author: Wyly, J. Ludeling, C. J. Howe, J., Howell, J. Ludeling, C. J. Wyly, J., Hoave, J.

text:
    No. 107.
    J. T. Swan v. Ann L. Gayle, Administratrix—Amanda J. Knox et al., Intervenors.
    The right given by law to the vendor to have the sale dissolved on the failure of the purchaser to comply with the terms thereof, by paying the price stipulated, is not transferable, and does not pass with the transfer of the notes or obligation of the purchaser held by the vendor. In such a case only the right of the vendor to enforce the payment of the notes with the securities, passes to the indorsee, hut not the right to rescind or disturb the sale itself.
    from the Fourteenth Judicial District Court, parish of Ouachita. Bay, J.

      Biehardson <& MeEnery, for plaintiff and appellee. Gcvrrett & Garrett, for defendant (administratrix), appellant. Morrison c6 Earmer, for intervenors.
   Wyly, J.

In July, 1859, H. Eilhiol sold to W. H. Gayle the house and lot in Monroe, described in plaintiff’s petition, for $6050, evidenced by the three promissory notes of the latter, made part of the petition, and also another note for $2000, which has been p^iid.

The plaintiff, the indorsee of said notes, sues the defendant,, the administratrix of the succession of the vendee, to dissolve the sale for non-payment of the price. The court ordered the defendant to pay the price within the time fixed in the decree, and in default thereof ordered the dissolution of the sale as prayed for.

From the evidence we are satisfied that the notes evidencing the obligation of the buyer have not become prescribed.

The main question in this controversy is, can the resolution of the sale he demanded by the indorsee of the notes representing the unexecuted legal obligations of the buyer ?

We think that it can.

The owner of the notes owns the unexecuted obligation of the buyer with all the securities and remedies provided by law for its enforcement.

The conveyance of perfect ownership by the seller and the delivery of the possession, completed the execution of the contract of sale on his part; the corresponding obligation of buyer was deferred till the maturity of the notes. His engagement was to pay the price or restore the thing. „ The performance of the one or the other, the express or the implied condition, would discharge the legal obligation on his part. The decree dissolving the sale executes the contract as fully as the decree ordering the payment of the price.

Whether the express or the implied condition he performed by the buyer is immaterial; the performance of either consummates his engagement.

If the buyer does not pay the price the seller may sue for the dissolution of the sale.” R. C. C. 2561. Why? Because, taking the thing upon two conditions — the one expressed to pay the price, the other implied to restore the thing — he is liable to be pursued by the seller for a compliance with either condition after being in default for the price. As security for the obligation of the buyer, the seller may demand the price with the vendor’s privilege on the thing sold, or he may demand the restoration of the thing itself.

These are the remedies provided by law for the enforcement of the' obligation of the buyer.

The vendor’s right to pursue either remedy does not result from an obligation personal to himself; it is only because he is the owner of the obligation of the buyer.

The owner of a legal obligation is necessarily clothed with all the remedies provided by law for its enforcement.

It would be absurd to say that the owner of a legal obligation does not own the remedy or remedies provided by law to compel its execution. Having the legal right, he owns the corresponding legal obligation of the buyer, whereby is imposed on the latter the juridical necessity of performing or discharging that right or duty in the manner provided by law. The duty of the buyer may be discharged by payment of the price or by restoration of the thing; and the only person who can invoke the law to compel this discharge of duty is the party owning the obligation. He alone is aggrieved where the buyer is in default for the price ; and he alone has cause to complain.

We think the right and the remedy or remedies are inseparable.

The right to compel the performance of the obligation in the case before us belongs to the plaintiff as the owner of the notes, evidencing the unexecuted obligation of the buyer, and he has the right to ask the intervention of the State to compel its performance. He may demand the application of the remedies of the law in such cases made and provided.

In George, curator, v. Lewis, 11 An. 655, this court said : “ The dissolution of a commutative contract for non-compliance by either party with his engagements is really the carrying into effect of a part of their convention, either express or implied. * * * The plaintiff might have sued successfully for the price and claimed the vendor’s privilege on the land. He resorted to a concurrent remedy' by demanding the dissolution of the sale,” etc. See also the authorities cited in that case.

The character of the dissolving condition was determined by this court as early as 1824, and the correctness of the ruling has not since been questioned. Torregano v. Segura, 2 N. S. 159. In that case where the surety of the buyer for the price of a slave paid the debt and sued the syndic of the latter to dissolve the sale, on the ground of legal subrogation existing in his favor, whereby he became entitled to pursue the same remedy as the vendor, it was urged in defense “that although the plaintiff as indorser was bound in solido with the vendee, ■he is nevertheless a third party as regards the contract, a'nd does not become subrogated to the rights of the vendor (the right to dissolve the sale) unless this be expressed in a notarial act at the time of the payment. C. C. 288, 150.

Further, that without this formal subrogation the plaintiff could not have an apparajada execution, because there would be no transfer of the judgment which the act of mortgage imports; neither can he bring the action of rescission, because he is not a party to the sale, and were it rescinded, the title would revert to the vendor, so that the plaintiff could have no benefit thereby.” The court decided through Judge Martin, its organ, that “the subrogation is of the right of the creditor, not against the debtor only, but also against the securities, C. C. 188, 149 and 152, and like a transfer of a debt, it includes everything which is accessory thereto, as suretyship, privileges and mortgages. C. C. 368, J24.

“ The rescission of the sale is a means of securing the payment which the vendor, the creditor of the price, has. This right is an accessory of the claim, and would pass by the sale or transfer of it. The subrogation has, in our opinion, the same effect.”

Now, as there is no doiibt that the plaintiff owns the claim or debt evidenced by the notes, it follows that he also owns the accessory right or remedy of resolution appertaining thereto, and it passed to him by the indorsement of the notes.

As to the argument that the plaintiff can not demand the dissolution of the sale, because he was a third party, and were it dissolved the title would not vest in him but in the vendor, so that he could not be benefited thereby, we will remark that was the ground taken in the case decided in 1824, and Judge Martin attached but little importance thereto, and we entirely concur in his conclusion.

Whether Gayle was insolvent or not could not defeat the resolutory action. This was also made a .point, without effect, in Torregano v. Segura’s Syndic, to which we have referred. The dissolving condition was not lost by failure to reinscribe the mortgage within ten years. 12 An., Johnson v. Bloodworth, 699, and authorities there cited.

There is no force in the plea of the prescription of ten years, acquirendi causa. The buyer in default for the price can not urge that defense to the enforcement of the unexecuted obligation lying at the foundation of his title. As long as the obligation of the buyer subsists and may be enforced in either the modes provided by law, he will not be heard pleading his possession of ten years in bar of the enforcement of the condition on which he acquired that possession. His title, as to his vendor, was -not indefeasible as long as his legal obligation to pay the price subsisted. As to the failure of the plaintiff to offer to réstore the installment which he received before demanding the resolution of the sale, we will observe that the record furnishes ample evidence of a sufficient offer. Only one of the notes was liable to the plea of prescription of five years, and that was waived by Gayle in 1867, the waiver being indorsed on the notes.

The other defenses are not of a serious character.

It is therefore ordered that the judgment appealed from be affirmed with costs.

Ludeling, C. J.

I concur in the decree in this case, on the authority of Torregano v. Segura, 2 N. S. 159.

Howe, J.,

concurring. The question whether the transfer of a note ■given for the price of lands carried with it to the transferree the right to dissolve the sale, is not free from difficulty. I think, however, it was decided in the affirmative in Torregano v. Segura, 2 N. S. 162, and we are under no obligation to reopen the discussion. I concur in the decree affirming the judgment of the district court.

Howell, J.

Not being' able to concur in all the views,expressed by the majority of the court in this case, the right to file my own at a, subsequent date is reserved to me by the court.

On Rehearing.

Ludeling, C. J.

This is a suit for the dissolution of a sale for the non-payment of the price.

On the eighteenth of July, 1859, H. Filhiol sold a house and lot in the town of Monroe to W. H. Gayle for $6050, for which four promissory notes were executed — one due January, 1860, for $2000, and three others each for $1350, due on the first of March in the years 1861,1862 and 1863. The first of these notes was paid by Gayle, and the other three were transferred to Joseph T, Swan by the following indorsement on the back of each : “ Without recourse, H. Filhiol.” On the ninth of February, 1867, suit was instituted against the succession of Gayle by the plaintiff in this suit for the amount of the three notes held by him, which was dismissed for want of jurisdiction ratione material. 21 An. 478. And then this suit was instituted, -after first procuring from Filhiol what the plaintiff calls an act of subrogation, which recites that he had “heretofore transferred and delivered to J. T. Swan” the said notes, and that “ it was his intention to transfer to him, with said notes, all the rights said Filhiol had against Gayle growing out of said purchase of the above property from Filhiol, and not only subrogate said Swan to all his (Filhiol’s) rights in and to said notes and the mortgage and privilege to secure their payment, but also to said Filhiol’s right to have the sale set aside for the non-payment of the price,” ete. This act was passed on the fourth of September, 1869, about two years after the transier of the notes to Swan. To the reception of this document the defendant objected, on the grounds that it was res inter alios acta; that it was an attempt to introduce in evidence against him the unsworn declarations of Filhiol, and without affording him an opportunity to cross-question him; and that it was an attempt to contradict, vary and explain the transfer in writing on the back of the notes. These objections, we think, should have been sustained. 22 An. 322; 23 An. 589, 445. But if the act were properly in evidence it would not materially change the facts. Filhiol could not subrogate Swan to anything which did not pass at the date of the sale of the notes. 5 R. 207; 19 R. 477; C. C., article 2160.

The questions presented for solution in this case are important, and two of them we think have never been directly decided by this court, to wit: Whether the right of the vendor to dissolve the sale for the non-payment of the price can be sold by him, and whether that right is an accessory to the notes evidencing the unpaid price? We do not deem it necessary in this case to pass upon the first question, as there evidently was no sale of this right, unless it passed to Swan as an accessory to the notes acquired by him. Two cases have been referred to in which expressions are used by this court which would indicate that the court considered that right to be an accessory of the notes. In Torregano v. Segura, 2 N. S. 158, the court said: “The rescission of the sale is a means of securing the payment of the price, which the vendor, the creditor of the price, has; this right is an accessory of the claim and would pass by the sale or transfer of it.” In the case of the Citizens’ Bank of Louisiana v. Cuny and others, the court said : “ The vendor’s privilege gives.to the vendor, in addition to the right to have the property sold to pay the price, a rank in relation to other creditors of the vendee which he might not otherwise have. It confers upon the vendor a right to the rescission of the sale on the nonpayment of the price.” 12 R. 281. In both cases, however, the expressions were used arguendo. The question before the court for decision in those cases did not require the decision of this point. In the latter case the only question presented was 'whether the cancellation of a special mortgage given to secure the payment of notes for the price for lands destroys the vendor’s privilege to secure said notes.

In the case of Segura there was no sale or transfer of a note or credit. The surety who had signed the notes with the vendee, and who had paid the notes, 'asserted by that law he was subrogated to all the rights of the vendor.

On the other hand, in the case of Johnson v. Bloodsworth, the court used the following language: “But it is impossible to confound the resolutory action with the vendor’s privilege. The former is not a mere appendage of the latter.” 12 An. 699. And this also was said arguendo, for the question beiore the court was: “When the vendee of a slave, holding by private act unrecorded, has mortgaged the slave to a third person by public act duly registered, can the unpaid vendor enforce the implied condition against this vendee to the prejudice of the mortgage creditor of the latter 9 ”

These expressions ought not to be regarded as authoritative, and we will treat the question as a new one not adjudicated upon by this court.

The sale or transfer of a credit includes everything which is an accessory to the same.” C. C. 2645. “A principal contract is one entered into by both parties on their own accounts, or in the several qualities they assume. An accessory contract is made for assuring the performance of a prior contract, either by the same parties or by others; suchas suretyship, mortgage and pledge.” C. C. 1771. The accessory obligation or right, then, is something which may aid to enforce the principal obligation; if the principal obligation is -extinguished the accessory right ceases to exist also.

The action for the resolution of the sale implies and presupposes the renunciation of the right to demand the payment ot the price. “If the buyer does not pay the price, the seller may sue for the dissolution of the sale.” C. C. 2561.

“ Now, a right which can not exist so long as another right exists, can not be an accessory of the latter.”

Mr. Marcadé says:

“ Loin que le premier droit soit l’accessoire du second il ne coexiste méine pas avec lui, il ne lui est pas concomitant, il ne p end naissance qu’aprés qué celui-ci a cessé d’exister: la demande en résolution implique et presuppose la renonciation au droit de demander paiement, la renonciation á la cróance; ou, un droit qui ne peut pas exister tant qu’existe un autre droit ne peut certes pas étre l’accessoire de celui-ci.”

Marcado, vol. 6, p. 334, commenting on article 1692 Mr. Duvergier .says, No. 222, p. 259:

“Que le vendeur payé en billets, en transmettant ces billets á un •tiers, lui céde le droit d’exiger le'paiement et aussi le privilége; c’est-a-dire, le droit d’étre payé par préférence, ruáis ne lm cede pas Vaction en résolution de la vente, parce que cette action n’est pas Taccessoire du droit Wexiger le paiement; elle suppose, au eontraire, le non-paiement.”

What did Eilhiol sell to Swan? Three notes with the accessory rights of mortgage and vendor’s privilege to enforce their payment— nothing else. And Swan acquired no other right from Filhiol than such as are necessary to enforce the payment of those credits or debts. The right attempted to be exercised in this case is certainly not to collect those notes.

Suppose Filhiol had sold the property for less than half its value, could it be pretended that in buying the notes given for the price Swan acquired Filhiol’s right to rescind the sale for lesion beyond moiety ? He did not buy all the rights of the vendor resulting from the contract of sale to Gayle, but only the notes with their accessories-He did not by buying the notes take the place of Filhiol in the contract of sale, else the purchaser of a negotiable note, given for the price of property, would become the warrantor of the title to the property. A proposition which leads to such an absurd conclusion ought not to be sustained by a court of justice.

This view of the case renders it unnecessary to pass upon the questions of default, tender and prescription raised in this case.

It is therefore ordered and adjudged that the judgment of this court heretofore rendered in the case be set aside, that the judgment of the court a qua be reversed and annulled, and it is decreed that there be judgment in favor of the defendant rejecting the plaintiff’s demand, with costs of both courts.

Wyly, J.,

dissenting. I adhere to the former opinion of this court in this case. The right to dissolve the sale is either a principal or an accessory contract. It must fall in the one or the other of these classes. So far as the result of this case is concerned it is immaterial under which class the court places it.

If it is an independent or principal contract it can be transferred,, separate from the notes, at any time the owner sees fit to do so. It is-only accessory contracts that must pass by subrogation at the time of the transfer of the principal contract. By the notarial act of the iourthof September, 1869, Filhiol declares that at the time he transferred the-notes to Swan he intended not only to convey the notes and the mortgage and privilege to secure the payment, “but also his (Filhiol’s). right to have'the sale set aside for non-payment of, the price.” Here,, then, in September, 1869, Filhiol transfers or .donates, under the form, of a sale, his independent right or contract'(if such it may be called) to dissolve the sale. Yet the „court rules out of the evidence the-notarial act showing the transfer of what the court in the latter part of its opinion practically treats as an independent contract.

If the right to dissolve the sale be an independent contract, and the-finding of the court rests upon no other hypothesis, the transfer by authentic act of that independent right or contract was admissible, the lower court did not err in receiving it, and this court erred in ruling it out on this rehearing. In other words, in my judgment, this court ruled out the transfer of September 4, 1869, on the hypothesis that, being an accessory contract, it should have been made at the time of the transfer of the notes; and then turned round and decided against the enforcement of the dissolving condition on the hypothesis that it was not an accessory contract, but an independent contract which had not been transferred.

I repeat, that if the right to dissolve the sale be an independent contract, the transfer thereof by authentic act in September, 1869, was permissible, and the court had no right to rule out this authentic evidence of the transfer, unless the court should hold that this right is not transferable. I hardly imagine that a contract of this character will be considered personal and not transferable. This right is property, and all property is transferable, except such as is by law excepted from the general rule] that the'right of disposition or the right to sell is essential to perfect ownership.

Therefore, if the right in controversy is an independent right which the owner could transfer at any time, the plaintiff, the transferree of that right under the notarial act of September 4,1869, can enforce it.

But if the right to dissolve the sale be an accessory right or a remedy incident to the principal contract of sale, as I believe, the plaintiff, the owner of the obligation, can enforce it without an act of transfer or an act of subrogation. Now, the rule that “ a right which can not exist so long as another right exists, can not be accessory to the latter,” has no application to this case.

The right to dissolve the sale exists from the beginning or the date of the sale, but it does not become exigible -till the debtor of the contract is in default for the price.

The accessory contract of warranty exists from the day of the sale,, because of the nature of the contract, yet it is not exigible and never becomes so till the eviction of the purchaser occurs.

The right to dissolve the sale is, in my judgment, an incident of the contract of sale; it is an accessory contract with a suspensive condition but a perfect and complete one from the date of the sale, notwithstanding the suspension thereof.

I can not agree with tbe organ of the court that what was said by Judge Martin in Torregano v. Segura, 2 N. S. 159, was merely arguendo, expressions not necessary to the decision of the case, and therefore not authoritative. The decision speaks for itself. Upon the basis-that the dissolving condition is accessory to the principal contract of sale the court held that the plaintiff, the surety, who paid the debt became subrogated thereto, became the owner of the debt, the creditor. ■of the contract, and as such acquired with it all the accessory rights, including the right to dissolve the sale.

For these reasons and those stated in the first opinion rendered by this court in this case, I respectfully dissent from the views expressed ■by the majority of the court.

Hoave, J.

In my opinion our decree should remain undisturbed. :By the transfer of the notes and the special assignment of Filhiol’s rights as vendor (both of which were subjects of transfer) the plaintiff became A'ested with all the rights of the original vendor. Duvergier’s Toullier, vol. 17, 275, citing Sirey 26, 2, 189; Dalloz 26, 2, 156; Sirey •23,2, 57; Rogron’s C. N. 1692; Paillet’s C. N. 422; Lahaye’s C. N. 1692; Torregano v. Segura, 2 N. S. 158.

There is no question of subrogation in the case, either legal or conventional, for there has been no payment, and without payment there •can be no subrogation. Rogron’s C. if. 1248; 1249 and 1250; C. C. of 1825, articles 2155 and 2156. The case is governed by the rules in ¡regard to sales. (


source: Caselaw Access Project

author: Howe, J. Howell, J.,

license: Public Domain

text:
    No. 327.
    G. & H. King, in liquidation, v. F. E. Bowman.
    In a proceeding by the hypothecary action against a third possessor of mortgaged property, who holds it under a sale made by the assignee in bankruptcy, the putting in default is unnecessary.
    'The proceeding by the hypothecary action to enforce a mortgage on property which has been surrendered in bankruptcy is not a bankrupt proceeding, and the State courts have jurisdiction to enforce such action.
    .A mortgagee does not lose his rights of mortgage on property by participating in tlie bankrupt proceedings, such as voting for an assignee, etc., nor does the sale made by the assignee divest the mortgagee of his right to pursue the property in the hands of the purchaser by the hypothecary action. In such a case the bankrupt court only passes such title as the bankrupt himself could pass.
    from the Fourteenth Judicial District Court, parish of Ouachita. Hay, J.

      Stubbs & Cobb, for plaintiffs and appellants ; JMorrison & Farmer, for defendant and appellee.
   Howe, J.

This is an hypothecary action commenced by plaintiffs to enforce their judicial mortgage, resulting from the record of a judgment obtained by them against W. S. Grayson, in the office of the recorder of mortgages of Ouachita parish, on the seventh of April, 1866, for tlie sum of $5706 30, with interest at eight per cent.

Plaintiffs allege that at the time of said record, Grayson, their judgment debtor, was in possession and ownership of a tract of land containing seven hundred and three and ten one-hundredth acres, situated in Ouachita parish, and that their judicial mortgage attached thereto.

They also aver that defendant is now owner and possessor of said land through a chain of title, set forth in petition.

It is also alleged that the judgment debtor, Grayson, made a voluntary surrender in bankruptcy in August, 1869, and that, tbe land was surrendered by him.

Appellants contend that tbeir mortgage on said land bas never been divested by any of tbe conveyances by which it came into tbe bands of tbe defendant, and tbis suit is to enforce tbeir hypothecary right for the amount of tbeir debt.

Defendant Bowman filed an exception, alleging be had not been put in default, and that no allegation of demand and notice was contained in petition.

Tbis exception was overruled, and defendant filed his answer, calling his vendor, W. G. Kennedy, in warranty, and pleading general denial.

Kennedy, Bowman’s vendor, appeared and filed an exception that tbe State courts have no jurisdiction in a suit to enforce mortgages on property that bas been surrendered in bankruptcy; that tbe United •States District Court bas exclusive jurisdiction.

He answers over and alleges that plaintiffs abandoned and forfeited ■tbeir judicial mortgage on tbe land described in petition, by having proved then’ claim and participated in tbe election of an assignee before tbe register in bankruptcy; and be calls W. W. Farmer, bis vendor, in warranty.

Farmer answered the call,- and set forth tbe grounds in his answer ■why tbe call should be dismissed, and on motion of Kennedy’s counsel there was a judgment of non-suit on tbe call. There was judgment -in favor of defendant and warrantor, and plaintiffs have appealed. Tbe defendant also appealed, to preserve bis rights against tbe warrantor.

G. & H. King obtained judgment against W. S. Grayson, in Twelfth District Court of Ouachita, on the seventh of April, 1866, for $5706 30, with eight per cent, interest; on $3468 23 from twenty-sixth of April, 1861; on $1818 89 from first of July, 1862, and on $419 18 from first •of January, 1866. A copy of tbis judgment was recorded in tbe book of mortgages on same day.

Grayson paid on tbe first of October, 1866, $621 41, and is credited with tbis amount. Grayson was tbe owner of 710 3-100 acres of land in Ouachita parish, after tbe seventh of April, 1866, to wbicb the judicial mortgage of plaintiffs necessarily attached between tbe time of its record and the time of his surrender of tbe land in bankruptcy, thirteenth of August, 1867.

Grayson was duly adjudicated a bankrupt, and a warrant to tbe messenger in bankruptcy was issued. G. & H. King were placed on tbe schedule of Grayson as creditors, secured by judicial mortgage on the land surrendered.

Notice was served on, them (G. &-H. King) by the messenger to-attend the first meeting of creditors for the purpose of electing assignees.

G-. & H. King proved their claim by affidavit before W. J. Q. Baker, register, on thirtieth of September, 1867, under form 21 prescribed by the Supreme Court of the United States — their debt exceeding the value of their security — and attended the first meeting of creditors of the bankrupt, held on that day, and voted for J. Hoffman as assignee.. There was no choice by creditors, and the register appointed Warren G-. Kennedy assignee, and he -accepted the trust. This was the last appearance ot plaintiffs in the bankruptcy proceedings of Grayson.

The register made the deed of assignment required by law on the first of October, 1867.

Kennedy gave the required notice of his appointment by advertisement on October 1, 1867, and on the ninth of November, 1867, without any order of the bankrupt court, he advertised the 710 3-100 acres of land for sale on the seventh of December, 1867; and on seventh of December the land, without Order of court, was sold to W. W. Farmer, at auction, for $1075, and title deed executed on the tenth of December, 1867. On the same day Farmer made a title to Kennedy of this same property, excluding warranty, except as against his own acts.

The consideration of this sale from Farmer to Kennedy was a judgment obtained in the Second District Court of Texas by Kennedy n. C. H. Morrison, for the sum of $5829 87, with five per cent, interest from thirteenth of September,-1866, transferred by Kennedy to Farmer.

On the twenty-eighth of December, 1869, Kennedy sold this land to-Bowman, the defendant and third possessor, against whom this action is brought, for the sumof $14,000.

It appears from the assignee’s account that the bid of Farmer, $1075, and $42 25. from sale of personal property, was all that was realized from the bankrupt estate, amounting to a balance of $904 22 after paying costs. The register ordered the assignee to pay $787 41 of this amount to C. H. Morrison, the oldest judgment creditor of the bankrupt, and the balance, $116 22, to Byrne, Vance & Co., the next in rank.'

I. The plaintiffs in this hypothecary action were clearly dispensed from the necessity of demand and notice, as provided by act 69 of the Code of Practice, by the bankruptcy of Grayson. Not only was he insolvent, but proceedings against Mm had been stayed. A demand on him and a notice of such demand to Bowman would have been a vain ceremony to which the law compels no one. Cummings v. Erwin, 15 An. 289. This consideration disposes of all preliminary technical questions in the case.

II. There is no force in the exception to the jurisdiction of the. •court a qua. This is not a proceeding in bankruptcy, nor an action against property under administration by the bankrupt court, nor a suit against a person under the protection of that court. The fact that the land on which plaintiffs seek to enforce their hypothecary right was once sold by an assignee in bankruptcy leads in this case to an interpretation of a law of the United States, and may lead to an appeal to the Supreme Court of the United States, but it does not deprive the State tribunal of jurisdiction.

III. An assignee in bankruptcy may sell, without petition to or order of the bankrupt court, any property of the bankrupt incumbered in any manner. But when he so sells, he sells subject to any and all lawful incumbrances, and can convey no better or higher interest than the bankrupt could have done. It will be taken for granted that he sold only such right or title to the property as was vested in him, and therefore sold it subject to the incumbrances. The sale in this case by the assignee was of this sort.

But the appellees contend, as the main point in the case, that the appellants, by proving their claim and voting for an assignee, abandoned and forfeited their judicial mortgage, and reduced themselves at once to the rank of ordinary creditors.

No one is easily presumed to give up a right, especially of preference by way of mortgage or lien on the property of an insolvent. The present bankrupt law seems intended to carefully preserve such rights. If a secured creditor prove his claim as unsecured, without apprising the bankrupt court of the .existence of his lien, he has been held to waive that lien, relinquishing it to the assignee. Stewart v. Isidor, 1 B. R. 129. In re Bloss, 4 B. R. 37 — Bump’s Treatise, p. 79. But in this case, under form 21, for the proof of debt with security, the plaintiffs, as thereby required, set forth with particularity their mortgage, the property on which it bore and the estimated value of such property. It has been held that proof of a secured claim under this form does not invalidate the right of the creditor to his lien. In re Bigelow, 1 B. R. 186; in re Snedaker, 3 B. R. 155 — Bump’s Treatise, p. 80. And this seems to be reasonable, and to have been the view of the justices of the United States Supreme Court who prepared these forms. Why should a creditor who expressly claims a mortgage be held to have thereby impliedly abandoned it? Why should form 21 require a creditor to make a statement of his lien, the property on which it rests and the value of the property, if the effect of the use of such form should be to forfeit that lien? We can hardly imagine that form 21 was devised as a trap and pitfall. It was doubtless meant to be used as a step in the process by which’the secured creditor, under section 20, may negotiate with the assignee for the property itself, in case it exceed in value his debt; or in case the debt exceed the value of the property, he may be admitted as an ordinary creditor for the-amount of such excess.

Nor can we perceive that the fact that plaintiffs voted at the election-of the assignee ought in reason to be construed into an abandonment and forfeiture of their mortgage. It has been held that a secured creditor has no right to vote; but it has been held by equal authority that he has. In re Bolton, 1 B. R. 83. We do not see why he should not vote, at least to the extent of his debt over and above the value of his security. This excess may be .as well established by the oath of such creditor as an ordinary debt by the oath of an ordinary creditor.

The secured creditor has as much interest in the choice of an assignee as any other person whom the bankrupt owes. In some eases-it might be of greater interest to him than to the ordinary creditor that the administration should be honest and skillful.

But we will suppose the plaintiffs had no right to vote. Shall their erroneous exercise, by the neglect of the register or the other creditors,, of a right which did not belong to them of voting, deprive them of another and distinct right which did belong to them? We think not.. Their mortgage, considered from the point of view of the civil law, is-a legal obligation. As such it may be extinguished by voluntary remission; but voluntary remission ought to be established with legal certainty. The gratuitous abandonment of an acquired right is never presumed. Green v. Foubene, 2 An. 958 ; Saul v. Nicolet, 15 La. 250.

It is therefore ordered that the judgment appealed from be reversed; that the plaintiffs have judgment in their favor, recognizing and rendering executory their judicial mortgage on the lands described in the petition herein, for the sum of five thousand seven hundred and six dollars and thirty cents, with eight per cent, interest per annum on the sum of $3468 23 from April 26, 1861, and the like rate of interest on the sum of $1818 89 from the first day of July, 1862, and the like-rate of interest on the sum of $419 18 from the first of January, 1866,. subject to a credit of $621 41 paid on the first of October, 1866. That the said defendant F. E. Bowman be decreed and condemned to pay said debt, interest and costs, or deliver up said lands described in said plaintiffs’ petition, to be sold to satisfy said debt, interest and costs..

It is further ordered that the defendant F. E. Bowman have and recover over against Ms warrantor W. G. Kennedy judgment for the same amounts hereinbefore decreed in favor of plaintiffs.

Howell, J.,

dissenimg. In my opinion plaintiffs made themselves parties to bankruptcy proceedings by proving up their claim and participating in the election of an assignee; and, being as parties bound by the subsequent proceedings authorized by law, their mortgage-attached to the proceeds of the property affected by it when sold, and the property passed to the purchaser free of incumbrance. It was in their power to attend the sale and make the property bring a full price.

I can not concur with my associates in their conclusion in this case..

Rehearing refused.


author: Howe, J.

text:
    No. 357.
    Ann J. Havard and Husband v. Mary B. Atkins and Husband.
    A patent that has been issued by the Governor of Louisiana through error, for public lands within the State, can not be made the basis of an action of slander of title against the * - owner, who holds the same land under an entry previously made at the land office of the United States.
    from the Eighteenth Judicial District Court, parish of Bossier. Watkins, J.

      J. D. Watlcins, for paintiffs and appellees. J. IÍ. Griffin, for defendants and appellants.
   Howe, J.

This is an action of slander of title, the plaintiffs alleging; and proving possession of and legal right to the land, and the defendants justifying under the plea of a title superior to plaintiffs’.

The defendants therefore necessarily occupy the position of plaintiffs in a petitory action, because they are not in possession, but set up a title superior to that of the persons in possession.

The cause was trhd by a jury, and a verdict having been rendered for plaintiffs, and a judgment given accordingly, the defendants appealed.

The defendants, on whom the onus rested under the circumstances • of this case, claimed title in virtue of a patent not produced, but admitted to have been issued by the Governor of Louisiana in 1861.

It was claimed on the other hand by plaintiff, and we think with' force, that this patent was issued in evident error. The land in dispute was entered by John M. Fuller in November, 1852, as swamp lands donated by the United States, and John M. Fuller took possession, and by his will donated the same to the plaintiff Ann J. Havard. This entry was never canceled, and we can only conjecture that the patent was issued by mistake, perhaps in the confusion of the late war. Kittredge v. Breand, 4. Rob. 79.

We see no torce in the objections of defendants to testimony offered by plaintiffs. The sworn and examined copy of the certificate of Fuller's entry annexed to the testimony of the officer who had the custody of the records, was properly admitted, and was quite as good as a cer- • titled copy, if not better. It was not an attempt to prove title by parol; nor was it the introduction of secondary evidence without accounting for the original.

The record of suit of Atkins v. Fuller was not improperly admitted. The parties were the same in the legal sense, and though the object of the suit was not the same, the documentary evidence showed that Atkins was advised of Fuller’s prior rights to the land in question in this case as early as 1855, and must have concealed the fact when he obtained the patent. 4 Eob. 83. In connection also with oral testimony, it went to show possession by plaintiffs — an important fact in an action of jactitation.

On the whole we conclude that the verdict was not manifestly erroneous.

Judgment affirmed.


author: Wyly, J.

text:
    No. 356.
    C. B. Connell v. Allen Medlock.
    In attachment proceedings against a non-resident the sheriff must iollow strictly the requirements of tbe Code of Practice in serving tbe attachment and citation by affixing copies of the same on tbe door of tbe building in which the court that issued the process is held, and the return of the sheriff must show that these formalities have been complied with, under penalty of nullity. C. P. 251.

    from the Tenth Judicial District Court, parish of De Soto. Levisee, J.

      Elam & Wemple, for plaintiff and appellee. Henry G.

      Hall, for defendant and appellant.
   Wyly, J.

The defendant appeals from the judgment confirming the default and giving the plaintiff an attaching creditor’s privilege on his property, the ground for the attachment being that plaintiff was a creditor for five hundred and ninety-one dollars and twenty-five cents, and the defendant was an absentee. The defendant asks for a reversal of the- judgment, on the ground that the writ of attachment was not posted as required by law.

It seems that the citation was posted at the door of the courthouse, and the copy of the petition was served on the attorney ad hoe.

The sheriff’s return does not mention that he affixed a copy of the attachment to the door of the room in which the court is held. If the defendant is an absentee, in such case the sheriff shall serve the attachment and citation by affixing copies of the same on the door of the room where the court in which the suit is pending is held.” C. P. 254.

Tliese formalities stand in place of citation served on the defendant, and must be strictly complied with. 3 E. 232; 12 E. 462 ; 9 An. 550.

It is therefore ordered that the judgment herein be -set aside, and that' this cause be remanded in order to make service of citation according to law and for new trial. It is further ordered that appellee pay costs of appeal.


author: Ludeling, C. J.

text:
    No. 344.
    Charles E. Alter v. J. B. Pickett—Paulina Pickett, Intervenor and Warrantor.
    A defendant in an hypothecary action founded upon a judgment rendered in a garnishment process, who files tho plea of discussion and deposits the amount required to carry on the discussion, is not precluded thereby from the right of appeal from the final judgment ordering the property seized to bo sold.
    A judgment rendered by one of the district courts of the parish of Orleans against a person domiciliated in the parish of Bissier, under garnishment proceeding had. under a judg* mont rendered by the district court of the parish of Orleans, is absolutely null and void, because tho district court of the parish of Orleans is without jurisdiction rations person's. This nullity is so absolute that any person having any interest therein, or is affected thereby, may at any time urge such nullity before the tribunal whore tho attempt is made to enforce it.
    The recording of such a judgment in theparish where the property of tho defendant in garnishme it is situated confers no mortgage rights in favor of tho judgment creditor, and consequently does not lay tho foundation for an hypothecary action against tho property of the judgment debtor.
    from the Eighteenth Judicial District Court, parish of Bossier. Watlcins,, J.

      Land cfi Taylor, for plaintiff and appellee. Nutt & Leonard, for intervenor and appellant.
   Ludeling, C. J.

This is an hypothecary action. On the twenty-sixth of January, 1866, the plaintiff obtained a judgment in the Third District Court of the parish of Orleans against R. C. Cummings & Co. for the sum of forty-six thousand one hundred and fifty dollars, with eight percent, per annum interest thereon. On the ninth day of February, 1866, Alter caused a writ of fieri faeias to issue under this judgment, directed to the Sheriff of the parish of Orleans, and he filed a petition propounding interrogatories to Paulina Pickett under the act of 1839. On the twelfth of March, 1866, the petition and interrogatories'were served on Paulina Pickett in person in the city of New Orleans. On the twentieth of March, 1866, she filed her answers to tiie interrogatories, denying any indebtedness to the defendants, R. C. Cummings & Co. On the twentieth of March, 1866, a supplemental petition, propounding additional interrogatories to Mrs. Pickett, was served on her- in person at her domicile in Bossier parish, and on the twenty-sixth of April, 1866, she answered the interrogatories, again denying any indebtedness to the said Cummings & Co. On the fifteenth day of May, 1866, plaintiff' Alter moved for a judgment pro eonfesso on the answers. Notice of this motion was served upon Hays & Adams. On the eleventh of June, 1866, the interrogatories were taken as confessed, and on the fifteenth day of Juné, 1866, judgment was rendered against Mrs. Pickett for thirty-two thousand nine hundred and sixteen dollars and seventy-one cents, with legal interest from the fifteenth of Maroh, 1866. This judgment was duly recorded in the parish of Bossier. After the demand and notice required by article sixty-nine of the Code of Practice this suit was instituted against James B. Pickett, the third possessor of the property, alleged' to be subject to the plaintiff’s judicial mortgage.

The defendant filed in limine Kies thepleaof discussion, and tendered the sum necessary to defray the expenses thereof. The court a qua held that the plea was an answer, and so treated it. Whereupon the defendant took a bill of exceptions to this ruling. He then filed an answer denying the validity of the judgment against Mrs. Pickett, and denying that any mortgage resulted from the registry thereof, and lie' called Mrs. Pickett, bis vendor, in warranty. She answered the call in warranty and made substantially the same defense as that set up by the defendant, to wit, she denied the validity of the judgment against her, because the Third District Court of the parish of Orleans was without jurisdiction to render a judgment against'her, as she resided at the time in the parish of Bossier.

Second — Because the writ of fieri facias against the judgment debtor bad expired, and there was no fieri facias nor any copy thereof in the bands of the sheriff at tbo time interrogatories were propounded; and served upon her.

Third — Because the court had no power to enter judgment againsb -the garnishee, who bad denied all indebtedness, without a traverse of her answers; that is, a joining of issue and notice to the garnishee to afford her a fair opportunity to be heard and to support her sworn answers by proof aliunde.

There was judgment in favor o( the plaintiff condemning the lands in the possession of the defendant to he seized and sold in satisfaction of plaintiff’s mortgage in default of its payment by defendant, subject to-the discussion of the property mentioned in the plea of discussion, which was sustained in the final judgment. Both the defendant and the interven or have appealed. The plaintiff has moved to dismiss this appeal as to the defendant, on the following grounds :

hirst — Because the plea of discussion can not be pleaded in an answer which denies the existence and validity of the plaintiff’s mortgage.

Second — Because the plea of discussion, like a plea of payment, novation or compensation, is inconsistent with and waives the general denial.

IMrd — Because the plea of discussion admits the existence and validity of plaintiff’s mortgage.

Fourth — Because defendant has executed the decree of the court sustaining his plea of discussion by depositing the sum of five hundred dollars in the hank of B. M. Johnson, in Shreveport, to, have the discussion carried into effect; and

Fifth — Because defendant has no interest in the judgment appealed irorn.

The plea of discussion was filed in limine lites by way of exception, and it neither admitted nor denied the existence of the mortgage. The first three grounds in the motion to dismiss the appeal are not causes for dismissing an appeal; nor is the depositing of the five hundred dollars required by the court such an execution of the judgment as would deprive defendant from appealing from the judgment which condemns the sale of his property conditionally. Hé had a right to require the judge a quo to act upon his exception, and to stay the proceedings against his property until after the property pointed out by defendant had been discussed. C. P. 715; C. C. 3403 ; 9 R. 71; 10 R. 73; 12 An. 363; 23 An. 773.

The motion is overrules].

On the merits we deem it necessary to notice only the first of the grounds of defense, which is that the judgment against the garnishee, Mrs. Paulina Pickett, is an absolute nullity, because it was obtained against her in the parish of Orleans while her domicile was in the parish of Bossier. But before examining that question we will notice tlie objections urged by the plaintiff to that defense being permitted to be made in the present suit, and especially by the defendant. They are, that the district court of Bossier parish was without jurisdiction to annul a judgment of the Third District Court of the parish of Orleans; that said judgment is final and can not be attacked or inquired into in this suit, and particularly by defendant; that an action to annul the judgment is prescribed ; that the garnishee submitted to the jurisdiction of the Third District Court of the parish of Orleans, and has acquiesced in the judgment by not appealing. A sufficient answer to all these objections is that the defense set up is that there never existed a judgment against her — that the court which r endered it was without jurisdiction, and therefore could not render any judgment in the case. It is a well settled rule of jurisprudence, founded upon justice and common sense, that the absolute nullity of a judgment may be invoked before the tribunal where the attempt is made to enforce it, and by any person whose interests may be affected by the judgment. 1 N. S., p. 8, Bernard v. Vignaud; 2 R., p. 510, Quine v. Mayes ; 11 An. 761, Williams v. Clark ; 23 An. 557, Simpson v. Hope.

It is proved that Mrs. Paulina Pickett resided in Bossier at the time the proceedings against her were commenced in the Third District Court of the parish of Orleans ; that she had resided there, for years before, and that she resided there when the judgment was rendered against her.

The act of nineteenth of March, 1861, amending article 162 of the Code of Practice, prohibits a defendant from being sued out of the parish of his domicile, except in cases “ expressly provided by law.”

This is substantially announced in the following cases: State ex rel. v. Watkins, 21 An. 258 ; State ex rel. v. Head, 21 An. 550 ; Richardson v. Hunter, 23 An. 255.

It is contended that the act of 1861 amending the Code only reprobated tlie election of a domicile, or the express consent to be sued in another parish than that of his domicile, but that the act did not prohibit the defendant from submitting to the jurisdiction, and article 93 of the Code of Practice and the case of Jex v. Keary are referred to in support of the position. If article 93 of the Code be in conflict with the act of 1861, the latter being the last expression of the legislative will relative to the jurisdiction of the courts, rations personal must prevail. In Jex v. Keary, 18 An. 89, the court seems to have entertained a different opinion. The point actually decided in that case, however’, was that a defendant who by his contract and mortgage executed in 1856, had consented that suit might be brought against hirn in the parish of Orleans was bound by that consent, and that the legislature had no power by the subsequent act of 1861 to impair the right of the creditor to pursue the defendant at the elected domicile, because that would impair the obligation of a contract. We do not feel called upon to notice that case further, except to state that the facts of that case are wholly different from those in this case. See 21 An. 258 ; 21 An. 550 ; 23 An. 255.

. Since the act of nineteenth of March, 1861, amending article 162 of the Code of Practice, every one residing in this State “ must be sued before his own judge — that is to say, before the judge having jurisdiction over the place where he has his domicile or residence, and shall wot be permitted to elect any other domicile or residence for the purpose of being sued, but this rule is subject to those exceptions expressly provided for by law.” But it is contended that this case comes within one of the exceptions created by law; that article 246 of the Code of Practice expressly declares that a creditor may make a garnisher a party to the suit against the debtor; and the attempt is made to deduce the conclusion that the debtor of the original judgment debtor, although residing in a different parish, may be cited as garnishee, and thus subjected to the jurisdiction of the court which rendered the original judgment. But this is a non sequitur. The debtor may be cited in garnishment, but where? Article 642 C. P. requires the writ of fieri facias ‘‘ to be directed to the parish in which the property of the debtor is situated, and it orders him to seize the property, real and personal, rights and credits of the debtor, and to sell them to satisfy the judgment obtained against him.” “ Rights and credits ” can be seized under fieri facias generally only by the auxiliary process of garnishment, and as article 642 requires this seizure to be made by the sheriff of the parish in which the effects to be seized are, it would seem that the garnishment process should be ' issued by a court of the same parish. And such, in effect, was the opinion of this court in Featherston v. Compton, 3 An. 380 : 4 An. 585; Favrot v. Piane, 7 An. 239 ; Landry v. Dickson, 3 La. 127 ; and Rochereau v. Guidry, 24 An. 311

The present case does not come within any of the exceptions expressly provided for by law. We conclude, therefore, that the judgment rendered by the Third District Court of the parish of Orleans against Paulina Pickett in 1866 was an absolute nullity for want of jurisdiction ratione persones, and that the registry of the judgment in Bossier did not create a judicial mortgage against the property of Paulina'Pickett.

It is therefore ordered and adjudged that the judgment of the lower court be annulled ; that the judgment of t!.e Third District Court of the parish of Orleans in favor of Charles E. Alter against Paulina Pickett for the sum of thirty-two thousand nine hundred and fifteen dollars and seventy-one cents, with five per cent, per annum from the first day of March, 1866, rendered on the fifteenth of June, 1866, be declared null and void, and that the plaintiff’s demand be rejected, with costs in both courts.

Rehearing refused.


author: Taliaperro, J.

text:
    No. 369.
    C. E. R. King v. Succession of J. B. Trigg. G. W. Broach v. The Same. (Consolidated.)
    A proceeding by rule against an administratrix requiring her to show cause why she should not be dismissed irom office for gross neglect of duty, and why judgment should not be rendered against her and her sureties in solido for the amount claimed in the rule is irregular, and a judgment rendered thereon dismissing her from office will be annulled on appeal.
    from the Eighteenth Judicial District Court, parish of Bossier. Tj. W. Balcer, Paiish Judge.

      Richard W. Turner, for succession, appellant. Robert J. Looney, for appellees..
   Taliaperro, J.

In each of these cases a summary proceeding by rule was instituted against the administration of the estate of J. B. Trigg, requiring her to show cause why she should not be dismissed from office for gross neglect of her duties as administratrix, and why judgment should not be rendered against her and her surety in solido for the amount claimed by the respective plaintiffs as owing them by the succession. Each of the plaintiffs prayed also that the administratrix be ordered to file an account of her administration. It seems that in conformity with an order of the parish court rendered on these petitions, the administratrix filed a statement of debts against the estate, by which it would appear that it is largely insolvent. The claims of the plaintiffs, which had been some time before accepted by the administratrix as debts against the succession, were placed on this statement of debts. An order was rendered homologating the statement of debts, and decreeing that they be paid if the succession be solvent; if not, that they be paid in conformity with a tableau of distribution to be subsequently filed. Xo opposition was presented to the statement of debts, and no further proceedings taken in reference to it, or to the filing of a regular tableau and classification of debts. A judgment was rendered in each case dismissing the administratrix from office, decreeing judgment in solido against the succession and the administratrix in her personal capacity for the amounts claimed, and that she render a final account within ten days after notice of the judgment.

From these judgments the administratrix has appealed.

The proceedings are clearly irregular. No sufficient grounds are shown for the stringent older removing the administratrix from office, and none for the rendition of the judgments in favor of the plaintiffs. From the evidence in the record the presumption is strong that the estate will not be able to pay its debts ifi full, and that the plaintiffs, who are ordinary creditors, will have to share with other creditors of the same class in a pro rata distribution of theassets of the succession.

It is therefore ordered that the judgment of the parish court be annulled, avoided and reversed. It is further ordered that the rule taken by plaintiffs^be dismissed, reserving their right to prosecute their claims against the succession in due course oí law, the plaintiffs and appellees paying costs in both courts.


author: Howell, J.

text:
    No. 321.
    Consolidated Association of the Planters of Louisiana v. J. W. Mason et. als.
    Aix appeal that has been taken before the judgment is signed is nugatory, and another appeal taken after the judgment is signed is in no mannor affected by the one taken before the signing.
    The time allowed by law for taking a devolutive appeal only commences to run from the date of the signing of the judgment, and in case the appeal is taken by motion in open court at the same term the judgment is signed, citation of appeal is unnecessary. 23 An. 618.
    The acts of the General Assembly of Louisiana providing for the liquidation and settlement of the Consolidated Association of the Planters of Louisiana, under the management of a board of directors, who are autho ized to do every thing necessary to effect the liquidation, must bo held as authorizing them to stand in judgment.
    A mortgage given on a tract or body of land is sufficiently descriptive if it is reasonably accurate and full in itself so as to inform the public what property is covered by it without stating the township, range and section in which it lies.
    from tbe Fourteenth Judicial District Court, parish of Ouachita. Bay, J.

      Morrison & Farmer, for plaintiff and appellant. Stubbs <& Cobb and Richardson <& McFnery, for defendants and appellees.
   Howell, J.

The appellees move to dismiss on the grounds:

First — Appellants have taken and abandoned an appeal in this case, Which was returnable to this court on the third Monday of July, 1870, and they can not renew their said appeal.

Second — More than a year elapsed between the dates of the rendition ■of the judgment and the order of this appeal.

Third — This appeal was taken in open court at a time subsequent to that at which the judgment was rendered, and no citation of appeal issued.

These grounds are insufficient. When the-first appeal was asked for and granted the judgment was not signed and the appeal was nugatory, The judgment was signed in April, 1872, when it became final and ■appealable, and at the same time an appeal was taken in open court on ■motion, and no citation was necessary. 23 An. 618; 20 An. 499; 11 .An. 181; 4 An. 106;-C. P. 546, 565. Motion refused.

This is an hypothecary action to enforce the payment of certain contributions on the stock subscriptions of J. W. Mason and wife as ■■subscribers to the stock of the Consolidated Association of the .Planters of Louisiana, and holders of eight shares thereof on the ■property mortgaged to secure the subscription money therefor, and as .authorized under acts of the Legislature incorporating said association, and the various acts relative to the proposed banks, and especially the act -approved February 26, 1866, entitled “ an act providing for the final liquidation of the Consolidated Association of the Planters of 'Louisiana.”

The widow and administratrix of J. W. Mason and E. Tisdale, one ■of the third possessors, except to the petition, “that the charter of the ■bank has been declared forfeited, and that the president and directors ■of said bank, whose petition defendants are called on to answer, are ■without authority to sue, and consequently can not stand in judgment.”

■ We think a fair interpretation of the statutes above referred to recognizes the existence of the corporation for the purpose of its liquidation, in the interest of the State, under the management of ■directors, who are authorized to do every thing necessary to effect the liquidation, including the authority to stand in judgment.

Hart, another third possessor, filed an exception that the land mortgaged is not sufficiently described in the act, and the mortgage is void ■for uncertainty, and that the record of the mortgage being in the French language is not binding on third possessors.

The description is in the following words : “ Une terre de cinque .arpeuts de face, limitrophe a la ville de Monroe, sur quarante arpents ■ de profondeur, dont cinquante arpents seulement sont cultives en coton .etmais, le surplus étant en trois actions.” The act was executed in April, 1830. The article of Code (3306), relied on by exceptor, says : “To render a conventional mortgage valid, it is necessary that the act ■ establishing it shall state precisely the nature and situation of each of .the immovables on which the mortgage is granted.”

The question arises, does the above description conform to the rule there prescribed 9 Does it state first the nature of the immovable f The answer must be in the affirmative : a tract of land. Does it state, secondly, the situation of the immovable 9 It says, a tract of land of five arpents front, bounding or adjoining the town of Monroe, with forty arpents in depth, of which fifty arpents only are cultivated in cotton and corn, the balance in standing timber. We presume that in April, 1830, when Monroe was a village, no one would have been at a loss to identify the property from this description of its situation. It was a tract of land of five arpents in width or front and forty arpentsin depth, making two hundred arpents ; its front adjoined or bounded the village of Monroe in such a position necessarily as to run back forty arpents in depth ; the village of Monroe at that date was not so large a one as to create the presumption that there were many tracts of land of those dimensions and position, belonging to Mr. and Mrs. J. W. Mason, adjoining or bounding it. But the description is still more precise: at that date only fifty arpents of the tract of two hundred were in cultivation in cotton and corn. It was therefore a small plantation belonging to Mr. and Mrs. J. W. Mason, and adjoining the village of Monroe, of which fifty arpents were then cultivated in cotton- and corn and the balance was in standing timber. The situation of the property was adjoining or bounding the town of Monroe, and of such a shape, quantity and position, as to inform any reasobableman of ordinary experience examining the public records for incumbrances on Mr. and Mrs. Mason’s property, where the land was which they mortgaged to the Consolidated Association of the Planters of Louisiana-on the seventeenth April, 1830. As said in Hyde v. Bennett, 2 An. 799, the description must be reasonably accurate and full in itself so as to inform the public what property is covered. And in Ells v. Sims, same volume 251, it was said : A distinction may be fairly made between urban and rural estates, and greater minuteness and accuracy of detail might properly be required in the former than in the latter case. The-question is whether, under the circumstances, any one contracting, with the mortgagor, or in any wise trusting him, or interested as a. creditor, would have been misled or kept in the dark by the omission, to state the township, range and section in which theiland is situated^ See also 2 An. 371, 471; 12 An. 148 ; 21 An. 396.

We are not prepared to fix the line between a valid and invalid or sufficient and insufficient description, which shall serve as a guide in all future cases. Each case must depend on its own circumstances. In this case we can not say that the act is so deficient in the description-of the property in regard to its nature and situation as to render the-mortgage invalid.

The remaining question, as to the act being in the French language,, -was elaborately examined by the Supreme Court in the case of Tighlman v. Dias, 12 O. S. 692, and was decided adversely to the view of the exceptors. This ruling has been since adhered to. See 3 N. S. 551 ; 3 An. 123. Whether article 109 of the present constitution has worked a change on this subject, it is unnecessary now to decide.

We have come to the conclusion that the exceptions in this case were erroneously sustained.

It is therefore ordered that the judgment appealed from be reversed, that the exceptions filed by the defendants be overruled and that this cause be remanded to be proceeded with according, to law — defendants to pay costs of appeal.


text:
    No. 345.
    Alexander Pope v. John B. Foster—Jeannette Foster, Intervenor.
    The wife who joins her husband in the purchase of a tract of land and takes the title to a portion of the land in her own name, for which a cash payment is made and acknowledged by the vendor, and for the balance notes are given with the vendor’s privileges retained, cannot be permitted to intervene in a suit by the vendor to enforce the vendor’s lien and be relieved from the vendor’s lien so far as her portion of the proporty is affected, unless, she shows that the money paid for her portion of the land was her separate paraphernal funds, and under her separate administration at the time.
    from the Tenth Judicial District Court, parish of De Soto. Levisee, J.

      Nutt & Leonard, for plaintiff and appellant. Mam, & Wemple, for intervenor.
   Wyly, J.

On sixteenth December, 1869, the plaintiff sojd eight hundred and eighty-five acres of land to John B. Foster and his wife Jeannette Foster, by act under private signature, acknowledging as the price the receipt of $2500 cash from the said Jeannette, and two notes from said John B. Foster, one for $2500, due first January, 1871, and the other for $1000, due first January, 1872. Following the description of the land in the deed is this clause: “And I hereby convey three hundred and sixty acres of said land to said Jeannette Foster for the consideration aforesaid, and the remaining portion thereof to the said John B. Foster for the promissory notes made, executed and delivered to me this day by said John B. Foster, to have and to hold to the said Jeannette and John B. Foster (reserving to-myself the vendor’s lien), their heirs and assigns.” This suit is brought on the first note and to enforce the vendor’s privilege on the whole tract.

Jeannette Foster (the wife of the defendant) intervenes and prays-to be recognized as the owner of three hundred and sixty acres of the land free of the vendor’s lien. She also prays for partition of the land.

The court recognized the title of the intervenor and ordered a partition ; it also gave judgment against the defendant John B. Foster for the amount of the note, and recognized the vendor’s lien on all the. land except the three hundred and sixty acres, decreed to belong to Jeannette Poster.

Wo think the court erred in allowing the demand of the intervenor.

The pi'operty acquired in her name is presumed to belong to the community, and liable to community debts. To show title the intervenor must prove affirmatively that the sum paid for the land was her paraphernal funds, under her separate administration. See Shaw v. Hill, 20 An. 5.31.

This has not been done. The only proof introduced by her is the testimony of her husband, which fails to convince us that she owned the funds paid for the land, and that she had them under her separate administration. The plaintiff’s vendor’s privilege should be recognized on the whole tract.

It is therefore ordered that the judgment in favor of the iutervenor be annulled and that her demand be rejected with costs; it is further ordered that the judgment in favor of the plaintiff be amended by allowing the vendor’s privilege to be enforced on all the land described in the deed which the plaintiff executed on the sixteenth December, 1869, to the defendant and his wife, and as thus amen 'ed let it be affirmed, wi th costs.


text:
    No. 339.
    Mary B. Powell v. B. F. O’Neil, Sheriff. Executors of Denman v. Mary B. Powell and H. S. Bosley.
    Tlio action by a creditor to annul a judgment of tlie wifo against her husband, on the ground that it was obtained through fraud and collusion, is prescribed by one year. C. C. 1994.
    The same prescription applies to the attack in the sale to the wile made under the judgment for fraud or collusion.
    APPEAL from the Tenth Judicial District Court, parish of Bossier. Levisee, J.

      J. J). Watlcins, for executors, appellees, ifuti & Leonard and Looney & Ashton, for appellants.
   Howe, J.

These casos are consolidated. The first is a suit to •enjoin the sale of certain lands of which Mrs. Mary B. Powell, the plaintiff, claims to be owner by virtue of her alleged purchase at sheriff’s sale on the fifth of October, 1867, under fieri facias issued on .a judgment in her favor against her husband, dated March 29, 1867.

The amount of the judgment was eleven thousand seven hundred and ten dollars; the price paid by her at sheriff’s sale, one thousand seven hundred and fifty-eight dollars and fifty-seven cents, being the full appraised value.

The second suit is one instituted about the time of the seizure by the seizing judgment creditors to have the judgment of Mrs. Powell against her husband and all sales thereunder [to her] declared in the language of the prayer of the petition, simulated and fraudulent and informal and null and void,”

The first question is in regard to the prescription of one year pleaded to the action ot Denman’s executors to annul the wife’s judgment. The judgment of Denman was recovered September 16, 1870, and the action by his representatives to annul was not filed till October 10, 1871. On the petition there appears a waiver of citation •and acceptance of service dated April 4, 1871, and signed by the .gentlemen who are now the attorneys of record for Mrs. Powell and her husband.

'We do not think that this waiver could have any effect except from 'the time the petition was filed in court. The action to annul, considered as the revocatory action proper, is therefore prescribed under act 199-1 of' the Revised Code, as interpreted in Frere v. Mentz, 23 An. 546 ; and see Van Wickle v. Garrett, 14 An. 106.

But the counsel for the executors of Denman insist that their action is one in declaration of simulation and not prescriptible by one year. We do not so regard the case as disclosed by the record. The judgment is clearly a real one, and the case is quite like that of Landry v. Marchaer, 6 An. 87, where the plea of prescription of one year was maintained.

The same prescription applies to the attack in the sale to the wife under the judgment for fraud or collusion, it appearing to be a real •contract. Deunistoun v. Nutt, 2 An. 483.

The alleged informalities on the sale, if such they are, do not concern 1,he executors of Denman so long as they are precluded from attacking the judgment of the wife. No injury or loss of advantage in a legal sense is shown to have resulted to them from these informalities alone. 11 Rob. 533; 6 An. 581; 9 An. 602; 10 An. 497; 5 An. 570.

The absence of stamps on the sheriff’s deed was supplied by permission of the collector of internal revenue, and it is not necessary to inquire what would have been the effect on the rights of Denman if they had never been affixed. We had occasion to pass on this question in the case of succession of Durand, lately decided. 24 An. 352.

It is urged that the judgment of Mrs. Powell is void for want of reasons as required by the Constitution.

This point has generally been raised by appeal, but if it be properly made in this proceeding it is enough to remark that the absence of any exception or answer by the defendant in that suit was a sufficient reason. 3 Rob. 156. In such a case the phrase by reason of the law” and the evidence necessarily refer to the law and evidence adduced by plaintiff.

It is therefore ordered that the judgment appealed from be reversed; .that the • suit of the executors of Denman be dismissed, and that the injunction issued herein in favor of Mrs. Mary B. Powell be made perpetual, and that she recover costs in both courts.


text:
    No. 350.
    A. F. Coleman, Executor, v. Percy Baker—A. B. George, Intervenor.
    A dative testamentary executor lias tlie right to bring suits to preserve the property of the estate he represents, in any parish of the State, without reference to his own domicile.
    A suit by the owner to redeem lands that have been sold for taxes is not a petitory action to-recover the lands on the gi ound of a superior title.
    A purchaser of lands at a tax sale must be reimbursed the purchase money with interest before the owner can recover.
    from the Eighteenth Judicial District Court, parish of Bossier. T. M. Fort, Judge ad hoc, vice Watkins, J.,.recused.

      Fgan, Williamson & Wise, for intervenor and appellee. J. D. Watkins and Richard W. Turner, for defendant and appellant.
   Howe, J.

This is an action by the, dative executor of Peter G. Thompson, deceased, to redeem certain lands which had belonged to Thompson, but had been purchased at tax sale by the defendant Baker, on the twenty-soventh November, 1869.

It is not, as urged by defendant’s aitorney, a petitory action. The plaintiff admits the,regularity of the purchase at tax sale by defendant, hut claims that he has defeated the inchoate rights of defendant by having tendered to him within the year allowed by statute, the price, with the penalty, costs, etc. The defendant admits the title in Thompson at the moment of sale. The only question at issue between the plaintiff and defendant is whether the statute has been complied with in such a way as to entitle the plaintiff to a redemption. The conflict of title involved in the petitory action is not found in this.

This suit was commenced on the twenty-second November, 1870, within a year from the sale. It is plain that the necessary offers were made both by plaintiff and intervenor to refund to Baker the amount, paid by him, with the interest, penalties, etc., required by law, and that he refused to accept and to restore the property. A letter from him to the intervenor expressing at great length the reasons of this refusal, is found in the record. He can not, as a matter of course, complain of not being put in default. It has, moreover, been settled that the formal tender, article 407 C. P., is not required in this action. Brooks v. Hardwick, 5 An. 675.

The defendant filed many exceptions which, as urged here, may he-fairly reduced to three: First, that the plaintiff being public administrator of the parish of Bienville, can not administer property in the parish of Bossier, and therefore (as we infer) can not bring this suit; second, that his appointment by the parish court of Bienville was irregular; and, third, that the will of Peter G. Thompson, filed and made executory in Bienville parish, was void as containing substitutions and fidei-commissa.

The court a qua properly overruled these exceptions. The plaintiff was appointed dative executor of the succession of Peter G-. Thompson, deceased, in the parish of Bienville, where the .deceased, a resident of Mississippi, left a considerable property. The defendant has not claimed the appointment and does not claim it now. As dative executor the plaintiff has a right to bring suits to preserve property in any parish. The other question presented by the exceptions is one in which the defendant has no interest. How can it matter to him that there is one clause in the will of Peter G. Thompson, which we shall hereafter refer to, containing a substitution or a fidei-eommissam ? It may interest him as a student, but it certainly does not concern him as a litigant..

The exceptions having been overruled, the defendant filed a general denial, modified by the admission that he bought the land at tax sale, as alleged by plaintiff.

A. B. George intervened, alleging ownership of the land by purchase in'March, 1870, in Mississippi, under the will of Thompson.

There was judgment in favor of intervenor, decreeing him to be the owner of the land and putting him in possession; and the plaintiff and defendant appealed. We have already stated enough to show that the defendant has no reason to complain of the judgment, except in one respect. It does not require the intervenor to repay to him the amount of his bid, with interest, etc., as required by law. This it should have done. The sale is, ■prima facie, valid. Const., art. 118. The pleadings do not allege any such irregularities in the sale as to deprive the defendant of this right. The intervenor having been careful to offer this amount before suit, and the plaintiff having conceded the regularity of the sale, and both parties urging that this is an action to redeem, we see no good reason why this repayment should not be made. Indeed, a redemption without this payment would seem to be a contradiction in terms.

The only remaining point is raised by the plaintiff as against the inteivenor; and that is, that by item fifth of the will of Peter G. Thompson, the property in question, with other lands, was left to two trustees, to be by them sold and the proceeds divided between the wife of the testator and his brother; that this provision is a prohibited fidei-commissum or substitution, and that by his purchase the intervenor obtained no title. The question is not raised by the pleadings, and we can not say whether it was discussed at all in the court below. Conceding, however, that we may consider it a; presented by the documents in the record, we do not perceive that the title of the intervenor is subject to the infirmity suggested. The testator lived and died in Mississippi; the trust was valid there; it was immediately executed there, and the wife and brother of the deceased joined in the act of sale to George. We ought not to declare all this a nullity unless it be clearly contrary to our public policy, and we can not say that it is.

The clause in the will is certainly not a substitution. ■ Beaulieu v. Ternoir, 5 An. 480. Nor is it clearly a prohibited fidei-commissum.The Code, in abolishing fidei-commissa, seeks to prevent property from being tied up for a length of time and placed hors de commerce; it does-not abolish naked trusts uncoupled with an interest to be executed immediately. 5 N. S. 302 ; 5 An. 472.

For the reasons given it is ordered that the judgment appealed from-be amended, by requiring that before the intervenor be put in possession he pay to the defendant the sum of one hundred .and eighteen' dollars and fifty cents, and that as thus amended the judgment be-affirmed; that the defendant pay costs of the lower court, and intervenor those of the appeal.