author: Mohg-AN, J.

text:
    No. 5909.
    State ex rel. B. Bloomfield & Co. vs. Charles Clinton, Auditor.
    Tho relators wore not partios to tho suit oí tho State vs. Clinton, in which was granted tho injunction sot up as a ground for not issuing tho warrants claimed in this case, and aro not therefore bound thereby.
    Tho Legislature having made an appropriation for tho purpose of paying certain legitimate expenses of tho House of Representatives, the relators aro entitled to bo paid out of tho appropriation so made, provided they have a good claim. Their claim is evidenced by a voucher from tho officers of tho House of Representa-tivos to whom was intrusted tho expenditure of tho appropriation, and there is nothing to show that tho vouchor was improperly obtained or improvidently issued.
    Tho objection of the Auditor that he can not issue a -warrant because there is no money in tho treasury to pay tho samo is not a good one. Tho appropriation was legally made, and it has not boon exhausted. Tho relators aro therefore entitled to their warrants.
    APPEAL from the Superior District Court, parish of Orleans. Haiu-kins, J.

      John Bay, for .relators and appellants.

      Henry C. Dibble, Assistant Attorney General, for respondent and appellee.
   Mohg-AN, J.

Relators aver that just before the convening of the General Assembly, on the fourth of January, 1875, they sold and furnished to the State, through J. W. Quinn, sergeant-at-arms of the House of Representatives, the necessary articles to fit up the House of Representatives and rooms necessary for the use of the House, preparatory to the meeting of the General Assembly; also, the stationery necessary for the use of, and which was used by, the House of Representatives for the session commencing on the fourth of January, 1875, the whole amounting in value to §11,102 75.'

They aver that these articles are classed contingent expenses of the House of Representatives, and were expenses necessary for the operation and carrying on the machinery of the State government-, and such, as were specially provided for by acts Nos. 2 and 17 of the session of 1875, and that they are entitled' to be paid as provided for by said acts; they aver that appropriation was made by act No. 2 aforesaid to pay the contingent expenses of the House of Representatives, which appropriation has been exhausted without their having been paid; that subsequently, by act No. 17, approved April 3,1875, the Legislature made an additional appropriation of twonty-fivo thousand dollars to pay the balance due for the mileage and per diem of the House of Representatives and contingent expenses thereof, which" amount, they aver, is unexpended; they aver, and so the fact is, that they have the certificate of the chairman of the Committee of Contingent Expenses of the House, approved by the Speaker thereof, that the amount hero claimed by them is due, with an order from these officers upon the Auditor to issue bis warrant upon the State Treasurer to pay the amount therein certified to be due, 811,102 75; they aver that they have presented this order to the Auditor and demanded his warrant on the Treasurer for the amount thereof, which the Auditor has refused to give. They pray for a mandamus against him compelling him to issue the warrants.

The Auditor answers that he can not issue the warrants, because of the injunction issued against him in the ease of the State ex rel. the Attorney General vs. Charles Clinton, State Auditor (this respondent), in case No. 26,410 of the docket of the Superior District Court, and he makes that suit a part of his answer; he denies that relators are entitled to be paid out of the appropriations referred to in their petition; he says that in no event can he issue a warrant for the claim hero made, there being no money in the treasury to pay the same; and he says that if the rela-tors’ claim against the appropriations relied upon is good, he could only recognize and register the claim. Wherefore he prays that the mandamus bo refused.

The district court dismissed the rule. Relators appeal.

The relator was not a party to the suit of the State vs. Clinton, in which the injunction set up issued, and is not, therefore, bound thereby. The Legislature having made an appropriation for tho purpose of paying certain legitimate expenses of the House of Representatives, tho relator is entitled to bo paid out of the appropriation so made, provided he has a just claim.

His claim is evidenced by a voucher from the officers of the House of Representatives to whom was intrusted the expenditure of the appropriation, and there is nothing to show that the voucher was improperly obtained or improvidcntly issued.

Tho objection of the Auditor that he can not issue a warrant because there is no money in the treasury to pay the same is not a good one. The appropriation was legally made, and it has not been exhausted. The relator is, therefore, entitled to his warrant.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that the defendant, tho Auditor of Public Accounts, be ordered to issue the warrant claimed by the relator according to law, the costs to be borne by the defendant.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 6180.
    M. Berwin vs. M. Legras.
    B. Weiss mortgaged to plaintiff a lot of ground described in the petition. It was forfeited to the State, for non-payment of taxes due by Weiss. Subsequently it was sold for taxes to defendant. Plaintiff, the mortgage creditor of weiss, now sues to subject this property in the hands of said purchaser to tho payment of the mortgage debt, the proceeding being by an hypothecary action.
    A stock of goods belonging to Weiss was attached by his creditors. The tax collector intervened, claiming a privilege for the amount of taxes due by Weiss, and obtained judgment for some seven hundred dollars, with recognition of privilege superior to that of tho seizing creditors. Tho goods were sold on twelve months credit, and the bonds or obligations of the purchasers have not been collected. This sale was made ponding the litigation by order of court on account of the perishable nature of the goods attached.
    Although the State had judgment for taxes due by Weiss and was decreed to have a privilege on tho goods attached superior to that of tho seizing creditors, this imposed- no obligation on the tax collector to sue on the bonds given for the goods sold as aforesaid, nor did it impair the right of tho State to cause other property of Weiss, the delinquent taxpayer, to be seized and sold for taxes due the State.
    The lot in question had been forfeited to the State, and the sale thereof to pay the amount duo by the delinquent owner was valid, if the forms of law for a forced sale wore observed, about which there is no controversy. While that sale stands tho mortgage of Weiss in favor of plaintiff can not be exrforeod on the property.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      R J. Bowman, for plaintiff and appellee.

      T. Ü. Manning, for defendant and appellant.
   Wyly, J.

Tho motion to dismiss this appeal for want of jurisdiction ratione materice is denied, because the matter in dispute, the lot of ground, exceeds in value ñve hundred dollars.

In 1871, Benjamin Weiss mortgaged to plaintiff the lot of ground in Alexandria described in the petition. It was forfeited to the State for non-payment of taxes due by Benjamin Weiss. Subsequently it was sold'for taxes to defendant. Plaintiff, the mortgage creditor of Weiss, now sues to subject this property in the hands of the purchaser to the payment of the mortgage debt, the proceeding being an hypothecary action.

The grounds of plaintiff’s action, as stated in his brief, are embodied in two propositions:

First — That the taxes, to pay which the lot in question was sold, were not taxes upon said lot, and were never recorded.

Second — That the tax collector could not at his option abandon the goods upon which the taxes were assessed, and upon which he was decreed to have a privilege superior to all others, and seize and sell the property mortgaged to plaintiff.

The stock of goods of Benjamin Weiss was attached by his creditors, Joseph Hoy & Co. The tax collector intervened, claiming a privilege for the amount of taxes due by Weiss, and obtained judgment for some seven hundred dollars, with recognition of privilege superior to the seizing creditors. The goods, however, were sold on twelve months credit, and the bonds or obligations of the purchasers have not been collected. This sale was made pending the litigation by order of court on account of the perishable nature of the things attached.

Although the State had judgment for taxes due by Weiss, and was decreed to have a privilege on the goods attached superior to Joseph Hoy & Co., this imposed no obligation on the tax collector to sue on the bonds given for the goods sold as aforesaid; nor did it impair the right of the State to cause other property of Weiss, the delinquent taxpayer, to be seized and sold for taxes due the State. The lot in question had been forfeited to the State, and the sale thereof to pay the amount due by the delinquent owner was valid if the forms of law for a forced sale were observed, about which there is no controversy. While that sale stands, the mortgage of Weiss in favor of plaintiff can not be enforced on the property in question. Morrison vs. Larkin, tax collector, 26 An. 699.

It is therefore ordered that the judgment herein in favor of plaintiff be annulled, and it is decreed that plaintiffs demand be rejected with costs.

Behearing refused.


text:
    No. 6150.
    E. E. Norton and Will. Steven, Assignees of Joseph Hoy & Co., in Bankruptcy vs. Citizens' Bank of Louisiana.
    Tlio objection that tho property in question was adjudicated for less than its appraised value on twelve months credit, without having boon previously offered for cash, can not bo sustained. The sale was made to pay debts, and tho creditors did not require tho sale to be made for cash.
    It would have been more regular for tho court having jurisdiction of the succession to order tlio sale of the land in tho parish of Grant, by the sheriff of said parish. But under the divisions of this court a valid sale may be made of land situated in another parish by the sheriff in the parish where tho succession was opened pursuant to tho order of court having jurisdiction of the succession.
    The sheriff was bound to obey the order of court, tho constitution, and the law, in offering tho properly for sale in lots of from ten to fifty acres, and very properly refused to sell the land in block, even for a higher price than that which it brought when sold by lots.
    Defendants’ prayer to have tlio judgment dissolving tho injunction sued out by pliintiffs so amended as-to allow one hundred dollars damages as attorney fees must be gr ■ ntod.
    APPEAL from the Ninth Judicial District Court, parish of Rapides’. Orsborn, J.

      It. A. Hunter, for plaintiffs and appellants.

      Manning & Bowman, for defendants and appellees.
   Wyly, J.

The succession of Henry Boyce was opened in the parish of Rapides by tho public administrator. The property of said succession consisted of a tract of land in the parish of Rapides, and also a plantation situated in tho parish of Grant.

The tableau shows that the succession is insolvent.

In April, 1875, on the application of the public administrator, the parish court ordered the sheriff to sell both tracts of land in lots from ton to fifty acres, for cash sufficient to pay costs, and balance on twelve months credit. At the adjudication tho tract of land situated in the parish of Grant was adjudicated to the Citizens’ Bank in separate lots at the aggregate price of $3285, the inventoried value being $4000.

On the day of the sale, and subsequent to the adjudication, plaintiffs, assignees of Joseph Hoy & Co., claiming to be judgment creditors of the succession of Boyce, enjoined the sheriff from making a deed to tho Citizens’ Bank for tho property adjudicated as aforesaid on the grounds:

First — That the property was adjudicated for less than its appraised value on twelve months credit, without having been previously offered for cash.

Second — That the order of the parish judge was illegal and void, because the sheriff of Rapides was without authority to sell in Rapides, land situated in Grant.

Third — That the Citizens’ Bank has received the adjudication for less than four thousand dollars, notwithstanding an offer was made by a responsible party to bid the sum of fifty-three hundred dollars for said land, if sold in block with the understanding that the aggregate price should be apportioned to each of the lots into which the land had been divided. '

Fourth- — That the land was sold without appraisement as required by law.

Tho sale was made to pay debts, and the creditors did not require the sale to be made for cash. This is a sufficient answer to the first and fourth objections. 13 An. 382 ; 19 An. 353 ; 10 E. 396.

It would have been more regular for the court having jurisdiction of the succession to order the sale of the land in tho parish of Grant by the sheriff of said parish. But under tho decisions of this court a valid sale may bo made of land situated in another parish by the sheriff in the parish whore tho succession was opened pursuant to the order of the court having jurisdiction of said succession. Chaney vs. Gray, 7 R. 144; see, also, 9 M. 461. This disposes of the second objection.

The sheriff was bound to obey tho order of the court and the constitution and the law in offering the property for sale, in lots of from ten to fifty acres, and ho very properly refused to sell the land in block to the bidder offering fifty-tnree hundred dollars. This disposes of the third and last objection.

Defendant, tho Citizens’ Bank, prays an amendment of the judgment dissolving the injunction, so as to allow one hundred dollars damages as attorney foes ; this should be granted.

It is therefore ordered that the judgment heroin be amended so as to condemn plaintiffs to pay defendant one hundred dollars, and that as amended it bo affirmed with costs.


author: Wxly, J.

text:
    No. 6151.
    Maria L. Borron and Husband vs. J. F. Sollibellos.
    In February, 1871, this court dissolved tho injunction, with damages, which plaintiff had taken to stop the sale of tho undivided half of a plantation and movables and crop thereon in tho parish of Rapides, belonging to plaintiff, and which had boon seized by defendant under a judgment against plaintiff in injunction.
    In September, 1871, plaintiff sued out this second injunction lo arrest' the sale on several grounds mentioned in her petition. Tho evident object of this second injunction is to obtain tho recognition of tho right of n homestead. As plaintiff did not have this right when the seizure was made and when tho first injunction was sued out, she can not be allowed to claim it now. Besides, the thing seized and about to be sold is an incorporeal, tho undivided half of a certain property, and to this tho right of homestead does not attach.
    To the notice of seizure plaintiff appended a written waiver dispensing with the necessity of advertisement. This waivor was sufficient, notwithstanding the attorney, about tho time the second injunction was sued out, attempted to withdraw tho waiver.

      The objection that defendants are attempting to sell without causing the property to be divided into lots of from ton to fifty acres is unfounded. As tho thing seized is an incorporeal (tho undivided half of a plantation, movables and products), it can not be divided into lots and sold as a corporeal immovable is required to be sold.
    Furthermore, all these objections eom.e too late. They should have been urged when tho first injunction was sued out. Plaintiff has abused tho equitable writ of inj unction, for which damages must be imposed.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      M. Ryan and R. J. Boioman, for plaintiff and appellee.

      Robert A. Hunter and T. G. Manning, for defendants and appellants.
   Wxly, J.

In September, 1873, the defendant, Sollibellos, seized under his judgment against plaintiff, Maria L. Borron, wife of James Borron, the undivided half of a plantation and the movables and crops thereon, in the parish of Rapides, belonging to plaintiff, Mrs. Borron. She enjoined the sale, and the court below sustained the injunction; but this court in February, 1874, dissolved tho injunction with damages. In September, 1874, plaintiff sued out this, the second injunction, to arrest the sale on the grounds —

First — That she had withdrawn the waiver of advertisement made by her, and the sheriff had notified her to appoint an appraiser without making the necessary advertisement.

Second — That she is entitled to a homestead, a partition having been made since the seizure, and the part where the residence is situated having fallen to her.

Third — That she is entitled to a certain credit for the amount stated in the petition.

The court maintained this injunction, and defendants appeal.

The evident object of this second injunction is to obtain the recognition of the right of a homestead. As plaintiff did not have this right •when the seizure was made, and when the first injunction was sued out, she can not be allowed to claim it now. The thing seized and about to be sold is an incorporeal — the undivided half of certain property — and to this the right of homestead does not attach. Besides, the evidence shows that plaintiff is not entitled to á homestead; that her husband, upon whom the support of the family devolves, is an able-bodied man, that he recovered from tho mixed commission in September, 1874, seven thousand seven hundred dollars in gold, and that since February, 1875, he and his family have been living at Dayton, Kentucky, for the purpose of educating his children.

To the notice of seizure plaintiff appended the following written waiver:

“We hereby waive advertisement of the property within described, and agree the sale shall have the same effect as if published in the official organ of this parish for thirty days. M. L. BORRON.
“ Authorized by me, James Borron.
“ Filed December 3,1873.”

We think this waiver dispensed with the necessity of advertisement, notwithstanding the attorneys, about the time the second injunction was sued out, attempted to withdraw the waiver.

The credit on the judgment which plaintiff alleges she is entitled to is not supported by the evidence.

The objection that defendants are attempting to sell without causing the property to be divided into lots of from ten to fifty acres is unfounded. As the thing seized is an incorporeal (the undivided half of a plantation, movables and products), it can not be divided into lots and sold as a corporeal immovable is required to be sold.

Furthermore, wo will remark, all those objections come too late; they should have boon urged when the first injunction was sued out.

Plaintiff has abused the equitable writ of injunction, and has without cause delayed tho defendant, Sollibellos, in the enforcement of his execution, for which damages should be imposed.

It is therefore ordered that the judgment herein be annulled, that the injunction be dissolved, and that defendant, Joseph L. Sollibellos, recover of plaintiff and the sureties on her injunction bond, in solido, twenty per cent damages on the amount enjoined. It is further ordered that plaintiff pay costs of both courts.

Rehearing refused.


author: IVyly, J.

text:
    No. 6027.
    John S. Richardson vs. E. M. Cramer, Sheriff, et al.
    Alter joining in tho appeal tho defendants could not ask a dismissal thereof for tho informality stated.
    Carpenter, to secure the payment of two promissory notes drawn by himself to his own order, mortgaged his plantation known as the willow Glen. The mortgage was in favor of B. B. Thomas or any future holder or holders of said notes or either of them. The mortgage has been foreclosed by the present holders thereof, and an order of seizure and sale has issued. Tho plaintiff, the transferee of Carpenter, subseauently to the service of the notice of seizure, sued out this injunction to restrain the sale.
    It is not pretended that the notes do not evidence a valid debt duo by Carpenter, the maker thereof; whether he owed the nominal mortgagee or not is immaterial. A mortgage may be given to secure a future debt. The moment tlio notes passed to Farrar & Dennis, who are the real owners, and became evidence of a real debt due by Carpenter, tlio mortgage to secure the payment attached.
    The court is satisfied that the title set up by plaintiff is a mere simulated one. Carpenter remained on the premises; no proof was adduced to establish the verity of the sale; the pretended transfer ivas made after notice of seizure had been served on Carpenter; and Richardson never went into possession after the pretended sale, under such circumstances the law presumes simulation.
    APPEAL from the Thirteenth Judicial District Court, parish of Madison. Hough, J.

      Cobb & Gunby, for plaintiff and appellant.

      G.

      Spencer Mayo, W. B. Spencer, and Wells £ Corlcern, for defendants and appellees.
   IVyly, J.

On the twenty-first day of 'July, 1873, Charles Carpenter ■executed two mortgage notes-on his plantation known as the “Willow ■Glen plantation,” one of said notes being for twenty-six hundred dollars ■and the other for fire thousand five hundred dollars, both drawn payable to his own order and by him indorsed; and the mortgage was in favor of Benjamin B. Thomas and any future holder or holders of said two notes or either of them.

In January, 1875, Thomas, for the use of Thomas P. Farrar and Elias S. Dennis, foreclosed the mortgage by suing out an order of seizure and sale. Plaintiff, J. S. Richardson, the transferee of Carpenter, subsequent to the service of the notice of seizure sued out this injunction to restrain the sale on the following grounds, which he urges in this court:

First — That Thomas, the mortgagee, was not a creditor of Carpenter; the latter never owed him any amount.

Second — There was no actual seizure made by the sheriff.

Third — There was no notice served on Carpenter by the sheriff to divide the land into lots of from ten to fifty acres.

The defendants charge that the 'pretended sale to Richardson by Carpenter was a simulation to evade the pursuit of his creditors, and that there was no change of possession. They pray for a dissolution of the injunction, with damages.

' The court came to the conclusion that the title set up by plaintiff was a simulation, and dissolved the injunction with five hundred dollars damages and ten per cent interest on the amount enjoined.

Plaintiff appeals.

Defendants answered, joining in the appeal, and praying for an increase of the damages. Subsequently, they moved to dismiss the appeal for the want of citation to all the appellees. After joining in the appeal the defendants could not ask a dismissal thereof for the informality stated.

The motion is therefore denied.

On the merits, wo think the judgment of the court a qua is correct.

■ It is not pretended that the notes do not evidence a valid debt duo by Carpenter, the maker. Whether he owed the nominal mortgagee or not is immaterial. A mortgage may be given to secure a future debt. D’Meza vs. Generes, 22 An. 285.

Here the mortgage to secure the notes made to the order of the maker and indorsed by him was in favor of “ Benjamin B. Thomas and any future holder or holders of said two notes or either of them.”

The moment they passed to Farrar & Dennis, the real owners, and became evidences of a valid debt owing by Carpenter, the mortgage to secure their payment attached.

As to the objection there was no actual seizure, we will remark, ii this be so, then there was no cause for tho injunction. If Richardson had a valid title, he had no cause • to complain until he was disturbed by a seizure.

But an examination of this case satisfies us that the title set up by plaintiff was a mere simulation. Carpentel- remained on tho premises, and the law presumes simulation. Ko proof was adduced to establish the verity of the salo. The pretended transfer was made after notice of seizure had been served on Carpenter. Richardson never went into possession under the protended sale.

Judgment affirmed.


author: Taliaeerro, J.

text:
    No. 6161.
    Augustus Chevallier vs. A. J. Dyas and Sheriff.
    A. J. Dyas, a judgment creditor oí W. L. Morgan & Co., caused seizure to he made of a certain house and lot as being tho property of his debtors. Chevallicr, the plaintiff in this ease, enjoined tho sale as being the owner of said property. The mercantile firm of W. L. Morgan & Co. was composed of said Morgan and Mrs. Jane Hooper, wife of Church Hooper, who was introduced in this ease as a witness on behalf of plaintiff. The judge a ano properly overruled tho objection made to his testimony on the ground that husband and wife are not allowed by law to testify for or against each other.
    Hero the controversy is between the plaintiff and the seizing creditor as to the ownership of tho property seized. W. L. Morgan <fc Co. are not parties to the controversy; they set up no title to tho, property, and have no interest in the result. Therefore tho evidence of Chureli Hoopor was admissible.
    A second bill of oxeeption was taken to the refusal of tho judgo to permit the jury to prove that their verdict was really for tlio plaintiff, andtliatthe word “ defendant” was written in tho verdict through error instead of “ plaintiff.” Tho ruling was eorroet..
    A third bill of exceptions was taken to tho admission of Chevallicr, the plaintiff, to show title to tho real estato in dispute by parol evidence. The plaintiff first established that tho public records of the parish of Rapides were destroyed by fire, and he swears that his title to this property ivas destroyed by this accident. Tho testimony was admissible under such a state of things.
    APPEAL from tlie Ninth Judicial District Court, parish of Rapides. Orsborn, J. Jury trial.

      IV. TP. Blackman and A. Cazabat, for plaintiff and appellant.

      B. A. Hunter, for defendant and appellee.
   Taliaeerro, J.

A. J. Dyas, a judgment creditor of W. L. Morgan & Co., caused seizure to bo made under execution of a house and lot in the town of Pinevillc as property of his debtors. Chovallier, the plaintiff in this injunction suit-, set himself up as the owner of tho property thus seized, and enjoined tho sale of it on that ground.

Tho defendant denied that plaintiff ever owned the property seized, and prayed a dissolution of the injunction and for one hundred and fifty dollars special damages. The jury before whom the case was tried rendered a verdict in favor of the defendant, from which the plaintiff has appealed.

The mercantile firm of W. L. Morgan & Co. was composed of W. L. Morgan and Mrs. Jane Hooper, wife of Church Hooper. In this case, the husband was introduced as a witness on behalf of the plaintiff, and objection being made and overruled, a bill of exceptions was taken, the ground being that husband and wife are not allowed by law to testify for or against each other. Here the controversy is between the plaintiff and the seizing creditor as to the ownership of the property seized. W. L. Morgan & Co. are not parties to this controversy. They set up no title to the property, and have no interest in the result. We think tho evidence was admissible. A second bill of exceptions was taken to tiro refusal of tho judge to permit the jury to prove that their verdict was really for the plaintiff, and that the word “ defendant” was written in the verdict through error instead of “jDlaintiff.” The ruling was correct. 11 La. 141; 12 An. 3.

A third bill of exceptions was taken to the admission of Chovallior, the plaintiff, to show title to the real estate in dispute by parol evidence. The plaintiff first established that tho public records of the parish of Rapides were destroyed by fire in tho year 1864, and ho swears -that his title to this property was destroyed by that accident. The testimony was admissible under that state of facts.

There are two other bills of exceptions in the record, which it is unnecessary to pass upon in the decision of this case. The evidence, we conclude, preponderates in favor of the plaintiff. He swears that he acquired title to this property in the year 1833 or 1834 from one Tally, and that he has been in possession of it ever since; that at the time of the seizure tho property was not rented; that he sold the property to C. Hooper for eight hundred dollars, of which five hundred dollars were paid, but no title was ever made, as the contract was that title should bo made when the remainder of the price was paid; that Hooper failed to pay the remainder of the price.

Labat, a witness, swore that he had known the property for thirty years, and that Ohevallier was the recognized owner of it, and that ho has been in possession of it ever since. Hooper swears that, finding himself unable to pay finally for the property, he proposed to give it back, and that Ohevallier in consideration that ho had paid two hundred' dollars, and had re-covered and weatherboarded the house, agregd that Hooper might occupy the house four years free of rent, on condition the latter would pay the taxes and keep up the general repairs on the property; and it is for this reason that the property was assessed in the name of his wife. That no title was ever made to this property either to himself or to his wife. The defendant shows some discrepancy in the testimony of the plaintiff, but on the whole he has himself produced no evidence that overcomes that brought forward by the plaintiff.

It is therefore ordered that the judgment of the district court be annulled and reversed. It is further ordered that there be judgment in favor of the plaintiff, recognizing him to bo the owner of the property in controversy as against the defendant, and that the injunction be per-. petuated, tho defendant and appellee paying costs in both courts.


author: Taliaeeíero, J.'

text:
    No. 5536.
    State of Louisiana vs. Sam Maxwell.
    The law is that in a prosecution for perjury it must appear on tlio face of the indictment that the matter alleged to ho false is material. But it is sufficient to charge generally that tho false oath was material on the trial of the issue upon which it was taken; it is not necessary to show particularly how it was material. In the information in the present instance the materiality of the evidence is charged directly, and the statements in charging the false oatli and the circumstances make its materiality plain.
    Prosecutions for offenses not capital may he by information with the consent of the court first obtained.
    The objection that tho assignment of perjury is upon a question which the State had no legal right to ask and which the witness could have refused to answer, is not well founded. The State did have a right to ask it; it was material. If the-answer would crimínale the witness lie might refuse to answer, and the court would not compel a response. Here the witness made no objection to answer.
    It is clear from the record that the particular cause ponding in which the perjury is allegod to liave been committed is sufficiently specified. There is no confusing ' or mixing up of two trials or of two false oaths.
    Tho information sots out that the oath was administered by "A. W. Moore, clerk of tho Twelfth Judicial District as aforesaid, then and thoro having sufficient authority to administer an oath to the said Sum Maxwell in that behalf.” This is sufficient.
    APPEAL from the Twelfth Judicial District Court, parish of Franklin. Taliaferro, J.

      Daniel B. Gorham, District Attorney, and A. P. Field, Attorney General, for plaintiff and appellee.

      C. H. Ratliff, for defendant and appellant.
   Taliaeeíero, J.'

The defendant appeals from a judgment sentencing" him to five years imprisonment at hard labor in tho Penitentiary for the. crime of perjury.

Coupled with a bill of exceptions are tho following pleap offered on a-’ motion in arrest of judgment:

First — That the ’materiality of the evidence upon which the offense of perjury is assigned is not alleged as the law directs in such cases.

Second — That the State can not proceed in a case of perjury by way • of information, but must prosecute by way of indictment or presentment found by a grand jury.

Third — That the assignment of perjury is upon a question which the ’State has no legal right to ask, and which the witness could have refused to answer.

Fourth — That it does not appear from the information upon what trial the assignment of perjury has reference to.

Fifth — It does not specify any particular cause pending in which the assignment of perjury is alleged to have been committed.

Sixth — The allegation in the information does not set out the charge in accordance with'the statute laws of the State in this, it docs not allege that the person who administered the oath had competent authority to administer the same.

Seventh — The information does not show the pending of any cause in which the perjury is alleged to have been committed.

That the points hero made by the defense are without weight wo think is fully shown by the Attorney General,|who answers them seriatim:

First — The law is “ that it must appear on the face of the indictment that the matter alleged to bo false was material. It is sufficient to charge generally that the false oath was material on the trial of the issue upon which it was taken; it is not necessary to show particularly how it was material.” 'Wharton’s Criminal Law, section 2263. In the information the materiality of the evidence is charged directly, and the statements in charging the false oath and the circumstances make its materiality plain.

Second — -This position is erroneous. “ Prosecutions for offenses not capital may be by information, with the consent of the court first obtained.” Revised Statutes, section 977.

Third — But the State did have a right to ask it; it was material. If the answer would criminate the witness he might refuse to answer, and the court would not compel a response. Here the witness made no objection to answer.

Fourtn — This, in substance, is the same objection that is sot up under the first head.

Fifth — It is clear from the record that the particular cause pending in which the perjury alleged to have been committed is specified. There is no confusing or mixing up of the two trials or the two false oaths.

Sixth — The information sets out that the oath was administered by “ A. W. Moore, clerk of the Twelfth Judicial District, as aforesaid, then and there having sufficient authority to administer an oath to the said Sam Maxwell in that behalf.”

Seventh — This reason for arrest of judgment is a repetition of the first, and has already been answered.

It is ordered that the judgment appealed from be affirmed.


author: MoegaN, J.

text:
    No. 6189.
    M. Berwin vs. B. Weiss et al.
    The Question in this ease is: Assuming that the wife of Woiss ever had a mortgage on her husband’s property, did the mortgage cease absolutely to exist by the failure to inscribe it prior to the first of January, 1870, or was it always alive, but only not operative until it was inscribed?
    The mortgage must not be confounded with the inscription. The mortgage is the right which is granted to the creditor over the property of the debtor for the security of his debt. The inscription thereof is the notice which is roallired in order to preserve the rights of the mortgagee against third parties. As regards 'its effect on the property of the debtor, there is no difference between a conventional and a legal mortgage. It has always been necessary to record a conventional mortgage; but until the adoption of the constitution of 1808 it was not necessary to record a legal mortgage.
    'The article 123 of the constitution recognized the existence of tacit mortgages, and did not prohibit them in the future. It designated how their existence, to affect third persons, should.be made to appear. It also provided when those tacit mortgages which were in existence at the time of its adoption should cease to affect third parties, unless the formalities to show their existence had been complied with.
    ‘Tacit mortgages must therefore ho considered in the same light that conventional mortgages are, and are to be governed by the same rales, under those rules the mortgage only took effect from and after its inscription. But from that time it was superior to all mortgages which came after it. In this ease the mortgage of the wife was recorded before the plaintiff’s mortgage. It, therefore, has precedence over it.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Orsborn, J. Jury trial.

      B. J. Bowman, for plaintiff and appellant.

      M. Bi/an, W. F. Blackman, and B. P. Hunter, curator ad hoc, for Mrs. Mary Weiss, defendant and appellee.

      W. W. Whittington, curator ad hoc, for Benjamin Weiss, defendant and appellee.
   MoegaN, J.

Plaintiff seeks to recover from the defendant, B. Weiss, four thousand dollars, and to cause certain property to be subjected to the mortgage which was given to secure the debt.

He also seeks to have annulled as simulated a judgment rendered in favor of Mrs. Weiss, the co-defendant, against her husband, in which she was recognized as his creditor for a considerable sum, and under which judgment the property now sought to be made liable for the plaintiff’s claim was sold and purchased by her.

The interest in the case lies between the plaintiff and Mrs. Weiss.

On the thirtieth of September, 1870, B. Weiss drew up a statement, which he swore to, in which he acknowledged that in the year 1866 he married Miss Mary Myer, in Philadelphia; that at the time of his marriage he was a resident of the parish of Rapides ; that since his marriage he had received, on account of his wife, in cash and available assets, the sum of three thousand dollars, being paraphernal funds belonging to her and derived from her inheritance as one of the heirs of her deceased father, which amount he had used in his mercantile business. He thereupon acknowledged himself indebted unto his wife in the sum of three thousand dollars, and caused his declaration to be recorded in the office of the recorder of mortgages for the parish of Rapides on the date of the acknowledgment.

Plaintiff contends that this claim, if it ever had any legal existence (which he denies), is not secured -by mortgage because it was not recorded prior to the first of January, 1870, and he invokes the one hundred and twenty-third article of the constitution, which provides that “ the General Assembly shall provide for the protection of the rights of married women to their dotal and paraphernal property, and for the registration of the same; but no mortgage or privilege shall hereafter affect third parties unless recorded in the parish where the property to be affected is situated. The tacit mortgages and privileges now existing in this State shall cease, to have effect against third persons after the first day of January, 1870, unless duly recorded. The General Assembly shall provide by law for the registration of all mortgages and privileges.”

The acknowledgment of Weiss’s indebtedness to his wife was not recorded until the thirtieth of September, 1870. Therefore,” plaintiff says, “ Mrs. Weiss’s mortgage, if she ever had any, ceased to have any effect against third persons before it was recorded, and was consequently extinct.”

Plaintiffs mortgage was recorded after the thirtieth of September, 1870.

Mrs. Weiss admits that the failure of her husband to record her mortgage prior to the first of January, 1870, was fatal so far as preserving the rank of the mortgage against third persons who had acquired rights to or on the property of her husband, but she says that her mortgage did not, from that fact, cease to exist. She admits that it lost its rank, but that it took effect on his property from the date of its inscription.

The question, therefore, which we have to decide is this: Assuming that the wife ever had a mortghge on her husband’s property, did the mortgage cease absolutely to exist by the failure to inscribe it prior to the first of January, 1870, or was it always alive, but only not operative until it was inscribed ?'

The mortgage must not be confounded with the inscription.' The mortgage is the right which is granted to the creditor over the property of the debtor for the security of his debt. The inscription thereof is the notice which is required in order to preserve'the rights of the mortgagee against third parties.

As regards its effect upon the property of the debtor, there is no difference between a conventional and a legal mortgage. It has always been necessary to record a conventional mortgage, but until the adoption of the constitution of 11368 it was not necessary to record a legal mortgage.

The article 123 of the constitution recognized the existence of tacit mortgages, and did not prohibit them in the future. It designated how their existence, to affect third persons, should be made to appear. It •also provided when those tacit mortgages which were in existence at the time of its adoption should cease to affect third parties, unless the formalities required to show their existence had been complied with. They, must, therefore, be considered in the same light that conventional mort.gages are, and are to be governed by the same rules. Under these rules the mortgage only took effect from and after its inscription. But from that time it was superior to all mortgages which came after it. In this case the mortgage of the wife was recorded before the plaintiff’s mortgage. It, therefore, has precedence over it.

The next question is whether the wife’s mortgage was a reality, or was it a mere simulation ?

The testimony, in our opinion, shows that Weiss did receive some three thousand dollars from his wife, which belonged to her, and for the restoration of which she was entitled to judgment. And this evidence is to be found in this suit, and independent of the testimony taken in the proceedings under which she had her judgment.

This opinion renders it unnecessary to consider the several bills of ■exception in the record.

Judgment affirmed.

Rehearing refused.


author: Howell, J.

text:
    No. 6149.
    J. W. Hickman et al. vs. C. H. Willett, Sheriff, et al.
    Mary A. Hickman, widow oí W. P. Hickman, executed three notes and a mortgage in favor of John L. Lee & Co., eommission'merehants. Subseuuontly, Samuel Mitchell and A. B. Hensliaw sued out executory process on the notes aforesaid, which had been transferred to them, and the mortgaged property was advertised for sale.
    The plaintiffs, who allego themselves to be the heirs of said william P. Hiekman, deceased, enjoined the sale on the allegations that the said property was purchased for them by the executor of their father out of and with his funds, and the title thereto was taken in the name of their mother, Mary A. Hickman, as their tutrix, and that the plaintiffs in the executory proceedings are not the legal owners of the said notes, because the firm of Lee & Co. were declared bankrupts within three months of the transfer of said notes.
    'The assignees of Lee A Co. intervened, claiming the notes and resisting the sale.
    The defendants in injunction answered by general denial and the averment that the said property belonged to Mrs. Hickman by inheritance from her father; and to the intervention they interposed a plea to the jurisdiction of the court.
    ’¡The evidence is not sufficient to support the claim of the plaintiffs in injunction. In regard to the intervention, it was properly dismissed .by the court below, as it presented an issue belonging to another tribunal.
    APPEAL from the Ninth Judicial District Court, parish of Grant. Orsborn, J.

      J. G, White and T. G. Manning, for plaintiffs and appel-lees. Manning, for intervenors and appellants.

      R. A. Hunter and R. J" Boioman, for defendants and appellants.
   Howell, J.

On the twenty-sixth of December, 1867, Mary A. HickiflSif,-widow of ¥m. P. Hickman, executed three notes and a mortgage in favor of John L. Lee & Co., commission merchants in New Orleans. In November, 1873, Samuel Mitchell and A. B. Henshaw each sued out execu-tory process on the notes, and the mortgaged.property was .advertised for sale in January, 1874. The plaintiffs, who are the heirs of said Wm. P. Hickman, deceased, enjoined the sale on the allegations that the saidi property was purchased for them by the executor of their father out off and with his funds, and the title thereto was taken in the name of their mother, Mary A. Hickman, as their tutrix, and that the plaintiffs in the executory proceedings are not the legal owners of the said notes, because the firm of J. L. Leo & Co. were declared bankrupts within three months of the transfer of said notes-.

The assignees of J. L. Lee & Co. intervened, claiming the notes and resisting the sale.

The defendants in injunction answered by general denial and the averment that the said property belonged to Mrs. Hickman by inheritance from her father, and to the intervention they interposed a plea to the jurisdiction of the court. ' (

Judgment was rendered perpetuating the injunction and dismissing the intervention, from which the defendants and intervenors appealed.

As we think the evidence does not make out the case of the plaintiffs,, upon whom the burden to do so rested, it is unnecessary to pass on the bills of exception to its admissibility. No one of the witnesses testifies to having over seen the alleged act of purchase. They simply speak of the common understanding in the family and among some of the neighbors that the property in question was bought by the executor, who is dead,, for the minors, with the funds of the testator. The evidence is too vague and general to establish title to real property, and especially to overcome-the effect of the notarial act of mortgage by Mrs. Hickman, which was accepted for the mortgager by a lawyer of high standing, and it is not easily presumable that he would have accepted for his clients a mortgage from one not an owner of the property mortgaged.

We think the plaintiffs have failed to sustain their injunction, and that, the intervention was properly dismissed, as it presented an issue belonging to another tribunal.

■ It is therefore ordered that the judgment dismissing the intervention be affirmed, and that the judgment perpetuating the injunction be reversed and the injunction be,dissolved, with ten per cent on the amounts enjoined, plaintiffs to pay costs of the injunction suit in both courts. Ixr-torvenors to pay costs of their intervention in both courts.

Rehearing refused.


author: Wyly, J. Morgan, J. Wyly, J.,

text:
    No. 5003.
    Succession of Milton Taylor. On Petition of Thomas J. Throop, Administrator, and of Mason County Court, of Mason County, Kentucky, and on Opposition to Accounts of Executor, P. B. Fouke, Public Administrator, (Consolidated).
    In tlie matter of this succession, the judgment putting tho heirs in possession was' not the result of fraud. It was done openly and contradictorily with the proper parties.
    The heirs having been put in possession, the Second District Court was without jurisdiction over the matter in controversy in this proceeding, under the foregoing conclusions the plaintiffs have no interest to contest the account filed by the administrator.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      B. B. Forman, for Throop and Macon County Court, plaintiffs and opponents, appellants.

      W. W Hancllin and B. C. Labatt, for defendants and opponents, appellees.

      Haijs & New and Frnest Morel, for P. B. Eouke, executor, public administrator, appellee.
   Wyly, J.

Milton Taylor died leaving a succession in Mason county, Kentucky, the place of his domicile, a succession in Hamilton county, Ohio, and a succession in this State. On the thirteenth of March, 1870, John I. Rickey, the dative executor from Hamilton county, Ohio, caused the will of the deceased to be probated in the Third District Court, and applied to be appointed dative executor thereof in this State. An opposition was filed to his appointment by P. B. Eouke, public administrator, who claimed the office himself. The court appointed him, and, on appeal, the action of the court below was affirmed. See tho case reported in 23 An. 22.

On the twenty-fifth of July, 1871, Mary Jane Taylor, wife of Milton Rodgers, was recognized as sole heir of Milton Taylor, deceased, and was ordered to be put in possession of all the property and effects of the succession, “ on the said Mary Jane Taylor Rodgers giving bond with. good and solvent security in the amount delivered to her by said public administrator, conditioned as the law provides in such cases, reserving: to any heir at law his right to set up any claim he may have against said succession.”

In the application of Mrs. Rodgers, and in this order, the will of Milton Taylor, which the court had ordered executed, was entirely ignored— no reference whatever was made to it.

On the third of August, 1871, Phoebe Ann Duneanson and John James-Taylor, claiming also to be the children of Milton Taylor, prayed to be recognized as heirs and put in possession of two-thirds of the property of said succession. Their application was opposed by Mary Jane Rodgers. The controversy was finally settled in favor of said applicants,, this court holding that “ the evidence which establishes the status of the appellee as the child, of the deceased, shows with equal clearness that the petitioners herein are also his children.” See the case reported in 24 An. 326, decided in May, 1872.

On the twelfth of March, 1872, Thomas J. Throop, “ as administrator with the will annexed,” representing the estate of the deceased, by appointment of the probate court of Mason county, Kentucky, and as attorney in fact for Mason County Court, one of the legatees under the will, brought this suit against the public administrator, appointed dative executor of the will, and against Mary Jane Rodgers, Phoebe Ann Pun-•eanson, and John James Taylor, claiming to be heirs at law of the deceased, and he prays that the decree of the thirteenth of March, 1870, -■ordering the execution of Milton Taylor’s will, be carried into effect; tliat the judgment-recognizing said pretended heirs at law, and ordering them to be put in possession of the succession, be set aside and annulled; that ■the public administrator be'dismissed from the office.of dative executor for failing to file annual accounts, and for failing to deposit the funds of the succession in bank according to law; that he be condemned to pay-ten per cent interest and twenty per cent damages on the amount of the funds not so dexoosited; that petitioner be recognized .and put in possession of the succession; and if from any cause this relief' bo refused, that petitioner have judgment against the succession for the amount of the 'legacy to the Mason County Court, represented herein by petitioner.

The court below dismissed the suit on the peremptory exceptions filed by the defendants, and, on appeal, its judgment was reversed and the case remanded for trial. See the decision reported in 25 An. 446. The grounds for the action, as stated in the petition, are: The petitioner is administrator “ with the will annexed ” of the succession at the domicile •of the deceased in Kentucky, and that the succession in this State is an'■cillary to that, and by the laws of Kentucky his power as administrator is the same as that of executor with seizin; that the'judgments he seeks 'to annul were obtained by fraud and false testimony; that these pretended heirs were adulterous bastards of the deceased, and that their mother was a slave, and by the laws of Kentucky and Louisiana they are incapable of inheriting from the deceased; that the property in Kentucky is insufficient to pay the special legacies in the will, especially the legacy due the Mason County Court (which is capable of inheriting by the laws of Kentucky); that the public administrator has failed to account annually, according to law, and he has failed to deposit the funds of the succession in bank.

After the case was remanded, Mary Jane Rodgers, Phoebe Ann Dun-■eanson, and John James Taylor answered, and after denying generally •and specially the allegations of plaintiff, they “ admit that they are three-fourths white and one-fourth colored, as acknowledged in 1869 by their father, Milton Taylor, in the memorándum, to his will; they admit they are the natural children, duly acknowledged, of Milton Taylor, and that .their mother was originally purchased by their father, but was treated kindly by him as the mother of his children born in his house; they admit that they were bom in Kentucky, but were educated by their father and brought up in Ohio, where, they resided the greater part df their lives and where they now reside, and where their father, Milton Taylor, made his will and died, having resided there, much of. his time before his death. Respondents deny that their father had any other heirs, and they allege that in his will of 1869 he provided liberally for them and their children, but that those dispositions are void in Louisiana, and in said will of 1869 and the memorandum thereto, their said father duly acknowledged respondents as his natural children, besides having all their lives previously to 1869 acknowledged them in his letters, acts, and all kinds of private writings. Respondents aver that the property of their father, Milton Taylor, in Louisiana, is real property, and that the clause, in so far as it disposes of real property in favor of persons whom plaintiff claims to represent, is null and void, for this, to wit:

First — That the bequest in trust to the Mason County Court is contrary to the law of Louisiana prohibiting substitutions and ftclei com-missa.

Second — That the judges of the county court have no interest proper in the bequest, and the cestui que trust, or the real beneficiaries, are not designated or described with sufficient certainty.

Third — The language of the bequest is imperative, that the commissioners shall be appointed and the objects of the charity designated (which is even not alleged to have been done), and therefore the trust is prohibited.

Fourth — Not being residuary legatees, the justices of the county court can not take the legacy if it be impossible to execute the trust upon real property in Louisiana.

Wherefore respondents pray that the order, which was ex parte as to them, ordering the execution of the will of Milton Taylor, so far as it relates to real property, or its proceeds, in Louisiana, be annulled; that respondents be recognized as natural children of Milton Taylor, duly acknowledged, and put in possession as heirs as against the plaintiff, according to the decrees heretofore rendered in the promises; that plaintiffs demand be rejected with costs, etc. ■ •

After the case had been regularly submitted on the issues stated and ■on the several oppositions to the two accounts filed by the public administrator, which will be more fully noted hereafter, the court dismissed, for want of jurisdiction, the demand of Thomas J. Throop, “administrator with the will annexed,” etc., on the ground that the orders for putting the heirs into possession, sought to be annulled, divested the court of jurisdiction; it also amended the accounts and homologated them.

From this judgment Thomas J. Throop, administrator, etc., appealed.

The court committed a manifest error in dismissing for want of jurisdiction the demand of Throop, the administrator “with the will annexed,” whose functions are the same as a dative executor. He represents the succession at the domicile of the deceased, to which the succession here is ancillary. He has a right, after the debts of the succession here are settled, to demand of the public administrator, who is. dative executor, the residue of the funds of the estate, in order that the will may be carried into effect.

In Gravillon vs. Richards, executor, 13 La. 391, it was held: “The power of our courts to order the remission of funds belonging to a foreign succession opened here to the representatives and creditors authorized to receive them by the courts of the domicile of the deceased, is'undoubted; every motive of public policy requires such transmission for distribution.”

The orders recognizing as heirs at law the illegitimate colored children 'of. Milton Taylor residing in Ohio, and directing that they be put in possession, are revisable in an action of nullity for fraud by the court which, rendered them.

The will of Milton Taylor remains unrevoked, and the public administrator, as dative executor, remains in possession of the succession. In obtaining these orders these pretended.heirs entirely ignored the will of Milton Taylor, treating the succession as intestate.

We are satisfied from the evidence that they committed a fraud in withholding from the court, when attempting to prove their heirship, the fact that they were the illegitimate children of Milton Taylor by a colored woman who was his slave at the time of their birth, and who died his slave, and therefore, by the laws of Kentucky, the domicile of their origin, they were incapable of inheriting from their father.

The orders, therefore, obtained by Mary Jane Rodgers, Phoebe Ann Duncanson, and John James Taylor must be annulled. These persons are, therefore, without interest to contest with plaintiff, Thomas J. Throop, administrator, etc., on the question raised in their answer, whether the clause of the will conferring a special legacy on Mason County Court contains a prohibited substitution in the meaning of article 1520 of the Revised Code. ■ ■

If, however, the question were raised and answered in the affirmative, it would not defeat the demand of the plaintiff, because the various other clauses of the will remain, in force, not having been attacked, and as administrator “with the will annexed” at the domicile of the deceased, the plaintiff, charged with the execution of the will, is entitled to all the funds of the succession here remaining after payment of the debts. 13'. La. 296; 6 An. 161.

Looking at the accounts filed by the public administrator, and pending-■on the oppositions herein, we find that the proceeds of the sales of the.succession property exceed in the aggregate twenty-one thousand dollars, and that the only debt' of the deceased in this State was a mortgage > claim bearing on the propeity amounting in principal and interest to. @5773. Yet this public administrator, in utter disregard of his duty, and,, as we find, fraudulently, swells his accounts with false charges, exorbitant', court charges, and numerous claims not owing by the succession, and by these unjust and exorbitant claims, added to the mortgaged debt of @5773 actually owing by the deceased, he increases the debit side of his-accounts and reduces the funds in his hands to a balance only of @1058 25, which he acknowledges he owes the succession.

For the fraud which is manifest in the provisional account, the homolo-gation thereof in the judgment of the fifteenth of September, 1871, must, be annulled, as prayed for.

After examining the evidence bearing on the items of the two accounts,, we feel constrained to strike therefrom all the items debited, except the following, those rejected either not being proved or evidently not owing by the succession. Some are correct in part, and will be reduced:

Item No. 1 Andrew Hero,-notary. @1 00

Item No. 2 Clerk’s costs.. ’. 50 00-

Item No. 3 Hays & New, attorneys. 500 00-

Item No. 4 W. B. Morris, insurance. 40 65

Item No. 7 Lewis et al., appraisers, reduced to. 8 00-

Item No. 8 Deslonde’s account, reduced to. 190 50-

Item No. 13 Notice to creditors. 3 00-

Item No. 14 Attorney for absent heirs, reduced to. 100 00

Item No. 17 Mortgage debt.5,773 00'

Item No. 22 Administrator’s commissions.1,000 00

Item No. 23 Tracey, clerk’s fees. 101 40-

Item No. 24 Sheriff’s fees.-... 8 00-

Item No. 27 J. P. Ep ply’s account. 209 55.

Item No. 30 Balance of administrator’s commissions. 57 64

Item No. 32 E. Morel, attorney’s fee. 250 00

Item No. 34 Christy, notary. 10 00

Item No. 35 Deslonde’s account, reduced to.¡... 60 00

Item No. 36 Reserved for costs. 75 00-

Item No. 43 A. J. Ball. 300 00

Item No. 44 James O’Hara. 250 00

Item No. 45 John G-. Carlisle. 250 00

Item No. 46 Thornton E. Marshall. 150 00

As tlie public administrator failed to deposit in bank the funds of the estate as required by section seven of the Revised Statutes, he must be held liable, as prayed for, to pay twenty per cent per annum interest on §13,484, the amount of funds remaining in his hands after filing the provisional account, from August 21,1871.

It is therefore ordered that the judgment appealed .from be annulled, and it is decreed that the orders herein recognizing as heirs Mary Jane Rodgers, Phoebe Ann Duncanson, and John James Taylor, and ordering them to bo put in possession of the succession of Milton Taylor be annulled; that the judgment homologating the provisional account on the fifteenth of September, 1871, be annulled; that all the items on the debit side of the two accounts filed herein be rejected, except items numbers one, two, three, four, seven, eight, thirteen, fourteen, seventeen, twenty-two, twenty-three, twenty-four, twenty-seven, thirty, thirty-two, thirty-four, thirty-five, thirty-six, forty-three, forty-four, forty-five, forty-six; that these items for the respective amounts thereof as stated in this opinion, form and constitute the debit sides of said accounts.-the credit sides remaining undisturbed, and as thus constituted, that said accounts be homologated, and the public administrator is hereby ordered to pay each item thereof to the creditors therein named; it is further ordered that Thomas J. Throop, administrator “with the will annexed,” etc., plaintiff herein, recover of the defendant, P. B. Fouko, public administrator, dative executor of the succession of Milton Taylor, all the funds belonging to said succession remaining after paying the items of said accounts herein homologated; also, that he recover judgment against him for twenty per cent per annum interest on §13,484 from the twenty-first clay of August, 1871.

It is further ordered that the succession of Milton Taylor pay costs of the court below and appellees pay costs of appeal.

On REHEARING.

Morgan, J.

A further examination of this case satisfies us—

First — That the judgment putting the heirs in possession was not the result of fraud, but that is was done openly and contradictorily with the proper parties;

Second — That the heirs having been put in possession, the Second District Court was without jurisdiction over the matters in controversy in this proceeding; and

Third — That under the foregoing conclusions the plaintiffs have no interest to contest the account filed by the administrator.

It is therefore ordered, adjudged, and decreed that the judgment heretofore rendered in this case be avoided, annulled, and reversed; and it is now ordered, adjudged, and decreed that the judgment of the district court be affirmed with costs.

Wyly, J.,

dissenting. In this controversy between the illegitimate colored children of Milton Taylor and Thomas J. Throop, administrator “ with the will annexed,” of Mason county, Kentucky, the succession of the domicile of the deceased, in regard to the funds of the succession of Milton Taylor in the hands of the public administrator, P. B. Eouke, who is also a party to this litigation, and who is being proceeded against to account for said funds, several important questions arise:

First — Have these illegitimate colored children any right to interfere in this succession and contest the validity of the will of their father, Milton Taylor, and resist the demand of the administrator “ with the will annexed,” of the succession of the domicile of the deceased, against the public administrator, P. B. Fouke, administering the ancillary succession here, to recover the residue of the funds of said succession after paying the debts of the deceased ?

These children were the offspring of Milton Taylor by his colored concubine, who lived and died a slave in Mason county, Kentucky.

By the laws'of Kentucky, the domicile of their origin, and by the laws of this State, where they do not reside, but where they set up the right of heirs, these children are incapable of inheriting the property of Milton Taylor; and consequently they have no right to attack the will of Milton Taylor or any clause thereof, and they are absolutely without standing in court to raise any controversy in regard to said succession.

That there may be no mistake in regard to the incapacity of these pretended heirs to inherit by the laws of Kentucky, the domicile of their origin, I propose to copy some of the evidence in the record.

The witness, R. H. Stanton, testifies: “I practiced law in the circuit court and Court of Appeals of Kentucky from 1839 until 1868, when I became circuit judge of the Fourteenth Judicial District of Kentucky, which position I now occupy. * * * An illegitimate child has no such heritable blood as to enable it to inherit from its father under the laws of Kentucky as they now exist or ever did exist. A child of color, that is, of black blood or a negro, can not now and never could, under the laws of Kentucky, inherit from its white father. An illegitimate child, though of pure white blood, could not inherit from its father under any circumstances, unless authorized by an act of the Legislature, which is sometimes granted. A slave child born of a slave mother could not inherit from its free white father. A child born in slavery of a slave mother can not, and never could, by the laws of Kentucky, inherit from its white father.” This testimony in regard to the rights of illegitimate colored children by the laws of Kentucky is corroborated by several witnesses, especially by H. Taylor, an attorney-at-law, of Mason county, Kentucky.

In their pleadings these pretended heirs admit that they were born of a colored woman, who was the slave of their father, Milton Taylor. Furthermore, the testimony of Washington Evans, who was the son of this colored woman by a colored man before she became the concubine 'of Milton Taylor, is in the record. He testifies as follows: “ I would ¡state that at the time Milton Taylor bought my mother she had two ■children, myself and brother; at the time he bought my mother he bought my father, whom he sold down the river shortly after. My mother then took up with another .black man, by whom she had two children, both of whom died in. infancy. Mr. Taylor drove this black man away, and then he had by my mother eight children, all of whom are dead, excepting John James, Mary Jane, and Phoebe. I will state she (the mother of these children) was the slave of Milton Taylor from the time he bought her up to the time of her death. * * * I would state that I have stated all the facts, being myself a slave of Milton Taylor all the time until the emancipation proclamation, when I was set free. I know that their mother was a slave, and they were born slaves, and were incapable of inheriting from these causes.”

The witness Stanton testified on cross-examination that “ it would have been impossible for a legal marriage to have taken place between Milton Taylor and his slave woman, or any other negro woman, either in Ohio or Kentucky, as such marriages are forbidden in both States as repugnant to natural as well as municipal law.”

Here these illegitimate children, who were the slaves of Milton-Taylor, and whose mother, a colored woman, was prohibited by the laws of Kentucky and of Ohio from marrying Milton Taylor or any other white man, come to Louisiana and set up rights as heirs of Milton Taylor which they do not possess in Kentucky, their domicile of origin, or at their own domicile in Ohio, and rights which would not bo accorded to them were they citizens of this State.

We are referred, however, to the cases of Cabellero and Cornelia Hart, 24 An. 573, and 26 An. 90. In those eases there was a marriage, and a majority of the court held that the marriage and acknowledgment were sufficient to legitimate the children.

Here, however, there was no attempt to legitimate by marriage and acknowledgment. The parties were prohibited from marrying, the colored concubine of Taylor having died during the existence of slavery.

It is urged that these pretended heirs are the natural children of Milton Taylor, and therefore they inherit his property. They have never been acknowledged by him in the manner required by law.

“ The acknowledgment of an illegitimate child shall be made by a declaration before a notary public, in the presence of two witnesses, by the father and toother, or either of them, whenever it shall not have been made ih the registering of the birth and baptism of such child.” Bevised Oode, 203.

“ Such acknowledgment shall not be made in favor of children whose parents were incapable of contracting marriage at the time of conception.” Bevised Code, 201.

Considering the textual provisions of the Code and the numerous adjudications of this court, the conclusion is inevitable that John James Taylor, Mary Jane Bodgers, and Phcebe Ann Duncanson, the illegitimate children of Milton Taylor by his 'colored concubine, are incapable of inheriting the property of their father, and they are without an interest in this controversy.

Second — Assuming, however, that they were duly acknowledged natural children, and there was no incapacity of marriage of their parents at the time of their conception, these pretended heirs can not defeat the demand of tho dative executor of the domicile of the deceased to recover from the public administrator representing this ancillary succession tho residuo of the funds remaining in his hands after paying the debts of the deceased; because, if the clause of the will in regard to the legacy to Mason County Court be void as alleged, still the other dispositions of tho will, whoso validity has not been questioned, should bo executed; and the dative executor of the domicile of the deceased is entitled to t,he funds of this ancillary succession in order to execute the valid dispositions of the will.

Third — -These illegitimate children contend that they have been put in possession of the succession by order of the probate court, and therefore the court below was without jurisdiction.

Is this so ? The record shows that the funds in controversy have never passed from tho hands of P. B. Fouke, public administrator, who was appointed dative executor of the will of Milton Taylor. In his capacity of dative executor Fouke holds tho funds of this ancillary succession, and the controversy is who shall recover them, Throop, the administrator “ with the will annexed,” whose position is dative executor at the domicile of tho deceased, or the illegitimate children of Milton Taylor ?

Shall the dative executor here give up tho funds in his hands after paying the debts to the dative executor of the principal succession, in order that the valid dispositions of the will shall be executed, or shall ho hand them over to tho illegitimate children of Milton Taylor ? That is the question, and tho important question, in this case. Until the dativo executor turns over the funds to these pretended heirs they can not be said to have been put in possession of said funds; and while these funds remain in possession of the dative executor the court which appointed him has jurisdiction. Indeed, these pretended heirs admit the jurisdiction of the court, because in this litigation they are also suing the public administrator, who is dative executor for these funds belonging to the succession of Milton Taylor. Both parties are suing Fouke, the dative executor, for the funds. If the court has no jurisdiction of the demand of one, it has not of the other. It matters not what improvident orders may have been issued on the ex parle application of these illegitimate children, those .orders, until executed, can be reviewed by an action of-nullity, as is now attempted, as well as they could be by an appeal. In claiming to be put in possession, these illegitimate children expressly based their claim on the ground that they are natural children duly acknowledged, and the order of the judge directs them to be put in possession on giving bond as required by law, which they have not done.

Article 927 of the Revised Codo declares that 11 if the succession bo of the natural father, the natural children by him acknowledged can not be put in possession of the succession which they claim until a faithful inventory has been made of the same by a notary appointed for that purpose by the judge, in the presence of a p>erson appointed to defend the interest of the absent heirs of the deceased, and on giving bond and sufficient security as prescribed in the following article:”

Article 928 — “ The security to be furnished by natural children put in possession of the effects of their father shall be tiuo-thirds of the amount of the inventory made thereof. This security shall be given to insure the restitution of such portion of these effects which they may be adjudged to restore in case the legitimate heirs of the father should present themselves within throe years from the putting into possession, after which time this security shall be discharged.”

Here the testamentary heirs of Milton Taylor, represented by Throop, the dative executor of the succession of the domicile of the deceased, sue to recover from the ancillary succession the funds remaining after the payment of the debts, and they sue to annul the improvident orders directing the illegitimate children to be put in possession. Can it be said that these improvident orders have been executed and the court has lost jurisdiction, when these illegitimate children have not given bond for two-thirds of the inventoried value of the succession as required by these orders and as imperatively demanded by the articles of the Code to which I have referred ?

By the articles quoted natural children are prohibited from being put in possession of the effects of their father until they have given bond for two-thirds of the inventoried value thereof; and “this security shall bo given to insure the restitution of such portion of these effects which tliey may be adjudged to restore in case the legitimate heirs of the father should present themselves,” etc.

They “ can not be put in possession of the succession which they claim until a faithful inventory has been made of the same by a notary appointed for that purpose by tho judge, in tho presence of a person appointed to defend the absent heirs of tho deceased.” * * * The provisions of the law quoted are mandatory. They have not been complied with; and these illegitimate children have not been put in possession, nor has the probate court lost jurisdiction of tho succession.

I, therefore, dissent in this case.


author: Ll'delikg, 0. J. Wyly, J.,

text:
    No. 6221.
    Robert O. Hébert et al. vs. John H. Jackson, Sheriff, et al.
    General Hebert, by leaving- tho Federal lines and joining tho enemies oi the united States, forfeited his trust as executor, and the office became vacant. He was never re-appointed to the office after the war, and ho had no authority to bind or to represent the succession of tho hoirs after tho abandonment of the trust.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Dewing, J.

      George Wades, B. N. Sims, and A. & JE. B. Talbot, for plaintiffs and appellees.

      Samuel Matthews and J. Hamilton Mils, for defendants aud appellants.
   Ll'delikg, 0. J.

In 1861 Mrs. Vaughn died. She left a will, in which Paul O. Hébert was appointed testamentary executor. The will was duly probated, and Paul O. Hébert qualified as executor early in the year 1861. After this, Paul O. Hébert joined the Confederate army, and during the remainder of tho rebellion, in tho capacity of an officer in said army, he bore arms against his country.

In the Succession of Poindexter, reported in 19 An. 22, and in the case of Vogel, reported in 20 An. 81, it was decided that “ by refusing to take the oath of allegiance, and going beyond the jurisdiction of the proper-authority, (the executor) became functus officio.”

General Hebert by leaving the Federal lines and joining the enemies-, of the United States forfeited his trust, and the office of executor was, vacant. He was never re-appointed to the office after the war, and he-had no authority to bind Or to represent the succession of the heirs-after the abandonment of his trust.

In April, 1868, Wade H. Gilbert instituted suit against Paul O. Hébert, as testamentary executor of Mrs, Vaughn’s estate, for wages for services rendered to said succession, under a contract with said Hébert as executor; and in 1869 Paul O. Hébert, as executor, confessed judgment. In 1874 execution was issued under this judgment, and the heirs of Mrs. Vaughn enjoined the sale on tho ground, among others, that the judgment is an absolute nullity, because P. O. Hébert, who alone was cited in that suit, was functus officio, and the succession and heirs were not parties to the suit. The objection is well founded, for the reason above stated. A judgment rendered, when the defendants have neither been cited nor made an appearance in the suit, is an absolute nullity. The article 149 of the constitution has no application to the suit. The judgment attacked in this case was rendered after the adoption of the constitution, and the provisions of that article can not by any stretch of construction be made ta revive a trust abandoned.

It is therefore ordered that the judgment of the lower court perpetuating the injunction and declaring the judgment in the suit of Wade H. Gilbert vs. Paul O. Hébert, executor, null and void, bo affirmed with costs. ,

Wyly, J.,

dissenting. In April, 1861, the will of Mrs. Harriot Vaughn was probated in the parish of Iberville, and Paul O. Hébert was confirmed and qualified as testamentary executor.

By the terms of the will ho had seizin of all the property of the succession, consisting principally of a plantation known as “ White Gastle plantation,” and the slaves and movables thereon.

The succession has never been settled, and said executor to this day holds possession, administering the same as 'testamentary executor. He has been recognized by the court, by the heirs, and by the creditors in numerous suits that have been instituted and conducted contradictorily with him as testamentary executor.

Prior to the death of Mrs. Vaughn, Wade H. Gilbert was employed as overseer of the “ White Castle plantation,” and he was retained in said employment by Hébert when lie became testamentary executor in April, 1861. . .

Gilbert remained in charge of said plantation as overseer until January, 1867. He subsequently died, and his widow and natural tutrix of their minor children sued for his salary during the term of said employment, and in 1869 recovered judgment on the confession of Paul O. Hebert, testamentary executor, for §19,923 66. The widow of Wade H. Gilbert and natural tutrix of their minor children instituted proceedings under articles 990, 991, and 992 of the Code of Practice to enforce the payment of said judgment, and on the thirtieth May, 1874, the parish court made the rule absolute, and ordered the sale of property to pay said judgment. The heirs of Mrs. Vaughn filed oppositions, which were dismissed, and on appeal the judgment of the parish court was affirmed. Plaintiffs, who are. the heirs of Mrs. Vaughn, now bring this suit in the district court to annul the judgment which the widow and heirs of Gilbert obtained against Paul 0. Hébert, testamentary executor, in 1869, on various grounds set out in their petition, and they obtained an injunction :restraining- the sale of property to pay said judgment pursuant to an •order of the parish court rendered contradictorily with all parties in Interest — the testamentary executor and the heirs.

As the action to revise the judgment of 1869 is barred by the pre-iscription pleaded, it is unnecessary to state the grounds of nullity set ■out in the petition, except the averment that said judgment was an absolute nullity, because Hebert was not testamentary executor in 1869; ibeeause in August, 1861, subsequent to his appointment as testamentary ■executor, he joined the rebel army and served as an officer therein ■during the war, whereby he became functus officio, and could not there■after act as testamentary executor or in any manner represent the succession of Mrs. Yaughn. This is a question which, in my opinion, the district court was without jurisdiction to entertain; and the judgment of the probate court and the letters of executorship whereby Paul O. Hebert is now and has since 1861 been administering said succession of Mrs Yaughn, can not be questioned collaterally. The parish court having jurisdiction of the succession alone can determine, in the first instance, '.the right of Hebert to administer said succession.

While Hébert holds letters of executorship, emanating from the pro-fbate court, and while he is recognized by that court, as he has been from April, 1861, to'the present day, in all matters and litigations relating to -the succession of Mrs. Yaughn, and -while he remains in possession of tsaid succession in the capacity of testamentary executor by authority of •the probate court, the district court has no jurisdiction to question the .authority of Hébert to act as executor, much less to decide that from ;any cause his appointment has ceased to be valid, and he no longer has .authority to represent said succession.

How can the district court, which can not appoint a curator, an administrator, or an executor, and which is wholly without jurisdiction in probate matters (the appointment or authority of an executor being purely-.a probate matter), undertake to decide upon the authority of Paul 0. .Hebert to act as testamentary executor of the will of Mrs. Yaughn ?

If the district court has no jurisdiction to entertain a suit to destitute Paul O. Hebert of the office of testamentary executor, because it is a ¡probate matter confided by the constitution to the parish court, where .does it get jurisdiction to attack collaterally the 'judgment appointing-}him, or collaterally to question his authority to act as executor ?

Where does the district court get jurisdiction to decide th-át Hebert 'has committed treason against the United States, the gréatest crime known, to the law, and as a consequence thereof he became functus off do, .■and was absolutely without authority thereafter to/act as executor of -.the succession of Mrs. Yaughn? I apprehend thaVsuch a question can not be raised in a State court, much less in a civil suit to which Hebert is not a party.

The incapacity which plaintiffs, the heirs of Mrs. 'Vaughn and the children of Hébert, allege that their father incurred from the part he took in the rebellion must be regarded as a punishment for tho illegal act or acts committed by him subsequent to his appointment as executor; yet there is no law denouncing such punishment, much less authorizing its infliction in advance of a conviction after regular trial of the offender. Until the government of the United States sees fit to prosecute Hebert for the alleged offense, no punishment or penalty affixed thereto can be Visited on him, especially by a State court in a civil suit to which ho is not a party. ■

In my opinion, Hebert is the lawful testamentary executor of tho succession of Mrs. Vaughn, of which he has had seizin and control by authority of the probate court since his appointment in April, 1861; and he ..should be recognized as such by the district court and by all other courts, until he is destituted of the office in a proceeding by the parish court of the parish of Iberville, which has jurisdiction of the succession. Upon this point the jurisprudence of this court has long since been, settled.

In the case of Leckie, tutor, vs. Fenner, 9 R. 189, where the plaintiff brought suit as tutor to recover of the defendant in tho district court certain property and the objection was raised to the authority of plaintiff to sue, and it was denied that he was tutor, upon that issue tho ease was tried and disposed of in the district court. This court said: “ The judge has not given us any reasons which induced him to dismiss the suit; but the counsel on both sides agree that it was because the judge thought the appointment of the tutor was illegal and null. In this we think the judge erred. We can not undertake to decide whether the appointment of the tutor was legal or not; but if it were illegal, tho district court of the parish of Ouachita had no power or authority to inquire into it. As a general rule, one inferior tribunal has no power to pass on the decrees or judgments of another, unless they have some appellate power; therefore it was said in 6 La. 666, that ‘the correctness of the judgment of the court of probates can not be questioned in the district court.’ In 3 R. 130, it was held that tho jurisdiction of the court of probates can not be inquired into collaterally, and that letters of execu-torship were conclusive of what they purport to establish, until they have been annulled.”

Here Paul 0. Hébert was duly appointed executor, his letters of execu-torship have never been annulled, and he is and has been in possession of said succession by authority of the probate court since April, 1861.

'Until he is destined of office by the probate court, his capacity as executor can not be questioned in tire district court. The position of Hebert in regard to this succession is that of mandatary in its simplest form. At the time of his appointment there was no incapacity in him to perform the trust, and there was no want of authority in the probate court which appointed him. Assuming that his conduct during the war disqualified him from discharging the duties confided to him, when the war ended and the amnesty proclamation was issued, that disqualification, if such there was, terminated, and Hebert could discharge the trust until the authority was withdrawn by the court which granted it.

If General Hébert had appointed an agent in New York before the war, that agent might not do an act thereunder to bind his principal while the latter was engaged in the rebellion; but when the war ended, when the incapacity of the principal ceased, the agent could act under. the power previously granted until it was withdrawn. So if a merchant of New York had appointed General Hébert his attorney in fact before the war, the latter might not be able to discharge the trust during the existence of the rebellion;'but when the war ended and his incapacity ceased he could act as mandatary, unless the power of attorney had been withdrawn. In 18C9, when the widow and heirs of YVade H. Gilbert recovered judgment against Paul O. Hebert, testamentary executor of the will of Mrs. Vaughn, there was no incapacity in him to represent the succession then under administration and in his possession by authority cf the probate court. He could perform the trust, and the court which appointed him had not annulled-the letters of executorship.

What were the creditors of that succession to do, when in 1869 they found Hébert in possession as testamentary executor, and he was recognized by the probate court? Was it their duty to sue to destitute him of office, because at one time subsequent to his appointment he had served as an officer in the Confederate army ? If they failed to do so from ignorance of the fact that ho had engaged in the rebel service, or otherwise, are their rights to bo destroyed, because they merged their claims into judgment contradictorily with him as testamentary executor in possession of the succession under authority of the court having jurisdiction thereof ? I think not. I think if the judgment obtained by the widow and heirs of Gilbert in 1869 is pronounced an absolute nullity, they will be despoiled of their property, because by lapse of time the bar of prescription can successfully be opposed to their claim, and this is the evident object of plaintiffs. Under the circumstances, I can not consent that all the acknowledged creditors and all the judgment creditors of the succession of Mrs. Vaughn have lost their claims, and that the plaintiffs, the heirs, can take the property free of liabilities.

Plaintiffs, however, rely on the cases of the Succession of Poindexter, 19 An. 22, and the Succession of Vogel, 20 An. 81, to show that by joining the Confederate army Hebert became functus officio, and lost all right to act as executor thereafter. It is true that a remark like that was made in those opinions, but it was not necessary to tho decisions,, and is therefore not authoritative.

In those cases the question was whether a curator and executor who-had left the city of New Orleans and had refused to take the oath of allegianco were entitled to commissions for the time they were absent and beyond the jurisdiction of the court which appointed them. Of course during the period of their absence these fiduciaries ought not to have been remunerated,-because, so far from being beneficial, their absence was injurious to the succession.

This court has frequently held that a curator or administrator whose services have not been beneficial to the succession under his administration ought not to recover the commissions allowed by law. See the Succession of Cabellero, and numerous other decisions of this court.

Here tho case is entirely different, and the question is whether a judgment rendered in 1869 contradictorily with Paul O. Hebert, testamentary executor, and in possession of the succession of Mrs. Yaughn by authority of the court having jurisdiction of said succession, is an absolute nullity, because he was incapable of representing said succession,, notwithstanding his letters of executorship have never been revoked.

For the reason stated I deem it my duty to dissent in this case.

Rehearing refused.