text:
    No. 5161.
    State ex rel. Mary B. Caldwell v. The Judge of the Fourth District Court, Parish of Orleans.
    A rule by relator was taken in the court a qua to show cause why her opposition to the homologation of the report of certain experts should not be maintained, and an order of sale be rescinded. On trial, the opposition was dismissed, and the application to rescind the sale discharged. The judge a quo refused to grant an appeal. Among other reasons for it he alleged that these orders are merely interlocutory, an‘d can not operate an irreparable injury. This is an error. The facts are such as to entitle relator to an appeal. ‘
    Appeal for a mandamus to the judge of the Fourth District Court, parish of Orleans.

      Baee, Foster & Merrick, for relator Judge Injneh, in propria persona, and W. H. Bogers.

   Taliaferro, J.

The relator complains that the judge of the Fourth District Court of New Orleans refuses to grant her appeals from two orders rendered by him in a certain suit pending in that court, and numbered on its docket 41,696, which orders she alleges would work irreparable injury to her if carried into effect. She prays this court to issue a mandamus, commanding the said judge to grant the appeals prayed for to this court.

The facts presented by the petition are, that in a certain case, numbered as aforesaid, pending in the Fourth District Court of New Orleans, entitled Mary Malady v. Wm. Malady and Mary Caldwell, the plaintiff, Mary Malady seeking to have a partition made of certain property in New Orleans, consisting of houses and lots owned in common by her with the defendants, obtained an order appointing experts to examine and report, whether the property is susceptible of division in kind or not. The report of the experts was made and filed in court on the seventeenth of January, 1874, declaring that the property is not susceptible of division in kind. On the same day, an order was rendered at the instance of the plaintiff, homologating the report of the experts. On the twenty-sixth of January, within ten days of the filing in court of the report of experts, an opposition to the homologation of the report was filed on behalf of the relator, alleging various grounds of opposition. On the same day a petition was filed by Mary Malady* praying that the property should be sold; and on the thirtieth of January, an order of sale was rendered. On the tenth of February, it seems, the relator took a rule on the plaintiff to show cause why the-order of sale should not be rescinded. On the second of March both the opposition to the homologation of the report of the experts and the rule to rescind the sale were tried. The opposition was dismissed and the rule to rescind discharged.

It is from these orders that the relator complains. She was refused appeals. A rule nisi was granted, and the judge answered at some-length. He assigns various reasons for refusing the appeals prayed for, and among them, that the orders are merely interlocutory, and in his opinion, not such as can operate an irreparable injury. Upon consideration of the facts of this case as we find them, we come to a-different conclusion. The relator swears that irreparable injury will result to her from the denial of the appeals, and we think she presents-a case entitling her to the right of appeal. It is therefore ordered that the rule be made absolute, and that the respondent be ordered to grant the relator the appeals prayed for, upon compliance on her part with the law, by giving good and sufficient security, conditioned as the law directs.


source: Caselaw Access Project

author: Ludelinu, C. J.

license: Public Domain

text:
    No. 5062.
    Succession of W. O. Winn — O. K. Hawley, Public Administrator v. M. E. Richards, Executrix.
    The interference of the public administrator in this instance, on whose application defendant was removed from her trust as executrix, and himself appointed dative testamentary* executor, was officious, and the judgment is erroneous. This is not a vacant succession ? neither had the person appointed executrix failed to qualify, nor had she been removed,, nor had any of the creditors asked for her removal. .
    Appeal from the Parish Court, Parish of Rapides, Ledoux, J.

      J. Bowmcm, for plaintiff and appellee. M. Byan, for defendant- and appellant.
   Ludelinu, C. J.

In May, 1870, John S. Mayfield, claiming to be a creditor for $45,000, took a rule in the parish court to compel Mrs». Richards, the testamentary executrix, to render an account and to pay the debts of the estate. The executrix denied that Mayfield was a. creditor of the estate, and alleged that the parish court had no jurisdiction to decide upon Mayfield’s claim ratione materia. The court admitted evidence to show that Mayfield was a creditor, and ordered; the executrix to render an account, but decided that the parish court, had no jurisdiction over his claim. From the order to render am account an appeal was taken. The executrix failed for some time to render the account, whereupon the public administrator asked to be appointed dative testamentary executor, as the testamentary executrix was in contempt of the court. Shortly thereafter, the executrix filed an account which was ordered to he advertised. The public administrator then filed an exception to the filing of said account, on the grounds that she was not the qualified representative of the estate, being in contempt of the court.

Some of the creditors of the succession filed oppositions to the account, but none of them asked for the dismissal of the executrix.

There was judgment removing the executrix from her trust and appointing the public administrator dative testamentary executor, and the executrix has appealed.

The interference of the public administrator in this litigation is officious. This is not a vacant succession; nor had the person appointed executrix failed to qualify, nor had she been removed. Neither did any of the creditors ask for her removal. In a proper case, should it he brought before us, we will decide whether or not cause for the removal of the executrix exists; but we can not do so at the suit of a-stranger to the succession, showing no interest in it whatever.

It is therefore ordered and adjudged that the judgment of the lower court he reversed, and that there be judgment in favor of the executrix rejecting the demands of the public administrator, with costs in both courts.


author: Ludeling, C. J.

text:
    No. 5057.
    Succession of Henderson Randall.
    Margaret Morgan, the surviving wife and natural tutrix of the child of the deceased, opposes a creditor’s application for the administration, and claims it in her own right and as tutrix of her child.
    In the absence of proof to the contrary, it will be presumed that the laws of Mississippi were the same as those of Louisiana on the status of slavery, and that the laws of both States did not authorize slaves to enter into contracts of marriage, so as to create any civil effects.
    Therefore, the fact of deceased having married while a slave in Mississippi, did not prevent,, notwithstanding the former Wife still continued to exist, his lawfully marrying Margaret Morgan in Louisiana, where he resided after his ©mancipation. Besides, it is not in. evidence that Margaret Morgdfc. knew of his having another wife when he married her.
    Appeal from the Parish Court, parish of Madison. Dermis, J.

      John Bay aud J. 3. Orawford, for Margaret Morgan, appellant. Sealey, Morrison for Amis, appellee.
   Ludeling, C. J.

This is a contest for the administration of Henderson Eandall’s estate. Amis, a creditor, petitioned to he appointed* administrator.

Margaret Morgan, the surviving wife and natural tutrix of the child of the deceased, opposed Amis’ appointment and claimed the administration in her own right and in that of her child. And Utz, another creditor, opposed her claim and asked to be himself appointed, as the largest creditor of the estate.

There was judgment appointing Amis, and Margaret Morgan alone has appealed.

It is attempted to defeat the claim of the widow and tutrix of the heir of the deceased, by attempting to show that Henderson Randall had another wife in Mississippi, whom he had married during the existence of slavery.

In the absence of proof to the contrary, we will presume the laws of Mississippi were the same as those of Louisiana regulating the status of slavery, and that the law of both States did not authorize slaves to enter into contracts of marriage so as to create any civil effects. His having lived in Mississippi with another woman as his wife, while a slave, did not prevent his marriage in Louisiana, where he resided, after his emancipation. Besides, there is no evidence that Margaret Morgan knew of his having another wife when he married her.

Margaret Morgan, the widow of the deceased and the natural tutrix of his child, is entitled to the appointment claimed by her. Sears v. Wilson, 5 An. 689; C. C. 1037, 1114.

It is therefore ordered that the judgment of the lower court be annulled, and that there be judgment in favor of Margaret Morgan, appointing her administratrix of the succession of Henderson Randall, according to law. The appellee to pay costs of both courts.


text:
    No. 5046.
    George L. Walton v. Henry C. Young.
    The defense in this suit, instituted on two drafts drawn by defendant, payable to Ms own order, indorsed by himself, and accepted by Scott & Jaokson the drawees, is, that they wore transferred after maturity and form a part of unsettled accounts existing between himself and the drawees, upon a full settlement whereof their drafts would be found to be paid.
    Being in the possession of the drawees after maturity, the drafts were extinguished either by payment or novation, and they became mere vouchers for the amounts charged on the books of the acceptors against the defendant, and the acceptors could not resuscitate th© drafts or bills of exchange by reissuing them affcer^maturity and after they had taken them up.
    Scott & Jackson, the drawees and acceptors, could not have maintained a separate action on those drafts after having carried them through their accounts current with the drawer. Their only action against the defendant was for any balance due on the account of which said drafts fformed a part, and the, transferree of Scott & Jackson acquired no greater right than they had.
    Appeal from the Fifth Judicial District Court, parish of East Baton Rouge. Oole, J.

      Fevorot & Lemon, for plaintiff and appellee. Serrón & Oallrngher, for defendant and appellant.
   Ludeling, C. J.

The plaintiff sues defendant on two drafts drawn by the defendant, made payable to his own order, indorsed by himself and accepted by Scott & Jackson, the drawees, and on a note drawn by defendant in favor of W. S. Jackson, and by him indorsed in blank.

The answer is a general denial, and that the plaintiff is not the owner of the drafts; that they were transferred after maturity, and form a part of unsettled accounts existing between himself and the drawees, upon a full settlement whereof these drafts will be found to have been paid.

The evidence satisfies us that the drafts were transferred by the acceptors after their maturity. Being in their possession after maturity, the drafts were extinguished either by payment or novation, and they became mere vouchers for the amounts charged on the books of the acceptors against the defendant; and the acceptors could not resuscitate the drafts or bills of exchange by reissuing them after maturity and after they had taken them up. Scott and Jackson could not have maintained a separate action on those drafts after having carried them through their accounts current with the drawer. Their only action against Young was for any balance due on the account of which said drafts formed a part; and the transferree of Scott & Jackson acquired no greater right than they had.

The evidence in the record preponderates in favor of the defense set up, but as Scott & Jackson, or their representatives, are not before the court, we can not decide the question as to the payment of their account. The claim for the amount of the note seems to be established.

It is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgment in favor of the plaintiff against the defendant for the sum of four hundred and sixty-six dollars and eighty-five cents, with five per cent, per annum interest thereon from the first day of November, 1871, till paid, and costs of the lower court; and that there be judgment against the plaintiff as in case of non-suit, on his demand for the amount of the two drafts, with costs of appeal.


author: Taliaferro, J.

text:
    No. 4926.
    Succession of Wm. Cooley — On Opposition to Tableau of Distribution.
    A contest, to be paid by preference, out of the proceeds of this succession, arose in. the court below, under the homestead law, between the vendor of a lot of farniture, the lessor of a house and lot furnished with said farniture, and the tutor of a minor child left in necessitous circumstances. In this court the contest is limited to the homestead claim, and the party asserting the vendor’s privilege.
    The claim of the minor must prevail. The homestead privilege was given the highest rank with one exception, that of the vendor, and for expenses in selling the property. As there are two privileges of the vendor, that on immovables, which enjoys the highest rank, and that on movables, which holds an inferior rank, the exception can not apply to both, butonly to the one holding the first rank — that on immovables. Hence the homestead privilege must prevail over that of the vendor of movables, which itself is inferior to that of the lessor. This construction obviates all difficulty in construing the several articles of the Code bearing on the subject.
    Appeal from the Second District Court, parish of Orleans. Tissot, J.

      Thomas J, Oooley, for administrator. E. Phifyps, tutor ad hoo for the minor; A. J. Villere, executor to Fleitas, deceased; and M. E, Lwcmdcds, for Mallard, opponent and appellant.
   Taliaferro, J.

The proceeds of the succession, after paying claims of a higher grade than that of the lessor, the vendor and the homestead claim, were reduced to the sum of $549 92. For this sum a contest arose between a vendor of a lot of furniture, claiming as due him by the estate $874 50; a lessor claiming $1500 for lease of house and lot, and the tutor of the minor child of the decedent, left in necessitous circumstances, claiming a thousand dollars under the homestead law. Each of the contestants claimed superiority of privilege. In the court below judgment was rendered in favor of the minor’s claim, and the opponent claiming the vendor’s privilege, has appealed. In this court the contest is limited to the homestead claim, and the party asserting the vendor’s privilege.

The conclusion arrived at by the judge a quo, seems to be founded upon these considerations: That as by article 3263 of the Civil Code, the privilege of the vendor on movables sold by him still in the possession of the vendee, is inferior to that of the owner of the house or farm which they serve to furnish or supply, for his rents; and, as it has been determined (succession of Bouvet, 25 An. 431) that the homestead claim confers a higher privilege than that of the lessor, it must be deduced that the words “ except those for the vendor’s privilege,” have reference alone to the privilege of the vendor of real estate; that this construction obviates all difficulty in construing the several articles of the Code bearing on the subject; that the homestead privilege was given the highest rank with one exception, that of the vendor; that as there are two privileges of the vendor, that on immovables, which enjoys the highest rank, and that on movables, which holds an Inferior rank, the exception can not apply to both, but only to the ■one holding the first rank, that on immovables.

We concur with our learned brother of the' court a qua in the conclusions he arrived at in this' case, and adopt them as satisfactorily ■disposing of the otherwise. awkward confliction that would exist between the several privileges contended for in this litigation.

It is therefore ordered that the judgment' of the district court be affirmed, with costs.


text:
    No. 5049.
    Joseph Moore v. Mrs. Inez Routh Gordon.
    W&ere the objection -was that the plaintiff alleged that the indebtedness of the defendant arose from family and plantation supplies furnished in 1870 and 1871, that the first item appearing on the-plaintifi's account charged: “1870, April, account rendered $3970,“ air may hare accrued from and after first January 1870, was not, and did not purport to be for such supplies, and was too general and indefinite to admit of proof;
    Meld — That the objection was well taken and that the testimony offered should have been rejected.
    ‘The husband of defendant was the manager of the Verona plantation belonging to her, pricy' to her being separated from him by judicial decree in October 1869. During that year ■ .he reoeived supplies from the plaintiff and the sum of $3970 oharged, as before stated, as the first item on the account sued upon, is inforrod to be, for the most part, for the sup-lies of 1869. It is in proof that for the period of 1870 and 1871, for which the supplies are charged, she had always refused to supply the laborers on her plaee, which was leased out to them, and had neither authorized her husband nor any other person to contract for supplies. The plaintiff can only have judgment for $303 18, as the amount of artioles established as furnished to defendant and which went to her individual use.
    from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      L. V. Beeves, B. Lewis, Bace, Foster & MerrieTc, tfor plaintiff and appellant. William B. Spencer, and II. B. Steele, for «defendant and appellee.
   Taliaferro, J.

The plaintiff sues for $3220 28 with interest, being as he alleges for family and plantation supplies furnished the defendant during the years 1870 and 1871. The answer denies any indebtedness' whatever by the defendant to the plaintiff; avers that the plaintiff’s account, if ever really contracted, which she denies, was contracted during the time she was a married woman; that no part of the account inured to her separate benefit; that if any such indebtedness was ever contracted with the plaintiff it was done by her husband without her knowledge, consent, or procurement.

The Judge a guo considering that a portion of the articles charged «on the plaintiff’s account amounting to $543 60 inured to the separate benefit of the defendant, gave judgment in favor of the plaintiff for that amount, with five per cent, interest from the first of January, 4872. The plaintiff has appealed.’

The appellee asks that the judgment of the lower court be amended by rejecting the plaintiffs demand m toio. A bill of exceptions was taken to the ruling of the court permitting evidence to be received in relation to such portion of the first item appearing on the plaintiff’s-account charged: 1870, April, account rendered $3970,” as may have accrued from and after first January, 1870. The objection is that the plaintiff having alleged that the indebtedness of the defendant arose from family and plantation supplies furnished in 1870 and 1871; the item $3970 is not and does not purport to be for such supplies, and is too general and indefinite to admit "of proof. We think the objection was well taken and that the testimony should have been rejected.

It appears that the defendant was separated in property from her husband by judicial decree in October 1869. The c‘ Yerona” plantation, which it seems the defendant is owner of, has been occupied by her since the decree of separation of property, and supplies have been furnished the plantation by the plaintiff since that time; but there is a failure on his part to establish any contract with the defendant for the furnishing of the plantation or to show, exoept for a small amount,, that any of the articles went to her use or benefit. Prior to the date of separation of property, her husband, John Gordon, managed the place, and received in 1869 supplies from the plaintiff, and the sum of $3970 charged, as we have seen, as the first item on the account sued upon, was for the most part, we infer, for the supplies of 1869. It is in proof that the defendant leased the Yerona plantation, during the period for which these supplies are charged, to the laborers on the place, and was under no obligation to furnish them. How this state of things came about is not apparent from anything in the record. The testimony of the defendant is very clear and positive, that in leasing the plantation she has always refused to supply the laborers, and that she has never authorized her husband or any other person to enter into or engage on her part to furnish supplies.

We find no evidence of a countervailing character. After an examination of the evidence we are unable to concur with the judge a quo in the amount which the plaintiff establishes as purchased by defendant and went to her individual use. We take the amount stated by the witness R. Murdock, $303 18, to be the only sum the plaintiff is entitled to have judgment for.

It is therefore ordered that the judgment of the district court be-amended by reducing the judgment against the defendant to the sum of three hundred and three dollars and eighteen cents, with five percent. interest thereon from the first of January 1872, and as thus amended that it be affirmed.

Rehearing refused.


author: Ltjdeling-, C. J.

text:
    No. 5026.
    Joseph Hoy & Co. v. Eaton & Barstow and Sheriff.
    Some personal property oí "Weiss, attached at the suit of Joseph Hoy & Co., was ordered to* he sold as perishable proporty pending the attachment suit and bonds were taken by the-sheriff for the price thereof.
    The bonds, therefore, simply represented the property attached or the proceeds of the sale-thereof, and they belonged to Weiss, not to the sheriff, who was a mere stakeholder. There* existed no reason why the sheriff conld not seize them at the suit of anothercroditor, as the property of Weiss, subject of course to the prior attachment.
    The suspensive appeal taken by Joseph Hoy & Co., from the judgment dissolving their-attachment conld not prevent Eaton & Barstow from seizing the property attached.
    The judgment of the district court dissolving the attachment of Joseph Hoy & Co. having-been affirmed on appeal, said attachment oould not stand in the way of the rights of* Eaton & Barstow resulting from their seizure, and the proceeding by garnishment on the-part of Joseph Hoy & Co. against the sheriff after said seizure, did not affect it, or the-, rights of Eaton & Barstow under it — being res inter alios acta.

    The right,to point out property to he seized, or to object to the seizure of one species of property instead of another, is personal to the debtor, and Weiss, the debtor, not having: complained, Joseph Hoy & Co. had no right to do so.
    Appeal from the Ninth Judicial District Court, parish of Rapides» Orsborn J.

      B. A. Hunter, for plaintiffs and appellees. M. Bycm. and James 6?. White, for defendants and appellants.
   Ltjdeling-, C. J.

Eaton & Barstow, judgment creditors of one-Weiss, caused certain bonds or written obligations in the hands of the-sheriff to be seized under an execution in their favor, and Joseph Hoy & Co., also creditors of Weiss, injoined the sale on the grounds that Eaton & Barstow were not the owners of the judgment under which said bonds were seized; that said bonds were made payable to-John DeLacy, sheriff, and that the sheriff being interested, he could not himSelf seize the bonds in his own bands; that Joseph Hoy & Co. having attached the personal property of Weiss, for the proceeds of the sale whereof the bonds were taken, and a suspensive appeal having been taken from the judgment setting aside the attachment, other creditors of Weiss could not seize the property ; that Weiss had real property and it was the duty of the sheriff to seize that before seizing: Ms rights and credits.

There was judgment perpetuating the injunction, and the defendants-have appealed.

Whether Eaton & Barstow continued to be tlie owners of the judgment obtained by them against Weiss or not, is of no concern to-Joseph Hoy & Co.

The bonds seized had been given for the price of personal property of Weiss, attached at the suit of Joseph Hoy & Co., and ordered to be-sold as perishable property, pending the attachment suit. The bonds therefore simply represented the property attached or the proceeds of the sale thereof, and they belonged to Weiss and not to the sheriff. 'The sheriff was a mere stakeholder, and there existed no reason why he could not seize them as the property of Weiss, subject of course to the prior attachment. Nor did the suspensive appeal taken by Joseph Hoy & Co. from the judgment dissolving the attachment, prevent Eaton & Barstow from seizing the property attached.

The judgment of the district court dissolving the attachment having been affirmed on appeal, the attachment could not stand in the way of the rights of Eaton & Barstow resulting from their seizure; and the proceeding by garnishment by Joseph Hoy & Co. against DeLacy, ■sheriff, after sa.id seizure, did not affect it, or the rights of Eaton & Barstow under it; being res inter alios acta.

The right to point out property to be seized, or to object to the •seizure of one species of property instead of another, is personal to the debtor, and Weiss, the debtor, not having complained, Joseph Hoy & Co. have no right to do so.

It is therefore ordered and adjudged that the judgment of the lower ■court be reversed, and that there be judgment dissolving the injune1 tion with ten per cent, on the amount of the judgment as general damages and one hundred dollars as attorney’s fees, and for costs of ■both courts.


author: Howe, J. Morgan, J.

text:
    No. 3706.
    Patrick Halpin v. John L. Barringer — W. Woelper, Garnishee.
    The riglit of a garnishee to appeal for his own protection, has often been recognized by this court.
    In this case of Halpin v. Barringer, judgment was rendered for plaintiff, and a fi. fa. having issued, Woelper was made garnishee. He answered that he had certain funds deposited in his hands, in a certain suit. Upon this answer, judgment was rendered against him. This judgment is wrong.
    The judgment in the case in which Woelper was made garnishee, was against Barringer individually, in so far as the record discloses. The money in the hands of the garnishee belonged to a succession, of which Barringer was administrator. It was not liable to seizure in satisfaction of a judgment against him, and the payment of such a judgment would not release the garnishee.
    Appeal from the Eighth District Court, parish of Orleans. Dibble, J.

      D. Stewart Dennee, for plaintiff and appellee. O. JE. Whitney, for Woelper, garnishee and appellant.
   On Motion to Dismiss.

Howe, J.

A motion to dismiss has been made, on the ground that the appellant, a garnishee, can not appeal. The right of a garnishee to appeal, for his own protection, has often been recognized by this ■court. 10 M. 568; 13 La. 570; 14 La. 511; 18 La. 405; Semeritt v. McNamara, Opinion Book, No. 37, p. 557; State ex rel. Tureaud v. Parish Judge, 23 An. 717. We are not prepared to say that in this case an appeal does not lie under the rule as first laid down in the case in 10 Martin. The case differs from Roehereau v. Guidry, this day decided. Motion overruled. /

On the Merits.

Morgan, J.

In the case of Halpin v. Barringer, judgment was rendered in favor of plaintiff.

M. fa. issued against Barringer, and Woelper was made garnishee.

He answers that as clerk of .the Sixth District Court, he has in his possession and safe keeping, and subject to the order of the Sixth District Court, a check for eleven hundred dollars, which was deposited in the suit of McPhelin, administrator, v. John Maskew and als.

Upon this answer judgment was rendered against him. The judgment is wrong.

The judgment in the case in which he was made garnishee, was against Barringer, individually, in so far as the record discloses.

The money in Woelper’s hands was money belonging to a succession, of which Barringer was administrator. It was noc liable to seizure in satisfaction of a judgment against him.

In his petition, praying for garnishee process, plaintiff alleges that the fi. fa. is issued commanding the sheriff to take into his possession the property, real and personal, of Barringer or the succession of McPhelin ; but we find no judgment in the record against McPhelin, or the succession of which he seems to have been the administrator, or against his succession. McPhelin, or his succession, or the succession of which he is the administrator, is not responsible for a judgment rendered against Barringer individually, and payment of such a judgment would not release the garnishee.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided, annulled and reversed, and that there be judgment in favor of the defendant, Woelper, as in case of non-suit, plaintiff and appellee to pay the costs of this proceeding.


author: Howexj., J. Wilt, J., Ludeling, C. J.,

text:
    No. 4458.
    Chaffraix & Agar v. Christopher C. Packard et als.
    On the thirtieth of April, 1870, the plaintiffs sold to the defendants the undivided half of a tract of land situated in the parish of Plaquemines, for a certain amount cash and the remainder in three joint promissory notes, due in one, two and three years, and secured by mortgage on the property sold. On the fifth of August, 1871, said property, at the suit of Chaffraix & Agar, was sold and adjudicated to pay the first of said promissory notes. On the second of September, 1872, the said Chaffraix & Agar obtained another order of seizure and sale predicated upon the same mortgage and one of the notes — the second installment of the mortgage debt — to sell the same property previously seized and sold under the first order of seizure and sale.
    Packard, one of the purchasers, in 1870, by contract with the plaintiffe, and subsequently under the sheriff’s sale, in 1871, of a portion of the mortgaged property which had been divided into lots, has arrested by injunction the sale ordered in 1872, on the following grounds: That the said property was sold and adjudioated on the fifth of August, 1871, in the undivided half of fifteen lots, by an order in the case of the plaintiffs, Chaffraix & Agar, against the same defendants, to satisfy the mortgagees’ rights upon said lands in toto; that a sufficient amount of cash was required for the matured note and costs; that the balance of the lots were sold upon terms of payments to meet the unmatured notes ¡ that the land of said plantation was now owned in separate lots by the persons to whom they were adjudioated at said sale; that by said sale all the mortgages and privileges followed the proceeds, and that the whole of said undivided half so sold was relieved therefrom; that said plantation was no longer the joint property of these defendants; that plaintiffs’ rights sought to be enforced are extinguished; that this defendant having purchased and paid for certain distinct lots, is now the owner of the same, unincumbered, aud the seizure and attempted sale of the alleged half of said tract is an unwarranted usurpation of his rights and will work him an irreparable injury.
    These allegations do not warrant an injunction. They are inconsistent, and the legal deductions drawn from them are incorrect. The plaintiff in injunction first states that the sale on the fifth of August, 1871, was made for cash to pay the matured note, and avers that the balance of the lots were sold on credit to meet the notes not due, and yet he alleges that the sale extinguished the debt and mortgage upon the whole tract, and that he bought certain of the lots and paid for them in full, wherefore he claims to be the sole owner thereof with an unincumbered title and has the right to arrest the sale of the undivided half, although the other purchasers do not complain. The order of sale described by him and annexed to his petition did not authorize the'sale of certain of the lots for all cash, and the balance of the lots all on credit, and such sale by the sheriff would be simply null. In the opinion of this court, defendant's allegations in this case, taken altogether and as true, do not show a sale that in the least affects plaintiffs’ right to enforce the mortgage by which their notes are secured.
    If the defendant Packard, bought two lots or the whole of the undivided half of the plantation, under the order of .court aud executory process on which he relies, he only acquired thereby the rights of himself and his co-debtors, and they had no rights under the law and their contract, which could impair the plaintiffs’ right to have their unmatured notes paid according to their original contract for their payment.
    Where the debtor and owner becomes the purchaser, the sale does not extinguish the debt and mortgage not actually paid by tlie proceeds of the sale — the debtor being bound by his contract and not being able to extingush Ms debt except by payment according to his stipulations.
    If Packard had bought the whole plantation and paid the debt then due, he and the land would have remained bound for the portion not due, and the holders of the notes representing such portion could proceed to enforo the payment thereof. The sheriff could have canceled the mortgage oMy to the extent of the debt actually paid. Packard can not be put iu any better condition by being the purchaser of only a portion of the mortgaged property and paying, as he contends, the whole of his bid, which was more than his share of the debt as one of the three co-ohligors.
    A sale of mortgaged property for ca3a to pay the instalment due and on a credit to meet those not due, does not extinguish the mortgage as to the latter.
    If, under the circumstances of the purchase, the defendant Packard has to pay more than his virile share, as he seems to fear, he may have recourse upon Ms co-obligors.

      Appeal from the Second Judicial District Court, parish of Plaque-mines. Pardee, J.

      8ambola_& JDueros, for plaintiffs and appellees. Packard, appellant, in propria persona.

   Howexj., J.

On the twenty-fourth September, 1872, the plaintiffs, Chaffraix & Agar, caused executory process to issue against the three defendants and an undivided half of the Sarah plantation, sold by the former to the latter jointly, to be seized and advertised for sale, to pay a note due at two years from the date of sale, being the second of a series of three given by the purchasers and secured by mortgage on the property sold, and plaintiffs ask that the. sale be made for cash and on credit, in accordance with their act of sale and mortgage. These notes were made jointly by the' three purchasers, and indorsed by them. On the sixteenth of the next month, C. C. Packard, one of said purchasers and defendants, arrested the sale under article 739 C. P., alleging that “the said property was sold and adjudicated on the fifth August, 1871, in the undivided half of fifteen lots of ground,” by an order in the case of Chaffraix & Agar against these defendants, to satisfy the mortgagees’ rights upon said land in toto; that a sufficient amount of cash was required for the matured note and costs, the balance of the lots (in the language of his petition) were sold upon terms of payments of the unmatured notes;” that the land of said plantation is now owned in separate lots by the persons to whom they were adjudicated at said sale; that by said sale all the mortgages and privileges followed the proceeds, and the whole of said undivided half so sold was relieved therefrom; that said plantation is no longer the joint property of these defendants; that plaintiffs’ rights, sought to be enforced,.are extinguished:

First — By the extinction of the thing, the plantation having been mortgaged in block, and sold in lots or parts under the constitution. Second — By the extinction of the mortgagees’ rights.

Third — By the extinction of the debt for which the mortgage was given.

Fourth — By mortgagees’ relinquishment of mortgage which attached to proceeds of above mentioned sale, and the executory title against the joint defendants having also ceased with said sale, the plaintiffs are without right to proceed as they are attempting; that this defendant, having purchased and paid for certain distinct lots, is now sole owner of the same unencumbered, and the seizure and sale of the alleged half of said tract is an unwarranted usurpation of his rights and will work him an irreparable injury.

In our opinion these allegations do not warrant an injunction. They are inconsistent, and his legal deductions are incorrect. He first states that the sale on fifth August, 1871, was made for cash, to pay the matured note, and the balance of the lot on credit to meet those not then due, and yet he alleges that this sale extinguished this debt and mortgage upon the whole tract; and (though rather vaguely) that he bought certain of the lots and paid for them in full, and he is therefore the sole owner thereof, with an unencumbered title, and has a right to arrest the sale of the undivided half, although the other purchasers do not complain. The order of sale, described by him and annexed to his petition, did not authorize the sale of certain of the lots for all cash, and the balance of the lots all on credit, and any such sale by the sheriff would be simply null. In our opinion, his allegations, taken all together and as true, do not show a sale that in the least affects plaintiffs’ right to enforce the mortgage by which their notes are secured.

But on the trial, he introduced evidence, by which, he contends, he has shown a sale by the sheriff and a purchase by himself of two of the lots, the price of which he paid in cash, and therefore the said lots are released from the mortgage, and it is suggested that the case be remanded for the sheriff to amend his return and for further proof.

No amount of evidence, in our opinion, could establish such a sale, under or by virtue of the order of court — the executory process — which was to sell for cash sufficient to pay the note due, and on such terms of credit as were granted to the debtors by the original contract, for the payment of the installments not then due, as prescribed by article 686 C. P. By article 690, the adjudication thus made has, of itself alone, the effect of transferring to the purchaser all the rights and claims which the party in whose hands it was seized might have had to the thing adjudged.

If Mr. Packard bought two lots, or the whole of the undivided half under the above order, he only acquired thereby the rights of himself and his co-debtors, and they had no rights, under the law or their contract, which could impair the plaintiffs’ right to have their unmatured notes paid according to the original contract for their payment. See 11 La. 70, Rice v. Schmidt.

In 9 La. 11, ib. 99, and 12 R. 206, the doctrine was announced that where the debtor and owner becomes the purchaser, the sale does not extinguish the debt and mortgage, not actually paid by the proceeds of the sale, the debtor being bound by his contract and not being able-to extinguish his debt except by payment according to his stipulations.

In Pepper v. Dunlap, 16 La. 170, a leading case, it was held that property could be sold for cash to pay the note due and on credit to meet the unmatured notes according to the contract of mortgage; and in Gallier v. Garcia, 2 R. 319, commenting on this right the court refer to the above case in 16 La., and say that in such a sale the sheriff could claim only the sum actually intended to be made, and state the assumpsit of the purchaser to pay the outstanding notes.

And this seems but justice; for any other course would place the holders of the notes for the unmatured installments, secured by the same mortgage, in a worse position than that given by articles 707, 708, and 709 C. P., to the holders of second or inferior mortgages.

Now, if Mr. Packard, being an owner and debtor, had bought the whole plantation and paid the debt then due, he and the land would have remained bound for the portion not due, and the holders of the notes representing such portion could, under articles 709 and 732 C. P., proceed to enforce the payment thereof. The Sheriff according to the authorities already referred to, could have canceled the mortgage only to the extent of the debt actually paid.

And we can not see how he is placed in any better condition by being the purchaser of only a portion of the mortgaged property, and paying, as he contends, the whole of his bid, which, at most, only amounted to the sum actually due at the time, unless he alleges and shows that the plaintiffs agreed to release him and the portion of the land purchased by him, which he has not done.

The principle upon which the right of a mortgage creditor to sell for cash and on credit rests, is that every part of the property is mortgaged for the whole of the principal debt, and in the distribution of the proceeds of the pledge, the holders of the different installments of the same mortgage are entitled to participate. 1 R. 225. In this case the whole of the undivided half sold by the plaintiffs to defendants was affected by the mortgage, retained to secure each and all the notes given by the purchasers and co-proprietors. See 23 An. 411. The payment of one of the said notes did not release the mortgage as to the others. It follows then that Mr. Packard could not acquire a. part of the property free from the mortgage securing the unpaid debt except upon a new and special agreement to that effect with the holders of such debt, which was not made; and as he does not pretend that the property did not sell for enough to meet the debt due and not due, thereby necessitating a pro rata reduction thereon, he can not, upon any hypothesis, claim that any portion of the mortgaged land is exempt from any part of the unpaid debt. If, under the circumstances, he has to pay more than his virile share, as he seems to fear, he may have recourse upon his co-obligors.

The error, as to him, is in supposing that a sale of mortgaged property for cash, to pay the installment due and on credit to meet those not due, extinguishes the mortgage as to the latter. We think the law and the jurisprudence of the State clearly maintain the contrary /doctrine, and that the injunction was properly dissolved, and the plain-stiffs allowed to proceed.

Judgment affirmed.

Wilt, J.,

concurring in the decree. The plaintiffs sued out an order -of seizure and sale on the joint note of C. C. Packard, S. W. Sawyer and Mary A. Leonard, for $2833 33, secured by a special mortgage on the undivided half of the “Sarah plantation,” in the parish of Plaquemines. The defendant, Packard, injoined the foreclosure of the said mortgage, although on his own showing he only owns one-third of the mortgaged premises.

The court dissolved the injunction and he has appealed.

It appears that Packard, Sawyer and Mrs. Leonard, on the sixteenth of April, 1870, bought from the plaintiffs the undivided half of a tract of land known as the “ Sarah plantation,” in the proportion of one undivided third each, for the price of $18,000, $10,000 thereof cash, and for the balance they executed to the plaintiffs their three joint ■notes for $2833 33 each, due in one, two and three years. In the act of sale and mortgage we find the following clause: “ And in order to ■secure the payment of said promissory notes in capital and all interest thereon as aforesaid, together with all said attorney’s fees, special •mortgage in favor of said vendors, and the future holder or holders of •said notes, is hereby retained on the undivided half of said plantation or land herein conveyed, and the purchasers hereby bind themselves not to sell, alienate or encumber the same to the prejudice of this ■act.”

Now the inquiry is, is this mortgage an indivisible obligation binding each and every acre of the mortgaged premises for the payment of the entire debt, interest and attorney’s fees, or is it an obligation operating m shares, that is, binding the undivided share of each purchaser •only for the portion of debt due by him as a maker of the three joint notes? In other words, suppose one of the purchasers in indivisión should pay his part of the debt, as Packard claims to have done, would the mortgage continue on his undivided third of the mortgaged premises to secure the payment of the sums due by Sawyer and Mrs. Leonard ?

Packard claims that he paid the first note which matured on the •sixteenth of April, 1871, and that his co-obligors contributed no part •to the payment of said joint note; that this payment not only released his personal obligation as joint maker of the other two notes for like amount, but it discharged the mortgage on his undivided share of the ■mortgaged premises.

The position is untenable, both in regard to the personal obligation and the mortgage.

He was only bound to pay one-third of the first note; that was the extent of his personal obligation. The fact that he saw fit to go further and pay the amount due by his joint obligors on that note would not discharge his obligation on the other two notes, so lar as the holders thereof are concerned. Such payment would subrogate him to the right of the payee against his co-obligors. It would in no manner discharge his obligation as joint maker of the other two notes of $2,833 33 each, which had not yet matured. Now it is true one act may contain several sales and several distinct mortgages. And if the vendors and vendees in this case had so agreed, a deed and act of mortgage might have been drawn embracing three distinct sales and three distinct mortgages, wherein the plaintiffs would convey to each of the purchasers a separate quantity of land, and to secure the price thereof retain a special mortgage on that separate or distinct part of the land. In such an instrument there would be no joint obligation, as there is in the notes taken in this case, because there would be no aggregatio mentivm between the purchasers; there would be no joint tie between them, so that if one should pay and the others did not, subrogation- would arise by operation of law in favor of the one discharging the joint debt. Each having an independent contract with his vendors, would be bound by a separate obligation, and it would be impossible for the relation of joint obligors to exist between the purchasers. In such an instrument there would necessarily be three independent personal obligations and three distinct mortgages. Here, however, we have but one personal obligation and but one mortgage, to wit: the joint obligation of Packard, Sawyer and Mrs. Leonard, to pay the three notes of $2833 33 each, and to secure these notes and all interest thereon and attorney’s fees, a “special mortgage” is retained on the undivided half of the plantation, or the property herein conveyed.”

The property was sold in return for the joint consent or promise of the purchasers to pay the entire price, and a special mortgage was retained to secure the entire amount thereof. If one of the purchasers had signed the act and the other two had refused, can it be pretended -that the sale would have been completed for any part of the land T Surely not. Because the essential element of consent would be lacking. The plaintiffs never agreed to sell part of the land in return for the promise of one of the purchasers. They only agreed to sell their -entire interest in the “Sarah plantation” for the joint promise of the purchasers to pay the price, which was $18,600 — $10,000 thereof cash, -and the balance in three joint notes of $2833 33 each.

In Stewart, Hyde & Co. v. Madam Buard, 23 An. 411, where each of five heirs sold to their mother, the defendant, his share of his father’s. estate, and in order to secure the debt to each heir she mortgaged the entire property; this court held that the rescission of the sale by four of the heirs did not remove the mortgage on the entire property to-secure the notes given to the fifth heir. True it was that the act con-' tained separate sales of the slaves of the five heirs, but only one mortgage was given in which the purchaser declared that all the said property to be and remain specially mortgaged in favor of the payees of said notes or their assigns, until the full and complete payment of the same, principal and interest.”

Here the purchasers signed the act in which it is declared that in order to secure the payment of said promissory notes in capital and all interest thereon, together with all said attorney’s fees, special mortgage in favor of said vendors, and the future holder or holders of said notes, is retained on the undivided half of said plantation, or the property herein conveyed.”

' So therefore, whether the act before us contains one sale to three joint purchasers, or three separate sales, is immaterial. Because there can be no doubt that it contains but one mortgage bearing on the whole property conveyed to pay each note, and all the interest and attorney’s fees, stipulated to be paid in case it became necessary to resort to legal proceedings to collect the debt.

The note in suit has not been paid. It is secured by special mortgage on all the property conveyed by the plaintiffs to the three purchasers.

The next objection raised by the defendant in support of his injunction is, that all the mortgaged property was sold by the sheriff under the foreclosure of this mortgage on the first note; that he became the purchaser of an amount equal to his undivided third of said property,, and having paid the price said property ceased to be encumbered with the unpaid installments of said mortgage, including the note now in suit. This proposition is unsound in law, and it is not borne out by the facts disclosed in the record.

■ It no where appears in the record that the defendant purchased any part of the property under a foreclosure of the mortgage on the first-note.

If the defense were a good one, it certainly devolved on the defendant injoining the foreclosure of the mortgage herein, to establish with competent evidence the facts alleged, as the basis of said injunction. If the title, which he pretends to have acquired at the sale under the-foreclosure on the first note exists, he should have offered in evidence the deed in support of the allegation. If the deed has been destroyed,, the fact should, be proved before secondary evidenoe of title to real estate can be received.'

Now, what is tlie evidence which the defendant adduces in support of his defense that he has acquired a ne^V title to his part of the property under the foreclosure of this mortgage on the first note? He offers the writ of sale, commanding the sheriff to sell the mortgaged property for cash, sufficient to pay the amount of the first note, interest and costs, and also the amount of the attorney’s fee, and the sale to be “ on terms of credit corresponding with the terms of payment of the unmatured notes aforesaid.” The note now in suit and the one due one year later are the unmatured notes referred to. Upon this writ there is the following return :

“Received June second, 1871, and executed the within writ by seizing and taking into my possession the Sarah plantation, advertising and selling the same, and return this writ upon the showing that the amount of the same has been paid and satisfied.

“ Signed, BART DAWNEY, Sheriff.”

This return does not show that the sheriff observed the formalities required by law to make a forced sale ; he can not certify his conclusion of law that a legal sale was made; his return must state the facts, in order that the court may determine whether or not there was a sale of the property. The return does not show that notice of seizure was served upon Packard, Sawyer and Mrs. Leonard, the joint owners of the property; it does not show when, how and where the advertisement was made; when, where and how the sale was made; whether the property was appraised; to whom it was adjudicated, and at what price; and whether the purchaser complied with the terms of adjudication. In the absence of any evidence of these essential requirements having been complied with, it would be impossible to conclude that there has been a legal sale under the writ which issued to the sheriff. A statement by the sheriff of his conclusion of law on the question, whether the property was sold under the writ or not, can not supply the deficiency in his return.

In order to show that he paid the amount due under that writ, the defendant adduced a receipt signed by E. Lawrence, which is as follows: “Received by direction and for account of Mr. L. Bayhi,. sheriff, from Mr. C. C. Packard the sum of fifty-five hundred and ninety-one dollars and twenty-six cents on aceount of the two writs, of seizure and sale of Chaffraix & Agar, and E. Lawrenoe, from the District Court, parish of Plaquemines, against the said C. C. Packard, et als., and attorney’s fee and costs of court, and sheriff’s fees, as per bill on the reverse of this paper.”

The writ referred to in this receipt, in favor of Lawrence, was a writ under a different mortgage and bearing on different property than, that embraced in the mortgage now sought to be enforced.

Assuming the correctness of the statement in this receipt signed by Lawrence (and of the truth thereof there is no evidence, because Lawrence not being the sheriff, did not seize it under oath), and what does it amount to? It only confirms the statement in the return, that the sheriff “returned this writ upon the showing that the amount of the same has been paid and satisfied.” It does not prove that there was a sale according to law under the writ of the property; nor does it in any manner establish the defense that the defendant Packard acquired thereunder a new title to the property, conveyed by plaintiffs to him, Sawyer and Mrs. Leonard in indivisión.

The defendant offered in evidence a letter from E. Lawrence to the sheriff which is as follows: “ You will see by receipt given to Mr. C. C. Packard that he has paid for his proportion of the notes in suit by Ohaffraix & Agar and myself, and also handed me the cash as per receipt given him for costs, etc. You will therefore please make out his title for the property purchased by him on the Sarah plantation.”

Now the mortgage which Lawrence sought to foreclose rested on one-half of the Sarah plantation, and the mortgage of the plaintiffs rested on the other half thereof.

If this were a controversy in regard to the mortgage in favor of Lawrence as to the payment of the notes secured thereby, the letter would have been admissible. But Lawrence’s letter is no evidence against plaintiffs in this suit. If he had sworn to the truth of the statements therein contained, it would not bind the plaintiffs; it would not be admissible, because it is the mere ex parte statements of a witness . the plaintiffs have not had an opportunity to cross examine. I think, therefore, that the judge did not err in refusing to admit the letter of Lawrence in evidence against the plaintiffs, and the bill of exceptions of the defendant was not well taken. The receipt and letter of Lawrence can not establish the allegation that Packard acquired a new title to the property under the foreclosure of the mortgage on the first note. If they could be regarded as proof on this point, they do not state the fact. Nor is it stated in the sheriff’s return. If the sheriff’s return is untrue, the defendant should have had it corrected so as to conform to the truth. He can not expect this court to presume from the unsworn statement of Lawrence, a stranger to this mortgage, that he (Packard) acquired the property at a sale on the first mortgage note.

But suppose he did buy in his part of the property on the pretended foreclosure of the mortgage note, would that be a good defense to this proceeding on the second note in the same mortgage? Would such purchase give him a new title to the property 9 I think not. The defendant really acquired nothing by the adjudication of his own property to himself on the mortgage note which he subscribed jointly with two others for the price of said property. Before the pretended forced sale he owned one-third of the property, and the plaintiffs were the authors of his title; after the pretended forced sale he was merely the owner of the same property, and the plaintiffs .remained the authors of his title. The pretended sale resulted neither in a change of title nor a change of possession. The sheriff, as agent of the defendant, appointed by law to sell his property to pay his mortgage debt, offered the property for sale, and at the offering it was adjudicated to the owner or the person making the sale through the sheriff and the machinery of the law.

The defendant, to say the most, simply bid in his own property and paid the debt; there was no transfer of ownership and possession’ there was no sale.

Taking the facts as we find them in the record, the position of the defendant in this case is utterly indefensible.

Being merely the owner of an undivided third of the. mortgaged property he injoins the plaintiffs from selling any part thereof, notwithstanding their mortgage importing a confession of judgment bears on all the property mentioned in the act to secure the payment ot the notes, all the interest thereon and the attorney’s fees.

It is not pretended that the note upon which this executory process issued has been paid, or that it is in any manner discharged. It is the joint obligation of the ‘defendant and the two other purchasers. He is bound personally for one-third of the note, and the entire property is specially mortgaged to secure it.

I therefore concur in the decree in this case.

Ludeling, C. J.,

dissenting. On the thirtieth of April, 1870, Chaffraix & Agar sold to C. C. Packard, S. W. Sawyer and Mary A. Boulligny, wife of P. Leonard, the undivided half of a tract of land, situated in the parish of Plaquemines, in the proportion of one undivided third to each of the purchasers. The price stated is $18,500 — $10,000 cash, and the remainder in the three joint promissory notes of the vendees, of |>2833 33 each, with eight per cent, interest from date, due in one, two and three years, and secured by a mortgage on the property sold.

On the thirty-first day pi May, 1871, Chaffraix & Agar obtained an order of seizure and sale under said mortgage, against Packard, Sawyer and Leonard, to sell the property purchased by them to satisfy the notes above mentioned. Under the writ the property was seized and advertised, and the return of the sheriff on the writ, states that the property was sold and the writ satisfied, although it does not state to whom the property was sold and for what price.

On the twenty-first of September, 1872, the said. Chaffraix & Agar obtained another order of seizure and sale, predicated upon the same mortgage and one of the notes, the second installment of the mortgage debt, to sell the same property previously seized and sold under the first order of seizure and sale.

On the twelfth day of October, 1872, Packard obtained an injunction to prevent the sale of his property, on various grounds, to wit: That a suit had been brought, on the mortgage debt, when the first of the series of notes had matured, and'an order of seizure and sale had been obtained in May, 1871; that the property mortgaged had been surveyed and subdivided into fifteen separate lots, and sold in'pursuance with the said order-of sale for cash, to pay the matured note and all costs, and on terms of credit corresponding with the maturity of the notes not due; that by the partition of the land and sale in separate lots, the mortgage for the credit installments attached to the separate lots pro rata, and the old mortgage was extinguished; that at the sale of the lots in August, 1871, Packard bought two lots and paid the full price bid, and that said two lots are unencumbered by the mortgage now attempted to be enforced against them, and the seizure and sale thereof is unauthorized by law.

There was judgment dissolving the injunction, and the plaintiffs appealed.

On the trial the plaintiffs in injunction took two bills of exceptions. The first was to the reception of the act of mortgage, on the ground substantially that it was dead, the property mortgaged having previously been sold under an order of sale issued under said mortgage.

If the legal position stated in the objection be conceded, still that would be no reason for excluding the act of mortgage. In truth the evidence attempted to be excluded is necessary to enable the court to decide upon the merits of the pleas in the petition of injunction.

The second bill was to the ruling of the judge a quo, excluding, as irrelevant, a letter written by E. Lawrence to the sheriff of the parish of Plaquemines, who had made the sale under the writs. It is proper here to state that two writs or orders of seizure and sale had been issued againtst the property in question in favor of the vendors, E. Lawrence and Chaffraix & Agar, who had each sold to the vendees an undivided half of said Sarah plantation, and that E. Lawrence, the plaintiff in one of the suits, appears to have acted as the agent of the sheriff in making the settlement with Packard, after the sale of the property under the mortgage, and had received the payment of the price bid by Packard; and this letter was witten to the sheriff after settlement with Packard. It is as follows:

“ August 25, 1871.

■“Mr. L. Bayhi, deputy sheriff, or B. Daunoy, sheriff:

“Dear Sir — You will see by receipt given to C. C. Packard, that he has paid for proportion of the notes in suit by Chaffraix & Agar and myself, and also handed me the cash as per receipt given him for costs, etc. You will, therefore, please make out his title for the property purchased by him on the Sarah plantation.

“E. LAWRENCE.”

I think the letter should have been received as part of the res gestee. Greenl. E. 1 $ 120.

On the merits three questions are presented for solution :

Mrst — Does a sale under a mortgage extinguish that mortgage?

Second — Were the separate interests of the co-purchasers mortgaged to pay the proportions of the debts due by the others ?

Third — If so, did the purchase by Packard of two of the lots, at a sale made under the mortgage, relieve the property thus bought, from the mortgage, after he complied with his bid ?

I. It is well settled that a sale, under the mortgage, when one not the debtor buys, destroys the mortgage; and the mortgage follows the proceeds of the sale. If any part of the price was on a credit, the mortgage exists to secure the payment of the notes given for the price bid. The .old debt is extinguished by the sale, and consequently the mortgage, its accessory, is also extinguished. 5 N. S. 149; 7 N. S. 479; 16 La. 161.

II. I am of opinion that the separate interest of Packard, in the lands purchased by himself, Sawyer and Leonard, was not mortgaged for his co-purchasers’ portions of the price.

It has already been stated that Packard, Leonard and Sawyer bought an undivided half of the Sarah plantation, “in the proportion of one undivided third each,” and “they acknowledged delivery of possession for themselves, their heirs and assigns, in the proportion of one undivided third each.” They paid the cash installment, and gave their joint notes for the remainder of the price, which was secured by a mortgage, retained on the property sold.

From the care taken by the parties in the act of sale, to distinguish the proportion of interest bought by each, and in payment whereof they executed their joint notes, it appears that it was their intention to acquire such distinct parts of the property, and to mortgage such parts only for the proportion oí the price thereof due by each — in the same manner as if they had purchased by separate acts of sale.

“ Several obligations, although created by one act, have no other effect than the same obligations would have had if made by separate contracts.” C. C. art. 2084; 15 La. 594. Neither solidarity nor securityship can be presumed. Therefore, if Packard has paid his proportion of the price to Chaffraix & Agar, they should not be presumed to sell his property for the debts of others.

HI. But if it be conceded that the mortgage was given on the whole property as a security for the payment of the whole price, that the distinct portion of each buyer was mortgaged for the debt of his co-purchasers, still the sale to Packard, made by the sheriff under the mortgage, would relieve the lots bought by Packard from the mortgage, so far as the debts of his co-obligors are concerned; for as to those debts for which Packard is not personally bound, his land alone was debtor or security. When it was sold for those debts the obligation against the land had been satisfied. At that sale, quoad the debts due by his co-purchasers, Packard must be regarded as a third party, and when he paid the price bid by him he and his said lands were released from further liability under the mortgage.

The property having been subdivided and sold in separate lots, it seems that Packard bid over two-thirds of the appraisement of the property, and he paid the amount of his bid in cash, and this money was distributed pro rata among the mortgage creditors, Chaffraix & Agar receiving their proportion thereof. It is now contended that these lots thus sold under the mortgage to Packard may again be sold under the same mortgage to pay the second installment. This is clearly an error. The mortgage is indivisible — that is, the property mortgaged can not be sold for a part of the debt but must be sold for the whole debt, and the proceeds of the sale must be distributed equally on the several installments, whether due or not. If Packard paid cash instead of executing his note for the portion of the price going to the installment not then matured, and it was received by the holder of said note, he is discharged. Thus, if Packard has paid the third of the whole price of the original purchase — for which alone he was personally bound — he is discharged from personal liability. And if he has paid the amount of his bid, and the parties entitled to receive it have received the price, the land thus sold for the debts of others is free from the mortgage. The only inference to be drawn from the imperfect returns of the sheriff in the writs is that the whole Sarah plantation was sold; the returns on the writs state that the property was sold and the writ returned, satisfied.” The writs commanded the sale of the whole property to pay the whole debt, and the law so directed. We can not presume that the sheriff disregarded the commands of the law and of the writs. It is said that Packard personally owes the proportions of each of the unpaid notes for which he bound himself, which it is supposed are unpaid. But it is an error to assume that any part of the original debt is due. Prom the returns the writs were satisfied by the sale of tbe Sarah plantation — therefore these notes were extinguished, and the purchasers who bought the thirteen .other lots on a credit alone can be pursued for any portion of the price unpaid.

It seems that Packard only bought two of the fifteen lots into which-the plantation was divided; and that, he paid cash for the two lots, which was enough to satisfy the note due and all costs and attorney’s fees; and as that seems to be the only money that was distributed among the creditors, as shown by the statement of E. Lawrence, it is fair to infer that the other thirteen lots were sold on a credit; and if the sale was thus made with the consent of the parties, the mortgagees can not disregard the sale, and seize and sell the second time the two lots bought and paid for by Packard. The evidence in the record preponderates in.favor of -the plaintiff. The defective returns of the sheriff should not prejudice the plaintiffs’ rights. It is the adjudication, and not the sheriff’s return so received, which confers title. '

But I think the ends of justice will be subserved by remanding the ease, to enable the parties to have the sheriff amend his returns on the orders of seizure and sale, by stating more fully what he did under them according to law, and to enable the parties to show all the facts in regard to the payments and settlements made by Packard.

I therefore dissent from the opinion of a majority of the court.

Taliaferro, J., concurring in the dissent of C. J. Ludeling.


author: Wyly, J.

text:
    No. 3062.
    Delop & Co. v. Windsor & Randolph — S. H. Kennedy & Co. Intervenors.
    The Intervenors have not in this case, as consignees, aoquired a superior right to the cotton shipped to them, beoause it was attached by plaintiffe before the bill of lading was-delivered to said consignees.
    The intervenors had no lien on the cotton in Mississippi by reason of having furnished supplies to raise it-, because it is shown that such a right can only exist in Mississippi by virtue of a contract lien, duly recorded in the “contract lien book,” in the circuit clerk’s office, and no such contract has been produced by them. Having no lien for supplies on the ootton in Mississippi, the interveiiors did not certainly acquire one after it came into this State.
    A ohattel mortgage is unknown to our law. It can not be enforced in this State, where movables are not susceptible of being mortgaged. This court is not bound by the comity of nations to enforce a contract, which, if mado here, could not defeat the rights acquired by attachment under our own laws.
    The position taken by the intervenors that they are the owners of the cotton and therefore entitled to its proceeds, contradicts their judicial admissions in their petition of intervention, and therefore can not be permitted.
    APPEAL fromtbe Eiftb District Court, parish of Orleans. Leau-Jj. moni, J.

      JE. T. Merrich, Race & Roster, for plaintiffs and appellees. Randolph, Singleton & Browne, for intervenors and appellants.
   Wyly, J.

On the fourteenth November, 1867, the' plaintiffs sued the defendants for $4811 42, and attached fifty bales of cotton on board the steamhoat Grey Eagle, which cotton the defendants raised on their plantation in Washington county, Mississippi'.

After the attachment was levied S. H. Kennedy & Co. intervened, claiming to be creditors of the defendants in the sum of $3290, and asserting a privilege on said cotton, because their claim was for supplies and cash advanced to raise it, and also because it was consigned to them by the defendants.

The court gave judgment in favor of the plaintiffs for the amount of the net proceeds of said cotton, $2427 77, and rejected the demand of the intervenors. The intervenors have appealed.

The cotton was shipped by the defendants from Washington county, Mississippi, to S. H. Kennedy & Co., and the attachment was levied before the bill of lading was delivered to the consignees. The letter advising of the shipment of the fifty bales by the Grey Eagle, was not received by the consignees until one day after the cotton had been attached. The letter advising of the shipment of forty-nine bales by the Henry Ames, on the first of November, 1867, was not notice of the shipment of fifty bales by the Grey Eagle, on the eleventh of November, 2867, whether the forty-nine bales intended to be shipped on the Henry Ames was a part of the shipment subsequently made on the Grey Eagle, or not. The intervenors, therefore, have not, as consignees, acquired a right superior to the plaintiffs, the attaching creditors. 15 An. 260; 3 R. 106, 276; 6 An. 444; 20 An. 564; Revised Code, 3247.

The intervenors had no lien on the cotton in Mississippi by reason of having furnished supplies to raise it; because it is shown that such a right can only exist in Mississippi by virtue of a contract lien, duly recorded in the “ contract lien book,” in the circuit clerk’s office, and no such contract has been produced by them. Having no lien for supplies on the cotton in Mississippi, the intervenors did not certainly acquire one after it came into this State.

They produce, however, a chattel mortgage which the defendants gave them in March, 1867, on all the mules, farming implements, and the crops to be grown on their plantation in Washington county, Mississippi, to secure an indebtedness of $3000, for plantation supplies furnished and to be furnished by the intervenors to the defendants.

As a chattle mortgage is unknown to our law, it can not be enforced in this State. Movables are not susceptible of being mortgaged. Revised Code 3289. We are not bound by the comity of nations to enforce a contract, which, if made here, could not defeat the rights acquired by attachment under our own laws. See the case of Hughes, Hyllestead & Co. v. Klingender Brothers, 14 An. 845, and authorities there cited.

But the intervenors contend that by the laws of Mississippi the legal title of the property vested in them by virtue of the chattle mortgage, and therefore, as owners, they are entitled to the cotton or its pro* ceeds.

This position contradicts their judicial admissions in the petition of intervention. Setting up no claim to the ownership of the thing, they allege “that your petitioners are entitled to the possession of said cotton as commission merchants, agents and factors j” and claiming that the defendants are indebted to them $3290, they pray judgment against the defendants for the amount “ to be paid by lien and privilege out of the proceeds.arising from the sale of said cotton.” * *

The intervenors can not claim as owners of the thing, without contradicting their judicial admissions, which they can not do.

Our conclusion is that the judgment of the court below is correct.

Judgment affirmed.

Rehearing refused.


author: WxLt, J.

text:
    No. 5106.
    Succession of William Richardson — Opposition of Elizabeth McQueen et al.
    It is not necessary that tlie appellant should sign the appeal bond} but an appeal granted to Elizabeth McQueen and others can not be perfected by an appeal bond signed by M. McQueen, as principal, and C. B. Austin, as security. The surety of M. McQueen can not be regarded as the surety of Elizabeth McQueen.
    Appeal from th:- Parish Court, parish of East Feliciana. Haralson,, J.

      WiohUffe, Fisher & Lealce, for administrator and appellee* Adams, Kernon & Lyons, for opponents and appellants.
   WxLt, J.

The motion to dismiss this appeal because the opponents, who are the appellants, have not given bond, must prevail. The only bond we find in the record is subscribed by M. McQueen, as principal, and Charles B. Austin, as security.

It is not necessary that the appellant should sign the appeal bond; but an appeal granted to Elizabeth McQueen and others can not be perfected by an appeal bond signed by M. McQueen, as principal, and Charles B. Austin, as security. The surety of M. McQueen can not be regarded as the surety of Elizabeth McQueen.

It is therefore ordered that the appeal herein be dismissed at the costs of the appellants.


text:
    No. 5035.
    W. J. S. Johnson v. J. C. Dunbar, Administrator. J. C. Dunbar v. W. J. S. Johnson — Consolidated.
    To tlie demand of Dunbar individually against Johnson on a promissory note given formules, ■which, the former sold to the latter, the defense is the plea of eviction. Johnson acquiring the mules from Dunbar individually permitted them to be sold, without resistance, for a certain tax due by the succession of one Crouch, of which Dunbar was administrator, and repurchased the same at that sale. That this change of title in his hands amounted to an eviction constituting a valid defense to the payment of the note he gave Dunbar individually for the price of the mules, is hardly worthy of consideration.
    Where in regard to a price of land belonging to the succession of Crouch, bought by Johnson at a sale by the revenue tax collector of the United States, it was contended that the administrator of said succession could not disregard Johnson’s title and attack it collaterally by proceeding to sell the said land under order of the probate court j
    Held — That the pretended sale consisted in a mere notarial conveyance, without an offering and an adjudication, made twenty-five miles from the place where the distraining was effected; that such a conveyance was an absolute nullity, and that the administrator of the succession was not bound to bring a direct action to have the nullity thereof pronounced.
    The bill of exceptions to the ruling of the court a qua, admitting proof to show the feet that there was no adjudication of the property to Johnson by the tax collector, was not well taken. There was actually no sale, and the administrator was not bound to tender to Johnson the price of the pretended sale.
    Besides, the next year after the acquisition of his pretended title, Johnson rented the land in controversy from the administrator of the succession — thereby, in effect, conceding Ms want of title and acknowledging that of his adversary.
    Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      B. J. Bowman, for Johnson. Manning, for Dunbar and the succession of Crouch.
   Wyly, J.

J. C. Dunbar, administrator of the succession of Winder ■Crouch, advertised for sale, under an order of the parish court, all the lands belonging to said succession.

W. J. S. Johnson claiming to be the owner by purchase from the United States revenue tax collector of one hundred and forty-seven acres of said lands, injoined the sale thereof, alleging that he bought said land at public sale made to collect “ the revenue tax due by the succession of Crouch to the United States, amounting to nineteen hundred dollars, sixteen hundred dollars of which was paid by him as purchase price of said laud, and which inured, to the benefit of said estate.”

This is the first suit. The second suit is the demand of Dunbar individually agaiusfc Johnson on a promissory note for seven hundred dollars for mules which he sold him. The defense to which is eviction, that the mules were sold also to him by the revenue tax collector for the tax due by the succession of Crouch. That Johnson acquiring the mules from Dunbar individually, permitted them to be sold, without resistance, for the tax due by the succession of Croueb and purchased the same, and that this change of title in his hands amounted to an eviction constituting a valid defense to the note he gave Dunbar for the price of the mules, is a defense hardly worthy of the serious consideration of this, court. Johnson could certainly have successfully resisted the sale of his property for debt of the succession. The defense is manifestly baseless.

In regard to the land, it is contended by Johnson that the administrator of the succession of Crouch can not disregard his title and attack it collaterally by proceeding to sell the same under order of the probate court. In reply to this objection it is urged that the pretended sale by the revenue tax collector was an absolute nullity, because there was no offering and adjudication of the land, and that the mere naked transfer by the notarial act from the tax collector to Johnson at Alexandria, twenty-five miles from where the property is situated, did not convey the semblance of a title to him. Advertisement, an offering, and an adjudication are, of course, essential to make a forced sale, and the act of Congress requires that “ the place proposed for sale shall not be more than five miles distant from the place of making, the distraint.’’

In the case at bar the pretended sale consisted in a mere notaría* conveyance, without an offering and an adjudication, made twenty-five miles from the place of distraint. Such a conveyance was an absolute nullity; and the administrator of the succession of Crouch was not bound to bring a direct action in order to have the nullity thereof pronounced. Where there were an offering and an adjudication, the forced sale can not be attacked collaterally on account of informalities in the proceeding amounting to a relative nullity. It is the adjudication that transfers the ownership ; and when Johnson opposed his title to the proceeding of the administrator of the succession of Crouch, it was competen t for the latter to show as a fact that there was no adj udication by the tax collector to him of the property; and therefore there was no sale. The bill of exceptions taken to the ruling of the court admitting the proof to show the fact, was not, therefore, well taken ; there was in fact no sale, and the administrator was not bound to tender to Johnson the price of the pretended sale.

Besides, the next year after the acquisition of his pretended title, Johnson rented the land in controversy from the administrator of the-succession of Crouch, thereby, in effect, conceding' his want of title' and acknowledging that of his adversary.

It is therefore ordered that the judgment herein perpetuating'the injunction of Johnson; and rejecting the demand of Dunbar on" the’ note, be annulled, and it'is further'ordered that1 said injunction be dissolved with-costs and'that the'administrator’of the succession; of' Winder Crouch recover from W. J. S. Johnson two hundred dollars damages (attorneys’ fees) for the illegal injunction herein ; it is further ordered that John C. Dunbar recover of W. J. S. Johnson seven hundred dollars with five per cent, per annum thereon from the first day of January, 1873, and costs of both courts.

Ludei.ing, C. J. dissenting.

Eehearing refused.


author: Morgan, J.

text:
    No. 4976.
    Mrs. Anne Ford v. Mrs. Anne Kittredge, Administratrix.
    The creditor of a succession can call upon the courts of competent jurisdiction to see that the administration thereof be properly conducted.
    This court sees no warrant in the law of Louisiana for answering in the affirmative thfr following questions: If' a wife sue her husband for a separation from bed and board and a dissolution of the community which existed between them, and judgment is pronounced in her favor, dissolving the community j and if, after living apart for several years, and no judgment of divorce has been pronounced between them, they become reconciled, does reconciliation wipe out the judgment of separation and replace the parties in the same position they were in before it was rendered ? Does property acquired by either of the spouses between the time the judgment was rendered and the reconciliation fall into the community ?
    There is no article in the Louisiana Code which corresponds with the article 1451 of the Codo Hapoleon. It was the law of France, even before the adoption of that code, that a community which had been dissolved might be re-established. Here there is no such law.
    The administratrix, in this case, has not filed an account of her administration within a twelvemonth. The law mates this her duty, for the non-performance of which, the-penalty is dismissal from office.
    Appeal from the Parish Court, parish of Assumption. Tete, J.

      he Blanc & Walter Guión, for plaintiff and appellant. Nichols & Folse, for defendant and appellee.
   Morgan, J.

In 1855, plaintiff instituted suit, in which she prayed to be separated from bed and board from her husband, and also for a dissolving of the community. The same judgment which pronounced the separation dissolved the community of acquets and gains which had existed between them, and reserved the question of the settlement of the community for a future occasion. Subsequently, by agreement between the parties, plaintiff’s rights in the community were fixed at ten thousand dollars, for which judgment was rendered in her favor. Up to and including the year 1860, she received $1000 per annum from her husband as interest on this judgment. She then received £30,. £100, and in 1864 £1000. Shortly after the judgment of separation, she went to Ireland, where she taught school, realizing therefrom more than £1200. She received £50 from some friends in Ireland. She. sold the good will of her school and her furniture for £150. Her funds were increased by the rise in consols, in which she had invested* She left Ireland in 1866, taking with her eleven or twelve thousand dollars, and left in the bank in Dublin £1200. In 1866, she applied to. her husband (from whom she was still separated) to invest her means for her, which he told her he could do, with Dr. E. E. Kittredge’s name-as security. She sent to Ireland for her £ 1200, which came to her in a sterling bill of exchange. This bill was sent to her merchants here, who sold the same for about $8000. The proceeds were given by the merchants to her husband.

She claims to be the owner of a note which reads as follows:

“ Assumption, La., June 7, 1867.

“ $8000. On the first day of January, 1869, we or either of us-promise to pay to our order at the office of the recorder of this parish, the sum. of eight thousand dollars, value received, with interest at the rate of eight per cent, per annum from maturity till paid.

“Signed, “F. W. PIKE,

“E. E. KITTREDGE.”

The note is indorsed in blank by the makers. Plaintiff says it belongs to her.

No proceedings were ever taken to convert the judgment of separation into a divorce, and in May, 1868, thirteen years after it was rendered, plaintiff and her husband became reconciled, and are now living together as man and wife. E. E. Kittredge died. His succession was opened. His widow was appointed administratrix thereof.

This suit is instituted by Mrs. Ford, for the sole purpose of having Mrs. Kittredge destituted from her trust as administratrix, for maladministration and failure to perform her duties. In this she is joined by her husband. The petition reads The petition of Mrs. Anne Ford, , wife, duly separated in property, and from bed and board from her husband Joseph D. Ford, and of said Ford, etc.”

The allegation that she is separated from bed and board is not correct, inasmuch as she was living with him when this suit was instituted. Whether she is or not separate in property from him, or whether she was so or not when the rights which she is now asserting were acquired, is another matter which will be presently inquired into.

It is admitted by counsel in their brief that it is necessary that plaintiff be a creditor of the succession of Dr. Kittredge, in order that she be permitted to interfere with its administration.” The first exception which the defendant pleads to the action is that neither¿Mrs. Ford nor her'husband are creditors of the succession.

We have copied the instrument which the plaintiff says is the evidence of her debt. In the record we find the following document r

“ Parish of Assumption, La., June 2,1871. I hereby acknowledge and recognize the annexed promissory note for eight thousand^dollars ($8000) drawn by Dr. E. E. Kittredge and Francis W. Pike, jointly and severally to their own order and by them indorsed in blank, of which Mrs. Anne Ford is the present holder, to be a just and valid claim against the succession of Dr. E. E. Kittredge, to be paid in due course of administration.”

(Signed) ANNE E. KITTREDGE, Administratrix.

This, it seems to us, is the liquidation and acknowledgment of the claim, in conformity with the provisions of the 985th article of the Code of Practice. But she says that when this acknowledgment was made she was ignorant of the fact that the succession of Kittredge had been discharged from responsibility thereon. She say's it was discharged because Kittredge was only Pike’s security, and that as time had been given to Pike without Kittredge’s consent, he is discharged. Pike says that Kittredge was only his security. As between Pike and Kittredge this may be true, although it would be difficult to make out of the document which we have copied above, a contract of suretyship. It seems to us to be a simple promissory note made by two parties who bound themselves towards the world as debtors for the whole amount stipulated therein. Be this as it may, the note was handed to Dr. Ford by Pike, and nothing in his testimony shows that Ford considered it as anything more or less than a promissory note, drawn by two persons, both of whom were liable for the full amount thereof. The time given to Pike, when the note fell due, consists in postponing payment for a certain time upon Pike’s paying the interest.

On the thirteenth of July, 1870, the defendant instituted suit against Pike, claiming from him $8000 upon the ground that the note in question was a mere matter of suretyship as between Pike and Kittredge, alleging that the note was then in the hands of Dr. Ford, as the agent of his wife, who was demanding payment thereof. The acknowledgment of indebtedness on the back of the note was made nearly a year after this suit against Pike was instituted. What became of the suit does not appear.

Under these circumstances it appears to us that as between plaintiff and defendant, plaintiff does show an indebtedness on the part of the succession of Kittredge, and it follows that as a creditor she can call upon the courts to see that the administration thereof is properly conducted.

But the defendant contends further that Mrs. Ford is not the owner of the note. She says that it belongs to Dr. Ford. She contends that the judgment dissolving the community between plaintiff and her husband was a mere incident to the judgment of separation from bed and board; that .in that judgment she made claim to the restitution of no dotal or paraphernal funds — that she claimed, with regard to property, nothing but a settlement of the community — and that inasmuch as a reconciliation has taken place between her husband and herself, the judgment of separation from bed and board and the judgment dissolving the community, became ipso facto null and void, and that they were, by the reconciliation, replaced in the same situation in which they were prior to the institution of the proceedings which-resulted in a separation from bed and board and a dissolution of the community.

Thus this question is now for the .first time presented for solution, viz: If a wife sue her husband for separation from bed and board and a dissolution of the community which existed between them, and judgment is pronounced in her iavor, and dissolving the community, and if, after being apart for several years, and no judgment of divorce has been pronounced between them, they become reconciled, does the reconciliation wipe out the judgment of separation and replace the parties in the position they were in before it was rendered ? Does property acquired by either of the spouses between the time the judgment was rendered and the reconciliation fall into the community? We see no warrant in the law of Louisiana for answering these questions in the affirmative.

Counsel for appellee say that these questions have been frequently' passed upon in France, and he cites Troplong, Contrat du Mariage, vol. 2, No. 1466, who says that according to the contract law of France reconciliation is sufficient to efface the separation. “ Therefore, as a general rule', separation of property which resulted from a separation, from bed and board, ceased by the fact of reconciliation, without publication, without a public act, without any express declaration.”

Marcadé, vol. 5, p, 588, sec. 2, goes, perhaps, further. He says: Les effets de la communauté ainsi rétablie remontent au jour méme du mariage, en sorte que, sauf l’exception ci-aprés, les époux sont réputés n’avoir jamais cessé d’étre eommuns en biens. Ainsi, les biens qu’ils ont pu acheter pendant la séparation, aujourd’hni non avenue, et qui seraient entrés dans la communauté, appartienneut a cette communauté, et les successions ou donations mobiliéres qui leur sont arrivées y tombent également. * * * En un mot, la communauté est réputée avoir toujours duré; seulement, les actes valablement faits par la femme, qui durant la communauté n’auraient pu émaner que du mari, conservent la méme efficacité que s’ils avaient été faits par luí * * * Que gi cette portion de la fortune mobiliére a été employée par la femme a 1’acquisition d’un immeuble, eet immeuble devient un conquét, comme si, la communauté durant, il avait été acheté par le mari au moyen du capital que la femme y a employé.’’ Duranton expresses similar views. *

• But these authors, in the extracts which we have quoted', ate Commenting upon the article 1451 of the Code Napoleon, Which provides-1 that’the’community which is dissolved by the separation from bed and' board; or simply"of property, may be ré-established1 by the consent of the- parties; it can not be excep t by an act- passed' before a n otary. In' this case; the re-established community retroácts to the- day of marriage; things are- placed in the condition that'they would have been' if there had been no separation. But there is no article in the Louisiana code which corresponds with the article 1451 of the Code Napoleon. Mr. Troplong, in commenting upon the second paragraph of this article (which provides that the- consent of the parties must be evidenced by an act passed before a notary public), says that, by the ancient law of France, this formality was not necessary. Still it was the law of France, even before the adoption of- the code, that a community which had-been dissolved might be re-established.- Here there is- no such law, and we do not think that we can make one.

Having found that the plaintiff was separated in property from her husband ; that the note which is the basis of her claim is her property, and that it is a debt due by the succession of Eittredge, we have now to decide whether the defendant should be deprived of her trust as! administratrix thereof.

. She has not filed an account of her administration within a twelvemonth. The law makes this her duty, for the nonperformance of which the penalty is dismissal from office. B. S. sec. 9.

She contends that she has no account to render to any one, as she has had no funds in her hands since her last account. Admitting this-proposition to be true, which-, however, it is not necessary for us to decide, and -with reference to which we express no opinion, still the record satisfies us that if she has no funds in hand, it is because she1 has not properly discharged the duties of her office. The largest portion of the estate upon which she is now administering has been sold, and at the sale she purchased largely. The sale was effected in a partition suit-, without objection from her. Such a proceeding, if permissible, can not certainly prejudice creditors. The sale, however, was made and the amount of her bid must be in her hands. The circumstances under which the property was sold rendered it only the more necessary that she should have filed an account in accordance with the law. The opinion to which we have arrived, renders it-unnecessary that we should pass upon plaintiff’s bills of exceptions.

Itis therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that the defendant be removed from the office of administratrix of th'e estate of her late husband E. E. Eittredge, the defendant to pay th‘e costé iñ both courts.

Eehearing refused.