author: Nicholls, C. J. Watkins, J.

text:
    No. 11,708.
    Widow and Heirs of D. L. Simonin vs. Oscar Czarnowski.
    Where the mortuaria in a succession show the confirmation of a natural tutrix and under-tutor to the minor children of a deceased person, an inventory signed by them, proceedings of a family meeting, homologated by the court upon a proces verbal regular in every respect, approved by the under-tutor, an order of sale, based on those proceedings, followed by a sale on the terms fixed, a final account and tableau of distribution signed by the tutrix, approved by the under-tutor, and homologated by the court, carrying the proceeds of the sale to the credit of the succession and the balance to the payment cf privileged debts of the succession and the balance to the payment of a debt declared to be due the purchaser at the sale, and an order finally made by the court, upon the application of the tutrix, after a hearing contradictorily had with the under-tutor, canceling the mortgage \ipon the property of the tutrix, on the allegation that the property of the succession had all been disposed of, had proved insufficient to pay its debts and left nothing for the minors, it can scarcely be asserted that the administration of the succession was a “fictitious ” one, or claimed that the purchaser at the public succession sale could be proceeded against by a petitory action, ignoring the succession proceedings To reach the purchaser and the property sold, actions of nullity were essentially necessary.
    Though the tutrix may not have known the “name” of the particular attorney who conducted the succession proceedings in her name, and may not have employed that particular attorney, or authorized any one to employ him, it does not follow that the proceedings taken through the attorney were null and void; they must stand, if, with her consent, “ am,” attorney had been employed and she had acted upon proceedings taken out in her name by him.
    If the property of a succession is sent to sale to pay debts by reason of the administration having no funds wherewith to pay the same, the sale will stand if the debts actually due were such as to call for the sale, although the application for the sale may have set forth a larger amount as being due than really existed.
    If a purchaser of succession property, at a succession sale, pays a portion of the price to meet privileged claims, receives a deed in which it is declared that he retains the balance in his own hands, secured by special mortgage and vendor’s privilege in favor of the succession, conditioned to meet all claims which might be adjudged prior to his own, and si bsequently an account is filed and regularly homologated, in which he is recognized as acreditor for the retained balance, the adjudication to him can not be treated as an absolute nullity on. a claim that he was not a creditor of the succession, or a creditor to the amount he asserted himself to be.
    The fact of the homologation of a final account without the production of vouchers in support of the claims therein set forth loses in an “action of nullity” the force which it would have on an “ appeal.”
    A PPEAL from the Oivil District Court for the Parish of Orleans. -A Rightor, J.

      Clegg & Thorpe and Fred. Adolph for Plaintiffs, Appellees:
    Cite 33 An. 615; 34 An. 288; 15 An. 569; 10 An. 18; 4 Rob. 204; 43 An. 263; 129 U. S. 86; 5 R. 288; 2 An. 785; 33 An. 615; 46 An. 1316; 12 An. 545; Abbott, Trial Ev. 236.

      William W. Howe for Defendant, Appellee:
    Cites O. P. 986, 613; 36 An. 780; 38 An. 379, 885; C. C. 3542, 3543; 3544,3478; 27 An. 576; 4 R. 23; 21 An. 353; 37 An. 417; 38 An. 863; 28 An. 626; 24 An. 260; 26 An. 587; 96 ü. S. 617; 99 ü. S. 513; 143 U. S. 250; 102 U. S. 79; 7 An. 95; 156 U. S. 454; 29 An. 493; 30 An. 853, 1071; 13 L. 125.
    Argued and submitted May 8, 1895.
    Opinion handed down June 3, 1895.
    Opinion refusing rehearing June 29, 1895.
    D. L. Simonin, the husband of one of the plaintiffs and father of the others, died in New Orleans on the 4th of March, 1868, leaving a number of minor children, the youngest of whom was born n 1864. His succession was opened on the 10th of July of the same year through an application of his widow to have an inventory made, herself confirmed as natural tutrix and an under-tutor appointed. She confirmed as such under an order of the judge on the same day. Oscar Simonin, an uncle of the children, was appointed and confirmed as under-tutor. John J. Finney, attorney at law, appeared as acting for the widow in the original petition, and as acting for her as natural tutrix throughout the whole o the legal proceedings except in the special instance hereafter referred to.
    An inventory was taken at her instance on the 15th of July, which she signed, as did the under-tutor. On September 4 a petition was presented in the court in her individual name and as tutrix, in which it was recited that the succession of her husband was largely indebted to Oscar Ozarnowski, who was the sole creditor of the succession, and that when all the necessary expenses attending the settlement of the succession were paid, the entire assets would be un - able to pay the said sole creditor (Czarnowski) in full; that neither herself nor her children possessed anything in her or their own right, and that she and they were in necessitous circumstances, and that she was by law entitled to one thousand dollars out of the assets of the succession for the benefit of her minor children. That the household furniture inventoried had been appraised at $550; that she thought it would be of advantage to the minors to retain the furniture in kind, and that the sole creditor, Czarnowski, was willing to permit her to retain the same at its appraised value as part of the one thousand dollars allowed her by law.
    That in order to pay Czarnowski and defray the expenses attending the settlement of the succession, it was necessary to sell the real estate; that in order to deliberate on the propriety of making the sale it was necessary that a family meeting should be convoked. She prayed for the convocation of a family meeting, to be composed of certain persons whom she names (relatives of the minors), and that she be authorized to retain the household furniture, the consent of the sole creditor being considered. Accompanying the petition was the written consent of Czarnowski to her retaining the furniture.
    A family meeting was ordered to be convened, as prayed for, and it was held on the 12th of September, before DeArmas, notary, composed of the parties selected: James Hamilton, Charles Parker, Julius Czarnowski, Theodore Konigslow and Frederic Konigslow, Charles Parker being a nephew of Mrs. Simonin and the two Konigslows her half-brothers. The notary, in his prooes verbal of the meeting, after making the usual declarations as to the order by virtue of which he was acting and embodying therein in full the petition of the widow and tutrix and showing the observance of the formalities and requirements of law exacted in the matters of a family meeting, recited that after mature deliberation the members of said family meeting declared that, inasmuch as the estate of the late D. L. Simonin 'was, within their personal knowledge, heavily indebted, and there were no ready funds to meet said debts, including the cost of settlement of said succession, they were therefore unanimously of opinion that it was necessary to sell the real estate in order to liquidate' the succession. That they were of the opinion and recommended that one • half of the price should be paid cash and one-half at a credit of one year, with eight per cent, per annum from date of sale, with the usual guarantee of special mortgage and vendor’s privilege, and the members declared that they were unanimously of opinion that the widow should be authorized to keep the household furniture at its appraised value of $558, in part payment of the $1000 allowed by law to her and her minor children. The under-tutor approved these deliberations and signed the proees verbal.

    On the 17th September, upon a petition of the widow and natural tutrix, the proceedings of the family meeting were homologated and the sale recommended was ordered to be made on the terms and conditions fixed.
    The property was adjudicated to the defendant on the terms and conditions ordered on the 11th January, 1869.
    On the 15th of January, 1869, a petition was filed by John J. Finney, attorney at law, in the name of the widow and natural tutrix, in which it was declared that she had prepared and therewith presented as annexed to and made part thereof a tableau of distribution and account of her .administration as tutrix; that the same contained a true and faithful account of all the claims which have been made against the succession, and that the proceeds of the sale sold on the 12th January, 1869, were the only assets of the succession. She prayed that after legal delays and due legal advertisement the account be approved and homologated, and that she be authorized to pay off all the claims as therein set forth. The account annexed to the petition was signed by the tutrix and approved by the under-tutor. On the 20th January, 1869, a judgment was rendered declaring that, on producing to the court due proof that the account filed by Mrs. Widow Simonin in her capacity of natural tutrix, as such administering the succession of her deceased husband, D. L. Simonin, has been advertised according to law and that no opposition had been filed thereto, it was ordered that the account be approved and homologated, and the funds distributed accordingly.
    The account showed privileged claims to the amount of one thousand and twenty-six dollars and an ordinary debt of three thousand nine hundred and seventy-three dollars as due to Oscar Czarnowski.
    The only asset brought on the account was the proceeds of the sale of real estate, five thousand dollars.
    After deducting the amount of the privileged claims from the amount of the proceeds of sale, accountant showed a balance of three thousand nine hundred and seventy-three dollars, which she declared Czarnowski retained after advancing the amount necessary to pay off the privileged claims (one thousand and twenty-six dollars), his claim covering the balance.
    Among the privileged claims was an amount of four hundred and fifty dollars carried on the account as “ Balance of one thousand dollars due the widow and heirs after deducting the appraised value of the household furniture which she was allowed to retain by order of court.”
    On the 14th May, 1870, a motion was filed in the succession of D. L. Simonin to the following effect:
    “ On motion of Hornor & Benedict, attorneys for Appoline Simonin, natural tutrix of the minor children, issue of her marriage with deceased, and on showing to the court that she has rendered her final account herein by which the whole property of the succession was distributed, there not being sufficient to pay debts. That there remains nothing for the minors, but that the clerk of this court has recorded her certificate of tutorship and that such record operates as a mortgage upon a certain lot (described in the motion). It is ordered by the court that Oscar Simonin, under-tutor of said minors, do show cause on Saturday, May 14, 1870, why said mortgage should not be canceled.”
    The rule was taken up on the day fixed, the under-tutor being present. The rule was made absolute, and the recorder ordered to erase from his records the inscription of the certificate of tutorship of Mrs. Widow D. L. Simonin as natural tutrix of her minor children (naming them), in so far as it affected the described property. Over twenty-three years elapsed between the sale of the property to the defendant, the homologation of the account, and the distribution of the funds under the orders of court, and the date of the filing of the present suit by the widow and heirs of Simonin (September 10, 1892) , and that at that date the youngest child, Oora Simonin, was about twenty-eight years old.
    The prayer of the widow and heirs of Simonin in the present suit is that there be judgment in their favor, setting aside the judgment, homologating the proceedings of the family meeting, and the order for the sale of the property as having been illegally and improvidently granted, annulling and avoiding the pretended sale of the property on the 11th January, 1869, to the defendant; that it be restored by him to the succession, and that he be condemned to pay nine hundred dollars rent per annum from 11th January, 1869, as a possessor in bad faith.
    In addition to the defence set up in the answer defendant pleaded prescription under Arts. 3479, 3485 and 3487 of the Oivil Oode; also the prescription of one, three, five and ten years, and prescription under Arts. 3392, 3478, 3498, 3542 and 3543 of the Civil Code.
    The District Court rendered judgment in favor of the plaintiffs, declaring null and void the sale of the property to defendant, ordering it to be restored to the widow and heirs of Simonin, and condemning defendant to pay as rent the sum of twelve thousand dollars, with interest from the date of judgment, subject to a credit of eight thousand nine hundred and seventy-three dollars, which the court allowed the defendant upon a reconventional demand contingently set up by him.
    Defendant appealed.
    In answer to the appeal plaintiffs prayed that one of the items of the reconventional demand be rejected entirely and another reduced.
   The opinion of the court was delivered by

Nicholls, C. J.

Counsel of plaintiffs, on the argument, conceded that their demand was barred by prescription unless they could succeed in sustaining the position contended for by them that the only prescription applicable to it was that of thirty years.

They contend that the present is substantially a petitory action; that the property of the succession is in the illegal possession of defendant, under guise of a succession administration which had no reality but was a fraudulent simulation concocted by him to despoil the widow and heirs of the deceased of their p; operty; that without authority he opened the succession and employed an attorney to conduct the mortuary proceedings, who, under false representations received from his employer, made to the court recitals of fact which were absolutely without foundation, to the effect that the deceased was heavily indebted to him; that on the strength of these false statements the court was induced to issue an order for the convocation of a family meeting on behalf of the minors to consider the necessity and propriety of a sale of the real estate in order to pay his and other claims against the succession; that the family meeting so ordered, acting also on the faith of these false representations, recommended a sale, and their proceedings were erroneously and improvidently, through the fraud of defendant, homologated by the court and a sale ordered; that a sale followed for cash, instead of on the terms fixed by the family meeting, at which an adjudication was made to defendant; that he paid no portion of the price, but illegally retained it, under pretence of holding a large claim against the succession; that he subsequently fraudulently caused the homologation of what purported to ' be an account of tutorship filed by her, in which she is made to recognize his claims and consent to their being paid out of the proceeds of the sale; that throughout these whole proceedings the real actor was the defendant himself and not the widow and tutrix; that his relations with Simonin and his family had been close, confidential and fiduciary, and his conduct in this matter was treacherous and illegal.

That he availed himself of his intimate connection with the family to obtain possession of papers of the deceased upon which, so obtained, he bolstered up an unfounded claim against the succession, and that the case presents a condition of affairs such as to throw it under the decisions of this court in Bledsoe vs. Irwin, 33 An. 615, and Gillespie vs. Twitchell, 34 An 288.

In view of the gravity of the charges brought against defendant, and the fact that they were sustained by the judgment of the District Court, we have examined the testimony in this ease with special care, and we have reached the conclusion that the judgment can not stand. In the first place, there is nothing to warrant the statement that defendant’s relations toward Simonin and his famly were fiduciary, or that he ever obtained possession of papers illegally or improperly.

There is no doubt that the relations between all parties up to the death of Simonin, and for some time thereafter, were close and intimate, such as would naturally arise and be found between relatives, but nothing more. It is a mistake, we think, to speak of Simonin as the benefactor of the defendant. He seems, from the time he reached New Orleans, to have been industrious and self-supporting, and at the date of Simonin’s death he was a man of means.. He had unquestionably received from Simonin various acts of kindness, it being shown for instance that when wounded as a soldier he was an inmate for some time of his house. For some reason not directly disclosed, there occurred about the time of the opening of the succession an estrangement between the defendant and some of the members of the family. We do not think it arose from any dispute as to ihe claims of indebtedness which defendant has set up as due to him, but from other causes. The widow charged in her petition, and she subsequently supported the charge by an affidavit, that she did not employ Mr. Finney as an attorney, and gave no one directly or indirectly authority to do so. That fact can be conceded, and is doubtless literally true, but it does not lead up to the result which is contended for as flowing from it. Though Mrs. Simonin may not have known the “ name ” of the particular attorney who conducted the proceeding, and neither employed him herself nor gave others power to do so, we think it established that she was aware that the succession had been opened in her behalf by some attorney, though she may have been ignorant of, as she doubtless was indifferent to, his identity. We think the opening of the succession and the employment of an attorney was with her knowledge and by her consent, express or implied.

Defendant testifies that he was employed actually by Charles Parker,Mr. Simonin’s nephew, and that he recommended him. Her action (after a petition had been filed in her name, asking for confirmation as natural tutrix) in going forward and taking and subscribing her oath as tutrix indicate clearly that she was advised of the petition. It can scarcely, we think, be asserted, after a tutrix and under-tutor had been qualified, that the administration was a “pure simulation.” The succession was certainly opened” independently of any question as to whether the attorney who had invoked the court’s action was individually specially authorized in that behalf or not.

In the next place it is clearly shown that the widow and tutrix was informed of the fact that defendant claimed to be a creditor of the succession, and that a sale would be sought in order to pay those claims. A family meeting was convoked, of which her two stepbrothers (the Konigslows) and her nephew, Charles Parker (who was an inmate of her family), were members. Not only this, bub the under-tutor of the minors (who was their uncle) was present, approved of the proceedings and signed the same. Ignorance of this particular proceeding by the tutrix under such circumstances would be hard to believe. It is attempted to be shown by the two Konigslows that the family meeting was itself a mere simulation — that it really did not take place as recited, but we would be slow to accept their statements as to such gross violation of duty by a sworn officer, who had no possible interest in falsifying his records. To believe this would be to bring not only the notary but all the members of the meeting and the witnesses into willingly certifying by their signatures to a state of facts which had no existence. Now, if the tutrix knew (as she undoubtedly did 'as well then as now) that Ozarnowski claimed to be a creditor of her husband and that he was about to enforce his rights, it is extraordinary if she did not at that time believe them to be well founded, and if they were, as she now says they were, pure fabrications, why she or some one of the relatives of the minor failed to say a word in opposition to the sale or to the recognition of the defendant’s pretensions. Without expense, without trouble, defendant’s whole scheme, if such it was, would have been instantly broken up. It is difficult to realize that this man’s influence and control for wrong doing extended over every person who had anything to do with this succession. It is claimed that the adjudication to the defendant of the property was for cash instead of the terms fixed by the family meeting. That was a most serious allegation, and caused us to direct our attention at once to the subject. We do not find the averment borne out. The adjudication followed the court’s order, one-half cash, one-half on credit. The adjudication is one thing — the subsequent act of sale between the parties is another. It appears that after the adjudication had been made the auctioneer who had been ordered to make the sale made a deed to the defendant in which payment of the price was provided for in a manner different from what the terms of sale called for and different from that which would have been followed had the property been bid in by a person having no connection with the succession. As it was the adjudicatee, claiming to be a heavy creditor of the succession, paid into the hands of the auctioneer one thousand and twenty-six dollars, and retained with his consent the balance, secured by special mortgage and vendor’s privilege in favor of the succession, subject to the orders of the court to be rendered upon the final homologation of the tableau or account of liquidation of the succession in case there should not be a sufficiency to meet all debts and costs having preference over and before the claims of the purchaser.

This course has been several times recognized as one authorized to be followed. It would be too late to urge this objection in this particular case now, even if it were irregular. The tableau filed, which showed that fact, was approved by the under-tutor and by the court; all the debts of the succession were paid, and the exact balance retained by the purchaser was adjudged and decreed to be due to him. The one thousand and twenty-six dollars which were actually paid by the adjudieatee was the amount of the privileged claims due by the succession.

It is charged that there was no debt due to Czarnowski at the time of the family meeting and sale. We think differently. He held possession at that time of a mortgage note of the deceased which had been secured by mortgage on this very property, and on the trial of this cause he produced the note and swore positively to the fact that he had himself, taken it up and paid it for Simonin in 1868, shortly before his death. He further swore that he had made several payments of interest upon the note, for the benefit of Simonin. He had also taken up a due bill of eight or nine hundred dollars, due by Simonin to his sister-in-law, Mrs. Parker.

Plaintiffs seek to avoid the effect of this testimony as to the mortgage note by showing that in the account filed by the executor of the succession of Pennison in 1864, this note, which had belonged to that succession, was put down as having been already at that time collected by the executor. We think this attack has been successfully met by the signed endorsement of Simonin himself on the note in 1867, showing that it was on that date extended as to payment to January, 1868. We think it quite likely, as suggested by defendant’s counsel, that the executor, willing to consider, did consider the note as so much cash in his hands, and settled with the heirs on that basis, keeping the note himself.

We need not go into any critical examination of the amount due to Czarnowski at the dates of the family meeting, or the sale, for the reason that in so far as the validity of the sale was concerned it would stand even if the amount due him was less than he claimed it to be. The succession undoubtedly had no funds in hand, and it owed debts to some extent independently of the debt* due to Czarnowski. The property was properly sent to sale to pay those debts, and if Czarnowski’s claim was smaller than he asserted it to be, the effect of that fact would be not to undo the adjudication, but to charge him with any difference there would be between the amount of his bid, the cash paid by him, and the amount actually due to him. Lynch vs. Kitchen, 2 An. 845; Gay vs. Hebert, 44 An. 306, 307; Truxillo vs. Delaune et al., 47 An. 16; Amato vs. Ermann & Cahn, 47 An. 967.

He would simply have come under a money liability for so much of the purchase price as remained unpaid, and prescription would run in his favor from the date of the homologation of the account. If prescription was permitted to accrue, the tutor was responsible for it.

Plaintiffs say it is a strange fact that the amount placed in the account as due to the defendant should have been the exact amount necessary to absorb the balance of the assets left after the payment of the privileged claim, but we see nothing suspicious in that circumstance. He had claimed to be a creditor for over nine thousand dollars, and he still claims to have been such, but as the succession was insolvent there - was no necessity to make him figure on the account for an amount larger than he could ever possibly get.

Plaintiffs say the account was homologated without the production of vouchers. This would have been of importance on an appeal, but it loses its force in an action of nullity.

The tutor and under-tutor, after the sale, both signed the final account which the tutrix presented, in which Czarnowski’s claim was recognized and ordered to be paid by the court, and after everything was closed the tutrix presented to the court, in the matter of the succession, not through John J. Finney, but through Hornor & Benedict, as her attorneys, a motion in which the fact is stated that the property of the succession had been disposed of; that it had been found insufficient to pay its debts; that there remained nothing for the minors, and that the mortgage securing her tutorship sh uld, therefore, be canceled on a piece of property in which it seems it was found she had an interest. It is claimed in this instance, again, that the attorneys who represented her had not been employed by her, but her mother; but her brother’s testimony shows the contrary. It was he who employed the attorneys, and he did so after consultation with, and with the consent of, his sister. It is not pretended they were employed by Czarnowski. We do not understand how it can be claimed that the administration of a succession was in any sense a fictitious administration, which was opened by the appointment and confirmation of a tutor and under-tutor, evidenced by their signatures, and closed by a final account, signed by the tutrix, signed and approved by the under-tutor, and homologated by the court, followed by a cancellation of the minor’s mortgage at the instance of the tutrix, through a decree taken contradictorily with the under-tutor upon an application in which the various proceedings which had taken place in the succession, and the final result thereof, were referred to. The present is not purely, as claimed, a petitory action. It was essentially necessary, in order to reach the property in litigation in this case, that actions of nullity should have been instituted within the prescriptible period, but had such actions been brought as against defendant’s title, we do not see how, under the evidence, it could have been shaken. If defendant was open at all to attack it was upon a moneyed demand, based upon his purchase, on the theory that the succession was not indebted to him to the full extent which he claimed it was.

The court below seems to have placed the defendant in the position which he would have occupied at the opening of the succession, claiming to be a creditor with his claim resisted by the widow and tutrix. Obviously this is not the position he occupies. McGehee vs. McGehee, 41 An. 657. The plaintiffs are attacking and seeking to undo accomplished facts twenty-three years after they have taken place, through regular judicial proceedings, and it is not astonishing that defendant was unable to remember or to answer the many questions propounded to him under a most rigid cross-examination, many of which questions were as to collateral and irrelevant facts.

In order to sustain plaintiff’s theory of the facts of this case, both forgery and perjury would have to be proven by them. There is nothing in this record, in our opinion, to justify the charges brought against defendant’s good name.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of the defendant, against the plaintiffs, rejecting plaintiffs’ demand and dismissing their suit, with costs in both courts.

On Application for Rehearing.

Watkins, J.

This is a suit for the annulment of a judicial sale of certain real estate situated on Thalia street, in the city of New Orleans, which was adjudicated to the defendant on the 12th of January, 1869, under an order of sale made in the succession of D. L. Simonin, deceased, for the purpose of paying debts of the deceased.

Plaintiffs’ prayer is for judgment revoking the proceedings of the family meeting leading up to the order of sale, and the order of sale as well; and also condemning defendant to pay nine hundred dollars per annum rent since date of aforesaid sale.

The principal reasons assigned in the petition are that the recom - mendations of the family meeting of September 4, 1868, favoring a sale, and suggesting the necessity thereof, were solely predicated upon the fact that the deceased was indebted to the defendant, and that, upon those representations, the order of sale was granted, directing a sale to be made upon terms to correspond with the recommendations of the family meeting.

That at the sale the property in question was adjudicated to the defendant, ostensibly for five thousand dollars in cash, whereas the terms proposed by the family meeting, were one-half the price in cash, and the balance on a credit of one year, with interest.

. That in fact deceased was not indebted to the defendant, but through fraud and ill-practices he induced the erroneous belief that deceased was indebted to him, and, through their fraudulent representations, defendant inducéd the surviving widow and tutrix to sign an account of administration recognizing said debt.

That the statement in the account, as well as that in the deliberations of the family meeting, was made in error, and through the defendant’s misrepresentations and procurement.

For the foregoing reasons, mainly, plaintiffs allege that the sale to the defendant was a fraudulent simulation in the form and under the guise of a judicial proceeding and sale, suggesting some few irregularities, which are curable by five years’ prescription.

After tendering quite a number of exceptions and dilatory pleas, defendant made an answer, which was practically a general denial.

It is evident that the main question in the controversy was, and on this application must be, the existence vel non of an indebtedness of the deceased and of his succession to the defendant at the time the order was granted, and the sale of the property occurred. All else, at this late day, more than twenty years after the adjudication, must be esteemed of but little moment, in defendant’s title.

The District Judge, in his reasons for judgment, recognized this to be the controlling question in the case, for he says:

“ With the exception of court costs and expenses of last illness, the entire indebtedness of the succession was to the defendant Czarnowski. If that indebtedness was a real one there was full justification for Czarnowski’s action and almost exclusive control of the mortuary proceedings. If it was a fictitious one, then his assumption of control was a suspicious intermeddling, forming part of a scheme of spoliation through the forms of law.”

Taking this as the initial point in the controversy, what are the grounds on which he sustains plaintiffs’ claims and gives them a judgment?

He starts out with the proposition, that as Mrs. Simonin was contradicted, he disbelieved her testimony, and for certain reasons he viewed the testimony of the defendant with the greatest caution.

He then assigns as his reasons why he disbelieved in the existence of the defendant’s claim: (1) That no statement of this indebtedness was furnished until after the adjudication, and when filed it gave no particulars; (2) that by defendant’s own account, the deceased owed defendant only eight hundred and eighty dollars and sixty-seven cents on June 27, 1867, prior to his death, whereas it was increased to five thousand six hundred and eighty-two dollars and sixty-six cents after his death, and this included one thousand five hundred dollars and interest on a mortgage note; and this item seems to have been paid on the 29th of January, 1869, after the filing of the final account; (3) that it is shown by the records of the Peniston succession that the mortgage note in question was paid before the death of the deceased; but the judge stated that he could not, at the time he prepared his reasons, find any of the records of the succession of Peniston after diligent search.

These are all. He then adds:

“ On the whole, and without entering into a critical analysis of the testimony and other evidence * * * I am now satisfied of the correctness of the impression left on my mind at the close of the trial, that there existed in favor of Czarnowski no claim against Simonin at the date of his death.”

Our opinion takes up and fully and satisfactorily disposes of the matter by the statement that, prior to the death of Simonin, the defendant took up the mortgage note of the deceased; and that he retained it in his possession and produced it on the trial, and supported the correctness of this assertion by his sworn evidence. He further states that he made several payments of interest on that note for the deceased; and had taken up for him a due bill of eight hundred or nine hundred dollars due by deceased to his sister-in-law, Mrs. Parker.

With regard to the payment of the note to the succession of Peniston, to which it belonged, our opinion says this attack “was successfully met by the signed endorsement of Simonin himself, on the note in 1867, showing that it was on that date extended as to payment to 1st of January, 1868,” as contradistinguished from the allegation that it was paid in the Peniston succession in 1864.

This relation of proven and indisputable facts puts a quietus on the question of debt, and on the crucial question proposed by the District Judge; consequently the irresistible conclusion was, and still remains, that judgment ought to go in the defendant’s favor on the title.

We note, in this connection, that this question is not mooted in either the application or brief for rehearing. Its correctness thus stands confessed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 7241.
    E. T. Parker, Administrator, vs. Joseph Bilgery et als., on Motion to Dismiss.
    It appearing that since the appeal was obtained, and the transcript lodged in. this court, the appellants became adjudieatees of the judgment appealed from at a public auction sale, said fact operates, necessarily, as an acquiescence in the judgment, and will result in the dismissal of the appeal.
    APPEAL from the Fourth District Court for the Parish of Orleans. Houston, J.

      Frank L. Richardson and Emile Pomés for Plaintiffs, Appellees, for the motion.

      Rouse & Grant for Defendants, Appellants, contra.

    Submitted on briefs May 11, 1895.
    Opinion handed down June 3, 1895.
    Opinion refusing rehearing June 27, 1895.

      On Motion to Dismiss Appeal.
   The opinion of the court was delivered by

Watkins, J.

The ground on which appellee seeks the dismissal of the appeal is that the appellants have acquiesced in the judgment appealed from since that appeal was taken.

The judgment appealed from is one obtained by the succession of Francois Lacroix, of which E. T. Parker was administrator, against the succession and heirs of Joseph Bilgery, numbered 44,498 of the docket of the Fourth District Court of the parish of Orleans, which was rendered and signed on the 24th of October, 1878, and one supplementary thereto, which was rendered and signed on January 31, 1879, now pending on appeal in this court; said judgment decreeing that the succession of Francois Lacroix is the owner of a certain lot of ground, and recover from the widow and heirs of the late Joseph Bilgery the sum of nine hundred and ninety-nine dollars and seventy-five cents, to be paid in certain designated proportions, not necessary to be particularly mentioned.

It is from that judgment that the heirs of Bilgery are appellants.

Ernest Ouculu having become administrator of the estate of Francois Lacroix in place of E. T. Parker, the motion to dismiss is made in his name.

The ground of the motion is to the effect that since the taking of the appeal the heirs of Joseph Bilgery have acquiesced in the judgment by attempting to buy said judgment at a pretended judicial sale at a public auction, though said sale was made without authority, and while the succession, appellee, was not represented; and further, that said appellants have appeared in the suit of Ernest Cuculu, Administrator, vs. J. M. Bilgery et als., No. 41,466 of the Civil District Court, and filed an answer, averring themselves to be the owners of the real estate claimed in this cause by virtue of their pretended purchase at said sale, as will appear by a certified copy of said petition and answer hereto annexed.

Appellants appeared and answered the motion to dismiss, and averred and represented that the “judgment recovered by said E. T. Parker, administrator as aforesaid, from which the appeal herein was taken, and the claim in that suit was sold on the 7th of March, 1879, at public auction by Placide J. Spear, after due proceedings and advertisement, pursuant to an order of the Second District Court for the parish of Orleans, made in the succession of said F. Lacroix, ■which court had jurisdiction over the administration of said succession; and the defendants and appellants in this cause purchased the said claim and judgment in said suit,-and paid the price of one thousand one hundred and fifteen dollars therefor in cash to said auctioneer. That afterward said purchasers took a rule upon the said Spear to compel him to make a prooes verbal of said sale, and a rule was also taken by Mrs. Lacroix, one of the heirs of Francois Lacroix, to set aside said sale. That the rule on Spear was made absolute, and the rule to set aside the sale, taken by Mrs. Lacroix, was dismissed, which judgment upon said rules became final in March, 1879, and have not been appealed from or in any manner set aside, avoided or reversed, but still remain in full force and effect.”

Without proceeding any further in this court, the case was remanded to the court a qua for the administration of proof on the issues thus raised, so that we might be able to act upon it in determining the question before us, viz.: the dismissal of the appeal vel non.

While the question of the appellant’s title to the judgment appealed from, and of its avails, has been much discussed by counsel on either side in their briefs, and that question was gone into in the evidence that was adduced, it strikes our minds that it can not be determined now, and that no judgment we could render thereon would operate as res adjudieata between the parties.

But we think it clearly appears as well by the proof administered as by appellant’s judicial admissions, that the judicial proceedings and sale, whether valid or illegal, have Ihe effect of an acquiescence in the judgment, which must result in the dismissal of the present appeal.

But judgment dismissing the appeal can not, in any manner, affect the rights of appellants as adjudicatees at the auction sale. They are fully reserved.

Appeal dismissed.

On Application por Rehearing.

Oounsel for appellants suggest that the reservation, as suggested in our opinion, should be embodied in the decree. To this there is no objection, and we will supplement our decree accordingly as follows, viz.:

It is therefore ordered and decreed that, as appears from the record and proceedings herein, the appellants have become adjudicatees of the judgment appealed from, and this operates as such an acquiescence therein as to necessitate the dismissal of the appeal, the dismissal of the appeal shall be without prejudice to their rights as adjudicatees, which are fully reserved.

It is further ordered that, as thus amended, our former decree remain undisturbed.


text:
    No. 11,820.
    New Orleans Elevator Company vs. City of New Orleans.
    AYhentbe object and purposes of a suit is to annul an award of arbitrators, the burden is on plaintiff to demonstrate its incorrectness in point of fact, and, failing to discharge it, the attack must fall and tile award left in full force.
    A PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Frank N. Butler for Plaintiff, Appellant.

      E. A. O’Sullivan, City Attorney, for Defendant, Appellee.
    Argued and submitted June 5, 1895.
    Opinion handed down June 21, 1895.
   The opinion of the court was delivered by

Watkins, J.

Alleging itself to be a corporation organized under and by virtue of a law of this State, for the purpose of erecting and operating grain elevators, warehouses, etc., for the storage of grain and other commodities, with authority to erect one or more wharves, grain and flour elevators, etc., upon property it had acquired upon the front of the Mississippi, they institute suit against the city upon the following grounds, viz.:

That subsequent to its organization the council of the city granted it permission to build a wharf equal to any then existing in the city, which was to occupy 276 feet of the river bank, and to build into the river to a sufficient distance to be in twenty feet of water at a low stage; said wharf to be built and kept in repair at the expense of the company, and under the supervision of the city surveyor.

That by the fourth section of the ordinance which granted the aforesaid permission, it was among other things provided that when the company should discontinue its operations, the said- wharf should revert to the city at a valuation tobe fixed by two disinterested parties, one to be appointed by the city and the other to be selected by the company; and in the event of a disagreement between them as to the proper valuation to be placed upon the wharf, an umpire should be appointed by one of the Civil District Courts of the parish of Orleans.

That subsequently the City Council extended the privileges-of the corporation for a period of ten years, by an ordinance adopted on the 6th of September, 1883, so as to provide that both the wharves and the mooring posts, etc., should revert to the city, at a valuation to be fixed as before indicated.

That shortly before the termination of its franchise the company gave due notice to the mayor of the city to that effect, and that it had selected and appointed its representative for the purpose of assisting in making an appraisement such as the city ordinances contemplated, and that he would be prepared to act as soon as he was advised by him that he had appointed an appraiser to act on the part of the city.

That the mayor was tardy in giving attention to the matter, and only made the selection of an appraiser several months afterward, and when appointed, the two appraisers failed to agree as to the proper valuation to be placed upon the company’s wharves, mooring posts, etc., the appraiser appointed for the city declaring that the wharf and appurtenances were of no commercial value to the city. That the court appointed an umpire, who, after a superficial examination of the wharf, made a report to the effect that on account of long service the wharf had become practically useless for commercial purposes, thus aligning his report with that of the appraiser selected by the mayor.

That- after filing a formal protest with the mayor, the company instituted this suit, praying for judgment annulling and revoking th-e report of the arbitrators, and condemning the city to pay it the sum of two thousand two hundred dollars as the value of the wharves, etc.

The defences raised in the answer are, (1) no cause of action, on the ground that there is nothing in the law or in the agreement between the parties which makes it obligatory on the city to accept or receive the reversion of the company’s wharves, etc.; (2) that under the terms of the city ordinance which the plaintiff invokes, it had contracted and .agreed that it would build for the city one thousand five hundred dollars’ worth of intersection paving, with which contract the company failed to comply altogether. On that score the city prays for judgment accordingly.

On the trial there was judgment in favor of the defendant, rejecting the plaintiff’s demands, and the latter appealed.

The written report of the umpire, at which this suit is chiefly directed, is annexed to the plaintiffs’ petition for reference; and as it is the succinct embodiment of the facts upon which defendant relies, we will state its purport, which is as follows, viz.:

That, having met the two arbitrators and heard their respective statements with reference to the valuation of the company’s wharf, etc., he accompanied them to the loo us in quo and with them made a careful examination of the wharves and mooring posts, and found that, in his judgment, “from long service and want of repair, they had become utterly useless for any commercial purpose. The piles upon which they had been erected (were), with a few exceptions, rotten ; and the cribbing (had) in many places been strengthened, when found wanting, with pieces of light timber. In fact, the wharves seem to have been kept up, in view of its reversion to the city, at the smallest expense to the company; and by want of care and repair has become of no value whatever.

“That, for the greater part, the mooring posts were of no value or use, unless taken in connection with the worthless wharf to which they are attached; and, in the reconstruction of the wharf, it will be necessary to remove them, thereby creating an expense instead of a benefit to the city,” etc.

“That the cluster-piles, the only ones which can be considered of any value, are far within the river line of the new wharf which is to be erected at that point, and (that in its construction) they, as well as the others, will have to be removed, and will therefore be of no value to the city,” etc.

That “ the lumber or material used in the construction of the wharf * * * is of no value at present, and as may be seen,” etc.

With some additional elaboration of statement which is needless to detail, he closed and signed his report.

On the part of the plaintiff the company’s expert was introduced as its principal witness, and his statement, in his own words, is that “ the wharf was in such condition that the Elevator Company could do business on it. It was not a new wharf. We found some timbers which were slightly rotten on the outside, but inside they were all sound. I found the piles in good condition. I think the wharf was worth about one half the cost of a new wharf,” etc.

One of the company’s employees, a weigher, supports the statement of the expert, in a general way. Three or four witnesses made similar statements, but their information was chiefly derived from casual observation. The secretary of the company testifies to the general good condition of the wharves, stating that after repairs had been made “ it was in perfect order.” And that when once in good order it so remains for about ten years.

On the part of the defendant, the mayor’s expert was introduced as a witness and made a statement of facts corresponding with the umpire’s report, and affirming the utter worthlessness and rottenness of the wharf,” etc. In fine his statement is that he “considered the wharf of no commercial value to the city, on account of the general condition of the lumber and the way it was put up.”

In speaking of the interview and discussion which took place between himself and the expert of the company, he stated most positively and unqualifiedly that the latter had offered him a bribe of five hundred dollars if he (the witness) would join him in making a report favorable to the company.

He repeated the statement, and said:

Q. There is no mistake about the fact that the offer was made?

A. No, sir; it was an unqualified proposition to give me five hundred dollars if I would consent to make that report.

Q. Of course you did not accept the offer?

A. No.

The testimony of the umpire was taken, and its purport is the same as his report.

The testimony of one of the wharf lessees and of the city engineer was taken, and it is of the same tenor.

In rebuttal the plaintiff introduced three witnesses, but the company’s appraiser did not take the stand or deny the damaging charge which the defendant’s appraiser made against him.

From the reasons assigned by the judge-a quo for this ruling, it appears that he rested his judgment exclusively upon the fact that the company’s expert had offered a bribe to defendant’s appraiser to induce him “ to concur in a corrupt and false appraisement.”

No doubt that this circumstance was entitled to great weight in making an estimate of that witness’ testimony, but it should not have exercised any further influence upon the decision of the plaintiffs’ case.

But upon other grounds entirely independent of the testimony of that expert, we are of opinion that the judge a quo correctly decided the case in favor of the defendant, and the chief reason for this statement is that the great preponderance of the evidence is on the side of the defence.

Judgment affirmed.

Nicholls, C. J., absent.


author: Breaux, J.

text:
    No. 11,849.
    Succession of E. R. Beeman on Application to Homologate the First Provisional Account.
    The account filed is not final.
    The account of the proceeds of the crop of 1890 was apparently correct. If not correct, and other amounts, it should be hereafter ascertained, are due, it may be charged on the final account.
    Without an order of court the executor, although an order had been issued to sell the property to pay debts,rduring the year 1891 cuitivated the place, although held under a lease (without attempting to dispose of the lease or obtaining order of court to continue it).
    He was properly charged with the rental value of the place, as fixed in the contract of lease. The admitted value of the use of the agricultural implements was properly charged to the executor. The price at which they sold by public auction must be added to his indebtedness, and not the inventoried value.
    The judgment properly charged for the use of the mules and the price; from this is deducted the small item for forage fed to the mules. The executor who fails to prove why he did not collect a twelve months’ bond is responsible for the amount of the bond. An executor who does not compel an adjudicatee to comply with his bid (without good reason) is properly charged with the amount of the bid.
    The executor can not question the correctness of his own approval of a claim against a succession, unless there was manifest error.
    Payments made by an executor without an order of court are subject to the closest scrutiny and should not be allowed unless manifestly correct.
    APPEAL from the Seventh Judicial District Court for the Parish of East Carroll. Montgomery, J.

      Joseph E. Bansdell for Plaintiff, Appellant,
    cites: 35 An. 858; 32 An. 134; 37 An. 3; 40’An. 620, 484; 39 An. 696; 38 An. 611; 33 An. 344; C. O. 3228, 1163, 1164, 1165, 1668, 1670.

      Charles S. Wyly for Opponents, Appellees,
    cites: 12 An. 539; 35 An. 915; 8 M. 135; 32 An. 133; 39 An. 696.
    Submitted on briefs June 12, 1895.
    Opinion handed down June 17, 1895.
    Opinion refusing rehearing June 29, 1895.
    Application to Homologate an Account op the Executor.
   The opinion of the court was delivered by

Breaux, J.

The executor took charge of the succession of E. R. Beeman in September, 1890. The property was movable. It was appraised at six thousand seven hundred and ninety-nine dollars and one cent, and consisted of a growing crop on the Erie plantation (of which he, the late E. R. Beeman, had a lease dating from January, 1889, to the year 1894) ; of accounts due by tenants, together with live stock and farming implements.

He also had a stock of merchandise in the plantation store.

After the executor had qualified, he carried on the plantation and the store until early in 1892, although an order was granted to sel, the property to pay debts on March 19, 1891.

He shipped the cotton of 1890 to the firm of the late E. R. Beemanl to whom the succession was indebted for advances on the crop of 1890 in the sum of one thousand eight hundred and seventy-four dollars and fifty cents.

The executor’s account was filed in August, 1892. A number of the creditors opposed the account on the grounds chiefly, that the item of six thousand three hundred and twelve dollars and eighty-five cents, “ proceeds of crop of 1890, including rents, wages, crop and accounts,” is merely the credit side of the account current of the commission merchant; that no showing is made of the number of bales, of wages, crop made, number received from sub-tenants.

They also claim that the executor is not charged with rent, -in an amount sufficient.

They itemized their claim as follows:

Rent of Brie plantation for 1891.....................................................................$2,275 03

Insurance on gin and store............................................................................ 210 00

Rent of twenty-four head of stock, $25 ........................................................... 600 00

Total................................................................................................................$3,085 00

They also seek to hold him responsible for certain items of the inventory.

. One of the opponents, Milliken, alleges that a larger amount is due him than was allowed in the judgment.

The other opponents urge similar grounds of complaint.

There were other grounds of opposition. We passed them without noting them, for the reason that they are not included in the answer of opponents to the appeal, and those not granted by the judge of the lower court in the judgment are presumedly abandoned.

The judge of the lower court, after having amended the account, rendered judgment, approving it as amended.

The amount for the crop of 1891 remained fixed, as already stated. The charges against the succession for expenses of cultivating the crop that year were stricken from the account.

From the judgment the executor prosecutes this appeal, and here prays that the judgment be amended; first, by striking out of his account the items of two thousand three hundred and eighty-three dollars and twenty-three cents charged against him for proceeds of crop of 1891, and that instead he be charged with the sum of one thousand six hundred and twenty-five dollars, rental value of Erie in 1891, instead of two thousand four hundred and eighty-five dollars, as fixed by the court.

Second. By striking out the item of five hundred and seventy-five dollars, charged to him by the court for rent of mules, and charging him in lieu with the inventoried value of the mules, or in the alternative, by reducing that sum to three hundred and thirty dollars.

Third. By withholding final judgment against him for the price of personal property sold on twelve months’ credit and proceeds of property unlawfully withheld by adjudicatees.

Fourth. By rejecting the claim of the opponent Milliken for five hundred and thirty-five dollars and forty-eight cents for rent, at eight per cent, from November 1, 1889, or in the alternative, by reducing it to five hundred and twenty-nine dollars, without interest.

Fifth. By setting aside that portion of the judgment which gives to this opponent a vendor’s privilege on the proceeds of sale of three mules, to secure the payment of three notes, aggregating two hundred and fifty-five dollars and fifty cents in principal.

Sixth. By deducting from the charges on his account (executor’s) the sum of one hundred and thirty-five dollars for the price of a mule entered in error.

Seventh. Relates to farming implements and a lot of hay of little value.

With reference to the first item of six thousand three hundred and twelve dollars and eighty-five cents, proceeds of crop of 1890, the executor supports it by testimony that he shipped the crop to the usual market, and that it was sold at its value by the commission merchant who had made the advances. It was properly charged against the executor, and has every appearance of being correct.

The opponents urge that it makes no showing of the yield of the wages, crop of fifty-seven acres and the price received therefor; no showing as to the amounts paid by the ihdividual tenants for land, rent, hire of mules, wagons and implements.

The account is not a final account of administration. Gross errors and incorrect entries can be corrected in the final settlement. Nothing of the kind appears at this time, and we therefore agree with the District Oourt in approving that item.

The rent of Erie plantation for 1891 is the next ground of opposition. We have already stated that the executor contends it should be much less.

The judge of the lower court fixed it a total two thousand four hundred and eighty-five dollars.

This was the consideration (including insurance) of the lease to which we have before referred.

The executor, .without judicial authority, assumed the responsibility of operating the leased plantation during the year 1891. He must be charged with the amount at which the place was leased.

The executor sought to prove by the expert testimony of witnesses that the rental value of the place was considerably less.

The testimony was given several years after the date of the contract of lease. The lease suggests more certainty as to value than mere estimates. Tutorship of the Minors Hollingsworth, 45 An. 134, 142.

The executor could have avoided the payment of this amount by complying with the court’s order and selling the property, if there was no possibility of obtaining legal sanction to operate the place for account of the succession.

The opponents, as another ground of opposition to the account, contend that the executor should be charged with the amount of the open accounts carried in the inventory and other items thereon aggregating seven thousand and sixteen dollars and seventy-nine cents.

This is more than the total of property inventoried. The inventory shows the following property appraised as follows:

Merchandise in store...................................................................................... $1,599 05

Farming implements..................................................................................... 372 90

Live stock ........................................................•.................................................... 1,940 00

Open accounts.................................................................................................. 1,865 81

Wages crop.................................................................................................... 840 00

Bagging and ties......................................................................................... 97 25

Cash on hand ................................................................................................ 84 00

Total..............................................................................................................$6,799 01

In the judgment of the lower court these different amounts are charged, save those that were properly used and accounted for by the executor.

The charges against the succession for expenses of cultivating the crop of 1891 was stricken from the account. In J. S. Milliken’s answer to the appeal he claims a balance of two hundred and sixty-nine dollars and thirty-four cents, with interest due on rent of 1892.

The judge of the District Court held that this claim for rent was extinguished by rents collected by this creditor from the tenants that year, rents of lands cultivated by him, and other claims due the succession upon which he realized. The difference is not considerable and the evidence would not support an amendment allowing the balance.

The opponents claim that the executor should be charged with the difference between the price at which he bought cotton in 1890 from the tenants in settling with them and the price for which it sold in the market. They invoke the correct principle that an executor should not by his contract involve the succession in debts.

. But the rule does not apply here for the reason that opponents admit that where rents are payable in cotton he had authority to receive payment in cotton.

The objection is that he could not accept it at a loss in settlement of money, rents and money accounts.

In the absence of proof, we will not assume that there was negligence or bad faith in these transactions, which resulted in the loss of small amounts.

The fluctuations of the cotton market are such at times that the most intelligent and careful incur losses.

The executor and appellant urges a number of grounds of error in the judgment from which he appeals.

In deciding questions raised by the opposition we passed upon the executor’s first ground of objection to the judgment, and held that the rent for 1891 was correctly fixed by the court.

The second ground urged by the executor is to the item of five hundred and seventy-five dollars, allowed by the District Court for mule rent in 1891.

He claims that he should be charged with the inventoried value of the mules and not with rent.

They sold for one thousand seven hundred and fifty-eight dollars, by public auction, for account of the succession.

The rent earned for their work on the day of sale at the rate it is customary to charge tenants was five hundred and seventy-five dollars. It was the customary price for mules rented to tenants on plantations in 1891.

We do not feel justified to amend the judgment and substitute the inventoried value of the mules to the price for which they sold and their rent value while in the executor’s service prior to the sale.

The third of the executor’s grounds against the correctness of the judgment is that he is charged with the proceeds of property sold on twelve months’ credit, and proceeds of purchase price of property unlawfully held by several adjudicatees, at the sale, until the decision on the final account.

The sale was made in August, 1892. The twelve months’ bond matured long since, and should have been collected.

In default of collection, and in the absence of any evidence of an attempt to collect, it was proper to charge the executor with the amount of these bonds. The settlement of successions should not be indefinitely postponed. To prevent objectionable delays, claims due should be collected, or the executor prepared to prove, when necessary, that he is in no respect responsible for the failure to collect.

With reference to the amounts of bids unlawfully withheld by certain adjudicatees.

The executor has his remedy and can not shield himself from settlement and the payment of these amounts by a mere assertion that certain bidders did not choose to comply with their bids. The defence is groundless. Acts of indulgence cease to be commendable when one is acting in a representative capacity.

The executor also objects to the amount allowed J. S. Milliken in the judgment on the groand that it has been paid in full, and that his endorsed approval in the claim was made by him in error.

This objection was made the first time during the trial, when the claim was offered in evidence. It was not preceded by any amendment of the judgment, or the least suggestion that the claim was approved in error.

We have examined voucher numbered one hundred and eight, for five hundred and fifty-four dollars and eighty- six cents. With the executor’s approval, it has every appearance of being correct, and, in any event, if there was error in the approval, it should have been pleaded before urging an objection on the ground of error.

There is a slight difference in the addition in matter of this claim.

The difference amounts to five dollars and sixty-two cents.- Unexplained, we think the rule cíe minimis applies.

The executor urges that the judgment charges him with the full inventoried value of the farming implements, instead of what they sold for, while it charged him with what the mules sold for, plus a rental for the year 1891,. and for the amount brought by the merchandise at the sale.

In other words he complains that the implements are worth appraised value; mules are worth rental for one year and selling price; merchandise is worth selling price, and that each mode is the most unfavorable to the executor.

As it is not in proof that these implements had deteriorated in value; that they were not in good condition, owing to their use by the executor in 1891, or that there were any missing, our decree will amend the judgment of homologation by deducting the difference between the inventoried value and the sale.

Another ground of objection of the executor is that the judgment charges him with a sum of one hundred and thirty-five dollars, Which, he contends, should not be charged.

It is carried in his account as an amount collected in cash.

He sought to amend his account by alleging that it was error, that the amount had been collected in cotton, and that the cotton was sold for account of the succession, with which he had already charged himself as executor, as part of the item of six thousand three hundred and twelve dollars and eighty-five cents.

The testimony upon that point has not satisfied us of the court’s error.

The last utterance of the witness is:

“ I collected one hundred and thirty-five dollars for one mule, which is charged to me in my account.”

. It may be that this should be read with another answer, that it was collected in cotton, and it would be thus read if the item were supported by the books kept for the executor.

The executor admits that the farming implements were worth the sum of fifty dollars. The amount is due, the value being admitted, and rent value of other property having been charged for personal use by the. executor in 1891.

A small item of hay feed to the mules will be deducted, viz.: thirty-five dollars. There was no error in leaving the question of commission to be determined in homologation of the final account. The executor, upon final and satisfactory settlement, will be entitled to his commission.

It is therefore ordered, adjudged and decreed that the following item of the judgment be amended: “ And also with the inventoried value of the farming implements, to-wit: the sum of three hundred and seventy-two dollars and ninety cents,” by reducing that amount (1) to one hundred and eighty-two dollars (the price of these implements at public sale). The account is further amended by deducting (2) thirty-five dollars from that item: value of hay included with articles of agricultural implements in the inventory, leaving on that item and of the sum first mentioned one hundred and fifty-five dollars and ninety cents.

The judgment is further amended by adding fifty dollars to the debit side of the executor’s account, and increasing thereby the amount of his indebtedness on the implements by the sum of fifty dollars, making total thereon two hundred and five dollars and ninety cents.

As amended, the account appealed from is affirmed at appellee’s costs.

Nicholls, O. J., absent.

On Application nor a Rehearing.

The executor is charged with two thousand four hundred and eighty-five dollars andwfive hundred and seventy-five dollars for land and mule rent for the year 1891, of which charge he complains.

From his charges against the succession are deducted the expenses of cultivating the crop that year.

Owing to motions to strike out and amendments, and the issues as presented, we understand that it was not the intention to hold the executor bound for the proceeds of the crop of 1891, and at the same time charge him- for land and mule rent.

The former.......................................................................................................$2,485

The latter................................................................................................................. 575

We would at once set this matter at rest and order that the amount of two thousand three hundred and eighty-three dollars and twenty-three cents be not charged, being the proceeds of the crop of 1891. The opponents not having been heard, we prefer to remit the question to be determined on the next account. The opponents will then have the opportunity of tendering such defence as they may have against deducting the proceeds of the crop of 1891.

With reference to the twelve months’ bond the executor applies to postpone settlement until his next account.

These bonds bear date August, 1892. The evidence in the case was taken in March, 1895.

We do not understand that they had been paid at that date. The delay in making the collection not having been explained, we affirmed the judgment in this respect.

The executor complains of the interest of eight per cent, allowed on an amount of five hundred and thirty-five dollars and forty-eight cents from the first day of November, 1889, on the ground that it can not be considered as conventional; no interest having been stipulated.

If this be the fact interest is due at five per cent.

Another objection is interposed by the executor.

A vendor’s privilege is allowed on the proceeds of three mules to secure the payment of two hundred and twenty-five dollars.

It is therefore ordered, adjudged and decreed that our prior decree remain unchanged, save and except as to the item of two thousand three hundred and eighty-three dollars and twenty-three cents; vendor’s privilege allowed on the proceeds of three mules, viz., two hundred and twenty-five dollars, and interest on five hundred and thirty-five dollars and forty-eight cents. As to these three items, the first, viz., two thousand three hundred and eighty-three dollars and twenty-three cents is to be deducted; the vendor’s privilege disallowed for the recovery of two hundred and twenty-five dollars (which is then to be treated as an ordinary claim), and interest reduced to five per cent, from date of acknowledgment, unless opponents established error as to these items.

The right of the executor to sustain these reductions when the next account will be filed, and the right of the opponents to question correctness and legality of these items, is also reserved.

The judgment of the District Oourt is amended so as to conform with this reservation.

Our original decree as amended bjr this decree is affirmed.

Rehearing refused.


text:
    No. 11,769.
    Executors of D. R. Carroll vs. Thomas W. Castleman and Wife.
    Tlie plaintiffs, executors, seek to collect a judgment obtained by the testator when be was the head and master of the community.
    After the death of the wife and the dissolution of the community an inventory was made and ho became the administrator of her succession.
    Subsequently he sold his interest in the judgment.
    The two successions were solvent and the heirs of age.
    There is no question of legitime.

    The executors seek to enforce a judgment in its entirety, although the head and master of the community, after the dissolution of the community, transferred his interest.
    The executors attack the transfer.
    Under the circumstances of the case it was not the duty of the executors to sue to change the character of the transfer; from a transfer of the judgment, to the payment of the judgment by the judgment debtor.
    If there are rights as to that interest it must be asserted by the heirs.
    With reference to the remaining interest undisposed of by the husband and which by acceptance of the community by the heirs in their property—
    It was m possession of the executors, and it was their duty to collect the remaining interest.
    It would serve no useful purpose to stop the execution of the judgment and order that it be sold by Imitation to effect a partition.
    A PPEAL from the Civil District Oourt for the Parish of Orleans. Monroe, J.

      Clegg & Thorpe for Plaintiffs, Appellants.

      Carroll & Carroll for Defendants, Appellees.
    Argued and submitted June 4, 1895.
    Opinion handed down June 21, 1895.
    Rehearing refused June 29, 1895.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs sue to execute a judgment rendered in favor of D. R. Oarroll, against the defendant Oastleman, during the existence of the community, with his wife, who died some time prior to the death of D. R. Oarroll, her husband.

The latter had qualified as administrator of his wife’s succession in Division “A” of the Oivil District Oourt. There was a judgment putting her heirs in possession of the property.

Subsequently, with the consent of all parties concerned, this judgment was annulled, and the succession declared open.

Nearly all the property on the inventory of the succession of D. R. Oarroll had been previously described in the inventory of the succession of his wife.

The succession of D. R. Oarroll was opened in Division “E,” and •his executors qualified.

They subsequently petitioned the court in which the succession of Mrs. Oarroll had been opened to transfer the proceedings in her succession, and consolidate them with the proceedings of the husband’s succession.

The order prayed for was granted by the judge of Division “A.”

No action was taken in regard to the consolidation (applied for by the executors) by the judge of Division “E.”

With reference to the judgment the plaintiffs seek to execute, they allege that the heirs of Mrs. Oarroll have accepted the succession with benefit.of inventory; that the judgment was in his possession and under his administration at the date of his death, and that, as his executors, they are the holders and owners of the judgment, duly and timely recorded. They urge that defendant’s wife, who is one of the heirs of Mr. and Mrs. D. R. Oarroll, never bought the interest of the former (D. R. Carroll) in the judgment, but that if he parted with his interest he sold it to the husband, Thos. W. Castle-man, and that to the extent of the interest (sold on the face of the papers) the judgment was paid.

That the judgment operates a judicial mortgage on the property of the debtor, who, it is alleged, is insolvent, and that property in the name of Mrs. Castleman was really the property of her husband, and subject to their judicial mortgage.

The defendants interposed an exception to plaintiffs’ petition upon a number of grounds. The first is that the executors are without authority to stand in judgment. That the late D. R. Carroll had parted with his interest in the judgment.

The facts are, as disclosed by the record, the late D. R. Carroll sold all his interest, as alleged, in the judgment to his daughter, Mrs. Castleman.

That subsequently the court recognized the transfer and decreed that she was subrogated to her father’s interest in the judgment against her husband.

The plaintiffs caused a writ of ft. fa. to issue on the judgment thus transferred.

The second ground of exception is that the property has passed out of the succession of D'. R. Carroll, and that it is in the possession of the heirs, the latter having filed proceedings for a partition of the property of the estate.

The admitted facts upon this point are, that there is a suit pending for a partition of the property of the two successions; that it was filed several months prior to the present proceeding, and that no order has been rendered, save one authorizing the sale of real estate.

The ground is that the judgment in question is not in the possession of plaintiffs, and that Mrs. Castleman, owner, of the interest of the late D. R. Carroll, has sued for a partition of the judgment.

The facts are that plaintiff’s suit was brought in January, and that this action for a partition of the judgment was instituted some time after.

It is also admitted that the successions are solvent, and that the succession of Mrs. Carroll owes no debts.

Finally it is excepted that the persons claiming interest are not before the court, and finally, that plaintiffs having caused a writ of fieri facias to issue in the proceedings which recognized Mrs. Castle-man as transferee, plaintiffs are estopped from claiming that she is not the transferee.

The first question for‘decision- is whether the executors of a will can maintain an action to annul a sale in so far as relates to the one the vendor declared, in the deed, was his vendee, i. e., that the transfer, alleged by the defendant, to the daughter was in reality a payment by the son-in-law, the judgment debtor.

There are no creditors and no absent heirs, nor is there any issue regarding the disposable portion.

The executors are, therefore, entrusted with the duty of executing the will of the testator. Upon the face of the papers, the interest of the judgment creditor had passed to his vendee some time prior to his death. In so far as relates to that interest it is not incumbent upon the executors, in the presence of the heirs of age, to institute an action to set aside the sale or change its terms and conditions.

If the prayer of plaintiff’s petition were granted, it would not have the effect of restoring the interest of the late D. E. Carroll to his succession.

If any advantage is to be gained by changing the character of the act in question from a transfer of the judgment to Mrs. Castleman to a transfer to Thomas W. Castleman, it is not made manifest by the petition.

In so far as relates to the executors, there is a negative to any possible' advantage to the succession, from the fact that they caused a fi. fa. to issue from the judgment, after the recognition by an order of court of the transfer of the interest of D. E. Carroll.

In Woodward vs. Thomas et al., 38 An. 238, 243, the jurisprudence upon this point was reviewed. The court said: “This implies the right and duty to recover the property, as much as to collect the debts of the succession. Otherwise he can not 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 if he 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 he should give way to the heirs, who are the only persons interested, and may assert their own rights.”

Under the circumstances of this case, we think the executors had no right to stand in judgment, and that to the extent of the interest of D. R. Oarroll the suit was properly dismissed.

4 This brings us to a consideration of the interest in the judgment which the late Mr. Oarroll' did not transfer, i. e., the interest in the community to which these heirs have a right by inheritance from their mother, Mrs. D. R. Oarroll.

This interest in the judgment must remain, under the law, in the succession, until the heirs have accepted and have possession of the assets.

It was in the possession of D. R. Oarroll, administrator, at the time of his death, and the executors, with seizin, have succeeded to his possession.

Great stress is laid by the defendants upon the fact that one of the heirs sues for a partition, and that the heirs have answered, and do not particularly object to a partition. There are heirs who have filed no answers; others who consent conditionally to a partition, and deny that the plaintiffs who sue for a partition have possession.

The fact remains that no application was made for a partition of the judgment in controversy, prior to the institution of plaintiffs’ suit.

There was a suit brought for a partition of that judgment, entered subsequent. It was clearly irrelevant and inadmissible. Moreover, it could not bind the defendants in partition who have filed no appearance.

The executors not having been discharged, and being in possession of the judgment, it is their duty to enforce the collection of the judgment.

Even regarding promissory notes this court held, in Holliday vs. Holliday et al., 38 An. 175, 176, that the executor should collect them, and rejected a demand for a partition in kind or by sale.

In Rochereau vs. Maignan, 32 An. 45, it was held that where several heirs of a succession were owners in indivisión of a judgment, partition by sale will not be ordered on the application of one of the owners, opposed by the others, when no effort has been made to execute the judgment.

Here an effort is being made to execute the judgment for the purpose of dividing the amount which may be collected, a more expeditious and less expensive method of settling the succession in so far as relates to this judgment.

Not long since this court said: “Not only is it entirely proper and right that the succession of the husband should embrace that of his deceased partner in community, but two distinct and separate administrations are unnecessary and would occasion increased expense and litigación.?’ Succession of Lamm, 40 An. 315.

That authority is particularly applicable here. It is true that the survivor in community had parted with his interest. But he could not transfer the remainder due on the judgment to which the heirs had a right by inheritance. It remained none the less in his possession and subsequently in that of his executors.

“II va sans dire que le mari peut pas renoncer a la communauté. C’est lui qui administre et qui contráete les dettes dont la communauté se trouve chargée; concoit-on qu’il s’aifranchisse du lien obligations qu’il a eonsenties en repudiant ce qu’il a fait lui-meme? On comprend que la femme est etrangere aux dettes du mari, tandis que le mari en est le debiteur personnel.” Laurent, Vol. 22, p. 382.

The husband being indebted (le debiteur personnel), in so far as relates to this community, a fortiori it was proper for the executor to collect the remainder due on a judgment in possession of the succession in order to turn it over to the heirs to be divided.

The husband, debtor of the remaining interest in the community, might have taken conservatory steps in matter of the judgment.

The executors who were in possession were also authorized to take such steps. The opposition of one of the heirs to the collection of the judgment is not sustained when considered in light of authority.

It is ordered, adjudged and decreed that the judgment appealed from be maintained as to the interest of D. It. Oarroll in the judgment obtained by him against Thomas W. Oastleman, and the action is dismissed as to that interest.

It is ordered and decreed that the judgment is annulled, avoided and reversed in so far as it dismissed plaintiff’s action to recover that part of the judgment not transferred by D. R. Oarroll to Mrs. Thomas W. Oastleman, and that executors have authority to continue the proceeding for the collection of the interest last mentioned.

The case is remanded for trial contradictorily between plaintiffs and defendants as relates to the interest in the judgment in question not transferred by D. R. Oarroll.

As amended the judgment is affirmed at appellee’s costs.

Nicholls, C. J., absent.


text:
    No. 11,844.
    J. Ricou vs. A. Hart.
    The plaintiff sued to recover rent claimed by him.
    The remedy to eject lessees is summary.
    A rule of court designating certain days to try civil jury cases does not necessarily exclude all possibility of hearing a summary case, particularly if it does no* interfere with the trial of the civil jury eases, and the defendant’s cause is not thereby prejudiced by being compelled to go into trial unprepared.
    The delay to be expressed in the citation to vacate leased premises (or the notice) consists of three days, to be counted from the date the citation or notice has been served.
    The lessee is bound to pay the rent at the terms agreed on.
    The want or failure of the plaintiff to put in mora is a ground of exception.
    The taxes (part consideration of the lease) not having been paid, and the time for the payment, without penalty having passed, the lessee, from that fact, was in default.
    APPEAL from the First Judicial Court for the Parish of Oaddo. Land, J.

      Alexander & Blanchard for Plaintiff, Appellee.

      A. LI. Leonard and F. O. Thatcher for Defendant, Appellant.
    Argued and submitted June 10, 1895.
    Opinion handed down June 21, 1895.
   The opinion of the court was delivered by

Breaux, J.

This is an action to eject the lessee from the property leased to him by the plaintiff.

The latter leased the Hart Island' plantation to the former on the 2d day of February, 1894, for the term of fifteen years.

The consideration of the lease was the sum of twenty-seven hundred dollars, payable on the 1st day of September of each year, and the payment of the taxes on the property each year. The taxes for 1894 amounted to six hundred and twenty-eight dollars.

The defendant testified that he was informed by the sheriff that for a week after January 1 it is not customary to enforce penalties in the collection of taxes.

In September, 1894, the lessee having failed to pay anything, the lessor transferred his claim for the money sent (the rent for the first year’s lease) to W. B. Ogilvie, and subrogated the transferee to his right as lessor.

Ogilvie, to whom the defendant owed a large amount for advances on his crop, in addition to the rent transferred to him, brought suit against the defendant, and had his crops, mules, farming' implements and all his other property on the plantation under writs of sequestration and provisional seizure, taken possession of by the sheriff. The property was sold under an order of court, save the mules. They (the mules) were bonded and moved from the' place by the surety on the bond.

This left the defendant without means to operate the plantation. He was attempting at the time of the suit to effect a sub-lease. The lessee not having paid the taxes on the 31st day of December, 1895, they were subsequently paid by the lessor.

On the 25th day of January, 1895, the plaintiff brought suit and alleged that his lessee had violated the lease and failed to comply with the terms of his contract, not having paid the rent.

The defendant excepted to the order of the court requiring him to answer within three days from service of the order to vacate and of the citation.

He claimed ten days, as in ordinary eases.

The defendant urges that the three days’ notice of the statute has reference to the setting of the case for trial.

The Act 96 of 1888, amending R. S. 2155 and Act 96 of 1894, provides for fifteen days’ notice to the lessee to remove.

At the end of fifteen days suit to eject maybe brought. The delay for “ordinary proceedings ” of ten days manifestly does not apply.

The Revised Statutes 2166 provides for trial after three days’ notice.

The provisions of the statutes and the code of procedure was so interpreted by Matt’s case, 37 An. 843; Citizens Bank case, 38 An. 500, and sustained the legality of the notice. The last act upon the subject (Act 96 of 1894), was adopted some time after the decision in Godchaux vs. Bauman, 44 An. 253, in which this court held that the three days’ notice prior to judgment was legal and proper, and that a delay of ten days was not required. The Legislature did not deem it proper to extend the time to answer. That portion of the law regarding delay as interpreted by this court remained unamended.

On the day of trial further time to answer was applied for and granted.

The defendant also excepted to a trial at the January term of the court, for the reason that, under the rules of the court, only jury cases could be tried at the time that the case was tried.

The rules of the court are that no civil cases, except jury cases, can be tried during certain designated days.

The act of 1855, and subsequent statutes, make this a very summary proceeding, and require it to be tried by preference.

Oivil remedies are ordinary, executory and summary.

In the cases cited supra, it was held that the remedy to eject lessees is summary. In the last, the Citizens Bank case, 38 An. 500, it was decided that a prayer for citation did not have the legal effect of converting the process from the summary to the ordinary.

Under Oode of Practice, 756, summary cases are decided on days fixed for their trial without delay, and conformable to such rules as the court may adopt.

The court a qua had no rule fixing days for the trial of summary cases. Although rules of court have the force of law, a rule excluding ordinary cases from trial during certain days does not necessarily apply to a summary case.

The contest is not for trial between a civil jury case and a summary case.

We understand that the court found time to do justice to both, without prejudice to any of defendant’s rights.

The lessee, by the seizure aud sale to pay the Ogilvie claim, was left without means to cultivate the place and pay the taxes.

It is true that the defendant had offered to sub- lease to a third person. It was a mere attempt.

Nothing definite had been concluded. The lessor’s contract with the defendant did not leave the payment of the rent dependent upon such contingencies. The statute applying to “ landlord and tenant ’ ’ gives to the lessor the right, upon the termination of the lease, either by limitation or non-payment of the rent when due, or any other breach of the lease, to institute proceedings to eject the lessee.

The defendant had failed to pay the rent under circumstances which justified the plaintiff in seeking to resume possession of his property.

The taxes were due on the first of January. The days of grace given by sheriffs, after the first of that month, to pay taxes, was a personal favor and an act of kindness and consideration, which were not part of the contract.

The defendant urges that the contract of lease was commutative; that if there was violation it was passive, and he was not placed in mora. •

In his answer he alleges that plaintiff paid the taxes without having previously requested him to pay them. At this point of the case the testimony of the plaintiff and that of the defendant are somewhat conflicting.

The former supports the theory of his case, that he made all needful demand of payment; the latter denies that any demand was made.

The judge of the court below has decided that there was a sufficient placing in default. We have no reason to declare his decision incorrect and unsustained by the weight of the testimony.

Under the laws relative to landlord and tenant, prior to recent amendments, this court held:

“The judge of the court below has taken the correct view of the facts of the case, and we concur with him that in a case like this, it is not necessary to resort to a direct action to annul a lease, if there be one, the law having declared that the immediate consequence of the failure of the tenant to pay the rent when it becomes due is to vest in the landlord the right of expulsion.’ ” Van Renselaer vs. Holbrook, 1 An. 180.

The right to thus proceed is not restricted but enlarged by amendments adopted since the date of that decision.

We will not be understood as holding that a placing in mora, or its equivalent, is not necessary. Moreover, the plea of want of default was not made by the defendants. This case is exceptional. The taxes assumed as part of the consideration of the lease were due in September.

On the 31st day of December the tax debtor who has not paid his taxes becomes a delinquent.

The law provides “from the day the tax roll is filed in the mortgage office it shall be a lien on the property.” Sec. 33 of Revenue Act of 1888.

There was a penalty due from the 31st day of December.

Without notice or demand the tax-payer is in default from that date.

He owes the penalty, and the taxes are secured by mortgage on his property.

He places himself completely in mora by not paying the tax. The rights of the State in matter of the security and collection of taxes are well defined.

The plaintiff did not, as defendant argues, become his negotiorum gestor as to these taxes, after he had paid them. He was subrogated to the rights of the State and parish.

The syllabus in Succession of Will, 15 An. 381, correctly sets forth the principle announced in that case:

“ When by the contract of lease the lessee undertakes to pay the taxes to be thereafter assessed on the property leased, if he fails to do so, the lessor having an interest as owner in discharging the debt, would, upon paying the same, become legally subrogated to the rights of the State or city against such lessee. ’ ’

In the case of Beltran vs. Villere, 14 Southern Reporter, 506, 510, Opinion Book No. 61, p. 824, this court held that it was the duty of the mortgagor to notify his mortgagee of his inability to pay the taxes.

The principle applied here answers the objection of the defendant in so far as relates to default.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed at appellant’s cost.

Nicholls, O. J., absent.