text:
    No. 10,235.
    H. W. Stackhouse et al. vs. M. J. Zuntz et als.
    Writs of seizure and sale, unlike writs of fi fa, aro not returnable within a fixed delay.
    Tlioy remain in tlie hands of tho sheriff until satisfied in whole or in part, or ordered by tho court, or tho plaintiff’, to bo returned.
    Such a writ, if returned in court by tho sheriff’ after an injunction and before seizure, does not lose 'its efficacy and, al’tor tbo dissolution of the injunction is valid authority for further proceedings under it.
    By unduly returning the writ, tho sheriff cannot deprive tbo seizing oroditor of any of his rights under it, no more than lie could divest him of his rights under the executory procoss decree. Both are his property.
    Ko aliax writ of seizure and sale is necessary in such case. The sheriff may simply possess himself with the writ, by withdraw ing it from the files of the case ip co.urt.
    Misnaming tlie court, from which a writ of fieri facias issued, under which a seizure and sale are made, docs not vifiate the proceedings and the adjudication, when the advertisement and deed contain sufficient data to ascertain which the court is, under whose judgment the execution issued, particularly where the writ under which the sheriff' must have acted and of which ho must have preserved copy, is in the record, although it is not shown conclusively that he did act under such writ and did retain such copy and where the objections are made by parties to the record, who had notice of the proceedings — and who did not object.
    A judgment dissolving an injunction with damages rendered against H. Stackhouse, a dead man, eo nomine, is a valid judgmont binding on his succession and legal representatives, who, previous to the judgmont wore made and became parties to the proceedings. The error is clerical and does not vitiate the judgmont and sales under it.
    An adjudicateo at a sheriff’s sale, who exhibits a valid judgment, execution and deed, and who has remained in the undisturbed possession of the property for more than ton years thereafter, as ostensible owner, has a good title to the same and must be protected in his rights to it.
    PPEAL from tlie Civil District Court for the Parish of Orleans. Houston, J.

      Farrar, Jonas cB KruttsoMU, for Plaintiffs and Appellants.

      Gurley & Mellen, and Hornor & Lee, for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action to annul sheriffs’ sales of two plantations, in the possession of defendants as testamentary heirs of the original adjudicateo, and to operate a partition of the same by licitation.

The main ground of attack is, that the writs under which the plantations were seized, advertised and adjudicated, are absolute nullities; in consequence of which no title was divested and passed.

The writ, which issued under a decree for executory process against one of the plantations and by virtue of which the property was adjudicated, is said to be null, because it was returned by the sheriff before any seizure had been effected and because, after the injunction which had arrested it had been dissolved it was reissued without authority and executed, without observing the essential formalities required by law.

The fi fa, under which the other plantation was adjudicated is said to have been unwarranted by any judgment from the court in whose name it purports to have issued and that, if there be any judgment, it is absolutely void.

The prayer is for the nullity of such judgmont of the sheriffs’ adjudications ■, for the recognition of the plaintiffs as owners of the undivided half of each plantation, and for a sale to effect a partition.

Tlie suit lias another object — a share in the revenues of the plantations, put down, up to a certain date, at $400,000; but by agreement, the issue is presently restricted to the question of title vel non.

The defenses set up are numerous: the general issue, the validity of the judgment, writs, proceedings and sales attacked, res judicata, estoppel, prescription, want of tender, divestiture of any title which plaintiffs may ever have had, an independent title in the author of defendants.

From an adverse judgment the plaintiffs appeal.

The dominant facts are the following:

J. E. Zuntz was a creditor of William and Haywood Stackhouse for $50,000, secured by mortgage on a plantation belonging to them and known as Bellecliasse.

On February 6, 1867, to satisfy that debt, he obtained executory process from the Secoud Judicial District Court for the Parish of Plaque-mines, in which the property was situated and the defendants were domiciled.

On the 18th following, before any seizure had been made, the defendants obtained an injunction arresting further proceedings.

On November 15th of the same year, Zuntz obtained an alias writ against the crops on the place.

On the 29th following, by consent, the case was transferred from the Plaquemines Court to the Fifth District Court for the Parish of Orleans for determination of all issues presented by the injunction, while the alias writ was abandoned on a conditional bond by the defendants to represent the crops.

The injunction was dissolved by the Fifth District Court, with twenty per cent damages and eight per cent intrust.

From the judgment then rendered, an appeal was taken to the Supreme Court, pendiug which Haywood Stackouse died (December 18, .1809), his widow and heirs being made i>arties, and judgment was rendered reversing that appealed from and remanding the case.

On anew trial, the lower court rendered a like judgment of dissolution with damages, etc., which on review was affirmed.

The sheriff then, under the writ of seizure and sale which had been unfettered, levied on the Bellecliasse plantation and under a fi fa, seized the other place known as the Villéré plantation.

Both were advertised, the former under the seizure and sale writ, the latter under the fi fa. Tlicj’ were appraised and on the day fixed for the offering, they were adjudicated to J. E. Zuntz; the first, on February 7, 1874 for $83000, the second; on June 6, of the same year for $46761, both amounts being retained by Mm as seizing creditor for much more.

On November 29, 1881, Zuntz sued the representatives of Haywood Stackhouse and the syndic of William Stackhouse, who had previously gone to bankruptcy, to revive the judgment dissolving the injunction and awarding damages.

To tlxis action the defense was made that the judgment sought to be revived was an absolute nullity, because rendered against a dead man, Haywood Stackhouse, eo nomine.

The lower court declined to revive the judgment, but on appeal the judgment was reversed and the judgment was revived. 36 A. 529.

From the dates of the adjudications of the plantations to him, Zuntz continued in possession, as ostensible owner, until his death, which occurred on February 7, 1885.

By his will, he instituted M. J. Zuntz usufructuary and J. E. and S. II. Zuntz his heirs.

On June 30, j 885, the ])resent suit was instituted against these beneficiaries, as the representatives of J. E. Zuntz, for the purposes heretofore mentioned.

I.

The objections to the validity of the adjudication of the DeUeehasse plantation are grounded on the nullity of the writ of seizure and sale which was in the sheriffs’ hand and under which he pretends to have acted. .

That writ is so charged:

1. Because it was returned by the sheriff to the court which issued it, some three months and a few days after its date, before any seizure of the property therein described.

2. Because, if not so returned, it ceased to have any vitality, when Haywood Stackhouse died.

The writ is dated February 8, 1867. It was received by the sheriff on the 15th following, who on the next day, served copies of the petition and summonses and notices of seizure and sale on William Stackhouse in person and on Haywood Stackhouse, by leaving same at his last residence, suspending further proceedings, in consequence of the injunction arresting ils execution, on the 18th of the same month and certifying to those facts on the 20lh following.

At foot of the sheriffs’ statement, there is a filing of May 18, 1867, signed by the clerk of the Second Judicial District Court for the Parish of Plaquemines.

There is nothing beyond this, to show that the sheriff returned the writ into court; but, conceding that, under some interpretation of the law regulating his duties, he thought ho was bound to return the writ to the court, to inform it of his acts' and doings under it up to the time when the injunction issued and to enable parties to use it and his return thereon that far, — it does not follow that he has thereby put it out of life.

He could not have done so, had such been his intention, for, the writ was the property of the plaintiff in the suit, who was entitled to have it to remain in the sheriffs’ hands for execution, until satisfied in whole, or in part, or returned into court, either by order of the creditor himself, or of the court issuing it.

A writ under executory proceedings is not, like a fieri facias required by law to bo returned within a fixed delay. C. P. 042. It remains in the hands of the executive officer, until satisfied, or duly ordered to be returned as just stated, and it is then only that it expires.

So that, whenever by accident, error, or oversight, it is handed back by the sheriff to the clerk of the court and by the latter endorsed, before execution, satisfaction or due return, it remains dormant, subject to return to the sheriff for further action under it.

It therefore follows that, as soon as the injunction was finally dissolved, the sheriff had a right to possess himself of the writ aud to proceed to its execution.

It ’is not correct to say that, anyhow the writ ceased to have any vitality and expired, when Haywood Stackhouse departed this life, because it was then an unexecuted writ, one under which no seizure had been made and which was incapable of execution in that form, against his estate.

It is as settled by the law and jurisprudence of this State, as any rule of practice can be, that a writ of seizure and sale .may issue alike against the property of a living, or that of a deceased person. C. P. 734.

If therefore a creditor institutes executory proceedings against the property of a living debtor and that debtor subsequently dies, it is perfectly legitimate and lawful to prosecute the same thereafter, on making the legal rox>reseutatives of the deceased, parties.

The proceedings do not abate by the death of one of the puirties.. They continue between the surviving pnvrty and the heirs of the one deceased, in the same manner that actions are permitted to do. C. P. 21; 3(J1.

Under the circumstances, it was not therefore, either necessary or useful, to obtain an alias writ, or any order to verify the original one.

It was well hold that the sale of a deceased husband’s property, under executory process, is invalid, when the proceedings are not contradictarily carried on with the legal representatives of the succession, or when the heirs and others concerned in the ownership have not been made parties. Germaine vs. Mallerick, 31 A. 371; Surgi vs. Colmer, 22 A. 20.

From a further endorsement on the writ of seizure and sale, it appears that, on December 22, 1873, the sheriff seized the Bdlediasse plantation and, after notice to William Stackhouse at his domicil and to Haywood Stackhouse by service on Mrs. Stackhouse in person, he advertised the same and after it liad been duly appraised, he adjudicated it to J. E. Zuntz, on the 7th of February, 1874, for $33,000.

An objection is made to the mode in which the notices were served by the sheriff, namely: that they were served on Mrs. Stackhouse.

It is perfectly true that the sheriff ought to have stated the capacity in -which Mrs. Stackhouse stood in the matter ; but his omission to have done so, cannot prejudice the validity of the sale, which cannot be jeoparded by such-derelictions on his part, as it is proved aliunde, that at the time, Mrs. Stackhouse was the widow in community of Haywood Stackhouse and the duly qualified and commissioned tutrix of the children born of their marriage, all of whom were then under age. Her letters of tutorship are dated June 2, 1870.

In the case of Germaine, 31 A. 371, the sale under executory process was annulled because the proceedings were ■ conducted contradictorily with the wife of Mallerich, while he was living and absent and after his death; she being at the time, neither his agent, nor the tutrix of their children ; and a similar ruling was made in the Surgi case, 22 A. 20, for kindred and stronger reasons.

It may be useful to reiterate that Mrs. Stackhouse as widow in community and as tutrix, had been duly made party to the executory and injunction proceedings in the Supremo Court ponding the first appeal from the reviving judgment: on May 31, 3870 and that she was appellant from the second judgment rendered by the Fifth District Court, on March 20th, 1872, and signed the bond of appeal, as widow in community and as tutrix, along with certain of the heirs; facts which were found and stated by this Court, in the opinion rendered on the second appeal in the suit to revive the judgment disssolving the injunction, wit!) damages. 36 Ann. 532, Stackhouse vs. Zuntz.

II.

Tt is next claimed that the adjudication of the Villero plantation is a nullity, because it took pi ace under the authority of a writ of fieri facias, tlie issuance of which was authorized by no judgment, either from the parish court, or the Second Judicial District Court for the Parish of Plaquemines.

The deed which the sheriff delivered to Zuntz as adjudicatee of that plantation recites that by virtue of a writ of fieri facias to me (him ) directed by the Honorable the Parish Court in and for the Parish of Plaquemines, at the suit of Second Judicial District Court of Louisiana for the Parish of Plaquemines, at the suit of W. and H. Stackhouse vs. James E. Zuntz, No. 906 of the docket of said court, after having fulfilled and complied with all the previous legal requisites, did seize the following property, to wit,” etc.

The newspaper, in which the advertisement of sale was published by the sheriff, recites that “ by virtue and in obedience to a writ of fieri facias to mo (him) directed by the Honorable the Second Judicial District Court in and for the Parish of Plaquemines in the above entitled suit, I have seized and will proceed to sell,” etc.

The caption of the advertisement is; “ W. and H. Stackhouse vs. James E. Zuntz, Second Judicial District Court in and for the Parish of Plaquemines, No. 906.”

There is in the transcript a writ of fieri facias, issued in the name of the Fifth District Court for the Parish of Orleans, in the case of W. and H. Stackhouse vs. James E. Zuntz, No. 18,850, of the docket of that court, dated November 11th, 1873, addressed to the sheriff of the Parish of Plaquemines, commanding him to seize and sell the property of the plaintiffs and their surety, on the injunction bond in solido and cause to be made twenty per cent damages on the amount of the judgment aforesaid, say: fifty thousand dollars, together with eight per cent interest, as allowed in the order of seizure and sale, and also $606 costs, and his own costs, to satisfy a judgment rendered against said plaintiffs and their surety on the injunction bond in the said Fifth District Court for the Parish of Orleans, 20th day of February, 1872, in favor of James E. Zuntz, and how he shall have executed this writ, to make returns to said court, within seventy days, according to law.

It appears that on the 12th of December following, this writ was received by the sheriff, and that on the 19th of the same month, he made a seizure under it, appointing and placing a keeper on the property seized (the Bellechasse plantation).

It is an important fact that the original proceedings for executory process were docketed in the Second Judicial District Court for the Parish of Plaquemines under No. 906, and that, after the injunction had' been obtained arresting the writ, under a petition bearing the same number, the whole record was transferred to the Fifth District Court for the Parish of Orleans, by which the issues raised were to be determined, the executory proceedings were docketed,under No. 18,719, and the injunction suit under No. 18,850, although apparently they were subsequently more or less confounded, — the judgment dissolving the injunction, however, being rendered in the record bearing No. 18,850.

It is apparent that the fieri facias mentioned in 'the advertisements and in the sheriff’s deed, could not liavo been and was not, issued by either the, Parish Court, or the Second Judicial District Court for the Parish of Plaquemines,for theplainroason,that the proceedings never wore pending before the first named court, and that they were, subsequent to the injunction, transferred, from the District Court in Plaquemines parish, to the Fifth District Court for the Parish of Orleans, and that neither the Parish Court nor the District Court of Plaquemines, could or did render any judgment therein, on which the fieri facias alluded to by the sheriff could have issued and that neither issued an execution.

The only court that could have rendered and that did render a judgment in those proceedings — múginally No. 906 of the District Court of Plaquemines, — on which execution could issue, was necessarily the Fifth District Court for the Parish of Orleans.

Tt is, therefore, clear that the advertisements and the deed, misnamed the court which issued the fi fa under which the sheriff acted; but this error, patent on the face of the papers, could not prejudice the validity of the proceedings, because, by erasing the words, Parish Court, and leaving the title of the Second Judicial District Court for the Parish of Plaque-mines, the title of the suit and the number given, the fieri facias is readily connected through No. 906, with the case transferred to and decided by, tlio Fifth District Court for the Parish oF Orleans, by which the judgment dissolving the injunction with damages was rendered and under which the fieri facias issued.

The record does not, therefore, show that any fi fa was ever issued by the Parish Court, or the District Court for the Parish of Plaque-mines j but it establishes that one was issued by the Fifth District Court for the Parish of Orleans, on the judgment dissolving tlio injunction with damages, dated November lltli, 1873, and which must have been and was the fieri faeias mentioned in tlie advertisements and in the deed to 7axntz.

The presumption, under the exceptional circumstances of this case, complicated as it is, by the disappearance of transcripts from the clerk’s office of this court, and of original documents attached thereto which might have proved of great service and value in the determination of this controversy, begun some twenty years ago and more, is, that the sheriff of the Parish of Plaquemines did his duty, as pointed out by law, and that, having, after the first seizure made of tiro Bellochas'e plantation, seized the Villeré plantation, he, on the expiration of the fieri facias from the Fifth District Court for the Parish of Orleans, retained a copy of it ( C. P. 042, par. 4) and under it, continued the proceedings for the seizure, advertisement, appraisement and sale of the Villeré plantation, consummating them, by the adjudication of it on Juno 6th, 1874, to the seizing creditor, J. E. Zuntz, for $4676, which ho retained.

It hence follows, that the writ of fieri facias, undor which the sheriff proceeded, was that issued by the Fifth District Court for the Parish of Orleans, on the judgment dissolving the injunction with damages.

The plaintiffs, however, contend that oven if such bo the case, the judgment is itself a nullity, because rendered against Haywood'Stack-house, eo nomine, who was at the time a dead man.

When the decree of seizure and sale against the Bellechasse plantation was rendered and enjoined, and when the injunction was dissolved with damages by the Fifth District Court, Haywood Stackhouse was living, lie died on December 18th, 1869, after taking an appeal from the dissolving judgment awarding damages.

Before the Supremo Court passed upon this appeal, namely: on the 31st of May, 1870, his widow, as surviving spouse in community and as tutrix of his children, who were all minors, had been made party to the proceedings.

It is only after she was thus made party, that the Supreme Court reversed the judgment and remanded the case.

The order making her, in both capacities, party to the proceedings, had for its effect, to retain her as such party, for all further proceedings in the cases original and injunction.

On the new trial by the lower court, in pursuance of the remanding of the case by the Supreme Court, a judgment was rendered on the 20th of February, 1872, signed on the 5th of March following, contradictorily with her as such party, condemning both William and Haywood Stackhouse and the surety on the injunction bond to the 20 per cent damages.

On March 13bli, 1872, considering that the judgment rendered against Hayioood Stackhouse, eo nomine, was one against his succession and its representatives, and that they were aggrieved thereby, Mrs. Stack-house, as widow in community and as tutrix of four of her minor children, joined by the fifth child who had married and was assisted by her husband, obtained a suspensive appeal on giving a bond for $30,000, which was afterwards furnished and signed by them all.

On the trial of the case on appeal they wore represented by counsel and, after hearing, this Court affirmed the judgment dissolving the injunction with damages.

Subsequently, as already stated, proceedings were instituted for the revival of this judgment, and the lower court rendered a judgment which was reversed on appeal and the revival decreed.

In those proceedings, the defence now urged was made, that the judgment sought to be revived was an absolute nullity, because it was rendered against Haywood Stackhouse, eo nomine, ho being at the time, a dead man. The defence did not prevail, and an application for a rehearing, though vigorously pressed, was refused.

It is unneessary to determine whether or not that defence was then passed upon, so that it cannot in the present action be considered and determined; but the fact is that it did not prevail, as the judgment sought to be revived, was not pronounced to be an absolute nullity, but was revived by this Court on appeal.

Treating the question, therefore, as res nova, there can bo no doubt that the judgment attacked, rendered as it was, is a perfectly valid judgment affecting the succession and legal representatives of Haywood Stackhouse, who were party to the suit at the time itowas rendered.

True, it would have been more regular had it been rendered expressly against William Stackhouse and the succession and legal representatives of Haywood Stackhouse; but this irregularity, which is nothing but a clerical error, is not such as can vitiate radically the judgment, which must consequently bo interpreted and produce its effects, as affecting and binding on the succession and the legal representatives of Haywood Stackhouse.

From that standpoint, it follows that the judgment, being a valid judgment against the succession and representatives, it could servo as a foundation for the issuance of a writ of fieri facias to enforce the collection of the amount which .the plaintiffs in injunction had been condemned to pay.

Had not the widow as widow in community and as tutrix, been a party to the record at the time the judgment was rendered, the case would have presented quite different features.

If it were necessary to add any other reasons to maintain the validity of the adjudications attacked, it would perhaps be sufficient to refer to Articles C. P. 612 and R. C. C. 3543, which have a bearing to put a term to this controversy.

While it is true, that the nullity of a judgment rendered against a party without his having been cited, or by an incompetent judge, even if all the formalities of the law have been observed, may be obtained, could it be asked, where the defendant was present in the parish and yet suffered the judgment to be executed without opposing the same, C. P. 612, and where three times five years and more have elapsed, since the time at which a public sale was made, by one authorized to sell at public auction, which might have been assailed on account of informalities connected with or growing out of such sale? R. C. C. 3543.

The views which we have expressed towards the validity of the two writs and of the judgment and sales attacked, render it useless to consider the other defences set up by the legal representatives of James E. Zuntz.

Judgment affirmed.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 10,218.
    W. C. Raymond et al, Commissioners, etc., vs. E. C. Palmer et als.
    In law the component parts of a firm are distinct beings from the firm, as well as from each other, and their rights and liabilities must fie testod and adjudicated accordingly.
    Hence a bank can claim no lien or privilege on the deposit of a partner made on his separate account, in order to set off the same against a debt owing them by the firm.
    The silence of a principal aftor knowledge of an unauthorized or illegal act of his agent, is equivalent in law to an acquiescence in, and ratification of, the act or conduct of the agent.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      W. 8. Benedict and Bouse <& Grant for Plaintiffs and Appellants.

      Henry O. Miller, for Defendant and Appellee:
    The right of the depositor or customer to check upon the amount properly to his credit in the bank, is not in the least affected, nor is the corresponding obligation of the bank to pay the check in any degree modified by the fact, if it be the fact, that the customer’s commercial firm account is overdrawn, for the individual and the firm account are soparato, disconnected and distinct. See Morse on Banks and Banking, page 48, Chapter on depositors and customers.
    Hor is the depositor’s right to draw or the obligation of the bank to pay such check, modified or affected in any manner by the fact, if it be a fact, that there is an indebtedness of the depositor to the bank, arising from the alleged use or conversion by tlie depositor of property claimed to belong to the bank, or arising from other transactions between the bank and the depositor, for no bank can rofuse to pay the check of its depositor or customer drawn upon his credit, because of any indebtedness, real or supposed, the bank may claim to bo duo to it by the depositor. See Civil Code, Article 2956 ; Breed vs. Purvis, 7th Ann., page 53; Morgan vs. Lathrop, 12tli Ann., page 257; Murdock vs. Citizen’s Bank 23d Ann., page 113; Gordon vs. Muchler, 34th Ann., page 604.
    The pledgee cannot acquire the pledge by a private sale, and all the benefit ho can ever derive from any such sale is the application of the proceeds of the sale fairly made, to pay the pledged debt. Jones on Pledges, Section 035; Story on Agency, Section 207; Richardson vs. Mann, 30th Ann., page 1060; Adams & Co. vs. Coons et al, 37th Ann., page 305. Hence, if the Louisiana Savings Bank, pledgee of the stock in controversy in this case, by the resolution of its Board of Directors directed the private sale of the stock, and if the bank received and applied to the pledged debt the full proceeds of such sale fairly made, for the full market value of the stock, then, the bank, deriving all the benefit it could obtain from the pledge and sale thereof, and sustaining no injury in the premises, can make no complaint whatever of the sale, and sue for the stock, as it does in this case, on the ground that the purchaser at the private sale was Palmer individually, he being at the time the president of the bank.
    Least of all, can the bank complain of the sale, holding on, as it does, to the proceeds of the sale applied to pay the pledged debt.
    The owner of the pledged property may, under certain circumstance, complain of the private sale of his property, as in the case where the pledgee buys and makes a speculation by an advance in price, or where the sale is unfair or for an inadequate price, but even the owner is estopped from demanding the stock, unless, seasonably, lie makes the demand and tenders the amount of the debt. Besides, the owner in this caso makes no claim. Lacomb vs. Eorstall, 123 XT. S., 570. _
    Bayne; Denegre & Bayne? and Farrar, Jonas <& KmttschniU, for Moore, Hyams & Co., Defendants and Appellees:
    I.
    Palmers’s Case.
    x. Palmer, individually, was a creditor, not a debtor, of the bank when the stock was purchased by him. The solvency of his account is fully shown.
    2. Even where a bank lends, on pledge of securities or otherwise, to an overdrawn depositor, it is bound to pay such depositor’s checks to the amount of the loan, and cannot bo permitted to compensate the debt on the loan with the depositor’s overdraft, and tliab a deposit cannot bo extinguished by compensation with a debt of a different character, is too clear for argument. C. C. Art. 2210; Holán vs. Shaw, 6 Ann. 46; Morgan vs. Lathrop, 12 Ann. 257; Breed vs. Purvis, 7 Ann. 53; Hancock vs. Citizens’ Bank, 32 Ann. 590.
    3. Palmer’s purchase of the stock from the bank was regular, at fullest market prices, through the cashier, was duly reported to the board, and never repudiated by it.
    4. A condition precedent to such repudiation would be the return by the board of the amount received by the bank from the repudiated transaction.
    5. Mathers, the pledgeor and real owner of the stock, has never repudiated the purchase by Palmer; but, on the contrary, has ratified and affirmed it.
    6. An invalid contract by an agent will be held as ratified by the principal after a tacit acquiescence and long silence, and this rule applies to a sale of stock by a pledgee to himself. Lafitte vs. Godchaux, 35 Ann. 1161.
    7. Even if Palmer has no title, the commissioners'cannot recover, because they represent the pledgee alone, and not the pledgeor. The latter must assert his own rights; the comissioners represent the creditors of tho bank ut universi and not ut singuli. Hence, even if we admit that Mathers is a creditor of the bank, they do not represent him. Raymond vs. Palmer, 32 Ann. 277.

      8. One claiming property as owner cannot recover as pledgeor. The allegata and the probata must agree. Nugent vs. Buisson, 35 Ann. 108.
    II.
    Moore, Hyams & Co.’s Case.
    1. The commercial law, as settled in other States of the Union, is uniformally followed hy the courts of this State, which oven disregard the Civil Code where inconsistent with the general commercial jurisprudence. Wagner vs. Kenner, 2 R. 124; Thompson vs. Mylne, 4 Ann. 210; Dubuckvs. Cíodchaux. 6 Ann. 781; Story vs. Hope Insurance Company, 37 Ann. 257.
    2. The provisions of Article 2453 C. C., do not apply to stocks, bonds, notos or other commercial property or evidences of debt.
    3. The doctrine of the nullity of a sale as to a purchaser pendente lite does not apply under the general commercial law to shares of stock in a corporation. Lowell on Transfer of Stock, No. 67; Dovey’s Appeal, 97 Pa. Stat. 153 ; Leitch vs. Wells, 48 N. Y. 585, and especially 615; County of Warren vs. Marcy, 97 U. S. 96; Orleans vs. Platt, 99 U. S. 683; Holbrook vs. N. J. Zinc Co., 57 N. Y. 616 and 617.
    It is universally held not to apply to negotiable securities, and this court has repeatedly placed stocks in thé same category. Factors’ and Traders’ Ins. Co. Case, 31 Ann. 149, and especially 151; Pitot vs. Johnson, 33 Ann. 1287; R. C. C. 3158.
    4. The prayer of the petition being in the alternative, the judgment against Palmer (if any) must necessarily be in the alternative for the stock or its value; and plaintiffs have, by their pleadings, failed to keep the stock in gremio legis. They have, on the contrary, expressly assented to its removal from the custody of the court, and to a judgment for its value in lieu of the stock itself.f
    5. The negligence of plaintiffs in failing to make the Lottery Company a party to this suit until many years after its inception, and after the stock had been sold for years, facilitated the acquisition of the stock by defendants as bona fide purchasers; and now estops plaintiff from claiming the stock. A party who stands by and allows another to deal with property as his own cannot dispute the right of one whom he has assisted in deceiving. 2 Story Eq. No. 1537; 2 Phillips Ch. R. 123; 10 A. & E. 90 ; 5 Johns. Oh. 272; Orleans vs. Platt, 99 U. S. 682.
    6. The Lottery Company was a necessary party to a petitory action for' the stock, and in its absence no lis was pending as to the stock, of which any one, even on plaintiff’s own t theory, was bound to take notice. Kendig vs. Dean. 97 U. S. 423.
    7. Moore, Hyams & Co. are not shown to hold any of the original 177 shares of stock; they prove conclusively that they actually transferred to other parties all but 59 shares, and these were so commingled with other stock that it is impossible to tell what became of them. As to all but 59 shares they are clearly not responsible; as to these 59 shares they are not responsible, because of the laches of plaintiffs, who must suffer, if any one.
    8. If the plaintiffs recover of Moore, ílyams & Co., then the latter are entitled to judgment against the Louisiana Lottery Company. Moore, Hyams & Co. purchased in the usual customary way and parted with their money solely on the faith of a certificate in their name issued by the Lottery Company, and only after the issue of the certificate. A certificate of stock in a corporation, under the corporate seal and signed bv the officers authorized to. issue certificates, estops the corporation to deny its validity as against one who takes it for value, and with no knowledge or notice of any fact tending to show that it has been irregulai-ly issued. The purchasers of stock are not bound to look beyond the certificate, or to examine the books of a corporation to ascertain the validity of the transfer. Lowry vs. The Formers’ Bank, Taney’s Decisions, 310; Honold vs. Meyer, 36 Ann. 585; Davis vs. Bank of England, 2 Bing 33; Morawitz on Private Corporations, sec. 210.
    9. The action of plaintiffs is barred by the prescription of three years under C. C. Art. 3506.

      Thos. J. Semines and Joseph P. Ilornor for the Louisiana State Lottery-Company, Defendant and Appllee.
   The opinion of the Court was delivered by

Poché, J.

Plaintiffs brought this suit as commissioners of the “ Louisiana Savings Bank and Safe. Deposit Company” in liquidation, to recover 177 shares of Louisiana Lottery stock, alleged to have been the lawful property of said corporation, on the 27th of May, 1879, when said stock was illegally pledged, as his property, to the -People’s Bank, by E. C. Palmer, then the president of the Louisiana Savings Bank. At the instance of the commissioners the pledged stock was sequestered.

On motion of Palmer, the sequestration was bonded on the 18th of February, 1880, on a bond of $8585, which was then the market value of the stock after deducting $10,000, the amount for which it had been pledged by Palmer, the stock being then worth $18,585.

On the 24-th of February, 1880, the stock, which stood in the name of Palmer on the books of the Lottery Company, was sold by him, through a broker, to Moore, Hyams & Co., for the sum of $22,125, at the rate of $125 a share of a par value of $100.

In his answer, Palmer claimed that ho was the true owner of the stock at the time that it was pledged by him to the People’s Bank.

He avers that the stock had been originally pledged to the Savings Bank by one John Mathers, Jr., to secure the latter’s indebtedness to the bank, accompanied by the customary form of transfer in blank, followed by a subsequent transfer to Palmer, to be held by him, for the benefit of the bank, as pledgee. He then avers that by resolution of the Board of Directors, under date of March 31, 1879, he was authorized and directed to sell said stock at its market value, and that after repeated and vain efforts to obtain a better price, ho took up the stock for himself at $50 a shaye, making the total price of $8850, and which was the highest obtainable, which amount was paid by him to the bank, all to the full knowledge of the directors, which sum tubs paid by him was credited to the account of John Mathers, Jr., the pledgeor.

The suit was instituted on the 18th of November, 1879. Palmer’s answer was filed on the 3d of December following, from which time no steps were taken and no further proceedings were had in the litigation until the 4th of February, 1887, when plaintiffs filed an amended petition, making the Lottery Company a party, praying for dividends in the sum of $250,000, and reiterating .their original demand against Palmer and against the People’s Bank. '

On the 19th of March, 1888, plaintiffs filed a second amended petition for the purpose of bringing into court the firm of Moore, Hyams & Co., the purchasers of the stock from Palmer; judgment was asked against them for the restitution of the 177 shares of stock, and in default of the delivery of the same, for judgment against the firm at the rate of $1000 a share, alleged as the then market value of the stock, as well as for dividends received by them thereon.

The defense of that firm was a general denial, coupled with the aver ment of their good faith in the purchase of the stock, which they acquired in open market from persons in the habit of selling such things, before paying which they saw that the same had been duly transferred to them on the books of the company. The answer- ended with a call of the Lottery Company in warranty.

As the record shows that the People’s Bank lias been reimbursed the amount of its loan to Palmer, that corporation is thus stripped of all interest in the controversy, and is, thereof, practically out of the case.

Judgment was rendered in favor of plaintiffs against the defendant Palmer in the sum of $18,530, as the value of the stock on February 18, 1880, with legal interest from that date, with lien and privilege on the property sequestered, so far as represented by the forthcoming bond given to release the sequestration, and in all other respects the judgment went in favor of all the other defendants.

Palmer has appealed from the judgment against himself, and plaintiffs appeal from the entire judgment.

Considering the restricted issue presented by the pleadings, an immense mass of testimony and of documentary evidence comes up to swell the voluminous record in this case, in which an unprecedented latitude was’ allowed to plaintiffs’ counsel in a tedious investigation of complicated matters, accounts and even of gossip which had not the remotest bearing on the true issues of the controversy, and which our duty compelled us to examine in our search for the truth. After a patient and painful labor to separate the chaff from the grain, we find the following as the salient, uncontested facts bearing on the issues presented for decision:

The 177 shares of stock in suit were the lawful property of 'John Mathers, Jr., who pledged them to the Louisiana Savings Bank and Safe Deposit Company to secure two loans aggregating together the sum of $12,000, represented by two notes payable on demand, and long past due on the 31st of March, 1879, the day on which the Board of Directors, by resolution, instructed their president (who was E. C. Palmer, the principal defendant herein) “to realize on that stock” and on other values enumerated in the resolution. The pledge included the authority to the pledgee to sell the stock at public or private sale and without recourse to legal proceedings for said purpose.

At that time the stock of that company was as low down as it had ever reached since the company had been put into operation.

By an Act of the Legislature, passed during the session of 1879, and approved on the 27th of March of that year, the charter of the Lottery Company had been repealed, and great consternation prevailed among all the holders of its stock, to such an extent that for a few days there was no market at all for such stock.

At that juncture the Savings Bank was in great financial distress, soon culminating in disastrous insolvency, which led to the closing of its doors on the 30th of June of that year.

It is thus apparent that the Board of Directors were impelled by two combined and imperious reasons to dispose of that stock. Towards the end of May, owing to well known causes, useless to enumerate here, the stock of the company had somewhat recuperated, and was quoted on the market at $49 to $50 per share.

The stock involved in this case was repeatedly thrown on the market, without an offer up to $50 a share, from the 31st of March up to the 27th of May, 1879, when Palmer, the defendant, concluded to take it for himself at that, which was the highest market price.

Ón the same day he pledged it to the People’s Bank to recover his note of $10,000; and on the same day he deposited to his credit in the Savings Bank, the amount which he had realized on his note, to-wit: $9573 75. On the 29th of May he drew his check for $8850 to the order of the cashier of his bank, in payment of tlio stock in question, and on that day that amount was credited on the books of 'the bank, to the account of John Mathers, Jr., with a corresponding debit to the deposit of E. C. Palmer, which on that day showed a balance of $25,406 25 in his favor as a depositor.

Owing, doubtless, to the enactment by the Constitutional Convention of an ordinance known as Article 167 of the Constitution, and of the adoption, on the 2d of December, 1879, of that Constitution by the people, the value of lottery stock began to appreciate very rapidly, and by the 18th of February, 1880, when Palmer bonded plaintiffs’ sequestration, it was quoted on the market at $105 a share, on which basis the amount of the forthcoming bond was predicated. By the 24th of that month that stock was quoted at $125 a share, and it was on that day and at that price that it was sold by Palmer’s broker to Moore, Hyams & Co,

And by the time that the judgment in this case was rendered, in July, 1888, that stock had reached the phenomenal value of $1000 a share.

It also appears that John Mathers, Jr., the original owner, of the stock and the pledgeor thereof, had full knowledge of the transactions hereinabove recited, and that he made no objection. In April, 1881, Mathers made a voluntary surrender of his property under the insolvent laws of this State, and in his schedule of assets he entirely failed to include, or make any reference to the stock in question, and in the statement of his liabilities he acted upon the condition of his account with the bank as affected by the credit of $8850 arising out of the sale of the stock which he had pledged to that corporation.

It is hardly possible to account for Mathers’ conduct in omitting to include in his schedule stock which was then worth over $30,000, pledged to secure an indebtedness of $12,000, and for his failure and.that of his syndic to subsequently urge any claim to pledged property which finally reached the value of $177,000, on any other theory than that of a full acquiescence in the disposition made thereof.

As to other pertinent facts which are hotly contested between the parties, and as to which the evidence is conflicting, we have reached the following conclusions: Plaintiffs earnestly contend that the check of Palmer of $8850 could not, in law, be considered as a valid payment of the stock, even if he had liad the capacity to become the purchaser thereof, which is denied.

That contention rests of the facts that E. C. Palmer was then the president of a bank tottering in insolvency, and that the firm of E. C. Palmer & Co., of which he was the senior member, was heavily indebted to the bank for overdrafts, and for indorsements held by the corporation. It is in this connection that plaintiffs have taken an immensely wide range in the matter of evidence, with the view to show that Palmer’s check of $8850 against the pretended balance in his favor as a depositor was worthless, and particularly of no value to the bank, whose object in disposing of the lottery stock was to realize cash assets to meet the demands of its true creditors and bona fide depositors. Continuous efforts were made to show that Palmer was in truth a heavy debtor of the bank, whose valuable assets he had fraudulently absorbed; and a detailed history of all the transactions between Palmer and the bankj from the year 1872, to the date of its failure, in 1879, is to be found in the record, and has contributed its share to the innumerable complications 'which teem in the record, and which we were expected to unravel and to solve.

But under a correct appreciation of the law which governs the case, the investigation of all these matters, which practically involve the administration of the bank, for several years, and its final liquidation, is entirely foreign to the real issues presented by the pleadings in this case.

We hold, in answer to the contention on this branch of the case, that Palmer’s individual account as a depositor was entirely distinct from that of his firm, and that without Ms consent or special agreement, the debits of the firm could not be compensated or set off against the balance in his favor.

It is elementary in our jurisprudence that the component parts of a firm are distinct beings from the firm, as well as from each other, and their rights and liabilities must be tested and adjudicated accordingly.” Paradise vs. Groon, 32 Ann. 532, and authorities therein cited.

Hence flows the principle, equally well settled, that, “ the lion and the right of set off exist only where the individual, who is both depositor and debtor, stands in both these characters alike in precisely the same relation and on precisely the same footing towards the bank. That is to say, for instance, the bank can claim no lien on the deposit of a partner, made on his separate account, in order to set off the same against a debt owing them from the firm, and this not even if property specially pledged to the bank by the partner on his separate account, afterwards becomes the property of the firm.” Morse on Banks and Banking, p. 48.

In the case of Hancock vs. Citizens’ Bank, 32 Ann. 590, this general rule was enforced in a case of peculiar hardship, and the doctrine was therein formulated thus: “ Compensation does not take place in the confidential contracts arising from irregular deposits, such as the deposit of money with a banker, and the depository is not authorized to apply tire funds on deposit in his hands to the payment of the debts of the depositor, except there is a special mandate from him.” See also Gordon vs. Muchler, 34 Ann. 604.

Conceding, therefore, that Palmer might have been indebted to the bank, on account of his liability for the debts of his firm, it is clear that Ms indebtedness in that capacity could not have been set off against the balance in Ms favor on his account as an individual depositor.]

We are not to be understood as deciding that after a thorough settlement of accounts between the bank and the firm, Palmer could have been held as a debtor on account of his firm; wo simply eliminate that discussion as irrelevant to the cruicial test of his rights under well settled jurisprudence.

We, therefore, conclude and we hold that under the state of his account as a depositor in the bank on the 29th of May, 1879, Palmer had the undoubted right to draw a check of $8850 on the bank, and that such check was a legal payment to Mathers, Jr., for his stock. Hence, through that operation, the bank, as pledgee of that stock, obtained full and valid consideration for its interest in the same.

It is conceded that at that time, and for several months before, the stock could not have commanded a higher price on the market, and that the hank was bound, and tho directors clamorous iu their eagerness, to sell the stock. But it is contended that. Palmer’s mode of selling defeated the very object contemplated by the resolution authorizing Mm to sell, and that under his management the bank did not receive as an asset tho proceeds realized from the stock.

The record and the very equities of the ease suggest two answers to that contention.

In the first place, Palmer being, as depositor, a creditor of the bank, could have drawn, on his account, the amount of $8850, which the stock sold for, and thus the same result would 'have been obtained in an indirect manner. And in the second place, the record shows that on the same day he pdaced in the coffers of tho bajik the sum of $9573 75, the amount of his loau from tho People’s Bank on the pledged stock.

It is difficult to conceive wherein the bank was injured by the transaction, and wherein she could have been benefitted by a restitution to her of tho stock, on her restoring what she had received, if the stock had not appreciated in value, and much less if it had depreciated in tho meantime.

Manifestly tho bank could not reclaim the stock, because it bad been, illegally disposed of, without tendering the return of the consideration obtained therefor. Lacomb vs. Forstall, 123 U. S. p. 570.

It is doubtless in tlioso or similar considerations that the silence of the bank directors, to whom the whole transaction was known, can and must find its reason.

They knew that the stock- could not have commanded a better price, but that it might, on the contrary, have depreciated; they saw that the burdensome indebtedness of Mathers was reduced by $8850, and that the credit of Palmer as a depositor was reduced in the same proportion. Hence they formulated no complaint and urged no objection, and therefore they must he held in law as having ratified the disposition, as illegal as it may have been, made by their agent of theii interest in the stock.

By their long inaction, Mathers the owner, and the bank, as pledgee of the stock, are silenced into a tacit acquiescence of Palmer’s dealings touching the subject-matter.

Nothing is better settled in our minds, from the record, that if the stock in question had not increased in value from May to November, 1879, the present suit would never have been filed, and if the same stock had not met with such phenomenal increase of value from December, 1879, to February, 1887, the suit would have continued to slumber, as it had done for eight years, on the uncalled docket of the Civil District Court.

As the bank never was the owner of the stock, a serious question might be presented involving the right of plaintiffs to urge the nullity of the sale by Palmer to himself, when it is connected with the silence of Mathers, the owner.

But for the purpose of our disposition of the case we have conceded their right as well as their conclusion on that point, preferring to rest our decision on the ratification of the transaction by their silence with knowledge of the facts.

The principle which gives legal effect to acts of an agent unauthorized by, or in violation of, his mandate, in consequence of the silence or acquiescence of the principal is quite familiar in our jurisprudence.

In the case of Ward vs. Warfield, 3 Ann. 468, the agent to whom cotton had been consigned for sale in New Orleans, shipped it to Liverpool, where it was sold for account of his principal, at a price less than the market value of the cotton in New Orleans at the date of the shipment to Liverpool. The principal had been notified of the transaction and had been offered the option of accepting the risk of the venture, or of closing the sale with the agent at the stq>ulated market value of the cotton in New Orleans at the time. In the meantime the cotton market in Liverpool had depressed, and the cotton was sold there at a reduced price, resulting in a considerable loss from the amount of credits allowed to his principal by the agent, and suit was brought by the latter for the recovery of the difference between the credit thus given and the actual proceeds of the sale of the cotton.

The offer of the agent to take the cotton at its market value in New Orleans remained unanswered for one month, at the end of which time the principal answered that he accepted the offer of purchase by the agent.

But the court held the silence of the principle for one month to be equivalent to an acquiescence in the acts of the agent; and the latter recovered his demand.

The court said:

“ The principle is well settled that the obligation of an agent whose authority is limited by instructions, is to adhere faithfully to those instructions. If he unneccessarily exceed his commission, he renders himself responsible to the principal for the consequence of his act. If loss ensue, it furnishes no defense to him that he intended the benefit of his principal. But while the general doctrine may be considered as unquestionable, there, are other principles which are equally well settled in the law of agency. Subsequent assent, as between principal and agent, is equivalent to a previous authority, and hence, where an agent has committed a. breach of orders, and the principal, with full knowledge of all the consequefices adopts his acts,’ even for a moment, he will be bound by them and the agent will be discharged. Nor is it necessary that such assent should bo express. It may be inferred from the conduct of the principal.”

In the case of Lafitte et al vs. Godchaux, 35 Ann. 1161, this Court applied the doctrine under circumstances quite similar to the facts disclosed in the present case.

The pledgee of certain shares of insurance stock had reported to the pledgeor a salo thereof under the authority of the act of pledge, and claimed a balance due him on account of his note secured by the pledge, which the plcdgeors made good. Subsequently the latter brought suit for the recovery of the stock, on the ground that the pledgee had not truly sold the stock but had detained the same for his own account.

While the court conceded that the sale made by the pledgee was a nullity, it rejected plaintiff’s demand on the ground of his acquiescence resulting from long silence after full knowledge of the facts.

It was said in that case:

“In such a transaction the relation of the pledgee to the pledgeor is precisely that of an agent to his principal, and the validity of his acts must be tested under the same rules.”

-“Those rules are well known and firmly established in our jurisprudence, and they hold the acquiescence or long silence of the principal touching an unauthorized or illegal act of his agent as a ratification of the act or contract of the agent.” See also : Allison & Co. vs. Watson, 36 Ann. 616; Bennett vs. Bank, 34 Ann. 150; Starr vs. Zacharie, 18 La. 517; Dupré vs. Splane, 16 La. 51.

The preponderance of the conflicting evidence on this point shows to our satisfaction- that the directors of the bank who had authorized and directed the sale of the stock by Palmer as their agent, had full knowledge of the circumstances under which it was disposed of including the fact that Palmer liad taken, it for Ms own account. Their functions as directors continued until the 33th of June, fully two months after the obnoxious transaction, and yet they did nothing indicating a repudiation of the acts of their alleged unfaithful agent. After the failure of the bank their functions were vested in the liquidating commissioners, the present plaintiffs, who avowedly obtained full knowledge of the transaction, and they remained silent until November following, when they begau to complain, being prompted, not by the belief that the sale was a nullity ab initio, but by the prospects of gain as a result from the rapid increase in value of the stock, which had, in the meantime, doubled in value.

Their case must bo held to fall fairly within the rule of acquiescence by long silence.

These considerations lead to, and fully justify the conclusion that when this suit was instituted Palmer was the true and legal owner of the stock pledged to the bank by Mathers, and that those who hold under hiiii have acquired a good and indefeasible title to the same. We, therefore, hold that the judgment in favor of the defendants, Moore, Hyams & Co., and of the Louisiana Lottery Company, is correct, but that there is error in tho judgment against E. C. Palmer.

It is, therefore, ordered, adjudged and decreed that the judgment appealed fiwn be amended by reversing that portion of the judgment which condemns E. C. Palmer to pay to plaintiffs the sum of $18,580 with interest, and with a privilege on the forthcoming bond, and by rejecting plaintiff’s demand ,against said Palmer. Aud it is ordered that as thus amended said judgment be affirmed at plaintiffs’costs in both courts.


author: Fenner, J.

text:
    No. 10,301.
    The State of Louisiana vs. V. & A. Meyer & Co.
    1. This court has troquently held that Article 210 of the Constitution had effect to abolish tho method of collecting taxes by suit which formerly prevailed, and to substitute therefor the method of summary expropriation without suit.
    2. But the proceeding authorized by Section 54 of Act 85 of 1888 is not a suit for taxes nor a suit employed as a means of collecting taxes. It merely authorizes the invocation of judicial aid to compel the delinquent tax debtor, who possesses and conceals and withholds the property assessed in such manner that tho tax collector cannot roach it, and who refuses to produce or deliver it, to make such delivery, in ordor that the collector may enforce the payment of taxes by seizure and sale thereof, in the manner required by the Constitution.
    3. If it bo true that the State has no mode of collecting her taxes except by summary expropriation of property, without suit, it is equally true that she has an absolute right to collect in that modo; and for the proper vindication of this right, the courts are open to her as well as to all her citizens.
    d. Hence, when the tax collector is thwarted in his offorts to'soize and sell the property by the illegal acts of the tax debtor, in concealing and withholding the property so that it cannot be reached, tho legislative department violates no constitutional provision when it provides a judicial remedy by which the debtor may be compelled to produce and deliver the property in order that the collector may perform his constitutional right and duty.
    PPEAD from the Civil District Court for the Parish of Orleans. VoorMes, J.

      Wynne Rogers, Attorney for Tax Collector, and Walter II. Rogers, Attorney General, for Plaintiff and Appellant.

      Farrar, Jonas & Kruttselmitt, for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

The defendant firm is assessed on the’assessment rolls of the Parish of Orleans for the years 1885, 1886,1887 and 1888 on “Money loaned on interest, all' credits and all bills receivable for money loaned or advanced,” in the sum of $125,000, for the first, and $250,000 for each’ of the other years, on which tho taxes duo the State are $750 for the first and $1500for each of the subsequent years.

It is not protended that the defendants ever took proceedings, in the mode or within the time explicitly provided by the statutes, to correct or urge objections to the assessments, and it is now too late for them to do so, under repeated decisions of this Court. The same objections here presented were urged quite recently to an assessment identical in terms, and we then held that the assessment was unassailable in any other mode or within any other time than those prescribed by the statute. Shattuck & Hoffman vs. N. O., 39 Ann. 206; Gay vs. Assessors, 34 Ann. 370; Adler vs. Assessors, 37 Ann. 507; City vs. Canal Bank, 32 Ann. 157.

We shall, therefore,, make no further reference to the method and validity of the assessment, because they are no longer contestable.

The Act No. 85 of 1888, amongst numerous provisions regulating the methods of proceeding in the collection of taxes, contains the following-in Section 54: “ In all cases where the collector cannot make a seizure of .the personal property liable for the tax assessed against it, either because of the nature of the property assessed, or because the owner or his representative holds it in his possession or under his control in such a manner that the tax collector cannot lay hands upon it, and refuses, on demand, to deliver the same to the tax collector, the said tax collector sliall have the power, and it is hereby made his duty, to take, in the District Court, a summary rale upon the person assessed or his representative, as the case may be,, returnable in five days, in vacation as well as in term time, to compel the delivery to him of said property, or of so much thereof, if the same be divisible in kind, as may be necessary to realize at public sale the amount of the taxes, costs and penalties.”

Under this provision, the tax collector took his rule in the present case, alleging that the taxes are due, that a seizure could not be made of the property assessed, because of its nature and because the defendants hold it in their possession in such a manner that the tax collector cannot lay hands upon it, and have refused to deliver up the same or so much thereof as will satisfy the taxes, although demand has been made upon them so to do, and concluding with a imayer for the relief stated in the section of the statute above quoted.

The defendants were duly notified and appeared, but made no written pleading. After hearing, judgment was rendered discharging the rule, from which the present appeal is taken.

Various technical objections were urged orally in the court below by the defendants, but they waive all of these in this court, except one, viz: that the plaintiff having failed' to prove affirmatively that the defendants have in their possession any of the property assessed, this should, in every event, entail a non-suit.

This point has no merit. The presumption is that the possession which existed at the date of the assessment continues, especially when the record presents no denial of possession by defendants. Moreover, proof that they have none of the property in possession will be a bar to the execution of any judgment in favor of plaintiff, which can only decree delivery of the property.

Leaving out of view the objections to the assessment which have been already considered, the only remaining defense is the unconstitutionality of the section of the statute above quoted. The charge of unconstitutionality is based on Article 210 of the Constitution, which declares: “There shall be no forfeiture of property for the non-payment of taxes, but at the expiration of the year in which they are due the collector shall, without suit, and after giving notice to the delinquent in the manner to be provided by law (which shall not be by publication except in case of unknown owner), advertise for sale the property on which the taxes are due in the manner provided for judicial sales, etc.”

The following cases are referred to in which we have held that the method of collecting taxes by suit which prevailed prior to Constitution had been abolished and prohibited by the foregoing provision and that the method of summary expropriation, without suit, to enforce payment, had been substituted therefor. City vs. Wood, 34 Ann. 732; Mayor vs. Hyman, 35 Ann. 301; Mayor vs. Williams, 35 Ann. 329; McGuire vs. Vogt, 36 Ann. 312; Reed vs. Creditors, 39 Ann. 120; Succession of Stewart, 41 Ann. —.

Reference to those cases will show that the dicta therein contained apply exclusively to suits for taxes. But it is obvious that the proceeding here involved is not a shit for taxes, nor is it a suit employed as the means of enforcing payment of taxes.

On the contrary, the collector is endeavoring to employ the method of summary expropriation without suit, prescribed by the Constitution.

It is the clear duty of the tax debtor 'either to pay Ids taxes or to point •out or deliver the property assessed, in order that the collector may advertise and sell it in the constitutional mode. He refuses to do either. This statute simply authorizes the collector to invoke judicial assistance to compel the delinquent to deliver the property assessed in order that the taxes thereon may be enforced in the summary method prescribed by the Constitution and law of the State. It would, indeed, be an anomalous state of affairs if a delinquent tax payer might say to the collector, you cannot sue me because the Constitution requires you, without suit, to seize and sell the property assessed; and you shall not seize and sell the property assessed because I have it in my possession, so concealed that you cannot find it, and I refuse to produce or deliver it.

If it were true that the State has no mode of collecting her taxes except by seizure and sale of the property assessed, it is no less true that she has an absolute right to enforce their payment in that mode. If the exercise of this right is illegally thwarted and obstructed by a delinquent tax debtor, she is clearly entitled to some remedy for such a wrong, and it would be passing strange if her own courts, which she so jealously holds open to every citizen for the vindication of all legal rights, should be hermetically sealed against herself alone.

The legislative department has determined that such is not, and could not be, the meaning of the Constitution. While adhering to the constitutional method of collecting taxes, without suit, and by direct expropriation of property, it has provided this as an appropriate remedy to enable the collector to reach the property in order that he may exercise the right, and perform the duty, conferred and imposed by the Constitution and laws of the State.

A reference to the constitutional provision quoted will show that the proceeding violates none of its mandates or prohibitions. No forfeiture of property is claimed. The collector is not socking to collect taxes by suit, but proposes to enforce their payment, as directed in the Constitution, by seizing and selling the property assessed. He simply invokes judicial aid to compel the delinquent tax payer, who possesses and conceals the property, to produce it, in order that he may perform his constitutional duty of enforcing the seizure and sale thereof for the payment of the taxes due.

We are clearly of the opinion that while the constitutional method of collecting taxes is not by suit, but by summary seizure and sale of the property without suit, this does not debar judicial aid in reaching and uncovering the property, in order that it may be so seized and sold.

The proceeding authorized by this section of the statute is for this purpose and no other, and violates no mandate of the Constitution.

It is, therefore, ordered and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered and adjudged that the rule herein taken be made absolute and that the defendants be accordingly ordered to deliver to the tax collector the property assessed or so much thereof as may bp necessary to realize at public sale the amount of the taxes, costs and penalties — defendants to pay costs in both courts.


text:
    No. 10,348.
    V. & A. Meyer & Co. vs. C. H. Parker, State Tax Collector.
    1. Article 210 of the Constitution makes no distinction between ta^es on movable and taxes on immovable property, and must be held to apply to both.
    2. Those provisions of Act 96 of 1877, which authorized the tax collector to seize, indifferently and at his discretion, either the property assessed or any other property of the tax debtor, are inconsistent with Article 210 of the Constitution and are repealed thereby.
    3. The Revenue Act of 1888 recognizes the constitutional mandate and makes it the duty of the tax collector to enforce payment by seizure of the property assessed, when that is possible; if tbe property is in the debtor’s possession and concealed, it authorizes a demand on the debtor for its production and delivery, and if he refuses, it provides a summary proceeding in court to compel him to do so. It is only when the property assessed “has been concealed, parted with, or disposed of, by the tax debtor,” so that its seizure has, by the debtor’s own act, been rendered impossible, that seizure of other property is authorized.
    4. In this case the collector, having seized other property than that assessed, and having shown no effort to roach and seize the property assessed, has not brought his proceeding within the exceptional case of the statute and was properly enjoined from proceeding therewith.
    APPEAL from the Civil District Court for tlio Parish of Orleans. King, J.

      Farrar, Jonas & Kruttschnitt, for Plaintiffs and Appellees.

      Wynne Rogers, Attorney for Tax Collector, and Walter JT. Rogers, Attorney General, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

For delinquent taxes due by the plaintiffs on an assessment of “ money loaned at interest, all credits and all bills receivable for money loaned or advanced,” the tax collector seized and advertised for sale “ the contents of store No. 71 Baronne street, occupied b3 Y. & A. Meyer & Co., consisting of a large,lot of office furniture, iron safe, cotton tables and fixtures.”

The tax debtors, in this suit, enjoined the seizure and sale, on various grounds, of which it is only necessary to specify the following, viz:

1. That the property seized is not the property assessed, and, second, that, even if other property than that assessed can be seized for the collection of taxes, the tax collector has failed to show the exceptional facts justifying such seizure under Section 54 of Act 85 of 1888.

The tax collector answered by general denial, and from a judgment in favor of plaintiffs the collector appeals.

The collector assigns, as authorhy for his proceeding, Sections 52, 56 and 102 of Act 96 of 1877, which provide that “ in all cases where delinquent taxes are due upon movable property, the tax collector shall be authorized to make actual seizure of the movable property upon which the tax is due, or any other property owned by the party by whom the tax due and sell the same after notice as above provided ” (Section 56); and again, that “in personal property, the taxes shall be enforced by seizure and sale of any personal property owned by the taxpayer when the amount of tax assessed shall not have been paid within ten days after the written demand therefor has been made.” (Section 52).

If these provisions remain in force, they would undoubtedly sustain the proceeding here; but the plaintiffs claim that they are repealed by Article 210 of the Constitution of 1879, which declares: “ There shall be no forfeiture of property for the non-payment of taxes, but at the expiration of the year in which they are due the collector shall, without suit, and after giving notice to the delinquent, etc., advertise for sale the property on which the taxes are due in the manner provided for judicial sales, etc.”

The counsel for the tax collector urges various grounds upon which he contends that this article applies exclusively to taxes on immovables and not to those on movable property. We have carefully considered his reasoning on this subject, but fail to discover any ground which would authorize us to make a distinction which tire language of the Constitution fails to make.

So holding, itfollows that the option conferred by the prior revenuelaws of either the property on which the taxes are assessed or any other movable property of the tax debtor, at the discretion of the collector, is revoked by the-mandatory direction of the Constitution that he shall seize “ the property on which the taxes are due.”

The Revenue Acts of 1888 and of prior years since the date of the Constitution, fully recognize the constitutional mandate, and make it the duty of the collectors to enforce the payment of taxes on movable, as well as oh immovable property, by seizing and soiling the “property on which the taxes are due.” They qn’ovide for its direct seizure when it lies open to such; and in case it is in the debtor’s possession and out of reach, they provide for a demand on the tax debtor to produce and deliver it; and in case he refuses, they authorize a summary proceeding in the courts to compel him to do so. It is only when this property “ has been concealed, parted with or disposed of by the tax debtor,” that the seizure of other property is, in any manner, authorized. Act 85 of 1888, Section 54.

We understand the General Assembly as meaning, and as saying, in these acts, that the proceeding directed by the Constitution is the first, the essential and the exclusive one to be pursued in the collection of taxes, so long as it is practicable or possible to pursue it; but that, if the tax debtor, by his own act, lias made it impossible for the State to reach the property assessed, as by concealing, parting with or disposing of it, he is not, by such means, to escape the payment of his taxes, and practically to nullify the fundamental requirements of the Constitution that “taxation shall be equal and uniform” and that “all property shall be taxed;” which necessarily moan that the taxes shall be paid, and that when he has thus placed it out of the-power of. the tax collector to collect his taxes in the mode required, he cannot take advantage of his own wrong, and the Legislature may provide other means to enforce their payment.

The constitutionality of*this provision is not raised on the pleadings, nor has it been seriously assailed in the argument; and we are always loth to decide such questions, one way or the other, when not necessary to the solution of the controversy before us.

In this case it is clear, in our view, that the.tax collector has not brought himself within the exceptional case provided by the Act of 1888, in which he would be justified in seizing other property than that assessed.

■ The record does not show that he has made any effort whatever to reach the property assessed. He has not even called upon the tax debtor to point out, or to produce and deliver the property assessed.

Although this record does not show it, we know, from the case just decided,. that ho has taken proceedings to compel the production and delivery of that property, which may accomplish the purpose.

Under such circumstances, he was not authorized to seize other property, and the judge a quo rightly sustained the injunction of plaintiffs.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,268.
    George W. Chambers et al. vs. Julia A. Chambers.
    1. After a testator has bequeathed several special legacies of money to sundry persons named, the following clause is inserted, in his will, viz*.
    “I desire that the double houses and property on Villere street be sold, and I bequeath the proceeds thereof to all the above named légateos, in the proportion that the legacies made shall have to said gross proceeds.”

      Held, that it is a testamentary disposition which was intended to confer upon each of said legatees an additional bequest, and not merely to provido the moans to discharge those * previously enumerated.
    2. A transaction or compromise has no force or effect in respect to minors, unless same is duly authorized by the judge.
    3. A residuary legatee, who, being thereto duly authorized by the judge, pays the special legacies which prime her own, and is furnished by the legatees receiving payment, full acquittances and receipts therefor, is entitled to set up the same as a compromise and transaction in bar of an action instituted hy such special logatees against her as an individual, claiming an additional amount as due under, the testator’s will.
    4. Such special legatees as may have received from the residuary legatee the full amount of the special money legacies named in the will, as iu full of all dues and demands, after having had in their possession copies of the will, for a sufficient length of time to have given, it careful consideration and become fully apprised of its contents, are irrevocably bound by such acquittance and receipt.
    APPEAL from tbe Civil District Court, for the Parish of Orleans. Voorhies, J.

      Merrick <£ Merrick for Plaintiffs and Appellees. •
    Bayne, Denigre <& Bayne for Defendant and Appellant.
   The upinion of the Court was delivered by

Watkins, J.

George W. Chambers, for himself, and as guardian of liis two minor children, viz : Benjamin and Fannie, and Minnie Chambers, join Annie E. Hahn, in an action against Julia A. Chambers, and demand judgment on the following representations and averments:

That on the 24th of October, 1884, Benjamin F. Chambers — a brother of George — departed this life, leaving no forced heirs; but that lie made a will, noncupative in form, evidenced by an authentic act, in which he bequeathed to various blood relations, numerous small legacies, aggregating in amount about $7000 ; and, afterwards, the residue to his surviving wife, Julia, constituting her his residuary legatee.”

That, under the will, deceased bestowed the following legacies on the plaintiffs, viz :

On G. W. Chambers........................................$1,000 00

On Benjamin Chambers..................................... 500 00

On Fannie Chambers]....................................... 250 00

On Minnie Chambers....................................... 250 00

On Annie E. Ilalm.......................................... 250 00

Total................................................¡$2,250 00

That, after the various special legatees are enumerated in the testament, and the respective amounts of the legacies are mentioned, there occurs the following clause, viz :

“ I desire that the two double houses and property on Villero street be sold, and I bequeath the proceeds thereof to all the above named lega tees in the proportion that the legacies made shall bear to said gross proceeds.”

It is averred that this property was sold, and realized $2600 at the sale.

That Mrs. Julia A. Chambers was recognized by the court as residuary legatee, and charged with the duty of executing the will, and paying off the special legacies; and that William Roy acted as her agent in so doing.

That the defendant and her agent represented to them that said property, above mentioned, was set aside in the will for the purpose of paying off said legacies, and was not intended to increase them.

That they denied that petitioners were entitled to receive the amount of their respective legacies, and a pro rata share of the proceeds of the sale of said real estate.

That on the faith of said representations of defendant and her agent, they received the sums specified, as the amount of their legacies under the will, believing the same to be all that was due them, and receipted therefor, in full settlement and acquittance of the defendant.

That said representations were untrue, and were uttered for the purpose of gaining an advantage over them for the defendant’s benefit; and that said receipts were and are, erroneous, fraudulent, and unjust, and were executed by petitioners in error of fact and law, and they pray that same be so declared, and as such annulled, and the defendant decreed and directed to perform his trust, and pay them their respective and proportionate shares of the proceeds ,pf said sale, in addition to what they have received.

That Fannie Chambers has received no part of the legacy due her, and she is entitled to $250 in addition to her proportionate share thereof.

The defendant’s answer is, that a copy of-the will was furnished to each one of the defendants, and same was duly examined by them with regard to its construction and interpretation, and, after such examination, and free and full • discussion, said parties received from her the full amount of the several legacies specified in the testament, as coming to them, in full acquittance and discharge of the amounts due to them as legatees; and which was more than they were entitled to receive.

She avers that said sums were paid to, and received by the plaintiffs, as a compromise and in full settlement of their demands — except Fannie Chambers, to whom she expresses a willingness to pay the sum of $250, on like terms.

The exact issue is, whether the plaintiffs are entitled to receive a proportionate share of the proceeds of the property above mentioned — their contention being that, as legatees, they were entitled to receive the amounts specified, and a proportionate share of those proceeds, while that of the defendant is that the property indicated was directed by the testator to be sold, for the express purpose of placing the residuary legatee in funds to discharge the same; and, if there be any deficiency in the funds to meet and pay the same, the legatees have no recourse against her.

On the hearing of the cause the judge a quo decided that the plaintiffs were entitled to have their rights recognized to enforce the clause quoted from the will, as an additional legacy; and directed “that the cause do remain open for further adjudication in the premises;” and the defendant has appealed from that decision.

In his reasons for judgment the learned judge a quo holds, that the quoted clause of the will was intended to confer upon each of the legatees an additional bequest, because it, in specific terms, bequeathes the proceeds of the property described “to all the above named legatees, in the proportion that the legacies made shall bear to said gross proceeds.” In thus construing this testamentary disposition, we think lie was clearly correct. For had the- testator merely designed, by this clause, to provide means of discharging the legacies previously therein enumerated, he would have chosen different words than those just recited. Indeed, the clause is commenced as follows, viz :

I desire that the two double houses and property on Villere street be sold:” and they would have been followed with a request that the proceeds be applied to the .payment of said legacies, — or words to that effect — had it been the intention of the testator to thus bequeath.

But the words immediately following aue, and I bequeath the proceeds thereof to all the above named leyatees.” It is submitted that these words are too clearly indicative of what was the testator’s intention — i. e., to make an additional bequest — to require any discussion. The proceeds, in kind, were bequeathed to all the legatees ; and same were to be apportioned upon the ratio of the legacies therein previously enumerated, among said existing legatees.

But there is another serious impediment in the way of a recovery by George W. Chambers, Minnie Chambers and Annie E. Hahn, who are majors, and sid juris, and, it is the settlement and discharge which the defendant sets up as a compromise and bar, and which plaintiffs assail as fraudulent and erroneous.

With respect to Fannie and Benjamin Chambers, the alleged compromise can have no effect, they being minors and in a state of pupilage, such compromise not having been authorized by the judge. R. C. C. 3072.

And Fannie Chambers executed no receipt or acquittance, and has received no portion of the legacy due her, nor has her guardian for her.

The judge a quo held that the defendant, being executrix of the testator’s estate, and unauthorized by the court to make a compromise, or transaction, was without the power to do so. But she was never executrix. The court merely directed her, as residuary legatee, to discharge the legacies enumerated in the will, and apply the residue to her own.

The plaintiffs’ petition is full warrant for this assertion. The payor and the payees are all legatees; only, the special legatees enjoyed preference in receiving payment ; otherwise, they were upon terms of equality.

We think there were honest and serious differences of opinion with regard to the amount the special legatees were entitled to receive. This contention runs through the whole controversy. These differences were amicably adjusted and composed, between them, and finally settled — ■ i. e., in so far as George W. Chambers, Minnie Chambers and Annie E. Hahn are concerned.

Those plaintiffs had each a copy of the will in possession, for some time prior to the date they acknowledged payment by defendant. Letters and other communications passed between them on the subject. The record furnishes satisfactory evidence that they received the amounts specified, with a full knowledge of all the facts, and that the. defendant, nor her agents, were guilty of any fraud or deception in the matter; and if they received less than they were entitled to have received, they only have themselves to blame.

The judgment should he amended by disallowing and rejecting the demands of George W. Chambers, Minnie Chambers and Annie E. Hahn.

It is, therefore, ordered and decreed that the judgment appealed from he amended by rejecting and disallowing the demands of George W. Chambers, Minnie Chambers and of Annie E. Halm, and that, as thus amended, it he affirmed — George W. Chambers, Minnie Chambers and Annie E. Halm, to pay three-fifths of all costs of both courts, and the defendant, Julia A. Chambers, to pay the remaining two-fifths thereof.

It is further ordered and decreed that, all other issues, relative to the description, value, and disposition of the property referred to in the clause of the testament quoted in the beginning of this opinion, he relegated to the court a qua to ho disposed of according to law and the views herein expressed. ^The judgment to remain, in other responds, undisturbed.