source: Caselaw Access Project

author: Spencer, J.

license: Public Domain

text:
    No. 6963.
    Succession of R. J. Elliott, Lewis Austin, Tutor, vs. Mrs. M. E. Elliott, Administratrix.
    If it appears that the speeial mortgage given by the tutor in favor of the minor in order to release the general legal mortgage on the tutor’s property was based on an homologated account of the tutor that was false and fraudulent on its face, the giving of the special mortgage, and the release of the general mortgage in the minor’s favor, although sanctioned by advice of a family meeting and a decree of court, will be held null and void, not only as against the tutor’s succession, but also as against any creditor of his cognizant of the fraudulent character of the homologated account.
    The legislation of 1869 requiring all mortgages to be recorded in the same book did not require mortgages already legally registered to be re-recorded.
    The vendor of land may acquire a legal mortgage on the land by virtue of recorded judgments against his vendee.
    If the widow, or any one of the minors, possess in his or her own right $1000, nothing can be allowed under the homestead law.
    The failure of the Recorder of Mortgages to register with the private contract formed by a furnisher of supplies with the planter, the proof of its execution, will not impair the privilege acquired by the record of the contract.
    Pees due physicians for professional services during the last illness can not be. ranked as privilege claims unless duly recorded.
    ^PPEAL from the Parish Court of East Baton Bouge. Sherburne, J.

      Sam’l P. Greves for Austin, tutor, appellee.

      Herron, Bird & Beal for administratrix, appellee.

      Favrot & Lanion and G. W. Buckner for Newell, appellant.
   The opinion of the court was delivered by

Spencer, J.

B. J. Elliott was twice married. By this first wife, Edith. Austin, he had one child, William. Edith died in 1864, leaving as sole heir said child then and yet a minor. At the death of his said wife, Elliott owned in community with her the plantation (near Baton Bouge) about which this controversy in part relates. In 1868 Elliott qualified as natural tutor of his said child, and Jeff. Thomas was appointed under tutor.

During the marriage between Elliott and his deceased wife, he received of her paraphernal funds, from the estates of her father and brother, $3961 75.

In June, 1868, Thomas, the under tutor, proceeded against Elliott, tutor, for an account of tutorship, alleging that Elliott was embarrassed and the minor’s rights endangered. The account was rendered, and exhibited the above amount, $3961 73, as due the minor in money, and estimated the community property (the plantation) at $5000; of which one half belonged to the minor. No debts were stated against the minor or community. This account was homologated and made the judgment of the court. This judgment of homologation was recorded as a judicial mortgage. The claims of the minor were also duly recorded as legal mortgage prior to January 1,1870.

Thus matters stood until Feb., 1872, when Elliott applied to have the minor’s interest in the community property, i. e., the plantation, adjudicated to him under Art. C. C.

The plantation was valued by experts, and on the advice of a family meeting the minor’s share of said property was adjudicated to Elliott at $1000, with reservation of special mortgage, etc.

On Feb. 28,1872, Elliott applied for leave to give a special mortgage to the minor, under Art. C. C. He accompanied this application by an account of tutorship, filed Feb. 28, 1872, crediting the minor, as before, with paraphernal funds of the mother, $3961 73, and 5 per cent interest thereon; also with $1000, the price of the adjudicated community property. But he now claimed credit for large sums paid by him on community debts, which by said account were fixéd at $6662 49, one half to debit of minor being $3331 24. This sum together with the sum of $1083 40 for law charges, expenses of minor, etc., amounted to $4414 66, thus leaving balance in favor of minor of only $1286 52.

The under tutor, promptly, on the day this account was filed, answered “that he had no objection to its homologation; that having carefully examined it and the accompanying vouchers, and believing the same correct,” he joined in the prayer for its homologation.

It was on next day homologated, and the sum of $1286 52 fixed as the amount due the minor. No proof beyond the vouchers was administered as to these alleged community debts. A family meeting was convened and experts appointed to pass upon the sufficiency of the property offered to be specially mortgaged by the tutor. The report and deliberations represented it as ample. Thereupon the court authorized the special mortgage to be given by the tutor, and ordered and decreed the erasure and cancellation of all other mortgages of the minor.

The property thus specially mortgaged was a lot of 125 acres, constituting part of a tract of 327 acres bought by Elliott of J. A. Payne on Feb. 28,1872. Elliott paid for the whole 327 acres only one thousand dollars. This purchase was made on the very day he applied for and obtained authority to specially mortgage 125 acres of it, to secure $1286. This 125 acres he got valued at $2000. The evidence in this record satisfies us that $500 would have been an over valuation of it at the -time, and there existed on it two prior j udieial mortgages in favor of J. A. Payne for more than its value, as we shall see.

Having executed the special mortgage to the minor on March 8, 1872, Elliott on the same day mortgaged to Henry Newell, for a loan of #8000, the plantation, the minor’s one half of which he had caused to be adjudicated to himself a few days before for $1000.

After these transactions, Elliott died, and Lewis Austin became tutor of the minor William, and Mrs. M. E. Elliott (the second wife) became administratrix of the estate of her husband, who left a minor child, issue of this second marriage.

Lewis Austin, tutor, brought suit to annul these transactions and to reinstate the minor’s rights above described. Mrs. Elliott filed an account of her administration, proposing a distribution of the funds and estate in her hands.

That suit of Austin, tutor, and the oppositions to the account of administratrix were consolidated and tried together. The appeals from the judgment therein are the matters before us. The issues are numerous and some of them important. The principal questions presented* are :

First — Are the proceedings herein before detailed, whereby the minor William’s interest in the community was adjudicated to his father and whereby his legal and other mortgages were canceled by substitution of a special mortgage, valid and binding on him ?

Second — If not binding as between himself and the estate of his father, how far are third persons protected by the decrees in said proceedings, when they have dealt with the tutor on the faith thereof and bona fide ? Was Henry Newell the holder of the $8000-mortgage, in good faith ?

Third — Did Payne, who was a creditor by judgment duly recorded in 1868 of Elliott acquire a judicial mortgage on the property (327 acres) sold by him to Elliott, for cash, in 1872 ?

Fourth — Where the husband dies, leaving a minor child of his first marriage, possessing more than $1000, but also leaves a minor child and widow of his second marriage in indigent circumstances, can the latter claim the homestead of $1000 ?

Fifth — What is a sufficient registry of a private act of mortgage or privilege ?

Lastly — Does the physician’s bill for last illness require to be registered, to preserve its privilege ?

1st. As regards the adjudication of the community property to the father, the only objection that seems to have any force is that the price was inadequate. The property in 1868 was inventoried at $5000, and one lialf of it at $1000 in 1872. True, this was a heavy depreciation, but not greater than was experienced in many other localities in this State-during these sad and long-to-be-remembered years.

We can not from this fact alone draw the conclusion that there was a fraud-intent conspiracy between the tutor, under tutor, experts, and family meeting.

But the proceedings for substituting a special for the legal mortgages held by the minor have a very different aspect.

On the 28th Eeb., 1872, the tutor buys 327 acres of land for $1000. He stated to the vendor that he bought it for the purpose of mortgaging it to his ward and releasing his other property, so that he could give Newell a mortgage on the latter. On this same day, Eeb. 28, he formally petitions for authority to execute the special mortgage, and proposes to grant it on 125 acres of this thousand-dollar tract. He-convenes a family meeting composed of only two relatives and three- “ friends” of the minor, when there were a number of near kinsmen within thirty miles of Baton Rouge. Two of this family meeting act as-experts and report to themselves and the other members that those 125-acres were worth $2000, although they were bought that day at about three dollars per acre, as shown by the title before the meeting. The •mortgage certificate before them showed judicial mortgages to amount of several hundred dollars bearing on this land. We can not believe that they were sincere in their conclusions that the security was ample, even to secure $1286. But the most extraordinary feature of this proceeding was the account of tutorship rendered on the same day and promptly approved by the under tutor. We do not think that the provisional account rendered in 1868 precluded and estopped the tutor from showing, in subsequent accounts, that he had paid debts of the minor, and claiming credit therefor. But the account rendered on Eeb. 28,1872, was false, fraudulent, and illegal on its face. Thus the largest, item in it reads:

“Paid Dec. 3, 1863, to N. K. Knox, for note to him and claim» transferred by Col. Matta, these debts contracted in 1860 and 1861, $2712 49.”

Here was a debt alleged to have been contracted during the existence of the community, and paid during its existence, (for the wife died' in 1864!) yet charged to the minor as a debt of the community paid after its dissolution.

The next largest item of credit is $2500, the amount of a note of' Elliott’s, dated June 23,1866. There was not a scintilla of proof that-this note given in 1866 was for a debt contracted before the wife’s death in 1864.

This account was homologated and made the judgment of the court. This account therefore constituted the basis of the proceeding to give. the special mortgage, for it was of the essence that there should be an ascertainment of the amount for which this special mortgage was to be given. We think that the fraudulent character of this account and its falsity were patent on the face of it, were exhibited by its own statements and so-called vouchers.

2nd. There can be no dispute at this day as to the entire correctness of the proposition that third persons dealing bona fide are protected by final decrees rendered by courts having jurisdiction of the persons and subject matter before them, and this whether said judgments be right or wrong, honest or fraudulent. But the question here presented is, can a man be bona fide, where the very decree under which he seeks shelter bears upon its very front the brand of falsehood, fraud, and illegality ? Here was a decree which by its own enunciations disclosed that the credits claimed were false and untrue. More than this^ here was a decree which upon its face, under pretext of paying community debts, stripped a minor of his patrimony, inherited from his mother as her paraphernal estate. His mother died having a separate paraphernal estate. Her death devolved this separate estate upon her infant son, and dissolved what is now charged to be an insolvent community. Where is the law which authorized this child’s father and tu„tor to make tiiis separate estate of the minor liable for community debts, and to swallow it up, under pretext of paying them? Where the community is dissolved by the death of the wife, her minor children can not be made liable for the community debts beyond the value of the community property. The minor himself can not accept the community, nor has the tutor the power to do so to the injury of the minor. If such power exists (which we gravely doubt) it would be in the probate court upon the advice of a family meeting.

Newell lived in Baton Rouge, where these things were being done. He had the same attorney as had Elliott, tutor. When Elliott bought the property from Payne, he said it was done in order to clear his other property for Newell’s benefit. All these proceedings for divesting the minor’s mortgages were hurried through in a day or two, and at once followed by the mortgage to Newell. We are impressed with the belief and conviction that Newell was cognizant of every step in the proceeding and interested in the event. The judge a quo so thought, and we think his conclusion fully justified.

We therefore hold that the proceeding whereby the community property was adjudicated to Elliott must be maintained; but that the proceeding to release the minor’s mortgages by substitution of the said special mortgage is without effect and void, both as to the estate of Elliott and his creditors. The account of Eeb. 28,1872, must be set aside as fraudulent and illegal; and the minor’s mortgage, for such isum as may be found due him on a final account of his tutorship, to be rendered by the administratrix of Elliott, must be recognized as being first in rank on all the real estate of the deceased. It is manifest that iieither the account of 1868, nor that of 1872 (being both provisional) can be resorted to as establishing the amount due the minor, for the tutor may after their dates have lawfully expended moneys for which he must have credit.

3d. We see no room to doubt that the Payne judgments are as mortgages prior in rank to the special mortgage of Newell. They were Recorded five years before it, in 1868, in the Book of Judicial Mortgages. 'The legislation of 1869, requiring all mortgages to be recorded in the ■sanie book, did not require mortgages already legally registered to be re-recorded.

That law provided for the future. Nor is there any force whatever in the proposition that Payne as vendor of the 327-acre tract could not without breach of warranty acquire a mortgage thereon by operation of his recorded judgments. What prevented his previously obtained judgments attaching to the property sold by him as soon as that property belonged to his debtor ? Payne’s warranty was that the property was tree of mortgages imposed upon it by himself or previous owners, not that he would not acquire a mortgage on it.

4th. As to the widow’s and minor’s right to the $1000-homestead. The claim is based on Art. 3252, Civil Code:

“ Where the widow, or minor children of a deceased person, shall fee left in necessitous circumstances, and not possess in their own right property to the amount of one thousand dollars, the widow or the legal representatives of the children shall be entitled to demand and receive from the succession of the deceased husband or father a sum which, added to the amount of property owned by them, or either of them, in their own right, will make up the sum of one thousand.”

It is now elementary that laws of this class must be strictly construed and can not be extended by implication or construction. If the Widow, or any one of the minors, or all of them together, possess in their own right flOOO, nothing can be allowed, even if some of them ■have nothing. This is the spirit of the adjudicated cases, and is, we think, correct doctrine. See Stewart vs. Stewart, 13 A. 398. McCall vs. McCall, 15 A. 527, 25 A. 535, 26 A. 615.

As our decree gives the minor William, in his own right, a sum exceeding that amount, and recognizes a first mortgage to secure it, this preeludes the allowance of $1000 to the widow and the other minor.

5üh. The lien and privilege of Newell on the proceeds of the crop of cotton; raised in 1874, to the extent of his recorded supply contract,-$1500, is we think fully established and should have been allowed-.

The objection that the recorder did not register with the contract, the proof of its execution is immaterial. It was a private act. The object of registry is notice, and that was fully effected by the registry in this case. Whatever may be the law as to registry of sales, the Code is explicit as to mortgages and privileges.

Art. 3367 expressly provides that mortgages under private signature may be registered, without previous acknowledgment by party or proof by subscribing witnesses, where the recorder on his own responsibility and knowledge is willing to do so.

It is unnecessary to discuss the question as to the effect of Newell’s sequestration of the cotton prior to Elliott’s death. We may remark, however, that sequestration gives no privilege. It issues on and secures privileges already existing. It is otherwise with attachments and seizures under fi. fa.

6th. The claim of A. Rosenfield should be as a privilege reduced to $21 75.

7th. The physicians’bills — to wit : Dr. Dupree $690, and, Buffington; $250, allowed by administratrix as privileged expenses of last illness, are opposed as excessive, and as having never been registered and therefore not to be allowed as privileges. The accounts though large, are fully proven to be at customary rates. The Civil Code declares that no privilege shall have effect as against third persons unless duly records ed. Art. 3274, C. C.

However unreasonable this provision is when applied to cases like this, still it is the law, and is binding on this court. We know no law excepting or exempting such claims from the necessity of this registry. These claims can not be ranked therefore as privileged. We apprehend that claims which arise after the death of a party, and in the administration of his estate, and which the law classes as privileged, need not be recorded, since registry is without effect, after decease ; and by giving the privilege under these circumstances the law manifestly intends to exempt them from registry. See, also, R. C. C., Art. 3276, so providing,

8th. McCabe’s bill should be allowed as a privilege only for $20, his wages during the time he acted as a domestic servant.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended as follows :

1st. The account of tutorship filed by Elliott, tutor, on Eeb. 28, 1872, and the decree homologating the same are set aside and annulled; the proceeding, orders, and decrees granting permission to Elliott, tutor, to give the special mortgage of March 8,1872, to his ward, and canceling the said ward’s previously acquired mortgages, are also set aside and annulled, and the said previous mortgages of said minor are re-instated in full force, and declared to be first in rank on all the real estate of said Elliott to secure the payment of such amount as may be ascertained, on final account of tutorship to be due him.

2d. The opposition to the widow’s claim for $1000 is sustained, and said claim rejected.

3d. The claim of Newell to be placed- as a privileged creditor on the proceeds of the crop of 1874 is sustained to the amount of fifteen hundred dollars.

4th. The opposition to account of A. Rosenfield is sustained, and his claim as a privilege reduced to $21 75.

5th. The opposition to the claims of Dr. Dupree and Dr. Buffing-ton is sustained in so far as relates to the privilege of said claims, but not otherwise.

6th. The claim of McCabe as a privilege is reduced to $20.

It is further ordered that as thus amended said judgment be affirmed, and this cause is remanded for the sole purpose of having the amount due the minor William, Elliott, ascertained, in accordance with the law and the views herein expressed. The costs of this appeal to be paid by the succession.

Rehearing refused.


author: Manning, C. J.

text:
    No. 7180.
    Joseph Swan vs. Geo. Vogel et al.
    A recorder of mortgages can not deprive a mortgagee of his rights under a recorded mortgage by omitting it from the index, or by indexing it improperly, 1 or by omitting it from his certificate.
    Where a widow makes two mortgages in favor of different parties, and is described in each as the widow of a person with the same given name, and whose family name is only spelled differently in the two mortgages by the transposition of two letters, the identity of the mortgagor is sufficiently indicated in each.
    A PPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      A. J. Lewis for plaintiff and appellant.

      John & C. B. Bay and Jerome Meunier for defendants and appellees.
   The opinion of the court was delivered by

Manning, C. J.

In September 1873 Katharine Sier, widow, executed her note for six hundred dollars with eight per centum interest from maturity, payable one year after date. At the same time she gave a mortgage to the defendant'Yogel to secure its payment on two lots in this city. Both the note and mortgage are signed by her as written above, but her name is written by the notary Kdtharina Kramer widow of Bernard Sire.

In May 1876, she executed her note to the plaintiff Swan for •$1,380.00, and secured it by mortgage on one of the -same lots. This note and mortgage were signed by her in the same way .as the others, and the notary describes her as Katharina Kramer widow of Bernard 'Sier. The signatures to both of the notes, and both of the mortgages, •are the same. The notary in the first mortgage has written her name Sire, and in the second Sier. Both mortgages were recorded on the day they, were executed.

Swan foreclosed his mortgage ih Oct. 1877, and on the 19th. .of that •month bought the mortgaged property at sheriff’s sale. The certificate of the recorder of mortgages, furnished and read at this sale, made no mention of the Vogel mortgage, and the Swan mortgage was certified •as the sole incumbrance on the property, except the drainage and other city taxes.

A few days after this sale, Vogel took out executory process to fore-close his mortgage, and it was injoined by Swan. That is the present suit. The grounds of injunction are, that Vogel and Mrs. Sier fraudulently concealed from Swan the existence of the Vogel mortgage, and that he could not obtain information from the mortgage office of its existence because it was not inscribed therein in her real and proper name Sier, but in another and different name, viz Sire, and that the certificate of the recorder could not be otherwise than it was, as Swan’s mortgage was the only one resting upon the property of widow Sier.

The testimony does not sustain the allegation of concealment. Kuhn, a witness, says he spoke to Swan at th.e sale about the Vogel •mortgage, and Kramer swears that Swan knew of it shortly after its execution, and before the date of his own mortgage, while Mrs. Sier states that she told Swan of it the day she executed it. Swan is her son in law, and at that time she lived at his house. They have since quarreled. She also states that she received only two hundred dollars from "Swan for her note of near fourteen hundred dollars, while Swan swears •that he paid her; or paid for her, $525 at one time, and $800 at another. We attach no importance to that feature of the case.

Mr. Onorato, the deputy sheriff who made the sale, says he read the recorder’s certificate aloud, and some one mentioned that there was a mortgage upon the property previous to Swan’s, and he remembers Mr. De Armas another deputy who was present replied, if there was one, it was not inscribed, or if it was inscribed, the' recorder had omitted it -in his certificate.

Mr. Richardson, the deputy of the recorder of mortgages, says the sheriff asked him for a certificate of the mortgages against Katherine Kramer, and that in one record she is described as the widow of Bernard Sier, and in the other as Sire, and he certified the existence of the former — that these two mortgages are indexed in these names, but if there had not been an error in the “research,” the Vogel mortgage would have appeared on the certificate. It appears that when a search •of the mortgage records is made for the purpose of giving a certificate,, a memorandum is made of the mortgages appearing against the name of the mortgagor, and these memoranda, which are known in the office--as “researches,” are preserved. So that afterwards when another certificate is wanted of mortgages recorded in or against that name, reference is, had to the “research” to ascertain what mortgages were recorded up to that date. The witness says, there was an omission in the- research ” in the present instance, which had been made by another and former deputy, and that he discovered that omission after the sale.. Of course he must refer to the Vogel mortgage as the omission, since-that was the only one besides Swan’s.

The counsel for the plaintiff insists that the law requires an index: of the mortgage books' to be kept; and the recorder is, and must be-guided by that in preparing the certificate. But that would be substituting the index to the mortgage, and is tantamount to saying that although the' mortgage may be recorded in the proper book, it is of no-avail if not indexed. The index is ordered by law to be kept for convenience, but it is not a part of the mortgage record. Certainly it does-not take the place of the record in the book, and supersede it.

There was enough in the mortgages as recorded to indicate the-identity of the mortgagor in each. In both of them she was described as Katherina Kramer, widow of a man whose first name was Bernard and whose family name was spelled differently only by the transposition of two letters. The deputy recorder, who gave the certificate, impliedly admits that if the mortgage book had been consulted instead of the “ research,” this identity of description would have caused him to put the Vogel mortgage on the certificate.

But the real question is, can the recorder deprive a mortgagee of his rights under a recorded mortgage by omitting it from the index, or by indexing it improperly, or by omitting it from his certificate? It is-unnecessary to say that he cannot. Vogel’s mortgage was recorded. The property was described in it. A part of it was the same as that-mortgaged to Swan. The name was mentioned with descriptive particularity, and Vogel cannot lose his rights under the mortgage because-of a mistake in the officer who gave the certificate.

‘ Independent of this, Swan knew of the prior mortgage. The remark made by a bystander at the sale, and the reply of the officers-making the sale, must have reminded him of the fact, of which he had been apprised before, i. e. that there was a previous mortgage, and Yogel held it. He bought with his eyes open.

We have not noticed another ground of the injunction, that all interest had been paid on Yogel’s note up to October, 1878, and its payment had been postponed till then, because it is not proven, or rather it. is disproved.

The defendant prays for damages. We do not feel inclined to inflict; them. Swan’s injunction does not appear to have been wantonly provoked, and the probabilities are that he will lose his debt. The lower judge dissolved the injunction with costs only.

The judgment of the lower court is affirmed.


author: DeBlanc, J.

text:
    No. 7030.
    James L. Cole vs. Thomas La Chambre et al.
    Under the act of Congress passed in 1875 a suit can not be removed from a State to a Federal Court, after the ease has been twice llxed for trial in the State court at two different sessions of said court.
    A continuance will not be allowed on account of the absence of evidence to be taken-under a commission, when it appears that the party who applied for the commission was dilatory, and neglectful in taking it out.
    The absence of a witness will not warrant a continuance when it appears that the-order to summon was given by plaintiff only two days before the trial, and that, defendant offered to admit that the absent witness would, if present, testify as-stated by plaintiff.
    An obligation which was valid when incurred can not be impaired by any amendment of the constitution of the State.
    A homestead can not be located on land held in indivisión.'
    A mortgage on land in existence before the enactment of the homestead law is not, affected by that law.
    It is not necessary to prove a mortgage, as to defendants against whom a formal judgment has been rendered expressly recognizing the mortgage.
    APPEAL from the Fifth Judicial District Court, parish of Iberville-McVea, J.

      Barrow & Pope for plaintiff and appellee.

      Hewed & Parlange for defendants and appellants.
   The' opinion of the court was delivered by

DeBlanc, J.

In May, 1867, Ernestine — the daughter of Henriette-Lauve and of A. N. Cropper, the first husband of the said Henriette Lauve, obtained judgment — in the 5th district court of this State — • against her mother and James L. Cole, her mother’s second husband, for $14,727,53c,- with eight per cent interest thereon from the date of said judgment.

That amount represents the said Ernestine’s inheritance from the succession of her father, and is secured by the legal mortgage which the law gives to widows, and which — according to the terms of its recognition in the decree of May 1867, bears on the property of Ernestine’s mother — as her tutrix, and of James L. Cole, as hér co-tutor, since the 18th Of August 1855.

On the 7th of July 1870, Ernestine Cropper, then the wife of E. D. Woodlief, transferred said judgment to William T. Gay, who — on the 30th of September 1871 — was recognized, by a decree of the 5th district ■Court of the State, as transferee of said judgment, and who — on the 7th of June 1872 — subrogated Thomas La Chambre & Co. to all the rights which he had acquired from said Ernestine Cropper, and against James L. Cole, his wife and their property. Of this last mentioned subrogation, the commercial firm of L. Grand & Co., to whom — on the 16th of April 1870 — the said James L. Cole had sold the undivided half of a plantation subject to the legal mortgage of Ernestine Cropper — took express cognizance by the intervention of- one of its members in the act of subrogation and waived all future notice of the same.

On the judgment then transferred to them, the said Thomas La Chambre and Co. caused a writ of fieri facias to issue out, and under the seal of the 5th district Court, and — under that writ — the sheriff ■seized the plantation, one half of which James L. Cole has sold to L. Grand & Co, and the whole of which is subject to the legal mortgage, securing the transferred judgment.

This seizure was made by the sheriff and enjoined by James L. Cole and his wife, in the month of May 1877 : their injunction is based on the grounds :

1. That said judgment hewing been rendered by virtue of the probate jurisdiction of the late Fifth Judicial District Court of Iberville, ■as organized under the constitution of 1864, in a suit between minors ■and their tutrix and co-tutor in a matter appertaining to the tutorship of said minors, was, by the constitution of the State of Louisiana adopted in 1868, and the laws passed subsequent to said adoption transferred to the Parish Court of the Parish of Iberville, which alone, under said constitution, has jurisdiction of said suit, and which is the ■successor of the late Fifth Judicial District Court, so far as same exercised probate jurisdiction, and particularly in all suits for the settlement of accounts between tutors and minors. That the writ issued out of the Fifth Judicial District Court and is attested in the name of the judge and bears the seal of the said court, when, if any writ could issue ■on the said judgment, which they deny, it should have issued from the parish court and should be attested by the parish Judge and bear the seal of said parish court.

2. That the judgment on which said writ of fieri facias issued, was at the time same issued and is now prescribed, no party interested in said judgment having had a citation issued according to law, to defendants from the court which rendered the judgment within the ten years from the rendition thereof.

3. That the active mass of the account of tutorship on which said judgment was rendered, was composed of partly the price of the plantation seized and partly the price of slaves, and that — under the actual Constitution of the State — a contract for the sale of persons can no longer be enforced by our courts.

4. That — of the property seized by the sheriff — the law exempts from seizure one hundred and sixty acres of land, the buildings thereon occupied as a residence, one work horse and one wagon or cart.

Defendant’s answer was filed on the 19th of July 1877, and — on the 21st of January 1878 — plaintiffs presented an application to have this cause transferred to the circuit court of the United States. Their application was overruled, their injunction tried and dissolved and their demands rejected; but defendant’s claim for damages was not allowed, and — on that ground — they have appealed from the decree of the district court.

I.

Were plaintiffs entitled to the removal of their injunction from the State to the federal court ?

Without her sovereignty and its attributes', a State would soon be reduced to the condition of a province, and of all those attributes — the most important, by far, is her judicial power. The federal enactments which, as a necessity of our form of government, encroach upon and lessen the integrity of that power, should not be enlarged by any mistaken interpretation of the State Court.

The 3d Section of the congressional act of March 3d, 1875, provides that whenever the plaintiff or defendant shall desire to remove any suit of a civil nature — at law or in equity — from the State to the federal court, he or they may make and file a petition in such suit in the State Court before or at the term at which said cause could be first tried,, and before the trial thereof, for the removal of such suit into the Circuit Court to be held in the district where such suit is pending.”

Plaintiffs’ injunction was granted on the 31st of May 1877, the answer to the injunction filed on the 19th of July of that year, and the application for a removal presented six months and two days after the filing of the answer, when the case had twice been fixed for trial in the State Court, the first time for the 26th of July 1877, and the second time for the 21st of January 1878, after plaintiffs had obtained from said court an order for the issuance of a commission to take evidence, after they had asked and been denied a continuance of this case.

In the language of the Supreme Court of the United States, and of our State, an injunction is but a graft upon, and not a proceeding independent and separate from an already existing and original action. They are, in almost every instance, inseparable twins: but, were it otherwise, this case — whatever it may be — an original or ancillary proceeding, could have been tried at the term of the 5th district court held in July 1877, and it was too late to attempt to remove it at the subsequent term, after the jurisdiction of the court had been — not only accepted by the plaintiff — but resorted to, chosen and used by them, after authority had been invoked to procure evidence for a trial which appears to have been twice fixed without objection.

29 A. 372 — 30th A. 1, and cases therein referred to.

II.

The motion for a continuance of this case from the January term held-in 1878 to its next term was properly refused : the order to issue a commission to take evidence in Prance was made in July 1877, and that commission was not applied for before the 17th of December ; under these circumstances, the fact that it was not returned in January 1878, did not constitute a good ground to postpone the trial. Had the evidence which was to be taken under that commission been of any importance to plaintiffs, they would not have neglected during four months to' procure and forward it.

The district judge did not err in refusing to continue the case, on account of the absence of witnesses, to summon whom to appear on the 21st, plaintiff’s order to the clerk was only given on the'19th of January, a Saturday — -when the trial had been fixed since the 10th of that month; and besides defendant’s counsel had offered to admit that, if present, the witnesses mentioned in the affidavit for a continuance, every one of whom was then absent from the parish, would testify as stated by plaintiff.

III.

The objection that the parish court alone could have issued execution on the judgment rendered by the 5th district court, was passed upon and determined in case No. 7048 of the docket of the Supreme Court, entitled Thomas La Chambre & Co. vs. Henriette & J. L. Cole, decided in April last. That decision also disposes of the plea of prescription opposed by plaintiffs in injunction to the judgment sought to be executed by the defendants.

IV.

To discover that the account of tutorship from Mrs. Cole to Ernestine, a child of her first marriage, includes the price of slaves, we would have to look beyond two judgments, that rendered in favor of the said Ernestine, in May 1867, and that of September 1871, by which William 'T. Gay was recognized as the transferee of said last mentioned judgment. That discovery made, we would certainly hold — as did the Supreme Court of the United States, that — when incurred — the obligation ■of Mrs. Cole and of her husband, the first as tutrix and the other as co-tutor — was a valid obligation, and that the constitutional provision which declares its nullity and forbids its enforcement, is in violation-of the federal constitution.

13 Wallace, 646 — 25th A. 349, 350.

Y.

Eor two reasons, the claim for a homestead cannot be sustained:

1. J. L. Cole is but a part owner of every acre and fraction of acre seized, and a homestead cannot be located on land held in indivisión.

28 A. p. 783, 608, 356 — 26 A. 156.

'2. The mortgages securing the claim of the seizing creditor, affected the land seized prior to the passage of the act of the Legislature, known as the homestead act, and — in such a case — the land may be sold to satisfy the mortgage.

20th A. p. 244.

It matters not, ns concerns James L. Cole and his wife, that defendants have not introduced the evidence of the tacit or legal mortgage bearing in favor of Ernestine Cropper on the plantation seized. It is •sufficient — as to them — that, in the judgment rendered contradictorily with them, more than ten years ago, that mortgage is expressly recognized, as having taken effect on said plantation since the 18th of August 1855 — nor does it make any difference that the whole of the property, instead of Cole’s interest therein has been seized by the sheriff. His co-proprietor alone might,' perhaps, complain of that alleged irregularity.

We do not consider that a single valid defence has been opposed by plaintiffs to the execution of the judgment transferred to Thomas La Chambre and Co. and — by their injunction — they and the surety on their bond, have incurred an amount of damages equal at least to that of their bond.

It is, therefore, ordered, adjudged and decreed that — in so far as it dissolves the injunction and rejects the demand of plaintiffs, the judgment of the Lower Court is affirmed: and — amending the same,

It is further Ordered, adjudged and decreed that Thomas Latíhambre & Co. do have judgment against and recover, as damages, from plaintiffs — the said Henriette Lauve and James L. Cole, and Arthur Shiff, their security on the injunction- bond, jointly and severally, the sum of three hundred dollars.

It is lastly ordered, adjudged and decreed that the costs of this appeal be paid by plaintiffs.

Rehearing refused.


author: Manning, O. J.

text:
    No. 7232.
    John L. Sterry vs. the Board of Liquidation.
    Bonds of the State issued in strict conformity to law, and for a valid consideration, and not shown to have constituted a part of the free-school fund, are entitled, under the funding act of 1871, to be exchanged for the consolidated bonds of the State.
    A PPEAL from the Third District Court, parish of Orleans. J. Monroe,

      Hornor & Benedict for plaintiff and appellee.

      •J. G. Egan, Assistant Attorney General, for the State,, intervenor and appellant.
   The opinion of the court was delivered by

Manning, O. J.

The plaintiff is the holder of six bonds of the State-for one thousand dollars each, issued to the New Orleans, Jackson, andi Great Northern Railroad, with coupons payable semi-annually for thirty dollars each, on and after May 1, 1874. He applied to the Board of Liquidation to have them funded under the Act of 1874 (Sess. Acts, p, 39), and the amendatory act of the following year (Sess. Acts 1875, p. 110).

The answer of the Board is a general denial. The State intervenes-in behalf of the Eree School Eund and claims the bonds as the property of that fund, of which she is the trustee, averring that they lost-their negotiability when that fund became the owner thereof, and were no longer alienable. The Secretary of State and Treasurer, as custodians of the school fund join in the intervention.

The act of Congress of 1843, authorizing the sale of the lands theretofore reserved and appropriated for the use of schools, and the investment of the money arising from such sale in a productive fund; and the several acts of our legislature, passed for the purpose of carrying into-effect the intention of Congress, have been recited at length in the State ex rel. Durant v. the Board of Liquidation. 29 Annual, 77.

The constitution of 1852 declared that the proceeds of the sales of these lands shall be held by the State as a loan, and shall be a perpetual, fund on which the State shall pay an annual interest, which interest, shall be applied to the support of public schools, and such appropriation, shall remain inviolable, art. 137. The constitution of 1868 contains the same provision, art. 139. In 1872 the legislature undertook to abolish the free school fund — the same fund that had been created by Congress- and the General Assembly of this State — and required the Auditor of Public Accounts and the Treasurer to advertise and sell the bonds belonging to this fund; and further enacted that all moneys, bonds, and., other assets belonging to it should be transferred to another fund,. created and to be known as the fund for the redemption of the floating debt of the State. Sess. Acts 1872, p. 134.

We held in Durant’s case that the legislature had not authority to divest the free school fund from the purposes to which it had been directed to be sacredly applied. But there is no proof in this record that the bonds of the plaintiff ever belonged to that fund. The report of the State Treasurer, and the advertisement of sale of bonds, and the report of that sale, mention a large number óf bonds that were then disposed of, and among them many belonging to the free school fund, but there is nothing to shew that these bonds were among them. There is nothing in the evidence that identifies these bonds with those sold under the act of 1872.

There is no dispute that the bonds of the plaintiff were issued in strict conformity to law — and not in violation of either the National or State constitutions — and for a valid consideration, and therefore they have the three qualities required by the Funding Act, and are entitled to be converted into State consols. But as the intervenors have not furnished any proof that they constituted a part of the Free School Fund, their intervention was properly dismissed.

The judgment of the lower court is affirmed.


text:
    No. 7304.
    The State ex rel. T. Fontelieu et al. vs. the Judge of the Sixteenth District.
    A suspensive appeal will not lie from an order of the District Court of the State transferring a suit from another District Court of the State.
    ^PPLICATION for a mandamus.

      Breaux, Fenner & Sail, and Edward Simon for relator.

      Bohert Perry and Frank B. Chretien for respondent.
   The opinion of the court was delivered by

Manning, O. J.

A rule was taken before the judge of the Sixteenth Judicial District upon the relators to shew cause why a suit pending in the third District should not be transferred to the first named court. The relators excepted that the proceedings have been discontinued by the district attorney of the third District, and then answered. The judgment overruled the “ motions, exceptions, and defences” filed by the district attorney, and the rule was made absolute. A suspensive appeal was prayed, which being refused, the relators have applied for a mandamus, and we have now to determine whether the provisional writ shall be made peremptory.

There is a manifest reason why an appeal should lie from an order transferring a o tuse from a State court to a U. S. court, that does not hold good when the transfer is from one State court to another. In the former case, the State courts lose the jurisdiction entirely, and if an appeal were not permitted, there would be no opportunity to ascertain or 'test the legality of the order. But in the latter case, the appeal is eventually to this tribunal, and the order of removal comes up with the final judgment, and is subject to our review. The injury is therefore not irreparable.

In Todd vs. Andrews, 3 Mart. N. S. 25, the appeal was from an order ■transferring a cause to a neighbouring district in consequence of the recusation of the judge, and the court say that the transfer was not ■such irreparable injury as warranted an appeal, and announce the rule to be, that wherever a party can be relieved on a final judgment, the ■grievance is not such as requires the aid of this court at an earlier period. And this ruling was followed in Powell v. Keller, 1 Annual, 25, and Pool v. Moorhouse, 13 Annual, 300. On the other hand, and for the reason that the injury would be irreparable, an appeal would lie if •the right of transfer had been denied. Jarreau v. Choppin, 6 La. 130.

The peremptory mandamus is refused at the costó of the relators.


text:
    No. 4594.
    Widow de St. Romes vs. Widow F. Blanc et al.
    The final decree of this court recognizing a mortgage which had been fraudulently canceled will not prevent the mortgage from perempting as to third persons, if it has not been re-inscribed within ten years after its record.
    APPEAL from the Fourth District Court, parish of Orleans. Collens, «I.

      L. JS. Simonds for plaintiff and appellant.

      A. J. Villere for intervenors and appellees.
   The opinion of the court was delivered by

DeBlanc, J.

On March 2d, 1855, Pierre Deverges mortgaged to Mrs. ■de St. Romes, certain property, including twelve lots of ground, to secure ■a note of $12,988,95c, of even date with the mortgage, and 'payable one year after its date to plaintiffs order. The mortgage then granted was only recorded, but never re-inscribed.

On the 8th of July 1857, by means of a false certificate, Devergés— the maker of said note — procured the cancellation of the mortgage given by Mm to Mrs. de St. Romes, on the 2d of March 1855, and, in September 1857 — sold to P. E. Wiltz the twelve lots ground which he had previously hypothecated to secure the payment of his note to plaintiff.

In January 1860, P. E. Wiltz sold to Henry Wiltz the lots he had purchased from Deverges. In 1861, Henry Wiltz sold said lots to Robert Wynnie, who — in December of that year — resold the same to P. E. Wiltz. The latter, as a part of the consideration of said re-sale, assumed the payment of two notes of each $1375, given by Robert Wynnie to Henry Wiltz, Ms vendor, and which represented two of the instalments of the price of said lots.

Morel and Isnard became the owners of the two notes herein before mentioned, in 1861, before their maturity and before the institution of plaintiff’s suit to have her cancelled mortgage recognized and enforced. That mortgage was finally recognized by a decree of the Supreme Court of the State, rendered on the 11th of May, 1868.

The mortgage granted on the 2d of March 1855, was recorded on the 3d day of said month, and that inscription preserved its rank for ten years from the date on which it was recorded, and that was until the 3d of March 1865. Up to that date, its rank neither was nor could have been affected or changed by the fraudulent cancellation — but, from that date — did it preserve its rank, though not re-inscribed, for the reason, as contended by plaintiff’s counsel, that her rights now rest on the de-. cree of the 11th of May 1868, and not on the inscription, and that the litigation which produced that decree was — as to all interested parties— a standing and sufficient notice of the existence and rank of her mortgage ?

This case was — in 1871 — remanded from this court for a new trial and to ascertain whether — as alleged by plaintiff — the title of intervenors to the note which they hold, has been acquired after the institution of her suit to have her cancelled mortgage recognized and enforced.

That allegation was, not only not sustained, but absolutely contradicted on the new trial. '

Plaintiff’s mortgage — as already said — was recorded on the 3d of March 1855, and its cancellation fraudulently procured on the 8th of July 1857. It does not appear that she ever made an attempt to obtain a re-inscription which the Recorder might not have refused or could have been compelled to make ; and her suit to foreclose the same was filed on the 30th of March 1863, four years, eight months and twenty-two days after the fraudulent cancellation, two years after Isnard had acquired the note upon which he sues, and more than eighteen months after the transfer of the note which passed into Morel’s possession. It is clear — then—that plaintiff’s mortgage has perempted. C. C. (3333) 3369 — 2 A. 100,520,768,799 — 4 A. 3965 A. 632, 321 — 7 A. 3449 A. 19311 A. 39012 A. 21613 A. 571 — 13 L. R. 245 — 14 L. R. 103 — 6 R. R„ 166,419,522 — 21 A. 22922 A. 402.

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


author: Marr, J.

text:
    No. 6979.
    In the Matter of the Minor, Victoria Fortier.
    Whenever an emergency arises which requires immediate action to protect the interests of a minor, it is the right and duty of the probate court to appoint a tutor-ad hoc to act for the minor, until a tutor can be appointed.
    An undor tutor has no power to represent the minor in a rule taken by a third person to erase the general legal mortgage of the minor on certain property of the tutor, in a case where there is no opposition of interest between the minor and the tutor. A judgment to erase; in such a rule, is an absolute nullity.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      T. A. Bartletie for the minor, appellant.

      Anatole Briengue for appellee.
   The opinion of tlie court was delivered by

Marr, J.

The father and tutor of the minor, Victoria Fortier, on the advice of a family meeting, obtained an order' of the Second District. Court for the sale of certain real property belonging to her.

It does not appear for what price the property was sold; nor is-there any direct proof in the transcript that the sale was actually made. The order of sale was granted on the 15th May, 1872.

In January, 1878, Hoffman, styling himself agent for Adam Paul, filed a motion in the Second District Court, reciting that Paul was the purchaser of the property, at the public sale made on the eighth July, 1872, pursuant to the order of the court; and that, in order to clear up the title, it was “strictly necessary” that the general mortgage resulting from the inscription of the certificate of the Clerk of the Second District-Court, in July, 1869, that E. C. Fortier had been appointed tutor of the minor, Victoria Fortier, should be canceled and erased.

On this motion a rule was granted, requiring Joseph Holz, under tutor of the minor, Victoria Fortier, to show cause, instanter, why the mortgage should not be canceled and erased. Holz was present; and he, in open court, submitted the rule, and it was made absolute at once.

Some two weeks after this judgment was signed, an attorney, in behalf of the minor, moved the court to appoint a tutor ad hoc for her, stating that her father and tutor had departed this life, without saying when: that she was without a tutor: and that her interests required some one to act presently in her behalf. The court immediately appointed a tutor ad hoc; and, on the same day, this appeal was taken by the minor and the tutor ad hoc from the judgment ordering the mortgage to be canceled and erased.

At first we had some doubt as to the validity of this appointment; but our conclusion is, that, under the general supervisory power which the probate court has over the interests and affairs of minors, when an emergency arises which requires immediate action for the protection of the rights of the minor, the judge not. only has the authority, but it is his duty, to appoint a special tutor ad hoc to represent and act for the minor until a tutor can be appointed in the manner prescribed by law.

We are at a loss to imagine what interest or business Adam Paul had to demand the cancellation of this mortgage, nearly six years after his alleged purchase of the property. The property belonged to the minor, and not to her father; and, of course, no mortgage could ever have attached to it, in her favor, for his acts as her tutor.

The judgment is a nullity on the face of the proceedings. . It is a. serious matter to cancel and erase the tutor’s mortgage. It is the only security which the law requires of the father for his gestión as tutor and it is intended to secure the rights of the minor as fixed and established by the final account and settlement of the tutorship. It does not seem that any proof was offered: there was no trial of the rule to show cause; and it is certain no cause is shown, in the recitals of the motion, for this cancellation. If the minor’s property was actually sold, the tutor was the only person who could have received the price and his liability to her must be and remain secured by the general mortgage on all his real property.

The tutor did not ask to have this general mortgage canceled; nor was he in any way made a party to the rule. If he had sought to have it canceled he would have been required to furnish special and satisfactory security. The father, tutor of his child, is interested in seeing that the rights of the child are secured as the law prescribes. There was’ therefore, no opposition of interest between the tutor and the minor.; and this is the only contingency which authorizes the under tutor to represent and act for the minor. R. C. 0., art. 275.

The law makes it the duty, of the under tutor to see that the evidence of the legal mortgage in favor of the minor is preserved ; and his failure to do his duty, in this respect, would subject him to pecuniary responsibility for any damages that might thereby result to the minor. R. C. C., art. 278. Certainly the law never intended to give the under tutor power or authority to consent to the destroying of the evidence of the mortgage by the canceling and erasing of the inscription by which it is preserved.

If the father, tutor of the minor, was living at the time this rule was taken, he was the only person who could have represented her in that proceeding : if he was dead, it was the business of Holz, the under tutor, to have informed the court of that fact at once, and to have provoked the appointment of a tutor. In neither event was Holz capable of standing in judgment for the purposes of this rule.

The judgment appealed from is therefore annulled, avoided, and reversed : and it is now ordered, adjudged, and decreed that the rule on which the said judgment was rendered be dismissed; and that Adam Paul pay all the costs in the district court and of this appeal.


text:
    No. 7142.
    M. N. and W. B. Wisdom vs. E. T. Parker, Dative Ex. E. T. Parker, Ex., vs. M. N. and W. B. Wisdom. Wisdom, M. S. and W. B., vs. H. S. Buckner. H. S. Buckner vs. Wisdom, M. N. and W. B., Consolidated.
    A widow, wlio by aseries of acts extending through years has tacitly accepted the community, can not afterward renounce it.
    The probate court before which a succession has been opened, and is being administered, has jurisdiction, at the instance of a mortgage creditor of the succession, . to order the sale of the mortgaged property, and the sale of such property, under an order of seizure and sale issued by the probate court, is not a nullity. The order must stand as a binding decree of court until reversed by an action of nullity, or on appeal.
    Innocent third persons who purchase property at a public sale held under the decree of a court of competent jurisdiction, can not be affected by any irregularities in the decree subsequently ascertained.
    A suit for the enforcement of a mortgage debt is not a real action.
    j^PPEAL from the Fourth District Court, parish of Orleans. Houston,

      Tlios. J. Semmes for M. N. and W. B, Wisdom, appellees.

      J. Ad. Hosier, Kelly & Lazarus, and Jno. A. Campbell for H. S. Buckner, appellant.
   The opinion of the court was delivered by

Spencer, J.

John M. Wisdom was a member of the firm of Hewitt, Norton & Co., of New Orleans. He died in 1857, leaving a widow in community, and two minor children, M. N. and W. B. Wisdom. His interest in that firm was liquidated at $125,000, and in payment thereof James Hewitt, of the firm, executed two promissory notes to the order of and endorsed by Hewitt, Norton & Co., for $62,500 each, payable one in five, and one in ten years, with eight per cent interest, payable semi-annually.

To secure the payment of- these notes, said Hewitt executed a special mortgage on his Crescent Plantation, in Ascension parish, in favor of Mrs. Wisdom, widow in community and natural tutrix, and in favor of any other holder of said notes.

These notes represented community property, and were delivered to Mrs. Wisdom, who was owner of one half interest therein, and usufructuary of the other half.

The first of them was paid to her in Europe, in 1864, during her widowhood. In 1866, while still in Europe, she contracted a second marriage with M. O. H. Norton, without having previously convened a family meeting to retain her in her tutorship.

On returning to this State, in 1868, (Eeb.) she filed a petition in the Second District Court of New Orleans, in which she alleged that she was the holder and owner of the second above described note, that the maker, James Hewitt, was dead, and his succession under administration in that court by Mrs. Hewitt, executrix. She prayed for and ob- ■ tained executory process to sell the mortgaged property. The writ was issued, the property sold in March, 1868, to one Bell, for $23,500 cash, and the proceeds, less costs, paid by the sheriff to the Widow Wisdom, then Mrs. Norton, plaintiff in said proceeding.

In Eeb., 1869, Mrs. Wisdom presented a petition to the Second District Court, representing that she had contracted a second marriage as above stated in Europe, where she could not conveniently procure the consent of a family meeting to retain the tutorship of her minor children. She prayed the convocation of the meeting, and that she be retained and confirmed as natural tutrix, etc. The meeting so advised. The court fftmologated its proceedings, and decreed that she be “ retained, maintained, and confirmed as natural tutrix” of the minors. She did not renew her oath or give bond under this decree.

In March, 1869, she In her own right as widow in community with her first husband, and as natural tutrix, brought suit against Hewitt’s estate in the Second District Court, to determine the extent of lands previously sold, and for judgment against said estate for the balance due on the $62,500 note, after crediting the $23,500, proceeds of said sale.

There was judgment in her favor as prayed for, on July 1,1870.

In 1871, Bell executed a mortgage on the Crescent place, and H. S. Buckner, in 1873, as holder of the notes, foreclosed and bought the property.

In March, 1875, Wm. B. Wisdom, the younger son, was emancipated, and the mother, Mrs. Wisdom, made a formal renunciation of the community between her and her said deceased husband.

After these proceedings, the two sons, now sui juris, took a rule in Second District Court, on E. T. Parker (who had been appointed dative executor of James Hewitt’s estate) to compel him to sell the Crescent plantation to pay said note of $62,500, of which they claimed to be the owners. The court dismissed this rule. Thereupon they applied to the Fourth District Court of New Orleans for an.order of seizure and sale of said place, to pay said note. This proceeding was enjoined by Parker, executor, and H. S. Buckner intervened. The Wisdoms then took an order of seizure and sale against Buckner, as a third possessor. Buckner enjoined, and Parker, executor, intervened. These executory proceedings and injunctions were all consolidated and tried together. There was judgment maintaining the process and disallowing the injunctions. Buckner and Parker appeal.

As a preliminary to the discussion of the questions involved in this litigation, and in order to disembarrass the case as much as possible, we will here state that we shall treat the Widow Wisdom as a partner in community with her deceased husband, as owner in her own right at his death of one half of the property, and as usufructuary of the other half. It would be a useless consumption of the time of this court to enter upon an argument to show the nullity of her pretended renunciation. The bare statement of the facts makes it palpable.

The pretensions of M. N. and W. B. Wisdom must fail, unless it be held that the decree of the Second District Court, ordering the seizure and sale of the mortgaged property, was an absolute nullity, for want of jurisdiction.

The eighth section of the act of March 29,1865, relative to district courts for the parish of Orleans, and under which that court was organized, enacted “that the Second District Court shall be strictly a nrobate court, and shall have exclusive jurisdiction of all succession and probate causes, and all appointments that may be necessary in the administration of estates, all matters relative to minors, to persons interdicted, and to absentees, shall be made and carried on in said Court.”

When we turn to the Code of Practice to ascertain in what “ probate jurisdiction” consisted, we find that by Art. 924 probate courts have exclusive power,

5. “ To grant orders to make inventories and sales of the property of successions which are administered by curators, executors, etc.”

13. “ To decide on all claims for money which are brought against successions administered by curators, executors, etc., and to establish the order of privilege and mode of payment.”

Art. 983. “ All debts in money which are due from successions administered by curators, executors, etc., shall be liquidated, and their payment enforced by the court of probate of the place where the succession was opened.”

Art. 990 makes it “ the duty of the several judges of probate, on' •the application of the creditors, or any creditor,” to order the sale of ■“ so much of the property of the said estate as is necessary to pay the •debts, etc.”

Art. 991 makes it their duty “ on the application of the creditors, ■or any creditor thereof, whose debt shall not then be due, to sell so much of the estate as will be sufficient to pay the claim or claims of the •creditors who shall make the application,” on terms of credit corresponding to the maturity of the claims.

Art. 992 declares these provisions applicable to all successions accepted with benefit of inventory, and to all successions administered by ¡administrators, etc.

It is conceded that the succession of Hewitt was opened in the parish of Orleans, and was being there administered in the probate court thereof, to wit: the Second District Court.

Under the statute of 1865, and the articles of the Code of Practice •above quoted, it is therefore undeniable that the Second District Court -was the tribunal before which the law had directed “ all debts in money of the succession of Hewitt to be liquidated,” that it was the tribunal •“to decide on all claims for money brought against said succession,” that it was the tribunal to “ enforce their payment,” and to order “ the ■sales of the property” thereof to pay its debts, that this order of sale could be granted on the application of any creditor, in order to have property sold to pay his debt.

Union Bank vs. McDonogh, 7 A. 232.

Art. 87, C. P,., provides that “in order to ascertain whether a judge •be competent or not, three points must be taken into consideration :

1. The object or amount in dispute.

2. The person of the defendant.

3. The place where the action is to be brought.

Art. 88. “ To determine on the competency of a judge as relates •to the object, or amount in dispute before him, it is necessary to examine what are Ms powers, what is the nature of the cause, and what is the ■amount of the same.”

Let us test the jurisdiction, the competency of the Second District ■Court, by these rules.

There is no dispute as to its jurisdiction of “ the person” of the defendant, i. e., of the succession of Hewitt, nor is there any controversy ¡as to “the place where the action is to be brought. There remains -therefore to consider” the object or the amount in dispute.

We have seen “ what are the powers” of the probate courts. It is “to liquidate and enforce the payment” of money debts due by successions — “to decide on all claims for money” brought against them, “to order the sale of their property” on “the application of the creditors Or of any creditor” thereof, and to establish the order of privilege, and the mode of paying. We find, therefore, the most ample power in the-Second District Court to direct by its decree the sale of the property of the succession to pay the debts thereof. We find that “the nature of the cause” brought before it was to have “ a claim for money,” founded-on an authentic contract of the deceased, enforced and paid by a sale of. his property, and that its “ amount” was within the cognizance of the court.

The substance, the gist, of the plaintiff’s demand, the result sought, was the enforcement of a money demand against a succession, by a sala of property specially mortgaged and pledged to secure it. The court, had the power, the jurisdiction, to accomplish and decree that result, that end.

The essence of the decree rendered was that the Crescent plantation, the property of the succession, should be sold by the sheriff to pay the special mortgage debt held by plaintiff. This much the court clearly had the power to do. If the procedure, the pleadings and methods, pursued to obtain this decree were irregular, or illegal, the decree itself was not thereby rendered void. It might so vitiate the decree as to-render it voidable by appeal or action of nullity, but until so set aside it must have effect. Nor can we see that the fact that the plaintiff may have demanded, and obtained incidentally, things to be done which she. had no right to have done, can destroy the effects of the decree, as to those matters properly embraced within it. Thus if it be conceded that the court had the power to order the sheriff to sell the property which was in its own custody, but had no right to order him to seize it,, we are at a loss to see why the sale should be rendered null and void by this improper but harmless procedure, utile per inutile non vitiatur. If a court decree more to be done than it had a right to decree, it does not necessarily follow that its decree is void as to the things which it-properly and lawfully ordered.

The case of “ Bigelow vs. Forrest,” 9 Wallace 339, cited and relied, upon by counsel, is, we think, strongly illustrative of this point. In that case the inferior court under the confiscation acts had condemned and sold the fee simple of certain lands of Commodore Forrest. After his-death his heir brought suit against the purchaser, who defended on the ground that the decree ordered all the estate of Forrest to be sold, and that although the decree might be erroneous«it was not void. Held that the decree transcended the jurisdiction of the court, and was void, so-far as it exceeded, the authority given by'the confiscation acts. But the decree was valid so far as it ordered the sale of the life interest. So we-, say, admitting-for argument sake that the judge illegally directed the seizure of the property, that could not strike with nullity the sale which he properly ordered.

To the extent that the decree exceeds the jurisdiction, it is without effect. If after eliminating from the decree its illegalities there remains the recognition and the order for the enforcement of a substantial legal right, why should it be null and void as. relates to that right ? In the ease before us why should an order to sell succession property to pay succession debts be stricken with nullity simply because the court directed its executive officer to take the real estate to be sold into his nominal custody ? More especially when the property thus directed to be taken by the court was already in its own custody as a court of probate ? -

It can not be that our estates depend upon such slender threads as these.

It is manifest that the Second District Court had jurisdiction of the parties, and of the subject matter of the suit. Says the Supreme Court of the United States in Thompson vs. Toulme, 2 Pet. 166 : “ The general and well-settled rule of law in such cases is, that when proceedings are collaterally drawn into question, and it appears upon the face of them that the subject matter was within the jurisdiction of the court, they are voidable only: the errors and irregularities, if any exist, are to be corrected by some direct proceeding, either before the same court to set them aside, or in an appellate court.”

But it is said that the executory proceeding taken in the Second District Court was a real action, and that by the express terms of the second clause of Art. 983, C. P., “ Actions of revendication and other real actions” shall be instituted in the courts of ordinary jurisdiction.”

A claim for money secured by mortgage is not a real right, a jus in re. It is a jus ad rem, giving an action in rem. The action is in rem, against the thing; but so are all proceedings in probate courts for the sale of real estate. Such proceedings are against the property, not the person or heirs of the debtor. “ In decreeing the sale of real estate of a deceased person, the court acts in rem.” Freeman on Judgments, see. 608. See, also, Wyman vs. Campbell, Lee vs. Campbell, Couch vs. Campbell, 6 Post, (Ala.) 219, 249, 262. where it is said “ the proceedings of the' Orphans’ Court are in rem against the estate of the intestate, and not in personam.”

And this is equally true of the probate courts in this State. The proceeding is against the property, not the person of the debtor, the property being in the custody of the court through its officers. To say, therefore, that Art. 983 forbids actions in rem to be brought- in probate courts, would be to strip them of nearly the last vestige of their jurisdiction in succession matters.

We hold, therefore, that the decree of the Second District Court directing the seizure and sale of the Crescent plantation, at the suit of Mrs. Norton, in 1868, was not a nullity. That it was the decree of a court having jurisdiction of the subject matter, and of the parties; and that any irregularities or illegalities in the mode of obtaining that decree could only be corrected by appeal, injunction, or action of nullity.

It is elementary now, that innocent third persons purchasing property under such a decree are protected, and can not be affected by its subsequently ascertained irregularities. Thompson vs. Toulme, 2. Pet. 166 ; Lalanne vs. Moreau, 13 A. 437 ; 10 Peters 449 ; 18 How. 497 ; 7 R. 66; 2 A. 468; 14 A. 154; 18 A. 485.

Mrs. Norton had possession of the note, was the owner of one half of it, and had been usufructuary of the other. It was endorsed in blank and secured by mortgage in favor of any holder. She alleged her ownership, and the decree recognized it. The note being payable to bearer, a payment to her, made bona fide, would have discharged the debt. R. C. C. 2145, No. 1. If her children have any rights, it is against her, for misappropriation of their funds. They have made no effort to obtain their dues from her; have not called her to account as their tutrix. Who knows but that on a settlement she would owe them nothing, or, at least, much less than they are claiming here ? There is little equity in their demands ; it is even questionable whether she was not absolute owner of the note. She certainly owned one half of it, and it might be argued very plausibly that under Act. 549, R. C. C., her usufructuary right carried with it the ownership, as the thing subject to the usufruct was of a nature not to be used without being converted into money or consumed. See Marcadé, vol. 2, p. 461-2. Demolombe, Verbo Usufruct ; p. 235, sec. 287.

Under the view we have taken, it is perhaps necessary to decide whether the Second District Court under the act of 1865 could legally and technically order the seizure and sale of mortgaged property in its custody. Certain it is, there is no law, no statute to the contrary.

We have examined all the cases cited, for and against the proposition. In Lowry vs. Erwin, 6 R. 207, the court says that courts of ordinary jurisdiction are without authority, and intimates that courts of probate are equally so.

In Collier vs. Stansborough, 6 R. 234, it is held that courts of ordinary jurisdiction can not issue the writ against successions, and intimates that the probate courts alone have the power.

In Citizens’ Bank vs. Buisson, 7 Rob. 507, the court, founding itself on the charter of the bank, recognizes the right of courts of ordinary jurisdiction to issue it.

In Union Bank vs. Marigny, 11 R. 211, on the strength of the bank’s ■charter, the same conclusion is reached, the court saying that probate courts had not the power. But this was obiter.

In Boguille vs. Faille, 1 A. 205, it was finally decided and has ever ■since been agreed to, that courts of ordinary jurisdiction have the power, but it is not denied to probate courts.

In Mason’s Ex. vs. Fuller, 12 A. 68, it is said that the creditor can apply to the probate court for an order of seizure and sale. In Williams vs. Hunter, 13 A. 477, a similar doctrine is announced. In Vincent vs. D’Aubigne, 19 A. 528, which was an action to annul a sale made under executory process from Second District Court (probate), the question was not raised or decided.

In State vs. Judge Third District Court, 20 A. 311, the court decided "that under the charter of the Bank of Louisiana courts of ordinary jurisdiction could issue the writ, and it is intimated that probate courts can not, but this last was obiter.

In Graham vs. Markey, 22 A. 267, the court perpetuated an injunction against an order of seizure and sale, issued by the Second District Court against succession property, citing as authority Bank vs. Marigny, 11 R. 211, and State vs. Judge Third District Court, 20 A. 311.

We thus see, that while it is now settled that courts of ordinary jurisdiction have the power to issue writs of seizure and sale against succession property, there is but one solitary ease, that of “ Graham vs. Markey,” 22 A. 267, where'the court has directly decided that courts of probate have not the power.

The decision in that case is very brief, and not satisfactory. The weight of authority and of reason seems to be against its correctness. Why should not that power exist in courts created for and specially ■charged with the settlement of successions; with the ascertainment, liquidation, and 'enforcement of money demands against them ; with the ■classification and ranking of such debts, and into whose custody the law places the property of estates ? True, the law does not expressly grant the power, nor does it any where forbid it to them. No more does it expressly grant it to courts of ordinary jurisdiction in matters of succession. Philosophically, it would be more rational to vest such power in the probate courts, which are alone charged with the settlement of ■successions, thereby avoiding the confusion which inevitably results from the intervention of the ordinary courts, which have no power to rank and classify the debts of successions. 11 R. 77.

The judgment below is erroneous. It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed; and it is now ordered and decreed that the executory proceedings sent out by M. N. and W. B. Wisdom herein are set aside, and the injunctions taken against said proceedings by H. S. Buckner and E. T. Parker, executor, are hereby maintained and made perpetual, and that M. N. and W. B. Wisdom pay the costs of both courts.

On Application fob Rehearing.

We have been urged to reconsider the grounds of our former opinion in this case.

In that opinion we announced the doctrine that a mortgage did not create a jus in re, but only a jus ad rem, giving an action in rem. We did not then state the grounds or authority for that enunciation. Its correctness is strongly assailed by the plaintiff’s counsel, and we shall therefore proceed to state more in detail our views. The point is one of some moment in this controversy ;.for under Art. 983 of the Code of Practice, “ actions of revendication and other real actions which shall be instituted against estates, may be brought before ordinary tribunals,” but “ all debts for money * * shall be liquidated and their payment enforced by the courts of probate, etc.” It should be noted that this article does not say thati! real actions” must or shall be brought before the ordinary tribunals, but may be so brought. So that its language does not exclude the idea that a real action, having for its object the enforcement of “ a debt for money” (if such an action can be real), can lawfully be brought against successions in the probate courts. Indeed, our decision in this case was, that an action to enforce a mortgage against a succession (and plaintiff’s counsel insists that it is a real action) may be brought either in the probate courts or in the ordinary courts. So that even if such action be real, our decision is not in conflict with that article.

But is an action to enforce a debt secured by mortgage a real action ? Article 12 of the Code of Practice decisively answers this question. It says, “ actions for the recovery of a movable, or of a sum of money, though accompanied with a mortgage, are not real actions.”

In the face of this provision, it would be useless for us to discuss the conflicting views of the French jurists upon the question of whether a mortgage creates a jus in re or jus ad rem immobileur. We will state,, however, that to our minds the argument of Marcadé in favor of the latter proposition and against the former is quite conclusive, and we think is in harmony with our Code. See his work, v. 2, p. 319, et seq. We understand a jus in re to be a right to some of the elements or dismemberments of property in a thing. Now the Civil Code in treating of this right Of property in things, divides it into three elements, the use, the enjoyment, and the disposal: usus, fructus, and abusus. Under the first and second it classes use and habitation, usufruct and real servitudes, and under the third naked ownership. This classification exhausts the right of property in things, and, we think, includes all the jura in re. No amount of ingenuity can bring the rights of a mortgagee under either head of this classification.

We are referred to Art. 3282 of the Revised Civil Oode, as containing the declaration that a “ mortgage is a real right on the property 'bound for discharge of the obligation.”

That article is the reproduction of Art. 3249 of the Oode of 1825, •which was in force when this controversy originated. Art. 3249 says, “ The mortgage is a legal right on the property,” etc. The word “ real” •seems to have been a misprint for “ legal.” But even Art. 3282 R. 0. 0. does not say that a right of mortgage is a right in the property, but a ■right on it, that it is act rem, not in re. However this may be, the Oode of Practice is positive that an action to enforce a mortgage debt is not a real action and therefore, even if Art. 983 O. P. were prohibitory of 'bringing real actions in probate courts, it would not prevent the enforcement of mortgages in such courts. We understand the Oode of Practice in speaking of the “ hypothecary action” as “ a real action,” (Art. 61) to mean that it is an action against the thing — in rem, as contradistinguished from actions against the person — in personam. In the “ hypothecary action” proper, there is no pursuit of the person. The thing mortgaged is the debtor, and the action is directed against it. In this sense, the •action is real.

Rehearing refused.


text:
    No. 5744.
    Maurice Abrams & Co. vs. Union National Bank.
    Where a bank certifies as good a cheek on it to the order of a certain payee, and the check is subsequently altered by the drawer so as to make it payable to ■ bearer, and thus altered is paid by the bank to some unknown party before the original payee is advised of the certification, and before any third person has acquired an interest in the check, the bank can not be held for any loss to others caused by paying the cheek, because of an agreement between those others and the drawer, to which the bank was not privy.
    A PPEAL from the Superior District Court, parish of Orleans. SawkO. ins, J.

      Lacey & Butler for plaintiffs and appellants.

      Carleton Sunt for defendant and appellee.
   The opinion of the court was delivered by

Spencer, J.

Plaintiffs’ petition alleges in substance that 'on the 25th of January, 1875, W. Jasper Blackburn was owner of four State warrants •aggregating $9579 25. That about said date said warrants were robbed or stolen from Blackburn, and shortly after came into possession, of Barnett & Cammack, who placed them in Abrams’ hands, as broker, for sale; that Abrams sold them to Moore, Janney & Hyams for $2514 55 that with the view of guarding against loss or injury from want of proper indorsement of said warrants there was an understanding and agreement with Barnett & Cammack — to whom Abrams paid proceeds of sale, less $135, by certified check on Mechanics’ & Traders’ Bank— that said Barnett & Cammack would, in their settlement with the party for whose account they were disposing of said warrants, give their check to the order of O. S. Blackburn, to whom or to whose order as petitioner then believed, said warrants were also payable; that Barnett & Cam-mack deposited the check received by them from Abrams in the Union National Bank, and upon the strength of said deposit the Bank certified as good their, Barnett & Cammack’s, check upon itself for $2322 43 payable to the order of C. S. Blackburn; that afterward the check of Barnett & Cammack was improperly altered so as to make the same payable to bearer, and that in its altered form the said check was presented, and paid by the Bank, not to C. S. Blackburn, but to some other wholly unauthorized person. It is further alleged that W. Jasper Blackburn, the true owner of said warrants, subsequently recovered them from Moore, Janney & Hyams ; that had the Union Bank refused to honor the altered check, as it. should have done, then plaintiffs could have saved themselves by reclaiming their check given to Barnett & Cammack, or its amount as represented by the said altered check, etc.

The Bank excepted that plaintiffs’ petition did not disclose any legal cause of action. This exception was sustained, and plaintiff appeals.

There is no error in the judgment. There is no pretense of allegagation that the Bank knew of, or was privy to the alleged agreement or understanding with Barnett & Cammack, to draw their check to order' of C. S. Blackburn. There is no intimation that Blackburn ever knew or assented to the certification of the check in his favor, or ever held it for a moment. See Morse on Banks and Banking, p. 287. On the contrary, the allegation is that Barnett & Cammack, who held the check when certified, themselves altered it before parting with it. What right had the Bank to object to the change, when made by the drawer" before any third person had acquired any rights in or under the check? The Bank knew nothing of the “arrangement” between plaintiffs and Barnett & Cammack, and therefore had no right to suppose that the latter were doing a wrong. If I draw my cheek on the Bank to the order of another, and myself procure its certification, until I part with the check, or, certainly, until the payee has consented to accept the stipulation in his favor, I may withdraw it, and the Bank could not refuse to cancel or redeem the check in my hands. Like any other stipulation pour autrui, until accepted it may be revoked.

It was of the essence of plaintiffs’ case that they should have alleged that the Bank at least knew of the “arrangement” or “agreement” referred to. Without such allegation there is no legal cause of complaint against the Bank — there was no fault on its part which rendered it liable to plaintiffs.

The judgment is affirmed.


author: Mare, J.

text:
    No. 5770.
    Thomas W. Bothick vs. Society Temine Dereche.
    A creditor of a corDoration suing to forfeit its charter on the ground of its insolvency must, before he can demand the provisional appointment- of a receiver, or judicial sequestrator, under section 688 of the Revised Statutes, prove that the corporation is the special kind of corporation subject to a forced liquidation, under that section.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Hornor & Benedict for plaintiff and appellant.

      Braughn, Buck & Binkelspiel for defendant and appellee.
   The opinion of the court was delivered by

Mare, J.

Thomas W. Bothiok obtained a judgment against the Society Temine Dereche, a corporation established by act under private signature, recorded in the mortgage office twenty-seventh November,. 1857, as alleged in the petition. On this judgment execution issued, which was returned by the sheriff “ no money or property found,” after demand made of defendant and of plaintiff. Thereupon this, suit was brought to have the forfeiture of the charter declared; and to have the affairs of the corporation liquidated, as provided by section 688 of the Revised Statutes, which is but the re-enactment of section six of act No, 131 of 1855, p. 184.

Plaintiff also prayed for and obtained a rule nisi, on affidavit, to show cause why the assets, rights, credits, claims, etc., belonging to the society, of whatsoever nature, should not be judicially sequestered during the pendency of this suit, and why a receiver or judicial sequestrator should not be appointed to take charge of the same.

There was no answer or other pleading on the part of defendant. The rule was tried, however; and the result was a judgment discharging-it, and dismissing the suit, for reasons orally assigned. Plaintiff appealed from this judgment; and he has filed a brief. Defendant has filed no brief; and the case was submitted without oral argument.

The Legislature of 1855-passed several acts relative to corporations, which were re-enacted in the Revised Statutes. Act No. 131 is entitled “An act for the organization of corporations for works of public improvement and utilityand section six of this act, which is section 688 of the Revised Statutes, provides “that they,” that is, corporations organized under this act, “shall forfeit their charter for insolvency, evidenced by a return of no property found on execution ; and in such case it shall be the duty of the district court, at the instance of any creditor, to decree such forfeiture and to appoint a commissioner for effecting the liquidation, whose duty it shall be to convert all the assets of the company, including any unpaid balances due by stockholders on their shares, into cash, and to distribute the same under the direction of the court among the parties entitled thereto, in the same manner, as near as may be, as is done in cases of insolvency of individuals.” This is the law under which plaintiff proceeded.

The succeeding act, No. 132, is entitled “ An act for the organization of corporations for literary, scientific, religious, and charitable purposes.” This act contains no provision for the forced liquidation of corporations organized under it. The title of act No. 132 is the heading of the first division of the title “ Corporations,” in the Revised Statutes; and the heading of the second division is, “ Organization of Corporations for Works of Public Improvement, and for other purposes.” It is in this division, under this heading, that section 688 is found.

The Legislature of 1855 passed another act, No. 341, p. 485, entitled “ An act to regulate corporations generally.” This act is re-enacted in the Revised Statutes; and it is found under the division of the title “ Corporations ” the heading of which is “ Corporations generally.” Section seven of the act is section 731 of the Revised Statutes; and it is as follows:

“Whenever the charter of any corporation in this State shall be decreed forfeited by any competent court, the district attorney of the district shall forthwith inform the Governor of the fact, who shall thereupon appoint a liquidator to take charge of and liquidate the affairs of the corporation, as in case of insolvencies of individuals. In case of death * * * the Governor shall fill the vacancy * * * This section shall not apply to banking or other corporations whose liquidation is otherwise provided for by law.”

The charter of this company was not offered in evidence; nor is there any thing in the pleading which indicates the purposes for which the corporation was organized. It may have been for some literary, or scientific, or religious, or charitable purpose, and in that event it would not be subject to the provisions of section six of act 131, of 1855, section 688 of the Revised Statutes, because that law relates to corporations for works of public improvement and utility, not to corporations organized for literary, scientific, religious, and charitable purposes, as authorized by act No. 132 of 1855. - .

If the purposes of this corporation were such that it is ndt subject to section 688 of the Revised Statutes, and the law has not otherwise provided for its liquidation, it maybe subject to section seven-of the act No. 341 of 1855, section 731 of the Revised Statutes. • • • ,

Nothing was before the court except the question raised by the rule nisi, taken on the corporation, to show cause why its assets should not be judicially sequestrated, and why a receiver should not'be appointed.

We do not think the allegations in the petition authorized the court either to order the judicial sequestration, or to appoint a receiver;'but we think the plaintiff had the right to have the petition put.at '¡issue, and to bring his ease within the law under which he proceeded, by proof, if he could do so. If the corporation should be proven to be such as is subject to the forced liquidation provided for in section 688, Revised Statutes, it would be the duty of the court to appoint a commissioner to effect the liquidation; and this commissioner would, necessarily, have the custody of the property and effects of the corporation.

The judgment appealed from was correct in discharging the rule, because there was nothing before the court to authorize the sequestration or the appointment of a receiver. It was erroneous in dismissing plaintiff’s suit. ‘

It is therefore ordered, adjudged, and decreed that the judgment of the district court in so far as it discharged the rule ; be affirmed that in all other respects it be annulled, avoided, and reversed; and that the cause be remanded for further proceedings according to law, the appellee paying the costs of the appeal; the costs in the district court to abide the final result.


text:
    No. 5783.
    City of New Orleans vs. Wilmot, Agent.
    The. city oí New Orleans has no authority to impose wharfage and levee dues on vessels moored at a point within her corporate limits, at which she has constructed no work and expended no money for the use or convenience of vessels.
    APPEAL from the Second Justice of the Peace, parish of Orleans. Holmes, J.

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

      J. Q. A. Fellows and Bayne & Benshaw for defendant and appellee.
   The opinion of the court was delivered by

Mare, J.

This a suit for the tax, under an ordinance of the city of New Orleans, on coal boats, for wharfage and levee dues; and the only question is as to the legality of that tax.

The coal boats, with their cargoes, came from other States, principally from Pennsylvania; and they were moored in the river in front of the property of Fortier, in the Sixth District of the city, at a distance of several miles above the wharves and landing-places at which cargoes are received and discharged. At this locality, the city.has .constructed no works, made no landing-place, expended no money. The coal is neither sold nor discharged there; and all that is required is suitable check-posts, to which the boats may be fastened, so that they may be .safely kept, where they in no manner obstruct navigation, until sales are effected, when they are removed, and taken elsewhere for discharge and delivery. The necessary check-posts have been and still are furnished and planted by Fortier, the front proprietor.

The tax is two cents a foot on each boat for fifteen days, and the ■aggregate amount on the fleet of coal boats usually moored in this vicinity would be several thousand dollars annually.

By the acts of Congress under which Louisiana was admitted into the Union the Mississippi river was declared to be a public highway, «' and forever free, as well to the inhabitants of said State as to the inhabitants of other States and the Territories of the United States, without any tax, duty, impost, or toll therefor, imposed by said State: and these provisions shall be considered, deemed, and taken as fundamental conditions and terms upon which the said State is incorporated in the Union.” Act of 1812, section one. 2 Statutes at Large, p. 703; Act of 1811, same vol., p. 642.

The Civil Code is to the same effect. It declares the navigable waters of the State public highways ; and gives to every one the right to use the banks freely, to land his vessels there, and to make them fast to the trees which are there planted. E. C. C. articles 453, 454, 455.

This whole subject was considered by the Supreme Court of the United States, in Cannon vs. the City of New Orleans, 20 Wallace, 577, as it has been in other cases, in that court and in our courts. The doctrine is plainly laid down, and it is perfectly settled, that the front proprietor, whether an individual or a municipal corporation, may construct wharves and landing-places for the convenience and safety of vessels in receiving and discharging cargoes; and if the owners of such vessels choose to use such wharves and landing-places, they are bound to pay reasonable compensation for such use. The only ground on which any sum can be claimed by the front proprietor from the owners of vessels for mooring at the banks of public navigable waters, and there discharging and receiving cargoes, is that such proprietor by the expenditure of money and labor has constructed and maintains works which facilitate the discharging and receiving of cargoes, and afford to vessels the means of mooring and remaining in security.

The proof is clear, in this case; that the city- hasdone no work, has •expended no money, at the place at which these coal boats were moored, to authorize any tax on them, or to require any pay or compensation for the use by them of. the river or its banks. • •...• '

We agree' with 'the justice who tried this casé, that the ordinance which subjects to wharfage and levee dues vessels lying at the place at which these coal boats were moored, is the imposition of a tax without any corresponding benefit in the way of facilities for landing. Such •a tax is beyond the power of the municipal government; and it can not be enforced.

The judgment appealed from is therefore affirmed, with costs.