text:
    No. 8486.
    The State of Louisiana vs. Amelia Kimble.
    When stolen property is found in the possession of the person charged with larceny, it is for the accused to show how he came by said property, and it is for the jury to decido whether his account or explanation of such a fact is reasonable or sufficient, or not. Such account is not to be taken for true, simply because the prosecution docs not rebut it.
    APPEAL from the Fourth Judicial District Court, Parish of Caldwell. Bridger, J.

      Bolt. J. Oaldmll. for Defendant and Appellant:
    Only one question of law is presented.
    “ One found in possession of stolen property, and who gives a reasonable account of how he came by it, throws the burden of proof on the State to show that the account is false.’5 3 Greenleaf, Section 32; 2 Bishop Crim. Procedure, Section 746.
    Defendant was found guilty, at the January term, 1882, of the above court, of the larceny of a chair worth seventy-five cents, and sentenced to one year’s imprisonment at hard labor*
    Greenleaf and Bishop refer to Common Law authority, and their doctrine seems to be good law. Archbold and Wharton only say, that recent possession of stolen property raises a presumption of guilt — that is correct doctrine. That does not meet the case.
    The District Judge says: “The presumption, that newly stolen goods found in the possession of dofeudant, were stolen by him, may be overcome by evidence explaining the possession 5 any such evidence legitimately tending to explain the possession should be received and considered.”
    He throws the burden of proof on defendant.
    Bishop says that the prisoner’s “explanation may be produced in evidence to the jury in his behalf, and if it is not shown by the prosecution to he false, its weight in the scale for him will be very considerable. * ** * Such an explanation, especially if given instantly upon the property being discovered, and the accusation brought home to the prisoner’s knowledge, is deemed a part of the res gestee.” Same volume.
    Bishop further says, that this ‘ ‘ is the doctrine of reason, and not apparently contradicted by any authorities requiring notice.”
    Defendant respectfully submits that the Judge ought to have charged as requested — it is the Common Law rule The question presented is one relating to evidence and to the burden of proof. Greenleaf has always been i egarded as the best authority.
    Besides all this, every presumption is in favor of defendant.
    J". 0. Egaii) Attorney General, for tlie State, Appellee :
    1. The following is not a correct principle of law, and should not, therefore, he given to the jury: “The general rule is, that where a man in whose possession stolen property is found, gives a reasonable account of how he came by it, it is incumbent on the prosecution to show that the account is false ” Bishop on Crim. Pro., Sec. 746, with note.
    2. The following, taken together with the rest of the charge, properly lays down the law of evidence in a case of larceny: “ Where the stolen goods, immediately after the theft, are found in the possession of defendant, the presumption is that he stole them; and if he give a reasonable account of how he came by them, the prosecution is not bound to show such accountto he false. Possession of stolen propeity is not of itself sufficient to warrant a conviction. It is only a circumstance to be considered with other evidence. The presumption that newly stolon goods found in the possession of defendant wore stolen by him may he overcome by evidence explaining the possession. Any such evidence legitimately tending to explain the possession should be received and considered.
    3. “It may be laid down generally, that whenever the property of one man, which has been taken from him without his knowledge or consent, is found upon another, it is incumbent ■ on that other to prove how he came by it; otherwise the presumption is, that he obtained itfeloniously. This, like every other presumption, is strengthened, weakened or rebutted by concomitant circumstances, too numerous in the nature of the thiug to he detailed.” Roscoe's Criminal Evidence, 5 Am. Ed., p. 18 ; lb. p. 643 ; Ciiminal Law Magazine, Yol. I. p. 11; Waterman's XL S. Crim. Digest, Sec. 392, p. 406; Arehbold's Or. Pr. and PL, 7t-h Ed., Vol. 2, pp. 397, et setj.; Wharton's Am. Crim. Law, 4th Ed., Secs. 728 and 730.
   The opinion of the Court was delivered by

Bermudez, C. J.

The prisoner was prosecuted for larceny, tried,' convicted and sentenced to twelve months at hard labor in the penitentiary.

It is sought on appeal to have the judgment set aside, on the ground that the District Judge refused to charge the jury that “the general rule is that where a man in whose possession stolen property is found, gives a reasonable account of bow he came by it, it is incumbent on the prosecution to show that his account is false.”

The rule is recognized by Greenleaf, but qualified by Bisliop, who adds : “ But if the account given by the prisoner be unreasonable or improbable on the face of it, the onus of proving its truth lies on him. Suppose, for instance, a person were to charge me with stealing this watch, and I were to say that I bought it from a particular tradesman whom I name; that is aprima fade reasonable account, and I ought not to be convicted of felony, unless it is shown that the account is a false one.” Bishop Crim. Proc. Sec. 740, N. 4; Reg vs. Crowhurst, 1 Car. and L. 370; see also Waterman Crim. Dig. Sec. 392, p. 406.

The Judge charged the jury that where the stolen goods, immediately after the theft, are found in the possession of the defendant, the presumption is that he has stolen them, and if he gives a reasonable account of how he came by them, the prosecution is not bound to show such account to be false. Possession of stolen property is not of itself sufficient to warrant a conviction, it is only the circumstance to be considered with the evidence. The presumption that newly stolen goods found in the possession of defendant were stolen by him, may be overcome by evidence explaining the possession. Any such evidence legitimately tending to explain such possession, should be received.”

The court did not err in refusing the charge asked, and 'in giving that which it did. The question of reasonableness of the account or explanation given by the accused, is a matter for the consideration of the jury. If the account is justified by the accused, and is considered reasonable by the jury, and the State has not disproved it, or if it raises a reasonable doubt, it is the duty of the jury to acquit; while if the account is unreasonable or improbable on its face, or if the accused does not verify his explanation, the jury should find against him. Archbold Or. Pr. and Pl. 7th Ed. Vol. II, p. 397; Wharton Am. Crim. L. 4th Ed. Secs. 728, 730; Roscoe’s Crim. Ev. 5th Am. Ed. pp. 18, 048; Crim. Law Mag. V. I, p. 11.

We have no opinion to express touching the extent of the punishment inflicted. The District Judge could have sentenced the accused front one day to two years at hard labor. He condemned the prisoner to twelve months in the penitentiary.

Judgment affirmed.


source: Caselaw Access Project

author: Toed, J. Bermudez, C. J.

license: Public Domain

text:
    No. 8381.
    The State of Louisiana vs. Mary J. Barnes.
    Unskilful treatment of the deceased is not a ground for acquittal of the accused, in a case of murder» when the wounds have been inflicted with a murderous intent.
    The Judge is not absolutely bound by the answer of the juior on his voir dire, that he has, or has not formed an opinion, when such answer ia contr. dieted by the facts or circumstances of the case.
    APPEAL from tlie Sixth Judicial District Court, Parish of West Carroll. Brigham, J.

      J. C. JBgan, Attorney General, for tlie State, Appellee :
    1. The refusal of the Court to charge as requested by counsel for accused is correct when such charge contains an opinion of the effect of the evidence. 12 A. 195; 22 A. 43.
    2. Unskilful treatment is not a ground for acquittal of accused when wounds have been inflicted with a murderous intent. 12 A. 274; Waterman’s U. S. Grim. Digest, Secs. 104, 105, 106 and 107, p. 264.
    3. Specific acts of violence are not admissible in evidence to prove the bad character of deceased. 43 Ga. 88; 56 N. Y. 642; 16 A. 385.
    4. The Judge before whom the examination of a juror on Ms x>oir dire is held, is the most competent to pass upon his competency, and said judgment will not be disturbed unless there has been some error of law made therein to the detriment of the accused.
    5. The citing of a parallel case, by the court a qua, to explain the law to the jury, is not a discussion of the evidence, either directly or inferentially, and therefore not a good objection.
    Tlie Defendant and Appellant unrepresented.
   The opinion of tlie Court was delivered by

Toed, J.

The defendaut was indicted for the murder of Mike Barnes, and convicted of manslaughter, and sentenced to five years’ imprisonment in the penitentiary, and from this sentence has appealed.

There is no assignment of errors filed in this Court. No appearance by counsel, either by brief or oral argument. In tlie absence of such, we do not deem it necessary to discuss every point raised- by the bills of exceptions found in the record, but after thoroughly examining the record, shall confine our attention to such questions only as we deem material to the determination of the case.

The only ones deserving consideration relate, first, to the refusal of tlie Judge to charge the jury "that, if they believed from the evidence that tlie deceased could have survived the blows inflicted, if he had received proper medical treatment, this creates a reasonable doubt and tlie jury must acquit,”

The Judge’s refusal to so charge was proper. In the first place, to have given this charge in the words quoted, would have involved the statement of the Judge that blows had been inflicted upon the deceased, which would have been unwarrantable comment on the evidence touching' a very material issue, and besides, would have charged, by implication, that the deceased had not received proper medical treatment. Bnt apart from this, it was a correct enunciation of the law on the subject.

In the case of tho State vs. Scott, 12 A. 274, tho Judge was asked to charge the jury: If the wound was not necessarily mortal, but by ill treatment became so, they will find the defendant not guilty.” It was held that Ms refusal to.so charge was proper. And in so ruling, the Court used this language: “ If a person dies of a wound inflicted with a murderous intent, whose life might have been saved by the skill of a surgeon, whom it was impossible to procure, the crime is none the less murder. The true point is, did the party die of the wound inflicted by the accused? If he did, the fact that he had no surgeon, or an unskilful one, or a nurse whose ill appliances may have aggravated the original hurt, cannot mitigate the crime of the person whose malice caused the death.” See also Com. vs. McPike, 3 Cush. 181; McAlister vs. State, 17 Ala. 434; Com. vs. Costley, 118 Mass. 1; State vs. Maphy, 33 Iowa, 270; Com. vs. Haskell, 2 Allen, 136.

2. The Judge sustained the challenge of the State to the competency of a juror under the following circumstances: Tho juror was examined on his voir dire, and stated that he had talked with one of the witnesses, who was present at tho killing, and had also heard of the homicide from others, and that from what ho had heard, had formed an opinion, but that opinion was not of a fixed character. The Judge stated in the bill in support of his ruling, that the juror lived about a mile from the scene of the homicide, and that the witness referred to was the main witness in the case; that he, the juror, was at the place soon after the wound was inflicted, and assisted in burying the deceased. That it was evident that he knew all about the case, and was anxious to get on the jury. We think, under these facts, that the ruling was correct. There is no respectable authority supporting the doctrine that the judge is stripped of all discretion touching the competency of a juror, who, on his voir dire, answers all right touching his competency, so far as relates to Ms bare assertion that he has formed no fixed opinion, although it may be evident from the facts disclosed on his examination, that his assertion was false, and his motive in making it corrupt. In this instance, the juror was a near neighbor, one of the first on the spot, conversed with the main witness who alone had witnessed the killing, and yet had no fixed opinion ! If a Judge, though convinced that a juror is incompetent, and that he has so shaped his answers as to conceal Ms incompetency, out of a desire to get on the jury, has no right to exclude him, then it might well happen that it would bo impossible to procure a conviction in some cases, however flagrant the crime and plain the proof. And on the other hand, such a rule might operate to the prejudice of the accused at times, and prevent his acquittal, however innocent. The Judge is not absolutely hound by the answers of the juror, that he has or has not formed an opinion, when such answer is opposed and inconsistent with facts and circumstances disclosed by the juror on his examination, or otherwise legally known to the Judge. Besides, a distinction can very properly he made between the ruling of a Judge, who declares a juror competent against the challenge of the accused, and forces him on the jury against the protest of the accused, and the case where he declines to let one serve on the jury whom the accused may want there.. In the one case, the juror, who is forced on the accused, may not only, on account of previous bias, prevent his acquittal, hut secure his conviction, whilst in the other case, it is to be presumed that the juror chosen in the place of the one rejected, is an impartial juror, such as the law requires; and in this case, there is no complaint that the juror chosen in the place of' the one excluded was not in every way competent. And if, notwithstanding the exclusion of the juror that the accused was anxious to have, a fair and impartial jury was obtained, and we find no charge that it was not so, surely we cannot conclude that the accused was so seriously injured by the ruling as to entitle him to a new trial, or, in fact, that anything whatever was done to his prejudice.

We find no error in the proceedings, and the sentence and judgment are, therefore, affirmed with costs.

Chief Justice Bermudez and Justice Levy dissent.

Disserting- Opinion.

Bermudez, C. J.

I respectfully dissent from the opinion and decree of the majority of the Court in this case, for the reason, that in my opinion, the exception taken to the ruling of the District Judge on the challenge of the juror, for cause, should he sustained and the case remanded.

The juror, sworn on his voir ¿lire, said: that he had a talk with one of the witnesses who was present at the time of the homicide, and who was a small hoy.

The juror further pointedly said: that from what he had heard, he had formed an opinion, hut the opinion was not of a fixed character and could he removed by competent testimony, and that he would be-governed entirely, in rendering a verdict, by the law and the evidence on the trial.

The District Judge says in the hill, that the juror lived about one mile from the scene of the alleged homicide; the witness referred to was the. main witness in the case, being the boy alleged to have been chastised by the father, who was alleged to have been murdered by the accused. He was at the house of the accused soon after the affray and difficulty, and after the death, helped to put the deceased in the coffin. It was apparent to the court, continues the Judge, that he well knew all about the case, and was anxious to get on the jury, and for good and sufficient reasons to act, knowing all the facts and having formed an opinion, after having conversed with the witness, the court rejected him as incompetent.”

It does not appear what the opinion was, which the juror, on his voir dire, stated ho liad formed. It cannot, therefore, be inferred that it was unfavorable to the accused.

If any deduction could be drawn, it should rather be that the juror was a' friend of the deceased, having helped to place his body in the coffin, thus rendering him the last service, and that he was, as such friend, inclined adversely to the accused. I think that nothing shows what his feelings were, and that the opinion to which he refers was a mere impression received without any deliberation.

The answer which he made shows clearly that not only it was not a fixed opinion, a Mas, which was not susceptible of being removed, but that it was such as could be changed, and that he would be guided exclusively by the evidence and the law governing the case.

In State vs. Brette, 6 A. 653, in which a juror stated that “from the rumors he had heard, his mind was biased, but such bias may be removed after he has heard the evidence, and his mind is open to conviction, and he thinks he can do justice between the parties,” the Court held he was a good juror.

In State vs. Ward, 14 A. 673, the Court decided, that the opinion formed, which disqualifies a juror, must be a deliberate one.

Also in State vs. Ricks, 32 A. 1098, since followed, which was a case in which a juror had first declared, and afterwards reiterated, that he had formed a fixed opinion in regard to the guilt or innocence of the accused, from conversations with persons whom he did not know were or not witnesses, but that the opinion would yield to testimony showing the facts to be different from those that he had heard, we held that he was a competent juror. The opinion was not a deliberate, decided and absolute one, which could not be changed.

On the trial of Aaron Burr, Chief Justice Marshall said, that those strong and deep impressions which will close the mind against the testimony that may be offered in opposition to them, which will combat that testimony and remit its force, do constitute a sufficient objection to him. “ Those who try the impartiality of a juror ought to test him by this rule.” Burr trial, Vol. I, p. 416; State vs. George, 3 Rob. 535 ; State vs. Brown, 4 A. 505; 11 A. 607; 6 A. 653,

In the present case, liad the accused challenged this juror on the same ground that the State has done, and had the court overruled the objection, the ruling could not have been sustained.

The rule must in future he made to operate so as to apply, with equal impartiality, to the State and to the accused.

' Conceding the facts to he as stated by the District Judge, it is not perceived how the juror could be declared incompetent because he appeared on the spot after the occurrence, and happened to converse with one who was to be a main witness.

The law could not disqualify a Judge, even if the Judge were a material witness. Jurors are sometimes themselves heard as witnesses in cases proceeding before a jury of wliich they form part. It does not pronounce the disqualification of this juror, and no good reason or authority is shown why he should not sit on the trial of -the case.

Before submitting the case to the jury the Judge could have warned them in his charge that their duty would be to determine the case on the evidence adduced on the trial, and not at all on facts, the knowledge - of which might have been acquired otherwise, previous to, and outside of the trial.

The presumption is, that when thus admonished and guarded, the-jury would have responded to the responsibility imposed by law upon them.

I have taken pains to review all the authorities within reach, many-of which are cited in the decisions, and I remain satisfied of the correctness of the affirmed ruling in 32 A. 1098, and of its applicability to the present case. See 33 A. 890, 1241; State vs de Rancé, ante, 186.

I, therefore, think that the verdict should be set aside, and the judgment and sentence annulled, and the case remanded for further-proceedings according to law.

Mr. Justice Levy concurs in this opinion.


author: Poetó, J.

text:
    No. 8504.
    Heirs of John P. Michel vs. N. King Knox et als. Heirs of Espanet, Intervenors.
    The will of the husband, who Ioffe no forced heirs, having bequeathed the usufruct of his share of the community property to the wife, giving her, at the same timo, the right to sell the said property itself, the wife, accordingly, sold such property and bought it in herself, at the public sale. Held, that she acquired hy this purohase all the rights that any other purchaser would have acquired, and that she could convey a valid title to the property.
    The Parish Court could legally authorize a married woman, iu the absence of her husband, to purchase property of the value of more than 8500.

      APPEAL from tlie Seventeenth Judicial District Court, Parish of East Baton Kouge Sherburne, J.

      Favrot & Laman and Fdiuard Simon, for Plaintiffs and Appellants,

      Herron & Beale and J. é G. W. Burgess, for Defendants and Appellees.

      G. H. Favrot, for the Intervenors,
   The opinion of the Court was' delivered by

Poetó, J.

John P. Michel died in 1854, in East Baton Kouge, leaving no ascendants or descendants, and leaving a considerable estate in community with his surviving wife, Josephine Michel, to whom lie bequeathed his entire share of the movables belonging to the community, also bequeathing to her the usufruct of his share of the immovable property, without security on her part.

His will, which was rather ambiguous, in so far as it gave to special legatees such portions of his share of the immovables as would hot have been disposed of by his wife, at the time of her death, was fully interpreted by this Court in a decision reported in 10 Annual, p. 352, in which her rights as legatee of all the movables, and her rights as usufructuary of -the decedent’s share of the immovables were sx>eeially recognized, with the power and authority to sell at public auction at her option, and on her own terms, all the property subject to her usufruct, and to exercise her said rights on the proceeds of the sale thus made.

Such sale was made in August, 1855, resulting in Mrs. Michel’s purchase of a large portion of the immovable property of the succession and community. After the sale, she retained the ownership and possession of the property which she had bought, and received for her me the proceeds of so much of the property as was purchased by strangers.

In October, 1871, Mrs. Michel made a. donation inter vivos to Mrs. Adéle Bory, an intimate friend of hers, of a valuable piece of property, situated in the city of Baton Kouge, valued at $8,000, and forming part of her purchase of August, 1855, which donation was subject to an annual rent of $600 during the remainder of the donor’s life, to be paid to her by the donee in equal monthly instalments.

Between December, 1870, and December, 1871, Mrs. Michel executed several promissory notes, of various sums, ariiounting together to $8,180, payable to the order of Mrs. Bory, who negotiated the saíne, by endorsement, to two or three different persons, and in March, 1873, these notes, being then held by H. K. Knox, Mrs. Bory executed in his favor, a mortgage on the immovable property donated to her by Mrs. Michel, in order to secure the payment of said notes.

Mrs. Micliel died in 1872, and at tlie settlement of her succession in 1873, N. K. Knox, received from the administrator the sum of $1,900, on account of Mrs. Michel’s notes, held by him as stated above.

In September, 1874, the property donated to Mrs. Bory was sold for taxes, assessed in her name, and adjudicated to N. K. Knox, one of the defendants herein.

After reciting in substance the foregoing facts, which are shown by the record, plaintiffs, as heirs and legatees of John P. Michel, and intervenors as heirs of Mrs. Michel, seek, by this suit, to obtain a judgment, decreeing the nullity of the donation to Mrs. Bory, and of the tax sale to N. K. Knox, so as to revert the title of the property to the succession and community of John P. Michel and wife, and decreeing the nullity, for want of consideration, of the notes executed by Mrs. Michel in favor of Mrs. Bory, and also condemning Knox to pay and restore to them the sum of $1,900, paid to him on account of said notes, by the administrator of Mrs. Michel’s succession.

The defendants pleaded the general issue, and averred specially the validity of all the transactions alleged by plaintiffs to be fraudulent, null and void, averred the good faith of Knox in his purchase, and concluded with a prayer in case of a decree annulling the donation and the sale, for reimbursement of the taxes paid, and improvements placed by Knox and Mrs. Bory on the property. They also urged the plea of res jiulicafa against intervenors, as heirs of Mrs. Michel, based on the judgment homologating the final account of administration of Mrs. Michel’s succession, to which they were parties as defendants and as opponents.

Plaintiffs and intervenors are appellants from a judgment of the District Court rejecting all their demands.

As the title of Mrs. Bory, under the donation, underlies the controversy on the first branch of the case, we shall first direct our attention to plaintiffs’ attack on that transaction.

The nullity which plaintiffs charge is on the theory that at the time of the donation the naked ownership of Michel’s share of that piece of property was in his heirs and legatees, and that under the will, Mrs. Michel, being only the usufructuary of her husband’s share, she could not dispose of the property by gratuitous title.

The fallacy of this position, which has caused this complicated litigation, and is the main prop of plaintiffs’ entire superstructure, can be easily demonstrated, both on principle and authority.

Under the •will, as interpreted by the opinion and decree of this Court, Mi's. Michel had the option to exercise her right of usufruct on her husband’s immovables, directly, or by provoking a sale of the same at public auction, to have her usufruct established on .the proceeds of the sale. If she elected to exercise her usufruct on the property itself, she would have been subjected to the rules of the perfect usufruct, under which she could not acquire title to the property, which she was legally bound to restore to the owners at the termination of the irsufruct. If, on the other hand, she chose, as she did, to have the property sold, to enjoy the usufruct of the proceeds of the sale, she. was governed by the rules of the imperfect usufruct, under which she became the owner of the funds, subject to the obligation of accounting for the same to the heirs and legatees of her husband, at the expiration of the usufruct. C. C. 535, 536, 549; Succession of Hayes, 33 A. 1143.

Up to the sale of August, 1855, she was owner, in her own .right, of one-half of the property, and usufructuary of the other half with the naked ownership in the heirs and legatees of the decedent.

By the sheriff’s adjudication to her on August 4, 1855, she acquired a title under a purchase, “ as valid and binding as though made by any disinterested third party,” C. C. 1146; and by operation of law, the purchase price was turned over to her, with her usufruct attaching to one-lialf of the same, and quoad that property, she became at the termination of tlie usufruct, indebted to the heirs and legatees of her husband for one-half of the proceeds of the sale. She thus acquired as complete and perfect a title to this property, as that which third parties acquired to the property purchased by them at that auction sale. As such owner, she was impeded by no law from disposing of her lawful property by sale or donation, and hence, her donation to Mrs. Bory transferred an untrammelled title to the latter.

But, as Mrs. Bory’s husband was absent from the State, she obtained, the authorization of tlie Parish Judge for the purpose of legally accepting the donation, and it is contended that the property, being valued at $8,000, the Parish Judge was incompetent for want of jurisdiction beyond $500, to grant the order, and that, therefore, the wife being authorized by neither husband nor Judge, the donation was a nullity. This objection is predicated on the. requirements of Arts. 126, 127 and 128, of the Civil Code, regulating loans made by married women, and the authorization in this case must be regulated by Art. 132, in which no reference is made to the amount involved, and we hold that the Parish Judge was competent to authorize a married woman to accept a donation without reference to the value of the property donated. But as this question is stripped of practical importance under our present judiciary system, we shall not elaborate the reasons which led us to that conclusion. For be that as it may, we are clear that plaintiffs have no authority in law to institute this inquiry, or to urge this nullity.

Art. 134 of the Civil Code provides, that “proceedings to' annul the acts of the wife, for want of authority, can be instituted only hy the husband or wife or by their heirs.” This Article is too clear and unambiguous to need any judicial interpretation of its meaning and import.

Marcadé, (Yol. I. p. 567) commenting upon the corresponding Article of the Najxileon Code, of which our Article is a literal translation, uses the following terse and decisive language : “ L’acte n’est qiv’cminilable et l’annulation n’en peut étre demandée que par la femime, le mari ou leurs représentants; elle lie pourrait pas l’étre par ceux ou les représentants de ceux qui ont contracté'avec la femme.”

Hence, we conclude that the act being only voidable, the nullity is only relative, and none but the parties specially authorized by law can seek to have the nullity declared, and a fortiori are these plaintiffs representing rights under the donor,' silenced in the matter. Roberts vs. Wilkinson, 5 A. 370; Lafitte et al. vs. Delogny et al., 33 A. 663, and authorities therein quoted.

Hence, that plea falls.

Thus, it is clear that by the sale of August, 1855, the succession' of Pierre Michel having'been divested of all title to the property, and Mrs. Michel having voluntarily parted with her title by the donatiou of October, 1871, plaintiffs, as heirs and legatees of Michel, and as creditors of Mrs. Michel, for the account of her imperfect usufruct, and the intervenors, as heir's of Mrs. Michel, whose distinct rights in these various capacities have all accrued subsequently to the act of donation, had no more title or interest to the property in 1874, when it was sold for taxes and brought in by the defendant, Knox.

. Hence, it follows that the validity or nullity of that sale is of no concern to them, and, therefore, they have no right to judicially assert the nullity of that sale, which cannot be disturbed in this suit. They cannot champion the rights of Mrs. Bory, the expropriated owner, who does not complain.

As to the nullity of the notes, the evidence shows that Knox acquired them in good faith, and for consideration. The burden of proving-want of consideration was, therefore, on plaintiffs, and this they have utterly failed to do. Smith’s Mer. Law, p. 257; Ogden vs. Marchand; 29 A. 61; 38 A. 94; 21 A. 200.

The claim of plaintiffs for restitution of the sum of $1,900, paid to Knox by the administrator of Mrs. Michel’s succession, is barred by the prescription of three years, under the provisions of Art. 1138, C. C., which says: “The action on the part of the creditors who have not been paid, against the creditors who have been, is prescribed by three years, counting from the date of the order or judgment, in virtue of which the payment has been made.” The judgment was rendered in 1873, and this suit was filed in 1878.

The record shows that the intervenors were parties as heirs, by citation, and as opponents, in the matter of the final account of administration, homologated by the judgment of May, 1873, by which they are bound, and they are thus debarred from the right of contesting the validity of the payment made to Knox.

Having considered and answered all the points suggested by plaintiffs in their pleadings in this case, wo think that there is no error in the conclusions reached by the District Judge.

The judgment' appealed from is, therefore, affirmed at appellants’ costs.


author: Todd, J.

text:
    No. 8169.
    The State of Louisiana ex rel. University of Louisiana vs. E. A. Burke, Treasurer.
    The holder of a warrant In tho general fund under an appropriation which is not imperatively required to ho made by, and tho amount thereof fixed in the Constitution, is not entitled to be paid out of said fund concurrently with the holders of constitutional warrants for salaries fixed by the Constitution.
    In such a proceeding, the court is not authorized to look beyond the pleadings, and grant other relief than that specifically asked.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Garleton Hunt, for’ the Relator and Appellant:
    Warrants issued to meet the appropriation made for the support of the University of Louis* ianav pursuant to the provisions of Article 230 of the Constitution of 1879, are constitutional warrants, and, as such, are entitled to be paid on the same footing as warrants issued for salaries of constitutional officers. See 32 An. 1216.

      J. G. Hgan, Attorney General, for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

This is a mandamus proceeding to compel the payment by the State Treasurer of certain warrants held by the University of Louisiana, of the State series of 1880.

" The Constitution of 1879, among its other provisions, declares :

The General Assembly shall from time to time make such provision for the proper government, maintenance and support of said State University/ and all departments thereof, as the public necessities and well being of the people of Louisiana may require, not to exceed ten thousand dollars annually.”

The legislature, by Act 71 of 1880, appropriated for the support of flie University, by authority of this Article, ten thousand dollars for each of the years. 1880 and 1881, and the warrants in question were issued under the provisions of this Act.

The answer of the Treasurer, supported by his evidence, shows that there is no money to pay ordinary warrants, that is, warrants whose payment is not absolutely required by the Constitution, and that the rule of his office was to give the warrants issued to pay salaries of Constitutional officers, the preference.

In the ease of the State ex rel. Collins vs. Burke, 32 A. 1215, this Court held:

That warrants for the salaries of Constitutional officers, where the amounts of such salaries are fixed hy the Constitution, are entitled to be paid out of the general fund of the State hy preference and priority over all other warrants against such funds.”

The Relator claims to he paid the amount of the warrants concurrently with all warrants issued to Constitutional officers.

The relief sought is too broad. There are warrants which are issued to Constitutional officers, representing the three branches of the government, whose salaries are fixed hy the Constitution, and must he paid by preference over all other officers whose salaries are not • so fixed. This was expressly decided in the Collins case above referred to.

The warrants held hy the Relator were not issued to any officer whose salary is fixed hy the Constitution, hut to an institution in whose favor the Constitution does not provide hy a fixed allowance.

In the first instance, the. warrants represent the debt of the State determined hy the Constitution, and its payment imperatively required by the mandatory terms thereof.

In the second instance, the warrants represent a liberality of the State measured hy the discretion of the legislature, and which must remain in suspense in the event of a depleted treasury.

In an application for a mandamus, the Court is powerless to grant a relief different from that specifically asked.

Had the Relator prayed for payment by preference over, or concurrently with, other specified warrant holders, the Court might have extended its inquiry, and determined the question presented, butunder the issue submitted, it is restricted to the sole question, whether the Relator is or not entitled to participate in the distribution of the fund in tire treasury, concurrently with all Constitutional warrant holders without discrimination.

-Under the pleadings and the evidence, we are constrained to determine the issue in the negative, and decline the special relief sought.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 8560.
    Thomas B. Rhodes vs. Chas. E. Black and S. W. Davis et al.
    It is the value of the thing claimed, and not the amount of the judgment sought to he sattisfied out of it, which determinates the jurisdiction of this Court, when title is asserted to the property. There being no allegation, no affidavit, no testimony to show the value of the property in this ease, the appeal is dismissed.
    APPEAL from the Eighth Judicial District Court, Parish of East Carroll. Deloney, J.
    Plaintiff and Appellant not represented.

      J. M. Kennedy, for Defendant and Appellee, Chas. E. Black:
    If one of the parties to a contract or written obligation fail or refuse to sign, the obligation is not complete, and it is not binding on the others who have already affixed their signatures. Wells vs- Dill, 1 N. S. 592; Pothier on Obligations, Ho. 11; 4 A. 546; 2 A. 592; Curtis et> al. vs. Moss et al., 2 R. 307; G.H. S. 400.
    Injunctions are matters of strict law; and all proceedings prescribed by law to obtain this process must bo strictly complied with, under pain of nullity. The execution of a valid and binding bond is a condition precedent prescribed by law for the exercise of this process. C. P. Art. 304; V. S. & X. R. R. vs. Barksdale, 15 A. 467.
    Where the sale of specific property is enjoined by a third party claiming ownership, the law fixes the amount of the injuction bond at “ one-half over and above the estimated value thereof.” R. S. of 1870, Sec. 1748.
    Where the law fixes the amount of the bond, the judge cannot alter or vary it; no discretion is granted him. Mulain vs. Judge, 29 A. 793; 21 A. 65 ; 30 A. 314, 283.
    The rule, as one binds himself so shall he be bound, relates to conventional obligations only,. and does not apply to judicial bonds. H. D. 1023, Ho. 6
    Where a third party enjoins the sale of specific property upon the allegation of ownership, the value of the property seized, and not the amount of the debt for which the seizure was levied, determines the jurisdiction of the Court. State ex rel. Mills vs. Judge, 12 A. 48 ? 13 A. 510, 592 and 595; 5 A. 31.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a petitory aetiou coupled with an injunction.

The plaintiff claims to be the owner of real estate against which executory process issued, in the suit of Black vs. Davis, these being the defendants herein.

From' a judgment dissolving the injunction; on a rule by Black, the plaintiff appeals.

The rule was based upon the following grounds :

1. The incompleteness of the bond, as not signed by all therein named as sureties.

2. The insufficiency in amount, hot being for one-half over and above the estimated value of the specific property, the sale of which was enjoined.

The appellee suggests that this Court has uo jurisdiction over the matter, there being no evidence of tbe value of the property.

We find in the record no certificate of the officer who made the seizure, no testimony, no allegation, no affidavit, to show the value of the property to be within our appellate jurisdiction, as a matter in dispute.

Where a third party enjoins the sale of property as belonging to Mm, it is the value of the thing claimed and not the amount of the judgment sought to be satisfied out of it, which determines the jurisdiction of this Court. 12 A. 48; 13 A. 510, 592, 595; 5 A. 31.

We feel bound prop rio motu to ignore the case.

It is, therefore, ordered, that the appeal be dismissed with costs.


text:
    No. 8505.
    Edgar Davenport et al. vs. N. King Knox et al.
    A radical defect in tlie assessment, as where the property lias not been assessed, in the name of the true owner, is such a nullity that it cannot be cured by prescription. The purchaser under such a title, who has been evicted, is entitled to be reimbursed the value of his improvements and the taxes paid thereon, not including penalties and costs.
    APPEAL from the Seventeenth Judicial District Court, Parish of East Baton Rouge. Sherburne, J.

      G. I>. Favrot and Herron & Beale, for Plaintiffs and Appellants:
    Property assessed to Heirs of Engleliarfc cannot he the basis of judgment against the Heirs of John Davenport, to whom the assessed property belongs. 28 An. 17; 10 An. 771.
    A tax sale is illegal when the tax is levied on more prox>erty than is actually owned- An assessment on 500 acres being §1500, on 404 acres would only be §1212.
    A sale by collector made in June, 1875, is null and void. 32 An. 228; 30 An. 817.
    A confirmation of sale made by the Auditor in July, 1875, is a nullity for same reason.
    Owners of property are entitled to notice- A tax sale not recorded is not notice to them. A tax sale without notice, without previous seizure, and without being advertised three times during ten days, is fatally defective.
    The prescription of five years will not cure such nullities.
    The prescription of five years runs from the recording of the Auditor’s deed, not from the date of the tax sale.
    Prescription of five years, under Act oí 1855, cannot apply to a tax sale made by the tax collector. Such sale does not pass title, but only gives a right dependent on future contingencies.
    A tax salo, under Act 47 of 1873, nob followed by an order of possession, taken contradictorily with former owner, cannot form the basis of prescription. 32 An. 704.
    The onus probandi is on the party claiming, by virtue ef a tax sale, to show that the formalities required in making the assessment have been comx>liod with. 33 An. 520.

      Burgess & Burgess and W. J. Knox, for Defendants and Appellees:
    Assessments stand in lien of judgment in ordinary judicial sales. 29 A. 508; 10 A. 74; 10 L. 276.
    There is no difference in execution sale and tax sale, except in mode and period of advertising. 1L. 491. All- informalities in public sale, such as want of seizure, notice, advertisement and other relative nullities, are prescribed by 5 years. 14 A. 790 ; 21 A. 505, 585; 29 A. 534; 33 A. 1045.

      Where land is assessed for a long term of years, in the same name and style as Heirs of Englehart, or Englehart’s Heirs, and taxes are paid hy the heirs, or their agent, for a series of years, afterwards sold for taxes, or as forfeited land to the State trader same assessment, there being no change either in the mortuaria of deceased or in the Conveyance office, the sale will he good and prescription applies. 33 A. 554, 816; 11 A. 251.
    Purchasers at tax sale must be reimbursed or tendered amount so paid before suit can be maintained to annul it. 24 A. 525.
    And when paid at a void tax sale, so much as was really due od the property for tax sales, he is entitled to be refunded. Hopkins vs. Succession Dauaoy, 33 A. 1423.
    Eor possessor in good faitb, see 12 A. 545; 1 H. S. 408; 19 A. 25; and 26 A. 58T.
    Act Ho. , 1875, Seclion3, which remits and prohibits sales for taxes to Hovember and December of that year, was not authorized hy the title to the act, and is unconstitutional and void. All actions to annul tax sales are prescribed by three years. Acts 1874; 33 A r 291.
   The opinion of the Court was delivered by

Todd, J.

This is suit to annul certain tax sales and recover the land, the subject thereof.

The grounds of nullity charged are: illegal assessment, notice, seizure, advertisement, and, in short, irregularities in all the formalities and requirements preceding and attending such sales.

The property in question had been owned for many years before the sales, by the plaintiffs, who had acquired it hy inheritance from their ancestress, the wife of John Davenport, and she had derived her title to it from her parents, Philip and Magdalene Euglchart, the first of whom died in 1817, and the latter in 1828. The property was never assessed in the names of the plaintiffs, who for many years had been the true and undisputed owners of it. It was assessed to the heirs of Euglchart, and described as 500 acres on Ward’s Creels, with rather a vague reference to adjacent tracts. The sale was made of two parcels of the land to N. Bertrand and N. K. Knox, respectively, on the 7th of December, 1874, and of the residue to E. W. Willis and T. E. Blonin, on the 25th of May, 1875.

It is not necessary to discuss all the questions raised touching the several irregularities urged against the sales in question. It is sufficient to say, that under our repeated adjudications, the assessment of the land, as described above, was radically defective, and was not, and could not, bo made valid by the alleged acts of ratification. The case is not within the principle of Dane vs. March, 33 A. 554; Carter vs. City, 33 A. 816; 32 A. 912, 924 5 Stafford vs. Twitchell, 33 A. 520, and authorities .there noted.

The assessment, as has been often said, is, as it were, the judgment under which the sale is made, and it is a self-evident proposition that a sale of the plaintiffs’ land, tinder a judgment against the heirs of Englehart, would he absolutely null. 10 A. 771; 28 A. 17; 33 A. 520.

In addition to this, the sale to Willis & Blouin, on the 25th of May, 1875, was made in contravention of a prohibitory law suspending sales for taxes for a given time. 30 A. 871l; 32 A. 228, and case of Wederstrandt vs. Freylian, not yet reported.

The exception of want of tender cannot prevail in a case of this hind. Stafford vs. Twitchell, 33 A. 520, and case last above cited.

And in the case of Lague vs. Boagni, 32 A. 914, we held, that in the face of a radical defect in the assessment, as in this case, prescription cannot be accepted as intended to perfect titles in cases in which the gravest irregularities and absolute nullities have been propounded.” See also Wederstrandt vs. Freylian, above cited.

In the Stafford case referred to, and others where the sale was annulled for irregularities, identical or similar to those found in the instant case, we recognized the right of the purchaser at tax sales to claim reimbursement for the taxes paid on the property and improvements made thereon. 19 A. 25; 26 A. 587; 33 A. 175; 33 A. 521; Wederstrandt vs. Freyhan, 34 A., not yet reported.

The testimony in the record does not, however, inform us with accuracy as to the amount of taxes (not including costs and penalties) due on the lots of land acquired by the defendants, respectively, at time of sale, and paid by them subsequently to tlieir purchase, or the proportion of the taxes due on the entire tract, paid by each purchaser, and the taxes paid by each separately after their purchase. The costs and penalties cannot be reimbursed. Hopkins vs. Daunoy, 33 A. 423.

Nor are we enabled to make a satisfactory estimate of the value of the improvements made by the several purchasers, from the evidence in the record. This compels us to remand the case for further evidence on these points.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from bo annulled, avoided and reversed, and it is now ordered, adjudged and decreed, that the tax sales of the land described in the petitions made respectively on the 7th of December, 1874, and 25th of May, 1875, be, and the same are hereby declared null and void, and it is further ordered, that the case be remanded to the lower court for the purpose of ascertaining the amount of taxes (not including costs and penalties) paid by each of the defendants, rcsx>ect.ively, on the lots or parcels by them xvurchased, due at the time of sale and subsequently, and the value of the improvements by them respectively made, the right to recover which said taxes and imx>rovements is reserved to the defendants; defendants to x>ay costs of both Courts.


author: Pociié, J.

text:
    No. 8527.
    Louisa Mather et al. vs. N. K. Knox and F. Eugster.
    JjTo owe can be allowed to question tbo validity of a sal© and, at the same time, to judicially áemaud the proceeds of suoh. sale.
    'SCjie tutor's receipt, by authentic act, for money due his wavda, cannot be ooutradicted by oral ovidenoe
    $To Jaw oompejs tire tutor to consult a family mooting or to obtain the authorisation of the .«Tudge, for the purpose of investing the minor’s fund» on mortgage, in acoordance with •the provisions of the Code.
    APPEAL from the Seventeenth Judicial District Court, Parish of East Baton Rouge, Sherburne, J.

      H. II. Walsh and Swntfl P. Gfreves, for Plaintiffs and Appellants,

      Ilerron ds Beale, Burgess <G Burgess and Sam’l P, Blanc, for Defendants and Appellees.
   The opinion of the Court was delivered by

Pociié, J.

This controversy arises from the following facts, which we gather from the record, a statement of which, is necessary to a proper understanding and a correct appreciation of the issues presented by the pleadings.

Philip and Ann Hicky at their death, in East Baton Rouge, left a large estate, and five heirs, issue of their marriage,

Among the heirs were the issue of a pre-deceased daughter, Martha Hicky Walsh, one of whom, Louisa Walsh Mather, is represented by her surviving children, the plaintiffs in this case, whose mother died in Iberville Parish in 1861, and whose father, Charles Mather, was qualified as their natural tutor in 1865.

In 1869, a large sugar plantation, known as the Hope Estate, and other immovable property, and some movable property depending upon the successions of Philip and Ann Hicky, being held in indivisión by the heirs of said successions, a suit for partition was instituted by the heirs of age against Charles Matlior, as tutor of liis minor children, now represented by plaintiffs, and resulted in a partition by public sale of all the property hitherto held in indivisión by said parties.

At that sale the (< Hope Estate ” Plantation was adjudicated to Mrs. Adele Fowler, a daughter of Philip and Ann Hicky, who, in part payment of the purchase price, executed three notes of $6,250 each, secured by mortgage and vendor’s privilege on the plantation in question.

At the act of partition made in pursuance of the order of sale and partition, after charging the minor heirs of Louisa Walsh Mather with various sums received by her during her lifetime and by their tutor since the death of their mother, it appeared that a balance of $4,058.83 was due to said minors.

On the 12th of March, 1871, Charles Mather, tutor, acknowledged in an authentic receipt, to have received payment in full of the balance thus accruing to his. minor children, and in the same act he ratified an investment made by his attorney, H. H. Walsh, the uncle of his children, of a sum of $4,C6'0.42, on a second mortgage on Hope Estate,” represented by two notes of Mrs. Adele Fowler, for the slim of $2,333.21 each, maturing respectively in 1872 and 1873.

Now, in 1873, at the suit of Fidel Eugster, as holder of the notes of Mrs. Adéle Fowler, secured by vendor’s privilege on Hope Estate Plantation, and hereinabove described, that property was seized and was adjudicated for a sum less than the amount of the notes, to James Mather, Fidel Eugster and Nathan K. Knox, the latter two being now the sole owners of the property.

The object of plaintiffs in this suit is to subject the Hope Estate Plantation to a mortgage and vendor’s privilege to secure the sum of $4,606.42, and interests, amount due to them by the purchaser at the partition sale, Mrs. Adéle Fowler, for the main reason that they have never received payment for their share in the purchase price of said Plantation.

In their petition they allege many irregularities and illegalities in the partition suit, which resulted in the sale of that Plantation and of other immovable property coming from the succession of their great grandfather; they charge that no one was ever appointed as their tutor, and many other defects, which would invalidate the sale of the Plantation and the titles of the defendants to the same. But the prayer of their petition, which determines the character of their action, is for the payment of their share of the purchase price of the Plantation, at the sale effected in the partition proceedings, and operates as a formal and binding ratification, on their part, of the validity of that sale, and eliminates from this controversy all allegations of irregularity or illegality of the proceedings culminating in the sale.

No one can be allowed to question the validity of a sale, and at the same time to judicially demand the proceeds of such sale.

The mortgage which was granted by Mrs. Fowler to secure the investment of the minors’ funds by their tutor, being second in rank to the mortgage and vendor’s privilege securing Mrs. Fowler’s notes held by Eugster, in execution of which the Plantation was adjudicated to defendants for less than the amount of the notes sued on, it followed under our laws that the second mortgage unsatisfied was extinguished quoad the property sold, which thus went into the hands of the pm-chasers free of the mortgage granted in favor of plaintiffs. C. P. 707, 708.

The argument that the receipt of the tutor was not true, that the investment of the minors’ funds was injudicious and illegal, can have no effect as to the defendants, who cannot be held responsible for the errors and shortcomings of plaintiffs’ former tutor. Ilis receipt for the minors’ share in the purchase price was formal and authentic, and makes proof of itself; it cannot be contradicted by parol testimony. No law compels the tutor to consult a family meeting, or to obtain the authorization of the judge for the purpose of investing the minors’ funds on mortgage, in accordance with the provisions of our laws ordering and regulating such investments. C. C. 347, 348, 351.

If the tutor, colluding with the purchaser, falsely acknowledged receipt of the amount due to his children, which is very improbable, or if he jeopardized their interests by accepting in their behalf a second mortgage to secure the amount accruing to them from the succession which they inherited, he may be held responsible to them for his errors of judgment, or for his fraudulent mal-ad ministration, but in no possible contingency could the property, purchased by these defendants at a partition sale which has been ratified by plaintiffs themselves, as we have shown above, be subjected to a vendor’s privilege and first mortgage, when neither was created by the acts of the parties, and a fortiori never registered.

Plaintiffs have doubtless a right of action against the tutor for the acts of malfeasance with which they charge him, but they have shown no right against the defendants, or the property which they acquired in good faith at the partition sale through their vendor, Mrs. Fowler. Abner Lorn, Tutor, vs. Succession of Melice Antz, 9 R. 230.

The cases quoted from the 33d Annual Reports by plaintiffs’ counsel can give them no relief.

In the Succession of Antoine Mitchell, page 353, the contention was directly between the minor and her tutrix, whose acts in behalf of her ward, when not conforming to the requirements of the law, were stricken with nullity, and she was held personally responsible to her ward.

In the case of the Heirs of Self vs. Taylor, page 709, the heirs recovered property which they had inherited from their ancestor, on the ground of the illegality and nullity of the proceedings under which they had been expropriated, and it was shown by the evidence, that in receiving from their tutor the proceeds of the sale of the property which they revendieated, they were ignorant of the fact, and hence, their receiving the price, under such circumstances, could not be construed as a ratification of the sale.

In the present case, plaintiffs, with full knowledge of all the facts which they themselves recite at length, claim a mortgage on the property sold, in payment of their share of the purchase price, and thus show a ratification which could hardly he made more formal and more binding.

The judgment of the lower court was in favor of the defendants; and, being correct, it is affirmed with costs.


author: Fenner, J.

text:
    No. 8525.
    Lionel L. Levy vs. Wm. S. Calhoun and Meredith Calhoun.
    Prescription of a judgment may he interrupted by other modes than a suit in revival of the judgment.
    Citation in a suit of revival, though issued from an incompetent court, has the effect of inter- • rupting tlie prescription of a judgment.
    Acts 2s o. 28 of 1875 and 2sb. 29 of 1879 imposed no such penalty as the destruction of judgments in cases of which the records were not re-established in the manner provided for by such statutes.
    In suits of revival the burden of proof rests on the defendant, to show that the judgment sought to be revived was absolutely null.
    APPEAL from the Twelfth Judicial District Court, Parish of Grant. Barbm, J-

      Miller, Finney & Miller, for Plaintiff and Appellee :
    The law of this State authorizing the revival of judgments was not intended to provide any different mode of interrupting prescription of judgment from those applicable to other forms of debt, but was only intended to prevent the prescription of judgment debts, and to continue them in force from ten years from the date of revival. The proscription of a debt evidence by a judgment can be interrupted in the same modes as the prescription of debts evidenced in any other way. 30 An. 1071.
    TF. F Blackman, for Defendants and Appellants:
    Judgments not revived in accordance with Art. 3547, Civil Code (R. S. 2813) are prescribed by the lapse of ten years.
    Citation to revive, unless from the Court that rendered the judgment, does not interrupt the prescription. Same.
    The power to confess judgment in favor of the principal, must be special and express to the agent. C. C., Arts. 2996-7.

      Joseph B. Jlornor and Francis W. Balter, on the same side.
   Tlie opinion of the Court was delivered by

Fenner, J.

This case is a sequel to tlie suit of Calhoun vs. Levy, decided by us and reported in 33 A. 1297, and is an action to revive a judgment, instituted more than ten years after its rendition.

The defense of prescription is interposed, which plaintiff avoids by proof of an interruption thereof, resulting from a citation of the defendants in a former action to revive the judgment, which was brought within the prescriptive term, but before an incompetent court.

In tine case above referred to, on rehearing, although we did not then definitively decide the question of prescription, we had occasion to consider the legal principles applicable thereto. We there said .-

“ If the prescription of judgments and of actions to revive them, is subject to the same modes of interruption as apply to the prescription of all other rights and actions, it is clear that citation, even before an incompetent court, does operate such interruption. C. C. 3518,3551.
“ It has been held by our predecessors that the Statute of 1853, now C. C. Art. 3547, did not provide an exclusive mode of preventing the prescription of judgments, but left such prescription subject to all the other modes of interruption provided by law.' 30 A. 1071.
We fully concur in the doctrine of that case. The Act of 1858, now Art. 2278, C. C., provides that parol evidence shall not be received to prove any acknowledgment or promise to pay any judgment * * ” for the purpose, or in order to take such judgment out of prescription, or to revive the same after prescription has run or been completed.’ It is impossible to reconcile this Article with the theory that the mode provided in Art. 3547 is exclusive of other modes of interrupting the prescription of judgments.
“ If, then, the prescription of this judgment was interrupted by the-citation heretofore referred to, the action to revive yet lies under the very terms of the proviso of Art. 3547, which says : ‘ Any party interested in any judgment may have the same revived, at any time before it is prescribed, by having a citation issued, etc.’” Calhoun vs. Levy, 33 A. 1297.

We have attentively considered the arguments of defendants’ counsel without finding reason to change the views above expressed. We can discover no possible authority possessed by us to hold that the word “revive,” as used in the last paragraph of the first Section of C. 0. 2278, is used by mere clerical error, in lieu of the word “ recover.” employed in the Act of 1858, and in Section 1441, R. S. The Code prevails over the Statutes, R. S. 3990. We are bound to consider that the change was purposely and advisedly made, and, so considered, the circumstance greatly strengthens the construction placed by this Court upon the law.

We find no force in the objection that the effect of the citation in the first suit to revive, brought in the Rapides Court as an interruption of prescription, is destroyed by the Section 4 of Act 26, Ex. Sess. 1870, declaring that all actions taken in that court without reference to suits-transferred to Grant Parish, “ shall be null and void.” This merely declares the effect of the incompetency of the court, but the citation; before a court of justice, however incompetent and however null and ■void its proceedings thereon may be, yet interrupts prescription.

It is said, however, that plaintiff’s original judgment ceased to exist, by reason of the destruction by fire of the records of Grant Parish in 3873, and again in 1878, and by.reason of the failure of jdaintiff to reestablish his record, in the manner, and within the time prescribed in Acts 28 of 1875, and 29 of 1879.

Those Acts merely provided .a special way of reestablishing records thus destroyed, and the lapse of the time within which that course might be pursued, merely deprived parties of that particular mode of relief. They imposed no such penalty as the destruction of judgments, and no deprivation of the right to establish them in other modes existing independently of those Statutes. Plaintiff here has established his original judgment in all its essentials, by full proof, not oven ■objected to.

Objection is made that the service of the first citation to revive is not sufficiently proved, because the capacity of the deputy sheriff making the return of service is not proved. The citation and the •return thereon, were offered and received without objection, and the official capacity of the returning' officer was not denied or questioned. The presumption of omnia rite acta covers the case.

Finally, a special defense is set up by the succession of Meredith Calhoun,that plaintiff’s original judgment, as against it, was invalid, because rendered on the confession of his co-defendant, W. S. Calhoun, ¿acting as agent of Meredith Calhoun, but, as is alleged, without authority to confess the judgment.

After some controversy, this Court has settled the doctrine that objections of this character may be urged in bar of an action to revive. Conery vs. Rotchford, 30 A. 692; Laurent vs. Beelman, id. 363; King vs. Pickett, 32 A. 1006.

An examination of these cases, however, shows that the doctrine rests on the principle that the law only contemplates the revival of judgments, and that when it is shown that the pretended judgment is an absolute nullity, and, therefore, no judgment at all, it cannot be revived.

But, under the very terms of C. C. 3547, the burden of proof in support of such objections rests conclusively on the defendant. The revival must take place unless he show good cause why the judgment should not be revived,” and when he alleges, as such good cause, that the judgment is an absolute nullity, he must prove it. The judgment here was rendered on the confession of W. S. Calhoun, the co-defendant and admitted general agent of Meredith Calhoun, who is now one of his heirs, and the administrator of his estate, and who, in the latter capacity, now avers that his own act was unauthorized. He is himself the only witness, anti he says simply : “ the power of attorney marked C. is the power under which I confessed judgment for my father. ^ “ My father was in France at the time.” It is not necessary to determine whether the very full and general power referred to embraces the authority to confess judgment. Even if it does not, does the testimony above stated establish the absolute nullity of the judgment? We think it is clearly insufficient. Admitting that he considered himself as acting under that power, he might well have had other sufficient v&rbal authority, and even if he did not, it is possible, and even natural and probable, that his action may have been communicated to his father and approved and ratified by him.

The nullity of the judgment does not necessarily result from the evidence, and the cause shown not being established, the judgment must he revived.

Judgment affirmed at appellants’ cost.


author: Levy, J. Todd, J.

text:
    No. 8297.
    Joseph Ritter, Dative Tutor, vs. Succession of Louis Faessel.
    Nothing in the record showing the amount of the indebtedness of the former "tutor to his ward, the order of seizure and sale issued by tbe lower court, to foreclose the special mortgage given by said tutor, was granted upon insufficient evidence and must be set aside.
    Such special mortgage given by the tutor, does not import a confession of judgment for any specific amount.
    APPEAL from the Civil District Court for the Parish of Orleans. liUjhtor, J.
    JJ. North Gullom, for Plaintiff and Appellee.

      L. L. Levy, for Defendant and Appellant:
    The special mortgage given by the natural tutor to secure the rights of his minor children and the faithful performance of his duties as tutor, is not exigible until one of the minor» attains his majority, 'when he can proceed to sale of property mortgaged, after discussion of the other property of the debtor. C. C. 325 to 333.
    An order of seizure and sale on such special mortgage without rendition of an account fixing specific amount due a minor, and authentic evidence of the exact indebtedness is premature and unauthorized,
    The special mortgago docs not import a confession of judgment for any specific amount. 22 A. B, 267; 1 A. B. 279; 31 A. B. 279 ; 31 A. B. 217.
   The opinion of the Court was delivered by

Levy, J.

Joseph Ritter is the dative tutor of the minors," Joseph A. and Louis Faessel, issue of the marriage of Louis Faessel with Magdelena Ritter, both said spouses being now deceased. On the death of their mother, Magdalena, these minors inherited her community interest in the property acquired during the marriage, and the father duly qualified as natural tutor. The value of the interests of the minors was fixed at the sum of $11,140.50, and to relieve his property from the general mortgage in favor of his minor children, in pursuance of the advice of a family meeting, the father executed a special mortgage upon certain property therein described, to secure the payment of said indebtedness to his children,' which is specially acknowledged in the act of mortgage, and which was thus mortgaged, by the terms of the act itself, “ to secure and protect the interests of his said minor children, in and to the succession or estate of their deceased mother, Magdalene Faessel, amounting to the sum of $11,140.50, as well as to secure his, said appearers, faithful performance and discharge of his duties as their natural tutor, as aforesaid, and in lieu of the general mortgage then existing on all of said appoarer’s property.”

Louis Faessel contracted a second marriage with Anna Betz, and left several children by this last marriage, and on his death, his surviving widow qualified as natural tutrix of the last children, and in that capacity administered the succession of said Louis Faessel.

Joseph Ritter, the dative tutor, applied for, and obtained an order and writ of seizure of sale of the mortgaged property, and the surviving widow and natural tutrix has taken this appeal from the judgment granting the writ of seizure of sale.

The grounds urged for setting aside the order of seizure and sale, are :

1. “ That the special mortgage given by the natural tutor to secure the rights of his minor children, and the faithful performance of his duties as tutor, is not exigible until one of the minors attains his majority, when he can proceed to sale of property mortgaged after discussion of the other property of the debtor.”

2. “An order of seizure and sale on such special mortgage, without rendition of an account fixing specific amount due a minor, and authentic evidence of the exact indebtedness, is premature and unauthorized.”

3. “ The special mortgage does not import a confession of judgment for any specific amount.”

The right of a tutor to grant a special mortgage and thereby release all Ms other property from the effect of the general mortgage, is granted by an express provision of our Code, and in order to enforce such spe-' cial mortgage, all the textual requirements must necessarily' be strictly complied with. Articles 330 to 333, R. C. C., grant the right and point out in detail all the essential requirements to be observed in the enforcement of the remedy.

In appeals from judgments in executory process, ordering the writ of seizure and sale, the Appellate Court is confined to the consideration of the question as to whether the order is based upon sufficient and authentic evidence, and includes an examination, primarily, into that as to whether the case is one which in its very nature is entitled to the executory process. This kind of special mortgage is, in its enforcement, restricted to the provisions of the law which first authorizes its execution for a particular purpose, and then prescribes the manner in which it shall or may be alone enforced. Here the record does not show that either of the minors has attained the age of majority, or has been emancipated; that a family meeting has been convened and advised as to the sale of the property, that there has been a decree of the Judge as provided for. In the absence of this evidence, we think the order for the sale wasimprovidently made.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and that the appellee pay the costs of both Courts.

On Application for Rehearing.

Todd, J.

The rehearing is asked for upon the ground that the Court erred in construing Article 333, as applicable to the case, and basing the reasons of our judgment on that Article.

Upon a re-examination of the case, we are free to admit that the Article referred to is not strictly applicable to the facts of this case, but, at the same time, we cannot for this reason change our decree.

The order of seizure and sale, issued upon a special mortgage executed by a father and natural tutor in favor of his minor children. The act of mortgage declares that it was given to secure the interest of said minors in and to the succession of their said deceased mother, and to secure the faithful performance and discharge of his duties as their natural tutor.” The record does inform us how many years elapsed from the appointment of the tutor till his death, but it was not alleged in the petition for the order of seizure and sale, that any account of tutorship had been rendered previous to the death of the tutor, fixing the amount of his liability to his children, and there is nothing in the record by which the amount of his indebtedness to his wards can be ■ascertained. In the absence of such evidence, determining the exact sum owing by the deceased tutor, which the mortgage was given ,to secure, executory process could not legally issue to enforce the mortgage. The mortgage does not import a confession of judgment for any specific amount. Wliat the tutor may have owed his wards when the mortgage was given, is no test of his indebtedness to them when his tutorship terminated.

The proceeding under this state of facts was unauthorized. C. C. 325; 31 A. 217.

Eor these reasons, our former decree should remain undisturbed.

Rehearing refused.


author: Poché, J. Todd, J.

text:
    No. 7226.
    Ermance de St. Romes vs. The Levee Steam Cotton Press Company.
    In an exception as to want of proper parties, it is not necessary to give the names of those who should have been joined. It is sufficient to allege that the parties referred to in the exception were parties to a certain designated suit, the record of which is offered in evidence on trial of exception. A judicial admission by the author of the plaintiff’s title, of having transferred the property to other persons than the plaintiff during the period of said author’s ownership of the thing, and before the beginning of the plaintiff’s claim thereto, is of equal authority to a formal transfer made by such party, to prove an interest in other parties who, it was claimed, should be joined in the suit.
    APPEAL from the Third District Court for the Parish of Orleans. Monroe, J.

      Chas. Lauque and J. Q. A. Fellowes, for Plaintiff and Appellee.

      Chas. F. Claiborne, for Defendant and Appellant:
    When A sues a corporation to claim dividends or ownership of certain shares which he alleges the corporation illegally allowed to be transferred to B by C, pretending to act as hie agent, B, who has the certificates of the corporation for the shares, and in whose name they are recorded upon the boohs of the corporation, is a necessary party to the suit. 20 A. 381, 383; 32 A. 546; 40 G-a. 408.

      Miller, Finney & Miller, on the same side.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff seeks to recover payment of dividends on sixty-six shares, of one hundred dollars each, of the stock of the defendant, alleged to be her property by inheritance from the succession of her brother, Ernest de St. Romes, to whom they had been transferred by her mother, Wid. J. C. de St. Romes, the original holder of the same.

The defendant, by way of exception, urged:

1. Want of proper parties necessary to a final adjudication.

2. The plea of lis pendens growing out of the existence of a suit in the name of Widow de St. Romes against the same defendant, for the recovery of the same dividends accrued on the identical shares of stock.

3. The exception of no cause of action.

4. The plea of prescription of one, three, five and ten years.

Upon the judgment of the court, overruling all its exceptions, and specially reserving the benefit of suoli exceptions, tlie defendant then filed a general denial, followed by a special averment, charging'that the 06 shares of stock declared upon by plaintiff, bad been disposed of by Widow de St. Romes in July, 1853, and through her agent and attorney in fact, Deverges, had been transferred in fall ownership to 0. A. Cohen, who had in turn sold them to Peschoir & Forstall, that the latter had sold them to A. & M. Heine, by whom they had finally been transferred to Alexander Smith, Gustave Milteuborger and W. O. 0. Claiborne, to whom the dividends sued for bad been paid as they bad accrued; and called said transferrecs in warranty.

On motion of plaintiff, tho call in warranty was stricken out, and a trial on the merits resulted in a judgment for $9,900 in favor of plaintiff, and defendant appeals.

The issue raised by defendant’s exception, suggesting want of proper or necessary parties, presents to our minds a question of vital importance to the case in its present attitude, and requires a clear solution before any inquiry can be made into tho nmnorous other points presented by the pleadings.

The groundwork of plaintiff’s action is her ownership of the stock, on winch she claims dividends, as the latter belong and can be allowed only to the legal owner of the shares of stock to which they have accrued.

The judgment of the court allotting the dividends must follow, and is the inevitable result of a conclusion reached as to the true ownership of tlie stock.

In other words, the court, believing that the stock declared upon belonged to one person, could not decree*, the dividends accrued during, and covered by’that ownership, to another person. Hence, it follows that a party suing for dividends on stock, must prove, satisfactorily, that he was the owner of the stock to which accrued the dividends which he claims.

The theory of plaintiff, flint because in this suit slie claims only dividends, and does not seek to bo recognized as owner of any shares of stock in the defendant company, her ownership or title to the shares, which she declares upon, is not involved as a question in the case, would lead to the conclusion that the fruits yielded by property from the operation of the law,” did not in law belong to tlie owner of that property, a proposition repugnant alike to reason and to tlie textual provisions of our Civil Code. (Art. 499).

It is, therefore, clear, that plaintiff’s ownership of the stock during the years for which she claims dividends, is an essential condition of her recovery in this ease.

Now, in its exception, defendant suggests that the stock claimed by plaintiff stands in its books in the name of other parties to whom they had been transferred by the agent of the original holder, who is also the alleged author of plaintiff; and thus defendant presents a question of title which underlies the whole case, and must, of necessity, be decided as a preliminary stop to an adjudication on plaintiff’s demand. Hence, the alleged transferrees disclosed by defendant, are vitally interested in this controversy, both to the extent of the value of the stock declared upon by plaintiff, and of the amount of dividends which they may have wrongfully received as the pretended owners of the stock in question.

Will our law tolerate the judicial condemnation of a party without a hearing? Can we render a judgment under which these transferrees may be dispossessed of valuable property and rights, without giving them a hearing ?

It is elementary that a judgment rendered under such pleadings could not bind these transferrees, if adverse to their rights, audit is equally clear that sucha judgment, if adverse to plaintiff in this suit, would not conclude her from testing the title of these transferrees to this stock, in a different suit or proceeding.

Such a judgment would, therefore, be barren of any practical result on the vital issue presented in the case, and could find no sanction in law or authority.

Litigation touching these identical aliaros of stock, which has been violent, persistent, and very protracted, furnishes a decision in 20 A. 331, in which this ruling finds strong support.

In that case, Widow J. O. de St. Romes recovered judgment for dividends on these shares of stock for several years previous, and up to 1853, covering the time of her undisputed ownership. But, as she had also prayed for recognition of her title to the stock, since the alleged transfer of the same by her agent, the court refused to pass on that question, because “ the alleged transferee was not a party to that suiV

And for the same reason the court could not have allowed to Mrs. de Romes, or to the present plaintiff, the dividends or the fruits yielded by that property, for any year subsequent to 1853, or for any time for which such dividends would have been claimed by, or would havebeen paid to such alleged transferree.

The present Court applied the same rule, both on reason and on the authority of the case just quoted, in the case of Keid vs. Commercial Insurance Company, 32 A. 546.

The demand in this case is restricted to the recovery of dividends, without any reference to, or allegation of, the illegality of the transfer of the stock; the petition contains no complaint against the Company for a wrongful recognition of the transferred claim, and contains no prayer for damages against the Company for such wrongful acts.

We, therefore, conclude that the right of plaintiff to recover dividends in this suit, depends essentially and absolutely on her right of ownership of the sixty-six shares of stock, which she declares upon ; and said stock being claimed by third persons, the adverse rights of such persons cannot be disposed of in a suit to which they are not parties, and that the District Judge erred in overruling defendant’s exception based on these legal grounds.

This conclusion precludes the necessity of inquiring into the other numerous points raised in the pleadings.

The judgment of the lower court.'is, therefore, annulled, avoided and reversed; and it is now ordered, adjudged and decreed, that defendant’s exception of want of proper and necessary parties be maintained, and that plaintiff’s action be dismissed at her costs in both Courts.

Chief Justice Bermudez, having been of counsel in this case, recuses himself.

On Application nor Rehearing.

Todd, J.

The plaintiff’s counsel, in their argument of their motion for rehearing, urged that the Court was in error in sustaining the exception as to want of proper parties, for the reasons :

1. That the exception did not name whom the parties were that should have been joined in the suit.

2. That no proof was made as to the alleged transfer of the stock add the consequent interest of the transformes in the suit, and that until the parties were named and satisfactory proof made of said transfer, that the question as to want of proper parties could not be considered, much less determined.

First. It is true that the names of the parties alleged tobe interested are not specifically set forth, but they are alleged to be the defendants in a certain suit, the record of which suit, was offered in evidence on the trial of the exception. This was a sufficient designation and identification of the parties. Id cerium est qu,od certum reddi potest.

Second. The same record shows that the plaintiff in that suit, who was the author of plaintiff’s title to the shares of stock in question, declared in her petition that certain persons, made defendants therein, claimed an interest in said stock, by virtue of alleged transfers made originally by one claiming to belter agent therein, and whose authority was denied.

The plaintiff in the instant ease, claiming under the plaintiff in the former suit, was bound by her judicial admissions, and such admissions were quite as effective in establishing an interest in the parties referred to, or at least a claim on their part to the stock, as a transfer, or what purported to be one, would have been.

In the petition for a rehearing, plaintiff’s counsel allege that the case in 32 A., referred to in our opinion, should not be cited as a precedent. The sound ruling in that case needs no special endorsement to be cited as authority.

It is the more applicable to the present case, as it rests mainly on two decisions of this Court, made in suits by plaintiff’s author, against the same defendant, and in relation to same subject of controversy.

The exception should not have been dismissed by the court a qua, and was properly sustained by- our decree.

Rehearing refused.

The Chief Justice recuses himself, having been of counsel.


author: Poems J.

text:
    No. 8142.
    Madison Carroll et al. vs. S. H. Scheen et als.
    In case of variance in tlie sheriff's deed of sale and his return on the writ, as to tlio identity of the adjudicates, it is the deed of sale which governs. Though the adjudicatoe in this ease signed the deed of sale as tutrix, the sheriff’s recital in the deed showing that the adjudicates bought the property in her personal and individual capacity, the title is hers and not her ward’s. The sheriff’s deed is complete without the adjudicates’s signature, which adds nothing to it, nor detracts anything from it.
    APPEAL from the Tenth Judicial District Court, Parish of Red River. Logan, J.

      Jos. H. Pierson, for Plaintiffs and Appellants.

      L. B. WatMns, for Defendants and Appellees:
    The plaintiffs claim title under the recital contained in the sheriff’s return, to the effect that the property “ was adjudicated to Elizabeth A. Bolden, tutñx," etc. T. p. 85 et seq.

    The defendant claims title under the recitals and terms contained in the sheriff’s proces verbal to the effect that11 Mrs. Elizabeth A. Bolden, widow of Madison Carroll, by her agent and attorney in fact, T W. Abney, being the last and highest bidder, became the purchaser,” etc. T. p. 86 et seq.

    Also stating: “I, Samuel Parsons, sheriff^ * * * do hereby sell, transfer, set over, and deliver unto the said Elizabeth A. Bolden, widow of Madison Carroll, * * * all the right, title and interest,” etc. T p. 86 et seq.

    The formal, written proces verbal of sale is the sole and exclusive evidence of title to property adjudicated at a sheriff’s sale. The return may be explained. Hughes vs. Harmon, 7 H. S. 228; jDufour vs. Crawford, ll M. 675; C. P. 690, 691, 692, 693, 694, «697, 698.
   The opinion of the Court was delivered by

Poems J.

The facts of this case are as follows:

Madison Carroll, who was separated in property, by judgment, from his wife, Elizabeth A. Carroll, died intestate in 1867, leaving five minor children, issue of his marriage with said surviving- wife.

Among other assets of his succession, was a claim of $4,625.68 against Robert Stotliard, secured by mortgage on a tract of land, which his widow seized in execution of the claim, and which was adjudicated to her in August, 1868, for $2,450.

After the death of Mrs. Carroll, who, in the meantime had sold one-half of this land, which forms a, part of the Town of Conshatta, to M. H. Twitcliell, the remainder was inventoried as belonging to her succession, of which Madison Carroll, Jr., one of the plaintiffs herein, was one of the executors; and at a probato sale in October, 1877, was adjudicated to J. II. Scheen, one of the defendants in this case.

Plaintiffs, three of the five heirs of Madison Carroll, now of age, alleging that the purchase made by their mother in August, 1868, was made in her capacity of tutrix, for the account and benefit of her minor children, claim to be the owners of three-fifths of the half of that land which they allege to have been illegally sold in 1877, as the property of their mother.

Mrs. Lisso and Mrs. Scheen, to whom the property has been transferred since the institution of this suit, intervene and join the defendant, in maintaining the legality of the latter’s purchase, which rests on the allegation that the purchase of Mrs. Carroll, in 1868, was for her own personal and individual account, and not in her capacity of tutrix, or for the account and benefit of her children.

In the sheriff’s deed of the adjudication made by him in August, 1868, of this property, in the suit of Elizabeth A. Bolden, (Carroll) tutrix, etc. vs. Robert Stotliard, the sheriff recites that, “ Mrs. Elizabeth A. Bolden, widow of Madison Carroll, by her agent, T. W. Abney, being the last and highest bidder, became the purchaser thereof,” etc., etc. Wherefore, the said sheriff declares that he sells, transfers and delivers unto said Elizabeth A. Bolden, all the right, title and interest, etc., * * in said land and property. This deed is signed by the sheriff, and by Mrs. E. A. Carroll, u tutrix and plaintiff,” and was registered in the conveyance office on August 13,1868, in the. Parish of Natchitoches, and on November 27, 1878, in the conveyance office of the Parish of Red River, a new Parish, taken in part from Natchitoches.

In his return on the writ of seizure and sale, the sheriff recites that the adjudication was made to Elizabeth A. Bolden, tutrix, and that the. purchase price, less costs, was retained by her in her capacity of tutrix of the minor children of Madison Carroll, etc.

The same declaration, as to the purchase price, was contained in his deed.

Relying upon the recital in the sheriff’s return, on the fact that Mrs. Carroll signed the sheriff’s deed in her capacity of tutrix, and on the additional fact that the claim on which execution had issued was the separate property of their father, plaintiffs contend that the purchase was made for their account, and that having ratified the same at their age of majority, they are joint owners of the property.

No importance can be attached in law to the fact that Mrs. Carroll signed the deed in her capacity of tutrix and plaintiff, because the deed is complete without the signature or formal acceptance of the purchaser.

The law (C. P. Art. 692) requires the sale to be made by, and in the name of the sheriff of the Parish where the seizure was made, to be signed by him in his official capacity, with a mention of the place, the day,, the month and the year in which was passed.

It is thus apparent, that the deed is intended to be an official document, deriving its vitality and authenticity from the signature of the sheriff, and that the law does not require or even contemplate the participation of the purchaser, whose signature can add to, or detract no force from the act. Hence, the signature of Mrs. Carroll, in her fiduciary capacity, could not alter or modify the sheriff’s declaration in the body of the instrument, as to the description of the purchaser, and for the purposes of this case, her signature is to be considered as unattached to the deed.

As there is a variance between the sheriff’s return, and his deed of sale, the question for solution in the ease is, therefore, which of the two instruments must prevail. >

A careful examination and comparison of the various Articles of the Codo of Practice, on the subject, as expounded by this Court in several decisions, has led us to the conclusion that, in such a case, the sheriff’s deed must prevail. His return on the writ is a mere recital or account of the manner in which he has executed the mandate of the court, whereas the deed must contain that same recital, and must conclude by a sale of the property to the highest bidder ; the return is to be filed with the papers in the cause, the deed must be recorded in the proper office, and delivered to the purchaser, and is declared to be the muniment of the latter’s title.

In the case of Durnford vs. Degruys, 8 M. 222, this Court said: “The law requires the sheriff to make out and deliver a deed of sale to the ' buyer, and this is the period at which the property passes; till then the conveyance is inchoate.”

The same doctrine was recognized in 11 M. 675, Dufour vs. Camfrane, and in 14 L. 22, Baily vs. Percy, where the Court, affirming- the decision in 11 M., used the following language: The sheriff’s sale is the last act under the execution, and the only one which fixes the condition of the purchaser under it.” See also, 29 A. 607, Hunter vs. Buckner & Bro.

In fact, it is almost elementary, that the rights of the purchaser at an execution sale, are to be tested under the terms of the sheriff’s deed, which is the legal proof required by law of the adjudication, under which the rights and titles of the seized debtor are transferred to the purchaser.

Under the deed in this case, the property was acquired by Mrs. Carroll, personally ; it was properly inventoried as her property, and under the sale of October, 1877, the titles of her succession were legally transferred to Seheen.

Admitting that the mortgage claim of $4,625 was the separate property of Carrol], which is denied by-defendants, this can be of no avail to plaintiffs, and can operate no injury to defendants.

As tutrix, Mrs. Carroll had the right to retain the amount of her purchase price, for which she became personally indebted to her children, who remained creditors of the debtor, Stothard, for the unsatisfied balance of the claim, the difference between $2,450 and $4,625.

The long list of authorities quoted by plaintiffs, for the purpose of showing that minors may, when they become of age, ratify contracts made in their behalf, or revendicate their property illegally alienated, can have no application to this case, which presents for issue, only the-question which we have solved in this opinion.

On plaintiffs’ own suggestion, a judgment of non-suit was entered against them, for another piece of property which they had claimed in this suit, as belonging to their father’s succession.

The judgment of the lower court, in favor of defendants, is, therefore, affirmed at appellants’ costs.

Mr, Justice Levy recused.