author: Marr, J. Spencer, J.

text:
    No. 7368.
    Citizens’ Bank vs. Bouny, Tax Collector.
    The exemption of the capital of the Citizens’ Bank by section four of the act of the Legislature of 1836, amending its charter, being based on a valuable consideration, was therefore a legal and binding contract, and thereafter exempted from all State, parish, and municipal taxation the capital of the bank, and all that portion of its profits which were capitalized.
    The Legislature may impose a lax on any property unless restrained by some prohibitory clause in the constitntion, or by some contract.
    Under the peculiar nature of the charter of the Citizens’ Bank it cannot be forced to pay the taxes assessed to its shareholders on the stock of the bank held by them.
    ^PPEAL from the Third District Court, parish of Orleans. Monroe,

    J. C. Egan, Attorney-General, for the State, and S. P. Blanc, assistant city attorney, for Board of Assessors :
    First — That the shares of stockholders are not exempt from taxation under the charter of the Citizens’ Bank. And if they are not exempt by contract, then the Legislature under the constitution of 1868 has no power to exempt them. Section 8 of Act No. 8, p. 229, of the acts of 1878 ; Constitution of Louisiana of 1868, article 118 ; 5 Otto, 116 ; 4 Wal. 268; Burroughs on Tax. 125 and 170 ; Hilliard on Taxation, 228, g 14 ; 18 Wis. 281; 66 N. H. 38 ; 3 Dillon, 330 ; 3 W. 583.
    Second — The shares of the stockholders being properly assessed the bank can be compelled to pay the tax. 9 Wallace, 362 ; Burroughs on Taxation, p. 188 ; 4 Wheat. 436 ; 4 Conn. 490 ; 9 Yerger, 490 ; 3 Wall. 573,581; 4 Wall. 462 ; 9. Wall. 359,473 ; 5 Otto, 687 ; Burroughs on Tax. 126, 171, 189.
    Third — That the property sought to be exempted in this case not being used for church, school, or charitable purposes is liable to taxation. Con. of 1868 ; 26 A. 702 ; 27 A. 519 ; 30 A. 260 ; 46 Barb. 588, 598; 29 A. 851; 23 A. 307 ; 19 A. 475.
    Armand Pitot for plaintiff and appellee:
    First — That for valuable consideration received by the State, as is fully set forth in its original charter, granted in the year 1833, and the amendatory charter, granted in 1830, the capital, and all of the capitalized earnings of the Citizens’ Bank were exempted from taxation. That this constituted a valid contract between the State and the bank which could not be impaired by any subsequent act of the Legislature, or by any subsequent constitutional provision. Cooley on Con. Lim. p. 257, 275 ; Article 121 of the Constitution of Louisiana of 1812 ; 3 Wall. 294 ; 1 Wall. 206 ; 30 A. 912.
    Second — That the State has no right to tax the shares of stock held by stockholders of the Citizens’ Bank, because those shares are nothing more than parts of the capital stock of the bank, which is exempt from taxation. Act No. 8 of the year 1878.
   The opinion of the court was delivered by

Marr, J.

Under the revenue act of 1878, extra session, No. 8, taxes were assessed on the “ taxable assets of the Citizens’ Bank over and above the capital stock, not including real estate,” valued at $159,828 62; and on the “ cash value of capital stock,” $636,450. The collector notified the bank to pay these taxes, amounting to $10,351 62; and the bank enjoined on the ground that, by the original charter of 1833, and the amended charter of 1836, its capital is exempt from all taxes.

The answer is that the exemption claimed is in violation of the law of equality and uniformity, which existed under the constitution of 1812, and which has been enunciated in all the subsequent constitutions : that the acts of 1833 and 1836 did not form a contract, and did not become a vested right in the bank: that they were, at most, merely a suspension, of the sovereign right of taxation, which was properly re-secured by the constitutions of 1845,1852,1868, which require all property to be taxed, and assessments to be uniform; and that the assessment of the $636,450 on stock, in the hands of the stockholders, is not in violation of the right of exemption claimed by the bank.

The judgment appealed from declared the assessment null and void ; and perpetuated the injunction.

By the original charter, act of 1833, section 29, it was provided that- “ all the profits of the bank shall be added to and made part of its capital,” except such dividends as it was authorized to make after the redemption of each series of its bonds, payable at five distinct periods. At each of these periods one fifth of the profits, if any, were to be divided among the stockholders.

By section 30 of the same act, in consideration of the cession of valuable rights to the State, or the payment of $500,000 in lieu thereof, “the said corporation shall, during its existence, be exempt, in its capital and property which it may acquire, by virtue of the provisions of this act, from all taxes to the State, or to any parish or corporation created by this State.”

By the amendatory and supplementary act of 1836, the bank was relieved of some of the obligations imposed upon it by the act of 1833 ; ■and the consideration upon which the exemption had been granted •ceased and failed. By Section four of this amendatory act, p. 17, a portion of the profits was to be paid to the State; “ and the capital of •said bank shall be exempt from any tax laid by the State, or by any parish or body politic under the authority of the State, during the continuance of its charter.”

TJnder the constitution of 1812, the Legislature had the power to ■select the objects of taxation ; and the consequent right to exempt from taxation. The exemption granted by the act of 1833 need not be considered, because it was modified and superseded by that granted by section four of the act of 1836, which was accepted by the bank ; and it Is upon this exemption that the right of the bank depends.

By its terms this exemption is limited to the capital of the bank ; ■and it covers the profits, or that part of the profits which section 29, of the act of 1833, requires to be added to and made part of the capital. No proof in the record shows that any part of the $159,828 62 is subject to taxation ; and no part of that sum can be taxed separately, if it represents capitalized earnings. If ir is the property of the bank, and it is assessed as such, it must be profits, and, therefore, capital.

There is a wide difference between the mere gratuitous exemption ■of a corporation from taxation, and an exemption granted, as in this case, upon a valuable consideration. In the first case it is a mere suspension of the sovereign right to tax all property, which the State may resume at pleasure, and which it does resume whenever it sees fit to impose, by law, a tax on the property. But where the exemption is granted upon a valuable consideration, fixed and accepted by the State, such exemption is a contract between the State and the corporation, if within the constitutional power of the Legislature. It becomes a vested right, which the Constitution of the United States forbids the 'State to violate or impair; and the organic law of Louisiana, from the formation of the State government to the present time, has respected ■and consecrated the inviolability of contracts, which is founded in common honesty, and the obligations of good faith. Cons. 1812, Art. V, ■section 20 ; 1845, Art. 109 ; 1852, Art, 105 ; 1868, Art. 110.

All the revenue acts under the constitution of 1868, prior to the act of 1878, subjected to taxation “the capital stock of all banks or corporations doing business in this State, not expressly exempted from taxation by their charters granted by this State.” Acts of 1868, p. 248 ; 1869, p. 147 ; 1870, extra session, p. 126 ; 1871, p. 104; 1872, p. 55. None of them specifically taxed the stockholders on their shares of the bank stock ; but all of them taxed “ capital invested or employed each year-in any trade or commerce.”

The judge of the district court attached importance to the fact that no tax was ever imposed on the capital of the bank ; and that this was-the first attempt to tax the shares of stock, as such, during the existence-of the bank. We think the right of the State to tax, within the restrictions of the organic law, is inherent; and where no contract has been made, binding the State not to tax, the power to tax may be exercised at any time, with respect to objects and property which had. never before been subjected to taxation. The mere failure of the State to exercise any constitutional right cannot be held to be a surrender of that right.

The act of 1878, section 1, after fixing the rate of taxation, acC valorem, proceeds, in distinct paragraphs, to enumerate the objects of taxation. The sixth paragraph specifies “ all capital * - * * except the capital stock of banks and banking associations, whose shares are taxed in the hands of the shareholders.” The seventh paragraph designates “ the property of whatever kind, of all corporations, over and above their capital stock ; ” and the eighth paragraph subjects the shares of stockholders in all banks and banking associations.” A subsequent clause of this paragraph requires the officers of these institutions to pay to the tax collectors the taxes on the shares on account of the stockholders, at the dates when the respective taxes,. State, parish, or municipal fall due.

We do not find in this act any indication of the intention of the-Legislature to tax the capital of the banks ; and it was clearly not in the power of the State to tax the capital of this bank. It is not necessary to express any opinion now as to the power of the State to require-this bank to pay the taxes due by the stockholders, without regard to the state of account between them and the bank. Numerous decisions,, of the highest authority, maintain that the exemption of the capital of a bank does not impair the right of the State to tax the shares in the hands of the stockholders ; and, without so deciding absolutely, we shall assume, for the purposes of this case, that the charter exemption of the capital of the bank does not extend to the shares in the hands of the stockholders. See McCullough, v. Maryland, 4 Wheaton ; 4 Conn. Rep. 490, 491; Union Bank v. State, 9 Yerger, 490 ; Van Allen v. Assessors, 3 Wallace, 583, 584; People v. Commissioners, 4 Wallace, 258; Bradley v. People, 4 Wallace, 462 ; Bank v. Commonwealth, 9 Wallace, 359 ; Lionberger v. Rouse, 9 Wallace, 473 ; Farrington v. Tennessee, 5 Otto, 687.

Comparing the first clause of the eighth paragraph of the act of 18Í8 with the sixth paragraph, p. 229, it will be seen that it was as-clearly the intention of the Legislature not to tax the banks on their capital as it was to tax the stockholders on their shares. The scope and meaning of the second clause of the eighth paragraph are not so obvious. “ Said shares shall be assessed at their value, after deducting from the capital stock of said banks and banking associations all eroperty otherwise assessed or exempt from taxatioN.” None of the property of this bank is exempt, except the capital; and the property of the bank, in excess of its capital, not including real estate, is assessed at a valuation of $159,828 62. If the Legislature intended that the capital of the bank, which is exempt, and the assessed value of its property, real and personal, “otherwise assessed,” should be deducted from the capital stock, what ivould remain as the basis of the valuation of the shares? The shares are not to be assessed at their market value, but at their value after the required deduction. The constitution, art, 118, prescribes that “ all property shall be taxed in proportion to its value, to be ascertained as directed by lawand this act, the first law subjecting the shares of bank stock, specifically, has directed the manner of ascertaining the value to be taxed.

The literal interpretation of this clause would leave nothing to be taxed but the excess of the value of the shares above par, and above the value of the real and personal property of the bank, not capital, otherwise assessed ; ” the practical effect of which would be to exempt the shares from taxation. If the words “ all property ” do not include the capital, but mean real and personal property, something tangible, not part of the capital, the remainder, after deducting the aggregated value of such property, would be the basis of the valuation of the shares. The several shares would be taken and estimated as so many parts of this remainder, not as subdivisions of the capital stock; and their value would be ascertained, and the tax levied with respect to this remainder, not with reference to the entire capital stock.

If the word “ property ” does not include the capital, then the words “ or exempt from taxation ” must be construed as having no meaning with respect to this bank, since no property of the bank is exempt except its capital. But this would not solve the difficulty. "Whether the capital is or is not included, and to be deducted, all the other property of the bank, “ otherwise assessed,” must be deducted. It is easy to ascertain the cash value in the market of shares representing fixed portions of the capital stock of a bank ; but this would not indicate the value of the shares after the deduction provided for. The actual value of the shares would neither be increased nor diminished by this deduction, made, in calculation only, for the purpose of taxation ; but as the Legislature has chosen to prescribe this arbitrary mode of ascertaining the value to be taxed, the assessors had no power to fix the value otherwise.

The third clause of this paragraph is : “ And said shares shall be included at such ascertained value in the valuation of the personal property of such stockholders in the assessment of taxes,” etc. The ‘meaning is clear. The value to be assessed and taxed must be ascertained in the manner presented in the preceding clause, and not otherwise.

The assessors give the names of the stockholders in the assessment roll, the number of shares owned by each, and the value §42 43 a share. These several values, carried into the column headed-“cash value of the capital stock of all banks or other corporations doing business in this State, not expressly exempted from taxation by their charters granted by this State,” are aggregated, without any deduction whatever ; and upon this aggregated value, and the §159,828 02, the tax of 13 mills is levied.

It has been suggested that, if the eighth paragraph is to be so construed as to exempt the shares of stock from taxation, it is in violation of the constitution, art. 118 ; and that the shares may be taxed as capital. However this may be, the assessment is not on capital invested or employed, and it is not necessary for us to say what might be the effect of an assessment which has not been made.

Manifestly, the assessors have estimated the cash value of the entire capital stock of the bank ; and as the assessment roll shows, they have not attempted to ascertain the value of the shares in the manner prescribed in the second clause; and thoy have not included that value in the assessment, as required by the third clause. The assessment has not been made in accordance with the law ; and it is a nullity.

The judgment appealed from is, therefore, affirmed with costs.

On Rehearing.

Spencer, J.

It will be seen by our former opinion in this case, that there is demanded of the bank taxes,

First, on §159,828 62 assessed as “ taxable assets over and above the capital stock,” and

Second, on §636,450 assessed to. the shareholders of said bank, as “ value of capital stock,” etc.

The taxes so assessed to the stockholders are demanded of the bank, under-the revenue act of 1878, which requires the banks to pay such assessments.

The bank resists both demands, on the ground that by its charter it is exempt therefrom.

1. We see no reason to doubt the conclusion that by section 4 of the act of January 30 th, 1836, the capital of the Citizens’ Bank is exempt from taxation. “ The capital of said bank shall be exempt, etc., * * * during the continuance of its charter,” is the language used. That language is broad enough to cover every thing which during its existence should enter into and make part of the capital of said bank.

By the 29th section of the original charter, “ all the profits made by said corporation shall be added to and made a part of its capital,” except a certain fraction of any excess of profits over what was necessary to pay the bonds issued by the bank. It is not pretended that any such excess of profits exists, or ever has. As a matter of fact, the bank has never declared a dividend to its shareholders. This sum of $159,828 62 is accumulated profits, which, by the charter, enter into and become part of the bank’s capital, and is, therefore, exempt.

2. The shareholders of the bank have been assessed for the value of their shares or stock, and the tax thereon is demanded of the bank. Under the view we have taken of this case, it will be unnecessary to discuss the question so much argued by counsel, as to the right of the State to tax the shares of the shareholders. The bank has no mission to raise such a question, except so far as it may be necessary to protect itself. Even iE the shareholders be liable to taxation on their shares (upon which we express no opinion), under the peculiar and exceptional nature of the charter of the Citizens’ Bank we think it cannot be forced to pay the taxes assessed to its shareholders.

To enable this bank to obtain its capital, the State loaned it bonds to the amount of several millions ; which bonds were put upon the market 'and sold by the bank ; the bank binding itself to take them up at their maturities, and to pay the interest thereon as it accrued. In order to secure the State against loss, and guarantee the payment of the bonds, the mortgages and pledges given by the stockholders to secure their subscriptions and loans were transferred to the State and the bondholders. All profits were to be capitalized, except as above mentioned. No dividends were to be distributed, except out of a small fraction of any surplus of profits, after meeting and paying' the maturing bonds and interest.

It is, we think, manifest that the bondholders are to be paid out of the profits of this bank by preference, and before any dividend can be declared or distributed to shareholders. It is not shown or pretended that the bank has in its possession any funds which it could legally distribute to its shareholders, or which it could pay to them without a manifest violation of its charter. If voluntary payments to or for account of its shareholders would violate its charter, and be a breach of its contract with the State and its bondholders, forced payments would be equally so. The authorities cited by the defendants are inapplicable to the present case. Where the capital, assets, and profits of a bank are at the disposal of its shareholders, the State may perhaps compel the bank to pay their taxes on stock. But such legislation with reference to the Citizens’ Bank would be violative of the vested rights of others, and, as we think, unconstitutional.

It is, therefore, ordered that our former decree remain undisturbed.


source: Caselaw Access Project

author: Marr, J.

license: Public Domain

text:
    No. 7732.
    Jules Lamorere vs. Succession of W. R. Cox.
    Tlie mortgage creditor has the right to proceed vico executivex, in the court of ordinary civil jurisdiction, notwithstanding the death of the mortgagor.
    Where property has been seized and is about to be sold under judicial process, and the sale is arrested by injunction, the seizure is not released; and the property still remains in legal custody, pending the injunction.
    In proceedings in rem, where the res has been seized and is held under the process of one court, no other court can interfere with, or take or dispose of it.
    The proceeding vice executives is in rem: and where the sale under the order granted by the district court has been arrested in injunction, an order of sale, granted by the probate court having jurisdiction of the succession of the deceased mortgagor, pending the injunction, is illegal, and is a nullity.
    In executory proceedings, the sale can be arrested by injunction, without bond and security, only in the cases specified in the Code of Practice, articles 739, 740.
    A succession should not be condemned in damages for an abuse by the administrator of the_ process of injunction ; and the administrator, personally liable for bis wrongful act, can not be condemned personally in a proceeding in which he is a party only in his representative capacity.
    APPEAL from tho Tenth Judicial District Court, parish of Caddo Boorman, J.
    Wise & Herndon for plaintiff and appellee:
    First — A mortgage creditor of a succession has a right to proceed by seizure and sale in a court of ordinary jurisdiction against the mortgaged property, and the probate court has no jurisdiction o-ver succession property thus proceeded against. 30 An. 323 ; 26 An. 600 ; 28 An. 622.
    Second — Where an injunction is issued by the parish judge in the absence or recusation of the district judge, the failure to show such absence or recusation by affidavit is fatal to the injunction. C. P. 128.
    Third — Again, the injunction should be dissolved because the administrator failed to give bond and security upon obtaining the writ. The order of the Court dispensed him from giving bond under authority of articles 739-40 C. P.; 30 An. 112.

      Hicks & Hicks contra :
    First — -If the demands in the two suits are contrary to, or preclude each other, the objection was waived by the motion to dissolve upon the merits. The objection was to the form, and could only have been raised by an exception in limine litis to compel the plaintiff to make choice as to which of the derpands he would proceed with. C. P. 149, 152 ; 10 M. 601; 8 An. 50 ; 3 An. 365 and 455 ; 22 An. 136; 27 An. 99 ; 7 R. 437; 6 R. 521.
    '■Second — Neither mortgage nor ordinary creditors can proceed against a succession until after the expiration of thirty days from the opening of the succession, and if any creditor proceed before that delay expires the administrator may enjoin without bond. O. P. 739-40 ; C. C. 1164,1179, 1189,1049 ; C. P. 1053-4 ; 30 An. 856 ; C. C. 2051-2-3-48 ; C. P. 159, 742 ; 31 An. 120 ; C. P. 989.
    ■Third — The action via eccecutiva .is not a real action, and courts of probate may issue it. 31 An. 57, 60, 61,141.
    Fourth — A seizure and sale cannot issue as to mortgaged property after it has been sold for taxes, until the tax-sale has been set aside by a revocatory action. 26 An. 697 29 An. 115,, 169 ; 23 An. 661; 31 An. 331 ; C. C. 2567, 2573 ; 28 An. 353; 30 An. 959, 1235 ; 19 L. 521; 15 An. 637 ; 25 An. 154.
    Fifth — A right, title, and claim in an immovable is not subject to mortgage, and hence cannot be sold under executory process. C. C. 3289; 462, 464, 471; 12 An. 464-6 ; 20 An. 109.
    'Sixth — A court cannot enforce the sale of the property of an insolvent without appraisement, against the wishes and interests of prior privilege and mortgage creditors, although the debtor waived ap-praisement. O. C. 11; 15 An. 246 ; 12 An. 271; 1 An. 340 ; 18 An. 76, 77.
    ’Seventh — The right of the administrator to administer the property of the succession can only be divested by an actual lawful seizure under the process of a court of ordinary jurisdiction. 15 An. 637 ; 31 An. 115 ; Rorer on Judicial Sales, see. 1016 ; Johnson’s Rep. 274 ; 16 Mich. 399, 403.
    Eighth — An injunction, though improvidently issued, will not be dissolved if the facts alleged show that the plaiDtiff is entitled to the writ. 4 N. S. 500 ; 2 An. 491; 23 An. 170 ; 28 An. ,170 ; 26 An. 668. •
    Ninth — The law requiring that proof of the absence of the district judge be made by affidavit is merely directory. R. S. 3195 ; C. P. 128 ; 23 An. 704 ; 30 An. 372.
    Tenth — Damages cannot be given against an administrator individually for a wrongful injunction, when it appears that he acted in good faith. 30 An. 373,1166 ; 31 An. 116.
   The opinion of the court was delivered by

Marr, J.

Lamorere, holder of a note executed by W. R, Oox,. secured by mortgage, proceeded, after the death of Oox, via executiva and the property was advertised for sale on the 18th July.

Jewell, administrator of the succession of Cox, filed an opposition on the 6th July, alleging the priority of certain privileged claims1; and' he obtained an order requiring the sheriff to retain a sufficient sum, out of the proceeds of the sale, to pay these claims. He prayed the court to rank the privileges, and to order them to be paid by preference out of the proceeds, according to law.

The sale did not take place on the 18th July ; and the property was advertised again for sale on the 17th August. On that day the administrator filed another opposition, in which he alleged that the proceeding by Lamorere was premature: that he had qualified as administrator on the 30th April, and the order of seizure and sale was granted on the 2d May ; and that the law forbids the administrator to sell the im-movables of a succession, until after the expiration of certain delays..

That the sale, by executory process, without the benefit of appraisement, would be prejudicial to the creditors of the succession ; and that the succession was1 insolvent: that the plaintiff had forfeited his right to proceed further, via executiva, because he had voluntarily countermanded the sale, advertised for the 18th July, without the consent of interested parties.

He also alleged that, after the execution of the mortgage, the whole of the mortgaged property had been sold for taxes, so that there was nothing left to Oox, during his life, or to his succession, after his death, except the right to redeem, which could not be seized and sold in the executory proceedings.

On this opposition, on the 17th August, the day fixed for the sale, an injunction was granted, without security, by the parish judge, the district judge being absent. Subsequently, in November, the administrator filed an amended opposition, in which he alleged that, since the injunction was granted and served, he had obtained from the parish judge, in the succession of Oox, an order under which he had sold all the immovables of the succession, part for cash, the remainder on twelvemonths’ credit; that he had the cash proceeds in hand, ready for distribution; that the privileged and mortgaged creditors, superior in rank to Lamorere, would consume the entire price of the immovables, and' leave nothing for him ; that his right, if any he had, to procure the sale-of the property, was merely “ a technical right, without any corresponding benefit to him or other creditors; and he has received no injury from the proceeding in opposition and injunction, or in the sale by order of the parish court.” He prayed that his opposition be main-tainted, that the order of seizure and sale be revoked, and his injunction, be perpetuated.

Plaintiff moved to dissolve the injunction, with damages, on the grounds: 1st: that the allegations of the petition, if true, were not sufficient. 2d : that the affidavit was insufficient. 3d : that there was-no affidavit of the absence of the district judge. 4th: that no bond was given.

He also filed an answer, beginning with the exception that the opposition showed no cause of action; and he alleged that the order of seizure and sale was regular, and the injunction wrongfully obtained that no tax-sale, as alleged by opponent, had ever been made ; that the property pretended to have been sold at probate sale was worth greatly more than was offered ; and that it would have brought a greater price-if it had been sold under the executory proceedings in this suit.

The administrator is appellant from the judgment dissolving his, injunction, with $100 as damages. In answer to the appeal the plaintiff prays that the judgment be so amended as to condemn the administrator, individually, to pay damages, instead of the insolvent succession, of Cox.

We must say the proceedings in this case are extraordinary. It is. too late now to question the right of the mortgage creditor, in ease of the death of the mortgagor, to proceed via executiva. The jurisprudence of nearly half a century has made this almost elementary in our law ; and we know of no decision, nor of any law, which requires the creditor to wait for the expiration of any delay, after the maturity of' his debt, before proceeding to enforce his right, whether the succession be solvent or insolvent.

It is also elementary, that the proceeding via executiva is in rem ,- and that it falls within the cognizance of the courts of ordinary civil jurisdiction.

It has long been settled, by decisions of the Supreme Court of the-United States, and of this State, that where, under proceedings in rem,. the res has been seized, and is held under the process of one court, no-other court can interfere, or take the thing, or dispose of it. The jurisdiction of the district court, which granted the order of seizure and sale, was complete ; and the order of sale subsequently granted by the probate court was illegal, and a nullity.

The allegation that the property mortgaged had been sold for taxes, instead of showing any right in the administrator to arrest the sale by injunction, simply showed that the succession was without interest to interfere.

Where a sale is about to take place under judicial process, and it is arrested by injunction, the property is not released, It still remains under seizure; and, in the event of the dissolution of the injunction the officer would proceed with the sale. We know of no authority by which a plaintiff in injunction can avail himself of the stopping of a sale to procure an order of another court, and have the property sold under it, pendente lite. We are at a loss to imagine how the administrator could have supposed that he had any such right. By his opposition of 6th July he had secured the protection of the rights of the succession, and the preference to which it was legally entitled, in the distribution of the proceeds of the sale ; and it was his business to have waited until the judgment of the court having jurisdiction of the property seized under its process had fixed the rights of the seizing creditor and of the succession, with respect to the proceeds.. We think that the administrator could not, without first having withdrawn this opposition, by leaye of the court, lawfully have demanded the arrest of the sale by injunction.

In executory proceedings, the Code of Practice, article 739, authorizes the mortgagor to obtain an injunction, for certain specified causes, without security. Not one of these causes is set up in the oppositions of the administrator in this case ; and we know of no law which authorized the injunction without security.

It is not necessary to decide now whether the parish judge had the power to grant an injunction without affidavit of the absence of the district judge, as required by the Code of Practice, article 128. We observe, however, that the district judge testified that he was absent from the State at the time this injunction was granted; and this was probably well known at Shreveport. The attempt of the administrator to wrest the property from the custody and control of the district court was in violation of the law and of the rights of the mortgage creditor. 'There was no legal ground for the injunction ; and for that reason, and the want of bond and security required bylaw in all cases of injunction, except for the causes specified in the C. P. art. 739, the injunction was properly dissolved, without reference to the other grounds set up in plaintiff’s motion.

A succession should not be condemned in damages for the wrongful act of the administrator; nor should the administrator be held personally responsible for costs and damages, where he has acted in good faith, and with the view to protect the rights of the succession. But in this case the conduct of the administrator was so utterly without legal right or foundation that we cannot consider him as acting merely in the interest of the succession, and for the protection of its rights ; and we think this a proper case for holding him personally liable, in his individual capacity, for damages caused by his abuse of the process of injunction.

But here a difficulty occurs. In no part of the proceedings has the •administrator appeared otherwise than in his representative capacity ; and no notice or warning was given him, by plea or motion, in the district court, that he would be looked to personally for the damages, nor was any such question passed upon by that court. We cannot, therefore, in this proceeding, condemn him personally; and we think the judgment against him as administrator is erroneous for the reason that we do not consider the succession liable for his wrongful act. If it were in our power we would relieve the succession of liability for any part of the costs incurred in the proceeding in injunction.

It is therefore ordered, adjudged, and decreed that so much of the judgment appealed from as condemns A. W. Jewell, in his capacity as administrator of the succession of W. R. Cox, to pay one hundred dollars damages for the wrongful suing out of the injunction in this case, be annulled, avoided, and reversed ; that the said' judgment be in all •other respects affirmed ; that the right of Jules Lamorere, appellee, to demand, by suit, of the said A. W. Jewell, personally, in his individual •capacity, all such damages as he may have sustained and be entitled to recover by reason of the injunction, be and the same is hereby specially reserved ; that the right of the heirs and creditors of the succession of W. R. Cox to oppose and controvert any claim that may be made by •said Jewell, as administrator or otherwise, for the costs, fees, and expenses incurred in said proceedings in injunction be and the same is hereby Specially reserved ; and that plaintiff appellee, Jules Lamorere, pay the costs of this appeal.


author: Manning, C. J. DeBlanc, J.

text:
    No. 6326.
    Delphine Dolhonde, Curatrix, vs. Émile Pierre Lemoine et al.
    ■Whoever shall claim a right accruing to a person whose existence is not known, must show that such person existed at the time the right accrued.
    .A fact testified to by competent witnesses, will be accepted as proved, no matter how eccentric it may argue the witnesses to be, if there be no evidence tending to impeach their credibility.
    'One who sues as curatrix of an absentee for the property of the latter, cannot receive any portion of the property until she lias given security.
    'The curatrix of au absentee has a right to accept, sue for, and recover, any legacy or inheritance which may have fallen to him.
    ^PPEAL from the Eifth District Court, parish of Orleans. Cullom,

    J. Ad. Rozier for plaintiff and appellee :
    Eirst — Unless a century has elapsed since the birth of an absentee, his death will not be presumed. 2 M. 138 ; 9 M. 257 ; 5 N. S. 668.

      Second — We are told that the plaintiff is without interest. Cui bono, then, (brief for rehearing, II.) the rendition of such a decree as is solicited by the plaintiff? Oomplaint is made that your Honors say that the property is to be administered by a curatrix until the year 1916, and is to remain as it were extra commercium, etc.
    These views were no doubt expressed hastily by the appellants, and a second afterthought would dispel the delusion. In the first place,, the presumption is that a community exists. Rev. O. 0. 2399. The revenues of the husband’s separate estate form part of the community. Glen vs. Elam, 3 A. 611.
    This of itself shows the interest of the plaintiff. Besides, in this case, especially, foreign heirs, residing and domiciled in France, cannot be-permitted to take such a position. The wife is entitled to support and maintenance. Rev. C. C. 119.
    Third — The wife of an absentee yd10 is not separated from him, and who wishes to continue to enjoy the benefit of the community, may preserve the administration of his estate. C. C. 64, 2402.
    Fourth — The forum for all parties concerned is the probate court. This is the course indicated in the case of Wilson vs. Smith, 14 A. 370, wherein it is said: “It is established that he once existed, and there is no proof of his decease,” and then follows a reference to the article 50, C. C. (old) -which requires the appointment of a curatrix.
    The custody of the property of the absentee must not be wrested from the probate court without proceedings there and establishing (if the-appellants can) the death of Lemoine; otherwise, confusion must follow. In that court all parties can be heard.
    Fifth — The probate court has, by judgment rendered, declared Lemoine to be an absentee, his property to be administered under the provisions to be found under the title Absentee. Shall that judgment be annulled in a collateral proceeding ? It is unnecessary to give again the numerous decisions quoted by the judge a quo. See transcript, p. 148.
    Sixth — One witness is sufficient to prove the existence of a person.
    Seventh — The curator of an absentee may accept a succession or inheritance in favor of the absentee. O. O. 50, Demolombe, p. 58, § 40.
    O. E. Schmidt for defendants and appellants :
    First — The'testimony oE one witness, when the testimony is full of improbable statements, is not sufficient to prove the existence of a person, when the effect of the proof will be to divest a party of property over $500 in value.
    Second — As regards the effects of absence upon the eventual rights-which may belong to the absentee, they form the subject of a dis-•tinet chapter of the Code under the same title of Absentees, viz.: of chapter 3d. The first two articles of that chapter are the following :
    Art. 76. “ Whoever shall claim a right accruing to a person whose existence is not known, shall be bound to prove that the person existed at the time when the right in question accrued, and until this be proved, his demand shall not be admitted.”
    Art. 77. “In case a succession shall bo opened in'favor of a person whose existence is not known, such inheritance shall devolve exclusively on those who would have had a concurrent right with him to the estate, or on those on whom the inheritance should have devolved if such person had not existed.”
    Under this law the right of the living brothers and sister of Eugene Lemoine, and of the children of his predeceased sister, to that portion of the succession of Blineau which he, Eugene, would be entitled to, if his existence wore known, appears unquestionable. Marcadó on the Code, vol. 1, art. 135. See, also, Proudhon, État des Personnes, 3d ed. of Yalette, pp. 263 et seq.; Toullier, vol. 1, title iv. sec. '2, Nos. 473 et seq.; Delvincourt, vol. 1, t. v. chap. 3; Laurent, vol. 2, pp. 319 to 327.
    Three decisions of the Court of Cassation, rendered on the 16th January, 1843, (DeBastignac c. Holland, DeLenoncourt c. Eoubert, DeSais-seval c. Opterre, Dalloz, Ire part. pp. 49 to 52), and referred to by Demolombe, vol. 2, No. 249, sanction the interpretation put upon .the law by Delvincourt, as regards alienations to purchasers in good faith. See, also, Chabot des Successions, sur l’art. 756, Nos. 13-15; Duvergier de la Yente, vol. 1, No. 225 ; Demolombe, vol. 2, Nos. 243 to 250.
    At the time of Mr. Blineau’s death, Eugene Lemoine was not known to exist. It has not been proved that he was either then, or at any subsequent time, in existence. Hence, the law denied him any right as legatee to Blineau’s estate, and the plaintiff who nevertheless pretends to claim the right that would have accrued to him, had his existence been known, is the one upon whom art. 76 Bev. Code throws the onus of establishing his existence, and if she fails to show it, her suit must be dismissed.
    Third — Parties regularly in possession of property under a decree regular on its face can be divested by ex parte appointment of a curator made by a probate court.
    Fourth — The wife of an absentee has no right to the revenues of his property in her possession as curatrix.
    Fifth — Before a legatee or his curator can sue any third person detaining the property bequeathed for the possession of the same, it is imperatively necessary that a delivery of the legacy should have-been made on the legal representative or heirs of the testator. C.. C. 1626, 1630; Marcado on art. 1014, Code Napoleon, vol. 4; Coin Delisle (Don. et Test, on arts. 1014, 1015, C. N. I 18); Demolombe (Don. et Test. vol. 4, £ 633); Laurent, vol. 14, l 62 ; 28 A. 603.
   The opinion of the court was delivered by

Manning, C. J.

Delphine Delhonde alleges that her husband, Eugene Lemoine, is an absentee, of whom she has been appointed cufatrix, and in that capacity sues for one fifth, of certain real estate in this city, said to be worth fifty thousand dollars, and for over two thousand dollars of' its rents. Her petition, alleging that her husband had been an absentee since 1860, was filed in court in. May 1872, and she was appointed his curatrix in the following month.

A suit for the recovery of the same property included in this suit was instituted in February 1873, and the plaintiff was nonsuited. This-action was commenced in November 1874.

. Eugene Lemoine, a native of ■ Prance, came here in 1836 when he was eighteen or twenty years old, and married the plaintiff in 1850. There was no issue of the marriage. He became insane in 1859, and was confined in the city insane asylum. After a few da,ys detention there, he was removed under order of court to the State Insane Asylum at Jackson on the application of the city attorney, supported -by the certificate of the city physician that he was affected with démence. The petition for his removal states his age to be about forty years. The judgment or order thereupon bears date May 31,1859.

On the 15th of the previous January, an order of the same kind had been made touching one Charles Bermel, alleged tobe affected with intermittent mania, and supposed to be about forty-five years old.

The superintendent of the city asylum certifies that Eugene Le-moine, a Frenchman, aged about forty-five years, was sent to the State insane asylum on June 8,1859. Lemoine’s former partner in business took him down to the steamboat at the wharf in this city en.route for that asylum in that month, and last saw him on the boat.

The records of the Jackson Asylum have the following entries :

No. 772. Ghas. Bermel, nativity France, address N. Orleans, date of admission January 30,1859.

No. 828. Eugene Lemoine alias Leopold Burmel, admitted June 9,, 1859. Discharged recovered, March 9, 1860.

In the discharge-book for 1859 also is this entry; — 828. aged 40 years, Eugene Lemoine, nativity Germany.

Lemoine’s former business partner communicated with the officers of the asylum after Lemoine’s arrival there, and sent money at different times ior his use. He was informed by them that Lemoine was getting on very well. He went up to the asylum to see him in 1859— he thinks it was the same year Lemoine was sent there — and he could nowhere be found. His description of his visit shall be given in his own words; — “'We'went around the whole place and hunted for him. We went from hill to hill, and the party who was in charge would ask me, whenever we would meet any of the inmates, if that was the man, and I would say no. After hunting as much as .we could and not finding him, I went to the office and looked into the book, and there I found his name as having been received. There was no farther record to be found. Then the superintendent said he might be hid in some corner, and if I would wait until dinner-time when the bell would be rung he had no doubt the man would come up. I waited until the bell rung, and we stood at the door, and every man that passed in I was asked if he was the man. I examined each one and he was not amongst them. After they were seated at the table I examined each man while seated, and he was not there.”

The management of the asylum at that time must have been of deplorable inefficiency. The superintendent was ignorant of the names of its inmates, and the negligent manner in which the records were kept shews the most culpable carelessness. Copious extracts from those records are in the transcript, introduced to shew a mass of blunders, and inaccuracies, and thus throw doubt upon the entries relative to-Lemoine and Bermel, and give colour to a theory that -these were one' and the same person.

The argument that the entry of the discharge of Eugene Lemoine alias Leopold Burmel as recovered, must be false as to Lemoine, because he was said by the physician to have that form of insanity called dementia, and dementia is incurable, loses force when we remember that the certificate of the physician was given only a few days after his attack, and quite too soon for any reliable opinion to be formed by any person of the precise kind of insanity into which it would develope.

Lemoine has never been seen or heard of since, save once in the autumn of 1863, and then only by one person, and that person his brother-in-law, Thiroux. The case hinges upon that event. Thiroux was at Mr. Gayarró’s house, five miles from Tangipahoa, at that time. Shortly after mid-day Thiroux was about entering the house, when he saw Lemoine walking back and forth between the house and kitchen, probably expecting, he says, to be called to dinner. He was walking with measured steps, his eyes fixed on his hands in which something not discernible was held. Thiroux had to enter a door, and when about entering, the eyes of the two men met while they were not more than four feet apart. Neither spoke. These two men were on friendly terms and were allied by marriage. Thiroux saw the husband oí his wife’s sister the last time in 1859 at his house in this city when his insanity began. He knew that he had been sent to the Jackson Asylum, and had not returned to this city, and yet when he met him not a word was ex-■ehanged. “ In passing in front of him when our eyes met, he turned his back on me, whether intentionally or not, I can’t say. I then said to myself, if you are too proud to recognise me, I am too proud to recognise you.” Thiroux did not ask any one at the house if they knew Lemoine or had seen him — did not speak of him to anybody. “He wanted to preserve his Incognito and I did the same,” is the reason he gives for this strange conduct.

Pierre Dolhonde, a brother of the plaintiff, had a house at Tangi-pahoa in 1863, and says Thiroux staid with him then, and recollects Thiroux’ mentioning his having seen Lemoine, but this witness made no inquiry about him, notwithstanding he was the husband of his own sister.

The defendants’ counsel argues that Thiroux’ conduct indicates extraordinary callousness, or a morbid proneness to take offence at a matter which no man of ordinary judgment or intelligence would construe into a slight. That is true, and Dolhonde’s conduct is not less ■strange, for he must have presumed that his sister, the wife of this unfortunate individual, would have welcomed the tidings of her husband’s restoration to health and liberty. Pour years had passed since either of these men had seen the husband of one of their nearest relatives. Humanity alone would have suggested that both of them should look after one, whose condition when they last saw him should have attracted their sympathy, and who was in those times of war evidently roaming about purposeless. Their conduct is incomprehensible, but no attempt has been made to shew that either of them is not to be believed. 'The story that each one tells borders on the incredible, but -the only reason furnished us to disbelieve them is the unnaturalness of their conduct. But we all know there is no limit to the eccentricities of men.

The property in question came from Olivier Blineau, who died in this city August 17,1863, and bequeathed it to the children of his sister, of whom Eugene Lemoine was one. Hence the effort to shew that he was alive at that time. Thiroux is the only person who pretends to have seen him after he was conveyed to the asylum in 1859, and he fixes the date of his vision at about the end of October or November 1863, ■and states that he knew of Blineau’s death then, having seen it announced in the Bee in the previous September. He knew Blineau was Eugene Lemoine’s uncle, and must have reasonably supposed that a part of his large property would fall to the hitherto impoverished husband of his wife’s sister, and yet we have seen that he did not accost .Lemoine and inquire if he knew of his uncle’s death, or say aught else •on a subject that one would suppose would have been uppermost in his mind.

In addition to these perplexities we have accounts of Lemoine’s death. His uncle Blineau, who had given directions to the asylum to supply him with necessaries at his expense, had intelligence of his death. This is stated by Mr. Carriere, the son-in-law of Blineau and one of his •executors, but how or whence the intelligence came is not stated. After Blineau’s death, Garriere applied to the plaintiff for information, and ■she shewed him a letter from the superintendent of the asylum to her, to the effect that it did not appear from the records of the asylum that Lemoine was dead. It was proved that about that time the. plaintiff put on mourning, but the proof failed to shew that it was for her husband.

The proof of Lemoine’s death fails. Either he was discharged from the asylum as recovered, as the entry in its books shews, or he escaped ■and was seen for the last time in the autumn of 1863, and thus one of the conditions imposed by the Code is fulfilled by the plaintiff; — whoever shall claim a right accruing to a person whose existence is not known, shall be bound to prove that such person existed at the time when the right in question accrued, and until this be proved, his demand shall not be admitted. Civil Code, art. 77 new No. 76.

This is a literal translation of art. 135 of the Code Napoleon, and Marcadé, commenting upon it and those which precede it (arts. 50 et ■seq. new No. 47) calls attention to the difference between certain and ■eventual rights of an absentee. The distinction is palpable between the ■right of which an absentee was possessed at the time of his disappearance, and that which accrued afterwards. The arts. 50-76, new Nos. 47-75 treat of the former, and those which follow treat of the latter. Lemoine had no property when he was sent to the asylum. In the language of the Code, he was not possessed of either movable or immovable property within this State. But his disappearance does not •date from that time. The defendants’ counsel cites Marcadé, who says, if there be any incertitude about the existence of the absentee, he shall be reputed dead, and we must act as if it were certain that he was dead. 1 JSxplic. du Code Nap. p. 339. There is no uncertainty about Le-moine’s existence late in the autumn of 1863, and the right to his share of Blineau’s bequest accrued the previous August. Marcadé continues ;— Si done la condition opposóe était, comme dans le cas du numéro précé-dent, l’existence de l’ayant droit au moment ou ce droit s’ouvrirait, la demande ne triomphera qu’autant qu’il sera prouvé que cet individu vivait encore a eette ópoque. Si e’est l’individu en personne qui vient former la demande, lui-méme sera la preuve vivante du fait. Mais si aujourd’hui il est mort ou absent, soit declaré, soit seulement prósumé en un mot, si ce n’est pas lui-méme qui agit, mais un représentant, ce-sera le cas de demander la preuve que le representó vivait encore quand le droit s’est ouvert a son proñt; jusque-la, en effet, il n’est pas établi que l’évónement qui devait róaliser son droit soit accompli. Ehbien ! c’est la, ni plus ni moins, ce que veut notre art. 135 (which we have already-said is copied in our Code) qui serait plus clairement ródigó en ces termes; Lorsqu’un droit, qui ne competait a une personne que sous la-condition qu’elle existerait encore lors de son ouverture, sera reclame par un représentant de cette personne, ce représentant ne pourra 1’exer-cer qu’en prouvant qu’a cette ópoque de l’ouverture la personne vivait. encore. Ibid. p. 341.

To the same effect are the other French commentators. Proudhon,, État des Personnes, p. 263. 1 Toullier, Nos. 473 et seq. 1 llelvincourt, c. 3. The mistake of supposing that these writers sustain, the defendants lies in the cardinal error of assuming that Lemoine’s disappearance was in 1859 or 1860 at latest, and was thus before the right, now claimed by his curatrix, accrued.

We feel bound therefore to sustain the plaintiff’s pretensions in the present proceedings under the proof, and the more so, because if Le-moine should re-appear, his rights will have been protected, whereas a, contrary decree would leave the defendants to do with the property as they willed.

The plaintiff cannot receive, as his curatrix, any portion of the property or rents until she has given security which we must presume was required when she qualified, and which can be required by those interested, if it is not already given.

Judgment affirmed.

ON REHEARING.

DeBlanc, J.

It was not proven, and we cannot presume that Eugene Lemoine is dead, and — as it stands uncontradicted — we cannot disbelieve the sworn assertion that he was alive when Blineau died •, and — nevertheless—it was on the faith of an adverse assertion, that his co-legatees claimed and were allowed the joint legacy from Blineau to them.

Presuming — as they did — that Eugene Lemoine had died before Blineau, the executors of the latter’s will did not cahse him to be represented, in the proceedings which resulted in the delivery of the deceased’s legacies, and — though he was then alive — -the share to which he was entitled under said will, passed to, and is now in the possession of his co-legatees.

His wife, who was regularly appointed and has qualified as his-curatris, brought this suit to recover the property embraced in the legacy from Blineau to him, and her demand is resisted by the co-heirs of the absentee, on several grounds, one of which has been urged but since-we granted their application for a rehearing of this cause, and it is. “ that, not being an heir, legatee or creditor of the absentee, Mrs. Le-moine is without power to accept and claim the legacy already-referred to.”

Testamentary dispositions do not fall because the instituted heir or legatee happens to be absent, when the testator’s succession is opened'. C. C. 1700,1703,1705. Absence cannot — of itself — -be considered as an incapacity to receive by donation, and the executors of Blineau’s will, whose functions were to discharge the legacies, could not — by a proceeding in which Eugéne Lemoine, who survived the testator,-was not represented, transmit to his presumptive heirs his share of the deceased’s succession.

As we are satisfied that Eugene Lemoine was seen and was alive after the death of Olivier Blineau, the legacy in his favor, which is one under a particular title, gave him, to the property bequeathed, a right which — from the death of the testator — he could have transmitted either by an act inter vivos or mortis causa, or by succession ; and that property- — his title to which never was divested — forms a part of his estate,, and was properly placed under the administration of his curatrix and wife, his partner in the matrimonial community.

C. C. 1626 (1619); Marcadé, vol. 4, p. 87, 127 ; C. C. 64, (65); 47 (50); 48, (51).

Were in true that — though the creditors of an heir can be authorized, to accept, in his name and stead, the inheritance which he renounces or refuses to accept, the wife and curatrix of an absentee is denied that, privilege, it would not follow that, on that account, the legacy to Eugene Lemoine has lapsed, and that, because of his absence — his inheritance has devolved upon those who had a concurrent right to a joint legacy..

It is, however, useless to discuss this point. The Civil Code provides “ that the curator of an absentee is bound, with respect to his administration, by the same obligations and responsibility by which tutors are bound, and the tutor may accept legacies, donations and other advantages made to his ward.” Besides, the paramount object of legislation is to protect and preserve for all — as well for an absentee as for the child who is yet in his mother’s womb — the rights which spring from its. enactments. .

C. C. 50, (53); 354, (349); 29, (29); C. P. 109.

The only doubt which induced us to re-examine this important cause, has been dispelled by the last trial, and — notwithstanding the able and remarkable defence twice presented by appellant’s counsel, we still believe that the judgment of the lower court is correct. .

It is, therefore, ordered that our former decree remain undisturbed.


author: White, J.

text:
    No. 7599.
    Aug. Thielman vs. Guéblé & Nippert et al.
    Where one ia sued eo nomine as an indorser, and evidence is received without objection tending to show the relation of principal and surety, the suretyship will be enforced if the proof thereof be adequate.
    The mention1.in the note of evidence that evidence was objected to, without statement of grounds, is not equivalent to the reservation of a bill of exception.
    At> accommodation indorser is entitled to demand protest and notice.

      A. demand-note must be protested and notice given within a reasonable delay in order to hold an indorser. What constitutes reasonable delay depends upon the facts of each presented ease, and the mere fact that the debt bears interest does not take it out of the rule.
    A. delay of four years held unreasonable.
    By the Reporter: This suit is on two demand-notes, which were protested only several years after their dates, and on which the holder contends that the payee and indorser is liable.
    ^PPEAL from the Sixth District Oourt, parish of Orleans. Bightor,

    Braughn, Buck & Dinkelspiel, Charles G-. Ogden, for plaintiff and appellee :
    The facts and circumstances attending the execution' of. the notes, and the notes themselves on their face, show that they were given as a continuing security for the repayment of a loan on which demand was always in season. Vreeland vs. Hyde, 2d Hall’s Reports, N. Y. p. 429 ; Merritt vs. Todd, 23 N. Y. p. 28.
    The payee indorsed the notes in the hands of the makers, by whom it was afterward given to plaintiff, and he is, in fact and in law, a mere surety, not entitled to protest and notice. 21 Ah. 208.; 3 An. 390 ; 6 Rob. 120 ; 1 An. 254.
    O. H. Lavillebeuvre, Carleton Hunt, for Wintz, defendant and appellant :
    The law of promissory notes payable on demand, is that the time of’ payment must depend upon the circumstances of each particular case; but the demand must be made within a reasonable time. Four or five years in this ease was' not a reasonable time. Story on Promissory Notes, § 207; Chitty on Bill-*, eh. 9, pp. 402-412; Bayley on Bills; eh. 7, <S 1, p. 324, 5th ed., also p. 232; 7 La. 119; 2 Caines, 369; 1 Cowen, 397 ; 7 Johns. 70'; 14 Vermont, 387; 5 New Hampshire, 159 ; 7 Foster, 234; 14 Calif. 458 ; 44 Maine, 467 ; 5 Rh. I. 171; Am. Bankruptcy Register for 1871, vol. 5, p. 200, re Crawford.
   The opinion of the court was delivered by

White, J.

The plaintiff sues G-uóbló & Nippert and F. Wintz, the former as makers, the latter as indorser, of two demand-notes, the one for $1500 the other $300, dated, respectively, the one June the 22d, the other June 27th, 1874, both drawn by Guébló & Nippert to the order of F. Wintz, and by him indorsed in blank. Theie was judgment below in favor of the drawers and against the indorser, the latter having alone appealed. The defense of the indorser is want of demand, protest, and notice, and discharge resulting from the bankruptcy of the drawers, and the conduct of the plaintiff in the bankruptcy proceedings. Before passing on the sufficiency of the protest and notice, it becomes necessary to consider whether the indorser was entitled to notice, the plaintiff contending that his relation being that of a surety not within the benefits of the law merchant, he was not discharged by want of reasonable protest and notice. The solution of this issue presents two questions for our determination : First, where one is sued eo nomine as an indorser, is evidence admissible to show, under- the general-relief prayer, that the defendant was not an indorser, but a surety ? If the evidence be in the record tending to that end, ought it to be considered in the absence of all formal objection to its introduction? If yes, does-the proof in the record show their relation of suretyship ; and if so, was-protest necessary ? 1st. If the person here sued as indorser was, on the-' face of the note, not a party to it, in the commercial sense of the word, we have no doubt that although sued as indorser the liability resulting from his contract, and which was patent on the face of the instrument, could be enforced despite the mistaken designation as indorser iru the pleadings. Chorn vs. Merrill et al. 9 A. 533. But such is not.th& case here, where the party sued as an indorser is, so far as can be discovered by the paper itself, nothing but a commercial indorser, the notes being drawn to his order, and by him indorsed.in blank. However, if the rule in Chorn vs. Merrill ought not to be applied to a case-where the suretyship depends on proof dehors the note, we think it has. application where the proof relied on to show the suretyship has been admitted without formal objection, and such is the case here, for none of the objections noted in the record contain such statement of grounds as to render the objections in- the note of evidence equivalent to bills ■of exception. Before considering the proof on the subject of the sure-tyship, which is conflicting, we will consider the relation of the parties •as shown by the notes and the testimony, as to which no conflict exists. The proof of that nature is, that the notes were delivered by the ■makers to the present holder in the condition in which they now are, with the indorsement of the payee on them, thus showing that they were indorsed by the payee for the benefit of the makers, and left with them for use. Did this state of facts, alone render the payee and in-■dorser so liable as surety as not' to entitle him to protest and notice ? ‘There can be no doubt, as taught by an overwhelming current of authority, going back almost to the birth of our jurisprudence, that one, ■who, not a party to commercial paper indorses it, becomes a mere surety, mot entitled to protest and notice. Weaver vs. Marvel, and authorities there cited. There can also be no doubt since Weaver vs. Mar"vel, 12 A. 517, that an accommodation indorser is quoad the holder a mere commercial indorser, entitled as such to due notice. Ball vs. Grand, 14 A. 305; Field vs. Delta Company, 21 A. 25 ; Crane, Executor, vs. Trudeau, 19 A. 308.

It is evident that the indorsement in the present case does not «come within the first rule to which we have referred, because the paper •is drawn to the order of the indorser, and he is not only, therefore, not •to be considered as a third - party to the paper, but is, on the contrary, -•a regular commercial payee, through whose blank indorsement the formal title regularly passed. We think it is also equally clear that the ■mere fact of the paper having been delivered to the holder by the •drawers does not per se create the relation of suretyship, because it ¡simply shows the indorsement to have been one for accommodation. ‘True, in Crane vs. Trudeau, the court in recognizing the settled rule «that an accommodation indorser was entitled to notice said that where the transferee of a note takes it from the maker with the indorsement ■on it the indorser was a mere surety; but, as said in Field vs. Delta ‘•Company, this statement was purely obiter, ’and was, we think, not well founded. In Weaver vs. Marvel, 12 A. 517, the notes were delivered by the maker with the indorsement, and yet, as the parties were formal •parties to the paper, the relation of accommodation indorsers was «applied. Such is the general rule. Daniel on Negotiable Instruments, vol. 1, p. 522. We have been able to find no case in the books holding that «where a note was delivered to a third party with the indorsement of the payee that that fact alone made the payee other than an accommodation indorser. There is‘testimony in the record tending to show an express agreement of suretyship on the part of the indorser. The ¡plaintiff testifies that the money was loaned on the express understanding with the indorser that he should become the surety ; the defendant, that he indorsed for the accommodation of the makers, without any ■knowledge of when or from whom the money was to be obtained. There' is nothing to discredit either, and no facts upon which we can form an estimate of probability. Under this state of facts, the burden of proof being on the plaintiff, and the written contract being in the form of a commercial indorsement, we can only follow the legal presumptions ■and conclude that the burden being on the plaintiff, he has failed to make out his case.

These matters being disposed of, we have for solution the only other question : Was the indorser discharged by want of due protest and notice? The notes, as we have seen, were demand-notes, dated June 22 and 27,1874; they were protested, and notice given on the 26th March, 1879, four years and nine months from their date. The position •of plaintiff is, first, that protest and notice are only necessary when the obligation matures, and that a demand-note only matures when payment is demanded; second, that if a reasonable time is the test, the •facts of this case show the delay to have been reasonable. 1. The universal rule, we take it, is that a demand-note must be presented within a reasonable time ; and while the text-writers and books are full of cases wherein the question of what constitutes reasonable time is discussed, we have been referred to no authority, except one case, to which we will hereafter advert, questioning the general rule that reasonable time is the criterion by which to fix the period of presentment on demand-notes. Bayley on Bills, chap. 7, sec. 2, p. 324; Story on Bills of Exchange, sec. 325; Parsons, vol. 1, p. 263; Daniel on Negotiable Instruments, sec. 610. The fact of the note bearing interest does not alter the rule, although it may be an element of fact in ascertaining what is a reasonable time. See Daniel on Negotiable Instruments, loc. cit; De Lane Co. vs. Fredick Stokes & Co. 5 Rh. I. p. 179 ; Ayer vs. Hutchins, 4 Mass. 370 ; Thurston vs McKown, 6 Ib. 528; Hemmenway vs. Stone, 7 Ib. 58 ; Field vs. Nickerson, 13 Ib. 131, 137, 138 ; Stockbridge vs. Damon, 5 Pick. 223; Thomson vs. Hale, 6 Ib. 259; Sylvester vs. Crapo, 15 Ib. 92 ; Stevens vs. Bruce, 21 Ib. 193 ; Ranger vs. Cary, 1 Met. 369 ; Am. Bank vs. Jenness, 1 Ib. 288 ; Knowles vs. Parker, 7 Ib. 31; Tucker vs. Smith, 4 Greenl. 415; Dennett vs. Wyman et al. 13 Verm. 485 ; Camp vs. Clark, Trustee, 14 Ib. 287 ; Nevins vs. Townsend, 6 Conn. 5; Wetley vs. Andrews, 3 Hill (N. Y.) R. 582 Carll vs. Brown, 2 Mich. 401.

The one case differing, as we think, from the entire current of authority is that of Merritt vs. Todd, 23 N. Y. 28 ; but it was decided by a divided court, and its correctness has been questioned. 41 N. Y. 595. However, even did its reasoning raise doubt in our minds as to the -correctness of the general commercial law, we would hesitate long before departing from the general rule of the law merchant on the author-. ity of one decision, which has been aptly said “was a departure front' every case in this country previously decided on the same point.” 41 N. Y. 595. But the reason of the conclusion in Merritt vs. Todd is not in our view satisfactory; it seems to have, in a large measure, resulted from a desire to arrive at some mope certain test than that of a reasonable time, which, in the nature of things, depends on the facts of each case. In seeking this end it establishes a principle which extends the-time for presentment to an indefinite period, and if it does not render-less certain, assuredly renders less equitable, the wise principle of reasonable delay by allowing a holder to indulge in any delay, however unreasonable. The only remaining question then is, was the delay of' nearly five years in the present case unreasonable? The parties were-both residents of this city, and in the .absence of particular or peculiar-conditions the question would seem hardly to admit of but one, an-affirmative answer. The plaintiff explains and justifies the delay by the-conduct of the indorser, who he swears made frequent promises and statements, by which he was induced to abstain from demanding payment. But on this subject we have the same conflict of testimony as that previously stated. The delay being, if unexplained, clearly unreasonable, and the testimony by which it is sought to be explained being directly contradicted, without any preponderance in either the-number or credibility of the witnesses, the only conclusion left open for our adoption is to hold that the delay of nearly five years not being explained it is evidently unreasonable, and the indorser is therefore discharged.

It is therefore ordered that the judgment below rendered against F.. Wintz be and the same is hereby reversed, and it is ordered that there be judgment against the plaintiff and in favor of Wintz, rejecting plaintiff’s dpmand with costs in both courts.

Rehearing refused.


text:
    No. 3529.
    Crescent-City Bank vs. Marie L. L. Blanque.
    "Where an act of mortgage has been consented to by an agent, authentic proof of the agent’s authority must be made to obtain executory process.
    APPEAL from the Seventh District Court, paaris-h of Orleans. CtoBens,. J.

      A. & W. Voorhies for plaintiff and appellee..

      E. Meunier for defendant and appellant.
   The opinion of the court was delivered by

White, J.

The plaintiff applied for and obtained an order for the issuance of executory process to enforce the payment of a certain note. The act of mortgage annexed to the petition was consented to by Charles De Haute de Lassus, acting as agent of the defendant; the power under which he acted was not annexed to the act of mortgage» but was referred to as deposited in the office of a designated notary. The defendant having appealed, assigns as error, patent on the face of the record, the want of authentic evidence of the authority of the agent. That such evidence was necessary, is no longer an open question. 3 N.S. 315 ; 7 N. S. 515 ; 12 R. 238 ; 2 A. 491.

It is contended that the failure to make the authentic proof of the agency has been cured by the fact that the appeal was taken, and the appeal-bond signed by De Lassus, agent. We think the proposition untenable. The question presented by the appeal is simply whether the lower court had before it the authentic proof, which was a prerequisite to the rendition of the order. Besides, granting the agency at the time of the appeal, and when the bond was signed, non constat that it existed when the act of mortgage was passed.

Judgment reversed.


author: DeBlanc, J.

text:
    No. 7786.
    Fanny Campbell vs. Christian D. Owens et al.
    An executor may cause to be made, or may himself make, tlie sale of property he administers.
    "When offered tlie second time for sale, on twelve-months credit, the property of a succession in which minors are interested need not bring either its real or appraised value, but may be validly sold for wliatover it will bring.
    "Where succession property at first offering fails to bring the required price, no additional order of court is required to authorize the administrator to re-advertise and sell on twelve-months time.
    APPEAL from the Seventh Judicial District Court, parish of Avoyelles* Yoist, J.
    Frith & Edwards for plaintiff and appellant:
    Firs&wkey;Suceession property in which minors are interested' must bring the full amount of its appraisement. 29 A. ,505, 506.
    Second — Property cannot be sold on twelve-months time, unless under and by virtue of a second order of court.
    Third — An auctioneer who is an administrator cannot act as auctioneer of the property he administers.
    A. B. Irion for defendants and appellees :
    The plaintiff contends that the second offering on a credit of twelve months could not be made without a special order of the court. The language of article 990 is almost the same as that of articles 680 and 681, providing for sheriff’s sales. The ft. fa. orders the sheriff to sell for cash. If the property does not sell for cash, he immediately re-advertises it to be sold on a credit of twelve months. He does not return his execution and get another to authorize him to sell on a credit. It seems to be the object of the law to make the same provisions for the sale of succession property. Article 990 provides that if the appraised value is not bid at the first offering, the property shall be sold on a credit of twelve months for what it will bring. It does not say that a new petition shall be filed and a new order obtained for the second sale. The whole complaint is based upon the absence of a second order, which the law does not provide for. The judgment of the lower court was in favor of defendant, and it is respectfully asked that this judgment be affirmed.
   The opinion of the court was delivered by

DeBlanc, J.

Fanny Oampbell was the fourth wife and is the surviving widow of Dr. William H. Winn, who died shortly after the 1st of November 1877, leaving two minor children bom of his last marriage.

His widow declined to qualify in the executing of his will, and— with her consent — J. J. Gondeau was appointed to execute it. He — as such — obtained an order to sell, and sold — for. $386.26 — the personal ' effects belonging to the community which had existed between the deceased and two of his wives.

After that sale, he filed a tableau, in which he carried and classified the claims which he considered as due by the succession of Winn and the last community.' In that tableau, which was partially amended and homologated on the 12th of April 1879, the surviving widow is classed — • in accordance with the homestead act — as a privileged creditor for the sum of one thousand dollars.

Pressed, as it is admitted he was, by Mrs. Winn and the other creditors, the executor procured — on the 10th of January 1879 — an order to sell the real estate, partly for cash and partly on terms. He, accordingly, advertised the intended sale, and — on the day fixed in the published notice — proceeded to offer the property at auction. Its appraised value not having been bid, he re-advertised it for sale on a credit of twelve months, and — at the second offering — adjudicated it to Mrs. Alice W. Owens for two hundred dollars.

Less than two months after that adjudication, Fanny Oampbell— acting in her own name and as tutrix of her children — brought this suit to annul it, on the grounds : ’

1. That, as Gondeau was a regular auctioneer, he could not have ■been, as he was, authorized — as executor — to advertise and sell the property referred to.

That distinction is not sustained by either the spirit or letter of the law, which provides that representatives of successions — without ex■ception — shall have the right to cause to be made, or to make themselves the sale of the property which they administer.

Rev. St. sect. 1467.

2. That, unless the purchase price of the property belonging to a ■succession, cr in which minors are interested, be equal to its actual value, its sale for less than the amount of its appraisement, is void.

This is true, but only so far as it relates to the first offering; for we ourselves said that the property may be re-advertised for sale, and — at the second offering — sold at twelve-months credit, and — then—for what it will bring.

29 A. 505.

In “ Eraser vs. Zylicz,” we held that property which had passed to, ■and fully vested in minors, could not — legally—be sold for less than its appraisement. The Code so expressly provides — art 342. Here, however, the property twice offered for sale, and sold — at the second offering — on credit and under its appraisement, belonged to an insolvent ■succession, which — at that very moment — was opened and under administration.

29 A. 536.

“ When” — as said by this court — “ an administrator has been appointed to a succession, the widow in community, and the tutrix of the minors, who are necessarily beneficiary heirs, have no right to interfere, and have nothing to claim until the debts of the estate are paid, and its administration legally terminated. The sale of the property of such an estate, for the payment of debts, is not subject to the rules and formalities prescribed for the alienation of minors’ property as such, the beneficiary heir having but a residuary interest in the estate, which can be ascertained only by a full administration.”

10 R. 509.

The Code of Practice provides, in terms which admit but of one ■construction, that — at the second offering — the property of vacant estates, of all successions accepted with the benefit of inventory, whether the heirs are minors or of age, and of all successions under administration, must be sold on credit and for what it will bring.

C. P. 990, 992.

In an amendment to her original petition, plaintiff avers that — after the first offering — the property was re-advertised for sale, and sold by the executor, without an additional order from the court, and that this was irregular. The article of the Code does not require that a new application be made to obtain a second order, and that a second commission issue to the auctioneer, to authorize him to re-advertise for sale, and to sell on>a credit of twelve months.

We believe, as defendant’s counsel, that — in such a case — the commission addressed to the auctioneer may properly be assimilated to a writ of fieri facias directed to a sheriff, and that it would be a vain thing to return either after the first offering, inasmuch as any subsequent commission could but rehearse the imperative command of the law itself, and it is that, then, the property be re-advertised for sale and1 sold for what it will bring, within a delay and on conditions which it fixes and specifies, and which — unless with the consent of every interested party — could not be changed or altered by the judge.

O. P. 990.

The charge of fraud which — in the brief and nowhere else — is made against the executor, is — not only not justified by a vestige of evidence — but repelled by every proceeding which followed his appointment. They were openly conducted, and — we think — more in the interest of the widow and children of the last marriage, than that of the creditors and of the other heirs.

If, as averred in the uncontradicted affidavit of their counsel, the' property adjudicated to defendant was worth more than one thousand' dollars, she could have purchased it in satisfaction of her own and her-children’s rights, but — it seems — forgot that “ the law favors the vigilant.”

It is, therefore, ordered, adjudged and decreed that the judgment, appealed from is affirmed with costs.


author: Spencer, J.

text:
    No. 7661.
    State ex rel. N. O. Gaslight Company vs. Mayor and Council of New Orleans.
    When the law vests a public officer with a discretion to do or not do a thing, a mandamus will not lie to control him.
    The franchise or exclusive privilege of running horse-cars through the streets of INew Orleans is properly within the meaning of section 10 of Act- Mo. 30 of 1876, and.the City Council has the right to appropriate the amount realized by salo thereof to the redemption of the bonded debt, as directed by said section.
    APPEAL from the Fourth District Court, parish of Orleans. Houston, J.
    John and W. S. Finney for relators :
    First — The claim is reduced to a judgment. The duty to provide for its payment is perfect. 29 A. 661; Dillon on Municipal Corporations, 2d ed. see. 686, p. 776, sec. 685 ; 8 Otto, 392.
    Second — A creditor fully secured should nbt be permitted to exhaust another fund to the detriment of a creditor who can only be paid out of that fund. 2 Bouvier’s Law Dictionary, p. 551, verbis Substitution in Chancery Practice; 2 Story’s Equity Jurisprudence, section 1227 ; Adam’s Equity, 272, side-paging and notes ; Aldrich vs. Cooper, 8 Yesey, Jr., 395 ; 2 McLean, C. C. B. 490 ; Trimmer vs. Bayne, 9 Yesey, Jr., 211; 2 Brockenborough’s C. C. B. 267 ; 1 Hop-kin’s Chan. Bep. 460.
    But the tenth section of the premium-bond law has no application to the money in question. That money does not proceed from the sale of property. The city does not own and never did own any property in the streets along which the right of way is granted. Streets are public things. B. C. C. 454. “ Public things are those, the property of which is vested in a whole nation, the use of which is allowed to all the members of the nation.” B. C. C. 453. Their destination cannot be changed without the consent of the sovereign. .4 Martin, 2; 9 Peters, 224 ; 2 Hennen’s Digest, pp. 1566, 1567. The city never had any property in the streets in question, and could sell none. The nature of the act done by the city in granting the franchises to the railroad is fully explained'in the case of Brown vs. Duplessis and the City, 14 An. 842.
    The selling of this right of way is not an alienation or appropriation of a portion of the public streets for private uses, any more than . the licensing of omnibuses or hacks for a specified period is an • alienation or appropriation of the public streets.” Ibid. 843. On the next page the power to grant the franchises is deduced from the following provisions in the City Charter:
    It says, “The Mayor and Common Council shall have power and ■ authority to make and pass such by-laws and ordinances as are necessary and proper, and are not contrary to the Constitution and laws of the United States or this State: first, etc. * * *; second, to regulate and make improvements to the streets, public squares, wharves, and other property. * * * Twelfth, to make regulations for the proper government of carts, drays, carriages, omnibuses, and other vehicles of every description, which run in the streets, or anywhere within the limits of the city, and to determine through what streets the same shall pass.” Bevised Statutes of 1856, sec. 51, pp. 368, 370. Vide, also, C. C. 859 ; 18 La. 284 ; Drake vs. the Hudson Biver Bailroad Company, 7 Barbour’s Supreme Court Beports, 524.

      Third — It is no answer to the mandamus, that the defendants since its-service have placed themselves in a position to evade or defy the authorities of the court. State ex rel. Carondelet Oanal and Nav.. Co. vs. the City, 30 An. 710 ; United States ex rel. Ranger vs. the City, not reported ; C. P. 843 ; High on Extraordinary Remedies, sections 572 to 576 inclusive ; United States vs. Supervisors, 2 Bis-sell, 77.
    If nothing else can be done, they must levy a sufficient tax, up to the limit permitted by the act of 1870. If they persist in contumacy, the court will persist in punishing. C. P. 308, 843.
    E. Howard McCaleb for respondents :
    First — Property under our law includes franchises. Gaslight Co. vs. Board of Assessors, 31 An.
    Second — Relators are not entitled to the mandamus. Current expenses are not entitled to special taxation.
   The opinion of the court was delivered by

Spencer, J.

Relator is a judgment creditor of the city for $113,-368 85 for balances due for gas furnished the city in the years 1875, 1876,1877, and 1878. This judgment was rendered 13th June, and duly registered according to provisions of Act 5 of the extra session of 1870, on 23d October, 1878. Act 5 aforesaid prohibits execution against the city, provides for registering judgments against it, and directs them to-be included in the next annual budget, and paid in the order of their registry out of any moneys in the treasury appropriated to that purpose.

The right of way and franchises of the City Railroad Company being about to expire, in January and July, 1880, the City Council advertised the same for sale, including the right of reversion of the equipments of said road, which belonged to the city upon paying their estimated value. The various rights, privileges, and franchises were adjudicated to the City Railroad Company itself, as the highest bidder,, for the sum of $630,000 cash, which sum was paid into the city treasury in October, 1879. Relator institutes this proceeding to compel the City. Council to include that sum in the budget for 1880, and apply it to the payment of registered judgments, including the one held by relator.. The City Council resist this demand on various grounds, one of which is, we think, good.

The tenth section of Act No. 30 of the General Assembly, approved March 26,1876, (commonly known as the Premium-Bond Act) provides : “ That no city property of any IdncL shall hereafter be sold or conveyed,, in any manner, except the proceeds be applied to the reduction of the bonded or floating debt.”

It is manifest that it is discretionary with the Council to apply the proceeds of the sale or conveyance of such property either to the bonded or floating debt; and therefore a mandamus will not lie to compel the application of the funds to one rather than to the other. When the law vests a discretion in the officer to do or not do a thing, the writ will not lie.

If, therefore, the $630,000 received from the City Railroad Company be the proceeds of the sale or conveyance of property of any kind, its-application to the redemption or reduction of the bonded debt by the Council was legal and proper, as the act leaves it discretionary to which class of debts it shall be applied.

The language used by the tenth section, “ No city property of any kind shall be sold or conveyed, in any manner, except the proceeds be applied,” etc., gives to the word property its broadest and most generic signification. It cannot be denied that the city has the right of selling or otherwise conveying the privilege or franchise of running cars-through the streets of New Orleans. 14 An. 842. That privilege or. franchise is a thing of value, and we have held that it is a proper subject of taxation. N. O. and Carrollton R. R. Co. vs. Board of Assessors, not yet reported. See, also, N. O. Gaslight Co. vs. Board of Assessors, 31 A. 476, where the authorities are referred to at length. It is equally certain that this right of running cars through the streets is vested in the city; otherwise it could not cede or sell it to another. It is therefore, we think, a right which possesses value, and, in this sense, would' fall within the meaning intended by the words “ any property.” By the sale or conveyance in question the city divested itself of this right and vested it in the City Railroad Company, quoad certain streets.

Moreover, the city possessed the right of reversion, i. e. the right of taking at an estimation all the property and equipments of the City Railroad Company, on expiration of its original contract. This right, which was evidently one of value, was also surrendered and conveyed with the franchise and right of way, and entered into and made part of the thing sold.

The manifest purpose of the tenth section of the Premium-Bond Act, was (in order to make it acceptable to the creditors) to make available for their redemption, in addition to the five-mill tax, all the means of income possessed by the city, outside of those usual and customary annual revenues immemorially applied to its current expenses. We think, therefore, that the City Council are not obliged to carry said sum of $630,000 into the budget of 1880, or apply it to the judgment or floating debt of the city ; that in using it for reduction of the bonded debt, the Council exercised a discretion vested in it by law, and not subject to control by the writ of mandamus.

The judge a quo made the mandamus peremptory, to the extent of ordering relators’ judgment and all judgments registered prior thereto •to be placed on the next annual budget, and to provide for their payment in their order, and to exhaust the power of taxation vested in the city to accomplish that end. In other respects the mandamus was •refused.

The judgment appealed from is correct, and it is affirmed with •costs.

Rehearing refused.


text:
    No. 7741.
    Palmer Dickson et al. vs. H. P. Dickson et al.
    'Tlio allegation of a defendant in her answer that she had “ advanced ” a certain sum to the plaintiff does not amount to a plea of payment.
    A plaintiff who successfully objects to the introduction of evidence to support a certain allegation in the defendant’s answer, cannot afterward ask that the allegation he considered, * as involving any admission by the defendant.
    Where a debtor executes a mortgage to his creditor to secure a certain debt, and the creditor does not accept the mortgage at the time oí its execution, and some time thereafter, before accepting the mortgage, sues to recover the debt, the debtor will be thereby released from the obligations of the inchoate mortgage.
    APPEAL from the Eighteenth Judicial District Court, parish of Bossier. Turner, J.
    J. D. Watkins for plaintiffs and appellants :
    First — We quote the following authorities : A mortgage may be given for part of an obligation, R. C. C. 3294. See, also, 3304, 3307. No written acceptance of a mortgage necessary. 8 A. 508 ; 12 A. 739.
    ¡Second — PC. D. 1001, Nos. 9 and 938, Nos. 3 and 1002, No. 16. The offer in the Leonard lease to have plaintiffs relinquish their mortgage, and their refusal, was an acceptance of the mortgage. A mortgagee’s acceptance-is presumed. Usufructuary can renounce usu-fruct at any time, as did Mrs. Dickson in face of this mortgage. Louque’s Digest, 609, No. 20; 30 A. 268. The mortgage was no novation. Louque, p. 461, Nos. 4 and 5, and p. 462, Nos, 4, 6, 8,12, 13,15.
    ‘Third — Donations must be of present property. It cannot be such matter as stated in mortgage sued on. R. C. O. 1468 and 1528. ' Obligations separately contracted may be separately enforced. 2 R. 207. H. P. Dickson’s bond as administrator was one obligation. The mortgage was another, separate. Of the mortgage the parish •court had no jurisdiction, and it could not be urged in opposition to administratrix’s account in the Boisse case.
    Fourth — It is not permitted to sue in reconvention to cancel a lease in response to a suit by a plaintiff for a sum of money, any more than to plead a petitory action against a money demand.
    L. M. Nutt and B. E. Eort for defendants and appellees:
    First — No consideration for this obligation is expressed, none alleged, no legal or valid one proved. There is no evidence of intention on part of plaintiffs to accept, until institution of this suit, 9th of June, 1879, nearly five years after date of notarial act. Acceptance should have been in a reasonable time. O. C. art. 1802.
    Assent must be made by acts excluding every other hypothesis. 12 An. 253, and authorities cited. C. C. 3411, sec. 5, 1800, 1801.
    Second — Our courts have repeatedly held that the true cause or consideration of a written instrument, authentic or under probate signature, can be shown by parol. O. O. arts. 1893, 1900; 3 An. 235 ; 4 An. 540 ; 7 An. 298.
    Parol proof is admissible to prove the character of the consideration or cause. Greenleaf, 283, 284.
    Third — The plaintiffs, by their allegation in the petition, are residents of 'Caddo, a different residence to that of defendant, their mother, and therefore, by C. P. 375, she can reconvene for any cause, although not connected with nor incidental to the main action.
    Fourth — The Rush Point place, by the evidence, is worth 12000 per year, and the amount plaintiffs pay for it is only fifty dollars per year. Then the lease is simply a donation, and void for want of. being passed before a notary and two witnesses. C. C. 1536 and 1538.
    Fifth — The pretended lease for seventy-five dollars per year of property worth one thousand dollars per year, if the court under the evidence believes it to be real, is also a virtual donation, and void for want of form. The contest as to this last lease shows the necessity for the rule in C. C. 1536 andj.538.
    ■Sixth — A donation may be revoked for ingratitude. C. C. 1559, 1560, 1561.
   The opinion of the court was delivered by

DeBlanc, J.

On. the 13th of May, 1874, one of the defendants— Mrs. H. P. Dickson — acknowledged, in a notarial act, that she was truly and justly indebted unto her children Lizzie, Emily, Palmer and Hugh, in the sum of each five thousand dollars, with interest at eight per cent from the date of the acknowledgment, and — to secure that unexplained indebtedness — consented to a mortgage on several fractions of land.

Mrs. Dickson alone appeared in, and signed the act which evidences, that obligation and the mortgage, which remained unaccepted until the-9th of January of last year, when Palmer and Hugh brought suit to enforce the obligation and foreclose the mortgage.

In her answer to that suit, Mrs. Dickson charges that she granted-the mortgage as a gift, to assist her sons Hugh and Palmer, who were-then indicted for murder, in defending themselves — that from time to-time, before and since their trial, she advanced to them the sum of ten-thousand dollars ; and that, in order to protect her daughters’ interest, against any undue advantage which might result from the granting of that mortgage, she — in the act of the 13th May — bound herself towards-them as she had done towards their brothers, who virtually repudiated-the proffered assistance, by suing her for a considerable amount, which, they claimed as coming to them from their father’s estate.

She also charges that they — Hugh and Palmer — “ must hav-e-knowm that if there was any obligation from her and to them in the pretended, mortgage, and this she denies, it could only have been for money due by her as usufructuary and administratrix of the property belonging to the-succession of her husband.”

She avers — besides—that Palmer and Hugh have caused to be recorded an instrument purporting to be a lease from her. to them of the Gumspring plantation — that said lease was never made, and — by its unauthorized recordation — she has suffered damages, to the amount of three thousand dollars — and, lastly, that — by their outrageous conduct-towards her — -they have forfeited the right to retain possession of another plantation, which she has rented to them for a nominal price.-

She, accordingly, prays that her sons’ demand be rejected, they condemned to pay her the sum of three thousand dollars-, and-that the-leases herein referred to be annulled.

,. The principal and reconventional demand were rejected at plaintiffs” costs, and they appealed.

Does defendant’s answer contain — as contended — the plea of payment ? She first alleges that from time to time, before and since the trial of her sons, she has advanced to them the sum of ten thousand) dollars, and then explains how said sum and more was advanced., but. persistently denies the validity of the obligation and mortgage sued" upon, which — she avers — were never completed) by the acceptance of either Hugh or Palmer Dickson.

Payment must be specially pleaded, and those allegations do not constitute the plea of payment. Plaintiffs’ counsel hirqself objected— on that ground — to the introduction of evidence, the object of which was to substantiate those allegations, and his- objection was properly sustained by the judge a quo. How, then, can. he or- we now consider.them as pregnant with admission, which Mrs. Dickson was not allowed to rebut ?

Eor nearly five years, the act of the 13th of May remained in the archives, a written and unaccepted proposition from the mother to her sons. What motive prompted that proposition ? The evidence, on this point, is replete with irreconcilable contradictions, and — on that account — we pass, without discussing them, every one of the declarations which were objected to.

From the others, we infer that — on or about the 13th of May 1874— Mrs. Dickson had cause to apprehend that suit would be brought to compel her to render an account of the administration of her husband’s estate. To prevent her children from joining in the contemplated litigation, she — it is probable — tendered, in settlement of their rights and share in that estate, the obligation sued upon and the mortgage by which it was secured.

The apprehended suit was brought, and plaintiffs’ sister testified “ that Mrs. Dickson told them that she had given them a mortgage, would do all she could to protect their interest, and asked them not to join the suing creditor.” They replied that they preferred to do it and risk their chances.

Hugh and Palmer swore that the consideration- of the mortgage was the then presumed, but as yet unsettled indebtedness of Mrs. Dickson, as administratrix of their father’s estate, what she and they considered but as a portion of their share in said estate. Palmer was present when the act was signed by his mother, but does not remember or think he was invited to sign it.

It was after the date of that incomplete act, that Hugh and Palmer joined the already-mentioned creditor, and instituted proceedings to hold Mrs. Dickson liable to the succession of her husband, and as ad-ministratrix, for nearly four hundred thousand dollars, and to them — if successful in their action — for an amount which would have far exceeded that fixed in defendant’s proposition, the straggling acceptance of which was notified to Mrs. Dickson, through counsel, court and sheriff, and when — we imagine — she had entirely forgotten that she had made the proposition.

“ The acceptance needs not be made by the same act, or in point of time, immediately after the proposition ; if made at any time before the person who offers or promises has changed his mind, or may reasonably be presumed to have done so, it is sufficient.” '

C. C. 1804, (1798).

In the proceedings alluded to, Palmer and Hugh obtained judgment against Mrs. Dickson for the full share inherited by them from their father — and, inasmuch as they themselves swore that the consideration of the mortgage was a portion of that share, they cannot justly hope to obtain an additional judgment for that portion.

They could not have told their mother : “We accept your proposition, but on our own condition, and it is that — in a suit which we are about to bring against you — we shall obtain less than you áre willing to give. Until the determination of that suit, you alone shall be bound by that conditionally-accepted proposition.” In reason — as in law — their action liberated their mother from her intended and inchoate engagement.

As to the reconventional demand — if maintainable under defendant’s pleadings — it is not sustained by the evidence adduced on the trial.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is affirmed with costs.

Rehearing refused.