text:
    No. 7727.
    Charles Lafitte et al. vs. Widow E. R. Delogny et al.
    The wife may, after the death of the husband, ratify the act by which she had bound herself for his debt, during his lifetime.
    The nullity of such an act is only absolute in tbis sense, that she cannot ratify it as long as she is under the marital’influence.
    When the wife has ratified such an act after the death of the husband, the ratification is retroactive and renders the act valid from its original date.
    Therefore, creditors who only became so subsequently to its date, cannot attack the validity of the ratified act.
    APPEAL from the Fourth udicial District Court, parish of St. James. Duffel, J.

      Bobt. G. Dugué for Plaintiffs and Appellants:
    The rule that creditors cannot sue to annul contracts made before their debt accrued (C. C. 1993), refers only to contracts which can produce some effect — not to those which can produce none — such as simulated contracts and those which are reprobated by laws of public orde<.\ 15 An. 177 ; 12 An. 173; 1 An. 133.
    The prescription of one year against the action of an individual creditor to annul the acts of his debtor, only begins to run from the day he has obtained a judgment against him. O. C. 1994. Until be gets a judgment, be cannot bring the action, unless the defendant in the action to annul be made a party to the suit for liquidating the debt. C. C. 1972,1975.
    An act importing a confession of judgment is not a judgment.
    Contracts of a debtor made more than a year before suit is brought to anmil them, cannot he avoided, if the only cause of nullity be the preference given to one creditor over another: But, if they contain other causes of nullity, they may he avoided. C. C. 1987.
    A married woman cannotbind herself for her husband’s debts. C. C. 2398. This is alawof public order; and any attempt to violate it is absolutely null. C. C. 12; Demolombe, vol..l, p. 15, No. 17; p. 19, No. 20; 9 L. 585; 3 Merlin, Répertoire, verbo Dérogation; 1 Toullier, p. 87 et seq.; 14 An. 169 ; 12 R. 82.
    Contracts violating that law are considered as made in fraudem legis, like other contracts which violate other laws on the same and kindred subjects, and they cannot be ratified. 15 An. 651, 628; 30 An. 291,1021; 13 An. 12; 29 An. 253 ¡ 26 An. 375; 22 An. 462; 9 L. 351; ' 14 L. 115 ; 1 An. 304; 12 R. 82.
    Creditors of the wife, as well as the wife herself, may attack an invalid mortgage upon her * property, and sue to annul a sheriff's sale of her estate made in.violation of the rules and forms of law. C. C. 1989, 1990, 1970, 1977: 6 R. 21; 9 L. 542; 6 All. 552; 10 An. 18; 5 R-288; 30 An. 511.

      The mortgage of a married woman does not bind her, unless it inures to her separate advantage. This advantage is of the essence of the obligation, and must be shown by those who seek to enforce it, in a case where she has not been authorized by the judge. 29 An. 123; 30 An. 1021, 110G.
    And in order to bind her, the amount which inured to her benefit must be made certain, and must be shown to have been expended in something which the husband was not bound to furnish her. 9 An. 268; 5 An. 495, 586; 7 2T. S. 67; 7 M. 465; 4 R. 510; 1 An. 423; 6 R. 64; 6 An. 57.
    When no separation of property is proved, community must be presumed; and all debts contracted during the community, are presumed to be community debts, for which the husband alone is liable. 30 An. 1106; 12 An. 663, 852; 1U An. 30; C. C. 2403 ; 19 An. 249; 13 An. 546; 6 An. 57; 12 R. 580; 1 An. 428; 5An.l73,572 ; 6An.453; 13 An. 593.
    The wife is only bound to contribute to the family and household expenses when she has ob- «• tained a separation of property — and to bear them alone when nothing remains to the husband, after the judgment of separation has been executed. O. C. 2425.
    She ought (but is not bound) to bear a portion of the marriage charges, if all her property be paraphernal and she have reserved to herself the administration of it. C. C. 2389; 10 An. 554; 14 An. 281.
    In this case there is no judgment of separation; and it has not been shown that all her property was paraphernal, and that she had reserved to herself the exclusive administration of it.
    A notice to pay, a notice of seizure, a notice to appoint appraisers, an inventory of the property seized, etc., are necessary to make a valid sale under executory process. O. P. 735, 745, 654, 671; 6R.192; 2 An. 145; 22 An. 22; IE. 295; 5 An. 737.
    PTo papers at all were served on Mrs. Delogny, the sheriff's return to the contrary notwithstanding — and the sale is a nullity. (See her sworn testimony, p. 24 of transcript.)
    When a writ of seizure and sale prescribes a delay certain for its return into court, it must be returned as in the case of a fi. fa. C. P. 745, 642. A sale after the return day is void. 18 An. 657 ; 22 An. 23 ; 28 An. 75 ; 26 An. 735; 2 An. 776.
    A sheriff's sale must be made at the seat of justice, unless the debtor requires it to be made on the premises, under pain of nullity. O. P. 664, 665; 17L.76; 6R.21; 3An.l47; 2An.33G.
    The agreement between Mrs. Delogny and her son Neuville, to the effect that the exemptions should only apply in case a stranger should purchase the property, considered in this brief at p. 16 et saq. Testimony of Mrs. Delogny, pp. 25 and 26 of transcript.

      J. U. Foche for Defendants and Appellees.

      Spencer & White on the same side:
    Pirst — The wife may at any time resume and take the administration of her separate property, and had that administration when the debt to R. R. Delogny was contracted.
    Second — When administering, debts contracted by her for the cultivation and improvement of her property are valid. Such was her debt to IT. R. Delogny.
    Third — When separate in property or separately administering her estate, it is not only her right, but duty to contribute to the family expenses. C. O. 2389, 2395; Toullier, vol. 4, Secs. 553 to 565; Toullier, vol. 3, 2d part, p. 100.
    She was separate, and separately administered her estate in this case.
    Pourth — To maintain the “ revocatory action,” the creditor must show first that his debt existed at date of the act complained of; and second, that the act was not only injurious, but fraudulent. O. C. Arts. 1993, 1978.
    Plaintiff has proven neither fact.
    Pifth — If a debt is a just one it is no fraud to acknowledge it before it is prescribed, or to refuse to oppose its execution. A debtor is not obliged to do wrong to one creditor in order to protect another creditor.
    Sixth — If the alleged fraud consists merely in giving preference to one creditor, the action i« barred by one year from the date of the act giving the preference, C. C. 1987.

      Plaintiffs’ action was brought four years after H. It. Delogny’s purchase, and is barred.
    Seventh — An act absolutely void and non-existent cannot be ratified. If the law declares that an act done by an incapable can be ratified, that act is not in the proper sense, and, from every standpoint, absolutely void.
    Eighth — The law declares that the acts of married women, ultra, vires, and beyond the limits of their legal capacity, may be ratified. C. O. 1786.
    That those contracting with them cannot plead the nullity resulting from her incapacity. C. C. 1791.
    Hinth — If an act is, from every point and view null and non-existent, as contrary to public order, any one having the least interest may plead its nullity. C. C. 12.
    The fact that the person contracting with the wife cannot plead it, shows that her act is not in all respects null and void.
    Tenth — Her act, in such cases, is only conditional. The suspensive condition which affects it is that she shall, or Shall not, ratify after her incapacity ceases. If the condition happens— if she ratifies, it is valid from its date. If the condition do not happen, if she does not ratify it, and she or her representatives repudiate it, it is void, db initio. Like all conditional contracts, they are void or valid, db initio, according as the condition happens, or does not happen. The happening or non-happening of the condition retroacts to the day of the contract, and validates or invalidates it accordingly. C. C. 2021, 2042.
    Eleventh — It is only in this sense, and to this extent, that the contract can be properly said to be void. It is only when the wife does not ratify it, and it is repudiated by her or her representatives, that the event has happened that nullifies the act retroactively. It is only in this class of cases that our courts have ever declared such acts null and void.
    Twelfth — The acts done by married women, ultra vires, are only relatively, only conditionally, null. See Marcade, vol. 4, p. 405, on Arts. 1124 and 1125, O. H.; Toullior, vol. 1, pp. 597, 598. See, also, C. O. 2221, which declares that if the wife does not sue to annul such acts within ten years, the action is barred.
    Thirteenth — The incapacities of married women may be classified as follows: 1.. Incapacity for want of authorization, Arts. 122, 2397 C. C.; 2. Incapacity growing out of the relation she bears to the husband, C. C. 1790; and 3, incapacity growing out of the subject-matter of the contract, O. C. 1790, 9398.
    fourteenth — Those incapacities are all akin — all of the same nature. They are all born of the same necessity, to wit: That of securing the husband’s supremacy on the one part, and of protecting the wife’s dependence on the other part. The incapacity in the one case is as much a regulation of public order as in the other. The nullity affecting the wife’s sale of her immovables, without authorization, is as radical as that affecting her promise to pay the husband’s debt. This is demonstrated by Arts. 2397 and 2398. They are grouped under , the same section of the Code treating of the incapacity of the wife; and the language of prohibition is identical in the two articles.
    fifteenth — It is only when viewed from the standpoint of a married woman, who has not ratified, and who, in person, or through her representatives, repudiates the contract, that it oan be said, or ever has been said in any adjudicated case, that the contract is null and void. In such a case the condition has happened which defeats, resolves and renders as never having existed, the contract.
    ■Sixteenth — The cases cited by plaintiff are all of the class stated in above, Ho. 14. They have no application to this case, where the wife, after the death of her husband, has formally ratified the contract, thereby fulfilling the condition wh.ch retroacts and validates the act db initio.
    Seventeenth — The note and mortgage are evidence of a single contract. The mortgage act contains full proof of the debt, and of that identical debt, the note is only another and additional evidence. The acknowledgment made in writing on the note, in ¿Tanuary, 1872, operated upon the entire contract — just as transfer of the note operates a transfer of the mortgage. The fact that the mortgage is not negotiable, in the sense of the law merchant, so as to defeat equities, is totally irrelevant to this case.
   The opinion of the Court was delivered by

Todd, J.

The plaintiffs, mortgage creditors of the defendant, Widow E. R. Delogny, seek by this action to annul a sheriff’s sale of a plantation, situated in the parish of St. James, made on the 4th of April, 1874. This sale was made in a proceeding to foreclose a special mortgage on the property, executed by Mrs. Delogny on the 29th of November, 1865, in favor of N. R. Delogny, her son, who was the purchaser at said sale, and is also a defendant in the action.

It is charged in the petition that the debt for which the property was sold was not the debt of Mrs. Delogny; that if it ever had any existence at all, it was a debt of her husband, for which she obligated herself in contravention of a prohibitory law; and it was, therefore, an absolute nullity; and further, that it was prescribed before the date of the sale.

It was alleged, also, that the sale was a nullity owing to certain irregularities and illegalities in the proceedings, under which it was made — -which irregularities are specifically set forth in the petition.

This action of nullity was coupled with a suit for the debt claimed to be owing the plaintiffs by Mrs. Delogny, and for a recognition of the mortgage securing the same.

The defendant, N. R. Delogny, answered; first, pleading the general issue, and then averring the reality and validity of the mortgage debt under which the property acquired by him at the sheriff’s sale was sold, and the legality of that sale, alleging that the consideration of the debt inured to the benefit of Mrs. Delogny, his co-defendant, who, at the time it was contracted, was the owner of" the plantation mortgaged, and separated in property from her husband, and finally, he denied the right of the plaintiffs to attack this mortgage or demand the nullity of the same, for the reason that plaintiffs were not the creditors of Mrs. Delogny at the date of the contract, nor till long afterwards.

No answer was filed by Mrs. Delogny. There was judgment by default against her for the debt sued on, with a recognition of the mortgage on certain property not embraced in the act of mortgage to N. R. Delogny, and'rejecting the demand for the nullity of the sheriff’s sale. From this judgment the plaintiffs appealed.

The mortgage was executed by Mrs. Delogny in favor of N. R. Delogny, on the 29th November, 1865, and the one in favor of the plaintiffs, together with the notes which it was given to secure, on the 29th of December, 1872.

It is plain that, if the mortgage in favor of N. R. Delogny was given to secure a real and valid debt of Mrs. Delogny, and it was a subsisting debt at the time of the sale in question, it could not be attacked by the plaintiffs, who became her creditors long after its execution. This, we understand, is conceded. The plaintiffs, however, deny that it was given to secure a legal or valid debt of Mrs. Delogny. On the contrary, they aver that the alleged debt and mortgage never had any existence, that they were absolute nullities, because given for the debt of the husband of Mrs. Delogny, then living, in contravention of the express provision of the Oode, declaring that-a wife cannot bind herself for the debt of the husband. They further charge that this debt, if it ever existed, was extinguished by prescription before the sale was made under it.

It is shown that the plantation mortgaged was the separate prop» erty of Mrs. Delogny, and had been long prior to the date of the mortgage in favor of her son. Much testimony was taken to show that Mrs. Delogny had the separate administration of her property, and that the ' debt in question inured to the separate benefit of her property under her exclusive administration, and that, therefore, the debt was her debt not the husband’s, for the payment of which she legally bound herself in the act of mortgage.

The view we take of this ease, after a thorough investigation of the issues presented in the pleadings and the law bearing on the same, renders it unnecessary that we should decide this question of law and fact, in regard to and bearing upon the original liability of Mrs. Delogny for this debt. We are strongly inclined to believe, from the evidence, that the debt, or a large portion of it, was contracted for the benefit of Mrs. Delogny’s separate property, and administered by her, and, therefore, a valid and subsisting debt against her; but, as stated, the decision on this point is not necessary to the conclusion to which .we have arrived.

As shown above, the act of mortgage in favor of N. E. Delogny was passed in November, 1865. The husband of Mrs. Delogny died in 1866 On the 6th of January, 1872, Mrs. Delogny formally and in writing acknowledged the debt, and promised to pay it, thus fully ratifying the contract, and interrupting prescription upon it. In December, 1872, she executed the mortgage and notes in favor of the plaintiffs.

The mortgaged property was sold in April, 1874, under executory process taken out on the mortgage in favor of N. E. Delogny, and by her silent acquiescence in the proceedings and sale, she again'ratified the contract in which they were based.

Admitting that the debt originally was the debt of her husband, which she thus ratified and promised to pay and permitted the sale of her property to pay, did such ratification create any legal obligation on her part, and make the debt a valid debt against her from the time it was contracted ? In other words, was the mortgage given by her for the debt of her husband, conceding it to be such, a nullity so absolute and radical as could not be ratified by her, after the death of the husband and after she was thus freed from marital power and influence ?

The question of the nullity of contracts has been a subject of profound inquiry to civilians, in the discussion of which they have displayed a great deal of legal acumen and ingenuity — sometimes presenting distinctions respecting the different classes of alleged nullities so refined and attenuated as to be almost beyond the power of the human mind to grasp them. Out of these discussions we can, however, deduce certain general rules or principles bearing on the subject, which, from frequent recognition and adjudication, may now be regarded as almost elementary.

While we find that the best known and most marked division of nullities is that of absolute and relative nullities, yet the former have been subdivided into two kinds or classes.

Eor instance, if the cause of nullity in a contract rests on motives primarily or exclusively of public policy or social order, or has its origin in the respect due to good morals, it is a nullity so absolute and radical that the law always and continually resists it and makes and declares it as non-existent and not susceptible of ratification. Among contracts thus tainted are cited contracts by the father or husband to surrender the paternal or marital power, contracts to pay money for the commission of a crime, a partition of a succession b'efore it is open, and such like contracts.

This principle is thus enunciated by Dunod, a writer of acknowledged distinction:

“La prohibition est censée faite par rapport a l’intórét public lorsque son premier et principal objet.est le bien de la socióté, la conservation des choses et droits qui appartiennent au public, et qu’elle statue sur ce qui concerne les bonnes moeurs, ou ce qui est hors du commerce, par le droit naturel, des gens ou civil.
“ Tellessont les dispositions des lois au sujet des actes quiemportent quelque dólit ou quelque turpitude, ou contiennent l’aliénation de ce dont le commerce est interdit, pour une cause publique et perpétuelle comme les choses saeróes et le domaine.
“La nullitó qui résulte de la prohibition en ce cas est absolue, parceque la loi rósiste continuellement et par elle méme a l’acte qu’elle dófend; elle le róduit a un pur fait, qui ne peut étre ni confirmó ni autorisó, et qui ne produit aucun droit, aucune action ni exception. Cette nullitó peut étre objectóe, non-seulement par la partie publique, mais encore par toutes sortes de personnes.”

Dunod, Traite des Prescriptions, 1er part, chap. 8, p. 47.

Another class of nullities which do not fall strictly under the principles above- referred to are, nevertheless, in a certain sense, absolute. It is .that class of nullities which, while they to some extent affect public order and the general interest of society, are nevertheless established primarily in the interests of individuals.

As the same author expresses it:

“ Quoique la fin de la loi sóit toujours l’intérét du public et de la société, la vue de cet intérét est souvent éloignée, et la loi considere en premier lieu, dans sa prohibition et dans les nullités qu’elle pronance, l’intérét des particuliers.” Primario speotat utilitatem privatam et secondario publicam.

Toullier, speaking of this class of nullities, uses this language:

“Des nullités prononeées prineipalement, primario, pour intérét des particuliers * * * sont nóanmoins absolues dans ce sens qu’elles anéantissent essentiellement et radicalement l’acte et'le font regarder comme non fait et non avenu.
“ Ainsi, s’il est vrai que toutes les nullités qui ont l’intérét public pour cause premiere sont absolues, il n’est pas vrai de dire que toutes les absolues ont pour cause l’intórét public.”

Toullier, vol. 4, 553 et seq.

This division of absolute nullities into two kinds, based on the reasons mentioned by the authors cited, has been expressly sanctioned by the decisions of this Court.

Vaughan vs. Christine, 3 An. 328.

Chesneau’s Heirs vs. Sadler, 10 M. 226.

Hassel’s Heirs vs. Lefebre, 6 L. 601.

Toullier cites among this kind of nullities the alienation of dotal property and the sale of an immovable of a minor by his tutor; and in regard to the latter, he says: this sale of a minor’s property is null, absolutely null, yet the minor may ratify it, and then adds:

“ En un mot, nous ne connaissons point de nullité fondée sur l’intérét pi’ivé qui ne puisse étre réparée par la ratification expresse ou tacite.”

And this language of Toullier, and the doctrine which it sanctions, have been approved by this Court. 3 An. 328.

The nullity charged, respecting the act of mortgage executed by Mrs. Delogny in favor of her son in this ease, may be classed among the nullities that results from the incapacity of the wife, growing out of the relation she bears to her husband. C. C. 1790.

To judge of the character of the nullity, we must consider the reasons for its enactment.

It is evident that when the law declares that the wife cannot bind herself for her husband, or become security for his debts, this was to protect her against acts resulting from her dependence on her husband. The law grants to the married woman the ownership of all property which she may bring into the marriage, or which may fall to her by inheritance or otherwise, after marriage, with the further right to the separate administration of such property. All these and similar rights granted by law to married women would be insecure, and amount to little or nothing, if the wife were permitted to bind herself for her husband’s debts, and hence, the necessity of the safeguard and protection afforded her and her property against the marital power of the husband, in the wise provision which declares that she cannot thus obligate herself for the debts of her husband. If, in violation of this legal provision, she does so contract, the contract is a nullity, and, i'n a certain sense, an absolute nullity. During the continuance of marital authority, it has no existence, and she cannot ratify it. And even when the marital authority ceases by the death of the husband or otherwise, it is still non-existent, and she and her heirs after her can invoke the nullity of her act. And such contract can never spring into life or obtain vitality unless the wife, emancipated from marital authority and restored to her full and complete capacity to contract, chooses, in the exercise of her freedom, to ratify it, and by such ratification endow with being a contract, which, up to that time, had remained dormant, or had never existed. Baiione oessante, cessat ipsa lex.

Such a contract may be assimilated to other contracts which the wife is forbidden to enter into without the consent of her husband. Thus article 2397 Civil Code declares that the wifé, whether separated ■ in property by contract or judgment, or not separated, cannot, except by and with the authorization of her husband, and in default of the husband, with that of the judge, alienate her immovables of whatever nature they may be. And another article (121) forbids her to mortgage or acquire without such authorization. These provisions of law may be presumed to have been enacted in a certain sense from motives of public policy and the general interests of society, for the proper and salutary maintenance of marital authority, as the other, first quoted, was designed for the protection of the wife against the undue exercise of such authority. They seem to stand on the same footing; and it is worthy of note that article 2397, forbidding the wife to sell her immovables, and article 2398 containing the prohibition against her binding herself for the husband’s debts, constitute of themselves one section, and that section is entitled, “ Of the wife’s incapacity to alienate her immovables or to bind herself for her husband.” Such arrangement and grouping of the articles, with the common title given them, afford a fair inference that the nullities established by the said articles are of the same character. Now, it will hardly be questioned that a married woman who sells her immovable without the authority of her husband, can ratify such sale after the dissolution of the marriage; yet, the same terms of prohibition are used in the one article as in the other, and motives of public order or social interests evidently underlie both.

Nor is the Code silent in regard to.the power of the wife to ratify contracts'which the law forbid her making during marriage, after such disability shall have ceased. Article 1786 0.0. declares:

“ The unauthorized contracts made by married women, like the acts of minors, may be made valid after the marriage is dissolved, either by express or implied ratification.”

And in this power of ratification thus conferred we see no distinction made in the contracts that may be ratified and no limitation of the power to ratify, to any particular class of contracts.

One test of the absolute nullities of contracts, that is of nullities of so absolute a character that they can never be ratified, is that such contracts confer no rights on any party thereto, and no right or claim can grow out of them; that the nullity can be invoked, not only by the parties, but by any one having the least interest in doing so. If the prohibited contracts of a married woman were of this class, she could in no case claim any right under them, but they would be void as to her as well as to the party with whom she contracted. Yet, the law has expressly provided “that persons who have treated with a married woman cannot plead the nullity of the agreement, if it is sought to be enforced by the party when the disability shall cease.

The case of Gasquet vs. Dimetry, 9 An. 585, strongly relied on by the plaintiffs’ counsel in support of his position on this question, nor in fact any of the numerous authorities cited by him, are in opposition to the views we have expressed. The case referred to and the others mentioned were cases where the wife never ratified the contract, and where she or her representatives had invoked its nullity. We have stated expressly that, where there is such want of ratification, or where its nullity is invoked, the contract can never be said to have existed at all; but is void ab initio.

The contract between Mrs. Delogny and N. R. Delogny, being one that was susceptible of being ratified by her, granting that it was in the beginning invalid, and being thus ratified, such ratification was retroactive, and gave it a legal effect from the day it was entered into by the parties. Omnis ratihabitio retro tráhitur et mandato cequiparatur.

The plaintiffs, not being creditors of Mrs. Delogny at that time, and the obligations sued on having been contracted subsequent to the ratification of the contract complained of, they have no legal right tó attack it.

The only remaining question to be noticed, is in relation to the alleged nullity of the sheriff’s sale on account of the illegalities charged in the petition.

We have examined carefully the proceedings under which the sale was made, and the sheriff’s deed to the property. The deed details with remarkable particularity the observance of all the formalities prescribed by law as essential to the validity of a sheriff’s sale. The recitals In the deed, taken in connection with the judgment and writ under which the sale was made, make prima facie evidence of the validity of the proceedings and of the proper observance of the formalities embraced in such recitals, and are conclusive of the regularity of such proceedings and validity of the sale, unless successfully contradicted by opposing evidence. Giving the fullest effect to tire testimony introduced to rebut these presumptions, it does not create a probability that any of the. required formalities were omitted. It is not necessary that we should refer specially to this testimony or describe wherein and how it was insufficient to support the charges of irregularity directed against the sale; it is enough to state our conclusions in this regard.

Nor do we perceive that the failure of N. R. Delogny to sell or have sold all the property mortgaged to him, affects or in any manner impairs the validity of the sale. Such exemption certainly gave plaintiffs, subsequent mortgagees, no cause for complaint.

The judgment of the lower court is affirmed With costs.

Rehearing refused.

Mr. Justice Poohé recuses himself, having been of counsel.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 7770.
    Widow Viléor Dugas vs. The Town of Donaldsonville.
    It was a sufficient consideration for the bonds sued upon, that they were issued in settlement by compromise, of outstanding claims against the municipal corporation, which had enured to the latter’s benefit, and which were believed by the municipal authorities and the creditors to be valid and exigible.
    The legality of those original claims cannot bo examined in an action on the bonds issued in execution of such compromise.
    INullity of the title, in execution of which a compromise was made, can only be invoked, as a cause of rescission, when the title was falsely supposed to be valid, through error of fact, not through error of law.
    APPEAL from the Fourth Judicial District Court, parish of Ascension. Duffel, J.

      JR. N. Sims for Plaintiff and Appellee.

      Jtnckolls & Pugh for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

This suit is brought upon bonds of the Town of Donaldsonville of the same character, tenor and series as those involved in the ease of Justilien Oubre vs. the same defendant, just decided. That decision disposes of all the points involved in this case except the defense of want of consideration for the bonds sued on.

In the Oubre case the plaintiff was shown to be a third holder, for value, and by transfer before maturity of the negotiable bonds sued on; and we held that, as to such holder, the corporation could only maintain defenses affecting the power of the corporate authorities to execute the bonds, and could not plead equities affecting the consideration thereof.

In the present ease it is not alleged or proved, that the plaintiff is such third holder, and the record, though not very clear on the point, leaves us to infer that she holds the bonds by inheritance from, or in representation of the original holder, Rosemond Braud,-to whom the bonds were directly issued by the town. As to such original holder and as to his successors or legal representatives, the town cannot be denied the right of setting up defenses of want of consideration.

The defense here is that the bonds sued on were without consideration, because issued in renewal or settlement of pre-existing bonds or evidences of debt which were illegal, null and void because issued by the Mayor without authority from the Board of Selectmen of the town, and because, at the time of issuance of the same, no provision was made for the payment of the principal and interest thereof, as required by law.

This case cannot be treated as if it were a suit upon the pre-existing bonds themselves, and the authorities quoted as maintaining defenses of the kind stated when opposed to such direct suits, are not applicable in the present case.

The powers conferred on the Mayor and Selectmen of Donaidsonville by the Act No. 69 of 1861 are unusually broad and sweeping in their character. By that act they were authorized “ to issue bonds of said town, for such sums, not exceeding §25,000, as in their judgment may be required for the interest of said town.” Of course, this cannot be construed as authorizing these officers to perpetrate wilful frauds upon the town or to give away its bonds without pretense or belief of consideration enuring to its benefit or interest. But it did certainly authorize them to exercise their judgment, in good faith, in determining what was for the interest of the town, and, for such purposes, to issue bonds.

This record informs us that, at the time when the bonds sued on were issued, there were outstanding matured claims against the corporation to a large amount, undoubtedly founded on original consideration which had enured to its benefit, and believed by the holders and the corporate authorities to be valid and exigible, the holders of which were threatening-to sue on them, and the immediate enforcement of which would have imposed an enormous immediate burden on the taxpayers. Under these circumstances, we have no reason to doubt that the corporate officials exercised their honest judgment in determining that it would be for the interest of the town to close up these outstanding claims by a compromise or transaction with the holders, under which the latter would accept, in settlement thereof, new consolidated bonds maturing at ten years from date, and under which the corporation would be relieved from the danger •of immediate and intolerable taxation.

This settlement presented all the features of a compromise or transaction between the town and the claim-holders, who “for preventing a law-suit, adj usted their differences by mutual consent, in the manner which they agreed on, and which every one of them preferred to the hope of gaining, balanced by the danger of losing.” Rev. C. C. 3071.

We think that such a compromise, however unfortunate it may turn •out to be, entered into in good faith, in the exercise of an honest judgment that it was for the interest of the town, was within the legitimate scope of the powers conferred by the Act 69 of 1861.

The compromise, thus validly entered into, operates a waiver of objections to the claims settled thereunder, which cannot be revived in an action to enforce the compromise itself.

Bach vs. Slidell, 1 A. 375.

Nullity of the title, in execution of which the compromise was made, under Art. 3080, Rev. C. C., can only be invoked as a cause of rescission, when, in the compromise, the title was falsely supposed to be valid ’through error of fact. When the mistake as to its validity results only from error of law, the article is not applicable.

Davis vs. Robinson, 11 A. 752.

So held in Prance, under Article 2051 C. N.; identical with ours.

Sirey, vol. 7, part 1st, p. 199, 25 March, 1807.

Sirey, vol. 14, part 1st, p. 85, 3 December, 1813.

18 Dur. p. 428; 2 Solon, Nullités, Nos. 402, 403.

If there was any error on the part of the corporate officials as to the validity of the titles representing the claims settled, it was error of law ■only. The archives or records of the town informed them of all the facts and circumstances attending the issuance of the pre-existing bonds, and it is not proved, or even pretended, that they were ignorant thereof. We think, therefore, the surrender and cancellation of the old titles and the ■delay granted formed a sufficient consideration for the compromise and for the new bonds issued thereunder.

As heretofore stated, all the other questions involved in this case •find their solution in the opinion rendered in the case of Oubre vs. the same defendant.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and proceeding to Tender such judgment as should have been rendered by the lower court,it is now ordered, adjudged and decreed: that the following be recognized and declared to be the amount remaining unpaid upon the bonds held by plaintiff and sued on in this case, viz: the sum of $1400, with five per cent interest per annum on $80 from April 1st 1872; on $80 from April 1st, 1873; on $80 from April 1st, 1874; on $80 from April 1st, 1875; on $80 from April 1st, 1876, and with eight per cent per annum interest on $1000 from April 1st, 1876; that she be recognized and declared to be a creditor of defendant for her ratable share of six thousand dollars remaining unpaid out of the provision made for the redemption of the principal and interest of the bonds issued under the resolution of the Mayor and Board of Selectmen of the defendant, dated March 20th, 1866, said ratable share to be the proportion of said $6000, which the amount remaining unpaid on her hands as above settled shall bear to the amount remaining unpaid on all the bonds issued in pursuance of said resolution; and that the defendant be condemned to pay the amount of said ratable share.

It is further ordered, that the tax collector proceed forthwith to •collect the special tax of one thousand dollars, levied by ordinance of March 20,1866, on the assessment rolls of 1871,1872,1873,1874,1875 and 1876, and to turn the same over to the treasurer or proper authorities of the Town of Donaldsonville, to be applied to the satisfaction of the debt due plaintiff, according to the principles stated in this decree, and subject to the orders of the court a qua in execution thereof.

And that the costs of this appeal be paid by plaintiff and appellee, and those of the lower court by defendant.


text:
    No. 7835.
    Victor Maurin et al. vs. The Town of Donaldsonville.
    Tbe bonds sued upon baying been issued in settlement, by compromise, of former claims against tbe municipal corporation, as in tbe preceding case of 'Widow Viléor Dugas vs. Tbe Town of Donaldsonville, tbe fact that tbe original claims were prescribed when tbe new bonds were issued, is no defense to an action on said bonds.
    APPEAL from the Fourth Judicial District Court, parish of Ascension. Duffel, J.

      B. N. Sims for Plaintiffs and Appellees.

      Wicholls '& Pugh for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The bonds here sued on are of the same series with those involved in the cases of Oubre and Dugas vs. the same defendants, just decided.

The only point peculiar to this case and not expressly disposed of in the above decisions, is the defense that the pre-existing bond, in settlement of which those sued on were issued, was prescribed at the date of the latter.

Under the views expressed by us in the Dugas case to the effect that the settlement between the town and claim-holders in 1866, under which the new bonds were issued, was in the nature of a compromise or transaction, within the powers granted to the corporate officials by Act 69 of 1861, and therefore valid, we think the defense of prescription as well as .all other objections to the anterior claims were waived thereby, and cannot be revived in an action to enforce the compromise.

It is not pretended that there was any error of fact as to the status of the old bond. On the contrary, upon its face, it was more than five years past due. Non constat that proof of interruption of prescription might not have existed; or that the town council might not have known, or thought, or feared, that such proof did exist, or might not have believed, through error of law, that the prescription of five years was not applicable. At all events, in the exercise of their judgment, they thought it to the interest of the town to compromise and settle with bonds issued under the wide legislative authority which had been conferred upon them. This excludes the defense.

The numerous authorities cited would apply only to a suit upon the prescribed bond itself, and cannot be invoked in an action on new obligations issued in carrying out a compromise.

For these reasons and for those assigned in the cases of Oubre and Dugas vs. Town of Donaldsonville, Nos. 7769 and 7770 of the docket of this Court,

It is ordered, adjudged and decreed that the judgment appealed trom be annulled, avoided and reversed; and proceeding to render such judgment as should have been rendered by the lower court, it is now ordered, adjudged and decreed that the following be recognized and declared to be the amount remaining unpaid upon the bonds held by plaintiffs and sued on in this case, to wit: the sum of ‘$4113 83, with five per cent per annum interest on $235 07 from April 1st, Í872, on $235 07 from April 1st, 1873, on $235 07 from April 1st, 1874, on $235 07 from April 1st, 1875, and on $235 07 from April 1st, 1876; and with eight per cent per annum interest on $2938 48 from April 1st, 1876; that plaintiffs be recognized 'and declared to be creditors of the defendant for their ratable share of the six thousand dollars remaining unpaid out of the provision made for the redemption of the principal and interest of the bonds issued under the resolution of the Mayor and Board of Selectmen of defendant dated March 20th, 1866, said ratable share to be the proportion of said six thousand dollars which the amount remaining unpaid on plaintiffs’ bond, as above settled, shall bear to the amount remaining unpaid on all the bonds issued in pursuance of said resolution; and that the defendant be condemned to pay the amount of said ratable share.

It is further ordered that the tax collector proceed forthwith to collect the special tax of one thousand dollars levied by the ordinance of March 20th, 1866, on the assessment rolls of 1871, 1872, 1873, 1874, 1875 and 1876, and to turn the proceeds over to the treasurer or proper authorities of the Town of Donaldsonville to be applied to the satisfaction of the debt due plaintiffs according to the principles stated in this decree, and subject to the orders of the court a qua in execution thereof.

And that the costs of this appeal be paid by plaintiffs and appellees, and those of the lower'court by defendant.


author: Poché, J.

text:
    No. 7829.
    Widow Augustine Holt et al. vs. Board of Liquidators of Hart & Hébert.
    The Congress of the United States had no power to enact rules of judicial proceedings and evidence for the trial of causes in the State courts, and, to that effect, to declare that no written instrument should be received in evidence unless it were stamped. The Decision in Pargoud vs. Richardson, 30 An., 1286, affirmed.
    Citation addressed to the wife and husband to assist her, and served upon the wife in person, is legal.
    Pailure to serve notice on defendant, of judgment rendered against him by default, is one of the informalities which are cured by the prescription of five years.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. McVea, J.

      Henry Avery for Plaintiffs and Appellants:
    Upon all questions as to the effects, scope and constitutionality of a law of Congress, it is the decision of the United States Supreme Court alone that settles the law (7 R. 219; 22 An. 507) j that tribunal having held the provisions as to stamps in the Internal Revenue laws of 1864-66-67 applicable to State as well as Pederal courts, all conflicting decisions of State courts are null and void.
    Under C. P. 182, a single citation for wife and husband is valid if served upon the husband, for he represents, under our laws, both himself and wife. It is invalid if served only on the wife, for she represents only herself.
    The notice of seizure served upon Mrs. Holt did not cure the want of notice of seizure upon her co-proprietor, Joseph H. Young. 28 An. 749.
    Want of notice of judgment was not cured by the prescription of five years. 29 An. 557, Marbury and Crosley vs. Pace.

      S. P. Greves, Favrot & Lamon, and Herron, Bird & Beal for Defendants and Appellees.
   The opinion of the Court was delivered by

Poché, J.

Plaintiffs allege that they are the lawful owners of lots 8, 9 and 10 in square No. 4, Devall Town, in the city of Baton Rouge, alleged to be in the unlawful possession of defendants, and also allege the absolute nullity of several judgments and public sales made thereunder, and forming the chain of titles under which defendants hold the property as owners.

Defendants, after pleading the prescription of five years against the alleged informalities in the various proceedings under which they acquired title, set up a chain of titles which will be best understood by a statement of the facts underlying the controversy.

Lots No. 8 and 9 were acquired in April, 1859, by Henry A. Castle, who was then the duly qualified natural tutor of his five minor children. Lot 10 was acquired in indivisión by the said Castle and A. M. Kean in June, 1859; and in September of the same year Castle became the sole owner of the three lots, which became affected with the tacit mortgage of his minor children, to each of whom he-owed the sum of $3426 04, as shown by an account of his tutorship, which was homologated on the 7th of April, 1866.

In the meantime, however, Castle had sold the three lots, which became the joint and undivided property of Mrs. Augustine Holt, then the .wife of Jordan Holt, and Joseph N. Young, on the 24th of November, 1860. Now, in 1866, in the suit of Nathan and Lavinia Castle, who had been fully emancipated by a judgment of a competent court, against their father, H. A. Castle, a judgment was rendered in their favor, recognizing and enforcing their tacit mortgage, to date from the tutor’s qualification, on the three lots of ground then owned by plaintiffs.

In execution of this judgment Nathan and Lavinia Castle instituted the hypothecary action against Mrs. Holt and Young, which suit culminated in the sale, under execution, of this property, which was adjudicated to Nathan and Lavinia Castle on the first of August, 1868, for $4435.

Sometime after this occurrence, H. A. Castle, as tutor of his three other children, brought suit in their behalf for the purpose of enforcing their tacit mortgage against this identical property, and under a judgment in tlieir favor, the three lots of ground were seized and sold by the sheriff to F. E. Hebert, for $3000, on the 6th of February, 1869.

With the exception of a portion of two of the lots which he sold to Henry Jones and Chas. Wricks, Hébert, as a member of the firm of Hart & Hébert, in a voluntary surrender, conveyed this property to the defendants as agents of creditors of said firm.

Defendants’ titles were recognized by the lower court, from whose judgment plaintiffs have taken the present appeal.

1st. Among the formidable array of objections and alleged irregularities which are leveled at defendants’ title, we find plaintiffs urging the nullity of the judgment emancipating Nathan and Lavinia Castle, of the judgment obtained by them against their father, and of the judgment in their hypothecary action against Mrs. Holt and J. N. Young, on the ground that United States internal revenue stamps had not been affixed to the petitions in the first two cases, and that in the latter, the judgment had been predicated upon important documents admitted in evidence without the essential stamps.

In disposing of these objections we indulge the hope that this question will never more bo the subject of judicial investigation in this State.

The Bench and Bar should both congratulate our immediate predecessors for having permanently eliminated from the field of legal discussion this harrassing and vexatious question, usually invoked in the defense of weak and desperate causes. In their masterly opinion in the case of Pargoud vs. Richardson, 30 An. 1286, they held that the Congress of the United States, in the exercise of its unquestioned right to levy and collect taxes, had no power to enact rules regulating judicial proceedings, and the competency of evidence upon the trial of causes in State Courts; and that Congress had, therefore, no authority to declare that a written instrument of any kind shall not be received as evidence in a State court, unless it is stamped; such a restriction appertaining alone to the legislative authority of the State.

This doctrine, which had been previously maintained in the highest tribunals of several States of the Union, meets with our unreserved approbation, and commends itself to the legal mind as a wise and judicious solution of a problem which had for years perplexed the profession and hampered judicial proceedings.

Plaintiffs’ objections on that score have, therefore, no force.

2d. Plaintiffs next allege irregularities in the proceedings instituted, the judgment rendered, and the sale made in the case of H. A. Castle, Tutor, vs. Nathan and Lavinia Castle. But these proceedings are subsequent to the date of the seizure of their property in 1868. If that sale was valid, and plaintiffs thereby expropriated, we conceive that they have no coneern as to the future fate and disposition of property which had ceased to be theirs.

Their rights or titles must be tested under the sale of August, 1868, and cannot be affected by any subsequent proceedings between other parties who are not before the Court.

3d. The alleged nullity growing out of the want of citation on Mrs. Holt’s husband in the hypothecary action, is answered by the record, which shows that the citation was addressed to “ Mrs. Augustine Holt, wife of Jordan Holt, and the said Jordan Holt to assist and authorize her,” and that it■ was served on Mrs. Holt in person, which complies with the requirements of the law. O. P. Art. 192.

4th. The record also, and in the same manner, negatives the assertion that no notice of seizure was served on Mrs. Holt in the same case.

5th. The other alleged irregularities, such as the failure to serve on Mrs. Holt a notice of the judgment rendered against her by default.and other informalities, are cured by the prescription of five years.

C. C. Art. 3543; 21 An. 587; 29 An. 534, Fraser vs. Zylicz.

' It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.

Rehearing refused.


author: Levy, J.

text:
    No. 7107.
    Marie Elizabeth Martin, Wife of John Dawson, vs. Pierre Landreaux and Marie Landreaux.
    Tlie Recorder of Mortgages cannot be held responsible for tbe loss of tlie legal mortgage of tbe wife, by the inscription of the marriage contract in the hook of Donations, previous to the legislation which requires that such mortgage he recorded in the book of Mortgages. At that lime, the inscription of the contract in the book of Mortgages would have had no more effect than the same in the book of Donations, inasmuch as the legal mortgage of the wife existed without inscription. The Recorder could not be expected to have anticipated the change of legislation. It was for tlie wife herself to have complied with the requisites of the new law.
    APPEAL from the Sixth. District Court for the parish of Orleans. Hightor, J.

      E. Howard McCaleb for Plaintiff and Appellant;
    Dirst — An action against a Recorder for the damages resulting from the failure of official duty in notinscribing a marriage contract in tlie register of mortgages (Rev. O. C. Art. 3388), arises ex contractu, and is only prescribed by ten years. .Brigham vs. Bussy, 26 An. 676 ; Rev. C. O. Art. 3394; C. rej. 2 dec. 1816, Marietta. See remarks of Laurent on Art. 2197, Code Napoleon. Troplong, Priviléges et Hypothóques, Tome 4, Nos. 1000,1001,1002,1003, p. 352 etseq.; Locró, La Lógislation Civile, Tome 16, p. 480; Bassompiere contre Lamarié, 30 Juin,1810. Journal du Palais.
    Second — A Recorder who undertakes to perform an official duty for an individual upon payment of a fixed fee, incurs a conventional obligation like that of a negotiorum gestor. R. C. C. 2295; 1756. His obligation was a civil one, created by tbe operation of law (R. C. C. 1760), and he thereby assumed all the responsibility resulting from an express agency. The damages, in such a case, are demandable under the articles of the Code, relatingto the inexecution of contracts (Rev. C. C. 1930), whether the violation be active or passive. Rev. C. C. Art. 1931 et seq.

    Third — The duties devolving upon Recording Officers arc to the individuals exclusively who have occasion for their official services. Cooley on Torts, p. 383 et seq. Sheiman & Red-field on Negligence, § 286. Recording Officers aregpublic agents, responsible to those who employ them, “ for the damages that may result from the non-performance of their duty ” (Rev. C. C. Art. 3002), and “ also for their fault or neglect.” Rev. C. C. Art. 3003.

      Fourth — Prescription commences to run against an action to recover damages in such cases only from the date at which the cause of action arose and the injury was sustained. Like the action of an evicted vendee against his vendor, it arises at the time the eviction occurs and resembles an action in. warranty. “ L’action en garantió contra un conservateur des hypotliéques a raison de nullité d’une inscription provenant de son fait, peut étre exercée aprés dix ans de la date de l’inscripfcion.” S. V. 17, 1, 3i7; C. N. 5, 1, 255; D. A. 9, 461.
    Fifth — It was the Recorder’s duty, under the Code of 1825, and at the time the erroneous inscription in this case was made to register the plaintiff’s marriage contract in the register of mortgages (Code of 1825, Art. 3351), and he was then as he is now, “ answerable for tho injury resulting from omitting to properly record such acts.” Code of 1825, Art. 3357.
    ■Sixth — The cancellation of the Recorder’s official bond only releases his sureties, but does not affect his liability. '22 An. 29.
    C. jE. Schmidt for Defendants and Appellees:
    First — The plaintiff’s action against the heirs of Pierre Landreaux, who was Recorder of Mortgages for the parish of Orleans in 1835, for damages incurred through alleged failure to record in that year in the proper book in his office the plaintiff’s marriage contract, is not an action ex contractu,, but one ex delicto, and is prescribed by one 3 ear. O. C. 3536 (3501); 6N. S. 668; ib. 691, ib. 710; 15 An. 418.
    Second — Even if the prescription only ran from the date of the decision of this Court in May, 1874, (26 An. 534), or from the date of the payment of the proceeds of the property of plaintiff’s husband to his other creditors C. C. 3537 (3502), on the 22d June, 1874; still, the prescription had been acquired before the institution of this suit, which was only filed October 15th, 1877.
    Third — No reference should strictly be made to a former suit brought by the plaintiff (No. 6444 of this Court — decided on a point not presented by either party, 29 An. 363), hut if it should be thought that in fairness to the plaintiff, allusion should be made to it, then, we will say, that the former suit was only brought in July, 1875 — after the prescription of one year had been acquired, as conceded at page 4 of plaintiff’s original briei in that case.
    Fourth — It is admitted by the counsel for the plaintiff at pp. 8 and 9 of the printed brief annexed to the transcript, that her marriage contract containing a constitution of dowry, had to he, and was properly recorded in tho Book of Donations, C. O. of 1825, Art. 1541.
    Fifth — Under the same Code her mortgage for her dotal rights existed without registry. Art. 3298. ,
    ■Sixth — If she deemed it useful or proper to have an inscription made of the legal mortgage, she was, by law, authorized to demand it, and should have seen this done in 1835. C. C. 3304 (now 3332).
    Seventh — The registry of the wife’s legal mortgage under the law in force in 1835 was not intended for her protection, but for that of her husband’s creditors.
    Eighth — The change in the law, made thirty-four years afterwards, viz: in 1869, and granting a delay within which to make the registry of all legal mortgages, could not have had the effect of imposing a liability on an officer, whose term of office had long since expired, and who. under the laws in force while he continued in office, had incurred no responsibility to the plaintiff.
    Ninth — The plaintiff has only herself to blame for the neglect to avail herself of the delay allowed her by the act of 1869, within which to have the proper mortgage inscription made for her own security.
   The opinion of the Court was delivered by

Levy, J.

This action is brought by Mrs. Martin, a married woman, against the heirs of Pierre Landreaux, to recover the sum of $6762 25, the amount alleged to be due her by her husband and which she has lost, owing to the negligence and fault of the said Pierre Landreaux, as Recorder of Mortgages, to register or inscribe in the proper book of mortgages, the marriage contract between herself and husband, John Dawson, and by such negligence and failure other creditors have exhausted the property of her said husband to her prejudice and loss, by reason of the non-recordation of said marriage contract in the book prescribed by law.

The contract was entered into on the 5th of March, 1885, and was recorded on the same day in the Book of Donations, in the office of Recorder of Mortgages for the parish and city of New Orleans. The said Pierre Landreaux (now deceased) was at that time holding the office of Recorder of Mortgages.

It appears that in 1872 certain judgment creditors of the husband, Dawson, seized his property, and plaintiff, who had also sued him, obtained a judgment for $6762 25, with wife’s privilege and mortgage, and seized under execution the same property which had been previously seized by the other judgment creditors. On oppositions the conflict of seizures and privileges was decided against Mrs. Dawson and in favor of the first seizing creditors, who took all the proceeds of the sales, the amount of which exceeded Mrs. Dawson’s judgment. The decision of the Supreme Court, in 26 An. 534, was to the effect that the registry of the marriage contract, made by the Recorder in the donation book, was erroneous and without effect, and did not operate as a mortgage on the husband’s property. In that case the Court held, that the “ wife’s mortgage as to her husband’s property, existed without the registry, but when the system of this class of mortgages was changed, registry became necessary, and some of the modes prescribed for the registry of the various kinds of mortgages, was essential.” It was further held, that the object of Article 1541, Code of 1825, (which was in force when the marriage contract was executed and recorded, viz: in 1835) “was not to give notice of the wife’s mortgage upon her husband’s property for the protection of her dotal or other rights, but to operate as notice of the property donated, its status and the inability of the donor, probably, or his creditors to, in any manner, affect said property. It relates only to the property embraced in the act of donation, its title and character.”

The existence and effect of the wife’s mortgage upon the property of her husband, at the time of the registration of the marriage contract in the Book of Donations, were not dependent upon any registry. Being a constitution of dowry, the inscription in the Book of Donations operated as a notice of the legal mortgage with which it was affected, and, at that time, its registry in the Book of Mortgages would have accomplished, under the law in force, nothing more than was done by its registry as actually made in the Book of Donations. Long before the necessity for recordation in the mortgage book arose, to cause the contract to operate as a mortgage, Pierre Landreaux had ceased to fill the office of recorder. There is no evidence in the record to show any demand upon him to register the instrument otherwise than he had already done; no legal benefit would have accrued to the plaintiff by such registry during his term of office; and if there was loss resulting from any such failure to register, we are at a loss to perceive on what principle, applicable to the state of facts herein, such loss should be borne by the defendants representing Landreaux, the Recorder. It is asking too much to require him to have foreseen future legislation, and he might well ask why the plaintiff herself did not have the registry made prior to the time fixed by the Constitution of 1868, in order to keep alive her privilege and mortgage theretofore accorded by law.

This view of the case disposes of it, and to our minds sustains the judgment rendered in the lower court. -

The judgment appealed from is, therefore, affirmed with costs.


text:
    No. 8238.
    The State of Louisiana vs. William M. Fulford.
    Copy of indictment and list of jurors have to "be served on the accused two days before trial butnot before arraignment. Previous Decisions affirmed.
    The granting of a continuance is within the legal discretion of the Court a qua, with which this Court will not interfere without manifest cause.
    So of the refusing of a new trial to the accused.
    Arson at Common law and in this State.
    It is excluded from the prescription of one year.
    Accused is, uuder no law, entitled to a Commission to tate the testimony of witnesses residing in another State.
    APPEAL from the Fourth Judicial District Court, parish of Jackson, Bridger, J.

      J. G. Egan, Attorney General, for the State, Appellee:
    First — An error in the minutes of the court cannot serve to contradict the indictment on whioh the accused was tried.
    Second — The objection to the formation of the jury must he made on the first day of the term of court. 8 R. 514; See. 5, Act No. 32 of 1840, p. 28.
    Third — The court will presume that the grand jury were sworn according to law, even if the record does not show the fact. Minors Rep. 62 and 138.
    Fourth — All motions and dilatory tactics resorted toby the accused are properly overruled when, in the discretion of the court, they are only urged for the purpose of delay.
    Fifth — No statute of this State authorizes the taking of testimony hy commission in criminal cases; such practice is unknown to the common law.
    Sixth — A motion for continuance on account of absent witnesses is properly overruled when the accused does not show proper diligence in securing their attendance.

      Seventh — The crime of arson is imprescriptible. The burning of all houses and buildings are arsons. Secs. 841, 842 and 843 B. S.; 12 An. 382.
    Eighth — In reference to prescriptible crimes, prescription does not begin to run until a public officer having power to direct investigation or prosecution has knowledge of who the perpetrator of the crime is.
    Ninth — Where the judge omits something which he should have charged, and the accused has not been injured thereby, he, the accused, cannot complain. •
    Tenth — The confession by accused is admissible in evidence although he may have been intoxicated whilst making it. 25 Ala. £0.
    Eleventh — The jury is the sole judge of the evidence adduced on the trial of the case.

      G. L. Gaslcins and. J. B. Holstead for Defendant and Appellant:
    The accused in a criminal case has a right to take the testimony oí witnesses residing out of the State by commission, and the case should be continued to allow him to procure the evidence, when it appears that the testimony can be had within a reasonable time. Tr. p. 16 to 22, and Bill of Exception 22 and 23, and 28 to 31; State vs. Hornsby, 8 It. 562.
    The District Attorney in a criminal case cannot say to his witnesses, “I can’t ask leading questions, such as did she cry,” &c., and then, when objection is made, withdraw the question and ask, “ What did she do ? ” The answer was fully suggested to the witness, and it was error to permit the witness to answer. Tr. p, 75.
    The defendant had a right to lead the witness for the State. This right was improperly denied by the Court. Tr. 81 to 83.
    The court a qua improperly refused to permit the defendant to prove the contradictory statements of the witness Bussell for the purpose of impeaching him after a sufficient basis had been laid. Tr. p. 84.
    The court a qua improperly refused to charge the jury that if the proof of an alibi was sufficient to create a reasonable doubt as to the guilt of the accused he was entitled to the benefit of that doubt. Tr. 88.
    The court improperly refused to charge the jury as to the extent to which the corpus delicti must be proven before a confession would sustain a conviction. Tr. p. 92.
    The court improperly refused to charge the jury in regard to the weight to which an insincere confession is entitled under the law. Tr. p. 94.
    The court improperly refused to charge the jury thatproof of enmity of the witness for the State against the accused, and proof of pecuniary interest in the result of the trial was a legal means of impeaching a witness. Tr. 96.
    The defendant was forced to a trial at the same term at which the bill was found, and without sufficient time to prepare his defense, and without being permitted to obtain what proof he could to support his innocence. The court a qua was requested to deliver a written charge two days before the argument of the case was closed, and then did not charge the jury until after two o’clock the day after the argument of the case was closed. At the same time he gave the jury to understand that the delay was caused by the accused. This delay and the comment of the court, in his charge, upon the argument of the counsel for the accused, and the manner in which, at the close of his charge, he cautioned the jury to guard the interest of society, and the fact that the points in the charge most favorable to the accused were given first, and the points against Mm last, all tended to prejudice the jury against the accused and to encourage a convictiou. The whole record in this case shows that the accused did not have a fair, legal and impartial trial. The motion for a new trial ought to have been sustained. Tr. 50 to 58.
    The motion in arrest of judgment was improperly overruled. The crime charged is clearly prescribed. Act 120 of 1855; Act 1^1 of 1855; Acts 1858, p. 212; B. S. 986, 841, S4t, 843; Bishop’s Crim. Law, 6th ed. vol. 3, secs. 9 and 11; 3d G-reenleaf, 13th ed. sec. 52; Bussell on Crimes, p. 551 (old 552).
   The opinion of the Court was delivered by

Levy, J.

The accused, William M. Fulford, was indicted for the. crime of arson, tried, convicted and sentenced to imprisonment at hard labor in the State penitentiary for the period of ten years. From this sentence and judgment he has appealed. The record presents an array of multitudinous objections and bills of exception, all of which are elaborately, ably and ingeniously argued by counsel of accused, in their brief, which while commanding admiration for the zeal, ingenuity and ability displayed, fail to convince us that there is such error to the prejudice of their client as would justify us in setting aside the verdict and reversing the judgment appealed from.

We shall pass upon the bills of exception in the order in which they were taken.

1st. As .to failure to serve copy of indictment and list of jury two days before arraignment.. The law does not require this service to be made two days before arraignment. It is required to be made two days before trial, and this appears from the record to have been done. State vs. Kane, 32 An. 999; 7 An. 567.

2d. As to fixing the cáse for trial before passing upon the application for change of venue. The reasons stated by the court show to our satisfaction that this action of the court did not operate to the injury of the accused, nor it being stated at the time that the fixing for trial was without prejudice to the rights of accused to file his application for change of venue or any other pleadings desired by him.

3d. As to overruling the motion for change of venue, and application for a commission to take the testimony of witnesses under commission, there was no evidence introduced by the defense on the motion tor change of venue, there being thus a virtual abandonment, and the want of diligence and manifest intention to d.elay the trial, which are given as his reasons for refusal by the judge a quo, justified that refusal.

4th. As to the denial of the continuance. The court a qua in the exercise of sound discretion refused the continuance. We will not interfere wil h this ruling, made in virtue of the discretion with which the court was vested, and the reasons for the ruling fully justify the action taken.

5th, 6th, 7th. The question propounded by the District Attorney, relative to the arrest of the witness Russell, was proper as being in rebuttal of the attempt on the part of the defense to show that said witness was actuated by malice in making the affidavit against accused.

8th. There was not sufficient reason,to sustain the objection to the question of the District Attorney to the witness Sherrard.. The preface to the question did not cause the question itself to assume the character of an objectionable or leading one.

9th. This exception has no merit. It was relevant to the offense charged, and notwithstanding the lapse of time between the conversation of witness and accused, and the burning, was competent to show a pre-existing intent and malicious design in connection with the offense with which accused is charged.

10th. This exception is also without merit. It was competent for the State to ask the witness Russell why he made the affidavit for the arrest of the prisoner, in rebuttal of the attempt of the defense to show that witness was actuated by malice therein. *

11th. The question propounded to the witness Jones in regard to conversations and remarks made by one Murphy was properly overruled, as tending to introduce hearsay and eliciting the mere opinion of witness as to the motives of another person.

12th. The reasons given by the District Judge for sustaining the objection of the District Attorney to the question propounded to the witness Russell, viz: that a sufficient basis had not been laid for the impeachment of the testimony of said witness, who had stated he could not give the substance of his conversation with one Burroughs, justified the judge in his ruling.

13th. The special charge asked for by prisoner’s counsel has been substantially given by the judge in his written charge of the jury to the effect that where the defense seeks to prove an alibi, the rule in regard to a reasonable doubt in regard thereto is applicable alike to such proof as to that introduced by the State.

14th. The reasons of the judge, as given in this bill, for his ruling, are conclusive. In his written charge he had substantially charged, as desired in the request for the special charge.

15th. The court correctly charged in regard to weight or consideration to be givep to the law of the case as charged by the judge, and the charge in that connection is fully sustained by the decision of the Supreme Court in the case of State vs. Johnston, 30 An. 904.

16th. The special charge asked for and referred to in this bill had been substantially given in the written charge.

17th. The same reasons apply to this as to the preceding bill (16th).

18th. So, also, as to this bill.

19th. The judge a quo in overruling the motion for a new trial exercised the discretionary power with which he is invested, and his reasons embodied in this bill, convince us that no grounds exist to justify us in setting aside his ruling on the motion.

The motion in arrest of judgment was urged on these grounds:

1st. That the offense charged is not arson, and therefore is prescribed by one year.

The crime of arson is not denounced by the statutes of this State, eo nomine. The definition of this crime at common law is, “ the wilful and malicious burning the house of another.” Both in England and in this country by statutory enactments this offense has been enlarged and comprises several grades and descriptions, just as the offense of homicide contains distinctive grades. In this State, we consider, that, under the generic term of arson, are included the offenses prescribed in sections 841, 842 and 843, each of which is but one class of arson, and to which different measures of punishment are attached. The commission of any one of the distinctive offenses enumerated in these sections constitutes the crime of arson. Section 986 excludes, among other offenses, that of arson, from the prescription of one year, which- is applicable to all others than those specially excepted in this section.

2d. That the bill of indictment is invalid because “it is not endorsed by the foreman of the grand jury in his official capacity, but is simply endorsed John W. Jones, foreman.” This endorsement was sufficient. This question was decided in the case of State vs. Folke, 2 An. 744. See, also, 12 An. 382, 743.

3d. That the bill of indictment does not allege who was in possession of or had control of the building alleged to have been burned, and does not state was kind of an incorporation the parish of Jackson is, how or by whom it was represented or is now represented. The allegations in the bill as to the ownership of the property, its character and description are sufficient. The parish of Jackson is a political corporation created by the State, the existence and “ kind ” of which is defined by law and presumed to be fully known.

4th. That the bill does not show that the grand jury had been charged. We do not think that the omission in the bill itself of the statement that the grand jury had been sworn is fatal. The minutes of the court, as copied in the record, explicitly set forth. that the grand jury had been “ duly empanneled, sworn and charged.”

In the assignment of errors, in addition to the objections contained in the nineteen bills of exception hereinbefore passed upon, the following are urged:

That “the record shows that a foreman of the grand jury was selected but does not show that he was sworn.” We think the entry on the minutos, which sets forth the selection of the foreman and the drawing of the other grand jurors, and that they were duly empanneled, sworn and charged, unmistakeably shows that the whole grand jury was sworn, and the bill of indictment itself alleges that the grand jury, of which the foreman was a- member, had been “ duly sworn.”

It is assigned as error that the judge a quo refused to issue commissions to take the testimony of certain witnesses, on behalf of defendant, residing in the State of Mississippi. In the brief of counsel the decision in the case of State vs. Hornsby, 8 R. 554, is relied upon in support of his application. In that case it was held: “that, the courts of criminal jurisdiction not being vested with power beyond a certain prescribed and defined limit, compulsory process cannot issue beyond said limit; that the accused has an undoubted right, under the constitution, to have his witnesses heard, whether they be found within or beyond said limits; that the provision of the constitution allowing the accused to be confronted with the witnesses against him, is a personal privilege which he may waive; that being entitled to a speedy trial and to compulsory process to enforce the attendance of his witnesses, this latter right can only be exercised when the witness resides or is found within the district; that the Legislature having failed to provide means to coerce the personal attendance of the witnesses, it follows as a necessary corollary, that recourse must be had to the ordinary and only remaining method of procuring testimony, viz., by commission.”

This clearly had reference to the testimony of witnesses residing within the State and beyond the jurisdictional limits of the court before which the trial was had. It is based upon the reason that, under the constitution then existing the accused then, as now, had the fight to compulsory process to enforce the attendance of his witnesses, and then the Legislature having failed to pass proper laws to carry out the provision of the constitution, the court ex proprio moiu, recognized, for the reasons given in the opinion, the right to issue commissions to take the depositions of witnesses within the State, but beyond reach, therein, of its process. This right was recognized in view of the absence of means to enforce compulsorily the attendance of such witnesses.

The State can only provide for compulsory process within its own limits and jurisdiction. She is powerless to execute or to cause to be executed, such process in a foreign country, or even in another State. Under the laws, in force on the trial of this ease, compulsory process, in certain criminal cases, of which this is one, may be executed throughout the State, and under the decision cited and the reasoning therein depositions of witnesses absent, but within the State, would not be admissible. Any constitutional or legislative provisions, enforcing the attendance of witnesses outside of the State by compulsory process, to be executed outside of the State, would be vain and inoperative, and we think with the District Judge, that there is no law authorizing the issuance of the commission applied for or the admissibility of evidence taken thereunder. No such right exists under statutory law, and, we think, cannot be derived from common law. In Alabama it has been held that, “ at common law a commission to take the deposition of a non-resident witness cannot issue at the instance of the defendant in a criminal case.’’ Ex parte Haskins, 6 Ala. 63.

We do not think there was error in the verdict, sentence and judgment of the lower court.

The judgment of the lower court is, therefore, affirmed with costs.


author: Todd, J.

text:
    No. 8217.
    Heirs of T. A. Compton vs. Friend L. Maxwell. The Same vs. Hugh B. Lucas.
    (Consolidated.)
    A judgment of separation of property and dissolution of the Community, rendered after citation to tho husband, duly published and followed by an execution, and subsequently and uniformly recognized by both parties thereto, in many acts and proceedings, cannot he set aside at the suit of the heirs of the husband, upon uncertain and verbal evidence.
    APPEAL from the Eighth Judicial District Court, parish of Madison: Deloney, J.

      J. W. Montgomery and T. H. Crawford for Plaintiff's and Appellants.
    First — A judgment of separation between the wife and husband must he promptly settled so far as the husband’s estate is sufficient for the purpose of payment, or it must be followed by a tona fide and uninterrupted suit to obtain payment: otherwise it becomes an absolute nullity. C. C. 2428; 28 An. 346 ; lb. 572; 4 An. 513 ; 27 An. 403; 2 An. 149; 1 An. 308; 1 E. 431; 3 E. 328.
    Second — Either party can set up the nullity when it becomes his or her interest; and although the judgment may have been founded on a groundless pretense, and obtained through fraud, if it be not executed the community is not affected by it. Vide same authorities.

      Farrar & Speneer for Defendants and Appellees:
    First — To recover in a petitory action, plaintiffs must show title, and make it out satisfactorily in all points, both as to title and identity, and cannot succeed, except on the strength of his own title, and cannot avail himself of the weakness of defendant’s. 22 An. 57; 15 An. 410; 10 An. 460.
    Second — Heirs at law can acquire no greater rights from their ancestor, under whom they claim, than he possessed himself, and can take no advantage of frauds perpetrated bv him. Their rights are measured by his rights. C. C. 945; 13 An. 193; 9 An. 242; 5 An. 367
    Third — As between the parties and their hoirs, no evidence of simulation is admissible, except a counter-letter. And said countei-letter is of no effect against third persons, unless recorded prior to the acquisition of their rights. Hebert vs. Lige, 29 An. p. 511; 4 La. 167 ; 3 An. 154 ; 4 An. 489 ; 9 La. 566 ; 3 E. 457.
    Fourth — The judgment between Mrs. Eliza Compton and her husband, Thos. A. Compton, be_ came res judicata twelve months after its rendition. An action to annul it is barred by the prescription of twelve months. C. P. Arts. 613, 611.
    Fifth — The nullity of that judgment cannot be demanded collaterally by either the parties or their heirs.
   The opinion of the Court was delivered by

Todd, J.

These two suits were consolidated and tried together.

The plaintiffs, as heirs at law of Thomas A. Compton, deceased, claim to be owners by inheritance of the lands described in their petitions. These lands consist in part of the Mound plantation in the parish of Madison.

The record establishes the following facts bearing on this controversy:

The Mound plantation belonged originally to Jesse Harper, and contained about 682 64-100 acres. Harper died, and the land was sold at succession sale on the 22d April, 1839. Thomas A. Compton, the ancestor of plaintiffs, became the purchaser on terms of credit.

On the 8th of February, 1841, sheriff T. B. Scott sold this property under an order of seizure and sale, in a proceeding styled David Stanbrough, Curator of the Succession of Jesse Harper vs. Thomas A. Compton, when Dugall McCall became the purchaser.

On the 18th January, 1842, McCall sold this land to Felix Compton, the latter assuming the payment of three promissory notes for $1L,433, given by McCall to the curator of the succession of Jesse Harper for the purchase price. On the 7th of January, 1847, Felix Compton sold the same land to R. C. Stockton.

In 1845 or 1846, Thomas A. Compton removed with his family to New Orleans, and remained there several years.

On the 22d January, 1847, Mrs. Eliza Compton instituted a suit for separation of property against her husband, Thomas A. Compton, in the Fourth District Court for the parish of Orleans, and on the 15th day of June, 1847, judgment was rendered in her favor for $2400, dissolving the community of acquets and gains, and giving her the administration .of her paraphernal property. On the 14th July, 1847, execution issued on this judgment and was returned nulla bona.

On the 17th November, 1852, sheriff Crandell, acting under two writs of ft. fa. issued from the Tenth District Court of the parish of Madison, in two proceedings styled David Stanbrough, curator of succession of Jesse Harper, vs. Felix Compton (judgment obtened on three notes given by McCall and assumed by Felix Compton for purchase price of said property), and Josiah Stanbrough vs. Felix Compton, seized and sold this property, when Mrs. Eliza Compton, wife of Thomas A. Compton, by her agent and attorney, W. S. Parham, became the purchaser, and executed her twelve-months’ bond for the purchase price, with W. S. Parham as her security, the sale being made on terms of credit. R. C. Stockton, having qualified as curator of the succession of Jesse Harper after the death of David Stanbrough. receipted in full to Mrs. Eliza Oompton for the payment of the twelve-months’ bond on the 9th February, 1856.

Thomas A. Compton died in 1861, in Madison parish. His succession was never opened.

In 1866, on the 28th March, Mrs. Eliza Oompton gave a mortgage on this property, and including some lands entered and purchased by herself, and also some swamp land entered by Thomas A. Compton, in favor of Daniels & Plumer, for $13,333 33.

These mortgagees instituted suit in the Third District Court for the parish of Orleans against Mrs. Compton, and obtained judgment, with full recognition of mortgage, etc.

Execution was issued, and the sheriff of Madison parish, to whom it was directed, acting thereunder, seized and sold all the property described ip the said mortgage on the 6th June, 1868, when Adam Daniels, one of the plaintiffs in execution, became the purchaser.

On the 31st January, 1871, for and in consideration of $10,000 in cash paid her, Mrs. Eliza Oompton ratified and confirmed the sheriff’s sale of 6th June, 1868.

Adam Daniels sold the property to F. L. Maxwell & Bro. H. B. Lucas purchased a portion from Maxwell & Bro., and F. L. Maxwell purchased his brother’s interest.

In their defense to these actions, the defendants set up their title to the lands in question, except certain portions thereof designated as swamp lands, which they admitted were entered by Thomas A. Compton, and belonged to him at his death. They alleged that the residue was their property, acquired by them from Adam Daniels, who acquired at sheriff’s sale of the 6th of June, 1868, made under the foreclosure of the mortgage given by Mrs. Eliza Compton to Daniels & Plumer in 1866.

They averred that Mrs. Compton acquired the property at sheriff’s sale in November, 1852, and that at that time she was separate in property from her husband, T. A. Compton, by virtue of a judgment rendered in the Fourth District Court of New Orleans on the 15th of June, 1847, and the proceedings under it.

There was judgment in favor of the defendants for all the lands sued for, save those they disclaimed title to in their answer, and condemning plaintiffs to pay costs of suit, from which judgment plaintiffs have taken this appeal.

The record discloses that Thomas A. Compton, the ancestor of the plaintiffs, through whom they claim, was divested of the ownership of the Mound plantation on the 8th of February, 1841, by a forced sale under an order of seizure and sale in a proceeding entitled David Stanbrough, Curator of the succession of Jesse Harper, vs. Thomas A. Compton; and there is no evidence in the record showing that he ever afterwards acquired this property in his own name. The plaintiffs, however, contend that it was re-acquired by him or by the community of which he was the head, it is uncertain which, by virtue of the purchase made by his wife, Mrs. Eliza Compton, on 17th of November, 1852, when the property was sold under the proceeding against Eelix Compton, instituted by the curator of Harper’s succession above referred to; and they deny that the community between Thomas A. Compton and his wife had been dissolved at the date of said acquisition.

We find in the transcript the entire record of a suit instituted in the name of Mrs. Compton against her husband in the Fourth District Court of New Orleans in 1847, in which judgment was rendered in her favor on a moneyed demand, and decreeing the dissolution of the community. This judgment was rendered after citation to the husband, was duly published, and followed by an execution, on which there was a return of nulla bona. The separation of property purporting to be established by this judgment, was subsequently and uniformly recognized by both parties thereto by many acts and proceedings. This recognition is shown by the purchase of property in the name of the wife, including the property in controversy, in some of which purchases the husband' joined to authorize her; by powers of attorney executed by her to her husband empowering him to represent her in her business affairs, which during his life were conducted in her name; by her mortgaging this-property after the death of her husband,-as her separate property, and when sold as her property, receiving ten thousand dollars in consideration of her ratifying the sale. Besides, we have the testimony of the attorney who obtained the judgment of separation, and who swears thair he represented her in that proceeding, and who moreover states that the husband was insolvent then and remained so till his death, whichi occurred in 1861.

Surely all these facts must, to the legal mind, far outweigh the uncertain evidence afforded by the parol testimony of the mother of the-plaintiffs and one of the plaintiffs themselves, contradictory of that derived from these acts and judicial proceedings, and by which.such solemn acts and proceedings of the parties thereto are sought to be overthrown. Under our settled jurisprudence, the effect of authentic-acts and judicial proceedings cannot be so easily.impaired, nor titles to real estate resulting therefrom or evidenced thereby so easily destroyed.

We do not deem it necessary to go minutely into all this testimony, but deem it sufficient to announce our conclusions respecting it.

In the face of these acts and proceedings it would hardly be contended that Thomas A. Compton, if alive, could be listened to in asserting a claim to this property. His heirs claiming through him stand in-no better condition.

We have carefully and patiently examined the pleadings and evidence in the case, and find no error in the judgment save in one respect, and that is merely a matter of costs. Though judgment was rendered in favor of the plaintiffs for part of the lands claimed, they were condemned to pay all the costs of the lower court. This must be corrected. They should pay the costs incurred in the District Court prior to the disclaimer of title to part of the lands and the tender of the same.

It is, therefore, ordered, adjudged and decreed that the judgments appealed from be affirmed, the costs of the District Court up to the filing of the answers to be paid by the defendants, and the remaining costs of the District Court and of this appeal to be paid by the plaintiffs.