text:
    No. 304.
    John R. Jones vs. John Lake, Sheriff, Et Al.
    A purchaser of real property at sheriff's sale, made under Ji. fa. in the foreclosure of a special mortgage, can not acquire or take title to any other property than that coming within the description recited in the act of mortgage.
    As against a seizing creditor of such purchaser's vendor, said purchaser, seeking to arrest the sale by injunction, on an allegation of his ownership as adjudieatee of the property seized, is in duty bound to make out liis title by clear- and indisputable written evidence.
    3. In such an injunction suit, neither the verity, nor validity of the judgmc.nt is. put at issue, and it is clearly incompetent for plaintiff to attack or question the right of the plaintiffs in execution in any other respect.
    APPEAL from the First District Court, Parish of Caddo. Taylory J.

      Wise <& Herndon for Plaintiff and Appellee:
    1. A mortgage given on a tract of land is sufficiently descriptive if it is reaso- ably accurate and full in itself so as to inform the public what property is covered by it. (24 An. 519, Consolidated Association of Planters of Louisiana vs. Mason et al.)
    2. A mortgage or deed that describes a tract of land as being east and north of a certain tract of land, it being all the land now owned by the mortgagor in said tract, is good and sufficient and embraces all of the land in said tract or block.
    3. When the intent of the parties is doubtful, the construction put upon it by the manner in which it has been executed by both or by one with the express on implied assent of the other furnishes a rule for its interpretation. It. 0.0. Sec. 1956.

      R. J. Looney for Defendants and Appellants:
    Exception No Causis of Action.
    1. The question is not one of a defective description, because the land seized by defendants is entirely different land from that claimed by plaintiff's act of ? neriff’s sale.

      2. The motion to strike out all allegations as to the claims of McCutclieon should have been sustained, because: “But one question can be heard or adjudicated, and that is, is the plaintiff the owner by legal evidence of the property actually seized?” See Simpson vs. Mills & Cleveland, 12 An. 173; McRea vs. Brown, 12 An. 181.
    3. The judgment of defendants and sought to execute is an indivisible obligation. See Rev. Code 2108, 2109; Hughes vs. Patterson, 23 An. 679.
    4. Ho injunction could legally be given or heard without making Mrs. Stockwell a party and giving a bond in favor. Robertson.vs. Travis, 4 An. 151.
    On The merits.
    The District Judge, in his opinion, says he knows of no law creating a difference of construction between acts of sale on fi.fa. and mortgages.
    The difference is marked and broad.
    Mortgages, like all conventional obligations, ai*e construed against him who contracted for the obligation. See Rev. Code, Arts. 1957, 1958, 1959; 7 An. 458, Shepherd vs. Phillipps; 10 Rob. 53, Andrews vs. Rhodes.
    But in forced sales under a fi. fa., the rule is strictly in favor of the defendant in execution. 7 An. 305, Peekersgill vs. Brown; L An. 338, McG-ary vs. Owen; 4 An, 293, Gales vs. Christy; 5 An, 255, Scrull vs. Payne; 37 An/203,Veal vs. Moll; 9An. 540, Snyder vs. Brady: 13 La. 205; 6 An. 452.
    All and every word and clause in a written instrument must be interpreted one by the other, giving each word or clause the sense that results from the entire act. R. C. 1955; 11 An. 98; 9 Rob. 21.
   The opinion of the court was delivered by

Watkins, J.

Petitioner, alleging ownership and possession, in good faith, of the following described real property, viz.: “ All that portion of lot, or block, sixty-eight (68), of the city of Shreveport, north and east of Bosworth’s boundary line,” owned by Mrs. M. D. O. Oane, in 1874; and that he acquired the same at sheriff’s sale made in 1886, in the foreclosure of a special mortgage executed by Mrs. Cane, in favor of one Leavenworth, in 1874, and in the proeesverbal whereof said property is described as “all of lot or block sixty-eight (68), north and east of Bosworth’s boundary line,” enjoins the seizure and sale of same, under an execution issued under a judgment in the suit entitled M. J. McCormick vs. M. D. O. Cane.

He alleges the death of the plaintiff in execution, and represents that his heirs are Mrs. Anna B. Stockwell, Miss Williamena B. McCormick, and Mr. William B. McCormick; and he avers that Mrs. Stockwell has no interest in said judgment or execution, because she has long since conveyed her interest therein to S. B. McCutcheon, who denies having authorized the issuance of said writ. He prays judgment for five hundred dollars general damages, and two hundred ‘ and fifty dollars attorneys’ fees, against Williamena B. and William B. McCormick, in solido, and perpetuating his injunction.

The two defendants named moved to strike from the petition the allegations in reference to the assignment by Mrs. Stockwell to McCutcheon, and his denial of authority for the issuance of the writ of execution, on the ground that they are foreign to any legal investigation of this case; and no right or interest, as such, of Mc-Cutcheon, can be determined in this case, as the plaintiff “must stand against the world on his own title; and further, because neither Mrs. Stockwell nor McCutcheon are made parties to this suit.” p

This motion being overruled, the two defendants named filed an answer in which they first plead a general denial, and then urged in a special defence, that they caused to be seized, in the execution of their judgment, “ a certain lot of ground in that portion of block sixty-eight (68) adjoining and to the north and northwest of the land sold by S. Bennett and Mrs. M. D. O. Cane to George M. Nicholls, in April, 1848; and since said time has remained a separate and distinct portion of block sixty-eight, and is the property of Mrs. Cane, and that her title thereto has never been divested.”

Their answer then avers that plaintiff’s petition and annexed documents disclose no grounds for this action. And it further avers that the execution enjoined runs in favor of Anna B. Stockwell as a co-heir of the two defendants named, but the injunction bond does not. They pray the dissolution of the injunction, with $500 general damages, and $500 special damages awarded against the plaintiff.

On these issues the parties went to trial, and there was judgment in plaintiff’s favor, perpetuating his injunction without damages.

I.

It is our opinion that the defendants’ motion to strike from the plaintiff’s petition the allegations referring to the assignment of Mrs. Stockwell to McCutcheon of her interest in the judgment, execution of which is enjoined, should have prevailed, because such an issue can not be litigated in this suit. The controversy presented by the plaintiff, primarily, is title vel non of the property seized, and it is of no consequence to him what particular person is owner of the judgment under which same is seized. The injunction is directed against the seizure and sale of particularly described real property, and not against the judgment. This suit is only a third opposition coupled with an injunction.

We can not, in the present state of the case, remedy the error, otherwise than by declining to consider the averments referred to. The informality suggested in the injunction bond can not be considered either, as there was no motion made to dissolve on that account filed in limine.

II.

The controversy being narrowed within proper limits, may be stated in this wise: The defendants seized the property claimed, amongst others, as that of Mrs. Oane, and the foundation of plaintiff’s claim of ownership is the mortgage from Oane to Leavenworth, which he, as assignee, executed against the mortgaged property, and because the adjudicatee of same at execution sale. Hence the question at issue, and to be determined is, whether the plaintiff acquired title thereby to the particular property in dispute; and that must be ascertained by reference to the acts of mortgage and the sheriff’s sale. If these fully and sufficiently describe the property to convey a title, the plaintiff’s injunction must be perpetuated, leaving the defendants to assert whatever adverse rights they have in some other proceeding.

The defendants were seeking, by an execution of a judgment via ordinana, to collect a debt. There was no effort to enforce a mortgage. There is no claim of that kind set up in their answer. Plaintiff enjoined the sale of particular property on the ground that he had acquired title from Mrs. Oane in the foreclosure of the Leavenworth mortgage. He can take nothing by this action other than that MrSv Oane mortgaged to Leavenworth, for the plain reason that, in the confessed foreclosure of that mortgage, he could not cause to be seized and sold any property other than that which she had hypothecated to his assignor.

Referring to the authentic act of mortgage from Oane to Leavenworth, we find the following is the description of the property which is therein hypothecated, viz.: “All that portion of lot or block sixty-eight (68), north.and east of Bosworth’s east boundary, now owned by Mrs. M. D. C. Oane.”

The same description is contained in the Ji. fa. under which sale was made to the plaintiff under judgment in the suit entitled John R. Jones vs. Mrs. M. D. O. Oane.

The advertisement thereof contained the same description, omitting the words “ now owned by Mrs. McD. O. Cane.”

The judgment recognizing the mortgage and ordering sale of the hypothecated property, recites the same description as that contained in the act of mortgage.

The sheriff’s prooes verbal of sale contains the same description.

This is identically the same description as that contained and set out in the plaintiff’s petition.

The description of the property as given in the advertisement of sale enjoined is as follows, viz.

“Part of block sixty-eight (68), in the city of Shreveport, beginning at the north corner of lot sixteen.(16), in block fifty-four (54), run thence on a prolongation of the northwest boundary line of Spring street, along the Hamilton Oil Mill line, to Cross bayou; thence down the bayou to a point from which a line parallel with the first described line will strike the north corner of lot sixteen (16) in block fifty-five (55) ; thence along the northwest boundary line of block fifty-five (55), and - the prolongation of the same to the point of beginning, containing about an acre and a half, fronting on Gross bayou on one side, and the Texas and Pacific railroad on the other.”

The question to be solved is, whether the property claimed by the plaintiff is contained in the description of the property as advertised for sale.

Then we must ascertain what is the property described in plaintiff’s deed, as “ all that portion of block sixty-eight (68) north and east of Bosworth’s boundary line.”

There is nothing ambiguous or uncertain in this description. “ Bosworth’s boundary line ” is a fixed and definite limit, and can be easily located; and hence that portion of block sixty-eight (68) north and east ” of thatline is easily located. No one examiningthe map of the city of Shreveport could easily mistake its locality, or the extent of its area. In their printed brief defendant’s counsel aver that they “ never contested (plaintiff’s) title to that portion of block sixty-eight (68) covered by his deed, or by the mortgage of Leavenworth ”(p. 7).

Reference to the maps in evidence discloses that block sixty-eight (68) fronts on Gross bayou on the north, is of an irregular frontage on that side, and extends on the south side nearly the entire width of three adjoining blocks. At one time this property was owned by Mrs. Cane and one Bennett, and they sold off a portion of it, situated in the centre, in March, 1848, to George M. Nicholls.

The description of the property sold is as follows, viz.:

“ The following piece of ground in the town of Shreveport, and known as a part of block number sixty-eight (68), and described and bounded as follows, to-wit:
“ Commencing at the corner of block No. 54, and corner of lot No. 9, of said block, it being the northwest corner of said lot and block, and running in a direct line as a continuation of the northwest boundary (line) of Market street, until said line reaches Cross bayou; and running down said bayou until it reaches a line drawn from Cross bayou parallel to the line first above described, and extending from the bayou to the northwest boundary line of block numbered fifty-four (54) in the prolongation of said line; thence along said last line to the starting point, so as to include within these boundaries two and five-eighths (2^s) acres.”

By this conveyance, block 68 was completely severed and sub • divided into three distinct and separate lots, each one distinct, separate and well' defined — as will appear from the DeVoe map in evidence — the 2)é acres lot sold to Nicholls reaching across block 68, from the corner of lot No. 9, in block 54, to Cross bayou, and completely covering the intervening area.

The portion of block 68 to the north and east of the Nieholl’s lot— which is the portion now in controversy, and precisely the same as that contained in the advertisement of the sale which is enjoined— is found to contain one and one-half (l,la) acres.

That portion of block 68 to the west and south of the NioholPs lot is much larger than either of the other two lots, the distance from front to rear being greater.

The portions sold to Nicholls was adjudicated to W. E. Hamilton, by same description, in December, 1868, and thereon he erected and established his oil mill plant, as indicated on the DeVoe map.

On the 7th of December, 1871, Mrs. Cane and Mrs. McCormick conveyed to A. W. Bosworth the following described lot, viz.: “Being a part of block sixty-eight (68), in said city, according to the original map, said-lot or block sixty-eight (68) having been ■allotted to these vendors in the partition of the original Shreveport Town Company of record, and the land herein conveyed is that part of said block or lot sixty-eight (68) formed as follows, by projecting the dividing line between lots eleven (11) and twelve (12) of block thirty-seven (37) to Cross bayou, running back on said projected line two hundred (200) feet; thence running a line eighty (80) feet in length perpendicular to said projected line and parallel to the northwest front of said block thirty-seven (37) ; and thence running a line one hundred and eighty-nine and one-half (189 }g) feet to Cross bayou; and thence along said bayou to the front where the projected line between lots eleven (il) and twelve (12) of block thirty-seven (37) strikes the said Cross bayou; and the property herein conveyed corresponds to lots twelve (12) and thirteen (13) of the proposed plan, in future extension of a block between Market and Edwards streets and Cross bayou,” as will be shown by the H. P. Leavenworth survey of November 27, 1875 — shortly antecedent to this sale.

Subsequently there was a partition between Mrs. Cane and Mrs. McCormick; and on the 10th of January, 1874, Mrs. Cane consented to the Leavenworth mortgage aforesaid, by the description given supra, to-wit: “ All that portion of lot, or block, sixty-eight (68), north and east of Bosworth’s east boundaryand not as stated in the plaintiff’s petition, viz.: “all of lot or block sixty-eight (68) north and east of Bosworth’s boundary line,” the two descriptions being materially different.

A full and complete description of the Bosworth purchase has been given, in order to show that the “ Bosworth’s east boundary ” was a fixed and established line, by the Leavenworth survey of November 27, 1871, antecedent thereto — the surveyor becoming,- subsequently, the mortgagee of Mrs. Cane, Bosworth’s vendor.

We have also given a full and complete description of the property Nicholl’s purchased from Cane and Burnett in 1848, for the purpose of showing what is meant by “ the northwest boundary line of Spring street, along the Hamilton Oil Mill line,” which occurs in the advertisement of the enjoined sale; and to show that ever since 1848 the Hamilton Oil Mill property has had a- definite and fixed eastern boundary line, as will appear from the De Voe map.

It is upon these descriptions, thus established by contemporaneous public records, that the defendants rely for the assertion in their answer, that Mrs. Cano-, their judgment debtor, still owns “ that portion of block sixty-eight (68) adjoining and to the north and northeast of the land sold by S. Burnett and Mrs. M. D. O. Oane to-George M. Nicholls, in April, 1848,” etc.; and that the plaintiff did not acquire same under the Leavenworth mortgage in 1886. In January, 1874, when Mrs. Oane consented a mortgage to Leavenworth, she, as the vendor of Nicholls and of Bosworth, respectively, knew, and is conclusively presumed to have known, the ‘ ‘ Bosworth east boundary line,” as well as the “ Hamilton Oil Mill east line;” and Leavenworth,' who made the survey of the locus in quo in November, 1871, must also have known them when he accepted the mortgage of Mrs. Oane, in 1874.

Under these circumstances, it seems quite clear that when Leavenworth accepted .the mortgage of Mrs. Oane on “ all that portion of lot or block sixty-eight (68) north and east of Bosworth’s east boundary,” situated on the extreme northwestern part of that block, he did not acquire a mortgage on “that portion of block 68 adjoining and to the north and northeast of the land sold” by Oane and Bennett to Nicholls in 1848, situated on the extreme northeastern part of the block; and between which two properties the Hamilton Oil Mill property of 2£8 acres has intervened since 7848.

It appears that in 1886 the plaintiff instituted suit against Mrs. Cane in the foreclosure of the Leavenworth mortgage, of which he was the assignee, and became the adjudicatee of the hypothecated property, by the identical description given in the mortgage, thereby placing himself in Leavenworth’s place and stead, paying therefor §100.

It further appears that under expropriation proceedings in 1881, subsequent to the mortgage, though antecedent to this sale, the New Orleans Pacific Railway Company acquired a small portion of block 68, situated east and south of the Bosworth lot, for which they paid on the Leavenworth mortgáge §2750, same being equal to the capital of the mortgage debt and cost.

In 1871 Bosworth paid for the small lot he purchased §5300. Nicholls paid, in 1848, for the 2% acres he purchased of Oane and Bennett, §2625, and Hamilton paid, in 1868, for the same property §8000.

Is there any reason to suppose that the lot in question, adjoining as it does the Hamilton Oil Mill property on the east, of 1% acres, was not worth as much proportionately? Oan it be supposed that this valuable property, in addition to the residue of the property ad jacent to the Bosworth property, would have been adjudicated to the plaintiff for £100 in 1886? Such suppositions are repugnant to reason, in view of the fact that the testimony in this case shows that the property in controversy is alone worth £5000.

To fully disclose the plaintiff’s contention, we quote the following pertinent extracts from the brief of plaintiff’s counsel, at pp. 4 and 5, to wit:

“This is the description: The said Mrs. M. D. O. Oane declares that she does, by these presents, specially mortgage and hypothecate •unto and in favor of said F. P. Leavenworth, his heirs and assigns, the following described property, situated in the city of Shreveport, La., to wit: All of that portion of lot or block sixty-eight (68) north and east of Bosworth’s east boundary, now owned by the said Mrs. M. D. C. Oane.
“ It is admitted she owned the land in controversy at date of mortgage, and it is averred in answer she owned it in 1848. Now she mortgages all the land east and north of the Bosworth tract, and then adds, now owned by the said Mrs. M. D. O. Oane. That is, if she owned any more land in block or lot 68 she mortgaged that also, as we'will show further on.”

Counsel subsequently adds the following, viz.:

“ The extreme portion of said block 68, east of Bosworth’s east line, is the tract marked Jno. R. Jones, and is the tract in controversy. W. R. DeVoe, the city surveyor, made this map and says this tract is east of Bosworth’s tract and a portion of lot or block 68 of the city of Shreveport.”

We do not consider the language of the act of mortgage as hypothecating all the land east and north of the Bosworth tract, then owned by Mrs. Oane. Had she so intended, she would have employed different and more comprehensive language, better calculated to have conveyed such an intention. The statement of DeVoe, as a witness, is strictly true, but it does not throw any light on the question.

The learned judge, in his exceptionally able opinion, says:

“ If, in the mortgage to Leavenworth, and sale to Jones, the land had been merely described as all,.the land then owned by her (Mrs. Oane) in block 68, it would have been sufficient. No one could have been misled by such a description, and no difficulty could have been met in identifying the property.”

But lie fails to state that such was the case. He, inferentially, admits that such was not the case’; and that is the precise reason why we are of opinion that the Leavenworth mortgage did not cover all the land Mrs. Oane then owned in block 68.

For this reason we consider the judge’s conclusion, clearly, a non sequiter.

The learned judge cites the fact that the defendants remained inactive and silent while Jones’ sale was pending, as an evidence of their manifest acquiescence in his purchase. But the same question recurs; the purchase of what property? The argument is self-destructive.

He, also, cites the expropriation proceedings supra, and her acquiescence in the application of the proceeds as a credit on the Leavenworth mortgage debt, as an acquiescence in the existence of a mortgage on the property. But the question instantly arises: what property was mortgaged?

To each and all the questions, the answer is the same.

Reference is made, in the brief of the plaintiff’s counsel, to an averment made by Mrs. Oane in her answer in the expropriation suit, to strengthen the Leavenworth mortgage and Jones’ title; but that document forms no part of the evidence offered, was not referred to in the plaintiff’s petition, and is not mentioned in the judge’s reasons for judgment. To that suit, neither the plaintiff nor'the defendants were parties or privies. The defendants are Mrs. Oane’s grandchildren, but they are nob her heirs, because she is still living. It is not possible for us to give it any effect. The plaintiff must stand or fall upon the title he derived at sheriff’s sale.

The testimony shows that plaintiff has been, since his purchase in 1886, exercising some rights of ownership over the property, such as grading, and the like. His right to claim compensation therefor should be reserved; but the judgment in his favor must be reversed, and his injunction dissolved, with costs, without damages; the defendant’s right being, in this respect, reserved likewise.

It is, therefore, ordered and decreed that the judgment appealed from be and the same is amended and set aside; and it is now ordered and decreed that there be judgment dissolving plaintiff’s injunction at his cost, without damages, the right of defendants being reserved in this respect.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 306.
    S. Levy, Jr., vs. John Lake, Sheriff, et. al.
    The holder of a mortgage with the pact de non alienando who has proceeded against the mortgagee via ordinaria and recovered a judgment for his debt, with recognition of his mortgage, has the right to issue a ft. fa. on such judgment and to seize the mortgaged property regardless of alienations wh’ch are inoperative against such a mortgage, and without notice to, or process against, the third possessor, affirming Bienvenu vs. Ins. Co., 33 An. 218.
    APPEAL from the First District Court, Parish of Caddo. Taylor. J. „

      Land & Land for Plaintiff and Appellant.

      Wise & Herndon for Defendants and Appellees.
   The opinion of the court was delivered by

Fenner, J.

Cahn, who was a creditor of S. N. Ford on a debt secured by a special mortgage on property of Ford containing the fact de non alienando, proceeded via ordinaria against Ford to obtain judgment against him for the debt, together with the recognition and enforcement of his mortgage.

The suit resulted in the following judgment:

Wherefore, the law and the evidence being in favor of plaintiff, it is by reason thereof ordered, adjudged and decreed that plaintiff do have and recover of defendant, S. N. Ford, the sum of $3610.20, with 8 per cent, interest from March 1, 1888, and 5 per cent, thereon as attorney fees, and that plaintiff’s special mortgage be recognized on lots 5, 6, 7 and 8, of block 61, of the city of Shreveport.”

He proceeded to issue a writ of fi. fa. on this judgment, under which he seized the property on which his mortgage rested, which mortgage is expressly recognized by the judgment.

He is met by this injunction suit instituted by plaintiff, who alleges that he is the owner of the property under a judicial sale made in execution of a junior mortgage placed thereon by Ford, and contends that the property can not be seized under Oahn’s judgment against Ford, but that Cahn must resort to the hypothecary action and give him the notices required in such an action.

We think the contention is silenced by our decision in the case of Bienvenu vs. Insurance Company, 33 An. 218, where we said: “Appellant contends that Bienvenu, having taken a judgment against Lalaurié, and having issued a fi. fa. under his judgment, could not in law proceed against appellant’s property without process against him. It is not disputed that by proceeding via exeoutiva, the holder of a mortgage containing the pact de non alienando, can ignore any subsequent alienation of his mortgagor and follow the property in any hands without notice to the subsequent vendee or possessor. And it, therefore, appears that we are called upon to recognize a difference as to the mortgage rights of plaintiff between the two modes of proceeding. But such a difference does not exist either in reason, logic or law. The holder of a mortgage importing confession of judgment is authorized by law to proceed by executory process against his debtor’s property, and we cannot see how any of his mortgage rights can be restricted by a judgment of a competent, court condemning his debtor personally to pay the debt and recognizing his mortgage rights. We understand, on the contrary, that by such a judgment the rights of the creditor are enlarged instead of being curtailed or abridged.

“We are at a loss, therefore, to perceive any strength in the position that a creditor, proceeding via ordinaria, is debarred from following the property of his mortgagor in the hands of any vendee, and without process against such vendee.”

The foregoing decision covers this case like a blanket. It would indeed be a strange anomaly to hold that a creditor having a mortgage, with the non alienation clause evidenced only by an authentic act and only importing a confession of judgment for the debt claimed, can seize the mortgaged property in the hands of any third possessor without notice to, or process against, him; but that when he not only holds the same authentic evidence of the mortgage, but has had in addition his debt and mortgage ascertained and recognized by a final judgment of a competent court, he thereby forfeits his right to invoke the same remedy.

The fact that the decree did not specifically order the seizure and sale of the mortgaged property, is of no moment. The judgment recognizing the mortgage recognized all its stipulations and authorized its enforcement in the manner and to the extent which those stipulations, under the law, justified, including the right, under the non-alienation pact, to seize the mortgaged property regardless of any alienation, which was inoperative against such a mortgage, and without necessity of notice or process to or against any party but the mortgage debtor himself.

We notice the prayer for an amendment of the judgment by increasing the damages allowed, only to say that the allowance made by the District Judge is conservative, and sufficient to satisfy the requirements of justice.

Judgment affirmed.


author: Breaux, J.

text:
    No. 305.
    M. C. Bonner and M. A. Bonner vs. J. H. Beard.
    A defendant having availed himself of a written compromise, signed only by one of the parties to the suit, and having had the suit dismissed, in which certain rights were reserved to theparty who signed, is as bound as if ho had signed the writing.
    The transferrees’ eiaim being subject to any of the equities which the debtor may have against the transferror, the debtor is without interest to inquire into the transfer.
    The transferrors being estopped from claiming ownership of the claim transferred, the debtor can safely pay to the transferred, and is without right to have the transfer declared a nullity.
    The validity or consideration of the transfer, or the want of consideration, is of no concern to him, unless he can show injury.
    The claim is not a litigous right, although a suit may be necessary for its recovery.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Land & Land and Young & Thatcher for Plaintiffs and Appellants :
    One who, when sued, has availed himself of a written compromise signed only, plaintiff, by procuring a judgment thereon in his favor, is as much bound by the written compromise as if he had signed the same. 2II. 1002, No. I15; 2 An. 254 ; 32 An. 314; 11 M., Bradford vs. Brown; 211. 1011,Nos. 1, 2, 3, 4,5, 7, 9,10,11.
    The fact that a suit may be necessary to enforce a claim does not malte the claim ■•"is right. 2 An. 62 and 79; 3 An. 553; 6 An. 238; 12 An. 645; 13 An. 529 ; 30
    t or debt is valid, as against the debtor, even though not 11 of a notarial act. 12 M.’ (O. S.) 702 ; 8 R. 259; 5 E. 275; 2 n. 227. m not, when sued by the transferreo of that debt, inquire consideration of the transfer of the debt to the transferree by the transferror, unless he can show that he has been injured thereby. 5 R. 275; 10 An. 623; 35 An. 38á; 38 An. 101; 41 An. 1 An agreementto furnish a comfortable home includes maintenance as well as lodging. Am. and ling. Ene. of Law, Vol. 9, p. 420, and same, Vol. 3, p. 314.
    Interest should be allowed on all debts from the day they are due. C. C., Art. 1938.

      Alexander & Blanchard and Bell & Randolph for Defendants and Appellees:
    A price is essential to the contract of sale. C. 0.1764, 2439; II. D., p. 1326; Louque’s Digest, p. 625; 5 An. 433; 24 An. 85.
    A donation is void unless passed before a notary public and two witnesses. C. C 1536; II. D.,p. 448.
    The transferree of a litigous right can recover only the real prices of the transfer. C. C. 2652.
    Litigous rights are those which can not be exercised without undergoing a lawsuit. C. O. 3556, No. 18; 33 An. 1133; 13 An. 535.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs sue to recover the balance due on an annuity the defendant owed to his mother, at the rate of five hundred dollars per annum.

Mrs. M. O. Bonner sues to recover a fifth interest in this claim by right of inheritance from her mother, and her husband sues as transferree by purchase from three co-heirs of his wife.

The fifth heir is the defendant, who filed a general denial, and in addition specially denied that the alleged transferree is the owner of any part of the claim, and in the alternative alleges that, if he is the owner, he is the transferree of a litigious right.

The defendant further answers that should it be found that the agreement with his mother was as alleged by the plaintiffs, he should have credit for the amount of his mother’s board, medical attention and other services, as shown by his account.

In November, 1889, the mother, Mrs. Beaird, instituted suit against her son, J. H. Beaird, to recover a large amount due by him.

This suit was compromised, one of the conditions of the compromise, on the part of the mother, was that defendant should pay her the sum of $500 per annum during her life. The judgment, in the suit compromised, reserved to the plaintiff the right to demand the annuity of the defendant.

The right was recognized by the reservation, but was not made executory.

The defendant takes issue with plaintiffs, with reference to his agreement, and contends that the consideration was to support his mother as long as she continued to live with him, and should she reside elsewhere he was to pay the $500 a year to cover the costs of her maintenance. ■

The relinquishment made was not unqualified, but specially stipulated a price to be paid annually, as it reads in the reservation incorporated in the judgment. The understanding and agreement, such as now contended for by the defendant, is not sustained by any expression in the judgment.

The defendant procured a writing signed by his mother, agreeing to the dismissal of the suit; acknowledging payment of certain demands for the consideration of an annuity.

At his instance, the writing authorizing this judgment was filed in evidence on December 20, 1880, and judgment was entered in his favor.

He paid the fee of the attorney for his mother, and availed himself of the expressions in his favor.

The mother died March 28, 1889, and at the date of her death defendant owed thirty-six hundred and twenty-five dollars ($3625) ; less certain credit, one-fifth of this amount due belongs to the defendant as heir of his deceased mother.

The defendant questions the validity of the transfer of the claim and denies that one of the plaintiffs is the owner of the interest sued for by him.

The evidence discloses that there was a written transfer, by three of the heirs, made to one of the plaintiffs of all their title and interest to this claim; that the price was not fixed in dollars and cents.

There was no intention expressed to donate the claim and to formally place the transferee in charge of the claim as donee.

The transfer appears to have been absolute.

All the transferrers testify in the case and state that the claim was transferred.

Two of these witnesses state the consideration (although undefined as to the amount) as an indebtedness they desired to satisfy.

The objection is interposed that the transfer, being without price, was not a sale.

That as a donation it was null, as it was not passed before a notary and two witnesses, as required by Article 1536 of the R. O. O.

In business transactions no particular form and specific instrument are required in the transfer or assignment of a debt.

The assignment or transfer need not be in writing.

It has been decided that the judgment debtor will not be heard in charging the nullity and simulation of the transfer by the original creditor, unless he shows not only that there was fraud between the contracting parties, but that he was injured thereby.

Unless the debtor has equities which could be pleaded against the original creditor, he is without interest to inquire into the transfer.

There is an unbroken line of authorities maintaining these propositions. Gray vs. Trofton, 12 M. O. S. 703; Suc. of Delassige, 5 R. 529. Long vs. Klein, 35 An. 384; Stockmeyer vs. Oertling, 38 An. 101.

The transferee of the claim holds the rights of the transferrers, and is subject to the defence which the debtor may have against the latter.

In the case of Keane vs. Goldsmith, 14 An. 349, there was no written evidence of any transfer, and the parol testimony on this subject was somewhat contradictory as to the nature of the transfer. “A part of the testimony goes to show that the obligation was transferred upon conditions or events which have never happened.”

“ The transferrer’s knowledge and acquiescence precluded him from gainsaying the validity of plaintiff’s title, and a payment by the debtor to the transferee was held valid, and as an absolute protection against any pursuit upon the obligation in controversy.”

The witnesses testify that a transfer was made. They are estopped from denying the ownership, and the defendant can not be injured by the transfer.

We will not decide that the transfer was absolutely gratuitous, it not appearing that a donation was intended. All the parties to the transfer are estopped from denying the ownership.

The appellee contends that the demands of appellant, M. A. Bonner, must fail, for the reason that he is the transferee of a litigious right.

At the time the claim was transferred the probabilities were that the defendant would refuse to pay it, but it does not appear that the transferee was aware of an obstinate determination on the part of the debtor to deny the justice of the claim, and to compel the owner to bring suit for its recovery.

The authority of McDougall vs. Monlezun, 38 An. 223, a well considered decision on the subject, is not favorable to defendant’s position.

Counsel admit that their defence can not prevail, unless that decision be overruled.

Article 2653 R. C. C. in terms defines a litigious right.

As was held in the quoted case, we discover no reason to supple - ment this definition given in Article 2653 C. O. by reference to that contained in Article 3556 of R. C. C.

If we were to accept the last definition of litigous rights, that in Article 3556 C. C., “being those which can not be exercised without undergoing a law suit,” the defendant has not brought this claim within its meaning, for it is not proven that plaintiff was aware of his determination to undergo a law suit.

Defendant’s account contains various items for board, washing, servants’ hire, nursing, clothing and medical bills, from December 21, 1881 to March 28, 1889.

Of the amount, the learned judge of the district court has allowed $1934 as a credit.

If the credit is allowed at all by the court, the plaintiffs admit the correctness of this amount, except the allowance of twenty dollars per month for board and lodging.

The board, they contend, should hot be more than ten dollars per month and nothing for nursing.

Considering that the mother was sick a great part of the time, required care and attention, we readily accept the amount fixed as reasonable.

The defendant contends that a larger amount should be allowed; he says that he has furnished needed tonic and clothing.

The District Judge’s statement, with reference to said credits, impresses us asjbeing correct, and we therefore accept his figures and the correctness of his views respecting them, as expressed in his elaborate opinion.

The plaintiffs contend that there is error in allowing legal rate of interest from judicial demand; that it should be allowed in the respective amounts at the end of each year of the annuity.

There was mutual indebtedness, and not the least demand had been made prior to suit.

No interest is allowed on the -claim prior to judicial demand, and none to the defendant.

The total annuity is.................................................:...............................$2,685

Credits allowed........................!............................................................. 1,984

$1,691

It is therefore ordered, adjudged and decreed that the judgment of the court a qua, in favor of the plaintiff, Mary O. Bonner, wife of M. A.‘Bonner, for the sum of $838.20, with legal interest 'from judicial demand, be affirmed, and that the judgment appealed from be reversed in all other respects.

It is ordered, adjudged and decreed that plaintiff, M. A. Bonner, recover judgment against the defendant for the sum of §1014.60, with 5 per cent, interest from judicial demand, and that appellee pay the costs of appeal.


text:
    No. 311.
    Katz & Barnett vs. G. G. Gill et al.
    In a revocatory action, the test of jurisdiction is the amount claimed, and not the value of the property, the sale of which the plaintiff seeks to have revoked.
    In an action de simulation, the value of the property is the test of jurisdiction. The action being revocatory and the amount at issue less than two thousand dollars, the appeal is dismissed at appellants’ costs.
    APPEAL from the Third District Court, Parish of Claiborne. Barksdale, J.

      Young & Thatcher and J. E. Moore for Plaintiffs and Appellants.

      John Young, J. W. Halbert, John A. Richardson and J. R. Phipps for Defendants and Appellees.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs’ claim in this case does not exceed $2000.

Unless the' transactions assailed by him are pure simulations, it is manifest that the appellate jurisdiction is tested by the amount of plaintiffs’ demand, and not by the value of the property involved in the contract sought to be annulled.

Our opinion, in the case of Chaffe vs. Gill, just read,'shows that the contract assailed was not a mere simulation.

Ib follows that plaintiffs must seek appellate relief in another tribunal.

It is, therefore, ordered that the appeal herein be dismissed, without prejudice to plaintiffs’ right to appeal to the circuit court. Dismissed at appellants’ costs.


author: Fenner, J. Fenner, J.

text:
    No. 313.
    Flower & King vs. J. W. O’Bannon.
    1. When accounts between factor and planter have been repeatedly rendered to the latter, and have been received without objection and with petitions for indulgence and promises to pay, he can not afterwards question the correctness of the items thereof or of the charges of interest therein contained.
    *2. Prior at least to Act 78 of 1888, such accounts became stated accounts prescriptible only by ten years. The Act, of 1888 need not be construed in this case» because under no view could it operate the prescription pleaded.
    3. If the debtor do not impute his payments when made, the creditor may do so, and if he make such imputation and inform the debtor ■ thereof by account rendered which the debtor receives without objection, he can not afterwards question the imputation.
    4. Mortgages can not be extended by implication to secure any other obligation than that expressly mentioned. A mortgage given to secure “ $2500 for money advanced and acceptances made and to be made dw'ing the present yem% ” cannot be extended to cover advances made after the expiration of the year. To do so by any implication from the subsequent dealings between the parties would involve the creation of a mortgage by parol or implication.
    5. Where the balance due at a particular time in long accounts has never been struck and can not be ascertained without numerous and difficult calculations this court will not undertake such labor, but will remand the case for the purpose of ascertaining the amount.
    APPEAL from the Third District Court, Parish of Claiborne. BarksdaleJ.

      H. H. Hall and J. W. Holbert for Plaintiffs and Appellants:
    I. — PRESCRIPTION.
    ■“ A written acknowledgment is not necessary to constitute an account stated; an account rendered unless objected to within a reasonable time, is an account stated, compte cerréis, from its presumed approval.” 28 An. 605; 26 An. 208; 27 An 133; 20 An. 119; 19 An. 185; and authorities cited on page 208 of 26th An.
    II. — Interest and Commissions.
    “ Where mercantile accounts have been closed by rendition and acceptance without objection, the debtor can not thereafter object to charges of 8 percent, interest and to compounding interest by capitalization of succession of balances.” 39 An. 788.

      “Astipulation in a contract between a planter and a commission merchant, by which the former agrees to secure the latter in a certain amount in any event, is not illegal, and may, therefore, be enforced against the planter, notwithstanding he has failed to make a crop.” 23 An. 201; V. also 24 An. 159.
    III. — Imputation op Payments.
    Art. 2163. O. C. “ The debtor of several debts has a right to declare, when he makes a payment, what debt he means to discharge.”
    Art. 2165, C. C. “ When the debtor of several debts has accepted a receipt by which the creditor has imputed what he has received to one of the debts specially, the debtor can no longer require the imputation to be made to a differ ent debt, unless there has been fraud or surprise on the part of the creditor.”
    BO An. 1225. “ Payments made by a debtor without special instructions as to their imputation will be imputed in accordance with the tacit agreement of the parties as disclosed by their dealings and correspondence. A debtor who receives, without objection, an account current from his creditor which imputes payments made by him to the less onerous part of his debt, is held to ratify by his silence the imputation of payments made in the account.”
    “It is, therefore, false doctrine to say that, where a factor who has made advances to a planter, and who has a mortgage upon his plantation to secure an antecedent debt, receives the crop of the'planter, the proceeds of the crop must be imputed first to the payment of the mortgage debt, the residue going to discharge the debt incurred for supplies. The privilege vests upon the crop, and this privilege the crop must first discharge before any part of it may be applied to any other obligation.” Richardson vs. Sheriff, 26 An. 657, and also 43 An. p. l,
    2 An. 24, Bloodwortli vs. Jacobs: “The debtor has the right to make the imputation of any payment made by him. If he do not exercise this right the creditor may do so. When a debtor has accepted a receipt, in which a payment is imputed to a particular debt, it is irrevocable, unless in cases of surprise or fraud on the part of the creditor.” O. O. 2161.
    2 An. 810, Dunbar vs. Bullard: “Where a factor sends an account to his principal at the usual time, In which certain imputations are made by the former, and the latter affirms it, or receives and acquiesces in it, and no fraud or surprise is complained of, the imputation of payment must be considered as having been made by the authority of the principal, the ratification of the acts of the factor being tantamount to original imputation by the principal and relating back to time of the acts, which are the subject of ratification.”
    6 An. 774, Turen, Wilson & Co. vs. Lewis: “Where the plaintiff had carried on the business of making advances to a party on consignment, payments made to them in the course of that business will be imputed to the mercantile accounts and not to a mortgage note held by them on the party.”
    IV. — Tiie Mortgage.
    “ Mortgages, under the hypothecary system of Louisiana, may be given to secure debts having no legal existence at the date of the mortgage. It is not essential, in such a mortgage, even with respect to third persons, that it should ■ express on its face, that it was executed to secure future debts. It may be described as a security for existing debis, and yet used to protect those which in the contemplation of the parties, were to be created at a future time.” 7 An. 288, 307.

      ‘ * It is the eventual balance in the account current that is covered, not the isolated items as they fluctuate through its successive operations;’whilst running, it can not be arrested at a particular period, when, by an offset o£ debits and credits, they might be equally balanced, the account destroyed, ahd the mortgage extinguished; the account can not thus be disintegrated; an aggregate is to be formed of its component parts: until the balance be struck, the relation of debtor and creditor can not be determined; on that balance it is — with whoso ebb and tide it rises and falls — that the mortgage Anally fastens itself, and which it Anally secures.” Hen. Dig , p. 940, No. 17; 7 An. 808.

      J. E. Moore and J. A. Richardson for Defendant and Appellee:
    When there is a question of payment, the payment will be imputed to the debt bearing a mortgage. 15 An. 174. D. Digest, p. 517, III, “ of the imputation of payment.” '
    In order to interrupt prescription it must be acknowledged inwritvng. Acts 1888, No. 78, O. C. 8538.
    An acknowledgment must not only be in writing, but must be of the debt claimed. 86 An. 407.
   The opinion of the court was delivered by

Fenner, J.

The motion to dismiss has no merit and is overruled. Plaintiffs sue defendant for a balance of account and for the recog-, nition and enforcement of a mortgage which they claim to hold to secure the same. The questions involved logically divide themselves into two branches:

1. The amount of defendant’s indebtedness to plaintiffs.

2. The extent to which that indebtedness is secured by the mortgage.

I.

We think there can be no doubt that plaintiffs are entitled to recover a personal judgment against defendant for the full amount claimed. The dealings between the parties were in account current, running from March, 1887, to 1890.

Detailed statements of the account were repeatedly rendered to defendant, who received the same without objection, and made requests for indulgence, and repeated promises to pay. It is too late for him now to contest the correctness of the items of the account, which, however, we consider sufficiently proved and not discredited. His objections to the charge of 8 per cent, interest, and to compounding of interest, are defeated by our decision in'Allen vs. Nettles, 39 An. 788, where we said: “Defendant now seeks to overhaul these accounts from 1881, and claims, and was allowed, a deduction of §407.01 for overcharges of interest at 8 per cent., and from the compounding thereof by capitalizing, in the succeeding accounts, the balances from those preceding. We think this was error. So far as these matters are concerned, the defendant can not go beyond the accounts which have been rendered to, and accepted by, him without objection.”

The plea of prescription of three years against the earlier items of the account can not avail.

An account rendered and not objected to within a reasonable time, is an account stated and only prescribed by ten years. Darley vs. Lastrapes, 38 An. 605; Blanc vs. Scruggs, 26 An. 208, and other authorities therein referred to.

Such was the undoubted law, at least up to the adoption of Act 78 of 1888, which prescribes all accounts by three years. We need not presently construe this act, because it was only passed on July 12, 1888, after the accounts had been rendered and converted into stated accounts prescriptible by ten years. This suit was brought on May 2, 1890. On no basis of calculation of the prescriptive term could it have accrued prior to this suit.

II.

Defendant claims that the debt secured by the mortgage was entirely extinguished by payment, on the ground that all the remittances and the proceeds of cotton shipped by him should be imputed to the mortgage as the most onerous debt.

It is not pretended that defendant declared any special imputation when he made the payments.

On the other hand the accounts rendered by the plaintiffs show that they imputed the payments otherwise than to the mortgage indebtedness, the accounts stating the balance due as remaining secured by the mortgage.

The law on the subject is well stated in the following authorities cited in plaintiff’s brief:

Art. 2163, C. C. “The debtor of several debts has a right to declare, when he makes a payment, what debt he means to discharge.”

Art. 2165, O. O. “ When the debtor of several debts has accepted a receipt by which the creditor has imputed what he has received to one of the debts specially, the debtor can no longer require the imputation to be made to a different debt, unless there has been fraud or surprise on the part of the creditor.” 1

30 An. 1225. “Payments made by a debtor without special instructions as to their imputation will be imputed in accordance with the tacit agreement of the parties as disclosed by their dealings and correspondence. A debtor who receives, without objection, an account current from his creditor which imputes payments made by him to the less onerous part of his debt is held to ratify by his silence the imputation of payments made in the account.”

2 An. 24, Bloodworth vs. Jacobs: “The debtor has the right to make the 'imputation of any payment made by him. If he do not exercise this right the creditor may- do so. When a debtor has accepted a receipt, in which a payment is imputed to a particular debt, it is irrevocable, unless in cases of surprise or fraud on the part of the creditor. C. O. 2161.”

2 An. 810, Dunbar vs. Bullard: “ Where a factor sends an account to his principal at the usual time, in which certain imputations are made by the former, and the latter affirms it, or receives and acquiesces in it, and no fraud or surprise is complained of, the imputation of payment must be considered as having been made by the authority of the .principal, the ratification of the acts of the factor being tantamount to original imputation by the principal and relating back to the time of the acts, which are the subject of ratification.”

6 An. 774, Turen Wilson & Co. vs. Lewis: “ Where the plaintiff had carried on the business of making advances to a party on consignment, payments made to them in the course of that business will be imputed to the mercantile accounts and not to a mortgage note held by them on the party.”

Moreover, as appears from the mortgage, the advances were made to aid defendant in his planting operations and were specially secured by a privilege on his crops, and, as heretofore held, the proceeds of the crop were imputable to the privilege and not the mortgage.

“It is, therefore, false doctrine to say that, where a factor who has made advances to a planter, and who has a mortgage upon his plantation to secure an antecedent debt, receives the crop of the planter, the proceeds of the crop must be imputed first to the pay • ment of the mortgage debt, the residue going to discharge the debt incurred for supplies. The privilege vests upon the crop, and this privilege the crop must first discharge before any part of it may be applied to any other obligation.” Richardson vs. Sheriff, 26 An. 657, and also 48 An. p. 1.

We encounter a question of greater difficulty in determining what part of the debt is, or was ever, secured by the mortgage.

The mortgage was not given to secure advances generally, or to secure any resulting balance of account without limitation as to time. Its terms explicitly declare that it is given to secure the “ sum of $2500 for money advanced and acceptances made and to be made during the present year." Plaintiffs seem to consider that the “ present year ” means the year running from the date of the mortgage, but such is not a natural construction of the words in their ordinary use, which obviously suggests the year 1887; and this is confirmed by the fact that the notes given to represent the debt matured respectively on 1st December, 1887, and 1st January, 1888.

We can not see our way to holding that this mortgage was intended to secure, or did secure, any advances or acceptances not made during the year 1887, or any balance of account beyond that existing on the last day of the year.

We have held that “mortgages are so far stricti juris that they can not be extended, by implication, to secure any other obligation than that expressly mentioned.” Sehadel vs. St. Martin, 11 An. 175.

This principle is unquestionably sound. We should violate it grossly, if we acceded to the suggestion of plaintiffs’ counsel, that, by the dealings of the parties, the security of the mortgage has been extended to cover subsequent advances. We must look for the obligations of a mortgage in the act itself; to extend them beyond the plain terms of the act, on evidence such as that here suggested, would be to create a mortgage by parol or by implication, in violation of the express provision of the Oode, which declares: “ A conventional mortgage can only be contracted by an act passed in presence of a notary and two other witnesses, or by an act under private signature. No proof can be admitted of a verbal mortgage.”

Defendant never granted, • and plaintiffs do not hold, any mortgage to secure anything except “the sum of $2500 for money advanced and acceptances made, and to be made, during the present year.”

We have thus solved all the questions in the case except that of the amount due on the account of plaintiffs, on the 31st day of December, 1887, for which amount they are entitled to a recognition and enforcement of their mortgage, together with interest thereon, at the rate of 5 per cent, from the 31st day of December, 1887, until paid, and for the additional amount of 5 per cent, on the gross amount so due on the mortgage as attorneys’ fees.

No balance has ever been struck of the account of plaintiffs, as it stood on the 31st of December, and it requires an accountant to ascertain the exact balance then due, involving a calculation of interest on all the numerous items, labor which can not be thrown on this court.

We shall, therefore, be compelled to remand the ease on this point.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now adjudged and decreed that there be judgment in favor of plaintiffs and against the defendant, J. W. O’Bannon, for the sum of $2500.35, with interest at 5 per cent, per annum from April 6, 1890, and costs of suit; and it is further adjudged and decreed that plaintiffs’ mortgage herein sued on be recognized and enforced to the extent of the balance due by defendant, as shown by plaintiffs’ accounts rendered on the 81st day of December, 1887, together with 5 per cent, interest on said balance from said date, and 5 per cent, attorneys’ fees on the amount of principal and interest of said balance, when ascertained. And for the purpose of ascertaining the balance so due on December 31,1887, the case is remanded to the lower court, with instructions to ascertain the same and render judgment therefor in accordance with this , opinion and decree, defendant and appellee to pay costs of appeal.

On Application fob Rehearing.

Fenner, J.

Both parties claim amendment of the decree, and, in exact justice, each is entitled to some relief.

1. The defendant’s application claims that the accounts rendered by plaintiffs on April 5, 1889, and April 6, 1890, were not acknowledged. This is not correct as to the first point, no objection to which was urged until March, 1890, after it had been acquiesced in by prior correspondence. But it is correct as to the final account of 1890, and we think the charges, made therein, of 8 per cent, interest, and 2} í for advancing on balance of former account of April 5, 1889, should be reduced to 5 per cent, interest. This reduces the amount due on account sued on to $2382 61, and we shall amend the judgment accordingly. ‘ The commissions charged on cotton not shipped were proper, under the agreement and dealings of the parties, and other objections of defendant have no merit.

2. The application of plaintiffs demonstrates beyond question that the balance due on December 1, 1887, as shown by account rendered and acknowledged, considerably exceeded $2500, the amount of the mortgage stipulated. Therefore, the mortgage vested to the entire amount, and there was no necessity for remanding the case to ascertain a fact patent on the record.

It is, therefore, now ordered and decreed that our former decree herein be amended by reducing the principal of the judgment against defendant from $2500.35 to $2382.61; and further, by recognizing and enforcing the mortgage of plaintiff on the property described therein, for the full amount of this judgment, together with 5 per cent, attorneys’ fees on the principal and interest thereof, and by cancelling that part of the decree which remands the case. And that, as thus amended, the said decree be maintained.


author: Watkins, J.

text:
    No. 307.
    Simon Levy, Jr., vs. William Winter.
    1.' In case a single collateral is pledged, by two separate and distinct contracts, to two creditors, whose claims aggregate the value of the collateral, possession by one is a possession for the benefit of the other, and, in this respect, each is the agent of the other pro hac vice.

    2. Suit brought by one creditor against the common debtor, seeking the collection and application of the proceeds of the collateral to the extent of his demand, does not affect or impair the rights of the other.
    A PEAL from the First District Court, Parish of Oaddo. Taylor, J.

      Land & Land for Plaintiff and Appellant:
    1. The note being payable to bearer, the legal title was in the holder, and none other could sue upon it. 32 An. 583; Dan. Neg. Inst., Sec. 1192.
    2. The judgment in favor of Cahn, in the case reported in Í2 An. 965, is res adjudicate that he was the holder of the note, not only against the parties to that suit, but against all others claiming an interest therein. Succession of Gilmore, 12 An. 563.

      3. Tile note was merged in tlie judgment, and ceased to exist. 42 La. An. 152. The mortgage was indivisible, and could not bo enforced by Calm and afterward by Winter.
    4. It follows that the payments made to Winter, pendente lite, on his representations that 7te was the holder of the note and under Ms threats of foreclosing the mortgage, were made in error of fact and of law, and should be restored to plaintiff. C. C. 2301.

      Wise & Herndon for Defendant and Appellee.
   The opinion of the court was delivered by

Watkins, J.

This is a suit for the recovery and restitution of certain sums of money the plaintiff claims to have paid the defendant in error, under the circumstances related in his petition.

A certain promissory note for the sum of $7000, drawn to the order of, and indorsed by S. N. Ford, and payable at a future date, was by the maker and indorser delivered to one Adolph Cahn, as a collateral security for Ford’s indebtedness to Cahn of something more than $3500. Levy vs. Ford, 41 An. 873.

Subsequently Ford pledged this note — which was secured by special mortgage — to the present defendant, with Calm’s consent, thereby intending to secure with the surplus in excess of Cahn’s claim against Ford, certain indebtedness of W. P. Ford and S. N. Ford to him, and also the indorsement of S. N. Ford on the Bourkinrentnotesthat were antecedently pledged to said defendant. Levy vs. Ford, supra.

Cahn brought suit against Ford in the foreclosure of that mortgage and joined Winter as a co-defendant, and prayed for judgment, attributing the proceeds of sale to the payment of his debt by preference.

To this prayer the defendant .in that suit made no objection. Levy, the present plaintiff, intervened, and denying Cahn’s ownership of the mortgage collateral, alleged that he had an interest in„having it adjudged that Winter be preferred to Cahn in the distribution, and he prayed judgment to that effect. In this court it was held that the question of preference in payment was one purely personal to Cahn and Winter, and with which Levy had nothing to do; and the demands of Levy were rejected. Cahn vs. Ford, 42 An. 965.

During the pendency of this suit, the mortgaged property was sent to sale under a junior mortgage held by Levy, and it was purchased by him at the price of $12,500, of which he retained the sum of $7000 and upwards, to meet taxes and prior encumbrances. Out of this sum he paid Winter $1,547.75 on account of the indebtedness of W. P. and S. N. Ford, and the further sum of $1558.37, on account of S. N. Ford’s indorsement of the rent notes.

These are the sums plaintiff seeks to recover from Winter on the ground that they were paid in error of law and fact.

The contention of plaintiff’s counsel is, that because Winter surrendered to Cahn the custody and possession of the mortgage collateral for use in that suit, and whereby he was enabled to obtain judgment thereon, coupled with his failure to make any defense therein, he waived and lost whatever right or interest he had in the pledge of said note.

The plaintiff further urges the judgment and decree of this court in the aforesaid suit of Cahn vs. Ford, supra, as forming res adjudicata as to the defenses set up by Winter here.

These questions may be summarily disposed of. In Bevy vs. Ford,. supra, all of these questions were gone into and decided in respect to Winter; and those affecting Cahn were gone into and decided in Cahn vs. Ford, supra. The questions settled by those two decisions, in this respect were, that Ford first pledged the $7000 mortgage note-to Cahn to secure an indebtedness of about $3500; and subsequently, and with Oahn’s consent, this note was also pledged to Winter, for-the surplus above Cahn’s claim. This was most clearly and definitely understood and agreed upon by and between the three parties, Ford, Cahn and Winter. One note was, by two separate contracts, pledged! to two different parties. It being payable to bearer, no formal written act of pledge was necessary or made. It was, under the circumstances, a matter immaterial whether the physical possession and actual custody of the pledge was in Cahn or Winter. They had a perfect right to hold and use it indifferently. The fact that when Cahn sued Ford and Winter, the former called for, and the latter furnished, the note to be filed as the evidence of this right of Cahn, is of no consequence to Bevy. The suit of Cahn was founded on Ford’s indebtedness to him, and the collateral note was employed and used only as an adjunct and accessory thereof.

The judgment therein rendered did not extinguish the obligation of that note. Nothing but the seizure and sale of the mortgaged property, and the payment of the proceeds thereof to Cahn, did extinguish it, and only pro tanto.

Cahn and Winter had each a fixed interest in the collateral; and when, by means of judgment, seizure and sale, and payment to Cahn of his debt, with interest and cost, his claim was extinguished, the right of Winter to demand and receive the residue became absolute and determined. As the learned judge of the District Court aptly phrases it, possession by one was a possession for thé benefit of the other, and in this respect each was the agent of the other pro hae vice.”

.. We are of opinion that, by that suit, nor by its conduct or management, was any of the rights of Winter in any manner affected. No right of his was impaired by the judgment and decree thereon rendered; and same can not be given the effect of res adjudicata.

One pledgee may lawfully seize and sell effects pledged to another, without prejudice to the subordinate, or alternative, rights of the other on the pledge. Homer vs. Sheriff, 34 An. 389; Pickens vs. Wester, 31 An. 865.

Judgment affirmed.


text:
    No. 314.
    J. F. Pace vs. J. P. and P. A. Aubrey, J. C. Bennett vs. J. P. and P. A. Aubrey, Consolidated.
    In case reputable citizens are wantonly and illegally arrested and incarcerated in jail, on‘'trumped up” and purely gratuitous charges of grave crimes committed, and thereafter the prosecutor confesses, that his only purpose was to procure immunity from prosecution for his brother for the same offense, the prosecution is malicious and without probable cause, and damages should be awarded.

      Barksdale, J. PPEAL from the Third District Court, Parish of Claiborne.

      J. A. Richardson and J. E. Moore for Plaintiffs and Appellees.

      McClendon & Seals for Defendant and Appellants.
   The opinion of the court was delivered by

Watkins, J.

These consolidated suits are, each one respectively. against the defendants in solido for $5000 damages for a causeless and malicious prosecution of said plaintiffs, respectively, wholly without probable cause and with malice and ill will.

On these issues' of fact and law the causes were consolidated and put to a jury, who rendered a verdict of $500 in favor of each of the plaintiffs against J. P. Aubrey with cost. From that verdict, and the judgment thereon rendered that defendant has appealed — the other defendant having been discharged.

The following is a substantial synopsis of the principal facts to be considered:

On the 13th of October, 1890, the defendant, J. P. Aubrey, made a sworn complaint before a justice of the peace of the neighborhood against the two plaintiffs, charging them with having set fire to and burned the dwelling house of the plaintiff, J. F. Pace, on the 9th of October, previously.

On this charge the accused parties were arrested and incarcerated in jail, for a short while, pending the preliminary examination.

A hearing was had before the judge of the district court on the . 4th of November, following,- and thereat they were discharged. Subsequently the case was duly presented to the grand jury, and they ignored the complaint.

It appears that some time recently, previous to these occurrences, Lum Aubrey, a brother of J. P. Aubrey, had been on trial for the burning of his own storehouse and hotel to obtain the insurance; that he was acquitted of the charge, but another prosecution was pending against him connected therewith; and that -the plaintiffs, Pace and Bennett, had been prominent as witnesses against said'Lum Aubrey, while the defendant, J. P. Aubrey, had been a witness for his brother, aforesaid. The residence of Pace was consumed by fire soon after this trial was concluded, and public suspicion was directed against Lum Aubrey and a negro living with him. An affidavit was made against Lum Aubrey on the day after the fire, and he disappeared; and two days subsequently J. P. Aubrey made the stated complaint against the plaintiffs. J. P. Aubrey was, at the time, cognizant of the complaint against his brother, had inquired into the matter, and consulted with friends.

On the night plaintiff’s house was burned, a conversation between him and a friend was overheard in reference to the proceedings that were to be taken to relieve Lum Aubrey, and to suppress the warrant against him. In accordance therewith the friend and counsellor of the defendant, J. P. Aubrey, visited the village in the community with the purpose in view of effecting a compromise, and pursuant thereto intimated that the affidavits against the plaintiffs would be withdrawn.

An additional important and confirmatory fact, one worthy of due consideration, is that an apparently trustworthy person states that on the very date the plaintiffs were arrested and jailed, the defendant, J. P. Aubrey, told him “ he had sworn out [the] warrant against Pace and Bennett, but that he did not intend to have them arrested, and that he had sworn out the warrant to effect a compromise of the case against his brother.” That the defendant stated his object to be “to get up a compromise in his brother’s ease and get the people of Athens to withdraw the warrani; that he would leave the community ; he wante'd to be free [so] he could take his family with him.”

There is a great deal more of this kind of evidence in the record, and in our opinion, it makes out quite a clear case for damages. It is manifest that the charges brought against the two plaintiffs were “trumped up,” and purely gratuitous. That they were not seriously made, nor well grounded, is shown by the defendant J. P. Aubrey’s own statements. The prosecution of the plaintiffs was wholly and confessedly without probable cause. Weil vs. Israel, 42 An.; Savoie vs. Scanland, 43 An.

The appellees have requested no increase in the allowance awarded, and the appellant assigns no special ground for relief; and none is apparent. We think the jury were moderate in their appreciation of the damages sustained; but they followed precedents.

Judgment affirmed.


author: Breaux, J. Breaux, J.

text:
    No. 312.
    Chaffe, Powell & West vs. G. G. Gill et al.
    The property of the debtor being the common pledge of his creditors, every act done by a debtor, with intent of depriving his creditor of the eventual right he has upon the property of such debtor, is illegal. C. C. 1968.
    Where one purchases property from a debtor whom he knows is insolvent, with notice that his object in selling it was to deprive his creditors of their recourse upon it, and such purchase operates to their injury, the sale will be annulled.

      The purchaser in bad faith will not be entitled to a restitution of the consideration unless he proves that it inured to the benefit of the creditors, by adding to the amount applicable to the payment of their debts. O. C. 1977.
    PPEAL from the Third District Oourt, Parish of Claiborne. Barksdale, J.

      Boatner & Larrikin and McClendon & Seals for Plaintiffs and Appellants.

      John Young, J. W. Holbert, J. A. Richardson and J. R. Phipps for Defendants and Appellees.
   The opinion of the court was delivered by

Breaux, J.

Chaffe, Powell & West have brought this suit to recover $17,849.21 and interest. They allege that the defendant, George G. Gill, being in insolvent circumstances, with intent to defraud them, and other creditors, made fraudulent and simulated sales of all his tangible property.

That, under notarial act, he pretended to sell to George Gill, his nephew, his store and warehouse in the town of 'Homer, together with the stock of merchandise contained therein, and his open accounts for the year 1891, for the nominal price of $15,000 cash.

They pray that judgment be rendered against George G. Gill for the sum claimed; that the sale to George Gill be decreed fraudulent and simulated; the property described subjected to sale in satisfaction of the judgment prayed for; that there be personal judgment against George Gill for so much of the personal property sued for as he fails to surrender, in obedience to the judgment.

George G. Gill answered by a general denial of the facts alleged, and George Gill pleaded payment of the price in good faith, in due course of business.

The judge a quo maintained the sale of the movable property, and as to the immovable property, decreed its nullity, on plaintiffs’ return of $5000, with 5 per cent, per annum interest, since date of purchase.

He pronounced judgment against George G. Gill for the amount due plaintiffs.

The record discloses that on the 17th day of February, 1891, the defendant, George G. Gill, desired an extension of his indebtedness, and promised to secure it by a mortgage on Ms real estate in Claiborne parish. He represented himself to plaintiffs as worth $35,000 in excess of his liabilities.

He delivered to plaintiffs in New Orleans a written statement of the status of his affairs, in which he valued his assets in detail. The total of the statement was $81,000 assets and $46,000 liabilities.

He said he had undervalued, rather than overvalued, his assets, and that his brick store in Homer was worth more than $10,000, and that his stock oi merchandise would invoice considerably more than $50,000.

That his accounts for 1891 amounted to $4000, and were good for the face vajue.

He promised that immediately after his return home he would make a statement containing a description of all the property he had promised to mortgage.

He, therefore, applied for an additional amount, to pay certain bills he owed, and desired to pay before returning to his home. They were paid by plaintiffs, amounting to $2181.43, as part of the new accommodation for the season of 1891-92, the defendant having promised the mortgage, as before mentioned.

Instead of complying, on the 23d day of February, 1891, he sold to George Gill his brick storehouse and a number of town lots, a warehouse, and other immovable property, also his stock of goods, office furniture, also all the accounts On the books dated in 1891, described in the deed of sale. The whole property was sold in bloc for the price of $15,000, cash in hand paid.

On the 25th of February, 1891, he made a dation en paiement to his wife of an improved lot, in satisfaction of $2000, and within a very short time sold all his remaining immovable property. Ten thousand dollars due Chaffe & Powell were secured by a mortgage on certain lands in the parish of Richland.

The lands were the property, at the time the mortgage was, executed, of George Gill, who consented to this mortgage to secure an indebtedness of George G. Gill.

On the 24th day of February, 1891, these lands were sold by George Gill to George G. Gill for the‘price of $5000.

He, G. G. Gill, was insolvent when the sales were made, and they left him without any property subject to seizure.

Part of the $15,00.0, purchase price, was applied to the payment of certain debts for which George Gill, the purchaser, was security, and part, viz., $5000, to the payment of the Richland tract of land.

George Gill was a creditor at the time of George G. Gill in the sum of $2000. This amount does not figure in any of the contracts.

The representations made by the defendant just prior to the sale, and the sudden transfer of all his property, can lead only to the conclusion that his object was to escape the payment of his debts or to give an unfair preference to some of his creditors.

Having reached this conclusion, the question at once suggests itself, Was the vendee, George Gill, a party to the act in fraudem legis by George G. Gill, and was he aware of his insolvency?

We have no direct testimony on the subject.

The fact that they were on intimate terms; that the nephew was almost daily in the uncle’s office; that he knew of the arrangement to give plaintiff a mortgage; that he must have known that he was carrying a large indebtedness; that he was a creditor, and no mention was made of the claim at the time these sales were passed; that the sale to him was not in due course of business; that part of the price was applied to the payment of debts for which the vendee was security; that a large portion was applied to the payment of the Richland tract of land, and thereby returned into his possession shortly after this purchase; that two disinterested witnesses testify that these lands-are not worth the amount for which they are mortgaged ; that the contents of the commercial house were transferred on a memorandum estimate and not on án inventory, to be as exact as possible as to the value, — all point to an active participation on his part in a scheme to defeat certain, creditors.

Defendant’s witnesses on the subject testify that the intimacy did not extend to a knowledge of his uncle’s business; that he was informed that his assets were large in comparison to his liability.

The vendee, at the time of his purchase, surely knew that the vendor would be unable to pay plaintiffs the large indebtedness for which he had promised to mortgage the property.

He must have known that, if the property transferred to him was not worth more than the estimate he placed upon it, the remainder, comparatively of little value, added to that transferre,d to him, was considerably less than the amount due by his eo-defendant.

The evidence shows how much the whole property brought.

The total is less than $22,000.

He was informed by the vendor that his indebtedness amounted -to |47,000.

We find no relief for the purchaser in Article 1982 of the Oivil Code, as it is impossible legally to order a restitution to be made of any of the price paid to creditors..

At most the purchaser can be subrogated to whatever rights the ■creditors had against G. G. Gill.

All the property described in the deed of G. G. Gill, defendant, to ■his co-defendant, George Gill, before Drew Ferguson, clerk of court, ■on the 23d day of February, 1891, not included within the terms of the judgment appealed from, shall be included, or its value accounted for. 1 i

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by annulling and avoiding the said sale in toto; that allthe property described in said deed be subjected to ■sale in satisfaction of the judgment.

The said George Gill is subrogated to the rights the creditors paid toy him may have had against George G. Giíl, an<j the judgment appealed from is further amended by not allowing the restitution of the amount therein granted.

As amended, judgment affirmed, at appellee’s costs.

On Application for a Rehearing.

Breaux, J.

Plaintiffs in their application for a rehearing contend that in the event a revocatory action is sustained the purchaser should be placed in the same position as prior to the sale or transfer; that the attaching creditor should restore to the purchaser the amount thus expended by him and applied to the payment of G. G. Gill’s ■creditors.

The article quoted in support of these propositions had not escaped ■our attention, and would have been applied had it not been that the amount is limited to “so much as he shall prove has inured to the benefit of the creditors by adding to the amount of property applicable to the payment of the debt.” Art. 1982, R. O. O.

We did not find that any amount inured to the benefit of the ■creditor or creditors, that it is possible to give a superior or concurrent right to George Gill to recover the amount, of the purchase price G. G. Gill applied to the payment of his debts.

We are referred to the case of Barker and another vs. Phillips, 11 R. 197.

In that case the price was paid to release the two attachments, which, if not released, would have necessarily occasioned a diminution of so much of the property subsequently attached.

The sum in that case inured to the benefit of the creditors, by being added to the amount of the property applicable to the payment of the debts in which all the attachments issued.

In the present case no such condition presents itself.

The judgment revoking the sale precludes a claim on the part of a creditor which has not inured to the benefit of the creditors having precedence.

We have carefully examined the grounds of the application of plaintiffs, but find no merit in them.

Rehearing refused.


author: McEnery, J.

text:
    No. 310.
    The State ex rel. Charles Cannon vs. W. P. Hall, Judge.
    In the exercise of its supervisory jurisdiction over inferior tribunals, this court will not investigate the intrinsic merits of a controversy.
    APPEAL from the Tenth District Court, Parish of De Soto. Sail, J.

      William Goss for the Relator.
   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted for violating a labor contract, under Act 138 of 1890.

He moved to quash the indictment for several reasons. The motion was overruled. He now applies for a writ of prohibition to arrest further proceedings in the case. It is not denied that the court had jurisdiction of the ease. No irregularity is shown in the progress of the trial.

It is elementary that, in the exercise of its supervisory jurisdiction over inferior tribunals, the intrinsic merits of the case will not be investigated.

It is, therefore, ordered that the relief prayed for by relator be denied, and that the rule granted herein be discharged.


text:
    No. 317.
    Mary R. Taylor and Husband vs. Emma S. Marshall.
    1. The tutor’s bond was recorded. Hefiled an account of tutorship. In the judgment of homologation, the minor’s mortgage was not mentioned. It was not thereby affected, but retains its force and effect. ■
    2. The testimony of witnesses — who testify as experts — being contradictory, should be weighed, and the best supported inference adopted.
    3. In pro-rating values between the makers of improvements on lands and claimants of a mortgage thereon, the respective values of the land and tlje Improvements are ascertained.
    The seizing creditor receives the value which the land bears relatively to the amount of the sale, and the defendant the value of the improvements considered, in the same way.
    APPEAL from the Second District Court, Parish of Bossier. Boone, J.

      J. It. Plvipps, J. W. Lowry and John Young for Plaintiff and Appellant.

      J. A. Snider and Joannes Smith for Defendant and Appellee.
   The opinion of the court was delivered by

Breaux, J.

This is an hypothecary action to enforce a mortgage-against certain lands owned by the defendant.

Defendant filed an exception in which it is alleged that, in the-judgment plaintiff seeks to enforce, her mortgage is not recognized or mentioned.

That she has by a casus omissus, or by intendment, waived or renounced her mortgage.

The plaintiff was the ward of J. N. Platt.

At her majority he filed an account of tutorship, showing an indebtedness of 13781.10.

The account was homologated in the usual form, without special reference to the mortgage, by which this amount is secured as to Repayment. '

The tutor’s bond has been duly recorded, and is in evidence.

The nature of the debt secures the mortgage. It exists without, the necessity of its mention in the judgment homologating the-tutor’s account.

The mortgage claimed is extant, and beaTS on defendant’s property.

The defendant pleads in reconvention for the value of her improvements.

They are alleged to be valuable and to have greatly improved the place.

Judgment was rendered in favor of the plaintiff for the sum •claimed, and recognizing her mortgage. To satisfy the amount decided to be due, of the demand in reconvention, it was ordered that plaintiff be allowed one-fourth of the entire proceeds of the sale, not to exceed the amount of her claim, and the defendant the remaining three-fourths of such proceeds.

The plaintiff and the defendant appeal from the judgment.

A number of witnesses have testified to establish the value of the place on which the mortgage bears. The difference in the estimates is great, and vary from small amounts to considerable sums.

To commence ab origine with questions of value, we note that on the 13th day of September, 1881, J. N. Pratt, the mortgage debtor, sold this land for $1000.

It was sold for $3000, in May, 1882; in 1885, for $4960; in 1886, for $6000; in 1887, February, for $8000; in 1887, July, it was sold to •the defendant for $8600.

The foregoing prices can be safely consulted. As the enhancement in the value of the land is not entirely owing to the improvements, but in part to the increase in the value of the land, we will •consult the testimony of the witnesses to ascertain the value of each.

They testify that the improvements were comparatively of little value, when the place was owned by Platt, the judgment debtor.

One of the witnesses for the plaintiff testifies that they were worth • $2.00 an acre; that is, improved the value of the place in that .amount per acre.

This is the highest estimate.

The witnesses for the defendant fix it at considerably less, when the place was owned by Platt.

All the witnesses differ materially about the number of acres of .land cleared since the Platt sale.

Those for the defendant state a larger number than those for the plaintiff.

We conclude that more than two hundred and forty acres were cleared since the sale.

The expense of cutting down trees and clearing the land for cultivation is estimated by different witnesses. Some have fixed the amount at $5 an acre, others at $7, others at $15 and $17.

There is as much divergence in the estimate of the value of the building, improvements and the machinery. Some of the witnesses have fixed it at more than $.3500, others-at- considerably less.

In line with these estimates the witnesses have testified as to a pro rata value of the improvements and of the land.

The value of the land unimproved was estimated at $5 by five of the witnesses, and at $25 improved..

Several of the witnesses have testified to less.

Allowing for the increase in the value of the lands, owing to other causes than the improvements, we conclude that the judgment of the District Court does substantial justice in the estimate adopted.

We do not understand that the principle of pro-rating values between the makers of improvements on lands and claimants of mortgages thereon, both in good faith, is seriously opposed.

Article 3407 of the C. C. is clear upon the subject, and leaves no-room for construction.

See also Oxford vs. Bowan, 43 An.

Judgment affirmed at appellant and appellee’s costs, jointly.