author:
Manning, C. J. DeBlanc, J. White, J. Manning, C. J.
     Marr, J. DeBlanc, J. Spencer, J.

text:
    No. 6857.
    Louisiana Cotton Manufacturing Company vs. City of New Orleans.
    The constitutional provision granting to ths Legislature the power to exempt from taxation property actually used for church, school, or charitable purposes is an enumeration, and excludes from exemption all property not enumerated.
    A law which commutes the taxes on property not actually used for church, school, or charitable purposes, by authorizing the payment of a small stated sum in place of taxes is as much a violation of the constitution as if it wholly exempted the property from taxation.
    ^PPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      John W. & W. 8. Finney for plaintiffs and appellants.

      U. N. Ogden, Attorney General, B. F. Jonas, City Attorney, and 8am. P. Blanc, Assistant City Attorney, for defendant and appellee.
    The opinion of the court on the original hearing was delivered by Manning, C. J., and on the rehearing'by. White, J.
   Manning, C. J.

The plaintiff purchased ground in New Orleans, with buildings and machinery upon it adapted to the manufacture of cotton goods, and commenced their manufacture in 1877. The board of assessors included this property in their assessment at a valuation of forty thousand dollars. In that year the plaintiff paid- one hundred dollars to the State, and the same sum to the City, as a commutation for the taxes which each could claim, under authority of an act of the General Assembly, which exempted any incorporated company, whose-business was the manufacture of cotton or woollen goods, from all taxes, by the payment of the sums above mentioned in due time. Sess. Acts 1875, p. 107. The object of this suit is to annul the assessment of this property, and to prevent the delivery of copies thereof to the Auditor and the Recorder of mortgages.

The exception of no cause of action was pleaded, in this; that even if the property be exempt from taxation, the plaintiff should wait until a tax is demanded before he complains, and Roudanez v. Mayor, 29 Annual, 271 is cited as authority. The dissimilarity in the two cases is manifest. In Roudanez a few persons undertook to prevent the holding of an election to determine whether a tax should bé levied to aid a railway. We held their action premature because none of their rights had been invaded, and the danger they apprehended was too remote to warrant an injunction. In this case a present right is claimed to be affected, and an imminent peril to that right is sought to be averted. The assessment-roll stands in lieu of citation in legal proceedings. If the plaintiff should fail to pay the assessed tax, the deposite of the roll is the first step in a suit to enforce its payment. It was an act which might operate great injury, and he was not bound to wait until another step had been taken towards its infliction.

The defence is based upon the alleged unconstitutionality of the Act which exompts this property from taxation. It is claimed that whed the constitution says, “all property shall be taxed in proportion to its value, to be ascertained as directed by law,” and in the next sentence confers upon the General Assembly the power to exempt from taxation property actually used for church, school, or charitable purposes, that it means, no property shall be exempt except it be used for one of these three purposes. We have heretofore refused to adopt that construction of the constitution. New Orleans v. Davidson, 30 Annual, 554. New Orleans v. Fourchy, Ibid. 910.

In order to authorize the construction of the defendant, one part of the sentence must be expunged, so that it shall read — all property shall be taxed. That such was not the intent of the framers of that instrument is apparent from the permission immediately given to the legislature to exempt something. That the legislative interpretation of that sentence is not as the defendant claims, is exhibited by the frequent exemption of property, not coming within the classes mentioned, and our construction has been in harmony with that interpretation.

The constitution has not commanded that all property shall be taxed, but that none other than an ad valorem tax shall be levied upon it; that is to say, whenever the legislature does, tax property, it must tax it proportionate to its value. If art. 118 of the constitution read thus ; — All property shall be taxed, and the taxation shall be in proportion to its value — the mandate would be unmistakeable. Taxation in proportion to value is the principle asserted in that article as it appears in the constitution. The absence of any prohibition of exemption is marked and significant. The' permission to exempt certain property, because of the use to which it is applied, indicates only that the property thus used may be exempted, but does not exclude the exercise of power to exempt any other.

The legislature has constantly exercised the power to exempt other property, and has exempted it, as for example, household goods, mechanics’ and labourers’ tools, etc. of a specified value. Besides it is an admitted fact, that all property is not subjected to taxation, notwithstanding the provision of equality and uniformity, or even of universality. The power of the legislature to commute taxes, says Mr. Burroughs, is not restrained by the provision for equality and uniformity. Taxation, 56. This provision does not inhibit the legislature from, nor deprive it of the power of dividing the objeots of taxation into classes, but only commands it to impose the same burthen upon all who are in the same class. New Orleans v. Kaufman, 29 Annual, 283.

The judgment of the lower court was in favour of the defendant, and is erroneous. Therefore

It is ordered and decreed that the judgment rendered below is avoided and reversed, and that the injunction of the plaintiff is maintained and perpetuated, and that the plaintiff recover of the defendants the costs of both courts.

DeBlanc, J.

For the reasons given by me, in “Oity of New Orleans vs. Fourohy,” reported in the 30th A. p. 910,1 respectfully dissent from ■the opinion and decree in this case.

On Rehearing.

White, J.

Section one of act No. 8 of 1875, acts of 1875, page 107, provides as follows :

“ That any and all cotton and woolen factories and mills or establishments for the manufacture of cotton or woolen yarns, which are how in operation or which shall be put in operation at any time within .five years from the passage of this act, whether by an individual or firm ■or incorporated company, shall upon payment of one hundred dollars .at the beginning of each year to the State, and one hundred dollars to the city or parish in which said factory is situated, be exempt from further State, parish, and municipal taxation for a period of twenty .years from the commencement of operations, and no other State, parish, or municipal tax shall be assessed, levied, or collected during the whole ■or such part of the time as said mills or factories shall be used for the .purposes hereinbefore specified on the capital invested or employed in ■the production of said articles, nor on any lands, buildings, machinery, property, franchises, or appurtenances used therefor or therewith and ■necessary thereto.”

Section two provides for notice by the corporation or individual of the commencement of the operations, mentioned in the preceding section, to the Auditor of Public Accounts.

Section three is as follows:

Sec. 3. Be it further enacted, etc., That whenever any individual ■or individuals or incorporated company shall within said period of five years avail himself or themselves of the benefits and advantages conferred by this act, and shall bona tide commence the business of -manufacturing as above indicated, the commutation and immunities granted by this aet shall be in the nature of a contract not to be defeated.

Under these provisions the issues presented are whether the mandate of- the constitution, found in article 118, saying “the General Assembly shall have power to exempt from taxation property actually used for church, school, or charitable purposes,” strikes with constitutional nullity the provisions of the aet of 1875 already quoted — and if not, whether the act of 1875 violates the terms of the same article, saying “ that all property shall be taxed according to value.” With these issues the matters for consideration may, we think, be analyzed and determined by examining and answering the following questions :

1. Does the provision of the constitution, as to exemption, contain an enumeration, and hence a limitation on the power of the General Assembly to exempt from taxation ?

2. If so, does the act of 1875 create an exemption ?

3. If not, is the act of 1875 a specific tax, and therefore a violation •of the ad valorem rule as expressed in the constitution ?

First — That the grant of power to the General Assembly to exempt property actually used for church, school, or charitable purposes, is an enumeration, and hence an exclusion of the power to exempt all property not included in its terms, is now the settled jurisprudence. We recently so held in City vs. St. Anna’s Asylum, ante page 292, and our conclusion in that case was founded on an unbroken current of authority. City of New Orleans vs. Bank of Lafayette, 27 An. 276; City vs. Metropolitan Loan and Savings Bank, 27 An. 646 ; City of New Orleans vs. People’s Bank, 27 An. 648 ; City vs. St. Charles R. R., 28 An. 498 ; City vs. St. Patrick’s Hall, 28 An. 512 ; City vs. Lafayette Insurance Co., 28 An. 756.

This line of adjudicated cases is strenuously attacked as ill-considered and not founded. As a general rule, we would rest content under such circumstances by applying the doctrine of stare decisis in so grave matter as this is, involving the validity of a grant by the Legislature; but because of the earnestness and ability with which the views of counsel have been presented, as well as on account of our former opinion, in which we held the power of exemption to be unrestricted, which we have concluded' was erroneous, we will not be content with invoking stare decisis, but will review the jurisprudence in order to demonstrate the correctness of the theory upon which it is founded. No two principles are more elementary, in construing State constitutions, than those teaching that every power not denied exists, and that where a power, which would if not denied exist, has the methods of or instances when it may be exercised enumerated and defined, the existence of the enumeration is a restriction on the exercise of the power to the cases covered by thd enumeration.

The rule is thus stated by Judge Cooley in his work on Constitutional Limitations : “ Plenary power in the Legislature for all purposes of civil government is the rule. A prohibition to exercise a particular power is an exception. In inquiring, therefore, whether a given statute is constitutional, it is for those who question its validity to show that it is forbidden. I do not mean that the power must be expressly inhibited, for there are but few positive restraints upon the legislative power contained in the instrument. The first article lays down the ancient limitations, which have always been considered essential in a constitutional government, whether monarchical or popular ; and there are scattered through the instrument a few other provisions in restraint of legislative authority. But the affirmative prescriptions and the general arrangements of the constitution are far more fruitful of restraints upon the Legislature. Every positive direction contains an uielication against every thing contrary to it, or which would frustrate or disappoint the purpose of that provision.” P.87.

And, again : “Another rule of construction is, that when the constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition or to extend the penalty to other cases.” P. 64.

In fact, as instruments of construction, these rules have become truisms, and furnish the light by which courts and authors have uniformly guided their judgments and opinions along the narrow and perilous paths of constitutional interpretation. Reading by these rules the declaration that the General Assembly shall have power to exempt from taxation property actually used for church, school, or charitable purposes,” how else can it be qualified than as an enumeration ? The power to exempt would have been all extensive without expression. Is not, therefore, the grant of the power, for the words are “ shall have power,” in particular and specified instances by necessary, by inevitable, by overwhelming inference, a limitation on the exercise of the power other than as specified? Boundless, indeed, would be the field of inquiry if not thus limited. Eor instance, the constitution has called this court into being and fixed the salaries of its members; shall we say that all powers not being denied, therefore because the words in the constitution fixing the salary do not say only that the legislative power to increase at will exists, or conversely speaking, that because the words “ not less” are absent, that the right to decrease at pleasure can be availed of ? Carry the illustration to the other departments of government, and the conclusion seems irresistibly certain, that not only fatal to government but to society and human happiness would be the departure by courts from the familiar rule easpressio uniiis est easclusio alterius, with reference to which the constitutions of all the States of this Union have been adopted and construed for so many years. Nor do these views necessarily conflict with those expressed by this court in the cases New Orleans vs. Fourchy, 30 An. 910, or New Orleans vs. Davidson & Hill, 30 An. 554. Iti those cases, whatever may have been the words in which the thoughts were conveyed, we held in effect —

1st — That the rule of equality and uniformity was not violated by the exclusion from the objects of taxation of five hundred dollars of household and kitchen furniture, operating from the fact of its being an exclusion upon every class of society or condition of life. We say exclusion, because as justly remarked by Judge Cooley in his recent work on Taxation, “ some of these, such as the exemption of household furniture, tools of trade, etc., and the limited personal property which very poor persons may be possessed of, are to be looked upon rather as beiog in the nature of limitations of the general rule than as exceptions from it. The taxation is only over and above what is absolutely needed for the owner’s support.” P. 130.

2d — That even if the provision that “ all property shall be taxed according to value” was mandatory in directing that all property should be taxed, as it did not contain an enumeration of the objects of taxation it left necessarily scope to legislative discretion in defining such objects, which discretion was not transgressed by the exclusion from.', the definition of the objects of taxation $500 of household furniture.

Be this, however, as it may, our opinion in the present case is not’ predicated on the postulate that all property must be taxed, but that when property is taxed and comes within the general limit of the objects of taxation the only power delegated to the General Assembly to* exclude either persons or classes from the general rule by it adopted is-found in the constitution, that is, property “actually used for church,, school, or charitable purposes.” This may be illustrated by saying that if the constitutional provision were as follows : “ The General Assembly may fix and define the objects of taxation, and shall have power-after so fixing to exempt property actually used for church, school, or charitable purposes,” we would consider an exemption of property included within the defined objects, but not embraced by the enumerated’ power to exempt, as violative of the-constitution. For the power to-define the objects of taxation would be one thing, and that of exempting from the limits as defined and fixed another. The one is the right to say generally the line where taxation begins, the other to deflect that general line as marked by general laws, so as to exclude individuals or classes from their operation. The right to make general laws and the authority to exclude individuals from them, when made, differ in their nature and efféct — in their nature, because the essence of just legislation is universality; in their effect, because universality creates no-contract, and leaves the powers of government to be transmitted unimpaired to each successive repositary of legislative authority. Exemption,, on the contrary, under given conditions enters the domain of contract and contains the germ of destruction to result from the exercise by an agent, the duration of whose mandate is limited, of the power to contract for an immunity which survives the life of the mandatary and divests- the people for the future of an essential faculty of government, the right to-tax.

The argument as to the power of tho General Assembly to further-wise purposes by a judicious use of the right to make exemptions is not cognizable by judicial tribunals. It suffices for them that the constitution has spoken. But if the judicial mind could so forget its duty as to-allow arguments of expediency to enter the scales of justice against the letter of the constitution, it could but be admonished by the history of modern society of the fallacy of the alleged expediency; it could not fail to compensate the possible instrumentality for good of the power to exempt, against the certainty of harm to flow from its untramm-eled use, harm creating favored classes and property, and which imports the power to abdicate the very essence of sovereignty and of all just government, a uniform, equal, and unexempted bearing of the public burdens. If, as we are told, the inhibition of the power to exempt is divesting the General Assembly of its just authority, we can not fail to see that it is. a divestiture in the interest of society to prevent the contractual abandonment of an equally sovereign power against society and in the interest of selected persons or classes.

Third — The power to exempt not being within the legislative authority, except as to enumerated classes, does the act of 1875 create an exemption not covered by the constitutional provision ? Certainly, the property is not either church, school, or charitable, and equally certain is it that the right not to pay taxes is an exemption from taxation. The law conferring the right so defines it; “shall be exempt from taxation” is the language of the statute. But it is said the property is not exempt from taxation; the taxes are simply commuted. That the power to commute is forbidden by the denial of the power to exempt has been determined. City vs. Lafayette Insurance Co., 28 An. 756; City vs. St. Charles Company, 28 A. 498.

It seems obvious that these decisions are founded on reason, for the right to commute being simply an incident of the power to exempt, the-negation of one is the denial of the other. The books, so far as we have been able to examine them, are singularly deficient in definitions of tho-right to commute. Defined from several points of conflicting thought, it may, we think, be said to be “ a payment of a designated sum for the-privilege of exemption, or the selection, in advance, of a specific sum in lieu of an ad valorem tax.” If the first, it is indubitably an exemption ; if the second, and this covers the third inquiry proposed, then it is a-specific tax, and hence violates the rule of ad valorem, which prescribes-that all property shall be taxed according to value. Either point of the dilemma is fatal to the plaintiffs pretensions.

For these reasons, we think our former decree erroneous. It is-therefore set aside, and the judgment below is affirmed with costs.

Dissenting Opinion.

Manning, C. J.

The constitutional mandate, contained in art. 118-;. requires that all taxation of property shall be ad valorem. To my mind, the only difficulty in the present case is presented by the question, whether the provision of the act of 1875, exempting cotton and woollenfactories, etc. from further taxation on the payment of one hundred' dollars to the State, and a like sum to the City or parish, is not a specific tax.

The terms of that Act preclude such a construction. It does not impose a specific tax, to be paid by the property, or its owner, unconditionally and absolutely, but it is an exercise of the legislative power of" exemption, coupling with it a requirement that in order to make that exemption practically operative,' a given sum must be paid into the Treasury. If the decision in the case of St. Anna’s Asylum contains anything repugnant to the opinion read on the first hearing of this cguse, it must have been incidentally stated. At any rate it escaped my notice. I adhere to that opinion.

Concurring Opinion.

Marr, J.

I prefer to put my concurrence'in the deoree'just pronounced on the single ground that the commutation authorized by the Act of 1875, is not an exemption from taxation, but is the imposition of a specific tax, which is forbidden by the constitution, article 118.

The constitution of 1812 contained neither grant nor limitation of the power of taxation. Article 127 of the constitution of 1845, of which article 123 of the constitution of 1852 is a literal copy, seems to have had in view no other than the precise objects expressed in its terms; and to have been formed with no other design. These objects were:

1: To formulate the principle of equality and uniformity in taxation :

2: To prohibit specific taxation, by subjecting every species of property taxed to the same rate on valuation:

3 : To authorize an income tax on trades and professions :

4: To recognize the power of the Legislature to select the objects of taxation, and, consequently, in the exercise of its discretion, to exempt from taxation.

The constitution of 1864, article 124, seems to have been framed with the special design of depriving the Legislature of the power to select the objects of taxation, and the consequent power of exemption, except with respect to property actually used for church, or school, or ■charitable purposes.

Article 118, of the constitution of 1868, is copied from article 124, of the constitution of 1864, except that it substitutes the permissive “ may,” for the imperative “ shall,” leaving it discretionary with the Legislature to levy an income tax.

It would seem to be expedient, good policy, to leave some discretion to the Legislature, some power, carefully defined and strictly limited, to exempt from taxation other property besides that actually used for church, school, or charitable purposes ; but a comparison of articles 127, of the constitution of 1845, and 123, of the constitution of 1852> with the corresponding articles 124 of 1864, and 118 of 1868, will demonstrate, as I think, that it was the intention of the framers of the existing constitution to leave no discretion with the Legislature beyond that expressed in its terms. See the dissenting opinions in Eourcby’s case 30 An. 914, 915.

The power to exempt from taxation is a very delicate and a very important one. In my judgment the exigencies of this case do not require a decision as to the extent of that power; and I prefer that it should not be passed upon finally now, because I do not consider it necessary to do so. I apprehend that the tribunals of Louisiana, perhaps some of the decisions of this Court, have been unduly influenced by decisions in other States, and the doctrines enunciated by eminent text-writers on taxation, based upon constitutional provisions and legislation, not identical with, if not materially different from our own ; and that the only safe guide for us is the text of the constitution itself.

Concurring Opinion.

DeBlanc, J.

I concur in the opinion and decree read by Mr. Justice White, for the reasons given by me in the dissenting opinion by me expressed in the case of “City of New Orleans vs. Eourchy.”

Concurring Opinion.

Spencer, J.

I concur in the decree in this case, but prefer to rest my concurrence upon grounds somewhat modified, though, perhaps, not materially different from those expressed by Mr. Justice White.

I adhere to the doctrine in Eourchy’s case, 30 A. p. 910, to the effect that the Legislature is not obliged to make taxation universal; that it may omit or exempt from taxation, by a general provision, the whole or a stated amount of a species of property. Perhaps it would be more exact to say that the Legislature may fix the point where taxation shall begin on any species of property that is taxed, or may omit the species entirely. Thus, it may say that household effects shall only be taxed on the excess of their value over $500; or it may omit it entirely from the list of taxable property. But within the limits that the tax operates on any species of property, no exemption can be made, except for “ church, school, or charitable purposes.” Thus, in the case put, the excess over $500 in value of all household furniture must be taxed equally and uniformly, unless it is “used for church, school, or charitable purposes.”

But, in my judgment, the strongest reason for holding this act relative to taxation of cotton factories unconstitutional is that it in reality imposes a specific tax. The substance and marrow of that act is to fix a specific tax of $100 on cotton factories regardless of value. Plaintiffs can not maintain that it is a license tax for the privilege of carrying on a cotton factory, for if that be so there is no foundation for their claim of exemption from a tax on the property■ itself. Because the Legislature fixes the license of a class of persons pursuing an occupation at $100 is no reason that the property and capital employed in that business be not taxed. The act declares in effect that payment of $100 shall be in discharge and lieu of all taxes upon the property and capital of the factory. It is, therefore, necessarily a tax on the property, and violates article 118 of the constitution, which requires all taxation to be ad, valorem.


source: Caselaw Access Project

author: Manning, C. J.

license: Public Domain

text:
    No. 5976.
    Cecile Dupré and Husband vs. Martin Soye et al.
    ■Where an emancipated minor, who has sold her undivided interestin an immovable, recognizing in the act of transfer a mortgage on the property in favor of a certain mortgagee, sues to annul her emancipation (making the mortgagee a partyto the suit) in order to invalidate the mortgage, and afterward, and before a final decree in the suit to annul, contests by way of third opposition the mortgagee’s right to foreclose, on the ground that the mortgage was invalid because of her minority, a final decree in the suit to annul the judgment of emancipation maintaining the judgment, will be conclusive of the contest in the third opposition, in the mortgagee’s favor.
    No heir of a father, whether major or minor, can dispute the binding effect of a bona fide mortgage on community property executed by the father during the life of the mother.
    ^PPEAL from the Sixth District Court, parish of Orleans. Saucier,

      Clark W. Besangon for plaintiff and appellee.

      JSdward Bermudez for defendant and appellant.
   The opinion of the court was delivered by

Manning, C. J.

Martin Soye obtained executory process for the foreclosure of a mortgage upon a small tract of land, and the plaintiff filed a third opposition thereto, alleging that she is the owner of an undivided ninth part thereof, and that the several Acts to which she is a party, which apparently recognise the validity of the mortgage, were executed while she was a minor, and she now prays that they be annulled.

The plaintiff’s father, Nicholas Dupré, mortgaged this property to Soye in 1852, to secure the payment of $4,000.00, borrowed money. This loan appears to have been only partially paid, and in 1861 another mortgage was executed for $3,000. Dupre’s wife died after this second mortgage, and her succession was opened, her husband appointed administrator, who filed his account — placed Soye on his tableau as a mortgage creditor of the community — and exhibited a balance due to each one of the children, nine in number, of $357.26. This was however provisional. Soye had not been paid, and the mortgaged property had not been sold.

The father then died, ánd the children accepted his succession unconditionally, and were put in possession of his estate. The nine heirs went before a notary, and eight of them sold to their brother, E. S. Dupre, the mortgaged property for $7,500.00, the stipulation being that the purchaser should assume the payment of the Soye mortgage, and for the residue he executed several notes to each of the heirs for their respective shares. This was in 1870.

During the previous year the plaintiff had.been emancipated by a decree of court, and in August 1873 she instituted a suit to annuli that judgment of emancipation, and it was annulled in the following month. Martin Soye was a party defendant to that suit, and so was the plaintiff’s brother to whom she, uniting with the other heirs, had sold the land, and also Adolph Dupre her under-tutor, and even the lawyer who had conducted the proceedings for emancipation, all of whom were charged with divers villainous frauds and ill-practices. They appealed suspensively from the judgment annulling the decree of emancipation.

A week after that decree had been rendered, this suit was filed. It Is based of course upon the idea that that decree would be maintained. All the proceedings in it were had while that appeal was pending in this court. The judgment was rendered in July 1875 in favour of the plaintiff, and the appeal in the other case was still pending. That appeal was finally heard in 1876, and the judgment of the lower court was reversed. Dupré v. Dupré, 28 Annual, 418.

That ends the matter now, as it ought to have ended it then. That decree, rendered in a suit to which Soye was a party, and having for its object the invalidation of his mortgage, adjudicated the matter in dispute — determined finally the legality of the decree of emancipation, and adjudged that she was competent to do those acts, the undoing of which Is the object of this suit.

But were, it otherwise, she is utterly without cause of complaint. The debt which Soye holds is the debt of her father, and has been kept alive. She accepted his succession unconditionally, or if it be assumed she was unrelieved of the disability of minority, the law accepted it for her with benefit of inventory. She has np right to any portion of the land until the debt is paid, for it is not pretended that the succession ever had any funds that might have discharged the debt. The sale to the brother by all the other heirs was manifestly a family arrangement by which it was hoped their father’s debt would be paid, and some surplus created for the heirs. The plaintiff seeks to avoid paying her share of the debt, and yet to take her share of the property.

The Divine command to honour thy father and thy mother is but the echo of a sentiment that nature has planted deep in the human heart, and the laws of all countries, dealing with men’s acts and yet enforcing that sentiment, prohibit the child from taking the father’s property unless he pays the father’s debts.

The judgment of the lower court is avoided and reversed, and it is now ordered and decreed that there be judgment in favour of the defendants, and that they recover of the plaintiff their costs in the' lower court, and the costs of appeal.


author: Mare, J. DeBlano, J. Manning, C. J.

text:
    No. 7170.
    Chas. E. Alter vs. Joseph O’Brien. Francis Johnson, Third Opponent.
    An appeal will lie from a judgment on an intervention on. third opposition claiming less'than the appealable amount, when the demand of the plaintiff is for an appealable amount.
    The funeral expenses of a debtor, or of his wife and children, operate as a privilege on the real estate of the community, when thero is no other source from which those expenses can be paid, and this privilege ranks any mortgage on such real estate.
    When a mortgage creditor proceeds in a court of ordinary jurisdiction to enforce his mortgage on property owned by the community which had existed between the debtor and his deceased wife, a creditor with a privilege on the mortgaged property on account of the funeral expenses of the deceased wife is entitled to come in and claim his lien on the proceeds of the property, and a representative of the succession of the wife is not a necessary party to the proceeding.
    ^PPEAL from the Fifth District Court, parish of Orleans. Rogers,

      Geo. L. Bright for plaintiff and appellant.

      James Timony for opponent and appellee.
   On Motion to Dismiss.

Mare, J.

Alter, mortgagee, obtained an order of seizure and sale against O’Brien, the mortgagor; and the mortgaged property was adjudicated to him for $8000. Johnson took a rule on Alter and the sheriff, in the nature of a third opposition, claiming out of the price of the sale $350. There was judgment in his favor for $131; and Alter appealed. Johnson moves to dismiss the appeal, on the ground that the amount in controversy is not sufficient to give this court jurisdiction.

In Picard & Weil vs. Wade, we reviewed the jurisprudence pertinent to this question, and held that it was established, beyond controversy, “that an appeal will lie from a judgment on an intervention or third opposition claiming less than the appealable amount, where the demand of plaintiff is for an appealable amount.” 30 An. 625.

The motion to dismiss is overruled.

On the Merits.

The opinion of the court was delivered by

DeBlano, J.

From the 7th of September to the 10th of October, 1877, Mrs. O’Brien and two of her children died, and — after their death— Charles E. Alter caused to be seized and sold, and — at the sate — purchased, for less than the claim which he had against defendant, the real estate mortgaged by the latter to secure said claim.

Mrs. O’Brien left nothing, and the property thus mortgaged and sold belonged to the community which existed between her and her surviving husband. He and that community are insolvent, and Francis Johnson — an undertaker-^ claims to be paid by preference, and out of the proceeds of the sale to Alter, the expenses incurred for the burial of Mrs. O’Brien and her children.

The district court maintained Johnson’s opposition, but for exclusively the amount which he olaims for the burial of the deceased .wife. From that decree Alter appealed, and — in answer to his appeal — Johnson prays that the decree be amended, by allowing the whole of the account on which he based his third opposition.

Johnson’s account is correct and due — this is admitted. His demand is resisted on the grounds :

1. That Mrs. O’Brien’s succession owns no property, this is true ; that — when the mortgage was given to Alter, she — as partner in community — had no interest in the estate subject to that mortgage — as to this we express no opinion — and that her interest in the community was and still is subordinate to its debts — as a general rule, this is indisputable.

2. That, in as much as the proceeds of the sale are insufficient to satisfy Alter’s mortgage, there is no money which can be transferred to the probate court for distribution, and — if there was — alone the representative of Mrs. O’Brien’s succession would be entitled to claim it.

To sustain one of his positions, plaintiff’s counsel relies on our decision in Gally vs. Dowling, in which we held — in substance — that the curator of a succession, who does not allege the existence of debts priming the vendor’s mortgage, is not entitled to the proceeds of the mortgaged property realized under an order of seizure and sale obtained by, and executed at the instance of the mortgagee. Here, instead of a curator claiming against a privileged creditor, without alleging the existence of any debt superior in rank to that of the creditor — we have an undertaker who asserts that his privilege outranks the mortgage of the adjudicates of the only property which belonged to an insolvent community and insolvent spouses. We adhere to the opinion expressed in Gaily vs. Dowling, but we do not consider it applicable to this case.

Does Johnson’s claim for funeral expenses rank that of Alter, the mortgagee ?

The Code expressly provides VasX privilege is a right, which the nature of a debt gives to a creditor, and which entitles him to be preferred before other creditors, even those who have mortgages. — C. C. 3186 (3153). Funeral charges are secured by a privilege which extends alike to movables and immovables. C. O. 3252 (3219.) Though the lessor’s right on the movables found on the place leased, is of a higher nature than a mere privilege — C. C. 3218 — (3185)—that extraordinary right yields to the privilege for the funeral expenses of the debtor and of his family, when there is no other source from which they can be paid. C. C. 3257 (3224).

This is just: were it not for the privilege which the law allows to those who dig the grave, furnish the coffin and drive the hearse, many a lifeless frame, deprived of sepulture, would rot in unnoted or forsaken homes. Were it not for that privilege, when Death enters a city and knocks at every door — watchful and indefatigable as it is, Charity would inevitably be unequal to the increased task which — otherwise—would be imposed upon it.

In whomsoever may be the title to the property, whether in the husband or the community, howsoever encumbered it may be, the proceeds of the sale of the property can — under no circumstances — be applied to the satisfaction of a conventional mortgage, to the exclusion of the funeral expenses incurred, not only for the debtor, but for his family, when — in the language of the Code — there is no other source from which they can be paid.

“Ce privilege” — according to the most eminent of the French commentators — ■“ a ótéintroduit: 1. dans l’intéret des mceurs publiques, qui auraient áte blesses si le corps d’un homme insolvable fut resté sans sepulture ; 2. dans l’intórét de la salubritó publique, qui eut étó compromise si le corps n’eut pas étó enseveli. * * * Les motifs qui ont fait admettre ce privilege, l’intórót de la décence et de la salubrité publiques, existent, soit qu’il s’agisse de l’ensevelissement de débiteur, de ses enfants et proches parents.”

Troplong, Privileges et Hypothéques, vol. 1, No. 132.

Paul Pont, Priviléges et Hypothéques, vol. 1, p. 47.

Mourlon, Examen du C. N. vol. 3, p. 502.

Gilbert, Codes Annotés, p. 912.

The objection that the funds retained by the sheriff under the order granted on the third opposition, can be paid but to the representative of Mrs. O’Brien’s succession, which is not represented in this suit, is not tenable. As between Johnson and Alter — two of the creditors of an insolvent community — the right of preference claimed by the former was properly passed upon and determined in the jurisdiction wherein the-latter proceeded to enforce his mortgage.

At the death of Mrs. O’Brien, she and her husband owned no separate estate, and the whole of the property belonging to the community which heretofore existed between them, was insufficient to satisfy its liabilities. The common property was sold, purchased by Alter,, and — less a fraction — he kept, as a creditor, the proceeds of that sale. There never was in the succession of Mrs. O’Brien, there no longer is in or of the community a single right or effect upon which to administer. Johnson alone is entitled to a sum which was claimed by him, which was due and allowed to him — to which no succession is entitled, which was not allowed to, and is neither claimed by or for any succession, and that sum retained to satisfy his demand, can be paid but 'to him.

It is — therefore—ordered, adjudged and decreed that the judgment appealed from is amended, and ,that Francis Johnson recover — out of the proceeds of the sale from the sheriff to Charles E. Alter, and in preference to the latter, the sum of three hundred twelve dollars and fifty cents: the costs of the appeal to be paid by Alter — and, as thus amended, the judgment of the lower court is affirmed.

Dissenting 'Opinion.

Manning, C. J.

The interest of a wife in the community property, as owner, begins only after all the debts of the community are paid. If the community is insolvent, the wife has no succession guoad the community property. Neither the wife nor her heirs, she being dead, have any but a contingent and eventual interest in the community, and until the final discharge of the debts for which the community is liable, it cannot be known whether this contingent interest will eter become an absolute right. Hawley v. Crescent City Bank, 26 Annual, 230, and authorities there reviewed. Gally v. Dowling, 30 Annual, 323.

The husband, O’Brien, had mortgaged this property during the existence of the community. The mortgage debt was not wholly satisfied by its sale. There was therefore no residuum, and the wife, having no separate property, had no succession to be affected by privileges of any kind.

The undertaker’s claim for the funeral expenses of herself, and her children, is a sacred debt, enforceable against the surviving husband and father, but there is no succession property upon which it can operate. The relation of the husband to the community property differs in many respects from that of the wife. He is its head and master. He can mortgage and alienate it. Upon his death, the community being insolvent, it is treated as his succession, and the privileges established by law rest upon it, and will be recognized.

But were it otherwise, how can a privileged creditor of the wife’s succession proceed in his own name against a fund that was never brought into her succession, and subject it to the payment of his claim? According to the Opponent’s theory, his claim is against her succession, and therefore he must prefer it against the representative of that succession. The mortgage creditor of -the husband is certainly not that representative.

The only foundation, upon which the claim can rest as a privilege, is the fact that the property sold was in whole or in part succession property of the wife. It is only as a privilege that it can rank a mortgage. When the Code assigns priority of rank to funeral expenses upon succession property over certain other claims, it necessarily means the funeral expenses of the owner of the property. If this property belongs to the succession of the wife, Alter is not administering it, and the only person who could claim of him that part of the fund which belongs to her succession, would be its representative, who would have to distribute it under the orders of the probate court.

I think the Opposition should be dismissed.

Behearing refused. ,


author: DeBlanc, J. White, J.

text:
    No. 7344.
    Succession of Frances E. Law, Wife of Archibald W. Beard.
    Where a testator bequeaths all his property to his legatee, but qualifies the disposition by adding that the property is “ to be used, enjoyed, and occupied,” during the natural life of the legatee, nothing is devised but the usufruct of the property.
    .estamentary disposition which gives the usufruct of certain movables and immovables to one person who is charged with their preservation and the full property of the same, after the usufruct’s death, to another person, and in case of the latter’s death gives the property to still another person, is a valid disposition. It does not involve a prohibited substitution.
    REPEAL from the Parish. Court of Bed Biver parish. Broughton, J.

      Egan & Ogden, Jos. II. Bierson, and James F. Pierson for heirs of F. E. Law, appellees.

      L. B. Watkins for A. W. Beard, appellant.
   The opinion of the court was delivered by

DeBlanc, J.

Frances E. Law died in August 1870, leaving a last will, the most important clause of which reads as follows :

“After all my just debts are paid, I give and bequeath unto my beloved husband, Archibald Welles Beard, all my property of every kind and description, consisting of lands, stock, household and kitchen furni ture, farming tools, etc., to be used, enjoyed and occupied by my said husband during his natural life; and at his death, the half of my property or money, to go to Francis Henry Beard and Charles Porter Beard, children of William L. Beard and Mary Ann Law, and the other half to go to the children of Mary Ann Law and William L.'Beard; and in case of the death of Francis Henry Beard, his part of the property to go to Charles Porter Beard; and in case of the death of Charles Porter Beard, his part to go to Francis Henry Beard ; and in case of the death of both, then their half of the property to go to the children of Mary Ann Law, wife of William L. Beard.”

This will was probated a few days after the death of the testatrix, and — more than six years after — A. W. Beard, the surviving husband, alleging that he was, under said will, the instituted heir and universal legatee of his wife, applied to the probate court to be placed — as such— in possession of all that composed her succession.

A curator was appointed to represent the absent heirs of Mrs. Beard. He filed an answer containing several admissions favorable to the applicant, and — -these admissions made — -denied, in general terms, the validity and legality of the last will of Frances E. Law.

The lower court recognized A. W. Beard as the instituted heir and universal legatee, of his deceased wife, and ordered that — as such — he be put in possession of the property left- by her, and discharged as the executor of her will.

Frances E. Law died without descendants or ascendants, and her legal heirs are a surviving sister and the children of two deceased brothers. Those children, who — in the lower court — were represented by a curator, have alone and through counsel of their own choice, applied for and obtained an appeal from the decree already mentioned, and contend:

1. .That, if legal and valid in substance and in form, the last will of Frances E. Law does not constitute A. W. Beard the instituted heir and universal legatee of said deceased ; but,

2. That the will referred to contains prohibited substitutions and ftdei commissa, and is absolutely void. ■

Is there — in the clause of the testament which we have transcribed —a disposition by which any donee, heir or legatee, is' charged to preserve for or return — the sense of the 1520th article of our Code — any thing to any third person? The testatrix gave to her husband the whole of her property, but was it — as he contends — in full ownership ? Her bequest is qualified by her own expressions, and that qualification, written by herself, is “ that the property designated by her was given to her husband to be used, enjoijed and occupied by her husband during his natural life.” There can be no doubt that — so far as he is concerned— that clause established, in hie favor, but the usufruct which, by a testamentary disposition, may be established on any description of estates, movable or immovable, corporeal or incorporeal; nothing more, nothing less.

C. C. 540 (532), 541 (533), 1522 (1509).

Unless otherwise provided, the right of usufruct expires — under our laws — at the death of the usufructuary. C. C. 606 (601). In this case, its duration is fixed by a clause of the testament; the use, enjoyment and occupancy of the property, according to the terms of said clause, are to last during the life of the husband, and — during that period — he is necessarily bound to preserve for the owners, whomsoever they may be, heirs or legatees, the property subject to his usufruct.

If too strictly construed, and construed without regard to the provisions of the Code, which authorize testamentary dispositions in which, as in the case of a legacy of the usufruct to one, the naked property to another, the obligation to preserve for a third party is imposed by the terms of the will and the law, the 1520th article of the Code would not merely be inconsistent with those provisions, but in any and every case of that description, would invariably nullify the right, whatever it might be, bequeathed and acquired under the recited circumstances. C. C. 1522'(1509).

“II resulte, en effet, des testes — says Mourlon — qu’un légataire ou donataire peut étre tres valablemeni charge de conserver les biens dont on le gratifie, et de les rendre a un tiers designé.”

Mourlon, vol. 2, p. 471. C. C. 540 (532); 1698 (1691).

■ Considering — as we do — that the legacy to A. W. Beard is plainly that of a right of usufruct, the fact that — as usufructuary — he is bound to preserve for, and that his own heirs may have to return to others the property comprised in the legacy of the usufruct, does not constitute a prohibited substitution, and cannot alone affect the validity of the disposition.

“The condition which — in the intention of the testator — does but suspend the execution of the disposition, does not hinder the instituted heir or legatee from having a right acquired and transmissible to his heirs,” from the death of the testator. R. C. C. 1699 (1692).

Up to the death of A. W. Beard, no heir, donee or legatee is charged —in the sense of article 1520 of the C. C. to preserve for or return any thing to third parties. At his death and in the words of the testament, the half of the property or money belonging to his wife, was to go to “Erancis Henry Beard and Charles Porter Beard, children of William L. Beard and Mary Ann Law, and the other half to go to the children of Mary Ann Law and William L. Beard; and in case of the death of Erancis Henry Beard his part of the property to go to Charles Porter Beard ; and in case of the death of Charles Porter Beard his part to go-to Francis Henry Beard; and in case of the death of both these, their half of the property to go to the children of Mary Ann Law, wife of William L. Beard.”

That Mrs. Frances E. Law intended to institute, and — at-least—did attempt to designate those she intended to institute as the legatees of her estate, and of the usufruct of that estate, is undeniable. She gave to her husband the usufruct of the whole of her property, during his-natural life; and--immediately after she had-written the clause embracing that legacy — -she wrote: “at the death of my husband, the half of my property and money to go to Francis Henry and Charles Porter-Beard, and the other half to go to the children of Mary Ann Law and William L. Beard.”

“Sans doute — said Marcadé — il n’ya pas de termes sacramentéisexiges pour creer une substitution, et il importo peu de quels mots on s’est servi si la chose y est; mais il faut que.oette chose y soit certainement, évidemment, et s’il y avait ambiguité, doute, et qu’une clause put s’entendre et dans le sens d’une substitution et clans un autre sens, ce serait d ce dernier qu’il faudrait s’en teñir.”

Marcade, vol. 3, p. 376.

The light of that rule dispels the thin obscurity which rests on the-clause which we are called upon to construe. We admit that the words-used by the testatrix do not describe and convey — as fully as she could have described and conveyed them — her wishes and her intentions; but —from those words — only one inference can be drawn, and it is that— at the death of the testatrix — her estate would pass to her preferred legatees, Francis Henry and Charles Porter Beard, and the children of Mary Ann Law and William L. Beard, subject to the usufruct bequeathed to her husband.

Mrs. Frances E. Law instituted several heirs : to one — her husband —she gave the usufruct; to the others, the ownership of her entire-estate : that ownership vested in the latter at the death of the testatrix, and at the death of her husband, which — in the will — stands for the-date when the established usufruct is to expire — the possession of the-property composing the estate shall pass to those to whom it was given in full ownership.

The prohibited substitution, says Mourlon, comprises two distinct-dispositions — one to which is attached a resolutory condition — the other to which is attached a suspensive one. The fiduciary acquires on the estate entrusted to his care a right of ownership, but not an irrevocable one: that right is subject to the resolutory condition that the party for-whom the estate is to be preserved and to whom it is to be returned shall survive the fiduciary. That condition which — as to the fiduciary— is resolutory, suspends — as to the beneficiary who is in the second degree — a conditional right.

“Yoici, des lors, les caracteres de la substitution prohibóe: 1— charge de conserver jusqu’á la mort du grevó; 2 — obligation de rendre a cette époque, á l’appeló, s’il est alors capable de recevoir. Toute disposition qui renferme ces éléments est nulle; en Vabsence de Vun d’eux, elle est valable.”

Mourlon, Examen du C. N. p. 468, 472.

In this case, the husband — as usufructuary — was charged, as such and in no other capacity, and charged as well by the law as by the testamentary disposition, to preserve, until his death, those of the effects subject to his usufruct, which he could enjoy without changing their substance; but neither under the will or the law, was he or could he have been charged to transmit to any one and at his death, the’ limited right which — by his death — is to be blotted out of existence. “ Comment —as remarked by Marcadé — -cette mort ferait elle passer á telle ou telle personne le bien qu’elle anóantit? II n’y a done pas de substitution possible pour l’usufruct.”

Marcado, Explication du C. N. p. 382.

The assailed clause of Mrs. Beard’s will has none of the characteristics indicated by Mourlon as constituting the prohibited substitution: neither the usufructuary, nor any heir, donee or legatee named by her, did — under that will — acquire any eventual right or revocable title, which ^as to be preserved for, and, at their death, returned to any other. In case of death of her preferred legatees, what the testatrix described as their part of her property, was to be taken by other parties designated in the will, and — as we have already inferred — taken at her death. Such a disposition is expressly authorized by the Code.

C. C. 1521 (1508).

In “ Succession of Ducloslange,” this court said: “it is true that the testator does not expressly mention that he actually bequeaths to his natural children the real property of which he gives the enjoyment to their mother during her lifetime, but that such was his intention, appears to qs to be fairly deducible from the declaration that the whole property shall go-to them, or their representatives after her death.”

“It is sometimes difficult to ascertain the true character of dispositions of this sort; but in cases of doubt, it should always be presumed that the testator intended to do that which was lawful, rather than that which is prohibited by law. It is on this principle that this court, and the tribunals in France, have held that — unless a clause in a will presents a manifest substitution, and can be understood in no other manner, it will be sustained.”

4 R. R. 412 ; 7 M. N. S, 417 ; 4 L. 504.

“ The usufructuary can maintain against the owner and third persons all actions which may be necessary to insure the possession, enjoyment and preservation of his rights.” 0.0.556(549). Here, at the death of testatrix, her husband was, and — since her death — has continued to be in the undisturbed possession of the property subject to his universal usufruct, and it is evident that the only object of his action was to be recognized as the sole heir of his deceased wife, and to be discharged as the executor of her will. He is but the universal usufructuary of the estate of the testatrix, and — as the latter’s legatees are not parties to this action —he can not be discharged as executor.

These views dispense us from discussing the exception of prescription and res judicata filed by plaintiff.

We conclude:

1. That the last will of Prances E. Law contains no prohibited substitution.

2. That — by her will — her husband, Archibald W. Beard was instituted as the universal legatee of the usufruct of her estate.

3. That the universal legatees of her estate, in full ownership, are Francis Henry Beard and Charles Porter Beard, and the children of Mary Ann Law and William L. Beard, in the proportions mentioned in the will of said testatrix.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed.

It is further ordered, adjudged and decreed that Archibald Wells Beard is recognized as the legatee of the universal usufruct of the estate of Frances E. Law, his deceased wife, and — this recognition exoepted— his demands are rejected at his costs in both courts.

On Application for Rehearing.

White, J.

In this case it is urged that the construction placed by us on the will of the deceased is an addition to its terms, and, therefore, practically making a will. The meaning we have given to the words “to go to,” in the opinion by us expressed, is exactly that hitherto long since attached by this court to similar words in Succession of Ducloslange, 4 R. 410; and Roy vs. Latrolas, 5 A. 553. Even if we thought the views expressed in these cases latitudinarian, we would hesitate long before overthrowing the settled jurisprudence giving an interpretation to certain words when used in a last will.

Rehearing refused.


author: Marr, J.

text:
    No. 7233.
    Joseph Maumus vs. A. V. Beynet et al.
    An endorsement by the clerk of the lower court, appearing in the transcript of appeal, on the back of all the documentary evidence in the case, except the note and mortgage “ filed as evidence April, 1878,” is a sufficient note of evidence, when it appears that the note and mortgage were made part of the petition, and that the judgment is on the note with full recognition of the mortgage.
    "Where the judge below makes a written statement of the oral evidence given, it is sufficient for him to declare that his statement contains as far as he can recollect, and from notes of counsel, all the facts in the case.
    "Where the assessment, insurance, and rental of the property in dispute show that it must be worth over S500, this court will have jurisdiction.
    "Where property has been sold in a legal and bona fide way to pay the taxes due on it to the State, and the State becomes the purchaser, and subsequently after the time for its redemption has passed makes a valid sale of it to a third person, all mortgages on it previous to the tax sale in favor of individuals are extinguished, and no previous mortgage creditor can disturb the title or possession of any subsequent purchaser on the ground of fraud or simulation as between him and any previous purchaser.
    'The vendee of the purchaser of property at a tax sale has the same right to receive a title to the property from the Auditor, after the time for redeeming the property has elapsed, as the purchaser has.

      \ PPEAL from, the Sixth District Court, parish of Orleans. Bightor, J.

      Frank D. Chretien, for plaintiff and appellee.

      Alphonse Canonge for Dufour, defendant and appellant.
   On Motion to Dismiss.

The opinion of the court was delivered by

Marr, J.

Appellee moves to dismiss this appeal on two grounds:

First — That the record contains no note of evidence stating the documentary evidence offered on the trial; and no complete statement 'of the whole of the facts of the case.

Second — That this court is without jurisdiction, rañone materice, the demand being for four hundred dollars, with recognition of mortgage on the property described.

First. — All the documentary evidence in the record, except the mortgage and the note, is marked by the clerk, “filed as evidence, 27th April, 1878,” which was the day of the trial. This is a sufficient note of •evidence.

The note and the mortgage are set out in the petition, and each is made part of the petition. The judgment is on the note, for the amount •of it, with interest, with recognition of plaintiff’s right of mortgage on the property described. Certainly this shows conclusively that the note and mortgage annexed to, filed with, and made part of the petition, were in evidence, and were considered and passed upon by the court.

There is a statement of facts by the judge, which purports to give the oral testimony taken on the trial. The judge says : it “ contains, as far as I recollect, and from notes from counsel for plaintiff and defendant, all the facts in this case.” We think this is sufficient. In fact, the complaint of appellee is that the documentary evidence, “ which appears in the transcript, is not mentioned, although * * * it forms the foundation of the whole suit.”

Second. — The note ^and mortgage were executed by Beynet, one of the defendants. The mortgaged property was purchased at tax sale in 1876, and conveyed to one Mrs. Otto, by the tax collector. She sold the property to Mandin, another one of the defendants. The Auditor, after the expiration of the legal delay, conveyed the property to Man-din; and Mandin, by public act, before Lucatel, notary, conveyed the property to Dufour for three thousand dollars.

The suit was brought to subject this property to the mortgage •executed by Beynet on the ground that the several sales by the tax collector to Mrs. Otto, by Mrs. Otto to Mandin, by the Auditor to Mandin, and by Mandin to Dufour, were fraudulent, and without consideration.

The prayer is, that the sale and title to Mandin “ be declared simulated, collusive, fraudulent, illegal, null and void : that the sale to and title of Dufour be declared equally null, void, simulated, collusive and fraudulent; and that Beynet be declared and recognized as the true and legal owner of said property.”

The appeal is by Dufour ; and it is manifest that the matter in controversy, so far as he is concerned, is his ownership of the property. The evidence shows that it was assessed for taxation, in 1874 and 1875, at $5500: that it is insured at $800 ; and that it is rented for $35 a month. Beyond question the value in dispute is far above $500; and the jurisdiction ratione materias is complete.

The motion to dismiss is therefore denied.

On the Merits.

In 1853, during the existence of community between Beynet and his wife, since deceased, he acquired a property in the Third District. In 1874 this property was sold by the sheriff for taxes. It was afterward redeemed by Beynet; and on the same day he mortgaged his undivided half of it to Maumus to secure a note for $400, at one year, of same date, fifteenth October, 1874; being for a loan. In the act of mortgage it is stated that there was a general mortgage on the property in favor of the minor daughter of Beynet, for whom he was tutor, dating from twenty-fifth September, 1869.

On the twelfth of July, 1876, the property was acquired by the State for taxes of 1874, under the provisions of act 47, of 1873, section 9, page 101; and on the twenty-ninth of July the State tax collector sold it to Mrs. Otto, in the name and behalf of the State, under act No. 105 of 1874, subject to the right of the owner or any mortgage or judgment creditor to redeem, for the sum of $192 11 taxes due the State for 1874 and 1875, and costs and charges. The property went into the hands of Mrs. Otto free from mortgages imposed by Beynet.

On the twenty-third September, 1876, Mrs. Otto sold to Mandin, subject to the same right of redemption, as distinctly declared in the title, for $348 44. About ten months after the sale by the tax collector to Mrs. Otto, four months after the expiration of the term for redemption, on the twenty-sixth May, 1877, the Auditor of Public Accounts made a deed in the name of the State to Mandin confirming the title j and on the sixteenth November, 1877, Mandin sold and conveyed the property to Dufour for the stated price of $3100. All these titles were by public notarial acts ; and they were recorded on the days of their respective dates.

In February, 1878, Maumus brought this suit, against Beynet, Man-din, and Dufour, to recover of Beynet the amount of the note of 15th October, 1874, and interest: to have the sales to and titles of Mandin and Dufour declared to be simulated, fraudulent, collusive, illegal and void ; and to have Beynet recognized as the true and lawful owner of the property.

The petition charges, among other things, that Beynet, in order to defraud Maumus and to destroy his right of mortgage, permitted the property to be sold for taxes on the twelfth of July, 1876; that the sale by Mrs. Otto, and the Auditor’s deed to Mandin are illegal, simulated, collusive, and fraudulent: that no consideration was paid by Mandin, whose name was merely borrowed : that the property in law and in fact is that of Beynet, who furnished the money to Mandin, his son-in-law, to buy it; and that the title was made in the name of Man-din, in order to deprive petitioner of his right of mortgage.

That the sale to Dufour is null and of no existence in law or in fact: that the same is fraudulent, collusive and simulated : that no consideration was actually paid; and that the name of Dufour was borrowed for the purpose “ of still more deceiving petitioner and thus fraudulently deprive him of his legal, just, and equitable claim against the property.”

The judge of the district court did not consider the badges of simulation sufficient to justify the annulling of the sales ; but he was of opinion that the right to a valid title after the expiration of the period for redemption was personal to the original purchaser, and that his assignee did not enjoy the same right. He accordingly gave judgment in favor of Maumus, against Beynet, for the amount of the, note and interest; and ordered that plaintiff’s mortgage be recognized, and that the property be seized and sold in satisfaction of the judgment. Du-four alone appealed.

There is no testimony to impeach in any way the title of the State, acquired twelfth July, 1876 : nor the sale by the tax collector to Mrs. Otto : nor the sale by Mrs. Otto to Mandin : nor the deed by the Audit- or to Mandin ; nor the sale by Mandin to Dufour.

Mandin testifies that he used his own money in making the purchase : that his intention was to make his father-in-law Beynet a present of the property, if he ever was able to do so : that he intended that the debt to Maumus should be paid : that he was well off when he.made the purchase: that his business afterward became bad ; and that he was obliged to sell the property to Dufour in payment of a debt of $3100, which he owed for money borrowed some time before.

There were no relations between any of these parties and Mrs. Ottor so far as the proof goes. Beynet says he knew nothing of the sale, did not know, never heard of Mrs. Otto until he received a noto from her informing him of her purchase; and if he remained in possession that he must pay the rent.

It was proven that Dufour is a man of considerable means, owning several pieces of valuable real estate, and owing no debts ; and that he rented the property to Beynet at $35 a month. Mandin says he rented the property to Beynet before the sale to Dufo.ur ; but that he paid no regular rent.

Interest is credited on the note up to October, 1876 ; and again for six months from fifteenth October, 1876. Mandin made one, perhaps-both these payments ; but he says Beynet gave him the money.

On the sixteenth of October, 1876, Beynet insured the property in his name for $800; and at the expiration of the year the insurance was renewed, it does not appear by whose order.

There is no proof of fraud or collusion between aDy of these parties, except so far as it may be deduced, inferentially, from the facts stated. It can not be pretended that the title acquired by the State was either fraudulent or simulated : nor that there was fraud or simulation in the title acquired by Mrs. Otto. Nothing indicates fraud or collusion between Mrs. Otto and Mandin ; nor between the Auditor and Mandin: nor between Mandin and Dufour. Perhaps Mrs. Otto had discovered that Beynet owned but'half the property ; and that it was subject to the general mortgage in favor of the minor : and it was not unreasonable for her to prefer a present profit of $156 33 on an investment of $192 11, realized in less 'than sixty clays.

If the sale by Mrs. Otto to Mandin were void for any cause, this would not benefit Maumus. The only effect would be that the property would still belong to Mrs. Otto. The title of the State was superior to the mortgage in favor of Maumus; and neither Mrs. Otto nor her property acquired from the State was liable to Maumus for the debt due him by Beynet. If the sale by Mandin to Dufour was simulated or void for any cause, the only effect would be to leave the property and ownership in Mandin ; and no proof in this record charges him or his property with liability to Maumus for the debt due by Beynet.

No inference of fraud on the part of Beynet can be deduced from the fact that two years after the mortgage to Maumus the property was sold for taxes. The act of mortgage shows that on the fourteenth of September, 1874, the property was sold by the sheriff for taxes, and adjudicated to Sittig ; and that Beynet was able to mortgage it to Maumus only because on the fifteenth October, on the day the mortgage was given, Sittig, by act before the same notary, as is recited in the mortgage, transferred the property to Beynet.

Counsel for plaintiff maintains that the title conveyed to Mandin by Mrs. Otto was void because the period for redemption had not expired ; and that the Auditor’s deed to Mandin was void, because the vendee of the purchaser at a tax collector’s sale can not demand the Auditor’s confirmative deed. No argument is needed to show that the purchaser at any sale may validly sell such right as he has acquired ; and if the property in his hands is subject to redemption within a certain time, it passes to the vendee subject to the same right. The right of redemption existing at the time was set out and explained fully in the conveyance by Mrs. Otto to Mandin ; and as she would have been entitled to demand the confirmative deed of the Auditor, at the expiration of six months after the recording of the title of the tax collector to her, her vendee acquired precisely the same right from her.

At the time the insurance was effected by Beynet, the period of redemption had more than three months to run; and he had then an insurable interest. If he caused the insurance to be renewed, he did a very idle thing, since he could not have recovered for a loss occurring after he no longer had any interest in the property. The renewal in his name was a mere nullity. Of course Beynet could have done nothing by which the title of Dufour would have been affected or impaired.

A sale may be attacked as simulated by the creditors of the-seller; but a creditor of a former owner can not attack for simulation, a title acquired at a public sale, under legal process, by which the right and title of the former owner have been divested and have vested in another. If the State in this case acquired a good title, of which there is no doubt or question, Mrs. Otto acquired a good title against the creditors of Beynet: Mandin acquired a good title; Dufour acquired a good title.

If Mandin after his purchase from Mrs. Otto chose to allow his father-in-law to remain in possession, as Mrs. Otto had done, with or without the payment of rent, it is difficult to perceive how this could have prejudiced Maumus. Mandin was well off, his father-in-law was very poor. If Dufour, after his purchase chose to let the property to Beynet at $35 a month, this could not have injured Maumus. Beynet sub-let part of the house; and thus reduced his rent; and it was a good return to Dufour — more than thirteen per cent on his investment.

The judgment of the district court in so far as it recognizes the plaintiff’s right of mortgage, and orders the property in question to be seized and sold in satisfaction of the judgment in favor of Joseph Man-mus against A. Y. Beynet, is annulled, avoided, and reversed ; and it is now ordered, adjudged, and decreed, that the suit and demand of plaintiff, in so far as they relate to Jean Marie M. Dufour and the property in question, be rejected and dismissed at-plaintiff’s cos's ; that the said Jean Marie M. Dufour be recognized and declared to be the owner of the said property, and be quieted in his title and possession of the same; and that plaintiff pay the costs of this appeal.


text:
    No. 5463.
    M. Grivot vs. La. State Bank.
    A flnal judgment rendered by this court is not amenable to an action of nullity, instituted more than one year after the date of the jndgment, on the ground of error of fact and of law. Such a judgment has the force of res adjudicata as to the parties to it.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      TV. TV. Handlin for plaintiff and appellant.

      James McConnell for defendant and appellee.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff brought suit against the defendant-bank, and judgment was rendered against him in 1868, which on appeal to this court was affirmed in 1872. Grivot v. Bank, 24 Annual, 265. In 1874 he instituted this suit to annuli those judgments, alleging that they were erroneous — that the military order of Gen. Banks had been declared illegal by the U. S. Supreme Court in Planters Bank Tenn. v. Union Bank La. 1 Otto, 27 — that therefore there was “ gross error in the judgment of the Fourth district court, and in that of the Supreme court in affirming the same to the prejudice” of the plaintiff, and that “the court erred not only in fact, but in law, and the decree should have ■been in his favour.”

Grant that it did err. The mere statement of the alleged ground of action is of itself a demonstration that it cannot be maintained. The plaintiff had a final hearing of his complaint by the tribunal of the last resort. ‘He expressly alleges that it was final, and more than a year had elapsed.. The judgment then rendered misapplied the law, and if you will, misunderstood the facts, and it was so ascertained afterwards from a decision of another court in another case. How can that affect his case which was already at an end?

The defendant excepted for two causes; — 1. that on its face, the petition presented no legal cause of action ; 2. res adjudicata. Either is good.

Bes judicata pro veritaie accipiitar is a maxim of judioial necessity. Without it, the complicated business of the world could not move on. Stagnation would ensue. There must be an end of some things in order that others may begin. Nature obeys the same law. There must be decay in order that there may be reproduction.

One cannot escape the effect of a judgment by shewing that a different one would have been rendered, if proper testimony had been offered, for the judgment is res judicata. Grounx v. Abat, 7 La. 17, and specially pp. 34 et seq. Broussard v. Bernard, Ibid. 216. Towles v. Conrad, 3 Rob. 69. If money have been paid under a judgment -which has become res judicata, and the law upon which the judgment is based, is afterwards pronounced unconstitutional, the money cannot be recovered back. Jamison v. New Orleans, 12 Annual, 346.

And so, if as in this case, the law was misunderstood and misapplied, as was afterwards ascertained in another case, the judgment, notwithstanding it is based on bad law, is res judicata and must stand. And SO' true is this, and of such large application, that the form in which the' issue has been presented is of no consequence. For whether it be in a petition, or exception, or intervention, or rule, provided it is the same question between the same parties, res judicata bars another contest over it. JSxceptio rei judicatce obstat, qaoties inter easdem pe7rsonas eadem quaestio revocatur vel alio genei-e judicii.

The plaintiff cites Edwards v. Edwards, 29 Annual, 597, where the judgment was attacked for nullity within the year. Of course, it could not be pleaded in bar of the action of nullity during the period when the Code expressly subjects it to such attack. We have already stated that this suit was instituted after a year had elapsed from the date of the judgment.

Judgment affirmed.

Rehearing refused.


text:
    No. 7186.
    W. T. Hardie vs. Turner, Wilson & Co.
    It is not necessary to record a judgment-of separation of property obtained by a wife against her husband. If otherwise in accordance with law it is valid without being recorded.
    Where no decree for money is involved in the judgment of separation of property obtained by a wifo, the issuance of afi. fa. under such a judgment is not practicable, and therefore not necessary to perfect the judgment. And when there is no property of the husband transferred to her for the payment of her judgment, no notarial act is necessary or proper, in order to complete the judgment.
    Where a party in one suit avers the validity of a judgment of separation of property procured by a wife, in order to obtain a judgment against her, he. is thereby estopped from afterward contesting the validity of the separation in order to execute the judgment thus obtained.
    Creditors of a wife have no right to attack, on the ground of simulation, a conveyance made by the husband to a third person.
    APPEAL from the Fourth District Court, parish of Orleans. Houston, J.

      H. K. Washington for defendants and appellees.

      Singleton & Browne for plaintiff and intervenor appellants.
   The opinion of the court was delivered by

Manning, C. J.

In January 1847, Leonora C. Frierson obtained judgment of separation of property, and a dissolution of the community of Acquets, against her husband William J. Frierson, which judgment was Advertised in the following month'. Her petition did not contain any money demand, but there was an allegation of the ownership of certain slaves, and of her desire to resume the administration of her property, and the fear of its loss through the disorder of her husband’s affairs.

In April 1852, Mrs. Frierson executed, with McMain and another, a note upon which suit was instituted, and judgment was finally rendered Against her therein in 1877. Turner v. McMain, 29 Annual, 298.

In June 1868, W. J. Frierson had acquired by purchase a lot and buildings thereon, in this City, and in March 1873 sold it to the plaintiff, Hardie. The defendants issued execution on their judgment against Mrs. Frierson, and caused to be seized all of her right and interest in "the lot and buildings above mentioned, ‘being the undivided half interest therein, arising from the legal community of acquets and gains existing between her and her late husband, at the time of his death.’ The sheriff advertised the sale on April 20, 1877, and Hardie injoined. That is the present suit.

The seizure was of course made on the assumption that the community of acquets between Mr. Frierson and his wife had never been dissolved. The defendants maintain that the judgment of separation was null ab origine, because of the radical defects of want of publication, want of recording, and non execution.

The first ground falls before the proof of due and immediate publication, and the second is untenable in the-absence of any law requiring the judgment to be recorded to give it validity. If a judgment of the wife contain a recognition of a mortgage or privilege upon the property of the husband, it must be recorded to preserve the privilege and make known the mortgage, but for that purpose only. If, as in this case, there was no mortgage claimed or established, the recording of the judgment was not needed, for recording such judgment has not been made a requisite to its validity, as has been its publication and execution, when the latter requres legal process or a notarial act. And the non execution by such process or Act is not a defect in Mrs. Frierson’s proceedings, because a writ of fieri facias could not issue on such a judgment as she obtained, nor was a notarial Act necessary or proper, when there was no property of the husband transferred to her for the payment of her judgment, but a decree for her to resume the administration of her own. Jones v. Morgan, 6 Annual, 630.

There can be no pretence or suspicion that the judgment of separation was sought with the view of affecting the defendant’s rights. The note was executed b^’ Mrs. Frierson five years after the decree of separation, and they obtain ed j udgment upon it thirty years after its execution.

The validity of her judgment of separation was attacked several' years ago, and upon the ground that it had never been executed, and was therefore null; and that it was obtained by collusion, and was simulated. In Oser v. Frierson, where these objections were made, this court said, Mrs. Frierson obtained a judgment against her husband, setting aside the slaves as her property, and dissolving the community. The judgment thus rendered was published in accordance with the Code. Nothing more was required to give it full force and effect. Opinion Book, No. 29, p. 56.

Independent of all this, there is another fatal objection to the right of Turner, Wilson & Co. to make the seizure of this property. In their suit against Mrs. Frierson on her note, they alleged that, though a married woman, she was judicially separated in property from her husband, and based their right to a judgment against her on the fact of such judicial decree having been rendered, for there was no allegation or pretence that she was a public merchant, or that she was bound in any other way by her execution of the note than that, being separated ini property, she had a rignt to contract the obligation sued on. They cannot aver the legality and completeness of the separation in order to obtain a judgment against her, and afterwards contest the validity, of that separation in order to execute the judgment thus obtained..

Mrs. Hardie intervened in the suit. She is the daughter of Mr. and Mrs. Frierson, and the conveyance of, Mr. Frierson to his son-in-law, the plaintiff, is attacked as a simulation. Suppose it is, a creditor of Mr. Frierson might attack it, but the defendants are not his creditors, and the proof of simulation of the conveyance would only subject the property conveyed to the claims of his creditors, and could not restore it to a community, which these defendants have in judicial proceedings alleged not to have existed since 1847. Therefore

It is ordered and decreed that the judgment of the lower court is avoided and reversed, and that the plaintiff now have judgment, maintaining and perpetuating his injunction, and for costs of both courts.


text:
    No. 7071.
    Paul Bellocq vs. City of New Orleans.
    The State taxes, and the taxes due tho city of New Orleans on real estate within the city limits, operate as concurrent privileges on the property, and hence no adjudication of the property under a sale for the compulsory payment of State taxes will extinguish the liens of the city for its taxes, when tho price of the adjudication is not sufficient, on a proportional distribution between the city and State, to pay to the State the full amount of its taxes.
    A sale of property to pay State taxes will not cancel or release either State or city taxes of a subsequent year.
    Where writs of ft. fa. for tho collection of city taxes were issued by the Superior District Court for the parish of Orleans, and not returned before that court was abolished, they did not become extinct thereby. It was not necessary or proper to return such writs, in order to obtain aliases from the Third District Court, to which all the pending eases in the Superior District Court were transferred.
    The i-egistry of the taxes due the city of New Orleans is a seizure of the property • on which the taxes are assessed, and operates as a binding notice to all future sellers and buyers of the property; and such property can only be sold by the State, under a seizure subsequent to the registry of tho city taxes, subject to the city’s lien.
    ^PPEAL from the Third District Court, parish of Orleans. Monroe,

      Lacey & Butler and Chas. Couque for plaintiff and appellee.

      Sam. P. Blanc, Assistant City Attorney, and E. H. Farrar for defendant and appellant.
   The opinion of the court was delivered by

Manning, C. J.

This suit is an injunction on the part of the plaintiff to restrain the defendant and the sheriff from selling two improved lots in this City¡ under two writs of fieri facias issuing out of the Superior District court, for the payment of the City taxes of the years 1874 and 1875, for which judgment had been rendered against widow J. B. Bellocq and the property.

The widow Bellocq was the owner of the lots, and had failed to pay the State taxes of the years 1871,1872,1873 and 1874. The State Tax Collector sold the property on September 21,1875, for those taxes, and George E. Norcróss bought, and received a title from the Collector on September 23. - Six months precisely from that day, viz on March 23, 1876, the Auditor made the confirmatory title for the State. On the 15th. of the following month, Norcross sold to the plaintiff, who is the son of the original owner.

The State tax of any given year is based upon the assessment of that year, but is not payable until the following year, and is known by the designation of the year of assessment, while the City tax is known by the year in which it is payable. The State taxes of 1871 — 1874 inclusive, and the City taxes of 1874 and 1875, were due and payable when the sale took place, and were the last and only taxes due at that time.

The counsel for .the City contends that a seizure and sale for the State taxes of any given year does not destroy the lien, or release the property from the lien, created in behalf of the City for its taxes of the same year, or for any taxes subsequent to that year, for the taxes of which the property was sold. Thus, the last State tax due at the time of the sale being that of 1874, the sale could not destroy the lien of the City taxes of 1874 and 1875. On the other hand the plaintiff claims that, deriving title from a purchase at a sale for State taxes which were due at the time of the sale, and the bid having been for an amount sufficient to cover those taxes, and all penalties, charges, and costs, he is protected by such conveyance, which by express enactment vests in him a full and complete title to the property, free Erom all incumbrances whatsoever.

This question is of great importance in every point of view; If it be true that the State tax primes every other lien to such an extent that a sale under its lien extinguishes all others, then the power of .taxation delegated by the State to cities and parishes might become, if not inoperative, at least unproductive of benefit.- A sale for the compulsory payment of the State taxes would deprive the cities and parishes of the power to compulsorily collect theirs. In the case of the parishes, the General Assembly has excluded such effect by requiring that when in sales for taxes, there shall not be bid a sum sufficient to cover both State and parish taxes, and all penalties and costs, there shall be no adjudication. Perhaps the plaintiff would argue that the absence of a like provision for the City taxes indicates the intention of the legislature not to extend to her the same security. . But we cannot assume that’ nor is it a reasonable inference. When the legislature gave to the City the power to tax, and confided to her officers the movement of the machinery necessary to realize the tax, it cannot have been intended to invent a clog which at any moment might peremptorily stop its working. This would be offering a stone when one asked for bread. Taxes are the pabulum of government. Without that food, the political body languishes and dies. The State did not create the City, and indue it with corporate life, and in the same instant benumb and palsy those functions, without the exercise of which life is soon extinct.

We think the State and City taxes are concurrent privileges, and we assimilate the rights of both to those of concurrent mortgage creditors. The distribution of the proceeds of sale, made for the satisfaction of the tax liens, is in principle pro rata. But under express law, no adjudication can be made to any individual of property, sold for State taxes, if the bid is insufficient to pay all the taxes and penalties due the State. The State may buy if the bid is insufficient, but none other. Sess. Acts 1873, p 101. Now since the City tax is a concurrent lien with the State tax, a sum must be bid which on proportional distribution between the City and State, will assure to the latter the full amount of its taxes, and as in this case, the bid was for less, the adj udication has not extinguished the liens of the City for its taxes.

It must not be forgotten that the City taxes are for the years 1874 and 1875, the latter being payable in that year, and being due when the State tax sale took place, while the last State tax due was that of 1874. Certainly a sale for State taxes of a given year will not cancel and release either State or City taxes of a subsequent year. Anderson v. Rider, 46 Cal. 134. Cowell v. Washburn, 22 Cal. 519. Burrough's Taxation, 274. Osterburg v. Union Trust Co. 3 Otto, 424.

The two writs of fieri, facias, issued for the collection of the City taxes, are dated November 28,1874 and July 12,1875. Those writs are not returnable within a given time, but only when satisfied. They issued from the Superior District court, which was then in existence. The seizure is made by recording the same in the mortgage office. The first was recorded February 2,1875, and the last on July 26,1875. The sale under them was advertised to take place August 14, 1877. At that time the Superior District court was abolished, and the plaintiff includes •among the grounds of his injunction, the extinction of the writs by the •extinction of the court that issued them.

The act abolishing the Superior District court ordered the records thereof to be transferred to the Third Court, and made this latter court, quoad the pending suits, the successor of the Superior court, and vested it with jurisdiction in the premises. Sess. Acts 1877, p. 86. It was not necessary or proper to return these writs in order to obtain aliases from the Third court. When they issued, the Superior court was in being, and had authority to issue them, and their vitality continued, notwithstanding the extinction of the Superior court, because its existence quoad these writs was prolonged as it were, and merged in the Third court.

The seizure of the State tax collector was made by registry in August 18 '5, and his sale, under which the plaintiff’s vendor bought, was made on 21st. of the following month. The certificate of the recorder of mortgages shews the registry of the City taxes prior to that time, viz the latest on July 26,1875, and as the registry is a seizure, by the law for the collection of the City taxes, both the purchaser and the seller (the State tax collector) knew the liens of the City, and their amount and nature, and must be bound by such knowledge, conveyed in the manner the law provides. The moment a seizure of the property was regularly made, the possession of the owner ceased, and the thing seized was placed in the custody of the sheriff. Prevot v. Hennen, 5 Mart. 269. Lacy v. Buhler, 8 Mart. N. S. 662. Wafer v. Pratt, 1 Rob. 41. Winn v. Elgee, 6 Rob. 100. The property was therefore in the custody of the sheriff, under the seizure for the City taxes, prior to and when the seizure for the State taxes was made, and the City has a right to enforce its lien, notwithstanding the sale for the State taxes. We do not understand this to be at variance with, or to be a relaxation of the principle maintained in Lannes v. Workingmen’s Bank, 29 Annual, 112 and Jurey v. Allison 30 Annual, 1234.

Simulation is pleaded by the defendant to the tax collector’s sale and title. The widow Bellocq bought this property from the succession of her husband, the plaintiff’s father. She had no means with which to purchase except her interest in the community. No settlement between herself and the heirs has been had. The plaintiff is one of those heirs. The former owner has continued to occupy the property, at a rental it is said of sixty dollars a month. When asked, what induced him to purchase the property, the plaintiff answered, “ well, it was a good affair.” It is not necessary to say whether or no this is conclusive evidence of the simulation charged, since we hold, that if it be not, the City was lawfully proceeding to enforce her lien for the collection of her taxes, and that the injunction of the present plaintiff was wrongfully issued. Therefore

It is ordered and decreed that the judgment of the lower courtis avoided and reversed, and that there be now judgment dissolving the injunction, and that the defendant have judgment against the plaintiff for her costs iu the lower court, and for those of the appeal.

Rehearing refused.