author: Nicholls, O. J.

text:
    No. 11,673.
    Standard Cotton Seed Oil Company vs. Excelsior Refining Company.
    Where a contract made in the latter part of January calls for the sale of oil “ thereafter to be made by the seller, and to be delivered as made,” the parties to the contract must have had in contemplation a quality of oil which was susceptible of being made at that late period of the season.
    In ascertaining the quality of the object contracted for, this specification as to time of malting and delivery controls the mere name of the article in the contract.
    PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Gus A. Breaux and Percy Roberts, for Plaintiffs, Appellants, cite C. C., Arts. 1948, 1951, 1955, 1956, 1915; 30 An. 264.

      Gilmore & Baldwin for Defendants, Appellees.
    Argued and submitted March 29, 1895.
    Opinion handed down April 22, 1895.

      On the 10th of January, 1894, the plaintiff sold to the defendant five hundred barrels of prime crude cotton-seed oil at the price of twenty-eight cents per gallon. The terms of sale according to the contracts were “f. o. b. buyers tank cars at the mill, delivery as made last half January and first half February, buyers to furnish tank cars promptly as ordered.”
    On the 13th of January, plaintiff sold five tank cars of their prime cotton-seed oil (tanks estimated to hold six thousand two hundred gallons) at the price of thirty cents per gallon of seven and one-half barrels. The terms of sale were f. o. b. at plaintiff’s mill, delivery during February and the first ten days in March as made.
    Shortly after the contract plaintiff tendered to the defendant one hundred and twenty-four barrels of oil, which were received and paid for. A little later they tendered for delivery the balance of the five hundred barrels covered by the first contract, but the defendant, on the ground of inability to pay the price of the oil, requested plaintiff to sell the balance of the five hundred barrels to other persons and allow it to take a like number of barrels of oil thereafter. In conformity with the request plaintiff sold the balance of the oil of the first contract to the Union Oil Company, which was accepted and paid for as being up to the grade of oil stipulated.
    Plaintiff tendered to defendant oil made by it, under the second contract, but defendant declined to receive it at first;, because it was not prepared to pay the price, and subsequently upon the ground that the oil tendered was not up to the grade of oil stipulated. The parties with a view to an adjustment consented to an arbitration as to whether the oil tendered was prime or not. A. 0. Landry was appointed arbitrator on behalf of the plaintiff and Jules Aldigé on behalf of the defendant. The arbitrators differed in opinion. Aldigé’s report was that the oil was “ crude — made of slightly mixed seed— seed over-cooked. Oil not settled — not prime.” Landry’s report was: “I have critically examined the said oil. I do not hesitate to say that, in my opinion, it is fully prime and should be accepted as such.”
    In view of the disagreement between the arbitrators W. A. Lawler was appointed as an umpire in the matter. His report was: “I call the oil prime crude cotton-seed oil of the season. The oil is not properly settled — containing light settlings.”
    Upon the receipt by the two arbitrators of this opinion of Lawler’s they joined in a report as follows: “The umpire’s opinion, as above expressed, is in favor of tbe Standard Cotton Seed Oil Company and therefore makes the oil offered by the said mill a good tender.”
    The defendant company refused to accept or approve this report, calling in question the right of the arbitrators to express any opinion as to the conclusions of the umpire, insisting that his report was really in its favor.
    In the meantime plaintiff, after notice to the defendant, sold the oil at a loss for account of defendant.
    Plaintiff’s demand is for the price under the contracts subject to the credits resulting from the subsequent sales for account of defendant.
    Judgment was rendered in favor of defendant, and plaintiff appealed.
   The opinion of the court was delivered by

Nicholls, O. J.

A great many witnesses were placed upon the stand, and a great deal of testimony was taken as to whether there was any difference between “prime crude cotton-seed oil” and “ prime crude cotton-seed oil of the season,” as to what that difference was, and whether the former quality of oil was better or worse than the latter. Among the witnesses examined were the two arbitrators and Lawler, the umpire.

Plaintiff attempted to elicit from Lawler as a witness his opinion as to whether the oil tendered was a good tender under the contracts, but defendant successfully objected to his answering questions directed to that end on the ground that that was matter for the court, and not the witness, to pass upon, but none the less we think his opinion pretty clearly appears from the evidence actually received.

He said, among other things: “The difference, (between the two classifications of oils) is this: prime crude cotton-seed oil is made from seed in the early part of the season while the seed is nice and fresh. You can store away a thousand barrels of such oil in tanks and put it on the market in March, and you can take oil that is made from good sound seed and you will ñnd that there is a difference in the oils, both in color, taste, odor and refining properties in favor of the oil of the early months of the year- — -the first oil made.

The following questions and answers followed:

Q. A contract is made for oil on the 10th of January for oil delivered the last of January and the early part of February, the oil to be made under that contract and to be delivered on that contract, I ask you if an oil of that kind with good color, with proper smell, proper taste and with light settlings would be accepted under a contract for prime crude oil?

A. Well, I consider oil prime whether it has got settlings in it or not.

Q,. It is prime?

A. Yes, sir.

Q. In other words there is settlings in all oils?

A. An oil may be prime and good, but it may not be well settled.

Q. What I want to get is this: Here is a contract made on January 10 for prime crude oil delivered in the latter part of January and in the early part of February; now I want to know from you whether or not such oil, oil as you examined, whether or not that oil should have been receivable under that contract? ”

(Defendant’s counsel objected as above stated.)

Q,. This is your decision, Mr. Lawler, which I now hand you?

A. Yes, sir.

Q,. Now I want to know precisely what you mean — I can nob determine from that whether you determined that oil could be delivered under the contract or not?

(Defendant’s counsel objected to any statement of the witness that the oil is receivable under the contract, because the contract speaks for itself, and on the ground that if there is anything ambiguous in the contract it should be considered against the vendor.)

By the Witness: What I mean by “crude cotton-seed oil of the season,” when I mentioned those two samples taken from those two cars, I mean that it was oil that was perfect in every respect, and as good oil as could be made out of sound seed, at that time, properly handled.

By the Court: Do you mean that it was as good as prime crude cotton-seed oil?

A. It was not as good as oil that could be made out of seed during the months of October, November and December.

Q. Was it such oil as the people interested in the contract would call for?

A. I have never seen the contract.

Q. Well, the contract calls for prime cotton-seed oil on the 10th day of January, deliverable in the latter part of January and the first part of February. Here is the contract — I will read it to you. (Counsel reads the contract.)

A. This oil, if I remember aright, had a good deal of light set-tlings in it.

Q. That is your opinion?

A. No, sir; not my opinion merely. I should have considered it good delivery, but as the oil was not well settled — the contract not saying anything about well-settled oil — it is between the buyer and vendor to settle this matter.

Q. In other words, you did not decide whether it was a good delivery or not?

A. No, sir; I am not able to on account of the settlings.

Lapeyre, the refiner of the defendant, upon the stand as a witness, being asked the question whether there was a difference in the trade between “ prime crude cotton-seed oil” and “ prime crude cottonseed oil of the season ” answered, “ Well, there is only one quality of prime crude cotton-seed oil as I said properly manipulated and you can only get it at one season of the year, but those articles generally sell on their merits.”

From the testimony which we have copied and from that of others, it appears to us that “prime crude cotton-seed oil,” in the strict sense of the word, could not be manufactured as late as the middle of January or the beginning of February, and that any oil (no matter how well made nor from what kind of seed) made as late as that would fall under the term “ prime crude cotton-seed oil of the season,” but an examination of the contracts will show that in the contemplation of the parties thereto that the oil contracted for should be thereafter manufactured by the selling company at their mill and be delivered as made; if so the article with respect to which they were contracting was necessarily the hind of article which could be manufactured at that late time by the seller. The terms employed can not be held to have been used with reference to an oil already in existence. We think this view of matters determinative of the rights of the parties in so far as the designation of the article contracted for is concerned.

Lawler says of the oil tendered: “It is oil that was perfect in every respect, and as good oil as could be made out of sound seed at that time properly handled.”

We think the ease is with the plaintiff. We do not think the set-tlings spoken of by the witnesses affected to any extent the quality of theoih It was shown that all oils have them more or less, and we do not think it had more settlings than might have been reasonably anticipated by the parties.

We are of the opinion that the judgment is erroneous, for the reasons herein assigned.

It is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and. reversed, and it is now ordered, adjudged and decreed that the plaintiffs, the Standard Cotton Seed Oil Company, do have and recover judgment against the defendant, the Excelsior Refining Company, for the full sum of four thousand and forty-two dollars and fourteen cents, with legal interest from judicial demand and costs in both courts.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 11,624.
    W. C. Raymond et al., Commissioners, vs. Edward C. Palmer.
    Property mortgaged to secure paper held by a bank as collateral for a loan, which is adjudicated at tax sale to a person interposed by the mortgagor, though not primarily discharging the mortgage, may become the vehicle through which a prima facie title is passed to the bank, through the instrumentality of the person who is president, with the concurrence of the mortgagor.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      William S. Benedict, for Plaintiffs, Appellees, cites: 25 Cal. 135; Spelling on Priv. Corp., Vol. 1, p. 219, Sec. 197; Id., Secs. 199, 429, p. 459; 42 An. 618; 2 An. 211; 4 An. 416; 32 An. 962, 979; 33 An. 1370; 28 An. 460, 111; 34 An. 360; 29 An. 293; 46 An. 215; 35 An. 196, 276; 38 An. 74; 35 An. 743, 744; 34 An. 1140; 30 An. 853; 40 An. 514; 41 An. 425.

      Brown & Choate, for Defendant, Appellant, cite: 15 An. 676; 65 Cal. 76; 14 Mich. 164; 7 An. 617; 4 R. 278; 5 An. 550, 567; 6 La. 204; 39 An. 455; Bigelow on Estoppel, 471; 38 An. 102; 93 U. S. 335.

      Submitted on briefs March 12, 1895.
    Opinion handed down April 22, 1895.
   The opinion of the court was delivered by

Watkins, J.

The commissioners liquidating the affairs of the Louisiana Savings Bank and Safe Deposit Company represent that several certain squares .of ground in the city of New Orleans, of which the defendant is in possession as apparent owner, under an act of conveyance, bearing date 23d of May, 1877, are in truth and fact the properties of said corporation, and that it is necessary, for the liquidation and settlement of the affairs of the corporation, that they be judicially recognized and decreed the owners thereof.

The defendant’s answer is a general denial, and from a judgment in favor of the plaintiffs the defendant has appealed.

The averment of the plaintiffs’ petition is that although these properties.stand “in the name of Edward C. Palmer, yet the same was in truth and fact and is the property of said corporation of which petitioners are the commissioners for the purpose of -liquidating its affairs.”

They represent that said Edward C. Palmer has declared the said property to be the property of said late corporation in a certain inventory of the property and effects of said corporation, made by Andrew Hero, notary, “by order of court” in the cause entitled “ In the matter of the Louisiana Savings Bank and Safe Deposit Company, No. 10,046 on the docket of the Fifth District Court of the parish of Orleans, now transferred and numbered 882 of the docket of this Honorable Court ” — that is to say, the Civil District Court of said parish.

The act of sale from J. B. Guthrie to E. C. Palmer bears date May 3, 1877, the stated consideration therefor being one thousand dollars in cash.

That act of sale recites that the vendor acquired title by purchase at a tax sale made by the State tax collector on the 3d of June, 1876, for the unpaid taxes on said property for the year 1874.

The plaintiffs’ theory is that during the time Van Norden was president of the Savings Bank, he discounted with the bank his notes for thirty thousand dollars, and mortgaged the property in suit as security therefor.

That Van Norden was succeeded as president by the defendant, Palmer, and during his administration the property mortgaged was sent to sale for its delinquent taxes and purchased by J. B. Guthrie, at the instance and request of Van Norden. That Guthrie subsequently executed a conveyance to Palmer, likewise at the instance of Van Norden, who still remained, and remains a debtor of the bank.

That J. B. Guthrie was a person interposed to take title without paying any portion of the purchase price, and conveyed to Palmer without receiving any consideration therefor.

That the object and intention of these transactions were to vest a legal title in the bank of the property mortgaged — the mortgage becoming thereby extinguished by confusion.

On being interrogated as a witness for the defendant in reference to the tax sale Guthrie explained that when the property was advertised for sale for taxes Van Norden told him that he had no money, and requested him to attend the sale and buy it in,” and that he did so and took the title in his name. That subsequently Van Norden returned him the money he had expended and requested that he execute a deed to Palmer of the property, and in conformity with his request he executed the title which is in evidence to the defendant without'any consideration. That all of these transactions occurred after the defendant had become president of the bank.

Without looking any further into the evidence it would seem from the foregoing that Palmer’s deed was without any consideration passing from himself to Guthrie, or Van Norden, and it is a reasonable inference therefrom that Van Norden and Palmer had adopted this arrangement as a convenient mode of changing the form of the bank’s security, by investing it with title in lieu of a mortgage — the former being largely the debtor of the bank, and the latter being president at the time. Other testimony, however, tends to'confirm the correctness of that inference.

The attention of one witness being attracted to the deed from Guthrie to Palmer was requested to state how it was that Van Nor-den as well as Palmer had signed the act, and his reply was that Palmer came to his office with the tax title, with the act of sale thereto annexed, and ordered the sale to be made from Guthrie to him, stating that it was the property of the bank which he had bought in at tax sale in the name of Guthrie, and desired to have it transferred to Mm.” The witness further stated that he “suggested to Mr. Palmer that it would be better to have Mr. Van Nor-den sign it, so that he would be estopped from disputing the validity of the tax sale, and Mr. Van Norden being at the bank (he) took the act to him and he signed it as a witness, as in the act appears.”

Again:

Nothing was stated except that. No, sir; nothing beyond what I have said — that it was the property of the bank, bought in the name of Guthrie. Mr. Palmer himself gave me the data of this real estate to put in the inventory.”

Palmer, as a witness, emphatically denies that the conveyance from Guthrie to him was for the benefit of the bank, but he affirms that he took the title “in his own right and. for his own benefit.” And he, at the same time, admits that he gave Guthrie no consideration for the property, and explains that the moving consideration was an indebtedness of Van Norden.

This witness then proposed to make an explanation, but plaintiffs’ counsel objected on the ground (1) that under the general issue it is inadmissible to prove by parol evidence that an authentic act was false, or to show the want of genuineness of signature; (2) that the witness having been an officer of the bank at the time can not be permitted as a witness to shift his position to a contradictory one, so as to deny the legal effect of his acts and transactions, tending to vest a title in the bank, and sustain claim of ownership of the property in himself.

On the contrary, defendant’s counsel insist upon their right to contradict the recitals of a public inventory and show “ that its recitals are not correct.”

The court ruled that in the absence of allegation of fraud parol proof is inadmissible to contradict “any declaration contained in the inventory referred to in the plaintiff’s petition.”

The ruling of the judge was distinctly based upon the inventory which is referred to in the plaintiffs’ petition, and the quotation made from the petition shows it to have been an inventory which the defendant had caused to be made of the property and effects of the bank after it had suspended business and gone into liquidation upon his own representations. ■ And that it was made in a judicial proceeding to which he was a party, and of a date several years after the execution of the deed to him by Guthrie.

The point made, and the ruling of the judge, had more direct reference to the fact that the inventory formed a component part of the judicial proceedings in which it was filed than to the simple recitals it contained within itself as an ordinary inventory.

On this line of demarcation the argument of counsel on either side has taken an altogether different course.

We are clearly of the opinion that the ruling of the judge a quo was correct. While it is true, as a general proposition, that an inventory, abstractly considered, is a memorandum merely, made ex parte, and binding no one by its recitals; but when, in the course of a judicial proceeding liquidating the affairs of a suspended bank, its former president, acting as one of the commissioners, causes an inventory to be filed therein, and to be homologated, its recitals take on the character of judicial admissions that are binding on him in a subsequent litigation to which he is a party.

It appears from the records in evidence that in 1879, while Palmer was president of the Louisiana Savings Bank, that corporation was put into liquidation, and, by a decree of court, commissioners were appointed to liquidate and settle up its affairs. That, in pursuance of that decree, an inventory was made of the effects and property of the bank, and filed in said proceedings to serve as the basis of the commissioners’ bonds.

That subsequently, the commissioners filed their bonds predicated upon that inventory, and took and subscribed the oath required by law.

It further appears that the aforesaid inventory was executed on the 7th of July, 1879, and that it was homologated on the 22d of July, 1879, on the petition of the aforesaid commissioners, the defendant being one of them.

Amongst other items and entries in that inventory appear the following, viz.:

“Bills receivable.

“ W. Van Norden, his own order, 13th of May, 1871, at qne year, twenty thousand dollars, eight per cent, interest.

“W. Van Norden, his own order, 23d of May, 1868, two years, ten thousand dollars, seven per cent, interest.”

And in the margin opposite the foregoing entry is this remark, viz.:

“Interest paid to July 1, 1873, paraphed by E. G. Gottchalk, notary, May 13, 1875. Interest paid to July 1, 1873, paraphed by S. Maguer, notary, 22d of May, 1868.

“Real estate mortgaged in these acts, now in the name of E. 0. Palmer, under tax sale, and held for bank.”

And in another entry is given a full and complete description of the real estate which is called for by the recitals of the deed from Guthrie to Palmer; and that entry is prefaced by this heading, viz. :

“ Real estate hypothecated as security for the payment of the notes of W. Van Norden for thirty thousand dollars.”

These recitals of that inventory fully confirm all that was affirmed by witnesses at the trial, viz.: that the real estate which was mortgaged to secure the indebtedness of Van Norden to the bank was sold at tax sale and afterward transferred to Palmer and is now “ held for the bank.”

The notary who passed and authenticated the inventory testified to the genuineness of the signature of Palmer as it appears thereto and stated that it was signed in his presence.

He also testified that the inventory was filed in the record of the insolvency of the bank in the Fifth District Court.

In the light of this evidence it is difficult to see any possible de-fence to the plaintiff’s demand.

The claim of Palmer is fully met and answered by the recitals of the inventory he caused to be made under the circumstances detailed; in Folger vs. Palmer, 35 An. 743, it was held that the present defendant was bound by his previous judicial declarations as president of the bank that it was the owner of a note. In Henshaw vs. Stafford, 30 An. 853, it was held that a mortgagor can not buy in the mortgaged property at tax sale and divest the mortgage and acquire title free of incumbrance; and it must be equally true that such mortgagor can not, by such adjudication, through the instrumentality of an interposed person, convey an unencumbered title to another.

The defendant, Palmer, being present at the time of the tax sale of the mortgaged property, could acquire from the adjudicatee a prima facie title for the bank as mortgagee, with the concurrence of its debtor and mortgagor, which would at least estop and bar the assertion of title in himself.

. Judgment affirmed.


text:
    No. 11,658.
    Ruth and Henry Dibble vs. W. J. Leppert.
    A sale of property under Act 82 of 1884 can not be invalidated because of the fact that a part of the taxes for which it was sold were incorrectly assessed, another portion of said taxes having been regularly and legally assessed.
    Title to the property standing in the name of H. C. Dibble, as tutor for certain minors, not mentioning their names, furnishes a proper basis for an assessment of the property in the name of H. C. Dibble, tutor.
    Notwithstanding the word “tutor” is omitted from some of the assessments, it can not be doubted that the assessing officer had recourse to that title, and examined it preparatory to making same; and that same was taken, in good faith, as the basis of said assessments as made.
    APPEAL from the Civil District Oourt for the Parish of Orleans. Theard, J.

      Frank L. Richardson and Kernan & Wall, for Plaintiff, Appellant, cite 38 An. 802; 45 An. 1370; 46 An. 174; 148 U. S. 182.

      Dinkelspiel & Hart, for Leon Fellman, actual Defendant, Appellee, cite 46 An. 529; 43 An. 789; 40 An. 143; 41 An. 766; 37 An. 356, 417; 27 An. 398; 26 An. 586.
    Argued and submitted February 13, 1895.
    Opinion handed down March 11, 1895.
    Rehearing refused May 6, 1895.
   The opinion of the court was delivered by

Watkins, J.

Ruth Dibble, a major, and Henry 0. Dibble, a minor represented by his father as natural tutor, as the sole surviving issue of the marriage of their father with Sarah M. Dibble, née Chappell, deceased, allege themselves to be the joint owners of a certain lot of ground with the buildings and improvements thereon, “ designated as the half nearest to Bacchus, or Baronne street, or original lot No. 6 of square No. 95 of Faubourg Laceouse, measuring thirty (30) feet, French measure, on Erato street, by one hundred and twenty (120) feet, F. M., in depth, but now known as lot No. 11 of square No. 252, comprised within Baronne, Dryades, Erato and Thalia streets,” by inheritance from their maternal grandmother, she having purchased same during her widowhood from Edward Tomatis, by notarial act passed before E. Bouny, notary, on the 23d of January, 1861, and duly of record in the book of conveyances for the parish of Orleans.

As owners, they allege themselves to be entitled to the possession and enjoyment of said property, but the defendant occupies the same and refuses to surrender it, notwithstanding due amicable demand and placing him in default — alleging that he holds and possesses said premises for Leon Fellman, his lessor, residing in the city of New Orleans.

Petitioners then allege that, if it should appear that said lessor claims to own said property by virtue of an act of sale from the State of Louisiana, through James D. Houston, State tax collector, “ said sale is null and void for want of due notice to petitioners; ” and, if he shall claim that said sale was made in pursuance of Act 82 of 1884, “ the said sale is null and void, in so far as it authorizes the sale of petitioners’ property without notice, and violates Article 210 ofsthe Constitution of the State, and the fifth amendment of the Constitution of the United States, for this, that this act authorizes sales for taxes without due process of law.” They further allege that said pretended sale is null and void for want of assessment against said property and against petitioners. That no taxes have been legally assessed against said property, but should any be found due and owing, petitioners are willing to pay whatever may be found due.”

Their prayer is that they be recognized and decreed owners of said property- and entitled to possession thereof, and that the defendant be condemned to pay them rent, therefor at the rate of fifty ($50) dollars per month. . And in the alternative that if the defendant or his lessor, Leon Fellman, should set up any rights under said tax sale, their further prayer is that such tax' sale be annulled and revoked for the causes in their petition assigned.

W. J. Leppert was first cited, and thereafter Leon Fellman, who appeared by way of an alleged exception, though in-reality an answer, in which he averred:

1. That he is the owner of the property claimed, which he acquired at tax collector’s sale made on the 29th of April, 1885, in the forced collection of taxes due on said property for years prior to 1879,” under and in pursuance of Act 82 of 1884.

2. That Henry 0. Dibble has no right or capacity to represent his minor son, “ for the reason that if he ever qualified as his natural tutor in the courts of this State, having departed from this State and no longer residing here, and not having resided here for many years, he has forfeited the tutorship.”

3. That plaintiffs’ petition discloses no cause of action.

4. That, as a condition precedent “to the prosecution of this suit, a tender of the amount paid, with twenty (20) per cent, added, and interest, by respondent for the purchase of said property at tax sale should have been made, which was not done.”

Wherefore they pray that this suit be dismissed at plaintiffs’ cost.

On trial these exceptions were referred to the merits, and the defendant, Fellman, answered and set up title in himself as owner under and by virtue of the aforesaid tax sale, and the notarial conveyance to him subsequent in date and duly recorded, alleging his possession and occupancy thereunder ever since, and basing the plea of three years’ prescription thereon.

He then affirms “that all the formalities of law were cofnplied with leading up to said sale and notarial act; and that the said act, under its terms and by virtue of the law, is conclusive evidence of the recitals therein contained, in so far as the assessment of the property, and the fact that the taxes were not paid, are concerned.”

He alleged that the amount of the price of adjudication of said property to him was four hundred dollars — an amount sufficient to discharge all the State taxes which were due thereon prior to the 31st of December, 1889, for which it was sold.

He further avers “that, in accordance with law and with the assumption contained in said act, he paid the State and city taxes from the year 1880 to 1885, both inclusive, which were due at the time of said sale and were not covered thereby” — making the total sum he expended in purchase price and taxes equal to one thousand two hundred and ninty-six dollars and twenty-eight cents, in capital alone.

He avers that since said sale he has kept all the taxes paid up, has regularly insured the property, and has placed thereon valuable and permanent improvements amounting to the further sum of three thousand three hundred and forty dollars and twenty-five cents.

On the trial there was judgment in favor of Leon Fellman, substituted defendant, affirming the validity of the sale and adjudication to him, of the property in question, under Act 82, of 1884; and the plaintiffs have appealed.

The insistence of Fellman is, that the judgment should be affirmed; but that, if for any cause it should be reversed, the decree of this court should condemn the plaintiffs to reimburse him the sum of four thousand six hundred and thirty-six dollars and fifty-three cents, the amount of his expenditures.

Attending to the pleas filed in limive, first, our opinion is, that, the father having been duly appointed, qualified and confirmed as natural tutor for his minor children while they — father and children —resided in this State, in conformity to our law, his subsequent removal with his children to California, did not divest him of his "trust, as in such case the father does not become expatriated quoad hoc; second, a cause of action is clearly and distinctly stated; third, the Constitution does not require a previous tender of the price paid at tax sale, as a condition precedent to the institution of action to annul a tax sale; as it provides only that “no sale of property for taxes shall be annulled for any informality in the proceedings, until the price paid, with ten per cent, interest, be tendered the purchaser.” Const., Art. 210; Breaux vs. Negrotto, 43 An. 426.

If, indeed, that provision applies to this kind of sale.

On the other hand, we are of opinion that the prescription of three years, under act of 1874, is not applicable to a case like this, where one of the badges of nullity propounded by the plaintiff is that of an illegal assessment. Augusti vs. Lawless, 45 An. 1370; Edwards vs. Fairex, 47 An. 170; Borrow vs. Wilson, 39 An. 403.

On the main issue, we have the following points to consider, viz:

1. That the sale was null for the want of due notice to petitioners, •as required by Art. 210 of the Constitution.

2. That it was violative of the fifth amendment to the Constitution of the United States, because it was made without due process of law.

3. That it was “ void for want of assessment of said property and against petitioners.”

I.

The first of these propositions we examined and held to be untenable, in Henderson vs. Ellerman, 47 An. p. 309, and in so doing we rested our conclusions on the authority of In the matter of Orloff Lake, 40 An. 142, and In re Douglass, 41 An. 765, and Martin vs. Langenstein, 43 An. 791.

From those cases it will appear that notice of sale falls within the fifth paragraph of the section of the statute of 1884, which enumerates the non-essential requisites of a tax sale, of the performance of which the tax deed is declared to furnish conclusive evidence, viz.:

5. That all of the prerequisites of the law were complied with by-all of the officers, from the assessment up to and including the execution and registry of the deed to said purchaser,” etc.

The provisions of the act that appertain to the sale are the following, viz.:

“ That it shall be the duty of each tax collector * * * to immediately advertise for sale, at public auction, all property which has been heretofore, or which may hereafter be bid in for the State, under the provisions of existing laws, and all property on which there remains unpaid taxes due the State prior to December 81, 1879,” etc. Sec. 1 of Act 82 of 1884.

No previous notice of any kind is contemplated or required by the terms of that act, except that which is furnished by the advertisement of the sale. In the Henderson case we stated the reason and authority for holding that such notice was legal, and we need not repeat them here.

We also cited and reviewed the decisions of the Supreme Court on the subject, and showed that they were in exact accord therewith.

We also quoted Martin vs. Langenstein, 43 An. 791, to show that the case of Breaux vs. Negrotto, 43 An. 426, did not apply — it being a case which involved a sale made under Act 77 of 1880, in the col-ection of taxes of 1880 and 1881.

Act 82 of 1884 is predicated on the constitutional ordinance for the relief of deiinquent tax-payers, and not under the body of the Constitution itself; consequently, Art. 210 has no applicability to the sale under consideration.

II.

The second of these propositions was made a question expressly in the Lake case, and same was decided adversely to the plaintiff's present contention. In that case the point was made that Act 82 of 1884 is unconstitutional on the following grounds, viz.: * * * “ because it provides for the divestiture of title to property without due process of law;” and in response thereto the opinion declares:

“ That such proceedings as those provided by this act constitute ‘ due process of law,’ in the sense of the Oonstitution, has been so often decided that it may be classed as an elementary principle in matters of taxation.” In re Lake, 40 An. 148.

III.

The third proposition is that the sale of the property was void because it was not assessed against the petitioners,” that is to say, as their property by inheritance from their mother, Mrs. Sarah M. Chappell, wife of Dibble.

The fact is and the record shows that the grandmother of petitioners, Mrs. Louis W. Chappell, purchased the property from Edward Tomatis in 1861, during her widowhood, and prior to the marriage of her daughter with Henry C. Dibble, the father of the plaintiffs. It also appears that Mrs. Sarah Chappell, wife of Dibble, conveyed same to C. F. Berens on June 15, 1872, and that it stood in his name on the conveyance records until the 14th of April, 1873, when the title was retroceded to H. C. Dibble, tutor, without mention being made of the names of the minors for whom he was tutor other than the issue of his marriage with “ the late Sarah Marshall Chappell.”

From a certified extract from the assessment rolls it appears that the property was assessed on the roll of 1876'in the name of “H. C. Dibble, tutor.”

In 1877 and 1878 in the name of H. C. Dibble.

The tax deed shows that the taxes for which the property was sold were of the years 1873, 1875, 1877 and 1878, aggregating one hundred and twenty dollars and fifty cents due the State, and for taxes of the years 1874, 1875, 1876, 1877, 1878 and 1879, aggregating two hundred and sixty dollars and fifty cents due the city of New Orleans. That said taxes were assessed in the name of H. C. Dibble for the years 1873, 1874, 1875 and 1878, and in the name of H. C. Dibble, tutor, for the year 1876. The price of adjudication to Leon Fellman was four hundred dollars, same being sufficient to discharge all the taxes against the property, State and city, prior to December 31, 1879.

The certificate of tax research shows that the property was assessed in the name of Widow Louis W. Chappell in 1871, to Charles F. Berens in 1872, to Judge H. C. Dibble, tutor, in 1873, to H. C. Dibble in 1874, to H. C. Dibble in 1875, to Henry C. Dibble, tutor, in 1876, to Henry C. Dibble, tutor, in 1877, to H. C. Dibble in 1878, 1880, 1881, 1882, 1883, 1884 and 1885.

At the tax sale made to Leon Fellman on the 29th of April, 1885, under Act 82 of 1884, in satisfaction of taxes due prior to December-31, 1879, the price of adjudication was attributed thereto, and the purchaser assumed as part of the purchase price the current taxes of the intermediate years, to-wit: those of 1880, 1881, 1882, 1883, 1884 and 1885, which he has since paid. Since the date of his purchase the property has been regularly assessed to him, and he has paid all the taxes due thereon.

The certificate of research further shows that the taxes of 1873, 1874, 1875, 1876, 1877 and 1878 were “paid by sale made under Act 82 of 1884.”

A certificate from the tax collector is to the same effect.

From the foregoing it appears that the property was assessed to-H. 0. Dibble, tutor, for the years 1873, 1876 and 1877; and, consequently, those were good and valid assessments against the petitioners, as the title to the property stood in that name during those years.

Sec. 3 of Act 82 of 1884 provides that the tax collector’s deed of sale shall be conclusive evidence inter alios “ that all of the prerequisites of the law had been complied with by all the officers, from the assessment up to and including the execution and registry of the deed to said purchasers. * * * If only a portion of the taxes for which the property is sold are proved to have been paid, the sale and title to the purchaser shall, nevertheless, be good and valid, the same as if all the taxes for which it is sold had not been paid.”

In the matter of Orloff Lake, 40 An. 142, the opposition of Leslie was inter alios predicated upon the following ground, viz.:

“Because the property was not assessed for any of said years 1872 to 1878 in the name of Mrs. H. P. Harrison, or in the name of the estate of Mrs. H. P. Harrison, or in the name of D. C. Harrison, the owner thereof during said years; but that same was illegally assessed in the name of John Boylan, who was never the legal owner of said property.”

With regard to the foregoing ground of objection, our opinion says:

“ Reference to the paragraph we have quoted from the petition of the opponent will disclose that he does not allege that no assessment was made at all, but that he does allege that ‘ the property was not assessed in the name of Mrs. H. P. Harrison,’ etc.; that same was ‘illegally assessed in the name of John Boylan;’ and that ‘it was illegally and insufficiently described on the assessment rolls,’ etc. The opponent does not allege that the property was not subject to taxation, or that all the taxes for which the property was sold had been paid. Of these ingredients the act of sale furnished prima facie evidence; and not being assailed for the want of either, it is full proof of their existence.”

Except as modified by our opinion in Augusti vs. Lawless, 45 An. 1730, wherein it was held that the description of the property in the assessment was insufficient to identify the locus in quo; and in Edwards vs. Fairex, 47 An. 170, wherein it was held that an assessment continuously made in the name of a man long since dead was illegal and void, the principles announced in the Lake and Douglass cases have been steadily adhered to and maintained by this court.

The assessment of the property in controversy was made in 1873 in the name of H. 0. Dibble, tutor. In that year it was retroceded by Berens to H. O. Dibble, tutor, for the minors of his marriage with Sarah M. Ohappel, who was then dead. That assessment was perfect and valid. From the assessments of 1874 and 1875 the word “tutor” was omitted; but in the assessments of 1876 and 1877 it was again included. In 1878 it was again omitted. Inasmuch as there are three annual assessments made against H. 0. Dibble, tutor, and, therefore, perfectly legal, and no portion of the taxes of those years was shown to have been paid prior to the sale on the 29th of April, 1885, the same is likewise perfectly legal and valid. The apparent invalidity of the assessments of three of the years, taxes under which formed an element in the sale proceedings, can not invalidate the sale thereunder.

In Citizens Bank vs. Augusti, 46 An. 520, we said:

“The law does not contemplate that the assessor shall test titles in order to make assessments of property.

“ A prima facie title suffered to remain unquestioned on the official records, taken in good faith as a basis for the assessment, is a compliance with the requisition of the statute regarding assessments,”

In this instance the title stood in the name of H. 0. Dibble, as tutor for the minors of his marriage with the late Sarah M. Cbap-pel. Can it be doubted that the assessing officers examined that title preparatory to making those assessments and that it was “taken in good faith as a basis for the assessment ” as made? It can not.

On the law and the facts, we are of opinion that the defendant Fellman’s title is good and that the judge a quo properly rejected the demand of plaintiffs.

Judgment affirmed.


author: MgEnery, J.

text:
    No. 11,601.
    George F. Herber vs. Philip Thompson.
    A mortgage executed, in. favor o£ a nominal mortgagee for the purpose of being used as collateral security is not extinguished by the payment oí the debt which it secured. The mortgagor can reissue it to another creditor to secure another one o£ his debts. If the contract is not such as it purported to be, it will not be invalid on that account if it contains all the essentials of another contract, which may be enforced. Thus, in a contract to secure a debt by the delivery of a collateral, the declaration that the pledgee is the owner, when the essentials'of a sale are wanting, will not prevent the contract from being construed as one of pledge when all the essentials of this latter contract are present.
    A party who already holds pledged property to secure his debt may become, by consent of the parties and his own, the detainer of the pledge for another creditor of the debtor, after the expiration of the contract of pledge, securing his own debt.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Walter B. Sommerville and Charles J. Theard for Plaintiff, Appellant:
    The terms, the language, or the form, used by the parties, and even the name which they may choose to give to a contract, can not change the real character of the contract.
    The pledgee may be said to be the owner of the thing pledged, although not owner in the absolute sense of the word. To the extent of the debt, he is for all practical purposes the owner of the thing pledged. He can not, under any circumstances, be compelled to return it, before he has received the whole payment of the principal as well as the interest and costs. C. O., Art. 3164. Renshaw vs. His Creditors, 40 An. 37; Webre, Syndic, vs. Beltran, 47 An., p. 195.

      The pledgee may assert his pledge, notwithstanding the fact that he may have claimed the ownership of the thing pledged.
    Wolf vs. Wolf, 12 An. 529, and authorities there cited; Herold vs. Stockwell, 32 An. 919; Mechanics’ Building Association vs. Ferguson, 29 An. 548, and authorities there cited; Blouin vs. Liquidators, 30 An. 717; Insurance Co. vs. Lozano, 39 An. 321, and numerous authorities there cited..
    It is essential to the contract of pledge that actual delivery of the thing given in pledge be made to the creditor. But such delivery is only necessary with respect to corporeal things; as to incorporeal rights, the delivery is merely fictitious and symbolical. C. C., Arts. 3152, 3153.
    The delivery need not be made to the creditor himself; delivery to a third person agreed on by the parties is sufficient. C. C., Art. 3162.
    Conger, Executor, vs. City, 32 An. 1252; Weems vs. Delta Moss Co., 33 An. 973; Jacquet vs. His Creditors, 38 An. 866; Woodward vs. Railway Co., 39 An. 566; Peters et al. vs. Guano Co., 42 An. 694; Citizens Bank vs. Janin, 46 An., page 995, Succession of Lanaux, Id. page 1036.
    Where there was only an agreement to pledge certain collaterals, but no actual delivery at the time, to the creditor or to a third person agreed on by the parties, the contract may be perfected by delivery to the creditor at a subsequent period. By such subsequent actual delivery, not only is the pledge perfected from the date of delivery, but it stands good from the date of the contract. C. C., Art. .3144.
    Where promissory notes secured by an act of mortgage, but executed and issued only for use as collateral security, have been returned to the maker after payment of the indebtedness which said collateral was intended to secure, the maker may again reissue .same to any other creditor of his, either before or after maturity, and under like conditions as he might transfer or pledge notes primarily executed for value. Levy vs. Ford et al., 41 An. 873, and the numerous authorities cited by the court.
    No creditor can invoke the revocatory action and sue individually to annul any contract made before the time his debt accrued. C. C. 1993; 29 An. 513.

      A contract must be shown to be both simulated or fraudulent, and injurious to the creditor complaining before it can be set aside. If one of these requisites does not exist there is no fraud. The intention to defraud must be proved. 18 La. 388; 2 Rob. 94; 1 An. 42; 1 Rob. 527; 11 Rob. 493, 543; 12 An. 531.
    An unfair preference, in the nature of a sale or mortgage, given by the debtor to one of his creditors for an existing debt, is presumed to be fraudulently given. This presumption extends to such contracts only as were given and inscribed within three months previous to the failure of the debtor. C. C. 3359, 3360.
    “If a bill is accepted on the promise that a mortgage will be given to secure the acceptor, and it be subsequently given, if the mortgagor fails the date of the promise will be considered in inquiring whether it should be set aside.” 2 N. S. 88.

      Wm. S. Benedict, Hugh C. Cage and Robt. C. Dugué, Attorneys for Third Opponents, Appellees:
    Fraud and simulation can only be proved by indirect or circumstantial evidence, and when a prima facie case has been made out and sufficient facts shown to throw doubt on the validity and good faith of a transaction, the burden is shifted to the parties who know the truth and must establish it. 33 An. 1058, 1072; 38 An. 813.
    When notes secured by mortgage return into the hands of the maker, the mortgage becomes extinguished by confusion. Their subsequent reissue, before or after maturity, can not revive the mortgage, particularly to the prejudice -of third persons, who have acquired rights against the property before such reissue. 4 R. 416; 19 An. 26; 20 An. 263.
    A mortgage is looked upon with suspicion when the alleged holder, instead of using his own name to enforce it, uses that of a person interposed, his office boy, and who, when the mortgage is attacked as simulated, fraudulent and void, files technical exceptions through the same office boy, thus attempting to defeat the action. 33 An. 1058.
    When a litigant refuses or fails to put upon the stand a person present in court, one of the principals in the transaction which is attacked as simulated and fraudulent, and who knows all the facts, the presumption is that the testimony of that person would be destructive of his case. 33 An. 1058, 1072; 38 An. 813.
    A plaintiff who does not claim all he is entitled to loses the overplus. C. P. 156.
    Pledges are stricti juris. Delivery and possession are of the essence of a pledge. The debtor’s property is the common pledge of his creditors, and no one can acquire a preference over it without the observance of the rules and forms of law.
    When a third person is agreed upon to hold property, which is claimed to have been pledged, the pledge is not good, as such, when the third person does not know and agree to hold it as a pledge. If he only agrees to hold it for another, as the property of that other, with or without the knowledge and consent of its former owner, that does not constitute a pledge.
    Argued and submitted March 1, 1895.
    Opinion handed down March 11, 1895.
    Rehearing refused May 6, 1895.
   The opinion of the court was delivered by

MgEnery, J.

This case was before us in February, 1894, and is reported in the 46th Annual, p. 191. We refer to that case for a full statement of the pleadings. It will be seen by the pleadings that W. S. Parkerson is the real plaintiff, and Herber was the nominal plaintiff interposed by Parkerson. This proof has no bearing on the case other than as one of the links in the chain of evidence to prove the simulation of the mortgage..

The issues before us on this second appeal are whether the mortgage is simulated and fraudulent, having been given by the mortgagor when insolvent; and, if a valid mortgage, was it paid or extinguished so that it could not be revived; whether Parkerson, being the attorney of Thompson, and knowing of his insolvency, could accept the mortgage notes as security for a debt due him by his client.

It follows, as a matter of course, if the mortgage under which Parkerson purchased is null, the adjudication to him is also null and void; and that if it is a valid mortgage he was not required to pay in cash the price of the adjudication, as it was less than his debt. Hence, there is no necessity for discussing these points presented by third opponents.

The facts show that the mortgage was executed to a nominal mortgagee, for the purpose of being used as collateral security upon which to raise money. It was placed in the hands of and pledged to Captain Murray as collateral security.

There is jlo question as to the fact of the large indebtedness of Thompson to Murray and that the mortgage notes were placed in his hands as collaterals. The mortgage being thus executed for the purpose of being used as collateral security, it is of no consequence that there was no consideration immediately passing from the mortgagor to the nominal mortgagee. Its use as collateral security gives it value in the hands of the holder the same as though payable to one’s own order and by him endorsed and the notes secured by the mortgage transferred to a third party for value.

The evidence does not show that Thompson, the mortgagor, was insolvent. He had asked for a respite from his creditors, and the schedules show a very large excess of assets over liabilities. Respite is evidence only of temporary embarrassment, and often is asked by solvent persons as an indulgence from creditors. There was some'attempt to prove that the mortgage was executed for the purpose of securing the mortgaged property from the creditors of Thompson. The testimony is only of loose declarations, such as that the lessee of the property had been told by Thompson and Oapt. Murray that the mortgage was all right and that he would not be disturbed during the period of the lease, and a statement of doubtful import that Moore, a debtor of Thompson, had stated that the mortgage was for Thompson’s benefit through the- interposition of Parkerson, and that Thompson had improved the place and stocked it after the execution of the mortgage.

Moore’s statement is not definite and was evidently given in a manner which was in no way intended to affect the validity of the mortgage, as he had signed an agreement in which this mortgage was recognized as valid and binding. There is some effort to show as a .reason for the simulation that in the act of pledge of Thompson to Parkerson it was alleged that at the time the mortgage notes were in the hands of Thomas Sefton, president of the Home Insurance Company, and as a fact they were not deposited with him as collateral security by Murray, to whom they were first pledged. S eft on’s testimony is not positive as to the deposit of the collateral, while that of Murray, and the attendant circumstances, leave no doubt of its having been deposited in the insurance company, with other collaterals, by Murray. We do not appreciate the object of this testimony as to the pledge of the note to Sefton, unless it is intended to impeach the contract of pledge, because Sefton was not the party agreed upon as the detainer of the pledge. In this view of the case, the matter will be hereafter referred to.

What has been said about the execution of the mortgage at the time Thompson was alleged to be insolvent will apply to the securing of Parkerson’s debt by Thompson. He was not insolvent, as the record shows. His embarrassment only made it the more imperative upon Parkerson, the attorney, to secure his fee, and other indebtedness. The amount due Parkerson for services rendered and to be rendered, money advanced on account of litigation, and money loaned to Thompson, and debts paid for him, has not been seriously doubted. We find no evidence in the record to dispute any of the items which he claims Thompson owes him. The mortgage was valid, and the debt due to Parkerson by Thompson was a legal and valid obligation.

It is also shown that Captain Murray, who held the notes, was paid in full, all indebtedness for which the mortgage notes were held as collaterals.

Murray’s debt was unquestionably extinguished, but the collateral mortgage notes could again be used as collaterals to secure another indebtedness, whether the notes had matured or not, or whether they had come back in the hands of Thompson, and by him delivered to Parkerson, or were directly delivered to Parkerson by Murray, whose debt had been extinguished. This is no longer an open question, having been definitely settled in the case of Levy vs. Ford, 41 An. 878.

Was Parkerson the legal holder of the note to secure an indebtedness to him? On this point the record shows the following facts:

In the summer of 1890, Parkerson demanded of Thompson security for his fee. Certain mortgage notes were to be given to Parkerson. Thompson failed to deliver them, as agreed to between him and Par-kerson. On November 24, 1890, Thompson confessed judgment in favor of Parkerson, which was proved up, and judgment rendered in accordance therewith. Execution issued on this judgment, and the net sum of eight thousand six hundred and thirty-eight dollars and thirty-five cents realized, and credited on the execution. Parker-son, according to his statement, gave Thompson credit for the amount. In March, 1891, Parkerson insisted upon security being given for his debt. The mortgage notes which Thompson had agreed to deliver to Parkerson were on the Waubun plantation, which Thompson had given to Oaptain Murray, as collateral security for a large debt due by Thompson to him. Oaptain Murray held both these notes and the mortgage notes in controversy, as col-laterals. On March 2, 1891, Parkerson, Murray and Thompson entered into an agreement, in which it was stipulated that the mortgage notes on Grand Oouteau plantation, in St. Landry parish, then pledged to Thomas Sefton, to which we have heretofore alluded, were the property of Parkerson, and that after the payment of the amount for which they were pledged, and the crop on the Waubun plantation should be made and realized, the mortgage notes should be delivered to Parkerson. On the reverse of the document, Par-kerson signed a statement agreeing that the mortgage notes should not be claimed by him until the making and realizing the second crop on the Waubun plantation, provided Murray would advance for the crops of 1891 and 1892 on said plantation. This agreement is explained in Parkerson’s testimony when he says, at that date, March Y, 1891, Murray had no interest in the mortgage, as he loaned the note to him in order to enable him to secure the advances upon the Waubun plantation. It is recited in the agreement to deliver the notes to Parkerson, that they were in the hands of Sefton, president of the Home Insurance Company. Sefton loaned to Moore, owner of the Waubun plantation, and to Murray, to raise crops on said plantation, twenty-five thousand dollars. The note given for the sum was executed by Moore and endorsed by Murray. The money advanced was paid to the insurance company. Murray again got possession of the note.

On 14th January, 1892, Thompson, Moore, Murray and Parkerson entered into an agreement by which John T. Moore assumed the indebtedness of Thompson to Murray in the amount of thirty thousand dollars. Oaptain Murray was to hold the second mortgage note on the Waubun plantation as his property to secure Moore’s indebtedness to him. Murray agreed, after the settlement was effected, to deliver to Philip Thompson whatever collaterals he had belonging to him. Parkerson agreed to do all in his power to secure advances for the Waubun plantation so long as Murray continued to advance, and consented that the first mortgage on Grand Oouteau plantation, pledged to Thomas Sefton, should be used as collateral security. By this agreement the debt of Thompson to Murray was extinguished. On February 25, 1893, Murray and Thompson called at Parkerson’s office and delivered to him the mortgage notes on the Grand Oouteau plantation.

In his reasons for judgment for the intervenors and third opponents, the District Judge says, “ prior to March 2, 1891, there was no agreement between Parkerson and Murray to pledg e the mortgage notes on the Grand Oouteau plantation, or that Murray should hold them, after the payment of his debt, as custodian for Parkerson, as pledgee. That on said date the notes were held by Murray — pledged to him by Thompson — and that the act of March 2, 1891, was not an act of pledge in accordance with the requirements of the Code. That from the date of the agreement between Parkerson, Thompson and Murray, March 2, 1891, to January 14, 1892, the notes were pledged to Murray for a debt of Thompson; and that by the agreement of 14th January, 1892, the debt was extinguished and paid, and the note, both by the agreement and the operation of law, became the property of Philip Thompson, and that the mortgage notes could not thereafter be reissued.”

Ooneeding that the agreement of March 2, 1891, did not operate as a pledge of the note to secure Parkersou’s indebtedness, there was no seizure of the notes while they were in the hands of Murray, and no right adverse to Parkerson was asserted upon them. We can therefore, eliminate the agreement from the case, and consider only the delivery of the notes to Parkerson, either by Murray or by Thompson, it is immaterial who delivered them. There was, when the notes were delivered to Parkerson, a strict compliance with every requisite for a perfected pledge. The mortgage was executed to be used as collateral security to borrow money. The debts for which it was pledged became extinguished, and necessarily the security became the property of Thompson. Ho owed a debt to Parkerson, and under the authority of the case of Levy vs. Ford, already cited, Thompson could reissue the mortgage notes to him as collaterals.

It is urged as reasons for annulling the act of mortgage that Par-Person obtained a confession of judgment from Thompson, and proved up the same, and issued aji. fa. on the same; that he defended suits against Thompson, and fought for delay; that Thompson and Murray both said the act of mortgage was a simulation; that the nominal plaintiff is the office boy of Parkerson, and that Parkerson obtained an unfair preference over other creditors, as the mortgagor was insolvent to his knowledge.

These facts, when shown, are of such a conspicuous character as to discredit the mortgage, and force the plaintiff to proof of its reality. There is no doubt whatever that the mortgage was real, and executed for the purpose of raising money, and that it performed the offices for which it was executed. Parkerscn’s debt was real, and he had the right to demand security for the same. And after the mortgage notes had done service with one debtor, as collaterals, the creditor had the right to reissue them to another debtor to perform the same service. The record does not show facts sufficient to justify a conclusion that Thompson was insolvent when the notes were pledged to Parkerson. We know of no law which prevents a party who holds pledged property from agreeing to hold the same by the consent of creditor and debtor for the former after the ex-tinguishment of his own debt. The fault found in the document of 2d March, 1891, is that it does not use the word “ pledge,” but instead of it says that Parkerson is the owner of the notes. There is no inconsistency in claiming as pledgee under this contract, as the pledgee is during the existence of the pledge qualified owner of the pledged property. If the contract is not such as it purports to be, it will not be invalid on that acconnt if it contains all the essentials of another contract which may be enforced. Rhodes vs. Rhodes, 10 La. 85; Wolf vs. Wolf, 12 An. 529.

The written contract of March 2, 1891, contains at least an agreement to pledge. The parties, Thompson, the pledgor; Parkerson, the pledgee, and Murray, the custodian, treated the contract as one of pledge. Murray declared that after the 2d March, 1891, he had no interest, under his former contract of pledge with Thompson, in the notes, and recognized Parkerson’s right to control the same, and in the contract or agreement of January 14, 1892, all parties to it recognized Parkerson’s right to control the notes and to designate their use as collaterals for supplies. Art. 8144 of the Oivil Oode says: “ If at the time of the contract the debtor had not the ownership of the thing pledged, but has acquired it since, by what title soever, his ownership shall relate back to the time of the contract and the pledge shall stand good.” At the time this contract was made the notes were pledged to Thomas Sefton, out of the control and possession of Thompson. The evidence shows he afterward acquired the possession or control of the notes and delivered them to Parkerson in pursuance of the original contract. The contract of pledge was then completed by the delivery of the thing pledged, and it related back to the time of the first contract and in the •language of the article pf the Code, the pledge shall stand good.

The intervenor’s suits were filed more than a year after this contract of pledge, and Art. 1987 of the Code has application as a bar to the demand of intervenors to set aside the mortgage, because the pledge of the same was made to Parkerson, who knew of the insolvent condition of Thompson.

There has been some confusion in the ease by construing the collateral obligation as a primary one, and concluding that it was extinguished by payment and became inert, and no longer an object of further use. Under adjudication in this State, the distinction is clearly drawn. The mortgage having been originally intended for use as the means of borrowing money, by pledging it as collateral security for a primary obligation, the extinction of the latter leaves the collateral mortgage still in existence, subject to be employed in further negotiations. The mortgagor could virtually execute another mortgage on the property for the same purpose and pledge the mortgage notes. Why then cause the useless expense and delay when the mortgage, already executed, can perform the desired service? In fact, if it has not been executed on the mortgaged property, it is not extinguished and will live, unless it expires by prescription, as long as the mortgagor chooses to reissue it. There is no reviving of the mortgage, as it has never been extinguished. Hence a pledgee of such a note as collateral security is entitled to the extent of his debt to all the the rights of a bona fide holder, and is for all practical purposes the owner of the note. Mechanics’ Building Association vs. Ferguson, 29 An. 548.

This question as to the reissuing of a mortgage note, used as collateral security when returned to the maker after the payment of the mortgage secured by it, is fully discussed in the case of Levy, Jr., vs. Ford, 41 An. 873. In that case the court held that when the debt was paid and the collateral returned to the maker, he could reissue same to any other creditor, either before or after maturity, under the same conditions that he might transfer or pledge a note primarily executed for value.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that the demand of intervenors and third opponents be dismissed at their costs in both courts.


author: McEnery, J. Breaux, J.

text:
    No. 11,638.
    Succession of Mrs. Widow Julie Couder.
    On the motion to dismiss.
    Where a testamentary executor files his fiual account and tableau of distribution, and asks that the funds be distributed and the instituted heirs be placed in possession of the property bequeathed to them, an appeal from a judgment thereon, which only orders the funds distributed, will be sustained. Where subsequently a petition is filed by the testamentary executor alleging the succession to be still under administration and praying for a judgment putting the heirs in possession, which is rendered, an appeal from such a judgment by same parties who took the first appeal will be sustained. The judgments are distinct and on separate matters.
    On the Mbkits.
    When the heirs take from the succession of their mother as legatees, the co-heirs are entitled to citation to establish or oppose the executor’s account in which lie, the executor, applies to deliver the husband’s property in satisfaction of the legacies left by the mother, before making any proof that there was a translation of the property to the latter.
    The account could not be made binding upon the heirs on a judgment of homolo-gation made without citation.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Henry P. Dart, for Plaintiff in rule to annul will, Appellants, cites: 6 La. 225; 11 Rob. 120; 30 An. 703; 34 An. 117; 29 An. 381; C. C. 1184-6; 46 An. 265.

      William E. Murphy, for Testamentary Executor, defendant in rule, Appellee, cites: 40 An. 273; 10 Rob. 188; 18 An. 263; 30 An. 1138.

      ON Motion to Dismiss.
    Submitted on briefs December 10, 1894.
    Opinion on motion handed down January 2, 1895.
    On Meeits.
    Submitted on briefs April 11, 1895.
    Opinion handed down April 22, 1895.
   The opinion of the court was delivered by

McEnery, J.

The appellees have filed a motion to dismiss this appeal on the ground that the appellants obtained, on the 9th of May, 1894, a suspensive appeal, and subsequently the appellants applied for and obtained a second appeal from the same subject matter.

The two judgments appealed from are in the same transcript.

The testamentary executor filed his tableau of distribution and prayed that he be authorized to distribute the funds of the succession according to the final and definite account which he presented and filed, and that he be authorized by a decree of the court to deliver to the heirs possession of the properties respectively bequeathed to them by the will of the deceased after paying all debts of the succession.

There was no opposition to this account and it was homologated in the following terms: “It is ordered that said account be approved and homologated and the funds distributed accordingly.”

From this judgment Amelia Couder, Viola Oouder, Walter and Edward Couder appealed and perfected the same.

On May 22, 1894, following the above judgment, the testamentary executor petitioned the court to put in possession of the instituted heirs the property bequeathed to them.

A judgment was rendered on 22d May, 1894, in accordance with the prayer of the petition.

From this judgment the appellants took a suspensive appeal.

The judgment first rendered only homologated the account, and ordered a distribution of the funds of the succession. That part of the petition and prayer of the testamentary executor to put the instituted heirs in possession found no response in the judgment. In his petition to put the instituted heirs in possession, dated May 22, 1894, he alleges filing the definitive account and its homologation and approval, and that the succession was still under administration in the District Court.

The first judgment had reference only to the approval and homol-ogation of the account, and was silent as to sending the heirs into possession of the property.

The second judgment sent the heirs into possession, and this supplied what was omitted from the first.

As there was no reference in the first judgment to the putting of the heirs in possession, the appellants could not inquire into the legality or validity of such proceeding. Desiring to question the validity of the order, their only recourse was to appeal from the second judgment. The two judgments were on distinct matters and separate decrees. The motion to dismiss is denied.

ON the Merits.

Breaux, J.

The executor of the estate of Julie Couder presented a final account to the court for homologation. It includes not only .an account of the succession of Julie Couder, but that of her husband.

It was homologated by judgment, from which the heirs of Julie Couder, the children of Emile Couder, her son, appeal.

In support of their appeal, they assign the following as errors of law:

First: That the judgment rendered,- approving the final account was pronounced without notice or citation.

■ Second: That it was rendered without any proof whatever.

Third: That the account undertakes to transfer in kind to two of their co-heirs the interest of their late father, Emile Couder, in certain real property.

A decision regarding the first point presented is determinative of the issues on this appeal.

It is true as alleged that the heirs were not cited. The executor’s insistence is that publication of the filing of an account is a citation to all persons concerned.

After the judgment had been obtained, on petition of the executor the two co-heirs of the appellants, Mrs. William 0. Shanks and Mrs. E. J, Ñores, were placed in possession of the property, without notice to the present appellants.

Part of the property thus delivered is described as community property of the community between Julie Oouder and her husband, Pierre Oouder.

The account is not amere tableau of distribution; it was not made in order to liquidate succession debts or to obtain the court’s authorization to pay creditors and legatees. But is it a proposed final settlement among the legatees and heirs?

The executor assumed that the appellants were without interest, because of the indebtedness of their father to the succession.

This may be entirely correct; it should however be established contradictorily with the representatives of the heir in debt.

Previous to the filing of the account the debts had been paid, and while approval of these payments was sought the fact remains that “in addition division of amounts is made among the heirs.”

Indeed, the remaining assets of two estates are divided; that of the husband, Pierre Oouder, who died many years ago, and the estate of the junior in community, Julie Oouder, who held the property in usufruct to the day of her death.

In Succession of Oonrad, 45 An. 94, we held when an executor or administrator files such a final account purporting a settlement with the heirs of the estate, afid a distribution among them of the net assets of the succession which remains in his hands after debts are paid, personal notice of the filing thereof must be given to the heirs, otherwise a judgment homologating it would be of no avail. See also Succession of Von Hoven, 46 An. 911, 921.

The final account should not-disturb judgments partially distributing the funds among creditors.

The property of the community can not be delivered without citation.

Granted, that the legatees are entitled to all that was bequeathed to them; if the testator, as appears of record, has bequeathed prop - erty of the community, the community interests must be adjusted to enable the executor to deliver the property.

Under no circumstances can the administrator or executor of the succession of the wife render an account and surrender property of the succession of the husband or of the community, without proof, áfber citation to the heirs, that such changes have taken place, regarding the title as operated a translation of the property to the heir under the mother’s will.

These legatees can not sustain their claims by invoking a judgment homologated without citation.

It is ordered, adjudged and decreed that the judgments appealed from be avoided, annulled and reversed, and that the case be remanded to the District Oourt to enable the executor to apply for and have the heirs cited to answer his petition for the homologation of his account.

Appellees are condemned to pay costs of appeal.


author: McEnery, J.

text:
    No. 11,605.
    L. Bonquois vs. A. Monteleone.
    Where a building has been condemned by an inspector under a city ordinance, and no notice of the fact lias been given to the owner, and the City Council has taken no action, and the building is repaired by the owner, the fact of the inspector’s condemnation will not prevent the owner from recovering damages for injury by the erection of a wall close to and adjoining his and at one part attached to it. An adjacent proprietor has no right in building a new wall to cut away, disturb or weaken a part of the foundation of his neighbor’s wall, or to cause the projections of his wall to rest on that of his neighbor, and if it cause injury or damage, he is responsible.
    APPEAL from the Oivil District Oourt for the Parish of Orleans. King, J.

      John Bassioh, Jr., for Plaintiff, Appellee:
    Every wall which is a separation between adjoining buildings of the same height, which buildings are supported by the entire wall, in which the beams, joists, etc., are placed on each side, is, in absence of proof, presumed to be a common partition or boundary wall, and belongs jointly in indivisión to the adjoining owners of the buildings without reference to the dividing line of the lots. C. C., Art. 677; Weil vs. Baker, 89 An. 1102, 1108; 44 An. 499, Oldstein vs. Building Association; 6 An. 566, Dorville vs. Amat; 9 An. 50, Duncan vs. Labouisse.
    But when the adjoining buildings are not of the same height, one being lower, a two-story building, supported by two-thirds of said wall; the other, a three-story building, built entirely against said wall to support the building, the said wall will be presumed to be a common or partition wall only as high as the upper or highest part of the two-story building; that portion of said wall enclosing and supporting the third story of the three-story building, is presumed to belong to the owner of the highest building, and can not be used or built upon by the owner of the adjoining two-story building in erecting a higher and heavier building without the express consent of the owner of the three-story building, or without paying one-half the value of same, so as to make it a wall entirely in common. If he fails so to do and uses the wall, he commits a tort. Toullier, Ed. 1833, Vol. 2, p. 52, Sec. 186; Com. on Art. 677, Civil Code; Pardessus on Servitudes, Vol. 1, p. 376, Sec. 160; C. C. 676-684; 27 An. 199, Chism vs. Boyd; Oldstein vs. Building Association, 44 An. 502.
    Where defendant, an adjoining owner, formerly owned a two-story building, supported by an old wall, whether a wall owned entirely in common or partly in common, which old wall was sufficient to sustain the weight it was built to bear — a three and two-story building — defendant can not demolish the two-story building and erect in its place a heavy, massive five-story building, annex the side wall of same on the side of said adjoining old wall, place an offset on top of said old wall, or interfere with said wall or its foundation, without obtaining the express consent (written consent, the authorities say) of the co-owner of the common wall (the plaintiff), or on his refusal, to resort to law to cause the necessary inspections to be made and precautions to be used, to avoid injury to the adjoining building belonging to plaintiff, and not having done so, defendant uses the old wall so as to overload it, causes it to sink, thus damaging plaintiff’s building, he, defendant, commits a trespass and will be liable for all the damages to plaintiff’s adjoining property supported by said old wall. Rev. C. C., Arts. 579-679-685; Par-dessus, Vol. 1, p. 406, See. 178; Peirce vs. Musson, 17 La. Rep. 396 (and authorities therein) ; 9 An. 49, Duncan vs. Labouisse; Heine vs. Merrick, 41 An. 202; interpreting Art. 685, C. C. (and authorities therein'Cited).
    A co-proprietor is at liberty to increase the height of the partition wall or wall held in common, at his own expense, provided it is sufficient or strong enough to support the additional weight; if it is not, he is bound to rebuild it anew, at his expense, taking the additional thickness from his own property; this right imposes upon him the corresponding duty of having the wall examined by experts appointed by tbe court to examine whether it could stand the additional weight; where the co-proprietor fails so to-do, he is clearly liable for damage to the wall in common, and the building of the adjacent owner, supported by it, having an equal or greater interest in said common wall. 18 La. 271, and Pierce vs. Musson, 17 La. 890; Rev. C. C., Art. 681-682; Sirey, Commentary on Art. 659, C. N., similar to Art. 681, Domat’s Civ. Law, Edit. 1850, p. 447, Sec. 1064.
    But an adjacent owner (defendant) whose old building was supported on one side by an old party or common wall, had no-right to weaken said old party wall without plaintiff’s express consent, undermine it, and cut or remove a course of brick from its foundation, to build a heavy five-story wall close up against it, and to erect an offset or heavy water table on top of it, and thus damage the party wall and plaintiff’s adjoining building supported by said wall; in so doing, defendant is responsible for-all damages to plaintiff’s building, and can not shield himself against the consequences of the error committed by his architect or builder. Same decision; Peirce vs. Musson, 17 La. Rep. 390.
    It was a great mistake for defendant to have had the side wall of his-heavy five-story building built on the boundary line between his said building and that of plaintiff without taking out the foundation of the old common party wall, piling the new foundation and extending the offset of the foundation of the new wall on each side partly on plaintiff’s property, which defendant had the right to do, so that the centre of gravity of the two walls would fall on the centre of a common foundation properly constructed to sustain both walls; that a heavy high wall built upon the boundary line without the offsets extending over the boundary line into the adjacent lot is defective and can not stand, is clearly recognized by our jurisprudence. 8 An. 166; Murrell vs. Fowler, and Heine case, 41 An. 205.
    Where defendant, an adjoining owner of a two-story building supported by a wall in common, demolishes his building and erects a heavier five-story building, builds his side wall on the old wall in common instead of following the law requiring him to take out the .old wall and foundation and build a stronger wall and foundation, and the old wall proves insufficient, sinks and damages the adjoining building of plaintiff resting against said wall, rendering same untenantable, defendant is a wrong-doer, and is responsible for all profits and rents lost by the adjoining proprietor, plaintiff. 80 An. 84, Gettworth vs. Hedden; Heine vs. Merrick, 41 An. 208; Peirce vs. Musson, 16 La. O. S. 894, 396.
    In a suit for damages occasioned by a wrongful act, prescription runs, not from the time the act was done, but from the time when the damage was sustained in consequence of it. 36 An. 450, Hotard vs. Railway Co., and 37 An. 728, Heath vs. Texas Pacific Railway.
    Where the chimneys of an adjoining proprietor, built in a wall in common, become useless and fail to draw any longer, caused by the co-owner of said wall erecting a high building adjoining, it is the duty of said co-owner, in erecting the higher building, to ccarry up said chimneys on his high building at his expense, and where through error the party whose chimneys are carried up pays the cost of raising same he is entitled to recover the amount back. Toullier Droit Civil, Vol. 2, Paris Ed. 1833, Sec. 208; Perrin and Rendu, No. 2997; C. P., Art. 18; C. C. 2301; 10 An. 74 and 75, Catholic Society vs. New Orleans.
    The action to recover what was paid without being due is one arising out of a quasi-contract and is prescribed in ten years. C.C. 2294; 15 An. 143, Garland vs. Scott; 36 An. 408; 35 An. 858, Succession of Richmond.

      Albert Voorlvies for Defendant, Appellant.
    Argued and submitted February 12, 1895.
    Opinion handed down February 25, 1895.
    Rehearing refused May 6, 1895.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff sued the defendant to recover the sum of two thousand seven hundred and sixty-eight dollars and eighty cents damages for injury to the front and side walls of his building No. 85 Customhouse street, which amount also includes loss of rents, all caused by defendant’s putting up a five-story building adjoining the building of plaintiff.

In the first petition filed, four hundred and eleven dollars was demanded; twenty-five dollars damage to interior wall, and to roof; thirty-six dollars for loss of rent, and the balance for injury to exterior front wall.

To this demand, a general denial was pleaded.

Construing the cause of action as continuous by the injury done plaintiff’s building by the unsettled condition of the building of defendant, which it was alleged was continually sinking, several supplemental petitions were filed, the first claiming an additional damage of nine hundred and five dollars, making six hundred and thirty-three dollars damage to the side wall, and two hundred and twenty-two dollars for additional rent by loss of tenants, and one hundred and eighty-six dollars for loss of rent to be sustained on account of loss-of tenants during the time required to repair plaintiff's building. The second demand claims the additional sum of two hundred and • eighty-five dollars for more rent for vacant third story, from April, 1893, to March, 1894. This last demand is based on the allegation that the building of defendant continues to settle, preventing plaintiff from making anything but temporary repairs, as plaintiff had been informed by the architect that no permanent repairs could be made until defendant’s building had permanently settled, and that the plaintiff, in consequence of these facts, could not guarantee his tenants that they would not be disturbed during the repairing of the building. An additional sum of one hundred and five dollars and eighty cents is claimed from the defendant on account of the plaintiff having paid him this amount in error for carrying up two chimneys of his building above defendant’s five-story wall.

These demands, were put at issue, defendant alleging that the wall claimed as a party wall had been condemned by the city of New Oileans, and that it was plaintiff’s fault to have permitted it to re-' main standing, and to use the same in violation of the city ordinance.' An exception of no cause of action was filed to the supplemental petitions, and the prescription of one year was pleaded to plaintiff’s several demands.

On the 25th April, 1894, plaintiff filed a third supplemental petition, alleging the sinking of the walls of his building since January 31, 1894, caused by the additional sinking of plaintiff’s building. This demand is for one thousand one hundred and sixty dollars and sixty-seven cents, and is based on the allegation that the continuous sinking of plaintiff’s building since the filing of the last1 petition necessitates radical repairs and reconstructions of plaintiff’s building to place it in a condition in which it existed prior to the year 1892, before it was damaged by plaintiff’s building. To this petition the same defences are filed as to the other demands.

Below there was judgment for the plaintiff for the sum of one thousand and fifty-eight dollars, with interest. From this judgment the defendant appealed.

In the record there is evidence that after a fire, which resulted in the defendant being compelled to erect the building which it is claimed injured plaintiff’s building, under the ordinances of the Oity Council, plaintiff’s entire building was condemned by the report of an inspector. But there was no notice given to the plaintiff of this condemnation, and the City Council took no action on the inspector’s report. This, then, was a matter between the city authorities and the plaintiff. Not having been forbidden to repair his building, he took steps to have it repaired, and the testimony of the painter, carpenter, tinners and plasterer who did the repairs is conclusive that the building of plaintiff was in good condition prior to the erection of defendant’s five-story building. This testimony is also corroborated by that of the tenants of the building, who vacated the same because of damage to it after the erection of the five-story building.

There is a considerable amount of expert testimony which, for the plaintiff, is conclusive as to the soundness, solidity and perfection of his building; and that for the defendant is equally as positive that his building has not settled, and that it has caused no damage to defendant’s building, which has been partially wrecked by its inherent defects caused by old age and faulty construction in the foundation.

Disregarding this testimony of the experts and looking at the facts, we find from the evidence of mechanics who repaired plaintiff’s building that it was in good repair when defendant erected his building; by the testimony of tenants that it was in good condition when they occupied it until compelled to vacate it after the erection of defendant’s building for the reason that it was so damaged as to be no longer, in the parts occupied, habitable. We find in the testimony of defendant’s witnesses that the offset or projecting bricks from the old foundation were removed and replaced by better work; that defendant’s wall was built on his own land, but on this offset, close to or against plaintiff’s wall, and then fastened to it by a course of brickwork, called a water table or shed, which was worked into defendant’s wall and then fastened to the wall of plaintiff, projecting over it about one inch.

There is no evidence that plaintiff’s wall sunk before the building of defendant’s wall. There is evidence of the fact that plaintiff’s building was injured after the building of defendant was erected, and it was evidently caused by some disturbance in defendant’s building, or by the sinking of plaintiff’s wall in consequence of the disturbance of its foundation. Although not perceptible to the naked eye, and it escaped the scientific scrutiny of the experts, yet we think that defendant’s building settled, and by both causes, the weakening of the foundation by disturbing it, and the gradual settling of defendant’s wall, fastened to that of plaintiff, the latter’s building was injured. A part of defendant’s wall rested on the reconstructed set-off, and, although it went up only against or alongside of the wall of plaintiff, which joined by the “ water table,” the weight of the five-story building rested partly on this portion of the foundation, upon which plaintiff’s wall in part rested; this we think was sufficient to cause some disturbance in plaintiff’s building.

The wall was one held in common, and it is very manifest that the defendant, in building the five-story structure, did not abandon the wall and erect one exclusively on his own property, free from plaintiff’s wall.

Having made use of a part of the original foundation, and having attached his wall to that of plaintiff, the defendant was compelled to have provided against any injury to plaintiff’s building. He neglected to strengthen the wall in common to support the additional weight which he added to it by the water table attachment, and he failed to strengthen the foundation on which the common wall rested, on the side which supported plaintiff’s building. The soil in the city of New Orleans is yielding, baffUng at times the skill of- the expert engineers to overcome the difficulties in the way of arresting the settling of large and heavy buildings. It is not unreasonable then to suppose that a large five-story building, partly built on an old foundation, would, to some extent, sink, and it is more plausible that an old foundation, partially taken up on one side, and reconstructed and not strengthened on the other, on which partly rests a heavy wall, would disturb a’>d disarrange the old and existing wall. The fact that the new building visibly shows no signs of sinking is an evidence of the skill of the architect and builder, but the damaged and partially wrecked condition of the old building is also an evidence that the new work, in its solidity, was done at the expense and the sacrifice of the old.

The old wall was not sufficiently strong to support the additional weight placed upon it by defendant, and the foundation was so cut away on one side and not strengthened on the other as to endanger plaintiff’s wall.

In building, the defendant made use of the old wall to support his new wall, both in the foundation and in the attachment, although the latter was not intended for the purpose of supporting the new wall. But from the views we have expressed it is plain to us that the attachment by means of the water table brought the weight of the new wall to bear on the old. These facts bring this case within the doctrine announced in the case of Pierce vs. Musson, 17 La. 389, in which it was held that “ an adjacent proprietor has no right to cut away part of the foundation of his neighbor’s wall or house, or to cause the projections of his wall to rest on that of his neighbor in building a new wall, and if it causes injury or damage he is responsible.”

In the instant case there was no effort made to strengthen the old wall as required by Art. 655, C. C., and by Arts. 681, 682.

The testimony does not show that the plaintiff has made an effort towards the permanent repair of his building. His demands for rent and for additional damages are repeated in supplemental petitions, with alarming frequency. Under these conditions the damages to be assessed against the defendant would be prolonged to an indefinte period and the old building would be a good investment, as it would be filled with tenants paying- rents through defendant, and reconstruction and repairs would be never ceasing. We do not say that in such a case, if repairs were completed and new damage done, no cause of action would arise. The contrary is the law. But we do say that an old building injured by the erection of a new one can not be kept out of repair, and a demand constantly growing and enlarging against the party erecting the new structure. Under the pleadings we can not safely estimate the rents. For all demands in the sevei'al supplemental petitions to the time of filing the same, we think the estimate of the District Judge liberal. After repairs have been made, plaintiff’s rights to demand damages for new injuries will be reserved, and for rents during a reasonable time taken for repairs.

Judgment affirmed.


text:
    No. 11,741.
    Mrs. Anna Chapoton vs. Her Creditors.
    where, after judgment on a syndic’s final account, a rule is taken on him to subject him to the payment of interest under the provisions of Sec. 1870, Revised Statutes, no judgment can be rendered against him for amounts which he failed to deposit in a chartered bank prior to the judgment. The claim should have been made before the judgment of homologation, by which the creditor is concluded. Interest on a claim on a rule, taken after judgment of homologation, against the syndic on failure to deposit amounts and keep books, required by said section, can only be allowed after judgment, and ceases on payment of the judgment.
    PPEAL from the Fourteenth Judicial District Court for the Parish of Iberville. Talbot, J.

      Ernest T. Floranee, for Plaintiff in rule to produce bank book and to destitute syndic, Appellant, cites: 2 An. 41, 46; 6 An. 427; 11 An. 279; 28 An. 367; 14 Lea (Tenn.) Rep. 553; 7 An. 450.

      Alex. Hebert for Syndic, Defendant, Appellee, cites: 46 An. 436, 1230; 18 An. 64; C. P., Art. 567; 3 An. 115; 4 An. 233; 32 An. 947.
    Argued and submitted March 25, 1895..
    Opinion handed down April 8, 1895.
    Rehearing refused May 6, 1895.
   The opinion of the court was delivered by

McEnery, J.

The syndic in this insolvency filed a tableau of distribution, praying for its approval and his discharge. J. G. Spor, a mortgage creditor, opposed the same. The tableau was amended, and the syndic appealed to this court. On opponent’s motion,' the appeal was dismissed. Chapoton vs. Creditors, 46 An. 413.

Pending the appeal, under Sec. 1820, Revised Statutes, Spor, the mortgage creditor, sued out a rule against the syndic to show cause why he should not be condemned to pay the estate twenty per cent, per annum on the amount not deposited by him in a chartered bank of this State, as soon as the amounts came into his hands; also that the syndic failed to keep a bank book in his official name. He prayed for a dismissal from office of the syndic.

The rule was put at issue, tried, and the rule was discharged.

The creditor, Spor, appealed.

The evidence shows that the syndic failed to deposit the money separately, and that he failed to keep a bank book in his official name. The money was deposited in bank, with funds of the partnership to which the syndic belonged. He denies that he ever used the funds, or withdrew them from' the place of deposit. There is no evidence that he did, prior to the judgment of homologation. All the creditors to whom there was anything to go have been paid, among the number the plaintiff in rule, who, however, reserved his right, in giving a receipt, for what amount might be additionally awarded him in case of judgment against the syndic in the rule now pending.

Prom the facts stated, it will be seen that this case is within the ruling of Succession of Mann, 4 An. 28, and Succession of Thompson, 13 An. 263, in both of which it was held that after the final judgment of homologation the claim for interest can only be sustained from and after the date of the judgment. Interest before the date of the judgment must be urged in the opposition, or by rule, as the interest can not be sued for distinctly from the principal.

Same authorities.

The creditor, Spor, accepted the amount due him, as soon as it was practical to pay him, and we see no reason why he should be paid interest on his judgment by prolonging the litigation for this purpose. The interest after judgment is for the detention of the fund, and runs until the amount is paid. The creditor can not, as is attempted in this case, separate the interest from the judgment, and sue for it distinctly from the principal, which he has received. After the judgment, as a matter of course, the interest ceases.

It is useless to pass upon the demand for the dismissal of the syndic. He has paid all creditors, and is virtually discharged. With the affirmation of the judgment, there could be left no demand against the estate.

Judgment affirmed.