text:
    No. 47.
    The State ex rel. Emily E. Griffin vs. the City of Shreveport.
    Municipal corporations have no inherent powers of taxation, but can lax only as the State has thought proper to permit.
    The City of Shreveport by its Charter can only levy taxes for the ensuing year, after having made and published a budget of its contingent expenditures for said ensuing year. The debt sued upon'm this case having been contracted by the City of Shreveport under the existence of its Charter, the Eelatrix is not entitled to a Mandamus to compel the levy or a tax in any other manner or at any other time than as provided for in said Charter.
    4 PPEAL from the First Judicial District Court, parish of Caddo. Taylor, J.

      Land & Land and Alexander & Blanchard for Plaintiff and Appellee:
    Pirst — The writ of mandamus is a writ of right; the mandamus proceeding a purely civil one; and it need not be brought in the name of the State, or signed by the Attorney General or District Attorney. C. P. 840; 29 An., 793; 30 An. 1312; High’s Ex. Legal Demedies, sections 3, 4 and 430; 33 An. 510.
    Second — Article 209 oí the Constitution of 1879, which limits the power of municipal taxation to ten mills on the dollar, cannot affect the rights oí antecedent contract creditors of the City of Shreveport. They are protected by the Constitution of the United States, which forbids States to pass laws impairing the obligations oí contracts. 32 An. 726, 884; 35 An. 79 : also 31 An. 765; 32 An. 409.
    Wm, A. Seay, City Attorney, for Defendant and Appellant;
    Pirst — The order in a proceeding by mandamus must issue in the name of the State. And this order, in the meaning of the Code of Practice and of the reported decisions of the Supreme Court, is the interlocutory order and not the peremptory mandate issued after the trial of the case.
    Second — And even it the order referred to is the peremptory mandate, the District Court must issue it in the name of the State. The Supreme Court, after final hearing on appeal, cannot supply the deficiency.

      Third — Nor is it necessary to take advantage of this omission by an exception, either dilatory or peremptory. If it lacks any of its essential requisites, it is a nullity which is fatal to its effectiveness.
    Tourth — The indebtedness of the defendant, a municipal corporation, is provided for by annual budget, duly published, on which, taxation to meet it is based. The city, not being authorized by law to meet any indebtedness in any other manner, cannot be compelled to do so by the courts. Relator should have asked for a mtmdcmius to extend his claim on the budget.
    Rifth — To grant this order would entail on the defendant a greater tax than ten mills on the dollar, which is forbidden by the Constitution of 1879.
   The. opinion of the Court was delivered by

Fenner, J.

The relator, Mrs. E. E. Griffin, is the owner of a judgment against the city of Shreveport for the sum of $25,000, with eight per cent interest from August 21st, 1872, and five per cent thereon as attorney’s fees, subject to a credit of $2500 collected on account. Her judgment was rendered on December 20,1873. It is founded on a contract which was entered into on August 21st, 1872. Execution was issued on the judgment and returned nulla bona.

It is averred that it was the duty of the niayor and trustees of defendant to provide for the payment of said judgment by levying and collecting a tax to pay the same, which duty they have failed and refused to perform, notwithstanding due demand made upon them by relator.

Further averring that she is without other legal remedy, she prays for a writ of mandatnus commanding the mayor, trustees and controller of the city to proceed to assess, levy and collect a tax of a certain per centum per annum on all the taxable property of the city sufficient to pay the amount of her said judgment.

The defenses of the respondents are twofold, viz:

1st. That to comply with relator’s demand would require the levy of more than ten mills on the dollar in violation of Art. 209 of the Constitution — it being admitted that a tax of ten mills had already been levied for the current year, which is required for, and has been appropriated to, the necessary expenses of the city.

Inasmuch as relator’s judgment is based on a contract, her rights are governed by the law in force at the time when the contract was entered into, and are not affected by the subsequent constitutional provision.

As admitted by counsel for-respondents, this is no longer an open question in the jurisprudence of this Court. 32 An. 726,884; 33 An. 79.

By the charter of Shreveport of 1871, in force at the date of relator’s contract, as well as by the charter of 1878, the city possessed the power of levying taxes not exceeding one and three-quarters per cent. So far as necessary for the performance of valid contracts entered into prior to the adoption of the Constitution of 1879, and so far only, this power of taxation remains in force.

The relator abandoned her claim to any tax above the said limit, and the judge a quo limited the mandamus accordingly to three-quarters of one per cent over and above the one per cent tax already levied.

2d. Respondents object that, “under the charter of the city of Shreveport, a budget of the expenses of the ensuing year is made up and published, and that the plaintiff should have demanded to have her claim entered on the same, it being incompetent for her to obtain a levy of a tax in any other manner and at any other time.”

Section 12 of the charter here referred to is in the following words:

“The council shall, once in every twelve months, before fixing and deciding upon the amount of taxes and licenses to be assessed and imposed for the ensuing year, cause to be made out a detailed estimate, exhibiting the various items of liabilities and expenditures, including the requisite amounts of contingent expenses during said year, and shall cause the same to be published at least ten days in the official journal of the city. And such rate of taxation, not exceeding one dollar and seventy-five cents on every one hundred dollars of valuation, shall thereafter be fixed and assessed as, together with other revenues of the city, may be necessary to meet said estimated liabilities and expenditures. The adoption of said detailed estimate shall be considered as the appropriation of the amount therein stated, for the purposes therein stated, and the city auditor of public accounts shall not audit, nor shall the assessor and collector pay, draw or sign any check upon the fiscal agent therefor, for any claims, unless an appropriation therefor has been duly made in accordance with this act.” Acts 1878, p. 288-9.

The preceding article of the charter, defining the powers of the council, contains the following:

Ninth. To every year lay an equal and uniform tax upon all real and personal property in said city for the ensuing year, not to exceed for any one year one and three-quarters per centum of the assessed value thereof, which said taxes shall be due and payable from the first day of February to the 20th of June inclusive.”

Identically the same provisions existed in the charter of 1871 in force at the date of relator’s contract.

The sole mandate or power of the city council to levy taxes is derived from the foregoing provisions of law. An analysis of them makes it self-evident that the power conferred is subject to the following express limitations, viz.:

1st. The tax can only be levied in one year, for the ensuing year.

2d. Before levying any tax for the ensuing year, it is made an absolute condition precedent that the council should make out its “ budget” or detailed estimate of liabilities and expenses, and cause the same to be published for ten days in the official journal.

3d. The council can levy no greater rate of tax (even within the. limit of one and three-quarters per cent.) than is necessary, with the other revenues of the city, to meet the expenditures and liabilities set down in the budget.

4th. To guard against any possible violation of these provisions, it is further provided that the city auditor shall not audit, nor the assessor and'collector pay, draw or sign any check upon the fiscal agent, for any claim which has not been included in the budget aforesaid.

It would be, in our judgment, waste of time to discuss distinctions between mandatary and directory or discretionary powers. Nothing is better settled than that municipal corporations possess no inherent powers of taxation, but can tax only as the State has thought proper to permit. Whatever authority municipal officers assume to exercise they must be able to show a warrant for in the words'of the legislative grant.' All acts beyond the scope of the powers granted are void, and reasonable doubts concerning the existence of the power are ordinarily resolved by the courts against the power. No powers are implied except such as are indispensable for self-preservation, or for the accomplishment of the declared purposes or objects of the corporation. When the legislative grant of powers expressly defines the conditions under which alone they may be exercised, it is necessary to the valid exercise of such powers that those conditions should be complied with. These principles are well established by common jurisprudence. Dillon on Mun. Corp. § 55 et seq.; Cooley on Taxation, p. 209 et seq.; City vs. Phillipi, 9 An. 44; Angel & Ames on Corp., chap. 9, Sec. 1; Civil Code, 433, 445.

To write out of the statute the plain and unambiguous provisions which we have heretofore cited or to recognize the right of the municipal officers to disregard them, would be nothing less than the judicial repeal of a law.

The writ of mandamus is not primarily provided as a mode of executing judgments.

The office of the writ, as it affects public officers, is simply to compel them to perform plain ministerial duties imposed upon them by law. ■

The relator here asks, under a petition filed in June, 1881, and the judgment appealed from, rendered in July, 1881, grants, a mandamus ordering the respondents “ to proceed forthwith to assess, levy and collect a tax of § of one per centum upon the assessment rolls of said city for the year 1881, to pay and satisfy relator’s judgment,” &c.

Inasmuch as relator’s judgment was not included in the budget; and inasmuch as the council has no power to levy for the year 1881, a greater rate of tax than is necessary to meet the expenditures and liabilities set down in said budget, it is clear that it is, not only, not the duty, but not within the power, of said council to levy such tax. The Court cannot confer any power, or impose any duty, upon these officers which the law does not itself confer and impose.

Another important practical consideration which precludes the relief here sought and illustrates the absolute necessity of recognizing the budget as the essential basis of taxation, is the following:

The right to the levy of three-quarters per cent above the ten mills tax which has been devoted to the necessary expenses of the city, is a right common to all contract creditors standing in like case with the relator and which he cannot invoke and exhaust for his exclusive benefit. The entire three-quarters per cent would not be sufficient to pay even one-half of his judgment. If he may obtain the levy of this tax to be devoted to the payment of his judgment, any other contract creditor would have the same right, and thus, by successive mandamuses, the city might be compelled to levy taxes far in excess of its possible powers under its charters, past or present.

Indeed, although the judgment in the present case, if executed, would exhaust the power of taxation of the city, we have actually before us another case in which the city is commanded to levy another tax for satisfaction of another contract creditor.

It is evident that justice, as well as the law, requires that the creditors must look to the budget as the place where their plaims may be marshaled in concurso, as a basis for the levy of the entire tax to which they are entitled and for the equitable distribution of the proceeds thereof amongst them.

The right of the relator, and the corresponding duty of the municipal officers, is that his claim should be placed upon the budget of this and succeeding years, only in common with the claims of other creditors in like case, and that the council should levy taxes within the limits of his right to an amount sufficient to satisfy said claims.

A similar course was pursued in the case of State ex rel. Folsom Bros. vs. Mayor, &c., 32 An. 712, though that case passed off on different grounds..

Upon the methods to be pursued for the enforcement of this right, we have no occasion to pass in this case. It is sufficient to say that the relief sought in the present case, is not supportable under the law.

The performance of no duty in connection with the budget is demanded, — nor does the record show that any demand was made upon the respondents to place relator’s claim upon the budget. What might be the effect of a refusal after timely demand on the remedy of relator is not now before us.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered and decreed that the mandamus prayed for be denied at relator’s costs in both courts.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 70.
    Florsheim Bros. vs. Z. Howell. John Phelps & Co., Intervenors.
    Under Act No. 66 of tlie Legislature of 1874 (Sec. 3), cotton bought at Shreveport and unpaid for by the purchaser, but shipped by him for New Orleans, is in the possession of the consignee the moment the bill of lading is given to tbe common carrier for transmission, and said consignee has, from that time, a pledge upon the cotton, superior to the vendor & privilege.
    A PPEAL from the Eirst Judicial District Court, parish of Caddo. Bk. Taylor. J.

      Wise & Herndon for Plaintiffs and Appellants.

      Land & Land for the Intervenors and Appellees :
    3?irst — The vendor’s privilege on movables gives him a preference if the property still remains in the possession of the purchaser. C. C. 3227. If the purchaser is divested of his possession, the privilege is lost. II it. 140; 5 An. 348; 8 An. 45; 12 An. 233, 235.
    Second — A shipment of cotton to a merchant in New Orleans in accordance with Sec. 3, of Act jSTo. 66 of 1874, divests the possession and the control of the shipper, and vests in the consignee a perfect pledge with the right to appropriate the proceeds of the sale to the payment of the amount due such consignee. *
    Third — It follows that plaintiffs’ vendor’s privilege was lost by the consignment to intervenors, who, as pledgees, are entitled to the possession and proceeds of the cotton sequestered.
   The opinion of the Court was delivered by

Todd, J.

On the 7th of January, 1881, the plaintiffs sold to the defendant 28 bales of cotton, and delivered them the next day.

The defendant placed the cotton on board the “ Kate Kinney,” then lying at Shreveport, and consigned it to John Phelps & Co., of New Orleans.

Bills of lading were signed and- issued by the agent of the steamer on the same day; one of these bills, the shipper’s bill, was delivered te. the defendant, and the other, for the consignee, was retained by the boat.

On the 10th of January, the plaintiffs demanded of defendant the payment of the price of the cotton, who answered that he was “ broke,” and unable to pay. Thereupon, they caused the cotton to be sequestered and taken from the boat, setting forth in their petition the sale and delivery of the cotton, the non-payment of the price, and asking judgment for the same, with the recognition of the vendor’s privilege.

This is the suit before us. John Phelps & Co. intervened in the suit, and first claimed a privilege on the cotton for advances made to the defendant by them, as factors. Subsequently, by an amendment to their petition, the intervenors' alleged that, at the time of its seizure by the plaintiffs, they were in the possession of the cotton as pledgees — the pledge being claimed under Sec. 3 of Act No. 66 of 1874, and also denied expressly that the cotton was subject to th’e vendor’s privilege asserted by the plaintiffs.

The defendant made no defence, and the contest is entirely between the plaintiffs and intervenors upon the issues thus presented by tlm pleadings. There was judgment for the intervenors, and the plaintiffs have appealed.

Art. 3227 of the Civil Code provides : “ He who has sold to another any movable property, which is not paid for, has a preference on the price of his property, over the other creditors of the purchaser, whether the sale was made on a credit or without, if the property still remains in the possession of the purchaser.”

And article 3229: “ If the sale was not made on credit, the seller may even claim back the things in kind, which were thus sold, as long as they are in possession of the purchaser; provided the claim for restitution be made within eight days of the delivery at farthest.”

The privilege or preference accorded by these articles to the vendor of movable property, "is, by their terms, effective only so long as the thing remains in the possession of the purchaser.

Was this cotton in the possession of the purchaser, the defendant in this case, when it was seized by the plaintiffs ? On the contrary, the intervenors say it was not, but that it was in their possession. The solution of the question thus presented depends upon the proper construction of the section of the Act of 1874, referred to, relied on by intervenors. The section reads as follows :

“ That all merchants, factors and others wtm may have a general balance of account, or any sum of money due them by any consignor or other person sending them cotton, sugar or other agricultural products for sale at the port of New Orleans, or at any other town in the State, shall have a pledge upon all such property consigned or sent to them by ship, vessel, railroad or other carrier from the time the bill of lading or receipt therefor by the carrier, is deposited in the mail or given to the carrier for transmission, which pledge shall be perfect, with the right of sale of said property which shall be fully vested in said consignee, with the right to appropriate the proceeds of sale to the amount due consignee ; provided that nothing herein shall be so construed as to defeat or lessen the privilege of the laborers and landlords in this State for wages and rent as now existing by law.”

This section, and the entire act of which it is a part, makes striking and radical changes in the law on the subject of pledge, as it existed prior to the passage of the act.

The existence of the debt described, the consignment of the property, the mailing to the consignee or delivery to the carrier of a bill of lading, by the terms of the statute — independent of any agreement or even volition of the parties — creates the pledge, and, in the language of the act, a perfect pledge. What is meant by a perfect pledge ? Evidently a pledge possessing all the elements and legal effects imparted'to it by the general law. One of the essential ingredients of it under the general law is thus declared by the Code, Art. 3152 ; “It is essential to the contract of pledge that the creditor be put in possession of the thing given to him in pledge, and consequently that actual delivery of it be made to him, unless he has possession of it already by some other right.”

It is not denied that the defendant was owing the intervenors a debt of the kind described in the statute for more than the value of the cotton, and as stated, it was consigned to them, a bill of lading retained by the carrier, and, if it was a perfect pledge, as the act declares it, then eo instante, upon the concurrence of the facts stated, by operation of law, the possession of the cotton was given to the intervenors as pledgees. If the pledgees were thus in possession, the possession of the defendant, as purchaser of the cotton,-ceased when that of the intervenors began. And, if the cotton was out of the defendant’s possession — the purchaser’s 'possession — and in the legal possession of others, then, under the law we have cited, the plaintiffs, as vendors, could no longer exercise their privilege against it, and their seizure was consequently unwarranted. This conclusion is inevitable under the terms of the law.

Much of the argument of plaintiffs’ counsel is devoted to establishing the superior right of their clients to the cotton over the intervenors under the laws and settled jurisprudence of the State, before the existence of the Act of 1874 referred to; which authorities have been carefully reviewed and elaborately discussed in the able opinion of our learned brother of the District Court, found in the record. We deem it unnecessary to determine that question. It is really not before us. It came up properly under the original pleadings, where the rights of the parties under conflicting privileges were solely at issue; but that issue was supplanted by the graver one presented when the statutory pledge was set up by the intervenors in opposition to the vendor’s privilege of the plaintiffs. Upon this issue the case must be decided, and our conclusion on the point has been stated.

It is ingenuously argued by the plaintiffs’ counsel that there never was a sale of the cotton, that it was only an inchoate sale, an agreement to sell, to be complete only when the cotton was reweighed and the money paid, and that, by the custom of merchants at Shreveport, a purchaser is allowed three, days within which to comply with these requirements. It is needless to say that a mere custom cannot prevail against the positive provisions of the law ; but this suggestion of no .sale is contradicted by the theory of the suit, which is to enforce the seller’s privilege, by the allegations of the petition and averments of the affidavit for the sequestration, which expressly declare that the cotton was sold and delivered, and, apart from the pleadings, this fact is confirmed by the evidence.

The conclusion stated was reached by us only after a careful study of the subject, the maturest deliberation, and under a full sense of the responsibility which a determination of the question involved. The law on which the decision rests may well be termed a hard law, but that law, hard as it is, is thus written, and written in language so plain as to leave no room for doubt or evasion. We have no power to change it; it is only our province to expound it.' It may well be said that it savors of spoliation, where the merchant who bought cotton or other agricultural products with his money, or the faritoer who produced it by his toil, loses or is deprived of his property without compensation for the benefit of one, it may be, who has never paid a dollar on it, or given other consideration for it. If the law is unjust, or operates harshly, if it be deemed class legislation, the remedy is in the legislative department of the government. We may deplore the existence of a bad law, but as long as it exists it must be observed ; and should its enforcement-by the judiciary entail hardship — as we know in this instance is the case — we can only repeat what is said above, “ that it is so written.”

Judgment affirmed.


author: Levy, J.

text:
    No. 45.
    Manlius Boon vs. B. F. O’Neal.
    The verdict of the jury, even as to the facts of the case, has no controlling influence upon the conclusions of this Court. It is its province and duty to reverse such verdict, as -well as the judgment of an inferior court, when a careful examination of the record and review of the evidence show that the jury was mistaken as to the facts. To hold otherwise would be defeating the object of the law by which this Court is to review the facts as well as the law of the case.
    APPEAL from the Second Judicial District Court, parish of Bossier. Drew, J.
    • Land & Land for Plaintiff and Appellant.

      J. A. Snider for Defendant and Appellee.
   The opinion of the Court was delivered by

Levy, J.

Plaintiff brings this suit to annul the sale to him by defendant of one hundred acres of land, and also to recover the value of certain improvements placed by him on these and other lands, these improvememts being part of the consideration for the sale of the one hundred acres, the value of which enured to defendant and were allowed to him by judgment of this Court in the case of Person vs. O’Neal, decided in 32 An. 228.

The facts upon which the claim is based, may be briefly stated as .follows: O’Neal became, the purchaser at tax sale in June, 1873, of certain lands belonging to Person, and in J une, 1875, sold them to the defendant Boon; shortly subsequent to Boon’s purchase, he reconveyed to O’Neal the lands thus acquired. The consideration of the last mentioned sale, (made without warranty), of the 8th of June, 1875, was the sum of $2850, on credit terms, for which notes were given by the vendee. The lands Sold are thus described in said act of sale: “ The S. £ of section 14, S. E. £ of section 15, and fractional part of section 22, east of ■Red River, and S. W. fraction of section 23 of township 17, range 13, in said parish of Bossier, containing 605 acres, with all improvements thereon and appurtenances thereto belonging,” being the same bought by O’Neal and Scanland at tax collector’s sale on 25th June, 1873. On the 25th of June, 1875, another act of sale was passed by O’Neal in, favor of Boon, for the same lands, and same consideration, and containing certain stipulations not in the act of June, 1875.

On 'the 21st of February, 1877, Boon executed an act of reconveyance, under private signature, to 0)Neal of the following lands: “ S. £ of section 14, fractional S. E. £ section 15, fractional part of section 22, and the fractional section 23, all in township 17 of range 13, east of Red River,” the consideration of this reconveyance being therein set forth as, “ a title, without warranty, to one hundred acres of land described in a deed of sale made this day by B. F. O’Neal to Manlius Boon, and the surrender of the notes made by Manlius Boon to B. F. O’Neal for the purchase of the Person place.” On the same day, to wit: February 21st, 1877, O’Neal conveyed to Boon “ one hundred acres of land, described as follows: N. £ of S. E. £ of section-24 and N. £ of the N. £ of S. W. £ of section 14, in township 17 of range 13, east of Red River, without warranty of title.”

It appears that the improvements made upon the Person lands, the-value of which was claimed of O’Neal by Person, were by judgment of the Supreme Court, 32 An. 228, allowed as claimed, but the Court decreed them extinguished or compensated by Person’s claim for rents,, revenues and damages, the one claim offsetting the other.

The. evidence satisfies our minds that the improvements thus allowed were made by Boon during his occupancy of the lands and they enured to the benefit of O’Neal in the manner stated by us.

Plaintiff contends that, when he made the reconveyance to defendant, which carried with it the improvements made by him on the lands, and for which O’Neal was paid by the compensation above alluded to, it was of the consideration of one hundred acres of land fronting on Red River; that plaintiff, not only by his statements and assurances created that impression upon his mind, and thus induced the reconveyance, but that he went upon the land and pointed out the same to him; that the land which was conveyed to him by O’Neal as part of the consideration of the reconveyance, was almost entirely worthless for purposes of cultivation, and that he has never occupied or used it, and that the act was conceived by defendant with fraudulent intent, and was accepted by him in error caused by fraudulent and wilfully deceptive representations made to him by defendant. Hence, he claims the annulment of the act of sale to him and that he recover from defendant the value of the improvements made by him on the lands reconveyed to defendant.

Plaintiff is shown by the record to be a man, if not of marked ignorance, at least, far inferior in intelligence to defendant, who is an astute business man, who has held important public offices in his parish and whose position was, perhaps, well calculated to inspire confidence and respect.

As to the pointing out of the hundred acres of land, and actual designation of its locality on the premises themselves by defendant, the plaintiff swears positively that this was done by defendant, while the latter just as positively denies that he did so, and declares that he was unacquainted with the boundaries, if not with the locality of the land described in the act. No direct impeachment of the credibility of either of these witnesses is made, and where there is such a conflict as appears here, we are constrained in order to satisfy our minds as to the facts, to weigh all the circumstances surrounding the case, apply the test of plain practical common sense, consider the motives of the opposing parties, their conduct relative to the affair, and thus reach a correct conclusion and solve the disputed question.

O’Neal nowhere and at no time, as appears in the record, states that he told or intimated to Boon that the lands (the hundred acres) which he proposed to convey to him were swamp or wholly uncleared lands; it does seem, that in view of the then existing and antecedent relations between him and Boon, the continued occupancy of Boon of the land fronting the river, the improvements made by Boon upon this (lower) tract as well as on the upper or larger one, which by the reconveyance enured to defendant’s benefit and advantage, and which he availed himself of in his contest with Person, the swamp land described in the act was a wholly inadequate consideration, together with the surrender of the notes given by Boon for land, of the title to which he was so dubious that he was never willing to warrant it. Reviewing all the evidence, we are convinced there was a serious error of fact to the prejudice of the plaintiff, induced by defendant which justifies us in annulling and setting aside the act as prayed for by plaintiff.

Inasmuch, then, as the consideration for the reconveyance is based upon the sale of the one hundred acres of land erroneously conveyed to and accepted by Boon, it must be set aside, and the principles of justice and equity require that there should be a restitution of the rights which were, under the circumstances detailed, surrendered by Boon, and he should be compensated fairly therefor.

The defendant, O’Neal, has himself judicially proven and established the value of the improvements on the lands reconveyed to him, and by his own valuation, solemnly fixed, he must be bound. It will be borne in mind, however, that the notes which Boon had given for the purchase price and the claim for rent were surrendered and relinquished by O’Neal, and that, too, without remuneration to O’Neal for the use and occupation of the property, and for the wood cut thereon. And while Boon is entitled to recover the value of the improvements, which defendant claimed of Person, it is but just and fair that this amount should be credited with the rent of the land and value of the wood cut and disposed of by Boon.

We think, that the plaintiff is entitled to the sum of two thousand nine hundred dollars for the improvements, and from this should be deducted the sum of two thousand dollars for the rent of the lands during their use and occupancy by him, and three hundred_dollars for the wood cut by him, leaving a balance of six hundred dollars due by the defendant to plaintiff.

It is urgently contended by defendant’s counsel that the verdict of the jury being in favor of him, this should have a controlling influence upon us in regard to the facts upon which the verdict was based. We have high respect for the opinion of the jury, but when on our examination of the record and careful review of the evidence, our conclusions differ from those of the jury, it is alike our province and duty to adopt ours rather than theirs. As we' must pass upon the facts as well as the law of the case, the right of appeal from judgments rendered on the verdict of a jury, would be a vain and barren one, if we are to be controlled by such verdict. There is no greater reflection cast upon a jury by overruling its verdict, than by reversing the judgment of an inferior judge, and it must be admitted that infallibility attaches to the decisions of no earthly tribunal, and even “ Homer sometimes nods.”

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court, herein, be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered by the lower court, it is now ordered, adjudged and decreed that the act of February 21st, 1877, from O’Neal to Boon, for the lands therein described, be annulled and avoided, and that the plaintiff do have and recover judgment from, the defendant, in the sum of six hundred dollars with legal interest from judicial demand, viz: from the 13th day of April, 1880, with costs in the District Court and" costs of this appeal.


author: Poché, J.

text:
    No. 55.
    Barbara Beopple vs. Bolin P. Green.
    The wife having obtained a judgment of separation of bed and board against the husband and a decree ordering the sale of the Community property for the purpose of a partition of the proceeds between them, — and the husband having enjoined the execution of the decree and failed in his injunction suit; qucere: can the wife, in the partition of said proceeds, claim rent of the Community property enjoyed by the husband during the injunction, and her Counsel fees ? Held, that she cannot and must prefer such claim on the injunction bond.
    APPEAL from the Second Judicial District Court, parish of Webster. Drew, J.

      J. D. & J. T. Watkins for Plaintiff and Appellant:
    The nse and hire of property and interest on money and damages to community property had, used and done by the husband exclusively during the wife’s suit for divorce and, until final partition, should he allowed the wife in settlement of accounts in mating the partition. H. E. 733, Ho. 3; E. C. C. 1349; 5 An. 561; 15 An. 350; 23 An. 351 ; 28 An. 362; E. C. C. 1350.
    Improvements and rents to be settled in the partition. 4 An. 8; 1st H. S. 405; E. C. C. 1355, Ho, 4; 2 An. 88; H. E. 1099, Ho. 2; 14 An. 740-750; 15 An. 350 ; H. E. 1093, Ho. 1.
    13 E. 279. Partnership in a boat was dissolved, the boat burned, the insurance money was settled in partition.
    Story on Partnership, Sec. 349, note 3 and 329. The mutual charges compensate each other. 2 A». 412 ; 5 An. 208 ; 2 An. 87.

      O. JE. McDonald for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

In a suit brought by Barbara Beopple against her husband, Bolin P. Green, judgment was rendered in her favor, separating her “ mensa et thoro ” from her husband, recognizing some real estate purchased by her husband in the name of a third person, as belonging to their community, and ordering a sale of all the community property for the purpose of effecting a partition of the same.

The execution of that judgment was enjoined by Green on the ground of nullity of the judgment, and his injunction was finally dissolved by a decree of this Court, rendered in the case entitled Bolin P. Green vs. J. W. Reagan, sheriff, reported in 32 Annual, page 974 In that decree the right of Barbara Beopple to proceed against Green and his surety on the injunction bond, for all damages caused her by his illegal injunction was specially reserved.

Under the original judgment of the District Court, which thus became executory, a sale was then effected of all the community property, which according to an inventory made under the order of the Court, amounted to $1001 55, which is the amount to be distributed in this controversy.

After the sale the court ordered the partition of the proceeds of the community property to be made by the clerk in his capacity of notary public.

At the partition Barbara Beopple, through counsel, urged that Green should be charged, to credit of the community, with the following items :

Eor rent of the community land, occupied by himself pending the litigation in 1879-80.........................................$500

For use and hire, during the same time, of community mules and horses...................................................... 200

For the value of a mule and other movable property, inventoried, but not produced at the sale................................. 137

For costs of first advertisement of sale enjoined.................. 3

Amounting together to..................................$840

One half of which was to be charged to her credit in partition, say.............................................................$420

And she urged that he should also be charged, to her credit, with all the costs, including attorney’s fees, incurred in his injunction suit, amounting to $164 50, and which, added to $420, as her share in the community credits, swelled her claim up to $584 50.

The notary, contending that, under his mandate, his powers were confined to a partition of the proceeds of the community property, and did not extend to the settlement of claims and counter-claims of the parties, rejected plaintiff’s claim, in toto. Subsequently, before the court, in opposing the motion of defendant to homologate the report or partition of the notary, plaintiff urged her claim, herein above detailed, and on trial the court homologated the report, after amending it so as to allow credit to the community for the value of the community movable property 'not produced at the sale by defendant, and also the item for advertisement of the sale enjoined.

From this judgment plaintiff has appealed.

Defendant also complains of the judgment appealed from in so far as it condemns him to account for the estimated value of movable property listed in the inventory and not produced by him on the day of sale, and for costs of advertising the sale enjoined, but as he has failed to appeal from the judgment or to pray by motion for an amendment, his complaint cannot be considered by this Court.

The proposition presented for our solution is, therefore : Whether, under the pleadings, presenting first, the issue of separation from bed and board, and secondly, the settlement and partition of the community property, the court could consider and pass upon the claims of the wife for rent of community lands, for the use and hire of community live stock which remained in the possession of the husband pending the litigation growing out of his injunction, and for the costs incurred in that suit.

The mere statement of the proposition carries with it a refutation of plaintiff’s theory in maintaining the affirmative of the question.

The rights which she urges in her opposition do not grow out or form part of, and are not essentially connected with, the community assets, or the settlement and partition of the same. Those rights, if any she has, grow out of the injunction sued out by her husband, and of the delay which he thus illegally interposed, in the way of her recovery and enjoyment of her share in the community property, and of the expenses entailed upon her in the maintenance and for the execution of her judgment, and on the very rights which were contemplated in that part of our decree in the injunction suit, wherein we specially reserved her right to proceed against the principal and his surety on the injunction bond.

Until the sale of the community property was effected, and the indivisión thus ended, the title to that property remained vested in the dissolved community, as undivided property in the joint possession of the two spouses, neither of whom could be charged for rent or hire, by reason of his occupancy, use or enjoyment of the same or any part thereof.

If, as charged by the wife, who became the purchaser of the community lands, she was deprived for two years of the enjoyment of her property, through the tortuous acts of her husband, and thus lost the rents of two years, which she fixes at five hundred dollars, and sustained other losses through his wrongful injunction, she has a cause of action against him on those grounds, but the damages which she may thus recover, and which are manifestly in futuro, could not possibly be included in the present assets of the community now under partition.

We have examined and carefully considered the numerous authorities cited and relied upon by plaintiff’s counsel, in support of his position, and we find that they are not applicable to the issue presented in this case.

In our opinion, these authorities go no further than to establish and re-affirm that well known rule of our jurisprudence, which requires that, in all partitions, whether of successions or o”f other undivided ownership, each party must first collate, or account for, to the mass, all debts which he may owe, resulting either from contract or for receipts in excess of other co-owners or co-heirs, or for damage or injury done by his fault-to the property held in indivisión.

In this case, the rights urged by plaintiff grow out of alleged torts of her husband, through which she was hindered and delayed from sooner effecting a sale of the community property, and from the immediate enjoyment of her purchases at such sale. These rights are personal to herself, and must be enforced in a direct and distinct action ; and the District Judge correctly excluded them from this case.

We find no error in the judgment appealed from, and it is, therefore, affirmed at appellant’s costs.


author: Fenner, J.

text:
    No. 48.
    L. B. Watkins vs. J. D. Cawthon.
    A. party is not estopped by bis pleading when the averment was made -without knowledge oí the real iaet underlying the controversy, — especially when that real fact was within the knowledge of the adverse party.
    The sheriff who, in execution of a writ of attachment, leaves a sum of money in the hands of a third person, and takes the latter’s receipt for the same, constitutes said third person his keeper of the money seized, and is himself, to all intents and purposes, in the legal possession thereof.
    Upon dissolution of the attachment, the sheriff must account to the defendant for said sum of money as ii he bad actually received and held it under the writ.
    APPEAL from tlie First Judicial District Court, parish of Caddo. Taylor, J.

      Looney & Mstner, for Plaintiff and Appellant:
    In point of fact, the effect of the keeper’s receipt was to perfect the sheriff’s seizure and • return; and the possession of the money seized by the sheriff was continued through the keeper.
    It was the legal duty of the sheriff to seize, attach and take the money into his possession and retain the same, subject to the order of the 'court issuing the writ. C. P. 256, 257, 657, 659; 22 An. 208; 26 An. 688, Scott vs. Davis; 6 An. 551, Page vs. Generes; 6 An. 563, Stockton vs. Downey; 6 R. 347, Gobeau vs. RT. O. & V. R. R. Co.
    The sheriff may appoint a keeper, for whose acts he is responsible. 12 An. 280, ‘Whann vs. Hufty, sheriff; 12 R. 25, Smith vs. Burwick; 13 An. 604, Stille vs. Beauchamp; C. P. 657; 659.
    The fact that the attached debtor is suffered to remain in possession of the property seized, does not affect the validity of the seizure. 12 B. 35, Smith vs. Burwick; 13‘An. 604, Stille vs. Beauchamp; 28 An. 854, Paul vs. Hoss; 5 M. 268; C. P. 100; 20 An. 573; 21 Wallace 123, Watson vs. Bondurant.
    The seizure would be equally good if the property were left in the hands of the attaching creditor, as in case at bar.
    A valid seizure of an incorporeal right may he made by notifying tbe person in possession of that right. 5 An. 538, Harris vs. Bank of Mobile; 9 An. 311, Kelson vs. Simpson ; C. P. 647; C.C. 2481.
    But that line of anthority is not applicable in case at bar, because the money itself was attached, and by J. B. Durham acknowledged to have been received from the sheriff; and the sole and specific object to he attained by the attachment was to defeat the claim of J. D. Patton, and to effect that object a paper seizure was insufficient.
    The sheriff is primaHly liable to the defendant in attachment, when the writ has been dissolved, for the restoration of the property seized by him in the same state it was when first seized. 2 An. 802, Whitton vs. Jones; 17 La. 579, 583, Parish vs. Hosey; C. C. 2937, 2980, 2981; C. P. 283; 28 An. 584, Paul vs. Hoss; 5 M. 268; C. P. 257.
    With regard to judicial estoppel, the rule for our guidance is found in 22 An. 368, Abbott vs. Wilbur; 13 Howard, 336; 30 An. 1309, Chaffe vs. Morgan; 13 An. 601, Wilson vs. Curtis; 8 An. 462, Judice vs. Kerr; 2 La. 551, Millaudon vs. Allard; Bigelow on Estoppel, p. 293, et seq.¡ 3 B. 48, Kohn vs. Marsh; 15 La. 363, Shipman & Ayers vs. Haynes.
    These authorities are to the effect that whenever a litigant has, to his own advantage, or to the injury of his adversary, asserted judicially what is false, he must he forever forbidden to unfold, for his own advantage, the truth of the matter. 30 An. 50, Montague vs. Weil.
    The sheriff is hut a judicial guardian, a servaut of the court, an agent of the law. His possession is that of the law; his dominiou over the thing seized is that of the law. C. C. 2979, 2980; 28 An. 584, Paul vs. Hoss.
    The defendant cannot he heard to dispute or prove the falsity of his official return, or the receipt of the keeper, which he accepted, and which is an essential part of his return, and upon which, in part, the plaintiff predicates his right to recover. 3 B. 48, Kohn vs. Marsh; 15 La. 363.
    The plea of estoppel by record is closely allied to the plea of res judicata, and is only conclusive on those pleadings actually passed upon by the court. Bigelow on Estoppel, pp 7 and 8; 28 An. 625, Jacobs vs. Erire; 23 An. 647, Morgan vff. Kinnard; 23 An. 669, Ware vs. Morris.

      Alexander <& Blanchard and Zand & Zand for Defendant and Appellee:
    Eirst — Defendant pleaded estoppel against plaintiff, and objected to all bis evidence as contradictory of a solemn judicial allegation made by him and his transferee, in a'previous suit. The exception was well taken, and plaintiff being thus effectually muzzled in the inception of the trial, his case falls.
    Second — The court a qua, without passing on the objection, concluded to receive plaintiff’s evidence subject to the objection made. When defendant came to offer his evidence, plaintiff pleaded estoppel against him, and objected to all his evidence as tending to contradict a return made by defendant as sheriff. This objection is not tenable, because, viewed in tbe light most favorable to plaintiff, it is estoppel against estoppel which sets the matter at large. Bigelow, p. 262; 30 An. 1309.
    Third — On the facts and evidence, the l^w and equity of the case are clearly with defendant-
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff alleges substantially that, on or about January 2d, 1878, J. D. Cawthon, then sheriff of the parish of Caddo, did seize and take into his possession the sum of $1809 48, the property of Lisso & Scheen, in execution of a writ of attachment issued in the case of J. B. Durham & Co. vs. Lisso & Scheen; that said attachment was dissolved by judgment of the Supreme Court; that the effect of such dissolution was to place the money so seized and possessed by said sheriff at the control of Lisso & Scheen or their assignees; that Lisso & Scheen had validly transferred to him (plaintiff) the said fund, whereby he became the owner thereof; that due notice of the dissolution of the attachment and of the assignment had been given to the defendant Cawthon, and demand made for payment, which had been refused; wherefore he demands judgment against defendant for the amount.

The defendant denies that he, as sheriff, under the writ of attachment referred to, did seize and take into his possession the said sum of $1809 48, or any sum of' money whatever belonging to Lisso & Scheen. Leaving out of view, for the nonce, the additional allegations of his answer explanatory of his actual proceedings and tending to negative the charge of seizure and possession, the true issue presented is: seizure and possession vel non.

The following are the facts:

John B. Durham & Co. were creditors of Lisso & Scheen, and had brought suit against them in the District Court of Red River parish for $1257. Durham & Co. had received from one J. D. Patton a consignment of sixty bales of cotton which they had sold and held the proceeds, the $1809 48 here in controversy, at the credit of Patton. Receiving information that the said cotton and proceeds were really the property of Lisso & Scheen, for whom Patton was acting merely as agent, Durham & Co. caused a writ of attachment to issue in their suit against Lisso & Scheen addressed to the. sheriff of Caddo parish.

The following is the return upon this writ :

“ Received the within writ of attachment January 2d, 1879, and on the same day posted a certified copy hereof at the court-house door in the city of Shreveport, parish of Caddo, and also attached the following described property as per inventory hereto annexed.
[Signed] “ I. W. Pickens, Deputy Sheriff.
“ John B. Durham & Co. vs. Lisso & Scheen, No. 243, D. C., Red River parish, La. The following is a correct inventory of the property attached in the above entitled suit: Eighteen hundred and nine and forty-eight hundredths dollars ($1,809 48) in hands of John B. Durham & Co.
[Signed] I. W. Pickens,
[Attest:] “ Deputy Sheriff.
“ Thomas Phillies,
“ A. D. Land.”

At the same time he took from John B. Durham the following receipt, viz.:

“ $1809 18. Received'of I. W. Pickens, Deputy Sheriff of the parish of Caddo, $1809 18 attached by him in my hands, in the suit of Durham & Co. vs. Lisso & Scheen, No. 213 on the docket of the District Court of the parish of Red River, which I agree to hold and safely keep subject to the order of the sheriff of the parish of Caddo. Shreveport, La., Jan. 2,1879.
(Signed) “ J. B. Durham.”

The connection of Patton with this fund may now be dismissed entirely from view. It was admitted by Durham & Co., by Lisso & Scheen, and by Patton himself, that he had no interest therein, and that the cotton and its proceeds belonged to Lisso & Scheen; and there exists no controversy on this subject.

The above receipt of Durham, as keeper for the sheriff, though taken and held by the latter, was not annexed to his return or filed in court.

Acting upon the face of the sheriff’s return and in ignorance of the existence of the keeper’s receipt, Lisso & Scheen, through the present plaintiff as their counsel, moved to dissolve the attachment upon various grounds, including amongst others, the ground “that there was no actual' seizure and taking in possession of the property, as the law directs.” From a judgment dissolving the attachment an appeal was taken to this Court, and the opinion and decree here rendered shows that the judgment was affirmed without any allusion to the above ground, and upon the sole ground of the insufficiency of the surety on the attachment bond.

Subsequently, John Chaffe & Co., another creditor of Lisso & Scheen, sought to attach this fund in the hands of Durham & Co. by garnishment proceedings. To the interrogatories addressed to them as garnishees, Durham and his co-partner, Howell, answered that they had no property or credits belonging to Lisso & Scheen or either of them, and further, referring to this particular fund, they answered that it had been attached in the suit of Durham & Co. vs. Lisso & Scheen, and “ is in the possession and subject to the order of the sheriff of Caddo parish.” Upon a traverse, of these answers by Chaffe & Co., proof was administered of the actual seizure and possession of the sheriff, and the receipt of Durham as keeper for the sheriff was, for the first time, produced. This was in May, 1880, about a year after the filing of the motion to dissolve the attachment of Lisso & Scheen.

Lisso & Scheen transferred this fund to the plaintiff on February 10th, 1880. The decree of the Supreme Court became final in March, 1880.

We shall now dispose of the questions of law presented on the foregoing facts, which we regard as the only essential ones, 'though we shall refer to others urged by defendant, in disposing of the law points.

I.

It is urged that plaintiff is estopped from asserting or proving that there was an actual seizing and taking in possession of the fund in controversy by the defendant, as sheriff, because, in the motion to dissolve the attachment, the assignors of the plaintiff, through him as their counsel, had judicially admitted and alleged that there was no such actual seizure and taking in possession.

Leaving out of view the serious question as to whether the defendant has the right to avail himself of the estoppel pleaded, considering that he was no party to the suit in which the pleading was filed, that he knew the truth of the matter, that he was in no manner misled, and-that his position was in no way altered thereby — the estoppel cannot avail against the plaintiff, because, at the time he filed the pleading relied on, he and his assignors were ignorant of the vital fact of the existence of the keeper’s receipt.

The rubric of the law of estoppel under which the one here pleaded falls, is that of inconsistent positions, holding a party who has an election between several inconsistent pleas or causes of action, to abide by that one which he first adopts, and prohibiting him from contradicting in an action solemn judicial admissions and allegations which he has made in the same or a different action. Bigelow, Estoppel, Introduction, p. 68; Id., pp. 503 et seq.

Of this estoppel, it is a vital element that the position or pleading should have been taken or made with knowledge of the facts. It was never held that a person should be estopped from proving the truth when discovered, because, while ignorant of the truth, he had averred the contrary. Still less could such an estoppel avail one who, all the time, knew the truth, and whose own action had been the cause of his opponent’s ignorance thereof. Such was the case here. Defendant held the keeper’s receipt in his own possession. He failed to annex it to his return and file it in court, and was thus responsible for plaintiff’s ignorance of it.

The estoppel cannot be maintained.

II.

We are of opinion that the sheriff’s return and keeper’s receipt, taken together, conclusively establish an actual seizure and taking possession by the sheriff. To hold the contrary, would justly astound the bar and the officers of our courts, with whom this has been, from the date of the Codes, an ordinary mode of effecting seizures.

The right of the sheriff to appoint a keeper of the thing séized by him, and the perfect equivalency of his possession through such keeper to his possession through a deputy, or even to his own personal and physical possession, have never been disputed, that we are aware, and have been frequently recognized by this Court. C. P. 283, 657, 659; 12 R. 25; 8 An. 370; 13 An. 604; 22 An. 525; 28 An. 854; 6 R. 100.

The fact that the sheriff did not actually take the money from Durham, and then hand it back to him as keeper, surely cannot affect the case. Such a proceeding was unnecessary and would have been absurd. The purpose was accomplished when, by the receipt Durham acknowledged the sheriff’s possession and the sheriff consented that Durham should hold for him as his keeper. That, legally and actually, transferred the possession from Durham, as an. individual, to the sheriff, through Durham as keeper.

Nor is the case affected by the fact that the sheriff acted under instructions of the counsel of plaintiff in writ. The quéstion here is not what the sheriff was instructed to do, but what he did. Ve hold that he did actually seize and take possession through, Durham, as keeper. If he appointed Durham keeper under instructions of plaintiff’s counsel, that might limit his responsibility to the plaintiff in the writ, in case of malversation of the fund by Durham, but it certainly could not affect his responsibility to- other persons.

So far as the present plaintiff is concerned, we are compelled to hold that defendant must respond precisely as he would if he were in personal possession of the fund.

III.

The effect of the dissolution of the attachment was unquestionably to place the property attached and in the possession of the sheriff, as we have just held, at the disposition of the owner thereof.

The sheriff is a judicial guardian, and, by the very terms of the Code, is bound to preserve the effects seized, and to produce them either for the discharge of the person who has seized them for sale, or to the person against whom the execution was levied, in case the seizure he raised.” C. C. 2980.

There is no dispute as to the ownership of Lisso & Scheen, and of plaintiff, as their assignee. > And, indeed, no one contests his right to claim his property except this sheriff, who has certainly no claim to it.

The fact that Durham is insolvent does not affect the case. The sheriff is responsible for his keeper. C. P. 657, 659; 8 An. 370; 12 An. 280; 12 R. 25; 13 An. 604.

IV.

It is urged that Durham & Co., and not Lisso & Scheen, are the parties entitled to reclaim this fund, on the authority of the case of Gay vs. Eaton, 28 An. 2, where it was held that on the dissolution of the sequestration, “the property must be returned to the possession of the party from whom it was taken.” Physically, it is true, the fund was in the possession of Durham & Co. at the date of the seizure; but they held possession, not as owners, but merely as agents for the owners, and they surrendered the fund to the sheriff as the property of' Lisso & Scheen. They can have no possible claim to the fund now, nor do they urge any, and defendant has no right to champion their rights. In the case cited above, the property was sequestered in the possession of merchants who held it as agents for the intervenors. The Court ordered it to be restored to the owners, not to the merchants. So must we hold here.

We have nothing to do with counter-claims which Durham & Co. had against Lisso & Scheen at the date of' seizure. They have conclusively admitted the ownership of Lisso & Scheen of this fund, and they are not before us urging any claim upon it. Defendant held this property as the property of Lisso & Scheen, and his right to hold it having terminated, he must return it to the owner.

V.

In this Court, for the first time, it is urged that plaintiff must be sent away as the prohibited purchaser of a litigious right. The title to the fund conveyed to plaintiff was not in litigation. We are aware of no law which prevents the sale or purchase of property by any person, because a creditor of the seller claims judicially a privilege upon the thing sold. The purchaser simply takes, subject to the privilege if maintained.

In conclusion, we would say that, where the law is clear, equity cannot avail; but we are unable to feel the force of the equity so strongly urged by counsel for the defendant. His case is simply the common one of loss by reason of the fault or failure of one’s agents — a loss to the risk of which a sheriff subjects himself every time he employs a keeper. It was at his option to have trusted Durham as keeper, or to have demanded the turning over of the fund to himself, and, in case of refusal, to have let the case stand on a simple notice of seizure. Having effected an actual seizure and accepted possession through his duly appointed keeper; having thereby placed it beyond the power of Lisso & Sheen to collect the fund; and having placed it in the power of the attaching creditor to plead the sheriff’s actual possession and seizure in bar to the attachments of other creditors — he must abide the consequences, and cannot now shift his position. It would, indeed, be a gross inequity to plaintiff, if, having accepted this fund in payment for services rendered to an insolvent, upon the faith of the ownership of Lisso & Scheen and of the record made by the sheriff himself, showing its safety in his own responsible keeping, he should now'find his demand upon the sheriff rejected and himself referred to an insolvent keeper.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff and against the defendant, condemning the said defendant to pay to plaintiff the sum of eighteen hundred and nine 18-100 dollars, with legal interest from March 3d, 1880, and all costs of suit, and that defendant and appellee pay costs of this appeal.

Justice Levy recuses himself.


text:
    No. 44.

    The State ex rel. Thomas M. Gilmer vs. The Judges of the Court of Appeals.
    This case not coming within the appellate jurisdiction oí the Supreme Court, and the Court of Appeals having neither usurped jurisdiction nor refused to perform any duty imposed upon it by law, this Court will not use in the premises its supervisory power under Article 90 of the Constitution. Previous Decisions affirmed.
    ApPLICATION for a writ of Mandamus.

      F. G. Thatcher and Land & Land for the Relator.
   The opinion of the Court was delivered by

Todd, J.

The relator obtained before the late parish court of the parish of Caddo a judgment against Charles Gamble et al. for more than 5200 exclusive of interest.

An appeal was taken from this judgment to the District Court of said parish, which appeal was pending before said court when the present Constitution was adopted. After the adoption of the Constitution, by order of the court to which the appeal had been made, and in compliance with the provisions of the Constitution, the case was transferred to the Court of Appeals of the First Circuit, over which the Hon. A. B. George and the Hon. John C. Moncure preside.

The Court of Appeals set aside the judgment of the parish court, and remanded the case to to the District Court for the parish of Caddo for trial de novo. The judge of this Court recused himself, and the case was referred to a judge ad hoc, an attorney at law, who rendered judgment in favor of the defendants. The relator, plaintiff in the suit, appealed from this judgment to the Court of Appeals, and the judgment was affirmed, the judges of said court disagreeing, which had the effect of affirming the judgment of the District Court.

The relator alleging that all the proceedings before the Court of. Appeals were null and void, beginning with, the order remanding the ease for trial before the District' Court, and that the latter court was without jurisdiction to try the case, and the original judgment of the parish court was in full force and effect, applies to this Court for a mandamus to compel the judges of the Court of Appeals to try the appeal from the parish court as it was .originally presented to them regardless of their action and that of the District Court in the case.

-The judges of the Court of Appeals answered the application, and alleged substantially that they took jurisdiction.in the case, and in the exercise of that jurisdiction remanded the cause for trial to the District Court, which had superseded the parish court, and was the proper court to try the case. They further averred that the application for a mandamus came too late; that it should have been resorted to before the case was remanded to the District Court, or at least before the case was tried by that court. Much more is contained in this answer which it is unnecessary to notice.

The act of the judges of the Court of Appeals in remanding the case to' the District Court for trial, was a recognition of the appeal as before them, and a judicial act showing an exercise of their jurisdiction of the case. Had they refused to entertain jurisdiction or take any action in the case, it would have been a proper case for a mandamus. The judges may have committed an error in remanding the case, and, perhaps, should have tried the appeal as it came from the parish court, but any error committed by the Court of Appeals in a matter within its discretion and jurisdiction we cannot review, having no appellate jurisdiction of the proceeding's of that court, but can only, under the supervisory powers conferred by the Constitution, compel such courts to take jurisdiction where they have improperly refused to do so, and correct their acts proceeding from an usurpation of authority.

In this case, the court did take jurisdiction, for, without taking jurisdiction, they could not have remanded the case for trial before the District Court. If this jurisdiction was legitimately exercised, it matters not what consequences have flowed from the action or proceeding of the court, it is beyond our power to correct them. The court had the power and the right to remand the case for trial, a right that is often exercised by the Supreme Court, when in its discretion it is thought the ends of justice require it. Within the limit of its jurisdiction, the Court of Appeals has an equal right. In remanding the case to the District Court, there was no usurpation of authority: it was the court that had’superseded the parish court, and the court and only court that had jurisdiction to try the case de novo. State ex rel. Bonnet vs Samuel Mathews, judge ad hoc, 33 An. 103.

It is well to repeat here what this Court said in the casa of State ex rel. City of New Orleans vs. The Judge of the Sixth District Court, as illustrating the authority of this Court-in matters of this'kind and. showing our want of power to correct' errors and evils such as are complained of in the present case:

“In the exercise of the power (supervisory power) in the cases above indicated, we wish it distinctly understood that wé shall respect the independence of inferior courts in the determination of all questions confided to their judicial discretion, and shall not usurp merely appellate jurisdiction not. conferred upon us by .the,Constitution. It will be useless to apply to”us for the exercise of this power over inferior courts •not subject to our immediate appellate jurisdiction, in any case, except where there is a clear usurpation of power not conferred by law, or a refusal to perform some duty plainly imposed by law, and which they have no discretion to refuse, and when there is an entire absence of other adequate remedy.”

The facts of this cáse, it is clear, do not bring it within the rule so plainly announced.

The mandamus is,' therefore, refused.


author: Levy, J. Poché, J.

text:
    No. 71.
    The Life Association of America vs. Simon Levy. John R. Fell, Receiver, Intervenor.
    A Corporation created under the laws of a sister State, has the right to sue and stand in judgment in the Courts of Louisiana.
    When such a Corporation has been decreed insolvent and an assignee or trustee appointed to it, under the laws of, and in, the State where it was created, the assignee or trustee so appointed has the right to sue for the assets of the insolvent Corporation and stand in judgment in the Courts of Louisiana.
    The agencies and sub-agencies established in this State by that Corporation, under its charter, are revoked by4ts insolvency, and the assets in the hands of such agencies and sub-agencies should he delivered to the assignee or trustee. t

    .The investment of, the profits of Insurance Copap^niQs.jn loan,s secured by mortgage, cannot be considered as banking business and is not .prohibited by law.
    The laws of other States can have no «extra-territorial effect in this.
    A member of a Corporation, wh° i§ a creditor thereof, has the same right as any other creditor, to sue the Corporation and attach its property.
    The foreign assignee or trustee of an insolvent Corporation, suing a debtor in this State, cannot* urge against .the latter’s reconventional demand, that the same is equivalent, to pleading compensation against an insolvency.
    APPEAL from the First Judicial District Oourt, parish of Caddo. Taylor, J. ’ 11

      Wise & Herndon for Plaintiff and Appellant:
    I'irst^ — A foreign- córpóration, unless prohibited by special statute, may make contracts within the scope of its authority in another State than that of its. creation.. 7 L. 31;.4 It. 517; 13 Pefers, 521. . • . .

      Second — Foreign corporations may institute suits in courts of this State, and in case of insolvency be represented by assignee or receiver. Angelí & Ames on Corporations, p, 395 and notes; 2 A. 430.
    Third — The lending of money on note and mortgage security is not banking business. Angelí & Ames, p. 241.
    Fourth — As to defendant’s reconventional demand. The polioy held by defendant did not become a debt of the insurance company until its insolvency.
    To compensate against an insolvent, the indebtedness must precede the insolvency of the company. 15 A. 165; 23 A. 36.

      Looney & Elstner and Land & Land for Defendant and Appellee:
    First — A. corporation cannot make a contract for the loan of money or take security for it, unless the power is expressly given or necessarily incident to the powers granted. North Biver Insnrance Company vs. Lawrence, 3 Wend, 483.
    There is no implied power in a corporation to loan its funds, unless it be a bank. Therefore, an insurance company prohibited from discounting paper, could not lend money on a note and take interest in advance. Daniel on Negotiable Instruments, 384.
    In the case at bar tbe note sued on was given for money loaned by the plaintiff (insurance company) at eleven per cent, paid in advance.
    Second — The plaintiff, being a non-resident, and the intervenor, a resident of New Orleans, defendant can reconvene for any cause, although not connected with nor incidental to the main action. C. £. 375; 5 A. 150; 10 A. 98; 12 A. 257; 16 A. 250; 27 A. 642.
    Third — The insolvent laws of Missouri can have no extra-territorial effect. 5 A. 273; 15 A. 110. Our home creditors are entitled to any and all remedies known to the laws of Louisiana against absentees. They may attach the property of the foreign insolvent. 15 A. 110 ; Story, Conflict of Laws, Sec. 420-1. Beconventional demands for any cause are a remedy allowed by express law in sneh a case as the one at bar.
    Fourth — This is not a case of compensation. But if it were, it is well settled in jurisprudence that the creditor of an insolvent or of a succession may maintain the plea, when the indehtehness was contracted prior to the insolvency or to the death. 15 A. 165; 1 N. S. 483; 10 A. 404; 27 A. 695.
    Fifth — A member of á corporation, who is a creditor, has the same right as any other creditor to secure the payment of his demands by attachment or otherwise. 7 B. 513; 5 N. S. 327.
    Sixth — Defendant is entitled to the rescission of the contracts made with plaintiff and to recover what he has paid. C. C. 1912.
    «71 L. Hargrove for the Intervenor and Appellant:
    In a conflict of laws it is often matter of doubt which should prevail, and in such a case the court will prefer the laws of its own country to that of a stranger. 5 N. S. 587; 16 Louisiana, 433.
    Compensation cannot take place unless the debts exist simultaneously between debtor and creditor and not where the reconventional demand has become a claim (unliquidated) since filing of plaintiff’s suit.
    Aforeign corporation having property rights and credit in Louisiana shall he administered in Louisiana as though it were a succession of an individual having property in no other country or State.
    The property of a hand of outlaws would be liable to any creditor of the hand in the same manner that the property of a legal corporation wo*ld be.
   The opinion of the Court was delivered by

Levy, J.

On the 9th of April, 1878, the Life Association of America, á duly incorporated company; domiciled in St. Louis, Missouri, and having a department in Louisiana and Texas and a branch or district at Shreveport, Louisiana, instituted this suit against the defendant, praying for judgment against Simon Levy in the sum of three thousand dollars, with eight per cent per annum interest thereon from February 23d, 1875, alleged to be due plaintiff by defendant on the latter’s promissory note for that sum, dated February 23d, 1872, due twelve months after date to the order of Robert H. Lindsay president (said Lindsay being at that time president of the Shreveport branch of said company), with eight per cent per annum interest from maturity, interest having been paid on said note by said Levy to February 23d, 1875. Plaintiff sets forth that said note was secured by special mortgage on certain property in the city of Shreveport, described in the mortgage, and he prayed for the recognition and enforcement of said mortgage. Before answering, defendant filed exceptions to said action, on the grounds: 1st. That plaintiff brings this action as a “ foreign corporation,” and he denies that it has any legal existence as a person authorized to bring suit or stand in judgment in the courts of Louisiana. 2d. That the petition discloses no name or person having authority to bring this suit, and avers that any judgment rendered on the pleadings cannot support the plea and;authority of things adjudged. 3d. That neither the “ Louisiana and Texas Department,” nor the “ Shreveport District,” were ever incorporated and, therefore, they have no existence as legal persons and no authority to make a contract, bring an action, or stand in judgment in the courts of this State. 4th. That defendant never made any contract with said “ Life Association of America,” and never received any money or thing of value from said association, but the contract sued on. as shown by the petition and note and mortgage annexed to the petition, was made with the “ Shreveport District.” 5th. That if said Shreveport District had any lawful existence, its authority and vitality were created by a contract between J. B. Hood, representing said “ Louisiana and Texas Department,” as a person, and Robert H. Lindsay, representing said “Shreveport District,” as a person. 6th. That, by virtue of said contract, it was agreed that the entire business and net assets of the business of said district, shall be invested and kept invested in the city of Shreveport, viz: the whole of the premiums received in said district, less an amount to be held as a contingent fund to pay expenses and losses, not to exceed thirty per centum of the premiums received, and that thirty per centum to be held and controlled by said “ Louisiana and Texas Department,” and not to be paid out at all except pro rata to meet the expenses and losses aforesaid. 7th. That it was further expressly stipulated that the control and collection of all securities and loans of said “Shreveport District,” shall be made through and under the officers of said district, and when collected, shall remain in the charge and control as before investment.

Defendant avers that this suit is brought without the consent and against the will of said Shreveport District.. He also avers want of amicable- demand, etc.

These and the other exceptions were- referred to the merits and. ordered to stand as part of the answer.

W. B. Wilcox, as “ Receiver” (appointed by t,h§ Fifth District Court of New Orleans) of the Life Association of America, for the branch department of the State of Lpuisiana, filed his intervention on the 5th of April, 1880, in which he claimed that the sum sued for, etc., should be paid to him for the benefit of the Louisiana creditors of said association. Defendant filed exceptions, similar to those above set forth, to the intervenor’s petition. John R. Fell was subsequently appointed by said Fifth District Court of New Orleans, receiver for Louisiana, vice said Wilcox, resigned, and was substituted as intervenor herein. Wm. S. Relfe, of Missouri, as superintendent of the insurance department of the State of Missouri, on the 5th. of May, 1880, filed his petition setting forth that he was the transferee of all the assets of every character whatever, of the said Life Association of America, by virtue of a transfer and assignment made by the president of said association, on Nov. 10th, 1879, and prayed that he be substituted as plaintiff in this suit, adopting the allegations-of the original petition. Like exceptions to those filed as above, were pleaded to this petition by defendant. The intervention was duly put at issue. Defendant in his,.answer to plaintiff’s petition (without waiving his exceptions thereto), denies the allegations therein, except as to his signature to the note sued on; denies that said note has ever been endorsed, transferred or assigned by the original payee or his successor, and avers that the legal title thereto is in the original payee and that the plaintiff has no right of action thereon. He further aveis that the original consideration of the note was a loan of money at an usurious, rate of interest, beyond the powers and authority of the Life Association under its charter and beyond any.implied powers, and was reprobated by law. He further demands in reconvention the sum of $4,375 24, the amount of annual-premiums paid by him on his policy of life insurance in said association. He avers that said association, by its bankruptcy, in the year 1879, became civiliter inortuvs and incapable of carrying out its part of the contract of insurance, although respondent was ready and willing to perform and had performed all the obligations incumbent upon him. He avers that said contract has become null and void through, default of the plaintiff, and prays the Oourt to decree said nullity, and for judgment against said association or its legal representative, for said sum of $4,375 24, with five per cent per annum interest from the date of insolvency of said association in 1879. He avers that, if, he should not be entitled, in law, to recover said cash premiums, then he is entitled. both in law and in equity, to recover the sum of $615, which plaintiff agreed to pay respondent, and also the amount of said policy of insurance, the sum of $5,000, less the unmatured premiums that would be7 come due in the years from 1880 to 1885, the first named year inclusive, at the rate of $324 45, for each year, making the aggregate sum of $4,003 35, for which he prays judgment in reconvention, with five per cent per annum interest from said date of insolvency. Plaintiff and intervenor plead the prescription of one, three, five and ten years to the re-conventional demand. The District Court rendered judgment, decreeing that plaintiff do ihcover of defendant the sum of $3,000, with eight per cent per annum interest thereon from 23d February, 1875, and recognizing plaintiff’s special mortgage on the property, described and costs of suit, and also decreeing that there be judgment in favor of defendant on his reconventional demand for the sum of $3,839 60, with legal interest thereon from the 10th of November, 1879; and also decreeing that the intervention be rejected with costs.

From this judgment the plaintiff and the intervenor have both appealed.

Appellee, in his answer to the appeal, avers that the lower court erred in not sustaining defendant’s exceptions and dismissing the suit, and that defendant should have had judgment for the sum of $4,375 24 on his demand in reconvention, and prays that the judgment be reversed and amended with respect to these points complained of, and, as thus amended, affirmed with costs.

The questions presented for our consideration and decision are important and interesting, and are discussed by counsel representing the parties with marked ability. The opinion of the District Judge is exceedingly full, and with its characteristic clearness aids us materially in our investigations.

The record shows that the Life Association of America was, under the name of the Life Association of Missouri, incorporated, under the general laws of the State of Missouri, in 1868, and in October of the same year, by amendment of the charter, its name was changed to that of the Life Association of America. In 1870, J. B. Hood, styling himself “ Manager and President of the Louisiana and Texas Department of the Life Association of America,” entered into contract with B. H. Lindsay, styling himself President of the Shreveport District of said Department, by which the President, Secretary, Directors and Trustees of said District, were appointed agents of the Life Association for the transaction, in said District of the business of said Association, it being provided in said mandate, that the whole of the premiums, less an amount, not to exceed thirty .per centum thereof, received in said district should be in7 vested and kept invested in the city of Shreveport. An addendum was made and signed by said Lindsay, subsequent to the signature of said Hood, of the following proviso: “ Accepted with the proviso that the collection of the securities and loans of the Shreveport District, shall be made through and under the direction and control of the officers of said district, and when collected shall remain in their charge and control, as before the investment.

The original and amended charters of 1868 gave no authority or power to the parent company to establish such departments or branches or districts. This power was given more than two years after the creation of the Shreveport District, by an amended charter adopted in September, 1872.

The Louisiana and Texas department and the Shreveport branch were neither of them ever incorporated under the laws of Louisiana and never had any existence as a juridical person, any corporate name or capacity to make contracts or to stand in judgment. The creation of the department and branches, in other States, by the Life Association of America, under their amended charter, could not confer upon them any power to act as a corporation. The Louisiana and Texas department was the agent, and the Shreveport branch, the sub-agent, of the association. Sec. 18 amended charter of 1872. The defendant was a policy holder, on the endowment plan, for $6,500, which policy was, by agreement, reduced to $5,000, and on the 23d of February, 1872, he obtained the loan of $3,000, for which he gave his note and mortgage to secure the same, the interest on which note was paid up to February 23d, 1875. He also paid the premiums due on his policy, up to March 1st, 1880, aggregating the sum of $4,375 27.

In November, 1879, the Life Association of America was, by the Circuit Court of the City of St. Louis, adjudged and declared insolvent and the corporation dissolved, and it was decreed that all its assets, whether in Missouri or elsewhere, be vested in Wm. S. Relfe, to be held and disposed of by him for the use and benefit of the creditors and policy holders, and it was also decreed that said Relfe should proceed to collect all claims due to said association in Missouri or elsewhere, and be authorized to sue and be sued in the courts of Missouri or any other State, in any matter affecting the assets of said association.

Has Relfe, the assignee of the association, the power and capacity to prosecute this suit and stand in judgment in the courts of this State?

The Life Association of America was duly incorporated under the laws of Missouri. In Angell & Ames on Corporations, p. 373 et seq. (3rd edition) it is said : “ A company claiming to be incorporated has only to show that it has been regularly and effectually made a corporate body, to enable it to sustain a suit beyond the j urisdiction within which it is constituted.” This rule obtains in England and is upheld by numerous English authorities. Also: “ Every argument in favor of establishing, in American courts, suits by corporations created by the laws of a country, not forming part of the American confederacy, applies with still greater force to corporations of the States composing the confederacy.” 2 Rand. (Va.) R. 465; 10 Mass. R. 91; 2 Scammon (Ill.) 237, 428; 4 Rob. (La.) 518 ; 7 Martin (La.) 31; 9 Watts (Penn.) 126, etc. In Planter’s Bank vs. Bass, 2 An. 431, it was held that: “ Trustees, appointed under a law of another State to take charge of the assets, collect the debts, etc., of a dissolved corporation, may sue a debtor of a corporation in this State.” See, also, 13 Peters 519, Bank of Augusta vs. Earle, in which case Chief Justice Taney has most learnedly elucidated this doctrine.

This right existing in a foreign corporation, we can see no reason why it should not attach to the assignee of an insolvent foreign corporation.

We agree with our learned brother of the lower court, that the *' Louisiana and Texas Department ” and the “ Shreveport Branch,” not being incorporated under the laws of Louisiana, acted in this matter as the agent and sub-agent of the “ Life Association of America,” and the acts of these agents were fully ratified, as is shown by the institution of this suit. We concur, also, in the opinion that the association was entitled to the ownership of the note and mortgage, the payee of the note being its agent, and the transfer and assignment of its assets, under the order of the St. Louis court, vesting all its rights to sue and recover the same in Belfe, the assignee. 11 L. 531; 12 L. 109; 2 R. 123; 9 R. 32; 4 An. 490; 6 An. 40. The insolvency of the association operated as a revocation of all the powers which had been conferred by it on its agent and sub-agent. C. C. 2996.

We do not think that the investment of the premiums, etc., received by the company or association in loans, secured by mortgage or otherwise, can be regarded or treated as carrying on a banking business. The right to make such loans is not prohibited by law, but, on tjie other hand, we think that the association had such right resulting by implication from its charter and incident to the purposes thereof. 11 An. 232; 5 N. S. 587; Angell & Ames on Corporations; 14 Ohio, 6.

The right of the defendant to set up and urge his demand in reconvention against the plaintiff, a resident of the State of Missouri, is, under our law and the jurisprudence of our State, too plain to require argument. 16 An. 250; 27 An. 642; C. P. 375; 12 An. 257, and other authorities. The objections urged by plaintiff to the allowance of the reconventional demand on the ground that it would be a compensation of plaintiff’s demand, and that this cannot take place, because plaintiff is insolvent and defendant cannot compensate his own debt, but is entitled only to such dividend as may be declared after a final settlement, and because the policy holders of the association are partners and can only sue for a settlement of the partnership affairs, are fully met, discussed and overruled by the lower judge and, we think, properly. The learned judge of, the lower court holds: “ Whatever may be the insolvent laws of Missouri, or other States, they can have no extra-territorial effect. 5 An. 273; 15 An. 110;” 15 An. 165; 23 An. 36, 49, 60, 112; 27 An. 695. “Incorporated companies are entirely dissimilar to those of ordinary co-partnerships, or unincorporated joint stock companies. A member of a corporation, who is a creditor, has the same right as any other creditor to secure the payment of his demands, by attachment or levy on the property of the corporation, although he may be personally liable to satisfy other judgments against the corporation.” Story Conflict of Laws, l 420, 421; 7 R. 513; 5 N. S. 327.

The defendant is entitled, under his reconventional demand, to recover the amount which he has paid as premiums on his policy, or so much thereof as he is entitled to receive under the conditions incorporated in his policy. That amount has been fixed by the agent of the company, at the sum of $3224, and interest is due thereon at the rate of five per cent per annum from the date of the adjudication in bankruptcy, November 10th, 1879. He is also entitled to the further sum of $615 60 with like interest from like date, this last mentioned amount having been fixed as due to defendant, growing out of the reduction of the amount of his policy, and being acknowledged by the company as the cash value of the difference between the original and reduced policy.

Upon the evidence contained in the record, uncontradicted, we have adopted the valuation above stated as the cash value of the policy, and the acknowledgment of the indebtedness of $615 on the reduced policy fixes that amount beyond controversy or dispute.

The intervenor has not made out such a case as will enable us to pass uppn the question which he raises. We find in the record, as sustaining his demand, a mere order of the Fifth District Court of New Orleans, unsupported by any of the proceedings upon which it was based and with no sufficiently clear definition of the powers with which he should be invested, to enable him to institute this or other suits. He is merely authorized to “take charge of all the assets, books, and property, rights, credits and securities within the State of Louisiana, belonging to the estate of the Life Association of America,” and this order was made on his ex parte application to be appointed receiver in plaeq of W. B. Wilcox, resigned.

In rejecting the intervenor’s demand upon the evidence presented in this record, we express no opinio.n upon the validity or propriety of the proceedings in the Fifth District Court of New Orleans, in which intervenor claims to have been appointed as receiver. That proceeding is not laid before us with the fullness necessary to enable us to pass on these questions.

The judgment appealed from is, therefore, affirmed; the costs to be paid by the appellants.

On Application por Rehearing.

The opinion of the Court was delivered by

Poché, J.

Plaintiff’s counsel call our attention to the omission in the judgment of the lower court, and in our decree, to pass upon his claim for five per cent, attorneys’ fees on the amount of his judgment, as stipulated in the act of mortgage of February 23d, 1872.

Our decree must be amended so as to recognize plaintiff’s right to recover his attorney’s fees thus stipulated.

But a reference to the act of mortgage discloses the fact that attorneys’ fees are not stipulated to or secured by the mortgage securing the payment of the note of $3000, in capital and interest; the stipulation for attorneys’ fees is contained after and outside of the mortgage clause, and hence we cannot decree that such fees are .secured by mortgage. These views,are not only supported by a. correct interpretation of the act, but are sustained by previous adjudications of this Court on a similar point.

It is, therefore, ordered that our previous decree be amended, so as to amend the judgment of the District Court, and to decree plaintiff entitled to recover of defendant attorneys’ fees at five per cent, on the sum of $3000, with interests and costs, without recognition of mortgage for such fees on the property mortgaged' to secure the note; and it is also ordered that the costs of appeal be paid by appellee, and that, as thus’ amended, our previous decree remain undisturbed and in full force.


text:
    No. 56.
    R. C. Wisenor vs. R. H. Lindsay. Mrs. M. D. C. Cane, Warrantor.
    The sale of the minor’s property was made hy order of the Court of Probates, on application of the tutor and advice of the family meeting, and with the legal formalities, and was, therefore, valid.
    APPEAL from the First Judicial District Court, parish of CaddQ. Taylor, J.

      G. G. Henderson and J. L. Hargrove for Plaintiff and Appellant:
    A party setting up title in liimself stands in position of plaintiff in petitory action and must mate the title clear.
    All proceedings and formalities in sale of real property of minors are sacramental and must he construed stricii juris.

    The offices of tutor and administrator, though residing in one person’, are entirely distinct.

      L. M. Nutt for Defendant and Appellee.
   The opinion of the Court was delivered by

Levy, J.

This is a petitory action, in which plaintiff seeks to be decreed to be the legal owner of a certain lot of ground, in the city of Shreveport, which he claims as the sole surviving heir of his deceased mother. In his ■ petition, plaintiff also sought to recover the sum of $8000, for rents and revenues of said lot. By agreement, in the record, the question of rents and revenues was left open for future adjustment, and the only question before the court was that of title. The suit was brought against R. H. Lindsay, who, at the time of its institution, was in possession of said lot as the tenant of Mrs. M. D. O. Cane, and she appeared and assumed the defense.

Plaintiff bases his right of recovery upon the following allegations : That his deceased mother, Mrs. Jane Wisenor, of whom he is sole heir, the wife of William B. Wisenor, was the owner of the said lot, it being her separate property, acquired by her, by purchase, before her marriage with said W. B. Wisenor; and setting' forth her chain of title, running back to the Larkin Edwards grant from the government of the United States; that she died seized and possessed of said property, and that plaintiff’s right and title thereto has never been legally divested. The defendant, Mrs. Cane, in her answer, admit? that Mrs. Wisenor was the owner of said lot at the time of her death; but alleges that her succession was administered by her surviving husband, as tutor of his minor children (of whom plaintiff is sole survivor), and that, as such, he caused said lot to be sold, on the advice of a family meeting, which was, in every respect, regular and legal, and whose proceedings were duly homologated, and that, in pursuance of the decree of a court of competent jurisdiction, the lot was sold and purchased by W. M. Fulsom, now deceased; that she is the owner of the same in good faith and for a valuable consideration ; that she and her author have held peaceable and undisputed possession of the same for more than twenty years, and she pleads, in reconvention, $2Q0, paid by her, for taxes, and two thousand dollars, value of improvements placed by her on the lot. She pleads the prescription of five and ten years.

The record discloses, that the said W. B. Wisenor, tutor, applied to the District Court of Caddo parish, then having jurisdiction of probate matters, representing that the said lot, the improvements on which were in a dilapidated condition, was of little value to the minors, and that it would be to their interest to sell said property and make a inoré profitable investment of the proceeds; and on his petition the court ordéred the convocation of a family meeting, to deliberate and adyise whether it would be to the interest of the minors to sell said property, and on what terms, and as to the disposition of the proceeds. The family meeting was ordered and hqld, and advised the sale of said lot and investment; of the proceeds of sale in slave property, as more productive of revenue. They advised that the lot should be sold for one-third cash, one-third payable on 1st of January, 1860, and one-third on 1st of January, 1861, purchasers to give their notes with approved personal security, mortgage retained on the property sold, notes to bear eight per cent, per annum interest from day of sale. These proceedings were duly homologated and the property ordered, by decree of the court, to be sold oh the terms recommended by the family meeting and the proceeds invested in real estate and slaves for the benefit of the minors; and also ordering a writ of sale to issue to Henry Hunsicker, auctioneer of said parish, to make said sale. The sale, after advertisement, was made on the 15th of June, 1859. The proees verbal of the sale, returned and filed in the clerk’s office November 10th, 1859, recites, after setting forth the terms and conditions of sale, as ordered by the decree : “ And having complied with all the formalities prescribed by law, I proceeded to ■ offer said property, when, at said offering, William M. Fulsom having bid fifteen hiindfed dollars, it being the appraisement, and after crying said property a sufficient length of time, in a loud voice, and no person bidding any more, said lot and improvements were knocked off. and adjudicated to said William M. Fulsom for said sum of ($1500) fifteen hundred dollars, he being the last and highest bidder therefor, and he having complied with the terms and conditions of the sale to the satisfaction of W. B. Wisenor.”

There also appears in the record an acknowledgment, duly proven and recorded in .1871, to the effect and declaring that the said lot belongs to Mrs. M. D. C. Cane, the defendant herein, the same having been purchased for her, with money furnished by her.

We agree with the District Judge that the deed from Wisenor (ád administrator) to Fulsom, dated on the same day with the auctioneer’s proees verbal of adjudication, while not necessary to vest title in the purchaser, but describing the identical property and setting forth the terms and conditions of the sale, is to be considered as merely an additional proof of the sale by the auctioneer. C. P. 695; C. C. 2623.

The proees verbal distinctly sets forth a compliance with the terms of sale. This compliance was requisite, and it is shown in the proees verbal; the statement that this was to Wisenor’s satisfaction, added by the auctioneer, did not strengthen the declaration, as an assertion of his withholding such satisfaction with the compliance would not have weakened the adjudication. The proceedings of a court of competent jurisdiction, ordering the sale and fixing the terms, those of the family' meeting, legally convoked and regularly held, and its deliberations duly ■ homologated; the sale properly advertised and the adjudication legally rháde by thó bffleef authorized by the court to make the saló, thó compliance with the terms and conditions of the sale, shown in express terms by the proeés verbal itself, and this compliance proven by the contemporaneous declarations of Wisenbr, who, as tutor, administered the estate of his deceased wife, which had fallen to his ward, all maintain the title of the defendant to the lot claimed by plaintiff in his petition. The rulings of the court to which plaintiff has taken bills of exception were, in our opinion, correct.

We can discover no grounds for interfering with the judgment of the lower court, and it is, therefore, affirmed with costs.