author: Bermudez, 0. J.

text:
    No. 8279.
    Oscar J. Forstall vs. The Consolidated Association of the Planters of Louisiana.
    The Consolidated Association of the Planters of Louisiana is liable, as well as the State of Louisiana, on the bonds issued by the latter to the order of, and endorsed by the former, under the terms of Act No. 19 of 1828.
    The pledge provided for by See. 6 of said Aot, of all the mortgage obligations furnished to said bank, is in favor of tho bondholders and is valid.
    They are entitled to iutorest on.their unpaid intorest coupons from the time of default.
    Where payment of a debt is secured by a pledge, prescription does not run as long as the pledge exists and the debt remains unpaid.
    Where by legislation, the time for paying matured obligations is extended, without tho consent of the holders thereof, the aot affects the value of the claim, impairs the obligation of a contract, and is a nullity.
    Where funds, which, should be applied to tho payment of the matured debts of an insolvent corporation in liquidation, are directed by statute to be invested in the purchase of State bonds, without the consent of the creditors, the act is unconstitutional and void, as impairing tho obligation of a contract.
    Where, in the charter of a corporation, or by subsoquent legislation forming part of a contract with bondholders, the mode of liquidation of the concern is not provided for, itis lawful for the Legislature to remody tho omission by providing for an adequate mode of liquidation.
    APPEAL from tlie Civil Distriot Court for the Parish of Orleans. Monroe, J.

      Henry Denis, for Plaintiff and Appellee:
    Third persons appealing must allege and prove m the lower court a pecuniary interest of an appealable amount. 23 An. 768 ; 21 An. 743; 23 An. 581; 24 An. 426.
    Prescription is suspended during the judicial administration or liquidation of an estate or insolvent. 33 An. 308; 32 An. 337; 31 An. 713; 30 An. 838; 12 An. 210 ; 3 An.-529; 1 An. 365; 11 Kob. 346.
    The very statutes which created the Consolidated Association of the Planters of Louisiana, made and held her liable on the bonds of the State endorsed by her.
    The mortgages given by the stockholders of the bank,.are intended by tho law to secure the bondholders and not the State of Louisiana.
    The surety subrogated to tho rights of a mortgage creditor, who has paid only a portion of the debt, cannot compete with said mortgage creditor in theproceeds of the mortgaged property, until the latter is paid in full. C. C. Art. 2163.
    Act No 20 of the Legislature of 1878, providing for the further and indefinite liquidation of the Consolidated Association, without the consent of the bondholders, is unconstitutional, because it impairs the obligations of the latter’s contract.
    Interest on Interest Coupons is not compound interest and is legal. 8 Otto,473; 13 Otto, 686; 28 An. 560; 33 An. 39L, 668 and 672
    The laws for the liquidation of the Consolidated Association impair the contract rights of the bondholders and afford neither adequate nor any remedy at all, and are unconstitutional. Wherefore, a receiver should be appointed by the Court. 5 An. 740.

      John MeHnery, for Defendant and Appellant;

      J. O. JEgan, Attorney General, for State, Intervenor, Co-Appellant:
    1. The endorsement of the State bonds by the president and cashier of the Consolidated Association was simply the aot of an agent by which the title to the bonds was transferred and the aot of transfer, under authority of Sootion 5 of 1828, created no liability on the part of the bank.

      2. By the terms of Section 5 of 1828, the power of the president and secretary was limited to transferring the ownership of the bonds, and conferred no power to create any liability on the part of the bank.
    3. The powers of agents wore enumerated, they possessed no other; and the transfer amounted to an endorsement without recourse.
    4. The bank incurred the obligation to reimburse the State the principal and interest of the bonds issued to the bank at the moment the State issued those bonds.
    5. Pledge is an accessory obligatiou to secure a principal obligation.
    6. The principal obligation was that of the bank to the State, and that obligation was to reimbuivse the State for the amount of the bonds issued, principal and interest.
    7. The pledge was given by Section 6 of Act No. 19 of 1823 to the State, to secure this promise on the part of the bank.
    8. The Act of the Legislature of 1878, providing for the liquidation of the bank is constitutional.
    1. The State of Louisiana is the real party in interest in this case.
    2. She is the holder of the assets of the Consolidated A ssooiation of the Planters of Louisiana, and claims a pledge thereon as a security for the issuance of §2,500,000 of her bonds under a contract contained in Sec. 6 of Act No 19 of 1828. Act 20 of 1878.
    3. The bonds issued by the State to the Consolidated Association are principal obligations of the State. LoSassier & Binder vs. Board of Liquidation, 30 An. 611; Forstall & Sons vs. Board of Liquidation, 30 An. 1153.
    4. As a security to the State for the payment of these bonds the hank pledged the mortgage stock notes held by it; slie was also to have one million of stock in the bank as a bonus.
    5. Act Ño. 19 of 1823 is a contract between the State and the bank, as well as an act embracing the law applicable to them. It contains reciprocal agreements between the State and.
    6. But it does not contain any contract between other parties.
    7. There is no allegation or proof found in the record claiming of showing that the hank pledged her assets to the bondholders under the terms of any contract entered into between the transferror and transferree of the bonds.
    8. Act 19 of 1828, created a pledge on February 19, 1828, loug anterior to the purchase of any bonds by the bondholders; it enacts that: inasmuch as said Consolidated Association is hound for the reimbursement of said bonds subscribed bytbe State at their respective instalments. The pledge was of course in favor of the State, one of the contracting parties, and not in favor of bondholders who had no existence. To support a pledge there must exist aprincipal obligation which it is to secure. The pledge existed in favor of the State the moment that her bonds were issued to the bank.
    9. "What contract would be entered into between the bank and the purchaser of the bonds was a matter for future consideration.
    10. Corporations act through agents. Sec. 5 of Act No. 19 of 1823 confers ceitain powers on the president and cashier of the Consolidated Association. They were authorized to transfer State bonds issued to the hank by endorsement making them payable to any person or bearer. Their powers extended no further. 15 H. 317; 2 Otto, 300.
    11. They could not bind the bank as a security or guarantor. And the contract on the reverse of the bonds herein sued upon neither directly or indirectly purports to give a pledge to secure the payment thereof, and does not therefore sustain the claim of plaintiff.
    12. The bonds of the State needed no guarantee; hut the Legislature, when it authorized the issuance of State bonds to the bank, required more than a promise to pay; it required the hank to pledge what it deemed necessary to insure the contract of the hank with the State; and that is thocontraot of pledge contained ia Sec. 6 of Act No. 19 of 1828.
    13. Act No. 20 of 1878 declares that the State had taken possession of her pledge; the object of this suit is to force the State to relinquish her possession, and for the plaintiff to he put into possession thereof as owner. This is undoubtedly a suit against the State. The State cannot he sued without her consent; she has not given her consent. The District Court was therefore without jurisdiction. Branch vs- Macon and Brunswick B. B. Co , 2 "Woods, 389; Cunningham vs. Macon and Brunswick B. B. Co., 3 Woods, 426.
   The opinion of the Court was delivered by

Bermudez, 0. J.

This is an action to fix a liability on the defendant, with privilege on certain of its assets, represented asresultingfrom the ownership by the plaintiff, of certain bonds of the State and equivalents therefor, due and guaranteed by the corporation, by a, pledge of stock mortgage notes held by the Association. The plaintiff further claims that an Act of the Legislature of 1878, which extends the time of payment of those bonds or annexes, and which provides for the liquidation of the affairs of the Association in a particular mode, and which diverts the application of its funds to the purchase of State Consolidated Bonds, impairs the obligations of the contract by which the “ reimbursement ” of his claim is secured, and is thus unconstitutional and void. The prayer is: that there be judgment for the amounts claimed, with interest from the date of failure of payment, both on the amount of the bonds and annexes, and on the dividend coupons ; that the Act of 1878be annulled; that the liquidation of the concern be speedily proceeded with ; that receivers or commissioners be appointed, and eventually, that the directors of said Association be commanded to proceed to the seizure and sale of all the property mortgaged by the stockholders, and to render accounts of their administration ; finally, that an injunction issue to prevent the investment of the assets of the Association in Consolidated State Bonds.

The defendant pleaded the general issue and prescription. The State intervened, joining in the defense.

From ajudgmentin favor of plaintiff, except as to the interest claimed on the dividend coupons and the entire annulment of the Act of 1878, the defendant and the State have appealed. The plaintiff and appellee prays here for an amendment, of the judgment, by the allowance of the interest claimed on the coupons, and the appointment of one or more receivers, as asked in the original and supplemental petitions.

I.

By its charter, (No. 96 of 1827) the corporation was authorized to borrow $2,000,000 on its bonds, payment of which was to be guaranteed by the mortgage obligations furnished by each stockholder, in order to secure the payment of his subscription.

In general, money corporations derive the capital with which they transact business from the subscriptions of stockholders, paid either entirely in cash, or partly in cash and partly by notes. In this instance, there was no cash payment at all. Each stockholder subscribed for a number of shares of $500 each, and gave amortgage to secure the payment of such shares; the obligations thus incurred, with the security thereof, to remain in possession of the corporation’s representatives, wherewith to procure money and to operate in banking' speculations. That is the mode usually followed by property banks to raise a capital.

The scheme authorized by the Act of 1827 proving' unsuccessful, the Legislature of 1828 passed an Act, (No. 19, p. 130) whereby the sum authorized to be borrowed was raised by half a million, and the amount to be subscribed for was increased by a million, the surplus to be secured likewise, by mortgage, as- previously required. With a view to facilitate the corporation in its • dealings, and in consideration of a bonus of one million of dollars of stock, conceded under certain terms and conditions, the State consented to issue her own bonds for' $2,500,000, to be disposed of by the endorsement of the bank, pledgingher faith to the payment thereof, but requiring the bank, upon whom the debt was fastened, to secure the payment thereof by a pledge, not only of all the hypothecary obligations of her stockholders, but also of those of other “ individuals” dealing with her, the same to remain in the officers of the bank, to guarantee such payment.

There can be no question that, by the legislation of that year and of the following years, the debt evidenced by those bonds and by the annexes issued subsequently to cantle the principal obligation into instalments and make them payable at stated periods, — the debt was not only the debt of the State, but likewise that of the corporation, both the State and the corporation having received a consideration for the issuance of those evidences of indebtedness and unconditional obligations to pay money.

An attentive examination of the other Acts of 1835, p. 123, Secs. 5 and 6 ; of 1842, No. 98; of 1843, No. 92; of 1847, No. 100; of 1853, No. 113; of 1866, No. 38, and even the Act of 1878, No. 20, whatever that last Act be, coupled with the glaring fact that, from first to last, payment was effected on the debt by the bank, proves, beyond the possibility of a doubt, that both the State and the bank considered that the debt was their own, one for which they were both bound primarily as principals, and strange to note, almost a paradox, also as sureties ; the one. for the other, the one pledging negotiable securities, the other its faith as a sovereign, both in favor of bondholders.

The validity and effect of this contract, which is a triangular or tripartite contract, cannot be tested or regulated by the general law in all respects.

This is not the case of a contract covered by a law, or of a law covering a contract; it is the case of a law which is a contract, and a contract which is a law, presenting a physiognomy entirely sui generis.

There can be no earthly doubt that the security or guarantee given by Section six of the Act of 1828, for the 11 reimbursement” of the borrowed capital, was given primarily in favor of the bondholders, and secondarily in favor of the State. That Section provides that the mortgage obligations subscribed by the stockholders and all other mortgage obligations subscribed by ‘'individuals,” in favor of the Association, shall be deposited in the offices of the institution for safe keeping, as a special guarantee and security for the reimbursement” of the capital of $2,500,000, and the interest thereof, inasmuch as the said Consolidated Association is bound for the reimbursement of said bonds subscribed by the State, at their respective instalments, (maturities) and to pay the semi-CMiimal interest, until the ivhole amount of the principal is reimbursed. 7 A. 319 ; 2 A. 416, 776, 835.

The significant word reimbursement,” wisely used more than once, suggests that of a return of money, of the putting back of money in the purse of one who had taken it out of it; in otherwise, disbursed it. No reimbursement can take place when there has been no disbursement. Who was it that made the disbursement? Evidently not the State, who had lent, not money, but only her credit; but those who took their money from their purses and invested it in the purchase of the bonds, on the faith of the State.and .of the securities of the bank, legally pledged. It is to those bondholders, first, that a “ reimbursement,” or payment, was contemplated. Now it might have well happened that the State might have honored her obligations, at maturity, in case of a failure by the bank to have done so. Then the State would have paid her bonds; and in the absence of a stipulation in her favor, she would, by such payment, have been legally subrogated to the rights of the bondholder, without .a right of competition, however, with other bondholders, if any. R. C. C. 2162; C. N. 1252; Marcadé 4, p. 547; Duranton 12, 289; 2 R. 244; 20 A. 359; 30 A. 618; 31 A. 859; 33 A. 591.

The dominant idea was that the bank was liable and should pay, and should provide, for payment, by a security, and that the State would be also primarily bound.

In such a case of payment by the State, the guarantee furnished to secure satisfaction of the obligation, by reimbursement, would have enured in her favor, not only in her rights, as subrogated ,<nib modo, but also because of a like stipulation in her favor.

We do not attach any importance either way to the dictum in 30 A. 1151, apparently questioning the liability of the bank for the bonds, by reason merely of the endorsement. No question at issue justified it. •A reference to the authorities cited does not show it to be founded.

The case in 15 Howard, 317, is rather indicative of a liability by endorsement, where a liability for the debt, evidenced by the instrument, was imposed by the charter, in case of negotiation. In Lis able opinion, the District Judge has well analyzed and criticised the second ease, and shown the existing disparity, its consequent inapplicability, for a similar reason to that now before this Court.

It is patent that the obligations were issued by the State for the use of the bank; that, under contract and for consideration received, both are liable. The liability of the State was judicially recognized. 30 A. 617, 1153.

She was compelled to fund the same. It is clear that the debt was a debt contracted for and by, at the same time, the corporation, and that the payment of it was secured by her, as already stated, and that it has several times obtained respites and indulgencies, and has, by the course pursued in the transaction of her business, particularly in relation to those bonds and annexes, recognized and acknpwledged her responsibility therefor.

It is more than manifest that the obligations sued on were honored neither by the Association nor by the bank and, therefore, that the bondr holders are creditors of both, with a right to hold them, under the contract, liable solidarily.

It is undeniable that if the State had paid the bonds and annexes, in keeping with the pledged faith, she could have brought an action against the defendant and revendicated the privilege and security, to which the jdaintiff says that he is entitled, and which the defendant has judicially admitted, in these proceedings, having given to the State.

What rights the State, in that hypothesis, could have asserted and vindicated and cannot assert and vindicate, owing to non-payment, the bondholders are entitled, under the law, to allege and enforce.

It is elementary that a creditor has the right to aver and cause to be satisfied, all the rights which his debtor could, if acting, propound and have recognized and executed.

Otherwise, the creditor would be at the mercy of a defaulting,and obstinate debtor, who might, by a refusal to join, or a neglect to assert rights involving his ownership and title to property and its possession, prevent the enforcement of just claims. Cod. lib. 4, tit. 15, arg. ex. leg. 66; R. C. C. 1990, etseq.; C. N. 1166; 2 A. 782, 843; 30 A. 727; 33 A. 898, 906; 4 Marc. 433; Toull. t. 6, n. 370, et seq.; t. 7, n. 560, et seq.; Duranton, t. 10, 552; Grenier Hyp. t. 1, pp. 80, 84, 517, 554; Mourlon, vol. 2, p. 614, et seq.; J. P. 1853, vol. 2, p. 294.

It is clear, however, in this case, that the clause of “ reimbursement ” was primarily stipulated in favor of the bondholders, and that liability of the bank derives not only from the endorsement, but also from the charter and from Statutes subsequently passed, proclaiming her responsibility.

In 30 A. 616, the Court declared that her liability had been added to that of the State.

The declaration in the endorsement was a superfluity for the incurring of the obligation, which already existed and was not thereby absolutely created. The indorsement was, however, a legal formality required for the negotiability of the obligations or bonds.

II.

It is clear that, as the payment or reimbursement of those bonds and annexes was ah initio, and has uninterruptedly continued to be, secured by the pledge of the hypothecary obligations of the stockholders and of other “individuals,” subscribed in favor of rhe bank, the subsistence-of the pledge is a constant recognition of the debt, which, it is not claimed, has been extinguished, otherwise than by prescription.

It is no objection that the object or thing pledged was not delivered to the creditor. Even in the absence of a law contract, it is lawful to stipulate that the pledge may remain in trust, in the hands of a third person, even in those of the debtor, provided it be held precariously. But this objection is untenable in a case like the present one, in which the State, the law-making power, who has the right to derogate from its ordinary legislation, has provided expressly and unequivocally that, it should bo done.

As long as the debt thus secured remains unpaid, and the pledge continues in existence, whatever be the time elapsed since maturity, the defense of prescription cannot be raised. V. 32 A. 1250; 33 A. 1444, and authorities cited in each case; 96 U. S. S. C. p. 476; Dig. lxiii, t. vii, 1. 35, 37 ; C. N. 2076.

III.

The complaint of the plaintiff against the Act of 1878, is well founded, as far as that Act assumes to postpone the payment of the outstanding bonds, without the consent of the holders thereof.

The plaintiff distinctly declares that he has not acquiesced in, and protests against such extension. His declaration is not disproved. The respite sought to be granted by the Act impairs the obligation of the contract, evidenced by thelegislation which the plaintiff invokes, and upon which he plants himself. Anterior indulgences were properly procured with the formal assent of the creditors. But the plaintiff has no right to complain of the tedious mode of the liquidation provided by the legislature, in the absence of any other mode previously stipulated, and which could have been invoked as an integral part of the contract. 7 A. 319.

' The remedy prescribed for the evil appears to be adequate and not to be injurious. It is such that the plaintiff and all others similarly situated must endure, even if obnoxious or unsatisfactory.

1 There can be no doubt that the Act of 1878, in so far as it directs the investment of the funds of the Association in the Consolidated Bonds of the State, is an unauthorized diversion of the assets of an insolvent concern, in liquidation, for the acquisition of property, for speculative purposes, when the same should primarily be'applied to the extinction of its ancient, legitimate, legal outstanding indebtedness, and that such diversion impairs the obligation of the contract of the plaintiff and all other creditors in whose favor the property of the Association must stand and bo dealt with as a common pledge, which it is, unquestionably. R. C. C. 1968, 3183; 12 Cal. 300; 7 Cal. 579; 31 Penn. 175, 185; 10 Cal. 563, 584; 19 Cal. 11; 10 Fla. 112; 2 Woods, 48, 108, 128; 2 Black. 448; 6 How. 301; 4 Litt. 47; 2 How. 608; 3 Wash. 313; 11 Mo. 744; 1 Mo. 164; 6 Otto. 448, 598; Southern Bank vs. Pilsbury, lately decided by U. S. S. C., not yet reported.

IV.

The plaintiff is clearly entitled to the interest claimed on the overdue coupons, and it should have been allowed him. 8 Otto, 473; 13 Otto, 683; 28 A. 560; 33 A. 391, 668, 672.

It is, therefore, ordered and decreed, that, in so far as it refused the interest on the coupons, the judgment appealed from he reversed, and that it he now amended by allowing- said interest. It is further ordered and decreed, that thus amended it be affirmed, with costs.

Mr. Justice Fenner recuses himself, on the ground of interest.

Levy, J., absent.


source: Caselaw Access Project

author: Pochií, J.

license: Public Domain

text:
    No. 7624.
    Mrs. Noemie Peniston vs. Chicago, St. Louis & New Orleans Railroad Co.
    Railway companies carrying passengers over long journeys, are bound to provide easy modes and to allow a reasonable time to their passengers to obtain food and necessary refreshments.
    They are bound to furnish safe and proper means of ing >s and egress to and from trains to the eating stations, whether said eating houses be under the control of the railroad or a third person.
    This obligation includes the duty of providing sufficient lights for the safety of their passengers going to or coming from meals had at night, and giving them correct information as to jthe exact location of their respective trains, when trains have been moved during the absence of the passengers at their meals.
    Passengers receiving injuiies for want of sufficient light and correct information of the whereabouts of their train on returning from the eating station, are entitled to recover damages against the company.
    A PPEAL from the Fifth District Court for the Parish of Orleans. Sogers, J.

      Hornor & Benedict, for Plaintiff and Appellee:
    1. Railroad companies, ae common Cartiers, must provide secure and sufficient platforms.
    2. Depots, stations and platfoims shall be sufficiently lighted.
    3. Employes of such companies must be provided to warn passengers of danger.
    4. Railing in any of the above stated precautions and safeguards for passengers, the company is guilty of negligence, and liable in damages.

      L. 23. Bimonds, for Defendant and Appellant:
    1. Plaintiff was not injured on or near the platform of defendant, but at that of the hotel, for which defendant is not responsible. Defendant’s depot and platform were on the other side of the track.
    2. The injury is not shown to have arisen from any faulty construction of the platform; but from plaintiff’s own imprudence and negligence in unnecessarily walking off in the dark.
    3. There was no fault on the part of defendant, in the management of the train or otherwise On the contrary, it was managed to the greatest real convenience of passengers.
    4. Even if the alleged fault or negligence attributed to defendant were really such, plaintiff would not have been injured thereby, hut for her contributory negligence and fault.
    5. Notwithstanding fault on the part of defendant, plaintiff cannot recover if her own fault • or negligence contributed to the accident.
   The opinion of tlie Court was delivered "by

Pochií, J.

Plaintiff, a passenger on a train of tlie defendant from Chicago to New Orleans, was injured while walking from an eating station to her train, on the defendant’s road, and has recovered, in this suit, a verdict and judgment for damages in the sum of six thousand dollars.

The evidence is decidedly conflicting, hut a careful reading of tlie record has satisfied ns that the following facts are established:

On the 31st of January, 1878, while plaintiff, accompanied by her daughter and her son-in-law, were phssengeís^ou a train of the defendant, from Chicago to New Orleans, tli'ey came out of their car at about 8 o’clock at night, at Hammond Station, then a regular supper station on said road, according to its schedule, for tlie purpose of taking necessary refreshments.

The building in which meals are served is situated at a considerable distance from the railroad, and is reache,d by passengers wlio alight on the main track of the road, by crossing over a side track, and i>assing on a,large platform, and thence through a narrower and covered platform which leads into tlie hotel.

. On the arrival of the train, a torchlight burning on an elevated platform affords ample light to guide the steps of passengers to the covered platform where two or three lamps light up the way to the interior of the building.

Aftef supper, and on returning to their train, plaintiff and her companions discovered that the torchlight had ceased to burn, and that there was no other light or signals to guide their steps securely through the large platform in front of the hotel to their train, and that there was no officer or employee of the Company charged with the duty of pointing out to passengers the way from such platform to their train'. Their train, which they had left on the main track, had been removed therefrom and placed on the side track lying next to the hotel, and another train, since arrived, was then occupying the position on the main track, where they had left their train on alighting for supper. They had received no information, officially or otherwise, of those changes, operated while they were in the supper room.

Finding a train on the side track, and believing that to he a new train, which was standing between them and their train, they concluded to go around said former train, so as to reach theirs, and to do so they followed the platform fronting the hotel, and on which there was no light, and not noticing the termination on said platform on two steps of stairs leading to the main ground, plaintiff, who walked in the lead of her companions, fell to the ground, dislocating her ankle and fracturing her leg in two places, from which she suffered great pain, was confined to her room for four months, was compelled to walk on crutches for eight months, and from which injuries she has not yet recovered the free use of her limb.

Defending under a general denial, the corporation urges its want of responsibility, on the grounds :

1. That the hotel and platform are not the property of the Company, but of another person, for whom defendant is in no manner responsible.

2. That the accident occurred through plaintiff’s own fault, who should not have attempted to. walk around the train on the side track, which was her train, the approach of which, from the eating station, was made easy and safe by lights burning in the covered platform and in a lunch stand situated at the rear end of said gangway ; and who should have made inquiries concerning her train.

These propositions involve the discussion of the degree of care, attention and protection which railroad companies, as common canters, owe to their passengers.

In conveying passengers through long journeys, such as from Chicago to New Orleans, at great speed and with rapidity, a common carrier is required by humanity, as well as bylaw, to provide its passengers with easy modes and to allow them reasonable time for the purpose of sustaining life, by means of food and necessary refreshments. Hence it is, that on all such roads, arrangements are made to enable passengers to obtain at least two meals a day, and that announcement is made in every passenger train by employees of the road of the approach of’a train to a station where, under arrangements with the company, meals are prepared for the convenience of its passengers.

It. is well established in jurisprudence that railway companies are under the legal obligation to furnish safe and proper means of ingress and egress to and from trains, platforms, station approaches, etc., and it is well settled that any person injured, without fault on his part, by any dereliction of its duty in the premises by a railway company, can recover damages against the corporation for injuries thus received. Cooley on Torts, pp. 605, 606, 642; Addison on Torts, Sec. 245; Shearman & Redfield, p. 327, Sec. 275.

This principle has been applied in a case where a passenger, an old lady, was put out at her destination, at a station where there was no light to guide her steps, and no employee of the company to show her the way out of the station grounds, and was injured in trying to go from the station to a friend’s house, by falling from the platform. 32 Wisconsin, 528, Patten vs. Chicago & Northwestern R. R. Co.

Under the same rule, a railway company was held responsible for injuries received by a passenger in walking from one of its trains to a transfer boat, by falling on a wharf on which there was not sufficient light. 48 Vermont, 101, Beard vs. Conn. & Pass. Rivers R. R. Co.,

In the enforcement of the same rule, a railway company was mulcted in damages in a case where a lady passenger, alighting from her train at her destination, and finding no safe and convenient platform leading to the highway, attempted to walk across three of the railroad tracks, and falling in a cattle-guard” filled with snow, was run over and killed by another train of the same company. Hun. N. Y. Reports, vol. 13, 589; See also, 56 Maine, 244; 16 Howard, 469.

The obligation of furnishing, by railway companies, safe and easy ingress and egress to and from their platforms, has been extended so as to embrace cases of persons who were not passengers on their roads, but who came on business to their stations, and were injured by means of insufficient or defective platforms, such as a hackxnan who had trxrnsported passengers to a railroad depot. 59 Maine, 183; See also, Jamison vs. San Jose R. R. Co., California, 11 Reporter; Law vs. Grand Trunk R. R. Co., Maine, 12 Reporter, p. 397.

Fully endorsing, and concurring with this jurisprudence, we hold that the defendant Company is legally bound to furnish to its passengers an ea’y and safe mode, of going to and from its trains, and such eating stations as it may have provided for the wants and conveniexxco of its passengers, and that for the purpose of enforcing this obligation, it is immaterial whether the eating station is owned and kept by the Company or by another person, with axi understanding with the Company as to the time of preparing and furnishing the meals.

In our opinion, this obligation imposes upon the railway coxxrpany tlie duty of having ample and sufficient lights, for meals furnished at night, to safely guide their passengers to and from the hotel or eating station, and in case trains are removed from one-track to another during the meal, to inform, by emiiloye.es, the passengers on their egress from the eating or dining room, of the exact location of their respective trains.

We have given due and respectful consideration to the testimony of defendant’s witnesses, who state that the platform was sufficiently lighted for all purposes needed by the passengers. These witnesses are .the train conductor, two or three other railroad employees, the proprietor of the hotel, Ms lessee, who keeps it, and the local postmaster, who are all familiar with the place, are there at the arrival of every train, which they all designate by their numbers, are familiar with the rules of the Company, and know that daring the supper meal the south-hound train is moved to the side track from the main track, which is then occupied by the north-bound train. It stands to reason that -the light which will he sufficient to enable such persons to move about in perfect safety, will not be sufficient to safely guide a stranger, esi>ecially a woman who comes from a distant land, is aroused in her sleeping- car by the sudden and shrill announcement by a brakeman of “ twenty minutes for supper,” and alights from her car in the brilliant torchlight, is shown to the hotel by numerous and zealous runners or servants, in great eagerness to secure her patronage, and who lose sight oflier after receiving her money, and now that the torch is out, she is left alone, unaided and unprotected, to grope her way in darkness to lier train, which is not now where she left it a few minutes before. Hence, it is but fair, reasonable and just, to hold the railway company strictly responsible for the injuries which she received in her attempt to discover the location of the train ou which she was a passenger.

Under the peculiar circumstances of this case, in -which plaintiff is shown to have suffered for months excruciating pains, was forced to great expense in the employment of surgeons and nurses, and is yet in a crippled coudition, we are not prepared to say that the verdict of the jury was excessive.

The District Judge did not err in overruling defendant’s motion for a new trial, urged on the ground of newly discovered evidence, as it appeared that the witness on whose testimony it was based, could only corroborate defendant’s other witnesses.

The judgment of the lower court is, therefore, affirmed with costs.

Rehearing refused..

Levy-, J., absent.


author: Poché, J.

text:
    No. 8616.
    State ex rel. Berthoud, Treasurer, vs. Judge of Twenty-sixth Judicial District Court, Parish of Jefferson, et al.
    Where it appears from the record that the lower court had jurisdiction, ratione mater ¿ce ct personce, of a cause, and the proceedings were regular, a writ of prohibition will not issue from the Supreme Court on an application based on the ground that the lower court had usurped jurisdiction and authority, by rendering a judgment against the law governing the case.
    APPLICATION for writs of Certiorari and Prohibition. Michael Hahn, J., Respondent. '

      J. 1). Coleman, 8. 8. Carlisle, for Relator :
    A State statute, having reference to a political division of the State, and regulating the management thereof, while in full force and effect, cannot be disregarded nor evaded by the courts of the State. State ex rel. Fernandez vs. Houston, Judge, etc., decided May 8th, 1882, not reported. The act of a judge a quo ignoring such a statute or violating the provision thereof, is a usurpation of authority and transgression of jurisdiction. Ib. C. C. Articles 9-13.
    Such a usurpation of authority and transgression of jurisdiction, in unappealable cases, are subject to the supervisory control of the Supreme Court under Article 90 of the Constitution, on application for writs of prohibition and certiorari. State ex rel. Weber vs. E. K. Skinner, Judge, 32 An. p. 1042.
    Acts 29 and 138 of 1856, are in full force and effect. Being particular statutes, they are unaffected by subsequent general statutes, having no specific provisions as to the dual character of the Parish of Jefferson. 10 M. 172; 12 An. 498, 805; 4 R. B. 71; 20 An. 140; 24 An. 156.

      Jos. H. Spearing, A. H. Hillings, for Defourneau, Respondent-:
    1. The supervisory jurisdiction of the Supreme Court will not be exercised to review the correctness, in point of substance, of ajudgment iu an unappealable case, where the proceedings have been regular, the forms of law observed, and the court a qua had jurisdiction ratione et personce. 32 An. 219, 552, 1222 ; 33 An. 16, 256, 379,1202, 1356 j 34 An. Ho 8604»
    2. Act 29 of 1856 is repealed by Sections 2128, 2129 and 3990 of the Bevised Statutes of Louisiana of 1870.
   The opinion of tbe Court was delivered by

Poché, J.

This is an application for writs of certiorari and prohibition, with the object of preventing the execution of a judgment under which a writ of mandamus was issued against Relator, to compel him to pay the sum of one hundred and ninety-nine dollars and seventy-five cents to the holder of certain jury warrants amounting to that sum. •

Relator charges that under the Statutes of 1856 and of 1858, dividing the Parish of Jefferson into two distinct corporations to be known as the Right and Left Banks, and providing for the mode of payment by proportions of parish obligations, by said corporations, the Right Bank of the Parish of Jefferson could be held liable for only 74i per cent, of the warrants, which it was condemned to pay in full by the judgment complained of, and that by disregarding the plain, positive and unambiguous terms of these statutes, the District Judge has usurped jurisdiction and authority not conferred to him by law.

The District Judge, in his answer, justifies by urging in substance that he had jurisdiction over the matter in controversy, ratione materia et persona!, and that the case being unappealable, his judgment cannot be reviewed by us, as the real complaint of Relator is that the judgment was erroneously rendered both on the law and the facts.

It is now too well settled to admit of any possible discussion, that in an application for a prohibition, even under our supervisory jurisdiction, our investigation must be strictly confined to the question of jurisdiction vel non of the lower court.

In the present case it is not contended here, nor was it even intimated below, that the cognizance of the cause did not belong to the lower court, but to another, or that said court was not competent to decide it.

It is conceded that if the mandamus obtained by the holder of the warrants had condemned the Right Bank of Jefferson to pay 74-J per cent, of the amount of said warrants, instead of holding it liable for the full amount, the present Relator would have had no cause of complaint, and the judgment thus rendered would have been legal, final and binding.

Therefore, the complaintis not that the lower court had no jurisdiction, power or authority to try the cause, and to grant a mandamus in the premises ; but that the mandamus was rendered for a rate in excess of the limits prescribed by law.

Thus, it appears clear to us, that the Judge has not usurped' jurisdiction or authority in the cause, not conferred to him by law, but that at most he has rendered a judgment contrary to the law and the evidence in the case, and hence such a judgment could only be reviewed and reversed on appeal.

It may very well be that this judgment is in flagrant violation of law, will work irreparable injury and visit a great hardship on the corporation affected by it, but under our well-defined jurisdiction we are powerless to relieve the Relator, and have no more authority to revise that judgment than any other judgment in an unappealable case, falling, as this case undoubtedly does, within the jurisdiction of the court which rendered the judgment.

In the case of the State ex rel. Fernandez vs. Judge, recently decided by us, the lower court was denied -jurisdiction, and was without authority in law to act or adjudicate at all in the matter involved, and it follows that that decision is no authority in this case, where the statutes charged to have been disregarded by the lower court, are not statutes of jurisdiction, but mere-remedial statutes, and in which-the jurisdiction of the court ratione materia) et personae, is not even questioned or doubted by the Relator himself.

It is, therefore, ordered, that the alternative writs .herein issued be recalled and rescinded; and that the writ of prohibition prayed for be denied, at Relator’s costs.

Levy, J., absent.


author: Todd, J.

text:
    No. 7267.
    Mrs. A. Sinnot vs. A. Rochereau Co.
    Where a party applies foi’ an injunction, accompanying his application with the required bond, or presenting one of the exceptional cases wherein a bond is dispensed with, the judge should, without further requirement, grant or refuse the injunction. There is no authority for the issuance of a rule and taking testimony, touching the merits of the application.
    When, however, such a rule was issued, and upon its trial was discharged, and the case was put at issue by an action and proceeded regularly to the trial, and the demand of plaintiff, on which she based her application for an injunction, was rejected on devolutive appeal taken from such final judgment, this Court, if it finds that this judgment on the merits was correctly rendered, will not remand the case, and grant the preliminary injunction, with the certainty that, after being allowed, it must be dissolved, and particularly where it is shown that the property, the sale of which was sought to be enjoined, had been sold under the execution, and was thus beyond the reach of the remedial process. Judgment affirmed.
    APPEAL from the Sixth District Court for the Parish of Orleans. Bightor, J.
    Plaintiff, in propria persona, Appellant.

      O. JE. Schmidt, for Defendants and Appellees.
   The opinion of the Court was delivered by

Todd, J.


author: Bermudez, C. J.

text:
    No. 7609.
    Jesse K. Bell vs. Chicago, St. Louis & New Orleans Railroad Company.
    This is an hypothecary action to enforce the payment of liquidated debts, alleged to he secured by a judicial mortgage.
    When a railroad corporation is authorized to mortgage, for stated purposes, its road, completed or not, a mortgage given to secure bonds issued for those objects andrecorded, will attach to property subsequently acquired, as effectually as if it bad been described specifically in the act; it being entitled to tbe same effect as if it were a legal or judicial mortgage, when duly recorded.
    The prohibitions against mortgaging future property, found in the Civil Code, relate to ordinary transactions between individuals, and clo not apply to railioad corporations, which are by their charters, and by general' legislation concerning such companies, authorized to mortgage, for construction and ‘repair purposes, their road, completed or not, therefore? their actual and future property.
    In case of failure to pay, the United States Circuit Court in equity has jurisdiction at the instance of creditors, and the property is in custodia legis from the time of the taking of possession by a receiver. At the date of registry of plaintiff s judgments, the real estate of the railroad was in the custody of the Circuit Court, a receiver having been appointed.
    Sucb a proceeding is likened to one in rem, binding on all who are or could have been made parties thereto.
    Judgments recorded after such mortgage has been given and recorded, and after such jurisdiction has vested, do not give rise to a judicial mortgage.
    The property, acquired subsequently to the mortgage, aud sold under the order of the court, (the price having been paid and distributed under its authority, and the proceeds being insufficient to pay the mortgage debt) passes free from all incumbrance apparently resulting from the registry of the judgments, and the plaintiff in the hypothecary action must fail.
    APPEAL from tlie Fourth District Court for the Parish of Orleans. Houston, J.

      Thos. Hunton, T. J. Semmes & Payne, for Plaintiff and Appellant:
    1. An assignee without consideration for the assignment, entitled to sue. 10 Martin, 117; 2 R. S. 296 ; 5 Rob. 295; 4 An. 350; 21 An. 732.
    2. A judicial mortgage may be enforced by seizure and sale, or hypothecary action. 4 La. 239 ; 12 La. 296 ; 8 An. 460 ; 15 An. 564.
    3. The deed of It ust under which defendants resist plaintiff’s claim is invalid, as a Louisiana conveyance or security for debt. 2 An. 330; 7 An. 413; Thibodauxvs. Anderson, recently decided; and because it contravenes Art. 3302, C. C., and Art. 1522, O. C.
    4. The deed is invalid, to cover the property sought to be subjected to plaintiff’s judicial mortgage, because the property embraced in tbe deed, as is alleged, is not described. C. C. 3306 ; 5 An. 123; and because a portion of this property was acquired by defendants after the date of the deed. C. C. 3308; 3 Rob 513; 4 Rob. 231.
    5. The property mentioned in this petition was not embraced in the decree of the Federal Court. Besides, that decree cannot affect plaintiff, who was not a party. Dupasseur vs. Rochereau, 21 Wallace 134.
    Jno. A. Oamvpl)éll, L. JS. Slmonds, for Defendant and Appellee :
    1. The statutes of Louisiana authorized a mortgage such as that of May, 1872.
    The depots, offices, machinery, shops, water stations, etc., form part of the organism of a “ railroad.”

      3. Tlie statute enumerates such property as the above.
    4. As to the mortgaging future property, there is a special legislation in regard to railroads.
    5. The title acquired by the purchasers at the sale by the U. S. Court, is not affected by legal mortgages recorded after the suit in chancery was brought and the property sequestered.
    6. It was not required of plaintiff in the chancery suit to bring in creditors claiming a lien acquired subsequently to the institution of the suit and the talcing possession of the property.
    7. The rule is that where real estate is taken into possession by the appointment of a receiver . or by sequestration, the title is bound/rom the filing of the hill. ‘

   The opinion of the Court was delivered by

Bermudez, C. J.

This is an hypothecary action to enforce the payment of liquidated debts, amounting in capital to some $75,000, alleged to be secured by a judicial mortgage. The defense is, that long prior to the registry of the judgments which plaintiff claims t.o own, the real estate described in the petition liad been mortgaged to secure the payment of a large amount of bonds, ($8,000,000) and that, for some time previous to the same registry, the property had been in custodia legis, under proceedings in, rem, within the possession and control of a court of competent jurisdiction, which adjudicated said land to he subject to the mortgage, ordered its sale and distributed the proceeds, and that, the judgment creditors are concluded thereby.

From a judgment in favor of the defendants, the plaintiff appealed.

We deem it unnecessary to consider the issue raised touching the sufficiency of the evidence offered to prove the title of the plaintiff to the several judgments of which he claims to he the assignee, or touching the validity of that title. Conceding that the authentication charged against is by the proper authority, and that the plaintiff is not merely a stakeholder, hut the real creditor, we will proceed to examine the merits of the case on that hypothesis.

The evidence shows that the judgments which the plaintiff claims to own were rendered against the New Orleans, St. Louis & Chicago Railroad Company, and were registered in the mortgage office, two on May 1st, 1876, and ono on March 16th, 1877; that on May 1st, 1872, the New Orleans, Jackson & Great Northern Railroad Company, had consented a “ mortgage ” on all its property, acquired and to be acquired, to secure the payment of bonds for the sum of eight millions of dollars, half of which were cancelled, issued to withdraw two previous classes of bonds uttered for construction purposes, and also to provide means for repairing, improving and operating the road and running it to the Ohio river; that the act was afterwards duly recorded on the 25th of June, 1872, regarding property in Louisiana; that in 1874 the parcels described in the petition were still owned by the New Orleans, Jackson & Great Northern Railroad Company, which then consolidated with the Mississippi Central Railroad Company ; ■ that the new organization tlien assumed the name of the New Orleans, St. Louis & Chicago Railroad Company, which succeeded the two Companies, acquiring all their rights and incurring all their obligations; that the parcels involved in this controversy had been acquired after the mortgage had been consented and before the registry of the plaintiff’s judgments; that one of them is the place in which the business of the corporation has been conducted since the year 1874, and that the other is a depot near the Mississippi river, both indispensable adjuncts.

In consequence of the non-payment of interest on the obligations issued under the act of mortgage, which was also a deed of trust, proceedings inequity were instituted on March 1st, 1876, before the U. S. Circuit Court in this City, for the ultimate purpose of having the property sold and its proceeds distributed. The Court appointed a receiver, who took possession of all the assets of the Company which were inventoried, and among which were included the parcels described in the petition.

The receiver continued in possession until after the sale, in March, 1877, which was for one million of dollars, which were paid and distributed. The deed comprising the real estate in question was approved by the court. Possession was delivered under the court’s order, and has been since then enjoyed by the Chicago, St. Louis & New Orleans Railroad Company, formed in that year.

In February, 1877, relying upon two of the judgments claimed by the plaintiff, the parties in whose name they then stood, intervened, averred the judgments, their registry, a judicial mortgage on all the real estate of the Company, the nullity of the mortgage of 1872, and concluded by a prayer to be paid by preference out of the proceeds of the real estate, then being advertised for sale. The facts do not seem to be controverted.

It is aj)parent that at the date of the registry of plaintiff’s judgments, the pieces of real estate were, as a matter of fact, in the possession and custody of a court of justice, which would undoubtedly have had jurisdiction had the property been covered by the mortgage. The act by which the mortgage was consented is in accord with the laws of Louisiana, and is also a deed of trust, or common law mortgage. This was necessary, as the mortgage was to affect property in Louisiana and other States, in which the .form to encumber real estate is different from that in which it can be done in this State. The Railroad Company, by that act, mortgaged and coveyed the road, its lands, franchises, right of way, rolling stock, real and personal property, owned and to be thereafter acquired, without any exception or reservation.

The contention in this case reduces itself to the inquiry: whether plaintiff’s claim is well founded, and whether the defendants have a superior title ; in. other words, simply, whether or not the real estate described in the petition, and on which a judicial mortgage is claimed and sought to be enforced, was or not covered by the mortgage executed in 1872, the moment that it was acquired by the Company.

If it was, then the Circuit Court had jurisdiction ; if it was not, then the proceeding for the sale was a nullity as to those who were not made or who did not make themselves parties thereto.

Por the investigation of the issue presented, we propose to inquire:

1. Whether the property -was affected with the mortgage.

2. Whether the U. S. Circuit Court had jurisdiction.

I.

It was well said in Brine vs. Ins. Co., 6 Otto, 27, by the U. S. Supreme Court, that “ it is a principle too firmly settled to admit of dispute at this day, that to the law of the State, in which the land is-situated, we must look for the rules which govern its descent, alienation and transfer, and for the effect and construction of conveyances.” It may be added, that to those laws also, we are to look for the mode of encumbering real estate so as to bind not only the obligors, but also third parties.

In this State, mortgage is a real right granted to a creditor over the property of his debtor for the security of his debt, giving him the power of having it seized and sold, in default of payment. As a rule, it bears upon real estate and its accessories, and cannot be consented on future property. R. C. C. 3278, 3281, 3282, 3308.

There exists a special stipulation that the property of persons not sui juris, including corporations, cannot be mortgaged by contract, in any other form and manner than that directed by law. R. C. C. 3202.

The contract from which the mortgage results, must be evidenced in writing, and must be recorded. R. C. C. 3305, 3342,

It is not upon principle that future property cannot be mortgaged. The civil law, from its earliest days, distinctly recognized that it could be encumbered and given in pledge.

Oonventio generalispignore dando bonorum velpostea quwsitorwm recepta est. Papinian de Pign. et Hyp. Pand. pars 4,1. 20, tit. 1, Cod. L. 8, t. 18; Impp., Sever, et Ant. A. A. Lucio. Didier Pailhé, Droit Romain, 634, No. 633; Domat, vi, part 1, l. 3, t. 1.

While, by Art. 2129, the Napoléon Code declares that future property shall not be mortgaged, yet by Art. 2130, it bends the rule by expressly permitting it to be done, when the property of the debtor is insufficient and where the fact is stated and a formal consent is given to mortgage les Mens présens et á venir. Troplong, Priv. and Hyp. 2, 537; Duranton 19, 377; Merlin Rep. Hyp. sec 2, 5 3, Art. 6; DallozHyp. ch. 2, sec. 4, Art. 3, Nos. 8 and 9; Favard, sec. 2, § 3, n. 10, and 10 bis.; Rolland de Villargnes, 278.

Snoli was tile law in this country, not only under the Spanish dominion, but also since-the admission of the State in the Union. Partidas 5, t.13, t.15; Curia, 381, 4.

The Code of 1808, Art. 28, p. 456, was to the effect that a conventional mortgage would extend to all the debtor’s estate, either present or to come, unless with respect to the latter some contrary disposition existed. 1 N. S. 550.

It was modified by the adoption in the Code of 1825 of Articles 3273 and 3276, which are now Articles 3306, 3308 and 3309 of the Revised Code of 1870. The new legislation provides, that to render a conventional mortgage valid, it is necessary that the act establishing it shall state precisely the nature and situation of each of the immovables on which the mortgage is granted, and that the exact sum for which it is given shall be declared in the act. The expressed consequence is, that no future property can be the subject of a conventional mortgage.

The Code of 1825 and the revised one nevertheless provide, that buildings and improvements subsequently put upon the land mortgaged shall be affected, and that if a person contracting an obligation grants a mortgage on property which he does not then own, the mortgage will be valid, if the debtor should ever after acquire the ownership of the property by whatever right, R. C. C. 3304.

The restriction of prohibition touching the mortgaging of future property, applies only to individuals in their ordinary transactions. It has no reference to judicial persons whose rights in that respect are regulated differently for the good and valid reasons that they are under the protection of administrators, who can act only advisedly and in the form and mannerprescribed by law, and who are not likely to be unduly influenced by external pressure.

Legal and judicial mortgages affect both the property owned by the debtor at the time of registry, and that which is subsequently acquired. Such mortgages are created without any stipulation, and even against the will of the debtor, in favor of incapacitated persons, .or of creditors judicially recognized. The law in its humanity has made an exception in favor of the debtor who consents a conventional mortgage, in order to place him beyond the rapacity of an exacting or merciless creditor, who otherwise would paralyze and deaden him in the blossom of life and prosperity.

"Les motifs qui ont déterminé les rédacteurs du Code á, prosorire Phypothhque générale sur les biens presents et a venir, et á n’admettre que l’hypotheque spéeiale sur les biens presents désignés par leur nature et leur situation, sont le désir: I, d’empécher le débiteur ¿’engager toute sa fortune pour les besoins d’un instant; 2, d’eviter l’accumulation sur un seul immeuble, de plusieurshypotliéques dontle concours entraine toujours des frais; 3, de favoriser la spóeialité, la publioitó qui est dans l’intéret de tous.” Rep. J. P. Vol. 8, p. 367, No. 134 ; Laurent, XXX, No. 514.

But, whatever those flexible rules be, they are such as have been prescribed by the law making power, which, in the absence of constitutional inhibition, has the right to modify them, and give them sneh further elasticity as, in its wisdom, it may see fit and proper.

Laws have consequently been passed for the special benefit of railroad corporations, on this subject of mortgages, and are to be found either in their respective charters, or in general statutes referring to them.

The title of the defendants originates in the deed by which the railroad corporation mortgaged its lands, property, franchises, rights of way, rolling stock, real and personal property, owned or to be thereafter acquired, without any exception or reservation, to secure the payment of the bonds already mentioned, and the interest thereon, which were designed to obtain the money necessary to accomplish the purpose* heretofore stated.

The authority to borrow money and make such a mortgage for the continuation and maintenance of the road in this State, is conferred in the charter granted and in statutes which apply to railroad corporations. These statutes have the physiognomy of those which have been adopted in pari materia, in other States of the Union, and which form part of the law of railroad corporations. The operation and extent of those statutes have been uniformly judicially determined.

It is notorious that, in the United States, railroads have been constructed for the most part with money borrowed upon the issue of negotiable bonds, secured by mortgage, which are intended for circulation in distant cities in this country and abroad. It is patent that there should exist, and that there is, a uniformity in the conditions of the mortgage, -which is purposed to induce and assure capitalists who are asked to lend money for long periods of time. The railroad, with all its accessories and appurtenances, is generally disposed of in ¡¡lobo, for it forms an entirety, an organism which should not be dismembered or parcelled out. The character of the business and time require* changes in the condition of the property, which necessitate additions, ameliorations and removals. Hence, mortgages, in order to afford a real guarantee, have to be made so as to include all of these, actual and prospective.

By its charter, granted in 1853, the New Orleans, Jackson & Great Northern Railroad Company was authorized to secure their loans by mortgaging the property of the Company, in whole or in part, as they shall deem expedient.

In 1854, 1855 and 1856, the General Assembly passed acts regulating the power of railroad corporations, conferring that of securing the payment of any obligations contracted by them for the construction of the road and for repairs upon it, by mortgage, whether the road had been completed or not at the time of making the mortgage, and that such mortgage would bind the property, the franchises and appurtenances of said railroad, its warehouses, depots, water stations, locomotives, and the like, registry being required at the place of domicil only. Acts 1853, No. 148, p. 114; 1854, No. 145, p. 112; 1855, No. 341, p. 485; 1856, No. 194, p. 205; Rev. Stat. 692, 726, 727.

The general legislation of those years, intended to constitute a unit, did amplify the charter of the Company. It conferred upon the New Orleans, Jackson & Great Northern Railroad Company, and upon all similar companies then, or thereafter in existence, identical powers, should they deem proper to exercise them. Those innovations to our local system, relative to conventional mortgages and to the power granted by the charter of 1853 to the Jackson Road, were prompted by and derived from other systems of legislation, necessitated by the urgent wants of like organizations in other States. The meaning, object and purport of that legislation can and must, therefore, be ascertained by an inquiry into the jurisprudence of the other States in which such statutes were adopted on the subject.

A review of the jurisprudence shows that there has been an uniformity in the decisions of the courts in that regard.

In the case of Pennock, 23 How. 175, from Ohio, the Supreme Court of the United States said:

Although the maxim is true, that a person cannot grant what he has not got, yet, in this case, a grant can take effect upon the property when it is brought into existence and belongs to the grantor, in fulfilment of an express agreement, founded on a good and valid consideration, where no rule of law is infringed, or rights of a third party prejudiced.” Vide also, 4 Otto, 382; 1 Wall. 254; 11 Wall. 459; 5 Otto, 10; 23 How. 128; 25 Barb. 284.

The ease of Dunham vs. Railway Company, reported in 1 Wall. 254, is a decisive authority. The statute under consideration was substantially that which appears in the itnenlarged charter of the Company in the instant case. It empowered the corporation to borrow money for completing and operating their railroad, to mortgage their corporate property and franchises. The mortgage, however, included the railroad built and to be built, and the right of way. The Court decided that it was clear law, that the trustee, for the benefit of the ■bondholders, took “ the road built and to be built,” together with all the other matters and things enumerated in the mortgage. Express authority was given to the Company by the law of the State, to borrow such sums of money as they deemed necessary for completing and operating their railroad and to issue and dispose of their bonds for any amount so borrowed. What they wanted was money, so as to make their road, and the authority was in as many words conferred to mortgage it for the purpose. The Court cited the early case, decided four years previous, reported in 23 How. 128, where the rights of the parties depended upon the general rules of law. This ruling is fully confirmed in subsequent adjudications by the same tribunal. 5 Otto, 10 ; 11 Wall. 459. Vide also, 2 Story Eq. J., 644.

There are other decisions to the same effect, on analagous statutes, by State courts. 100 N. S. 372; 18 Monroe, 431; 45 Barb. 284; 34 Vt. B. 484; 10 Gray, 568; 32 N. H. 484 ; 24 Wis. 551; 14 Minn. 297 ; 64 Penn. St. 366. These adjudications are substantially to the effect, that when the power is given to a railroad company to contract for loans and to mortgage its property to secure the payment of the debt, it conferred that of mortgaging the franchise, to maintain the railway and to take tolls, and all its property, present and prospective.

The high authority of those cases is such, that it cannot yield to whatever may have been determined in opposition, if so, by the U. S. Circuit Court for the Western District of Tenessee, in 1879, in the case of Calhoun, and by the U. S. Circuit Court for Maryland, in a suit involving the sale of real estate directed by a will, -which was annulled, because the land sold had been mentioned neither in the petition, nor in the decree.

Under its charter and the statutes mentioned, the Jackson Bailroad Company could mortgage its road, completed or not, and all the paraphernalia thereof. A road can be considered as completed only when all the land required for its purposes, from its inception to its terminus, for all its branches, for all its stations, depots, warehouses, when all its locomotives, cars and vehicles have been purchased or acquired, when all the buildings necessary for its manifold purposes have been put up and furnished, and the entire organism is in full operation and continues in good order. It is seldom that a road can be said to be completed, when it has the means of improving and uses the same, for it continually adds to its purchases of lands, for the purpose of building thereon now stations, depots or shops. When completed, as a matter of course, its buildings, its rolling stock and other paraphernalia, will necessitate repair, replacing, renewal. Hence it is, that it was designed to give to the conventional mortgage, in such cases, as to future property of any description in the intendment of the parties and within the purview of the contract acquired to maintain and complete the road, the same effect which the law accords to legal and to judicial mortgages, which affect and encumber property the very moment that it is acquired and forms part of the bulk of the estate of the debtor.

The mortgage of a railroad, its lands, property, franchises, rights and appurtenances, with the buildings, structures and improvements, comprehends not only the property in esse, forming part of the organism or structural arrangements, or the machinery and apparatus for the construction, maintenance or operations of the railroad, whether movable or immovable, but also such as shall be obtained, or added during the existence of the debt. The inquiry in such a case is not so much whether a person can grant, in, presentí, a security on property not yet belonging to him, but whether, where the law authorizes the mortgage of a road, completed and to be completed, the mortgage will affect the property, when it becomes the grantors, in fulfilment of an express agreement, founded on a good, real and valuable consideration.

The real estate described in the petition, acquired since the date of the mortgage, became affected with it hs effectually as though it had been expressly described in it, and the inscription of the judgments which plaintiff represents, as assignee, would have created a judicial mortgage, securing their payment, but for the proceedings in equity, which conduced to a sale, which can be well compared to the sale which would have been made of them, under executory process, had the circumstances justified a fiat in a State court.

The registry of the judgments, after the property subject to the mortgage had been taken possession of by the United States Circuit Court, could produce no more effect than if the same property had been seized by a sheriff, under a writ of seizure and sale. It is true, that a judicial mortgage is created by the mere registry of a' judgment, but it does not follow that, on that account, property has been effectually reached and encumbered. When such registry takes place, and the property previously encumbered sells for more than is necessary to pay and discharge anterior encumbrances, the purchaser has a right, under our law, to retain the remainder of the price of adjudication, subject to the rights against it of the registered judgment creditors, or eventually of the owner himself; but -when the property does not net enough to satisfy superior mortgages, the judgment creditor, whatever his judicial mortgage may be, if the sale transferred the property, can have recourse neither against the purchaser, nor against the property, which, under the seizure and the sale, passed to him, by the adjudication of the law officer.

ii.

The jurisdiction of the United States Circuit Court in equity, and the binding- effect of the exercise of the same, cannot be doubted.

In 9 Peters, 632, the United States Supreme Court said :

From the moment of the establishment of the District Court in the District of Louisiana, there was vested in it, by the Constitution, equity powers and jurisdiction. Those powers and that jurisdiction cannot be changed or limited by any act of Congress. It is not to be disputed, after admitting the equity jurisdiction of the Court, that its chancery powers are the same as those of other Circuit Courts of the United States. Its remedies are not to be according to the practice of the State Court, but according- to the principles of equity, as distinguished and defined in that country from which we derive a knowledge of our principles.” See also, 4 Wh. 108; 2 Story R. 555; 3 W. 212-220; 20 How. 558; 21 How. 582.

It was also said by the same Court:

“When a court has jurisdiction, it has a right to decide every question which occurs in the case. When the jurisdiction and the right of plaintiff to prosecute 1ns suit have once attached, the right cannot be arrested or taken away by proceedings in another suit. These rules have their foundation, not merely in equity, but in necessity. For, if one may enjoin, the other may retort, and thus the parties be without remedy. 7 How. S. C. R. 612.” This is true even when the jurisdiction is concurrent. 9 Wh. 532; 20 How. 583.

It is also held, that he who meddles with property in litigation, does so at his peril and is as conclusively bound by the result of the litigation, whatever it may be, as if he had been a party to the suit. They take the title subject to the contingencies, take the chances and must abide the result. 93 U. S. S. C. R. 163; 1 DeGex & Jones, 606; 4 Drury & W. Rep. 58-80; 5 Mon. 73; 35 Conn. R. 250; 20 How. 94; Fisher on Mortgage, 222.

Such is also the law and jurisprudence of this State on that subject, though in 24 A. 551, by a divided Court, it was held that the creditor would have to resort to the hypothecary action, as the plaintiff has done in this case. The legislation since made (1878, Act 3) has settled the jurisprudence on that subject. See 19 A. 356; 3 A. 248; 13 L. 260; 12 A. 873 ; 29 A. 465, 488.

In 14 Wall, 66, the United States Supreme Court says: The settled rule is, that where the subject matter of the suit in equity is real estate, which is taken into the possession of the Court, pending the litigation, by the appointment of a receiver, the jurisdiction attaches.

It is to be observed, that the railroad corporation, by its negotiation of more than three millions of dollars of its bonds, has received the consideration for the mortgage. When, therefore, it subsequently acquires property answering the description of property to be acquired, and such as was within honest intendment, it was bound, in equity, to transfer the interest to the mortgagee, or purchaser, immediately on the property being acquired. The object of the suit, in March, 1876, before the United States Circuit Court, and of the sequestration, was to compel the fulfilment of the terms and obligations of the contract. The decree was in furtherance of, and accomplished the object of the contract. No person could have been deluded or deceived, for the mortgage act, which is full and explicit, had been put on public record previous to the consolidation of the two companies, and before any credit had been given to the. consolidated company by any one. 2 Lowell, 458; 4 Met. 306; 64 Penn. 366 ; 23 How. 128.

Upon the whqle, we consider that, under the laws of the State, the New Orleans, Jackson & Great Northern Railroad Company had authority, in order to secure the payment of the bonds which it issued, for purposes of construction, repairs and improvement of the road, to mortgage its road completed and to be completed; that the effect of such mortgage is assimilated to that of a legal or judicial mortgage, which is prospective .from the time of registry; that the two parcels of real estate described in the petition, and which are indispensable accessories and adjuncts, became affected with such mortgage from the time of their acquisition by said Company ; that the United States Circuit Court had jurisdiction in equity to enforce the mortgage so contracted ; that the said two parcels of ground were embraced within and covered by the mortgage ; that the same went into the possession and control of said Court from the moment that it appointed a receiver, who qualified and took the same in his custody and care, with the other assets of the defaulting Company; that the proceeding in' that Court, likened to one in rem, was binding upon all who had an interest at stake ; that the sale of said property, ordered and executed, was legal, and transferred the title, which passed to the defendant in this case; that the registry of the judgment, whereof the plaintiff is the assignee, did not affect the property which was then in Qiistodia legis j that the irarcliase price having been paid into, and distributed by said Court, all claiming a privilege or a mortgage against the property thus judicially sold, should have intervened and claimed participation; that the price having proved inadequate, by far, to discharge the mortgage debt of 1872, the judgment creditors, even if their judgments had been registered previous to the proceedings to enforce the mortgage, would have no claim, either against the property, or against the purchasers; that still less have they any such, the registry having been made after the Court had taken possession of the property; that said property is, therefore, not liable as claimed, and that plaintiff’s demand was properly denied.

It is, therefore, ordered and decreed, that the judgment appealed from be affirmed, with costs.

Levy, J., absent.


text:
    No. 8340.
    C. A. Phillippi vs. C. Clairteaux et al.
    Where a planter gives a special mortgage on his plantation to cover and secure future advances, and the mortgagee, after advancing- part of the amount stipulated in the act, becomes a member of a commission house, a partnership by whom other advances are made during the year, and to whom the crop is consigned for sale, and by whom sold, and an account current is rendered by this firm, in which all the sums advanced under the mortgage, are charged both before and after the formation of the partnership, and with the consent of the mortgagee, the mortgagee cannot, after this, proceed alone to enforce the mortgage by seizure and sale, regardless of the credits that may be imputable to the debt from the proceeds of the crop.
    No settlement of the debt can be made in a proceeding to which the mortgagee and planter are alone parties. The firm should also be parties to the suit. Judgment perpetuating injunction affirmed and amended, so as to reserve the rights of all persons in interest in any future proceeding for the adjustment of the debt.
    APPEAL from the Twenty-sixth Judicial District Court, Parish of Jefferson. Malm, J.

      W. J. MoOime, Joseph Br moer, for Plaintiff and Apx>ellant.

      Chas. Lovque, C. W. Besangon, for Defendants and Appellees.
   The opinion of the Court was delivered by

Todd, J.


author: Bermudez,- C. J. Eenner,’ J. Tissot, Judge of the District Court, Todd, J.

text:
    No. 8448.
    J. N. Thibodaux vs. V. E. M. Anderson.
    An Act passed iu this State, purporting on its face to be a trust conveyance or deed of trust in fee simple, will not be given the effect of an act of mortgage binding on third parties, although recorded in the proper mortgage book, and although it might be considered between the parties as intended by them to secure' the payment of a debt, as therein mentioned.
    Parties contracting in this State are required in all their transactions affecting real estate here, to comply with the forms prescribed by the local law and customs, and to announce clearly the purpose of the Act. Reasonable doubt as to the true character of the Act will protect effectually third parties from its operation.
    APPEAL from the Twenty-second Judicial District Court, Parish of St. James. Gheevers, J.

      Sims é Poolié, for Godchaux, Appellant.

      Bayne & Denegre, 11. G. Dugué, for A. M. Boyd, Appellee :
    An act of mortgage or deed given to secure the payment of promissory notes described in the act, and which provides for the sale of the property to pay those notes at maturity, recorded in the office of the Recorder of Mortgages, in the Parish of St. James, in this State, where the propeity mortgaged is situated, is a good and valid mortgage, and will rank accordiug to its registry. Hayden vs. Nutt, 4 An. Rep., 65; Ells vs. Sims, 2 An. 253; 10 La. Rep.. 243; 32 An. Rep., 314.
   The opinion of the Court was delivered by

Bermudez,- C. J.

This is a contest over the residue of the proceeds of certain real estate sold at sheriff’s sale, under executory process.

After paying the plaintiff, who was the seizing creditor, there remained a balance of $1,823.88, which Godchaux, the purchaser, retained in his possession, claiming to be entitled to it, as the mortgage creditor next in rank.

A. M. Boyd, pretending to have a mortgage anterior to Godchaux’, the validity of which he does not dispute, took a rule to have said balance paid to him.

From a judgment in favor of Boyd, Godchaux has appealed.

The act upon which Boyd rests his claim and which he qualifies a “ mortgage," was passed in the Parish of St. James, and was recorded in the mortgage book. It is termed, in the body of it, a trust conveyance,” or deed of trust in fee simple. It declares substantially, that for the consideration of ten dollars, and for the securing of a sum of $29,950, evidenced by notes, Anderson grants, bargains, sells and conveys unto A. M. Boyd, trustee, the property in question ; that when the, debt shall have been paid, the deed will be void, and should there be a failure to pay, the trustee is to have the property sold, and is to satisfy the debt and to pay over to Anderson what balance might thereafter remain. It is not in the form in which acts of mortgage are usually drawn up in this State.

The act on which Godchaux relies is unmistakably an act of mortgage executed as is customary for such acts to be. It is clearly intended to secure the payment óf a sum of money due him, he, the creditor, in case of non-payment, to have the right to proceed judicially to the seizure and sale of it for the satisfaction- of his claim. It is dated July 28th, 1877, and was duly recorded in the proper mortgage book on the same day.

It is certain that, under the jurisprudence, had the act of Boyd been passed cntf of this State, between parties residing therein, relative to real estate in this State, it. could be recognized and enforced, but only between them, as a contract intended to secure the payment of a debt. In such a case, the intention of the parties, inter se, would be ascertainable beyond the act, and deducible from the fact of their residence at the place where such an act would be treated as, a mortgage act, because the form of written instruments is governed by the law and usages of the place where they are passed. As between them, effect could be given to such acts accordingly, at the place where they were, designed to be executed, or carried out; but this could not take place so as to affect third persons who could not be held to be bound by notice, unless such acts, designed to convey knowledge, were drawn in legal form and couched in clear language, unmistakably expressive, of their substance and object, under the laws and customs of this State.

The authorities relied upon, on behalf of the plaintiff in rule, are cases in which differences arose between the parties or privies to such acts, and lia-ve no bearing upon a case like the present one, in which a third person is sought to be affected by the form and substance of the act in question, recorded, as it was, long previous to Godchaux’.

The acts in those cases were given the effect which they received, not from what they expressed on their face, but from the evidence adduced on the trial of the parties, to show the intention which they had when they entered into the contract. In those cases the parties suing were generally persons seeking to acquire title to the thing as owners, but on evidence by the other parties, the. Court never held that the act was a mortgage, but merely declared that it was a security, and that the debtor or vendor, before he could recover, would have to pay the vendee or creditor the amount due him.

This is, indeed, the first instance of this description which ever was submitted to this Court for determination, on a question of mortgage affecting third persons.

We do not hesitate to declare that as this nondescript act does not indicate its character and does-not clearly-purport on its face to be a mortgage, third persons are not bound to ascertain its nature, object and purport, by analyzing its features by systems of reasoning which do not, with certainty, conduce to the conclusion that it is an act of mortgage. It is easier to say what the act is not, than to say what it is. Whatever contract it was intended to evidence, it surely cannot be claimed that it is 'expressive of a mortgage given by Anderson to Boyd, susceptible of affecting third persons, although it might be entitled to be considered as a security- between the parties. 14 A. 845 ; 18 A. 732; 12 A. 529; 23 A. 281, 665 ; 16 A. 12.

Parties contracting in this State are required, in all their transactions affecting immovables situated therein, conferring or divesting real rights in and to such property, to comply with the forms prescribed by the local law and usages and to announce distinctly, to avoid surprise, the purpose of the instrument which is made the depository of their intentions and contract; otherwise, third persons, sought to be affected thereby, will not be concluded. Index animi verbo.

Reasonable doubt as to the true character of an act will always protect effectually third parties from the operation of the same.

It is, therefore, ordered and decreed, that the judgment appealed from be reversed, and it is now ordered, adjudged aud decreed, that the rule taken by A. M. Boyd, for. the payment of the residue of the sale to him, be reversed, and that Leon G-odohaux be recognized as entitled to apply said sum to the satisfaction in part of his mortgage claim in the premises.

It is further ordered, that appellee pay costs in both courts.

Mr.- Justice Poché recuses himself.

Mr. Justice Todd dissents.

In this case, Mr. Justice Poché having recused himself, and Mr. Justice Levy being absent, and the remaining justices failing to agree, his Honor, A. L. Tissot, Judge of the Civil District Court, Division A, for the Parish of Orleans, having been called upon to participate in the deliberation on the petition for a rehearing, and having done so, took his seat on the Bench in the stead of Mr. Justice Poché, recused, under Article 85 of the Constitution, whereupon Mr. Justice Eenner delivered tlie opinion of the Court, the Chief Justice and his Honor Judge Tissot concurring, which decree is in the words and figures following :

On Application foe, Rehearing-.

Eenner,’ J.

This case presents no question except one, viz.: whether the record of the instrument in question, in the office of the Recorder of Mortgages, secures to the beneficiary the rights of a mortgage1 creditor as against third persons.

The provisions of our law relative to the inscription of mortgages, and regulating the effect of such inscriptions, necessarily refer to instruments known and defined in the law of Louisiana as mortgages, by which we do not mean that the use of the word mortgage” is sacramental, but only that the instrument must contain all the elements essential to constitute a Louisiana mortgage, and none inconsistent therewith.

It is needless to say that the mere record of an instrument in the mortgage book of a Recorder, cannot make that a mortgage which is not such, and that if the instrument be not a mortgage, its inscription cannot make it operate as such as against third persons.

Tiie instrument now under consideration is what is known as a common law mortgage. To ascertain whether or not a common law mortgage is the same thing as a Louisiana mortgage, we have only to examine the definitions of the former, given by the highest authorities :

“ Amortgage is a transfer oí property, as securityfora debt.” Conrad vs. Atlantic, 1 Peters, 386.
Mortgage is the conveyance of an estate, by way of pledge, for the security of debt, and to become void on payment of it.” 4 Kent’s Com. 136.
“ A mortgage, at common law, may be defined to be an estate created by a conveyance, absolute in its form, but intended to secure the performance of some act, such as the payment of money and the like, by the grantor or some other person, and to become void if the act is performed, agreeably to the terms prescribed, at the time of making such conveyance. It is, therefore, an estate defeasible by the performance of a condition subsequent.” 1 Washburn’s Real Prop. 478.

The mere statement of these definitions indicates at once the wide divergence and, indeed, inconsistency, between such an instrument and the contract known and defined as a mortgage in the law of Louisiana.

While it is essential, in the former, that the title should pass, and perfectly permissible that the possession also should pass to the mortgagee or to a third person for his benefit, it is equally essential, in the latter contract, that both the title and possession (as owner) should remain in the mortgagor or his subsequent assigns, so much so, tlmt the acquisition of title by the mortgagee would operate, eo instanti, to extinguish the mortgage.

A lawyer profoundly versed in the abstruse, shifting and complicated jurisprudence of England and our sister States of this Union, and perhaps some of our citizens bred in those States, would be aware that courts of equity in their interpretation and administration of rights and remedies of parties to these instruments, have so construed and modified their meaning and effect as to assimilate them more closely to our own mortgages, than would have been deemed possible from the plain expressions of the instruments. But the great mass of our people, who are to be affected with notice by the inscription of such instruments, have not these advantages; and we are at a loss to understand upon what principle we could- hold such persons bound to know, or to take notice, that an instrument, purporting- on its face to divest the title of the alleged mortgagor, could possibly operate as a mortgage granted by him.

They are certainly not in the slightest degree affected by the intentions of the parties to the act, except in so far as those intentions are expressed therein.

We rest our conclusion here.

We are not now concerned with questions as to what may be the effect of such instruments, as between the parties, nor what might be their effects, even as against third persons if recorded as conveyances.

We merely hold that the instrument before us is not, upon its face, in form or in substance, a mortgage, and that its record in the mortgage book cannot give effect to it as a mortgage against third persons.

We believe it to be sound policy to discourage the use of forms of contract not known to our law, and to save third persons from the effect of ambiguous contracts, not expressing their nature and effect upon their face, and only to be understood in the sense desired by reversing the ordinary meaning of words.

The question, in its present shape, is res nova, and former decisions, properly interpreted, contain nothing inconsistent with our present position.

Rehearing refused.

The Chief Justice concurs in this opinion and decree, and Judge Tissot, called in place of Justice Poché, recused, also concurs, with reasons assigned in his separate opinion.

Justice Todd dissents.

On Application fob Rehearing.

Tissot, Judge of the District Court,

participating:

The instrument under consideration, and upon which the Relator founds his pretensions, cannot be considered as a valid Louisiana conventional mortgage. There seems to be a marked difference between our mortgage and the common law mortgage of our sister States. It is impossible, under our laws and jurisprudence, that Boyd should have purchased the property described in the deed in question and, at the same time, have retained a mortgage thereon. Here the property could not be conveyed to him, and he be allowed to have a legal right thereon for the discharge of any such obligation as he claims.

Mortgage is defined by our Civil Code to be a right granted to the creditor over the property of his debtor, for the security of his debt, giving him the power of having the property seized and sold in default of payment. R. C. C. 3278, (3245).

It is a species of pledge, the thing mortgaged being bound for the payment of the debt or, fulfilment of the obligation. R. C. C. 3279, (3246). It resembles the pledge: 1, in that both are granted to the creditor, for the security of his debt; 2, in that both bind the thing subjected to them, and that the same thing cannot be engaged to a second creditor to the prejudice of the first. R. C. C. 3280, (3247).

It differs from pledge in this: 1, that mortgage exists only on immovables, ships, steamboats and other vessels, or such rights as are described by law, and that the pledge has for its object only movables, corporeal or incorporeal; 2, that in pledge, the movables and effects subjected to it are put into the possession of the creditor or of a third person agreed upon by the parties, while,the mortgage only subjects to the rights of the creditor the property on which it is imposed, without it being necessary that he should have actual possession. R, C. C. 3281, (3248). It only takes place in such instances as are authorized by law. R. C. C. 3283, (3250).

The conventional mortgage is a contract by wliicha person binds the whole of his property or a portion of it only, in favor of another, to secure the execution of some engagement, but without divesting himself of the possession. R. C. C. 3286, (3253); 3287, (3254); 3290, (3257). These provisions of our laws clearly repel the idea that one can buy property and retain, at the same time, a conventional mortgage on it in his own favor.

Tested by these provisions of our laws, the instrument above referred to must be declared invalid as a Louisiana conventional mortgage.

It is styled a deed of trust.” It purports to bargain, sell and convey to Alston Boyd, as trustee, the property described in its body. By its terms Boyd is to have and to hold said property, by himself, his heirs and assigns, forever, in fee simple. The grantor is therein given the right to reimburse the grantee the amount of its consideration, etc.

No mortgage is ever granted in these'terms in this State. And they cannot be so consented.

Deeds of trust” executed here are not known to be recognized by this Court. If this instrument be anything, it is a contract of sale with right of redemption.

Our laws clearly define such a contract as that embodied in this deed of trust.” This “ deed” or contract contains all the essential requirements of a regular act of sale. A thing sold, a price, and a consent. R. C. C. 2459, (2414). It is a perfect sale. The saléis considered tobe perfect between the parties, and the property is of right acquired to the purchaser, with regard to the seller, as soon as there exists an agreement for the object and for the price thereof. Although the object has not yet been delivered, nor the price paid. R. C. C. 2456, (2431). The tradition or delivery of immovables is considered as always accompanying the public act which transfers the property. Every obstacle which the seller afterwards imposes to prevent the corporeal possession of the buyer is considered as a trespass. R. C. C. 2479, (2455).

This deed” contains the power of redemption recognized by Article 2566, (2544) of the Revised Civil Code, and defined in Article 2567 (2545) of said Code. It is unmistakably a sale with power of redemption and cannot be tortured into a mortgage.

It is useless to seek for the intention of the parties. It is clearly expressed by the terms of the act. Why should it be held that the parties intended to make a common law mortgage, unknown’to our law, when the act shows that they actually entered into a valid contract of sale, with power and right of redemption fully recognized and defined by our law and jurisprudence.

It is believed to be of the utmost importance that the line of distinction between contracts should be kept as clearly marked and defined in our jurisprudence as it is by the law itself.

Boyd could have preserved his rights by properly recording this deed. Registry of such an act in the mortgage records can give Mm no mortgage.

There is no necessity to set aside the expressed intent of the parties, the substance, to seek for a latent intent, a mere shadow.

Those who live in this State must look to its law for the definition of their contracts. And, when they find a contract of sale with right of redemption erroneously inscribed in the mortgage registry, they cannot be asked or required to consider it as a mortgage, even if it be labelled as such.

For these reasons, I concur in the refusal of the rehearing sought herein, and give my adhesion to the decree herein rendered by his Honor the Chief Justice.

Dissenting Opinion.

Todd, J.

The instrument in question, executed by Anderson in favor of Boyd, by its very terms is a mortgage. As declared therein, it was given for the purpose of better securing the debt of $25,950, owing by Anderson to Boyd. If this debt was paid, the instrument was to be void. If not paid, authority was given to the creditor, Boyd, to cause the sale of the property, and out of the proceeds he was to retain only the amount of his debt, interests and costs, and the balance was to be paid over to Anderson. Anderson, the debtor, was left in possession of the property.

The nominal consideration or price of ten dollars, for property worth many thousands, is not to be considered as making or affecting the character of the contract.

It fulfilled substantially, and we might say minutely, all the essential elements of a mortgage, and constituted a security given by the debtor on an immovable, in favor of his creditor, with power to sell the same if the debt was not paid, thus meeting the requisites of such a contract as prescribed by our Code. C. C. 3278.

The effect of such a contract should' be governed, in my opinion, by the law of the place where the immovable is situated, which is the object of the contract, regardless of its form. In fact, there is no particular form for a mortgage prescribed by our laws.

Speaking of an instrument almost identically of the same form as this, Mr. Justice Slidell, as the organ of the Court, in the case of Hayden vs. Nutt, 4 An. 71, said:

“ It is difficult to exclude this instrument, taken in its fair intendment, from the scope and definition given in our Code. The conventional mortgage is a contract by which a person binds the whole of his property, or a portion of it only, to secure the execution of some engagement, but without divesting himself of possession.”

Such an instrument has always been construed to be a mortgage by this Court in a long line of decisions. 1 M. N. S. 418; 2 N. S. 22; 10 L. 243; 4 An. 71; 5 An. 99: 2 An. 253; 15 An. 386; 23 An. 665.

This is admitted in the majority opinion, but the effect of a contract in this form, as a mortgage, it is ruled, should be confined to the contracting parties, and cannot affect third persons, and also is not to be extended to contracts made, or acts passed in this State. In my opinion, these conditions do not affect its character. If it is a mortgage between the contracting parties, its registry as a mortgage, and in the mortgage record book of the parish where the property is situated, should import the same effect to it against all the world.

The instrument was so recorded, and in my opinion, Godchaux, nor any one else, on looking at that record in the mortgage book, could have had the slightest doubt that it gave unmistakable evidence of a mortgage.

If tiie effect of this contract is to be governed by the law of this State, where it was entered into, and if its terms and the language of the act fulfils the essential elements of a mortgage contract, as defined by our Code, as is manifest, then the fact that it was made and signed in this State by the parties personally therein, I think, rather strengthens than weakens its effect. At any rate, this circumstance should not, in my opinion, have any bearing prejudicial to the hypothecary character of the contract. In the case of Hutchings vs. Field et al., 10 L. 237, a writing similarly drawn was declared to be a mortgage, and effect was given to it as such against third persons, who claimed to have acquired rights under it at a sale from one of the original contracting parties, and this contract, in the case cited, was between parties living in this State, was passed here, and the subject of it was property situated in the State. See also, Wolf vs. Wolf, 12 An. 530; Watson vs. James, 15 An. 386.

I consider the contract essentially one of mortgage. It was recorded as such. Godchaux had notice of it, and was bound to knowthat itwas a mortgage. As such mortgage, it proved his, Godchaux’ mortgage, of a later date and, in my opinion, entitled Boyd, the holder of it, to a preference on the proceeds of the property.

For these reasons, I am constrained to dissent from the conclusions reached by the majority of the Court.