author: Blanchard, J.

text:
    No. 12,927.
    Barber Asphalt Paving Company vs. John Watt.
    Syllabus.
    1. Statutes exercising tbe-power of taxation in any of its forms, or delegating' that power to political subdivisions, are to be strictly construed and closely [ pursued.

      2. In interpreting such statutes all doubts and ambiguities are to be construed" against the taxing power, and if the act be susceptible of more than one interpretation that one must be adopted which is the less onerous to the taxpayer, and which imposes the least burden upon him and his property.
    3. These principles of law are held to be particularly applicable to that system of taxation known as “local assessments.”

      4. A departure in any material part from the plain terms of a statute authorizing local assessments will be fatal.
    £. This is so because such statutes are against common right, not being of general application and imposing special burdens upon individuals, or upon one class of the community, not shared by others.
    6. Municipal authorities, dealing with such statutes and exercising the powers they confer, must track the strict letter of the law. They cannot by their ordinances increase in any respect the burden upon the property of the citizen, and where such ordinances do this, they are null to that extent.
    7. Defendant held liable under the terms of the paving statute (Act 113 of 1886) only for his proportion of total cost of paving the street. He cannot be charged with the cost, according to his frontage, of the paving along the front of the square in which his lots are situated. That is not the rule of apportionment prescribed by the statute.
    :8. Nor can he, in any event, be held liable for a sum exceeding $3.75 per running foot, which was the maximum rate fixed In the petition of property-holders as the cost of the Improvement.

      5. And for the sum assessed against his property no personal liability attaches to him beyond the value of the property affected. The proceeding Is purely ’ one in rem acting on the property benefited and none other.
    J10. The lien on the property accorded by the statute to secure payment of the assessment, extends to and embraces only lots, fronting on the street paved, of the usual dimensions, according to subdivisions in that part of the city, and where squares have not been subdivided Into lots, the lien extends to and embraces only as much of such squares fronting on the street paved as :.is necessary to form a tier of lots fronting on the street of the usual width and depth.
    APPEAL from the Civil District Court for tbe Parish of Orleans Ellis, J.

      jDenegre, Blair & Denegre for Plaintiff and Appellant.

      William Winans Wall for Defendant and Appellee.

      George L. Bright, E. W. Whittemore and W. 8. Benedict for MrsRi'chardson, Intervenor, Appellee.
    Argued and submitted February 24, 1899.
    Opinion handed down May 29, 1899.
   The opinion of the court was delivered by

Blanchard, J.

Act No. 113 of the Acts of Louisiana for the year -1S86 provides that whenever one-fourth of the owners of real property fronting on an unpaved street in the city of New Orleans shall' petition the City Council for the paving of such street, or portion .thereof, setting forth the character or quality of paving desired, it becomes the duty of the Council to have the petition published in the •official journal once a week for four weeks.

It further provides that if, at the expiration of the publication ( period, a majority of the owners of real property fronting on the street, or the portion thereof it is proposed to pave, do not, by memorial addressed to the Council, oppose the contemplated improvement, the Council shall order the paving, which is to be done by contract ¡awarded to the lowest responsible bidder.

It further provides that three-fourths of the cost of such paving, ■exclusive of the intersections of streets, shall be borne by the owners •of real property fronting on the street or portion of the same paved in equal proportion, “according to the running foot front,” and shall be a charge on the property affected in the nature of a “first privilege,” priming any other lien or mortgage.

The other fourth of the cost of paving in front of private property, ¡as well as the whole cost of paving intersections, is required to be borne by the city.

In October, 1895, one-fourth or more of the property holders on ■¡Calhoun street, in said city, between St. Charles avenue and Claiborne street, petitioned the Council for the paving of Calhoun street, between the streets named, with Trinidad Lake asphalt pavement, provided the pavement be guaranteed for five years and an obligation be exacted from the contractor to keep it in good condition during the guaranty period; and provided further the pavement with the curbing shall not cost the property holders more than $3.75 per running foot.

The petition was published during the time prescribed by the statute, and, not being opposed, the City Council passed the requisite ordinances directing the work to be done. Specifications were prepared, bids were called for, and plaintiff company, proving to be the lowest bidder, the contract was awarded to it.

The street was paved, and on completion and acceptance of the pavement along each square of the street, certificates of payment were issued to the contractor by the Commissioner of Public Works and the City Engineer.

These certificates set forth the amount due by each front proprietor, and, based on the same, plaintiff company made out its bills against the property owners.

Defendant owned two squares of ground and part of another square, fronting on Calhoun street, and as the street in front of this property was paved, certificates were issued to the contractor, and, predicated on same, bills aggregating $3,252.97 were made out against him. Payment being declined, this action for recovery is instituted. The prayer is for personal judgment against the defendant and for recognition and enforcement of the statutory privilege on the property owned by him in front of which the improvement was made.

As matter of defense the nullity of the paving contract is alleged' on various grounds, summarized as follows: — ■

1. Because of the incorporation therein of a clause requiring the pavement to be maintained and kept in repair for five years — the contention being that this is in reality a requirement that the repair off the street during the time mentioned shall be at the charge of the-property holders (the expense thereof being figured into the bid and' thus increasing the cost to the abutting owners), whereas street repair- and maintenance is a charge upon the whole city, there being no sanction in the statute for the putting of this expense upon the property owners, and the same, if tolerated, being a taking of private property for public purposes without just compensation in violation of the State and Federal Constitutions.

2. Because the petition of property owners limited the cost of the paving and curbing to $3.75 per running foot, and the City Council was without authority to let out a contract for a larger price per foot —it’being averred that $4.41 per running foot is figured out by the city officials as due by defendant to plaintiff company under its contract, and the amount sued for herein being arrived at by a calculation on that basis.

3. Because the statute authorizing the paving directs that three-fourths of the cost of same chargeable to the property holders shall be borne in equal proportions according to the running front foot, which means that the whole cost of the pavement complete being ascertained, the same is to be apportioned among the property owners according to the frontage of each — whereas the method adopted was to-figure the .cost of the work in front of each square of the street as completed and charge three-fourths thereof to the property fronting ■on such square. It is averred that by this means the expense of the ■work to defendant has been increased.

4. Because the paving of the street in front of defendant’s property has been and is of no benefit to the same, but is an injury to it, and it is averred that before a local assessment can be collected .against property a benefit conferred must be shown.

5. Because the specifications of the work were not sufficiently definite as to quantity and quality of materials and amount of work to be done, and it is averred that on this account no common standard by which to measure the respective competitive bids was furnished, and, hence, there could be and was no adequate compliance with the law requiring the letting of the contract to the lowest bidder.

Other grounds of defense were set up by defendant and an intervenor, to whom a portion of the property sought to be charged, had been conveyed.

In any event, it was denied that personal judgment could be given against defendant, and that plaintiff must be limited to the value of the property upon which he claims a privilege, which privilege it is denied rests upon the whole square of ground — the contention being it must be restricted to the usual dimension of lots along that part of the square bordering on the pavement.

The court a qua rejected plaintiff’s demand as in case of non-suit. It is predicated upon that one of the defenses urging violation of the ■statutory rule of apportionment of the three-fourths of the cost of the improvement chargeable to the property holders. The other grounds ■of defenses were not passed upon.

Plaintiff appeals.

It is urged in argument that, inasmuch as other suits based upon similar paving contracts await the determination of the present controversy, we pass upon all the points raised in the case, to the end of a speedy settlement of such disputes.

Statutes exercising the power of taxation in any of its forms, or •delegating that power to political subdivisions of the State, must be strictly construed and closely pursued. In interpreting such a statute all doubts and ambiguities are to be oonstrued against the taxing power, and if the act be susceptible of more than one reasonable interpretation that one must be adopted which is the less onerous to the-taxpayer, which imposes the least burden upon him and his property.

Sutherland on Statutory Construction, Sections 363, 365; Black on Interpretation of Laws, p. 300, No. 115; Ib. p, 317, No. 119; Cooley on Taxation, p. 419.

These familiar principles of law are peculiarly applicable to that system of taxation known as local assessments, based upon the theory of benefits conferred, so much in vogue at the present time and seemingly on the increase.

Acts authorizing local assessments affect arbitrarily private-property. The power may be delegated by the Legislature, but only in plain and unambiguous terms, and a departure in any material part, by the authority to whom the delegation is'made, will be fatal.

This is so, because such statutes are against common right.. Statutes against common right are those which operate exceptionally to the prejudice of particular persons, those which do not have general application, those which operate on a few while the rest of the community are exempt.

A statute is in derogation of common right which imposes special burdens upon individuals, or upon one class of the community, not shared by others.

Black Interpretation of Laws, p. 300, No. 115.

Municipal authorities, dealing with such statutes and exercising-the powers they confer, must track the strict letter of the law. They can not by their ordinances increase in any respect the burden upon the property of the citizen, and where such ordinánces. do this they are null to that extent. Courts will reduce their scope and effect to- and within the strict limits of the law, where the circumstances permit, and where not, will annul entirely such ordinances, reserving- to-the municipal body, so transgressing the law, to readjust its ordinance on legal lines.

In construing statutes such as that under consideration there is-scant if any ground for what is sometimes called “equitable” interpretation. It is the plain letter of the statute that must be followed.

Indeed, the tendency of modern decisions of the courts is to reduce-to a minimum the difference between strict'and liberal construction.

“When”, says Mr. Black, pp. 282, 283, No. 113, “strict construction is appropriate, the courts, standing upon the letter of the statute, will accept it as they find it, and will not undertake to amend or reform. the language the Legislature has seen fit to employ. They will not put a forced or strained interpretation upon the words of the law * * * in search of a supposed legislative intent, nor supply apparent omission or oversights.”

“Strict construction” is that which refuses to expand the law by implications or .equitable considerations, but confines its operation to cases which are clearly within the letter of the statute as well as. within its spirit or reason. When the sense is manifest and leads to nothing absurd, there can be no reason not to adopt it. To go elsewhere in search of conjectures, in order to find a different meaning, is not so much to interpret the statute as to elude it.

Black, pp. 37, 38, 39.

These observations apply with force to the action of the city authorities in awarding the paving contract under consideration to plaintiff company.

There has not been a strict compliance with the statute; the ordinance and the contract have broadened beyond the scope and the spirit of the law.

Whereas the statute declares that the cost of paving shall be borne three-fourths by the owners of the property fronting on the pavement in equal proportions according to the running foot front, plaintiff’s contract provides for the measurement of each square of ground fronting on the street as completed, and calls for the issuance-to plaintiff of pay certificates based on such measurement, square by square.

In other words, defendant is not called upon to pay his proportion of the entire cost of the paving of the street according to his frontage, which only is his liability by the plain terms of the law; he is called upon to pay his proportion, according to his frontage, of the' total cost of the squares respectively where his property is situated, which is not his liability under the law.

Pay certificates, therefore, issued against him, based upon the measurement and cost of the pavement along the front of the squares where his property lies, do not evidence an enforceable claim against; him.

What ho owes is his proportion, according to the running foot front, of three-fourths of the entire cost of paving Calhoun street from St. Charles avenue to Claiborne street,' éxcluding the intersections, and plaintiff’s case is not made out against him until it is shown by the evidence what this proportion is. Not being shown, •plaintiff was properly non-suited, and as this defense is matter of law, it need not have been set up as a special plea, as plaintiff contends, '.but can well be taken advantage of under the general denial by -defendant of liability as charged in the petition of plaintiff.

We hold, furthermore, that defendant’s liability as just stated, or rather that of the property he owned at the time this paving work was done, is limited to not exceeding, in any event, $3.75 per running foot.

Thig is so for the very good reason that property holders must be held as having consented to the improvement only upon the condition that the cost of paving and curbing- should not exceed .that rate.

The petition of property holders mentions that rate as the price beyond which they were not willing to go. Non constat that a majority of the property holders would, by not opposing, have con■sented to the work if its cost had been fixed at a higher rate, or been left to the discretion of the City Council in accepting bids.

Under the statute the consent of the property holders is the sine ■qua non of the ordering of such improvements.

It follows that the conditions upon which this consent is predi•cated must be strictly observed. The City Council was without •authority to award this contract, so far as the property holders are ■concerned, for a sum greater than that named in the petition of property holders, and to the extent that the prescribed rate is exceeded defendant is not liable.

The maintenance clause in the contract, by which plaintiff company binds itself to keep the street in good order and condition for a term of five years, must be construed with reference to the specifications for the work and the bid of the plaintiff thereon. The latter contained the guarantee that Trinidad Pitch Lake asphalt would be used and that the. work would be constructed in such manner that the same would endure without requiring repairs for five years, but that if repairs should become necessary plaintiff company would make same at its expense.

It thus appears that plaintiff’s undertaking was to lay paving consisting of such materials and put down in such manner as to endure ■for five years without repair, and it guaranteed its work to be of such •character. If not of such character, the loss would fall on the company at whose expense the repairing needed within five years would be done.

This clause is not legally objectionable. It is regarded as simply a ■guarantee of the quality of the work contracted to be done, and doe3 not render the contract void as increasing the burden of abutting ■owners by requiring them to pay for keeping the pavement in repair for the period of five years after its completion. It is an incident of the contract — not an independent undertaking.

City of Schenectady vs. Trustees of Union College, 21 N. Y. Sup. 147; Cole vs. People, 43 N. E. Rep. 607; Wilson vs. City of Trenton, 38 Atlantic Rep. 635; Barber Asphalt Paving Co. vs. Ullman, 38 S. W. Rep. 464; Osborne vs. Lyons, 73 N. W. Rep. 650.

After one-ourth of the property holders had petitioned for the improvement, after their petition had been published for the time the law requires, and after, in the absence of objection by a majority of the property holders to the work, it had been ordered by the City Council and completed by the contractor, it comes too late for this defendant property holder, or any one claiming under him, to raise the defence that his property has not been benefited by the improvement.

Especially is this so, in the absence of any averment of fraud or dishonesty on part of the City Council in carrying into execution the provisions of the law, and in the absence of any warrant for holding that the statute is on its face so unjust and oppressive as to justify the court in interfering.

See Planting Co. vs. Tax Collector, 39 La. Ann. 462; 118 Mass. 168; 120 Mass. 108; 78 Ky. 170; 6 S. W. Rep. 774; 48 Pac. Rep. 877; 70 N. Y. Rep. 605.

With regard to the contention that the specifications submitted, upon which bids for the work were invited, were not sufficiently definite as to quality and quantity of materials and amount of work to be done, we think the objection without force. It is hardly possible for every detail of a work like this to be forseen and provided for in the specifications. The specifications in the instant case are found to be those usual when work of the kind is ordered, and sufficiently full for all practical purposes.

Neither is there force in the objection urged that interest at the rate of six per cent, per annum is required to be paid on the deferred portion of the cost of the improvement assessed against the property owners, while on the city’s portion no interest is required. The statute contemplated the city’s portion should be paid in cash, and. there is nothing to show it was not so paid. It provided the property holders might ask that the share of the cost falling to them be paid one-third cash, the balance in one and two years — the deferred payments to draw interest. The property holders did petition for this,, and it was legal and proper to grant it. While defendant was not one of those who signed the petition, neither he nor other property holders not signing signified any objection to any of the proceedings leading up to the letting out of the work.

Another and more serious contention of the defense is that in no-event does any personal liability attach to property holders on account of this local assessment; that whatever liability there may be in this regard it must be confined .to the property' affected with the lien granted by the statute; and that after exhausting recourse against the property, individual property holders can not be further pursued-for any balance remaining over, and other property of theirs, not on the street paved, subjected to its payment.

We hold this to be so, and that the proceeding is one purely in remr acting- on the property supposed to be benefited, and none other.

Act 113 of 1886 does not prescribe any personal liability, and the contract sued on is predicated expressly on the terms of that statute. We think the true meaning and intent of the act is to impose a charge for street improvement upon the property benefited by the same, and-not to declare, further, the personal liability of the owner over and above and beyond' the property affected. Indeed, had the act gone to the extent of imposing a personal obligation upon the property owner, a constitutional question of serious import would be raised.

This brings us to the question as to how far the privilege upon the-property affected, granted by the law, extends. Some of the squares fronting on the street paved are naked squares of vacant ground. Streets through that part of the city have been projected in such way as to form squares. Many of these streets have been opened and in-use. Calhoun street is one of these. But some of the streets crossing Calhoun have not been opened. Nevertheless they are well defined. Some of the squares bordering on Calhoun street appear not to have been actually subdivided into lots. Had they been so divided it is clear the lien would affect only the tier of.lots fronting on the street. Now, because an- actual subdivision of the squares into lots had not taken place at the time of the completion of the pavement, does the lien extend over and embrace the whole square of ground? Such can not be held either to be the letter or the intention of the statute, which plainly refers only to property “fronting on said pavement.”

We hold the lien of the statute extends to and embraces only lots, fronting on the street paved, of the usual dimensions according to subdivisions in that part of the city, and where squares have not been subdivided into lots, then the lien extends to and embraces only as much of such squares fronting on the street paved as is necessary to form a tier of lots fronting on the street of the usual width- and' depth.

While sustaining the decree appealed from plaintiff’s right to proceed against the property of defendant and intervenor (Mrs. Richardson) according to the views herein expressed, is fully reserved.

Judgment affirmed.

Monroe, J., takes no part, the case having been submitted previous to his appointment on this bench.


source: Caselaw Access Project

author: Watkins, T. Monroe, J.

license: Public Domain

text:
    No. 13,097
    Lucinda Simpson vs. Oliver P. Normand et als.
    Syllabus.
    The proof disclosing tha.t the plaintiff and defendant had lived in open, public concubinage for more than twenty years, and a family of eleven children have been born of their illicit intercourse; and, it further appearing that this illicit intercourse was admitted by the plaintiff under oath in her answers to interrogatories on faots and articles — any claim she may make for services as house-servant and laborer are so interwoven and blended with her remuneration as a concubine, that they-are, practically, indistinguishable.
    When the taint exists, it affects fatally, in all its parts, the entire body of,the claim.
    Where there is turpitude, the law will help neither party to the transection.
    On Rehearing.
    When the interests of justice require it, a ease will be remanded for further evidence.
    T N RE Oliver P. Normand and Perry B. Snoddy applying for certiorari, or writ of review, to the Court of Appeals, Third Circuit, State of Louisiana.

      A. J. Laforgue for P. B. Snoddy, Petitioner.

      II. 0. Edwards and J. 0. Oappel for O. B. Normand, Petitioner
    Respondent judges pro se.

      Joffrion & Joffrion and A. V. Ooco for Lucinda Simpson, Respondent.
    Submitted on briefs March 11, 1899.
    Opinion handed down May 1, 1899.
    Rehearing granted June 12, 1899.
    Opinion handed down Tune 12, 1899.
   The opinion of the court on rehearing was delivered by Monroe, T.

The opinion of the court was delivered by

Watkins, T.

The original suit was brought against the defendant for the recovery of the sum of one thousand two hundred and eight ■dollars, the claim therefor having its foundation upon a recital in an ■authentic act of sale- of a small plantation, which is situated near the town of Marksville, in the parish of Avoyelles, from the defendant to the plaintiff, which is of the following tenor, viz.:

'“This sale is made for and in consideration of the price of one ■“ thousand dollars cash in hand to the vendor well and truly paid, the “ receipt whereof is hereby acknowledged and acquittance in full "“ therefor granted, being in part payment, and liquidation of services rendered to the vendor by the purchaser for twenty-three years as •“ house servant and laborer at eight dollars per month, forming the "“ sum of two thousand two hundred and eight dollars.”

That deed bears date of execution October 27, 1891.

Subsequently, the plaintiff instituted a second suit against both the ■defendants, Normand and Perry B. Snoddy, the object of which was to have declared null and void a certain act of sale, from Normand to ■Snoddy, of a certain town lot4 in Marksville, with the buildings and improvements thereon, on the charge of fraud and simulation — the price stipulated in the act being two thousand five hundred dollars, of which two hundred dollars was cash and the balance payable on installments, with usual and appropriate stipulations.

Upon plaintiffs motion, the two cases were consolidated and tried a's one cause.

On the trial in the District Court, there was judgment in favor of the plaintiff, and that decree was affirmed by the respondents’ court. ’

It is the last judgment and decree which the relators have brought up for our review under the provisions of Article 101 of the Constitution.

The charge of the petition in the revocatory action is that the sale complained of was a fraudulent simulation, and made through a collusion between the two defendants for the purpose of placing the property of Normand “beyond the reach and pursuit of his creditors,” in violation of petitioner’s rights; and the prayer of her petition is that the said sale be declared null and void, as in fraud of her rights, and that said property be subjected to the personal judgment she demands against the defendant, Normand.

The cumulated suits may be treated and considered as a revocatory action brought under the provisions of Revised Civil Code 1972 — it having been brought by an individual creditor for the liquidation of her demand by a personal judgment against her debtor, and agáinsfc the two parties to the alleged fraudulent contract.

Normand’s answer to the first suit is, substantially, that the first act of sale or dation en paiement was a donation to the plaintiff under the form of a contract of sale, and that the consideration therefor is and was unreal; and, he avers, that he was not indebted to her at the time, but that he gave her the property “because he desired to give her “ and her children a home, as she was his concubine, and he had lived “with her as such for many years.” He averred that the sale to' Snoddy W'as legal and valid in all respects, and neither simulated nor fraudulent, and that he had received full and adequate consideration therefor.

To this petition were annexed certain interrogatories on facts and articles which were propounded to the plaintiff.

Snoddy’s answer was, in effect, that the sale to him was legal, valid, and in good faith. That he paid the cash consideration expressed in the deed, and executed the notes specified in the act of sale, took actual possession of the property immediately after his purchase and has, at all times since, exercised, and now exercises, dominion over it.

He avers that he did not know of the alleged insolvency of the vendor, if such was a fact at the time of the sale; on the contrary, .that lie did not know that he was indebted to any one. That prior fo his purchase, he had the notary public, who passed the act, and his attorney, to examine the record for the purpose of ascertaining whether or not the property was free of encumbrances; and that upon their assurances that there were none, he consented to and did purchase same.

He further alleges, specifically, “that the plaintiff, Lucinda Simp- “ son, was the concubine of said O. P. Normand, and that she has no “real or valid claim against said Normand; and the alleged pretended acknowledgement of indebtedness of said Normand to said “Lucinda Simpson, in said act of sale, of date October 27, 1891, is “ fictitious, unreal, and untrue, and was done to place the property, “ pretended to be conveyed to plaintiff in said act of sale, in her name “ — both the parties to said pretended act of sale knowing that a donation to a concubine was prohibited by law,” and that said act is .a donation in disguise — and his prayer is in keeping therewith.

The plaintiff, in open court, made the following answers to the interrogatories on facts and articles, viz.:

“Interrogatory 1. What is your name, age and occupation?

“Answer. Lucinda Simpson; was born in 1842, and will be forty-six years old on the 10th of August past; and work for a living.

Interrogatory 2. With whom did you live from 1867 to 1891 ?

“Answer. Oliver P. Normand.

“Interrogatory 3. Have you ever been legally married; if so, to whom, and when ?

“Answer. I have never been married.

“Interrogatory 4. Where is your husband, and when did you leave him?

“Answer. I have not got any; never did have any.

“Interrogatory 6. Have you any children, if so how many?

“Answer. I have eleven children.

“Interrogatory 7. Who is their father ?

“Answer. O. P. Normand.

“Interrogatory 8‘. Were you ever legally married to their father?

“Answer. No, sir.

“Interrogatory 9. Who fed and furnished you with clothing all the years you were living with the defendant ?

“Answer. I worked, to clothe myself, in the field and garden, and raised chickens. ■ ■' if

“Interrogatory 10. Did you contract any debts during the time -you were living with defendant; if so, who paid them?

“Answer. I did not contract any debts.

“Interrogatory 11. Did you work in defendant’s field during the time you lived with him; if so, did you receive any share of the crop Tor your labor during the time, in payment for your labor ?

“Answer. I worked in the field. No, sir; sometimes ht would give me a little glange (scraps of cotton); two or three bales to furnish the house and buy the children clothes, and buy necessaries for the house.

“Interrogatory 12. Did the defendant ever give you any money in 1891; if you answer in the negative, please state why he acknowledged .himself indebted unto you?

“Answer. Yes, sir; $2,228.00; because I labored for him; worked .for him.

“Interrogatory 13. State the amount the defendant acknowledged to owe you?

“Answer. Two thousand, two hundred and twenty-eight dollars.

“Interrogatory 14. Was it not done to pass the title to you of the plantation near Marksville, on which you are living? -

“Answer. No, sir.

“Interrogatory 15. Did he not tell you that he wanted to give you that place, and that a donation would not do ?

“Answer. No, sir.

“Interrogatory 16. Was it not agreed and understood between you and defendant that title would be placed in your name in that property, and that he would acknowledge himself indebted to you for an amount sufficient to cover the value of the same, and that was all he was to give you?

“Answer. No, sir.”

The foregoing are the interrogatories and the answers in extenso, and they, together with the recitals, of the deed, constitute the principal part of the evidence upon which the issues were disposed of in the respondents’ court.

This statement of the pleadings and evidence was necessary to he made, in order to get a proper understanding of the complaints that Telators make of the opinion and decree of the respond&nt- judges.

They are as follows, viz.:

First — That respondents erred in holding the only point on which a "doubt might exist, is, as to whether the services for which pay“ments is claimed, had no other motive than the pre-existing con-: “ eubinage of the parties, and merely incidental to such relations. To “prove this fact, the burden of proof was clearly upon defendant.”

Second — That respondents erred in holding that a concubine, “who “ admits her illicit relations, can recover from the one with whom “ she had been living in concubinage; and though the immoral relation, is a ground of defense. That she need not show that the ser- “ vices, on which she bases her claim, were rendered under an agree“ment, or contract, entered into before concubinage life began; nor “need she show that these services were not incidental to that mode “ of living.”

Third — That they erred in holding that the acknowledgment in the act “of sale is proof that the debt was due for services rendered as “laborer” by the plaintiff; and that “Normand could hardly be heard “to say that he did not owe her the amount, as such, after having “ acknowledged it in a notarial act.”

The relators complain of the aforesaid rulings as being contrary to law, and a clear departure from the settled jurisprudence of the State, and greatly to their prejudice, and entitle them to the remedy and relief provided for in Article 101 of the Constitution of 1898; and that the judgment of the respondents’ court should be reviewed by this court, and annulled and reversed, and made to conform to the law and the jurisprudence; and a decree rendered in their favor and in accordance therewith.

The opinions rendered by respondents upon the original hearing of the cause, and upon the rehearing, are annexed to and made parts of the record, and their return; and a careful examination thereof discloses that their opinion and decree principally rests upon the aforesaid assumptions.

The deed upon the recital of which the” suit is founded was executed on the 27th of October, 1891; and the amount of 112,208.00, specified as the wages due plaintiff, is equal to eight dollars per month, for a period of twenty-three years — that is to say from 1867 to 1891.

The answers of the plaintiff to the interrogatories on facts and articles, constitute part of the record, and they affirmatively show that she admits having lived with Normand since that year (1867), when she was about twenty-five years of age; and that, notwithetanding they had never been married, she had borne him eleven illegitimate children.

And, according to the due course of nature, there would reasonably have been required about that number of years for the birth of that number of children; and that fact serves to confirm the theory that, their life of concubinage began in 1867, when the plaintiff first commenced living with the defendant, Normand.

It is, also, an important fact that the deed contains no statement to-' the effect that plaintiff rendered any services to the defendant prior to that date; and the plaintiff, in her answers to the interrogatories en facts and articles', makes claims for no services prior to that date.

She claims for no such anterior services in her petition. Hence it may he accepted as an undoubted fact that no services were rendered' by the .plaintiff to the-defendant prior to the year 1867, the date at which they began living together; and at which time, it is evident,.their concubinage commenced.

At that time, and subsequently to 1891 — a period of twenty-three-years — the defendant was owner of the plantation which he subsequently gave to plaintiff, and of the residence in Markville which he, subsequently, sold to the defendant, SnocTdy; consequently, the plaintiff went to his home to live in 1867, and there she subsequently remained, and gave birth to eleven children.

The petition is as lacking in allegation, as the record is wanting in • proof, that there was any contract, agreement, or understanding, at the time she first went to the defendant’s house to live, that he was to-pay her eight dollars, or any other sum per month, for her services y and, if there was such an agreement, it does not stand to- reason, nor' accord with common experience, that a day laborer, in her cireum- - stances, should have patiently bided the lapse of twenty-three years of time without receiving a dollar of the wages due, or even having’ demanded a settlement of accounts.

It is even stranger still that when the so-called settlement was' made, it was carried back to 1867 as its commencement, without any computation or charge on the one side of interest arrears, during which time they had more than doubled the capital; and that on the other side, no credit had been given for amounts which she had been paid, notwithstanding she admits, in her sworn answers, that she had received several hales of cotton from defendant’s crops.

As Judge Rost, speaking for the court in Oliver vs. Blancq, 2nd Ann., 517, very appropriately said: “Persons in her situation are apt “to keep their cash accounts balanced; and a very strong ease indeed “ would have to be made out, before courts of justice would allow claims like the present.”

Taken all in all, on what other hypothesis can all of these conflicting theories and statements be reconciled, than that the plaintiff and defendant came together for the obvious purpose of concubinage, and that they continued in such relations to the year 1891, when the deed was executed; and afterwards?

In our opinion, there is no other that can solve the problem.

Accepting that theory, it appears quite reasonable that the defendant should have resorted to the subterfuge of making’ to his concubine a dation en paiement, in reputed compensation for services rendered, and by this means afforded his children ' a safe refuge, and secrete from the world his illicit relations with his concubine.

And such would have, doubtless, been its effect had not the plaintiff, by grasping at the shadow, endangered her hold upon the substance.

It is to the foregoing state of facts that the law must be applied.

The case on which the plaintiff’s counsel and the respondents chiefly roly is Succession of Percuilhet, 23rd Ann., 294.

■Opponent’s claim for services as house servant and sick nurse was resisted on the ground “that, for several years next preceding the “death (of deceased) she lived with him as his concubine, and was so “living with him at the time of his death.”

Notwithstanding “the evidence on this point did not make the “truth of the averment very clear,” as the court observed, yet they announce the following to be the general principle governing such cases, viz:.:

“If concubinage had been alleged and proved to have been the “ motive and cause of the parties living together in the same house f'Hn the first instance, and the services in question to have been “ merely incidental to such a state of living, our conclusion might “have been different, but such is not the allegation, much less the “ proof.” (Our italics.)

Very much the same conditions are presented in Viens vs. Brickle, 8 O. S. 7, in which the court makes this statement, viz.:

“The plaintiff’s own witnesses depose, that she and the defendant “lived together in a greater intimacy than morality allowed. This, “however, does not seem to have been' the motive of their coming " together, but the consequence of the familiarity which, a close union “ of interest is apt to create between persons of different sexes.”

The statement of fact upon which that opinion is predicated, makes the distinction between the ease which the court had under consideration, and the instant case, very clear.

“The testimony establishes the fact,” says the court, “that the “ plaintiff kept a decent boarding-house for mechanics, well supplied “with furniture, when the defendant came to board with her; that “ soon after he took the management of the house, as master of it, and “ the plaintiff continued her attentions to its indoor concerns with “great care.”

These facts clearly illustrate the reason for the opinion expressed, and make it evident that the motive and purpose of the-two coming' together was not concubinage, but that it became incidental to the subsequent identity of their interests, and a consequence of the familiarity which their close intimacy thereafter produced.

Rut, in the case of plaintiff and Normand, the fruits of their intimacy, and the circumstances surrounding its commencement, conclusively show that concubinage was the motive of tlieir coming together, and continuing' together in that relation afterwards.

In Stringer vs. Mathis, 41st Ann., 985, a claim for room-rent and services as a siek-nurso wa’s resisted, on the ground that “for many “ years the plaintiff had been the concubine of the deceased, * * * “ and that he rented her house during the time for which remunera- “ tion was claimed, solely for the purpose of concubinage.”

On this state of facts being established, the court say:

“We arc satisfied that- the sole motive of the visits, or the oecu“pauoy of the room, by Mathis * * * was the .relation of concu- “ binage existing between them.”

The question of the illegality of contracts and obligations of different kinds, arising out of the illicit relations of parties living in concubinage together, has been frequently examined and decided by this court; and the reason and spirit of the rule announced in their opinions is founded upon the precept of the Code which declares, that “those who have lived together in open concubinage are respectively “ incapable of making to each other, whether inter vivos or mortis “causa, any donations of immovables, etc.” R. C. C. 1481 (1468).

We think it well to collate and restate some of those cases which relate to that prohibition, and those ancillary thereto, as illustrating what is the established jurisprudence of this court therein.

In Succession of Beard, 14th Ann., 121, suit was brought against the estate by Mrs. Andrews on a promissory note executed by the deceased, and the defense was that she was his concubine, and that concubinage was the consideration therefor.

Notwithstanding there was nothing in the way of recital in the note to that effect, the court was of opinion, and so held, that the-evidence left little doubt that an illicit intercourse subsisted between the plaintiff and the deceased; and that “evidence of this character “ creates a prima facie case against the plaintiff, which throws upon “ her the burden of proving a legal consideration for the instrument “ sued on,” and that she failed to do.

Surely a different rule should not obtain with regard to a case like-the instant one, wherein suit is founded upon the mere recitals in an act which is rendered of more than questionable validity by the sworn, admission of the plaintiff, in her answers to interrogatories on facts and articles, that she had lived in concubinage for a length of time sufficiently great to. have borne to her paramour eleven children of' their illicit connection.

Surely, if the rule established in that case is to obtain, the plaintiff, under the circumstances related, has imposed upon her the burden of proving a valid and real consideration for said sale, as well as of the recital of which she seeks to avail herself..

In Lazare vs. Jacques, 15 Ann., 599, suit was brought for the annulment of an act of sale which was made to the defendant, on the ground that she “was at the time (of its execution)' his concubine, “ and that it was a disguised donation.”

The court held “that the deed of sale in question was a disguised “ donation, and that the transfer was made for the purpose of evading “ the prohibition contained in Article 1468 of the Civil Code.”

Again:

“This contract being derogatory to public order, and public policy, “ it is radically null and void, and,' as such, it is not susceptible of “ratification or confirmation. The obligation is an illicit one;' * * * it is an absolute nullity.”

Now, this is an action by a self-confessed concubine of the defendant for the enforcement of an acknowledgment of indebtedness which is contained in an act of sale of exactly similar import, and is-■equally as obnoxious to the law; for tbe enforcement of her claim necessarily carries with it the recognition of the validity of the deed to the defendant’s concubine.

In Cole vs. Lucas, 2d Ann., 946, it was held that “the disabilities ■“ under which the law places persons who have lived in a condition of “ concubinage, are created for the maintenance of good morals, of “ public order, and for the preservation of the best interests of -“society.”

In Wooton vs. Harrison, 9 Ann., 234, suit was brought on a note, the defense to which was concubinage, and of which the court said:

“We have carefully considered the evidence with regard to this “note, and the surrounding circumstances, a,nd it has produced upon “ our minds an impression so unsatisfactory, that we are not pre- “ pared to say the appellant has any right to a change of the judgment “ below (to one) in her favor.

“The evidence tends quite strongly to the conclusion that the relation of concubinage did once exist between the plaintiff and Har“rison.”

•* *• * * * * #

“Though the existence of any lawful consideration has been put at “ issue, and the showing above mentioned has been made by the “ defendant, no evidence of consideration has been given by the “ plaintiff.”

In Delancy vs. Beale, 1 La., 488, the court said of a parallel question :

“Whenever an onerous contract is sought to be enforced by a natural “ child beyond what the law authorizes the parent to grant, and contrary to the interest of the legitimate descendants, such contract “ought to be received with suspicion; and the presumption fairly “ arises that it was made for the purpose of disguising an illegal “ donation.

“The presumption once admitted, throws the burden of proof on "the plaintiff to establish the genuineness of the contract.”

The foregoing principles have always found recognition in the ■decisions of this court, and it has never failed to emphasize and enforce them in the most rigorous and decided manner.

Illustrations are found in the following cases:

In Davis vs. Holbrook, 1st Ann., 176, is found a report which has always been conspicuous in our judicial history, and therein the genera] rule applicable to this class of cases is very forcibly stated thus:

“A contract must have a lawful purpose; and if it have an unlawful “ cause — if it be contrary to good morals, or public order — it can have no effect.”

“A party will not bo heard who asks the court to relieve him from “the. consequences of having violated the law.”

In Association vs. Berghaus, 13th Ann., 209, the same precept is thus announced, viz.:

“When a contract belongs to a class which is reprobated by public “ policy, it will be declared void, although in that particular instance, “ no injury to the public may have resulted.

“The case must yield to the principle, and not the principle to the “case.” Fox vs. City, 12th Ann., 154; Glover vs. Taylor, 38th Ann., 634.

A similar opinion was expressed by tire Supreme Court in Bartle vs. Coleman, 4 Peters, 186:

“When,” say the court, “the contract grows immediately out of, or “ is connected with, an illegal or immoral act, a court of justice will “not lend its aid to enforce it; and, if the contract be in fact only “ connected witli the illegal' transaction, and growing immediately “ out of it, though it be in fact a new contract, it is equally tainted by “ it.”

In Trist vs. Child, 21 Wallace, 441, this idea was thus forcibly expressed, while recognizing the validity of an honest claim for services honestly rendered, viz.:

“But they are blended and confused with those which are forbid- “ den; the whole is a unit, and indivisible.

“That which is bad, destroys that which is good, and they perish “ together. * * * Whore the taint exists, it affects fatally, in ail “ its parts, the entire body of the contract.

“In all such cases potior conditio defendeniis.

“Where there is turpitude, the law will help neither party.

To the same effect are many other cases.

Marshall vs. Railroad Co., 16 Howard, 314; Tool Company vs. Morris, 2 Wallace, 45; Cappel vs. Hall, 7 Wallace, 542; Meguire vs. Corwine, 101 U. S., 108.

But, it is needless to burthen this report by the citation of additional authorities when they are practically in accord upon the foregoing propositions.

Conceding all that plaintiff claims, and considering all she admits under oath, the value which is placed upon her services as house-servant and laborer of the defendant, are so completely combined with those in remuneration for her illicit co-habitation with Normand as concubine, as to be completely indistinguishable, one from the other; and the taint existing, it fatally affects plaintiff’s entire demand, in all its parts, and renders it wholly and entirely void.

For the enforcement of a contract thus circumstanced, she has neither remedy nor redress in a court of justice.

In our opinion, the decree of the respondents’ court is at variance with the well-settled principles of law, and the uniform jurisprudence of this court, as we have fully detailed and set forth; and in the exercise of the power and duty conferred upon this court by Article 101 of the Constitution, we feel constrained to reverse and annul' their judgment and decree, and to render a judgment in favor of the defendant, Normand, and against the plaintiff, rejecting her demands <m toto — to the end that the uniformity of jurisprudence may be preserved throughout the State in the courts thereof.

J. O. Toole vs. C. H. Minge & Co. In re A. J. Ingersoll, applying for writ of error to the Court of Appeals, First Circuit, 50th Ann., 748.

Goldman & Masur vs. L. H. Goldman. In re Goldman & Masur applying for certiorari or writ of review to the Court of Appeals, Second Circuit, State of Louisiana. 51st Ann., 761.

The Brown Shoe Co. vs. J. N. Hill & Bro., et al. In re the Brown Shoe Company, applying for certiorari or writ of review to the Court of Appeals, Second Circuit, State of Louisiana. 51st Ann., 920.

L. D. McLain et alii vs. N. Burgess. In re L. D. McLain et alii, praying for a writ of error to the judges of the Court of Appeals, First Circuit, State of Louisiana. 50th Ann., 999.

It is therefore ordered and decreed that the judgment and decree which was rendered by the respondents, and, likewise, the judgment of the "District Court which it affirms, be and the same are annulled and reversed; and it is further ordered and decreed that the demands of the plaintiff be rejected and disallowed at her cost in both courts.

On Rehearing.

Monroe, J.

In view of the fact that there is no evidence in the re - ,cord which hears distinctly upon the motive which brought the plaintiff, Lucinda Simpson, and the defendant, Normand, together origin.ally, and we are induced to believe from the representations made by plaintiff’s counsel in their application for rehearing that such evidence, not introduced upon the trial because believed to be unneces.sary, is nevertheless obtainable, we have concluded that the interests • of justice will be best subserved by remanding the case for further .evidence, rather than by rejecting the plaintiff’s demand.

It is therefore ordered and adjiidged that our former decree herein Ibe set aside, and it is now ordered, adjudged and decreed that the judgment and decree rendered by respondents, as also the judgment of the District Court which it affirms, be and the same are hereby annulled, and it is further ordered, adjudged and decreed, that the .respondents remand the case of Lucinda Simpson vs. Oliver P. Normand et als. to the District Court from which it was appealed, to be ..there proceeded with according to law.

It is further ordered that the costs of this proceeding and of the •appeal to the Circuit Court, be paid by said Lucinda Simpson, and that the costs of the District Court await the final determination of the ease.


author: Watkins, J.

text:
    No. 13,218.
    Jules C. Koenig vs. Joseph T. Huck. In re Joseph T. Huck, Applying for Certiorari or Writ of Review to the Court of Appeals, Parish of Orleans, State of Louisiana.
    Syllabus.
    An attachment having been obtained on the sole ground that the defendant had caused a reputed act of mortgage in favor of his wife to be recorded against his property with intent to defraud his creditors, and an averment to that effect in the plaintiff’s petition having been withdrawn on proof of its validity being offered, the same must, as a necessity, be dissolved.
    In such a case the question of motive has no relation to the Issues.

      B. B. Howard for Huck, Petitioner.

      Bernard McCloshey for Koenig, Respondent.

      Submitted on briefs June 7th, 1899.
    Opinion handed down June 19th, 1899.
    Rehearing refused June 30th, 1899.
   The opinion of the court was delivered by

Watkins, J.

As stated in the opinions of the judges of the respondent’s court, the only question for consideration and decision is the ■validity vel non of the plaintiff’s attachment; we will therefore make a brief synopsis of the plaintiff’s petition.

Suit is brought for the recovery of the sum of $1634.89, divided into several instalments represented by five promissory notes which were ■executed by the defendant; and the sum of $589.08 on open account, less certain credits.

The allegation upon which he demanded an attachment is as follows, viz:

“Now your petitioner further shows that said defendant has caused 41 his wife, Caroline Fisher, widow by first marriage of Michael Weit“ner, and wife by second marriage of Joseph T. Huck, to be recorded “ in the mortgage office of the parish of Orleans, under date of March “ 19th, 1897, * * claiming $5,707.22. That said • recordation '“ is the result of a combination between said Huck and his wife,for the purpose of defrauding his creditors ;that said Huck and his wife have 41 claimed that said recordation has been made for the purpose of de- “ feating certain claims intended to be urged against said Huck and “ for the purpose of defeating the claim of your petitioner herein.

“Petitioner now charges that said defendant has mortgaged, as- signed and disposed of, or is about to mortgage, assign, or dispose of his property, rights and credits or some part thereof, with intent “ to defraud his creditors or give an unfair preference to some of '“them; (and) that a writ of attachment is necessary in the prem- ■“ ises.

The prayer is in conformity with the foregoing averments of the -petition.

On the trial, there was judgment rendered in favor of the plaintiff ■for the full amount of the debt demanded, sustaining the attachment., ®nd the defendant appealed to the court of the respondents.

Upon consideration of the cause in said court — same being composed of two judges, as it was organized under the constitution of 1879 — there was a difference of opinion between them as to what was a proper disposition to be made of the case, and they thereupon selected a lawyer of learning and ability to act as judge, ad hoc, and according to law.

In the allotment of causes this one was assigned to the judge ad hoc for examination and report; and upon examination he reported an opinion which favored an amendment of the judgment appealed from by “striking out that portion which sustains the validity of the writ “ of attachment, etc.” — one of the judges concurring and the other dissenting.

In this situation, an application for a rehearing was filed, and the-judgment was suspended for a time; and, in the meantime, an additional judge was elected under the provisions of the constitution of 1888, and he displaced the judge ad hoc, and, in this way, the* personnel of the court was changed.

The cause on application for rehearing having been assigned to the aforesaid judge, he reported an opinion and decree avoiding the judgment previously rendered, and affirming the judgment appealed from.

In that opinion, one of the judges concurred, and therefrom another dissented — the judge concurring presenting his views in a separate opinion.

In our view the labor of the preparation of an opinion can be abbreviated and the questions of law be more understandingly stated by making extracts from said opinions, than by giving an extended statement of our own.

The following is a portion of the opinion that was reported by the* judge ad hoc, beginning- with a statement of the facts, viz:

“In March, Koenig sent for Iiuck, and asked him to settle this- “ account, and to give him a mortgage to secure the same. At an interview held on the 17th of March, the defendant said he would try “to raise a thousand dollars or thereabouts, and bring it to the plaintiff. Tie came back on Friday, the 19th March, and told the “ plaintiff that ho could not get the money. On the same day his wife “ appeared before a. notary, made affidavit of her paraphernal claim, “ and it was recorded in the mortgage office. On the following day,. “ Saturday, the 20th, the plaintiff saw notice of this mortgage in the “ Court Reporter. He called upon the defendant, who stated that the “ mortgage had been put of record because he was threatened with a “ damage suit by a person who had been bitten by one of his dogs..

“The defendant made the same statement to two other persons, one the collector of I. L. Lyons, and the other, Hodgins, the collector o£ “Koenig. To both Iiodgins and Koenig the defendant stated that “ he was not trying- to defraud his creditors, that he would pay dollar “ for dollar, but that they would have to give him a little time on ae- “ count of bad business, and because- they were all coming at once; “ but he wanted to pay his debts.

“It appears that the defendant had been sued, in 1895, for a thou- “ Sand dollars damages by one T. F. Schoenstein, who had been bitten “ by defendant’s dog. This case came up for trial about this time and “ was dismissed because of the absence of the plaintiff; and the plain- “ tiff threatened- the defendant to renew the suit for ten thousand dol“lars damages.

“In the interval, between March 20 and March 26th, an attempt was “made by the plaintiff, or his representatives to induce the defendant to give a mortgage to secure the claim of the plaintiff, and to indue® “ the defendant’s wife to surrender her claim so that settlement could “be made between Iluck and.the plaintiff, or to get notes signed by “ her and her husband.

“It does not appear that the plaintiff instituted any investigation to determine whether the wife’s claim was valid or invalid. The question of the validity of this claim seems never to have been in issue or in discussion; and when the defendant offered to prove the “ verity of that claim in this cause, the plaintiff directed that all that portion of his pétition, havng reference to the invalidity of the claim “ of the wife, should be stricken out.

“On the 26th of March, the plaintiff sued out an attachment, mak“ing the allegations above set forth; and when he was on the stand, “ he testified as follows:

“ £Q. — As a matter of fact, you then swear that the only thing that “ made you bring this suit, was because his wife recorded her mar- ital lien and right against this property?

“ £A. — I brought this suit because I could not get any satisfaction “ out of Mr. Huek; because he owed me the money and would not “ make me a proposition in any shape.

£Q. — Did you believe that he was going to beat you out of your money ?

“ £A. — He would not make any arrangement. We made various “ propositions to him, and he would not entertain them.

“ £Q. — You had no other reason?

“ ‘A — No, sir.’ ”

“The only fact proven against the defendant is, that he caused his " wife to record her claim for her paraphernal funds, the motive for ■“this record being the desire to see his wife protected in case a judg- “ ment should be rendered against him, for damages, in the dog suit. " There is no proof that he was about to mortgage, assign or dispose " of his property, rights or credits, or some part thereof, to any person, " with any sort or kind of intent, fraudulent or otherwise.

“If this attachment can be maintained, it must be upon the bare “ fact of his causing the record of his wife’s claim for the purpose of " securing her in the event of a hostile judgment against him in the "dog suit.

“It is now firmly settled in Louisiana, that no transaction between "the husband and wife, whereby the husband seeks to transfer his " property to his wife in settlement of her paraphernal claims,' is liable “ to attack by a creditor, save for the purpose of questioning the " amount and verity of the wife’s claim, and possibly of reducing the " amount of property transferred to her in satisfaction thereof. ■ The “ insolvent husband, in this State, has the right to prefer his wife, and “such preference is not a fraud upon his creditors; nor does the " revocatory action lie to set aside any such transaction. Wilson, "Admin. vs. Chalaron, 26 Ann., 641; Levi vs. Morgan, 33rd Ann., "536; Payne vs. Kemp, lb. 818; Thompson & Co. vs. Freeman, 34th "Ann., 992; Lehman vs. Levy, 30 Ann., 745; Judice vs. Neda, 8 Ann., "485.

“That being so, it is impossible to charge that such a transaction “ was either a fraud upon the creditors, or an unlawful preference of " the wife, as a creditor, over the other creditors.

“Jn the case first above quoted, Wilson vs. Chalaron, the Supreme " Court held, that it was the duty of the husband to cause the registry “of the wife’s mortgage to be made, and that such a registry by the " husband, coupled with a giving in payment to the wife of property, “in satisfaction of her paraphernal claims, was not a lawful ground “for an attachment. This'duty of the husband to record his wife’s " mortgage does not rest on any mere dictum of the Supreme Court, "but is enjoined by Article 3330 of the Civil Code. It is impossible " for me to distinguish between the Chalaron case and this. The mo- " tive with which a man does a lawful and proper act, is utterly im- " material. In other words, in the exercise, not only of a duty, but of “ a legal right, one is not responsible to third persons for his motive, “ There is a presumption juris et de jure in such cases that his motive “ partakes of the lawful character of the act done.

“The rule that a man must be presumed to have a motive appropriate to his acts, works both ways, for good and for evil. Acta ex- ‘‘ teriora interiora secreta indicunt.

“Generous and philanthropic motives can not avail one who acts illegally. Selfish and mercenary motives can hot destroy his rights “ when his actions are legal. Mayor of Bradford vs. Pickles, (1895), “ A. C. P., 599; Doyle vs. Insurance Company, 94 U. S., p. 541.

“Mortgaging, assigning or otherwise disposing of one’s property “ with intent to defraud, or intent to give an unfair preference to one “or more of one’s creditors are grounds for attachment. Creditors “ can he defrauded by a mortgage only where it is for a false and “ fictitious debt, or where the intent of the debtor is not to apply the “ amount raised by the mortgage from a bona fide lender to the lawful “ conduct of his business or the lawful payment of his just debts. “ Every preference given by an embarrassed debtor to one creditor “ (except his wife), over another creditor, is reprobated by our laws “ and jurisprudence, whether this preference is operated by a mortgage, assignment or other disposition of property.

“Fraud, therefore, consists of two necessary elements, the concilium “ fraudis, and the eventus damni; that is, there must he a purpose to “ defraud, coupled with the doing of an act. the legal effect of which “ is to cause injury and damage.

“In this ease the verity and amount of the wife’s claim are unas- “ sailed. It was the duty of the husband to record her claim. He “had the right to prefer it to the claim of the prospective damage “ suit, and in fact, to all other claims, and therefore the alleged motive “ with which he procured the mortgage to be recorded is, in my judg- “ ment, of no consequence, yet the eventus damni could not legally “occur, and legally flow from that act.

“The plaintiff urges very earnestly that the conduct and state* “ ments of the defendant were such as to lead him to believe that the “recorded wife’s claim was purely.fictitious, put on to cover the dog “case, and that an attachment was justified, and therefore the de- “ fendant is estopped from contesting the attachment. I can not find “ in the record any condition of fact, proven or suggested, to justify “this position. The defendant made no threats to mortgage, assign “ or dispose of his property to defeat the plaintiff’s claim. On tlio “ contrary, he at all times stated that he proposed to pay his debts, “ principal, interest and costs. He told the plaintiff he would try to “ raise a thousand dollars; came back and told him that he could not “ raise it. He refused to give the plaintiff a mortgage, and thereby “give him á preference.

“He refused to settle with the plaintiff on terms other and different “ from his other credits. He made no statements, express or implied, “ that his wife’s claim was fictitious.

“An analysis of the plaintiff’s case constantly brings us back to “ the naked fact that the defendant, in fear of a judgment in a damage “suit, caused his wife to register a mortgage to secure a true and “valid paraphernal claim, due to her, and frankly disclosed to his in- “ quiring creditors the reason why he had taken this step. There is « no element of an estoppel in these facts. The defendant is not now “ attempting to mend his hold, to shift his ground, or to aver and “ maintain against Koenig a state of facts different from those which “ were fully disclosed to him when he took out this attachment. I am, “ therefore, of opinion that the judgment below, as regards the attnch- “ ment, must be set aside.

“It is therefore ordered, adjudged and decreed that the judgment heiein rendered, in the Civil District Court, be amended by striking “out that portion which maintains the validity of the writ of attneli“ment; and it is ordered, adjudged and decreed that the writ of attachment, herein issued, be dissolved at the cost of the plaintiff.

“It is further ordered, adjudged and decreed, that the plaintiff do “pay the costs of this appeal, and that, except as is herein amended, “the judgment of the lower court be affirmed.”

The paragraphs of the opinion that have particularly challenged our attention, are the following, viz:

fa) When the defendant offered to prove the verity of the claim of his wife which was secured by the mortgage in question, plaintiff’s counsel at once directed that ah portions of his petition having reference to the validity thereof, should be stricken out.

(b) That the plaintiff as a witness, made the admission that the registry of the mortgage of defendant’s wife, was the only thing that caused him to.sue out the writ of attachment.

(c) That the motive with which a man 'does a lawful and proper act, is immaterial.

,(d) That creditors can not be defeated by a mortgage when it is for false or fictitious debt, or when it is the intent of the debtor not to apply the amount raised by the mortgage to the lawful conduct of his business, or the lawful payment of his just debts.

(e) That admitting the validity of the wife’s mortgage claim, the creditor can not found an attachment upon alleged contrary statements by the debtor, the tendency of which is to impeach its verity and by this means suxierinduee such action.

(f) That generous and philanthropic motives can not avail one who acts illegally; and selfish, and mercenary motives can not destroy his rights where his action is legal.

It is the last two propositions that the opinion and judgment presently under review assails, and upon the converse of which same are founded, as will bo shown by the following extracts, vi^:

“In our appreciation the real and only point at issue in the case “ is this: Conceding, for the purpose of this case, the absolute verity “ of the wife’s claim; concede that it is the duty of the husband to “ cause the registry of the wife’s mortgage to be made and his right “ to prefer her to his other creditors, and that such preference is not a “ fraud upon his other creditors, and does not justify the attachment, * Ts not the defendant estopped from contesting the attachment when “his conduct and representations, after performing this duty and ex- “ ercising this righ 1, are of a character to justify The ordinary man’ “in entertaining a reasonable belief that the claim of the wife is fictitious and was Trumpted up’ simply to defeat a real or xrretended “ creditor, other, it may be, than the attaching creditor, who is not “ advised as to the verity .of the wife’s claim? And is, not the estop- “ pel good, even should it subsequently transpire that the wife’s claim “ was bona fide; the registry of her rights made for no dishonest pur- “ pose whatever, and that the representations of the husband to his “ creditors concerning the wife’s claim and which representations justified the attachment were false?

“If the husband, after making a donation to his wife, or after re- “ cording her mortgage rights to secure his wife her legitimate claims “ against him, should say to his creditors that he owed his wife noth- “ ing, that her claim was a mere sham, and that the transaction be- “ tween them was merely intended as a cloak to deceive and to defeat “ the collection of a certain alleged claim which he protested he did not “ owe, even although he added tliat all his legitimate creditors would “ be paid, we do not doubt that it could be seriously questioned that “ the attachment would be justified, however false his representations, “ as to the invalidity of his wife’s claim, might subsequently be shown “to be.

“If instead of the debtor saying in so many words, that his wife’s “ claim is a sham, his conduct and representations are such that it is-“justly inferable that he wishes to convey the idea, and to impress “ the belief, that it is not real; and if upon that honest belief, so in- “ duced, his creditor attaches, the attachment would be equally justi- “ fiable. Any other rule would simply be to put a premium on deception and double dealing, and to encourage, if not to suggest, to “ cunning and designing debtors the setting of pitfalls into which “they would allure their unsuspecting creditors, and then, when their “ creditors have fallen into the trap and have acted on the course pro- “ voked by the debtor’s conduct, to mulct them in damages.”

The proposition of respondents is succinctly and forcibly presented, and while to say the least, the argument is very persuasive, it can not prevail over the opinion expressed by the judge ad hoc.

We have in the petition the distinct averment that the defendant had mortgaged, assigned or disposed of, or was about to mortgage, assign or dispose of his property or some part thereof “with intent to “defraud his creditors, or give an unfair preference to some of them.”

We, have the fact established at the trial, that when proof was offered to show the reality of the wife’s mortgage claim against her husband, the defendant, that part of his petition was withdrawn altogether.

In our opinion, that was the end of the attachment, as the only ele- ' ment of fraudulent purpose and intent there was in the case originally, at that instant, passed out of the case; and it was of no consequence what the motive of the defendant was with reference to it.

In our judgment, the law of the case is correctly stated in the opinion of the judge ad hoc.

It is therefore ordered and decreed that the judgment and decree which are under review be and the same are hereby annulled and reversed; and it is further ordered and decreed that the opinion and judgment theretofore pronounced by the judge ad hoc be reinstated and enforced as the judgment and decree of the respondent’s court.

And it is finally ordered and decreed that the cost of this proceeding-he taxed against the plaintiff and appellee.