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

text:
    No. 6546.
    Robert Worrell vs. James H. Vickers.

      JPrima facie, the sale, or dation en paiement of property, made-by a debtor to his creditor, to pay a debt much smaller in amount than the value of the property-transferred, at a time when the property is in imminent danger of being seized by the sheriff in favor of a lessor, is fraudulent.; and the burden of proof is on the party claiming under such sale, or dation, to prove its bona fide character.
    Under the allegation of fraud, or simulation, touching a transfer of property, every surrounding circumstance bearing on the transfer is admissible in evidence, and will be considered in passing on the character "of the assignment.
    The lessor’s right of pledge can not be impaired by a sale of the property subject to that pledge, eollusively made by the lessee to one of his creditors-, and removed from the leased premises with the fraudulent intent of defeating the lessor’s privilege.
    APPEAL from the Thirteenth Judicial District Court, parish of Tensas. Hough, J. Trial by jury.

      Garrett & Young and Labatt, Aroni & Clinton for plaintiff and appellant.

      Farrar & Beeves and F. S. Farrar for third opponent.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff sues upon-three notes, executed for the lease of the “Thistle Bidge” plantation for 1875, and obtained a writ of provisional seizure, under which twenty bales of cotton were seized. No appearance is made by the defendant. Bobert Murdock intervenes, claiming eighteen of the bales under a sale from B. W. McBride. There was judgment, in accordance with a verdict of a jury, in favor of plaintiff against defendant for the sum demanded, being the amount of the notes with interest, subject to admitted credits, with a recognition of his privilege and right of pledge as lessor upon the property provisionally seized, reserving the rights of the Intervenor, and a judgment in favor of the Intervenor for the eighteen bales.

When the sheriff approached the house on the Thistle Bidge Plantation, with writ in hand, he met a wagon laden with cotton, and turned.it back. The driver of the wagon says he was still on the Thistle Bidgo place when the sheriff stopped him. The officer proceeded to the spot where the other bales were, and there found another Murdock, who announced himself to be the agent of the Intervenor. In a few minutes the loaded wagon arrived. It was now after sundown. Murdock asked the driver why he had come back, and the sheriff answered, by his order. The sheriff announced his purpose to seize all the cotton, mules, and implements. Murdock exhibited a bill of sale from McBride to the Intervenor of cotton, mules, and all movables on the place. • The officer, a colored deputy, persisted in his purpose to seize. Murdock told him. it was not legal to make a seizure after sundown. Nothing was done.

The sheriff remained on the plantation during the night. The next morning the place was bare. The cotton and mules and wagons had disappeared. McBride naively says, the mules were kept out of the way. Eighteen bales of cotton were found by the sheriff on the adjoining land. The drivers testify that they hauled these bales from Thistle Ridge ón that night, and that the cotton was raised on that place. It was the same that the sheriff found there. ■ The hauling was by direction of the Murdock who was acting as agent of the Intervenor. According to his theory, the sheriff could seize only in the sunlight, but it was lawful to remove the objects of seizure even during the darkness of night.

The Intervenor claims these eighteen bales, under a sale from McBride of same day that plaintiff’s petition was filed. McBride says he gave Murdock a bill of sale. -None has been produced. The defendant Tickers is the son-in-law of McBride, and the latter says that he worked the plantation with his sondn-law, furnished the team and implements, and was jointly interested in the lease. He was indebted to Murdock about twenty-five hundred dollars he thinks. The consideration of the sale was the payment of this indebtedness. Both of them admit that the property thus sold was worth twenty-seven hundred and eighty-two 56-100 dollars. Murdock testifies that McBride owed him only seventeen hundred and fifteen 94-100 dollars. No money was paid at this sale, or afterwards. McBride thus sold to his creditor, in payment of his debt, property worth a thousand dollars more than the amount of the debt. Along with the statistics we have the information from McBride himself, that “ this sale was bona fide, and not made with the intent to defraud any body. ”

There can be no doubt in our minds of the intent and object of these parties. The plaintiff in answering the petition of intervention expressly charges collusion between the intervenor and McBride, for the purpose of depriving him of his recourse against the crop produced on Thistle Ridge, and the property used in and for its production. A sale, or a elation en paiement, by a debtor to a creditor of property of value largely in excess of the debt due from the one to the other, made under an impending seizure by another creditor of same property, lacks the element of bona fides on its face. Without explanation, the reality of such sale, or giving in payment, is not credible, and under the charge of fraud or simulation, all the facts and surrounding circumstances attending the transaction are properly inquired into. Montgomery v. Chaney 13 Annual 207. When these circumstances confirm the impression created by the suspicious garb in which the transaction is clothed, it is stripped of its pretensions to good faith or reality.

The plaintiff had a right of pledge upon the crop, and the movables used in producing it, to satisfy his claim as lessor, and he had fifteen days after their removal from the leased premises in which to pursue them. Code of Practice art. 288. The rights of the lessor can not be affected by a sale made by a lessee to one of his creditors, and a fraudulent removal of the property from the leased premises by an agent of the purchaser for the purpose of placing it beyond the landlord’s reach. Denistown v. Malard, 2 Annual 14 Civil Code, arts. 3185, 3230, new numbers 3218, 3263.

It follows that the cotton seized provisionally by plaintiff is subject to his claim for rent, and his right can be exercised to the exclusion of the Intervenor, who has no valid claim to it until the plaintiff’s judgment is satisfied.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court in favor of the plaintiff against the defendant for the amount of his demand and interest, and recognizing the plaintiff’s privilege and right of pledge as lessor upon the property provisionally seized, be affirmed, and that the judgment of the lower court in favor of Intervenor against plaintiff and defendant is avoided and reversed. It is further ordered, adjudged, and decreed that the provisional seizure of plaintiff is maintained, and that he have judgment against the defendant for the costs of the lower court on the principal demand, and' against the Intervenor for the costs of the intervention in that court; and all costs of this court.

On Application for Rehearing.

A rehearing of this cause is granted for the sole purpose of ascertaining whether the payment of $500, imputed by the plaintiff with the consent of the defendant to the discharge of another debt than the-rent, should not bo held legally imputed to the rent, and to this point the attention of the litigants is directed.

On Rehearing.

DeBlanc, J.

The Thistle Ridge plantation was — in 1874 — the joint property of plaintiff and defendant. Plaintiff’s undivided half of said plantation was leased by defendant for the year 1875. The price of said lease was $1177.75, the last instalment of which was due on the-first of October 1875. Not a cent of that price was paid at its maturity— and, to satisfy it, twenty bales of cotton raised on the aforesaid plantation, during the term of the lease, were provisionally seized on the eleventh of June 1876.

The order under which that seizure was made, issued on the ninth of June 1876, and Robert Murdock, who intervened in the suit between plaintiff and defendant, claims that, on the day of the issuance of that order, he purchased from R. W. McBride, eighteen out of the twenty bales of cotton raised on the Thistle Ridge plantation and seized to satisfy the lessor’s privilege. The place, or the half of said place — though rented by Tickers — was rented for the joint benefit of Tickers and McBride, but — according to the latter’s declaration — without the consent of Worrell.

It was from plaintiff that defendant acquired title to one half of the Thistle Ridge plantation. What he may have paid and promised to pay for that half is nowhere mentioned, but it is in evidence that the portion so acquired by Tickers, was by him retroceded to Worrell — and that, in consideration of said retrocession, Worrell returned to Tickers the note he had subscribed for the. price agreed upon, and Tickers gave him a •a draft of • $ 500.00

This transaction took place on the fifteenth of January 1876, and — at that date, Tickers was already indebted to plaintiff for the whole of the rent of 1875.......................... $1177.75

In all, not including the stipulated interest on the rental notes....................................................... $1677.75

At that date — the fifteenth of January 1876 — what was due from McBride to Murdock? The transcript contains no detailed account of that indebtedness, but the creditor testified that — during the year 1875, he had furnished supplies to the debtor, to the amount of.................................... $1715.94 during 1876................................................ 187.60 forming a total of........................................... $1903.54 and McBride — the debtor — declared that Murdock had furnished supplies- to make the crop of 1875, that his bill for the supplies of that year, amounted to some $500 or $1000, and that — on the ninth of June 1876, the date of his sale to Murdock, he was owing him about $2500, and may be more.

When — in a court of justice — a right alleged by one is denied by •another, it is not sufficient to establish that it is probable — but it must be established that it is legally certain that the right does exist: otherwise, the claimant must fail. Under the evidence adduced to sustain the intervention, how can we determine what McBride owed or owes to Murdock, and, of that debt, what portion was due in 1874 and which in 1875 ? McBride and Murdock do not agree as to either the amount or the dates of that claim: the first said: a portion of my indebtedness to Murdock accrued prior to January 1875: the other, that it accrued in 1875 and 1876 ; that — in 1874 — McBride had, on his books, a credit of $40.

Murdock’s intervention is based on a sale from McBride to him, and — though he'has the evidence of that sale, he did not place it before the Court; he did not prove that the price fixed by the vendor and accepted by him corresponds to the value of the property he alleges that he acquired, nor did he prove how and when the acknowledged balance due by him on the acknowledged price was to be paid. Unexplained as it is, does not that omission, coupled with a delivery made on the eve of a delayed seizure, and the nightly exportation of the purchased effects, cast upon that transfer an authorized suspicion? It certainly does.

If Murdock did furnish the supplies — if they had not been paid for in full or in part, his lien was not recorded — and, if it did exist, Worrell was — in no way — informed of its existence, and received in good faith, and in satisfaction of a real indebtedness, every pound of cotton shipped, and every cent paid to him. As to McBride, he knew, and it is difficult to realize that — as his vendor, Murdock was not informed that every article of property embraced in the proposition which preceded the sale, and included in the sale which followed the proposition — mules, oxen, cotton in bales' and cotton in seed, was subject to the undenied claim and undenied privilege of Worrell, as a lessor. McBride did not remember whether he told Murdock that said property was about to be seized.

Of what can Murdock complain? How is he aggrieved by the decree of this Court ? His account against McBride is not in the record : the sale on which he relies was alluded to by the witnesses, but it was not read to the jury: we know — from their declaration — that it was made for $2782.56, but how was that price paid or to be paid, how settled or to be settled? If McBride’s account was received in exchange of a part of that price, where is the receipt ? What is to become of the balance fixed by and between those parties ? Is it to be retained by the Vendee, or returned to the vendor ?

Deducting from the price of the sale.....................$2782.56 the price which he stated was fixed for the cotton provisionally seized.................................... 997.50

Our decree leaves in the hands of a creditor who has not established his claim, in the hands of a vendee who has failed to establish the legality of his title, a balance of property which he valued himself at......... $1785.06

What property was so left ? Eleven mules which McBride said he sold for.'...........'................'.........$1435.00

And other property for.................................. 350.06

$1785.06

The imputation, by Vickers and to his own debt, of proceeds of cotton 'which belonged to the planting partnership which existed between him and McBride, was certainly illegal, both as to McBride and as to any creditor of said partnership — but, though it may be that Murdock had a claim against it, that fact was not judicially shown, and it is shown that — not including the cotton provisionally seized — Murdock did receive, in satisfaction of his alleged claim, property which he valued himself at §1785.06.

Under these circumstances, it is no concern of Murdock whether the cotton seized was partly acquired from the laborers, and in what way funds which belonged to Tickers and McBride were disposed of and imputed by Tickers.

We adhere to the original decree rendered in this ease.


source: Caselaw Access Project

author: Spencer, J.

license: Public Domain

text:
    No. 5918.
    P. H. Cummings, James H. Cummings, Subrogee, vs. J. M. Saux.
    A contract entered into by a member of a city council, either in his own name or in the namo of another person, which the charter of the city prohibits him from making, is absolutely null and void.
    "Promissory notes given by a vendee for the price of'a thing which the vendor assumed to sell-, but which never had an existence, are utterly without consideration, and can not be enforced by the vendor or by any one who has acquired them after their maturity.
    Contracts having an unlawful or immoral cause are not merely void themselves, but as a rule, can not bo the basis of any valid auxiliary contract.
    A PPEAL from the Fourth District Court, parish of Orleans. J. LijncK,

      Samuel P. Blanc .for plaintiff and appellant.

      Cotton & Bevy for defendant.
   The opinion of the court was delivered by

Spencer, J.

On twenty-third July, 1866, the contract for repairing and keeping in repair all the ballasted and macadamized roads in the eity of New Orleans was adjudicated to one M. E. Stack for a period of three years, for the sum of ten thousand five hundred dollars per annum. By private agreement one Gabriel Correjolles became half owner of this contract.

On fifteenth November, 1866, by public act Stack and Correjolles transferred their rights and obligations under this contract to the defendant, J. M. Saux, for §5000, of which §3000 was paid cash, and the balance was to be'paid on terms of crédit, for which credit portion J. M. Saux executed his two notes at six months, drawn to his own order and by him indorsed, each for §1000, and delivered them one to Stack and one to Correjolles.

M. E. Stack, the adj-udicatee, was the son-in-law of P. H. Cummings, who was at the date of the said adj udication to Stack and at the date of said transfer to Saux a member of the City Council of New Orleans. P. H. Cummings, claiming to be owner before maturity of the note so given to Stack, instituted this suit thereon against the maker, Saux.

The defense is in substance—

First — -That M. E. Stack, to whom the contract was nominally adjudicated, was in truth the mere alter ego of P. H. Cummings, that Cummings was the real adjudicatee through the interposition of Stack, and that said Cummings being a member of the City Council was absolutely incapable of taking said contract, and that the adjudication thereof to him was null and void, as being infraudem legis, prohibited by the city charter, and against good morals and public policy.

Second — That there was no consideration, at least no lawful consideration, for said note, said Cummings being himself in truth and fact the party who received said contract from the city and conveyed it to defendant.

After the institution of this suit, P. EL Cummings, plaintiff,-died, and J. EL Cummings, his son, purchased his rights therein at succession sale for one hundred dollars, and has been formally subrogated thereto.

We have examined the evidence in this case carefully, and think that it clearly establishes the following facts:

. First — That P. EL Cummings was at the date of the adjudication, and at that of the transfer to Saux, of the contract with the city, a member of the City Council.

Second — That Stack was the son-in-law of P. EL Cummings, and that he was merely a person interposed to bid in said contract for Cummings, and that Cummings was the real contractor.

Third — That the conveyance and -transfer made by Stack to Saux was for Cummings’ benefit, and that Cummings received the entire price from Saux and Stack no part of it. t

So that the only questions are: First — Was the adjudication of the contract to Cummings, he being a member of the City Council, legal, or was it null and void? Second — If said- adjudication and contract were null and void did the transfer thereof constitute a good and lawful consideration for the note sued upon ?

Under the view we take, the question of the right of defendant to inquire into the consideration of the note in the hands of an innocent third person does not arise, since we hold that Cummings was himself the real party vendor.

- First — The city charter provides that “ no member of the Common Council shall hold any other employment or office under the government of New Orleans, while he is a member of said Council, and no member of the Common Council, or any officer of the corporation, shall be, directly or indirectly, interested in any work, business, or contract, the expense or price or consideration of which is paid from the City treasury, or by an assessment levied by an ordinance or resolution of the Common Council, nor be the surety of any person having a contract, work, or business with the City, for the performance of which security may be required.”

This is a prohibitory statute, and the prohibition has its foundation deep down in good morals and the public interest.

The Civil Code, art. 11, provides : “ Individuals can not by their conventions derogate from the force of laws made for the preservation-of public order or good morals.”

Article 12. — “ Whatever is done in contravention of a prohibitory-law, is void, although the nullity be not formally directed.”

Article 1885. — “ The object of contract must be possible, by which is-meant physically or morally possible.”

Article 1886. — “ That is considered as morally impossible which is forbidden by law or morals. All contracts having such an object are-void.”

Considered under the light of these articles of our Code, and of the-charter of the city, we do not hesitate to say that the adjudication of the said contract to Stack for Cummings was absolutely null and void, and that consequently the alleged or supposed “ contract to repair the roads of the city” never had any legal existence.

Second — Was the transfer of this void and illegal contract to the defendant a good and sufficient consideration for the note sued upon ? Plaintiffs counsel contends that it was, and cites several decisions íd support of his proposition. He refers us to the case of the Planters’ Bank vs. the Union Bank, 16 Wall. p. 499, where the Supreme Court of the United States says:

“ But when the illegal transaction has been consummated, when no court has been called upon to give aid to it, when the proceeds of the sale have been actually received, and received in that which the law recognizes as having had value, and when they have been carried to the credit of the plaintiffs, the case is different. The court is then not asked to enforce an illegal contract. The plaintiffs do not require the aid of any illegal transaction to establish their case.”

And again to the case of Brooks vs. Martin, 2 Wallace, p. 79, where-the same court use this language:

“We think that in point of fact the allegation of the answer — that the traffic in which this firm engaged was the buying up of soldiers’ claims, before any scrip or land warrants were issued, and not the purchase and sale of bounty land warrants and scrip — is' true. We have ■as little doubt that the traffic was illegal. Undoubtedly the main object ■of the ninth section of the act of February 11,1847, was to protect the ■•soldier against improvident contracts of the precise character of those, developed in this record. It was a wise and humane policy, and no court should hesitate to enforce it in a case which called for its application. If a soldier, who had thus sold his claim to Brooks, Field & Co., had refused to perform his contract, or to do any act which was necessary to jgive them the full benefit of their purchase, no court -would have compelled him to do it, or give them any relief against him. And if they had, by any such means, got possession Of the land warrant or scrip of a soldier, no court would have refused, in a proper suit, to compel them, to deliver up such land warrant or scrip to the soldier. Or if Brooks, after the signing of these articles of partnership, had said to Martin: ‘I refuse to proceed with this partnership, because the purpose of it is illegal,’ Martin would have been entirely without remedy. If, on the other hand, he had said to Martin: ‘I have bought one hundred soldiers’, claims, for which I have agreed to pay a certain sum, which I require you to advance according to your agreement,’ Martin might have refused to comply with such a demand, and no court would have given either of Ms partners any remedy for such a refusal.”

We do not think these cases go to the extent that counsel claims for them, nor do we think that the doctrine maintained by them would materially help the plaintiff’s case. These decisions seem to rest upon this idea expressed by the court, that “ the plaintiffs do not require the aid of any illegal transaction to establish their case.” Can that be affirmed of P. H. Cummings, the plaintiff in this case, under the laws of Louisiana, with the execution of which this court is charged ? Under the laws of Louisiana, as we have seen, the pretended contract to repair •the city' roads did not exist. It never drew the breath of life. It was still-born. Yet it was for this myth that the defendant executed the note sued upon. Nobody will dispute that the cause of Saux’s obligation was this supposed contract. We find that the cause of his obligation never existed — that its existence was a legal and moral impossibility.

The Civil Code, art. 1887, says: “An obligation without a cause, or with a false or unlawful cause, can have no effect.”

Article 1889. — “ The cause is illicit when it is forbidden by law, when it is contra bonos mores or to the public order.”

And yet .this plaintiff is seeking at the hands of this court the enforcement .of an obligation, without a cause,” or what is the same diking, “with an unlawful cause.” The injunction upon this court by 'the laws of Louisiana is that such an obligation “ can have no effect.” When the laws of our own State are so plain and so mandatory in their ■terms; when they tell us that the cause of a certain obligation does not ' exist or is unlawful, and that we shall -therefore give “ no effect” to it, we must not, out of regard and deference to the opinions of any tribunal, ■.however august, administering a different code of laws, disregard the •plainest provisions of our own. By the laws of Louisiana, no man can •recover upon an obligation “ without a cause or with a false or unlawful cause,” except under certain restrictions, the bona fide third holder, '-before maturity, of mercantile and negotiable paper.

“An obligation must have a lawful cause. If it have an unlawful - cause, or one contrary to good morals or the public order, it can not have effect and its invalidity will taint any collateral or auxiliary agreement ■«springing from it.” 1 A. 178 ; 6 R. 115.

“ Articles 1885 and 1886, C. C. (old), limit the rule contained in article 'I960, that no one ought to be permitted to enrich himself at the expense •of another, to cases in which the alleged benefit arises from a lawful act. From unlawful acts, though they may prove beneficial to others, no ■rights not expressly authorized by law can arise.” 3 A. 203.

So that even if it were true (which, however, it seems by the •■evidence not to be) that the defendant made money out of this “contract,” 'it would be no reason why Cummings should be paid something for '.liething. If the defendant received money from the city, it was in payment for his labor and material expended in repairing the city roads — a ■debt which the city, in equity, ought to have paid, contract or no contract.

We see no error in the judgment appealed from, and it is therefore •affirmed with costs of both courts. :


author: DeBlanc, J. Spencer, J.

text:
    No. 6816.
    The Jefferson & Lake Pontchartrain Railroad Company vs. the City of New Orleans.
    .-In. appeal will not lie from an order of Court granting an injunction on condition that the applicant furnish such bond as the court shall thereafter designate, when the appeal is taken before the amount of the bond is fixed. Such an appeal is prematuro.
    APPEAL from the Sixth District Court, parish of Orleans. Rightor, J.

      Geo. L. Bright and L. F. Simonds for plaintiffs and appellees.

      B. F. Jonas, City Attorney, for defendant.
   The opinion of the court on the original hearing was delivered by DeBlanc, J., and on the rehearing by Spencer, J.

DeBlanc, J.

The plaintiff alleges that it is the owner of a tract of land, through which the -city -has forcibly, wrongfully and illegally dug a canal. It alleges that it will cost $75,000 to refill the canal, and for tírense made of the canal the city owes it $25,000.

The material allegation in the petition relative to the injunction is :

“Tour petitioner shows: That the city of New Orleans, has no right to use and maintain on the land of your petitioner said canal and its-embankments, and has no right to drain into said canal and over the property of your petitioner, and said city and its officers have no right to enter upon said land and trespass thereon and have no right to prevent your petitioner damming said canal so as to prevent the city draining therein.” R. p. 5.

The prayer is “that the city of New Orleans, its officers and agents-be enjoined and prohibited to use and maintain on the land of your petitioner said canal running from North Line street to Lake Pontchartrain and be enjoined and prohibited to drain into said canal and over the property of your petitioner and to enter upon said land and trespass-thereon and be enjoined and prohibited to prevent your petitioner damming said canal so as to prevent the city from draining therein,” p. 5.

The court ordered, “Let an injunction issue as prayed for on plaintiffs furnishing bond with surety, good and solvent, to secure the payment of such damages as may be sustained by the city in case it shall be decided, that the injunction has been wrongfully obtained. The amount of the bond to be fixed on rule to be tried contradictorily, p. 22.

Prom this order the city has taken a suspensive appeal, p. 25.

The appellee has moved to dismiss the appeal taken herein, on theiollowing grounds:

1st. It does not appear by the transcript that the injunction will cause damage to the city exceeding five hundred dollars, therefore it does not appear that this court has jurisdiction.

2d. The order of the district court, which directs an injunction to-issue, upon plaintiff furnishing a bond, the amount thereafter to be fixed by the court, is not final; for the court has not fixed the amount of the bond. Such an order works no irreparable injury to the defendant.

3d. No appeal lies from an order granting a preliminary injunction.

An injunction was applied for by plaintiff: the sworn allegations of its petition justify the presumption that its demand is legal, and— acting on that presumption — the lower court has ordered that the applied for injunction shall issue — but when? When plaintiff shall have furnished bond and security in an amount to bo hereafter fixed, and how? On a rule to be contradictorily tried between the contending parties.

It does not appear that the contemplated rule has been taken and tried; the amount of the indispensable bond has not been fixed, and we are called upon to pass — not on any accomplished fact, not on any •decree which may now be executed, but on the mere apprehension that •an acknowledged right may be enforced, that a suspended writ may be Issued, that an irreparable injury may be inflicted.

Erom what has defendant appealed? Is it from a final judgment? It is not. Is it from any absolute order, by whatever name it may be •called ? It is not. The order appealed from is a conditional one: it does not interrupt — it does not prohibit the exercise of any right, the ■enjoyment of any privilege. In its actual form it has no force — no writ ■can issue from it — and, as it may never be completed, never executed, •the defendant is — in no sense — exposed .to any irreparable injury. 3d A. 217; 4th A. 307.

Its appeal is premature, and — for. that reason — dismissed at its •costs.

On Application for Rehearing.

Spencer, J.

The order granting the injunction in this case is inchoate -and incomplete until it is supplemented by another order fixing the •amount of the injunction bond — so that the delays for appeal, if an ■appeal be permissible at all from such an order, would only run from ■the date of the supplemental order. We have lately held in the case of “The State ex rel. Paul Doullut vs. the Judge of-District Court of Orleans,” that an appeal will not lie from a preliminary order granting •an injunction.

Rehearing refused.


author: DeBlanc, J. Marr, J. Spencer, J.

text:
    No. 6814.
    Succession of Mrs. P. J. Michon. Opposition of Mrs. Louis Ducourneau.
    The clause of a husband’s will, by which his wife is constituted his universal legatee, on condition that if his sister survived his wife she should be entitled to have a certain sum from the wife’s succession, does not involve a fidei commissum, or prohibited substitution. And hence on the death of the wife, who had accepted the husband’s bequest, with the charge on it, the surviving sister of the husband has a right to claim the sum from the wife’s succession.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      A. J. Villeré for executors and appellees,.

      A. & IF. VoorMes for opponent and appellant.
   The opinion of the court was delivered by

DeBlanc, J.

The last will of Pierre Jerome Michon, probated cn •the sixth of April, 1872, is in the following words :

“ New York, Septembre 19,1871.
“Sain <Tesprit, mais souffrant, je donne iei mes derniéres volontés,. Mr. Gabriel Lóaumont qui a en mains a peu pres tout mon avoir,. donnera a. ma soeur, Estelle Miohon, veuve Louis Duoourneau, troismille dollars, et tout le reste a ma femme legitime, nee Louise Mathilde-Lacoste. Si ma femme mourait avant ma soeur, veuve Louis Duoourneau, la succession de ma femme serait redevable a ma scaur de troi©. mille dollars de plus.”

That last will was probated as a whole, without opposition, anc^ Michon’s wife — ^-as universal legatee of her husband, received — in money —about-fourteen thousand dollars. She died on the eighth of May,.. 1877, and Mrs. Louis Duoourneau, relying on the last clause of her brother’s will, claims from the succession of Mrs. Michon the sum of' three thousand dollars. Her demand is opposed on the ground “that the condition imposed to the bequest from the husband to the wife, in the will of the nineteenth of September, 1871, is a fidel commissum, and,, as such, null and of no effect under the 1520th article of R. C. C.” ■

On Michon’s part, there was no necessity to disguise or conceal— under a suspicious and prohibited form, his undeniable intention to add in favor of his sister, a conditional to an unconditional legacy. If, to carry out that lawful intention, he adopted a prohibited form, it could have been but through error, for he had the capacity to dispose as he-did, and his sister the capacity to receive. That is not disputed.

He could legally have given what is claimed: did he give according-to the form prescribed by our laws? Does his last will contain an immoral, unlawful or impossible condition — a substitution or a fidei commissum ? There is not — in the will — any reprobated condition, and if there had been a substitution in any of its clauses, that including the-substitution would have been null as to both the wife, as a legatee, the-sister as a third person, and the sister, as an heir, would have then» received the very amount which she now claims as a legatee.

R. C. C. 1520.

There is, however, no substitution in the last will of Michon. Hi© universal legatee is not charged to preserve or to return a .thing to a-third person, in the sense of the first paragraph of article 1520 of the Code: but — to the legacy tendered by Michon to his wife, to a liberality which she could accept or refuse, Michon has attached the condition! that — if she died before his sister — the latter would be entitled to clainv from her succession, the payment of a sum of three thousand dollars.

According to the French -authorities, there is no prohibited substition:

“ Dans la disposition par laquelle un testateur, a pres avoir instituí un lógataire universel, gréve ce legs du legs particulier d’une somm®d’argent pour étre payee en oas de mort du légataire universel, sans parenté.”

Gilbert, Codes Anuobis, p. 385, No. 70, p. 386, No. 80.

It is contended that the obligation imposed by the will is that the wife, or her succession, shall return to the sister another thing than thafc donated, and that such a disposition constituted, under the Roman law, the fidei commission prohibited by ours. In this, there is an error of fact What did the wife receive ? Money. What is claimed of her succession ? Money. That which she received was hers and she had the right to dispose of it at her pleasure.

As well said in the case of Groves vs. Nutt: “ The legatee did not promise to preserve the money, to keep each identical dollar and return that to her father’s estate. On the contrary, she was to have the use o£ the money as long as she lived, and she contracted to return as much other coin only in the event she should die without issue. If that is a fidei commission or a prohibited substitution, then the thing which the depositary receives and promises to preserve and return to the depositor or the sum of money which my friend receives from me and promises to return in one week or ten years, ave fidei commissa and substitutions^

3 A. 122 and 123.

“ II suit de la,” according to Marcadé, “ qu’il ne peut pas y avoir substitution quand la libéralité a pour objot des choses fongibles, en sorts que le donataire ait la libre disposition de ces choses et soit seulement charge d’en rendre d’autres de merne nature, qualitó et quantite„ dans ce cas', en effet, il n’y a pas obligation de oonserver.”

Marcadé, vol. 3, p. 418.

Read with care, Michon’s will is found to contain three dist-incit dispositions, or one universal legacy with two charges thereon imposed. By one of said dispositions, his wife is chosen and named as his universal legatee; the two others, or the charges on the universal legacy are in? favor of his sister : if she survived him and his wife, she was to receive— at his death, the sum of three thousand dollars — at the death of his wife,, as much. The words used by the testator to describe and convey his. intention — “ La succession de ma 'femme sera redevdble (accountable) a ma soeur,” indicates that, as the first, the conditional legacy to his sister was a charge attached to his universal legacy and imposed upon his universal legatee. ■

“C’est encore une régle également applicable aux.testaments et aux contrats, de prendre dans le sens qui eonvient le plus a la nature de l’acte, les termes susceptibles de deux sens ; par exemple, si le testateur charge son légataire universel de payer une somme a un tiers, on doit prendre cet ordre pour un legs particulier plutot que pour une reconnaissance de dette.”

Coin. Delisle, Commentaire du Titre des Donations et Testaments, p, 447, No. 11.

“ Comme la volonté du testateur fait la loi, le principe général est q’uil faut expliquer les difficultés du testament par la volonté du testateur autant que toute la teneur du testament la pourra faire connaitre ; il faut pour ainsi dire y suivre a la piste toutes les traces de cette volonté.”

1 Same book, p. 446, second paragraph of No. 4.

At the death of Miehon — less the unconditional legacy to his sister, the whole of his succession was given to and received by his wife, with full and unlimited power to dispose of it, of all that composed it. That legacy was accepted by the wife as made by the husband, with the ■charge thereon imposed, the condition thereto attached, and — as they are an inseparable part of the legacy — its acceptance carried with it that of said charge and of said condition.

When she applied for the probating of her husband’s will, could the wife have divided the legacy and divided her acceptance ? Could she have said: I take the legacy, but without the charge, without the condition ? She could not. Can her collateral relations, called to and claiming her succession as legatees, disregard, divide or qualify her absolute, •entire and unqualified acceptance? Can they change or reduce the effects of her acceptance, and of the decree rendered at her own demand and unreservedly homologating the will ? They can not.

“ There can be no doubt, as hold by this court, that the acceptance of a legacy burdened with a modus, or lawful charge under a will, is itself a contract on the part of the person accepting, obliging him, impliedly at least, to comply with the condition imposed by the will and to acquit the charge imposed upon the legacy which he receives, and that — under the Constitution of the United States, neither the State where this obligation is contracted, nor any other State can — by subsequent legislation, absolve the obligor from such obligation.”

3 A. p. 122; R. C. C. 1890.

Under the articles of our Code, the right acquired under a conditional bequest creates more than a mere implied obligation: it creates — on the happening of the condition — an express, civil, natural and corresponding ■obligation on the heirs and, on the universal legatee as on the heirs, to ■deliver the conditional, the particular legacy, or to acquit the charge imposed by the testator on his liberalities. There is but one way of •avoiding that plain and positive obligation : it is by rejecting the disposition by which it is imposed.

Rev. C. C. 2030, 1614, 1633, 1758, No. 4, 1703.

What, as to his estate, were the testator’s intentions ? To transmit it to only two persons — his wife and his sister. In what proportion ? To his sister, he gave $3000, which were to be paid to her at his death ; to his wife, he gave the balance of his- estate; but the legacy to the latter was charged with the conditional obligation that — at her death — the testator’s sister, if then alive, would be entitled to claim from the succession of his wife — as a debt — an additional sum of $3000. This charge was not to accrue at the death of the -wife, but that charge accrued at the opening of Michon’s succession and was merely suspended until the accomplishment of the condition attached to it — the predecease of the wife.

R. C. C. Art. 1698.

The last will of those who depart this life is the last expression of their love, friendship or gratitude, and — where it violates no law — that will, by far the most sacred of all Sacred things, should be as respected as the grave of the dead.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be and it is hereby avoided and reversed, the opposition .of Estelle Michon, widow of Louis Ducourneau, maintained, and the executor of the last will of Louise Mathilde Lacoste, deceased widow of the late Pierre Jerome Michon, ordered to class said opponent as a creditor of the succession of said widow Michon for the sum of three thousand dollars, with legal interest thereon from the twenty-fifth of June (1877) eighteen hundred and seventy-seven; the costs in both courts to be paid by the succession of widow Pierre Jerome Michon.

Concurring Opinion.

Marr, J.

The right and power to dispose by will being granted by law, whenever a question arises as to the validity of a testamentary disposition which is clothed with the requisite formalities, it is not necessary for the legatee or beneficiary to show affirmatively that such disposition is authorized by law. On the contrary, the burden is on him who challenges its nullity to show that it contravenes some prohibition of the law.

The last clause in the will of Michon is peculiar. At first blush it appears to be an attempt by the testator to dispose, in the event that his wife should die before his sister, of that which would necessarily cease to be his at the moment of his death, and would become, eo instanti, the property of his wife as his universal legatee. This objection, however, on careful analysis, will be found to be more apparent than real.

The legal title to all that one dies seized of must vest, at the moment of his death, either in the instituted heir, or the universal legatee, or the particular legatees ; or in those whom the law calls to the succession ab mtestato.. La inort saisit le vif. The testator may give to one the naked ownership of his entire property, or of such part of it as he ■may choose, and to another the usufruct for life, or for a term of years ~ but there are no words in this will which tend to create a usufruct, or to separate the absolute ownership from the immediate and continued use’ and enjoyment.

The will is written in plain language; and it is not difficult to ascertain precisely what the testator meant and intended. After the particular legaej’’ to his sister, he gave all the residue of his property to huswife. The legal title, the- absolute ownership, vested in the wife, the universal legatee, without restriction or limitation. He did not intend to diminish or to impair the dominion and control of the universal legatee as owner; but he desired to provide for the contingency of the death of his wife before that of his sister. He did not attempt to vest any title in his sister to any part of the residue given to his wife; nor did he require his wife to give any part of that residue to his sister. He did' not charge his wife to keep or preserve any sum for his sister, nor did he request her to make any testamentary or other disposition to take effect at her death, in favor of his sister. He intended that his wife •should possess, own, and enjoy with all the incidents of absolute ownership ; and that his sister, if she survived his wife, should have the additional sum of $3000.

This disposition is neither a substitution nor a fidei commissum. The distinguishing characteristic of a substitution is, that the charge imposed on the gravatus, the first taker, is that he shall keep and preserve the specific thing during his life, in order that it may pass and be transmitted, at his death, to the person designated ; and it necessarily involves the fidei commissum, the trust, that the gravatus will keep and preserve that thing for the person -who is to take it after him, by the will and appointment of the testator. No such charge was imposed upon Mrs. Michon by the will of her husband.

That which we call simply a fidei commissum differs from that disposition which is designated by the word substitution, in that the charge imposed upon the fiduciary, the gravatus, the first taker, is to be executed during his life, whether immediately after the death of the testator, or after the lapse of a certain time. No such thing was required of Mrs. Michon; nor was any charge to keep and preserve any thing-imposed upon her by the terms of the will.

The testator having the power of disposal may make a conditional legacy, or an absolute legacy, at his option ; and it is not unusual to find in wills legacies dependant on. the survivorship of the legatee, or to take effect only in the event of the predecease of another. The law ■imposes the restriction that the condition upon which the legacy depends shall not be either illegal, or immoral, or impossible.. Michon left no-forced heirs, and his sister would have been called to his succession as one of his legitimate heirs, for all that appears she would have been his only heir if he had died intestate. There can be nothing either illegal or immoral in that feature of a testamentary disposition by which the whole or part of a succession reaches one who, though not a forced heir, would have been called to the succession áb intestato; and the condition of the predecease of the wife was not only not impossible but it was actually realized.

If after the particular legacy to his sister, and the universal legacy to his wife, the testator, instead of using the phraseology, “Si ma femme mourn ait 'avant ma sceur, la succession ele ma femme serait redevable á ma sceur de trois mille dollars de plus,” he had left his sister the additional sum of $3000, in the event of her surviving his wife, he would simply have attached to the universal legacy the condition that this additional sum should be paid to his sister in the event of her surviving his wife. He did not intend to create a debt in favor of his sister to be paid by his wife; because that would have diminished the legacy to the wife. Evidently, and most naturally, he intended to make his wife the chief beneficiary of his will; and while, after his wife he preferred his sister, having already placed her above want by the absolute legacy of $3000, he desired to make additional provision for her only in the uncertain event of her surviving his wife. When the wife accepted the universal legacy, she- assumed the obligation resulting from the conditional legacy in favor of the sister; and that obligation was one which might never become absolute or exigible : which could not become absolute during the life of the wife: which could become exigible only after her death; and which could be acquitted only out of her succession. Therefore, when the testator said in his will, the succession of my wife shall be indebted, or accountable, to my sister, he simply expressed precisely what would have been the legal consequence and effect of a legacy in favor of his sister conditioned upon her.surviving his wife.

The wife might have lost by misfortune or imprudence, or might have squandered and dissipated by extravagance, not only the entire fortune left her by her husband, but any and all other property belonging to her, so that her succession might not have sufficed to acquit this legacy; but that circumstance could in no manner affect the validity of the disposition. The intention of the testator is clear: the purpose is lawful: the uncertain event contemplated by him simply as a possibility has actually happened ; and it is not material to inquire whether he might not have chosen terms more apt, since those which he used suffice to show, beyond doubt, what his intention was, and to accomplish the purpose he had in view. The disposition in question .violates no policy or prohibition of the law; and it must be respected and maintained.

I concur in the decree pronounced by Mr. Justice DeBlanc.

Concurring Opinion.

Spencer, J.

I think that the testament provides in substance, as Hollows:

First — An absolute legacy to the sister of $3000.

Second — An absolute legacy to the wife of the residue of the estate, with a charge to pay the sister $3000 if the sister survived the wife.

There can be no doubt that the testator could legally charge the legacy to the wife with the payment of a sum to the sister. It is equally certain that this sum imposed in favor of the sister" could be made payable with a term or on condition.

If on condition, then that condition might be any future and uncertain event; such as the marriage of the wife or survivorship of the sister. The latter is the condition in this legacy. The fact that the testator says that “ his wife’s succession will owe the $3000 ” is only a manner of speaking induced by the knowledge of the testator that under the bequest his sister would only be entitled to payment after his wife’s death, and therefore out of her succession. If the wife was not willing to incumber herself and therefore her estate with this debt, she could have renounced the legacy.

It is clear to my mind that this bequest to the sister by way of charge upon the wife’s legacy is a mere conditional legacy, and not a Jidei commissum.

I concur in the decree pronounced by the court.


author: DeBlanc, J.

text:
    No. 5492.
    William O’Neill vs. the City of New Orleans.
    The City of New Orleans is obliged to keep its streets, sidewalks, and bridges repaired, and if on account of its neglectful delay in making a needed repair a person suffers an injury, to which he has not contributed by any fault of his own, the City will be liable in damages for the injury.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J. Trial by jury.

      Chas. S. Bice for plaintiff and appellee.

      B. F. Jonas, City Attorney, for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

On the 18th of May 1872, while crossing from Magazine to Canal street, plaintiff stepped upon a flag-stone destined to span the gutter at the junction of those streets, one end of which was then laying in said gutter. He then and there slipped, fell with violence, broke his right leg over the Imee, and — on that account — was out of employment for the space of seventeen months.

He brought suit against the city, charges that the injury he has sustained was the immediate result of its neglect to perform a prescribed, an absolute duty, and claims against it, as damages, the sum of ten thousand dollars. The city, after a general denial, specially denied that it had knowledge or notice of the bad condition of the crossing on Magazine street, or that it neglected to repair the same.

Long before the accident, the flag-stone on which plaintiff slipped and fell, and on which — on the same day and before — others had slipped and fallen, had often been knocked out of place by drays and floats, and merely replaced, but never fastened over the gutter, except once, and then by driving a wooden pin on one side of the stone.

Not disposed to encourage any speculative litigation against the city, we have examined with care the evidence adduced on the trial. Not one of the witnesses who testified on that occasion, not even plaintiff, has attempted to exaggerate any of the facts related by them. That evidence establishes that, when the accident happened, plaintiff was sober, walking without haste, on his way to his home, and that he in no manner contributed to said accident,

The city’s counsel contends that its authorities and employees can not ever be on hand to repair breakages. That, besides, this accident occurred in the broad day, that plaintiff was guilty of carelessness, of contributive negligence, and that'.the judgment of the lower court which allows him one thousand dollars, should — -with the verdict on which it is based, be avoided and reversed.

By the twenty-sixth section of its charter, the city of New Orleans is bound to keep in repair its paved and unpaved streets, and— though not an insurer against accidents, the city is liable for those injuries which result from its neglect to maintain — in a safe condition — the sidewalks and bridges within its limits.

Dillon, on Municipal Corporations, sec. 789.

“It is the almost uniform doctrine of the courts, that municipal corporations are also liable when the wrong resulting in an injury to others, consists in a mere neglect or omission to perform an absolute and verfect, as distinguished from a discretionary, or imperfect corporate duty, or for the want of proper care of its officers or servants acting under its direction or authority in the execution of a prescribed duty.”

Dillon, Municipal Corporation, sec. 778.

If an accident were to happen by the displacement of a flag-stone spanning a-gutter, and before the city, in the discharge of an absolute duty, could have ascertained the condition of the crossing and have it repaired, it is clear that the city could not be held liable ; but the fact of such a displacement can and must be ascertained within a reasonable delay, within that delay which — according to circumstances — should be allowed to those who have the exclusive control of the streets of a city. In this instance, the flag-stone was, several times, raised from and placed over the gutter, without fastening it, by the neighbors and by the employees of the city.

That plaintiff might have avoided the accident, we admit — but how? By presuming that — on his route — there was some where a bridgeless gutter, by following another route, or by taking a cab or the cars. As well said in Hunt v. Pounal, 9th Yerm., “ In every case of damage occurring in the highway, we could suppose a state of circumstances in which the injury would not have occurred. If the team had not been too young,or restive, or old, or too headstrong, or the harness had not been defective or the carriage insufficient, no loss would have intervened. It is against these constantly occurring accidents that towns are required to guard in building highways. The traveler is not bound to see to it that his carriage is always perfect, and his team of the most manageable character and in the most perfect training, before he ventures on the highway. If the plaintiff is in the exercise of ordinary care and prudence, and the injury is attributable to the insufficiency of the road, conspiring with some accidental cause, the defendants were liable.”

The court said, in the case of the city of Joliet v. Yerley : “travelers have a right in passing along such a place — a passage way to a bridge— to have at least a secure footing, and it was the duty of the city to provide one. Loose planks, so warped that a traveler can not step upon them without dangerous oscillation, may — in the opinion of witnesses— make a safe walk over such a place, but they do not furnish a walk having that degree of safety which the law requires. „ Sidewalks are to be used by common people, and only a few of them are expected to possess the • skill of a Blondin.”

35 111. p. 65.

“Where the loss is the combined result of an accident and of a defect in the road, and the damage would not have been sustained but for the defect, although the primary cause be a pure accident; yet, if there be no fault or negligence of the plaintiff, if the accident be one which common prudence and sagacity could not have foreseen and provided against, the town is liable.”

Palmer v. Andover, 2d Cush. 600.

In this case, the defect which caused the accident was- often seen by and well known to some of those employed by the city to repair its streets, and — nevertheless—the crossing on Magazine street never was repaired. The flag-stone remained in that condition, a trap to the unsuspecting traveler, and — so far as we are informed, from the very first day on which it was knocked out of place until the accident happened.

The city is evidently liable in damages.

Both parties complain of the jury’s verdict; defendant prays that it be annulled — plaintiff, that the amount allowed him be increased. The facts and the law justify the jurors’ verdict and the decree appealed from.

That decree is affirmed with costs.


author: Egan, J. Spencer, J.

text:
    No. 6610.
    Mrs. Mary E. Kirkpatrick, Wife of O’Brien, vs. Finney & Byrnes et al.
    A donation inter vivos of movable property can only be made in two ways; by net before a notary and two witnesses, or by actual manual delivery; and one who claims a movable in virtue of a donation,'must prove that the donation was specifically made, in one or the other of those two ways.
    A transfer, or donation to his wife of furniture, or other property made by an insolvent husband is, prima facie, fraudulent and simulated; and such property may be seized by the husband’s creditors, and if seized, the burden will be on the wife to prove the real, and the bona fide character of the assignment.
    APPEAL from the Fourth District Court, parish of Orleans. Houston, J.

      Semmes & Mott and J. E. Austin for plaintiff and appellee.

      Benticlc Egan for defendants and appellants.
   The opinion of the court was delivered by

Egan, J.

This suit is between the same parties, and was tried upon the same evidence with suit No. 6620 of the docket of this court just ■decided. It was brought to enjoin the seizure under the same judgment •as in that case of certain articles of household furniture and personal property in the house occupied as a residence by plaintiff and her husband, J. J. O’Brien. The pleadings of both plaintiff and defendant are substantially and almost in terms the same as those in 6620. The evidence is not more satisfactory in support of the demand of the wife plaintiff in this case, than it was in that just decided. If entitled to any part of the property seized she has not identified it. Both claims rest substantially on a similar or the same state of facts, and are governed by the principles announced in the opinion in 6620 ; and for the reasons .stated in that case it is unnecessary to pass upon either the plea of prescription or the validity of the judgment of separation. There was -the same error in admitting in this case the evidence in the case for separation which has been remarked upon in ease 6620. We are not here called upon to pass upon the exemption under any law of any portion of the property of the husband. He is not before us asking such exemption, if entitled to it to any extent and for any reason. The claim asserted is that the property seized under execution, against the husband belongs not to him but to the wife, and is therefore and not by reason of any exemption in his favor, not liable to be seized or sold to pay his debts. To avoid misapprehension, however, we may as well remark that in our opinion the exemption of fees and salaries of office can not be extended by implication to property purchased with them or with money derived from them.

It is therefore, and for the reasons given in 6620, ordered, adjudged, and decreed that the judgment of the court below be annulled, avoided and reversed, and the injunction sued out by plaintiff be dissolved, and her claim to the property seized under the fieri facias in this case be disallowed. As, however, the parties and sureties on injunction bonds are the same in this ease and in case 6620, just decided, and as the judgment in that case awarded interest and general damages on the same debt and judgment, we simply decree in this case furthermore that the defendants Finney & Byrnes do have and recover from the plaintiff and John Phelps & Co. and Isaiah Green, sureties on injunction bond, in solido, two hundred dollars damages as counsel fees in this ease and costs of both courts.

On Rehearing.

In relation to the furniture other than the piano claimed by the plaintiff there is no proof of identity nor any of a donation by manual delivery or otherwise. It is too well settled to require the production of authority that no mere admission by the husband, whether judicial or other, of ownership in or of a donation to the wife can affect third persons or supply the place of that evidence of donation which the law requires. Neither is there any evidence of any formal act of donation or of such or any manual delivery of the piano by O’Brien to his wife so as to dispense-with the written authentic act, which as a rule is required to effect a donation inter vivos. The only evidence is that at the time he purchased the piano the husband told Grünewald, the vendor, that he wanted it for his wife. The fact that the piano was found afterward in the common domicile of the husband and the wife — a domicile which in the other case we have decreed to belong to the husband— is of itself no evidence of manual delivery. A mere purchase with intention to donate, or the declaration of such intention is not enough ; that intention must be carried out in some one of the modes prescribed by law. The general rule is the execution of a formal notarial act, O. C. 1536,1538, the only exception to which in regard to property susceptible of it is the actual manual delivery. Neither are proved in this case. Had there in fact been such real manual delivery the plaintiff might have proved it by her own testimony at least, if not by that of other witnesses. The fact that she has not done so, nor even attempted to do so, by no means strengthens her pretensions in this respect. It has often been held by this court, and such is the law, that the fact of the husband in failing or insolvent circumstances transferring or attempting to transfer to his wife’s name the whole of his property, as was done by O’Brien, is not merely evidence of fraud, but of simulation, and puts upon her the burden of proof. A piano might have been a very tasteful and appropriate gift from the husband to the wife, but that fact does not of itself prove that such was made. The same might be said of the furniture and other decorations of the common dwelling. It is not uncommon, indeed, it is most usual to furnish the marriage domicile with a piano, without making it a special gift to the wife, that it may be used by the family or for the entertainment of visitors and to gratify the taste of both. Nor, indeed, are ladies now-a-days by any moans the only performers upon that instrument. These is no sufficient reason to exempt the piano from the fate of the remainder of the furniture seized.

The court was induced to grant a rehearing owing to an error into which wo had fallen in our original decree, in allowing'attorney’s fees in this case as covered by the agreement of counsel. It is denied that such was the intention of the agreement, and although we can very well see how the defendants’ counsel, as well as the court, was misled as to the scope of this agreement, we do not think its terms cover the present case. It is therefore ordered that the decree heretofore rendered by us be so amended as to disallow the defendants’ claim for attorney’s fees in this case, and that in all other respects it is affirmed, except as to the costs of appeal, which are to be paid by the appellee.

Dissenting Opinion — On Rehearing.

Spencer, J.

In order to maintain her suit for separation of property and dissolution of the community, it is not essential that' the wife should be the owner of separate property, or that the husband should be indebted to her. It is now settled that where his affairs are so disordered and his financial embarrassments so great as to render any earnings or acquisitions of the wife by her own industry insecure, that she may maintain such a suit. Clark vs. Lowry, 10 A. 273 ; Webb vs. Bell, 24 A. 75 ; Davock vs. Darcy, 6 R. 342.

A wife’s judgment may, therefore, be good so far as it operates a separation of proporty and dissolution of community — and bad so far as it establishes title to specific property or indebtedness on part of the husband.

As against the creditors of the husband, the wife’s judgment is no evidence of her ownership of property adjudged to her or of her husband’s indebtedness to her. In other words, such a judgment does not ex proprio vigore prove or establish either ownership or indebtedness, as against the husband’s creditors ; and it is to this branch of such judgments that I think should be applied the rule so often recognized by this court, that tho wife must prove aliunde (otherwise than by her judgment) tho truth and verity of her paraphernal and dotal claims, as established by the judgment against the husband, whenever attacked or questioned by his creditors as fraudulent or simulated. The burden of proof is on her to establish her claims, and, her judgment is not even prima facie evidence thereof. 2 A. 544 ; 8 N. S. 403, 459 ; 4 L. 422 ; 11 L. 534.

I think, therefore, that the judgment obtained by plaintiff in this suit against her husband was and is valid, so far as it separates her in property and dissolves the community. But> as I have said, so far as relates to the personal property and furniture, which is. decreed to belong to tho wife, the judgment is no proof of the fact of her ownership. It was incumbont on her to show dehors that judgment her ownership. I have critically and carefully gone over the whole evidence in both records and must say that I find no proof whatever that Mrs. O’Brien ever owned tho furniture in controversy. In fact her counsel in the oral argument admitted that unless the husband’s admission in his answer to tho separation suit amounted to a donation, to a manual gift, or rather was good evidence of such gift, the wife had no claim to ownership. He rests the whole case on tho proposition that the husband had made a gift of the furniture seized to his wife, and that tho evidence, and only evidence, of that gift was found in the husband’s said answer. Now let us see what was “ claimed by the wife,” and “admitted by the husband.” She alleges that “ since her marriage with her husband, she has become the owner of certain personal property and household furniture in this.city, valued at §3000.” The husband “ admits his marriage with plaintiff and her ownership of the household furniture.” What household furniture ? The evidence taken in the case is ■equally vague as the pleadings. Only one witness even mentions where these parties were living. It is her brother. He says they were living at 459 Magazine street. That he had seen furniture in that house — parlor furniture, dining room and bod room furniture. That is all. Ho does not say that the furniture in 459 Magazine street -was that claimed by the wife as her separate property, and admitted to be such by tho husband. Tho judgment is equally at sea. It simply declares her owner of the property described in her petition. The clerk, however, (who, by the by, was the husband himself) issued a writ of possession commanding tho sheriff to put the plaintiff in possession of all the household furniture in the premises 459 Magazine street The pleadings did not ask, the evidence did not prove, nor did the judgment decree, any fight to that writ. But suppose the wife had specified the articles of furniture claimed, their location at 459 Magazine street, and value. ■Suppose the husband had, with the same minuteness admitted her ownership, and even admitted that ho had given her that specific furniture, and suppose wo were to admit that that was sufficient proof of the gift of that particular furniture in the house 459. Yet when we open the record in this suit, we are unable to find a scintilla of evidence that the furniture which toas at 459 Magazine street, in June, 1874, was or is the same furniture which tho defendants caused to he seised in the house of plaintiffs, on Jackson street, in November, 1875, and which is now in controversy. We think, therefore, that there is no legal or sufficient proof that J. J. O’Brien ever, in point of fact, gave or intended to give his ■wife the furniture under seizure and control in this case.

If the intent of the husband to givo his wife the furniture mentioned in her petition for separation were ever so clearly expressed, it would be ineffective for want of identification of the objects intended to bo given. The gift of “a lot of furniture in the city of Now Orleans, worth §3000,” is void for uncertainty, if for no other reason.

So far as relates to tho furniture, therefore, I find it unnecessary to decide whether the husband’s admission of tho wife’s ownership is sufficient proof in itself of a donation; first, because, if it were, the intent to donato would bo without effect for uncertainty as to its objects. Second, because, if its objects were specified and identified as tho furniture in No. 459 Magazine street, there is no proof of tho identity of that furniture with that seized in the house on Jackson stroet.

The case, however, is different with regard to the piano which was acquired after the dissolution of the community. After the community is dissolved — that ideal being has ceased to exist, there can be no presumption that property acquired in the separate name of the wife belongs to that being which had ceased to exist before the acquisition. But tho fact that the wife has acquired property in her own name, after the dissolution of the community, does not estop or prevent the creditors of the husband or of tho community from showing that it belongs in fact to the husband. And the fact that tho wife had no means or sources of income enabling her to make the acquisition, and that the husband had such means would be cogent proof that the husband had paid for it, and was in reality its owner, and that her title was fraudulent and simulated. Such fact being shown, the onus would certainly be on her to show affirmatively where she acquired the means of purchasing it. But in this case, as we understand her counsel, the wife does not pretend that she purchased the piano with her own funds — or rather with funds derived from any one else than her husband. Her proposition is that the husband bought the piano for and as a gift to her. I think the evidence of Grünewald, the vendor, shows that such was the fact, and that this evidence is strengthened by the inherent probabilities of the case. A piano is such an article as a newly married man would' most likely make a present of to his wife, on going to housekeeping. Such a gift is essentially free from that suspicion of fraud and simulation which would inevitably attach to the case where the husband pretended to have given all his household effects to his wife. It would be difficult to convince me of the bona fides and reality of such a transaction. It would bear the brand of falsehood on its very front.

But, as stated, I think the evidence in this case shows that the husband bought the piano for and as a present to his wife. Donations of corporal movables, accompanied by a real delivery, are subject to no formality. O. C. C. Art. 1526. But if there is no real delivery they are void, unless passed before a notary and two witnesses. G. O. Art. 1525. I think that there was a real delivery in this case — i. e. that the piano was put into the possession and under the" control of the wife, as completely as it could be in the nature of things — whore the donor and donee lived together. There was here-then“a manual gift.” The only remaining question is, .are such gifts lawful between husband and wife ? Art. 1739 O. C. C. declares that “ Either of the married couple may, either by marriage contract or during the marriage, give to the other in full property all that he or she might give to a stranger.” Art. 1742, “All donar tions made between married persons, daring marriage, though termed inter vivos, shall always be revocable.” It seems, therefore, that tho only difference between the power of giving to a stranger and that of giving, to a husband or wife consists in the revocability of the latter gifts. 'Whilst, therefore, the right and power to give, during marriage, to each other, exists in the husband and wife, courts will scrutinize rigidly such transactions where they are made to the prejudice of creditors. Such contracts are open to a double suspicion — to that attaching to all gratuitous contracts, created by Art. 1975 C. C., and" to that growing out of the relations of the parties. I think, however, that the gift of the piano in this case was not a mere simulation, and, therefore, even if made in fraud of the creditors, that it can be questioned only by the revocatory action, not by seizure. The injunction should, therefore, as to the piano, be perpetuated, with reservation to the creditor of the right to proceed by the revocatory action.

, I therefore dissent.


author: Manning, C. J.

text:
    No. 6846.
    The State ex rel. T. S. Elder vs. the Judge of the Third District Court et al.
    An appeal will not lio from an order of court made in oxocution of a. previous judgment of that court.
    One who has tacitly allowed a judgment to be rendored against him, can not assail it collaterally, on a rule taken by a third porson to carry the judgment into effect. He must p roceed by a direct action to annul.
    The execution of a judgment can be arrested in but two ways, by a suspensivo appeal, and by injunction.
    A party condemned for a loss sum than live hundred dollars can not appoal to this court, although it may appear that tho property of defendant, seized in execution of the judgment against him, is worth more than #600.
    APPLICATION for writs of mandamus and prohibition.

      McGloin & Nixon for relator.
    Henry Denis for respondents.
   The judgment of the court was delivered by

Manning, C. J.

The city of New Orleans, having obtained judgment against T. S. Elder for $175 for taxes, a writ of fieri facias issued, and a piece of real estate situated there was seized and sold by the sheriff, and adjudicated to Mrs. Adams on her bid of $226, which she paid. Tho adjudicatee then took a rulo on the sheriff to shew cause why he should not execute to her a formal act of salo, and put her in possession of tho property, which the sheriff answered by alleging that the taxes for 1872 on that property were still unpaid (the sale was for the taxes of 1874), and that he was prohibited from making title until all arrear taxes were paid. He also asked that the State and Elder be made parties to the rule. No appearance was made by pleading by any other than the sheriff, and tho court made the rule absoluto upon payment by tho adjudicatee of tho State taxes of 1872. Elder, who without filing any plea or answer, had appeared by counsel on the trial of the rule, or in its argument, prayed an appeal, which being refused, ho obtained a mandamus which he now seeks to have .decreed peremptory.

An appeal will not lie from an order made in execution of a judgment of a court. Tho proper course is to appeal from tho judgment itself. Boutté v. Executors of Boutté, not yet reported. When tho adjudication was made, its legal effect was to transfer to the purchaser all the rights and claims of the defendant in the judgment. The sheriff is thereupon bound to pass an act of sale to the purchaser, and to put him in possession of it. Winn v. Elgee, 6 Bob. 100. It is the adjudication that gives the title. The sheriffs deed is an additional muniment. of title to the purchaser, but the .defendant’s rights are divested by the judgment, the execution, and the adjudication. Jouett v. Mortimer 29 Annual, 206. Nor can the defendant, who has permitted a judgment to be entered against him without objection, attack it under cover of a rule. He must proceed against it directly by an action of nullity. Lannes v. Workingmen’ Bank, 29 Annual, 112. As he could not arrest its execution, by appealing from an order in aid or furtherance of that execution, but must resort to an injunction to stay it, (State v. Judge of 2d Court, 9 Annual, 301) so he can not after it is executed, arrest the making of title, by sotting up defects by way of answer to a rule which he should have pleaded before.

There is another objection made by the respondents, viz that this court is without jurisdiction. The property sold is' conceded to bo worth over five hundred dollars. The judgment under which it was sold is for less than that sum. It is the latter that determines tho jurisdiction of this court. IE it were a third person who is deprived of the possession of this property, tho case would be different. But where a party to a suit finds himself condemned on account of a demand less than five hundred dollars, he has no appeal though the value of the property may exceed that sum. The contestation is about the validity of the judgment. Suppose a mortgage of $226 resting upon Elder’s liroperty, which we may concede is worth several thousand dollars, is about to be enforced. No appeal would lie from the decree enforcing the mortgage by a sale. Gustine v. Oil Factory, 13 Annual, 510.

The remedy of relator is of another kind. The peremptory mandamus is refused at his costs.


text:
    No. 5982.
    E. C. Porter vs. Pierre Morére et al.
    A judgment dissolving an injunction bars tho plaintiff from obtaining a subsoauent injunction, on any of the grounds in oxisteneo prior to the judgment of dissolution, and of which he could have availed himself on the trial of the first injunction.
    The unexplained use of tho words " without prejudice,” in a judgment dissolving an inj unction, will not convert tho decree into a more j udgment of nonsuit.
    APPEAL from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      Merrick, Pace & Poster for plaintiff and appellee.

      S. Belden and Q. Buplantier for defendant.
   Tho opinion of the court was delivered by

Manning, C. J.

The plaintiff acquired certain lots in Carrollton by purchase in 1863. She was at that time a married woman, and not separated in property from her husband. The record does not disclose with whose funds the payments were made, and the legal presumption is they belonged to the community of acquets.

In January 1871 Mrs. Porter borrowed fifteen hundred dollars of ■the defendant Morere, and executed her note for that sum and a mortgage upon this property to secure its payment, being authorized by h'er husband thereto. In May 1874 Morere obtained executory process upon this mortgage, and advertised the property for sale, and this sale was-prevented by Mrs. Porter’s injunction in the following July. The-grounds of that injunction were, that she was the owner of the property advertised for sale, and that it was her homestead, and the residence of herself and her children (her husband having died in 1872) — that the note and mortgage were executed in error and through fraud, and to pay a debt of her husband — that she was not authorized by any judge to execute the mortgage after the forms provided for married women.

Morere answered this inj unction, and on hearing, it was dissolved in January 1875, whereupon the sheriff re-advertised the sale and in March following the present injunction -was obtained on these grounds — that if the property belongs to the community -which-is denied, she can not be sued individually for the debt created by her, not having accepted the community — that she was married at the time of executing the note and mortgage, and no part of the consideration of the note enured to her benefit, or to that of her separate estate — that she was not authorized! by any judge to execute these instruments, and she was incapable of binding herself for the debts óf her husband — that her signature was-obtained through fraud and by unlawful means.

To this petition the defendant pleaded res judicata and the general issue, and made the answer to the first injunction a part of the answer to the present suit. There was judgment perpetuating the injunction,, and the defendant appeals.

The brief of plaintiff’s counsel discusses elaborately the various-questions of the inability of a wife to make certain contracts, her want-of power to bind herself for her husband’s debts, the necessity of certain forms in the execution by her of a mortgage &c. We do not think those questions áre open for discussion or consideration in the present' case. The plea of res judicata is a bar to this suit. All the grounds for injunction set up in the second suit existed prior to the first, and some of them were specially pleaded in-the first petition. A judgment between the same parties dissolving an injunction is a perpetual bar to subsequent contestation upon grounds that existed anterior to the suit in which the judgment of dissolution was rendered, and of which the plaintiff in injunction might have availed himself in the first instance. McMicken v. Morgan, 9 Annual, 208. Fluker v. Davis, 12 Annual, 613. Even where the first proceeding was not an injunction, but a rule resorted to for the purpose of arresting an execution, and a judgment was rendered upon it, this court held that the judgment discharging the rule was equivalent to one dissolving an injunction, and would sustain the plea o£ res judicata. Trescott v. Lewis, 12 Annual, 197. The reason of the rule is obvious, and the statement of it is its justification. A creditor might be perpetually baffled if successive injunctions-'could issue from the same court on the same grounds, and thus the door would be opened to endless litigation.

The plaintiff however contends that a saving clause in the first judgment relieves her from the application of this plea. The injunction was dissolved ‘without prejudice.’ The decree says no more than that. Whether it means without prejudice to either party to sue hereafter for damages, or without prejudice to. any other subsequent proceeding by either, does not appear. The plaintiff insists that the addenda of those two words makes the judgment one of nonsuit, and cites the following authorities to support that position; 7 Annual, 665. This is the case of Goodrich v. Pettingale in which it is said — “ in the opinion, the court nowhere state it as a matter of judgment by them, that the attachment had been legally executed. It is merely stated that it is urged that the lots in question, having been attached in 1836 in the suit brought by Goodrich v. Pettingale, they could not be sold to his prejudice. * * * -x- decretal part of the opinion is explicit, that the injunction should be perpetuated. The reservation in favor of Goodrich was not put in the form of a decree, and amounts to nothing more than that, he should not bo prejudiced by the decree. As the supreme courj; therefore, in neither its opinion nor decree, declared the attachment valid and as the district court had not passed upon its validity at all, we can not consider the validity of the attachment a matter adjudged.” The distinction between that case and the one before us is obvious, and need not be elaborated.

Mr. Hennen’s Digest is next referred to. The first reference in that book is the case already quoted in 7th. Annual, and the next in Wells and Hunter, 5 New Series, 120 wherein it is held that “a judgment dissolving an injunction is very often as one of .nonsuit, and forms then no res judicata, but here the dissolution took place after a plea of the general issue, and the evidence was held to be in favor cf the defendant.” Precisely what was pleaded and decided in this case.

The second reference is Levistone v. Bona, 4 Rob. 459, and there the decision is, where an order of seizure and sale was enjoined by a third possessor, and his opposition to the seizure was tried in the absence of his counsel and dismissed, and the injunction dissolved, and another writ of seizure was issued which was again opposed by the same party, held the first judgment was not pleadable in bar of the second suit. Because the opponent had no opportunity of supporting his opposition, by proof, but hero there was a trial on the first issue in which both parties participated, and because the Code of Practice thus provides, art. 536.

3 Rob. 460 is Fisher v. Vose, in which the question is not touched even remotely.

21 Annual, 324 In Citizen’s Bank v. Crooks, which repeats the well established rule that when it is manifest that the plaintiff in injunction will be entitled to a new writ, if the first were dissolved, the case will be remanded to enable him to supply the evidence omitted.

These authorities do not help the plaintiff’s case, and independent •of authorities, as an original proposition, we do not think the mere words ‘without prejudice’ unexplained by the judge convert his judgment into one of nonsuit. Her injunction should have been dissolved. Therefore,

It is .ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and that the plea of res judicata is sustained, and the plaintiff’s injunction is dissolved and her suit dismissed at her costs in both courts.


text:
    No. 6864.
    State ex rel. Alice McCloskey et al. vs. the Judge of the Second District Court.
    'Whore partios have been recognized by a formal decree of court as legatees of a succession, no appeal will lie from a subseauent judgment on a rule taken by them, or on the application of tho executor, ordering him to soil property enough to pay the legacies.
    'The appropriate process to arrest an order of sale, rendered on a rule to show-cause why property should not be sold is tho process of injunction, not appeal.
    Neither tho logateo of an annuity in a succession, nor tho residuary legatee, has a right to frustrate or retard the sale of property prayed for by particular legatees for the payment of their legacies.
    APPLICATION for a mandamus.

      Thos. J. Semines and James Timony for relator.

      JE. Bermudez for respondent.
   The opinion of the court was delivered by

Manning, C. J.

Several legatees of Hugh McCloskey, having obtained a judicial recognition of their legacies contradictorily with tho ■executors of his will, took a Rule on the latter to shew cause why sufficient property should not be sold to satisfy them. One of the executors .answered that it was inopportune to sell at this time of the year. The other made no objection. The widow of the deceased, and the Roman Catholic Bishop of Derry, Ireland, intervened and joined the executor in opposing the sale. They are the relators. The first is a legatee under the will of her husband of two hundred dollars per month during her natural life. The last is the residuary legatee. The Judge made the Rule absolute, and one of the executors then filed a petition,'praying the sale of all the property, alleging that there were other legacies besides those of the plaintiffs in the Rule that were unpaid, and it was ordered accordingly. The intervenors then moved for a suspensive appeal, which was refused, and having obtained a mandamus provisionally, now pray that it be made peremptory.

The Code orders thus; — In default of funds sufficient to discharge the debts and legacies of sums of money, the testamentary executor shall causo Himself to be authorized by the court to sell the movables, and if they are insufficient, the immovables to a sufficient amount to satisfy those debts and legacies, art. 1661 new no. 1668. The legatees, having obtained judgments, could proceed only by Rule to enforce them. The rule was their process in execution of their final judgment. An appeal does not lie from an order or judgment making such rule absolute. The appeal should have been taken from the judgment for the legacies. Boutté’s Suc. Opinion Book 46 fol. 485.

The court could not do otherwise than order the sale. Some of the legatees desired it to pay them, and the executor prayed for it to pay all. The legatees who desire the payment of their legacies should not be delayed until the unanimous consent of all can be obtained, on the ground that the interest of some will be promoted by the delay.'

The order of sale having been made, its execution can not be arrested, save by an injunction. The bond which must be given to obtain that writ affords a more direct and a more adequate remedy than an appeal bond, and a party, defeated on a rule to shew cause why property should not be sold to pay a judgment, can not substitute an appeal from a judgment making that rule absolute to an injunction restraining the sale. State vs. Judge of Second Court, 9 Annual, 301.

The counsel for the relators urge that the particular legatee of the annuity prefers to have it secured by mortgage on the real estate, and does not claim its capitalization, and the residuary legatee concurs with her in opposing the sale, because such sale will result in a reduction of the legacies and leave no residuum. The legatees who pray the sale appear not to apprehend the reduction of their legacies, or are indifferent to.it, and the residuary legatee can not postpone the sale until such time as will put his loss beyond peradventure. If the legatee of the annuity can prevent the sale because she prefers to retain her mortgage upon the property as it now stands, tho property can not be sold during her life, since her annuity has that duration. What may bo the rights of the several parties upon the fund produced by the sale has not now to bo determined. The obligation of the executor to sell under the order as granted, and the inability or want of power of tho annuitant and the residuary legatee to check the sale by such appeal as was prayed, are the questions now dealt with.

Tho peremptory mandamus is refused at the costs of the relators.


text:
    No. 6833.
    State ex rel. Geo. E. Paris vs. Allen Jumel, Auditor, etc. E. C. Payne et al., Intervenors.
    Whero an act of the Legislature makes a new law for tho assessment of proporty, and a now Board of Assessors are appointed under that law, whose pay is conditioned on their doing the work of assessment, and they actually do tho work they will be entitled to tho appropriation made for the compensation of such assessors, and not any previous Board of Assessors who were fundi officio when tho work of assessment was done,
    APPEAL from the Third District Court, parish of Orleans. Monroe, J.

      Chas. S. Bice for relators and appellants.

      B. F. Jonas for intervenors and appellees.
   The opinion of the court was delivered by

Manning, C. J.

The relators allege that they were assessors for the City of New Orleans from the first day of January 1877 to the 20th. of April of same year, and are entitled to a salary for their services during that time at the rate of four thousand dollars per annum — that the legislature, on April 4th. of that year, appropriated twelve thousand five hundred dollars as compensation to the assessors of tho City, and they are entitled to be paid out of this fund — that they have demanded their warrants of the Auditor for the sums respectively due them, and that he lias refused them, whereupon they prayed and obtained a writ of mandamus.

In answer to tho rule to shew cause why the writ should not be made peremptory, tho Auditor avers that the Board of assessors appointed under an Act of April 20th. 1877 claim that this appropriation was made for their benefit — that by the terms of the act, one half of the appropriation is to bo paid to the mayor of tho City for contingent expenses and clerical force, and the other half to the new board of assessors, and that he can not pay to either of these rival claimants without an adjudication of their respective rights.

Edward C. Payne and four others intervene and allege that they constitute the new board of assessors, and that they have made the assessment for 1877, and are alone entitled to the compensation for that service provided by the legislature.

The relators, six in number, wero appointed under an act. of March 16th. 1875, which fixed tho salary of each at four thousand dollars per annum, and in addition thereto directed that they should receive a commission of five per centum on tho taxes of all taxable property, not on the rolls of 1874, which shall be discovered by them and placed on tho books of 1875, and further that for their necessary expenses, clerical labor, etc. an appropriation of seven thousand dollars should be made.Acts 1875 p. 33.

On April 20th. 1877 a new provision was made for the assessment of property in New Orleans, whereby the board of assessors was to consist of five members, each of whom should receive a salary of twenty-fivo hundred dollars per annum for the year in which a new assessment is made, and a smaller sum for other years, one half of which compensation was to be paid by the State, and the other half by the City, and for clerical fotco- and contingent expenses, the City council might provide for the expenditure of a sum not exceeding twelve thousand five hundred dollars per annum, of which one half should be paid by the State upon the warrant of the mayor. Acts 1877, p. 154.

On the 4th. day of the same month and year, tho general appropriation bill was passed which contained four several appropriations of compensation for tho assessors of the-City aggregating twelvo thousand, five hundred dollars. Acts 1877, pp. 77 — 79.

If the claim of the relators be well founded, they are entitled to be paid over seven thousand dollars for services rendered as the board of assessors for three months and twenty days, during which time it is not pretended that the assessment of 1877 was made. It is obvious that the two Acts of that year must be construed together, and when thus construed, the appropriation made for the payment of the assessors accords in amount with that prescribed as their compensation in the act creating the new board, and the legal 'inference is inevitable that the sums thus appropriated wero intended for the new board. On the other hand, if it can be conceived that the relators were intended to be tho recipients of the sums appropriated for compensation of assessors, the amount of the appropriation is wholly inadequate to the payment of salaries on the scale fixed by the act of 1875.

There is a better reason still why the intorvenors should prevail as against the relators. They did the work. The law of 1877 provides that no compensation shall be allowed any assessor in any year until he shall have performed the duties of his office, and shall have completed the rolls, p. 143. The relators were functi officio when the assessment of 1877 was made. The intervenors then constituted the board, and are alone entitled to the compensation awarded by the legislature for the assessment of that year. They do not appear however for the purpose of compelling the Auditor by mandamus to pay them, but for the purpose of opposing the claim of tho relators.

The lower court denied the relief sought by tho relators and refused the peremptory writ.

Tho judgment is affirmed.