author: Pociré, J. Bermudez, C. J.

text:
    No. 8291.
    City of New Orleans vs. Harry L. Graves.
    The Constitution prohibits any political corporation from imposing a greater license tax than is imposed by the Legislature for State purposes, hence, such corporation cannot impose any such tax on a trade or calling not subjected to a State license tax by the Legislature.
    As travelling agents are not required to pay a license t ix to the State, they cannot be held to pay a license to any political corporation in the State.
    ApPEAL from the First City Court of New Orleans. 81cinner, J.
    J. Ward Gurley, Assistant City Attorney, for Plaintiff and Appellant:
    1. The City of New Orleans is authorized “ to levy, impose and collect a license tax upon all persons pursuing any trade, profession or calling, and to provide for its collection.” Sec. 12, City Charter; Act 30, Extra Session 1870.
    2. Art. 206 of the State Constitution of 1879, does not prohibit the City of New Orleans from imposing a license tax upon any ‘ ‘ trade, profession, vocation and calling, ” upon which the General Assembly has notimposed a license tax for State purposes.
    3. Sec. 12 of City Ordinance No. 6773, A. S., as amended by Ordinances Nos. 6793 and 6868, A. S.,H which imposes upon “ all travelling agents offering any species of merchandise fci* sale or selling the same,” a license of $25 per month, or at their option $10 per weelc, is legal, just and proper, and does not violate any of the provisions of the State or Federal Constitutions.

      4. Ait. 206 of the State Constitution of 1879, does not require the City of New Orleans to graduate her license taxes. A license may be graduated otherwise than by the sales or receipts of a business.
    The license involved is a graduated one.

      Meyer Gufheim, for Defendant and Appellee:
    1. Municipal corporations have no inherent power of taxation. All power that they assume to exercise in this respect must be derived by direct grant from the State.
    2. In cases where the State of Louisiana levies no tax the municipal corporations of the State can levy none.
    3. Where the constitutionality of a city ordinance is in question, the active effect of the ordinance is to be considered, rather than the mere reading.
   The opinion of the Court was delivered hy

Pociré, J.

The defendant contests the right of the City of New Orleans to exact from him a license tax of $25 a month on his occupation as travelling agent, and urges, among other grounds, that the city ordinance imposing said license is violative of Art. 206 of the Constitution, which prohibits any political corporation from imposing' a greater license tax than is imposed hy the General Assembly for State purposes, and that no license is imposed on that calling hy the Legislature.

The City, appealing from a judgment in favor of defendant, contends that Art. 206 cannot he construed so as to imply a prohibition to impose a license on trades or occupations which are not liable to duties to the State, under its legislation, hut means, that in reference to any particular trade or calling, on which the State does impose a license, no municipal corporation shall be allowed to impose a greater license on such trade or calling than is imposed on the same by the State, and that under its charter, the City of New Orleans has unlimited power to impose a license tax on all trades, professions or callings, even as to those on which the State imposes no license at all.

We cannot assent to this proposition, and we give an entirely different construction to the Article under consideration.

It is a fundamental principle in our system of government that there is no inherent power in municipalities to levy taxes; they can tax only, as the State in its wisdom has thought proper. Cooley on Taxation, p. 209.

Under the present Constitution of this State, that principle is specially consecrated by the declaration that the taxing power is vested primarily in the General Assembly, and through the legislative department ; secondarily, in the parishes and municipal corporations. Art. 202 ; Surget vs. Chase, 33 An. 833.

Now, we hold it as an indisputable proposition that the Legislature, as the special repository of the State’s taxing power, can delegate no greater power than it can itself exercise, or at least than the Constitution allows it to confer or grant.

Hence, it is clear, that under Art. 206 the Legislature could not specially authorize the City of New Orleans, or any other municipal corporation, to impose a greater license tax than the General Assembly itself would choose to impose, or to impose a license on trades not taxed by the State itself.

It follows from the same premises, that any previous act of the Legislature conferring such power to the City of New Orleans would necessarily be inconsistent with the Constitution, (Art. 206) and would, therefore, be of no effect since the adoption of the Constitution.

Such is the inevitable fate of all powers conferred by the City charter of 1870, under which it is claimed that the City of New Orleans has the unlimited authority to levy a license tax upon all persons pursuing any trade, profession or calling, etc., without reference to the action of the Legislature on the subject of license or no license on such trade or calling.

We construe the true meaning of Art. 206 as a positive prohibition to all political corporations from imposing any license tax on all trades, professions or callings which are not subjected to a license tax by the General Assembly for State purposes.

Hence, we hold that the failure, omission or refusal of the Legislature to impose a license tax on any particular trade, calling or profession, is an implied prohibition to all political corporations in the State from exacting a license from the same.

For those reasons, we hold that the defendant is not liable to the license claimed of him by the city authorities.

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

Dissenting Opinion.

Bermudez, C. J.

The defendant resists payment of a license tax of $25 per month, levied by the City of New Orleans by ordinances, on persons pursuing his business. He charges its unconstitutionality- on several grounds, which were sustained by the City Court, from whose judgment the plaintiff has appealed.

It is claimed that the tax is unconstitutional:

(a) Because the City has not been empowered to levy it;

(&) Because the State itself levies no such ta.x, and there exists a special constitutional prohibition, in the Constitution now in force, against the levying by municipal corporations in the State, of any greater license tax than is levied by the General Assembly for State purposes;

(c) Because though, on reading, the ordinances appear to impose upon all travelling agents such license, they operate only against travelling agents from other States, and are in conflict with the Federal Constitution which guarantees to the citizens of each State the rights, privileges and immunities of the citizens of the several States.

{A) By its charter, Sec. 12, Act 30 of 1870, the City was delegated by the State the power “to levy, impose and collect a license tax upon all persons pursuing any trade, profession or calling, and to provide for its collection, etc.”

The exercise of the power lias uniformly been judicially sustained, and must continue to be so, unless the right to it has been withdrawn or abridged.

{J3) Article 206 of the present Constitution, which is relied upon as revoking or curtailing the power, reads: “No political corporation shall impose a greater license tax than is imposed by the General Assembly for State purposes.”

The object of this provision was to prevent municipal corporations from exacting higher licenses from persons pursuing particular avocations, than the State had adjudged such persons should pay.

In order to charge victoriously the invalidity or illegality of a license tax imposed by such corporation on that ground, there must exist a term of comparison, viz: the fact of the levying of a license by the State on the same calling. Where such is found wanting, the power of the corporation cannot be challenged successfully.

This Article modifies Sec. 12 of the City Charter in such cases only.

It is not pretended in this controversy that the State has levied any license on the business, within the purview of the city ordinances in question, or that the City has levied a different license on resident travelling agents.

■ While it is perfectly true that the State ■ cannot delegate taxing powers which she does not possess, it is no less so, that -where the State possesses a taxing power, but does not exercise it, she can delegate it in a proper case.

The State could undoubtedly have levied a license tax on the defendant, but she has not done so. From the fact that she did not exercise that power, it does not result that the power previously conferred on the City, to tax all professions and callings not exempt, have been revoked by the omission to tax. The abstention of the State cannot have the effect of a repealing law. A power delegated continues until recalled. The wants of a municipal corporation may proportionally be greater than those of the State. Hence, the power lodged in the City to require a license when the State would not deem it necessary to demand any. In the comparison of quantity, the absence of all quantity on the one side is no initial point. Zero' is no quantity.

(O) These ordinances, Nos. 6793 and 6868, A. S., impose the license without distinction, upon “ all travelling agents offering any species of merchandise for sale, or selling the same.”

They make no discrimination at all between resident and nonresident travelling agents. Had they made such discrimination, they would have had to share the same fate as a State law attempting such. 32 An. 832.

No privileges are secured by Sec. 2 of Article 4 of the Constitution of the United States, except those -which belong to citizenship. 18 How. 591. It was designed to prevontf each State from, discriminating in favor of its own people and against those of another, and to secure all' privileges and immunities in any State, as are by the laws and Constitution of the United States, secured and extended to her own people of the same class and otherwise similarly situated. 7 Minn. 13. But the citizens of other States are not entitled to greater rights than the State grants to her own citizens. 26 Barb. 270: 5 Sand. S. C. 5, 681; 20 N. Y. 562.

A tax upon non-resident traders, or transient merchants, is valid where the taxation is the same as that imposed upon resident traders. 6 Iowa, 546; 51 Ala. 52; 12 Wall. 418; S. C. 31 Md. 279; 12 Wheat. 449; 27 Mo. 664; Cooley on Taxation, 64; Burroughs on Tax., § 591.

I think that the judgment appealed from is incorrect and that the City should recover.

Rehearing refused.

Levy, J., absent.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 7580.
    A. Balestracci vs. The Firemen’s Insurance Co.
    To invalidate a claim on a policy of insurance, false swearing in proofs of loss must be wilful and intended, or calculated to defraud.
    Damage by fire includes not only loss by actual ignition, but all losses necessarily following from the ocourrenoe of fire and arising directly and immediately from that peril.
    Whether removal of goods was necessary is to be judged, not by the actual result, but by the circumstances of the case as they appeared to parties acting at the time.
    APPEAL from the Sixth District Court for the Parish of Orleans. lüglvtor, J.

      Breaux £ Ball, for Plaintiff and Appellee :
    i.
    The circumstances of each case must determine the necessity for removal. But generally, any loss resulting from an apparently necessary and bona fide effort to put out a fire, wheth er it be spoiling the goods by water, or throwing the articles out of the window — in a woid, every loss that clearly and proximately results, whether directly or indirectly from the fire —as goods lost or stolen at afire — is within the policy. Elandois on Eire Insurance, p. 465, 3 Law Rep. (Exch.) 71; 10 Casey, (Pa.) 96; 1 Bosw. <N. Y.) 367. 11 Mich. 425; 67 Me. 91; 16 An. 426; 13 Dlinois, 676; 49 Me. 205.
    II.
    An honest mistake made by the insured in bis proof of loss will not vitiate the policy. The proof forms no part of the contract. C. L. J. 13, p. 393 ; Wood on Insurance, Seo. 427; 34 Wis. 364; 49 Wis. 89, 501; 55 N. Y. 220; 54 25". Y. 198; 48 111. 31; 52 HI. 464; Inlanders on Eire Insurance, p. 326.

      Brauglm, Bucle £ Dinleelspiel, for Defendant and Appellaufc:
    1. The presentation of preliminary proofs of loss by fire is a condition precedent to a recovery under the policy. And those proofs must he in the form prescribed by the policy. An acceptance by the Company of incomplete proofs is not, of itself, a waiver. Bates’ Digest, Sec. 21, page 516; Ibid, Sec. 22; Supreme Court Iowa, June term, 1861, Keenan vs. Missouri State Mutual Insurance Company; 38 Penn, page 130, (1861); 66 Ibid, page 9, (1870); May on Insurance, page 564; Ibid, Section 474, page 578.
    2. Any intentional false swearing on a material matter will forfeit all claim under the policy. May on Insurance, page 580; 2 Hall, Superior Court, N. Y. 790 ; 35 Mo. 148; 43 Penn. 350; 19 Upper Canada, Q. B. 110; Bates’ Digest, page 399 et seq.; 5 Cold. 547, (1863); 12 La. 356; Ibid. 344; 1 Annual, 216; Phillips on Insurance, Yol. 2, page 498, Sec. 2; Ibid, page 660; 5 Bennett, page 177; Ibid, 312, 339, 369.
    3. Loss by theft, during or after a fire, when expressly exempted by the policy, cannot be recovered. If the theft be after the removal made for the purpose of saving the goods, the rule is not changed. To recover damages caused by a removal of goods at a fire, the removal must be shown to have been necessary, and made for the purpose of preserving the property. No recovery can be had when the removal is made by a mob. May on Insurance, 491, 492; 17 Annual, 131, 132; 3 Bennett, 349; 15 Annual, 217; 14 Mo. 3 (1851) Bates’ Digest, Section 1; 5 Annual, 482.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff made a contract of insurance with defendant, whereby it insured the fixtures and contents.of his coffeehouse to the extent of $1,600, agreeing to make good all such loss or damage that may happen by fire to the property herein insured.”

The facts are, that at ten o’clock at night, while plaintiff’s establishment was still open, a fire occurred in the adjoining building. Owing to a mistake in the fire alarm signals, the fire department generally was dispatched to a point distant from the true one, and was considerably delayed in reaching the scene. In the meantime, the fire was raging furiously and threatened the house occupied by plaintiff, which, indeed, actually caught and was damaged to the extent of some hundreds of dollars, which the owner actually recovered from the Insurance Company in which he was insured.

Under the excitement of the occasion, and in the absence of the fire department, and no doubt influenced by consideration of the inflammable character of goods of plaintiff, a number of persons, including friends and neighbors of the plaintiff, went to work to remove the plaintiffs stock and fixtures, and did remove the whole of them. They consisted chiefly of wines and liquors in bottles and similar frangible goods, such as are kept in coffeehouses ; and being handled by excited men and thrown down in piles on the street, naturally great breaking and damage resulted. The evidence is precise and uncontradicted, that the value of the property in the coffeehouse at the time of the fire was $3,563.50, and that the loss and damage amounted to $3,189.54.

The defenses are the following:

1. Fraud and false swearing in the proof of loss, vitiating the policy. The basis of this charge is, that plaintiff excluded from, his statement of goods saved, twelve barrels of whiskey, which he had recently received, and wliieh he seems to have considered as not added to his stock. His attention was called to this fact by defendant’s president, when plaintiff handed in his proofs of loss, and. he at once admitted the safety of those barrels, and gave the reason why he had not included them in the statement. The president then received the proofs without further comment. As these barrels were not made the basis of any claim of loss, and as the defendant received full information of all the facts contemporaneously with the delivery of the proofs, we perceive no ground for this defense. There is nothing to support the charge of either actual or intended fraud.

2. That the damage is not within the peril insured against. The doctrine that insurance against fire only covered damage resulting from actual ignition is long since exploded. The sound doctrine is well expressed by high authority as follows: The fair and reasonable interpretation of a policy of insurance against fire will include within the obligation of the .insurer every loss which necessarily follows from the occurrence of the fire to the amount of the actual injury to the subject of the risk, whenever that injury arises directly and immediately from the peril, or necessarily from incidental and surrounding circumstances, the operation and control of which could not be avoided.” Brady vs. Northwestern, 11 Mich. 425; Case vs. Hartford, 13 Ill. 676; Walton vs. Louisville, 11 Pet. 224; Peters vs. Warren, 14 Pet. 108.

3. That the liability is excluded by a condition of the policy providing that the Company shall not be liable for loss or damage by fire, which may take place by means of any invasion, insurrection, riot or civil commotion, etc.” Evidently this condition applies only where the ./ire is occasioned by one of the causes referred to. Were it otherwise, the attempt to liken the persons who removed these goods to a riot, finds no. support in the evidence.

4. Another condition of the policy excludes liability for loss by theft, at or after a fire.” The evidence affords no support to the theory that the damage, to arly considerable extent, resulted from the theft.

5. The last and only serious defense is, that the removal of the goods was unnecessary. The policy contains two conditions which should properly be considered together, one exempting the Company from liability for damage caused by removal of property from a building, excex>t it be proved that such removal was necessary to x>reserve the property;” another, that the best endeavors of the assured shall be used in saving and protecting the property from damage at and after a fire,” under penalty of forfeiture of all claim under the policy.

Between these two conditions it is apparent that the insured is placed in a dilemma in which he must exercise his discretion as to what his duty is. Although, in the present case, the plaintiff was so occupied with his family, who were in the house, that he was unable to give his attention to the goods, we must treat the removal precisely as if he had himself ordered it. The only question is, whether it was necessary, within the meaning of the condition of the policy. That question is not to'be determined by the actual result, nor by the judgment of professional experts •who, owing to the mistaken signals, did not reach the scene in time. It is to be determined by the circumstances of the case as they appeared to those who acted upon them. Considering the apparent imminence of the peril, the unusual delay in the arrival of the fire department, and the inflammable nature of plaintiff’s stock, we think the circumstances were such as to make the removal apparently necessary for the double purpose of saving the goods and of controlling the fire by preventing its communication to such inflammable materials.

We see no reason to doubt that such was the honest conviction of those who undertook the removal, as stated by many of them in their testimony. This is sufficient to maintain the insurer’s liability. Flanders Fire Ins. p. 465; Beaumont on Ins. p. 41; 13 Ill. 681; 49 Me. 206; 10 Cush. 306.

The testimony is conflicting, but it has been weighed by the District Judge, who heard and saw the witnesses, and our reading of it confirms his conclusion.

The clause of the policy providing that in case of damage by necessary removal, “tbe damage shall be borne by the assured and the Company, in proportion as the sum insured bears to the whole value of the property at risk,” finds no application here to reduce the plaintiff’s claim.

The property at risk was more than double the amount insured, and the loss also more than doubled it. Defendant’s proportion would, therefore, exceed the amount claimed.

Judgment affirmed at appellant’s cost.

Rehearing refused.

Levy, J., absent.


author: Spencer, J. Poché, J.

text:
    No. 7685.
    William Nieman vs. M. & M. J. Condran.
    In an action en déelaration de simulation, it is incumbent on the plaintiff to allege and prove fraud and simulation, unless it appear from the evidence that the vendor has retained possession of the property purported to be transferred. In that case, under proof of the insolvency of the vendor and of injury to the complaining creditor, shown to be a creditor at the time of the alleged simulated sale, the burden is on the defendant to show and establish the reality of the sale. Judgment reversed.
    APPEAL from the Fourth District Court for the Parish of Orleans, Houston, J.
    J. jS'. Ferguson, for Plaintiff and Appellee.
    IF. S. Benedict, for Defendants and Appellants.
   On motion to dismiss, opinion of the Court was delivered by

Spencer, J.

On the merits, by

Poché, J.


text:
    No. 7206.
    Mrs. Amelia Boyd vs. New England Mutual Life Ins. Co.
    The articles of our Code fixing the lapse of time essential to establish the presumption of death from absence without being heard of, apply to cases where the absence is the only circumstance supporting the presumption of death.
    Death, like other facts, may be established by circumstantial evidence, when direct evidence is not obtainable; and when absence without tidings concurs with other attendant and supporting circumstances to produce the conviction that the party is dead, such proof is all that can he required.
    APPEAL from the Fifth District Court for the Parish of Orleans, Hudson, J., ad hoe.

      Sami. B. Blanc, for Plaintiff and Appellee:
    1. Evidence which brings conviction to the mind of ordinary men, beyond a reasonable doubt, is sufficient to establish death.
    2. There are cases where death can only he shown by circumstances; in such cases the court is hound to deduce from all the incidents surrounding the accident and attending the disappearance. To require anything so positive as occular evidence, would defeat the ends of justice iu such instances.
    3. The lapse of time and absence from home without news is strongly presumptive of deathT and this presumption is frequently applied by the court, where no adequate reason for such absence and silence can be assigned by those who maintain the opposite view.
    4. In fact, seven years’ absence has been adopted by Legislatures, and applied by conrts, as establishing death and relieving plaintiff from farther proof, in suits against Insurance Companies.

      T. L. Bayne, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

This is a suit upon a policy of life insurance, presenting the single question of the sufficiency of the proof of death of the person whose life was insured.

Clotworthy Boyd, the subject of the insurance, left Brashear City in July, 1875, on a voyage by sea to Galveston. Iu company with oue Dowling, he occupied a stateroom opening on the guards, abaft the wheel house, near which was a space where the edge of the vessel was protected by nothing but a swinging chain.

Boyd, during the day, was very sea sick, and he and Dowling sat oil the guards opposite this space, and Boyd frequently went to the edge and vomited over the chain. Late at night, Boyd continuing to suffer, they went to their stateroom and Dowling undressed and went to bed : but Boyd, soon after, complaining of sickness and the close air, asked Dowling to get up and take him out. Dowling excusing himself, he went out alone, and has never since been seen or heard of.

Dowling, on awakening in the morning, found his berth vacant. Not specially alarmed at first, he inquired of the steward, who told him he had not seen him ; then, after waiting awhile, made some search for him with the steward, without finding him. The steamer arrived in Galveston abont 10 a. m., and Dowling watched the passengers go ashore to see if Boyd would come out. He then went to the residence, of Boyd’s brother in Galveston and informed him of the circumstance.

. -Boyd lias never since been heard of. His valise, which ivas his only luggage, remained on the vessel, and his hat was also found on hoard, though the evidence as to where it was found is not satisfactory.

Proofs of loss, including the death and its circumstances were furnished the Company, after reasonable delay, and several months were allowed for further investigation before suit ivas brought.

Nearly seven years have now elapsed since the date of the disappearance, and we are not advised that any tidings have yet been heard of Boyd.

If the proof of death stood upon a bare presumption flowing exclusively from the mere disappearance of Boyd, we agree with the counsel for defendant that the duration of his absence without being heard of, would not be sufficient to support a presumption, equivalent to proof, of death, under the articles of our Code touching absentees. C. C. Arts. 57 to 75.

But death, like all other facts; may be established by circumstantial evidence, when, from the nature.of the case, direct evidence is hot accessible.

Absence, without being heard of, though not of sufficient duration to create a legal presumption of death, may yet be one of other attendant and supporting circumstances which, taken together, would satisfy the mind and conscience of the judge or jury that the party was dead. This is all that is required.

Thus, disappearance under oirciimstances of shipwreck, or earthquake or battle, or explosion or like perils, might well produce such conviction. And this Court has held that, in such matters, “ it is essentially within the province of the Judge to draw the line of distinction, by the exercise of a sound discretion, founded on the facts of each particular case.” Succession Vogel, 10 An. 139 ; Succession Jones, 12 An. 397.

In this case, there are many circumstances, besides the mere disappearance, which point strongly to the death of Boyd, which suggest themselves from our statement of the facts without the necessity of particularizing them here.

The Judge a quo concluded his able opinion in these words:

“ I do not pretend to assert that the deatli of Clotworthy Boyd lias been demonstrated. Indeed, it is j>ossible that he still lives and is secreting himself. But, after listening attentively to the witnesses and observing closely their demeanor, I have come to the conclusion, I am convinced, that Clotworthy Boyd met an untimely end- on the niglit of 31st July, 1875, and that he is dead.”

The four years that have rolled by since the date of that decision, serve strongly to confirm the correctness of that conclusion.

Judgment affirmed at appellant’s cost.

Levy, J., absent.


author: Todd, J.

text:
    No. 8476.
    Parish of St. John the Baptist ex rel. Parish Treasurer vs. T. Shexnaydre.
    The authority of Police Juries relative to the protection and preservation of completed levees has not been divested or impaired by tbe Constitution or any law of this State.
    An ordinance passed by a Polioe Jury imposing afíne of five dollars on persons riding or driviug on the public levees is legal and valid.
    An exception as to the right and capacity of the plaintiff to sue and stand in judgment, comes too late after default.
    APPEAL from the Second Justice’s Court, Parish of St. John the Baptist. Augustus, J. '

      Jas. D. Augustin, for Plaintiff and Appellee :
    The want of authority to sue cannot be pleaded after a judgment by default. C.P. 333 j Hennen, E. D-, p. 1165, par. 23; 14 An. G58.
    The Legislature can delegate legislative powers to Polico Juries. Constitution, Art 202.
    The control of levees in their preservation and police care and protection, is expressly vested by law in Police Juries. Acts 1877, Extra Session, p. 214, Section, 2; 1878, Extra Session, p. 219 ; S. E. 10; 1880, Eo. 88. p. 212. Sec. 1; Const. 213, 214.
    The Parish Treasurer is authorized to sue for the Parish. Bov. St.Sec.264i. (Also ordinance in evidence.)
    Police Juries are empowered to determine the quantum of fines against all such as shall transgress their regulations. Bev. St Sec. 2743, pp. 1 and 7.

      L. Depoorter, for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The only question involved in this appeal is the legality of an ordinance of the Police Jury of St. John the Baptist imposing a fine of five dollars on persons riding or driving on the public levees of said Parish. .

The police juries of the several parishes were invested, by law, with full authority over public levees, and so far as relates to their power to pass all ordinances, for tbe preservation and protection of completed levees, that power has never been divested or impaired by subsequent legislation.

Tbe ordinance assailed having for its object tbe protection of completed levees, was clearly within the scope of their authority, as it was evidently designed for the protection of such levees, by forbidding, under a penalty, persons from injuring the same by riding or driving thereon.

The exception as to the right of the Parish Treasurer to sue for and recover such fine came too late, having been made after default. C. P. 333; 14 An. 653. Besides, he derived his authority in the premises under the ordinance in question, as well as from R. S. Sec. 2641, em ■ powering such officer “ to direct prosecutions ordered by the Police Jury, for all debts that are or may be due the parish for which he is elected.”

Nor is the legality of the ordinance attacked affected by the fact that its operation was restricted to certain portions of the levee, or levees, in a designated part of the parish.

It may well be that there were good reasons, arising from their condition in the localities named, to justify special measures for their protection.

Por these reasons, the judgment appealed from, which was against the defendant, is affirmed with costs.

Levy, J., absent.


text:
    No. 7672.
    City of New Orleans vs. Kennard, Howe & Prentiss.
    The exemption of the income of all persons up to $1,000, and of the household furniture of every one up to $500, applies equally and uniformly to all taxpayers, and does not violate the provisions of the Constitution of 1868, as interpreted by the court organized under that Constitution. Judgment affirmed.
    APPEAL from the Fifth District Court for the Parish of Orleans. Rogers, J.

      J. Ward Gurley, Jr., Assistant City Attorney, for Plaintiff and Appellee.

      Kennard, Howe <& Prentiss, for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.


text:
    No. 8577.
    Succession of Henry Kuntz.
    Whore a tutor gives a special mortgage in lieu of a general one, and liis final account shows an indebtedness to the minors greater than the amount of such mortgage, as against a party holding a subsequent mortgage on the same property, the minors are protected only to the amount stipulated in the act.
    Such a .special mortgage does not cover or include interest, although the act may so declare, as the law which authorizes such inoitgages, requires that the sum mentioned in the act must include both the principal and any interest which may probably accrue.
    Though the minors may collect a part of their claim against their tutor by judgment or otherwise, prior to a final settlement, the sum so collected cannot be imputed as a credit on the amount fixed in the act of mortgage, and deducted therefrom. If the tutor’s indebtedness to them still equals the amount of the mortgage, the whole of it can be collected by preference.
    The ordinary rules applicable to the interpretation of payments between creditor and debtor do not apply to the instant case.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Mott, Kelly & Saunders, for Kuntz’s Heirs, Appellees :
    1. The Act of Mortgage states the sum due with sufficient exactness when it mentions the principal sum and interest.
    2. A special mortgage is simply the General Mortgage bearing on one piece of property.
    3. The special mortgage secures the pa.ymeut of whatever sum may be duo by the tutor, on . his final account, within the amount of the special mortgage.

      4. The error in the judgment of the lower court to the prejudice of the minors, was clearly from inadvertence, and the judgment should be so amended as to recognize the priority of the minors’ claims, to their entire extent.

      A. J. Lewis* same side :
    The general mortgage in favor of the minors Kuntz was for a greater amount than the special , mortgage after wauls granted hy their tutor. Both existed prior to the Const, of 18(58, which cannot impair the obligation thereof.
    This special mortgage did Hot destroy the goneral mortgage, hut merely restricted the mortgage in favor of the minors to the property specially mortgaged, and relieved the i omaindor of his property therefrom.
    Tins special mortgage is also for the fide ity of the administration of the tutor.
    The amount as fixed in the liquidation of the tutor’s aceounf, 'prior to granting a special mortgage, and as fixed in the act of special mortgage itself, docs not conclude the minor, who may open up the account on the final settlement with his tutor, and enforce the true balance on the property specially mortgaged.
    Third persons dealing with the tutor, relative to the property specially mortgaged, are fully informed hy the act of special mortgage itself, that such property is the security for the preservaiion of the minor’s rights, present and future, and for the faithful administration of the tutor.

      Braughn, Bucle & JDinlcelsjpiel, for Germania Ins. Co., Apppellant:
    1. A minor's mortgage, to have effect against third parties, must he recorded. Constitution 1869, Art. 123. Acts of I860, Ko. 95.
    2. The mortgage of the minor is for the recorded amount. C. C. 3351.
    3. Conventional mortgages for an undeterminate amount cannot be enforced as to third parties. 33 An. 705.

      4. Imputation of payment, by operation of l<uv, is made to a mortgage rattier than to any ordinary debt. 15 An. L74 ; 24 An. 472; Hunnen’s Digest, voL II, p. 1106 ; Payment, III, 3; 12 D. 1.
    5. The imputation made by tlie creditor must be accepted by the debtor, to be binding on him. 15 An. 626. Ko imputation can be made to the detriment of rights of third parties. 2 An. 520; 6 K. 216. The imputation cannot be made after the payment. 2 An. 24; 3 An. 351.
   Tlie opinion of tlie Court was delivered by

Todd, J.

This case presents a contest over tlie proceeds of tlie sale of mortgaged property sold under judicial process.

The facts, out of which the controversy grows, are substantially as follows:

Henry Kuntz died in 1864, leaving three minor children, Charles, Anna and Otalice. His widow, tlie mother of tlie children, having forfeited tlie tutorship by lier remarriage, without beiug continued therein by family meeting, one John Poustein, in 1865, was appointed dative tutor to the minors. He gave bond as tutor in the sum of five thousand five hundred dollars. Subsequently, the rights and interests of the minors in the succession of their father, having been liquidated and reduced under proceedings instituted for that purpose, to $1,365, on tlie application of the tutor, and in conformity to the advice of a family meeting, tlie tutor was permitted to substitute a special mortgage in lieu of tlie general mortgage for tlie last stated amount.

This special mortgage was executed on tlie 24th of April, 1869, and on its execution, an order was granted for the cancellation of tlie general mortgage.

On the 26th of the same month and year, Poustein gave a second mortgage on property, in favor of G. Ullmayer, for $2,000, of which the Germania Insurance Company, one of the parties to this controversy; became the holder and owner.

On the 3d of September, 1879, Poustein filed bis final account, which was opposed by tli<3 heirs, and judgment was rendered against him for $1,721.88.

Under this judgment the mortgaged property was seized and sold, and bought in by tlie said Company for $2,600. After this adjudication a rule was taken by the Company against the parties holding the prior mortgage, the children of Kuntz, to show cause why the Company should not be entitled to receive the price of tlie adjudication, less $809.48, admitted to be due tlie heirs of Kuntz. This admitted balance was the difference between the amount of the special mortgage in their favor, $1,365, and $555.48, which they had previously collected under execution against Ponstein, and which amount, thus collected, the Company claimed should be imputed to the amount of the minors’ mortgage, and reduce it pro tanto.

On the trial of the rule the court a qua decreed that the Kuntz heirs were entitled to receive out of said proceeds, $1,720.98, the amount of their execution and costs, and the Insurance Company the residue, and the latter has appealed from this judgment-.

No question is raised in regard to the validity of the special mortgage given by the dative tutor.

Tiie mortgage security originally provided by our Code in favor of minors, was the legal mortgage. Thus, Art. 3288 declares:

“ Minors * * * have a legal mortgage on the property of their tutors and curators as a security for their administration from the day of their, appointment until the liquidation and settlement of their final account.”

Subsequently, in certain cases, and after proper proceedings, a special mortgage was authorized to be given by the tutor, in lien of the security afforded by the legal mortgage. This provision is now embodied in Art. 3-31 of the Code, as follows :

“In all cases where a special mortgage shall be given by tutors, in lieu of the legal mortgage existing in such cases as recognized by law, it shall be the duty of the Judge to cause the property proposed to be mortgaged to bo appraised by experts iu the same manner as is provided when adjudications of the property of minors are made to their surviving father or mother, * * * the amount due the minors to be ascertained by previous liquidation, to be made according to law, and including all interest which will probably accrue."

The effect of giving the special mortgage is to free the rest of the immovables of the tutor from incumbrance, on account of the minors’ rights or claims. It does not, however, destroy the general mortgage, but it has been held that it simply restricts its operation to the particular property mortgaged. 23 An. 544; 33 An. 595.

By Article 123 of the Constitution of 1868, the principle of which is continued in our present Constitution, a mortgage cannot affect third persons unless recorded, and all mortgages in favor of minors were to cease unless recorded at a stated time. In the acts providing for carrying into effect this constitutional provision, now forming Articles of the Code, and directing what is to be recorded and the manner of registry, it is prescribed that the tutor’s bond, or the certificate of the clerk containing an abstract of the inventory, where no bond is required, “ shall operate as a legal mortgage in favor of the minor for the amount therein stated, on the immovable iwoperty of the tutor.” C. C. 3351.

The mortgage in favor of the minors can have no effect against third persons unless recorded, and from the last provisions quoted, it would follow, that when recorded, it could have no effect against third persons, beyond or exceeding the amount shown by the record. It is only up to this amount that tlio mortgage has any existence as to third persons. And this applies as well to the special mortgage as to the legal; for, as we have stated, the special mortgage is merely respective of the legal mortgage, and it is only special because limited in its operation to particular property.

And we do not think, as did the District Judge, that this mortgage covered and included legal interest on the amount of the principal sum, from the date of the act; and by adding the interest, he estimated the mortgage protecting the minors to amount to $2,276.80.

The amount stated in the act of mortgage did not represent a debt owing at that time from the tutor to the minors, but the special mortgage was to take the place of the legal mortgage, which, as we have seen, was to secure the faithful administration of the tutor, and to cover his eventual liability, when the tutorship should have terminated and a settlement with his wards should be made. This is shown by the express conditions of the act. It is true that the act recites that it was executed to secure the sum stipulated therein and legal interest thereon, but in this it not only contravened the order of the Judge authorizing its execution, which limited the mortgage to the principal sum, but contravened also the requirements of the law, as we have seen, which prescribed that the amount of the mortgage should be ascertained and fixed by previous liquidation, and this amount should include all interest that would probably accrue. Even if the amount stated could be construed to represent the capital of the minors, it will be presumed that their expenses would much more than absorb all the interest accruing from so small a capital.

We are of opinion that, whatever might be the indebtedness of the tutor to the minors on his final settlement, under the operation of the present laws on the subject, it could not be enforced against third persons beyond the amount of the mortgage, whether general, legal or special, recorded against the tutor. And the authorities to which we are referred as sustaining a different principle, are authorities without force under the radical change on the subject of minors’ mortgages, inaugurated by the Constitution of 1868 and the Statutes under it, and confirmed by subsequent jurisprudence.

Whilst thus concluding, we do not think that any amount paid during the tutorship and before the discharge of the tutor, whether paid on account of the maintenance and expenses of the minors, or paid in money collected on their judgment against him, is to be specially imputed to the amount expressed in the act of mortgage and deducted therefrom, as contended for by the counsel of the Insurance Company. As before stated, this amount did not represent an actual debt fixed and liquidated, owing by the tutor to the minors, but was to secure his faithful administration of the estate of the minors, and Whatever sum he might owe them, growing out of his administration, in his final settlement and up to the last moment preceding his discharge, not exceeding the amount stipulated .in the act. This results from the very purpose for which the mortgage was given, and to allow such imputation for sums paid to the minors, or on their account, would defeat the very object of the law, which was to provide security to meet any balance that the tutor might owe at the termination of his trust. It is, therefore, very .evident that the principle governing the imputation of payments between ordinary creditor and debtor are not applicable to this case.

Tiie conclusion we have reached compels rrs to amend the judgment of the lower court, by allowing out of the proceeds of the sale, to the heirs of Kuntz, the amount of tlieir special mortgage and costs of sale, and not their entire judgment against their tutor.

,It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be amended, by decreeing that the Germania Insurance Company is entitled to receive the proceeds of the sale of the property of John Ponstein, loss the sum of- $1,365, and- the costs and charges of the sale, and the sheriff be, and he is hereby ordered to pay over the same to the Company, and that he pay to the children of Henry Kuntz, the said sum of thirteen hundred and sixty-five dollars, and the judgment thus amended is affirmed. The costs of botli Courts to be paid by the defendants in the rule, the children and heirs of Henry Kuntz.

Levy, J., absent.


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    No. 7631.
    Robert Watson et al. vs. B. M. Turnbull et al.
    The bauks of the river are public, and within her corporate limits the City of New Orleans has the right to control, manage and administer their use for the public convenience and utility. Riparian proprietors have no right, by injunction, to restrain tbe exercise of this right.
    The discretion of the city iu determining what are proper and nee led facilities for commerce, and on what part of the river banks, within her limits, they should be established, is not a proper question for judicial control or interference.
    APPEAL from tbe Third District Court for the Parish of Orleans. Monroe, J.

      Bolt. G. Dugué, for Plaintiffs and Appellants.

      G. F. Bwelc, City Attorney, Wynne Boyers, for Defendants and Appellees:

      Both under general laws, and express authority of her charter, the City of New Orleans administers the use oi the river banks for the public convenience and utility, and has all the powers requisite to that object. She has the right to all advantages it may produce, and can make works to increase the revenues. City Charter, Sec. 12; 18 L. 278.
    The Council has the right to remove, or cause the removal, of works constructed on river bank, with or without permission, by private persons. 1 M. 187 j 4 M. 10 j Kendigvs. City, 20 An. 337, and other authorities cited in the brief.
    The “riparian proprietor,’* -within municipal limits, even conceding to Mm the right of acquiring ownership to batture, jure alluvionis, has no lightof ownership or possession and nse to the river bank, the use of which is primarily in the public, administered for it by the City Couucil. No part of the river bank or batture cau be reduced to private use and possession without the consent of the city government, or on a judgment of a court of competent jurisdiction, as provided by See. 318, B. S.'
   Tlie opinion of the Court was delivered by

Fenner, J.

The question involved in this case is, whether the owners of property bordering on the river, within the corporate limits of the City of New Orleans, can enjoin tbe city authorities from placing “hitching posts” or clusters of posts along the river hank, in front of their property, with the view of establishing a landing place and furnishing-facilities for the landing, fastening, etc., of coal boats and other water craft.

The grounds of the injunction sought, so far as in the least pertinent, are, that there is no necessity of commerce requiring the placing of such posts; that plaintiffs had already placed, at their own expense, all such posts as were required; that the design of the City is not to facilitate commerce,.but to exact a revenue from commerce; that said action would obstruct tbe free use of tbe banks of the river, and cause deterioration in value to the property of complainants. The banks of rivers are public.

Within the corporate limits, the City of New Orleans, under her charter and under the general law, lias the right to control, manage and administer the use of the river hanks for the public convenience and utility ; to establish wharves and landings; to erect works and provide facilities for the use of vessels and water craft; and to charge just compensation for the use thereof. Riparian proprietors have no right to appropriate to their exclusive use these banks, and they have no private property in the use thereof, which is public. Tbe discretion of tbe city authorities in determining wliat are proper and needed facilities for commerce, and on what part of the river hank, within her limits, they should he established, is manifestly not a proper subject for judicial control or interference. Whatever incidental damage may result to proprietors from the exercise of these unquestionable corporate rights, it is damnum, absgiic injuria.

These principles are elementary and established by numerous authorities. 1 M. 187; 4 M. 10; 3 L. 563; 18 L. 278; 6 R. 349; 2 An. 538; 5 An. 34; 15 An. 657; 26 An. 357; 27 An. 17; 10 An. 171 and 523; 30 An. 190.

This case raises no question as to right of the City to remove the hitching posts which had been established by plaintiffs.

Whether the facilities provided by the City will justify her in charging any, and if so, what wharfage dues from vessels using them, is a question not pertinent here.

Equally impertinent is the validity of the contract under which the employee of the City is doing the work; though it may be added, that there is no evidence supporting the allegation.

Judgment affirmed at appellants’ cost.

Levy, J., absent'.


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    No. 7639.
    Edward Cotton et al. vs. Annie F. Cotton et al.
    The husband, as head and master of the community, has the Tight to dispose of its movable effects by onerous title, or even by gratuitous and particular title.
    Whatever be the rights of creditors, the wife can only attack such gratuitous dispositions of movables, on allegation and proof that they were fraudulently made for the puipose of , injuring her. ‘ ’
    APPEAL from the Third District Court for the Parish of Orleans, Monroe, J.

      T. M. Gill, for Plaintiffs and Appellants:
    1.The probate Courthad exclusive jurisdiction of this cause.
    2.The Court erred in admitting in plaintiffs’ behalf the records, petition of V. F. Cotton, tutor etc.
    3.The Court erred in excluding evidence to prove that neither plaintiffs nor their father had funds or other means with which to purchase the property; erred in excluding the evidence to prove that the property was acquired and paid for after the marriage of the defendant, Annie T. Cotton, and heríate husband, Valentine F. Cotton, and by community funds, and notwitb the funds of either Valentine F. Cotton or the plaintiffs; erred in excluding the evidence to prove that defendant and her late husband, after thoir marriage, procured the materials for the construction of buildings on tbe property. 6 An. 728 ; 15 An. 169,580; 16 An.206; 18 An. 286-287; 1 L. 2.19-249; 4 An. 501; 15 An. 702 j 29An.4; 29 An. Tinman vs- Bladis, n. r ; 27 An. 12 L; 26 An. 547-548; 24 An. 210-211; 9 An. 29 ; 4 An. 441 ; 15 L. 311; 2 L. 3 ; 19 L. 387.
    4.Fraud was sufficiently alleged to admit proof of the same, and all proof offered on the part of the defendant, Annie T. Cotton. I£. C. C., Sec. 4, Art. 2404; 2 ÍT. S. 13.

      W. 8. Benedict and Jos. B. Hornor, for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiffs are children of the late V. F. Cotton, by his first marriage with Dicey M. Brown, aud are heirs of their said mother. In 1840 their mother sued her husband, V. E. Cotton, for separation of property, and obtained a judgment against him for $17,399.58.

After her death, to-wit: in 1853, V. F. Cotton, as tutor of plaintiffs, then minors, applied to the proper court of liis domicile, representing that he had in his possession above $2,000 belonging to them, which he desired to invest in the property herein claimed, and he asked for a family meeting, to authorize the purchase, etc.

After obtaining the necessary authority on the 10th of. June, 1853, in his capacity of tutor, he purchased for and in behalf of the said minors, the said property at the price of $2,000, payment of which the vendors acknowledged to have received in cash.

The plaintiffs bring the present suit to enforce their title to said property, against their stepmother, widow by second marriage of Y. E. Cotton, who resists substantially on the ground that the property belongs to the community subsisting between her and her late husband, having been purchased by the latter, after her marriage, with funds belonging to said community and not to said minors, and fraudulently purchased in the name of said minors, to cover up and conceal the same from the pursuit of creditors.

We agree with the District Judge, that neither as administratrix of Y. E. Cotton, nor as widow in community, could defendant be heard to set up such a defense.

Her husband, as head and master of the community, had a right to dispose of its movable effects by onerous title, or even by gratuitous and particular title. C. C. 2404. The only right of action which the wife.'has against such dispositions is on proof that they were made in fraud for the purpose of injuring her. No such charge is here made. On the contrary, she alleges that the object was to injure creditors, and “ to secure a home for himself and family.” Whether the $2,000 invested in this property belonged to the minors, or was owed to them by their father, or was given to them by him, their title to it was equally good_ as against the defendant, and the property bought with it for them and in their names is their property.

The .act of defendant in having this property inventoried 'in the succession of Y. E. Cotton, after this suit had been brought, could not divest the jurisdiction of the District Court over the cause.

We find no error.

Judgment affirmed at appellants’ cost.

Rehearing refused.

Levy, J., absent.


text:
    No. 7655.
    Fanny H. Ross vs. Charles Ross, Her Husband.
    The marriage of slaves, with their masters’ consent, though without civil effects during the slavery of either party, yet when ratified hy continued cohabitation of the parties, after * the emancipation of both, produces all civil effects db initio, including the community of acqueta and gains.
    APPEAL from the Fifth District Court for the Parish of Orleans. Rogers, J.

      JP. G. Zaeharie, for Plaintiff and Appellee:
    1. The civil effects of a marriage of slaves, with the consent of their masters, is only dormant during slavery, and when they are emancipated and continue to cohabit as man and wife, all the civil effects attach from the date of the celebration of the marriage. Bishop on Marriage, Secs. 311, 214; O. 0. C. 182; 6 M. 559; Bishop, §§ 159, 160, 161, 162; 25 A. 617 ; 30 A. 1168.
    2. Cohabitation after emancipation is a ratification, and like in all other civil contracts, not prohibited by law omnis ratikdbitio retrotrahitur et 'tnandato cequiparatur. 15 A. 342; Bishop, Sec. 163, and authorities before cited.

      8. JBelilen, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff and defendant, while they were both slaves, were married, with the consent of their owners, in 1842. He subsequently acquired his freedom by consent of his owner. She remained a slave until the abolition of slavery. After they were both free, they continued to live together as man and wife. Subsequently, plaintiff instituted proceedings for divorce against the defendant, and judgment was rendered therein, in her favor, decreeing a divorce, which was signed in July, 1877, and from which no appeal was ever taken.

, The present action is brought by plaintiff to have certain property, held and possessed by defendant, decreed to be property of the community which subsisted between the parties during their marriage, and to have the same partitioned by sale and to have an account of the revenues thereof since the dissolution of the marriage.

From a judgment in favor of plaintiff the defendant prosecutes the present appeal.

The legal issue presented is, whether a marriage of slaves, contracted with the consent of their owners, and ratified by continued cohabitation after their emancipation, produces the ordinary civil effects of. marriage, and whether those civil effects retroact to the date of the original marriage. We think correct principles and our jurisprudence leave no doubt on the question.

The Article 182 of our Civil Code of 1825, in force before the war, provided, “ slaves cannot marry without the consent of their masters, and tlieir marriages do not produce any of the civil effects which result from such contract.”

This imports that slaves could marry with the consent of their masters, and it was long since held by this Court that, after the emancipation of the parties, such a contract of marriage legal and valid by the consent of the master and the moral', assent of .the slave, from .the moment of freedom, although dormant during the slavery, produces all the effects which result from such contract among free persons.” Girod vs. Lewis, 6 M. 559. In a later case, arising after the war, the children born of such a marriage claimed to be legitimate heirs of their parents, although that marriage had been dissolved by the death of one of the parties prior to their emancipation. The Court quoted and approved the above doctrine, but said :

“ We think that the marriage which is to produce these civil results must exist at the time the emancipation takes place. In this case, .the. marriage was dissolved before emancipation. The parties’ rights, therefore, were not dormant; - they were dead; and the subsequent emancipation, as it could not resuscitate the marriage, could produce none of the civil fruits which are the results of a civil marriage.” Pierre vs. Fournette, 25 An. 617.

This indicates the clear opinion of the Court, that bad the marriage continued at the date of emancipation, the children, though born during slavery, would have been legitimate. And so it was directly-decided in a still later case, where the broad doctrine was laid down, that u as to tliosq who were slaves, their own consent and that of tlieir masters were alone sufficient to give t.<? their marriage an undeniable validity, one which produced no effect as long as they were held in bondage, but which, from their emancipation, has.secured for them and their posterity the rights and privileges bestowed by the State on a marriage authorized and sanctioned by its laws.” Succession of Pearce, 30 An. 1168.

From all these cases it results that the civil effects of such marriages were only dormant during slavery, and that emancipation operated not a creation or birth of such rights, but merely an awakening of them.

If the legitimacy of children, which is one of the civil effects of marriage, takes effect after emancipation, we see no reason why the community of acquets and gains, which is another civil effect, should not equally do so ; and if the birth of children during the slavery does not prevent their legitimacy after emancipation, we do not see why-property acquired while one of the parties was a slave should not equally fall into the community which takes effect after freedom.

The wife, even while a slave, no doubt contributed to the common welfare of the marital estate, by the performance of those duties, such as household cares, care of children, etc., which form the consideration of her interest in the connubial partnership. And in this case evidence is not wanting that she contributed her private earnings towards the purchase of her husband’s freedom.

There existed under the civil- law certain impediments to marriage described as being ex eausápotestatis, preventing the intermarriage of persons bearing certain relations to capli other, such as tutor and ward, as to which it was held, that in case of such prohibited marriages, the subsequent voluntary cohabitation of the parties, after the relation which caused the prohibition had ceased, rendered the marriage valid ab initio.'’

So with marriages originally void by reason of fraud, error or violence, cohabitation after restoration of freedom, or discovery of errors or fraud, produced like effect. 1 Bishop on Mar. §§311, 139, 140, 100 et seq.

We think a like principle is applicable here. The impediments to the civil effects of slave marriages validly contracted with- the consent of the masters, were the consequence of their civil status, the artificial creature of the law, and when, by change of laws, such status was altered to one permitting the full civil effects of their'marriage, and the parties thereafter continued to cohabit, such ratification retroacted to the date of the original marriage and entailed all the civil effects ab initio.

Such was the conclusion of the District Judge, and we consider it a sound, humane and equitable solution of the .question.

Judgment affirmed with costs.

Rehearing refused.

Levy, J., absent.


author: Bermudez, C. J.

text:
    No. 7498.
    Mr. and Mrs. J. M. Conte vs. Thos. H. Handy, Sheriff, et al.
    The defendants, an ex-sheiiff and Ms sureties, are not liable for tlie rent of productive real estate, situated in tbe Parish of Orleans, while under seizure, when the same is occupied as owner by the defendant as Ms residence, and where the sheriff has authorized the plaintiff to use Ms name for all useful purposes, and the plaintiff has declined the offer.
    APPEAL from the Fifth District Court for the Parish of Orleans. Bogers, J.

      G. L. Bright, for Plaintiffs and Appellants.

      W. B. Benedict, for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant, an ex-sheriff, and his sureties are sued to be made responsible for the rent of property seized by liim^ which, it is alleged, he should have and has not collected, at the rate of $100 per month.

The defense is, that the property, situated in the Parish of Orleans, was occupied by the defendant in suit, who refused either to pay rent, Or to remove; that the plaintiff was authorized -to take sucli-action in the sheriff’s name as might be necessary and that plaintiff declined to' exercise the power.

There was judgment for the defendants, and the plaintiffs have appealed.

It is undoubtedly the duty of the sheriff, when he seizes productive real estate, to take at the same-time all the rents, issues and revenues which the property may yield. When he neglects to do so efficiently,in a proper case, and the judgment and seizing creditor is injured thereby, the sheriff is bound to repair the damage which he has occasioned by his fault. C. P. 656, 661 ; 6 R. 100; 5 A. 300 ; 30 A. 436; 32 A. 1048.

But the sheriff, it would seem, can be held responsible only where the property is occupied by tenants who are bound to pay rent, or where the property being vacant, or susceptible of being rented, he fails to take proper steps to rent it for a limited time. C. P. 658 ; 5 An. 174.

In the present instance, the property was neither occupied by tenants, nor susceptible of being rented, nor vacant. The defendant was in possession of the property, which was his residence merely, and which, though seized and in legal custody, had not ceased to belong to him. 4 N. S. 317; 11 R. 181; 12 R. 8. He could not be made to pay rent, for he had made no contract to do so with anybody. R. C. C. 2669. A suit against him for rent could not have been maintained. He had a right to occupy this property until after a legal expropriation. He could not have been made, by process of law, to vacate the same before complete divestiture of title of ownership. In any event, in the last case, the sheriff could take no legal steps for his expulsion.

The sheriff, no-doubt, has a right and it is his duty, where'it is physically possible for him to do so, to take actual possession of whatever property he levies his ' writ upon, real or personal, except in the Parishes of Orleans and Jefferson, in which, in cases of seizure of real estate, it is sufficient to register the seizure in the mortgage office. C. P. 762; Act of 1857, No. 189, p. 185; 14 An. 587; 20 An. 573; 28 An. 573; 31 An. 505.

As the law does not appear to make it the duty of a sheriff in those parishes to expel owners in possession of real estate belonging to them, because under seizure, it is difficult to perceive how that officer can be held liable, in this case, for the value of the occupancy or enjoyment of the property in question, which, while under seizure, merely remained sequestered. The sheriff cannot be held responsible for not having done that which the law does not make it his duty to do.

Realizing his inability to collect rent from or eject an owner in actual possession of his property, though seized, the sheriff authorized the use of his name by the plaintiffs for such action as might be necessary, but the plaintiffs declined the offer. If it was thought that the sheriff was recreant to his duty, he might have been ruled and commanded to do it, on a proper showing by the court issuing the process.

It is difficult to conceive what else the sheriff could have done to

subserve the interests confided to him, and shield his own responsibility, already so grave. 6 L. 737; 10 An. 83.

There is no error from the judgment appealed from, which is affirmed with costs.

Rehearing refused.

Levy, J., absent.


text:
    No. 8587.
    State of Louisiana ex rel. Orleans Railroad Company et al. vs. Henry L. Lazarus, Judge.
    The appealable or unappealable character of a controversy is announced, by the pleadings, but is fixed by the judgment. Hence a mandamus lies to compel the granting of a suspensive appeal, when at the time the judgment was rendered the case was appealable. A remittitur subsequently entered, cannot deprive the party cast, of his constitutional right of appeal.
    Application for Mandamus.

      Chas. Tjouque, for the Relator.

      A. J. Murphy and F. W. Baker, for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a. mandamus. The Orleans Railroad Company was sued for ten .thousand dollars damages. After issue joined and trial, the jury rendered a verdict for two thousand dollars. A motion for a new trial having been taken, the plaintiff in the case entered a remütíüir, reducing the claim, verdict and judgment to one thousand dollars. The judgment having been signed, the Company, tendering a bond for three thousand dollars, seasonably applied for a suspensive appeal, which was- refused. lienee^ this proceeding.

The verdict was rendered on the 15th of February; judgment was rendered upon it on the 23d following; the remittitur took place on the 4th of April, 1882.

The appealable or unappealable, character of a suit is announced by the pleadings, but is fixed by the judgment.

It is settled beyond the possibility of a doubt that, although in an appealable case the plaintiff may render the case unappealable by making a remittitur before judgment, still lie cannot do so after judgment. This is no now question. 14 An. 114; 16 An. 430; 21 An. 723 ; 2 How. 73, and authorities in 21 An.

The Relator is entitled to the relief sought.

It is, therefore, ordered, that a peremptory mandamus issue herein, directing the District Judge to grant the suspensive appeal prayed for by the Relator.

Levy, J., absent.


text:
    No. 8551.
    New Orleans & Pacific Railroad Co. vs. Mary J. Robertson.
    The obvious meaning and intent of Section 4 of Act 14 of 1876, the legislative charter of the plaintiff Company, were to secure Shreveport as the northwestern terminus, and to prevent the Company from evading this requirement by building connections to other possible termini, under the name of branches, before completing the line to Shreveport. The Company had the right to begin its route at Baton Rouge, or to build via that point, and the construction of the Baton Rouge branch, while the main liuc was in process of completion, did not violate the spiiit or meaning of the law.
    Our expropriation laws and the summary proceedings therein, are not violative of the present Constitution of the State.
    The route to he pursued by the road is not among the issues submitted to the jury under the expropriation proceedings.
    APPEAL from the Twenty-third Judicial District Court, Parish of West Baton Rouge. Oole, J.

      Kennard, Howe & Prentiss, for Plaintiff and Appellee :
    1. Expropriation proceedings are conducted under a special law, which prescribes exact formalities, and are not to he governed by the general rulesprescribed by Code of Practice. Rev. Stats., Secs. 1479 to 1493.
    2. The Corporation of the New Orleans Pacific Railway was created under the general law, and confirmed and extended by Act of Legislature — right to expropriate not derived from the special act; amply provided for under the general law.
    3. Line to Baton Rouge not a branch line in the legal sense of the term. Under Charter, Company could have commenced originally at Baton Rouge. Charter, Art. 3, Sec, 1, Acts 1876, No. 14. At all events, defendant has no standing in Court to complain, if Company-bad no right to build so-called biaueh road. Possibly State might have complained.
    4. Art. 258, Const. 1879, misconstructed by defendant.
    5. Question as to proper line to be selected is not for jury to decide ; this privilege granted specifically to the Company in Charter, Art. 3, Sec. 1.
    6. Where right of way only is claimed, benefits may offset price of same.
    7. The rulings of the Judge ila quo," ou admissibility of evidence correct — except in regard to fences. He allowed the jury to consider whether fences are necessary. This is an error. There is no law in Louisiana requiring railroads to fence, and until the Legislature requires fencing, no damages can he allowed against Railroad Companies for not fencing.

      Barrow & Pope, for Defendant and Appellant:
    1. The proceedings authorized by Arts. C. 0. 2630 to 2641 to expropriate property, do not authorize summary proceedings. Summary proceedings must be expressly permitted. C. P. Arts. 754, 755; 22 An. 245; 14 An. 390; 32 An. 474. In summary proceedings time is granted to plead and procure evidence. 4 R. p. 59.
    2. When an act of the Legislature creates a corporation, and authorizes it to expropriate lands, this object must be expressed in the title. Const. 1868, Art. 114; Const. 1879, Art. 29.
    3. Where a charter authorizes a railroad to construct such branch railroads “ as a majority of the directors of the company should deem proper, expedient and to the interest of the company,” the company seeking to expropriate lands for a branch, must show “ a resolution of the board authorizing its construction.” This is neither averred or proved.
    4. Where the charter, authorizing the construction of a railroad to Shreveport, La., from New Orleans, as the main line, provides “the main line shall be completed to Shreveport before any branches are constructed,” (it being admitted the main line is not completed) the corporation cannot expropriate land for a branch. The exercise of the power is ultra vires. Field on Corporations, p. 66, Sec. 53; Sec. 248, p. 270; 13 Peters, 519 ; Firemen’s Loan, etc., Co. vs. Carroll, 5 Barb., 613.
    5. The completion of the main line to Shreveport is a condition precedent to the right to undertake a branch road. Hen. Dig., No 2,,p. 1152, B. 3; Bank of Augusta vs. Earle, 13 Peters, 519. The provision is prohibitory and any one can plead it. C. C. 12 ; Stevens vs. Erie R. R. Co., 51 N. J. Eq., 259.
    6. Under the restrictive provisions of the Constitution of 1879, the Legislature cannot delegate to a railroad, a private corporation in which the State has no stock or interest whatever, authority 1 o expropriate private property. The reason for the law having ceased, the law itself ceases. The Const. 1879, Art. 258; Mills on Eminent Domain. § 48; 46 N. Y., 546.
    7. When defendant avers the ronleselected by a railroad through bis lands are “not necessary” for the railroad, but another less injurious to defendant is equally as convenient for the railroad, the pleadings present a question of fact, which should be submitted to the jury. C. C. 700 (696); 32 An. 475.
    8. Only such benefits, prior to the Constitution of 1879, as were peculiar to the lands remaining, after the Company bad taken a part, could be offset against the damages done; but underthe Constitution of 1879, bolh value of the land taken and damages to that remaining must be previously paid. Consequently there can be no offset. It is error to charge, therefore, that benefits which are common to defendant and others'along the road can be offset. 15 An. 482; Const 1879, Arts. 156 and 155.
    9. It is an error to charge the jury that they can substitute their individual knowledge for or against the evidence in an expropriation case. C. C. Arts 2632 2634. The elements of damages claimed are sustained by the following authorities: Winona, etc , R. R. Co. vs. Denman, 10 Miün. 267; Raleigh, etc., R. R. Co. vs. Wicker, 74 N. C. 220; Louisville, etc., R. R. Co. vs. Glazebrook, 1 Brush. 225; Cooley, Const! Lim. p. 566, and note; Somerville and Easton R. R. Co. vs Doughei’ty, 2 Zeb. 495; Mills on Em. Domain, § 166 ; Field on Corporations, Sec. 450 ; R. S. Sec. 1481.
   The opinion of the Court was delivered by

Fenner, J.

The defendant is appellant from the judgment of the Court a qua, rendered on the verdict of a jury of freeholders, expropriating a right of way across her lands for the construction of defendant’s railroad.

Various defenses are urged.

1. It is urged that the property was sought tobe expropriated for the purpose of building a branch road from Baton Rouge to the main trunk-line of the plaintiff’s railway from New Orleans to Shreveport; that said main line had not been completed to Shreveport, and plaintiff’s charter prohibited the construction of any branches, until after the main line liad been completed to Shreveport.

The plaintiff corporation was originally organized under the general laws of the State, with power and authority to construct a railroad, “ beginning at a point on the Mississippi river atNew Orleans, or between New Orleans and Baton Rouge, * * running thence toward and to the city of Shreveport, or the city of Marshall or Dallas, in the State of Texas, in such direction and route or routes as said Company shall fix, and with such connecting branches in the State of Louisiana as may be deemed proper.” It was further authorized to construct branch roads beyond the State of Louisiana, “ to connect their main line with any other line or lines in other States, which shall authorize the exercise of said privilege within their limits.”

In 1876, the Legislature passed Act No. 14 of that year, in which it recited at length the Notarial Charter, and then provided that its “term of existence be so extended as that the said Company, by its name, and under the aforesaid articles of incorporation, shall have perpetual succession.” It further enacted “ that Shreveport, in Louisiana, shall be the northwestern terminus of said New Orleans and Pacific Railway, and that the main line shall be completed to Shreveport before any branches are constructed.”

The obvious purpose of this provision was to secure Shreveport as the northwestern terminus of the road, and to eliminate the option reserved in the original charter of making Marshall or Dallas the terminus, and to prevent the Company from evading this requirement by building connections to Marshall or Dallas, or other possible termini, under the name or pretense of branches, before completing the line to Shreveport. The Company had the right to begin its line at Baton Rouge, or to run it from New Orleans via Baton Rouge ; and when its line to Shreveport passed within a few. miles of Baton Rouge, there was no conceivable violation of the purpose and meaning of the law, in building a connection with that point. This in no manner interfered with Shreveport as the objective terminus. There is no pretense that this connection operated or was intended to operate any evasion of the requirement to make Shreveport the north western terminus.

Moreover, tho prohibition of the law is levelled merely against the construction of any branch before completion of the main line. It is doubtful, if this wonld prevent the necessary antecedent preparations for construction, while the main line was being, in good faith, pushed to completion, such as expropriations, surveys, etc. Of course, the expropriation could be availed of only for purposes of construction, and would amount to nothing until the construction could be lawfully begun. No question of untimely construction is presented in this case.

2. The objections to the title of the Act 14 of 1876, to the summary character of the proceedings and to the constitutionality of our expropriation laws, seem to us without weight.

3. We can discover no authority under our expropriation laws for submitting to the jury the question of the propriety of the route selected. The function of the jury is expressly confined to determining what the value of tho land described in the petition, with its improvements, and what damages, if any, the owner would sustain in addition to the loss of the land by its expropriation ? ” C. C. 2632. This Court has extended that function so as to embrace the quantity of land required and nature of the estate. N. O. P. Railway Co. vs. Gay, 31 An. 430. Same, 32 An. 471.

We are now asked further to extend it, so as to enable the jury to determine the route of the road. This would be going too far. If juries might exercise this function, our railroads might be made as crooked as cow paths.

4. We have examined the charge of the Judge, and find it unobjectionhle.

5. We find no such error in the verdict of the jury on the facts, as to jnstify us in disturbing it.

Judgment affirmed at appellant’s cost.

Levy, J., absent.


text:
    No. 8546.
    Succession of Frank Lenel. Opposition of Joseph Gazin.
    A party holding the builder’s privilege, duly recorded, does not lose the benefit of such privilege,-where the property has been subsequently mortgiged, and after the death of tho privilege and mortgage debtor, has b -en sold without a separate appraisiuent of the , land and building, before the sale.
    Such appraisement» maybe made after the sale, and the privilege creditor is entitled tobe paid out of such sale in preference to the mortgage creditor.
    APPEAL from the Eighteenth Judicial District Court, Parish of Si. Tammany. Thompson, J.

      John Wadsworth, for Administrator, Appellee.

      TJllis & jEllis, same side, for Miehaelis, Mortgagee :
    Where A lias a special mortgage on 220 acres of land and the buildings and improvements thereon, and B has a privilege on the buildings, as builder and furnisher, and a sale is made of the land and buildings as a whole, without separate appraisement, and the proceeds are not sufficient to pay both, B loses his pv.viiege, and the mortgage creditor will take the proceeds. 32 An. 1033; 28 An. 289; Kolm vs. McIIatton, 20 An. 486.

      James Lingan, for Gazin, Appellant:
    1. Privileges exist only by virtue of express statute; but, once existing, are ouly forfeited in the manner expressly provided by law, aud cannot be destroyed by implication. Bov. C. C. 3186, 3249,3267. See C. C , How Privileges are Destroyed. *
    2. There can never be any conflict of rank between privileges and mortgages. If a privilege exists, being in its nature higher, it primes all mortgages. B. C. C. 3186, 3187; Jacob vs. Preston, 30 An. 318; 11 An. 4S2; 31 An. 5L8; 32 An. 580, 380; 31 An. 698, 702; 21 An. 385.
    3. There is no statute law that requires a separate appraismeut prior to sale, of the buildings and ground, except in case the vendor of lands is opposed by a builder’s privilege; (B. C. C. 3268,) aud where the evidence enables the Court to fairly ascertain the proportionate amount of the proceeds of sale due to the buildings and improvements, and what the amount of the relative value of the land, the distribution will be made accordingly; otherwise, the case will be remanded to ascertain the proportionate and separate value of the land and the improvements.
   The opinion of the Court was delivered by

Todd, J.

This case presents a contest between a privilege creditor, claiming the builder’s privilege, and a creditor by special mortgage of an insolvent succession, over the proceeds of the sale of certain immov-. able property sold at probate sale.

The contract, under which the privilege is claimed, was for the building of the “Long- Branch Hotel,” near the Abita Springs, in the Parish of St. Tammany.

This contract was recorded 011 the 13th of April, 1880.

The mortgage referred to was recorded on the 26fch of May, 1880.

The property was sold on the 20th of November thereafter, and bought in by the morigage creditor. After the sale,-the administrator filed an account and-tableau, in -which the builder’s claim and privilege were not recognized, and the, proceeds of the sale of the hotel building and the tract of land in which it was situated, were applied, after payiug some general privileges, to the payment of the special mortgage referred to.

The account was opposed by Gazin, the contractor for the building of the hotel, who claimed -to be paid in preference to Miehaelis, the mortgage creditor, and who appeals from the judgment rejecting his privilege, and placing him on the tableau as an ordinary creditor.

The privilege claimed is resisted mainly on the ground, that the property, land and building was sold in block, and without any-separate appraisement having been applied for or made before the sale; the only other ground, of opposition being that some of the items of the debt did not come within the terms and stipulations of the recorded contract, and hence never imported a privilege protected by the registry of that contract..

There is no doubt that there is a seeming conflict in the decisions of this Court upon this question, that is, as to the necessity of a separate appraisement of the land and buildings before the sale is made, to entitle the claimant of a builder’s privilege to its recognition and enforcement against the proceeds of the sale.

The Articles of the Code upon this subject, and bearing on the point in controversy, are the following:

Article 3249 declares the privileges upon immovables to be:

1. In favor of the vendor of the same.

2. In favor of “ architects, undertakers, bricklayers, painters, master builders, contractors, sub-contractors, journeymen, laborers, cartmen, and other workmen ” employed to construct or rebuild houses, etc.

3. In favor of the furnishers of materials for the construction and repair of buildings, etc.

This Article further provides, that the privilege granted the parties named in the two last paragraphs, shall take effect on the building or other work, and upon the lot, not to exceed one acre, on which such building or other work is erected.

Art. 3267 provides : That the privilege in favor of the builder or the furnishers of materials and workmen, shall be paid from the price of the building, or other work, in preference to all other privileges, except for affixing seals, making inventories, and the necessary expenses of procuring the sale of the property.

A privilege, the Code defines to be, “ a right which the nature of the debt gives to the creditor, and which entitles him to be preferred before other creditors, even those who have mortgages.” C. C. 3186.

“A privilege precedes all mortgages.” 31 An. 318; 32 An. 580.

The only Article of the Code which refers to a separate appraisement of immovable property subject to different or conflicting privileges, is 3268, which is in these words:

When the vendor of lands finds himself opposed by workmen seeking payment for a house or other work erected on the land, a separate appraisement is made of the ground and the house, the vendor is paid to the amount of the appraisement on the land, and the other to the amount of the appraisement of the building.”

It is to be noted that this Article provides for a case of conflicting privileges between the vendor of an immovable, and the'workman or builder who constructs a house or other improvement thereon, and does not express when the separate appraisement mentioned is to be raade, whether before or after the sale of the immovable, audit is to be noted, also, that in the case before us, the- contest is not between creditors holding different privileges, but between a creditor with a' recorded privilege and a creditor holding a special mortgage recorded several weeks afterwards.

The provision contained in this last Article is not a modern provision, originating only with reference to the system of privileges established by the Code, but is merely declaratory of an ancient principle or rule which we find treated of in Domat, (from whom we quote) thus:

“It often happens that many things having been sold by the lump, together, for one sum, without distinguishing the price of each, it becomes necessary afterwards, to know the price of each particular; and to regulate how much every one of the things may be worth upon the foot of the price that was given for the whole. And this way of making an estimate is what is called ventilation. Thus, for example, if one of several lands that were sold for one price (un seul prix) happens to be subject to a fine of alienation, it is by ventilation that this fine is regulated. And it would be the same thing if it were necessary to make a particular estimate of a portion of a house or other estate.” Domat, Cushing Ed., Vol. 1, 252.

This language, so far from supporting the proposition that a sale of property encumbered with a privilege and mortgage, in the absence of a separate appraisement before the. sale, destroys the right of the privilege creditor to any claim on the proceeds of the sale, conveys by strong implication, if not expressly, that no action is required to be taken by such creditor, in asserting his privilege, till after the sale is made.

From a close examination of all the Articles of the Code bearing on this subject, we are satisfied that there is no legal requirement compelling a privilege creditor to procure a separate appraisement before the sale of the particular immovable subject to his privilege to protect his right to the same, as against a creditor holding a mortgage on the property. This idea, we apprehend, has resulted from applying Art. 3328 of the, Code to immovables, when, in fact, it applies exclusively to movables, as will be seen from its language, which is as follows:

“ But if lie (the vendor) allows the things to be sold confusedly with a mass of other things belonging to the purchaser, without making his claim known, he shall lose the privilege, because it will not be possible, in such a case, to ascertain what price they brought.”

This Article is found under the title “ Of the Privilege of the Vendor of Movable Effects,” and evidently was intended to apply to a case where it was impossible to distinguish the proportion of the price, attributable to things subject to the vendor’s privilege, when they had become- mixed with other personal effects of the purchaser and sold confusedly with them. Thus, it will he seen the Article does not retinto a sale together of land and buildings thereon, subject to conflictin g incumbrances, for the relative values of these particular kinds of property can be ascertained as well after as before the ■ sale, and there is no reason to extend the principle to immovables.

This view of the subject is sustained by the earlier decisions of this Court.

In the cases of Andry vs. Guyol, 13 L. 8; Diggs vs. Green, 15 L. 417: Succession of Evard, 6 R. 335, cases very similar to the instant case, where the property was sold without a-prior separate appraisement; the privilege was allowed on the proceeds, and the-claim, therefore, only asserted after the sale. See also, 6 M. N. S. 114; 16 L. 591; 1 R. 173; 20 An. 452. We think these decisions are correct expositions of tlie law on the subject., and at the same time are in entire consonance with justice. In the instant case, the land on which the building stands, is estimated to be worth only from $2.50 to $3 per acre, and almost the entire value of the property subject to the mortgage was given to it by the improvements put thereon by the labor and materials and workmanship of the opponent claiming the privilege; yet the mortgage creditor received the proceeds of its sale, under the judgment of the Court below, to the entire exclusion of the former, whose claim for a privilege was rejected, and who was put down on the tableau as a mere ordinary creditor. Such injustice is notsanctioned either by the letter or spirit of the law.

We are referred to the cases of Kohn vs. McHatton, 20 An. 486; Hoy vs. Peterman, 28 An. 289; Succession of Cox, 32 An. 1035. In every one of these cases it appears that the contract under which the privilege was claimed had not been recorded, and the decisions mainly, turned on this point, and in the last mentioned case, no appraisement was made before or after the sale, and what was said in any of these, touching a separate appraisement before the sale, to entitle the creditor to enforce his privilege, cannot he regarded as authority on the question at issue.

The evidence shows that the fund realized from the sale of the property subject to the privilege of opponent, is enough to satisfy his claim, and establishes, with sufficient certainty, the proportionate value, respectively, of the laud and the improvements thereon, so as to dispense with the necessity of remanding the case for the purpose of procuring a formal appraisement by experts. We do not think that the item in the account of opponent, for extra work of building a cistern is covered by the recorded contract, and the amount thereof, $52, cannot be allowed as a privilege.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be amended, by recognizing the claim of opponent, Joseph Gazin, to the amount of five hundred and thirty-six dollars and fifty cents, and interest, as set forth in the judgment, as a privilege debt of the succession of Frank Lenel, deceased, and that it be paid by preference out of the proceeds of the sale of the property known as the Long Branch Hotel, to all other claims, except of the costs of affixing the seals, making the inventory, and the expenses necessarily incurred in effecting the sale of the property, and the account of the administration be amended and corrected accordingly; and the judgment, as thus amended, be affirmed, the cost of this appeal to be paid by the succession.

Rehearing refused.


text:
    No. 7665.
    Pierre Morere vs. T. L. Preston, Administrator of the Succession of C. C. Porter.
    An order of sale made at the instance of the administrator of the succession of a deceased ’ husband will not be revoked, when an order of seizure and sale was previously issued and executed against tbe widowin her individual capacity as owner of the property.
    The subsequent making of the heirs of the deceased parties without obtaining an order of seizure and sale and effecting an actual or constructive seizure, previous to the rendition, of the order of sale in the mortuary proceedings, will not divest of jurisdiction the couit which gave that order.
    APPEAL from the Second District Court for the Parish of Orleans. Tissot, J.
    6?. Duplantier, for Plaintiff and Appellee :
    When the sheriff has levied a writ of seizure and sale issued by a court of general jurisdiction, his possession of the property is that of the law, and no other tribunal has the jurisdictional power to deprive him of his custody. C. P. Arts. 656, 662, 762; Winn vs. IClgee, 6 B. 100; State vs. Judge 5th Dist. Court, 15 An. 34; Twity vs. Clarke, 14 An. 503; State ex rel. Thompson vs. Judge, 6 An. 548.
    Every court has exclusive control over its own process, so that a court having probate jurisdiction is powerless to inquire into the validity of the order of seizure and sale issued by a court of general jurisdiction, upon the averments of an administrator that the property seized belong* to the succession under his administration. Mock vs. Kennedy, 11 An. 525.
    An order for the probate sale of property in the custody of the sheriff under a writ of seizure and sale previously issued by a court of general jurisdiction, cannot he lawfully carried into execution and must he quashed. The remedy of the succession claiming the property is by intervention and third opposition in the proceedings via executiva. Oger vs. D’Aunoy, 7 B. S. 658; Clement vs. Oakey, 2 B. 90; Minot vs. U. S. Bank, 9 B. 490; Bochereauvs. Bobb, Adm. 27 An. 657; Guilbeauvs. Wiltz, 26 An. 601.

      The averments in a petition that the petitioner is a mortgage creditor of the party decedent may perhaps be construed into an implied judicial admission that the property burdened with the mortgage belongs to the deceased. But the bare statement in the petition that the petitioner is a creditor of the deceased, coupled with the allegation that the claim is secured by mortgage bn a designated piece of property, without the slightest reference to the ownership of the property, cannot ho construed as implying the above judicial admission. For it may be quite true that the property subject to the mortgage belongs to another party, non constat the fact that the claim resting upon it may be a personal debt of the deceased.

      Merrick & Foster, for Defendant and Appellant:
    A party who is not in possession of an act importing a confession of judgment, and has no actual seizure of property belonging to a succession, under executory process, cannot enjoin the administrator of tbo estate from selling the real estate to pay debts, nor cause the order to be rescinded by the Court. His remedy is via ordinaria. 32 An. 542; 15 An. 636, 637; 25 An. 154; 1 An. 173.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an injunction to arrest an order of sale made in the succession of Porter, and to have it annulled.

From a judgment in favor of plaintiff, the succession has appealed.

The order was rendered on the 31st of May, 1878.

The nullity is claimed on the ground: that it issued for the sale of property in custodia legis for years previous.

The record shows thaton May, 1874, the plaintiff instituted executory proceedings against widow Porter, for the payment of a mortgage note of $1,500, which she had subscribed and secured by mortgage, in January, 1871, on property which she had acquired in her own name in 1803, during the life of her husband; that she enjoined the sale, on the ground that the property belonged to her individually; that the debt claimed had been created and secured by her for the benefit of her husband, and that she was not bound therefor. Her injunction culminated in a judgment against her. The writ being about to be proceeded with, she obtained another injunction, which was maintained by the lower court, but dissolved on appeal.

Tlie seizure had been recorded on May 27th, 1874, under the Act of 1857, the registry amounting to an actual taking of possession.

Considering that it had been judicially established that the property did not belong to Mrs. Porter, but to the succession of her husband, the seizing creditor thought it advisable, in March, 1878, to make his heirs parties, three of whom were of age, and four minors. One of the first was absent, and the latter were represented by their mother, confirmed as tutrix, on February 5th, 1875. The absent heir was represented by a curator ad hoc appointed to him on April 22d, 1878.

It does not appear that any now order for executory process or seizure was made and recorded after the heirs had been made parties.

The making of the heirs parties in 1878 to a proceeding brought in 1874 against one who at the time represented neither the succession nor the heirs, could not and did not give validity to the seizure effected by the registry, which was an absolute nullity.

The consequence is, that as to the creditors of C. C. Porter, represented by the administrator of his succession, the property ordered to be sold was not in custodia legis, and that the Probate Court having acquired jurisdiction over it before any seizure had been effected, the order of sale, was properly rendered. 15 An. 636.

The injunction was illegally granted and should be dissolved.

It is, therefore, ordered and decreed, that the judgment appealed from be annulled and reversed, and it is now ordered, adjudged and decreed, that the injunction herein issued be dissolved, and the prayer therein rejected, reserving the rights of the succession, if any, to damages, by recourse on the bond against principal and surety, and it is further ordered, that plaintiff and appellee pay costs in both Courts.

Levy, J., absent.