author: Todd, J. Levy, J.

text:
    No. 994.
    Succession of T. S. Mulhern. On Homologation of Account of the Administratrix.
    The Administrator of a Succession, who has placed a privilege creditor, as such, on his account and tableau of distribution, cannot afterwards pretend to amend his tableau and recognize such creditor only as an ordinary one, on the ground that the acknowledgment of the privilege was made in error of fact, without proving, not only the error, but, also, that he was ignorant of it, at the time he presented the original account.
    The fact that a privilege creditor has received part payment of his claim by anticipation and from the general funds of the estate, will not prevent him from being paid the full, balance of his claim out of the particular fund upon which he has a special privilege.
    APPEAL from the Fifth District Court, parish of Richland. Richardson, J.

      Robert Ray for the Administratrix, Appellant:

      First — A dministratrix can anticipate the payment of privilege claims belore the sale of property upon which the privilege operates.
    Second — Alter the sale of property upon which the privilege operates, a creditor so paid cannot ask to be paid again.
    Third — Administratrix is not bound to pay privilege claims out of the identical funds which the property sold for upon which the privilege operated.
    Fourth — J. Bernstein was paid before the homologation of the final account all he was entitled to out of the estate of T. S. Mulhern, and cannot be paid again.
    Fifth — Mrs. M. D. Mulhern is an individual privilege creditor to the amount of $1000, and should not be required to pay Bernstein again out of funds upon which she has a privilege.
    Sixth — I. Bloom & Co. have no vendor’s privilege upon the proceeds of the land, for the reason that the deed and mortgage under which they claim the same was not recorded prior to the death of Mulhern.
    Seventh — Privileges cannot be created by the judicial admission of an administrator.

      Potts & Hudson for Opponents and Appellants.

      Cobb & Gunby for Opponents and Appellees.
   The opinion of the Court was delivered by

Todd, J.

The controversy in this case relates to the proposed distribution of the proceeds of certain real estate belonging to the succession of P. S. Mulhern, deceased, in the hands of the administratrix of the succession.

The administratrix first filed a. provisional account, in which she proposed to divide this fund, after making certain reductions therefrom, between J. Bernstein and I. Bloom.

Subsequently, she filed another account, termed an amended and ■ final account, in which she averred that the claim of Bloom was allowed as a privilege debt, in error of fact; that the claim was for part of the price of land purchased by the deceased; but that the act of sale and mortgage securing the payment of the price had not been recorded until after the death of the deceased. She proposed to apply the amount, which, under the first plan of distribution was to be applied to the debt of Bloom, towards paying her own claim of one thousand dollars, as surviving widow of the deceased, in indigent circumstances.

The judgment of the District Court allowed the claim of Bernstein, but rejected that of Bloom as a privilege on the fund in question, recognized the widow’s claim, and directed part of the funds in the hands of the administratrix to be applied towards its payment. From this judgment Bloom and Mrs. Mulhern, in her individual capacity, are the sole appellants.

Bloom urges two reasons why the judgment rejecting his privilege was erroneous: First, because, in the first account, his claim was allowed by the administratrix, and an order for its payment, as a debt importing the vendor’s privilege, asked for; and that, after such acknowledgment, the subsequent action of the administratrix in the final account, denying the privilege, was not authorized; and that the administratrix was precluded therefrom by the acknowledgment made in her first account; and, secondly, that the act of sale containing the evidence of his privilege, was recorded at the same time in the book of sales and book of mortgages, though after the death of Mulhern, the purchaser of the land.

Mrs. Mulhern complains of the judgment in favor of Bernstein, upon the ground alleged that he had already received on his claim more than he was entitled to.

There is no contest between Bernstein and Bloom.

1. The facts bearing on the issues raised by the pleadings in this case are substantially as follows:

P. S. Mulhern died in the parish of Richland, in September, 1874. .His estate consisted in part of a tract of land of 520 acres, one undivided half of which was purchased by the deceased of H. F. Yiekers, on the 4th of August, 1871, on a credit, and the deed to which was duly recorded in the notarial and mortgage record books. The other half of the land was bought of the same party on a credit, on the 12th of August, 1873, but the deed to it was not recorded until the 28th of April, 1875, which was after Mulhern’s death.

Bernstein is the holder of notes given under the first and Bloom under the second sale. The acknowledgment of Bloom’s claim by the •administratrix, the placing it on her account as a privileged claim against the succession, and asking its payment out of the proceeds of the lands which she had sold, was a confession of judgment in favor of Bloom, or equivalent thereto. This confession could • not have been retracted to the prejudice of Bloom and to the personal benefit of the ■administratrix, except for error of fact, properly alleged, and the fact that it was made in error, clearly established; and especially is this the ■case when the sole beneficiary of such retraction and change in the account is the party who made the confession. It is true, as urged by Mrs. Mulhern’s counsel, that a mere consent or agreement cannot give rise to a privilege; but where, in a judicial proceeding, a party who has an interest in denying such privilege confesses it, the party in whose favor the confession is made is entitled to the benefit of it; and it be•comes a question, not whether a privilege can spring from consent, but whether the one making such admission is bound thereby, and should or not be suffered to question it. It is not sufficient that one should plead that an act was done in error of fact, but such error should be proved. As, in this case, it was not enough that the administratrix should say that she had allowed the claim in the first abcount, in error, but she should prove, not merely that the sale in question had not been recorded before the death of Mulhern, but that, at the time she confessed the privilege, she was ignorant of such fact. There is no proof of such ignorance on her part in the record. As stated before, an administratrix should not perhaps be held to so strict a ruling, did she .seek merely to correct an error for the benefit of the creditors of the succession whom she represented. Such is not the case here, as no creditor is before us, unless it is the administratrix herself, demanding such change or correction in the account. The only appellants, as stated, are Bloom and Mrs. Mulhern, who alone are interested in this issue, since no change can be made in the decree to affect the appellees, none of whom have asked an amendment of the judgment.

This view of- the subject relieves us of the necessity of passing on the question touching the effect of the non-registry of the sale referred ■to, during the lifetime of Mulhern, and its registry after his death.

2. The amount allowed Bernstein by the judgment appealed from, ■is complained of by Mrs. Mulhern, on the ground that, before the rendition of her account, she had paid on Bernstein’s claim an amount larger than the pro rata to which he was entitled, the succession being insolvent; and that such payment debarred him from any further participation in the fund. It is shown that the payment referred to, was made by Mrs. Mulhern before the land on which the privilege existed was sold and, in fact, before she was appointed administratrix of the succession-This cannot affect the right of this creditor to claim the balance due on such privilege debt, out of the actual proceeds of the sale of the property on which his privilege rested. The fact that part of his debt had been paid by Mrs. Mulhern at the time and under the circumstances-shown, could not deprive Bernstein of-the right to demand the payment-of the undisputed balance of the debt, out of the proceeds of the land when sold; and we cannot really understand the pretence under which the administratrix opposes such payment.

The conclusion at which we have arrived compels us to remand the case, in order that the account may be readjusted and a distribution ordered in accordance with these views.

It is, therefore, ordered, adjudged and decreed that the judgment-appealed from be annulled, avoided and reversed, and that the case be remanded to the lower court, to be proceeded with according to law and to the views herein expressed; the costs of appeal to be paid by the succession.

On Reheabing.

The opinion of the Court was delivered by

Levy, J.

In this case, the rehearing applied for by the appellants, I. Bloom & Oo., and the appellee, J. Bernstein, having been granted, we proceed to restate the account of administration. Adhering to our former decree, the privilege of Bloom & Co. in the proceeds of the sale of the undivided half of the tract of 520 acres of land, is recognized, as-also that of Bernstein in the other undivided half thereof. The proceeds of the sale of the whole tract amount to $1068 80, from • which must be deducted the costs of sale, $25 34, and the proportion of taxes chargeable to the land, $221 31, in all $246 65, leaving net proceeds,. $822 15. Bernstein’s privilege amounted to $413 58; the half of the proceeds affected thereby is $411 07£, to which latter sum he is entitled; the remaining half of these net proceeds, $411 07|, belongs to I. Bloom & Co. on account of their privilege, and these sums will be thus paid.

The balance for distribution among the general privileged and ordinary creditors must bs corrected as follows: The sum of $353 24 (erroneously carried to the fund for such distribution), and $55 31 (the proportion of taxes chargeable to the property, immovable and movable, unaffected by Bloom & Co.’s and Bernstein’s privileges), must be deducted from said balance,' so that there will remain for distribution $855 69 to be distributed to general privileged claims, or .497 per cent.* 1720.80, to be paid out of $855 69=.497.

It is, therefore, ordered that our previous decree herein remanding-the case, be set aside, and it is now ordered, adjudged and decreed that the judgment of the lower court be amended as hereinabove set forth,, and in all other respects, as to the judgment of said lower court, it b& affirmed at the costs of the said succession.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 1020.
    Eliza P. Hendricks, Wife, vs. Thompson Wood, Husband. Wood & Roane, Intervenors.
    On Motion to Dismiss.
    The amount of the claim, and not that which may be proved, is the test of the jurisdiction-of this Court.
    Oh the Merits.
    In default of proof of the husband’s financial embarrassment, the wife, suing for a separation' of property and recovery of paraphernal rights, should he nonsuited.
    APPEAL from the Fifth District Court, parish of Ouachita. Blchardson, J.

      Cobb & Gunby for Plaintiff and Appellant:
    Hirst — A wife has a claim against her husband for the proceeds of her slaves sold by him before the close of the war.
    Second — Confederate money was a good consideration during the existence of the Confederate Government, and where Confederate money belonging to the wife was used by the* husband, she can recover its value in United States currency or gold.
    Third — Where the wife's mortgage was recorded after January 1st, 1870, it was not lost, but* took, effect from the date of its record.
    Hourtli — It is not necessary, in order to obtain a judgment of separation, to prove that the-husband is insolvent. It suffices to show that his affairs are disordered or embarrassed.
    Hifth — Art. 2425 R. C. C. does not embrace all the grounds for which a separation, of property may be sued for and obtained.

      Franklin Garrett for Intervenors and Appellees;
    Hirst — Plaintiff offered no evidence to establish her allegation that her husband’s affairs were-disordered.
    Second — Her tacit mortgage perempted by non-registry before 1st January, 1870.
    Third — Although plaintiff demands $2700, it is clearly fictitious, she having offered to prove* only $500 thereof. The Court is without jurisdiction, ratione materice, the matter in dispute not exceeding $1000.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

This is an action for separation of property, in which plaintiff prays for a moneyed judgment against her husband for $2700,. . amount of her paraphernal funds alleged to have been received and converted to his own use by her husband.

Under the pleadings, this case presents an issue involving an .amount clearly within our jurisdiction; the fact that plaintiff may utterly fail, under the evidence, to prove the whole or any part of her -claim, cannot be considered in determining the question of jurisdiction. The amount of the claim, and not the amount which may be proved, affords the test of our jurisdiction.

Appellees’ motion to dismiss, resting on the ground that plaintiff’s demand is fictitious under the evidence, is untenable, and the motion is, therefore, denied.

On the Merits.

Plaintiff charges that she had received, as donations from her father, a valuable mare and two slaves, which property was sold by her husband for an aggregate amount of $2750, which he received and converted to his own use, and that his financial embarrassment induces her to believe that his estate will not be sufficient to satisfy her claim for ■ the restitution of her paraphernal funds, composed and converted as stated above.

Wood & Roane, creditors of the husband for $2878, intervened in the suit, and alleging that this action was a fraudulent device, calculated to defraud the husband’s creditors, prayed that the wife’s demand be rejected.

The husband made no defence, and plaintiff appeals from a judgment of nonsuit.

Plaintiff has introduced no evidence in support of the alleged sale by her husband of the mare, which is alleged to have been donated to ■her by her father and to have been sold by her husband, and the record is equally silent as to the alleged sale by him of a negro boy named 'Willis for the sum of six hundred dollars.

In support of the alleged sale for $2000, in Texas, of the slave Abraham Owen, plaintiff relies upon the testimony of W. T. Oliver, who testifies that he purchased the slave from the defendant for ‡3000 in ■ Confederate money, worth about $500 in gold, and on the testimony of Abraham Owen, the then slave, himself, who testifies that he was sold for ‡2000, which he saw counted and handed to the defendant.

Such evidence is of the weakest kind; it is contradictory, and would ■ embarrass in reaching a proper disposition of the cause, which, however, turns upon 1 he following point:

The record contains no evidence whatever in support of the alleged embarrassment of the husband in his affairs, and contains no proof of the amount or value of his property, nor any statement of his indebtedness, so as to allow us to appreciate the danger of plaintiff’s losing her paraphernal funds. Her counsel contend that the very fact of the intervention showing a large indebtedness to intervenors, is sufficient to • support'her allegations on this point.

Our answer is; that we have no evidence to show the financial position of the husband, or the relative proportion between his assets and. his liabilities.

And in default of such proof plaintiff cannot recover judgment, and' the District Judge correctly nonsuited her. Hanna vs. Pritchard, 6 An. 134; Lacomb vs. Her Husband, 8 An. 485; C. C. 2425.

The District Judge did not err in overruling plaintiff’s exception to the right of intervenors’ appearance in the suit. Appellant’s silence on this question in her brief, justifies the conclusion that her counsel,., acknowledging the weakness of their position, have abandoned their exception. Our law does not favor suits of separation of property, and holds out to creditors every facility for the protection of their rights. 10 An. 85; 31 An. 405.

It is, therefore, ordered, adjudged and decreed that the judgment. of the lower court be affirmed with costs.


text:
    No. 1003.
    Wm J. Buford vs. C. M. Tidwell.
    This Court will not disturb the verdict of the jury as to the amount of damages found by them, in a case where the appreciation of such damages is essentially within their province.
    APPEAL from the Sixth District Court, parish of Morehouse. Brig- - ham, J.

      Newton & Hall for Plaintiff and Appellee.

      Ellis & Todd for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff sues for damages in the sum of $1457 52, for the burning of a gin-house and appurtenances, through the fault and' negligence of defendant, who was then his lessee, and for damages - occasioned to his orchard, situated on the leased premises, through the • fault of defendant.

The defense was a general denial, followed by a plea in reconvention for $240, as damages sustained by the defendant in defending this suit.. The case was tried by a jury, who found a verdict of $250 in favor of plaintiff, and defendant appeals. Plaintiff moves that the judgment be amended so as to increase the amount of damages allowed him by the • jury.

Th.e evidence in the record discloses the following facts:

That defendant leased for the year 1880, and took possession of plaintiffs plantation, under a written lease, by which he bound himself to take good care and to keep in the same repairs, in which they were at the time of the lease, of the fences and buildings and other improvements situated on the leased plantation, as well as of a fruit orchard situated on the place, the use of which orchard, containing about four acres of land, was reserved for the lessor.

That in the month of April, while preparing for cultivation a piece of new land, situated near the gin-house, the lessee rolled together in heaps a quantity of logs, the remnants of deadened trees, and caused the same.to be fired for the purpose of burning them out of his way; that the logs burned during several days, and the fire spreading among dry grass and weeds on that tract of land, was communicated to standing dead trees, from which sparks fell on, and set fire to the gin-house twice. The first time was on a Saturday, during defendant’s absence from the place, and the fire was on that day put out and the building saved through the efforts of several of defendant’s laborers, one of whom notified him of the occurrence on his return home that evening. Although the log fire was still continuing, and although the defendant was well aware of the imminent danger to which the gin-house was thus exposed, it does not appear that he took any steps, by establishing a watch around the building or otherwise, to prevent the disaster which he had himself foreseen at the time that he made the lease, as shown by his remarks then made to the lessor.

On the next day, Sunday, while the defendant was in his house, entertaining some visitors, 'the wind increased, the gin-house caught fire, and was burned down and totally destroyed.

The mere statement of these facts, which are abundantly proven to our satisfaction by the evidence in the record, makes out a clear case of negligence and imprudence on the part of defendant, who must be held responsible for the loss thus incurred by plaintiff. O. O. 2317.

The testimony is somewhat conflicting as to the value of the property thus destroyed, and which affords the only measure of the damages to which plaintiff is entitled. But the jury, who saw and heard the witnesses, who were of the vicinage, and who were doubtless familiar with the plantation leased, and were the best judges of the value of the building and its appurtenances, fixed the damages at $250, and, hence, we would not be justified in disturbing their verdict on a point so eminently within their exclusive province.

The evidence fails to satisfy us that plaintiff’s orchard was in the least degree injured or damaged by any act of defendant, and' we must therefore refuse to amend the judgment appealed from, with a' view to an increase of the damages allowed by the jury..

The view which we take of the case obviates the necessity of disposing of defendant’s plea in reeonvention, which cannot be entertained in the face of a decision favorable to plaintiff in his action for damages.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be affirmed at defendant’s costs.

Mr. Justice Todd takes no part in this decision.


author: Fenner, J.

text:
    No. 1027.
    Meyer, Weiss & Co. vs. W. S. Logan, Sheriff, et al.
    Appeal dismissed by this Court ex proprio motu, the matter in dispute being less than $1000. WTien third persons enjoin the seizure and sale of property, it is the value of the property which vests this Court with jurisdiction, and not the amount of the judgment enjoined. Re-affirming previous Decisions.
    APPEAL from the Fifth District Court, parish of Ouachita. Richardson, J.

      Richardson & McJSnery for Plaintiffs and Appellees.

      Gobi) & Guriby for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

The insufficiency of the amount in dispute in this case to vest us with appellate jurisdiction over it, is so apparent on the face of the record, that we are compelled to notice it ex proprio motu.

John M. Gould & Co., holding a judgment against J. T. Cole for $1450, seized under execution thereon promissory notes, belonging to their debtor, amounting to.less than $1000.

The plaintiffs, third persons, enjoin the seizure, claiming superior rights upon said property, entitling them to prevent the seizure, the nature of which rights it is not necessary, for the purposes of this ease, to state. It is sufficient to say, that they do not dispute, in any manner, the validity of Gould & Oo.’s judgment, which is not involved. Their position cannot be distinguished, in principle, from that which they would occupy, if they had enjoined on the ground that they were owners ■of the property seized.

There is nothing in dispute except the property.

In such case, it is well settled that the right to appeal is regulated by the value of the property. Testart vs. Belot, 32 An. 603, and authorities there cited. Wood vs. Rocchi, 32 An. 1120.

It is, therefore, ordered that the appeal. be dismissed at appellants’ costs.


author: Levy, J.

text:
    No. 993.
    The State of Louisiana vs. S. L. Cox.
    The Record showing thal the District Attorney, with leave of the court, filed the indictment, . etc., the legal presumption, is that the leave of court was first obtained.
    The Record showing that the accused was in court when his trial commenced, the burden of proof is on him to establish that he was not present at the rendering of the verdict, if such were the fact.
    It is competent for the District Court to have its Minutes corrected nunc pro tunc, before they are approved, to show the proceedings as they really and truly took place.
    APPEAL from, the Tenth Judicial District Court, parish of Red River. Logan, J.

      J. H. Pierson for Defendant and Appellant.

      W. P. Sail, District Attorney, for the State, Appellee.
   The opinion of the Court was delivered by

Levy, J.

S. L. Cox was tried on an information charging him with . the offence of “ feloniously wounding a hog, with the intent to feloniously steal, take and carry away said hog,” convicted by a jury and sentenced to two years’ imprisonment, at hard labor, in the State penitentiary and a fine of one dollar, from which sentence and judgment thereon he has appealed.

The grounds upon which the accused seeks a reversal of this judgment are embodied in the assignment of errors filed in this Court, viz :

1st. That, the information was filed without leave of the Court first obtained.

2d. That the accused was not present in Court when the verdict was rendered against him.

3rd. That the lower court erred in ordering the correction of min- ■ utes after the order of appeal had been entered, having divested itself ' of jurisdiction after perfection of appeal.

4th. That such correction was made ex parte, without giving the appellant an opportunity to show that the original minutes were correct and required no correction.

1st. The minutes contain the following entry: “And now comes the district attorney into open court, in proper person, and, with leave of the court, files the following bills,” etc. We think the fair and reasonable interpretation of this is, that the leave of the court was first obtained. It is a well settled rule of practice that no document can be filed in open court without the consent of the court. Here, the leave or consent of the court was had, and the objection is one to mere phraseology of the entry, and has no weight, being a mere verbal criticism.

2d. The second shows that, on the 5th of May, 1881, “ accused in open court, the trial was proceeded with in all respects according to law. The jury being duly charged, retired, and after due deliberation, returned into open court * * * the following verdict.” This entry of itself was sufficient, and the objection urged by accused must fall.

In State vs. Collins and Kinney, 33 An. 152, we held: “The record does not show that any interval elapsed during the time of the trial and the reading of the verdict. The presumption is, that the prisoners were continually present from the beginning to the end. Where the presumption of their presence exists, and the fact of their absence, without waiver, can be established, the burden is upon them to rebut the presumption.” 33 Ills. 276; Hill vs. State, 17 Wis. 675.

3d and 4th. There was no error in the correction of the minutes (unnecessary as such correction was, as affecting the validity of the proceedings). The order for appeal, it is true, had been granted, but the order had not been signed, nor the minutes of the court approved. The order was not perfected and final until that had been done, and it was competent for the court to correct its minutes nunc pro time, in order to show the proceedings as they had really and truly taken place. State vs. Onmacht, 10 An. 198; State vs. Corby Mason, 32 An. 1018.

The information was properly filed, the proceedings on the trial were properly had and conducted, the sentence and judgment were properly rendered, and should not be disturbed.

The sentence and judgment appealed from are, therefore, affirmed*


text:
    No. 1022.
    H. D. King, Administrator, vs. Wm. T. Atkins et al.
    On Motion to Dismiss.
    When a judgment by Default has been taken against one of two Defendants, the other Defendant having filed an Answer, and, after trial of the case, Plaintiff’s demand is rejected and he appeals, the Appellees cannot pretend that there is no judgment as to the Defendant who made no appearance and that, as he is a necessary party, the Appeal should be dismissed.
    On the Merits.
    The rule of evidence in Louisiana, differently from that established by the Supreme* Court of the United States, is that a witness, on the cross-examination, may be interrogated upon matters, unconnected with those upon which he was examined in chief. Previous Decisions affirmed.
    Simulation, from its nature, can, usually, be proved only by indirect and circumstantial evidence} and when facts are shown, which are sufficient to throw doubt upon the reality of the sale, the burden of proof is shifted to the parties who know the truth and can establish it by their testimony.
    When, under such circumstances, they fail to furnish the evidence clearly within their power,, all the presumptions of law are against them.

      Sucli prima facie caso of simulation, if the partios charged with it, do not even attempt to rebut it by their own testimony, will be conlusive and sufficient to set aside the transaction complained of. •
    APPEAL from the Fifth Judicial District Court, parish of Ouachita. Stubbs, special judge.

      Boatner & Liddell for Plaintiff and Appellant: .
    The homologation of a tableau of distribution does not bar a second administration of the succession, where the funds represented by the tableau to be in possession of the administrator have never been distributed, and tbe second administration is provoked for the purpose of bringing into the succession property held by third persons under simulated titles; aud in such proceeding the administrator is the proper party to represent the succession.
    The plea of res judicata will not avail one not a party to the judgment or proceedings, urged in bar. Nor is the plea available against an action attacking those proceedings as simulated, or null for any other cause.
    An administrator cannot be estopped by the action of a creditor of the estate he represents.
    The creditors of a succession can only assert its rights against third persons through an administrator. 29 An. 574.
    The administrator is primarily the representative of the creditors and has the authority to take all legal measures for the protection of their interests. 2 An. 923 ; 4 An. 169; 10 An. 723.
    The creditors of a succession would not he heard to deny that the representative of a succession had in hands the funds which he proposed to distribute, or that the sales of property from which those funds purport to have been realized, were simulated. If the administrator accounts for and pays over the funds so claimed to have been realized, the creditor would be without interest to question the sale upon that ground. The right of the creditor to do so arises only on the default of the administrator to distribute the proceeds. 29 An. 574.
    When the vendor remains in possession the sale is presumed simulated. O. O.
    The presumption “ omnia rite esse acta ” &c., is one of fact, and is weak or strong according to the circumstances of the case in which it is applied. Where the officer whose act is invoked as supporting the presumption is himself a party to the suit in which that act is attacked as fraudulent and collusive, and as inuring to the benefit of that officer, the presumption is entitled to little weight.
    The allegations of fraud and collusion need to be supported only by prima facie evidence. The onus to disprove them is shifted to the party holding the affirmative of the issue, and the allegations unless disproved, will be taken as true.
    Simulation can usually be proved only by indirect and circumstantial evidence, and where a prima facie case of simulation has been made out by such evidence the onus probandi is shifted to the defence who must establish the reality of the sale.
    The iighfc-of cross-examination to all matters is relevant to the issue, and is not limited to masters elicited on the examination in chief.
    Where a party, whose title to valuable property has for years been questioned and attacked as being simulated, has opposed by every means in bis power the investigation of his title, and when sworn as a witness iu his own behalf, avoids giving testimony upon the fact of simulation vel non by a.technical objection, the presumption of simulation is conclusive.
    Motion to Dismiss.

      Cobb & Gunby for Defendants and Appellees :■
    When all the parties of record who have an interest in the final result of the judgment or that it should remain undisturbed are not made parties to the appeal, the same should be dismissed, if tbe fault be not attributable to any one else than appellant for failure to cause the appeal to be properly brought before the Court.
    Second — When in an action by a subsequent administrator of a succession, the former having been removed, to declare as fraudulent and simulated a probate sale made during the former administration, the vendee and administratrix are made parties defendant and the prayer of the petition is that there be judgment against defendants in solido for accrued and accruing rents for several years, amounting to over $3000, the administratrix must be made a party to the appeal.
    Third — When judgment by default is taken as to one party and no further steps or proceedings are had as to that party, and no answer filed by that party, the other party in interest having appeared in his own behalf, joined issue with plaintiff and on trial obtained judgment in favor of defendants, plaintiff appealing by motion in open court, notice of judgment by default and citation of appeal must issue to the co-defendant not represented by counsel, and against whom the judgment by default was not proved up and made final, or the appeal should he dismissed. C. P. 575, 898; 3 R. 436; 5 R. 224; 10 R. 399; 12 R. 180; 5 An. 174; 10 An. 650 ; 12 An. 755, 801; 18 An. 177, 281; 19 An. 136, 141, 296; 21 An. 238, 618; 23 An. 502.
    First — After a succession has been administered, all the property sold, final account filed and opposition thereto tried, the rights of all the creditors fixed by final judgment, no new administration of same can be granted. The rights of creditors and others are fixed by the final judgment on the account, and if third parties hold property alleged to belong to the succession, either under simulated or fraudulent title, parties having rights fixed by the final judgment must proceed directly against the party holding such property of the succession.
    Second — When by the terms of plaintiff’s petition both fraud and simulation are charged against defendants, plaintiff shall he compelled to elect upon which he chooses to proceed.
    Third — When an insolvent succession has been opened, the personal property sold at public sale and proceeds distributed among creditors having special privileges, and afterwards, on petition of the creditors, the immovable property, subject to general privileges, is sold by the sheriff, whose proces verbal and deed recites that the terms of the bid are complied with by the purchaser, final account embracing the price and amount of the bid of such purchase filed, and proceeds distributed, opposition of creditors to such account being filed, claiming a share in the proceeds of the sale, and not -denying that the same was bona fide, and after final judgment had fixed the liability of the administratrix and rights of creditors, the creditors after issuing execution on said judgment and failed to realize amount from administratrix, cannot be heard to afterwards set up the simulation and fraud of the sale of which they have claimed the proceeds. They are estopped by their judicial admissions, and claiming the proceeds and the validity of the sale is, as to them and all the world, res adjudícala.
    Fourth — A judgment whether placed on the tableau of distribution and ranked by the court of last resort or not, becomes null and void, as to all parties, in ten years after its rendition, if not revived as required by law. Sureties paying the judgment and becoming subrogated thereby to the rights of the judgment creditor against co-sureties or the debtor, are in no better condition than the judgment creditor could have been had he continued to own the judgment. Creditors by open account whose claims have been placed on tableau and fixed by judgment, having allowed ten years to run without having their claim reallowed by the administrator and revived, are barred by prescription, though there he subsequent litigation as to their rank, privileges, &c. Simulation or fraud is not presumed against a party in possession with prima facie valid title made at public sale. The plaintiff alleging must prove enough to throw the onus on the vendee before he can be compelled to offer any evidence to support his title.
   The opinion of the Court was delivered by

Fenner, J.

The motion to dismiss on the grounds that there is no judgment as to Mrs. Gayle, one of the co-defendants and a necessary party, and no appeal as to her, has no merit.

Both the defendants were cited. The case was put at issue as to both — by default as to Mrs. Gayle, and by answer as to W. T. Atkins. Upon these issues the case was tried. Had judgment been in favor of plaintiff, the judgment by default against Mrs. Gayle would have been confirmed and judgment would have gone against both defendants. As the decision rejected plaintiff’s demand, of course the default was not confirmed, and judgment was rendered “for defendants.”

The appeal was taken, at the same term, by motion in open court, and, therefore, both defendants are properly before us as appellees.

The motion to dismiss is denied.

This suit is brought to annul, as a fraudulent simulation, a sale of a bouse and lot in Monroe, made by the sheriff under a writ of sale issued in the succession of ¥m. H. Gayle, to which succession the property belonged.

The following statement of anterior facts is necessary for the understanding of the case.

W. H. Gayle died in 1867, leaving property and large debts. His widow, Mrs. Ann L. Gayle, qualified as administratrix of his succession.

The personal property was first sold, and a provisional account filed by her, which, after trial of oppositions thereto and appeal to this Court, was amended and homologated.

Thereafter, at the instance of creditors, an order was issued for the sale of the real estate in the parish of Ouachita, including the property now in controversy.

W. T. Atkins became the adjudicatee of the last-mentioned property for $5000, and received for the same the joint deed of the administratrix and of the sheriff, in which the administratrix, alone, acknowledges to have received from him the price of .$5000.

The administratrix then filed her final account, in which she charged herself with the above $5000, as well as with proceeds of sale of other property. After distributing other funds in payment of special and general privileges, there remained $5456 50, being the above $5000, and $456 50 proceeds of other property, which she separately distributed as follows : to the balance of general privileges $3631 13, and the rest ($1834 27) to go to judicial and legal mortgages on the property in favor of herself. To this account sundry oppositions were filed,, disputing several of the general privileges and the mortgages claimed by the administratrix, and also demanding that she should be charged with rents of the property here involved during the time of her administra- ■ tion while she had occupied it as her residence.

Upon appeal to this Oourt, the account was amended, by rejecting sundry privileges allowed on the account, rejecting the administratrix’s claim to a legal mortgage, charging her with $3000, as rents, and with $2175, as proceeds of sale of other property not properly accounted for, and in other respects; and it was ordered that, “ as thus amended, the account of the administratrix be approved and homologated and the funds distributed accordingly.”

Upon her failing to settle with creditors according to this account, a demand execution was issued against her and returned unsatisfied. Thereupon, the creditors, finding that the administratrix had no property subject to execution, and that the surety on her bond was insolvent and worthless, and convinced that the sale to Atkins was' a simulation, and that he had never paid the price, brought a direct action, in their own right, against the present defendants, setting • up these facts and praying that; unless Atkins should comply with the condition of the sale and pay the price, the property should be decreed to belong to the succession, and should be restored thereto.

To this suit, Atkins interposed exceptions, the nature of which it is not necessary to state, which were sustained by this Court, which said that, on the failure of the administratrix to pay over the proceeds of the sale, the remedy of the creditors was to apply for her destitution from office and the appointment of a new administrator “ who would then inquire whether the price has, or has not, been paid by Atkins, and whether he holds under a real or simulated title.” Swan vs. Gayle, 29 An. 574.

Acting on this express suggestion, the creditors appliéd for, and obtained, the destitution of Mrs. Gayle, and the appointment of the present plaintiff as administrator, who brought this action, alleging, in substance, that the adjudication of the property to Atkins, who was the brother of the administratrix, was an attempt, by collusion between them, to place the property beyond the reach of the creditors; that the pretended price had never been paid; that Atkins had not the means to make the purchase and had not done so; that plaintiff had called upon him for payment of the pretended price, which had been refused; that the administratrix, who was residing on the property at the time of the sale, had continued to reside there ever since, and there had been no real change of possession; and he demands the nullity of the sale that the property be decreed to belong to the succession and restored to his possession as administrator, and for rents at the rate of $600 per annum.

Several technical defenses are interposed, as follows:

1st. That the succession of W. H. Gayle was closed by the homologation of the final account of the administratrix; that a new administrator, therefore, could not be appointed, and that plaintiff is thus without capacity to stand in judgment.

Manifestly the homologation of the final account did not close the succession or terminate the administration thereof. The homologation only fixed and defined the duties of the administratrix in paying out and distributing its funds in accordance therewith. Not until she had actually complied with the judgment, could she be discharged; and, as she never did comply, her office did not terminate, the succession remained open, and the court was entirely competent to destitute her, and appoint a new administrator.

2nd. The petition was excepted” to, as combining inconsistent actions, viz, the revocatory action and the action in declaration of simulation, and plaintiff was required to elect. Without deciding whether or not those two actions are inconsistent, we deem it sufficient to say, with the District Judge, that the petition discloses a sufficient action to declare a simulation, and that no other remedy is asked.

3rd. The plea of res judicata. This plea, in a technical sense, certainly has no application. It will not be pretended that the cause of action set up in this case has been determined by any prior judgment. Counsel, however, evidently intends to plead mere estoppel resulting from prior judicial allegations and proceedings, all based on the supposition that this property had been really sold, that the price had been paid, and was actually in the hands of the administratrix, which suppositions were based on the official declarations of the administratrix, which the creditors had no right to question or attack and which they were bound, at least in the proceedings referred to, to accept as true.

There is absolutely nothing in those proceedings to estop the present plaintiff, as representative of the creditors, to prosecute this action based upon the failure of the former administratrix to pay over the funds which she pretended to have in hand, upon the natural consequent inquiry as to whether she had ever received said funds, and upon the alleged discovery of the fraudulent simulation now charged.

áth. The exception of prescription to the claims of creditors represented by the administrator, does not “lie in the mouths” of defendants, is irrelevant to the present issue, and cannot be raised between the present parties. Moreover, in the judgment of the Supreme Court on the final account, rendered in July, 1875, we find a judicial recognition of the claims of these creditors, which is a judgment in their favor, and certainly not perempted.

Orr the Merits.

Let us present a tableau of the facts as they appear to our minds, upon the record.

1st. Mrs. Gayle and Atkins are brother and sister, living together in the closest relations of family intimacy.

2nd. The property in controversy was the family residence of Mrs. Gayle, occupied by her up to the time of the sale, Mr. Atkins, unmarried, 'living in her family. After the sale, the house continued in precisely the same occupation, showing no change of possession, except that constructive change resulting from co-occupancy and based on the legal principle that possession follows title. There were no such actual delivery and exclusive possession by the vendee as, of themselves, to raise a powerful presumption of change of ownership. On the contrary, the possession remained practically the same before as after the sale, and was entirely consistent with the continued ownership of Mrs. Gayle. Although the taxes have since been paid in the name of Atkins, the payments are not proved to have been made with his own money.

3rd. At the time, of the sale, Mrs. Gayle was urging mortgage claims against the succession, which, if allowed, would have absorbed a large portion of the proceeds of the sale, and which might, therefore, have reasonably suggested a sham sale, under the desire to retain her home, and under the expectation that a large part of the proceeds would go to herself.

4th. When the proceeds of sale were demanded of her, after the final judgment on her account, she said she had no money, and from the return on the execution, it appears she had no property. Now, if she received this money, she must either have had it, or she must have spent it; and as she has it not, and does not show that she has spent it, the presumption arises that she never had it.

5th. When the title of Atkins was attacked in direct action by the creditors on the ground of simulation, instead of meeting and refuting the charge promptly and squarely, he defended on technical exceptions, and thus defeated that action, showing an unwillingness to meet the issue, which is always suspicious in such cases.

6th. When this suit is brought, Mrs. Gayle, though duly cited, suffers issue to be joined by default, and does not even file a judicial denial of the truth of plaintiff’s allegations.

7th. Her co-defendant resorts to several successive, exceptions in order to avoid pleading to the merits.

8th. The evidence establishes that Atkins, at the date of said sale, was not regarded as a man of means or as likely to have at his command so considerable a sum of ready money as five thousand dollars, and that his occupation had been exclusively in subordinate clerical positions in the offices of the Register in Bankruptcy and clerk of court. Although some evidence was offered showing his revenues and his economical habits, and establishing that it was possible that he might have accumulated such an amount of money, no witness swears to any knowledge of his ever having actually had any considerable means, and he himself, when on the stand, fails to prove that he ever did.

9th. Mrs. Gayle does not appear as a witness in the case, and -Mr. Atkins, though taking the stand, confines his testimony to the question of his revenues during certain years. ’ He fails to swear either that he had the means to make this purchase, or that he did make it, or that he ever paid the price, and fails to contradict, in his evidence, any allegation of the petition. When plaintiff’s counsel sought, on crossrexamination, to question him touching the real issues of the case, he was met by the objection that the cross-examination must be confined to the matters upon which he had been examined in chief, and that, in order to examine him on other matters, plaintiff must make him his own witness. This objection was sustained by the judge a quo, in opposition to the well-settled practice of Louisiana courts. Durnford vs. Clark, 1 M. 202; Davidson vs. Lallande, 12 An. 828; Nicholson vs. Desobry, 14 An. 84. Neither the judge nor opposing counsel quotes any contrary Louisiana authority, nor have we discovered any. The ruling of the Supreme Court of the United States is in accord with the judge’s ruling; but the rule adopted by this Court is followed in England and in many of the States. Greenleaf on Ev. We see no reason to change it, and hold the judge’s ruling to be clearly erroneous.

The laws which govern intellectual belief, like the dictates of consciousness, are imperious and cannot be disobeyed.

The mind, after contemplating and weighing the facts and circumstances above stated, is irresistibly convinced that the allegations of plaintiff’s petition must be true. It recoils from any other hypothesis, as absolutely inconsistent with the rules and motives of human conduct. Why should Mrs. Gayle fail to deny the allegations of plaintiff’s petition if they were not true ? Why should both defendants fail to appear • and testify to the verity of the sale and the payment of the price, if they could truthfully swear to those simple facts and thereby put an end to a litigation, involving not only their means, but, to some extent, their reputations?

These questions admit of no answer, acceptable to reason, except that if they had testified at all, their statements would not have sustained their defense.

The facts as to these transactions were necessarily known to them, and may not have been- known to any other person whatever. To say that a charge of simulation could not be established without absolute affirmative proof of facts, lying within the knowledge of no one except the parties charged, would, in effect, abolish the action for that purpose, by imposing upon the plaintiff an impossible task.

The law is guilty of no such absurdity.

The averment of plaintiff that no price was paid, as the consideration of this sale, is a negative averment. The general rule is laid down by Mr. Greenleaf to be that “when the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, that averment is taken as true unless disproved by that party.” 1 Greenleaf Ev., section 79.

The same doctrine has been applied by this Court in many cases. 8 N. S. 462; 14 La. 448; 4 An. 295; 1 La. 379; 15 La. 60; 4 An. 135.

With reference to attacks upon titles on the ground of simulation, the doctrine is not extended to the point that the mere averment that there was no real sale and no price paid, puts the opposite party upon proof of reality and payment. But the truth is recognized that simulation, from its nature, can, usually, be proved only by indirect and circumstantial evidence; and when circumstances are established sufficient to throw doubt upon the reality of the sale, the burden of proof is shifted to the parties, who know the facts and can establish them by their evidence. When, under such circumstances, they fail to furnish the evidence clearly within their power, all the presumptions of law are against them. 2 N. S. 66; 12 R. 95; 6 An. 646; 10 An. 647; 13 An. 397; 28 An. 928; 8 An. 61.

We think the facts, and acts and circumstances established by the record, independent of the failure of defendants to verify, by their own evidence, their defense, are sufficient, to establish such prima facie proof ,of simulation as to throw the burden of contradictory proof upon the defendants, and that, unless this proof is furnished by other evidence in the record, their failure to testify must be conclusive against them.

The judge a quo concluded that the record furnished proof that Mrs. Gayle had paid out to the creditors a considerable amount of money which could have been received from no other source than from the price of this sale paid to her by Atkins. We have examined very critically the accounts and vouchers, and fail to discover proof that Mrs. Gayle has made any payments since the date of the sale, beyond the amount of funds in her hands from other sources. The original vouchers produced by defendant in this Court are dated long prior to the sale.

We have followed carefully the statements and calculations made by the able counsel on either side. We may admit the sufficiency of the accounts to establish the payment of items stated therein to have been paid; but certainly they do not establish the payment of other items set down therein as to be paid, in absence of vouchers or other proof.

There is no proof of any payments made since the sale which might not have been paid from other sources. We have no concern with the question of where Mrs. Gayle obtained the means to make payments made long before the sale. They could not have been made from the price of the sale.

We cannot confirm .the lower judge’s opinion on this point, and, therefore, the record leaves the defendants without any proof whatever of the reality of the sale, the burden of which proof was, as we have shown, thrown on them.

They oppose to strong circumstantial evidence detailed by us literally nothing but the paper title, the verity and reality of which are the questions in controversy, which might have been, and were not, settled on the simple oaths of the defendants themselves.

To believe that Mrs. Gayle received this price, is to convict her of embezzlement of funds confided to her in a fiduciary capacity, of which we do not believe her to have been guilty. It equally convicts both her and Atkins of an outrage upon common sense and their own interests, in their failure to prove simple facts within their own knowledge, and the concealment of which, if favorable to their ease, could have no possible motive. Our solution is the following: In entering upon this transaction, the defendants contemplated no wrong upon any person. They honestly believed, on legal advice, that Mrs. Gayle had a valid legal mortgage on the property, which would absorb'a large portion of the price and enable her to arrange for payment of the balance. Naturally anxious to retain her home, and forbidden to purchase in her own name, her brother bought for her. The decision of the Supreme Court nullifying her mortgage and subjecting her to onerous obligations, left her unable to carry out the arrangement. Now, though leaving their opponent to enforce the rights of the succession at law, both defendants are too honorable and conscientious to swear to non-existing facts, for the purpose even of saving a home.

The demand of plaintiff must prevail.

We find the admissions in the record that the property is worth thirty dollars per month as rent from date of sale, and that W. L. Atkins has paid taxes thereon to the amount of $963 25.

As to Mrs. Gayle, she being unrepresented and, therefore, not a party to the admission, it has no effect as to her, and there is no evidence upon which we can base a judgment against her for the rents.

As to Atkins, his possession of the property is disputed, and the nature and conditions of his co-occupancy with Mrs. Gayle are not established with sufficient certainty for us to apportion or decide the extent of his liability.

On the whole, we think it best to leave the question of rents on one hand, and taxes on the other, to be settled in another suit.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be avoided and reversed; that the judgment by default against Mrs. Ann L. Gayle be now confirmed to the extent herein fixed; that there be judgment against both defendants setting aside and declaring null and void the adjudication to W. L. Atkins of the property known as the “ Betin House,” in the Oity of Monroe, and described in plaintiffs petition herein; declaring the said property to belong to the succession of Wm. H. Gayle, and that plaintiff, as administrator of said succession, be put in possession thereof; that the demand of plaintiff for rents be rejected as in case of nonsuit; and that defendants pay costs of the lower court and of this appeal.


author: Todd, J.

text:
    No. 1008.
    Charles Tilden, President of Bank of Louisville, vs. Succession of C. H. Morrison.
    A mortgage, ■which has not been recorded, ceases to have any effect after ten years, even between the parties to the contract. C. 0., 3369.
    A PPEAL from the Fifth Judicial District Court, parish of Ouachita. Richardson, J.

      Richardson & McEnery for Plaintiff and Appellant:
    3Tirst — •‘When a creditor holds but one claim against the debtor, and the debtor writes to him about the "debt you hold against me,” the promises made will be held to have been made in reference to the claim held by the creditor, without the debtor’s specially describing the claim.
    Second — Prescription is interrupted whenever the debtor acknowledges the adverse right against which it is running. "When the debtor in his letters to the creditor designates a time when he will be able to pay, or hopes to pay, or makes excuses for not paying, and asks indulgences which are inconsistent with an absence of liability, prescription will be interrupted.
    Third — The omission to re-inscribe a mortgage only affects its rank, and does not destroy the mortgage itself.
    [Fourth — A mortgage not re-inscribed at the death of the mortgagor will take its rank according to that which it had at the death of the mortgagor. His death does not destroy the mortgage.
   The opinion of tbe Oourt was delivered by

Todd, J.

This is a suit on a promissory note executed by the deceased and secured by mortgage on lands described in the petition. The note is dated June 1st, 1867, and payable February 5th, 1868. The suit was instituted on the 14th March, 1879. The defences urged in the answer, are the prescription of the note and peremption of the mortgage.

On the note is indorsed an acknowledgment, signed by the deceased , in the following words:

I hereby acknowledge the within note to be due by me this 27th January, 1873.”

This acknowledgment was followed by others made in letters. The last of these letters, bearing date July 13, 1876, less than five years prior to the institution of the suit, 'contains the following language :

“ I hope this winter to be able to make or propose some kind of a settlement of these old matters. Would be glad if your clients would take lands for their claims. * * * ■ * * * * * I will have the mortgage re-inscribed in time, at my costs, as there is time till May next. I prefer not re-inscribing till I can see what I can effect this winter.”

It was fully shown by testimony, properly admitted (23 An., 455, succession of Kugler), that the debt referred to in' this and previous letters, was the debt sued on. We think the letter quoted shows a clear recognition of the debt, and especially that part of it which refers to the mortgage securing the debt as still subsisting, and in which the writer offers to re-inscribe it at his own cost. The mortgage could have no existence, anddts re-inscription would be a vain thing except on the hypothesis that the debt, of which the mortgage was but the accessory, still existed and was still owing by the debtor. This certainly constituted a plain and unmistakable acknowledgment of the debt, which interrupted prescription. 7 An. 201; 25 An. 512; 27 An. 70; 30 An. 1263.

In regard to the mortgage, the record shows that part of the lands mortgaged lay in the parish of Ouachita and part in other parishes, but the act of mortgage was never inscribed and re-inscribed except in the parish of Ouachita.

• Art. 3369 O. O. declares: “ The registry preserves the evidence of mortgages and privileges during ten years, reckoning from the day of its date; its effect ceases, even against the contracting parties, if the inscriptions have not been renewed before the expiration of this time, in the manner in which they were first made.”

The failure to inscribe did not divest the mortgagee of his rights as against the mortgagor; but the mortgage, though thus in existence between the contracting parties, did not bind third persons. The mortgage between the parties to the act continued in force without inscription for ten years, the debt secured by it being kept alive ; but at the end of that time it prescribed ; no inscription having been made within .that period of course no re-inscription could be made. The mortgagee, on the expiration of the delay without an inscription, cannot claim to be better situated than if he had inscribed. Had he inscribed and failed to re-inscribe within the ten years, the inscription would have perempted and ceased to produce any effect against the contracting parties. It is, therefore, clear that by not inscribing and subsequently re-inscribing ’ the mortgage within the ten years the mortgagee cannot, after the expiration of that term, claiin any mortgage even as against the mortgagor or his estate.

It was held, in the case of Sorrells and Husband vs. Stamper, 27 An., 630, that, after a mortgage has once perempted, it cannot be revived against a succession by the registry thereof after the lapse of ten years. No preference over ordinary creditors can be gained in that way.” See, also, C. C. 2264, 3329, 3346, 3347; 14 An., 838; 21 An., 426; 27 An., 552.

If such is the consequence of a failure to re-inscribe a mortgage within ten years, as relates to the property of a succession, the same result must follow the omission, in this case, bo inscribe the mortgage in the parish where the property is situated. The appointment of an administrator to a succession presupposes the existence of debts against the succession; and the administrator, while representing the deceased, represents also the creditors. The succession in this case is administered by an administrator who, in his representative capacity, is defendant in the suit, and we are bound to presume, therefore, that there are creditors whom he represents to be affected by this mortgage; but they, as third persons to this mortgage, can only be affected in so far as the act has been inscribed and re-inscribed in the place and manner and within the time prescribed by law. Under these circumstances the mortgage must be confined in its operation to the lands situated in the parish of Ouachita.

The petition sets forth, and the evidence shows, that the note sued on is one of a series of notes, eight in number, of like amount, date and tenor, secured by the same mortgage, and it is asked that the note in suit “ be paid out of the proceeds of the mortgaged property according to its pro rata share, and in concurrence with the other mortgage notes.”

The judgment of the lower court was in favor of the succession, sustaining the plea of prescription, and it must be reversed.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed ; and proceeding to render such judgment as the lower court should have rendered, it is ordered, adjudged and decreed that the plaintiff recover of the succession of Charles H. Morrison, deceased, the sum of five thousand dollars with eight per cent, interest per annum thereon from the 5th of February, 1868, till paid, together with five per cent, thereon for attorney’s fees ; and that for said sum and interest a special mortgage be and the same is recognized, to take effect from’the 15th of June, 1867, on, the following described lands, situated in the parish of Ouachita, to wit:

The W. J of the E. £ of Sec., and the W. ^ of Sec. 28, sections 29 and 30, and N. J of Sec. 31, and N. E. J of Sec. 32, T. 17 north, range 4 east; lots 1 and 2 and N. E. J of N. E. J Sec. 36, T. 17 N., R. 3 east, containing in aggregate 2319t¥¡t aeres, more or less, being known as the Charleston plantation, situated on the east bank of the Ouachita river, six miles below Monroe, mules, horses, stock and agricultural implements and all other appurtenances. Also, N. W. 4 of N. W. 4 Sec. 19 ; S. W. 4 of S. W. 4 and N. E. 4 of S. W. 4 Sec. 18, T. 18 north, B. 1 east, containing 119xr>(r acres, more or less. S. W. 4 of S. W. 4 See. 27 and lot 7 Sec. 22, T. 19 N., B. 4 east, containing 52:fijV acres. E. J of S. E. 4 Sec. 31; S. E. 4 of N. E. 4 Sec. 18, T. 17 N., B. 2 east, containing 129Í& acres, more or less. Also, certain lot of ground or square in town of Monroe, bounded in front by Walnut street, on the upper side by Washington street, on back by Second street, and on lower side by Jefferson street, being square No. 2 on the plat of town of Monroe, together with the buildings and improvements thereunto belonging, as set forth and described in the act of mortgage referred to, passed June 1,1867.

And that said sum and interest, herein adjudged, be paid out of the proceeds of said property, according to its pro rata share, in concurrence with seven other notes of the same series, for $5000 each, dated June 1st, 1867, drawn payable to the order of Given, Watt & Co., and identified by the paraph of Andrew Hero, notary public, with an act of mortgage passed before the said notary, in the City of New Orleans, on the said 1st of June, 1867. In all other respects the claim of the plaintiff is rejected; the costs of both courts to be paid by the defendant and appellee.


text:
    No. 1029.
    The State of Louisiana ex rel. The Merchants’ Mutual Insurance Company of New Orleans vs. O. Mayo and W. W. Farmer, Judges of the Court of Appeals for the Second Circuit.
    The amount in dispute being more than $200 and less than §1000, the Court of Appeals is commanded by Mandamus to entertain jurisdiction and try the case. Same reasons as in Winter & Hunter vs. the Judges of the Court of Appeals of the Second Circuit, decided at same term.
    ApPLICATION for writ of Mandamus.

      Franklin Garrett for the Belator.

      The Judges of the Court of Appeals for the Second Circuit, Bespondents.
   The opinion of the Court was delivered by

Poché, J.

This is an application for a mandamus under our supervisory control to compel the Court of Appeals to re-instate on its docket for trial on appeal, a case entitled J. W. Smith vs. The Merchants’ Mutual Insurance Company of New Orleans, which appeal had been dismissed by said tribunal ex proprio motu, “ on the ground that the amount involved in the case exceeded the jurisdiction of that court.”

Relator shows that upon the dismissal of his appeal by the Circuit Court, he took an appeal returnable to this Court, where, on motion of appellee, it was dismissed for want of jurisdiction ratione materice, on the ground that the amount in dispute was not sufficient to vest jurisdiction in this Court.

It appears from our decision rendered on the motion referred to that relator’s appeal had been taken from a judgment of the District Court, perpetuating an injunction staying execution of a judgment for $703, exclusive of interest, in which we held that the demand for damages, apparently fictitious, could not be cumulated with the amount of the judgment under execution, as an element under which our jurisdiction cQuld be tested.

The record, therefore, shows that the amount in dispute in the cause exceeds two hundred dollars, and' does not exceed one thousand dollars, and thus clearly points to the Court of Appeals as the proper and the only tribunal entitled to jurisdiction over the case.

The grounds of- complaint,' 'the answer of the defendants, and the jssue presented in this proceeding, are substantially the same as those found in the application for a mandamus in the ease of the State ex rel. Winter and Hunter vs. Judges of the Court of Appeals of the Second Circuit, recently decided by this Court, and for the reasons given in that ease, the relator in this case is entitled to the relief which he prays for.

It is, therefore, ordered, adjudged and decreed that the alternative writ issued herein be made peremptory, and that the Court of Appeals do re-instate on their docket for trial on appeal, the cause entitled J. W. Smith vs. The Merchants’ Mutual Insurance Company of New Orleans.


author: Bermudez, C. J.

text:
    No. 1010.
    J. W. Smith vs. The Merchants’ Mutual Insurance Company.
    On Motion to Dismiss.
    The test of the jurisdiction of this Court in an action to enjoin and annul a judgment, is the amount of the judgment itself.
    Appellee cannot be estopped from denying the appealab le character of a suit, because consent cannot vest this Court with jurisdiction.
    The appealable amount of the matter in dispute neoessary for the jurisdiction of this Court cannot be reckoned by the cumulation of plaintiff's demand and defendant’s claim in re-convention.
    APPEAL from the Fifth District Court, parish of Ouachita. Richardson., J.

      Franklin Garrett for Appellant:
    Plaintiff’s demand is that he be decreed to have paid a judgment for $703 principal, for $3CQ vindictive damages, and $200 damages for legal expenses.
    The test of jurisdiction is-what plaintiff demands and defendant denies — this gives the matter in. dispute.
    Suppose the District Judge had given plaintiff judgment for $300 vindictive damages, would the Circuit Court have jurisdiction of defendant’s appeal ? Could that Court revise a judgment for 1003 ?
    Could the Circuit Court amend the judgment rendered, by giving plaintiff $300 ? or, the whole §500 claimed in his petition?
    The Supreme Court alone could review a judgment for $1003 or §1203 — or amend the judgment for $703 by increasing with the damages prayed for. «

      Frank P. Stubbs for Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff asks the dismissal of the appeal for want of jurisdiction.

The plaintiff has enjoined the execution of a judgment for $703 with interest and costs against him, on the ground of extinction, by compromise with defendant’s transferrer, previous to the transfer. He claimed three hundred dollars damages for trespass on his property, and two hundred dollars for costs and legal expenses in the assertion and defense of his claim, in this proceeding. The defendant asked a dissolution of the injunction, praying for statutory damages. The injunction was perpetuated, but without damages.

The matter in dispute is the existence or extinction of the judgment enjoined.

It is settled that, in actions to enjoin and annul judgments between the parties thereto, the jurisdiction of this Court is to be tested by the amount of the judgment, and, as a corollary, that damages, claimed in such cases, are not always an element to determine that jurisdiction. 30 An. 425; 12 An. 784; 14 An. 73; Schmidt & Ziegler vs. Brown, Lemle vs. Routon, 33 An., p. _.

A case may perhaps be presented, in which — to a claim to, or against a judgment for, less than $1000 — a demand for proportioned, connected and reasonable damages may be superadded; but when such a claim arises, and damages, on their face improbable, are asked, jurisdiction will not attach.

It is true that, in the present instance, the damages claimed were asserted before the adoption of the Constitution in force, in a case which was then clearly appealable. Although it cannot, therefore, be pretended that they were then demanded to give this Court jurisdiction, it is manifest that they are now insisted upon, as set up in good faith, for the same purpose.

It cannot be claimed that the plaintiff is estopped from denying the appealable character of his suit, because consent cannot give jurisdiction to a court which has none ratlone materice. Neither can it be claimed that the case is appealable on defendant’s reconventional demand, for the reason that, in reality, it is for no more than the statutory damages* which do not amount to one-fourth of the sum necessary to give us jurisdiction. A plaintiff 'in reeonvention cannot by incorporating into his demand the matter in dispute in the main action, and by adding thereto a claim in damages, give jurisdiction to this Court, over his suit. - The two claims are distinct; they are sometimes connected, or contradictory; but each stands on its own merits. Just as the plaintiff cannot cumulate with his demand that set up by the defendant, so is the latter precluded from adding to his claim that of plaintiff.

In the absence of any specification in the petition of the circumstances from which the damages spring, we are at a loss to conceive how the execution of a judgment for $708 can have occasioned and is likely to inflict injury to the extent of $500.

The judgment which the lower court might have awarded in favor of plaintiff, can no more be urged, as a test of our jurisdiction, than could an adverse judgment. If the judgment, the existence of which is assailed, has not been satisfied, the foundation upon which the superstructure rests gives way and the accessory follows the principal.

We think that plaintiff’s demand in damages is mostly fictitious, and that it cannot be relied upon to give this Court jurisdiction.

It is, therefore, ordered that this appeal be dismissed at the cost of appellant.