text:
    No. 1421.
    Odile Gauthier, Wife of A. Maraist, vs. Gabriel Gardenal, Sheriff, et als.
    The defendant in an injunction is entitled to have a bond executed in his favor and signed by plaintiff, or by a duly authorized agent and attorney in fact.
    An attorney at law, unless specially authorized, or unless his client is absent, lias no authority to sign the bond in an injunction suit for his client.
    APPEAL from the Nineteenth District Court, Parish of St. Martin. Mouton., J.

      D. W■ Voorhies for Plaintiff and Appellee.

      O. H. Mouton and E. Simon for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

During the pending of this appeal the plaintiff died and her heirs have been duly made parties.

August Maraist, the husband of the deceased plaintiff in injunction, was indebted to the widow and heirs of Charles St. Germain, and executed a mortgage on. certain property to secure said indebtedness. Aug. Maraist subsequently made a dation en payment to his wife of this mortgaged property. The widow Gauthier obtained a judgment against Maraist and the mortgaged property was seized and advertised to be sold to satisfy the judgment. Mrs. Maraist enjoined the execution of the judgment.

The plaintiff in execution and defendant in the injunction moved to dissolve the same for several irregularities in the injunction bond.

The'motion to dissolve was overruled, and on the merits there was judgment for the plaintiff in injunction, perpetuating the same.

There is only one ground alleged in the motion to dissolve that requires notice. The others are without weight and are untenable.

The injunction bond was signed by plaintiff’s attorney. She was a resident of and present in the parish of St. Martin and no authority is shown by which the attorney was empowered to sign the bond for her.

Art. 804 of the Oode of Practice requires the 'plaintiff in injunction to annex to his petition his obligation in favor of the defendant for such sum as the court may determine after having examined what injury the defendant may sustain'from such injunction.

The bond is not the obligation of the plaintiff in injunction. She did not sign it or authorize any one to sign it for her. She was not an absentee. The defendant had the right to require a bond from the plaintiff or some one duly authorized to execute it for her. “The-attorney at law could only execute the bond in the absence of his client, and the client in this case was not absent.” Bank of La. vs. Wilson, 19 An. 3; Goodin and Husband vs. Allen, 12 An. 448.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered and decreed that the injunction herein be dissolved and set aside, and the defendant in injunction do have and receive judgment against plaintiff in injunction for 10 per cent, per annum on the amount of the judgment enjoined and $200 special damages as attorney fees and costs.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 1422.
    Mary Craig vs. Bernice M. Lambert.
    Testimony under commission must be reduced to writing by the witness himself notary or commissioner, or some disinterested person. The court will not assume that one who, some time prior, rendered services in the nature of agency to one of the parties to the suit, was the agent at the time he executed a commission issued to him as notary public, authorizing him to receive the deposition of witnesses.
    A plaintiff may obtain an injunction to maintain the status quo of the rights she claims during the pendency of the suit without having to obtain an order in open court, authorizing the filing of the petition as part of the suit.

      The supplemental petition for an injunction is properly allowed if it does not change the issues.
    Replications are not permitted by our law, and all averments in the answer are open to every species of attack without special plea.
    A defendant in an action involving questions of possession, having filed an exception, which was by the courts referred to the merits without prejudice, and thereupon in compliance with the rule of court filed his answer, in which he reserved his grounds of exception, will not be considered as having waived them.
    He can not be aggrieved by the court’s action.
    The inquiry being one principally of possession, the court limits the decision to the question of possession.
    PPEAL from the Eleventh District Court, Parish of Acadia. Lewis, J.

      E. L. Wells for Plaintiff and Appellee.

      K. Baillio for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff acquired the N. E. quarter of Sec. 27, T. 10, Range 1 west, from the State of Louisiana, and holds under patent dated May, 1872.

The remainder of the section was acquired about the same time by her father and brothers, who afterward sold their quarters of the section to her.

The patents and the deeds of sale of the land to plaintiff were recorded in the office of the clerk and ex-officio recorder in March, 1884.

In 1881 the sheriff of the parish of St. Landry sold the section at tax sale for taxes of 1877 and 1878, due by plaintiff, to Thomas Rice.

The latter sold it to plaintiff in 1882.

She claims upon these titles and alleges actual and peaceable possession of the land during more than ten years [just preceding this suit, and that the defendant, without the least right, claims the ownership of the property.

The object of this action is to maintain her alleged possession and to compel the defendant to assert or disclaim title.

The defendant interposed a peremptory exception of no cause of action upon the ground that the plaintiff is not in possession of the property.

He alleges that his possession as owner is actual, and that he has been in possession several years, and asks that the issue of possession be decided preliminarily.

The exception was referred to the merits without prejudice. The defendant reserved his exception in his answer, and alleged that since November, 1876, he and his authors have owned and have been in possession of the property described in plaintiff’s petition, in good faith, by legal and valid title acquired by him and his authors by mesne conveyance derived originally from a tax sale made in November, 1876.

The plaintiff, in her plea in replication, averred the nuility of the tax sale, and alleged that the property had never been legally assessed; that it had never been seized, and no curator ad hoc had been appointed by^the court to represent her and the other owners who were non-residents of the parish, and that no notice had been given; that the tax deeds do not show the amount of State or parish taxes claimed as due the State.

Plaintiff alleges that the defendant had notice of the nullities she pleads; further that he has acquiesced in her possession by consenting that her tenant should remain in possession of the property.

She prays to be quieted in her title and possession.

Some time after, the plaintiff filed a second petition in the cause, setting forth that the defendant, with the fraudulent intent of depriving her of her possession, entered upon the land described in his exception and answer, in the absence of her tenant in December, 1890, and, with a number of laborers, constructed a temporary wire fence.

She reiterates that she had possession at the time, and alleges that the defendant is a trespasser.

She prayed for an injunction prohibiting the defendant from trespassing.

The writ was issued.

The defendant filed an exception to the supplemental petition on the ground that it was improperly allowed at chambers, and that it was not timely presented.

In the alternative, in case the court should overrule the exception, he prayed for a dissolution of the injunction, with damages.

In support of their 'respective tax title, plaintiff and defendant plead prescription; the former pleaded the prescription of three, five and ten years, and the latter of three and five years.

The plaintiff recovered judgment, quieting her in her title as owner and maintaining her in the possession of the property.

The defendant has reserved several bills of exception.

The first:

That the deposition of three of the wituesses was taken before a notary public, who was, the defendant alleges, the agent of plaintiff at the time of the execution of the commission.

The acts of agency consisted in addressing several letters of inquiry about the claims made to the land in opposition to plaintiff’s title.

It is not proven that this notary was the appointed agent of the plaintiff.

We are referred to several decisions maintaining that the deposition of a witness must be reduced to writing by himself, or by an indifferent person, and that it is inadmissible if drawn up in the handwriting of the party or his counsel.

This is correct. A counsel or an agent is incompetent to execute a commission under which witnesses are examined in the case of the client or principal.

In the pending case there was no well defined agency at any time.

The acts of inquiry which impressed certain witnesses for defendants as acts of agency were not of a date subsequent to 1889.

The commission under which the said witnesses were examined was executed in 1891.

We will not assume that the notary was in any respect interested, and that as such his acts in executing the commission in 1891 were invalid.

The second:

Sets forth grounds against consideration of the allegations of the amended petition for the reason that the supplemental and amended petition was granted in - chambers, in vacation, and was never subsequently allowed by the court, except upon the trial of the case.

The issues are limited to the title and possession of the property and are fully set forth in the pleadings, without reference to the petition to which objection is urged.

The object of the petition was to obtain a writ of injunction as ancillary to the original suit.

The third:

The bill reserved to the court’s ruling in admitting testimony, defendant contends, is not admissible under the plea in the replication filed.

The replication contains a plea of general denial and other allegations of nullity of defendant’s title.

Without the plea as filed the testimony was admissible.

With it, the issues are clearly presented.

No advantage to the prejudice of the defendant is alleged nor does it appear that there was surprise.

The last bill was reserved to the refusal of the judge a quo to permit the witness to state what costs were incurred by the tax collector in serving notices on the tax debtors in the advertisement of the sale of the property and the fee of the curator ad hoc.

The taxes were for the year 1875.

The property, described in each deed, was adjudicated for the sum of $81.

Counsel for defendant states that the object of this testimony “was to show that the sum mentioned in the tax deed was due for the taxes and costs at the time of said sale.”

The amount for costs is generally limited.

After having deducted the costs as per fee bill the remainder shows amount charged for costs not fixed by law.

The issues are before the court without the evidence excluded.

Possession: The question of possession is the most important issue of the case.

If not all, nearly all the evidence relates to the fact of possession, and the argument of each counsel was taken up mostly in presenting the respective claims of possession.

The exception filed in which the issue of possession is set forth will be considered separately and independently of the other issues, although referred to and considered part of the merits.

The reference gave no ground for complaint, as the right to atrial “ of said issue of possession before he be called upon to admit the alleged slander or be required to sue” was referred “without prejudice.”

In cases such as the one at bar the defences may consist (1) of a denial of plaintiff’s possession; (2) a denial of the slander, and (3) an admission of the slander and claim of title. The issues in each are distinct.

In the instant case the defendantrelies on the possession he claims, and which he has pleaded as an independent issue.

After special reservation of right to a trial of said issue he avers better title in himself.

With reference to possession plaintiff rests her claims to the property upon a written lease dated the 9th May, 1887, to J. B. Bernard, lessee.

This lease was renewed for one year, with privilege of renewal on the 5th day of July, 1890.

In 1883 this property, acquired byD. Webster on November 28, 1876, at tax collector’s sale, was sold to J. B. Bernard, who became plaintiff’s lessee of the property in 1887, as just mentioned.

The purchase price which the said Bernard promised to pay was represented by a promissory note made by him for the sum of §640, to be paid when he, the purchaser, became satisfied of the validity of the title.

He took possession and continued in possession until 1887, at which time he chose to become plaintiff’s lessee.

In December, 1888, he sold the'said lands to W. W. Duson, to be paid by the return of the note he had executed in favor of D. Webster, his vendor.

In June, 1889, Duson, the purchaser, sold the property to James A. Williams, and on the same day the last named purchaser sold to the defendant.

These deeds of sale were duly recorded. The said lease to Bernard was not recorded. The title deeds of the plaintiff were recorded in the parish of St. Landry, in which the said lands were situate at the time.

Bernard, the lessee, with reference to possession, testifies that he had heard “the Craig land title was not good, and I went to Mr. Duson and he told me that the title was good;” further, “ I will sell you this land and I will get Miss Craig to give me a quit claim of her title; if I can’t get it you can return the land to me; a few years after he told me he could not get it and I returned the land to him.”

“ I rented this land from her to use as pasture.”

“ I think I fenced it in. 1883 and took it off in 1890, last spring.”

The pending suit was filed in December, 1890, within one year after the said Bernard, lessee, had removed his fence; and within a short time after said lessee had renewed the lease with plaintiff.

It is in place to state that in 1888 the lands were delivered to the purchaser, Bernard, after a survey had been made at the instance of his vendor, Webster.

The witness Bernard, the lessee, also testifies:

Q. When you sold the land to Mr. Duson in 1888, did you not stipulate with him that you should have the refusal of renting the land from him as a pasture — was there any agreement in writing?

A. Yes; I asked him the privilege, the use of the land for two or three years, but I don’t know if it was in writing or not.

The vendee testifies that Bernard said he did not know whether he would lease or not, and a short time after moved away his fence.

There was no lease agreed upon between them.

About the 1st of December, 1890, a few days before the suit was brought, the defendant constructed a one strand wire fence around the place.

The vendor, Bernard, remained in possession after the sale, until the spring of 1890.

He renewed his lease with plaintiff in July, 1890.

He had parted with his title and remained in possession undisturbed under the lease.

The defendant’s counsel urges the fact that the lease was under sous seing privé; that it never was recorded and- that his client was without notice.

These considerations do not have the effect of placing him in possession.

The vendor from whom he did not exact an actual delivery held under a vendor he permitted to remain in undisturbed possession for some time.

The law favors the vigilant.

In this instance, long delays elapsed without requiring actual delivery of the property.

During the time and prior, the plaintiff was a lessor of the person in possession.

It is a misfortune, from which we can not grant any relief, that the defendant and his authors permitted a vendor to continue in possession without exacting actual delivery and immunity against an adverse possession.

Possession may be proven by parol testimony, a fortiori by a contract of lease sous seing privé.

The lessee’s possession is the principal’s. The plaintiff had civil possession preceded by an actual corporeal detention of the property through her lessee within the year that her action was brought.

The plaintiff was entitled to bring the possessory action and recover judgment maintaining her possession.

The action is primarily possessory in its character.

The inquiry is principally one of possession.

After the exception had been referred to the merits, as before mentioned, an issue of title was raised, which occupied comparatively but little time.

The defendant in an action of jactitation by setting up title in himself changes the suit into a petitory action, in which he becomes plaintiff, and he must succeed in the strength of his own title.

The inquiry has been so exclusively one of possession, and of the possessory action proper, that we have concluded to limit our decision to a determination of that issue.

It is therefore ordered; adjudged and decreed that the judgment appealed from be amended by limiting the decree to one of possession, and there is judgment for plaintiff against the defendant maintaining plaintiff in her actual possession of Sec. 27, T. 10, R. Iff., and maintaining and perpetuating the injunction sued out in so far as relates to plaintiff’s possession. And to maintain plaintiff’s actual possession the defendant, Bernice W. Lambert, is ordered to remove the works by him erected on said lands.

As amended by limiting the decree to one of possession, the judgment appealed from is affirmed, reserving to the parties all rights they may have in so far as relates to title to the property in a peti- ■ tory action.

And in so far as it decides any question of title it is annulled, reversed and avoided at appellee’s costs.


author: Nicholls, O. J.

text:
    No. 1427.
    St. Louis National Bank vs. Joseph Bloch.
    Where the language and terms of an interlocutory order apparently suspend abso lutely, witlioutreferenceto future possibilities, to agivenfixedperiod, the right of a defendant to try the issues raised by him in his reconventional demand, and the defendant, claiming that such suspension is unreasonable and arbitrary, that it fetters the judge’s action in the case, and that it will occasion him irreparable injury, appeals from the same, the Supreme Court will entertain the appeal for the purpose of ascertaining whether such complaints are well grounded.
    When plaintiffs petition is put at issue by defendant’s answer, in which is contained a reconventional demand, the suit with its issues stands as an entirety, and can not be tried piecemeal.
    When in a case standing in such a position the defendant, through a respite, subsequently obtained by him, stays plaintiff’s demand and ties his hands, he at the same time stays proceedings on the issues raised in the answer, which are necessarily connected with and incidental to the main action, and ties his own hands on the reconventional demand.
    When the defendant, in a ease so circumstanced, attempts, notwithstanding the respite, to try his own'demand separately from that of the plaintiff, the action of the judge on exception in disallowing the trial of the same is correct.
    An order of the judge on such exception suspending proceedings on£the reconventional demand until the expiration of the respite can not and must not be consumed as fettering the future control of the judge overthesame. I-Ie is entitled to revoke or modify it if subsequent events should justify such action.
    Respite does not abate, but merely holds in abeyance, suits standing at issue when the respite is granted.
    APPEAL from the Eleventh District Court, Parish of St. Landry. Perratolt, J.
    Thos. H. Lewis for Plaintiff and Appellee.
    H. L. Garland and Kenneth Baillio for Defendant and Appellant:
    1. Interlocutory judgments are appealable where they procrastinate the suit to an indefinite period. 3 R. 103; 11 R. 452, 10 An. 508.
    2. Parties are bound by evidence received without objection. 6 N. S. 86; 1 La. 301; • IS La. 321; 9 An. 254.
    3. As against a non-resident plaintiff the defendant can reconvene for any cause of action. O. 3?. 375.
    4. The forced respite results from the operation of law, and is the effect given by the law to the decree of a competent court, predicated upon the requirements of the respite laws. 36 An. 907.
    5. The law of respite grants immunity from suit to the embarrassed but solvent debtor. It does not extend such immunity to the latter’s debtors. O. O. 3084.
   The opinion of the court was delivered by

Nicholls, O. J.

In this case the plaintiff, the St. Louis National Bank, filed suit against Joseph Bloch, on March 7, 1890, claiming the sum of $1217.97 and interest, joining a writ of attachment to the action, upon the ground of fraudulent conversion of his goods by Bloch.

Bloch, on the 10th of March, 1890, filed an answer, and in the answer inserted a reconventional demand for damages for the sum of $38,500.

On the 16th of June, 1889, Bloch applied for a respite, obtaining the customary order for a stay of proceedings against his person and property until further order of the court.

On the 16th of August, 1890, the proceedings of Bloch’s creditors granting him a respite for three years was homologated by judgment of the District Oourt.

After the respite had been granted and homologated, on the demand of the plaintiff the defendant executed and delivered a bond in accordance with Art. 3093 O. O. and Act No. 134 of 1888 in favor of plaintiff.

The suit remained in this condition until the May term of 1892, when, on the defendant’s insisting upon a trial of the reconventional demand, and the case being called for trial, plaintiff interposed an exception alleging that defendant could not prosecute his reconventional demand during the time of the respite, and asking for a continuance. On the trial of this exception and motion for continuance the judge ordered all proceedings tobe suspended during the term of the respite. From this order defendant has taken an appeal.

In this court the plaintiff has made a motion for the dismissal of the appeal on the ground that the case is not appealable, the remedy of the defendant, if any he had, being by writ of mandamus, and furthermore for the reason that it is taken from an interlocutory order that does not and may not work irreparable injury.

On Motion to Dismiss.

Judgments delaying the trial of suits indefinitely and causing thereby irreparable injury are appealable.

In Newal vs. Martin, 3 R. 102, the court permitted an injunction against an order of seizure and sale until its ensuing term, and the appellate court said:

“ We can not but regard this as an interlocutory judgment pronounced after hearing the parties, and from which an appeal may well lie, because it might operate irreparable injury.”

This principle was affirmed in Duplessis vs. Lastrappes, 11 R. 450.

In Garrett vs. Oliver, 10 An. 508, an appeal was allowed from an interlocutory judgment permitting a defendant to call his vendor in warranty and extending it to subsequent vendors in warranty, which would in the court’s opinion have had the effect of postponing the plaintiff’s suit to an indefinite period. * * * “ Hence (said the court) the order may be considered as productive of an irreparable injury to the appellant.” ’

It appears to us the present case can hardly be distinguished in principle from that of Duplessis vs. Lastrappes, 11 R. 451; Thomas vs. Baillo, 7 R. 414 and 416.

The pending case is quite similar, and the foregoing authorities applicable.

Motion to dismiss is therefore overruled.

On the Merits.

When the defendant Bloch filed an answer and inserted therein a reconventional demand against plaintiff, the suit became an entirety and could not thereafter be tried piecemeal. It is impossible to try the issues raised in an answer separately from those raised in the petition, particularly where those in the answer are necessarily connected with or incidental to the main action.

When the defendant applied for and obtained an order for a stay of proceedings and an order for a respite, the effect of that condition of things was to stay plaintiff’s suit — -not a part of the suit but the whole of it. The suit did not abate as the result of the respite; it was simply held in check. The respite may have had the effect of releasing ipso facto the property attached and replacing it in the hands of its owner, but it did not operate, as we have said, the dismissal of the suit with its issues. That remains in the condition in which the respite found it, subject to be taken up and proceeded with or not at some future time, as circumstances might develop. If there be any hardship in the matter it is simply the result of the course which defendant has himself elected to follow. The fact that the defendant has furnished a bond in favor of the plaintiff under Act Ho. 184 of 1888 does not affect the situation.

In the ease of Mitchell vs. Dalton & Dalton, not yet reported, decided recently at Monroe, this court-rendered judgment for damages in reconvention in favor of a debtor who had obtained a respite against one of his creditors who subsequently to the order for a stay of proceedings and pending the same, had brought a suit for personal judgment against him, and had accompanied the demand by an attachment. The facts of that case, however, bear no resemblance to the present one. All the proceedings took place after the stay, the suit was tried as a whole after issue joined, without exception, and evidence heard without objection.

The order rendered in this case can be, and doubtless will be, modified or entirely revoked in the future should circumstances warrant the same. The language and terms of that order could not, and must not, be held to fetter the judge in his future control of the same.

As matters stand, we can afford the defendant no relief, and the court declines to annul or revoke the order complained of and appealed from, and, subject to the limitations stated in this opinion, the said order of the District Judge is affirmed at appellant’s costs.


author: Watkins, J.

text:
    No. 1,419.
    The State of Louisiana vs. Joseph Toups, alias Bell.
    1. Tlie forfeiture of an appearance bond, or recognizance, is a criminal proceeding, and the appeal from the judgment of forfeiture is not to bo tested by the rule applicable to civil actions.
    2. In case there is no bill of exceptions in the record, and there has been no assignment of erl'ors filed, relief can be granted, in a criminal case, only upon fatal defects being pointed out as apparent on the face of the papers.
    3. If the record fail to disclose the existence of an order of a competent judge, authorizing the acceptance of a recognizance or appearance bond, the judgment of forfeiture must be pronounced null and void.
    4. Such matter can not be considered as presenting a question of insufficiency of evidence on which the judgment is founded, but the absence from the record of matter absolutely essential to its validity, as matter of law.
    APPEAL from the Eleventh District Court, Parish of Acadia. Perrault, J.

      E. B. DuBuisson, District Attorney, for the State, Appellee.

      J. N. Ogden for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the court was delivered by

Watkins, J.

From a judgment forfeiting the appearance bond of a party charged in an indictment with the crime of larceny the surety has appealed, and the State seeks to dismiss the appeal, on the ground that this court has no jurisdiction ratione materise, because such forfeiture is a civil matter, and the amount of the bond being only $250 it is below the lower limit of its constitutional cognizance.

This question has been frequently solved and definitely settled otherwise by the decisions of this court, and notably in the following, viz.: State vs. Cassidy, 7. An. 276; State vs. Williams, 37 An. 200; State vs. Hanson, 38 An. 299; State vs. Burns, 38 An. 363; State vs. Belize, 38 An. 543; State vs. Hendricks, 40 An. 719; State vs. Cornig, 42 An. 416.

In most, if not all, of the foregoing cases, the jurisdiction of this court was specially put at issue, and as invariably entertained.

It would seem manifest, under ordinary circumstances, that the salutary doctrine of stare decisis should be applied, and the agitation of the question put at rest; but as the zealous counsel of the State insists that it be reopened because “ a leading ease on the subject, which maintains a contrary doctrine, nowhere appears to have ever been brought tó the attention of the courts,” referring to Pearce vs. Morgan, 3 La. 342, from which counsel draws the conclusion that the later decisions are clearly erroneous and evidently founded on what he terms an obiter dictum of the court, expressed in State vs. Cassidy, 7 An. 276, and which has been followed ever since without question.

In view of this exceptionally strong statement, we feel it incumbent on us to review the question again, and determine it as res nova.

Recurring to the ease of Pearce vs. Morgan we find it stated to be an injunction against an execution of a criminal recognizance, which was issued by the Criminal Court of New Orleans, and the complaint of the proceedings in forfeiture was “that the recognizance being an obligation for the payment of money, the Criminal Court could not entertain jurisdiction,” hence, as stated by the court, “the questions presented by the cause relate to the jurisdiction of the court established for the trial of crimes and misdemeanors” under legislative acts of 1818 and 1819. In our view that case presents an altogether different question of jurisdiction from the one presented here, and the law at that time governing forfeiture proceedings was different from the law controlling the instant case, as will readily appear from the opinion, from which we extract the following, viz.:

“ The judgment rendered in the Criminal Court * * was against a surety on a bond, or, recognizance for the appearance before that court, of a person charged with a crime. The condition of that instrument not having been complied with, principal and sureties were legally subjected to pay the penalty (and) they incurred a loss to that amount, recoverable from them for the use of the State. In legal process the recognizance was forfeited. But was this forfeiture a consequence of crime? Certainly not direct and immediate. It was only a remote consequence of the alleged crime, and makes no part of that offence.”

The court then proceeded to examine the organization acts of the Criminal Court, and found that they conferred upon it “ no power to try any civil suit,” and held that “ the fines and forfeitures” which it could adjudge were those only having “ reference to judgments directly as punishments for crimes and offences.” And the court then proceeds to say:

“ It may be true that pursuits against sureties, in bail bonds and recognizances for the appearance of persons accused of crimes, take their origin from criminal prosecutions, but the forfeiture arising from the violation of the conditions of these obligations does not render the obligors criminal in the general acceptation of that word. They become simply debtors to the State, and should be pursued as such according to the modes pointed out by law. A pursuit of this nature is not necessarily an incident or accessory of the criminal prosecution; it is a mere consequence of the latter, flowing not directly from it, but from a breach of the conditions of the bond, and resolves itself into a civil suit, and being such the court of criminal jurisdiction, in con-, sequence of Us limited powers can not legally take cognizance of it, further than to declare the bond or recognizance forfeited, and thereby subject the obligors to be pursued for a recovery of the penalty in a court of civil jurisdiction, either by ordinary or summary powers, as may be ordained by law.”

The court emphasizes the foregoing analysis of the law by this observation, viz.:

The inconvenience which results from the necessity of transferring to a court of civil jurisdiction, bail bonds and recognizances taken in criminal cases which may have been forfeited will be felt in no other part of the State except the first judicial district, as all other courts have both criminal and civil jurisdiction. It is an inconvenience, however, that might have been prevented by power to that effect granted in the institution of the criminal court of this district, and may yet be remediedby legislative interference, in according to that court civil jurisdiction in relation to the recovery of debts-due to the State on account of-forfeitures of bonds and recognizances taken in any prosecution for offences against public justice,” etc.

The foregoing extracts from that case clearly demonstrate the following propositions: (1) that in default of the appearance of the accused, the principal and surety are legally subject to pay the penalty of the bond; (2) that this penalty is not the direct and immediate, but remote consequence of the crime charged, and not a part of it, and the forfeiture does not render the obligor criminal, but-charges him as a debtor of the -State; (3) that a proceeding of this kind is not necessarily an incident or accessory of the criminal proceeding or prosecution, but a consequence of the latter, though not flowing directly from it; resolving itself into a civil proceeding, such as a criminal court of limited jurisdiction and powers can not take cognizance of, save and except to declare the forfeiture, and leave the obligor subject to pursuit for the penalty in a court of civil jurisdiction.

The court draws a plain distinction between the power of the criminal court to find and declare a forfeiture of a bond and that of enforcing the judgment of forfeiture once it is rendered. It was the latter alone which the court denominated to be a quasi civil proceeding. But that distinction was based solely upon the absence from the-legislative acts drawn in question of any authority conferred upon the Criminal Court to entertain such proceedings — the court expressing the opinion that this was only a temporary inconvenience which the Legislature could repair, and one which was experienced in no other part of the State, all other courts except the Criminal Court of the parish of Orleans possessing civil as well as criminal jurisdiction.

The law in force at that date provided that when a party was regularly called upon his recognizance and failed to appear á judgment nisi or preliminary decree of forfeiture should be entered up in'the criminal case, and that in order that same be made final and ex-igible, a rule must be taken upon the defaulting parties “to show cause why a final judgment should not be entered up.” State vs. Frith, 14 La. 191.

But the Legislature of 1837 so amended prior statutes in reference to recovery of the amount of bonds and recognizances in criminal eases as to authorize the courts haying cognizance of such cases, upon the failure of the parties to respond when called upon, “to forthwith enter up judgment against both principal and securities in solido, for the full amount of the bond,” etc. Sec. 1, Act 104 of 1837..

This statute was re-enacted in 1855, and has since been embodied in the Revised Statutes, under the title of “ criminal proceedings,” and it is the law of to-day. R. S., Sec. 1032.

From this change in the law, there has resulted a corresponding change in the jurisprudence respecting the character of the proceedings ; and the distinction made, in Pearce vs. Morgan, between the decree of forfeiture and the final judgment on the rule to show cause, has likewise ceased to exist — the court being empowered, on simple motion, to “ forthwith enter up a judgment against principal and securities in solido,” without any delay, or any rule to show cause.

This change is further illustrated by the provision of the Act of 1855, which makes it the duty of the clerks of District Courts to issue notices of. such judgments to the parties concerned, and to issue executions on such judgments; and it also makes it the duty of sheriffs to execute the same — thus relieving the Criminal Court from the performance of any civil function in connection therewith, subsequent to the rendition and signing of the judgment of forfeiture.

From the foregoing it clearly results that the judgment of forfeiture — the judgment nisi under the former, *as well as the judgment final of the latter law — constituted part of the proceedings in a criminal case, irrespective of what was said of the character of the proceeding and judgment on the ancient rule to show cause.

Prior to 1843, appeals were not permitted in criminal cases, the Constitution of 1812 having conferred on this court appellate jurisdiction in cimi cases alone. Art. IV, See. 3 Cons. 1812; State vs. Seeley, 41 An. 143.

But, under the Consitutions of 1845 and 1852, this court had jurisdiction “in criminal cases, upon questions of law alone, whenever the punishment of death or hard labor may be inflicted,” etc., just as it has under the Constitution of 1879. Art. 63, Const. 1845; Art. 62, Const. 1852; Art. 81, Const. 1879.

In Pearce vs. Morgan no doubt was expressed as to the constitutional power of the Legislature to confer such jurisdiction on a Criminal District Court, and no question could have been raised in that case, or any other arising prior to 1843, in- reference to appellate jurisdiction in such a case, as none existed under the organic law of that time.

And as, even in that case, the court conceded the power and jurisdiction of the Criminal Court of New Orleans to find and declare the forfeiture of a recognizance, as a part, or incident, of the criminal prosecution, it seems necessarily to be likewise within the competency of such a court to find and render a judgment of forfeiture, under the less stringent provisions of the laws of 1837 and 1855.

This much being firmly established, has not this court, under its constitutional power to try “ criminal cases,” jurisdiction to examine- and revise the finding of the lower judge in such case?

Certainly it will not be claimed that an appeal changed in any manner the character of the ease. The contrary has been expressly held.

Heirs of Beaud vs. Russ, 34 An. 315.

In this view we think it was entirely correct for the court to have said in State vs. Cassidy, 7 An. 273, that “ tho forfeiture of the bond by judgment has always been regarded as a criminal proceeding; and, whether criminal or civil, was obtained in this case in the mode pointed out by the act of the the 11th March, 1837, passed expressly for the purpose.”

In State vs. Williams, 37 An. 200, this court merely repeated with approval what was said in Cassidy’s case, that “ the forfeiture of an appearance bond is a criminal proceeding;” and then added that the appeal from the judgment of forfeiture is not to be tested by the rule applicable to civil actions.

“ In criminal cases our jurisdiction comprehends only those where the punishment of death or imprisonment at hard labor may be inflicted or a fine of $300 is actually imposed; yet it is well settled that we have jurisdiction where the indictment for those off enees has been quashed. The State may appeal therefrom, although no punishment has been awarded and no fine imposed. State vs. Ellis, 12 An. 390.

So, when the punishment awarded is neither death nor imprisonment at hard labor, but of _a grade whereof we have not jurisdiction, yet, if the offence charged be one for which either of those punishments may be inflicted, we have jurisdiction. State vs. Charles, 14 An. 650.

“ Now the offence with which the defendant is charged is one that .gives jurisdiction, because one of the jurisdictional punishments may be inflicted on him, and that fact attracts jurisdiction to the appearance bond that was given in that criminal proceeding.”

That opinion is clear, well expressed and strictly in keeping with ■antecedent decisions on the subject, and has been followed in subsequent cases.

It is worthy of note in this connection that the surety on an appearance bond is something more than a simple obligor, for “ the principal is supposed to be in the bail’s constant custody, and the former, being the latter’s, jailor, may at any time surrender him to the custody of the law.” Whar. Orim. PI. and Prac., Sec. 62.

Hence the recognizance forms the evidence of that official custody of the surety, and his default in not complying therewith is proof of his unfaithfulness as a custodian of the accused; and while this default in not per se a criminal act punishable as such, yet it evidences a dereliction of duty to the court in that case on the part of the surety, and the resulting forfeiture thereof is its penalty, and which is, on that account, inseparable therefrom.

Counsel has cited us to the opinion of the Judges of the Third Circuit Court of Appeals in the case of State vs. Alexander, in which they entertained jurisdiction of a precisely similar judgment of forfeiture, on the theory that it was a civil suit, or proceeding — placing reliance upon State vs. Frith, supra; State vs. Desforges, 5 Rob. 259, and State vs. Ansly, 13 An. 299. The purport of those cases is that the surety upon a criminal recognizance “incurs a civil obligation.”

That is conceded in all recent decisions upon the subject, in so far as the recognizance is considered intrinsically; but that fact is not considered as controlling the question jurisdictionally. For, in State vs. Hendricks, 40 An. 719, this court says: “Intrinsically, the proceeding may be viewed as civil in character. It is based upon a contract under private signature, on which-a money judgment can be rendered, which may be executed on the issuance of a jd. fa. It is not a proceeding for the recovery of a fine inflicted for the commission of an offence. In so saying, we do not lose sight of the fact that it has been treated as a criminal proceeding in order to determine questions of jurisdiction in cases of appeals from judgments of forfeiture of bail bonds.”

The preliminary question raised- upon the motion to dismiss is whether or not the appeal is jurisdictionally well grounded, and the •ultimate question is the effect of the obligation that the State seeks to have enforced; and, as we have clearly demonstrated, the ultimate effect of the obligation can not determine the jurisdiction of this court to enjorce it. Therefore, conceding all that is claimed in the opinion of the Oircuit Court, our jurisdiction can not be divested.

The additional point is made in the motion that the transcript is not full and complete, and that the clerk’s certificate does not state it to be in the manner required by law. Notwithstanding the certificate is somewhat inartificially drawn, it seems to be sufficient for all necessary purposes.

Upon a careful and painstaking review of all the authorities bearing on the question, we are satisfied that the motion .to dismiss is not well taken, and must be denied.'

On the Merits.

The only evidence approved and filed in the forfeiture proceedings was the appearance bond. It is of the usual form, and is conditioned for the appearance of the accused before the District Court of Acadia parish on the 5th of June, 1892, “ and every succeeding day of every regular term of said court, to be thereafter holden until discharged, then and there to answer,” etc., but there is nothing to show by what authority said bond was taken, although it bears this endorsement, to-wit:

“Taken and acknowledged at the parish of -, this 14th of March, 1892, before me, A. C. Leonard, J. P.”

From the judgment pronounced thereon the defendant surety has appealed, and assigns the following fatal errors apparent upon the face of the papers to defeat it, viz. :

1. That the execution of the bond was not proved.

2. No order of court was offered in evidence authorizing the issuance of the warrant of arrest, and the acceptance of the bond, or recognizance.

8. No amount was mentioned in the minutes showing the amount of the bond that the accused was to furnish.

To the consideration of these objections 1he district attorney urges the objection that, conceding this matter to be a criminal proceeding, and consequently within our jurisdiction, our opinion must be confined to the treatment and determination of questions of law alone, and that the objections urged involve questions of fact, and can not, therefore, be considered in the absence of any bill of exceptions reserved, or assignment of error.

This precise question arose and was decided adversely to the present contention of the State’s counsel in State vs. Balize, 38 An. 542, in which the following language was employed, viz.:

“ We find in the record no bill of exceptions, and there has been no assignment of errors filed in this court. The only grounds upon which the appellant relies are stated in his counsel’s brief, and they can only prevail if the defects complained of appear upon the face of the papers, and are in themselves sufficient in law to justify the reversal of the judgment.”

One of the grounds assigned for the reversal of the judgment was “that the record did not show that the accused was released on bond in pursuance of the order of the judge, and that said bond is utterly void.”

On an examination of the record, we ascertained that the appearance bond was taken without an order of court admitting the accused to bail, or fixing the amount of the bond, and declared that, in the absence of such proof, the judgment of forfeiture, as a matter of law, was a nullity; citing State vs. Longiman, 6 An. 700; State vs. Craig, 12 An. 224; State vs. Smith, 12 An. 349, and State vs. Gilbert, 10 An. 532.

It is evident that it was not a matter of the sufficiency of evidence that controlled our decision, but the absence from the record of matter absolutely essential, as a question of law, to the validity of this bond, and without which there conld be no legal forfeiture thereof.

Those decisions control the decision of the question under consideration here. Referring to State vs. Gilbert, 10 An. 532, we find it to be predicated on State vs. Clendennin, 6 An. 744; State vs. Longiman, 6 An. 700; State vs. Harper, 3 An. 598; State vs. Hayes, 4 An. 59; State vs. Jones, 3 An. 10, and State vs. Sewell, 3 An. 575.

The further point is made by the district attorney “ that the bond shows upon its face that it was taken and acknowledged before a justice of the peace, and, of course, an order of the justice to himself would have been, meaningless.”

It is true that a justice of the peace is authorized by law, in a certain class of cases, to receive complaints and cause accused persons to be arrested, but the law specially provides that if the crime charged be one that may subject the party to capital punishment, or to imprisonment in the penitentiary, he must be carried before the judge of the district for examination and bond. R. S., Sec. 1010.

The accused defendant being charged with larceny, it was the province of the district judge to have heard the complaint, made the. examination and taken and approved the bond.

As it is not pretended that the judge of the District Court had authorized the justice of the peace, or any other officer, to take and approve the bond, and it is evident he did not take and approve it himself, it is manifestly void, and the judgment of forfeiture based thereon is likewise void.

Following precedents, we hold that, upon the face of the record, the judgment is without any foundation in law and must be reversed.

The clerk of this court has prepared and filed a rule on the parties to the record, to show cause why they should not be taxed with costs.

Viewing this as a quasi criminal proceeding, they can not be thus taxed, and the rule must be discharged.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed, and it is now ordered that there be final judgment in favor of the defendant and appellant, and that he be relieved from payment of costs.


text:
    No. 1420.
    The State of Louisiana vs. Joseph Toups, alias Bell.
    Article 12(i ol the Constitution, so enlarges the powers ol justices ol tlie peace that, they are empowered to bail or discharge persons accused ol crimes and of-fences, in eases not capital or necessarily punishable at hard labor.
    PPEAL from the Eleventh District Oourt, Parish of Acadia. Perrault, J.

    Same Counsel as in preceding case.
   The opinion of the court was delivered by

Watkins, J.

The pleas and issues in this cause being identical with those raised and decided in ease of same title and docket No. 1419, the opinion and decree therein pronounced will necessarily control our decree herein.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is now ordered and decreed that there he final judgment in favor of the defendant and appellant, and that he be relieved from paying cost.

On Application for Rehearing.

We are requested to grant a rehearing in this case on the sole ground that we erred in holding that the justice of the peace was unauthorized to take and approve the appearance bond of defendant — inviting our attention, for the first time, to the language of Art. 126 of the Constitution, empowering justices “to bail or discharge in cases not capital or necessarily punishable at hard labor.”

The provisions of this article of the Constitution enlarge the power of justices of the peace in reference to granting bail, as it existed under the Revised Statutes, Section 1010; and, inasmuch as Section 8 of Act 124 of 1874 denominates as petty larceny the taking of property or money under the value of $100, and declares that it shall be punishable by imprisonment in the parish prison, or in the penitentiary, “ at the discretion of the court,” the justice of the peace who accepted and approved the bond under consideration was apparently authorized. State vs. Bruce, 33 An. 186; State ex rel. Stevens vs. Judge, 34 An. 52.

In this case the indictment shows that the value of the property charged to have been stolen is less than $100 in value, and the crime mentioned in the appearance bond is petty larceny. Consequently the justice of the peace was presumably authorized to take and approve said bond; and being authorized, there was no necessity that an order should have been made fixing the amount of the bond and authorizing its acceptance.

In this view of the law governiug the acceptance of the appearance bond of the accused our opinion and decree are erroneous, but the question presented being one of law, it is not necessary that a rehearing be granted.

It is therefore ordered and decreed that our former decree be set aside, and it is now ordered and decreed that the judgment .appealed from be affirmed.


author: McEnbry, J.

text:
    No. 1425.
    Tiburce Norres, Tutor, et al. vs. David Hays, Administrator, et al.
    Prescription is suspended on a claim in favor oí succession due bytheadministrator. It is likewise suspended against the co-debtor, who is bound insólido with the administrator.
    An administrator in debt to the succession can not bring a suit against himself and his co-obligors.
    A m ortgage is not destroyed by a failure to reinscribe it within ten years. It loses its rank only. Parties who have Acquired rights on the property before reinscription, after the ten years can Contest' the reinscription. As to all others, it has the effect after reinscription of the first inscription.
    A tax sale under Act 98 of 1886 is null and void, if the tax debtor has received no notice as required by Art. 210 of the Constitution.
    An assessment is defective and the sale thereunder null and void, when the property is owned in indivisión, and is assessed to the estate of a deceased co-proprietor, when he lived and died in another parish.
    When the tax and deed shows that the property was sold in block in violation of Art. 210 of the Constitution, the sale will he annulled.
    APPEAL from the Twenty-first District Oourt, Parish of Iberia. Mouton, J.

      W. J. Burke and T. D. Foster for Plaintiffs and Appellees:
    The court, in remanding this ease, did not limit the further proceedings to the question of interruption of prescription.
    Unconditional heirs of an estate may, in tlieir own names, institute an action to annul a tax sale of the property of a debtor of the estate, especially if the administrator be made a party. 42 An. 857.
    Only the administrator of an estate under administration can sue to recovera money debt due it. An heir can not. 24 An. 278; 28 An. 591; 38 An. 1010; 36 An. 408.
    Prescription as between an estate and its administrator is suspended during administration. An administrator cannot sue liimself. Noroan he sue his co-debtors, for in suing them he must judicially admit his own indebtedness.
    As to himself and them the rule non contra valentón applies. It is his duty to protect the estate, and he can not avail liimself of his violation of his official obligation to the detriment of his trust. Nor can liis official sureties avail themselves of his fault, and prescribe theii1 debt due the estate, in solido with him, for the reason that their obligation is to secure the estate against his faults. 10 Wallace, 508; 130 U. S. 320; Eng. and Am. Eney.,Vol. 18, pp. 735, 736, note 1; ibid., p. 731; Marcade on Prescription, p. 164,11; p. 165, III;p. 298, Sec. 2, LVII; H. p. 1227, Y (a), Nos. 2, 27; 32 An. 1037, 1041; 36 An. 408; 37 An. 741, 748; 8 ft. 488; 11 ft. 155; 23 An. 682.
    Prescription of a debt, whether it he in form of a judgment or not, may he interrupted in many ways. Parol testimony is alone excluded as to a judgment. O. O. 3547; 42 An. 154, 857; 30 An. 1071; 38 An. 1296; 34 An. 418; 37 An. T69.
    An administrator can not, even tliough he may sue himself and obtain a valid judgment, change the rule of prescription applicable to the debt and cause its c.urrent to move where it before was suspended. It remains suspended.

      Tlie prescription of judgments and of ordinary debts may be interrupted by judicial admissions made in pleadings in other suits, as well as in that in which the question arises. Greenleaf, Secs. 27, 186, 205, 527; Wharton on Evidence, Secs. 1110, 1185, 1187; BO An. 1071-78.
    Interruptions of prescription of judgments, by other than the statutory method, are binding on all persons. 42 An. 152-54.
    The issuance of fi. fa. by an administrator, against himself and co-debtors, on a judgment against them in solido, interrupts prescription on the judgment. This differs from the usual ease, where the judgment creditor and debtor are entirely different persons.
    The debt does, but the conventional mortgage does not, merge into the judgment. If the debt exists, the failure to reinscribe the judgment defeats the rank of the judicial mortgage. But the conventional mortgage holds its rank if it has been timely reinscribed, in the manner of its original inscription. O. C. 3369; 22 An. 402; 34 An. 313; 42 An. 152.
    The heirship of plaintiffs is admitted by the general and tacit issues. H. p. 1152-55; B. Nos. 1-13; liOuque, p. 540; B. Nos. 7-9.
    The assessment of the whole property exclusively in the name of one co-owner, in indivisión, is a fatal defect. 33 An. 1163. It must be in names of the owners, according to the titles. 26 An. 738; 29 An. 508-9; 32 An. 288, 913; 33 An. 520; 35 An. 1086.
    Failure of the collector to give the notices required by Constitution 210, Sec. 51 of ■ act 98 of 1886 and Sec, 49 of act 96 of 1882, before seizure, vitiates the sale. 43 An. 427, 433-34; 33 An. 1163, 291, 520; 32 An. 226, 236; 31 An. 661; Cooley, pp. 217, 218; 30 An. 871.
    A tax sale is, prima facie, valid only when it contains the recitals required by law, and shows the law has been complied with. It must contain a brief history of the proceedings had and show that the essential notices have been given. If it shows a sale made in violation of law, it proves nothing. Sec. 61, Act 96 of 1882; Sec. 64 of act 98 of 1886; 32 An. 228, 236, 925; 30 An. 871,1272; 37 An. 417.
    It should be shown aliwnde, if not by the recitals of the deed, that the notices have been given. 30 An. 871,1272; 32 An. 228, 236, 925 ; 37 An. 417.
    If the deed shows the sale was made in block, to the highest bidder, in violation of Constitution 210 and the Statutes, it has no effect, and the sale is null.
    When an illegal tax sale is annulled, the purchaser can recover only the portion of the price which was applied to payment of the principal of the taxes due. Interest, penalties and costs will be disallowed. 33 An. 521, 531,1423.

      Todd & Todd and L. O. Hacker for Defendants and Appellants:
    1. There is no demand in the prayer of the petition for a judgment for the debt, or for the revival of the judgment, or for a recognition of a mortgage or privilege, or their enforcement.
    2. The prayer of the petition determines the character of the action. 15 An. 293;* 20 An. 170; 23 An. 599; 35 An. 874; 41 An. 281.
    3. Where a debt is represented by promissory notes and a judgment is rendered upon them, the note» are merged in the judgment and cease to exist thereafter. 9 L. 418; 1 An, 372; 3 An. 386; 35 An. 43; Manning U. R. Cases, 296.
    4. A mortgage perempts in ten years from its inscription. O. C. 3369.
    5. The record of a judgment rendered on a mortgage does not preserve the mortgage, but the act of mortgage must be separately inscribed or reinscribed to preserve it from peremption. 22 An. 402; 34 An. 313; 42 An. 152.

      6. A judgment is extinguished by ten years’ prescription. 0.0.3547.

      7i( The extinction of the debt principal carries with it the extinction of the accessory mortgage or privilege. O. O. 3411; 30 An. 896; 32 An. 84.
    8. A judgment is saved from prescription only by revival or citation therefor (C. O. 3547 ; 33 An. 1296; 34 An. 413); or by written acknowledgment of the debtor (act of 1868), O. O. 2278 ; 30 An. 1071.
    9, Prescription of a judgment is not interrupted by the issuing of an execution upon it (25 An. 489); nor by the giving of a draft by the debtor for its payment 25 An. 489, 490.
    10. Nor does an appeal devolutive or suspensive interrupt or suspend prescription. 23 An. 176; 30 An. 1330.
    11. Xor an injunction. 23 An. 579.
    12. Nor its acknowledgment in writing by the administrator of the deceased debtor and the placing it on the tableau of the succession debts. Sue. Graneaux, 40 An. 704.
    13. There is no legal prohibition to the appointment of an administrator because of his being a debtor of the succession.
    14. Being, after his appointment, the legal representative of the succession, he can legally act for the succession and putin motion all suits against all persons, and judgments rendered therein are judgments in favor of the succession —not of the administrator, and valid.
    15. Heirs or creditors, hi their own name, may sue to enforce all claims in favor of a succession where the administrator will not act, by making him a party defendant, and this right to sue without the co-operation of the administrator, and independent of him, existing, there can be no suspension of prescription, whether the administrator acts or refuses to act. 7 An. 136; 14 An. 777; 38 An. 238.
   The opinion of the court was delivered by

McEnbry, J.

The plaintiffs, alleging themselves to be the holders of and owners of a mortgage claim against property sold at tax sale, brought this suit to cancel the same.

An exception of no cause of action and prescription was filed The exception was maintained and the suit dismissed.

On appeal to this court the judgment was reversed, and the case remanded for the purpose of trying the question of prescription, and on the merits in case the exception of prescription should be overruled.

In the decree remanding the case to be tried on the merits, the exception of no cause of action was disposed of.

In the opinion of the court remanding the case the facts are fully stated. 42 An. 857.

After the ease was remanded the plaintiffs filed an amended petition for rents and revenues, and the defendant, De Rouen, for the price of the tax sale, the taxes subsequently paid and for the value of improvements. We will not pass upon the elaim of plaintiffs for rents and revenues and the defendant’s claim for improvements, as the defendant, De Rouen, became sole owner of the property independently of the tax sale, which issues may be more properly urged to enforce plaintiffs’ rights in the hypothecary action against De Rouen as third possessor. 33 An. 291.

There was judgment for plaintiffs, and the defendant, De Rouen, has appealed. In January, 1869, John Hays sold the land in controversy to his nephews, David, William and Malachi Hays. The price was $15,000, in five instalments, evidenced by promissory notes, in solido, maturing in one, two, three, four, five years from date. The purchase price was secured by vendor’s privilege and special mortgage. John Hays died in 1869. David Hays, one of the vendees, qualified as his administrator. His two brothers and co-debtors signed his bond as administrator. In 1875 David Hays brought suit on the notes, obtained judgment against himself and co-debtors, and caused execution to issue on the judgment. The sale was arrested by injunction, and nothing further was done in the execution of the judgment. Subsequently the administrator, David Hays, caused the erasure of the judgment from the records on the ground that it had become extinguished by prescription.

It is contended by plaintiffs that prescription on the notes was suspended during the time that David Hays was administrator, and that if the judgment be a valid one, prescription of the judgment was interrupted by several suits instituted by the plaintiffs. The defendant’s contention is that the notes were merged in the judgment, which they allege was valid, and that there has been no interruption of prescription on the same.

Complaint is also made by defendants that David Hays has been improperly made a party- to this suit, as he has no interest in it, having disposed of his interest in the land. But he has a direct interest in the question which has been raised as to the validity of the debt, and we are of the opinion that he has been properly made a party defendant.

It is no longer an open question that an administrator of a succession indebted to it can not sue on the claim in behalf of the succession, and that prescription is suspended during the continuance of his administration. McKnight vs. Calhoun & Sons, 36 An. 408; 32 An. 1037; 37 An. 341.

In the dissenting opinions in the case first referred to, this doctrine was recognized, but its application to a co-heir or co-debtor was denied.

In the instant case there is no attempt made to enforce the debt against a co-debtor who has interposed the plea of prescription, which" has been suspended by the position in which one of the co-debtors, who alone could act, has placed himself. But it is a universal rule in our jurisprudence that the interruption of prescription by one solitary debtor interrupts it as to the' others, because the debt is indivisible, and each is bound for the same thing. We see no reason why it should not apply to a suspension of prescription. In the instant case the reason is the more urgent, because the co-debtors were sureties on his official bond, and undeniably responsible for the mal-administration of their principal.

So far as the administrator, Hays, is concerned we do not understand that defendants contend, as to him, that the debt was prescribed. If not, then the debt really existed. No one could plead prescription against it when he was prohibited from doing so.

The plea of prescription, if sustained, destroys the obligation as an entirety. During the administration of David Hays the mortgage notes were kept alive and in existence.

The mortgage, if reinscribed as accessory to the debt, was also kept alive, and can be enforced on the property upon which it rests. No purchase, therefore, unless at tax sale, can defeat it.

The object of this suit is to set aside the tax sale in order to make the mortgage upon it executory.

Was the mortgage kept alive with the notes which it was given to secure? The mortgage is not destroyed by a failure to reinscribe it within ten years.

The omission to reinscribe a mortgage within ten years from the first inscription will cause it to lose its effect, its rank only, and the reinscription will give it effect from the time of such reinscription. Shepherd vs. Orleans Cotton Press Co., 2 An. 100.

Any one who has acquired an adverse interest by reason of the failure to reinscribe the mortgage within ten years can. oppose the same. It is subordinated to his rights. In this case the defendants have not suffered by failure to reinscribe the mortgage within ten years. They have acquired no adverse interest by such failure.

The inscription of the mortgage was made' March 17, 1870, and re-inscribed January 11, 1881, more than ten years after the inscription. The force and effect of the reinscription was to give it the rank it had when first inscribed, as to all persons who in the meantime had not acquired adverse rights.

When the defendant, De Rouen, purchased at tax sale 5th March, 1887, the mortgage was in full force, and he had acquired no adverse interest prior to its reinscription.

What has been said in relation to the suspension of prescription on the notes applies to the judgment, conceding it to be valid, as the mortgage was reinscribed during its existence, and was ■ kept alive with the judgment. 42 An. 152.

This case illustrates the soundness of the rule prohibiting an administrator bringing a suit against himself, in which he not only makes himself a defendant, but plaintiff, controlling the judgment, thus enabling him, as was attempted in this case, to convert the debt into a judgment, and then permit it to prescribe and order its cancellation and erasure from the records.

Tax Sale.

The property was sold for taxes under Act 98 of 1886. It was assessed to the estate of Wm. Hays. He resided and died in the parish of St. Mary. His heirs also resided there. The property was owned in indivisión by several.

There was, therefore, no valid assessment of the property upon which a sale could be made. It is elementary that the assessment is the basis of a judgment for the sale. Sue. Mercier, 42 An. 1139; Hays, Administrator, vs. Victor, Sheriff, 33 An. 1162.

The tax collector’s deed is prima facie evidence that all the prequisites to the sale have been complied with, but it is subject to consideration. In this ease the facts show that essential requirements of the law have been omitted.

It is evident from the assessment that the tax debtors received no notice as required by Art. 210 of the Constitution. Breaux vs. Ne-grotto, 43 An. 426.

The tax deed also shows that said article of the Constitution was violated in the sale of the property in block.

The tax sale is null and void.

Judgment affirmed.


text:
    No. 1427.
    Robert Benson vs. Wm. H. Cozine, Executor, et al.
    1. The testatrix bequeathed her property to legatees named in the will, in full ownership.
    She directs that it be placed in possession of a trustee during her existence. The charge is not a prohibited substitution, as the trustee is not in any respect vested with the property as owner.
    2. The will directed that the property be placed in the possession of a trustee, to be divided between the two legatees at her death.
    The trustee died prior to the testatrix. The latter had in effect revoked the charge, and there was no prohibited substitution.
    APPEAL from the Twenty-first District Court, Parish of St. Martin. Mouton, J

      E. Simon for Plaintiff and Appellee:
    1. Trusts are unknown to our laws, and are reprobated by law, under Art. 1520 B. C. 0., prohibiting fidei commission and substitutions.
    2. A disposition leaving property intrust, in express terms to one for others, to be divided between them after the greve’s or first legatee’s death, comes within the prohibition of Art. 1520, and is both a fidei commission and substitution, and therefore null.
    5. The reprobation and nullity strike at the entire prohibited disposition and all parties in interest therein. Mareade, Vol. 3, p. 377.

      Bobert Martin and C. H. Mouton for Defendants and Appellants
    cited C. C., Art. 14Y3; 5 N. S. 301; 18 An. 409; 31 An. 456; Marcadé, Yol. 3, p. 376; 3 An. 157.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff, alleging that he is an heir of the late Isabella J. Robertson, brought this action against the executor and her legatees to annul her last will and testament, on-the ground that it eonta!ns a prohibited substitution.

The will is olographic in form; it has been probated, and that part assailed reads: “I, Isabella Robertson, do hereby make the following bequests: My home, land, house and furniture, all complete, I leave to my step-mother, should she outlive me, to be held in trust for my cousin, D. B. Robertson, and my god-child, Isabel E. Knight, between whom I wish it to be equally divided after her death and,” etc.

The heirship of plaintiff is admitted; it is also admitted that the step-mother named in the will, Mrs. James B. Robertson, died at a time previous to the death of the testatrix.

From the judgment of the District Court annulling the will in part, on the ground that it contains a prohibited substitution, the defendant appeals.

1. There is no substitution or ficLei commissum in the will.

In leaving certain property in trust to her step-mother to be divided at her death, the testatrix has not made a disposition vesting the property in one person, her step-mother — to be vested at her death, in other persons.

The object of the prohibition is to prevent legatees from placing property out of commerce, and thereby deteriorating its value.

It is obvious that the will under consideration does not fall within the grasp of the prohibition and does not entail any of the mischiefs mentioned by Marcade, Yol. 3, p. 306.

It is evident that the testatrix neverintended that her step-mother should have title to the property under the will.

In Marshall et al. vs. Sarah H. Pearce et al., 34 An. 557, a well considered case upon the subject, it was decided that a will which read: “ I give and bequeath to my wife property, to have and to held during her natural life; after her death I give and bequeath the same property to my grandson,” was a prohibited substitution, as it was intended that the wife should receive the property in imperfect-ownership, free from interference during her life.

In the pending case there was no ownership possible, for the trustee was to hold the property in trust for certain mentioned heirs. It was not in any sense to be her property. In Succession of'Glidden, 44 An., the will, in so far as it related to trust, read: “ At my husband’s death the property shall be held in trust by my nieces, and all the income, including that left by my husband, shall inure to their benefit during their lifetime, and at their death to be divided equally between their daughters,” and the court held, in interpreting it, that the trust was not a prohibited substitution, and that the will gave to the nieces of the testatrix named as trustees, the income of the property or the usufruct, but not the title; that it was a naked trust.

The trust in the will we are considering is similar, so far as it does not vest the property in the trustee.

2. If it be conceded that the intention was to vest the step-mother with the ownership of the property, and at her death vest the legatees with ownership of the same property, for the reason that she did not survive the testatrix, there was at the death of the latter no possible substitution.

The will directed that the trust should not be a part of the disposition of the property if the step-mother did not survive the testatrix.

To set aside the legacies and decree them null we would have to give effect to an intention of the de cujus, especially recalled in the event of the death of Mrs. Robinson, the step-mother.

The property passed to the legatees without possible delay or incumbrance, and it is theirs since the death of the testatrix, without any right of interference by the trustee claiming it as a trust, or as imperfect ownership.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, in so far as it decrees as null that portion of the last will and testament of Isabella J. Robertson, de oujus, worded: “My home, land, house and furniture, all complete, I leave to my step-mother should she outlive me, to be held in trust for my cousin, D. B. Robertson, and my godchild, Isabel E. Knight, between whom I wish it equally divided after death.’ ”

The bequest and disposition being legal and binding, it is decreed that the said property be delivered to the said legatees in full ownership.

Except in that respect as just avoided and reversed the judgment appealed from is affirmed at plaintiff and appellant’s costs in both courts


author: Nicholls, C. J.

text:
    No. 327.
    Succession of N. C. Brownlee.
    Opposition to Final Account.
    1. A wife who at the death of her husband receives (as the beneficiary named therein) the amount of certain policies on his life, which the husband had taken out, and on which he had paid the premiums, can not be made by special opposition of a creditor to charge herself on the account filed by her as administratrix of her husband’s succession with the amount of those premiums as an asset of that succession, and as resulting from a debt due by her to it.
    2. In entering into those contracts the husband did not claim nor intend to act either as negoiiommi gestor or as agent of his wife; he was not dealing with reference to nor upon any property of hers. The obligations of the assured created by the policies were his own obligations, and when extinguished by payment of the premiums the debts paid were his debts, and not those of his wife.
    3. Even were there a situation, resulting from community relations, such that a wife would be as between herself and her husband liable for the premiums, she could not be held for that particular special item of indebtedness upon an opposition made to her tableau ol administration, especially where the opposing creditor does not allege that he is a creditor of the community; that it has been accepted by the wife, or that she has made herself liable as widow in community; that the community is insolvent, or that it has been liquidated, and that, as a result thereof, the wife lias been found to be a debtor thereto. A wife would be entitled to a general settlement: non constat, but that on such settlement she would not be found its creditor.
    1. Whore services have been rendered a succession upon the advice and with the consent of a particular creditor, he is estopped from contesting payment of the same when he concedes they have been properly performed and reasonably charged for.
    Watkins, J. PPEAL from the Second District Court, Parish of Bossier.

      Joannes Smith for the Administratrix, Appellee,
    cited: 29 An. 711; 38 An. 219; 28 An. 326; 33 An. 330; 26 An. 327.

      Land & Land for Opponent and Appellant
    cited: 33 An. 322; 38 An. 219; 4 An. 146; 36 An. 819; 38 An. 700.
   The opinion of the court was delivered by

Nicholls, C. J.

This case comes up on appeal in the matter of an opposition by S. Levy, Jr., claiming to be a creditor of the succession of N. C. Brownlee, to the tableau of administration filed in that succession by Mrs. N. C. Brownlee, who is the administratrix thereof.

The opponent, who is appellant, urges three grounds of opposition.

As the pleadings relating to the first ground are short and very clearly present the issue involved therein, we will transcribe them.

The first ground of opposition is as follows, viz.: “Respondent avers that N. O. Brownlee, during the existence of the marriage between him and the said Mrs. L. A. Brownlee, insured his life in her favor to the amount of $12,000, in three different companies or associations; that the premiums for said insurance were paid by said N. C. Brownlee out of the funds of the community existing between him and his said wife, and that on his decease his said widow took possession of said three policies, and collected thereon the sum of $12,000, which she retained as her separate property.

“ Respondent further avers that of said premiums the amount of $743.40 was paid to the New York Life Insurance Oo., represented by T. B. Chase, of Shreveport, La., in six annual premiums of $123.90 each; first paid January 9, 1886; the further sum of $188.50 was paid to the Equitable Life Insurance Co., of New York, represented by S. N. Ford, of Shreveport, La.; the said' insurance being for $5000 in each of said companies. And the further sum of $162.55 was paid on a policy for $2000, issued by the Ancient Order of United Workmen, of the city of Shreveport, La.

“ Respondent avers that said Mrs. Brownlee is indebted unto the succession of N. C. Brownlee in the amount of said premiums paid by the community for the use and benefit of her separate estate, and which inured to her separate benefit and advantage.

“Respondent shows that when said policies were issued the said N. O. Brownlee was in embarrassed and insolvent circumstances, and that all or most of the premiums paid by N. C. Brownlee on said three policies were so paid out of moneys borrowed from respondent, which said advances form a part of the present indebtedness of said succession to respondent.

“ Wherefore respondent avers that the said Mrs. L. A. Brownlee is justly indebted unto said succession in the aggregate amount of said premiums, with which opponent prays she be charged as administratrix in her said account.” T. 18-19.

It will be noticed that there is no allegation in the opposition that Mrs. Brownlee has accepted the community of acquets and gains, or that she has in any way made herself liable as the widow in community — none that the community is insolvent, none that the community has been settled and liquidated, either dehors the succession proceedings or within them, and that, as a result of such settlement, the widow has been found its debtor for any amount; none that L. Levy, Jr., the opponent, is a creditor of that community, if any exists. It will be further noticed that there is no prayer for any general settlement of the community, nor any prayer for a judgment against Mrs. Brownlee for any amount as widow in community.

It will not, besides, escape attention that this case presents, neither as to pleadings and prayer nor as to parties, any of the features of a revocatory action.

It might well be that opponent should be a creditor of the succession of Brownlee and yet not be one of the community. It might well happen that the succession of Brownlee should be insolvent and the community not, and that in a general settlement and liquidation of the community, should one exist, Mrs. Brownlee, so far from being a debtor, might be a heavy creditor. The only reference to a community in the pleadings is the allegation that the policies mentioned were taken out during the existence of the marriage between Brownlee and his wife, and that the premiums upon the policies were paid by the husband out of the funds of the community.

Under the pleadings of the opposition as a whole, and under its prayer, these particular averments lose all significance.

The opposition, as it stands, is that of a person claiming to be a creditor of a succession, urging that the administratrix thereof is a debtor to the succession for a specific amount and a special item— that she has failed to make the amount of that indebtedness figure on the tableau as an asset of the succession, and that she should be made to do so.

We are of the opinion that the action of the district judge in rejecting this ground of opposition was correct. The opponent concedes that as between Brownlee and the insurance companies the contracts were legal — that the amounts paid to the companies in premiums by Brownlee were legally paid, as were the payments by the companies to Mrs. Brownlee of the amount of the policies.

There has not been any attack on these contracts or on those payments. It is admitted that contracts perfectly legitimate in their origin have been fully and legitimately carried out and executed.

The only question before this court is whether, as arising from those contracts, Mrs. Brownlee has become a debtor of her husband’s succession. We think not.

In entering into the contracts of insurance Brownlee acted on his own behalf and as a principal, and was so dealt with by the companies. He neither claimed nor pretended nor intended to act either as negotiorum gestor or as agent of his wife. He was not managing her affairs nor dealing with reference to or upon any property of hers in taking out the policies.

The obligations of the assured created by the policies were obligations and debts of the husband not of the wife, and when those obligations were extinguished there was an extinguishment by payment of the husband’s debts and not the wife’s debts.'

But it is said that through these policies the wife has obtained a large amount of money, and that this being so she should reimburse to her husband’s succession, particularly when it is embarrassed, the1 amounts paid out by him and which have so largely contributed to her happiness. Whatever moral obligation she may be under to take this view of the situation is exacted by no legal obligation to do so. Whether Mrs. Brownlee may be considered as having received the amount of policies under donations from her husband or through the operation of stipulations pour autrui, created in her behalf by her husband in the contracts between himself and the insurance companies, the fact remains beyond dispute both under the decisions of the courts and the admissions of opponents that she rightfully and legally received the same.

But the opponent says the succession is entitled to reimbursement under Art. 2408, C. C., under the line of decisions which declare that the community must be credited with debts of husband or wife paid by it (3 An. 611, 6 An. 634), and must be debited with separate funds of either spouse used to enrich it (4 An. 146, 36 An. 819, 38 An. 700), and those which declare that the husband’s creditors may claim his community rights. 41 An. 348, 352.

He particularly relies upon the case of the Succession of Moseman, 38 An. 219.

We have already said that when Brownlee dealt with the insurance companies he was not acting with reference to or upon any property or estate of hers, separate or otherwise, but as a principal; and we have also said that the articles of the code relative to the community have no bearing in this case under the pleadings and prayer.

Assuming as true “that the husband’s creditors can claim his community rights,” there must first be a community and next community rights, and those established, liquidated and enforced in a legal way and contradictorily with proper parties.

We must, under the pleadings and prayer of this opposition, deal with Mrs. Brownlee as if there were no community and as if she were a stranger to any community. Even were matters otherwise, Mrs. Brownlee would be entitled to a full and general settlement of the community, and could not be held liable prior to the liquidation upon any special item at the instance of a creditor of her husband’s succession and on opposition to her tableau of administration.

Even were it true that Brownlee expected and intended (which we have not the slightest reason to suppose he did) that his wife should reimburse him for premiums paid, and were it true that she would be liable to make such reimbursement, it would be impossible for us to say (on the theory of a community) that Mrs. Brownlee owed that community a dollar — non constat, but that the community in liquidation would owe her.

The case of Moseman has no resemblance to this. In the first place, the proceeding there was in reality a direct settlement inter se of two sets of heirs of Moseman, and a partition and settlement of the second community, of which Moseman had been the head.

In such partitions and settlements there are many rights and issues properly raised and determined, in which the mere creditors of the father may have no legal interest and entitled to take no legal part.

In the second place the policies in the Moseman case were taken out for his own benefit when he was a widower, the premiums due were owing by himself individually and personally, but had been paid for out of funds which, as matters had shaped themselves, the children of his second marriage were entitled to have accounted for in the final settlement, and his separate estate ultimately charged in their favor for a portion of the same.

The second ground of opposition is to the payment of four months’ wages to one Lemon, whose duties consisted in gathering and preparing for market the crops belonging to the succession. The necessity of the services and the compensation for the same are not questioned, and it is in evidence that opponent advised and consented to the same. There is no merit in the opposition.

The third ground of opposition is to the attorney’s fee in the succession. The reasonableness of the fee is supported by evidence, which is sustained by the judgment of the district judge before whom all the proceedings were conducted. We see no reason to dissent from his conclusions.

For the reasons herein given it is ordered, adjudged and decreed that the judgment of the court below be and the same is hereby affirmed.


text:
    No. 347.
    St. Louis Southwestern Railroad Company vs. W. B. Jacobs et al.
    1. Parties who liave obligated themselves by contract to procure a right of way for a railroad at their own cost and expense, and who, for that purpose, have caused expropriation proceedings to be instituted by counsel employed by themselves, though necessarily in the name of Railway Oo., are bound to make good to the company the amount o£ the judgment rendered against it in such proceedings for the value of the land and incident damages, as provided by Rev. Stat., Sec. 1181.
    2. In a ease where the railroad bed had been constructed before trial of the expropriation proceeding, ifit appeared that part of the damages allowed resulted from faulty construction by the company, of course defendants would not be bound therefor; but when the pleadings exhibit no such issue, and the opinion and judgment refer to none such, it will be presumed that the damages allowed were only those incident to the expropriation.

      Taylor, J, PPEAL from the First District Oourt, Parish of Oaddo.

      Alexander & Blanchard and SamH. West for Plaintiff and Appellee.

      Wise & Herndon and Bell & Randolph for Defendants and Appellants.
   The opinion of the court was delivered by

Fenner,, J. A contract was entered into between the plaintiff and the defendants, who are citizens of Shreveport, by which the former bound itself to construct a railway from a point on the Arkansas State line to the city of Shreveport, on certain terms and conditions, and within a designated period, and the defendants bound themselves to procure, at their own cost and expense, a right of way of 100 feet width along the said route and to cause to be made and delivered to plaintiff good and sufficient deeds and conveyances thereof.

It is not denied that the plaintiff has complied with all the obligations of its contract.

The defendants also proceeded to execute the contract by procuring the right of way as stipulated over most of the route; they succeeded in obtaining the right of way by private contracts with the owners of the lands at their own cost and expense; but they could not succeed in effecting any private settlement for the right of way over certain plantations which may be here designated as the Hollingsworth places.

It, therefore, became necessary to resort to expropriation proceedings. These proceedings were necessarily instituted in the name of the railway company, but they were really conducted by and on behalf of defendants, who employed attorneys to prosecute the same.

They resulted in judgments expropriating the right of way, but condemning the railway company to pay to the proprietors the value of the land and damages, as provided in Sec. 1481 of the Revised Statutes and Art. 156 of the Constitution of the State. The defendants failing to satisfy these judgments, the railway company, as the judgment debtor, was compelled to pay them, and the present action is brought to recover from the defendants the amount thereof.

It is not necessary to discuss the nature and binding effect of the contract involved and the extent of the obligations of the parties thereunder, because the defendants admit their obligation to procure the right of way by expropriation if they could not otherwise obtain it, and also admit their liability to pay the judgments obtained against the railway company to the extent both of the value of the land expropriated and of the incident damages allowed under Sec. 1481, Revised Statutes. This is certainly the full extent of their legal obligation.

It appears, however, that under some arrangement the railway company had actually constructed the road before the trial of the expropriation cases; and the defendants claim that part of the damages allowed resulted from injuries inflicted by the unskilful and improper construction of the road, and, therefore, from the company’s own fault, and that, for such damages, defendants can not be held.

The soundness of this, as a legal proposition, can not be disputed; but an examination of the records in the expropriation suits fails to convince us that any such damages entered into the allowance made in the judgments.

We scrutinize the pleadings of the defendant owners without discovering any complaint of improper construction. The damages claimed are only those naturally incident to the construction of any railroad, such as dividing the plantations into two parts, severing one from the other by the road bed and embankment, separating cabins from tracts intended to be cultivated by their renters, making gin houses, barns, cabins, etc., more liable to fire from passing locomotives — opening a public thoroughfare for thieves and tramps —interfering with natural and artificial drainage £ by compelling defendants to replace and revise their entire system of turn rows,’-' shutting out their gin house, barns, etc., from the river bank and public road by the elevated road bed and thus interposing an obstacle to their ordinary communication with market in Shreveport.

All these allegations are couched in the future tense and would be just as appropriate had the road not yet been built. There is no allegation of faulty construction causing unnecessary damage, and we are not satisfied, even from the evidence, that damage from such cause entered into the computation. There is no reference to it in the opinion of this court, which finally disposed of the expropriation cases. Railway Company vs. Hollingsworth et al., 42 An. 749.

Defendants, having the management of said proceedings through counsel employed by themselves, and aware that they would be responsible for judgments to extent of value of land and proper damages, should have taken some pains to discriminate any damages for which they intended to plead an exemption. They have not done so, and we are not satisfied that any were allowed for which they are not justly responsible.

Judgment affirmed.