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

text:
    No. 5497.
    Edward Conery vs. Rotchford, Brown & Co.
    No valid judgment can be rendered against any oí the individual members ol a former commercial partnership, who have not been cited, on the confession of an agent of the former firm, made after the dissolution of the firm. Such a judgment is null and void.
    A judgment absolutely null, may be attacked .collaterally, in any form of proceeding, by any one having the least interest to have the nullity pronounced.
    In a suit to revive a judgment the defendant may allege and prove any fact showing the absolute nullity of the judgment. A judgment absolutely null and void, can not be revived. It is essential to the revival of a judgment that there should be a valid and subsisting one, which is a fact for the plaintiff to establish.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      John M. Bonner for plaintiff and appellant.

      Merrick, Race & Foster for defendants.
   The opinion of the court on the original hearing was delivered by E&an, J., and on the rehearing by DeBlanc, J.

Egan, J.

This is a proceeding under article 2813 of the R. S. of 1870, and article 3547 of the Rev. C. C., to revive a judgment of the Second District Court of Orleans, alleged to have been rendered in December, 1863. The statute provides “ that any party interested in any judgment may have the same revived at any time before it is prescribed by having a citation issued according to law to the defendant, or his representative, from the court which rendered the judgment, unless defendant or his represeptatives show good cause icliy the judgment should not he revived.” The cause shown by the defendants in this case is that the judgment is absolutely null by reason of the defendants never having been cited, and because the firm of Rotchford, Brown & Co. was dissolved by the death of Johnson, one of its members, in July, 1863, several months before the filing of suit or rendition of judgment, which was rendered solely upon the confession of one R. A. Bourk, claiming to be the agent of the firm of Rotchford, Brown & Co.

The evidence discloses the death of Johnson at the date named in the answer; that there was no citation to the firm nor to any of the individual members; and that the judgment was based solely upon the written confession of Bourk, who claimed to act under and by virtue of a power of attorney given in 1858, by the firm of Botchford, Brown & Co., and not by the individual members. The original petition did not pray for citation to a judgment against the firm, but only to and against the individual members, none of whom, as we have seen, were cited, and one of whom was at the time dead. Bourk answered for “ the defendants,” confessing and consenting to judgment as prayed for, which was accordingly entered against the individual members of the iirm in solido, and not against the firm. The power of attorney to Bourk was from the firm eo nomine; was signed by but one member of the firm for it, and contained no stipulation or authorization for any purpose from the individual members of the firm to act for or represent them in any manner whatever, and no judgment was prayed for or rendered against the juridical being, the partnership, which alone he was •ever authorized to represent for any purpose. It is therefore not necessary to inquire, under this state of facts, whether, had such judgment been rendered after the dissolution of the firm by the death of Johnson, without the knowledge of Bourk,- its mandatory, it would have effect, nor whether he had, under the mandate, power to confess judgment. It may, however, not be out of place to remark that it was expressly held by this court in Brashear vs. Dwight, 2 A. 404, that the presumed continued existence of the firm for the purpose of its obligation, by reason of dealings without notice of dissolution, which can only be maintained upon the doctrine of the united agency of the partners, is very distinct from “ the manner of bringing the partners of a dissolved partnership into court.” In that case the plaintiff, one of the members of a commercial firm, enjoined the execution of a judgment against the firm, upon the ground that he had never been cited, and had no knowledge of the suit until the seizure of his property by the sheriff, and that the citation was served upon one of his partners after the dissolution; and the court held that he was entitled to personal citation, and that the judgment could not be executed against him. It needs no citation of authority for the proposition that a partnership is an “ ideal ” or juridical “ being,” as perfectly distinct from the individuals who compose it as one individual person is from another, as was said in Tury vs. Harris, 10 A. 625; and that a power of attorney or mandate from the partnership gives no' power to represent the partners as individuals. This was expressly ruled iu regard to the same power of attorney in Johnson vs. Brown, 18 A. 337, in which case one of the present defendants was sole defendant. There was then no citation to or representation of any of the defendants in the original suit in which the judgment was rendered, the revival of which is here sought.

“ Citation being the essential ground of all civil actions in ordinary proceedings, the neglect of that formality annuls radically all proceedings had, unless the defendant have voluntarily appeared to the suit and answered the demand.” O. P. article 206. The nullity may be alleged even collaterally in any form of proceeding, by any one having the least interest to have the nullity pronounced. 1 N. S. 9; 21 A. 26; Williams vs. Clark, 11 A. 761; 24 A. 252; 8 N. S. 145; 6 L. R. 577.

In order to constitute a suit or action there must be at least two parties present or represented. C. P. article 99; 6 N. S. 517; 4 L. 158; 5 L. 424; 17 L. 479.

No valid judgment can be rendered against a party where there is no suit, nor where he has not been legally cited. 17 A. 91; 21 A. 613; same 630; Michie vs. Brown & Co. ct al., 20 A. 75, a case where citation was served at the place of business of the firm after its dissolution and without notice of dissolution upon an agent of one of the partners, who was also chief clerk of the firm, and the court held that “ the citation was insufficient and the judgment without effect.”

It is elementary that suit can not be brought against a dead man, and our own Code of Practice points out the mode of proceeding where one dies against whom there is a cause of action., Article 120. It is, however, urged by counsel that article 2813 of the R. S. and article 3547 of the R. C. C. only fix the prescription of judgments, and the mode of arresting that prescription; and that under this proceeding to revive a judgment, it can not be annulled or pronounced null. That is very true as to all relative nullities, but not as to absolute nullities, such as the want of citation, without which there was and could be neither suit nor valid judgment, as we have. seen. It is essential to the revival of a judgment that there should be a subsisting one. That the party seeking revival has such valid judgment is an essential allegation and fact to be proven in a proceeding to revive it; and if it be essential both to allege and prove its valid existence, that fact may be disproved by the defendant, and certainly constitutes not only “ good cause ” against the revival, in the language of the statute, but the best possible cause (i. e.)that what has the form of and appears to be a valid and subsisting judgment is not so either in fact or law.

It would indeed be a vain thing to vex the courts with inquiry and the defendant with citation if he were not allowed to contest the very existence of the thing sought to be revived, and equally vain would be-the revival if, in fact, the judgment had no real existence, or force in law as such. Courts of justice deal with the substance and not the' shadow of causes. It can not be for a moment doubted that a party condemned without citation or hearing could sue to have that fact judicially determined, and yet more evidently that he may use the same fact as an exception to preserve his' rights if sued. C. P. article 20. This he may do at any time the judgment so obtained is sought to be enforced against him, for any purpose or in any manner; and even could it be held that he must bring such suit within a fixed time, as it can not by the express terms of article 612 C. P. Nowhere and to no class of cases is more applicable the maxim: “ Quce temporalia sunt ad agendum perpetua sunt ad excipiendum.” We have been referred by plaintiff’s counsel to the cases af Drogue and Moreau, 23 A. 173; Carondelet Canal Navigation Company vs. De St. Romes, 23 A. 437; and McStea vs. Rotchford, Brown & Co., decided by the present court, and reported in 29 A. p. 69. These are all suits to revive judgments. The first case decides nothing except that in a proceeding to revive a judgment the question whether it was rendered upon sufficient evidence can not be inquired into. The case was twice before our predecessors, and is first reported in 21 A. p. 639, from which it appears that it was remanded because the record did not contain satisfactory evidence of the existence of the judgment and of its ownership by the plaintiff, it appearing that the judgment was rendered by default and no citation appeared in the record as originally sent up; a fact which the court considered, as we do in the present case, essential to the existence of the judgment. The present court also held in a case not reported, decided at Monroe in July last,, that in a proceeding to revive the evidence upon which the judgment was rendered, the basis of the claim sued on could not be inquired into. In the St. Romes case the defendant averred that she was not legally cited and had not signed nor authorized the signing of the obligation sued on. The court said: “The record shows she was legally cited,”’ and that the other ground of defense should have been established before judgment, and was not a defense in such action. The 29th A. case of McStea vs. Rotcliford, Brown & Co. is the only one which seems to support the views of the plaintiff’s counsel. An evident error crept into the opinion in that case in regard to the decision in the St. Romes case, in which as we have seen the court did not, as stated in the opinion in the McStea case, “ reject ” the plea of want of citation, but on the contrary said that “ the record disproved the truth of the plea.” There was at the time considerable hesitation on the part of some members of the court as to the decision itself, and it will be observed that it was said '‘perhaps a total and entire want of citation to any one might be pleaded,” and the effect of the decision was carefully guarded and confined to the arresting of prescription, without in any manner validating-the judgment if affected with nullities. Further reflection and examination of authority in the present case leave upon our minds no room for ' doubt upon the subject. The want of citation in the original suit affects the judgment with such absolute nullity that it may be pleaded even in an action to revive under the statute for the arresting of prescription, and constitutes good cause why no judgment of revival should be rendered.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is affirmed with costs of both courts.

Manning, C. J.

I adhere to the doctrine of the previous cases, and enforced with some elaboration in McStea v. Rotchford, 29 Annual, 69, and re-affirmed in Burnside v. Rotchford and Pace v. Marbury, both decided last year and unreported.

There can be but one issue in a suit to revive a judgment, and that is whether it exists — not whether it ought to oxist, or ought ever to have been rendered, but simply and solely whether such a judicial act was ever done as rendering it. And this is obvious to my mind when you consider how and why a suit for revival is instituted. A suit of that kind was unknown to our law until a few years ago. The first one ever instituted was probably in 1861, and they became necessary because an Act of 1853 had taken judgments out of the category of imprescriptible things: That law made a judgment prescriptible by the lapse of ten years, and if it had stopped there, -there would have been no means of averting prescription, for whilé the law has always declared that notes and mortgages etc shall be prescribed, it has in the same breath told you how to prevent its acquisition. Therefore because the act of 1853 made a judgment prescriptible, it had to provide the means of averting prescription, and that is all it does. That is its sole object, and its title is terse and significant — ‘ an act relative to the prescription of judgments.’ Acts 1853, 250.

When then you admit any other issue in a suit for the revival of a judgment than judgment vel non, you apply the statute to other purposes than those it was designed for. If you permit a party to plead causes of nullity you virtually construe it as an amendment to art. 556 of the Code of Practice, which has for its object the designation of the modes of annulling a judgment.

I must also maintain the correctness of the interpretation put upon the St. Romes case in the opinion read by me in McStea v. Rotchford, and I do this with great deference to the contrary views just expressed by my colleagues. The enunciation there made that “the object of this proceeding is merely to keep in force the judgment rendered in 1859 by interrupting prescription,” contains the gist of the controversy, and in my judgment is the true exposition of the law, and it has been so held in every case by this court until the present one.

If there had never been any prescription applied to judgments, there would never have been any occasion to revive them. The suit to revive is merely the means, and the sole means, to prevent prescription, and the only inquiry in such suit is, was such judgment ever rendered ? A judgment of revival does nothing more than decree that such judgment had been theretofore rendered, and does not preclude any attack upon it from any quarter for any cause save only prescription, which the statute of 1853 was specially designed to save.

On Reheabing.

DeBlanc, J.

In 1863, on the 7th of December, a judgment rendered two days before in favor of Conery and against the defendants, was signed by the Judge of the second district Court.

In 1873, on the 30th of January, Conery instituted an action, for the use of Charles Gallagher, to have.said judgment revived. This action is brought against the succession of Joseph H. Johnston, Philip Rotchford, an absentee, and Shepherd Brown, a resident of the City, who heretofore composed the commercial firm of Rotchford, Brown & Co.

The granting of plaintiffs application is opposed, on the grounds:

1. That the judgment sought to be revived was rendered without citation to the interested parties, on the confession of one Bourk, then pretending to be, but who was not the agent of said firm.

2. That — to the knowledge of Bourk, Conery and Gallagher — -that judgment was rendered after the dissolution of said firm by the withdrawal of Rotchford and the death of Johnston.

The time when Rotchford withdrew from the partnership was not •shown on the trial, but it was shown that Joseph H. Johnston died on the 31st of July 1863, four months and five days before the rendition of the judgment which plaintiff is attempting to revive.

On the 15th of March 1870, Charles Gallagher addressed-a note to Bourk, the agent of said firm, to enquire whether ,he knew, when he was cited in that capacity, in December 1863, that Joseph H. Johnston was dead. Bourk answered in writing that he did not. The letter and the answer were introduced in evidence, without objection on defendant’s part.

On the trial, plaintiff’s counsel holding a document, said to Bourk, who was then on the stand as a witness: “Look at this, Mr. Bourk.” The witness-examined the document, did not swear that his signature was attached to it, or that he had ever seen it; and — without any further examination tending to identify the paper which he then held, plaintiffs counsel offered it in evidence as “ iwiiten memorandum marked A.” That memorandum is Gallagher’s letter to Bourk and the latter’s answer to it.

The agent’s incomplete declaration on this important point leaves the impression that he knew, when he confessed the judgment, that Johnston was dead, the partnership dissolved, his mandate at an end. If so, the judgment sought to be revived has never had any legal existence: but plaintiff’s and defendant’s failure to either verify or contradict the contents of the memorandum now before us, compels us to remand this case.

If, by the parties’ course, we were not precluded from referring to a petition copied in the transcript and which forms the very basis of Conery’s judgment, we would certainly have adhered to our first decision: but our attention has been tardily called to the fact that — instead of relying, as they should have done, on the pleadings filed in Conery’s suit — the parties have selected and placed before us but fractions of the same, and — in so doing — removed from the range of our consideration the petition alluded to.

We deem it proper to state that — in passing on an application to revive a judgment, the Court — unless restricted by the parties’ course and by an exclusive statement of facts, has the right to and should consider — whether actually introduced or not — every pleading filed in the suit in which the judgment was obtained.

It is therefore ordered and adjudged that our former decree is set aside, the judgment appealed from avoided and reversed, and this case remanded to the lower Court to be proceeded in according to law; the costs of the appeal to be paid by plaintiff.

On Rehearing.

Manning, C. J.

I am constrained to dissent from this judgment also, because I think the plaintiff is entitled to a revival of the original judgment as prayed, and as this case overturns our jurisprudence on this question, I will once for all give the reasons for my construction of the Act of 1853.

I base my construction of it both upon reason and authority.

Upon reason, by ascertaining its true intent and meaning in that way, pointed out by the Great Commentator as one of the surest and safest means of learning it. “ The most universal and effectual way of discovering the true meaning of a law, says Sir Wm. Blackstone, when the words are dubious, is by considering the reason and spirit of it, or . the cause which moved the legislator to enact it, for when this reason ceases, the law itself ought likewise to cease with it.” 1 Com. 61. And in another place he says,.it is useful and often necessary, in order to arrive at the true meaning of a new law, to ascertain what was the defect in the old law that had to be remedied, and to remedy which the new laW was made. And again, a non-enacting part of a law, as the preamble, is often called in to help the construction of an act of parliament.

How much more shall the title of a law be called in to help the construction of one of our statutes, when by express constitutional command, every law can embrace but one object, and that object must be expressed in its title. . Const. 1852 art. 115. That was the organic law in .■force when in 1853, the legislature passed ‘an Act relative to the prescription of judgments.’ Acts, p. 250.

The old law was, that judgments were imprescriptible, or to speak more accurately, no fixed time had been set for the prescription of a judgment eo nomine. The object of the new law was to fix a time — to establish with certainty a period, the lapse of which would affect judgments as notes, or other obligations 'were affected by the lapse of time— and thus to introduce a new rule or principle into our law quoad judgments. If it had then been contended, under the Act, that one might attack a judgment because of alleged nullities — that you might inquire whether the judgment ought to have been rendered — that you might shew a defective citation, or an illegal consideration for the contract which the judgment gives effect to, or that a document, such as a power .of attorney, in evidence on -the trial when that judgment was rendered, was void — or that any other evidence then used was inadmissible, or that all of it together was insufficient — if any attempt to annul the oi’iginal judgment for any of these, or other like reasons, had been made, the answer would have been that the object of the Act is not the annulment of judgments — that it can not embrace more than one object, which is the prescription of judgments, and that object is expressed in its title, and I can not perceive why this objection, which would have been unanswerable then, has lost, its force from the mere incorporation of this Act in the Revised Statutes without its title, as are all other statutes.

If the intent of the legislator had been to provide by this act a new mode of annulling judgments, or a new mode of revising or reversing them, its title would have been, ‘an act relative to the prescription of judgments, and to the manner in which they may be annulled, and to -provide a mode of reversing them otherwise than by appeal.’ The Code of Practice had definitively set out the four modes by which judgments could be revised, set aside or reversed, viz, by a new trial, by an appeal, by an action of nullity, and by rescission, art. 556. And it had also defined the causes for which this third mode might be employed, arts. 605 — 7. But by construing this act of 1853, so as to let in by way of cause shewn to a demand for revivor, the defences that either were not made, or were unsuccessfully made, to the original action, is not only to construe it as providing a new and additional mode of annulling a judgment, but also as providing and authorizing a method of reversing a judgment, which, until this case, was supposed could only be done on an appeal.

What then is the justification of this construction? My brethren rest it upon the clause — unless the defendant shew good cause why the judgment should not be revived. What is the use of enacting that a judgment may be revived unless good cause be shewn why it should not be, if in the proceeding for its revival you are not permitted to shew all good causes ?

The first answer to this question, which contains as in a nutshell the whole argument for the construction of the statute now adopted, is that already mentioned, viz, that you must construe the statute by reference to the state of the law existing at, and the circumstances surrounding and attending its passage, and when these so manifestly and unerringly point to a particular and special thing as the sole object of the legislature in its enactment, you can not, consistently with the undisputed rules of construction, apply it to other objects. And the force of this consideration is redoubled, and the point or idea, or principle stands out in bolder relief when it is perceived that disregard of it revolutionizes the whole theory of legal construction, and displaces the order and regularity and gradation of judicial proceedings, for when was it ever broached before, that where a party refused to take the next step after a judgment had wrongfully condemned him, viz to appeal for its reversal, after a new trial had been denied him; and when he neglected or abandoned his remedy by an action of nullity, that he could, under cover of a statute made for another purpose, accomplish what until then could be accomplished only by an appeal or by an action of nullity.

But another answer is, that analogy and a comparison of other systems of law in the parts corresponding to this novel feature in our own, shew us what this act means.

At common law, writs of execution must be sued out within a year and a day after the judgment is entered, otherwise the court concludes prima facie that the judgment is satisfied and extinct. But, as provided by statute 13 Edw. 1. c. 45, a writ of scire facias will be granted after that time has passed, “ for the defendant to shew cause why the judgment should not be revived.” I have quoted the exact language.of Blaekstone in this last sentence, 3 Com. 421, and the reproduction of these identical words in our statute of 1853, is not an accidental circumstance. The process mentioned in the statute equally well displays the kinship of our act. It would seem that it did not even contemplate a suit, but only a ‘citation’ to the party to shew cause. These indicia shew that, when the legislature had in view the application to judgments in our system of those rules, which had obtained elsewhere, and for the first time created for them a presumption of payment which until then it ignored, and was preparing a law to give effect to this presumption, that it sought guidance from the parallel provision of a system of law, in use in the adjoining and other States, and adopted the same, or a kindred, proceeding here to effect what had been long effected there, and no one will argue that because it did not call it a scire facias, therefore it is not substantially the same thing. The whole system of recording evidences of title to property is of American origin, and in most of the States it is called ‘ registering,’ and the officer who performs that duty is called a ‘Register,’ but it would scarcely be argued that because we call him ‘ Recorder,’ and his work ‘ recording,’ that there is any difference in the nature of the functions.

I have said that I based my construction of this Act upon authority as well as reason.

1863 is the first and earliest date when any judgment could be prescribed in this State, and the first suits for revival were therefore commenced a year or two before, and hence we find no decisions in this State upon the statute we are considering, until the resumption of this court’s business after the close of the war. In all of the decisions, without exception, until the present case, the doctrine has been held and maintained that the sole object of the statute of 1853 was to apply prescription to judgments, and to specify and formulate the manner of averting it. We held in an unreported case at Monroe last summer, where the defendant attempted to shew for cause why a judgment should not be revived, that the consideration of the note for which it was rendered was illegal, that he could not be permitted to go into that defence, and this was in harmony with McStea v. Rotchford, 29 Annual, 69. which was itself but a reiteration of the principle previously adjudicated, but perhaps not till then so sharply defined. Since the opinion in this case was read on the first hearing, another case presented the question of revival of a judgment which had been rendered against one defendant upon a citation addressed to, and served upon another defendant, and the majority of the court held this want of citation could be inquired into in the suit for revival. These two cases are the oply departure from the rule established by all the previous decisions.

I think the solitary question that a court can consider in an action of revivor under this statute, is — was the judgment rendered, the revival of which is sought; and where the original plaintiff brings the action for revival, the only evidence necessary to entitle him to a judgment is a certified copy of the original judgment rendered in his favor.

If that judgment ought never to have been rendered, — if it contains extrinsic or intrinsic vices which destroy its legal existence — the party, against whom it is rendered, may have it reversed on appeal, or may annul it by an action, and to these methods alone he is remitted for relief. He can not avail himself of this peculiar proceeding, provided by a special statute for a special purpose, to accomplish what other and general laws have afforded him ample means and opportunity to do.


source: Caselaw Access Project

author: Egan, J.

license: Public Domain

text:
    No. 7068.
    Succession of Walter O. Winn.
    When it appears that neithei’ creditors, nor other parties in interest have been cited to oppose a tablean of debts filed by an executor, and that there are no funds to distribute, and no funds had been collected or disbursed, the homologation of such a tableau is not binding on the creditors, or heirs, and they can not be called in by more publication to establish or oppose it.
    A succession can not be bound by a tableau filed by the attorney at law of the executrix, who is absent from the State, and when it appears that the attorney was not specially authorized to file the tableau, and that the executrix was ignorant of whai was put down on it.
    It is only a creditor who has obtained a legal acknowledgment of, or a judgment recognizing his debt, that is entitled to provoke a sale of succession property to pay his debt.
    ^PPEAL from the Parish Court of Rapides parish. Clements, J.

      James G. White, Michael By an, and Bóbert P. Hunter for appellees.

      R. A. Hunter and B. J. Bowman for executrix appellant.
   The opinion of the court was delivered by

Egan, J.

The plaintiffs in the rules claim to be creditors of the succession: Ryan & White for $2000 for services as attorneys in the succession; Mrs. Barlow for $1000 also for services as attorney rendered to the succession by her deceased husband, H. C. Barlow; Solibellos for $4000, evidenced by note subject to a credit. Winn died in 1861; his succession was opened in 1862. In 1869 a tableau of debts was filed by the attorneys for the then executrix, Mrs. Winn, now wife of Richards, upon which appear the claims of the several plaintiffs in the rules as debts of the succession. It was homologated by the parish judge, H. C. Barlow, who himself figured upon it as a creditor for the same debt now claimed by his widow, plaintiff in one of the rules.

There were a large number and amount of other claims on the tableau, but it does not appear that there were any funds to distribute; on the contrary, the evidence both on the face of the tableau and otherwise shows the absence of funds. The succession, formerly a very large one, consisting of lands, slaves, etc., is shown to be now insolvent. May-field, who claims to be a creditor to a large amount as holder of promissory notes of the deceased, opposes the demands of the plaintiffs in the several rules on various grounds, similar to those set up by the executor. They in turn denied that he was a creditor, and averred that if he ever had been his claim was prescribed. The executor resisted the rules upon the ground that until the plaintiffs had been recognized as creditors by a valid judgment or by an acknowledgment of the executor according to law they were not entitled to be heard or to interfere in the succession. That the tableau of debts upon which they based their claims was an absolute nullity. First, because the executrix had left the State and was a non-resident when the tableau was filed without leaving an agent to represent her, and that neither she nor her attorneys could acknowledge claims by filing a tableau of debts; second, because Barlow, the judge who homologated the tableau, was a creditor upon and interested in the tableau; third, because the tableau being approved, the parish court was without jurisdiction; fourth, because the homologation of a tableau being an ex parte proceeding is not binding on creditors; fifth, because no services are specified for the charges of the attorneys, and no evidence offered to support the tableau.

None of the creditors or other parties in interest were cited in the matter of the tableau. It does not appear that there were any funds to distribute, or that any had been collected or distributed. It was therefore not such a tableau as could be made binding by homologation upon either creditors or heirs, nor one in regard to which they can be called in by publication to establish or oppose. Succession of Hart, 8 B. 121; Succession of Day, 2 An. 895; Hickman vs. Flemisker, administrator et al., 12 An. 268. But were it otherwise, Judge Byan, the attorney who filed the tableau, testified on the trial that the executrix was absent from the State when the tableau was filed by him for her, and that she never saw the tableau or any of the claims upon it, and he is not shown to have had authority to acknowledge them for her. The claims of the plaintiffs in the rules do not appear to have been acknowledged in the manner provided by law. C. P. arts. 985, 986. And as was very properly decided in the Succession of Poussin, 27 An. 296, an attorney at law,merely as such, can not allow claims which the, legal representative of the succession never heard of, nor bind the succession by filing a tableau upon which they figure without the knowledge of the executor or administrator. In the same case it was also properly held that a tableau filed under such circumstances does not dispense with that legal- acknowledgment provided for in the articles of the Code of Practice just quoted. In the Succession, of Connolly, 5 An. 753, it was held that where it is denied that one claiming to be a creditor is such (as is done in the case at bar), he can not in the absence of proof of some legal recognition of his claim interfere in the administration of a succession, in which others are interested, to recover damages and dismiss an administrator from office for failing to deposit moneys in bank; that such action can only be urged by those whose rights as creditors are legally established. We think the same principle applies equally in the present case. Mrs. Winn was dismissed from office and another executor appointed, against whom these rules are taken. If the plaintiffs are creditors at all their claims are not liquidated or acknowledged as required by article 985 of the Code of Practice. The executor refuses to recognize or approve them, and, on the contrary, denies their existence. Their only right then is to sue to obtain judgment as in other cases. C. P. 986. It is only such creditor as has obtained either that legal acknowledgment or j udgment recognizing his debt who has the right to submit his claim to the judge of probates that it may be ranked among the acknowledged debts of the succession, C. P. 985, who can obtain its payment according to article 987 C. P., or provoke the sale of property to pay debts under article 990 of the Code of Practice.

It is also denied that Mayfield is a creditor, and averred that if he ever was his debt is prescribed. He claims that the question of prescription was judicially determined in his favor in á suit brought by him to remove Mrs. Winn from the administration of the estate, and that his debt, which is evidenced by several promissory notes, has been legally acknowledged both by the former and present executor. The evidence supports the latter allegation; but we do not consider the adjudication in the amotion suit as determining finally for other purposes and against other creditors or parties interested the matter of prescription. The judgment of the court below dismissed his opposition and made the rules absolute so far as to order the executor to sell property for the payment of debts. It is unnecessary under the view we take of the case to consider the other points raised or the various bills of exception in the record.

For the reasons stated the judgment of the court below is avoided and reversed, and it is now ordered and adjudged that the several rules which were all tried together be and they are discharged at the costs of the plaintiffs; that the opposition of Mayfield being only incidental to the rules be also dismissed at his cost. That the right of the several claimants, including Mayfield, to assert their claims according to law, if any such they have, and of the succession, and all parties in interest, to contest the same, and each of them, be reserved for future adjudication.

The Chief Justice recused himself in this cause.


text:
    No. 7047.
    State ex rel. Carondelet Canal and Navigation Company vs. Edward Pilsbury, Mayor, et al.
    The act ot tlie Legislature, passed at the extra session of 1877, abolishing the office of Park Commissioners of the New Orleans Park, and transferring' all of their powers and duties to the Common Council of New Orleans, did not have the oil’oetoi extinguishing by confusion any judgment which said commissioners had obtained against the said eitv, or of relieving the Common Council from providing for its payment, in the manner pointed out by law.
    A judgment creditor of tho city of New Orleans who has registered his judgment in accordance with law. is entitled to a mandamus to compel the auditing and disbursing officers of the city respectively to warrant for and pay the same, or so much thoroof as there may be a special fund in tho city treasury to pay such judgment; and no misapplication of such fund by any, or all of tho officers of the corporation, can hinder or defeat the rights of tho creditors entitled to be paid out of such fund.
    APPEAL from the Sixth District Court, parish of Orleans. Rightor, J.

      H. D. Ogden and C. G. Ogden for plaintiff and appellee.

      B. F. Jonas, city attorney, for defendants and appellants.
   The opinion of the court was delivered by

Egan, J.

This is a mandamus suit to compel the erasure from the books of the auditing officer of the city of New Orleans of a judgment in favor of the Commissioners of the New Orleans Park, registered July 1, 1873, in accordance with the provisions of the second section of act No. 5 of the extra session of 1870, and also to compel the payment of a judgment for $12,500 with five per cent interest from February 22, 1864, registered subsequently under the same act.

The defendants except—

First — That the court is without j urisdiction to issue the writ of mandamus to any officer of the city of New Orleans to compel the payment of any sum of money alleged to be due, and that none of the defendants except the Administrator of Finance is charged by law with the duty of paying money, and then only upon the proper warrant as prescribed by law.

Second — That there is no ministerial duty imposed by law upon any of your respondents to pay the alleged judgment of relators in the manner prayed for in the petition.

Should these exceptions be overruled, and not otherwise, respondents answer that there is no money in the treasury, not otherwise appropriated, to pay the judgment of the relators. There was judgment below decreeing and ordering the erasure of the registry of the judgment of the Park Tax Commissioners and the payment of the judgment of the relators. From this the defendants have appealed.

The ground upon which the relators claim the erasure of the judgxnent referred to is that the office of Park Commissioners was abolished by act eighty-seven of the extra session of 1877 and the powers and duties conferred upon them by law were by said act conferred on and transferred to the City Council of New Orleans, to whom all the books, papers, and assets have been transferred, and that therefore the judgment in question has been extinguished by confusion, the city of New Orleans having become by the effect of act eighty-seven creditor as she was formerly debtor of said judgment.

Confusion takes place when the qualities of debtor and creditor are united in the same person. C. C. 2217.

The office of Park Commissioners was created by act eighty-four of the extra session of 1870, which is entitled “An Act to establish a public park for the city of New Orleans, and to provide means therefor.” This act provides for the levy and collection by the city of New Orleans of an annual tax of one eighth of one per cent for ten years to carry out the purposes of the act. The park, its funds, and all matters connected with its management, establishment, police, and control are all placed by the act under the exclusive management and control of a board of five commissioners, appointed by the Governor for five years. The powers conferred are very full, including the purchase and expropriation of lands, the borrowing of money for the construction of the park, and with that view the issuance of their corporate bonds or promissory notes, and the power to grant mortgages, to secure the same, to sue and be sued, etc. That they did exercise the powers conferred is shown by the fact of their having obtained this judgment against the city, the erasure of which is now sought, and also by the evidence offered by the relators that they had in obedience to act eighty-seven of 1877 turned over their books, papers, etc., to the City Council.

It is not protended and can not be successfully argued that act eighty-four of 1870 was repealed as a whole by act eighty-seven of 1877. Indeed, the very title and terms of the latter act preclude that idea. C. C. art. 23; 4 R. 77; 3 An. 399. It only abolishes the special park tax, (the annual levy and collection of which for ten years was provided for in the former act), and also the office of Park Commissioners, and in express terms confers “all the powers and, duties” of the Commissioners under that act upon the City Council of New Orleans. It undoes nothing that has been done by the Commissioners, who may for aught that appears in this record have issued their bonds, notes, and mortgages, borrowed money, and purchased or expropriated lands and constructed the park. This very judgment may be the means designed and expected to pay indebtedness so incurred, or at all events may furnish the means of future purchase or construction by the City Council, who are made the new officers or agents to act in lieu and stead, and with all the powers and duties formerly exercised by the Bark Commissioners. It is manifest then that there is good reason why the judgment in question should not be considered extinguished or abolished any more than any other asset or property of or incidental to the City Bark. It may be that the act eighty-seven creates the anomaly of imposing apparently inconsistent duties upon the same set of officers already clothed with the power and duty to administer the affairs of the city generally, and that they might not now be able by suit to enforce against the city any of the rights or obligations of the Bark Fund, but it by no means follows that they as representing the city are relieved by act eighty-seven of the duty of seeing that this like any other judgment against the city is paid whenever there are funds for the purpose, as is, indeed, specially provided by act eighty-four of the extra session of 1870. The City Council of New Orleans are the officers and agents or rather the agency through which the city acts, but they are by no means the city itself, which is composed of all the inhabitants. We think, then, there is wanting that identity of person as creditor and debtor which is necessary to the extinguishment of the judgment by confusion. One person, the debtor, is the city of New Orleans, and the other person, the creditor, is the ideal, intangible being or thing the City Park Fund, even though the City Council be as they are made the trustees or agents at one and the same time of both the debtor and the creditor. No such consequence of extinguishment of that fund can follow from an act which merely deprives it of the sustenance of further taxation and commits its administration to other hands.

As to the first ground of exception: We held in the case of the State at the relation of the same plaintiffs vs. the Mayor and Administrators-of New Orleans, 30 An. 129, that “perfect as the right of the relators is-under the law to have their registered j udgment provided for in the annual budget, there is no means or process by which it can be enforced-' otherwise than by mandamus.” In the State ex rel. Strauss vs. Brown,. Administrator, 30 An. 78, the relator proceeded by mandamus to compel the payment of pay-rolls not in judgment and based upon claims accruing in 1876, subsequent to the passage of act No. 5 of 1870, and we heldl he could not do so. The present case is, however, essentially different» The relators’ claims originated long prior to that act. They have resorted to the ordinary action as required by it, and obtained and registered their judgment in accordance with its provisions. The remedy by fieri facias is denied them, and would probably be ineffective any way, the duty of the City Council to budget for their judgment has been already decreed in the former case, and performed as appears by this record, and nothing now remains but the plain ministerial duty on the part of the auditing aud disbursing officers, of the city respectively to warrant, for and pay the same or so much thereof as there may bo money in the treasury to pay. The evidence discloses the aggregate registry of judgments against the city, including relators’, up to February 5,1875, to be 196,710 32, that of relators being the last. They are required to be paid in the order of their registry. It appears from a statement in the record that payments have been made upon other judgments but none on that of relators. Other statements show collections and disbursements and large amounts appropriated toward current expenses. As, however, we have refused the erasure of the prior registry of the judgment in favor of the Park Tax Commissioners, we are unable to ascertain from the evidence, as it stands, the existence of funds in the treasury to meet relators’ judgment. We, however, regard the answer of the defendants that “there is no money in the treasury not otherwise appropriated,” as evasive and not satisfactory; and we shall remand the cause that a more full, perfect, and satisfactory statement and more full and satisfactory evidence may be made and offered as to what amount of money has been actually received into the city treasury on account of the fund applicable by law to the payment of judgments since the date of the registry of that of relators and how the same and every part thereof has been applied. In doing so we will announce that in our opinion the relators who have obeyed the requirements of the first section of act number five of 1870, by resorting to and obtaining judgment “ in the ordinary form of action,” and registering the same in the proper office, according to section two of the same act, can not be deprived of all remedy to compel the performance of the duties of the City Council, and of those members of it who are charged by law with the custody and disbursement and giving the n'ecessary warrants for the disbursement of the fund provided for their payment. That remedy we think is by mandamus as to all who have plain and imperative duties to perform in the premises. If the writ be directed to several acting in different capacities, but the action of nil or of any is necessary for the doing of any thing necessary toward the payment of relators’ judgment, each is bound to obey the writ according to the functions or duties assigned to him or the whole collectively, if necessary, as we held in the thirtieth Annual case of the same relators; see Moses on Mandamus, p. 199. High, on Extraordinary Legal Bemedies, says: “ Mandamus has been fitly termed the spur by which municipal officers are moved to the performance of their duty, and it may bo affirmed as a general rule sanctioned by the best authorities that where a plain and imperative duty is specifically imposed by law upon the officers of a municipal corporation so that in its performance they act merely in a ministerial capacity, “ the writ is freely granted in ail such cases, the ordinary remedies at law being unavailing.” Section 321. By article 831, O. P,, the writ may sometimes issue even where there are other means of relief, while this writ is made by the provisions, articles 829 to 844, C. P., inclusive, specially applicable to cases of this kind. As we have already intimated, where all the other requirements of act number five of the extra session of 1870 have been complied with by persons having claims against the city we can not so interpret its provisions as to deny the right to mandamus; to do so would, we think, extend its meaning and object to an unwarrantable and unconstitutional extent; and to deny to its creditors, who have resorted to and exhausted the legal remedies pointed out in the act, all remedy against the negligence, unfaithfulness, or inaction of the city officers, or for the enforcement of their rights. This can not be done, and the interest, both of the city and its creditors, requires that it should not be allowed.

High says — continuing the section just quoted — Where county commissioners are required by a plain and positive statute to set aside a certain portion of county funds annually for a specific purpose, and have refused to perform this duty, they may be compelled to act by mandamus, and so, where under the statutes of a State it is made the imperative duty of town authorities to appropriate and pay over a certain per centage of the taxation of the town for the support of teachers’ institutes, the payment may be enforced by mandamus, there being no other adequate remedy by action at law, or otherwise.” We regard act-number five of 1870 as having been intended to correct the great and very common abuse of resort to the writ of mandamus to enforce against the city summarily, and without opportunity for the ordinary means of contestation, claims of a class for which there exists other and ordinarily adequate remedy by ordinary action, which will afford such opportunity for contest, and that it is but little more than the application of the general rule which High, in section 339 of the same work, says is too firmly established to admit of doubt or controversy; that if there be any other adequate and specific remedy, such as an action at law against the corporation, by which relief may be had by the aggrieved claimant, mandamus will not lie to compel municipal authorities, or their auditing boards, or officers, either to audit or pay claims against the corporation. This rule,.he says, is but the application of “a principle underlying tbe entire jurisdiction by mandamus.” In section 344 he says further, however, that “ this rule is to be accepted with the qualification that the existing legal'remedy shall be adequate to meet the exigencies of the case.” In section 351 the same author says: “As regards the mere act of drawing a warrant on the treasurer or other municipal officer charged with payment after a demand has been properly audited and allowed,” the case stands upon a different footing “ from those where that has not been done, and in such case the amount of indebtedness due from the corporation being definitely fixed by the proper authority (here by the court), there remains only the ministerial act oi' drawing the necessary warrant for its payment, and mandamus is the appropriate remedy to compel the performance of that duty.” And again, in the same section, “ Where money has been raised by taxation for the payment of a specific class of creditors, and is in the hands of the officer entrusted by law with the duty of making payment, the wuit will lie; the remedy by action against the officers being regarded as inadequate,” a remark which may well be applied to tne action in damages, against the municipal officers and their sureties, provided by the fourth section of act number five of 1870, before quoted, “where the creditor has been unjustly delayed in the payment of his judgment, or where an unjust preference has been given to other creditors.” Indeed, the right to do both or either, we think, can not be questioned. The remedies are cumulative.

No one contends for, and all the authorities forbid, resort to the writ of mandamus where nothing is to be accomplished by it; and it is in general true that if a corporation or officer whoso duty it is to pay money has n’t it that is sufficient answer to the writ. Moses, however, lays down the rule to be, and wo think it is correct, that “ if one whose duty it is under the law might have had funds had he not misapplied them, he is as much bound to pay as if lie had them.” “ Therefore, when public moneys are raised by taxation for specific purposes and placed in the hands of the county” (for which wo may here read the city) “ treasurer, to be paid out on the ordeis of certain auditing boards, and the treasurer pays out the-money for other purposes than those for which the money was raised, he may, notwithstanding, be compelled to pay the order drawn on him to saiisfy claims for which the money was raised ;” and he cites a number of authorities in support of tills proposition of common sense and common honesty.

As we llave already seen that the relators may have equal remedy by mandamus against any or all other officers having duties to perform in connection with the payment of their judgment, we will now say that the same principle may be applied with equal propriety to all other officers whose action is necessary, as to the city treasurer, so far as relates to the performance of the duty assigned to him, or them, and that the misapplication of any specific fund by the act. of any or all of the officers of a corporation can not defeat- or hinder the rights of those entitled to it. We mean no especial stricture upon the municipal authorities of New Orleans, but the practice has been so common of late of dealing indiscriminately with all classes of funds in the towns, parishes, and cities of the State, without regard to the uses to which they are devoted by law, or the purposes for which they are drawn from the pockets of the tax-payers, that we deem this a fitting occasion to announce our views of the law on that subject. We think the City Council were properly brought before us in regard to the denied erasure of the registry of the judgment in favor of the Park Commissioners, and we are not prepared now by reason of the character of their answer, and from the evidence in the record to say how far they may be properly before us for the other purposes of the case. We therefore hold that question in reserve for future adjudication, should it become necessary.

Por the reasons stated in this opinion, it is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and set aside, that the demand of the relators for the erasure of the registry of the judgment of the Park Commissioners against the city of New Orleans be and it is rejected, and that for the other purposes of this case it is remanded to the court below for the reception of further and fuller answers and evidence as herein before indicated, and to be proceeded with according to law and the principles of -this opinion.

It is further ordered that the appellee pay the costs of appeal.


author: Spencer, J.

text:
    No. 6921.
    John K. Jones vs. Trustees of the Congregation of Mount Zion
    Defendants, (having- been sued in a corporate capacity), after appearing in their corporate name, and filing an exception, and an answer, and plea in reeonvention, are estopped from disputing their corporate capacity.
    Ministers of the Methodist Church are entitled to recover for their services, as ministers, whatever salary their congregations may have contracted to pay them.
    The mechanic who builds a church for a certain congregation, is entitled to the mechanic’s lien on the church, and the ground, belonging to the congregation, on which the church is situatod, to secure the payment of what is due him for his work.
    APPEAL from the Fifteenth Judicial District Court, parish of Assumption. Beattie, J.

      Walter Guión for plaintiff and appellant.

      B. N. Sims for defendant and appellee.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff sues to recover, first, his salary as minister for the years 1873, 1871, 1875, and 1876; second, for his wages as a mechanic in the erection of Mount Zion church, with privilege thereon, and on one acre of ground upon which it is situated; third, to annul as fraudulent and simulated a sale of said church and lot, made by defendants to one Christian.

He alleges that the defendants are a corporate body, duly incorporated under the laws of the State by notarial act. He prays that defendants be cited through its President, Thomas Kennedy, and for judgment for amounts as claimed.

The trustees and congregation of Mount Zion Church of Napoloonville ” appeared by counsel, “ solely for the purpose of urging the exception * * * that they have not been cited, &c.”

Subsequently defendant withdrew this exception, and filed an answer; first, denying generally plaintiff’s allegations; second, that “they, the trustees and members of Mount Zion Church of Napoleonville,” are governed by the rules and discipline of the Methodist Episcopal Church; third, they deny that they have ever been incorporated under the laws of the State, but have associated themselves together for the worship of God, according to the faith of said Church; fourth, they deny plaintiff’s right of action, and aver that no judgment can be rendered against them; fifth, they admit that they contracted with plaintiff to build the church, but allege that he failed to fulfill his contract — leaving certain work in the interior of said church undone; that they had paid him for the work done and owe him nothing; sixth, they admit plaintiff’s services as minister of said church for years 1873 and 1874, but deny that they owe him any money for salary as such; they deny that under the regulations of the Methodist Church he has any action against them therefor; seventh, they allege that plaintiff was treasurer of the church and received and used all the contributions received thereby, from members, fairs, &c.; eighth, they finally accuse him of apostasy, and with leading his flock from the folds of Methodism to Congregationalism, and with breeding-strife and contention, and inciting insubordination. Whereby they claim damages to amount of $1000, and pray judgment therefor in re-convention.

On these issues the caso was tried. There was judgment for defendant, and plaintiff appeals.

The ground assigned by the judge a quo for his decision was that the notarial act of incorporation of the “ Trustees and Congregation of Mount Zion Church of Napoleonville” had never been approved by the district attorney, or, on his refusal, by the judge. -

We think that after appearing in their corporate name, and excepting to plaintiff’s suit, and withdrawing the exception, then answering by a general denial, and a plea in reconvention, defendants are estopped from disputing their corporate character. Litigants can not be permitted “ to blow hot and cold” in the same breath. Whilst it may be true that the act of incorporation was and is informal, and whilst the incorporators themselves might not be permitted to claim and exercise for their own advantage or emolument corporate powers, it does not follow that they may not, by their acts and dealings, as well as by their pleadings, estop themselves from taking advantage, for their own profit, of defects in their charter.

The evidence in this case satisfies us that the “ Trustees and Congregation” of said Church contracted with the plaintiff to build their church, and to serve them as -a minister therein. We are satisfied that he built the church with his own labor, and acted as the pastor for the time claimed, and that, except as stated by him, he has not been paid therefor. The Church is composed of colored persons, and the attempts of some of the witnesses to explain the deviations of the pastor from the true Methodist faith are more amusing than lucid. The gravamen of their charge is, that he read to them out of a “ new book” — without, however, being able to state even the name of that book, or any points of doctrine it contained.

It is further urged, however, that the plaintiff can not recover his salary, because of the following rule of the discipline of the M. E. Church: - •

“ Effective men who have not been able to obtain their allowance from the people among whom they have labored may present a claim to the conference, to be paid out of the money at the disposal of the conference, and such claims may be paid, or any part thereof, as the conference may determine. In no case, however, shall the Church or conference he holden accountable for any deficiency as in case of debt.”

We are at a loss to see how that provision prevents a Methodist minister from suing those who have contracted to pay him for his services. It only directs that when ministers have been unable to obtain their allowance from their congregations, they may present a claim therefor to the conference, but it shall not be taken or construed to be a debt of the Church or conference. In other words, the allowance may be asked as a boon, but not demanded as a right from the Church at large.

We would be very loth, upon principles of natural justice and equity, to allow so unmeritorious a defense to deprive a man not only of compensation for his services in a most useful and honorable profession, but also of the fruits of his toil and labor as- a mechanic. Those who rely upon technicalities to defeat undeniable and just demands, should be careful to bring themselves within technical rules. The defendants have failed to do-this, and in easting “a drag-net,” they must not be surprised if they occasionally catch more than was intended. They have not commended themselves or their case to favorable consideration by the course pursued. Their attempt to put the church property out of reach of plaintiff’s just demands for building it, by making a fraudulent and simulated sale thereof to one of their own trustees — a transaction so transparent that on trial their counsel admitted it to be a pure simulation — would indicate a broader apostasy from the true faith of their Church than they have boon able to fix on plaintiff himself. The judgment appealed from is erroneous, and must be reversed.

It is therefore ordered, adjudged, and decreed that the judgment appealed from bo avoided and reversed. And it is now ordered and decreed that the plaintiff, John K. Jones, do have and recover of the Trustees and Congregation of Mount Zion Church of Napoleonvilie the sum of one thousand and thirteen dollars and fifty-five cents, with legal .interest from judicial demand. It is further decreed that the mechanic’s lien claimed by plaintiff, upon the church building and one acre of laud on which said building is situated, described in plaintiff’s petition, be recognized and made executory to pay and satisfy four hundred dollars principal of the amount above adjudged to plaintiff, with the interest thereon as above stated, and that said building and lot be sold to pay by preference the amount of said lien, to wit: §400 with interest as stated. It is further decreed that the notarial act of date July 15,1876, whereby said trustees and congregation pretend to have sold to Archy Christian said church and lot of ground, be and tire same is declared fraudulent, simulated, and void. It is further decreed that defendants pay costs of both courts.


author: Marr, J.

text:
    No. 6965
    Mrs. Mary F. Blouin et al. vs. Liquidators of Hart & Herbert.
    The mero fnet that a creditor accepts the voluntary surrender of liis debtor will not slop interest from running on his debt, or divest any pledge ho may have.
    Tho written agreement of a debtor who has borrowed certain bonds, to return bonds of the same description, for the same amount, at a certain term, is not a promissory note for tho amount of tho bonds. The obligation is to return tho specific bonds at tho timo fixed, or pay their value at that time.
    Tho fact that tho stock of a corporation is only transferable on the books of the company, does not prevent a stockholder from validly pledging his stock, by merely delivering to his creditor the certificates of his stock. A transfer of the stock on the books is not necessary to perfect the pledge.
    A creditor holding tho mortgage note of a third person as collateral security, is compelled to crodit the debt due him with only the net sum ho was legally able to collect on said notes.
    APPEAL from tbe Fifth Judicial District Court, pai'ish of East Baton Rouge. MaFea, J.

      JE. T>. Favrot and Herron & Bird for plaintiff and appellee.

      Samuel P. Greeves and Favrot c6 Lamon for defendants.
   The opinion of the court was delivered by

Marr, J.

On the first of January, 1875, Mrs. Mary Frances Blouin, wife of Joseph D. Blouin, lent to Hart ancl Hebert, bankers of Baton Rouge, nine 5-20 U. S. bonds, of 1867, eight of which were for $1000 each, and one was for $500, for which they gave her their writing, in the form of a promissory note, bearing interest at eight per cent after maturity, at one year, for $8500, payable in U. S. 5-20 bonds, of 1867, “with 87000 of Baton Rouge Gas Light Company stock as collateral security, which are to be returned with the note, when paid, to S. M. Hart as his property: ” and, on the same day, Hart and Hebert executed and delivered to Mrs. Blouin their promissory note for $500, payable on the first of January, 1876, with eight per cent interest from maturity.

The Gas stock' was represented by two certificates, one for eighty, and the other for two hundred shares, of $25 each; which were delivered to Mrs. Blouin, together with a note of Father Delacroix, for $1800, secured by mortgage on three lots of ground in Baton Rouge.

In the fall of 1875, Hart & Hébert suspended; and on the seventh December, by Notarial Act., they surrendered and conveyed their property and assets, which were, nominally, largely in excess of their liabilities, for the benefit of their creditors, who appointed a Board of Liquidators to manage and administer the property. In this Act all the liabilities and all tho assets and property surreridered are set forth and described; and it is stated that the shares of Gas Light Stock and the mortgage note of Delacroix wore pledged to Mrs. Blouin as collateral.

In November, 1875, Joseph D. Blouin brought suit on the mortgage note, and obtained judgment on the confession of Father Delacroix, with recognition of the mortgage. Execution issued on this judgment, and the mortgaged property was seized, ancl, two thirds of the appraised value not having been bid at the first offering, it was sold on tho first of April, 1876, for $560, on twelve months credit.

In November, 1876, Mrs. Blouin brought this suit to recover the balance due her on the two obligations, one for $8500, the other for $500, subject to a credit of $4:14 25, proceeds of sale of the Delacroix property, ancl $1582, paid to her on account by the Liquidators, on sixth June, 1876. She prays that her right to hold tho stock in pledge be recognized, and that it bo sold in satisfaction of her judgment and costs.

The Board of Liquidators deny that the stock was validly pledged to plaintiff; and aver that it is their property and should be returned to them. They also aver that if plaintiff should prove her demand, she is bound to credit it with the whole amount, principal and interest of the Delacroix note; and if she should fail to prove her demand, then the note belongs to them, and should be returned to them.

The judgment of the District Court was in accordance with the prayer of the petition, except that it allows the full amount, principal and interest, of the Delacroix note as a credit. The defendants appealed; and appellee, in her answer prays that the judgment be so amended as to allow $134 25, the amount actually realized on the Delacroix note, as a credit, instead of the full amount of said note and interest.

Appellants complain in this court:

1: That interest should stop from the day when plaintiff, as one of the creditors of Hart & Hébert, accepted their voluntary surrender.

2: That the amount due on the first of January, 1876, was the full value of the note for $8500, in legal tender notes, then and now the currency of the United States.

3: That 'the Gas Light Stock is transferable only on the books of the company, on the surrender of the certificate: That the title of Hart & Hébert was never divested; and that defendants as assignees of Hart & Hébert are entitled to the stock.

4: They also insist that the judgment of the. District Court charging plaintiff with the full amount of the Delácroix note is correct. That in his suit on the note J. D. Blouin alleged that it had been pledged to him as collateral; and the money advanced not having been paid, he has become absolute owner, and is entitled to the proceeds; and that Mrs. Blouin is bound by the statements and admissions of her husband, because the fact that she has credited her demand with the proceeds, shows that the suit was brought by him in her interest.

First. The assets and property surrendered by Hart and Hébert, at the estimated value, are greatly in excess of the debts; but, whether plaintiff is to be paid in full or pro rata, her debt is the aggregate of principal and interest; and we know no reason or rule which requires her to give up the interest, as justly her due as the principal.

Second. The writing, obligation for $8500, is not a promissory note: It is a promise to return to Mrs. Blouin United States five-twenty bonds of 1867, calling for $8500. That is, Mrs. Blouin lent to Hart & Hebert bonds of that description,-for that amount, and bonds of the same description, for the same amount were to be returned to her at the end of the year. The bonds were worth more than currency; and by the terms of the contract Hart & Hébert were bound to return to her the specific things promised, or their value, at the date at which they should have been returned.

Third. The certificates of stock were delivered to Mrs. Blouin, and pledged to her as security. Hart & Hebert could not, by any proceeding, have taken these certificates out of the possession of Mrs. Blouin without having first paid the debt due her in full. It is true, the stock is transferable only on the books of th'e company; but that simply means that the company will not recognize any one as the owner of stock who is not the transferee, on the books of the company, of the person to whom the certificates were issued; but this has nothing to do ■with the rights which other persons may acquire, as between themselves and the stockholder, by the pledge and delivery of the certificates.

The Board of Liquidators can not claim this stock. In the act of surrender, their title, it is stated that the stock Is pledged to Mrs. Blouin; and an extract from the minutes of the Board, of sixth January, 1876, is conclusive:

“ J. D. Blouin was authorized to sell the Gas Stock held by him as collateral from Hart & Hebert, at public sale, by an auctioneer, by advertising fifteen days, and without resorting to judicial process.”

Fourth. There is no pretense that the Delacroix note was given or accepted in payment. It was held by Mrs. Blouin as collateral. When Blouin brought suit on it, he described himself as owner, and so he was, so far as the legal title was concerned. If this note had been paid in full, all the proceeds would have been applied to the debt which it was pledged to secure; but it does not thence follow that Mrs. Blouhj was bound to allow the whole face of the note and interest as a credit, when she realized on it only $434 25. By prompt action her husband endeavored to collect this note; and at the smallest expense. He obtained a confession of judgment; and ho subjected the mortgaged property. It was twice offered, and sold at the second offering on twelve months credit for $500, which must be assumed as the .highest price that could have been obtained. It is not suggested that there has been any fault or laches on the part of plaintiff; nor that Father Delacroix has either means or property to pay the balance: nor is it said or shown that there was any means or process by which any more could have been realized on this note.

The Board of Liquidators knew that Blouin had obtained judgment on the note, as appears by an extract from the minutes of eighteenth December, 1876:

“It was resolved.that Mr. Blouin be authorized to sell the judgment that he holds against Father Delacroix at public sale.”

Blouin was one of the Board of Liquidators. As such he was bound to use proper diligence in collecting the assets and applying them to the payment of the debts. In addition to this, his wife was a large creditor; and it is not reasonable to suppose that he would have asked, or that the other members of the Board would have granted permission to sell the judgment, if they had not been satisfied that it was good for nothing beyond the value of the property mortgaged to secure it.

We find no error in the judgment to the prejudice of -defendants; but it must be amended in order, to do justice to plaintiff.

It is therefore ordered, adjudged, and decreed that the judgment in so far as it allows, as a credit on the demand of plaintiff, “the sum of eighteen hundred dollars, being amount of the Delacroix note and interest thereon from September second, 1871, to November, 1875,” be avoided and annulled: that instead of that amount tho judgment in favor of plaintiff be credited with the sum of four hundred and thirty-four dollars and twenty-five cents ($434 25), as of date first April, 1876, that being the amount realized by plaintiff on the Delacroix note; and, as thus amended that the said judgment be in all other respects affirmed with costs.


author: DeBlano, J.

text:
    No. 6996.
    E. S. Eskridge and Husband vs. E. D. Farrar, Agent; and Mary E Ogden et al. vs. the Heirs et al. of John Perkins.
    The executor may prosecute to its final termination, an action instituted by the testator to annul a donation inter vivos made by him.
    When parties, who have been instituted by a last will as universal legatees, or legatees under a universal title, assume the quality of such legatees, they become bound for the debts of the succession, and — saving tho case of reduction — for the payment of the particular legacies.
    When tho condition on which a donation was made has not boen complied with, the donation may bo revoked, whether tho property donated be in the possession of the donee, or of a transferee of tho donee.
    When neither error nor fraud is alleged by parties, they can not be relieved from the legal effects of their own acts, and declarations.
    Heirs and universal legatees are personally hound, in proportion to tho share each inherits, to pay tho particular legacies. But they are hound only to tho extent of tho effects of the succession, and honee they may free themselves from paying the legacies by abandoning to the legatees, after tho payment of debts, the effects of the succession.
    APPEAL from the Thirteenth Judicial District Court, parish of Madison. Hough, J.

      Thos. P Farrar, J. B. Currell, and F. H. Farrar for plaintiffs and appellees.

      J. W. Montgomery and T. J. Semmes for defendants and appellants.
   The opinion of the court was delivered by

DeBlano, J.

John Perkins senior died in the State of Mississippi, on the 30th of November 1866, leaving as forced heirs: his son John and the children of his deceased son William. In December 1866, the last will of the said John Perkins senior was probated in Mississippi, its execution ordered in this State, and Abner N. Ogden and Josiah Stansbroug'h appointed as the executors of the same by the Judge of the 13th district of this State. By that will, the deceased instituted defendants his universal legatees, and charged his bequest to them with particular legacies in favor of plaintiffs, who now claim from said defendants what they consider they are entitled to under the provisions of that probated and subsisting will.

Defendants appeared in Court through an agent, and — for answer to plaintiffs’ demand — contend that the will of John Perkins senior is null and void, because it contains a prohibited substitution, and also because the particular legacies are largely in excess of the disposable portion.

They allege — besides—that, in April 1857, the deceased donated to his son John the Somerset estate, then valued at more than six hundred thousand dollars, and that one of the conditions of that donation was that his said son should — at the death of the donor — pay to them— the respondents — partly as a gift from him to them, and partly in satisfaction of their inheritance from their grandmother, the deceased wife of the said John Perkins senior, the sum of two hundred and forty thousand dollars. That, on the 11th of August 1869, in compliance with that condition, the donee of the Somerset estate sold them four of the plantations comprised in that estate, in payment of the aforesaid claim, which is specially referred to and re-asserted in the deceased’s will.

In bar of plaintiffs’ demand, respondents plead the prescription “ of one and ten years, and prescription generally.”

In the pleadings and in the arguments, two principal questions are presented:

- - 1. Was the donation of April 1857, from John Perkins to his son, revoked either before or since the death of the donor ?

2. Do defendants derive their title to the Somerset estate from that donation and the dation in payment from John Perkins to them, or from their ancestor’s will ?

If we could look beyond the evidence introduced by the parties, it-would not be difficult to find that, in December 1865, John Perkins senior brought suit to revoke the donation made by him to his son in April 1857, that — by a decree of the 13th district court, rendered in-November 1866, said donation was revoked — that said decree was reversed by this court in 1868, and the ease remanded for the express purpose of allowing the creditors of John Perkins junior to intervene in that suit;-and — here—returning to the Record, what do we find? That — in his last will, which bears the date of the 11th of June 1866, John Perkins senior declares that the Somerset estate had reverted to him and that he had sued to recover the same, on the ground of the - non-fulfillment by his son of the conditions of the donation. He died six-days after the signing of the first decree by which that donation was revoked.

What became of the twice remanded case? We-are not informed; but, on the 24th of April 1874 — defendants, through their agent, ratified a compromise previously made by the executors of their grandfather’s will, with the creditors of John Perkins junior. That compromise is not in the record. In and by the same act, defendants accepted from said executors, “ all and singular the property of the deceased’s succession, consisting of what is known as the Somerset estate, together with all and singular the personal property belonging to said estate and thereto attached, as well as all other property and effects of said succession under the administration and control of the said executors.” When this delivery was made and accepted, Somerset had been and stood inventoried as belonging to the succession of John PerkiDS senior, since more than seven years; and this delivery was made and accepted on the express condition that defendants — as heirs and universal legatees of said deceased — would pay all the debts of the succession and discharge the legacies “ in so far as the same are legal and binding on the property of said estate.”

On the 20th of May 1874 — less than a month after they had been placed in possession of Somerset, defendants mortgaged it to Mrs. Chaplain, to secure a loan of $28,000, and — in the act passed to that effect —mention is made that said property is encumbered with certain legacies well known to the mortgagee.” The legacies thus referred to are certainly those made by John Perkins senior. If defendants acquired their title under the donation of 1857, how explain their assumption of debts and charges not imposed by that donation? How explain that they did not themselves collect, and allowed the executors of the now assailed will to receive and dispose of the revenues of Somerset, and ■sanctioned — not only the receipt, but the disposition made of those revenues — by their approval of the account rendered at their own demand by said executors ?

It is contended, with a great deal of force and ingenuity that Somerset did not belong to the succession of John Perkins senior — that said succession had no real property in Louisiana, (and — if it did now own Somerset — this is true) — and that, in accepting from the executors the surrender of that estate, defendants merely took that which— since 1869 — had been their property, under the dation in payment from John Perkins jr to them. If so, we are at a loss to understand why they incurred the trouble and expense of appointing an agent to settle— in this State — a succession which owned nothing in this State. That supposition can not be reconciled with and is repelled by every word of defendant’s mandate to Farrar.

On March 25th, 1874, these defendants went before a notary in Paris, and appointed Judge E. D. Farrar their agent and attorney in fact, for the reasons and purposes set forth by them as follows:

“Whereas, the said Nora M. Perkins, Annie William Perkins and-' Blanche Z. Perkins are the universal heirs and legatees of John Perkins,. Sr., deceased, whose estate has been opened and is now being administered in the State of Louisiana by Abner N. Ogden and Josiah Stansbrough, executors of the last will of said John Perkins, deceased;

And, whereas, it is desirable that said administration should be-closed and terminated, and the property of said estate turned over and’, surrendered to said heirs;

And, whereas, there are debts due by and outstanding against said-estate, and also legacies in favor of divers and sundry persons, and’ among them to Ellen M. Perkins, which legacies are, in whole or in part,, unpaid;

And, whereas, certain obligations have been assumed by theseappearers for the payment of certain sums to divers creditors of John Perkins, Jr., as shown and evidenced by an act of compromise with said creditors, of date in the year 1871;

And, whereas, in order to the prompt and speedy settlement of said debts and legacies, it may become necessary to dispose of portions of the real estate of said succession, and enter into compromises and transactions with said creditors and legatees;

Now, therefore, we do by these presents confer upon our said agent,. Edgar D. Farrar, full and plenary power for the purpose herein above-set forth, and authorize him particularly and especially,

1st. To institute and prosecute, in our names, all suits, etc. *

2d. To represent us, judicially or otherwise, in the final settlements of the accounts of said executors, rand to compromise and compound with them, to grant them acquittances and discharges from their trusts in our names and belialfs, and to receive and receipt for the property of said estate.

3d. To acknowledge and bind us for the payment of any and all legacies and debts due by us or from the estate of said John Perkins, deceased, etc. * * *

4th. To sell or give in payment unto said legatees or creditors, or-to sell to other persons such portions of the real estate aforesaid, as he may deem proper, etc. * * *

5th. To lease out any and all lands, etc. * * *

6th. To borrow money and contract debts, etc., and to execute mortgages to secure same.

What real estate of said succession, did defendants themselves authorize their agent to receive from 'the executors and to dispose of, in order to effect the prompt and speedy settlement of the debts and legacies alluded to in their procuration ? It was undoubtedly the Som- - erset estate, or the whole of that power of attorney is meaningless.

We have referred to, but did not consider the evidence which might have been adduced of the institution of a suit to revoke the donation of 1857 — but, taking the facts as they were elicited on the trial ■ — we must consider and decide whether a suit commenced by a donor, for the revocation of a donation, on account of the non-performance of the conditions therein imposed, can be prosecuted — after his death — by the executor to whom he has given the seizin of all the estate of his succession. After answer filed, actions do not abate by the death of any of the parties, and the executor is bound to administer on all the property of a succession which is expressly declared in the will to belong to the testator, even on property claimed under an adverse title, and may maintain an action to annul a donation inter vivos made by the testator. C. P. 21; 6 L. R. 99; 7 L. R 32.

In this instance, have the executors done so ? Have they continued the suit which — in his testament — the deceased declared that he has brought and which is alluded to in Judge Ogden’s letter to Eskridge? If they have, what has been the result? Has the revocation been pronounced ? This important fact is commented upon by plaintiffs and defendants, asserted by the former, denied by the latter, but neither fully established by the first, nor completely contradicted by the others, and we are left in presence of the deceased’s declaration that Somerset has reverted to him, and of the acceptance by and delivery to defendants of the legacy which the will contains in their favor.

Have they not — by that-aceeptance — by their declarations and their acts — assumed the quality of universal legatees or legatees under an universal title of John Perkins senior ? If so, they are bound for the debts and charges of the succession, and — saving the case of reduction, for the payment of the particular legacies.

C. C. 1611 (1693) 1614 (1606); 2 R R. 382.

It is not alleged that their acceptance was the consequence of any error of fact — of any fraud practiced, or violence exercised against them, and they can not now dispute its validity. They have — in judicial proceedings and in an authentic act — assumed the quality of heirs and universal legatees, and their acceptance is the simple and express one referred to in the 988th article of the Revised Code.

Defendants’ counsel rely on article 1890 of said Code, which provides: “ that a. person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract can not be revoked.”

Applying that article to this case, they say: the stipulation made in favor of defendants in the donation of 1857, was accepted by their tutrix, and their interest can not be affected by any judgment of revocation that may have been rendered in a suit to -which they were not parties.

If that stipulation stood alone: were it the only charge imposed upon the donee, that argument would present an important question; but the first, the paramount obligation of the donation from the father to the son, was that — from the first of January 1858 — the son would pay to his father, during the natural life of the latter, an annuity of $15,000, and it is admitted that — at the death of the donor — of the ten instalments of that annuity which had then matured, not one had been paid. The donee was, or it appears was then owing the donor one hundred and fifty thousand dollars; and — inasmuch as the conditions of the donation had not been complied with, he was not the incommutable owner of the property comprised in the donation.

Demolombe, vol. 20, p. 573, number 610.

He — nevertheless—before he had himself acquired an indefeasible title to the property which he held under a conditional donation, transferred it to defendants who had thereon but an eventual right, one which depended on the execution by the donee of his principal obligation in that quality, which was to pay to his father an annuity of $15,000. When was that transfer made ? After the institution of the suit in revocation, and — it may be — after those who opposed it had expressly or tacitly assented to that revocation, after a revocation which — we presume — must have been contested by others than the defendants — as, otherwise — the evidence of their contestation and of its results would have been introduced on the trial.

Demolombe — vol 20, p. 534 and 535 — said: “Les charges, dans une donation, n’ótant pas la cause principale de l’opóration, mais ne formant que des clauses accessoires, on aurait pu douter si leur inexécution pouvait ouvrir, au profit du donateur, une action en revocation, et e’est ce doute que le législateur a résolu, etc.” — and, at page 562 — “ Que le donateur ne puisse pas demander directement l’exécution des charges, qui n’ont pas ótó stipulóes dans son intérót, cela se concoit; mais e’est la précisément un motif pour qu’il puisse demander la revocation pour cause d’inexócution de ces charges: aussi le texts absolu des articles 953 et 954 du C. N. lui aceorde-t-il ce droit, pour tous les cas, sans distinction.”

The same author indicates the difference between the revocation and dissolution of an act of donation.

“D’une part, on a dit qu’autre chose est la resolution dela donation, autre chose la revocation! Le donateur, qui stipule une condition résolutoire — comme, par exemple — le droit de retour, ne revoque point par la sa libéralitó: il en limite sculement l’ótendue par une clause concomitante et constitutive de sa libéralitó elle méme; et — dans ce cas — la donation, aprés qu’elle a óté résolue par l’événement de la condition, n’en a pas moins repu toute la plenitude ¿’execution, dont elle était susceptible, dans la mesureoú elle avaitété faite. Tres différenteestla donation révoquée, qui, loin de finir conformément á la loi de sa constitution, finit, au contraire — par une dóehóance qui implique, en quelque sorte, l’idée d’un effet manqué.

Demolombe, C. N. vol. 20, page 521, Coin-Delisle, art. 953, No. 2.

The acceptance by defendants’ tutrix — not of a donation made to them, and in an act passed between them and tlieir ancestor — but of a charge imposed in their behalf, in an act to which they were not parties— did not close the door against their ancestor’s action for the revocation of the donation, on account of the non-performance of its conditions. R. C. C. 1559, number 3.

What is the position in which the defendants have placed themselves, in regard to the succession of John Perkins senior? In their procuration of the 25th of March 1874, to Edgar D. F.arrar, they represent themselves as “ the universal heirs and legatees of said deceased.” In their petition of the 23d of April, alleging to be the beneficiary heirs and universal legatees of their grandfather, they asked of his executors a final account of their administration of his succession, and the delivery of the property thereto belonging. The account demanded was filed and approved — and, by a notarial act of the 24th of April — they, as lieirs and universal legatees, took possession of all that composed said succession in Louisiana, and that was the Somerset estate, discharged the executors and bound themselves to pay the debts and legacies for which it was liable.

Whether they had or have on or in Somerset, rights derived by them, through their father and from their grandmother: whether they did acquire, by the dation in payment of the 11th of August 1869, an absolute title to that estate — the fact is there, staring us in the face, that — by the act of the 24th of April, they took — not under the dation in payment, but under the will, and — as against that act, its recitals and stipulations, they plead neither error nor fraud — Can we relieve them from the legal effects of their own admissions, from the legal effects of their uncontradicted declaration that they have claimed, beeh allowed and taken possession of the whole of the succession of John Perkins senior, including Somerset — from the legal effects of their absolute promise to pay the debts and legacies? We can not: but, to what extent are defendants liable for those legacies ?

The Civil Code fixes the extent of their liability; it provides:

Art. 1633 — The heirs of the testator, or other debtors of the legacy, shall be personally bound to discharge it — each in proportion to the part that falls to him in the succession.

Art. 1465 — The heir, or universal successor, is not hound for the legacies, except to the amount of the value of the effects of the succession, and he can therefore free himself from them by abandoning to the legatees what remains of the succession after the payment of the debts.

Art. 1466 — If it be the forced heir who makes the abandonment to the legatees, he has the right to reserve to himself, from the effects of the succession, the legitimate portion secured to him by law, and shall deliver up the balance to the legatees.

In his commentaries on article 1017 of the Napoleon Code, of which the 1633d article of ours is a literal copy, Marcadé said : “ Puisque les legs ne peuvent se prendre que sur le disponible, et que les successeurs généraux ne les doivent que dans les limites du disponible qu’ils detiennent, comment voulez vous que l’héritier les donne encore aprés que la succession entiére est épuisóe ? La qualité d’hóritier pur et simple est ici insignifiante, et celui qui en est revétu se trouve — quant a l’acquittement des legs — sur la méme ligne que l’hóritier bénóficiaire et les légataires universels et á titre universe! La distinction entre l’héritier pur et simple et les autres successeurs généraux n’existe que pour les dettes.”

It was the evident intention of John, Perkins senior to leave to the children of his deceased son William the largest share of his considerable fortune, but he had not foreseen the events which occurred after his death, which condemned the largest of our estates to a prolonged sterility, reduced their value and production — and converted once productive lands into real burdens. Trusting to the experience of the past, impressed with the recollection of the revenues derived from the cultivation of Somerset, he directed that the payment of most of his particular legacies should be made out of its future revenues.

Defendants’ counsel urge that the legacies to plaintiffs can not be paid otherwise than as thus directed: that they are not payable out of the property generally, nor by a sale of any portion of the same. This argument is based on a clause in the will, in which the testator expresses ■“ the desire that his property should be kept together by his executors for the benefit of his grandchildren and the payment of the legacies.” The succession of John Perkins senior has been opened for upwards of eleven years: his universal legatees have received the property which composed it since four years, and the inevitable effect of the defendants’ construction of that clause of the will, would be to postpone indefinitely the payment of the particular legacies. The instructions from ■ the deceased to Ids executors might have been enforced during their administration and while they had the seizin of the succession; but they were not intended to suspend — at the will of his universal legatees — the execution of the other clauses of his testament. His most earnest wish was to prevent the morcelling of Somerset, and yet, as to that estate, he advises that it be kept undivided as long as the law will permit.

“ Particular legacies must be discharged in preference to all others, even though they exhaust the whole of the succession, or all that remains after the payment of the debts and the contributions for the legitimate portion, in case there are forced heirs.

R. C. C. 1634.

“In default of funds sufficient to discharge the-debts and legacies of sums of money, the executors shall cause themselves to-be authorized by the Court to sell the movables, and if they are insufficient, the immovables, to a sufficient amount to satisfy the debts and legacies.

R. C. C. 1668.

Was Somerset the separate property of John Perkins senior, or did it or any part of it belong to the community which existed between him and his deceased wife ? If it was common property, and if, as such, any part of it passed to defendants’ father or to them, they might — by proper steps — protect any title so acquired by thepi against the enforcement of plaintiffs’ rights.

They are bound for the legacies only to the amount of the value of the effects of the succession, and they can free themselves from them by abandoning to the legatees after the payment of the debts and the reserve of their legitime, whatever may then remain of what they received, from their ancestor’s succession.

R. C. C. 1465 — 1466.

The prescription of one year urged by defendants is not applicable to plaintiffs’ demand, and — considering the acknowledgments and promises made by the former in the act of the 24th of April 1874 — that of ten years, if applicable, has been interrupted.

The prescription of five years opposed by plaintiffs to defendants’ informal demand for a reduction of the legacies which they seek to recover, runs against minors only from the date of their majority. At the death of their ancestor, the universal legatees were minors — that is shown, and we are not informed when they became of age.

R. C. C. 3542 (3507).

This fact, and the fact that the evidence is too incomplete to justify the fixing of any reduction to which the defendants may be entitled, compel us to remand this cause to the lower court for a new trial — and, in so doing — we do not limit the scope of that trial.

' It is, therefore, ordered, adjudged aDd decreed that the judgment appealed from is avoided and reversed, and this case remanded below, to be proceeded in according to the views herein expressed and according to law: the costs of the appeal to be paid by plaiqtiffs.

Spencer, J. recused.