text:
    No. 10,906.
    Succession of Widow Bertrand Saloy.
    The public administrator has no standing in court to ask the nullity of the appointment of administrators made after the observance of all the forms of law, and seek his own appointment instead, because the deceased was an adulterous bastard who left no issue, no surviving husband and no will, and theparties claiming the estate are adulterous collaterals who can not inherit.
    The State has a right to institute judicial proceedings to revendicate the succession of a person who dies without heirs. The action arises under express provisions of law.
    The State would have such right, in the case of the succession of an adulterous bastard, leaving no legitimate or natural issue, no surviving husband and no will, which is claimed by adulterous collaterals, upon legal proof of the adulterous relationship of the parties.
    The only evidence which the law allows to be introduced in such a case is a valid judgment, upon proper proceedings, obtained by the husband, or in his default his heirs, under the circumstances and within the period prescribed by law.
    1. The right to institute an action, en desaven, to repudiate children, born during the marriage, is exclusively personal to the husband, who is the sole judge of his honor and of the propriety of bringing it.
    2. Where the husband, or his heirs, fail to institute such suit the door for the contestation is forever closed, the status is irrevocably acquired and fixed so that it can be thereafter questioned by no one.

    8. The State has not been declared by the Legislature to be vested with the right of bringing the “ public actionSuch right can not be exercised, unless formally recognized and announced by law, and then only for the purposes designated and in the cases specified. In the meantime it is a dormant attribute.
    4. The State, whatever her governmental prerogatives or police powers be, has no right, in the absence of a formal expression of the legislative will, declaratory of the same, to any action to vindicate laws enacted for the preservation of public order, or of good morals.
    5. In an action brought by the State to exclude adulterous bastards from a succession, where the persons represented to be such were born during marriage, it is essential to allege and prove that their adulterous character has been judicially pronounced by a competent court, and that the judgment has acquired the force of sovereignty.
    APPEAL from the Civil District Court for the Parish of Orleans. Eightor, J.
    Thos. JSemines, Drolla & Augustin and Buck, Dinkelspiel & Hart * for the Administrators^ Appellees:
    1. The public administrator has no right to provoke the removal of an administrator. 34 An. 728. Nor to annul a decree so that he may administer. 26 An. 162.

      2. The State can not bastardize the offspring of a married woman. The child of a married woman is presumed to be the child of the husband, and this presumption can only be destroyed by a decree rendered in an action en desalen, which action can be brought by no one but the husband and his heirs, as prescribed by Arts. 191 and 192 of the Civil Code, nor can the presumption of paternity be attacked by the husband or his heirs, except in the cases where the . presumption of paternity as an incident of the marriage is allowed to be disputed under Arts. 185, 186,187,188, 189 and 190. Case of Eloi,Eob. 531; Dejol vs. Johnson, 12 An. 854; Journal Du Palais, 1864, p. 329 and of 1866, p. 1252; 2 Toullier, Nos. 895-6; 5 Demolombe, No. 235; 6 Aubry and Eau, p. 62, Sec. 545; Marcade sur Particle 319; Laurent, Yol. 1, p. 311.
    3. The acknowledgment of an incestuous or adulterous child of a married woman can have no effect for or againt him. J. P. 1876, p. 893; Id. 1879, pp. 579, 580 and 584; Id. 1859, p. 707; Id. 1865, pp. 327 and 756; Id. 1686, p, 327; 5 Demolombe, No. 96; 3 Duranton, Nos. 115-138; 1 Laurent, p. 311.
    4. A child of a married woman can not repudiate his own legitimacy, 5 Demolombe, Nos. 70 and 126.
    Nor can the mother. 5 Demolombe, No. 154; 2 Toullier, No. 835; 3 Duranton, No. 77; Aubry & Eau, Yol. 4, p. 584; 3 Partidas, Tit. 14, L. 9.
    5. A child of a married woman can not be bastardized except by a decree of justice in an action en desaven brought against him by the husband or his heirs. Mourlon, Yol. 1, pp. 449 and 438, No. 867; Demolombe, Yol. 5, Nos. 113,114 and 115; 6 Aubry & Eau, Sec. 545, p. 523; 3 Laurent, No. 77; Marcade, sur Particle 317, p. 386; IMourlon, p. 452; 1 Laurent, p. 317, No 273.
    6. The delay of two months, within which the action en desaven is to be brought by the husband or his heirs, is not a prescription, but at the expiration of the time the right is extinguished. 5 Demolombe, No. 139.
    7. Collaterals who have recognized in a child born of a married woman the quality of a legitimate child are not allowed to afterward contest his legitimacy. Code Sirey Gilbert, Note sur Art. 319.

      Walter H. Rogers, Attorney General, for the State, and Chrétien & Sutlion for the Public Administrators, Appellants:
    1. An adulterous bastard can not transmit to nor inherit from ascendants or collateral heirs. C. C. Arts. 238,917,920; C. N.723, 767; Succession Fletcher, 11 An. 59
    2. The State has a double interest in intervening here: (a) pecuniary, as heir; (&) governmental, asserting her police power. O. O. Arts. 200, 204, 206; C. N. 335, 338.
    3. This can not be caned an action en desaven de lapaternité, but is a contestation d’etat, or a question d’etat, raised by one having an interest in a case where no presumption pater is est applies, because the titre de naissance shows the status of natural children. Demolombe, Yol. 5, Nos. 101, 109, 127; C. N. 319; C. C. 193; Toulli er, Yol. 1, Nos. 898, 899, 900; C. N., Art. 322; Toullier, Yol. 2, No. 920.
    4. The charge of fraud in the matter of averment and proof is admitted by the exception to be true.

      Girault Farrar and Wynne Rogers, Special Counsel for the State,

      B. C. Elliott, Attorney for absent heirs.
   The opinion of the court was delivered by

Bermudez, O. J.

The transcript contains several judgments which are brought up for review.

I.

The widow of Saloy having died intestate, a contest arose for the administration of her succession, and two administrators were appointed, who took the oath and furnished the bond required by law.

After these administrators had taken possession of the estate and entered upon the discharge of their functions, the public administrator brought suit to have the appointments vacated and himself appointed administrator of the succession.

The grounds upon which he relied are, that Widow Saloy died intestate, leaving no legal heirs; that the parties who claim to have inherited her estate are adulterous collaterals who are disqualified by law; that the appointments were obtained in fraud of the law.

After hearing on an exception of no cause of action, the petition of the public administrator was denied. From the judgment thus rendered, he appeals.

In the Succession of Winn, 26 An. 162, the then court held, that the public administrator has no right to interfere in a succession not vacant, in which the executrix had qualified and had not been removed and no creditor had asked for her destitution.

In the succession of Burnside, 34 An. 728 (731), the right of the public administrator to ask for the removal of an executor, for the reasons charged, was considered and the court held, that he had no authority to provoke the removal of the executor, who was discharging his duties.

It said: ‘ His power to act arises only in the cases provided by the law which created his office. The utility of his office arises according to law, and his services are required only when a succession is not being administered at all. His office was intended to fill a vacancy, but he has no power to provoke a vacancy. * * * This right can be exercised only by his heirs, legatees, or creditors.” C. P. 1018. The ruling in the Succession of Winn, 26 An., is referred to with approval.

It does moreover appear [that, even if the public administrator would have raised lawful aspirations to the administration of a succession like the present one, he should have made them known, asserted them after the publication of the first application had been made and engaged with the others in the contest for the administration. It was surely too late, after the. appointments had been conferred and the appointees qualified.

The lower court ruled correctly.

II.

It appears that certain parties claiming to be the nearest collateral relatives and the only heirs of Widow Saloy were recognized as such by the court and ordered to be put in possession of the property left by her.

The State of Louisiana then instituted proceedings to have the judgment annulled on the ground that it had been fraudulently obtained; that the deceased left no legal heirs, and that, in the absence of such, her succession accrues to the fisc.

The grave charge is propounded that Widow Saloy was an adulterous bastard and that the parties in question are adulterous relations, incapable of inheriting.

The specific allegation is made that the mother of Mrs. Saloy, Dolores Morales, was the legitimate wife of Juan Gestal, of Cuba, whence she eloped with one Antonio Carcagno, settling in New Orleans, where they had three children, Marie Madeline, Carmelite and Antonio, who were conceived and born during the existence of said Gestal, who died only in 1842.

Several decrees and judgments rendered in the succession proceedings are complained of and their annulment is prayed for.

The parties appointed administrators and those recognized as the sole heirs of Mrs. Saloy, whose status and right of inheritance are assailed, as well as the attorney of absent heirs, are asked to be cited. The petition concludes with the prayer that the judgment attacked, recognizing the alleged heirs, be annulled, and that the State of Louisiana be declared to be the sole legal heir of Carmelite Carcagno, widow of Bertrand Saloy, and, as such, entitled to the residue of her estate after payment of debts and charges.

To this petition the defendants filed an exception of no cause of action.

After hearing, that defence was sustained and the claim of the State was rejected, with judgment in favor of the defendants. The State appeals.

The exception of no cause of action was considered as putting at issue the right of action of the State to institute the suit and it was dealt with accordingly.

There can be no doubt that under express textual provisions of the law the State has the right, in certain cases, to claim the succession of parties who die without heirs, or whose estates are not claimed by those having a right to them.

Art. 485, R. O. 0., is formal on the subject. It reads: “The succession of persons who die without heirs, or which are not claimed by those having a right to them, belong to the State.”

In the same sense is Art. 917, which reads: “When the deceased has left neither lawful descendants, nor lawful ascendants, nor collateral relations, the law calls to his inheritance either the surviving husband or wife, or his or her natural children or the State.”

To the same effect is a following article, No. 929:

“ In defect of lawful relations or of a surviving husband or wife, or acknowledged natural children, the succession belongs to the State.”

It may not be out of place to observe that, under the provisions of Art. 923, it has been held that, when the father and mother of a natural child have died before him, the estate passes to the natural brothers and sisters, or to their descendants. 11 L. 181; 5 R. 9.

Being made an heir, in certain contingencies, it is clear that the State has a right to demand a judicial enforcement of the law in her favor.

This right has been admitted in more than one instance; but notably in the well known case of the succession of Henry Eletcher, 11 An. 59, in which the State successfully opposed the claim of a daughter of the deceased, on the ground that she was his adulterous child and could not inherit from him. Y. also 12 R. 584; 6 An. 494.

This right is so well recognized that the State, in a proper case, may be allowed to institute even the action in disavowal (action en desaven). Toullier, Vol. 2, No. 127.

It is enough that the State has a pecuniary interest to revendieate, to authorize the institution of the suit.

Had that interest no existence, the State would have no standing in court, in the absence of declaratory legislation, to assert a governmental privilege or police power, for the prevention or suppression of the violation of civil laws, enacted for the preservation of public order and good morals.

The right then to interfere must have previously been expressly announced and formulated.

No doubt the State inherently possesses the prerogative, as a dormant attribute of sovereignty, but her oficial representatives have no authority to assert and enforce it, when there exists no solemn expression of the legislative will, directing or sanctioning its exercise. It is not self-operative, and needs legislation to be put in motion.

The French authorities referred to in support of the proposition have no application here, where the power has not been announced by the legislative will; but they are of significance in France, where the right to institute, as censor morum, the “action publique” is formally thus recognized. V Pandectes Francaises Verbo “Action Publique.” Also Eépertoire J. P., Suppl. Oompl., lb.

There is to be found in France, however, no case, that we know of, in which the State has sought to exclude adulterous relations from a succession and was permitted to prove their status as such, otherwise than by a judgment, obtained by the proper party and reasonably declaratory of the fact of bastardy.

The dominant question nevertheless arises, whether the State can assert the bastardy of the pretended heirs, and claim the succession of the adulterous deceased bastard, without alleging that she possesses such evidence; for that is the case presented here, as, under the exception, the facts averred in the petition are taken for true, and that fact is not therein set forth.

Adulterous bastards are considered as having no relatives. Nec genus, nec gentem habent.

Domat says, Loix Civiles, 2d part, preface No. 12: The successions of bastards who die without legitimate children and- without having disposed of their estates must be placed in the rank of those which accrue to the prince; for, under our usage, no one succeeds them ab intestat except their children, if they are legitimate, and they themselves succeed to others by testament only.

Dealing with the subject, Laurent, Vol. 9, p. 181, No. 153, says: The code does not speak of the succession of adulterous or incestuous children. The question must be decided according to general principles.

The adulterous or incestuous child can not be acknowledged and has, therefore, no natural relative, no-father, no mother, no brother, no sister. * * * He can have as his legitimate relatives the children born of his marriage, for, however maculated be his own birth it can not affect the condition of children born of a legitimate union. From this it is very easy to determine the order in which the estate left by an adulterous or incestuous bastard descends. It passes at first to his legitimate issue. * * * If there are only natural children they take the inheritance under Art. O. N. 758. In default of posterity there are neither natural nor legitimate relatives.

It was proposed to defer the succession to the father and mother; but it was not remembered that the unfortunate are legally without father or mother, as they have no filiation. * * * For the same reason they have neither natural brothers nor sisters, and there is no reversion or succession for their benefit. Remains the surviving spouse, and in his or her default the State.

See Zacharie, Ed. of Aubry & Rau, Vol. 4, p. 266, No. 10, and Demolombe, Vol. 14, p. 211, Nos. 136-138.

It is therefore apparent that the estate of an adulterous child who dies leaving no issue, legitimate or natural, and without having disposed of it by will, accrues to the State; but is it enough that the crude facts exist, to entitle the sovereign to take? Is he not bound to prove it, by legal evidence, establishing it beyond all peradventure? If so, what should that evidence be?

The exception of no cause of action does not say how or why the petition discloses no valid claim. The State did not demand any specification and it was tried on the face of the papers.

Exceptions of that description tend to the rejection of a petition, not only because the facts alleged, if true, would not warrant the judgment sought, but because the averments are insufficient.

From the manner in which the ease was presented and argued it is manifest that the-purpose of this exception was not so much to deny the right of the State to obtain the judgment sought as it was to deny that, for want of allegations which were not and could not be made, the State could not adduce legal evidence to substantiate them.

Had not the exception been filed, the defendants, after joining issue by answer, could, on the trial, have successfully objected to the introduction of any evidence in support of the averments, which would not have been strictly warranted by law.

The defendants, by the exception, may be viewed as having told •the State: You say that the three children were born -from the adulterous connection of Dolares Morales with Antonio Carcagno, while her marriage with Juan Gestal was in existence; that one of them, Carmelite, having died without issue and ab intestat, the other, Marie Madeline, who is Mrs. Pons, and the representatives of Antonio, being adulterous collaterals, can not inherit, and that you, therefore, are called to her succession, which belongs to you.

You do not allege that those three children have, in an action brought by Juan Gestal, under proper averments and seasonably instituted, been judicially declared to be adulterous bastards.

Not having made that allegation, because the fact does not exist, you can not force us to a trial on the merits of the suit; you can not prove your averment of adulterinity and, failing in that, you can not recover the judgment of heirship which you seek.

To this the State answers: It was unnecessary to make the allegation because this is an action in contestation of legitimacy, on a ■charge of adulterous bastardy which can be proved, otherwise than by a judgment bastardizing the children, at the instance of the husband of their mother, or of his heirs.

The deceased was an adulterous bastard and you are her adulterous collaterals. She has died leaving no issue, no surviving husband, no will; you can not and do not inherit her estate, which, therefore, accrues and belongs to me, and I ask that it be so adjudged.

It would be cumbersome and subserve no useful purpose to enter into any elaborate inquisition to establish clearly what are actions m disavowal, actions in contestation of legitimacy, actions in reclamation and actions in contestation of status, and to enumerate the •cases in which they may successfully be brought. The commentators and the courts which have hazarded a disquisition on the subject have ventured on a perilous enterprise and engaged in a labyrinth from which it has been difficult sometimes for them to extricate themselves. Insatiable aspirants after exhaustion of legal knowledge on those thorny subjects may be assisted in collecting notes, to serve as landmarks, by referring to the authorities alluded to, by the able counsel engaged in this controversy, in their ■elaborate briefs, and to those on which the ravenous commentators themselves, more or less, rely.

It will suffice to say that every action brought to contest the status of a person is an action en contestation d’etat, which is of three kinds:

1. That by which one maintains that the presumption is pater est quern nuptice demonstrant, invoked for a child, born or conceived, during the marriage, is, as to him, contrary to truth.

2. That by which one maintains that the child is not legitimate, because his birth and his conception did not take place during the marriage of his mother, or because his mother was not married.

8. That by which one contests either the delivery of the mother or the identity of the child.

The action en desaven belongs only to certain persons exactly determined, that is, the husband and his heirs. It belongs neither to the mother nor to her heirs.

This action is limited to a delay fatal and very short, after which it is extingnished by the renunciation, express or tacit, which is made by the husband or his heirs.

While the action en contestation de legitimité accrues to all persons interested, and consequently to the heirs of the mother and to the child himself, this action lasts always. It subsists notwithstanding any contrary renunciation. Mourlon, Vol. 1, p. 488. No. SB?, and seq.

It is unnecessary to enter into any discussion as to whether the suit brought by the State is an action en desaven, or one en contestation de legitimité, because it has the complexion of neither and the State expressly disclaims that it is either, contending merely that it is one en contestation d’etat.

Whatever its character be, it is clearly an action which has for its object to have it judicially declared that the deceased was an adulterous bastard and that the defendant, her sister and nephews and nieces, are adulterous bastards; that the deceased, having left no issue, no husband and no will, the defendants do not inherit and her succession belongs to the State.

The only question presented after all' is one which relates to the nature of the proof or evidence of which the case is susceptible.

Oan the State be permitted to resort to any evidence save the judgment in a case of disavowal? That is the question.'

We have been referred to no authority showing that evidence of such a character was ever allowed, in order to bastardize children born during marriage, and we know of none.

In the succession of Fletcher, 11 An. 59, in which the State had charged the adulterinity of the daughter claiming the estate, the court allowed the State to introduce usual evidence, other than a judgment, but this was done because the daughter was the child of the deceased, a married man, by an unmarried woman and a slave j So there is no parity between the two cases.

The State takes the further position that the parties who pretend to be the sole heirs of the deceased, being plaintiffs, must make out their claim as was required in the Fletcher ease, and that, as they have shown themselves to be Carcagnos and not Gestáis, they have established their status as adulterous connections and therefore debarred themselves from inheritance.

This is a fallacy. These parties are not plaintiffs, as was Marie Louise in the Fletcher ease.

The court there was particular in premising that she was not a defendant, but a plaintiff, on whom the burden of proof rested.

In the present instance the parties are not asking or claiming anything and have nothing to prove.

Whatever their status be, the State by this suit has forced them into the attitude of defendants, as she attacks them.

They are in possession of a judgment which is their property,. emanating from a competent court which recognizes them as the sole heirs of the deceased.

The onus is on the State to show by strictly legal proof that they have procured it by fraudulent representations and practices, and the question reduces itself as to whether the State has at her command the evidence exclusively permitted in such cases, in which children born during marriage are gravely charged with being adulterous bastards, incapable of inheriting under the law.

The two cases, that of Fletcher and the instant one, are, therefore, in this further respect, entirely dissimilar.

There is no doubt that a husband, although he be presumed by law to be the father of the children born from his wife, during the existence of their marriage, has the indisputable right to repudiate them when they have not been begotten by him and are the spurious fruits of the adulterous intercourse of his wife with another man, but the cases in which he is permitted to go into the scandalous do - ings of his depraved consort, reeking with the odor of adultery, are specified with precision, and his action, and in his default that of his heirs, are to be asserted within a limited delay. R. C. O. 184-192 inclusive.

The proceeding must be conducted contradictorily with the wife and with the child or children whose character and status are involved.

The law has made him the sole judge of the propriety of engaging-in such a course, with a reserve of the right to his heirs of doing so, in the event of his death within the delay. He is the only one who' perhaps can know that he is not the father.

When, aware of the circumstances under which he might have exercised the right of repudiation, the husband, who is the sovereign arbiter of his honor, fails to do so, the door is forever closed and no one can afterwerd assert a right strictly personal to him.

Permitting such thing would be to strike a heavy blow at the-sacredness of family ties, keep the honor of the wife and of the children in a condition of constant trepidation and allow the foundation of society to be, at all times, exposed to tottering and upturning. Status hominum in perpetua ineertitudine fluetuaret.

The sanctity with which the law surrounds marital relations and! the reputation and good fame of the spouses and of the children born during their marriage is of such inviolability that the mother and; the children can never brand themselves with declarations of adultery, illegitimacy and bastardy, and their character is not permitted lightly to be thus aspersed, however true in themselves the stem and odious facts may unfortunately be.

This doctrine has long ago been recognized in this State.

In the two cases of Eloi vs. Madere, 1 R. 583, and of Dejol, 12 An. 854, the then Supreme Courts expressly recognized and applied it,, holding that, where the husband has failed to institute the action en desaven, under the circumstances and within the period specified, the right to assail the legitimacy of the children born during marriage having become extinct and lapsed, it would be subsequently exercised by no one, and those asserting it were debarred from alii action. See also, 7 M. N. S. 553; 6 An. 242.

But the converse of the proposition is true, that if the husband or his heirs have brought proceedings to bastardize children born during marriage, and have established the facts of the adulterinity (adultérinité) propounded, and a judgment has accordingly been rendered and has become final and executory, sovereign and absolutes to all ends and purposes, any one having an interest to promote, growing out of the fact, judicially established and proclaimed, may use the proceeding and the judgment successfully for the purpose of establishing the adulterous character.

Had, therefore, such judgment been procured in this instance the State could have used it; and, by its operation, would have silenced the voice of the blood which the defendants have raised to possess themselves of property left by a collateral whose forehead has not been branded with infamy.

From the fact that such judgment has not been alleged; that its existence is not even whispered, the unavoidable conclusion is that it has no being, and therefore that the State is unprovided with the only legal evidence by which her case was susceptible of proof, and that she must fail in her action.

It is therefore ordered and decreed that the judgments appealed from, rejecting the application of the public administrator and the demand of the State, be affirmed with costs; and considering that the State has no interest in contesting the validity of the other judgments from which she has appealed it is ordered that said appeals be dismissed.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 10,884.
    Mrs. Mary May et al. vs. New Orleans & Carrollton Railroad Company.
    1. A purchase of immovables by the members of a commercial Arm, made with the partnership funds and for account and use of the partnership as shown by the books of the latter, though the title be taken in the names of the individual members, has precisely the same effect as if the title had been taken in the name of the partnership. In either case the partners become joint owners, but, as between themselves, they hold for the benefit of the Arm.
    2. A transfer by one partner to his copartners, or to a third person of all his interest in the firm audits property, operates a divestiture of his beneficial interest in immovables held as above, and disables him from contesting the title of his transferee.
    3. An assignment in bankruptcy under the bankrupt law of the United States, differing from a cession under the Louisiana insolvent laws, divests the bankrupt of his title to all his property and transfers the same to his assignee.
    4. While the assignee holds the title in trust for the creditors, and as to any residuum after their satisfaction for the bankrupt, his title can not be divested without proper showing to, and order made by, the court which has the control and administration of the trust. Until this has been done, other courts mtist respect the title of the assignee, at least until his discharge.

      APPEAL from the Oivil District Court for the Parish of Orleans. Bightor, J.

      Leovy & Blair for Defendants and Appellants:
    1. Title by purchase. — May never parted with his title to the property involved in this suit. The sale of a railroad and appurtenances does not pass any corporeal property, but only incorporeal easements or rights and privileges. Bouvier’s Dictionary, “Appurtenances,”, and authorities there cited. Besides, in this case, the language of the act of sale excluded this property.
    2. The attempted sale by the United States to certain parties was null and void because there were no advertisements, no auction sale, no consent of the Secretary of the United States Treasury, as required by United States Statutes-United States vs. Jonas, 19 Wall. p. 604.
    3. Prescription. — There could be no title by prescription because in the acts of sale relied on by defendant there was no sale of the square involved in this suit; but only such “right, title and interest” as vendor possessed; “but whether a lease, a servitude, an usufruct or something else, is not stated.” Laville vs. Bightor, 17 La. 310; 3 B. B. 320; 10 B. B. 88; 11B. B. 441. And the vendor possessed no interest of any kind.
    4. “A deed of right, title and interest” does not convey the fee, but only such right in the estate as the grantor might have had. 16 Gray (Mass.), p. 332; 12 Pickering, 458; 13 Pick. 463; 20 Mo. 81; 4 Mason, 264.
    5. The evidence in this case shows that the defendants could not “honestly” have believed themselves to be the owners of this property, that the title was not sufficient to transfer the property, nor was the title of their vendor one of “ownership,” nor were they in good faith, nor had they “just reason” to believe themselves the owners. All of which are essential requirements to create a legal title by prescription. C. C. 501, 3481, 3488, 8486. Marcade, Prescription, pp. 194, 198, 200. See also p. 305.
    6. lies Judicata. — “The reasoning and opinion of the court are not res judicata unless the subject matter be definitely disposed of by the decree.” “It is elementary that in the decree rendered and not in the opinion pronounced will be found the thing adjudged.” Penouilh vs. Abraham, 43 An. 214, and [authorities there cited.
    A decision between a plaintiff and several co-defendants can not affect rights as between co-defendants when the co-defendants have not pleaded as against each other. Minn. Co. vs. Chamberlain, 3 Wall. 704; Bussell vs. Place, 94 U. S.,p. 606. The parties must be adverse parties to constitute res judicata. 35 Ala. 312; 18 Ohio, 1; 5 Mass. 407; 61 Iowa, 290.
    7. Bankruptcy. — The points in this subject are covered by Walling vs. Morefield, 33 An. 1174.
    Where real estate is in possession of another party the bankrupt can only assign a right of action. 1 Woods, 260; 5 Otto, 765; 13 Myers’ Fed. Decisions, Secs. 1408,1421.
    Where property of a bankrupt has not been sold and creditors have not objected, and are presumed to have been paid, it reverts to the bankrupt. The assignee is a trustee for all parties, and when the bankrupt has been discharged the bankrupt is entitled to what remains. Walling Heirs, 33 An., p. 1174; Bemy vs. Municipality, 11 An. 158; Bivas vs. Hunstock, 2 B. B. 194; 6 La., p. 69;Bump on Bankruptcy, pp. 215, 400; 2 Am. and Eng. Encyc. of Law, p. 72 (note); 17 Wall.. 610; 13 Myers’ Eed. Decís. Sec. 1434; Hennen’s Dig., p. 689,

      8. Fraud. — It is not alleged in this case, but is stated in argument. It is never presumed. Nothing is left to inference, the omission to place property on the schedule must be wilful, if from oversight, mistake, accident or ignorance, there can be no imputation of fraud. 93 XT. S. 326; 132 U. S. 611; Bump on Bankruptcy, pp. 324, 498; 13 Myers’ Fed. Dig. Secs. 2480,2325,2528.
    Besides, it can only be pleaded by one prejudiced by the act which constitutes the estoppel. 6 Wait’s Actions and Defences, p. 630; 93 XT. S. 326.
    9. Two years’ limitation, under the bankrupt law, applies, by the words of the statute, only to claims made by the assignee or by any one claiming under or through him. This is not a suit by an assignee or by any one claiming under or through him. May became an owner of the square by purchase in 1866 and never ceased to be the owner. The assignee was authorized as trustee to sell if necessary, but he did not sell. The trustee held in trust only; never as owner.
    10. Rents, etc. — The possessor in bad faith is bound to restore to the lawful owner all the revenues of the property of which he has been deprived during the possession of the defendant; whether the bad faith of the latter be moral or merely legal or constructive. As possessors in bad faith defendants are responsible for the rents and revenues of the property from the date of their possession, and there can be no bar by prescription. Hennen’s Dig., p. 1003, No. 1; 41 An. 493; 26 An. 733; 24 An. 253.
    11. Money expended for taxes, etc., will not be allowed “where there is no pleading or prayer to support them.” Germaine vs. Mallerich, 31 An. 373-74.

      John M. Bonner for Defendant and Appellee:
    1. A natural tutrix, residing in another State, should either be appointed guardian of the minors according to the laws of her residence, or she should be confirmed and qualified according to the laws of this State, in order to stand in judgment before our courts. R. G. O. 363; 34 An, 129; R. O. O. 334, 335; O. R. 949; 2 An. 76; 3 An. 563.
    2. When her capacity is questioned, the best and only evidence of her authority would be either letters of guardianship, or of tutrixship. R. O. C. 335, 336.
    3. When a person becomes a bankrupt, the assignment of his property by the register to the assignee operates a complete divestiture of title out of the bankrupt and vests the same in the assignee, as fully and completely as if the bankrupt had signed the transfer with his own hand. Sec. 14 of Bankrupt Law of 1867; 1 Peters, 193; 17 How. 315; 97 XT. S. 392; 98 XT. S. 20; 99 U. S. 392; 102 XT. S. 647; 31 An. 577,
    4. Title once vested in the assignee remains there until it becomes divested by some act as solemn and as authoritative as that by which he became clothed with title. 27 N. W. R..527; 2 S. W. R. 909; 10 Humph. 588, and authorities above quoted.
    •5. Upon the death or removal of the assignee, the title must be formally transferred by deed to his successor. Sec. 18 of Act of 1867.
    •6. Under the Bankrupt Act, the title of the bankrupt is transferred to the assignee. Under State insolvent law, the title remains in the insolvent. R. G. O 2175, 2182,
    ‘7. The title to all property that T. P. May owned, or was entitled to have in April, 1871, having been vested in the assignee, by the assignment that was made to him by the register, all suits against adverse claimants, not brought within two years from that date, were forever barred. Sec. 2 of the Act of 1867; 98 U. S.248; 102 U. S. 647; 122 U. S. 214; 132 U. S. 440.

      8. Where real estate is shown to have been purchased by a partnership, a transfer by one partner of all his interest in the partnership, its property, stock, etc., will convey his interest in said real estate. 33 An. 1176; 26 An. 156; 35 An. 266; K. C. C. 2449.
    9. If there is any doubt about an agreement, “the construction put upon it by both parties, or by one with the express or implied assent of the other, furnishes the rule for its interpretation.” R. C. C. 1956.
    10. A person acquiring immovable property from one who is not the owner, in good faith, under a title that would convey the property if it came from the real owner, secures a good title by the adverse possession of ten years. R. C. C. 3478 ; 30 An. 935; 37 An. 417; 38 An. 209 ; 38 An. 885 ; 41 An. 1023.

      а, Good faith is always presumed, and he who alleges bad faith must prove it. R. C. C. 3481.
    б. It is sufficient if possession begins in good faith. R. C. O. 3482.
    c. He is a bona fide possessor who possesses as owner by virtue of an act sufficient in terms to transfer the property, the defects of which he was ignorant. R. O. O. 503, 3451.

      d. The party must also hold under a just title. And a just title is not one derived from the real owner, but from one honestly believed to be the real owner; provided the title is such as to transfer the property if it came from the real owner. 3483, 3484, 3485.
    e. If the title on its face is sufficient to transfer the property if it came from the real owner, that is enough, and the defendant is not obliged to look at anything outside of his own act. 4 N. S. 225; 11 O. S. 714; 3 An. 8; 5 An. 380; 34 An. 708.

      f. The means of obtaining knowledge is not equivalent to actual knowledge, and nothing but actual knowledge of the defect of title will prevent prescription of ten years. 4 La. 274; 7 An. 3; 27 An. 596; 30 An. 935; 37 An. 417; 38 An. 209, 885; 41 An. 653.

      g. The entire absence of a. power of attorney is cured by the prescription of ten years. 8 La. 248; 10 La. 284; 27 An. 596.
    11.“If a man knowingly, although he does it passively, by looking on, suffers another to purchase and expend money on land under an erroneous opinion of title, without making known his own claim, he shall not afterwards be permitted to exercise his legal right against such person.” 102 U. S. 68;99U. S, 110; 100 U. S. 578 ; 35 An. 743 ; 31 An. 581.
   The opinion of the court was delivered by

Fenner, J.

The pertinent and controlling facts in the case are as follows:

On the 12bh of April, 1866, G. T. Beauregard leased the railroad belonging to the New Orleans & Carrollton Railroad Co., for the term of twenty-five years, with the stipulation that the same should be converted from a steam into a horse railroad at the expense of the lessee, and with the further stipulation that at the expiration of the lease the road and improvements should revert to the lessor.

Thomas P. May and A. C. Graham signed the lease as sureties of the lessee.

On April 18, 1866, Beauregard, May and Graham entered into a copartnership by notarial act, which declared that the lease above referred to was to be held for the joint' account; that Beauregard was to conduct, manage and direct the enterprise; that May and Graham were to furnish the money necessary to carry it on, in amounts and at dates specified; that books of accounts were to be kept, and that each partner was to have an equal one-third of the net profits.

The act of copartnership does not give any firm name to the partnership; but the evidence shows that the business was conducted and the books were kept under the name of the Carrollton Railroad Company.

One of the first necessities of the enterprise was to establish stables for the live stock employed therein. Accordingly a square of ground, being the property here in controversy, was purchased for that purpose.

The title was taken in the individual names of the partners in the proportion of one undivided third each; but the books of the partnership show that the cash portion of the price was paid by a check of the partnership, and said books further expressly declare that the purchase was made “by the partnership.”

They also show that the first deferred payment, due May 8, 1867, was paid by the partnership.

Stables were built on the property, and it was used by the partnership in its business.

Subsequently Thos. P. May, by facts not necessary to mention, became a debtor of the United States in an enormous sum. By an act passed on May 14, 1867, May assigned to the United States, in part payment of his debt, a large amount of property, “ real, personal and mixed,” itemized in the act, and comprising the following, viz.: “ The interest of the said May in and to the Carrollton Railroad Company, and the property, stock and appurtenances thereto belonging, the value of which is estimated at $480,000.”

By a further clause in said act May bound himself to “ sign and execute all acts or other instruments of writing that may be necessary to give to the United States full, complete and valid titles to the property herein transferred.”

Accordingly, on May 16, 1887, May executed a further and more specific transfer to the United States of his interest “in and to the New Orleans & Oarrollton Railroad, the lease and other franchises thereof, and the railroad tracks, rolling stock, engines, cars, live stock and other appurtenances thereunto belonging,” proceeding to refer to and particularly describe the nature of the property and interests as fixed by the terms of the lease and the articles of co-partnership. The act further recites that it was “ executed in confirmation of the act of transfer of the transfer of said right, title and interest in the said railroad and the said lease thereof, and of other property, real and personal, belonging to said May, passed on.May 14, 1867.”

On October 31, 1867, the United States executed an act of transfer to Bonneval, Hernandez and Binder, of all its right, title and interest in and to the property therein described, including:

1. Its interest in the lease of the railroad.

2. In the partnership between May, Graham and Beauregard; and

3. Various pieces of real estate specifically described, and, amongst others, the square of ground in controversy.

In the same month an act was passed between the New Orleans- & Oarrollton Railroad Company, Beauregard, Bonneval, Binder and Hernandez, by which this property passed to the present defendant, which has since possessed, occupied and used the same.

In April, 1871, Thomas P. May availed himself of the bankrupt law of 1867.

His schedules exhibited large debts and no assets whatever. He specifically declared therein, under oath, that he had no real estate, and that there was none “ to the possession or enjoyment of which he is entitled.”

He also inserted therein the following sworn statement:

“ In May, 1867, by acts before Graham, notary, I transferred, to secure the United States, all my real and personal property, consisting of real estate in square bounded by Canal, etc., * * * the Payne plantation, etc., * * * my inte:rest in Carrollton Railroad,” etc.

A regular assignment was executed to E. E. Norton, assignee, who has never been discharged.

There being no property surrendered as appeared by the schedules, no creditor appeared to prove his debt. In due course May obtained his discharge.

He subsequently left New Orleans and died in London, England, in 1887.

The present is a petitory action brought by his major daughter and by his widow as tutrix of his two minor children, to recover his Interest in the square of ground hereinbefore alluded to, alleging that May validly purchased the same in 1866, had never sold or conveyed it, died in the ownership thereof, and that plaintiffs inherited the same from him; that defendant is a wrongful possessor and should be condemned to deliver the same and also to pay $46,000 as rents and revenues.

Numerous defences are interposed which we shall consider, as far as necessary, in disposing of the case.

I.

Whatever sympathy we might feel with the children of May, we are bound to recognize the fact that they stand in the shoes of their father, and have no title to any consideration which would not be extended to him if he were personally plaintiff. If there be any ambiguity in the acts by which it is claimed that May had divested himself of this property, his acts, words and conduct showing the meaning and effect which he himself attributed to them should have great weight in their construction.

His sworn declarations, which we have quoted from his bankruptcy proceedings, admit of but one of two explanations: Either (1) that he interpreted and intended his transfers to the United States as operating a divestiture of his title to this property; or (2) that he designedly concealed his interest with the purpose of defrauding his creditors.

The first hypothesis would go far toward ending this controversy. The second would drive him away from the portals of justice as coming with unclean hands. Hood vs. Frellson, 31 An. 577.

The first is unquestionably the correct hypothesis, which his children will hardly dispute, and which is maintained by May’s silent acquiescence in the effect given to his conveyances down to the day of his death.

We can not concur in the restrictive interpretation placed by •counsel for plaintiffs on May’s sworn statement in his bankruptcy schedules that he had transferred to the United States “ all his property real and personal.” He claims that this expression is limited by the succeeding statement mentioning the particular properties so -transferred. We think the proper construction is reached, not by restricting the words “ all his property,” but by amplifying the meaning of the succeeding descriptive terms, and by attributing to the words “ my interest to the Carrollton railroad,” the signification of his interest in everything connected with the road, including the partnership and all its property. No other interpretation is consistent with reason and honesty; for if he did not mean “all his property,” why did he use that phrase? And if he meant to exclude any property, why does it not appear on his schedule?

It is obvious that this declaration was made to explain why he had no property to surrender and surrendered none. It is nothing less than a solemn declaration under oath that May intended by his acts of transfer to the United States to embrace all bis property, including that here in controversy.

II.

There can be no doubt that by the act of May 14, 1867, May intended to transfer and did transfer to the United States his interest in the partnership between Beauregard, Graham and himself, and in all the property belonging to it. The terms used admit of no other interpretation. The Carrollton Railroad Company was the firm name in which the partnership conducted its business and kept the books of account required by the articles. He transferred his interest, not in the railroad, but in th e railroad company, and in the property belonging to the company. The distinction is emphasized by the succeeding act of May 16, which was obviously intended to make a more specific and descriptive transfer of his particular interest in the railroad itself, the lease thereof, and its franchises and appurtenances.

• It is equally clear, under the evidence, that this square of ground was bought and paid for with the funds, and 'for thehceount and use, of the partnership. The books of the partnership explicitly show this, and May has never contradicted, and could not contradict them, at least without showing fraud. Every fact in the case fully corroborates the books.

Such a purchase of immovable property by members of a commercial partnership, with the partnership funds and for the partnership account, though the title be taken in the name of the individual partners, has precisely the same effect as if the title were taken in the name of the partnership. In either ease the individual partners become joint owners. Allen vs. Whetstone, 35 An. 849; Thomas vs. Scott, 3 Rob. 256.

But though the legal title vests in the individual partners and the share of each is liable to seizure for his individual debts, yet, as between the partners, the property is equitably and practically partnership property.

This subject was dealt with by this court in the case of Bacas vs. Ramos, 10 La. 417, where the title to the immovable was taken in the name of J. Ramos, A. Bacas and J. Preba, partners trading under the firm and style of J. Ramos & Oo.” After the purchase Bacas transferred his interest in the partnership to his copartners. He subsequently claimed that this transfer did not divest his ownership of the above immovable, and sued his former partners for a partition thereof. Judge Martin, as organ of the court, said: “ The only question which this ease presents is, whether the house and lot was part of the partnership property. The counsel for plaintiff contends that this is joint property, in which he is a joint owner, and not partnership property. 3 La. Rep. 496. The act of sale by which the premises were acquired shows that the purchase was made by the parties to this suit as partners, trading under the firm of Joseph Ramos & Oo., and a note was given for one-half the price, bearing the signature of the firm. The partners were joint owners, and either of them might have sold his undivided share or interest in the property, which was liable to seizure for his private debts. But in case of such sale and seizure, he must have accounted to his partners for the price. Neither could he have occupied any part of the property for his private use, without compensating his copartners. In fact, the title to one undivided third was in him, but the value thereof belonged to the partnership. When the plaintiff withdrew from the firm and received a given sum, he relinquished his interest in the value of the house and lot in question to his co-partners. He has, therefore, no right to demand a sale for partition, as immediately after it the price, being the value of the premises, would instantly become the property of defendants. The distinction which we have taken between the title by which the property is held and the value thereof is well known in the other States of the Union, where the common law prevails. These rights are there distinguished by the expressions legal title ’ and equitable title.’ There, courts of equity enforce the rights of the equitable owner by compelling the legal one to make a conveyance to the other, precisely as this court did in the case of Hall vs. Sprigg, 7 Mart. 243.”

This case was affirmed, and like principles announced in a later decision. Thomas vs. Scott, 3 Rob. 256.

We'consider that these authorities dispose of May’s rights in this case. If a transfer, by one partner to his copartners, of the former’s interest in the partnership divests his beneficial interest in im- • movables held by the partners jointly for account of the firm, a like transfer to a third person can not have a less effect. In the latter, as in the former case, the transferror is disabled from contesting.the title of his transferee, or from setting up adverse claims on such property.

We, therefore, hold that the transfer by May to the United States had precisely the effect which both parties obviously, at the time of the contract and ever afterward, intended and considered that it should have, viz.: A valid divestiture of May’s rights in the property in controversy.

As plaintiffs must recover on the strength of their own title, and not on the weakness of that of defendant, we have no occasion to discuss the questions raised as to the validity of subsequent transfers by the United States and its assigns to the defendant.

III.

The foregoing views render it unnecessary to discuss at length the ■defence based upon May’s assignment in bankruptcy, as operating a divestiture of his title which would bar this action. We have, however, studied the question very closely, under the light thrown upon it by the authorities cited, and by the very able arguments on both ■sides.

The decisions of this court to the effect that cession of property under our State insolvent law does not operate a translation of title have no application to the United States Bankrupt laws, because they are based on express provisions of our Oivil Code, of which it is only necessary to quote Arts. 2175 and 2178:

“The surrender does not give the property to the creditors; it only gives them the right of selling it for their benefit and receiving the in•come of it, until said.” Art. 2175.

“ As the debtor preserves his ownership of the property surrendered, he may divest the creditors of their possession of the same, at any time before they have sold it, by paying the amount of his debts, with the expenses attending the cession.” Art. 2178.

The bankrupt law contains no such provisions, but, on the contrary, declares:

“ As soon as the assignee is appointed and qualified, the judge, or, where there is no opposing interest, the register, shall, by an instrument under his hand, assign and convey to the assignee all the estate, real and personal, of the bankrupt, with all his deeds, books and papers relating thereto, and such assignment shall relate back to the commencement of said proceeding in bankruptcy, and thereupon, by operation of law, the title to all such property and estate, both real and personal, shall vest in said assignee.” *■ * * Sec. 14 of Bankrupt Act of 1867.

That the assignee holds the title in trust, first for the creditors, and, as to any residumn after their satisfaction, for the bankrupt, is doubtless true. But it is certainly not in the power of the bankrupt, by his simple ipse dixit, to terminate the trust and divest the title of the assignee in his own favor. If he has reasons, to urge why the assignee’s title should be terminated, and the property restored to him as residuary eestui que trust, this is not the forum in which to vindicate them. He must go to the court which has the control and administration of the trust, and there make his showing and obtain such relief as he is entitled to. Bump on Bankruptcy, 10 Ed., pp. 247 and 248.

Until then this and every other court must respect the title of the assignee. Erwin vs. U. S., 97 U. S. 392; Clark vs. Clark, 17 How. 315; Vasse vs. Comegys, 1 Peters, 193.

Judgment aflirmed.


text:
    No. 11,025.
    John Calder & Co. and D. R. Calder vs. Their Creditors.
    1. The general rule o£ our insolvent laws requires that property surrendered shall be held intact during the pendency oí proceedings for the election of a definitive syndic; and provisional syndics, when appointed, are not generally authorized to sell property, but are required to hold all the assets and deliver them to the syndic.

      2.But this general rule suffers exceptions in cases where, owing to the nature and situation of particular property, a sale is necessary to prevent its deterioration and preserve its value for the benefit of all concerned, in which cases the sale may be sustained as a conservatory act which the law expressly authorizes provisional syndics to perform.
    8. It certainly requires a strong case to justify the sale of immovable property as a conservatory act; but in the case of a sugar plantation in course of cultivation where it is admitted that the insolvency is without means to run it, that the abandonment of its cultivation would operate a great deterioration of value, and that its prompt sale is necessary for the interests of all concerned, and particularly when the first mortgage creditor to the probable value of the plantation and the provisional syndics concur in the facts and in the opinion of the advisability of the sale, the judge is vested with a legal discretion to order the sale as a conservatory act, and this court approves its exercise.
    APPEAL from the Civil District Court, Parish of Orleans. King, J.

      Henry L. Lazarus and Horace E. Vpton for Provisional Syndics, Appellants:
    1. A debtor can arrest the executory process of his creditor whose act of mortgage contains the non-alienation clause by surrendering his property to his creditors, when the executory proceedings must be cumulated with the proceedings in insolvency. Wheeler vs. Stewart, 18 An. 673; 11 An. 482.
    2. When a debtor cedes his goods to his creditors, and a stay of proceedings is granted, the cession operates the civil death of the debtor.
    I-Ie can not, consequently, remain a party in a suit. The judge’s order stays all proceedings against the debtor, whether they be carried on against his person, general estate, or any part of it.
    His rights pass to other persons, and can not be affected by legal proceedings to which the new ones are not; parties. Dimes vs. Estevan, 1M. 193.
    3. A cession of property and the order thereon, operates a stay of all proceedings, even the sale of property encumbered as security fora debt, which a court of competent jurisdiction, by a judgment rendered before the failure, had ordered to be sold. Syndic of Bermudez vs. I. Ibanez & Milne, 3 M. 39.
    The decree ordering a stay of proceedings against the owner of the land ought to have stopped the judicial sale of that land, and that the sale made in contravention to it was illegal and void.
    This is the language of the authority last cited. 3 M. 39.
    4. Debts are not extinguished by the creditor’s insolvency; they pass to his representatives. West vs. Creditors, 1 An. 365.
    Property sequestered must, on defendant’s cession, be delivered to his syndic to be sold in due course of law, plaintiffs’ privilege being preserved on the proceeds. Duclerc vs.*Crebassol, 19 L. 91.
    5. The acceptance of the cession vests the property in the creditors, so as to be no longer liable to seizure or execution. 2 B. 187; 9 B. 219; 3 An. 387; 4 M. 562; 3 An, 490; 4 N. S. 625: 10 M. 178; 5 B. 101; 3 An. 582; 7 B. 61; 7 Am. 40; 14 An. 439.

      -6. Before any proceedings can be taken looking to the sale of the property of the insolvent, and the application of the proceeds to his debts, it is necessary that a syndic should have been qualified, and an order of court for the sale obtained. As an incident of such proceedings a meeting of creditors must be called for the purpose of determining the terms and conditions of sale.
    . Spears vs. His Creditors, 40 An. 650.
    7. The provisional syndic has “ nothing to do with the sale of the estate. He is a mere depository, and lie takes the property as he finds it upon the schedule of the insolvent, accordingto the approximate value therein mentioned, which value is to serve as the basis of the amount of the bond which he is bound to furnish.
    “Thus it is clear, that when the provisional syndic renders his account to the syndics appointed by the creditors, no change has taken place in the property which came under his administration, and that the same is by him delivered over to his successor under the schedule, and in the same state in which it was at the time of the surrender, except whatever increase may have taken place from the rents and income by him received, or from the collections he may have made.” Barkley vs. His Creditors, 11R. 30; Pitcher & Co. vs. Creditors; 40 An. 784
    •8. a surrender is made by the insolvent debtor to his creditors, and it is-accepted by the judge for their benefit. In contemplation of law all proceedings looking to a disposition of the property surrendered and the application of its proceeds to the payment of creditors, whether privileged or ordinary, are to be postponed until they have chosen a definitive syndic, and he shall have qualified and furnished bond.
    In the interest of an orderly administration of justice we deem it necessary to rigidly enforce these provisions of the insolvent law. Pitcher vs. His Creditors 49 An. 785; 1 R. 538; 8 L. 301; 35 An. 257.

      White, Parlange & Saunders for Whitney Bank, Appellee,
    cited: Rev. Stat., Secs. 1792, 1793; 43 An. 124; Rev. Stat., Sec. 1816; 41 An. 445.

      Henry C. Miller for the Oanal Bank, Appellee:
    ’The mortgage importing confession of judgment with the stipulation de non • alienando secures to the creditor for the payment of his debt the right to seize and sell the mortgaged property, as if still in the possession of the mortgagor, irrespective of any alienation or change of possession. See Nathan vs. Bee, 2 N. S., p. 34; Nieolet vs. Macon, 13 Ba. 315; G-uesnard vs. Soulie, 8 An. 58; Suecessson of Thompson, 42 An. 122; 1 Hennen’s Digest, p. 653, No. 2.
    Hence, no title created by the debtor can disturb this remedy of the creditor to proceed directly against the mortgagor for the seizure and sale of the property. Nor does the death of the mortgagor change the remedy of the creditor and compel him to seek payment with other creditors in probate court. Ibid.
    Jt follows that the cession of property by the mortgagor, no more than his death, can affect the remedy of the creditor holding the mortgage of the character under consideration. Ibid., and Devron vs. His Creditors, 11 An. 482.

      Carroll & Carroll, Amici Curice.

   The opinion of the court was delivered by

Fenner, J.

The Whitney National Bank is a creditor of D. R. •Oalder for $20,000, secured by first mortgage on the Orange Grove plantation. After fruitless efforts by the insolvent and the bank to effect a private sale of the plantation, the bank sued out executory process in the Civil District Court of this parish, under which the plantation was duly seized and advertised for sale to take place on March 19, 1892.

On the 15th of February, 1892, Oalder made, in the proceeding now before us, a cession of his property under the State insolvent law. Provisional syndics were duly appointed and qualified.

Thereupon the bank intervened in the insolvent proceedings, and, representing the necessities and circumstances of the case as indicated in the agreed statement of facts, which we reproduce further on, they took a rale upon the provisional syndics to show cause why the court should not make its order allowing the sale of the plantation to proceed UDder the order of seizure and sale as advertised, under the condition that the proceeds should be paid over to the syndics, and held by them as funds of the insolvency subject to the same mortgages resting on the plantation, and to be distributed by them according to law. The syndics appeared and showed cause against the rule ón two grounds, viz.:

1. That, under the law, the court is without authority or power to grant the relief demanded.

2. That no legal order for the sale of the property referred to in said rule can be granted until a definitive syndic is elected herein, and the cession made by the insolvents accepted by their creditors.

The case was submitted to the court under the following statement of facts:

“ 1. The Whitney National Bank of New Orleans held and owned, and still holds and owns, the note of D. R. Oalder, one of the above named insolvents, for $20,000, dated March 80, 1889, payable one year from date, and payment extended to January 1, 1891.

2. The said above described note was secured by first mortgage on the Orange Grove plantation, in Lafourche parish, Louisiana, owned by said D. R. Oalder, before H. N. Ooulon, notary public in said parish of Lafourche, and duly recorded; said mortgage contains the pací de non alienando.

“8. On December 26, 1891, the said Whitney National Bank sued' out executory process on above mentioned note and act of mortgage, in the suit entitled Whitney National Bank vs. D. R. Oalder,’’ No. 84,586 of the docket of the Civil District Court for the. parish of Orleans, in which said parish said D. R. Oalder was resident and' domiciled at the time.

“4. In said proceedings, after due notices and delays, the writ of' seizure and sale issued and was placed in the hands of the sheriff of Lafourche parish for execution, and thereunder, after due notices and delays, the said sheriff seized, and then advertised for sale, according to law, the said Orange Grove plantation.

“5. After the issuance of said writ and the seizure of said plantation, as above recited, the said John Calder & Co. and the said D. R. Oalder filed their petition making a cession of their property to their creditors, under the insolvent laws of Louisiana, in the proceedings hereinabove entitled.

6. The insolvents surrendered as part of their assets seven sugar plantations under cultivation, one of which was the said Orange Grove plantation.

“ 7. The only funds surrendered by the insolvents, or since received by the provisional syndics, are $7000, part of the proceeds of the crop of 1891, made on said sugar plantations, or on some of them, and now applicable to the privileged or ordinary creditors of the insolvents.

“ 8. It will cost about $1500 a month to cultivate and keep up the Orange Grove plantation from now until July, 1892.

“9. If said Orange Grove plantation is not so cultivated and kept up, it will rapidly and largely deteriorate in value; the drainage will become obstructed with vegetation and earth; the labor will leave the place; the crop will be lost, and a heavy expenditure of money will be necessitated to restore the plantation to its present, earning capacity and value, and in consequence of such deterioration the plantation will sell for much less than could be obtained for it now.

“ 10. The opinion of persons who own or deal with sugar plantations is that they will not sell as advantageously later in the season as they would now; that while the plantation might sell for a little more later on, it would not, in all probability, sell for as much more as would have been expended in cultivating and keeping it up. And if, in consequence of an unfavorable season, too much rain or too little, a crevasse or visitation of worms, the crop did not look well, the plantation would probably sell for much less than it would bring now.

“ 11. The syndics have not sufficient funds in the insolvency to cultivate and keep up all the plantations surrendered, even if they are permitted to use all the funds in the insolvency for that purpose. If they undertake to cultivate the places, they will be compelled to borrow money for that purpose; and if the plantations should not find a purchaser When offered for sale, then the syndics will be compelled to borrow largely in order to complete the crop and get back the sums so borrowed.

“ 12. The said Orange Grove plantation was offered for sale nearly six weeks preceding the cession of property herein, and the highest price offered in that time did not equal the amount of the mortgage resting on said plantation.

“13. The meeting of creditors for the election of a syndic will open in this case on March 21, 1892.

“14. If the Whitney National Bank is permitted to spll under its writ, as demanded in its rule, it is willing to advance the funds necessary to run the plantation until the date of the sale; and the provisional syndics are of the opinion that if such sale can be legally allowed by the court, it will be greatly to the interest of all concerned.

“Horace E. Upton and H. L. Lazarus,

Attorneys for Prov. Syndics.

“ White, Parlangb & Saunders,

Attorneys for Whitney National Bank.”

After hearing, judgment was rendered making the rule absolute and granting the order as prayed for, from which the provisional syndics prosecute the present appeal.

The ease really presents no issue, except the issues of law raised on the pleadings, viz.: to-wit: (1) whether, in any case, the court has power to order the sale of property surrendered before the election of a definitive syndic, and (2) whether it had authority to make the particular order here granted.

If the court had the authority to order the sale, the statement of facts exhibits conclusively a proper case for it's exercise. We deal with the substance, not the form of things. It is not of the slightest consequence whether the order is applied for by the bank or by the provisional syndics. Both were before the court; both submitted the question to the court; both agreed upon the facts which rendered the sale necessary; and the syndics expressly told the court that they were of the opinion that if such sale can be legally allowed by the court, it will be greatly to the interest of all concerned.”

Their counsel now say in their brief: The provisional syndics are not before the court urging that the sale of the mortgaged plantation was a conservatory act necessary for its preservation and safe keeping.” We can give no heed to such a statement. They were before the court upon an agreed statement of facts, showing that the sale of property was a conservatory act necessary to preserve the property from great deterioration in value, and advising the court that, if it could be legally done, the sale should be ordered in the interest of all concerned.

We can not permit them, in this court, to impugn the judgment of the court below on any other question than the one submitted, of judicial authority vel non.

It is equally insubstantial to say that this sale was made in a proceeding conducted against the debtor, and under order granted in a proceeding different from the cession, and which had been stayed by the latter.

The sale was really made under and by authority of the order here complained of, issued by the court in the insolvent proceedings. The bank asserted no pretension of right to proceed with the sale under the original order. It acknowledged the paramount authority of the insolvent court, and applied for its order as the warrant under which the sale should be made and according to which the funds realized were to be held, controlled and distributed by that tribunal. The case differs, in no respect, from what it would have been had the court rendered an independent order of sale without reference to the pending foreclosure proceeding. It prejudiced no right and was a wise exercise of discretion in the interest of economy, to allow the sale to proceed under the pending advertisement, if it was legal to make the sale at all.

It was, moreover, a substantial compliance with the provisions of the law under which suits against the insolvent do not abate, but are only stayed by the' cession, and which require further proceedings therein to be' conducted before and under the authority of the insolvent court. O. P., Art. 165, No. 3; Rev. St., Sec. 1816; State ex rel. Cohen vs. Judge, 41 An. 41.

These formal objections being thus eliminated, the sole question remaining is whether or not the law vests the insolvent court with authority, in any case, to ordei the sale of assets surrendered prior to the meeting of creditors and the choice of a definitive syndic.

It can not be denied that the general rule prescribed by our insolvent laws requires that the property surrendered shall be held intact during the pendency of the proceedings for the election of a syndic, and that provisional syndics, when appointed, exercise, ordinarily, only powers of administration and must hold and deliver to the definitive syndic, when elected, all the assets which have been received by them. Such are the provisions of the law enforced by uniform jurisprudence. Rev. Stat., Secs. 1793, 1794, 1812; Pitcher vs. Creditors, 40 An. 784; Spears vs. Creditors, Id. 650; Barkley vs. Creditors, 11 Rob. 30.

But the law-maker could not close his eyes to the fact that during the considerable delays that might intervene before the appointment of a definitive syndic, sometimes extending over many months, an inflexible adherence to this rule might impair and even utterly destroy the value of some of the surrendered assets. Hence he wisely invested provisional syndics with the power of performing all the conservatory acts which may be necessary, as well for the interest of the insolvent debtor as for that of the mass of creditors.” Rev. St. 1793.

It is, to our minds, self-evident that these powers embrace the power of sale when that is necessary for the conservation of the property or its value. Even in cases of attachment the law wisely provides that property attached, if of a perishable nature, and subject to be lost or deteriorated during the pendency of the suit,” may be sold pendente lite.

The judge, before whom the cession is pending, is vested with the discretion to determine what are such conservatory acts as are necessary to preserve the property or its value for the interest of all concerned.

It certainly requires a clear case of necessity to justify the sale of immovable property as a conservatory act.

But no one can read the statement of agreed facts without perceiving that it presents the strongest possible case. The syndics themselves, who are the only appellants, unreservedly conceded the necessity of the sale in order to prevent serious deterioration in value, and that it would be ‘ greatly to the interest of ail concerned. ’ ’ What was the judge todo? Was he to sit idly and permit the plantation to go to waste and ruin, sacrificing the whole benefit of the plante.d crops? Or was he to embark the provisional syndics in the hazardous enterprise of borrowing large sums of money to run seven sugar plantations? If not, there was no other alternative but to order the sale to proceed, and, in so doing, we think he wisely exercised a legal discretion.

Judgment affirmed.