author: Ludeling, C. J. Taliaferro, J.,

text:
    No. 170.
    Heirs of Brown et als v. E. & B. Jacobs et al—J. W. McDonald, Administrator, Intervenor.
    An agreement made and reduced to writing between the administrators of an estate and1 third parties relative to the sale of a plantation under administration by them which-fixes a price per acre, and binds the administrators to make a good title before the money is paid is not, in itself, a fraudulent nor an illegal act which will vitiate the sale when regularly made in pursuance of the forms of law in the sale of succession property.
    If the terms of the sale of succession property wore partly for cash and partly on credit, the fact that the purchaser chooses to pay the entire price in cash is not an evidence of fraud on the part of the purchaser, especially if the notes which were to be given for the credit portion only drew interest altor a specified time from their execution.
    Eorced heirs have only a residuary interef-t in the succession of their ancestors, and they can not therefore maintain au action to annul a judicial sale which has been regularly made of their ancestors’ property to pay the debts of the succession.
    A judicial sale of real estate belonging to a succession which has been made for tlie purpose of paying tbe debts of tbe estate before the adoption of the Constitution of 1868 is not void or voidable, bocause the price received was in Confederate treasury notes. Article 149 of this Constitution has no application to contracts which had been executed before its adoption. In such a case tl'e courts will leave tbe parlies where their conduct has placed them.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. O. M. Pegues, attorney at law, Judge ad hoe, vice Levisee, Judge,, recused.

      W. B. Bgan, for plaintiff'. Nutt & Leonard, ior intervenor. John Bay, for E. & B. Jacobs, defendants. George Williamson and S..L. Taylor, for defendants.
   Ludeling, C. J.

This suit was instituted by the forced heirs of J. H.. and Rebecca S. Brown, deceased, and J. T. Bryan, a judgment creditor of said decedents, to annul a judicial sale of the plantation and personal property belonging to said successions, made on the fourteenth, day of April, 1863, to E. and B. Jacobs, and to recover the plantation., and the value of the personal property thus told.

The nullity of the sale is claimed on the following gro.uuds: That • the sale was without any legal, valid or valuable consideration — the.price paid being Confederate money ; that the sale was for much less than tile appraised and real value of the land; that the price being in Confederate money it was less than one-thirtieth of the value of the land; that there was no commission to the administrators or any,person to authorize them to make a sale; that Morrow and Kennon never-qualified as administrators of the succession of R. S. Kennon, which was never regularly opened; that two of the children of J. H. and R. S. Brown died before the sale, and their successions were never opened; that no family meeting was held to fix the terms and conditions of the sale in the interest of the heirs, who were minors; that there was no meeting of creditors, and neither they nor the heirs ever consented to the sale ; that the forms of law and the terms of sale were not complied with; that the real estate could not be sold legally until the slaves and personal effects of the succession had been sold; that the slaves and personal property would have sufficed to pay the debts, but ■ they have been lost to plaintiffs through the acts and neglect of the-defendants and the administrators; that there was not property enough left to pay the debts, but that with the land there will be enough to pay the debts and leave something for the heirs; thatno part of tile consideration for the sale inured, to the benefit of the heirs or creditors; that although the sale was clothed with some of the forms of law, yet it was made through fraud and, collusion between E. and B. Jacobs and the administrators, and that its real purpose was,to-carry out an illegal and fraudulent agreement entered into by private writing on the fifth day of December, 1862; that the succession of Rebecca S. Brown was not opened when the private agreement was, entered into, and that Kennon and Morrow subsequently applied for the administration in order to carry out said agreement, and for that purpose all the subsequent proceedings were had; that no tableau of' debts -was filed in the succession of Rebecca S. Brown, and no necessity 'was shown to sell said lands, and that none existed; that said Morrow and Kennon applied for an order in said succession to sell the land before procuring their 'appointment as administrators, and that the orders of appointment and for the sale bear the same date, and were made with a. view to forward the execution of said private agreement,, all of which was well known to the defendants prior to the sale.

The defendants are A. Marshall, a tenant in possession ; ,E. J. Kennou, one of the former administrators of the successions of Brown and Edward and Benjamin Jacobs, the purchasers of the property and the real defendants.

Marshall and Kennon filed general denials. E. and B. Jacobs admit their possession of the land in dispute, and aver that they bought it in. good faith at a judicial sale on the fourteenth day of April, 1863, and that they have paid the price in full. They deny the charge of fraud and collusion, and they pray for the value of improvements in case of eviction.

The case has been argued orally and by briefs with great zeal and ability, and after a careful examination of the record and the authorities cited we have reached the following conclusions:

James II. Brown died in Bossier parish in the year 1860, and his wife Rebecca S. Brown died within a few months thereafter, leaving several children, of whom the plaintiffs alone survive. When J. H. Brown died he was in possession of a plantation on Red River, a number of slaves, mules, cattle and hogs, a quantity of corn and cotton and other personal property which belonged to the community of acquets and gains, which had existed between himself and his wife. On the tenth day of April, 1861, Morrow and Kennon were appointed administrators of the estate of J. II. Brown. On the eighth of December, 1861, an order was granted on their application for the sale of the land, but the sale was not made.

In December, 1862, the administrators of E. and B. Jacobs entered into the following agreement:

“This obligation entered in duplicate between James M. Morrow and Edward J. Kennon of the ono part and E. and B. Jacobs of the other part. The first party, residents of Claiborne and Bienville parishes, and the second party, residents of Caddo parish, witnesseth that the said Morrow and Kennon, administrators of the succession of James H. Brown, deceased, do hereby bind themselves individually and personally unto the said E. and B. Jacobs to perfect and make good title to them of the plantation belonging to the succession of the said James II. Brown, lying on the west bank of Red River, in Caddo parish, Louisiana, bounded on the north by Daniel’s plantation and on the south by Patrick Cash’s, and opposite the Waterloo plantation, supposed to contain about five hundred and fifty acres, more or less — the number of acres to be ascertained by a survey to be made by Hailey Watts, or auy other legally authorized surveyor, within forty days from this date, the same to be made at the expense of the said succession. The said Morrow and Kennon bind themselves to perfect said title as aforesaid by due legal sale at public auction within the next forty days. The consideration for the above transfer is as follows : The said E. and B. Jacobs bind themselves to pay to the said administrators seventyfiye dollars per acre for each and every acre there may be ascertained to be contained in said tract by said legal survey — that is to say, seventeen thousand dollars tobe paid down in cash upon the completion and perfection of the title, and upon the giving of possession of said land, and the balance of said purchase money, whatever it may be upon the ascertainment of the number of acres, at the said rate of seventy-five dollars per acre, payable in two equal installments, the first due six months after the sale and perfection of title, and the second due in twelve months after said date, with mortgage to secure payment.
“ And it is understood between said parties that the said E. and B. Jacobs shall have the privilege of making any larger cash payment than is hereinbefore stipulated, and that the said E. and B. Jacobs shall, at any time before the falling due of the installments or credits, be allowed to take up their outstanding notes therefor.
“And the said E. and B. Jacobs do further bind themselves to pay interest at the rate of eight per cent, per annum upon the credit installments four months after the day of their date.
“ Thus done and signed at Minden, Claiborne parish, State of Louisiana, in presence of the undersigned witnesses, this fifth day of December, 1862.
“J. M. MORROW,
“E. J. KENNON,
“ Witnesses :
“£ and B. JACOBS.”
“ J. P. Smith,
H. A. Drew.”

On the eighth of December, 1862, Morrow and Kennon presented their petition to the court ior the sale of the plantation, and an order to sell was granted on the same day. No sale appears to have been made under that order. About one month after Morrow and Kennon applied to be appointed administrators of the estate of Mrs. Brown. 'They took the oath required by law on the second and third of March, the bond was filed on the sixth of March, 1863, and on that day the order of appointment was signed. Morrow and Kennon, as administrators oi both successions, then applied for an order to sell the property, which was granted, and after due advertisement the property was adjudicated by one of the administrators to E. and B. Jacobs for seventy-five dollars per acre, and according to the terms of the advertisement and order. Whether there was a commission or execution issued under this order is not made certain by the record before us— none is found in the record; but the proeés verbal of the sale made by the administrator recites that the administrator of both successions, “ in pursuance of the annexed commissions issued in said successions,” adjudicated the property to E. and B. Jacobs. A commission, however, had been issued under the first order to sell the property of the succession of James H. Brown. Both orders directed the administrators to sell the property and fixed the same terms. We do not think a commission or execution in such a case indispensable. 18 An. 485; R. Statutes, p. 32, sec. 18.

The administration of J. H. Brown’s estate involved the administration of the community property, which alone composed the succession of Mrs. Brown. No administration of Rebecca S. Brown’s estate was necessary to vest a good tirle in the property sold. 17 La. 238 and 12 An. 223, succession of McKean.

The interest which the forced heirs had in the property of the succession of their parents was residuary. After the debts are paid the residuum will belong to them. 10 R. 457. And they were not entitled to any other notice of the sale than that given by the advertisements made in accordance with law. Neither was the consent of the creditors needed to make the sale, as the succession was not administered as an insolvent estate, nor was it necessary that a tablean of debts should have been filed prior to obtaining an order for the sale. C. C. 1051, 1058, 1063; 11 An. 633; 2 An. 503; 12 R. 545.

The charge of lraud seems to he predicated chiefly on the private agreement between the administrators and E. and B. Jacobs, and the fact that the price was paid in Confederate money, and that the notes executed for the credit installments were paid on the day the title was passed. The evidence shows that there was a necessity to sell property to pay debts. The tableau of debts, filed shortly after the sale, shows that debts due by the estate and contracted for the education and support of the heirs amounted to upwards of sixty thousand dollars. It appears, further, that the administrators consulted with the relatives of the minors ns to whether the land or slaves should be sold, and that it was deemed most to the interest of the children that the land should he sold ; that the administrators having learned that the Messrs. Jacobs desired to buy a Red River plantation, wrote to them that the Brown plantation was for sale. In the interview which followed, the administrators iniormed the Messrs. Jacobs that it would he useless to visit the plantation unless they were willing to give seventy-five dollars per acre for it. After examining the plantation the Messrs. Jacobs agreed to give seventy-five dollars per acre for the propel fcy, provided a good title to the same should be given them. We are unable to discover anything in the agreement to indicate a fraudulent or improper intent. The administrators wore desirous of securing a bidder for the property a.t the price stipulated (which is proved to have been the full value of the property at the time the sale, was made), and they were not willing to incur the expenses necessary to make a sale unless they had some assurance that the appraisement would be bid by some one. We see nothing improper in this. Every one is presumed-to know the law, therefore we can not presume that, even if this private agreement had been known to others, it could have deteired bidders. There is nothing to show that the parties to the contract intended anything of the kind. In fact, the agreement could not have prevented bidders. There remain only the questions. whether the facts that the price was paid in Confederate money, and that tl.e notes given for the credit installments were paid on the day when the deed was passed, vitiate the sale ?

We attach little or no importance to the fact that the notes were paid on the same day the title to the land was passed, for it appears that the credit was intended for the benefit of the purchasers. The credits were for six and twelve months — the notes bore interest only after four months from the dates of the notes, and it is proved that Confederate notes were worth, at the date of the sale, about two for one in gold, or nearly as much as United States treasury notes.

It is contended that there can “ be no valid sale without a price, and that price in current money, and that Confederate notes were not a price in current money, or money at all,” and that the sale to the Messrs. Jacobs was therefore invalid.

The answer is that it was a judicial sale, made in good faith and in accordance with “ existing laws” in 1863, and it was fully executed.

Articles 127, 128 and 149 of the Constitution, construed together, mean that contracts or obligations for Confederate money or notes are reprobated — those which are executed can not be set aside, and those unexecuted can not receive the aid of the courts to enforce them. Paties interested or affected by such contracts are left without any remedy — they can not invoke the aid of the courts to adjust their differences. Lee v. Taylor, 21 An. 514 ; Smith v. Henderson, 23 An. 649, and Allen v. Cutliff and Husband, 23 An. 614.

In regard to the cotton, the plaintiffs have failed to establish their demand. If a sale of the cotton was made to defendants, as contended by plaintiffs, it was fully executed, and the defendants are protected by article 149. If it was only left with defendants as security for a loan, the evidence preponderates in 'favor of the defendants’ allegation— that it was destroyed or lost through no fault of theirs.

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

Taliaferro, J.,

dissenting. Fraud vitiates all contracts, and when made apparent the law relieves innocent parties who have been affected by it. It matters not whether the contracts are executory or executed. Article 149 of the State Constitution in declaring that executed contracts entered into between the twenty-ninth of January, 1861, and the adoption of the Constitution shall have efficacy, announces as a condition of their having force and vitality that they shall have been entered into in good faith. The sale of the property of Brown’s estate was made within the period specified in that article, but in my judgment it was made in fraud, and therefore should be held invalid. The fraud is, to my mind, patent. Conduct such as that of the administrators of this estate should have no countenance from courts of justice. They deliberately enter into a private agreement for a sale of the property to the purchasers, and bind themselves individually and personally to perfect the title to them. They move in the matter from no outside pressure of creditors. No creditor was importuning them for payment. The heaviest debts against the estate wore in New Orleans. About two-thirds in amount of all the debts were held by creditors residing there. The administrators were not only not called upon to take order in regard to the payment of the New Orleans creditors, but they could not lawfully do so. Had those creditors been in a position to speak for themselves they would have ignored emphatically the- industry used by the administrators to procure Confederate money to pay their debts. The other creditors representing less than half of all the debts, and who were in a situation to urge their claims, were not doing so. They were quiescent, doubtless not wishing to be paid in the only currency with which they could have- been paid at the time. But suppose they had’ been clamorous and demanding a sale of property, there was a sufficient amount of personal property to pay them, and it was the duty of the administrators to have it sold fust, and not to have sold the land. But they were personally and individually bound to make the purchasers a good title, and they were the machinery of the law \to fulfill their private engagements to sell the property of the estate. They petition for a sale, representing that the estate was in debt, but they present no schedule, no evidence whatever of the fact, and the order of sale was rendered without evidence that there was at the time any necessity for it. A witness who attended the sale says he would have hid more for the property than it sold for, but hel understood that his friends, the administrators, were hound to the purchasers that they should have the property for the amount stipulated, and he therefore did not interfere. The administrators set up as a reason for the sale that it was advisable to sell the plantation on the river and purchase a place back in the hill country, to remove the slaves to keep them out of the reach of the Yankees.

In the matter of selling the property of estates, it is the province of administrators to deal with matters of necessity rather than with matters of expediency. The property belongs of right to the heirs of Brown, then minors. If no necessity existed for the sale of it — and certainly none is shown — it could only have been sold on the ground of expediency, as being for the interests of the minors, and for their benefit and advantage; and of this the tutor, with the advice and ■ authorization of the minors’ relatives, assembled in family meeting, were to determine, and not the administrator. In no sense can it be shown that this fraudulent sale of the property of the helpless minors has resulted or could hare resulted otherwise than disastrously to them. Had their property not been sold they would have had at the close of the war the same opportunity that all others involved in the same calamity had — -that of compromising their debts, getting time to pay them, and to save a large and valuable plantation, now irretrievably lost by the fraudulent acts of administrators grossly abusing the trust confided to them, and acting in violation of law. It would be no excuse to say that their debts were paid by the operation, if such were the fact. But it is not true that the debts have been paid. There are unpaid creditors still, and for large amounts. One of these is a party plaintiff in this case asking redress.

Litigants are not heard in courts of justice to allege their own turpitude, and parties who enter into engagements reprobated by law, and come into the halls of justice to have them enforced, are left as they are found, and are properly denied audience. But the parties seeking redress in this case come into court with clean hands. They are not seeking relief from any reprobated act in which they have participated. They complain of iraudulent acts to their serious injury by other parties. The heirs of Brown complain that they have been divested of their property by the unlawful acts of persons not authorized to represent them. They show that the administrators, as the representatives of the estate, made themselves busy in the matter of getting up the sale of their property when there was no necessity or call for it, and that their conduct throughout has been fraudulent and deleterious to their interests.

The brothers Jacobs bought the property with full knowledge of the illegal conduct of the administrators. This is shown by their becoming parties to the written agreement by which the administrators were bound personally and individually to make them the title for a fixed price, to be paid in Confederate money. This agreement was the main transaction by which these men were to become owners of the property. The machinery of the law, as it was arranged, was to be used merely to give it the very thin veil of a legal proceeding. The agreement was dated December 5, 1862. The administrators presented their petition to the probate court of the parish of Bossier, on the eighth of that month, for a sale of the property precisely on the terms agreed upon.' It turned out that the- purchasers were the only bidders at the sale. It is in proof that the idle formality,of presenting notes was gone through with. The purchasers, eager to get rid of the depreciated currency they were no doubt overstocked with, paid off with it the whole amount of this nominal price. These men are merchants— men of intelligence and shrewdness. Looking to coming events they saw approaching and distinctly visible in the distance the utter worthlessness of the prevailing currency. To vest it in valuable plantations was most desirable. Accordingly we ñnd them active and industrious in seeing that the preliminary steps were all properly taken by which the administrators were to be guided in carrying out their part of the programme.

This transaction is not, in my judgment, covered by the provisions of article 149 of the State .Constitution. The whole proceeding should be set aside as null and void, and the property declared to belong to the estate of Brown.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 305.
    R. B. Sadler, Tutor, et al. v. G. W. Kimbrough, Administrator—Walker & Vaught, Intervenors.
    In this case the wife died, leaving an estate consisting of the community with her husband, who took charge of it without any formal administration other than that of having an inventory taken. The surviving husband continued to manage the entire estate as his own property up to the time of his death, some years thereafter, and contracted, debts with commission merchants and others. After his death the heirs instituted suit against his estate for their interest in the succession of their mother.
    The creditors intervened and claimed to be paid first, on the ground that their debts bore against the community.
    Held — That the husband having taken possession of the entire estate, without any formal authorization, and used it as his own up to iiis death, his estate was bound for all • debts which existed against the community at the time of its dissolution by the death of the wife.
    Held further — That the heirs can only claim against the creditors the residuum after they are paid.
    from the Fourteenth Judicial District Court, parish of More-house. Bay, J.

      D. O. Morgan, for plaintiffs. O. F. Bunn, for defendant. Todd & Brigham, for intervenors and appellants.
   Howell, J.

Mrs. C. N. Ward, wife of W. R. Ward, died on eighteenth March, 1867, leaving a husband and four minor children. On the iourth of May, 1869, an inventory of the property belonging to the community between the said husband and wife appears to have been made, showing, at the latter date, real estate appraised at $11,500, and personal effects (including $5186 61 cash, described as being on hand at the date of the wife’s death) appraised at $23,757 50. All of said property remained in possession of the husband and was used by him until his death, on the eleventh of September, 1869, when Gr. W. Kimbrough was appointed his administrator. It is admitted that one tract of land belonging to the community was, by order and judgment of the parish court, partitioned between the heirs of the wife and the succession of the husband. On the tenth of October, 3870, the heirs instituted this suit against the administrator of their father to recover judgment for $12,867 50, as the amount due them from the succession of their mother, composed of half the proceeds of the undivided half of a certain tract of land sold by the administrator, and one-half of the inventoried value of the personal effects, and for the recognition and enforcement of their legal mortgage on the land belonging to the succession of their father, and their lien and privilege ■on one-half of the proceeds of the land sold, now in the hands of the administrator, and that they be declared the owners of the land and improvements partitioned to them. The administrator answered by a general denial, qualified by admissions with reference to the alleged partition and the sale of the land mentioned, denying that all the personal property embraced in the above inventory came into his hands, and averring that the total value of all the property, real and personal, which came into his possession, did not exceed $12,000, and that many of the rights and credits described in said inventory were worthless.

Walker & Vaught, commission merchants, intervened, alleging themselves to be creditors of the succession oí Ward for $8003 11, besides interest; that the indebtedness is also a charge against the ■community that existed between Ward and his deceased wife; denying that the succession of Ward was indebted to the plaintiffs in any amount; that they had any cause of action against the succession, or that their claim was based on any legal demand whatever; averring that it was purely a fictitious one, and collusively devised between the plaintiffs and the defendant to defraud intervenors and other creditors ; that the community was largely in debt at its dissolution; that there has been no settlement thereof, and denying that plaintiffs can claim anything growing out of their interest therein until a settlement thereof is made; and praying that their demand be rejected. The answers of the plaintiffs and defendant to this intervention are substantially a general and special denial of the allegations and demand of the intervenors. Judgment was rendered in favor of plaintiffs against the defendant for $11,878 75, with legal interest from eleventh of September, 1869, and a legal mortgage on the lands of W. R. Ward’s succession, to take effect from the eighteenth of March, 1867, and on the proceeds of any of such lands now in the hands of defendant — -reserving to the plaintiffs the right to establish their title to the lands set forth as acquired by the alleged partition, and rejecting the •demands of the intervenors; from which judgment the intervenors alone appealed.

The first question presented is, are the intervenors creditors of the ■community which existed between Mr. and Mrs. Ward ? This question was not decided in the case of Walker & Vaught v. G. W. Kimbrough, •administrator, R. B. Sadler, tutor, et al., intervenors, 23 An. 637, as suggested by plaintiffs’ counsel. The language of the court on the ■subject was used in reference to the right of the intervenors in that case to introduce evidence in support of their intervention, and not the question whether the plaintiffs therein held a debt against the-community between Ward and Wife. There is no evidence that the succession of Mrs. Ward had ever been administered. On thecontrary, the property of the community remained in the possession and use of the husband until his death, when such as then existed passed into the-hands of the defendant Kimbrough, as the administrator, of Ward,, who proceeded with the administration of the whole without distinction } and in his accounts, found in this record, there 'are debts which originated prior to the death of Ward’s wife. The account sued on in this action was opened prior to that event, at which date the indebtedness was about $10,798 68. It was an account made by Montgomery,. Peterkin & Co., a commercial firm, of which Ward was a member,, with Walker & Vaught, commission merchants, and extended from January 9, 1867, to February 12, 1869, and on it a judgment has been rendered against the succession of Ward for the balance of $7227 19 with interest, to be paid in due course of administration. For the indebtedness on said account at the date of Mrs. Ward’s death, the community was liable, but it is entitled to the benefit of all credits, properly imputable to its liability or indebtedness. It is liable because the obligation was contracted by its head during its existence.

It is not released by the suit of Walker & Vaught v. Kimbrough, administrator, because the succession of Ward, as administered,, embraced the property which belonged to the community, and no steps-had been taken to separate the two successions, and Walker & Vaught may well have believed that they were pursuing the property of the community.

An examination of the account of Walkey & Vaught and the evidence in the record brings us to the conclusion that they (Walker & Vaught) are entitled to payment from the community of the amount of said account, due on eighteenth March, 1867, subject to the payments made by Ward himself subsequent to that date, to wit: $2079 Of! on twenty-fourth April, 1867; $1393 73 on thirty-first May, 1867, and $1185 87 on twelfth February, 1864 — such payments enuring, it is. presumed, to the benefit of the community. This sum should be paid before the plaintiffs can take any portion of the' community, or recover anything from the succession of their father, their rights derived from their mother not attaching to the prejudice of those who were creditors of the community at the date of its dissolution. But we do not, see how we can disturb the judgment as between the plaintiffs and defendants, who are'both appellees. The only concern, of the intervenors is to be paid out of the community property in preference to. the plaintiffs. If paid, it is no concern of theirs how much the plaintiffs recover. The rights of two successions can not be settled on this appeal. The proceedings, we must remark, are somewhat unusual; but on tbe prayer of the petition of intervention for judgment in favor of intervenors and for general relief, we may set aside or regulate the judgment appealed from, so far as it affects intervenors, and order that their claim, to the extent allowed herein, be paid out of the community property before the plaintiffs are paid.

It is therefore ordered that the judgment appealed from, rejecting the claims of the intervenors Walker & Vaught, be reversed; and it is now ordered that their claim against the community, which existed between W. R. Ward and his wife, Mrs. C. N. Smith, both deceased,, be recognized herein to the extent of six thousand one hundred and forty dollars and seven cents, with legal interest from twelfth February, 1869, and that it be paid, with costs of intervention, in due course of administration, out of the property or its proceeds and funds of said community, in preference to any claim of plaintiffs to or against the estate of said community or either spouse.

Costs of appeal to be paid by appellees.


author: Wyly, J. Ludeling, C. J. Howe, J., Wtlt, J.

text:
    No. 274.
    L. Templeman, Curator, v. C. M. Pegues, Curator.—F. W. Daniel, Intervenor.
    This suit ia brought by tbe vendor for tbe resolution of the sale of a traot of land, on the-ground of tlie non-payment of tlie price. The vendee answered that the notes given for the price wore prescribed, and their payment could not be enforced, and the right to the resolution of the sale no longer existed.
    Held — That the right to have the sale dissolved and to recover back the property for nonpayment of the price, was a distinct and independent right from that of enforcing payment of the notes, which was only prescribed by ten years. That it being a distinct and independent right, and not an accessory of tho notes, it could be maintained, notwithstanding the notes held by the vendor for the price were prescribed and could no longer be enforced.
    from the Tenth Judicial District Court, parish of Caddo. Levisee, J.

      Nutt & Leonard, for plaintiff. Land & Taylor, for intervenor. James 8. Ashton and JSgan, Williamson & Wise, for defendant and appellant.
   Wyly, J.

Tiie case is correctly stated by plaintiff’s counsel, and is the following:

The plaintiff, as a curator of the vacant succession of J. R. J. Daniel, instituted this suit agaiDst the defendant, the curator of the succession of Junius Daniel, in order to set aside the sale of a large tract of land situated in the parish of Caddo, made by the said J. R. J. Daniel to the said Junius Daniel,' on the second day of April, 1859, on account of the non-payment of the purchase price. Plaintiff alleges that the consideration of said sale was the five promissory notes of the said Junius Daniel, and that no payment whatever has been made thereon. He files said notes as a part of his petition, and prays for dissolution of the sale and the restoration of the lands to the succession of J. R. J. Daniel.

Mrs. F. W. Daniel intervened in the suit as the surviving widow in community of J. R. J. Daniel, deceased, and attacked the sale on the ground that it was null and void in law, because it was in fact a donation in disguise of real estate belonging to the community existing between herself and her said deceased husband, and was intended to ■deprive her of her just rights in said community property. She prays for an annullment of the sale and the restoration of the lands to the ■succession of J. R. J. Daniel, and for a recognition of her community rights, subject to administration.

Defendant, in his answer, “ admits that on the second day of April, 1859, Junius Daniel purchased, by public act passed before Thomas H. Pitts, recorder of Caddo parish and ex offieio notary public, certain lands and negroes, for which he executed his five promissory notes, each for the sum of three thousand dollars, with six per centum interest thereon from date, said notes being of even date with said act of sale, and severally due one, two, three, four and five years after date j to which act of sale special reference is made for greater certainty, and is hereto attached and made part hereof.” Defendant further answering, avers that the notes given for the purchase price became the property of Junius Daniel, and after his death fell into the hands of his administrator, J. R. J. Daniely and further answering, pleads the prescription of five and ten years.

The answer of defendant to the petition of intervention is a general -denial.

Upon these pleadings the parties went to trial, and there was judgment for plaintiff, dissolving the sale with a recognition of intervenor’s community rights.

From this judgment the defendant appealed. The leading question in this case is, can a sale be dissolved if the notes for the price are prescribed 9 It is the first time we are aware of that this point has been presented'for adjudication to this court. On general principles we think it can not.

The seller having conveyed the title and delivered the thing, has •executed his obligation arising in the contract of sale. The buyer executing notes for the price, defers till their several maturities the execution of his obligation to pay the price.

Now, the foundation of this action is the failure or refusal of the buyer to discharge his obligation to pay the price. R. C. C. 2561.

The court is applied to for a remedy on account oí this failure to discharge the leading obligation of the buyer. The remedy appertaining to this obligation invoked by the plaintiff is to order the resolution of the sale. This is just as legal a remedy as to order the payment of the price. Either would be a complete discharge of the obligation to pay the price.- It is in the discretion of the court to give the order in tlie alternative, decreeing tlie payment of the price in a specified time, or on failure thereof, ordering the dissolution of the sale. R, C. C. 2562.

There are, therefore, two modes by which the legal obligation of the buyer may be discharged. R. C. C. 2549, 2561. Rut if the obligation to pay the price evidenced by the notes be already discharged, we do not see that the court can grant either remedy. R. C. C. 3540.

There are several modes of discharging legal obligations, and one is as complete and effectual as the other. R. C. C. 2130. Prescription, ■compensation or voluntary remission extinguishes a legal obligation as thoroughly as payment. There is no difference in the effect. The ■operation of either is utterly destructive of the'juridical necessity imposed on the obligor. Now, if the obligation to pay the price evidenced by the notes be extinguished by prescription, it is no longer a legal obligation; it may be a natural obligation, but this can not be a cause of action. R. C. C. 1757.

We can not enforce the obligation of the buyer to pay the price in the case before us by ordering the resolution of the sale, because that legal obligation has already been discharged. R. C. U. 3540. The effect of the dissolving condition is one of the modes provided by law to extinguish legal obligations. R. C. C. 2130. Now, a legal obligation that has already become extinguished by prescription need not be again discharged by the effect of the dissolving condition, if the discharge of a legal obligation by one mode be as efficacious as by another. An obligation that has been compensated or voluntarily remitted need not be paid in order to discharge it, and the court will ■not compel the performance of an obligation already discharged in one ■of the modes provided by law.

If the sale before us be dissolved, what legal obligation will be discharged by the effect of the dissolving condition? Surely not the obligation to pay the price. That has been already extinguished by prescription. The application of a legal remedy always discharges a legal obligation in whole or in part; it is never applied to enforce a natural obligation. By the textual provisions of our law the effect of the dissolving condition is laid down as one of the modes of extinguishing legal obligations. R. C. C. 2130.

There is no legal obligation in the case before us to be executed, or remaining to be discharged, but the obligation of the buyer to pay the price. R. C. C. 2549. That is the cause of complaint. It is the obligation sought to be enforced. But that has now ceased to be a legal obligation. By the lapse of time its payment is implied or presumed. It is the interest of the commonwealth that litigants should be compelled to prosecute their demands in the time limited in the statutes of prescription. If they fail to do so, the law declares the obligation discharged on the presumption of payment, arising from their long delay in not complaining of the want of payment. R. C. C. 2130, 3540.

We think the remedy of the resolution of the sale should not be granted, because if ordered it would not discharge the legal obligation of the buyer .to pay the price (the only unexecuted obligation there was in the act of sale), because that obligation has already been discharged as effectually by prescription as if it had been paid.

After the notes were prescribed the defendant was no longer in default for the price; the obligation to pay the price was no longer binding on him. R. C. C. 3540, 3541. The resolution of the sale can not be invoked in the absence of the obligation binding the buyer to pay the price. R. C. C. 2561.

The seller having conveyed and delivered the thing, and the obligation of the buyer to pay the price having become extinguished according to law, the contract of sale is entirely executed; there remains nothing to be enforced.

In view of our conclusion on the question of prescription it becomes unnecessary to examine the'other points presented in this case.

It is therefore ordered that the judgment herein be avoided and annulled; and it is now ordered that the demand of the plaintiff be rejected, with costs of both courts. It is further ordered that the intervention herein be dismissed at the costs of the intervenor.

On Rehearing.

Ludeling, C. J.

The plaintiff, as curator of the vacant succession of J. R. J. Daniel, instituted this suit against the defendant, the curator Of the succession of Junius Daniel, in order to set aside the sale of a large tract of land situated in the parish of Caddo, made by J. R. J. Daniel to said Junius Daniel on the second of April, 1859, on account of the non-payment of the purchase price. Plaintiff alleges that the consideration of said sale was the five promissory notes of the said Junius Daniel, and that no payment whatever has been made thereon. He files said notes as a part of his petition, and prays for dissolution of the sale and the restoration of the lands to the succession of J. R. J. Daniel.

Mrs. P. W. Daniel intervened in the suit as the surviving widow in community of J. R. J. Daniel, deceased, and attacked the sale on the-, ground that it was null and void in law', because it was in fact a donation in disguise of real estate belonging to the community existing; between herself and her said deceased husband, and was intended to-deprive her of her just rights in said community property. She prays, for an annullment of the sale and the restoration of the lands to the succession of J. R. J. Daniel, and for a recognition of her community-rights, subject to administration.

Defendant in his answer “admits that on the second day of April, 1859, Junius Daniel purchased, by public act passed before Thomas H. Pitts, recorder of Caddo parish and ex offido notary public, certain lands and negroes, for which he executed his five promissory notes, ea<¿i for the sum of three thousand dollars, with six per centum interest thereon from date; said notes being of even date with said act of sale, and severally due one, two, three, four and five years after date; to which act of sale special reference is made for greater certainty, and is hereto attached and añade part hereof.” Defendant further answering, avers that the notes given for the purchase price became the property of Junius Daniel, and after his death fell into the hands of his administrator, J. R. J. Daniel; and further answering, pleads the prescription of five and ten years.

The answer of defendant to the petition of intervention is a general denial.

There was judgment for the plaintiff, dissolving the sale and recognizing the intervenor’s community rights in the property restored to the succession.

From this judgment the defendant has appealed.'

The principal question for solution in this case, on the rehearing, is whether an action for the dissolution of a sale for the non-payment of the price can be anaintained if the notes given for the price be prescribed1? We have just decided, in the case of Joseph T. Swan v. Ann L. Gayle, administratrix, that the right to dissolve a sale for the nonpayment of the price is not an accessory of the notes given for the price, and has no connection with them, it is a distinct and independright conferred by law not to enforce the payment of the price, but to recover hade the land for the non-fulfillment of the obligation of the buyer. It is chiefly when the collection of the notes can not be enforced that this right is valuable. It is based upon the equitable principles that “ no one shall enrich himself at the expense of another,” and that when one party to a contract fails to discharge the obligations assumed by himself, the other party has a right to be released from Ms obligatioaas growing out of the contract.

“ Cette doctrine place le vendeur dans une position extrémement favorable: il peut presque sans peril, négliger son action en paieanent et le privilége qui s’y trouve attache; car s'il perd leprix, il reprend/ra la chose gnfaisant réscindre le contrdV Duvergier’s Toul. Droit Civil, vol. 9, No. 442; liv. III. tit. VI de la Vente. And the same learned jurist adds, at No. 443 : “ Apres avoir montré que les droits dont est aripé le vendeur sont indépendants, en ce sens que la nógligenee en l’abandon de l’un n’a point d’influence sur l’existence de l’autre; il faut voir comment et daais quels cas la demande en paiement serait un obstacle a la demande en resolution et réciproquement.”

If, then, the right to sue for a dissolution of the sale be a.distinct and independent right, having for its object something totally different from the enforcement of payment of the notes, we fail to perceive why that right should be affected by the prescription of the notes. In faeh it has been repeatedly held by this court that the right to sue for a dissolution of the sale on account of the non-payment of the price was prescribed by ten years. George, curator, v. Lewis, 11 An. 655 ; 1 An. 442, James v. Crocker ; 16 An. 129, Hunter v. Williams ; George v. E. A. Knox, Husband et al., 23 An. 355. C. C. 3508.

These decisions would seem to indicate also that the right to sue for a dissolution of the sale was not an accessory of the note, otherwise the prescription or extinction of the accessory would depend upon the extinction of the principal obligation. The question of 'registry is not involved in this case, and the inconvenience alluded to in argument was noticed and disposed of in the case ot Johnson v. Bloodworth, 12 An. 701. In that ease this court said, “Registry laws are artificial rules — the creatures only of positive legislation. * * •* They have seldom if ever been extended by judicial construction to cases not within their plain and obvious intendment.”

We are satisfied that we fell into error in our former opinion in this case in noticing the fact that the notes were prescribed, when that fact was not pleaded, as well as in holding that the right to sue for the dissolution of the sale was an accessory to the notes and perished with them.

The dissolution of the sale will restore the property (o the vendor or owner, which in this instance was the community of acquets and gains existing between J. R. J. Daniel and Mrs. P. W. Daniel. C. C'.„ art. 2045.

It is therefore ordered and adjudged that the decree heretofore rendered by this court in this cause be set aside, and it is decreed that the judgment of the lower court be affirmed, with costs of appeal.

Howe, J.,

dissenting. In my opinion our decree should remain undisturbed. The right to dissolve is accessory, and falls with the principal obligation. 2 N. S. 158; Rogron’s C. N. J692; Duvergier’s Toullier, vol. 17, 275.

Notes given for the price contain in themselves the obligation to pay the price. If they are paid the price is paid. If they are prescribed the piiceis prescribed. The obligation to pay the price in this case is extinguished by prescription, and there remains only a natural, obligation to pay it. Do we purpose to enforce natural obligations by suit?

Again, the right to dissolve may be enforced against a third possessor. 12 An. 699; Paillet’s C. N. 422.

• A sells a plantation to B and takes his note for most of the price at one year, with mortgage and vendor’s privilege. Seven years after he sues for the amount of the note and for recognition of mortgage and privilege. B pleads prescription, and has judgment in his favor declaring the note prescribed and refusing to recognize the mortgage and privilege because they are extinguished also. B takes a rule and has the mortgage and privilege erased. C comes along and examines the title and finds it free and clear of all incumbrance. (We are an enligtened people and require all incumbrances to be recorded.) He buys and flatters himself that he is safe. Two years after A sues to-dissolve. C pleads prescription, as in this case, and points to the-judgment between A and B and the clean record in the mortgage office. But A replies that the action to dissolve still exists — wandering about-like a disembodied evil spirit — and so the sale is dissolved.

Would this be just ? Is it sound on elementary principles ?. Is it in accord with our registry laws V Is it not a trifle worse than the system-of unrecorded tacit mortgages from which we boast a recent deliverance?

Wtlt, J.

I adhere to the former opinion of this court in this case..


author: Ludeling, C. J.

text:
    No. 333.
    R. W. Turner, Under Tutor, v. B. F. O’Neal, Sheriff, et al.
    A second note given by the husband after the dissolution of the community by the death of the wife, in renewal of anote which he had gi^en before the dissolution of the community, is not a novation of the first note, and the heirs of the deceased wife have no mortgage on their mother’s share of the community property which they can u^ge as against a creditor who is seeking* to enforce payment of the last note by seizure of the property which belongs to the community.
    The plea of prescription against a note, based on the ground that the previous note for which, it was given in renewal was prescribed at the time it was given, will fail if the evidence does not disclose the date of the first note.
    from the Eighteenth Judicial District Court, parish of Bossier. Watlcins, J.

      Looney & Ashton, for plaintiff. Griffin & Snider, for defendants in injunction, appellees.
   Ludeling, C. J.

In 1858 R. Y. Graves married Eliza L. Gilmer. In 1859 he borrowed upwards of ten thousand dollars from James W. Vance, for which Graves executed his promissory note. In 1864 Mrs. Graves died. In 1866 R. Y. Graves executed a new note in favor of Vance and took up the old one. Suit was instituted on this last note against R. Y. Graves, and judgment was rendered thereon against him.. Execution was issued under this judgment, and the sheriff seized and advertised for sale property belonging to the community of acquets, and gains which had existed between Graves and his wife, and an undivided interest of Graves in certain other tangible property which was in the possession of the heirs of Mrs. Graves. Whereupon the plaintiffs, heirs aforesaid, enjoined the sale, on the grounds — ;first, that they are the owners of the undivided half of the community property seized; second, that the undivided interest of Graves in the corn, cotton and other movables can not be seized without injury and damage to plaintiffs, and is therefore illegal; third, because their tutor, R. Y. Graves, has never rendered an account of his tutorship ; that J. W. Yance was the under tutor, and failed to require the registry of their mortgage, and that their tutor is largely indebted to them, and they have a mortgage on all his real property to secure their debt.

There was judgment in favor of the defendants, dissolving the injunction and ordering the sale of the property subject to the minors’ mortgage. The plaintiff has appealed, and the defendants have prayed for an amendment of the judgment which directs the property to be sold subject to the minors’ mortgage.

In this court the plea of prescription against the first note is pleaded; that is, that at the time the second note was executed in 1866, the first note had been prescribed, and the community had been dissolved long before.

The only grounds urged in this court by the plaintiff and appellant are that the old note was novated, and that it was prescribed when the new note was executed by R. Y. Graves.

We are satisfied, from an examination of the evidence in this case, that the old debt was not novated by the execution of the new note; it was merely a renewal of the old debt. The intention of the parties is clearly manifested by the statement, at the bottom of the.paper upon which the new note is written.

We have looked in vain in the record for any evidence showing when the old note matured. There is, therefore, no grounds for the plea filed in this court, as the proof of it does not appear on the face of the proceedings in the lower court. C. P. 902,

We think the judge a quo erred in directing the property to be sold subject to the minors’ mortgage. Whether the minors have or have not a tacit mortgage on the property is immaterial in this contest, as it could be no ground for enjoining the sale of the property, if it be admitted that the minors have a mortgage — about which, however, we deem it proper to express no opinion in this case.

It is therefore ordered and adjudged that the judgment of the lower court be amended by annulling that part of it which decrees that the property seized “be sold subject to the general tacit mortgage of plaintiffs,” and that as thus amended it be affirmed, with costs of appeal.


author: Howell, J. Taliaferro, J.,

text:
    No. 252.
    L. J. Willis v. J. Nicholson et als.
    In this case property was seized and sold by the sheriff undor execution. The purchaser obtained a judgment on monition approving the sale. The defendant brings this action to annul the sale on the ground of want of authority in the sheriff to sell, and that there was no sufficient description of the land adjudicated. The purchaser pleaded the jadgment in monition as res judicata, and a bar to the action.
    Hold — That the judgment on the monition appearing to be regular in form, all the requirements in such a case having been complied with, it operated as a bar to farther proceedings touching its validity; that the defenses urged here of want of description, etc. should have been urged at th e trial of the suit for tlie monition.
    from the Tenth. Judicial District Court, parish of Caddo. Levisee, J.

      A. W. O. Hieks, for plaintiff. Nutt & Leonard, for appellants.
   Howell, J.

This is an action by a judgment debtor to annul a sheriff’s sale upon the grounds—

I. Of want of authority in the 'sheriff to make the sale. First, because the sale was enjoined ; second, because he was instructed by the plaintiff' in execution not to sell; third, because he had no authority to sell less than he had seized. '

II. There was no sufficient description and identification of the land adjudicated.

The defendant J. NichoLon, who was plaintiff, admits the allegations of the petition and joins in the prayer to annul the sale.

The defendant R. L. Gilmer, the purchaser, and his vendee of a part of the land, pleaded the judgment in the case of R. L. G-ilmer, application for monition” (reported in 21 An. 589), as res judicata. This and other exceptions not being sustained, and judgment having been rendered on the merits in favor of the plaintiff annulling the sale, Gilmer and his vendee have appealed.

The plea of res judicata necessarily involves the consideration of the “monition law ” and its applicability to this case.

Its object is declared to be to protect purchasers under sheriffs’ and certain other sales from eviction of the property so purchased, and from any responsibility as possessors of the same upon compliance with the prescribed rules; and the judgment on the monition is conclusive evidence that the monition has been regularly made and duly advertised, and the judgment of confirmation “ shall have the force of res judicata and operate as a complete bar against all persons, whether of age or minors, whether present or absent, who may thereafter claim the property sold in consequence of all illegality or informality in the proceeding, whether before or after judgment, and the judgment of homologation shall, in all cases, be recorded and considered as full and conclusive proof that the sale was duly made . according to law, in virtue of a judgment or order legally and regularly pronounced on the interest of parties duly represented. An exception is expressly made, that the law shall not be construed “ so as to render valid any sale made in virtue of a judgment when the party east was not duly cited to make defense,” and the recourse of minors in certain cases is-preserved. R. S., sections 2370, 2380.

Whatever may have been heretofore said, or may now be said in regard to tho effect of a judgment on a monition upon what may be termed radical defects, we think it clear that the judgment on the application of Gilmer for a monition in this instance is a bar to this action. It was clearly the duty of the plaintiff herein, who does not allege a want of citation in the suit against- her, to make herself a-party to that proceeding, and urge all the grounds of opposition which she might or could have. She was manifestly within the category of persons affected by the notices required to be given and concluded by the judgment in said proceedings. Under the language of the law the thirty days notice applies to “ all persons who can set up any right to the property, in consequence of any informality in the order, decree or judgment of the court under which the sale was made, or any irregularity or illegality in the appraisement and advertisement in time and manner of sale, or for any other defect whatsoever.” The defects urged by the plaintiff are the want of authority in the sheriff for specified reasons and the want of a sufficient description and identification of the property. We think there can be no doubt that there are defects of and within the proceedings resulting in the sale, which should have been urged by plaintiff in opposition to the monition. The presumption of law is that the sheriff had in his hands the writ of execution, which was his full, legal authority, to make the sale, and if that authority was revoked or suspended this fact, as well as any defect of description, should have been set up and established in the monition proceedings.

Mrs. Nicholson having been a party to said proceedings is certainly bound by them.

We think the plea of res judicata should have leen sustained, and-plaintiff’s action dismissed.

Ifc is therefore ordered that the judgment appealed from be reversed, and that there he judgment in favor of R. L. Gilmer and R. White, on their plea of res judicata, dismissing plaintiff’s action at her costs, in the lower court. Costs of appeal to he paid by the appellee.

Taliaferro, J.,

dissenting. I adhere, to what I conceive to have been the construction heretofore given by this court to the monition act of 1834, ree.naeted in 1855. It has been held to relate only toinformalities in decrees ordering or proceedings connected with judicial-sales ; it extends but to matters of form, and not to those dehors the proceedings. 10 La. 590. In Robert et al. v. W. W. Brown et al., 14 An. 597, where the question was as to the validity of a sale made without an order of court, and the prescription of five years under the act of 1834, reenacted in 1855, was set up in bar of tbe plaintiff’s claim to tbe property, the court was of the opinion “that this statute does not cure the total want of authority to sell, but merely irregularities and informalities in the execution of the decree or other sufficient authority to sell.” The scope and purpose of the monition law, I thiuk, are clearly defined by Chief Justice Eustis in tbe ease of the City Bank of New Orleans v. Walden, 1 An. 46. The learned judge said : “The monition act of 1834, under which the present proceedings are instituted, was passed for the protection of Iona fide purchasers at judicial sales from litigation concerning matters of form, a non-o.bservance of which by public officers frequently exposed purchasers to unreasonable and vexatious suits. The difficulty of administering and preserving proofs of the observance of formalities rendered eases of this kind, in the hands of the unscrupulous, the instruments of great annoyance and expense to those who had purchased and paid for property exposed for sale under the authority of our courts. This law relates to informalities in the decrees under which judicial sales are made, and to irregular, illegal and defective proceedings connected with the sales. We do not understand the operation of this act to extend beyond matters of form, nor that it purports to operate on any matter dehors the proceedings.” See also 2 An. 208.

In the case now before us I think there was a sale made of the plaintiff’s land without even the shadow of authority. The injunction taken out by the plaintiff to prevent the sale of her property, commanded the sheriff not to make sale of it. He was directed both by the plaintiff’s agent and her attorney at law not to proceed with the sale. These directions were disregarded. It is said on the part of the defendants Gilmer and White, that these instructions from the agent and the attorney at law were verbal, and that the sheriff was not bound to regard them. I know oí no law requiring such instructions to be given in writing under pain of nullity. The judgment creditor has the right to control his judgment and may, uuder the rules oi the law, give directions as to the time of its execution. The sheriff, who is the mere minister of the law, has no discretion in such a case, and must regard the wishes of the creditor controlling the judgment when instructed to suspend or postpone a sale of the debtor’s property. The views here expressed are, I think, lully borne out and sustained by the decision of this court in the case of Williams v. Gallien, 1 Rob., p. 95. In that case a sale of valuable property was made in disregard of the plaintiff’s repeated instructions to forbear selling the defendant’s property, even after he had seen the sheriff’s advertisement oi sale. • In that case Judge Martin, the organ of the court, held that the judgment was the property of the plaintiff, and that the sheriff had no right in violation of the orders of the plaintiff or his attorney to sell the1 property seized, and the sale was annulled. The doctrine announced in that case was again asserted distinctly in a parallel case in 9 Robinson,„p. 77, Spencer, tutrix, v. Conrad, administrator.

There are two defects existing in the proceedings by which the sale in question was effected that, in my judgment, can not be referred to the class of “irregularities and informalities” that may be cured by monition, and these are want of authority in the sheriff to sell, and want of description of the property sold. In regard to the litter I quote the authority of the case of Dodeman v. Barrow, 10 An., p. 193, and the case of M. Gernon v. W. W. Handlin, 19 An. 25, and also the case of Brooks v. Workman, 22 An. 491.

I think the judgment of the district court should be affirmed.


text:
    No. 258.
    Laura J. Willis v. J. Nicholson et al.—T. M. Gilmer, Intervenor.

      A person who alleges that ho has an interest in a judgment that has been enjoined, who was not a party, either directly or indirectly, to the suit in which the injunction was granted, and shows no transfer or subrogation, can not control the execution of such judgment. ,
    from the Tenth Judicial District Court, parish of Caddo. Levisee, J.

      A. W. O. Eiclcs, for plaintiff and appellee. jNutt & Leonard, for 'defendants and appellants.
   Howell, J.

This is an injunction suit, in which the facts material to the issues presented are as follows:

In the case of Nicholson v. Willis, execution issued and the sheriff seized 48Ó acres of laud. Willis claimed a homestead and obtained an injunction of the sale of 160 acres of the land seized; the sale of the balance was made, and subsequently the injunction was dissolved. Pending the proceedings, Nicholson transferred the judgment to John Hendricks, Sr., who, after the dissolution of the said injunction, caused an alias fi. fa. to issue on the unsatisfied portion of the said judgment and the 160 acres of land to be seized; whereupon the debtor in the •said writ instituted this suit to enjoin the sale, on the ground that Nicholson, the plaintiff in the judgment, and in whose name the writ issued, claimed to be the owner of the judgment, and had notified her not to pay to Hendricks; and she made Nicholson and Hendricks parties. Nicholson answered, admitting the allegations of the petition, averring that she had sued to annul the transfer of the judgment to Hendricks, on the ground of fraud, and joined in the prayer for the perpetuation of the injunction. The said transfer was annulled by a judgment which was affirmed on appeal; and afterwards T. M. Gilmer intervened, in tliis suit, claiming to be the owner in good faith of an undivided half of the said judgment by purchase from HendricKS, asserting his rights as against all parties (including the control of the execution), and praying to be declared the owner of one-half of said judgment, and for the dissolution of the injunction so far as it affects his rights.

Upon trial, after issue joined on exceptions and answers, judgment was rendered, perpetuating the injunction against Hendricks and Gilmer, and condemning them to pay costs, from which only Gilmer, the intervenor, appealed.

His counsel say the contest is really between him and the defendant Josephine Nicholson j and that the injunction was perpetuated on the ground that the transfer from Hendricks to Gilmer was without effect until notice of ’transfer had been giveu to the debtor Laura J. Willis. They contend that Mrs. Nicholson, in consequence of her transfer to Hendricks, and his transfer to Gilmer, who acquired in good faith, is absolutely divested of one-half of her judgment; while it is contended on the other side that Gilmer acquired no better title than his assignor and Hendricks had; and as it has been adjudged that Hendricks never had any title to the judgment, Gilmer never acq lired any to the half thereof. It is well to state here that the written act of transfer from Mrs. Nicholson to Hendricks, of which Gilmer had knowledge, indicates by its terms that the transfer was intended to enable Hendricks to use it for some specific purpose; that Gilmer was aware of the contest about the sale of land, which had been made under the judgment, the result of which, if the said sale should be annulled, was to enure to the benefit of Mrs. Nicholson, and that the transfer from Hendricks to Gilmer was merely a verbal agreement between them, of which there was no record whatever: Under these circumstances we do not think Gilmer can invoke the equitable rule that, where one of two innocent parties must suffer a loss, he must bear it who put it in the power of another to cause the loss; but that the rule above invoked against him must apply. 18 An. 412. Mrs. Nicholson never intended to part with the title to her judgment, and as a matter of fact never did part with it; and what transpired between Hendricks and Gilmer can not be held to operate a divestiture of any portion of her title. The judgment is her property and subject to her control, and she does not complain of the decree in this case perpetuating the injunction.

But if it should be admitted that Gilmer has an interest in the judgment enjoined, not being in any way directly or indirectly a party to the record in which it was rendered, and no act of subrogation in his favor being on file, he can not control the execution of the said judgment. 5 N. S. 707; 9 An. 174; 1 E. 94; 9 E. 77.

Judgment affirmed.


author: Taliaferro, J.

text:
    No. 324.
    Succession of John Liles, Sr.—Provisional Account of Executor.
    A creditor of a succession who accepts notes and obligations in favor of the estate as collateral security to collect and apply to bis debt must, in order to escape responsibility, collect them, or show the causes which prevented him. By a failure to collect such notes or show any good reason why ho did not do so, the amounts will be charged to him by the executor, and if the amount is equal to his claim against the estate, compensation takes place, and as he is no longer a creditor he cannot oppose the account of the executor.
    A PPEAL from the Parish Court of the parish of Ouachita. Robert ±S. J. Caldwell, parish judge.

      R. G. Cobb and W. J. Q. Balcer, for executor. Morrison & Farmer, for opponent and appellant.
   Taliaferro, J.

The dative testamentary executor of Liles, under an order of court, filed a provisional account. It was opposed by Wade H. Ilougb, on the ground that the executor refused to recognize his judgment against Liles for $2966 66 as a just claim against the estate. The account was also opposed by Abraham Levi on the ground that his claim against the estate of Liles for $7861 27, on which he had obtained judgment against Liles in 1866, had been refused by the dative testamentary executor and not. placed upon the account. Levi also opposed the judgmeut of Hough, and upon the same ground that it had been rejected by the executor, viz: that it was founded chiefly upon a consideration arising from the price of slaves.

The executor contends that Levi, so far from being a creditor of Liles’s estate, is in fact a debtor. He shows that the original indebtness of Liles to Levi was extinguished by the failure of Levi to collect certain notes for a large amount, upon which judgment had been confessed by one Hogan, and which were plaeed in his hands as collateral security, to collect and apply the proceeds to the discharge of the debt of Liles to Levi. On this issue there was much controversy. It was decided, we think correctly, by the judge a quo who, in an elaborate opinion, eited various authorities to sustain the doctrine that the creditor receiving collateral obligations to secure bis debt must use proper diligence to collect them, and, to avoid responsibility, must show the causes which prevented him. Finding from the facts in evidence no grounds to exonerate Levi from this liability, judgment was rendered against him, decreeing that the liability of Levi, so incurred, exceeds the debt that Liles originally owed Mm, and that it is the duty of the executor to collect the excess. C. C. 3002; 1 N. S. 767, 4 An. 301; 1 An. 13 ; 12 An. 672, 119 ; 10 An. 98, 69 S. 195. The judgment of Hough was decreed to be a valid debt against the estate, and its payment in full was ordered by the court. From the judgment rendered by the court below the executor has not appealed; and •coming to the conclusion that Levi, who has appealed, is not a creditor ■of the estate of Liles, and has no interest to contest the correctness of Hough’s judgment, the decree of the lower court must he maintained. Levi further opposed items from one to five on the executor’s account. The items one and two were allowed ; the amounts as fees to Stubbs & Cobb, and also to W. J. Q. Baker, the court considered as not properly established, and were not allowed; but the right was reserved to establish these claims. The commissions claimed by the executor were allowed. With the alterations made, the provisional account was approved and promulgated.

We think the judgment correct.

It is therefore ordered that the judgment of the parish court he •affirmed with costs.

Rehearing refused,