text:
    No. 10,865.
    J. M. Billgery et al. vs. L. Arnault, State Tax Collector.
    The plaintiff must prove his alleged ownership of the property advertised for the payment of taxes to enable him to maintain the injunction and haye the taxes canceled bearing on the property.
    The title to part of the property was annulled by judgment.
    To escape payment of the tax on the part to which they have no title, they can not maintain the position that their purchase of the judgment has had the effect of reviving the title it annuls.
    By buying the judgment to. which they were parties, and which had the effect of settling their indebtedness, they acquiesced in its correctness.
    With reference to property not affected by the judgment and owned by plaintiffs:
    The Article 123 of the Constitution of 1868 required the timely recordation of all' mortgages or privileges to malre them effectual against third persons.
    PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      F. Miehinard for Plaintiffs and Appellants.

      Wynne Rogers for Defendant and Appellee.
   The opinion of the court was delivered by

Breaux, J.

Petitioner, as tutor and individually, has obtained an injunction restraining the defendant State Tax Collector from selling their property for the State taxes (alleged as due) for the years. 1869, 1871, 1872, 1873, 1874, 1875, 1876 and 1878, under the provisions of Act 82 of 1884.

They allege that these properties were purchased by the late Joseph Billgery, from whom they inherit, at a sheriff’s sale, on the 29th and 30th of September, 1874, under execution issued on a judgment for city taxes of 1873.

That at the date of the purchase none of the privileges or mortgages securing the claims of the State were recorded in the Mortgage Office, as at the time provided, in order to affect third persons, and that the assessments in the name of Francois Lacroix, subsequently to the adjudication, are illegal, null and void.

That the amount for which the property was adjudicated was ample to pay the claim of the State, at the time, had legal notice been given of their existence.

Plaintiffs plead prescription of three, five and ten years.

From-a judgment rejecting their demand, and dissolving their injunction, plaintiffs appeal.

The-plaintiffs are in error in alleging that the late Joseph Billgery bought at sheriff’s sale, in 1874, all the property advertised for taxes.

There are twenty-one different descriptions in the deed of 30th September, of that year, numbered respectively from one to twenty-one, inclusive.

Of these six are advertised to be sold for taxes, viz.: 10, 11, 12, 13, -18 and 19 of the advertisement annexed to plaintiff’s petition.

No. 19 was not one of the lots in the transfer of 30th September, 1874, and the records do not disclose that it was, at any time, transferred to plaintiff’s author, although it is described in the judgment in favor of Parker, administrator, as property adjudicated September, 1874.

On the 1st day of July, 1875, Francois Lacroix, the tax debtor, mortgaged part of the property to Billgery, adjudicated to him (Billgery) at sheriff’s sale on 30th September, 1874.

Two of these properties, 4 and 13 of the act of mortgage (Nos. 2 and 5 of the sheriff’s deed, and 11 and 12 of the advertisement for tax sales) were thus mortgaged to secure $5500.

There were other lots included in the deed of mortgage not at all involved in the tax issues of this case.

In July, 1875, Joseph Billgery being dead, on the petition of E. T. Parker, as administrator of the succession of Francois Lacroix, a judgment was rendered in favor of the plaintiff decreeing the said succession to bo the owner of the lots of ground and improvements described in nine different descriptions in the petition.

Of these lots the first is advertised to be sold and is No. 18 of the advertisement.

The seventh also, and is No. 10 of the advertisement.

The second also, and is No. 11 of the advertisement.

The fifth also, and is Nos. 12 and 13 of the advertisement.

The eighth also, and is No. 19 of the advertisement.

As described in the judgment, lots 3, 4, 6 and 9, the title to which is annulled by said judgment, are not advertised and no taxes are claimed on them.

In the petition in the case of Parker vs. Jos. Billgery, the administrator prayed for a judgment setting aside and annulling the adjudication made September, 1874. This was avoided, the adjudication was not entirely annulled, but the Court decreed that plaintiff should recover the properties last described. The judgment does not refer to the remaining property adjudicated nor to the adjudication sought to be annulled.

In the j udgment credit was given to the plaintiff Parker, adminis - trator, for the rents of the property from thejday of the said adjudication.

Credit was given to the defendant for the sum paid by the adjudicatees to the sheriff, as the'price of adjudication due for the taxes paid.

After allowing the proper credits the balance was against the heirs of Billgery in the sum of $999.75, which they were condemned to pay.

In August, 1879, the defendants in said case, who are the plaintiffs in the present case, bought the judgment which had been rendered against them and which recognized the title to the nine properties before mentioned to be in the succession of Francois Lacroix. They became the owners of the right of the plaintiff in that case as established by the judgment they bought.

The purchase price, when Billgery became the owner at the sheriff’s sale in 1874, for the payment of the city taxes, was $2474. In allowing the credits before mentioned the price of the said adjudication and the taxes were included.

The plaintiffs are the owners of a judgment decreeing that they. are not the owners of certain described property and that they are indebted in a certain sum which they have settled by buying the judgment.

Being parties in thus buying they have acquiesced to the terms of the judgment in such a manner as to preclude them from defeating ■the taxes previously assessed.

'They can not be creditors and debtors of the same amount in one judgment. Eastin vs. Dugas, 4 L. 399.

Two of the properties having been mortgaged by Lacroix to Billgery in 1875 make it evident that these parties did not attach great importance to the title that the latter had acquired by the adjudication made to him.

Plaintiffs urge that an appeal was taken by them from the judgment they bought, and that it is pending at this time.

There is such an appeal in this court which remains undisposed of, ‘for the reason that the defendants and appellants have become the •owners of the judgment, and further proceedings are no longer possible.

The titles to 10, 11, 12, 13, 18 and 19 of the advertisement have been annulled by the judgment before mentioned; 19 never was plaintiffs’ property.

The records do not disclose that Nos. 3, 4, 5, 7, 8, 9, 15, 16 and 17 ever was the property of plaintiffs or their author. They are, therefore, without interest as to these. Lot 4 of the adjudication, -and 14 of the advertisement, is in the name of plaintiff’s author, and all taxes of 1869, 1871, to and including 1877, are claimed.

The same is true of lot 6 of the adjudication and of the advertisement, with the exception that the delinquent list shows taxes due for 1874, 1875, 1876 and 1877.

With reference to these two properties no delinquent list was recorded at the time of the adjudication in 1&74.

Art. 123 of the Constitution of 1868 required the recordation of .all mortgages or privileges to make them effectual as against third persons. Jacob vs. Preston, 31 An. 517; 32 An. 148.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended by annulling and canceling the State taxes for the years claimed on lot 4 of the adjudication and 14 of the advertisement, and on lot 6 of the adjudication, and the same number of the advertisement, and that as to these two lots (6 and 4) the injunction be made perpetual, and the taxes claimed on them annulled and canceled.

With reference to lots 3, 4, 5, 7, 8, 9, 15, 16 and 17 of the advertisement the judgment is affirmed.

With reference to lots 10, 11, 12, 13, 18 and 19, they are to be sold for the payment of any taxes assessed and properly recorded prior to 1878.

Judgment is amended as above at appellee’s costs.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 10,955.
    Mrs. Honora McCarthy vs. Christopher McCarthy, Her Husband.
    In an appeal from a judgment which is not for money or for delivery of property, it is the function of the judge to fix the amount of the bond for suspensive appeal. When he has done so and appellant has complied with the order, alleged error in the exercise of the judge’s discretion may authorize some re lief, but is certainly no ground for dismissing the appeal.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J. _

      J. S. & J. T. Whitaker for Plaintiff and Appellee.

      Harry H. Hall for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the court was delivered by

Fenner, J.

The appeal is taken from a judgment decreeing a. separation from bed and board and dissolving the community between the parties. It is not for any sum of money nor does it decree the delivery of any property, movable or immovable. Therefore, on a timely application made for a suspensive appeal, it was the function of the judge to fix the amount of the bond to be given by appellee. He fixed the amount in this case at one hundred dollars and appellant gave bond accordingly. If it were true, as appellee contends, that the amount fixed is too small, this might authorize some relief, but it is certainly no ground to dismiss the appeal.

Motion denied.


text:
    No. 10,965.
    Berthol Barrios vs. E. H. Lacroix et als.
    The ease presents only questions o£ fact.
    A PPEAL from the Twentieth District Court, Parish of Lafourche. Beattie, J. _

      L. P. Gaillouet for Plaintiff and Appellee.

      E. A. O'Sullivan for Defendants and Appellants.
   The opinion of the court was delivered by

Fenner, J.

Plaintiff was the holder of six negotiable notes made by one W. W. Hunter, Jr., secured by mortgage and vendor’s privilege on a tract of land sold by him to said Hunter. He avers that these notes were fraudulently obtained from him by E. H. Lacroix under the false pretence that he wanted to have them examined by his lawyer, and that, if found correct, he would buy them; that he never bought the notes, but kept them and failed to return them; and, while thus in possession, conspired with Hunter to have the said notes, together with their accessory mortgage and privilege canceled and erased, and did illegally cancel them without plaintiff’s knowledge or consent.

The only defendants are Hunter and Lacroix. The first filed a general denial. Lacroix also filed a general denial, together with a special denial of the fraud and misconduct charged and an averment that he bought the notes from plaintiff at a fixed price and by a completed sale.

Judgment was rendered in favor of plaintiff, ordering the reinstatement of his mortgage and privilege, and the return of the notes, or, in default thereof, allowing judgment for. the amount thereof with recognition of mortgage and privilege.

Lacroix alone has appealed.

We have no concern with the rights of Hunter, who has not appealed, nor with possible intervening rights of third persons who are not parties. The sole question for our determination is the issue between plaintiff and Lacroix, of sale vel non. If the allegations of plaintiff’s petition be true, certainly Lacroix has no cause to complain of the judgment rendered against him.

The issue is purely one of fact. The testimony is conflicting. We have studied and weighed it very carefully. Independently of the consideration justly due to the finding of the judge a quo, we have no hesitation.in saying that the evidence, taken as a whole, leaves upon our minds an overhelming conviction that it is correct; that Lacroix never bought or owned the notes; and that his dealings with them were wrongful and in fraud of plaintiff’s right.

We might sustain our conclusion by a discussion of the evidence; but that would be useless and certainly not agreeable to defendant.

It is admitted, however, that the judgment should only cover five of the notes, and that the note maturing January 1, 1891, was validly acquired by Lacroix. The judgment must be amended accordingly.

It is, therefore, ordered and decreed that the judgment appealed from be amended by striking therefrom all that part relating to the first note for $1000, maturing January 1, 1891, and that, as thus amended, the same be now affirmed, plaintiff and appellee to pay costs of this appeal.


author: Fenneb, J.

text:
    No. 10,847.
    Thomas Butler vs. Mrs. M. O. Clarke.

      1. Whore an insolvent before his cession is the owner of certain promissory notes of a third person, which promissory notes are all separate and distinct obligations and secured by separate, distinct at d successive mortgages resting on the same piece of real property; and where the insolvent pledges these promissory notes to different creditors, the pledgee of the second mortgage note is an ordinary creditor as to the proceeds of the first mortgage note.

      2. That is, these notes be?ng different res, the fact that a creditor is the pledgee of the second niortgage note gives this creditor no preference to be paid over the general creditors, out of the proceeds of the first mortgage note.
    3. The principle recognized in our jurisprudence, that the assignor of one or several concurrent mortgage notes secured by the same mortgage is estopped from contesting his assignee’s right to be paid by-preference over the concurrent notes retained by him, is fully discussed and shown to be inapplicable to this case.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J. _

      Gilmore & Baldwin and E. T. Floranee for Syndic and Appellant:
    1. The property of a debtor is the common pledge of his creditors, and the proceeds must be distributed among them ratably unless there exist some lawful cause of preference. I?. C. 0,, Art. 3183.

      2. Where an Insolvent, prior to his cession, is the owner of certain promissory-notes made by a third person the proceeds of these promissory notes must go in.o the hands of the syndic to be distributed among the creditors ratably,unless there exist some lawful causes of preference.
    8.If any of these promissory notes have been lawfully pledged, that pledge gives to the pledgee a lawful cause of preference R. O. C., Art 5184; Art. 3221.
    4. But the privilege given to the pledgee, and the consequent right of satisfying his debt in preference to the other creditors, is strictly limited to proceeds of the movables pledged to Mm. R. C C , Art. 3157.
    5. Therefore, to be a pledge of one res gives no right to a creditor to be paid by preference out of anotherres belonging to the same debtor — i. eas to that other res the creditor is an ordinary creditor.
    6. This is true in all cases, and the fact that the different things pledged are promissory notes of a third person, secured by successive mortgages, can not affect the rule.
    7. Therefore, where an insolvent before his cession is the owner of certain promissory notes of a third person; which promissory notes are all separate and distinct obligations and secured by separate, distinct and successive mortgages resting on the same piece of real property; and where the insolvent pledges these promissory notes to different creditors, the|pledgee of the second mortgage note is an ordinary creditor as to the proceeds of the first mortgage note.
    8. That is, these notes being different res, the fact that a creditor is the pledgee of the second mortgage note gives this creditor no preference to be paid over the general creditors out of the proceeds of the first mortgage note.
    9. Particularly so, as the contract of pledge is strictijuris and can not be extended by analogy from one thing to another.
    10. In a case of this kind, the syndic of the creditors is not estopped from seeking t'-* recover for distribution the surplus of the px’oceeds of the first mortgage note.
    Singleton, Browne <& Choate for Mutual National Bank, Opponent and Appellee:
    1. Where A, as the holder of two separate notes made by 15, secured by his mortgage in favor of A, on the same property, pledges them with their accessoxy right of mortgage by separate contract to C and 1), and lie then becoxxies insolvent months afterward, neither ho nor the syndic of liis creditors can come into coixipetition with D, pledgee of the second mortgage, and claim the surplus remaining of the first mortgage after 0 has been paid the debt due him, should the px’oceeds of the property bo insufficient to pay both debts for which it had beeix pledged by A. A and B are co-debtors in solido, and good faith prevents either from competing with their creditor. Salzman vs. His Creditox*s, 2 R. 241; Yen tress vs. His Creditors, 20 An. 361; Mechanics5 Association vs. Pergxxson, 29 An. 549; Barkdull vs. Herwig, 30 An 621; Reine vs. Jack, 31 An. 860; Abney vs. Walmsley, 38 An. 590; U. C. Arts. 2175, 2178, 2179, 2645; Campbell vs. Slidell, 5 An. 274; Labouisse vs. Orleans Cotton Rope Co., 43 An. 582.
    2. The pledge by A of the notes ofB included the accessox-y right of mortgage and gave to each pledgee, so far as A and B are concerned, the right to be paid out of the entire proceeds of the real estate mortgaged, and each pledgee became owner pro tanto of each obligation, which are indivisible, and to the extent of their claims they should be paid in the order of their respective ranks by preference out of the entire proceeds of the real estate mortgaged. Thepledge of the mortgage note was practically a pledge of the real estate, and as the real estate itself has been sold to pay the debts of the pledgees, and not the notes, the latter have a right to look to the proceeds of that thing for payment! C. C. 2645, 3133, 3278, 3280, 3282; 29 An. 548; 27 An. 562; 35 An. 6.

      J. G. Gilmore for Wesbfeldt Bros., Opponents and Appellees:
    I. A transferrer of mortgage notes is estopped from competing with his transferees in the proceeds of sale of the property mortgaged. Reine vs. Jack, 31 An,,p. 859, and citations.
    II.
    Competition arising between holders of mortgage notes on the same property takes place only where the mortgage notes are of the same series. Adams vs. Lear, 3 An., p. 144; Salzraan vs. Creditors, 2 Bob. 244; Barkdull vs. I-Iorwig, 30 An. 618; Abner vs. Walmsley, 33 An. 548; Ventress vs. Creditors, 20 An., pp. 145, 359, and other authorities cited in brief. Cabn vs. Ford, 42 An.; Levy vs. Ford, 41 An. 873,
    III.
    A party is concluded from participating in the proceeds of sale of a mortgage property beyond a single mortgage where he acquires no right of subrogation to preceding mortgages. Later mortgage notes held by him are presumably retired in his favor. R. C. C. 3172 [3139]; Subrogation, Art. 2161 [2157J. Principle of above cited authorities invoked against such a party.
    IV.
    Preferences given by a debtor within three months preceding his failure are null ' and void, except where shown to be for a true and just consideration, bona fide, delivered at the time of such transaction. Rev. Stat., Sec. 1808; Black vs. Richardson & Co., 37 An. 594; Seixas vs. Citizens’ Bank, 38 An. 424.
    V.
    A subsequent mortgagee is entitled to be advanced on the proceeds of sale proportionally as intervening mortgages are perempted or retired in the interest of his transferee who had held all thepreceding mortgages. Jennings vs. Vickers, 31 An. 684, and authorities cited. 8 Rob. 435; 14 An. 587; 20 An. 264.
    A conventional mortgage between parties embraces all conventional mortgage rights on the property.
   The opinion of the court was delivered by

Fenneb, J.

The parties have agreed upon a statement of facts in this case, and although the statement is lengthy we will not endanger its completeness by abbreviation. It is as follows:

The parties to the present proceedings are:

1. Thomas Butler, plaintiff.

.2. Mrs. M. O. Clarke, defendant.

'3. The Syndic of the creditors of James Clark, appearing in the place of the provisional snydic, intervenor.

4. The Mutual National Bank of New Orleans, intervenor.

5. Westfeldt Brothers, a commercial firm of this city, intervenor.

Mrs. M. O. Clarke, a widow, is the mother of James Clarke.

James Clarke, until his cession in July, 1890, was engaged in business as wholesale dealer in coffee, in New Orleans, under the firm name of James Clarke & Co.

In June, 1880, Mrs. M.- O. Clarke was indebted to her son, James Clarke, in the sum of $4832.22, as shown by an account rendered her at the time, and which account she acknowledged to be correct before a notary public.

Mrs. M. O. Clarke liquidated this indebtedness by her own promissory note for $4832.22, dated June 1, 1880, maturing one year after date, bearing interest at 8 per cent, per annum, from date, and secured this promissory note by a mortgage dated June 14, 1880, and duly inscribed.

On July 31, 1883, Mrs. Clarke was similarly indebted to her son, James Clarke, in a second sum of $8614.79, which sum she also liquidated by a promissory note, and secured this by a second mortgage, dated August 8, 1883, duly recorded.

On December 31, 1885, she was indebted to James Clarke in the sum of $6340.75, and she gave a promissory note for that amount, and secured it by a third mortgage, dated June 28, 1886, duly recorded.

On the 1st of June, 1889, she was indebted to James Clarke in a fourth sum of $9115.71, and for the fourth time she gave to him her promissory note for a corresponding amount, and secured it by a fourth mortgage, dated September 7, 1889, duly recorded.

On the 14th of June, 1890, she was indebted to James Clarke again in the full sum of $9115.71, and she gave to the said James Clarke her promissory note for that amount, and secured it by a fifth mortgage, dated the 24th day of June, 1890, duly recorded.

The mortgages all rest on the same piece of real estate, viz., a house situated at the corner of St. Charles avenue and Fourth street, but they are all separate and distinct one from another, and secure separate and distinct obligations arising at different times.

After these promissory notes of Mrs. M. O. Clarke, each secured by a separate mortgage from its fellows, had been given by her for value received to James Clarke, they became the property of James Clarke.

On September 8, 1888, James Clarke borrowed $5000 from Thomas-Butler, plaintiff in the present suit, and gave his promissory note therefor, payable one year after date, and secured his promissory note by pledging as collateral the first mortgage note of Mrs. M. O. Clarke, dated June 14, 1880, with a face value of $4832.22, and with accrued interest at 8 per cent, per annum from date.

On February 10, 1890, Clarke borrowed from the Mutual National Bank $6300, and gave his promissory note therefor, securing this promissory note by pledging as collateral a note of Philip Thompson, for a like amount, which note was a valuable security, and worth its face value at maturity.

This note of Philip Thompson, which had been pledged by James Clarke to the Mutual National Bank, was withdrawn by Clarke on May 7, 1890, the day of its maturity, when it would have been paid if not withdrawn. Instead of this note there was pledged to the bank as collateral the mortgage note of Mrs. M. O. Clarke for $8614.79, with accrued interest at 8 per cent, per annum, the note being dated July 31, 1883, and being the second one of the notes referred to above, and secured by the second mortgage in rank. The note of James Clarke, given to the Mutual National Bank, which this second mortgage note of Mrs. M. O. Clarke was given to secure, was originally for $6300. This note of James Clarke, however, before his insolvency, was, by a payment of $4000 thereupon, reduced to $2300, so that the second mortgage note made by Mrs. M. O. Clarke, amounting to $8614.79, is now pledged to the Mutual National Bank, to secure an amount due by James Clarke of $2300. This note of Philip Thompson was withdrawn by Clarke in order to return it to Thompson, who had paid a note for the same amount, which he had received from Clarke and discounted.

On the 6th day of April, 1889, James Clarke obtained a loan from the Mutual National Bank of $5000, and gave in pledge to secure that loan the third and fourth mortgage notes given by Mrs. M. O. Clarke, amounting respectively to $6340.75 and $9115.71, both with accrued interest.

In June, 1890, James Clarke borrowed from Westfeldt Bros., of this city, §5000, and gave his note therefor, and pledged as collateral security the fifth mortgage note given by Mrs. M. O. Clarke, amounting to $9115.71.

In July, 1890, James Clarke made a voluntary cession of all his property to his creditors. The petition and schedule were duly filed in this honorable court in Division “A,” under the Number 30,763, and John R. Picton was duly appointed provisional syndic.

In September, 1890, the promissory note for $5000, given by James Clarke to Thomas Butler, which was secured by' a pledge of Mrs. M. O. Clarke’s first mortgage note for $4832.22, with accrued interest, fell due, and being unpaid, Butler, the holder of the collateral security, provoked executory process against Mrs. M. O. Clarke in the present proceedings. A writ of seizure and sale was duly issued, and under that writ the real estate so mortgaged was sold, realizing in cash $15,200.

Before the day of sale interventions and oppositions filed brought the following parties before the court :

1. The Mutual National Bank, holding, pledged to it as collateral (a) the second mortgage note of Mrs. M. O. Clarke, for $8614.79, with accrued interest, at 8 per cent, per annum, to secure a note of James Clarke for $2300; and (b) the third and fourth mortgage notes of Mrs. M. O. Clarke, to secure a note of James Clarke for $5000, the bank claiming that under these pledges it should be paid out of what remains of the proceeds of the real estate after the claim of Thomas Butler is satisfied.

2. Westfeldt Brothers, a commercial firm of this city, holding the fifth mortgage note of Mrs. M. O. Clarke, pledged to secure a note of James Clarke for $5000. Westfeldt Brothers claim the right to be paid out of the proceeds of the real estate after the bank and Butler are satisfied.

3. The provisional syndic of the creditors of James Clarke. In the place of the provisional syndic the definitive syndic now stands. The claim of the syndic is that the general creditors of James Clarke are entitled to have distributed among them the surplus that may remain on each mortgage note of Mrs. M. O. Clarke, after the note of James Clarke, that it has been pledged to secure, has been paid. Butler, by the consent of all parties, has been paid, and he and his claim are eliminated from the case.

The Mutual National Bank filed proceedings in the Civil District Court, and applied for a writ of seizure and sale on the mortgage notes held by it shortly after the proceedings instituted by Butler, and prior to the sale of the property.

The questions presented for our solution in this case arise out of conflicting rights in the distribution of the proceeds of the sale of the mortgaged property.

The syndic of James Clarke claims that all the mortgage notes of Mrs. M. O. Clarke belonged to James Clarke at the date of his cession, and passed, by his cession, to his creditors, who succeeded to all his rights therein; that the • first mortgage note passed to the creditors unaffected by any privilege except that resulting from the pledge in favor of Thos. Butler, and that, after the discharge of the debt due to Butler, the surplus of the proceeds applicable to the payment of said first mortgage note must be paid over to the syndic for the benefit of the creditors; and that the same rule must be applied in the distribution of the proceeds applicable to the payment of each successive mortgage note.

The Mutual National Bank and Westfeldt Brothers contend, on the other hand, that Clarke, being the pledgor and quasi assignor to them of the second, third, fourth and fifth mortgage notes, is thereby disabled from competing with them in the distribution of the proceeds of sale of the mortgaged property and from asserting any rights therein until the debts due them are fully paid, and that the .syndic, succeeding only to Clarke’s rights, is equally disabled.

The bank and Westfeldt Brothers rely upon the following decisions of this court, which hold, in the language of the leading case, that “ when the holder of a claim, secured by mortgage, assigns a part of it, he can not be permitted to come in competition with his [assignee, if the pledge is insufficient to pay both.” Salzman vs. Creditors, 2 Rob. 241; Ventress vs. Creditors, 20 An., 361; Mechanics vs. Ferguson, 29 An. 549; Barkdull vs. Herwig, 30 An. 621; Reine vs. Jack, 31 An. 860; Abney vs. Walmsley, 33 An. 590.

Reference to the cases will show that they all deal with concurrent mortgage notes, with debts arising from the same transaction and secured by the same mortgage. They rest upon the equity that where the holder of several notes representing the same debt and secured by the same mortgage assigns part of the notes, and with them the mortgage securing them, and has received the full value, he should not be permitted by any act of his to prevent his assignee from recovering the sum which he has paid.

The doctrine rests upon the authority of Troplong and Grenier.

Troplong expressly confines it to the case stated by him, as follows: “Pierre is creditor of Jacques, for 50,000 francs, the price of an estate which he has sold. Pierre assigns a part of this credit to Sempronius, who pays him therefor 24,000 francs. The immovable being seized and sold produces only 40,000 francs. Ought Peter and Sempronius to concur and bear the loss proportionally, or -should Sempronious be paid by preference ? ”

He concludes that concurrence would be unjust on the ground that “ it would be altogether contrary to good faith that the vendor of part of the debt ceded, after having received the price, should ■come in, by his own act, to prevent his assignee from recovering the .sum disbursed by him.” 1 Troplong Priv. and Hyp. No. 367.

Troplong refers to Grenier as holding the same view, and we find that Grenier assimilates the price to a part payment of the debt operating a quasi subrogation of the assignee to the rights of the assignor in the thing ceded and its accessories to the extent necessary to secure his reimbursement, and he says: “In such a case, the subrogor could not be heard to claim payment of the amount remaining due to him until his subrogees had received the full amount of their subrogations, at least in absence of an express convention to the contrary.” 1 Grenier, Hyp. No. 93.

It thus conclusively appears that the authorities have confined this doctrine to cases arising between the assignor and assignee of part of the same debt secured by the same mortgage.

We are now asked, for the first time, to extend the same principle to the case of an assignor who, holding distinct credits secured by different and successive mortgages on the same property, has transferred one of the credits inferior in rank, and to hold that by ■such transfer he has not only practically subrogated the assignee to all his rights in the credit and accessory mortgage transferred, but in all other mortgages held by him on the same property.

We have considered this subject very maturely, and from every point of view suggested in the able and ingenious briefs of counsel, but we can discover no principle of law which would justify the extension claimed.

The debts represented by these several mortgage notes, and the several mortgages securing them, are as distinct as if they were the notes of different persons secured by mortgages on different properties.

Clarke did not stand in the case of an assignor of part of a claim secured by a mortgage, and who is contesting his assignee’s right to be paid out of the proceeds of that mortgage by preference over himself as holder of the other part of said claim. On the contrary, the syndic concedes that each assignee is entitled to be first paid the full amount due him out of the whole avails of the mortgage securing it. But he says: “ I hold a distinct claim against our common debtor, secured by a different mortgage, which I have not assigned or pledged to you in any manner, and on which you have no rights, legal or equitable. I yield your right to be paid by preference out of the proceeds applicable to the mortgage, which I transferred to you; but you can not interfere with my rights as holder of a different credit secured by a different mortgage, which I never assigned to you, in whole or part.”

Not only are the facts of the instant case entirely different from those in which the principle invoked was applied, but the reasons which supported the application in the latter are entirely wanting in the former. What possible right, legal or equitable, can the assignee of one debt and mortgage acquire upon or against a distinct debt and mortgage not assigned ?

Or if we were to adopt the analogy to subrogation suggested by Grenier, we can understand that the party who had made a part payment with subrogation of one of these mortgage notes would be subrogated to the rights of the holder in the note paid, and in the mortgage securing it: but would any one contend that such subrogation extended to his rights in a distinct debt secured by a different mortgage ?

We can discover no reason why the holder of distinct claims secured by different mortgages even on the same property can not assign one of them without waiving or prejudicing any of his rights as holder of the others.

In this case all the assignments are made by pledges. The first mortgage note was never pledged to any body but Butler. He would have had the right to enforce his pledge either by selling the note itself or by foreclosing the mortgage. Suppose he had pursued the former course and had sold the note for a price exceeding the debt due to him, to whom would the surplus have gone? There is no plausible ground for disputing that it would have gone to Olarke or his syndic, and the purchaser of the note would undoubtedly have been entitled to assert all his mortgage rights. Can a mere difference in the mode of enforcing this pledge affect Clarke’s right to the surplus of the avails of the thing pledged over the debt for which it is pledged?

The bank and Westfeldt Bros, no doubt feel themselves aggrieved in not collecting the whole of their claims; but we are bound to apply the law and, moreover, to consider the rights and interests of other creditors.

Under our law a man’s property is the common pledge of his creditors. This common pledge the law permits, in certain eases, to be invaded by special preferences, such as privileges, pledges and mortgages, when constituted according to law. Nevertheless such permitted preferences are in derogation of the rights of the common pledge and are to be strictly construed and not extended beyond their plain legal meaning and effect.

We think, in this case, that each one of these pledges has acquired no preference except to the extent of the debt secured by each pledge and to be paid out of the proceeds applicable to payment of the particular note pledged; and that the surplus of the proceeds applicable to the payment of each pledged note, after paying the debt secured by that particular pledge, must be paid over to the syndic for distribution among the mass of the creditors.

The above views eliminate the particular contentions urged by Westfeldt Brothers against the transactions of the Mutual National Bank. The Westfeldt Brothers have no rights here except upon the particular res pledged to them or its avails. The thing pledged to the bank was an entirely different res, and as it has never been extinguished and as the proceeds applicable to its satisfaction must go either to the bank or to the syndic, Westfeldt Brothers have no interest in raising questions as to the validity of the bank’s rights therein, which the syndic has not propounded.

It-is, therefore, ordered and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now adjudged and decreed that the opposition of the syndic of the creditors of James Clarke be maintained, and that the fund in the hands of the sheriff, after paying the claim of plaintiff, Thomas Butler, the State, city and drainage taxes, and the costs of these proceedings, be distributed in the following order:

1. i’o the syndic of James Clarke the amount remaining due on the first mortgage note, after paying the claim of Butler.

2. To the Mutual National Bank the sum of |2300, with 8 per cent, interest from August 4, 1890, till paid.

8. To the syndic the amount remaining due on the second mortgage note, after deducting the foregoing payment to the Mutual National Bank.

4. To the Mutual National Bank the amount of the third mortgage note.

5. If any funds remain, to the Mutual National Bank the amount of the fourth mortgage note.

6. To Westfeldt Brothers the amount of the' fifth mortgage note.

And it is further ordered that the opposition of the Mutual National Bank, and of Westfeldt Brothers, in so far as they conflict herewith, he rejected.


author: Watkins, J.

text:
    No. 10,961.
    The State of Louisiana vs. Abraham Donald et als.
    In the allowance or rejection oí new trials, particularly in eases resting upon the sufficiency of the evidence administered at the trial to justify a conviction, much reliance must be placed upon the discretion of the trial judge, and his ruling will not be reversed except in very clear cases of error.
    APPEAL from the Twenty-sixth District, Court Parish of Jefferson. Rost, J. _

      W. H. Rogers, Attorney General, for the State, Appellee.

      H. N. Gautier for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

Appellant, Andrew alias Ben Ward, was jointly indicted with Donald, White and Dixon, for the murder of Cornelius Langman. There was a joint trial, and all the accused were acquitted except Ben Ward, who was found guilty of manslaughter, and after an ineffectual attempt to obtain a new trial he was sentenced to five years at hard labor, from which sentence he appeals.

Appellant’s contention is that the death was inflicted by a gunshot wound, the ball entering the cavity between the seventh (Yth) and eighth (8th) ribs, “ranging in a downward direction of about 43 degrees.”

“ That the only shooting done by the accused was while he was standing at the foot (or base) of the levee, some fifteen feet below the deceased, who was standing on the top of the levee” — and from that hypothesis defendant’s counsel argues the necessary incompatibility therewith of the verdict, and assigns this a conclusive reason why the trial judge should have granted the defendant a new trial.

The foregoing constitutes the purport of defendant’s application! for a new trial, and, as supporting that statement, there was annexed to his bill of exception the official certificate and proces verbal of the coroner.

Resting upon this certificate and the affidavit of the accused for the governing facts of the case, there iss some plausibility for the defendant’s contention; but in the record we find the affidavits of three, at least, of the eye-witnesses of the homicide, which are wholly at variance therewith.

One of these affiants says that in the course of a quarrel between several persons, whose names are given, “ I left them. Neally (Langman) ran over his wife, knocking her down while doing so, with Abraham Donald and Andrew Ward pursuing him with drawn pistols shooting at him all the time. * * * Ward and Donald fired pretty near all the chambers of their revolvers.”

Another of the affiants states that “ Neally Langman came down, the levee toward Andrew Waid with a drawn pistol. Some firing took place there. I can not say who fired first. Andrew Ward had his pistol drawn. I am certain they were both shooting at each other.

“ Andrew Ward pursued Langman until he fell against his wife, and then jumped up and ran again, with Ward behind him, from the pigeon house to the store, where he fell. There Ward hit at Lang-man with the butt end of his pistol while running by. He then had both revolvers in his hands, having taken Langman’s pistol from him,” etc.

Another affiant states that “ Ward ran down the levee, and as he reached the base of the levee, he half-wheeled around and Neally (Langman) went toward him — then they were shooting at arm’s length. When Neally had fired his last shot he broke and ran, and Ward and Donald ran after him. Neally fell on his wife, and the others stumbled over him. Then Ward took the pistol away/from him and hit him (Neally) over the head with the butt.”

This testimony puts a wholly different phase on the affray from that stated in defendant’s motion. The judge did not assign any reason for his overruling the motion. But on the foregoing statement we are of opinion that his ruling was manifestly just and correct.

Judgment affirmed.


author: McEnery, J.

text:
    No. 10,950.
    The State of Louisiana vs. William Jackson.
    In order to excuse a homicide the accused must be under the belief that his life is in danger, or he fears some great bodily harm may be inflicted' upon him, and said belief must be the result of some overt act or hostile demonstration made by the deceased against the accused.
    In attacking a witness’ general character for infamy, the investigation can not be restricted so as to confine it to particular acts or to particular associates. It must be as to his whole conduct and character, so as to establish such moral depravity that no one would be justified in believing his sworn statement uncorroborated.
    Whether a witness who was not connected with the homicide; who was with the deceased at the time of the homicide, was or was not a dangerous character, is immaterial, and no evidence of his character in this respect is admissible.
    Pear that one’s life is in danger will not excuse a homicide in the absence of an overt act or hostile demonstration on the part of the deceased.
    When the judge charges substantially what the defendant requires in a special charge, it is sufficient.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Lewis, J. _

      W. H. Rogers, Attorney General, for the State, Appellee.

      Chas. W. Du Roy for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted for murder, tried and found guilty without capital punishment, and sentenced to imprisonment at hard labor for life, from which judgment he has appealed.

The first bill of exceptions was taken on the refusal of the trial judge to allow the following question to be propounded to a witness: “ Was Ivory Guidry, the deceased, a man capable of carrying ■out such threats.”

The trial judge, in his statement appended to the bill, says: “That the accused shot the deceased down in the public road and without even the slightest effort on his part to máke an assault upon the accused. The accused watched deceased while passing the accused’s house in the public road and fired twice across a fence about ten paces distant, killing deceased almost instantly, while deceased was standing still, being halted by accused and making no demonstration whatever against him.”

It appears from the statement that the deceased made no hostile demonstration against the defendant. It is immaterial, therefore, what were the previous threats of the deceased against the defendant.

They are inadmissible unless a proper foundation is first laid ■ by ■evidence of some overt act or hostile demonstration made by the ■deceased at the time of the fatal assault upon him.

The ability of the deceased, therefore, to execute threats when he had shown no intention by any overt act to carry them out, is inadmissible. State vs. Demareste, 41 An. 617; State vs. Paterno, 43 An. 514.

There was no demonstration made by the deceased which justified the defendant in believing that his life was in imminent danger. State vs. Cosgrove, 42 An. 755.

The second bill was reserved to the ruling of the trial judge in refusing the following question to be propounded to the witness, Moreau, in relation to the character of. Jeanbette, a witness for the prosecution: “Do you know the man Jeanbette, and is he not a man who lives and associates with criminal people?”

“ Isn’t it a fact that his principal associates are lewd and abandoned women?”

This question was asked for the purpose of impeaching the witness’ general character.

The District Attorney urged several objections to the questions, any one of which we think was good.

The following objections are conclusive:

1. The question was leading, suggesting the answer, and that the general reputation of the witness only can be inquired into.

The question was leading, and, therefore, properly ruled, out.

In the case of the State vs. Parker, 7 An. 83, this court had occasion to review the law, and to determine the extent to which the investigation of the witness’ character can be gone into. In that case the question was as to the infamous character of the witness, which was compounded of a notorious character for acting falsely and fraudulently, of extorting money by force and cheating from the unwary and feeble, and of living among low and abandoned women. That he was idle, dissolute and profligate, and had no means of support, and no other means of obtaining money than those set forth. The witnesses swore that although they could not say that the impeached witness had formed any character as to lack of truth, and was false in oath and words, yet from his vices and general bad character they believed he was unworthy of credit, and they would not believe him under oath.

In the opinion this court said: “ All agree that a man proved by respectable testimony to possess the character described in the bill of exception under consideration would not be entitled to equal credit with a pure and virtuous witness; yet such a man, unless proof is allowed, would stand as fair before a jury as one of the most spotless character.”'

The inquiry, therefore, must be into the general character of the witness, and not permitted to run into collateral facts and particular inquiries as to any particular act or any particular associates.

In other words, the inquiry into the general character must be of that kind which will show such moral turpitude in the witness that, no one would be justified in believing his uncorroborated statement.

The inquiry into the witness’ character in the instant case did not tend to show that he was infamous, but that his associates were-taken from a certain class of people. The inquiry was restricted, and, therefore, did not come within the reasons stated in the case quoted.

Biil No. 3 was taken to the exclusion by the judge of the following question to a witness:

“ Was Ivory Guidry, deceased, a dangerous man, and was he a man capable of carrying threats into execution ? ”

The reason stated in sustaining the ruling of the trial judge on bill No. 1 will apply to this.

Bill No. 4 was reserved to the question, “What is Jeanbette’s general reputation for peace and quiet ? Isn’t he a notoriously dangerous man ? ”

This question is also leading, and objectionable on that account.

Jeanbette was a witness. He was in no way concerned in the homicide, and, therefore, the question was irrelevant.

Bill No. 5 is to the ruling out of threats made by the deceased prior to the homicide. There was no overt or hostile demonstration made by the deceased; therefore, the testimony sought to be introduced was properly rejected. This bill has also been disposed of by the reason given in sustaining the ruling of the trial judge on bills 1 and 3.

Bill No. 6 was taken to the refusal of the trial judge to charge the jury as requested by defendant.

The charge requested was : (1) “ If a man reasonably and fairly believes his life is in imminent danger, he is excusable in killing his adversary, although it afterwards appear that there was no danger.”

The imminent danger in which the defendant imagines or believes himself to be must result from some act of the deceased. It is then a question of fact for the jury to find whether the demonstration was of such a character as to impress the accused with a belief that his life was in danger, or that he feared great bodily harm would be inflicted upon him.

The law does not excuse a homicide, coolly planned and deliberately executed, committed when the deceased was making no demonstration whatever, and was unarmed, on the public road.

(2) “That if the jury had any reasonable doubt on any material point of the case, they were bound to give the benefit of such doubt to the accused.” Instead of the charge requested by defendant, the trial judge instructed the jury “ that they must be satisfied beyond a reasonable doubt that the State had made out its case as to every constituent element of the crime charged, each element thereof being fully explained.”

The charge was fair, and a concise statement of the law. The defendant had no cause to complain of it.

Judgment affirmed.


author: Fenner, J.'

text:
    No. 10,975.
    The State of Louisiana vs. S. Deffes.
    The words “ six blocks,” in Act No. 116 of 1888, have the same meaning as “ six squares” in the former Act No. 100 of 1878. They mean standard squares or blocks of 300 feet each, with the addition of fifty feet for each intervening street, making 2100 feet by the nearest walking route, regardless of the number of actual squares, short or long.
    APPEAL from the First Recorder’s Court of the City of New Orleans. Bringier, J.

      Henry Benshaw, Assistant City Attorney, and Carleton Hunt, City Attorney, for Plaintiff and Appellee.

      Branch K. Miller for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.'

The case presents a single question, viz., as to the meaning of the words “six blocks, ” as employed in Act. No. 116 of 1888, which provides: “No private market shall be established within a walking distance of six blocks from any public market, the said distance to be interpreted as meaning that represented by six blocks in a walk from the public market to a private market.” Whatever difficulty the question might present if it were res nova, we regard it as settled by our decisions already rendered.

In several cases we held that the words “ six squares,” as employed in the former Act 100 of 1878, on the same subject, meant standard squares of 300 feet each, together with the width of the intervening streets of fifty feet each, making a uniform distance, by the shortest walking route, of 2100 feet. State vs. Berard, 40 An. 172; State vs. Barthe 41 An. 46; State vs. Schmidt, Id. 27.

In a later case we had before us the new Act of 1888 and the ordinance of the city based thereon, No. 4145 C. S.; and we then said, after referring to those decisions: ‘ Thus we have it effectually proved by these opinions that the word square,’ in the former ordinance and law meant what was generally understood by that term, and the word 1 block ’ in the later ordinance and law means just the same thing. In other words, 1 square ’ and 1 block ’ are, strictly speaking, convertible terms.” State vs. Natal, 42 An. 612.

It being conceded that defendant’s private market is distant more than 2100 feet, by the nearest walking route, from a public market, he is within the protection of the law as thus interpreted by us, although, owing to their excessive length, there are not six actual blocks or squares between him and the public market.

It is, therefore, ordered and decreed that the judgment appealed from be avoided and reversed, and that the charge against defendant be dismissed; appellee to pay costs of this appeal.


text:
    No. 10,949.
    State of Louisiana vs. Joseph Z. Fruge.
    State may offer evidence of the good reputation for truthfulness of its own witness, in case his veracity is attacked by defendant’s counsel in course of his cross - interrogation.
    APPEAL from the Thirteenth District Court for the Parish of St. Landry. Lewis, J.

      W. H. Bogers, Attorney General, for the State Appellee.

      Thomas H. Lewis, L. Dupre and E. P. Veazie for Defendant and Appellant. . _
   The opinion of the court was delivered by

Watkins, J.

From a conviction of grand larceny and sentence tO' six months’ imprisonment, at hard labor, the defendant appeals.

In this court he has made no appearance by counsel or otherwise, and we find in the transcript but one bill of exception which requires notice; and it appertains to the ruling of the judge below permitting the State to introduce proof confirmatory of the reputation for truthfulness of the single witness offered by and relied upon by the State to establish the guilt of the accused — defendant’s objection being that the veracity of a witness offered can not be supported and strengthened by proof of good reputation for truthfulness until his veracity has been assailed.

Conceding the correctness of the rule invoked, the trial judge held that this case was an exceptional one, in this, that while the single witness for the State was under cross-examination by defendant’s counsel an effort was made to impair, if not destroy, the witness’ credibility by interrogating him with reference to his having been theretofore prosecuted for a similar offence; and admitted the testimony over objection.

In so doing we are of opinion that the ruling was correct, and the testimony properly admitted, because the case for the State might otherwise have been left in a crippled condition at its submission, without a further opportunity to repair it.

This ruling is strictly in keeping with that we approved of in State vs. Boyd, 38 An. 374, and it was based on 1st Greenleaf of Sec. 469.

Judgment affirmed.


author: Breaux, J.

text:
    No. 10,910.
    Bernard Klotz vs. Charles Macready et al.
    Tlie purchaser can compel the vendor to comply with his obligation expressed in the act o£ sale to cancel the mortgage appearing of record against the property he sells.
    The purchaser choosing to allow the mortgage to remain, and the promise to cancel to continue uncomplied with, his creditor, who has a mortgage on tho property and has caused it to he seized, can recover judgment to clear the title of encumbrances, and to enforce the cancellation as required by the terms of the sale.
    The proceeding is proper, and arises, ex necessitate rei, in the absence of any law to the contrary.
    The agreement which plaintiffs seek to have carried into effect gives rise to a real right which can be enforced by the creditor.
    It is not an obligation strictly personal, which none but the obligees can enforce, but a right of property which can be exercised by those who have a right of mortgage on the property.
    APPEAL from the Civil District Court for the Parish of Orleans. EUis, J. •

      H. C. Cage, Lewis Guión and W. S. Benedict for W. S. Benedict, Appellant. _

      Thomas J. Semmes for Succession of Margaret, Appellee.
    A creditor may exercise the rights of his debtor, when such debtor fails to ex. ereise them to the prejudice of his creditor. Gaines’ case, 131 U. S. 218; 43 Dalloz, 239; Articles 932-935; Hayden vs. Nutt, 4 An. 65; 25 Demolombe, No. 49; Sue. of Baum, 11 Rob. 321.
    2. When a right exists the court will, in the absence of any specific remedy, supply one. J’ortier vs. Slidell, 7 Bob. 39S; Morris vs. Cain, 35 An. 760.

      Bayne & Denégre for Mortgage Creditor, Defendant and Appellee.
   The opinion of tjie court was delivered by

Breaux, J.

The defendants having obtained a judgment against the plaintiff for the sum of $31,841.65 with interest, subject to a remittitur of $624.42, and the sheriff in enforcing it having seized certain parcels of land, with the buildings and improvements thereon, Bernard Klotz & Co., a corporation limited, sued out an injunction restraining that officer and the defendants from proceeding further to dispose of the machinery and contents of a factory placed thereon by them while lessees.

The injunction was maintained, except as to machinery and certain implements stated in the judgment, which were not placed on the said land by the lessees.

The evidence maintains the correctness of that judgment.

It is affirmed.

The defendants, Charles Maeready et al, in the proceedings before us, sued William S. Benedict, Bernard Klotz and Lee Clark, and aver that- their judgment has been duly recorded.

That in an act of sale dated the 9th of January, 1889, the price for which the property was sold to Bernard Klotz, by W. S. Benedict, was $50,000, of which $10,000 was paid in cash, and the remainder was to be paid in notes of $1000 each. Nine of these notes have been paid. The mortgage securing them has not been canceled.

They further aver that there was a note of $10,000, secured by mortgage on the property at the time of the sale, which the vendor (Benedict) to Klotz promised to have canceled. It was his indebtedness, and an encumbrance on the property which he promised to cancel.

This note was held by Lee Clark. Maeready et al., in their suit, claim the right to have the amount of the vendor’s mortgage ascertained and fixed, and to compel W. S. Benedict to extinguish the note for $10,000 and cancel the mortgage on the property under seizure. The defendants have filed separate answers. Prior to answering, Benedict filed the plea of no cause of action.

In his answer he avers that the claim for $10,000 is valid and that a tender of the amount due was made. It was not accepted. The exception and merits were tried together. Klotz, the vendee, denies the right claimed, and Lee Clark in his answer alleges that he is the holder of the note for $10,000, secured by privilege and mortgage, and prays to be paid by preference over all others.

Judgment was rendered in favor of Maeready et al. overruling the exception and decreeing that the mortgage in favor of W. S. Benedict, resulting from the acts of sale by him to Bernard Klotz, dated January 9, 1888, be reduced to the extent of $9000, being the nine notes paid of $1000 each.

He was also condemned to pay to Lee Clark the amount of the two'notes and interest and other charges secured by privilege and mortgage on the property as before mentioned.

Benedict and Klotz appeal.

The facts needful to the decision of the case are sufficiently set forth by the statement that the amounts are due and secured as alleged, and that it is declared in the act of sale of January 9, 1889, that Benedict, the vendor to Klotz, promises to cancel the mortgage for $10,000 resting on the property he sold.

It is not alleged, nor was it contended in argument, that there are any equities between Klotz and Benedict.

Having sold the property and promised to cancel-existing encumbrances, there can be no question as to the right of the purchaser to require compliance.

The agreement made was certain, fair and just.

It can not be renounced to the detriment of the interest of-his creditors, whose claims are secured by mortgage on the property.

Having a right which he does not choose to enforce, the question arises as to whether his creditor, whose claim is secured by mortgage, can compel compliance.

The Oivil Code does not in express terms authorize creditors to-exercise all the rights and actions of their debtors.

This court has not heretofore decided that only such rights and. actions of creditors may be exercised as are expressed.

In Morris vs. Cain et al., 30 An. 759, the proceedings wereinthes nature of a bill of interpleader in chancery practice, not provided in. our Code of Practice: “ But under Art. 31 C. C., and on general principles this court has often held that the Code of Practice does not exclude all other remedies than those therein provided for, and that the courts will afford other appropriate remedies where not prohibited, and they have repeatedly enforced remedies identical with the one here invoked.”

If not maintainable on equitable ground, “there is a principle of the civil law obtainable inLouisiana, by the aid of which there can be no doubt of its being maintainable.” N. O. vs. Gaines, 131 U. S. 213. Fortier vs. Slidell, 7 R. 399.

There are rights, says the Code, which the creditor can not exercise even should the debtor refuse to avail himself of them. Art. 1991.

The excepted rights do not include such a right as the one involved in this suit for it is not similar.

The Civil Code expressly reserves to a creditor the right of intervention in all suits which may arise between the usufructuary and', the owner. Art. 623.

He may cause to be annulled any renunciation made by his debtor of the usufruct, to his prejudice. Art. 624.

He may accept an inheritance the debtor .refuses or neglects to-accept. Arts. 1021, 1990 O. C.

Despite the debtor, he may plead prescription his debtor declines, to plead, or may choose to waive.

These rights are not exclusive.

The property of the debtor being the common pledge of hiss creditors.

The obligation being attached to immovable property, being a right of property.

Privity being the ‘ ‘ mutual or successful relationship to the same rights of property,” it is consistent with the articles referred to to include among the right of creditors that of compelling the vendor-of property to his debtor to cancel a mortgage on property mort— gaged- to secure his claim, and which the vendor promised and obligated himself to cancel — instead of classing it as a strictly personal obligation, when it is not.

It is not a right of the debtor, which the creditors can not exercise, such as requiring the separation of property between husband and wife, or compelling him to accept a donation inter vivos, etc. C. C. 1991.

It is not alleged, nor is it claimed, by Benedict and Klotz that specific performance is an issue involved in this case, to which they object.

The defence is a denial of any right of the debtor Klotz against Benedict, the creditor of Klotz, can have enforced, in other words, they contend that a creditor can not exercise the rights of his debtor when the latter (to the detriment of the former’s interest) fails to exercise them. That being the defence, to that extent we decide the issues, and hold that it is not a strictly personal obligation, but one the creditor can exercise.

A question of tender of an amount to take up the $10,000 note, ■secured by the mortgage which the vendor promised to cancel, comes up as one of the issues.

The tender was made in the name of a third person, not shown to have had an interest.

The tender was made to the attorney of Lee Olark.

A question arose between the attorney and the party making the tender about distinguishing the payment from a sale or transfer.

The attorney was without authority to transfer the note and merely change the creditor.

It was a matter of payment vel non.

Payment consists in the discharge of an obligation.

The attorney of the holder could, before accepting the amount, insist upon payment.

Judgment affirmed at appellant’s costs.


text:
    No. 10,872.
    Union National Bank vs. J. E. Choppin et al.
    1. When a defendant in a cause dies and has “not answered,” further proceedings against his heirs must be conducted in conformity to Article 120 of the Code of Practice, and the citation or notice and the delays therein prescribed must be allowed.

      2. The case is not affected by the fact that issue had been joined by default. A default is not an answer.
    APPEAL from the Twenty-second District Court for the Parish of St. James. Duffel, J.

      Sims & Poché for Plaintiff and Appellee.

      Pugh & Lambremont for Defendants and Appellants.
   The opinion of the court was delivered by

Fenner, J.

Appellants assign as error patent on the face of the record, that judgment was rendered without citation of the legal representatives of deceased defendants, and without allowing the delays prescribed by law. The facts are: The plaintiff’s suit was brought against. P. F., L. H. and Joseph E. Ohoppin. P. F. and L. H. appeared and filed answers. Joseph E. Ohoppin never answered, but judgment by default was entered against him. At this stage Joseph E. Ohoppin died. Plaintiff then applied for and obtained an order of court making his legal representatives parties. A copy of this order was served on these representatives, but no citation was served. Subsequently one of these representatives, Mrs. Ohoppin, died without having appeared or filed answer. Thereupon plaintiff obtained another order making her heirs parties. A copy of this order was served on said heirs on the 29th and 30th of May, 1891, also without citation. On the 2d of June, 1891, only two clear days after service of above order, the cause, was, on plaintiff’s motion, set down for trial on June 10. On that day, over the objection of appellants counsel, who thereupon withdrew and refused to take part, the case was taken up, tried and decided.

The law governing the ease is found in Art. 120 of the Code Of Practice: “ If one against whom there was a cause of action, die, leaving one heir only, the suit shall be carried on against such heir, as it would have been against the deceased. If the suit had already been brought against deceased, and he had not answered, it shall not be interrupted, but shall be continued against the heir by a mere citation or notice served on him to that effect, within the delay for original citations, according as the distance may be from his domicil to the court where the action has been brought. If, on the contrary, the deceased have one or more heirs, the plaintiff may-proceed personally against each of them for the sharejwhich he inherits, etc.

“ If the suit had been already commenced against the deceased, it. shall be continued against his several heirs by citing each of them separately as if there were only one.”

This article is found in Part I of the code. In Part II are found the two following articles:

“ Art. 360. When the defendant suffers judgment by default to be taken against him, the issue is joined tacitly; because such defendant, is presumed, by his silence, to have confessed the justice of his adversary’s demand, therefore the plaintiff is allowed to proceed with his proofs in order to have the judgment confirmed.

“Art. 361. If, after issue joined, either the plaintiff or defendant die, it is not necessary to recommence the action; it continues between the surviving party and the heirs of the one deceased, pursuant to the provisions enacted in the first part of this code.”

Thus the last article, 361, expressly refers to the “ provisions enacted in the first part of this code” as defining the methods to be pursued in the continuance of the action.

We do not understand plaintiff’s counsel to deny that in a case within the terms of Article 120, citation or equivalent notice, allowing the same delays as in original citations, is necessary.

His contention is that defendant’s case is not covered by that article, because, he claims, default is equivalent to answer.

We can not approve this contention. The Code of Practice recognizes two modes of joining issue, by default or by answer. They are not identical, but entirely different and distinct. Both are equally effective in joining the issue; but a default is certainly not an answer. On the contrary, the default is only allowed because the defendant has not answered.

When the respective defendants in this case died they “ had not. answered, and the case falls squarely within the exact letter and meaning of Article 120, by which alone further proceedings must be. governed. We are, therefore, bound to hold that the precipitate proceedings of plaintiff were in disregard of the legal rights of appellants.

It is, therefore, ordered and decreed that the judgment appealed from be avoided and reversed, and that the case bó remanded to the lower court, to be there proceeded with according to law, appellees to pay costs of appeal.


author: Breaux, J. Watkins, J.

text:
    No. 10,963.
    David R. Calder vs. Police Jury of Terrebonne.
    1. Although police juries have no right to trace a line of road, as it is a duty which must he entrusted to a jury of freeholders, they have certain authority as to its width and direction.
    Unless it is shown that the police jury have absolutely dictated the line to be followed, it will not be held that they have exceeded their authority.
    2. An-ordinance which authorizes the taking of private property for public use must provide for compensation.
    Private property cannot be taken for public use without securing to the owner the compensation the jury of freeholders find allowable.
    APPEAL from the Nineteenth District Court, Parish of Terrebonne. Allen, J.

      L. C. Suthon for Plaintiff and Appellant:
    1. Public roads must be laid out by a jury of freeholders, and not by the police jury, and in the manner pointed out by law. R. S. of La., Sec. 3369. 27 An. 20á.
    2. Private property can not be taken nor damaged for public purposes without just and adequate compensation being first paid. Const. 1879, Art. 156. 35 An. 1015.

      L. G. Moise for Defendant and Appellee:
    Although averments in the petition and prayer show that the matter in dispute is within the appellate jurisdiction of this court, the appeal will be dismissed yroprio mota, when it appears from the record that the matter in dispute is really below the lower limit of such jurisdiction and the claim is considered as not serious and fictitious. Mary Pinckney et al. vs. Charles Wolfe, ál An. 306. Bright vs. Thompson, 38 An. 801.
    Laws in pari materia, or upon the same subject matter must be construed with a reference to each other. C. C. Art. 17, where a law says that damages assessed by a jury of freeholders shall be a parish charge and shall be paid by the parish treasurer, in such a case an appropriation is unnecessary. R. S., Sec. 3369.
    In is too late to enjoin a police jury from declaring a road public subsequently to a resolution passed declaring it public. A general denial shifts the burden of proof upon plaintiff to prove the allegations of his petition.
   The opinion of the court was delivered by

Breaux, J.

A number of residents of the parish of Terrebonne presented a petition to the defendant police jury, asking that steps be taken by that body to expropriate a road over certain designated lands.

A resolution was adopted appointing twelve freeholders to trace and lay out a public road, in accordance with the requirements of the statutes authorizing such expropriation.

The police jury directed that the road be laid out from. Bayou Terrebonne to Bayou Point au Chien, thence down the right descending bank of said bayou to Dupre’s bridge, and from this bridge to other points stated in the ordinance.

The committee of freeholders reported that they had laid out a road in compliance with the ordinance.

In the report, describing the road, it is stated that the point of beginning is the lower line of the Aragon plantation-, belonging to plaintiff.

The committee further reports that $200 will be ample compensation to plaintiff for his property sought to be expropriated, and for all damages.

The report was received by the police jury and accepted, and that body ordered that the road, as stated and traced in the report, be declared to be a public road, and that due publication be made, for thirty days, in the official journal.

Before the thirty days had elapsed, plaintiff sued out an injunction, alleging that at an expense of $3000 he built a road and causeway, through a marsh on his place, in order to make the rear portion accessible to cultivation.

That the settlement seeking a right of way, over this road to the public road, passing in front along the Bayou Terrebonne, should seek their way to the front over another plantation, named as owing them a servitude of way.

He alleges that the ordinance of the police jury and the action of the committee of freeholders are illegal and void, for the reason that the road was laid off by the police jury and not by the committee.

He further urges that no appropriation was made and no ordinance was adopted with the view of compensating him, and that the declaration that the road is public, made without any action to secure an amount for his property, is void.

The case was tried by jury.

The judgment dissolves the injunction; declares the road public, and allows five hundred dollars to the plaintiff. He prosecutes the appeal.

The defendant charges that the total claimed, viz., $5000, is fictitious, and that this court is without jurisdiction.

The alleged value' of the property is stated, and the damages claimed. These allegations are sworn to by the plaintiff.

“The amount in disputéis the highest sum for which judgment can be rendered.”

This court has jurisdiction. Forstall vs. Larche, 39 An. 287.

Merits.

Although there is some similarity between the ordinance of the police jury and the report of the committee of freeholders, recommending the expropriation, it is not complete.

In the ordinance no reference is made to defendant’s place. In the report of the committee the road is traced over the place of the defendant.

It is not made apparent that only one line could be followed by the committee.

The petition, in compliance with which the ordinance was adopted and the committee appointed, was for the purpose of expropriating a right of way to the Bayou Terrebonne.

The isolated condition of the settlement and the reasonable desire of the inhabitants to secure a needed road preclude the inference that they sought an expropriation over defendant’s place only, and were unwilling to secure another elsewhere, although equally as advantageous.

Police juries have no right to actually trace a line of road, it must be laid out by a jury of freeholders.

The police juries have some power entrusted to them “as to the proportion and direction” of the roads. Sec. 2743, R. S.

The ordinance did not, in this respect, exceed their power.

The declaration making the road public, without adopting any measure toward paying therefor, presents a question for our determination.

Police juries can act only in the mode prescribed by the law creating them.

In ordering this road to be opened they incurred a pecuniary liability, for the payment of which provision should have been made. R. S. 2786.

In proceedings for expropriation of private property all the formalities required by law must be strictly observed.

An ordinance which authorizes a taking must provide for compensation. Denison, Eminent Domain, Sec. 452.

The tender of the compensation may be readily waived. The least act manifesting intention not [to accept, and showing that the offer would be useless, has been held as justifying the omission of the tender.

But in making an expropriation it should appear of record that provision has been made for the payment of the value which the expropriating authority admits as that of the property expropriated.

The failure to make the required appropriation vitiates the jury’s verdict. Although the testimony makes it obvious that petitioners have good reason to petition for a road and that its advantages would prove considerable, the Constitution and the statutes have placed safeguards around private property which must be upheld, and one of these safeguards is that appropriation must be made to compensate the owner for the value of the property and the damages found.

Provision must be made for compensation. Potter’s Dwarris, p. S78.

Private property can not be taken for public use without securing ho the owner just compensation. Elliott on Roads and Streets, p. 179. Watson, Ex., vs. Trustees, 21 Ohio, 667.

“ If we are right in this view of the question, it would follow if the Act of 1834 had made provision for compensation for the land taken for the right of way, the act would have been constitutional.” Brener vs. Bowman, 9 Georgia 71.

It is, therefore, ordered, adjudged and decreed that the vex’dict and judgment appealed from be annulled, avoided and reversed, and that the injunction is made perpetual in prohibiting the police jury from enforcing an ordinance expropriating said road without appropriating the amount recommended by the jury of freeholders as a compensation for the expropriation.

DISSENTING OPINION.

Watkins, J.

(a) I doubt plaintiff’s right of appeal to this court in any event, because the law is that “whenever any individual, through whose land a road laid out as aforesaid shall pass, may be dissatisfied with the decision of the freeholders laying out the same, either as to the course the same is to take or to the damages to him assessed, he may have an appeal to the District Court for the parish in which the road lies, provided he prosecute the same at the next session of the said court, after the laying out of the said road, or the assessment of the damages; and no appeal should be set aside for want of form in bringing the same before the courts. Injunctions to stay proceedings may be issued in said case when the case requires the same.” R. S., Sec. 3370.

In such case the appeal is sui generis and altogether informal, and an injunction operates as a restraining order in that case. It is not a new suit or proceeding, and no new, separate and distinct trial and judgment is contemplated by the statute.

The whole question is one of police administration and of a purely political character, and not judicial. Of such a class of proceedings this court has been given no jurisdiction.

(6) I am of opinion that damages are only contemplated in cases where roads are actually laid out in pursuance of an ordinance of a police jury, because the law is “ that for all roads to be hereafter opened and made * * * it shall be the duty of said freeholders * * * to assess such damages as any person may sustain.” Id., Sec. 3369.

In this ease a new road was not traced and laid out through the complainant’s premises and plantation, but a road already in existence was adopted and declared pro hoc vice a public road.

(e) I am of opinion that the one in question is in no proper sense an expropriation proceeding, because it does not contemplate the condemnation of the property, but simply and only the creation of a servitude of way. It is in the nature of an appropriation, though, in certain cases, entitling the proprietor over whose property it is laid, to damages — because the law is, that “ nothing in this section shall be so construed as to * * * prevent any owner of the soil on which a public road shall pass to resume the use and possession of such soil whenever the said road shall have been abandoned by the public, or shall have been transferred elsewhereId., Sec. 3369.

Entertaining these doubts in respect to the law controlling this case I feel constrained to dissent.


author: Breaxjx, J.

text:
    No. 10,915.
    New Orleans, Fort Jackson & Grand Isle Railroad Company vs. Eugene Rabasse.
    Act of Congress of August IB, 1888, authorizing the removal of causes to the Circuit . Court of the1 United States on the ground of local prejudice, makes no provision for a removal by an alien.
    One of the conditions of the bond for removal is that the principal shall pay all costs that may be awarded, if said court should hold that the suit was wrongfully or improperly removed. A bond without that condition is defective.
    The verdict of a jury is responsive to the issues when rendered with reference to the pleadings.
    The verdict is presumed to be correct. The party who wishes it set aside has the onus of establishing that it is incorrect.
    In expropriation proceedings the jury of freeholders have, to some extent, the character and authority of experts.
    Although their finding is not conclusive, it must be given due weight.
    APPEAL from the Twenty-fourth District Court, Parish of Plaque-mines. Livaudais, J.

      Chas. Louque for Defendant and Appellant. Cited: 122 U. S. 513; 16 Peters, 104; 19 Wall. 214; 100 U. S. 457; 104 U. S. 5.

      James Wilkinson for Plaintiff and Appellee:
    Defendant can not remove a cause to the United States Court on the ground of local prejudice, unless he alleges that he could not obtain justice in the court a quo, or in any other State court, to which the defendant had a right under the present State law to remove this cause. Act of Congress, August 13,1888; Secs. 3901 to 3910, R. S. of La.
    The bond for removal must be framed in accordance with the above law.
    Evidence taken without objection on the trial of the application to remove will constitute part of such application, and where defendant’s sworn statements contradict the affidavit annexed to his petition, the application to remove will be overruled. Collated authorities, Louque’s Digest, p. 234.
    Where defendant and his agents lately appeared before the Board of Reviewers and swore that their property, with improvements, was only worth $3000; a demand of $7780 for one-fiftieth (1-50) part of the same in this suit will be con- • sidered as frivolous.
    The jury gave the plaintiff really more than the evidence warranted.
   The opinion of the court was delivered by

Breaxjx, J.

This suit was brought to expropriate a road over the land of defendant. The land sought to be expropriated is part of a ■tract measuring five arpents front on the Mississippi riv6r, by forty arpents in depth.

Plaintiff avers that it- measures twenty-five feet in width and in all contains eighty-three one-hundredths of an acre, for which the company offered fifty dollars, and claims the increased value to defendant’s property, resulting from the building of the railroad, as an offset for any damage sustained by him.

Plaintiff, in the petition, sets forth that the improvements on the right of way consist of thirty orange trees.

The defendant, alleging that he is a citizen of the Republic of Prance, applied for the removal of the cause. He avers in his brief •“ that before going on with the trial, defendant filed his petition for the removal of the cause to the Circuit Court, on the ground of local prejudice, as is provided for by the act of Congress of 1888.” 25th Statutes at Large.

In a supplemental brief it is argued that there is no good reason why an alien should not be included in the denomination of a citizen of another State.”

Extract from the said statute reads: “ Any defendant, being such citizen of another State, may remove such suit into the Circuit Court ■of the United States, for the proper district, at any time before the trial thereof, when it shall be made to appear to said Circuit Court that from prejudice or local influence he will not be able to obtain-justice in such State court, or in any other State court to which said defendant under the laws of the State has the right on account of such prejudice or local influence to remove said cause.”

The conditions of the bond for removal are that the principal shall file full and complete copies of all pleadings and other proceedings in the case in the Circuit Court of the United States, at its next session, and shall pay all costs that may be awarded.

The plaintiff controverts defendant’s application for removal on the ground that he has not alleged that he could not obtain justice in the court a qua, or in any other court.

That the bond for removal is not framed in compliance with law.

That evidence was taken, without objection, in the trial of the application to remove, which disproved the affidavit.-

The application for removal was overruled.

The act of Congress of August 13, 1888, authorizing the removal of causes on the ground of local prejudice requires the affiant to- state that he could not obtain justice in the court a qua, or in any other State court to which the defendant had a right under the present State law.

Sections 3901 and 3902, R. S., provide a change of venue in civil cases.

Evidence was heard, as alleged.

On the subject of removal, we limit our decision to the following:

In the several laws relating to the removal of causes from the State to the Circuit Courts the words “ citizens of a State ” are used-as designating citizens of one of the commonwealths of the federal republic.

The word “State” is used as distinguishing the States of the American Union, and do not designate foreign countries.

The act adopted in 1888 is similar to that adopted March 2, 1867, in so far as relates to the citizenship of the applicants.

With reference to the latter, we find in Spear on the Law of the Federal Judiciary, p. 469, “ that there is no provision for a removal by an alien under this act.”

The bond furnished does not secure the payment of costs. This, by the act in question, is made one of the conditions of the transfer.

On that subject, in Meyer vs. Construction Co., 100 U. S. 457, it was held that

“ Nothing was, therefore, to be secured by the bond, but the filing-of the transcript in the Circuit Court * * * and the payment of any costs as required by statute.” Meyer vs. Construction Co., 100 U. S., p. 457; Field’s Federal Court, Sec. 177.

The amount of the penalty and the required conditions should be inserted in the bond; until then there is no right of removal. 16.

We affirm the overruling of the application for removal.

The plea in reconvent-ion is referred to in argument and it is urged that the defendant’s evidence, in its support, should have been admitted.

The records do not contain any bill of exceptions or any proof that evidence was offered to sustain that plea or that the Court made any ruling whatever in the matter. .

The plea is therefore not before us for decision.

In compliance with an order issued under Section 148 of the Revised Statutes, a jury was drawn and the case was tried.

The verdict was for plaintiff, expropriating the right of way, and for the defendant for the sum of fifty dollars, value of the land, and the further sum of $200 and costs.

From the verdict and the judgment of the court, defendant prosecutes this appeal.

The road is twenty-five feet in width and the area sought to be expropriated is eighty-three one-hundredths of an acre; it passes in the rear of the dwelling, at a distance between 100 and 200 feet, through the stable lot, changin'g its dimensions and touching the stable.

From the upper line of defendant’s place the road curves to the rear.

This direction was followed to avoid the unsafe caving bank of the river.

The records do not disclose that'the jury have overlooked the fact that the said curve gave an irregular shape to the front of the place, or that they have overlooked the allegations of the damages it occasioned, and the evidence on the subject.

The defendant contends that the law of expropriation is such that a railroad company can not expropriate lands through a yard garden and other appurtenances, unless the jury shall find by their verdict that the line of the proposed railroad can not be diverted from that proposed by the company without great public loss or inconvenience. R. S. of 1870, Sec. 1486.

The plea authorized by this section of the statute was clearly presented by the defendant.

The testimony shows that there was a caving point which made it necessary to leave the river and run further to the rear.

To reach their conclusion, the jury must have considered this testimony as true.

While the verdict does not set forth in so many words the finding .as contained in the law, it does. in effect by returning for the expropriation as proposed.

Construed with reference to the pleadings and the testimony the verdict is responsive to the issues. Downs vs. Scott, 3. Rob. 88.

The value of the orange trees within the road’s limits is one of the issues.

The following is a summary of the testimony, both as to the value of the trees and of the land expropriated:

The superintendent of the road testifies that there were on the land twenty-nine or thirty trees, large and small, valuable and valueless; of the valuable there were only four or five.

The second witness, a notary public, employed in that capacity by the plaintiff, testified that the value of property in the vicinity of the defendant’s place has been enhanced 25 or 30 per cent, by the building of the road of the plaintiff’s company.

He states that the number of trees cut down were 35; that 1Y of them were not bearing and were worth about 45 cents each; that the land sought to be expropriated was worth $50.

The third witness, a manager of a plantation near the defendant’s, testifies that the value of land in the vicinity has been enhanced by the building of the road.

The fourth witness, a surveyor, called by the defendant, testifies that there were seventy-four trees of different sizes on the road lines, some measuring in diameter as many a3 twelve inches, others one inch.

The fifth witness only knew that there were some large and some small orange trees on the place.

The sixth witness, a dealer in oranges, testifies that he offered $1500 for the orange crops on this and another of defendants’ places, or $2000 if he would consent to deduct whatever damages to the crop would be made by the railroad company by the expropriation.

The offer was not accepted.

This testimony loses importance in establishing the value by the additional statement of the witness that he, at the time, made a rough calculation, and did not know the number of trees that would be cut down.

The defendant testifies in general terms in his behalf, and at most corroborates the allegations of his petition.

Such being the testimony we have not reached the conclusion that the verdict is erroneous.

A verdict is presumed to be correct. The party who wishes it set aside has the onus of establishing its incorrectness.

We have not concluded that there is error in the findings.

The members of the jury, it is fair to presume, knew something of the value of orange trees.

The question is one of fact, of which they should be competent judges after having heard the testimony of witnesses.

In a recent case we have had occasion to hold:

It has long been held in this State that the jury of freeholders, authorized by our laws to act in expropriation proceedings, have to some extent the character and authority of experts, supposed to have some personal knowledge of the matters submitted to them, and authorized to rely on their own opinions as well as on the testimony adduced before them. Their verdicts are indeed subject to review by appeal and may be amended when manifestly inadequate or excessive; but they are entitled to great respect and will not be interfered with, except in case of gross or manifest error.” Telegraphic Cable Company vs. Railway Company, 43 An. 525.

As in the case from which we quote we deem it proper to rely upon the verdict of a jury who, in the discharge of their functions, and from their personal knowledge, were enabled to decide as to the weight of the testimony of the witnesses who appeared before them.

Judgment affirmed.


text:
    No. 10,914.
    Jules C. Eyrick vs His Creditors.
    The right to require security by a creditor from a debtor who has been granted a respite is absolute u nder the provisions of Act 134 of 1888, and the creditor is not limited in time to require the security.
    ' om the Civil District Court for the parish of Orleans.

      Rice & Armstrong and E. T. Florance for Plaintiffs and Appellees.

      Gus. A. Breaux, Contra.
   The opinion of the court was delivered by

McEnery, J.

J. O. Eyrick applied for a respite, which was unanimously ^granted by the creditors who appeared and voted at the meeting of creditors. The respite was confirmed by a judgment. Certain creditors who took no part in the proceedings of the meeting of creditors and who did not oppose the homologation of said proceedings, took a rule against the plaintiff to compel him to give security in accordance with the provisions of Act 184 of 1888. The rule was made absolute and the plaintiff appealed.

The question presented is, can a debtor who has obtained a respite by the unanimous vote of creditors appearing at the meeting of creditors be compelled to give security to a creditor who did not appear at said meeting and who did not oppose his application for respite and the homologation of the. proceedings of the meeting of creditors.

The act referred to provides that ‘1 any creditor who has not assented to the respite may require that the debtor shall furnish security; that the property of which he is left in possession shall not be alienated, or in case it is, that the money arising from the sale or mortgage of the same shall be employed in paying ratably the debts existing at the time of the respite.”

The creditor can not exercise this right until the respite has been granted. He.is not limited to any period of time beyond which he can not exercise this right. It is an absolute right conferred by the statute. It does not appear that the complaining creditors either expressly or tacitly assented to the respite.

Judgment affirmed.