author: BERarroEZ, C. J.

text:
    No. 9053.
    Jules Lapène vs. Télémaque Badeaux.
    Although the contract of sale be perfect, when entered into by competent parties the moment that the thing and the price are agreed upon, and although the purchaser may be considered as the owner of the property, snch vendee is not entitled to demand and obtain possession, and in default to claim rents and revenues, where the price payable cash has not been paid, but was retained without justification.
    Payment of the price is an essential condition, precedent for demand of delivery or possession.
    Purchasers of real estate at succession sales who assume to withhold payment on the pre-tence of paying an anterior mortgage creditor and applying the residue to their own next ranking claim, do so at tlier risk and peril.
    Where it is subsequently judicially ascertained and decreed that such purchasers havere-tained more than they should have done and illegally withheld payment, and that such purchasers have to pay and they do actually pay, it is only from the time of such payment that they are entitled to demand and receive delivery and possession of the property to them previously adjudicated.
    Purchasers or adjudícateos thus in default cannot stand in court to recover for the fruits and revenues of the property prior to the date of payment. They cannot both keep the money and enjoy the property.
    Au action by them for rents and revenues does not lie against one in possession and who is not the vendor, where it was by agreement with such party that the suit was brought, and where thfc title or sheriff’s deed was recorded after the peiiod for which compensation is sought.

      The unqualified taking possession of suoli property claimed to have keen dilapidated, is a bar to an action in damages. #
    APPEAL from the Twentieth District Court for the Parish of La-fourche. Knobloch, J.

      John Ray for Plaintiff and Appellant.
    1.When property is sold at auction, the highest bidder is declared to be the purchaser, and the thing sold is adjudicated to him. R. L\ C. 2607. This adjudication is the completion of the sale. The contract from that timéis governed by the same rules which govern the ordinary contract of sale It. O. C. 2608, 2456.
    2.A purchaser at a judicial sale of the property of an insolvent has the right to retain in his hands, as part of liis bid', the amount of special mortgage existing on the property before the insolvent became the owner of it. and which are not cancelled by the judicial sale. Succession of Triclie. 29 A. 384. The balance of his bid he has a right to appro- • priate to the payment of the next oldest special mortgage on the property, upon giving security to pay any amount that may be found due by the insolvent estate having a reference over such mortgage, on final settlement of the estate. Succession of Tricbe. 29 A. on p, 387; Goodlove vs. His Creditors. 8 La. 302: Succession of JToulkes, 11 A. 593 3 A purchaser at judicial sale acquires such a vested right in the property, by tbe adjudication, that it cannot be taken from him unless he refuses to comply with the terms of sale. When that refusal is recognized by a judgment ordering the property to bo sold at the risk of purchaser, it is a complete divestiture of any right under the first adjudication. Washburn vs, Green. 13 A. 332: "Doll vs. ICatlnnan, 23 A. 486.
    Inasmuch as Lapéne was never in default in the payment of his hid, the titles to the property acquired by bis bid on tbe fourth of September, 1875, vested in him from tbe date of tbe bid: the hid and the subsequent payment of the price is all one continuous transaction.
    4. Plaintiff is not bound to show a perfect title in order to recover against a mere trespasser u itkout title. Patin vs. Blaize, 19 La. 396: Bonis vs. James, 7 Bob., on pp. 153, 154: Stevenson vs. Goff. 10 Bob., on p. 103: Cumin gs vs. Back,12A. 748: Hebert vs. Lege, 29 A. 511. Defendant in this case was a mere trespasser on tbe premises.

      Moore & Badeaux for Defendant and Appellee.
    1. The bare agreement for the object and the price is the perfection of a contract of sale in the sense that it forms only the engagement of the contractors to perform reciprocally what they promised to one another. Tims, the seller is hound to deliver the thing sold and the buyer to pay the price, and it is in this sense alone that the contract of sale is perfected by the bare consent. Domat Civil Law, note to sec. 275.
    •2. It is true that Article 2608 declares that the adjudication is the completion of the sale. But it was never tlie intention of the law-giver to say that the sale should he complete when the purchaser had refused to comply with the terms of the sale on demand. 13 A. 332 ; 23 A. 486 : 24 A. 370 : 16 A. 142.
    3.Until a bidder complies with the terms of his contract and Is sent into possession of the property purchased he is not considered the owner and can maintain no suit for the rents and revenues of the property. 93 U. S. (3 Otto) 424.
    4.Though the law may deny tbe right to a ‘.‘mere trespasser” to question the title of his pursuer, the right to do so may, however, be accorded to the “trespasser” by tbe party claiming title. The question of title in this suit is put at issue by tbe express written consent of plaintiff, which see at Record, p. 14 et seq.

   The opinion of the Court was delivered by

BERarroEZ, C. J.

This is an action for the recovery of a large amount, as the value of the occupancy and enjoyment of certain real property and as damages for injury done thereto.

By consent, a preliminary defense was set up for the purpose of having it determined whether the plaintiff/or the succession from which he claims title, had a right to sue, as is done.

From a judgment denying him a right of action the plaintiff appeals.

The facts are simply the following:

On the 4th of September, 1875, the plaintiff became the adjudicatee of certain real estate at the probate sale made of property belonging to the succession of Drauzin Triche, for $8230, payable cash.

Instead of complying with the terms of the adjudication, plaintiff declined to do so, insisting that he had a right to withhold the whole amount to meet a first conventional mortgage and a second similar one in favor of a firm of which he was a member and represented, and which would absorb the residue.

Considerable litigation ensued, which terminated by the recognition of a number of mortgage claims anterior to that of plaintiff, and by a judgment ordering him to pay the same, amounting to $8060, out of the price of adjudication, within a stated delay, and in default of such payment directing the sale of the property adjudicated at his folie, enehere. It was not until the 27th of March, 1883, that this sum was paid. Whereupon, Lapene was sent into possession of the property. The sheriff’s deed was recorded in the proper conveyance book on the 30th, three days after.

This suit was instituted on September 17, 1883.

It is based upon the theory that the plaintiff became the absolute owner of the property adjudicated to him on the 4th of September, 1875, some eight years previous; that as such he is entitled to the fruits and revenues thereof.

Article 2456, R. C. C., declares:

“ That the sale is considered perfect between the parties and the property is of right acquired to the purchaser, with regard to the seller, as soon as there exists an agreement for the object and the price, though the thing be not delivered nor the price paid.”

The subsequent article, 2608, on the subject of sales at auction, or public sales, provides:

“That the adjudication,is the completion of the sale; that the purchaser becomes the owner of the thing adjudicated and the contract is from that time subjected to the same rules which governs the ordinary contract of sale.” Vide also C. P. 690.

The following article, 2609, declares:

“That if the adjudication be made on condition that the price shall be paid in cash, the auctioneer may require the price immediately before delivering possession of the thing sold.”

The Code of Practice, in relation to judicial sales, is to the effect that if the adjudicatee refuses to pay the price of adjudication to the sheriff, the latter shall expose the thing to sale anew and adjudge it to another person.

Succession sales are declared to he judicial sales by Article 2622, R. C. C.

It is apparent, from the spirit and letter of those different texts of law, that it is the con tract which is perfected by the agreement of competent parties as to the thing and price; but that title to the property is really transferred from vendor to vendee only when the terms of sale have been complied with. The failure to pay, when unjustified, is equivalent to a refusal. An adjudicatee or purchaser, in legal contemplation,, is in default as well by an unfounded failure as by an unwarranted refusal.

The contract of sale does not make the buyer master and possessor, and does not give him a right to enjoy, to use and to dispose of the thing sold, but only a right to demand the delivery of. it. This delivery of the thing, together with the payment of the price, consummates the sale and awakes the buyer fully master and possessor of the thing, which was the end of the eoaitract of sale. R. C. C. 2487; Domat, note to art. x, sec. 11; Tit. 11, Book I, part 1, sec. 275; Marcado, vol. 6, p. 142, on Art. C. N. 1583.

Tt is only when the purchaser is entitled to demand and obtain delivery, where it is not given to him, that he can be considered as the absolute owner and entitled to enjoyment as such.

The purchaser has a right, to receive possession only after he has performed all his part- of the contract, as by paying the price or settling for the same, as may have been agreed upon between him and the vendor.

Article 2487, R. C. C., is explicit on the subject. It reads: The seller is not bound to make a delivery of the thing if the buyer does not pay the price.”

The French law, from which ours derives, is textually the same. C. N. 1612:

“ Il ne sufferait pas, says Troplong, que l’acheteur offrit une portion du prix, il doit l’offfir en entier, sans quoi, le. vendeur serait auto-rise á garden la chose pour le total. La raison en est, que la chose vendue et non livrée, sert de gage entre les mains du vendeur pour le paiement du prix' et que la cause du gage n’étant pas divisible, il faut, pour se libérer, que le débiteur paie jusqu’au dernier franc, acl mmvmmn unum chmtaxat.

There exists similar provision in the Spanish law, which, like the French, once prevailed here:

“El apoderamiento no pasarte el señorío de let eosa a el fasta epee el precio pagaseThe property in the thing sold will not pass to the buyer until he has paid the price thereof. Partida. Ill, tit. xxviii, law 46.

The theory has its foundation in the Roman law:

“Offerri pretiumff says Ulpian, “renclitori ab emptore debet quum ex empto agitnr et ideo etsi pretil partem' offerat, nniulum est ex empto actio Venditor eivim quasi pignus retiñere potest earn rem quam vendidiV L. 13, § 8; Dig. de act, empt. cujos recit. solen sur la loi, 13, § 8, dig.

The principle finally consecrated by our law has been applied by the Courts. 13 A. 332 ; 23 A. 486; 18 A. 31; 24 A. 370; 16 A. 142; 7 R. 406; 93 U. S. 424.

It, therefore, follows that, although the property was adjudicated to the plaintiff on the 4th of September, 1875, it was not until the price had been paid, viz: the 27th of March, 1883, as to the succession of Triche, and the deed had been recorded, viz: the 30th following, as to third persons, that he became entitled to receive possession as absolute owner of the adjudicated property.

During the whole of the intervening time, eight years, the plaintiff has remained in the enjoyment of the purchase price. How can he consistently claim to be entitled besides to the rents and revenues, or value of the occupancy of the property, which by Ms own act has continued in the actual care and custody of Ms vendor?

It is manifest that, as the succession of Triche was not bound to deliver to the plaintiff the property before payment of the price by him, so the plaintiff had no right to demand delivery and possession before he had paid the price. The irresistible consequence is, therefore, that as he was not entitled to possession, he has no right to claim rents and revenues for the time during which he withheld the price without right.

When the case was before us in 1883, while reviewing the finding of the lower court, we cautiously said:

“The judgment is, however, erroneous in so far as it assumes to order that the title and possession of Lap&ne shall date and take effect as of the date of sale, viz: September 4, 1875. We express no opinion as to what will be the effect of Lapene’s title.”

The judgment was accordingly, in part, reversed.

What we properly abstained there from saying, we have now formally expressed.

It is an important and significant feature in this case that the sale at which plaintiff became adjudicatee was not one made in execution of a writ issued on a money judgment and calling for a specific amount, but was a probate, a succession sale, to complete which the administrator had authority, as the legal agent of all the creditors, to receive the whole price and to grant full discharge, and acquittance to the purchaser accordingly.

In relation to the proposition that the plaintiff is not bound to show a perfect title in order to recover against a mere trespasser without title, it suffices to observe that it is by the express consent of the plaintiff that the defendant was recognized the right, or permitted to question plaintiff’s right of action; that the possession of the defendant does not appear to have been that of a trespasser; and that it is not until the 30th of March, 1883, that the adjudication to the plaintiff and compliance with the -condition of sale by him was made to appear on the public records. R. C. C. 2456, 2265, 2266.

Touching the right of action of the plaintiff for damages done to the property, it is enough to remark that there is neither allegation nor proof that he reserved his right when he took possession. In the absence of such reservation of right, the fact of taking possession unqual-ifiedly must be construed as a waiver or abandonment of claim for such damages.

Judgment affirmed.


source: Caselaw Access Project

author: Manning, J.

license: Public Domain

text:
    No. 9081.
    John D. Walsh vs. L. F. Carrene.
    Where tlie sum demanded is above the appealable amount, the fact that an intervention is for less than that amount, will not make the case less appealable, where the plaintiff’s claim is rejected and he appeals.
    A simulated sale and mortgage of lands can be attacked by creditors of the apparent vendor when proceedings are taken to foreclose the mortgage.
    APPEAL from the Nineteenth District Court, Parish of Terre-bonne. Goode, J.

      Tobias Gibson for Plaintiff and Appellant.

      L. F. Suthon for the Intervenors.
   ON Motion to Dismiss.

The opinion of the Court was delivered by

Manning, J.

Walsh instituted this suit upon a series of notes aggregating eleven hundred and eighteen dollars, secured by mortgage and vendor’s lien upon certain real estate, and praying' for a judgment, recognition of mortgage, and sale of the property.

Plash, Preston & Co. intervened as judgment creditors of Carrene for $260 88, alleging that Walsh had no real claim against Carrene, but the notes and mortgage were a simulation and device to shield this property from the pursuit of creditors. The intervenor had judgment, and the plaintiff appealed.

The motion to dismiss is on the ground that “when the matter in dispute is the right to subject property worth more than the appealable sum to a judgment for less than that sum, the Supreme Court is without jurisdiction.”

The matter in dispute is the right of the plaintiff to have a judgment for more than the appealable sum, and to execute it upon mortgage property of greater value than that sum.

Motion refused.

ON THE MERITS.

The intervenors’ judgment was not only against Carrene, but John Poley as well, and was rendered in March, J883. There had been a simulated sale from Carrene to Poley of a stock of goods the previous year, and this judgment of the intervenors had uncovered that transaction, and both were condemned solidarity to pay the Carrene debt. Poley in Ms turn had made a sale of lands and town lots to Carrene about the same time, and had put Carrene’s notes in the possession of Walsh, who was the husband of Poley’s niece, and who swears that he liad them from one Douglas, a day laborer and brother of his wife. This suit is upon those notes. All the family swore lustily as to the verity of the transaction, but the lower judge did not believe them, nor do we. The whole affair was botched, and the intention of the parties to screen this property from creditors is transparent. Simulation is sometimes difficult of detection, but dunderheads are sure to furnish the means for unveiling their awkwardly concocted schemes.

Judgment affirmed.


author: Bermudez, U. J.

text:
    No. 9058.
    The State ex rel. Joseph Menge vs. N. H. Rightor, Judge Civil District Court, etc.
    A mandamus does not lie to compel a district judge to rescind an order made "by Mm dismissing an appeal “because the surety is not good and solvent, as the law requires, although such surety may he such as meets legal exigencies, and to reinstate the dismissed appeal although the judge may have errecl. Such action on his part cannot be reviewed in a proceeding for a mandamux, and can be considered only in a different proceeding specially provided and sanctioned for such cases.
    ^ JPPLIOATIOX for Mandamus.

      Brauglm, Buck & Dinkelspiel and W. 0. Hart for the Relator.

      Jas. Wilkinson and Jos. II. Bpearmg for the Respondent.
   The. opinion of the Court was delivered by

Bermudez, U. J.

This is an application for a mamdmius. The relator complains that the district judge has dismissed a suspensive appeal taken by him from a judgment against him, the ruling being made on the ground that the surety furnished is not good and solvent, as the law requires, when in truth and in fact such surety meets all legal exigencies.

The prayer is that a mandamus issue directing the judge to rescind his order of dismissal and to reinstate the suspensive appeal.

It has been repeatedly held that a mandamus does not lie to compel a lower .judge to render' a particular decision or rule in a specified manner.

If the district judge erred as charged, his error cannot be revived in the present proceeding. Tlie relator has mistaken his remedy. He should have formally resorted to another proceeding specially sanctioned for such cases. 21 A. 44, 113, 154.

The relator has prayed for both a mandamus and a prohibition, but has not made the slightest allegation to justify the issuing of the last writ. The averments tend to the granting of a mandamvus. Those required to authorize a prohibition would bo essentially different and contradictory. Iiow can this Court, in the same breath, order a judge to proceed and to abstain from proceeding in relation to the same matter — to do and not to do f

It is, therefore, ordered that the restraining order herein made be rescinded and that this application be dismissed, without prejudice to the right of relator of seeking relief under a different form.


author: MANNING, J.

text:
    No. 9075.
    Jas. S. Miller vs. Gidiere & Marmande.
    Tlie demand is for eleven hundred dollars. The answer admits that three hundred and fifty six dollars and sixty-six cents had been owing, but avers it had already been paid, and denies owing any more. Motion to dismiss refused, because the pleadings show a claim for more than the appoalahle sum, and a denial of any indebtedness whatever. Distinction drawn between this and Dcnégre vs. Moran. 35 A. 346.
    A contract for an overseer’s wages thus: — I agree to your conditions, viz: $100 a mouth, which will be eleven hundred dollars for this year, one month having already elapsed— construed to be a contract for the term and not by the month.
    A discharge for good cause disentitles the party discharged to wages for a longer time than he served.
    Gross inattention to and non-performance of duties, or conduct such as to endanger the control of the hands and drive them away, and thus entail irremediable loss, conjoined witli sickness, which incapacitates him for service, will justify the discharge of an overseer.
    An overseer’s wages cannot he docked for sickness unless the same he stipulated expressly. Protracted sickness may be sufficient cause for discharging him, hut so long as he remains in employment, he is entitled to his wages.
    A PPEAL from the Nineteenth District Court, Parish of Terrebonne. IT Goode, J.

      L. F. Buthon for Plaintiff and Appellee.

      J. B. Winder for Defendants and Appellants.
   The opinion of the Court was delivered by

MANNING, J.

The plaintiff claims eleven hundred dollars as overseer’s wages. The defendants admit that he had earned $356 66, hut aver they have paid that sum, and deny owing any more.

The plaintiff was examined as a witness on the trial, and admitted the payment alleged and declared it was a proper credit upon his demand. The judgment was for 'the difference, $743 34, and the defendant appealed.

The plaintiff moves to dismiss.

There is a distinction between this case and Denégre vs. Moran, 35 A. 346, which at first glance seems too finely drawn, hut it exists nevertheless. In that case the plaintiff’s claim was eleven hundred dollars, and the defendant admitted that he owed $173. The amount in dispute therefore could not exceed $927, and we dismissed the appeal.

In this case the plaintiff’s claim is also eleven hundred dollars, and he admits that $356 66 was once due, but avers that he has paid it, and now owes nothing.

Tested by the pleadings, we have jurisdiction. It is true the evidence exhibits an admitted payment which reduces the amount really due below the appealable sum, but we have to look beyond the face of the pleadings to find out that. The answer, unlike that of Moran, does not admit that he owes a specified sum, but alleges that he has paid all that he ever owed, and non constat that he will prove that. So that in the pleadings we have a demand by one of an amount of which we have jurisdiction, and a denial by the other that he owes any part of it. We must maintain the appeal. Connors vs. Citizens’ Co., 22 A. 330.

The motion is refused.

'On the Merits.

The employment was in February, 1883, for the remainder of that year — the plaintiff insisting that it was for the term, eleven months at the rate of $100 a month — the defendants contending that it was by the month. We are satisfied that it was the former. The letter of Mar-mande, the resident managing partner, to Miller, informed him that G-idiere had written him to employ him as overseer, and adds: — “ I agreed with your conditions which were $100 a month, what will be for you eleven hundred dollars this year, a month having elapsed since the 1st of January.” Overseers are not usually employed from month to month, or by the month. Our agriculture requires them through the year. It is manifest these parties contemplated such service. The defendants’ pleadings impliedly admit ]that the tender of the letter does not justify the construction of it. The answer is an argument rather than a plea, and informs us that Marmande does not understand English very well, and therefore had the letter -written by another Frenchman, whom it likewise accuses of unfamiliarity with that tongue —a queer reason for selecting a scribe in such juncture. Miller construed it as an employment for the remainder of the year, and so do we.

But the discharge was for good cause. Of course the testimony is conflicting, but the preponderance is decidedly against the plaintiff. He had the hands in a muss almost from the outset — the cause, mis-keeping their time, which Marmande had often to rectify — and the evidence is that this time-keeping is a very important part of the modern overseer’s duties. The plantation was near losing its hands. It is a sugar place, and every one knows what that portends — instant loss which may prove irremediable.

Miller had the misfortune to be sick a great deal. He was on duty onlj’ two days in March and sixteen in February. Perhaps this of itself was not sufficient cause for discharge, .as it does not appear to have interfered seriously with his work afterwards — was not protracted as in Jeter vs. Penn, 28 A. 230. But taken along with the other matter, we cannot say that a planter must keep and pay a,n overseer who for a considerable time is disabled from attending to his duties, and when not disabled so performs them that the plantation is in an uproar, and planting in danger of stoppage.

The plaintiff had earned $500 for the five months he served, the discharge being on July 1st. The defendants made a very nice calculation of the time lie missed, from sickness, and they docked him accordingly. Their account against him for money paid, and merchandise, etc., furnished him, amounted to $356 66, which lie, as a witness, admitted was correct, and they so figured his lost time as to make it exactly fit the difference between that sum and $500.

It is as unusual to dock an overseer for lost time from sickness as it is to employ him for a month only. There was no stipulation to that effect. Sickness may be, and has been held to be, sufficient cause for discharge, but until the overseer is discharged, his wages continue unless the contrary is stipulated. He should have judgment for the residue of his wages.

It is therefore ordered and decreed that the verdict of the jury is set aside, and the judgment of the lower court is amended by inserting therein the sum of one hundred and forty-three dollars and thirty-four cents in the stead and place of the sum therein recited, and as thus amended that it is affirmed, the plaintiff paying the costs of appeal.


author: Bermudez, C. J.

text:
    No. 9034.
    The State of Louisiana vs. Walter Jones.
    It is undoubtedly correct, as a rule, that an erroneous instruction or charge to the jury caD not be corrected simply by another instruction or charge -which states the law accurately; hut the rule does not obtain where the erroneous instruction is expressly admitted to be such and is formally withdrawn from the jury by the trial judge, who, in doing so, gives the law correctly, as should have been done at first.
    4PPEAL from the Sixth District Court, Parish of Morehouse. _ Brigham, J.

      J. O. Egan, Attorney General, for the State, Appellee.

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

Bermudez, C. J.

The defendant appeals from a sentence of ten years at hard labor on a conviction for shooting with intent to kill.

The record contains a bill of exceptions and a motion in arrest. The bill is taken to the following charge of the judge to the jury:

“I will not give you this section (794, E. S.) in charge, as it appears that this man’s eye was shot out (referring to the party accused, charged with shooting) and this section is not applicable.”

The following explanation forms a part of the hill:

“After giving further charges to the jury, and when charging the jury as to the different verdicts they might render, the court remarked that, on reflection, it was right and proper to give that article (794) in charge, as the jury might find that if the party was shot that they might or might not find that the wound inflicted was mayhem, or less than mayhem, and gave the charge as to the law in such cases. After the. jury had left the jury-box and were proceeding to the jury-room, the counsel for the accused excepted to the remark of the court substantially stated in the bill.
“At this point the court ordered the jury to return to the jury-box, which they did before they had gotten to the jurj^-room, and thereupon the court charged the jury that, if in charging in regard to section 794, oi' at any other time, the court had remarked that the eye of the party shot was put out, that it was improper and inadvertently done, and should not and must not influence them in the trial of the case; and the. court retracted all' that might have been thus inadvertently said, and specially charged that they were the sole judges of the evidence on that point, as of all other evidence in the case, and the judge was pre-cludedfrom reciting any part of the evidence in the case and did not intend to recite any fact as proved. That they heard all the evidence on that subject from the party shot, as to the loss of Ms eyesight, and saw the wounded man and the condition of his eye for themselves, when he testified.”

It is undoubtedly true, as a rule, that an erroneous instruction cannot be corrected simply by another instruction which states the law accurately, but the rule does not obtain where the erroneous instruction is expressly admitted to be such and is formally withdrawn from the jury by the trial judge. Waterman Cr. Dig. pp. 379, 624.

hi the present instance the judge took pains explicitly to inform the jury that the remark complained of had trenched on the facts and was an improper one, inadvertently made, and that it should have no weight with them.

In presence of such full and complete, candid and laudable retraction by the judge, and of his subsequent fair and liberal charge to the jury touching their control over the. facts and the law, as above reproduced, it is impossible to conjecture with any plausibility how the jury can be said to have been injuriously influenced and the accused seriously prejudiced.

The motion in arrest has no merit. It is substantially identical with a similar-one made by the same counsel in the case of the State vs. Chandler. For the reasons there assigned, it was properly denied.

Judgment affirmed.


author: Mannxng, J.

text:
    No. 9045.
    The State of Louisiana vs. Joe McGee.
    A. juror who, upon his voir dire, said lie liad formed a fixed deliberate opinion, but on further interrogation admitted that he should bo guided solely by the testimony on the tiial and the law as applied thereto, and who had not talked with auy of the witnesses, and had no bias or prejudice, is a good juror.
    The fact that one of the grand jurors who found the bill is an unnaturalized alien, cannot be taken advantage of in a motion for arrest. This personal disqualification of a grand juror may be pleaded in abatement, and whatever is pleadable in abatement is waived by a plea in bar.
    >ÑT on-residence of a petit juror in the parish where the trial is had for twelve months immediately preceding the trial cannot be the subject of amotion in arrest.
    A judge can and ought to interpose when a useless and irrelevant examination of a witness is going on, and prevent the waste of time and distraction of the attention of the jury.
    Confessions made voluntarily, and without the exercise of any influence, to extract them, are admissible. State vs. Parks, 2) A. 251. overruled.
    PPEAL from the Tenth Logani, J. District Court, Parish of Red River.

      J. G. Egan, Attorney General, for the State, Appellee.

      J. .H. Pierson for Defendant and Appellant.
   The opinion of the Court was delivered T>y

Mannxng, J.

The defendant was convicted of murder and was sentenced to he hanged.

1. Sol. Bell and J. J. Patton were challenged for cause as jurors, the. objection being that they had formed fixed and deliberate opinions of the guilt of the. accused. The challenge having been disallowed, the prisoner excepted.

Bell having stated on his vow dire that he had formed a fixed deliberate opinion, and that it would take strong evidence to remove it, was thus interrogated by the judge:

Q. Do you mean that your opinion is so fixed and deliberate that your mind would liot yield to the la.w and the evidence 1
A. No ; my opinion would yield to the, law and the evidence.
Q. Have you any prejudice or bias in favor of or against the accused, or have you talked to any of the witnesses ?
A. No; I have no bias or prejudice, nor have T talked to any of the witnesses. T have heard only rumors.
Q. Can you and will you do justice to the State and to the accused; if selected as a juror ?
A. Yes; I can and will do justice to the State and the accused.

Patton, having made the same declaration touching a fixed and deliberate opinion, was interrogated in like manner by the judge, and answered that his opinion was very strong, and it would take “pretty stiff” evidence tv change it — that he had learned nothing of the case except from rumors, and had not talked with any of the witnesses, and although it would take strong evidence, to remove his opinion, yet if selected as a juror he could and would render a verdict in accordance with the law and the evidence. And again ; “certainly, if sworn on the case as a juror, 1 would be guided entirely by the law and the evidence, and not by any opinion 1 may now have.”

The judge ruled rightly. If jurors, frankly avowing the formation of an opinion which they tnis-call “fixed,” can be rejected when they asseverate their ability and their willingness to disregard that opinion, and to be guided solely by the testimony upon the trial and the law as applied thereto, the difficulty usually attendant upon obtaining a jury when a startling crime has been committed will become an impossibility, and the worst mah-factors will go unwhipt of justice. If there is any expression in Kicks’ case, 82 A. 1098, countenancing the. doctrine that a deliberate opinion once formed is good cause for challenge, notwithstanding the proffered juror shall avpw himself free from bias and open to receive other impressions, it has been modified by the later cases of State vs. Desmouchel, 32 A. 1241, and State vs. Horusby, 33 A. 1110.

2. One of the grounds of the motion for a new trial is that Philip G-oldman, one of the grand jurors who found the bill, is not a citizen of this State and is an unnaturalized foreigner, and, therefore, was not a competent juror.

The question here is, whether that incompetency can avail the defendant when he defers action upon it until after conviction, and in a motion for a new trial. It has been held in State vs. Parks, 21 A. 251, that tire accused may raise the objection after verdict, but we think incorrectly. The ruling is opposed by both English and American authority.

A disqualification of a grand juror may be taken advantage of by an accused party by a motion to quash, or by a plea in abatement, but either must be made before he has pleaded to the indictment. The universal rule is that whenever and however it is permitted to the accused to avail himself of such disqualification, he is peremptorily shut off from it when he waits till conviction, and prefers it for the first time in a motion for arrest. Courts refuse to hear objections to persons composing the grand jury after the case lias been tried by the petit jury. Whatever is pleadable in abatement is waived by a plea in bar. 1 Bishop Crim. Law § 997.

Tt was questionable whether a defendant could take advantage of the incoinpetency of a grand juror at any time or in any way after bill found. In Massachusetts it was held that objections to the personal qualifications of a, grand juror cannot affect any indictments found by them after they have been received by the court laid filed, Com. vs. Smith, 9 Mass. 107, though this was doubted in a subsequent case but not overruled. Com. vs. Parker, 2 Pick. 563. In New York it is too late for the defendant to raise the objection of informality in the organization of the grand jury, after issue joined by a plea of not guilty, and a petit jury has been impanelled, and the State, has closed its case. People vs. Griffin, 2 Barbour, 427, and in Alabama the court held that the defendant could not except to the personal qualifications of grand jurors, nor plea in bar of an indictment that one of the jurors who preferred it was an alien, after the indictment had been found, accepted and filed. Boyington vs. State, 2 Porter 100. Though it was after-wards held that the defendant was not thus restricted, but might plead these matters inabatement. State vs. Middleton, 5 Porter 484. Mississippi holds the same doctrine as New York. Barney vs. State, 17 Smedes & Marsh. 68. In Maine, Tennessee and Texas, the disqualifications of a grand juror must be'taken advantage of P, a motion to quash or plea in abatement, and in North Carolina an objection to a grand juror comes too late after a plea to the felony. State vs. Martin, 2 Ired. 101, and that is the English rule.

Some of the American courts, it thus appears, relaxed the rule that the organization of the grand jury cannot be inquired into after the bill has been filed, but nowhere is the defendant permitted to wait until conviction and a motion for arrest, to urge the objection that one of the grand jurors who found the bill is an alien, or has other persona] disqualification. 1 Wharton Crim. Law, t 472.

3. In the same manner we dispose of another ground in the motion for arrest, i. e., that William Scott, a petit juror, was disqualified by want of residence in the parish where the, case was tried for twelve months preceding the trial.

The objection comes too late.

4. A bill was reserved to what is said to be. “an expression of opinion by the judge as to the force and effect of evidence,” made in this wise.

The defendant’s counsel was questioning a vytness what was said to him by the prisoner while in jail, when upon objection being made by the prosecuting officer that the prisoner could not make evidence for himself, the counsel stated that the object of the testimony was to prove insanity, whereupon the court ox>ened the door for the admission of everything that might tend in that direction, a complaisance that the district attorney seems not to have, objected to. The witness then and thus spoke:

“1 was at the jail soon after the preliminary trial, with John Ratcliff, Joseph Ratcliff and fifteen or twenty other persons. I said to the prisoner, £Joe, how are you?’ Joe replied,/T am pretty well, only! don’t get enough to eat.’ ‘Joe, it is mighty hard that you should suffer for what another man has done.’ And Joe replied, ‘Yes, it is.’ ‘Joe, did you make any confession since you have been in jail”?’ And Joe, the prisoner, replied, ‘ I have not.’ ”

A second witness had repeated this, and a third was about to follow in the same line, when the judge interposed, saying to the prisoner’s counsel, “1 think you are abusing' the rule. The witness can only testify as to the acts going to show insanity.” That is the expression of opinion on the force and effect of evidence which provoked the hill.

We scarcely knov jiow-to treat it seriously. The only wonder is that the judg/had not inte-nosed sooner, and put a stop to the balderdash more vigorously. He should not have permitted its introduction at all. It was calculated to distract the attention of the jury, had no relevancy or hearing upon the question of insanity, and the time of the court was wasted in listening to it.

5 and 6. These two hills are to the admission of the confessions of the prisoner. These confessions are his answer to a question of a deputy sheriff — “ why did you let the old cook-woman see you Í ” “ 1 did not think she saw me; ” and to a remark of the sheriff to him— “Mayfield has gone hack on you,” this Mayfield being a witness by whom the prisoner expected to prove an alibi, “your case looks gloomy.”

This is all the information the hills give us, and they are drawn at great length. It is needb *o say the matter is unimportant, but if a confession of guilt 'Limvw t, wMch the hills give no account of, it was made voluntarily, and without the exercise of any influence to extract it, and was admissible. State vs. Hartley, 34 A. 147.

Judgment affirmed.


author: BisRMUDEZ, C. J.

text:
    No. 9085.
    The State ex rel. Mollie Johnson vs. W. T. Houston, Judge of Civil District Court, etc.
    A mandamus lies to .compel tlie granting of a suspensive appeal from a judgment ordering the ejectment oí a person and property from premises which such person claims the ‘ right to occupy under a written lease, where the application for the appeal is seasonable and accompanied by a proper bond, and the execution of the judgment would inflict irreparable injury, exceeding one thousand dollars.
    The right of appeal is a constitutional one and cannot be abridged, whatever the effects may be which the enforcement of the same may occasion.
    Ejectment judgments are not among those enumerated by law, in which a suspensive appeal does not lie.
    A PPLICATION for Mandamus.

      Jos. J?. ILornor and F. W. JBalcer for tlie Relatrix.
    Respondent m propria persona.

   The opinion of the Court was delivered by

BisRMUDEZ, C. J.

This is an application for a mcmdamms to compel the district judge to grant a suspensive appeal from a judgment rendered by him, commanding the sheriff to eject summarily the relatrix and remove her household effects from certain premises, which she claimed to hold and occupy as lessee.

The complaint is, that the possession of said premises being worth to relatrix more than two thousand dollars; that her application for a sus-pensive appeal and tender of a bond for a sufficient amount having been made within the delay fixed by law; that the execution of the judgment being of a character to inflict on her an irreparable injury; that the proceedings in which said judgment was rendered having been carried on ex pcwte ; that the district judge having refused to grant her a suspensive appeal and being willing to allow a devolutive appeal only, she is entitled to the relief which she seeks in this Court.

The district judge has made an elaborate return, the object of which is to establish the correctness of the judgment sought to be suspensively appealed from.

It is unnecessary to enumerate the different reasons thus assigned in justification of the decree complained of.

It may be that the judgment was correctly rendered and that on appeal it will be affirmed; but that is not the question now to be determined.

The relatrix complains that a judgment has been rendered against her, which, if executed, will work irreparable injury, and that she is entitled to a suspensive appeal from the same, having seasonably tendered an application and a bond for such appeal.

It is true that there are some judgments which become executory as soon as rendered, but they are specified by law. Those hot included must be deemed as intentionally omitted by the law-giver.

It does not appear that the judgment sought to be suspensively appealed from belongs to the excepted class.

The right of appeal is a constitutional one and cannot be abridged, whatever the effects may be, which the granting or enforcement of the same may provisionally occasion.

Under the showing made, the relatrix is entitled to the remedy invoked.

_ It is, therefore, ordered and decreed that the alternative writ of mandamus herein issued, and the restraining order previously made, become peremptory and that accordingly the district judge, respondent herein, do grant the relatrix a suspensive appeal from the judgment mentioned in the petition and complained of, on her giving bond and security for such an amount as the law justifies, returnable to this Court according to law.


text:
    No. 9076.
    Succession of J. B. Ploton.
    In tho absence of sufficient proof to repel the presumption of the gratuity of services rendered in the execution of a mandate, courts are powerless to allow remuneration for such.
    Specially will tho same be denied where surrounding circumstances fortify that presumption.
    A PPEAL from the Nineteenth District Court, Parish of Terrebonne. ./A Goode, J.

      J. JB. Winder for Opponents and' Appellants.

      L. J?. Suthon, contra.

   The opinion of the Court was delivered by

Bermudez, C. J.

This is an appeal from a judgment rejecting an opposed item of an account presented by executors.

The opposition comes from the heirs of the deceased who contend that the sum of $1708 53, for which one Calder was recognized as a creditor <uid, as such, placed on tlie tableau, is not due and that said (¡aider is rather iudebted to the succession.

It is claimed that the amount is due Oalder for services rendered by him to the deceased, as the agent of a. steamboat at the time owned by Mm.

The only testimony adduced to rebut the legal presumption of gratuity of the services said to have been rendered, is that of Calder, himself. The claim is for services of the nature stated, lasting three years, during Ploton’s life time, and is presented after his death, by Calder, who, from the papers of the deceased, apjjearing to be in Ms debt for $891 47, was called upon for an account. In the statement made in response, Calder admits having in his possession that amount but credits his account with that much, striking a balance of $1708 58 as due on his claim of $2500, which was admitted by the executors.

In his reasons for judgment'the district judge says:

“ Mr. Calder was a commission merchant, doing business in New Orleans, and largely engaged in purchasing plantation supplies and selling sugar and molasses. Mr. Ploton was a money-lender, in the Parish of Terrebonne. He advanced large sums of money, which were used in making crops of sugar and molasses, and at the end of the harvest, these crops were turned over to Mr. Ploton, who had consigned them to Calder for sale. By throwing all the business into the hands of Mr. Calder, thereby enabling him to realize a considerable sum in commission, on purchases and sales, without the necessity of making any advances, Mr. Ploton did a favor to Mr. Calder which entitled him to expect some return.
It is true that the business of superintending the operations of a steamboat is attended with much inconvenience, but Hiere is not sufficient proof to justify the court in allowing any compensation.”

An examination of the record enables us to concur in those views.

The appellant claims, however, that the judgment should have h on one of non suit, at best.

The issues were regularly made and proof was adduced both to support and to overthrow the claims and the controversy is at an end. It is a matter of expediency and urgency that claims against successions under administration and which are entitled to a summary trial and determination, should be definitely disposed of, when presented in the shape of oppositions, otherwise successions might never be finally settled and wound up.

We find no error in the judgment appealed from, which is affirmed, with costs.


author: Poci-ié, J

text:
    No. 9139.
    Marcus L. Spencer vs. Mrs. Sarah Cullom.
    In an agreement between a sugar planter and another party for x-he cultivation of a crop on joint account, the planter is not responsible in damages, for injury done to his co-associate’s cane by an unexpected freeze, or for delay in saving the crop, when impeded in his operations by incessant rains and bad roads.
    In a settlement of accounts between such parties the court cannot reject the itemized account of one of the parties on the ground that the charges are excessive, and consider expert testimony for the purpose of ascertaining the quantum meruit. JL'lie items of the account must be scrutinized under the evidence, and rejedted or allowed under the preponderance of evidence.
    APPEAL from tlie Twelfth District, Court, Parish of Avoyelles. JBarbin, J.

      Thorpe, Peterman tf Thorpe for Plaintiff and Appellee.

      Ou,llom. (& Coco for Defendant and Appellant.
   The opinion of the Court was delivered by

Poci-ié, J

This is an action sounding in damages for alleged violations of a contract, and for the payment of a store account.

The litigation grows out of the following facts:

The defendant, who is a sugar planter, agreed to cultivate on joint account with plaintiff, a crop of sugar-cane on a portion of her lands; she was to furnish the land together with a certain quantity of stubble cane then in the ground, and he was to cultivate the whole at Ms exclusive cost and expense. All the expenses of cutting down, hauling and grinding the cane were to be met in equal shares by ‘hem, and the sugar and the molasses were to be divided in kind, in the same proportions between them. Sixty acres of land thus cultivated realized eighty hogsheads of sugar and about one hundred and twenty barrels of molasses.

Plaintiff’s claim for damages rests on two grounds :

1. Unskilful cutting down of his cane during a heavy freeze, during which it was allowed to lay too long in the field, hi consequence of which it decreased in yield to his loss, which he estimates at $500.

2. The unlawful detention by the defendant of six hogsheads of his share of the sugar, which he had promised to ship at a given time to his merchant, for failing in which his credit was destroyed to his great injury, which he sets up at $3000.

The defense was a general denial, coupled with a demand in recon-vention for expenses incurred in grirding the cane,’and for his share of which plaintiff had not yet settled.

The district judge rejected the entire claim for damages, and on the settlement of the accounts between the parties, aEowed the sum of $110 88 to plaintiff, and he rejected the whole of defendant’s recon-ventional demand. She appeals, and plaintiff prays for an increase of the '-idgment in his favor, laying great stress on his claim for damages. On tne first element of damages which he claims, the record shows that the winter of 1882 and 1883 was very severe on sugar planters, who were met by a killing frost in the middle of December, followed by almost incessant rains in the latter part of that month and the first days of January. The cold snap necessitated the windrowing of plaintiff’s cane, part of which was done under his own supervision. The defendant began cutting his cane for the mill on December 26, and ended with his crop on the fourteenth of January following. His complaint is that too great a quantity of his cane was cut in advance of the haulingv The evidence is overwhelming to show that the hauling was impeded by the impassable condition of the roads, and that defendant’s employees did everything in their power to save the crop, in which she had a half interest. That part of his claim is too flimsy to justify a serious consideration.

On the other branch of his claim for damages, the record shows that after the crop had been manufactured, and before the parties had agreed on a division of their joint products, plaintiff took from the sugar-house, with the consent of defendant’s overseer, thirty-four hogsheads of sugar and seventy-one barrels of molasses. After investigation, it was discovered that he had inadvertantly taken molasses in excess of the share accruing to him, whereupon the defendant withheld Ms remaining six hogsheads of sugar as an offset to his unintentional error and advantage. It appears that plaintiff, who had calculated to receive yet more molasses, had obtained credit from a commission merchant in this city on a promise to ship to the latter some twenty barrels of molasses and two of his six hogsheads of sugar. His failure to keep that promise injured Mm in the opinion of his creditor; to that circumstance he attributes Ms loss of credit among merchants, to Ms injury, alleged at $3000, all of which he attributes to defendant’s wrongful act in withholding his sugar, which she shipped in her own name, and for which she accounts to him in her reconven-tional demand. The mere statement of Ms proposition is its best refutation. The circumstance is an incident illustrating the conversion of usually loose and confiding dealiugs between friends and neighbors, into bitter distrust and vindictive exaction on final settlements.

We unreservedly affirm the entire rejection of the claim for damages, which, as effects, have no more connection with their alleged causes than the recent Ohio floods had with the present Egyptian troubles.

The first difficulty to overcome in the adjustment of the accounts, is to ascertain the quantity of molasses produced by the joint crop of sugar made by the parties. Some of that sugar was potted on the the same cistern with other sugars belonging exclusively to the defendant. She contends that only eighty-eight barrels were realized, and that, therefore, the defendant had received some twenty-five barrels in excess; and the district judge finds a much larger amount of products in molasses, and that the excess received by plaintiff was only five and a-half barrels, which he values at $14 80 each. We find from the preponderance of evidence, that the sugar (eighty hogsheads) yielded one barrel and a-half per hogshead, and hence the plaintiff should account for eleven barrels, and the price to be charged him is $20 a barrel, under his own admission -of the proceeds of his sales.

The reconventional demand includes the cost of many things furnished and paid for by the defendant, exclusive of the cost of labor, which has been settled and is, therefore, eliminated from this discussion.

In his written opinion, the judge á quo informs as that defendant’s charges for cord-wood, use of teams, the feed of laborers and many other items of expenditure are so excessive that he ignored or rejected her entire account, and had recourse to expert testimony to ascertain the probable cost of manufacturing sugar per hogshead. In adopting that course he committed two grievous errors. In the first place, he disturbed and re-opened a settlement between the parties touching the amount of wages earned by the common laborers. Plaintiff had furnished in cash his share of that expenditure on the production of the pay-rolls kept by defendant’s overseers, and posted up by her bookkeeper. That settlement is final and binding.

In the next place he erred in rejecting an itemized account of alleged expenditures, supported by competent testimony, in order to establish a quantum meruit by expert testimony.

His refusal to entertain defendant’s account, because her figures tended to show that a hogshead of sugar would cost more than it would bring on the market, is unsound, and is manifestly not founded on the uniform experience of sugar planters. And besides, if defendant cannot recover in a joint venture her legitimate outlay, the attempt to screen her associate would double her losses, and practically place her in the attitude of an insurer, instead of a joint cultivator under the contract.

The record shows that all winters like that of 1882 are great scourges on sugar planters, who are caught by the cold snap and rainy season,. and invariably entail exorbitant expenses in the manufacture of their sugar, and frequently very heavy losses. Defendant’s misfortune cannot deprive her of her just rights against her co-associaté in the crop and in the disaster.

We find that the greater portion of defendant’s items in her account are proved; and hence, after rejecting- all doubtful items in her claim, we have concluded to state the accounts between the parties as follows:

Amounts Due to Defendant by Plaintiff.
To One hundred cords of wood furnished to plaintiff.$400 00
Twenty-eight cords by the trees, at 75c. 21 00
One-half expense in use of her teams. 212 50
One-half salary of sugar-boiler. 40 00
One-half cost of oil, lime, sulphur, etc. 49 25
Thirty-three hogsheads furnished him. 132 00
Sixty molasses barrels furnished him. 180 00
Filling sixty barrels with molasses. 6 00
Heading thirty-four hogsheads sugar. 11 90
Eleven barrels .of molasses received in excess, at $20 a bbl. 220 00
One-half expenses for feeding sixty laborers. 135 00
Amount paid for windrowing cane. 75 00
Total.$1482 65
Amounts Due to Plaintiff by Defendant.
To Six hogsheads of sugar sold by her at $70. 420 00
Use of his team. 55 00
Amount paid by him, windfowing cane. 75 00
Amount of his store account. 167 38
Total. $717 38
Balance in favor of defendant. $765 27

And in that amount she is entitled to recover judgment.

The judgment appealed from is, therefore, annulled and set aside. It is now ordered and decreed that plaintiff recover nothing on Ms demand, that defendant do have and recover judgment against plaintiff on her reconventional demand, in the sum of $765 27, with legal interest from judicial demand, and for costs in both courts.


author: Todd, J.

text:
    No. 9067.
    Mrs. Nancy A. Scheen vs. C. Chaffe, Jr., Syndic et. al.
    In a suit for separation of property and dissolution of tbe community, brought by tbe wife against her husband, who has made a surrender under the State insolvent laws, and accompanied by a moneyed demand, tbe syndic of the insolvent was properly joined as co-defendant in the suit.
    The syndic, as the representative of the insolvent's creditors in such case, could interpose any defense that the individual creditors might do by intervention in a suit of tbe bind where there had been no insolvency proceeding.
    So, where the existence of the wife’s mortgage was denied and the want of proper registry averred, tbe wife to have her debt placed as a mortgage debt on the bilan of tbe insolvent husband, must prove her debt and that the evidence of it was properly inscribed in the parish where the immovables were situated, sought to be affected by the mortgage.
    Where a wife claims from her husband moneys, collected by him on promissory notes, purporting to have been given her by her father, the creditors of tbe husband cannot question the validity of the gift; it is enough that tbe husband received the moneys under color of the wife’s rights and for her and her benefit.
    A failure to record tbe wife’s mortgage against her husband prior to first of January, 1870, did not destroy the mortgage, but its effect against third persons would only begin from the date of its subsequent inscription.
    PPEAL from tbe Tenth District Court, Parish of Red River. Logan, J.

      J. F. Pierson for Plaintiff and Appellee.
    1. A creditor of the insolvent, with the right of mortgage upon the property surrendered, not upon the schodule, may sue tlie syndic to be placed upon tlio schedule with his debt and mortgage. Revised Statutes, sec. 1811; 1 L. 172.
    2. The syndic cannot plead want of registry of the mortgage in such a case, because it is only upon a tableau of distribution that the validity, rant and effect of mortgages and privileges can be finally settled, and tbat among the creditors themselves. 14 L. 250; 2 A. 451; 4A.195; 14 A. 221; 9 R. 47 ; 9 L. 393 ; 2 R. 346 ; 12 A, 775 ; 1 A. 22; 1 R. 275; 19 L. 278.

      X Prima facie evidence of the .correctness of the debt of the creditor is sufficient to entitle the creditor to be placed upon tbe schedule or bilan. 9 L. 396.
    4. In a suit by the wife against the husband or his syndic for the proceeds of property received by tbe busband, in trust for tbe wife, and used and disposed of by him for his benefit, neither the husband nor his creditors can be heard to invalidate the wife’s .title to such property. 22 A. 487; 3 A. 610; 2 L. 4; 17 A. 224.
    5. Mortgage or privileged creditors have a right to require sale for cash of sufficiency of the mortgaged or privileged property to satisfy their debts. Revised Statutes, sec. 1800.

      M. S. Jones and Alexander <& Blanchard for Defendant and Appellant.
    1. The wife’s mortgage or privilege to secure her paraphernalia has effect, under the Constitution of 1868 and Act 95 of 1869, against third persons only in the parish where it may be recorded. Act 95 of 1869, page 114, sec. 1; Constitution of 1868, art. 123
    2. Donations inter vivos of immovables and incorporeal things must be by authentic act; and where such donations constitute the cause and consideration of an alleged indebtedness on the part of the husband to tbe wife, and the fact of the giving, which constituted the debt, is denied, they must be proved by authentic evidence, and parol is not admis-Bible to prove same. C. C. 1536, 1538; 22 A. 97, 358, 398; 15 A. 585; 12 M. 649; 3 A. 610 ; 23 A. 242.
    3. Article 1541, Civil Code, merely dispenses with the authentic act of acceptance, on the part of the donee, required in the preceding article, 1540. It does not dispense with the authentic act of donation, but, on the contrary, pre-supposes such an act. . O. C. 1540-41.
    4. Items of indebtedness, in excess of five hundred dollars, must be proved by one witness and corroborating circumstances. C. C. 2277;
    5. The fruits of real estate follow the ownership.
    6. Endorsement transfers a note for value received; and, having been proved, it precludes the hypothesis of a donation mter vivos, which must, be proved by authentic evidence.
    7. By operation of Article 123, Constitution of 1868, and Act 95 of 1869, a tacit mortgage, in existence prior to January, 1870, and not recorded by that date, is absolutely destroyed as to third persons and can never be revived. 22 A. 278 ; 24 A. 25; 26 A. 534-584; 32 A. 186.

      Bcuyne & Denégra on the same side.
   The opinion, of the Court was delivered by

Todd, J.

The plaintiff sues her husband, J. H. Scheen, for a separation of property, and the husband, before the institution of the suit having made a surrender of his property under the insolvent laws of' the State, she joins his syndic as co-defendant in the action and asks judgment against him for a large amount on account of her parapher-nal funds, alleged to have been used by her husband, and also, for a recognition of her legal mortgage and to have her claim thus established, placed upon the schedule of his debts.

From a judgment in accordance with the prayer of her petition and recognizing the plaintiff as a mortgage creditor of her husband’s insolvent estate, for $29,321 83, the syndic has appealed.

In the court below, the husband made default, but the syndic put at issue the debt and mortgage claimed and specially averred, (quoting) that if plaintiff ever had a legal mortgage thé same had no existence or effect for want of a due and seasonable registry.”

There is no controversy in this Court, over the judgment, so far as it decrees a separation of property and a dissolution of the community between the spouses.

The moneyed demands of plaintiff, against her husband, are set forth in the petition as resulting from his receiving and spending the proceeds of several lots of cotton, given her by her father, and collecting the price of several tracts of land sold by her father to divers persons, and which prices — in the cash and rates representing the same — had also been donated to plaintiff by her father.

The several items making up this account are supported by plaintiff’s own testimony, that of her father and mother, and, in some instances,' corroborated by tbe parties purchasing tbe lands mentioned, and, to some extent, by other witnesses.

Tbe greater part of tbe indebtedness claimed grows ont of tbe husband collecting and using tbe moneys realized on tbe promissory notes taken in tbe sales of the lands, and alleged, as stated, to have been donated to the plaintiff.

This portion of plaintiff’s demand is strenuously resisted by tbe syndic, on tbe ground that tbe donation of tbe promissory notes — being alleged incorporeal rights — was invalid, because not made in writing, nor in tbe manner prescribed by law, and that plaintiff’s title to them was, therefore, incomplete, and tbe funds realized from their collection did not, in consequence, belong to her and gave rise to no valid claim, on her part, against her husband.

We cannot accede to this proposition. Tbe validity of these donations is not questioned by tbe donor, nor bis heirs, nor bis creditors, and we cannot perceive any right in tbe creditors of Sebeen to raise such objection. It does not concern them bow, or in what manner tbe donations from tbe father to bis daughter were made, and whether they were perfect or not. It is sufficient that tbe husband received or collected tbe funds in question, as tbe agent of bis wife, and under color of a right claimed by her and recognized by Mm. If be were tbe sole and real defendant in tMs suit he could not escape liability to bis wife by denying or questioning her right tó tbe funds collected by him for her. . They did not belong to him in any event and be would not be heard disputing her claim to them. Tbe syndic, as tbe representative of tbe husband, and even as tbe representative of bis creditors, can have, under these conditions, no greater right than tbe husband, himself, would have.

This view of tbe matter is in exact accord with previous adjudications of this Court on this point. 22 A. 487 j 3 A. 610; 2 A. 4 j 17 A. 224.

Nor is tbe resulting liability of tbe husband to tbe wife, affected by tbe fact, dwelt on by tbe counsel for tbe syndic, that in one instance tbe husband sued on some of tbe notes received for his wife and obtained judgment thereon in his own name and took tbe lands mortgaged to secure them in settlement of tbe debt, with tbe title in bis own name, and subsequently, sold tbe lands and used tbe money received therefor. These changes in the form or character of tbe debts and mode of settlement, did not impair tbe obligation of tbe husband to account to tbe wife for tbe full value of tbe notes and securities thus used by him.

The most serious contest is in regard to the legal mortgage claimed. Its existence is first denied for the reason that the evidence of the mortgage was not inscribed prior to the first of January, 1870 — it being-contended that by this omission the mortgage was absolutely lost and could never be subsequently revived or reasserted. Such is not our conclusion. The omission to register at that time only deprived the mortgage of force with respect to third persons, who, at that date, had privileges or mortgages upon the property of the husband theretofore affected by the superior claims of the wife. So far as relates to the husband and his property, the mortgage in favor of the wife, if there existed one, continued to exist without registry, and, if recorded subsequently, took effect as to third persons, from the date of its registry.

The evidence of plaintiff’s legal mortgage against her husband was recorded in the parish of Red River, on the 30th of April, 1879, and its effect upon the immovables in that parish surrendered by the insolvent, was properly recognized by the judgemnt.

The mortgage was never inscribed in the parish of Bienville, where a part of the immovables of Sebeen, the insolvent, and embraced in his surrender, are situated; at least there is no evidence of such registry in the record.

Without such evidence, we think the lower court was in error in recognizing and decreeing the existence of the mortgage in that parish.

The issue as to the existence and proper registry of the wife’s mortgage was, in our opinion, expressly and clearly raised, as is manifest from the extracts made from the answer of the syndic appearing above. That the syndic had a right to raise such an issue, admits of no doubt in his capacity as the representative both of the husband and of his creditors, and we cannot see the force of the contention of the plaintiff’s counsel, that the mortgage over the entire property should be recognized in this suit and the question as to its effect and rank be determined hereafter by the creditors of the insolvent, inter sese in the proceedings relating to the final settlement and distribution of the insolvent’s estate. In connection with this proposition the counsel suggests that uprimia facie showing as to the mortgage should suffice to justify its recognition in this suit; but, so far as relates to his immovables in the parish of Bienville, there is not only the absence of ‘A, prima, facie showing as to the registry of the mortgage but a want of all evidence touching its existence. As to the creditors represented by the syndic, it must be borne in mind that the record is the mortgage and where there is no record — as concerns them — there is no mortgage.

W e fail to see any tiling in the authorities referred to by the counsel, that lead us to a different conclusion. 'File only bearing they would seem to have on the question is to suggest a doubt whether in an action directed against the syndic alone, whether any judgment recognizing a mortgage in favor of one creditor could be rendered, at least, one that would bind the other creditors of the insolvent.

We think it was incumbent on the plaintiff to make the same proof of the existence and registry of her mortgage against the syndic in the present suit, as she would have been compelled to do in sue!) an action where there was no insolvency against intervening creditors who put at issue her claims as asserted in tl.is suit.

The judgment in this case, therefore, so far as it decrees a mortgage on the immovables in Bienville must be corrected, but, inasmuch as the counsel for plaintiff asserts, without contradiction, that the mortgage was recorded in the parish of Bienville, and the evidence of the fact was omitted because, in his opinion, it was not called for by the pleadings, and the omission has been pressed for the first time before this Court; while we cannot remand the case on this account we will leave the way open for the proof, if it exists, to be made hereafter.

The amendment asked for by the plaintiff, ordering a sale of the property subject to the mortgage, after full consideration, we must decline to allow.

it is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed in every respect, save wherein it recognizes a legal mortgage, in favor of plaintiff, on the immovables of J. H. Scheen, her husband, and embraced in his surrender, lying in the parish of Bienville, and in said respect, it is now ordered, adjudged and decreed that the judgment be reversed and the claim to a mortgage upon said immovables in said parish of Bienville be dismissed as of non-suit, defendants to pay the costs of the lower court and plaintiff the costs of appeal.


author: Fenner, J.

text:
    No. 8948.
    Gomila & Co. vs. Adams Brothers.
    The stipulation in a contract of charter party that the “vessel is to have a lien on the cargo for freight, dead freight and demurrage,is valid and binding as between the owners and charterers, and the former have a right to require that the cargo furnished by the latter shall be subject to such lien. When cargo is offered shipped as the property of third persons, tlio latter would not be bound by such lien in absence of their consent, express or clearly implied, to the conditions of the charter party. The owners, therefore, have the clear right to have such consent expressed upon the face of the hills of « lading, and their refusal to grant clean hills cannot he complained of hy the charterers as a breach of the contract.
    A PPEAL from the Civil District Court for the Parisli of Orleans. A Mowroe, J.

      John A. Oanwphell and J.Wan-d Gwrlmj,Jr., for Plaintiffs a id Appellees:
    Where a vessel is chartered for a voyage for a round sum, or specified rate of freight, the charterer has a right to ioad the vessel himself, or allow others to do it under the con- . tract with him. 2d Ed. Conkling’s Admiralty, pp. 173, 175; 3 Woods, 28.
    “ It is now the established law that the goods of third persons, who are shippers under the charterer, are liable to the owner only to the extent of the freight, payable lio the charterers on account of such goods, as in the case of a general ship.” Conlding’s Ad. 173, 176 ; The Volunteer, 1 Sumner’s It. 551, and authorities there cited; Paul vs. Birch, 2 Atkins, 621; • Holt’s Law of Shipping, 471; Christie vs. Lewis, 2 Brod. & Bing. 410 ; Eaith vs. East India Company, 4 Barn. & Aid. 630; Parsons on Shipping. 286; The Ibis, 3 Woods, 28; Kerford vs. Mondel, o Hurl. & Nor, (Ex.) 931
    The clause in the charter party whereby the master agrees to give bills of lading “ without prejudice to this charter party,” does not change the general rule. 3 Woods, 30 ; 2 Atk. 621; 5 Hurl. & Nor. (Ex.) 931.
    The construction of charter parties, like the construction of other mercantile instruments, should “be liberal, agreeable to the intention of the parties and conformable to the usage of trade in general, and of the particular trade to which the contract relates,” 17 How. 69; C. C. arts. 1950, 1951, 1952, 1953, 1955.

      T. J. Semmes <& Payne and Henry Herds for Defendants and Appellees:
    1. The usage or custom of a port not allowed to vary, abridge or annul the provisions of a charter party, which is to be alone considered in determining the rights of the parties to it. The Alhambra, 5 Prob. Liv,; 5 C. P. Liv. 130; 10 C. B. 212.
    2. As between charterer and owners of a vessel, the charter party and not the bills of lading determine the rights and obligations of the parties. Small vs. Moates, 9 Bing. 392; 100 E. C. L. 808; L. B. 12, Equity Cases, 377.
    3. As between owners of vessels under a charter party and third persons who hold bills of lading, such bills of lading are alone to be considered in determining the liability of such third persons, as far as demurrage is concerned. 5 El. & Black. 589; 10 C. B. (N. S.) 802; 4 El. & Black. 945; 15 C. B. 285; 1 B. & Ad. 122; 6 Q. B. 542; Machlachian on Shipping, 489; Abbott on Shipping, 241.
    4. Where charter gives a lien for demurrage, the master has the right, in order to secure this lien, to insert a clause in bills of lading in hands of charterer, or of third persons who have knowledge of charter party. Peek vs. LaTsen, L. B. 12, Equity Cases, 377; Balfour vs. Wilkins, 5 Sawyer, 438.
    5. Construction of the clause in charter party: “Bills of lading to be signed as presented, • without prejudice to charter.” 112 E. C. L. 373; 4 Hurls. & Nor. 385.
   The opinion of the Court was delivered by

Fenner, J.

This interesting case arises out of a contract of charter-party entered into between plaintiffs and defendants, hy which the former chartered the latter’s vessel, the “Altna Craig,” for a voyage from New Orleans to one of certain designated European ports.

Tlie contract stipulated that the charterers were to furnish a full cargo at certain fixed rates of freight, settled the lay-days and running days, allowed for loading and discharging, and the demurrage to he paid in case they were exceeded.

The following are the significant clauses hearing on the instant controversy :

Bills of lading to he signed as„ presented, without prejudice to this charter; hut any difference of freight to he settled on signing hills of lading, if under chartered rate, in cash, less interest and insurance if over chartered rate, by master’s draft payable five days after arrival at port of discharge. * * * The charterers’ responsibility under this charter shall cease as soon as the cargo is shipped and the hills of lading signed, provided all the conditions called for in this charter have been fulfilled or provided for by bills of lading. Vessel to heme a Ken on the cargo for freight, dead freight and demvwrrageP

The further essential facts may he stated very briefly. The charterers negotiated for shipments on the vessel by third parties and gave them orders on the vessel for clean bills of lading. The master refused to sign hills of lading in favor of such third persons without the insertion of a special clause binding them to “ all the conditions of the charter party.”

The result was that shippers refused to accept such bills, the charterers were unable to load the vessel, abandoned the contract and bring the present suit against the owners for $7200, as damages occasioned to them by the aforesaid refusal, which is alleged to have been unlawful and in violation of the contract of charter party.

The stipulation of the contract providing, “vessel to have a lien on the cargo for freight, dead freight and demurrage,” is certainly clear and unambiguous. It means that the vessel, which, in absence of such a clause and under general principles of maritme law, would have a lien on cargo only for freight due thereon, shall, by this particular agreement, have a lien on the cargo, not only for freight, but for dead freight and denvwrrage.

If this agreement be valid and binding, as between the parties, we And it difficult to understand upon what principle the charterers could require the vessel, or the vessel be bound, to receive cargo upon which it would not have “a lien for freight, dead freight and demurrage.”

Now, whatever difference of opinion may exist on other points, it is conceded on all hands that under the maritime law, everywhere, the vessel would have no such lien upon cargo shipped by third persons, unless the latter had expressly or impliedly consented thereto. And considering the quasi negotiability of bills of lading, it is doubtfnl if such consent could be made effective, unless clearly expressed on the face of the bill.

Indeed, it is obvious that the very motive of the shippers in this case in refusing' to ship under bills of lading recognizing such lien, was their unwillingness to subject their goods to the same and their desire to have bills of lading which they could negotiate free from said lien.

It follows that, under a contract clearly binding them to furnish a cargo upon which the vessel should have “a lien for freight, dead freight and demurrage,” the charterers tendered and required the vessel to receive cargo upon .which it should have no such lien. McLachlan on Merch. Ship. 489, 490; Abbott on Merch. Ships and Seamen, 242; Smith vs. Seiveking, 4 El. & Bl. 945; Wegener vs. Smith, 15 C. B. 285; Shappell vs. Comfort, 100 E. C. L. 808; Peek vs. Larson, L. R. 12 Eq. Cases, 377.

The refusal to receive cargo on such terms cannot possibly be construed into a breach of the contract without writing out of it the clause referred to.

The learned counsel for plaintiff seek to avoid the effect of this clause on two grounds:

1. They contend it is inoperative and of no effect.

2. That it is controlled and nullified by other clauses of the charter party.

I.

It is conceded that the English authorities above quoted and others maintain the validity and binding effect of such a clause, not only between the. parties, but upon third persons who ship under bills of lading expressly accepting the conditions of the charter party.

But it is claimed that this jurisprudence of the English courts is of recent origin and in derogation of the earlier and sounder doctrine which should govern American courts.

The high authority of Lord Tenterden is cited as sustaining the proposition that the clause under discussion is “inoperative.” We have examined this reference with care and we are satisfied that it is not susceptible of the construction placed upon it by counsel. It does not suggest that such a clause is not fully binding as between the owners and charterers, which seems to be all that is essential in the present case. It only means that the mere insertion of the clause in a charter party is, by itself, “inoperative” to secure the stipulated lien upon goods shipped by third persons in absence of their consent thereto expressed or implied. This is unquestionably correct and in harmony with the authorities relied on by defendant. Indeed, it formed the very reason why the defendants required the shippers to accept bills of lading subjecting their goods to this condition. Mo authority is quoted denying the right of parties to make and to execute such an agreement.. No principle of law exists upon which such a stipulation can be held to be forbidden or stricken with nullity.

We consider, therefore, that defendants were in their right and committing no breach of the contract when they required that all cargo tendered by the charterers should be subjected to the “lien for freight, dead freight and demurrage,” as stipulated by contract.

II.

Plaintiffs claim that the prior clause: “ Bills of lading to be signed as presented, without prejudice to the charter party,” etc., regulated the duties of the owners as to the signing of bills of lading and was not enlarged by the subsequent clause which we have been discussing.

It is clear to our minds that this clause had no reference to anything but the rate of freight. It simply said to the charterers: “You are bound, it is true, to pay me the rate of freight agreed upon between ourselves; but you may make contracts with shippers at any rate you please and insert it in their bills of lading, and we will sign them os presented, provided you pay the difference if the rate is less, and we will pay you if it is greater' than that agreed between us.”

This did not, in the least, impair the right of defendants to require that the cargo should be subject to the stipulated lien for “freight, dead freight and demurrage.”

It is not pretended that they ever refused to sign bills as presented because of the rate of freight mentioned therein being different from that agreed on in the charter party, on compliance of the charterer with his obligation to pay the difference. They have not, therefore, violated this clause.

In a case indistinguishable from this in every particular, the Circuit Court of the United States, within whose admiralty jurisdiction such contracts commonly fall, has reached the same conclusions now announced by us. The Peer of the Realm, 19 Fed. Rep. No. 3, p. 216.

Like views are sustained in an able opinion by the judge á quo.

Judgment affirmed at appellants’ costs.


text:
    No. 9155.
    H. A. Walmsley, Executor, et al. vs. Catherine E. Levy, Executrix Catherine E. Levy, Executrix, vs. S. P. Raines, Sheriff, et als.
    (Consolidated.)
    A mortgage creditor can proceed via executive to enforce his claim, nothwithstandrag the death of the mortgagor, and even though the property is under administration.
    If he does not thus proceed, the executor may obtain an order of sale in the mortuary proceedings as the representative of all the creditors.
    But the mortgage creditor cannot he forced to submit to a sale of fractional parts oí' the mortgaged property, nor can he he compelled to run the risk of diminishing its saleable value, by submitting to a sale in lots and on credit on the theory that, if sold piecemeal, tlie property will realize more than if sold in block and for cash.
    If the executrix has been forced to give security for the mortgage debt at the instance of the party holding it, he is protected against all contingencies, and cannot complain if the sale proceeds under her order, -where the terms and mode of sale have been changed to conform to his demands.
    APPEAL from the Eleventh District Court, Parish of Natehito-_ ches. Pierson, J.

      Jaelc <& Dismutes for the Appellees.

      Watlcins & Scarborough for the Appellant.
   The opinion of the Court was delivered by

Manning, J.

These suits are cross-injunctions.

Mrs. Levy, as executrix of her husband’s will, obtained on November 8, 1882, an ex parte order of sale of tlie succession property to pay debts, tbe terms being one-third cash and the residue on one and two years’ credit, the land to he sold in lots of one hundred acres or less. The sale was advertised to take place on December 13th. The Walms-le,ys obtained, on December 8th, an order of seizure and sale of the same property, in block, to pay a special mortgage overdue. On the 11 tli, they injoined the sale under the order in the succession proceedings, and oil the same day Mrs. Levy injoined the sale under the executory process.

The single question is which order shall prevail.

In the Wahnsley injunction the sweeping allegation is made that the succession is “notoriously and confessedly insolvent.” Mrs. Levy denies this and avers that the sale, as ordered by the court on her petition, will realize a sufficient sum to pay all the debts of the deceased, and that the execution of the order of seizure and sale will result in a ruinous sacrifice.

The judge perpetuated Mrs. Levy’s injunction, and maintained her order of sale, altering the terms so as to require the Smith plantation to be sold in block and for cash. Both parties appeal.

The inventory appraisement of the property is $32,880 39, and the acknowledged debts amount to $22,284 92. The mortgage claim of the Walmsleys, including interest to December, 1882, and attorneys’ fees, is $13,895 15, and they have compelled the executrix to give security for a sum exceeding their debt by one-fourtli. The witnesses, touching the value of the Smith place — the bone of contention' — vary greatly, W. B. Walmsley fixing it at $10,000 and (’. H. Levy at $30,000. The inventory of September, 1882 has that place appraised at $18,000, and after it had been divided into lots preparatory to the sale under the succession order, it was re-appraised by lots in sum total $15,688 70— a result unfavorable to the theory that it was worth more and would bring more if sold in lots than in block. If or it was but theory after all, and nothing but the actual event of sale can test the correctness of the witnesses’ opinions upon that matter.

A mortgage creditor has an undoubted right to proceed via exeeutiva notwithstanding the death of the mortgagor, and to enforce his process against the mortgaged property even when it is under administration. Gally vs. Powling, 30 A. 323; Lamorere vs. Suc. Cox, 32 A. 246. If he does not proceed via exeeutiva, nor by application in the mortuary proceedings, the executor may initiate and perfect the sale by obtaining an order therefor as the representative of all the creditors. Suc. Hood, 33 A. 470. But he cannot be forced to submit to a sale of fractional parts of the property since his right attaches to the, whole, Lallande vs. McRae, 16 A. 195; Hughes vs. Patterson, 23 A. 681; nor can he bo. compelled to run the risk of diminishing the saleable value of the mortgaged property by submitting to a sale, other than his mortgage contemplates, on the theory that the property if sold piecemeal will bring the amount of his mortgage, or bring more than if sold as an entirety. The figures already stated show the Walmsley mortgage debt, with interest added to the present time, is only a little belo-w the new appraisement of the sub-divided lands. The lower judge was therefore correct in altering the terms of sale, upon the demand of the mortgage creditor, so that the Smith plantation shall be sold in block and for cash.

We do not find it necessary to say here, authoritatively, whether the precedence in point of time of the order of sale in the mortuaria is determinative of the question, which order shall prevail. The dictum in Poutz vs. Bistes, 15 A. 636 is seemingly based on the embarrassment which would be produced by a conflict of jurisdiction, (inch embarrassment could not exist in this caso. The lower judge maintained the creditor’s injunction so far as to prohibit the sale proceeding on the terms first prescribed, and dissolved it as to the absolute prohibition of sale under the order in the mortuoria, and ordered that sale to proceed. The only reason for a modification of that judgment must be that the creditor prefers to be the instrument, through the sheriff, of making the sale, and distrusts the fidelity of the executrix in accounting for the funds. He has provided for this contingency by obtaining special security for himself, and it matters not under that state of facts therefore, whether the executrix make the sale under her order or that it be made under his process.

Judgment affirmed.