author: Marr, J. ■Spencer, J.

text:
    No. 7045.
    Mrs. Elise Labauve vs. Henry R. Slack, Executor.
    When the heirs are either present or represented in the State, it is necessary to join-, them with the executor, as parties to an hypothecary action. In such ease the-executor alone is not capable oí standing in judgment.
    A proceeding in execution of a judgment of this court which is not in conformity-with the terms of the judgment, may be enjoined.
    In an hypothecary action against a third possessor who is not the judgment debtor.. no other property is liable to seizure but that on which the.mortgage rests.
    A judgment against defendants not legally capable of standing in judgment is a, nullity, and can not be pleaded as res adjudícala.

    APPEAL from the Fifth Judicial District Court, parish of Iberville.. McVea, J.

      Barrow & Pope for plaintiff and appellee.

      Samuel Matthews, and Merrick, Race & Foster for Joseph Woolfolk,. appellant.
    • The opinion of the court was delivered by Marr, J., on the original hearing, and on the application for a rehearing by Spencer, J.
   Marr, J.

Zenon Labauve recovered two judgments against Mrs. Emily Woolfolk, and against her son Joseph B. Woolfolk for one half the amount in each case, which were inscribed August, 1865, as judicial; mortgages against their real property in Iberville parish. In September following Joseph sold to his brother, Austin Woolfolk, Jr., his undivided interest, as one of the heirs of their father, Austin Woolfolk, Sr., and of their brother Samuel, being nineteen one hundred and sixtieths-of a plantation and three separate parcels of land in Iberville. This undivided interest, therefore, went into the ownership of Austin Woolfolk subject to the two judicial mortgages which rested upon it for Joseph’s-half of the two judgments in favor of Labauve.

Joseph B. Woolfolk was adjudicated a bankrupt; and on the 22d June, 1869, he was finally discharged from debts and liabilities existing on the 29th February, 1868. This terminated his personal liability on the two judgments.

In August, 1869, on their .petition fllqd 10th June, 1869, Austin Wool-folk and his sisters Sarah and Louisiana obtained a judgment in the parish court against their mother, Mrs. Emily Woolfolk, decreeing a partition, and a sale for partition, of the property of the succession of Austin Woolfolk, Sr. Joseph Woolfolk was not a party to this suit; nor does there seem to have been any occasion for making him a party, since four years before he had sold his entire interest in the property to his brother Austin; and if he had any pecuniary rights in the succession or against any person whomsoever, prior to the 29th February, 1868, they passed to and vested in his assignee in bankruptcy; and he had not the legal capacity to assert or to enforce them.

Certain creditors of Mrs. Emily Woolfolk intervened and opposed the sale, and arrested it by-injunction. The case came before this court, in 1870, on the appeal of the Woolfolk heirs from the judgment overruling their motion to dissolve the injunction. This appeal was dismissed on the ground that the judgment was interlocutory ; 22 An. 206. The case having been remanded to the parish court, the heirs excepted to the jurisdiction of that court to entertain the intervention of the creditors; and the judgment of the parish court maintaining the exception was affirmed by this court. 24 An. 282.

Meantime Zenon Labauve died; and Mrs. Elise Labauve, widow and usufructuary, brought suit in the district court to annul the judgment of partition, and she enjoined the sale. This case terminated in May, 1874, by a decree of this court, affirming the judgment of the district court which dismissed the suit, and dissolved the injunction with $550 damages. 26 An. 440. There being no longer any obstacle to the execution of the judgment of the parish court in the partition suit, the property was sold at public auction, on the 3d December, 1874.

It may as well be stated here that Mrs. Labauve, Hernandez, and others, creditors of Mrs. Emily Woolfolk, intervened in the parish court, and opposed the homologation of the partition. We were of opinion that the parish court was without jurisdiction of the partition suit, and that the proceedings were void ab initio, because the succession of Woolfolk had been closed before that suit was brought; and the judgment dismissing the intervention and opposition of the creditors was reversed. On rehearing, we saw no reason to change that opinion; but a more careful examination of the record showed that there was no proceeding pending to homologate the partition, at the time these creditors intervened; and our final decree dismissed their intervention and opposition as in case of nonsuit. 30 An. 140.

In 1871 Austin Woolfolk, Jr., died, leaving a last will by which, reserving to his mother her portion as forced heir, one third, he gave one half the residue of his succession to his brother Joseph, and the other half, in equal portions, to his sisters Sarah and Louisiana. That is : to the mother, one third: to Joseph, one third, and to Sarah and Louisiana, each, one sixth. At the sale for partition the entire real property’in Iberville, which belonged in common to the three surviving Woolfolk' heirs and their mother, was adjudicated to Joseph and his two sisters in equal undivided portions.

In July, 1874, shortly after the decision reported in 26 An. 440, Mrs. Labauve brought suit against Henry R. Slack, testamentary executor of Austin Woolfolk, Jr., to subject to the two judicial mortgages already mentioned the nineteen one hundred and sixtieths sold by Joseph to Austin Woolfolk in 1865.

Slack plead the bankruptcy of Joseph and his discharge as an ex-tinguishment of the judgments : that the suit was an attempt to hold Joseph personally liable notwithstanding his discharge; and that it was without legal foundation. Joseph intervened and adopted the defenses set up by Slack ; and he plead other matter, which need not now be noticed further than to say that it constituted no defense to the action.

From the judgment of the district court rejecting her demand Mrs. Labauve appealed ; and this court reversed the judgment of the district court, and decreed that the property be seized and sold, and the proceeds applied to the two judgments in favor of Labauve. 28 An. 296.

On this decree a writ issued commanding the sheriff to seize and sell “ nineteen one hundrel.and sixteenth parts,” 19-116, of the plantation and the three parcels of land, of which Austin Woolfolk had owned nineteen one hundred and sixtieths by purchase from Joseph, and the like quantity in his own right as one of the heirs of his father and brother. The sheriff made the seizure in accordance with the writ, and advertised the property for sale on the 2d September, 1876. On the 1st September, this suit was brought by Joseph B. Woolfolk, Louisiana T. Woolfolk, joined and assisted by her husband, Henry R. Slack, ail residing in Iberville parish, and Sarah J. Woolfolk, joined and assisted by her husband William H. Simrall, residing in the parish of Pointe Coupee, to enjoin the sale. The injunction was granted on that day; and on the same day, 1st September, as is stated in the return, the sheriff, by order of the attorneys of Mrs. Labauve, released the seizure, and returned the writ unsatisfied.

The petition charges, substantially : That Mrs. Labauve had made herself a party to the partition suit by her several interventions and injunctions : that she is bound by the proceedings; and that they constitute res adjudicata agains: her.

That the sale at which petitioners purchased was a public judicial sale, by which pre-existing mortgages were extinguished as against the property, and transferred to the proceeds; That petitioners have always been ready and willing to' pay to Mrs. Labauve the proportion of the proceeds due to the mortgage held by her, which had never been demanded ; and that they now tender the amount to her.

That Sarah and Louisiana were never parties to the suit of Mrs. Labauve v. Slack, Executor ; and they are not bound by the judgment rendered therein ; and that Mrs. Labauve has no judgment of the Supreme Court authorizing the order of seizure and sale which she caused to issue, by virtue of which the sheriff has seized and advertised their property for sale.

The prayer is for an injunction restraining and prohibiting Mrs. Labauve and the sheriff from further proceeding to execute the order of seizure and sale, by virtue of which he has seized and advertised for sale nineteen one hundred and sixteenths undivided parts of petitioner’s property on the 2d September, 1876.”

Petitioners also pray that all mortgages existing on the property at the date of the partition sale, 3d December, 1874, resulting from the judgments of Zenon Labauve against Emily Woolfolk and Joseph B. Woolfolk, be decreed to be extinguished and no longer existing against the property of petitioners’ purchased at the partition sale ; and that they be canceled and erased.

Mrs. Labauve excepted on four grounds :

1. That all the matters set up against the execution of the judgment in the suit of Labauve v. Slack could have been and were made grounds of defense; and can not now be plead as grounds of injunction.

2. That the judgment in the suit against Slack is res adjudícala against all the parties, they all being represented by him as executor.

3. That the petition asks the court to enjoin a judgment of the Supreme Court.

4. That the seizure of more than the interest of the mortgage debtor is no ground for these parties to enjoin the sale and execution, much less for that portion covered by the mortgage.

The exception concludes with a prayer for the dissolution of the injunction, with twenty per cent general damages, ten per cent interest, and five hundred dollars special damages for attorney’s fees.

The judgment of the district court overruled the exception as to Sarah and Louisiana, but maintained it, and dissolved the injunction as to Joseph Woolfolk, with fifty dollars damages. He appealed : and Mrs. Labauve prays in her answer that the judgment appealed from be so amended as to allow her twenty per cent damages, and $500 for attorney’s fees, as claimed in the exception.

We do not find in the transcript any reasons assigned by the districfc judge for this judgment. As no appeal was taken from the judgment as to Sarah and Louisiana, we have no power to review it; and our inquiry must be limited to the judgment against Joseph Woolfolk.

First. As to the first ground of exception, it suffices to say thát the want of proper parties was not plead in the suit against Slack, executor ; nor does it in any way appear that this defense was brought to the notice of the court or passed upon by the court.

Second. As to the second ground: the suit of Labauve v. Slack, executor, was an hypothecary action, a real action. C. P. art. 4, 41, 42, 61, 62, 68. Elwyn v. Jackson, 14 La. 413, 414 ; and neither in the hypothecary action, nor in any other real action, does the testamentary executor represent the heirs who are present or represented in the State. He is without legal capacity to stand in judgment alone in a real action if the heirs are either present or represented in the State; and all the heirs present or represented miist be joined with the executor as defendants. C. P. art. 123 ; Cronan v. Executors of McDonogh, 9 An. 302.

Third. As to the third ground: The decree of the Supreme Oourt ordered to be seized and sold nineteen one hundred and sixtieths. The writ did not conform to the decree. It commanded the sheriff to seize and sell nineteen one hundred and sixteenths ; and he followed the writ in the seizure and advertisement. The petition did not ask the court to enjoin the decree of the Supreme Court; it asked for an injunction against further proceeding under the writ and seizure.

Fourth. As to the fourth ground : under a fieri facias, any property of the judgment debtor not exempt by law may be seized. If the sheriff should make an excessive seizure, the defendant might be relieved, and the seizure reduced on motion, and proper showing to the court from which the writ issued. If the property of a third person should be seized under the writ, he might enjoin. In the hypothecary action, where the owner'or possessor of the incumbered property is not the judgment debtor, he is not personally liable. The decree declaring the property subject, and ordering it to be seized is a decree in rem against the specific property. The owner or possessor is called, in legal parlance, the “ Third Possessor.” No other property is liable but that on which the mortgage rests ; and if the writ commands the seizure and sale of any other property of the third possessor than that decreed to be subject to the mortgage, the third possessor, like any other third person, may protect himself by injunction.

As the seizure was released and the writ returned by order of the seizing creditor on the day the injunction was granted, the day before that fixed for the sale, the injunction could not have caused any damage whatever. The injunction Simply arrests further proceeding under the writ until the alleged causes of injunction can be heard and determined. It does not operate a release of the seizure, nor does it require a return of the writ. On the contrary, while the sheriff is bound to desist from further proceeding, he is also bound to retain the writ, and. to hold the property under seizure until the injunction is finally disposed of. In the event of its dissolution he must complete the execution by proceeding to sell the property seized, as commanded by the-writ. The order of the seizing creditor, to release the seizure and return the writ, can not be construed otherwise than as a confession of the existence of legal cause for arresting the execution, and the consequent, abandonment of the entire proceeding under the writ. The court erred, therefore, in awarding damages against the appellant.

As Austin Woolfolk was not the judgment debtor, and was not personally liable, he was the third possessor of the property incumbered by the two judgments in favor of Labauve ; and whether this property, at. the time the suit of Mrs. Labauve against Slack, Executor, was brought, was in the possession of Slack as testamentary xxecutor, or of the-heirs under the will of Austin Woolfolk, it was neither in the possession of the debtor nor of his heirs. When hypothecated property is-thus situated the hypothecary creditor can reach it only by an action against the third possessor or possessors, to compel him or them to .give it up, or pay the amount for which it stands hypothecated. “This is-the hypothecary action, properly speaking a real action, as defined by the Code of Practice, arts. 41, 42, 61 to 68 inclusive; and by this court, in Elwyn vs. Jackson, 14 La. 413, 414.

In Citizens’ Bank vs. Buisson, 7 Rob. 506, Buisson was executor of Pichot; and he was in the actual possession of property mortgaged by Pichot to the bank. The bank commenced proceedings against the-property, via executiva, which the court said section twenty-four of the charter authorized, notwithstanding the death of the mortgagor, or any change of title or possession, by any means or cause. This proceeding-was abandoned, that is, by supplemental petition it was changed to the via ordinaria; and Buisson was cited as the person in possession, not as the executor of the deceased mortgagor. The court of original jurisdiction rendered judgment against Buisson, “who had been cited merely as the actual possessor of the mortgaged premises,” for a sum to be-paid by him in his capacity of testamentary executor. This was held to be error. The judgment was reversed, and a decree rendered ordering that unless Buisson, “the person in actual possession of the mortgaged premises,” should pay, etc., the mortgaged property should be sold, etc.

The suit of Mrs. Labauve vs. Slack was brought against the testamentary executor alone. She alleged the death of Austin Woolfolk ; and that his succession was being administered by Henry R. Slack, as testamentary executor. She did not allege that Slack was in possession of the property, nor did she proceed against him as the third person in actual possession. She prayed that he be cited “ in his capacity aforesaid and that the mortgaged property be seized and sol'd, etc., ■“ unless said Henry R. Slack in his capacity aforesaid” should pay, etc. That is, she sued Slack in his capacity as testamentary executor of the former owner, which the court said in Buisson’s case, 7 Robinson, could not be done.

As this was purely an hypothecary action, in which no personal liability was asserted, it was a real action; and in Cronan vs. McDonogh’s Executors, 9 An. 302, which was a real action, this court said the executors were without capacity to stand in judgment alone in the controversy, citing and relying on article 123 of the Code of Practice. This article declares, in very positive terms, that if the heirs are present or represented in the State, “none but personal actions can be brought against the testamentary executor alone. All real actions, such as those of revendication and the like, must be brought both against the testamentary EXECUTOR AND THE HEIRS PRESENT OR REPRESENTED.”

As all the heirs resided in the State, they were all present, in the sense of the law; and they could all have been cited, either personally or at their domicil if temporarily absent. If the intervention of Joseph made him a party, he and the executor were the only parties defendant; and if the executor was without capacity to stand in judgment alone, he and one of the heirs were equally incapable. There can be no judgment without parties legally capable of standing in judgment. The right of Mrs. Labauve was indivisible. She sought to enforce her judicial mortgages against an undivided interest in real property, an entirety which liad belonged to Austin Woolfoík; and which, by his will, had passed, in indiviso, to his mother, his brother, and his two sisters. The decree which declared that undivided interest subject to the mortgages of Mrs. Labauve effected and condemned to be sold an entirety, the property of all these four heirs ; and according to the Code of Practice, article 123, all four were necessary parties to the suit.

The mere reading of the opinion in 28 An. 296, shows that the court ■considered and passed upon no other defenses than those set up in the pleading. It is manifest, and the court properly so held, that the discharge of Joseph in bankruptcy did not release Austin Woolfolk’s property from the judicial mortgages in favor of Labauve. If the attention of the court had been cabled to the want of capacity in the executor and one of the heirs to stand in judgment alone, the court would have been compelled to have passed upon that question : and we entertain no doubt but that the cause would have been remanded, in order that all the heirs.might be cited, as was done in Oronan’s case, 9 An. 302.

Be that as it may, the decree in 28 An. 296, 297, does not conclude Joseph Woolfolk, because no personal judgment was asked for or rendered; and the persons who were defendants in the suit were incapable of standing in judgment in the controversy. There can be no greater nullity than a judgment without parties defendant; and defendants without capacity to stand in judgment can not give the court jurisdiction to pass upon the subject matter in controversy.

A decree ordering the seizure and sale of an entirety can not be enforced otherwise than by the sale of that entirety. The entirety can not be sold in this case, because one only of the four owners of that entirety was a party to the proceeding ; and Joseph Woolfolk had the right to join with his co-owners in a suit to prevent the sale of the entirety under a decree not rendered contradictorily with all the owners representing that entirety. The district court erred in maintaining the exception as against Joseph Woolfolk. It should have been overruled absolutely.

It is therefore ordered, adjudged, and decreed that the judgment appealed from in so far as it maintains the exception and dissolves the injunction with damages as to Joseph Woolfolk, be and it is annulled, avoided, and reversed: that the exception herein taken and pleaded by Mrs. Elise Labauve be overruled: that the cause be remanded for further proceedings according to law and the views herein expressed ; and that Mrs. Elise Labauve, appellee, be condemned to pay the costs of the exception in the district court, and the costs of this appeal.

On Application nor Rehearing.

■Spencer, J.

This case presents the “ hypothecary action proper. O. P. 68. It is the pursuit of a thing — a proceeding in rem, as contra-distinguished from a proceeding in personam. The latter bases itself upon personal obligation, the former does not. The Code declares that an action “ to recover a sum of money,” “ accompanied by a mortgage,” is not a real action. 0. P. 12. But art. 61 declares that “ the hypothecary action is a real action.” Art. 62 declares that “ like all real actions” it follows the property into whatever hands it goes.

We understand, therefore, that when the creditor asserts a personal obligation secured by mortgage, i. e., proceeds against the mortgagor or his heirs to enforce his debt and mortgage, the action is not real. But when the possessor is under no personal obligation to pay the debt, i. e., when the suit proceeds exclusively in rem, the action is real.

This was the view we expressed in the case of Buckner vs. Wisdom, 31 An. 52, which was a proceeding against the debtor’s estate, represented by an executor in possession of the mortgaged immovable. We «ee no other mode of harmonizing the provisions of the Code.

Under article 123 C. P., where the heirs are present, “none butper•sonal actions can be brought against the testamentary executor alone. All real actions, such as those of revendication, and the like, must be brought both against the executor and the heirs present or represented.

The theory of the Code seems to be this ; that the hypothecary action proper, alternatively at least, demands the surrender and giving up of the immovable itself; and that the power to defend in such action •implies therefore in some sort, the rights of alienation and acquisition, since the possessor must elect between giving up the property or paying the debt against it. When the heirs of the deceased possessor are present or represented the law denies to the executor acting alone the exercise of this right of election, this power of alienation, and requires "the joinder of the heirs'.

The case is different, however, where the deceased possessor was himself the debtor, personally bound for the debt. In that case there is no election. There can be no abandonment, no quasi alienation, by ■giving up the property.

In the case before us we held that this being a purely hypothecary ■action, and the heirs being present they were necessary parties. We ■adhere to that view.

The rehearing is refused.


source: Caselaw Access Project

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

license: Public Domain

text:
    No. 7122.
    State ex rel. C. E. Moss vs. A. Jumel, Auditor.
    ’The Legislature is without authority to pass a law reducing the salai'y of a judge during his term of office.
    _A mandamus will not issue to compel the Auditor to warrant on a certain fund unless it be shown that the money appropriated to that fund has not been exhausted.
    APPEAL from the Third District Court, parish of Orleans. Monroe, J.

      B. B. Forman for relator and appellee.

      H. N. Ogden, Attorney General, for the State.
   The opinion of the court was delivered by

Manning, C. J.

The relator was elected parish judge of the parish •of Carroll in November 1876. His term of office was two years. At •that time the salary of the office to which he was elected was twenty-five hundred dollars per annum. In April 1877 this salary was reduced by -a legislative act to seventeen hundred and fifty dollars. The relator demanded of the Auditor of Public Accounts warrants for nine hundred and thirty-seven dollars and fifty cents, which is the unpaid residue of his salary for 1877, computed at the rate of twenty-five hundred dollars per annum. The Auditor refused to issue them, and this proceeding by mandamus was taken to compel his compliance. The mandamus was made peremptory by the lower judge.

The respondent resists the demand upon the ground that the salaries of parish judges are not permanently fixed by the constitution, but are expressly made variable, and subject to legislative alteration. This is true. It was perfectly competent for the legislature to reduce the salaries of these officers. But the question here presented is — can such legislative reduction of salary operate upon the incumbents who took office prior to the reduction, or must its operation be postponed to the close of their term. Or to state it more broadly, can the legislature alter the salary of a judge during his term, and destroy or impair the right he has to the salary, such as it was fixed by law at the time he was inducted into office.

We held in Collens v. Jumel, 30 Annual, 861 that the legislature could not deprive a judge of his salary by abolishing his office. Oan it retain the office, and dimmish the salary quoad the officer who was elected under a different law, fixing a different rate of compensation ?

Our governments, both State and Federal, recognize three distinct departments — all co-ordinate — each independent in its own sphere. It has been always thought one of the wisest maxims, held and enforced by those sages, whom with filial reverence we are wont to call the father's of our republic, that the independence of the judiciary could in no wise be impaired — that its freedom of motion, in that orbit prescribed for it by the organic law of its being, could by no device be hampered. They had not forgotten that when the mother-country was struggling in those throes from which has emerged her ‘liberty regulated by law,’ the greatest instrument of oppression in the hands of the crown was its control over the judges through the precarious tenure of their office, and their absolute dependence upon the sovereign for their annual stipends.

To prevent a recurrence of those and kindred evils, the judiciary was made from the beginning of our government equal to the executive, equal to the legislature, in extent of power and scope of authority in its own sphere. And experience has amply justified the wisdom of those seers who thus erected a barrier to the encroachments of executive power on the one hand, which always seeks to aggrandize itself, and on the other planted a rock upon the solid shore of judicial independence, against which the rushing and passion-tossed waves of popular or legislative frenzy beat upharming.

It would be an empty form — a deceitful promise — to assure independence to the judiciary, if that independence could be at once destroyed by the exercise of a power fatal to its existence. Hence it has been held that the salary of a judge is not taxable, since that would be a diminution pro tanto of it. New Orleans v. Lea, 14 Annual, 197. In the present case, the power attempted to be exercised is a diminution on a larger scale. If, indeed, a judge’s salary can be reduced by a sum however small, there is no limit to its diminution, and thus by reducing it to one dollar or other insignificant sum per annum, a removal would be practically effected which the constitution has provided for in another way.

The Pennsylvania court, in an opinion replete with wisdom, observes ' that the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution, because it has less capacity or power to injure them. The executive dispenses honours and holds the sword — the legislature commands the purse and prescribes the rules by which the duties and rights of citizens are regulated. The j udiciary has no influence over either the sword or the purse. It may be said to have neither force nor will, but merely judgment, and this shews that being the weakest of the three departments of power, it can never attack with success either of the other two, and that all possible care is requisite to enable it to defend itself against their attacks. Com. v. Mann, 5, Watts & Serj. 403.

The act of April 1877 can affect only the parish judges who have been elected since its passage. The relator is not in that category, and is entitled to his salary at the rate fixed by the law in force at his election and qualification.

But the sum appropriated by the legislature is not sufficient to pay the relator’s salary at the larger rate, and we cannot order the Auditor by mandamus to warrant for more than has been appropriated. While • therefore we think the relator’s salary could not legally be reduced during the term which had commenced prior to the act reducing it, we must refuse the mandamus because there is no appropriation against which the Auditor can warrant.

The judgment of the lower court is avoided and reversed and the application of the relator for a mandamus is rejected at his costs.

Dissenting Opinion.

DeBlanc, J.

I believe, as my colleagues do, that the power to' reduce the salary of a judge during the term for which he was elected, is — manifestly—a dangerous power: but, that it does exist, I entertain no doubt. The 86th article of the constitution of 1868 ordains that, until otherwise provided, each parish judge shall receive a salary of twelve hundred dollars per annum.

It was soon after the adoption of the constitution otherwise provided;. the judge’s salary was fixed at two thousand dollars in parishes having one member, and in new parishes not yet entitled to separate representation in the House of Representatives, and at two thousand five hundred dollars in parishes having two or more members in the House.

In 1877 — during the. term for which the relator was elected — the amount of that salary was again changed and that to.which he was entitled at the date of’ his election reduced from twenty-five hundred to seventeen hundred and fifty dollars. Though it may have been inconsiderate, that reduction was not prompted by any improper motive and was authorized by the plain letter of the constitutional provision already referred to.

The relator took the office with full notice that the Legislature could either reduce or increase his emolument, and that, as its power is unrestricted by any express or implied reservation, it could — as it did — reduce that emol iment during the term for which he was commissioned.

The act of 1877 was to and did take effect from and after its passage, and, as it repeals all laws or parts of law in conflict with its provisions, the Auditor’s warrant can be claimed and obtained but under said act, the only one now in force.

For these reasons, I respectfully dissent from the opinion of the majority, but concur in the decree.

On Application por Rehearing.

Manning, C. J.

The relator prays a rehearing on one point alone, and it is granted.

On Rehearing.

We refused to authorize a mandamus to the Auditor because there was no appropriation. The relator reminds us that in the Pennsylvania ease, that court made the mandamus peremptory, and insists that we should do likewise. There is a constitutional prohibition of drawing money from the treasury unless specific appropriation has been made, (Const, art. 104) which did not exist there.

The brief of counsel furnishes us with a calculation, showing that the salaries of the parish judges amounted to one thousand dollars less than the sum appropriated, and he urges that we can make the mandamus peremptory for that sum which would cover his claim. But there is no evidence in the record upon this matter. True, we take cognizance of the acts of the legislature, but this excess of appropriation m.ay have been exhausted by some other applicant in advance of the relator. If he can shew that there has been appropriated enough to pay his claim, and that such appropriation has not been exhausted, we will be author- ■ ized to grant his prayer. To enable him to do this, It is ordered that the case be remanded to receive proof relating thereto.


author: DeBlanc, J.

text:
    No. 6782.
    The State vs. Samuel Wallman.
    An indictment for murder eorrectlv charges that the1 crime was committed on the day the mortal blow was given, although it appears that the deceased did not die until a day following the blow.
    Evidence will not be admitted to show that one of the jurors in a murder case only-agreed to the verdict of guilty on condition that a petition signed by every member of the,jury should be addressed to the Governor asking that the penalty be commuted from death to imprisonment for life.
    APPEAL from the Superior Criminal- Court, parish of Orleans. Whitaker, J.

      H. N. Ogden, Attorney General, for the State.

      McGloin & Nixon for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

Defendant was indicted for murder, tried, found guilty and sentenced to death. He appealed, and — to reverse the verdict returned by the jury and the sentence pronounced by the court, he relies on two grounds:

1. That, as the charge against him is that he struck the mortal blow on the 13th of October, then and thereby committing the crime of murder, and — as the party thus struck died of the blow on a day following that on which it was given, the crime was not complete until death ensued, and the accused could not — -legally—have been found guilty as charged in the indictment.

' 2. That one of the jurors concurred in the verdict, only after it had been agreed that a petition addressed to the Governor and signed by every member of the jury, would ask the commutation of the penalty from death to imprisonment for life.

I.

We admit — as contended by the prisoner’s counsel — that the death of the victim struck completes the crime of murder, but we do not admit that it alone constitutes that crime. The authority relied upon by them holds — and as to this there can be no difference of opinion — that unless death does ensue, the felony is not murder, but another, a lesser offence. . . .

Whether struck with a knife, or inflicted with a pistol, a mortal blow «arries with it the unfailing seed of a premature and unnatural death ; and — whatever may have been the interval between the blow and its result, the commission of the offence dates from the instant, when driven or fired with a criminal intent, the blade of the knife or the bullet penetrates a vital part, and either suddenly destroys or irrevocably abridges the life of another. The crime — that which the law reprobates and punishes — is entirely in its commission, and — in cases of murder— that commission embraces the intent to kill, the infliction of a mortal wound, the immediate death or the certainty of the death of one who ■fell in the peace of the State and in the peace of God.

We are reminded that “ the simplest defence which the accused has to a charge against him is the proof of an alibi; and we are asked : how would such a right be protected, if the time laid in the indictment be •considered as immaterial? That right would, under all circumstances, be protected by the court; for, were the evidence to establish that the offence was committed on a day different from that laid in the indictment, and — were the indictment amended so as to correspond with the evidenee--the prisoner would not, could not be denied a reasonable delay to prepare any reasonable defence, which he may really have or believe he has against the unexpected, or at least apparently unexpected ■change in the indictment.

In this regard, the very plain and very imperative terms of the law bear but one, a clear meaning, which no ingenuity can successfully vary, alter or circumvent: “No indictment for any offence shall be held in■■sufficient for omitting to state the time at which the offence was committed, unless, time be of its essence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened.”

Rev. Statutes, sec. 1063.

The murderer’s guilt is attached to the infliction of the mortal blow: the death of the wounded is the result of the blow, the effect of an antecedent cause, and there can be no doubt that the crime dates from and is properly charged to have been committed — not on the day when •the victim died from a previously inflicted wound, but on the day the mortal wound was inflicted. Though he proves'that — when death en■sued — he was at hundreds of miles from the spot, the accused may be ■convicted — whilst, if be were to prove that he was not present when and where the blow was struck, the jury would be bound to acquit him.

II.

The jury returned against defendant the unqualified verdict of ,guilty, and when polled under the order of the court, every member of the jury said that was his verdict. An attempt was made, not to impeach, but to explain it, to show that, on the part of one of the jurors, it was a conditional verdict, that he had agreed to it, with the understanding that he and all the others would address a petition to the Governor, asking the commutation of the penalty from death to imprisonment for life, and under the belief impressed upon his mind by Other jurors that such would be the effect of the intended petition. This is the accused’s statement. He offered to verify it by the testimony of two witnesses, but the tendered evidence was excluded.

In the case of Mercer vs. the State of Georgia, the judges said:: “ It is urged that the court should have granted a new trial, because Richard Harrison, one of the jury who tried the prisoner, had informed several persons, whose statements appear in the record, that he had not agreed to the verdict, but suffered it to be brought in, because he could not control the rest of the jury.”

“In the first place, this assertion of the juror is not sustained by the record: that shows that he did agree to the verdict, in the way which is known to the law. In the next place, a juror cannot be allowed, in this way, to impeach his verdict. The practice is too plainly improper’ and dangerous to need any comment from us.”

17 Ga. Rep. 175.

The allegation — here—is that the juror did agree to the verdict, but. that he did so conditionally, and what was the condition ? That an application would be made for the commutation of the penalty, which the juror lenew was to be the inevitable consequence of his own verdict. Taking that allegation as it is, what presume and what conclude ? Is it that he intended to render a qualified verdict ? Is it that he believed in the commission of only a fraction of the crime charged ? If so, his-deliberate concurrence, and his proclaimed assent to the verdict, would have amounted to a violation of his oath, a disregard of his duty, to-not less than a crime, against the result of which the lower court would, most assuredly, have protected the prisoner.

The juror was not taken by surprise: it does not appear that he-was deceived ; he discussed and deliberated with the others, and he and1 they answered in open court — at first collectively and afterwards separately — that the prisoner is guilty of murder. Their course justifies the-presumption that every one of them had reached the grave conclusion that — under the facts as disclosed on the trial, the law as explained by the judge — the prisoner should pay, with his life and on the gallows, the life which he had destroyed — that, under the facts and the law, they could not — considering the proportions of the crime — reduce the proportions of the penalty. In the discharge of their duty, they so decided, and so reported. This was right: jurors are the representatives and guardians of both society and. of those denounced in its name; their protection must extend to even a doubtful innocence, but no further. They should show no mercy to merciless offenders.

We think — as held by the Supreme Court of the United States— that “ cases might arise in which it would be impossible to refuse the -affidavits of jurors without violating the plainest principles of justice;” but, were we to command the admission of affidavits establishing the fact relied upon by defendant, what would they prove? Not that the juror did not agree to the verdict as returned, and which he publicly declared was his verdict; but merely that though he — a sworn juror— •could find no reason to decide otherwise than he had done, there— nevertheless — was a reason why the Governor should be asked to alter and reduce the only penalty which could be inflicted by the court. That, which — in their opinion — they could not have done as an act of justicé, they were to invite him to do as an act of clemency.

Was the strange promise said to have been made to the juror complied with ? Has any one of those by whom it is alleged it was made refused to sign the proposed application ? As to this, we are not and could not legally have been informed ; but if this last effort to obtain the commutation of the grave penalty, has been delayed in the hope that the verdict would be annulled and the sentence reversed, that hope is no longer in the way of the intended application.

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


author: Spencer, J.

text:
    No. 5544.
    Factors’ and Traders’ Insurance Company vs. Marine Dry Dock and Shipyard Company.
    In order to make the pledge of a certificate of the stock of a corporation valid as to third persons it is not necessary to give notice of the pledge to the company.
    Where knowledge of a fact by a corporation is necessary, the corporation is held'to know concerning that fact whatever its president and other chief officers know.
    A corporation is liable for the damages caused by the wrongful canceling of a certificate of its stock by its president and secretary.
    REPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      Breaux, Benner & Hall for plaintiff and appellee.

      Gibson & Gibson for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

Kearney, Blois & Co., of New Orleans, pledged, on eighth December, 1869, to the plaintiff, with power to sell, transfer, etc., seventy-seven shares of the stock of the Marine Dry Dock and Shipyard Company — evidenced by three certificates, No. 1 for twenty-five shares, No. 2 for fifty shares, and No. 59 for two shares — to secure a loan of $5000.

Kearney, Blois & Co. were the treasurers of the defendant company, and Mr. Blois, of that firm, was its president. The business of the dock company was transacted, and its books kept, at the office of said firm, on Magazine street, New Orleans, though, by its charter, its domicile and offices were nominally in Algiers.

On twenty-fifth January, 1870, said firm — being as stated, treasurers, of the company, and one of its members president thereof, and some of them directors — caused the secretary of the company to cancel on its book the above three certificates of stock, and had issued to themselves two new certificates for said seventy-seven shares. These new certificates were entered by the secretary, and signed by Blois, president of the company, and delivered to said firm, without requiring the surrender of the old certificates. Having done this, the firm of Kearney, Blois & Oo. pledged these new certificates to other parties, who gave the company due notice of the pledge. On eighteenth May, 1870, the plaintiff addressed a letter to the secretary of the Dock Company, informing him of the pledge, and of plaintiffs right to the dividend that day declared on stock. This letter was delivered to Bernos, of the firm of Kearney, Blois & Co., at their said office. On first June plaintiffs received from the treasurers, their check for $385, as dividend on the pledged stock. The parties to whom Kearney, Blois & Co. had pledged the new certificates foreclosed their pledges and bought in the stock and had it transferred to them on the books of the company in August, 1870.

When the plaintiff’s transferee, Barton, presented the old certificates for transfer on the books of the company, it was refused on the ground that the stock for which they called had already been transferred to. other parties by virtue of their holding said new certificates. Barton sought to enforce his rights by law, but failed. This suit is now brought by the plaintiff, the original pledgee, against the Dock Company for damages, caused by the wrongful and fraudulent acts of its agents and officers.

The certificates of this Dock Company declare that the stock is “transferable on the books of the company,” and do not contain the-customary clause, “ on the surrender of this certificate.”

The defense may be summarized and considered under the following heads:

First — Was the defendant company entitled to notice of the pledge-to plaintiff; and if so, did it have notice thereof seasonably and in due form?

Second — If it was not entitled to notice, or if it had notice, is it liable to plaintiff for damages ?

The first of these questions depends upon another; what is a certificate of stock? It is-now well settled that a certificate of stock is not a credit or evidence of debt, but is merely evidence of ownership of 'a certain interest in the assets and property of a corporation. See Harris vs. Bank of Mobile, 5 An. 538. The corporation is not a debtor in the usual sense of that term. In the case of Samuel Smith et al. vs. Crescent City Slaughterhouse Company, lately decided and not yet reported, w'e had occasion to review at length the authorities on this subject, and it will not be necessary to repeat them here. We there held that under the act of twelfth of February, 1852, p. 15, amendatory (and now article 3158) of the Bevised Civil Code, that the pledge (and therefore sale) of “ promissory notes, bills of exchange, stocks, obligations, or claims upon other persons was valid against third persons without other or further formality than delivery to the creditor of the notes, bills, certificates of stock, or other evidences of the claim, etc., except in the case where the thing pledged was “ a credit not negotiable,” in which last case the debtor must have notice of the pledge or transfer. See, also, 3160 R. C. C.

Certificates of stock not being credits or evidences of debt, do not come within the scope of the stated exception. The law is positive that pledges “ of stocks ” are valid against third persons by mere delivery of “ the certificates.” It does not distinguish between negotiable or nonnegotiable certificates, nor between those which declare that to effect a transfer the certificate must be surrendered and those'that do not so declare.

We think that by thus making stocks transferable by mere delivery of the certificate the law has intended to interdict corporations from transferring stocks on their books, except upon surrender of the certificate, or upon proof of its loss or destruction. These certificates of stock have become such important factors in trade and credit that the law has intended to surround those who take them with the Safeguards it accords to the holders of the other great agencies of commerce, bills, notes, bills of lading, etc.

Under this view, it is unnecessary to discuss the question whether the defendant company had notice of the pledge, though we confess that the facts already detailed in this opinion seem to leave little room for discussion on that point. How it can be argued in a case like this, where the question is simply whether a corporation had notice of a fact, and where no particular form of notice is required, that a knowledge of that fact by its president, its directors, and treasurer is ¡¿sufficient, we are at a loss to understand. A corporation can not see or- know any thing except by the eyes or intelligence of its officers. In casés therefore where knowledge in any form will suffice, a corporation must be held to know what its president and chief officers know.

Second — These officers having taken advantage Of their position as officers to practice a fraud upon the plaintiffs, by wrongfully canceling their certificates of stock, and transferring it in new form to others, 'things which they could only do by reason of their official position, the corporation is undoubtedly liable for their acts. 38 Barbour, 527.

The judge a quo fixed the damages at four thousand dollars, and inadvertently, as stated by himself, allowed eight per cent interest thereon from twenty-third January, 1870. The rate of interest should have .been five per cent from judicial demand.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended so as to allow on the amount thereof five per cent interest from thirty-first May, 1873, instead of eight per cent from twenty-third January, 1870, and that as thus amended said judgment is affirmed; plaintiff and appellee to pay costs of appeal, and •defendant those of the court below.

Rehearing refused.


author: Marr, J.

text:
    No. 6631.
    Walmsley and Patterson, Executors, vs. Mendelsohn & Newman.
    The judgment of a court against the liquidator of a partnership for the rent of a store-house used by him is not conclusive as to the surety on the former’s bond as liquidator, who was hot a party to the judgment.
    The surviving partner of a commercial firm who desires to liquidate the affairs of the firm, must demand the liquidation contradictorily with the legal representatives of his deceased partner, and any heir of the latter who may be present, or represented. His ex parle appointment and qualification as liquidator are wholly unauthorized.
    The surviving partner of a commercial firm is not liable as liquidator, to account ■ to the succession of his deceased partner for any single item of indebtedness to the succession, but to pay over the entire sum found to be due the succession, on the settlement of the partnership.
    A suit against the surviving, and liquidating partner, by the succession of the deceased partner, for a settlement, or a partition, must be brought in a court of ordinary jurisdiction.
    APPEAL from the Sixth District Court, parish of Orleans. Bightor, J.
    If. H. Price and Henry C. Miller for plaintiffs and appellees.

      Cotton & Levy for defendants and appellants.
   The opinion of t'he court was delivered by

Marr, J.

Thomas H. Patterson, a citizen of New Orleans, died at Altoona, in the State of Pennsylvania, on the 15th July, 1872, leaving a will, by which he appointed Walmsley and Patterson, executors, as we gather from the pleadings.

At the time of his death Patterson and Sigmund Mendelsohn were commercial partners, under the style of S. Mendelsohn & Co. The record does not show at what time the will was presented for probate, and the executors qualified; but on the 20th July, six days after the death of Patterson, Mendelsohn filed a petition in the Second District Court of Orleans, alleging that there was a large stock of merchandise belonging to the partnership; that a full inventory and appraisement should be taken; and that he as surviving partner had the right to be appointed liquidator. The court ordered that he be appointed liquidator, “ on complying with the requisites of the law;” and that an inventory be taken by a notary, and two appraisers, designated in the order, in the presence of all parties interested.

The notary proceeded, on the 25th July, to take an inventory and appraisement, not of the property of the succession of Patterson, but of the assets of the partnership of Mendelsohn & Co., the estimated value of which was $44,291 66. The executors of Patterson were not present, nor was the succession of Patterson in any way represented in the proceeding ; nor does it appear that any representative of the succession was notified, in any manner, of the ex parte application of Mendelsohn to be appointed liquidator, nor of the time and place, nor of the fact of the taking of the inventory. The only persons present were the notary, the two appraisers, Mendelsohn, and the two witnesses. The inventory is merely a statement of the gross assets of the partnership, without any statement of the debts, or balance-sheet, or estimate of, or means of estimating .the portion coming to deceased, or the value of his interest in the partnership.

On the filing of this inventory in the Second District Court, Mendelsohn gave bond with Isadore Newman, his surety, in the sum of $25,000, in favor of “ legal representatives” of Thomas H. Patterson, conditioned for the faithful administration of Mendelsohn as liquidator, and that he would render a true, perfect,and just account, when lawfully required by the “ legal representatives,” or the heirs, or their attorneys. There is nothing to show that the executors had notice or knowledge of this proceeding, or that any representative of the succession took part in it in any way.

On the 5th July, 1873, Mendelsohn filed, in the Second District Court, what purported to be his account as liquidating partner. It begins with a statement of the assets, footing $43,811 33, and this is followed by a statement of the debts, showing accounts in course of collection $5010 69, cash on hand $335 33, and debts unpaid $4031 66, without any statement of losses or profits or the value of the share of the deceased.

The executors opposed this account, and it was amended by judgment of the Second District Court, by striking out two items, one of - $100, purporting to have been paid, and one of $696 66, not paid, and by placing the succession on it as a creditor for $1800, for rent of the property owned by Patterson, used in the business of the partnership, for the year ending 1st March, 1873. Prom the judgment homologating the account as thus amended, an appeal was taken; and our predecessors made other amendments, rejecting one credit claimed by Mendel- ■ sohn, of $1583 33, and reducing another from $1000 to $500.

The executors caused execution to issue on the judgment homologating the account for $1800, for the rent, which was returned no prop- , erty found. Thereupon they brought this suit on the liquidator’s bond against Mendelsohn and his surety Newman, in the Sixth District. Court, to recover the $1800, reserving their right to sue for the capital con- . tributed by Patterson to the partnership, and for such other sums as Mendelsohn might be liable for as liquidator. The judgment of the dis- , triet court was in favor of plaintiffs, for the $1800, with reservation as prayed for, and defendants appealed.

On the trial Mendelsohn was called as a witness for defendants, to prove that Patterson did not lease the property to the partnership, and . that the executors did not lease it to Mendelsohn; and that the succession of Patterson had no right to claim the rent. The court refused to hear the witness, evidently on the ground that the judgment of the Second District Court amending and homologating the account of the liquidator concluded the defendants on the question of liability for the rent. Defendants excepted to this ruling on the grounds, among others, that the Second District Court had no jurisdiction ; that the judgment of that court was not binding on the surety ; and that the witness would show that he had another account to render ; and other charges against the estate.

We think the judge- should have heard the witness. Newman, the surety, was not a party to the proceeding in the Second District Court; and he was not concluded by the judgment of that court.

It was the duty of the executors to have an inventory and appraisement made of the property of the succession. If the deceased was in community or in partnership with any one who has 'survived him, a partition must be effected, in order to ascertain what part of the common or partnership property belonged to the deceased, because that part only belonged to his succession, and would fall under the control and administration of the representative of the succession. R. C. C. 1135.

If the deceased was a member of a commercial partnership, the surviving partner, after the portion of the deceased in the partnership effects has been ascertained, and the estimate of it made on the inventory, may require' that this portion shall remain-with his own, in order that the whole may be disposed of for the common benefit in the ordinary course of trade, and the proceeds applied, as far as necessary, to the payment of the debts of the partnership. Art. 1138.

This right of the surviving partner is absolute only when the succession is vacant, or all the heirs are absent and not represented. The surviving partner is bound to give security to the legal representative-of the succession, .for a sum exceeding by one fourth the estimated value-of the portion retained by him which was coming to the deceased, according to the inventory. He has one year within which to sell the-effects, and to settle the affairs of the partnership ; and he is bound to render an account to the legal representative of the succession of the-deceased partner, and to pay to him the part due to the succession on the settlement of the partnership. Arts. 1139,1140.

The Code contemplates and requires that the legal representative of the succession shall qualify, cause an inventory to be taken, take charge-of the property, and enter upon the administration. If the surviving partner desires to exercise the right accorded to him to liquidate the affairs of the partnership, he must demand it contradictorily with the legal representative, after the inventory has been made, and the portion coming to the deceased has been ascertained, and its value estimated in the inventory. If any heir of the deceased be present or represented,, his consent would seem to be necessary, and, therefore, he should be notified of the application of the surviving partner. Art 1143; McKowen vs. McGuire, 15 An. 637.

Patterson was a citizen of Louisiana, residing in New Orleans, and he had invested a large sum in this business, which was conducted in valuable buildings, alleged to have belonged to him. It is not unfair to presume that all his heirs were not absent and unrepresented, in view of the large interests devolved upon them by his death. At any rate, no la.w authorizes the surviving partner to take the initiative, and, by ex-parte application, cause himself to be appointed liquidator, with the right to retain the portion of the deceased partner, to have an inventory made ex parte, and to give the requisite bond, and security, without having the same approved and accepted by the legal representative of the deceased partner, or by the court, in case of unreasonable objection-

It is no part of the obligation of the surviving partner and his surety to pay any specific debt to the succession of the deceased. The business of the surviving partner, and this is the obligation of the bond,

is to dispose of the effects in the usual course of trade, to pay the debts-of the partnership to third persons, to liquidate the affairs of the partnership ; and to account and pay over whatever may be found due to the succession on final settlement.

No doubt cases will occur in which the surviving partner might note have been able to liquidate the partnership fully in one year ; and in that event he might obtain a prolongation of the term, where the interests of the succession would be thereby promoted. But whether the term be extended or not, his obligation is the same, to account to the legal representative, and to pay him the portion shown to be due on the liquidation and settlement of the partnership. In the event that any of the effects should remain not disposed of, they might be divided in land, if susceptible of such division ; or be sold at public sale.

The whole object of this proceeding is to effect a partition, a severance of the interests of the deceased and the survivor, in the manner most advantageous to all the parties. The law never intended that, at any time, either during the term fixed, or after its expiration, the legal representatives of the succession should be permitted to bring suit against the survivor for any single item of account which might appear to the credit of the deceased. The obligation of the survivor is entire, •to account and pay over the entire amount due, the part and portion •coming to the succession on the settlement of the partnership.

This obligation of the surviving partner is an ordinary civil obligation, which must be enforced in the ordinary civil tribunals, having ordinary civil jurisdiction ; and it is no more cognizable in a probate court than would be any other obligation to the succession, or a suit for a partition of any property owned in common by the deceased and a surviving joint owner. At the expiration of the term fixed for the liquidation, the legal representative would demand of the survivor an account, and the payment of the amount due. If this should be refused, it would be the duty of the person administering the succession, the legal representative, to proceed, by ordinary action, before an ordinary civil tribunal, to compel the rendering of an account, the final settlement of the partnership affairs, and the payment of the amount due on such settlement; and this suit would be brought against thesprincipal and the surety in the bond.

This account is not to be rendered to the probate court. The probate court deals with the legal representative administering the succession. It requires him to have made and filed in court an inventory •of the property of the succession ; and to take possession of and administer that property. He could not administer the partnership, nor •could he take out of the possession of the surviving partner the portion of the deceased, because one partner has no separate ownership of any of the effects of the partnership, until it is settled in someway, and the partnership debts paid. As representative of the deceased he might, jointly with the survivor, administer the effects of the partnership ; or he might provoke a settlement and partition. He could not compel such settlement and partition in the probate court, because such proceeding would not fall within the jurisdiction of that court. When the court permits the survivor to retain the entire property of the partnership for the purpose of liquidation, the law requires him to give bond, not to the judge of the court, as administrators appointed by the court do, but to the legal representative appointed by the court to administer the succession. It is not an official bond ; it is an ordinary bond, such, as might be required of a person appointed to liquidate a partnership the members of which are still living.

The whole proceeding in the probate court seems to us to have been wrong. We do not mean to say that, to the extent of the bond, the surviving partner and his surety are not accountable to the executors for the part and portion coming to the succession on the settlement of the partnership ; but the probate court was without jurisdiction to receive the account, or to amend it, or to homologate it, or to render judgment, on it. It was not an account of the administration of a succession, but-of the administration of a partnership : It was not an account rendered by the administrator of a succession, but by the administrator of a partnership to the administrator of the succession ; and the judgment on that account does not entitle the executors to demand any specific sum as fixed by it.

There was no proof that any sum was due by the partnership for rent, except the judgment of the Second District Court; and that judgment was void for want of jurisdiction. No amount of proof could have-authorized a judgment in favor of plaintiffs in this suit; because, as the bond sued on disclosed, and the Code provides, neither the surviving-partner nor his surety was liable for any thing more, or for any thing-less than a faithful administration by the liquidator, a true and proper-account, and such sum as might be found due to the succession on the settlement of the partnership affairs.

The partnership might have owed the succession fl800 for rent; and yet, on final settlement, the succession might be largely indebted to the partnership. It is the right and the duty of the executors to compel an account and settlement of the partnership ; and they have no other right or recourse on the bond.

The judgment appealed from is therefore anulled, avoided, and reversed, and the demand of plaintiffs rejected, and their petition dismissed as in ease of nonsuit, reserving to them and to the succession of Thomas H. Patterson all their rights, whatever they may have been, against Sigmund Mendelsohn as surviving partner of the late commercial firm of S. Mendelsohn & Co., and against Sigmund Mendelsohn and Isadore Newman on the bond sued on in this case, plaintiffs, appellees,, paying the costs in both courts.

Rehearing refused.


author: Manning, C. J. DeBlano, J.

text:
    No. 7101.
    Board of School Directors of Concordia Parish vs. Joseph Hernandez.
    A duly certified copy of an original record, made hy the legal custodian of the original, is admissible in evidence.
    Under the authority of the Board of School Directors of a parish, the treasurer of the board may make a valid sale of the warrants of the State which represent that portion of the interest on the free school fund due to said parish.
    Where the plaintiff in a suit formally avers that the defendant had collected certain warrants, the property of plaintiff, and prays the defendant’s condemnation for the amount of the warrants, he thereby estops himself from subsequently suing another person as the collector of the warrants.
    APPEAL from the Second Judicial District Court, parish of Orleans. Pardee, J.

      Geo. Ii. Bright for plaintiff 'and appellant.
    27ms. J. Serrimes for defendant and appellee.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff claims from the defendant an indebtedness of twenty-five thousand one hundred and thirty-two 99-100 dollars for this, that he collected and received the amount of a series of warrants, which are set forth in detail, issued by the Auditor of Public Accounts, and which belonged to the plaintiff, and aggregate the sum sued for. Interest is also demanded from the dates of their collection.

Upon exception being made that the petition did not set forth any -cause of action, and being maintained with leave to amend, an amended petition was filed, alleging that the defendant failed to account to the plaintiff for the moneys collected and received by him, and had appropriated them to his own use. Exception was again made of the same nature as the first, and being overruled, the defendant answered.

After a general denial, he admits that he collected the warrants, but denies that they -were the property of the plaintiff, or that he collected them for the plaintiff’s account, but that they were his own, and were collected by him as owner — that the warrants were drawn in favour of David Young, then treasurer of the school board of Concordia, who was authorized by a resolution of that board to sell and transfer them, ■and that he did sell them to plaintiff for a valuable consideration in 1871, and afterwards made report thereof to the board, and paid to it or in its treasury, the sums received at and by that sale, and that such sums were used and applied by the board to the support of the public schools of that parish — that afterwards, in 1872, the board examined the accounts of Young, its treasurer, and settled with him, finding him chargeable with one thousand and ninety-seven 24-100 dollars as the balance in his hands.. This settlement is pleaded in bar of this suit. The defendant further avers that the plaintiff instituted suit in 1877 against Young, claiming from him as treasurer’ $61,502.14, less $27,589.81 acc'dunted for, which first named, sum includes the warrants upon which plaintiff is now suing,. •and this demand of Young is now pleaded as an estoppel which precludes the plaintiff from contesting the validity of the transfer of the warrants. Finally the prescription of one year is pleaded.

The authorization to sell the warrants is contained in a resolution of the school board, certified as a correct copy by one Cornwall, treasurer of the board, and it’was objected to by the plaintiff on the ground that he was not the treasurer, or if he were, that he is not authorized to certify copies of the records of the board. The treasurer is also the secretary. The law makes the one officer perform the duties of the other. Sess. Acts 1871, p. 42. He had legal custody therefore of the records,. •and as it was his duty to keep the original, a copy certified by him as true was admissible in evidence. 1 Greenleaf’s Evidence $485. That he was treasurer, and therefore secretary, is expressly alleged by the ■plaintiff in its suit against Young, which is part of the documentary •evidence in the present suit.

But the plaintiff contends that it could not legally authorize the sale of the warrants by resolution or otherwise — that it had no right to, ’transfer any appropriations made for the support of the public schools, 'but only to receive and apply them — that school boards are not required nor expected to raise funds for the support of schools, their duty being to establish and maintain schools with funds furnished by the State, and if the State furnished no funds, there could be no schools. For, •argues the plaintiff’s counsel, if the board could sell the warrants for thirty cents on the dollar, it could sell them for one mill on the dollar •and thus could abolish and destroy the schools.

We held in Durant’s case, 29 Annual, 77, that the Free School Fund was inalienable, and had been placed hors de commerce by numerous ■congressional and legislative acts and constitutional provisions, and therefore that the bonds, composing that fund, could not be validly sold even under an authorization of the General Assembly, and we have re■cently re-affirmed what we then said. Sun Ins. Co. v. Board of Liq. not .yet reported. But these warrants do not enter into, or form a part of the capital of that fund. The interest of the School fund is the means of support of the schools. The boards of directors are expressly authorized to apply that interest to the maintenance of schools. It is, so to speak, the sole income of the schools, and is expected to be spent in their yearly maintenance. These warrants are drawn for that interest. The only way to get the interest out of the State treasury into the local • school treasury is to draw a warrant for it. Could the treasurer of the local board assign or transfer that warrant to some one near by the 'Treasurer’s office, who could conveniently get the money, such assign-. ment being made for full face value ? Could lie sell that warrant to any one for one hundred cents in the dollar? If he could, the power to sell being conceded, he could sell for thirty cents in the dollar, or for fifty-seven cents, which was the price paid by the defendant. The execution of all human laws depend upon and must be confided to human instruments. They cannot foresee, nor provide for, all the contingencies of maladministration, of official dishonesty, or personal perfidy. When the law empowered the treasurer of the Concordia school board to draw the interest to which it was entitled from the State treasury, it surrounded the act with all the safeguards that mere enactments could do. It compelled him to give bond, and it entrusted to others the power to reject that bond for good cause. It could not foresee who would be the treasurer of each local school board, nor prevent the malversation of any of them. Some one had to be designated who should draw the warrant on the Auditor, and who was thus entitled to receive from that officer his warrant on the State Treasurer, and it was for each local board to guard the fund entrusted to it by selecting an officer of approved fidelity as its custodian, and requiring of him ample security for its preservation and disbursement.

What was the treasurer of the local board to do with these warrants? The plaintiffs counsel says, if they were not cashed at the treasury, shut up the schools. If the same rule were applied to the different departments of the State Government, there would be a total cessation of the exercise of all its functions. It is impossible for us to ignore the fact that warrants on the State treasury are not cashed. They form, and have formed for many years, a part of the commodities for daily sale in this city. The treasurer of the school board of Concordia must either have .sold, or the school treasury would have been empty. The legislature has more than once, not only recognized the fact that these particular warrants were the subject of barter, but made an enactment the special object of which was to enhance their market value. -All warrants were to be received in payment of arrear taxes, sess. acts 1871, p. 196, and free school warrants should be received in payment of current taxes. Sess. acts 1872, p, 55. Warrants had become so large a part of the State debt, and their sale or transfer had become so universal, that they were put on the same footing as bonds in the Funding Act. Sess. Acts 187á, p. 39.

To prevent misapprehension we may say that we are not treating-these warrants as negotiable paper in the commercial sense. It is their transferable quality — their alienability by sale and delivery — we are considering. Dillon, treating of municipal warrants, says; — Such instruments, issued by municipal and public corporations, are generally treated as negotiable in the sense of being transferable by delivery, and in most of the States the transferee or holder may enforce payment by suit or by mandamus in his own name. Munic. Oorp. <S406. We have seen that the -transferability of State warrants has been recognized by the legislation of this State — that the transfer of them is of daily occurrence — that even as Dillon says municipal warrants are “ vouchers, or necessary instruments for carrying on the machinery of municipal administration, and for anticipating the collection of taxes,” so our State warrants have become the sole means or instruments for carrying on the machinery of every department of the State administration. The school warrants are like others in this respect. They cannot be regarded as stamped with the attributes of inalienability, as are the bonds of the school fund, for the latter are consecrated to a perpetual use, ‘ never to be diverted to any other purpose,’ while the former represent the produce of that sacred fund which is required to be annually spent in the ‘ maintenance and support of public schools.’

In 1877 the plaintiff brought suit against David Young and the sureties on his bonds as treasurer, and this suit is now pleaded as an estoppel. The allegations of that petition are that Young became treasurer of the Concordia school board in 1870 and continued therein until 1877, having executed four bonds with sureties during the intervening years, all of which are set forth — that during his term of office he drew from the State treasury over sixty thousand dollars of current, and free school fund, and that he paid out only a fraction over twenty-seven thousand dollars thereof — that Young has made divers sales-of his property (six being enumerated) with the view of eluding the payment of his defalcation, all of which are null, simulated, and in fraud of plaintiff’s rights which had been secured by timely recording of these several bonds — and thereupon judgment is prayed against Young for the residue of the fund in his hands, and against the securities for such sums as they were respectively bound for.

The sum alleged to have been received by him in that suit includes, the sum for which judgment is prayed against Hernandez in this suit. The allegations of the plaintiff in that suit affirm the collection by its. treasurer of the same warrants, for the collection of which the defendant is sued in this. The liability of Young, and the sureties on his official bonds, is founded upon his collection of the warrants and his failure to account for their proceeds. It is indisputable that Young, as treasurer, had the right to collect. This petition charges that he did collect, and such averment estops the plaintiff from now claiming that Hernandez collected, and is responsible therefor.

In what capacity did the defendant collect ? The present suit does not charge that he was the agent or mandatary of the plaintiff, nor was such the fact. He was neither its officer nor employee, nor did he assume to transact its business, either by its authorization or of his own mere volition. He had no connection with the plaintiff. He treated with one of its officers and bought a saleable commodity from him, and the plaintiff had the misfortune to have an unworthy officer who consumed or withheld a large part of its funds. Which of the two should suffer ?

An interesting discussion was had at bar, and in the briefs, upon the nature or kind of obligation imposed upon, or assumed by the defendant in the act of collection of these warrants — whether the source of the obligation (admitting that there was one) arose from a contract, quasi-contract, offence or quasi-offence. This was necessary in the presentation of the case, in the event it should become necessary to determine in what length of time the present action should be prescribed. But it has become unnecessary for us to pursue the subject, since it is manifest from what we have already said that the plaintiff must fail in its action from other causes.

The judgment of the lower court is affirmed with costs.

Justice Spences recused himself, and took no part in the decision of this 'cause.

DeBlano, J.

I concur in the foregoing decree and rest my concurrence on the second ground discussed in the opinion read by the Chief Justice.

Rehearing refused.


author: Spencer, J. Manning, C. J.'

text:
    No. 7324.
    State ex rel. H. W. Fairchild vs. Talbot Stillman.
    Judgments rendered by this court while holding one of its country terms only become final on the expiration of three judicial days from their rendition.
    The last judicial day on which an application for a rehearing may be made does not expire at'GK o’clock, a. m. merely because this eojirt adjourned sine die at that hour on that day. The application is in time if filed at any time during that day.
    ^PPLICATION for a mandamus.

      Frank P. Stubbs for relator.
    Respondent in person.
   The opinion of the court was delivered by

Spencer, J.

At its Monroe term, 1878, this court affirmed the judgment of the district court in favor of plaintiff in the suit of Fair-child vs. McEnery. Our opinion and decree were delivered July 20; the 21st was Sunday. The court sat bn 22d, 23d, and 24th. The session on Ü4th commenced at 6, and ended 6J o’clock, a. m., when the court adjourned sine die. At 9| a. m. oí 24th, the defendant, McEnery, filed a formal application for rehearing.

The relator, Fairchild, demands that the clerk send down to the court a qua our decree for execution, alleging its finality by reason of the application for rehearing being filed too late.

Two 'questions are presented:

1. At the country terms of this court, is any delay given by law for applications for rehearing ?

2. If so, had that delay expired when the said application was ■filed?

The first question arises out of the fact that the original article '911 of the Code of Practice, granting three days delay, is omitted from the Revised Code of 1870 ; and what was once a mere amendment thereto, relative to cases in New Orleans, has been substituted therefor. It is contended that therefore there is now no law granting delay for Tehearings except in cases tried in New Orleans.

We think the omission the result of inadvertency or carelessness ; ■and that the existence of the.right sufficiently results from other provisions of the Code. Thus article 913 provides that “ while the court is deliberating on this application (for rehearing), the three days allowed .for rendering a judgment final do not run.” Here is a clear enunciation that our judgments do not become final until after the lapse of three days. We gather from other provisions of the Code in analogous cases ■that these three days are judicial days. See arts. 911 and 558, C. P.

The second question is, must the 24th'July, as a judicial day, be considered as having expired at 6J o’clock a. m., the hour of the court’s adjournment? We think not; an application filed at any time on that day would have been clearly sufficient and in time had the court met again on the 25th. Why should there be any difference in the cases of an adjournment to the next day and one sine die ? In either case the party 'is entitled to three judicial days, but only three. If relator’s position be correct, the application would be too late in either case, if filed after the hour of adjournment. It is not now the practice to require applications ■for rehearing to be filed in open court. We therefore hold that the defendant had the whole of the third day to apply, and did so in time. 'The mandamus is refused at costs of relator.

Dissenting Opinion.

Manning, C. J.'

In my opinion the judgment became final upon its ■rendition. By the Code of Practice, as it was before 1857, dll judgments of this court became final after three judicial days, art. 911. In that year, this article was amended by excepting from this rule nine designated parishes, of which Ouachita is not one, and in those, appeals-were not to become final until the lapse of six days. Sess. Acts 1857, p. 184.

Inthe following year, it was enacted that all judgments of this court, rendered at New Orleans, should become final only after the lapse of six days. Sess. Acts 1858, p. 65. By the law as thus amended, appeals decided at New Orleans became final after six days, and those decided elsewhere after three days. But in the revisáis of 1870, art-911 provided for appeals decided here, giving six days before they became final and wholly omitted any provision for appeals at the country terms. This omission is so pointed, considering the amendatory acts-of 1857 and 1858, that it must have been designed. And that it was an omission of significance and authority, and was so considered, is apparent from the fact that the legislature at its recent session amended art-911 of the Code of Practice by providing that appeals rendered by this court “at other points where the court may be holden” beside New Orleans, shall be final only after three judicial days from rendering them. This Act was promulgated only two days ago. Official Journal of Feb. 8. Sess. Acts 1879, p. 33.

The judgments of this Court are final when they are pronounced unless the law otherwise specially orders. The Revised Code of Practice provided that appeals decided here should not become final until after six days, and made no provision for any delay as to judgments-upon any other appeals. Therefore this appeal, decided at Ouachitalast year, was final without any delay.


author: White, J.

text:
    No. 5570.
    B. F. Charpaux and O. Valette vs. C. C. Bellocq, Wife of P. A. Gibert.
    . . Where a surviving wife sells a parcel of community property owned in indivisión by herself and her minor children, and the sale is subsequently ratified by the children after they attain majority, or while they are minors, by a decree of court on the advice of a family meeting, such ratification, even though made after the institution of a suit by the vendee of the property to annul the sale, will cure any defect in the sale arising out of the wife’s want of power to sell when that defect is set forth in the act of conveyance to the vendee, and he consents in the act, that the defect of title may be subsequently cured and the sale thereupon perfected.
    The failure of a vendor to perform a condition of the sale is a passive breach of' contract, and before an action to annul because of such breach can be maintained, the vendor must be put in default. An offer to annul made by the vendee does not amount to a default.

      ÁPPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Lacey & Butler for plaintiffs and appellees.

      A. & W. Voorhies for defendant and appellant.
   The opinion of the court was delivered by

White, J.

The plaintiffs, having bought from defendant a piece of real-estate in the parish of St. Tammany by act of sale passed before E. G. Gottschalk, notary public, on the 14th of June, 1866, instituted on the 25th of March, 1872, the present suit, in which they prayed that the sale made to them by the defendant be decreed to be null and void, that she be ordered to receive back the property by her sold them. They asked, in addition, the repayment of the cash price paid, and for a judgment for the value of the improvements put by them on the property. The cause of action upon which this prayer was founded is stated as follows:

1. The non-compliance by plaintiff with an obligation assumed by her to settle a tacit mortgage in favor of certain minors said to rest on the property sold, at the date of sale.

2. The fact that the defendant was not the owner of the property sold at the time of sale, rendering the sale therefore absolutely null under C. C. 2452.

The defendant resists on the following grounds:

First. That the mortgage complained of was no longer binding on the property sold, because of its not having been registered under the act of 1870. That even if binding the plaintiffs had retained under the terms of the act of sale a sum adequate to pay the mortgage and therefore could not complain of its existence.

Second. That the want of title complained of was as follows: the property sold to them by defendant was acquired by her from Mrs. Odile Derbes, widow of John Baptist Bellocq, and had belonged to the community existing between them, had passed at the date of the death of Bellocq to his surviving widow, as owner of one-half, and to his five children as owners of the other half. That if at the time of sale to her by Mrs. Derbes or at the date of her sale to plaintiffs there was any nullity or want of title it had been cured by a proper ratification made by the heirs of Derbes, which ratification completely destroyed plaintiffs’ right of action and deprived them of all just cause of complaint.

Third. Tnat if there was a want of title at the date of her sale, it was known to the purchaser, one of the plaintiffs, and he can not therefore complain.

Fourth. That since the date of sale to plaintiff he had been either through himself or his co-plaintiff, to whom he had sold, in undisturbed possession of the property, without threat of eviction, and therefore could not be heard to attack the title under which he held for the purpose of relieving himself from the obligations of a contract legally entered into.

The evidence in the record both as to the title and claimed ratification is documentary, and the proof ministered by it is as follows :

On the 29th of September, 1860, Mrs. Derbes sold to defendant the property in controversy. At the time of the sale the property was only owned by her in indivisión with her children, having formed a part of the community which had existed between herself and her deceased husband. On the 14th of June, 1866, the defendant transferred the-property thus acquired to Oharpaux, one of the plaintiffs, the act of sale containing the following stipulation : “ and it is further understood and agreed that the two notes thus subscribed by him, said Oharpaux, shall remain in his possession until the said Mrs. Gibert shall have complied with all the stipulations herein contained concerning the furnishing of a good and valid title to said property.” On the 8th of April, 1867, Charpaux transferred this property to his co-plaintiff. There is no question as to the undisturbed possession of both since the sale, up to the institution of the present suit, on the 25th March, 1872, nearly six years after the date of their acquisition. The facts as to the ratification are as follows : On the 13th of April, 1872, a few days after the institution of this suit, the major heirs of John Baptist Bellocq expressly, by act before Doriocourt, notary public, ratified and confirmed the sale made by their mother, Mrs. Derbes, to the present defendant. One of the heirs being a minor, a petition was presented to the Second District Court which stated that by some mistake in the original proceedings had to adjudicate the community property to the widow upon the death of her husband the property in controversy had been omitted or not adjudicated ; that in consequence of such omission and want of knowledge she had sold said undivided half along with her own; that she was willing that the minor’s share of the proceeds should be taken from the cash proceeds of sale, which sale exceeded the value of the property in the inventory of her husband’s succession. She prayed a family meeting, which was ordered and held, and recommended the confirmation and ratification of the sale, the deliberations were homologated by the court, and authority given to pass the necessary act of ratification, which was accordingly done. Under this state of facts judgment was rendered by the lower court annulling the sale, and that judgment is now before us for review.

The counsel for plaintiff and appellee have waived in their brief the question of the right to rescind growing out of the alleged mortgage. Their position, as we look at it, is :

1. That the ratification tendered is not sufficient.

2. That even if sufficient, there being no title in their vendor at the time of their purchase, the sale was null under 0. O. 2452. That any ratification made after the institution of their suit is inoperative, as their rights are to be tested by the state of things in existence at the date of their demand. We think none of these positions tenable.

1. The ratification is good; as to the major heirs, it certainly validated the title; as to the minor heir, it had the same effect. We deem it useless to enter into a discussion as to the nature of the nullity of the sale of a minor’s property by private sale. Grant that such a nullity ■ be one of quasi public order, it is established in the interests of the minor, and can be ratified by him when sui juris. This was not, however, a sale of minor’s property; it was a sale of community property. The court and family meeting would have had the power to adjudicate by original act and the ratification did nothing more. Whatever • dissidence may exist on the subject, the overwhelming weight of authority is in favor of the power of the court and family meeting to do by ratification that which they could do by original act. In fact, such is the textual provision of our Code. C. C. 1794; Bank of Lafayette vs. Delery, 2 A. 648 ; Vaughan vs. Christine, 3 A. 328 ; Dunbar vs. Creditors, 2 A. 727.

2. The ratification being binding, can the plaintiff be heard to escape his obligations by complaining of a nullity which is cured completely? His position is that his rights were fixed by his petition, that' the nullity is absolute, and no ratification tendered him after his suit is of any effect. Let us see. Grant for the purposes of examination that' a vendee may be heard to invoke the nullity of a sale made in violation of C. C. 2452, even although not threatened with eviction. Grant that the nullity of the sale of the property of another is so radical that the' vendeeby a simple act of volition may repudiate it, may refuse to accept a ratification tendered after judicial demand. Are the plaintiffs within the rule ? Is the sale in controversy, the sale of the property of another, within the prohibition of C. C. 2452 ?

In saying that the sale of the property of another is null, the authors of the Code Napoleon, art. 1599, whence C. C. 2452 is drawn, departed from the ancient law. The departure, however, was rendered necessary in consequence of a fundamental difference between the theory-of sales as embraced in the Roman law and that adopted in the Code Napoleon, and our own Code, the Roman law sale importing simply possession, while that of the Code Napoleon and our own imports not only the transmission of possession but also that of ownership or title. These reasons were the operating cause of the insertion of the provision of article 1599 in the Code Napoleon, whence they have passed into our own, and were expressed by the compilers who framed and lawgivers who adopted the Code Napoleon.

Pardess. Expose des Motifs, No. 19 ; Locre, Title 7, p. 73 ; Grenier, Discours No. 15 ; Loeré, Title 7, p. 109 ; Eaure, Rapport auTribunat,No. 18 ; Loeré, Title 7, p. 91.

Does a sale in terms purporting not to transfer title fall within the Inhibition of art. O. C. 2452 ? We think not, because if that article declares the nullity of the sale of the property of another person for the reason that title is supposed to flow from the act, its provisions manifestly do not apply to a sale, where by agreement between the parties the title is not conveyed hut the obligation to procure it is simply assumed by the vendor. Such is the opinion of the French jurisconsults : “ Je conviens avec vous que je vous vends tel immeuble appartenant a votre voisin, et je m’oblige a l’acquerir, a vous le livrer. Est-ce-la vente de la chose d’autrui ? Non, a vrai dire, ce n’est pas une vente ; le dóbiteur s’engage a acquerir d’abord l’immeuble, ce qui est une obligation de faire. C’est seulement quand il aura acquis l’immeuble que la vente s’accomplira. De méme, si je me porte fort que Pierre vous vendrá sa maison pour tel prix, la convention est valable; sur ce point il n’y a pas de doute, puisque nous avons une téxte: l’article 1120; ce n’est pas la vente de la chose d’autrui par 1’excellente raison que ce n’est pas une vente ; c’est une obligation •de faire, sanctionnée pas des dommages--intóréts. Il faudrait encore regarder comme valable la convention formulóe en ces termes: “Je vous vends la maison de Pierre pour tel prix.” Ce n’est pas une vente ; c’est un engagement ou de me procurer cette maison pour vous la livrer, ou de faire que Pierre vous la livre. La formule difiere, mais la convention est identique.” Laurent, v. 24, p. 115.

Zachariee says: “ D’un autre cote, cette disposition est inapplicable a la vente de la chose d’autrui, contractée sous la condition suspensive de 1’acqu'isition de cette chose par le vendeur, ainsi qu’a celle lors de laquelle ce dernier s’est porté fort pour la veritable proprietaire.”

Troplong says: “On peut aussi vendre la chose d’autrui en se portant fort de faire ratifier la vente par le propriétaire.”

Troplong de La Vente, vol. 1, p. 318, No. 234.

Duranton, 1.16, No. 179.

The jurisprudence of France inculcates the same principle. DePreignan c Hue & Fortanier, Cassation 8th January, 1866. Journal du Palais for 1866, p. 258: and so teach the courts of Belgium upon an identical provision of law. Laurent, vol. 4, p. 118.

Does the sale in this case come within this doctrine? It manifestly does. The terms of the act placed upon the vendor the obligation of procuring title, and these terms read by the allegations of the petition make it more than clear that the act did not purport to transmit title, but that the procurement of title was simply a condition of the sale. The averment is “ that in and by said act of sale it was stipulated and agreed * * * * until certain defects in the title were cured the cash payment of one thousand dollars should not be exigible.”

Again: “ that on account of the unreasonable delay and continued failure on the part of defendant to perfect the title,” etc., etc. The sale then is not stricken with the nullity provided under C. C. 2452. It did not purport per se to transmit title. The procurement of title being one of the obligations of the contract, of course legal rights resulted from it. Whatever view may be taken, the obligation was either the obligation of doing or a condition. If of doing, then inaction not being an active violation default was prerequisite. C. C. 1931,1932,1933. We do not consider that the offer to annul was such default. If a condition, of ■course under the implied resolutory condition, the contract1 being commutative, it could be rescinded in the event of non-performance; but rescission under the implied resolutory condition is within our sound ■discretion as to time. 0. C. 2047. We see no reason to rescind a sale on the ground of non-compliance with the condition thereof when a full performance is tendered in answer to the suit.

The judgment of the lower court was in favor of the plaintiff. It is reversed; and, proceeding to render such judgment as should have been rendered by the lower court, it is ordered, adjudged, and decreed that there be judgment against the plaintiff and in favor of the defendant, dismissing plaintiffs’ suit at their cost; all costs of the lower court prior to the filing of defendant’s answer to be paid by defendant.

Rehearing refused.