles the principle that beneficiary heirs, whether minors or major heirs accepting with benefit of inventory, may, as such, be put in possession of the succession, without administration and liquidation thereof, unless ■the latter be required by creditors, and such heirs may then be sued by creditors in courts of ordinary jurisdiction.

In another case it was held that, when a surviving wife becomes adjudicates of interest of heirs in the community and is then put in possession of the whole estate, the succession is closed, and succession creditors may sue her in courts of ordinary jurisdiction. Augustin vs. Avila, 29 An. 837.

Again, held: When heirs are put in possession, the succession is wound up and ceases to exist. Creditors of succession become creditors of heirs, and if heirs become insolvent, the creditor has himself to ■blame in not having required them to give security, as he might have done. Sevier vs. Sargent, 25 An. 220.

Held: Judgment of parish court ordering heirs into possession cannot be treated as an absolute nullity or attacked collaterally, and creditors in such case, can no longer proceed against the former succession representative, but must sue heirs. Fowler vs. Gordon, 24 An. 270.

Held: The putting of heirs in possession terminates the succession, and if a creditor subsequently apply for administration, his application must be rejected; his remedy is against the heirs. Succession of Durnford, 25 An. 56.

Other authorities exist to the same effect, which are quoted in these several cases.

From these authorities, it conclusively results that in the original , mortuary, proceedings the succession of E. S. Lampton was opened and was closed and wound up.

We cannot recognize the doctrine that, in such a case, in an independent proceeding, having no reference to, but entirely ignoring, the ■original completed mortuaria, creditors can reopen such a succession ■and provoke an administration. As long as such original mortuaria and the judgment closing and winding them up exist, and are not revoked or set aside or reopened by the court which administered them, ■subsequent independent mortuary proceedings are null and void and can vest no title or authority in representatives appointed under them.

Nothing, in the record indicates that the judge who appointed plaintiff as curator was aware of the existence of the original mortuaria, which had taken place thirteen years previously and before a different -court, to whose probate jurisdiction his court had succeeded. We can not believe that, if he had been aware of them, he would have maintained the new proceedings.

We discover in the record no reason or motive for the anomalous •course pursued. It does not even appear that the creditors, who provoked the new administration, ever even demanded payment from •the beneficiary heir, who had expressly assumed the payment of succession debts to the extent of the value of the succession property.

Conceding that she would have refused payment, she was open to ■suit by them in the ordinary tribunals, and, as she remained in possession of the property,-and as it is not made to appear that she had either alienated or encumbered it, we cannot perceive why this remedy was mot perfectly effective.

Her status as heir was a matter which creditors could, in no case, have any right or interest to contest. It was no concern of theirs, since their rights of payment were superior to the claims of any heir.

No persons have appeared, so far as the record shows, to claim the inheritance or to set up conflicting rights of heirship.

Admitting that, under some conceivable circumstances not here established, creditors, as well as heirs, 'might have an interest to set aside the order of possession and to have the property restored to the custody of the Court for administration and distribution, it is yet clear that such proceeding could only be taken as a continuation of the -original mortuaria, by demanding therein, contradictorily with the heirs, a revocation of the order of possession, and the appointment of -a curator, with the right to demand restoration to him by the heirs of •the succession estate.

We do not say that the ex parte judgment of the probate court, recognizing heirs and putting them in possession, operates as res judicata upon the question of their status.

What we hold is, that such order, as long as it exists of record and unrevoked, operates as a closing of the succession, and is a bar to further mortuary proceedings, which can only be had after the setting aside thereof. It cannot be ignored and treated as an absolute nullity.

These considerations are fatal to the right and title of plaintiff, upon the strength of which alone could he succeed in the present action. The rights of creditors and heirs in proper proceedings are unaffected hereby.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and proceeding to render such judgment as the lower court should' have rendered, it is now ordered, adjudged and decreed that the demand of plaintiff be rejected at his cost in both courts.

Rehearing refused.


text:
    No. 8314.
    The State of Louisiana ex rel. J. W. Hallisy vs. William Voorhies, Judge of the Second City Court of New Orleans.
    This Court, “by virtue of the authority to it granted by Article 90 of the Constitution, orders the judge of the Second City Court to hear the evidence and pass upon the Exception to his jurisdiction, before proceeding further in the case.
    .On application for Writs of Certiprari and Prohibition.

      B. Dalton for the Relator.
   The opinion of the Court was delivered by

Bermudez, C. J.

Considering that, under the showing made, the defendant judge should have heard and passed upon the evidence seasonably offered by the relator on the trial of the exception to the jurisdiction of the court rations material, to show that the value of the things in dispute exceeds one hundred dollars, and that no further proceedings should be had in the case until after the evidence shall have been heard and the exception passed upon, C. P. 857, 333, Const. Art. 90, 32 An. 549, 553,

It is ordered that the decree of the City Court overruling the exception be avoided and set aside; that the exception be reinstated and set for trial; that the defendant judge be directed to hear the evidence offered by the relator in the ease mentioned in the petition, and after hearing the same, to pass upon the exception in conformity with law, and that the prohibition herein issued in limine be perpetuated at defendant’s cost.