author: Bermudez, C. J.

text:
    No. 7253.
    Widow James D. Denegre vs. Widow Ada Pierce Denegre.
    An executrix, who is also the widow in community of the testator, being sued in the former capacity only, but raising, in her defense of the suit, the issue of her rights as usufructuary, will be personally concluded by the judgment and cannot afterwards attack its validity on the ground that she was not cited in her individual capacity.
    A suit brought against a succession by the widow of one of the heirs, claiming the usufruct of her deceased husband’s share of the estate, is not a real action or one of revendioation, and can be brought against the executor alone, without making the heirs parties to it.
    The court in which a succession is opened, has sole jurisdiction ratione materiee to construe the will of the testator and to ascertain and pass upon the claims of parties asserting rights under or by virtue of it.
    When the question of jurisdiction has been decided by the lower Court on an Exception, and this Court, in adjudicating upon the merits of the case, says that it does not notice the ’Exception because it was virtually waived by tbe Answer, the ruling of the lower Court constitutes res judicata between the parties on the same question of jurisdiction.
    APPEAL from the Sixth District Court for the parish of Orleans. MgMor J.

      Sam’l P. Blanc for Plaintiff and Appellant:
    Eixst — Consent cannot confer jurisdiction. An exception to the jurisdiction of a court, ratione materiee, cannot be waived. Courts are bound ex officio to’notice the want ofjurisdiotion ratione materiee, and that, though no exception be made. O. 3?. 606, § 6, 608; 1 hT. S. 200, 703; 3 E. S. 136; 14 L. 177; 6 E. 365; 11 E. 77; 5 IT. S. 10,11; 12 An. 829; 21 An. 235; 23 An. 210; 25 An. 510; Hermain’s Law of Estoppel, p. 356, sec. 146, p. 166.
    Second — Where an exception to the jurisdiction ratione materiee was made at the inception of a suit, and overruled by the lower court, on appeal the Supreme Court cannot refuse to consider it for any cause; certainly not, because it bas not been Dressed in argument, nor reserved in an answer filed after it was overruled by the lower court.
    Third — Even where no exception was made, the judgment of a court without jurisdiction. ratione materiee, is void. A fortiori, if the court refuse to pass on the exception when made, should its judgment be held null ? 21 An. 235; 23 An. 210; 25 An. 510; Hermain’e Law of Estoppel, p. 356, sec. 146, p. 166.

      Pourth — Therefore, where an exception to the jurisdiction ratione materice has been formally pleaded at the inception of a suit, and overruled, and, on appeal, the Supreme Court expressly states that it does not pass upon it, and remands the case for further proceedings, and the exception is again formally pleaded, it mustbeheld that the exception is still open, and the question it presents undecided.
    ■Fifth — A proceeding by an heir to divest the widow in community of the usufruct she claims by operation of flaw (the heir claiming that the property subject to the usufruct has been disposed of. by will) is a real action, and not within the jurisdiction of the Probate Court. C. P. 4, 5, 12, 983; C. C. 463,1230, 1245; 1 Mourlon, p. 663 ; 4 H. N. S. 78; 5 N. S. 9 ; 2 La. 23, 26 ; 11 La. 3S9, 394; 14 La. 178; 7 An. 477; 27 An. 625 ; 1 R. 116 ; 5 R. 314, 320 ; 10 M. 1; 7 N. S. 470 ; 12 L. 214 ; 15 L. 455, 517; 16 L. 89 ; 10 L. 90 ; 3 L. 514; 3 An. 582; 8 R. 488; 4 R. 165, 278, 290 ; 3 R. 100 ; 17 L. 238 ; 14 L. 177; 7 L. 378; 1 An. 278.
    Sixth — To such a proceeding the widow in community is a necessary party. Ibid.

    Seventh — Sho cannot he proceeded against, however, in the Probate Court. 11 La. 21.
    Such proceeding, when brought solely against the executrix aud executor of the estate subject to the usufruct, does not bring the widow before the court, in her individual or private capacity, in which she must claim and hold the usufruct, even though, she herself be the executrix. A judgment against her as executrix is not binding on her as usufructuary, and cannot be enforced against property in her possession as widow in community. A judgment against her in one capacity is not binding on her in any other.
    Niglith — Where the purpose of a suit against executors is to obtain an account, to fix the extent of an heir’s interest in an estate, aud to obtaiu a delivery thereof, or a judgment, under which the delivery of a fixed sum can be enforced, it is a demand for partition, and all the heirs, and the widow in community, must be joined in the suit. O. P. 123; O. C. 1230-45 ; 7 An. 477; 10 An. 674; 8 N. S. 347 ; 2 L. 148; 8 L. 231; 16 L. 157 ; 6 L. 354.
    Ninth — In such a case the Probate Court is without jurisdiction, though, some of the heirs are minors. 29 An. 440; 30 An. 93, 140, 182, 1032, 1339.

      Thomas J. Semmes for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action to annul a judgment rendered in 1876 by the Supreme Court of the State, by which the judgment of the Second District Court for the parish of Orleans, in favor of the defendants, was reversed and a judgment rendered in favor of the plaintiff in the ease.

The defendant in that suit is the plaintiff in the present one.

■ The grounds of nullity are: want of citation, want of proper parties, want of jurisdiction ratione materice, and incorrectness of the judgment.

The suit in which the judgment attacked was rendered, was instituted by Mrs. Ada Pierce, widow of John Denegre, against the succession of James D. Denegre, his father. She claimed to be entitled under his will to the usufruct of his share in that estate, which she valued at some $30,000. She prayed that Mrs. James D. Denegre, as executrix, and her co-exec.utors be cited and, after due proceedings, that she be recognized as such usufructuary and paid by the succession an annual interest on the value of her husband’s share as an heir.

The defendant pleaded want of jurisdiction ratione materice and want of proper parties; but those defenses were overruled in the first instance.

Mrs. James D. Denegre, executrix, and her co-executor then answered, admitting undeniable facts and setting up that Mrs. James D. Denegre, as surviving wife in community was, in the absence of any contrary testamentary disposition of her husband, entitled, during her widowhood, to the usufruct of his half in the common assets. They pleaded other eventual defenses, which it is unnecessary to notice, concluding that, therefore, the plaintiff in the suit could take nothing by her action and that her demand should be rejected with costs.

The case was tried. The court rejected the petition of Mrs. John Denegre. On appeal, the Supreme Court reversed the judgment of the lower court and declared Mrs. John Denegre entitled as usufructuary, under the will, to the share of her husband in the succession of his father; the amount of his interest therein to be ascertained in a subsequent proceeding. That judgment became definitive. The opinion was not unanimous, and is not reported.

It is the judgment so rendered by the Supreme Court in favor of Mrs. John Denegre and against the succession of James D. Denegre, which the plaintiff in this action, Mrs. James D. Denegre, seeks to annul.

The grounds set forth in the exception of the executor, in the suit, are reiterated and urged in this action for the nullity of the judgment, but want of citation and incorrectness of the judgment attacked are superadded as further radical causes of complaint.

We will how proceed to consider seriatim, in a logical order, those grounds of nullity.

1st. It was unnecessary to cite Mrs. James D. Denegre as claiming the usufruct of her husband’s share.

The petition ignored all such claims and assumed that none existed. It is so reticent on the subject, that it was deemed prudent to assert broadly the claim of Mrs. James D. Denegre to that usufruct in the answer, as well to resist plaintiff’s demand as to obtain a judicial recognition of it. No other purpose could have been contemplated.

Mrs. James D. Denegre was one of the respondents. It is insisted that she appeared and joined issue only in her capacity of executrix.

We cannot view her appearance in that light.

The rights which Mrs. James D. Denegre asserted, speaking as executrix, were not official, but were individual personal rights. She spoke as executrix to protect herself in her private capacity. She had a right to do so and she has done it.

After voluntarily placing herself thus in court, raising a formal issue on the subject, soliciting and obtaining the action of the Court, how can she consistently complain that she was not brought into Court individually by citation to assert and vindicate her pretensions. Her action in the matter may well be viewed in the light of an intervention.

Want of citation can be set up only by those who did not make themselves parties to a suit, and who should have been connected with it to be concluded by the judgment rendered in it. The rule can receive no application in the cases of those who have voluntarily entered appearance, joined issue and submitted their claims to judicial appreciation. Had Mrs. James D. Denegre not been one of those entrusted with the execution of the will, and had not the executor set up, with her knowledge and distinct authorization, her claim to the usufruct, -had she not made herself a party to the proceeding, a different case might have been presented; but after she has permitted her claim to be tested in the form in which it was, she cannot be allowed to plead want of citation, ignorance of a litigation in which her private rights were at stake, and to say that she is not bound by an adjudication which she has herself provoked. 3 An. 167,174; 8 An. 128; 1 An. 92; Succession of Ames, 33 An. p. —. .

2nd. It was not necessary to cite other parties. The action was in no way one in revendication or a real one. It contemplated a recognition of a right, and as a consequence the payment of a sum of money, in satisfaction of that right, during its existence. It was an action which could be brought against the executors alone. C.P. 123, 924, ji 13; 984, 986, 987, 992.

The heirs of James D. Denegre had no interest antagonistical to that asserted by the plaintiff in the right of her husband, one of their co-heirs. Nothing was sought to be taken away from them, or either of them; on the contrary, their interest was common, identical. Any judgment in favor of plaintiff would necessarily have inured to their advantage, without binding them. The issues presented could be well determined in their absence, as they were not indispensable parties. On the assumption that they should have been made parties, the omission to make them such cannot surely (as, a ground for the nullity of the judgment rendered) avail those who were parties, forced or voluntary, to the action.

3rd. The Court had jurisdiction ratione materias. No other court could have entertained jurisdiction to construe the will of James D. Denegre, to ascertain and pass upon the claims of parties asserting rights, under or by virtue of it; to allow or reject money demands against the succession; to regulate the distribution of its assets among creditors, legatees, heirs, as long as his legal representatives, entitled to the residue of his estate, had not placed themselves in possession of its assets. All paities interested, as legatees, as heirs, or otherwise, had a right to sue and to be sued, inter sese, in the court seized of the settlement of the succession.

An executor who is a creditor, a legatee, an heir, who has interests adverse to those whom he represents, or claims upon the property in his hands, is authorized to assert those rights in, and to have them adjudicated upon by the probate court. It would indeed be an idle ■ceremony, practically an impossibility, to have him to distinguish himself as executor, from himself individually, and require him to sue himself or be sued in both capacities. Rather than to exact such a vain thing the law authorizes him to assert, at will, his personal rights in his representative or official capacity. 3 An. 167, 174; 1 An. 92; 8 An. 128; Succession of J. H. Ames, No. 8022, 33 An. p. _.

Judgments rendered in proceedings in which executors have*asserted Individual rights, must be considered as rendered by courts necessarily competent ratione materice and persones and as conclusive, when definitive, in both capacities. 5 L. 237; 17 L. 15; 10 R. 194; 3 An. 172; 22 An. 109,140; 23 An. 292, 638; 26 An. 90; 27 An. 593; 30 An. 752; 32 An. 1080; R. S. 2011; L. D. 160.

4th. Whether the judgment assailed was or not correctly rendered, whether it wrongs or not the party cast, is a question which can never form a legal ground of nullity, and one which we have no authority to pass upon in a suit to annul. In a proper case it might be entitled to some weight in the scales of equitable justice.

The defendant in this action has pleaded the judgment attacked as res judicata. As a rule this cannot be done, as the object of the action to annul is precisely to have it declared that the judgment assailed is no judgment at all. 29 An. 5099. It is only on the assumption that it is not a valid and binding judgment that it can be set up as res judicata. Until then the defense is a petitio principié. But rules have their exceptions which confirm them.

It is true that the decision on a question of jurisdiction, made by a tribunal, is not always obligatory in a different one whose aid is invoked to enforce it; but when such decision is made in an inferior court and is notavoided and reversed by the appellate court, and this last court, in the exercise of its appellate and plenary and revisory powers, proceeds to adjudicate on the merits of the controversy, the question of jurisdiction must be considered as definitively set at rest under the ruling of the lower court, and cannot be again agitated between the same parties, on the same subject matter, in the same controversy, and before the same tribunal, particularly when, as in this case, the judgment of the appellate ■court was acquiesced in by a voluntary compliance with its directions.

In the course of the opinion delivered by the Supreme Court in 1876, the Justice who delivered it said :

“ There was an exception to the petition, which was overruled, but the answer virtually waived it and it has not been pressed here. We will not, therefore, notice it.”

It was impossible to render the judgment which the court did, without necessarily maintaining the ruling of the Second District Court on the exception to the jurisdiction and to the want of proper parties. The judgment of the lower court was expressly noticed by the appellate court. It was not reversed. It remained unrevised, undisturbed and thus virtually affirmed. It thus constitutes res judicata on the second and third grounds of nullity herein urged, as we hold that the parties to the present action were parties morally and legally identical in the suit in which the judgment assailed was rendered.

The judgment appealed from is affirmed with costs.

Rehearing refused.


source: Caselaw Access Project

license: Public Domain

text:
    No. 7834.
    Mrs. Ada Pierce Denegre vs. Widow James D. Denegre.
    The liability of the agent of an executrix for tbe illegal management of the affairs of the-estate, is ter bis principal and not to tbe lieirs. The claim of the latter for any loss which such agent may have caused the estate, is against the executrix.
    The Executors in this case cannot be charged with the loss of funds in the hands of certain, bankers in Erance, because they were authorized by the will of the testator to leave those funds there.
    The Executors have no right to account on the gold basis for tho pounds sterling, francs and. other assets of the estate, converted into tbe United States currency. What the pounds sterling, francs, etc., realized in currency, should be accounted for in currency.
    In default of a charge of malfeasance, tbe Executors canuot be beld responsible forthe difference between wbat tbe funds in Europe did realize and wbat they would have realized in 1865, had they then been converted by tbe Executors, because tbe matter was left to the discretion of the latter by tbe testator.
    Heirs living in tbe family residence and rendering valuable services to tbe estate, cannot be charged with board and lodging, in tho absence of substantial evidence of an agreement to that effect.
    APPEAL from tlie Second District Court for the parish of Orleans. Tissot, J.

      Thomas J. Semmes for Plaintiff and Appellant.

      Sam’l P. Blanc for Defendants and Appellees:
    Eirst — Where, on the demand of an heir to obtain an account, and have fixed and delivered his interest in an estate, the executor files an account, which does not include an obligation due from tbe heir to tbe estate, tbe co-beirs are interested to have tbe account amended, and to defeat claims made by one whose obligations far exceed his rights.
    Second — Co-heirs having an interest may intervene in a proceeding between one of tho heirs and the executors, to protect their rights, save tbe estate from illegal demands, and to have accounts correctly made. 4 Rob. 296; 28 An. 607; 25 An. 534; 17 An. 133.
    Third — An intervention, even in ordinary proceedings, is allowable at any time before judgment, provided tbe intervenor shall be always ready to proceed, and shall not retard the case; but tbe required time for citation under the intervention must always be allowed, and is not to be considered as retarding the trial. C. 3?. 364; 16 L. 283; 3 An. 331; 20 An. 258; 25 An. 565.

      Eourth — Though the intervention be entered on tbe day of trial, it must be admitted, and time for citation allowed, it necessary. 25 An. 565.
    Eifbh — An appearance for the purpose of opposing an executor’s account, in a probate court, can be made at any time before the homologation. 9 L. 48, 59 • 23 An. 527; 4 Eob. 296; 10 L. 358.
    Sixth — An account rendered in one succession without citation, other than that of publication, to the heirs thereof, is not binding on them. 6 L. 225; 3An.383; 8N.S. 347; 2L.146;6L. 354; 8 L. 231; 16 L. 157; 13 An. 97, 537; 9 L. 284; 9 An. 85; 11 An 412,
    Seventh — An account to pay debts rendered in one estate is no bar to the enforcement oí an obligation due to another estate; the province of an accountis to obtain conclusive authority to pay or distribute funds, and not to bar or defeat claims not involved in the account, nor in any manner relating to the purposes for which the aocount was rendered. The whole effect of an accountis to conclude persons, as to passive debts therein expressed, and to protect the administration in their payments. 12 An. 337; H. D. p. 759, Nos. 2,13 et seq.

    Eighth — One who is acting as the agent of an estate must account in full for bonds and securities deposited with him for safe-keeping.
    Ninth — The possession by the executor of John Denegre’s estate, of bonds belonging to the estate of James D. Denegre, and which he has been charged, as executor, to return to the owner, is the possession of the estate he represents, and if he fails to account for them, that estate will he responsible.
    Tenth — The receipt of the bonds by John Denegre, for safe-keeping for the estate of James D. Denégre, and his written treatment of the bonds as the property of that succession, will estop him, and those claiming under him, from defeating a recovery of tbe bonds, by denying the title to be in that estate. 21 An. 594; Bigelow on Estoppel, pp. 420, 425; 8 Cal. 303; 9 Cal. 573; 6 Whart. 418; 9 Bing. 382.
    Eleventh — One who denies the usufruct of another for one purpose, cannot, in the same case, and for another purpose, admit it, nor gain an advantage in one direction by a denial of that, which, in the next breath is admitted, in order to secure a further advantage._ If. the usufruct is admitted as existing at all, it is admitted as existing in full.
    Twelfth — The acceptance of part of an obligation to make good, bonds which have not been accounted for, does not ratify the misuse of tbe bonds nor remit tbe balance due.
    Thirteenth — A depositary, mandatary or agent, cannot plead prescription to relieve himself from accounting for bonds left with him. 31 La. 565; 15 An. 469; 1 Eob. 43; 2 An. 997; 12 E. 535; 14 An. 230; 7 An. 535; 15 An. 143; 22 An. 151; 27 An. 133; 16 An. 397; 12 An. 630; Troplong, Prescription, vol. 2, Art. 490; 26 An. 476; 19 An. 491.
    Eourteenth — An account rendered to fix tbe moneyed interest of an heir in the cash of an estate, cannot include property as real estate, bonds and furniture, held in a state of in division.
    Eifteenth — An heir who desires to realize his interest in the real and movable property of an estate, must proceed by partition, and not seek through an account to have the value of that interest paid him.
    Sixteenth — There is no law which imposes a duty on executors to withdraw iunds belonging to major heirs from foreign investments or deposits made by the testator, more especially when the testator expressly leaves it to the discretion of his executors to retain said investments or deposit, as placed by him.
    Seventeenth — A loss of part of such a deposit by the failure of the bank where it was placed, and without fault of the executors, is not chargeable to them, and must he borne by the estate.
    Eighteenth — An heir who has been supported and his expenses paid by an estate, owned in common with other heirs, is properly chargeable with the costs or amount of his maintenance and such expenditures.
   The opinion of the Court was delivered by

Bermudez, C. J.

In 1874, the plaintiff, Ada Pierce, widow of John Denegre, claiming to be entitled to the usufruct of her husband’s share in the succession of James D. Denegre, his father, who died, in 1865, brought this suit against the executors of the latter, to be paid an annual interest on the value of that share. She was resisted on the main ground that, as James D. Denegre had not by any testamentary disposition disposed otherwise of his share in the community property, his surviving spouse, one of the defendants in the case, was entitled to the usufruct of the same during her widowhood, and as the plaintiff’s husband, if he were alive, could take nothing, she, claiming in his rights, could not recover.

In 1876, the Supreme Court, reversing the judgment appealed from, adjudged the plaintiff entitled, as usufructuary, under the will, to the share of her late husband in the succession of his father; the amount of such interest to be ascertained in a subsequent proceeding. The opinion is not reported. See O. B. 45, fol. 529.

In furtherance of this judgment an account was presented, in 1877, by the estate of James D. Denegre, and its homologation was asked contradictorily with Mrs. John Denegre.

It purports to show the condition of the succession of James D. Denegre one year after his death. It realizes, on a gold basis, a balance of $521,432 75 in favor of the widow and heirs, allowing half to the former and half, less a special legacy of $10,000, to the latter, thirteen in number, giving to each $19,670 49.

To that account are appended two minor exhibits, which propose to indicate: 1st, the interest of Joseph Denegre, one of the sons of J. D. Denégre, who died intestate, prior to John Denegre, in his father’s succession; 2d, the interest of John Denegre, plaintiff’s husband, who subsequently died, inheriting from Joseph, leaving his mother as a forced heir, for one-third, his brothers and sisters and his widow as legatees, the' former for the naked ownership, the latter for the usufruct of the remaining two-thirds, the disposable portion.

The account of Joseph Denegre’s interest shows him, on the gold basis, to be entitled to $19,670 49 in capital, and to $9,835 24 in interest, less $19,721 39 in capital and $9,511 74 in interest, charged against him, leaving a balance of $272 60, to which is added his interest in a firm to which he belonged, $6327 54, forming an aggregate of $6600 14, which is offered to be divided, one-fourth to his mother and three-fourths, share alike, to his brothers and sisters, among whom John Denegre or his representatives.

The account of John Denegre’s interest shows him, on the gold basis, to be entitled likewise to $19,670 49 in capital, $9835 24 in interest, less $18,709 84 in capital, $8461 82 in interest, charged against him, leaving abalance of $2334, to which is added an amount underpaid in settling the estate of Joseph Denegre, viz: $14 27.

Widow John Denegre opposed the homologation of the accounts, on nine grounds.

At the moment of trial, Henry Denegre and George Denegre, two • other sons of James D. Denegre, full brothers of John Denegre and, as such, co-heirs in the succession of J. D. Denegre, claiming to have an interest to resist the opponent, were permitted to intervene and to ask that the account of John Denegre be charged with fifty-nine State and city bonds, amounting to $29,000 in capital, and to $130 20 in coupons. They averred that the bonds belonged to the succession of James D. Denegre, that John Denegre who had the management of the estate for account of his mother, who was executrix, had used the same for his personal purposes; but, that a sum of $6601 33 had been received from his executor by the estate of James D. Denegre.

To the opposition of Mrs. John Denegre, exceptions were filed by Mrs. James D. Denegre. They are the same which were urged at the incipiency of this litigation, which were overruled, and which so remained, under the judgment of the Supreme Court of 1876, they are the same that were pressed, as grounds in a suit in nullity'instituted by Mrs. James D. Denegre against Mrs. John Denegre, and which were likewise overruled by both the lower and appellate courts, so that they must be considered as standing no longer in the way of the determination, as far as practicable, of the present controversy.

Objections were filed and exceptions taken by Mrs. John Denegre to the intervention of Henry and George Denegre, which it is unnecessary to specify, considering the disposition which shall be made of the proceeding.

We will, therefore, now approach the merits; first of the intervention and next of the opposition.

From the terms of the judgment of the Supreme Court, in 1876, in furtherance of which the account of the estate of James D. Denegre, now before us, was presented, we take it that the will of the deceased, James D. Denegre, was finally construed as having taken away from his widow the usufruct which she would have had of his share in the common assets had he died intestate, as giving to each of his children the right to demand from his executors his proportion of that share, and as recognizing Mrs. John Denegre as entitled to ask from the succession of James D. Denegre the enjoyment or usufruct of the disposable portion of the share of her husband.

Standing upon that basis, we must ignore all the claims of Mrs. James D. Denegre as usufructuary and deal with her as with the executrix of the will of her deceased husband, accounting to one of the representatives of one of his forced heirs, who, by his will, has dismembered his share of inheritance by giving the usufruct of the disposable portion (|) to his widow and the naked ownership of it to his collaterals, — his mother claiming and taking, free from all encumbrance, her légitime ($) as a forced heir.

The récord shows that, at the date of the inventory, there were no bonds in the name of James D. Denegre, except ten State bonds; that subsequently, forty-nine bonds were acquired for account of the estate of James D. Denegre, which were afterwards disposed of by John Denegre, for his personal advantage and not accounted for by him, except so far as the amount ($6601) mentioned may have effected a settlement.

The acts and doings of John Denegre in the matter can in no manner concern the intervenors. He was the agent employed by Mrs. James D. Denegre, as executrix. What liability he may have incurred can be enforced, not by his co-heirs,, but by his principal, who is primarily responsible to the heirs of James D. Denegre for the unauthorized acts of her mandatary, for whose acts she is to them liable.

The amounts used by John Denegre in the purchase of the bonds cannot be considered as an investment for account of the succession of James D. Denegre, however liberally his will may be construed on the subject of delegation of discretionary powers to his executors touching an investment oi funds.

It is immaterial to the heirs of James D. Denegre whether the acts of John Denegre were or not ratified by Mrs. James Denegre by receiving the proceeds of the sale of the bonds. That ratification may produce some effect, but whatever it may be, it does not affect but can only benefit those heirs. Mrs. James Denegre does not raise her voice in this matter to fix any liability on her son’s estate for this misappropriation. It does not appear that she ever pretended to urge any claim against him or his succession; she settled his affairs as executrix and participated in the distribution of his assets. She has assumed the attitude of an heir.

We are at a loss to discover what standing the intervenors have in court to assert and champión in the name of the estate of James D. Denegre, or in that of their mother, rights which the executors would have no authority to enforce against the estate of John Denegre, and which could be averred and insisted upon by Mrs. James Denegre alone, whom the intervenors have no authority to represent, and do not represent, and who, did she act, could not herself fasten upon the succession of James D. Denegre the loss sustained in the transaction inflicted upon. her by her agent.

The intervention must, therefore, be dismissed, and Mrs. James D. Denegre remain accountable to the succession of her husband for the ten State bonds described in the inventory, and touching which no mention is made in the account.

2d. We will now proceed to consider the nine grounds of the opposition.

The first item of opposition charges' that the estate' of James D. Denegre is estimated in the account, on the gold basis, at $521,432, whereas it consists besides of assets which are stated, and which aggregate $113,846 78, according to the inventory, which foots up $800,000.

We do not understand that the account proposed the sum which figures on it as representing the whole of all the assets standing in the name of James D. Denegre at his death, or at the date of the filing of the statements.

The account should have set forth explicitly all the succession assets of any description, from whatever source derived, and presented the form and appearance of a “ tableau of distribution.” It refers to receipts for, $51,394, but we do not propose to pass upon that item in view of the ultimate disposition which we intend to make of the case.

The second ground of opposition is to an item of 132,289 39 francs, with which the estate credits itself as a loss sustained by the failure of Dupasseur & Co. in Europe, and which, it is claimed, should be debited to the executors.

We do not consider that they are chargeable with the loss. When Mr. Denegre died the amount in the hands of those bankers to his credit was some 826,000 francs. By his will, he expressly directed his executors to allow the money to remain where he had placed it until the close of the war; and even subsequently, to continue investing his funds 'in European securities, if they deemed it advisable, for the interest of his family and for the greater security of the- capital itself.

The record shows that the executors had reduced the above amount to 132,239 francs.

The thitd ground of opposition is to the proposed gold settlement, because the payments in currency are reduced to gold, at the rate of $113 in currency for $100 in gold, whereas, in 1866, the sale of the realized 335,000 francs and 6464 pounds sterling actually produced $130,93,2 77 in currency, a sum more than sufficient to pay all the debts of the succession.

It appears to us that the proposed mode of settlement on the gold basis .is properly objected to by the opponent. We do not perceive why francs and pounds sterling, converted into U. S. currency, and why other assets received in like currency, should be accounted for on the gold basis. What the francs and pounds sterling and other assets realized in currency should be accounted for in currency.

The fourth ground of opposition has for its object to charge the executors with the difference between what the funds in Europe would have realized and what they have produced, had they been withdrawn in 1865, namely : a difference or premium of forty-five cents in currency on the gold dollar.

Under the terms of the will no responsibility can be saddled upon the executors, who were left a discretion on the subject. There is no charge of malfeasance against them. They must, therefore, be assumed to have exercised that discretion to the best of their judgment and ability and according to their conscience. The less can they be sought to be made liable, as their acts and doings were to the knowledge of John Denegre, who never p'rotested against the same, who, therefore, may be considered as party or privy thereto, and so, as having sanctioned the course pursued. What he could not do, those claiming through him cannot be permitted to set up and urge.

The fifth, sixth and seventh grounds, which disputed the allowed paraphernal claims of Mrs. James Denegre for $19,000, and advances made to Joseph and John Denegre of 1033 pounds each, have been abandoned.

The eighth ground of opposition is to the items for board and lodging in the proposed settlements with the estates of Joseph and John Denegre.

The amount charged to John’s account in capital and interest foots $6114; that to Joseph’s account foots $6710.

We find that both John and Joseph occupied the family residence, using the family furniture, which was their joint property, and that they rendered valuable services to the estate and to their mother.

In the absence of substantial evidence, establishing a clear understanding by which they were to pay for their board and lodging as charged, and to render gratuitously the services which they have rendered, we do not feel authorized to allow their account to be debited with those items.

The ninth ground which tends to have the account of Joseph Denegre credited with $7486 66, due him as one of the executors of his father and which was never received by him, is acquiesced in as correct, and assurance is given that the credit will be allowed.

The judgment of the lower court sustained the intervention, so as to decree the estate of John Denegre to be indebted to the estate of James D. Denegre in the sum of $24,164 19 with interest and costs, and dismissed it in other respects; it maintained the opposition as to the first ground set forth, but rejected it in other regards, and amending the account accordingly, it decreed its homologation and ordered a distribution of funds in the manner indicated.

We agree with the District Judge in holding the estate of James D. Denegre accountable for all the assets not included in the account before us, but we do not concur in the other portions of his Judgment.

It is, therefore, ordered,adjudged and decreed that the Judgment of the lower court be affirmed so far as it holds the estate of James D. Denegre accountable for assets not mentioned in the account under consideration, and that, in all other respects, it be reversed, and proceeding to render such Judgment as should have been rendered by the lower court,

It is ordered, adjudged and decreed that the account presented by the estate of Jas. D. Denegre be amended by striking therefrom the proposed settlement on a gold basis and by requiring the executors to substitute thereto an account of all the funds received by them, in their capacity, in United States currency, as also of all the assets and property standing in the name of James D. Denegre at his death and which came to their possession as executors, together with a full and complete statement of their administration of the property of the succession from the beginning, including all amounts received and which should have been received and accounted for, and all amounts disbursed with authority on account of the estate, or due thereby, without prejudice to the rights, if any, of the opponent or of any other party concerned, to claim an account of assets and yieldings thereof, or interest, to which they may be entitled and which may not have been personally provided for by this decree;

And it is further ordered,-adjudged and decreed that the items for board and lodging charged in the accounts to Joseph and John Denegre be stricken therefrom; and that the account of Joseph Denegre be credited with the sum of seven thousand four hundred and eighty-six dollars and sixty-six cents ($7,486 66) with legal interest thereon from Judicial demand.

It is further ordered, adjudged and decreed that in all other respects the opposition of Mrs. Ada Denegre, widow of John Denegre, and the intervention of Henry and George Denegre be dismissed.

Considering that the account rendered and the exhibits thereof concerning the estates of Joseph Denegre and of John Denegre should be recast and remodeled, so as to conform with the views herein expressed, and that another proper account with other exhibits concerning said estates should be substituted thereto accordingly—

It. is ordered, adjudged and decreed that this cause be remanded and referred to the Civil District Court for the parish of Orleans, which has superseded the Second District Court for said parish, by which it was tried, there to be further proceeded in, with instructions to that court to have the present Judgment executed and a new account rendered with exhibits, in furtherance of the views herein expressed and of the decrees herein made and, in all other respects, in further accordance with law,

It is ordered and decreed that the costs of the intervention be paid by the plaintiff therein, and those on opposition by the succession of James D. Denegre, in both courts.

Rehearing refused.


author: Levy, J.

text:
    No. 7099.
    Chism & Boyd vs. Thomas Ong et al. E. E. Chubbuck, Intervenor.
    -An Intervenor, not having prayed for citation against Plaintiff, is no party to the latter’s suit and cannot offer evidence on the trial of the case.
    APPEAL from the Second Judicial District Court, parish of St. Bernard. Pardee, J.

      Singleton & Browne for Plaintiffs and Appellees.
    21 J. Bartlette for Intervenor and Appellant.
   The opinion of the Court was delivered by

Levy, J.

The plaintiffs, Chism & Boyd, transferrees of a lease from Mrs. Elodie Verret, wife of L. Leon Bernard, brought suit against the defendant Thomas Ong for a balance of $4500 due on the lease of a plantation in the parish of St. Bernard, and provisionally seized the personal property and mules used on said plantation in its cultivation, and prayed for judgment with lessor’s lien and privilege. This suit was brought on 17th of February, 1877, and on 6th of March following, default was entered against defendant.

On 5th of March in same year, E. E. Oliubbuck intervened in said suit and excepted to the jurisdiction of the court, and prayed that, if the ■court maintained jurisdiction, then intervenor should have his judgment against defendant paid in preference to plaintiffs’ claim for rent. There was no prayer in this petition of intervention that any one should be cited, no citation was issued, and no one was cited.

When the plaintiffs, by counsel, was about to have the judgment by default confirmed and final judgment rendered, the intervenor offered to introduce evidence to prove up his intervention, plaintiffs’ counsel objected to the reception of intervenor’s evidence on the ground that he was not a party to the suit and had no interest therein. There had been no prayer even for citation, and no citation had been served on plaintiffs; the intervention was not at issue and the court below correctly refused to hear intervenor. It is true the intervenor should be always ready and cannot retard the principal suit, yet it would surely not be just nor legal to allow him to urge his demand and make out his case, without citation to the other parties and without his case having been put at issue. He could claim and would be allowed time to cite the party against whom it is directed, delays to answer, etc. 16 La. 265; 3 An. 331; 32 An. 765. There is no error in the judgment appealed from, and it is, therefore, affirmed with costs.


author: Todd, J.

text:
    No. 6933.
    A. L. Tissot vs. A. Dubuclet et al.
    Section 3784 of the Revised Statutes, which provides for the punishment of the State Treasurer by fine, etc., for refusing to pay warrants in certain cases, upon conviction thereof, etc , means a conviction under a regular criminal proceeding. Such conviction is a condition precedent, under the Statute, to the recovery of the penalty.
    APPEAL from the Third District Court for the parish of Orleans. Monroe, J.

      E. Howard McCaleb for Plaintiff and Appellant:
    First — A criminal conviction of the State Treasurer, under Sec. 3784 Revised Statutes of 1870, is not an essential pre-requisite to a suit for the recovery of the fourfold penalty therein provided in favor of the holder of warrants, payment of which has been illegally refused. The criminal prosecution and civil suit are independent of each other. 12 Wheaton, pp. 14 and 15. The construction of a penal statute should not be so strict as to defeat tbe plain intent of the Legislature. Sedgwick on the Construction of Statutes, p. 283.
    Second — A civil suit to recover a penalty enacted in the interest of the individual injured, cannot he made to depend upon tbe action of the prosecuting attorneys of the State. The individual himself has the right to sue in his own name and for his own benefit to enforce payment of tbe penalty. Sedgwick on Statutory Construction, pp. 74, é9 ; 7 R. 252; 2 Crancli, 33G; 3 R. 55; 12 R. 48; 10 An. 122.
    Third — The fourfold penalty prescribed by Seo. 3784, R. S., being exclusively for the benefit of the individual, is not subject to the rules regulating qui tam actions. A qui tam action is a remedy given for the recover of a penalty, part of which goes to the informer, and the other part to the State. Bouvier’s Law Dictionary, verbo qui tam.
    Fourth — The general rule is, thata criminal conviction does not bar aoivilaction, § 225, Freeman on Judgments; nor is a civil action prejudiced by the acquittal of the defendant id a criminal proceeding. Idem} § 319 ; 15 An. 543.

      Albert Voorhiee for Defendant and Appellee:
    First — There must be a previous conviction of the State Treasurer for a misdemeanor in office to justify the enforcement of the fourfold penalty provided for by R. S. section 3784.
    Second — This penalty can be enforced only through an action qui tam.

   The opinion of the Court was delivered by

Todd, J.

The plaintiff, alleging himself to be the holder of certain warrants amounting to $2500, and that the defendant, A. Dubuclet, then State Treasurer, had refused to pay these warrants when presented for payment, although there was money in the treasury out of which they should have been paid, brings this suit against the said Dubuclet and the sureties on his official bond, for $10,000, fourfold the amount of said warrants.

The action is evidently brought under section 3784 of the Revised Statutes, which provides:

“If the treasurer shall wilfully and illegally refuse to pay any warrant lawfully drawn upon the treasury, having the funds in hand to pay the same, he shall be deemed guilty of a misdemeanor in office, and, upon conviction thereof, shall be fined in a sum not less than five hundred dollars, for the use of the State, and shall forfeit and pay to the holder of such warrants fourfold the amount thereof, to be recovered against him and his security on his official bond.”

Defendants filed a peremptory exception, averring:

1. That the petition discloses no cause of action;

2. That the demand can be entertained only upon the conviction of the officer; and

3. That the statute does not authorize a civil suit to enforce the penalty.

This exception was sustained and the suit dismissed, and from this judgment the present appeal was taken.

The Statute referred to is highly penal, and is to be construed strictly. It certainly declares a liability against the officer mentioned on account of the acts or omissions mentioned in the Statute and charged in the petition, but it is equally clear that that liability is contingent “ upon his conviction thereof.”

Conviction is a term generally used with reference to criminal proceedings. Thus Abbott defines it: “The act or proceeding of pronouncing a person guilty of an offence and punishable therefor.”

Abbotts’ Law Dictionary, p. 285.

And again: “ Conviction is an adjudication that the accused is guilty. It involves not only the corpus delicti and the probable guilt of the accused, but his actual guilt.” Nason vs. Staples, 48 Me. 123.

Section 980 of the Revised Statutes provides:

“ Every person being adjudged to pay a -fine, shall, in default of payment or recovery thereof be sentenced to be imprisoned for a period not exceeding one year.”

Considering the plain terms of those statutory provisions, it is clear to our minds that the conviction mentioned means a conviction under a regular criminal proceeding instituted and prosecuted according to law; and that such conviction is a condition precedent to any individual recovering the penalty declared as part of the punishment for tlie “misdemeanor ” denounced by the statute.

It is not alleged in this case that any such conviction preceded the suit.

The judgment of the lower court was, therefore, correct, and the same is affirme d with costs.


author: Fenner, J.

text:
      No. 7910.
    The State of Louisiana vs. The Citizens’ Bank of Louisiana.
    The stipulation in an act of sale, that the amount paid by the vendor to insure the property sold, in case the purchaser neglects to do it, shall be secured by privilege on the property, has no legal effect whatever, as privileges can only bo created by law and not by the agreement of parties.
    And the stipulation in the same act of sale, that said premiums of insurance shall be secured by mortgage upon the property, is equally of no avail to the vendor, if the amount and rate of insurance are not fixed in the act. The mortgage in such case is not for an exact sum, as required bylaw, and is, therefore, invalid.
    The pact De non alienando in an act of mortgage does not prevent a subsequent purchaser of the property mortgaged, from contesting the very validity of the mortgage itself. Such purchaser has acquired the projierty subject to the pact, provided the mortgage is real and valid; hut if it is not, the pact is itself of no effect.
    APPEAL from, the Sixth District Court for the parish of Orleans. Bightor, J.

      J. G. Egan, Attorney General, for Plaintiff and Appellant:
    To render a conventional mortgage valid it is necessary that the exact sum for which it i© given shall be declared in the act. O. Code, article 3309 ; 2 An. 790 ¡ 9 R. 482; 17 An. 00.

      Gibson, Hall & Montgomery for Defendant and Appellee.
    First — A mortgage stipulating that the property shall be insured by the purchaser, in a sum sufficient to secure the holder of the notes given as part of the purchase price, and that the property shall be kept so insured, and the policy transferred to the vendor, or holder of the notes, and that the holder of the notes is authorized to so insure in default of the insurance hy the purchaser, etc., is a valid mortgage lor the amount, including the premiums of insurance so paid hy the vendor or holder ol‘ the notes and attorney’s fees, in the aggregate, under article 3309 O. O.
    Second — Such a mortgage secures the insurance premiums so paid, as part of the purchase price, as well as attorney’s fees incurred in case of foreclosure.
    Third — A valid mortgage can be stipulated to secure the fulfillment of an obligation, or for the performance of an act, and in that respect articles 3291 and 3309 O. C. do not conflict where the performance of an act is to be secured as well as another stipulated sum.
    Fourth — Such a mortgage, with the pact de non alienando, secures the holder of the mortgage whether he is the vendor himself or a subsequent holder.

      E. G. Zacharie, on same side, on application for rehearing:
    First — The decision of the Court, if allowed to stand, will overturn a well established rule of property, which courts should never do, unless for the most cogent reasons.
    Second — A clause in a mortgage to reimburse the mortgagee for premiums of insurance paid by Mm, is an obligation incidental to the principal or primary contract, and as such its oxact amount need not he specified.
    Third — Under article 3290, C. C.,whichis borrowed from the Spanish law, and is not found in the C. C. of 1808, nor in the Code Uapoleon, the exact amount need not be specified in the> act of mortgage.

      Miller, Finney & Miller, on same side.
   The opinion of the Court was delivered by

Fenner, J.

The Citizens’ Bank sold to the New Orleans National Building Association the property then known as the St. Louis Hotel, at a price paid partly in cash and partly in notes.

The act contained a stipulation by which the vendee was bound to keep the property “constantly insured in an amount satisfactory to the holders o£ said notes (for the price), in one of the solvent insurance companies of the city, until the final payment of said notes; * * and should the said purchasers fail or omit to cause said insurance to be effected, any holders of said notes are fully authorized to effect insurance thereon at the cost, charge and expense of said purchasers, who obligate themselves to reimburse the premiums of insurance so paid, which are declared to be a privilege on the proceeds of the sale should the mortgage granted be foreclosed.”

It had been stipulated in a prior clause that, “ to secure the payment of said notes in capital and interest, in default of paym ent, premiums of insurance and attorneys’ fees, hereinafter provided, special mortgage, with vendor’s lien and privilege, is hereby retained on the property in favor of all holders of said notes, etc.”

The Building Association subsequently sold the property to the State, which assumed payment of the above notes for the price, and has actually paid them. Thereafter, the Citizens’ Bank, having paid insurance according to the stipulations of the first act of sale, brought suit, via ordinaria, against its vendee, the Building Association, and recovered judgment for the amount thereof, with privilege and mortgage on the property sold and then owned by the State.

Upon this judgment the Bank caused to issue a writ of ft. fa., under which the property thus held by the State was seized and advertised for sale, when the State brought this suit for an injunction against said proceedings.

The ground of the injunction is, that the Bank has no valid mortgage on the property for the amount of the insurance paid, because in the act of mortgage no sum was declared, in or within which said insurance might be effected.

The investigation must be confined to the question of the validity of the mortgage. The privilege claimed by the bank has no foundation. The mere perusal of the act shows that the insurance formed no part of the stipulated price of the property, and, therefore, was not covered by the vendor’s lien and privilege; and privileges being creatures of the law and not of conventions, the mere declarations in the act that the insurance premiums should bear a privilege on the property, are without effect.

We have searched in vain for any principle or precedent upon which the mortgage claimed can be entertained.

The Code provides ; “ To render a conventional mortgage valid, it is necessary that the exact sum for which it is given shall be declared in the act,” Bev. O. O. 3309.

Beyond a doubt, this article applies to every conventional mortgage, whatever be the nature of the “engagement,” the execution of which it is intended to secure, whether it be the payment of a liquidated debt, of an uncertain and contingent liability, or even the performance of an obligation to do or not to do. Bev. C. C. 3290-1-2.

In every case the “ exact sum,” to the extent of which the property is presently or contingently encumbered, must be declared in the act. If the obligation secured be uncertain as to its amount, or contingent as to its existence, the ultimate liability will, of 'course, only be fixed when it shall be liquidated, or when the condition, on which its existence depends, shall have happened. But, for the validity of the mortgage, it is essential that some exact sum, agreed on between the debtor and creditor, as the limit of the security, shall be declared in the act.

The corresponding article of the Code Napoleon (2132), after using the same language contained in our article, adds the following:

“ Si la créance resultant de l’obl'igation est conditionnelle pour son existence, ou indéterminée dans sa valeur, le créancier ne pourra requérir l’inscription que jusqu’a concurrence d’une valeur estimative par lui dóelaróe expressément, et que le dóbiteur aura droit de faire réduire, s’il y a lieu.”

The effect of this provision is that, where the obligations are of the character above mentioned, the mortgage may have effect, as between the parties, without any fixing of the amount; but it cannot be inscribed or have any effect as to third persons, until an estimated amount be fixed in the mode stated.

See 2 Paul Pont Priv. et Hyp., pp. 699 et seq.

The framers of our Code discarded all distinctions between parties and third persons, and required a certain sum to be fixed in the act as an essential to the validity of the mortgage in any sense..

The question has been not infrequently considered by this Court, and has been invariably determined according to the views here indicated.

Linton vs. Purdon, 9 Rob. 482; 2 An. 790; 17 An. 60; 2 An. 249; 3 An. 112, 663; 21 An. 607.

There has never been, to our knowledge, even a suggestion of a contrary view, and considering the plain language of article 3309, we see mot how a different opinion could be entertained.

The stipulation for attorneys’ fees, where the percentage is fixed, is valid. Although the amount on which suit may be required may be uncertain, it can never exceed the amount of the mortgage, and a fixed percentage on this maximum is the “ exact sum ” within which the mortgage is limited, as in the property-bank oases (2 An. 249; 3 An. 112, 663), where, although the amount of the loans actually made was not stated in the mortgage, yet as the amount of the stock was stated and the charter of the bank limited the loans to one-half the stock, the latter amount was considered as the sufficiently indicated maximum within which the loan mortgage was limited.

But here, the only limitation as to the amount for which insurance may be taken is “ an amount satisfactory to the holders of the notes,” and no stipulation whatever is made as to the rate of premium. It is clear, therefore, that the act contains no declaration of the “ exact sum ” of this item, and none by which any “ exact sum ” can be fixed.

This disposes of the case.

The contention that, because the mortgage contained the pact de non alienando, therefore, the judgment obtained by the bank against the original mortgagor recognizing the mortgage on this property, is res judicata against the State, which was no party to that suit, has no merit whatever.

A purchaser of property, subject to mortgage with or without the pact, acquires it subject only to the mortgage actually existing thereon. The presence of the pact does not make that a mortgage which is not a mortgage. It gives the right to the mortgagee to enforce his mortgage by proceedings directly against the mortgagor, without regard to alienations by the latter, but what he may so enforce is a real, and not a pretended mortgage. Whenever he lays hand on the property belonging to a third person, whether under an order of seizure and saló or under a fi. fa. on judgment, in proceedings against the original mortgagor alone, such third person may protect his property from being subjected to the satisfaction of a claim for which it is not lawfully liable, and can be debarred of no defense by any proceedings between others, to which he was not a party. It is not true that he can set up no defenses which the mortgagor could not; for he may defend an absence or insufficiency of inscription, which defense would not be open to the mortgagor. But, in addition, he may oppose ail defenses which the mortgagor could have opposed, at least if not personal to the latter; and the mortgagor cannot deprive him of these by waiver or otherwise; nor can his right to urge them be affected by any judgment to which he is not a party.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered, adjudged and decreed that there be judgment in favor of the State of Louisiana and against the defendants, maintaining and perpetuating the injunction herein issued, and that the Citizens’ Bank of Louisiana, defendant, pay costs in both courts.

Rehearing refused.