text:
    No. 1452.
    S. Gumbel & Co. vs. C. B. Andrus et al.
    An attachment by an individual creditor for his own benefit will not be maintained pending a cession.
    After the property of an insolvent has been sold it can not be seized by an individual creditor by attachment, who alleges that the insolvent has been convicted of fraud, and that his property is situated as though no surrender had eyer been made.
    The conviction of the insolvent debtor of fraud does not have the effect of annulling the cession accepted by the creditors. The effect of the conviction operates only on the debtor, depriving him of the benefits of the insolvent laws and subjecting him to the penalty of imprisonment.
    APPEAL from the Eleventh District Court, Parish of St. Landry. North Gullom, J.

      Thomas H. Lewis and Lazarus, Moore & Lemle for Plaintiffs and Appellants.

      Kenneth Baillio for Defendants and Appellees.

      Estilette & Dupré and G. F. Garland for Intervenors and Appellees.
   The opinion of the court was delivered by

McEnery, J.

On the 25th day of November, 1890, the defendant C. B. Andrus filed a petition to obtain the benefit of the insolvent laws.

On this petition and a sworn statement of his assets and liabilities, and a list of his creditors, the district judge accepted the cession for the creditors and fixed a day for the meeting of creditors, and issued the usual order for a stay of proceedings against the person and property of the insolvent.

On the application of several creditors a provisional syndic was appointed, who qualified.

In compliance with the order of court a meeting of creditors was held, the cession accepted by a majority in number and amount of said creditors, who voted to accept the cession and to grant the debtor a discharge.

Oppositions were filed by several creditors charging the insolvent with fraud. At the December term of the District Court, in 1892, this opposition was tried, and a jury returned a verdict finding the insolvent Andrus guilty of fraud in his cession proceedings. On this verdict of the jury the district judge rendered judgment declaring said cession fraudulent, but declined to annul the cession in its entirety. The judgment was signed on December 27, 1892.

The plaintiff creditor filed this suit, accompanied by attachment, on November 16, 1892. The ground for attachment was that the defendant had mortgaged, assigned and disposed of his property, rights or credits or some parts thereof with the intent to defraud his creditors or to give an unfair preference to some of them, and that he had converted his property into money, or evidences of debt, with intent to place the same beyond the reach of his creditors. The funds of the insolvent estate in the hands of the provisional syndic were seized under the writs of attachment, as a third party, having under his control or in his possession rights and credits belonging to the insolvent debtor.

Several privileged creditors intervened in the suit. The defendant and these intervenors filed an exception to dismiss the suit on the ground of no cause of action.

The provisional syndic was made a party to the suit and filed the same exception.

The exception was maintained. The district judge was recused, and the judge ad hoc who tried the case rendered an able and exhaustive opinion for his ruling.

The suit was filed after the verdict of the jury, but one month prior to its being signed by the judge. The verdict standing by itself was inoperative. It had to be merged into a judgment to become effective.

The insolvent debtor had the undoubted right to file a motion for a new trial. Until the judgment became definitive the staying order remained in force. This case comes directly within the rule laid down in Mitchel vs. Dalton, 44 An., where the grounds for the attachment were the same as the instant case. We said in that case: “ The allegations of the plaintiff in his petition, that the defendants were insolvent and that they had defrauded, or were about to defraud, their creditors, made at the time, under the circumstances, in manner and for the purposes as they were, did not warrant the course pursued in the matter by the plaintiff.” In that case, as in this, the plaintiff pursued the insolvent in disregard of the staying order, and attempted to subject property on the schedule of the insolvent to his individual debt.

The suit of the plaintiff being in violation of the preliminary restraining order granted in the insolvent proceedings is irregular and void, being directly in the face of a prohibitory law.

The suit of the plaintiff is also based on the idea that a conviction of the insolvent for fraud in the insolvent proceedings annuls all the insolvent proceedings, restores the property to him, which can be seized by individual creditors as though no surrender had ever been made.

We are unable to find any law to sustain the views presented by plaintiff.

When the debtor surrenders his property he relinquishes it in favor of all his creditors. O. O. 2170.'

He has no control over it whatever. He has nothing to say about its administration or disposition. He has only the right to redeem it by paying the amount of his debts, and a residuary interest in case, after its sale, there should be something remaining.

The provision of Act 2175, which says that the surrender does not give the property to the creditors; it only gives them the right of selling it for their benefit and receiving the income of it until sold— means only that the debtor has a contingent interest in it only on paying the debts and taking the property back, and receiving the residuum after its administration by the creditors.

The insolvent law in consideration of an honest surrender of property grants to a debtor a discharge of his debts, freedom of his person and property from judicial pursuit. If convicted of fraud these privileges are denied him and punishment by imprisonment is also visited upon him. The conviction can in no way affect the property. To deprive the creditors of the right they have acquired on it by the conviction of the insolvent debtor would in effect be to punish the creditor.

When the surrender is made all the debtor’s property passes into the insolvency, whether on the schedule or not. It is all pledged to the creditors for their common benefit. They accept the surrender with this understanding, and no act of the debtor can divest their qualified ownership of the property, except a repurchase of the property by payment of the debts.

The death of the debtor does not change the qualified ownership of the surrendered property. If he dies before the sale his succession retains the same right to redeem and to the surplus that the debtor had, but the creditors retain and hold the property in the same manner as they did before the death of the debtor. O. O. 2180.

We have not the authorities before us, but we confidently assert that in the administration of the United States bankrupt law a single instance can not be found where the insolvent was convicted of fraud and his estate was taken from the jurisdiction of the bankrupt court. It always continued in the hands of the assignee for final distribution among creditors.

The plaintiffs are attempting to seize the funds in the hands of the syndic, which is the common fund of all the creditors, and subject it to their individual benefit.

As we have stated in the case of Morris McGraw et als. vs. Andrus, the effect of such a proceeding, if the circumstances justified it, would be to bring the property if not on the schedule into the insolvency for the common benefit of all the creditors.

The property of the insolvent has been sold and the proceeds are in the hands of the syndic. There is no property, on the theory of plaintiff, in existence that can revert to the insolvent debtor. The surplus only could be demanded. But the fund belongs to all the creditors, and it must be administered for their common benefit. After the property has been sold the debtor’s right to redeem it has passed. Under the facts of this case, conceding that the verdict restored the property to the debtor, what would go to him? Only the surplus after paying all his debts. No surplus is alleged in the petition. On the contrary, the insolvency of the debtor and defendant is affirmed. The petition discloses no cause of action.

Judgment affirmed.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 1441.
    M. O. Broussard vs. Felix Broussard. M. Manade, Warrantor.
    1. Whatever the secret equities between a vendor and vendee, and whatever their rights as between themselves, the former, who has placed on the public records a title valid on its face, can not urge such equities against a bona fide purchaser for value from the vendee, who acted on the faith of such recorded title.
    2. This principle applies to married women who, in the exercise of powers conferred by law, have executed apparently valid sales of their paraphernal property.
    3. The fact that the vendor has retained possession of the property sold might, in some cases, suffice to put the subsequent purchaser on his guard and impugn his good faith, but such fact loses all significance when his purchase has been made with the full knowledge and approval of the vendor and under her assurance that the vendee had the full right to dispose of the property.
    4. The protection accorded by the law to married women can not be distorted into a means of defrauding innocent persons_who have acted upon the faith of titles passed by them, apparently valid and fully warranted by law, and of their own representations to the same effect.
    APPEAL from the Seventeenth District Oourt, Parish of Vermilion. Allen, J.

      L. L. Bourges for Plaintiff and Appellant.

      W. W. Edwards and W. A. White for Defendant and Appellee.

      Estillette & Dupre for the Warrantor.
   The opinion of the court was delivered by

Fenner, J.

This is a petitory action wherein plaintiff claims the ownership and delivery of certain lands which, she alleges, are in the possession of the defendant as a mere trespasser.

The defendant denies plaintiff’s ownership and sets up title in himself.

A statement of the admitted or indisputable facts presented by the record subjects the case to the application of clear principles of law which leave little difficulty in its decision.

It is not denied that, in 1868, plaintiff, a married woman, separated in property from her husband, acquired the property in controversy with other property by valid title and held the same as her paraphernal property.

On the 1st of January, 1879, she executed an act of sale, in authentic form, of the property thus acquired, to her brother-in-law, Joseph S. Nunez, which purported to convey the property to him with full warranty and for a definite price, which, she declares in the act, was then and there paid to her, partly in cash and partly in notes. She was properly authorized and assisted by her husband, and the act was duly recorded. On June 28, 1888, Joseph S. Nunez executed an act of mortgage on a part of the property in favor of Manade & Pedaré to secure the payment of a note given for advances made and to be made during the year to J. S. Nunez, to enable him to cultivate his sugar plantation under the superintendence and management of his brother, Demosthene Nunez,” plaintiff’s husband. The plaintiff, authorized by her husband, was a party to the mortgage and signed the note as solidary security.

In 1886, Manade & Pedaré, who were aliens, brought suit, via ordinaria, in the United States Circuit Court on this note against both J. S. Nunez .and the plaintiff; both were personally cited, and, making no appearance, judgment by default was duly entered and confirmed whereby both were condemned in solido, and the mortgage was recognized and ordered to be enforced. On this judgment a writ of fi. fa. was issued in January, 1887, under which the mortgaged property was seized; notice of seizure was served on plaintiff and her husband, as well as on J. S. Nunez personally; the property was duly advertised, appraised and sold, and was adjudicated to M. Manade, one of the judgment creditors. Shortly thereafter, on July 6, 1887, Manade sold the property thus acquired to Felix Broussard, the present defendant, who received and has held possession, without objection or interference by plaintiff, up to the date of the institution of this suit.

On the same day, Joseph S. Nunez transferred to defendant the remainder of the property sued for in this action, by an act of exchange, by which defendant, in consideration for the same, transferred to Nunez a valuable plantation belonging to him. The plaintiff and her husband were both cognizant of this exchange, approved and encouraged it, and plaintiff advised defendant to make it. After the exchange plaintiff removed from the property to the plantation received from defendant, and lived upon the same until it was seized and sold in satisfaction of debts of Jos. S. Nunez.

Such are the titles propounded by defendant in opposition to the plaintiff’s demand.

The present action is doubtless prompted by the judgments rendered by this court in the eases of Broussard vs. Sheriff et al., 44 An. 881, and 43 An. 939.

Those were actions brought by the present plaintiff to restrain the sale by ¡creditors of J. S. Nunez of certain property different from that herein involved, but covered by the same sale of January 1, 1879, from plaintiff to said Nunez hereinabove referred to, and to have said sale pronounced a nullity on the ground that the sale was simulated and fraudulent, and executed under the influence of her husband, merely as a pignorative contract intended as security for his debt, in violation of a prohibitory law, and, therefore, null and void. Our judgment annulled that sale and perpetuated the injunction.

But in those cases we were dealing with simple judgment creditors of Jos. S. Nunez, who were seeking to subject to the payment of their debts property which, though apparently belonging to their debtor, did not really belong to him, but to another. They had paid no value and parted with no consideration on the faith of the apparent title. In this case we are dealing with the rights of a purchaser for value and in good faith, who acquired on the strength of the apparent title, valid on its face and with the full knowledge, approval and participation of the very party who now sets up its nullity.

In the very case above referred to (44 An. 833) we said: “It is quite true as a’matter of equity, and this court has repeatedly maintained the principle, that, in case a party in possession under a recorded title executes a special mortgage thereon in favor of a third and innocent mortgagee, who advances money upon it, he nor his vendor can successfully attack and defeat it, on making proof of secret equities and latent ambiguities in the title.”

It is true, it appears that J. S. Nunez did not take physical possession under the conveyance from plaintiff to him, but that fact loses all significance in view of the facts in this case. Plaintiff was herself a party to the act of mortgage from Nunez to Manade & Pedaré and a joint obligor on the note secured. She recited therein that the plantation belonged to Nunez and was only “ under the administration and management of her husband.” Moreover, she was a party to the suit enforcing the judgment, and, if she had any defence thereto, she should have urged it, and, not having done so, is bound by the judgment and by the execution and sale thereunder, of which she had full notice and which she recognized by promptly and peaceably delivering possession to the adjudicatee and his vendee. The verity and full consideration of the mortgage and the perfect good faith of Manade & Pedaré, the binding effect of their judgment obtained contradictorily with plaintiff, and the validity of Manade’s title as adjudicatee at a sale of which plaintiff had the fullest notice, do not and can not admit of question, and defendant’s acquisition from Manade is entitled to like protection.

The same principles apply to the exchange between Nunez and defendant. Plaintiff actively participated in promoting and bringing about said exchange, and she also participated in its execution by delivering possession of the property now claimed to defendant and by actually removing to and taking possession of the property received from defendant.

A feeble attempt was made to impugn the good faith of defendant in this transaction and to bring home to him notice of the unreality of Nunez’ title. This attempt is a failure. It rests exclusively on the testimony of Nunez, which is contradicted by defendant, and was not believed by the judge a quo. Whatever suspicion might have been aroused by the fact of plaintiff’s continued possession of the property was entirely removed by plaintiff’s own assurances as to Nunez’ right to dispose of the property and by her voluntary participation in the execution of the exchange. We consider that defendant has fully established his position as a purchaser in good faith and for value on the faith of apparently valid recorded titles.

It is settled in this court by a jurisprudence too inveterate to admit of question that “ whatever the secret equities between a vendor and vendee, the former can not claim them against a subsequent purchaser in good faith. Having placed on the public records the title on the faith of which such purchaser acquired, the vendor must bear the consequences of having presented the vendee’s rights in a false aspect.”

Hennen’s Dig. Sale V (a), No. 1, and numerous authorities there quoted.

Plaintiff had full power and authority to make the sale to Nunez, and, upon its face, it waa as valid a title as if made by a man or femme sole. The doctrine above quoted has been applied to a married woman in such case, and it was held that “ threats and undue influence of the husband to induce his wife to sign an act of sale of her paraphernal property to B can not affect the rights of 0, a bona fide purchaser from B.” Blanchard vs. Castile, 19 La. 362.

The equity of the doctrine is well expounded by Ohief Justice Marshall in the following language:

“ If a suit be brought to set aside a conveyance obtained by fraud, and the fraud be clearly proved, the conveyance will be set aside as between the parties; but the rights of third persons who are purchasers without notice, for a valuable consideration, can not be disregarded. Titles, which according to every legal test are perfect, are acquired with that confidence which is inspired by the opinion that the purchaser is safe. If there be any concealed defect arising from the conduct of those who had held the property long before he acquired it, of which he had no notice, that concealed defect cannot be set up against him. He has paid his money for a title good at law; he is innocent, whatever may be the guilt of others, and equity will not subject him to the penalties attached to that guilt. All titles would be insecure, and the intercourse between man and man would be very seriously obstructed, if this principle be overturned.” Fletcher vs. Peck, 6 Cranch. 133.

Married women can claim no exemption from the application of these principles when acting within the powers conferred upon them by law. The principle heretofore announced by this court fully applies : ■>

“ While the law and the jurisprudence have at all times favored married women in the assertion and vindication of their rights, they have never intended and do not contemplate to protect them in the perpetration of fraudulent practices, for the accomplishment of villainous objects, by which to enrich themselves gratuitously at the expense of their unguarded and trusting neighbor, on whom equity keeps a watchful eye.” Henry vs. Gauthreaux, 32 An. 1108.

There are other principles of law equally antagonistic to plaintiff’s claims in this case, but we deem the above conclusive and sufficient.

Judgment affirmed.


text:
    No. 1449.
    Parish of St. Landry vs. Joseph Bloch.
    1. Tlie Constitution defines the jurisdiction of justices of the peace and confines it to action as committing magistrates, having power to bail and discharge in certain cases.
    2. Justices of the peace have no jurisdiction to enforce penalties of fine and imprisonment imposed for violation of* parochial ordinances by criminal proceedings inaugurated by ordinary civil process and citation.
    8. An ordinance conferring such jurisdiction on justices of the peace is illegal and unconstitutional, and proceedings in exercise thereof are null and void.
    APPEAL from the First Justice of the Peace, parish of St. Landry. Brooks, J.

      E. B. Dubuisson for Appellee.

      Kenneth Baillio for Appellant.
   The opinion of the court was delivered by

Fenner, J.

This is an appeal from a judgment rendered by a justice of the peace, condemning the defendant “to be fined in the sum of $25 and the costs. of these proceedings, and in default of payment of same he be imprisoned ten days in jail.” The proceeding was for a violation of an ordinance of the police jury prohibiting the propulsion by steam of traction engines over the public roads of the parish, and providing that “ whoever shall violate this ordinance * * shall be deemed guilty of a misdemeanor, and upon conviction thereof before any justice of the peace shall be fined the sum of twenty-five dollars and the cost of the court, and in default of the payment of said fine and cost shall be imprisoned in the parish jail not less thaa five nor more than ten days.”

The obvious import of this language shows that the ordinance creates and defines a criminal offence, prescribes penalties therefor, and authorizes the prosecution and conviction of offenders before a justice of the peace.

The proceeding in this case was begun by affidavit, charging defendant with violating the ordinance “ contrary to the statutes of the State in such cases made and provided and against the peace and dignity of the same,” and concludes, “ wherefore affiant prays that the said Bloch be arrested and dealt with according to law.” The case has'ho feature of a civil suit. It is unquestionably a criminal prosecution, and this is evidently the proceeding contemplated and provided in the ordinance.

The plea of the illegality and uneonstitutionality of the ordinance was duly made and overruled, as also a plea to the jurisdiction.

These pleas should have been sustained. The ordinance could not constitutionally confer such jurisdiction on justices of the peace. Articles 125 and 126 of the Constitution of 1879 define the jurisdiction of justices of the peace, and they have no criminal jurisdiction except as committing magistrates, with “power to bail or discharge in cases not capital or necessarily punishable at hard labor.”

Whether, under Art. 3364 of the Revised Statutes, the fine imposed by the ordinance might have been recovered in an ordinary civil suit before the justice of the peace is a question not here presented. The ordinance does not contemplate such a proceeding and the case before us does not present such an one.

In two very recent cases, we held that justices of the peace had no jurisdiction to enforce penalties imposed for violation of parochial ordinances by criminal proceeding inaugurated by affidavit and arrest, but were confined to ordinary civil' proceedings by citation. State ex rel. Long vs. Justice, 44 An. 949; Board of Health vs. Justice, 45 An.

In Police Jury vs. Arleans, 34 An. 646, we very distinctly held that “a person can not be arrested under a warrant issued by a justice of the peace charging him with violating an ordinance of the police jury and sentenced to fine and, in default of payment, to imprisonment by said justice,” and that an ordinance authorizing such a proceeding was illegal and null and void.

Our conclusion on this point is so clear and so fully sustained by authority that we deem it unnecessary to consider any other.

It is therefore adjudged and decreed that the judgment appealed from be annulled and reversed at plaintiff’s cost in both courts.


author: Watkins, J.

text:
    No. 1431.
    D. J. Reid et al. vs. Thadeus Mayo et als.
    1. A lessee, in possession o£ a newspaper plant and paraphernalia thereto appertaining, can not convert himself into an owner thereof without the knowledge or consent of his lessor and by the unique and simple process of changing his name and capacity from editor and publisher to editor and proprietor.

      2. One purchasing such plant from the person who has thus sought to convert himself into an owner has the duty imposed upon him of scrutinizing the claims of the vendor, particularly if he has been advised of the previous existence of the relations of landlord and tenant.
    8 If, in addition, the proof shows thiit such purchaser has been fully advised and informed by the vendor of the source of his title, and of the negotiations through which he acquired title, lie can not found any equity or plead any estoppel raised on the aforesaid apparent change of proprietorship of the paper.
    APPEAL from the Twelfth District Court, Parish of Calcasieu. Fournet, J.

      Win.' F. Sehwing for Plaintiffs and Appellants.

      A. P. Pujo and Mitchell & Mitchell for Defendants and Appellees.
   The opinion of the court was delivered by

Watkins, J.

This suit has for object the recovery of a newspaper plant styled the Lake Charles Echo, and the paraphernalia appertaining thereto.

It is directed against Mayo as the party in possession claiming ownership; and against R. O. Gilliland as lessee, the relief demanded being the restitution of the property and the cancellation of the lease.

The property was sequestered by the plaintiffs and bonded by Mayo —Gilliland making no defence, and no one representing him at the trial.

The defence is a general denial, coupled with an averment that Mayo purchased from R. C. Gilliland, on March 16, 1892. And, in in the answer, is incorporated a plea of estoppel, by way of exception, to the effect that plaintiffs were precluded by their laches and negligence from asserting and setting up title in themselves.

Upon these issues the cause was tried and decided against the plaintiffs — the judgment rejecting the plaintiffs’ demands, dissolving the sequestration and reserving defendant’s right to sue for damages.

Plaintiffs, Reid and Andrus, claim to have acquired the property in controversy in 1890, from J. W. Bryan, for a valuable consideration actually paid by Reid, though title was executed in favor of Thomas Kleinpeter, who subsequently executed title to Reid for twenty-eight-thirtieths, and to Andrus for one-thirtieth — Kleinpeter retaining'title to one-thirtieth.

That the three organized a company, or copartnership, styled The Lake Charles Eeho Publishing Company, and in that capacity operated the plant.

That subsequently, Reid acquired the interest of Kleinpeter, and, on the 23d of June, 1891, the company leased the outfit to R. O. Gilliland for the term of one year, with the privilege of renewal for another year, at $100 per month, during the term of the lease — the lease being evidenced by a written argreement that was left in the possession of the lessee.

Petitioners declare that they are still the rightful and legal owners of the plant and property; that Gilliland has paid no part of the rent, or lease price thereof, and has violated and broken all of his engagements, and absconded, abandoning the property; and that Mayo has by some means acquired possession thereof and is claiming ownership, operating same to their detriment and injury, and is endeavoring to dispose of it against their will.

In the brief of defendants’ counsel we find the following admissions of fact, viz., that James W. Bryan sold and delivered the newspaper plant in controversy to Thomas Kleinpeter for the price of $5500, of which $3250 was paid in cash, and, for the residue, notes of the purchaser were executed, maturing during the year thereafter ensuing — the sale being evidenced by a notarial act, and same being duly recorded in the conveyance records of the parish. That upon the same day (March 14, 1890) Kleinpeter conveyed to Reid and Andrus twenty-nine-thirtieths interest in the plant, as stated in the petition, and that subsequently the three parties named formed themselves into a company for the publication of the newspaper, as plaintiffs allege.

They further admit that “ on June 23, 1891, plaintiffs leased to R. O. Gilliland the Eeho (newspaper), and that Gilliland went into possession as editor and publisher, with his name promulgated as such on the title page of the paper until the issue of February 5, 1892;” but they aver that in the issue of the paper under date February 12, 1892, Gilliland announced himself to be editor and proprietor, and that this announcement remained until the time of the sale of Gilliland to Mayo, on the 18th of March, 1892 — it being followed by the subsequent publication of Mayo’s salutatory in the issue of the paper under date of March 18, 1892.

It is further alleged and insisted upon that during the interval that intervened between the dates of the two announcements, “Mayo remained in quiet, open and undisputed possession of said paper as owner, without molestation, until the institution of this suit on the 3d of May, 1892.”

Up to this point the averments and admissions conclusively establish the plaintiffs’ title, and the possession of Gilliland as lessee under plaintiffs, on the 23d of June, 1891, and continuously thereafter to the 12th of February, 1892, at least.

It just as necessarily follows that defendant’s claim of title arose subsequently and must depend upon facts subsequently arisen.

Looking into the record we find the indicia of defendants’ title to be as follows, viz.:

First — A receipt, which is couched in the following terms, namely:

“New Orleans, March 8, 1892.
“ Received of R. O. Gilliland, representing J. H. Gilliland, the sum of five hundred dollars, first payment on Lake Charles Echo newspaper.
(Signed) “0. McD. Puckette.”

Second — A bill of sale from R. O. Gilliland to Thad. Mayo for the price of $2000 cash, expressing full warranty, bearing date March 16, 1892.

There is nothing to connect the title of Puckette with that of Reid, Kleinpeter & Andrus, nor is there anything pointing to the source of his title as being derived from any other person than the plaintiffs.

In this situation, it is manifest that the sole reliance of the defendants to cure this apparent defect is upon their plea of estoppel. In fact, counsel for defendant, Mayo, do not make any mention in their brief of his alleged title from Gilliland and Puckette, but rest their defence exclusively upon their plea of estoppel, formed upon the plaintiffs’ laches and negligence in asserting their claims.

It is quite true that, in the answer, there is an averment to the effect that, from the 12th of February, 1892, Gilliland (Mayo’s vendor) “ was in peaceable, public and undisturbed possession of said Lake Charles Echo, as editor and proprietor thereof;” and further to the effect “ that said Gilliland represented himself to the defendant as owner thereof, and believing such to be the ease, he pur-, chased from him in good faith,” etc. Yet,'in argument and brief, no stress is laid, or point made, upon the title he obtained from Gilliland and Puckette, and without which the possession and pretensions of Gilliland are vain and nugatory.

Roundly stated, we have for consideration and solution the proposition that Gilliland, as lessee of the plaintiffs in June, 1891, and continuously thereafter, until February 12, 1892, converted himself into an owner of the plant and property leased, during the term of his lease and without the knowledge or consent of the lessor, and by the unique and simple process of changing the name of the responsible head of the paper from “ R. O. Gilliland, editor and publisher ” to “ R. C. Gilliland, editor and proprietor.”

That, lorsooth, the plaintiffs did not observe that alteration and immediately protest against it, and failing to have this prolest heeded and to have at once brought suit, they are guilty of such laches and negligence as to preclude the assertion of their rights; defendant founding his claim upon this apparent change in the proprietorship of the newspaper and the alleged assertion of Gilliland’s ownership.

As a proposition of law the foregoing is altogether untenable, for, as a lessee of the plaintiffs, Gilliland was wholly without legal right to so alter or change his relations toward his landlords during the term of his lease, as to acquire the ownership of the thing leased, without the knowledge or consent of the lessors, and he could convey no better rights to a stranger. But Mayo confesses, and his counsel admit, that Gilliland occupied and operated the newspaper plant, as lessee of the plaintiffs, up to the 12th of February 1892, and consequently he was put upon his guard in reference to Gilliland’s right to sell.

The district judge in his reasons for judgment states that inasmuch as the law pronounces the nullity of the sale of a thing that belongs to another, the court would be at once satisfied of plaintiffs’ ownership if no plea had been interposed in bar of their recovery; and then states his conclusions to be that the following difficulties are in their way, viz.:

1. That prior to the institution of this suit neither of the plaintiffs had disclos'ed their names as owners of the paper.

2. That, construing their acts logically, they had purposely concealed any proprietary interest they had therein.

3. That they at first substituted Kleinpeter as the ostensible owner, and thereafter disguised their real ownership behind the mask of the Lake Charles Echo Publishing Company.

4. They then placed it under the control of R. C. Gilliland as editor and manager, and afterward the paper passed to R. C. Gilliland as editor and proprietor, who assumed that title at the head of the editorial columns of the paper without attracting attention, and, with respect to third persons, without objection on the part of plaintiffs.

5. That when the plaintiffs were informed that the defendant was bargaining for the purchase of the property, they maintained silence and made no protest against the accomplishment of an act in which he would have had such manifest interest if he had been owner.

His observations are thus concluded:

“Not only before the sale was effected did he fail to warn defendant, Mayo, and put him on his guard when he had an opportunity to do so, but that he preserved the same policy of silence after the sale to Mayo, and made no demand for the restitution of the property, and allowed the defendant to quietly take possession of the property, and for nearly two months failed to signify by word or deed that he laid any claim to the property.”

As opposed to the foregoing inferences which the judge a quo has drawn from the evidence in substantiation of the defendants’ plea of estoppel, the testimony shows that the plaintiffs had not observed the change Gilliland had made in the apparent proprietorship of the paper, and that same had been made without his knowledge or concurrence; yet Mayo was informed of the fact on the very day same occurred. It further shows that just as soon as Reid was advised of Gilliland’s contemplated sale of the plant, he interviewed him on the subject, and he disavowed any such intention in the strongest possible language.

Assuming this statement to be true, what was the necessity for Reid to have taken the additional precaution of forewarning Mayo, when no sale was contemplated by Gilliland. Conceding it to have been a fact that Mayo was advised of the ostensible change in the proprietorship of the paper, was it not his duty to have mentioned to Reid his contemplated purchase from the person whom he knew to have been his tenant? And if Reid acted improperly in not disclosing his ownership, did not Mayo act just as imprudently in not making proper inquiry into Reid’s claim of ownership?

These questions must receive an affirmative answer. But there are other facts that must be taken into account, also, in determining-the efficacy of the defendant’s plea of estoppel.

In the first place, Bryan sold the newspaper plant to Kleinpeter in 1890, and executed a notarial act of transfer, and caused same to be recorded in the conveyance office; and Mayo, being clerk of court at the time, was aware of that fact, confessedly.

More than a year previous to his purchase of Gilliland, Mayo was informed that Kleinpeter had sold the paper, and was likewise advised that the plaintiffs were the persons composing the Lake Charles Echo Publishing Company.

As a witness Mayo states that seeing the name of Gilliland at the head of the paper was the first direct information that he had that he was owner of the paper. But this question is not open to inference, as the judge a quo submits, for the plain reason that the testimony of ihe defendant is full upon the subject. He makes the statement that he asked Gilliland “if the paper belonged to him, and he answered that his father, J. H. Gilliland, was negotiating to purchase the paper, and as soon as the trade was made he would let him know, and that he was expecting his father every day; that his father came a short time afterward, and R. O. Gilliland came to him and asked him to go around and see his father at the Howard House, his father having come in late the night before and wanted to get off to New Orleans on the 11 a. m. train; that he went with him and met his father, J. H. Gilliland, who informed him that he was then on his way to New Orleans to close his trade for the Lake Oharles Echo, and that if he made the trade he would let B. G. Gilliland his son,, know, and any trade he (Mayo) might make with his son would be all right. Several days afterward, R. O. Gilliland informed him that the trade was made, and he (R. O. Gilliland) announced his name as editor and proprietor. That he then commenced negotiating with B. G. Gilliland for the paper, which was finally consummated on the 16th of March, 1892.”

This testimony clearly indicates that instead of Mayo having been deceived by appearances in regard to Gilliland’s apparent show of ownership, and the silence and inaction of the plaintiffs, he acted with great deliberation, and was fully advised by Gilliland of all his plans, antecedent to the change of ostensible proprietorship of the paper.

But the Puckette receipt, under which Gilliland sets up his claim of title, discloses that he had the negotiations referred to at least three weeks subsequent to said change of proprietorship; and that Mayo was fully advised of these negotiations his-own testimony will attest.

“Being shown document No. 2 (the Puckette receipt), says he: ‘The first he saw of it was in New Orleans, on the 8th of March, 1892. It was shown to him by R. O. Gilliland. He had furnished him $600 to consummate the trade for the Echo. That was on Monday, the 7th of March, 1892. That he (Gilliland) went around to get a bill of sale from Puckette, as he told me, promising to meet me between 2 and 8 o’clock. He had with him a bill of sale — a notarial act which was signed by O. McD. Puckette, conveying to Gilliland the Lake Oharles Echo newspaper, for, I think, $600 cash, and the balance on one, two and three years’ time, stating that this act had been left at the notary’s office for him and Gilliland to sign. That he looked at this act of sale and told him that if he purchased under that sale he had no use for the paper, and would not buy it, as it contained a vendor’s lien. He (Gilliland) then left him, and said he would go back, see Puckette, and get a different kind of sale. That he saw him no more on that day, but the next day, the 8th, he met him * * * when he showed him the receipt marked No. 2, stating that he had saved $100 by holding on, but that Puckette refused to give him any other kind of a sale than the one drawn up the day before.” ’

This interview occurred nearly one month subsequent to the alleged change of proprietorship of the paper, and fully advised Mayo that Gilliland had no title at that date, nor for three weeks afterward. It gave him the fullest and most complete knowledge that Gilliland pretended to have no claim to the paper at the time the published announcements were made that he was proprietor, and that he did not claim to have any for nearly three weeks thereafter.

Taking this evidence into consideration, there is no foundation for defendants’ plea of estoppel. But the learned judge a quo also makes reference to the published circular that Reid issued, and in which it is said he “ expressed, in a public and unequivocal manner, more than a month after the sale and delivery of possession of the Echo to the defendant, and declared that his opponents had bought up all the Lake Oharles newspapers, and alluded to Mr. Thad. Mayo, the defendant, as present editor and proprietor of the Lake Oharles Echo;” and other similar statements.

In the first place this evidence does not respond to defendant’s plea of estoppel, which rests exclusively upon the plaintiffs’ alleged laches and negligence. But, giving these recitals full force and effect, they do not go to the extent that is contended for them.

The principal recitals that are relied upon, are to the effect that Reid’s political opponents had, by the lavish use of money, “ bought up all the Lake Charles newspapers,” and “ that he had no newspaper to reply to his many attacks,” etc. These statements were made with reference to the then existing campaign and the influences that had been brought to bear on his canvass, and amongst other things he evidently referred to the editorial control of the parish newspapers, generally, being adverse to his interest

Same are not inconsistent with the plaintiffs’ ownership of the property, and is fully explained by other evidence already adverted to and considered.

A careful and painstaking examination of the transcript and a full investigation of the whole evidence has satisfied us -that the plaintiffs have fully substantiated their claim of ownership, and that they should have judgment for the property in dispute.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the plaintiffs be decreed the owners of the newspaper plant and property in controversy, and placed in possession; that the sequestration be sustained and enforced, and that the defendants be taxed with the costs of both courts — the plaintiffs demand for the revocation of lease being dismissed as of non-suit.

On Application for Rehearing.

Our attention has been, for the first time, called to the fact that the defendant, Andrus, did not perfect his appeal by signing an appeal bond, and that in respect to him no alteration can be made in the judgment appealed from, and consequently our decree should be corrected in this particular.

The motion for rehearing has been examined and considered on other grounds therein assigned, but a careful examination of the record and our opinion have satisfied us that the appellee’s complaint is not well founded.

It is therefore ordered, adjudged and decreed that the judgment and decree herein rendered be so amended as to affirm the judgment appealed from in so far as the plaintiff, Andrus, is concerned, and that in all other respects same remain undisturbed — plaintiffs and appellants to be taxed with the costs of appeal.

Rehearing refused.


text:
      No. 1443.
    Joel B. Wolfe vs. Ulysse Joubert et al.
    1. Section 266S of the Revised Statutes of 1870 was borrowed from the New York legislation on the subject, and the courts of that State have interpreted its intent to be, to prevent the use of the name of a person not interested in the firm thus inducing* a false credit to which it was not entitled, and this on the strength of a name which had been withdrawn, or in which there was no authority to use.
    2. The object of the law was to prevent the obtaining of credit, secured by fraudulent representations, but not to prevent the giving of credit, and after it was given and the day of settlement had come, prevent the party infringing the statute from demanding payment of his debtor.
    3. A third possessor holding title to property judicially mortgaged for his vendor’s debt may collaterally attack the validity of the judgment which is the foundation of the judicial mortgage which is sought to be enforced against it and show that' same is null for any cause inherent in the judgment; yet his rights, in this respect, are just the same as those of his vendor, as judgment debtor — -no greater and nothing less.
    4. Between the vendor and vendee there is a privity of contract which entitles the latter to exercise any right of the former, for his protection, notwithstanding he may have renounced or abandoned them.
    5. The jndicial mortgage takes effect from the day on which the judgment is recorded, with this modification by the statute of 188S, that judgments rendered at any term of the court, outside of the parish of Orleans, shall have no effect to create a judicial mortgage, as between judgment creditors, until from the day of the adjournment of the term at which same was rendered, although recorded prior to the adjournment of said term, the effect of that statute being to make the registry of several judgments, rendered at the same term, concurrent, and not to deprive them of any effect aga nst the debtor until after the-adjournment of the term.
    PPEAL from the Eleventh District Court, Parish of St. Landry. l Perrault, J.

      Kenneth Baillio for Plaintiff and Appellee:
    1. A plea of discussion in a hypothecary action is a dilatory plea and comes too late after default or answer filed. 34 An. 962.
    2. A dilatory plea is waived by referring it to the merits without objection. 39 An. 624; 35 An. 284; 34 An. 966; 26 An. 312.
    3. The defendant in a hypothecary action receives the full benefit of the plea of discussion if other property of the judgment debtor is sold before trial and judgment and due credit is given for same on the debt claimed by the hypothecary creditor.
    4. The defendant in a hypothecary action has no right to urge defences against the judgment and mortgage which his vendor could not have set up. 35 An. 829.
    5. The judicial admission and averment estops a party from subsequently contradicting them. A fact once admitted can not afterward be denied. 23 An 764; 22 An. 252.

      6. The prohibition contained in R, S. 2668 and 2669 is directed against the obtaining and enforcing of credit and is in no wise prohibitory of the giving credit and demanding payment for said ci edit. 36 An. 238 and 240; 36 An. 259 to 260 and 261.
    7. The principle announced in the foregoing syllabus applies particularly in a case where the creditor has reduced his claim to judgment and where that judgment has been partly executed and satisfied without objection on the part of the judgment debtor. Such silence on his part is to he viewed as a waiver and acquiescence on his part, binding on him as well as upon his vendee.

      Thos. H. Lewis contra:

    Section2168, Revised Statutes, is a prohibitory law based upon public policy. It prohibits tlxe transaction of commercial business under afalse name and style. Courts will not lend their aid to enforce such transactions as against third parties who had no connection with nor profit from such transactions. It matters not if thenullity be not formally declared. C. C. 11, 12, 1893,1895.
    Section 2668, Revised Statutes, is borrowed from the New York statute, and a resident of that State selling goods to a resident of Louisiana in contravention of this law has no standing to plead exemption from its provisions. Nor will the provisions of this law be dispensed with on the ground that the particular act in question was not wicked or contrary to the public good. C. U., Art. 19.
    Registry laws are artificial rules, the creatures of positive legislation. Tending as they do to multiply forms in the transmission of property, and to restrict one’s natural right to do what he pleases with his own, they are not to be exteaded to cases not within their obvious intendment. Johnson vs. Bloodworth, 12 An 699
    The judicial mortgage takes effect from the day of adjournment of the term of court at which the judgment was rendered. Act No. 143 of Acts of 1888. And a party who claims a judicial mortgage must bring himself within the terms of that statute. H. D., p. 496, No. 8; same Vol., p. 524, Nos. 1, 2, 3, 5.
    Ho must anticipate every hypothesis naturally arising out of the nature of his demand, on which the defendant may escape liability. Lafitte vs. Perkins, 21 An. 171. And a plaintiff must allege facts material to his case even though they invoke a negative. Mothroy’s Case, 13 La. 52; McRae’s Case, 12 An. 85 And so, one demanding a judicial mortgage on the property of a third person must show that his judgment has been duly recorded. Cassedy’s (Jase, 2 R. 49.
    The law, O. O. 2251, devolves upon the notary the duty of depositing in the mortgage office the originals of all acts passed before him. He is permitted to retain the acts fifteen days, and negligence is not imputable to him for not depositing the acts before the expiration of that delay. If however the contrary he true, then the burden of proof of negligence within this period is upon the plaintiff claiming the judicial mortgage. Officers are presumed to do their duty, and in all cases where fault or negligence is alleged it is, says Mr. Cross in his work on Pleading, p. 119, “necessary, in order to overcome the presumption, to allege and prove the contrary.proposition.”
    An absolute judgment ordering sale of property is erroneous. Desobray’s Case, 9 An. 180.
   The opinion of the court was delivered by

Watkins, J.

This is an hypothecary action brought against the two defendants, Ulysse and Homer Joubert, as third possessors of property derived from the plaintiff’s judgment debtor, Phillip Thompson, subject to his duly recorded judicial mortgage; and the prayer of his petition is that same be ordered sold to pay that judgment in due course of proceedings.

Plaintiff’s averments are to the effect that on the 15th of December, 1890, he obtained a judgment against Thompson in the United States Circuit Court at New Orleans, in this State, for the sum of $8768.90, with interest, and caused same to be duly inscribed in the proper book of mortgages for the parish of St. Landry on the 20th of said month.

That said registry and inscription operated in his favor from and after that date as a judicial mortgage upon all real property then owned or since acquired by his judgment debtor in that parish. That at the date and time of said registry and inscription Thompson owned certain described property in that parish, against which he proceeds and which is in the possession of the two defendants in the proportions stated.

For the evident purpose of identification the plaintiff avers “ that on the 9th of December, 1890, said Phillip Thompson sold said property to William Evans * * * but said sale was only recorded in the conveyance book of the parish on the 22d of December, 1890.” He also avers that since the purchase by said William Evans, as aforesaid, he has disposed of said property — one-half to Homer Joubert, and the remaining one-half to Ulysse Joubert” — though he avers that said sales to the Jouberts “ were only recorded in the conveyance office of St. Landry parish on the 22d day of December, 1890, and said properties were and are affected by his said mortgage,” etc.

After excepting, the defendants filed an answer and called their vendor, William Evans, in warranty, demanding such judgment in their favor against said warrantor as may be rendered against them; and Evans, in turn, excepted, and called in warranty his vendor, Thompson, and thereupon Thompson filed an answer pleading the general issue, and specially disavowing the existence of any recorded judgment operating a judicial mortgage on the property he conveyed to Evans at date of sale, December 9, 1890; also, that the failure of Evans to have his act of sale recorded in time relieves him from all responsibility.

On the issues thus made up the case went to judgment and was decided in favor of the plaintiff and against the defendants, and they had like judgment against their warrantor, Evans; and he in turn had judgment against his warrantor and. plaintiff’s judgment debtor, Thompson.

Erom this judgment Evans, warrantor, is the only appellant— other parties having acquiesced therein.

The defendants tendered an exception of no cause of action, coupled with a general denial and a special defence as to their warrantor, Evans, and he tendered the two following exceptions, viz.:

1. That the judgment the plaintiff obtained in the United States Circuit Court against Phillip Thompson is an absolute nullity on its face, in that it alleges that the plaintiff, Joel B. Wolfe, was doing business and obtained said judgment under the firm name and style of Udolpho Wolf, Son & Co., in violation of a prohibitory law of the State of Louisiana and of the State of New York, where he resides.

2. That since the institution of this suit plaintiff has proceeded by ft. fa. to execute his judgment by the seizure of his debtor’s property situated in the parish of Acadia, and for which cause this suit should be dismissed.

These exceptions were overruled, and the ruling of the judge a quo constitutes the chief ground of appellant’s complaint.

No particular stress is laid on the defendant’s exception of no cause of action, and it is manifestly without any merit, as will be seen from the averments of the petition we have quoted.

But counsel earnestly insists upon the first exception of the warrantor, Evans, which is to the effect that the plaintiff’s judgment against Thompson is an absolute nullity on its face, in that it discloses that he did business in the social name of Udolpho Wolf, Son & Co., in violation of a prohibitory statute of the State of Louisiana and a like statute of New York.

It appears that on the trial of this exception the warrantor, Evans, offered in evidence the certified copy of the judgment which had been recorded so as to operate a mortgage, for the purpose of showing the nullity of that judgment on its face, as alleged in his exception. Plaintiff, in turn, offered the entire Circuit Court record, pleadings and evidence, which was objected to by warrantor’s counsel, and'the objection was sustained and plaintiff reserved a bill of exceptions.

In so doing the district judge ruled correctly. The exception urged was to the effect that the plaintiff’s judgment was absolutely null, and that such nullity was apparent on its face, and, of course, the sole proof of such exception must be found in the judgment itself. Looking at the judgment we find its recitals to be as follows, viz.:

“It is ordered, adjudged and decreed that the plaintiff, Joel B. Wolfe, residing in the city and State of New York, and there doing business under the firm name and style of Udolpho Wolf, Son & Co., and a citizen of the State of New York, do have and recover of and from the defendant, Phillip Thompson, the sum of $3768.90,” etc.

. And looking into the statute which is relied upon, we find it to be as follows, viz.:

“ Hereafter, no person shall transact business in the name of a partner not interested in his firm, and when the designation ‘ and company,’ or ‘ & Co.’ is used, it shall represent an actual partner, or partners.” R. S., Sec. 2668.

The succeeding section declares that a person offending the foregoing prohibition shall be deemed guilty of a misdemeanor and fined.

It will be observed that this statute does not formally and in terms pronounce the nullity of transactions in violation thereof; but counsel’s contention is that we must connect this statute with that provision of the code which declares that “ whatever is done in contravention of a prohibitory law is void, although the nullity be not formally pronounced.” R. C. C. 12.

Accepting warrantor’s theory as correct, for the purpose of argument, and yet we find the proof impertinent and inapplicable, in that it does not show that plaintiff ever did any business in the State of Louisiana; on the contrary, the judgment invoked affirmatively discloses that plaintiff resided in and was a citizen of the city and State of New York, and was there engaged in business at the time the defendant contracted the indebtedness on which same is predicated. Hence the Louisiana statute was not violated, by virtue of the fact that the plaintiff conducted business in the city and State of New York under the firm name and style of Udolpho Wolf, Son & Co.”

It is therefore clear that the decision of the question must be controlled by the statute of New York.

Of what is the statute law of the State of New York on this question, there is no proof in the record, but we are cited to the case of Kent vs. Majoiner, 36 An. 259, in which we said that the provisions of statute (K,. S., Secs. 2668, 2669) is “ borrowed from the New York legislation on this subject. Chap. 281, S. S. Laws 1833.”

This declaration is controlling in this respect and imports full proof of the existence and purport of the New York statute. Consequently it is our duty to examine and apply the jurisprudence of the New York courts to the statute and thus ascertain whether plaintiff is amenable thereto, and his judgment absolutely void on that account; and for that purpose we make the subjoined extract from the opinion in that case, viz.:

“The highest court of that State (New York) has had, twice at least, occasion to consider and expound the purpose and scope of the statute, and has emphatically announced that its intent was to prevent the use of the name of a person not interested in a firm, and thus inducing a false credit to which it was not entitled, and this on the strength of a name which had been withdrawn, or which there was no authority to use.

“ It was against fraud and imposition which might be practiced upon innocent parties who dealt with the person who transacted business in the name of a party whose interest had ceased, or who never had any in the same, that the statute was directed. Beyond this the statute can not be extended by implication, or even by a liberal construction. 83 N. Y. 74; 72 N. Y. 198; 50 N. Y. 314. Also 5 Wheaton, 56; 7 Wallace, 486; 12 How. 83.”

Having made the foregoing analysis of the New York jurisprudence on the subject and cited the foregoing decisions of the courts of that State, we made the following application of the principal announced to the case under consideration, namely:

“We fully concur with that able court, and hold that the object of the law was to prevent the obtaining and enforcing of credit, secured by fraudulent representations, and that it was not designed to prevent the innocent infringer of its prohibition from giving credit, and, after it was given and the day of settlement had come, from demanding reimbursement, or satisfaction, to the full extent of his rights, from the benefited obligor. It would be, in the highest degree, inequitable and unjust to permit a debtor to repudiate a contract, the fruit of which he retains. The penalty attached to an infraction of the law could be inflicted, in a criminal prosecution, only at the instance of one wronged by the obtaining of an unfair or undue advantage, procured by false and fraudulent representations, by one clearly in contravention of law.
“Whatever the statute and the penalty affixed to its violation may be, we are clear that the penalty can not be extended to a civil case, when the action is to recover money from one to whom it was lent, or to whom credit was given, who was not deceived, and who lost nothing by his dealings with his creditor. * * * Dwarris on Statutes, 248; Sedgwick Stat. and Oonst. Law, 78: 9 An. 251; 10 An. 846.”

See also to same effect Halliday vs. Bridewell, 86 An. 288; and Succession of Boffinschen, 29 An. 711.

Taking the opinion in Kent’s case as our guide it is clear that, under either the New York or Louisiana statute, it is the transaction of a business that is aimed at; and that itfis the partner violating its terms, and not his customer, who incurs its penalty.

But counsel’s contention goes further, and is to the effect that, notwithstanding the debtor of such a partnership can not be heard to plead the nullity of his engagements, on account of the creditor’s violation of the statute, yet that that rule of exclusion has no application to a third person, such as a third possessor.

While it is true that a third possessor holding title to property judicially mortgaged for his vendor’s debt may collaterally attack the validity of the judgment which is the foundation of the judicial mortgage which is sought to be enforced against it (Bernard vs. Vignaud, 10 M. 482), and show that same is'null for any cause inherent to the judgment itself (Peets vs. Wilson, 19 La. 478) ; yet his rights, in this respect, are just the same as those of his vendor as judgment debtor — no greater, and nothing less. Between the vendor and vendee there is a privity of contract which entitles the latter to exercise any right of the former for his protection, notwithstanding he may have renounced or abandoned them. But it can not be argued from that premise that the third possessor could exercise the rights of the State and invoke the penalty of the statute against his vendor’s creditor, in a manner different or more effectively than his vendor could have done.

To assent to such a proposition would be to say that the debtor might do indirectly what he would not be permitted to do directly.

We are clearly of opinion that this exception of the warrantor was correctly overruled.

His second exception is tantamount to a plea of discussion; and subsequent to same being filed plaintiff filed a supplemental petition admitting the seizure and sale under fi. fa. of certain property of Thompson in the parish of Acadia, and requested the court to permit him to credit his judgment with the net proceeds of the sale. This necessary leave was granted, the judgment accordingly credited, and the exception overruled, and it passed out of the case.

That was the proper solution of the exception, and the ruling was undoubtedly correct.

A further objection is urged in argument as one arising on the face of the plaintiff’s petition and judicial mortgage, to the effect that the registry of the judgment was effected on the day following that on which it was signed, and further to the effect that plaintiff admits that at the time of registry the warrantor, Evans, was the owner by purchase from his debtor, Thompson, though his title was not registered until the day after his judicial mortgage was recorded, and consequently his property was not affected by it.

Citing this state of facts counsel makes reference to the provisions of R. S. 2501, requiring notaries to deposit all acts passed by them in country parishes in the recorders’ offices “within fifteen days at farthest after same shall have been passed,” and also those of Act 143 of 1888, declaring that judicial mortgages shall only take effect from the day of the adjournment of the court rendering the judgment; and insist that in the first place the law imposed no duty on the warrantor to file his deed of sale and have it recorded until after the lapse of fifteen days from the 9th- of December, 1890, the date of its passage before the notary; and in the second place that the registry of plaintiff’s judgment on the day after it was signed had no effect until after the adjournment of the court rendering the judgment.

The answer to the first proposition is plain, and it is that the section of the statutes quoted gives to notaries no limit within which to file acts'passed by them, but requires them absolutely to file them “within fifteen days at farthest after the same shall have been passed.” It makes it permissible for same to be filed at any time after their passage.

The code declares, in most emphatic terms, that “ the judicial mortgage takes effect from the day on which the judgment is recorded,” etc. R. C. O. 3322, 3329.

And this without regard to the date on which the court rendering the judgment adjourned.

This question was carefully examined and decided in Chaffe & Sons vs. Walker, 39 An. 35; and we are of opinion that the opinion therein announced is correct, and will bear the test of the closest scrutiny; and it is consequently affirmed.

It is true that Act 143 of 1888 has been since enacted; but that statute does not militate against the force and effect of that decision, as an examination of it will attest that it is restricted in terms to the rank of conflicting judicial mortgages and has no application to the parish of Orleans. Its provisions are as follows, viz.:

“The judicial mortgage takes effect from the day on which the judgment is recorded in the manner hereinafter directed: Provided, that judgments, the parish of Orleans excepted, rendered at any term of court, shall have no effect to create a judicial mortgage, as between judgment creditors, until from the day of the adjournment of the term at which the same was rendered, although recorded prior to the adjournment of said term.’’ Act 143 of 1888.

They are clear to the effect that they do not apply to the parish of Orleans, and are limited in their effect to the rank of conflicting judicial mortgages in other parishes of the State.

On the evidence it is clear that plaintiff’s judgment was rendered and signed in the parish of Orleans, and that plaintiff’s mortgage is the only one on the defendant’s property. Under the statute of 1888, as well as under the code, the registry of plaintiff’s judgment operated as a mortgage on Thompson’s property from the date it went to record in the parish of St. Landry. That statute conformed Art. 555 of the Code of Practice to R. O. O. 3322, and 3329, as interpreted in the Walker case; only altering the rank of competing mortgages, so as to prevent any inequality in the payment of several judgments, rendered at the same term of court, though registered in the book of mortgages at different dates.

We have given this case most careful consideration, and arise from the study of it with the clear conviction that the judgment appealed from is correct.

Judgment affirmed.

On Application for Rehearing.

This application is made for the exclusive purpose of obtaining an alteration of the judgment appealed from, which is absolute, and orders the hypothecated property unconditionally sold to pay the hypothecary indebtedness of his judgment debtor, Thompson — the appellant’s contention being that plaintiff is only entitled to a judgment in the alternative, commanding defendants and third possessors “ either to give up the property or pay the amount for which it stands hypothecated.” O. P. 68, 74.

We are of opinion that he is entitled to this amendment. Vide Desorby vs. Oarmena, 9 An. 180. Taking that case as our guide, we will so alter our decree as to make it conform thereto; but for that purpose a rehearing is unnecessary.

It is therefore ordered, adjudged and decreed that the judgment and decree appealed from be so altered in phraseology and amended as to read as follows, viz.: “ It is ordered, adjudged and decreed that the defendants deliver up the hypothecated property which is described in the plaintiff’s petition, to be sold in satisfaction of the plaintiff’s and appellee’s hypothecary claim as set forth in his petition, viz.: the sum of thirty-seven hundred and sixty-eight and ninety-hundredths dollars ($3768.90), with 5 per cent, per annum interest from March 21,1890, until paid, and costs, subject to a credit of eleven hundred and forty-eight and ninety-nine-hundredths dollars ($1148.99), with like interest.”

And it is further ordered and decreed that, in default of defendants’ surrendering said property for sale as aforesaid, within ten days from demand, that said defendants pay to the plaintiff the aforesaid sum, with interest and cost of suit, not including costs of seizure and sale of the mortgaged property, which must be paid from the proceeds of sale when made, the costs of appeal to be taxed against the plaintiff and appellee.

It is further and finally ordered and decreed that, as thus amended, our former judgment remain undisturbed.

Rehearing refused.


author: McEnery, J.

text:
    No. 1437.
    Bernice M. Lambert vs. Mary Craig.
    A plaintiff in a petitory action against a party in possession of the property, exhibiting title, must recover on the strength of his title. Resting his title on a tax deed, he must not only show a prima facie title, but one absolutely good. The recital in a tax deed that all the requisites of law were complied with will not excuse the production of proof aliunde that the essentials prerequisite to the sale were complied with.

      The effort of plaintiff in a petitory action to sustain his title by a plea of prescription against an attack thereon by defendant can not be countenanced.
    Where two parties claim the same property, under different conveyances, and one of them leases the property from the other, he abandons his title and can not afterward set up the same title against the party from whom he leased the property.
    In tax sales under the Revenue laws as they formerly existed, notice to the taxpayer was an essential prerequisite to the seizure and sale. Where thelawproyided that a curator ad hoc must be appointed to the non-resident tax-payer, upon whom notice was to be served, the failure to have such curator ad hoc appointed renders the sale absolutely null and void.
    PPEAL from the Eleventh District Court, Parish of Acadia. Perrault, J.

      Kenneth Baillio for Plaintiff and Appellee.

      Edward L. Wells for Defendant and Appellant. .
   The opinion of the court was delivered by

McEnery, J.

This is a petitory action instituted for the recovery of S. >ó and N. W. % Sec. 27, T. 10 S., Range 1 West.

Plaintiff claims title through a tax sale made to one D. Webster in 1876 by the tax collector of the parish of St. Landry, and the defendant claims by purchase from John Craig, Robert Craig and John Craig, Jr., who purchased from the State of Louisiana in 1871 and in 1872, and who also claims through tax sale to Thomas Rice, September 3, 1881. The tax sale to Rice was in fact to the defendant, Miss Mary Craig, as she paid the amount for which the property was adjudicated and at her request the deed was made to Thomas Rice.

Prescription was pleaded by both parties. The plaintiff, attacking the title of a party in possession, can not sustain his title by a plea of prescription. As stated in Waddill vs. Walton, 42 An. 776, “the effort of the plaintiff in a petitory action to sustain his title by a plea of prescription against an attack therein by the defendant in possession can not be countenanced. The plaintiff has cited no precedent for such a reversal of the ordinary principles of pleading and of prescription, and we shall not establish one.” The defendant’s actual and corporeal possession of the property first dating from the time the lease of the property to one Richard has not been sufficient to maintain the plea. There are several other preliminary questions which it is not necessary to notice. The defendant is in possession, and the plaintiff must show a better title than the defendant, and being the attacking party, setting up a tax sale as the basis of his title, it must not only be prima facie good, but absolutely good, 42 An. 766.

The question then is as to the validity of the tax deed to Webster in 1876, under which the plaintiff claims, and if this is valid, whether the plaintiff, who purchased from Richard, the lessee of the defendant, is estopped from disputing the title of defendant to the property. The many questions presented and discussed with exhaustiveness by the district judge, need not therefore, under this view of the issues raised, be reviewed in this opinion.

There was judgment for plaintiff and the defendant appealed.

The tax deed to D. Webster, author of plaintiff’s title, is radically defective, and the statement in the deed that “ by virtue of the power in me vested by law, and strictly in accordance with all the legal provisions in such case made and provided, I, J. L. Morris, collector of State and parish taxes for the aforesaid parish, did seize and advertise for sale,” etc., will not cure the omissions of acts necessary for the validity of the sale of said property.

There was no notice of the delinquent tax, and as the law then existed, no curator ad hoc was appointed to represent the absent owner. Attempts were made by plaintiff to prove that all necessary acts were done and the curator ad hoc appointed; but the proof fails to establish the fact of the existence of these essentials.

There is no recital that a curator ad hoc had been appointed and no proof aliunde that one had been appointed, as was required by the revenue act under and by virtue of which the property was sold.

The tax sale was therefore absolutely null and void for this reason. Roff vs. Lowry, 80 An. 1275.

No notice was served on the tax debtor. The law required a written or printed notice to the agent or owner of the assessed property, and after the expiration of ten days, if the tax was not paid, the tax collector was authorized to seize and sell. The notice was an essential prerequisite to the seizure, and this could only be served on the owner personally or on his agent, or by service on a curator ad hoc to represent him.

It is elementary, and this court has frequently held, that noncompliance with the statutory requirements and preliminary acts as to tax sales operates to vitiate such sales. Villey vs. Jarreau, 33 An. 296.

If the deed even exhibited a prima facie title to Webster, through whom plaintiff claims, the plaintiff suing for title against one in possession exhibiting title must show more than this. He must exhibit a title absolutely good, upon the strength of which he must succeed, and not the weakness of defendant’s title. 42 An. 763.

■ This case was before this court at its session in July, 1892, and is reported in 44 An. 885. The present defendant was then plaintiff suing for title, the present plaintiff being the defendant, setting up tax title as in this suit.

The facts are stated in the opinion of the court. The inquiry in the lower court had been exclusively directed to one of possession, and this court considered only the fact of possession, and remanded the case for a trial as to title. Mary Oraig, the then plaintiff, was maintained in possession, and the defendant, plaintiff now, instituted this petitory action against her. All questions, therefore, in this suit as to the fact of possession are eliminated from the issues involved.

Richard, who purchased from W. W. Dusson as the agent of D. Webster, who held the tax deed of 1876, leased, after his purchase, the property from Mary Oraig. In fact the tax deed to Webster seems to have been ignored by W. W. Dusson and by the vendee of Webster. W. W. Dusson, in 1884, was corresponding with the present plaintiff, advising her as to the danger she ran by permitting the property to be assessed to Thos. Rice instead of being assessed in her own name, and also receiving money from her to pay taxes, or at least he knew of the amount being forwarded, as in one of his letters he inquires why she forwarded so large an amount to pay the taxes, when only a tax of ten dollars was due. He acknowledged her title to said property by an offer to purchase from her. There was, as it appears, a double payment of taxes on the property. O. C. Dusson, sheriff, says Webster paid the taxes to the time of sale of the property to Richard, and it is certain, from the tax receipts and the record, that Mary Oraig promptly paid the taxes to the tax collector, and it would seem at times through O. O. Dusson, sheriff.

Richard, when he abandoned the title he had received from Webster, by leasing the property from Mary Oraig, who asserted ownership to it, adversely to his title, was forever estopped from asserting title through the tax sale, which he abandoned. As between Richard and Mary Oraig, her title was as absolutely fixed as though he had deeded to her the land. When Richard sold to Dusson he was the purchaser of property of another and received no title and could convey none to his vendees.

But the testimony in the record forces the conviction upon us that W. W. Dusson, who had acknowledged Mary Oraig as the owner of the property, had actual knowledge of the lease of Mary Oraig to Richard, and that Williams and Lambert, the latter the plaintiff, were parties interposed for the real purchaser from Richard, W. W. Dusson. It is unnecessary to review the testimony on this point. It is sufficient to say the correspondence between the parties, between Dusson and Mary Oraig, the business relations between Dusson and Lambert lead to this conviction.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered and decreed that plaintiff’s suit be dismissed with costs.


text:
    No. 1442.
    Aglae Landry, Wife, vs. B. Philogene Landry. Duplessis Landry, Warrantor.
    The plaintiff in a petitory action must recover on the strength of his own title and not on the weakness of defendant’s. A party in possession who is charged with holding possession without title will be maintained in the same against one who exhibits no title at all.
    Parol testimony can not be received to establish title to immovable property But where the records have been exposed to fire, some destroyed and others saved in a damaged condition, the vendor’s testimony can be received to supply the obliterated parts of the deed.
    APPEAL from the Seventeenth District Court, Parish of Vermilion. Allen, J.

      L. L. Bourges for Appellant.

      C. DeBaillon and Lastie Broussard for Appellees.
   The opinion of the court was delivered by

McEnery, J.

This is a petitory action, the plaintiff claiming ownership of east half of Sec. 22, Township 11 South, Range 2 East, situated in the parish of Vermilion, and containing 321 66-100 acres, and valued by plaintiff at $2500. She alleges that she is the heir of Marguerite Azelia Landry, wife of Maximilian Landry, Jr., deceased; that as such she is entitled to one-half of the succession of said Marguerite Azelia Landry; that she was owner in community with Maximilian Landry, her husband, of the above described property ; that one B. Philogene Landry is now in possession of said tract of land; that he took possession of the same, without title, in 1885; that he is a trespasser, and that she is entitled to rent at the rate of' $600 a year from 1st of January 1885 to the 1st of January 1892. She prays to be decreed the owner of one undivided half of said property, and for $3600 for rent.

The defendant demanded an exhibition of plaintiff’s title. She exhibited an abstract of entries, recorded in the parish of Vermilion, certified to by the clerk of court. The abstract shows that Maximilian Landry entered the above described property April 16', 1860.

The defendant set up title by virtue of an act of sale from. Florestin Bourque, June 11, 1881, who some time prior thereto acquired the same at tax sale, which was ratified by' Marie Bertrand, widow of Maximilian Landry, Sr.

The plaintiff offered in evidence copy of judgment recognizing her as the heir of Aglae Landry, wife of Maximilian Landry, Jr. This judgment decreed that the property inventoried in the succession of Maximilian Landry, Jr., should be declared community property, and the administrator of said succession was ordered to file a full and complete account of his administration on or before the next regular term of court.

The inventory of this succession is not in the record. If any account was filed it has not been offered in evidence.

There is nothing in the record to show that the property which is claimed by plaintiff was ever in the succession of Maximilian Landry, Jr. The receipt does not show it, and we think the defendant might have safely rested with the close of plaintiff’s testimony.

Interrogatories were propounded to several witnesses, and the answers were objected to by plaintiff as being an attempt to prove title to immovable property by parol testimony. The objection was overruled and the testimony admitted. The answers of the witnesses were in the main an attempt to show title by parol testimony. So far as they were directed to this they were inadmissible. But the records of the parish of Vermilion had been destroyed by fire, and'among the lost records was the tax deed to defendant. Marie Bertrand, widow of Maximilian Landry, after the alleged tax sale, made a deed to Florestin Bourque of the property in controversy. The part of the deed remaining, after its exposure to Are, shows that it was made in relation to a prior tax sale. We are of the opinion that her testimony that she had executed this deed to ratify the prior tax sale is admissible under the circumstances of this case.

The widow of Maximilian Landry, Sr., was evidently in possession of the property in 1878, when she executed this deed. The record forces the belief upon us that Maximilian Landry, Sr., entered this land, and in the absence of any testimony to show what was done in that succession or the succession of Maximilian Landry, Jr., we can not presume that she illegally conveyed the land to her vendee, Bourque. The defendant, so the testimony and the record aAirm, purchased in good faith from a party whom he believed to be the owner. His vendee purchased from the apparent owner and the party in possession. His title is translative of property. She and his vendee have been in actual corporeal and civil possession for more than ten years. The prescription pleaded must therefore prevail.

But independent of this plea, on a comparison of titles the plaintiff exhibits none, and the defendant set out an apparent valid one. The plaintiff, if the defendant’s title is weak, can not avail himself of it, but must present a stronger one.

Judgment affirmed.


author: Breaux, J.

text:
    No. 1433.
    Moore, McKinney & Co. vs. L. J. Ringuet et al.
    Plaintiffs’ judgment is for an amount less than two thousand, dollars.
    The judgment prayed for, to rescind and annul the conveyance of their debtor, was revocatory and not en declaration de simiclation.

    In a revocatory action the test of jurisdiction, is the amount claimed by the creditor, and not the value of the property, the sale of which the plaintiffs seek to have revoked.
    APPEAL from the Twelfth District Court, Parish of Calcasieu. Fournet, J.

      Mitchell & Mitchell for Plaintiffs and Appellants.

      A. P. Pujo for Defendants and Appellees.
   Statement oe the Case.

The opinion of the court was delivered by

Breaux, J.

The plaintiffs are the creditors of the defendant, L. J. Ringuet, in the sum of $849.47, and interest thereon at the rate of 5 per cent, per annum from the 25th day of April, 1892, and for the further sum of $12, cost of suit, for which they obtained judgment against him on the SOth day of May, 1892.

The other defendant, the wife of L. J. Ringuet, after her marriage, more than twenty-five years since, inherited an amount from the succession of her father and a small sum from her mother’s estate.

In 1868 the husband, Ringuet, made a dation en paiement to his wife and declared in the notarial act that the remainder of his indebtedness to her was $894.

In 1879 the wife sold a tract of land in Iberia parish for the sum of $1250. In the deed of sale she declared that it was transferred to her by her husband as a dation en paiement, as per act before E. Paraut, notary public, on the 20th day of August, 1879, and she and other witnesses in her behalf testify that the price was received by the husband and expended by him.

In May, 1892, Ringuet made affidavit before the clerk of the District Court of indebtedness to his wife in the sum of $2950, which he acknowledged having received and expended for his separate use and benefit.

Immediately after, he conveyed all his property, valued by him at the sum of $2700, leaving due her $250.

In the act, the transferrer declares that in the year 1870 or 1871 he made a dation en paiement to his wife of certain property consisting of about 110 acres, in satisfaction of the sum of $1250, her paraphernal claim.

In the paragraph following, of the deed of sale, he declares that this property, conveyed to his wife in part satisfaction of her paraphernal claim, was sold to one Thomas Simon, for the sum of $1250 and which amount was appropriated by him, the vendor’s husband, after the sale, to his benefit.

This is the land to which we have before referred as being situate in the parish of Iberia.

Pleadings.

The plaintiff, in his petition, alleges substantially that the dation en paiement, of May, 1892, was a fraudulent scheme in the interest of the husband to defeat the claims of his creditors.

That he was not indebted to his wife, and that she participated in the fraud.

That it was a mere simulation.

That they will lose their claim should the said dation en paiement not be rescinded and made subject thereto.

That the property conveyed for $2700 is worth $5000.

That by this conveyance the husband was left without property and insolvent.

Petitioners pray for judgment against Ringuet and wife revoking and rescinding the said “pretended dation en paiement,'1'1 subjecting “ the said property to the creditors of the said L. J. Ringuet, and particularly to the judgment of your petitioners herein set forth.”

The defendant, the wife, in her answer, alleges that the conveyance of the property to her by her husband was real and bona fide.

She also alleges that there was error in the deed of May, 1892, which she applied to correct.

The error) she avers, was in the declaration contained in the deed, that her husband made a dation en paiement to her in 1870 or 1871, for the sum of $1250.

The fact being, she alleges, that the amount was $2083, and the date March 20, 1868, which left a balance of $859.55 due her, together with the $1250 sale to Simon, aggregating $2109.55.

She prays to correct the error alleged and for judgment recognizing her as owner of the property.

The judgment of the District Court was pronounced in favor of the defendant; plaintiffs’ demand was rejected.

Prom the judgment plaintiffs appeal.

The defendants move to dismiss the appeal on the ground that this court is without jurisdiction ratione materias; that the amount involved is less than $2000.

On the Motion to Dismiss.

If the action is revocatory, this court is without jurisdiction.

To determine that the action is en déolaration de simulation would involve a decision that no consideration passed; that the title had no element of the real, and that possession was not surrendered under the deed.

Conceding for the moment that the defendants have not proved the entire consideration alleged, it does not appear, under theallegations and the proof, that the title is one which does not confer any right at all, and that it is a mere simulation.

The plaintiffs judiciously chose to proceed by direct action.

The conveyance could not be treated as entirely simulated, for the reason that the defendant,' Mrs. Ringuet, is in possession under a title; that that title is based upon consideration which may not be sufficient to successfully defend against an attack to set it aside as in fraud of creditors, but is sufficiently real to compel creditors to resort to a suit to have it revoked and annulled.

It is, to say the least, sufficiently real to escape from being characterized as corpus sine anima, extrinsicus apparens, intrinsicus nihil habens.

The wife obviously was a creditor. It is sufficient for us to determine that there is at least an appearance of reality in her claim.

The form of the action and the allegations taken in their entirety sustain the conclusion that it is revocatory; the evidence establishes that she was a creditor; the amounts of the credits must be determined by the appellate court having jurisdiction and errors corrected by it, if any were made, as alleged by defendants. Should the sale be revoked, the rights of the creditor can not be ignored; they must be considered and passed upon in a revocatory action.

Our conclusion being that the action is revocatory the amount claimed is the test of our jurisdiction. Katz & Barnett vs. G. G. Gill et al., 43 An. 1041.

The Supreme Oourt is without jurisdiction of a suit on the part of a creditor for an amount less than two thousand dollars, to annul a transfer of property made by his debtor, as fraudulent, to subject it to the payment of his claim. Walter O. Flower vs. A. O. Préjèan et al. 42 An. 897.

The counsel for plaintiff directs our attention to Godshaw & Plant vs. The Judges of the Second Circuit Court of Appeals, 38 An. 843.

The court in that case holds that in an action by a judgment creditor to have the purchase of the property declared simulated and to be in reality for account of the debtor, the value of the property and not the amount of the judgment is the matter in dispute.

The question in that case was purely one of simulation vel non. There was not an appearance of reality in the conveyance.

It was charged that the purchaser was an interposed person, and nothing created the impression of reality of the sale.

In the other case referred to, that of John Chaffe & Sons vs. D. D. Demoss and wife, 37 An. 186, it was held that the appellees who had moved to dismiss could not successfully invoke the cases of Loeb & Bloom vs. Arcot, 33 An. 1086; Zuberbier & Behan vs. Morse, for the reason that each was revocatory. These cases support defendant’s contention, the action being revocatory.

In the case to which we have just referred, 37 An. 186, the court expressly held that it is practically the action in declaration of simulation and not the revocatory action.

In the case of State ex rel. Bloss vs. Judges of Oourt of Appeals, 33 An. 1352, another case referred to by plaintiffs, the court held that the object of “the rule was to have the mortgage canceled on the ground that it was simulated and unreal.”

The court is without jurisdiction ratione materiee to establish the amount of the consideration which is real and not subject to successful attack on the part of a judgment creditor for an amount not within this court’s jurisdiction.

The appeal must be dismissed.

The appeal is dismissed at the costs of appellants.