author: Watkins, J. Fenner, J.

text:
    No. 10,113.
    The State ex rel. Barber Asphalt Paving Company vs. City of New Orleans et als.
    Section 1 of Act ó of the Extra Session of the Legislature of 1870 deprives the courts of this State of jurisdiction or authority to grant a writ of peremptory mandamus against the Comptroller or Treasurer of the city of New Orleans, the object of which, is to enforce the payment of money claimed of the said city.
    Act 109 of 1886 directs the performance of certain duties by the City Council alone, and imposes on the Comptroller and Treasurer the performance of none. Its provisions do-not appertain to the executive department of the city government, but same are exclusively confirmed to the legislative department thereof.
    Mandamus doe9 not lie for the enforcement of that act.
    Eormer opinion did not hold that Act Ho. 5 of 1870 barred the writ of mandamus as a remedy to enforce performance of specific duties imposed by subsequent legislation on the city of New Orleans, its Council, or anv of its officers; but that the law invoiced by rela+or did not impose the specific duties for the performance of which the mandamus-was asked. •
    Held: the word “ revenues/' as used in Act 109 of 1886. necessarily moans the budget estimate of revenues, because otherwise it would be a mathematical impossibility to frame the budget in accordance with the requirements of the city charter.
    A PPEAL from the Civil Distiict. Court for the Parish of Orleans. /~\ Riglitor, J. --

      Leovy <£ Blair for Relator and Appellee.

      W. II. Rogers, City Attorney, and Nieliolls d¿ Carroll, for Defendants and Appellants.
   The opinion of the Court was delivered by

Watkins, J.

The relator seeks, by mandamus, to compel compliance with the provisions of Act 109 of 1886. To coerce the City Comptroller to warrant on the City Treasurer in payment of the sum of $44,453 27, alleged to be due it for certain work done, under a ■contract with the city, in paving certain streets with sheet asphalt; to compel the City Treasurer to pay said warrant out of the 1887 revenue, and to require the City Council, Comptroller and Treasurer to reserve and set apart 20 per cent of the revenues and receipts of the city for the year 1887, “ i. e., twenty cents out of every one hundred cents that are collected and paid into the treasury o,f the city, and to confine appropriations for the government of the city, for all other purposes, except for permanent public improvements, to 80 per -cent of the actually collected revenues of the'said city for the year 1887” and, further, to require the said Comptroller to warrant on and the said Treasurer to pay said warrants, in th.eir favor, out of the fund thus created and held in reserve; and, further, to require each one and all of said persons and officers to set aside for the reserve fund •of 1887 all rights, sums, interest and credits received from miscellaneous or contingent sources, as provided in the said act.”

The relator, also, seeks to restrain the city and said officers, by injunction, from paying out, for any other purpose than for permanent public improvements, more than 80 per cent of the revenues of the said city for the year J887, as they are collected and paid into the •city treasury, and said Comptroller from warranting on, and said Treasurer from paying out, the said reserve fund for any other purpose than for permanent public improvements.

To this petition the city of New Orleans tendéis the following peremptory exceptions, viz:

1. That relator’s petition discloses no cause of action.

2. That such remedy and relief as are herein sought are not warranted by law.

3. That the writ of injunction cannot issue in the premises, “ as the •proceedings are to compel the performance of a ministerial duty, and ■the injunction seeks to compel the performance of duties which are mandatory.”

Reserving the benefit of these exceptions, the city, for answer, pleads the general issue, and specially denies the power of the court ■“ to regulate the mode and manner of distributing the alimony allowed by law, which is fixed at the rate of ten mills upon the dollar of the revenues derived from taxation and other sources necessary for the government of said city, and which are fixed by law. That the relief «ought by plaintiff would operate a complete cessation of the corporate business and make it impossible for the government to exist.”

She alleges full compliance with all the laws of the State, and avers that she has provided for a reserve fund and set the same aside, as under the law she was bound to do; but that said reserve has not yet beenrealised, and there is no money with which to pay relator’s claim.

On these issues and pleadings the- cause went to trial, and there was a judgment making the mandamus peremptory as to all parties and the injunction perpetual; and from that decree the city has appealed.

We will first address our attentions to the respondent’s exceptions :

There appears to be no dispute about the facts of this case. The relator made certain permanent public improvements for the city in the way of pavements on certain streets, consisting of sheet asphalt-This work was done in pursuance of a contract with the city, under-the paving laws of the State, and in which the city agreed to pay a portion of the cost of construction. The amount of the lelator’s claim is not denied, and there is no complaint of the work done by the-relator in pursuance of this contract. There is no claim made that any part of the relator’s demand has been paid. The. city’s answer-admits the force of the law, the provisions of which are sought to be-enforced against her, but avers full compliance therewith, and “ all laws of the State.”’

Under this state of facts has relator disclosed a cause of action.

Section 1 of Act No. 5 of the Extra Session of the Legislature of' 1870 provides that “ no court within the State shall have authority or-jurisdiction to allow, hear, entertain or enforce any summary process, or proceeding, or writ, or order of mandamus, * * either agains^ the Comptroller, * * the object of which shall be, either directly or indirpctly, to obtain or compel said Comptroller * * to issue and deliver any order or warrants for payment of money, or against the Treasurer or any officer * * charged with the disbursement of the moneys of the city of New Orleans, the object of which shall be, either directly or indirectly, to enforce the payment of money claimed to be due from the city of New Orleans to any person, persons or corporations j but all actions or proceedings for the recovery of any sum of money claimed to be owing by tiie city of New Orleans shall be in the ordinary form, of action, instituted against the city of New Orleans as a corporation, and not against any branch, departmeiit or officer thereof, and shall, in all respects, be conducted in the same- mañuelas other ordinary actions

This statute has received repeated interpretations by this Court and its predecessors, and it is still a law in force. The question, is,. therefore, in what way is the relator’s case taken out of its operation and effect? Or what plain, ministerial duty imposed by the act has the respondent city failed or refused to perform? Or what plain, ministerial duty is there invoked outside of and not inconsistent with that act which said respondent failed to perform?

The relator has not obtained a judgment against the city on its demands, and consequently is not entitled to the Comptroller’s warrant on the Treasurer “without any special appropriation of money therefor by the Common Council,” as provided in section 2 of said quoted act, and for the same reason its claim could not have been designated in the annual budget for the payment of judgments against the city,” as indicated in section three of that act.

The objects of this proceeding are three-fold, viz :

1. To compel the City Council, Comptroller and Treasurer to reserve and set apart 20 per cent of the revenues and receipts of the city for the year 1887 as a reserve fund for public improvements.

2. To compel the Comptroller to warrant on the Treasurer for the amount of their demand, said warrant to be made payable out of said reserve fund.

3. To compel tlie Treasurer to pay said warrant out of said reserve fund when ii is presented. The duty, in the performance of which the said respondent city is alleged to be in default, is one not embraced in or covered by the quoted act, but is placed by the relator under Act 109 of 1886.

It is necessary here to examine this act and ascertain its scope and object, in order to determine the character of the duties, if any, that are imposed upon the respondents, and, further, to determine whether performance can be enforced by mandamus, as claimed by the relator.

The act purports to be an amendment of Sec. 66 of Act 20 of 1882, it being the city charter, and repeals a former amendment thereof, it being Act 88 of 1884. All of these acts appertain exclusively to the appropriation for, and the disbursement of, the respondent city’s revenues.

Section 66 of Act 20 of 1882 provides that the Council shall not, under any pretext whatever, appropriate any funds for the government of the corporation to the full extent of the estimated revenues, but shall reserve twenty-five per cent of said estimated- revenues, which reserve, and all sums, rights, interests and credits received from miscellaneous or contingent sources, shall be appropriated by the Council for the purpose of public improvement, as herein provided for.”

Act 88 of 1884 consists of a single section, and purports to be an amendment of Section 66 of Act 20 of .1882, last above quoted ; but tlie amendment consists solely in reducing the amount to be reserved from 25 per cent to 10 per cent of the estimated revenues.

Act 109 of 1886 consists, also, of a single section, and repeals Act 88 of 1884, and amends Section 66 of Act 20 of 1882. This amendment consists in these alterations only, viz:

1. The elimination of the word “ estimated.”

2. The reduction of 25 per cent to 20 per cent.

3. The interpolation of the word “permanent” before “public improvement.”

It is worthy of special notice that each one of the acts quoted employs the same language in directing the performance of the duty that is therein imposed, viz : “ the City Council shall not, under any pretext whatever, appropriate any funds,” etc. Neither one of those acts, in any manner, appertains to the executive department of the city government. Sec. 12, et seep, Act 20 of 1882:

“ The executive power of the city of New Orleans shall be vested in one mayor, one treasurer, one comptroller, one commissioner of public works, and one commissioner of police and public buildings.” Tbid.
The comptroller shall have a genera] superintendence of the fiscal affairs of the corporation.
^ * # * * J. .f iv -,
“The comptroller shall not warrant upon the treasurer for the payment of any bill, requisition, claim, pay-roll or demand of auy nature -whatever, whether the same aiise out of contracts or otherwise, except such bill, requisition, claim, pay-roll or demand is presented to said comptroller with the signature of the chairman of the finance committee of the council indorsed thereon in approval of the same,” etc. Sec. 21.

The duty of the treasurer is to receive and safely keep all moneys, assets, etc., belonging to the city, and to pay money on the warrants of the comptroller or other officer designated to act in his place, “ and in no case shall the treasurer pay any claim whatever against the city except in the manner set forth.” Sec. 22.

“ The legislative poiver of said corporation shall be vested in a council composed of thirty members,” etc. Sec. 2. .

It is obvious, from a simple inspection of the acts cited and the one relied upon by the relator’s counsel, that no duty is imposed upon either the Comptroller or Treasurer of the city, and that the duty that is imposed upon the legislative department of the city government is a limitation upon its power to malee appropriations of the revenues of the city as well as a requirement that it shall reserve 20 per cent “ for the purpose of permanent public improvements.”

Now if the construction of the law contended for by relator’s counsel be conceded to be correct, there is an insuperable difficulty in the way of the remedy he seeks, and that is the absence of any provision appertaining to the fiscal affairs of the city, and the presence only of such provisions as relate to the “ revenue and expenses ” of the city government, and which are under the control of the City Council exclusively. Relator does not.seek to control or supervise the manner in which the City Couucil has created the annual budget of expenses for the year 1887. It is not alleged that it is entitled to have the Council levy a special tax out of the proceeds of which its claim is to be paid by preference. It is not claimed that the rate of taxation should be increased in order that relator’s claim he satisfied Reduced to a last analysis, the contention of the relator is that the duty of the City Council is, under the law, to see to it that the Comptroller shall place in the reserve fund 20 per cent of the gross revenues of the city as they are collected, and warrant on said fund in its favor for the full amount of its demand.

We fail to discover in the law any warrant for this contention. Either the law is defective in not more specifically directing the mode in which this fund was to be created and reserved for permanent public improvements” by the City Council, or they have been derelict in the enforcement of it by their failure to pass appropriate ordinances requiring the Comptroller to set apart and reserve the 20 per cent in such a manner as to make it available to public improvement creditors.

The one can be remedied by the Legislature and the other by the City Council. Each involves additional legislation. It is not our province to enlarge laws of the State or city so as to meet the exigencies of a particular cause, however meritorious. In view of the provisions of Act 5 of 1870, and the decisions of this Court interpreting it, we conclude that plaintiff’s petition discloses no cause of action. 30 Ann. 78, 129, 710; 34 Ann. 875, State ex rel. Fernandez vs. Judge; 35 Ann. 781, State ex rel. Klein & Co. vs. City; 37 Ann. 13, State ex rel. Marchand vs. New Orleans.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is further ordered, adjudged and decreed that the preliminary writ of mandamus be set aside, the injunction dissolved, and the relator’s demands rejected, at his cost in both courts.

On Application nor Rehearing.

Fenner, J.

The brief for rehearing entirely misconstrues our original opinion in assuming that we heid that Act No. 5 of 1870 operates as a bar to judicial enforcement, by mandamus and other appropriate remedies, of the performance of specific duties imposed by subsequent legislation upon the city of New Orleans, its Common' Council, or any of its officers. The. contrary has been too frequently affirmed by this Court to be longer a subject of controversy. State ex rel. Canal Co. vs. Pilsbury, 30 Ann. 129, 708; State ex rel. De Leon vs. City, 34 Ann. 480; State ex rel. Klein vs. City, 35 Ann. 78-1; State ex rel. Marchand vs. City, 37 Ann. 19; State ex rel. Bauman vs. City, 38 Ann. 43.

The city would indeed be an imperium in imperio if she were thus-emancipated from judicial power to compel her to obey the specific mandates of her sovereign and creator, the State. We cited the Act of 1870 as barring the remedy of mandamus, except to enforce some-particular specific duty imposed by a' valid, subsisting law of the State, for the purpose of eliminating all questions except the single one whether the. laws relied upon by relator did impose upon the defendants the particular duties set- forth in the petition and of which the mandamus was invoked to compel the performance. We held that the said laws did not create such duties, and, therefore, the petition set fortli no cause of action.

We do not hesitate, however, to say that relator’s construction of Act 109 of 1886 is entirely incorrect in every respect.

That act was one amending section 66 of the city charter, and must be construed in connection with the other section of that instrument. Sections 64, 65 and 66 (as amended) read together as follows:

“REVENUE AND EXPENSES.”
“ Sec. 64. That the council shall, once in twelve months, before fixing and deciding upon the amount of taxes and licenses to he assessed for the ensuing year, cause to be made out a detailed estimate, exhibiting the various items of liability and expenditures including the requisite amount for all expenses during said year, and shall cause the same to he published for at least ten days in the official journal of the city, and such rate of taxation as provided by law, on every hundred dollars of valuation, shall thereafter be fixed and assessed as, together with other revenues of the city, maybe necessary to meet said estimated liabilities and expenditures. The adoption of said del ailed estimates shall he considered as the appropriation of the amount therein stated, and the comptroller shall not audit nor shall the treasurer draw or sign any checks upon the fiscal agent therefor of any claims, unless an appropriation therefor has been duly made in accordance with this act.
“ Sec. 65. The council, in fixing- the budget of revenue and expenses, as herein provided for, shall not consider and adopt as á revenue miscellaneous or contingent resources, and affix thereto either an arbitrary Or nominal value or‘amount; but, whenever' such resources are considered and adopted, they shall be estimated on á real and substantial basis, giving the source whence to be derived; a specific sum to be received from each item thereof and no more. The council -is hereby prohibited from estimating for expenditures to be derived from any uncertain or indefinite source, cause or circumstance ; but the council shall, by proper ordinances, provide for the receipt and disbursements of any sums of money, interests, rights or credits that may accrue to the corporation by behest, grant or any cause whatever; and all such sums, rights, interests or credits só received, shall be and-are hereby appropriated' for the purpose of public works and improvements, the manner and details of such appropriations to be ordered by the council.
“Sec. 66. The council shall not, under'any pretext whatever, appropriate any funds for the government of the corporation to the full extent of the revenues, but shall reserve twentj* per cent of said revenues, which reserve, and all sums, rights-, interests and credits received from miscellaneous or contingent sources shall be appropriated by the council for the purpose of permanent-public improvement, as herein provided for.”

It is so evident to our minds that the term revenues, as used in Sec. 66, means the revenue fixed in the budget, or the budget estimates of revenues, that exegesis is difficult.

All three sections refer exclusively to the formation of the budget, which is the fixing in advance the modus vivendi of the city for the ensuing year, by a careful estimate of the expenditures and revenues. The Council is first required to make an estimate of expenditures, and, but for Sec. 6'6, it would not be allowed to levy a greater rate of taxation than would be necessary, with other revenues, to provide for said estimated expenditures. But Sec. 66 authorizes the raising of a revenue 20 per cent beyond the estimated expenses, and devotes the surplus as a reserve fund to be appropriated to public works and improvements. Hence, the city is authorized and is bound to estimate and to provide .a revenue, 80 per cent of which, no more or no less, is equal to lier estimated expenditures, and this 80per cent is irrevocably appropriated to these expenses. .How would the city comply with these mathematical requirements if, as relator contends, she is1 authorized and' required to- appropriate 80 per ceu-t, not ‘Of her estimated'revenues, but of the revenues which sliallbe thereafter actually collected? How can she tell in advance what deficiency may result in the collection of her revenues? How is she to adjust her estimate of expenses and her corresponding provision of revenue in exact proportion or equality to an unknown quantity? The law did not contemplate or require any such impossibilities. It is plain the city must place on her budget, in exact figures, the liabilities and expenditures, and these must be just 80 per cent of the sum designated in amended Sec. 66 as “revenues.” Unless some mathematical process can be invented'whereby to calculate a percentage of an unascertained sum, relator’s construction is impracticable, and we must treat the elision of the word “ estimated ” before “ revenues,” as used in previous statutes, as the simple correction of an useless tautology.

Rehearing refused.


source: Caselaw Access Project

author: JJkemudez, C. J.

license: Public Domain

text:
    No. 10,127.
    Charles L. Howe, Executor, vs. Joseph H. Powell et als.
    An act, purporting on its face to be a sale a remaré, is not translative of the ownership of the real estate to the purchaser, when it is shown that the parties did not intend that it should so operate.
    Such sales, made for an inadequate consideration and unaccompanied by delivery, will be treated, without .sufficient evidence to the reverse, as contracts, by which the tiling nominally sold stands as security and nothing else.
    Property admitted to be worth more than $2500 cannot be claimed to have b.een sold, even a remare, when the price stipulated is $460, or even $1000, and possession was not delivered.
    The vileness of the price and the retention of possession establish that the contract was designed solely to subject the property as a security.
    Such an innominate agreement is in the nature of a pignorative contract, by which a quasi hypothecary right is conferred. It is recognized by the jurisprudence of the State as a contract of security, and may he enforced, on a proper proceeding and showing, for specific performance.
    This cannot he clone in a suit which is .strictly a pure aod simple petitory action, involving nothing but rights of ownership.

      A PPEAL from the Seventeenth District Court, Parish of East jUjL Baton .Rouge. Btorgess, J.

      L. D. Beal and II. O. Miller for Plaintiff and Appellant:
    A sale for a lawful consideration, with the right reserved to the vendor to repurchase the pioperty within a certain period, is a sale with the right to redeem, and passes the title unless within the period tho vendor does repurchase. See Civil Code, Arts. 2439, 2567, 3655: 34 Ann 301.

      Such an act acknowledged before a Louisiana commissioner in Ohio has the force of an authentic act here. K. S., Bee. 608.
    The written act in authentic form or acknowledged is the only exclusive evidence of the intention of the parties; excludes all previous statements or writings, and unless assailed for fraud, or a counter letter is reserved, is conclusive between the parties of the contract it expresses. See Civil Code, Arts. 2234, 2242, 2239, 2336; 5th New Series, p. 3; Creenloaf on Evidence, Sec. 275; 1st Hennen’s Digest, p. 534; Ho. 4, p. 536; Ho. 12.

      K.ernan & Layooelc for Defendants and Appellees:
    ■J. 'Where the parties reside in a common law State, and the instrument is executed in a common law State in the form of a common law mortgage, there can he no doubt the parties intended to create a mortgagee. 12 Ann. 489.
    2. ^Redeemable sales unaccompanied by delivery of the thing sold, of which the considerations are inadequate, courts are bound to consider, without sufficient evidence to the contrary, as contracts, for which the thing nominally sold stands as security and nothing else. Collins vs. Pollerín, 5 Anu. 99 ; Le Diane vs. Boucheroau, 16 Aim. 11.
    3. The conveyance of property in tne form of a sale does not vest the ownership in the apparent buyer if the deed was ieally intended by both parties to be a mortgage. 38 Ann. 154
    4. The court will judicially notice, without proof, that the common law prevails in our sister States 34 Ann. 925.
    5. Ho one can transfer a greater right than he himself has.
   The opinion of the Court was delivered by

JJkemudez, C. J.

This is a petitory action. It is brought against the tenant or occupant of the property, but the parties claiming adverse title have joined issue.

The plaintiff claims that the real estate, which is situated in Baton Rouge, was sold by Kleinert to Gaff, whose executor he is, the former having acquired it from Cochran in 1877.

The defense is, that the property belongs to the respondents by purchase from the same Cochran in 1878; that the original act by the latter to Kleinert was not designed to be a sale, but merely a mortgage, to secure a. debt; that the price was wholly inadequate and possession was never given to Kleinert, but was retained by him and passed with the ownership from him to the respondents, who still have it; that the act from Kleinert to Gaff, on which plaintiff relies, was a mero transfer of bis rights against Cochran ; that the act was never properly recorded: that the debt and mortgage are prescribed, etc.

From a judgment for the defendants, the plaintiff appeals.

It appears that the act between Cochran and Kleinert was executed in Ohio. It has all the characteristics of a sale, but contains the pact of redemption within a specified delay.

The property is admitted to be worth more than $2500, and the price of sale is stated to be $460.

It was recorded in the mortgage book and in that of notarial records in 1877, previous to the sale to the defendants. The transcript does not show that the notarial records ” are the conveyance book in which sales and other transfers of real estate are required by law to be recorded, to affect third persons.

It is shown by a letter of Gaff that he considered the property as having been mortgaged by Cochran to Kleinert, and he directed hi agent to acquire the mortgage for him. Objection was made to the admission of this letter, but it was properly overruled, as it was written evidence opposable to the party in whose name the property* is claimed.

Conceding, however, that the act in question was properly recorded and that no evidence was received to show the intention of the parties, Cochran and Kleinert, the only question which seriously arises in the controversy is : Whether that act did actually transfer title of ownership to Kleinert?

The act is evidently a sale with the faculty of redeeming, vente u rémére.

The text of the law and the jurisprudence upon it are to the effect that by such sale the ownership passes to the purchaser, who, most of the time, is a mere money lender ; but that on payment to him of the amount mentioned in the act, he is divested of that ownership, which passes to the original vendor. In two late cases we had occasion to consider that matter to some extent.—Lawler & Huele vs. Cosgrove, 39 Ann. 488; Davis vs. Citizens’ Hank, Ib. 523; also Jackson vs. Lemle, 35 Ann. 855.

But the law and the jurisprudence only thus say, where the transaction is really a sale, A réméré — that is, where, among other requirements, the price paid was adequate, i. e., in reasonable proportion to the true value of the property. Stewart vs. Buard, 23 Ann. 201.

Hence it is, that when the price is inadequate and possession has not been delivered to the purchaser, but was retained by the vendor, it has uniformly been considered and held that the transaction was not a sale, but a mere security; indeed, a sort of pignorative contract, upon which the law looks with suspicion, for the protection of the embarrassed and unfortunate debtor against fch© rapacity of his ravenous creditor.

Indeed, the settled doctrine of this Court on this subject is, that “redeemable sales, unaccompanied by delivery of'the thing sold, of which the considerations are inadequate, will be treated by courts, without sufficient evidence to the contrary*, as contracts, for which the tiling nominally sold s'tauds as security and nothing else. Le Blanc vs. Bouchereau, 16 Ann. 11; Collins vs. Pellerin, 5 Ann. 99; Miller vs. Shotwell, 38 Ann. 891; see Ware vs. Morris, 23 Aun. 665, also p. 201; also Merlin, Vo. Pignoratif Contrat, 284; Troplong, Vente No. 695, p. 191; Baudry Lacantinarie, Vol. 3, No. 1045, p. 606; Laurent, Vol. 28, No. 544, p. 531.

The record shows that the price of sale was $460 ; that possession never was delivered to Kleinert, but continued in Cochran, and since 1878 has been in the defendants, and the admission is that the value of the property exceeds $2500.

The price is about one-sixth of the value. It it a vile price. Had the sale been a real one in the intention of the parties, the vendors would have had the right to demand its rescission for lesion beyond moiety. R. C. C. 2589.

The detained possession by the vendor is a presumption of simulation, for, whosoever sells must deliver possession to the purchaser, unless it be expressly stipulated otherwise for a stated period. R. C. C. 2479, 2480.

It is true that the plaintiff says that besides the $460 there was another consideration for the sale. The record does not establish this averment of the petition ; but even if it did, that supplemental consideration, in the very terms of the petition, would consist of a mortgage debt originally for $2000, but reduced by partial payments to $500.

The act does not mention the assumption of that mortgage debt as a part of the price; but, even if it did, the sum at which it was reduced, $500, added to the $460, would not make that price to be'$1000, and that amount would still be inadequate as the price of property admitted to be worth more than $2500.

It is manifest that Cochran never intended to sell to Kleinert, and Kleinert did not propose to buy; that even if they so designed, the transaction would be nullity as a conveyance, owing at least to the vileness of the price and the absence of delivery of possession, and that by merely putting the property in the name of Kleinert, Cochran has simply given and Kleinert has only received a security for the payment of the sum due him.

In the case of Ware vs. Morris, already alluded to, 23 Ann. 665., ’which is analogous to the present one, the plaintiff claimed to be recognized as owner of the property which the court found had been given as a security for the payment of the debt and asked no other relief, the then court affirmed the judgment appealed from, which had rejected plaintiff’s demand, because, by the act, the ownership had not been divested and had not passed to the plaintiff.

In the couise of the opinion the Court took occasion, however, to say :

Here a hypothecary right is given under the false appearance of a contract of sale, possession being retained by the ostensible vendor.”

What was then said, may be repeated here.

Tlie plaintiff has brought a purely petitory action and has prayed to be recognized and put in possession as owner of the property which'he avers was sold to the deceased, whom he represents.

On the other hand, the defendants resist the claim for ownership, alleging that it resides in them. They admit that the contract was intended as a mortgage, or wliat is nearly the same by implication, as one conveying quasi hypothecary rights, and pray ihat the suit b« dismissed and that they be recognized as the owners.

We merely decide here, that even if the act in this case was designed to be a sale d réméré, the title did not move from the one (o the other.

We do not undertake to name the contract; but we recognize it as a valid agreement under the jurisprudence of this State, which is susceptible of enforcement, on a proper proceeding and showing, for specific-performance. Such a casé is not presently before this Court.

When such a claim will be presented, the facts and the law warranting, the contract will be entitled to be given, as against the world, the effect which the parties designed it should have and of which all others had due notice.

The ruling in Stewart vs. Board, 28 Ann. 201, was made in a controversy in which the contract presented the features of a sale á réméré, and effect was given to it because it proved to be a valid sale of that class.

In the present instance, the contract in appearance is a similar one, but no effect is given to it, because, on scrutiny, it is found not only that the parties did not propose that it should operate as a transfer of ownership ; bus, also, that even if they intended otherwise, it does not combine essential-elements to make it translative of the, fee, which, therefore, never was divested.

As the plaintiff does not ask specific performance, and there is no issue on that point, we are powerless to grant relief, even if the circumstances justified.

These views dispense us from passing upon the existence of the debt and of the mortgage against which defendants have, out of caution, pleaded prescription and pre-emption.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,135.
    Succession of Adèle Lamm. Opposition of Mrs. Pauline Kaufman.
    iTudgment having been contradictorily rendered in a contest between two applicants for the appointment of an administrator, and the unsuccessful party having thereafter joined issue on the merits with the successful party in a suit instituted by him as administrator of the succession, this cannot be considered and treated as such an acquiescence in said judgment as would prevent a subsequent appeal therefrom.
    When the husband and survivor of the community^dies without having administered the succession of his predeceased wife, of which he had the usufruct, his heirs being also the heirs of his wife, the two suoessious'may be settled and distributed among the heirs in his succession alone.
    The administration of the succession of the'deceased husbaud necessarily involves with it the administration of the community.
    It is only after the heirhas been called on by the creditors of the succession to renounce or to take the inheritance, and he asks time to deliberate, that an administrator can bo appointed.
    The heir who accepts a succession, with the benefit of an inventory, is placed nearly on the same footing with curators of vacaut estates. His engagement is to administer as beneficiary heir.

    The result .of the whole leg’slation on the subject is that the heir who accepts, with the benefit of inventory, may institute suits touching the succession without making himself unconditionally liable for his ancestor’s debts.
    He may even institute suits that are conservatory in their character before he either accepts or rejects, provido he claim time for deliberation and make proper reservation, without assuming (.lie capacity of a simple heir.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Burgess, J.

      Cross é Buelmer and Bernard Titelie for Opponent and Appellant.

      Kernan & Layeoelc and Leonard, Maxlcs (& Bruenn for the Administrator, Appellee.
   On Motion to Dismiss Appeal.

The opinion of the Court was delivered by

Watkins, J.

This case presents a controversy over the appointment of an administrator of the succession of Adéle Lamm, deceased. She was the wife of Leopold Dalsheimer, deceased. There was a community existing between them, and neither owned any separate property. The wife died on the 26th of October, 1879, and the husband in the spring of 1886. The latter left a will, containing a be-quest in favor of Mrs. Pauline Kaufman, one of his forced heirs,- of aU the- disposable part of his fortune; and she was appointed executrix with full seizin. She obtained the probate of the will, qualified as executrix and had an inventory taken, all on the 22d of June, 1886.

On the 6th of July, afterwards, Mrs. Sarah Rose and Henry Dal•sheimer, co-heirs of Pauline Kaufman, joined in a petition for the appointment of J. W. Hubbs as administrator of the succession of the predeceased wife, Ad ele Lamm, and caused an inventory of her estate to be taken. This application was resisted by Pauline Kaufman on several grounds ; but she, in the alternative, prayed to be appointed administratrix, if an administration was deemed necessary.

On the trial the court held that an administration was necessary, and that the opponent was entitled to be appointed on giving bond according to law; but it further decreed that upon her failure to furnish a satisfactory bond Hubbs should be appointed upon furnishing bond in her stead.

In January, 1888, Pauline Kaufman procured this appeal, and in this Court — Hubbs-having in the meanwhile obtained confirmation of his appointment — he seeks its dismissal on the ground that she had acquiesced in the judgment appealed from by joining issue on the merits with him in the suit entitled J. W. Hubbs,.administrator, vs. Mrs. Pauline Kaufman, executrix, the record of which is now before us on appeal, and which is annexed hereto for reference.

It is clear to our minds that it is altogether insufiicent for the purpose of proving acquiescence.

The appearance of Mrs. Kaufman was at a date subsequent to the appointment and qualification of Hubbs under the decree of court. That decree was valid on its face. This appeal was deemed necessary to obtain relief from it.

Had she tendered, in Imiimi, an exception to Hubbs’ capacity to stand in judgment as administrator of Adele Lamm’s succession upon the .introduction of this succession record in evidence, it would have been overruled. It is, therefore, obvious that she thereby abandoned no valuable right.

Had she obtained her appeal prior to the filing of her answer it could not have been considered as an abandonment of it, and obtaining it subsequently has no additional force.

The motion to dismiss is denied.

On ti-ie Merits.

On the inventory caused to be taken by Pauline Kaufman of the succession of Leopold Dalsheimer there appear only two items of property, viz:

1. Community real estate..........................$5,000 00

2. Community personal estate..................... 48 50

$5,048 50

This inventory purports to represent the entire interest of the two-deceased Rpouses in the community.

On the one taken of the succession of Adéle Lamm, in pursuance of Hubbs’ application on the 6th of July, 1886, there appear the following items of property, viz:

1. Community real estate (one-half interest)...........$3,000

2. Community rights and credits (one-half interest) 5,850

$8,850

The real estate that is embraced in each is the same, and, with the exception of $48.50, the rights and credits appraised in. the latter represent a valuation of certain articles of community property which Leopold Dalsheimer is alleged to have used and consumed during the continuation of his usufruct and for which he is responsible to the heirs of Adéle Lamm.

Pauline Kaufman opposed the application made for the appointment of Hubbs, on the following grounds, viz:

1. That the succession was already under administration as community property — it having been included in that of Leopold Dalsheimer; and that it is neither necessary or expedient that the same estate should be subjected to another administration.

2. That the -whole of said property was in the custody and undei the control of Dalsheimer as usufructuary and owner, and that the affairs-of the community cannot be liquidated and settled elsewhere than in his succession.

3. That the whole property is under her seizin under the will, in pursuance of a judgment of the court that cannot be attacked collaterally.

In the alternative she prays to be appointed administratrix, if an ‘administration separate from that of the succession of Dalsheimer is-deemed necessary or expedient.

Judgment went in favor of opponent, as stated above; but she being dissatisfied therewith appealed.

In the Succession of McLean, 12 Ann. 222 et seg., it was held “ thattlie administration of the succession of the deceased husband involves with it the administration of the community.”

The Court said in Flournoy vs. Flournoy, 29 Ann. 741, that where the husband and survivor of the community dies without having administered the succession of the wife, of which he had the usufruct, his heirs being also the heirs of his wife, the two successions may be settled aud distributed among the heirs in Ms succession alone,” etc. 22 Ann. 131, Pennison vs. Pennison.

The instant case is exactly similar. The heirs of Adéle Lamm are identically the same as those of Leopold Dalslieimer. Tl.e former died first, and the latter did not administer her succession at all, We gather from the record that her succession is solvent and has a large claim against that of her husband for an interest in the personal effects of the community.

We cán perceive no reason why .that claim, as well as all others, could not be adjusted and settled in due course of the administration of the Dalslieimer’s estate.

A community is.not a partnership, but even a closer and more intimate union of interests.

In case there should be an insufficiency of community property to pay community debts, the separate property of the husband may be called upon to contribute.

Not only is it entirely projier and right that the succession of the husband should embrace that of his deceased partner in community, but two distinct and separate administrations are unnecessary and would occasion increased expense and litigation.

We are of the opinion that the judgment appealed from is erroneous and should be set aside.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided aud reversed; and proceeding to render such judgment as should have been rendered in the court below, it is ordered, adjudged aud decreed that the application for the administration of the succession of Adéle Lamm bo rejected, and that all costs of both courts be taxed against petitioner and appellee.

On ArmiCATroN eor Rehearing.

Owing to the importance of the subject we have thought proper to supplement our views heretofore expressed and against which error is urged.

The application suggests, as a corollary of our opinion, that if the succession of the predeceased wife cannot be administered separately from that of her subsequently deceased partner in community, her heirs are denied the privilege of accepting her succession, with the benfit of inventory, and ergo our opinion is wrong.

The claimants for administration conclude their brief thus:

“ The heirs of Mrs. Lamm could sue the executrix of Dalsheimer for and force a settlement of the community,; but the heirs of Mrs. Lamm do not wish to accept her succession purely and simply ; they ■do not wish to bind themselves personally for any debts with which her succession may be encumbered; but they are interested in having her succession administered in order that its debts may be paid, and that they may receive anything left after payment of debts. The matter ■cannot be settled until some one is authorised to act for the succession of Mrs. Lamm, and the court cannot, we think,. properly refuse to appoint an administrator to her succession.”

The legal deduction, from this argument, is that an heir cannot accept a succession, with the benefit, of an inventory, unless an administrator be appointed to take charge of its property and settle its affairs. In support of this proposition they cite and rely upon JSrwin vs. Orillion, 6 La. 212, in which the court expressed the opinion that the articles which treat of the appointment of an administrator are from 1034 to 1040 inclusive (O. C.), and they seem to require the appointment of an administrator in every ease where a succession is accepted, with benefit of ■inventory."

We have been at the pains to make careful research into our jurisprudence on this question, and have found the following decisions, which appear to favor the opinion quoted, viz.: 6 La. 493, Poultney vs. Barrett; 17 La. 500, State vs. Judge; 14 Ann. 641, State vs. Leckie; 21 Ann. 364, Succession of De Roffignac; 27 Ann. 351, Succession of Linton.

Opposed thereto we find, however, quite as many, and quite as respectable authorities.

Among the number is O'Donald vs. Lobdell, 2 La. 299, from which we make the following pertinent extract, viz.:

“If, indeed, on opening the succession, and before the heir has accepted or rejected the succession, it was a matter of course that an administrator should be appointed, then any act of the heir, previous to acceptance, would be irregular, and the suit could not be maintained ; but by law the appointment of such an officer is not a matter •of course. It is only after the heir has been called on by the creditors to renounce, or take the inheritance, and he asks time to deliberate that an administrator can be appointed. The result of the whole legislation on tlie subject we take to be, that the heir may institute suits-before he accepts or rejects. It is true, if he be of the age of majority, and do so without qualification, this in itself will be an acceptance.
* *• fc •**•#* * *
If' the creditors apprehend any damages from the heir collecting-funds of a succession, which he may thereafter reject, they have the-power to call upon him to accept 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, 1029, 1032, 1034, 1037.

A similar doctrine was maintained under the old code, antecedent to-1825, as the following quotation from Cox vs. Martin's Heirs, 12 O. S. 363, will attest:

“ On referring to the Civil Code, where it treats of heirs with the benefit of inventory, it seems that they are placed nearly on the same footing with curators of vacant successions.
“ In p. 168, Art. 104, we find it laid down that although the heir who-accepts with the benefit of an inventory be really the lawful heir and true successor of the deceased, the effect, however, of the benefit of" an inventory is to make him appear, in the eyes of the creditors and legatees of the succession rather as the administrator of the estate than as the true heir and proprietor of it.
They may be required, under certain circumstances, to give security for the value of the property contained in the inventory, etc.” 11 O. S. 675, Dufour vs. Camfranc.

In the still more recent case of Flower vs. O’Connor, 7 La. 209, that view was strengthened and fortified by a clearly expressed and well-reasoned opinion, from which we have made the following extracts, viz.:

“ The defendant being the mother of S. Bell, who died without issue, became his heir-at-law, and was seized of his estate at the moment of his decease, subject, however, to her right, * * * either to renounce-it or to limit her liability to creditors by accepting with the benefit of inventory. She went before the parish judge * * and declared her intention to accept the succession with the benefit of inventory.
* * * * -*• * *
“ The acceptance of the estate * * * was an engagement, as-relates to creditors, that if she did not administer the estate according. to law, as ’beneficiary heir, she would be personally liable for the debts; that if she neglected to take an inventory and other conservatory steps ; if, by disposing of the property belonging tó the estate as' her own, she put it out’of her power to make to the creditors a fair exhibit of the means of tíie estaté' to pay its debts, then the creditors should have the right to consider her as having forfeited the benefit of inventory and made herself wiconditional heir.”

These views are in strict conformity with the provisions of the Code of Practice, with regard to the method of making settlements of successions.

Articles 990 and 991 provide the mode in which «.editors may obtain the sale of the property of vacant estates.

Article 992 declares that the principles contained in the preceding articles shall apply to alt successions acceptedwith the benefit of inventory, whether the heirs are minors or of age, and to all successions administered by administrators.”

Article 993 indicates the mode of classifying and the order of paying debts of a vacant estate, and provides that, on default of proceeding accordingly, execution may’ issue against the propertjr of the curator.

Article 994 provides that like execution shall issue against a tutor or curator “ in the same manner as is provided in said (preceding) article against the beneficiary heir, and curator of a vacant estate; and, on said execution, the property of said tutor or curator shall be sold in the same manner as that of a beneficiary heir or curator of a ■vacant estate."

ft must, be borne in mind that, in the cited cases, there was under consideration the rights and claims of beneficiary heirs who had .accepted their ancestor’s successions with the benefit of inventory, not those of heirs who had been called upon by the creditors of the deceased to accept or reject, and who had claimed time to deliberate,, and not those of creditors demanding, on that account, the appointment of an administrator.

And such is the apparent situation of the heirs of Adéle Lamm — at least, they signify a willingness to venture such an acceptance, if they should not incur responsibility as simple heirs on that account.

In further illustration and enforcement of the principle announced in the older cases, we find in Bryan vs. Atchison, 2 Ann. 462, a concise statement of it, as applicable to their exact attitude towards tlie succession of Lamm, viz: It is true that, under the dispositions of the Civil Code, when the heirs claimed the time to deliberate, an administrator was to be appointed in all eases, and when the succession was afterwards accepted under the benefit of inventory, the administrator was to continue in his functions, and settle and liquidate the succession.”

But the Code of Practice, subsequently adopted, provides that an administrator shall be appointed in such cases if any of the creditors of the succession require it, and this we take to be the rule now in force, as being the last expression of legislative will, and having, moreover, the advantage to be founded in reason, and to harmonize with other dispositions of the Ciode'of Practice relating to the administration of , successions.” Vide, C. P. 976; R. C. C. 1041 (1034).

That decision was expressly affirmed in the Succession of Story, 3 Ann. 502.

In this manner the decisions we have cited are made perfectly harmonious with the provisions of the Civil Code, which have been interpreted as requiring, in such cases as the instant one, the appointment of an administrator. In this manner subsequent jurisprudence, permitting the appointment of an administrator or curator, in no case, unless some emergency required it, may be reconciled.with the Civil Code and the adverse opinions referred to.

Reference to such of those adverse cases as have been since decided, will show that no mention is made of Bryan vs Atchinson, nor of C. P. 976.

In our opinion, the views entertained by the Court, as expressed in Erwin vs. Orillion, have been so. completely overborne by the opinions of their successors in Flower.vs. O’Connor and Bryan vs. Atchinson, as not to require that it should be any inore specifically' overruled. It is quite sufficient for us to say that we are in perfect accord with the latter, and are of opinion that it is a conservative doctrine, and one that tends to simplify and facilitate the settlement of successions and to reduce the cost to a minimum, and at the same time to deprive the creditors of neither security or safeguard.

Under the operation of this rule there is no impediment in the way' of the heirs of the succession of Adéle Lamm. With the proper reservation being made, they may liquidate their demands against the succession of Halslieimer, by suit or otherwise, without incurring the risk or responsibility they seem to apprehend. Having no interest in the succession of the latter, except that, of creditors, nor in that of the former, except that of heirs, the way is easy to. the accomplishment of the object they .seem to have in view.

Rehearing refused.


text:
    No. 10,134.
    J. W. Hubbs, Administrator, vs. Mrs. Pauline Kaufman, Executrix.
    This Court is bound to take cognizance of its own decisions, and in cases so intimately associated that one is a necessary incident of the other, the decree in one should be so framed as to give effect to the decree in the other, and save litigants unnecessary cost and delay,
    PPE AL from the Seventeenth District Court, Parish of East Baton ■Rouge. Bu/rgess, J.

      Kernwn & LayeocJc wnd Leonard, Maries <& Brueivn. for Plaintiff and Appellee.

      Cross & Buclcner wnd Bernard Titche for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

The plaintiff institutes this suit as the administrator of the succession of Adele Lamm, deceased.

It cannot be enteitained, because we have just decided that he was not entitled to administer her succession separate and apart from 'that of her deceased husband, Leopold Dalsheimer, and rejected his demands with cost.

Vide succession of Adéle Lamm, Opposition of Mrs. Pauline Kaufman, No. 10,135.

We feel bound to talce notice of our own decisions in cases thus intimately associated — one being an incident of the other — and so frame our decree in one as to give full force and effect to the decree in the other, and thus save the parties unnecessary delay and cost.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annuled, avoided and reversed; and it is further ordered, adjudged and decreed that plaintiff’s suit be dismissed at his cost in both courts; that the rights of the heirs of Adéle Lamm be reserved in the succession of Leopold Dalsheimer, deceased.


author: Bermudez, C. J.

text:
    No. 10,075.
    William Oliver vs. Board of Liquidation.
    It is irregular to proceed by rule to compel a legal organization to perform a duty, however clearly imposed upon it.
    The' objection that such proceeding ia unauthorized, and ought to he by mandamus, is-wel founded and cannot be disregarded.
    APPEAL from the Civil District Court for the Parish of Orleans. Mghtor, J.

      W. S. Benedict for Plaintiff and Appellee.

      M. J. Onnningham, Atto'rney General, for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an appeal from a judgment commanding the Board to fund certain^State warrants, under'act No. 3 of 1874, and other acts.

The Board of Liquidation charges that the judgment was rendered on an irregular proceeding by an incompetent court; that the judgment which recognizes the validity of the warrants, and which seems as a foundation for the demand to fund, is an absolute nullity, because rendered without citation duly served, and, on answer filed by and contradictorily with, the clerk of the then Attorney General; because the Board never had legal knowledge of the suit ,• because, had it been properly notified, it would have set up defenses, destructive at least in part, of plaintiff’s pretensions, etc.

That judgment, rendered in November, 1884, by the Civil District Court for the Parish of Orleans, was affirmed by this Court in May, 1885. O. B. 59, fol. 410, No. 9337.

It may be that this judgment is a nullity, but that issue cannot be here passed upon, as the question of form of the proceeding to enforce it must be first decided, and the conclusion is in favor of the defendant Board.

The judgment brought up for review is rendered on a proceeding, the object of which is to have the warrants funded by 'the Board, as though the original judgment had directed the performance of that operation, by that organization.

It is unnecessary to determine whether that judgment, or the law,, made it the duty of the Board to fund the warrants. Conceding that either did, the question arises, on the objection of the Board, whetlieitbis purpose can be accomplished otherwise than by mandamus.

The proceeding is by rule. The authorities are numerous that, in order to compel a legal organization to perform a duty, even if clearly imposed upon it, the proceeding ought to be by mandamus.

No doubt the question of form may be waived and the obligation to perform may be determined on a more summary proceeding by rule; but whore objection is made to the form, it cannot be disregarded.

It is, therefore, ordered and decreed that the judgment appealed from be reversed and that the rule to fund be dismissed, with costs, in both courts.


author: Poché, J.

text:
    No. 10,122.
    Ella J. Martine and Husband vs. S. F. Hopkins.
    A cause in which the original demand exceeded two thousand dollars, but which, by amended pleading's, finally involves an amount not 'ovceediníí tv o thousand dollars, is not appealable to the Supreme Court.
    Hence, such an appeal cannot be sustained.
    APPEAL from the Ninth District Court, Parish of Tensas. Young, J.
    Steele, Garrett <& JDagg for Plaintiff and Appellant.

      Farrai & KruttséhnUt and J. J). S. Neivell for Defendant and Appellee.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

An inspection of the record in this case discloses that, under the effect of plaintiff’s amended pleadings, the pecuniary amount involved herein, which is the real matter in dispute, is less than the lower limit of our jurisdiction, and hence the motion to dismiss this appeal must prevail.

Plaintiff’s original demand was for an account of tutorslnq), as well as for an account of defendant’s management of her property and funds after the expiration of the tutorship, or, in default, for a moneyed judgment in the sum of $5775, subject to credits amounting together to $2275. Confronted by an exception of a wrongful joinderof incongruous causes of action, plaintiff discontinued that part of her demand which had reference to all matters pertaining to defendant’s management of her affairs and after the expiration of the tutorship, and the case was tried on the issue thus restricted.'

By a reference to her petition-it appears that the amount of her claim growing out of the tutorship was $2015, subject to a credit acknowledged in her petition of $275, thus reducing her demand to $1800, which, under her own pleadings, was the largest amount for which she could possibly have recovered any judgment.

It, therefore, clearly follows that we have no jurisdiction of the controversy as presented in this record.

The appeal is therefore dismissed at appellant’s costs.


author: Tono, J.

text:
    No. 10,126.
    Charles L. Howe, Executor, vs. Isaac Austin et als.
    In a contract- relating to real estate situated in this State between parties residing in a State where the common law prevails, it is stipulated substantially that one of the parties sells to the other the immovable for a designated price, and, further, that the said sum mentioned as the price was a debt owing to the alleged purchaser by tho vendor, and that should said debt be paid by a time stated the act or conveyance .should he void. The act was termed by the parties ‘a deed ot* mortgage,” and was recorded in the mortgage record book of the parish whore the property was situated. Held, that tho instrument was a common law mortgage and did not have the effect of passing tit-le to tho property.
    APPEAL from the Seventeenth District Court, for the Parish of East Baton Bouge. JBurgess, J.

      L. 2). Beale and II O. Miller for Plaintiff and Appellant:
    The sale of property by the debtor to his creditor for eleven hundred dollars, the act stipulating that if the. debtor pays bis promissory note .for eleven hundred dollars within a cortain period the sale is to be void, whether viewed as a sale on condition or with the i-iglit to redeem reserved, in either view conveys title to the purchaser, if within tlio period the vendor does not- pay his note. See Civil Code. Arts. 2021, 2043, 2439, 2567; 2 La. 103.
    The written title iu authentic form or acknowledged by the vendor is conc’usivo on tlio vendor and his heirs, unless assailed for fraud or a couuter letter is reserved. See Civil Code, Arts. 2234, 2236, 2242, 2239, 2276; 19 La. 409; 31 La. 416; 1st Hoimon's Digest, p. 534 : Ho. 4 etseq., p. 536 ; Ho. 12.

      Kernan tB Layeoeh for Defendants and Appellees:
    There can be no vente a remove- without a stipulation for the return of tlio prieo. A contract of sale, the validity of which is made to depend on the payment of notes which form no part of tho consideration, is not a vente a remere. Downes vs. Scott et al., 3 Ann. 278.
    AVhere it is evident that an instrument in the form of a conditional sale was intended by tlio parties to be executed in the form of a common law mortgage, it will not be regarded as a sale. 15 Ann. 386.
    Where tlio parties to the instrument both reside in a common law Stale, and the instrument is executed in a common law State in the form of a common law mortgage, there can bo no doubt- tho partios intended to create a mortgage. 12 Ann. 489.
    The conveyance of property in t-lie form of a sale does not vest the ownership in the apparent buyer, if the deed was really intended by both parties to be a mortgage, 38 Ann. 154.
    A contract of sale m which there is a stipulation that the vendor may redeem the property by returning the price within a certain time, where the vendor remains in possession of the property and the price is inadequate, will be regarded not as a sale, with the equity of redemption, but merely as a security for the return of the money paid to the vendee* unless sufficient evidence to the contrary be produced. 16 Ann. 12; 5 Ann. 99.
   The opinion of the Court was delivered By

Tono, J.

This is a petitory action instituted By the plaintiff, testamentary executor of TIios. A. Goff, deceased, late of Aurora, Indiana, to recover for the succession of the deceased a tract of land situated in East B.aton Rouge and described in the petition.

The claim is based upon an instrument set forth in the petition, and termed a sale by the plaintiff. It bears date the 28th of April, 1877, and was executed by George W. Corcoran and Martha Corcoran, his wife, residents of Kenton connry, Kentucky, in favor of Thomas Goff, a resident; of Indiana.

The instrument was indorsed, mortgage from George W. Corcoran and wife to Thomas Goff, and was recorded in the book of mortgages in tire parish of East Baton Rouge shortly after its execution, and seveval years thereafter in the book of conveyances.

Corcoran acknowledged tbe execution of the instrument and bis signature thereto before a notary public of the city of New Orleans, and. in this acknowledgment the instrument is termed or described as a deed of mortgage.

Tile act in question contained a clause substantially to the effect: “That if the vendors paid their promissory note of eleven hundred dollars and interest, held by Goff, the vendee, that then ‘ these presents shall be void.”

On the 30th of May, 1878, Corcoran conveyed, by an act of sale in its terms complete, the same land to Miss Emma Corcoran and Mrs. Agnes C. Moore, the real defendants in the suit; and on this act of sale they resist the demand of the plaintiff and claim title to the property in themselves.

The act from Corcoran and wife to Goff, of the 28th of April, 1877, on which plaintiff rests his claim to the land in controversy, was not a sale, but a mortgage only, in the common law form — the common law being the system prevailing in the States where the parties resided at the time.

It did not vest Goff with the ownership of the land, or the title thereto, and was not intended to do so; but its sole purpose was to secure tlie payment of the debt owing by Corcoran to Goff acknowledged in the instrument. 12 Ann. 480; 15 Ann. 386; 38 Ann. 154; Ib. 890.

The case last cited is that of Miller vs. Shotwell, where title was ■claimed to certain lands in this State under an instrument almost identical with the one relied on by plaintiff in the instant one. In that case the whole subject was thoroughly considered and the adjudications on the point cited and reviewed, and it was expressly ■determined that the instrument purporting to be a sale, like the one ■under present consideration, did not convey a title to the property -and could only be received as a mortgage given'to secure the payment ■of the debt set forth in the act.

Whether the debt mentioned in this act lias been paid or not, or whether the mortgage is or is not still operative against the land, is at present a matter of no concern ; the sole question being one of sale or title vel non.

This act being the sole foundation of the plaintiff’s claim, and it falling, his claim goes with it. He has no case.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,125.
    Brown & Learned vs. John Smythe et al.
    Creditors whose claims arose subsequent to a judgment of separation of property between husband and wife cannot contest the correctness or validity of such judgment, except, at least, for absolute nullities.
    Want of publication of the judgment, unless shown to have been fraudulent or injurious, is not a ground of nullity whicli subsequent creditors can urge.
    Where the judgment allows no money claim against the husband and only recognized, the wife’s title to a carriage and horses shown to have "boon her paraphernal property, no execution was necessary, and want of it is not a ground of nullity.
    The wife’s right to a separation of property is not limited to cases where she has actual claims against her husband which are endangered, but extends also to the case in which his circumstances require it, in order that she may enjoy the fruits of her separate industry for the support of hersolf and family without liability to her husband's creditors.
    A PPEAL from the Ninth District Court, Parish of Tensas. jLJl Young, J.

      J. i\r. Luce and 8. L. Elam for Plaintiffs and Appellants.

      Steele, Garrett & I)agg for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

The object of this action is to declare the nullity of a judgment of separation of property between defendant John Smythe and his deceased wife, with the view of subjecting certain property subsequently acquired by the wife to the payment of the husband’s debts.

The grounds of nullity alleged are two — want of publication, and non-execution of the judgment.

1. As to want of publication. Plaintiffs only became creditors of the husband long after the judgment of separation and acquisition of the property by the wife.

It is well settled that such creditors have no right to contest the correctness or validity of the judgment, except, at least for absolute nullities. Gates vs. Legendre, 10 Rob. 74; Brassac vs. Ducros, 4 Rob. 336; Morris vs. Williams, 6 Ann. 391; Levistones vs. Brady, 11 Ann. 696; Noland vs. Bemiss, 14 Ann. 49; Farrell vs. O’Neill, 22 Ann. 619; Hanney vs. Maxwell, 24 Ann. 49; Lewis vs. Peterkin, 39 Ann. 780.

It is equally well settled that want of publication, unless shown to have been fraudulent and injurious to third persons, is not a cause of absolute nullity. Turnbull vs. Davis, 1 N. S. 568; Raiford vs. Thorn, 15 Ann. 81.

In this case, moreover, want of publication is not proved. Files of the newspaper in which it should have been published could not be found. The presumption is that the law was complied with.

2. As to non-execution. The petition for separation alleged and the judgment allowed no money judgment against the husband, and no claim for any property except a carriage and pair of horses. The evidence establishes that these were her paraphernal property, owned by her before marriage, and the judgment simply recognized her title to them. There was no necessity for the execution of such a judgment. Jones vs. Morgan, 6 Ann. 632; Holmes vs. Barbin, 13 Ann. 474; Vickers vs. Block, 31 Ann. 672; Baldwin vs. Insurance Company, 2 Rob. 136.

She would have had the right to hold or resume the possession and administration of such paraphernal property without the necessity of a judgment of separation or execution thereof. Her petition plainly sets forth that her object was, in view of the embarrassment and heavy indebtedness of her husband, “ to secure to herself the moneys of her own industry and to enable her to reap the fruits of her own industry.” This has been frequently held to afford a sufficient ground for the separation, independent of any actual claims against lier husband which may he endangered. Davock vs. Darcy, 6 Rob-343; Jones vs. Morgan, 6 Ann. 632; Wolf vs. Lowry, 10 Ann. 272; Mock vs. Kennedy, 11 Ann. 525; Webb vs. Bell, 24 Ann. 75; Meyer vs. Smith, Ib. 153; Block vs. Vickers, 31 Ann. 672.

The charge that the property acquired by the wife was bought viitli the husband’s means is not only unsustained, but rebutted l>5r proof to the. contrary.

Judgment affirmed.


text:
    No. 9954
    Raymond Pochelu vs. Edmond Catonnet—James Fahey and William Doll et als., Intervenors.
    A salo made to one not a creditor, for a price in cash, though inadequate to the value of the property conveyed, cannot be annulled at the instance of the creditors of the vendor, who was insolvent at the time, to the knowledge of the purchaser, on the charge of simulation.
    A dation enpaiement, made in consideration of a valid and subsisting' indebtedness, cannot he revoked on the charge of simulation, if the conveyance was really intended to pass a title to the '■property to the creditor, and he really acknowledged full payment of the debt.
    In an action cn declaration de simulation, pure and simple, wliicb is unaccompanied with an alternative prayer that if the act complained of is not found to be a fraudulent simulation, it ho declared to have been one ia-/rai«2 of creditors, and, as such, annulled, it is not in our power to vender j udgmont annulling it on the latter ground.
    It is the settled jurisprudence that this Court is without jurisdiction in revocatory actions which seek to subject pro-party that has been fraudulently convey ad to the payment of debts less than $2000 in amount.
    A PPEAL from the Civil District Court for the Parish, of Orleans-l\ JiigMor, J.

      Blanc dé Butler for Plaintiff and Iutervenors, Appellees.

      Thos. J. Semines and T. M. GUI for Defendants and Appellants.
   The opinion of the Court was delivered b.v

Watkins, J.

Plaintiff, being a creditor of Manual Navos & Co.composed of Edmond Catonnet and Manual Navo*, for the sum of $1000, and of Manual Navos, individually, for $200, demands tho annulment of a certain sale made by Manual Navos to one Henry Rongagnac of a certain coffee-house, fixtures and paraphernalia, which is situated on the premises bearing the municipal numbers 9 and 11 of St. Charles street, in tile city of New Orleans, on the allegation that it was a fraudulent simulation.

He likewise demands the revocation of a dation en paicnient of same property from Rougognac to Bernard Maylie, of subsequent date, on like averment of simulation.

This property was acquired from Thomas Handy by Manual Navos & Co., and while said firm owned it, a portion of said indebtedness was created in the purchase of materia's and the price of workmanship employed in the construction of certain improvements and repairs on said premises, and on this property the plaintiff seeks to have his mechanic’s lien and privilege enforced.

He charges bad faith, insolvency, fraud and conspiracy on the part of all the parties enumerated and resulting injury therefrom.

He specially charges that the notes of $1000 and $400, which Maylie surrendered to Rougognac in exchange for or in consideration of said property, represented no real and actual indebtedness of the latter, but that same were fictitious and simulated.

He represents and claims that said defendants have, by their said wrongful and tortious acts, made themselves jointly and severally liable to plaintiff for the amount of his demands.

He couples with the foregoing averments an allegation-of an apurehended transfer during the pendency of the suit, and prayed for and obtained writs of injunction and sequestration.

James Fahey and William Doll, whose united demands aggregate $1769 75, intervened and joined the plaintiff in the prosecution of his demands and upon similar averments.

The defendants tendered, as an exception m limine, the plea of no cause of action, and the same having been overruled, they plead the general issue. But Catonnet made an additional answer to the effect that he was released from all liability by the dissolution of the firm of Manual Navos & Co., by reason of his assignment to Navos of his three-fourths interest in the business of the partnership.

The facts, as we glean them from the records, appear to be as follows:

On the 5th of November, 1885, Manual Navos convened the above described property to Henry Rougognac by authentic title, and for the expressed consideration of $1000 cash in hand paid and the assumption of the October instalment of the rent, $229 16, then past due. On the 16th of the same month Rougognac conveyed the same property to Bernard Maylie for the expressed consideration of $1400, evidenced by two promissory notes of the vendor — one for $400 and another for $1000 — which were surrendered and canceled by the latter.

It appears from the evidence that, finding himself in embarrassed, if not insolvent circumstances, Navos felt it necessary to make some disposition of his property, and, possibly, with the view of satisfying ■some of his creditors. With this end in view, he proposed to make a sale to one or two different ones of his creditors, but they declined to purchase. He then advertised his property for sale in the newspapers, likewise without avail. He then made the conveyance to Rougognac. It appears that the latter obtained from Bernard Maylie a check of #1000 with which to make the payment of the purchase price, and it was used as cash in making that transaction with Navos. It further appears that, amongst others, Novos was indebted to Pierre Donnes in the sum of $700, evidenced by his promissory note, and that he had promised Donnes to pay the note if he would secure him a purchaser for his property. Stimulated, perhaps, by this inducement, he interviewed Rougognac and induced him to become the purchaser. Bernard Maylie was seen and influenced to put up the necessary amount of money to consummate the trade. But, in order to insure the collection of his note, Donnes placed it in the hands of Maylie with instructions to collect it out of the money' to be paid to Navos for the property. So it transpired that after the act of sale to Rougognac was executed and signed, the check of Maylie was handed back to him endorsed by Rougognac, and he sent it to bank and had it cashed and handed the cash to Navos, and from the same he withdrew $700 and applied it to the payment of Donnes’ note, and the balance of $300 was retained by Navos. Immediately afterwards Rougognac went in to possession of the saloon and opened up a business.

In addition to this $1000 cash advanced', Maylie loaned Rougognac $400, in order to place him in funds with which to pay the arrearages of rent for the month of October, which he had assumed as a part of the purchase price, and the water and electric light bills. It was for these sums the two notes were executed in favor of Maylie, and they bear date November 6, 1885, the day after the sale to Rougagnae is dated, but the day it was consummated.

This transaction caused some comment and criticism among the creditors of Navos. .Maylie became somewhat solicitous about the collection of the Rougognac notes, and the result was the execution of the elation en jpaiement of the 16th of November, 1885, and the surrender and cancellation of the notes.

Soon afterwards Navos returned to the saloon and resumed control, to all appearances, as before the sale- to Rougognac, but really for Maylie.

A vast amount of testimony was taken in support of plaintiff’s and intcrvenor’s charges against the purported conveyances on the one hand, and in support of them on the other, and a comprehensive view of it all has left us under the conviction that the plaintiff has failed to make out his case.

It is evident, to our minds, that neither Maylie nor Rougognac were hound in any way for the payment of the debts due to the plaintiff.

There was no legal impediment existing to prevent Maylie loaning or Rougognac borrowing the $1000 with which he paid the purchase price to Navos. There was nothing to prevent Navos selling to Rougognac for cash, even though he were in insolvent circumstances to the knowledge of the purchaser at the time. R. C. C. 1986; 10 La. 594, Maurin & Co. vs. Rouquer.

A sale to one not a creditor must be considered as one made in the ordinary course of business, if made for an adequate consideration paid , in cash. The fact that a portion of the purchase money was applied to the discharge of the vendor’s debts will not vitiate it as an onerous contract. Such was the view taken of a transaction of this kind in Maurin vs. Rouquer.

Tt may well be that the act of Navos, in applying $700 of the purchase money to the payment of Donnes, was an unlawful preference given to him over other creditors, and his failure to apply the remaining $300 that he received to the satisfaction of other debts he owed, was a fraud on their rights. But neither can afford just ground for the resolution of the sale to Rougognac on a charge of simulation, without the further proof that he was but'a party interposed to take title only, for the purpose of secreting it from the creditors of Navos.

There is no proof in the record to show that Navos was not really indebted to Donnes in the sum of $700, or that that sum was not paid to him in satisfaction of his note. It is undenied that Maylie advanced to Rougognac $1000 with which to pay Navos and $400 to-enable Rougognac to pay rent and other bills. The conveyance to Maylie squared the transaction all round. It maybe true that this would have been a fraudulent transaction if Bouyoynaehadb'eenindebted' to any one else. But from the evidence we are authorized to assume that Maylie was the only one; hence, theie was no impediment to the conveyance.

It was, perhaps, the original purpose of Navos to make a simulated sale to Rougognac, but for some reason that purpose was altered and the sale, as described, was entered into.

There can be no reasonable doubt in regard to Maylie having. expended $1400 in cash in these transactions, and that Navos was the recipient of $1000 thereof, the most of which was employed by him in discharge of debts. •

The prayer of the plaintiff’s petition is that said acts “be decreed to be fictitious, false, simulated and fraudulent, and that same may be set aside and held for naught.”

Under the state of facts above recited his prayer cannot be granted. These transactions may have been made for an inadequate price; may have been intended, on the part of Navos to defraud the plaintiff and other creditors, and may have affected them injuriously, but in the total absence of any appropriate allegation or prayer, such relief was improperly awarded the plaintiff in the lower court.

The judgment is erroneous in so far as it annuls the sale and elation en paiement complained of, recognizes a lien and privilege on the property' therein described, and condemns Bernard Maylie for the payment of plaintiff’s demands, and in these particulars it should be amended.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to' reject and disallow the plaintiff’s demands for the annulment of the sale from Manuel Navos to Henry Rougognac, and the election en paiement from Henry Rougognac to Bernard Maylie, so as to disallow his demand for personal judgment against the latter for the debt of Navos, and so as to reject his demand for the recognition of his mechanic’s lien on the property included in said acts, and to dissolve his injunction and sequestration.

It is further ordered,. adjudged and decreed that in all other respects said judgment be- affirmed, and that 1he cost of appeal be taxed against the plaintiff and appellee.

On Application por "Rishearinw.

The plaintiff and intervenors apply for a rehearing on the ground, mainly, that if they “ have failed to prove the simulation,” their suit should be maintained “ under the prayer for the annulment of the contract, and for general relief.”

Our opinion quotes the prayer relied on. We considered that their sole reliance was upon proof of the chai-ge of simulation, as there ivas no alternative allegation or prayer that if the.conveyances were not simulated, they were fraudulent. Such demands have been considered as not inconsistent. In the absence of such alternative prayer, we thought it out of our power to grant such relief. But, indeed, if such -a demand and prayer had been specially made, it coaid not have been determined by us because of our want of jurisdiction, the plaintiff’s monied demand being less than $2000, and that being the test in a purely revocatory action.

Their application must, therefore, be lefused.

The defendant, Maylie, complains that he was nob relieved from the cost of the lower court, because the judgment of that court was, as to him, reversed entirely.

In this we think he is clearly correct, and our judgment should be amended.

Tt is therefore ordered, adjudged and decreed that our former judgment and decree be so amended as to tax the plaintiff and appellee with all the cost in the court a quo appertaining to the defendant and appellant, Maylie, and that as thus amended it remain undisturbed.

Rehearing refused.


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    No. 9,936.
    Parish of East Feliciana vs. Louis Levy.
    Section 1 of Act 172 of 1852 exempts from fchepayniont of parish taxes all objects of parish taxation — whether property or occupation — and whether denominated taxes or licenses.
    A license, fee or exaction — whatever name or designation is given it — when plainly imposod for the sole, or main purpose of revenue, is, in effect, a tax.

    The “ town of Lachson ’’ includes the inhabitants, as well as the property of that corporation
    A PPEAL from the Sixteenth District Court, Parish of East FeliciAx ana. Kilbourne, J.

      Stone & Browne for Plaintiff and Appelhinc.

      T. J. Kern an for Defendant and Appellee.
   The opinion of the Court was delivered by

Watkins, J.

This suit is In'ought against the defendantfor the sum of sixty dollars, with interest, as the amount he is due for parish license, on the business of retail merchant, in the town of Jackson, iu the Parish of East Feliciana, for the years 1884, 1885 and 1886—i. e., $20 per year for each oue of those years.

His answer is, among other tilings, that- he is not liable for any license tax on his business as retail merchant, because it is exempt from all parish taxation by the terms of section 1 of Act 172 of 1852.

The legality of this annual $20 license is put squarely at issue.

The evidence shows that the defendant is a retail dealer, or merchant, doing business in the town of Jackson, East Feliciana parish, and paid a State license of $20 during each of the three years mentioned.

Section 1 of Act 172 of 1852 is couched in the following language, viz.:

That the town of Jackson, in the Parish of East Feliciana, be and the same is hereby exempt from the payment of parish taxes.”

The construction which plaintiff’s counsel placed on the provision of that act is, that the property, which is situated within the corporate limits of the town of Jackson, is alone exempt, and that the occupation of the citizen is not; while the construction contended for by counsel for defendant is, that all objects of parish taxation, whether property or occupation, come within the operation of the exemption.

Simplified and refined the question is, whether or not a license is a tax.

We are of the opinion that it is. License and tax are frequently and properly employed as convertible terms, though not precisely synonymous.

In Delecambre vs. Clere, 34 Ann. 1050, we said:

“ Whilst this section conferred authority incident to police powers to regulate private markets, * * * it conferred no power to levy a tax or license,” etc.
Again: “ Licenses' or taxes may be imposed on certain branches, etc.”

In Metayer vs. Corrigé, 38 Ann. 711, we said: “ The taxing power of the city of New Iberia is its only power for obtaining revenue, by exactions levied upon its citizens, and that power is limited to the ad valorem or property tax, and the license tax.”

Those decisions are in strict accord with the principle of interpretation announced by Mr. Justice Dillon. He employs this language :

The power to license and regulate particular branches of business or matters is usually a police power ; but when licenses, fees or exactions are plainly imposed for the sole or main purpose of revenue, they are, in effect, taxes.”

2 Dillon’s Municipal Corporations, sec. 93, 609; 12 Wallace 418,Ward vs. Maryland; 29 Ann. 261, Mayor vs. Gustave Roth; 32 Ann. 923, Board of Trustees of New Iberia vs. Migues.

It was evidently the intention of the legislature to exempt all objects of parish taxation from the payment of parish taxes; and the word “ taxes ” was obviously employed in its broadest sense, and in-eludes license-taxes as well as property-taxes. It declared “ that the tovm of Jackson * * is hereby exempt,” etc. The “ town ” of Jackson certainly includes the inhabitants, as well as the property that is situated within its limits.

The defendant’s occupation comes within the purview of the legislative exemption, and the judge a quo was correct in deciding that he was not liable for the parish license claimed of .him.


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    No. 10,131.
    Successions of R. H. and Sarah J. Haile. On Opposition to Account of Administrator.
    Aii hen*, to whom slaves have been donated, is hound to collate the value of the same, although slavery was subsequently abolished.
    The circumstance that ho act of donation was executed at the time will not relieve the heir from the obligation of collating, where the donation is admitted by such heir and no one disputes his title, and the slaves, at the opening of the succession of the donor, wore not returned as its property, but were retained by the donee.
    Collation takes place in all cases in which the donation was not made hors part, or as an extra advantage, or part.
    Payments made by a father and tutor to the husband of his daughter will not he considered as donations subject to collation, where it appeai-.s that, at the settlement of a succession in which the daughter was an heiress, the father and tutor retained in his possession the hereditary share of that daughter, then a minor under his tutorship, such share nearing the amounts paid the husband, the difference being easily accounted for.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Burgess, J.

      WiekUffe <& Fisher for Opponent and Appellant.

      W. W. Leake for the Administrator, Appellee.
   Tbe opinion of che Court was delivered by

Bermudez, C. J.

The questions presented are simply :

L Whether an Hem of $6000 placed on the administrator’s account as an amount to he collated by one of the heirs (Mrs. Stewart) should be stiicken therefrom;

2. Whether a sum of $4000, not mentioned in said account,should be stated therein as to be collated by another heir (Mrs. Mumford).

Those matters are presented by the opposition of Mrs. Stewart, to which Mrs. Mumford joined issue by answer.

From a judgment dismissing the opposition this appeal is taken.

T.

Tlie evidence shows that Mrs. Stewart received, at different times, several slaves, valued together at $6000.

This appears from the inventory and from an averment in the opposition.

It is true that the inventory is not signed by Mrs. Stewart j but this is immaterial, as she admits the fact in her opposition to the account.

There is nothing- to show that she lias collated in kind by returning ■the slaves to the succession, and it does not appear that they were sold as part of the assets thereof. The circumstance that she never received any written title to the slaves is insignificant, as no one disputes her rights to them and she has apparently acted as their owner.

She charges, however, in her opposition that she is not liable foi the value of those slaves and is not bound to collate the same, but there is no reason assigned to support the correctness of this position.

If she was once the owner of the slaves, .the fact that they were subsequently emancipated does not relieve her from the obligation of ■collating. Ventress vs. Brown, 34 Ann. 457.

It does not appear that the slaves were donated hors part, or as an extra part, or advantage. R. C. C. 1231 (1309).

There is evidence that she was also donated a judgment for $6000 against her husband, who then owned some real estate worth about half that sum.

It is not, however, shown that the property was unencumbered and that the execution of the judgment could have realized anything from it. Neither is there proof that the judgment was ever satisfied to any extent.

II.

As to the claim that Airs. Mumford ought to be made to collate $4000, which her husband received from her father for her account, the record shows that the sum was thus paid in two installments: that afterwards she recovered judgment against her husband for that amount in a suit for a separation of property.

There is nothing to show that these sums were donated to her by her father..

The inference is to the contrary ; for it appears that, at the settlement which followed the partition of the property inherited by the heirs, the share of Alice M. Haile, who was then a minor, and who subsequently married E. M. Mumford, amounted iu cash and notes to $3089, which were retained by her father and tutor, who, after her marriage, settled and paid the amount with some interest accrued toiler husband. This explains the payment of the $4000 just-mentioned.

The opposition was properly dismissed.

Judgment affirmed.