text:
    No. 1057.
    Police Jury of Vermilion Parish vs. John A. Brookshier, Tax Collector, et al.
    It is not necessary to pursue a defaulting tax collector and his sureties for money collected and not accounted for by him, in the form of an ordinary action. They may be proceeded against summarily, by rule, whether the collector was appointed before or after April 20,1877.
    After a tax collector has acted under the ordinances of a police jury, and collected the taxes laid by them, he nor his sureties can contest the legality of those ordinances.
    Where the delay in proceeding against a defaulting tax collector has not prejudiced his sureties’right of subrogation, they can not complain of the delay.
    Where each of the sureties of a tax collector has obligated himself for a specific sum, each can be held only for that sum, and all of them can be held for no more than the full amount due by the collector to the State.
    A tax collector is prima facie liable for the whole amount of his assessment roll, and if he fails to pay in that amount at the proper time, the whole burden of proof is on him to show discharge, payment, or whatever other defence he may have, in extinguishment of his liability.

      A defaulting tax collector can not offer in evidence delinquent rolls of former years, not verified by the oath of the collector, and which are, moreover, fraudulent.
    "Where the refusal of the judge to pass on an exception before going to trial, has not injured the defendant, as where the exception was overruled, the defendant can not complain.
    The judge may conclude in open court a trial begun in chambers.
    The tax collector of a parish has no right to pay, out of taxes collected by him, a judgment against the parish.
    A defaulting tax collector is entitled to recover nothing for his services, and hence can not prove the value of those services.
    A tax collector is not entitled to a credit for election vouchers, or witness certificates, when it does not appoar that they had not been received by him in payment of taxes.
    APPEAL from the Sixteenth Judicial District Court, parish of Vermilion. Mouton, J.

      W. A. White, parish attorney, and F. B. King for plaintiffs and appellees.

      W. W. Edwards, Mouton & DeBaillou, B. P. C. Bryan, and Posey & Posey for defendants and appellants.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff instituted this suit against John A. Brookshier, and the sureties on his bonds as tax collector of Vermilion parish, to recover $30,969.87 and two per centum a month interest, alleged to have been collected by him during 1875 and 1876 and not accounted for. The proceeding is by rule, and the defendants excepted;

1. That being a demand for a balance of account, the proceeding should be an ordinary action to establish and determine that balance, after citation and ten days notice.

The law expressly provides a summary proceeding against defaulting tax collectors, and always has provided it. In the early years of the State, the State Treasurer issued an execution upon the account as stated in his own books. Sec. 70 of the Act of April 20, 1877, is a reprint of sec. 3308 Rev. Stats. 1870, which is a reprint of sec. 71 of the consolidated revenue laws of 1855, Rev. Stats. 1856, p. 475, and that is but a reproduction of an anterior law. Our reports abound in cases, every one of which was by rule or motion under a law having the identical provision of that under which this rule is taken. A writ of distress even was once permitted. State v. Winfree, 14 Annual, 643.

2. This summary proceeding can be applied only to tax collectors appointed under the Act of 1877, and not to former collectors who have gone out of office.

The same remedy, enacted in totidem verbis, existed at and long before this tax collector’s time.

And so of the rest of the numerous exceptions. The answer to all of them is that from the beginning our laws have contrived summary proceedings upon tax collectors’ bonds, the object of ,all of them being to enable the State or parish to proceed at once against the officer and his securities, and to prevent the interposition of the delays that are incident to ordinary actions. Some of these exceptions are frivolous. For example, the 8th is that all proceedings on these bonds must be brought in the name of the obligees, and not in the name of the police jury, by which is meant, that the bonds having been given to a former president of the police jury, a succeeding president of that body cannot bring suit upon them.

On the merits the defences are as numerous, and as unsubstantial as the exceptions.

The sureties allege that the parish taxes which were levied exceeded the maximum that could be legally collected. They were levied by ordinances of the police jury, and they were collected by their principal, and .they cannot contest the legality of those ordinances after he has acted under them and collected the taxes laid by them. McGuire v. Bry, 3 Rob. 196.

The sureties claim a release because of an alleged delay of the police jury in enforcing a settlement by Brookshier. Their complaint is that the plaintiff was so dilatory in commencing proceedings as to imperil their safety, but when proceedings were commenced the complaint is that it was going too fast, and should be delayed by being subjected to the stages of an ordinary suit. It is not shewn, nor even pretended, that whatever delay there was in instituting proceedings either impaired or destroyed their right of subrogation, or any other right. The right of subrogation is indeed the only one that could be impaired by delay, and it was not affected in any manner by tardiness in instituting this proceeding. The surety is discharged when he loses his right of subrogation. The mere delay to sue does not of itself produce that effect. Barnes v. Crandell, XI Annual, 119.

The sureties claim the benefit of division. Their obligation is several up to the full amount for which each has signed. When sureties to a defaulting tax collector’s bond have obligated themselves, each for a specific sum, the State is entitled to judgment against each one for the full sum for which he is bound, but no more can be collected from them all than the full sum due the State by the defaulting collector. Copley v. Dinkgrave, 7 Annual, 595.

The counsel for the plaintiff correctly observes that the process of computing the debits and credits on a tax collector’s account is very simple. He is charged with the sum total of the rolls and of the licenses, and it is for him to offset these by legal vouchers for legal payments, and by a delinquent list made in due form. The tax collector is presumed to have collected all that is on his roll and his number of licenses, and if he does not settle by a given day, he is a defaulter ipso Jacto. Every thing .is presumed against him. He is prima facie liable for the whole amount of the assessment roll, and the onus of proof is ■upon him to shew discharge, payment, etc. Scarborough vs. Stevens, 3 Rob. 147. Vermilion Parish v. Comeau, 10 Annual, 695.

Eor the purpose of establishing a credit, a receipt of Nunez, the successor of Brookshier, for the delinquent rolls of former years was offered, and the rolls were offered in evidence also. They are not verified by the oath of the collector, and have not therefore the form required by law, and they are besides fraudulent, it appearing from tax receipts in evidence that many of the persons returned therein as delinquent had paid to Brookshier. He was entitled to a credit for such •sums as his successor collected, which is proven to be $4,938.95, and it has been given.

Several bills of exception were taken.

1. To the refusal of the judge to pass upon the exceptions previous "to going into the trial.

We have more than once had occasion to observe that the practice of referring all sorts of exceptions to the merits is vicious, and ought •not to be indulged in by the lower courts. Sometimes a decision upon an exception settles the controversy, at least in the form then presented, •and if made in the outset would terminate the case. That would not have resulted in this case, since the judge overruled all of them, and the defendants have not been injured by the course complained of.

2. To the judge’s proceeding with the trial of the case in open court after it had commenced in chambers.

The trial of the case had been commenced in chambers under the Act of 1873, Sess. Acts p. 181, and not having been completed when the •regular term of court commenced, it was proceeded with in court. The purpose of the law in permitting the trial in chambers is obvious. It •could take place either in term or between terms — -either in court or in •chambers. The object was celerity, and the objection of the defendant that a new tribunal was created thereby, not recognized by the constitution, viz a judge sitting in chambers to hear and determine a cause, needs no further notice than to state it.

3. To the rejection of three receipts for money paid by Brookshier in payment of a judgment.

It was rightly held that he was without authority to pay over money to the creditors of the parish. The judgment he paid was reversed on appeal. He paid wrongfully in a double sense — prematurely, before the judgment was Anal — illegally, because without authority to pay at all.

4. To a ruling disallowing proof of the value of his services rendered in making the parish assessment rolls of 1875 and 1876.

His commissions are his compensation. His defalcation forfeits them. He cannot recover them under the guise of a claim on a quantum, meruit.

5. To a ruling excluding certain election vouchers and witness certificates as credits.

It did not appear that they or any of them had been received in payment of taxes. A tax collector cannot pay or purchase such claims against a parish.

The lower judge has given a patient and intelligent hearing to all of the defences. His judgment is for three thousand dollars with interest at two per centum a month " from judicial demand,” which he would have discovered to be August 30,1877, if he had taken the pains to look for the service of citation, and by inserting its date in his judgment made it unnecessary for any one to look outside of, the judgment to ascertain the date from which interest is to be calculated.

Judgment affirmed.


source: Caselaw Access Project

author: DeBlanc, J. Manning, O. J.

license: Public Domain

text:
    The following four oases, delivered at the last New Orleans term, of the court, are now published by order,
    No. 6830.
    Olympe Boisse and Husband vs. Mrs. H. P. Dickson, Administratrix, et al.
    A demand that the administratrix of a succession, and widow in community, shall file an account, so that the plaintiff, who claims to be the transferree of one of the heirs, may obtain a settlement of the rights involved in the unsettled community and succession, is of a probate character, and hence, irrespective of the amount in dispute, is within the jurisdiction of the parish court.
    A judgment of a United States court, when made the basis of an action in a State court, may have its validity collaterally inquired into by those not parties to it.
    In order to made a valid seizure and sale of the undivided interest of an heir in a succession, it is not necessary to reduce to possession any specific property of the succession.
    If the return of the sheriff, or marshal, shows a seizure of the whole interest in the succession, and his advertisement for sale of the interest includes a complete list of every article of property and every right included in the inventories of the succession, it is sufficient.
    The seizure of the interest of an heir in a succession can not embrace that portion of her interest which the heir has previously received and disposed of.
    In a suit which seeks to subject to seizure the interest of an heir in a succession, a receipt of the heir acknowledging that she had been paid in full for her interest, although not full proof as against third persons, is yet relevant, and therefore admissible in evidence.

      The husband of one of the heirs of a succession can testify for or against a co-heir,, for or against a creditor of the co-heir, touching the latter’s interest in the succession.
    As between appellees the decree of the lower court can not be revised, amended, orr reversed.
    The surviving widow is the legal usufructuary of the estate of her children inherited by them from their father, and as such she cannot be compelled to give-security.
    The interest of an heir in a succession is his share of the residuum, after the payment of the debts of the succession.
    ^PPEAL from the Parish Court of Bossier. Fort, J.

      Land & Taylor, and Thomas J. 8emmes for plaintiff and appellant..

      Nutt & Leonard and H. M. Spofford for defendant.

      J. D. Watkins for defendants.
   The opinion of the court was delivered by

DeBlanc, J.

Michael Dickson died in the parish of Bossier on the-30th of March, 1865, leaving seven children born of his marriage-with Hanna P. Palmer, his surviving widow, to wit:

1. M. A. Dickson, now dead, and represented by four minors, who-are under the tutorship of their mother, Mattie Lipscombe.

2. Mary E. Dickson, the wife, by a first marriage, of J. B. Trigg,, and — by her seco,nd marriage — of General Gideon Pillow, of Tennessee..

3. Victoria H. Dickson, the wife of Captain S. M. Thomas.

4. Emma Dickson, the wife of R. McDowell.

5. Lizzie Dickson.

6. M. Hugh Dickson.

7. Palmer Dickson.

In 1871, Olympe Boisse — the plaintiff — obtained against the said' Mary E. Dickson, in the Circuit Court of the United States, sitting at. New Orleané, a judgment for $4231.40, with interest. In 1872, on the-9th of February, this judgment was recorded in the parish of Bossier,, where the succession of Michael Dickson is opened.

Under an alias writ of ft. fa., issued on the judgment thus obtained, and recorded, a deputy marshal seized — as alleged in his return — “ all the right, title, interest, claim and. demand of the said Mary E. Triggin and to the succession of her father, Michael Dickson, the same being-the undivided one seventh interest in all the movables, immovables, rights and credits belonging to and composing said succession.”

This seizure was made on the 12th of May, 1873, more than eight years after the death of Michael Dickson, fifteen months and three days after plaintiff’s judgment had been recorded in the parish of Bossier.

What — under the alias writ and the assumed seizure, did the deputy-marshal advertise for sale ? “ All the right, title, interest and demand of Mary E. Trigg as an heir in and to the succession of her father* Michael Dickson; said right, title, interest and demand being the undivided one seventh interest in and to the property, as found in the inventories of said succession, on file and of record in the parish of Bossier.” This recital in the advertisement is followed by a long and descriptive list of the property mentioned by the deputy marshal “ as found in the inventories of said succession.”

We know what the deputy marshal alleges that he has seized; we know what he has advertised for sale. After that seizure and that advertisement, what did he sell, what did he adjudicate to ^plaintiff? In his-own words: “the property heretofore seized under the writs.” In the deed from the marshal to Olympe Boisse, he refers' to the property so seized and adjudicated, as that described in the inventories of the succession, and — in that deed — he transferred to said adjudicatee, Mrs. Trigg’s undivided interest in and to the property referred to by him.

As transferree of that interest, plaintiff applied to the parish court of Bossier to compel the widow of Michael Dickson to render an account of her administration of said deceased’s succession, and to give— as usufructuary — the security which — she alleges — is required by law.

Mrs. Mary E. Trigg, through a curator, and the other heirs of Michael Dickson, by the usual citations, were made parties to plaintiff’s suits against the aforesaid widow and administratrix.

On the 7th of February, 1876, the widow excepted to plaintiffs action, on the ground that the sale from the marshal to her is an absolute nullity, because at the date of, and long anterior to said sale, Mrs. Trigg had applied for a discharge in bankruptcy, and — by order of a competent court — all proceedings against her person and property were stayed.

This exception was referred to the merits, and Mrs. Widow Dickson, her daughters Emma and Lizzie, and the curator appointed to Mrs. Pillow, filed an answer in which they deny:

1. That at the date of the sale from the marshal to plaintiff, Mary E. Trigg had any interest in the succession of her father.

2. That under said sale, Olympe Boisse acquired any right authorizing her to demand and require an account of the administration of said estate.

The validity of the sale from the marshal to plaintiff is also disputed on the ground that, even if Mrs. Pillow had not then received more than her share of her father’s succession, no legal seizure was made or attempted to be made of said share.

In addition to these grounds, Mrs. Dickson contends that, as plaintiff’s action is for one seventh of the succession of Michael Dickson, of which she holds possession, and to the usufruct of which she is entitled during her life, and as that seventh interest is worth more than five hundred dollars, she can be disturbed in her possession, but by an action before the District Court; and that — as to this controversy — the parish court was without jurisdiction ratione materice and ratione personas.

These exceptions and defences were not sustained by the lower, court, and Mrs. Dickson ordered to render an account of her administration. In accordance with that order, she filed an account in which she charges herself with the value of the personal property belonging to the community which heretofore existed between her and her late

husband...............................................$45,198.50 and claims for debts paid by her and for which said community

was liable, a deduction of................................$28,812.42 leaving subject to her own right as a partner in the oommu---nity, and as usufructuary, a balance of...................$16,386.08

In the petition to which her account is attached, she alleges thatshe has paid, in addition to the debts carried in said account, large claims due by the aforesaid community, the amounts of which she was unable to ascertain within the time allowed her for a compliance with the order of the court.

She avers — besides—that, up to 1872, the succession of Michael Dickson has paid for and advanced to Mary E. Trigg, in cash, $29,999.74— in kind, two hundred bales of cotton, valued at ten thousand dollars, and which — according to the evidence — were worth and brought more than twice their alleged value.

Hugh and Palmer Dickson, two of the heirs of the deceased, without acknowledging plaintiff’s right to the share of their sister in their parent’s estate, joined in her opposition to their mother’s account, and they pray — with plaiptiff — that their mother be charged with $125,000, the presumed proceeds of sales of cotton, and, in addition, with $274,450, for property received, used and disposed of by her, and which —they state — belonged to the succession of her husband.

Plaintiff’s action is neither the petitory, nor the possessory action. She is not seeking the recognition of a disputed title, the recovery of a contested possession, the immediate enforcement of a claim now demandable. She is simply asking, of the administratrix of the succes- ' sion of Michael Dickson, to place on record the evidence of what the deceased has left, what has become of the property which has passed under her control as administratrix, what she has paid for her husband’s succession or the community, what she holds as usufructuary, a settlement of their respective rights in an unsettled community and unsettled succession. To that extent, her action is essentially of a probate character, and to that extent was properly sustained.

Michael Dickson died rich: his children were educated partly in the United States and partly in Europe; they may still be, but — at his death — they certainly were closely united among themselves, trusted in each other and trusted in their mother. They then believed and had reasons to believe that the fortune inherited and acquired by their parents was amply sufficient for his widow and heirs. That fact, which not only retarded, but prevented a settlement between them, is fully established by the uncontradicted declaration that “ on consultation with the family, the opening of the succession of Michael Dickson was opposed, on the ground that they desired the property and family to remain as their father had left them.”

The succession was thereafter opened, but only on representation that it was indispensable for the purpose of authorizing some one to pay its debts, collect what was due to it, and more particularly to have ginned, baled, shipped, and sold the cotton on hand. In conformity with that representation, Mrs. Dickson was appointed as administratrix of said succession, in the month of September, 1865 ; inventories were taken of its property and assets, and Oapt. Thomas chosen by the administratrix to act as her agent.

That agent prepared the cotton for market and shipped it to New Orleans. There, from the 23d of February, 1866, to the 24th of February, 1868, eight hundred and forty-one bales were sold as belonging to the estate of Michael Dickson, for $87,593.94. A member of the commercial firm by whom it was sold testifies that the United States Revenue tax thereon must have aggregated the sum of $7500. That other and additional costs were incurred, there can be no doubt, for a lot of said cotton was seized by federal officers assisted by federal soldiers, and that seizure must have entailed on the interested parties serious troubles and expenses. Those costs and expenses constitute a charge against the proceeds of the sales of the cotton.

After the death of her father, and before the appointment of her mother as administratrix, Mrs. Mary E. Trigg took from one of the plantations two hundred bales of cotton, which were seized in New Orleans by an agent of. the United States; of the lot thus seized — said agent consented to release one hundred and eighty-eight bales, which were afterwards sold, for account of Mrs. Trigg, by A. F. Dunbar & Co. From that sale she realized, after payment of all charges, the sum of $19,526.60, which — added to the advances and payments made to and for her, $29,999.74, gives a total of $49,526.34, received by her from her father’s succession, before plaintiff had obtained a judgment against her, before the seizure by plaintiff of her hereditary rights, and — as a matter of course — before plaintiff had acquired any title to her share in her parent’s succession.

Three of the defendants, besides Mrs. Trigg, contend that the title relied upon by plaintiff is an absolute nullity. If it were, plaintiff replies, it is derived from the execution of a judgment rendered by a federal court, and its validity cannot be inquired into either by or before a State tribunal. In this, she is certainly mistaken. That judgment is not binding on those who were not parties to it, and — as it is made the basis of her action, its validity may-collaterally be inquired into, as— otherwise — the State tribunal would have had to suspend its proceedings, in order to await the trial by and adjudication of the federal court on-only one of the branches of an entire litigation.

In this case, which of the two tribunals has cognizance of the-subject matter? It is not the federal, it is the State court, and that court alone can, legally, pass upon and determine every branch, every incident of this controversy. This is indisputable. Plaintiff claims under a seizure by, and a sale from the marshal. Defendants deny the fact of this seizure, the validity of the sale. Must that fraction of the suit be dissevered from the main action, and submitted to the Circuit Court of the United States ? Such a construction would destroy the indivisibility of the action, and compel a strange retailing by courts of dissimilar jurisdictions, of separate decisions on distinct branches of an indivisible suit. This position is not sustained by any law, any jurisprudence.

8 L. R. 459. 11 L. R. 384, 390.

Is the title from the United States marshal to Olympe Boisse a valid title? Several of the defendants contest both its validity and its existence. They allege that, on the 21 of August 1873, the day mentioned in the return on the writ as that on which Mrs. Trigg’s interest in her father’s estate was adjudicated to plaintiff, the marshal had no writ in his hands, and was without authority to sell. This objection is not-supported by the evidence adduced on the trial: the federal officers proceeded under a writ regular in substance and in form. '

Did the officers of the federal court make a legal seizure of the rights adjudicated to plaintiff? On the first perusal of their proceedings, the impression left on the mind is that they did not. Their return certifies that one of them “ seized and took into possession the title, interest, claim and demand of Mrs. Trigg, in and to the succession of her father, the same being the one undivided seventh in all the movables, immovables, rights and credits belonging to and composing said succession.”

In their advertisement of the sale, they added to that description that the interest so seized was “ Mrs. Trigg’s interest in and to the property as found in the inventories of the succession of Michael Dickson, on file and of record in the parish of Bossier,” and then gave a complete list of every article of property and every right included in said inventories. In the deed from the marshal to plaintiff, he transferred to her “ Mrs. Trigg’s interest in the property heretofore seized under the writ, and described in said inventories.”

There was no actual seizure of any specific property, no seizure of either land, mules, cattle, corn, bacon or fodder, which at that time had partly perished or been disposed of, but a seizure of Mrs. Trigg’s interest in her parent’s estate, and that interest was not, could not have been, as-stated by the deputy marshal, reduced to possession. Does that inconsiderate statement vitiate the advertisement and the sale ? It does not. Had it been omitted, were it now stricken out, and disregarding it — as we do — the fact remains “ that Mrs. Trigg’s inheritance was seized, advertised for sale and sold.”

To give to the public and to the bidders a clue to the value of the-property seized and advertised for sale, it was proper to publish a list of said property, to mention the nature of the rights, interest, claims and demands which had been levied upon. An inheritance consists, not only of rights, but of liabilities, and — as far as practicable — when an inheritance is seized- — the amount of its liabilities should be ascertained and' announced, in order to assist in its appraisement, warn purchasers, and', realize its value.

4 A. 295.

The creditor can and should seize the entire interest of the heir in-the succession: but can he seize what the heir has previously disposed' of, what has passed to third parties, what has ceased to exist ? Can-that creditor, more than eight years after the opening of the succession, proceed to seize, sell, buy and claim — in whatever hands they may be— every article of property, every one of the rights which composed the succession, when it was opened ? He cannot.

In support of that unreasonable proposition, we are referred to the decision of this' court in the celebrated ease of Yirginie Ternant against Evariste Boudreau — 6 R. R. p. 488 — in which it was held that, because Ternant had purchased Boudreau’s interest in the succession of DorotheaLegros, the wife of the first, the mother of the other, Ternant, by virtue of that sale, was entitled to diamonds and ornaments of gold, which had been deposited in the coffin which contained the remains of the wife- and mother, when those diamonds and ornaments were recovered irons the felons who had desecrated the tomb and robbed from the coffin. •

- Between plaintiff’s case and that relied upon by her counsel, there-is a marked difference. Boudreau sold at private sale, immediately after the death of his mother. Imagining that the planks of the coffin, •the wall of the tomb, excluded from his contract what he and Ternant had therein deposited, or rather not thinking at all of the jewels which— under their own instructions — were sealed against the effects of any contract, he sold — without exception — his hereditary rights in his mother’s succession. Those of Mrs. Trigg in her father’s estate, were seized when ? More than eight years after the death of her father, more than eight years after she had acquired the power of disposing of her inheritance, more than eight years after she had taken and disposed of at least a considerable portion of that inheritance.

Here, we are told by counsel that “ a succession is an immovable, and that — to affect third parties — the transfer of a share in a succession must be made by a written act, recorded as the law prescribes.” This is an extraordinary mistake, which in the whole course of our own jurisprudence, is sustained by only one, a dissenting opinion, which stands almost unnoticed in our esteemed reports. The action to recover an entire succession is classed, in our Code, as an immovable action, from the object to which it applies — but the succession, as such, is not an immovable. “ If it were,” as remarked by Mr. Justice Spofford, if we could disregard the elements which enter into its composition, we should be forced to the conclusion that, when it is entirely composed of personal effects — not one of which could be separately mortgaged— ■the heir could yet mortgage the ideal being representing those effects.”

12 A. p. 684.

That construction is sanctioned by the letter and spirit of our legislation : it provides that "tutors of minors and curators of persons interdicted have the right to institute in their names suits for the partition of the effects of successions, whether movable or immovable, falling to said minors or interdicted persons.” In the English text, the qualification “ movable and immovable ” might be applied to the word “ effects.” 'The French text repels such an interpretation ; “ les tuteurs des mineurs et les curateurs des interdits ont le droit de provoquer, en leur noms, le partage des successions — soil mobilibres, soit immobilieres, auxquelles ■ces mineurs ou interdits sont appelés.”

Code of 1825, Article 1235.

“Ainsi — said Marcadé — que l’on entende par action la rédamation méme, la demande en justice — ce qui est exact — soit que l’on entende le droit d’obtenir jugement et résultant de la reclamation, ce qui serait inexact, on n’arrivera jamais a trouver, dans Faction, un bien spécial et distinct du droit qui a engendré cette action, et sur lequel le jugement' a prononcó ou doit prononcer. L’action ne peut pas étre un autre bien que le droit qui la produit.” ' '

Marcadé, Yol. 2, p. 361.

As long as a succession remains opened and undivided, as long as it does not cease to be a succession, before its acceptance, or during a litigation — between contending parties — as to whom it shall descend, a succession is an entirety. The creditors of those to whom it fell, can and should seize, before the partition, not the separate interest of their debtors in any separate article oí property, but tbeir undivided share of the entirety, their inheritance, with its rights and its liabilities. When the title to the succession is not disputed, as soon as it is accepted, either expressly or impliedly, the succession disappears and the co-heirs become co-proprietors of movables and immovables.

In the case already cited by us, Chief Justice Merrick held “that when the heir is present and recognized, or when the creditors have accepted the succession for him by the seizure of his interest in it, the succession — even if it be under administration — must be considered as in possession of the heir.” At the death of Michael Dickson, Mrs. Trigg was present, recognized as one of his heirs, accepted his succession, tacitly at least, and disposed — if not of the whole — of a considerable portion of her share in the same, and this, several years before plaintiff’s debt had accrued against her.

In vain would it be contended that plaintiff’s right to inquire into and annul any real transaction between Mrs. Trigg and her parents, accrued before plaintiff became a creditor of Mrs. Trigg, before the surviving parent was legally informed — by the seizure or otherwise — of the existence of appellant’s claim, and Mrs. Widow Dickson should have been allowed to prove what she has paid to, what was taken and received by her daughter from the estate of her father before the seizure of her daughter’s inheritance.

As urged by plaintiff’s counsel, from the date of her husband’s death, Mrs. Dickson was entitled to the usufruct of his share in the community of acquets and gains; but, when did she claim and exercise the right to which she was thus entitled? Was it at the death of her husband ? It was not — for, then, the mutual understanding, the expressed intention of the mother and the children, was that the property should continue to be held in common between them, “ that property and family should remain as the father had left them.” Under that understanding, the heirs of age took and were allowed what they wished, the minors were sent to school, first in the State, afterwards in Europe.

In an instrument attached to one of the many bills of exception which swell the record, Mrs. Trigg acknowledged — on the 10th of Jan.uary, 1867, that she had settled with her mother for her rights in her father’s estate, and that she had been paid in full for her interest as an heir. In regard to plaintiff — as a third party — this instrument was not —of itself — an absolute proof of the verity of its naked and unsworn statements; but — coupled with the evidence which the widow attempted to adduce to support its contents, it was relevant to, and an important part of the proof authorized by the issues presented. It was not the evidence of a transfer of any incorporeal right, of any personal or real property, but an acknowledgment, by Mrs. Trigg, that she had received, in cash, in kind, in some way, an amount which was, or which she considered equal to her share in the succession of Michael Dickson, and— for that legitimate purpose, it should have been admitted' by the lower •court.

Plaintiff’s counsel objected on the trial, to the testimony of Oapt. S. M. Thomas, the husband of one of the heirs. It is true that he could not have been called upon to testify for or against the interest of his wife, but he could certainly testify for or against the interest of the mother, sisters and brothers of his wife, for or against the creditor of Mrs. Trigg, and — so far as concerns Mrs. Dickson and plaintiff, the only (parties who can claim, in this court, the maintenance, reversal or amendment of the judgment appealed from, his testimony was properly received.

When she submitted to the court her account as administratrix of her husband’s succession, Mrs. Widow Dickson reserved the right to -thereafter show that she had expended and paid, for said estate, large .amounts not included in said account, and her reservation was sanctioned by the decree appealed from. This was irregular. If Mrs. Diek■son was unable to ascertain, within the delay fixed by the judge, the amount of those expenses and payments, she should have applied for and been allowed an additional delay to procure that necessary information. We can not, however, deprive her of the right so reserved.

In this case, the only appellant is Olympe B\ isse: all the other parties are appellees — and, as between the latter, the decree of the lower •court can neither be revised, amended or reversed. Eor that reason, it is useless to discuss, in detail, the balance of the bill of exception: for the purpose of the revision of the only branch of this controversy which we can determine, they are virtually decided by the views already expressed.

We are unable to concur with the parish judge in all of his conclusions. He held that Mrs. Widow Dickson is chargeable with the whole of the property of the succession, which — he considers — was left in her possession at the death of her husband. It is shown that at that time — by consent of the interested parties — the whole of said property remained, as common property, in the possession of the widow and of the heirs of age — and, since then — where is it? It partly passed, and for a nominal price — in the possession of the children who have coalesced with plaintiff, in her action against their mother.

The evidence does not support the assertion that Mrs. Widow Dick•son disposed of twelve hundred bales of cotton belonging to the community, and that she was liable for their value, fixed by the lower court at one hundred and thirty-eight thousand dollars. Of the cotton raised during the war on the three plantations — less that which was stolen, contributed to the Confederate government, or taken by Mrs. Trigg— every bale was shipped to the city, and consigned to only one commission house — there sold for account of the estate of Michael Dickson, and every cent of the proceeds of the sale carried to the credit of said estate. Does not this important fact corroborate the declaration “ that •the family and property were to remain as the father had left them ? ”

As regards said cotton, its value and the number of bales shipped and disposed of, Mrs. Dickson’s liability — either as administratrix or usufructuary — is fixed, not by the doubtful estimates made several years after the sale and at hundreds of miles from the market to which it was .sent, but by the best, the most satisfactory evidence — the account rend-1 «red by the commission house to which it was consigned and by whom it was sold. If any more was raised, ginned, baled, shipped and sold, how imagine that the heirs or the creditor would have failed to discover ?

When, after the days of abundance and luxury, the expensive excursions at the North and in Europe, the brilliant and costly festivities of the city, trouble and anxiety crossed the threshold of the home filled— until then — with all that fashion commanded and gold could procure, when the last check was drawn on the last fund, Mrs. Dickson who had been parsimonious but to her and prodigal towards her children, remained — according to the evidence — what she seems to have ever been, an affectionate mother. To her sons Palmer and Hugh, she gave what they asked : they proposed to lease one half of one of the plantations. She leased it to them for five years, at the rate of fifty dollars per annum, and — on the trial — offered to prove, by one of the lessees, that said rent was worth fifty times the price agreed upon.

This, she was not allowed to do : but, as neither she nor her children appealed, it is useless to decide whether that evidence was properly or improperly rejected. We refer to it only so far as it bears on that branch of the controversy which is before us, as a presumption that Mrs. Dickson was not disposed to favor any one of her children to the detriment of the others, and that — at a period of distress and need — she was striving to do for the youngest what, in time of affluence and prosperity, she has done for Mrs. Trigg.

The cotton and funds left at the death of Michael Dickson, did not —at that date — pass into the exclusive possession and become the absolute property of the widow, as usufructuary, but — by mutual agreement — remained, until they were disposed of and exhausted, in possession of the widow and heirs, and if — at the date of plaintiff’s seizure — Mrs. Trigg had already taken her share of said cotton and funds, her creditor can not justly expect to be allowed to again exercise an extinguished, a satisfied right. If — as alleged — she took more than her share, she is liable — for the excess — to her mother and co-heirs, and not, as urged, to her mother alone. If, at the end of her mother’s usufruct, there remains unsettled and unsatisfied any portion of Mrs. Trigg’s inheritance from her father’s estate, that portion, with its charges— whatever they may be, shall — at that date — pass to plaintiff, as.Mrs. Trigg’s assignee.

We can not assume original jurisdiction of any part of this case, and order an inventory, to fix — as between these parties — the nature and amount of what was seized from the heir and bought by the creditor, of what — at that time, theft, war and overflows had left of the succession of Michael Dickson ; but we can and do suggest the important necessity of such an inventory, or of some proceeding, to preserve the evidence of what remained of said succession, of what plaintiff may hereafter be entitled to, and of any charges outranking her claim, and which then affected the acquired inheritance.

To establish those facts, the marshal’s seizure, his return and his deed are as insufficient as incorrect.

There remains to be decided whether Mrs. Dickson — as usufructuary —is or is not bound to give security to her children, or to plaintiff, as assignee of the hereditary rights of her daughter ? She is not. Under our Code, fathers and mothers have during their marriage — the enjoyment of the estate of their children. After the dissolution of the marriage, by the death of one of the parties, the survivor — under the statute of the 25th of March, 1844 — has the right to hold in usufruct, during his or her natural life, so much of the share of the deceased in the .community property as may be inherited by the issue of their marriage. In either case, the usufruct so granted to the parents is a legal one, and the Code specially provides: “ that neither the father nor the mother having the legal usufruct of the estate of their children is required to give security.”

R. C. 0. 223, 540, 541, 560.

Acts of 1844, No. 152.

The distinctions between the usufruct conferred by the Oodo, and that conferred by the statute, are plain, palpable distinctions. The first is established on only the estate acquired by the child during his parent’s marriage, and otherwise than by inheritance from them: that one lasts until the majority or emancipation of the child. The other is established on property which — before the Statute of 1844, was not subject to that usufruct, which- — up to 1844 — the parents held as tutor or tutrix, or which passed to the child — when he was of age — free from that charge. That usufruct does not cease at the emancipation or majority of the child, but only when the parent dies or enters into a second marriage. That Statute adds to the rights, not to the obligations of a favored class of usufructuaries.

’Had Mrs. Trigg retained her title to a share in the community, she could not have required from her moth er — as usufructuary of that share— the security which, on application of Mrs. Trigg’s creditor — her mother was ordered to furnish. That condition is not imposed by the Statute, and it is expressly excluded by the Code. A stranger may acquire the inheritance, the creditor may dispossess the child, but whatever the changes that may happen in the ownership of the property, the parent’s usufruct, until the parent’s death, remains linked to the divested title, to the transferred inheritance.

R. C. C. 617.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court in favor of Olympe Boisse and against Hannah P. Dickson, be and the same is hereby annulled, avoided and reversed, and this case remanded to be proceeded with — as between said parties— according to law and the foregoing opinion: the costs of the appeal to be paid by Olympe Boisse.

Mr. Justice Egan took no part in the decision.

Mr. Justice Egan having been consulted in regard to the settlement of the succession of Dickson by some of the heirs, to the knowledge of counsel on both sides, reserved the right to recuse himself at any stage of this case at the time it was originally heard, and having taken no part either in the decision already rendered or in granting a rehearing, now recuses himself in this case.

On Rehearing.

Manning, O. J.

The crucial question, the answer to which determines this controversy, is — what did the Marshal seize and sell, and what did the plaintiff acquire by the adjudication to her ? ■ ■

He did not seize the share and interest of Mrs. Trigg in any particular tract of land, or in any specific movable, nor did he seize her share of the aggregate of all the lands, or her portion of all the movables. It was her interest in the succession as an entirety that was seized, and that is, her share of the residuum, which can only be known after all the debts, charges, and liabilities are deducted from all the assets and property. The thing seized was intangible, incorporeal — an ideal and judicial being or object, which might prove to be valuable or valueless according to circumstances. It might be that future developments would show that there is no residuum, or that if there were a residuum, Mrs. Trigg had already received, used, and consumed her portion of it.

This becomes apparent, if it needs any demonstration, by considering what object, thing, or property is appraised when one is proceeding to sell the undivided share of an heir in a succession. It would not be possible to separate each piece of property from the other, to appraise it, and thus assume the heir’s interest in it to be a certain proportion of its value. Nor would it answer to pursue that mode, and adopt that rule, with all the several kinds of property, and aggregate them all, and say the heir’s interest in the whole is a certain proportion, unless you also estimate the deductions that are to be made. Practically, it may be necessary to pursue this, or some like method, in order to ascertain a value for the residuum, for you must know the value of each property before you can know the value of the aggregate of them all, and you must know what deductions are to be made therefrom, before you can know what is the residuum, or any part thereof. But that is only a mode of arriving at the result — a means to an end — processes of calculation to help one to ascertain a determinate sum — stepping stones by using which you reach a spot where there is sure footing.

The arithmetical machinery which you use to enable you understandingly to appraise so complex an object of seizure as an undivided and unsettled interest in a succession, must not make you confound the object that is finally appraised with the several and different objects, the value of which you have had to consider, before you could ascertain the value of that resultant of them all. You must necessarily know what is the value of these tangible objects — the various pieces of property, the various kinds of assets, rights, etc., the various charges and diminutions, etc. — before you can know at what sum to appraise this intangible object, which has been seized.

■ The plaintiff’s cpunsel lose sight of this when in their brief for a rehearing, they treat the receipt or acquittance of Mrs. Trigg'to her mother as a conveyance or attempted conveyance of land. In both cases — the thing seized, and the thing acknowledged to have been received — is a certain share or interest in an incorporeal right.

If a succession is composed of many kinds of property — lands, movables, rights and credits, money — and heirs, who are competent to act, partition it among themselves, it cannot be doubted that one might take her share wholly in money, and, another wholly in land, or other property. Mrs. Trigg, whether from choice or necessity, took hers wholly in money, or cotton which immediately produced money. It is not yet established with absolute, certainty that she has received the whole of her share, but it is probable that such is the fact. Her receipt to her mother, the administratrix of the estate, and the usufructuary of one half of the property, is in full payment, and it appears to be conceded in argument that if what she has received is chargeable to her as a part of her share, that it will turn out to be even more than her portion of the succession.

If then she had already received her full share of the succession, whether in one kind or in many kinds of property, before the seizure was made by the marshal, what did the plaintiff buy but the right her debtor had at the time of seizure ? What rights did the plaintiff aoquire by the purchase, other than those her debtor already had ? And if Mrs. Trigg, in a forced partition at her instance of the succession property, and a compulsory account provoked by her of the administration, would be compelled to submit to having her share reduced by the sums she had already received, and if it turned out that she had received all, and would not be permitted to take more — why should not the plaintiff be bound to do the same, seeing that she could do only that, and no more, which Mrs. Trigg could do, whose rights she had acquired, and in whose place and stead quoad the succession she stood.

Our opinion is that the plaintiff has acquired only such interest as Mrs. Trigg, now Mrs. Pillow, had in the succession of her father at the time the seizure was made, and if she had reoeived already a sum of money, or property which produced money, equal to the value of her share of the succession, then she had no interest further therein.

We are asked to put an end to this controversy by a present decree, but there is not complete evidence in the record what the value of the succession was at the time of the seizure of Mrs. Trigg’s interest, and although she has receipted to the administratrix for the whole of her interest, the verity, good faith, and correctness of that receipt is open to attack by the plaintiff, who may be able to establish that, over and above the sums and property already received by Mrs. Trigg, there is still something now coming to her as an heir of her father. If there be anything still due her, the plaintiff is entitled to it. If there is not anything due her, the plaintiff has acquired nothing by her purchase. We are compelled to remand the case. Therefore

It is ordered and adjudged that our former decree remain undisturbed.

Mr. Justice Euan recused himself in this case.


author: Spencer, J. DeBlano, J.

text:
    No. 7100.
    State vs. Jack Toby.
    A service of tbe duly certified list of the jurors for theiterm at which the accused was tried, made on the aocused during that term, and made two weeks before his trial, is a sufficient compliance with the law requiring such service to be made two days before the trial.
    A defendant on trial for burglary and grand larceny, has no right to introduce in evidence his own voluntary statement taken before the magistrate. Decision in State vs. Vandergriff, 28 Annual 95 affirmed.
    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.

      Q. N. Ogden, Attorney General for the State.

      Wm. Heed Mills, for the defendant.
   The opinion of the court was delivered by

Spencer, J.

The defendant was convicted of burglary and grand larceny. His counsel relies on two grounds for reversal of the sentence — ■

• First — On the ground that no duly certified list of the jurors for the December term was ever served upon him. There were two services of said list upon him — one on the 5th December, and one on the 14th December. His trial commenced on the 19th. The last copy served has no visible impress of the seal of the Court. The former has, but not a very distinct one. It is objected that neither is sufficient: and that even if the copy served on the 5th be properly sealed, it was not good for a trial commencing on the 19th, since the law says the service must be made “ two days before the trial.” We think that if the accused had two weeks instead of two days, to inform himself about the panel, he ought to be satisfied. The greater delay includes the less.

Second — The second exception is taken to the refusal of the Judge to allow the accused to introduce in evidence his own voluntary statement taken before the magistrate. We have been earnestly pressed to reconsider this question, and to overrule the ease of “ State vs. Yandergriff,” 23 A. 95, which decides against its admissibility. A careful consideration leads us to the conclusion that the decision referred to is correct, and rightly interprets the legislative will.

It is therefore ordered and decreed that the judgment appealed from be affirmed.

Dissenting Opinion.

DeBlano, J.

The voluntary declaration of an accused party, made to, received and certified by a judge or magistrate, “ shall he evidence before the grand and petit jury.” These are the words of the law; they are not restrictive ; and — to hold that they mean “ evidence for exclusively the State, against exclusively the accused is to restrict — howsoever plausibly — their clear and indivisible meaning.

If the only evidence which the prisoner is allowed and induced to give, can be used but against him and when he confesses the commission of a crime, and never in his favor, when it tends to disprove or justify the commission, is he not — indirectly aj least — and under that construction of law — impelled, by a legislative artifice, to become a State witness and to give evidence against himself ?

His unsworn declaration may be entitled to little or no credit, may be invariably suspected ; but — nevertheless—that which, in his own defence, he could not be denied the privilege of stating orally, he can state in writing to the jury. Otherwise, no prisoner can be induced or expected to make a voluntary declaration, to unsheath a weapon, the handle of which would always be in the grasp of the prosecuting attorney, and the point to his breast.

I respectfully dissent from the opinion and decree of the majority.

Make, J. I concur in this.

Rehearing refused.


author: Manning, C. J. White, J.

text:
    No. 7408.
    Interdiction of Scott Watson. Intervention of Mrs. Weatherly, et al.
    The interdiction of a person will not be pronounced on the evidence of two medical experts, neither of whom had ever conversed with him until the day before the filing of their report of his condition, and who had had no opportunity to test his mental condition.
    Mere weakness of mind in the defendant will not warrant a decree of interdiction when such a decree is not asked for by any of his relatives, and when, in view of the evidence adduced, it does not appear that the interdiction is necessary, either for the protection of his person, or his property.
    ^PPEAL from the Parish Court, Tensas, Bondurant, J.

      Beeve Lewis .and E. Howard Farrar, curator for Scott Watson, •defendant and appellant.

      J. W. Montgomery, Steele & Garrett forintervenors, appellees.
   The opinion of the court was delivered by

Manning, C. J.

Scott Watson, the elder, died in 1859, leaving a widow and three minor children, the youngest of whom died shortly afterwards. His estate was valuable, consisting chiefly of a cotton plantation in Tensas parish, and he owed no debts. The mother was confirmed as natural tutrix of the children, and an inventory was made of the succession property. In 1860, she married John R. Weatherly, having first convoked a family meeting, which advised that she be retained as natural tutrix of her children, but that she must give a bond according to the requirements of law relative to dative tutors, and she accordingly executed a bond as tutrix in the sum of one hundred thousand dollars.

The two surviving children of the Watson marriage are a son, now called Scott, whose interdiction 'is now sought, and a daughter, Ida, now Widow Robert Weatherly. In 1866 these children-were taken to France» by their mother to complete their education. Scott was then about nineteen years old, and was a promising youth — ‘ the brightest boy in. school,’ says his cousin as a- witness — ' both mentally and physically sound,’ says another. Two years afterwards, he was brought home in a condition, as is now charged, of mental idiocy and imbecility, and has so remained ever since.

In 1878, the parish judge of Tensas, reciting that Scott Watson is afflicted with a permanent and complete idiocy, and subject to an habitual state of imbecility, to such an extent that he is now and has been for more than ten years entirely unable to take care of his person and property, and that he has real and personal property of great value as well as large sums due him from his mother, and whereas his interdiction has never been solicited by any of his relatives, whose duty was to institute proceedings to that end, and it is made the duty of the judge to pronounce the interdiction ex officio, it was ordered that cause be shewn why the decree should not be made, both by Scott himself, and by an attorney at law who was at once appointed to represent him. The proceeding is taken under art. 38á of the Oivil Code, and is as follows ; — If the person who should be interdicted has no relations and is not married, or if his relations or consort do not act, the interdiction may be solicited by any stranger, or pronounced ex officio by the judge after having heard the counsel of the person whose interdiction is prayed for, whom it shall be the duty of the judge to name, if one be not already named by the party. New No. 391.

E. H. Farrar, Esq., the counsel appointed by the court to represent the proposed interdict, answered by a general denial, and requiring proof of the judge’s allegations. About two weeks thereafter, Scott Watson answered through “ counsel appointed by himself,” as is stated therein, denying that there is any necessity for his interdiction, and praying, should the court decree otherwise, that he be placed under the curatorship of his mother. At the same time, the mother and sister intervened, the former alleging that for many years she has had charge of her son, taking care of him, and protecting him with the attention and solicitude which a mother alone can bestow, and that there is no necessity for the appointment of a curator whereby she will be deprived of the care and supervision of his person. The sister reiterates her mother’s allegations, and charges that the proceedings are wholly unnecessary, and are the result of impertinent and officious intermeddling by outsiders, who have no interest in the matters involved. She further avers that she is her brother’s presumptive heir, as her mother is his forced heir, and she desires the appointment of her mother as curatrix, if one be deemed necessary.

Upon these pleadings the case was tried, and judgment of interdiction was pronounced.

We have heretofore had occasion to consider the difference between idiocy, imbecility, and insanity, and to define these three mental conditions. Francke’s case, 29 Annual, 302. Insanity is not attributed to the subject of the present proceedings. His interdiction is demanded because of idiocy and imbecility. The allegation is, that he is “ afflicted with a permanent and complete idiocy, and is subject to an habituaj state of imbecility.” It is very clear that he is not an idiot. Idiocy is marked by congenital deficiency of the mental faculties, says a. writer on this subject. 2 Taylor’s Med. Jurisp. 502. The first appearance of mental lesion was about the time he had attained majority, and while pursuing his studies in France, with the same promise of a brilliant future that his school-fellows had noticed in his early youth. The cause for the interdiction must be imbecility.

Two physioians were appointed to examine him. One of them had never conversed with him ‘ before yesterday,’ the day of the examination, which lasted an hour and a half. He describes him as very weak both in body and mind, having comparatively no mind, and would suppose from the nature of the disease, that he would at times be violent, although that form of the disease is not so apt to produce violence as some other forms — thinks he would only be violent when irritated or interfered with — the disease is rather an atrophy of the mind than melancholia, and is incurable. The other physician had known Watson longer — dressed a wound in his hand once, but had little or no conversation with him at the time, and consequently could form no idea of his mental condition, and this was the extent of his intercourse with him until the examination of ‘ yesterday’ — says he was quiet on both occasions, and judging from his condition yesterday, should think he never had mind enough to take care of his person and property. The first physician says that Watson has not now mind enough to take care of his person or property. They both join in a formal report that Watson has that form of insanity described in medical jurisprudence as dementia.

It is manifest that if the necessity for interdiction rests solely upon the testimony of the two medical experts, no sufficient cause is shewn for a decree which entails such serious consequences upon the subject of it. Neither of them had had opportunity to test the mental condition of the imbecile. Neither of them had ever conversed with him except during the examination of the previous day, and the opportunities for forming an opinion upon one’s permanent mental condition, which often displays deceptive manifestations, were conspicuously meagre.

Other testimony is in the record, from which we gain much information of his condition. Mr. Clinton, an intelligent lawyer, speaks from knowledge of Watson in his earlier youth, and before there was any mental lesion, as well as from personal observation of him since. The mother and sister also testified. We gather from the evidence that Watson is in the same condition as was Mrs. Erancke. Early after his mental disturbance was manifested, he was submitted to the late Dr. Warren Stone for examination, who advised that restraint of any kind should be avoidéd, and the largest liberty allowed to him. This course was pursued, and with apparent benefit. He ate with the family — slept in a chamber adjoining his mother’s — had perfect freedom of action, and required only the supervision that a child does. The only vicious or violent propensity he exhibits is cutting his clothes, but he is tractable and never wild. Some years after Dr. Stone’s examination, he was placed in a Retreat near Baltimore, but was removed therefrom by the advice of the physician in charge of it, who saw that even a partial restraint was hurtful, and commended Mrs. Weatherly to renew her former personal supervision and control of him. Last summer he was sent to a place in Mississippi in the highlands, and remained until late in the autumn, and returned in better condition than he has exhibited since his malady began. Everywhere he manifests a very warm love for his mother, and submits himself readily to her direction. “ It would be more than cruel, says the sympathetic sister, to take him away from her. It would be death.”

The matter for our decision now is, not whether he shall be taken away from his mother, but whether he is in that condition which requires the interposition of a court to pronounce his interdiction. We do not think he is in such condition.

The case is almost a complete parallel to that of Mrs. Erancke. The malady of both is the same. Neither is able to take care of his person or of his property. Restraint, if prolonged, would unquestionably in either case produce dementia, and the experiment, tried with both, exhibited the same result.

We infer from a part of the testimony, that the fact that neither Mrs. Weatherly nor her husband had ever filed an account of Scott and Ida Watson’s property and revenues, is supposed to create the necessity for interdicting the former. As a consequence of this, and to rebut the presumption of mal-appropriation or mismanagement of the property, it is in evidence that the property is managed with unusual skill and judgment, and it is worthy of remembrance in this aspect of the case that his sister, who has the same interest in the property, does not call for an account, nor allege misappropriation of its revenues, and she, her mother, and the half-brother of the second marriage are the heirs of Scott, and the only persons who could be injured by wasting his revenues, or deteriorating, or injuring his property. If it were otherwise, we should hesitate before pronouncing a sentence, which might incalculably affect the proposed interdict for worse, and could not ameliorate his physical or mental condition. If the lessons of experience, taught by subjecting him to different modes of treatment, and the advice and opinion of those physicians, in whose care he was placed with the special view of ascertaining what was necessary for his well-being, are to be considered, we must conclude that he is not labouring under insanity (which indeed is not charged in the pleadings) but rather that he is afflicted with a permanent feebleness of intellect, which only requires uncongenial treatment to be developed into dementia.

This subject is attracting a large share of the attention of philanthrophists and legists now, and courts are proceeding in such matters with more caution and circumspection than formerly. We perceive no good reason for interdicting this unfortunate man. His person could not be better cared for than it now is by his mother. His property seems to be so little in danger that his co-heir, equally interested with himself, is satisfied with its present management, and those who will inherit it upon his death, are making no complaint. Therefore

It is ordered, and decreed that the judgment of the lower court is avoided and reversed, and that there be now j udgment in favour of the defendant and intervenors, the costs of appeal to be paid by the defendant.

Dissenting Opinion.

White, J.

I cannot agree with the conclusion of the Court in this case, and express my dissent with much hesitancy, but to my mind the proof in the record is so clear and the law applicable to it so free from ambiguity, that I feel compelled by a sense of duty to state the reasons by which my mind has been convinced that the interdiction should be pronounced.

What is the issue before us ? The Parish Judge of Tensas of his own motion, after reciting that it had come to his knowledge that Scott Watson, a resident of his jurisdiction, who was the owner of large estates, was insane and incapable of managing either his person or property, instituted proceedings for his interdiction. To this proceeding the mother and sister of the defendant intervened and resisted the interdiction. Was the action of the Judge warranted by law ? The question does not in my mind admit of discussion in face of the plain text of 0. C. 391, saying: If the person who should be interdicted has no relations and is not married, or if his relations or consort do not act, the interdiction may be solicited by any stranger or pronounced ex offido by the Judge after hearing the counsel of the person whose interdiction is prayed for, whom it shall.bethe duty of the Judge to name, if one be not already named by the party. The question of procedure being thus determined, what is the fact as to insanity vel non ? To my mind there is no doubt of the overwhelming and uncontradicted proof of insanity. To make this obvious, let us examine the proof in the record. What does that proof show ?

The father of Scott Watson died years ago, leaving a widow and three children. The unfortunate subject of this litigation grew up full of promise ; having been sent to school in Prance he was after a short absence brought back, if not a maniac at least a person of insane mind. What do the witnesses say ? Let us examine the testimony of each and every one, so as to leave no room for misconception.

1. Two physicians appointed by the court to examine him both testify and report him as insane, as incompetent to exercise volition, as utterly incapable of taking charge of his person or property.

2. Alex. Reed, who had been employed to take care of him, describes him as a person of unsound mind, as an insane person, unable to take care of his person and his property.

3. Wm. Watson, who had been employed to take charge of the young man on a trip made by him to Mississippi, describes him as insane, as at times frantic, at others quiet, but never either rational or capable of taking care of his person or his property.

4. Robert Murdock, an old resident of the parish, who has known him from his boyhood, testifies that he is insane and completely incapable of volition.

5. Eli Tullis, who has known him from birth, testifies to the same effect.

6. J. T. Watson, a cousin, describes him as an insane man, never in his moments of partial tranquillity able to take care of his person or property. In speaking of his condition, he says: He is perfectly wild at times; he has tried to kill his mother, and she has so told me.” The Parish Judge testifies to the insanity from personal knowledge ; says he was impelled to institute the proceedings from a sense of duty, having seen the young man in an apparently neglected, condition. Such is the proof for interdiction; could it be plainer ? Is it in any way rebutted ? I think not. The mother and sister, who oppose the interdiction, both in their testimony admit the insanity, but think the insane young man will be better eared for by his mother than any other person. T. P. Clinton, Esq., testifies to an interview, or rather a meeting with him ; he mentions him as then reasonably quiet. He concludes his testimony by saying r “ He is certainly incapable of managing his own estate, and requires more supervision than a ten-year old boy.” Such is every particle of testimony in the record. If it does not establish insanity beyond peradventuré, what could prove it ? Whatisthelaw ? “No person above the age of majority who is subject to an habitual state of imbecility, insanity, or madness, shall be allowed to take care of his person and administer his estate, although such person shall at times appear to have the possession of his reason.” O. 0.389. If the defendant be insane, how can the mandatory provisions of the law be avoided without substituting the volition of the judge for the will of the law-maker ? True, the mother does not desire the interdiction, but that her wish or desire ought not to control is rendered, it seems to me, self-evident by keeping in mind the words shall be allowed, already referred to, and by considering that even a stranger may provoke interdiction, if the relatives do not act. But, it is said, if the defendant is in the care of his mother, no interest of his person requires his interdiction. The wise provisions of the Code as I read them are placed on no such narrow basis. They contemplate giving to the unfortunate person who may be bereft of reason the benefit of every safe-guard, without regard to individuals or relationship ; they provide the inflexible and disinterested will of the law, as a shield, as a protection where the natural will no longer exists. Their policy is •obvious, founded in a knowledge of human nature, the result of the accumulated experience of all ages, to obviate all danger of temptation ; they provide that the person whose insanity is such as to render him incapable of taking charge of his person or property is to be directed not by any one or two of his relations who might in any given case be' interested in the perpetuation of this insanity, but that the courts shall with the family meeting guard his person and administer his property. In the present case it may be that the disease is incurable, and that its victim will be happier in the hands of his mother than elsewhere. Does it follow that a decree of interdiction will remove him ? He is the owner of a large and fruitful estate, and the law has wisely and humanely provided that the revenues of the property of the interdict shall be expended in operating his cure or in mitigating his sufferings. The very object of the law in interdicting is to have such revenues applied to these desirable ends under the eye of the court, so that the person who would enjoy the revenues if no interdiction were allowed is not to judge of the necessity of their application. It is for this reason that the books speak of the decree of interdiction as a merciful decree, as one guaranteeing to the sufferer every care and hope of cure, free from the danger which might otherwise flow from the selfishness, the depravity, the interested motives of individuals. Aside, however, from these considerations, the interdiction is in my judgment required to protect the defendant from being defrauded by any misguided exercise of his now diseased will. As by majority the law presumes capacity to contract, so it continues the presumption of capacity until destroyed by the presumption juris et de jure, the decree of interdiction. If to-morrow we were called upon to enforce against the defendant a contract by which he had divested himself of his heritage, would we not with the facts in this record recoil from so doing ? How, however, could we escape it if' we now fail to recognize that disordered will from which incapacity results ? It is from these reasons that Marcadé says the law-maker has said a person deprived of reason “ shall be interdicted,” not only as a benefit to himself, but also as a protection to society, to avoid the pitiable spectacle of courts being made'the instruments of wrong and injustice. Whatever may be the correctness of the foregoing views as to the necessity of interdiction for the sake of the person and the will of the defendant, in my mind they, even if incorrect, would not obviate the necessity of inter" diction. The large estate of the defendant is shown to be in the hands of his step-father, and whilst there is a statement that the real estate appears to be in a flourishing condition, there is nothing whatever to show what is done with its revenues, or what has become of the personal estate, which was very large. This whole estate, both personal and real, in my opinion can and ought to be administered as the law requires. It is said that his mother and sister are his presumptive heirs, and they do not complain, hence there is no reason for judicial action. The law, however, is not so harsh as to consider the light of a darkened mind as gone out forever ; it contemplates the possibility of a cure, and it acts with that object in view. It does not consider an unfortunate sufferer dead by anticipation, so that his heirs can take his property and administer it without bond, without supervision, without responsibility. The presumptive heirs, were such not the case, would be interested in perpetuating the mental disturbance. The mother of the young man has remarried ; at the date of the second marriage the family meeting retained her in the tutorship upon her giving bond as <a dative tutor. Years have gone away, the revenues of the son’s estate have year by year been acquired. How disbursed is a question upon which the record is silent, •and which, in my opinion, should be answered by an account rendered with the formalities required by law. Eor the sake of the defendant for that of his person, his will, and his property, as also for society itself I think the judgment of interdiction pronounced below should be affirmed.

Seencer, J. I concur in the opinion and conclusion of Mr. Justice ’White.


author: Make, J.

text:
    No. 7375.
    G. B. Shields vs. Pipes, Tax Collector.
    In the absence of allegation and proof to the contrary, it will be presumed that the ordinances of a police jury which authorized th,e construction of necessary public works, provided for the payment of the debt thus incurred, as required by law.
    Where a valid judgment against a police jury orders the latter to levy and collect a tax sufficient to pay the amount called for by the judgment, in accordance with * the law then in existence authorizing the police jury to impose such a tax, a subsequent act of the Legislature repealing the law authorizing the said tax, and substituting another law which makes no provision for paying the judgment, which is still partly unsatisfied, divests the vested rights of the judgment creditor, and is therefore unconstitutional.
    The parish court is without jurisdiction to enjoin the execution of a judgment of the United States Court, or of a District Court of the State.
    The tax collector is incapable of standing in judgment alone, in a suit by a taxpayer to enjoin the collection of a tax levied to pay a tax. The judgment creditor. for whose benefit the tax was laid, must be made a party to the suit.
    ^PPEAL from the Parish Court of Concordia, Weng, J.

      Wade B. Young for plaintiff and appellant.

      Will. T. Martin and 0. Mayo for defendant and appellee.
   The opinion of the court was delivered by

Make, J.

In 1874 Welden recovered judgment, in the United States Cirouit Court, against the Police Jury of Concordia parish, on obligations for work done, before 1861, in building a bridge, a jail, and other public edifices. This judgment was the result of a compromise by which the debt was diminished more than one third: the interest was reduced from eight to five per cent; and the payments were divided into five equal annual instalments.

In accordance with the then existing law, act of 1869, No. 69, Rev. Stats, sections 2628, 29, 30, it was decreed that the Police Jury levy the necessary tax to meet these instalments as they should become exigible: and, as thus rendered, the judgment was formally and fully consented to and ratified by ordinances of the Police Jury.” The tax was levied and applied to the judgment until 1878, when, in consequence of the act No. 96, approved April 20, 1877, the Police Jury refused to levy it. Thereupon the judgment creditor proceeded in the Circuit Court, by mandamus. The Police Jury set up and relied upon section 103 of this aot, which repealed all general laws authorizing the levy of special or judgment taxes; and restricted parochial taxation, throughout the State, to the maximum of one per cent, provided, that, on the written application of a majority in value of the tax-payers of a parish, the Police Jury shall be authorized to levy additional taxes, not in excess of five mills. On hearing the court held this act to be unconstitutional, in so far as this pre-existing judgment was concerned; and the mandamus, requiring the Police Jury to levy the tax, was made peremptory.

Peter Young recovered judgment in the District Court of the State, for the Parish of Concordia, on the sixth April, 1877, against the Police Jury, on obligations and evidences of debt, alleged to have been for current parish expenses, for the years 1873 to 1877, inclusive. By consent the amount was made payable in five annual instalments, bearing interest at five per cent, from the date of the judgment, instead of from the maturity of the obligations, respectively, as prayed for: and in Accordance with the act of 1869, then in force, the judgment ordered the^ parish officers, whose duty it is to assess taxes for the parish, forthwith to assess a tax, at a sufficient rate per cent, on the assessment roll of the current year, to pay and satisfy the first instalment; and to make similar assessment to meet the other instalments as they, respectively, should fall due.

In obedience to these mandates of the United States Court and of the State Court, the Police Jury, by ordinances of July 15 and August 19,1878, levied a tax of seven and eight tenths mills, and another tax of two and one third mills, to meet instalments on the Welden and Peter Young judgments ; and the tax collector was endeavoring to collect these taxes when Shields, a tax-payer, brought this suit in the parish court of Concordia, against the tax collector, and obtained an injunction arresting further proceedings as to him.

■The petition charges that the ordinances and proceedings of the Police Jury and the tax collector are illegal, null, and void, because they are in violation of section 103, of the act 96, of 1877 ; that petitioner has already paid or tendered to the collector the amount of the general parish tax assessed on his property, ten mills, and a special parish levee tax of two mills; and that there is no special act of the Legislature, and no written application of a majority in value of the tax-payers to justify the Police Jury in imposing, and the tax collector in collecting any additional tax.

The tax collector sets up and relies upon the judgment of the United States Court, making the mandamus peremptory as res adjudicóla, so far as the Welden claim is concerned. With respect to the Peter Young judgment, he denies that the act of 1877 is applicable, because:

1. The tax of ten mills is not more than sufficient to pay the current expenses of the parish ; and the judgment could never be paid out of the funds produced by such assessment;

2. That the act of 1869-was in force at the time the judgment was rendered ; and the Police Jury in assessing the tax complained of but endeavored to carry it into effect.

3. That the act of 1877 is' unconstitutional and without effect as to the tax levied to pay the Peter Young judgment: that it impairs the obligation and destroys his rights under it; and interposes a perpetual bar to the recovery of his judgment, and, therefore, violates the constitutions of the United States and of the State of Louisiana.

The parish judge held the act of 1877 to be in violation of art. 1, sec. 10, clause 1, of the Constitution of the United States, and art. 110 of the constitution of Louisiana ; and he dissolved the injunction, and ordered the collector to enforce payment of the tax enjoined.

• It will be observed that the suit is based, and the injunction was obtained, on the single ground that the ordinances of the Police Jury, and the proceedings of the tax collector, are illegal, null, and void, because they “ conflict with and are in violation of the provisions of section 103, of the act No. 96,” etc. The plaintiff does not attack either the Welden judgment or that in favor of Peter Young; nor could he have attacked either in the parish court, because the amount of each judgment is far in excess of the jurisdiction of the parish court; and because the action to annul a judgment must be brought in the court in which it was rendered.

The argument in this Court has taken a much wider range than the pleadings justify. Counsel for appellant contends that the presumption is conclusive, from the fact that the claims of Welden and Young have not been paid, that the debts were contracted in violation of the act of 1853, re-enacted in 1855, and in the Revised Statutes, section 2786, etc., which forbids police juries to contract any debt or pecuniary liability, without fully providing in the ordinance creating the debt, the means of paying the principal and interest. The argument is that if they had been fulhj provided for, they would have been paid.

But this is not necessarily true. It was admitted that the Welden debt was contracted when the taxable property of the parish was estimated at $14,000,000, whereas it is now only $1,250,000. The legal presumption, in the absence both of allegation and proof to the contrary, would be that the police jury did not violate the law; and that ample provision was made, in the ordinances authorizing the building of the bridge, the jail, and the other public edifices, to pay the debt thus contracted. A very low rate of taxation on $14,000,000 of taxable value, would have sufficed; but that rate would be wholly inadequate, when the taxable value was reduced to $1,250,000.

It is not possible for the police jury to know, in advance, precisely what the parish expenses for the current year will be. These expenses are provided for in the annual budget, by appropriation, out of the annual tax; and the rate of taxation is based upon the estimated amount of the current expenses, and other debts to be paid during the year. The current expenses will, necessarily, fluctuate in different years; and they can not, in the nature of things, be provided for, in advance, otherwise than estimatively. The sum thus appropriated and raised might be ample; and yet all the current expenses of the year might not be paid, either because all the tax levied is not collected, or because the necessary expenses have been in excess of the amount fixed in advance by estimation, or because the money collected has been diverted to other uses.

The Act of 1853 can not be applied strictly to the current expenses of the parish, because the amount must always be conjectural. All that the law requires, or could reasonably require with respect to them, is, that the Police Jury shall fix, by estimation, the amount which will be required to meet the current expenses, and appropriate and levy such tax as will raise that amount. If the amount thus raised should not suffice, the only consequence would be that the' police jury would be bound to supply the deficiency in subsequent annual budgets.

The fact that the judgments in favor of Welden and Young were ■the results of compromises with these creditors, in no manner impairs their validity. In the one case the parish obtained a large reduction of the debt, and of the rate of interest: in the other case all the interest which had accrued up to the date of the judgment was remitted ; and in both cases the tax-payers were relieved of the oppressive burden of paying these judgments in full, at once, by dividing them into five annual instalments.

No such issues, however, were made in the pleadings: no such questions were passed upon by the parish court; and they can not be originated in this court. The legal presumption is that every judgment of a competent court, rendered contradictorily, is in accordance with the law and the evidence; and if the legality of the claims on’which the two judgments in question were rendered could now be controverted, it certainly has not been done in this case: nor could it be done in the parish court, in a suit against the tax collector alone, on which the ordinances of the police jury levying the taxes required by the judgments» are attacked upon the single ground that they violate section 103 of Act 96, of 1877.

The judgments vested in Welden and Young, respectively, the right to be paid the amounts awarded to them, in the five instalments agreed, upon. At the time these judgments were rendered the only means of enforcing the payment was that prescribed by the Act of 1869, by assessments to be made for that purpose. When the Legislature subsequently repealed all general laws authorizing the levy of a special or judgment tax, and fixed the masdmum of parochial taxation at one per cent, a rate which, it was admitted in this ease, was not more than sufficient to pay the current expenses of the parish, it either intended that this law should apply only to judgments rendered in future, or it attempted to deprive these judgment creditors of all remedy; and to divest the rights vested in them by the judgments. It was no more Within the power of the Legislature to deprive these creditors of the benefit of that part of their respective judgments which ordered the levy of the tax to pay the instalments as they should become exigible^ than it would have been to reduce the amount, or the rate of interest fixed by the judgments.

In all fairness, and in legal intendment, it must be presumed that the Legislature did not intend to violate either the Constitution of the United States or of the State. The Constitution of the United States forbids a State to pass any law impairing the obligation of contracts. Art 1, sec. 10, elause 1. The constitution of Louisiana, art. 10, declares that every person, “ for injury done to him in his lands, goods, person, or reputation, shall have adequate remedy by due process of law : ” and art. 110 declares, that “no retroactive law, or law impairing the obligation of contracts, shall be passed ; nor vested rights be divested, unless for purposes of public utility and for adequate compensation made.” To apply the Act of 1877 to these pre-existing judgments, and the vested rights resulting from them, would be to violate the letter and spirit of these constitutional provisions; and would be in excess of legislative, power.

The preliminary injunction should not have been granted; and! fib might well have been dissolved on other grounds. The enforcement of" a judgment belongs to the court in which it was rendered ; and the parish court had no power or authority to enjoin the execution of the judgment of the United States Court, or of the State District Court. The-, enforcement of a judgment c'an not be arrested by injunction without', making the judgment creditor a party. The tax collector was ineapahlft; of standing in judgment alone in a suit to enjoin the collection of a fax: levied to pay a judgment; and if the injunction had been maintained, in this case, it would have been no obstacle to a proceeding in the United States Court, at the instance of Welden, against the police jury for contempt; nor would it have prevented a mandamus, and subsequent proceeding for contempt, at the.instance of Young, in the District, Court, to enforce the levy and collection of the tax. ’

The judgment appealed from is, therefore, affirmed with costs.

Rehearing refused.