author: White, J. DeBlanc, J. Marr, J.

text:
    No. 7783.
    Allen, Nugent & Co. vs. A. Carruth.
    One who, in consenting a mortgage, has specially waived the homestead, cannot quoad the mortgaged property, claim the homestead, overruling Hardin vs. Cerf, 29 A. 333.
    A PPEAL from the Pifth Judicial District Court, parish of East Baton Rouge. McVea, J.
    C. D. Pavrot for plaintiffs and appellants :
    A person who, in obtaining a loan of money, mortgages his property to secure tne payment of the debt, and renounces his right of homestead upon the same property, is estopped from afterward claiming said homestead. Dissenting opinion of Chief Justice Manning, in Hardin vs. Wolf & Cerf, 29 An. 333 ; 29 An. 64.
    J. & Gr. W. Burgess and McG-loin & Nixon for defendant and appellee: 'The law creating the right of homestead is based upon reasons of public policy, and the exemption cannot be waived in any case.
    The case at bar is not one where there is a special waiver as to a particular piece of property ; but the waiver is a general one as to all the property of defendant.
    Special or general, such a waiver is illegal, and does not estop defendant from claiming his homestead. C. C. art. 12; Holman vs. Johnson, Coup. 343 ; Chitty on Con. 653 ; 29 An. 333 ; 29 An. 330; 22 N. Y. 244; 49 Tenn. -387; 74 N. C. 350 ; 10 How. Bract. Rep. 282 ; 22 N. Y. 250.
   The opinion of the court was delivered by

White, J.

'A majority of this court, two dissenting, held in Hardin vs. Wolf, 29 A. 333, that the benefits of the homestead act of 1865 could not,, as a matter of public policy, be waived ; and that hence, a debtor who in consenting a mortgage had expressly waived the benefits of the homestead, could recover the homestead as against the mortgage creditor. This case presents the identical question, and we are urged to re-examine it. The opinion in Hardin vs. Wolf was prepared by one now, alas! lending no longer the aid of his mature judgment and ripe scholarship to the discharge of the grave and solemn duties this court is called upon to perform. The opinion gives evidence of that care and research which-was the leading feature of Judge Egan’s mind. The reverence we have' for his memory, the knowledge of how much weight his opinions carried' with them, have caused us to hesitate, to doubt the wisdom of reexamining a question concluded by his voice, when the reconsideration-was to be had without the assistance of his reason and learning. After much reflection, however, we have concluded that as one decree rendered by a divided court was not the proper subject for the rule of stare decisis, it was a duty imposed on us to decide the issue upon our convictions, and in so doing we would best do reverence to the opinions of one who made the performance of duty the aim of his judicial career. Approaching, then, the question as a new one, we have patiently gone over the grounds urged in favor of the nullity of the waiver, and have been unable to give our adhesion to them. The statute certainly contains no limitation on the power of the owner of the homestead to alienate or encumber it as he please, and if in his hands it is subject to all the elements of perfect ownership, usus, fructus, and ahusus, we cannot deprive the-owner of any of the rights flowing from such dominion, one of which is-the right of alienation, which embraced a fortiori the right to renounce-any claim to the thing alienated or encumbered. We think that the declaration that the owner who has the statutory power of alienation cannot, in encumbering his property, waive quoad the property encumbered his right to claim a homestead, would be on our part judicial legislation by which we would deprive the owner of his right of perfect ownership, and write in the statute by interpretation a restriction on the power of alienation. The conclusion reached by this court in Hardin vs. Wolf was founded, as we take it, on three propositions :

First. That in our sister States homestead laws have by the prevailing opinion been considered as importing a denial of the power of a debtor to waive his claim to avail himself of their benefits.
Second. That motives of public policy point to the necessity of construing the homestead law in such a manner, as to imply an inhibition on the power to waive.
Third. That while the statute in terms does not restrict the right ■of the owner, yet such restriction results by necessary, or at all events, reasonable implication from the context of the statute.

To none of these propositions can we give our assent.

1. Whatever may be the opinions in other States, they ought not to control or guide us in enforcing or interpreting our own statute, unless it were made manifest that the statutes of other States were identical with our own, which is not the case. Even pretermitting this view, an examination of the authorities relied on in Hardin vs. Wolf, we think, will make it clear that they are inapplicable to the question now before us. Without reviewing them in detail, we think they all either ■depend on the peculiar provisions of the statute law which they interpret, or if they formulate a doctrine, simply teach that a general renunciation of the right to claim the benefit of homestead or exemption laws •cannot be enforced. Upon even this proposition there is division of .-authority; taking it, however, as sound doctrine, it does not meet the instant issue, which is not whether a general renunciation of the right ■to claim the benefit of homestead or exemption laws is binding, but -whether a special renunciation as to particular property can be enforced. 'The difference between the two cases is self-evident; the one being a •divestiture on the part of the debtor of his right to claim the benefits •of the laws of the land as to his present and future property, the other being simply the exercise of his power of ownership over the particular •property the subject of a particular contract. In fact, we think a careful scrutiny of the cases in the books will make it clear that the fundamental distinction is carefully observed between the right of an individual when not inhibited by positive law to do as he pleases with his own, and his want of power to make, as to all future property, a law of his own different from and in violation of general laws applicable to ■ all others. We have found no case teaching that where one is the owner of property, and has the absolute and perfect ownership of it, he cannot ■do with it as he pleases, within the limits of prohibitory laws.

2. With the motives of public policy we have nothing to do, in the •absence of all restraint on the power of the owner in the terms of .the law. If, however, we were at liberty through our views of public policy to go beyond the terms of the statute, we would hold that public morality would best be subserved by enforcing the performance of obligations legally entered into ; that the interest of society and of individu- . als would best be guarded by discountenancing all attempts to procure ■ credit by the renunciation of rights of property, and, after reaping the benefits of the credit, seek to frustrate payment by an attempted exer-cise of the rights renounced. The foundation of public policy is the principle of common honesty. True, the motive of the law of 1865 may .■■have been to secure the family, and thus save society from, pauperism, "'but this purpose, we think, also dictated the absence of the restriction -on the power of the head of the family to dispose of all his property as he pleased, in order to enable him to use all his resources for his family’s 'benefit. To hold that when he had so done, because his contract was in ■the form of a mortgage with express waiver, instead of a sale, would, in ■ our view, be sacrificing the substance for the shadow, would be holding that the complete did not include the partial power of alienation.

3. The context of the law it is said makes it evident that the benefit •of the homestead was intended for the family, and, therefore, as the benefit was intended for the family, the renunciation of the head of the family ought not to prevail. The fallacy lies in supposing the property to be that of the family ; but by the very terms of the statute the property must belong to the debtor; and if it did not, of course no question -could arise, for the execution only issues against the debtor and his property. Nor do these views conflict with Yan Wiekle’s case, 29 A. ■ 331, wherein it was held that the act of consenting a mortgage created no legal implication of waiver of homestead, which was predicated upon the theory that in the absence of express waiver the parties must have contracted with reference to the general law. Our conclusion is that the waiver in the act of mortgage frustrates the claim of homestead, quoad the property mortgaged.

It is therefore ordered that the judgment below be reversed in so far as it recognizes and enforces the claim for homestead ; that the claim ■to homestead quoad the property mortgaged be rejected; and that in all other respects the judgment below be affirmed. The costs of both •courts to be borne by the plaintiff in injunction.

Dissenting Opinion.

DeBlanc, J.

I adhere to the opinion overruled by my colleagues. 'That opinion is sustained by adjudications of the highest courts of •several of our States, and fully justified by the terms of the law.

The homestead is not granted to the debtor. Howsoever destitute he may be, he — if alone — is not entitled to and cannot claim it. It is ..granted to his family, to those dependent on him for support, and he •cannot — at his will and pleasure — waive and nullify a right conceded to them.

The homestead forms no part of the creditor’s pledge. The law ■ordains that — as the bed and clothes of the family — it shall be exempt from seizure and s&leunder execution, and this it ordained in the interest of the wife and children of the debtor, of those he has to support and shelter; and. if he can waive their right to the homestead, he can also waive the exemption which protects their clothes and their bed, their linen and their shoes.

To give a mortgage on the land and property subject to the homestead, is — in substance, if not in terms — to waive.it. It is to consent in advance and absolutely that, under specified circumstances, it shall be-seized and sold. We have — nevertheless—adhered to the decisions holding that the giving of a mortgage is not a waiver of the homestead.. To overrule those decisions and our own, what is invoked ? Less than a distinction, or — at most — a distinction which is not in the meaning, but in exclusively the syllables and sound of the words used to renounce the exemption.

One cannot always renounce even that which the law has established in his favor. He can only do so when his renunciation does not affect the rights of others ; and one — whether a husband or parent — cannot, legally, relinquish that which is expressly intended for the benefit of his family and the public good.

O. 0. art. 11,12, 1892 (1886J.

In the opinion read by Mr. Justice .Egan, a majority of this court held — not that a debtor could not sell the property which constitutes the-homestead — for, when he does, it is almost invariably for its full value and in the interest of his family ; but that, according to the imperative terms of the law, such property is exempt from seizure and sale under execution.

The homestead laws may be unwise, inexpedient: they may tend to affect and destroy private credit; but they — in no way — transgress any rule of morality. Their object is less to prevent the sale, than the sacrifice of the family’s home, and of that which is indispensable, not to their comfort, but to their existence. Those laws are published and promulgated, noted by, familiar to, and a part of the contract of those who — after their promulgation — consent to sell on credit; and if any one of the several exemptions granted in every State can be considered as dishonest, then they are all dishonest.

Marr, J.

I adhere to the views expressed in the opinion of the court and in my separate concurring opinion in Hardin vs. Wolf & Cerf, 29 An. 333; and I concur in the foregoing dissenting opinion of Mr. Justice DeBlano.

Rehearing refused.


source: Caselaw Access Project

author: Spencer, J.

license: Public Domain

text:
    No. 6288.
    Wm. S. Porter et al. vs. John M. Sandidge.
    'Where a debtor takes out a life policy payable to bis creditor, -who binds himself to pay over to the debtor’s heirs any excess collected on the policy over the sum due him, the creditor ■will not be heard to deny his obligation to pay over such excess collected by him.
    •Parol evidence is not admissible to prove that such debtor agreed with the creditor, that the debts of a third person should also be paid out of the proceeds of such policy.
    ‘Mere reference in a letter to a previous contract between parties, should not be taken as changing or abrogating any of its terms, unless that intent results clearly; but when a dispute arises as to the scope of a previous verbal agreement, such letter ought justly to have great weight, more especially when the reference is not merely casual, but constitutes the solo matter of the letter.
    'The action of the acceptor of a draft against the drawer, is one of indemnity and does not arise until the former has paid it.
    j^PPEAL from the Fifth District Court, parish of Orleans. Cullom,

    Wm. S. Benedict and Joseph P. Hornor for the plaintiffs and ap>'p ¿Hants:
    ¡First — When a debtor insures his life for the benefit of his creditor, and the premiums are paid by the creditor, or charged against the debtor, the creditor can collect the insurance policy, but he must pay the balance of such collection over and above the amount of his legal indebtedness due him to the debtor’s heirs. Bliss on Life Insurance, p. 505, sec. 324; May on Insurance, pp. 8 and 104; 1 Bigelow, 665 ; 3 Bigelow, 2, 98, 156, 255 ; Rawle vs. Life Ins. Co., 27 New York, 282.
    ‘•Second — There being no allegation of fraud or error in the answer, parol evidence cannot be received to contradict, vary, alter, or modify it. 12 An. 739. It is quoted in 1st Hen. p. 534, as follows : “ Where no ambiguity exists the document cannot be amended.” 16 Martin, 684 ; 6 An. 583 ; 11 An. 380.
    Ht cannot be modified. 5 An. 315.
    .All parol evidence is inadmissible. 4 An. 44. Nor can further sums be shown to have been paid. 3 Martin, 25 ; 6 Martin, 615.
    'Third — There is no written evidence in the record to show any agreement to pay interest at the rate of eight per cent, and therefore the interest cannot exceed five per cent. C. C. 1940, 2924 ; 14 An. 681.
    'Fourth — The defendant cannot charge as against the plaintiff commissions for advances and interest thereon, and also interest on the principal sum. 15 An. 459.
    Merrick, Race & Foster for the defendant and appellee:
    First — A contract once clearly established in accordance with law ha» the same binding force and effect whether it is by parol or in writing.. C. 0. 1945 (1940).
    Second — A letter is always open to examination. Parol proof is admissible to explain a receipt. 5 An. 406, 236 ; 9 R. 240.
    Third — In England, where trusts are easily raised and are often upheld' by implication, the law is settled somewhat differently from the' doctrine in the major part of the United States, and especially Louisiana, where trusts are prohibited by law and discountenanced by the courts. A New-York court said : “ But policies without interest upon lives are more pernicious and dangerous than any other-class of wager policies, because temptations to tamper with life are-more'mischievous than incitements to mere pecuniary risks.” Ruse-vs. Mutual Benefit Life Insurance Co., 23 N. Y. Rep. 526.
    This difference between the English law and the American law may be seen by comparing section 324, p. 505, of Bliss, on Life Insurance,, which shows the English law, and pp. 496, 497, section 317, which shows the American law. 1 Bigelow Ins. Rep. 665.
    Fourth — The policy of insurances only covered the indebtedness due to the creditor and the 'insurance company, was not bound for any thing beyond this amount, and Sandidge was not authorized to recover,, and could not recover, anything more from the company. Bliss on Life Ins., sec. 27, pp. 35, 497, 317; 3 Conn. 244; 7 U. S. Dig. 1st . series, p. 737, No. 1953 ; 10 An. 814 ; Phillips, 2 vol. No. 1755 ; Reynolds Life Ins. p. 54 ; 6 Gray, 396 ; 23 An. 317, 445 ; 26 An. 326.
    Fifth — There is no instance in the books to show that where a man has voluntarily paid eight per cent interest it could be recovered back.
   The opinion of the court was delivered by

Spencer, J.

Plaintiffs, as heirs of Jacob C. Porter, sue defendant for §>10,000, the amount alleged to have been collected by him, from the-Life Association of America, on a policy issued upon the life of Jacob C. Porter. The policy was taken out by Porter, and made payable to John M. Sandidge, in order to secure certain debts due the firm of John M. Sandidge & Co.

It seems that Sandidge & Co. were the factors of J. C. Porter individually, as also of the commercial firm of Porter & Bond, composed of J. C. Porter and James Bond, and also of Bond in'dividually. In May,. 1870, both Porter and Bond were in New Orleans, and being individually and as partners in arrears to Sandidge & Co., desiring further advances, it was arranged and agreed, that to secure Sandidge & Co. each of said debtors should take out a policy of insurance on his life in favor of Jno. M. Sandidge. This was done, Sandidge & Co. paying the cash part of the premiums on both policies, and charging up the amount so paid to the-respective parties. Annually thereafter Sandidge & Co. continued to pay these premiums and charge them to the parties for whom they paid. In the latter part of 1873 Porter died', and Sandidge collected the amount due on the policy, i. e. $10,000, less amount of premium notes due the association, and less a small discount and exchange, realizing in cash $8802 86.

At the time of Porter’s death, the accounts of Sandidge & Co. stood with the parties as follows:

Amount to debit of J. C. Porter.$4,341 28
Amount to debit of Porter & Bond. 1,687 01
Amount to debit of Bond. 2,253 14

Sandidge claims that under a verbal agreement made at the time of taking out the policies, he has the right to deduct from the amount he received all of the above accounts. Plaintiffs concede that the accounts against Porter and “ Porter & Bond,” with exception of certain items of interest and commissions, are properly chargeable, but deny liability for the personal debts of Bond. Sandidge also claims credit for one thousand dollars, being the amount of an order given by J. C. Porter to Walmsley & Co. on, and accepted by, him, to be paid out of any sum which he might collect on the policy, deduction being first made of what was due to Sandidge & Co. This last credit is also disputed by plaintiffs. So that this contest narrows itself down to the right of Sandidge to deduct the account against Bond and the order to Walmsley & Co. It is conceded that Sandidge has never paid the Walmsley order, but he is acceptor thereon.

Eirst — In regard to the individual debt of Bond. Defendant’s counsel contends, first, that J. C. Porter himself never had any interest or right in or under the policy, and therefore that his heirs have none. That it was issued for the sole benefit of Sandidge, who could alone collect it, and that only to the extent he was a creditor. We think that under the facts of this ease Sandidge is estopped from making this defense.

1st. His own testimony shows that the policy was to be taken out by Porter ; that Porter was obliged to pay the premiums ; that he did give notes for the credit portions thereof ; that all cash paid by Sandidge for premiums was charged in general account to Porter, who, from time to time, made remittances.

2d. His own testimony shows that he held the policy only as collateral, and that upon being paid he obligated himself to transfer the policy to Porter, or in the event of the collection of policy by him, to pay over the balance after deducting his own dues.

3d. Under his own signature in writing, as we shall hereafter see, he recognized Porter as the owner, subject to the pledge aforesaid. He accepted a draft to Walmsley & Oo. drawn by Porter against the policy, and in every way recognized his obligation to account for any sum received under the policy.

It is a matter immaterial, and not requiring our decision, whether any other than Sandidge could have collected from the company. He did collect the amount, and is bound by his contract to account therefor.

This brings us back to the question whether Sandidge has the right to withhold from the amount collected the debt due by Bond, and the amount of his Walmsley acceptance ?

Brown, a member of the firm of Sandidge & Co., and Bond testify that at the time the arrangement was made for taking out these policies, it was verbally agreed and understood that each policy should stand as security for the debts of Porter and Bond individually, and also for the debts of the firm of Porter & Bond.

The testimony of Sandige himself, who was the chief actor in this matter for his firm, does not fully sustain these witnesses. In one place he says the indebtedness to be covered by the policies was that of the firm, and of Porter and Bond individually. In another he restricts the indebtedness to that of Porter and of the firm. This last statement was made in answer to questions relative to a letter written by him to Porter. The letter is as follows :

“ New Okleans, 7th July, 1870.
Mr. Jacob C. Porter :
“Dear Sir — I have in my possession life policy No. 7096, granted to you 20th May, 1870, by the Life Association of America for the sum of ten thousand dollars for my benefit. This was done to protect me in any amount of money which is now due, or may become due to me or to my business commercial firm in this city by yourself, to whom, or to your heirs or assigns, the same will be transferred at any time by myself, my heirs and assigns, all indebtedness being paid.'
“ John M. Sandidge.”

Being asked in what respect that letter omitted to fully state the agreement, he answers, “None that I see.” Being asked what the indebtedness was, which was therein spoken of, he replied, “ The indebtedness contracted at the beginning, by him individually and Porter & Bond. * * * That is what my expression means, ‘ all indebtedness.’ ”

While it may be true, as contended by defendant’s counsel, that mere reference in a letter to a previous contract should not be taken as changing or abrogating any of its terms, unless that intent clearly results, still when a dispute arises as to the scope of a previous verbal agreement, such a letter ought justly to have great weight, more especially when it is manifest that the reference is not merely casual, but constitutes the sole matter of the letter. It is evident that that letter was written for the purpose of giving Porter a formal acknowledgment in writing of liis interest in and relation to said policy.

In another letter, dated 30th May, 1873, to Porter, Sandidge says : “ I have arranged to carry your life policy into next winter as you requested. Think you act wisely in making an effort to keep it up, and I am glad to be able to assist in it. * * * I cannot carry Oapt. Bond’s life policy, because he does nothing — paid it last year, which he did not refund, and he will hardly expect me to repeat now.” He adds, also, that he sends up a premium note, in blank, to be signed by Porter, etc. It seems that Bond’s policj' was no longer carried, but was converted into a paid-up policy for $3000, which is held by Sandidge.

Waiving for the present the question as to the admissibility of parol evidence to prove Porter’s agreement to subject either himself or his property or estate to the payment of Bond’s debt, we think the weight of evidence is against the existence of such an agreement. There are, we think, also some inherent improbabilities in the proposition maintained by defendant. The evidence clearly shows that the intent of the parties was, that each should keep up his own policy at his own expense; that the policy of Porter was'his property; that for any advances 6f premiums by Sandidge, Porter was individually liable and could have been forced to repay them ; that Porter exerted himself to have his policy kept up, though hard pressed. It is hardly probable that he would have been willing to do all this in order to pay Bond’s debts, for which he was in no wise liable. Nemo presumitur donare.

But we are not prepared to concede the admissibility of parol evi-' dence to establish the alleged agreement. As we have seen, it was an agreement whereby Porter promised that his property or that of Ms estate should be liable for the debt of a third person to Sandidge. We think proof of such a promise comes fairly within the scope of the prohibition of art. 2278 C. O.

As to the Walmsley acceptance, we need only say that the action of the acceptor against the drawer is one in indemnity, and that it does not arise until the acceptor has paid, and thereby discharged the drawer.

The accounts of Sandidge & Co. with Porter are made up with interest, pro and con, at eight percent. They were regularly furnished to Porter, who made no objection, thereby acquiescing in them. The charge of two and a half per cent commission should be disallowed. Sandidge should be charged with’what he actually received. We state the account as follows ;

Sandidge received... $8,802 86. Porter owed him 14.341 28, less $27 85 commissions $4,313 43
The commercial firm of Porter & Bond owed him 1,687 01— 6,000 44
Balance due Porter $2,802 42

For this amount, with five per cent interest from 30th January, 1874, the date of its receipt, plaintiff should have judgment.

It is therefore ordered and decreed that the judgment appealed from is annulled and reversed ; and it is now ordered and decreed that plaintiffs do have and recover of the defendant, John M. Sandidge, two thousand eight hundred and two and 42-100 dollars, with legal interest thereon from 30th January, 1874, and all costs.


author: White, J.

text:
    No. 7784.
    Mrs. M. Elvira Huguet vs. J. W. Bates, Sheriff, et al.
    Where, in a sale by lioitation of succession property, the husband of one of the co-heirs becomes a purchaser, such purchase does not constitute a sale by the wife to the husband within the prohibition of C. C. 2*46, re-affirming Rowley vs. Rowley, 19 Louisiana, 576.
    Where, on partition of the proceeds of such a sale, the share of the wife is retained by the husband, he becomes bound to her for money received for her account, and she cannot thereafter invoke the resolutory condition, on the ground of the non-payment of her portion c5f the proceeds. ‘
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. 'MeVea, J.
    Herron, Bird & Beale and C. D. Favrot for plaintiff and appellant:
    Plaintiff’s husband having bought in his name, at the partition sale of her father’s succession, property belonging to said succession, and having retained, and not paid, the price of sale, which was due to her, it should be considered and decreed that the title is in plaintiff, and that the property was bought by her husband for her account and with her paraphernal funds. 22 An. 105; 15 An. 569 ; 1 An. 520; 8 An. 499 ; C. C, arts. 1265, 2320, 2337,2412.
    Head & Goodale for defendants and appellees :
    The purchase was that of the husband, not of the wife. She is his creditor for the price, and should have recorded her rights of mortgage against him.
   The opinion of the court was delivered by

White, J.

In the suit of J. S. Huguet for the use of Felix Fermento, vs. W. P. Huguet, certain real estate was advertised for sale. Mrs. Elvira Kleinpeter, wife of J. S. Huguet, enjoined the sale, claiming ownership of the property. Owing to the insufficiency of the bond, the injunction was dissolved shortly after its issuance. The suit was subsequently tried and .judgment rendered against Mrs. Huguet, from which she appealed devolutively. In order to understand the issues presented, a brief •-statement of facts is requisite. John B. Kleinpeter died in the parish of .Baton Rouge in 1861, leaving a widow and the following legal heirs : •Josiah Kleinpeter, Mrs. M. Elvira Kleinpeter, wife of J. S. Huguet, Mrs. Mary Caroline Kleinpeter, wife of Samuel McConnell, and Miss Mary A. Kleinpeter, then a minor. His succession was opened by the appointment of an administrator, and the inventory thereof amounted to $172,000. On the 18th of January, 1862, a certain plantation, belonging to the succession, was sold by the sheriff to John S. Huguet and .Samuel McConnell for the price of $161,672 50. The order, in virtue of ■which the sale was made, is not in the record ; we, however, conclude ■from the sheriff’s procés verbal that it was a decree for partition. The terms of the sale, as fixed by the order, as recited in the act of sale by the sheriff, were as follows: As to the minor’s share, on a credit of one, two, three, and four years, evidenced by notes bearing six per cent to maturity, and eight per cent thereafter, secured by mortgage ; as to the major heirs, at one, two, and three years, evidenced by notes bearing eight per cent from date until paid. On the 8th of February, 1862, the Widow Kleinpeter in her own behalf and as tutrix of the minor, and the major heirs, Mrs. McConnell and Mrs. Huguet, being represented by -their husbands, by act before the parish recorder partitioned the proceeds of sale, the result of the partition being that Messrs. McConnell -and Huguet retained in their hands the portion of their bid which would have accrued to their respective wives, and gave notes for the shares of -the others. Thereafter, in April, 1862, the administrator filed a final account of his gestión, in which he credited himself with the proceeds ■of the sale partitioned among the heirs. The property thus acquired 'by McConnell and Huguet was by them sold in 1866 to W. S. Pike; was resold them by Pike in 1867, and in 1868, Huguet became by purchase •the owner of the undivided share of McConnell. Under this state of .fact, the theory upon which the plaintiff’s case proceeds is, that she is ■the owner of the property, having been really the purchaser at the partition sale ; that instead of being a licitation, it was really a partition in 'kind ; that as the husband paid nothing for the wife’s share, but simply in the act of partition retained in liis hands the portion of the price due, therefore the undivided interest of the wife remained hers. 2d. That if the purchase was validly made by the husband, then, the price not having been paid, she is entitled to the resolution of the sale, for which ■she prayed in a supplemental petition, which also prayed that the co-heirs be made parties. We will consider the grounds separately.

. First — The claim, that the wife and not the husband was the pur- • chaser, as also, that the sale was merely a partition in kind, finds its refutation in the fact which we have already stated. The arguments by •which it is .sought to maintain these grounds, practically, when reduced -to-their last analysis, amount to the proposition, that as sales between, husband and wife are prohibited, except under given conditions, C. 0.. 2146, therefore, a husband is incompetent to purchase at a partition sale-of the property of a succession where the wife is an heir ; such a sale amounting, under the theory of our law, to a sale by the wife to the-husband of her interest in the property. Whatever might be the theo--retical difficulties -involved in the negative solution of the proposition, if we were called upon to examine it as a new question, we need not • embarrass our views by considering them, as the question is not new,, but, on the contrary, has long since been determined. In Rowley vs. Rowley, 19 Louisiana, 576, this court in considering a sale like the one-now under review, said: That the title, to the whole estate called Marengo, * * * was, by the sale and purchase then made, vested in the defendant, and therefore, community property, we have no doubt.. The proceedings, which were had previous to this sale, were for the purpose of effecting a partition of the joint estate. * * * The sale was-a foi’ced and judicial one for the purposes of partition, and at such a sale we think a husband may be a purchaser,and by it vest the interest-of the wife in tlie community, it being responsible to her for the price-only.” After commenting on the extent of the prohibition of sales-between husband and wife, the court added : “ But we see nothing in the law to prevent a husband from purchasing ata probate sale of a, succession, to which his wife is an heir, a portion, or the whole, of the-property composing it, and holding as if such property were purchased from any one else. * * * Should the portion of the wife be imputed to the extinguishment of the price to be paid by the husband, then he is-unquestionably bound to her for it.” * * * The views thus expressed have never been overruled or questioned ; on the contrary, were adhered to in Dees vs. Seale, 5 An. 688. They have become a rule of' property which we cannot be expected to disturb. The case of Decuir-vs. Lejeune, 15 An. 569, relied on by counsel, is not in point; there the-wife was the sole heir of her father and mother; her present and future property was dotal; upon the death of the father and mother the wife went into possession as sole heir. After unconditional acceptance the-husband provoked an administration and sale, at which he became the-purchaser of all the property. The whole proceeding having been found simulated and provoked with the object of divesting the property of its-dotal feature, was stricken with nullity.

Second — -The proof leaves no doubt that the shares which fell to the-other heirs, from the credit proceeds of the sale, have been either paid or otherwise extinguished. Pretermitting any expression of opinion as to-the grave questions involved in determining whether under such circumstances the plaintiff could invoke the resolutory condition, we deem it. adequate to say, that the portion of the price which was attributed toiler by the act of partition was assumed by the husband as money paid him. Under this state of things, both the case of Rowley vs. Rowley and' that of Dees vs. Seale teach that the husband as head of the community, administering the paraphernal property, is considered as having received-the price for the wife’s account, and the amount, being thus deemed paid', into his hands, is secured by the wife’s mortgage.

There are other questions raised in the brief of counsel which we do not, for the sake of brevity, discuss. We have considered them all, and think them disposed of by the views we have expressed. We see-no reason to increase the damages.

Judgment affirmed with costs.


text:
    No. 7813.
    Successions of William E. Edwards and Lavinia Wilson.
    The failure to aúnes toa delinquent roll the affidavit required bylaw does not ■sfitiate the* registry resulting from the recording of the roll.
    A minor may be allowed under proper conditions one thousand dollars from the estate of a deceased mother, adhering to Succession of Mary Coleman, 27 A. 289. The condition ol the minor at date of the death is the criterion by which to fix necessitous circumstances..
    A minor’s claim against his tutor must be liquidated before it can be enforced.
    lPPEAL from the Parish Court of Iberville. Cole, J.
    E. B. Talbot for opponent and appellant:
    The statute which allows $¡¡1000 to the minor children in necessitous-circumstances, in the succession of their father, does not apply to the succession of 'their mother. The text of the law is so clear,, that its letter cannot bo disregarded under the pretext of pursuing-its spirit. C. C. article 13 ; 29 An. 64 ; 29 An. 703 ; 30 An. 671.
    Until a final account of tutorship has been rendered, the minor, arrived-at the age of majority, has no claim against the succession of the-former tutrix for any specific sum of money. 29 An. 526.
    The list of delinquent taxpayers not being recorded as required by law; the State can claim no privilege. 29 An. 508.
    The privilege of the State for taxes is prescribed by three years. 22. An. 246.
    Harry L. Edwards, for the succession, appellee:
    The minor in necessitous circumstances is entitled to the $1000 in the-succession of the mother. Such is the intention of the law. Any other interpretation would destroy its very object. 27 An. 289.
    'The right vests in the minor at the moment of the parent’s death, and it is only to be considered if, at that moment, the minor was in necessitous circumstances. 13 An. 352; 29 An. 702 ; 27 An. 99 ; 18 An. 36.
    'When the claim of the minor, arrived at the age of majority, against his former tutor, is liquidated, it can be recognized and enforced against his succession, without the necessity of a previous account of tutorship. 23 An. 361; 24 An. 190.
   The opinion of the court was delivered by

White, J.

The testamentary executor of Mrs. Lavinia Edwards and ■•administrator of W. E. Edwards presented his final account. Sundry oppositions were filed, which were in part sustained, and in part rejected. Two of the opponents, A. Talbot and H. L. Edwards, appeal. The ■amendment of the judgment not having been prayed by any of the ap-pellees, nothing is before us but the matters presented by the oppositions of the appellants.

1. State and parish taxes for the years 1873, 1874, 1875, and 1876 were placed on the account as privileged; they are opposed as not privi-leged for the want of proper assessment and registry of delinquent rolls, and because the privilege for the years 1873 and 1874 is pre■scribed.

The tax-roll for each of the years assessed the property as belonging to estate of Edwards, W. E., Widow ; “ it was described as eighty-acres 'tract of land, right bank of Mississippi river, bounded above by estate B. Rills, below by Azema Broussard the only difference in the various ■ assessments being that in 1873 and 1875 A. Broussard stands in stead of .Azema, and in 1876 the property is stated as bounded below by lands of J. T. Lefeaux. The testimony is, that up to 1868 the upper line was in part bounded by lands of B. Rills, and the lower in part by lands of Mrs. Broussard. That about 1868 the land on the upper line was transferred to Gay, and that Lefeaux became the owner of the lower Broussard tract at a date not mentioned. We consider the description as sufficiently accurate. One of the boundaries was certainly correctly given. The delinquent rolls we understand from the testimony to have been recorded; this being so, the failure to make the affidavit while it might have justified a refusal to register, does not vitiate the registry •when made, nor do wo consider the limitation in the act of 1877 to be ■retroactive.

2. Mrs. Edwards, at the date of her death, left a daughter, then a ¡minor, in necessitous circumstances. She was placed on the account for 'One thousand dollars, under the act of 1852. Talbot opposed, on the ¿ground that the minor was entitled to the one thousand dollars from ■the succession of the deceased father, and not from that of the mother, ■•and because, since the death of the mother, the daughter lias married, ■•and is not now in necessitous circumstances. The first objection was held to be not well taken in Succession of Mary Coleman, 27 A. 289. We are asked to reconsider the question and overrule the conclusion of ■our predecessors, on the ground that it is in direct violation of the ■terms of the act of 1852. We do not consider the reconsideration proper or necessary to be had. As said in City vs. Hermann, “ the construction of a statute is always a matter of delicacy, and when once made, should not be lightly abandoned and we are not disposed to do ¿so, “ unless compelled by a conviction that a previous conclusion has been reached without consideration, or is so manifestly wrong as to •leave no room for doubt.” While if the question were new, we'might hesitate to adopt the view taken in the Coleman case, it is far from certain •that the terms of the statute do not justify that view. The words whenever the widow or minor child of a deceased person ” are certainly broad enough to authorize the minor to claim from the estate of either the father or mother. True, the subsequent words “from the .succession of their deceased father or husband” would seem to limit the word “ person,” but the effect of this seeming restriction is doubtful in view of the terms of C. C. 3556. Be this, however, as it may, the construction given by our predecessors involved necessarily an interpretation of the statute consequent on the ambiguity of its terms, and we will not overrule it.. That the condition at the time of death is the •criterion, has been determined. 29 A. 702.

3. The deceased received as tutrix the amount of a legacy which belonged to two of her children. It was put on the account as secured ‘by the tutorship mortgage. It is contended that the general mortgage -of the minors can only be enforced after rendition of account. We have so held. 29 A. 256. In fact, non constat, that any thing be due •the minors until the account has been rendered. It is said this amount is liquidated, and hence removed from the operation of the rule. We do not so think; nor do we think the cases cited sustain the position. We will, however, reserve the rights of the parties.

It is therefore ordered, that in so far as it recognizes Ida P. and H. L. Edwards as mortgage creditors, the judgment below be reversed, reserving the rights of said parties to claim against the fund herein to 'be distributed, or any other such sum as may be found due on final settlement of the tutorship account. That in all other respects said .judgment be affirmed, costs of both courts to be borne by the succession.


author: Manning, C. J.

text:
      No. 7721.
    W. F. Chase et al. vs. J. A. Bell, Sheriff, et al.
    When a sheriff is called on by rule to pay over the proceeds of a sale under a writ of fi. fa.' to the plaintiff in the writ, and prior attaching creditors are made parties to the rule, he cannot set up superior privileges in favor of such attaching creditors, who do not malie such claim for themselves.
    APPEAL from the Seventeenth Judicial District Court, parish of RecL River. Pierson, J.
    J. E. Pierson for plaintiffs and appellants :
    First — The defense is purely technical and confined to two grounds, first, • jurisdiction ratione material, and, second, want of the necessary-parties. We submit that the court had jurisdiction ratione material.. Rev. Stats, of 1870, sec. 2903 ; 28 An. 585 ; 29 An. 315, 320 ; 31 An.. 375.
    Second — It was the duty of the sheriff to pay over these proceeds to-these plaintiffs to an amount sufficient to satisfy their judgments. He refused to pay them over, because there were attachment suits-pending in court under which the property was first seized. These attaching creditors have no privilege until after judgments have-been obtained in such suits. 20 An. 346, and authorities there cited. It is the duty of the sheriff to pay over the proceeds of property sold by him under execution to the parties shown to be entitled to-them by the certificate of mortgage and the writs in his hands. 15-An. 513 ; 9 As. 509 ; C. P. 766.
    Defendants not represented.
   The opinion of the court was delivered by '

Manning, C. J.

The commercial firm of Lisso & Seheen being indebted to their book-keeper and salesmen in different sums, these parties', in separate suits obtained judgment against the firm with recognition of their privilege upon the stock and commercial assets.. Their claims had been recorded. Writs of fi. fa. were issued, and the sheriff executed them by selling a lot of merchandize which realized $3075. The sum total of the judgments in principal was $1154 33, to which must be-added interest and costs. The sheriff refused to pay over to the plaintiffs in judgment so much of the proceeds of sale as would satisfy the writs of fi. fa., and they -therefore took out rules upon .him to compel him to pay over, and made certain prior attaching creditors parties defendant.

The sheriff’s refusal was based upon the fact that he had first seized the property under three writs of attachment, sued out subsequent to ■the registry of the salesmen and book-keeper’s privileges, and that the attachment suits are undecided. Not one of the attaching creditors in ■any manner contests the claims of the plaintiffs, or denies the existence of their privileges. Neither they nor the sheriff, who are defendants in -this suit, have deemed their defence worthy of a brief for the use of this court.

Where a sheriff is called on to pay over the proceeds of a sale under ji. fa. to the plaintiff in the writ, and prior attaching creditors are made parties to the rule, he cannot set up superior privileges on the fund in favor of third persons who do not make such claim for themselves. Lynch v. Leckie, 9 Ann. 506. If the prior attaching creditors supposed they had a lien superior to that of the employees of the firm, and meant to claim it, they should and no doubt would, when made parties to the ■rule, have contested the rank of the liens, and have thus provoked an ¡adjudication upon them. Certainly the sheriff cannot of his own motion •retain a fund in his hands on the plea that others are interested in its •distribution, when the parties supposed or alleged to be interested do not contest the priority in rank of the claimants nor the existence of their claims.

It is ordered and decreed that the judgment of the lower court is •avoided and reversed, and that there be now judgment in favor of each -one of the several plaintiffs against the sheriff, ordering and directing ’him to pay to each of them the amount of his judgment, principal, in-terest, and costs, out of the fund produced by the sale under their writs of fieri facias, and that they also recover of him the costs of this appeal •and of the lower court.


text:
    No. 7788.
    John A. Stevenson vs. E. J. Brown et al.
    ~13on-payment of tlie price constitutes a resolutory condition in the contract of sale j and its effect is in no manner affected hy the fact that the vendor has failed to preserve his privilege, or mortgage, hy registry.
    A PPEAL from the Thirteenth Judicial District Court, parish, of East Carroll. Hough, J.
    W. G. Wyly for plaintiff and appellee:
    .First — It is conceded in the answer of E. J. Brown, and not contradicted by H. B. Wade, “ that he was put in default for non-payment of the price.”
    'This admission in the answer, and the production of the unpaid notes for the price, entitled plaintiff to a resolution of the sale and-' restoration of his property, as the court below very correctly decided. Revised Code, articles 2671, 2045, 2046, 2047; 11 A. 656 ;. 14 A. 340 ; 23 A. 355 ; 24 A. 537 ; 28 A. 739 ; 12 A. 699.
    Second — The remedy of the dissolving the condition is independent of the remedy of enforcing the mortgage and vendor’s privilege. Both remedies are provided by law. 12 A. 699.
    Third- — It is not necessary to record the mortgage or privilege in order-to give the right of action to the resolution of the sale. .
    Fourth — All property for which the price has not been paid is held subject to the dissolving condition.
    Fifth — A judgment creditor cannot hold the proceeds of the sale of the property which did not belong to the seized 'debtor. 11 R. 522 ; C. P. 711; 11 A. 655 ; 14 A. 340 ; 23 A. 355 ; 24 A. 537 ; 12 A. 699 ; 28 A. 739.
    Sixth — "Where the purchaser under execution is evicted, he is entitled to judgment over against the seized debtor, and the seizing creditors on their warranty; but under article 711 of the Code of Practice, he must first take out his execution against the former,, and on the return of milla bona, may proceed against the latter.” 18 L. 590 ; 2 A. 479, 756 ; 5 A. 312 ; 11 R. 522 ; 5 R. 247 ; 6 L. 737 ; 15 A. 630 ; C. P. .711.
    J. M. Kennedy for H. R. Wade, defendant and appellant:
    First — -A vendor of real estate on credit, with mortgage and privilege retained, who has neglected to preserve that mortgage and privilege by recordation as the law requires, cannot maintain, after more than five years from the maturity of the first installment of the price and three years from that of the last, an action for the resolution of the sale for non-payment of the price, to the prejudice of an innocent third holder of property, who bought at the sheriff’s-sale under an execution, without notice of the non-payment of the price by the seized debtor, and who paid his bid in cash; and that, too, when this unpaid vendor had suffered all these years to elapse without taking any steps to enforce his claim against his vendee, or to notify the world of such claim.
   The opinion of the court was delivered by

Spencer, J.

Stevenson in 1872 sold to defendant, Brown, a tract of land in Carroll parish for 12600, on credit of one, two, and three years,, taking Brown’s notes for the price. The act reserved vendor’s lien and mortgage, and contained the pact de non alienando. This act was-recorded in the conveyance book, but not in that of mortgages.

Certain creditors oí Brown seized the land, and it was sold to H. R. Wade, one of the defendants herein. No part of the price was ever-paid to Stevenson.

Having put Brown in default, he brings this suit to enforce the-resolutory condition, making Wade a party defendant.

The answer of Brown is a general denial, etc. Wade pleads that he purchased in good faith at sheriff’s sale, under a certificate showing no-mortgages or privileges against the property ; and such was the fact.

The question is, under these circumstances, can Stevenson recover this land ?

By article 2046 (2041) of the Civil Code, it is provided that in all bilateral, or synallagmatic, contracts there is an implied condition, that if either party fail to comply with his engagements, the other may demand the resolution of the contract.

The accomplishment of this condition has a retroactive effect to the-day of the contract. C. C. 2041 (2036). Things are put in the same-position as though the contract had never been made. In the contract of sale, the non-payment of the price is the event constituting the re-solutory condition. C. C. 2561 (2539).

When the condition happens, therefore, the property returns to the vendor free of all alienations and encumbrances imposed thereon by the vendee. See 11 A. 656.; 12 A. 699 ; 14 A. 340 ; 23 A. 355 ; 24 A. 537 ; 28 A. 739.

The fact that the vendor has’lost, or not preserved, his vendor’s lien,, or mortgage, presents no sort of obstacle to the exercise of this right of' resolution. When such an action is brought by the vendor, he does not sue to annul the contract made with his vendee, but to enforce it. The case does not differ in principle from that where any other event is made a condition of resolution. Thus, if I sell you my house for §10,000, and stipulate in the act that if a certain ship returns from the Indies the property shall return to me, and the sale be without effect, a suit by me alleging the return of the ship and the consequent avoidance of the contract, will be a suit to enforce one of the stipulations of the contract. Wherever a right or title is by contract, express or implied, made to depend upon a condition, that right or title is defeasible. Its holder can confer no greater right than he has himself, and, consequently, all alienations and encumbrances granted by him vanish when the condition happens. The vendor’s action is one in revendication of the thing. One purchasing property must look to his titles. In the present case that title informed Wade that his vendor Brown had agreed that in the event of failure to pay the notes' given for the price, the property was to revert to Stevenson. It informed him that Brown’s title was defeasible, and dependent for its continuance upon the happening of a condition. One who acquires a title with such stipulations in 'it, takes it subject thereto. The question of registry has nothing to do with the case. The right of resolution is an independent substantive remedy, and is in no wise dependent upon the existence of a mortgage or privilege. A demand in resolution is a demand for the property itself, and embraces in it the abrogation of any and all alienations and •encumbrances placed upon it by the vendee.

■ The judgment appealed from therefore correctly declared void the ■title of defendant Wade, though not specifically prayed for. The judgment is affirmed with costs.


author: DeBlanc, J.

text:
    No. 7712.
    The State National Bank of New Orleans, La., vs. Marie P. Evans and Husband, Wm. R. Evans.
    Th.6 creditor of a succession has no interest to claim the setting aside of probate proceedings under a second will, "by which the universal legatee qualified as executrix, when it appears that another, and regularly probated will, had. already transmitted, the succession to the universal legatee.
    "When the plaintiff resides out of the State, the defendant ma3r reconvene for any cause, whether it be connected with, or identical to, the original demand or not.
    ApPEAL from the Parish Court of Rapides. Thoi'nton, J.
    James McConnell for plaintiff and appellant:
    ‘First — The fact is admitted that the defendants are using the will thus probated ex %oarte as a muniment of title in the courts of the United States, in which courts, the defendants, who are plaintiffs herein, are unable to attack the will or question its validity, because of the want of probate jurisdiction in those courts.
    'We say, therefore, that under these circumstances, the facts being admitted in the record, it was the duty of the parish court to have allowed the plaintiffs to attack the will and demand the revocation of the order of probate; and we say further, that this precise point has been adjudicated by this court in the case of De la Croix vs. Gaines, 13 An. p. 178 ; 13 An. 138.
    ¡ Second — That the courts of the United States have no probate jurisdiction, and, therefore, these plaintiffs are without remedy to question or attack the will confessedly set up against them in the United States Circuit Court. 6 Wall. 703.

      J. R. Beckwith for defendant and appellee:
    The plaintiff discloses no right of action or any interest in the probate proceeding attacked. A creditor has no interest in the succession beyond his demand. The heir has no interest in the succession until the creditors are satisfied. It is of no importance or interest to the State National Bank who succeeds to the succession of Linton after their debt is satisfied. The legatee cannot impair their right to recover or impede their remedy. 2 An. 726; ID An. 138 ; 25 An. 91-99.
   The opinion of the court was delivered by

DeBlanc, J.

The defendant — Marie P. Evans — a resident of the State of Pennsylvania, was — by a first marriage — the wife oE Stephen Duncan Linton, who died leaving two olographic wills, which were probated in the parish of Rapides, the first in May 1875, the other in January 1878. He — in the last one — appointed, as its executrix, the said Marie P. Evans, and — in both — named her as his universal legatee.

The State National Bank of New Orleans — an alleged creditor of Linton’s succession for over one hundred thousand dollars, brought this suit to revoke the order probating the second will and confirming defendant’s appointment as executrix, on the grounds :

1. That no proof, such as is required by law for proving a will in the olograhpic form, was adduced.

2. That this pretended will was in the possession of the said Marie P. Evans at the time of the probating of the said first will, and the probating of the said first will was a renunciation and relinquishment of said executorship, the pretended second will not pretending or in any manner declaring to revoke the said first will, the provisions of both wills being the same, except the appointment of a testamentary executrix in the second, as set forth in the said pretended will.

3 That no executor’s appointment could be confirmed, while there was an already appointed executor, and the ex parte proceeding confirming a second executor is an absolute nullity.

4. That the said Marie P. Evans is a ñon-resident of the State, as she herself alleges, and could not be appointed without first giving bond and security.

5. That the succession being under administration, the proceedings had by the said Marie P. Evans, should have been conducted contradictorily with J. Madison Wells, Jr., its dative executor.

6. That the whole proceedings in probating the second pretended will are informal, irregular and illegal.

’ This suit was filed on the 6th of February 1878, and — on that day— the bank, without admitting the validity of the proceedings which it had previously assailed, applied to the probate court to compel Mrs. Evans, as executrix, to furnish bond and security. Its application was granted», and she complied with the order issued to that effect; but excepted to-the petition in which plaintiff prays for the revocation of the confirmation of her appointment as executrix, on the ground that it discloses no-actual right of action. Her exception was sustained.

It does not appear that Linton had any forced heir, and — under the-first of the two probated wills — the validity of which is not disputed— Mrs. Evans, as his universal legatee, was — from the moment of his-death — seized of right of the effects of his succession, without being-bound to ask delivery of the same — C. C. 1609 (1602) — and it seems clear that — as regards the alleged creditor of the testator’s succession — art action or judgment against her, as universal legatee, would be as-effectual and binding as any judgmentwhich'it might obtain against any dative executor.

Under these circumstances, what interest can the bank have in setting aside the probating of the second will, when another and regularly probated will has already transmitted the succession of Linton to-his universal legatee, to one who — since then — is personally liable for it» debts and charges, and who — it is admitted — is now in court, as executrix and as universal legatee, contending that it is the bank which is-indebted to said succession for two or three hundred thousand dollars ?'

C. C. 1611 (1603).

It is urged that the bank is — as a creditor of the testator — concerned in securing a faithful, proper and legal administration of his-succession. To this, the answer is that Mrs. Evans is the universal legatee of Linton, and that — having accepted the legacy — we must presume that she is herself claiming, as owner, that to which she has-acquired title under at least the first will; and — in as much as it admitted that she is now suing the alleged creditor, for a claim which — in. amount — far exceeds that of the creditor, he certainly can — in that-pending suit — institute any reconventional demand against said succession.

C. R. 375, par. 2.

As the bank does not contest the validity of any one of the wills, but merely the validity of the probating of last one, what advantage^ could it gaiu by the cancellation of exclusively the order by which it was probated? Wells — it avers — who, heretofore,.was the public administrator of the parish of Rapides, was — as such — appointed as dative-executor of that will, and — it is conceded. — is still administering upon the succession of the deceased. If so, the bank can, then, prosecute— against the executor which it expressly acknowledges — any action it may have to exercise, or — as we have already said — it can,, in the suifo actually pending, enforce against the judicially recognized and universal legatee, any reconventional demand it may have to urge against the succession of Linton, opened since more than ten years.

Considering — as we do — that the bank has not even a prospective interest in annulling the appointment of an executrix, who is the sole and absolute legatee of the entire succession of the testator, and who— as such — is now suing the bank, and — as such — can be reconventionally sued by it,

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


author: Spencee, J.

text:
    No. 7740.
    Mrs. A. A. Walker vs. Mrs. L. T. Barrelli.
    A voluntary absence of ten years, by one residing in this State, who communicates with no one relative to property owned here and makes no provision for its administration, and gives no information as to her whereabouts or intention, is good evidence of intent to abandon the domicile in Louisiana and justifies attachment.
    Domiciliary service of citation must be upon the defendant, or upon some one living in the house with defendant.
    The law does not require the copy of citation to be served on the attorney ad hoc in attachment proceedings. Lriant vs. Hebert, 30 An. 1128, affirmed as to duration of writ of ft. fa.

    Purchases by unauthorized married women are annullable only on their demand, or that of tlicir heirs or husbands.
    It suffices that the attorney swear to the best of his knowledge and belief, in attachment suits. The sufficiency of evidence, can only be questioned on appeal.
    The oath of the creditor is prima facie proof of the absence in attachment proceedings.
    A debtor residing in this State must be cited either personally or at domicile or the judgment will bo null.
    APPEAL from tlie Sixth Judieial District Court, parish of St. Tammany, Duncan, J.
    Samuel E. Walker for plaintiff and appellant:
    Eirst — A fi.fa. is issued to be returned in seventy days. The law prohibited a longer deiay. C. P. 604 ; Acts 1855, p. 253 ; 15 An. 189 ; 17 An. 467. •
    Second — The failure of a sheriff to return within the time is prima facie evidence of the debt. 23 An. 253, 207.
    Third — The purchaser at a judicial sale is a necessary party to an action to annul the sale. 30 An. 310 ; C. P. 608, 609 ; Hennen’s Dig. p. 746 (e.) No. 2 ; 10 E. 425.
    Fourth — The affidavit by an agent that he verily believes the debt is due is insufficient. C. P. 242 ; 7 N. S. 610 ; 11 An. 625 ; 13 An. 473 ; 10 An. 324.

      Fifth — The corporeal possession of tlie property in controversy, its effects and presumptions of law arising therefrom. Arts. 3442, 3443, 3444, R. O. C.; C. P. 605, No. 4, 607, 608, 609, 610, 611, 612, 613.
    Sixth — A curator ad hoc has no capacity to act until served with copies of citation and petition. 6 R. 142 ; 12 E. 540 ; 10 E. 324 ; 13 An. 487 ; Hennen’s Dig. Absentee 9, s. 277 ; 10 M. 472 ; 12 E. 461; 9 An. 550.
    Seventh — The curator ad hoc is not bound to ñle an answer. It may be a better defense not to file answer. C. P. 260, 266 ; 14 An. 75, 79 ; . 2 An. 239 ; 3 An. 381 ; 11 An. 184.
    Eighth — Prescription cannot avail the defendant. C. C. 3483.
    Ninth — The adjudication of Doherty was in contravention of law. E. C. C. 122 ; C. C. 12.
    Ellis & Ellis for defendant and appellee :
    First — On motion to dismiss, the husband’s affidavit cannot be considered in favor of the wife. O. O. 2281.
    Second — This court has no jurisdiction. Const. 1879, arts. 81 and 261.
    Third — The affidavit was good. C. P. 216, 217.
    Fourth — The defendant in Eussell vs. Torre was an absentee. E. C. C. 47, 3556, No. 3.
    Fifth — The sale was within the return-day of the writ. C. P. 318 ; 30 An. 1128.
    Sixth — A tender of the price to the defendant, the purchaser of the property, is a condition precedent to plaintiff’s action to recover. 30 An. 891; 30 An. 174 ; 30 An. 1233.
    Seventh — Prescription. C. C. 3542, 3543 ; Hennen’s Dig. (N. S.) p. 1219, No. 5, 6, 8,14, p. 1220, No. 18, 24, 25..
   The opinion of the court was delivered by

Spencee, J.

On Motion to Dismiss.

Plaintiff brings this suit to annul a sheriff’s sale of a house and lot in Covington to the defendant, and to recover said property as owner. The defendant and appellee moves to dismiss the appeal on the ground that the amount in dispute does not fall within our jurisdiction. An inspection of the record satisfies us that we have jurisdiction, and the motion to dismiss is denied.

On the Meeits.

Plaintiff acquired this property in 1866, at sheriff sale, made under execution issued on a judgment in her favor against J. C. Barrelli, and took possession of it. She removed in the early part of 1868, with her children, to New Orleans, and there contracted two debts, one to Russel & Hall for about $103, and another to Berry Russel for about $200. Being unsuccessful in her business in New Orleans (being then the widow Della Torre) she went to South Carolina, taking her children with her. She left a servant in charge of her premises in Covington — the servant not living in the main house, but in a small house across the street, also the property of plaintiff. Plaintiff after reaching South Carolina seems to have lived with her relatives part of the time and part of it was engaged in teaching school. .

In June, 1868, after her departure for South Carolina, Russel & Hall brought suit in the parish of St. Tammany, where the property lies, by attachment, alleging that she had left the State permanently. The house and lot were seized under the attachment, and Anally sold under the judgment rendered in said suit, and were bought by the defendant, who was the wife of J. C. Barrelli, for $700 on twelve-months’ credit.

Berry Russel also brought suit later and attached the same property, and obtained judgment also. In 1878 the plaintiff brought suit to annul these judgments of Russel & Hall and Berry Russel, joining Mrs. Barrelli as a co-defendant. But on exception the suit was dismissed as to her, and proceeded to judgment only contradictorily with the other parties. There was judgment for plaintiff annulling said judgments. Sho now brings this suit against Mrs. Barrelli to annul her title and recover the property. The grounds of nullity alleged are in substance,

First — Want of legal citation, she being a citizen of Louisiana, having her domicile in Covington, where service should have been made. That in these suits no service of citation was made on J. M. Thompson, who was appointed attorney ad hoc to represent her.

Second — That the writs of ft. fa. under which her property was sold had expired at the time of sale.

Third — That Mrs. Barrelli, the purchaser, being a married woman, was incapable of buying without the authority of her husband, and the sale to her was absolutely void, as made in contravention of a prohibitory law.

Fourth — That the affidavit of G-. H. Penn, the attorney, was not sufficient to warrant the issuance of the attachments.

Fifth — That the judgments were rendered on insufficient evidence, especially as to the permanent absence of the debtor.

Sixth — It is also charged that these suits and the sale were the results of a corrupt conspiracy between Russel, Hall, Penn, Thompson., and the parish judge, to despoil plaintiff of her property.

We will consider these grounds of nullity in their order :

1. It is not denied that at the time these attachments were taken plaintiff had left the State. Her own evidence shows that she was so absent for ten years — from 1868 to 1878. She admits that she never communicated with any one during that time about her property, paid no taxes, and made no arrangements for the care and administration of the property. Her friends and relatives here were left unadvised as to her whereabouts, or her intentions. A voluntary absence, of two years from this State, under these circumstances, forfeited her residence therein. E. S. 1202.

True, these facts, at the time the attachments were taken, had not developed themselves ; but they are good evidence now to show what was probably her intention then. We think the absence was such as justified the attachments. Nor do we think that service on the servant would have been good, as the law requires that domiciliary service be on a person living in the house with defendant. We have just seen that the defendant in attachment did not live in Covington when the writs issued.

The proceedings prescribed by law for attachment suits seem to have been scrupulously complied with. The citation was served by posting a copy at the courthouse door, as was the writ of attachment. An attorney ad hoc was appointed, and defended the suit by denying all plaintiff’s allegations. The law does not require service of citation to be made on him in attachment suits. C. P. 254.

2. The writ, or rather alias writ, of ft. fa. under which the sale was made had not expired on the day of sale. It issued May 29,1869, and the sale was made on August 7,1869. See Briant vs. Hebert, 30 An. 1128.

3. The purchase of property by a married woman, without authority, is annullable only on her own or her husband’s demand, or on that of her heirs. C. C. 134. In the present case, however, there is no room to doubt that the husband did authorize the wife.

4. Penn made the oath as agent or attorney, and swore to the best of his knowledge and belief. This was all the law required. C. P. 216, 217.

5. The sufficiency of the evidence on which a judgment was rendered can be inquired into only on appeal from that judgment. The oath of the creditor is prima facie proof of the absence of the debtor. True, if the debtor was not in fact an absentee, but a resident of the State, the judgment would be null — not for insufficiency of evidence, but for want of citation. A resident of the State must be cited either personally or by service at bis domicile. If not so cited, the judgment against him is absolutely void.

6. We find no proof in this record sustaining the charge of combination and conspiracy alleged. Penn was the attorney of plaintiffs, and so far as we can see, was guilty of no improper practices. It is said he was security on the attachment bonds, and also on the twelve-months’ bond given by Mrs. Barrelli. We are at a loss to see what impropriety there was in this, or in the fact that judgments were written up by him in the attachment suits.

The plaintiff made the parish judge and Thompson, the attorney ad ¡hoc, defendants in this cause, and claimed of them large damages. The judge was never cited, and the suit properly dismissed as to Thompson on his exception of misjoinder, etc. The petition as to Thompson did not on its face set forth any specific acts of misconduct on his part, but charged in general terms neglect of duty, and that he colluded with •others.

It is said he did not move for a new trial or appeal. We know no law that compels an attorney ad hoc to do these things, especially at his own expense and against his judgment. He seems to have used proper effort to obtain plaintiff’s address, but without success.

We find no evidence whatever that the defendant, Mrs. Barrelli, or her husband were guilty of any fraud or of colluding with the plaintiffs ■in. these suits. She was a third person, and her rights are unaffected 'by the judgment, rendered subsequent to her purchase, annulling the judgments of Russel & Hall and Berry Russel. She was no party thereto. That judgment of nullity was, it seems, rendered on default, -and so far as the defendants therein are concerned, is final. We are not advised of the reasons which actuated the parish judge. We hold that instead of being absolute nullities, they are, so far as this record enables ns to judge, good and valid. If there were irregularities, they are not apparent, and not of a character to strike with absolute nullity the proceedings. The defendant swears that her twelve-months’ bond has been paid, but the payment or non-payment thereof in no wise affects the "validity of her purchase. If not paid, she can be compelled to do so or give up the property. Third persons, without notice, purchasing at judicial sales are affected only by absolute nullities.

We think the judgment appealed from is correct, and it is affirmed with costs.


text:
    No. 7818.
    New-Orleans Pacific Railway Co. vs. Edward J. Gay.
    •Oar expropriation laws authorize the talcing of the fee if necessary for public purposes. Eut if the public needs do not require it, and a less estate will meet the public wants, the fee cannot he taken.
    'Tlie Constitution only allows private property to he taken to the extent that the public interest demands, and no further. Expropriation beyond that is unconstitutional.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. McVea, J.
    Kennard, Howe & Prentiss, Samuel Matthews, and A. & E. Talbot ■for plaintiff and appellee:
    1. The defendant made no motion for a new trial, and his criticisms of the verdict upon questions of fact therefore lose much, of their “weight where not made before the court which tried the case originally ; ” that “ an appeal from a judgment founded on a verdict should only be taken after the refusal of a new trialand that “ judgments founded on verdicts should never be brought before the Supreme Court, without showing that an attempt has been made to obtain a new trial.”
    Such are the rules derived by Mr. Hennen from the decisions. Digest, vol. 1, pp. 99-100, and they are laid down in such cases as Wright vs. Ferren, 10 A. 92, and the precedents there cited.
    2. It is said in appellant’s brief, that the judgment does not conform to the verdict, it being claimed that the verdict is for a right of way only, and the judgment adjudges the land to the plaintiff with full title. At this point it may be proper to quote the law wiiich controls the question. The Act No. 14 of 1876, p. 33 ; Act p. 31, B. S. of 1870, sections 1479,1481,1483, 1485.
    “A verdict must always be understood with reference to the pleadings, and as responsive to the issues made by them.” Trepagnier vsi Durnford, 5 Martin, 456 ; Harrison vs. Faulk, 3 La. 70 ; Downes vs. Scott, 3 Bob. 88 ; Keane vs. Fisher, 9.A. 74.
    “The whole finding of a jury on special facts must be taken together.”1 Innis vs. Crummin, 1 N. S. 563.
    “ Uncertainty in a verdict may be rectified by reference to the pleadings.”' Newton vs. Ker, 14 An. 704; Gay vs. Ardry, 14 L. 288.
    “ Whatever' is beyond the province of the jury to find in the particular case may be disregarded, and judgment rendered without reference to it.” Peytavin vs. Winter, 6 La. 559.
    “ A special verdict simply finds the facts, leaving the court to render a judgment which shall be a proper legal conclusion from such facts.” Campbell vs. Creditors, 16 La. 351.
    “ By a special verdict the facts of the case are put on the record, and the law submitted to the judges.”' Bouvier’s Law Dictionary, 14th ed. verbo Verdict.
    3. ,The transfer of the “right, title, estate of the owner in and to the land,” to a company having perpetual succession, could be nothing else but an appropriation in fee. 50 Pa. State, 425 ; 2 Blatchford, 95 ; 1 Kernan (N. Y), 308 ; 2 Devereux & Battle, N. C. Law, 451; 4 Sneed, 528 ; Cooley, 558.
    “In estimating the value of the property to be expropriated, the basis of assessment shall be the true value which the land possessed before the contemplated improvement was proposed, and without deducting therefrom any amount for the benefit derived by the owner for the contemplated improvement or work.” B. S. sec. 1482.

      But this prohibitory provision indicates the general rule whose operation is thereby restricted; and as to other damages, beyond the-value oí the land taken, there can be no doubt that they may be-offset, as the judge charged. In so charging, he but followed tlio-rules laid down by this court in Railroad vs. Lagarde, 10 A. 150 and Railroad vs. Calderwood, 15 A. 481, in the interpretation of the same statute. A similar rule has been followed in many Other-States, as will be seen by the authorities collected by Cooley, at p.. 568, Con. Lim. There is no authority in any book or decision..
    5. The findings of a jury on questions of fact will not be set aside-unless manifestly erroneous..
    Barrow & Pope for defendant and appellant.:
    1. On 24th April, 1879, defendant filed, and had served on plaintiff’s-counsel, a supplemental and amended answer.
    The supplemental answer specially denies that the full ownership of said lands sought to be expropriated is necessary for the public-use. He avers that a servitude of-way will fully accomplish all-purposes of said railroad, and a width of fifty feet is all-sufficient.
    On the 29th of April, before the case was called, defendant asked to-have this supplemental and amended answer allowed, but the court-refused the same.
    The lower court erroneously refused to allow it.
    First. It could not be said to come too late, because the trial had not begun, The plaintiffs could not be taken by surprise, for they were-ready to sustain the averments of the petition, that the ownership-of the land was necessary to its purpose.
    Second. That it is an issue which could be made by special plea, is-settled by what is said in 31 An. p. 432 : “ We think the legal presumption is that the full ownership is necessary to a corporation-having perpetual existence, and that if it is not necessary, the onus-of showing it is on defendant, who should specially plead it.”
    2. “That the list of jurors, when once legally formed, must constitute that out of which the jury is to be formed whenever the case is tried.. That the legal panel or list could not be dismissed and a new list formed for the subsequent term of the court.” O. C. 2631.
    3. It was also objected, that the court had excused a juror who was* over sixty years. The statute does not exempt any one, and only-fixes as a qualification that he be a freeholder. The jury has to betaken as they stand on the list, unless a cause can bo shown ; so the-excusing a juror, who is competent, may operate to the injury of the party in two ways. The juror may be lost, and his name not being called, may give one objectionable to defendant.

      This statute being one to compulsorily take a man’s property, should be strictly construed, and all its requirements and safeguards strictly enforced. Oooley on Oon. Lim. p. 529, 528, 539, 540, 340.
    4. In expropriating the right of way for a railroad merely, a servitude on the land, and not its ownership, is acquired. 11 A. 98 ; Constitution, art. 110 ; O. 0. 722, 490,491, 492, 505 ; 55 Pa. St. 16 ; 29 Mo. 141; O. O. 509 ; 32 Vt. 68; O. 0. 777 ; 0. 0. 2634; O. P. 690; 0. 0. 2626, 2630, 2632, 2640 ; Field on Oor. 496.
   The opinion of the court was delivered by

Spencer, J.

This is a proceeding by plaintiff to expropriate, in fee, lands of the defendant, alleged to be necessary for the road-bed of a railway.' In this case (by difference from that of “ N. O. Pacific R. R. Co. vs. Gay, Tutor,” reported in 31 A. 430) the defendant not only denies that plaintiff’s necessities require the quantity of land sought to be expropriated, but also denies that there is any need of expropriating the title in fee, claiming that a right of way is all that is necessary for plaintiff’s purposes.

In the case above referred to, we rested our affirmance of the judgment expropriating the fee on the ground that the defendant’s pleadings did not present an issue as to the extent of’the estate to be expropriated, but only as to the quantity of land.

The judge a quo refused to allow the defendant in the present case to enter upon the question as to the extent of the estate to be taken, holding that plaintiff was, under our statute, entitled to the fee. The question is therefore presented, whether, as a matter of right, the plaintiff can take the fee, where a less estate would answer all the needs of the company ?

There is no doubt that the title in fee of the property of a citizen may be taken, if necessary for purposes of public utility, adequate compensation therefor being made. But the only basis, for this right of expropriation, is the needs of the public. The property of no man can be taken without his consent, beyond what is demanded by the public necessity. This results, we think, from the provisions of the Federal and State Constitutions, which declare in substance that vested rights cannot be divested by the State, nor private property be taken, except for purposes of public utility. To entitle the.public to take private property, two things are necessary ; first, the interest of the public must require it, and second, adequate compensation must be made.

¥e think it a fair deduction and corollary of these propositions, that the public can take no more, either in quantity or estate, than will suffice the public wants. If necessary, the fee may undoubtedly be taken ; but if not necessary, it cannot. If a servitude or right of way will answer all the purposes of the plaintiff, to take more would be to violate the letter and spirit of the constitution. As we said in the case in 31 A. referred to, the question, as to the extent or nature of the estate which the public needs require to be taken, is one of fact. It is manifest that if it were a canal that was to be dug, it would require the fee, while if a turnpike or plank-road for temporary purposes was to be ■constructed, a simple and temporary right of way would be all that could be required.

We' also said in that case that we thought a railroad company clothed with perpetuity presumptively needed the fee, and that the onus was on the defendant to show that it was not necessary. The first proposition may be stated too broadly! We think it should be modified as follows: That in the absence of allegation and proof that the fee is unnecessary, the court should award the fee where the party seeking the expropriation is chartered to maintain a public work in perpetuity.

We think that defendant had the right to make this issue, and to administer the proof of it. As the damages would be less where only a servitude or right of way is granted, and as the parties have not had full opportunity to be heard on this question as to the nature and extent of the title needed, we must remand the case for that purpose.

It is therefore ordered and decreed that the judgment appealed from is avoided and reversed, and this cause is remanded to the court a qua for a new trial, and to be proceeded with according to the views herein expressed and according to law, appellee paying costs of appeal.