text:
    No. 10,930.
    Searcy & Co. vs. Their Creditors.
    Judgments homologating as far as not opposed the accounts of an administrator or syndic, fix the rank of creditors and order of distribution stated in the account and such judgments can not be disturbed by subsequent judgments except so far as concerns opponent, if his opposition is sustained, lá La. 242; 7 N. S. 182; 1 Hen. Digest, 759, No. 29, et seq.

    The lessor’s claim for rent and certain privileged debts rank the debt of the vendor of movables, and when the funds brought on the account it is manifest, leave nothing for such vendor after satisfying the privileged debts preferred to him — the judgment directing him to be put on the account will be reversed.
    PPEAL from the Oivil District Oourt for the Parish of Orleans. King, J.

      Wm. Armstrong Attorney for Synidic and Zacharie & Armstrong Appellants: '
    The landlord’s lien extends only to the contents of leased premises, and as to such contents, primes the vendor’s privilege.
    Both are outranked by law charges, as to the particular effects upon which they apply.
    Law charges include all costs and expenses that are necessary f or the distribution of the effects of an insolvent estate, and enure to the benefit of creditors in general. Among these are notary’s fees, fees of attorneys in advising the insolvent and preparing schedules, etc., for surrender, fees of attorneys to the provisional syndic and syndic.
    Notaries, attorneys to insolvents in preparing schedules for surrender, attorneys to provisional syndic and syndic, have a first lien and privilege on the effects of an insolvent estate concurrent with other court costs and expenses of administration.
    Debts of a succession or those of the estate of a ceding debtor are of a higher dignity and are to be paid before those of the deceased or insolvent. 10 L. 438.
    Where the record demonstrates as a fact that avendor’s privilege upon a movable is absorbed by admitted superior privileges thereon, such as the cost of preservation, court costs and landlord’s lien, the vendor is without legal interest to question the relative rank of the landlord’s privilege and another admitted legal privilege upon other effects of an insolvent estate not subject to the vendor’s pivileg'e.
    i tigants are not allowed to champion vicariously the rights of others where no benefit results therefrom to themselves.
    Judgments approving and homologating a final account of a syndic (except as opposed), are final and conclusive and constitute res adjudieata as to all creditors who have not filed any oppositions to the account within the delays prescribed by law, or who have subsequently acquiesced therein.

      Guy M. Hornor Attorney for Opponent and Appellee:
    The vendor is entitled to be paid out of the proceeds of the thing sold before other privilege creditors, with the exception of the charges of affixing seal, for making inventories, and others necessary to procure the sale of the thing. Mon-rose vs. His Creditors, 2 Rob. 280; Lauve vs. His Creditors, 2 Rob. 527; C. C. 3267.
    The commissions of syndic upon the property sold take precedence of the vendor’s privilege as an expense of administration resulting to the benefit of the vendor, but not so the fees of the counsel for insolvent, nor the counsel for syndic, nor the attorney of absent creditors. ¡ Marsh vs. His Creditors, 11 An. 469.
    The vendor of an immovable,°in the settlement of the succession of the vendee, is entitled to be paid in preference to every other claim except those charges which have been necessary to procure the sale of the thing. Of these charges attorney’s fees form no part. Succession of Markey, 22 An. 265.
    The homologation of a tableau wherein not opposed is absolute, and no creditor who has not made opposition can do so, even on the ground of oppositions . filed by others before the homologation. Yentriss vs. His Creditors, 20 An. 359
   The opinion of the court was delivered by

Miller, J.

This is an appeal by the syndic and his attorneys from the judgment of the lower court maintaining an opposition of a creditor to the syndic’s account. The funds in his hands were mainly derived from the sale of the effects in premises leased by the insolvents, and the rent for the unexpired term of the lease is unpaid. Among these effects were certain movables, bought by the insolvent, sold separately at the instance of the unpaid vendor, realizing more than enough to pay him, and on the proceeds he asserts the vendor’s privilege. Besides the funds arising from the sale of .all these effects in the leased premises subject to the special privileges of the lessor and vendor, there are funds for distribution derived from other sources.

There were two accounts filed. The first exhibited privileged debts incident to the syndic’s administration and others; the aggregate of all these privileged debts were deducted from the mass of the funds and the residue awarded to the lessors. It is obvious the account was not framed in accordance with the provisions of the law directing the distribution of funds when there are general and special privileged debts to be paid from funds, a portion of which are subject to no special privilege, and another, in this case the larger portion, is charged with the privileges of the lessor and vendor. •Civil Code, Arts. 8191, 3252, 3254, 3256, 3263. The account was homologated as far as not opposed, the only opposition coming from the unpaid vendor of the movables sold separately. The opposition asserting the right of payment over all, save the charges of sale, from the proceeds of the movables, was sustained and the syndic directed to recast his account. The syndic then filed another account, in which he pursued the same method of distribution of paying the mass of all privileged debts from the mass of all the funds. This account was homologated as far as not opposed; like the first met with no opposition except from the unpaid vendor asserting his privilege for the unpaid price, on the proceeds of the movables he had sold, paramount over all save charges of sale. On the last account the total funds were stated $3390. The privileged debts, attorneys and notaries’ fees, auctioneer’s commissions, syndic’s commissions, clerk hire and others figured on the account amounting to §1813.11. All deducted from the mass of all the fundsleft §1576.97, and this residue was awarded to the lessor, his unpaid rent amounting to §2700.00, for which he was put on the account. The lessor was left unpaid for a large portion of his rent, and there was nothing for the unpaid vendor. On the opposition the court decreed that privileged debts —i. e., charges for attorneys and notaries’ fees, were inferior to the privilege of the unpaid vendor, and that he should be placed on the account with preferences over these fees amounting to $590; the-court farther decreed that the lessor as well as the vendor had preference over these fees, and reduced §100 on the account as reserved for costs to $20. Prom this judgment on the opposition this appeal is taken by the syndic and his attorneys, whose fees are subordinated by the judgment to the special privileges. The contention of the attorneys is, that by the judgments homologating the accounts as far as not opposed, their fees were to be paid by preference over the lessor; that these judgments constituted res judicata against the lessor, who made no opposition. The contention of the syndic is, that he can pay only to the extent of the funds in his hands, and that the uncontested privileged debts and the lessor’s unpaid rent, more than absorb all the funds, hence the judgment is erroneous in ordering the opponent to be put on the account.

The judgments homologating these accounts as far as not opposed determined as against all, save the opponent, that all these-privileged debts were to be paid before the lessor. Whatever may be said of the method of distribution adopted by the syndic these judgments must have effect. Burrell vs. Read, 14 La. 242; Mayfield vs. Comeaux, 7 N. S. 182; 1 Hennen’s Digest, p. 759, Nos. 2, 9, et seq. The lessor whose privilege is superior to that of the opponent (Civil Code, Art. 3262) is certainly bound by these judgments, according preference to all privileged debts. This preference fixed by the judgments homologating the account, could not be disturbed by the judgment of the lower court subsequently rendered on the opposition only of the unpaid vendor. On that opposition the privileged debts to the extent of $590, are excluded from competition with opponent. But with that exclusion there remains on the account privileged debts ranking as first in order of payment amounting to $1223. These debts as to amount, save the reserve of $100, were not called in question by the opposition. The judgment unappealed from by the opponent leaves them in full force. The lessor’s claim figures on the account at $2740, not opposed and maintained by the judgment. Thus, there stands between opponent and the relief he seeks over $3900 of superior privileges recognized by final judgment. The privileged debts to the extent of $1223 are beyond the domain of contention by the absence of opposition, and the judgment acquiesced in, and the priority of the lessor over the opponent is fixed, not only by the judgment but by the law (C. C., Art. 3258). The judgment of the lower court responding to the demand of the opponent asserts the preference given .to him, when there are funds that can be so applied, consistently with debts of the higher rank. ■ The difficulty in opponent’s caséis that in the plenitude of his privilege, still there is no room for him on the account.

It is therefore ordered, adjudged and decreed that the judgment of the.lower court be avoided, annulled and reversed at the costs of the appellees.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 11,485.
    A. Adler & Co. vs. Burton Lumber Company.
    The vendor preserves his privilege though he takes notes for part of the price, and no presumption that he novates the debt and extinguishes the privilege arises from the fact that in acknowledging delivery of the notes he gives a receipt worded: “I acknowledge receipt of the price, payment being satisfactory and in notes,” especially when by the contract notes were to be given for part of the price, and besides when it appears by the testimony no novation was intended. To hold that the privilege of the vendor was extinguished under such circumstances would be subversive of the principle that novation is never presumed, but is accomplished only by discharge of the debt or express agreement of the parties (Civil Code, Arts. 2185, 2190, 3227; 16La. 469; 34 An. 535); cases collected in 2d Hennen’s Digest, 993, No. 1; 4 An. 313; 3, An. 600.

      To sell the property of a defendant before any judgment against him is to exercise power which, if the courts can exercise it, should be exerted only in exceptional cases, and this is not such a ease.
    APPEAL from the Fifteenth District Court, Parish of East Baton Rouge. Buckner, J.

      Kernan & Laycock Attorneys for Plaintiffs and Appellants:
    An affidavit clearly setting forth the character of a debt, to which the law grants a privilege, is an affidavit to the privilege, and is in this respect sufficient to warrant an order for sequestration. C. P. 276.
    The court may order the sheriff to sell sequestered property pendente lite, if it he perishable. C. P. 288; Oalder vs. Creditors, 44 An. 455; 15 La. 481; 12 An. 552; 11 La. 444; 41 An. 742.
    The vendor’s privilege need not he expressly stipulated; its renunciation must not he doubtful, but the language must clearly imply that the creditor intended to give up this right. Baker vs. Frellsen, 32 An. 827; Bacchus vs. Moreau, 4 An. 318.
    The change of the form of a contract or a modification of the manner of the execution thereof does not effect novation, which is neverpresumed andmust he expressly stipulated or result clearly from the language used. Aillet vs. Woods, 24 An. 193; 34 An. 927, 534, ¡113; 1111. 9; 4 An. 281; 5 An. 436; 6 Xn. 669; 5 An. 508, and Pothier on Obligations, Sec. 559; B. C. C. 2182, et seq.

    The receipts of the vendor, without reserve of privilege, for notes in payment of the debt does not novate the debt or extinguish the privilege. Marcadé Code Napoleon, Yol. 4, p. 458, No. 76S; Troplong des Privileges etHypotheques, Vol. 1, p. 304; Aubry & Ban, Droit Civil Franjáis, Vol. 4, p, 218, Sec. 324; Demolombe des Contrats, Vol. 5, p. 209, No. 297; Aillet vs. Woods, 24 An. 193.

      C. O. Bird and Alvin E. Bead Attorneys for Defendant and Appellee :
    Sequestrations * * * by which the property of a party is -wrested from his possession, and taken into the custody of the law before judgment, without notice, and upon the ex parte showing of the plaintiff, are extraordinary, and hence the doctrine has been uniform, that they are to tee strictly construed, and that the requisites of the law must be observed on pain of nullity. 2 An. 415; 1 An. 308; 2 An. 920; 11 Rob. 158; 3 La. 18; 4 An, 456.
    Affidavit as to material fact only on belief is insufficient to obtain powers. Bergh vs. Jayne, 7N. S. 609; McFarland vs. Richardson, 1 An. 13.
    When note is received in payment, privilege is lost. 2 N. S. 144; G N. S. 657; 3 La. Ill; 16 La. 140; 2 An. 175; 4 An. 543; 14 An. 54.
    There is no law -which authorizes the sale of sequestrated property, as there is in eases of attachment.
   The opinion of the court was delivered by

Miller, J.

The plaintiffs, holders of promissory notes given by the defendant for the credit portion of the price of certain logs purchased by him, bring this suit to compel payment of the notes. The original and supplemental petitions set forth the purchase of the logs by defendant, the execution and delivery of the notes in part settlement of the price, the acquisition of the notes by plaintiff, and there is the averment that plaintiffs are informed and believe that the notes are secured by the vendor’s privilege. On these petitions, supported by affidavit, a writ of sequestration issued and the logs were seized by the sheriff. The plaintiffs soon after applied for an order to sell the property pendente lite on the ground that lying in the Mississippi river, it was expensive to keep and liable to be lost.

The defendant moved to dissolve the writ on the grounds that the affidavit was insufficient and that plaintiffs had no privilege.

The lower court dissolved the writ on both grounds and dismissed plaintiffs’ application to sell the property. Prom this judgment plaintiffs appeal.

The motion to dismiss for supposed insufficiency of the affidavit is based on the averment in the petition that plaintiffs are informed and believe that the notes are secured by the vendor’s privilege. This privilege arises from the nature of the debt. The petition set forth that debt — i. e., that the notes were given to the vendor by the defendant for the price of the logs, and that the notes are unpaid. These allegations are supported by the requisite affidavit. The averment in the petition that plaintiffs are informed and believe that the notes are secured by the vendor’s privilege, announce merely the legal conclusion necessarily arising from the facts stated in the petition and sworn to by the attorney for plaintiff. We can not perceive any defect in the affidavit.

It was stipulated in the contract for the purchase of the logs that the notes were to be given for part of the price. The vendor from whom or through whom plaintiffs acquired the notes, gave to defendant a receipt reciting the receipt of the price of the logs, stating settlement in full, with this addition: “the payment being all satisfactory and in notes.” The contention of defendant is that under the receipt expressing “ payment in notes ” there is no privilege on the logs, or in other words that the privilege of the vendor is destroyed because of the form of this receipt.

The vendor’s privilege arising by operation of law from the contract itself, is not readily presumed to be relinquished. The privilege exists without stipulation, and its relinquishment is to be deduced not from inference, but only from the consent of the vendor expressed or plainly implied. Bacchus vs. Moreau, 4 An. 313 ; Boner vs. Mahle, 3 An. 600. It is not easy to infer any release of the privilege from the frame of this receipt. After all, the supposed relinquishment involves the question of intention. It would be forcing the significance of words to hold that the vendor intended to surrender his privilege by the words “ payment in notes.” The words themselves imply not a payment absolutely, but the giving of notes to represent the price.

Of course, novation of the debt extinguishes the privilege. But is there any novation by the creditor taking notes from the debtor for the debt? This would seem to be answered in the negative by the text of the Oode — that the privilege subsists though the creditor take a note, and by the articles of the Oode defining novation. Oivil Oode, Arts. 3227, 2185, et seq.

Novation not arising from the fact that the vendor takes notes for pricé, nor arising from any inference consistent with the significance of the language of the receipt, the remaining contention of defendant is that the receipt expresses payment of the debt. Does it? The receipt is qualified. It is receipt for the price, payment in notes.” The qualification is material. Its import is that the debt is not paid, but still subsists in the form of notes. The receipt imports a mere change of form, but the debt itself with the privilege attached to it remains. In reaching this conclusion we are aware there are some dicta seemingly to the contrary as to the import of “received payment by notes.” We can not give to the words used here the meaning of an absolute payment, a meaning we think, repelled by the language and the manifest intention of the party. We are aided, too, in this case by the proof in the record that there was no intention to novate. The authorities later in date in our own reports sustain, we think, our conclusiou, and as to the French authorities arrayed in the brief of plaintiff, they are practically unanimous that there is no relinquishment of the privilege in a case like this. See Bourgeat vs. Smith’s Syndic, 16 La. 469; Bergeron vs. Patin, 34 An. 535.

But the application to sell the property pendente lite, we do not think should prevail. To sell a defendant’s property before any judgment against him for the debt, occurs to us as involving the exercise of power which, if it exists, at least, is to be exerted only in exceptional cases. Without passing on the question of power at all, it suffices to say, we decline its exercise in this case.

The views we have expressed control the decision, and obviate more detailed reference to other points in plaintiff’s briefs, to which we have given careful attention.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed in so far as it refuses the application to sell, and reversed in so far as.it maintains the motion to dissolve plaintiff’s writ of sequestration, and appellees pay costs.


author: Breaux, J.

text:
    No. 11,484.
    Mary E. Clark and Husband et als. vs. John Comford et al.
    On Motion to Dismiss the appeal.
    The deputy clerk certifies that the transcript of appeal, together with the record of a previous appeal, is a correct transcript of all the proceedings.
    The appellants were parties to the suit in the previous case and failed in their attempt to sustain their appeal.

      Held: that records of the clerk’s office of this court may be used here, on appeal, to complete the record of a transcript, when it is manifestly a correct transcript of the proceedings in the court of original jurisdiction, and that another transcript would only be a second copy of the proceedings.
    On the Merits.
    The reasons assigned in a case previously decided and the decree are adopted and followed.
    The plaintiff and appellant whose rights were considered and passed upon in the prior appeal, in which he alone was appellant, was the co-plaintiff, in the District Court, of the appellants, in the case at bar.
    Two separate appeals were taken at different times from one judgment.
    The reasons and decree in deciding the issues on the first appeal are determinative and followed in the second appeal.
    APPEAL from the Sixteenth District Court, Parish of Livingston. Reid, J.

      J. L. Bradford and Calhoun Fluker Attorneys for Plaintiff and Appellant.

      Cross & Cross filed motion to dismiss, but did not argue the case or submit briefs.
   The opinion of the court was delivered by

Breaux, J.

This case was before us for decision at the last term. 45 An. 502.

This court decided that only one plaintiff, to-wit, Nathaniel Ewing, was a party to the appeal.

The bond of appeal was executed by him alone.

The other appellants not having executed any appeal bond whatever the court decided that they could not be heard in that capacity.

As to those plaintiffs and appellants who had not furnished bond, the judgment of the court a qua at that time remained, rejecting their demand to be recognized as owners of the property described in their petition.

Also rejecting their prayer to annul and set aside an agreement of sale, and to annul and set aside the sale of any portion of the land by John Oomford to Thomas Cockerham, and denying the rent claimed and their right to possession.

The judgment thus rejecting the demands of plaintiffs was signed by the judge of the District Court on th 12th day of December, 1892.'

There was judgment rendered “as against the appellant of non-suit, leaving all questions open between appellant and defendant which are involved in this litigation.”

The decree reads: “ For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment of the District Court, in so far as it affects the appellant, Nathaniel Ewing, be and the same is hereby annulled, arrested and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of the defendants against the plaintiff, Nathaniel Ewing, dismissing his demand as in case of non-suit.”

In this state of the case there was an absolute judgment in the District Court in favor of the defendants and against all the plaintiffs, except Nathaniel Ewing, appellant, against whom there is a judgment of non-suit, pronounced by this court.

On the 31st day of August, 1893, Mary E. Clark, wife of Robert D. Clark, and all her co-plaintiffs in the suit except Nathaniel Ewing, who had been non-suited on appeal, obtained an order of appeal returnable to this court on the second Monday of February, 1894. The appeal was perfected by furnishing the required bond.

Motion to Dismiss the Appeal.

The appellees represent that the appellants have completed their record in this case by annexing the record in Clark et al. vs. Comford, No. 11,220 of the docket of this court.

That the clerk who certified the original record died before the certificate to the record in the case at bar was made, and that the deputy clerk who certified to the correctness of the transcript could not possibly have knowledge of the facts so certified to by him.

The deputy clerk, whose authority is questioned, certifies that the transcript in the case at bar, together with the record already filed in this court in the case heretofore dismissed by us (viz.: the case of Clark ef al. vs. Comford et al., No. 11,220), is a correct transcript of all the proceedings in the case of Mary E. Olark et al. vs. John Oomford et al., No. 201 of the District Oourt, the case now before us on appeal.

The plaintiffs, prior to the last appeal, and the appellant Ewing, had deposited a transcript which formed part of the records of this court.

It contained copies of all proceedings, except those subsequently copied, on four pages which constitute the record of the last appeal, to enable them to bring up their appeal.

There is not a fact needful to a decision of the case that is not before us on appeal.

The appellees do not complain that the transcript is incomplete; they only urge that the officer could not certify to the correctness of the first transcript filed (i. e., of the transcript of record in the decided case).

That transcript has the certificate of the clerk in office at the date of the appeal. ' It needs no further certification.

Generally, these records of appeal must remain in the custody of the clerk of this court and no permission will be given to use them as evidence and to actually introduce them in evidence in the trial of eases in other courts.

There can be no well founded objection, however, to the use here on appeal of a former record in this court in order to avoid copying twice the proceedings of a case.

This practice has received sanction when preceded by agreement of counsel.

The court also has granted permission to use records here, within its direct control, to complete a transcript when it was evident that they contained correct copies of the proceedings needful on appeal. Vredenburg vs. Behan, 32 An. 261; Harrison & Bro. vs. Their Creditors, 43 An. 91.

It is manifest that there is of record complete transcripts of all the proceedings and that each transcript has to it a legal certificate.

Had an agreement been entered into between counsel prior to the last appeal, to have the record annexed as forming part of the records, it would have served all purposes without question.

Had an order of this court been applied for (the more regular practice), under the circumstances it would have been granted.

The failure to apply for the order will not carry with it the dismissal of the appeal, it being evident that the case is properly before us for decision.

The motion to dismiss the appeal is therefore overruled.

On the Merits.

Counsel for the appellants in support of their appeal refer us to the statement of facts upon which the case, in so far as relates to Nathaniel Ewing, was submitted to this court and to their brief in that case.

The issues received careful consideration at the time.

No good reason is urged to justify a change from our previous decree or to recall any of the grounds upon which it was based.

The conclusion reached must be the same in the case at bar, and ■ the reasons assigned must be held to apply.

All the plaintiffs have the same rights and are subject to the same responsibility.

It follows that the same is true of the defendants inter se.

It is ordered, adjudged and decreed that the judgment of the District Court appealed from in this case, in so far as it affects the appellants, Mary E. Clark, assisted by her husband, Robert D. Clark, Mary V. Ewing, John K. Ewing, Jr., Samuel E. Ewing, Belle E. Howell, Eliza W. Wilson, assisted by her husband, R. H. Lindsay, Catherine W. Wilson, assisted by her husband, H. W. Hazard, and Mary Wilson, assisted by her husband, J. W. Harrison, be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of the defendants against the plaintiffs, Mary E. Clark and others, above named, dismissing their demands as in case of non-suit.


text:
    No. 11,464.
    Michael Vanosdel, Curator, vs. John A. Hyce.
    .It is not established that the person interdicted in 1893, whose curator sues to set aside a deed o£ sale, was non compos mentis in 1879, at the date of the sale; nor is it established that he was at the time, because of the weakness of his mind, unable to give his consent intelligently as a vendor of his property.
    Generally, an executed contract, fairly made with one who was apparently of sound mind and not known to be otherwise, and of which he had received the benefit, can not be avoided by his legal representative more than fourteen years after the date of the contract.
    APPEAL from the Fifteenth District Court, parish of East Baton Rouge. Buchner, J.

      H. N. Sherbourne and T. A. Moore Attorneys for Plaintiff and Appellant :
    Although no sentence of interdiction may have been pronounced, yet it will be sufficient to vitiate a contract if it can bejshown that insanity or imbecility of mind has been taken advantage of. Holland vs. Miller, 12 An. 624; C. C. 1780-2, 1788.
    Contracts made with weak-minded persons will be closely scrutinized, and a presumption of fraud will arise from circumstances indicative of over-influence or any advantage improperly taken, which would not arise in a strong-minded person. Wharton & Stille Med. Jurisprudence, p. 10, Sec. 4; 1 Story Eq. Jurisprudence, 228; Clievallier vs. Whatley, 12 An. 651; 32 An 91,170;35 An. 441.
    •Good faith is an essential to the acquisition of property by the prescription of ten years. Edwards vs.Bellard, 12 An. 362; Walling vs. Morefield, 33 An. 11,74; Green vs. Moore, 44 An. 856; C. C. 3478.
    'The prescription of three years does not apply to the rents and revenues of property claimed in the petitory action against a purchaser in bad faith. Walling vs. Morefield, 33 An. 1174.
    'That a fraudulent act is in bad faith is self-evident.
    A person knowing- of defects of title is in bad faith and cannot plead the prescription of ten years. 44 An. 856; Walling vs; Morefield, 33 An. 1174; C. 0.503,3478-89, 3451.
    A person in bad faith owes rents and revenues from the date of his occupancy. 33 An. 744, Sec. 4, Woods vs. Nicholls.
    The prescription of three, five and ten years can not be made by a person in bad faith or causa acquirendi. 33 An. 1174; C. C. 3478, and C. C. caption Sec. 3, including Sec. 3, Art. 3542, show that the plea applies to Hberandi causa.

    'The admissibility of evidence given of facts not alleged in the petition should be objected to when offered and the point reserved, otherwise it will be considered as if it had been responsive to an allegation in an amended petition filed with the consent of the opposite party. England vs. Grippon, 15 An. 304.
    It is not necessary to file an amended petition in reply to, and explanatory of, an amended answer, as the testimony in support of its averments is admissible under the issue presented by the amended answer. Swilling vs. Law, 13 An 412. All matters of defence set up in. the answer must be considered as open to-any objection of law and fact, as if such objections had been specially pleaded. Hickman vs. Dawson, 33 An. 438.

      Kernan & Layeock and J. W. & O. W. Burgess Attorneys for Defendant and Appellee:
    To annul a contract, for the insanity of a party to it, who has not been previously interdicted, it must be shown not only that the incapacity existed at the time the contract was made, but also that the person contracting with him knew of the incapacity, or that his insanity was notorious. R. C. C. 402; 1788, Secs. 2 and 3; 5 M. 425; 10 M. 604; 12 M. 255; 4 L. 114; 12 An. 24; 38 An. 546.
    Notoriety in this sense can only be shown by the testimony of those who generally saw and conversed with the person incapacitated.
    Insanity, urged as the cause for invalidating a contract, must be clearly proved; doubts are resolved in favor of the sanity of the person contracting. 12 M. 255.
    Where the consideration of a sale enured to the benefit of the interdict, it can not be annulled on the ground of the insanity of the vendor without restitución of the purchase price; and, in any case, the vendee must, on proper pleading and prool, have judgment for his improvements up to the sum by which they have enhanced the value of the property.
    A suit brought to annul a sale more than fourteen years after its execution is a stale demand, which must be established by the clearest and most convincing proof.
   The opinion of the court was delivered by

Breaux, J.

In 1893 suit was brought against Enoch Yanosdel and his interdiction decreed.

The plaintiff was appointed his curator.

This suit was brought by the curator to annul and set aside a deed' of sale, dated the 22d day of January, 1879, signed by Enoch Vanosdel, as vendor of a tract of land containing 160 acres, to the defendant. The vendor reserved the right to purchase back the property, until the 1st of January, 1880, by returning to the purchaser the amount paid by him on the property, and returning the promissory note representing a portion of the purchase price. He remained in possession after the sale, which was intended as a security for advances to be made by the vendee. On the 21st day of November, 1879, Enoch Yanosdel acknowledged in a notarial deed, signed also by his wife, that he had received the full amount of the purchase price, and renounced the right of redemption stipulated in the deed of 22d January, 1879.

This land was acquired by Enoch Va-nosdel from G. W. Martin in an exchange, dated 12th January, 1879.

Two of the deeds were passed before John McGrath, recorder of the parish of East Baton Rouge.

From the 1st of June until the latter part of October Enoch was afflicted with mental alienation, and was a patient during that time at the Insane Asylum at Jackson, undergoing medical treatment.

The purchaser, prior to the signing of the confirming deed of November, 1879, paid $100 to Enoch and $100 to his wife, making $2300, according to Hyce’s account. The act of sale was for $1500.

The witnesses testify that it was about all that the place was worth.

With reference to his mental condition, G. A. Bozeman, a farmer residing near this vendor, Enoch, in 1879, and who subsequently was ■employed in the sheriff and assessor’s office, and had opportunities to judge as to whether he was insane, testifies that he knew him intimately, and regarded him as a man of sound mind in the early part ■of 1879.

The sheriff of the parish and a number of other witnesses testify that they knew him, and never noticed that he was deranged prior to the date he was sent to the Insane Asylum; that after leaving the asylum in 1879 he appeared sane; that he voted intelligently, and ■sought to support himself and family, consisting of wife and children.

The notary before whom the acts were passed testifies that there was nothing in the conduct of the vendor, when he passed these acts •of sale, to indicate that he was in the least deranged.

Dr. T. S. Jones testifies that he has known Enoch Vanosdel over forty years, that he was a stupid boy, bút that he can not state that he was an imbecile.

Other witnesses testify that he was always weak-minded, and refer to certain of his acts as showing insanity.

The testimony, however, does not sustain the contention of the plaintiff that at the time of these transactions Enoch was incapable of transacting business or of making contracts for the want of sufficient intelligence and sense to manage' his affairs, and that in his weak mental condition he fell an easy prey to the wiles and machinations of the defendant Hyce'.

More than twenty witnesses, who knew him well, resided in the same parish; many of them his neighbors, who met him frequently, conversed with him and knew of his different business transactions, £ estify that they did not know of any of his acts indicating insanity, and that they had never heard that he was insane at the time that the ■■ deeds were passed.

The transactions at the time were not referred to or spoken of in the community by any one, in so far as the evidence discloses, as the acts of imposition and fraud by an unscrupulous neighbor, the defendant merchant.

The brother who became the interdict’s curator and the plaintiff in this suit, in that capacity, had a business transaction about the same time with the defendant. He also obtained advances from the • defendant and deeded to him the same number of acres of land,, worth about the same amount, to secure the advances.

It does not appear that the terms and conditions differed materially from those complained of in.this suit.

Not long subsequent to that date the plaintiff himself had business ■ dealings with his brother.

While unimportant in amount they do not have a tendency to ■ establish that he was known as a person of insane mind.

One of the witnesses testified that she had told the defendant that. Enoch was a “ man of very little sense,” that “ he was idiotic,” and', that he had never transacted any business.

She is the only witness who testified as to any notice to the defendant. She is not corroborated by the weight of the testimony, par- N ticularly in so far as relates to business transactions, for it is welL established that he did transact business.

The defendant denies that he was ever notified or received any-warning not to deal with him.

More than fourteen years had elapsed; the transactions remained unquestioned all these years, without even adverse comments; we-do not feel authorized to disturb these executed contracts.

In reference to the advances made by the defendant on the property placed in his name as security:

A receipt in notarial form was executed after they had been fur- • nished.

The mules that were part of the property thus advanced are said; by several witnesses not to have been worth the amount charged.

The record discloses that they were not sold directly by the defendant, as appears from the following:

“ W. H. Wright, sworn, says:

Q. “ Did you let Mr. Enoch Yanosdel have soma-mules during the-first part of the year ’79? If so, please state how many, at what, price and who paid you for them? A. I sold some mules to Mr. Vanosdel in the early part of ’79. I sold him, I think, four mules; I ain’t sure. Mr. Vanosdel, as I recollect, came here to Baton-Rouge. He wanted to buy some mules and he looked at the stock; he told me he would buy them and he would make arrangements, with Mr. Hyce to pay for them. I went up to Mr. Hyce’s place and he, Mr. Vanosdel, was at Rolling Fork, and he, Mr. Hyce, was not present at the time. I left the mules and horses there. I sold them to him, but I can not tell you the price of them; I have fqrgotten — I can not tell the price.

Q. “Mr. Hyce paid you for them? A. Yes, sir; I think it was. about two weeks afterward he paid me.

Q,. “Was it a fair price that you charged Vanosdel? A. I had a talk with Mr. Hyce and he told me any kind of a deal that I made-with this man would be ali right. He told me that he did not want to make any money on it himself. He said: ‘If you sell any stock-to my tenants, I don’t want to make any money on it.’

Q. “You made the trade with Enoch Vanosdel? A. He bargained with me for the stock. I left them there and Mr. Hyce paid me for them afterward.

Q,. “In dealing with Enoch Vanosdel did he strike you as a man who would be able to take care of his side of a trade. A. I did not see anything wrong with him any more than any other man.”

Reiative to the remainder of the account the testimony does not. show an advantage improperly taken.

The witnesses for plaintiff state that advances were made of such provisions as he and his laborers needed.

There were also certain debts paid. The mere impression of certain witnesses that there were overcharges would not justify the-conclusion that the amount advanced did not amount to, at least, $1500, the price and value of the property in controversy.

In Ohevalier vs. Whately and Husband, 12 An. 561, a well considered case, the court held that contracts with weak-minded persons will be closely scrutinized and those who deal with them held to a. strict standard of good faith.

The facts of that case make manifest the correctness of the conclusion regarding them.

The object of the suit was to annul two acts of sale executed, one on the 28th December, 1847, the other on the 26th February, 1848^

The vendor died in 1853 and the suits were brought immediately after his death.

The professed consideration of one ot the sales was not paid at all.

The consideration seemingly of the other sale consisted of property which continued as before, and as they always intended it should continue, to belong to the vendor.

The vendor was an excessively weak-minded person, most easily duped and deceived.

The defendants were his relatives and he was living with them. Their influence as relations and protectors over one of his mental incapacity was obvious.

The court concluded that advantage had been improperly taken of the weak-minded vendor by his relatives, the vendees.

In the case at bar, the time which elapsed between the date of sale and that of suit is much greater.

The sale was not without consideration, and it was not notorious that the vendor was weak-minded, nor is the fraud charged obvious.

In case of Holland vs. Miller, 12 An. 624, the fraud was not established. The court says: “ Contracts would rest on a very weak foun - dation, if those of the most solemn character could be avoided on allegations of insanity, when the proof thereof is contradictory.

“It would be.necessary for the contracting parties, before the execution of the contract,- to inquire into their mutual mental soundness.”

These utterances apply to the case at bar.

In Baumgarden, Curatrix, vs. Langles, 35 An. 441: On the 31st December, 1877, Baumgarden sold to Langles.

Suit to annul the sale was brought on the- 30th December, 1878.

One of the grounds was fraud, in .that defendant being well aware of Baumgarden’s mental weakness,, took advantage thereof and that by threats, improper influences and false and fraudulent representations induced the vendor to sign the deed of sale.

The proof was. not clearly established.

The court affirmed the judgment of the District Court rejecting the demand. ... ■

The law treats with special regard those unfortunate beings .deprived of understanding .by some, providential dispensation.

It also treats with tenderness those whose mental weakness renders incapable of managing their affairs;.but neither applies in the case at bar, for the evidence does not establish that the sadly afflicted man who was interdicted in 1893 was insane in January, 1879, nor does it establish that he was at the last mentioned date notoriously weak-minded and incapable of giving consent to a contract for advances to enable him to cultivate bis place.

The judgment appealed from is affirmed at appellants’ costs.


author: Watkins, J.

text:
    No. 11,471.
    W. K. Bender (Vicksburg Bank Subrogated) vs. James R. McDowell.
    The substance of our jurisprudence on the subject is that a certain degree of sanetity attaches to the act of an attorney at law as an officer of court, which raises a legal presumption that it was authorized, and imposes on the client denying his authority the duty of supporting his denial with an oath, in order to overcome that presumption and put the opposite party to the proof of his authority.
    But this rule is not exclusive of all others; and such an oath is not a condition precedent to the administration of any proof on the part of the party who denies the authority of the attorney. It is permissible for such party to go on the stand and testify on the subject.

      Montgomery, J. PPEAL from the Seventh District Court, Parish of Madison.

      A. L. Slack Attorney for Plaintiff, Appellant:
    Whore, in an action under R. 0. 0. 3517 to revive a judgment, the defence is that the attorney who represented the defendant and waived service of the petition, upon which judgment by default was confirmed, was unauthorized, such allegations must be supported by the oath of the defendant, as a condition precedent to setting up such want of authority in the attorney. “ No contrary doctrine has ever been held.” Doekham vs. Potter, 27 An. 71; citing and affirming, 9 M. 88; 10 M. 639; 8 N. S. 232-5; 114.23; 12R.95-7; lAn.39S; a An. 558; 5 An. 118; 10 A11. 67; 21 An. 238; 20 An. 201.
    A defendant in such a suit, who thus failed to verify such allegations by a previous oath as to their verity, should not be permitted to testify in his own behalf.
    Evidence going to show the motive or inducement upon which a phrty acted, and what was said and done at the time, is not hearsay, but original evidence; so where the attorney of the plaintiff in the original suit offers to prove what the attorney of the defendant said and did in regard to his waiver of service of the suit sought to be revived, such testimony is not only in rebuttal, but is párt of there»gesta; and unqualifiedly so, when the attorney who acted for the defendant is dead, and can not testify in his own behalf.
    An attorney can “ waive the service of the plaintiff’s petition.” C. P.177; 8 N. S. 31-5; 1 An. 398; 6 An. 709. . *;• ’ -

      Waiver of service is a legal notice to tlie defendant of the pending suit, and “ such waiver has the same effect as if citation had been served by the sheriff.” Sexton vs. Brooks, 12 La. 596 * So in the defence here, it is on a parity with a case in which a defendant sues to annul a judgment, on the ground that the return of the sheriff on the citation is false. 24 An. 832.
    The burden of proof is on the defendant, for he must show “good cause why the judgment should not be revived.” R. C. C. 3547; Levy vs. Calhoun, 34 An. 415.
    The uncorroborated testimony of the defendant in his own behalf, against the acts of a dead man, is of the weakest kind, and not entitled to sufficient weight to warrant a judgment. Such testimony should be “ strengthened by strong, or at least reasonable, additional independent proofs.” 37 An. 97; R. 0. C. 2283.

      E. D. Farrar and W. M. Murphy Attorneys for Defendant and Appellee:
    It can not be for a moment doubted that a party condemned without citation or hearing could sue to have the fact judicially determined, and yet more evidently that he may use the same fact as an exception to preserve his rights if sued. This he may do at any time the judgment so obtained is sought to be enforced against him for any purpose or in any manner, and even could it be held that he must bring such a suit within a fixed time, as it can not, by the express terms of Art. 612, C. P., nowhere and to no class of cases is more applicable the maxim, jg\uce Umporalia^ta. Oonery vs. Rotchford, Brown & Co., 30 An. 692.
    In au action to revive a judgment defendant is permitted to show want of citation or the nullity of the judsrmentresulting from any cause. And defendant, setting up the defence that counsel in the original suit had no authority to represent him, need not file an affidavit of want of authority in the attorney as a prerequisite to establishing that fact on trial. 80 An. 363; 27 An. 74.
   The opinion of the court was delivered by

Watkins, J.

This is an action to revive the judgment rendered in the case of W. K. Bender vs. J. B. McDowell, on the 11th of June, 1883, of which the subrogee subsequently became owner; to which the defence tendered in the answer is, that no valid judgment had originally been rendered against him, as he had never been cited. The answer specially denies that he ever employed or authorized any attorney to represent him in said proceeding, either to make an appearance, to accept service, or in any manner whatever.

In the record appears a written acceptance of service of the suit in which judgment is sought to be revived, and citation waived, by Spencer & Lucas, as attorneys for the defendant. And on this acceptance and waivor a judgment by default was entered, which was made final on the day the judgment was signed.

When the defendant was offered as a witness in his own behalf, the plaintiff objected to his evidence on the ground that he could not be heard to testify as to want of citation, or that the counsel who represented him was unauthorized to represent him, because he had not made oath to the truthfulness of the averments of his answer.

This objection was overruled in the court below, and the plaintiff’s counsel retained a bill of exceptions.

As this is the controlling question in tie case, and it is presented at the threshold of the investigation, it must be disposed of preliminarily.

We note the concession stated in the brief of defendant’s counsel and its qualification, which are as follows, viz.:

“Plaintiff’s second objection was that defendant had not denied, under oath, the authority of counsel who pretended to represent him; and counsel relies confidently on the case of Dockham vs. Potter, 27 An. 74, and the authorities there cited.

“ That case and the authorities cited simply decide that the party alleging want of authority in an attorney who appears in court must prove the fact of want of authorization. It is, of course, clearly settled in our jurisprudence, that when an attorney so appears, being a sworn officer of the court, the presumption is that he is authorized to represent his principal; and so strong is the presumption, that the court will not listen to a party who denies the authority, unless the denial is supported by an affidavit. But in the cases relied on, the state of facts existing were very different from the facts of this case.

“In Dockham es. Potter, plaintiff sued to annul a judgment rendered against her on the grounds of want of citation, alleging want of authority in the attorney who appeared for her.

“ She not only did not support her allegations by affidavit, but did not offer one word of testimony to disprove the authority.

“The court very properly held that her bare allegations would not outweigh the presumption of authority in the attorney.

“ And in every case cited in that opinion, it will fce found that where a party has not been permitted to overthrow the presumption of authority in his attorney, it was where the party simply relied on his naked denial of authority, without attempting to show the fact by sworn testimony.”

The proposition of the plaintiff is, that when, in an action to annul a judgment, the defendant sets up as a defence, its absolute nullity because it was not founded on citation, and in support of that contention alleges, in his answer, that the attorney who accepted service was not authorized, he is obliged to support that averment by his oath as to its truthfulness, as a condition precedent to making any proof of such want of authority on the part of the said attorney.

The leading case on the question is Doekham vs. Potter, 27 An. 74; and as plaintiff’s counsel has reproduced in his brief pertinent extracts therefrom, we will quote them in their entirety as the best mode of presenting the view entertained by the court. They are as follows, to-wit:

“ His authority to consent to the judgment * * * has not been denied under oath by the plaintiff, and, until thus denied, the defendant was not required to prove it. He, the attorney, was a sworn officer bound by his oath, as well as by the principles of integrity and honor which ought to characterize the profession of which he was a member, to act correctly in its pursuits. Thus situated, it is not to be presumed that he acted in the present case without authority. On the contrary, every presumption is in favor of his having pursued a proper course of conduct, unless the contrary should be suggested by the opposite party on affidavit. * * * Hays vs. Curry, 9 M. 88. And this has been the uniform doctrine of this court since that decision.” Citing: 10 M. 639, Johnson et al. vs. Brandt; 8 N. S. 233, Dangerfield vs. Thurston; 4 R. 23, Bonnefoy vs. Landry; 12 R. 95-97, Fisher vs. Moore; 1 An. 398, Conrey vs. Brenham; 3 An. 558, Campbell vs. Arceneaux; 5 An. 118, Barnes vs. Profilet; 10 An. 67, Jeanney vs. Ricker; 24 An. 238, Succession of Massieu.

The court further said:

“ That an attorney at law * * * is presumed to have authority to do so was expressly decided in the case of Dangerfield vs. Thurston, 8 N. S. 235, and nothing to the contrary has ever been held by this court. If the plaintiff desired this court to notice the suggestion that the attorney at law * * * had no authority to do so from herself and husband, she should have alleged the fact under oath, which she has not done.

“As additional authority I refer to Succession Patrick, 20 An. 204.”

In an almost uniform manner of expression, the same precept has been announced in many preceding cases.

In Barnes vs. Profilet, 5 An. 117, it was said that “ the attorney’s authority must be presumed until disproved,” citing Hayes vs. Curry, 9 Martin, 88; Dangerfield’s Executor vs. Thurston, 8 N. S. 234; Conrey vs. Brenham, 1 An. 398.

In Campbell vs. Arceneaux, 3 An. 558, it was said that “ it is obvious that we can not permit a party to impugn the authority of the attorney upon a mere suggestion, etc. * * * Such a course is repugnant to all sound rules of law, and to the authority which courts are bound to accord to their officers.”

In Succession of Massieu, 24 An. 237, it was said that “ aside from the proof in the record, the authority of the attorney will not be presumed.” Citing 9 M. 88; 10 M. 639; 12 R. 95; 3 An. 558; 5 An. 118; 10 An. 66.

In Succession of Patrick, 20 An. 204, it was said that “we must presume that the counsel was authorized to represent his clients, the contrary not being supported by oath.”

Taken all in all, the conclusion is, that a certain degree of sanctity attaches to the act of an attorney at law, as an officer of court, which raises a legal presumption that it was authorized, and imposes on the client denying his authority the duty of supporting his denial with an oath, in order to overcome that presumption and put the opposite party to proof. We find no case which goes to the extent of holding that the making of such an affidavit is a condition precedent to the administration of any proof under his plea. We think it was competent for the defendant to be heard.

The district judge seems to have entertained a correct view of the law, and properly overruled the objection of plaintiff’s counsel and admitted the evidence of the defendant as witness on the subject.

On the merits of the case, there seems little doubt of the sufficiency of the defendant’s evidence to justify the judgment rendered in his favor.

His statement under oath as a witness is positive to the effect, that he had no knowledge of the existence of the suit until seven or eight ■years after its date; and only then became aware of it by accident.

That he never employed the attorneys who acted as his counsel in the case, and accepted service of the petition in his name. That he never had any conversation with them about it.

Counsel for plaintiff has, ex industria, collated quite a number of collateral facts and historical circumstances indicative of the employment of the said counsel. He also cites the circumstance of both members of said law firm being dead, thus rendering it impossible for the defendant’s testimony to be contradicted by them — insisting upon the rigorous enforcement of the rule so often applied in such cases, that such testimony is the weakest of all evidence, and entitled to little or no credit.

Accepting this view and giving it due weight, we do not feel at liberty for that reason to disregard the plain and emphatic statement of the defendant — however persuasive and cogent the argument against it may be.

His evidence is terse and unequivocal, and in no manner contradicted.

We see no reason for altering the decree of the court a qua.

Judgment affirmed.


text:
    No. 11,433.
    City of New Orleans vs. C. S. Dufossat et als. J. L. LeBourgeois, Third Party.
    In ease the record discloses that a third person appealing from a judgment between other parties has no interest in the appeal, that the judgment appealed from in no way aggrieves him, and does not, as to him, form res adjudicata, the appeal will be dismissed on proper motion timely made
    APPEAL from the Twenty-first District Court, Parish of St. John the Baptist. Rost. J.

      J. L. Bradford Attorney for Plaintiff and Appellee:
    In a suit to partition lands, when there are no issues between the parties thereto save as to mode of partition, and the judgment orders a sale to effect partition, it is irregular to allow a suspensive appeal to a stranger, who comes in by protest and informs the court that, as a defendant in another suit pending in the same court, he has an interest in the land which will be prejudiced by the judgment and sale. R. 0. C. 1289, 1384, 189Ó and 2452; 43 An. 1U8; 16 An. 251; 14 An. 181; 3 An. 597; 1 An. 284; H R. 16; 7 M. (N. S.) 575; 6 M. (N. S.) 350.

      James Legendre and G. V. Soniat Attorneys for Heirs of Joseph Soniat Dufossat, Defendants and Appellees:
    Appeals under Art. 571 of the Code of Practice are allowed only to third parties who have seasonably intervened and offered proofs of their pretensions before the rendition of the judgments.

      District judges have exclusive jurisdiction in partition suits; the sufficiency vel non of evidence is entirely and exclusively within the discretion of the District Courts, and this court will not reverse such decrees, unless manifestly erroneous, unjust and arbitrary, and even in this latter case the remedy is not by appeal, but by certiorari and prohibition.
    When a third party remains inactive and offers no proofs of his pretensions in the lower court, same can not be raised for the first time in a petition or motion of appeal.
    Partition .proceedings must be granted upon the application of the ostensible owners; they do not pass upon the real titles, but are mainly ex parte orders, and must be viewed with favor by our courts.

      W. J. Waguespack, Curator ad hoc for the Minors Dufossat, Char-bonnet and McClelland, Appellees:
    A judgment of partition ordering a sale of the property sought to be partitioned can not aggrieve, and is not res judicata, quoad a third party claiming on adverse title, if said third party should afterward be decreed the real owner of the property. 0. 0. 2452; 1 An. 284; 3 An. 597; 16 An. 251, 280.
    An appeal will be granted to a third party from an order of sale, where the property could not, after the sale, be wrested from the hands of third parties by a next) sui£,but it will not be granted where the property could be wrested from the hands of third parties by a new suit; in the first instance, the injury is irremedi able; in the second it is remediable. 37 An. 118; 22 An. 200; 31 An. 823; 7 R. 232.

      W. 8. Benedict and Robert G. Dugué Attorneys for Jas. L. Le-Bourgeois, third party, Appellant:
    A third person who is aggrieved by a judgment may appeal from it. [C. P. 571; 27. An. 184; 23 An. 768; 17 An. 320; 30 An. 801; 25 An. 7, 8; 3 JR. 113.
    If the record does not show his appealable interest, the case will be remanded to enable him to show it. 2 R. 398; 7 IST. S. 575 ; 6 An. 529.
    The injury which gives the right to appeal need not be so irreparable that money can not compensate it. 33 An. 133, 560; 22 An. 512; 24 An. 154; 26 An. 603; 23 An 52; 14 An. 57; 12 An. 455.
    A partition can not be ordered unless all the parties interested are properly before the court. 45 An. 1049, 1065; 12 S. Rep.496; 17 La. 384; 4An. 56, 260; 44 An.170; 15 An. 251; C. C. 1329; C. P. 1024; 41 An. 1023, 1028.
    On Motion to Dismiss.
   The opinion of the court was delivered by

Watkins, J.

The plaintiffs and defendants, as appellees, unite in a motion to dismiss the appeal, which is prosecuted by Joseph D. LeBourgeois, a person not party to the suit and judgment, on the ground that he is shown by the record to be without interest in the appeal, that the judgment rendered does not aggrieve him, and that same does not form res adjudieata as to his pretensions.

The status of this cause, in so far as it concerns this motion, is completely and accurately stated in State ex rel. City of New Orleans vs. Judge, 45 An. 950, wherein relators — who are plaintiffs here— demanded the revocation and annulment of the order of appeal which the respondent had granted in favor of the present appellant, on the ground that same was illegal and null.

In denying relief to the relator in the case we said :

“The case brought is an appealable one, and relator’s complaint is that it has been appealed to this court, but improperly. The orderly and proper course for relator was to await action in this court on the appeal.”

Availing themselves of this suggestion, doubtless, the appellees have filed this motion to dismiss.

Recapitulating, substantially, from that case, all the facts that are necessary for an understanding of the question for decision, we have the following, to-wit:

That the matter of dispute between the co-proprietors of a tract of timbered lands is, whether same is susceptible of partition in kind —plaintiffs’ contention being that a sale is necessary, and the defendants disavowing the necessity of licitation of the property.

That in the judgment of the court sale was necessary and it so decreed — neither plaintiffs or defendants expressing any dissatisfaction therewith, or prosecuting any appeal therefrom.

That, notwithstanding the suit was not disposed of and remained untried for more than one year after it was filed, the appellant did not intervene and set out his demands, so as to have them examined and decided contradictorily with the parties plaintiff and defendant; but, on the contrary, appeared in open court on the day judgment was rendered and tendered a protest in writing, which is of the following purport, viz.:

“ Joseph L. LeBourgeois comes into court for the sole purpose of calling its attention to the fact that the plaintiffs in this suit allege, in their petition, that the land which they seek to partition is ‘ the same land now the subject of a suit pending in this court, removed from the First Listrict Court for the Parish of Orleans, in 1859, and numbered 718 on the docket of this court, in which the Oity of New Orleans and Joseph Soniat Dufossat were plaintiffs and Joseph L. LeBonrgeois and Felix Becnel were defendants.’

“This appearer further calls attention to the fact that he is the Joseph L. LeBourgeois referred to; that the plaintiffs and the defendants in this suit, all of whom claim, in their pleadings herein, to be the successcrs and legal representatives of the plaintiffs in suit No. 713, can not obtain a partition of lands, the title to which is shown by the record here to be in contest between themselves and others in another suit pending in this court, without making these others parties to their partition suit; that the said plaintiffs in this refuse to make themselves parties to the other pending suit, as they should do, and they so refuse in order to compel this appearer to forego the advantages which he enjoys as a defendant in the other suit, which he is anxious to try, but can not try, owing to the determination of the plaintiffs and the defendants in this suit not to make themselves parties to the other as aforesaid.

“ Your appearer refers to the record in the said suit No. 713 and to the record in this suit, to substantiate the averments herein contained, and reserving all of his rights in the premises, he respectfully files this, his written protest, against any further steps being taken herein, until all proper parties shall be made as the law requires, and for general relief.”

The purport of said protest is that the plaintiffs and defendants can not obtain a partition of said lands in this suit, because the title thereto is shown by the record to be in controversy between themselves and others in another pending suit, and they have not been made parties to the present suit.

That the court refused to allow this protest to be filed, and the protestant excepted and retained a bill of exceptions. Subsequent to the rendition of a final judgment decreeing a partition by Imitation, from which neither plaintiffs or defendants appeal, the protestant obtained and prosecutes this appeal.

The following argument in favor of appellant’s right we quote from his counsel’s brief, viz.:

“Moreover, the sale is to be made at public outcry, after the usual advertisement, in the parish where he lives.

“Where will he find a purchaser for the property, if he wants to sell it, after these advertisements?

“Again, if he stands by and allows the sale to proceed, laches will be imputed to him and he may lose his property, with no recourse except a suit for damages against persons who may, or may not, be able to pay them. If he merely protests, but does not enjoin, he will be compelled, after his .title is recognized in the pending suit, to sue the purchaser to annul the sale, or to resist a suit in which the purchaser may set up his pretensions, or, if the purchaser attempts to take possession in the meantime, to sue to protect his possession.

“ In any event, the judgment can only breed mischief and litigation. It was evidently obtained to stir up new litigation, to compel the appellant to bring a petitory action and resort to an injunction; tactics which this court will not countenance.

“This purpose is patent on the face of the record. No sane person interested in the land, interested, therefore, in having it sold to advantage, would dream of exposing it for sale with such an adverse claim outstanding against it; a claim which makes it unsafe for any one to buy, and impossible to expect the offer of a fair price.

“ Minors claim an interest in it. They are the wards of the court, and the sale should not be permitted, if for no other reason than that their interest requires it to be postponed.

*********

“ Although joint owners can not be compelled to remain in indivisión, a partition can only be allowed in the orderly course of judicial proceedings. All parties claiming an interest in the property must be brought before the court. Until they are in court, the partition can not be decreed. 13 S. Rep. 817, 821; 12 S. Rep. 496; 17 La. 384; 4 An. 53, 260; 44 An. 170; 15 An. 251; C. C. 1329; C. P. 1024.”

And, in conclusion, his argument thus proceeds:

“ We believe the prematurity of the action and the want of necessary parties are ample reasons to justify the reversal of the judgment, and we have, therefore, abstained from pointing out other defects, apparent on the face of the record, which invalidate the proceedings.

“ The appellant prays the motion to dismiss may be denied, the judgment reversed and the suit dismissed.”

We think it quite clear that appellant is without right or interest to interfere with the parties in the present litigation, because the judgment does not disturb his title to the property in the least, and a public judicial sale for purpose of effecting a partition inter partes, would not cause him any injury.

But granting, for the argument, all that appellant contends for, it is striking and evident, that it was his plain duty to have intervened and made his claim in season: and failing in this, he must take his recourse in some other and independent proceeding. .

The motion to dismiss is well-grounded.

Appeal dismissed.


author: Bbeaux, J.

text:
    No. 11,472.
    L. F. Montgomery et als. vs. Marydale Land and Lumber Company, Limited, and Alex. Blanche. Board of Commissioners, Fifth Louisiana Levee District, Warrantors.
    Half of the property was assessed in the name of the owner many years after his death, although, by the records of the clerk’s office, it was made public that his succession was opened, the property inventoried and an executor appointed.
    When the fact is known that the owner is dead and his succession is opened, the assessments should be made in the name of his '• estate.”
    The certificate of a tax collector to the assessment roll applies, under the terms oí the statute, only to those who are notified by publication.
    A certificate to establish that notice was given by mail to a non-resident tax-payer will not be held conclusive. It must yield to absolute proof.
    The evidence is conclusive that no sufficient notice was ever mailed to plaintiffs.
    Statutes to divest title must be strictly pursued.
    The requisite notice must be given according to statute.
    Notice being a condition precedent to the validity of the sale, the absolute want of notice is not cured by the prescription of three or five years.
    The deed of sale by the warrantor contained a stipulation of no warranty.
    The buyer, not being aware of the danger of eviction, is entitled to recover the price paid.
    APPEAL from the Seventh District Court, Parish of Tensas. Montgomery, J.

      R. H. Snyder, Jr., for Plaintiffs and Appellees:
    An assessment oí real estate which does not describe on its face or by reference to accessible public documents the property intended to be assessed is null and void. Wilson vs. Marshall, 10 An. 829.
    It is indispensable that the assessment furnish the means of identifying the land assessed. Saunders on Taxation, 104.
    The assessment is invalid unless it gives such a description of the lands that the parts of the government subdivisions belonging to the tax-payer can be ascertained and separated from the parts of the same subdivisions belonging to other persons. Person vs. O’Neal, 32 An. 228.

      The legal assessment of realty owned in indivisión by two or more persons requires that each owner shall be separately assessed Jwith his undivided interest in the whole. Saunders on Taxation, 108; Hays vs. Viator, 38 An. 1165.
    The assessment of realty in the name of a person long since dead, whose will has’ been probated in the parish where the property is situated, and where the tax sale was made, is null and void. Stafford vs. I witchell, 33 An. 520; Carter et al. vs. City, 33 An. 818; Succession of Mercier, 42 An, 1139; Norres vs. Hays, 44 An. 912.
    A tax sale made since the adoption of the Constitution of 1879, where no notice was given to the tax debtors, is absolutely null and void. Article 210 of the Constitution; Breaux vs. Negrotto, 43 An. 428; Norres et al. vs Hays et al.t 44 An. 912.
    When it appears that the description on the assessment roll is too vague and indefinite to operate a conveyance of title or to serve as a basis of title, the assessment is null, G-ibson vs. Hitchcock, 37 An. 214.
    Article 210 of the Constitutions solemnly declares that the property of an individual shall not be forfeited for the non-payment of taxes, unless notice shall have been first given to such individual.
    Article 210 contemplates some effective notice, such as the mailing to and the receipt by the tax debtor of the notice.^
    This court has within the past year defined the legislative term “unknown owner,” and has declared such person to be one whose postoffice address is unknown to the tax collector.

      Clinton & Garrett Attorneys for the Defendants and Appellants:
    As the main defence set up by the defendant company against plaintiffs has been adopted by the warrantors, and as those branches of the case will be fully presented by the warrantors, we, as counsel for the Marydale Company, will confine ourselves to the call in warranty, for the reason that if the warrantors prevail against the plaintiffs’ demands, the result of this litigation would not affect the said Marydale Company.
    Where there is a clause of no warranty in a deed, in case of eviction the vendee can recover the price paid, unless the buyer was, at the time, aware of the danger of eviction and purchased at his peril and risk. C. C., Arts. 2505, 2542, 1965; 5th Bobinson’s Beports, 76; 3 An. 326; 5 An. 314, 667, 684; 6 La. 550; 16 An. 45; 37 An. 374.
    In order to escape liability to the purchaser for the restitution of the price paid, the vendor should, as a rule, affirmatively establish actual knowledge by the former of the danger of eviction, either by direct proof or by implication from collateral facts so strong as to be equivalent to positive evidence. See 37 An. 274; ft. C. C. 2542, 2505, 1965; 3 An. 326; 16 An. 45; 17 An. 50; 5 ft. 76; 5 An. 314, and cases cited in 37 An. 274; see also Meyer vs. Farmer, 36 An. 789.
    In this ease there is no evidence whatever that would go to show that under the plain provisions of our law the warrantors can escape the liability of paying the price and taxes, which the Marydale Company had paid for the property, in case of their title being annulled as derived from the Levee Board. To hold otherwise would have the effect of allowing the Levee Board to “ get something for nothing,” which would be a clear vio ation of our law in matters of sales of property.

      •The buying of “rights and pretensions” is somewhat in the nature of an aleatory transaction, when an inadequate price is paid in the hope of thereby acquiring something which may be of far greater value than the price, and the distinction between, and the true nature of such transactions can more readily be determined by the consideration paid than by any other.
    In the instant case it is not declared in the act of sale that the vendee was aware of the danger of eviction, or that he purchased at his own risk and peril; nor is there any evidence in the record tending to show that the purchase was made under either of such conditions.
    The Code, as construed by this court, goes so far as to extend protection to one who purchases, aware, at the time of the sale, that the thing sold belonged to another, even where there is exclusion of warranty. While it refuses by implication damages in case of eviction, it recognizes the equitable right to recover the price, unless it was excluded by formal stipulation, or the purchaser bought expressly at his peril and risk. 87 An. 274.

      Mam <& Dale, Attorneys for the Board of Commissioners Fifth Levee District, Warrantors, Appellants:
    In 48 An. 877 the court says: ‘ The ground for illegality in the assessment complained of is that it was assessed to James Surget who died in 1856, and that his succession is still opened. The heirs have never been put in possession of the property of the estate. The plaintiff contends that the property ought to have been assessed to the heirs, as they accepted the succession unconditionally. The heirs are non-residents, and .there is no evidence showing that they are in possession of the estate, as joint owners, or that there is any record of this fact, if it existed, in Jackson parish. The property was properly and legally assessed.” 33 An. 816; 28 An. 240; 31 An 591; 88 An. 807.
    An assessment according to the records was sufficient, though erroneous, provided the assessor had no information at his command by which to make a correct assessment. 42 An. 1127.
    A different rule governs as to the validity of the assessment, when the informalities in the assessment are occasioned by the tax-payer than when occasioned by the assessor.
    It is by law expressly made the duty of each tax-payer, whether as owner, agent or in other capacity, to give the assessor .a list of the property, showing to whom it belongs, in what capacity it is held, a correct description of the property and the postoffice address of the tax-payer. If this legislative utterance is not to be regarded as an empty sound, the tax-payer should not to be heard to complain of an erroneous assessment, when such error has been occasioned by hia neglect of duty, and when it is shown that the assessor has exercised due diligence to make a correct assessment. Especially ought this to be so when the tax-payers are non-residents, have no agents in the State, have abandoned the property and neglected their duty as to filing lists, showing owners and giving postoffice address, as in this case; and when the deed records show it to be in the name of persons not the owners.
    The records the law requires the assessor to examine are not the succession records. Act 96 of 1882, Sec. 8.
    The defendant company demands, in the event the tax title Is annulled, that it recover judgment against warrantor for the pnrchase price. In the deed by warrantor to defendant company it is stated: “It is expressly understood that this act shall have the force and effeet of a quit-claim deed. This vendor only warranting as to such title as may be vested in it.” The warrantor, therefore, if you hold the tax title invalid, is under no obligation to refund the price, as the company bought at its peril and risk (C. C. 2505), and waived all right to demand a return. Besides there is no law authorizingthe warrantor to warrant the title, and as it did not have the power it can not be held in, warranty.
   The opinion of the court was delivered by

Bbeaux, J.

This is a petitory action in which the plaintiffs, alleging that they are the owners of “ Oowslongh ” plantation, pray to be decreed the owners and placed in possession.

The property was acquired jointly by L. F. and J. J. Montgomery.

At the latter’s death, in 1868, the title of one-half remained in L. F. Montgomery, and the title of the other half vested one-fourth in the widow and survivor in community of A. J. Montgomery and the other fourth in his children, eight in number.

His will was admitted to probate in Tensas parish, in 1868.

An inventory was made.

L. F. Montgomery and the widow of the testator qualified, under the will, as executors.

The property was assessed for the taxes of 1881, 1882, 1888 and 1884 in the name of L. F. and A. J. Montgomery.

It was adjudicated to the State of Louisiana in 1885, for the taxes of those years, and subsequently it was transferred by the State to the Fifth Louisiana Levee District warrantors.

The Marydale Land and Improvement Company, holding under the Louisiana Levee District answers that the property was legally assessed for many years prior to the adjudication to the State, during which plaintiffs failed to pay their taxes and to exercise any rights, of ownership.

It pleads prescription and called the Levee Board, in warranty, to defend the title, and asked, in case of its eviction, that it (the defendant company) recover judgment against its vendor for the price and taxes paid.

The co-defendant Blanche also, pleads prescription — that of two, three and five years, and prays for judgment against his vendor, the Marydale Company, for the price and taxes he paid, on the portion of land bought by him.

The defence of the warrantor is substantially the same as that of the defendant.

The “Levee Board” warrantors, in their answer, as against the defendant, the Marydale Company, deny that it is bound in warranty, and contend that it is not obliged to return the price in case of eviction.

The deed of sale by the Levee Board contains a clause of no warranty in case of eviction, and it is relied upon by it as being an effective bar to the demand of the Marydale Company, vendee, for the return of the price.

The record does not disclose with certainty that any notice was given to L. F. Montgomery to pay his taxes prior to the sale, either by postal card or publication.

The evidence of the notice is also uncertain as to the half of which A. J. Montgomery was the owner.

Judgment was rendered recognizing plaintiff’s ownership of the property, and there was judgment for defendants against warrantors for the purchase price paid and a judgment against the plaintiffs for the amount of taxes paid by defendants on the property.

The terms of the judgment reserved in addition certain rights to the defendants.

From this judgment the defendants'and warrantors appeal.

The following propositions, assailing the tax title, present the important issues of the case:

1. The assessment of property in the name of a person long since dead, whose succession has been opened, inventory made and executors appointed, in the parish where the property is situated and where the tax sale was made, is null and void.

2. A tax sale made since the adoption of the Constitution of 1879, without notice to the tax debtors, is null and void.

The Assessment.

Although it must have been known that A. J. Montgomery was dead, the assessment of his property was made in his name.

His will was probated in 1868, executors were appointed to execute the will, an inventory had been taken. The proceedings were recorded in the succession record of the parish.

They were ample notice to the assessing officer that the co-propfietor of a large tract of land was no longer alive.

The property was sold under Act 96 of 1882, and the amending revenue act of 1884.

Under neither can sanction be found for assessing property in the name of the deceased after the assessor has become aware of the death of the owner.

The succession, so far as the record discloses, had not been accepted by the heirs; therefore the assessor could not be expected to assess the property in their names.

But the words “ estate of” were essential under the circumstances to identify the property as required and to complete the assessment.

It has never been held, as contended in the case at bar, under the acts above cited in any case that the words “estate of” are of no importance in assessing property of a succession prior to acceptance by the heirs.

In Sewell vs. Watson, 31 An. 591, Justice White, for the court, said: “The property stood upon the public records as that of James H. Coleman, and was so assessed. It was vacant property, and the owner did not reside in the parish. The assessor, in listing the property for taxation, could have assessed it in no other way than as it stood on the records of the country, unless it be considered that it was his duty to be informed of facts not public, not to be ascertained from the condition of the property, or from its occupants, for it had none.”

The inference is plain, if it was publicly known that the owner was dead the assessment should not have been made in his name under the revenue act of 1882.

By special enactment (not contained in the act of 1882) it is different under the act of 1890, which can not apply to this case. See revenue act of that year, Sec. 25.

The question received consideration in a well-considered case, in which an assessment made in the name of an owner who had been dead for ten years was decreed illegal.

The court states that the name of the owner had been formally notified to the proper officers, and was ascertainable from the archives of their own offices. Stafford, Executor, vs. Twitchell, 33 An. 524.

It is argued by warrantors’ counsel that the case of Kent vs. Brown and Learned, 38 An. 807, is a comparatively recent utterance of the court upon the subject, and that it is conclusive upon the point under discussion.

The facts in that case are different from the facts in the case at bar, as made manifest from the following quotation taken from the cited case:

“We must take judicial cognizance of the state of war in which the country was then engaged; of the closing of the courts during several years; of the difficulty, and at times of the impossibility, of communicating between the parishes of Concordia and Carroll, and from the records it appears that no positive information could be had from the records of Concordia of the whereabouts, or as to the fact as to whether he was dead or alive. From the only sources of knowledge within the reach of the assessor, he had no alternative but to list the property in the name of that owner to whom it had been assessed, aud who had paid the taxes thereon for years past. These circumstances, which are entitled to greac weight, entirely remove this question from the rule or scope of the two decisions mainly relied on by plaintiff’s counsel.”

The two cases referred to are: The Stafford case, 38 An. 520, and the Hickman case, 35 An. 1086.

Neither of these cases was overruled by the Kent case, 38 An. 807.

The facts were different, and the court so states. The correct rule is indicated in Cosgrove vs. City of New Orleans, 33 An. 816.

The assessment was regular, for the property had been assessed in the name of an estate; there being no proof of record that the heirs had been placed in possession.

In the case at bar the records, which should not have been ignored by the assessor, years after the assessor’s death, showed that the property was that of the estate of A. J. Montgomery.

It should have been assessed in those words, in so far as the property was owned by the succession. See also the Surget case, 43 An. 877.

We at this time pass the plea of prescription and take up the question of notice to the tax-payer.

Although this plea is urged as applying to both the informality in the assessment and the want of notice, we will hereafter decide it only in so far as it applies to notice, for it disposes of the case.

Notice to the Tax-payer to Pay Taxes Assessed.

The Constitution, Art. 210, ordains that, “after giving notice to the delinquent in the. manner to be provided by law.”

That article, as touching the points involved, has been interpreted by this court in several decisions.

The leading case is that of Breaux vs. Negrotto, 43 An. 438, from which we quote: “The Constitution and Acts Nos. 77 of 1880 and 96 of 1892 require notice to be given to the tax delinquents. No notice was given. It was an essential prerequisite to the sale of the property,” and approvingly Stafford’s Executor vs. Twitchell and In re Douglas, 41 An. 765 are cited.

This conclusion was affirmed in Norres vs. Hays, 44 An. 912.

The tax collector did not, it seems, mail notice to L. P. Montgomery ,.at the postoffice of his residence. The names were properly given L. P. and A. J. Montgomery, and would have bound the surviving partner had it been mailed to the postoffice of his residence. The assessment itself against L. P. Montgomery is legal and binding and the taxes are due.

The sheriff appended a certificate to the tax roll for the years for which the taxes were due, certifying that notice had been given as required.

Had he testified that the certificate was correct, his oath, together with the presumption that sustains the regularity of an officer’s act, would have proved the notification, against which the mere denial of the tax-payer, as a witness, would not suffice to set it aside.

But the tax collector testified that he had sent the notice to another postoffice than that of the tax-payer’s residence.

The notice to the other owners was equally as defective. It was addressed to A. J. Montgomery, and not “ his estate,” and mailed to that address, to be delivered at Oanton, Miss.

The heirs not having accepted the succession, and being, as to the property, unknown, an advertisement in the name of the estate of A. J. Montgomery would have bound them. The notice to them was not in the required form, and the attempt to notify them failed.

Without further legislation, we are not authorized to hold otherwise'than we have.

Plea op Prescription.

It is argued by counsel for warrantors that the plaintiffs had, long before the tax sales, abandoned the ownership and possession of the property.

That they had acquired a tax title, duly recorded, that placed plaintiffs upon inquiry.

That the purchase alone gave them (the warrantors) possession.

Our examination of the records does not satisfy us that the warrantors took actual possession.

The facts regarding the alleged abandonment of plaintiffs consist in their neglect to pay their taxes, and of their not being in corporeal possession.

These facts did not have the effect of impairing their rights as owners.

The notice is a condition precedent, the want of which is not cured by the prescription pleaded.

The notice was insufficient and entirely irregular, and as such, even the purchaser in good faith is without right to avail himself of a term of prescription less than ten years.

The following is one of the last utterances of this court upon this subject:

“ Hence our opinion in Barrow vs. Wilson was error, to the extent of holding that, in respect to this notice, the prescription of three and five years was tenable.” 48 An. 441.

Return op Price by Warrantors.

The defendants demand, in the event that the tax title is annulled, that they recover judgment against warrantors for the purchase price.

In the deed by warrantor to the Mary dale Land and Lumber Company, Limited, it is stated:

“ It is expressly understood that this act shall have the force and effect of a quit-claim deed. This vendor only warranting as to such title as may be vested in it.”

The warrantors’ contention is that they are under no obligation to refund the price, and they claim that the defendant company bough^ at its risk and peril, and waived, thereby, all right to demand a return.

The vendor who has received the price must return it, because it is in his hands without cause.

The purchaser has paid it in execution of a sale that is null.'

The record does not disclose that the vendee was aware at the time of the sale of the danger of eviction.

The stipulation of no warranty is effective in relieving the vendor from the payment of damages, but does not release him from the obligation of restituting the price.

Warranty of title is the rule, and always governs unless waived.

The express waiver may include the waiver of the restitution of the price, in case of eviction, and the sale ma.de at the entire risk of the purchaser.

A waiver, however, silent as to the restitution of the price, does not exclude the obligation of returning the price in event of eviction, unless the purchaser had knowledge of the causes of eviction.

In other words, a no warranty of title clause in a deed, without knowledge on the part of the vendees of the causes of eviction, and without an express waiver of the return of the price, leaves the vendee, after eviction, a creditor for the price paid.

An Essential.

. The obligation of the tax-payer to contribute to the expenses and necessities of the government, when enforcement beco'mes necessary, is subordinated to certain requirements that must be observed in order to divest him of his property.

In case of formality, not of the essence, he has no remedy to recover after his property, under a tax title, has passed into the hands of an innocent purchaser.

'The decisions heretofore have treated notice as an essential.

We adhere to the principles heretofore enunciated.

We therefore must affirm the judgment.

It is ordered, adjudged and decreed that the judgment is affirmed .•at appellants’ costs.


text:
    No. 11,479.
    Mrs. Anna Chapoton vs. Her Creditors.
    ‘The opponent to the homologation of the tableau of distribution of the syndic moves to dismiss the appeal of the syndic from the judgment amending and homologating his tableau.
    'The decision appealed from reduces the amount of three of the claims, as carried on the tableau of distribution.
    ‘The decision of the District Court upon each of the claims, carried on the tableau, is a separate judgment in favor of each creditor.
    'This judgment must remain undisturbed, if the creditors accept it as correct and do not choose to appeal from the judgment reducing the amount. The syndicis without authority to appeal, for he is without interest, and is not aggrieved*
    The appellees whose claims were reduced being quiescent, the syndic is without authority to prosecute an appeal in their behalf.

      \ PPEAL from the Fourteenth District Court, Parish of Iberville, i l Talbot, J.

      Alex. Hebert Attorney for Syndic, Appellant:
    Interest must be computed from the date of the claim to the time of filing the final account of the syndic, and not simply from the date of the claim to the day of the sale of the effects of the insolvent. 9 La. 2G8; 3 An. 337; 30 An. 716.

      Ernest T. Elorance Attorney for John G-. Spor, Opponent and: Appellee:
    Interest ceases to run against an insolvent estate upon a special privilege, from the date of sale of property subject to the privilege. 12 Robinson, 404, Collier vs. Creditors.
    A syndic, who is himself a creditor with first-special privilege, can not, by failing to provisionally distribute the estate so as to extinguish his privilege* compel the estate to pay interest on his claim up to the final distribution-
    On Motion to Dismiss the Appeal.
   The opinion of the court was delivered by

Breaux, J.

The syndic of the creditors of Mrs. Anna Chapoton having, in that capacity, filed his tableau of distribution and prayed for a judgment of homologation, it was opposed by J. G. Spor, a mortgage creditor of the insolvent, on the grounds that the interest allowed A. Wilbert’s Sons Lumber and Shingle Company is illegal; that the sum allowed to the notary and experts was excessive, and that C. Joubert & Co. should be charged with the expense incurred in selling the goods on which they had a privilege.

Upon the trial of the opposition the court a qua amended the tableau by rejecting items for interest allowed to the A. Wilbert’s Sons Lumber and Shingle Company and by reducing the fee of the notary and by charging C. Joubert & Co. with certain costs amounting to $20.

From the judgment thus amending the tableau of distribution only the syndic of the creditors in his official capacity, prosecutes the appeal. The creditors affected by the amendment have not interposed any objection whatever on appeal.

The opponent Spor, an appellee, moves the eourb to dismiss the appeal, for the reason that the syndic has no interest in the judgment appealed from; that he is not aggrieved, and that he is without any right to appeal.

It is elementary that an appellant must have an interest in the controversy or substantial rights involved therein in order that he may sustain an appeal.

A syndic is authorized to appeal to have a judgment reviewed which affects his rights as a syndic of the creditors he represents.

The syndic in the case at bar has no appealable interest. He is not concerned as syndic in the claims of creditors.

Each creditor whose claim has been approved by the judgment of homologation is a separate judgment creditor.

The creditors inter se are the parties litigant. Their respective claims are settled contradictorily on the tableau. The judgment is binding upon all the parties who do not appeal.

The syndic, being without interest, is without authority to interfere, that a judgment may be increased in behalf of a creditor who does not complain.

The judgment in effect increased the residuum applied to the mortgage indebtedness. To this no opposition is interposed by the creditors whose claims were reduced.

The syndic en concurso proceedings can not be concerned for or against the judgment in so far as it reduces or disallows the claims •of a creditor. The creditors have all rights needful to the protection of their interest. They can not be subjected to litigation on appeal, because he the syndic, assumes that one creditor should receive a larger amount than that allowed, though he, the creditor, does not .appeal and files no complaint against the correctness of the judgment.

The creditors are aggrieved and not the estate or the syndic.

It is not possible that the common fund will be increased by any action of the syndic on appeal.

The subject was discussed in the case of Payne vs. Dejean, 32 An. 890, in which an administrator sought to sustain an appeal from a judgment amending an account of administration.

The official capacity of the defendant did not enable her to obtain ■a review of the judgment.

She represented on appeal that a claim due her personally was illegally disallowed.

The court held that as to that claim she was not in her official capacity a representative of the creditors and that if she was aggrieved by the judgment her remedy was by appeal in her personal right.

Her appeal as administratrix was dismissed. The court in support of the ruling cited decisions in appeals from judgment homologating tableaux of distribution in insolvency proceedings as in point.

The appeal by the administrator and syndic is treated as similar in each case.

In one of the cited cases, that of Beer & Co. vs. Their Creditors, 12 An. 774, in which the case of Girod vs. Creditors, 2 An. 548, is followed, the principle is enunciated that “ in the general administration of the effects of the insolvent, the syndic represents the creditors;” but en concurso, the creditois act for themselves, each claim is a separate judgment belonging to the creditor.

The syndics are chosen to attend to the interests of the creditors of the insolvent and represent the mass of the creditors and may take such legal steps as are needful to protect the assets and legally add to the amount to be distributed.

It is nowhere stated that they are authorized to take appeals and control them in the interest of creditors who do not complain.

The syndic being before us in his official capacity and not in his individual right, the appeal is dismissed.

It is not possible, in this appeal, in which he appears only as syndic, to condemn him to pay the costs individually.

The claim for costs of appeal can not now be determined as between the syndic personally and the opponent appellee.

The question can be decided contradictorily between them. They are not both before this court in this appeal.

It is ordered, adjudged and decreed that the appeal in this case be dismissed.