text:
    No. 2529.
    John Arrowsmith v. The City of New Orleans. Suits Nos. 19,768 and 107 consolidated.
    This suit is brought by the plaintiff to recover from the city of New Orleans certain parcels of ground which it is alleged the city has taken possession of for the use of public street s and highways. The evidence offered on the trial shows that for more than thirty-two years prior to the institution of this suit the plaintiff has enjoyed the lands owned by-him by a regular chain of title, and that during that long period of time he has never set up any claim or ownership to the parcels taken and occupied by the city for the public use, but on the contrary has been content with the limits to which the occupancy of the city had restricted him. That he has sold many of the lots and portions of groun owned with reference to the boundaries and measurement of the streets taken by the city.
    Held — That the plaintiff having adopted the plan of the city for the boundaries and measurement of the lots, and having acquiesced therein for a period of thirty-two years, with a full knowledge of all the facts, he is hound thereby, and from his selling lots with reference to the plan of the city his purpose to dedicate is fairly inferred.
    Held further — That plaintiff can not now recover on the ground that a formal dedication i g not shown.
    from the Sixth District Court, parish of Orleans. Gooley, J.

      tT. O. Walker and Semmes clt Mott, for plaintiff and appellant. JET.. D. Ogden and Geo. 8. Laeey, City Attorney, for appellee.
   Taliaferro, J.

The plaintiff complains that the city of New Orleans, acting through its Mayor and Common Council, has in violation of his rights taken possession of aud appropriated to the public use for the purpose of public streets and highways large amounts of his land, the various parcels of which, to the number of seventeen, ho proceeds to designate by the names of the streets, specifying the extent of ground in each street so taken and appropriated, and alleging the value thereof to be one hundred and fifty-five thousand dollars.. This suit was filed in the Sixth District Court on the eighteenth of April, 1867. Subsequently, on the thirteenth of October, 1868, the same plaintiff filed another suit against the same defendant, to recover other-portions of ground alleged to have been illegally taken from him by the defendant and appropriated to public use for the purpose of streets and highways, which he proceeds in like manner to designate to the number of thirty-two parcels of ground, specifying the sections or parts of the various streets in which they lie. The value of the-various lots sued for in the second suit he alleges to be two hundred and sixty thousand four hundred dollars. The two suits were consolidated and tried together in the lower court. The answer denies all and singular the allegations of the plaintiff. The defendant avers-that most of the streets mentioned in the plaintiff’s petition are part of the property formerly belonging to Mrs. de Pontalba and the heirs-of Madame Chalón, who caused plans of the same to be made, dividing it into lots and squares, and laying out the streets mentioned in tlieplaintiff’s petition, thereby dedicating them to public use. The defendant specially denies that the plaintiff acquired title to any part of this-land by the deed to him from Ferdinand D’Hóbócourt, as alleged by plaintiff. There was judgment in the court below in favor of the defendant upon, the whole claim set up by the plaintiff, except the claim in Bienville street and that in Carrollton avenue, and as to those there was judgment of nonsuit. The plaintiff has appealed.

Two bills ot exceptions are found in the record, but it is not necessary in tho decision of this case that wo should consider them.

The controversy in this case arises chiefly from the setting up of title by the plaintiff to the land laid off into squares and lots and sold by Madame Pontalba and the heirs of Madame Chalón. He sets up this claim alleging that the land so disposed of by them makes part of the tract purchased by him from Ferdinand D’Hébécourt in 1833.

The tract bought by the plaintiff from Ferdinand D’Hóbéeourt on the seventh of September, 1833, by act before De Armas, notary, by plan A, is described as having twenty-three arpents, fourteen toises and three feet front on the Metairie road, and running back fourteen arpents. Tho side lines run at right angles to the base line and in a southwardly direction, terminating, as it seems, in a swamp. A rear line, connecting the ends of tho side lines, appears and is designated1 “ ligno nouvellement déterminóe sur les lieux par l’arpenteur gónóral,” and tho land adjacent to and south of this line is marked on the plan “ propriétó ci devant Macarty.” This is the land which was laid off into squares and lots by Madame Pontalba by the plan presented by William Dunbar on the twelfth of December, 1848. The space of ground by that plan extends from the rear line of the land running fourteen arpents in depth from the Metairie road to Common street, and is the same marked on plan A as propriété ci devant Macarty.” The relative location of the land bought by plaintiff from Ferdinand D’Hébócourt and that laid off into squares and lots by Madame Pontalba by Dunbar’s plan is displayed on the map D. Now, southwardly from the rear line of the D’Hóbécourt tract, and at the distance, it would seem, of near a mile and a half, is the line of the Macarty plantation. The position assumed by the plaintiff, as we understand his petition, is that the sale to him by Ferdinand D’Hébécourt was a sale per aversionem and entitled him to all the land that would be inclosed by extending the side lines of the D’Hóbócourt tract from their termination at the depth of fourteen arpents from the Metairie road to the line of the Macarty plantation, thus asserting title to the land appropriated for streets by Madame Pontalba in the plan by which her property was sold by squares and lots. As this claim of the plaintiff constitutes, with a trivial exception, the whole case, it will be necessary to trace, to a considerable extent, the titles to these two parcels of land and note the developments that may arise. We learn from the record then'that the land purchased by the plaintiff from D’Hóbécourt is part of a body of Luid acquired by Joseph Desruisseaux in part, by grant from the French Government on the tenth of August, 1750, and partly by purchase from Joseph Girardey and Mrs. Jeanne Henry on the first of September', 1750. At tlio death of Joseph Desruisseaux the land passed by inheritance to his daughter Elizabeth, wife of Chalón. At her decease, her heirs sold that portion . of this body of land, that tho plaintiff subsequently purchased, to Francois D’Hébécourt by deed before Pedesclaux, notary, on the twenty fourth of July, 1820. Tlio heirs of Fraugois D’Hóbécourt sold to Ferdinand D’Hébécourt on the seventh of September, 1803, and on the same dajr he sold the property to the plaintiff. On tlio other hand, the title to the Pontalba tract commences from the concession by the French Government on the tenth of May, 1758. The land conceded is described as the portion of vacant land between the boundary line of Desruisseaux and that of the Reverend Jesuit Fathers.” Tho Des‘ruisseaux acquired this land in the year 3774 by purchase from Magdelaine Brazelier. It is clear that this tract is entirely a different property from that sold to Arrowsmith, derived from a different grant hnd never sold or transferred as making any portion of the laud purchased by Arrowsmith from Ferdinand D’Hóbécourt. A claim was'set up to the Pontalba tract by several claimants under a title derived from Mrs. Elenore Macarty in 1831, who purchased from Barthelemy Macarty in 182G. The land seems to have been held under this title iu portions by the Canal Bank, Copeland and John Slidell.

Mrs. Pontalba, as heir of her lather M. L. Ahnonaster, sot up title to this tract through the Desruisseaux, and the heirs of Desruisseaux also claimed it. Between them and Madame Pontalba a compromise was effected, and combining, they made common cause in attacking the title set up under tho Macarty’s. In this contest filioy were successful. That suit established the location of the “ ci dovant Macarty property.” It established clearly that Arrowsmith’s title refers only to the concession by the Marquis do Yaudreuil and the piirchase from the Girardey in 1750.

Tho plaintiff introduced iu evidence several sales of property in support of his claim to the great extent he contends for. In the sale to Jason the extent from Metairie is fourteen arponts in depth. In this sale, as well as in those to Miro, Zamora and Fouvcrgne, the lands are described as bounded south “by Macarty.” This clearly refers to the propriétó ci devant Macarty, and the sale from Macarty to Macarty, it is clear, is the same property which is displayed on map D as Madame Pontalba’s. The mortgage of Madame Desruisseaux, also introduced in. evidence by the plaintiff, is against liis pretensions. The property mortgaged is “a plantation situate on the Bayou St. John, measuring fourteen arponts front and thirty arponts in depth, bounded on one side by tho Metairie road and on tho other by the lands of J. B. Macarty.

Wo find that tho prior sales of the land Arrow-smith purchased from Ferdinand D’Hobecourb were all made with the same specification of extent, to wit: Twenty-three arpents fourteen toiscs and three feet front on the Metairie road, with fourteen arpents in depth. Each successive iransfor of the property from that of July 24, 1820, by the heirs of Elizabeth Desruisseaux to Francois D’ílébécourt down to that made to plaintiff in 1883 contains the same expression of extent.

The plaintiff caused a plan of the property to be made in 1834, by which he proposed to sell lots. This plan, of which tho map B is a copy, represents tho land as having a depth of fourteen arpents. It is in proof that by this plan lie sold a .number of lots beiore Louis Ferrand, notary. It is further shown that in January, 1835, he deposited in the office of Cuvollior, notary, another plan made by J. N. De Fouilly, dividing tho ground into squares and lots with the streets marked, and which is known as Faubourg Jackson.” This plan also retains the same description, twenty-three arpents fourteen toises and three feet front on the Metairie road by fourteen arpents of depth. The plaintiff caused ihe greater part of tho lots displayed by this plan to bo sold on tho twelfth of January, 1835, by Fernandez and Whitney, auctioneers. This plan of Pouilly proved to be incorrect, in not having the baso lino along the Metairie road properly run. From this cause it seems the streets in their extension could not be made to conform to their original course in continuous straight lines, a condition required by the City Council as precedent to an acceptance on its part of plans for extension of tho city by the laying off of building- lots and the dedication of public streets. This error was afterward corrected, as shown by map or plan E, which it seems tho plaintiff caused to he made in November, 1853, and deposited in the office of A. Ducatel, notary public. It is shown that this plan was made to correspond with the boundaries fixed by tho judgment rendered in the suit between Madame Font-alba and the heirs of Desruisseaux, plaintiff, against Copeland and others to which wo have referred. In this plan tho same extent of fourteen aipents from the Metairie ridge is given, showing that to be tho recognized extent of tho plaintiff’s laud acquired from Ferdinand D’ílébóbourfc, aud that that tract, at tho extent of fourteen arpents from tho ridge, joined what was known as the Copeland, line or the tract called after tho termination of tho lawsuit by which those holding- under tho Macarty title lost their claims, “ propriety ci devant Macarty.” In his sale to ilisington tho plaintiff described a lot of ground as bounded to the extent of two bunded feet by the line which separates it from Copeland’s property. It is shown that tho plaintiff caused to be sold at public auction by Beard & May, auctioneers, on tlie twenty-fourth of November, 1853, a large number of lots according to the plan last named, made by Hadden & Skarbourn, surveyors, and deposited in tlie office of the notary Ducatel.

The sale by D’Ilébécourt to the plaintiff is clearly not a sale por aversionein. It does not by specified but unmeasured boundaries indicate a certain area or extent of land without reference to quantity; but, by measured lines it indicates a specific quantity, and the purchaser gets neither more nor less than that quantity. The pretensions of the plaintiff to. a greater quantity of land than is contained within the measured lines of his survey have no foundation. It is made clear that prior to the institution of this suit in 1867 he has never claimed more than fourteen arpents from the Metairie ridge. For the period of thirty-two years before instituting this suit he has been content with those limits, and to them he must be restricted. The plaintiff holds that as his plan, made by Pouilly, was rejected by the City Council, the dedication proposed by him of ground for streets and public highways never took effect through failure of the city to accept it. The plan of the “Faubourg Jackson” was by resolution of tlie City Council of twenty"-seventh December 1834, approved, “ provided the streets therein designated be in exact continuation of the streets of the city.” This plan, as we understand it, was amended so as to conform to the condition expressed in the resolution, and that the lots sold in 1835 and ever since by that plan have been located in conformity with it. The plaintiff, however, contends that, as the alteration of the Pouilly plan changed the exact location of the streets as proposed by him, the portions of ground occupied by streets are not the identical portions which he intended to dedicate, and that his offer to dedicate should have been positively accepted, and in accordance with the terms in which it was made.

It is manifest from the evidence in the record that the plaintiff sold the greater part of his lots in 1835, and Ms acts of sale refer to the plan, and have been located according to the conditions imposed by the City Council. The purchasers have accepted the location, and the plaintiff has never objected. He has acquiesced in this respect for thirty-two years with full knowledge of the facts, and by adopting the changed location by the act of selling' lots in accordance with it. We think the purpose to dedicate may in this case be fairly inferred.

We deem ib unnecessary to pass on the plea of prescription made by the defendant. The judge a quo dismissed as of nonsuit the claim of plaintiff, based upon the widening of Bienville street and Carrollton avenue. We find no satisfactory evidence in support of this special claim, but we confirm the judgment in its entirety.

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


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 3781.
    Emily Woolfolk v. Degelos, Durrive & Co. et als. and Michel Hebert, Administrator, v. Emily Woolfolk.
    Drafts giren by a judgment debtor to her judgment creditor for various different amounts, and due at different stated times, which are accepted by the drawee, which, when paid, aro to operate an extinguishment of judgments operate a full and complete extinguishment of the judgments, whenever the judgment creditor disposes of or uses the drafts for his own benefit, and in such caso the judgment debtor is entitled to an injunction restraining the judgment creditor from, further proceeding on the judgments.
    from the Fifth Judicial District Court, parish of Iberville. Posey, J.

      Samuel Mathews, and jRace, Foster & FI. T. Merriclc, for plaintiff and appellee. A. & F. Talbot, for defendants and ¡appellants.
   Ludeling, C. J.

In these consolidated cases both parties are appellants.

The first suit is an injunction to prevent the execution of*a judgment against the plaintiff, on the ground that it had been extinguished. The second suit is to revive two judgments against the plaintiff. The question at issue in both cases is, are the judgments extinguished?

In 18G0, Degelos, Durrive & Co. obtained judgments against Emily Woolfolk for $17,490, with interest and costs. In June of that year she executed nine drafts payable to her own order and indorsed by her, on Messrs. Fellows & Co., who accepted them. These drafts were given to Edward Durrive, Sr., who acted as-liquidator of the firm, which had been dissolved before the rendition of the judgments.

The receipt given for said drafts is as follows :

“New Orleans, June 1, 1860.
“ Received, of Emily Woolfolk, her drafts on and aecexited by Messrs. Fellows ,& Co., all of this date, and for the following amounts, and made payable
10-13 March, 1861, for..............................$837 66
10-13 March, 1861, for.............................. 837 60
10-13 March, 1861, for.............................. 837 66
10-13 March, 1862, for.............................. 837 66
10-13 March, 1862, for.............................. 837 60
10-13 March, 1862, for............... 1,054 08
which when paid should be in full payment of principal and interest •of the two judgments in the case of Degelos, Durrive & Co. v. Emily Woolfolk, in the Sixth Judicial District Court, No. 1200, the costs ¡remaining due by Mrs. Emily Woolfolk.
“Degelos, Durrive & Co.,
“ In liquidation.”

The firm was -composed of P. A. Degelos, Edward Durrive, Sr., anti 'Thomas Mills. The evidence shows that the interest of Delegos* «estate in these acceptances were transferred to the heirs of Thomas Mille, to equalize the partition of the assets of the partnership. Edward Durrive transferred his interest to his daughter-in-law, Mrs. Durrive, Jr., and at the partition of her estate after her death, her husband became the owner of one of the acceptances, and her mother and brothers became the owners of the others by inheritance from Mrs. Edward Durrive, Jr. The succession of Millo became the owner of four of tho drafts. Subsequently Judge Labauve became owner of one of them. The others have not been accounted for in this record. It is probable that they have been paid by Fellows & Co. Suit has been instituted on four of these drafts against Emils’- Woolfolk by the administrator of the estate of Mille, and Judge Labauve obtained a judgment against Emily Woolfolk, as indorser, on the one he acquired.

Degelos, Durrive & Co. having appropriated and disposed of the drafts, can not be heard to say that the judgments are not extinguished.

Tho condition, stipulated in tlie contract evidenced by the receipt, that when paid the drafts shall be in full payment of the judgments, must be considered as having happened Avhen Degelos, Durrive & Co. parted AA'ith the collaterals given for the payment of the judgments.

It is therefore ordered that the judgment of tho district court reviving the judgments against Emily Woolfolk be avoided and annulled, and that the demand in that case be rejected with costs, and that the judgment perpetuating tho injunction be affirmed.

It is further ordered that the defendants in the case of Emily Wool-folk v. Degelos, Durrive & Co. et ais., and .the plaintiffs in the suit of Michel Hebert, administrator, et al. v. Emily Woolfolk, pay tlio costs of this appeal.

Rehearing refused.


author: Wxly, J.

text:
    No. 3824.
    B. M. Browder et al. v. George J. Hook et al.
    Tlie burden falls upon tlio defendant vIlcii lie lias made the special plea, of paymont of establishing the fact by legal proof.
    The action to compel parties to reimburse what has "been paid for them on account of the purchase of lands is only prescribed by ten years.
    A PFEAL from the Thirteenth Judicial District Court, parish of Carroll. Hough, J.

      Sparrow <& Montgomery, for plaintiffs and appellants. M. Buhóse, for defendants and appellees.
   Wxly, J.

In July, 1858, Mrs. M. W. Patten and Mrs. M. V. Hook purchased jointly from W. W. Collins a small plantation in the parish of Carroll, for the price of $12,000, represented by throe promissory notes, one due and payable on the first of January, 1859, for $6000 ■and tho other two for $3000 each, payable respectively on the first of. January, 1860, and the first of January,. 1861.

The plaintiffs have succeeded to the rights of Mrs. Patten, who died iu 1862, and the defendants are the heirs of Mrs. Hook who died intestate and who transmitted by succession to them the property which she held in indivisión with the said Mrs. Patten.

It appears that all the notes were paid by Mrs. Patten, at least she paid the several amounts thereof to Collins, the vendor.

This suit was instituted to compel the heirs of Mrs. Hook to reimhurse the heirs of Mrs. Patten for one-half the amount of the last note maturing on the first of January, 1861, which they allege was paid alone by Mrs. Patten, one of the joint obligors.

The defendants admit the purchase of the plautatiou as alleged, and aver that the parties paid the first note of $6000; that afterwards Mrs. Patten paid both the other two notes of $3000 each before they fell duo; “that afterwards, to wit, on the twenty-first of January, 1800, the defendant, Hook, paid said note of $3000 which fell due on the first of January, I860, to Mrs. Patten, and took up said note and now holds the same in possession with Mrs. Patten’s receipt indorsed thereon. Shows that he paid and took up said note in this way, viz: Richard May, the father of said Mrs. Hook, transferred to this defendant, as tutor of his children, a certain promissory note made by John B. Williams to said Richard May-for $4330, with interest, dated the twenty-third of December, 1857, and due on the first of January, 1861, as shown by the inventory of Mrs. Patten’s succession; that this defendant transferred said note to Mrs. Patten in payment of the note of $3000 which fell due on the first of January, 1860, and for the balance, after paying the §3000 note, Mrs. Patten gave her note which was subsequently settled Avers that the payment of the note of $3000 due on the first of January, 1860, to Mrs. Patten, extinguished by compensation the note sued on, and all indebtedness of his wife’s' succession to the succession or heirs of Mrs. Patten; that if the heirs of his wife owe the heirs of Mrs. Patten one-halt of the note sued on, then he alleges that the heirs of Mrs. Patten owe the heirs of his wife one-half the note paid to Mrs. Patten by this defendant, as set forth. Defendant avers and says that the payment of §728 99, made l^ him as tutor, indorsed on the note sued on, on the sixteenth of January, 1866, was made in error and under remonstrance;” that at the time the said settlement occurred, he did not have the note due on the first of January, 1860, which was mislaid and could not he found, owing to the confusion into which his papers had fallen during the war; that sometime .afterwards, upon more thorough search, ho found the note and now holds the same; and that as he paid the $728 99, as a credit on the claim sued on, in error, he now claims the amount thereof in reconvention. The prescription of three, five and ten years is also pleaded, in bar of plaintiffs’ action.

Tile court rejected plaintiffs’ demand and entered a judgment of nonsuit as to tlie reeonventional demand of the defendants. The plaintiffs have appealed, and the defendants pray that the judgment be amended by allowing them the amount of their reeonventional demand.

The only evidence adduced in support of the special defense set up, is the testimony of the defendant, Hook, who was examined as a witness in behalf of defendants. 1-Iis evidence is unsatisfactory and is contradicted by the testimony of the witness P. M. Goodrich, who was the legal adviser and the commission merchant of Mrs. Patten and Mrs. Hook, and who was doubtless familiar with the transactions between them.

It is admitted in the answer that Mrs. Patten paid Collins, the vendor, the two notes of $3000 each, maturing respectively on-the first of January, 1860, and first of January, 1861, and indeed his receipts indorsed thereon show the fact j it is also conceded that Mrs. Patten paid the $6000 note because Hook testifies that it was taken up shortly after it was made, and that “Mrs. Hook had nothing to do with its payment.” Both parties agree that Mrs. Patten received $3000 out of the note of J. B. Williams for $4330, dated in 1857, and that she credited Mrs. Hook with the amount thereof. Hook says this credit was applied to the $3000 note, maturing on the first of January, 1860, which had previously been paid by Mrs. Patten, and that the transfer of this note by Mrs. Patten was intended as a final settlement of the share due by Mrs. Ilook in the note maturing on the first of January, 1861, and all indebtedness between them on. account of the sums paid by Mrs. Patten on the joint purchase. He fails, however, to explain how Mrs. Hook reimbursed Mrs. Patten for the $6000 note which she paid shortly after the joint purchase. He concedes that Mrs. Patten paid Collins $12,000 for the land, and yet he fails to show that his wife ever contributed more than the $3000 resulting from the transfer of the Williams note, to the reimbursement of the sums paid by her co-obligor.

On the other hand, the'testimony of the witness, Goodrich, explains the whole transaction in a very satisfactory manner. He says the $3000 resulting from the transfer of the Williams note was the contribution by Mrs. Hook for half of the $6000 note paid by Mrs. Patten shortly after the purchase was made, and that the settlement of the twenty-first of January, 1860, in which Mrs. Patten receipted the note due first of January of that year and turned it over to Mrs. Hook as tutor, was merely the acknowledgment that Mrs. Patten had received out of their joint crops, which were shipped to the firm of Pilcher & Goodrich, of which the witness was a member, a sum equal to one-half the amount of Mrs. Hook’s liability on said note, due on the first of January, 1860.

This is reasonable enough; for why should Mrs. Patten, a lady of acknowledged wealth, call upon, her co-obligor to contribute or to advance in January, 1860, her half of the note which would not mature till one year thereafter, or till the first of January, 1861.

If Mrs. Hook’s half of the $6000 note had already been contributed, why should her representative, George Hook, tutor, be called upon to pay Mrs. Patten $3000 in January, 1860, when the latter only had tho right to call for a contribution of half that amount, being, as a joint obligor, herself bound for the other half.

If Mrs. Hook had taken up and paid the note due on the first of January, 1860, her heirs might well plead it in compensation against this demand for contribution by the heirs of Mrs. Patten for payment by the latter of the note duo on the first of January, 1861.

But the note sought to be used in compensation was not paid by Mrs. Hook or her heirs. It was paid by Mrs. Patten, and the moment she paid it, her part of the joint obligation became extinguished by confusion. That she subsequently receipted it and delivered it to her co-obligor, did not revive the obligation as to her, because that was already discharged by confusion. But there was a settlement between those parties on the sixteenth of January, 1866, and the defendant, Hook, in his own behalf and as tutor, recognized the obligation declared on, and caused the note to be credited $728 99, the amount of an account which he had against the said Mrs. Patten.

He says ho made this payment in error, and claims the amount thereof in revonvention, because he was doubtful at tho time whether he had paid.tlie $3000 due on the first of January, 1860, having mislaid it; and after finding it he discovered he made tho said settlement in error. Here again tho witness is contradicted. Goodrich, a witness, was present at that settlement, and he says that I-Iook then made the same objections he now urges, and that he convinced him he was in error; also, that Hook had the noto which he now says was lost or mislaid at the time of the said settlement.

As the burden of proof is with the defendants to maintain the averments of their special defense, and also to prove that the settlement of the sixteenth of January, 1866, was made in error, wo think they have not succeeded in doing so; that the weight of evidence, as to these objections, is clearly with the plaintiffs; and that the proof in the record clearly entitles the plaintiffs to the judgment they pray for. Tho prescriptions pleaded are not applicable. Ten years have not elapsed from the payment of the debt by the co-obligor represented by tho plaintiffs. Besides prescription was interrupted by the settlement and partial payment in 1866. Five years’ prescription is not applicable, because the foundation of plaintiffs’ action is the obligation which the law imposes on a co-obligor to reimburse the joint obligor for the payments made by him. The prescription of such an obligation is ten years.

It is admitted that tho mortgage securing the obligation of Mrs. Hook has boon duly reinscribod.

For tlio reasons stated it is ordered that the judgment appealed from be annulled, and it is now ordered that tho plaintiffs recover of the defendants fifteen hundred dollars, with eight per cent, per annum interest, from the first of January, 1861, subject to a credit of seven hundred and twenty-eight dollars and- ninety-nine cents’ on sixteenth of January, 1866.

It is further ordered that the mortgage be recognized and rendered executory on the property described therein and also the vendor’s privilege, and that the same be sold according to law for payment of this judgment.

It is further ordered that the defendants pay costs of both courts.

Rehearing refused.


author: Ludeling. C. J.

text:
    No. 3807.
    Clara H. Flower v. M. Legras, Tax Collector, Parish of Rapides.
    Article 1X8 of tlio Constitution which makes it obligatory on tho general assembly to levy a poll tax for school purposes, does not prohibit tho assessment of a tax on property ior the .same purpose. An additional tax on property for tho support of public education is not therefore unconstitutional.
    Tho llevenue Act which authorises tho Auditor to communicate to the tax collectors tho amount necessary to bo collected for interest purposes, does not impose upon tho Auditor tho duty, or confer upon him the power of levying a tax. It merely designates him as tho officer to ascertain tho amount of interest tax to bo collected, and is hot therefore in violation of tho Constitution whiclilodges tho taxing power exclusively in tho legislature* A taxpayer has no right to complain if tho amount of taxes demanded of him is shown to bo less than tho amount ho owes.
    from -tile Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      Robt. B. Hunter, District Attorney pro tem., ior tax collector, appellee! Ryan, Bowman, Seay d; Manning, for defendant and appellant.
   Ludeling. C. J.

The plaintiff obtained an injunction to restrain the defendant from selling her property to pay taxes, on tho grounds following-:

Jfirst — That tho four mills on the dollar as State tax is excessive and illegal — -that the State tax is only two and a half mills on tho dollar, they contend that because tbe act No. 96, of the General Assembly of 1870, approved tbe fourteenth of March, 1870, provides that it shall go into effect on the first of April following, it therefore repealed the law passed on the sixteenth of March, at the extra session in 1870, which provided a revenue for the State. This does not merit serious consideration.

Second — That the tax of two mills on the dollar as school tax, is unconstitutional, inasmuch as the Constitution lias provided that a capitation tax shall be levied for school purposes. It is difficult to conceive how article 118 of the Constitution can be construed to imply a prohibition on the legislature to levy a tax on property for school purposes. It makes it obligatory on the General Assembly to levy a poll tax, which in part shall go to support the public schools; but it does not in the remotest way prohibit, the assessment of another tax on property for the same purpose. Article 135, on the contrary, expressly declares that the legislature shall provide for the support of public schools by taxation or otherwise. Wo are unable to discover wherein the tax is unconstitutional.

Third — The “interest tax” is next resisted because it is imposed by the Auditor, and the legislature can not delegate its authority to taK. The error is in supposing that the legislature delegated its power to tax to the Auditor, or that ho levied the tax. He is merely the arithmetician designated by the law to ascertain how much interest on the State debt is to be provided for, and to inform the collectors of that fact.

But tlie plaintiff contends that the collector is attempting to collect five and a half mills as “ interest tax,” whereas the Auditor and the law only require four and a half mills. The plaintiff admits, however (and it is proved by other evidence), that the tax collector was not demanding more money of her than she owed for her taxes. It would seem to bo of little importance, whether or not the memorandum of the taxes due by the plaintiff showed that the collector had embraced in the “interest tax” an amount which should have been placed under “levee tax.” So long as no more is demanded of the taxpayer than tho amount he owes ho can not bo injured.

Fourth — The parish taxes seem to have been legally assessed, and the evidence in the record shows that the formalities of law were duly observed, by the collector, in proceeding to collect the taxes.

The act of 1873, section fifty-eight, directs that “upon a dissolution of any injunction hereafter granted to injoin or delay the collection of any such taxes,” etc., “the court ordering such injunction to bo dissolved shall enter a decree against the person or persons suing out the same, and his or their securities on their injunction bond, for the- sum of twenty per cent, on the amount of all taxes, the collection of wJiich was delayed or injoined, and all costs of suit.” 120.

It is therefore ordered and adjudged that the judgment of the lower ■court be amended so as to allow twenty per centum on the amount of the taxes as damages, against the plaintiff and her security on the injunction bond in solido, and that as thus amended the judgment be affirmed with costs of appeal.


author: Ludeling, C. J. Wyly, J., R. K. HOWELL.

text:
    No. 3716.
    Josephine Mayer et al. v. L. B. Dayries et al.
    The parish court is without jurisdiction ratione materice to grant an injunction to stay the salo of property where a succession is defendant in the suit, and the amount involved is above five hundred dollars.
    from the Parish Court, parish of West Feliciana. FI. S. Welton, Parish Judge.

      A. Trudeau, and Thomas Butler,, for plaintiffs and appellants. Samuel J. Poivell, for defendants and appellees.
   Ludeling, C. J.

After the plaintiffs had obtained an order of seizure and sale against certain property belonging to the succession of Caleb Chinn, and had seized and advertized it for sale, the administrator of the said succession obtained an order to sell the steam engine and machinery attached to the plantation which had been previously sqjzed under the order of seizure and sale.

The pilaintiffs thereupon obtained an injunction from the parish court to stop the proceedings under the order obtained by the administrator. In their petition for the injunction, the plaintiffs allege that the engine and machinery is worth over five hundred dollars.

The parish judge dissolved the injunction on the ground that the matter in dispute exceeded five hundred dollars, and the court was without jurisdiction ratione materiw. The ruling was correct. The matter in dispute, the engine and machinery, exceeds in value five hundred dollars, and a succession is defendant in the suit. Constitution, art. 87; 21 An. 455, 478, 610, 616; 22 An. 81, 517, 593.

The question is not whether or not the parish judge can annul an illegal order made by him, but whether the p>arish court can issue an injunction and try the rights of the parties to that injunction suit»' when the matter in dispute exceeds five hundred dollars, and a succession is a party defendant to the suit ? We think not.

The question involved in the injunction suit is, whether or not-the engine and machinery which, it is alleged, is immovable by destination by being attached to the plantation for its use, is affected by the mortgage of the plaintiffs on the plantation, and consequently by the seizure of the plantation under the executory process'? The plaintiffs hold the affirmative of this proposition, while the succession disputes it.

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

Wyly, J.,

dissenting. The plaintiffs had judgment in the district, court against the succession of Caleb Chinn, for a large amount, recognizing and rendering executory their mortgage on the property described in the act of mortgage. While the property was under seizure-to satisfy said judgment and mortgage by virtue of a writ from the district court, the administratrix of the succession of Caleb Chinn obtained from the parish court an order to sell a certain steam engine and fixtures on the mortgage promises, being part of the property then under seizure. Iu order to arrest this interference and conflict of authority, tho plaintiffs applied to the parish ponrt to revoke the order interfering with the prior seizure under the process of the district court, and also for the conservatory remedy of injunction to stay proceedings in the meantime.

The parish court granted the writ; but when the case came to be heard, dissolved the injunction and dismissed the demand of the plaintiffs with one hundred dollars damages, on the ground that the court, was without jurisdiction rations material, the value of the engine and fixtures exceeding five hundred dollars. From this judgment the plaintiffs appeal.

The matter in dispute is not the engine and fixtures; no one sets up adverse claim to it; both parties agree that it belongs to tho succession, and ought to bo sold to pay debts. The contest is simply as to the manner of sale. Shall the property be sold at probate sale, or shall it be sold with tho mortgaged premises to which it is attached, under the judgment of the district court, recognizing the mortgage bearing on it in favor of the plaintiffs? Both forms of sale are legal; but the question was whether the order of the parish court was not improvident at tho time, inasmuch as the property was already under seizure by the writ of a competent court, to satisfy the claim of acknowledged and recognized mortgage creditors.

Now, whether the engine and fixtures are worth five hundred dollars or five thousand dollars, is of no consequence. It being succession property and at the same time mortgaged property, either court had jurisdiction to order tho sale.

Now if the parish court had authority to order the sale, as it undoubtedly had, it certainly had authority to reconsider and to revoke that order. It likewise had authority to suspend the execution of the order by injunction, pending the examination and trial of the question. It would be absurd to say that the court has jurisdiction to sell the property because it belongs to the estate of Chinn, but it has not jurisdiction to suspend the execution of the order by injunction till it can hear an application to revoke the order. It it can grant the order and if it can revoke tho order, it certainly can suspend its execution by the mandate of injunction till any question in relation thereto shall have been considered and determined by the court. The plaintiffs, therefore, did not err in applying to the parish, court to revoke the order on tho grounds stated in the petition, and in the meantime to restrain its execution till the parties could be heard.

The district court liad no authority to revoke the order of the probate court, requiring and commanding the sale of succession property. And the only court competent to grant the relief sought by the plaintiffs is the one to which they applied in this case.

For tlie reasons stated I dissent in this case.

R. K. HOWELL.

I concur in tlie opinion of Mr. Justice Wyly.

Rehearing refused.


author: Howe, J.

text:
    No. 2664.
    Pike, Lapeyre & Brother v. J. M. Wells—E. L. Jewell, Garnishee.
    A claim for damages fliat is unliquidated, can not ho pleaded against a liquidated and established debt.
    from the Sixth Judicial District Court, parish of Jefferson. Pardee, J.

      Pays <& New, for plaintiffs and appellees. Wooldridge & Thomas, for garnishee and appellant.
   Howe, J.

Under a judgment against defendant a seizure was made in the hands of Jewell. The latter admitted he owed the judgment debtor $1000, but averred that he had a claim against Wells for damages, and he believed suit liad been instituted thereon, and upon the issue of this suit would depend the question whether he was indebted to Wells.

Upon this answer judgment was given against Jewell for $1000, and he lias appealed.

The debt of Jewell to Wells was a liquidated one, and could not be compensated by an unliquidated’demand for damages.

Judgment affirmed.


text:
    No. 3739.
    B. M. Nuzum v. Elijah Gore.
    A reconventional demand for damages for tho wrongful suing out of a sequestration, can not Ro sot up l)y the defendant where the parties reside in the same parish. Nor does ihe law authorise the imposition of such damages in any caso on the setting aside of a sequestration.
    A PPEAL from the Seventh Judicial District Court, parish of West Feliciana. Miller, J.

      Collins & Leake, for plaintiff and appellant^ Scmuel J. Powell, for defendant and appellee.
   Howe, J.

A sequestration was issued in this case to enforce a vendor’s privilege, claimed hy the plaintiff on sundry cypress logs. The defendant filed an exception that the suit was premature, the amount agreed to be paid not being due.

A mass of testimony wás taken on this question, and it seems to have been very carefully considered by the district judge. He saw ■and beard tbe witnesses, and after an elaborate discussion of tbe facts ■be arrived at tbe conclusion that under tbe agreement of the parties tbe debt claimed by plaintiff was not yet due, and lie therefore sustained the exception and dismissed the suit, with one hundred dollars ■damages.

We do not feel authorized to disturb this finding of the judge upon the question of prematurity, but we think there was error in giving .judgment for damages. The parties reside in the same parish, and such a claim can not be set up in reconvention. Nor is there any statute authorizing such an imposition of damages, as in the dissolution of •an injunction. Knox v. Thompson, 12 An. 116; Morgan v. Driggs, 17 La. 176.

Let 'the judgment be amended by striking; therefrom the amount .awarded ás damages, and as thus amended let it be affirmed.


author: Wyly, J.

text:
    No. 3762.
    Joshua C. Thomas v. L. J. Kennedy & B. W. Sewell.
    In a suit to annul and cancel a retransfer of roal estate, on tlie ground tliat a retransfer was procured through, tbe fraudulent representations of tlie vendor, parol evidence is admissible to prove the fraud.
    CCho testimony of a defendant who lias given evidence at the request of the plaintiff, may be contradicted or overcome by other testimony, the same as that of any other witness.
    A PPEAL from the Fifth Judicial District Court, parish of East Felichina. Posey, J.

      Me Tea & Kilbourne, for plaintiff and appellee. Kernan & Lyons, for defendants and appellants.
   This case was tried by a jury in tbe court below.

Wyly, J.

Tlie plaintiff alleges that in January, 1808, he purchased from Mr. L. J. Kennedy the four hundred and fifty-five acres of land ■described in the petition for $3500, evidenced by his four promissory notes, to wit: one for $500, payable on demand, and the other three for $1000, each payable respectively, first Juno, 1868, first June, 1869, ■and first June 1870; that he agreed to pay said amounts to Bennett W. Sewell, who held a conventional mortgage for like amounts on the six hundred and fifty acres owned by his vendor, Mrs. Kennedy, of which the four hundred and fifty-five acres purchased by liini formed part; that in November, 1868, he delivered to said Sewell five bales of cotton, tlie proceeds to be applied as a credit on said notes; that in January, 1869, Mrs. Kennedy and Sewell proposed to him, that if he would retransfer to Mrs. Kennedy the four hundred and fifty-five acres, that she would convey it, together with one hundred and ninety-five acres besides on which Sewell’s mortgage bore, to Sewell in payment of said mortgage and that Sewell would then transfer the whole six hundred and fifty acres to the petitioner for $5200; that relying oa .their good faith, lie made the transfer in compliance with said agreement on twenty-third January, 1869, to Mrs. Kennedy; that after obtaining the said retransfer the said parties refused to comply with their verbal agreement; that instead of carrying it out in good faith, Mrs. Kennedy conveyed only four hundred and ninety acres to Sewell in payment of his mortgage, reserving the balance of the six hundred and fifty acres to herself; that he was induced to make the said re-transfer to Mrs. Kennedy by the fraudulent representations of herself and Bennett W. Sewell, and that they obtained it by their fraudulent conspiracy against him.

The prayer of the petitioner is that the said retransfer of the four hundred and fifty-five acres to Mrs. Kennedy be avoided and annulled; that the transfer from Mrs. Kennedy to Sewell, in September,. 1869, be also annulled so far as the same affects the petitioner and the four hundred and fifty-five acres of land; and that the said Mrs. Kennedy and Sewell and the petitioner, be each decreed to be in the same position as if the said retransfer of the four hundred and fifty-five acres of land by him. to Mrs. Kennedy and the sale thereof by her to Sewell had not been made.

The defendants pleaded the general issu^, and set up roconventional demands for rent of the land and for damages.

The ease 'was tried by a jury, and on their verdict the court gave judgment for the plaintiff. The defendants have appealed.

The defendants excepted to the ruling of the court in admitting, parol evidence to establish the allegations of the plaintiff, on the ■ ground that a sale or the agreement for the sale of immovables can not be proved by parol.” There is no force in the bill of exceptions-The suit is not to enforce the verbal agreement for the several trans- . fers of the property in question; it is simply an action to annul the retransfer obtained by the defendants from the plaintiff, on the ground of the fraud and collusion practiced by them in getting it.

If the plaintiff parted with his property on the fraudulent representations of the defendants, as he alleges, it is certainly competent that parol evidence shall be received to prove it.

The evidence in the record sustains the verdict of the jury, and we see no reason to reverse the judgment of the court thereon.

As to the objection that because the defendants were examined as witnesses by the plaintiff, their answers can not be contradicted by other evidence in his behalf, we will remark there is no force in it. Under the law allowing parties having pecuniary interest to testify, their testimony can be contradicted by the opposite party the same as that of any other witness called in the case. The other objections are also without force.

Judgment affirmed.

Rehearing refused.-


author: Wydy, J. IIowm,L‘, J.,

text:
    No. 3752.
    Henry Wade et als. v. L. Caspari.
    A. judgment in favor of a tutor of minors is proscribed by tbs lapso of ten years from its rendition, if it lias not been revived in tlie manner pointed out by law. Session Acts of 1353, page 250. «3 An. 587.
    from the Ninth Judicial District Court, parish of Natchitoches. Orsborn, J.

      O. Ohapman & Son, for plaintiffs and appellees. J. M. B. Tuolcer, for defendant and appellant.
   Wydy, J.

On the second September, 1854, Lewis B. Wainsly, tutor of the plaintiffs, who were then minors, recovered judgment against their former tutrix and co-tutor for $1441 75, being the balance found to be due on the rendition of their final account.

The plaintiffs, who are now of age, have brought this hypothecary action against the defendant, who acquired the property described in the petition, subsequent to the rendition of said judgment, from said tutrix and co-tutor.

The main defense is, that the judgment upon which this hypothecary action is based, is prescribed, more than ten years having elapsed and no revival thereof attempted.

The court gave judgment for the plaintiffs and the defendant appeals.

We find the judgment sought to be enforced against the property of the defendant by this hypothecary action, has never been revived and seventeen years have elapsed since it was rendered. We think the court erred in not maintaining the plea of prescription. The language of the act of 1853, is very sweeping; it makes no exceptions. It says: All judgments for money, whether rendered within or without the State, shall be prescribed by the lapse of ten years from the rendition of such judgment; provided, however, that any party interested in any judgment may have the same revived at any time before it is prescribed by having a citation issued according to law.” * * * * Acts 1853, pago 250. In Byrne, Vance & Co. v. Garrett, executor, 23 An. 587, this court said: “ The act of 1853, fixing the prescription of judgments at ten years from their rendition, also provides the only means by which it can bo averted.” In the case of Arrowsmith, 21 An. 295, this court said: “ The statute before us is in itself free from ambiguity. It says plainly that all judgments for money shall be prescribed by the lapse of ten years from the rendition thereof unless they are revived before they are prescribed by having citation issued from the court which rendered them.”

But the plaintiffs contend that as they wore minors, they are excepted from prescription under art. 3488 C. C. It is true the Code, which is the statute of 1825, excepts minors from prescription; but the statute of 1853 does not; it makes no exception. Now because minors aro excepted from tho operations of the prescriptions announced in the Code or statute of 1825, does it follow that they are also excepted from the operation of the law of 1853, when'that law makes no exception whatever, but on the contrary declares, in precise terms, that “all judgments for money shall be prescribed in ton years from their rendition” unless revived in the manner therein provided? If judgments in favor of the tutor of minors are not prescribed in ten years, as the plaintiffs insist, then all judgments are not prescribed, but only some. The law of 1853 which lias been decided, 21 An. 295, to be free from ambiguity, will be disregarded under pretext of pursuing its spirit, in contravention of art. 13 C. C. The law of 1853 being free from ambiguity, there is no room for construction; it means wliat it says. When it says: all judgments, whether rendered within or without the State shall be prescribed in ten years, we understand that it means every judgment for money. If the exception in favor of minors in the Code of 1825 wore applied to this statute, its meaning would bo altered; all judgments would not bo prescribed in ten years, but only some; judgments in favor of tutors would not be, although the statute creating- the prescription, makes no exception.

Why should not tutors execute the judgments which they hold against debtors of the minors within ten years? It is their duty to do so.; and if they fail in their duty the minors have the legal mortgage to secure them against tlio losses resulting therefrom. Courts favor laws of prescription because it is the interest of the Republic that litigation should terminate, that there shall he no suits, when parties fail to prosecute tlioir rights within the reasonable period fixed by law for them to do so.

The statute before us makes no exception, and where the law has not discriminated, we can not.

Let tho judgment appealed from be annulled, and let tlio demand of tho plaintiffs he rejected, with costs of both courts.

IIowm,L‘, J.,

dissenting. This is the first time the question, whether or not tho prescription of judgments, established by the act of 1853, runs against minors, has been presented to this court, and I am unable to say that it does. It must be borne in mind that the judgment under consideration is simply one homologating a tutor’s account and decreeing tho sums due the minors respectively. It is true the said act is general, and by its terms applies to all judgments for money; but it must be construed or applied in connection with all other laws on the subject of prescription, and art. 3488 of tho Civil Code (3522 of tlio revised Code) declares that “ Minors and piersons under interdiction can not bo prescribed against except in the cases provided by law.” This rule is reiterated in art. 3519 C. C., with a slight modification of the last clause, which is appropriate in its position, following the express exceptions. As the act of 1853 does not provide expressly that the prescription it establishes shall run against minors, it should not be so applied. This act and the art. 3488 are not irreconcilable. All laws upon the same subject should be construed, if possible, to-give force to each. This can be done in this instance by holding, and not "without reason, that tho Legislature intended the act of 1853 to be applied, as other equally positive and general provisions of law on the subject of prescription, that is, not to apply to minors, because of the existing special provision that no prescription is to apply to them unless the law in express terms declares that it shall. The Legislature is presumed to enact laws with reference to existing legislation on each subject, and tho interpretation given to such legislation. The laws on the subject of prescription against minors in this respect, had received frequent interpretation prior to the act of 1853. 12 R. 264 ; 6 An. 111. If it was intended that said act should apply to minors the Legislature would doubtless have so expressed it. If judgments, homologating tutor’s accounts (aid fixing the amounts due minors are prescribed by ten years, a grave and remarkable change is wrought in the legislation and jurisprudence relating to their rights. The law requires the rendition of annual accounts and the judgments homologating them, heretofore considered not conclusive, will place the minors in a much worse condition than if accounts are not filed and homologated.

I can not think the statute establishing the prescription of judgments is to be so understood.


author: Ludelino, C. J.

text:
    No. 3982.
    Etienne Villavas v. A. W. Walker.
    Tlio wrongful suing out of an injunction to stay tho execution of a judgment of tlio Supremo Court on alleged grounds that have arisen subsequent to tlio decision will not be regard» ed as a contempt of the authority of the Supreme Court.
    On rule for contempt.

      O. Boselius and Alfred Philips, for relator. A. W. Walker, in person, respondent.
   Ludelino, C. J.

The plaintiff alleges that P. Jorda, parish judge of the Parish of St. Bernard, acting as District Judge of the Second Judicial District, has,' in violation and contempt of the peremptory mandamus issued by this court, granted another injunction (being tho fifth) to prevent the execution of the judgment of this court rendered in the above entitled cause, at the instance of the defendant A. W. Walker, and that the conduct of tho said judge and A. W. Walker evince a determination to put the authority of this court at defiance and to treat it with contempt.

The judge a quo is not shown to have known what proceedings had been taken in this case, and he disclaims any intention to disobey or disregard the mandates of this court. A. W. Walker also disclaims any intention to disobey and disregard the orders of this court, and he insists that what he has done has been solely to protect his legal rights.

The grounds upon which he bases his application for an injunction do not seem, to be sufficient to justify the writ, but we are not prepared to say that the wrongful suing out of an injunction on alleged grounds, arising since the judgment, can be properly construed to bo in contempt of the authority of this court. Por the wrongful suing out of the injunction, the law furnishes a remedy by authorizing the judge to mulct the party and his surety in damages.

While we will scrupulously maintain the authority of this court and exact obedience to its mandates, we will not exercise the power in a doubtful caso to punish for a contempt.

It is better that ninety-nine guilty shall escape punishment than that one person shall bo deterred by this court from the exercise of a legal right. It is therefore ordered that the rule be dismissed.


author: Iíoave, J.

text:
    No. 3198.
    J. R. Bowie v. H. R. Lott.
    Article 132 of the constitution, which provides that “ all lands sold in pursuance of decrees of courts shall bo divided into tracts of from ten to fifty acres,” is not self-acting, and can only have effect in the manner and to the extent provided for by statnto.
    Appeal from the Parish Court of Carroll. Hough, J.
    If. Hiibose, lor plaintiff and appellant. Sparrow <& Montgomery, for defendant and appellee.
   Iíoave, J.

Tiie succession of Mrs. Nancy Bowie was opened in the Parish of Carroll in 1867. 'In August, 1869, a tract of land belonging thereto was ordered to be sold to pay debts, and was purchased by H. E. Lott. The purchaser sued out a monition for the purpose of curing irregularities, and to this an opposition Avas made by J. E. Bowie, claiming to be universal heir of the deceased.

There was judgment in favor of the purchaser and the opponent has appealed.

There are several points made by appellant which do not appear to have any especial force. The purchase Avas made in good faith, presumably i and the court had jurisdiction to order the sale. The purchaser is therefore protected by the decree against irregularities and informalities, if any there were, prior to such decree. We do not perceive any irregularities subsequent to the order of sale, unless they are to ho found in the fact that the lands were not divided for purposes of sale into tracts of from ten to fifty acres, in accordance with the ■provisions of the Constitution of 1868. The opponent makes this point also, and we are required to pass upon it.

The constitutional provision in question reads as follows :

“Article 132. All lands sold in pursuance of decrees of courts shall ;be divided into tracts of from ten to fifty acres.”

By act No. 40, approved February 24,1869, provision is made for carrying into effect this article, so far only as contracts made and sncces■sions opened after the date of the adoption of the Constitution-of 1868 are concerned. The theory of the legislator seems to have been that the constitutional provision was not intended to be self-acting; that it required a statute to supply the necessary machinery for its practical operation; and that it would not bo just to supply this machinery, except so far as contracts made and successions opened after the adoption of the constitution were concerned.

There is much to lead us to suppose that this article was not intended to be self-acting. It appears at first glance that it is not prohibitory in its terms, and is not therefore within that class which for their execution require only that the citizen, whether in his official or his individual capacity, should refrain from disobedience of their provisions. ¡•State ex rel. Salomon & Simpson v. Graham, 23 An. 204. Again, there is no penalty or nullity announced in the article, and it might be matter of serious discussion whether, in the absence of any sanction, it was intended by the framers of the constitution that the article itself should, proprio vigore, invalidate every sale of lands made after its adoption, which should not accord with its regime, although the legislature should not have provided any practical means for carrying out the design of the article. And this suggests finally another reason which is perhaps still more cogent, namely, that the article in question furnishes no modus operandi by whieh the sales are to be made, but, rather contains a general direction addressed to the legislative department, announcing a new poliey in regard to the division of land, and leaving to the legislature the task of carrying the idea into practical execution. I-Iow is the land to be divided? Who is to make the division ? How are the possibly large expenses of accurate surveys ■to be paid ? What was intended to be done under the necessary numerous orders of sale requiring to be executed between the'date of the •■adoption of the constitution and the date when the legislature, acting with the utmost diligence, might devise the necessary machinery? Upon these important points the article is silent, and prior to the act ■of 1869 the statute book was silent also.

We must conclude that the article in question was not self-acting in the manner claimed by opponent; that it could be carried into practical operation only by a statute; and that, therefore, it had no effect in this case, because the succession was opened prior to the adoption of the Constitution of 1868, and a sale of' its lands was not only not provided for by the statute, but expressly excluded from its operation.

Whether the Legislature did its full duty in providing for a sale of certain property, and excluding another class is á matter for the conscience of tlie legislator. It is enough for the courts to see that the article is not self-acting, and can therefore take effect only to the extent provided for by the statute.

Judgment affirmed.

Rehearing refused. •


text:
    No. 3719.
    Moore & Simmons v. William Polk.
    The admission by t-lie defendant in the answer, that the plaintiff acquired the notes sued' upon, by the indorsement in blank of the payee, is sufficient proof of the signature of the indorser.
    from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      B. A. Hunter, for plaintiff and appellee. T. O. Manning, for defendant and appellant.
   Howe, J.

This is an action on notes made by defendants to the-order of Cummings, Brown & Co., and alleged to have been indorsed by the latter to plaintiffs. The answer was a general denial, followed by this admission and averment:

“Por further answer the defendant admits his signature to the notes,, but he denies that the plaintiffs are the owners of them, and allogesthat these notes were received by the plaintiffs herein as the agent and attorney in fact of the payees.” etc.. » * * * * *

He then averred that the notes belonged to the assignee in bankruptcy of Cummings, Brown & Co., and not to the plaintiffs. On the trial defendant objected to the notes being received in evidence, because-the indorsement in blank of Cummings, Brown & Co. was not proved. The objection was overruled and defendant reserved a bill of exceptions.

It is quite true that in a suit against the maker of a note to order, the indorsee must prove indorsement by the payee if denied; but in this case the statement by defendant in his answer seems to he sufficient evidence. It is an admission that the plaintiffs received the notes in suit by transfer from Cummings, Brown & Co. the payees, and impliestliat the name of the payees written in blank, on the back of each is a genuine signature. No defense is pretended to exist as against tliesepayees, of which the suit by plaintiffs may deprive the defendant-No proof was offered of any defense whatever to the notes. •

Judgment affirmed


text:
    No. 2379
    Southern Dry Dock Company v. Bayou Sara Packet Company, A. C. Goddin, D. C. McCan and E. M. Rusha.
    Tlie sale of Ms property by a debtor in insolvent circumstances, may bo annulled on tbe ground of fraud; and in such a caso fraud will bo presumed if the vondco had knowledge of the insolvent condition of the vendor at the time of the salo. C. C. 1984.
    from the Seventh District Court, parish of Orleans.Oollens, J.

      B. JEgan, for plaintiff and appellee. Thomas Hunter and JR. H. Marr, for defendants and appellants.
   Ludeling, C. J.

The plaintiff sued the Bayou Sara Packet Company for nineteen hundred and eighty dollars, with legal interest from fourteenth May, 18G7, and also the defendants, Goddin, McCan and Rusha, to revoke (so far as it affects petitioner’s rights) the transfer of the steamer Wagoner, made by the said Bayou Sara Packet Company to said Goddin, McCan and Rusha, fraudulently and to the injury of' petitioner’s rights.

There was judgment in favor of the plaintiff and the defendants • have appealed.

The evidence satisfies us that the Bayou Sara Packet Company was in insolvent circumstances, when it made the transfer of the said boat to Goddin, McCan and Rusha, and that they knew this. Goddin was president of the company, and McCan and Rusha were membors thereof. The price was the assumption of certain debts of the company, a very large proportion of which were due to themselves. There is no evidence to show that any portion of the price, if paid, inured to the benefit of the plaintiff.

“The property of the debtor is the common pledge of his creditors.” C. C. 3183. A right implied in all obligations is “that the property of the debtor shall be liable for all the consequences attending non-performance.” C. C. 1968. Therefore, “it results that every • act done, by a creditor, with the intent of depriving his creditor of any eventual right he has upon the property of such debtor, is illegal,.. and ought, as respects such creditor, to be avoided.” 1969 C. C.

“ If the party with whom the debtor contrasted be in fraud as well as the debtor, he shall not, on the annulling the contract, be entitled to a restitution of the price or consideration he may have paid, except-for so much as he shall prove has inured to the benefit of the creditors by adding to the amount of property applicable to the payment of their debts; but if the only consideration be a sum due from such debtor to the party with whom he contracted, then the only restitution to be made is the placing the parties in the situation in which they were - before the contract complained of was made.” C. C. 1982.

And “every contract” the Code says, “-shall be deemed to have been made in fraud of creditors, when the obligee knew that the-■obligor was in insolvent circumstances, and when such contract gives to the obligee, if he be a creditor, any advantage over other creditors -of the obligor.” 1984 C. C.

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

Rehearing refused.


text:
    No. 3615.
    Succession of Alexander Norton—On opposition of John Osborn, Tutor.
    -A.commission merchant, who has received a lot of cotton on consignment from the tutor as the property of the minor, can not appropriate the proceeds thereof to the payment of a debt or obligation due him by the tutor. In such a case the proceeds of the sale of the cotton or its value, as shown at the time it was received, belonging to a minor may be recovered from the merchant, less the expenses incurred in shipping and selling it, even though the merchant show that the cotton was shipped in tlie individual name of the tutor, and that the tutor was indebted to him, on his own account, in an amount above the proceeds of tlie sale of the cotton.
    from the Second District Court, parish of Orleans. Dmigneaud, J.

      W. B. Hyman, for appellant. Miles Taylor and James Braver, for appellees.'
   Ludeling, C. J.

The opponent claims that the succession is in■debted to Mm as tutor in the sum of $12,062 50, with five per cent, interest per annum from fifth of April, 1867, being the value of thirty-five bales of cotton alleged to have been shipped to him by said tutor as the property of the minor. The answer is that Norton had no knowledge of the fact that tlie property belonged to tlie minor ; that lie had agreed to furnish supplies and money to carry on a plantation ■cultivated iu cotton by the said John Osborn, and that the cotton made should be shipped to him as a commission merchant; that lie did make ’.large advances to said Osborn; that lie received thirty-five bales of cotton shipped to him in the name of John Osborn aud marked J. O.j that he sold this cotton and accounted for it to Osborn j that he rendered an account to Osborn in January, 1868, long after he had received and sold the cotton, which showed that Osborn owed Mm a balance of ■$2025 13 after crediting Mm with tlie proceeds of the cotton.

The evidence on the record shows that the cotton shipped belonged to the minor J. H. Osborn, and that the deceased, Norton, was informed of the fact. Osborn swears that Norton knew this cotton belonged to the minor, as he had consented to go on a sequestration bond to get possession of it for the minor; and Fluke, a merchant, testified ■that he was present in Norton’s office in tlie latter part of April or in May, 1867, when Osborn asked him if he had sold his child’s cotton, and Norton replied that he had not yet, but that lie would as soon as possible. Osborn further testifies that lie often afterward called on Norton to account for tlie same, but he never did. It is further proved that the Osborn plantation failed to make any cotton in 1866.

Having received the cotton from the tutor as the property of the minor, the merchant could not appropriate the proceeds thereof to the payment of the obligations due to them by the tutor without his consent. To do so would be a breach of confidence and violation of good faith.

It appears, however, that after the shipments of the cotton Osborn drew the following amounts from Norton, to wit: $300, $200, $60. This amount, $560, should be deducted from the proceeds of the sale of the cotton.

The defendant alleges that he did not sell the cotton until January, 1868, and ho does not explain why he kept the- cotton so long before selling it. As has already been observed, the tutor Osborn called on him in the latter part of April, or in May, 1867, to inquire if he had sold the cotton, and Mr. Norton promised to sell it as soon as possible. It is manifest, therefore, that Osborn wanted him to sell as soon as possible after the shipment of the cotton, which was early in April, 1867, and no satisfactory reason is given for failing to do so. Nor is it proved that the cotton shipped was not sold until January, 1868 — the proof is that some cotton marked J. O., which was damaged, was sold in January, 1868. That does not by any means prove that it was the cotton shipped by Osborn in April, 1867. Nor do the bills of lading prove conclusively that the cotton was damaged. One bill states that fifteen bales were shipped “in good order and condition,” and that they are to be delivered in the like good order and condition. At the bottom of the bill is added “damaged, bad order, and not accountable for weights.” The other bill has added at the bottom thereof “ condition and damage excepted.” These exceptions were not intended to prove that the cotton shipped was damaged, but only that the carrier was not willing to be hold resiionsible for its condition. Fluke, who saw the cotton before it was shipped, says he wanted to buy it — that he thinks it was worth forty cents per pound. It was not damaged, if his statement be true, and there is nothing to contradict it, unless the evidence contained on the bills of lading contradict him. If the cotton was damaged it was the duty of the merchant to have sold it as soon as possible, as it must have deteriorated in value every day; and he should have notified the shipper that it was damaged.

The evidence of several witnesses shows that the cotton was worth thirty-five cents per pound during the spring of 1867, and that the thirty-five bales weighed between four hundred and fifty and five hundred pounds per bale. Adopting the lowest estimate of the weights at thirty-five cents per pound, the proceeds of the cotton would equal $5512 50. Tlie freights, charges and internal revenue tax and sums advanced to Osborn on the cotton mentioned above, will equal $1087 50, which must be deducted from the gross proceeds of the cotton.

It is therefore ordered and adjudged that the judgment of the lower court dismissing the opposition of J. Osborn, tutor, be avoided and that there be judgment in his favor against the estate of Alexander Norton, for the sum of four thousand four hundred and twenty-five dollars, with legal interest from judicial demand, costs to be paid in due course of administration, and that in all other respects the judgment of the lower court be affirmed, the costs of this appeal to be paid by the succession.


author: Howéll, J.

text:
    No. 2614.
    J. L. Levy & Salomon v. Bank of America.
    A bank is not required to know any of the persons who indorse a cheek drawn upon it, except the one who prosonts it for payment, nor is it authorized to withhold payment until it is furnished with direct proof that the signatures of the indorsers preceding the one presenting it are genuine. In cases of this kind the rule is that the hank must know that the signatures of the drawer .and the person who presents it for payment are genuine, under penalty of liability to pay it again in case either of the signatures are shown to be a forgery. But if it be shown that the signatures of the indorsers which precede that of the one receiving payment is a forgery, the bank can not on that account be hold to a second payment.
    from tbe Seveutb District Court, parish of Orleans. Oollens, J.

      Ifyams & Jonas, for plaintiffs and appellants. Johnson & Denis,

    for defendant and appellee.
   Howéll, J.

Tbe plaintiffs, wbo are brokers and dealers in State warrants, etc., purchased of a man unknown to them a State warrant for nine hundred dollars, drawn to the order of and indorsed by Charles II. Merritt, the secretary of the State Senate, for which they gave their check for seven hundred and twenty dollars on the bank of America,, (where they kept a deposit account) drawn first to bearer, but changed by them before delivery to the order of said Merritt. This change was made after the stranger was asked if he was Charles II. Merritt and replied affirmatively, the object being, as stated, to make Mm identify himself to the bank. This check, bearing the name of Charles II. Merritt on its back, was taken by Isidore Newman, a broker, keeping an account also with the defendant, in exchange for coin and currency and by him deposited with his indorsement on it with the bank of America, its amount being credited to him and charged to the plaintiffs. The State warrant passed through several hands and was finally, some four or five months after the above transaction, presented by one of the tax collectors to the Auditor, when it was found to have been changed from the sum of one hundred dollars to nine hundred dollars. Erom each successive holder it reverted to the plaintiffs, who found then that ■the indorsement of Charles EL Merritt was forged upon their cheek. They now sue the bank for having paid the check on this forged indorsement. The bank called Newman in warranty. The district court gave judgment in favor of the bank on the authority of the case of Smith v. Mechanics’ and Traders’ Bank, 6 An. 610; and the plaintiffs appeal. They call in question the correctness of the doctrine of that ease, but contend that it differs entirely from the one at bar, upon the point considered by the Supreme Court as of the first importance, to wit: That Smith in drawing his check to the order of the supposed acceptors of the bill purchased by him and not to the order of the holder from whom he purchased, was deviating not only from the usual course of business, but from his own long established and regular custom; while in this case the plaintiffs draw their check according to the ordinary usual course of huiness, to the order of the payee of tho warrant purchased, whose genuine indorsement was on it at the time. This difference does not seem to us to' be such as to greatly benefit the plaintiffs. In each case the instrument purchased was a forgery at the time of the purchase, and the purchasers issued their checks in payment thereof to unknown persons, hut in the name of tho payees alike of the forged instruments, with the acknowledged purpose of throwing upon the bank the responsibility of paying to the right party. In each case the signature to the check was genuine and the checks were given to tho guilty parties or their accomplices, who havo easily ■and successfully deceived tho drawers of the chocks, who it seems had some suspicions as to tho identity of the parties with whom they were dealing; as said in the Smith case, the first fault was committed hy the plaintiffs in taking the forged or false instrument, and placing their check in the hands of a party who had every interest to use it as an implement of fraud. The plaintiffs can not successfully complain that the bank failed to i>rotect them from the devices of a person who had, with so little effort, deceived and defrauded them. If the warrant purchased by tbem bad been genuino, we presume tliey would not have complained of tlie payment of their check hy the bank to any other party than Merritt, in whose favor it was drawn hy them. It seems to us they are endeavoring to make the hank repair a loss which they brought on themselves by their own carelessness.

There is a feature in this case which makes it a stronger one in favor ■ of tho hank than the Smith case : It is that the bank in this instance paid on the genuine indorsement of tho party presenting it for payment, tho indorsement of Newman. We are aware of no law nor custom, which makes banks responsible primarily for the genuineness of every indorsement which may appear on checks drawn on them. Wo apprehend that they are not required to suspend payment until they are ■furnished with direct proof, that each indorsement preceding that of the party presenting- or depositing- it, is genuine. They must know the party to whom they pay and the signature of the drawer.

The authorities cited by plaintiffs come under the general rule, that banks pay checks to order at their own risk, when their customers, in drawing the chocks, have done nothing on their part to create or increase that i-isk, as in this case.

Judgment affirmed.


author: Howell, J.

text:
    No. 2755.
    William Graydon v. F. R. Justus.
    The defense to an action brought in the courts of this State, to enforce a judgment rendered in the State of Uow York, that the hfow York judgment was absolutely void for want of citation, must be pleaded specially so as to put the plaintiff upon his guard. If in such.a suit a form of citation is shown in the record of the judgment in Kew York, then the presumption will be, under the provisions of section 1 of article 4 of the Constitution of the United States, “ giving full faith and credit in each State, to the judicial proceedings of every other State,” that such citation was made in conformity with the laws of New York, and is not therefore void for want of citation.
    from the Seventh District Court, parish of Orleans. Gollens, J.

      Din-hammer & Kennard, for plaintiff and appellee. O. Eoselius & Alfred Philips, for defendant and appellant.
   Howell, J.

This suit is brought on a judgment rendered by the Supreme Court of the city and county of New York. The defendant denies that plaintiff has obtained any valid judgment against him,” . and that he owes anything to plaintiff. The record of the suit of William Graydon against P. R. Justus in said court was introduced in evidence, and from a judgment against him the defendant has appealed. The only question he presents is, the absolute nullity of the New York judgment for want of citation. lie argues that, as the law of New York in regard to citation was not introduced in evidence, we must presume the law of that State is the same as ours, and must therefore hold that the summons ” to the defendant found in the record and signed by the attorneys of the plaintiff and served upon the defendant personally by their clerk, is without effect and the defendant was never cited.

This is a technical defense, which we think should have been specially pleaded, so as to put the iilaintiff on his guard. Under the general allegation that, “the plaintiff has not obtained any valid judgment against this respondent,” the plaintiff was not bound to know that he expected to introduce the law of Now York on the subject of summons or citation to defendants. He was fortified in advance by the presumption in favor of the regularity of judicial proceedings, to rebut which it was incumbent on defendant to at least set lip the particular defect or irregularity in the proceedings on which he relied for that purpose.

Conceding that the presumption invoked by the defendant applies to a case like this, we think it overcome by the presumption arising from the provisions of section 1 article 4 of the Constitution of the United States, giving full faith and credit in each State to the “judicial proceedings" in every other State; the provisions of article 752 C. P.,. making judgments rendered in other States full proof in the courts of this Stato when properly certified, and the maxim “ omniaprmsumuntur rile esse acta." We will rather presume the “ summons” on which the New York court based its judgment was in conformity with the law of that State, than that the form of citation required in Louisiana was necessary there.

The evidence before us, in our oppinion sustains the judgment appealed from.

Judgment appealed from is therefore affirmed.


text:
    No. 3709.
    A. Levi & Co. v. B. Weil & Brother.
    A citation issued by tlie Provisional Court of tlio United States, for tlio Stato of Louisiana, if served on tlio defendant boforo tlie war between tlio United States and tbe so called Confederate States liad been declared at an end by tlio political department of the gov ■ eminent, operated an interrui>tion of prescription in favor of tlie plaintiff.
    from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      William A. Seay, for plaintiffs and appellants- Ryan cO White, and T. O. Manning, for defendants and appellees.
   Howe, J.

The only question in this case is whether prescription was interrupted by a citation from the Provisional Court of Louisiana, issued and served on the sixth November, 1805.

Wo are of opinion that this question must be answered in the affirmative. The Provisional Court at that date was still in existence. The political department had not yet declared the war to be at an end. The military authorities of the United States were still in control of New Orleans, and were still exercising an irresistible supervisory power over civil matters throughout the State. This is matter of history, and the specific dates' appear in many decisions of this court. Burke v. Tregre, 22 An. 629 ; Britton v. Aymar, 23 An. 65.

The discrepancy1' between the names of the persons composing the plaintiffs’ firm, as given in the petition filed in the Provisional Court,, and as recited in this action, is not important. It is enough that the defendants were cited in the first suit, to answer a claim made upon the same obligation.

We think the plea of prescription was erroneously maintained. The cause was tried, however, on the merits, and we cau therefore proceed to render a final judgment.

It is therefore ordered that the judgment appealed from be reversed, and the plea of prescription overruled, and that the plaintiffs, A. Levi ,& Co., have judgment against Bernhard Weil and John Weil, defendants, in solido, for the sum of three thousand three hundred and twelve dollars and forty-nine cents, with eight per cent, per annum interest, on sixteen hundred and forty-three dollars and eighty-three cents from February 4, 1861, and on sixteen hundred and sixty-eight dollars and sixtj^-six cents from April 4, 1861, and costs of suit.


text:
    No. 3753.
    Toney Doherty et als. v. F. V. Leake, Sheriff, et als.
    . A party in possession of real property under a recorded title ostensibly valid, can not be disturbed by any collateral proceedings instituted for the purpose of invalidating bis title. Any inquiry looking to tbe nullity of suclx a title can only be entertained under the direct form of action. 23 An. 175
    from the Seventh Judicial District Court, parish of West Feliciana. Bailiff, J.

      Wieldiffe & Rsher, for plaintiffs aud appellees. Samuel J. Powell, for defendants and appellants.
   Wyly, J.

The plaintiffs injoin the sheriff and the other defendants from selling the plantation described in the notice of seizure annexed to the petition, ou the ground that it belongs to them and not to tho seized debtor, Mrs. Charlotte Doherty, they having acquired a valid title thereto under execution of the judgment of George Jackson v. the said Charlotte Doherty, which judgment was superior iu rank to that of the defendants. -

The defendants deny that the plaintiffs have title to said property; and- aver that the judgment under which they purchased it was at the time prescribed, that more than ten years elapsed before the suit for revival of the judgment was instituted; aud although execution issued after the judgment of revival and the property was regularly adjudicated to the plaintiffs, their title was au absolute nullity. The court perpetuated the injunction, and tho defendants appeal.

In Andersen v. Carroll, Hoy & Co., 23 An. 175, this court said: “The evidence shows that the plaintiff was in possession under a recorded title and there was no simulation as charged; that ho purchased under a judgment aud mortgage-ostensibly valid and superior in ran; to that of the defendants. Such a title can not be treated as an absolute nullity, it can not bo attacked collaterally. Actual contracts even though made in fraud of the rights of creditors, can not be annulled except by a direct action. Whether the mortgage under which the plaintiff purchased, was properly roinscribod, or whether the judgment was revived upon insufficient evidence or not, are questions that can not be inquired into in this form of attack.”

Here the plaintiffs are in possession under a recorded title ostensibly valid, and under a judgment superior in rank to that of the defendants. This is an actual contract that can not be attacked collat- ■ ©rally under the settled jurisprudence of the State.

Judgment affirmed.