author: Watkins, J.

text:
    No. 9755.
    Knoop, Hanneman & Co. et al. vs. J. A. Blaffer et als.
    1. An action under E. S. 301, to enforce against the directors of a bank liability for having furnished false statements of the affairs of the bank to the State Treasurer, is ex delicto and prescribed by one year.
    2 An action, under E. S., Sec. 300 and 301, to enforce the liability of the directors of a hanking corporation for the debts of the bank, on the ground that they had participated in, or assented to, the bank making loans and discounts, whilst in an insolvent condition, is one ex quasi delicto, and prescribed by one year.
    3. The act which gives use to a qxiasi contract, is a lawful one, and is permitted. That which gives use to a quasi offense is unlawful, and is prohibited.
    4. Prescription cannot be eked out by inference, nor extended from one cause to another by analogy; neither can the legal interruption of prescription be so extended.
    A PPEAL from the Civil District Court for the Parish of Orleans. A Lazarus, J.

      Henry Denis for Plaintiffs and Appellants.

      T. J. Semmes <& Legendre for Defendants and Appellees.

      Hranglm, Buelc, Dinlcelspiel and Hart ou the same side.
   The opinion of the Court was delivered by

Watkins, J.

Plaintiffs filed this suit on the 29th of January, 1886, against the defendants as directors of the Mechanics and Traders’ Bank of New Orleans, organized under the banking laws of this State, claiming that, on the 39th of March, 3879f, and before, they were depositors therein for large sums, for which they are indebted to them in solido.

They allege that, on the 19th of March, 1879, said bank was declared insolvent, its charter forfeited, and liquidating commissioners were appointed to close its affairs; and at that date their respective deposits were due and not been withdrawn.

They further allege “ that, on January 1,1878, the said bank did not have on hand an amount in specie equal to one-third of all its cash liabilities at that date, exclusive of its circulating notes; and did not have on hand for the other Iwo-thirds of its cash liabilities an equal amount in specie, specie-funds, bills of exchange, on discounted paper maturing within ninety days and not renewable; that, at no time since the 1st of January, 1878, has the bank had on hand an amount in specie equal to one-third of its cash liabilities, exclusive of its circulating notes, nor lias it had at any time in hand, for the two-thirds of its cash liabilities an equal amount of specie, specie-funds, bills of exchange or discounted paper maturing within ninety days and not renewable; that all these facts were to the knowledge of the said defendants, and each of them, while and during the time they were acting as directors of the said bank ; that in violation of lato, on every legal day since the first day of January, 1878, up to the 19th of March, 1879, the said bank made loans and discounts, and that each of said defendants, as directors of said bank, participated in or assented to each of said loans and discounts, knowing that said loans and discounts were made in violation of the law contained in sections 300 and 301 of the Revised Statute of the State of 1870; that by said violation of law the said directors and defendants herein rendered themselves individually liable for all debts and obligations of the said Mechanics and Traders’ Bank.”

They further allege that said directors in 1878 and 1879 furnished to the State Treasurer statements of the condition, assets and liabilities of said bank for publication, and which were published, and that in every one of those statements the said * * directors wilfully misstated the condition of the bank, representing same to be solvent, when, in truth and fact, the said bank was and had long before been hopelessly inslovent,” and that said directors caused and assented to said statements being published, and knew that the items thereof were falsely stated, and that bjr said false statements they gave the bank credit and reputation for solvency, when it was entitled to none; and that had they known the true condition of the bank, they would have with drawn their deposits.

They aver that by their tortious conduct, concealments and misstatements the said directors have made themselves liable in solido unto them for the various amounts due them by said bank,” of about $50,000.

The defendants plead in the lower court the prescription of one year to the cause or causes of action set out in plaintiffs’ petition; and from a judgment sustaining the plea plaintiffs have appealed.

In this Court defendants tender an additional plea of prescription of six months under the provision of R. S., 986,

I.

On the face of the petition, the demands of the plaintiffs, in so far as they are founded on the alleged false statement furnished to the State Treasurer, and the concealment from depositors of the alleged insolvent condition of the bank by defendants as its directors, the plea of prescription of one year is undoubtedly good.

The conduct and acts of the directors are charged to have been wrongful, wilful and tortious, and for the resulting damage suffered the plaintiffs asks judgment in solido.

II.

The plea, predicated on the charge that while in a condition of insolvency to the knowledge of the directors, the bank made loans and discounts with the acquiescence and participation of said directors, and in violation of law, is not free from difficulty.

This suit was brought under the provisions of Secs. 26 and 27 of Act 338 of 1853, it being an act to establish a general system of free banking in the State of Louisiana.” They were embodied in Secs. 300 and 301 of the Revised Statutes.

Under Sec. 2 of that Act, banking corporations created under its provisions were authorized to discount bills, notes, and other evidences of debt; to receive deposits; to buy and sell gold and silver bullion and foreign exchange; to loan money and to exercise all incidental powers necessary to carry on said business.”

Section 26 declares : “ Every banker or banking company, doing business under this act, is required, in addition to securities for circulation deposited with the Auditor, to have on hands, at all times, in specie, an amount equal to one-third of their other cash liabilities; and for the other two-thirds of said liabilities, an amount equal in specie, specie-funds, bills of exchange, or discounted paper, maturing within ninety days, and not renewable.” R. S. Sec. 300.

Section 27 provides : “ If at any time the specie, specie-funds, and short paper held by such banker or banking company, should fall bolow the proportions to cash liabilities prescribed in the preceding section, and shall remain so for a space of ten days, it shall not be lawful thereafter for such banker or banking company to make any loan or discount whatever, until its or their position is re-established according to the terms of the preceding section.

“A violation of this provision shall be held to be an act of insolvency and the Auditor shall cause the necessary steps to be taken for the liquidation of the affairs of such banker or banking company as in cases of insolvency; and every director or manager of a banking company, who may pa/rticipate in or assent to such violation, shall become indwidualhj liable for all its debts and obligations.”

In effect the statute declares that if a banking corporation shall permit its specie, specie-funds and short paper to fall below the standard fixed, and to so remain for a period of ten days, “ it shall not be lawful” for said corporation to make any loan or discount whatever, until its position is re-established and its affairs are put in line again.

“A violation of this provision ” is per se an act of insolvency on the part of the corporation, and its effect upon any director of said corporation “who may participate in or assent thereto,” is to make him “individually liable for all * * the debts and obligations ” of the corporation.

The statute under consideration conferred the power upon such cor porations as might be organized under it, “ to name and appoint such managers and directors to administer the affairs of the corporation as they may think necessary and proper.” R. S. Sec. 277.

No additional or more specific duties or responsibilities were therein prescribed for directors than had heretofore existed, in respect to private corporations generally, other than those indicated in R. S. sec. 301.

Under the general law, “ no stockholder shall ever be held liable or responsible for the contracts or fcmlts of the corporation, in any further sum than the unpaid balance due to the company on the shares owned by him.” R. S. 690.

This provision certainly includes the directors of a corporation.

Thus, it is perfectly clear that, by the “ free banking law ” of 1853, the legislature intended to place additional restrictions around corporations that should be created under it, and to impose upon persons who might be chosen to direct and administer their affairs a greater responsibility.

Hence it denominated any violation of the quoted provisions an <wnlaivful act on the part of the corporation, and declares that the assent thereto or acquiescence therein by any director, should make him liable. for all the debts and obligations of the corporation.

It is, therefore, a violation of laio that fixes his liability. The extent of his liability is the amount of the debts and obligations of the bank; bnt the debts and obligations are those of the corporation. If the debts and obligations of the corporations were, at the same time, the debts and obligations of its stockholders and directors, the statute did not increase their responsibility, and failed in the accomplishment of its beneficent purpose.

The serious question there is, what is the liability sought to be imposed upon the directors, and not what are the debts sought to be collected.

That there axe just such debts and obligations in favor of plaintiffs as depositors in the Mechanics and Traders’ Bank, as set out in their petition, is conceded by defendants for all the purposes of their pleas of prescription.

The plea under consideration is placed under R. C. C. 3536, which is to the effect that actions for damages resulting from offenses or quasi offenses,” are prescribed by one year. R. C. C. 2315 et seq.; 25 Ann. 414, Lizardi vs. The New Orleans, Canal and Banking Company; 20 Ann. 151, Williams vs. Grevier; Id. 214, Jennings vs. Gasselin; Id. 323, Millspough vs. City; 23 Ann. 162, Harvey vs. Waldon; 32 Ann. 220, Caillonet vs. Franklin.

Does the liability sought to be enforced grow out of an offense or a quasi offense? Did it result from any act of the defendant directors, whereby damage was caused the plaintiffs, and which they are obliged to repair on account of their fault f R. C. C. 2315. Did it result from the negligence of the directors, or through their imprudence or want of skill? R. C. C. 2316.

Or was it occasioned by the act of persons for whom they are answerable? R. C. C. 2317, 2320.

But the plaintiffs contend that their action arises ex quasi contráctil, and not ex delicto.

To determine its true interpretation, we must contrast the articles of the Civil Code relating to contracts and quasi contracts.

Article of the Code, 2293, declares : “ Quasi contracts are the lawful and purely voluntary acts of a man, from which there results any obligation whatever to a third person.”

Article 2294 provides : “ That all acts from which there results an obligation without an agreement in the manner expressed in the preceding article, form quasi contracts. But there are two principal kinds which give rise to them, to-wit: The transaction of another’s business, and the. payment of a thing not due.” C. P. 30.

In the present case, it is not claimed that defendants entered into any specific covenant, or agreement, with the plaintiffs, in any event to become liable for the debts and obligations of the bank. Thus there was no contract. It is not contended that the directors, of their own accord, undertook the transaction of any business for the plaintiffs ; nor is it contended that the directors unduly received plaintiffs’ money that was deposited in the bank, or that they, through inadvertance or mistake, delivered "over their deposits to the directors, instead of delivering them to the officers of the bank. On the contrary the plaintiffs in their petition declare that the bank made loans and discounts “in violation of law," and “that the directors of said bank participated in and assented to each of said loans and discounts, hnouiing that said loans and discounts were made ‘in violation of the law."

All “personal actions are grounded on one of the four causes which give rise to personal obligations. The causes are contracts, or quasi contracts; offenses, or quasi offenses.” C. P. 28.

“Personal actions arise from offenses, as when one has become liable to another for the injury he has inflicted on him by some crime or offense, such as theft or slander.” C. P. 31.

“Personal actions arise from quasi offenses, when the ground of action is the injwry done to another by one of those fcmlis which are not considered as real crimes or offenses.”

These different articles of the two codes have frequently passed under judicial investigation with the substantial result of placing the cases examined, in reference thereto, under one or the other of them, according to their respective features, without making any plainer the words of the text.

This Court in a recent case had occasion to examine and interpret the law under consideration; i. e., the Rev. Stats., secs.300, 301.

We refer to Lacombe vs. Milliken, 36 Ann. 367, in which the Court say: “The action is founded on sections 300 and 301, R. S. Two other grounds for the infliction of & penalty are alleged in the petition.” etc.

In Kent’s Commentaries the rule is laid down : “If a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute. * * * The rule is now settled that, the statutory prohibition is equally efficacious, and the illegality of the breach of a statute the same, whether a thing be prohibited absolutely or under a penalty. 1st vol., p. 467.

The statute of 1853 contains a prohibition against the corporation doing certain acts. It prohibits it from making any loans or discounts during the period of time it is out of line and declares that the same “ shall not be lawful.”

It inflicts upon the corporation the penalty of insolv&ncy ; and upon the directors participating therein the penalty of being made liable for all the “debts and obligations” of the bank.”

The defendants are not, by the Statute, declared liable for injury suffered by plaintiffs through “a crime or offense committed ; but for that inflicted by a fault, which is not considered as a real crime or offense.” C. P. 31, 32; R. C. C. 2315.

Their liability, as stated, has been incurred by reason of their failure to perform a lawful act, and also for their participation in an unlawful act. This was a fault, a wrong-doing, though not denounced by the Statute as a crime or misdemeanor.

Plaintiffs’ action is one ex quasi delicto and not ex quasi contractu.

In City of New Orleans vs. Southern Bank, 31 Ann. 566, the Court said: “The marked distinction between a, quasi contract and an offense or quasi offense is that the act which gives rise to a quasi contract is a lawful act, and is therefore permitted; while the act which gives lise to an offense or quasi offense is unlawful and therefore forbidden.

The court sustained the defendant’s plea of prescription of one year, and so did the judge a quo, and we think he rvas correct in so doing.

III.

But the plaintiffs’ counsel claims that the prescription was legally interrupted by the suit of Lacombe vs. Miliken, 36 Ann. 367.

This suit was filed and service accepted by defendants on the 29th day of January, 1886, and that suit was finally decided by this court in'April, 1884.

More than one year had elapsed between the decision of the one and the institution of the other suit.

Even if that were not conclusive against the plaintiffs’ petitions in that regard, wo cannot consider that suit as having the legal effect of an interruption. It was held in that case that “ the liability of the directors is not in favor of the bank, or its liquidators, but in favor of the creditors of the concern, who may, or may not, at their option, enforce it, for their separate benefits.” The plaintiffs, in that case, were without a cause of action, and this is the first appearance of the creditors of the bank.

Prescription is stricti juris, and cannot be eked out by inference, nor extended from one cause to another by analogy ; neither can the legal interruption of prescription.

Under tlie views herein expressed it is unnecessary that we should pass upon the plea of prescription of six months, urged by defendants.

Judgment affirmed.

On Application for Rehearing.

Plaintiff's present an earnest argument in favor of their application, and on account of the great importance of the case, we will supplement the opinion complained of.

I.

They insist that we have misconstrued the banking law of the State and have limited their claim to the amount of the deposits as the measure of damages.

It was not the purpose or intention of the opinion to thus limit the operation or effect of the banking laws. We simply held that the liability of directors, under the state of facts presented, was one arising ex delicio and not ex quasi eoniraetu as contended.

The liability sought to be enforced in this instance happened to be for the debts of the bank, i. e., the plaintiffs’ deposits. We had no occasion to place any such restriction upon the liability of directors, in reference to damages or other obligations incurred by the corporation, as supposed.

II.

We are not disposed to recede from the views expressed in reference to quasi contracts.

Counsel insist that “it is not from the violation of the banking law that the quasi contract results;” but that it results “from the lawful act of accepting the directorship of the bank, and receiving the deposits. The liability itself flow's first from the quasi contract, and then from the violation of law.”

The manifest fault of this argument is that the directors of the bank are taken for the bank itself.

The opinion quotes from the statute itself the enumerated duties of the directors of banking corporations, and also the section of the Revised Statutes which defines the liability of the stockholders of corporations generally, for the purpose of making it plain that it was not one of the duties of directors to receive, or have the care of deposits of the bank. Por this reason they did not enter into any contractual relations in reference to funds deposited in the bank.

The illustrations given are not apposite, for the reason that tutors, executors, administrators and agents are entrusted with the funds, under specific provisions of the law ; and if they misappropriate them they are liable under those laws. The same is true of the negotiorum gestor. In each of those relations exists a trust to be performed.

But the directors of a bank are in no sense the trustees, agents or negotiorum gestores of the depositors of the bank, and incurred no contractual obligations, or relations under the banking law. By assenting to, or acquiescing in the loans and discounts made by the corporation, while in an insolvent situation, those directors violated the penal provisions of the statute, and subjected themselves to the payment of its debts and obligations. ”

III.

While it is true that the opinion does not m terms decide whether a contract did, or did not, arise from the statute itself, by the fact of the parties acting under it, and, therefore, accepting the stipulations of such statute, made by law, in favor of the creditors of the bank;” it does in effect, by holding that the liability of the directors, under the facts presented, arose ex delicto and not ex quasi contractu.

Counsel insist that “when parties act under a statute which creates specific rights, obligations and liabilities, the Statute itself becomes a contract between the parties, and their acting under it shows their implied acceptance of its stipulations.”

Applying this principle of law and precept of jurisprudence to the banking law under consideration, and we find, as stated in the preceding paragraph, that it imposed no duty upon tlio directors in reference to funds deposited with the corporation ; and by undertaking the discharge of their duties as such, which are exclusively administrative in their character, they incurred no contractual obligation toward the depositors. The penalty that the law imposes upon directors who impliedly assent to any violation of the law by the corporation operates as merely a safeguard for the protection of depositors, on the happening of a contingency that may arise necessitating its enforcement.

But that liability is not contractual. We fail to perceive any analogy between the case as stated and that suggested by counsel of a municipal corporation issuing bonds, in pursuance of an enabling law, and securing their payment by tax levies. In such case the law is considered as read into the contract, and it cannot thereafter be changed to the prejudice of the holders of such bonds, until same are fully paid. The tax levies are the trust of the creditor. The duty is specifically imposed upon the corpoiation, and their acts cannot be recalled to the prejudice of third persons.

iv.

Counsel complains that'no attention was given to the grounds on which he particularly relied as interrupting prescription urged by defendants, viz: the acknowledgment of the bank’s liability in the account of the liquidating commissioners, filed on the 9th of February, 1880, and upon which plaintiffs are placed as creditors.

As the opinion in effect declared, this court held in Lacombe vs. Milliken, 36 Ann. 369, that liability accrues, not in favor of the bank in liquidation, which is a debtor to its creditors, but in favor of those creditors, hence that suit did not have the effect of interrupting prescription, it being a suit by the commissioners of the bank, and they without any cause of action.

The correctness of this view the plaintiffs’ counsel inferentially admits.

Now, we submit — and so decide — that it follows, as a necessary corollary from that argument, that the account and tableau of distribution was but an acknowledgment, or admission of the debts of the bank, to and in favor of the plaintiffs and other creditors. The commissioners had no more authority to admit the liability of the directors on their account 'than they did to sue them for its recovery.

They take this incorrect premises from which to argue that, if the directors are liable ex delicto, they are liable in solido under R. C. (J. 2324, as wrong-doers, with the corporation.

But defendants are not proceeded against under that article, but explicitly and distinctly under the banking law, and for the enforcement of a particular liability thereunder, for the debts of the bank.

It is sufficient answer to say that the statute declares that directors “shall become individually liable for” the debts and obligations of the bank. The statute does not give such a liability the character or quality of solidarity, and we will not.

The case cited by counsel (Morgan vs. Metayer, 14 Ann. 612 ) only involves an ordinary contract of two debtors in solido, one of whom became insolvent, and acknowledges the debt on his bilan. We regard it as inapplicable.

In conclusion we have only to say that rye adhere to the conclusion first announced, and the rehearing is therefore denied.

Rehearing refused.


source: Caselaw Access Project

author: Bermudez, C, J.

license: Public Domain

text:
    No. 9790.
    The State ex rel. The Daily States vs. James D. Houston, Tax Collector.
    The costs of advertising real estate for sale to pay taxes duo tliereon, under the provisions of Act 82 of 1884, are entitled to be paid with preference by the tax collector out of the first collections realized in the enforcement of the act, unless where the State has failed to give an absolute title, or, that given has been duly annulled.
    Tax collectors have no right to refuse such payment, when the State has not made default, or the title given has not "been annulled.
    Tax collectors cannot be subjected to responsibility for carrying out the positive mandates of valid laws.
    A PPEAL from tlie Civil District Court for the Parish of Orleans. Jl\_ Monroe, J.

      Thos. O. W. Milis for the Relators, Appellees.

      Blanc & Butler for the Respondent, Appellant.
   The opinion of the Court was delivered by

Bermudez, C, J.

The defendant appeals from a judgment directing him to pay to the plaintiff the sum of $3666.24, out of $21,276 which he has in his possession and which are the proceeds of certain sales of property advertised by plaintiff for sale, for the payment of State taxes due.

There is no dispute as to the amount claimed for services rendered and as to the existence of the fund. They are admitted.

The plaintiffs ground their demand for payment out of said fund on section 7 of Act 82 of 1884, p. 107, which is to the effect, that the total amount of costs and expenses incurred in advertising and putting up for sale immovable property for State taxes due prior to December 31, 1879, shall be paid by preference by tax collectors, out of the first collections made in enforcing the law, and before any distribution of the proceeds for the discharge of State and municipal taxes, directed by a previous section (5).

The defendant, however, resists payment for the reason, that section 4 of the same act compels him to retain the entire proceeds of all sales, made under the statute, until it is finally determined that the State has conveyed absolute title to the purchasers at such sales.

After declaring the effect of a tax sale and how the purchaser shall he put in possession, the section invoked concludes in the following terms;

“In case the State shall fail to give the purchaser au absolute title to the property sold, or if said title shall be duly declared null and void for any cause, the amount paid by the purchaer s to the State for such property shall be refunded by the tax collector to the purchaser.”

This section must be construed with the other parts of the act and also with a previous statute to which it refers, viz: Act 96 of 1882, p. 140, sec. 74, which requires that the tax collectors for the parish of Orleans ( one of. whom defendant is ) shall make monthly settlements with the Auditor and pay into the State treasury the sums collected for account of the State.

Taken together, the two acts, as far as they have an application to the instant case, simply mean in substance.: That the property on which certain taxes are due, shall be advertised for sale; that, in cases of adjudication, a deed shall be made by the tax collector ; that the cost of advertising and putting up for sale shall be paid by preference by the tax collector out of the first collections made in enforcing the act; that this payment is paramount to any other; that the tax collector shall, within the time required by law (one month) for the settlement of I,ax collections, file a statement of the sales .effected by him under the act; that the tax collector shall not pay over to the State the proceeds of sale, -where the State has failed to give to the purchaser an absolute title, or where the title given has been duly declared null and void; that, in such cases, the tax collector shall refund to the purchaser the amount paid by him for such property.

It is not at all strange that the act does not state expressly how long the proceeds shall remain in the hands of the tax collector, for the obvious reason that the act of 1882, to which that of 1884 refers as to time, requires a monthly settlement and payment by tax collectors, under penalties in cases of failure or default.

The two statutes taken together can therefore mean only, that the tax collector shall pay hy preference the expenses of sale, out of the first collections, vmless in'the cases in which the State has failed to make a title, or in wdricli the title given has been duly annulled.

There is no pretence here that the State has thus been in default, or that the title made has been in any solitary case annulled.

It was well said by counsel for plaintiff that section 4 never intended that the tax collector should keep in his own possession the moneys collected from tax sales, withholding from the officers and printers entitled to their costs for bringing the property to sale and withholding from the State its revenues ad grescas calendas, on the suggestion that in the hereafter, litigation might arise to annul these titles.

The district judge likewise well observed that “it would be unreasonable to suppose that the legislature intended that such payment (of costs and expenses) should be withheld until the possible claims of purchasers, based upon possible evictions by judgments, should become prescribed.”

Placing a different construction on the act would indeed be to read out of it sections 5 and 8 and the reference to the statute of 1882, requiring monthly statements, and to constitute State tax collectors, on 'flimsy pretences, sub-treasurers with authority to collect certain revenues of the State and to retain the same to no end of time.

Tax collectors cannot be subjected to responsibility for carrying out the positive mandates of valid laws, irrespective of the protection in warranty by the State for moneys paid over by them into the public treasury.

We conclude that the district judge decided correctly.

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


author:
      Todd, J.
     Fenner, J. Poché, J;

text:
    No. 9811.
    John Chaffe & Sons et al. vs. Samuel F. Walker.—Edwin Bates & Co. Intervenors.
    A judicial mortgage takes effect from tbe date of the recordation of the judgment in the mortgage hook of the parish, where the immovables of the debtor are situated, and this rule applies to cases where the judgments are rendered in a country parish at the same term of court.
    Article 555, O. P., has no bearing on the question, and does not conflict with tho articles of the Civil Code on the subject of judicial mortgages.
    APPEAL from the Tenth District Court, Parish of DeSoto. Sail, J.

      B. W. Sutherlin for Plaintiffs and Appellants.

      Bayne & Denegre on the same side :
    A judicial mortgage results from recording a judgment by confession. A debtor may confess judgment in favor of his creditor, and by this confession consents to the immediate signing of the .same by the judge, and waives the delay for a new trial. The recording of such a judgment operates as a judicial mortgage, and this is true m the several judicial distiicts of the State, as it is in the parish of Orleans, or in the parish of Caddo, which, constitutes the Pirst Judicial District mentioned in Art. 555 of the Code of Practice. 11 Ann. Rep. 100; 12 Ann. Rep. 431.
    The delay for motions for new trial and for appeal may he waived, such delays are personal to the debtor, and he may waive them by non-action or by special agreements. 15 Ann, Ren- 478, and Martin’s Rep., New Series, 234.
    The rank of all mortgages in this State is determined by actual registry, and. the articles of the Civil Code in the chapter and section relating to mortgages and judicial mortgages defines how such mortgages are created and the older of their rank. Civil Code, 3287 3322, 3342; 29 Ann. Rep. 323; Succession of Dickson, 37 Ann Rep. 797.

      J. G. Pugh and Kermard, Iiowe & Prentiss for Intervenors and Appellees :
    All judgments rendered, signed and recorded during the same term of the district coum in the country parishes take effect as judgments, and operate as judicial mortgages, from the last day of the term of the court at which they are rendered. C. P. 555 ; 29 Ami. 518 ; 35 Ann. 285.
   Tlie opinion of tlie Court was delivered by

Todd, J.

The plaintiffs and intervenors are judgment creditors of the defendant.

Their judgments were rendered at the same term of the district court of DeSoto.

The judgments in favor of the plaintiffs (John Chaffe & Sons, and Nelson McStea), were recorded in the mortgage record book of said parish on the 3d of April, 1883, and that of the intervenors on the 20th of the same month.

The only question for our determination is whether the judicial mortgages in favor of these parties (plaintiffs and intervenors), operate concurrently on the property subject to the mortgages, or are the plaintiffs’ mortgages, being first of record, entitled to precedence.

Prom a judgment decreeing that they were of equal rank, and operated concurrently on the property, tlie plaintiffs have appealed.

The judgment of the lower court is based on the construction given by the judge to art 555 of the Code of Practice, which reads :

“All judgments rendered * * * shall be considered as having-effect only from the last day of the term, whatever may be the day on which they shall have been signed.” The judge concluding that as a judicial mortgage results from the recordation of a judgment, that it only becomes operative when the judgment goes into effect.

The counsel for the plaintiffs contends that the question when a judicial mortgage takes effect or becomes operative is in no wise dependent on that article or any other provision of the Code of Practice, but is to be determined entirely by the articles of the Civil Code on the subject of the registry and rank of mortgages.

This precise question is for the first time before this court for adjudication. We are pointed to the decisions—29 Ann. 518; 35 Ann. 285 — as conclusive of the point. These decisions are to the effect only that prescription against judgments begins to run from the last day of the term at which they are rendered; which we do not consider as determining the question.

The articles of the Civil Code referred to bearing on this point are as follows:

Art. 3322. “The judicial mortgage takes effect from the dav on which the judgment is recorded in the manner hereafter directed.”

Art. 3323 : “ If there be an appeal from the judgment, and it is confirmed, the mortgage relates back to the day when the judgment was recorded.”

Art. 3329 : Among creditors, the mortgage, whether conventional, legal or judicial, has force only from the time of recording it ”

Art. 3358: The creditors whose inscriptions have been made on the same day possess a concurrent mortgage, and no distinction is made between the inscription made on the morning or that made in tlie evening * * * .”

If it were not for the article of the Code of Practice above quoted, not the slightest doubt could exist that the judicial mortgage is in force from the day on which the judgment is recorded, and that only those can have concurrent mortgages who have recorded their judgment on the same day, so plain, positive and unambiguous are the declarations of the Civil Code in the above articles on this subject.

After a thorough consideration of the question, and an examination of all the authorities in any way bearing on it, we have reached the conclusion that there is not a real conflict in the articles of the two Codes, and that the articles last above cited are not controlled or affected by the article of the Code of Practice quoted and relied on by the counsel for the intervenors.

It is to be considered that the Code of Practice is intended and designed to establish rules of civil procedure. Thus it defines what actions are, how they are prosecuted until they culminate into judgments, what those judgments are, and how they may be enforced or executed, and treats of all matters germane thereto. On the other hand, the Civil Code treats of legal rights that give rise to actions and the different kind of contracts and obligations, and the manner in which they are created and preserved, and other kindred subjects. It is easily perceived that the whole subject of mortgages,' — how created and in what manner to be registered and the purpose of registry, etc., —belongs exclusively to the latter Code.

This Code declares, as shown above, that the inscription of a judgment in a certain book, and in an office designated, gives rise to or creates a mortgage. It is not the judgment per se that constitutes the mortgage, but its inscription in the mortgage as prescribed; for the Code of Practice, art. 545, provides that:

Definitive judgments, though entered on the docket of the judgments of the courts, shall not affect the property of the person against whom such judgments have been rendered;” but it is added, “that such judgment must be recorded at the office of mortgages in order to give the party a judicial mortgage.” From which latter clause it is plainly inferable that such final or definite judgment, when so recorded, does give a judicial mortgage.

But it is contended that there is no judgment; that it does not come into existence until the last da.y of the term of the court at which it was rendered. It seems paradoxical to say that a judgment which the law terms final and definite, which is signed by the judge, that when it is thus rendered and signed, and is final, definite and conclusive between the parties, that it still lias no existence ! C. P., 539, 546.

When a judgment is thus rendered and signed “it becomes the property of him in whose favor it is given, and the judge cannot alter it except in the mode prescribed by law.” C. P. 548.

There is another article to be found under the head of “ appeals ” that throws additional light on the true intent and meaning of article 555 touching the expression therein “ that judgment shall be considered as having effect only from the last day of the term.”

It is article 575, one clause of which provides (quoting): “That in the country parishes no execution shall issue in cases where an appeal lies until ten days after the adjournment of the court by which the judgment was rendered, within which delay a party may take a suspensive appeal.”

When we consider that in other articles the judgment when rendered is termed a definitive or final judgment, that it constitutes res adjudicata between the parties, and moreover construe all the articles together including the one last quoted (575), the conclusion is inevitable that nothing was meant by article 555 other than that the judgment did not become executory, and its payment could not be enforced until the time stated; and that the two articles taken together relate exclusively to the execution of judgments and appeals therefrom ; and were designed to make ample provision for suspensive appeals and to facilitate the exercise of the right of appeal, by together declaring appealable judgments inexigible not only until tire last da3! of the term but for ten days thereafter. It is to be noted moreover that with regard to devolutive appeals, the right of appeal is for one year, not from the last day of the term, but “ from the day the final judgment was rendered.”

Tn appealable cases, a suspensive appeal renders the judgment a])pealed from as ineffectual and inoperative during tlie pendency of the appeal and until affirmed by the appellate court as the temporary suspension provided by art. 555 C. P., from the date of its rendition till the last day of the term, yet no one would seriously contend during that period of suspension — often lasting for years — that its recordation during that term would be without force and effect.

Yet there is just as much reason to declare it inoperative for the one period as the other.

There is another consideration that is strongly confirmatory of these views and favors the conclusion that Article 555, C. P., in no manner affects the question of judicial mortgages, but that that question is entirely regulated by the provisions of the Civil Code. It is this :

In all sales under execution of judgments, the recorder of the parish is required to furnish the sheriff a certificate of mortgages; the object of which is to show what incumbrances are on the property, to establish the rank of the mortgages and privileges, and to regulate the distribution of the proceeds of sale. Of course this officer makes out the' certificate from the mortgage book in his office; that alone is relied on for information.

Now if the rank of the judicial mortgages was not to be determined solely by the respective dates of the record of the judgments, then the certificate furnished would be calculated to mislead and deceive. In fact according to the theory of the interveuors’ counsel, the certificate thus made out from the mortgage record would be false on the face of it, and that the recorder at least so far as relates to judicial mortgages should not have consulted his record, but should have examined the records of the court rendering the judgment to ascertain the last day of the term thereof, and be controlled by the knowledge thus derived in making out his certificate! It might happen that the judgment under which the property is being sold was rendered in a distant parish from the place of sale, and then the officer would have to search the court records of that parish to discover the vital fact that was to guide him in making out his mortgage certificate. And sometimes it might be the case that the judgments were rendered in several parishes, a lid then investigations would have to be made in the court records of all these parishes to obtain the requisite information for a mortgage certificate!

It is needless to say that the law imposes no such unreasonable and herculean tasks upon the recorders. They are required to make out their mortgage certificates from the mortgage records in their offices, and this requirement is essentially a legal declaration that the amount of judicial mortgages, the rank of such mortgages, their respective dates, and everything relating to them is to be established by such records and they alone are to be consulted.

Our conclusion is that the judicial mortgages of the plaintiffs became operative from the date of the incription of their judgments in the mortgage book — the 3d of April, 1883 — and that they prime the mortgage of the intervenors inscribed on the 20th of the same month and year.

It is therefore ordered, adjudged and decreed that the judgment of the lower court, in so far as it decrees that the judicial mortgages of the plaintiffs and intervenors operated concurrently on the property subject to the mortgages or its proceeds, be annulled, avoided and reversed ; and it is now ordered, adjudged and decreed that the judicial mortgages of the plaintiffs have precedence over that of the intervenors, and that the plaintiffs are to be first paid out of the proceeds of the same, that the intervenors pay costs of their intervention in both courts, and that the judgment in other respects be affirmed.

Concurring Opinion.

Fenner, J.

I do not consider that Art. 555 of the Code of Practice, has any application. Its sole and avowod object is to regulate the effect of judgments.

Now, in many. States of the Union and formerly in this State, it was one of the effects of a judgment that, from its simple entry on the docket of the court, it operated a lien or mortgage upon the property of the debtor. If that were still the case, there would be less difficulty in holding that Art. 555 would defeat such effect until the last day of the term. But the Code of Practice has obliterated this as an effect of judgments, by declaring that “ they shall not hereafter affect the property of the. person against whom such judgments were rendered, all laws to the contrary notwithstanding. Such judgments must be recorded at the office of mortgages, in order to give the party a judicial mortgage, pursuant to the provisions of the law.” Art. 545.

The “ provisions of law” referred to are those found in the Civil Code, which are thus recognized and adopted by the Code of Practice, except that the latter controls and corrects the loose language of Art. 3321, which says that “the judicial mortgage is that resulting from judgments,” etc , because the Code of Practice expressly declares that no such mortgage shall result from judgments.

Reading Art. 545, C. P. and Arts. 3321 and 3322, C. C. together, the clear and obvious meaning is that a judicial mortgage is that resulting from the recording of a judgment, and ;i takes effect from the day on which the judgment is recorded in the manner hereafter directed.”

Now, plaintiffs present here a judgment for money, rendered and signed by the judge and recorded in the manner directed by law on April 3,1883, and he claims that a judicial mortgage resulted from that record and took effect from the day of record.

Intervenors say: “ No ; under Art. 555, C. P., the judgment must be considered as having effect only from the last day of the term, and therefore your mortgage takes effect, not from the date of record as expressly directed by Art. 3322, C. C., but only from the last day of the term of the court; and inasmuch as our judgment, though only recorded on April 20, 1883, took effect concurrently with yours, our judicial mortgage is equally concurrent with yours.”

This contention of intervenors would introduce an element of uncertainty and confusion in our mortgage records utterly hostile to the whole spirit and intention of our legislation on that subject.

With regard to the rank of mortgages resulting from the inscription of country judgments, the examiner could no longer be guided by the plain land mark set by the Code of the date of record, but would be sent under a roving commission to ascertain what was the last day of the term of court at which the judgment was rendered. Such inscriptions are often made in parishes distant from that where the judgment was rendered. They last for ten years and may be indefinitely prolonged by re-inscription. Thus, a party in the parish of Plaquemines finding an inscription of a judgment rendered twenty years ago in the parish of Ouachita might be confronted with the necessity of ascertaining what was the last day of the term at which it was rendered.

This, in my judgment, is utterly untenable, and the plain alternative presented is, either that the inscriptions of these judgments took effect from their respective dates, or they did not take effect at all; and the recorder erred in admitting them to record without a certification that the term of court had expired, which, under intervenors’ theory, could alone give effect to the judgment and, as an inevitable corrollary, to its inscription.

Now, although Art. 555 is an original article of the Code of Practice, it is not disputed that under the express authority of Art. 546, C. P., judgments'in the country parishes have been habitually signed and recorded before the last day of the term, as was done by all parties in this very case, and our jurisprudence furnishes no precedent of any question having ever been raised as to such inscriptions taking effect from the date when made according to the express provision of Art. 3322, C. C.

The plain solution of tliese difficulties is found in the proposition that the validity and effect of the inscription of judgments are governed, not by the Code of Practice, but by the Civil Code; and that, under the latter, we are not concerned with any questions concerning the effect of judgments or when they have effect, but simply with the inquiry whether the judgment recorded existed as a final judgment within the meaning of C. C., art. 3321; for, if it did so exist, whatever its effects, the record thereof, under the unambiguous language of the code, created a judicial mortgage effective from the date of inscription.

Art. 555, C. P., must be construed with other articles in the same section, and the language thereof, that “judgments shall be considered as having effect only from the last day of the term,” finds important limitations.

Thus, under art. 546, the judgment was properly and validly signed by the judge before the expiration of the term; under art. 539, it was a definitive or final judgment; tinder articles 547 and 558, the judge could not, in any manner, alter or amend it; and under art. 548 it had become the property of the party in whose favor it was rendered and entirely beyond the control of the judge.

It follows that, notwithstanding the language of art. 555, the judgment did have many and most important effects from the moment of signature; and, in my opinion, it had all the effect necessary to constitute it a final judgment within the meaning of the Civil Code, entitled to be recorded and to operate as a judicial mortgage from the date of inscription.

I am satisfied that Art. 555 refers to effects independent of, and subsequent to, the creation and existence of the judgment, and that those effects alone, such as execution, delays for appeal, etc., are deferred to the last day of the term.

While this construction gives advantage to the diligent or fortunate suitor, such advantage is not hostile to the spirit of the law. The opposite construction gives advantage to the fraudulent debtor, who, after condemnation by final judgment, would be left a considerable period, during which he might dispose of or establish mortgages on his property, while the hands of his judgment creditor would be tied. I think he gets a sufficient advantage in the postponement of the execution, and, until the law-maker repeals or amends the present articles of the Civil Code, I shall not consent to its extension.

While it is true that, in case of conflict between the Civil Code and Code of Practice, the latter prevails; yet the two must be reconciled when possible, and only in case of irreconcilable conflict would any court be justified in disregarding unambiguous provisions of tbe Civil Code.

I, therefore, eoncnr in the decree.

Dissenting Opinion.

Poché, J;

At the April term of 1883 of the district court of DeSoto plaintiffs and intervenors respectively obtained moneyed judgments against the defendant Walker.

Plaintiffs’ judgments were rendered, signed and recorded in the mortgage office on tbe 3d of April, and the judgment in favor of intervenors was rendered, signed and recorded on the 20th of the same month. That term of the court was adjourned on the 2d of May following.

Plaintiffs claim priority of mortgage because the judicial mortgage should date from the day of inscription of their judgments. Intervenors contend that the respective mortgages resulting from the judgments thus rendered are concurrent, because the effect of the judgments only began from the last day of the term, or from the 2d of May, 1883.

The latter views were sustained by the district judge.

That contention finds ample support in article 555 of the Code of Practice, which reads as follows : “All judgments rendered, except in the first judicial district, shall be considered as having effect only from the last day of the term, whatever may be the day on which they shall have been signed.”

Under the very terms of the article, if read in the judicial mortgage under discussion, it is certain and clear that judgments rendered by the district court of DeSoto at that term could have had no effect before the 2d day of May, which was the last day of that term, whatever be the day on which they had been respectively signed, in other words; that a judgment signed on the 3d of April, as well as that which was signed on the 20th following, should both be considered as having effect only from the 2d of May following.

It is not disputed that the article 555 applies to all parishes in the State except the parish of Orleans.

But it is argued that the article of the Code of Practice cannot have the effect of determining rights, but merely of establishing rules of procedure, and that the case falls under the provisions of article 3329 of the Civil Code, which reads :

“Among creditors, the mortgage, whether conventional, legal or judicial, has force only from the time of recording in the manner hereafter directed.” And it is contended tliat, as the two provisions are conflicting, the article of the Code, which is intended to create a right, must have precedence over the Code of Practice, which treats only of rules.

But the whole subject of judgments as to the manner of obtaining, rendering, signing, executing, and in other respects, of controlling them, is confessedly a question of procedure, which our law has properly and.logically relegated to the Code of Practice: hence the question of regulating the effect of judgments most undoubtedly falls within its province.

Now, article 3321 of the Civil Code defines the judicial mortgage as one “ resulting from a judgment.” But the definition of a judgment must be looked for in the Code of Practice, and to that Code also must inquiry be directed to discover the mode by which a judgment may become, or operate as, a judicial mortgage. Hence, article-545 Code of Practice, provides: “ Such judgments must be recorded at the office of mortgages, in order to give the party a judicial mortgage pursuant to the provisions of the law.” The first part of the article contemplates that, without the formality of recording, the judgment shall not affect the property of the party cast. Article 3323 Civil Code is to the same effect.

The consequence of operating as a mortgage is, therefore, one of the first effects, if not the most important, which the Code attributes to a judgment. Then comes the provision that judgments shall have no effect in certain parishes before the last day of the term of the court at which they shall have been rendered, without regard to the day ou which they shall have been signed. Iiow then can it be logically argued that, notwithstanding such a direct prohibition, judgments may have the most important legal effect before the period of gestation determined by the law itself.

Article 3329 and others of the Civil Code contain no provision necessarily conflicting with the rule settled in the Code of Practice. The object of Art. 3329, as indicated by the title of the section in which it is contained, is to determine the “rank in which mortgages stand with respect to each other,” and to that end it provides that all mortgages shall have force as among creditors only from the time of recording the same. But nothing in that article, and no other language in the Code, can be construed as fixing the time at which a judgment must be recorded, or the juncture at which a judgment takes effect. That rule has been left to, and can only be found in, the Code of Practice. It is there declared that in certain parishes the judgment can have no legal effect before tbe last day of tbe term, and logically one of the effects contemplated by the law-maker must have been that which results from the recordation of the judgment.

While the article does not in terms forbid the act of recording the judgment before the last day of the term, it unmistakably means that no legal effect can flow from such recordation before that day, and that is the time of recording which the Civil Code contemplates; it does not refer to an idle or too hasty recordation, but to a legal formality, followed by legal effects. Hence, the two articles are not antagonistic, but they harmonize; the one fixing the rule, the other applying legal consequences thereto. Hence it is that in construing other laws which have certain effects to be determined by the finality of judgments, the Court has held that, in the country parishes, judgments were not final in that sense before, the last day of the term at which they were rendered.

In the case of Broussard vs. Dupré, 29 Ann. 518, where the Court had to determine, in a suit to revive a judgment, the period at which the prescription of ten years should begin to run, held that it must be computed from the last day of the term and not from the date of the signature of the judgment. The Court said : “ But the general provision that all judgments rendered in the courts of this State, other than those of the first judicial district, take effect only from the last day of the term of the court at which they are rendered, fixes the time when the judgment is complete and indicates the starting point when prescription begins to run against them.”

The same views prevailed in the case of Boyd vs. LaBranche, 35 Ann. 285. Any other construction is equivalent to a declaration that a statute which in terms provides that certain judgments shall have no effect before a specified time, really means that they may have certain effects before that time. Such a doctrine clashes with the familiar rule that “a construction which would render useless important expressions of the law cannot be adopted ; effect must be given to them all if possible.” 9 M. 635; 4 N. S. 322, 380; 2 R. 236; 3 L. 365; 16 L. 577; 14 Ann. 419.

Article 546 of the Code of Practice may also be invoked as authority for the contention that all judgments rendered in the country parishes at the same term must be understood as standing on the same footing as regards their legal and practical effect; it reads: The judge must sign all definitive or final judgments rendered by him, but he shall not do so until three judicial days have elapsed, to be computed from the day when such judgments were given; provided that hereafter (except in the parish of Orleans) all motions for new trials in causes, shall be made and determined, and all final judgments signed before the adjournment of the court for the term at which such causes were tried, and whether those judicial days shall have elapsed or not.”

No other conclusion can be drawn from a proper construction of the several articles in our Code of Practice bearing on the question than that in country parishes, the corresponding effect of all judgments must be tested by considering the term at which they were rendered and signed, and not the particular day on which they may have been signed.

To reach any other conclusion is equivalent to an entire alteration of article 555 and other articles of the Code of Practice.

After a most laborious search, embracing an examination of every volume of our reports, I have been unable to find any case involving the proper construction of the article 555 of the Code of Practice, save and except the two cases hereinbefore referred to; from the 29th and 35th Annuals.

A careful perusal of these two decisions will show that the clear doctrine therein announced singularly clashes with the views of the majority of my associates in the instant case.

In the first, of these cases, Broussard vs. Dupre, 29th Ann. 578, Chief Justice Manning, as the organ of the court, uses the following emphatic language : Judgments rendered in the courts of the country parishes have effect only from the last day of the term, -whatever may be the day on which they shall have been signed. C. P. art. 555.

“ The prescription of ten years will not apply to this suit for revival, unless the time be reckoned from the day when the judgment was signed. The defendant urges that the day when it was signed is the day of its rendition, but that is obviously inaccurate, because a judgment is rendered* alwaj'-s before it is signed, and in some of the country parishes the excellent practice prevailed and now prevails of signing all judgments rendered during the term on the last day thereof and not before.,

The judgment of 1867 had effect only on and from the 18th of February of that year (the last day of the term). It could not have been used, as a judgment until that time, and that must be the day when it commenced its existence, so to speak, as a judgment.”

Had the court conceived the idea that the registry of the judgment at any time before the last day of the term, would have fixed the date of the judicial mortgage as taking effect on that day, it would certiiinly not have said that the judgment could not he used before the last day of the term, as a judgment.

The same views prevailed in the case of Boyd vs. LaBranche, 35 Ann. 285.

I feel justified in maiutaiuiug that the iuteipretation thus given to the article of the Code, coupled with the plain language of its provisions, has acquired the force of the rule of “ stare decisis.”

I suggest that the argument resting on the inconvenience of the law cannot he invoked to defeat its plain and unambiguous meaning.

The construction herein adopted opens the door to wrongs of greater consequence than the inconveniences sought to he averted.

It places within the reach of an insolvent debtor, who is sued at the same term of the court by several creditors, the means of giving an uudue preference to one or more of them by confessing judgment in their favor, and refusing the like advantage to others, whereas a different construction would cure the evil, by placing all the judgments rendered at the same term on the same footing.

The judge himself who may desire to favor one or more of several litigants suing an insolvent debtor, may accomplish the mischief by signing some judgments at the expiration of the three judicial days, and by withholding his signature of the others until the last day of term.

I therefore dissent from the opiuion and decree of the majority in this case.

Bermudez, C. J., concurs in this dissenting opinion.


text:
    No. 9739.
    John A. Morris et al. vs. J. L. Lalaurie et als.
    1. In all judicial partitions by licibation, or in kind, the liens, privileges and mortgages, such as are established by the Civil Code, which are recorded against the share of one of the co proprietors or co-heirs, by the mere fact of the partition, attach to the share of property or proceeds allotted to him, and are of right dissolved as to the shares of the other heirs or co-proprietors.
    2. .The foregoing rule is inapplicable to a licitation of property held in joint ownership, when it is adjudiefcated to a party having previously no interest in it. Such an adjudication is not in legal intendment a partition, but a sale, and does not affect the rights of the mortgage creditors.
    3. Taxes are not debts in the ordinary acceptation of the terra, but contributions required of the citizen for the support of the government, and their assessment does not constitute a technical judgment, against which sefe off can be pleaded; nor are they contracts between party and party, either express or implied. The assessment and collection of taxes is a legal proceeding, but not judicial process.
    4.All licenses or taxes assessed in the years 1870 and 1877 inclusive are a lien and privilege on the property of the person assessed, “any alienation thereof or incumbrance thereon notwithstanding,” until some are paid ; and shall bo paid “ by preference to all mortgages and incumbrances.”
    5 A sale of property, against which liens, privileges and mortgages exist and are recorded in favor of the State for taxes or licenses, reinaiu undisturbed thereby, and are not extinguished against the property, and not transfe. red to the proceeds of sale. This is true, whether it be a judicial sale or extra-judicial.
    A PPEAL from t.lie Civil District Court for the Parish of Orleans. Monroe, J.

      W. 8. Benedict and Henry JRmshcm for Plaintiff and Appellant:
    1. In partitions by judicial sale, any one interested in giving or receiving a clear title, or in having the proceeds distributed, may have the property freed from incumbrances, and the mortgages referred to proceeds. 35 Ann. 528, 531.
    2. By such sale the property passes disincumbered and mortgages are transferred to proceeds, 37 Ann. 321; 28 Ann. 714.
    3. Such salo shifts the liens or mortgages from the property to its proceeds. 27 Ann. 127.
    4. Purchaser cannot be compelled to pay tho price before he is tendered an unincumbered title. 27 Ann. 127.
    5. In judicial partitions in hind, the mortgages, liens and privileges against one of the co-proprietors attach to his share and cease to attach to the shares of the others, O. O. Art. 1338.
    6. As a corollary from the above, such mortgages, liens and privileges should, in partition by sale, attach to respective shares in proceeds. See in this connection 38 Ann. 108.
    7. In succession partitions by sale, the property passes free from mortgages affecting abares of co-proprietors, and such mortgages are transferred to shares of the latter in tbe proceeds. 38 Ana. 108, and authorities there cited.
    8. The same rule applies to partitions between major co-proprietors by judicial sale, as to partition of successions. 38 Ann. 108, 109 ; C. C, 1290.
    9. A succession partition by sale frees the property from tax privileges, and such privileges attach to proceeds. 33 Ann. 260. Iu this connection see 30 Ann. 1261; 23 Ann. 298.
    10. An adjudicatee at judicial sale, desiring a clear title, may call on those asserting rights on the property, to settle their claims contradictorily with each other. 35 Ann. 759.

      M. J, Cunningham, Attorney General, for the State, Appellee:
    1. Recorders, sheriffs, notaries public and other persons authorized to convey real estate by public act, are prohibited from passing or executing any act of sale or alienation whatever until the taxes due on the property sold or alienated have been first paid, to be shown by the tax collector's receipt or certificate to that purpose. R. S. sections 3615, 2616, 3620, 3621; sections 37 and 102 of Act 96 of 1877; sections 69, 70 and 71 of Act 96 of 1882; sections 74, 75 and 76 of Act 98 of 1886.
    2. A violation of this law is denounced as a misdemeanor, and subjects the officer offending to a severe penalty. Authorities cited in No. 1.
    3. No sale or other alienation of property can affect the taxes assessed thereon; but it may still be seized, advertised and sold as the property of the taxpayer to whom assessed, to enforce payment of delinquent taxes. Section 52 of Act 77 of 1880; sec. 66 of Act 96 of 1882.

      4. The ordinance for the relief of delinquent taxpayers in the Constitution of 1879, and the Acts of the Legislature passed subsequently to carry this ordinance into effect, have given a fixed status to properties upon which taxes prior to December 31,1879, are due. This class of property is subject to sale under Act 82 of 1884, and the rights of the State therein conferred cannot be impaired by proceedings in the courts which involve no question subject to judicial determination.
    5. An order of court erasing and canceling the tax-liens and privileges in favor of the State and transferring them to the proceeds of sale of the property, would change existing methods prescribed by the legislative power tor the collection of the revenues of government. Such an order would be violative of Article 15 of the Constitution.
    6. When, in a rule to secure the erasure and cancellation of tax liens and transferring tbe rights of the State to the proceeds of the sale of the property, the mover does not allege the unconstitutionaliry of the tax, the invalidity of its levy, or an illegality in the mode of procedure, no question is presented for judicial determination. In the absence of any such allegation, any interference on the part of the judiciary with tax measures or processes would be an usurpation of the functions of a co-ordinate department of the government.
    7. Any statute tending to insure the collection of the public revenues should be rigidly upheld and full effect given to its provisions. Cooley’s Constitutional Limitations, p. 70; 46 Wis. 175; 37 lb. 75; 42 lb. 502, 527; 43 lb. 48, 55; 45 lb. 519.
    8. Courts should rather assist in removing the obstructions which clog the wheels of government than interpose delays and obstacles which impede the collection of her revenues.
    9. Those provisions of the Civil Code under which privileges and mortgages are cancelled and transferred to the proceeds by succession, judicial and partition sales, only affect the privileges and mortgages treated of in the code.
    10. They are private laws, and do not affect or have reference to taxes or the mortgages and privileges securing them.
    11. Tax mortgages and privileges are established, regulated and controlled by the revenue laws exclusively. They are unknown to the code, and in no manner affected by its provisions.
    12. Privileges and mortgages affecting an entire property are not cancelled and transferred to the proceeds of the sale of such property made to effect a partition among co-proprietors.

      F. O. Zacharie, Amicus Owriw, on the side of the State.
   The opinion of the Court was delivered by

Watkins, J.

Under a decree of this court in John A. Morris et al. vs. J. L. Lalaurie consolidated with J. L. Lalaurie vs. John A. Morris, 34 Ann. 204, two pieces of improved real estate in this city were sold on the 11th of April, 1882, by the sheriff at public auction in block, and same were adjudicated to Andrew J. Murphy for $5,600, upon the following terms' of credit, viz: one-third cash, and the remainder on a credit of one and two years.

That decree recited that from the proceeds after deducting costs, charges and taxes, there shall be paid to Alfred Marchand one-third: to the Factors and Traders’ Insurance Company, one-third, and the remaining one-third to J. L. Lalaurie,” with the reservation to John A. Morris of certain mortgage rights.

This sale was made in order to effect a partition among the co-proprietors, by Imitation, the property not being susceptible of division in kind.

The certificate of mortgages discloses the existence of a large number of judicial mortgages and liens, privileges and tax mortgages, in favor of the State and city of Now Orleans, recorded against said property, and at various dates during the years 1870,1872,1873, 1874, 1875, 1876 and 1877, and aggregating large amounts, more than $2000 to the State and $20,000 to Widow Mary Murphy — and she had no interest in the property.

Andrew J. Murphy, as purchaser, took a rule on the parties in interest to show cause why all of said liens, privileges and mortgages should not be cancelled and erased, and same relegated to the proceeds of sale.

For some cause it was abandoned and the present one was taken by Alfred Marchand. one of the original co-proprietors, on the State of Louisiana, D. Pochelu, Madame 'Bougére and Mrs. Mary Murphy, to same effect.

On the trial, judgment of non-suit was entered in respect to city taxes without objection, and was made absolute in respect to the respective mortgages of John A. Morris, Madame Bougére, D. Pochelu, and Mrs. Mary Murphy; but it was discharged and disallowed in respect to inscriptions of liens, privileges and mortgages in favor of the State, during the years enumerated, in the mortgage certificate.

From this judgment, plaintiff in the rule alone appeals.

The only question presented for our consideration and determination is whether this partition sale had the legal effect of discharging the liens, privileges and mortgages in favor of the State for taxes, and transferred them to the proceeds of sale.

The answer of the Attorney General affirms that no sale, pledge, alienation, or incumbrance on real property, can affect the State taxes assessed against the same; and that same may be lawfully seized and sold in satisfaction thereof, notwithstanding any alienation of same, or prior incumbrance thereon.

I.

We will argue this question on the hypothesis that all the proceeds yielded at the sale were cash, though, in point of fact, only one-third of $5,600 was paid in cash.

The various decisions cited as bearing on the question, are necessarily predicated on R. C. C. 1838, 1290 and 1383, and are controlled by them.

It is provided by R. C. C. 1338: “’In all judicial partitions, when the property is divided in Trind, tbe mortgages, liens and privileges against one of the co-proprietors shall, by. the mere fact of the partition, attach to the shares allotted to him by his co-proprietors,” etc.

It is provided by R. C. C. 1383 : “ The heir to whose share an immovable, or some other thing liable to be mortgaged, has fallen, is not bownd by the mortgages which his co-heirs may have given on their individual shares of the same, previous to the partition; and these mortgages are dissolved of right, except upon the property which falls to the heirs who have given the mortgages.'1'1

It is provided by R. C. C. 1290: “All rules established in the present chapter * * are applicable to partitions between co-proprietors of the same thing,” etc.

These principles were recognized in Beltran vs. Gauthreaux, 38 Ann. 106, and those previously announced in 33 Ann. 53, Life Association vs. Hall, and 35 Ann. 531, Bayhi vs. Bayhi, were affirmed.

It is also declared that a partition by licitation has the same effect, and that “ mortgages should attach to the share of the proceeds coming to the co-proprietor liable for the same.”

We do not understand these decisions as going to the extent of declaring that a judicial sale for the purpose of partitioning real property of co-heirs or co-proprietors could discharge judicial or other mortgages resting upon the entire property in favor of some third person.

It has frequently been held that though a probate sale, made in pursuance of an order of court, discharges the mortgages granted by the deceased, yet it does not affect those with which the property was burthened when it came into his possession. 6 N. S. 386; 5 La. 470; 9 La. 12; 3 R. 5; 11 Ann. 383; 29 Ann. 385.

The provisions of Sec. 2 of Act No. 71 of 1843, are literally incorporated into, and constitute R. C. C. 1338.

Long before its' incorporation into the Civil Code in its revision in 1870, this statute had passed under judicial interpretation by this Court.

In Lecarpentier vs. Lecarpentier, 5 Ann. 497, it was said: “ The act of 1843, relied on by the plaintiffs, is not applicable to licitations under which the property is adjudicated to a party having previously no interest in it. Such an adjudication is not, in legal intendment, a partition. It is a sale, and does not affect the rights of mortgage creditors.

“Any intimation of this Court to the contrary must have originated in a misreaclmg of the Act of 1843.”

A sheriff’s sale does not discharge a special mortgage recorded against the property sold, unless the amount of the hid exceed it in amount. C. P. 706.

A sheriff’s sale under fi. fa. is always made subject to legal and judicial mortgages. C. P.710; 5 Ann. 736.

All judicial sales are made in pursuance of special laws, and can have no other force or effect than are thereby given to them.

II.

But, conceding for the argument, that the effect, claimed by the plaintiff in the rule, can be given to the alleged partition sale — can it be argued therefrom that it likewise discharged the State’s liens, privileges and mortgages to secure the payment of delinquent taxes of the years 1870 to 1877, inclusive ?

The recordation of such liens, privileges and mortgages, and the enforcement thereof must, of necessity, be controlled by the revenue statutes in force at the date of assessment thereof and the miscellaneous ordinances for the relief of delinquent taxpayers and statutes enacted in conformity thereto. Act 98 of 1882 and Act 82 of 1884; State ex rel. Taylor vs. Houston, 37 Ann. 56.

Counsel for plaintiff relies mainly on Succession of J. W. Zacharie, 30 Ann. 1260, and Succession of Dupuy, 33 Ann. 256.

The Court said in the former case: “The property on which were assessed the taxes, the amount of which is claimed by the city, has been sold under orders of the Second District Court, and it is clear that any right which it may have had on said property was transferred from it to the proceeds of the sale.”

Of that decision it is sufficient to say that the sale in question was made in that succession; and the city opposed the executor’s account, “for the reason that he refused to class it as a creditor of the succession foi the taxes of 1860 to 1877.”

Of the decision in the latter, much the same may be said. The city opposed an account in that succession upon the same ground. The Court said: “When the sale took place the privilege attached to the proceeds and was the first privilege thereon, and the city had a-legal right to claim taxes out of these proceeds and enforce her privilege therefor by such direct proceedings as was instituted in this case.”

Neither the State nor its officers were parties to either of those proceedings, and whatever may be said of their force and effect as to the taxes of the municipal corporation consenting thereto, those cases cannot conclude the right of the State when she appears in court and asserts her rights, contradictorily, resisting a like claim by her citizens.

It is true that R. C. C. 1338 employs the phrase “the mortgages, liens and privileges;” but it is fair to assume that the mortgages, liens and privileges recognized and established by that Code, alone, were in contemplation of it.

They are merely securities for debts and accessories to principal contracts. R. C. C. 3278, 3284. They “can be claimed only for those debts to which they are expressly granted in this Code.” R. C. C. 3185,

Their effect cannot be extended to any cases not therein enumerated by inference or comparison.

In City of Shreveport vs. Gregg & Ford, 28 Ann. 836, it was held: “ It is correctly contended on behalf of the plaintiff, that taxes are not debts in the ordinary sense of the word, but contributions required of the citizen for the support of the government, and without which it could not be supported, and they cannot be seized, sold or compensated.” 26 Ann. 694, Geren vs. Gruber.

Cooley on Taxation says: “ Taxes are not debts in the ordinary sense of the term, and their allowance will' in general depend on the remedies which are given by statute for their enforcement. * * *

Taxes are not demands against which a set-off is admissible; their assessment does not constitute a technical judgment; nor are they contracts between party and party, either express or implied; but they are the positive acts of the government through its various agents, binding upon the inhabitants, and to the making and enforcing of which their personal consent, individually, is not required.” 30 Ann. 541, City vs. Davidson; 36 Ann. 436, City vs. Waterworks.

In Union Towboat Company vs. Bordelon, 7 Ann. 192, it was held: “ It is true, as contended, that the functions of one department of government are kept distinct, and the executive cannot divest judicial process. But the assessment of taxable property and the collection of taxes are legal proceedings, or process but not judicial proceedings, or process. If these proceedings take place illegally '* * * then the functions of the judiciary may he invoked, but not otherwise.”

III.

Since the line of demarkation has been clearly drawn between debts and taxes and privileges and mortgages, therefore, it were well to examine the revenue laws under which the taxes under consideration were assessed, and ascertain their requirements in regard to their preservation and enforcement.

Section 38 of Act 114 of 1869, declares: “That all licenses and taxes assessed by law on the property of any person, firm, company or corporation, are hereby declared a lien and privilege on the real property of such person, firm or corporation for his or their entire tax, mvy alienation thereof or any incumbrance thereon notwithstanding; and shall exist in favor of the State and parish for the amount of taxes assessed, and shall bepaid by preference to all mortgages andineumbrances."

Section 37 of Act 42 of 1871, is couched in even stronger terms. It includes, “movable and immovable property,” and confers alien and privilege for the “entire license or tax,” and continues same in force “until same be fully paid," not alone in respect to the licenses and taxes, but likewise “ penalties and costs and charges.”

This revenue law remained in full force, and the taxes of. all the intermediate years were assessed in pursuance thereof until the 20th of April, 1877, when Act 96 of that year went into operation.

Section 36 of that Act provides : “That from the filing, of the assessment rolls in the office of the recorder, as provided in this act, the property therein mentioned shall be affected with a lien, privilege and right of pledge, which shall rank all other privileges and exist without further registering until the payment of the tax *' * provided that the privilege and right of pledge be not considered as lasting a longer period than three years.”

The effect of these statutes has been interpreted by the. ordinance for the relief of delinquent taxpayers.

It declares that in the event the taxes and licenses due the State prior to the 1st of January, 1879, are not fully paid by the 1st day of January, 1881, “the interest, penalties, costs, fees and charges hereinbefore recited, shall revive and attaeh to the property upon which the taxes ccnd licenses m-e due, and such property shall then be sold in the manner provided by law, and the title to the purchaser shall be full and complete."

To put this ordinance in force, Act 98 of 1882, was enacted.

Section 1 declares: “ That it shall be the mandatory and imperative duty of each tax collector in the city of New Orleans, and of each sheriff and ex officio tax collector throughout the State, * * within four months after said promulgation, to advertise for sale * * all property upon which any taxes due to the State of Louisiana or to any parish, prior to January 1, 1880, remain unpaid or unsettled by partial payment,” etc.

Section 1 of Act 82 of 1884, is couched in similar langnage.

Prom these express and unambiguous statutory provisions, there can be no reasonable doubt of the legislative intention in their enactment. They were intended for the sole purpose of enforcing the faithful and certain collection of the State’s revenues; and in order to accomplish this result, the law declared that the lien and privilege of the State for taxes should rank and prime any and all other liens, privileges and mortgages, and that same should adhere to the property assessed for the entire license or tax of the person assessed, any alienations thereof or incumbrances thereon notwithstanding.

We are, therefore, clearly of opinion that the alleged partition sale did uot have the effect of discharging from the property sold the lien, privilege or mortgage of the State for taxes assessed in either one of the years enumerated on the certificate of mortgages, and that same is entirely unaffected by the alienation thereof or the incumbrances thereon; and that the property passed into the power and possession of the purchaser charged therewith, and also the penalties, charges and cost.

Judgment affirmed.

Poché, J. J concur in the decree.