author: Spoeford, J.

text:
    Vincent & Co. v. J. Gandolfo.—B. A. Dryer, Garnishee.
    Compensation rests upon good faith.
    An assignee, for the purpose of distributing a fund which is the common pledge of one’s creditors, cannot offset his own debt (the character and terms of which he does-not disclose) against a portion of the common fund thus entrusted to him.
    The fund is liable to attachment in his hands at the suit of the creditors of the assignor.
    APPEAL from the Sixth District Court of New Orleans, Gotton, J.

      GhaHes A. Taylor, for plaintiff and appellant.

      Emerson S Huntington, for garnishees.
   Spoeford, J.

The plaintiffs have appealed from a judgment discharging the garnishee, Dryer, on his answers.

He acknowledges that he had funds in his hands belonging to the debtor, Gandolfo, to an amount sufficient to satisfy the claim of plaintiffs, but under the following circumstances, which he contends authorize him to compensate what he has against a debt due him by Gandolfo. He says that “on the 8fh November, 1856, the said Gandolfo, on condition that his creditors should give him a discharge from the debts and obligation which he owed to them respectively, conveyed and assigned to said creditors certain rights, chattels and effects. Judah Ha/rt and respondent were appointed assignees to receive and dispose of said property, and distribute the emails among the creditors pro rata. The property was sold by Messrs. Blache & Lea/wmont, and the proceeds, amounting to $2460 53, were pond into our hands. Of this amount the sum of $470 50 has been applied by us to the payment of privileged creditors of said Gandolfo, leaving a balance in our hands for distribution of $1989 05. Attachments to the amount of $1400 have been laid on said money in the hands of said Hart and myself in the following suits, &c., and the balance respondent says he is entitled to retain to satisfy his claim against said Gandolfo, amounting to about $120. Respondent further says that said Iiart, having declined to act any further as one of the assignees aforesaid, delivered up to respondent the possession of said money ; respondent is ready to distribute the same as soon as the attachments aforesaid are removed.” It is stated in the printed argument of appellee’s counsel that the creditors did not accept the assignment.

Under these circumstances it is apparent that the respondent got and retains the money only in a fiduciary and confidential capacity. He styles himself an assignee for the purpose of distributing a fund which is the common pledge of Gandolfo's creditors. To offset his own debt (the character and terms of which he does not disclose) against a portion of this common fund intrusted to him for a specific purpose would be a violation of good faith, and compensation rests upon good faith. The case of Bogart, Williams & Co. v. Egerton, 11 An. 73, is in point. See also the recent case of Morgan, v. Lathrop, ante, 257.

It is ordered, that the judgment of the District Court he avoided and reversed; and it is now ordered and decreed that the plaintiffs, Vincent & Co. do have judgment against the garnishee, B, A. Dryer, for the sum of four hundred and twenty dollars and eighty-two cents, with five per cent, interest thereon from December 29th, 1856, until paid, and the costs of suit in both courts.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    Succession of Alethea Shropshire.
    There is no prescription of obligations of individuals for the security of stock subscribed and unpaid, so long as the liquidation of the company continues.
    APPEAL from the District Court of East Feliciana, Ratliff, J.

      W. F. Hernán, District Attorney, for the State, appellant.

      F. P. ElUs and J. B. Smith, for appellees.
   Buchanan, J.

The Clinton and Port Hudson Railroad Company, an insolvent corporation, represented by Bythel Haynes, liquidator, has opposed the final account of administration of John Collins in this succession, and claims to be recognized as a creditor of the same for the sum of three thousand and seven hundred dollars, with interest and special mortgage on certain lands. This opposition was dismissed on an exception that Mr. Haynes had been destituted of his office of liquidator of the said insolvent corporation, by judgment of the District Court.

It was admitted on the trial of the exception, that an appeal was pending in the Supreme Court from the judgment of destitution. That appeal was decided by a judgment of this court rendered on the 20th of April ultimo, reversing the judgment of destitution. Mr. Hmjnes stands, therefore, before this court perfectly competent to represent the rights of the Clinton and Port Hudson Railroad Company, for the purpose of .enforcing all claims against the debtors of the said company.

His opposition is based upon an authentic act passed before John Morgan, notary public of the parish of East Feliciana, on the 26th of September, 1838, whereby James JET. Shropshire and his wife, Alethea Collins, acknowledged themselves jointly and severally bound for the payment of a subscription of thirty-seven shares, amounting to three thousand and seven hundred dollars, in the capital stock of the Clinton and Port Hudson Railroad Company, and also for the payment of any loan that said company might grant thereon; and for further security to said company or assigns, the said Shropishire and wife jointly mortgaged and hypothecated to the said company or assigns, two several tracts of land, particularly described in the act, which act is the evidence of a personal as well as real obligation on the part of the deceased Mrs. Sh'op-shire; obligations legalised by the 20th section of the amended charter of the company. Session Acts of 1834, page 120. It does not appear that any portion of the subscription of James H. Slwopshire, to the stock of the Clinton and Port Hudson Railroad Company has ever been paid; and it is admitted, that he is dead and his estate insolvent.

The plea of prescription made by the administer, is untenable. There is no prescription of obligations of individuals for the security of stock subscribed and unpaid, so long as the liquidation of the company continues. See Jackson Railroad Company v. Estlin, 12 An. 184.

The opposition of the liquidator must be sustained; but the property mortgaged does not appear to have been sold by the administration of Mr. Shropshire. At least, its proceeds do not figure upon this account, in such a form that they can be recognised.

The State of Louisiana, by its District Attorney and Auditor, intervened in this litigation, when the District Court had ruled the liquidator incompetent to stand in judgment; and filed an opposition, to the same effect that he had done, claiming that the State was subrogated to the rights of the Clinton and Port Hudson Railroad Company. The court dismissed this opposition also, and the District Attorney took an appeal.

The appellee has moved this court to dismiss the appeal of the State; but it is unnecessary to examine the grounds of this motion, because we understand the interests of the two opponents to be identical; and our judgment sustaining that of the liquidator, will enure to the benefit of the State as a creditor of the company.

It is, therefore, adjudged and decreed, that the judgment of the District Court upon the opposition of Bythel Haynes, liquidator of the Clinton and Port Hudson Railroad Company, be reversed; that the account of administration herein filed, bo amended by placing thereon the Clinton and Port Hudson Railroad Company as a creditor of this succession, for the sum of three thousand and seven hundred dollars, without prejudice to the mortgage rights of said company, under the notarial act of the 20th of September, 1838, before John Morgan, notary public in East Peliciana; and that the costs of this opposition and appeal be borne by the succession.

Chief Justice Meriiick recuses himself, having been of counsel in similar cases.


author: Merrick, C. J.

text:
    Anna E. Wolf v. Daniel Wolf, her husband.—Price, Walsh & Co., Third Opponents.
    Although there can be no sal_e without a price in money, it does not necessarily follow that the act is void because it wants this requisite of a sale; if there be no just cause for declaring it null, it may exist in another form us an exchange, a donation or a pledge.
    The vendor himself is not permitted to question the sale he has made, unless he has reserved a counter-letter, or relies on the answers of his adversary to interrogatories on facts and articles.
    Neither can any third party question the same without showing not only that it is simulated or fraudulent, but that it is also injurious to such third person who complains of it.
    There is nothing immoral in using the contract of sale as security for money advanced or to be advanced.
    The title of owner, under such a contract, must necessarily embrace that of pledge, and enable a party clothed with the legal title to protect himself for advances, on the expectation of which the sale was made.
    A pledge, as well as a mortgage, may be made to secure an obligation not yet risen into existence.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      M. Grvoot and O. Roselius, for plaintiff and appellant.

      Wolf & Singleton., for appellees.
   Merrick, C. J.

This ease will be best understood by a statement of facts in the order in which they occurred.

On the 29th day of June, 1855, Daniel Wolf by an act executed in the presence of two witnesses and a notary public, made a formal act of sale of a house and certain lots, and certain other real estate inthe city of New Orleans, to Price, Walsh & Go., for the nominal sum of $10,000, acknowledged in the act to have been paid. The plaintiff, Anna R. Wolf, made herself a party to the act of sale and renounced in favor of the purchaser her tacit mortgages and privileges.

On the second day of July, the said Daniel Wolf sold to the same vendees, by another notarial act, a negro woman and certain household furniture, and a carriage and horses, for the ostensible sum of $4212. The wife also signed the act renouncing, as in the former instance. The property purported to be sold belonged to the community existing between Wolf and wife.

On the first day of October, .1855, D. Wolf & Go. owed Price, Walsh & Go. $14,029 92, and on the 30th of the same month, they owed $21,757 64. This amount appears to have been subsequently increased by the payment by Price, Walsh & Go. of certain bills due to the vendors to D. Wolf of the furniture. Wolf, who traded in Mexico, left the house where he resided, which was on one or more of the lots sold to Price, Walsh & Go., on the fifth day of July, 1855, taking his wife with him. Mrs. Wolf returned on the 19th of October, and then removed from that place to the Florence House.

Wheri Wolf left for Texas, Samuel Loakhcvrt had charge of the house and furniture for him. Loakha/t't subsequently, on being informed that the property belonged to Price, Walsh & Go., received his wages from and held the property for them.

On the 13th day of February, 1856, Anna PL Wolf instituted a suit for a divorce against her husband, and joined Price, Walsh & Go. as eo-dofendants, alleging that said acts of sale were null and void, and were never intended as a bona fide sale, no value having been received for the same. She prayed that Price, Walsh & Co. “ be made parties to test the validity of the two acts of sale.”

The court having made an order allowing the plaintiff one hundred and fifty dollars a month alimony, on the 24th day of March, 1856, she issued an execution under which she caused to be seized “ all the goods, chattels, lands, tenements, rights, credits, bills of exchange and promissory notes and property of every kind whatsoever in the hands of Price, Walsh & Co.,” and propounded interrogatories to them on facts and articles, on the third day Of April, 1850.

On the 16th day of April, Price, Walsh <& Cot answered the interrogatories, in which they denied being indebted to Daniel Wolf, but on the contrary answer that Wolf was indebted to them in a sum of over $20,000, and that they are upon his paper for over $30,000 more; that they refused to make these advances for Wolf, unless he would make an absolute sale of his property, specified in the two acts of sale to them, that the sale was made in order to secure them any advance they might make; that as soon as Wolf shall pay them the money they have advanced, a portion of which was advanced to pay notes secured by the vendor’s privilege on some of the property contained in the acts of sale, they will re-transfer said property to said Wolf; hut until that is done, they hold it as security for their advances, and that they suppose the property worth not over $10,000, if it is worth that much.

After the filing of the answers to the interrogatories, a new fim'i facias issued for the succeeding instalment of alimony, and on the third day of May the Sheriff seized, under the first writ, the household furniture sold to Price, Walsh & Co., then on the premises sold them, and in the custody of Samuel Loclchao't, as their agent. On the 22d day of May, Price, Walsh & Co. inter, vened as third opponents, claiming the proceeds of the sale. The furniture brought, after deducting costs, $1054.

The matter in controversy is the right to this fund. The Judge of the lower court awarded it to Price, Walsh <& Co., and the plaintiff appealed.

The only question of fact in the case, about which the parties differ, is as to who had possession of the movables at the time the seizure was made.

We think Price, Walsh & Co. must be considered as the possessors of the personal as well as real property, for the following reasons:

1st. They bought by notarial act, which.prima facie gave them the possession of the real estate, and the movables were in their house. O. C. 2455.

2d. Samiuel Loclehart says expressly, that at the time of the seizure of the property, he was keeping it for Price, Walsh & Co. His language is: “When the Sheriff seized the property, I was keeping it for Price, Walsh & Co.”

The plaintiff considered the property in the possession of Price, Walsh & Co. when she brought her suit to “tost the sale” and when she propounded the interrogatories to them, their answers confirming such possession.

The appellants raise the following questions of law in this case. They maintain :

1st. That the pretended sale of the property by Daniel Wolf to Price, Walsh & Co., was a mere simulation; no price was paid, nor is it pretended that any price was agreed upon.

2d. That Price, Walsh & Co. have no privilege, for in the first place they have no act of pledge, and in the second place, even if the simulated act of sale could be considered as a diguised act of pledge, it is null and void for want of actual delivery, possession being the essence of the contract, and also because there was -no existing principal obligation to which the contract of pledge could attach.

3d. That the renunciation of the mortgage by the wife produced no effect.

We have Already said that wo think that Price, Walsh & Go. had the possession of the property at the time of the seizure. We will .consider the legal objections with reference to this fact.

I. It is true there can be no sale without a-price in money, but it does not necessarily follow that an act is void bocause it wants one of the essential requisites of a sale. If there is no just cause of declaring it null, it may exist in another form, as an exchange, a donation, or pledge. Rhodes v. Rhodes, 10 L. R. 85; Williams et al. v. Sch. St. Stephen, 1 N. S. 417; 2 N. S. 22; 2 Rob. 101. But as the vendor himself is not permitted to question the sale which he has made, unless he has reserved a counter-letter or interrogates his adversary under oath on facts and articles, so also can no third party question the same without-showing both that it is not only simulated or fraudulent, but that it is also injurious to the party complaining. 1 N. S. 160 ; 2 Rob. 94; 18 L. R. 388. Neither does it follow, because parties have clothed their contract in one form instead of another, that it will not avail in either. There is no such penalty declared by the law-giver, and the courts cannot supply it. Then is there anything immoral in using the contract of sale as the security of money advanced or to be advanced in good faith ? We think not. The Civil Code has itself traced certain provisions of law in regard to sales with a power of redemption. See Art. 2545 et seq. If the vendor chooses to trust so much to the vendee as to make him a sale of the property without any security for the price, we know no law to prevent him. As he may make an absolute donation of his property, saving the rights of parties injured, we see no reason to declare an act void because the vendor has contented himself with a false cause, a fictitious price, instead of inserting the true cause of the contract. C. 0.1894. The act, therefore, on which Price, Walsh & Go. roly, being clothed in the form of a sale, they stand before us prima facie as possessing the highest title to the property known to our law, viz, as absolute owners of the entire thing with all its accessories.

II. It is trae that Price, Walsh & Go. have no act of pledge eo nomine; nevertheless, as has just been observed, they have the absolute ownership of the thing, the dominium which includes the jura in re. Their higher title of owner will enable them to hold so much of the thing or its price as is due them, against any person who seeks to deprive them of the same by an inferior title. 1 N. S. 417. The title of owner must necessarily embrace that of pledge, as the pledgor can dismember or carve this lesser interest out of his right, and still have a right existing in the thing, as against the pledgee. Mackeldey book 1, -No. 239, P. Speciale. But it is said there was no existing principal obligation to which the pledge can attach as accessory. When Daniel Wolf conveyed this property to Price, Walsh & Go., nothing remained in abeyance. The property became (so far as all the world was concerned) the property of Price, Walsh & Go. If they had sold it to a bona fide purchaser, he would have held it; if they had mortgaged or pledged it, the mortgage or pledge would have been good. Clothed as they were with the legal title, there was nothing which prevented them from continuing so to hold to protect themselves for the advances made by them, on the expectation of which the sale was made. A mortgage may be made to secure an obligation not yet risen into existence, and we find no principle of law which prevents a pledge being made for the same purpose. 3259, 3251 O. O. We think, therefore, that in the present instance, Price, Walsh & Go. may be considered as possessing under their absolute title as pledgees of the property, and that the proceeds must first be applied to the extinguishment of their debt before it can be applied to the execution of the wife, considered as a third person.

III. As the husband is the head and master of the community, and as he had the power to pledge or sell the effects of the community, or even donate the movables by particular title, without the assent of the wife, we have considered the case without reference to the renunciation of the wife made in the two acts of sale. C. C. 2373.

Inasmuch as Price, Walsh & Go. have, as just observed, a better title to the proceeds of the property, in virtue of the acts of sale in their favor, than has the plaintiff under her garnishment and seizure, the judgment of the lower court must be affirmed.

Judgment affirmed.

Spoitord, J., dissenting. Price, Walsh & Go., third opponents, claim a privilege upon the proceeds of certain furniture, which has been seized and sold under execution upon a judgment obtained by Anna E. Wolf v. Paniel Wolf.

The sole question then is, did Price, Walsh & Go. have a privilege upon the seized furniture at the date of the seizure ? and, quoad this question, they are plaintiffs and must prove their case.

To say that they were owners of the furniture, would be to contradict their own allegations and to give them more than they ask. By submitting to the seizure and sale, by claiming a privilege on the proceeds, and by the whole tenor of their opposition, they have admitted, and are concluded by the admission, that the furniture was the property of the seized debtor.

Now, have the opponents a privilege ? Privileges are stricti juris, and exist only in cases for which our law has made express provisions, and then only by virtue of an exact compliance with the requisites of the law to create a privilege.

The only modes by which the opponents pretend to have acquired a privilege, are two: first, by paying the vendors who sold the furniture to Wolf, and thus becoming subrogated to the vendors’ lien, and, secondly, by pledge.

On the first point, there is no proof to authorize for a moment the inference of a subrogation to the vendors’ privilege.

On the second, the proof is far from satisfactory. There is no act of pledge. The act of sale proves nothing, for it is acknowledged to be a sham. The answers of Price to the garnishment, whieh he offered in evidence on the opposition, do not, in my opinion, establish a valid contract of pawn. They prove no definite principal obligation, which is essential to support the auxiliary contract. They establish no delivery of the furniture. The witness Loclchan't does not, to my mind, prove any delivery of the furniture to Price, Walsh & Go. All his testimony must be considered together, and, so considered, fails to show such a tradition as is essential to constitute a pawn.

My impi’ession is, that the judgment should be reversed and the opposition dismissed.

Vooriues, J., concurring.


text:
    F. M. McIntosh v. Merchants’ and Planters’ Insurance Company—On opposition of Angelrodt & Barthe.
    The decision in the case of McIntosh v. Merchants' a/ncl Planters* Insurance Co.., 9fch An. 403, that the guarantee notes belonging to the company were not liable to be seized and sold for the benefit of a single creditor, re-exmined and affirmed.
    The refusal of the court in that and in the present case, to apply the privilege accorded by Art 722 of the Code of Practice, turns upon the particular facts of these cases, the assets having a peculiar character and destination, rendering it impossible to make them the subject of an ordinary seizure, at the instance of a creditor of the company.
    The charges for professional services in the settlement of insolvent estates, ought to be in proportion to the results of the liquidation.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Durant & Hornor, for plaintiff.

      G. Sehmidt, for opponents and appellants.
   Buchanan, J.

Angeb'odt & Bcwthe prosecute this appeal upon two grounds :

1st. The refusal of an allowance of a privilege to themselves, for the amount of the judgment debt of the company to them, for which they had (previously to the commencement of these proceedings in liquidation) made a seizure under fi. fa. of all the assets of the company, being sundry guarantee notes, so styled, subscribed by various persons in favor of the company.

2d. The allowance of three thousand dollars to Messrs. Durcmt & Sornor, counsel of the liquidator, for professional services rendered in the liquidation.

The point of law involved in the first of these questions, has been settled in the decision of this court upon a former appeal, reported in 9th Annual, 403, after careful and protracted consideration, with the unanimous concurrence of the court, although there was a difference of opinion upon other questions then at issue. The learned counsel of the appellant has not convinced us that our former decision on this point was erroneous. For the purpose of preventing misapprehension as to the extent that that decision has the authority of precedent, it is, however, necessary that we should add, that the refusal to apply the privilege accorded by the 722d Article of the Oode of Practice to the seizures effected by the judgment creditors of this insolvent Insurance Company, before its affairs were put into the hand's of a receiver under a judicial order, turned upon the peculiar facts of the case. We held, in the case quoted, that the assets thus seized had a particular character and destination which rendered it impossible to make them the objects of an ordinary seizure at the instance of any creditor of the company, while the company was transacting business under its charter. The reasoning of the court upon that subject is entirely applicable to the seizure of Angeb'odt & Barthe; and the difference in the facts sufficiently accounts for the apparent difference of the doctrine from that of the case of Goubeau v. The Nashville Railroad Company, in 6th Robinson, and the other cases quoted in appellants’ 'brief.

Upon the 2d ground of appellants, the allowance for professional services of counsel of liquidator, the total amount of receipts shown by the tableau of distribution, is $11,877 62, against which the law charges (including the attorney’s fee complained of) are $5,569 25 ; leaving $6,308 37 to be divided among §66,920 69, due twenty-seven creditors, after five years of litigation.

The forty-seven suits mentioned in the judgment of the District Court, as having been instituted by the receiver, were suits on promissory notes against the maker, for all of which the same printed form of petition might have sufficed, with blanks for names, amounts and dates.

At all events, we cannot too often repeat that the charges of the profession, in the settlement of insolvent estates, should bear some sort of proportion to the results of the liquidation.

We think one thousand dollars a reasonable remuneration to the counsel of the liquidator, under the circumstances.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended bjr reducing the fee of the counsel of the liquidator, Messrs. Durant & Honor, for professional services, to one thousand dollars, and that the costs of the opposition of Angeh'odt & Ba/rthe, and of this appeal, be borne by the mass.


text:
    Stanislas Weber v. Louis Coussy, f. m. c., et al.
    I'he warrantor, who is not represented by counsel at the trial, is not bound by admissions made by the other parties of the contents of notarial acts not produced in evidence.
    When the defendant in a petitory action is evicted from land upon which he has for several years paid the taxes, the writ of possession should be suspended until the taxes are refunded to the defendant as negoUovvm gestor of the plaintiff.
    Under the Code of 1825 the purchaser, in case of eviction, can recover from his vendor only such increase in the value of the property as the parties had in contemplation at the time of the
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      J. Livingston, for the city of New Orleans, appellant.

      G. Duplantier< for plaintiff.

      H. Filleul, for defendant.
   Buchanan, J.

This is a petitory action for a lot of ground in the Second District, late First Municipality, of the city of New Orleans. The plaintiff and defendant both trace title to the same source — the late corporation, Municipality No. One — the former by auction sale of the 2d March, 1837, confirmed by notarial act of the 22d of the same month to Ham/uel Harris, the latter by notarial act of the 25th March, 1846, to Pcmlin Dwrel.

Defendant called in warranty his vendor, Ohm'les Gustave Durel, who called in warranty his own vendor, Widow Jea/n Ursin Durel, who called in warranty her vendor, Paulin Durel, who called in warranty the city of New Orleans, as succeeding to the obligations of the late Municipality No. One.

The case was tried in presence of the counsel of plaintiff and of defendant alone, as appears by the record; the city, who is appellant from the judgment rendered, not being represented at the trial, a fact which is material, because much of the evidence, and indeed all that portion of it which fixes liability upon the city, is supplied by admissions made on the trial of the contents of notarial acts which were not produced. These admissions are only binding on the parties who made them, and do not bind the appellant.

The appellant was opposed in interest to both the plaintiff and the defendant. Both those parties were bound to make out their case by legal proof; the plaintiff in order to have judgment against defendant, and the defendant in order to have judgment over against his warrantor, the appellant. Now had such legal proof been offered in the absence of the warrantor, as the case appears to have been regularly called for trial, the warrantor could not be allowed to take advantage of his absence to repudiate the effect of such legal evidence. But an admission by counsel of plaintiff and defendant of the contents of authentic acts, which could easily have been produced, is a very different thing. The warrantor had a right to have those muniments of the titles of the parties produced on the trial and spread on the record as the only legal evidence of his contracts, and of the confliction of the titles of the parties. His adversaries had no authority to admit away his case.

The court below gave judgment in favor of plaintiff for the land claimed, as having the oldest title, and gave judgment over against the four warrantors of defendant, in the order above named, the city being the last, for two hundred and eighty-five dollars, being the price which defendant had paid his vendor, with twenty-five dollars for taxes paid, and one hundred and fifty-dollars damages for the increased value of the lot.. The city alone has appealed, and a careful examination of the case has satisfied us that the judgment iá in several respects erroneous, and that the city is entitled to a nonsuit.

The amount of the price for which the appellant, as last warrantor, is condemned, is taken from a copy of a notarial act of sale from G. G. Durel to defendant, annexed to defendant’s answer.. But if wc look at the description of the land conveyed in that sale we find that it is just double the quantity which is claimed by the plaintiff. Plaintiff’s petition calls for a lot at the corner of Broad and Dumaine streets, fronting twenty-nine feet and eight inches on Broad by one hundred feet on Dumaine. But the sale from G. G. Durel, annexed to defendant’s answer, calls for three lots at the corner of Broad and Dumaine streets, each lot having a front of thirty-four feet four inches on Dumaine street by a depth of fifty-nine feet four inches, which is exactly equal to two lots of twenty-nine feet eight inches front on Broad street by a depth of one hundred feet. But even if this wore otherwise, and if the land from which defendant is evicted were the very same quantity which he purchased from Charles G. Durel, this would only establish Ms right to recover $285 from his vendor. It would be no criterion by which to establish the sum to be paid by Widow Durel to Ghandes Durel, or by Justin Durel to Widow Durel, or by the city of New Orleans to Justin Durel. Each of those parties would be only bound to restore the price which he, she or it had received, not the price which his vendor, or the vendee of his vendor, had received. 6 N. S. 559.

Now there is nothing in the record, given in evidence or not given in evidence, nor even in the admissions on trial to which we adverted above, giving us the least description of the 'quantity of land solfl by any of the last three warrantors, including the appellant, nor of the price received by any of them.

Again, as to the taxes paid by the defendant upon the land from which he is evicted. These were paid by him for the benefit of the plaintiff, if the plaintiff was the owner of the property. Instead of being charged against defendant’s warrantors it should have been charged against plaintiff, and the writ of possession suspended until it was refunded to defendant, as negotionm gestor of plaintiff. It would truly be very convenient for many an owner of swamp lots around New Orleans to suffer another person (who perhaps had acquired them at a tax sale) to pay the taxes from March, 1846, to December, 1855, and just before the ten years’ prescription had accrued, to step in with his petitory action and recover the land free of all arrears of taxes.

The judgment for $150, or up-wards of fifty per cent, upon the cost of the lot, as damages for increase in its value since its purchase by defendant, is unwarranted by law. The Code of 1825 has omitted the provision of that of 1808, which entitled the purchaser to recover from his vendee, in case of eviction, the increased value of the thing sold since the sale. See 9 L. R. 551. The only increase that can now be allowed is such increase as the parties had in contemplation at the time of the sale. 18 L. R. 150. Besides the evidence on this subject of increase is only applicable to the last sale of this property. There is no ground in the record for doubting the good faith of the appellant or any other of the warrantors.

It was perhaps unnecessary to remark upon the amount of the judgment against the warrantors, for in fact there is no case of warranty made out against the appellant. In the first place the plaintiff did not offer in evidence his own title. He describes it in his petition as annexed thereto. But he contented himself on the trial with the admission of defendant that he (plaintiff) had purchased the land, the names of the vendor and the notary, and the date of the sale.

The copy of the act annexed to the petition was withdrawn from the record by plaintiff’s counsel after the appeal was taken, as appears by a receipt at the foot of the petition. No copy of the paper is, therefore, in the record. There is no proof of plaintiff’s title as against the appellant.

Secondly, the the title of the defendant, though annexed to her answer and copied in the transcript, was not offered in evidence on the trial; nothing but an admission of plaintiff, which, like that of plaintiff in favor of defendant, entered into no particulars except the names of the notary, the seller and the purchaser, and the date of the sale.

As to the three other warrantors, Mrs. Widow Du/rel, Paulin Durel and the city, the conveyances from them respectively were neither annexed to the calls in warranty nor offered in evidence. The record shows nothing in relation to them except admissions of plaintiff and defendant, precisely similar in form to those already mentioned.

It is, therefore, adjudged and decreed, that the judgment of the District Court, so far as it concerns the city of New Orleans, appellant, be reversed, and that there be judgment in favor of the city of New Orleans, appellant, called in warranty herein, as in case of nonsuit, with costs in both courts.


author: Buchanan, J. Spoitord, J.

text:
    Succession of George Foulkes.
    The commission of the curator of an estate cannot be calculated upon debts included in the inventory, but either fictitious in character or exaggerated in amount.
    The claim of the widow under the Homestead Act of 17th March, 1852, yields to the claim of the minor whose tacit mortgage dates from a period antecedent to the passage of the Homestead Act.
    The claim of the widow under the Homestead Act, is superior to all privileges created previously to the death of the husband and subsequently to the- passage of the Act, except that of a vendor, ner privilege yields to funeral expenses, expenses of last illness, and law charges growing out of the administration and settlement of the succession.
    It is the duty of the representative of an estate, upon the rendition of an account, to support every charge against the estate by a proper voucher.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Durant & Uornor, for E'. Howes, tutor, opponent and appellant.

      Benjamin, Bradford & Finney, for curatrix
   Buchanan, J.

The minor children of John Foulkes, deceased, have a legal mortgage upon the property of the deceased George Foulkes, who was their tutor, for the sum of six thousand and fifty-six dollars,' with interest, by judgment of court; which mortgage, by the terms of the judgment, took effect from the 20th December, .1848, the day that George Foulkes qualified as their tutor. C. C. 354.

The widow of George Foulkes has rendered a final account of her administration as curatrix; from which account it appears that the estate is insolvent.

The present tutor of the minor children of John Foulkes opposes the three following- items of the account of administration:

First, The item—
‘■'■Johanna IL Foulkes, curatrix, commission................... $ 242 50 ”
Second, The item—
Johanna H. Foulkes, her widow’s portion..................... 1000 00 ”
Third, The item—
“Proceeds of real estate............................$4112 80
“ Less fees and expenses of sale and notarial fees........ 391 40
-$3721 40”

I. Of the curatrix’s commission:

Article 1187 of the Civil Code declares-; “If, at the rendition of this account by the curator to the Judge, at the end of the year- after his appointment, the Judge is satisfied that the succession is entirely settled, and that it is not necessary to prolong the administration, he shall allow the curator a commission of two and a half per cent, on the amount of the inventory of the effects of the succession, or of the portion by him administered, deducting the bad debts.” The petition accompanying this account styles it “ a final account and tableau.” The commission of $242 50 charged, is 2J per cent, on the total amount of the inventory, which is $9701 04. But it appears from the account, compared with the inventory, that there is a portion of the property comprised in the inventory, viz, cattle, estimated at $470, and a cash balance in bank of $8 17, which is not accounted for.

Again, the inventory comprises two active debts or claims of the estate, which are stated as follows ;

A bill against Mr. J. Y Egwha for........................... $ 490 00
A bill against the Police Jury of Algiers, for................... 1641 12
The aggregate of which two claims is............. $2131 12
But the account shows that these two claims have been collected as
follows: From the Police Jury......................$287 47
Prom Egaña..................................... 290 00
Total......................... 577 47
Showing an exaggeration in the inventory, of.................. $1553 65

Now, it is not to be presumed that the curatrix collected less from these debtors of the succession than was due. Indeed, it appears from the account that one of them (the Police Jury debt) was collected by suit. It follows, therefore, that no commissions are due for the $1553 65, which was exaggerated and fictitious. For a fictitious debt is, most strictly speaking, a bad debt; and bad debts are to be deducted, say the Code, in calculating commissions.

We deduct, therefore, from the charge for commissions of curatrix,

1st — Two and a half per cent, on $470 00....................... $11 75
2d — Two and a half per cent, on $1553 65....................... 38 82
$50 57
And we charge the curatrix, 3d, in deduction of her commissions, with the cash balance in Bank of Louisiana not credited in the account..................................................... 8 17
Total........................... $58 74

For which amount the first ground of opposition is sustained.

II. The evidence in regard to the circumstances of the widow and curatrix, is, that she has no property, and makes a living by sewing. She is, therefore, within the terms of the widow’s Homestead Act of 17th March, 1852. But her claim under that law cannot be allowed to come in competition with that of the minors of John Foullces, whose tacit mortgage dates from a period antecedant to the passage of the Homestead Act. See the case of Taylor's Succession, 10 Annual, 509 ; also Milne v. Schmidt, decided May term, 1857.

It is argued that the widow’s privilege under the Homestead Law outranks all other privileges. But this is erroneous. Our construction of this law is, that the destitute widow’s portion primes all privileges created previous to the death of the party, and subsequently to the passage of the Act of 1852, except that of a vendor: but that it yields to funeral expenses, expenses of last illness and law charges growing out of the administration and settlement of the succession. For if the contrary doctrine were held, the absurd consequence would follow, in case the movables were not sufficient to satisfy the widow’s homestead and the general privileges, that the latter, being preferred over all mortgages, might be thrown back upon the proceeds of immovable property, to the prejudice of mortgagees, who yet, by the age of their mortgages, were superior in rank to the widow’s homestead, and would have been preferred to it in a contest for the proceeds of the immovables.

The second ground of opposition is sustained, so far as it relates to the preference given by the account to the widow’s homestead over the minors Foullces.

III. The third item of the account opposed by the appellant, is the deduction made from the gross proceeds of the real estate for “ fees and expenses of sale, and notarial fees, $391 40.” This item is clearly inadmissible. Two bills, that of the notary who made the inventory of this estate, and that of the auctioneers who made the sales of its effects under the orders of court, are jumbled up in one lumping charge. The note of the evidence, on trial of opposition, informs us, indeed, that $250 of this charge are for account of the notary, and $141 40 for the auctioneer. But no items, no particulars, are furnished, any more on trial than in the account filed.

This is not the way that an officer of the court should account for funds entrusted to him in his fiduciary capacity. The 6th section of the Act of 1855 to regulate and define costs and fees, (Session Acts, page 163,) says: “ No person shall be bound to pay any costs or fees until the officer claiming the same shall deliver to the person against whom the fees may be charged, an explicit fee bill, signed with the officer’s name in full, officially, and on payment the officer shall be bound to give a receipt on said fee bill, if so required.” Here we have the statutory form of a voucher for the payment of fees to officers whose fees are fixed by law, when such payment has been made by a party who is bound by law to render an account. And the propriety of enforcing that law appears in this case. For we find, by an inspection of the record, that the legal fees of the notary for the original and for a copy of the inventory, would not have exceeded thirty dollars; and that the legal commissions of the auctioneer, for selling the. property of which the proceeds figure in the account, would have been about the same sum. But certified bills of particulars, which would have alone enabled us to say precisely how far this charge exceeds the rate fixed by law, are wanting.

It seems that the notary paid over to the curatrix the proceeds of sales, with a deduction of a round sum, without specifications, for his own fees and those of the auctioneer; that the administratrix received this payment precisely as it was made, and reports it, in the same form, to the court. No voucher appears in the record in the shape of a notary’s bill or an auctioneer’s bill of any kind. This is a palpable evasion of the law, which, if encouraged, will make the fee bill a perfect nullity. And it would be a premium upon negligence and a precedent of evil example, if we referred the case back to the administratrix for an amendment of the account in this particular.

The District Judge directs the notary’s bill to be reduced to Ms legal fees, but does not say what those legal fees amount to. The record affords imperfect data for ascertaining those legal fees of the notary, and still more imperfect for those of the auctioneers. The judgment in this form can certainly never T>e the basis of an execution, nor do we see how we can render it more definite. It was the duty of the administratrix to have supported every charge against the estate by a proper voucher; to have made that plain which she has involved in perplexity and obscurity. Not having done so she cannot be allowed to retain the funds .of the estate in her hands until she shall produce vouchers upon which we can act understandingly. This ground of opposition is sustained. See 11 An. 435.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed; that the account and tableau filed by the curatrix of of this succession bo amended by reducing the commissions of the curatrix to the sum of $183 76; that the net proceeds of movables, and the moneys collected according to said account, amounting to $1308 64, be applied to the payment of the following* general privileges:

1st. Funeral expenses, (unopposed, see O. C. 8160, 3161,):
Funeral.....................................$132 00
Tomb....................................... 112 16
Railing round tomb........................... 69 50
- $313 66
2d. Law charges:
Costs Supreme Court......................... $24 20
“ Second District Court.................... 94 25
“ “ “ “ 20 50
“ “ “ “ .................... 60 80
“ “ “ “ 58 35
“ << “ “ 19 65
“ “ “ “ 4 50
Sheriff’s fees................................. 78 10
Commissions of curatrix....................... 183 76
Counsel of curatrix........................... 500 00
Attorney of absent heirs....................... 25 00
Appraisers.................................. 16 00
- $1085 11
3d. Expenses of last illness — doctor’s bill..................... 50 00 $1448 77

That the deficiency of movables to pay the general privileges above specified, being $140 13, be paid and satisfied out of the proceeds of real estate, being $4112 80; that the surplus of the proceeds of real estate, after satisfying said privileges, being $8972 67, be paid to the opponent and appellee, Robert Howes, tutor, in satisfaction pro tanto of the legal mortgage of the minors Foullces upon the property of the deceased George Foullces, as fixed by judgment of the Second District Court of New Orleans. It is further ordered and decreed, that the credit or deduction of $391 40, made by the curatrix for fees and expenses of sale and notarial fees, be rejected and disallowed, and that the charge of the curatrix of $1000, for widow’s portion, be also disallowed, the proceeds of movables being exhausted by preferred charges above mentioned, and those of the immovables by the preferred claim of the minors Foullces. It is lastly decreed, that the costs of the District Court be defrayed by the succession, and those of appeal by the curatrix, appellee.

Spoitord, J.

The property of the succession consisted of immovables, all* of which were acquired before the passage of the widow’s Homestead Act of March 17th, 1852, (p. 171,) and of movables, all of which were acquired since the passage of that law. The minors’ tacit mortgage of course rested on the immovables alone.

Now suppose that, on the day of the passage of that law, and before its promulgation, George Foullces had died, it is plain that, however hard we might deem the law, the funeral charges, judicial charges, expenses of the last illness, wages, of servants, &c., privileged generally on movables and immovables, would have ranked the minors’ tacit mortgage, and been paid out of the immovables by preference thereto, there being no movables.

It was competent for the Legislature to change the law and to create a new privilege which should surpass all others; hut in the Succession of Taylor, 10 An. 509, we held that the widow’s Homestead law was only intended to operate prospectively, that is, it did not prejudice the claims of prior creditors to he paid out of funds arising (as in that case) from the sale of property which the deceased owned prior to the passage of the Act.

The same rules of interpretation which dictated that decision compel me to the conclusion that property acquired or made after the promulgation of the Act of March 17th, 1852, should submit to the dominion of the laws in force at the time of its acquisition. Thus and thus only can the rights of all parties be harmonized.

The movables (out of the proceeds of which the necessitous widow prays to he paid her privileged claim) were the product of her husband’s earnings whilst a law was in force which assured her that in case of his death the sum of $1000 should be paid to her, “in preference to other debts except those for the vendor’s privilege and expenses incurred in selling the property.”

I find myself unable to discover in these plain and unambiguous words any other meaning than that the Legislature intended thereafter, and out of acqvfisitions thenceforward made, to secure the indigent widow a little bounty in preference to every species of adverse claim, except that of the privileged vendor of the property thus acquired, and that which must arise from the cost of selling the property to pay her. Because I think they ought not to have given her a preference over funeral charges, law charges, &c. I cannot say they did not. Nor do I see that the minors are injured by the operation of a law which left their rights, as they existed at the time of its passage, intact.

I am, therefore, compelled to dissent from the judgment just pronounced.


text:
    Theodore Bruning v. New Orleans Canal and Banking Company.
    The apparent servitude of passage or right of ivay is an appurtenance of the property sold, and any sale implies, without its being expressed, a warranty against acts of the vendor, that would ' prevent or interfere with the full enjoyment of the thing sold.
    Any citizen aggrieved by a public nuisance, is entitled to an action of damages against the offending party, especially if such nuisances involves also the breach of a private warranty.
    Usurpations and wrongs to private rights of property, cannot be justified by considerations of benefit to commerce, and the right of expropriation of private property can only be exercised according to the forms of law.
    APPEAL from the Fourth District Court of Now Orleans, Reynolds, J.

      LaA'ue & Whitalcer, for plaintiff and appellee.
    Benyamin, Bradford & Finney, for defendants.
   Buchanan, J.

On Wednesday, the 28d day of April, 1845, and the succeeding days, the defendants offered for sale at public auction at the Arcade Exchange in Magazine street in New Orleans, through Hewlett & Genas, auctioneers, 400 lots of ground situated in the continution of the suburbs Saulet, Lacourse and Delord, in the roar of the city and adjoining the canal of the defendants on both sides. This auction sale was made according to lithographed plans, which were exhibited to the bidders and which are in evidence. Two of those lots, being those numbered one and two, in the square bounded by Florida Landing, Derbigny, Claiborne and Cypress streets. Lot No. 1, forming the corner of Florida Landing and Claiborne street; and lot No. 2, fronting on Florida Landing adjacent to lot No. 1, were adjudicated (with others) to George W. Man-tin. The defendants, in a notarial act of sale passed before MeCay, notary, on the 1st of May, 1845, in pursuance of said adjudication, conveyed to said Man-tin the said two lots of ground, by the above description, together with all the privileges and appurtenances thereunto belonging.

The lots thus sold, having come, by several mesne conveyances, into the possession and ownership of Biehard W. Collins, were by him sold, on the 14th May, 1849, to the present plaintiff, together with all the appurtenances unto said lots belonging, or in anywise appertaining, with a special transfer to the plaintiff of all the vendor’s rights and actions of warranty against all the former proprietors of the property conveyed.

The premises thus purchased have been improved by plaintiff, who has erected thereon a dwelling house and grocery, and has ever since occupied the samé.

The evidence establishes without dispute, that the defendants,. long subsequently to the sale made by them to Man-tin, as aforesaid, and about the time that plaintiff acquired the property, have enlarged their canal at the junction of Claiborne street and Florida Landing, by excavating a basin in the form of a half moon, on the northern margin of the canal, and extending across the whole width of Florida Landing, which has thus been appropriated by defendants to their own use, by converting it from land into water, and from a public highway, as represented on the plan by which they sold the propex’ty now occupied by plaintiff, into a navigable canal and hax’bor for vessels. This is not only an usui’pation of soil dedicated to public use, but a manifest violation of the defendants’ obligation of warx-anty under the public sale of the 23d of April, 1845.

The dedication of the soil of Florida Landing, as far back from the l'iver as the plaintiff’s property, and much farther, to the public use as a stx’eet, was made by defendants in the most solemn and authentic form. The recitals in the deed to Man-tin show, that the lots sold formed part of a tract of land purchased by defendants from Madame Louise Delord Sanpy, wife of Dominique Framgois Burthe, by act before Stringer, notary, on the 28th of May, 1831 ; and that the division of the tract into squares and streets, according to the description in the deed, was by plan made by George T. Dunban-, surveyor of the Second Municipality, on the 1st of February, 1845, which is adopted by the vendors, and of which plan the lithographic plans in evidence are extracts. Those lithographs and the parol evidexxce on trial, show moreover that Florida Landing is a prolongation or continuation of Julia street towards the swamp in the rear of the city. The entire obstruction of Florida Landing by the defendants, therefore, impedes necessarily, the di’ainage of the city, by cutting off the dischax’ge of all the water that is carried down the gutters of Julia street; for it is proved the defendants do not allow this water to drain into their canel. Accox'dingly, the witnesses on both sides px’ove that the water which comes down Julia street in rains is thrown off, laterally, through Magnolia, Vine and Willow streets, into Cypress street, which is thus made to drain two streets instead of one, and that the consequence is an inundation and a stagnation of water, highly prejudicial to the health, comfort and interest of the citizens in the neighborhood of Florida Landing.

The city council, as guardians of the public property, was memorialized many years ago by individuals who represented that the public rights were invaded by the excavation of the basin in question; but the committee on streets and landings, to whom the subject was referred, having reported unfavorably upon the memorial, nothing was done.

We are not disposed to say, because the decision of this cause does not require it, whether the initiative in the abatement of the nuisance of an obstruction of the public highway, is exclusively reserved to the city council, or whether proceedings might not be commenced for that purpose by individual citizens who were aggrieved by the nuisance. But we assert, without hesitation, the right of any citizen so aggrieved, to an action in damages against the offending party, especially if, as in the present case, the public nuisance involves also the breach of a private warranty. A street is every valuable to the proprietor of land adjoining it, as a passage for ingress and egress to his property. The defendants sold to the author of plaintiff’s title, the land with all its appurtenances. As an illustration of the meaning of this phrase, another deed by these defendants to John Uoey was given in evidence, conveying other lots in the same square fronting on Florida Landing, at the corner of Derbigny street. The defendants sell to Uoey the lots, according to Dunbm''s plan, together with all the rights, ways, privileges a/nd appw'tenances thereunto belonging, or in anywise appertaining.

The description of what was sold is here more full, but it is substantially the same. The apparent servitude of passage or right of way, is clearly an appurtenance of the property; and it is scarcely necessary to add, that in Louisiana every sale implies, even without its being expressed, a warranty against acts of the vendor that would prevent or interfere with the full and perfect enjoyment of the thing sold.

The learned counsel for the defendants argues that his clients were justified in appropriating Florida Landing as they have done, because, by the ninth section of their charter, (Session Acts 1831, page 44,) they had the right of expropriating land to the width of one hundred and twenty feet on each side of their canal, which (by the 8th section) was to be sixty feet wide ; and because, by the 26th section of the charter, the land thus acquired by forced sale or otherwise to the extent of 120 feet on each side of the canal, shall belong to the State of Louisiana in thirty-five years from the date of the charter.

It seems to have escaped the attention of the learned counsel, that the ninth section expressly reserved in its concluding clause to the proprietors of lands appropriated, a right of communication with the canal, and with the said route, and this in the whole extent of said lands, which shall be considered as riparious to said canal.

The right of way is here expressly reserved to the adjacent proprietors, even over lands expropriated; and that, to the magnificent extent of one hundred and twenty feet. For the charter says, that their lands shall be considered ripan-ious; that is to say, the intervening space between them and the canal (120 feet) is assimilated to the banks of a navigable river, of which a prominent legal characteristic is, that their use is public. O. O. 440. Apart from this consideration, however, the argument derived from the ninth section of the charter, has no force, because the defendants do not occupy towards plaintiff the attitude of a claimant of land for the purposes of their charter under that section.

The charter granted by the Legislature on the 5th of March, 1831, obliged the corporation to construct, within the space of sia> years from the passage of the act, a canal of certain dimensions from some part of the-city or suburbs of New Orleans, above the Gravier canal (Poydras street) to Lake Pontchartrain, with one or more basins, and a sufficient breakwater to facilitate the ingress and egress of vessels; and for the accomplishment of this object, the corporation was authorized to acquire lands adjoining the route of the canal by contract, or by a certain form of expropriation therein prescribed.

Now this record shows us that in May, 1831, two months after the passage of the charter, the defendants acquired by contract from Mrs. Burthe, land, including the lots now possessed by plaintiff, adjoining the route of the canal, to a much greater extent than 120 feet on both sides of it; through which lands thus acquired, we must presume that the canal was dug within the six years succeeding the charter, or before the 5th of March, 1837; for otherwise the charter, by its terms, would have been forfeited. Eight years after the completion of the canal, the defendants carve sundry lots and streets out of the land acquired by them from Mrs. Burthe, leaving a margin for a landing and public street on the north side of the canal, (Florida Landing,) of 108 feet, according to the witness Harrison.

Three years after this operation, or eleven years after the completion of the canal, and seventeen years after the acquisition of the 120 feet (and upwards) from Mrs. Burthe, the defendants commence excavating the soil of Florida Landing for the basin or half moon, of which the plaintiff complains. What relation has this to the power and extent of expropriation vested in the company by the ninth section of its charter ? That power had been exercised and exhausted. Besides, it may be very reasonably objected that, if this be an expropriation under the charter, the forms required by the ninth section have not been observed. The company required the land, and its servants simply took it.

Much evidence has been taken in relation to the benefit to commerce of the half moon in question. This we regard as entirely foreign to the matter at issue in this suit. Usurpations and wrongs are not to be tolerated upon any such considerations. We recognize no power, either in the defendants or in this court, to take money out of one man’s pocket and put it in another’s, unless in the enforcement of legal obligations, according to the forms of law.

We think the judgment appealed from has done justice. It is, therefore, affirmed, with costs.


text:
    Reuben M Gibson v. Hutchins & Vaughan.
    It is only the possessor in good faith, believing himself to be the owner, who can recover from the true owner the value of ameliorations inseparable in their nature from the soil.
    Although a settler upon public lands who hopes to obtain a title under the preemption laws is not a trespasser, he has no claim against a patentee of the Government for the ameliorations made upon the laud of which he has had the use. He has no claim against the Government for the value of the improvements made, and the assignee of the Government takes the land free from any liability.
    A mere settler, even with the hope of preemption, until he actually makes his entry, has no title, and improvements made by him on public land are presumed to be for his own benefit and at his own risk.
    The case of Bemkin v. Overly affirmed, and the cases of Pierce v. Premium, 16 L. 422 j Kellum v. Pippey, 8 Rob. 188, and Williams v. Booker, 12 Rob. 258, so far as inconsistent with the present opinion, overruled.
    APPEAL from the Ninth District Court for the parish of Concordia, Gooley J.
    Staay, Snyder, Shaw, Span-row, and George Rustís, for plaintiff and appellant.

      A. N. Ogden S Stanslmry and York, for defendant.
   Spoeford, J.

This is a petitory action for a tract of land belonging to what is commonly known as the “ Bringier Grant.” A patent from the United States Government issued in 1853 to the assignees of the original grantee, in pursuance of a judgment which they had obtained against the United States nnder the special laws allowing the institution of suits for such purposes.

The plaintiff holds under a sale made to effect a partition between all the co-proprietors of this claim. We see no such defect in the plaintiff’s title as would preclude him from succeeding in a petitory action against a mere possessor without title.

But the defendant contends that the plaintiff’s authors, Gurry and Qm-lmd, relinquished all claim to such portions of the grant as were in the possession of actual settlers who would he entitled under the laws of Congress to a preemption if the land had been subject to entry. The defendant, Vamghan, claiming to have been in this category of persons, insists that the plaintiff by this act of his authors, is estopped from asserting title against him.

The relinquishment alluded to is embraced, in a letter to the Register and Receiver of the Land Office at Monroe, dated in January, 1842. The expressions of Gurry and Garland in this letter were as follows i “You will observe that it is not our purpose to interpose any obstacles against any persons who had a. good preemption right previous to our purchase who may not have paid it out of your office, we only desire in such cases to be notified of the application so that we may make opposition if necessary to protect our rights. We know who are in good faith entitled to preemption rights, and only desire to be protected from illegal claims. You will please to take notice that Messrs. McQuim & Ray are authorized to act as our agents in the premises, and whenever an. application is made for preemption within the limits of our claim we request you will notify them or one of them. In making this relinquishment in favor of innocent purchasers and actual preémptors, we do not intend to be understood as relinquishing any right or claim for indemnity that we may have on the United States, to give us an equal quantity of land elsewhere, or to pay us for the lands so sold by you or your predecessors.”

This relinquishment must not he extended beyond its plain import. In terms it could only inure to the benefit of such persons as availed themselves of it by an actual entn'y undeo' a preemption claim. The defendant does not pretend to have so located any part of the land in dispute. If an offer was ever made in his favor by Gurry and Garland, (which is not altogether clear,) he has constantly rejected it. There never was a contract between him and them, and there is no estoppel.

The appellee’s prayer for a reversal of the judgment in favor of the plaintiff must, therefore, be refused.

The plaintiff has appealed, and coinplains of that portion of the verdict and judgment which awarded to the defendant the sum of six hundred and twenty-eight dollars “ for the enhanced value of the land” by reason of the improvements made upon it by the defendant’s deceased brother, under whom he holds. These improvements, as they are called, consisted in clearing, ditching, &c., or such ameliorations as the settler made with a view to enable himself to raise crops and reap fruits from the land.

The right of a possessor to recover of the true owner for ameliorations inseparable in their nature from the soil cannot, it appears to us, be recognized in any case, unless the possessor was at least a possessor in good faith, believing himself to be the owner. The mere possessor is presumed to have made such changes for his own amelioration, and to have received a sufficient reward in the immediate benefit which he reaps from the enhanced production of the soil. Perhaps the true owner would have preferred that the primitive forest should remain. Perhaps the ditching will not suit the purposes for which he wishes to use the land. To place the real proprietor at the mercy of a possessor in bad faith by requiring him to pay the latter who has, without just au>thority, changed the face of the land for selfish purposes of his own, does not accord with those rules of law which give the dominion of the soil to the pro*prietor only, or to one who has a right'to consider himself a proprietor for the time. An intruder may recover such expenses as are necessary for the preservation of the thing. A negotiorum gestor may recover what he has spent in doing the business necessary to be done for another, even without a mandate. It is a general rule of equity, that no one should enrich himself at another’s expense. But this doctrine must not be stretched so far as to let an intermeddler recover for wilfully doing what was not necessary to be done, or what the owner might not wish to have done, and what the law did not require to be done. If an intermeddler goes to expense with the single view of benefiting himself and reaps the benefit, he cannot demand a reimbursement for his time and trouble from the person upon whose property he has intruded, by suggesting that he too has been incidentally benefited.

The question now arises, was the defendant in good faith when he made the alleged improvements on the land recovered by the plaintiff. “ The possessor in good faith is he who has just reason to believe himself master of the thing which he possesses, although he may not be in fact, as happens to him who buys a thing which he supposes to belong to the person selling it to him, but which in fact belongs to another.” O. C. 3414.

“ The possessor in bad faith is he who possesses as master, but who assumes this quality when he well knows that he has no title to the thing, or that his title is vicious and defective,” C. O. 3413.

“ He is a bona fide possessor who possesses as owner by virtue of an A&t sufficient in terms to transfer property, the defects of which he was ignorant of.” O. 0, 4:95.

The defendant does not show that he ever possessed under a title transíatine of property. He produces no title whatever. He says he had a hope of getting a title — a preemptor’s claim. It seems to us a contradiction in terms to call such an expectation a title translative of property. If it is not, then the defendant’s possession lacked an essential element of the possession in good faith. He alleges in the answer that, when his brother, Burril T. Vcmghan, went upon the land in 1839, it was “ public land,” and that his brother acquired a right of preemption upon it which has descended to himself. Although after the Act of Congress of September 4th, 1841, B. T. Vaughan might not be technically a trespasser upon the land, and, as such, be liable to fine and imimprisonment, yet he did not by virtue of that Act become, in any sense, an owner of the land. The legal title remained in the United States until the patent under which the plaintiff holds issued in 1853; there was an incipient title or inchoate right in Bringier or his assignees before the defendant’s brother went upon the land.

From the decision of the court in the claim of Gurry and Garland against the United States, it followed that the land in question had not been properly subject to entry by actual settlers. And if it were, Vaughan could not have had even an expectation of claiming by such a title the whole of the land here in controversy, or half a section, for only a quarter of a section could thus be entered. He had no claim against the United State for improvements, He was rather indebted to the United States for the privilege of living so long undisturbed upon the public land. And the United States ceded its rights to the plaintiff’s authors. They took it free from any legal demand against either the government or themselves for improvements.

The defendant relies upon the cases of Pierce v. Frantum, 16 L. 422; Kellum v. Rippey, 3 Rob. 138, and Williams v. Booker, 12 Rob. 253, as sanctioning his claim for improvements.

These cases were fully considered by this court before determining the case of JfemMn v. Overly, decided at Monroe last summer, and were, in one particular, overruled. We found ourselves unable to class a mere possessor of the public lands of the United States, even with the hope of a future entry by preemption amongst “ possessors in good faith.” In other words, we could not consider an expectation of getting a title, as a title, which would put the possessor in good faith.

The overruled cases conceded to a settler upon the United States lands, who possessed with the hope of securing a preemption, the right of retaining the land against a vendee or patentee of the United States Government until such patentee should reimburse the settler the increased value of the property as resulting from improvements and expenses upon it during the settlement.

We said in Hemleinr. Overly that, (l we are unable to recognize the doctrine that one who makes improvements upon property to which he knows he has no title, has any legal or equitable claim to reimbursement for such improvements.”

A mere settler, even with the hope of preemption, until he actually makes his entry, Imows that he has no title. 1-Ie has an expectancy, and nothing more. He is a tenant by sufferance. He makes improvements for his own benefit and at his own risk. The Government does not warrant him a title nor agree to indemnify him for his labor in case he gets none. Whilst he Is permitted to settle there by the Government, he may reap the fruits and live rent-free. But when the Government parts with the title to a third person, that title carries with it such inseparable ameliorations as the land may have received from the settler. The settler has no claim upon the owner.

We conceive this to be-the true doctrine, as deduced from our own Code. And it is in harmony with the jurisprudence of the federal courts and those of our sister States, to which the case of Pierce v. Frantum presents so marked a contrast.

We think it a matter of some moment that the jurisprudence upon the subject of the public lands and the rights growing out of settlements upon them, should be as uniform as possible throughout the several States.

Finally, the defendant has contended that he was entitled to be considered a possessor in good faith by reason of the acts and promises of Ov/rry and Gwrland relative to the actual settlers. We find no evidence of any contracts between defendant’s brother and Ourry and Garland to hold under them, on the contrary, he has been holding in spite of them, and contesting their title always. He never accepted any of their propositions which, as we have already observed, were precise and predicated only upon the supposition that the settlers would make actual enfries under their preemption claims, or purchase of them. The defendant did not do so, and we find no evidence of a promise by the owners of the “Bringier Grant” to pay him for his improvements.

We do not find the strong equities in favor of the settler in this case which the appellee sees. If his brother has enhanced the value of the land, he has had the use of it for more than ten years without paying any rent. By having no title, he has escaped the necessity of paying any taxes. He had a liberal offer from those who turned out to be the true owners, and might have bought from them for a small sum. This he declined. If the law does not require the plaintiff to pay the defendant we have no power to assess the value of these improvements, or the enhanced value of the soil as a tax upon him.

The difficulty of making such an assessment Is exhibited by the record in this case. It Is almost impossible to approximate a just estimate of the enhanced value of the soil, flowing only from the clearing and ditching, and excluding all other considerations.

It is, therefore, ordered and decreed, that the judgment recognizing the plaintiff as owner of the land claimed in his petition be affirmed; and it Is ordered, that in all other respects the judgment be avoided and reversed, and that there be judgment against the defendant upon his demand in reconvention, and that a writ of possession issue in favor of the plaintiff; it is further ordered and decreed, that the defendant pay costs in both courts.


author: Vooriiies, J.

text:
    Anna E. Harrell and Her Husband v. H. R. Harrell
    A crop growing at the time of the dissolution of the marriage forms part of the acquets and gains. The Judge in decreeing a partition must direct the manner in which it shall be made.
    APPEAL from the District Court of East Feliciana, Ratliff, J.

      Muse & Han'dee and Race & Foster, for plaintiffs and appellees.

      Bowman & Delee, for appellant.
   Vooriiies, J.

This is an action of partition. On the 17th of June, 1838, Frances Hóbgood died intestate, leaving as her legal heirs three minor children, the plaintiffs, Marry FI. and Harriet L. Harrrell, issue, of her marriage with the defendant. No steps appear to have been taken by him to have an inventory made of the property of the community or to be confirmed as natural tutor to his minor children until after the marriage of the plaintiff, when an inventory was made on the 11th of April, 1853, which comprised twenty-one slaves, as the only property which belonged to the community. He was confirmed as natural tutor to Mary F. aa&Has'riet L. Harrrell on the 1st of June, 1853, and on the same day William B. Hóbgood was appointed their under-tutor:

The plaintiff claims as her hereditary rights, 1st, one-third of the sum of §1278 32, which her mother inherited during the marriage, and which her father received and converted to his own use, together with 5 per cent, interest thereon; 2d, one-sixth of the slaves thus inventoried as the property of the community, with their hire since the death of her mother; 3d, one-sixth of the ■crop of the year 1838 •, 4th, one-sixth of the movables which belonged to the community at the time of its dissolution, and of which no inventory was ever made.

The defence set up by the defendant is, that the community is largely indebted to him, and that the interest and revenues derived from the estate of the plaintiff were exhausted in defraying the expenses for her support and education. He also pleaded a general denial.

The cause was submitted to a jury, who returned a verdict that the plaintiff recover of the defendant the sum of §1768 80, and that a partition of the community property be made as prayed for by the plaintiff. From a judgment thereon rendered, the defendant, after having made a vain attempt to obtain a new trial, took the present appeal.

In order to determine the sum to which the plaintiff is entitled we must endeavor to ascertain from the evidence what property belonged to the community at the time of its dissolution, and what were the debts which existed against it and subsequently discharged by the defendant.

We infer from the evidence that the crop of cotton, corn and fodder gathered in the year 1838 was worth §3833, and that the household and kitchen furniture, horses, cattle, hogs, farming utensils, a carriage and a wagon, were worth the sum of §2077, making an aggregate of §5910. The defendant must be held bound for this amount, subject, however, to be credited for th'o debts of the community discharged by him; O. O. 333; 3 An. Oil. The debts of the Union Rank of Louisiana, and William, B. Hóbgood, as overseer, were the only debts due by the community as shown by the evidence. At the date of the dissolution of the community the bank debt, exigible the 16th of February, 1839, amounted to the sum of $2775, and the debt of Hobgood, including his wages for the year 1838, amounted to $1300, making in the aggregate $4075. The community must also be charged with the sum of $1278 33 which was inherited by the deceased spouse and received by the defendant during its existence. Deducting those amounts from $5910, the acquets and gains amounted to $550 67, to one-half of which the defendant was entitled, thus leaving the balance, to wit: $278 33 as a part of the inheritence of his children, to one-third of which the plaintiff is entitled, to wit: $92 77$. We are satisfied from the evidence that the annual interest of this sum and her portion of the revenues derived from the slaves of the community, were not more than adequate to defray the expenses of the support and education of the plaintiff.

It is contended by the defendant that the crop of 1838. cannot he considered as acquets and gains of the community. The question here raised can no longer be considered asan open question. See the case of Wilcoxv. Henderson 9 A. 347. The sum of $400 for overseer’s wages for that year, was allowed as a charge against the community, incident to the making of the crop of that year. It does not appear that the defendant claimed any other charge in relation to it.

It is evident, therefore, that the plaintiff was only entitled to recover the sum of $92 77$ as her share of the acquets and gains of the community and the sum of $426 11 as her share in the paraphernal estate of her deceased mother, making an aggregate of $503 77$, and not the sum of $1768 80 as awarded to her by the verdict and judgment of the court below.

The judgment is also erroneous, as it does not direct the manner in which the partition shall he made, but merely orders that the same be made and referred to a notary. The. Code of Practice, Article 1057, declares: “At the expiration of the time allowed for answering the petition, the Judge shall decree the partition, direct the manner in which it shall be made, and refer the parties to a notary whom he shall appoint to make the partition.” O. O. 1267; 1 R. 512. In order to ascertain whether property may be conveniently divided in kind, it is essential that the appraisement of it should be made within the year preceeding the decree of partition. O. O. 1247, 1248, 1249. In the present case the decree of partition was rendered on the 29th of November, 1856, more than three years after the appraisement of the slaves was made.

It is, therefore, ordered and decreed, that the judgment of the lower court be avoided and reversed, that the plaintiff recover of the defendant the sum of five hundred and three dollars and 77 cents, with five per cent, per annum interest from the 29th November, 1856, until paid, and that this case in relation to the partition of the slaves of the community be remanded to be proceeded in according to law, the costs of this appeal to be paid by the plaintiff and appellee, and those of the court below to he determined on the final decision of said cause.

Chief Justice Merrick recused himself, having been, of counsel in the case.


author: Cole, J.

text:
    Miss McCalop v. Fluker’s Heirs.
    Executory process may be taken out against mortgaged property of an estate yet in course of administration. . *
    "Where notice of an order of seizure and sale was given to the defendant as tutrix, she having full authority as such to represent the estate ih the proceeding, her qualifying as administratrix did not render it necessary that she should be notified in this latter capacity also.
    The maker of a promissory note cannot object to the failure of the holder to demand payment at the place of payment, unless he can show that by such failure his funds there deposited to meet his obligation had been lost.
    Judgment amendéd in the Supreme Court so as to cover an instalment of the mortgage debt falling due since the order of seizure and sale was granted.
    APPEAL from the District Court of East Feliciana, Ratliff, J.

      Smiley & Perrin, for plaintiff.

      D. O. Ha/i'dee, for defendant and appellant.
   Cole, J.

The administratrix of the estate of Dmid Jones Flulcer has appealed from an order of seizure and sale. The principal objection to its validity is that executory process cannot issue against mortgaged property in the course of administration, comprising part of the effects of a succession represented by an administrator.

This objection has been already considered by this court, and decided to be of no force. The authorities quoted in the decree of the District Judge sustain the judgment.

In Boguille v. Faille, 1 An. 205, the court say: “ The right of the hypothecary creditor to proceed against the mortgaged property in the possession of the debtor’s heirs appears to be beyond controversy.” Vide also 2 An. 513 ; C. P. 62 and 734.

It is also urged that the administratrix ought to have been notified of the order of seizure and sale.

The administratrix is Mrs. J. A. Flulcer, who is also the widow in community and tutrix to his minor children.

As tutrix she had the right of administration without being specially qualified as such; if then she had not been appointed administratrix, the notice to her in this case would have been good.

Her qualification as administratrix, which was not absolutely necessary, cannot render the notice insufficient, which was given to her as widow in community and as tutrix.

It is also objected that the notice of protest was not served on any one.

D. J. Flulcer was the maker, plaintiff was the payee and holder. No protest was then necessary as regards Flulcer, unless he could establish that the note would have been paid, if demand had been made at the place of payment, and by the neglect of plaintiff so to do, that his funds there deposited to meet this obligation had been lost.

Plaintiff has asked to have the judgment amended, as the last instalment mentioned in the petition and act of sale has become due since executory process issued in this cause.

It is therefore, ordered, adjudged and decreed, that the judgment of the District Court be amended, so that the property seized in this case be sold for cash to meet the last instalment of seven thousand dollars, with eight per centum interest thereon from the first day of January, 1854-, and it is ordered, that the judgment aforesaid be in all other respects affirmed, and that appellant pay the costs of appeal.


text:
    Spencer Field & Co. v. Martin Broderick and Mandeville Marigny, Sheriff, et al.
    Where property had been sequestered and was sold by the Sheriff, at the instance of plaintiffs, for cash, pending the suit, as perishable and to save costs, the effect of the Sheriff’s sale, under the order of court, was to transfer the legal custody of the officer from the property itself to its proceeds ; and the plaintiffs in the sequestration suit could not, by becoming themselves the purchasers of the property at the Sheriff’s sale, transfer the legal custody of the sequestered property from the Sheriff to themselves by withholding the price.
    APPEAL from the Second District Court of New Orleans, Morgan,, J.
    --, for plaintiffs and appellants.

      T. W. Oollins and L. JEyma, for defendants. •
   Buchanan, J.

This is an appeal from a judgment making a rule absolute, which was taken by the Sheriff upon a purchaser of property sold for cash under an order of court, to comply with the conditions of the sale, by paying the price of adjudication. There is no dispute about the correctness of the facts as stated in the rule, but the appellant contends that he is entitled to retain the price in his own hands, because he has a claim pending in the court below, for a privilege upon the property which has been sold.

There is pothing in this defence. The property (coal) had been sequestered at the instance of the appellants. At their instance it was sold by the Sheriff for cash, pending the suit, as perishable and to save costs. The Sheriff was the legal custodian of the sequestered property. The effect of the Sheriff’s sale, under the order of court, was to transfer that legal custody of the officer from the property to its proceeds, and the plaintiffs in the sequestration suit could not, by becoming themselves the purchasers of the property at the Sheriff’s sale, transfer the legal custody of the sequestered property, from the Sheriff to themselves, as they now seek to do, by withholding the price.

Judgment affirmed, with costs.

Re-hearing refused.


text:
    Phœbe Milne, Widow, &c., v. F. Schmidt.
    The Act of the lTtli of March, 1852, providing a homestead for the widows and children of deceased persons, is without effect as to creditors whose rights had- accrued before the passage of the Act.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      J. II. Holland, for plaintiff.

      J. Legan'deur, for defendant and appellant.
   Buchanan, J.

This is a contest between a widow, claiming under the Act of the Legislature, approved March 17th, 1852, entitled “an Act to provide a creditor of her deceased husband. homestead for the widows and children of deceased persons,” and a mortgage

The authentic act of special mortgage granted by the deceased William Milne, to the appellant, Ban'thelemy Baeas, to secure the payment of a ‘promissory note of said Milne, bears date the 27th of February, 1852, consequently before the passage of the homestead law above mentioned.

Milne died in June, 1852, intestate, and Frangois Schmidt was appointed administrator of his estate, with the consent of Milne's widow, plaintiff herein. Schmidt rendered an account of his administration on the 7th July, 1858, which was opposed by the widow, and her opposition overruled by judgment of the 28th January, 1854. From this "judgment, the widow did not appeal; but brought suit on the 16th of May, 1854, to make the appellant, Bacas, and other creditors of her husband’s estate, refund what had been allowed and paid to them under the account of administration.

The appellant Bacas, among other matters of defence to plaintiff’s action, pleaded that it was barred by her previous appearance as an opponent of the administrator’s account; and in this court urges as error, apparent on the face of the record, that his mortgage was anterior in date to the Act of the Legislature, under which plaintiff claims.

It is only necessary for us to notice the last mentioned point, upon which, the authority of the case of Taylor's succession, 10 An. 509, is conclusive against the plaintiff and appellee.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, so far as regards Ba/rthelemy Bacas, the appellant; and that there be judgment in favor of the said Ba/rthelemy Bacas, against the plaintiff and appellee, with costs in both courts.