author: Wxly, J. Taliaferro, J.

text:
    No. 2180.
    John West v. Ar. Miltenberger.
    The evidence in this case shows that during the year 1862, while Confederate notes were the-only circulating currency in the Southern States, that B, a commission merchant in the city of New Orleans, had a lot of Confederate money in liis hands to the credit of A¿ that, at the request of A, B, the merchant, addressed a letter of credit to 0, the creditor* of A, authorizing him to draw for the amount of the indebtedness of A; that C did draw on B for a portion of the indebtedness of A, and received the amount in Confederate money. C, the creditor of A, now brings suit against B for the amount of the indebtedness of A, disregarding the transactions under the letter of credit whereby he had received a portion of his debt in Confederate money.
    Held — That under this state of facts B, the merchant, can only be considered as the agent of A to pass over the Confederate money in his hands belonging to A to his creditor, and ho can not, therefore, be hold liable to C on his assumpsit of the debt of A, which could only be discharged in lawful currency.
    APPEAL from tlie Sixth District Court, parish of Orleans.

      Cooley, J.. B'ays & New, for plaintiff and appellee.

      Cooley & Phillips, for-defendant and appellant.
    This' case was tried by a jury in the court below.
   Wxly, J.

The defendant has appealed from a judgment on the verdict of a jury against him based on the following instrument, viz:

“New Orleans, February 3, 1862.

John West, Esq., Lumpkin, Georgia: Pear Sir — In accordance with-the instructions of Doctor J. T. Nolan, of West Baton Rouge, I have placed to your credit six thousand five hundred dollars ($6500), which-amount I hold subject to your order. Yours respectfully,

(Signed) AR. MILTENBERGER.”

The defense is that the consideration of the letter of credit was Confederate money. In support of this plea the defendant attempts to-prove that he was authorized by his constituent, Nolan, to sell his sugar crop for Confederate money, that Nolan had no other funds in his hands, and when he gave the letter of credit to the plaintiff as-requested by Nolan, the motive or consideration to him was Confederate money.

Assuming that such was the case, we do not think the defense a valid one. The plaintiff is not in any manner connected with this-Confederate transaction: he swears he never believed that the consideration in tlie stipulation between Nolan and the defendant was Confederate money; the debt which he held against Nolan was not for that unlawful currency; he is simply trying to collect a valid and lawful debt against the defendant, his delegated debtor.

The defendant argues that under the authority of the Union Bank *. Bowman, 9 An. 196, he can set up equities between him and Nolan, with whom the stipulation was made in favor of the plaintiff. Certainly he can. But the defense urged by Mm is not based upon any equities existing between the contracting parties; it is based upon immorality. If the plaintiff had taken part in the transaction resulting in the letter of credit declared on, the immorality thereof might be an effectual bar to Ms recovery, the policy of the law being to leave guilty suitors where they have placed themselves in such contracts. But he did not take part in the immoral’dealing complained of, nor was he aware thereof.

However immoral the consideration of the stipulation between the defendant and Nolan may have been, the legal obligation which arose out of it or subsequent to it, in favor of the plaintiff, now sought to be enforced, was a lawful one.

As to the plaintiff, the undertaking of the defendant to pay the debt due him from Nolan was not immoral; his debt against Nolan being-lawful, the delegated debtor’s obligation in his favor was likewise lawful.

•The defense urged is practically this: The defendant ought not to be compelled to discharge his obligation to the plaintiff, based on the letter of credit, because before that obligation was incurred, there was a contract between him and Nolan, in which, for a sum of Confederate money, he agreed to undertake the. payment of this debt for Nolan.

Now the defendant is not sued by Nolan to compel him to make good the assumption of the debt as agreed upon, for Confederate money. That contract was executed, on the part of Nolan, by paying the Confederate money, and on the part of the defendant, by making the assumption or giving the letter of credit to the plaintiff. We therefore think the obligation of the delegated debtor to the plaintiff, evidenced by the letter of credit, is not tainted with immorality, and that it can be enforced.

Judgment affirmed

On Rehearing.

Taliaferro, J.

A review of this case inclines us to think there was error in the deductions drawn from the evidence in our first-examination of it. Nolan, about the time he instructed Miltenberger to place $6500 to tlie credit of West, had evidently no other than Confederate money in his hands. Many letters of Nolan written to his merchant during- the latter part of the year 1861 and the early part of 1862 establish this beyond all doubt. He spoke of Confederate money as the prevailing currency — expressed his confidence in the success of the rebellion — was entirely willing to receive and did receive the proceeds of sale of his sugar crop of 1861, in Confederate money. The testimony of Collens, the clerk of Miltenberger, abundantly establishes and confirms the fact that Nolan had no other currency of any kind in the ■hands of Miltenberger than Confederate money. In regard to the payment of Nolan’s debt to West, Miltenberger can not be considered in ■any other light than as agent of Nolan to pass over to West a certain amount of Nolan’s Confederate money. He was not the delegated debtor of West nor did he assume to pay any debt for Nolan. Nolan under date of February, 1862 writes to Miltenberger thus: “ Please place to the credit of John'West Esq., Lumpkin, Georgia six thousand five hundred dollars, and wrote to him that that amount is subject to his draft.” The next day Miltenberger writes to West: “In accordance with instructions of Dr. J. T. Nolan, of West Baton Rouge, I have placed to your' credit six thousand five hundred dollars, which amount I hold subject to your order.’’ Then we- think it beyond doubt that Nolan intended and expected the six thousand five hundred dollars to be placed to the credit of West, to be part of his Confederate money in the hands- of Miltenberger, and that Miltenberger did place that sum to the credit of Westin Nolan’s Confederate money. He had n-o -other kind of money belonging to Nolan in his charge, and when there was a universal suspension of specie payments everywhere throughout the Southern States, and Confederate money the sole and exclusive currency in this country, it is not to be presumed that when, under the instructions of Nolan, he wrote to West that he had placed six thousand five hundred dollars to his credit, that he meant any other kind -of currency than Confederate money. Under the state of things then -existing as to currency, the conclusion is not to be avoided, that West know, as everybody else knew, of the then universality of Confederate money as currency in the Southern States, and that he did not expect payment in anything else. But the record shows that West did receive five thousand one hundred dollars of the amount placed to his credit, and in this manner. He drew a draft on Miltenberger for five thousand one hundred dollars, and sold the draft to a Georgia bank and received the amount in Confederate treasury notes. This is what he said himself in answer to an interrogatory. His purposes did not require him to draw for the whole amount in Miltenberger’s hands, and the balance remained without appropriation and Miltenberger has it yet in his possession, having preserved in kind the Confederate paper money which by Nolan’s directions and sanction he had received in payment for his crop of sugar. The pretension of West now, after that ephemeral paper currency has become utterly worthless, that he never believed that Nolan deposited Confederate money to his credit with Miltenberger, can not have much weight against the aggregate mass of testimony in the record which goes to show the contrary.

For these reasons it is now ordered that our former decree in this case be annulled and set aside, and it is further ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that this suit be dismissed at plaintiff’s cost, and that judgment be rendered rejecting the plaintiff’s demand.

Mr. Justice Wyly adheres to the former opinion of the court.


source: Caselaw Access Project

author: Ludeling, C. J. Wyly, J.

license: Public Domain

text:
    No. 3208.
    Stewart, Hyde & Co. v. Madam Suzette Buard.
    Where five parties own a tract of land in common, and all agree to sell and do sell and transfer it to one person, and the vendee gives Ms notes to each one for their respective «hares of the land, and all the vendors join in the sale in one act, in which act of sale it is expressly stipulated that a mortgage is retained on the whole property as security for • the payment of each one of the notes, and the vendee makes retrocession of four of the five shares of the tract of land to four- of the vendors, then, and in that case, the third holder, before maturity, of the notes given to the fifth vendor for one-fifth interest in the land may enforce his mortgage rights against the whole tract of land first conveyed without reference to the retrocession.
    If it be stipulated in a contract that in case the obligation is discharged in United States treasury notes, it shall be in the proportion of one dollar aud thirty cents in currency for every dollar expressed on the face of the obligation, the proper decree and judgment is to reserve to the maker of the notes the option to discharge the obligations in gold. A decree that the defendant be ordered to pay in currency with thirty per cent, additional is incorrect, bocause at the time of payment the price of gold might be less than thirty .per cent, premium. /

    APPEAL from the Ninth Judicial District Court, parish of Natchitoches.
    Orsborn, J. Ciarle, Bayne & Bensliaiv and Chaplin & Son, for plaintiffs and appellees.

      Bierson & Bevy, for defendant and intervenor, appellant.
   Ludeling, C. J.

The plaintiffs sue the defendant, Suzette Buard, on two promissory notes, each for fifteen hundred dollars, with eight per cent, per annum interest from maturity and due respectively on the first of February, 1868, and first of February, 18G9. They allege that, by a written contract, it was stipulated that if the notes be paid in United States treasury notes, it should be in the proportion of one dollar and thirty cents in currency for every dollar expressed on the face of the note. They allege that the notes were transferred to them before maturity as collaterals according to law; that the notes are secured by a mortgage on certain property described in an act of sale, to be found in the record; and they pray for judgment against the defendant for $3900, with interest at the rate of eight per cent, per annum from maturity of the notes; and they further pray for the recog-. nition of their mortgage on all the property before mentioned.

J. E. Buard et al. filed! an intervention in this suit. They allege that they and L. A. Buard were the owners of all the property claimed to be mortgaged to the plaintiffs, on the nineteenth day of March, 1866; that they inherited the property from their father, L. A. Buard, and each owned an undivided fifth of the whole property. That on the nineteenth of March, 1866, they joined in an act by which- they sold and transferred to their mother, Suzette Buard, their interests in the property in consideration of her executing her notes, in favor of each heir for the sum of six thousand dollars. That on the nineteenth day of June, 1867, their mother being then unable to pay the nptes given for the price of the property, and the future payment by her being hopeless, retroceded by public act the aforesaid property to all the vendors. They aver that by this act they were reinvested with their interests and ownership in the property, and that all the notes, except those payable to L. A. Buard, Jr. (of which those sued upon form a part), were surrendered and canceled. They allege that the plaintiffs knew when they took the notes from L. A. Buard, Jr., the extent of their mortgage security, and the interest of L. A. Buard in tbe property. Tiiey further aver that the interest of L. A. Buard in the prop- - erty is alone liable to the mortgage given to secure the notes sued on. They resist the plaintiffs’ demand to have their property sold under the mortgage. There was judgment in favor of the plaintiffs, and the defendants and the intervenors have appealed.

On the trial of the cause the intervenors offered witnesses to prove the inability of Suzette Buard, to pay for the property sold to her; and that the plaintiffs knew the extent of their mortgage and of the interest of their transferrer in the property sold, for which the notes sued on were given. The plaintiffs objected on the grounds that the evidence was irrelevant, and was intended to modify or explain by parol the written contract, which objections were sustained by the court, and the intervenors took a bill of exceptions to the ruling. The testimony was not offered to contradict or explain the authentic acts; but to prove facts, first, which occurred after the making of one act, and second, facts which showed the necessity for making the other act. The objection of irrelevancy is very weak, and although in this case, under the pleadings, there was no necessity to prove the inability of the buyer to pay the price, yet we can see no good reason to prevent the parties from proving .the fact, to show their good faith. In Chretien v. Richai’dson the court held that “when a contract has been rescinded extra judicially, or by a consent decree, the onus of proving the necessity devolves upon the party who claims the benefit of the resolution.” 6 An. p. 6; 7 An. 135. The testimony should have been received.

From the evidence in the record, it appears the notes sued on were executed in favor of one of the five heirs of L. A. Buard, to wit: To L. A. Buard, Jr., and that he had pledged them to the plaintiffs. The notes were given by Mrs. Buard in consideration of the abandonment of all claims against the estate of A. L. Buard, deceased, and the transfer and sale of all his right and interest to all the property of the succession to his mother. For a similar purpose she had executed like notes to the other heirs of the succession. These different stipulations by the mother in favor of the five several heirs of her husband in consideration of the sale of their respectivo rights in the succession of their father, were contained in one act passed on the nineteenth of March,-1866. In this act the vendor’s privilege was retained, as well as a mortgage upon the property sold. What are the rights and obligations growing out of this act? The plaintiff insists that it conferred on the holder of each note the right to enforce the mortgage to pay his debt against all the property, notwithstanding the rescission of the sale for the non-payment of the price. We can not give our a.-sent to this proposition.

Article 2079 of the Civil Code declares that “several obligations, Although created by one act, have no other effect than the same obligations would have had if made by separate contracts; therefore they are governed by the rules which apply to contracts in general.” In the act already referred to Mrs. Buard bound herself to pay thirty thousand dollars for the property of the succession of L. A. Buard, and she gave her separate obligations in favor of each of the five heirs for six thousand dollars thereof — being for his share of the property.

Article 2073 says that “ several obligations are produced, when what is promised by one of the obligors is not promised by the other, but each one promises for himself to do a distinct act; such obligations, although they may be contained in the same contract, are considered as much individual and distinct as if they had been in different contracts, and made at different times.”

Article 2074 declares: “In like manner, a contract may contain distinct obligations to perform different things in favor of several persons; the obligations in this case are several and unconnected, and each •obligee has his separate and distinct remedy on the obligation created toward him.” Construing the contract of the nineteenth March, 1866, in accordance with these articles of the Civil Code we are not left in loubt as to the rights and obligations which spring from it

The contract contains distinct obligations to perform different things in favor of several persons; that is, the purchaser obligated herself to pay to the several persons who had sold their interests in the property, the price of their property severally. The obligations are several and unconnected, and “each obligee has his separate and distinct remedy on the obligation created toward him” — in the same manner as if the obligations had been in different contracts, made at different times. 15 La. 596, Walton & Kemp v. Lizardi et al; 5 Rob. 73, Erwin v. Green et al.

What then was the remedy that each seller had on the obligation created in his favor under the contract of nineteenth of March, 1866 † In the language of article 2539 of the Civil Code, we answer: “If the buyer does not pay the price, the seller may sue for the dissolution of the sale.” 10 Rob. 416; and “Whenever a necessary cause of resolution exists, the purchaser may do voluntarily what he can be compelled to do by suit.” 6 An. 6; Chretian v. Richardson; Shields v. Lafon, 7 An. 135.

This remedy was exercised by favor of the vendors. What was the effect of the resolution of the sale, on the mortgage given to secure the price of the interest of L. A. Bnard, supposing that the mortgage extended over any other part of the property beyond what he sold?

Article 3268 of the Civil Code provides that “such as only have a, right that is suspended by a condition, and may be extinguished in certain cases (in the French text, ou resoluble clans certains cas, ou sujet arescision) can only agree to a mortgage subject to the same conditions and (or) liable to the same extinction.” The title of the vendee was never indefeasible, and the title given by her to her creditor was liable to become extinct by the happening of the resolutory condition. 8 La-83, Mortee v. Roach’s syndic ; 12 An. p. 700, Johnson v. Bloodworth.

Tiie contract between Mrs. Buard and her five children stipulated that if the notes given by her were paid in United States treasury notes it should be in the ratio' of $130 in currency for every $100 specified in the notes. The judgment against her is for the amount, specified in the notes with thirty per cent, added thereto. This is erroneous. The maker of the notes should have had reserved to her the right to pay in gold, if she pleased. There is no certainty that gold will not be worth less than thirty per cent, premium when she is compelled to pay.

It is therefore ordered that the judgment of the district court bo avoided and reversed. It is further adjudged and decreed that there be judgment in .favor of the intervenors restraining the plaintiffs from selling their undivided four-fifths interest in the property mortgaged; and that there be judgment in favor of the plaintiffs against madam Suzetto Buard for the sum of three thousand and nine hundred dollars, with interest at the rate of eight per centum per annum on nineteen hundred and fifty dollars from the first day of February, 1868, and on nineteen hundred and fifty dollars from the first day of February, 1869. till paid, and costs. And the right is reserved to Mrs. S. Buard to discharge this judgment by paying three thousand dollars iu gold, with eight per cent, per annum interest on one-half thereof from the first February, 1868, and on the other half from the first of February, 18G9,. till paid, and costs. And it is further ordered that the mortgage given by the defendant on the property described in the petition and act of mortgage be recognized and enforced against the undivided interest of L. A. Buard, being one-fifth in and to the property aforesaid, to satisfy this judgment.

It is further ordered that the plaintiffs and appellees pay the costs. of the intervention and of this appeal, and that the defendant, S. Buard, pay the other costs, incurred in the district court.

Wtx.y, J., dissented.

On Rehearing.

Wyly, J.

On the nineteenth day of March, 1866, the five heirs of L. A. Buard joined in an act conveying to their mother their respective interests or shares in a certain plantation inherited by them from their said father, and in order to secure the price represented by certaiu promissory notes in favor of the vendors respectively, the said vendee specially mortgaged all of the said property “in favor of the payees of said notes or their assigns until the full and complete payment of the same, principal and interest.” Certain notes coming to-on e of the heirs were, before maturity, pledged to the plaintiffs; and when the pledgees instituted this suit against madam Buard to recpver a personal'judgment on the notes and to enforce the mortgage, the other four heirs intervened and ask that the mortgage be only recognized and enforced on one-fifth of the property embraced in the act of mortgage, the same being the share conveyed to the said madam Buard by the heir who assigned his notes to the plaintiffs and upon which alone the mortgage sought to be enforced operates; they allege that the other four-fifths of the property was reconveyed to them in consequence of the inability of their said mother to pay for the same ; that this retrocession having the same effect as the enforcement of the dissolving condition restored the undivided four-fifths of the said property to them free of the incumbrance resulting from the mortgage ; and by this act the mortgage sought to be enforced by the plaintiffs is restricted to the share of the heir from whom they acquired the. notes.

There is no doubt that the effect of the dissolving condition is to-discharge subsequent mortgage, granted by the vendee to third parties. But in the case before us the intervenors and plaintiffs’' transferrer were the vendees and mortgagees; they were parties to. the mortgage and consented to the following clause in the mortgage. granted, by tlieir vendee: All of the said property to be and remain specially mortgaged in favor of the payees of said notes or their as-, signs, until the full and complete payment of the same, principal and interest.”

By this stipulation the notes coming to each heir was not only secured by the interest or shares which he conveyed, but was secured by a mortgage on the whole property granted by the vendee with the consent of all the five vendors.

There is no doubt that the purchaser had the right with the consent of all the vendors to mortgage all the property to secure each note given to the several vendors, and having done so the holders of the notes acquired concurrent mortgage rights on all the property. There is no doubt that several distinct sales and mortgages may be embraced in the same act; and in the act of sale and mortgage before us it was perfectly competent if the parties had so desired ior the vendee to secure the debt due each heir by a separate mortgage on the share conveyed by him; and in that case each heir could assert his rights against the delinquent vendee by a suit ,to enforce the mortgage, or by a suit to dissolve the sale, as to him might be most desirable; and the other heirs would not be affected thereby, or have any interest in the remedy resorted to.

But in the case before us the parties in interest consented by signing the act of mortgage that the vendee should hypothecate the whole property to secure each note, thereby the holders of the several notes acquired concurrent mortgage rights on the whole property.

Now, if the notes declared on were secured by mortgage on the whole property the day the mortgage was given by the vendee and accepted by the vendors, the incumbrance remains upon the property and is not affected by the retrocession to four of the heirs of the shares which they had conveyed to their mother. The mortgage rights of the plaintiffs is not affected by the act of retrocession, because neither they nor the heir from whom they acquired the notes wore parties to the act of retrocession. “Agreements legally entered into have the effect of laws on those who have formed them. They can not be revoked, unless by mutual consent of the parties, or for causes acknowledged by law. They must be performed with good faith.” C. C. 1895.

It is therefore ordered that the judgment heretofore rendered by this court be amended so as to recognize plaintiffs’ mortgage on all the property described in the act of mortgage, instead of one-fiftli thereof, and that the intervention be dismissed at the costs of the intervenors ; as thus amended, it is ordered that the said judgment remain undisturbed. i

Mr. Chief Justice Ludeling adheres to the first oninion rendered by this court herein.


author: Taliaferro, J.

text:
    No. 3253.
    John H. McKee v. S. P. Griffin et al.
    In a suit by one partner for the settlement and liquidation of tlie partnership affairs of a commercial partnership, the partner claiming the settlement stands in no better position than that of any other creditor. It must therefore be shown affirmatively that he is a creditor, and. that the other partner who is required to account is in default, before ho can resort to the seizure of property, the title to which is not in the partnership, but which is alleged to be fraudulently in the possession of a third party under a simulated title.
    In the suit of one partner against another, to compel the liquidation and settlement of a commercial partnership, under the allegation that a third person (who, it is admitted, is not a partner, and is in no manner interested in or connected with the partnership affairs), is the possessor of real estate, under a title translative of property irom the partner who is called to account, it was held that the writ of injunction could not be legally issued against such third possessor under such title, restraining him from using and enjoying bis property, pending the suit for a settlement of the partnership, because in the first place, it is not established that the partnership is indebted to the complaining partner, and therefore he has no right of action against such third possessor, and consequently is -without the right to seek the conservatory writ of injunction.
    It was held, further, that a third party, holding real estate in the State of Louisiana under a title translative of property, could not be divested of his property, collaterally, by a suit for the settlement of an ordinary commercial partnership, of which it was not alleged that he was a member, or that he was in any way connected therewith, under the allegation that such third person had acquired his title to such real estate with a knowledge that it had been purchased by his vendor with partnership funds.
    APPEAL from the Eighth District Court, parish of Orleans.

      Dibble, J. Billings & Hughes and Bx. Sumner Mansfield, for plaintiff and appellee.

      William H. Hunt, for S. P. Griffin, defendant and appellant.
    J. Hawkins (curator ad hoe) for C. C. Edey, an absentee, defendant and appellant.
   Taliaferro, J.

This action is brought to effect a settlement of the business of a commercial partnership, dissolved by the bankruptcy of two of its members, and, as incident to the settlement, to subject as part of the assets of the partnership certain real estate, the title to which is in a third party, an absentee, never in any manner concerned in or connected with the partnership. Upon the petition of plaintiff a curator ad hoe was appointed to represent the absentee. The plaintiff took a rule upon the curator ad hoe and the defendant, Griffin, to show cause why a receiver should not be appointed and an injunction issue. An exception was filed hy each of the defendants. The ground taken hy the curator ad hoe is that in the liquidation of a commercial partnership an injunction can not he legally issued to restrain a third party from using or disposing of real estate, the title to which is admitted to he in his name, and who is not alleged to he a partner or member of the partnership; that the absentee, Edey, having a recorded title translative of property to the real estate sought to ho made subsidiary to the liquidation of a partnership, that title can not be divested or annulled hy a collateral proceeding of -the kind here resorted to, and can only he attacked by a direct action.

The defendant, Griffin, excepted that the plaintiff’s petition set» forth no sufficient allegation in law to warrant the issuing of the injunction or tlie appointment of a receiver; that the affidavit is not such as the law requires,' is vague, uncertain, contradictory, and its allegations inconsistent; that the affidavit is false in charging that he ever received the rents and profits of the real estate described in the petition, since the sale of it to Edey, and that the defendant, in the purchase of said real estate, used the funds of the alleged partnership. On the trial of these exceptions they were overruled, and the rules made absolute, and from that judgment the defendants have appealed.

It appears that in 1865 the plaintiff, McKee, the defendant, Griffin, and two others, Bloomer and Graham, formed at Shreveport a commercial partnership, under the firm and style of S. P. Griffin & Co. The business of this partnership was declared to be the buying and selling of cotton, and the doing a commercial business generally. In the spring of 1866, McKee purchased the interest of Graham in the partnership. About two years afterwards, McKee and Bloomer both took the benefit of the bankrupt law, and subsequently purchased from the assignee in bankruptcy all the rights their estates had against S. P. Griffin and S. P. Griffin & Co. Bloomer sold the right he thus acquired to McKee, who, alter becoming owner of all the claims of Graham, Bloomer and himself against S. P. Griffin and S. P. Griffin &. Co., instituted this suit against S. P. Griffin, the other partner, and the absentee, Edey, as we have previously seen. The petition charges that a large amount of cotton was purchased in the States of Louisiana, Arkansas and Texas with the partnership funds; that Griffin sold this cotton and wrongfully converted the proceeds to his own use; that he purchased in his own name, with partnership funds, two fractional squares of ground in Shreveport at the price of $40,000,. and after-wards made improvements upon them with partnership funds to the amount of $35,000. The plaintiff charges that the said real estate, and the improvements made upon it, were fraudulently conveyed by Griffin to his brother-in-law, Charles C. Edey; that the conveyance of this property was made without consideration, and with the intent to defraud the other members of the firm; that Edey knew that the pur-, chase of the lots of ground in Shreveport by Griffin, and the improvements he made upon them, were all made with partnership funds, and that the conveyance to him operated a fraud upon the other partners. The petition expressly charges that Edey, the third party, is not a l>ona fide purchaser for a valuable consideration. It is contended that the other partners never consented to this transfer, and that Edey became a trustee for the partnership from the moment the property was transferred to him by Griffin. The plaintiff relies upon the case of Baca v. Ramos et al., 10 La. 420, and that of Hall v. Sprigg, 7 Martin 244 as establishing this proposition.

By the laws of Louisiana a commercial partnership can not own. immovable property. If immovable property be purchased in the name of the firm, the partners become joint owners. 3 La. 494. In the case of Baca v. Ramos et al., real estate was acquired under title to Baca and Preba, under the firm and style of John Kamos & Co. In deciding that case, Judge Martin said:

“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 liis private debts. But in case of" such seizure and sale ho must have accounted to ids x’artners for the price. * * * In-fact, the title to one undivided third was in him, but the value thereof belonged to the partnership. The distinction we have taken between the title by which the property is held, and the value thereof, is well known in the other States of tilo Union whore 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 io the other, precisely as this court in the case of Hall v. Sprigg, 7 M. 243.”

In various cases cited by counsel, the status or condition of immovable property, purchased in the name of a commercial partnership, is-recognized as that of prox>erty owned jointly by the purchasers, and the principle enunciated in these decisions establish that if immovable property" is purchased with partnership funds by one of the partners-in his own name, and without the consent of his copartners, the property itself belongs to the partner x>urchasing, but its value at the time of the purchase belongs to the partnership. No decree of a court could be rendered to vest the title of property so purchased in the partnership, for the partnership is incayiable of acquiring title.

In the aspect under which the case before us is x>resented, the title-to the property purchased by defendant having been transferred to a-third person, it is not necessary to determine whether the copartners, under the authority of the two cases relied upon, could compel,the defendant, if he still held the legal title, to make a conveyance of it in joint ownership to the members of the firm. The case of Hall v. Sprigg was different from that of Baca v. Ramos et al. In the former,, the defendant, as the agent of the plaintiff, with the plaintiff’s money entrusted to him to purchase land, bought it in his own name with the. plaintiff’s money. The court decided that the unfaithful agent should convey the land to the plaintiff, who held the equitable title. In this case the plaintiff had the capacity to hold.

None of the cases, it seems to us, authorize the conclusion that the condition of the property would be the same in the hands of a third party in possession, under a title translative of property, even if held in bad faith. And we have grave doubt as to the right of the plaintiff in this case, under our laws, in a suit for the settlement of partnership business, to seize and take out of the possession of a third party, under title, real estate and enjoin him from using or disposing of it, and by this mode of action to subject it to the liquidation of the partnership affairs. This third party is not shown to be in any'manner connected with the partnership, or in any manner connected with its affairs. The plaintiff asserts no privilege upon the property, nor does he allege the insolvency of the defendant. But it is alleged that flic third party is collusively engaged with the defendant to screen the property purchased by the defendant with partnership funds from the reach of the copartners. By our laws, creditors who are injured by fraudulent and simulated sales, have their remedy by the revocatory action to annul and set them aside. In the case of simulated sales, judgment creditors, without other recourse, are allowed at their peril to make direct seizures of property under fieri facias, disregarding the mere paper title, by which no right of property passed to the pretended vendee. Yet we apprehend that this right can scarcely bo claimed in a case like the one under consideration, the plaintiff not being a judgment creditor, and in fact not even showing that he is a creditor. He alleges that the defendant had a large amount of partnership funds in his hands, and appropriated them to his own use. Ho sues for a settlement of the partnership, and to compel the defendant, as a partner, to account to the partnership. Until a settlement is •effected, it will not be known whether the defendant is a debtor to the partnership or not. "Wo do not see that the plaintiff has greater rights than other creditors have under similar circumstances. In the •case of .the United States v. Smith, 7 An. 187, where it was alleged that property of the defendant was fraudulently covered by title in the name of his son, an injunction was taken out, on affidavit of the plaintiff that defendant had no other property, and that there was reason to fear the property would bo disposed of to the injury of the plaintiff. The injunction was dissolved on the ground that there was no authority or precedent for such a proceeding. In the case of Talamon et al. v. Ytasse, 4 Rob. 462, and in the case of Bauriere v. Fete, 9 An. 536, the same ruling prevailed.

In an ordinary suit for the settlement of a commercial partnership brought by one of the partners against his copartners, the Code of Practice furnishes conservatory remedies that may be resorted to, as contingencies arise, to secure the partnership property and assets' pending the settlement. But that real estate in possession of a third party, in no manner connected with the partnership, and under a recorded title translative of property, can be taken out of the possession of the presumptive owner, and held subject to a decision'of the litigation, and tlie party under title in the meantime restrained by injunction from using or disposing of the property, seem incompatible with our laws and the jurisprudence of the State. With these views of the facts in this case, we think the exceptions should have been sustained.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed; that the injunction be dissolved; that the appointment of a receiver be set aside and rendered of no effect, so far as he was authorized to take into his possession or under his control the property of the absentee, Edey; that the casé be remanded to the court of the first instance to be proceeded with according to law, the plaintiff and appellee paying costs of this appeal.

Mr. Jnstice Howe dissents in this case.


author: IIowe, J.

text:
    No. 2864.
    F. R. Stevenson & Co. v. Mrs. Z. E. A. Riser et al.

      A judgment that lias been rendered on a citation, addressed to and served upon a partner of the defendant, in a partnership not alleged or shown to bo commercial, is an absolutonullity for want of citation. An hypothecary action to recover real estate incumbered-by a judicial mortgage resulting from the recording of such judgment, will, therefore, tail, because the judgment being absolutely null lor want of citation, tlio accessory obligation arising therefrom falls with it.
    APPEAL from the Second Judicial District Court, parish of Jefferson.

      Parclee, J. <7b7m McKee, for plaintiffs and appellants,

      lioyersc£- Plane, for defendants and appellees.
   IIowe, J.

This is an hypothecary action to subject land of defendant Mrs. Riser to the pajment of a judgment alleged to have been obtained by the plaintiffs against George W. Genkins in the Third District Court of New Orleans. At the time the judgment was recorded in such a way as to act as a mortgage Genkins was owner of the-land. The principal defense is that the judgment against Genkins was. an absolute nullity for want of citation, and that defendants may urge, this nullity as against the hypothecary claims of plaintiffs.

We are of opinion that the citation addressed to and served on the-partner of Gonkins, in a partnership not alleged or shown to be commercial, could not authorize a judgment against Genkins; that tliejudgment was an absolute nullity; and the accessory obligation herein sought to be enforced also absolutely null. 21 An. 27.

Tbe cases cited by plaintiffs, announcing the doctrine that seizing-creditors can not attack for fraud a judgment rendered long before-. their claims originated, do not seem to be in point in opposition to-this view.

Judgment affirmed.

Rehearing refused.


text:
    No. 3261.
    Samuel Depass v. Esther Winter.
    'This action was commenced by tlio husband for a separation from bed and board, on account of cruel treatment. The wife pleaded the general issue, and demanded in reconvention an‘absolute decree pf divorce, oil the ground of the adultery of the husband. On the trial the plaintiff failed to establish the allegation of his petition for separation while the defendant clearly made out a case of adultery against tlie plaintiff, her husband.
    Held — That the plaintiff’s petition must be dismissed, and that the prayer of the wife in reconvenlion must be granted, that a judgment of divorce a vinculo matrimonii must bo granted in her favor and against her husband.
    APPEAL from the Fifth District Court, parish of Orleans.

      Leaumont, J. J. J. H. Hlaneliard, for plaintiff and apqiellee.

      Hudson <& Hearn, for defendant and appellant.
   IIowe, J.

Action for separation from bed and board on account of cruel treatment. Defense, a general denial, and a demand in reconvention fqr an absolute divorce ou the .ground of the adultery of plaintiff. Judgment for plaintiff, and appeal by defendant.

It is not necessary to rehearse at length the testimony. Much of it might make the unskillful laugh, but there is more to make the judicious grieve. The parties are upwards of sixty years of age and have been married nearly thirty years. Much of the testimony adduced by plaintiff refers to a period of from twelve to fifteen years prior-to the time when he left the matrimonial domicile and commenced this action on the gro.und of “ cruel treatment.” One of these witnesses who knows nothing of what occurred after about 1853-54, some sixteen j>ears before the suit was filed, gives Ms views at great length, and declares with oracular gravity that the wife made the life of the husband “insupportable,” because she was in the habit of getting up very early and making a noise by scrubbing the banquet and performing other acts of domestic industry. The other witnesses on whom plaintiff relies, were neighbors for a few days only before the action was commenced. They prove that there was a quarrel between the parties just before the husband left the house; and the testimony for the defense shows a very natural reason for it. It shows clearly that the plaintiff had been living in the most shameless adultery with a kept mistress for several years, and had been lavishing upon her the ■earnings of Ms trade which should have gone into the community; and that the defendant only learned this fact a few days before this suit was brought. The plaintiff does not clearly establish a cause of action; while the defendant proves the foundation of her reconven - tional demand beyond all doubt.

The plaintiff pleads to the charge of adultery the prescription of ione year; but its application is not perceived.

He also urges that the wife has condoned the offense, but it must be remembered that condonation of this kind, on the part of a wife, is not for «obvious reasons to be established without grave and conclusive proof.

In this case there is no proof. Indeed, as already stated, it appears quite clearly that the defendant first heard of the offense a few days before this action was begun, and the inference is fair that it was this revelation of her husband’s infidelity which provoked the only important quarrel disclosed by the record.

It is therefore ordered that the judgment appealed from be reversed, that there be judgment in favor of the defendant Esther Winter and against the plaintiff Samuel Depass dismissing his petition and sustaining her reconventional demand; that the marriage heretofore contracted between the parties and the community of property be dissolved ; that the inventory taken herein be homologated and made the .'basis of a partition of the community property; and that for the purpose of making a partition in accordance with such basis the cause be remanded to the lower court; the plaintiff to pay costs.


author: Wyly, J.

text:
    No. 2216.
    Robert H. Bayly v. Thomas McKnight and R. K. Walker.

      A defendant who admits that ho owes a debt which he has failed to pay, can not be relieved rom the payment of the costs which the plaintiff has incurred in prosecuting his demand. In such a case, where no other defense is urged but that of the liability for costs, tho appellant will be condemned to pay damages tor frivolous appeal.
    APPEAL from the Seventh -District Court, parish of Orleans.

      Col-lens, J. Boselms é Philips, for plaintiff and appellee.

      Bichará ■Shackleford, for defendants and appellants.
   Wyly, J.

Tiie defendants have appealed from a judgment on a promissory note, against them personally, and foreclosing the mortgage securing- the same, on certain property described in the act of mortgage.

The defense is that the protest was not necessary, and the defendants should not be held liable therefor; also, that the defendants should not be taxed with the cost of the copy of the act of mortgage.

The note, made payable at the Canal Bank, was drawn to the order of the maker, McELniglit, and endorsed in blank. It was also indorsed by the defendant, R. EL. Walker. It was placed for collection in the Citizens’ Bank, and duly protested for non-payment after presentation at the place of payment.

The defendants having failed to provide for the payment of the mortgage note, to which they have no substantial defense, with bad grace ask to be relieved from the costs which the plaintiff has incurred by reason of their fault.

We think the plaintiff should have the damages which he asks for frivolous appeal.

It is therefore ordered that tne judgment be affirmed with costs. It . as further ordered that the plaintiff recover of the defendants in solido ten per cent, damages on the amount of the judgment appealed from.


author: WxxY, J.

text:
    No. 3148.
    M. E. Baird et als. v. A. Lemee, Attorney of the Absent Heirs of Mahala Sprowl et al.
    The community resulting from marriage is not a partnership. A judgment creditor of the surviving spouso may, therefore, seize and sell an asset of the community in satisfaction of his demand, and the heirs of the deceased partner can not set up their residuary rights by "way of injunction, and require the rules of partnership settlement of debts to be applied to the settlement of the debts of the community.
    APPEAL from the Ninth Judicial Distript Court, parish of Natchitoches.

      Orsborn, J. R. J. Bowman, for plaintiffs and appellees.

      Chaplin, Morse Chaplin, for defendants and appellants.
   WxxY, J.

In the year 1859, during the lifetime of Mary W. Lawson, his wife, Daniel Brown, the father of plaintiffs, obtained in the suit entitled “A. V. Roberts, Administrator of the Succession of Samuel and Susan Quarles v. W. W. Brown et al.,” No. 5050, a final judgment against the plaintiff in that suit for the sum.of eighteen thousand dollars, besides interest, affirmed by the Supreme Court in 1860. 15 An. 696. On the thirtieth day of March, 1859, Daniel Brown was appointed and qualified as executor of the last will and testament of Maliala Sprowl, deceased. On the fifth day of January, 1860, the executor, D. Brown, sold at public sale all the property belonging to-said succession. Mary Lawson, the wife of Daniel Brown, died in the month of April, 1860, and on the fifth day of February, 1866, Daniel Brown filed his final account of the administration of said succession of Mahala Sprowl. This account of administration (which contains evidence of the receipt by the executor, in cash, prior to the death of Mary Lawson, from sale of cotton, movables, etc.,) was opposed in the suit entitled “A. Lemee, Attorney of Absent Heirs, v. Daniel Brown, Executor,” No. 6719, and a judgment was rendered against" said executor for the sum of seventeen thousand seven hundred and ninety-three dollars, with interest. 21 An. 544.

On the twelfth October, 1869, a writ of fieri facias was issued from’ the judgment in No. 6719 and all the right, title and interest of Daniel Brown in and to the judgment rendered in his favor in suit No. 5050,. was seized on the fifteenth October, 1869, and advertised for sale on the fourth December, 1869. The plaintiffs in this suit obtained a writ of injunction to arrest the sale of the judgment under seizure. In. their petition they allege, in substance, that the defendants in this-suit are the creditors of. Daniel Brown, individually; that the judgment in suit No. 5050, now under seizure, is a community asset, and is not liable to seizure for the individual debt of the surviving partner in community. They aver that an action of partition is pending, between themselves and their father, Daniel Brown; that he is largely indebted to them on account of their interest in the community formerly existing between him and his wife, Mary Lawson; and they also claim damages for the wrongful seizure of said judgment

The defendants deny the indebtedness of Brown to the plaintiffs and aver that the judgment seized is liable for the debt due them by said Brown, which they allege is a community debt. They also pray for a dissolution of the injunction with damages and plead the prescription of one and four years to plaintiffs right of action.

The court gave judgment in favor of the plaintiffs, perpetuating the-injunction, and the defendants have appealed.

The bill of exceptions taken by the plaintiffs to the ruling of the court in admitting evidence to prove that the judgment of the defendants against Daniel Brown was for a community debt, was not well taken. It was not received for the purpose of enlarging or diminishing the judgment, but to ascertain a fact raised in the pleadings, to wit: whether the debt on which the said judgment was founded was a community debt or not.

It is shown by the evidence that the debt on which the defendants’' judgment is based was a community debt, and the judgment seized thereunder is a community asset.

The community of property created by marriage is not a partnership; it is the effect of a contract governed by rules prescribed for that purpose in this code.” C. C. 2778.

It is not subject to tlio rule of partnership which prevents the seizure of a particular asset belonging to it, and as to the creditors of the community the heirs of the deceased partner in community can not set up their residuary rights and require the rules of partnership settlement to bo applied to the settlement of the debts of the community. If the community “be dissolved by the death of the wife, the survivor is generally alone applied to for the satisfaction of the community debts, and the wife or her representatives, although their distinct interest to the community attaches at the dissolution of the marriage, subject to their right to renounce and be exonerated from the payment of the community debts, have nothing to claim out of the acquets and gains until such ■ debts are paid and liquidated.”’ Lawson v. Ripley, 17 La. 246; 12 An. 222 ; 2 An. 30; 1 R. 378; 7 R. 398.

Our conclusion is that the judgment of the court perpetuating the injunction is erroneous.

It is therefore ordered that the judgment appealed from be avoided and annulled; and it is now ordered that the injunction be dissolved and there be judgment for the defendants, the plaintiffs paying costs of both courts.

Rehearing refused.


author: I-Iowe, J.

text:
    No. 2242.
    R. H. Dixey v. Patrick Irwin—Citizens’ Bank, Warrantor.
    A party who removed from Hew Orleans lo a foreign country and designated a person who resided here as liis agent, and.tlie agent died soon after he left, and ho failed to designate another agent, and suit is brought against him to enforce a mortgage which he gave "before leaving, by executory process, such party can not, on returning to the State after the property has been sold, and in a petitory action to recover it back from tliepurchaser at sheriff’s sale, he hoard to urgo that the sale is null because it was made contradictorily with a curator ad hoc appointed by the court to represent him as an absentee, when, in law, he was nob an absentee, but only temporarily absent. 19 An. 351; 21 An. 208.
    The designation of a party appointed by the court to represent an absentee in executory proceedings as curator ad hoc, will not render void the proceedings, if it appear front the records of the court, or otherwise, that the party appointed is an* attorney at law. 21 An. 692.
    APPEAL from tlie Seventh. District Court, parish of Orleans.

      Oollens, J. JD. 0. Lcibcitt, for plaintiff and appellant.

      T. Gilmore, for defendant and appellee. A. Pitot, for intervenor
   I-Iowe, J.

This case is similar in many respects to that of same plaintiff against Mandell, lately decided in favor of defendants therein.

Tlie polition is framed apparently so as to include a suit for nullity of a judicial sale and a petitory action; but the plaintiff, in his brief, declares it is not a suit of nullity for reasons which he states, but is a petitory action asserting a superior title to tlie property in dispute to that of defendant. The plaintiff claims tlie property on the ground that the executory proceedings under which the Citizens’ Bank undertook to enforce its mortgage debt against tlie plaintiff and caused to be sold the property, which was purchased by defendant, Irwin, were absolutely null and void, for want of proper citation, and that tlie ■court was without jurisdiction.

In this view of the case, as a petitory action, it is not necessary to examine all the points made by plaintiff, for some of them, though they might exhibit irregularities which could be considered in an action instituted with proper parties to annul a judgment or a judicial sale, can not be examined collaterally by a petitory action against a purchaser, certainly a purchaser like the defendant, who seems to have been in perfect good faith and to have paid a second price which has g-one to discharge plaintiff’s debts.

First — lb is urged by plaintiff, appellant, that he was not an absentee in January, 1866, in such a sense as to authorize the appointment of ■an attorney or curator ad hoe to represent him in the executory proceedings.

. The evidence shows that he sold his home in this city and left for Europe in 1864; that a few weeks after an agent he had in New Orleans died ; that he remained abroad, year after year, unrepresented in Louisiana; and that in January, 1866, when the Citizens’ Bank ■desired to collect its debt, it was necessary and proper to appoint á representative for him. 19 An. 351; 21 An. .208.

Second — It is objected that a curator ad hoe, so-called, was appointed, and not an attorney. If by attorney is meant an advocate or lawyer, a member of the bar, it appears by the record that such a representative was appointed. 21 An. 693.

Third — It is objected that notice equivalent to citation was not served on the plaintiff, Dixey, through the attorney appointed to represent liim. The record, and especially the return of the sheriff, shows that this point is made in error. The demand — or notice of order of seizure and sale — -was regularly served. This was the important act, which has been decided to be so far assimilated to citation as to interrupt prescription. 20 An. 192, and cases'there cited.

Fourth — The plaintiff contends that the property was never seized by the sheriff in the executory proceedings. The record shows a seizure according to the law applicable to the parish of Orleans. If there were irregularities they were relative merely.

It is urged that at the time of seizure the property was occupied by the military forces of the United States, and, therefore, no seizure could be made. Granting they did occupy at one time an office in one corner of the extensive premises, they permitted the seizure when first made; they did not and do not complain, and they gave up whatever possession they had some three months before the sale.

Fifth — It is contended that the notice of seizure of the property which was served on the attorney ad hoe was addressed to the plaintiff instead of to the attorney, and was, therefore, fatally defective. Granting that,a defect in this respect would constitute the salean absolute nullity, which is to say the least, doubtful, there was no defect in this case. The service was regular. 2 An. 158.

On the whole we find no error in the decision of the lower judge, and

It is therefore ordered that the judgment appealed from be affirmed, with costs.

Behearing refused.


author: Ludeling, C. J.

text:
    No. 2259.
    James Martin v. W. W. Washburn and J. J. Haggerty.
    The obligation of a lessee to tbe lessor to keep in repair tbe premises leased, does not authorize tbe co-tenant to sue bim for damages occasioned by defects inherent in tbe •cistern on tbe leased premises.
    APPEAL from the Seventh District Court, parish of Orleans.

      Col-lens, J. Walter E. Bogers, for plaintiff and appellee.

      Etidd & Grover, for Haggerty, appellee.

      Bace, Foster & E. T. IferrieJc, for defendant and appellant.
   Ludeling, C. J.

The plaintiff sued the defendants for damages occasioned by the bursting of a cistern filled with water, which flooded his shoe store.

Martin and Washburn were lessees of Haggerty; Martin had the first floor and Washburn the upper stories of the same building.

Opposite the. third story was a cistern which rested on a brick wall, and from this cistern both tenants used w|iter. Haggerty alleges that Washburn obligated himself to keep the property leased in repair, and that he is bound in warranty to him, should he be held responsible for the damages, and, further, he alleges that the cistern belonged to Washburn.

There was judgment against W. W. Washburn for $G50 and costs of suit. Washburn alone has appealed.

The evidence does not establish that Washburn owned the cistern, nor does tlie obligation of Washburn to the lessor to keep in repair the premises leased, authorize a co-tenant to sue him for damages occasioned by defects inherent in the cistern on the leased premises. But, aside from this, we are of opinion that the plaintiff has failed to-prove the amount of damages occasioned him by the bursting of the cistern. The evidence is conjectural and unsatisfactory.

It is therefore ordered and adjudged that the verdict of the jury be set aside; that the judgment of the district court be annulled, and that there be judgment in favor of defendant, Washburn, rejecting the plaintiff’s demand, with costs of both courts.


author: Howell, J. Howell, J. Wylt, J.,

text:
    No. 3141.
    Carroll, Hoy & Co. v. Mrs. M. A. Davidson.
    An executor or administrator lias no power to bind tlie estate by giving notes, signed officially, for debts contracted during tlie time of tbe administration. If, therefore, the administratrix give her notes in favor of a merchant for supplies furnished to carry on the plantation after the succession is opened, she may bo held personally liable thereon, but the estate she represents is not bound, because she has not the authority by virtue of her office of administratrix to contract such debts on behalf of the estate she represents. 21 An. 286.
    APPEAL from the Ninth Judicial District Court, parish of Rapides.

      Orsborn, J. li. A. Hunter, for plaintiffs and appellees.

      Bycm & White, for defendant and appellant.
   Howell, J.

Plaintiffs sue the defendant individual^ on two notes signed by her as administratrix of the estate of N. Davidson. The defense is that the plaintiffs were the factors of her husband, Neal Davidson, before the late war; that the whole of the debt represented by said notes was in the form of an account against said Davidson for supplies, etc., furnished him during his life; that after she qualified as administratrix the amount was presented to her as a claim against the estate of the deceased, and at the request of plaintiffs she acknowledged it to be such by the notes sued on, and that she can not be made responsible for the debts of her deceased husband.

■ It is shown that Neal Davidson died in 1863; that the accounts made out in the name of the estate of Neal Davidson, and for which the notes were given, ran from August 12, 1865, to July 10, 1866, and from July 30, 1866, to July 1, 1867, and were for supplies furnished the plantation which belonged to the succession of the deceased, but cultivated under the management of the defendant, through her oldest son, of ago, there being some minor children; that on the eleventh May, 1866, the defendant applied for the appointment as administratrix, and on the same day, without any publication, the order appointing her such, and directing an inventory to be made, was granted by the clerk of the court, and on the twenty-eighth of said month she furnished a bond; that on the sixteenth of September, 1869, she fileij an account or tableau of debts, including one in her own favor of over §6000, and oue in favor of plaiutiffs of $2202, but not the two notes sued on; and that on the second of February, 1870, the whole property of the succession was sold and purchased hy her; that in the correspondence of plaintiffs they advised the defendant’s son “ to have the estate placed under administration, so that it could be legally used in raising money to carry it through the making of a crop,” and requested the notes to be signed by defendant as administratrix.

Tile question arises, do these facts show that plaintiffs gave credit to and dealt with the succession of Neal Davidson in regard to these notes, and estop them from holding the administratrix individually liable ? We think not. Plaintiffs evidently did not intend a liberality, and the fact that they thought that the administration could be legally used to raise money for making a crop, did not change the law of successions anil the powers and responsibilities of administrators. It is no longer an open question that executors or other administrators can not, in any transaction in which they pretend to act as such, create any liability on the estates represented by them. They have power to acknowledge existing debts or liabilities, but not to create them. If it should be necessary to conduct a plantation for tlie benefit of a succession during the time necessary for settling it up, special authority may be obtained from the court to do so, and thus bind the estate for current expenses. But to permit an administrator indefinitely to carry-on the planting business and annually increase the indebtedness of the estate, would give him the power to ruin the estate irretrievably.

The argument that plaintiffs gave credit to the succession, and must he held to a recourse upon the succession, is more specious than solid. This doctrine applies when the contracting parties are actually or apparently capable of contracting. But a succession can not make a contract. It must he represented, and its representative has only the powers specially conferred and those necessarily incident to the carrying out or exercise of such as are conferred. In all cases where administrators have given notes, the creditors were affected with knowledge as much as in this case, and acted voluntarily in taking the notes, and yet the successions were relieved from liability, and the administrators were held responsible, except in a few where the notes were given for debts existing at the date of opening the successions, and the notes were considered simply as acknowledgments of the debts. Such were the cases of Gillett v. Rashal, 9 R. 276, and Bank of Louisiana v. Dejean, 12 R. 16, cited by counsel for defendant. In the other four cases quoted by them, the parties relieved were agents, and acted as such to the knowledge of the creditors giving the credit.

In the case of Livingston v. Gaussen, 21 An. 286, we examined the cases in which this question was raised, and recognized the distinction between those where the debt was created by the deceased and those where it originated pending the administration. In this case the defense seems to have been prepared with reference to the doctrine announced in that, but the evidence does not sustain the defense. It (is not proven, as alleged, that the supplies were furnished in the lifetime of the husband, while it is shown that the wife is now the owner of all the property left by the husband, under a sale provoked by herself, notwithstanding the irregularity of her appointment. Our conclusion, is that this case is in the category of those where representatives of successions have been held responsible personally on notes given in their representative capacity, and it is therefore unnecessary to pass on the bills of exception taken by the plaintiffs in the court below.

It.is ordered that the judgment appealed from be reversed, and that plaintiffs recover of defendant, Martha A. Davidson, the sum of $4500, with eight per cent, interest from sixteenth December, 1866, and the further sum of $3282 91, with like interest from first January, 1868,, and costs in both courts. .

On Rehearing.

Howell, J.

On a rehearing of this case, we deem it better to present the main question in the following form: Do the facts that the. accounts were opened and kept in the name of the succession of Neal Davidson, and the notes given in settlement thereof, signed by the defendant as administratrix, preclude plaintiffs from holding the. defendant individually liable?

As before said, we think the jurisprudence of this State maintains-the negative. See 5 N. S. 530; 8 N. S. 451; 2 La. 188; 1 R. 119; 9 R. 276; 12 R. 16; 8 An. 432 : 9 An. 130; 21 An. 286; 22 An. 293, 371.

When the account was opened, the defendant had not been appointed (nor any one else) to administer, and hence had no authority to represent or bind the succession, and her subsequent appointment, even if. it liad been regular, could not make the debt one against the succession, and the error of plaintiffs as to her capacity or authority had no such effect. The mistake of defendant’s counsel is in supposing that credit could, under the circumstances, have been given to the succession. The account and the notes, are only evidence in different forms, of the extent of an obligation, and if the defendant could not create the obligation on the part ot the succession, her consent that the account should be made in the name of the succession and to give the notes as administratrix, could have no such effect, and having so dealt with plaintiffs without legal authority, she rendered herself personally liable for the supplies furnished by them and received and used by her.

It is therefore ordered that our judgment remain undisturbed.

Mr. Justice Wyly dissents, for reasons to be filed.

Wylt, J.,

dissenting. The important question in this case is, to whom was credit given by the plaintiffs? If it was given to the estate of Neal Davidson, the debt represented by the notes is not the individual debt of the defendant, Mrs. M. A. Davidson.

An acknowledgment in the fonn of a note given by the legal representative of a succession for a succession debt, does not bind the fiduciary individually. 9 E. 27G; 12 E. 1G.

In the absence of proof to the contrary, the presumption is that credit was given to the fiduciary individually, and the words administrator or executor added to the note evidencing the debt will be regarded as mere surplusage.

When I read the letters of Carroll, Hoy & Co. in the record, which were addressed to the son of Mrs. Davidson, who was managing for his mother the plantation belonging to the estate for which the advances were made, I have no doubt as to whom credit was given. It was unquestionably given to the estate of Neal Davidson. Whether wisely or not, is not the question.

On the sixth of April, 38G6, the plaintiffs addressed the son of Mrs. Davidson the following letter:

“Dear Sir — We are in receipt of your favors of twenty-sixth and thirtieth ultimo, and have sent you the supplies requested — cost to debit of estate of Neal Davidson, $7G9 10. We would advise you to apply to your uncle, Colonel Hunter, to have the estate placed under administratorship, so that it could be legally used in raising money to carry it through the making of a crop. We are not advancing to any one, but are disposed to aid you as far as we can; and if you do not succeed in raising the money to pay the labor wages from the source you expect to, we will endeavor to raise it for you on an administration note. Yours, truly, CAEEOLL, HOY & CO."

On the twenty-third July, 1867, the plaintiffs also wrote to the son of Mrs. Davidson, managing the plantation of the estate, the following letter:

“Dear Sir — We enclose statement of the estate of Neal Davidson’s account, made up to the first instaut, showing balance due us of $3062 04, which we trust may be found correct. To cover this balance, with commissions and interest, we enclose a note, at six months irom the first instant, for $3282 91, which please request your mother to sign as administratrix, and return to us. Wo hope your crop may escape the dreaded caterpillar. Yours, truly,

CARROLL, IIOY & CO., in liquidation.”

In another letter to the same partj'-, I also find this clause:

“We enclose also note filled up to close the old account, which please get your mother to sign as administratrix of the estate of Neal Davidson, and return to us at your early convenience. We handed you the account when you were here.”

It is shown that the notes sued on evidence the amount due on two 'accounts against the estate of Neal Davidson. They represented the debt stated in those accounts. Now, the reason of the rule that an agent creating a debt without the authority of his principal, binds himself, is this: The agent has the means of knowing the extent of his authority, which the party with whom he contracts is not presumed to have; and if a party inducing another to contract with him as agent, without having adequate authority to bind his principal, is to escape liability, it will then be iu his power to perpetrate a fraud; and uncertainty as to the extent of the powers of fiduciaries would greatly embarrass commerce, if the latter were not held responsible on contracts executed without authority from their principals.

But if a person contract with au agent knowing the full extent of the powers of the latter, and also that the latter does not intend to bind himself, but only his principal, the rule I have stated will not apply to such agent in case it turn out that his powers were not sufficient to bind his principal, because credit alone was given to the principal by a party contracting with full knowledge of the extent of the powers of the agent. No fraud could be perpetrated in such a case, and there is no reason for the application of the rule. In contracting with a public officer, credit is presumed ,to be given to the government which he represents, and the parties contracting with him are presumed to know the extent of his powers to bind his principal. Hence the rule stated has no application to such a case, there being no doubt as to whom credit was intended to be given, and no presumed want of knowledge as to the extent of the powers of the officer contracted with. In such a case, no fraud could be perpetrated.

Now, in the case before us there is no doubt that credit was intended ■to be given, and actually was given, to the estate of Neal Davidson, and the notes sued on were signed by the defendant as administratrix •of the estate of Neal Davidson, to cover a debt in the account of Carroll, Hoy & Co. against said estate, at the instance and request and under the - advice of the plaintiffs. The notes, then, merely evidence the debt. Whether it can be enlorced or not, is immaterial. One contracting with a minor, is his creditor for whatever the latter may owe him, regardless of his ability to enforce the collection of the same. In this case no fraud could have been practiced, because credit was given to the estate, and not to the administratrix, and the powers of the latter are fixed in the law, which all persons are presumed to know. Hence there is no reason for the rule, and I do not think it applies to this case. Where the reason of a law ceases, the law itself should •cease.

I therefore dissent in this case.


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    No. 2921.
    State of Louisiana v. Benjamin Forrest
    In a criminal caso tlie accused is entitled to an appeal from tlie verdict of the jury and tha judgment of tho court thereon, if the offense charged is of sufficient magnitude to give the appellate court jurisdiction, without reserving bills of exceptions during the progress of the trial, or making a motion in arrest of judgment or making a formal assignment of errors apparent on the face of the record. 13 An. 486, 489.
    Except for the crimes of murder, arson, robbery, forgery and counterfeiting, all prosecutions must be commenced by tlie finding of the indictment or by filing the information within one year next after the offense shall liavo been committed. Revised Statutes of 1870, § 986. Therefore if the accused has been tried and convicted of the crime of liorso stealing, and has taken an appeal therefrom, the verdict will be set aside and the judgmont of the court below reversed, if the record shows that the information was not filed until more than one year had elapsed after the offense was committed.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge.

      J?oseyi J. M. A. JSstevcm, District Attorney, for the State.
    •J. T. Howell, for defendant and appellant.
   Ludeling, C. J.

The information, filed in this case on the eighth •of November, 1869, charged the defendant with having stolen a horse on or about the first day of January, 1863. He was convicted and ■sentenced, and he has appealed. There was no motion to quash the information, no bill of exceptions taken during the progress of the trial, no motion in arrest of judgment, nor formal assignment of errors on the face of the record.

But upon the authority of the cases of State v. Henderson and State v. Conner, 13 An. 486 and 489, which favor the liberty of the citizen, we feel it to be our duty to entertain the appeal.

It is not charged that the prisoner had fled from justice, or that the ■crime was not discovered or denounced until within one year before the information was filed. Except under these circumstances, the law prescribes that “no person shall be prosecuted, tried or punished for any offense, willful murder, arson, robbery, forgery and counterfeiting excepted, unless tlie indictment or presentment for the same be found or exhibited within one 3rear next after the offense shall be done or committed,” etc. Revised Statutes of 1870, p. 195, § 980.

The conviction was on an information which is clearly insufficient,, as more than one year had elapsed between the commission of the offense and the prosecution.

It is therefore ordered that the verdict of the jury be sot aside, and. that the judgment of the district court be arrested.


author: Ludbeing, C. J.

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    No. 2232.
    John A. Stevenson v. John G. Prather et als.
    Tlie sale "by an absentee of a part interest in a steamboat, to a resident of the State, will not defeat tlie right of attachment which the creditor had agaimst the boat for a debt which the absentee had contracted before the sale; the right of the creditor to the writ of attachment against the boat being in no wise impaired by a sale of a part thereof to a resident of the State, who was afterward taken into the firm as a commercial partner.
    APPEAL from the Fourth District Court, parish of Orleans.

      The'ard, J. Given Campbell, for plaintiff and appellee.

      Randolph, Singleton- (& Browne, for defendants and appellants.
   Ludbeing, C. J.

This suit'was commenced by attaching the interests or shares of three of the owners of the steamboat Bart Able, on a debt created by them, before W. C. Harrison, the other joint owner of' the boat, had acquired an interest in the boat.

W. C. Harrison moved to dissolve the attachment, on the ground that the owners were commercial partners, and he resided in this State. There was judgment maintaining the attachment, and the-defendants appealed.

The defendants cite the cases of Converse. Kennett & Co. v. Steamer Lucy Robinson, 15 An. 434; 2 An. 962; 5 An. 262: 13 An. 290, and 10 An. 726, in support of tlie position assumed by them in asking to have-the attachment dissolved. If the debt sued upon had been contracted by-the partnership, of which W. C. Harrison formed a member, these-authorities would be in point. But the evidence shows that the debt was contracted by John G. Prather, W. G. Thorwogoii and J. W. Terrill, before Harrison became a part owner of the steamboat, or connected with the partnership engaged in running the boat.

In the case of Owen v. Davis, 15 An. 22, this court recognized tlie right of the creditors of the absent joint owners of a steamboat to-attach their shares, and to have a privilege resulting from the attachment, entitling them to be paid by preference over the ordinary creditors of the commercial partnership engaged in running the boat.

The law authorizes the property of an absent debtor to bo attached in this State. It would be singular if by transferring an undivided interest in the property, the debtor could deprive tlie creditor of this right against his remaining interest.

It is therefore ordered that the judgment of the lower court be-affirmed, with costs of appeal.


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    No. 3229.
    E. B. Pendleton v. Eaton & Barstow and Sheriff.
    Jin act of sale of personal property, consisting of goods, wares and merchandise in a store,, in "block, without fixing a price or delivery, is null ns against a seizing creditor, and a third party, who claims to have purchased such goods beforo the seizure, who resorts to-the equitable remedy of injunction to stay the sale thereof on the ground of ownership in himself under his purchase, will be condemned to pay the highest rate of exemplary damages for his abuse of the equitable remedies which are given by the law to enable parties to protect themselves against unjust attacks.
    APPEAL from the Ninth Judicial District Court, parish of Rapides.

      Orsborn, J. B. A. Hunter and William A. Seay, for plaintiff and appellee.

      H. S. Iiosee, for defendants and appellants.
   Ludeling, C. J.

The plaintiff, claiming to be the owner of certain personal property sized under an execution issued in the suit of Eaton & Barstow v. John Frazer, enjoined the sale thereof.

Tlie exception to the jurisdiction of the court, ratione materias, was-properly overru'ed; the property seized exceeds in value five hundred dollars.

On the trial the plaintiff offered in evidence an act of sale passed before a notary public a few days before the seizure, but recorded only after the seizure, • to the reception whereof the defendant objected on the ground that the same was not recorded until after the seizure, and that, the petition for injunction does not allege any such act existed. The judge a quo received the evidence, and wo think properly. The objection that the act was not recorded goes to the effect rather than to tlie admissibility of the evidence. The objection that the plaintiff did not set forth how he became the owner, lias no force.

The defendant took another hill of exceptions to the ruling- of the district judge excluding- evidence to show that, several days after the transfer to Pendleton, the plaintiff in injunction, the debtor, Fraser,, had settled with H. S. Losee for one of the accounts which was included pi the sale to Pendleton, by having the amount thereof credited on a. debt due by himself, on the ground that Pendleton was not a party to-that act, that any one had a right to pay the debt of another, and that the fact was irrelevant. We think the fact should have been permitted to he proved. Fraud and simulation may he proved by any means in the power of the party alleging either. And this act of receipting an account alleged to have been sold to another, in consideration of receiving a credit on a debt due by himself, showed how-one of the parties to the simulation regarded it, and it further explained the nature of Fraser’s possession.

An examination of the evidence has convinced us that the plaintiff has failed to establish any right to the property seized. The only evidence offered by him to prove his title is a written act passed before a notary public a few days before the seizure, and not recorded until after the seizure, and his own testimony that “for his own convenience he left Fraser as his agent in charge of the business during his absence. He visited the store whenever he came to town, and Fraser conducted the business as his agent.”

The evidence shows that a sale of all the goods and accounts, en globo, was made by Fraser, who remained in possession and carried on the business without any perceptible change. The sign over the door, ■“■J. Fraser,” remained the same after as before the sale, and no delivery of the property seems ever to have been made to Pendleton, and no price is proved to have been paid.

“ It is the duty of the court to mulct in exemplary damages those who wantonly abuse the equitable remedy of injunction.” 11 La. 486 ; 2 An. 360; 5 An. 155, '

It is therefore ordered that the judgment1 of the district court be .annulled, and that the defendants, Eaton & Barstow, recover from, the plaintiff, Eugene B. Pendleton, and his surety, Moses Maye», in solido, twenty per centum on the amount of the judgment enjoined, as damages, and costs of both courts.

Rehearing refused.


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    No. 2296.
    James Meagher v. A. B. Reading.
    A promise to sell a lot of cotton is void as against an innocent third purchaser, to whom it' was subsequently sold and delivered, if the price had not been paid and the cotton delivered before the second sale and delivery.
    APPEAL from the Fourth District Court, parish of Orleans.

      Théarcl, J. Hays & New and O. Eoselius, for plaintiff and appellee.

      Samuel E. Wallcer, for defendant and appellant.
   Wyly, J.

The defendant has appealed from a judgment condemning Mm to deliver to the plaintiff one hundred and twenty-four bales of cotton, sequestered as the property of the latter.

The ownership of the property claimed by the plaintiff is not satisfactorily established by the evidence.

That the plaintiff made an agreement with A. P. Bush, of Hines •county, Mississippi, for the purchase of the cotton in 1863, there is no doubt, and that this contract was modified by a verbal agreement between the same parties in 1865, there is no doubt; but the evidence fails to satisfy us that the promise to sell was ever consummated by the payment of the price and by delivery of the thing.

It is true Bush testifies that he made the delivery, but this contradicts his sworn statement in the suit of Bush v. Birdsong, in the County Court of Warren county, Mississippi, where this identical property was in contestation, and he recovered it in May, 1866, upon his affidavit that he was the owner thereof, a copy of the said proceedings being in «evidence. The delivery is also contradicted by his sworn statements and by other proof in the suit of James Meagher v. A. P. Bush et als., in the Special Court of Equity, at Jackson, Mississippi, in July, 1865, in which the validity of the said purchase was involved, a copy oí said proceedings also being in evidence.

There is no doubt that the defendant obtained the cotton from Bush under the contract of sale made by the latter to one Mahone, in 1865, from whom the defendant acquired title. This cotton having been seized and taken from the defendant by process of court in Warren county, Mississippi, and subsequently released by the County Court of said county to the said Bush, was by the latter redelivered to the defendant, and by him shipped to this city.

We think the plaintiff has failed to make out his case.

It is therefore ordered that the judgment appealed from be avoided and annulled, and it is ordered that there be judgment for the defendant, plaintiff paying all costs.

Rehearing refused.


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    No. 2282.
    Carondelet Canal Navigation Company v. Widow De St. Romes.
    Tlio defendant can not bo permitted to question tbo validity of the claim on which a judgment has been rendered in a suit to revive it, the object of revival being only to interrupt the current of prescription. Revised statutes of 1870, section 2813.
    APPEAL from the Sixth District Court, parish of Orleans.

      Cooley, J. C. Dnfour and S. D. Ogclen, for plaintiff and appellee.

      Charvet & Dupla» tier, for defendant and appellant.
   Ludeling, C. J.

This is an action to revive a judgment upder the, act of 1853.

The defendant avers that she was not legally cited, and that she never, signed, nor authorized any one to sign ior her, the obligation sued upon.

The record shows that she was legally cited. It is therefore unnecessary to decide whether, in an action of this kind, the irregularity of the original proceedings on account of a want of citation, can be-inquired into. The second grounds should have been urged and established beiore judgment.

The object >of this proceeding is merely to keep in force the judgment rendered in 1859 by interrupting prescription. Acts of 1853, Ray’s Revised Statutes, section 2813. The verity of the obligation sued on is established by the original judgment — it is res judicata.

' It is therefore ordered that the judgment of the district court be affirmed, with costs of appeal.

Mr. Associate Justice Howell recused.


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    No. 2226.
    A. N. Denouvion, Tutrix, v. Hodgson & Lytle et al.
    An agreement by •which the leased property has beon taken back by the lessor and relet to another party for a portion of the timo of the first lease, will discharge the surety of the first lessee, unless it be shown that he consented to the change. 5 It. 213.
    APPEAL from the Sixth District Court, parish of Orleans.

      Cooley, J. Cooley & Phillips, for plaintiff and appellee.

      A. Saucier, for defendants and appellants.
   Taliaferro, J.

The plaintiff, by her agent, leased to Hodgson & Lytle the Delta Warehouse, with the lots around it, and the appurtenances, etc., for the term, of one year, commencing on the first of June, 18C8, and to end on the thirty-first of May, 1869, for the aggregate sum of $6800, at the rate of $500 per mouth for the first four months, and at the rate of $600 per month for each succeeding month. The lease was made by notarial act.

Tiie plaintiff alleges that George W. Hynson, who is also sued with Hodgson & Lytle, bound himself as their sureties to the extent of $2000, and that this obligation as surety for the payment of the rent was entered into verbally by Hynson in presence of witnesses.

The parties plead separate answers, the substance of which is that the plaintiff, by taking- back the leased premises and letting- them to ■other parties, annulled the contract. The answer of Hynson denies having entered into any contract as with plaintiff as alleged, and if he ■did so contract, he was released by the act of plaintiff in taking possession of the property and leasing it to other parties without his ■consent. Judgment was rendered against Hodgson & Lytle, in solido, for $5450, with legal interest, etc., and against Hynson for $2000, with legal interest from first January, 1869. Prom this judgment Hynson .alone appeals.

It is shown tLa.fi about the first of December next ensuing- the date of the lease, the lessees refused to keep the leased property longer, and that Hodgson tendered possession of it to the plaintiff’s agent, offering him at the time the keys of the buildings. The agent, it seems, with some hesitation took the keys and handed them over to Knower, ■of the firm of Knower & Walden, to whom the agent afterward leased the property from and after the first of December, 1868. In taking the property hack, the agent informed Hodgson that in doing- so it was not his intention to release Hodgson & Lytle or Ilynsou from their ■obligations under the contract. Hynson, it is not shown, was a"party to this arrangement. Neither does it appear that he knew anything about it, or ever consented to it.

Hynson places bis defense upon this ground, and also that a promise to pay the debt of another can only be established by written evidence. It is held on thd' part of the plaintiff that a distinction is to he taken between a promise to pay tlie debt of another and an obligation to become merely the surety of another. This question we do not feel •called upon to decide, as we think by the laches of the plaintiff in not •obtaining the consent of the party alleged to have been surety of the lessees to the new lease, he was thereby released. Articles 2675, 2676, -2677, 2679 and 3030 of the Civil Code; 5 Rob. 213.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further •ordered that there be judgment ior the defendant, the plaintiff and .appellee paying costs in both courts.


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    No. 3116.
    Fannie C. Oliver and Husband v. L. B. Dayries, Sheriff, et al.
    A salo of a plantation by tlie husband to tbe wife whereby the wife, in payment, credits her judgment against her husband for a portion of the price and for tlie balance she assumes and obligatos herself to pay certain mortgages which her husband has placed on the plantation, is absolutely null and void, and conveys no title whatever to the wife, because tbe wife is prohibited, from assuming or contracting to pay tbe debts of her husband. G. C. 1790.
    In such a case the obligation of the seller is vitiated as well as that of the buyer, and the fact that a portion of the price of the place paid by tlie wife was permitted and was legal, will not render valid tbe sale so as to drive the mortgage creditors to the direct action of nullity.
    "The seizure and sale by the mortgage creditors of the husband can not, therefore, ho stayed by the writ of injunction taken out by the wife, founded on her ownership and title to the idantation as transferred to her by her husband.
    APPEAL from the Seventh Judicial District Court, parish of Pointe Coupee.

      Miller, J. John Toist, ior plaintiffs and appellees.-

      Thomas H. Hughes, for defendants and appellants.
   Wyly, J.

On tbe ninth of January, 1867, the plaintiff obtained a judgment of separation of property and for $37,500 against her husband, Aiistide Bienvenu. On tbe fifteenth of January, 1867, tbe said Bienvenu transferred to bis said wife a plantation in tbe parish of Pointe Coupee for tbe consideration and price of $25,000, payable as follows: $5419 50 cash, lor which “Mrs. Bienvenu grants her husband a partial acquittance and discharge as so much paid on account of her judgment against him,” and for the balance of tbe price she assumed the payment of certain mortgage notes given by her husband, bearing ■on said property, amounting to $19,580 43. On the eighteenth of March, 1867, the same property was seized under a writ of fieri facias issued against her husband on the judgment of James Inness v. A. Bienvenu, on the docket of the district court of the parish of •Pointe Coupee, the debt upon which the judgment of the said Inness was based being the same assumed by the said Mrs. Bienvenu as part of the purchase price in the conveyance from her said husband.

This suit was instituted to arrest said sale, and an injunction was sued out for that purpose by the plaintiff herein on the following-grounds :

First — That the judgment rendered in the suit of Inness v. Bienvenu, No. 892, under which the fieri facias was issued, was null and void, the defendant being a resident of New Orleans, having never been cited nor made any appearance therein.

Second — That the mortgage granted by A. Bienvenu to Inness on the third March, 1859, had lost its rank for want of reinscription, having been first recorded on the first of April, 1859, and was not reinscribed until the twenty-third May, 1870.

Third — The plaintiff, Mrs. Bienvenu, is owner of the property under a valid and recorded title, and it can not be seized under & fieri facias issued against her husband; that if liable at all for the claim of Inness against her husband, he must proceed by the hypothecary action.'

The answer of the defendant, Inness, contains a general denial, alleges the judgment of Inness against Bienvenu tobe good and valid, denies the failure to reinscribe mortgage, and alleges that plaintiff,. Mrs. Bienvenu, acquired the property from her husband by act passed on the fifteenth January, 1867, and assumed therein the payment of the notes and mortgage due by her husband on the property; that-this act was duly recorded on the twenty-second January, 1867, whereby the mortgage contained in the act of third March, 1856, was duly reinscribed.”

The defendant also pleads in reconvention the assumpsit of plaintiff, contained in the act of sale of the property by her husband of the fifteenth January, 1867, and asks for judgment thereon against her for-$4676 96, besides interest.

The court held that the husband had acquiesced in the judgment obtained against him by Inness in suit No. 892, and that the grounds-of nullity set up can not, therefore, be urged now by plaintiff in injunction against it.

The court also decided that the mortgage contained in the act of sale from Inness to Bienvenu of the third March, 1859, had lost its-rank by the failure to reinscribe it, and that the jfiaintiff is not bound on her assumpsit to pay the same as a debt of her husband.

Judgment was rendered, making the injunction perpetual and dismissing the claim in reconvention. Inness, the defendant in injunction, has appealed.

The main question in this controversy is, to whom does the property under seizure belong ?

If it belongs to her husband, the plaintiff has no right to enjoin its-sale by his judgment creditor, even though she have a superior mortgage thereon, and if, on the other hand, she owns the property, of. course she has the right to restrain its sale by a judgment creditor of her husband enforcing a mortgage against it that has perempted by failing to reinscribe it, and she has also the right to sot up the nullity of the judgment under which her property is seized.

The plaintiff derived title from her husband and she is resisting the claim of her husband’s vendor, which she assumed as part of the price.

It is very clear that the plaintiff’s assumpsit of $19,580 of her husband’s debts, as part of the price, is prohibited by article 2412 of the Civil Code; and by article 1784, contracts between the husband and .the wife are forbidden. The only exception is found in article 2421, which declares that:

“A contract of sale between husband and wife can take place only in the three following cases:

“Mrst — When one of the spouses makes a transfer of property to the other, who is judicially separated, from him or her, in payment of his or her rights.

“ Second — -When the transfer made by the husband to his wife, even though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.

“ Third — When the wife makes a transfer of property to her husband in payment of a sum promised to him as a dowry.” * * *

Now, the plaintiff contends that her obligation to pay $19,580 as part of the price, is an absolute nullity; but that the sale is nevertheless valid because the other part of the price, to wit: $5419 50, was duly credited on her judgment against her husband, and she is protected by that clause in article 2421 which permits one spouse to make a transfer to the other, who is judicially separated, in payment of his or her rights.

If this principle be correct, the effect would bo the same if the credit upon plaintiff’s judgment had only been one dollar or one cent, and thus for an insignificant sum $25,000 worth of property of her husband, indeed his whole estate, might be transferred to her, and it would be a valid giving in payment, although not one-thousandth part of the consideration or price was paid. The same prohibition which the plaintiff invokes, to wit: articles 1784 and 2412, to vitiate her obligation to pay the $19,580 50, operates with like 'effect upon the corresponding obligation of the husband. Article 1784, which prohibits the contract, vitiates the obligation of the seller as well as the obligation of the buyer, and what is done in contravention of a prohibitory law is an absolute nullity. But the plaintiff claims ownership because of the consideration of $5419 50, which was credited on her judgment against her husband. To this we reply, your title rests upon a conventional sale and your vendor never consented to sell you the thing, worth $25,000, for the sum of $5419 50; and if your title ibo maintained the. court will be enforcing a contract which the parties never made. The sale is an entirety — the price, the thing and the consent; it can not be both null and valid; and we can not say that the plaintiff ought to have a share of the plantation equal to the valid part of the price, because the parties in the act never consented to •convey an interest or share, but the thing consented to be conveyed was the plantation ; a corporeal, not an incorporeal, was the object of the contract of sale before us.

Our conclusion is, that this sale, made in contravention of a prohibitory law, is an absolute nullity, and the title of the property never passed out of the husband of the plaintiff. The thing seized is, therefore, liable to tlie pursuit of the judgment creditor of the owner.

It is therefore ordered that the judgment appealed from be avoided .and annulled; and it is now ordered that the injunction herein be •dissolved and the suit be dismissed at the costs of the plaintiff in both courts.