text:
    No. 1230.
    The State of Louisiana vs. P. C. Peters.
    Criminal statutes cannot be extended to cases not included within the clear import of their language.
    Act 64 of 1884 does not denounce as an offense the accusing another of a crime with malicious intent, but only malicious threats to make sucli accusation. A verdict of guilty of charging another with malicioas intent, convicts of no crime known to the law of Louisiana, and, on motion in arrest, the same must be set aside.
    A PPEAL from the Twelfth District Court, Parish of Rapides. r\ JBlacJman, J.

      J. O. Wieldiffe, John H. Ogden, District Attorneys, and Hdwin Q. Hunter for the State, Appellee.

      Bobt. P. Hunter and Oullom & Ooeo for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The indictment in this case charged that the defendant “did willfully, maliciously and feloniously, upon the public road known as the Bayou Boeuf road, and at other public places, threaten to accuse and did accuse one Eli G. Matthews of the crime of larceny, with the intent to extort from said Matthews money or other thing of value.”

Tiio verdict of the jury was as follows: “We, the jury, find the prisoner guilty of charging Eli J. Matthews of larceny, as charged in indictment, with malicious intent.”

The indictment was evidently framed under Act. No. 63 of 1881, entitled “An Act to provide for the punishment of the offense and crime of attempting to extort money or any property or valuable thing, through or by means of threats, threatening letters or communications, or by means of other unlawful acts or devices.” The verdict, however, is based on Act No. 64 of 1884, eutitled “An Act to provide for the punishment of malicious threatening or threats, the malicious sending of threatening letters or communications, or malicious publications, or resorting to malicious acts, or threats of injury to person, reputation or property, though no valuable thing be demanded or sought to be extorted.”

The action of the jury is based upon the charge of the judge, who, after instructing that the intention to extort was an essential element of the crime denounced by Act No. 63, proceeded to say: “ I charge you that, if you find from the evidence that the accused did not threaten to accuse the said Matthews of the crime of the larceny of his pocket-book, but did actually charge him, the said Matthews, of the crime, and that it was done in the public places, as alleged, and that it was done with a malicious intent, but not with the intent of extorting money, then you can find him guilty of maliciously accusing the said Matthews of a crime or the crime of larceny. This, I charge you, is a smaller offense provided for by Act 64 of 1884, and is included in the indictment under which the defendant is now being tried.” The judge further gave the jury two forms of verdict of guilty, one under Act 63, the other under Act 64, the last of which is the one actually and literally adopted by the jury.

' We will not at this time determine the question as to the correctness of the instruction of the judge that the crimes denounced by the two acts, 63 and 64, are different grades of the same offense, differing only in the intent, in such sense that an indictment for the greater includes and supports a conviction for the lesser offense. Nor do we find it necessary to determine various other assignments of error.

The objection raised on motion in arrest of judgment, that the verdict finds the accused guilty of no crime denounced by any law of the State, is well founded and fatal to the conviction herein.

Unless accusing a person of larceny with malicious intent be constituted a crime by Act 64 of 1884, we know of no other law giving it such character. We have studied Act 64 diligently without being able to extort any such meaning from its provisions. Its confection is clumsy and obscure, but under no possible construction can it bo made to cover the act stated in the verdict. The statute says: “ If any nerson shall, knowingly and maliciously, send or deliver, or cause to be sent or delivered, or cause to be received by another, any letter, postal card, writing or printed matter threatening to accuse him or her, or to cause or procure him or her to cause or procure him or her to be accused of any fault, crime, offense or misdemeanor,” ecc., he shall be punished as prescribed. The above is the only clause of the act referring, in any manner, to accusing another of a crime. It is obvious that the offense denounced covers only malicious threats to accuse’another of crime, embodied in written or printed form, and sent or delivered to the person. The verdict does not find the defendant guilty of any such threats, or indeed of any threats whatever and the mere act of “charging another of larceny with malicious intent,” as'found^by'the verdict, is no crime under the law of Louisiana. We cannot extend criminal statutes to cases not included within the clear and'*obvious import of their language.

It is therefore ordered, adjudged and decreed],that the verdict and sentence be and the same are hereby annulled, avoided and reversed _


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 1241.
    John Hanson vs. John M. Allen.
    A tenant cannot be permitted, to dispute the title of.his lessor as long as he continues in possession,
    APPEAL from the Nineteenth District Court. Parish of St. Mary. Goode, J,
    P. H. Mente and Foster & Buthon for Plaintiff and Appellee.

      J). Gaffery and B. F.]Winehester for Defendant and‘Appellant:
    1. When (an alleged) cenant denies the title of his j landlord, the relation between them is severed. 26 A, p. 502, and Bigelow.
    2. When the premises said to be leased\turns out to be a public place and the lessee obtains the grant of use of same from the sovereign (i. e., Police Jury) and institutes suit against his lessor for restitution of rent paid in error, this is notice to lessor,'‘and adverse title in lessee.

      3. “ The -wliole space between tlie marg n of the river and tbe front lots was dedicated to public use, became locus publicus, and ipso facto was hors de commerce." Judge Martin in He Armas vs. Mayor, 5 L. 145,
    4. A public place hors de commerce cannot be claimed by an individual in a civil action (Mayor vs. Hopkins, 13 L. 331), and cannot be appropriated to private uses. Mayor vs. Metzinger, 3 M. 303.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit for rent. The defendant denies all liability, avers title in himself, pleads prescription for all rent anterior to 1880, and sets up a reconvention al demand.

The lower court dismissed the last plea as disconnected with the main suit, the parties residing in the same parish; sustained the exception of prescription as urged, and gave judgment for rent at $15 from March 31, 1880, to the date of the judgment, June 5, 1884, with interest and lien and privilege.

The evidence, although often conflicting and sometimes difficult to realize, establishes satisfactorily that the property was originally leased by the plaintiff to Johnson & Co. for one year, with the privilege of five years, at $25 per month; that Allen, the defendant, although not very ostensibly, was one of the partners composing' the firm; that owing to financial embarrassments the firm broke up, two parties moving to other quarters, Allen remaining in possession and paying rent, but at $15 only, to plaintiff.

It appears that, under the impression that he had paid rent which he did not owe plaintiff, Allen brought suit to recover back, but that, after the original lease to Johnson & Co. had been set up by Hanson, as defendant, the suit was discontinued.

The district judge refused to allow Allen to dispute his lessor’s title as long as he continued in possession, and did so, sustained by good authority. 6 R. 1141; 10 L. 362; 2 R. 461 ; 11 Ann. 632; 12 R. 214; 1 Ann. 320; R. C. C. 3433, 3441, 3445-6, 3556, 3514.

He has correctly decided the issues between tho parties, and his finding must remain undisturbed.

Judgment affirmed.


author: Manning, J.

text:
    No. 1251.
    The State of Louisiana vs. Theogene Viator et als.
    The revenue laws require of tax collectors the performance of certain acts as conditions precedent to the allowance of deduction-lists as credit* in their favour. They must have verified these lists with an oath that they had exhausted all legal means for the colloc' t-ion of the sums upon them, and must have deposited them in the Recorder’s office on or by the first of November of each year.
    Unless they comply with those requirements they are not legally ontitled to bo credited with the amount1 of these deduction-lists.
    APPEAL from the Twenty-first District Court, Parish of Iberia. Gates, J.

      O. H. Mouton, District Attorney, for Plaintiff and Appellee.

      Breaux <& Renoudet, B. Simon and L. 0. Haelcer for Defendants and Appellants.
   The opinion of the Court was delivered by

Manning, J.

This suit is upon Viator’s bond as tax-collector of Iberia. Judgment is claimed for $9,728.23 with five per centum interest a month, and was rendered for $5,642.28 with five per centum a month interest upon $4,279.93 from January 24, 1884, and like interest upon $402.35 fromjMay 16, 1884, and upon $960 from February 5,1885.

Viator was elected sheriff iu 1879 and entered upon his duties as tax-collector'in thejspriug of 1880. The defalcation charged is for tlie years 1880-3, botli inclusive.

The defendant was permitted to offer in evidence without objection from the"_State the delinquent-list or deductiou-list of 1883 and was allowed a credit of $1,040.95 therefor. He was further allowed a credit of $3,045 for unissued licenses or licenses returned. These two credits reduce the'sum claimed to that for which judgment was rendered.

The defence is that the deduction-lists for each of tlie four years, which contain the sums that Viator could not collect, equal the balances charged on the Auditor’s books against him and wipe out the apparent defalcation, and that'he ought to be allowed these credits. These lists are alleged to contain sums assessed against persons not living in that parish on personal property such as railroad-bonds, and against insolvents—double assessments etc., none of which were collectible.

They were offered in evidence and rejected, except the list for 1883, and bills having been reserved present the sole question for our determination. The State withdrew her objection to the list for 1883 because it bad been delivered to Viator’s snreessor who is collecting the sums thereon entered as not collectible. The other lists were not admitted in evidence because the collector had not done what the law imposes upon him as a duty in order to entitle him to be credited with these lists.

The revenue Acts require of tax-collectors, as conditions precedent and essential to the allowance of deduction-lists as credits, that they shall have sworn to and deposited them iu the Recorder’s office on November 1st of each year, and that they shall immediately proceed to sell the property assessed. The' oath must state specifically that the collector had exhausted all means given him by law for the collection of these lists or the taxes upon them.

The oath upon these several lists was not taken until April 7, 1884, and is merely that the taxes thereon have not been collected. The lists were not deposited in the Recorder’s office nor was auy act done by the collector touching these lists until April 1884 after the expiration of the last year for the taxes of which this suit is brought. Obviously if any portion of these lists was collectible and cannot now be collected, the fault- is with the officer.

The revenue-laws hold the tax-collector to a very rigid accountability and on the other hand give him exceptional facilities for collecting. They are sui generis and are not to be assimilated to those on any other subject. He is charged with the amount of the assessment-roll, and the transcript from the Auditor’s books of the State’s account with him is prima facie proof of its correctness. He is presumed to have collected or to have been able to collect the whole roll, and if there are auy sums on it he has not been able to collect after due efforts, he has only to make out a list of them, swear to it in the terms prescribed and deposit it with the Recorder by a given time, and he will receive credit for the amount of it. As he is ipso facto a defaulter if he does not settle with the State on or before the day he is required to settle, so he is deprived of the credits of deduction-lists if lie has not prepared, authenticated, and deposited them at the time he is directed to do these acts. Pol. Jury Vermilion v. Brookshier, 31 Ann. 736.

And the law compelling him so to do is not onerous nor unjust. He knows or ought to know before November of each year what items on his tax-roll are not collectible. He ought before that date to have proceeded to collect them and have exhausted all legal means to that end. The preparation of the list is mere clerical work and t' e office in which he has to deposit it is under the same roof with his own. If he neglects or omits to comply with these simple provisions of lav for his protection, whom can he blame but himself?

If he be equitably entitled to relief in this or similar case, the legislature alone can grant it.

Judgment affirmed.


text:
    No. 1256.
    Joseph R. Bres vs. M. Louviere et als.
    The general laws of the United States consecrating lot 16 of townships to school purposes apply only to such lots as liavo been surveyed as square or rectangular, They do not apply to radiating, anomalous or irregular sections.
    By issuing an indemnity school warrant the State parts witli what title in the public domain it could by location have secured her. The divestiture is complete where the location is approved, and on return and surrender the Governor issues a patent.
    A possession of more than half a century does not of itself divest title from the general government, which can be accomplished, in a proper case, only after l’ull compliance with the requirements of the law.
    The unauthorized entry on the tract book that a lot is “ reserved for schools ” does not operate such reservation.
    The fact that one is an employee in the land office does not disqualify him from acquiring scrips and warrants and acquiring valid title to land under them.
    A PPE AL from tlie Twenty-first District Court, Parish of Iberia. i\ Gates, J. -

      Bobert S. Perry for Plaintiff and Appellant.
    Radiating or anomalous lots or sections 16 are not reserved for schools by acts of Congress. Ruling Secretary of the Interior, 23d July, 1860, 17 L. 510, 33 Ann. 424, Letter of United States Commissioner, July 1st, 1882.
    The method of selecting under the indemnity act of Congress of 20th May, 1829, and adopted by the State, by act of December, 1848, No. 319 of 1855, and R. S, 2952, and titles so acquired by individuals aro valid. 11 Ann. 552, Public Domain, page 227, 28 Ann. 720, 18 H. 181.
    The issuance of scrip, under the laws of tho State, is alternative and discretionary with the State register. This action is final. 4th Ed. Cooley, Const. Lim., p, 138, N.; Cooley on Taxation, pages 157, 514 to 528, 532, 25 Ann. 119. See 14 Ann. 77, 2 Ann. 216, 299, 19 L. 334.
    The assent of general government to issuance of scrip has been obtained. But the State has plenary and exclusive power over the 'subject matter, and that assent was not required. The State may dispose of reserved and selected school lands, as it sees proper. The Governor’s patent is final. 18 H. 181.
    Under Act 1826, the secretary alone makes final selection. In case reported in 13 Wall, 123, the register was authorized to select. Long possession cannot avail against the government. In this case entry “ reserved for the schools ” on the tract book was unauthorized. It was not made by the Secretary. The lands were not reserved under the law, nor before approval of plaintiff’s location, had they been selected.

    There is no proof title had been previously parted with, 13 Wall. 123 ; Commissioner’s letter July 1, 1882,

      Selected lands being held by same tenure and terms ” as reserved lands, they may be dis- , posed of as the State sees fit. ‘ 18 H. 181.
    As'school board has no 'title and the State does not complain, the State’s patent is final, and the sohool board has no interest to contest the validity of the patent. 18 H. 181.
    Plaintiff is entitled to recover value of rent since date of the patent-
    Pleadings cannot be amended after the suit has begun.

      W. S. Parlcerson on same side :
    1. Radiating 16 sections are not reserved for school purposes under the general law. 19 La. 510; 33 A. 434.

      2. Radiating 16 sections, being a part of the public domain, could be selected as indemnity under the Act of 1826, and until so selected remain a part of the public domain, subjecto purchase.
    3. ‘When there is no regular 16 section in a township, the Register of the Land Office is authorized, in case he deemed it more advantageous to the State, to issue scrip in lieu of the indemnity land, which could be placed upon any part of the public.domain, in that district. R. S. 2951, 2952.
    4. The Register having issued the scrip, it haviug been entered on this radiating 16 section, a part of the public domain, the selection haviug been approved to the State by the United States authority, and the Governor, as executive officer of the State, having received the money for the scrip, holding it in trust for the local school board, and having issued a patent for the land, it is presumed that all the formality of the law had been complied with, and it is not competent for the school board to question such a title. 4 Ala. 622; 18 Howard 181.
    5. By the sale of the indemnity scrip, the State passed all of its right, title and interest in and to any part of the public domain to which it (the State) might be entitled upon which such scrip might be placed, and when the selection was made and the land approved to the State it became the duty of the Governor, acting in good faith with the purchaser of the scrip, to issue him a patent therefor.

      Jos. A. Breaux and P. B. lienoudet for Defendants and Appellees:
    1 The evidence of the selection of land made by an agent of the State is reduced to writing.
    If a-selection has been made, copy of the evidence is the best evidence.
    The exparte statements of the Commissioner General of the Land Office are not admissible to prove such a selection, nor those of the Register of the State Land Office.
    Title to real property can neither be destroyed nor created by parol.
    . S crips cannot legally be issued to enable speculators in land to become owners of fractional sections of very valuable lands, in such quantity of acres as will best serve their particular interests.
    3. The State Land Register can issue scrips with the assent of the Federal Government. This assent in the instant case has not been obtained.
    4. This officer, under the law, must ascertain in what township in the State there are no reservations of school sections, and in such case it is made his duty, under the superintendence of the G overnor, to apply for as soon as possible and obtain alocation of any land or part of land in lieu thereof.
    5. "When such locations cannot be made, scrips can be issued. This location could be made in the townships. This is evident.
    The tract of land in controversy contains 154 45-100 acres, leaving a deficiency of 485 55 100 acres unprovided for. The alleged scrip was issued for 154 45-100 acres, precisely the number of acres in the tract.
    The whole is an attempt to enable plaintiff to become the owner of the land which has been surveyed for the schools, and is property especially designated in their interests.
    'Patents fraudulently obtained or illegally issued are void. McGill vs. McGill, 4 A. 26 Stoddard vs. Chambers, 2 Howard 318.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a petitory action against, the school hoard of the parish of Iberia,

The plaintiff claims to have legally acquired indemnity school warrant No. 3939, and on July 7, 1882, to have located it on lot 16, T. 13 S.,. R. 7 E., S. W. La. Dist., containing 154 45-100 acres of laud, in Iberia parish ; that this location was approved by the Secretary of the Interior on February 24, 1884, and that, in consequence, he obtained from the Governor of the State a patent, No. 156, A. S. L., on file 21st of April, 1884; the warrant having issued under the provisions of Act of Congress of May 26, 1826.

’ The defense is substantially that the issuance of the warrant, the location, the approval thereof and the granting of the patent are null, as in violation of law, for the reason that, at the date of the warrant and long before, the lot claimed had ceased to form part of the public domain and belonged in trust to the State, for the use of the public schools.

This defense must fall before the fact that the lot in question (16) is a radiating, or anomalous, or irregular lot, not in place, and that the general laws consecrating lot or section 16 of townships to school purposes, apply only to such lots as have been surveyed in square or rectangular lots or sections. Decision of Secretary of the Interior, July 23, 1860; of July 1, 1882; Bartons vs. Hempkin, 19 L. 510; 33 Ann. 424. See also 4 Ala., Long vs. Brown, pp. 622, 627-8 ; 18 How. 173, 177-8, 181-2; Cooper vs. Roberts; Public Domain 1883, p. 227, indemnity selections; R. S. La. 2938; Sec. 14, Act 75 of 1880.

The defendants have failed to show that, prior to the location of the warrant by the plaintiff on this radiating section, it had ceased to compose the public domain and had passed to the State for school purposes.

It is clear that, when the State sold the indemnity warrant, she parted with what right, title and interest she had or could have had in and to any part of the public domain to which she would have been entitled by the location of the warrant; aud that, when the location was effected, approved, returned and acted upon by the delivery of the patent by the Governor, the divestiture was complete.

It may be that, had the Register of the State Land Office done what is considered was his duty, this lot might have been secured to the State ; but he has not done so. His omission cannot affect the rights of the plaintiff, who has unquestionably acquired a good and valid title to the lot.

It cannot avail to say that the words “reserved for the schools” had been written on the tract books and was protection, for the Commissioner’s letter of July 1, 1882, establishes that this was done without any authority.

The long possession of upwards of half a century of the school board could not accomplish that which a strict compliance with the requirements of the law alone could have realized. 15 Wall. 123.

The fact that the plaintiff was an employee in the Land Office has not been shown to have been a disqualification to act as he has done in this matter.

The district judge, in his reasons, appears to have acted on the assumption that lot 16 had passed to the State. Had such been the fact, the case would have presented quite a different feature.

The plaintiff must recover.

It is therefore ordered and decreed that the judgment appealed from be reversed, and that there now be judgment in favor of plaintiff, declaring him owner of'the radiating lot 16 in controversy, hereinbefore mentioned and more fully described in his petition, in the warrant and patent, and that the appellees pay costs in both courts.


text:
    No. 1251.
    P. J. Gibert vs. J. A. Tassin.
    An extension of time to file a transcript, although seasonably asked, will not be granted where it appears that the appellant instructed the clerk months previous to the return day not to make the transcript, and that it is owing to this injunction that the record was not prepared.
    A PPEAL from the Twelfth District Court, Parish of Avoyelles. r\ Overton, J.

      h. J. Dueoté for Appellant.

      JE. North OuMom for Appellee.
   On Motion to Extend Time.

The opinion of the Court was delivered by

Bermudez, C. J.

On the averment that, through no fault of his, he was unable to obtain from the clerk of the lower court the transcript of appeal to file the same here on the return day, and, being within the delay within which to apply for further time, the plaintiff and appellant prays that the return day be extended till next term. The motion is accompanied by a certificate of the clerk to the effect that the transcript cannot possibly be made in less than ten days.

Counsel for appellees oppose the motion, charging that the showing is insufficient, and that, if the appellant did not obtain the transciipt seasonably, it is because he had instructed the clerk not to make the transcript. A certificate from that official attesting that fact is attached to the answer.

The Code of Practice, art. 883, provides:

“If the appellant has not filed in the supreme court on the day ap pointed by the inferior judge the record from the court below, and was prevented from doing so by any event not under his control, he may, in person or by attorney, apply to the court before the expiration of three days, after which the appellee may obtain a certificate declaring that the record has not been filed, and may demand a further time to-bring it up, which may he granted by the court if the event cansing the delay he proved to its satisfaction,” etc.

Rule III, § 3, of this court requires that motions for snob extensions of time should state specifically the causes which prevented the completion of the transcript in time, and that the statement he verified by oatli.

In the present instance the mover lias not even alleged any event or cause to justify the non-registry of the transcript. The certificate annexed to his motion merely shows that the transcript cannot he completed before ten days, and is dated July 6, 1885, while that which accompanies the appellee’s answer is to the effect that the plaintiff and appellant instructed the clerk iu January last not to make the transcript, and is dated three days previous.

The showing made by the appellant not only does not entitle him to the extension asked, hut that made by the appellee clearly establishes that there was ample time to make the transcript, and that if it was not'made the fault is attributable to him. Under such circumstances granting the relief sought would he to permit him to take advantage of his own wrong to the prejudice of the appellee.

The motion to extend time is refused.


author: Poché, J.

text:
    No. 117.

    J. P. Harris, Administrator, vs. James A. Pickett et al.—S. W. Vance et al. vs. James A. Pickett et al.
    An adminiotrator cannot sue m iiis own rights the succession "which he represents, and, vice versa, as administrator he cannot sue himself.
    Hence on heir to a succession, who has filed an opposition to an aocounf presented by the administrator thereof, and who, "before trial of his opposition, becomes administrator of the succession of the first or deceased administrator, cannot stand in judgment in his twofold capacity, and no trial can be had on the opposition as long as the complication lasts.
    APPEAL from the Second District Court, Parish of Bossier. .Drew, J.

      J. A. Snider and Lowry <& Vance for Plaintiffs and Appellees:
    1. Appellants are estopped from assailing a judgment which is sustained by their own motions for non-suits.
    2. Pending a trial upoX exceptions filed by one party to a suit, the opposing party cannot avoid the force of the exceptions by non-suits. Crocker vs. Turnstall, ü H. 354 ; Torke vs. Allen, 20 A. 237,
    3. If the facts in a case be sufficiently stated in the pleadings to sustain a legal proposition raised by an exception, the use of the phrase “by reason of tho law,” in the judgment, is a compliance with Art. 87 of the Constitution. Hemken vs. Farmer, 3 R. 155 ; Powell vs. Oneal, sheriff, 24 A. 523.
    4. The action was premature, because it demanded judgment against the heirs of the surety on an administrator’s bond without first having liquidated, by a judgment, the debt claimed from the principal on said bond. Pickett et als. vs. Gilmer et ais.. 32 A. 991.
    5. A party oannot be both plaintiff and defendant in the same suit. Succession of Farmer, 32 A. 1037/

      Land & Land on the same side :
    1. An administrator’s bond is extinguished by the performance of its condition, and both principal and surety are released and discharged. Performance is payment of the bond. R. C. C. 2131.
    2. When the contract of the surety is changed by the creditor, or by legal authorization, the surety is released, There are no presumptions against sureties; they can only bo’held to the precise terms of their obligations. The surety has the right to stand on the very terms of Jda contract. The creditor has no right to make a/ny change,"though beneficial to the surety, under the penalty of releasing him. R. C. C. 3039; McGuire vs. Woldridge, 6 R. 40; 2 Hennen’s Digest, p. 1532, Ho. 3, and authorities cited.
    3. The voluntary abandonment of a suit or of a demand contained in an answer or opposition does not interrupt prescription. R. C. C. 3519; Horwood vs. Devall,"7 A. 524; Denis-town vs. Rist, 9 A, 464; Elliott vs. Brown, 13 A. 576,
    4. Tlae action of a minor against his tutor respecting the acts of the tutorship is prescribed by four years, to begin from the day of his majority. R. C. C. 362.
    5. A suit on a demand, which has been adjudgedto have nolegal existence, does not interrupt prescription on other claims or demands of the plaintiffs. Pickett vs. Gilmer, 32 A. 991.
    6. The administrator of a succession cannot sue himslf; he cannot,be'&oi/i plaintiff and defendant in the same suit. See all the provisions in the Code of Practice on the subject of civil suits and actions.
    7. The surety on an administrator’s bond cannot be sued before obtaining a judgment against the administrator. Gilmer vs. Pickett, 32 A. 991.
    8. An action or new suit is not the mode provided by law for the revival of suits. Suits are revived by motion, notice or citation. Bailey vs. Smith, 12 L. 506; C. P. Art. 120.
    9. Any judgment obtained by an administrator against the succession which he represents, in a suit in which he is both plai/ntiff and defendant, is an absolnte nullity, which requires no action to set it aside. Xn such a case there is no suit; no citation; no appearance; no joinder of issue,- no trial, and no judgment recognized by' law. C. P. Articles on Suits and Actions.

      J. D. Watldns for Defendants and Appellants:
    A judgment without reasons is void. The mode of attack on appeal is hy assignment of errors. Constitution, art. 87 ; Louque 336, 4 M. 463; 587, 5 M. 202; 2H. S. 540; 12 L. 143; Constitution of 1852, art. 72; 11 Ann. 94; Constitution of 1874, art. 76; 20 Ann. 27; 19 Ann. 525.
    After issue joined by answer, the death of one litigant requires nothing hut notice either by citation or any kind of notice or appearance by the heirs or legal representatives to make parties for a legal trial of the cause. 10 Ann. .505 ; 6 Ann. 705 ; 18 Ann. 40 ; 16 L. 162; 13 Ann. 308 ; 8 Ann. 54; C. P- 21-120-361. All dilatory exceptions are too late after the answer filed in 1868. 11 Ann. 195; 13 Ann. 409; 5 L. 258, 10 R. 139 ; 1 Ann._323.
    The opposition to an administrator’s account is an answer. Ho replication to such opposition is permitted. Whatever allegations the defendant and opponent may make the ‘plaintiff may object to evidence underit, instead of excepting or filing a motion to strike out. 11 Ann. 386, 67L; 28 Ann. 820, 607; 29 Ann. 52L; 30 Ann. 270 ; 13 Ann. 308.
    An administrator can stand in judgment where he is a creditor and his claim is on the tableaux. 15 Ann. 598; 16 Ann. 162; 32 Ann. 890; 24 Ann. 385 ; 12 Ann. 774; 11 Ann. 177.
    Prescription was suspended during the whole time the suit was pending from the filing of the administrator’s and tuters’s accounts. 9th July, 1866, to the end of that litigation which is not yet closed.
    Acceptance by the administrator suspends prescription. 30 Ann. 853-1071.
    When same person is administrator and tutor his possession as administrator continues till he finally accounts as administrator. 30 Ann. 472; 33 Ann. 594; 34 Ann, 400. Any judicial demand in the answer or .in wroug jurisdiction, interrupts prescription as long as the demand is pending. Louqno 574; 4 Ann. 467; 13 Ann. 57; 13 Ann. 307.
    A partition is not final and definitivo where two only of seven heirs file a petition—and judgment in chambers by tho clerk without citation or notice or appearance of five heirs decreeing a partition, is a nullity.
    Where there were seven heirs, and a part of the property divided into seven lots, two only of which were drawn, and the five remained in common, there being four minor heirs, is no partition.
    An act which declares the administrator declares he will in future '‘account for large amounts, so that it is omitted, is not a final partition. Slaves divided in kind, land and movables sold, but price not divided, is not a final partition.
    An act passed in 1S58 could not be made to include funds received by administrator in 1860 and 1866. Such faint and inchoate proceedings as these could not so change the liability of the administrator and security as to release him on Ms bond. 3 R. 313; R. C. C; 1329; 4 Ann. 56-260 ; 14 Ann. 179; 15 Ann. 260 ; 18 Ann. 596; R. O. C. 1378; C. P. 1024. 10 Ann. 236; 30 Ann. 177; 31 Ann 572; 5 Ann. 208; 25 Ann. 215; 18 Ann. 579; 25 Ann. 532; Old C C. 1302 ; 14 Ann. 740 ; R. C. C. 1349 (1271) 1354 (1276).
    All tho heirs of a deceased debtor or creditor, plaintiff or defendant are not necessary parties in reviving a suit where a litigant has died. Each heir is a creditor or debtor for Ms virile share only, and may sue or be sued for that share alone. They are not joint debtors or creditors.
    Heirs are not bound jointly. Each heir may sue orbe sued for Ms virile share, and stand in judgment alone where the others may be dead or not made parties. 5 R. 224; R. O. C. 2111 (2107); 12 Ann. 558; 6 L. 18.
    Joint obligees and joint obligors may sue and be sued separately. 30 Ann. 397; 28 Ann. 403; Acts 1874, p. 19.
    The surety on the bond was Robert Johnson. Robert Johnson died, leaving a widow in community and several children (defend mt’s heirs), who were put in possession of Ms estate. Tho widow and children were sued. Pending the suit the widow died, and the proceedings wore carried on and completed against the children ; the succession of the mother apparently not having been opened. Henry & Joint, obligory and obligors, 28 Ann. 411, Francis vs, Martin, L. He. 490, Ho. 18.
    These children, tho present appellants, now say that the judgment against them being in solido is erroneous; that under no circumstances are they more than jointly bound as heirs of their father, each for his virile share in said half.
    If the question was between the original parties to the bond, priucip >1 and security, there could be but one answer to it. They were both-bound in solido ; as them the obligation is joint. They inherit the rights, credits and obligations of their ancestors, but as the rightsjand credits of their ancestors are distributed among them, each according to Ins
      share; so are the obligations, each being bound for his proportion as heirs of their father; they are responsible for his obligations, they having been put in possession of their share of his estate. There was judgment against these heirs appellants for the sum of one thousand dollars each for his virile share, with interest. 28 Ann. 412.
    Tlioir mother, who had accepted the community and was liable for one-half of the community debt, was sued with these heirs, she died pending the suit: neither she nor her succession wore made parties to the appeal. The supreme court tried the case without her, and gave judgment against each heir of the dead security on the bond for his virile share.
    If the attorney, being ignorant of the death of his principal, should continue under Ms power of attorney, the transactions done by him during this state of ignorance are considered as valid. B. C. C. 3032 (3001).
    In sucb cases the engagements of the agent as to third persons in good faith are carried into effect. B. C. C. 3033 (3002).
    The attorney is bound to complete a thing which had been commenced at the time of the principal’s death if any danger result 1'rom delay. B. C. 3002 (2971).
    A party will not he allowed to delay a trial upon the merits of a cause by pending singly a variety of tecbnical objections tending to retard his adversary’s action. Mealpinevs. Jones, 13 Ann, 409.
   The opinion of the Court was delivered by

Poché, J.

This very complicated litigation grows out of the following facts, pleadings and incidents :

On the death of Nathan Pickett, his son, William M. Pickett, was appointed administrator of his succession, with J. B. Gilmer as surety on his bond. After filing two provisional accounts of administration, which were duly and respectively homologated, he presented his third and final account in the year 1866, and he died before any action was had on his said account.

J. P. Harris, who was appointed as administrator of his succession in 1867, proceeded by rule against the heirs of Nathan Pickett for the homologation of the account presented by W. M. Pickett before Ms death.

That proceeding, which is designated under the title hereinabove first mentioned, was met by an opposition from the lieirs of Nathan ■Pickett, asking for judgment against the succession of the deceased administrator in a very large amount. That opposition was filed in March, 1868. Some time before that, the heirs of J. B. Gilmer, who had died in the meantime, brought an action against the heirs of Nathan Pickett looking to the homologation of the final account of administration of W. M. Pickett, and to the cancellation of the latter’s bond, which liad been signed by their ancestor, J. B. Gilmer.

This suit was not brought to issue before the month of November, 1882, when the heirs of Nathan Pickett filed an answer, in which they adopted the averments contained in their opposition to the final account of administration of W. M. Pickett.

These two contestations being yet undecided in 1879, the Pickett heirs brought suit against the Gilmer heirs, on the administrator’s bond signed by Gilmer, for Sg140,022 80-10Ü. This is the suit which is reported in 32 Ann. p. 991, under the title of Thomas S. Pickett et al. vs. Mattie G. Gilmer et al., and which was dismissed on the double plea of prematurity of action and of Us pendens.

In the meantime, J. P. Harris having died, Thomas G. Pickett, one of the heirs of Nathan Pickett, was appointed administrator of the succession of W. M. Pickett.

Some time after the decision in the 32d Annual, in January, 1881, the heirs of Nathan Pickett, including Thomas G. Pickett, filed a proceeding which they term a “ motion of revival” in the suits which form the title of this decision, and moved for service on all the heirs of J. B. Gilmer and on the administrator of the- succession of W. M. Pickett. Their real object was to bring to trial the two suits above referred to, and to bring into court the representatives of such of the original parties, on both sides, as had died since the institution of the two suits.

Their proceeding was met by numerous exceptions on the part of the Gilmer heirs.

The district judge maintained two of those exceptions, and the present appeal is taken by the Pickett heirs from his judgment thereon. Through an assignment of errors, appellants’ counsel first attacks the nullity of the judgment on the ground that the judge has failed to give reasons therefor.

In his judgment the judge says : “On considering said exceptions and the argument of counsel thereon, it is by reason of the law ordered,” etc.

On inspection of the two exceptions, which will be hereinafter stated, it appears that both presented bare questions of law patent on the face of the record, and hence a reference to the law, under those circumstances, can be held sufficient. Hemken vs. Farmer, 3 Rob. 155 ; Powell vs. O’Neall, 24 Ann. 523.

We do not wish to be understood as sanctioning the form of this judgment even on a simple question of law, but the ends of justice, in the interests of appellants themselves, require that we should examine the judgment on its merits; and hence we feel authorized to give a liberal construction to the point at issue. It has been held that an informally drawn judgment could be considered by tlie Supreme Court. Dorr vs. Jouet, 20 Ann. 27.

The exceptions maintained by the lower court were as follows :

1st. That Thomas G. Pickett, as an heir of Nathan Pickett, could not sue himself as administrator of the succession of his deceased brother.

2d. That the demand was premature as against the heirs of J. B. Gilmer.

Appellants’ counsel charges error in the judgment on the ground that by subsequent pleadings, between the filing of the exceptions and the trial of the same, he had stricken out those portions of Iris prayer which called for service on the administrator of W. M. Pickett’s succession and against the heirs of Gilmer, and hence he argues that these two exceptions were no longer before the court.

He may be correct in that contention, but we find no necessity for its discussion in order to reach a just conclusion in the premises.

Eor the sake of argument we accept his theory, and we concede that on trial of the exceptions there was no prayer to bring either the administrator of the W. M. Pickett succession or the heirs of Gilmer into court. But counsel forgets that those parties are the only plaintiffs in the two suits which he was seeking to “revive,” and his amendment therefore stripped his motion of all demand for relief as regards the making of necessary parties. After his amendment of non-suit, as he terms it, his prayer was therefore to “revive” a suit without plaintiffs ; for his clients, as he contends correctly, were defendants in both suits. This would be a fair illustration of the play of “Hamlet, with Hamlet left out.”

But he argues that, by voluntarily accepting service of the petition of “ revival,” Thomas G. Pickett, administrator of the succession of W. M. Pickett, legally became the plaintiff in the suit filed by his predecessor, Harris. Granted; but he is a defendant and an opponent in that very suit, and thus he seeks to perform the feat of being plaintiff and defendant in the same suit. And right there our jurisrpudence interposes an insurmountable obstacle in his way, and befalls under the effect of the first of the two exceptions which wm now have under consideration. It is now well settled in law, as it stands to reason, that an administrator cannot sue himself, and “viceversa.” Succession of Farmer, 32 Ann. 1037 ; McKnight, Administrator, vs. Calhoun & Lane, 36 Ann. 408. Appellants are therefore impaled on either horn of this dilemma: Their proceedings have either made Thomas G. Pickett-, as administrator, a party to the snit -which they are seeking to “revive,” or they have not. If ho has been made a party, the law forbids him from occupying that dual position, and there is no plaintiff in the suit; aud if the amendment excludes him in his official capacity from the operation of the motion, then in that case there is no prayer for making parties, and the court could make none.

On' the second exception, the amended pleadings specially exclude any demand as to the Gilmer heirs; hence that suit stands without all the necessary parties, and it certainly cannot proceed in its present attitude.

As the other exceptions interposed by the Gilmer heirs have not been passed upon by the court a qua, they are not before us for review on the present appeal, and benee they remain undisposed of.

Under our understanding of the judgment of the lower court, these may not be the reasons which actuated the judge iu bis decree; but the judgment of dismissal of the motion, with the reservation of appellants’ rights to institute proper proceedings, has done full justice to all parties aud meets writh our approval.

Our rules of practice point out several modes by which these appellants can reach the issue which they are seeking to test, but it is not our province to indicate them.

Judgment affirmed.


author: Todd, J.

text:
    No. 145.
    The State ex rel. W. M. Hunter vs. R. L. Capers.
    In a contest for the office of justice of tlie peace, nnder the Intrusion into Office Act, two commissions had issued, one to each of the litigants. In the last commission there was recital that the first commission had issued in error. Held, that the second commission was the higher authority, and the one holding it had a prima facie right to the office.
    APPEAL from the Tenth District Court, Parish of Red River. Mall, J.

      John G. Pugh, District Attorney, and James P. Pierson for the Relator:
    "When the question involved is the title to an office, and on the trial two commissions are presented, one hy each of the claimants, aud the question of right depends solely and exclusively upon the commissions, the latest in date will be presumed to confer the better right. Manning’s IT. Cases, p. 75; 16 A. 438; 19 A. 210.

      L. B. Watlcins and 8. A. Hull for Defendant and Appellant:
    1. An election commission signed bv the Governor is prima facie evidence until rebutted and set aside, after a contest, according to law. Collin vs. Knoblock, 25 Ann. 264; State ex rel. Ford vs. Miltenberger, 33 Ann 266; State ex rel. Collins vs. Jumel, 30 Ann. 861; State ex'rel. Yienne vs. Hyams, 12 Ann. 719; sec. 54 of Act 100 of 1870.
    2. The intrusion-into-office law only contemplates cases in which the parties hold adverse muniments of title importing right in the holder—to cases where one of the litigants claims by a certificate of election, and the other by appointment, exhibiting his commission. Collin vs. Knoblock. 25 Ann. 264; State ex rel. Ford vs. Miltenberger, 33 Ann. 265; State ex rel. Bonner vs. Lynch, 25 Ann. 267.
    3. In the absence of any statutory authorization, the courts are without jurisdiction ratio materice to entertain the case of a contested election, and then only to the extent and in the manner provided. State vs. Judge, 13 Ann. 89; Ford vs. Miltenberger, 33 Ann. 267; B. S. secs. 1491, 1421; sec. 1 of Act No. 24 of 1877; Belden vs. Sherburne, 27 Ann. 305.
    4. The elective commission of defendant has date 22d of May, 1884, and thereunder he took the oath of office on the 29th of May, 1884, and had same filed iu the office of the Secretary of State on the 14ih of June, 1884.
    Defendant was his own predecessor.
    On the 17th of June, 1884, a like commission was issued to relator, and on the 27th of June, 1884, he was qualified.
    Plaintiff’s petition admits defendant’s possession on the-November, 1884, when filed.
    Defendant’s commission was attested by Will A, Strong, Secretary of State; while that of relator is attested by Oscar Arroyo, Secretary of State. Defendant was qualified before L. M. Howard, clerk; but relator was sworn by F. B. Williams, clerk.

    Between the date of defendant’s qualification and the issuance of relator’s commission, a change had taken place in the State government, and a new one had been inaugurated. Secs. 39 and 40 of Act 58 of 1877.
    Prior to the issuance of relator’s commission, the Secretary of State, Will A. Strong, and the Governor.had performed and completed the duties required of them by statute and were, quoad the general election of 1884, functus officii. State ex rel. Barbin vs. Black-man, 32 Ann. 584; State ex rel. Blackman vs. Secretary, 32 Ann. 11; Cooley’s Const. Lim., pp. 621, 622, and note.

    Oscar Arroyo, Secretary of State, successor to Will A. Strong, was without authority to alter his predecessor’s promulgation of returns.
    5. Which of the two commissions is the better evidence of title 1

    delator's counsel relies on the case of Hunter vs. Blackman, Manning’s TJhreported Cases, p. 75, wherein the court held, that “if the question depended solely upon the two commissions, * ■* in the absence of proof to tbe contrary, the presumption is in favor of that bearing the latest date.” 16 Ann 438; 19 Ann. 210.
    That opinion is in direct conflict with that in State ex rel. Ard. vs. Bankston, 23 Ann. 375, in which, under a similar state of facts, the contrary presumption wrs announced.
    The two decisions cited in thformer opinion do not bear it out. These cases are to the effect that when the Governor is given the authority by statute to appoint an officer and remove him from office and appoint another, there is a legal presumption that the Governor has done Ms duty, and the last commission will be maintained in the absence of adverse proof. Dubuc vs. Toss, 19 Ann. 211; State ex rel. Bichardson vs. Graham, 25 Ann.73; State exrel. Attorney General vs. Doherty, 25 Ann. 119; State ex rel. Doyris m Yoist, 25 Ann 396; State ex rel. Webber vs. Fisher, 26 Ann. 537.
    The doctrine announced in Hunter vs. Blackman goes no further; it does not extend to elective commissions issued by the Governor.
    In Kahn and Bigart as. Sippili, 35 Ann. 1040, this court says, “the decision rested on another and different (point and the point passed upon in the ruling or dictum invoked * * was not nesessary to a decision of the case under consideration. Hence, we conclude that the dictum is not binding in jurisprudence. Cooley Const. Lim., pp. 621, 622 and notes.
    6. The incumbent of a constitutional office, holding an elective commission from the Governor, cannot be removed and another commissioned, until his commission has been annulled and set aside in some judicial proceeding, contradictorily with him. State ex rel. Attorney General vs. Wharton, 25 Ann. ll; State of Louisiana vs. Kteider, 21 Ann. 482; State ex rel. Downes vs. Towne, 21 Ann. 491.
    7. The elective commission of a constitutional officer is conclusive of the fact of his election until set aside in a contest according to law. State ex rel. Leonard vs. Jaclcson, 27 Ann. 541; sec. 54 of Act Ho. 100 of 1870 ; sec. 3 of Act. Wo 1 of 1877.
    8. Vacancies can only be filled when the power to do so is expressly conferred by tbe authority on which this power is couferred, and in the manner provided by the Constitution and the law. State ex rel. Attorney General vs. Eareshide, 32 Ann. 937.
    9. In issuing elective commissions the Governor acts ministerially, and only performs a duty required by the election law. Sec. 40 of Act Ho. 58 of 1877.
    He can exercise no judicial power or function. Art. 80 of Const.
    He cannot exercise any power or authority over elections by the people.
    He “ shall have power to fill vacancies that happen.” Art. 69 of Const.
    He has no authority to consider or weigh, any evidence touching the votes oí* election returns. “Any irregularities in the elections resulting from fraud, violence or any other cause are to be corrected * * * by the proper judicial triMmals.” Collin vs. Knobioch, 25 Ann. 264; State ex rel. Barbin vs. Secretary of State, 32 Ann. 579; State ox rel. Blackman vs. Secretary of State, 32 Ann. 173.
    10. In support of the doctrine announced in State ex rel. Ard vs. Bankston, 23 Ann. 376, we cite: State ex rel. Edmonson vs. McHeely, 24 Ann. 19; State ex rel. Wittguestein vs. Herron, 24 Ann. 432; State ex rel. Downs vs. Towns, 21 Ann. 490 ; State ex rel. Claiborne vs. Parlange, 26 Ann. 458; State ex rel. Cooper vs. Schumaker, 27 Ann. 332 ; State ex rel. Leonard vs Jackson, 27 Ann. 541; State ex rel. Lisso vs. Peck, 30 Ann. 251; State ex rel. Attorney General vs. Eareshide, 32 Ann. 934,
   The opinion of the Court was delivered by

Todd, J.

This ease presents a contest for the office of justice of the peace of the Second ward of the parish of Red River, under the Intrusion into Office Act, being Act 56 of 1868.

There is a motion to dismiss the appeal for want of jurisdiction in this Court, ratlone materice. The relator avers that the office is worth more than five hundred dollars, and the defendant that its value exceeds two thousand dollars.

Talcing the pleadings as the test, without any suggestion that the estimate made therein is fictitious, or any reason to so conclude, we think this Court has jurisdiction, and the motion to dismiss is denied. 33 Ann. 1051.

On the Merits.

At an election held in April, 1884, the relator and defendant were rival candidates for the office mentioned.

On the 22d of May thereafter the defendant received from the Governor a commission, and qualified under it.

On the 17th of the following month the relator also received a commission for the office. This commission, containing the recital “ that at an election held on the 22d of April, 1884, * ° >J William Hunter {relator) was declared duly elected j ustice of the peace for Second ward of Red River parish, La., vice R. L. Capers, who was commissioned in error,” etc.

There was judgment in favor of the relator, from which the defendant has appealed.

The only evidence before us are the two commissions referred to.

In an elective office the right and title to the office is not conferred by the commission of the Governor, but by the electors voting at such election—-the one receiving the highest number of votes being legally entitled to the office, unless under some disqualification. The commission is but the evidence that the person named therein was thus duly elected to the office.

Section 40 of Act 58 of 1877.provides : “It shall be the duty of the Governor, not less than thirty days after each general election, to issue commissions to all officers shown by the compilation of the returns to have been elected.” Another section makes it the duty of the Secretary of State to make this compilation.

If, in point of fact, the one commissioned has not been duly elected, has not received the highest number of votes cast, though the commission so declare, he is not entitled to the office.

The question here arises that, if a commission issues thus certifying to a fact that does not exist, does it lie in the power of the Governor or other officer issuing it to correct the error and grant a commission to the party really and legally entitled to it; and will such second commission be of higher authority than the first one,?

We are constrained to answer these questions in the affirmative.

It is an elementary principle that all executive officers, and those exercising ministerial functions—save in exceptional cases, which have no application here—have the right and it is their duty to correct errors or mistakes in returns, reports and other acts done in the discharge of the duties imposed upon them by law. Thus, any error committed by the Secretary of State in tabulating or compiling the returns of election made by the proper returning officers may undoubtedly be corrected by him. And if such compilation, before corrected, should have misled the Governor, or otherwise he should have been led into such error, and under such error should have issued a commission, it was certainly his right and duty to correct it.

Again, there is a legal presumption in favor of such officers of having correctly and faithfully discharged their duties. This principle applies with full force in favor of the act of the Governor in this instance with respect to the commission issued to the relator and the recital of the error therein made relative to the former commission. It was in consideration of this principle that the enunciation was made in the case of Hunter vs. Blackman, Manning’s Unfeported Cases, p. 75, that full credit was to he given to the second commission therein referred to, which we approve as a correct exposition of the law.

We have examined with great care all the authorities referred to in the able brief of the defendant’s counsel, but find them not in point.

Judgment affirmed.


text:
    No. 155.
    Green Brothers vs. Boykin Witherspoon.
    A conveyance of lands without description of boundary or location, but merely as “all other lands owned by the vendor in the State of Louisiana,” is inoperative as notice to the public of any particular tract conveyed, if not void for want of description.
    Thirty years’ prescription may be successfully invoked by a possessor in good faith of tracts of woodland forming parts of a plantation upon which he has lived continuously for that time, although he may not have felled a tree from those tracts or done any other acts of corporeal possession of that part of his plantation.
    A PPEAL from the Tenth District Court, Parish of De Soto. rL Hall, J.

      Logan & Head for Plaintiffs and Appellants:
    1. “ The party who pleads prescription is hound to prove the facts necessary to sustain the plea.” 15 A. 332, and 31 A. 88.
    2. “A party without title can avail himself of no prescription except that of thirty years.” 12 M. 535.
    3. “ There must be actual corporeal possession precedent to civil possession as a basis of commencement for the ten or thirty years’ prescription.” 15 La. 580; Dodimon vs. Bonow, 11 A. 87; O. C 0.3467; B. O. C. 3503 ; Gay vs. Ellis, top of 252.
    4. “It has been held the digging of a canal or felling trees, or the occasional cutting of wood on uncultivated land, does not constitute such a possession or can be the basis of the prescription of ten or thirty years.” Eittridge vs. Hebort, 9 A. 156 ; McCarty vs. Eouche, 12 M. 115 A. 594.
    5. “ To acquire immovables under the ten years’ prescription there must be a title whioh is legal and sufficieutto transfer the property.” 9 A. 282; O. C. 3479.
    6. “ It is necessary besides that the title be valid in point of form; for if the possession commenced by a title void in that respect it cannot serve as a foundation for prescription ” C. G. 3486; 3 B. 220; 15 La-106 and 226 ; 7 N. E. 508.
    7. “ Possession must be held in fact and iu right as owner, and. must have commenced by actual corporeal possession ” Eittridge vs. Hebert, 9 A. 154; G, G. 34, 87.

      8. “ It is sufficient if he enters on and occupies a part of the land, provided it be with the intention of possessing all that is included within the boundaries.” This does not mean that a party who claims disconnected bodies of land can prescribe for all of these disconnected bodies by occupying one of the parcels. 11 A. 472.
    9. “Actual possession of a part of a tract of land, with title to the whole, is possession of the whole, but the party * * * ” IE. 159.
    10. “Prescription will run in favor of a purchaser of land who has exercised no act of possession only from the date of his recording of his titte on the parish in which the land is situated.” Tear etal. vs. Williams et ah, 2 A. 868; 3 B. 220.
    11. “ Hot only good faith and possession of real estate for ten years is required, but also a legal transferable title of ownership is required in order to acquire said property by prescription.” Pendegrast vs Schmidt, 3 A. 590.
    12. “Possession under an act of sale not recorded is not sufficient notice to creditors and subsequent purchasers to defeat the effect of the registry laws.” Moore vs. Jourdan, 14 A. 414.

      O. M. Pegues for Defendant and Appellee:
    Where the party in possession holds under a private act, it is not necessary that the act should be recorded to show the extent of the possession under it. The possession alone is sufficient to put the adverse party upon inquiry as to its extent, and actual possession of a portion is sufficient. 9 A. 199; 19 L, 489; O. 0. 3501, 3437; 11 A. 471; 7H. S. 122.
    The sale of all real estate a person owns in the State, without any description of property, is void as to third persons for that reason. 10 A. 613; Pargoud vs. Paco.
    The registry laws are intended for the protection of bona fide subsequent purchasers of the vendor, and do not apply to persons purchasing from an heir or legatee of the vendor who was never in possession of or claimed the land. 10 A. 575; Buie vs. Doyal.
    A government title need not be recorded. 2 A. 869 ; 2 B. 40.
    A ratification of the acts of an agent in making a purchase stands in the place of an original mandate in due form. C. C. 3010 ; 10 A 575.
    The admissions of an agent in writing are as binding as answers to interrogatories or facts and articles would be. 12 A.753; 4 A. 39 ; 7A.31.
    Certificate of entry may be transferred, and such transfer is binding upon the heirs and assigns of the transferrer, whether registered or not. C. C. 2442 ; 4 A. 268; 9 A. 137; 12 A. 124 ; 4 B. 79.
   The opinion of the Court was delivered by

Manning, J.

The plaintiffs sue for the recovery of four hundred acres of land in De Soto parish contained in four several parcels and situated within the boundaries of a large plantation of the defendant. They claim title from Edward A. Edwards, who derived his title from the will of Charles A. Edwards as his universal legatee. The defendant claims from the United States Government through an entry made for him by the same.Charles A. Edwards.

The defendant immigrated from South Carolina to De Soto parish in December 1854 at the invitation of his friend Charles Edwards who owned a large quantity of land there and in neighbouring parishes. He immediately bought of Edwards 1560 acres and began building a dwelling, cabins, crib, etc. There were interspersed in the midst of ttliis tract tlie four several parcels now in controversy that had not been ■entered, and the defendant at once availed himself of the opportunity to ensure their ownership.

In the following month (January 1855) he handed five hundred dollars to Edwards, who was going to the land-office at Natchitoches, to ■enter these parcels for him and Edwards did it, but the entries were made in his (Edwards) name. Immediately on his return home Edwards delivered the certificates to Witherspoon having endorsed upon each of them—“This land was entered by me for, Boykin Witherspoon and paid for by him,” and signed each endorsement.

The defendant has remained in possession of this plantation from that time until now. His cabins were built upon one of these parcels of land in dispute. He had as much corporeal possession of the three •other tracts as any planter has of the outlying woodland that is a part of his plantation. The two Edwards were his neighbors and never pretended to any ownership of these lands, nor did he hear of any •adverse claimant until shortly before July 20,1885, when this suit was instituted. The prescription of thirty years was pleaded.

The plaintiffs’ title is claimed in this way: Charles Edwards died in 1865 and bequeathed all liis property to his nephew Edward ex■cept two legacies. In 1870 the nephew sold the plaintiffs the numerous tracts of land his uncle had from time to time entered or otherwise acquired, describing them by the land-office designations as quarter-sections, half-sections, sections, etc. in the proper townships. These are set out with all that minute particularity and careful attention to figures and the parts of the sections to be conveyed that such description required, but no where in the long list of lands thus described in that deed does either of the four parcels of land now in controversy appear. If Edward Edwards intended to convey them his omission to •sav so when all other tracts are specifically described is surprising, but after the specific description there is added—“also all other lands, tenements and real estate of every description not heretofore particularly described of him the said Edward A. Edwards, owned by or belonging to him or to which lie is legally entitled in the State of Louisiana.”

The plaintiffs claim under that clause. They say that Charles Edwards entered these parcels in his own name, and his endorsement upon the certificates that he entered them for Witherspoon and with Witherspoon’s money is not receivable in evidence, and they are therefore entitled to recover the lands. No patents were ever issued to any one. Nothing was ever issued but these certificates and Witherspoon had kept them in his desk until June 27, 1885, and only then had them recorded because the demauds preliminary to this suit were then made.

The plaintiffs invoke oar registry laws and the codal peremptory requirement that all sales and contracts affecting lands must he recorded on pain of- nullity except between the parties. Rev. Civ. Code, art. 2266. There is no pretence that Witherspoon had recorded his certificates until the date above stated, but the plaintiffs are in no better condition and they cannot recover on the weakness of their adversary’s title but alone on the strength of their own.

The object of registry is notice. The plaintiffs’ deed made and recorded in 1870 contained no mention of the lands in controversy. No one could derive knowledge from it that the lands had been conveyed-No one could be apprised by it that these lands formed buy part of the subject matter of that contract of sale. As to those lands it was inop - erative so far as notice is concerned if not wholly void for want of description. Pargoud v. Pace, 10 Ann. 613.

Tile defendant’s plea of prescription must be maintained. It is conceded that he has actually possessed for thirty years the parcel of forty acres upon which lie-built his cabins, etc. and the claim to that is abandoned. The single difference between his possession of that and the other three parcels is that he built cabins upon that, while he cut rails from another and is not sure that he felled any trees upon the other two. But none of them were detached from his plantation. One appears by the map to he the border of it, but all were incorporated and had been incorporated for thirty years in the plantation upon which he had uninterruptedly lived, which had been assessed as his property every year and upon which he had regularly paid the taxes. Such continuous undisturbed possession gives him title. Giddens v. Mobley, 37 Ann. 417.

The judgment below was for the defendant. It is approved in law and equity and justice commend it.

Judgment affirmed.


author: Fenner, J.

text:
    No. 156.
    Leroy Templeman vs. Hamilton & Co. et al.
    Where a note with the mortgage securing the same are assigned by notarial act “without recourse,” the latter words amount to a mere stipulation of non-warranty; and their effect, so far as the mortgage is concerned, is governed by the Civil Code and not by the Law Merchant.

      Here knowledge of attorney at law, not derived in his capacity as attorney of plaintiff but from his attorneyship for another party, is not binding as notice to plaintiff.
    The assignor of an incorporeal right, even under stipulation of non-warranty' warrants’the existence, not only of the right, but of the mortgage or other accessary securities attached to and transferred with it.
    When a mortgage thus transferred turns out nob to have existed as to apart of the land covered by it, remaining go >d as to the rest, the transferror is bound under the warranty to make good only the loss from such eviction.
    If the remaining security is sufficient to make good the debt, and if it is lost or impaired only through the act, negligence or fault of the transferree, he loses his recourse on the» transferror on account of the oviction.
    A PPE AL from the First District Court, Parish of Caddo. Taylor, J.

      Watkins & Watkins and T. F. Bell for Plaintiff and Appellant:

      Where the sum of money paid and promised for property is given with some other thing of much less value the contract is a sale. It is not an exchange or a giving in payment. Sue. Rur* niss, 34 Ann. 1015; Ward vs. Levy, 32 Ann. 786; Jenkins va. Caddo, 7 Ann. 559.
    Yendor transferred a judgment in solido versus four persons—one proved he was not bound. A suit in warranty was sustained for a partial eviction one-fourth. 2 Ann. 880.
    He who sells a debtor in corporal right without recourse warrants its existence. If vendee is evicted in part he can sue in warranty for the value of the evicted part without suing for rescission. Such is the case where vendor is in part evicted from a mortgage transferred. 2 Ann. 880.
    Troplong Yente, volume 2, Ho. 993, The warranty is that the debt existed and the mort gage security existed though the words without recourse is used. This relieves transferror rom warranting the solvency of the debtor only. 2 Ann. 880; 7 Ann. 559 ; R. C. C. 2504 and 2646 and 7 Ann, 268 and 13 Ann. 229.
    Yondee or transforree evicted of part may sue vendor in warranty for the value of the evicted part. R. C. C. 2511 and 2500; 13 Ann. 145; 6 R. 506 ; 2 Ann. 880 ; 7 Ann, 559-268; 13 Ann. 229, 145 ; 13 Ann. 501; 6 Ann. 304; 6 H. S- 523 ; as to part evicted, R, C, C. 2500, 2501, 3 Ann. 326; 7 L. 50; 5 Ann. 276; 15Ann.424; 3 L. 396; 14 Ann 716. If the property sold is no longer in existence no suit for rescission will lie resperit domino-3 L. 397.
    If the thing sold has been impaired in value by the vendee by 'his neglect the vendor on> eviction is bound for the restoration of the full price. R. C. C. 2507 (2483) and Daiquin vs. Coiron, 3 L. 396. ,

    The only prescription would be ten years. An act in warranty is to enforce a personal obli. gation Commencing from eviction in July, 1876, which has not elapsed. 7 Ann, 562 ; 2 Ann. 144; 7L. 470; 11R. 403; 13 Ann. 145; 17Ann. 42; R. C. C. 3544,

      Alexander & Blanchard for Defendants and Appellees :
    1. Under the state of facts shown by this record, if the plaintiff ever had any claim against defendants, his proper remedy was to sue to rescind the sale for [non-payment of price. 7 Ann. 201; 10 Ann. 23. See also 7 Ann. 268, 559.
    The right to bring such suit to enforce the resultory condition is prescribed by ten years. 1 Ann. 440; 11 Ann. 654; 16 Ann. 129.
    This time commences to run from the date of the maturity of the last note, 28 Ann. 598; 34 Ann. 989.

      In this case more than twelve years elapsed from the maturity of the notes till the filing of this suit

      2. The notes transferred by defendants to plaintiff wore negotiable promissory notes, coming strictly under the law merchant, and having been transferred “without recourse,” under the settled rules of the commercial law, defendants were released from any liability therefor.
    ‘That these notes were secured by mortgage does not restrict their negotiability, nor take them from under the lex mercatoHa. 3 L. 241; 7 L. 571; 16 L. 207; 6 R. 62 ; 8 Ann. 457; 11 Ann. 664 ; 27 Ann. 561.
    The Civil Code was not intended to embrace, nor does it apply to the commercial law. This was contained in the “Commercial Code,” compiled, but never adopted. This branch of our law is controlled by the law merchant which prevails throughout the United States. H. X). Title Laws, vii., p. 795.
    In case of conflict between the rules of commercial law and the articles of the Code the latter is to be disregarded, and the former prevails. 2 R, 120 ¡ 4 Ann. 210.
    The article of the Civil Code relating to the assignment of credits and incorporeal rights does not apply to the transfer of negotiable notes or drafts. 7 Ann. 561.

      2. At the time of the transfer of the notes, without warranty, the suit was pending by which Gilmer was evicted from a part of the mortgaged lands. The same attorney who represented Gilmer in that suit represented and advised plaintiff in the sale of the oil mill property and the transfer of the notes and mortgage. The plaintiff thus had knowledge of the danger of eviction and purchased at his peril.
    ^Knowledge of .the agoutis knowledge of the principal, and knowledge of the attorney is knowledge of the client. 2 Ann. 316; 14 Ann. 711. Weeks on attorneys-at-law. Sec. 237 and note, p. 408.
    It is not necessary that the act itself should recite that plaintiff acquired the notes at his risk and peril. ‘ ‘ Having knowledge of the danger of eviction, he is held by implication from those facts, to have purchased at his risk and peril. 34 Ann, 648.

      ■A. Warranty is essentially in the nature of a suretyship. If defendants were bound to plaintiff in any way, their obligation to him was, that in event Gilmer failed, to pay the notes, and the mortgaged property proved defleient, they would pay the Gilmer debt, to the amount of the notes, and look to Gilmer for reimbursement.
    'The surety is discharged by an extension of time granted to the debtor, and also when by the act of the creditor, the subrogation to his rights, privileges and mortgages can no longer ho operated in favor of the surety. C. C. 3061, 3063; 1 Ann. 254 ; 1 R. 212, 301 15 Ann. 522; 16 Ann. 357; 32 Ann. 497.
    'The form of the obligation is not material. 15 Ann. 522.

      a1 Where two persons are bound by the same contract to a third for the same debt, and when one of these obligors has upon payment of the debt, a right of subrogation thereto, and of recourse for the amount paid upon his co-obligor, any contract between tho creditor and the ultimate debtor whereby delay is granted or securities are surrendered or diminished will discharge the obligor entitled to such recourse and obligation, unless Ms consent he obtained.” 32 Ann. 497.
    'The fact of the debtor’s insolvency does not affect the question of the surety’s discharge. 3 R. 299.
    'Plaintiff not only granted extensions ,of time to Gilmer, but also by his various acts and agreements placed it out of his power to subrogate defendant to bis rights, mortgages, etc.
    ,15. Plaintiff has suffered no loss; on the contrary, has been benefited to the full amount of the notes. He transferred them to Cash as collateral security for a sum almost equal to the full face value. Ho part of this debt wus ever paid back by him to Cash, but Cash took the land upon which the Hamilton mortgage rested, and released plaintiff from hi» debt.
   The opinion of the Court was delivered by

Fenner, J.

The following are the pertinent facts:

On August 9, 1872, Templeman, who was half-owner with Hamilton & Co. of an oil mill and lots on which it was located in Shreveport, sold his said interest to the latter for $35,000. As part of the price, Hamilton & Co. transferred to Templeman two notes of Gilmer for $9970 11, running to maturity and secured by a mortgage on a plantation of Gilmer in Bossier parish comprising 1623 acres of land. In connection with the act of sale, and for the purpose of giving Temple-man an authentic title, Hamilton & Co. executed a notarial act of assignment and transfer of the notes and mortgage to Templeman, which contains the following stipulation : The said Hamilton & Co. hereby subrogates the said Templeman to all the rights, privileges and actions which they have in or to the said mortgage, but it is specially agreed and understood that this transfer is made without recourse on said Hamilton & Co.”

After maturity of the notes, Templeman brought suit upon them, and on March 30,1876, recovered judgment against Gilmer with recognition of the special mortgage on the land.

Prior to these transactions, and even before the execution of Gilmer’s mortgage, there had been pending a suit^by H. A. Jones et al. against Gilmer, claiming title to 480 acres of the lands mortgaged.

It appears that neither Hamilton & Co. nor Templeman had personal knowledge of the pendency of this suit; but Templeman himself testifies that L. M. Nutt, Esq. acted as his attorney in the transaction between himself and Hamilton & Co. about the transfer of these notes, and Nutt was the attorney of Gilmer in the suit of Jones et al. against him and therefore necessarily knew of its pendency.

In 1874, judgment had been rendered in the district court rejecting Jones’ demand, but in July, 1876, that judgment was reversed by this. Court, and Gilmer was evicted from 480 acres of the land covered by the mortgage.

Although Templeman had knowledge of this eviction, he proceeded: to the execution of his judgment upon the remaining 1143 acres of land, without making any demand upon Hamilton & Co. on account thereof and without even notifying them of the fact of eviction. Indeed, it does not appear that Hamilton & Co. ever acquired knowledge of any claim of Templeman against them, or even of the fact of eviction, until tlie present suit was instituted in May, 1885, nearly eight years after the remaining land had been sold in execution of the mortgage. After this eviction, the remaining 1143 acres of land stood subject to three mortgages:

1st. That ot Lydia Wilson, owned by P. R. Cash.

2d. That of P. B. Cash.

3d. That of Templeman.

The three amounted in the aggregate to between $20,000 and $22,000.

The testimony in the record is unequivocal and unanimous (including that of Templeman himself) that the 1143 acres were worth fully thirty-five dollars per acre, or nearly double the entire mortgages resting upon it.

There then ensued a series of agreements between Templeman, Cash •& Gilmer, as follows:

1st. On April 28, 1877, Templeman executed an assignment and transfer of his judgment and mortgage to Cash, as collateral security for a debt of $9,126 23, due the latter, with a separate agreement, however, that Templeman should, nevertheless, execute the judgment in his own name, reserving to Cash the right to claim the proceeds, and, accordingly, Templeman issued his fi. fa. and caused the 1143 acres, to be seized and advertised for sale on September 1, 1877.

2d. On August 11,1877, Cash and Gilmer enter into au agreement by which Cash obligated himself to buy in the property at the sale, provided it did not sell for more than the amount of the three mortgages, and agreed, in'the event of such purchase, to let Gilmer remain on the place and cultivate it, and to redeem it by paying $2,600 on account of the Templeman mortgage on 1st December, 1877, and the balance in installments, the last falling due in five years, with the condition that, on failure to pay any installment when due, his right to redeem should be forfeited and he should surrender the place.

3d. Templeman, though not a party on the face of the foregoing agreement, took cognizance of it by an agreement entered into between him and Cash on the same day, under which Cash again expressly obligated himself to buy in the property, provided it did not sell for more than the amount of three mortgages; and it was further agreed that, in case of failure in any of the payments stipulated as above to be made by Gilmer, Cash should convey the property to Templeman for the amount due him on the three mortgages, and give him four years time to pay it in.

These agreements all took effect. The sale was made without •appraisement, as stipulated in the mortgage. Cash, instead of bidding the amount of the three mortgages, as he might have been required to do under his agreement, was permitted to buy it in at the price of $12,706 66, barely sufficient to pay costs, taxes and the two •prior mortgages, leaving but a trifle to go to the Templeman mortgage.

Gilmer remained in possession, but failed to make the first payment •of $2,600 as agreed. Thereupon he was dispossessed, and in January, 1878, Cash sold to Templeman, for the nominal price of $15,883 24, but with an additional mortgage for $6,221 62, granted by Templeman to Cash the same day, making an aggregate price of $22,104 86, payable in four years as agreed. Templeman failing to pay the first installment, Cash made judicial foreclosure, which was merely formal, however, because made under another agreement that Cash should buy it in, and, at whatever price, that he should relieve Templeman from ithe entire indebtedness, as well as from an additional debt of $1,000 •and interest due by him to Cash on a different account, which agreement was fully executed.

So this matter was finally settled in 1879, and yet no demand was made on Hamilton & Co. until 1885, six years afterward.

He now sues Hamilton & Co. for the amount of the two mortgage •notes transferred to him, or $9,970 11, with 8 per cent, interest from .1873, aggregating nearly $20,000, on the grounds that the 1143 acres validly mortgaged yielded nothing toward their satisfaction, and that Hamilton & Co. were bound as warrantors of the mortgage on the 480 .■acres, which, if existing, would be sufficient to satisfy the entire debt.

Lot us now consider what is the law applicable to the facts thus ■elaborately detailed:

1st. We consider the words in the transfer, “without recourse on .Hamilton & Co.,” as amounting to nothing more than a stipulation of non-warranty, and that its effect in such an assignment as that-here made, so far as the mortgage is concerned, is governed by the provisions of our Civil Code and not by the Commercial Law.

2d. We do not consider the knowledge of Nutt, attorney, of the pendency of Jones’ suit, as the knowledge of Templeman, in such manner as to convey to the latter notice óf the danger of eviction, and ithus to make him a purchaser “at his risk and peril” under art. 2505? •C. C., as expounded in R. R. Co. vs. Jourdain’s Pleirs, 34 Ann. 650.

No notice, express or implied, was conveyed to Nutt in his capacity •as attorney of Templeman. What knowledge he had was derived by him entirely outside of this transaction and in his capacity as attorney of Gilmer in that suit. For aught that appears, it may have been his; duty to Gilmer not to speak of it to these parties. At all events, there-was no notice to Templeman or to his attorney as such.

3d. It is no longer an open question in our jurisprudence that the assignor of an incorporeal right, even without warranty, guarantees-not only the existence of the right under the express terms of art. —r C. C., but also the existence of the accessory securities attached to and transferred with it.

Troplong says: When a credit secured by mortgage is sold, it is; not sufficient that the credit should exist, it is necessary that the mortgage should be entire at the time of the contract. If a part of the property was, at that time, freed from the mortgage, the transferrorwould be bound to guarantee the transferree, who thus fails to find-all the securities on which he counted, the absence of which may endanger the capital which is due to him.” Vente § 933.

This proposition has been several times quoted and applied by this-Court in cases of assignments without recourse. Toler vs. Swayze, 2 Ann. 880; Corcoran vs. Riddell, 7 Ann. 268; Jenkins vs. Caddo, id 559; Bienvenu vs. Bank, 6 Ann. 524; Rutherford vs. Hennen, 13 Ann. 336.

It follows that, as the 480 acres here involved, did not belong to the mortgagor at the time of the mortgage, the latter did not exist at [the-date of transfer, and Hamilton & Co., were bound to warrant thetransferree.

4th. But, this being determined, the question remains: what were-the nature and extent of the warranty 9 Counsel for plaintiff strenuously contends that it is absolute and unconditional; that Templeman became the perfect owner of the entire mortgage with right of use and abuse; that he could have done what he pleased with the valid mortgage on 1143 acres; that he might have abandoned or remitted it,, or given it away; and that he would still have retained the right to require Hamilton & Co., to respond for the value of the 480 acres,, under their warranty of the existence of the mortgage thereon.

This contention has not the slightest foundation in law, reason or-justice.

The whole object and effect of the mortgage were to secure payment-of the principal debt due on the notes. If, notwithstanding the eviction from the 480 acres, the remaining valid mortgage on the 1143; acres was a sufficient security for the debt, then the eviction accasioned Templeman no loss and ground of action against Hamilton & Co-The gist of his action is, not simply the eviction, but that, thereby, he lost his debt. If the remaining security, in itself sufficient, was, rendered insufficient only by the acts, negligence or fault of Temple-man, he would lose his recourse against Hamilton & Co. The latter’s, warranty partook of the nature of suretyship, and bound them to respond only in case the remaining valid mortgage, properly administered and enforced, should fail to satisfy the debt.

These views are so conformable to reason as hardly to require thesirpport of authority, but the highest authority is not wanting to sustain them, arising on a case entirely analogous, to wit: where thetransferror of a debt secured by mortgage had warranted the continuing solvency of the debtor. In discussing the right of the transferreeto enforce this warranty, Troplong says: “ It is essential that the insolvency should not have been occasioned by the act of thetransferree. If, for example, the transferree has gratuitously released! the mortgages which secured the debt, if he has consented to release some of the sureties or one of the solidary debtors, he. will not be heard to complain that the debt has become bad, because it is himself who has caused it. Alteriper alterum iniqua conditio inferrinon clebet.n' Troplong, vente, No. 940.

He then proceeds to show that a like result attaches when the-securities have been lost or impaired through the mere negligence of' the transferree. No. 941 et seq.

Marcade propounds the same doctrine, saying: “It is evident that, the conventional warranty will not be due, if it was by the act of thetransferree or merely by his negligence, that the debts or the securities, accompanying them have been lost.” 6 Marcadé, p. 343, See also: & Delvincourt, p. 263, No. 6; 12 Duranton, p. 289, No. 171.

Applying these principles to the facts heretofore minutely detailed,, let us inquire through whose fault it was that the 1143 acres remaining validly mortgaged, and shown by all the testimony to be worth nearly double the entire mortgages resting on them, failed to satisfy Temple-man’s debt.

When Templeman learned the fact of G-ilmer’s eviction from the-480 acres, it was his plain duty to have immediately informed Hamilton & Co. thereof. His proper course was then and there to liavedemanded of Hamilton & Co. a rescission of the transfer and payment, of the amount due on the notes, with return thereof and of the mortgage as it stood. If Hamilton & Co. had refused, he might either-ha-ve enforced his demand by action or might have proceeded to fore■close the mortgage, holding them responsible for any resulting defi•ciency.. This would have given Hamilton & Co. the opportunity of protecting themselves, and it is self-evident that they could and would have done so without incurring any loss. We gravely doubt whether in electing to proceed without such notice to, Hamilton, thus placing it out of his power to restore the status quo under a rescission, ,and depriving Hamilton & Co. of the power of protecting themselves in any way, Templeman did not waive and destroy his right of re•course.upon them.

But, even passing this by, it is at least clear that, in proceeding as he did without notice to Hamilton, he incurred the highest duty to act in strict conformity to law and to do all in his power to make the property bring its full value.

Now, a review of the agreements between Templeman, Gilmer & ■Cash, already fully detailed, shows that Cash, who controlled all the mortgages, was willing and had obligated himself to bid for the prop■erty up to their entire amount. Under those agreements, it was perfectly immaterial to Cash whether he bought the property at $12,000, ■or at the amount of all the mortgages. In any event, he was to make .and did make, the same settlement with Gilmer; and, in case of Gilmer’s failure to comply, with Templeman. It is apparent that Templeman had it in his power to make the property bring enough to pay his mortgage, and, even without forcing the bidding, there is no reason 40 doubt that Cash would, on mere request, have bid the necessary .amount, because there was no motive for him to refuse. It was to the interest of nobody but Templeman that Cash’s bid should be a small one, because he got all the advantage under his agreement which would have accrued from a larger bid, and, at the same time, laid the foundation for this enormous claim against Hamilton & Co. A sale made under such agreements has no claim to the effect of a judicial sale in fixing the value of the property.

We have, heretofore, had before us this very sale as affected by the agreement between Cash and Gilmer, and we then held that its effect was to give to che execution sale the force and effect of a voluntary sale. Gilmer v. O’Neal, 32 Ann., 983.

Templeman was privy to that agreement, and this fact, together with his own similar agreement, attach the same character to the sale with regard to him.

It follows that his claim, that this sale must be taken as the measure of the value of the property and as fixing the deficiency for which 'the defendants are bound, is untenable. Regarded as a conventional •sale, it could not have that effect.

The evidence in the case establishes, as we have seen, that the land was worth much more than enough to satisfy all the mortgages on it, -and hence there is no ground for the claim herein.

We might present other considerations showing that Templeman ¡has actually realized in execution of his various agreements with Cash an amount very nearly equal to the whole amount of his claim, as the -direct result of his ownership thereof.

Certainly, if the eviction had never taken place, and if the 480 acres had been exposed for sale at the same time with the 1143 acres, independent of these agreements, and had brought only the same relative ■price, he would have been in no better position than lie is to-day, •under the effect of his agreements with Cash, for he would still have •left a considerable deficiency due on his mortgage, for which there would have been no claim on Hamilton & Co.

From every point of view, the plaintiff’s case seems to us to be •entirely without merit. The claim is either an after-thought or a device to profit at the expense of Hamilton, and, in either view, it ■does not commend itself to favor.

Judgment affirmed.