author: Spencer, J. Egan, J.

text:
    No. 6674
    Succession of Baptiste Dougart. Opposition to the Account of the Executrix.
    The Question whether an executrix has been legally appointed can not be raised collaterally, on an opposition to her account. It can only be considered in a direct action to revoke.
    A general denial, in an opposition to the account of an executrix, puts at issue each and every item in the account, and puts on her the onus ol proving each item.
    Tho lapse of alegacy, caused by the legatee’s death before that of the testator, will not give to the universal usufructuary created by the will, the usufruct of the property embraced in the lapsed legacy. Such property will fall to the legal heirs of the testator, if not otherwise specially disposed of in the will.
    Accretion only lakes place in favor of legatees, in cases where a legacy has been left to “several conjointly;” as specially provided for in articles 1707, and 1708 of the Civil Code.
    A mere right of usufruct, no matter how general the usufruct, will not constitute the usufructuary a universal legatee, or evon a legatee under a universal title; but only ,a legatee by a particular title.
    It is only when a legatee by a particular title is charged with the payment of a special legacy, that he can profit by the lapse of the legacy.
    When the property of a legacy left by a deceased husband devolves on his legal heirs, on account of a lapse of tho legacy, his widow will be entitled to the usufruct of the property, and hence not liable for its revenues.
    The usufructuary may at any moment renounce his usufruct.
    Prescription does not begin to run against the claims of the usufructuary, on account of debts paid by him for which the property subject to the usufruct was liable, until the expiration of the usufruct.
    ^PPEAL from the Second District Court, parish of Orleans. Tissot,

      Buck & JDinkelspiel for opponent and appellant.

      Hornor & Benedict and F. W. Baker for executrix.
   The opinion of the court was delivered by Spencer, J., on the original hearing, and on the rehearing by Egan, J.

Spencer, J.

Baptiste Dougart died June 7, 1868, leaving an estate in community with his wife, Elizabeth Bishop. He died without ascendants or-descendants. He left a will by public act of date February 25, 1864, whereby he appointed “Theophile Gollain, and in case of his death my wife, the said Elizabeth Bishop, to be the executrix of this my last will, with full seizin, etc.”

This will contains the following clauses :

“I give and bequeath unto Mrs. Catherine Fairbac, widow of the late Jacob Dougart, my mother, one third of the property of which I may die possessed, such third being the portion reserved, to her by law.”
I give and bequeath unto my wife, the said Elizabeth Bishop, the usufruct during her natural life of all the balance of the property of which I may die possessed, and at her death I give and bequeath the whole of said property to the children of Catherine Dougart, the wife of Michael Burgard, my sister, residing in this city.”

The mother, Mrs. Eairbac, as we have said, died some two years before the testator. The legacy to her thereby became eaducious and without effect. R. O. O. 1697. Gollain qualified immediately after the testator’s death as executor, and seems to have so continued till his own. death, on July 12,1876, without ever having rendered any account of his administration. The Widow Dougart, now wife of Edouard Lischey, thereupon applied to be appointed testamentary executrix, which the court granted, and she taking the oath and receiving letters as such. The executrix thereupon rendered an account of the debts of the estate, and prayed that after citation to the heirs and legatees the same be homologated and approved.

Her account consists of a statement of the debts due by the deceased at his death, his funeral expenses, expenses of last illness, attorneys’ fees, and court costs, etc. She claims in substance, that being usufructuary of the entire property, she procured and advanced the money necessary to pay these debts and charges, and that the estate is therefore bound to her by way of. re-imbursement of all said sums, to which, she was legally subrogated, etc.

The heirs and legatees file opposition to the account, and allege in substance —

First — -That the executrix was illegally appointed, that the will contemplated her appointment only in the event Gollain should die before the testator; that her appointment entailed useless expenses and was unnecessary, as the account showed upon its face that the debts of the estate had all been paid, etc.; that therefore her appointment should be annulled, and her account rejected;

Second — They oppose and deny each item of the account, as not being debts due by the deceased or his estate.

Third — They allege that the legacy of one third of the estate to the mother having lapsed by her predecease, the widow had no right of usufruct thereon; and that as she has had the possession and enjoyment of the entire property since her husband’s death she must account for the fruits and revenues of the third so bequeathed to the mother.

Fourth — They allege that the executrix and usufructuary is seeking to renounce the usufruct, in order to enforce said debts against the estate and sacrifice its property. They deny her right to do so.

Fifth — They plead the prescriptions of one, three, five, and ten years against each item of the account.

We will consider these various grounds of opposition in their order.

First — As to illegality of the appointment of the executrix, it is only necessary to say that that question can not be raised in this indirect and collateral way. Whether legally or illegally done, she was appointed and qualified, and must be treated as the lawful executrix until her appointment is revoked in a direct action.

Second — The denial of each item of the account was certainly equivalent to a general denial of its correctness. The accountant in this case occupies the status of plaintiff, and a general denial was sufficient to put her to the proof of the correctness of her account. Even when no opposition is filed, we hold it to be necessary to the homologation, that prima fade proof of the correctness of the account must be produced. In this case we have carefully examined the evidence, and we agree with the judge a quo that it fully establishes the correctness of the whole account, and shows that the debts specified were truly those of the deceased or of his estate.

Third — The question as to the effect of the lapsing or caducity of the legacy to the mother of one third of the testator’s estate, has been extensively discussed. On the part of the executrix it is claimed that the terms of the will make her universal legatee of the usufruct, or legatee by universal title thereof; that it was the evident intention of the testator to bequeath her the usufruct of all the property of the estate of which he had by law the disposal; that therefore she profited by the caducity of said bequest, to the extent of the usufruct of the property embraced therein, and that the clause in her favor should now be read as follows:

“ I give and bequeath unto my wife, the said Elizabeth Bishop, the usufruct, during her natural life of all o * * * the property of which I may die possessed, and at her death I give and bequeath the whole of Said property to the children of Catherine Burgard,” etc.

The effect of this argument is to claim either that accretion took place in her favor, or that the legacy in her favor was charged with the payment of this legacy to the mother. One or the other of these hypotheses must be the basis of the widow’s pretension, if she asserts it under the will. We can not assent to either proposition.

In the first place Art. 1706 C. C. declares : “ The right of accretion relative to testamentary dispositions shall no longer subsist, except in the cases provided for in the two following articles.”

Art. 1707 C. C. “Accretion shall take place for the benefit of the legatees, in case of the legacy being made to several conjointly. The legacy shall be reputed to be made conjointly when it is made by one and the same disposition, without the testator’s having assigned the part of such co-legatee in the thing bequeathed.”

Art. 1708 C.. O. “It shall also be reputed to be made conjointly, when a thing not susceptible of being divided without deterioration has been given by the same act to several persons, oven separately.”

Art. 1709 O. O. “ Except in the cases prescribed in the two preceding articles, every portion oí the succession remaining undisposed of, either because the testator has not bequeathed it either to a legatee or to an instituted heir, or because the heir or the legatee has not been able or willing to accept it, shall devolve upon the legitimate heirs.”

The right of accretion rests upon the expressed or “ reputed ” intention of the testator to call each legatee to the whole of one and the same thing. “L’accroissement est le droit de prendre, dans une succession ou dans un legs, une part a. laquelle on est' appelé, mais qu’on n’aurait pas eu si tous les co-intéressés ótaient venus recueillir; il est ótabli pour l’héritier ou le légataire, non pas, disait, cujas ut plus habeat, mais bien ne minus habeat. II est clair, en effet, que le prédécés, l’incapaeitó, ou la repudiation d’un co-héritier ou d’un colégataire ne peut pas eréer pour ses co-intéressés un droit qu’il n’auraient pas eu primitivement: que, pour recueillir le tout il faut avoir vocation a ce tout, vocation qui n’aurait pas son entier effet si tous les appelés recueilaient, quia concursu partes fierent.

Done, pour savoir s’il y a lieu a l’aecroissement au profit d’un suecesseur, il faut regarder si ce successeur était appelé ad totum.” Marcade, v. 4 p. 144 — 5.

Among heirs ab intestato, accretion always takes place, for each heir is called to the whole succession. Nemo pro parte haeres. And the same would seem to be true as between universal legatees, since a universal legacy is the attribution, made by testament, of the right, at least eventual, to the universality of the goods of the testator — to the whole succession. But, be this as it may, it is clear that under the Code accretion can no longer take place in testamentary dispositions, except where the legatees are conjointly called to one and the same thing. And it is equally clear that even if made conjointly and by one and the same disposition or clause, accretion does not take place if the disposition contains an assignation of the parts of the respective legatees. Nor will accretion take place when a thing has been given by separate clauses of the same act to several persons, unless the thing be of a nature not susceptible of division without deterioration. Tested by these rules, it is manifest that the right of accretion does not exist in this case for the benefit of the widow; first, because the legacies to the mother and to her are not conjoint; second, because, if they were, there is an attribution of parts, “one third” to the mother, and “ the balance ” (two thirds) to the widow; third, because they are made by separate clauses or dispositions and the usufruct is not indivisible without deterioration.

Nor is it true that the widow is by said will a “universal legatee,” or even a legatee “by universal title.”

In the nature of things the legatee of an usufruct, however general it may be, can not be a universal legatee, because a universal legatee-must be called to the whole of the property which the testator leaves at his decease.” C. C. 1606. Can one, whose title only calls for the usufruct of an estate, one only of the elements of its ownership, ever pretend to have vocation “ to the whole of. the property ” left by the deceased? Nor is she anymore a legatee by universal title. Tobe such she must be called either, first, to an aliquot part of the whole estate; or, second, to all its immovables ; or, third, to all its movables ; or, fourth, to an aliquot part of all its movables or all its immovables. C. C. 1612. By the terms of this will she falls under neither of these classes, and is, therefore, only a legatee by particular title. C. C. 1625.

True, we speak of a universal usufructuary or of one by universal title, and so does the Code, Art. 580, but this is only a manner of speaking, and does not constitute the legatee of the usufruct either a universal legatee, or a le'gatee by universal title. This is made more evident by the fact that universal legatees, and those by universal title, are liable for the debts of the succession. C. 0.1611,1614; whereas the legatee of the usufruct, however general, is never liable therefor.

Nor do we think it can be fairly inferred from the testament that it was the intention of the testator to give his wife any more than he did give her. There was nothing to prevent his giving her the usufruct of his whole estate, if he had so wished. There was living at the date of the testament but one forced heir, his mother, to whom the law-reserved only one third of his estate. Surely the naked ownership of the whole estate would have been more than the legitime of the mother amounted to ; so that he could, if he had desired, have given the usufruct of the entire estate to his wife, without trenching upon the reserve of his mother. Besides, the fact that his mother died two years and a half before the testator, and that he made no change in his will in favor of his wife, is not without significance.

¥e conclude, therefore, that neither by the law, nor by the language or intent of the testator, can accretion be held to have operated in favor of the widow.

But it is said that legatees by universal or particular title profit by the caducity of particular legacies with the payment of which they are charged. O. 0.1704. This is undoubted, but by what process of reasoning'can we say the widow’s legacy was charged with the payment oE the mother’s ? The testament does not say so, and there is no rule of law that says, directly or by implication, that where one third in full property of an estate is willed to A, the forced heir, and two thirds to B, a stranger, in usufruct, that the former is a charge upon the latter. If we were to decide by the importance of the two bequests, or by the relationship of the parties, the converse would be the conclusion. Besides, the legacy to the mother is one under universal title, and not a particular legacy.

We hold, therefore, that the widow can not under the will 'claim the usufruct of the third bequeathed to the mother. But here another question arises. The legacy to the mother having lapsed by her predecease, does the property embraced in' it go to the heirs ab intestato of Baptiste Dougart, or to the children of his sister Catherine Dougart? This depends upon the further question whether these children are universal legatees, for if they are they profit by the caducity to the exclusion of the heirs at law. See Hoover’s Heirs vs. York and Hoover, 24 An. 375, and authorities there cited.

Again, if the lapsed legacy goes 'to -the heirs ab intestato, as not being disposed of by the testator, then the widow’s legal usufruct would attach and continue during her natural life. R. C. C. 915. But if it goes to the children of Catherine Dougart, by virtue of their being universal legatees, then the widow’s legal usufruct never attached, because her deceased spouse had disposed of the property by will. Hence the question as to whether the widow has or has not a legal usufruct on this third, and therefore her accountability for its revenues depends solely upon the nature of the legacy to the children of Catherine Dougart. We repeat that if that legacy is not universal, the widow has a legal usufruct and is not accountable for the revenues. If they are only legatees under universal title, i. e.,' if their rights under the will are confined and limited to the naked ownership of the two’thirds subject to the widow’s usufruct, then the cadu'city of the mother’s legacy can not profit them because that legacy toas not a charge upon their legacy. See C. C. 1704. As before said it is only where the caducious legacy is a charge upon the legatees under universal title, or under particular title, that the failure of it inures to their benefit.

By the second clause of the will above quoted, the testator bequeaths to his wife, during her natural life, the usufruct “ of all the balance,” (i. e. all less one third) of his property, “and at her death” (i. e. of his wife) “I give and bequeath the whole of said property to the children of my sister,” etc. Do the words “the whole of said property ’’ refer to the property he had just given in usufruct to his wife, or to his entire estate ? We think they refer only to the property covered by the usufruct, and for two reasons :

First — The words “at her death,” show that he did not intend any property to go into their possession until the death of his wife,-on whom he had conferred, and show that their rights were restricted to, a life interest.

Second — The bequest to his mother is absolute, and was not made in contemplation oí her predecease, and he could not, therefore, have had any intent to confer her rights upon said children. Besides, if we held the bequest to the children extended to the third bequeathed absolutely to the mother, it is clear their right would be suspended until the death of the wife, thereby creating a sort of vacuity in the title, during the widow’s life, which is not permissible. We conclude, therefore, that the third part of the estate bequeathed to the mother did not pass by the will, and that, therefore, by virtue of article 1709 C. C. it devolved, at the death of the testator “ upon his legitimate heirs.” Hence, also, the widow’s legal usufruct attached at same date and she is not therefore chargeable with its revenues.

The fourth ground of opposition relates to the right of the usufructuary to renounce the usufruct, and demand re-imbursement of the sums advanced. It seems to us that this discussion is premature, for we have examined the record in vain for any evidence of such renunciation. We do not see how the fact that the executrix is also usufructuary can prevent her rendering an account as executrix, showing the condition of the estate — and if she has the right to render an account she has the right to have it homologated if correct. This is all she seeks or asks, and this is the substance of the decree appealed from. It homologates and approves the account. But as both ¡parties have, in argument, treated the proceeding as a tacit renunciation, we shall proceed to give our views upon the subject.

Article 575 C. C. declares that “ The usufructuary can release himself from the repairs which he is bound to make, and even from the other charges of the usufruct, by abandoning it, even when the owner has instituted a suit against him to compel him to make them or bear the expense of them, and though the usufructuary be condemned in such .suit.”

Articles 617 and 624 impliedly recognize also this right of renunciation. The French Commentators recognize the right of renunciation under the Code Napoléon. See Marcade, volume two, pages 528, 542, and note at bottom of page 543. See also Proudhon, “ Traite des droits d’usufruit,” etc., volume four, section 1905, page 313, where he announces the doctrine relative to advances by the usufructuary, that he “can .always render them exigible by renouncing to his right of usufruct.”

The fifth ground of opposition is prescription. Under our law the right of the usufructuary to demand re-imbursement of sums advanced to pay debts does not arise until the expiration of the usufruct. Until then he has no action, and it is elementary that it is only after the right of action accrues that prescription commences to run. It would be idle to cite authority in support of this proposition. An examination satisfies us that none of the claims shown by the account were barred at the time the usufructuary paid them and there has been no prescription •acquired since. The plea, therefore, can not prevail.

We see no error in the judgment appealed from, and it is therefore affirmed with costs.

On Application for Rehearing.

Egan, J.

A rehearing of this cause is granted solely in regard to the sixteenth item of the account opposed, being “the Louis Mathé note and interest.”

On Rehearing.

The note charged in the account of the executrix as having been paid to Louis Mathé, amounting with interest to $309 50, and placed on the account as item sixteen, is not to be found in the record. The only evidence to sustain this item is that of the executrix herself, and is too uncertain and indefinite, both as to the existence and payment of the note, to warrant its allowance. These facts wrere overlooked at the time of our former decree in view of the grave and more important issues involved in this litigation.

It is therefore ordered, adjudged, and decreed that the decree of this court heretofore rendered in this case be and it is so far changed and amended as to reject as of nonsuit the sixteenth item of the account of the executrix, to wit: the Louis Mathé note and interest, and that the succession pay the costs of appeal and of the oppositions of the appellants, and that in all other respects our former decree remain undisturbed.


source: Caselaw Access Project

author: Egan, J.

license: Public Domain

text:
    No. 5396.
    Mrs. Ada Pierce Denégre vs. Mrs. Silvaine Denégre et al., Executors of John Denégre.
    All property ionncl in tlio succession oí a deceased husband, or wife, and in the possession of the surviving husband, or wife, is presumed by law to be community property, until the contrary be proved.
    When separate funds of the husband have been used to benefit and enrich the community, it will constitute a debt of the community in favor of the husband, or his succession, to the amount of such funds. But the evldeuce must establish with reasonable certainty, that the funds thus used were really the separate property of the husband; merely making that fact probable is not sufficient.
    Money received by the executor of a deceased husband, arising from the liauidation of a former commercial firm of which the husband was a partner for several months after his marriage, can not bo deducted from the community, until it is shown that such money was not a part of the husband’s share of the profits earned by his firm during his marriage.

      A PPEAL from the Second District Court, parish of Orleans. J. Tissot,

      W. O. Denegre and J3. D. White for plaintiff and appellant.

      W. H. Hunt and Thomas J. Semmes for defendants.
   The opinion of the court was delivered by

Egan, J.

The sole question in this ease is what is the extent and value of the community .after the payment of its debts. Much of the argument of counsel was addressed to a discussion of the law regulating the community rights of the spouses in Louisiana and free reference has also been made to the laws of Spain and of France with a view to determine the exact nature and extent of the rights of the parties to this litigation. However interesting and instructive such discussion of foreign laws may be, the law of Louisiana is too positive and well settled in regard to the matter under consideration to render such reference necessary in the present case. The community of acquets and gains commences at the moment of marriage with nothing and includes at its dissolution presumptively every thing found in the succession of the deceased spouse and in the possession of the survivor, unless it he satisfactorily proved which of such effects either of the spouses brought into the marriage or which have been given them separately or been inherited' by them separately. R. C, C. 2405; Bouligny vs. Justin, 16 An. 209. Any property or effects acquired by both or either otherwise during the marriage fall into the community and constitute part of it without reference to the name in which it is acquired, R. C. C. 2402, and without reference also to the amount brought by the respective spouses into the marriage, even though one of them may have brought nothing. R. C. C. 2406. Separate property is that which either party brings into the marriage or acquires during the marriage by inheritance or donation made to him or her particularly. R. C. C. 2334. If the title to such separate property be satisfactorily proved at the dissolution of the marriage it is retained by or restored to the party owning it or his heirs or succession separately and apart from the community or the property of ' the other spouse. The effects which compose the community as well as the profits arising from the effects which both husband and wife brought reciprocally in marriage, and which have been administered by the husband or by the husband and wife conjointly, are divided after the payment of the community debts equally between the husband and wife or their heirs upon the dissolution of the marriage. R. C. C. 2406. If the separate property of either husband or wife has been increased or improved during the marriage by the common labor, expenses, or industry of both, the other spouse or his or her heirs shall be entitled to one half the value of the increase or amelioration. R. C. C. 2408. The converse of this proposition is equally true, that if the community has been enriched by the separate funds of either spouse it is indebted pro tanto at the dissolution to the separate estate of the spouse whose funds have so enriched it, and this is as much a debt of the community as if it were .due to a third person, and must be first deducted from the mass or paid to the spouse to whom it is due before a partition of the common effects. Like any other debt, its origin, character, and amount must however be satisfactorily shown, otherwise the partition and settlement of the community will take place without reference to such claim in accordance with the principles already announced. The difficulty in the present case seems not to be in relation ’to property found in the succession, in regard to which the presumption of its community character exists, but in regard to separate funds of the husband alleged to have been used to enrich the community and to be therefore due by the community to his separate estate. The discussion at bar as to money having no ear-marks and not being therefore traceable when mixed up with community or succession funds, is foreign to the present case, if indeed it has any practicality in any. The question is solely one of debt or no debt from the community to the separate estate of the husband. The ■sole source of the husband’s wealth or revenue at the time of the marriage, and consequently .the only source from which he could or did derive any funds alleged to have been used for the benefit of and to enrich the community, was his interest in a commercial firm which continued in existence and to do business for several months after the marriage, when it was dissolved, and the husband entered into a new commercial partnership which continued up to the time of his death, and it seems from the evidence for some months after, it is presumed, though the fact does not appear, owing to a stipulation in the articles of partnership. It appears from the evidence that at the time of the marriage the husband had upward of thirty-two thousand dollars to his credit on the books of his firm, and that he had actually put into it a cash capital ■of twenty-five thousand dollars. It also appears that he put into the new firm formed subsequent to his marriage a capital of thirty-five thousand dollars, of which only seven thousand dollars is traced to any other source than his interest in the firm of which he was a member at the time of the marriage. A sworn account or statement in the record also shows that various sums of money to a large amount were paid over by his former partner in that firm to him or to his executors since his death. The marriage took place in November, and the husband died a little over twelve months afterward. From these facts and the ■existence of considerable property and effects in the community at his ■death we are asked to infer that the community is indebted to the separate estate of the husband in the sum of twenty-eight thousand four hundred and twenty-one dollars and ninety-seven cents, an amount exceeding the total value of the community after deducting from it. debts due to other persons and law charges by more than $13,000.

We have examined the evidence with care and with the desire to end this litigation, but while it is sufficient to render it probable that the-community is in debt to the separate estate of the husband, we are-unable to agree with the executors or their counsel that either the fact or the amount of that indebtedness is satisfactorily shown. It is correctly argued by plaintiff’s counsel that because the husband had put a certain amount of capital into a commercial firm of which he was a-member some years before the marriage, and had a certain amount to his credit upon the books of the firm at the date of the marriage, it by no means follows that he was actually worth that amount or either amount at the marriage. Nor does it follow necessarily that because that firm continued in existence for several months after the marriage in a large commercial city and the husband derived from it on a settlement during the marriage a large amount of money which was put by him into another commercial firm or otherwise paid over to him or his executors that he was therefore worth the amount so received at the-time of the marriage and entitled to take it out of the community before partition with the wife of the common funds or property. - The short duration of the marriage and the evidence of the existence of such a. source from which he might have derived funds which went to enrich the community are circumstances entitled to consideration, and to which we attach the weight of simple probability and nothing more. They would not be sufficient to establish a debt against a stranger, nor, in our opinion, are they sufficient to do so against the community or to rebut the presumption in its favor created by the law. In order to do so it was necessary to show not only that the husband had a certain amount of money to his credit with his firm or co-partners at the date of the marriage, but that if the debts of the partnership had been then paid and the partnership then settled that his individual interest was actually and really worth a certain amount at the time, or that he afterward actually received during the marriage from that source without reference to profits and exclusive of profits made subsequently an amount of money equal to that with which it is sought to charge the community, and that it was used to enrich the community. Any portion received by the executors from that source subsequent to the death of the husband would form no proper charge against the community, and could not be properly deducted from if under the facts of this case, unless it be first, shown affirmatively that the sums so received were not the result of profits made subsequent to the marriage by the firm of which the husband was a member. It is too well settled to require the production of' authority, and results necessarily from the very nature of partnership, that no partner can at his option withdraw from the firm with his original capital or any specific sum of money at any time without reference-to debts due by the firm or to the sufficiency of the assets of the firm to pay not only him but his co-partners also any amounts which may be due them. Hence it results that he can neither be said to be worth any specific sum until all these facts are first ascertained, nor can he even maintain an action against his co-partners for any specific sum, but only for a settlement and ascertainment through such settlement of the actual amount to which he may be entitled, and upon such settlement it may actually turn out that whatever amount he may have put into the common venture, and in whatever proportion he may be entitled to share in the profits, he may actually realize nothing. His entire capital and interests may be absorbed either through the chances of trade or the mismanagement or unfaithfulness of his partners. And this is especially true of a business conducted in a large commercial .city like New Orleans where, as very properly stated by plaintiff’s counsel fortunes are often made or lost in a day or in a few months. It is then impossible from the evidence before us to determine how much if any of the separate funds of the husband were used for the benefit of the community, and how much of the funds derived by him subsequent to the marriage from the commercial partnership of which he was a member at the time of the marriage and for several months after were derived from profits made subsequent to the marriage, his share of which if so made, which the law presumes in the absence of proof to the contrary, were of right a part of the community and must be treated and held as such.

In order that no injustice may be done and to give to the parties an. opportunity to make fuller and more certain proof both as to facts and amounts—

It is therefore ordered, adjudged, and decreed that the decree heretofore rendered by this court be avoided and annulled; that the judgment appealed from be and it is avoided and set aside, and this case-remanded to the court below to be further proceeded in in accordance-with the principles of this opinion. It is further ordered that the costs of this appeal be paid by the succession of John Denegre, deceased, and that all other costs await the final determination of the cause.


author: Manning, C. J.

text:
    No. 6861.
    State ex rel. Sam Lisso vs. W. P. Peck.
    The mere failure of a party who has been elected to a constitutional office to Qualify within thirty days from the date of his commission, can not he construed into an abandonment of the office.
    A compact with his deputy made by a clerk of court, which stipulates that the deputy shall perform the duties of the office, and the clerk shall receive a proportion of the official fees, or a fixed monthly sum, is not such a transaction as will forfeit the clerk’s right to his office, and thus create a vacancy in it.
    .1 PPEAL from the Seventeenth Judicial District Court, parish of Red £1. River. Pierson, J. Jury trial.

      W. Pike Hall, District Attorney, L. B. Wathins, Blam & SiUherlin, and J. F. Pierson for plaintiff and appellant.

      John B. Boberson and John L. Scales for defendant and appellee.
   The opinion of the court was delivered by

Manning, C. J.

The relator brings this suit under the Intrusion Act, being joined by the district attorney, for the office of clerk of the District court for Red River parish, alleging that he is entitled thereto by virtue of an appointment by the Governor made to fill a vacancy.

The respondent denies there was a vacancy, qnd claims that he was and is the clerk by virtue of an election in November 1876, and that he has been commissioned and has qualified, and has acted as clerk ever since his qualification.

The case was- tried by a jury, who returned a verdict for the defendant, and judgment being entered accordingly, the relator prosecutes this appeal.

It is conceded that the defendant was elected clerk in November 1876. He was commissioned December 21,1876 by the then acting Governor. He was again commissioned by Governor Nichols on 16 January 1877. On the 19th of that month he appears- to have taken an oath as clerk before one Honoré, styling himself Secretary of State, which was not a qualification because of want of official status of the person thus styling himself, since we take judicial cognisance of the fact that W. A. Strong was Secretary of State at that time. He did not attempt to qualify further until later — -indeed his commission from Governor Nichols was not delivered manually to him until between the 1st. and 10th. of March, although he knew it had been brought up from New Orleans shortly after its date, and was in the possession of Woessor who brought it. His qualification was accomplished on May 7.1877, but he had presented his official bond to the District Judge for approval a week or ten days before that day.

Meantime the old incumbent Wester held over and discharged the duties of clerk, but he had been elected sheriff at the election of the previous November, and qualified to that office April 30,1877. On that day he vacated the clerk’s office. Peck was already endeavoring to qualify as clerk. About that time, or within the three preceding days, he had presented his bond for approval to the judge at his residence in a neighboring parish and it was rejected. The seventh of May was the opening day of the term of the District court for Red River parish. No one had qualified as clerk, at the usual hour for opening court, and it was adjourned until the following morning.

Peek gave a satisfactory bond and took the oath of office on the 7th. after court had been adjourned — a few minutes before 12 o’clock as some witnesses say, two or three hours later, according to others. He took possession of the office on same day, and has been clerk ever since.

On the morning of the 7th. of May several lawyers in attendance on the court telegraphed the Governor there was no clerk. He appointed Lisso, the x'elator, immediately, who having received the commission on the 14th, qualified on the 18th. and instituted this suit on the following day.

We think his appointment bad. There was no vacancy to fill.

The grounds upon which the relator relies are, that Peck vacated his office of clerk by failing to give bond within thirty days from the date of his commission, to support which sec. 351 of the Revised Statutes of 1870 is cited, and that he had sold the office to D. H. Hayes which is contrary to good morals and public order.

We may remark here the inconsistency between the two pleas, for if the office was vacant after the expiration of thirty days from the date of Peck’s commission, and his right to it had lapsed from that time, then he had no office to sell in May following. But it can scarcely be seriously contended that the right to a constitutional office is ipso fació lost by failure to comply with a directory provision of a statute xxpon bonds, the object and purpose of which is to designate the persons who shall approve official bonds, to prescribe their formalities, where the sureties must.reside, and other cognate matters.

The legislature has not declared that failure to execute a bond within thirty days shall operate ipso facto a divestiture of a constitutional office, though such failure ipáy well be considered as a presumption of abandonment, and until it does declare what acts or omissions of the officer elect shall constitute a conclusive presumption of abandonment, if indeed it has that power, it is not for us to do so. Under the facts of this case, the presumption is against an abandonment by the defendant. He had twice attempted to qualify before Wester vacated, and his bonds were rejected. So far from abandoning his right to the office, his third bond was tendered and.accepted before the qualification of the relator.

Nor do we think the arrangement made by Peck for performing, or having performed the duties of his office properly, is to be denominated a sale of its functions and franchises, or if a sale, however reprehensible,, that it operates ipso facto a loss of the office and a consequent vacancy. The recital of the arrangement, as fully disclosed by the evidence, will rather shew that the parties do not merit the harshness with which the-relator’s counsel have characterized their conduct.

Reck agreed with Hayes that the latter, whom he appointed his-deputy, should perform all the duties of the officS, and that himself' should receive either a proportionate part of the fees, or a stated sum each month. What was the motive for this agreement does not very clearly appear. It is in one place either stated or hinted that Peck could not give bond unless he made that agreement. There were persons who-were willing to become his bondmen, provided he would place a responsible and competent deputy in the office, who should actively discharge its functions, while himself would be delegated to the more congenial occupations of his retail saloon’ in another quarter of the village. Certain it is, that the arrangement contributed to the dispatch of business, and it does not want parallel cases either in the past or present to ,j ustify it. The frequency with which such arrangements are made redeems-this from the reproach of singularity, and relieves it from the suspicion of bad intent.

The relator has failed to convince us that his appointment was-made under circumstances justifying it, and he has therefore no right, to the office he demanded. ‘ ,.

Judgment affirmed.


author: Marr, J.

text:
    No. 6869.
    State ex rel. C. C. Durand et al. vs. Parish Judge of St. Martin Parish.
    The object of the rule nisi in a mandamus proceeding is not to ascertain whether-the court erred in granting the rule, but whether the mandamus should be made peremptory. And henee it is to the latter inquiry alone that the respondent should address himself.
    A party having occasion to apply for mandamus in two suits, before the same judge, may state his causes of complaint, with respect to both, in a single petition.
    ' The bond for a suspensive appeal from a judgment which does not decree the payment of a certain sum of money, or the delivery of a movable, or an immovable,' need only be for an amount sufficient to pay costs.
    The bond for a suspensive appeal from a judgment which orders the sheriff to put a party in possession of certain real estate, should be for a sum exceeding by one half the estimated value of the revenues of the property pending the appeal, and for whatever additional sum may seem necessary to cover injury or deterioration which may be caused to the property by the appellants during the timo they may continue in possession.

      REPLICATION fox a mandamus.

      F. M. Voorhies for relator.

      Jos. A. Breaux, L. J. Gary, and W. F. Schwing for respondent.
   Tlie opinion of the court was delivered by

Marr, J.

Charles C. Durand; administrator of the succession of Charles Durand, Jr., obtained an order from the parish court, under which he caused to be offered for sale by the sheriff certain real property, which was adjudicated to Alphonse Tertrou at the price of $10,134. Tertrou refused to pay the cash which was demanded of him ; and the sheriff proceeded to offer the property again, when it was adjudicated to C. C. and John L. Durand, at the price of $2235.

The administrator filed a tableau or statement of the property of the succession, and of the debts and charges to be paid, and the taxes and funeral expenses paid. Tertrou filed an opposition in which he claimed to be a creditor for an amount exceeding $16,000, secured by mortgage on the property adjudicated to him; and he asserted the right to retain the amount of his bid, $10,134, on account of the larger sum due to him.

The parish judge ordered the tableau to be amended in several particulars which it is not necessary to state now. His decree is as follows:

“ Let the claim of Alphonse Tertrou as mortgage creditor be recognized and placed upon the tableau. Let the bid of Alphonse Tertrou upon the succession property sold on the thirtieth of August, 1876, be recognized as valid. Let the tableau be amended as above set forth; and, as so amended, let the same be homologated.”

This suit is number 2249 of the docket of the parish court.

In his capacity as administrator, C. C. Durand caused a writ of fieri facias to issue on a judgment against Alphonse Tertrou, which Tertrou enjoined ; and he claimed the right to have the judgment compensated by the mortgage debt .due him. The parish judge decreed that Tertrou be recognized as a mortgage creditor of the succession of Charles Duland, Jr., for the sum of $1G,879, with interest, less the sum of $10,-134, a credit allowed in his petition. The decree proceeds :

“Let the injunction be made perpetual, the plea of compensation be admitted, and let the adjudication to Alphonse Tertrou be recognized. The sheriff of the parish of St. Martin is, therefore, ordered to execute a deed of sale in favor of Alphonse Tertrou, and to place him in possession of the premises upon his complying with the requisites of the law.
“It is further decreed that the pretended adjudication to C. C. Durand and John Durand be declared null and void, and that the deed of the sheriff to those parties be annulled and canceled.”

This suit is entitled Alphonse Tertrou vs. C. C. Durand and others, number 8166 of the docket of the parish court.

In the succession suit, number 2249, C. C. Durand as administrator, and personally, and John L. Durand applied for a suspensive, and, in the alternative, for a devolutive appeal, which the parish judge granted on their giving bond in the sum of $500 for a devolutive, and $15,000 for a suspensive, appeal. Four other appeals were applied for by creditors of the succession; and on each appeal the bonds were fixed at $500 and $15,000 for the devolutive and suspensive appeals respectively. Among the appellants were Alphonse Tertrou and Mrs. Euphómie Broussard, widow of Charles Durand, Jr., the latter claiming to be a mortgage creditor for some $3000 for her dotal and paraphernal rights.

In the injunction suit, number 8166, C. C. Durand as administrator, and personally, and John L. Durand moved for an appeal, and so did Mrs. Euphémie Broussard separately. On each of these motions the parish judge fixed the amount of the bonds at $500 for a devolutive, and $15,000 for a suspensive, appeal.

The Durands in one petition, and Mrs. Broussard in another, applied to this court for writs of mandamus to compel the parish judge to grant the appeals prayed for by them in the two suits respectively, on their giving bonds in conformity with article 577 of the Code of Practice.

The parish judge excepted in both cases. Ve shall notice but one ground of exception, which is, that two writs of mandamus can not be applied for in one petition; and as separate appeals were applied for in the court below in the two suits, numbers 2249, 8166, the same distinction should be observed in the application for mandamus.

He also answered to the merits, in the event that this court should decide that the issues can be passed upon in the manner in which they are presented. It is not necessary to set out these answers in full. They state no fact in support of his rulings in fixing the amount of the bonds ; and we refer to them only to notice his statement that this court has recently decided that the administration as a creditor can not appeal without giving bond in an amount equal to one half more than the assets of the succession. He refers to no cáse, and we do not recollect any case, in which any such decision was ever made. If any such decision has been made it should be at once overruled; and we take occasion now to say that no such decision can be maintained either on principle or authority.

So far as the exceptions are concerned, if that form of pleading is admissible in such a proceeding as this, which we are not disposed to concede, they would tend to show merely that the rule nisi should not have been granted by this court. When such a showing is made by the relator, in his ex parte application for the writ of mandamus, as satisfies the court, prima facie, that he is entitled to the remedy which he seeks, it is the business of the judge, or other person to whom the rule to show cause is addressed, not to set up technical or other objections which merely tend to show that the rule nisi should not have been granted, and that this court erred in that respect, but to state any fact, appearing of record, which may have been omitted by the relator, or to refer to any law which would show that the peremptory mandamus, which is not granted until both parties have been heard, should be ■ refused.

The object of the rule nisi is to obtain all the information necessary to a correct decision. The relator makes his statement under oath. The rule to show cause is intended to enable the respondent to make his statement; and it does not concern the one or the other of them that this court has chosen to permit the party having occasion to apply for mandamus in two suits, before the same judge, to state his causes of complaint in respect to both in a single petition.

The right of appeal is a precious one, and it should be favored and aided by the courts. There should be no difficulty in fixing the amount of the bond for an appeal in any case. Where the judgment is for a specific sum the party cast must give bond, for a suspensive appeal, for a sum exceeding by one half the amount for which the judgment was given. C. P. Art. 575i

If the judgment decree the delivery of a movable of perishable nature, the security for a suspensive appeal must be for an amount exceeding by one half the estimated value of such movable. C. P. Art 576.

If the judgment decree the delivery of real estate not of a perishable nature, security shall only be required to an amount exceeding by one half the estimative value of the revenue to be derived from such real estate, pending the suit; and for such further amount as the judge may determine as surety for an injury or deterioration which maybe caused to the estate by the appellant while in possession of the same. C. P. Art. 577.

In all cases not falling within the terms and provisions of these articles, no other security is necessary than such as will suffice to cover the costs.

In the succession suit, number 2249, the judgment does not condemn any one to pay any sum of money, nor to deliver any movable or immovable. It amends the tableau so. as to place Tertrou on it as a mortgage creditor; it rejects the claims of certain persons claiming to be creditors; it recognizes the bid of Tertrou, and settles the rank of the creditors. The administrator, or any creditor whose interests are affected by that judgment, has the right of appeal; and no security can be required of them beyond such as will suffice to pay the costs.

All this has been fully explained and laid down clearly in Millaudon vs. Percy, 7 N. S. 352; Blanchin vs. Fashion, 10 An. 345; State ex rel. Hicky vs. Judge Fourth District Court, 20 An. 108 ; State ex rel. Gaussin vs. Judge of Second District Court, 21 An. 43 ; Succession of Cloney, 29 An. 328; State ex rel. Smith, 29 An. 838.

The other case, number 8166, is somewhat peculiar. Tertrou bid $10,134 for the property, but he has not paid, nor does he intend to pay, any part of this sum into the hands of the administrator. He simply proposes to credit it on the mortgage debt which he claims of the succession. The judgment requires the sheriff to make him a title to the property, and to put him in possession. The appeal will suspend the execution of this order; but the case will probably be heard and determined at the June term, 1878, or within some seven or eight months after the date of the judgment. The appellants should be required to give bond for a sum exceeding by one half the value of the revenues which the property ought fairly to yield during the time for which this appeal will probably be pending ; and an additional sum might also be required, to cover injury or deterioration which may be caused to the property by the appellants during the time they may continue in possession under the suspensive effect of their appeals. Without proof that the party in possession was so managing and dealing with the property as to abuse-and injure it, or to diminish its value by waste, there would be no occasion to require any large amount, if any thing, on this score.

We have no idea what revenue this property yields, nor whether it Is productive or not; nor have we any information which would enable us to indicate the amount of security which should be required in this case more definitely than we have done. It is not our province to fix the amount of appeal bonds; and we can only say, when a bond is presented for our consideration and brought within our cognizance, whether or not it is sufficient in the given case. We have endeavored to express our views of the law in such a manner as will make them serve as a guide to the parish judge, and enable him so to use the discretion vested in him as to protect and secure the rights of the appellees, and to permit the appellants to exercise their right of appeal on the terms and conditions prescribed by law.

It is therefore ordered, adjudged, and decreed that the mandamus herein prayed for be made peremptory; and, accordingly, that Garter Basset, parish judge of the parish of St. Martin,be ordered and required to grant unto Charles C. Durand, as administrator of the succession- of ■Charles Durand, Jr., and in his own right, and John L. Durand, and unto Mrs. Euphómie Broussard, widow of Charles Durand, Jr., the suspensive appeals demanded by them in the suit number 2249 of the docket of the parish court of St. Martin, on their giving bond and security in such sum, to be fixed by the said judge, as will be sufficient to cover and secure the costs which they may be condemned to pay by ■the judgment and decree to be rendered by this court on their said appeals respectively; and that the said parish judge be also ordered and required to grant to the said Charles C. Durand, in his said capacity as administrator, and personally, and John L. Durand, and unto Mrs. Euphómie Broussard, widow of Charles Durand, Jr., the suspensive appeals by them demanded in the suit number 8166 of the docket of •said parish court, on their giving bond and security jn a sum to be fixed by the said parish judge, in accordance with the terms and provisions of Art. 577 of the Code of Practice, and the views and opinions herein expressed; and that the said parish judge pay all the costs of this proceeding.

Mr. Justice DeBlanc recused himself in this cause.


text:
    No. 6914.
    State ex rel. E. Rabasse vs. Police Jury of Terrebonne Parish.
    Whore an act of the Legislature authorizes a parish to issue its bonds for a certain purpose, in such form and denomination as the police jury of the parish shall prescribe, the police jury must specially authorize the issue of the bonds, and the bonds must be signed by the persons designated by the Legislature; and in default of this action of the police jury and this signature of the bonds, all bonds issued under color of said legislative act are invalid.
    When a law directs that certain bonds'of a parish shall be signed by a majority of the members of its police jury, it means a majority of the members designated by the jury. It does not mean any majority of its members, not selected for the purpose by the jury.
    A PPEAL from the Thirteenth Judicial District Court, parish of Terrebonne. Beattie, J.

      Thomas L. Winder for relator and appellant.

      L. F. Suthron for respondents and appellees.
   The opinion of the court was delivered by

Manning, C. J.

The relator is the holder of certain instruments, denominated Bonds of the parish of Terrebonne, amounting to four thousand seven hundred and seventy-five dollars, with interest coupons attached. Having demanded payment of the over-due coupons from the parish Treasurer, and having been refused, he obtained this mandamus to the tax collector of that parish to collect forthwith a tax sufflcient to pay the past due interest and that next falling due, and also one tenth of the principal, in accordance with the provisions of the Act of March 23,1874, and of an ordinance of the police jury of May 6,1876. He prayed further that the police jury be commanded to enforce that ordinance, which he alleges is amendatory of one of July 31,1874 and another of March 9,1875.

The tax collector and the police jury answer, that the proceeding by mandamus is not permissible for the purpose of the relator because the power conferred upon them by the Act of the General Assembly is to be exercised only at their discretion, and that they have not yet issued the bonds provided for in the Act — that the bonds sued on are null'and void and are not valid obligations of the parish for these reasons ; 1. They were not issued by authority of the police jury and a commissioner, 2. No ordinance was passed by the jury authorizing their issuance, nor prescribing the quantity of them or fixing their denomination, nor prescribing the rate of taxation for their redemption and the payment of interest, 3. there was no ordinance prescribing the form of the bonds, nor when they should mature.

There was judgment for the defendant below and the relator appeals.

An act was passed by the legislature creating a board of commissioners to examine and ascertain the valid outstanding indebtedness of the parish of Terrebonne, and authorizing the police jury of that parish to issue bonds to take up and fund the same. Acts 1874, p. 124. The commissioners are named in the act, and full power is conferred upon them to determine upon the validity of all outstanding claims against the parish, and to call on holders for their presentation. It is then provided that the police jury, in conjunction with one commissioner, is empowered to issue bonds of the parish not exceeding twenty thousand dollars, interest to be paid semi-annually, for the sole purpose of taking up this debt. Directions are given that these bonds must be signed by a majority of the police jurors and one commissioner, and their denomination is fixed. The police jury is required to levy a tax sufficient to redeem one tenth of the bonds annually, and the yearly interest, and the ordinance of that body, passed for that purpose, is to remain in force until the redemption of all the bonds and the payment of all the interest. The closing proviso of the act is, that it is not to be so construed as to deprive courts of the power of adjudicating upon any claim which may be rejected by the commissioners.

On the first of May following the passage of this Act the police jury passed a resolution that a committee of two be appointed to obtain blank bonds for the purpose of bonding the parish debt under it, and later $250 was appropriated to enable this committee to buy the blanks. On July 31,1874 that body resolved there should be levied a tax of $665 to pay the semi-annual interest accruing on the bonds which have been issued under the act of the legislature. No ordinance had been passed directing the issuance of the bonds, but Only resolutions providing ways and means for getting the blanks which would be needed when the bonds were directed to be issued..

On March 9,1875 the jury resolved that a tax of one mill be levied lor ,the purpose of meeting the interest, and redeeming one tenth of the principal annually of the parish bonds, and on May 6,1876 an ordinance was adopted, amendatory of this resolution, authorizing the levy of a tax of one mill on the dollar upon all taxable property to redeem annually one tenth of the bonds issued under the Act of the legislature and a tax of one and a half mills to pay the interest annually accruing.

The commissioners named in the 'Act met on June 22 1874, and elected one of their number to sign the bonds issued under its provisions. They had formally organized in April, and had published a notification to all holders of parish warrants, scrip, or other claims to present them to the board for inspection. They received the scrip, issued bonds to the amount of over fifteen thousand dollars, and destroyed the scrip. The relator’s bonds are a part of those thus issued.

They were issued illegally. At no time did the police jury pass an ordinance directing, authorizing, or empowering the issuing of any bonds. The Act of March 23,1874 empowered the police jury to issue bonds of the parish, and directed that a majority of the jurors and a commissioner should sign them, and required the jury to levy a tax to pay them and the annual interest. The jury levied the tax, but did not authorize the bonds. It did not designate which of them should sign the bonds. The police jury is a political entity, and acts as one being. When written instruments are to be signed by it, the president or some members selected by it, act for the body. The legislature had required that a majority should sign these bonds. A majority was three. The jury should have designated the three. To hold that any three members of a police jury can bind the parish by signing bonds in its name would be dangerous, to say nothing of its being illegal.

It is perfectly manifest that the board of commissioners usurped the functions of the police jury. The bonds are dated July 1.1874 and are all payable ten years after date. The attempt to prove a meeting of the police jury on that day was abortive. Marie, the commissioner who signed the bonds, knew of no meeting on that day. Kennedy, a member of the jury, says there was, and he attended it on a summons from the president, and then recites what took place touching the bonds with a minute circumstantiality that exhibits an extraordinary memory for details. He was testifying more than three years after the meeting. V/e do not believe him. The clerk of the police jury is not certain there was a meeting. Yet his records contain no account of it. He does not even remember whether he was at it or not, and on cross-examination says, he supposes the police jury was in session because a majority of them were there. That was the day they were signing the bonds. Condon, Keys, and Cage were the three that signed the bonds, and of course were there, but there is nothing to indicate Kennedy’s presence, who remembered everything that was proposed and passed while the clerk says that he remembers no motions or resolutions, and certainly did not record any. The president of the jury thinks there was a meeting of that body on 1st. July, but says a record was kept if there was a meeting — that he always appointed a deputy or pro tern, clerk when that officer was absent, and he required him to note the proceedings in the same way the clerk did — and that if there was a meeting on that day, the minutes will shew it. The minutes contain no mention of it.

The commissioners appear to have read the act as conferring upon them the power of bonding what is called the indebtedness of the parish. The sequence of events shews this. The police jury obtained the blanks, and did nothing else until after the bonds were issued. On June 22d the commissioners selected one of their number,to sign the bonds. On July 1st. he did sign them and three members of the jury signed also. On July 31st the jury levied a tax to pay the interest accruing upon bonds alréady issued, as the resolution has J.t, and although minutes of every step taken by the-jury in its frequent meetings about that time relative to these bonds were preserved, nowhere do we find any trace of an ordinance authorizing and directing the issuance of any bonds, but on the contrary the phraseology of all the resolutions shews that the members supposed that nothing was to be done but buy blanks for signature, and after they were signed and issued, to levy a tax to pay the interest and one tenth of the principal. The bonds shew this. They were all payable at one time viz ten years after date. The jury were required to levy a tax to pay one tenth each year, and they did it, and if they had had any thing to do with ordering the bonds, they would have made one tenth payable at the end of each of the ten years.

The duty of the commissioners under the legislative Act was confined to the examination of claims and determination of their validity. They had nothing else to do except select one of their number to sign the bonds. But they appear to have received scrip, warrants, etc. and of their own motion exchanged bonds for them, which had been signed ready for their use. They did more. They destroyed the scrip. They had no right to destroy it. They should have examined it, and have passed upon its validity, and laid their report before the police jury who alone had authority to exchange bonds for it.

We may remark here that it is unnecessary to say in this case whether the legislature can confer upon such a board the power so to ‘ determine the validity ’ of alleged claims against a parish as to create a binding and unassailable obligation upon it. Judicial power can be exercised only by the courts mentioned in the constituton. It is true the Act provides that any person whose claim is rejected may invoke the adjudication of a court. But the police jury and the tax payers have rights also, and it would appear that where a claim was approved, it was intended that the determination of the board of commissioners was in that case to be final. A tribunal that is clothed with such extraordinary power as to conclude one- party absolutely by its decision, while the other is alone left free to demand a judicial investigation, may well provoke scrutiny of its origin, and the source of its authority.

Several decisions of the Supreme Court of the United States are cited by relator’s counsel, and among them is Commissioners of Knox Co. vs. Aspinwall, 21 Howard, 540. In these cases, the bonds were issued by the proper authority, and in accordance with the act of the legislature. We have seen the bonds of the relator were issued without the authorization of the police jury, the body specially designated by the legislature to issue them. Lisso v. Parish of Red River, 29 Annual, 590.

It is unnecessary to consider the bills of exception to the admission or rejection of testimony, as without the testimony objected to by either side, the case is clearly with the respondent.

Judgment affirmed.


author: Spencer, J.

text:
    No. 6749.
    Jean Claverie vs. L. A. Gerodias and Her Husband.
    Whoro an application for a writ of injunction, filed in conjunction with an opposition to a seizure and sale, is referred to the merits, and no restraining order was issued until after a hearing on the merits, it is immaterial whether the affidavit for the injunction was legally sufficient, or not.
    The mortgage note of a wife knowingly received by a creditor of the husband, in satisfaction, or security of the husband’s debt, is, in the hands of such a creditor, utterly null and void.
    APPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      W. F. Murplnj for plaintiff and appellant.

      F. Michinarcl for defendants.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff holding a note of Mrs. Gerodias for $2000, secured by mortgage on her paraphernal property, executed by authority of the Judge of the Third District Court of Orleans, took executory process thereon.

The defendant filed an opposition thereto,' alleging that the note was obtained from her by fraud and misrepresentation — that the recitals of the act of mortgage to the effect that Olaverie had loaned her the amount of the note were false to his. knowledge — that in truth said Olaverie never gave her any consideration for said note — nor did she ever at any time owe him any thing. That her husband and his partner, in the butcher business, were in debt to said Olaverie, and that the husband and Olaverie arranged this plan to secure said indebtedness. She prayed for an injunction, and by way of reconvention, demanded the nullity of the mortgage, the erasure of its inscription, and the surrender to her of the note. The court granted an order on plaintiff to show cause why an injunction should not be granted. This rule was cumulated with the merits, and there was final judgment for opponent as prayed for by her. Plaintiff appeals. Our attention is called to exceptions filed by plaintiff to opponent’s proceeding in the court below. The exceptions are—

First — That defendant can not intervene in a suit against herself.

Second — That an intervention is not permissible-in a seizure and sale case.

Third — That defendant’s petition or opposition is too vague; and

Fourth — That the affidavit is insufficient.

There is no force in any of these exceptions. She does not intervene, but files an opposition and petition for injunction under articles C. P. 738 and 739. The petition or opposition is unusually particular and specific, and ample, if true, to serve as a basis for the relief sought. The sufficiency of the affidavit for injunction is matter of no moment, as no injunction was granted until the case was heard on its merits, and only in the final judgment.

There is no dispute about the essential facts of this case. Indeed, the answer of Olaverie contains this admission: That the said note was executed by the said Mrs. Gerodias for the purpose of being delivered to respondent for the purpose of enabling her husband, V. Gerodias, to obtain the means of carrying on his trade as butcher, and was given by him to respondent for that purpose to the knowledge of his wife, and that your respondent has given said Gerodias and wife merchandise for the full value thereof.”

The question presented, therefore, for our decision is, whether a creditor of the husband, can knowingly, etc., validly take from his •debtor’s wife her note and mortgage to secure the husband’s debt to Mm?

It is hardly necessary to do more than ask the question. The law (O. O. 2398), forbids the wife to become security of her husband, or to bind herself or property for his debts. Her note, for such a purpose, in the hands of the husband’s creditor, who takes it knowingly, is utterly null and void. The act of 1855 (now articles 126,127 and 128 O. 0.) has no application to agch a case as is here presented. Claverie, the plaintiff, is the creditor of the husband, and knowingly takes the wife’s note for the amount thus due him, in contempt of the prohibitions of the Code, and without the the slightest pretense that he was ignorant of the true facts; on the contrary, judicially avowing that he took the note from her to secure the debt of the husband.

It is unnecessary to decide what would be the rights of an innocent holder of the note in a case like this, nor the effect of the judge’s authorization quoad the rights of such holder. The question is not here presented. The only question is whether a creditor of the husband, with full knowledge that the wife is becoming surety for the husband’s debt, can himself enforce against her such suretyship. He can not. To hold otherwise would be to expunge from the Code principles which are fundamental, and to permit and enforce a fraud upon the law as well as upon the wife.

The judgment appealed from is affirmed with costs of both courts.


author: Egan, J. DeBlanc, J.

text:
    No. 6488.
    Charles Marin et al. vs. Sheriff and City of New Orleans.
    Property can not be seized under a ft. fa. and sold to satisfy a judgment for taxes, when the property indicated in the judgment, writ of execution, and advertisement, is merely described as a certain number of lots, in a certain sauare, between certain streets. Such a description is too vague to identify the property.
    AVrits of fieri facias, issued under a judgment for taxes, are not returnable within, the delay prescribed for ordinary writs of ft. fa., but remain in force until satisfied, or ordered to be returned by competent authority.
    The purchaser of property against which no debt for taxes is registered, buys it free from all lions for taxes. Such property: is not liable to be seized to satisfy a judgment against its former owner, for taxes which had accrued before he sold it.
    ^PPEAL from the Superior District Court, parish of Orleans. Lynch,

      Charles Louque for plaintiffs and appellants.

      8am P. Blanc for defendants and appellees.
   The opinion of the court on the original hearing was delivered by Egan, J., and on the rehearing by DeBlanc, J.

Egan, J.

The sheriff of the parish of Orleans being about to sell for the payment of taxes, alleged to be due to the city of New Orleans, certain lots of ground, the property of the plaintiffs, they enjoined the sale upon various grounds, among which are that the taxes were assessed and judgments rendered against one M. A.-Peyroux, claimed by the city but denied by the plaintiffs to have been a'former owner of the property, and that there was no registry of any tax or other lien affecting the property at the time of their purdíase and that of their vendors; that the city can not seize their property under fieri facias issued upon a judgment against a third person; that the description of the property is insufficient and not such as to determine its location, and that no notice of seizure was ever served either upon the plaintiffs or the debtor in execution, M. A. Peyroux. The several judgments were all obtained in the usual manner for the enforcement of the collection of city taxes, upon filing the tax lists, which also appear in the record, and were with a single exception all rendered as well as the property assessed against M. A. Peyroux. That exception was an assessment and .judgment against Jules Casnard, one of the plaintiffs in injunction. As the seizure in this case is of the property of the judgment and tax debtor, and is not therefore liable to the most important objections raised to those in the other cases, we will consider it first.

The judgment recognizes a “ lien and privilege” upon the property described in the tax rolls and bills or claims on file.” That description which is identical with that in the. seizure and advertisement is as follows: “Assessment district 7, square 373, between St. Ann, Main, White, Dupré — 2 corners, 9 lots 28.2 x100, 132x141, 4 126x141, 6 188x100, under the head of description of real estate. It will be at once apparent that this description is too. loose and unsatisfactory for the purpose of assessment, recognition of lien and'privilege, seizure, advertisement, or sale; and that the property could not be located or identified by it. So many lots in such a square between certain streets, without giving their respective numbers, is really no description. This objection would hare been fatal to recovery had it been urged before judgment. As it was not we can only consider it as affecting the tax.lien and the proceedings to enforce the judgment, as to which it is well taken. The plaintiff Casnard also alleges as one of the grounds of injunction that the writ had expired and was not in force when the seizure was made, and none of the forms of law had been observed in making the seizure. The writ issued on the twenty-fifth of November, 1873. The sheriff’s return shows it was “ received December 1, 1873, and levied,” but does not state when the levy took place. The return further shows that on the twenty-first of May, 1875, the property was advertised to be sold on the twenty-third day of June, 1875, and that on the twenty-third of June, 1875, further proceedings under the writ were stopped by injunction. Nothing is said in the return of the sheriff having returned the original writ and retained a copy, nor does any copy or other subsequent writ appear in the record. We think the injunction must be sustained on these grounds also, and that there was no valid subsisting seizure, and could be no valid sale of the property of Jules Casnard under the judgment against him. All the other assessments and judgments, 'as before stated, were against M. A. Peyroux, claimed by the city to have been a former owner of the property seized. Equal or very nearly equal looseness and insufficiency in the description of property pervades them also, and the proceeding under them; but without reference to this and other grounds of objection and injunction, it suffices to say that the record fails to disclose any registry of the tax list or other registry to preserve the tax lien or even of the judgments against Peyroux, and that the city can not proceed under execution against him to seize the property of the plaintiffs.

It is therefore ordered, adjudged, and decreed that the judgment of the court a qua be annulled, avoided, and reversed, and that the injunction sued out in this ease be perpetuated in favor of all the plaintiffs, except Jules Casnard, and that it be also perpetuated in his favor so far as affects the particular seizure complained of. It is further ordered that the-défendants pay the costs of both courts.

On Rehearing.

DeBlanc, J.

Our attention has been called to sec. 8 of act No. 85 of 1858, which provides: “that no alias or pluries writs of fieri facias shall be issued in any case of judgment and execution for taxes, but the first writ shall continue in force until finally satisfied, unless ordered to be returned by competent authority.”

The counsel representing the city contends that the terms of that law are plain, and that the first writ remains in force until satisfied or properly returned. In this he is right,-and our former opinion, based on the general law regulating the return of such writs, is hereby-amended, and — -in this respect — made to conform with the 8th section of the act of 1858.

“ Registry, it is said, is the only notice of title the assessors must heed.” Reference to the public archives is one of the means of ascertaining the title to and description of immovables subject to assessment, but it is not the only one. The law is imperative: the assessor must— by diligent inquiry — ascertain the names of all the inhabitants of their respective parishes, whether taxable for licenses or for property, or on both, and also all the taxable property within the same.

Rev. Statutes, see. 24.

In this case, the property seized for taxes was not seized from the real owners, nor for taxes due by them, but under a judgment obtained against another party, and without notice to those who — at the date of and before any attempt to execute that unrecorded judgment — held a clear and valid title to the property levied upon.

Nor is this all: .in its assessment, the description of the property is so loose, incomplete and defective, that — under a sale based on that assessment — no title could have been divested, no purchaser placed in possession of the property now owned and possessed by plaintiffs.

The counsel for the city contends that the conveyance from the former to the present owners of the property so assessed was made before and without payment of the taxes due on the transferred property, and that no one should be allowed to ask relief from taxes by virtue of a conveyance made contrary to the provisions of a prohibitory law. The answer to this is that the record does not disclose any registry of the tax-list or other registry to preserve the tax lien.

It is, therefore, ordered that our first decree remain undisturbed.


author: Manning, C. J. DeBlanc, J.

text:
    No. 6890.
    The State vs. Alfred Simien.
    The facts set forth in the affidavit of a party accused of a crime, in support of his motion for a continuance, are, for the purposes of the motion, to be taken as true. They can not be traversed, or contradicted by counter affidavits, or other evidence.
    When the confessions of a prisoner to the committing magistrate have been reduced to writing, but on being offered in evidence on the trial of the accused, are, on his motion, rejected on account of defects of form in the writing, his voluntary declarations to the magistrate may be proved by parol.
    To warrant a conviction on circumstantial evidence, it is necessary that the circumstances should be of such a nature, and so related, as to leave no reasonable doubt that the accused is guilty of the offense with which he is charged. It is not necessary that the circumstances should produce that positive conviction which would flow from the testimony of a reliable witness,
    APPEAL from the Eighth Judicial District Court, St. Landry parish. Hudspeth, J. Trial by jury.

      H. N. Ogden, Attorney General, for the State.

      Lewis & Bro. for the defendant.
   The opinion of the court was delivered by

Manning, C. J.

The defendant was indicted for stealing a cow. He applied for a continuance, and made affidavit that “Madame J. B. Simien, a competent and .material witness in his behalf, is absent without his consent or procurement, and that he will not be able to procure her attendance at the present term of the court; but he expects to procure her attendance at the next ensuing term. He represents that a short time previous to the institution of this prosecution he had purchased from Madam Simien a two-year-old heifer.- He further represents that he can not sufficiently establish the same fact by the witnesses in attendance upon the trial, or by other witnesses known to petitioner.” He then states that this witness is old and sick, that the application is not made for delay, but to obtain substantial justice, and further that he has used due diligence to procure the attendance of the witness, and that she has been in attendance upon the session of the court until attacked by illness.

The State prayed leave of the court to traverse this affidavit-, alleging that the witness, who is the mother of the accused, was not sick, and the application for a continuance was a mere subterfuge to avoid a trial, and that the witness was absent by connivance with the accused. The defendant objected to hearing this on the ground that the statements made in the affidavit must be taken as true for the purpose of trying the motion, and the court overruled his objection for the reason that an affidavit for a continuance can be traversed when the judge suspects that the object is delay merely, and that the facts sworn to are not true. The first bill reserved is as-to this point.

The rule is, that the affidavit of the accused, upon which is grounded his motion for a continuance, is for the purposes of the motion to be taken as true, and no counter affidavit can be received, nor can the statements or facts it contains be contradicted by a cross-examination or aliunde proof, and this rule is of such universal acceptance that we are not inclined to modify it. Archbold’s Grim. Prac. T voL 569 et seq. The case of Allen v. the State, 10 Georgia, 85, cited by the judge a quo in support of his ruling, does not go so far, and if it does, it is opposed to the whole, current of authority.

The State offered in evidence what purported to be a voluntary declaration of the accused before the justice of the peace who held the preliminary examination, which on objection by the accused that such declaration was defective in form, was ruled out by the court. The State then offered the justice of the peace as a witness to prove by parol that a declaration had been made before him by the accused, and what that declaration was. The objection of the defendant to the admission of this testimony was overruled, and he reserved a bill to the ruling.

The declaration had been taken down in writing by the committing magistrate, but had not been properly attested or authenticated. Our law requires that such declaration shall be reduced to writing and signed by the prisoner in the presence of the magistrate and of two witnesses, or if the prisoner can not sign, that that circumstance shall be mentioned, and the declaration shall be certified with the signature of the magistrate and the same number of witnesses. Rev. Stats. 1870 sec. 1010.

The point is not decided in State v. Rodriguez, 2 Martin, 254, to which the counsel for the defendant refers us, but the court say, it may well be doubted whether, while the law so carefully provides for the safety of the accused against the great facility with which words may be misrepresented, and his declaration colored, it is not much more consonant with justice that, the testimony of the committing magistrate should be refused when- he had neglected to reduce to writing the declaration of the prisoner.

In the present case, he had not neglected to reduce the examination to writing, but the writing was not properly attested or authenticated. The principle approved in Rodriguez’s case is there stated to have been decided in State v. Grove in North Carolina as preserved in Martin’s Notes. More recently the court of that State has held that though the examining magistrate, before whom a prisoner charged with felony is brought, does not reduce the examination to writing, as it is his duty to do, yet evidence may be given of such prisoner’s confessions at the time, but to render such evidence admissible, it must appear that the committing magistrate did not take down the examination in writing, or that the same is lost. State v. Parish, Busbee Rep. 239. So also in Mississippi, where a justice of the peace took the confessions of an accused in writing at the time they were made, it is erroneous to allow the justice to testify of these confessions from recollection when the non-production of the writing is not accounted for. Peter v. the State, 4 Smedes & Marsh. 31.

Neither of these cases is like the present, for the magistrate did take the declaraticn in writing, and it is not lost, but was produced and rejected on objection by the accused. Our statute providing- for the declarations of an accused person to be taken down in writing is similar to those of other States, and they are all either copied.from or assimilated to the statute of Philip and Mary, which first broke d^wn the rule of the common law in England, until then inexorable, that no examination of the prisoner himself was permissible. But before the passage of that statute, the confessions of a prisoner, when made under circumstances defined by the law, were admissible. We hold that when declarations of a prisoner to the committing magistrate have been reduced to writing by the magistrate, and tlie written examination is offered by the State, and upon objection by the prisoner of its informality, it is held inadmissible by reason of irregularity, parol evidence is admissible to prove what he voluntarily disclosed. 1 Greenleaf’s Ev. | 227.

The third bill reserved was to the refusal of the court to charge that before the jury can find a verdict of guilty, the meat found in his possession must be identified as the meat of the cow described in the indictment, and the State must prove that it was stolen by the accused — that he can not be called on or required to account for the meat found in his possession until the State proves that the meat so found was a part of the cow described in the bill of indictment, and that it had been stolen— that if the meat found in his posséssion was stolen property, the accused is not bound to account satisfactorily for his possession of it, but is only required to raise a reasonable doubt whether he had come by it hónestly.

The judge properly refused to charge in this sweeping language, which was calculated to mislead the jury. He did charge that the jury may convict upon circumstantial as.well as direct evidence, but if the former, great caution should be used, and that if, assuming all to be proved that the evidence tends to prove, any other hypothesis than the guilt of the accused is consistent with that proof, then it is insufficient to convict — that the State must prove all the facts necessary to establish the guilt of the prisoner, and it was for the jury to say, taking all the circumstances proved together, whether the accused had or had not raised a reasonable doubt of his guilt — that the true test is, not whether the circumstances proved produce as full conviction as the positive testimony of a single credible witness, but whether they produce moral conviction to the exclusion of every reasonable doubt. He read the passages in Archbold to the jury where this,test, and the manner of its application, is explained and elucidated. Crim. Prac. 1 vol. p. 434 marg. p. 134 Waterman’s note.

No more correct exposition of the law could have been given, and it was especially appropriate to elaborate it by putting the proposition in different forms as enunciated in different eases, because of the ease with which jurors are misled upon the matter of a conviction upon circumstantial evidence alone.

The first point having been ruled adversely to the accused, and improperly thus rúled, it becomes necessary to reverse the judgment, and remand the cause. Therefore

It is ordered and decreed that the verdict of the jury is set aside and the judgment rendered thereon is reversed and annulled, and the cause is remanded to the lower court.for a new trial.

Dissenting Opinion.

DeBlanc, J.

There 'are circumstances under which the sworn application of a prisoner for a continuance may and should be traversed, on motion of the State Attorney and with the leave of the court. Otherwise, and particularly in the country parishes, where the jury sessions are held at long intervals, the administration of justice in criminal matters, shall be — if not entirely defeated — at least indefinitely checked and' suspended by an unbroken succession of unassailable affidavits.

If though manifestly false, the sworn statement of a murderer, a. thief or a perjurer must be taken as true, at what term of any court, could they or either of them be tried, unless by their consent? Would they not, at every term, -unhesitatingly swear to any fact necessary to postpone and avoid a dreaded trial — to the materiality of the evidence of a parent, a brother, a friend, an accomplice — the cause of whose absence, on the day fixed for the trial, ceases to be a secret to any one,, as soon as the affidavit is read.

Which of the prisoner’s rights could be either curtailed or impaired by allowing the prosecutor to traverse his suspected declaration? Would it deprive him of compulsory process for obtaining witnesses in his favor, or of the privilege of meeting those witnesses face to face ? If, to entitle him to the craved continuance, there is a just, a reasonable, a real cause, the traverse would establish the existence of that cause: if not, the course of justice would not be impeded by a mere technicality, destructive of the interest of the State and of society, useless to those who swear to what is true, useful to those alone who add a perjury to the crime, for the alleged commission of which they are prosecuted.

To test the propriety and justice of a rule which has so long been adhered to, let us suppose an extreme case. — for instance, that a prisoner has sworn that Frank is one of his material witnesses — that he was cited, but could not be found — that he is absent from the parish, &c.— and that, on hearing the affidavit read, the clerk and the sheriff were to rise in front of the bench, and inform the court, the first — that no witness of that name was cited — the other, that the unnotified and desired witness is in court, leaning on the prisoner’s box; would the judge answer I am bound, by an inflexible rule, to believe the affidavit, and to disbelieve the clerk, the sheriff, the record and my own eyes ? Assuredly not.

In regard to applications for a continuance, far from being restricted, the discretion of the judge should be as enlarged as it can properly be, without affecting the constitutional privileges of the prisoner, or reducing those liberal guarantees which should surround his trial. Unless the too rigid rule which prevails in the other States of the Union be slightly bent, in so far only as it impedes the legitimate action of our courts, and so modified as not to embarrass the execution of our laws, the inevitable affidavit shall ever be held up as a shield between the criminal and the sentence, the crime and the penalty, and — beyond the limits of this city — our courts shall be almost powerless to even try, much less to' check or punish any violation of our laws.

For this reason, I respectfully dissent from the opinion of my associates.


author: Manning, G. J.

text:
    No. 6843.
    The State vs. Jacob Thomas.
    The words “against the peace and dignity ol the same” need only conclude those averments in an indictment which are necessary to perfect it as an indictment. The words need not conclude a recital of facts following the essential averments, inserted merely to provide against an apprehended plea of prescription.
    Where a party has been indicted and convicted of shooting with intent to murder, and on appeal this court sets the verdict aside, and orders the custody of the accused until the finding of a new bill, the plea of prescription of one year, on the ground that the new bill was not found until after a year from the commission of the offense, will not be maintained.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana. Mc-Vect, J.

      H. N. Ogden, Attorney General, for the State.

      W F. Kernan for the defendant.
   The opinion of the court was delivered by

Manning, G. J.

The defendant was convicted of the offence of shooting with intent to murder, and sentenced 'to three years hard labor, from which he appeals. Two errors are assigned in this court; 1. That the indictment does not conclude,‘ against the peace and "dignity of the same."’ 2. The plea of prescription should have been sustained.

The indictment after charging the commission of the offence in the usual formal manner concludes, ‘ contrary to the form of the statute of the State of Louisiana, in contempt of the authority of said State and against the peace and dignity of the same.’ Then follows the statement that a bill of indictment had been previously found, and a trial had under it resulting in a verdict of guilty, which was set aside on appeal, with instructions from this court to hold the defendant in custody to await the finding of a new bill, all- of which recitals were made to shew that a bill had been found against the defendant within the year.

The objection of the defendant’s counsel is that these recitals vitiate the indictments because they are its concluding words instead of the phrase, ‘against the peace’ etc. This is not correct. The indictment not only contained the sacramental phrase, but really that phrase concluded it, that is to say, that phrase concluded all the 'necessary averments to make the indictment complete. What followed was not the indictment proper, but a recital of what had previously taken place and which was made to take the offence out of the statute of limitations. The prosecuting officer had to repel the plea of prescription in that way. Bishop’s Grim. Proc. 1. vol. sec. 405.

2. An indictment for this offence was found against the defendant ■and tried within one year after its commission. On appeal the verdict was set aside. The accused was held in custody as ordered by the appellate court for the purpose of awaiting the finding a new bill, and the new bill, being that under which he was convicted and prayed this appeal, was not found until a year had elapsed from the commission of the offence. The defendant’s counsel urges that the plea of prescription should prevail, and cites authority to shew that where the State has entered a nolle prosequi and the new prosecution commences beyond the year, or other time of prescription, the plea must prevail.

The State did not enter a nol. pros, in this case. There was not a voluntary discontinuance of the prosecution. There was a trial and the verdict and sentence of that first trial were set aside by this court, and very shortly thereafter the new prosecution was commenced. While fully admitting the correctness of the rule invoked by the defendant, that a plea of prescription will prevail against a new prosecution instituted after the lapse of the time fixed by law for its commencement, when the former prosecution has been terminated by a nolle prosequi on the part of the State, the same consequences do not follow when the State did not fail to prosecute, but on the contrary proceeded to trial and obtained a conviction of the defendant. Tha lower court properly overruled the plea of prescription. State v. Walters, 16 Annual, 400.

Judgment affirmed.