text:
    No. 9646.
    A. A. Farmer vs. W. C. Hafley, Admr.
    A peremptory exception, which goes to tlie very foundation of the suit, such as tbe alleged nullity of the citation, should be decided in limine, hence it is bad practice in a court to refer similar exceptions to the merits.
    If there is no citation there can be no trial on the merits, lienee the injustice of subjecting the parties to the trouble and expense of introducing evidence on the merits, when eventually the case may go off on tbe exception.
    A judgment against an absent party on whom citation was served through his alleged attorney, in' fact, but who is shown not to be such an agent, is practically against a party who is not legally before the court, and is therefore a nullity.
    PPEAL from the Tenth District Court, Parish of Red River. , Hall, J.

      Kennm'd, Howe & Prentiss, for Plaintiff and Appellee:
    The beneficiary heir, residing out of the State, becomes, when he accepts the administration of a succession in this State, subject to the provisions of the law now embodied in Section 14 of the Revised Statutes of 1870. Sue. of Penny, 10 Ann. 292.
    Under the prayer for general relief the court will grant such further relief as the averments of the petition will justify.
    Espinóla vs. Blasco, 15 Ann. 426, 427, and cases cited, 14 Ann. 719.

      Montfort 8. Jones, on the same side.

      L. B. Watlcins, for Defendant and Appellant:
    I.
    In the choice of an administrator the preference shall he given to the beneficiary heir over every other person, if he be of age and present in the State. R. O. C.X042.
    The beneficiary heir is entitled to the administration of an estate, though he be not a resident of tbe State, 10 Ann. 290, Succession of Penny, R. C. O. 1045.
    It suffices that the heir be actually present when the application for administration is made. 3 Ann. 262, Succession of Williamson 12 Ann. 610, Succession of Sloone.

      II
    If a beneficiary heir, who resides out of bhe State of Louisiana, may be appointed administrator of a succession that is opened in this átate, his subsequent non-residence could not constitute a ground for his removal therefrom, under R. C. C. 1158.
    The failure of an administrator to file an account furnishes no ground for his dismissal from office. If he has been ordered by the court to file an account and fails or refuses so to do, he may be removed for disoybeying the order. 28 Ann. 800, Succession of Head. 34 Ann. 533, Congregation vs. Faculty.
    IT.
    The sale by an heir to a stranger, of an unliquidated interest in a succession, does not con stitute the vendee an heir. He certainly could not become such without he had subjected himself to all the charges for which the estate is responsible. R. C. C. 884. 871, 872, 873.
    T.
    In 1875, Mary Farmer, one of the collateral heirs of the deceased, the mother of A. A. Farmer, joined W. C. Hafley, her brother, and aided him in procuring the administration of the successjon of deceased, and her son and transferee is bound by his mother’s acts, and is estopped from disavowing or gainsaying them. T. pp. 8, 9.
    In 1877, Mary Farmer was one of the plaintiffs who instituted the suit of Heirs of Stephen and Seth Bedford vs. Williams and Hickson, acting through the present plaintiff, A. A. Farmer, as her agent. T. p. 11.
    On the 6th of December, 1880, this suit was compromised and the defendants’ title recognized, and therein A. A. Farmer appeared as her agent again.
    “ One who buys theuinterest of an heir in a succession, the administration of whichis closed, and the property of which is in the possession of the heirs, does not become liable for that heir's share of the debts of the succession.” 30 Ann. 440, Sevier vs. Cordon.
    Hence, he is without right, or responsibility, as an heir.
    TI.
    When an heir assumes the quality of heir in an unqualified manner, in some authentic or private instrument, or in some judicial proceeding, the acceptance of the succession is express. R. C. C. 988.
    The effect of a simple acceptance of the succession, whether express or tacit, is such that when made by an heir of age, it hinds him to the payment of all the debts of the succession, personally and out of his own property. R. O. C. 1013, 1423, 992.
    ‘ The institution of a suit in the capacity of an heir of a decedent, or the sale by an heir of his interest, as heir in a succession, amounts to the acceptance of the succession, pure and simple.” 2 H. S. 475 ; 8H.S.242, 2 La. 299; R. O. O. 947 ; 15 Ann. 170 ; 3 Ann. 502'; 29 Ann. 349 ; 21 Ann. 278; 25 Ann. 56 ; 30 Ann. 93; 29 Ann. 837 ; 25 Ann. 220, 56; 33¿Ann. 827.
    TU.
    The defendant administrator is entitled to appeal from a judgment of the court a qua — rendered ecc,gracia — destituting him from office as an unfaithful fiduciary, and, as he contends, without evidence; and at the demand of one not an heir. R. O. C. 1160.
   The opinion of the Court was delivered by

Poché, J.

This is a suit for the removal of the defendant as admintrator of the succession of Seth Bedford, opened in the year 1874.

The principal complaint against him is that he permanently resides out of the State of Louisiana, that he has been absent continuously for over one year without having provided for his place, as administrator, being filled by another, and without rendering any account of his administration.

Citation was prayed for and was served on I. F. Stephens, a resident of the parish, alleged to be the agent and attorney in fact of the absent and non-resident administrator. This action was met on the part of the defendant by peremptory exceptions, one of which was that I. F. Stephens was not then and had never been his agent as alleged.

He also pleaded the exception of no cause of action, and several other exceptions which it is useless to enumerate.

The exception of no cause of action v as overruled, and by order of the court, all the other exceptions were referred to the merits.

At a subsequent term of the court a default was entered against the defendant, and later on, during the absence from sickness of his counsel, a trial took place and a judgment was rendered overruling all the exceptions, removing the defendant as administrator and ordering him to file an account of his administration within a specified time.

Defendant appeals from that judgment, and has embodied the substance of his exceptions in an assignment of errors, in which he also charges error in the ordei of the court referring his exception denying the agency of Stephens, to the merits. That ground is sustained alike by reason and by law, and it will decide the fate of the controversy in the present appeal. The habit of referring exceptions which go to the very foundation of the suit, to the merits, by which process parties are unjustly subjected, to heavy costs, in procuring unnecessary evidence which burdens the record on appeal, is unfortunately growing to an alarming extent in the District Courts of the State.

While it must be deprecated generally, it must be specially censured when the exception which is referred to the merits, is one which involves the legality of the citation, without which there can be ho suit and therefore no trial. That is the nature of the question presented by Defendant’s exception to the capaeitiy of Stephens as his alleged agent to stand in judgment for him.

If Stephen’s was not the agent of Hafley, as alleged, the citation served on him was an absolute nullity, and the defendant was not before the court. If there was no party-defendant there were no merits to w.hich the exceptions could be referred.

The injustice of such a ruling is as great to the plaintiff as it is to .the .exceptor; it almost amounts, to a denial of justice.

The evidence which we find in the record shows conclusively that Stephens was not the agent or attorney in fact of the non-resident administrator, lienee tlie lower court rendered a judgment against a defendant without citation, or answer.

The mere statement of the proposition carries with it the nullity of the judgment.

It may be true, as contended by appellant’s counsel, that Halley, the absent administrator, had no authorized agent to represent him in court in matters connected with the succession, and that by means of which omission, he has actively violated the law and unpardonably neglected his duty.

But it is yet more undeniable that no judgment can be rendeied against him until he is properly and legally brought before the court.

As these considerations have successfully sapped the foundation of the whole proceeding, the superstructure must crumble to the dust, and nothing is left to do but to brush away the debris.

It is therefore ordered that the judgment appealed from be annulled, avoided and reversed, and that plaintiff’s action be remanded to the lower court for further proceedings according to law, that he pay costs of appeal, and all costs from the service of citation, other costs to abide the final determination of the case.


source: Caselaw Access Project

author: Manning, J. Poché, J.

license: Public Domain

text:
    No. 9677.

    Successions of Zenon and Elise Labauve.
    An appeal does not lie from an order commanding an administrator to shew cause on a given day wby he should not be oidered to furnish additional security for the faithful performance of his official duties. irreparable injury can be wrought him by a mere order to fhew cause. JVon constat that on the trial of the rule it will be discharged and his bond will be found sufficient.
    APPEAL from the Twenty-third District Court, Parish of Iberville. Talbot, J.

      A. Talbot and Jonas & Nixon for the Administrator, Appellant.

      A. Hebert and F. F. Grace, contra.

   The opinion of the Court was delivered by

Manning, J.

One of the heirs of these two successions moved for a rule on D. J. Campbell, the administrator, to shew- cause why he should not be ordered to furnish an additional bond, and the rule was ordered to issue. The administrator moved to rescind that order, which being refused he appeals.

On Motion to Dismiss.

The grounds of the motion aie:

1st. “That the motion to rescind [is in the nature of an exception of no cause of action, and was tried on the face of the papers without evidence.”

If the motion to rescind is in the nature of an exception of no cause of action, it was properly tried on the face of the papers without evidence. There is no other way to try that exception.

2d. That the order overruling the motion to rescind is interlocutory and works no irreparable injury, and that the rule has not been tried on its merits.

That ground is well taken.

The motion for the rule opens with irrelevant and unnecessary allegations, such as that the administrator had qualified under a bond never approved by the court, that the sureties are non-residents of the parish, that he has not administered the estate with care and prudence and has made payments or distributions in an arbitrary manner, and the like — all tending so to confuse the mover’s pleading that until we read his concluding allegation and his prayer for relief it seems doubtful whether his motion has not for its object the removal or destitution of the administrator, which would ensure its dismissal under the rule recognized in Succession of Sullivan, 25 Ann. 474, and Succession of Calhoun, 28 Ann. 323.

The last and substantive allegation is that a plantation belonging to the successions has lately been sold and the proceeds thereof are in the hands of the sheriff, and that the mover believes and has reason to fear that these pioceeds will be lost to the estates if they are suffered to go into the hands of the administrator under the existing condition of his bond. Then follows the prayer, and the nature of the proceeding is determined by the relief sought therein:

“Wherefore your appearer moves the court and prays for a rule to issue commanding said administrator, within a delay to be fixed by the court, to shew cause why he should not furnish an additional bond with good and’solvent security conditioned according to law, before the amount now in the hands of the sheriff of this parish shall be paid to him; and your appearer prays that the sheriff be-ordered to hold said sum during the pendency of this rule and until the further order of this court.”

This shews that the relief sought is that sanctioned by Sec. 10 Rev. Stats., which authorizes any person interested to require an administra'or to give new and additional security for the faithful performance of his duties as often as the court, on motion to that effect, may judge it to be necessary.

Tile rule was ordered to issue commanding the administrator to shew cause on the first day of the next term why he should not furnish additional security, and the sheriff was ordered to retain in his hands the proceeds of sale of the plantation, but should the administrator furnish additional security approved by the court pending the rule, then that the funds in the sheriff’s hands be turned over to him.

The appeal is really from this order, although in form it is from an order refusing to rescind it.

The terms of the order shew that irreparable injury cannot be done by it. Wcm constat but the rule will be discharged on trial and his bond will be adjudged sufficient. The administrator has not been ordered to furnish the security or be dismissed. It has not been decided that he shall furnish additional security, nor that the mover has established the truth of his allegation of insecurity of the funds under the administrator’s bond ns it now stands. The order is merely that he shew cause why he should not be ordered to give additional security, and meanwhile that the sheriff keep the particular fund lately realized. But as if to deprive the administrator of any cause of complaint, and to exhibit unmistakably the lower judge’s conception of the nature of the proceeding, he added to his order that the administrator should receive the fund before any trial of the merits of the rule if he should give security approved by the court.

When the trial of the rule has been had below, and the evidence has been submitted and there has been judgment, the party injured thereby may be entitled to an appeal, but just now it is premature.

The appeal is'dismissed.

Dissenting Opinion.

Poché, J.

I Think that the motion to dismiss this appeal should have been’denied.

Conceding that the motion toTescind the orders issued against the administrator should be treated in the light of an exception, I find that on’the trial appellant had filed in evidence his letters of administration, and among'the numerous allegations contained in the rule, and whichTare declared*by’the majority as irrelevant, I find none which points out’any defect in tlie^bond,'occurring since the letters of administration had been issued. As Those allegations make up the only grounds of the rule, and;they~are discarded,"as irrelevant, it appears that there are no allegations at all.

Now, our jurisprudence lias settled tlie rule that, “letters of administration make full proof of the party’s capacity until they he revoked. They must have their effect, and the regularity of the proceedings on which they issued cannot he examined collaterally.” Duson vs. Dupré, 32 Ann. 898, and authorities therein cited.

It follows, therefore, that the allegations in the rule., which were a collateral attack on the validity of the letters of administration, were not sufficient to disclose a legal cause of action, even under Section 10, Rev. Stat., and that the administrator’s exception should have, been maintained, and hence that he has suffered irreparable injury from a judgment which thus allowed a collateral attack on his capacity.

Under the allegations that his bond was void ab initio, tlie order made against him to furnish a new bond implies the judicial assertion that his bond is defective and that his office should be vacated.

As a consequence of that order, the effect is to withhold from him the funds belonging to the successions which are under his administration, which is thus paralyzed. He is suspended from his functions quoad those funds, and it is easy to see that he may thus be irreparably injured.

If he cannot at this time appeal from a judgment which produces such effects, it is difficult to perceive at what time or at what stage of the proceedings the right to appeal will accrue so as to afford him effective protection.

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


author: Fenner, J.

text:
    No. 9648.
    J. M Woodward, Admr., W. T. Woodward, Admr., Substituted, vs. J. T. S. Thomas et als.
    The administrator of a succession which, though apparently solvent, owes debts and is unsettled, and which the heirs, though present, have never accepted, may bring a real action for the revendication of property claimed to belong to tlie succession and held by adverse title not derived from the decedent, in his own name and without joining the heirs
    The law and jurisprudence on the subject fully reviewed.
    APPEAL from the Tenth District Court, Parish of Red River. Hall, J.

      L. B. Watkins, for Plaintiffs and Appellants:
    I.
    In case heirs neither accept nor reject a succession, it becomes the duty of the judge to appoint one as administrator. R. C. 0.1041.

      In such case the beneficiary heir is entitled to preference. B. O. C. 1042.
    Administrators thus chosen have the same powers, and are subject to the same responsibilities as the cuiators of vacant estates. B. O. C. 1049.
    Administrators thus appointed shall proceed to the sale of the property of the succession, and to the settlement of its affairs, and to the distribution of the surplus, above debts, among the heirs. E. O. C. 1058.
    Thepowers aud duties of administrators extend further, and are broader and more comprehensive than those of curators of vacant successions and absent heirs, and extend to all suits in which they are obliged to act. B 0.0. 1155.
    II.
    There is no analogy between the powers of an administrator and those of an executor. Those of the latter are a’one derived f'-ora dispositions mortis causa. E. 0. 0. 1570, 1574,1659.
    If the testator has not given his executor seizin of his property, the latter cannot acquire it. It. 0. C. 1659.
    ITT
    The cases chiefiy relied upon by the judge a quo were those in which the powers of executors were defined. 6 La. 97; 34 Ann. 322; 37 Ann. 418; 9 Ann. 302; O. P. 123.
    In such cases it was nececsary that the heirs be made parties.
    IT.
    In another class of cases cited by him, the court held that an administrator cannot sue to annul simulated acts of the intestate, whose succession he represents, 21 Ann. 150; 18 Ann, 51; 6 Ann. 494; 14 Ann. 610; 12 Ann. 684,759; 30 Ann. 580.
    Otherwise if the rescission of such acts be necessary to pay debts of deceased.
    This suit was brought to annul a tax sale. It does not fall in either category mentioned. In such case au admuisfcrator has full authority. E. O. 0. 1049, 1155; C. P. Ill; 9 Ann. 589; B. C. C. 5L, 1113; 26 Ann. 214 ; 14 Ann. 156 ; 33 Ann. 1225, 1057.

      JSgan & Pierson for Defendants and Appellees:
    When the succession is so abundantly form ventl property in possession, and the widow and heirs are all of age and present in the State, (to whom alone the residuum belongs after paying debts ) the administrator alone without being joined by the heirs and widow, (who alone are interested), cannot sue for or stand in judgment to annul an alleged tax sale under which defendant claims, and is in possession under a tax sale made of the property, as that of a thiid person prior to the death of the deceased, whose succession is being administered 37 Ann. 417, 34 Ann. 322; 30 Aun. 576-80;, 21 Ann. 150; 9Ann. 213-302; 6 La. 97.
    An amendment to pleadings is where a party to the suit offers to amend or alter his pleadings previously made in court. O. P. 419. But a petition by third persons asking to become parties to the suit, either by joining the plaintiff or defendant or by opposing oneorbotk, is an intervention. C. P. 389.
    An amendment or intervention comes too late after judgment sustaining the peremptory exception of want of proper parties and of no cause of action in the plaintiff’s petition. 35 Ann. 281; 34 Ann. 323 ; 7 K. S. 645.
   The opinion of the Court was delivered by

Fenner, J.

This is an action of revendication of certain real estate, claimed as the property of the succession, but in the adverse possession of a third person under a title derived from a tax sale, which is alleged to be null and void.

The action was brought in the name of the administrator alone and was met in limine by an exception that the plaintiff in his petition “has set forth no necessity or right to bring this suit -without joining the heirs as co-plaintiffs with him or that it is necessary that lie should recover the property in question in order to discharge the debts and charges of the succession,” and that “the heirs should have been joined as parties to the suit.”

This exception was overruled by the court and thereafter the defendants filed answer to the merits.

Subsequently the defendants filed the following peremptory exception : “ That this is a real action, and all the heirs ave present and represented in the State; said succession is solvent. Defendants except that, this being a real action, the right of property and the right to bring thisjsuifc rests alone in the heirs and not in the administrator.”

Plaintiff opposed to this exception the ruling on the former exception as res judicata; but the court overruled this plea on the ground that the subject matter of the two exceptions was not the same. This was not error. The first exception wont to the sufficiency of plaintiff’s allegations on the face of the petition, and the ruling on it merely decided that it -was not essential for an administratior, in bringing such an action, to allege the solvency of the estate or the absence of the heirs.

The second exception tendered an issue of fact and assumed the burden of proving the facts alleged as a basis for the legal right claimed. The issues were different and the judge rightly overruled the plea of res judicata.

On hearing, the proof showed that all the heirs were majors and present in the State. On the question of solvency, the evidence of a single witness was introduced showing, in substance, that the inventoried value of the succession property, consisting of lands, was about $16,000; that the succession owed debts of about $1,600 to persons outside of the family, besides a claim in favor of one of the heirs of $4,000 or $5,000, concluding with the statement: “The succession is solvent and is worth, at the inventoried value, some $6,000 or $8,000 over and above the amount of its indebtedness.”

Upon this evidence, the judge maintained the exception and dismissed the suit, basing his ruling on the legal proposition that the administator of a solvent succession, when the heirs are present or represented, cannot maintain a real action, in his own name, without joining the heirs as parties.

The question presented is, whether an administrator of a succession, which has never been accepted by the heirs, and which, though apparently solvent, owes large debts, can maintain a real action to recover property claimed to belong to the succession and held by adverse title, not derived from the decedent, and the attack on which involves no-assault upon the latter’s acts.

We have examined every case referred to by the judge a quo or by the defendant’s counsel, or which we have been able to find in the books, without discovering one applying the necessity of making the-heirs parties in such an action, to an administrator situated like the-plaintiff herein.

We shall now review them in their chronological order :

Executors of Hart vs. Boni, 6 La. 97, was an action by executors with seizin, to annul a donation int<¡rvivos of decedent, and it was held that such executors could maintain the real action, but that, if the heirs were interested and were present or represented, they should be made parties.

Scott vs. Key, 9 Ann. 213, was a case where the defendant was administrator of one who had died in possession of slaves and movables which had been duly inventoried as part of bis estate and were-held by the administrator in his capacity as such. Ho had paid all the debts of the succession. An action was brought against him individually, for the property, as a trespasser; and the court held that he-should have been sued as administrator and that the heirs should be-joined with him.

Cronan vs. Executors, 9 Ann. 302, simply enforced the letter of Article 123, C. P., that “all real actions must; be brought both against the-executor and the heirs present or represented.”

Succession of Weigle, 18 Ann. 49, involved the right of an administrator to attack authentic acts of his decedent on the ground of simulation, when not alleged to bo in fraud of creditors, and the court, doubting whether judgment in the case would bo binding-on the forced heirs who could alone attack such acts, remanded the caseto allow such heirs to become, or be made parties. To same effect, see 6 Ann. 494; 14 Ann. 610; 12 Ann. 684, 759.

The same case, 21 Ann. 150, simply held that, the heirs being necessary parties and having become parties, they should have been made-parties to the appeal which, in failure thereof, was dismissed.

Ledoux vs. Burton, 30 Ann. 576, was an action by the administrator of a succession which had no creditors attacking the validity and reality of sales made by the decedent, and the Court held that the heirs i>resent or rejiresented were necessary parties to such an action.

Bird, ex’r, vs. Generes, ex’r, 30 Ann. 576, simply enforced the letter of C. P. 128.

Giddens vs. Mobley, 37 Ann. 417, was the case of an executor of a foreign decedent whose debts, legacies and charges had all been jiaid, who qualified in this State solely for the purpose of suing for land situated here; and we held that, under such circumstances, the “land had devolved to the heirs, who alone could sue for it.”

It is obvious that none of the foregoing cases touch the question now before us. They all rest upon the peculiar powers of executors or upon the particular status of the administrators in the several cases, viz: when, in the absence of creditors, the administrator assumed to assail acts of the decedent which only forced heirs could be heard to attack.

On the other hand, in the case of Pauline vs. Hebert, 14 Ann. 150, which was a real action brought against the administrator alone, and where the latter’s capacity to stand in judgment was raised, the Court said: “We see no objection to the form of the action. The heirs may not have accepted the succession, and as the administrator must represent the creditors also, we see no objection to his standing in judgment for the protection of the rights of all parties in the effects of the succession entrusted to his administration. The article (123) of the Code of Practice relative to testamentary executors is not applicable. The powers of the testamentary executor weie very different from those of the administrator.”

Turning now to the textual provisions of our Codes, we find that there are four classes of persons to whom are confided the administration of successions, viz: 1st. Executors, when there is a will; 2d. Curators of vacant estates, when the heirs are unknown or reject the succession;' 3d, Curators of absent heirs, when the heirs are absent and not represented in the State; 4th. Administrators, when the heirs, though present or represented, do not accept or reject the succession, ■but avail themselves of the benefit of inventory.

With regard to executors, Art. 123 of the Code of Practice especially provides that real actions cannot be brought against, them without making the heirs parties; from which it is inferred that a like rule applies to real actions brought by them, though this is not settled as to .all cases. But if it had been intended that the same rule should apply to administrators, it is strange that it should not have been so expressly provided. On the contrary, Art. 122 provides that all kinds of actions maybe brought against curators of vacant successions, and that judgineuts rendered against such curators shall be “as valid and efficacious -as if they had been rendered against the heirs themselves.”

We note the language employed in the first clause of the article, viz: When all the heirs are absent and not represented in the State,” but sncli language is surplusage as applied to curators of vacant estates, which are only vacant when the heirs are unknown or reject the succession. This and other clauses of the article apply to curators of absent heirs.

Besides, Art. 1113 of the Civil Codo liad already provided that all kinds of actions should be brought against the curators of vacant successions.

Now, when we read in Art. 1049 of the Civil Code that administrators. “ have the same powers and are subject to the same duties as the curators of vacant estates,” we naturally assimilate their rights to sue and he sued to those possessed by such curators rather than to those of executors.

Besides, Art. 1058 of the Civil Code requires administrators to settle -all the affairs of the succession and, after payment of the debts, to pay ■over the surplus to the heirs.

Tiiis implies the right and duty to recover the property, as much as to collect the debts, of the succession. Otherwise he cannot settle its affairs and ascertain the surplus. It is not for him, it is true, to assail the validity of acts done by the decedent, unless necessary for the protection of creditors; and it lie have already settled all the debts and charges of the succession, it is improper for him to institute new actions, because the objects of his agency have been fulfilled and be .should give way to the heirs who are the only persons interested and -may assert their own rights.

But certainly, so long as the debts are unpaid and the affairs of the succession are unsettled, if he discover property belonging to the succession held by adverse title not derived from the act of decedent, it is his duty to reclaim it, and lie has the right to sue for it without joining tlie heirs.

Such heirs are exercising their legal right of awaitiug the settlement •of the succession, in order to receive what may come to them without incurring liability for its debts; and for the preservation of this right it is essential they should do no act indicating an intention to accept or which they would have no right to do except in the quality of^heirs. C. C. 988. They could not join in a suit for succession property except dn the quality of heirs, though perhaps, under Art. 998 they might es■cape tlie effect of acceptance by proper “reservations and protestations.” But if they prefer to stand aside and let the administrator act in his own name, we see no reason why they should not be permitted to do so.

Under the circumstances of this case, we think the administrator had the right to stand in judgment and that defendants’ exception should have been overruled.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed; that the exception of defendants be overruled at their costs; and that the case he now remanded, to be proceeded with according to law, defendants and appellees to pay costs of this appeal.


author: Porin':. J.

text:
    9647.
    Succession of Seth Bedford.—In the Matter of the Application of A. A. Farmer to be appointed Provisional Administrator.
    An administrator of a succession against whom a judgment has been rendered in order 1o remove him, lias the right of appeal from said judgment, and having perfected such an appeal, lie has a right of appeal from an order of the court appointing another person to-succeed him in the administration of th succession: such an appeal may bo treated as an auxiliary to the other»
    The Supreme Court has jurisdiction over a contest involving the right of administration of a succession, if the assets of the latter exceed §2,000. * *
    APPEAL from the Tenth District Court, Parish of Red River. Hall, J.

      J. I). Poach, Kennard, Howe & Prentiss, and M. 8. Jones, for Applicant and Appellee.

      L. B. Watldns, for Opponent and Appellant:
    Since the revision of the Civil Code and Statutes, in 1870, there has been no law in force, autliorizizing the appointment of a provisional administrator, with the exception of Act 87 of 1870, creating the office of public administrator, excepting the parish of Orleans, same was repealed by Act 74 of 1877. 30 Ann, 101, Succession of J"ohn Ciarle.
    IX,
    Upon tbe applicant’s own showing, he should have ceen required to give bond for §25,000 K. C. C. 1127,1048.
    III.
    An appeal lies from an order appointing, as well as from an order removing an administrator. It. C. C. 1120,1100.
    An appeal lies from a chamber’s decree. Act75ofl804; 34 Ann. 599, 588; 37 Ann. 232, 201 ; 21 Ann. 733. *
    IV.
    Had the appointee been qualified, an injunction would lie. 30 Ann. 507,
    V.
    The suspensive appeal of Hafley did not prevent Farmer from qualify ing, if he had furnished proper bond. H. C. C. 1120,1127,1048.
   Motion to Dismiss.

The opinion of the Court was delivered by

Porin':. J.

This appeal is a sequel of tl)e question just decided in the case of A. A. Farmer vs. W. C. Hafley, No. 9446, on the docket of this Court, and reference is made to that decision for a full statement of the facts which have a bearing on both cases.

After the finality of the judgment which purported to remove TIafley from the functions of administrator of the succession of Seth Bedford, Farmer asked and obtained an order appointing him provisional administrator of that succession on a bond of one hundred dollars.

This appeal is taken by Hafley from that decree, and the grounds of the motion to dismiss urged by Farmer will now he considered in th® .order in which they are presented by counsel:

1. That no appeal lies from the order appointing Farmer, and this •court is without jurisdiction.

As the whole ease has been submitted on the face of the record and on the motion to dismiss,” without oral argument or brief, by appellee's numerous counsel, we are left to surmise the precise meaning of this ground, as well as of the others, from the language used, 'and which is somewhat indefinite.

The right to appeal from such a it order as is herein brought up is granted in terms by Article 1120 of the Civil 'Code. True, the law provides that the appointment is not retarded in its effect by the appeal, hut in a motion to dismiss we are not concerned with the effect, but only with the right, of appeal. Succession of Clark, 30 Ann. 804.

In the absence of specifications we are left in the dark as to the ground of our want of jurisdiction, hut if it he rations materia’, we find a ready answer in an allegation in Farmer’s petition for the removal of Hafley as administrator, which is part of this record. He sets forth that there still remains in the succession assets, consisting of rights .and credits, and causes of action, amounting in value to $19,800.” This strongly points to our jurisdiction over the contested appointment of an administrator for such a succession, and corroborates the jurisdictional allegations in the petition supported by affidavit of appellant’s attorney.

2. That in any event no suspensive appeal could he taken therefrom.

The appeal was taken both in the suspensive and devolutive forms. If under the law it cannot suspend the execution of the judgment, it i» certainly good as a devolutive appeal. Under a motion fcojdismiss an .appeal it is not necessary to decide the specific character of the appeal.

3. That even If an appeal lies, it. has not been taken and perfected according to law.

Again we are left to surmise the precise meaning of general and loose allegations, which, in justice, should he overruled without giving any reasons.

But the record shows that the appeal was prayed for hy petition, and granted hy the cleric of the court, in the absence of the judge from the parish, and the law vests the clerk with full power in such cases. Act No. 75 of 1884.

The record further shows that citation of appeal was prayed for, and served on appellee, that a bond of appeal was furnished in accordance with the terms of the order of appeal, and that the transcript was filed here even before the date on which the appeal had been made returnable both according to law and according to the order. If anything else is required, counsel for appellee have omitted to inform us.

4. That said W. C. Ilafley has shown no appealable interest herein.

As the administrator proposed to be ousted in the case of Farmer vs.. Ilafley, he had undoubtedly an appealable interest in that judgment. The record shows that he had taken and perfected a suspensive appeal therefrom, he therefore had the right to bring up the present appeal a« an auxiliary to the other. C. C. 1160; Brown vs. Brown, 30 Ann. 504; Succession of Clark, 30 Ann. 804.

We are not concerned with the question involving the effect of his api>eal on the appointment of appellee pending his appeal.

The motion to dismiss this appeal is therefore overruled.

On the merits, the judgment appealed from, which is merely a consequence of the judgment which purported to remove Ilafley as administrator of the succession of Seth Bedford, must therefore share th® same fate. Under the effect of our decree in that case, Hafley remains administrator of the succession, hence there is no room for a provisional administrator or .any other kind of succession representative;, therefore the appointment of Farmer falls as a natural sequence from the reversal of the judgment which purported to create a. vacancy in the office of administrator of the succession.

We do not propose to discuss the legality of the appointment of a provisional administrator, or the alleged illegality of such an appointment, or the legal effect of any act which Farmer may have performed as provisional administrator, whether such an office is known to our-laws or not. Our conclusion is simply that there was no vacancy to fill, and that any and all appointments, whether legal per se, or not, of administrators to a snccescion already administered, are void. .

Tt is therefore ordered that the judgment or decree appealed from be annulled and set aside, and that Farmer’s application for appointment as provisional administrator of the succession of Seth Bedford be rejected, and that he be condemned to pay all costs in both courts.


text:
    No. 9633.
    The State ex rel. Jas. E. Trimble vs. Judge of the Third Judicial District.
    Prohibition lies against a judge who takes jurisdiction to decide a plea of recusation against himself, on the ground that he had been employed as advocate in the cause.
    A rule, taken in a cause in which final judgment has been rendered, calling defendant to show cause why a writ of capias ad satisfaciendum should not issue, and why he should not pay the judgment or be sent to prison, is a proceeding in the same cause, and the-judge who has been employed as advocate, even before the judgment, is subject to recu^ sation. Noria the case affected by the fact that ho had been the counsel of the party who claims his recusation.
    y^PPLICATION for Prohibition.

      W- S. Benedict for the Relator.
   The opinion of the Court was delivered by

Fenner, J.

Relator applies for a writ of prohibition restraining the respondent judge from proceeding farther in the trial of a certain issue arising in the case of School Board of Union Parish vs. J. E. Trimble.

The complaint is that the relator liad filed a plea of recusation of the judge, under Art. 338 C. P. and Act 40 of 1880, on the grounds that he had been “employed as advocate in the cause;” that the judge refused to recuse himself, and refused to refer the plea to a judge ad hocior trial, but himself tried and overruled the plea and maintained his right to try the cause.

Irrespective of the merits of the plea of recusation, it is clear relator is entitled to the relief sought, under our opinion as expressed in a very recent case, where we held, on both principle and precedent, that a judge is incompetent to determine a plea of Jiis own recusation, but must refer it for trial to a judge ad hoe called for the purpose. State ex rel. Segura vs. Judge, 37 Ann. 253.

The only difference between that case and the instant one is, that in the former the ground of recusation was being personally interested in the cause, while here the ground is having been employed as an advocate. It is a distinction without a difference, so far as the principio involved is concerned.

The facts arc, that the judge had been relator’s own counsel in the case of School Board vs. J. E. Trimble, which was finally decided in this Court in 1881, and is reported in 33 Ann. 1073.

The proceeding now taken is a rule on defendant to show cause why a writ of capias ad satisfaciendum should not issue, and why he should not pay the judgment or go to prison.

This rule is undoubtedly a proceeding in the cause of School Board vs. Trimble, in which the judge had been employed as an advocate. The high character of respondent renders superfluous his assurance that lie has no interest in the controversy.' But that is not the question. The law has made interest one ground of recusation and employment as an advocate another. Each is independent and equally effectual.

Nor does it make any difference that the judge had been relator’s •own counsel. The law makes no such distinction and we cannot make it. Nor does the law make any distinction between proceedings in a •cause after and ‘before judgment, or between proceedings before or after cessation of employment as advocate and settlement of all claims thereunder.

The law is unambiguous and we must apply it. as wc find it. If the proceeding (not merely formal) is in a cause in which the judge lias been employed as advocate, the condition of recusation prescribed by the law is fulfilled. See on the general subject: Bryan vs. Austin, 10 Ann. 612; Amacker vs. Varnado, 19 Ann. 381; State vs. Judge, 27 Ann, 225; Succession of Fuqua, 27 Ann. 272; State vs. Judge, 33 Ann. 1293; Succession Pinaud, Mann, Un. C., 37; Nugent vs. Stark, 34 Ann. 628; Board vs. Perché, 36 Ann. 160; State ex rel. Segura vs. Judge, 37 Ann. 253.

It is, therefore, ordered and decreed that the writ of prohibition issue and be made perpetual.


author: Manning. J.

text:
    9687.
    James C. Johnson vs. Kingsland and Ferguson Manufacturing Company.
    When a sale is a mere simulation it may bo disregarded, and be treated as a nullity by a creditor of the seller, but when the sale is real, however fraudulent, the creditor cannot seize l’ the property in the possession of the buyer, but must resort to the revocatory action. And this rule is applicable to the sale of movables as well as immovables.

      APPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.
    . W. G. McDonald, for Plaintiff and Appellant:
    “A sale of partnership property by one of tho commercial partners on the eve of insolvency is null and void, and will he set aside.” 24 Ann. 247,217; Ann.75; 211.38; 25 Ami. 169.
    The recording in Uio mortgage office of an act of sale, containing a vendor’s privilege on a “ sugar mill and machinery,” is sufficient to preserve the vendor’s privilego against third, persons. Tho subsequent incorporation of the machinery into tho mill converts it into an immovable by destination, but the conversion does not prejudice tbs privilege and the samo may he signed and sold separately, as they may he detached and removed without injury to the soil or structure.
    Joseph O. Cailin vs. M. T. Gordy, sheriff, et- alM 32 Ann. 1287; 28 Aim. 749 ; 34 Ami. 925.

      Jack c6 Dismukes, for Defendant and Appellee:
    “ Eveu when it is shown that the expressed consideration of a transfer does not exist, tho contract cannot., on that account, he invalidated if the transferee proves that there was another legal and sufficient consideration." 30 Ann. 966 ; 52 Ann. 94.
    ‘•■When immovable property has been sold by authentic act. valid on its face and accompanied by actual delivery and continuous possession and control by the vendees as owner, the seizing creditor will not he allowed to allege and prove that tho sale isa fraudulent simulation.'’ 33 Ann. 1026.
    ‘•But we think the otdv issue which could have been passed upon in this ease was that of simulation — the only issue which the creditor has a right to make when ho commences with a seizure ” 31 Ann. Mo Adams vs. Soiia, p 865.
    A party who judicially demands to be paid the proceeds of a sale, admits thereby the legality of that sale, ami is estopped fiom impeaching it, 29 Ann. 274; 31 Ann. 100; 23 Ami. 245; 22 Ann, 135; 3l Ami 81.
    'The vendor’s privilege on movables, can only he enforced while tho goods are in possession of the vendor. 20 Ann, 545 .ami 557; C. O. 3227.
    Actual malice need not bo shown, to entitle a party to exemplary damages; if the act was wantonly or recklessly done, it U enough, or if in evident disregard of the rights of ofheis. Bouvier Law D. p 630; 26 Conn. 416 ; 42 Miss. 607.
   The opinion of the Court was delivered by

Manning. J.

The plaintiff enjoins the sale of certain parts of the machinery in the. Pelican Saw-mill which the defendant was provoking-under a fi. fa., issued upon a judgment it obtained against Hardee Brothers and Isaiah and William T. Hardee, the individual members of that firm. They were formerly owners of the mill. The property-seized is alleged to be worth twelve hundred dollars.

In January, 1885,'Johnson bought William Hardee’s interest in bh® whole mill and machinery, and the timber, wagons, teams, etc., but the written deed was not executed until April 2, following. The consideration was expressed to be cash but in fact a part of the price was paid by the conveyance from Johnson to Hardee of a tract of land. He also bought Isaiah’s half of the same property on April 2, and both these deeds were recorded on the 6th of that month, and Johnson, who-had possessed one-half of the property since January, thereafter had possession of the whole.

The property seized is a wheel, carriage, ways, shingle machine, pulleys, several saws, and a long list of such like pieces of machinery. The whole machinery and the mill are alleged to be worth five thousand dollars. Over eighteen thousand dollars are claimed as damages.

The judgment of the defendant against Hardee Brothers was rendered April 11th, a few days after the recording of tlie sale of the mill by them to the plaintiff, and was obtained upon the notes of the firm representing the purchase price of these pieces of machinery. The judgment recognized the vendor’s lien. Execution issued on May 12th against Hardee Brothers and the individuals William and Isaiah,, and these pieces of machinery were seized and advertised to be sold in the following September, and at the same time William Hardee’s land, that he had acquired from the plaintiff in payment of a, part of the price of his half of the mill, was seized to satisfy the defendant’s-judgment.

After the general issue the defendant pleads that the plaintiff’s purchases from the two Hardees were fraudulent simulations made and entered into by all three parties to defeat and defraud it, and it prays that these titles of Johnson to the property be declared fraudulent simulations.

The allegation of the plaintiff is that the sale was real and bona fide, that the titles were of record and he was in possession under them, and the seizure was illegal, tortious, and malicious, and he invokes the, rule that when the sale is real the creditor cannot seize the property in the possession of the purchaser but must resort to the revocatory action.

The application of this rule to the sale of movables was examined with great care in McAdam vs. Soria, 31 Ann. 862, and all the antecedent decisions were reviewed by the court in the opinion read in that case, where it was said, “ the settled jurisprudence is that where the sale is a mere simulation, it may be disregarded and treated as a nullity by the creditor of the seller. But where there is a real sale, however fraudulent, the creditor cannot seize the property in the possession of the purchaser but must resort to the revocatory action.” And that opinion goes on to say the rule was applied to movables in a series of decisions beginning with Peet vs. Morgan, 6 Mart. N. S. 139, down to Bass vs. Messick, 30 Ann. 373, and citing them. It is too well established to be controverted now. Indeed, this inain ground of the injunction is not discussed or alluded to in the defendant’s brief but is passed sub silentio.

The proof shows incontestably that the sale was real whatever may have been the motive of the parties. Johnson testifying sa.ys the, mill cost him altogether nearly nine thousand dollars. He assumed a large number of the obligations of Hardee Brothers as part of the price and paid Isaiah one thousand dollars and William three hundred cash. Isaiah Hardee says Johnson bought his brother’s half interest in the property in January, 1885, and was his partner from that time, and that he sold to Johnson because he had not money to run the mill and Johnson had not furnished the money he had promised. He estimates the mill as worth twelve thousand dollars at the time of sale and says Johnson assumed the payment of all the debts of which there were a large number. But the Hardees made a list of their debts at the time of the sale for Johnson’s information which he was to assume and did assume, and this debt to’the defendant was not on it. Johnson gave his notes to the several creditors whose claims he had assumed to pay and he gave none to'the defendant. The Hardees had given the defendant a mortgage upon some property in Texas to secure its claim and seem to have considered that that property was sufficient to pay it. Johnson knew of the defendant’s claim afterwards certainly for he knew of the suit against Hardee Brothers and advised them to confess judgment and they did it. But there was no assumption of this claim by him, nor is there any allegation by the defendant that he had assumed it. The issue raised by the pleadings is simulation vel non, and the proof establishes that the sale was not simulated, and the injunction was therefore rightly issued and must be sustained. .

The jdaintiff is entited to damages but the record does not enable us to estimate them satisfactorily. His own testimony is not sufficiently specific. For instance he says : “ I cannot say exactly what amount T have, been damaged by this seizure on account of loss of credit, but estimate it at $32,000 or $14,000.” There must be an exhibit more in detail of the damages suffered before we can reasonably be expected to assess them, and we shall therefore give, both parties an opportunity to address themselves with more particularity to the question of the amount of damages that should be awarded. Therefore

It is ordered and decreed that the verdict of the jury is set aside and the judgment thereon is avoided and reversed, and that the injunction of the plaintiff is perpetuated, reserving to the plaintiff the right to institute a suit for the damages sustained and reserving to the defendant the right to institute a revocatory action to annuli the sale. It is further decreed that the, plaintiff recover of the defendant his costs in tooth courts.


author: Ficnner, J.

text:
    No. 9671.
    L. L. Levy (J. T. Rossel, Subrogee) vs. Mrs. M. M. Ada Lane et al.
    Article 3304 0. C., making valid a mortgage granted on the property of another wlien tlio mortgagor subsequently acquires the ownership, requires three elements to give it. application, viz:
    3. “A person contracting an obligation towards another,” i. ebecoming his debtor;

    2. That such debtor should have granted a mortgage on property of which ho was not tin» owner;
    3. That bitch debtor should “ subsequently acquire the ownership of the pvopm-t.y.”
    It has no application when the person who subsequently acquired the property had granted a morlgago as agent, and in the name of the then owner-, without any personal guarantee, and with full exhibition of his powers embodied in authentic act of procuration referred to in the act of mortgage.
    Although it was judicially determined that the procuration did not authorize the morlgago and that, therefore, it was not. binding on the principal, yet, under the express terms of the Code the mandatary, having exhibited the power of attorney under which he. acted, incurred no responsibility. 0. 0. arts. 3C12 and 3013.
    Hence, nob having contracted a debt uy virtue of the act. his subsequent acquisition of tlio property did not validate the mortgage.
    The rights of the commissioners heroin being ba^od exclusively on the hank’s claim of mortgage, and that thus falling to tlie ground, they have no rights or interest to set up the alleged nullities of the j udioial sale attacked.
    APPEAL from tlie Twelfth District Court, Parish of Grant. Over Ion, J.

      Jas. G. White, Jos. P. Ilornor and F. W. Baker, for the Appellant.

      J. O. Wiekliffe and G. A. Wiekliffe for the Appellees.
   The opinion of the Court, was delivered by

Ficnner, J.

This controversy involves the validity of the same judicial sale which was before us in the case of Lane and Husband vs. Cameron & McNeely, 36 Ann. 773.

The nullity was there asserted by Mrs. Lane, who was defendant in the hypothecary action under the judgment in which the sale was made. The principal grounds were these, viz:

1st. That it was a sale of a litigious right to one who was an oflicer of tlie court, and null under Art. 2447 C, C.

2d. That tlie adjudication was null because the bid did not exceed the amount of a certain prior special Mortgage alleged to exist, on the property in favor of the Mechanics and Traders’ Bank.

By reference to the opinion, it will lie seen that we rejected Mrs. Lane’s demand on grounds which did not conclude the bunk, which was not a party to that suit.

The same nullities are. now urged by Laeombe and others, commis•.sioners of the bank, which has been placed in judicial liquidation.

A multitude of questions are discussed with great learning and ability by counsel on either side, of which we find it neeessaty to consider only one.

The foundation of all the bank’s rights in the premises, is the claim that the bank is a mortgage creditor of W. S. Calhoun by special mortgage prior in rank to that of the seizing creditor.

No mortgage consented by W. S. Calhoun in his own right in favor-of the bank is extant. No mortgage in favor of the bank against him appears recorded in his name.

The certificate of mortgages furnished by tlie recorder and read at the sale contained no mention of any mortgage m favor of the bank.

While, such omission cannot prejudice the rights of a duly registered mortgage-creditor, and while the duty of the sheriff in making the sale to require a bid exceeding the amount of duly recorded prior special mortgages is not, perhaps, affected by defenses which may exist against them, yet when the question is whether any such special mortgage existed or ivas recorded, and whether its omission from the certificate was proper and legal, wo are bound to determine such questions before deciding that tlie adjudication was unlawful in disregarding such alleged mortgages.

The bank’s judicial allegations are, substantially: that in 1870, W. S. Calhoun, acting as agent of his mother by virtue of an authentic procuration, executed a special mortgage in her name upon the property now in controversy then belonging to her, which was duly recorded and has been reinscribed, to secure certain notes made by Mary S. Calhoun through her said agent, which are now held by the bank; that subsequently it was judicially determined that the said notes and mortgages were null and void so far as Mary S. Calhoun was concerned, because in executing them her said agent acted in bad faith and exceeded his authority under the procuration; that, by reason thereof, said WS. Calhoun became personally liable for said notes; that, since that time, he became the owner of the property mortgaged, and that, under Art. 3304 of the Civil Code, the mortgage thereby became valid and attached to the property.

If th ■ Article 3304 does not apply to such a case as that here presented, obviously the mortgage, which was confessedly null and inoperative against the property originally, never became valid or attached thereto, did not exist, was properly omitted from the certificate, and had no title to be considered in the adjudication.

The article is in the following words: “If a, person contracting an obligation towards another grants a mortgage on property of which he is-not then the owner, this mortgage shall bo valid if the debtor should ever after acquire the ownership of the property by whatever right!”

An analysis of the article shows conclusively that three elements are essential to give rise to its application in any case, viz:

1st. “A person contracting an obligation towards another,” i, <?., becoming tiie latter’s debtor;

2d. That such debtor should have granted a mortgage oil property of which he was not then the owner;

3d. That, such debtor should subsequently “acquire the ownership of the property.”

Now, did W. S. Calhoun, in executing the notes and mortgage in the name, and as agent of his mother, contract any obligation towards, or become the debtor of, Nevins, the original mortgagee and author of the bank1? Tf not, clearly his subsequent acquisition of the property did not give validity to the mortgage.

The question is conclusively solved by the following articles of the Code:

“Art. 3010. The, attorney cannot go beyond the limits of his procuration. Whatever ho does exceeding his power is null and void with regard to the principal, uuless ratified by the latter, and the attorney is alone bound by it in bis individual capacity.

“Art. 3012. The mandatary, who has communicated bis authority to a person with whom he contracts in that capacity, is not censurable, to the latter for anything done beyond it, uuless lie lias entered into a personal guarantee.

“Art. 3018. The mandatary is responsible to those with whom he, contracts, only when he has bound himself personally, or when he has exceeded his authority without having exhibited his powers.”

Applying these principles to the facts of the instant case, we find that W. S. Calhoun acted exclusively as mandatary of his mother; that ho entered iuto no personal guarantee or obligation; and that he exhibited his powers, which were embodied in an authentic act of procuration expressly referred to in the act of mortgage itself.

Hence, it is plain that, however he may have exceeded his authority, .and however ineffective may have been the obligations created by him •against his principal, W. S. Calhoun did not, by virtue of the act of mortgage, “contract any obligation towards” Nevins or become the hitter’s “ debtor,” and, therefore, was not within the operation of Art. 3804.

If, by reason of misappropriation of funds loaned to bis own use, he incurred any equitable obligation of reimbursement, such obligation would arise, not from the contract, but- from subsequent acts, and would have no relation to the mortgage.

Although this solution seems sufficiently clear on the face of the Code, yet, considering the importance of the question, we have extended our investigations in every direction where we could look for additional light.

At the date of the preparation of the Code of 1825, its compilers had the advantage of the experience of France for twenty years under the Code Napoleou, during which many controversies had arisen as to its meaning and construction in the courts and amongst commentators.

The Article 3304 was not contained in the Code Napoleon, and. in its absence, there had been much difference of opinion as to whether the principle therein stated, which was derived from the Roman law and also existed in the ancient French law, was still applicable under the new system.

To avoid such controversy, the compilers of our Code inserted Art. 3304.

We liave studied the commentaries of Merlin, Troplong, Duranton, Pont, and Aubry & Rau, on Art. 2129 of the French Code, under which the question arises, and have followed their references to the Roman and ancient French law, and we can find no authority or reason for extending the principle to such a caso as this.

For tiie most elaborate discussion of the question, sec, on one side, Troplong Pr. and Hy. vol. 1, p. 326, et seq.; on the other, Pont, vol. 2, p. 625, et seq.

The obvious application of Art. 3304 is to cases where a person has executed a mortgage for his own debt on property which he fraudulently or erroneously pretends to own. It might possibly he extended to the case of a mandatary who, without exhibiting bis powers, lias fraudulently assumed to have and to exorcise authority' which his prin • ■cipal has never delegated to him, and where his personal liability would thus directly result from the contract; but we can find no authority in the letter or spirit of 1lie article itself, or elsewhere, justifying its extension to a mandatary, acting exclusively as such, under written procuration exhibited to tiie other contracting party, and who, therefore, incurred no personal obligation flowing from the contract.

This, we consider, disposes of the case in all its aspects, and dispenses us from the necessity of considering the other questions.

The bank, basing its rights entirely upon its alleged mortgage, and being found to have no mortgage, is without right or interest to invoke the cause of nullity alleged.

Judgment affirmed.

Manning, J., is recused, having at one time been of counsel for the bank in reference to this mortgage.


author: Poché, J.

text:
    No. 9637.
    Jean Tessier vs. Pamela Bourgeois — On Rule Against Purchaser.
    The purchaser of immovable x>ropei*ty of an insolvent, succession sold under executory process cannot, retain the balance of the purchase price after satisfying the claim of the seizing and ranking mortgage creditor, unless there are sx>ecial mortgages of inferior rank existing against the propoity, or unless lie is threatened with eviction by the holders of general mortgages affecting the property. The right to retain said balance cannot be exercised even if there are special mortgages when it appears that the holders of the vS-une have asked to he paid out of the proceeds of the sale, and when similar proceedings have been resorted to by all the mortgage creditors, who have thus all transferred their lights from the thing to the proceeds.
    In such a condition of things the funds must be turned over to the administrator of the succession.
    APPEAL from the Twenty-second District Court, Parish of St. James. Dnffel, J.

      James Legendre and St. M. JBérault, for Plaintiff and Appellee.

      Sims & Foche, for Defendant and Appellant:
    1st. A purchaser of succession property, sold under executory process, has t.be right to-retain in his hands the surplus of the price of adjudication, after paying the amount of the seizing creditor’s writ, to be apx>lied directly by him to the payment of anterior, concurrent or subsequent mortgage and })rivilege creditors. Code of Practice, Art. 707; Morris vs. Cain’s Executors. 34 Ann. 657 : 2B.214; 5Ann.313; 27 Ann.60; 31 Ann. 86 ; 18 Ann. 65.
    2d. In such a case the administrator of the succession is without right to demand from the imrehaser the payment of the surplus in order to distribute samoin course of administration. 30 Ann.323; 34 Ann. 657; C. P. 707; 16 La. 170 ; 5 Ann. 306; 24 Ann. 381 ; 32 Ann. 325.
    3d. Payment to the sheriff or the administrator would not protect the purchaser, or abridge or affect the light of mortgage or privilege creditors to enforce their hypothecary rights against the property purchased by him. 34 Ann. 663 ; 2 R. 214 ; 31 Ann. 86 ; 16 La. 170; 5 Ann. 313; 18 Ann. 641-65.
    4th. The mortgages recorded against the xn-openy adjudicated to the purchaser can be erased only with the consent of the mortgagees, or by a final judgment rendered contra ■- diofcorily with all parties in interest. 8 B. 97, 130; 8 Ann. 58: 21 Ann. 401; 2 Ann. 606; 29 Ann. 848; 34 Ann. 665; 2 La. 489; 11 B. 171; 6B.299.
   Tne opinion of the Court was. delivered b.y

Poché, J.

This rule is taken by R. Beltran, administrator of the snceession of J. Aristide Bourgeois, to compel the purchaser of the immovable property of the succession, at a sale made under executory process at the instance of plaintiff, Jean Tessier, to turn over to the administrator the balance of the purchase price after satisfying in full the seizing creditor’s mortgage m principal, interests and costs.

The. mortgage thus foreclosed had been granted by J. A. Bourgeois three years before his death, which occurred in November, 3884, and executory process was issued in December, 1884, against tbe defendant, Pamela Bourgeois, individually and as tutrix of her minor children,, issue of her marriage with the deceased J. A. Bourgeois.

The amount of the purchase price was $5,700, and the cash balance remaining in the bands of the purchaser is $2,869.05, which he claims-the right of holding- in order to apply the same to the payment of mortgages existing on the property subsequent to t-liat of tlie suing creditor, in accordance with the provisions of Article 707 of tbe Code of Practice.

Before the rule was taken, three of tbe creditors of tlie succession-had filed third oppositions on tlieir respective claims urging a right of' preference on said proceeds ; one, the defendant herein, setting forth a legal mortgage for tbe restitution of her paraphernal funds, and the others claiming privileges as unpaid artisans and laborers.

Resisting the rule, the- purchaser filed several exceptions which were overruled, and in his answer he took the position that he could not legally be compelled to part with the proceeds of the sale remaining- in his hands until the adverse claims of the third opponents, mortgage and privilege creditors on the property which he had purchased and which was the only immovable property of the succession, liad been judicially determined, and bis property tlms unburdened. He lias taken this appeal from a judgment making the rule absolute.

We understand that the exceptions urged by tbe defendant in rule was abandoned on appeal excepting the objection that third opponents-should have been made parties to the rule.

As tbe administrator of the succession is the special representative of all its creditors, it follows that the judgment rendered in the rule will he res adjuclioata as to all of them. As the only object to be sub-served by making tliese third opponents parties to the rule, is tlms accomplished, the objection loses all force, and the exception is thus disposed of.

On the merits, the pivotal question hinges upon the nature of the mortgages which the purchaser sets up as the encumbrances of which he desires to relieve Ms property with the balance of his purchase-price so as to be quieted in bis title.

As shown by the third oppositions on file and not yet decided, these mortgages are general and not special mortgages, in the enforcement-of winch the creditors holding the same could not have proceeded by executory process. But the mortgages which are contemplated l>y the Article 707 of the Code, the fundamental authority invoked by the purchaser, are special mortgages existing on the property.”

And in order to leave 310 doubt as to the legislative intent on the subject, the compilers of the (.'ode have framed Article 710, which reads as follows :

If there exist a general mortgage on the property resulting either from a legal or judicial mortgage, the purchaser cannot avail himself ■of this mortgage, although it bo duly recorded, to retain part of the price for the purpose of paying it, or to refuse paying the price, if that has not been already done, unless there lias been a suit commenced against him, in virtue of the general mortgage, to make him quit the property, or unless he has just reason to fear that such a step will be taken, in which case he may retain the price, unless the suing ■creditor shall relieve him from this disturbance, or give him proper security against it.”

The two articles being construed together, lead to the conclusion that the purchaser’s fears in the present case are ill-founded. We find nothing in the record to justify the slightest fear on the part of this purchaser of any hostile action by the holders of the general mortgages and privileges recorded against the property, calculated to disquiet him in his unencumbered title. On the contrary, the record discloses that those creditors are claiming payment by preference out of the very proceeds of his purchase, and that they are therefore thus judicially estopped frosn any future attempt to enforce their mortgage claims against the property.

The same estoppel would apply to the holder of the only special mortgage heretofore existing on the property, inferior iir rank to that ■of the seizing creditor. That mortgage is held by the administrator who specially sets it up in his rule, and claims pajment thereof out of the proceeds of the sale, as the next mortgage in rank after that of the seizing creditor, and hence he would likewise be forever estopped from claiming any mortgage rights against the property.

The record thus shows a concursus among all the creditors who could possibly urge any mortgage claim against the property purchased by the defendant in rule, who have all transferred their respective and adverse rights frosn the thing to the proceeds of the sale.

What harm can therefore befall this purchaser by paying over the price of his purchase ? Under the state of the pleadings he can easily obtain an order directing that all pre-existing mortgages affecting the immovable which be has bought be cancelled and erased. What can he ask beyond that protection”?

Those are the very rights which the law intends to secure him, by allowing him to retain the balance in his hands after paying the seizing creditor. The reason of the law having ceased, its apx>lication can no longer bo invoked.

We have carefully examined and given due consideration to the numerous authorities, all decisions of the court, which the x>urchaser’s counsel quote in supiport of his claim.

They each and all refer to eases in which the xmrclüiser luid to meet and deal with special mortgages, either anterior, concurrent or subsequent, and in which his title could have, been .jeopardized by those, encumbrances in case he had unguardedly paid the. whole of his x>urchase, price, either to the sheriff or to the succession rex>resentative Hence these authorities fail to bear him out in his contention. Pepper vs. Dunlap, 16 La. 170; Bank vs. Peters, 2 Rob. 214; Scott vs. Featherston, 5 Ann. 313; Quertier vs. Hill, 18 Ann. 65; Johnson vs. Duncan, 24 Ann. 381; Bank vs. Smith et al., 27 Ann. 60; Gally vs. Dowling, 30 Ann. 323; Bucos vs. Hernandez, 31 Ann. 86.

We, note the, great and very confident reliance which his counsel place in the case of Morris vs. Cain’s Executors, 34 Ann. 657, which they hold up as absolutely sustaining their x>osition in this case.

But it apipears from that decision that the mortgages which the xmrchaser had to x>rovide for were, special mortgages, created by the same act whence the, mortgage of the. seizing creditor had emanated although of inferior rank.

It was in view of that condition of things, and with reference to the special mortgages tlien under discussion, that wo used the following language, which is quoted by appellant as decisive, of the issue which now concerns us: “The, case would be different if, after the payment •of the seizing creditor and retaining an amount sufficient to pay anterior, concurrent and subsequent mortgage and privilege creditors, there remained a balance of the price of adjudication; but it would be only •to such balance that the executors could raise their claim.”

The balance now in the hands of the purchaser in this case is pro. cisely in the condition of the, balance as described in that quotation.

It is now before tlie Court for distribution as in, concurso; the proper place for its distribution is in the administration of the succession to ■which the fund belongs of light, and the administrator is the proper •custodian thereof, for payment in due course of administration. Such were the conclusions of the district judge; they are supported by good law, and they have our sauctiou.

Judgment affirmed.


author: Manning, J.

text:
    No. 9670.
    Succession of W. H. Treadwell.
    Tlie ruJe has long been settled that all parties to the record who are interested in maintaining tlie judgment must be made parties to tbe appeal from it.
    Where the tableau of distribution and final account of an administratrix have been homologated and the funds have been distributed in accordance therewith, and a creditor of the deceased, who was not a party to the mortuary proceedings, appeals from the judgment of homologation, he must make the creditors who have been paid parties to bis appeal.
    When the petition of appeal contains no x^rayer for citation and none is issued, the fault is the appellant’s and dismissal is the penalty of his neglect. The Act of 1839, now Sec. 30 Rev. Stats., does not cure this defect.
    APPEAL from tlie Tenth District, Court, Parish of Red River. Hall, J.

      Pierson á Hull for the Appellant.

      JEgan ó Pierson, contra.

   Tlie opinion of the Court was delivered by

Manning, J.

This appeal is taken by petition of a ci editor of the succession from the judgment homologating the distribution of its assets, the creditor not having been a party to the proceedings in the-lower court.

Treadwell died in March, 1885, and his widow qualified as administratrix on tlie 15th of tlie next month. A statement or tableau of debts was made and filed the following day along with a petition for the sale of the property, it appearing that the debts exceeded the appraised value of the property. Tlie sale was made. The plantation, which was appraised at $10,000, brought $12,000. The rest of the property, appraised at a fraction under two thousand dollars, brought the full appraisement. A tableau of distribution was filed, advertised and homologated, no opposition having been made thereto, and the funds were distributed.

In December following, S.W. Rawlins, alleging that lie is a creditor of the deceased, petitioned for a devolutive appeal, which was granted. The administratrix has alone been cited, and slie moves to dismiss on the ground that tlie creditors wlio have been paid have not been made parties to the appeal.

The motion must prevail.

The rule is and has long beeu settled, that all parties to the record who are interested in maintaining the judgment must be made parties to the appeal from it, and this rule has been often applied to appeals such as this, it having been uniformly held that in an appeal from a judgment homologating mi administrator’s final account the creditors who have been paid arc. necessary parties. Suc. Duco, Manning’s Unrep. Cas. 229; Condon vs. Samory, 12 Ann. 801, and authorities there cited; Broussard vs. Robin, 13 Ann. 560; Cummings vs. Erwin, 14 Ann. 315.

The appellant cannot invoke the rule that when the fault is not his ho cannot suffer for another’s neglect or omission, for here the, fault is liis. He did not ask Unit citation should issue.' His petition for appeal ■concludes with this prayer: “Wherefore, premises considered, petitioner prays for an order of devolutive appeal, returnable to the Supreme Court on the second Monday of February, 1886, according to law. He prays for all orders necessary and general relief.”

There is no prayer for citation of anyone, nor was any ordered, the judge having simply granted the, appeal and prescribed the amount of the bond. The prayer for all necessary orders does not include it.

This omission is not cured by the Act of 1839, now Sec. 36 Rev. Stats., a series of decisions having settled that this statute is not applicable to so vital a prayer as that for citation when the appeal is by petition, and that when that prayer is not made the lack of it is attributable to the appellant. Fagan vs. Moriarty, Manning’s Unrep. Gas. 439; Adams vs. Dermody, 21 Ann. 238; Guilbeau vs. Cormier, Idem, 629; Gerodias vs. Handy, 31 Ann. 334.

The appellant complains that “a summary process of administration was adopted.” Creditors of successions have rarely had occasion to ■ complain of the speedy settlement of them. The evil lies in the opposite direction, but in this ease the final account was filed May 29th. •Only ten days advertisement of it was required, but it was not homologated until July J8th, nearly two months interval.

The appeal is dismissed.


text:
    No. 9667.
    W. B. Cook, Tax Collector, and Police Jury of St. Tammany vs. Theodore Dendinger.
    Parishes aro vested with the power to tax persons and property in incorporated towns, unless such power is withdrawn by legislative authority,
    legislative act has deprived the parish of St. Tammany of the power to levy such taxation iu the town of iladisonville.
    ‘The Act 110 of 1880, conferring upon incorporated towns the power of amending their charters, only conferred on them the power to legulate their internal organization and the modes and agencies by which the powers and privileges conleu-ed upon them bylaw might he exorcised. It. did not. nulli6mo,tlH>m. hy such amendments, to extend their powers and privileges or to alter or dot-troy the existing authoiit.v of tho State or parish over their inhabitants.
    Hence, the provisions of lire aim nded charier of iladisoi.vilJc adopted under that act, pro bibiting the imposition of a parish tax or* license, is ultra viren, null and void.
    APPEAL from tlie Justice Court. First Ward, St. Tammany. Duporte, J.

      White & Saunders and John Wadsworth for Plaintiffs and Appellants.

      Thos. G. W. mis for Defendant and Appellee.
   Tlie. opinion of tlie Court was delivered by

Fenner, J.

The sole question involved in this case is the legality of a license tax imposed hy the police jury of the parish of St. Tammany upon the business defendant, who is an inhabitant of the town of Madisonville, conducting his said business within said limits.

It is not disputed that, under the general law of the State, the police juries of parishes are vested with power to tax property and persons within the limits of incorporated towns, unless such power be withheld or withdrawn by express legislative provision. Benefield vs. Hines, 13 Ann. 420; Maurin vs. Smith, 25 Ann. 445; Iberia vs. Chiapella, 30 Ann. 1143.

It is admitted that the legislative charter of the town "of Madison-ville, (Acts of 1852, p. 22(5) conferred no exemption of its people or prop' erty from parochial taxation, and that no other legislative act embodying such exemption has ever been passed.

But in 1880, the Legislature passed Act No. 110 of that year, entitled “An Act prescribing' the manner of altering, changing or amending the charters of cities and towns in the State of Louisiana (the city of New Orleans excepted;,” which delegated to the people of such towns and cities the power of altering and amending their charters, by a vote thereon taken at special ejections held in accordance, with regulations prescribed in the act.

Availing themselves of the provisions of this act, the people of the town of Madisonville adopted, in 1883, an amended charter, the. only feature whereof with which we are presently concerned is Section 8, declaring: “That the power of the police jury shall cease, so far as respects woods, roads and highways in said town of Madisonville, and the imposition of a parish tax or license is hereby especially prohibited.^

This section furnishes the sole foundation for the defendant’s contention that the. parish license herein claimed is illegal.

Plaintiff opposes this contention on the, double grounds:

1st. That Act 110 of 1880 is unconstitutional;

2d. That, even if constitutional, it does not confer upon towns the power of assuming new and additional privileges, or of taking away from parishes powers hitherto possessed by them, but only to regulate their methods of internal government and the modes in which the privilege conferred upon them shall be exercised.

The case is so clearly with the plaintiff' on the second ground that wc have no occasion to consider the first.

Tlie towns of the State would, indeed, he “chartered libertines,” if, by amending their own charters, they could confer upon themselves indefinite privileges and immunities, and repeal and annul the general laws of tlie State so far as applicable to them.

The proposition is equally inconsistent with any reasonable construction of the Act. of 1880, and with the fundamental principles of the law of corporations.

The. act evidently deals with towns as already constituted, with powers and privileges defined and fixed by law, and gives them the power, by appropriate amendments, to regulate their internal organization and the modes and agencies by which these powers may be exercised. It contains no reference whatever to the relations between their inhabitants and the State or parishes, and confers no power express or implied to alter or destroy these relations. The authority to abrogate an existing power of parochial taxation would he so extraordinary a function to confer upon a town that it could he deduced from nothing less than the most express and unambiguous provision of the law. Yet this is what the town of Madisonville claims to have done and to have had the right to do. The powers of municipal corporations can only be derived from direct legislative authority, and are closely limited to the express words of the grant and to necessary implications therefrom, and all reasonable doubts concerning the existence of power are to be resolved against it. Dillon Mud. Corp. § 55, et passim. These principles are of transcendent importance, and it is not to be supposed that the Legislature intended to abrogate them by a sweeping grant of authority to towns to assume whatever powers they please.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from he annulled, avoided and reversed; and it is now ordered, adjudged and decreed that plaintiff' have judgment against defendant, Dendinger, for the license taxes claimed, viz: the sum of twenty-dollars, with interest according to law and costs m both courts.


author: Roché, J.

text:
    No. 9638.
    The State ex rel. J. M. Levet vs. Antoinette and Charles Lapeyrollerie and the Sheriff of the Parish of St. John the Baptist.
    A writ of prohibition will not issue to arrest, the execution of a judgment of one of the courts of appeals, on the complaint of the party cast, on the ground of want of ju'isdiction, unless it appears from the record that the court was absolutely without jurisdiction in the premises.
    In an action of boundary between the owners of two contiguous estates, the tost of jurisdiction is not in the value.of either oi both of the adjacent estates, hut in the value ol' the strip of land included between the two contested lines; and if it appears that the value of such strip of land is in the sum of three hundred dollars, the jurisdiction of the cause ■on appeal is in the court of ispeáis, and not in the Supremo Court. The < ase of Lombard vs. Belanger, 35 Ann. 311, affirmed.
    A PPLTCATION for Prohibition.

      James Legendre for the Relator.

      G. Leche, L. DeVoorter and James I). Augustin for the Respondents:
    1. In an action of boundary, the only matter in dispute is the value of the lands included between the two contested lines, and unless relator shows the value of such strip exceeds two thousand dollars, the Supreme Court is without jurisdiction. 35 Ann. 311.
    2. In this caso the action partakes of the nature of an action of boundary (only in this sense) that the reports of the parish surveyor chosen by both parties to draw the hound - ary line is sought simply to be approved and homologated — both by the allegations and prayer of respondent’s petition.
    And therefore the only matter in contest would be the surplus land beyond tbo titles of the parties apportioned according to law by their chosen surveyor in proportion to the respective titles of the parties
    The affidavit of respondents that said disputed strip is worth three hundred dollars, taken in connection with the report and testimony of the surveyor, settled the question of jurisdiction. O. 0. 832, 833, 851 ¡ B. S. 3740, 3743, 3745. See Exhibits A and B, annexed to the return of respondents.
    3. A party cannot shift his position to a contradictory one, so as to defeat the action of the law. Louque’s 1)., p. 225, § Cl, and p. 226, § 84.
    4. After the consent survey, the sole object of the action of respondents against relator was to prevent a disturbance to their possession of the strip of land allotted to them proportionately by the surveyor, and that possession is alleged to bo worth three hundred dollars; therefore the appellate jurisdiction was legalLy exercised in the premises. K either the title, ownership or possession of the properties owned by the litigants were in question, and tho issue was simply which line should bo decreed to be the true one and to ■ whom the twenty-foot strip belonged to: therefore it is the ownership and possession of the latter which determined the appellate jurisdiction of the Circuit Court. Lombard vs. Belanger, 35 Ann, 311; see also Manning’s TTnreported Cases of Supreme Court, Ternoir vs. Weaver, p. 107.
    5. Where it appears from the record that the lower court had jurisdiction, and the proceedings were regular, a writ ol prohibition will not issue from the Supreme Court on an application based on the ground that the lower court had usurped jurisdiction and authority, etc. 34 Aim. 782 ; 33 Aun. 257, 1356, and authorities there quoted; 36 Ann. 768; 32 Ann. 555, State ex rel. vs. Falls.
    €. Relator is now estopped from seeking relief by writ of prohibition, because he submitted 1o the jurisdiction of the appellate tribunal by pleading all his defenses to said appeal. He should have desisted at first and applied for the remedy he now seeks. He took the chances of a judgment in his favor, and lie now (omplains because hs has been disappointed. State ex rel. vs. Judge, 36 Ann. 768.
   Tile opinion of tlie Court was delivered by

Roché, J.

The facts are as follows :

At a, sale for partition of a tract of land hitherto owned in indivisión by relator an dtho father of the respondents Lapeyiollerie, the parties hereto purchased two contiguous parcels of the land thus partitioned. With a view to establish proper boundaries between their respective estates they employed a competent surveyor, who found an excess of land beyond the quantity called for by their respective titles. That excess, which was a strip of land twenty feet in width, was awarded by the surveyor to the contiguous owners in proportion to their respective quantity of land as shown by their titles.

On the refusal of the relator, Livet, to accept tlie surveyor’s plan, suit was brought against him for the purpose of obtaining a judicial enforcement of the boundaries as settled by tlie surveyor. The trial in tlie District Court resulted in a judgment against plaintiffs, who thereupon took an appeal to the Court of Appeals.

In that court the relator herein, who was the appellee there, moved for a dismissal of the appeal on the ground that the jurisdiction of the cause belonged to the Supreme Court. His motion was overruled and the judgment appealed from was reversed.

In due .course execution was issued on tlie judgment of the Court of Appeals. Hence this application for a writ of prohibition, under the provisions of Article 853 of tlie Code of Practice. Tlie question of jurisdiction depends upon the determination of the precise matter in dispute between the parties to the original suit.

The counsel of both parties are ill accord that the action was one of boundary, and the record shows that tlie strip of land which the plaintiffs claimed under the surveyor’s report, and which tlie defendant refused to yield, was of the value of three hundred dollars. Relator’s contention is that the test of jurisdiction is the value of the two contiguous estates, which in this case- is shown to exceed two thousand dollars, and not in the value of tlie narrow stiip of land which may be the bone of contention between the parties; and Ms main reliance is on Articles 824 and 825 of the Civil Code, which assimilates the action of boundary to the action of partition. Hence he argues that, as in the action of partition the value of the whole estate1 is the tost of jurisdiction, so in an action of boundary the value of the two contiguous estates is the criterion of jurisdiction.

Under the two articles referred to, there arc only two features in common between the two actions. They are both derived from the same source; the principle that no one is bound to live in indivisión with another (Art. 824), and neither can be met by the plea of prescription. (Art. 825.) But in all other respects they are essentially and materially different.

The case in hand is a fair illustration of the, correctness of this proposition, and of the fallacy of relator’s contention. Before the partition sale the two estates were held in indivisión between Livet and the Lapeyrolleries. For the purpose of the partition the whole property was under the control of the court, and at the partition sale each estate went to the respective purchasers. When the owners, proceeded to establish their boundaries, which act was a necessary result of the partition, and when they differed as to the proper boundary, and went into court a second time, their respective titles which had been settled by the partition sale, were not before the court for its action, for there was no contest touching them. But the only matter submitted to the court for adjudication was the settlement of the boundary line which was to separate the two contiguous estates, or to determine what proportion of the surplus land discovered by the survey, was to accrue to each of the contiguous estates. Each of the purchasers at the partition sale was then and is yet in possession of all the land which his title calls for, hence the value of either or of both of the contiguous estates has ceased to be a factor in the litigation. Hence it follows that the only matter in dispute before the District Court, and on appeal therefrom, was that portion of the' twenty feet surplus land which the plaintiff claimed, and which is shown not to exceed three hundred dollars in value.

If it be true, as intimated by relator’s counsel, that the suit partook more of the nature of an action of partition than that of boundary, the property to be partitioned would be the strip of land twenty feet in width, and he does not even pretend that its value exceeds the jurisdiction of the Court of Api>eals. Hence that horn of the dilemma does not favor him. But if it be the action of boundary, on which point we entertain no doubt, the test of jurisdiction is in the value of the tract •of land included between the contested boundary lines.

'Fliis question came up in tlie case of Lombard vs. Belanger, 35 Ann. 311, and we there held, as we do now, that “the value of that portion of the adjacent estates wluoli would be involved by selecting either of the. contested lines as the true boundary line between the. two estates is the. real matter in dispute” in the action of boundary.

These considerations lead to the conclusion that the Court of Appeals did not err in maintaining their jurisdiction of the cause, and that therefore there is no ground for the writ of prohibition herein prayed for. It is therefore ordered that the alternative writ of prohibition issued herein be recalled and set aside, and that relator’s application be dismissed at his costs.