text:
    No. 11,573.
    H. & C. Newman vs. A. B. Cooper. Thomas J. Cooper et als., Intervenor.
    I. At the dissolution of the matrimonial community by the death of one of its members, the title to community assets is vested jointly in the survivor and the heirs of the decea'sed, subject to the payment of community debts; and, as a consequenee of the dissolution, the survivor can exercise no further control over the half that has vested in the heirs of the deceased, and can not lawfully encumber it with a mortgage in favor of his individual creditor, whose debt was contracted since the dissolution.
    2, The theory of our law is, that a community of acquets and gains has, after the death of one of its members, only a fictitious existence, for the purpose of liquidation and settlement of community debts; consequently, when the surviving husband is the debtor of his wife at the time of her death, her heirs* become eo instantz creditors of the community; and such survivor can not mortgage his half of the community property to secure his individual debts* otherwise than subject to the liquidation and settlement of the community and the payment of its debts out of its proceeds by preference.
    8. The community creditors whose claims are unsecured by mortgage are entitled to be paid from the assets of the community by preference over the individual creditors, though the latter are secured by special or judicial mortgage.
    Such mortgage of the share of the survivor is not null, but its enforceability is restricted to the residuum after community debts have been discharged.
    That the community must be liquidated and settlement effected in the course of proper judicial proceedings in order that the amount’of such residuum be ascertained, and in such case the mortgagee of the husband will not be permitted to proceed in the foreclosure of his mortgage until this residuum has been ascertained.
    APPEAL from the Sixth District Court, Parish of Richland. Ellis, X
    X W. Willis for Plaintiffs, Appellees.

      Gunby & Sholars for Defendants and Infcervenors, Appellants-
   The opinion of the court was delivered by

Watkins, J.

Suit is brought via ordinaria on the defendant’s: promissory note for five thousand dollars, secured by special mortgage, and plaintiffs’prayer is for personal judgment for that amount, with interest, and a decree of foreclosure against tbe property mortgaged.

In the petition the note is fully described, with all of the various endorsements thereon, renewing and extending payment thereof from time to time.

In limine, the exception was tendered that the defendant, A. B. Cooper, was not, at date of suit, in possession of the premises mortgaged, having sold and delivered the same to the intervenors. But the act of mortgage is authentic in form, was duly recorded, and contains the pact de non alienando.

And the well settled jurisprudence of the State is that a purchaser of property subject to a mortgage containing that clause, and duly recorded, can not claim to be in any better condition than his vendor, nor plead any exception the latter could not. Those who purchase or acquire real rights on it, subsequently, are presumed to know the titles or incumbrances under which they hold.” 1 Hennen’s Digest, p. 955, No. 1, and authorities cited.

The judge a quo correctly overruled the exception.

Substantially, defendant’s answer is that the note sued on was executed, and the mortgage consented, to secure his current, running commercial accounts with the plaintiffs for advances of necessary plantation supplies made and to be made to hi u in the course of the year 1887-88. That in the course of said dealings he was charged large sums in the way of usurious interest and unlawful charges for commissions on cottons not shipped to nor sold by them. That by the subsequent execution of various other notes and making subsequent payments, any possible indebted aess that might have been evidenced by the note sued on was extinguished by novation, and consequently nothing is due thereon to plaintiffs; and he avers that these facts are disclosed on the face of the plaintiffs’ accounts current, which were duly rendered to him. He concludes his answer with the prayer that the note sued onbe declared novated and extinguished, and utterly without consideration; and that the mortgage by which it was originally secured be declared discharged and abrogated by the extinguishment of the said note.”

The children and heirs of Mrs. Martha A. Cooper, deceased wife of A. B. Cooper, intervene and allege that their mother died on the 9th of December, 1883, leaving them as her survivors, and a considerable amount of real and personal property.

That her surviving husband, their father, did not qualify as administrator of her succession, nor as tutor of the then minor children, issue of his marriage with their mother.

That he continued in possession of the community property, which consisted of a plantation, stock and implements, 'and controlled, cultivated and enjoyed same up to and including May 2, 1893, when he recognized “their ownership of one-half of said property and transferred his half thereof to (them) in satisfaction and settlement of the amount due their, mother by the community between her and their father, on account of (her) paraphernal claims; all of which is set forth in the deed from A. B. Cooper to petitioners, dated May 2, 1893, and of record,” etc. (Our italics.)

They aver further that, “ at the time of their mother’s death, her said husband owed her largely on account of money received by him from sale and rent of her separate property, and for moneys received by him from the estate of John Prewitt, the father of said Martha A. Cooper. That said claims were due by the community, and that A. B. Cooper had no ownership or interest in the community property until he had settled the debts of the community.

That petitioners being, by virtue of their heirship, creditors of the community, are entitled to be paid out of said A. B. Cooper’s estate, and part of the community, in preference to debts contracted by him subsequent to the death of his wife.

“That, if her succession had been (administered), he could not have created debts to bind said property, or any pari thereof, until the succession had been settled and closed; and that he had no greater power or right to bind said property without administering said succession.

“That their claims against A. B. Cooper, as above set forth, amounted to four thousand six hundred dollars, in settlement and discharge of which he sold his interest in the above described plantation to (them).”

That the mortgage plaintiffs seek to enforce was previously executed on the 2d of April, 1887, and the object of their intervention is to resist and oppose the enforcement thereof on the following grounds, viz.:

“1. The mortgage of petitioner’s half interest in said plantation, inherited from their mother by her surviving husband, was and is an absolute nullity, because said interest never belonged to A. B. Cooper, and could not be disposed of by him after the dissolution of the community.
“2. The mortgage as to the other half interest is null and void because it was made on property belonging to the marital partnership, before said partnership was settled between the surviving spouse and the heirs of the deceased spouse — which settlement; when made, showed that A. B. Cooper owed his deceased wife more than the value of his interest in the community.
“8. That after the execution of the note sued on, the defendant delivered more than enough cotton to plaintiffs to have paid the same, by legal imputation of payments.
“4. That the note was novated by new notes, which plaintiffs still hold, and the mortgage extinguished thereby.”

Their prayer conforms to their allegations.

Plaintiffs amended their petition so as to demand the payment of counsel fees.

They also moved to strike from defendant’s answer all the averments as to payment and novation, because endorsements on the note evidenced its extension; and farther, because the defendant had executed various written waivers and acknowledgments. We are of opinion that the lower judge very properly declined this application, as these are matters appertaining to the merits of the cause.

They then excepted to the intervention on the ground that the maker and mortgagor can not impeach his own act, and that intervenors are bound by the acts of their father, and are estopped from attacking or impeaching the act of mortgage. Further, that plaintiffs accepted the mortgage on the faith of the defendant’s recorded title, and the certificate of the clerk that there existed no prior mortgage upon it, without any notice whatever, either on the assessment rolls, or otherwise, that Mrs. M. A. Cooper, or the intervenors, claimed to have any title or privilege whatever to the recorded title of A. B. Cooper. That plaintiffs had no knowledge of the death of Mrs. M. A. Cooper at the time of the execution of said mortgage, and there being nothing of record to show that she had any legal or tacit mortgage, and there being no administration and no tutor appointed for her minor children, or legal mortgage recorded for them, they consequently believed and accepted said mortgage on the belief that A. B. Cooper was the sole and only owner of the property mortgaged. And they aver that they can not be affected by any pretended sale, or other proceedings between the' mortgagor and intervenors, made with the intention of defrauding them, and to which they were not parties, and of which they were ignorant. And for all the foregoing reasons the intervenors are estopped from disputing the validity of said note and mortgage.

These exceptions were taken up for trial and some evidence introduced, whereupon the court referred same to the merits ex proprio motu, and the plaintiff’s counsel retained a bill of exceptions to its so doing.

Under the circumstances this was a proper ruling.

The judge required evidence on which to base a ruling on the exception, and such evidence trenched upon the merits.

The answer of plaintiffs to the petition of intervention is of like character as the foregoing exceptions, coupled with the additional allegation that not only was there no administration of the estate of intervenor’s mother, but there was no property to administer and no claim on behalf of. the deceased to the property mortgaged. That the defendant, “A. B. Cooper, had been in control and possession of said property from 1871 until the present time, according to the assessment rolls and the notarial books of the parish wherein same is situated. That the pretended sale referred to in intervenor’ petition as of May 2, 1893, of said property mortgaged from their father to them is a fraudulent simulation, made with the intention of defrauding plaintiffs of their just rights of mortgage * * * as A. B. Cooper was, at the time, and is now insolvent, to the knowledge of the intervenor, and that they knew of no other property out of which they could make their debt. * * * That said sale was made totally without consideration, as defendant herein did not owe intervenors a cent; and if intervenors ever had any property (which is specially denied) it has been consumed or appropriated to their bills for board, tuition, doctor’s bills and clothing since the date of their mother’s death, which expenses of raising and educating said children (five in number) since 1883 fully amount to ten thousand dollars; most of which expenses were borne by plantiffs since 1885, as will be shown by the accounts current of plaintiffs with A. B. Cooper, running from 1885 to the present date, of which money and goods shown by said accounts at least three thousand dollars were received by the intervenors; and though some of them may have been minors, said money and necessary supplies were used by them and inured to their special benefit in defraying the expenses of their support and education, and they are bound to plaintiffs to the-extent that they, said intervenors, have been benefited,” etc.

That Mrs. M. A. Cooper never had any paraphernal property, or paraphernal claim, whatever, against her husband, and if she had, same was under the control and administration of her husband, A„ B. Cooper, and the rents and revenues thereof belonged to the community before her death, and were appropriated to the payment of' community debts, and not to the individual debts of A. B. Cooper.

These copious extracts from the pleadings evidence the earnestness and zeal with which this litigation has been prosecuted on either side, and bring out all the salient features of the respective controversies of the different parties.

Upon an examination of the pleadings and evidence the lower judge gave a judgment in favor of the plaintiffs for the amount of the note sued on, but restricted their mortgage to one undivided one-half interest in the property mortgaged to them by the defendant, and recognized the title of the intervenors to the other half interest free of the plaintiffs’ mortgage.

From that judgment both the defendant and intervenors have appealed; and, in this court, plaintiffs and appellees have answered the appeal and prayed that the decree of the lower court be so amended as to award them judgment against the intervenors, in solido with defendant, in the sum of one thousand nine hundred and eighty dollars, and to recognize and enforce their mortgage against the whole of the property mortgaged.

From a consideration of the pleadings, in connection with the decree rendered, it is evident that the judge a quo regarded the plaintiffs’ exceptions and pleas of estoppel, in respect to intervenors, not well taken- — -notwithstanding no mention is made of them — and thus-felt satisfied of the previous existence of a legal or matrimonial community between the defendant, A. B. Cooper, and Martha A. Cooper,, mother of the intervenors, which terminated at the death of the latter, and vested a title to the assets thereof in equal joint ownership-in the survivor, the defendant, and the intervenors, in equal portions, as the legal heirs of the deceased.

But the judge a quo failed to express any opinion on the other questions in the case; though his decree results in the rejection of the contention of the defendant in toto, as well as_those of the intervenors in all other respects.

' It is, however, evident to our minds that, in so far as the decree of the lower court recognizes the title of the intervenors to one undivided half of the property, it is clearly correct and supported by the evidence; and, quoad their half interest, the plaintiffs’ exceptions were altogether unavailing. For the law is that, at the death of one of the members of the community, the title to community assets vests in the survivor and the legal heirs of the deceased, in full, joint ownership — subject to a qualification that will be subsequently noticed. Applying that rule of property to the facts of this case, and it at once becomes evident that the half interest of the intervenors as the legal heirs of Mrs. Martha A. Cooper, deceased, did not pass under the plaintiffs’ mortgage; and such is the legal aspect of the case, irrespective of the fact that nothing was exhibited on the face of the conveyance records or on the assessment rolls to the contrary; however potent the effect of same may have been as to the defendant. But in the aspect of the case in which it is at present considered, the title of the intervenors rests exclusively upon their inheritance from their mother, as the deceased member of the community, which had no relations with the piaintiffs, and whose debt against the defendant was not contracted until long subsequent to its dissolution. And the indebtedness of the defendant having been created since the dissolution of the community, it could not in any way affect the title which had vested in the intervenors, unless they had done some act which operated an inducement to the plaintiffs to alter their previous position and accept the defendant’s mortgage.

Such, however, is neither the claim nor the tendency of the plaintiffs’ averments, nor the proof.

But a more serious and interesting aspect of the case is addressed to our consideration in the averments of the intervenors, which are-to the effect that at the time of their mother’s death, in December, 1883, their father, the defendant, was largely indebted to her on account of moneys received and properties converted to his use and that of the community, all of which was that of their mother’s separate paraphernal estate, and that said indebtedness was due by the-community to them as the legal heirs of the deceased, they becoming, by virtue of their inheritance from their mother, the creditors of the community in her place and stead. And they are further to the-effect that the defendant, A. B. Oooper, possessed, as the surviving member of the community, “no ownership or interest in the community property until he had settled the debts of the community; ” and that “they, as creditors of the community, are entitled to be paid out of said A. B. Cooper’s estate, and part of the community, in preference to debts contracted by him subsequent to the death of his wife.”

The intervenors take the initiative, and judicially admit that there was never an administration upon the estate of their deceased mother, and aver that no tutor was ever appointed or qualified— natural or dative — to represent them, they being minors at the time of their mother’s death; and they further aver that had there been an administration of their mother’s estate, their father would have been powerless to contract debts to bind her estate or the property of the dissolved community, or any part thereof, until the succession of the deceased, and the community had been finally wound up, and that he had no greater power or right to bind said property in the absence of an administration. They further aver that the mortgage which the defendant executed upon his one undivided one-half interest in the community property was and “ is null and void because it was made on property of the marital (community) or partnership before (same) was settled between the surviving spouse and (themselves) as the heirs of the deceased spouse, which settlement, when made (disclosed) that A. B. Cooper owed his deceased wife more than the value of his interest in the community.”

Two propositions are thus demonstrated, (1) that the intervenors recognized the existence of the plaintiffs’ mortgage on the defendant’s half interest in the property, as an asset of the community, anterior to the date of their alleged settlement with their father, the defendant, through the instrumentality of thp dation en paiement to them of the property mortgaged; (2) that their mother’s paraphernal claim of four thousand six hundred dollars against her husband, the defendant, was not recorded during her lifetime, nor after her death, prior to the date of the registry of the plaintiffs’ special mortgage — thus eliminating the question of the rank of legal and conventional mortgages.

These two propositions being conceded, the question of law is squarely presented on the intervention and answer, as to the enforceability vel non of the plaintiffs’ mortgage against the defendant’s share in the community property, before community debts have been liquidated and settled — said community debts being unsecured by mortgage oí any kind.

This court has decided uniformly, and in varied forms of expression, (1) that at the dissolution of the matrimonial community by the death of either spouse the property acquired by the community vests in the surviving spouse and the heirs of the deceased in joint ownership; (2) that if the community have creditors they can have it liquidated, or pursue the survivor and heirs who have accepted it, ‘‘and subject the property to the satisfaction of their debts by divesting the title thus acquired; ” (3) that if the community has no creditors, the title which the survivor and the heirs have acquired becomes absolute and indefeasible. Vide Dickson vs. Dickson, 36 An. 453, and authorities cited.

As interpreting the defeasibility of the title of the survivor of the community and the heirs of the deceased partner, the following terse expressions of opinion may be quoted, viz.:

“ According to our understanding of the .Code the distinct interest of the parties attaches at the dissolution of the marriage, subject, however, to the right of the wife or her heirs to renounce, and thereby exonerate themselves from the payment of community debts. His (the husband’s) authority as master of the community ceases on the dissolution of the marriage. The right of the heirs of the deceased party then attaches to have a partition of the effects, subject to the payment of debts.” German vs. Gay, 9 La. 382. (Our italics).

After the death of one of the spouses, the community, in a legal sense of the word, is terminated. Each party is seized of one undivided half of the property, subject to the payment of debts.” Hart vs. Foley, 1 R. 381.

The heirs of the deceased become seized of the property of their ancestor at the moment of his death. The surviving widow is seized of one-half of the community property, and the heirs of the other. The title vested continues in them, subject to be divested at any time by the creditors, or the administrator for them. (Our italics.) Ware vs. Jones, 19 An. 428.

The community of acquets and gains is dissolved by the death of the wife. The respective interests of the surviving husband and of the (heirs) of the deceased wife attach at the moment of the dissolution to the property of the community subject to the payment of community debts. Tugwell vs. Tugwell, 32 An. 848; Bartoli vs. Hugenward, 39 An. 411; Heirs of Murphy vs. Jury & Gillis, 39 An. 785.

As we said in a recent case that “ the theory of our law is that a community of acquets and gains has, after the decease of one of its members, only a fictitious existence, for the purpose of liquidation and settlement of community debts; ” and that in the absence of community debts the respective interests of the survivor and heirs “ attached to the community at once and irrevocably, and thereafter it continued to be property held in joint ownership,” etc. Succession of Dumestre, 42 An. 411.

The foregoing decisions express a consensus of opinion by this •court that is absolutely authoritative, to the effect that the title of the survivor, and the heirs of the deceased member of a dissolved matrimonial community, is vested in them fully only in case there are no community debts remaining unpaid; but, in case there remain community debts unsatisfied, the community possesses a fietiiious existence, after the death of one of its members, for the purpose of liquidation and settlement of such community debts; and this, notwithstanding the surviving husband’s authority, as master of the community, ceases on the dissolution of the marriage.

This being the condition and status of the title of a surviving husband and partner of a community that has been dissolved by the death of his wife, it seems to be a clear proposition that the defendant, occupying the relation of debtor of his wife, and she at the same time being a creditor of the community, could not mortgage a greater interest or better title than he possessed in the real estate of the community.

We find in the opinion of this court in Dickson vs. Dickson, cited supra, the following statement, which is worthy of observation, to-wit:

“In either case — that is to say, whether there are debts of the community or not' — the widow and heirs can mortgage their interests in such property, if it be real estate, and the creditor acquiring •such property is entitled, in case of non-payment, to have it seized and sold to satisfy his claim, subject to be expropriated and outranked by creditors only of the community and of the deceased spouse, and whose mortgage was recorded anterior to his own, however, to be paid out of succession property.”

It would seem to place a restriction upon the claims of community creditors, as recognized in other decisions, by postponing the rights of one holding a special mortgage on the interest of the surviving member of a dissolved community,-to the payment of such community debts as may be secured by a mortgage duly recorded anterior thereto, and no others.

In our opinion that is an improper restriction on the rights of community creditors, and its maintenance would enable the surviving member of a community to defeat the collection of community debts out of his share altogether by contracting debts after the death of the deceased member and securing same by mortgage on his share.

Surely such was not the intention of the law, and is not the sense of our jurisprudence on the subject.

In the case of Dickson vs. Dickson, 37 An. 915, this court expressed it as their appreciation of tne sense of all the decisions on the subject, “ that a widow in community can not, whilst the succession is under administration and before its debts are paid, execute a valid mortgage on any specific property of the succession to the prejudice of creditors af the succession,” and then say: “Whilst therefore, a mortgage given by the widow in community during her administration of her deceased husband’s succession is not null, yet at the same time it can have no effect beyond her actual interest in the property, determinable upon a settlement of 1 he community.

“It is true that the widow’s interest in the community vests upon the death of the husband, but subject to the payment of the community debts, and, therefore, not to be ascertained till a final settlement. It would thence follow that where a mortgage is given to a certain number of heirs to secure a liability which the administration is under alike to all the heirs, resulting from her acts as administratrix, the giving of a mortgage could not confer a preference on the mortgagee over the other heirs. * * *

11 To this extent and limit the mortgage may seem to strip it of all effect and virtually pronounce it a nullity.”

By parity of reasoning this argument would seem to apply, with equal force, to a special mortgage executed by the surviving husband on his share of the community prior to its liquidation and the settlement of community debts; and to give to a special mortgage consented by a surviving husband on his share in the community propperty preference over the debts of the community that are unsecured would be to defeat the object of the law and make a defeasible title indefeasible.

In St. Charles Street Railroad Company vs. Fairex (46 An. 1022) we dealt with a similar question, appertaining to community property which had been partitioned between the widow and heirs, and against which a judicial mortgagee sought to enforce his right — the property having passed into the separate ownership of the parties.

The question propounded was: Did the creditors’ judicial mortgage against one-third interest in the community property precede all claims in rank and subject the property to the payment of the claim of the mortgagee “without regard to any pre-existing indebtedness” of the surviving widow to the defendant, and upon due consideration thereof the court said:

“If there was an amount due by Mrs. J. B. Schiller it was an amount for which her interest in the estate of her daughter was accountable. The two claims, that of the succession as a creditor, and that of Mrs. Schiller as a forced heir of her daughter, were subject to adjustment and settlement in the process of settlement in the latter’s succession.

“The mortgage of plaintiff could only be applied to the residuum of the settlement.”

That proposition being true in a case where a definitive settlement had been made, for a stronger reason must it be true in the instant case, where no settlement had been made at-all, and the mortgagor’s indebtedness contracted subsequent to the dissolution of the community.

Such was the exact situation of affairs presented in the recent case of Rawlins vs. Giddens, 46 An. 1136, in which it was “ decreed that the rights of plaintiff under the mortgage claimed by him herein be restricted to the interest of D. M. Giddens in the community between himself and his deceased wife, Mary J. Armistead, to be ascertained in proper proceedings;” no judicial settlement of that community having been made, and plaintiffs’ mortgage having been consented subsequent to the death of the wife.

It is of no consequence that there had been no administration of the estate of Mrs. M. A. Cooper, and that no tutor had been appointed to represent the minors. That their rights had remained, in a certain sense, inchoate can not have the effect of defeating the just claims of the intervenors, as creditors of the unliquidated community, or of estopping them from the assertion of their demands; nor does the fact that the property mortgaged had not been listed for taxation as that of the community divest the rights of the intervenors as community creditors, or operate as a fraud on the rights of plaintiffs as mortgagees. For had they taken timely and proper precaution to scrutinize defendant’s title, and to interrogate the defendant with reference to the rights of his deceased wife’s children, the difficulty might have been obviated by a proper renunciation, or their interests protected by a declination of the mortgage altogether.

Our conclusion is, that the plaintiffs’ mortgage is perfectly good and valid in respect to the defendant, but that it can only be enforced against the residuum oí defendant’s share in the community after the same has been liquidated and settled by the payment of the amount ascertained to be due the intervenors as the heirs of Mrs. M. A. Cooper, deceased.

That while we are satisfied from the record that the deceased was the owner of considerable separate property, of which she had the administration and enjoyment, and that the defendant became largely indebted to her for paraphernal funds received and used; that during the existence of the community, there was accumulated considerable property which remained in indivisión subsequent to its dissolution by the death of the wife, which was primarily liable for the payment of the debt due the deceased; yet, inasmuch as there has been no liquidation and settlement of the community, we are of opinion that all parties should be relegated to this settlement and full adjustment for the ascertainment of their rights, respectively, as we did in the case of Pior vs. Giddens, 46 An. 1406, and that of Rawlins vs. Giddens, 46 An. 1136.

But this decree is not intended to disturb, or in any manner affect the rights of the plaintiffs under the act of mortgage in respect to the residuum of the defendant’s share of its assets after community debts are paid; nor to affect the rights of intervenors under the dation en paiement, subordinated as it is to the mortgage, in respect to the aforesaid residuum — same having been accepted in good faith, on the pai’t of the intervenors, for a perfectly valid and apparently adequate consideration.

And, as the case is to be remanded, it is well to state, for the purpose of simplifying the issues for the court a qua, that from the evidence we are satisfied of the following facts, viz.:

1. That the note sued on was never intended or used for any other purpose than as a collateral security for the defendant’s current commercial account; and that it was from time to time renewed in writing, and extended, so as to prevent same from running to prescription.

2. That on the face of the plaintiffs’ account the apparent balance against the defendant is greater than the amount of the collateral security, though no demand is made for judgment thereon. Chaffe vs. Whitfield, 40 An. 631.

3. That the collateral note has never been novated or extinguished by other notes of the defendant subsequently executed for the reason that same were annually executed to and discounted by the plaintiffs and the proceeds thereof placed to the defendont’s credit; and, in the usual course of their dealings, same were satisfied by the proceeds of the sale of the defendant’s crops and extinguished. Mix vs. His Creditors, 39 An. 624.

4. That while it may be true that the plaintiffs have charged the defendant usurious interest and commissions on cotton neither received nor sold, yet plaintiffs rendered their accounts to the defendant regularly, and same were by the defendant acknowledged in writing to be just and correct, and that the effect of said written acknowledgments and waivers is to require of the defendant exceptionally strong proof of error in making same — much stronger than the record affords — before he can be relieved from their effect.

Considering the foregoing established facts, there are only the following questions left open for examination and decision in the course of the settlement and adjustment that is to be made of the community between the defendant and the heirs of his deceased wife, quoad the claims and demands of the plaintiff against the defendant, viz.:

1. The amount of the indebtedness of the community to the intervenors, and others, if other creditors there are.

2. The value of the assets of the community liable for the payment thereof.

3. The justness and amount, if any, of the claims of the plaintiffs against the intervenors, on the score of benefits received by them, during the course of their father’s negotiations with plaintiffs.

4. The amount of the plaintiffs’ claim against the defendant, on open account, as the primary obligation of the defendant, and the ■.amount of the residuum of his share of the community assets that are •applicable to their payment.

Entertaining these views, it becomes necessary to reform the judgment appealed from.

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 have and recover judgment on the note and mortgage sued on only as collateral security for the defendant’s current, running commercial account, and with the reservation that ¡same is limited and restricted, in its operation and effect, to the residuum of defendant’s interest in the property mortgaged, after the liquidation and payment of the debts of the dissolved community between the defendant and the deceased mother of the intervenors ¡and other community creditors; and not to be enforced at all until the final balance of the defendant’s primary indebtedness, on open account, is first judicially determined.

It is further ordered and decreed that the intervenors be recognized and decreed the owners ia indivisión of one undivided one-half of the property mortgaged and other community assets, subject -to the payment of community debts, free from the grasp of plaintiffs’ special mortgage; and that as heirs of their deceased mother, Mrs. M. A. Oooper, they are creditors of the defendant and of the community to the extent he is ascertained to have been indebted to the deceased at the time of her death; and, as such creditors, they are entitled to be paid out of the defendant’s half interest of the ■ community assets in preference to the plaintiffs as his individual creditors.

It is finally ordered that this cause be reinstated and remanded for the purpose of settlement of the dissolved community, in conformity ■to law, and the views herein expressed, and that appellees be taxed with all costs of both courts.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 11,645.
    Ferdinand Gumbel & Co. vs. J. A. Boyer, Sheriff, et al.
    1. In case the hoicler of a negotiable promissory note, in pursuance of an agreement between the maker and the assignee, makes atransfer thereof by written assignment without recourse, this assignment must he interpreted by the precepts of the Chil Code, and not by those of the law merchant.

      2. If in place of this formal assignment the holder had. placed his simple endorsement on the paper, the assignees could, in all likelihood, have availed themselves of the benefit of the rule that one who assigns to another one of a series of concurrent mortgage notes can not come in competition with the assignee, if the security be insufficient to pay both.
    3. The legal effect of the transaction under consideration is a payment by third opponents with subrogation, which does not give the assignees any right of preference over the assignor, for the balance remaining due him.

      Coco, J. PPEAL from the Tenth District Court, Parish of Avoyelles.

      O. H. Gouvillon for Plaintiffs, Third Opponents, Appellees.

      William H. Peterman and Glegg & Thorpe for J. A. Boyer, Defendant, Appellant.
   The opinion of the court was delivered by

Watkins, J.

This suit is brought by way of third opposition, opponents, F. Gumbel & Co., claiming the proceeds of the sale of property sold under and by virtue of the executory proceedings of J. A. Boyer vs. J. V. Moreau, in the foreclosure of a mortgage; by reason of their alleged precedence in rank of privilege and mortgage, resulting from an assignment to them of another of the same series of mortgage notes by J. A. Boyer, the seizing creditor, the proceeds of sale being insufficient to pay both.

To this third opposition the seizing creditor replied in answer, that opponents never purchased the note in question, but paid same, and thereby extinguished the mortgage securing its payment. Hence the sole question for the court to determine is whether the transaction between the parties was a purchase or payment of the note opponents found their claim upon.

This suit was brought before this court last year, and was remanded for the purpose of permitting the introduction of certain evidence that had been rejected by the court a qua, and this evidence having been admitted on a second trial, it is again before us for final decision. Ante, 46 An. 762.

It appears from the evidence that opponents were cotton factors, doing business in New Orleans, and that J. V. Moreau, the mortgagor, was their client, and had an open running account with them at the -date of the transaction in question. That in December, 1881, Morean purchased of Boyer a plantation, executing a series of several notes for the purchase price, securing same by special mortgage. It is with regard to one of these notes that this controversy took place.

It seems that Moreau requested opponents to pay Boyer this note -on presentation by him, but that on presentation payment was refused — first, because the letter to that effect was not written by Moreau personally; and, second, that they did not wish to pay, but would purchase the note if Moreau requested them to do sc.

On account of the delay incident to opponents obtaining a communication from Moreau on the subject, Boyer left the note in the hands of Hernandez, his own factor, for collection, and placed a transfer on the reverse of it — the endorsement being couched in the following words, viz.: “For value received, 1 hereby transfer the within note to Ferdinand Gumbel & Co. with all of the rights and interest I have in said note, without recourse against me.”

When Boyer subsequently met Moreau, he informed him that •opponents would require a letter from him (Moreau) before he would “ pay the note,” thus evidencing the clear and evident impression •of Boyer to have been that opponents would pay the note, and that his written endorsement was inte ded to facilitate this arrangement.

It appears to us to be of little co osequence what was the character •of the neg fiiations between opponents and Moreau, for, assuredly, they were powerless, by any mere convention of theirs, to perfect the ■sale of the note from Boyer to opponents. To accomplish this object, the assent of Moreau, the debtor, was altogether unnecessary and unavailing. The proof shows that, at the time of this transaction, Moreau had shipped sufficient cotton to the opponents to cover his debits and leave a small balance to his credit; and that he had additional cottons to ship them. It further shows that at the end of the season Moreau had a cash balance to his credit of about fifteen hundred dollars, not taking the note into consideration. It appears from the evidence that after third opponents filed their petition claiming the whole amount, they, on. their own motion, placed that amount to Moreau’s credit on the note.

Consequently, at the time of the correspondence between opponents and Moreau, it was, evidently, a question of doubt as to whether there would be a sufficient amount to the latter’s credit at the end of the cotton season to liquidate the note, and hence the evident hesitancy of opponents to pay the note for Moreau, and thus, place themselves in a situation in which they might sustain a loss, as-payment would destroy the security of a mortgage, and the funds in their hands be insufficient to meet Moreau’s account.

It thus becomes quite clear to our minds all that third opponents could claim is that the legal effect of this transaction was a payment., with subrogation to all the rights of Boyer against Moreau. But-that being conceded, the written endorsement of Boyer on the note,, when read in the light of the acts of the parties, could not be given the effect of placing the opponent’s privileges in the front rank and giving same preference over that of Boyer. The words of the assignment, “without recourse against me,” would be rendered meaningless otherwise.

If, in place of the formal .transfer without recourse, Boyer had placed his simple signature on the note, opponents could have in all likelihood availed themselves of the benefit of the rule of the commercial law to the effect that one who assigns to another one of a series of concurrent mortgage notes can not come in competition, with the assignee if the security be insufficient to pay both.

Our Civil Code establishes a contrary rule as governing a ease of this kind. It declares that such payment with subrogation “can not injure the creditor, since, if he has been paid but in part, he may exercise his right for what remains due, in preference to him for whom he has received only a partial payment.” Revised Civil Code, 2162.

. In the lower court there was judgment in favor of the plaintiff, decreeing him entitled to be paid the full amount of his claim out of' the proceeds of sale in preference to Boyer, the seizing creditor. That judgment must be reversed and the demands of opponents rejected.

It is therefore ordered and decreed that the judgment appealed from be reversed and annulled, and the demands of plaintiff rejected, at his cost in both courts.

Rehearing refused.


text:
    No. 11,609.
    Walter J. Torian, Jr., vs. William F. Weeks.
    1. Claim may be made in same suit for the wages of an. overseer, tlie value of' crops disposed of, that of supplies and money furnished to make and gather-a crop of rice and for the use and hire of teams employed thereon, and the.board of laborers — the allegations and proof disclosing that the plaintiff was at one and the same time overseer for the defendant on one plantation and that the two were engaged in the cultivation of another on shares. All of these items are matters properly embraced in one general plantation settlement be-. tween the parties.
    2. The proof administered on the trial of an exception of want of proper parties, plaintiff disclosing the fact that the contract relative to planting a crop on shares was made and entered into by and between the plaintiff and defendant alone, the former is capacitated to sue the latter in the enforcement thereof, notwithstanding the former subsequently made an agreement with d^thirdperson whereby he was to share his interest — the defendant not being advised of such subsequent agreement and consequently not participating therein.
    3. Having ascertained, for the purpose of determining the status of the exception,, that the third person was not a necessary party plaintiff, the trial and decision of theplaintiif’s demands can not be embarrassed thereby on the merits.
    PPEAL from the Nineteenth District Court, Parish of Iberia. Voorhies, J.

      Foster & Broussard for Plaintiff and Appellant.

      Gilbert L. Hall for Defendant and Appellee.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff sues for three thousand one hundred and ten dollars and two cents as the balance due on a stated account annexed to his petition; and Ms claim is, first, for wages as overseer for ten and one-half months, in the year 1892, at fifty dollars per month, aggregating five hundred and twenty-five dollars; second, for supplies advanced to the defendant and used upon the plantation of which he had the management, and also for the service and use of Ms teams and implements in the cultivation of same, aggregating one thousand seven'hundred and sixteen dollars and eight and one-half cents; and third, for the value of one thousand and ninety sacks of rice at two dollars and seventy-five cents per sack, which was produced by plaintiff on the land of defendant, which was cultivated on shares.

The annexed account shows total amount of debits against defendant of five thousand one hundred and ninety-three dollars and eighty-three cents, subject to credits amounting to two thousand and eighty-three dollars and eighty-three cents — leaving the resulting balance stated above.

There is a discrepancy between the petition and the account in respect to the amount of the account for supplies and the labor furnished — the amount claimed in the petition being two thousand five hundred and eighty-five dollars and two cents, while that shown by the account is only one thousand six hundred and ninety-six dollars and thirty-eight and one-half cents. The latter is controlling.

The record shows that the plaintiff engaged his services to the defendant as an overseer on one of his plantations for the year 1892, and that the two made an agreement to cultivate one hundred acres of another place on shares during the same year — the plaintiff to receive two-thirds and the defendant one-third of the rice thereon produced.

In limine the defendant tendered several exceptions: (1) that the plaintiff has improperly cumulated inconsistent and contrary causes of action; (2) that the petition is vague and indefinite, not setting forth the dates, places and circumstances of the various contracts and covenants which are alleged upon with sufficient certainty to enable him to plead thereto; (8) that it does not set forth any agreement to furnish supplies, teams or implements for any particular plantation, and when made, either written or verbal; (4) that the allegations of the petition set forth no cause of action; (5) and, finally, that proper parties plaintiff were not made, because one Montgomery was a partner of plaintiff in the cultivation of the crop, which was cultivated on shares.

These exceptions having been overruled the defendant filed an elaborate answer, which is of the following tenor, viz.:

1. “That he employed plaintiff as overseer on his rice plantation in February, 1892, for the year, at fifty dollars per month; but that he only worked nine months, and left his premises in the early part of December, to the serious negject of his duty and to the great injury of the respondent.” That he paid him ninety-nine dollars and seventy-five cents on his account for services in April, 1892, and that it was agreed and understood between them that the residue of his wages were to be, by the defendant, retained as security for advances that were to be made by the defendant to the plaintiff, Torian, and his partner, Montgomery, to enable them to make and gather a crop of rice they cultivated with him on shares.

2. That Torian & Montgomery were wholly without means to make a crop for themselves, and that plaintiff never furnished a dollar in money, or its equivalent, to make a crop for the respondent, or to pay off his laborers.

8. That plaintiff did not do any hauling, ploughing, or any kind of work to make the crop, except with the teams of respondent; and that if the plaintiff so used his .own teams it was unauthorized, and not ratified by respondent, who had an abundance of teams of his own; and he consequently denies and disavows all liability on that score.

4. That he entered into a contract with Torian & Montgomery to cultivate one hundred acres of land in rice, on shares at their own expense, one-third of which was to belong to respondent and two-thirds to Torian & Montgomery. That all of said crop was to be shipped to the account of the respondent, and that he was to be reimbursed from the proceeds thereof the value of supplies he may have made to them on the partnership crop.

5. He charges that'during his absence Torian & Montgomery worked their crop and his, indiscriminately, cut and harvested his and their crops together — all without his knowledge or authority— and- so as to render same indistinguishable. That they secretly shipped to G. W. Sentell & Co., in violation of their contract, three hundred (800) sacks of rice, which was sold for their account, and for which they retained the proceeds. That they likewise shipped the remainder of the crop to Flower & King, and retained the proceeds until they were forced to surrender same, under threats of a criminal prosecution.

The answer admits all the credits enumerated on the plaintiff’s account — alleging same to have been for the supplies he had furnished Torian & Montgomery.

He alleges, further, that he advanced them during the year 1892 the sum of four thousand and forty-seven dollars and ninty-four cents in supplies, for which the firm of Torian & Montgomery are indebted to.him.

He prays that the plaintiff’s demands be rejected, in so far as they conflict with the averments of this answer; and that he have judgment in his favor, declaring that the planting partnership of Torian & Montgomery carried on a rice-planting adventure with respondent on shares, whereunder said firm was to receive two-thirds and respondent one-third of the crops produced; and that he have and recover from them, on his reconventional demand, the sum of four thousand and forty-seven dollars and seventy-four cents for advances and supplies furnished to make the crop. That they be credited with two-thirds of the proceeds of che rice when sold, or its value when ascertained; and that the plaintiff, Torian, be credited with the amount of his overseer’s wages for nine months, less the sum of ninty-nine dollars and seventy-five cents — the defendant to have judgment for the resulting balance in his favor.

A trial was had on the issues thus made up, and a judgment rendered in favor of the plaintiff for the sum of four hundred and thirty-nine dollars and twenty-two cents — rejecting defendant’s re-conventional demand as of non-suit.

After an unsuccessful effort to obtain a new trial, the plaintiff appealed, and in this court assigns that he is entitled to have the judgment in his favor so increased as to award him the full amount he claimed in the petition; and the defendant joins in the appeal and demands judgment over against the plaintiff for one thousand and thirty dollars and seventy-two cents and all costs.

As it is a question of serious controversy between the parties, and urged by the defendant in exception, answer and argument, we must determine at the beginning whether Montgomery and the plaintiff, ToriaD, were partners in the planting enterprise; and answering that query, we will state that the evidence satisfies our minds, as it satisfied the mind of the District Judge, that the contract was, primarily, between the plaintiff individually and the defendant, though it subsequently transpired that Torian agreed to let Montgomery have an interest with him without the knowledge or concurrence of the defendant. Consequently, Montgomery, as well as all the issues and defences predicated on his being a partner, may be omitted from further discussion.

With regard to the disposition made by the District Judge of the other exceptions, we are in accord with the views he expressed.

He was of the opinion that plaintiff had not improperly cumulated inconsistent demands, but that, on the contrary, the demands of the petition were of such character as the law favors the consolidation .

He also held that the allegations of the petition are not vague or inconclusive, and sustained the cause of action as well stated.

All other exceptions were relegated to the merits to stand as parts of the answer.

But, notwithstanding the views that were entertained by the judge a quo with regard to the partnership of Torian & Montgomery, in deciding the exceptions as to the proper parties, he declined to entertain or consider the plaintiff’s demands for the use of teams and utensils, and work done therewith for the defendant, because the mules and carts were not his property, but that of the planting partnership of Torian & Montgomery.” This appears, to our minds, inconsistent. If we are not to consider Montgomery as a partner for the purposes of the exceptions, we can not in respect to the answer and the trial of the merits.

On the merits, we find the following facts substantially proved, viz.:

First: That the plaintiff made a contract with the defendant to superintend and manage one of his plantations as an overseer, for and during the year 1892, at a salary of fifty dollars per month; and that his services under the contract began on the 16th of January and continued until the 2d of December, at which date the defendant consented that he should leave. He was, consequently, entitled to receive ten and one-half months’ wages, equal to five hundred and twenty-five dollars, the exact amount claimed on that score.

This is admitted in defendant’s answer and brief, with the qualification, however, that he had paid him in April, 1892, the sum of ninety-nine dollars and se\enty-five cents in the value of seed rice.

But, as there is no special agreement between the parties that this sum should be imputed as a credit on plaintiff’s wages as overseer, and as he placed same to the defendant’s credit on his general account, we prefer to treat this item under a different head, and hold the defendant for the entire sum, as an item of debit on the account as stated, no part of said wages having been otherwise paid.

Second: That the plaintiff and defendant entered into an agreement under which the plaintiff was to cultivate one hundred acres of defendant’s land in rice, during the year 1892, on shares, the defendant to receive one-third of the crop of rice produced, and to pay the expense of harvesting, threshing and hauling same, and the plaintiff to receive the other two-thirds, and to do all the work and pay all expenses other than those enumerated. Or, in other words, Weeks was to furnish the land, seed rice and machinery — such as reapers, binders and threshers, and to pay for one-third of the harvesting expenses, and furnish his own sacks, and sack his one-third of the rice; and Torian was to be at all other expense and labor in the cultivation and manufacture of the crop.

Subsequent to the perfection of this agreement the plaintiff, Torian, made an agreement with Montgomery to take an interest with him in this rice crop adventure, but, as we have already stated, without the knowledge of the defendant, Weeks. Hence the original contract was unaffected by the arrangement between Torian and Montgomery, and the only interest that the defendant had was in realizing his one-third of the rice.

Under this agreement the land was cultivated and the yield of rice amounted to two thousand and eighty-five sacks, entitling the plaintiff to receive one thousand three hundred and ninety and the defendant to receive six hundred and ninety-five — the contract between Torian and Montgomery being that they were to share equally. This is shown by testimony of three or four witnesses. The testimony further shows that the plaintiff shipped three hundred sacks of this rice to G. W. Sentell & Go., of New Orleans, and one thousand and seventy-two to Flower & King, likewise of New Orleans, and that the remaining eighteen sacks were retained on the plantation. This was the share of the plaintiff, Torian. Of the. three hundred sacks he and Montgomery received the proceeds and defendant received the remainder; though he has not paid same over to the plaintiff, nor rendered him any account thereof. This was admitted by Weeks on the witness stand.

From the foregoing it is clear that the defendant is liable to the plaintiff for the market value of one thousand and ninety sacks of rice on a settlement of accounts.

It is in proof that this crop of rice was harvested during the months of September and October, and was shipped during the latter part of October and the early part of November of 1892. The three hundred sacks that were shipped to Sentell & Oo. were sold in October, and the proceeds thereof received by the plaintiff, and the account sales show thatsame was sold at prices ranging from $2.40 per sack to $2.75. This is the price plaintiff demands; though the position the defendant assumes is that the rice that is in the hands of Flower & King has not been disposed of, and that he can not be compelled to make a settlement until sales are made, and that he will only be liable to the repetition of the amount actually received. Our opinion is that the plaintiff is entitled to the value of the rice at the time it went to market, and might have been sold, particularly in view of the fact that the plaintiff’s instructions to Flower &King were to sell at that time.

We note the contention of the plaintiff’s counsel to the effect that a saelc of rice contains one and a quarter barrels, and upon that estimate he is entitled to compensation for one thousand three hundred and forty barrels, as the contents of one thousand and ninety sacks. But we aré not disposed to adopt that basis of calculation, inasmuch as all the transactions of the parties have been predicated upon sacks, and not upon barrels of rice.

Taking a mean between the two extremes, we find two dollars and fifty-seven and one-half cents per sack to be about the correct figure; and at that price one thousand and ninety-two sacks would be worth two thousand eight hundred and eleven dollars and ninety cents.

This amount the defendant has not paid to the plaintiff nor accounted therefor; and he is, therefore, responsible to him for that sum on settlement of accounts, less the approximate charges and expenses of shipping and selling the one thousand and ninety sacks of rice, which may be safely fixed at seven hundred dollars — thus placing the net proceeds of plaintiff’s crop at two thousand one hundred and eleven dollars and ninety cents.

In this estimate we have placed the value of five dollars per sack on the eighteen sacks of seed rice which plaintiff left on defendant’s place, making ninety dollars in all; and in so doing we thought it a just estimate, as defendant had charged the plaintiff ninety-nine dollars and seventy-five cents for fifteen sacks of seed rice furnished him in April previous.

Third: The claim for supplies and labor furnished may be properly and conveniently divided into three items, as the plaintiff’s counsel have divided it in their brief, as follows, viz.:

(a) Cash paid to laborers on defendant’s plantation, sevep hundred and seventy-six dollars and fifty-five cents.

(5) Amount for ploughing, hauling and use of teams, six hundred and eight dollars'and thirty-five cents.

(c) Amount expended in moving crops and board of hands, etc., three hundred and eleven dollars and eighteen and one-half cents, the three items aggregating one thousand six hundred and ninety-six dollars eight and one-half cents.

(a) With regard to the cash paid laborers, the plaintiff, as a witness, states — making reference to the items of his account — that in June, 1892, he paid out forty-six dollars, which he had realized from the sale of cattle. That “the amount paid was for the benefit of Mr. Weeks — paying his hands for working his place; the portion (plaintiff) was managing — i. e., his individual crop.” That in July he expended, from the same source and for like purposes, thirty-four dollars and sixty cents for the defendant’s account. That in September he expended in the same manner two bundx-ed and xxine dollars; and in October one-hundred and twenty-eight dollars and twenty cents; and in November three hundred and thirty-nine dollars and thirty-five cents. He says that he raised these amouxxts principally from the discount of his drafts on Sentell & Co., to whom he had shipped three hundred sacks of rice.

This accounts for all the items on his account except one of twenty dollars, which he explains by pointing out a credit on his account of fourteen dollars in favor of the plaintiff, and thus entitling him to this item also.

The defendant, as a witness, as well as in his answer, disavows all authority for or knowledge of these traxxsactioxxs; but the statement of the plaintiff is plain and straightforward, and he gives the dates, circumstances and amounts paid.

In addition to these facts, it is in evidexxce that the defendant was absent from the State during the greater part of the time and could have had no personal knowledge of them. If indeed, as it appears, the plaintiff did furnish the laborers on the defendant’s plantation, he ought to be reimbux-sed his outlay; and being the trusted agent and overseer of the plaintiff, it can not be fairly presumed that he did not exercise good judgment in making the expenditures.

But it appears that some of the items are somewhat questionable, at least to the extent of about two hundred dollars, and, givixxg defendant the benefit of the doubt, we will reduce the total amount of this item to five hundred and fifty-seveix dollars and fifteen cents.

(6) With regard to the item for ploughing, hauling, use of teams, etc., the plaintiff points out the various items on his account, making the aggregate sum claimed, and states that the first two items of nine dollars and seven dollars and fifty eexxts were for hauling lumber for,the building iix which he lived on the plantation he was overseering for the defendant. The next item of ten dollars was for ploughing land on the same place, with witness’ own teams, in March of that year. The next item of twenty-one dollars is for six days’ harrowing on defendant’s place with witness’ own mules. And so, through the entire account, he identifies and explains each and every item that is charged against the defendant.

Not only is this the positive statement of the plaintiff, but it is supported by the testimony of at least four apparently disinterested witnesses, who are equally as emphatic and uncontradicted. And several witnesses state that the prices charged are customary and reasonable.

There are two or three items, about the amount of which there is some doubt, and we think it but fair to make a reduction of one hundred and thirty -five dollars, making the total amount due plaintiff on this score four hundred and seventy-three dollars and thirty-five cents.

(e) With regard to the amount expended by the plaintiff in saving crops of the defendant, and in board of laborers, the plaintiff, as witness, states that he paid the entire expense of harvesting the crop which was cultivated on shares, and that the defendant’s portion thereof was two hundred and thirty-five dollars and seventy-eight cents, as stated-in his account; and, under the contract, the defendant was responsible for that expense. By “ saving ” the crop witness states that he meant cultivating, threshing and harvesting the crop of rice, and hauling the sacks of rice to the depot for shipment.. He furnishes the names of the defendant’s laborers whom he boarded, and for which he makes a charge in his account of seventy-six dollars, and states that he boarded them at different times during the year, and furnished the provisions to feed them. That they were carpenters, engineers and field hands. That he furnished and paid the board of the hands — charging only twenty-five cents per day. He is supported in his testimony by Montgomery, who says that he lived in the house with Torian, and was cognizant of the facts detailed by Torian, and the charges made are legitimate. The next item is for the value of a cooking stove and utensils which he purchased and expended twenty dollars for it. That it was left in defendant’s possession, and he has refused to surrender it upon demand. The stove and other articles are worth twenty dollars.

It is equally well established that the plaintiff paid Foster & Broussard nineteen dollars and forty cents for account of the defendant. But inasmuch as the plaintiff had the use of the stove and cooking utensils for one year, we are of the opinion that ten dollars would be enough for them.

This claim should then be placed at three hundred and twenty-one-dollars and seventy-eight cents. The three items — a b and c — will aggregate then the sum of thirteen hundred and fifty-two dollars and twenty-eight cents instead of sixteen hundred and ninety-six. dollars and ten and a half cents, as claimed in the plaintiff’s petition. Consequently, we have this statement of plaintiff’s demands, as established by the evidence, viz.:

1. Overseer’s wages........................................................................ $523 00

2. Proceeds of plamtifl’s two-thirds interest in crop.................... 2,111 90

3. Expenditures, expense of labor, utensils, etc........................... 1,352 28

Aggregating the sum of three thousand nine hundred and eighty-nine dollars and eighteen cents ($8989.18), which is subject to credits admitted on the face of plaintiff’s account, aggregating two thousand and eighty-three dollars and eighty-one cents, leaving a net balance in plaintiff’s favor of one thousand nine hundred and five dollars and thirty-seven cents.

This brings ns to the consideration of defendant’s reconventional demand for the sum of four thousand and forty-seven dollars- and seventy-four cents for supplies furnished the plaintiff to enable him to make the crop which was cultivated on shares, including money advanced.

At the outstart plaintiff’s counsel'attract our attention to the fact that, notwithstanding the defendant in his answer formally admits the truth and correctness of the items of credit which are given him on plaintiff’s account — and which aggregate in amount two thousand and eighty-three dollars and eighty-one cents — he claims judgment againt the plaintiff on his reconventional demand for identically the same items of credit again. And our examination and comparison of the two accounts fully verifies the correctness of this statement.

For instance, we find in the defendant’s account, on which his re-conventional demand is predicated, the following entries, viz.:

In March, cash..................................................................................... $28 45

In April, cash.................................................................................... 25 26

In May, cash ....................................................................................... 27 10

In May, one beef.............................................................................. 15 no

In June, cash................................................................................... 16 00

In Juno, feed for stock....................................................................... 28 01)

In August, cash.................................................................................. 14 00

III Scpi-eiiibcr, cash............................................................................. 27 80

In October, for rice sacks..................................................................... 125 00

Twine .................................................................................................. 56 90

Cash, October..................................................................................... 142 00

Supplies furnished Dreyfous ......................................................... 365 25

Threshing 1390 sacks of rice.....i*......................................................... 139 30

Draft cashier ........................................................................................ 450 00

Draft cashed (April)........................................................................ 131 65

Draft cashed................................................................................... 260 00

Eighteen head of cattle (sold during year)............................................ 142 00

These amounts aggregate one thousand nine hundred and ninety-three dollars — only a few dollars less than the amount of credits admitted on plaintiff’s account, and of similar amounts and dates.

And a further examination and comparison made of the two accounts will show that the difference between them in favor of the defendant is thus made up, viz.: By charging in the month of March amounts in cash paid aggregating thirty-one dollars and sixty cents, in addition to the charge of twenty-eight dollars and forty-five cents above specified for that month. By charging cash items in April of two hundred and sixty-four dollars and ninety-two cents, in addition to the charge of twenty-five dollars and twenty-five cents, specified for that month; and including the item of one hundred and thirty-one dollars and sixty-five cents for a draft cashed in April, already charged in his account as above specified. By charging in May cash items aggregating eighty-three dollars and seventy-five cents, in addition to the charge of twenty-seven dollars and foyty cents and fifteen dollars specified for that month. By charging in June cash items aggregating ninety-three- dollars and ten cents, in addition to the items of sixteen dollars and twenty-eight dollars which Are specified for that month.

These are manifestly double charges, and they aggregate in amount five hundred and fifteen dollars and seventy-seven cents, and this amount should be deducted, as well as the sum of one thousand nine hundred and ninety-three dollars, as above specified, as double entries or duplicate charges.

The two sums aggregate in amount two thousand five hundred and eight dollars And 'seventy -seven cents.

Eliminating all of the foregoing duplicate charges from the defendant’s account, and we; have for examination the following remaining charges, viz.:

To one cart.......................................................................................... $90 00

Mules................................................................................................. 1,080 00

In August, cash................................................................................ 9 60

In October, cash............................................................................... 10 00

On November 14, repairs, etc............................................................. 14 00

November M, cash paid.................................................................. 150 00

Cash from P. S. Towles .................................................................... 20 00

Sacks of twine (October).................................................................. 119 21

Six beeves............................................................................................ 75 00>

These amounts aggregate the sum of one thousand five hundred and sixty-seven dollars and eighty-one cents. Taking up these items in the reverse order we find the following to be the facts exhibited by the record, viz.:

1. As to the six beeves, for which a charge of seventy-five dollars is made, it seems quite apparent that they are included in the general item of “ eighteen head of cattle sold during the year,” and for which a charge is made of one hundred and forty-two dollars. This item must be disallowed.

2. The six (6) preceding items are somewhat involved in doubt.

We are not advised of the true significance of the term sacks of twine,” and we can not appreciate the necessity for the use of one hundred and nineteen dollars and twenty-one cents worth of twine, in view of the fact that the plaintiff is previously charged with fifty-six dollars and ninety cents for twine in October.

But we will give the defendant the benefit of the doubt — though not entitled to it in law, nor in equity — and allow him the full amount of these items aggregating three hundred and twenty-two dollars and eighty-one cents.

The only two items remaining for our consideration are those for the cart and mules, and also the item for seed rice furnished the plaintiff in April of nine-nine dollars and seventy-five cents — previously adverted to.

This last item is admitted in plaintiff’s account to be correct, and defendant is credited with that amount, and consequently he is also entitled to this additional allowance on his reconventional demand.

With regard to the item of one thousand and eighty dollars for mules, it will appear from the record that a note was executed for that sum in February, 1892, in favor of A. B. Murray, representing the purchase price of six mules and signed by Torian, Montgomery and the defendant. That suit was brought on said note against all the parties and same is still pending — Murray having assigned his rights to G. L. Hall, who is the attorney for the defendant in this suit. The defendant has paid no part of said note for the price of the mules beyond the sum of two hundred and fifty dollars — his claim in his answer to the suit of Murray being that he is a simple endorser on the note, and that he has been discharged by reason of the principal debtors, or makers having been granted an extension of time. It does not make any difference, in so far as this case is concerned, as to what the outcome of that case may be, as it is quite evident that the defendant, Weeks, is not entitled to credit with the plaintiff for an amount in excess of the two hundred and fifty dollars he is shown to have actually paid. Non constat that the defendant will ever pay, even if the plaintiff does not.

The same is true in regard to the ninety dollars that is claimed as the price of the cart. The evidence disclosed that a similar note was furnished in this instance, and that no part of the same had been paid.

Hence the only items on the account of the defendant to which he is entitled to credit are the following, viz.:

1. The aggregate of the six items preceding the last above enumerated, amounting to three hundred and twenty-two dollars and eighty-one cents.

2. The item for seed rice, ninety-nine dollars and seventy-five cents.

3. The cash paid on note for mules, two hundred and fifty dollars.

The whole amounting to the sum of six hundred and seventy-two dollars and fifty-six cents.

We however note the contention of plaintiff’s counsel with regard to the item of one hundred and fifty dollars cash paid on November 14, and the explanation given of it by the plaintiff, and which is to the effect that Towles brought down to the plaintiff one hundred and ten dollars in cash and an order on Papet for forty dollars. That he collected on the order only thirty-two dollars, and he consequently gave the defendant credit for the one hundred and ten dollars and the thirty-two dollars collected, the two amounts aggregating one hundred and forty-two dollars, which amount is specified on the plaintiff’s account as a debit against himself, thus, viz.:

“ October — By cash, one hundred and forty-two dollars; ” and on the defendant’s account it is specified as a charge against the plaintiff, thus, viz.: “Cash, one hundred and forty-two dollars.”

The effect of this explanation is to show that this item of one hundred and forty-two dollars is identically the same as the previous item, “November 14, 1892, cash paid, one hundred and fifty dollars.”

The statement of the plaintiff is fully corroborated by the testimony of Towles. Therefore, on a more careful inspection of the evidence we have become satisfied that the item of one hundred and fifty dollars is an erroneous, or double entry, and should be deducted from the amount previously allowed, thereby reducing the amount to which the defendant is entitled to five hundred and twenty-two dollars and fifty-six cents.

Deducting this sum from the amount of one thousand nine hundred and five dollars and thirty-seven cents that is awarded the plaintiff on his demands, and there will remain a net balance due the plaintiff of thirteen hundred and eighty-two dollars and seventy-one cents, for which he is entitled to judgment.

We have examined this voluminous transcript, and the elaborate briefs of counsel on either side, with great deliberation and care, and arise from a study of the case with a clear conviction that the judgment appealed from should be amended and increased in plaintiff’s favor, so as to award him the full sum specified, and so as to reject and disallow the defendant’s reconventional demand in toto, except as above specified.

It is therefore ordered, adjudged and decreed that the judgment appealed from be so amended and increased as to entitle plaintiff to have and recover of and from the defendant the sum of thirteen hundred and eighty-two dollars and seventy-one cents over and above the amount awarded the defendant on his reconventional demand; and so as to reject and disallow the defendant’s reconventional demand in all other respects, the defendant and appellee to pay all costs of both courts.

On Application por Rehearing.

The following statement extracted from the brief of the defendant’s counsel puts very clearly the points on which he places reliance, viz.:

We respectfully submit that the judgment should be corrected by deducting an overcharge for two sacks of rice (which the court has fixed at 1092 sacks, when it was 1090) at $2.57# per sack....................... ......... $5 15

The charge of $5 per sack for 18 sacks ($90) should be reduced to $1.50 per sack, or $27, a reduction of ................................................................. 63 00

There should be a credit given Mr. Weeks for bill of Torian’s he paid Dreyfous ............................................................................................................. 36 00

A bill Mr. Weeks paid for repairs to cart for Torian....................................... 14 00

For bill Mr. Weeks paid Kochs ..................................................................... 8 75 The amount Torian’s rice brought is for 250 sacks marked TM, and claimed by him in his petition and account as specifically his, giving him its best prices for 52 sacks (Trans., p. 330), at $1.50 per sack.................................. 44 28

And for remaining 198 sack* at $L. 10 per sack, 198*224 of $90.............................. 7!) 20

The 22 sacks marked O X, which he claims is at about $2.30 per sack............... 50 60

There were 400 sacks maiked X shipped to account of Torian & Montgomery

(Trans , p. 24), the mean price of the rice marked X we have seen is $1.03 . 412 00 The mean price of the rice markedX O X, of which Torian claims 400 sacks,

we have seen is $2.37# per sack....................................................................... 950 00

The statement with regard to the error of two sacks of rice having been allowed the plaintiff in excess of the allowance demanded in bis petition is correct.

That is a mere clerical error, and it should be corrected, of course.

The second error assigned with reference to the eighteen (18) sacks of rice that were left on the defendant’s plantation can not be entertained. We think that this item was correctly disposed of in our opinion. In April of-1892 defendant let the plaintiff have fifteen sacks of rice for seed, and charged him ninety-nine dollars and seventy-five cents therefor; that is, at the rate of six dollars and sixty-five cents per sack; and the proposition submitted for our approval is, that for eighteen sacks of rice that plaintiff left on the defendant’s place in December of the same year, the latter should account at the price of one dollar and fifty cents per sack — a difference of five dollars and fifteen cents reduction in value per sack within a period of eight months. This seems anomalous, in view of the fact that defendant demanded and has been allowed the price of two dollars and fifty-seven and one-half cents per sack for the two sacks that were awarded the plaintiff through error.

We think that the defendant has no just ground of complaint of our opinion on this score, allowing the plaintiff only two dollars and fifty-seven and one-half cents per sack, while we at the saíne time approved of the defendant’s demand for six dollars and sixty-five cents per sack sold the plaintiff in April.

The three items of thirty-six dollars, fourteen dollars and eight dollars and seventy-five cents — while not covered by the accounts of the parties nor in the pleadings — may, as a matter of justice, be allowed the defendant. These items aggregate fifty-eight dollars and seventy-five cents.

The remainder of the statement is satisfactorily disposed of in our opinion, and our argument need not be repeated.

Conforming our opinion and decree to the foregoing observations, it is ordered and decreed that the amount awarded the plaintiff be reduced by the sum of sixty-three dollars and ninety cents, and as thus amended and reduced the same be affirmed.

Rehearing refused.


text:
    No. 11,629.
    State of Louisiana vs. Lem Flournoy.
    1. That an indictment for the crime of embezzlement of a clerk or depositary, under Sec. 905 of the Revised Statutes, is not defective or insufficient because not stating that a demand had been made for the return of the money or property embezzled.
    2. The question of such demand having been made is one that appertains rather to the quantum of evidence sufficient to convict, and not to the sufficiency of the allegations of the indictment.

      Taylor, J. PPEAL from the First District Court, Parish of Caddo.

      M. J. Cunningham, Attorney General, and John B. Land, District Attorney, for Plaintiff, Appellant.
    Defendant, Appellee, unrepresented by counsel on appeal.
   The opinion of the court was delivered by

Watkins, J.

The defendant was indicted under See. 905 of the Revised Statutes denouncing the crime of embezzlement against an agent, clerk, trustee, mandatary, depositary, etc.

To the indictment the defendant’s counsel filed a motion to quash oil the ground that same “is not sufficient in law;” and the motion having been sustained and the indictment quashed, the State has appealed.

Was the indictment sufficient in law?

The phraseology of the indictment is as follows, viz.:

“That Lem Flournoy, being then and there depositary of J. Thomas, did then and there, by virtue of his said trust, have, receive and take into his possession one cow, of the value of twenty-five dollars in United States currency, of the property, goods and chattels of the said J. Thomas, the said Lem Flournoy’s said depositor, and the said Lem Flournoy, depositary as aforesaid, the said cow, then and there feloniously and wrongfully did embezzle, use, and dispose of, contrary,” etc.

The trial judge assigned the following reasons for sustaining the motion and quashing the indictment, to-wit:

“ Because the indictment failed to allege that a demand had been made for the return of the property alleged to have been embezzled. Although it does not say so explicitly, in the case of the embezzlement of private property (which was the ease here) it would seem that the mere failure to pay should not be sufficient to convict.
“ There should, in such a case, be shown a demand as an essential ingredient for conviction, from which a wrongful or felonious appropriation could be inferred. The failure to pay without proof of such demand, that is of itself, would not therefore be sufficient to convict.
“This quotation is taken from State vs. O’Kean, 85 An. 901, in which it was held that before the offence of embezzlement can be mqde out, it must appear that a demand for the property embezzled was made; and whatever is essential to be proved, it is essential to allege.

“See Desty Criminal Law, Sec. 146; 2 Bishop Criminal Law, Sec. 37.”

The counsel for the State insists that the principle quoted by the trial judge from the O’Kean case relates to the quantum of evidence sufficient to convict, and not to the adequacy of averment in the indictment charging the embezzlement; and that the question in that case ar®se with respect to the charge of the judge, and not with respect to a motion to quash the indictment.

An examination of the O’Kean case discloses that language quoted by the trial judge from our opinion is found under the head styled “the third ground of complaint,” which was “that the judge (had) refused to charge the jury that the failure of the accused to pay over the money, if unexplained, does not of itself raise a presumption of a felonious appropriation sufficient to convict.”

And it further appears from our opinion that the requested charge ought to have been given by the trial judge, though it was not — citing the authorities — and we said: “ Decreeing that the charge included in the third bill should have been given, we must remand the case.”

It is clear, therefore, that the expression of the court selected from that case was in reference to the charge of the judge to the jury, and not to a motion to quash the indictment.

Not only is such the case, but the opinion furnishes still further proof of the inapplicability of the principle announced to the sufficiency of an indictment for embezzlement, in that upon the examination of the second bill of exceptions it stated “that the judge refused to instruct the jury: ‘ That the information charges that the money was embezzled as a clerk, and the evidence establishes the fact that the prisoner was a solicitor and salesman. Upon such showing and under such circumstances, the prisoner should be acquitted of the charge as laid in the indictment.’ This charge implied the expression of a knowledge of the facts and required a comment upon the evidence. It appertained exclusively to the jury to ascertain and determine whether or not the accused * * * was in the employ,” etc.

Prom the foregoing it seems that the defendant was simply indicted for embezzlement as a clerk, and while not passing on the question of the sufficiency of the indictment, yet it is manifestly inferable from all that was said that it was not deemed objectionable; and we glean from what was said that the indictment in that was similar to the one in the instant case.

This particular kind of embezzlement is defined thus:

“Any servant, clerk, broker, agent, consignee, trustee, attorney, mandatary, depositary, * * * who shall wrongfully use, dispose of, conceal, or otherwise embezzle any money, bill, note, check, order, * * * or any other property which he shall have received for another, or for his employer, .principal or bailor, or by virtue of his office, trust or employment, or which shall have been entrusted to his care, * * * upon conviction thereof * * * shall suffer imprisonment at hard labor,” etc. Revised Statutes, Sec. 905.

The indictment in the instant case used the words, namely: “feloniously and wrongfully did embezzle, use and dispose of,” and same are almost identical with the words and terms of the statute.

In State vs. Wolf, 34 An. 1153, it was held that “embezzlement is not a common law offence.”

It is made so by our statute; and in such case an indictment is sufficient in terms, if it follows the statute substantially.

In State vs. Eames, 39 An. 986, in which the charge was that of embezzlement under Revised Statutes, Sec. 903, against the treasurer of public school funds, and the language of the indictment was that the defendant did “feloniously, wrongfully use and convert to his own use, and conceal and embezzle eight hundred dollars,” etc.; •and the question raised being upon a motion to quash the indictment this court said:

“ But it is no essential that the offence should be described in the language of the statute. It is sufficient if all the elements of this offence are set forth in words of similar import to those employed in the statute; that is, in such words as clearly convey the real meaning of the language used in the statute. State vs. Williams, 37 An. 776; State vs. Humphreys, 35 An. 966; State vs. Hood, 6 An. 179.”

By a fair test of the indictment, under the words of the statute and in the light of the foregoing decisions, it would seem that it is good and sufficient; and that without impeaching or gainsaying anything that was said in the O’Kean case. But the most pertinent and applicable case is that of State vs. Fricker, 45 An. 647, the indictment wherein was found under the identical section of the Revised Statutes we are now considering — Sec. 905 — and was drawn in quite similar language to that employed in the indictment in the instant case; and, in the course of our opinion, we said that “ the instant information is complete in its compliance with every statutory requirement.” For illustration see State vs. Roubles, 43 An. 200.

Counsel for the State say in their brief: •

“The lower judge has confounded the evidence of embezzlement with the crime of embezzlement itself, and virtually holds that a demand and failure to pay over is the only evidence by which the crime of embezzlement under Sec. 905 of the Revised Statutes can be established. This position is refuted by the very terms of the statute itself, which declares that a wrongful use, or concealment or disposal of, or any embezzlement otherwise shall constitute the offence.”

And with all respect for the good judgment of our learned brother ■of the lower court we are of the opinion that he has confounded the evidence of embezzlement with the crime of embezzlement itself, and in quashing the indictment has relied upon the jurisprudence ap - plicable to the sufficiency of evidence to convict.

We think it clear that the ruling and decree of the trial judge were erroneous and should be set aside.

It is, therefore, ordered and decreed that the ruling and decree of the trial judge quashing and setting aside the indictment be annulled and revoked, and it is further ordered and decreed that the indictment be and the same is reinstated and the cause remanded to the court below, there to be further proceeded with according to law and the views herein expressed.


author: McEnery, J.

text:
    No. 11,595.
    State of Louisiana vs. Adam Green. *
    The overt act as hostile demonstration of the deceased against the accused must be proved before the introduction of evidence as to the dangerous character of the deceased.
    In passing on such a question the trial judge is vested with the discretion to decide whether a proper foundation has been laid for the introduction of evidence as to character.
    APPEAL from the Fourteenth Judicial District Court, Parish of Pointe Coupee. Talbot, J.

      M. J. Cunningham, Attorney General, and Alexander Hebert, District Attorney, for Plaintiff and Appellee.
    0. O. & A. Provosty for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The accused was indicted for murder, convicted of manslaughter and sentenced to hard labor for a term of seven years. He appealed.

The defendant in his own behalf was interrogated as to the dangerous character of the deceased. The question was objected to by the prosecution on the ground that no foundation had been laid for the introduction of such evidence. The objection was sustained, a bill reserved, and upon this the defendant relies.

In the bill of exception a statement is made as to what fact on this point the State witnesses swore to.

The judge in a statement to the bill says: “The counsel for the accused has undertaken to relate the testimony as given in the trial, but as it differs in several material particulars from that actually delivered it is necessary to briefly state the facts on which the ruling was based.” We must accept the statement of facts as made by the

trial judge. This rule has been so often affirmed that no departure from it would be warranted. So far as the evidence of a hostile demonstration of the deceased against the accused is concerned it remains before the jury, arid is a matter for their consideration in the plea of self-defence urged by the defendant. .

The judge has his duties to perform in the course of the trial in determining questions of law, and his conscience and his judgment must be respected.

Whether or not a proper foundation has been laid for the introduction of evidence as to the character of the deceased is a question of law. The facts as relating generally to the defence must necessarily go to the jury for their final consideration, and among them the testimony as to the overt act or hostile demonstration. But the fact as to character, and the fact of communicated threats, must have a proper foundation laid before evidence as to them can be received. Whether these facts should go to the jury are based upon other facts which are addressed to the judgment and the conscience of the judge. Hence we have said, in two cases, State vs. Ford, 37 An. 443, and State vs. Harris, 45 An. 843, that there is a wide difference between evidence of an overt act and proof of the same, and that passing upon such a question the trial judge is from necessity clothed with the authority to decide whether a proper foundation has been laid for the proffered evidence of an overt act, and that authority includes the discretion to ignore and not to consider testimony which his reason refuses to believe.

The material statement of the trial judge is as follows: “Some words passed between the parties, bat of an immaterial and not threatening character. The deceased, who was three or four feet from the accused, took hold of the latter by the coat near the collar with one hand, when the accused shoved or pressed the deceased toward the back door of the room, through which both parties disappeared scuffling, the deceased exclaiming, that ‘ damned son of a bitch has stabbed me.’ The witnesses state that the body was found within three or four feet of this door with a wound near the region of the heart. None of the State witnesses stated that blows had been exchanged, or that the act of the deceased in taking hold of the accused was in a hostile manner, or indicated any anger, and was not accompanied by any threats.

‘ ‘ The statement of the accused (as related by his counsel), which is substantially correct, was so contradictory as compared with that of the • State witnesses that I considered it fabricated, and standing alone did not suffice to lay a proper foundation for the admission of the testimony. In fact I was strongly impressed with the opinion from the nature of the testimony that the conduct of the deceased in taking hold of the accused was rather pacific and friendly.”

His statement brings this case within the rulings of the cases referred to.

■ The motion for a ■ new trial only urged the defence contained in the bill.

Judgment affirmed.

Rehearing refused.