author: Levy, J. Todd, J.

text:
    No. 8552.
    J. W. Burbbridge & Co. vs. Mrs. Elizabeth Chinn, Tutrix, et al.
    In order to revive a judgment rendered against a succession, which was unrepresented at the time the suit to revive was instituted, a citation of tlie heirs, who have not renounced the succession, is sufficient to maintain the action.
    APPEAL from the Twenty-third Judicial District Court, Parish of West Baton Rouge. Cole, J.

      II. M. Favrot, for Plaintiffs and Appellees :
    The maxim of Ic mart saisit U vij\ is so inlerwoven with the principles established in our Civil Code on the subject of succession, and so well recognized in our jurisprudence that a mere reference to tho law is all that is required. II. ('. C. 871, 872, 873, 874, 880, 884, 940, 941, 942, 943.
    The heir is authorized to institute all the actions, even possessory ones, which tho doceascd had a right to institute, aud to prosecute those already commenced; for the licir, in everything, represents the deceased, and is of full right in liis placo as well for his rights as his obligations. K. C. C. 945; 2 A. 341; 5 A. 114; 15 X. 529; 4 A. 571.
    Personal actions, being attached to the person, of tho debtor, may he brought against all his heirs, should he die without extinguishing them. C. P. 40, 120,122.

      Barrouf & Pope, for Defendant and Appellant:
    1. "Where heirs, when sued as sach, before judgment rendered, file an exception renouncing the succession in said case, the suit should ho dismissed.
    2. Ko judgment can be rendered against an heir in said capacity, after he has renounced the succession and interposed an exception to that effect. 12 An. 93; 2 Xa. 375.

      3. A j udiciul renunoiation. is not only allowed, but it is of higher rank and greater solemnity than the extra judicial renunciation of Art. K. C. C. 1017; 33 An. 100, Carter, etc., vs. ITowler.
    4. The heir is not precluded from renouncing, bocause at a tax sale of the ancestor’s property lie purchased same. There is manifested by this aet no intention to hold as heir, but on the other hand the intention is to acquire by another title. Intention is the touch-stone of the effect ©f the heirs’ act, as to acceptance ornot j 12 An. 143; It, C. C. 994.
   The opinion of the Court was delivered by

Levy, J.

This is an action to revive a judgment rendered on the 23d of April, 1873, in favor of the plaintiffs, J. W. Burbridge & Co. vs. the Succession of W. W. Lemmon, deceased, then represented by Mrs. Elizabeth Chinn, tutrix; the said tutrix has died since the rendition of the judgment, and there lias been no subsequent administration of the succession, either by an administrator or tutor. On the 11th of April, 1881, this suit was instituted, and service of petition and citation made on W. W. Lemmon and Mary J. Lemmon, the children and major heirs of W. W. Lemmon, deceased.

Defendants filed exception to' plaintiffs’ right of action against them, averring their renunciation of said succession. A notarial act of renunciation by said heirs was made on the 16th of June, 1881, after citation served on them in this suit. The exception was overruled, and there was final judgment of revival as prayed for.

Plaintiffs contend, that by the purchase of a portion of the property of their deceased father at a tax sale, by these heirs, there was an unconditional acceptance of the succession. We think otherwise, and our view is sustained' by the decisions in 31 A. 259; 12 A. 143; 8 N. S. 550.

The question then is, are there proper parties defendant to this suit for revival 1 Was it sufficient to maintain this action by making the heirs, who had not accepted the succession, parties, or was it necessary to provoke an administration and cite the administrator 9

The case of O’Donald vs. Lobdell, 2 La. 299, disposes of this question effectually to our minds. Justice Porter, as the organ of the Court, therein says: “ The legislature, in the Louisiana Code, has made a material change in this part of our law. The jurisconsults charged with the preparation of this work, in their report to the General Assembly, expressly state that they thought it wise to ‘ adopt the rule which vests the right of the heir from the moment of the death of the deceased.’”

‘‘This was the doctrine of the ancient law of France, expressed by the well-known phrase le mort sxisit la vif.” See Touillier Droit Civil Frangais, in the 938th Article it is declared that the heir being considered as having succeeded to the deceased, from the instant of his death, the first effect of this right is, that the heir transmits the succession to his own heirs, with the right of accepting or renouncing; and in the 939th Article: “For the heir, in everything, represents the deceased, and is of full right in his place, as well for his rights as Ms obligations.” The Court, in that ease, further says: “ The 940th Article of the Louisiana Code declares, that the right of the heir is in suspense, until he accepts or renounces. Such is also the French jurisprudence, in the Napoleon Code.” “If the creditors apprehend any danger from the heir collecting funds of a succession, which he may thereafter reject, they have the power to call on him to reject or renounce, and in default of his immediate decision, an administrator can be placed in charge of the estate. Until they do so, however, the succession is not in abeyance, and without a representative. The law has expressly said that the heir represents the succession, and is seized of it, from the moment it is opened. La. Code, 992, 1020,1032, 1034, 1037.”

Adopting the principles above stated, the succession was represented by the heirs, and the service of citation on them was sufficient to maintain the institution of the action for revival.

In overruling the exception, the Court a qua reserved to the heirs “ the right they may have under this exception to combat the execution of the judgment on account of their renunciation.” The prayer of the petition is alone for the revival of the judgment, and not for a personal judgment against the heirs, and although there is no apparent necessity, as far as this action is concerned, for such reservation as they seem earnestly to desire it to be embodied in the judgment, we comply with their request.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be amended, by reserving the said right to said heirs, and that it be in all other respects affirmed, at the costs of the appellant.

On Application por a Rehearing.

Todd, J.

In our decree, although the judgment appealed from was amended in favor of the appellants, we condemned them to pay the costs of both Courts. The change of the judgment in-their favor by this Court entitled them to the costs of appeal. Our decree is, therefore, amended accordingly.

Rehearing refused.

Levy, J., absent.


source: Caselaw Access Project

author: Todd, J. Roché, J.

license: Public Domain

text:
    No. 8473.
    C. Chaffe, Jr., Syndic, vs. Mrs. Nancy A. Scheen and Husband.
    In a suit to annul a dation en patement, it is not inconsistent to allege that the act is a pure simulation, but if not simulated, that it has been made in fraud of creditors and gives an unfair preference.
    Where an insolvent has made a surrender under our State laws, which has been accepted, and a syndic has boon appointed by the creditors who have participated in all the insolvent proceedings, they are not estopped from opposing debts placed on tlie schedule, nor from suing to bring into the estate property alleged to have been fraudulently disposed of by the insolvent.
    When the act states that the consideration of the dation enpaiement is a donation to the wife of her father’s undetermined interest in a commercial partnership, without any aooom* pauying inventory of the partnership assets, and the alleged donor did not joiu in the act; and where, in a suit for separation of property, tlie court had refused to recognize such an item, said dation en %wiemcat must be considered a nullity.
    This case is not one covered by the Code, which provides that oven if the consideration, expressed, does not exist, the act will bo valid, if sufficient consideration is shown. Dy that is meant such consideration as was contemplated by the partios, at the time of execution of the act, but which was misdescribed in said act
    Where a judgment of separation was rendered, but no execution issued, under which any seizure was made, for more than a year afterwards, it will not he considered a bona fide non-interrupted suit, as is required, in order to obtain payment of the wife’s claims.
    Where there is no return made of the writ, there is no evidence that execution ever issued.
    APPEAL from the Tenth Judicial District Court, Parish of Red River. Logan, J.

      Montfort S. Jones, for Plaintiff and Appellant:
    On Motion to Elect.
    1. It is not an inconsistency in pleading to a direct action to annul, to allege that a sale is simulated, and if not simulated that it is fraudulent. 30 A. 1203; 27 A. 98.
    2. The law does not permit a creditor to sue all his debtors in the same action, unless there is a,iomt liability or priority of contract which authorizes the joinder; nor will it permit a party to be joined in a demand in which he has no interest. 14 A. 181; 12 A. 74.
    On the Merits.
    1. The dation enpaiement from Sebeen to his wife, having been made fov a false cause, or for a consideration which never existed, was a simulation in fraud of creditors, and an absolute nullity. C. C. 1893, 1894, 1900, 1779; 1 A. 192; 3 A. 230.
    2. The consideration expressed in the deed having been sued for by Mrs. Sebeen and rejected by the Court, and she having acquiesced in the judgment, her light to sot it up is res adjudicata against her. This Court has a right to construe that judgment, and in doing this, that construction must be adopted which is in accordance with the facts and law of the case. 4 L. 100 * 5 L. 289 ; 15 A. 223, 079; 10 A. 305.
    3. Any indebtedness on the part of the vendor to the vendee, not in the contemplation of the parties at the time of the transaction, will not give validity to a nudum pactum. Where the consideration expressed does not exist, to meet the requirements of 0 . 0.1900, the existence of a real indebtedness on the part of the vendor must be proved and identified with the contract to the extent of being shown to be the real “ consideration.'1 30 A,. 750.
    4. Donations inter vivos of immovables and incorporeal things must bo by authentic act; and where such donations constitute the cause aud consideration of an alleged indebted' ness on the part of the husband to the wife, and the fact of the giving which constituted tli© debt, is denied, they must be proved by authentic evidence, and parol is not admissible to prove same. C. C. 1536, 1538; 22 A. 97, 358, 393; 15 A. 585; 12 M. 649; 3 A. 610; 23 A. 242.
    r>. Article 1341. Civil Code, merely dispenses with the authentic act of acceptance on tho part of the donee, required in the preceding Article, 1540. It does not dispense with the authentic actof donation, but, on the contrary, presupposes such an act. O. C. 1540,1541.
    fi. Items of indebtedness in excess of $500 must be proved by one witness and corroborating circumstances. C. C. 2277.
    7. The recitals of a deed cannot bo altered, contradicted or explained by oral testimony.
    8. The fruits of real estate follow the ownership.
    it. A judgment in tho wife’s favor and against the husband, can have no effect as against third parties, when alleged to he fraudulent, unless supported by proof of its truth; nor is the creditor concluded by the proof adduced when the judgment was rendered. If required, she must administer logal proof. 28 A. 546; 19 A. 96 ; 4 L. 422; 12 L. 304 ; 11 L, 536; 4 A. 135 ; 10 A. 87.
    10. By the operation of Art. 123, Constitution of 1868, and Act 95 of 1869, a tacit mortgage in existence prior to January, 187J, and not recorded by that date, is absolutely destroyed, as to third persons, and can never be revived. 22 A. 278; 24 A. 25 $ 28 A. 584.
    11. The creditors of J. H. Sohoea, tho husband, having acquired superior rights against his property before the wife’s claim became a mortgage by registry, and before any valid transfer to her had been made, she can be allowed to retain said proporty as a credit on her judgment, subsequently obtained, only subject to the claims of the creditors. 33 A. 821, 532.
    12. The dation cn paumznt of Nov. 23,1878, from Sebeen to his wife, having been made* not to replace jjaraphernalia, hut for no consideration, and no consideration having been proven, was a simulationiu fraud of creditors and an absolute nullity. It cannot he given effect by a subsequent judgment. Corpus sine anima, extrinsecus apparens, intrinsecus nihil habens— or, as Mr. Justice Spencer described it, vox et preetereanihil — it cannot he given any effect whatever.
    13. “ The separation of property, although decreed by á court of justice, is null, if it has not been executed by the payment of the rights and claims of the wife, made to appear by an authentic act, as far as the estate of the husband can meet them, or at least by a bona fide uninterrupted suit to obtain them. C. C. 2428 (2402); Nachman vs. LeBlanc, 28 A. 345; 24 A. 138; 23 A. 571.

      <T. F. Pierson, for Defendants and Appellees :
    1. Plaintiff is nob entitled to cumulate in the same suit two causes of action which are contrary to or preclude each other. C. P. 149. And, if he do so, defondant is entitled, before answering, to have him elect upon which one of tho two he means to proceed. C. P. 152.
    2 The allegations that an act is a simulation, or if not simulated, that it is a fraudulent act, subject to be revoked, are allegations and causes of action which are contrary to and preclude each other. Hen’s Higst., p. 1031, No. 1.
    3. The allegation that the £ct is one or the other is an implied admission that it is not bot7i1 and that one of these attributes necessarily precludes the other, and plaintiff must elect upon which one ho will stand
    4. A litigant cannot he permitted to shift at wilL to a contradictory position in reference to the subject-matter of the litigation to defeat an adversary. Hen’s Higst., p. 526, No. 22; ib. 143, 2031.
    f>. A solemn judicial admission cannot he denied when made with a full knowledge of the truth. Such admission can only ho retracted upon the plea of error of fact.
    6. When tho law makes no distinction the court can make none, and the rule established by O. P. 149 cannot be evaded by cumulating inconsistent demands in tho alternative form.
    7. The title to the defendant from her husband and her judgment against him being subsequently made a part of tho proceedings by the husband, in making a voluntary snrrender to Ms creditors, becomes ratified, indorsed and acquiesced in by the unqualified and unreserved acceptance thereof by his creditors, and cannot, thereafter, be assailed by the syndic representing such creditors, except upon the plea of error, fraud, deceit or the like.
    8. The husband may make a transfer of property to bis wife, in satisfaction of her paraphernal claims, when he is embarrassed or insolvent, and whether her mortgage is recorded against him or not, and whether or not there be a mortage in favor of a third person on the property transferred. Levi vs. Morgan, 33 An. 534; Payne vs.Hemp, ib. 818.
    9. If the cause expressed iu the consideration should be one that does not exist, yet tin» contract cannot be invalidated if the party can show the existence of a true and sufficient consideration. C. 0., 1900; Brown vs. Brown, 30 An. 966 ; 3 An. 235; 12 An. 531; 13 An. 25; 18 An. 238, 733.
    10. Where the entire record of the wife's suit and judgment against her husband is presented, including all the evidence filed therein, the judgment being rendered on default in the absence of the husband, there being no irregularity appareut in the proceedings and the evidence supporting the judgment in her favor, the burden of proof will be shifted on the syndic of the husband’s insolvent estate, plaintiff assailing her judgment for fraud and collusion, to make good his allegations by proof.
    11. Parol testimony is admissible to prove the wife’s account against the husbaud, though the account be for the price of lands given to her hy her father by parol. She is not bound to produce authentic evidence of the donation from her father of the property, the proceeds of which have been converted and used by her husband. In such case neither the husband nor his creditors under Mm can contest the validity of the donation to tbe wife by her father The validity of such donation can he inquired into ouly by the donor or some one under him, or the donee. 2 L. 40; Snow vs. Copeley, 3 An. 610; Pecquet vs. Pecquet, 17 An. 224; Johnson & Hamilton vs. Jordan <fe Poster, 22 An. 486.
    The husband, who is the agent, can never be heard to contest the title of the wife's property in his hands as such, nor can third persons do so under him. He is hound to restore what he has even unduly received. C. C 3005 [2974]; 21 An. 545, 645; 22 An. 599; 10 R. 481.
    12. The Civil Code of La., unlike the Code Hapoleon, fixes no peremptory time within which the execution of the judgment of the wife must he begun. Pulton vs. Husband. 7 R. <4. The time within which the execution of the judgment against the husband must be begun depends upon tbe exigencies or circumstances of each case. She might be unable to obtain an execution for a year or more and still continue an uninterrupted suit to obtain payment. 23 An. 321; 7 R. 74; 10 An. 688; 13 An. 474; 12 An. 76.
    Where the judgment is rendeied on the 27th of May, but not exigible untilabout the 1st of July, and execution issued thereon about the 12th or 15th of September, her judgment will not be invalidated, where the property of the husband was alliu custodiam legin at the suit of the attaching creditors of the husband. 7 R. 74; 10 An. 688.
   The opinion of the Court was delivered hy

Todd, J.

This is an action brought by the syndic of the estates of J. H. Scheen and of Lisso & Scheen, insolvents, to annul an act of giving in payment, executed hy J. H. Scheen to his wife, Mrs. Nancy A. Scheen, on the 23d of November, 1378, and a judgment obtained by the wife against her-said husband on the 27th of May, 1879.

There was an exception filed to the petition, on the ground of its containing conflicting allegations, iu charging thatthe act of giving in payment attacked, was simulated, and if not a pure simulation, it was a fraudulent attempt on the part of an insolvent debtor to give an unfair preference to one of his creditors.

The prayer of the petition was substantially and to the effect that the act and j udgment assailed be declared null and void. This prayer was equally appropriate, whether the alleged nullity resulted from the one cause or the other of those assigned. The object and purpose of the suit was to procure the annulling of the act and judicial proceeding complained of, in order to reach the property of the insolvent debtor. It was an action of nullity, and its prayer determined its character, and was comprehensive enough to justify the decree of nullity asked for, upon either of the grounds urged, in the alternative in the petition.

This identical question was determined in the case of Johnson vs. Mayer, 30 A. 1203, and in the reasons of the Court for their conclusion upon the question involved, we quote the following:

The next plea filed by defendants, was one to compel plaintiff to elect between the two grounds of his demand, to-wit: Simulation and fraud on the ground that they are inconsistent. * * * We see no inconsistency in saying that a sale is simulated, and if not simulated, that it is fraudulent. It is very like claiming a right by two titles. * * * When sales are attacked by direct action, there is no reason why the party may not demand relief from them by alleging simulation, or fraud, or both. We are not disposed to hamper the remedies of creditors by doubtful technicalities. In the class of cases now under consideration, the widest latitude should be given them, for they are necessarily, to a great degree, uninformed as to the precise relation existing between their debtor and his coadjutors in wrongdoing. Often they are compelled to strike in the dark. If the purchaser’s title is an honest one, it is better for him that the double test be applied, in one, instead of two suits.”

This decision, and the reasoning by which it is supported, meet our hearty concurrence.

The exception was, therefore, properly overruled.

Another exception pleaded by the defendant, was, in substance, that the. acceptance of J. II. Scheen, the insolvent, surrender, and the participation in the proceedings thereunder by his creditors, and the election of the syndic by them, debarred the latter, as their representative, from objecting to the schedule of the insolvent, as to the debts included therein, and to claiming property as belonging to his estate, not placed in the schedule.

There is no force in this exception. The surrender upon the formal showing, made by the insolvent, -was accepted by the Judge for the benefit of the creditors. R. S. Sec. 1789. And the appointment of the syndic, like that of an assignee in bankruptcy, so far from committing the creditors to the correctness of the schedule, and precluding them or their representative from seeking to amend or change it, was but a preliminary step to the regulation and adjustment as between the insolvent and the creditors, and among the latter, inter sese, of all matters embraced in the surrender, and reported in, or pertaining to, the schedule submitted.

On tjie Merits.

I.

As to the act of elation enjpaiement, whose nullity is demanded.

It was passed on the 23d of November, 1878, and purports to transfer to Mrs. Seheen, the wife of the insolvent, a large part of his real estate, in the Parish of Red River, consisting of many tracts of land and town lots, in Coushatta. The consideration of this transfer, as declared in the acts, is one-half interest in the commercial partnership of Sclieen & Bradley, which had been carried on at Sparta, in Bienville Parish, and which it was-stated that Bradley, who ivas the father of Mrs. Seheen, had given her, and which was valued at $10,000. There was no inventory of the assets of this partnership accompanying the act, and no specific description of what stock or property, rights and credits, belonged to the partnership. Bradley, the alleged donor, was no party to the act, and apart from the bare statement of what constituted the consideration of the elation, there was no evidence of the gift, nor even of the existence of such partnership. Subsequently, Mrs. Seheen, in a suit for separation of property against her husband, valued this partnership interest at $15,000, which she claimed as a debt against him, but it was disallowed by the Judge, although not opposed, as the defendant therein made default, and no appeal was taken from such rejection of the claim; and in fact, the claim, bearing upon its face its fictitious character, seems to have been abandoned on the trial of the suit in question, and in this Court no claim whatever is made to the reality of this particular consideration, or of its constituting a charge of the wife against her husband, but the act in question is defended entirely on other grounds, which we shall hereafter refer to.

Article 1873, Civil Code, declares : “An obligation without a cause or with a false cause, can have no effect.”

In the case of Halsted vs. Noble, 1 A. 192, commenting on this Articles Eustis, C. J., uses this language :

But when an engagement or consideration, or, what is the same thing, when the cause for which it was contracted was false, the engagement is null, and the contract based on it also null, and cannot be enforced by an action.”

The word cause, as used in Art. 1873, referred to, and almost universally by civilians, is synonymous with consideration. In the present case, there cannot be a doubt that the cause or consideration, as set forth in the dation en paiement, was in fact no legal consideration, or was, in the language of the Article, a false cause. The act would, therefore, incur the penalty declared against it in the Article, and be without effect,” unless saved by a subsequent Article of the Code, 1900, which is cited and relied on by the defendant’s counsel, and which is in these words:

“ If the cause expressed in the consideration should be one that does not exist, yet the contract cannot be invalidated if the party can show the existence of a true and sufficient consideration.”

To give this Article the meaning contended for by the counsel, would make it completely unsay all that is declared by the previous Article, first quoted. That is, that although a contract sets forth a particular consideration, that notwithstanding the absence or the falsity of such consideration, that it can be maintained, if it can be proved that there existed between the parties another consideration, which might have been made the consideration of the contract, although such consideration had no connection whatever with that expressed, and was one which the parties never contemplated at the time.

We cannot accept this construction and assent to the proposition involved in it. We have closely considered the Articles and compared the two, and attentively examined all the authorities cited by counsel in support of their views, and others bearing on the point, and we find no conflict between the two Articles, and no difficulty in discovering the true meaning of the last cited to be, that where there is a. real consideration for a contract, and there must be such a consideration in all valid contracts, yet if that consideration is described in the act as one thing, but, in fact, is another thing, which the parties contemplated at the time, in connection with each other, and merely called the one for the other in the act, the act is valid, and to support it the consideration may be explained by evidence. For instance, a sale is declared to be made for cash, in fact it is not made for cash, hut for a debt owing by the vendor to the vendee, and which was of the same amount, and represented the cash expressed, or where it was for so many bales of cotton, or so many hogsheads of sugar, or other thing, which the parties valued at so much cash, and expressed such valuation in the deed; But it is needless to illustrate further. Our views are confirmed, as to this particular contract, by its very nature, and the legal requisites that are essential to a sale or giving in payment, and enter into their definition. To he valid, there must, in such contracts, be a thing, a price or consideration, and consent.' And there must be a consent, an aejgregatio inentiiem, both as to the thing- and the price or consideration. If the thing conveyed was that which both, or either of the parties was not thinking about, ot had not in their minds at the time, or the price or consideration stipulated, and which they had exclusively in contemplation at the time, had no existence or was false, then the contract, in either case, was void. And no other thing, afterwards thought of, and no other consideration which they might have made the price or cause of the contract, will ever re-habilitate it or cure the nullity.

The expression in the act, referred to by defendants’ counsel, as enlarging its scope, and as confirming their construction of it, to the effect that the elation, or transfer in question, was to satisfy, pro tanto, the paraphernal claims of the wife, so from having such a tendency, would more properly seem to confine the consideration of the act to that speci (really named, and exclude the idea of any other consideration; it was as much as to say, this settles the partnership interest of the wife, valued at $10,000, but leaves intact all other paraphernal claims which are not trenched upon by this transaction. For these reasons, and after a thorough and prolonged study of the question, and of all the law and the facts bearing on it, we are forced to conclude tjiat this act of giving in payment was null and void, and without effect as to the creditors of J. H. Scheen.

II.

In relation to the judgment of separation of property between Mrs. Scheen and her husband, the conclusion we have reached upon one feature of the case, bearing oii this branch of it, dispenses us from the necessity of discussing the voluminous evidence in the record, introduced with reference to the claims of the wife against her husband, and which the judgment recognizes. Granting that the evidence justified-the judgment, upon which we express no opinion, under our construction of the law applicable to the point in question, there was not that compliance with the legal requirements, touching' the execution of the judgment, that were essential to give it full operation and effect. It is not the judgment itself that produces the separation of property, but the fulfilment of the conditions that must follow its rendition.

What those conditions and requirements are, are sot forth in no doubtful terms by Article 2428 of the Civil Code, which reads as follows:

“The separation of property, although decreed by a court of justice, is null, if it has not been executed by the payment of the rights and claims of the wife, made to appear by an authentic act, as far as the estate of the husband can meet them, or at least by a bona fide non-interrupted suit to obtain them.”

This language is so plain and unambiguous, that it seems almost impossible that it should become a subject of doubt or of varied construction.

One of the earliest cases in which the Article received judicial construction was that of Bertie vs. Walker, sheriff, 1 R. 431. In the opinion of the Court, delivered in that case, we find the following language:

As relates, however, to the execution of the decree by j udicial proceedings, it may well be that an unusual delay or interruption would be fatal to the wife. The decree of separation, whatever may be its terms, does not render the parties separate in property; it entitles the wife to a separation, but the right vanishes, if not followed by a prompt and bona fide execution of the judgment. It is all important for the protection of the creditors of a married man, under a system of laws like ours, that these requisites of the Code should be rigorously insisted on. Decrees of separation are not unfrequeutly made a cloak to screen the property of the husband from the pursuit ■ of his creditors. The tardy attempt to execute the decree of separation, several months after the seizure, cannot affect the rights of the judgment creditors.”

In the case of Nachman vs. Leblanc, 28 A. 346, the doctrine of the case just cited was re-affirmed, and in that case the Court used the following emphatic language:

After quoting Article C. C. 2428, they proceed: For obvious reasons this bona fide non-interrupted suit to obtain payment and satisfaction of the wife’s j udgment is imperative, and nullity results from its non-observance. Here eleven months elapsed after the rendition of the plaintiff’s judgment against her liusbaud, before any move of any kind was made to enforce it. There is no reason why the dation enpaiement could not have been made at once, or at least in a briefer period of time than eleven months, we cannot but conclude with the Judge a quo that through her laches, in failing to comply strictly with the law requiring prompt and continuous effort to enforce the payment of her judgment, it had become null,” etc.

These decisions meet our approval, and are really nothing more than a reiteration of the plain words of the Code.

We have been referred to the cases of Cormier vs. Ryan, 10 A. 688, and of Bird vs. Duralde, sheriff, 23 A. 322, as offering a more liberal construction of the Article in question.

In the first case, the delay in issuing the execution was from the 14th of November to the 10th of March following. There the wife acquired certain property in her own name, after obtaining judgment, which was seized for the husband’s debts, and from reading the decision, it is plain that the Court was governed largely in its conclusion by the fact that is unquestionable, that the property in qirestion was acquired by the separate means of the wife.

In the other case cited, three executions issued; the first soon after the rendition of the judgment, a.nd were followed by seizures and sales of property, by which it appears that all the visible effects of the husband were exhausted, and the language of the Court, which the counsel construe as favorable to their position, had reference to the delay that followed the last execution.

If these decisions can be construed as sanctioning the departure claimed, from what we deem the plain and imperative requirements of the law, as determined and interpreted by the decisions we first cited, we cannot follow them. The privileges conferred oir married women by these and similar provisions of our law, were conferred for the beneficial purpose of protecting their just rights from the claims of the husband’s creditors, when misfortune and embarrassment has overtaken him. They are ample for the protection of their just rights, when fairly and honestly construed, but they have been, and can be made, the moans of inflicting great wrong upon the rights of others by a loose, perverted and vicious construction. These privileges, conferred by the provisions mentioned, are of an extraordinary nature, and under our jurisprudence, except married women from the operation of those laws which forbid the insolvent debtor from giving an unfair preference to, or upon his property, and they are in derogation of the rights of other creditors. The laws that entitle them to the enforcement and full functions of these privileges, should be strictly construed and not enlarged by implication.

But in this case, we are asked to go farther than the decisions referred to by counsel, or any other decisions of this Court have ever gone, in interpreting the requirements of the Article referred to, and sanctioning a less strict compliance with them than any of the cases present.

In the instant case, the judgment of separation was rendered on the 27th of May, 1879. The only execution that was ever attempted to be executed, or under which a seizure was made, or that was ever returned into court, was issued on the 8th of April, 1880, eleven months after-wards, and directed to the sheriff of Bienville Parish. It is true that in September previous, a similar writ had been issued and similarly directed, but no attempt was made to execute it, and it was lost or mislaid by the sheriff. This neglect was not because the debtor had no property subject to the writ, for, as shown by the return of the sheriff, on the second writ and otherwise, he had a large property in that Parish, (Bienville).

In the Parish of Bed Eiver, where the judgment was rendered and the debtor resided, no execution issued at all, although the property, rights and credits of the debtor in that Parish when the judgment was rendered, and after that, amounted to many thousand dollars, more than enough, according to the estimates of the debtor and others, to satisfy the judgment — property and assets, to which, or upon which the counsel contend with much earnestness, that Mrs. Scheen’s recorded judgment gave her superior rights over his creditors who had attached it.

Scheen made his surrender on the 8th May, 1880.

In the hice of this showing, it cannot be said, nor is it pretended that the judgment was ever executed by the payment of the rights and claims of the wife by an authentic act, as far as the estate of the husband can meet them.” And how can it be said that it was “ executed at least by a Iona fide, non-interrupted suit to obtain her rights or realize her claims.” We cannot say so. Tim judgment was null for noncompliance with these requirements. The law so declares it.

Whatever claims Mrs. Scheen may have against her husband, J. H. Scheen, are reserved to her, with the right to prosecute them in such mode and manner as the law may provide.

It is, therefore, ordered, adjudged and decreed,.that the judgment of the lower court is annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered, it is further ordered, adjudged and decreed, that the actof dation en paiemmt passed between Mrs. Nancy A. Bradley, wife of J. H. Scheen, and her said husband, on the 23d of November, 1878, and the judgment of separation of property between said parties, rendered on the 27th of May, 1879, attacked in this suit, be, and the same are hereby declared null and void, and that the property embraced in the said act of the 23d of November, 1878, bo decreed to belong to the estate of J. H. Scheen, insolvent; the costs of both Courts to be paid by defendants.

Mr. Justice Levy recuses himself, having been of counsel.

Dissenting Opinion.

Roché, J.

I dissent from the opinion of the majority in the disposition made of defendant’s exception to plaintiff’s petition joining two inconsistent pleas.

In my opinion, the revocatory action, which rests on the ground that the eontraet complained of is a real contract, followed by civil effects, is essentially distinct from, and inconsistent with, the “action en declaration de simulation,” which carries the idea that the act complained of is nothing, and could produce no effect.

I, therefore, think that the judgment of the lower court should have been reversed, for the purpose of maintaining defendant’s exception. Erwin vs. Bank of Kentucky, 5 A. 1; Brown vs. Brown, 30 A. 1966.

For these reasons, I take no part in the opinion and decree rendered in this case on the merits.


author: Poché, J.

text:
    No. 7256.
    E. Couder vs. Joseph Oteri et al.
    This is a suit to annul and cancel three notes secured by mortgage, which plaintiff alleges he signed without consideration, and through fear of bodily injury.
    “Where notes secured by mortgage are signed by plaintiff before a Notary, with full knowledge of the tenor and contents of both notes and mortgage, the burden of proof is on him to show that he signed through fear of personal violence.
    Plaintiff has not satisfactorily established such threats of violence, or the connection between the threats made, and the business transaction of signing said notes and mortgage several ' weeks after the alleged threats were made.
    APPEAL from the Fifth District Court for the Parish of Orleans. Rogers, J.

      G. L. Bright, Jf. B. JDubuisson, for Plaintiff aud Appellee.

      W. 8. Benedict, Jos. P. Hornor, Geo. H. Bravgltn, for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

The object of this suit is to annul and cancel three notes of $1000 each, secured by mortgage, executed on July 12th, 1876, and made payable one year after date, on the ground that said notes were made by plaintiff without consideration, aud through fear caused by threats, made by defendant Oteri, of killing plaintiff aud destroying his family.

The answer is a general denial, coupled with the averment that said notes were obtained from plaintiff for valuable consideration, aud without threats! or violence, with a demand in reconvention for judgment on the notes and mortgage. At the instance of plaintiff, the notes were sequestered at the Louisiana National Bank, where they had been deposited for collection by Oteri; and the bank is cited to appear.

Defendant appeals from a judgment maintaining plaintiff’s action, but rejecting his claim for damages, by reason of which plaintiff lias prayed for an amendment.

The record contains a volume of conflicting testimony, taking an immensely wide range, including scandalous and almost incredible stories of breach of trust, robbery, necromancy, deceitful friendship, conjugal infidelity and adultery, which appear absolutely marvelous on an issue presenting a single question of fact and of law.

Confining our efforts to the task of elucidating the facts which bear on the legal issues presented to our consideration, we have waded painfully through this mass of startling narratives, and have succeeded in bringing to judicial daylight the following as the only undisputed salient facts in the controversy:

For many years previous to these present troubles, Couder and Oteri bad been very close and intimate friends; Oteri having been an inmate of Conder’s house, where he was married, and continued to live several months after his marriage.

Couder has been for several years a merchant, doing business as a retail dealer in crockery ware, in good pecuniary circumstances, and with a fair standing in the mercantile community; married and having several children.

Oteri is a merchant, a member of a firm doing a yery large business as importers of tropical fruits, and commanding large capital and great resources. He is shown to be a good citizen and a peaceable man.

On the 12th of July, 1876, they met, by previous appointment, at a notary’s office in this city, where these notes and an act of mortgage, prepared in advance by the notary, were signed by Couder, after taking full knowledge of the tenor and contents of both the notes and of the act of mortgage. The evidence is conflicting on all other points.

It is conceded by all parties, as well as established in law and jurisprudence, that under such circumstances, the burden of proving the want of consideration, and of showing the other elements of nullity, is itaposed on plaintiff, Couder.

His counsel contend, and the District Judge held, that Couder had fulfilled the requirements of the law in this connection, at least sufficiently to shift on Oteri the burden of proving the validity of his contract, for which they rely on the following circumstances:

That some time previous to the date of this contract, Oteri, who had been absent from the State on business, discovered on his return that he had been robbed of §5,000, which he had entrusted for safe keeping to his wife. That, joined by plaintiff in his investigation, he had discovered that Mrs. Oteri liad been robbed of the money by a wily necromancer, who had gained her. confidence. After such discovery, the robber was arrested, and he returned, in property and other valuables, about $2,000 of his ill-gotten booty. Couder charges that from those circumstances, Oteri, who suspected that he, Couder, had influenced Mrs. Oteri in favor of the conjurer’, conceived the idea of holding him responsible for the xxnrecovered balance of his money, to-wit: three thousand dollars, and adding to this'unjust suspicion, the jealous belief that Coxxder had also seduced his wife from her conjugal fidelity; Oteri became very violent and abusive of his former friend, and pxxblicly threatened to kill him and to destroy his family, as Conder had destroyed his, Oteri’s family.

Coxxder then charges that Oteri, having, after such threats, insisted on a three thoxxsand dollar mortgage, he, actuated through fear of assas-. sination and great bodily harm, had consented to execute the contract which he now seeks to annul.

If the testimony of Couder, and of some of his witnesses, was entirely uncontradicted, and had satisfactorily established the truth of all these charges, we could not bring our minds to see therein, such violence and threats as the law contemplates as sufficient to vitiate and invalidate a contract, especially when it is evidenced by an authentic act.

Besides the testimony of Couder and of two women, whose testimony is so incredible as to have been disregarded by the District Judge, we find no testimony in the record showing that the violent language used, and the excited threats made, by Oteri against Couder, had any reference to, or connection with, the business transactions which culminated in the act of mortgage of July 12, 1876.

The record shows that those threats were made on the 29th of June, 1876, and satisfies us that they had reference to the suspicion of Oteri that Couder had been guilty of adultery with Mrs. Oteri, against whom he had filed a suit for divorce two days before, charging adultery between her and Couder, and in which suit, and for which charge, he subsequently obtained a judgment for divorce, which was rendered on March 26, 1877.

Under these, circumstances, Couder may be considered as very fortunate for having escaped with threats only.

Subsequent events show that even those threats, made by an outraged husband against his wife’s paramour, were not serious, and were never followed by the slightest attempt to put them into execution.

The record shows that on receiving information of Oteri’s threats, Couder, whom we concede not to be an example of personal or moral courage, at once called on the police authorities, and demanded their protection. Captain Malone, to whom the demand was made, being a mutual friend of the parties, quieted the fears of Couder, and offered his friendly interposition to effect a reconciliation between the two formerly close friends. And on the next evening, he and Oteri called in person at Couder’s house, where the two/oeshad a loug and private interview in Couder’s own sleeping apartment; after which, they rejoined Malone, with whom they took a glass of wine, parting as friends. As such they met at the notary’s office, where Couder went, unprotected by either the police or by trusted friends.

Under those circumstances, we would construe it a mockery of the serious provisions of our laws, which are intended to protect innocent parties from the burden of contracts forced upon them by the violence or the threats of the wrong-doer, if we should maintain plaintiff’s theory.

Plaintiff relies, as an element of threat, on a letter elated June 27th, 1876, written to him by Oteri’s counsel, informing him that the writer had been employed to settle with Gouder business of great importance and of a very unpleasant character, and urging him, by reason of the delicate nature of the case, to call on the attorney, with a view to save annoyance, publicity, and costs, and impressing Couder with the earnestness of his client in demanding speedy redress.

In our view of the case, this letter is destructive of plaintiff’s entire theory of violence and threats. It shows that Oteri was seeking to enforce his rights, or claim redress for real or imaginary wrongs, through and by legal process, and that Couder could, with perfect safety to himself and to his family, settle all his differences and troubles with Oteri, by calling on the latter’s counsel.

It places the case- squarely under the excex>tions mentioned in Art. 1856 of the Civil Code, which provides that violence, used as a legal constraint, or threats of what the party had the legal right to do, cannot invalidate a contract.

Whether Oteri intended to claim damages from Couder for the seduction of Mrs. Oteri, or to hold him responsible as an accomplice of the conjurer, he was using threats through his counsel, of legal proceedings which he had the right to use, which would cause Couder annoyance, by publicity, or other inconveniences; and this showing excludes the idea of.a resort to violence and assassination, either by himself, or by the instrumentality of others, as charged by plaintiff. See the case of Benner vs. Van Norden, 27 A. 477.

Oteri introduced testinrony to show that the consideration of the note was a loan of $3,000 made to Couder, at divers times, in sums of $1200, $800, $600 and $400; and on this point the record teems with an avalanche of conflicting testimony, which we have read and analyzed.

But under our views of the case, and with our clear conclusion that Couder has utterly failed to cast sufficient doubt on the legality and validity of the contract, so as to shift the burden of evidence on Oteri, we find it unnecessary to express an opinion on that branch of.the case. Believing that the degree of violence or the character of threats, which in law vitiates a contract, must be considered and weighed, in reference to men of ordinary composure and nerve, and not in the scales of imaginative alarmists, and being thoroughly satisfied from the evidence that Couder was not actuated in executing this contract, by any fear of bodily harm to himself, or much less to his family, we are constrained to differ with our learned brother of the District Court in the conclusion which he reached.

It is, therefore, ordered, that the judgment appealed from be annulled, avoided and reversed, and tliatplaiu tiff’s demand be rejected, and Ms action dismissed ; and it is further adjudged and decreed, that defendant, Oteri, recover judgment on bis reeonventional demand, on bis three notes of one thousand dollars each, with eight per cent, per annum interest from July 12, 1876, and with recognition of his mortgage under the Act of July 12, 1876, and that plaintiff pay all costs in both Courts.


author: Bermudez, C. J.

text:
    No. 7952.
    Henry Ellerman vs. Morgan’s Louisiana and Texas Railroad and Steamship Company.
    Tills is a suit for wharfage dues claimed hy plaintiff from defendants, in virtue of his wharf contract with the City of New Orleans.
    The contraot under which plaintiff sues, did not transfer to him the right of collecting dues for wharves or piers, not built or furnished by the City.
    As the wharf, for the use of which dues are olaimed, is the property of defendants, they cannot be made to pay duos for tbe same.
    Had the City herself brought this action, she could not have recovered, as she can claim compensation only when the wharves used are her own property.
    APPEAL from the Fourth District Court for the Parish of Orleans. Houston, J.

      F. JD. King, J. JB. Kiistis, for Plaintiff and Appellant:
    The ordinance regulating wharfage dues is constitutional. - 20 Wallace, 577; 5 Otto, 84; 10 Otto, 423: 5 Otto, 430.
    The banks of a river are public property^ 10 Peters, 662 ; C. C. 457 (448), 458 (446), 8C3 (854); 18 La. 234.
    The banks are out of commerce, and subject to the public servitude. 9 Martin, 656, 916; 6 Bob. 350; 15 An. 657; 11 An. 148 j 30' An. 190.
    The building of a private wharf and charging wharfage dues is a punishable offense. Act of 1808, re-enacted in Bevisod Statutes 1870, sec. 917, p. 180.

      Leovy á Kruftsehnitt9 for Defendants and Appellees :
    T.
    The Ordinance No. 2948, Ad. Series, and that of No. 3148, Ad. Series, (Ordiuanoo No. 3121, as amended) and the contract made under them, by their own terms, do not apply to wharves in tbe Fifth District of tbe City.
    Nor do the ordinances and contract give the lessee the right to collect from wharves not built by the City or lessee. The wharf lessee’s powerto build wharves, then collect dues, was by the contract itself, limited to the building of wharves where no wharves had before been constructed.
    n.
    The power to construot, maintain, and use their own whaves, was granted to defendants and their vendors by several Acts of tbe Louisiana legislature, and among others by the following; Acts 1653, p. 119 ; 1853, p. 328; 1855, p. 212; 1858, p. 196; 1877, p. 37.

      III.
    The grants by the legislature to the defendants and their vendors did not deprive the City of any vested right-, as contended, for two reasons:
    1. The grants were made before the Fifth District (Algiers) was made part of New Orleans, which was by Act of 1870, (Extra Session, No. 7, p. 30.)
    2. Because the legislature lias power to control the administration of the banks of the river and the landings. (The case of Ellerman vs. New Orleans, 30 An. 190, only decided that the legislature could not deprive the City of a wharf built by the City, without compensation. In that case the City owned both the wharf and the adjoining property.) C. C. 433, 455, 458; City of New Orleans vs Ellerman, decided by the United States Supremo Court in March 1832, (opinion annexed to this brief); 1 Black, 1; New Orleans vs N. 0., M. and Chattanooga R. R. Co., 27 La. 414,- 5 An. 661; 15 An. 577; 22 An. 545.
    IV.
    Defendants, as riparian owners, even without special grants, possessed the right to build wharves for their own use in front of their property. 31 An. p. 65; 6 An. 450; 5 An. 36 : 20 An. 308; C. C. 455, 457, 452, 863; New Orleans vs. Ellerman, United States Supreme Court, March, 1882; 1 Black, 23; 7 Wall. 272 ; 10 Wall. 502; 21 Wall. 389; 1 Eng. Law Reports, Appeal Cases. 652.
    V.
    And this is a right of which riparian proprietor's cannot be divested, except by legal proceedings, and for adequate compensation, noi without existence of necessity for public use. 5 Central Law Journal, 267; 10 Wall. 502; 18 La. 122; 20 An. 308; 27 An. 414; C. C. 863.
    VI.
    There is no material difference between the Civil Law and the English and American Common Law, as to the rights of ripaiian proprietors. 6 Martin, 244; 27 An. 414; 31. An. 65; C. C. 455, 457, 452; 2 Kent’s Com. § 428 (note); 2 Blackstone Com. 262; 13 Howard, 416, 426; 24 Howard, 41; 10 Peters, 662; 1 Black, 23; 7 Wall. 289; 10 Wall. 497, 506; 1 English Law Reports, Appeal Cases, 662.
    VII.
    The powers granted by special statutes to defendants was for a public purpose, to-wit: a railroad purpose. 27 Ac- 414; 11 An. 161; 3 Wall. 364; 5 Wall. 772; 15 Wall 667-8; 19 Wall. 661; Mills on Era, Domain, Sec. 14.
    Property devoted to a public use can be expropriated only in extreme cases. Mills on Em. Domain, Sec. 46.
    VIII.
    The Act of 1808 (Sec. 918, R. S.) did not prohibit the building of wharves by the riparian proprietor, nor a charge for the use of wharves; but a charge for the use of the bank. Besides, the Act is otherwise inapplicable to this case.
    IX.
    Any ordinance imposing a charge for the use of a wharf, not owned by the City, is in violation of the United States Constitution, and consequently void. So, also, is an ordinance imposing charges beyond a fair equivalent for the use of wharves owned by the City.
    Hence, Ordinances Nos. 2948, Ad. Series, and 3148, Ad. Series, invoked in this case, as applied to defendants, are null and void, because they contravene the following provisions of the United States Constitution i ‡
    1. Art. First-, Section 10, §3; No State shall, without the consent of Congress, levy any -duty on tonnage; and
    2. Art. First, Section 8, § 3: Congress shall have power * * “to regulate commerce with foreign nations, and among the several States and with the Indian tribes.” 27 An. 414; 31 An. 65, 6 Wall. 31; 19 Wall. 581; 20 Wall. 580; 94 U. S. S. C. 238, 248; 95 U. S. S. C. 580; 100 U. S. S. C, 423, 430.
    The power to regulate commerce is exclusively vested in Congress. 9 Wheaton, 186; 12 Wheaton, 414 ; 12 Peters, 72; 6 Wall. 31; 94 U. S. S. G. 246; 100 U. S. S. C. 434,

      X.
    The Ordinances Xos. 2948, Ad. Series, and 3148, Ad. Series, are null and void, because they violate Art. First, Section 9, §6, which declares that no preference shall bo given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels, bound to or from one State, be obliged to < nter, dear or pay duties in another. 94 TT. S. S. C. p. 243; 100 IT. S. S. C. p. 434.
    xr.
    The ordinances, so far as it is attempted to apply them to defendants in this case, are mill and void, because they impair the obligation of the contract by which, for and in consid* oration of constructing the road, the State granted thowhaif franchises, of which it is sought to deprive defendants.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff seeks to recover from the defendants $74,413.50, for the use of a wharf in the Fifth District of the City, on the right bank of the river, during a stated period. He rests his claim on á contract of lease from the City of New Orleans, entered into on the 29th of June, 1875, by which lie claims to have been subrogated to all the rights of the corporation to collect all wharfage dues within corporate limits.

The City intervened and joined the plaintiff.

The defendants resist the demand, on four different grounds :

1. The ordinances for the sale of the lease, and the lease, were not intended to apply to said District; that they did not, and could not refer to wharves not built or repaired by the City or the contractor.

2. The right to build and use wharves was conceded'them and their vendors, by the State, and was exercised during twenty-five years. The concession was a consideration, or inducement for the building of a railroad, and constitutes a contract, the obligation of which caunot be impaired.

3. They and their authors, independent of grants, had, and have, as riparian owners, the right to build and use wharves in front of their property, and even to charge for the use of them, and that they cannot be divested thereof, unless after legal expropriation and adequate compensation paid.

4. The ordinances authorizing the collection of the dues claimed, are, in general, and specially as to the defendants, if they refer to them, null and void, because they violate the contract with the State, create a tonnage and discriminating duty, thus regulating commerce.

From a judgment against him, the plaintiff has appealed.

It is claimed that, in consequence of the intervention, the suit must be dealt with as though instituted by the City. We do not think so.

, The City cannot, by lier judicial proceeding, enlarge in any manner, so as to affect third persons, the substance of a contract entered into by her with the defendants, after fulfilment of the formalities required by law provided for such purposes. The action is for the recovery of dues, to which plaintiff claims to he entitled, under a transfer and subrogation from the City. The plaintiff can exercise those rights only, which it was proposed to transfer to him, and which could have been and were actually conveyed to him. He can exex-cise xxoxie other. The City cannot, by her intervention, whatever it be, amplify the averments or prayer of the plaintiff’s petition.

It is quite difficult to discern what interest the City liad in this litigation. If she transferi-ed to the plaintiff, among others, tiie right of collecting the wharf dxxes claimed, wliat is it to her, that he recovers or fails, in the absence of any warranty on her part, of the existence of such right and of its lucrativeness? If, on the other hand, she did not convey it, what benefit can she derive by admitting the transfer, in a judicial proceeding in which she lias nothing to make? It would seem that the City should be perfectly indifferent to plaintiff’s success or defeat.

We should deal with the action as brought by the plaintiff alone, whose pretensions can not be fortified by any say so of the corporation. It is apparent that, if it be true that the City could not recover, had she brought the suit, the plaintiff necessarily is debarred from his claim, rice the City, whose rights only he could champion.

However, conceding- arguendo the theory upon which the action rests, that under the legislation of the State, the City has the exclusive right to build wharves within her limits, and that this privilege is a vested property based on the consideration that she is burthened with the responsibility of furnishing to the vast shipping visiting this port, suitable accomodations, it does not, in the least, follow that she woxxld have the right to collect wharfage dues, from one, who, being a ripax-iun owner, has built and renewed at his exclusive expense, without axiy opposition, ixx the Fifth District of the City, oxx the right bank of the river, and uses, for his purposes, a wharf iu front of his property.

The City may, on account, of the existence of the exclusive right and privilege lodged in her of building wharves within her limits, prevent the construction of such by individuals, and possibly, even after the erection of the same, prevent the further xxse thereof by expropriation, on compensation ; bixt this is not a sxxit of that character. Viewed in the xxxost favorable light, from plaintiff’s own standpoint, it could only be treated as an action by the City to recover from the defendants for the use of their own property.

The inconsistency of the position under the theory is apparent. It demonstrates the fallacy of the proposition, and proves coxxxpletely ¡destructive of the position assumed under it. How, indeed, could the City, with any semblance of plausibility, in the same breath, aver her exclusive right to build wharves and waive that privilege, by ratifying- an infraction of it, in claiming from the infringer dues, for the use of a construction put up by him in derogation of the right? It would seem that either the City can or she cannot permit an encroachment. If she can, and she does it, she ratifies; if she cannot, her ratification would be a nullity. But it is clear that because the City has the exclusive privilege, it is a non seguittvr to say that, she is bound to exercise it, for that would be throwing her and plaintiff out of Court, on the latter’s own theory, that this case can be considered as instituted by the City herself directly.

But the fact is, that the suit was not brought by the City. It was instituted by the plaintiff, as subrogee, under a contract, authorized by and resting upon municipal ordinances, which expressly form part of the contract.

The 6th Section of Ordinance 2198, A. S., which refers to the charges mentioned previously in it, and which the plaintiff claims the right to collect, is exímese:

That the charges mentioned, * * * shall be exigible only from such * * * vessels, as shall land or moor at the wharves and piers furnished by the Gity of New Orleans.”

Section 8 of the same Ordinance, provides: that the purchaser takes such rights as she (the City) possesses, and the said revenues, subject to all the rights now held by other persons by way of lease, privilege, contract, or by law.”

Section 12 of Ordinance 3121, A. S., after speaking of the 1st, 2d, 3d, and 4th Districts of the City, declares : -

“But the said transferree shall not been titled to receive any revenue from vessels landing in the other districts, until after wharves shall have been built and the transferree shall have complied with the requirements of this Ordinance, in relation to them.”

Section 13 is lengthy, but is merely to the effect, that the lessee will not be bound to build wharves outside of the four districts, and that, if new wharves are required, in the 5th District, they may be built at the request of the City Council, or of the party desiring them.

The defendants claim that these ordinances, and the contract made under them, by .their own terms, do not apply to the 5th District; that the power to construct, maintain and use their own wharves, was granted to them and their authors by several Acts of the Legislature in 1853, 1855, 1858, 1877, which did not deprive the City of any vested right, because conferred, before the 5th District became part of the City, which was in 1870, and besides, because the legislature has power to control the administration of the banks of the river and the landings; that, independent of such grants, as riparian owners, they have the right to build wharves, for their own purposes, in front of their property, which cannot be taken away after being exercised, unless after expropriation upon adequate compensation, and for public utility. They set xrp further defenses attacking the constitutionality of the ordinances, and necessarily, the validity of the contract relied upon by the plaintiff, which defenses, from the view which we have taken of the case, we. think unnecessary to particularize.

The evidence shows, that in 1872, Mr. Morgan, an author of defendants, bought in the Fifth District, 'on the right bank of the river, a tract of laud having a front of 475 feet, witli all riparian rights thereto belonging, and that, at that date, there existed in front of the property a private wharf which had been in use for perhaps twenty-five years, and which was in a condition necessitating to bo replaced; that in 1873, Mr. Morgan rebuilt the wharf, which became an adjunct to the railroad which he owned, at a cost approaching $25,000, exclusive of certain improvements costing as much.

It is for the use of this wharf by the defendants, who own it, that the plaintiff claims wharfage dues for the stated sum.

It is established conclusively, and not denied, that neither the City, nor tlie plaintiff, ever expended one dollar on this wharf, either for building or for repairing it.

In the case of Camion vs. New Orleans, 20 Wall. 577, from this Court, the U. S. Supreme. Court took occasion to say:

‘‘ It is a doctrine too well settled, and a practice too common and too essential to the interests of commerce and navigation, to admit of a doubt, that, for the use of such structures, erected by individual enterprise, and everywhere recognized as private property, a reasonable compensation can be exacted. And it may be safely admitted, also, that it is within the power of the State to regulate this compensation, so as to prevent extortion, a power which is often very properly delegated to local municipal authority.”

Nor do we see any reason why, when a city or other municipality is the owner of such structures, built by its own money, to assist vessels landing witliin the limits, in the pursuit of their business, tlie City should not bo allowed to exact and receive this compensation, as well as individuals.

In the case of the New Orleans, Mobile & Texas Railroad Company against Henry Ellerman, decided in March last, by that high tribunal, it was distinctly held, referring to the last case, that the sole ground of the City of New Orleans to collect wharfage at all, is that it is a reasonable compensation, which it is allowed by law to charge, for the actual use of structures provided at its expense, for the convenience of vessels engaged in the navigation of the Mississippi river.

Referring to the case of New Orleans vs. Wilmot, 31 A. 55, the same Court said, that it is true, as was there decided, that the City cannot forbid any water craft from using the banks of the navigable waters of the State for purpose of navigation and commerce, and cannot com7 pel them to pay to it wharfage, except as compensation for the use of wharves of which it is the proprietor.

The Court goes on to say : The rights of the City, in respect to this controversy, would seem then to be reduced to that of building levees and wharves on the banks of the river, within its corporate limits, for public utility, with the exceptions established by the paramount law, and collecting reasonable wharfage for the actual use of such structures.

The case in which the Court thus spoke, is one to which the present plaintiff was a party, seeking to prevent the Railroad Company from using its wharf on the left bank of the river, as a public wharf, beyond the limits of such use, as defined by a Joint Resolution of the General Assembly of this State, of March 6th, 1869, excluding the City from the right of building a wharf on the land of the Company., After considering the question, the Court concluded, saying :

The only injury of -which he (Ellerman) can be heard in a judicial tribunal to complain, is the invasion of some legal or equitable right. If he asserts that the competition of the Railroad Compauy damages him, the answer is that it does not abridge such right. If ho alleges that the Railroad Company is acting beyond the warrant of the law, the answer is that a violation of its charter does not, of itself, injuriously affect any of his rights. The Company is not shown to owe him any duty which it has not performed. After reference to a number of authorities, the Court reversed the decree of the Circuit Court.

We are told by the plaintiff’s distinguished counsel, that if the Supreme Court of the United States, in that recent decision, presents views in conflict with those expressed in 30 A. 190, upon a questim* involving local statute law and jurisprudence, the authority of that tribunal is more than questionable.

We have considered the State case, which is to the effect that the City cannot lawfully .be required to permit the use of her wharves without compensation, on the ground.that they are property. It has received due consideration from the U. S. Supreme Court, which has accorded to it the whole merit which it deserves, and it remains in a condition of perfect integrity.

The case presently before this Court is not one in which the City seeks to prevent the defendants from using their wharf in any manner, or to expropriate it and enjoy it for her purposes.

When such a case will be presented, it will be time enough to determine the important issues raised by the defendants heretofore indicated.

In the actual controversy, we are called upon merely to decide whether the plaintiff, under a contract with the City, and a subrogation to her right to collect wharfage dues, is entitled to recover such from the defendants for the use of a wharf built by their authors, which is their property, in front of land which they own fronting the river, with all the rights of riparian proprietors, and towards the building of which neither the City nor the plaintiff has ever contributed a cent, and in and to which neither claim any right of ownership or of enjoyment.

It clearly results from the evidence, that it was not intended by the contract relied upon, that the plaintiff should have the right of collecting wharfage dues, unless where the wharves and piers were furnished by the City; that the wharf in question was not thus furnished by the City, and is the property of the defendants, and we conclude that even had it been contemplated by the contract otherwise, as the City could not have recovered from the defendant for the use of their own wharf, the plaintiff, who only claims under a transfer and subrogation from her, must, necessarily, likewise fail in his action.

We find no error in the judgment appealed from, which is affirmed, with costs.

Levy, J., absent.


text:
    No. 8509.
    H. A. Wederstrandt et al vs. Julius Freyhan.
    In a suit brought to annul a tax sale, the tax collector, having no interest, is not a necessary party.
    Plaintiff being unable to determine the amount of the taxes due, through loss of the assessment rolls, is relieved from making a tender, as a condition precedent to an action for the recovery of the property.
    Plea of prescription of three years no har to an action to annul a tax sale for direct violation of prohibitory law. It is a har only to actions for informal or relative nullities.
    Where tax sale was made in direct violation of a prohibitory law, the sale is an absolute nullity.
    This being a case involving the interpretation of a statute, we consider the purchaser, though the sale he a nullity, in good faith
    This Court will follow the wise rule of staA'e decisis, in regard to two decisions of this Court interpreting Act 7, Extra Session, 1875, though probably erroneous.
    APPEAL from the Fifteenth Judicial District Court, Parish of West Feliciana. Toist, J.

      X. X. Howell, for Plaintiffs and Appellants:
    In tax sales absolutely null, the tax collector (having no interest) is not a necessary party j a precedent tender is not required, and the prescription of one or three years does not apply.

      Section 3 of -Act No. 7, Extra Session, 1875, held to apply to taxes throughout the State, (30 A. 871; 32 A. 2^8) and is not unconstitutional. "Where there is doubt, the unconstitutionality of a law is not declared.
    The purchaser at a tax sale absolutely null is in had faith, and must pay rent and all damages less the actual taxes paid without costa., If in good faith, he is entitled only to the value, at date of judgment, of the improvements made hy him prior to the suit, less the value of mateiials used and propeit.y destroyed hy him.

      W. W. Lealce, 'for Defendant and Appellant:
    In actions to annul tax sales, the tax collector is a necessary party, and should be cited. 29 A. 115.
    The alleged owner of propeity which has been sold at a tax sale cannot maintain an action for its recovery, until he has tendered to tlie purchaser at the sale the price paid hy tho latter. 'This is a prerequisite. 30 A 310; ib. 1232.
    Actions to invalidate the titles to any property purchased at tax sales, under or hy virtue of any law of this State, shall he prescribed hy a lapse of three years from the date of such sale (Section 5, Act 105, of 1874; 33 A. 291) and this prescription runs against minors. 24 A. 211.
    Section 3, Aot 7 of 1875, Extra Session, does not apply throughout tho State; applies only to lands overflowed in 1874. If otherwise, it is unconstitutional,, tho object not being expressed in tho title. Constitution 18C8, Ait. 314; 1679, Art. 29.
    The purchaser at tax sale has tho right to demand the value of all improvements he has made on the lands, and cannot he forced to remove them. Act 100 of 1873; R. C. C. 3453; 15 A. 698; 18 A. 407.
   Tlie opinion of tlie Court was delivered by

Poché, J.

Plaintiffs seek to annul a tax sale of tboir property, made on tlie 25tb of October, 1875, on the ground that the sale was made in violation of the law as contained in Section 3 of Act No. 7 of tlie Extra Session of 1875.

Defendant excepted, and urged:

1. Want of proper parties, because tlie tax collector was not made a party.

2. Want of tender of the price paid by him at the tax sale.

3. Tlie plea of prescription of three years.

His exception was properly overruled by the District Judge.

X.. Tlie tax collector is not a necessary party to such an action, as he has no personal interest in a judgment involving the title to property, which either belongs to plaintiffs, by reason of the alleged nullity of tlie sale, or is the property of the defendant under bis purchase. The State itself, to whom the proceeds of the sale were paid, could not, in such a proceeding, be compelled to reimburse the purchase price to the defendant, in case his sale should be annulled, and could not, therefore, be made a party, even with her consent. (30 A. 871). A fortiori her agent in the proceeding has no possible interest in the controversy. Hickman vs. Dawson, 33 A. 438.

2. In their petition plaintiffs allege their inability to tender the price paid by defendant, for the reason of the loss of the assessment rolls for the years for the taxes of which the tax sale was made, and for the further reason that the taxes charged covered another portion of the property in controversy, which had been previously sold to the defendant. Under these allegations plaintiffs were exonerated from the obligation to make a previous tender of the purchase price as a condition precedent to their recovery of the property. 32 A. 924, Guidry vs. Broussard; 32 A. 1290, Miller vs. Montagne et al.; Stafford vs. Twitchell, 33 A. 520.

3. The plea of prescription of three years cannot defeat an action for the nullity of a tax sale, alleged to have been made in direct violation of a prohibitory law. We have held that such plea could be a bar to actions for informal or relative nullities only. Lague vs. Boagni, 32 A. 912.

For answer, the defendant pleaded the general issue, followed by a special defense, averring good faith in his purchase, which he made at the special request of the tutrix, plaintiff herein, to whom he subsequently paid some $450, so as to perfect his title, and he prayed that in case the sale be declared null, that he be allowed to remain in possession of the property, until reimbursed $176.99, amount of taxes, with 50 per ceDt. on that amount, the further sum of eight hundred dollars paid by him for improvements, and the additional sum of $450, amount paid to plaintiffs through their tutrix.

The judgment of the lower court decreed the nullity of the sale, and decreeing the defendant a purchaser in good faith, allowed him the sum of one hundred and fifty-nine dollars and forty-four cents, for taxes paid by him, and ordered him to remove the buildings and improvements placed by him on the premises on or before the first of April, 1882, with the right of retaining possession until reimbursed.

Both parties have appealed.

The test of the validity of the sale is found in the proper interpretation of Act No. 7 of 1875, which has been judicially expounded by our immediate predecessors, in two decisions, 30 A. 871; 32 A. 228; and construed to have provided a suspension of tax sales in all cases, from the date of its enactment to the first of November of that year.

If we felt called upon to give our own interpretation of the remedy intended by the legislature in enacting this remedial statute, we would, in all probability,,reach a different conclusion from that announced in the two cases mentioned; but as the interpretation adopted by the Court was twice, and very distinctly announced in important cases, and after careful examination and mature deliberation, we consider that the principle announced has now become a rule of property in our jurisprudence, and wemust yield to the inflexible but wise rule of stare decisis, which operates in mitigation of the uncertain and oft erring judgment of the human mind, as a statute of repose or a harbor of safety.

The argument that the interpretation of our predecessors, in extending to all delinquent taxpayers throughout the State a relief apparently intended only for unfortunate owners of land which liad been overflowed in 1874, exposes the Section 3 of the Act to the charge of unconstitutionality, because the object attributed to it was not expressed in the title of the Act, is met by a comparison of the cases, which the relief contemplated by the Section was intended to meet, with the title of the Act.

The title of an Act “to relieve delinquent taxpayers from the payment of penalties in certain cases,” is sufficiently broad to include the cases in which delinquent taxpayers would pay the principal or the amount of their taxes, on or before the first of November, 1875, to whom, in such cases, all interests and penalties would be remitted, as provided in the Section under consideration.

We, therefore, conclude that the sale of plaintiffs’ property was an absolute nullity.

But under the peculiar circumstances of this case, turning upon the propor interpretation of a Statute of at least very doubtful import, we consider that the purchaser was in legal good faith, and thus entitled to be reimbursed for the value of his improvements and the amount of his purchase price, including the costs and penalties, as well as the amount of the tax. As it appears from the record that plaintiffs made no effort to settle their taxes on or before the first of November, 1875, on the property, the ownership of which they claim not to have been divested by the tax sale, which was null ab initio, they are not entitled to the benefits conferred by the Act of 1875, and are bound to defendant for all costs and penalties to which the property became liable under the very legislation invoked by them.

From the averment of defendant, touching the sum of four hundred and fifty dollars, which he advanced to the tutrix, who has no personal right or interest in the property, and which, therefore, she could not dispose of or alienate in any mannor, it is clear that defendant cannot be allowed to claim or recover that sum from the owners of the prop-' erty, in this proceeding.

In attempting to adjust the claim of plaintiffs for rents and revenues accrued since the filing of their suit, as well as for materials of theirs used by defendant, and for shrubbery, and the counter-claim of defendant for the value of his improvements, we are, as is usual in such cases, met with a mass of conflicting testimony, which we have taken great trouble to scrutinize, and from which we have drawn the following conclusions:

That plaintiffs can recover nothing for the shrubbery alleged tp have been removed from the property by defendant; that the materials used out of their old house by defendant, were worth $50; and that the rent of the property from February 24, 1880, is worth $50 a year, and that the value of the improvements of defendant is $600; the taxes and costs paid as purchase price amounted to $176.99; but that he is not entitled to fifty per cent, thereon, allowed by the lower court, and that the taxes paid by him since the sale amount to $27.20.

It is, therefore, ordered, that the judgment, of the lower court be amended in the following particulars:

1. Iu allowing $159.44 to defendant, in reimbursement of taxes paid by him, which amount is increased to $176.99 for taxes, penalties and costs paid at the sale, and to the additional sum of $27.20 for taxes paid since the sale. • ■

2. In ordering defendantto remove his buildingsand improvements, for which we decree him entitled to recover $600, subject to a credit of $50 for plaintiffs’ materials used, and to the annual rent of $50, from February 24, 1880, to date of this judgment.

3. In allowing to defendant fifty per cent, on the amount of taxes paid by him, which per centum is hereby refused.

' And it is ordered, that in all other respects said judgment be affirmed, costs of appeal to be paid by plaintiffs.

Rehearing refused.