author: Fenner.. J.

text:
    No. 1,193.
    J. M. Colvin vs. W. E. Woodward.
    Where a devolutive appeal is taken from an alternative judgment which directs the defendant to do a certain tiling within a fixed delay, and in default thereof, inflicts a more onerous penalty, execution of the first alternative under protest, and with reservation of rights of appeal, is not such voluntary acquiescence as destroys the appeal.
    The Homestead right cannot be contractually waived, renounced or destroyed, otherwise than by sale or its equivalent, and, finding that in this case the defendant has not sold or alienated his homestead, his claim for its protection must be sustained.
    PPEAL from the Third District Court, Parish of Lincoln. Young, J.

      Patterson dt Dormon and BamH JBarlcsdale for Plaintiff and Appellee :
    Where act of sale and counter letter both concur in asserting that it is a sale, the latter containing the agreement that the vendor may redeem within a given time, it must be held to he a sale with the right of redemption, and if the right is not exercised within the time agreed on, the vendor can not exercise it afterwards, and the purchaser becomes irrevocably possessed of the thing sold. C. C. 2570. 38 Aim. 271.
    Act of sale and counter letter, though not designed by the parties to be absolutely final, the title to he put hack in vendor’s name as soon as the conditions of their execution are complied with, does not establish a simulation but a real transaction by which title passes. 38 Ann. 482j 39 Ann. 488.
    Where any one of the conditions required by Article 222 Constitution ceases to exist, the right to the homestead mustfall. Dennis vs. Gayle, et al, 39 Ann. reported in Southern Reporter, page 6.

      Graham & Doldstead, for Defendant and Appellant:
    Supreme Court has appellate jurisdiction in all cases where homestead rights are involved Amendment of Article 81 of Constitution.
    An appeal is a Constitutional right, and the “ act should be unequivocal to authoriz e a pre sumption of the abandonment of so important a right. 1. La. 296, 24 Ann. 485, 29 Ann. 762, £62.

      Htfo mortgage nor promise to soil land legally set apart as a homestead can be enforced, and no court baa jurisdiction to compel compliance. Constitution — Articles 210, 220, 221 and 222.
    Where an agreement for the sale of immovable property lias fora basis a giving in payment, such agreement can have no effect unaccompanied by actual delivery. C. C. 2656.
    Where leision exists in an agreement for the Hale of real estate it cannot be enforced. C. C* 3860,1861.
    Parol is not admissible to prove a piomi.se to sell immovable property. O.O. 2275, 2276.
   The opiriion of the Court was delivered by

Fenner.. J.

This action is brought to enforce specific performance of the following written contract signed by defendant:

“I hereby agree to carry J. M. Colvin one bale of cotton, and make a deed to him of forty acres of my land, and he make a deed to me for the laud I deeded him, and which is now on record in his name, this October 5, 1886.”

The defense is that the land referred to in the instrument, is part-of his duly recorded Homestead, and that, under the Constitution of the State, the court is^without jurisdiction or authority to compel him to execute the agreement so far as said land is concerned.

The court d, qua gave judgment in favor of plaintiff, ordering defendant, within thirty days from its date, to execute a deed conveying to plaintiff forty acres out of the one hundred and sixty acre tract claimed as his Homestead, and in default thereof, that plaintiff "have the right of selecting from the above described land, such forty acres as he may desire, and, upon filing such selection in the office of the clerk of court, and having same duly recorded in the book of Conveyances, he he decreed the absolute owner, and be put in possession of same.”

Defendant forthwith applied for and obtained a devolutive appeal to the Circuit Court, which dismissed it (so far as the land is concerned) on the ground that it involved the Homestead right, which is within the exclusive appellate jurisdiction of this Court. Defendant then took out his present devolutive appeal to our Court. Before the lapse of the thirty days allowed in the judgment of the District Court, defendant executed a deed to plaintiff of forty acres of land, selected by himself, reciting, however, in the deed, that he had taken and intended to prosecute a devolutive appeal from 'the judgment, and reserved all his rights of appeal, and that he so acted because he was unable to take a suspensive appeal, and because, on his failure to do so, plaintiff would execute his judgment by selecting the most valuable forty acres, containing the dwelling, etc., of himself and family, and oust them from the possession thereof.

Motion to Dismiss.

This motion is based on two grounds:

1st. That the case involves no right to Homestead, because the contract sued on is a sale of part of the Homestead, which is expressly permitted by the Constitution.

2d. That the defendant has acquiesced in the judgment by the voluntary execution thereof.

So far as the iirst ground is concerned, it clearly goes to the merits of the case, and involves the very question to be decided by us as to the validity of the Homestead right set up by defendant.

The second ground we consider untenable.

The Code of Practice denies the right of appeal to a party when he has acquiesced in the judgment by executing it voluntarily. Article 567.

Here was an alternative judgment, under the terms of which defendant was bouud, within thirty days, to convey to plaintiff forty acres of his homestead tract selected by himself, or, on his failure so to do, giving plaintiff the absolute right to select the land on which the dwelling-house of his family was situated, and to turn them out and take possession.

Being unable to appeal suspeusively, what was defendant to do?

The alternative presented to him was very similar to that discussed in a former case, where the Court said t “The, defendant, has to satisfy the judgment, or go to jail. There, is not here the acquiescence which the law contemplates. It must be the voluntary act of the debtor.”

State ex rel. Hoey vs. Brown, 29 Ann. 862.

Here the defendant had to select and convey the land or have himself and family turned out of house and home. .

In another case, where payment was made under threat to seize and sell a merchant’s stock in trade, this was held not to be such voluntary execution as debarred appeal. Johnson vs. Clark, 29 Ann., 762,

Tn a case yet more similar to the instant one, the judgment condemned defendant to deliver 6000 pounds of cotton, or in default thereof to pay $3120. Execution having issued, defendant delivered the cotton, which cost him only $1920, in order to avoid a seizure for the larger alternative sum named in the judgment, and this was held to be not a voluntary settlement, but one made “under compulsion of the law,” and not debarring a devolutive appeal. Yale vs. Howard, 24 Ann. 458.

It is true that in the above case execution had been issued; but here execution was not necessary to expose the defendant to the danger and damage which he sought to avert; because, under the terms of the judgment, by the mere lapse of thirty days, his right to select the forty acres to be delivered expired and plaintiff acquired the absolute right to make his own selection, which defendant would, thereafter, have been powerless to prevent.

For these reasons the motion to dismiss the appeal is denied.

On the Merits.

Plaintiff denies that defendant is entitled to any protection under the homestead law, on two grounds, which we will consider successively.

1. He claims that defendant’s recorded Homestead claim had been lost by virtue of a prior sale which he had made to hinx of this entire property. It appears that in 1886, defendant being indebted to plaintiff in the sum of $79 39, executed a deed to the latter of his whole Homestead tract of 160 acres. It is stated among the allegations of plaintiff’s own petition that this conveyance was executed in order to secure unto him the full and punctual payment of said sum,” and that he gave to defendant a counter letter stating that said deed was made for the purpose of securing to petitioner the payment of the said sum of $79 39, and agreeing that if said sunx was paid by 1st of November, 1886, he would reconvey said land to defendant.”

Neither the deed nor the counter letter appear in the record, but the foregoing statement of their contents conclusively stamps the transaction, which was unaccompanied by any delivery, as merely hypothecary or pignorative in its character, and neither intended nor operating as a divestiture of plaintiff’s title. The amount due was subsequently paid by defendant and the transaction was cancelled by a return to each other of the deed and the counter letter, though plaintiff never executed a formal reconveyance of the land, which he is ordered to do by the present judgment. We are satisfied this transaction never transferred the ownership or destroyed defendant’s homestead right.

2. It is claimed that the contract now sought to be enfoiced is itself enforceable as a sale or promise to sell a part of the homestead, which is valid under Article 222 of the Constitution, which, after prohibiting mortgages or waiver of homestead rights, declares that the right to sell any property which shall be recorded as a homestead shall be preserved.”

The defendant undoubtedly has the right to selL — but has he sold 9

It is too self-evident to require comment that the instrument copied in the beginning of this opinion is not a sale. It is simply an executory promise to convey.

Article 220 of the Constitution declares: No court or ministerial officer of this State shall have jurisdiction or authority to enforce any judgment, execution or decree, against the property set apart as a homestead.”

This decree is obviously one to be enforced against the homestead property, in satisfaction of a right claimed which is not within any of the exceptions to the prohibition. No court has authority to render or enforce any such decree.

This defendant has his homestead rights in this property, which he cannot validly waive or renounce, or contractually destroy, otherwise than by sale or its equivalent, and he has not sold or alienated the property. He asserts those rights and we are bound to protect them. It is not necessary, nor do we mean, to determine whether any alienation of the homestead other than by sale would be valid.' Here there was no alienation.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from, in so far as it orders defeudant to convey to plaintiff any portion of his homestead tract, or recognizes the right of plaintiff to claim or take any portion thereof, be and the same is annulled, avoided and reversed, and the demand of plaintiff to that effect is rejected, without prejudice to any other portions of said judgment which are not within our jurisdiction, plaintiff and appellee to pay costs of this appeal.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 1195.
    John Chaffe & Sons vs. Mrs. Mary F. Whitfield.
    A note secured by mortgage, issued by a planter to fclie order of bis merchant, to make good all advances for the working of a plantation, although received as “collateral security,n may be sued on, directly by the latter, for the exact amount of the advances, — as a pledgee could do.
    In the absence of proof of want of consideration, and in the presenoe of evidence showing that the advances have been made, payment of the note may be enforced by the seizure and sale of the mortgaged property.
    APPEAL from the Twenty-seventh District Court, Parish of Rich-land. Williams, J.

      Montgomery & Bhymes, and A. L. Slack, for Plaintiffs and Appellees.

      BoHs & Hudson for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action via ordinaria to enforce the payment of a note of $3,000, secured by mortgage.

The defence is, “that the note was given as collateral security for an account of supplies and cannot be enforced, being without consideration except for the amount due upon the principal debt, that for supplies; and that, as nothing was due on that account, the note cannot be enfoiced.”

From a judgment in favor of the plaintiff's, the defendant appeals.

It appears that the defendant, who is a widow, applied in 1880 to the plaintiffs for an advance of supplies for her plantation.

To this the plaintiffs assented, on condition that she would execute a note for $3,000, secured on her plantation, saying that they would hold it as collateral security for her indebtedness.

The note was drawn and the mortgage given. On receiving the. note, the plaintiffs passed the amount to the defendant’s credit, charging her with all advances of whatever nature made by them to her, and sending her regular accounts of their relations, as merchants and planters, until the amount was absorbed.

It appears by an indorsement on the note, signed by the plaintiffs and by the defendant, that all interest was paid on the note up to January 17, 1884.

We have carefully weighed the testimony adduced by the plaintiffs and that given by the defendant, and remain satisfied that the advances alleged to have been made during a course of years, have been received, and that the defense of want of consideration set up is utterly groundless.

In her testimony, the defendant admits advances, although she does not specify the amount, and shows that out of the moneys received by her, she bought mules for more than $1,000.

The defendant can derive no comfort or relief from the circumstance that the plaintiffs had agreed to hold the note as “collateral security.'

The. intention of the parties was clearly that the plaintiffs would furnish the supplies on a mortgage security given them by the. defendant, and that in case of non-payment for those, advances, the plaintiffs would have the right to enforce the note and mortgage. This is apparent, from the circumstance ihat the note is made payable to the order of the plaintiffs and that the mortgage given to secure the note is executed in their favor.

The right of the plaintiffs to sue directly on the note for the amount of the advances really made is undeniable (R. C. C. 3292); and may well be assimilated to Hie riglit of the pledgee of a note, suing oil the note pledged, to recover the amount due and which the pledge was designed to secure. R. C. C. 3170.

The judgment of the lower court has done justice between the parties and should not be disturbed.

Judgment affirmed.


author: Watkins, J.

text:
    No. 1202.
    Parish Board of School Directors vs. Wm. H. Edrington.
    One who purchases at an execution sale the right, title and interest of the defendant in execution, acquires only such title as the latter had.
    If amongst the property sold there is a lot, which the expropriated owner was possessed as a lessee, the adjudicate© would take as such, and be substituted as lessee in his place pro tanto.

    Prescription acqui rendí causa cannot be acquired under a title resulting from a lease.
    Prior to the passage of the Act of the 3d of April, 1853, notarial titles were not required to be filed and registered in the book of conveyances in the recorder’s office.
    The right of a proprietor of real property evidenced by the registry of a conveyance thereof in the proper book, and the proper oflice, in the parish in which it is situated at the time, is not affected by tbe incorporation of it into a new parish, and no additional registry in the new parish is necessary in order to preserve its effect.
    APPEAL from Hie Eighth District Court, Parish of Maclison. Delomj, J.

      A. L. Slaolc for Plaintiff and Appellee :
    1. The following articles of the R. C. C. are in point: 3441, 3442, 3445, 3446, 3487, 3488, 3489, 3490, 3556 Ho. 25.
    2. Prescription only attaches to a right when it can he exercised. 2 H. D. 1227, Ho. 2^ Plaintiff’s right to reclaim the land never arose until after the lease expired in 1886. consequently this right could only, and never before, he judicially enforced when the right arose or the demand was duo. C. P. 1.
    3. Ho one can he debarred by prescription from the exercise of any right to be computed from a time at which the right did not exist. 38 Ann. 529, Cochran vs. Yiolett; 36 Ann. 412; 32 Ann. 1041.
    4. The heirs of a deceased person are seized of his succession at the very instant of his death, and the right of possession that the deceased bad continue in them, with all its defects and advantages; the change in the proprietor producing no change in the nature of his possession. Castle vs. t loyd, 38 Ann. 587.
    5. Mrs. Edrington acquired hy sheriff’s sale no greater rights than her husband had to Sec. 6, This rule that a purchaser acquires no more than his vendor’s rights, is applicable to all class of sales. 4 L. 120; 10 R. 357: 2 Ann. 143; 4 Aim. 52; 4 Ann. 104; 5 Ann. 67. And a vendee of property sold under a fi. fa. acquires no right which did not belong to the debtor. 8 H. S. 336; R. C. C. 2620; C. P- 690, 691. The purchaser at sheriff’s sale buys the title, such as it is. 9 R. 206, Puller vs. Harman. All Mrs.- E. could acquire was her husband’s interest in this lease, for that was all he owned. See Mareade on Prescription, pp. 95-106.
    6. The plaintiff was no party to Mrs. E.’s suit against lior husband. R. 127. She only acquired such right as her husband had, and as that was only a right to an unexpired lease, plaintiff could not interfere until a cause of action arose at the termination of the lease.
    7. A party cannot change the origin and nature of his possession. 2 H. D, 1194, and cases.
    8. A lessee’s possession is the lessor’s, whose title the former cannot dispute. The tenant, having entered as such, cannot change the character of his possession by possessing for himself under a subsequent title. 1 EL D, 800, No. 6; 2 EL D. 1194, No. 7; 2K.D.1204 No. 25. See also, 14 Ann. S14, Calmes vs. Duplantier; 14 Ann. 280, Jackson vs. Jones; 30 Ann. 591.
    The case of Jackson vs. Jones was a school board case, similar in many respects to the present case, and one jn which a prescriptive title to a school section under a lease was pleaded and overruled.
    9. A party cannot controvert the title of one under whom he claims. 1 N. S. 577; 4 N. S. 402; 4 Ann. 249.
    10. Neither party can attack the title of their common author. 2 L. 213; 8 L. 269; 1B. 3695 5 Ann. 677.
    11. Tenants, whilst retaining possession, cannot deny the title of their landlord, nor sot up a title against him acquired during the tenantcy. 95 IT. S, 444; 3 Peters, 43; 6 Peters’ 369; 92 IT. S. 107; Bector vs, Gibbons, 111 U. S, 276. See also, Gerault vs. Zunts, 15 Ann. 684; Johnson vs. Dunbar, 26 Ann. 189; Jackson vs. Jones, 14 Ann. 230.
    12. The sale of the property of another is a nullity. B. C. C. 2452 ; 3 Aim. 326; 1 Ann, 284 ; 4 Ann. 458; 16 Ann. 251; 27 Ann. 489.
    13. The maxim, “contra non valentem,” etc., applies. It is sanctioned by our jurisprudence. 36 Ann, 409; 32 Ann. 1041.
    14. One must bold the thing in fact and in right as owner. B. C. C. 3487. A title defective in form cannot bo the basis of prescription. 38 Ann. 885.

      Stone & Mwrplty for Defendant and Appellant:
    In a petitory action, plaintiff must rely upon the strength of his own title. The unauthorized and unsigned entry upon a tract hook of the words “selected for schools ” opposite the number of a section, is no evidenco of title. The objection that this was not the best evidence of the fact sought to be established, and was irrelevant, should have been sus tained and this evidence excluded. Being admitted, it proves nothing, except the fact itself, that these two words are there written. Bros vs. Louriere et al., 37 Ann. 736; 9 Ann. 281; 12 Aim. 177.
    The School Board is not sovereign on its rights of property; prescrixrtion runs against every one except the State and United States. 12 Ann. 151. Therefore, if title ever was in the School Board, defendant can plead prescription in bar of plaintiffs’ action.
    When the sheriff conveys all the right, title and interest of defendant in execution, he conveys the property itself. 13 Ann. 335.
    The rule, contra non valentem agere non curritprescrvptio, cannot he invoked in favor of plaintiff where defendant pleads prescription acquirendi causa. [Reynolds vs. Batson, 11 Ann. 729.
    A purchaser from a lessee may prescribe for the ownership. C. C. 3513; 14 Ann. 230.
    A purchaser in good faith prescribes in ten years, no matter how defective the title of his vendee. C. O. 3451; 3484 ; 38 Ann. 211. A possessor cannot he deprived of the right of pleading prescription; because by inquiry and careful examination he might discover that his vendor had no title. 38 Ann. 885.
    A purchaser at a judicial sale, without notice of defects, is in good faith and can prescribe. 38 Ann. 770.
   The opinion of the Court was delivered by

Watkins, J.

In this, a petitory action, the Parish Board of School Directors sue for the recovery of about one hundred and sixty acres of valuable land, known as section six, of township eighteen north, of range fourteen east.

The averment is that it belongs to petitioner, “ said tract having been designated under the Act of Congress of the United States as school lands, and is so specified on the abstract book of entries of said parish, made by the register of lauds,” and that same is located on what is familiarly known as “ Terrapin Neck,” and embraced in a plantation which is cultivated by the defendant, who resides in the State of Mississippi.

The further averment is that, on the 5th of July, 1836, this land was leased by the Trustees of the Public School Funds for ward one, of the then parish of Carroll, wherein the same was situated, to H. P. M'orancy, for a term of fifty years; and that the present defendant acquired by mesne conveyances from Morancy.

That this title of defendant was vicious and defective, and on which no right by prescription could be founded; and that he was a mere naked trespasser, without color of right as owner.

The prayer is that the directors be recognized as owner, and placed in possession.

The defense is substantially

JPirst. That plaintiff has not disclosed title in itself.

Second. Prescription of ten years.

I.

The following are the salient facts of the case, viz:

On the 5th of January, 1837, the school trustees of ward one of Carroll parish, in pursuance’ of an act of the Legislature relating to the disposition of school lands therein situated, entered into a notarial act authenticating a lease which had been made on the 18th of July 1835, at public auction, and whereof H. P. Morancy became the lessee, for a term of fifty years, of the land involved in this suit. This act was duly recorded on the second of February following.

On the 16th of June, 1845, Morancy conveyed by notarial act to William H. Edrington, the father of the defendant, a large tract of land, embracing the property in suit. This act contains the following recital, viz:

“It is understood that the said Morancy does not sell lot number six to the said Edrington in fee simple, nor warrant the title to the same, but simply transfers to said Edrington all the right, title and interest only that he acquired to a lease for fifty years, dating from the year 1837 or 1836.”

This deed was recorded in the notary’s book of notarial records, on the 1st of August, 1845, in the parish of Carroll.

An abstract of all the lands which had been sold or located within the limits of the parish of Madison was made, and duly certified by the register of the land office at Monroe, La., on the 19th of April, 1852, from which it appears that the land in dispute is entered and designated, in the column of “purchasers’ names,” as having been “selected for schools.”

This abstract is found in the original “Abstract of Sales” book, on file in the office of the recorder of that parish. It is an exemplification of the records of the United States Land Office.

On the 4th of April, 1868, the sheriff of the parish of Madison, under an execution issued under a judgment in the suit entitled Eliza M. Edrington vs. W. EL Edrington, her husband, No. 446, passed a title to the plaintiff in the writ, for the said plantation which the defendant in execution-had acquired, as above recited, from Morancy.

This deed, in terms, conveyed to the purchaser, her heirs and assigns, “all the right, title and interest of the said William H. Edrington.” .only, in said property. This deed was duly and seasonably recorded.

Mis. Eliza M. Edrington died a few years subsequently, possessed of this title, and the defendant and his brother, as the only heirs, accepted her succession unconditionally. The defendant afterwards acquired his brother’s interest. His title was, a few years later, expropriated for delinquent taxes, but it was redeemed.

IL

In our opinion the effect of the execution sale to Mrs. Eliza M. Edrington was to convey to her just the. same title that her husband, W. H. Edrington, possessed; and it was a fee simple to all the plantation, except section six, and only Ins rights of lease to that for the remainder of the fifty years. That deed did not convey, or purport to convey, to the purchaser an adverse right to that of the defendant in execution, as tenant of the sixth section, as school lands.

The effect of her purchase was just the same as that of Edrington from Morancy, to substitute her in his place in the contract of lease.

Such being the character of her eontiact, and possession at the commencement, it could not be thereafter changed, by herself or her heirs, to the prejudice of his lessor. Such a title is not the “just title” that is mentioned in Revised Civil Code, 3848, el seq.

Article 3485 declares that “prescription cannot be acquired under a title resulting from a lease, or loan, because these contracts do not transfer the ownership of the property.”

It is therefore clear that the term of prescription in favor of the defendant — if at all — commenced only at the expiration of the Morancy lease, on the 18th of July, 1885.

HI

A qnestion is raised — as though it were an important one in this case — in regard to the registry of the title of W. H. Edrington from Morancy.

On the 1st of August, 1845, when that deed was put to record in the record book kept by the notary passing the act, there was no law which required it to be deposited, or recorded elsewhere. For the first time, the act of April 23, 1853, made it the duty of notaries in the country parishes “to deposit in the office of the parish recorders * * the original of all acts passed before them.”

This act further provides that “said acts, when thus deposited in the office of the parish recorder, shall form a part of the archives of the same and shall immediately be recorded by him,” etc.

Vide Article 2247 of Fuqua’s Civil Code, and statute of 22d of April, 1853, No. 151, following.

Defendant’s counsel insists, in his argument presented in brief, that because the lease of Morancy and his deed to Edrington were not recorded in the parish of Madison, within the territorial limits of which the property now is, same conveyed no notice to Mrs. Eliza M. Edrington, their ancestor, and Whence the defendant must be considered to have purchased an adverse title.

This precise question was decided just the other way in Hayden vs. Nutt, 4 Ann, 65. The Court says: “ This undivided interest was bought by Nutt from Dawson in 1835. * * This deed was recorded in the mortgage book in the parish of Carroll, where the land lay, in 1835. The parish of Madison, subsequently created, comprised these lands, etc.”

Again, at p. 72: “We do not think that the right acquired by the inscription of this mortgage in the parish of Carroll was affected by the subsequent establishment of the parish of Madison, which embraced the lands mortgaged.”

While that decision deals with the question of the registry of a mortgage, certainly no more onerous conditions could be imposed, in respect to the registry of conveyances.

This same principle was maintained in Ellison vs. Iler, 22 Ann. 470, 'with reference to the effect of a mortgage which had been regularly inscribed in the parish of Franklin against real estate afterwards incorporated into the new parish of Richland.

That is a sound principle of law.

Otherwise the Legislature, by the incorporation of property into a new parish, could with impunity destroy the rank of mortgages, and impair the obligation of contracts, at will.

We think the case was correctly decided in the court below.

Judgment affirmed.


text:
    No. 1198.
    G. A. Singer vs. J. E. McGuire, Sheriff, et al.
    The Supreme Court has no jurisdiction over a controversy in which the matter in dispute is the nullity or validity of a judgment rendered for less than the lower limit of its appellate jurisdiction.
    An appellee who has represented to this Court that a case was not within its jurisdiction and the Court has acted on that representation by dismissing the appeal; who subsequently acquiesces in this judgment and voluntarily permits, without any objection, the Circuit Court to hear and determine the same case; who afterwards applies for a prohibition to this Court to arrest the execution of the judgment of the latter court, but is denied the same, and who sues to annul the judgment, surely cannot be heard any longer to set up want of jurisdiction mtione materice in the court rendering the judgment.
    APPEAL from the Fifth District Court, Parish of Ouachita. Bichardson, J.

      C. J. & J. 8. Boatner for Plaintiff and Appellee.

      J.' T. Ludélincj fov Defendants and Appellants.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The appellee claims that this Court is devoid of jurisdiction ratione materice over this controversy, as the matter at issue does not exceed two thousand dollars.

The object of this suit is to annul a judgment for some $750, rendered by the Court of Appeals for the Second Circuit, the execution of which standing provisionally enjoined.

This judgment was rendered in a case in which, it is alleged, the amount in dispute exceeded, by an insignificant fraction, the upper limit of the jurisdiction of that court, and over which it had no authority.

It appears that, previous to the trial and determination of the case by the Court of Appeals, tlie matter in controversy had been brought up for adjudication to this Court; but that, on the representation of the appellees, among whom figured conspicuously the present plaintiff, that this Court had no jurisdiction, as no judgment could, in any contingency, be rendered against any of the appellants for a sum exceeding $2000, the appeal was dismissed proprio motu. State National Bank vs. Allen, 39 Ann. 807.

The natural consequence of this dismissal was the assumption of jurisdiction by the Court of Appeals over the cause and the determination by it of the issues involved in it.

It is an important factor in this litigation that subsequently, when the case appeared before the Circuit Court, it was tried and determined, in the absence of all objection on .the part of the present plaintiff, who was then, as he had been, before this Court the main appellee.

It is another significant circumstance that, after the Circuit Court had rendered judgment for some $750 against the plaintiff, he applied for a prohibition to this Court to arrest the execution issued on the judgment and which was in the hands of the sheriff, and to prevent the court from exercising any jurisdiction over the case, the application resting on the ground that the Court of Appeals had no jurisdiction to render the judgment, as the amount involved in the case exceeded the upper limit of the jurisdiction of that court.

This Court refused the prohibition, on the ground that, as the relator had represented to it that the case was not within its jurisdiction, the appeal had’been dismissed on that showing, and the case had been tried and determined by the Circuit Courts without any objection on his part; he was estopped from questioning the jurisdiction of. that court and could not be heard any longer to complain on that score.

It was never held, for under no circumstances could it have been, that by his consent the plaintiff had conferred jurisdiction on the' Circuit Court in the case in question.

This Court simply denied relief, because the relator then, who is the plaintiff here, was estopped, and it did not lie in his mouth to contest the validity of the judgment attacked as rendered by an incompetent court. State ex rel. Singer vs. McGuire et al., 10 Ann. p. 378, decided in New Orleans in March last.

It needs ho reasoning to show that the appeal taken in this case cannot stand in this Court,’the matter in dispute being the validity or nullity of a judgment for a sum beneath the lower limit of its jurisdiction.

It is manifest that the appellant, who is the judgment creditor, entertained serious doubts touching the appealability of the case to this Court, as a similar appeal was sought and obtained to the Circuit Court by which the judgment levelled against him was rendered.

The appellant, by the dismissal of the appeal here, is not left without hope f..r relief, as the certainty is that the judgment of the Court of Appeals must set the matter now agitated forever at rest.

It is, therefore, ordered and decreed that the appeal herein be dismissed with costs.


text:
    No. 1,200.
    S. Meyer vs. John T. Ludeling.
    A submission to arbitration of the matter, embraced in a subsequent litigation, and .a suit in affirmance of tlie award, praying that it be made executory, constitute1 a legal interruption of prescription.
    APPEAL from the Fifth District Court for the Parish of Ouachita,, liiehardsonl J.

      O. J. & J. 8. JBoatner for Plaintiff and Appellee.

      Frcmlclin Gcm-etl <& John T. Ludeling for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

The plaintiff sues upon open mercantile accounts for goods, wares and merchandise furnished by him during the years 1881 and 1885. Deducting a credit of $7,044.45 he claims a balance of $3,845.02.

In limine the defendant tendered a plea of three years’ prescription' against each and every item of the. several accounts, and it was separately tried and overruled.

The defendant’s answer sets up the general issue and a full settlement of accounts up to and including 1883.

He avers that in the spring of 1884 “he entered into an agieement “ with the plaintiff to purchase certain supplies for plantation use “ from them, under the following terms and conditions, to-wil : Ten “ per cent to be added to the cost for meat and tobacco, to be paid for “ at the end of the year; for dry goods and supplies, except meat and tobacco, he was to pay cash, the price to be ten'per cent added to cost.”

He avers that, in pursuance of said arrangement, he had, up to the middle of Jane, 1884, “ settled for all amounts represented by plain- “ tiffs to be due. for cash purchases,” in cash and drafts.

That on or about the 24th of June, 1884, he purchased a bill of merchandise and delivered to him a lot of wool “ to be sold by plaintiff for “ defendant, and the proceeds of sale applied ” thereto; and that no account has been rendered to him thereof, and plaintiff owes him therefor.

He then avers “ that notwithstanding the said judicial settlements, “ plaintiff’s accounts erroneously contain charges for articles alleged to “ have been purchased within the periods for which defendant had “ settled;” and, though requested so to do, plaintiff failed to give him bills of the merchandise from time to time.

Complaint.is made of “ the charges for freight bills,” as being erroneous and unauthorized, and he avers that “in all instances (he) reim- “ bursed plaintiff, and as soon as he was informed of such payments.” He specially avers that the charge of $15.00 for peas was reimbursed. The defendant then represents that lie delivered to plaintiff in 1884 and 1885, 277 bales of cotton, of which 265 were sold him and twelve were consigned for shipment and sale for his account; that in January or February, 1885, he delivered him six additional bales, for which plaintiff has rendered him no account, “nor have the proceeds been credited” to him on account; that, in like manner, other cottons were delivered to him for sale on account and of which he has received no return.

He “ avers that plaintiff held the proceeds of the sale of all of said “ cotton hereinabove described, as a special deposit for (him) and that “ they owe him for the proceeds $12,430.98,” for which he prays judgment in reconvention against the plaintiff, with legal interest; and he also prays that plaintiff’s demands be rejected.

After a protracted trial, and a full investigation of the accounts of the parties pro and eon, and the vast amount of parol and documentary evidence, the judge a quo rendered judgment in favor of plaintiff for the amount claimed, subject to a credit of $559.32, and from this judgment the defendant has appealed. In this court the plaintiff and appellee has answered the appeal and demanded that the judgment be increased in his favor.

I.

The first question for us to determine is that of prescription. The date at which prescription liberandi causa begins to run on open mercantile accounts is at their maturity, that is, at the end of the year in which they are contracted. On this question there is no dispute. This suit was filed and service of citation made on the defendant, in person, on the 3rd of January, 1888. Hence all items of-indebtedness which were contracted on any date, either in 1883 or 1884, became prescribed on the 31st day of December, 1887 — three days antecedent to the service of citation on the defendant — unless same was interrupted in some of the modes provided by law'. Those contracted in 1885 were saved from prescription by this suit.

The first point made by plaintiff’s counsel is that, at different times, and reasonably, the various accounts were rendered to the defendant, and that same were not specifically denied or disavowed by him, and that, on that account, and in][ that manner, same acquired the charac ter and status of staced accounts ” which are only prescribed in ten years.

His petition makes mention of these as the “ several accounts * * for the years 1884, 1885 and 1886.” Special mention is made of the $262 balance of account of 1883, as having been rendered, but of no other account. This was a much mooted question, oh the trial of the plea, and we think a fair preponderance of the evidence shows that such- of the accounts as were rendered were disputed, and payment was refused, in part at least.

But we are of the opinion that the arbitration proceedings and the suit to enforce the payment of the award of the arbitrators constitutes a legal interruption of prescription, and that the current of prescription remained suspended during their pendency.

A submission of the identical matters litigated in this suit was made to arbitrators, and they were sworn on the 18th of November, 1886. They made and signed an award on the 8th day of April, 1887. On the 20th of August, 1887, the present plaintiff sued in affirmance of the award, and prayed a judgment rendering it executory.

On an exception tendered by the present defendant the judge who tried and decided this cause, tried and maintained the exception on the sole ground that the arbitrators failed to make their award within three months, and that the umpire did not appear to have been sworn.

The code provides that a legal interruption of prescription takes place when the debtor “ has been cited to appear before a court of “justice * * whether the suit has been brought bbfore a “ court of competent jurisdiction or not.” R. C. C. 3518.

In the case of Satterly vs. Morgan, 33 Ann. 846, this court entered into an extensive examination of adjudicated cases under this article of the code, and, upon most careful consideration, held that there is a clear “distinction between tbe technical sufficiency of a citation as a “ basis for the maintenance of proceedings and judgment, and its suf- “ ficiency for the purpose of interrupting prescription.”

The same can be as correctly said of the character of the suit.

An arbitration is a covenant by which persons who have a law suit or difference with another, select arbitrators to decide the matter. R. C. C. 3099.

They may submit “ a law suit already instituted, or only in contení-: plation.” R. C. O. 3102.

“The arbitrators ought to determine as judges, agreeably to the “ strictness of law.” R. C. C. 3110.

■ We think it is clear that the proceedings of arbitrators are quasi judicial. During the pendency of their proceedings plaintiff’s right of action for the enforcement of his demands, in the courts, was suspended; and hence prescription was suspended, if not interrupted, thereby.

The defendant’s counsel claims that the plaintiff dismissed his former suit voluntarily and that he thereby lost the benefit of the interruption, if any was produced thereby. Not so; the judge tried the defendant’s exception and sustained it and rendered an interlocutory judgment dismissing the suit as of non-suit, and with a full reservation of plaintiff’s right “to sue upon the matters embraced in the submission.”

We are of the opinion that the judge a qua correctly overruled defendant’s plea of prescription.

II.

On the merits, the principal contention of defendant’s counsel is that the plaintiff has not introduced a sufficient amount of positive proof to entitle him to judgment.

That while it is true that the plaintiff, as a witness, states emphatically that the accounts are correct, yet he, upon cross-examination, admitted that he did not know that of his own personal knowledge, but that he knew that the accounts were drawn from his books, and that they were correctly kept. His' contention is that a, merchant’s books are not evidence in his favor and hence parol evidence cannot be. This is a non sequitur.

The testimony of the proprietor that he knows that his books are correctly kept is not proof of their contents, but that their contents are correct. This is certainly competent, if not sufficient evidence, when taken m connection with the books. Now, the accounts are the mere exemplifications of the books, and his statement is that the accounts have been correctly kept, to his knowledge. In addition to this, all of these accounts were rendered to the defendant years ago, and while it is true that he did not remain silent, and thus acquiesce in their correctness, yet he did make only a few objections to some of the items. Those items not objected to were certainly admitted. The quotations we have made from his answer clearly admit that there were dealings between himself and plaintiff in those years. In the spring of 1884, he represents and judicially admits that there was an agreement between himself and the plaintiff, wliereunder the latter undertook to furnish him plantation supplies upon certain specified terms. He again states that he settled for all amounts represented by the plaintiff to have been purchased for cost, up to the 24th of June, 1884; that he delivered him a lot of wool for sale, and that the plaintiff had agreed to sell the wool and place the proceeds to his account ; that “ notwithstanding he had made periodical settlements, plaintiff’s “ accounts erroneously contain charges for articles alleged to have been purchased within the periods for which he settled;” that the charges made in the accounts for freights paid are erroneous and unauthorized.

In addition to all of these guarded admissions in the defendant’s answer, clearly admitting the truth and genuineness of the accounts, with limited exceptions, there is other evidence in the record which it is unnecessary for us to detail, which seems to fortify and strengthen the conclusion that the district judge has done ample and exact justice in the premises. Amongst others, one incident may be cited, and that is, the award of the arbitrators which places about the same estimate upon the defendant’s indebtedness as the judgment appealed from does. While it was not offered in evidence for the specific purpose, yet it is in the record, and we may give it consideration as a circumstance that may be placed in the scales before striking the balances.

But without any of these circumstances being considered, the plaintiff’s own statement made on cross-examination, in the absence of other testimony, would be ample. It is ns follows, viz:

Q. Did you sell the articles enumerated in your accounts 1
A. I think I did. Not all of them myself.
Q. Do you know the particular ones you sold ?
A. Not the specific articles.
Q. Do you know of your own knowledge that they were sold 1
“ A. I saw the majority of them sold.”

These statements are corroborated by the evidence of Herman Meyer and Solomon Meyer. The latter states emphatically that he delivered these accounts to the defendant and that he made no objection to them at that time or subsequently.

Altogether, we are of opinion that the accounts are substantially proven, and that the credit allowed defendant in addition to the credit of $7044.45 allowed oy the plaintiff on the' face of the account and before suit, is all that he is entitled to.

Judgment affirmed.


author: Fenner, J.

text:
    No. 1,201.
    John T. Ludeling vs. J. & C. Chaffe, et al.
    Where plaintiff has brought a hypothecary action .agaiust a third possessor for the recognition of his mortgage on property held by the latter, and. for a decree that the property be sold to satisfy the same, and has recovered contradictory judgment to that effect, •which has become final, and has issued execution thereon, said judgment is res judicata as to all antecedent matters which he urged, or might have urged, as defenses in said suit; and he cannot set them up again as grounds for an injunction against the execution of the judgment.
    When a judgment of revival of a judgment against a bankrupt debtor has been rendered contradictorily with the assignee in bankruptcy who has been cited and has answered, such judgment cannot be treated by a third person as an absolute nullity and collaterally attacked without any action or prayer to annul it. The propriety of such a proceeding finds countenance in several decisions of this Court, and presents a grave question, which it is to be assumed was considered and passed upon by the judgb who rendered the judgment.
    Other questions considered and determined.
    APPEAL from the Fifth District Court, Parish of Ouachita. W. F. Millsop, Judge ad hoc.

    Plaintiff and Appellant m propria persona.

      $tul)bs Fussell and G. J. <& J. 8. JBoatner for Defendants and Appellees :
    In a motion to revive a judgment against a person since deceased, and who had made a surrender in bankruptcy, the assignee is the proper person to cite. Stackhouse vs. Zunts, 36 Ann. 529.
    Until an assignee or executor files his final account and is discharged, he still preserves his official function, though there may be no property to administer. 35 Ann. 1022.
    A motion to revive a judgment is not a new suit, but a mere continuance of a pending cause. A curator may therefore be legally appointed to represent the absent defendant, though he have no property in the State. The court obtains jurisdiction by the original service of the original citation. 33 Ann. 314.
    A final judgment of a court of competent jurisdiction imparts absolute verity, and cannot be attacked or questioned collaterally. Kent vs. Brown, 38 Ann. 813, and cases there cited.
    ' The third possessor of property is not entitled to ren's and revenues after judicial demand-The seizure under th&fi fa herein cuts off plaintiff’s right to the use of the property unless he elects to pay the debt for which it was seized. See authorities cited 2 Hen. p. 1195.
    The third possessor is not entitled on eviction to demand the value of improvements placed upon property by his vendor, when he has called his vendor in warranty and obtained judgment for the full amount of the purchase price. 11 Ann. 501.
    An injunction cannot issue on grounds which were or might have been pleaded before judgment. 12 Ann. 197, 313; 6Ann.252; 8 Ann. 6,489; 13 Ann. 112, 374.
    Ani njunction cannot issue to regulate the effects of a seizure wish reference to a mortgage or privilege. The proper remedy is the third opposition. 5 R. 496; 10 R. 28; 2 Ann. 762; 11 Ann. 275 ; 14 Ann. 104.
    An injunction based upon the ground that the sheriff had not obeyed the instructions of defendant, with respect to the advertisement, will not be sustained when other grounds are alleged which prevent the change of advertisement to correspond with plaintiff’s directions, and arrest the sale until ihe court passes on the same.
    The law giving the defendant the right to select the paper in which the advertisement shall be inserted is merely directory, and its violation gives no ground for injunction except on allegation of irreparable injury.
   The opinion of the Court was delivered by

Fenner, J.

This is an injunction suit to restrain the execution of a judgment rendered against plaintiff and affirmed by this Court in a certain suit entitled J. & C. Chaffe vs. Ludeling, reported page 962 of 34th Annual Reports. J. & C. Chaffe were recorded judgment creditors of Mrs. E. C. Warfield, and the suit just referred to was a hypothecary action brought against Ludeling as third possessor of certain property claimed to be subject to their judicial mortgage, and judgment was asked recognizing their mortgage on the said property and decreeing it to be sold in satisfaction- thereof. D'efendant interposed a plea of discussion and other defenses, which were overruled for reasons given in the opinion, and judgment was rendered recognizing the mortgage and condemning Ludeling- “ either to pay the judgment with the costs thereof or to give up the land to be sold therefor.”

This judgment was affirmed by this Court.

It is too obvious to admit of serious discussion that this judgment absolutely and finally settled, as between the Cbaffes and Ludeling, the right of the former to require Ludeling to pay off their mortgage debt or to sell the land for the satisfaction thereof. Ludeling has had his day in'court on this issue and was bound to urge all his defenses, and his mouth is closed aB to all matters antecedent, to the judgment which he urged or might have urged against its rendition.

In his present petition for injunction he sets up a multitude of matters which were either pleaded or might-have been pleaded as grounds for denying or qualifying the above absolute judgment, as to all of which the judge a quo sustained the plea of res judieata; and we consider his ruling to be clearly correct.

The plaintiff, however, assigns other grounds for his injunction, arising subsequently to the judgment, which require consideration.

I.

He pleads that the judgment of the Chaffes against Warfield, the record of which is the basis of their mortgage on his property, is perempted and prescribed.

Unless it is prescribed there is no foundation for the plea of peremption, the reinscription having been seasonably made.

The question of prescription depends upon the validity and effect of the proceedings taken by the Chaffes to revive their judgment against Warfield. These proceedings were taken in proper season before the lapse of ten years from the rendition of the judgment.

Article 8547 C. C. provides: “All judgments for money shall be prescribed by the lapse of ten years from the rendition of such judgments. Provided, however that any party interested in any judgment may have same revived at any time before it is prescribed, by having a citation issued according to law, to the defendant or his representative, from the court which rendered the judgment, unless defendant or his representative show good cause why the judgment should not be revived, and if such defendant be absent and not represented, the court may appoint a curator ad hoc to represent him in the proceedings, upon which curator ad hoe the citation shall be served. Any judgment revived as above provided shall continue in full force from the date of the order of court reviving the same, etc.”

The defendant, Mrs. Warfield, had removed from the State and died, and had no heirs resident in the State or property situated therein. Prior to her death she had made a surrender in bankruptcy, and her assignee in bankruptcy was still in office, having never been discharged.

In their petition for revival the Chaffes represented the death and bankruptcy of Mrs. Warfield and the non-residence of her heirs; alleged that W. T. Atkins had qualified as assignee of her estate and has never been discharged; set forth the non-residence of her heirs and prayed that “ if they were in any sense her representatives ” a curator ad hoe should be appointed to represent them; asked that the assignee and the curator should be cited, and for judgment reviving the judgment. A curator was accordingly appointed. Atkins, the assignee, was duly cited and appeared and filed answer. The curator accepted service of the petition and waived citation, but appeared and' filed answer. On issue thus joined the court regularly tried the case and rendered a judgment of revival, which is now final.

The plaintiff in injunction has never brought suit to annul this judgment. Even in his present action he has offered no prayer to have the judgment annulled, nor has he brought in any of the parties thereto except the present defendants. He simply treats it as an absolute nullity for want of citation.

It is undoubtedly true that a judgment rendered without citation is a nullity so absolute that it may be invoked in any proceeding and by any one interested.

But here, so far as the assignee is concerned, there was a perfect citation followed by appearance and answer. The petition advised the Court of the grounds on which it was claimed that such assignee was the proper representative of the judgment debtor, contradictorily with whom the proceedings in revival should be carried on. It may be assumed that the Court, in rendering its judgment, considered and determined that he was the proper representative of the judgment debtor.

The question as to his capacity to represent the bankrupt debtor in such proceedings is, under the jurisprudence of this Court, to say the least, a doubtful one.

In the case of Alter vs. Nelson, 27 Ann. 342, which was a suit to revive a judgment against a bankrupt, it was held that citation of the latter was unavailing and certainly suggested, as the only alternative, that the assignee was the proper party.

In Wheless vs. Fisk, 28 Ann. 731, where bankruptcy occurred pending a suspensive appeal, it was held that plaintiff had a right to proceed in order to preserve his right against the surety on the appeal bond, and the Court, of its own motion, ordered the assignee to be made a party, and rendered judgment contradictorily with him.

Serra vs. Hoffman, 29 Ann. 17, was precisely similar to the last, and it was held that the assignee could not be made a party.

Chapman vs. Nelson, 31 Ann. 341, certainly says that the assignee is not a necessary or proper party in a proceeding to revive a judgment against a bankrupt, but the dicta on that point were obiter because the case went off on the question of jurisdiction of the Court.

In the case of Grayson’s Executor vs. Morton, later than the foregoing, the proceeding was to revive a judgment against a bankrupt by citation of the assignee alone. It was first held that it could not be done, but, on rehearing, on the ground of stare decisis, it was held that the proceeding was proper and valid. Manning’s Unr. Cases, p. 187.

In the case of Grayson’s Executors vs. Morton, 33 Ann. 1018, we quoted at length from the last'mentioned decision and indicated our approval of it where the assignee was still in office, but held it could not apply when the assignee bad been discharged.

Finally, in a very recent case, which was also an action to revive, we said on the foregoing authorities: “We think the assignee was properly made a party to the action and the only one that could represent the bankrupt debtor or his estate.”

Stackhouse vs. Zuntz, 36 Ann. 529. If there be error in these decisions, it is one whieh originated long ago and which has been perpetuated on the ground of stare decisis, to protect parties who have acted upon this jurisprudence as a means of saving their judgments from destruction by presciiption. The question involves nothing but a method of proceeding in order to interrupt prescription, which is subject to the arbitrary control of the Legislature, and no class of cases invokes so strongly the application of stare decisis.

In a proper case we might review them and might consider the distinction betw’een bankrupts who have secured their discharge and those who have not; though the bankrupt who does not plead his discharge is just as amenable to suit as if undischarged, and in several of the cases the bankrupt had not been cited at all.

At all events, and without finally committing ourselves on all these questions, it is obvious that the judgment of revival here invoked is not infected with any nullity so absolute as to authorize it to be questioned by a third person in this collateral way; but that its validity depends on. a grave question of proceeding, the propriety of which seems to be sanctioned by the judgment itself. This obviates the necessity of considering the validity of the proceeding as against the curator under his waiver of citation.

The defense of prescription was, therefore, properly overruled.

II.

The objections as to the form of the execution and the failure of the sheriff to advertise the sale in the paper suggested by the defendant in execution, have been elaborately considered by the judge a quo and we consider his reasons for disregarding them sufficient. The defendants in this case are not responsible for the sheriff’s default in the matter of thé advertisement, and it may be corrected in the future proceeding which will be necessary. Had it been the sole ground of the injunction it would doubtless have been corrected as soon as suggested.

in.

Plaintiff claims credit for tlie enhanced value of tlie property arising from the improvements made, not only by himself, but by his immediate vendor, the succession of Dinkgrave, his warrantor. He has already recovered judgment against his warrantor for the full price paid by him, which naturally includes the value of the improvements made at the date of the sale. He certainly cannot claim the value of Dinkgrave’s improvements out of the sale and, at the same time, hold a personal judgment against his succession for the same value. He may subject this value to his uncollected judgment against Dinkgrave, but he cannot directly claim it.

The whole of this claim should have been asserted against the proceeds of the sale, and had no place in this injunction suit; but the judge a quo recognized plaintiff’s claim to the value of his own improvements and, as no amendment is asked in that respect, it must stand.

Defendants’prayer for an amendment allowing them a judgment for rents and revenues has no foundation in the pleadings and cannot be allowed in this proceeding. Nor do we think it proper to amend the. judgment as to damages.

Judgment affirmed.


text:
    No. 1194.
    L. D. Spears vs. His Creditors.—J. R. Fuller & Co., Opponents.
    Any creditor may oppose the appointment of a syndic, or charge fraud against the insolven t debtor, by means of an opposition laid before the Court within ten days next following the meeting of creditors.
    The acceptance of an insolvent’s surrender and the selection of a definitive syndic by a meeting of his creditors, cannot conclude jndioial inquiry into the legality of the syndic’a appointment or a charge of fraud against the insolvent.
    At such a’meeting of the creditors of the insolvent, their respective claims are certified on oath to be true and legitimate, and- such certification of their claims entitles them to vote. This is an ex parte proceeding before a notary public possessed of no judicial powers, and cannot operate as an estoppel or res judicata in respect to subsequent judicial proceedings.
    Atsucb a meeting of creditors only two questions can be presented or determined — one is the acceptance of the insolvent’s surrender and the other is the selection of a syndic.
    Before any proceedings can be taken looking to tbe sale of tbe property of the insolvent, and the application of the proceeds to liis debts, it is necessary that a syndic should have been qualified and an order of court for tbe sale obtained. As an incident of such proceedings, a meeting of creditors must be called for tbe purpose of determining the terms and conditions of sale,
    Mortgaged and privileged creditors are not bound by the decision of the majority of other creditors, whether they desire the property offected with their liens to be sold for cash or on terms of credit in satisfaction thereof.
    Privileges must be ascertained and settled' contradictorily with all the creditors. Creditors cannot litigate their demands separately against the syndic, or in an opposition to the appointment of a syndic.
    APPEAL from the Third District Court, Parish of Claiborue. Young, J.

      Everett & Everett and MeOlendon & Seals for Opponents and Appellants :

      lies adjudicate cannot be raised as to a question which was not made an issue, and which has not been adjudicated upon.
    Estoppel is founded upon tbe principle that a party is hound.by his previous actions, admissions or allegations; so where he has a vendors privilege and fails to ask for and have it recognized in the judgment, he is not afterwards estopped from claiming bis privilege in a contest with other creditors. 29 Ann. 841; 32 Ann. 826, 827.
    The renewal of a note for tbe purchase price of machinery and fixtures does not novate the obligation. To efíbet a novation the intention of the parties must be expressed. Novation is never presumed. C. C. Art. 2190, 2185 et seq,; 34 Ann. 534 ; 32 Ann. 8221 24 Ann. 193; 6 R. 443; 4R. 493; 81. 431.
    The privilege of tbe vendor springs from the nature of the debt, and exists by force of law, and where a judgment creditor is clothed by law with such a privilege, the more absence of any expressed recognition of the privilege of the judgment of the court does not impair the lien. 32 Ann. 826, 827; 29 Ann. 841.
    In insolvent proceedings, privileged creditors have the right to dictate how the property on which they have a privilege may he sold. They are not premature in asserting this right before the property is sold and the funds ready for distribution by the syndic. R. S. Sec. 1800.
    Where an insolvent files an application for a surrender, and alleges himself to be doing a farming and milling business and engaged also in merchandising, and he fails to surrender his hooks of accounts, notes, etc., without assigning any good reason for withholding them, his petition will he rejected and his surrender denied. 8 L. 318 ; 1 R. 170.
    Where the ceding debtor fails to surrender all of his property or goods, or gives an unfair preference to some creditors, his petition will he rejected. R. S. Sec. 1804,1786,

      J. W. Holbert, contra.

   The opinion of the Court was delivered by

Watkins, J.

Puller & Co. oppose the cession of their insolvent debtor, Spears, and the homologation of the proceedings of a creditors’ meeting, whereat a syndic was chosen dnd the terms for the sale of his property fixed on the following grounds, viz:

1. That they were placed on the insolvent’s schedule of debts as ordinary creditors, when they should have been placed thereon as creditors with vendor’s lien and privilege on a certain steam-mill, engine and fixtures which are included amongst the property surrendered.

2. That Jacob Stein & Co. were placed upon said schedule as creditors, when they were not, in fact.

3. That just prior to making his surrender, the insolvent favored, some of his creditors, to their prejudice and injury, by giving them property in satisfaction of their demands, and “this was an unfair preference, working an injury to the rest of his creditors.”

4. That the schedule of his assets did not include the whole of the insolvent’s property.

5. That the insolvent did not produce, and on proper demand therefor, failed and refused to produce and surrender “his books, accounts, notes, etc., for inspection.”

Opponents substantially aver that, in so doing, the insolvent was guilty of such fraud as should deprive him of the benefits of the insolvent law.

The insolvent denies all of these charges; alleges that he made a fair and faithful surrender of his property, and avers that all those who are placed on his schedule are really and actually his creditors.

He also pleads res judicata, estoppel, payment and novation.

The demands of opponents are rejected in the court below, and they have appealed.

I.

The pleas of estoppel and res judicata are predicated _ on the proceedings of the creditors at the general meeting, whereat the surrender of the insolvent was accepted, a definitive syndicate chosen, and the terms of sale of property regulated.

It is the homologation of those proceedings which is resisted by opponents.

The pleas are not well founded. The law provides that “should any creditor of an insolvent debtor deem it necessary to oppose the appointment of a syndic or to charge fraud against the debtor, he shall, within ten days next following the meeting of creditors, lay before the court his written opposition, stating specially the several facts of nullity of the appointment or fraud alleged against the insolvent debtor.” R. S. Sec. 1802.

It is obvious, therefore, that the acceptance of an insolvent debtor’s surrender by a majority of his creditors in number and amount does not preclude enquiry into ihe legality of the syndic’s appointment, much less the examination of a charge of fraud preferred against the debtor.

Express permission is given by the statute to “ any creditor * * to oppose the appointment of syndic or to charge fraud against the debtor ” after the meeting of the creditors have accepted the surrender and selected a syndic.

On such proceedings no question of fraud or nullity is raised. The statute provides that “ at the meeting of the creditors, after having certified on oath their respective claims to be true and legitimate, they shall proceed to the appointment of a syndic." R. S. 1796.

Such certification on the oath of the respective creditors is necessarily ex parte. It is made before a notary public possessed of no judicial power whatever. It. would be anomalous, indeed, to hold that such a proceeding could estop or debar judicial inquiry. It is only after the insolvent’s surrender has been formally acted upon and accepted by his creditors that those dissatisfied therewith are called upon to make opposition.

The pleas of res judicata and estoppel cannot prevail.

II.

An examination of the proees verbal of the proceedings of the meeting of the creditors discloses the fact that not alone was a definitive syndic elected, but the. terms of sale of the insolvent’s property were fixed, and same was ordered to be sold, subject to such privileges as may exist thereon according to law, the amount of all bids less than ten dollars payable in cash, and those in excess of that sum payable on the first of November following. ,

Opponents complain of this part of the proceedings on the ground that the creditors had no authority “ to fix the terms of sale of the machinery,” etc., on which they assert a vendor’s privilege.

The petition of the insolvent, which accompanies this schedule, shows that he desired to make a voluntary surrender of all of his property to his creditors, and that for the purpose of laying before them a statement of his affairs, a meeting of his creditors should be called. It is accompanied with a prayer that a meeting of his creditors be convoked before a notary public, at a time and place to be indicated, at which time and place he might “ lay before them his affairs and surrender to them his property,” and that in the meantime all proceedings against his person and property should be stayed. The order of court followed the averments and prayer of the petition.

It is apparent that the creditors had not, at this stage of the proceedings, any right to fix the terms of sale of the property of the insolvent. Under the prayer of the petition and order of the court, there were but two questions submitted to their consideration, and those were, 1st, the acceptance of their debtor’s surrender, and, 2d, the selection of a definitive syndic. This was the only power given to such a meeting of creditors. R. S. Sec. 1796.

Of course, it was absolutely necessary that the creditors should first accept their debtor’s surrender and choose some one to undertake the administration of his estate, and that he should have qualified and entered upon the discharge of the duties of his office before any proceedings could be taken looking to the sale of the debtor’s property, and the application of the proceeds to the payment of his debts.

These things having been done, the property ceded may “be ordered by the court to be sold at public auction, at such time and place and upon such terms and conditions as may be determined by the creditors.” R. S. 1812.

But such order must be preceded by a petition of the syndic, and when presented the court will convoke a meeting of the creditors for that purpose. The mortgaged and privileged creditors shall not be bound by the decision of the majority of the other creditors, if they desire the property affected with their liens to be sold on a credit' They have, also, the right to require that a sufficiency thereof be sold for cash to satisfy their privileged claims. R. S. Sec. 1800.

The proceedings of the creditors’ meeting, in so far as they relate to the fixing of the terms of the sale of the insolvent’s property are premature, and, on that account, are null and void. For this reason we do not feel authorized to decide whether opponents are entitled to the recognition of their vendor’s lien or not. It must be relegated to some future proceeding and determined contradictorily with other creditors of the insolvent.

The total assets surrendered are stated to be worth only $2800, and the insolvent’s debts are placed at $3800. If the claim of opponents is recognized as being secured by a vendor’s lien, and entitled to be paid by preference, a large portion of the assets will be absorbed thereby, and the amount applicable to ordinary debts correspondingly reduced. Hence, ordinary creditors have an interest in the determination of this question.

In Finney vs. Provosty, Syndic, 14 Ann. 218, it was held that ‘‘ privileges must be settled contradictorily with all the creditors upon a tableau of distribution filed. The creditors cannot litigate their demands separately against the syndic.” Faber vs. McRae and Provosty, 14 Ann. 657, and authorities therein collated) Robert vs. His Creditors, 2 Ann. 535.

III.

A fair preponderance of the testimony favors the validity of the debt of Jacob Stein & Co. that is entered upon the insolvent’s schedule. It is at least sufficient to justify the insolvent in placing it there and to exonerate him from the charge of fraud that opponents have preferred against him on that account. But we do not hold that the proof submitted in reference to this claim can, in any manner, affect the rights of other creditors. The validity of said debt, as such, must, like the question of opponents’, privilege, be relegated to future adjustment.

IY.

On the charge preferred against the insolvent of having given goods and property to some of his creditors in satisfaction of their demands, no proof was adduced by opponents. They rest this branch of their case exclusively upon the admissions made by the insolvent in his evidence.

They are to the effect, substantially, that shortly anterior to making his surrender, his saw-mill was destroyed by fire and he collected $1648 insurance money. This he expended for goods, in payment of plantation supplies, and in making payment of some small debts he owed. To his answer is appended an itemized statement of such expenditures.

He admits that he gave small amounts of goods in exchange for labor, corn and other things, and that he paid a few small debts that he owed in goods. But the amount of the debts thus paid was quite small. He states that, at the time of his surrender, he had none of the insurance money on hand; that he had no intention of defrauding his creditors in thus expending his money and disposing of his goods; that his mercantile business was quite small — his stock scarcely exceeding $300 at any time.

He says the goods and their value were used by myself and family and mill-hands and farm-hands — and I sold a part of them. The amount disposed of and the amount on the schedule under seizure, accounts for all the goods I had on hand. I had no money or amounts due for goods, or goods that were not surrendered.”

There is no countervailing evidence. Some of his neighbors testify to his good reputation and character.

We think it would be a strained interpretation of these acts of the insolvent debtor to style them fraudulent in the sense of the provisions of R. S. Sec. 1802 et seq. On the contrary, they indicate an intention to satisfy Ills debts just as speedily as possible, consistent with his slender resources. It was the seizure of his property by the opponents, which brought about his surrender. This ground of opposition is untenable.

V.

The proof satisfies us that the schedule fairly accounts for all the insolvent’s property.

VI.

The insolvent states that he kept no mercantile books. The only one he did keep was a small memorandum book, and this he tendered to the opponents in court. He evidently does not come within the denunciation of the statutes against “ those who, being merchants and shop-keepers, shall have concealed their commercial books and papers * * with the intention of keeping same from their creditors.” R. S. Sec. 1802.

VII.

We have taken the pains to review with care all the points of objection urged pro and con, and have reached the conclusion that the action of the creditors in fixing the terms of sale of the insolvent’s property was premature and unauthorized, and that, in this respect their proceedings should be annuled; that the questions raised with regard to the alleged privilege of the opponents, and the validity of the debt of Jacob Stein & Co., should be postponed until the eoneursus is formed and adjudicated therein contradictorily with all the creditors ; and that the judgment should be, in other respects, affirmed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be so amended as to reject and annul that part of the proceedings of the creditors’ meeting which fixes the terms of sale of the insolvent’s property; and farther amended so as to postpone consideration of the opponent’s privilege, and the validity of the debt of Jacob Stein & Co. until a eoneursus is formed with all the creditors.

It is further ordered, adjudged and decreed that in all other respects said judgment be affirmed, and that the costs of appeal be taxed against the succession of the insolvent, and those of the lower court to await the final termination of proceedings in the court a qua.


text:
    No. 1,311.
    J. A. Boyer vs. L. A. Joffrion, Sheriff, et als.
    A money lender may safely deal, as far as the question of ostensible ownership goes, with one whose title to real estate properly appears on the public records and cannot be affected by any anterior transfer of the property, unless the same was made by the ostensible owner, his authorized agent, or by judicial authority, and the transfer was patent by proper registry.
    Such party cannot be charged with notice, unless the notice result from a valid registry of the transfer, and is not bound by judicial proceedings in which the title of the property is involved, but to which he was no party. Notice, as a rule, is not equivalent to registry.
    On the dissolution of an injunction, arresting an order of seizure and sale, not a money judgment, damages cannot be allowed.
    Hr. Justice Boché was absent during this term on account of illness.

      APPEAL from the Twelfth District Court, Parish of Avoyelles. Ooeo, J.

      Joffrion & Bordelon for Plaintiff and Appellant.

      Thorpe & Beterman for Defendants and Appellees:
    1.Plaintiff in suit is not entitled to call liis vendor in warranty, 19 L. 368; O. P. Art. 378 et seq; 2 Ann. 271; Ibid 755; 15 L. 471; B. C. C. Art. 2519; !) Ann. 367; Cross on PI. 432.
    2.Phat the warranty shall have existence, it is nocessory that the right of the person evicting shall have existed before the sale. B. C. C. 2478 ; 18 Ann. 560.
    3.A sale of land without description of boundary or location is inoperative as notice to the public ‘ 37 An. 751; 8 Ann. 283; 10 Ann. 193, 327, 613; 11 Ann. 87.
    4.A sale of immovable property by private act has no effect against-third parties until actual delivery to the vendee of the thing sold. B. O. C. Art. 2442.
    5.An act nnder private signature dates only from the time of its production in the absence of evidence aliunde ot its real date.
    6.A sale of immovables by private act has effect against third parties only from the day ' of its recordation and proof of its execution by the oath of two subscribing witnesses. B. C. C. Art. 2442 ; 21 Ann. 241, 591; 32 Ann. 927; Act IS o. 274 of 1855; 21 Ann.426; 33 Ann. 1249.
    7.A certified copy of a private act, even though registered, is insufficient to prove title to real estate — the originalmusí beproduced and signatures proved by competent evidence. 26 Ann. 249; 28 Ann. 725.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a petitory action.

The plaintiff claims to be the owner of certain real estate, advertised to be sold under executory process, issued by Jean Artigues against A. L. Boyer, to foreclose a mortgage.

He avers a purchase of the property by him from Mrs. Lougarre, on December 17, 1885, by act duly recorded on the same day in the conveyance hook, and inheritance of the property by his vendor from her father, Eugene Amet, who died in 1875.

He calls in Mrs. Lougarre to make good his title, and the latter appearing, calls in A. L. Boyer to defend her title, by virtue of a clause in a private writing, which is a submission to arbitrators of a litigation once pending in the succession of Amet, íd which the property in question was involved, and to which A. L. Boyer was a party.

The plaintiff coupled his demand for recognition as owner, with a prayer for an injunction to arrest the sale, which was granted.

The defense moved to strike out. the call in warranty, because the law does not authorize such a proceeding by a plaintiff, and because the plaintiff averred the mortgage to have been subsequent to his purchase.

The call in warranty was stricken out by the Court.

For answer, the seizing creditor denied any title in the plaintiff that could prevail over his mortgage and averred that, long prior to the alleged purchase of plaintiff, i. May 18, 1878, the property had been sold at the succession sale of Amet to one Bielkiewicz, who had, on the same day, transferred it to A. L. Boyer, and that the two acts had been seasonably and properly recorded.

He further contends that, at the time of execution of the mortgage in his favor by A. L. Boyer, i. e., May 29, 1886, the conveyance books disclosed no alienation of the property by A. L. Boyer to any one.

He concludes, praying for the dissolution of the injunction, with damages.

There was judgment dissolving the injunction — without damages.

The plaintiff appeals and Artigues prays for an amendment of the judgment, by allowing him the damages which he claimed below.

We deem it unnecessary to review the judgment of the lower court striking out-the call in warranty made by plaintiff.

Conceding arguendo, that the plaintiff had authority to proceed in the manner in which he did and which was objected to, his right to the property in question would not be in the least affected thereby, for it is clear that, whatever his lights may be, if any, against Mrs. Lougarre, and those of the latter against A. L. Boyer, the defendant in injunction and plaintiff in the executory proceeding cannot, in the least, be concluded thereby. Further, it is objectionable to engraft upon the litigation between the plaintiff and Artigues, claims which the former may have against parties who are utter strangers to the latter.

The record clearly shows that, on the 29th of May, 1886, when A. L, Boyer mortgaged the property in question, in favor of Jean Artigues, the public records showed that he had acquired it from Bielkiewicz, on May ,18, 1878, who had himself become the adjudicatee thereof at the sale of the succession property of Amet, and did not disclose the fact that he had previous to, or on that day, disposed of his title to it.

It is true that A. L. Boyer, the transferred of Bielkiewicz, was a party to the controversy in which the validity of the adj udication of the property to the latter was involved; that the finding of the arbitrators annulling it and the judgment of the court homologating it were binding upon him; that this occurred in 1883, prior to the con - veyance to him by Mrs. Lougarre, and that this sale was recorded in December 1883, more than two years before the mortgage was consented by A. L. Boyer in favor of Artigues; but all this, as far as Artigues was concerned, was perfectly immaterial.

The finding of the arbitrators and the judgment upon it annulling the adjudication, divesting A. L. Boyer of any title to the property, had not been recorded previous to the granting of the mortgage. Neither had the sale of the same property by Mrs. Longarre to A. L. Boyer been recorded. To this date neither appears to have been recorded in the regular conveyance book of the proper office.

It is worthy of notice that the act of sale by Mrs. Lougarre to the plaintiff of the property contains no derivation of title. It does not state that the property sold belongs to the vendor, Mrs. Lougarre, for having been inherited by her from her father, and that it once stood in the name of A. L. Boyer; but that his ostensible title thereto had been judicially annulled and divested. So that, it cannot be pretended that, by an inspection of the conveyance book, a third person could at the time of the mortgage have ascertained from it, the least vestige of a mutation of title.

No third person, under the peremptory provision of the law, can, as. a rule, be bound by an alienation of real estate, in or to which he may have some title or claim, unless it appear from the proper public records, that his debtor, whoever he be, has parted with his title or has encumbered his estate ; and, even then, only to the extent, if any, expressly prescribed by law. 14 Ann. 414.

A different interpretation of the law would prove destructive of the benefits which it intends to confer, and would place capitalists at the mercy of their debtors and jeopardize loans of money on mortgage security.

We therefore conclude that a money lender may safely deal, as far as the question of ostensible ownership goes, with one whose title to real estate appears on the proper public records, and that he cannot be injuriously affected by any anterior transfer of the property, unless the same be made by the ostensible owner, or by his authorized agent, or by judicial authority, and the transfer has become patent by proper registry. No other notice can prove knowledge.

The plaintiff has not proved that the defendant ever had.legal and sufficient notice of the transfer of the property to him, by Mrs. Longarre, previous to the date of the mortgage, and Artigues is not bound by the arbitration proceedings which, as to him, are res inter alios acta.

The injunction was properly dissolved. As it did not arrest the execution of a money judgment, but simply of an order of seizure and sale, the district judge was right in not allowing damages.

Judgment affirmed.