author: Manning, O. J.

text:
    No. 7530.
    Augusta A. Buddecke vs. C. T. Buddecke et al.
    Where a sale of property, in which minors are interested, is made under an order of court in order to effect a partition, it is not necessary that the full appraisement of the property should be bid.
    In a suit for the partition of property of which minors, who are absentees, are co-proprietors, each of the minors is properly represented in the suit by a curator ad hoc.

    The court of ordinary jurisdiction, and not the probate court, has jurisdiction of a suit for the partition of property which belongs in part to the major and minor heirs of a deceased wife, and in part to the surviving husband. It is only when the property belongs wholly to a succession, under administration, that the probate court has jurisdiction of a suit for its partition.
    APPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      Henry C. Miller for plaintiff and appellee.

      J. lie Connell and Horace E. Upton for defendants and appellants.
   The opinion of the court was delivered by

Manning, O. J.

The community existing between Christian T. Buddecke and his wife was dissolved in 1876 by the death of the latter. There were eleven children, three oí whom are minors. Mrs. Buddecke left a will, which was probated by the Second District Court of Orleans in March 1877, by which she bequeathed all her interest in the community property to her children, subject to her husband’s right of usufruct, changing the disposition of the law only in this, that she gave the disposable portion to some of the children to the exclusion of others. On April 3,1877, the husband having applied to the court to be put in possession, as usufructuary, of the property, an order or judgment to that effect was made, and he went into possession thereof.

The property was real estate in New Orleans. Its partition was desired. No inventory of it had been taken in the mortuary proceedings of Mrs. Buddecke, and no account filed. There was nothing to file an account of, and therefore none was needed. Augusta, one of the major proprietors, instituted this suit in the Fifth court of Orleans for a partition of the property held in common between' her and the defendants, who are her father and brothers and sisters, and it was ordered. The minors live in Virginia with their father, upon whose affidavit to that effect, curators ad hoc were appointed. A special curator ad hoc was appointed to each of the three minors. An inventory was taken of the property, under order of the Fifth court in this case, under the allegation that none had been taken within a year, and it was appraised at eleven thousand dollars, and sold for eight thousand dollars. John Calder bought it, and refused to comply with his bid. The terms were one fourth cash, and the residue in three equal annual instalments, and had been fixed as to the minors’ shares by a family meeting, and the major owners agreed to the same terms for their shares. A rule was taken on him to shew cause why he should not be compelled to comply with his bid, and he has answered. This answer presents the issues now to be decided.

They are 1. That the Fifth court had no jurisdiction to decree a sale for partition of this property, the same being succession property in which minors are interested ; 2. that the property belongs to the succession of -Mrs. Buddecke to the extent of one undivided half thereof, which succession has been opened in the Second court, and has never been settled and closed ; 3. that the minors have been improperly, and illegally represented therein; 4. there was no legal appraisement; 5. there has been no valid sale, the price bid being less than the appraisement ; 6. Us pendens, in that an action for partition had been instituted in the Second court, and was pending.

The suit in the Second court had been discontinued, and the last plea therefore falls.

Whether the succession of Mrs. Buddecke was closed or not is of no consequence, and therefore we express no opinion about it, for as-turning that it was still open, this suit is not a proceeding in it, nor for its partition, since the succession owned but one half of the property, ■and the partition is sought of the whole of it.

The appraisement was made under order of court in the proceedings for partition, Civil Code, arts. 1247 — 8 new nos. 1324 — 5, and in a licitation made at the instance of co-proprietors of minois the full appraisement of property need not be bid, as the rule touching that requirement in the alienation of minors’ property does not apply. Shaffet v. Jackson, 14 Annual, 154. Civil Code art. 339 new no. 345.

The minors, being absentees, were properly represented by curators ad hoc, and this was expressly declared to be the proper course in actions of partition of successions, M’Cullough v. Minor, 2 Annual, 466, and is the proposition disputed by the respondent. It has been later held, when a mortgage was to be enforced, the mortgagor being dead, •and the exception was made that the heirs, some of whom were minors, had not accepted the succession and the widow had not renounced, a curator ad hoc was rightfully appointed. Randolph v. Chapman, 21 Annual, 486. It is apparent the minor was not an absentee in Malone v. Casey, 25 Annual, 466.

The last five grounds of the objection of the respondent in the.rule are therefore untenable. The first and only remaining objection will be considered by itself.

In Boutté’s case, 30 Annual, 177, we held the Second court was without jurisdiction of that partition suit, because the property to be divided was owned by two separate and distinct successions, each claiming ownership of its part, not by title derived from a common ancestor, but from two different sources. ~Wo are surprised to learn that decision upset opinions of some of the Profession on the matter of jurisdiction, upon which their practice had been based. That decision but followed the old and beaten path. Forty years ago, the same rule was explicitly .■laid down by this court in a case, which has been ‘ reported’ in the legal sense of that word, and from the Reporter’s statement of the facts, and 'the epitome of the points raised on either side, we know its whole history. Henry v. Keays, 12 Louisiana, 214.

The plaintiff’s counsel there raised the identical question that is raised by the respondent here, and cited the same paragraph of the -article of the Code of Practice to support it that is cited here. The defendant’s counsel there opposed the same reasons and the same .authorities upon which the plaintiff in this ease relies. The difference between the eases is that the present is much stronger than that, and if the rule regulating jurisdiction was rightly applied in that case, there Is much greater reason to justify its application in this. The court go ■direct to the mark, and in language, at once perspicuous and succinct, announce without qualification ; — “ The authority of the district court to ordain and regulate a partition of property, held in common by other title than hereditary succession, at the suit of a co-proprietor, can hardly be c¿uestioned at this time. It is the ordinary action cle commune dividendo.” This is said where the case was the brothers and sister claiming partition of the property of a deceased sister, but one of them claimed under a donation, and the court said ; — “Admitting in ordinary cases that, where the thing to be partitioned is one entire succession and the parties hold by the same title as heirs, the authority of the court of Probates is conclusive, yet in the case now before the court, such is not alleged to be the fact. As to the fourth claimed by the plaintiff under the donation, although she is a joint owner with the defendants, she does not claim as heir of the deceased, but in ^virtue of the donation.” Ibid. 219. '

The respondent rests his case upon the Code of Practice, and the decisions of this court cited by him, every one of which we shall review.

Courts of probate have the exclusive power to obtain and regulate all partitions of successions in which minors or absent persons are interested, or even those which are made by authority of law between persons of lawful age and residing in the State, when such persons cannot agree upon the partition and mode of making it. Code Prac. art. 924.

All partitions of succession property shall be made by the court of probate of the place where the succession is opened. Ibid. art. 1022.

The heir, desirous of obtaining a partition, shall present his petition to the judge of probates, praying that his co-heirs may be cited, etc. Ibid. art. 1024.

But what is to be done if it is not a succession that is to be partitioned, nor property belonging to one, an'd where therefore the person to be cited is not a co-heir ? Is Christian Buddeeke heir of his wife ? Has ho any part or lot in her succession? Is the thing to be divided her succession? He owns one half of the thing to be divided — not by inheritance from her or from any one, but by a distinct, separate, and independent title. A partition of a succession is not asked here. If it be, why is Mr. Buddeeke cited ? He owns no part of his wife's succession. He is not a co-heir with his children. What need of making him a party to a suit in which he can have no possible interest ? For if we accept the theory that the thing to be divided is a succession, he is an outsider as to that, and should not be a party to the suit. Now here is the crucial test. If he were not made a party, the proceedings would be defective. Why ? Because he is one of the owners. Being owner in his own right, and not as heir or by other title derived from the succession, is it not incontrovertible that the thing owned is not' a succession ?

But we are told there is another feature in these Articles. Partitions of successions in which minors or absent persons are interested, must be made by the Second court. Most true. But must the Second court make partition of property, in which minors or absent persons are interested, that is not a succession, and does not belong to a succession ? It is apparent above that this property is not a succession. Is it not equally so that it does not belong to a succession ? Mr. Buddecke bought it while Mrs. Buddecke was alive. If he had not, she would never have owned any part of it. He bought it then before any succession was opened — before there was any succession — and he holds by the same title now that he did then. Is not what he owns a part of the thing to be divided ?

What countenance does the respondent’s objections receive from adjudicated cases ? There is not a case since Henry v. Keays that impinges the rule there laid down, much less overrules it. He cites Walker v. Kimbrough, 23 Annual, 637. It cannot be supposed that, in the isolated expression — “the parish court had jurisdiction to partition property of the community” — disconnected as it is, it was meant that the partition of community of all spouses, one being dead, is exclusively within the jurisdiction of the parish court, and unless it means that, it is not in conflict with our ruling. Moreau’s case, 25 Annual, 214, was an action by one heir against his co-heirs to recover his interest in the succession of their mother — the mother of all of them. Held, that he must first provoke a settlement of the succession, and then sue for a partition — very good doctrine, but in what particular applicable here is not apparent. The Buddeckes were not co-heirs — the father had no interest in the mother’s succession. No settlement of that affected or interested him.

The piece de resistance of the respondent’s first of authorities is Malone v. Casey, 25 Annual,466, which the brief informs us “fully maintains the position assumed by appellant.” The plaintiff, claiming to be an heir of Mary Casey deceased, instituted in the parish court an action against her co-heirs for partition of the decedent’s estate. The defendants excepted to the jurisdiction. The court say; — “So far as we can learn from a rather scant record, it would appear that the proceedings in this ease have been irregular. The succession can only be accepted on behalf of the minor with benefit of inventory, and it appears he is without a tutor. The succession is without a representative, and the minor’s interest therein is not ascertained. Under this state of facts, we deem it best to remand the case for further proceedings. It is therefore ordered,” etc. That is all, and nothing more.

The last case cited is Woolfolk’s, 30 Annual, 139 where we held that when the succession no longer existed, the parish or probate court had not jurisdiction of the partition, a doctrine we propose to apply in this case, and which we have recently affirmed in Ereret’s case, not yet reported.

We have thus been at pains to justify a ruling made by us with deliberation, because from the frequency with which the question has of late been presented to us, it, is apparent that our construction of the law runs counter to the opinions of many lawyers of experience and caution. This is the more remarkable, since it is now demonstrated that we adhere to the interpretation of this court, adopted at an early day, and never departed from. It is a characteristic of the legal profession that it still retains that abhorrence of “vain conceits” which Lord Coke was fond of giving expression to, and prefer that their judges shall walk in the safe path, marked out by precedent and hedged on either side by authority; and we felicitate ourselves that, in now putting this phase of the question of jurisdiction at rest, we are guided by the wisdom and follow the instructions of our early predecessors.

It is a characteristic too of legal questions that, chameleon-like,, they change hue and colour as the light falls upon them with differing refractions, and it may not be amiss to note, without discussing, the fact that where the husband dies, who is the head of the community and who has burdened it with obligations, the question of settlement and partition of such a community may present a very different state of facts, which might not be guided by a rule such as is manifestly applicable to the present case.

The judgment of the lower court is affirmed.


source: Caselaw Access Project

author: White, J.

license: Public Domain

text:
    No. 7406.
    Govy Hood vs. Henry Frellsen.
    An insolvent who has made a voluntary surrender, and obtained a discharge under the Bankrupt Law o£ the United States, is estopped from suing to recover, or setting up a title to property, which he alleges was his at the time he surrendered in bankruptcy, but of which he avers he had made a simulated transfer, to prevent it from passing into the hands of his assignee, and thus protect it from the recourse of his creditors. “ ATemo allegara suam iurpitudinem est audiendus.”

    APPEAL from the Thirteenth Judicial District Court, parish of East . Carroll. Hough, J.

      W. G. Wyly, J. M. Kennedy, and Thos. J. Semmes for plaintiff and appellee.

      J. TV. Montgomery and H. G. Morgan for defendant and appellant.
   The opinion of the court was delivered by

White, J.

The arguments, both oral and written, in this cause have taken a wide range, but as we have formed a conclusion from'the face of the papers, as explained by the documentary proof, we are compelled to state the facts and pleadings somewhat at length in order to make our conclusion clear.

In April, 1866, Henry Frellsen sued Govy Hood on seven notes drawn by him to the order of Stevenson & Frellsen, dated at various times between the 15th of October and the 10th of January, 1863, all bearing eight per cent interest from maturity until paid, amounting, in principal, to $39,319 45. Hood confessed judgment, accompanied with stay of execution, which was accordingly rendered for a sum in principal and interest aggregating about sixty thousand dollars. On the 22d of July, 1868, under fieri facias issued in execution of the judgment thus rendered ; and after due proceedings on the 5th of September, 1868, the sheriff adjudicated to Henry Frellsen, the plaintiff in execution, the following mentioned property: A tract known as the “ Home Place,” one known as the “ Black Bayou Place,” and the undivided half of another known as the “Hood & Wilson tract.” Subsequently, under an alias writ, other land was acquired by the plaintiff in execution, the amount of sales being duly credited on both writs. In December, 1868, Hood was adjudicated a voluntary bankrupt, his schedules showing him to be overwhelmingly insolvent, and his statement of assets containing no mention of the property above referred to ; and in fact really no assets of any consequence. On the 27th of January, 1871, Hood was finally discharged. In May, 1871, Henry Frellsen sold to Hood for the sum of $30,155, payable in six equal installments, evidenced by notes bearing eight per cent interest from date, the following property: The Home Place and a divided half of the Hood & Wilson Place, with another tract of land. The land thus conveyed being all land which Frellsen acquired at the execution sales already referred to. In December, 1874, none of the notes for the purchase price having been paid, Frellsen took executory process to enforce the payment of those which had matured. Whereupon the present controversy began by an injunction sued out by Hood on the following grounds, as stated in the petition :

1st. “ Because at the time the aforesaid six promissory notes purport to have been executed, the said Henry Frellsen was indebted to your petitioner in the sum of $13,300, which amount, together with legal interest thereon, ought to have been credited by said Frellsen on the first three of said mortgage notes as they respectively fell due. That said sum was for two notes, each for the sum of $6,650, executed by Geo. G. Wilson to the order of petitioner, and transferred by petitioner to Stevenson & Frellsen, and known as the Hood & Wilson notes.” The petition continues, and says : “ Wherefore, petitioner pleads the said sum in compensation, and set-off of said Frellsen’s claim, and avers that the attempt of said Erellsen to collect the whole of said notes sued on is a gross fraud, * * * it having been thoroughly understood at the time petitioner executed the same, that a sufficient amount or number of them be surrendered and cancelled to cover the aforesaid Hood & Wilson notes.”

2d. “ That for the year 1871 petitioner’s Hood & Wilson Place was rented for the use of Erellsen for the sum of $1200, the lease being in the name of Erellsen, which said sum the said Erellsen agreed also to credit on said notes sued on, * ' * * which sum is now pleaded in compensation.”

3d. That for the year 1868 petitioner’s plantations, known as the Black Bayou and Home plantations, were leased to one John W. Boice, and that the Home Place was also leased to Boice for the years 1869, 1870 and 1871; that all of said rents for the said years, which amounted in whole to the sum of $12,500, were agreed by said Erellsen to be credited on said notes, and said amounts are pleaded in compensation.

4th. That at various times petitioner has sold a large number of town lots amounting to $1200, which sum was also passed to the credit of said Erellsen, and which is pleaded in compensation of the notes sued on.

After charging fraud on the part of Erellsen, the petition concluded with a prayer for an injunction and for its perpetuation, that the notes sued on be cancelled and given up in consequence of their extinction by compensation for judgment for the overplus eight thousand dollars, and for damages.

On the 28th November, 1876, an amended petition was filed, reiterating the allegations of the original petition and praying trial by jury. ■On June 11,1877, another supplemental petition was filed, which, in substance, averred as follows : That the original judgment was a consent judgment, and the sale under it a simulation, intended only to secure Erellsen and not to make Erellsen the owner, but simply to secure Erellsen’s debt, an agreement being contemporaneously formed by which, although the paper title was to be in Erellsen, the real ownership was to remain in the plaintiff; that it was understood that Erellsen was to lease out the property and credit the rents, as well as those then due, as also those to become due in the future; that the George G. Wilson notes were given to Frellsen for collection in 1854, and had never been accounted for, and the amount of which he owes, as stated in the original petition; that at the time of confessing judgment he was in a feeble condition of mind ■and body; was unable to manage successfully his business ; was entirely under the influence of Edward Sparrow, who was the counsel of Erellsen, who deceived and defrauded him in the interest of Erellsen. That at the time of the bankruptcy proceedings, which were gotten up by Edward Sparrow, the agent of Erellsen, petitioner then believed they went in his, petitioner’s, interest, but now he discovers it was all managed and concocted in the interest of Erellsen for the purpose of defeating the other creditors of petitioner, as well as petitioner himself, out of a large amount of money, over and above the amount due on the judgment in favor of Erellsen. That all papers were signed by him without examining them, and because advised by Edward Sparrow that they “were all right.” That at the date of the execution of the sale and notes he was unaware that Erellsen had. not credited him with the proper sums. That he signed the act of sale and notes because Edward Sparrow told him to in ignorance of his rights ; that he now discovers that Erellsen and Sparrow had defrauded him by not accounting to him for the revenues of the property, as stated in the original petition by not accounting for the Wilson notes and other matters, as already averred. The prayer was identical with that of the original petition. Two additional supplemental petitions were afterwards filed, neither of which are of moment to notice, as they in no manner change the issues made by the supplemental petition already referred to. The plaintiff answered by averring that Hood had received all the credits he was entitled to, by a general denial, and by pleading Hood’s bankruptcy as an estoppel. The dissolution of the injunction was prayed for with damages. The lower court perpetuated the injunction, except for a small sum. We think the injunction should have been dissolved and the demand of plaintiff in injunction have been rejected in tuto. What is that demand when reduced to its last analysis but an averment on the part of Hood that at the date of his surrender in bankruptcy he had credits and rights in the hands of Erellsen, which it was agreed between them should be accounted for, not to the assignee, but to Hood, and which were therefore not surrendered, and which, it is complained, were not properly accounted for to Hood after Ms discharge ? In other words, a dishonest bankrupt seeking to compel an account of moneys which he dishonestly concealed. What but an attempt to enforce judicially rights which, if ever existing, were so at the date of the bankruptcy, and therefore either passed to the assignee or- were prevented from not legally but practically passing by the fraud, the false swearing — the crime of Hood himself ? Under such circumstances can the ear of human justice be polluted by a story of it, may be a wrong, but, if so, necessarily a story of violation of both Divine and human law by the sufferer? Certainly not without a departure from that elementary principle expressed in the trite maxim of “ nemo allegans suam turpiiudinem est audiendus,” which has been so often applied by this court. 6 M. 524 ; 9 M. 352 ; 3 R. 818 ; 4 R. 219 ; 2 A. 60 ; 12 R. 79 ; 1 A. 69 ; 12 A. 249.

In fact it would be shocking to every moral sense to admit for a moment that an insolvent debtor could place his property, his credits, his rights, in the hands of a third person, obtain the release from his debts by false swearing at the time of filing his schedules, at the time of his examination, at the time of his discharge ; and then, after discharge, holding up all these oaths, taken and taken again in a solemn, judicial proceeding, invoke the aid of a court of justice, not in undoing the wrong committed, but in making it more successful. It was this view which caused our predecessors to say, in Pardo vs. Pardo, 26 A. 366: “In this ease we see nn legal ground upon which defendant can succeed. He is estopped from denying the truth of his oaths and judicial admissions in the insolvent proceedings.” We are referred to Ware & Sons vs. Morris, 23 A. 665, as inculcating a contrary doctrine. If it did, we should consider it overruled by Pardo vs. Pardo. An examination, however, of the ease of Ware vs. Morris satisfies us that the court did not go to the length claimed. The case was decided by a divided court, two dissenting, the judges who concurred in the decree placing their concurrence on grounds by them stated. True, one of the opinions is as claimed, but we are disposed to think that this view was not concurred in by a majority.- Be this however as it may, if the case conflicted with the principle of nemo allegans, as applied to the matter before us, we could not adhere to it, but should overrule it, under the teachings of the almost father of our jurisprudence, saying : “ They who come into court with unclean hands ought to be told procul es lote profani, the temple of justice of your country is the house of God — it should not be made a den of thieves.”

Nor can we agree with counsel that because none of the creditors of Hood proved their debts in bankruptcy, that a court can hear the story of his infamy with better grace. Would such proof not have been made if the rights, which he now avers were his, had been surrendered? The rule of nemo allegans is the offspring of no individual interest; it is enforced in behalf of society and morality in order that persons may be deterred from committing frauds by placing them beyond the pale of legal relief, in consequence of injury suffered by them in the accomplishment of a bad purpose.

If Hood had the rights which he claims, as to which we express no opinion whatever, the filing of his schedules in bankruptcy without mention of them, has debarred him from enforcing them. If in fraud of the law and of creditors he allowed his assets to remain in the hands of the defendant, we cannot lend the aid of legal machinery to enforce the rendition of a correct account when, without Hood’s fraud, he could ask no account whatever. We will leave him where his own acts have placed him. We will deny him those rights which he has repeatedly, in the most solemn manner, under the obligations of his oath, declared he had not. We cannot hear him invoking the fra-ud of his agent, to annul an authentic act, when we cannot reach the alleged fraud of the claimed agent, without passing over the greater fraud of Hood himself. Because of our passing on the case under the hypothesis that Hood could not be heard to establish hi3 own turpitude, we must not be understood as even indirectly indicating that the record sustains by proof the charges against the defendant in injunction ; into that investigation we have not entered.

The judgment of the lower court is reversed, and proceeding to render such judgment as should have been pronounced by the lower court, it is ordered and adjudged that there be judgment in favor of Henry Frellsen and against Govy Hood, rejecting the demand Of said Hood, and that the injunction sued out by said Hood be dissolved, with one thousand dollars damages as counsel fees against Hood and J. Shelby Irvine, the security in the injunction bond.

Rehearing refused.


author: Spencer, J. Marr, J.

text:
    No. 7192.
    Ferd. M. Goodrich vs. Logan Hunton.
    A discharge in bankruptcy is a good delence, if pleaded and proved before judgment. It is no ground on which to annul a judgment.
    Where a person is sued as a resident of a parish where the suit is brought, and is personally cited, a judgment regularly confirmed on default against him will be res adjudieata, against a plea that he resided elsewhere.
    ^PPEAL from the Fourth District Court, parish of Orleans. Houston,

      Geo. L. Bright for plaintiff and appellant.

      J. Ad. Bozier and Thos. Hunton for defendant and appellee.
   The opinion, of the court was delivered by

Spencer, J.

This case was before us in 1877 on an appeal from an order of removal. Goodrich having died pending that appeal, D. N. Barrow, as his administrator, was made party by order of this court. We reversed the order of removal and remanded the cause for further proceedings and trial on the merits. The trial resulted in a judgment in the court below against plaintiff, who appeals.

Goodrich was a member of the firm of Goodrich & Pilcher of New Orleans. In 1866 Hunton, alleging that the members of said firm were both residents of New Orleans, sued them on a note. Citation was-served on Goodrich in person, in this city. Not answering within the legal delay, a judgment by default was regularly entered against him. This default stood unconfirmed until 1874, when it was, on proof, made final. Pending the suit, Goodrich became a bankrupt, and was discharged.

The present suit is to annul the judgment thus obtained by Hunton, on two grounds, to wit:

First — -That Goodrich had been discharged in bankruptcy.

Second — That he was a resident of Carroll parish, and could not be sued in Orleans.

First — A bankrupt’s discharge is a good defence, if pleaded and proved before judgment. It is no ground to annul a judgment upon.

Second — Goodrich was alleged to be a resident of the parish of Orleans, and was cited personally therein to answer. This he neglected to do, though he had most ample time.

We adhere to the views expressed in Phipps vs. Snodgrass, 31 An. 88. As a consequence, we hold that where a person is sued as a resident of the parish where the suit is brought, and is personally served with citation therein, a judgment regularly confirmed on default against him will be res adjudicata against a plea that he resided elsewhere.

Whether in such case the exception of non-residence, can or cannot be pleaded after default is entered, is a question of no moment here. Tt cannot be pleaded after final judgment. To so hold would put every judgment confirmed on default at the mercy of men’s memories, and subject litigants to unending lawsuits, to establish the validity* of judgments obtained, and final perhaps years before, and upon the faith of which reposes the security of titles of vast amounts of property. We limit ourselves to the case Where the non-resident party is sued as a resident, and is personally cited as such, within the parish. For if the service be domiciliary, as a non-resident could have no domicile in such parish, the judgment would be null for want of citation.

Barrow, as administrator, was made party to the suit in, and by order of, this court. When the case was remanded he continued to be a party and no further order to that effect was necessary.

The judgment is affirmed with costs.

Dissenting Opinion.

Marr, J.

After this cause was remanded to the district court, on the appeal from the order of removal into the circuit court, 29 An. 372, Hunton answered; and he stated in his answer that Goodrich was dead. No other suggestion of the death was made in the district court. Barrow, the administrator, who had been made a party, in this court, to the appeal from the order of removal, was one of the attorneys for Goodrich, in this suit, from its inception. The case proceeded; and final judgment was rendered “in favor of defendant, Logan Hunton, and against plaintiff, Ferdinand M. Goodrich, dissolving and setting aside the injunction,” etc.

Barrow’s first appearance in the district court, in his capacity as administrator, was in the motion for an appeal from the final judgment, and he gave the requisite bond as appellant. To say the least of it, the judgment was irregular; and if it is not a mere nullity, I think it should have been corrected in the court of original jurisdiction. Perhaps, if appellee had joined in the appeal and had asked that the judgment be amended in this respect, this court might have substituted the name of Barrow, the living representative, for that of Goodrich, who was no longer amenable to human tribunals. Until this has been done, in some way, I do not think we can deal with the judgment appealed from as an existing reality.

By our law, suits do not abate by the death of the parties ; but where the plaintiff dies, until bis successor appears and becomes plaintiff in his stead, there is no suit; and no judgment can be rendered. Barrow was a party to the appeal; but the only question in that case was as to the legality of the order of removal; and when the cause was remanded for further proceedings, he should have been made party plaintiff; and the record of the district court should have shown that he was a party to all the proceedings subsequent to the death of Goodrich.

This point was not raised by counsel; but we cannot ignore it: nor ’ can they by act or omission give effect and validity to a judgment against one no longer in being.

If we could consider the case on its merits, I do not think the Fourth District Court of Orleans had jurisdiction of the original suit of Hunton ; and I think the judgment in that suit, in favor of Hunton' against Goodrich, was void for want of jurisdiction.

The proof is plain that Goodrich lived in Carroll parish from 1842 to the time of his death, in 1876, except for ten months, from'November, 1872, to September, 1873, when he lived with his family in a rented house in New Orleans. He was a member of the Bar since 1849 ; and since his marriage, in 1853, he lived with his family, in his own dwelling, at Lake Providence, except for the ten months just mentioned. Before the war, in 1859, he bought a house in New Orleans; but he never occupied it: it was occupied by his father-in-law Pilcher. He was a member of the commercial firm of Pilcher & Goodrich of New Orleans, which virtually ceased to exist, and went out of business during the war ; and in July, 1865, it was announced in the Picayune that that firm had been dissolved in June, 1865; and that it had been succeeded by the firm of Pilcher & Barrow. According to the views expressed by us in Eanlett vs. Collier White Lead Co., 30 An. 58, he was not subject to the jurisdiction of the courts of Orleans, at the time the suit was brought and citation served, in April, 1866.

The general rule is, that one having a domicile in the State must be sued in the court of his domicile. O. P. arts. 89,162. To this rule there are exceptions, none of which are applicable to this case, except that laid down in Code Practice, art. 93: “If one be cited before a judge, whose jurisdiction does not extend to the place of his domicile or of his usual residence, but who is competent to decide the cause brought before him, and he plead to the merit, instead of declining the jurisdiction, the judgment given shall be valid, except the defendant be a minor.”

This language is plain. It is the voluntary act of the defendant, his submission to the jurisdiction, by p’eading to the merit, and it is this alone which gives validity to the judgment of a court which would otherwise be without jurisdiction ratione materia?. As the law-maker has chosen to make this exception, the courts cannot enlarge it, or give to some other act or fact the effect which the law has given to the voluntary appearance of defendant, and his plea to the merit.

It is argued that art. 333, 0. P., attributes to the judgment by default the same effect as that given to the plea to the merit by art. 93. Article 333, as originally adopted, was: “It is a rule which governs, in all cases of exceptions, except in such as relate to the absolute incompetency of the judge before whom the suit is brought, that they must be pleaded specially, in limine litis, before issue joined, otherwise they shall not be admitted.”

Under the dominion of this article, this court held in Magee vs. Dunbar, 10 La., in 1837, that “ there is a class of exceptions which the Code requires to be pleaded in limine litis, before issue joined, which we understand to be an answer to the merits, and that an issue is tacitly joined by a judgment by default; but when that judgment is set aside by filing an answer, it is as if it had never existed.”

The court had just said : “The filing of an answer is a matter of right; and does not depend upon the discretion of the court, nor does the Code appear to us to restrict the defendant in relation to the exceptions which he may plead in such a case.” The case with which the court was dealing was one in which a default had been taken ; and it had been set aside on the appearance of defendant and his filing an answer, the beginning of which was a dilatory exception. The district judge had ordered that part of the answer stricken out, on the ground that issue had been joined by the default; and it was too late to set up a dilatory exception.

It will be observed that by article 336, of the C. P., “ declinatory exceptions may be pleaded in the defendant’s answer, previous to his answering to the merits; but, except as relates to the declinatory exceptions» the defendant must plead in his answer all dilatory or peremptory exceptions,” etc. So that, in the view of the court, at that time, when the default was set aside, the defendant might plead in his answer all such exceptions as he could have pleaded if such default had never been taken, and the legislature was of the same opinion ; for, in 1839, by Act No. 53, section 23, p. 172, it was enacted that, “ Hereafter no dilatory exceptions shall be allowed in any ease, after'a judgment by default has been taken ; and, in every case they must be pleaded in limine litis, nor shall such exceptions hereafter be admitted in an answer in any ease.”

This section, in the words quoted is now the second paragraph of Art. 333; and the first paragraph is the article as adopted originally. The meaning is plain. By the first paragraph no exception, save as to absolute incompetency shall be allowed after issue is actually joined by answer filed. Of course this does not include such peremptory exceptions founded in law,'res acljudicata, prescription, etc., which may be pleaded at any stage of the cause before final judgment. By the second paragraph, no dilatory exception shall be allowed after issue is tacitly joined by default.

It is assumed that the plea of domicile is a dilatory exception, and that it cannot be pleaded after issue joined ; and the argument is, as the default is a tacit joinder of issue, the court which had not jurisdiction, by reason of the domicile, acquires jurisdiction by default, and may validly proceed to judgment. The answer is that art. 333 plainly makes the distinction between the voluntary appearance and act of defendant in joining issue by his answer, and the tacit issue joined by default. In the first case all exceptions, except such as relate to the absolute incompetency of the judge, are cut off by answer filed : in the second case all dilatory exceptions are cut off by default. “Dilatory exceptions are such as do not tend to defeat the action, but only to retard its progress.” C. P. Art. 332. “Declinatory exceptions do not tend to defeat the demandbut they do tend to defeat the action: that is, if they are maintained, the suit must be dismissed. Arts. 331, 335.

There are two kinds of declinatory exceptions, 1st: “ When the exception is taken to the competency of the judge, pursuant to the rules above provided.” The other is lis pendens. The rules thus referred to, “provided above,” are those which relate to the competency of the judge, art. 86, et seq. Art. 87 prescribes the manner of ascertaining whether the judge be competent, that is, by considering: 1st. The object or the amount in dispute. 2d. The person of the defendant. 3d. The place where the action is to be brought.

Article 89 lays down the general rule that the defendant must be sued at the place of his domicile or usual residence, and art. 93 is the exception to that rule, considered with reference to the competency of the judge. If the defendant plead to the merit, the judge, competent with respect to the object or the amount in dispute, and competent with respect to the place at which the suit is brought, is also competent with respect to the person of the defendant, who, by pleading to the merit, has submitted, voluntarily, to a jurisdiction from which he would otherwise have been exempt.

Prom these several articles the following rules are clearly deducible:

1st. After answer filed, all exceptions, whether dilatory or declinatory, are cut off. Arts. 93 and 333, paragraph 1.

2d. After judgment by default, all dilatory exceptions are cut off. Paragraph 2.

3d. The declinatory exception to the competency of the judge, as provided in arts. 87, et seq., is cut off only by the actual joinder of issue, by answer or plea to the merit. Of course want of competency, ratione materice, may be set up at any time.

The consequence follows, logically, and irresistibly, that the judgment by default does not give jurisdiction to the judge, incompetent by reason of the domicile of the defendant; and if he proceed to judgment, in confirmation of a default, the defendant may attack that judgment for nullity for want of jurisdiction, and have it declared void, on proper proof.

Jurisdiction, the competency of judges, is the creature of the law ; and our law has taken care to define it by precise rules. It exists only where it has been conferred by law. The attempt of a judge to exercise power and authority not conferred by law, is usurpation, and is void. The Code of Practice makes but a single distinction between jurisdiction ratione materice, and jurisdiction ratione personce: and that is: want of jurisdiction, of competency ratione materice, cannot be cured by the act or consent of the parties; while want of jurisdiction, of competency, ratione personce, may be waived by the consent and act of the defendant, in the manner, and only in the manner prescribed by law, that is, by the voluntary appearance of the defendant, and his answer or plea to the merit. All j udgments rendered by judges not competent in the sense of arts. 86, et seq., are void. The competency of the judge ratione personce is as absolute as incompetency ratione materice, except, that in the manner authorized by and prescribed in art. 93, the defendant, if he chooses, may remove the incompetency ratione personce.

The case of Phipps vs. Snodgrass, ante, p. 88, is relied upon as establishing a different doctrine. That case was decided correctly; but it differs widely from this.

Phipps brought suit against Snodgrass and wife, on her note and mortgage. Service was made on both at their domicile in New Orleans, as shown by the sheriff’s return ; and in due time judgment by default was taken against both. She alone filed an exception, in these words:

“Now into court comes Mrs. R. Snodgrass, and ior her exception to the plaintiff’s suit pleads that she resides out of the jurisdiction of this court, and she prays that plaintiff’s suit be dismissed, and for all general relief.”

In Adlé vs. Anty, 1 An. 261, and Tillett vs. Upton, 12 An. 146, it was held that where default has been taken against husband and wife, and she appears alone and pleads, the default cannot, legally, be set aside; and plaintiff may disregard her plea, and have the default confirmed. That is what was done in this case. The exception was never tried. Mrs. Snodgrass made an attempt to have the case removed into the U. S. C. Court; but her bond, like her plea, was without the aid and assistance •of her husband. The defendants appealed to this court. There was no proof on their part; and the question really was, whether the default was properly confirmed.

Her plea, beside her utter want of capacity to appear in court without the authority of her husband, R. C. C. art. 121, contained no cause of ■exception. The truth of the plea, as matter of fact, was disproved, prima facie, by the sheriff’s return of service at the domicile. Her petition for removal, declared that she was a citizen of the State of Louisiana; and her exception did not disclose her place of residence. It was a mere nullity in form and in substance ; and if her husband had joined her in the plea, the judge could not have allowed it to prevent the taking of a default, or the confirmation of the default.

In Goodrich’s ease the want of competency of the judge is pleaded and set forth with minuteness and detail of dates and circumstances ; and the proof of the alleged domicile is complete. No act, no plea, no consent on the part of Goodrich invested the judge with jurisdiction, or deprived Goodrich of the right to be sued only before his own judge and at his domicile. It is the misfortune of Hunton if he resorted to a tribunal not having jurisdiction ; but he could have learned by inquiry of Pilcher & Barrow, successors of Pilcher & Goodrich, that the latter firm no longer existed ; 'and that Goodrich resided at his domicile in Carroll parish. He did ascertain the names of the persons who composed the firm of Pilcher & Goodrich ; and ho set them out in full in his petition. One question more of the person who gave him the names would probably have given him full information as to the domicile of each of them respectively. Hardship or inconvenience cannot control the application of positive law ; but the hardship in this case is more apparent than real.

The jurisdiction of the courts should be fixed and settled ; and I would yield my opinion to that of my brethren, in this case, if I could do so consistently. My convictions are such that I cannot assent to the conclusions of the majority of the court: and the importance of the questions constrains me to give thus fully the reasons for my dissent. If we can deal with the case, I think the judgment appealed from should be reversed : that the judgment in the original suit, in favor of Hunton against Goodrich, should be declared null and void for want of jurisdiction, competency ; and that the injunction granted in limine should be reinstated and perpetuated.


text:
    No. 6009.
    Mrs. A. Sewell et al. vs. Robt. Watson.
    Vacant property, whose owner does not reside in the parish where it is situated, may be validly assessed as the property of its immediately preceding, but deceased owner, of whose succession, it is a part and in whose name it stood on the public records.
    The valid judgment of a court, rendered in a monition proceeding, homologating a tax sale of property, has the force of res adjndicata and operates as a complete bar against minors, and all other parties in interest, on account of any illegality or informality in the proceedings whether before or after the judgment, and shall b i conclusive proof that the sale was made according to law.
    APPEAL from the Sixth District Court, parish' of Orleans. J. Saucier,

      Merrick, Face & Foster for plaintiffs and appellees.

      J. Q. A. Fellows for defendant and appellant.
   The opinion of the court was delivered by

White, J.

Plaintiff institutes this petitory action to recover certain real estate, described in the title upon which she relies as “ three certain lots of ground designated by the letters C, D and E, in square No. 1, situated in the town of Bloomingdale.” She prays in addition for a judgment for the rents and revenues.

The defendant admits possession ; claims that such possession has continued since 1861, he having purchased the property in December of that year from J. M. Bach by act before Edward Barnett, notary. That his vendor purchased the same on the 10th day of December, 1851, at a sale made by the tax collector of the parish of Jefferson ; that any defects in said tax sale were cured by monition duly homologated on the 11th of February, 1862, and denies that the property has produced revenue ; avers the payment by himself and vendor of taxes, and prays “ that his right to claim damages and the reimbursement of taxes as alleged'be reserved him.” By supplemental answer, he avers payment of taxes to an amount exceeding five hundred dollars, for which he prays judgment in reconvention, in the event of plaintiff being decreed to be the owner of the property. Subsequently, he filed the plea of the prescription of ten years. The lower court decréed the plaintiff to be the owner of the property, and rejected the claim for revenues as well as the reeonventional demand; the defendant appealed, and the appellee answered by a prayer for the allowance of revenues.

We will first notice the question of title. The facts, as disclosed by the record, are. as follows : On the 18th of April, 1848, James II. Coleman bought the property in controversy at a sheriff’s sale. In March, 1849, James H. Coleman died, leaving a widow and minor child, then about three years of age. His succession was opened in the same month and year by the qualification of his widow as natural tutrix of his minor child. On the 18th May, 1849, the widow was appointed administratrix; an inventory was taken, but the property now claimed was not included in it. On the 7th of April, 1850, Mrs. Coleman died, and W. H. Dameron was appointed her executor, and in June, 1851, the same person was appointed administrator of the succession of James H. Coleman, made vacant by the death of Mrs. Coleman. On the 10th of December, 1851, the tax collector of Jefferson parish sold to J. M. Bach as the property of James H. Coleman, “ according to tax roll of 1850,” the property now sued for. On- the 23d December, 1861, Bach applied for a monition as to this sale, which was duly homologated on the 11th ■of February, 1862. On the 27th December, 1861, Bach sold all bis right, title, and interest in and to the property sued for to Robert Watson, the present defendant. On the 11th of December, 1871, Agelina Coleman, wife of Sewell, was recognized as the sole legal heir of her deceased father and' mother, and as such put in possession of their estate.

All the foregoing facts are abundantly established by the documentary proof in the record, except the proceedings and sale of the tax collector to Bach, which are not in the record, and do not appear to have been offered in evidence, as they are not mentioned in the note of evidence — although the briefs of both the counsel for plaintiff and defendant seem to consider that the record of the proceedings which caused the tax collector’s sale, and a copy of such sale, is in the transcript. Under this condition of proof we have taken the statement of the sale by the tax collector from .the briefs of counsel, from the recitals contained in the sale from Bach to Watson, and from the-monition proceedings.

The plaintiff and appellee relies on the following propositions as conclusively demonstrating the nullity of the tax assessment and sale thereunder : 1st. That the property was assessed in the name of James H. Goleman on the rolls of 1850, while he died in 1849. 2d. Because the tax sale was made against Coleman.

We think neither ground good. The property stood on the public records as that of James H. Coleman, and was so assessed. It was vacant property, arid the owner did not reside in the parish. The assessor in listing the property for taxation could have assessed it in no other way than as it stood on the records of the country, unless it be considered that it was his duty to be informed of facts not public, not to be ascertained from the condition of the property or from its occupants, for it had none.

This court, in City of New Orleans vs. Ferguson, 28 A. 240, held that an assessment in the name of Mrs. J. A. Ferguson, without adding the words “estate of,” made after the death of Mrs. Ferguson, was binding; and we see no good reason to depart from the rule thus laid down.

The estate of Coleman was under administration in the parish of Orleans, and the assessment in the name of estate of James H. Coleman would, even according to the views of appellee, have been binding, and we think was so in the name of James H. Coleman. We of course express no opinion as to whether such would be the case as to an assessment against a resident or even against a non-resident of seated property.

2d. The assessment being valid, the validity of the sale is the necessary result. By the third section of the act No. 81 of 1845, session acts of 1845, p. 39, the possession of the rolls, duly made out, by the tax .collector, operated as an execution in his hands, and such being the case irregularities in execution of the'process have long since, by effect of the monition, passed beyond the reach of judicial examination.

“ The judgment of the court confirming and homologating the sale shall have the force of res judicata, and operate as a complete bar against all persons, whether of age or minors, whether present or absent, who may thereafter claim the property sold in consequence of an illegality or informality in the proceedings, whether before or after judgment; and the judgment of homologation shall in all eases be considered as full and conclusive proof that the sale was duly made according to law in virtue of a judgment or order legally and regularly pronounced in the interest of parties duly represented.” R. S. 237G.

The judgment below is reversed ; and judgment be and the same is hereby rendered in favor of the defendant and against the plaintiff, recognizing defendant, Robert Watson, as owner of the property in controversy, with costs against plaintiff in both courts.


author: Spencer, J.

text:
    No. 7501.
    The People’s Bank vs. Amelie Girod, Wife, etc.
    Parol evidence is admissible to prove the interruption of prescription.
    A revocatory action to annul a mortgage made by an insolvent to secure a pre-existing debt, on the ground that the mortgage gave the creditor in whose favor it was made an unjust preforenee, is prescribed in one year from the date of the mortgage.
    j^PPEAL from the Fourth District Court, parish of Orleans. Houston,

      E. H. Me Caleb for plaintiff and appellant.

      J. Ad. Boder and T. Gilmore & Sons for intervenors, appellees.

      Bobert Mott for public administrator.
   The opinion of the court was delivered by

Spencer, J.

This is a revpcatory action brought by plaintiff, who is joined by intervenor, to have annulled and set aside as fraudulent* and simulated, first, a notarial act of mortgage, executed by Joseph Girod, on 14th June, 1876, in favor of his four daughters, Constance, Amelie, Angel, and Elodie, to secure to them $4000 each, which he therein acknowledges to owe them; second, a judgment rendered in their favor against their father for the amount of said mortgage debt.

The debts held by plaintiff and intervenor against Girod arose from his notes given in December, 1874. Judgments were rendered in their favor against Girod in 1878. This suit in revocation was brought in 1878.

The grounds upon which plaintiff’s demands are founded are, in substance, that Joseph Girod was not indebted to his daughters, as set forth in said act. That if he ever'owed them anything, the debt was barred by prescription at the date of said mortgage, which prescription is specially pleaded; that Girod was at the time and to the knowledge of his daughters, insolvent; that the judgment was by consent obtained before the pretended debt was due, and was but the execution of a conspiracy to defraud the father’s creditors, and conferred unjust preference.

The defendants plead a general denial, prescription of one year, and aver the justness and legality of their mortgage and judgment.

The evidence is very voluminous. It shows that Joseph Girod and his wife were married in 1829 ; that he received large sums of money coming to her from her parents and grand parents ; that she died in 1858, leaving five children — the four daughters named and a son, Didier; that the son died in 1863, without other heirs than his father and four sisters.

After the death of Mrs. Girod in 1858, an inventory showed community property to over 140,000 in amount. The eldest child, Constance, being then of age, conveyed to her father her share therein for some $4400, of which she in the deed acknowledges receipt. The father then had all the community property held by the minors adjudicated to him, and executed a special mortgage thereon in their favor to secure their part of the price. It is shown abundantly by oral and written evidence that the transfer by Constance to her father was without consideration, and made to enable him to give the special mortgage to the minors more satisfactorily to the court. In 1863 Girod, by authentic act, long before plaintiffs rights arose, recognized these facts and acknowledged his debt to Constance, and granted her a special mortgage to secure it.

The evidence does not leave the shadow of a doubt that on 14th June, 1876, 'when Girod executed the mortgage in question he honestly owed his daughters every dollar of the amount there acknowledged and even more. The only questions are, was the debt barred by prescription at that, time, and if so, was Girod insolvent. An insolvent debtor can not revive and resuscitate a prescribed debt to the prejudice of his creditors.

The weight of evidence goes to show that at that time, July, 1876, his property was assessed at about $63,000 ; and that two experienced real estate brokers made an estimation of it then at about $51,000. Their estimate was based upon its value at private sale, on the usual terms of one-third or one-half cash and the balance on time. His debts outside of the claim of his daughters did not exceed $32,000. His solvency was to say the least doubtful, and some two years later, his property, sold at forced sale, proved largely insufficient to meet his debts. The evidence showing interruption of prescription, consists of the act. of mortgage in 1858 to the minors and , that of 1863 to Constance. Under these acts no notes were given, but the debts were acknowledged. At various times, the father sold different pieces of these mortgaged properties, and the daughters intervened in the acts, and reciting their claims, relinquished their mortgages upon the properties sold, reserving their rights otherwise. There is oral evidence, and written memoranda of Girod, tending to show that he repeatedly acknowledged his liability to his children. They were his daughters, living with him, and caring for him in his old age. He justly owed them large amounts. It is entirely reasonable and natural that he should have spoken to them often in acknowledgment of their claims upon him. The evidence is strengthened by the inherent probabilities of the case. Yerbal acknowledgments may be proven to interrupt prescription, but evidence of oral renunciations of an already acquired prescription is inadmissible. The evidence satisfied the judge a quo that the debt of Girod to his daughters was indisputably just and honest, and that it was not barred by prescription in July, 1876, when the mortgage was given. We are led to the same conclusion.

We have seen that at that time Girod’s insolvency was by no means notorious — in fact, i! we are to credit experts in property values, he was solvent. The daughters are not shown to have known the extent of his liabilities, which were all precipitated upon by endorsements for other people. The evidence is that they did not know, and liad not reason to suppose, him insolvent.

But be this as it may, their debt was a just one, and the only ground upon which their mortgage can be attacked, is that it created in their favor an unjust preference. The action to annul for this cause must be brought within one year from the date of the contract. C. C. (old) 1982. That the plaintiff and intervenor have not done, and the plea of prescription by defendants was rightfully maintained.

We do not think this a proper case for damages.

Judgment affirmed, at costs of appellants.

Mr. Justice White, being recused, takes no part in this decision.