author: Nicholls, O. J.

text:
    No. 13,755.
    L. W. Stubbs vs. J. M. Lee, Jr., et als. — Third Oppositions of Mrs. S. J. Seale, Kingsland & Douglass Manufacturing Co., and Ouachita National Bank.
    Syllabus.
    1. “A” and “B” owned each an undivided half of certain property. They executed their solidary promissory note, secured by special mortgage upon the entire property. The debt for which the note was given was in reality “A’s” debt only to the extent of one-half. He paid that half, leaving the balance due the debt in reality of “B.” 1-Ie not paying, the creditor obtained a judgment ■ in solido against both parties and caused the entire property to be seized and sold, “A” becoming the adjudicatee and paying the entire bid to the sheriff. One-half of the bid more than sufficed to pay the judgment creditor in full. Payment of this judgment should be made from the half of the price representing “u’s” half of the property, and the half representing "A’s” half should be returned to him by the sheriff, “ii’s” creditors having no claim upon that portion of the price, but being limited to the balance remaining of “B’s” portion after payment of the seizing creditor.
    2. The effect of a judgment obtained by a creditor of inferior rank setting aside as ‘‘simulated’’ a prior special mortgage appearing on the records, is not to advanee the party obtaining this judgment to the place which the special mortgage would have occupied, had it been valid. The effect is to throw forward all parties, but in their regular order of registry.
    3. The effect of a judgment obtained by a creditor of inferior rank setting aside a first judicial mortgage on the property of a common debtor, so far as that creditor’s ' rights are concerned, not as "simulated ’’ but as “fraudulent," does not enure to the benefit of all the creditors of the debtor. As between the party holding the judicial mortgage and creditors not attacking, rights are to be determined by the order of registry. The plaintiff in the revocatory action takes from the money falling to the first judicial mortgage creditor the amount necessary to pay his claim, and the judicial mortgage creditor to that extent is thrown behind (as an ordinary creditor) the subsequent mortgages which it would otherwise prime, but for any surplus above that amount it retains its priority of rank over subsequent creditors .not attacking it.
    APPEAL from the Sixth Judicial District, Parish of Ouachita— Hall, J.

      Hudson, Potts & Bernstein, for Mrs. S. J. Seal, Third Opponent and Appellant.

      Andrew Augustus Ounby, for Kingsland & Douglas Manufacturing Go., Third Opponent, Appellant.

      Stubbs é Bussell, for Ouachita National Bank, Third Opponent, Appellee.
   Statement op the Gase.

The opinion of the court was delivered by

Nicholls, O. J.

On January 6th, 1891, Mrs. E. J. Lassiter sold to Mrs. Sarah J. Seale and John M. Lee, Jr., certain property described as being partly in the parish of Ouachita and partly in the parish of Union, for the price of five thousand two hundred dollars, of which two thousand dollars were paid in cash and the balance represented by two joint and several notes of the purchasers of sixteen hundred dollars each, with interest thereon at eight per cent, from the date of sale, payable, respectively, on the 1st of January, 1892, and 1893. Payment of these notes was secured by special mortgage and vendor’s privilege on the property purchased, as was also payment of all the costs to be incurred in enforcing such payment, including attorney’s fees, fixed at ten per cent, on the amount sued for. This act was duly recorded in the parishes of Ouachita and Union.

On the 24th of April, 1893, Mrs. Sarah J. Seale sold the half of the property which she had so acquired to her joint owner, John M. Lee, Jr., the property being described as being “principally” in the parish of Ouachita, and in addition to this property she conveyed an interest which she had acquired with John M. Lee, Jr., in the succession of Joseph Baker and wife — and an interest in an unexpired lease of the Arons place.

The price and consideration was:

First: That Lee assumed the discharge and payment of the note given by the vendor and himself, payable January, 1893, and to hold Mrs. Seale harmless therefrom; it being declared that it was understood that Mrs. Seale had fully discharged the note for the same amount due Mrs. Lassiter, January, 1892, and that this note was surrendered to Lee for cancellation.

Second: The sum of seven thousand dollars, with interest to be paid thereon from the 1st of January, 1893; this amount was represented by Lee’s note payable 1st of March, 1894.

Payment of this note and all costs incurred in the enforcement thereof, including attorney’s fees, fixed at 5 per cent., was secured by special mortgage and vendor’s privilege on all the property purchased. On the same day (24th of April, 1893) Mrs. Seale sold to John M. Lee, Jr., two other prpperti.es, the “Pace” place, and the “Rock Row” place, for $7,000 on credit, for which she took Lee’s note, secured by special mortgage and vendor’s privilege. Lee having paid nothing, Mrs. Seale, on the 3rd of August, 1895, obtained an order of seizure and sale, and on the 25th of January, 1896, the property sold by Mrs. Seale to Lee was all sold for $5,778.67, leaving over $10,000 still due upon her mortgage notes.

At that sale the half interest in the Port Union plantation sold by Mrs.' Seale to Lee, brought only $1,334. On December 7th, 1896, Mrs. Seale sued Lee, and on the 27th of February, 1897, obtained judgment against him for $14,000, with interest and attorney’s fees, less $5778.67, the amount of the adjudication to her on the 25th of January, 1896.

The first of the two notes, the one due January 1st, 1892, was pa’d by Mrs. Seale. The other note, due January, 1893, with some credits, was transferred by Mrs. Lassiter to Linton W. Stubbs. On June 23rd, 1899, Stubbs sued Lee and Mrs. Seale to recover upon the balance of-this last note. He obtained judgment, and under a writ of fi. fa. issued upon this judgment the entire 'Port Union plantation, which had been bought by Lee and Mrs. Seale from Mrs. Lassiter, was adjudicated to Mrs. Seale for five thousand seven hundred dollars, Mrs. Seale at that time owned one undivided half of the property and Lee the other half. Out of this amount the sheriff paid the plaintiff, Stubbs, the amount of his debt, with all interest, costs and fees, aggregating $2333.59, which satisfied the writ in full and left in the sheriff’s hands the sum of $3228.86. Previous to this sale, third oppositions were filed by Mrs. Seale, the Ouachita National Bank and the Kingsland Manufacturing Company. Mrs. Seale claims this amount as being the owner of one undivided half interest in the property and as having the oldest mortgage upon the property.

She claims that having paid the note of the 1st of January, 1892, given by herself and Lee jointly and severally, as part of the purchase price of the property from Mrs. Lassiter, secured by mortgage on the entire property, she became, as against Lee’s interest, subrogated to the rights of the creditor, Mrs. Lassiter.

That this amount of $800, with interest and costs, one-half of the note, entitled her to a special mortgage and vendor’s privilege on the property, ranking and taking effect from the 6th of January, 1891, and that for the balance she was entitled to a preference and precedence over the Kingsland & Douglas Manufacturing Company by virtue of the prior recording of her judgments against Lee and by virtue of having defeated and annulled a fraudulent sale of Lee’s interest in the land to his brother-in-law, Webb, on August 6th, 1895. She asserts a precedence and preference over the Ouachita! National Bank, because in her two suits, Nos. 4558 and 4559, the court decreed the judgment In favor of the bank against Lee to be fraudulent, and annulled the same in so far as it affected Mrs. Seale’s claims; that the effect of the judgment in these two eases was to postpone the claims of the bank under its judgment in suit No. 4397 to her claims. Therefore she should be paid first out of these proceeds. The Ouachita National Bank claims those proceeds under a judgment rendered upon a confession of judgment by Lee in suit No. 4397 on the 24th of December, 1896, and" by virtue of its having been recorded prior to the judgments of either Mrs. Seale or the Kingsland & Douglas Manufacturing Company. To this opposition, Mrs .Seale answered that the note and title of the bank thereto, and the judgment based thereon, had been, by judgment of the District Court, declared fraudulent and of no effect, so far as Mrs. Seale, the plaintiff in the revocatory actions, was concerned.

The Kingsland & Douglas Manufacturing Company, in their third opposition, claim a priority and preference over Mrs. Seale and the bank, on the ground that their judicial mortgages were first recorded, and hence primed, the judicial mortgages of Mrs. Seale and the bank. They deny that by the payment of Mrs. Seale of the $1600 note, given by herself and Lee to Mrs. Lassiter, she was subrogated to the rights of Mrs. Lassiter. They plead the prescription of five years to this claim, and deny that by the payment of taxes she was subrogated to the lien and privilege securing the same.

On the 6th of August, 1895, an act was passed by which Lee pur-ported to sell his undivided half of the “ Port Union ” plantation (bought from Mrs. Lassiter) to his brother-in-law, Webb, for'$3000, represented by Webb’s note, secured by special mortgage and vendor’s privilege. This note was transferred by Lee to the Ouachita National Bank as collateral security for debts due by him to the bank. On the 24th of December, 1896, the Ouachita National Bank obtained a judgment by confession against Lee for $3000, and this judgment was recorded in Ouachita parish on the — day of-; — , and in Union parish on the ■ — • day of-.

Suits were brought by Mrs. Seale to annul the sale from Lee to Webb, and the note and mortgage given thereunder, and to declare fraudulent both the bank’s title to the note and the judgment of the bank against Lee, and on the 1st of May, 1900, judgment was rendered decreeing the sale from Lee to Webb on the 15th day of August, 1895, to be a simulation and annulling as fraudulent the judgment which had been confessed by Lee in favor of the Ouachita National Bank, in so far as these claims affected those of Mrs. Seale. The attack, however, upon the title of the bank as the pledgee of the note of $3000 was not successful.

The Kingsland & Douglas Manufacturing Company had obtained 'two judgments against Lee, the first being on October 8th, 1895, against Lee and Parks for $231.36, with eight per cent, interest, and 10 per cent, attorney’s fees. (This judgment was recorded in Ouachita parish on October 8th, 1895.)

The second was against Lee and Parks for $1958.65, with interest and attorney’s fees. This judgment was recorded in Ouachita parish on February 1st, 1896, and in Union parish on the — day-.

The District Oourt rendered judgment decreeing that after paying the debt of the plaintiff, Stubbs, Mrs. Seale be paid one-half of the proceeds still remaining in the hands of the sheriff by virtue of her title to one undivided half of the property, this amount going to Mrs. Seale being $1614.43. That, in other respects, her demands be rejected, and that the other half of the balance in the hands of the sheriff ($1614.4:3), after payment of the costs of the proceedings, bp paid to the Ouachita National Bank, and the Kingsland & Douglas Manufacturing Company, share and share alike, as a credit on their respective judgments and mortgages against J. M. Lee, Jr.

From this judgment Mrs. Seale and the Kingsland & Douglas Manufacturing Company appealed.

The Ouachita National Bank filed no pleadings or brief in the Supreme Court.

Opinion.

When Lee and Mrs. Seale purchased jointly the Port Union plantation from Mrs. Lassiter, they became each the owner of one undivided half of the property, and, as between themselves, each owed one-half of the price, although quoad the seller, Mrs. Lassiter, each owed the entire debt, secured by special mortgage and vendor’s privilege on the entire property, by reason of the solidary form of the note and the obligations which the purchasers assumed towards her. In the Succession of Daigle, 15 Ann. 584, this court held that “where two parties purchased together certain landed property, each one undivided half, and furnished for the price their joint and several notes secured by mortgage on the land purchased* these parties must be considered as purchasers and principal obligors, each for one-half only of the property purchased, and as sureties for each other (personally and through their property), mutually, as to the other half.”

Under ordinary circumstances and in the absence of a contrary understanding and evidence, partial payments made by either of the parties would be presumed to have been joint payments for the two-1 that is to say, the party making the payment would be presumed as paying his own debt to the extent of one-half of the partial payment and paying the debt of his co-purekaser to the extent of one-half of the payment. The effect of partial payments so made, if made exclusively with the money of the party paying, would be, so far as the co-purchaser was concerned, to make him a debtor to the party making the payment to the extent of the payment made on his account, this debt being secured by subrogation pro tanto to the mortgage held by the seller. The parties, as between themselves, might agree that all partial payments by either, from their own means, should be held to be to the full extent of the payment by that person of his own individual portion of the price.

The rights of the seller, however, would remain unaffected by special agreement between the parties.

He would not be called on to know the circumstances of the different payments. He would stand on the original contract rights, no matter how much the purchasers might alter their relations inter se. (Civil Code, Articles 1415-1416.)

In this particular case there is no evidence as to whose means contributed to the cash payment made to Mrs. Lassiter, at the time of the sale by her. We must assume that each one of the purchasers paid one-half.

We have evidence, however, in the act of sale of Mrs. Seale to her .joint owner, Lee, of her undivided half of the Port Union plantation, that the first of the two credit notes given by the purchasers, the note. which fell due in January, 1892, was paid in its entirety by Mrs. Seale.

Lee expressly admits this, and we think this admission made by Lee in the very act by which he acquired this property, was good, not .only as against Lee, but as against Lee’s subsequent creditors, seeking to apply the proceeds of this property to the payment of their debts, to the prejudice of Lee’s vendor.

By making this payment Mrs. Seale had paid out an amount equal to her individual half of the purchase price, while Lee had only paid one-half of the cash payment. '

The outstanding note, therefore, due in January, should, for the purpose of equalization of the parties, have been paid in its entirety by Lee. It was not only equitable and right that he should do so, but he expressly agreed in the act last referred to, that he would pay that note in full. We think this admission made by Lee, coupled with his undertaking to pay the whole of the last note in full, was intended by the parties to be a division, inter se, of the debt, and to be an imputation of the payments which had been made by Mrs. Seale on her individual portion of the price, a consent that her property (so far as these parties could control the situation) should be free from the mortgage securing the unpaid portion of the price, and that the remaining note should be (as between the parties) due entirely by Lee and be secured as to its payment by the mortgage on his half of the property.

Lee’s legal obligation to pay his equal share of the price1 and his express promise to pay the whole of this note, were not carried out, and Stubbs, who had become the owner of the last note, brought suit thereon for the full amount against Lee and Mrs. Seale, and obtained a judgment against them in solido for the amount of the note, interest, costs and attorney’s fees, with recognition that this amount was secured as to its payment by special mortgage and vendor’s privilege on the whole property.

This judgment he was unquestionably entitled to, and in execution of it he very properly seized the entire property mortgaged, and sold it under a writ of /?. fa. which he had caused to be issued. ' This he had a legal right to do, no matter what might be the situation of Lee and Mrs. Seale as between themselves in respect to 'the debt and the mortgage. It was none the less true that when this judgment was executed it was in enforcement of a debt due entirely by Lee (as between himself and Mrs. Seale), and that when her share of the property was seized and sold it was sold in payment of a debt which Lee owed in its entirety, and which he had expressly bound himself to Mrs. Seale to pay. Mrs. Seale, as a matter of course, was powerless to prevent the sale of •her property as against Stubbs. She submitted to the sale, and the whole property was adjudicated to her, and she paid the entire bid. It is a mistake to say, however, that she became the owner of the entire property through this sale. She whs already the owner of one-half and she acquired no new title nor new ownership to that half, though she did acquire a new ownership in Lee’s half. C. O. 2443. The property seized aiid sold in this case and under its special facts was quoad, everybody but the seizing, creditor Lee’s undivided half of the plantation. •

The money which she paid over to the sheriff went to the extinguishment and payment of a debt due entirely by Lee and was received to the extent of Stubbs’ judgment by a creditor of Lee (for the full amount of the judgment), who held a first mortgage and special privilege on his property. Mrs. Seale had the right, under the circumstances of the case, to insist that' an amount of the money received by the sheriff from her up to the amount of Stubbs’ judgment, should be imputed to the payment of Lee’s debt and taken from the portion of the proceeds of sale representing Lee’s half of the property. If the seizing creditor’s rights would have been injuriously affected by this, Mrs. Seale, as a matter ofcourse, would not be justified in urging this method of payment or application of the price. The subsequent creditor of Lee could not insist that any portion of Stubb’s judgment should (so far as they were concerned) be paid by Mrs. Seale’s money except to the extent that she received an equivalent for the same from Lee’s property. To the extent of that judgment she paid Stubbs, as purchaser of Lee’s property, not as debtor of Stubbs.

As the entire property was adjudicated to Mrs. Seale for fifty-seven hundred dollars, and as each half must be taken- to be equally valuable, Lee’s half of the property must be held to have been worth half of that amount, or twenty-eight hundred and fifty dollars. Stubbs’ judgment, with interest and costs, amounted to twenty-three hundred and twenty-three dollars and fifty-nine cents.

Taking this amount out of Lee’s share of the price ($2850), and 'giving them to Stubbs, Lee’s first mortgage creditor, there remained, in the hands of the sheriff, out of the proceeds of the sheriff’s sale, the sum of five hundred and sixteen dollars and forty-one cents ($516.41) to be distributed among Lee’s creditors according to their respective rights.

The Port Union plantation is situated partly in the parish of Ouachita and partly in the parish of Union. The relative values of these different parts does not very satisfactorily appear from the record. No separate appraisement of the two portions was made. Certificates of mortgages were produced at the judicial sale from the office of the recorder of mortgages of these two parishes. It appears from each that the special mortgage and vendor’s privilege in favor of Mrs. Lassiter, by reason of the sale from her to Lee and Mrs. Seale, was first in order of registry. The priority of that mortgage over all others is conceded. So far as the parties before the court are concerned, the mortgages were recorded in the following order:

The second recorded 'mortgage in "Ouachita Parish” was a special mortgage for seven thousand dollars, and interest, given by Lee to Mrs. Seale. (There is nothing to indicate that this mortgage covers the property involved in this suit.)

The third mortgage is a judicial mortgage in favor of the Kingsland S'i Douglas Manufactwing Gompcmy against Lee and Paries for lico hundred and thirty-one dollars, with interest, from a judgment recorded October 8th, 1895.

The fourth mortgage is declared to be a special mortgage executed by Lee in favor of Webb for $3000, with interest, due January 1st, 1896; recorded January 13th, 1896.

The fifth mortgage is a judicial mortgage in favor of the Kingsland & Douglas Manufacturing Company against J. M. Lee, Jr., and J. W. Parks for $1958.65, with eight per cent, interest from different dates.

The sixth mortgage is a judicial mortgage in favor of Mrs. Seale and against J. M. Lee and Parks for $1500 and interest; for $704, with interest; for $1999.44, with interest; for $835.28, with interest; for $926.50, with interest, subject to various credits. Eecorded February 27th, 1897.

The seventh mortgage is a judicial mortgage in favor of Mrs. Seale against Lee for $14,000, with interest, subject to credits. Eecorded February 17th, 1896.

In Union Parish the mortgages from their order of record are:

First — The mortgage held by Stubbs, the seizing creditor.

Second — A judicial mortgage against Lee in favor of the Ouachita National Bank, rendered in suit No. 4397 on the docket of the District Oourt for the parish of Ouachita, for the sum of $3000, with eight per cent, interest from different dates.

This judicial mortgage is evidently the mortgage upon the judgment annulled at the suit of Mrs. Seale, so far as it affected her rights.

Third — A judicial mortgage in favor of Mrs. Seale against J. M. Lee et al. for $1500, for $704, for $1999.44, for $835.28, and for $926.50, with interest from different dates and subject to certain credits.

Fourth — A judicial mortgage in favor of the Kingsland & Dougins Manufacturing Company against Lee and Parks for $195.65, with interest from different dates, and attorney’s fees.

The note sue'd upon herein by Stubbs shows a credit on January 4ih, 1894, of $256; on January 22d, 1894, of $128; on January 1st, 1895, of $128; on February 13th, 1896, of $128. The evidence does not disclose who made these payments. If Lee made them, the situation would be different from what it would be if Mrs. Seale made them, for if the latter made them she would to that extent have paid a- debt due on the note for which she and Lee were bound in solido, quoad to the holder,. but, in fact, for the sole benefit of Lee, her solidary debtor.

It is claimed that the judgments which figure on the certificates as judgments against Lee and Parks were judgments against these parties jointly and not severally. It is claimed by Mrs. Seale that the annulling of the sale from Lee to Webb and of the judgment by confession rendered in favor of the Ouachita National Bank against Lee, enured exclusively to her benefit, and that she became subrogated to the rights of the bank or substituted therefor as to rank in place of the bank; that the sale and judgment were annulled only in so far as her rights were concerned, but remained good quoad all other parties.

These claims are contested by the Kingsland & Douglas Manufacturing Company. It contends that the sale was set aside as-a simulation and that the judgment enured to the benefit of all the creditors of Lee: That also the judgment of Mrs. Seale declaring the judgment by confession held by the Ouachita National Bank to be fraudulent enured to the benefit of all the creditors. It denies that the effect of the annulment of the sale and of the confession of judgment was to subrogate Mrs. Seale to the rights which the bank would have had, had the judgment been valid and the sale real, or to substitute her as to rank m the place of the Ouachita National Bank.

It maintains that after the sale and judgment were set aside, the Ouachita National Bank practically withdrew from the contest, and it insists that the court was without warrant in giving a judgment under the circumstances in favor of the bank for any amount.-

Restating the situation we find, first, that the record in Ouachita jjarish shows at present that the two judicial mortgages in favor of the Kingsland & Douglas Manufacturing Company prime in date of registry the mortgages held by Mrs. Seale, one of which is stated to be a judicial mortgage against Lee and Parks, and the other a judicial mortgage against Lee, but that between the two judicial mortgages of the Kingsland Company stands recorded the special mortgage on this property which had been granted by Webb to Lee while the former held title thereto under the sale to him from Lee, which title has been adjudged a simulation at the instance of Mrs. Seale, and we find, secondly, that the record in Union parish shows at present the first mortgage to be the judicial mortgage resulting from the registry of the judgment of the Ouachita National Bank against Lee for three thousand dollars, with interest, which was decreed fraudulent so far as it affected the rights of Mrs. Seale, while next to it is declared to be a judicial mortgage in favor of Mrs. Seale against J. M. Lee et al., and following this mortgage is a judicial mortgage in favor of the Kings-land & Douglas Manufacturing Company against Lee and Parks. Prima facie, the mortgage rights of the Kingsland Company give that company preference in Ouachita parish over those of Mrs. Seale, and prima facie the- mortgage rights of Mrs. Seale give her preference in Union parish over the Kingsland Company. It may be well to state here that there is some doubt as to whether the certificates in both parishes be -not in error when they refer to the judicial mortgage resulting from the registry of the judgment in the matter of Mrs. Seale, in Seale vs. Lee et al., as being a judicial mortgage against Lee. We find in the record a judgment against Parks in that case, but none against Lee.

It is contended on behalf of Mrs. Seale that, notwithstanding that her judicial mortgages in Ouachita parish are recorded after those of the Kingsland Company, her rights none the less prime those of that company, for the reason that the special mortgage given by Webb to Lee stands recorded ahead of their judicial mortgages, and that special mortgage having been set aside at her instance by judgment as fraudulent and simulated, she was subrogated to the rights which the holder of that mortgage would have been entitled to had that mortgage been valid or if not subrogated she should be “substituted” on the record to the place occupied by that mortgage with corresponding rights.

Subrogation to another person’s rights is measured by the rights of the latter. If the second person has no rights, then the subrogee can take none. In this case, at the express demand of Mrs. Seale herself, the special mortgage has been declared non-existing — not real. We must, therefore, strike it from the record, so far as “subrogation” is concerned, but Mrs. Seale’s counsel insists that Mrs. Seale’s mortgage must pass into and occupy the space left vacant by the erasure of this mortgage, by reason of the fact that that erasure was accomplished through her instrumentality and at her expense.

The same position was taken by one of the parties in the case of Lambert vs. Saloy (37 Ann. 3), but it was not sustained. The syllabus to that case declares that “in a pursuit by numerous creditors of their common debtor’s property, the creditor who has recourse to a revocatory action, in order to annul a fraudulent transfer of his property by his debtor, will obtain no preference over the other creditors by reason of his revocatory action, if it appears from the evidence that the attacked transaction was not only “fraudulent” but also “simulated” and “unreal.” In such a case the creditors who ignored the pretended transfer and who proceeded by attachment will have priority. “The only difference between that ease and the present is that the Kingsland Company's priority of rank over Mrs. Seale did not .result from an attachment but from having fixed prior mortgage rights on the property. The company has done nothing to lose its actual rank, and we think it is entitled to preference of payment upon their judgments over Mrs. Seale to so much of that portion of the sum of five hundred and sixteen dollars (less costs) in the hands of the sheriff which represents the balance unpaid of the undivided half of the Port Union Plantation which belonged to John M. Lee, Jr., as represents the pro rata value of that property situate in Ouachita Parish relative to that in Union Parish.

We next come to the Parish of Union. If the certificate of the clerk and ex-officio recorder of that parish be correct when it declares the judicial mortgage following next to that of the Ouachita National Bank is a judicial mortgage, in favor of Mrs. Seale against Lee, then Mrs. Seale will have priority over that bank and other mortgage creditors of Lee upon that portion of the fund of five hundred and sixteen dollars (less costs) in the hands of the sheriff, which represents the pro rata value of the part of the Port Union Plantation which is situated in that parish relative to the value of that part situated in the Parish of Ouachita. If, however, there is a mistake in that certificate, and Mrs. Seale has not such a mortgage, the question arises what the situation will be as to priority over that portion of the fund between the Ouachita National Bank, Mrs. Seale, and the Kingsland & Douglas Manufacturing Company. We will then be called on to make a proper application to this case of the principle of si vinco vincentem te a fortiori vincam te.”

The Kingsland & Douglas Company can argue that if they are prior in rank to Mrs. Seale, and Mrs. Seale is ahead of the Ouachita Bank, a fortiori should they be ahead of the bank that the bank with its judgment and judicial mortgage must pass to the rear of Mrs. Seale and the Kingsland & Douglas Manufacturing Company; but Mrs. Seale can reply that she herself is ahead of the Ouachita Bank only by reason of the judgment which she had obtained in the revocatory action which set aside the bank’s judgment only in so far as she was concerned. That so far as the Kingsland Company was concerned the bank’s mortgage retained the full force and effect as first in rank and its rights, therefore, had priority over those of the Kingsland & Douglas Company. That if the bank ranked the Kingsland & Douglas Company the latter had no interest whether the money which, but for the judgment in the revocatory action, would be given to ' the bank should, by reason of the special relations between it and Mrs. Seale, be turned over to Mrs. Seale. That all that the Kingsland & Douglas Company could insist upon would be that no greater amount of prior rights should be placed ahead of them than the amount of the judicial mortgage of the Ouachita Bank; that the contest up to that amount would be between Mrs. Seale and the Ouachita National Bank, which contest the Kingsland & Douglas Company have no concern with; that if this were not so the Kingsland & Douglas Company would be gaining an advantage at Mrs. Seale’s expense, for which it could assign no legal reason.

That she does not claim the right to displace the fixed rights of the Ouachita Bank, the Kingsland & Douglas Company or other' parties inter se, but only to take a sufficient sum out of the .amount which would go to the Ouachita National Bank to make effective the judgment in the revocatory action to the extent necessary and to make good her own rights. That if the whole of the amount of the Ouachita Bank judgment would not be needed for that purpose, the balance should, as between the bank and the Kingsland & Douglas Company, be paid to the bank; that to the extent of the amount diverted from the bank and paid to Mrs. Seale, the bank would become an ordinary creditor quoad parties holding mortgage rights ahead of Mrs. Seale. In Turner vs. Parker, 10 Rob. 162, this court quoted the following extract from 2nd Vol. Trolong on Privileges and Mortgages, No. 600:

“Pierre emprunte de l’argent á Tertms¡ sous l’hypothéque du fonds Cornélien. La femme de Pierre eomparait au contrat, et renonce á son hypothéqug sur ce fonds. Pierre étant tombé en faillite le fonds Cornélien est vendu; alors se presentent a l’ordre, Io la femme de Pierre pour 4000 francs; 2° Secundus pour 5000 francs; 3° Tertms pour 4000 francs.
“D’aprés l’argument qu’on peut tirer de la loi Claudius Eelix 16 Dig. qui potior, voici ce qui arrivera.
“On. prélevera (deduct or first take out, see Articles 1879, ei seq.t O. O. French and English text, Code of 1825) les fonds dus a la femme de Pierre, mais eette somme sera donnée a Tertius en vertu de la renunciation que l’épouse a faite en sa faveur. Secundus touchera ensuite en deuxieme ordre les 5,000 francs qui lui sont dus. S’il reste des fonds, la femme les prendra en place de Tertius. Ainsi l’épouse sera eréaneiére chiragraphaire á l’égard de Tertius. Mais son rang n’en subsistera pas moins pour laisser Secundus au second rang car ce qui est intervenu entre Tertius et l’épouse de Pierre est pour lui res inter alios acta. 10 Touillier, No. 197. Dig. B 20, T. 4 L. 16, Qui potiores."

This doctrine was applied in Poché vs. LeBlanc, 12 Ann. 783, where the right of “subrogation” of the later mortgage creditor to the rights of the renouncing wife was denied, but his right was sustained as to taking a certain amount by reason of the renunciation. The only difference between the principle as applied thus and the application sought to be made here consists in the fact that in those cases there was a conventional renunciation of rank in favor of another, while here the postponement of rank is due to the law and to a judgment of court. ■

We think the claims of Mrs. Seale are, to this extent, supported by equity and if they are not directly, they are consequentially warranted by the law.

The Kingsland & Douglas Company insists that the judgment annulling the judgment of the Ouachita Bank enures to the benefit .of all the creditors of Lee, but a “fraudulent” judgment is not an absolute but a relative nullity. Article'1977 of the Code declares expressly that in a revocatory action the contract shall be avoided as “to its effect” upon the “complaining” creditors. Article 1881 of the Code declares that “engagements made through fraud” are not “absolutely” “null, but are voidable by the parties who have contracted under the influence of such fraud.” .

A judgment fraudulent as to one person is not necessarily fraudulent as to another. (C. O. 1993.) We were doubtful for some time as to the scope as between Mrs. Seale and the bank of the judgment in the revocatory action upon the rights of the parties.

The judgment followed the terms of Article 1977 and declared that the judgment in favor of the Ouachita Bank should be set aside as to its effects on Mrs. Seale without defining what the effects referred to were. There is a class of cases where the judgment attacked is set aside only to the extent of making the owner of the judgment, if the fraud consisted merely in the endeavor to obtain a preference over creditors under circumstances in which, by law, the endeavor to obtain such preference is declared to be a constructive fraud, only lose the advantage endeavored to be secured by such conduct.”

Upon the assumption that the debt recognized by the judgment of the bank was, in fact, “a just debt,” and that the fraud consisted in the attempt by quickness of judicial action by consent of the creditor and debtor to secure a preference through a judgment, the result of the judgment might be simply to place the two judgments on an equality of right.

The judgment in the revocatory action in this particular ease did not merely “restrain” 'or limit the effect of the banks’ judgment, but “set aside” the judgment. We, therefore, have concluded that we should, quoad Mrs. Seale, consider it as entirely set aside. There have been cases where maintaining an opposition made by one creditor to the claim of another on the ground of fraud has been declared to enure to the benefit of all the creditors, but we do not think this rule applies to a judgment obtained by a single creditor acting independently of others in an ordinary revocatory action.

For the reasons herein assigned it is ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the sheriff of Ouachita Parish, after payment of the judgment of the seizing creditor, do pay over to Mrs. Seale all of the money paid to him by her under the adjudication made to her of the Port Union plantation in execution of the judgment of L. W. Stubbs, except the sum of five hundred and sixteen dollars.

It is further ordered, adjudged, and decreed that this cause be and the same is remanded to the District Court with directions to have ascertained the relative values of the portions of that plantation situated in the Parishes of Ouachita and Union, and having ascertained said relative value to distribute the said sum of five hundred and sixteen dollars between Mrs. Seale, the Xingsland & Douglas Manufacturing Company, Limited, and the Ouachita National Bank, according to the views and in conformity with the principles herein announced. Costs of these proceedings to be borne by the said fund of five hundred and sixteen dollars.


source: Caselaw Access Project

author: Monroe, J.

license: Public Domain

text:
    No. 13,672.
    Mrs. Henry Goodwin et als. vs. Mrs. Wm. Alexander.
    Syllabus.
    1. Where the Court of Appeal and this court have held that an appeal in a particular ease, returnable to one court or the other, is not returnable to the Court of Appeal, the arguments, presented by the counsel for the appellant, to maintain the appeal which had been returned to the court first mentioned, will not be held to preclude him from appealing to this court after the dismissal of the appeal first taken, the delay for such second appeal not having expired.
    2. “The prohibition of building on an estate or of building above a particular height” is a continuous, non-apparent, servitude, “which can be established only by title,” and is not included in any servitude of light and view which can be acquired by prescription.
    APPEAL from the Civil District Court, Parish of Orleans — Si. Paul, J.

      Theodore Goionio, for Plaintiffs, Appellants.

      McOloshey & Benedict, for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

Plaintiffs own a frame house, on Washington avenue, between St. Charles avenue and Oarondelet street, in New Orleans, which stands about six inches within the line which divides their lot from that of the defendant. The house has been standing in its present position for more than thirty years, and, during that time, has had a window, the sill of which is about six feet from the ground, with blinds opening out, in the side next to the defendant’s, so that the blinds, if opened more than six inches, pass over the defendant’s property. We infer that there was some trouble between the parties, or, perhaps, between the defendant and the plaintiffs’ tenant, prior to the occurrence out of which this suit arises. But, in January, 1899, the defendant cau=ed a frame, or screen, consisting of two pieces of scant-ling, about ten feet long and four feet apart, with boards nailed across their upper ends for a distance of about two and a half feet, to be fixed in the ground upon the line of her property, and immediately in front of the plaintiffs’ window, for the purpose, and with the effect, of preventing the opening of the blinds and of cutting off the view into her premises through said window. This screen, either when originally put up, or shortly after, leaned about three and a half inches in the direction of the plaintiff’s house, so that, whilst the base was six inches away, the upper end came within an inch of the window blinds. In fact, it is said that it, at first, touched the blinds, but we are not satisfied. that such was the case. Later on, in November, 1899, the screen was straightened up, and has since stood entirely on, or within, the defendant’s line. In the meanwhile, in March, 1899, plaintiffs brought this suit, in which they claim to have acquired a servitude of light and view, through the window in question, by reason of the prescription of thirty years. And they claim, as damages, ten dollars per day, from January 6, 1899, the date at which the screen was erected, and $1000 as “punitory and vindictive” damages. And they pray that said screen be removed and that defendant be restrained from interfering with their enjoyment of the said servitude claimed by them. On behalf of the defendant there is an exception of no cause of action and a general denial. The tenant now occupying the plaintiffs’ house testifies that since the screen was put up she has demanded, and has obtained, an abatement of $2 per month in the rent. Such is the ease as presented by the record.

On Motion to Dismiss the Appeal.

There was judgment in the District Court in favor of the defendant, and the plaintiffs appealed to the Court of Appeal. The appellee thereupon moved to dismiss, upon the ground that jurisdiction quoad said appeal was vested in this court; and the motion prevailed. Thereupon, an application was made to this court for a writ of review, which was denied. In the matter of taking the appeal as he did, and of the attempt to maintain it, the plaintiffs’ counsel seems to have taken the position that the damage as fixed by the allegations of the petition was exclusive of the $10 per day which are claimed, and, upon that basis, amounted to less than $2000; but it was held qtherwise. Counsel for defendant now insists that, whilst, upon the face of the pleadings, the amount claimed exceeded $2000, and hence the appellate jurisdiction was vested in this court, and the appeal to the Court of Appeal was properly dismissed, yet, that the plaintiffs, through their counsel, have since then admitted, virtually, that part of the claim for damages, as made in their petition, is fictitious; and that the amount seriously claimed is less than $2000; that the question whether the appeal is returnable to this court or to the Court of Appeal is to be determined upon the basis of the amount in dispute, when such appeal was taken, and that as said admission was made before the present appeal was taken, it follows that this court is without jurisdiction. There is much ingenuity in this argument, but our conclusion is, that, if, as the result, or in spite, of the admissions and contentions of the plaintiffs’ counsel, it has been adjudged by the Court of Appeal, and, practically, by this court, that this court, alone, is vested with jurisdiction of the appeal, those admissions and contentions can not now be made instrumentalities for defeating the appeal taken in accordance with the judgments so rendered. The motion to dismiss is, therefore, denied.

On the Merits.

“The ownership of the soil carries with it all that is directly above and under it.” C. O. 505. “The prohibition of building on an estate, or of building above a particular height,” is a continuous, non-apparent, servitude, which “can be established only by title. Immemorial possession itself is not sufficient to acquire it.” O. 0, 728, 766. No servitude of light and-view, such as plaintiffs claim to have acquired by prescription, can include this servitude of “prohibition” which can not be so acquired. Mourlon, Vol. 1, p. 861; Laurent, Vol. 8, p. 54; Oldstein vs. Building Association, 44 Ann. 492. In Jeannin vs. De-Blanc, 11 Ann. 466, Mr. Justice Spofford, as the organ of this court, said: “By the same right that defendant builds a wall with apertures, undoubtedly, the plaintiff may build one, facing it, without apertures, if it shall so please him.” So, in this case, by the same right that the plaintiffs’ authors built the house now owned by them with apertures overlooking the adjoining lot, undoubtedly, the owners of the adjoining lot might, or may, build a house, or any other structure, facing those apertures, if it shall so please them. And this last mentioned right is never barred by prescription.

Plaintiffs’ claim for damages has no other foundation than the fact that, for a while, the screen erected leaned three and a half inches over the line, and we are unable to discover that any damage was sustained on that account. The main complaint is that the screen, whether perpendicular, 'or leaning as it was, cuts off the light and view and prevents the opening of the blinds, and this complaint is unfounded in law.

Judgment affirmed.

Rehearing refused.

Provosty, J., takes no part.


author: Provosty, J.

text:
    No. 14,005.
    State of Louisiana vs. Hubert Baptiste.
    Syllabus.
    1. In a case where the plea of self-defense has been set up and' where the court has charged the law of self-defense, the following charge, namely: “When an injury intended against one person mortally affects another, as when a blow aimed at one person lights upon another and kills him, the enquiry will be -whether, if the blow had killed the person against whom it was aimed, the offense would have been murder or manslaughter. If ‘A,’ having malice against ‘B,’ strikes at and misses him, but kills ‘C,’ this is murder in ‘A’; but if the blow had been without malice and under such circumstances that if ‘B’ had died, it would be manslaughter. If a man, out of malice to ‘A,’ shoot at him, but miss him and kill ‘B,’ it is not less a murder than if he had killed the person intended” — is incomplete and incorrect, without the qualification to show that if “A,” in shooting at “B,” was acting in' self-defense, then that the killing of “C” would be equally in self-defense.
    2. The e® parte affidavit of the accused to a motion to quash the venire is not evidence to prove the facts on which the motion is based'.
    3. The allegation that the venire list of 300 names does not contain the name of a single colored man, although one-fourth of the population of the parish are negroes, while pregnant with the affirmation that the jury commissioners, in making up the venire list, discriminated against the negroes, yet is not a substantive allegation of that fact. However improbable it may be that the general venire list of 300 names should not contain the name of at least one colored man, if the jury commissioners had made their selection without discrimination, considering that one-fourth of the population are negroes, yet such a thing is not impossible, and the presumption is that the jury commissioners did their duty.
    4. The legal presumption arising from flight is more in the nature of an inference of fact, flight being but a circumstance in the case, to be considered by the jury, in connection with the other facts, in determining the probabilities in favor of or against the guilt of the prisoner.
    APPEAL from the Eighteenth Judicial District, Parish of Acadia-— DeBaillon, J.

      Walter Guión, Attorney General, and William Campbell, District Attorney (Lewis Guión, of counsel), for Plaintiff, Appellee.

      Story & Pugh, for Defendant, Appellant.
   The opinion of the court was delivered by

Provosty, J.

The defendant, a colored man, being on trial for manslaughter, and it appearing that he had killed the deceased while shooting- at another person, and his plea being self-defense, the court charged the jury as follows:—

“When an injury intended against one person mortally affects another, as when a blow aimed at one person, lights upon another and kills him, the enquiry will be whether, if the blow had killed the person against whom it was aimed, the offense would have been murder or manslaughter. If A.’ having malice against £B’ strikes at and misses him but kills £C,’ this is murder in A,’ but if the blow had been without malice and under such circumstances that if £B’ had died, it would be manslaughter. If a man out of malice to A,’ shoot at him, but miss him and kill £B,’ it is no less a murder than if he had killed the person intended.” .

The defense requested the court to add to the above charge the following :

“If you. believe from the evidence that the defendant was acting in self-defense and shot the deceased while firing at another, you must acquit A.’ ”

Without this addition the charge was incomplete and incorrect. It is not true to say unqualifiedly that a person who kills one person while shooting at another is guilty of either murder or manslaughter — he may have acted in self-defense, and be guiltless; and the court should have so charged.

The reason assigned for the refusal — that the requested charge was inapplicable to the facts of the case because the person shot at was fleeing when the defendant fired — does not accord with other parts of the instructions where the court does charge as to self-defense — without, however, the explanation called for by the requested charge. Without this explanation the charge of the court, taken as a whole, is to the effect- that although there is, as an abstract proposition, such a thing as the law of self-defense, yet if a man while shooting at one man kills another, he is necessarily guilty of either murder or manslaughter.

The court correctly held that the grounds set forth in the motion to quash the venire were not proved. The ex parte affidavit of the accused was not evidence.

Besides, the grounds of the motion are insufficient in law.

The allegation that the venire list of 300 names does not contain the name of a single colored man, although one-fourth of the population of the parish are negroes, while pregnant with the affirmation that the jury commissioners in making up the venire list discriminated against the negroes, yet is not a substantive allegation of that fact. However improbable it may be that the general venire list of 300 names should not contain the name of at least one colored man, if the jury commissioners had made their selection without discrimination, considering that one-fourth of the population are negroes, yet such a thing is not impossible; and the presumption is that the jury commissioners did their duty.

The charge of the court on the subject of flight, while not incorrect, should, we think, have been more full. The charge was as follows:—

“The legal presumption from flight is against the prisoner, but is not sufficient of itself to authorize a conviction, and it lies upon thé'defendant to explain or rebut it.”

Everything here stated is true, but the sound of it leaves on the mind an erroneous impression as to the weight to be attached to this presumption in a case like the one at bar, where the acts from which criminality is sought to be deduced were committed openly. The court should have qualified the charge by stating, to use the phrase of the Supreme Court of Missouri, quoted with approval by'Mr. Wharton in his work on Criminal Evidence (Sec. 750), “the countervailing circumstances incidental to a comprehensive view of the question.” In other words, the court should have explained that the fact of the accused having fled, if proven, was merely a fact in the ease to be taken into consideration by the jury in connection with all the other facts in the case in determining the probabilities for or against the guilt of the accused; that flight may be prompted by-a sense of guilt, but is not necessarily so; and that if the jury find that the accused fled, it is for them to consider what was the motive of the flight.

It is therefore ordered, adjudged, and decreed that the judgment and the verdict herein be set aside, and that the case be proceeded with according to law.


author: Nicholls, C. J.

text:
    No. 13,977.
    The Sligo Iron Store Company et als. vs. R. B. Blanks et als.
    Syllabus.
    1. Where plaintiffs allege an obligation on the part of certain commissioners to render them an account of their stewardship of a fund of over two thousand dollars, by reason of a legal right to a participation in the distribution of the same, the Supreme Court has jurisdiction to consider the correctness of the aetioniof the District Court in sustaining an exception to the demand of no cause of action, without regard to the amount of the interest of the plaintiffs in the fund. Whether they have the right to call for such an account is a matter for later determination on the merits.
    2. A petition in which plaintiffs allege that they have a legal right to participation with others in a fund in the hands of certain commissioners, that the latter have misapplied and diverted funds to their own use and to the prejudice of plaintiffs and pray that commissioners be ordered to file an account of their actions in the premises, discloses a cause of action.
    3. An exception of “no cause of action” should be disposed of separately from other exceptions.
    APPEAL from the Sixth Judicial District, Parish of Ouachitá— Sail, J.

      Andrew Augustus Gunby for Plaintiffs, Appellants.

      E. Tyler Lamhin for Defendants, Appellees.
   Statement of the Case.

The opinion of the court was delivered by

Nicholls, C. J.

The plaintiffs in this case, sixteen in number, appeal from a judgment dismissing their suit upon an exception of no cause of action and prescription.

In the petition filed by them after setting forth the amounts which they alleged to be due to each respectively by the Woodworth Lumber Company, Limited, they averred that on the 16th of May, 1898, the said company was dissolved and O. A. Haydon and O. S. Woodworth were appointed commissioners to liquidate the affairs of said corporation. That the said commissioners sold the property, rights and credits of the said company, to R. B. Blanks for $80,000.00 cash paid, which was deposited in the M. & E. Bank to the credit of the said Haydon and said Woodworth, commissioners, and! that the said commissioners appointed R. B. Blanks, president of the M. & E. Bank, their agent for the purpose of distributing said fund among the creditors of the said corporation. That the said commissioners were directed and ordered to use said funds for the payment of all the debts of the said Woodworth Lumber Company, Limited, as far as said funds would go; that said commissioners signed checks in blank and left them with the said Blanks for the purpose of paying all the creditors of the said corporation 50' cents on the dollar, except the costs of court and the labor claims, which were to be paid in full; that two of petitioners, to-wit: C. W. Sheets and A. H. Hoot, had a lien and privilege, as laborers, for the amount of their claims on the lumber owned by the said Wood-worth Lumber Company, Limited, and sold by said commissioners.

That there were no other privileges whatever against said fund, but that all privileges and rights of preference were relinquished and abandoned by all of the creditors who agreed to accept 50 cents on the dollar in settlement of their claims, including petitioners. That E. B. Blanks, individually, and as president of the M. & F. Bank of Monroe, acting by the authority of said commissioners, proceeded to distribute said funds in violation of his agreement, and the agreement entered into by all of the creditors of the said company, but refused and failed to pay petitioners any part of said fund, and the said commissioners had failed to pay anything to petitioners, notwithstanding amicable demand.

That the said E. B. Blanks and the said commissioners illegally and unfairly paid to the M. & F. Bank, out of said funds by check dated May 21st, 1898, $39,993.39 in payment of nine promissory notes, all dated March 1, 189'7, at the same time, and in pursuance of the same agreement ,that the notes were signed in favor of the Bank; that the said notes bore no privilege whatever on said funds; that only three of said notes were due at the time of said payment; that the nine notes aggregated $39,993.39, and that the amount, for which the commissioners and E. D. Blanks gave the bank a check, exceeded the entire principal of said notes by $60.12.

That the said M. & F. Bank and E. B. Blanks received the further amount of $8000 from the Eau Claire St. Louis Lumber Company as a bonus on the sale of the property of the Woodworth Lumber Company, Limited, in addition to the purchase price paid by said commissioners; that the attempt to pay said amount of the said funds to the M. & F. Bank was illegal, wrongful and a fraud upon petitioners’ rights, and was done for the purpose of giving the said M. & F. Bank an unjust and unlawful preference and advantage over the other creditors of the said Woodworth Lumber Company, Limited.

That the said E. B. Blanks, individually, and as president of the M. & F. Bank, agreed to act and did act as the agent of the said commissioners in the distribution of said funds, and he and the said bank were liable in solido to petitioners for their rightful and legal share of said fund.

That they were informed and believed that the said R. B. Blanks had paid a pro-rata share of said funds to all of the creditors of the said Woodworth Lumber Company, Limited, except petitioners. That the said M. & F. Bank, under the agreement entered into by all the creditors prior to the sale, was entitled to only fifty per cent, of its claims, to-wit: the sum of nineteen thousand seven hundred and sixty-six 63-100 dollars, and that the balance of the amount assumed to be transferred to said M. & F. Bank still belonged to the Woodworth Lumber Company, Limited, and the commissioners thereof, for the benefit of all its creditors.

That in pursuance of the agreement entered into by all the creditors, except the labor claims and costs aforesaid, all the attachment and other suits against the Woodworth Lumber Company, Limited, were dismissed and. the property released, and all claims and mortgages whatsoever were cancelled and erased, thus placing all creditors on a plane of exact equality.

That said commissioners had disposed of said funds illegally; that they turned the same over to said R. B. Blanks individually and as president of the said M. & F. Bank, with a book of cheeks signed in blank, for the purpose of giving said Blanks and said bank an unfair and unjust preference and advantage over petitioners, and to defeat their rights and claims against said funds.

In view of the premises, they prayed that C. S. Woodworth, O. E. Haydon, R. B. Blanks and the Merchants and Farmer’s Bank of Monroe, be cited to appear and answer hereto; that on final trial petitioners have and recover judgment against said defendants, in solido, for fifty per cent, of their respective claims above set forth against the Woodworth Lumber Company, Limited, with legal interest from May 23rd, 1898; that said Woodworth and Haydon be ordered and compelled to file a full and correct tableau and account of the funds received by them for the sale of the property of the Woodworth Lumber Company, and that said R. B. Blanks and said Merchants and Farmer’s Bank be ordered to return and distribute among the creditors of Wood-worth Lumber Company, Limited, all the funds deposited by said commissioners in said bank on May 21st, 1898, and to pay over to petitioners their legal and just share of said funds.

They further prayed for all such further orders and decrees and proceedings as may be necessary to place them on an equal footing with the other creditors of the Woodworth Lumber Company, Limited, and for all costs and for general relief.

Defendants excepted that plaintiffs’ petition disclosed no cause of action, and that if it did the cause of action was long since prescribed; they further pleaded estoppel.

The District Court overruled the pleas of res judicata and estoppel, and sustained their plea of no cause of action and prescription, and plaintiffs appealed.

Opinion.

The defendants filed in the Supreme Court a motion to dismiss the appeal on the ground that the court was without jurisdiction ratione materiae. They claim that the action brought is a revocatory action and that the aggregate amount of the complaining creditors’ claim being less than two thousand dollars, the Supreme Court has no jurisdiction. We do not consider the action a revocatory action, though there are allegations of unjust preference having been given and of wrong doing. The claim asserted is that certain commissioners were appointed to liquidate the affairs of the Woodworth Lumber Company, that eighty thousand dollars went into their hands, proceeds of the sale of the property of the company, constituting a fund for the payment of its creditors. That the creditors are entitled to have them render an account of this fund, and they demand that such an account should be rendered. It is' incidentally alleged that a sum largely over two thousand dollars has been illegally placed in the hands of the co-defendants who have wrongfully applied it to the payment of their own claim against the company to the prejudice of the plaintiffs.

The object of the demand is to have the Commissioners render an account in the premises and to have returned to them, for the purposes of liquidation, an amount largely in excess of two thousand dollars which it is declared has been illegally taken from the funds in the hands of the commissioners. In other words it is an action for a fund sufficient in amount to give this court appellate jurisdiction over matters in dispute respecting its distribution. If the parties be liable in law to render an account in the premises, it is the right of every creditor to demand the rendering of the account independently of any question as to whether it be large or small, or what the amount to be received by him as the result of the accounting will be. (Succession of Duffy, 50 Ann. 795.)

We are not called upon, on the motion to dismiss this appeal, for “want of jurisdiction” to examine into the question whether the party claiming to have the account rendered be entitled to such account. That will come up later.

. We do not think the appeal should be dismissed. The motion to dismiss is denied and the appeal is maintained. If the plaintiffs’ allegations be true, we think they'are entitled to demand an account at the hands of the commissioners. The plaintiffs are entitled to have the amount placed in their hands legally accounted for. The rights and liabilities of all parties can be more speedily and properly ascertained and liquidated in this form than in any other. We think the District Court should have taken up the exception of no cause of action first and separately from any other exception. Having sustained the exception of no cause of action it should not have passed upon the exception of prescription on the face of the papers. Bringing up a number of rulings upon exceptions other than that made upon the want of cause of action may give rise to complications which should be avoided. For the reasons assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be, and the same is, hereby annulled, avoided •and reversed, the exception of prescription is reinstated to be hereinafter reversed, the exception of prescription is reinstated to be hereinafter passed upon and the cause is remanded for further proceedings according to law. Costs of appeal to be borne by appellee.

Rehearing refused.


author: Blanci-iard, J.

text:
    No. 13,847.
    Duke Hodge vs. The Monroe Mercantile Company, Limited.
    Syllabus.
    On Motion to Dismiss Appeal.
    J. Whore a motion for appeal asks that the same be made returnable “according to law,” and the judge errs in fixing the return day, and it does not appear that to the appellant is this error imputable, the appeal will not be dismissed.

      2. A, in execution of a judgment against B, seizes goods of the value of $500 belonging to C. The latter, claiming ownership, enjoined the sale, and in the same action sued for damages exceeding $2000. Held — ’What is at issue is the ownership of the goods, valued at $500, plus the damages claimed, and this court alone has jurisdiction of the case on appeal.
    8. Since, to recover damages, plaintiff must establish his ownership of the goods, it results that to the court having jurisdiction of the demand for damages must necessarily be committed the power to determine the question of ownership vel non. If the value of the goods exceed $2000 and the amount of damages claimed is less than $2000, the case must be brought here on appeal, and vice versa.

    4. The appeal here can not be dismissed because of the fact that, concurrently, an appeal in the cause was taken to the Court of Appeals — it not appearing that the appeal had been lodged in the latter court prior to its lodgment here.
    On the Mbeiis.
    1. There is no provision of statutory law and no decision of this court which forbid the cumulation of the two causes of action — demand to be decreed owner of personal property seized for the debt of another, and damages for its unlawful seizure.
    2. Nor is plaintiff’s right to demand damages of the judgment creditor limited to an action on the indemnity bond which the sheriff exacted from the creditor at' the time of the seizure.
    APPEAL from the Thirteenth Judicial District, Parish of Eapides —Blackman, J.

      Robert P. and R. A. Hunter, for Plaintiff, Appellee.

      JE. Tyler Lamkin, and White & Thornton, for Defendant, Appellant.
   The opinion of the court was delivered by

Blanci-iard, J.

A motion to dismiss this appeal is filed.

The first ground is that the order of appeal fixes the return day thereof at a date more than sixty days from the rendition of the judgment appealed from.

In point of fact the trial judge, through error of calculation, made the appeal returnable sixty-two days from the date of his order granting the appeal, instead of sixty days as was his intention. He certifies to this over his own signature, and states, further, that the error was his and not that of appellants, whose motion for appeal prayed that the appeal be made returnable according to law. The return day was not suggested by appellants.

The law directs the judge to fix it at not less than 15 days and not more than 60 days from the date of the order of appeal. Act 92 of 1900.

Owing to the heavy work in the clerk’s office the judge, in this instance, intended to allow the clerk the maximum limit for making out the transcript, but, in doing so, failed to take into consideration that the months of January and December have each 31 days and not 30 days.

In this way the time fixed for the return of the appeal actually includes 62 days. But since the error is not imputable to appellants, it does not suffice to dismiss their appeal.

Elder vs. New Orleans, 31 La. Ann. 501; State vs. Delwood, 33 La. Ann. 1229.

The second ground urged for dismissal is that the appellant, at one and the same time, in the same motion for, and order of, appeal, took appeals, respectively, to this court and to the Court of Appeals, of the Third Circuit, from the judgment rendered in this cause. In other words, that he is seeking to prosecute at the same time two appeals from the same judgment — one to this court, the other to the Court of Appeals.

The appeals were lodged in the respective courts to which taken.

It appears that the Court of Appeals has continued the case on its docket, awaiting, doubtless, the issue of the appeal here.

If this court has jurisdiction of the case its jurisdiction covers the whole of it, and if it has jurisdiction, then that jurisdiction is exclusive and the appeal to the Court of Appeals was erroneous.

It is clear that this court has jurisdiction.

It is a suit for damages growing out of injury alleged to have been inflicted by judicial process. In execution of a judgment recovered against J. Ford Hodge, father of the plaintiff herein, the sheriff seized a lot of liquors and groceries of the value of (say) $500 which Duke Hodge, the plaintiff, asserts the ownership of. Duke Hodge enjoined the sale and coupled with his injunction suit a demand for $17,700 damages.

What is at issue, then, is the ownership of goods valued at $500. plus the damages claimed.

While the value of the goods represents an amount below the minimum jurisdictional limit of this court, that value, added to what is claimed as damages, far exceeds the minimum jurisdictional limit.

Whether plaintiff is entitled to damages depends on two things (1) his ownership of the goods seized for the debt of another; (2) proof that he has suffered damages.

If the goods are not his property, his demand for damages falls. Therefore, to the court having jurisdiction of the demand for damages must necessarily be committed the power to determine the question of ownership vel non of the goods.

In this sense, the two elements of the case — the goods, the damages claimed — unite to form one cause of action.

The first, alone, presents no ease for this court to consider, but united with the demand for damages, a case is made up which can be entertained on appeal by no other court than this.

This is not a case where an appeal was first lodged in the Court of Appeals and after being lodged there, another appeal concurrently taken from the same judgment to this court was lodged here — as was the ease in Freiberg vs. Langfelder, 45 La. Ann. 983, relied on by appellees in their motion to dismiss.

jSTo court had been seized of jurisdiction of this appeal, by the filing of the record of the case there, prior to the investiture of this court with jurisdiction resulting from the filing of the transcript here.

This being so, and it clearly appearing that jurisdiction rattone materias is in this court, the appeal can not be dismissed because of the fact that, concurrently, an appeal in the cause was taken also to another court.

Since this court assumes jurisdiction it follows that the inferior appellate court (which has not yet acted on the appeal there pending) has not jurisdiction and will so hold.

On the Merits.

Defendant’s exception that “the demand for damages is premature, being in advance of the recognition of plaintiff’s ownership of the property seized,” and that it can not properly be joined with the demand for recognition of title to personal property, is without force.

There is no provision of statutory law and no decision of this court which forbid the cumulation of such causes of action.

The cases cited by defendant in support of his contention (47 La. Ann. 691; 30 La. Ann. 1294) are not in point.

The same is true of the exception that plaintiffs right to demand damages of defendant is limited to an action on/ the indemnity bond which the sheriff executed at the time of the seizure.

Section 3579 of R. S. as amended by Act 37 of 1882, and 41 La. Ann. 300, cited as supporting this view, do not do so.

With regard to the case itself, only questions of fact arise. Were the goods seized in execution of the judgment which defendant company had recovered against J. Eord Hodge the property of the judgment debtor? If not, did they belong to the plaintiff herein? If yea, has he been damaged by their seizure, and if so to wliat extent ?

The case was tried below by jury. A verdict in favor of plaintiff was returned sustaining the injunction and awarding plaintiff damages, all told, in the sum of $225.00.

From the judgment based on this verdict defendant appeals, and plaintiff joins in the appeal by praying for an increase in the award for damages.

This verdict and judgment maintains plaintiff’s contention of ownership in himself, but assesses the damages suffered by the seizure at an inconsequential sum compared with that claimed.

A careful consideration of the evidence has not led to the conclusion that the .verdict of the jury is erroneous, either on the question of plaintiff’s ownership of the goods seized, nor in respect to the quantum of damages suffered. It is not deemed necessary to give a resume of the testimony.

Judgment affirmed.

Rehearing refused.


author: Breaux, J.

text:
    No. 13,510.
    James Anderson vs. Elder, Dempster & Co.
    Syllabus.
    The appliances for loading the ship which defendant was engaged in loading, were complete and in good order, except that a block, not in use, attached to the boom of the ship had not been moused. Attention of the foreman in charge had been called by one of the workmen under him to the fact that this block, as it was not moused, was dangerous. The block not moused was on the line of the wire rope, strung under the boom and operated by the winch. It was mid-way the boom. The other block which was being used when the accident happened was at the end of the boom. The foreman did not. immediately after having been notified, take steps to have the block taken down or moused. A few moments after, the wire rope struck the block, causing it to slip from the strap. In its fall it slipped on the rope to where the plaintiff workman was standing in charge of the winch and struck him, inflicting a wound in the head.

      The danger was not open and apparent, and plaintiff, as a workman in charge of the winch requiring all his time and attention, did not have opportunity to be informed of the danger. The foreman, the day previous, had inspected the appliances. He did not have the block taken down or moused on the day following, when his attention was directed to the danger. The rule is general that the master is responsible for any act of omission or commission of his agent causing damages while acting in the scope of his employment.He, although he may not be present in person directing the worlf, is, as relates to management and discipline, ordinarily needful, as far as rea- . sonably possible, to avoid casualties.
    APPEAL from the Civil District Court, Parish of Orleans — Si. Paul, J.

      Dari & Kernan, for Plaintiff, Appellant.

      Saunders & Gurley, for Defendants, Appellees.
   The opinion of the court was delivered by

Breaux, J.

This ease is before us on a petition of plaintiff for dam- • ages in the sum of five thousand dollars against the defendant firm arid against its members individually.

Defendants were contractors in charge of loading the ship Inehuloa. Plaintiff is a longshoreman. He, and those with whom he was working, were hoisting logs and loading the ship at the time the accident of which he complains occurred.' He had charge of, and was running, the steam winch. This work, it seems, required all of his time, care, and attention while at work. He was with several others in the service of the defendants. His place was on the deck behind the winch. In performing the work in which he was employed he was surrounded by staves. One of the number of the employes was a derrick man. He held the guy and attended to the movements of the hoisting machine. He gave the signal to plaintiff, who would, upon these signals, put on or cut off the power as the work of lifting the freight from the wharf and lowering it in the ship required. There was a foreman in charge who directed the work.

The appliances, in addition to the steam winch, consisted of a boom attached at the base to a ring around the mast for raising and loading heavy freight. A wire cable ran under and along to the lower line of the boom from the steam winch to near the end of the boom to and over the pulleys in the block at the end, and then down the sling which gripped the log and hoisted it to the ship’s hatch and lowered it in the hull. There were two blocks on this boom, both large, weighing about fifty pounds. The one near the top of the boom was in use; the other at the centre was not in use; it was left attached to tie boom, although idle, on the order of the foreman, who says it was left attached because it was the intention to use it at some future time. The centre block was not moused, -that is, the hook by which the block was suspended from the boom had not been closed as usual. It is done by binding the point and shank of the hook, thus preventing the block, to which it is suspended, from falling.

The defendants’ superintendent of the outside work of loading and unloading ships, as a witness for defendants, testified that mousing is done to hold the block in the strap; that the blocks are furnished by the defendants. The foreman of the defendants on board of .the ship inspected the hoisting appliances before beginning with the work of hoisting. The blocks were attached to the boom, as they were, under his direction. The cable wire under the boom when being drawn taut by the winch struck the idle block on the boom and struck it out of the strap by which it was suspended. The block then slipped down on the wire rope in an oblique direction to the place plaintiff was standing at the winch, fifteen or twenty steps back, struck him, and inflicted a wound on his head.

It is evident that defendants undertook, as was their duty, to provide suitable appliances for the work in hand, but the failure to mouse the block was one that should have been avoided. We are informed that it would have taken a few minutes’ time only.

The defendants insist that the danger was open and apparent, and that the plaintiff, as a workman, had equal, or superior, knowledge of the danger. The proposition thát the servant is to avoid all dangers that may be discovered by ordinary care, if sustained by the facts, must be considered as controlling. The testimony discloses that the foreman knew that the idle block attached to the centre of the boom was not fastened in the usual way. His attention was called to the unmoused hook by the derrick man, who said to the foreman that, unmoused as it was, it was dangerous. This derrick man had charge of boom. He turned it horizontally by stays or guys in hoisting freight. He could see the whole of it. While on the other hand, it is not shown by the testimony that plaintiff knew that it was not moused. He denies, as a witness, that he had any knowledge of the fact that the block had not been moused. In support of his denial, he points to the fact, not controverted by any of the witnesses, that he was surrounded by staves; that the funning of the winch required all his time; that he was some fifteen 'or twenty steps in an oblique direction from the block when it was suspended. The foreman and the derrick man and the employes in and about the hatch were in a better position to see the block and to discover that it was not moused.

We have not found it possible to conclude that it was the duty 'of, or ■that any obligation rested upon, this winch man, the plaintiff, to look carefully around to see if the appliances not immediately under his control had been made perfectly secure. This was, we take it, the work of others. His duty was to run the winch, to loosen or tighten the cable, as he was directed by the derrick man.

From one of the points of view of the issues presented, it is not certain that it was quite apparent, at a mere glance, that the block was not moused. The foreman, who had inspected the appliances, swore that the block was moused. To show the contrary, two witnesses testified. Their testimony and corroborating circumstances sustain the contention that it was not moused. The testimony of the uncorroborated foreman can not prevail.

One of the questions involved is based upon the fact, shown by the testimony, that the position of the block was dangerous to the me” working in the hold, but not apparently dangerous to one working at plaintiff’s (Anderson’s) station. We find, at this point, some variance between one of defendants’ positions that the danger was apparent to every one and the other that it was not a danger forseeablé in so far as plaintiff is concerned, and he was not under the block or within such a distance as to give rise even to the intimation that the block, in its fall, would take the course it did. Be this as it may, there was danger, as the result shows. The defendant, through its foreman, had been warned by those in a position to see the danger and the plaintiff had not. Because of this warning it had become an apparent danger to the defendant, but not to the plaintiff.

The fact that the block took an oblique instead of a perpendicular direction, does not lessen the liability. The immediate cause of the accident was the slipping of the block from the strap. The direction of the fall did not have the effect of relieving defendants, admonished as they were through the foreman, from liability. The act was one act, continuous, united and inseparable, when considered with reference to the responsibility of the parties. “It is also negligence for which the master may be held responsible, if, knowing of any peril which is known to the servant also, he fails to remove it in accordance with his assurance that he will.” Cooley on Torts, p. 661. True, the foreman had not been warned by plaintiff,- but he had been sufficiently warned by a co-servant to whom he, the foreman, it seems, said that he would have the block taken down.

Able and energetic counsel, in the next place, cite the article of the Civil Code 2317 with reference to the extent of the master’s responsi-. bility, arising only, they contend, when he might have prevented the act. This article has, several times, of late years, been pressed upon this court’s attention. It has been repeatedly considered that, under the spirit of this article, intended to govern the relations between master and employe, it is not subject to the strict construction for which the defendants contend. By the first paragraph of the article, masters are answerable for the damages occasioned by “servants and overseers.” The last paragraph of the article, containing the asserted restriction, does not have the effect of limiting liability to cases where the master has had ample opportunity to prevent the act and failed to avail of it. This would have the effect, if very strictly construed, of limiting the responsibility of the master to an extent that would enable him to escape liability, though at times ngeligent or grossly indifferent. Discipline, good management, and interest in the work personally, or through superintendents, foremen and others in charge, are, we think, to be considered as part of the duties enabling the master to prevent liability. We are dealing with a principle or rule which governs in managing or directing labor. In this particular case, we have every reason to believe that the foreman was competent. It happened that while he was in charge, one of the employes was struck and wounded. The casualty falls within the provisions of law fixing liability. As a general rule it must be enforced.

We would not be justified, in view of the prior decisions, were we to make an exception in this case. In Nelson vs. R. R. Co., 49 A. 492, this court said that the cited article supra» “had no application to a corporation capable of acting through agents.”

We have found no good reason to limit the construction as applying only in so far as corporations are concerned. If it has application to one, it should have application to the other. The negligence is not less in degree whether it be a corporation, a firm, or an individual, who employs labor. Employes are entitled to the same protection, whether employed by corporations, partnerships, or individuals. “Every person owes to every other the duty of due care to avoid injury, and whether he manages his business in person or he trusts it to 'others, he must, at his peril, see that this obligation is observed.” Oooley on Torts, second edition, page 631.

This brings us to a consideration of the amount which should be allowed as damages. Prominent members of the medical profession, testifying, have disagreed regarding the extent of the injury suffered. Erom the evidence, we .infer that plaintiff has recovered his health. He testifies that on account of his wounds he was unable to work for some time. While at work, his earnings were about twelve dollars per week. Our view of the casualty and the circumstances lead us to the opinion that the damages should be assessed at fivie hundred dollars.

Considering the law and the evidence, the judgment appealed from is annuled, avoided, and reversed.

It is further ordered, adjudged, and decreed, that plaintiff recover judgment of the defendants in the sum of five hundred dollars, with legal interest from the date of the judgment, and costs of both courts.

Rehearing refused.