author: Mark, J.

text:
    No. 799.
    William E. Rapp vs. S. M. Lowry. Sarah A. Dorsey et al. Warrantors.

      A tax assessor is not authorized to assess and advertise lands for sale, as the property of an “unknown” person, when it appears that he could, with ordinary-diligence, have ascertained who the real owner was.
    While the tax deed to land sold as the property of an unknown person is prima fade evidence of a valid sale, yet, in the absence of recital in the deed, and proof aliunde of the appointment of a curator to represent the unknown owner, and of service of the twenty-d .ys notice on the curator, the sale of the land by the assessor is absolutely void. A vendor of property can not subsequently acquire an outstanding title superior to the one he conveyed, and in virtue of this superior title oust his vendee of the property.
    APPEAL from the Twelfth Judicial District Court, parish of Eranklin. Smith, J.

      Wells & Ellis for plaintiff and appellee.

      W. W. Campbell for defendant and appellant.
   The opinion of the court was delivered by

Mark, J.

This is a petitory action, in which plaintiff seeks to recover 160 acres of land, the northwest quarter of section five, township thirteen, range eight east, of which Lowry is in possession, claiming title under Mrs. Dorsey and others, warrantors.

Rapp claims under a sale, made on the fourteenth December, 1872, for the taxes of 1871; and the collector’s deed, dated December 16, 1872, and the Auditor’s confirmatory act, of October 26, 1876. The land was assessed and sold as the property of an owner “ unknown.”

In his answer Lowry alleges that the land in controversy is known to have been the property of S. W. Dorsey, or of the estate of S. W. Dorsey; and that the true owner was known to Rapp at the time, before and since the pretended sale under which he claims to have acquired title.

The warrantors derive title from H. S. Dawson, the grantee of the government, who sold and conveyed the land, some 4000 acres, to S. W. Dorsey, in 1836, by private deed, recorded since the tax sale. They allege the nullity of the proceedings under which Rapp claims: that the land was improperly assessed as the property of persons unknown; and that it was well known to the tax collector and to Rapp, who was the real owner, from previous assessments in the name of Dorsey, by whom taxes were paid.

They aver that there was no seizure, or advertisement, or public sale of the land ; and that they have not been made parties to any proceedings had to effect the forced sale, neither by personal notice, nor in any other legal manner.

The evidence shows that Rapp knew that Dorsey owned a large body of land in the parish ; and that he assisted in making up the assessment rolls. It was proven that this land, more than 4000 acres, had been assessed to Dorsey : that he had .agents in the parish at different times, who paid the taxes ; and two tax receipts were offered in evidence showing that Dorsey had paid, personally, by drafts, the taxes for 1857, and 1858, on a valuation of $19,296.

By the constitution, art. 118, deeds made by tax collectors are to be received in evidence as prima facie valid sales ; but they maybe contradicted ; and we think the pleadings in this case make it incumbent on the plaintiff, claiming as owner, to establish something more than a prima fade title to the land, in the possession of the defendant, claiming' also to be the owner.

We do not think the assessor can assess lands as the property of a person “unknown,” without having, first, honestly endeavored to ascertain the name and residence of the owner ; and it is not probable that the ownership of a body of 4000 acres of land, which had been owned by the same person for nearly forty years, a resident of an adjoining parish, in whoso name it had been assessed, who had, through himself and his agents paid -the taxes for some years, could be unknown in the sense of the law. Section 23, of the act of 1871, required the assessors to make diligent inquiry, between February and July, in order to obtain correct information as to the taxable property in the parish, the description, and the names of the inhabitants. The testimony shows that the assessor could, without much trouble, have ascertained from residents of the parish, and from the tax rolls for former years, that S. W. Dorsey was-the owner of this large body of land.

Upon the hypothesis that the circumstances justified the assessment of this land as the. property of a person “ unknown,” certain legal formalities were required in order to effect a valid sale. Section fifty-seven, of the act of 1871, p. 120, required the tax collectors to give twenty days public notice, written or printed, to the person in whose name the assessment is made, to pay the tax, after which the collector may make a seizure, by recording a description of the property, with the amount due, in the mortgage-book of the parish in which it is situated ; and, on the fourth day after such recordation, he shall proceed to sell, without legal process, to pay the tax and all lawful costs, after advertising three times within twenty days.

Section sixty, of the same act, required; in all cases of vacant property, or when the owners were unknown or absent, and -had left no-known agent, the parish or district judge, on application of the tax col-' lector, to appoint a curator ad hoc, upon whom the notice was to be served ; and if, within twenty days after notice, the tax was not paid, the tax collector might seize and sell the property without process of court, as prescribed in section fifty-seven.

The recital in the tax collector’s deed, with reference to notice is as-follows : “ By virtue of the power in me vested by law, I did give to .‘unknown ’ due and legal notice, that he owed the following taxes, to wit,. *■ * * for the year 1871, which taxes were duly and legally assessed on the following property, to wit: the northwest quarter of section five, township thirteen, range eight east, containing 160 acres, more or less, * * * and the'said ‘ unknown’ not having paid said taxes within said legal delays, I gave said ‘unknown’ twenty days further written and printed notice to pay said taxes, and the said ‘ unknown ’ still failing to-pay-said taxes, I proceeded to make seizure”’ etc.

There is no mention of the appointment of a curator acl hoc, and, what is more important, there is no proof in. the record of the appointment of a curator ad hoc as required by section sixty- of the act. The tax deed is evidence prima facie of a valid sale; but in the absence of recital in the deed, and of proof aliunde of the appointment of a curator, and the service of notice on him, the sale o£ the land of an owner non-resident and “ unknown” is not valid : it is absolutely void.

It is proven in this case that on the 13th of April, 1870, Rapp sold and conveyed to Lowry, the defendant, his claim and interest in and to lands which he had purchased at tax sales, containing near 1300 acres, supposed to be in sections five and eight of township thirteen, range eight east. Of course this included all of the two sections. Lowry says-it included the quarter section in controversy, as it did, of course, and much more besides. It was called the Routh place, because John K. Routh had settled on it; but Lowry says that he gathered from his conversations with Rapp that Rapp knew that it was part of the Dorsey tract. Rapp himself says : “ It was my understanding that Routh settled on the Dorsey land, I believe on a part of the 4000-acre tract. After I saw Dorsey, in 1869 or 1870,1 did not know who the land belonged to„ I proposed buying from him the 4000-acre tract, or part of it. He remarked to me that he could not sell it then, that he would correspond with parties in Maryland that had an' interest in the land, and he would let me know : and he remarked, 11 don’t own the land myself.’ * * *• In my conversation with Dorsey he made an impression with me that he had an interest in the land. Did not know what interest, nor in what, part of the land.”

He also states that the land which he purchased for taxes, in 1867, the same which he sold to Lowry on the 13th June, 1870, was assessed to John K. Routh ; and that he thought it" was Dorsey’s land because he had seen it assessed to Dorsey “ prior to the time that I had seen it. assessed to Routh.”

The deed from Rapp to Lowry was recorded on the 16th of July, 1870, and Lowry was in possession under that deed at the time' the land was assessed, and 'at the time it was sold as the property of a person “ unknown,” of which Rapp could not have been ignorant.

If the tax sale and title under which Rapp claims were otherwise valid, there would still be an insuperable barrier to his recovery of the land from Lowry. If this land were properly assessed and sold as the property of a person “ unknown,” it was not Lowry’s property; and it must have been the property of some person “ unknown ” at the time Rapp sold to Lowry: and Rapp has simply acquired, since his sale to Lowry, a title which was outstanding at the time that sale was made, superior to the title which Rapp conveyed to Lowry. It is shocking to morals, and to common honesty and decency, it can not be tolerated in. law, that a. vendor, even without warranty, should subsequently acquire a title superior to that which he convéyed to his vendee, and attempt to-•oust his vendee under that title. The exclusion of warranty in the deed from Rapp to Lowry exempts Rapp from responsibility to Lowry for ■eviction by any other person under a superior title; but it does not release Rapp from responsibility for any disturbance of Lowry by himself, •or by any other person under a title emanating from him, outstanding at the time of his conveyance to Lowry. If there be such superior outstanding title, Lowry might be evicted under it; but not b.y Rapp ; and •any title which was outstanding at the time Rapp conveyed to Lowry, and which Rapp has acquired, or may hereafter acquire, to the land conveyed by him to Lowry, must inure to the benefit of Lowry. It seems -that Lowry had no great confidence in the title conveyed to him by Rapp, and he merely fortified himself by acquiring a title from the owners, deriving from the Government.

The district judge erred in maintaining the title set up by Rapp and -awarding to him the land which he had conveyed to Lowry.

The judgment appealed from is therefore annulled, avoided, and reversed ; and it is now ordered, adj udged, and decreed that the demand of plaintiff, appellee, be rejected, and that his suit be dismissed; and that he be condemned to pay the costs of this appeal and the costs in the district co.urt.


source: Caselaw Access Project

author: Spencer, J.

license: Public Domain

text:
    No. 849.
    Chas. D. Gilmore vs. B. F. Logan et al.
    The debt due for services as an agent or mandatary is only prescribed in ten years. “When one obligates liimselt in writing to pay a certain sum on the happening of a certain event, the obligation is only prescribed in ten years.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. .Boarman, J.

      Land & Taylor and Kennard, Howe & Prentiss for plaintiff and ■appellant.

      Nutt & Leonard for defendant and appellee..
   The opinion of the court was delivered by

Spencer, J.

Plaintiff, who was a member of the firm of Hosmer & •Co. of Washington City, sues as owner and transferee of the rights of said firm in and to a certain claim for $5000 against the defendant, which arose as follows: He alleges that said firm were “ the agents and mandataries of the defendant,” under a mandate, to. prosecute before ■Congress and the departments at Washington a claim, for restitution of what was known as “ the arsenal property,” in Shreveport; that they procured the release of said property about March, 1873, and were by written contract with defendant to receive therefor $5000 as compensation. ...

The defendant answered not- by general denial, but specially “ admitting his signature to the note” and averring “ that plaintiffs did not render the services for which the note was given', as the United States government surrendered its claim to the property which plaintiff was employed to recover, without action on plaintiff’s part, and that the consideration has failed.” This special defense waived the general issue — ■ admitted the employment as alleged — the terms of that employment— its purposes, etc. See Burbank vs. Haas, 9 An. 528; 11 An. 103; 19 An. 461. But, outside of this implied admission, the evidence fully sustains plaintiff’s allegations. The power of attorney under which plaintiffs acted, of date fifteenth May, 1872, constituted them his true and lawful attorneys in his name, place, and stead, to prosecute before the departments or Congress, the claim in question, “ with full power of substitution and revocation, etc.”

The defendant abandons all defense on the merits, and pleads the prescription of three years against plaintiff’s claim, under article 3538 C. C., whereby actions of attorneys for fees are prescribed by three years.” This is the sole defense made before the court. It was sustained by the judge a quo, and plaintiff appeals.

First — It is manifest, as well by the implied admission of defendant as by the proofs in the record, and especially by the contract of mandate referred to, that Hosmer & Co. were employed as agents and mandataries, and not as attorneys-at-law. That their mandate was not in connection with matters before the courts, but before the departments and Congress.

Second — The very article of the Civil‘Code under which defendant invokes the prescription of three years says : “ This prescription only ceases from the time there has been an account acknowledged, a note or bond given, or an action commenced.” Even if plaintiffs had been employed in their capacity as attorneys-at-law (which they were not), defendant took their claim out of the three-years prescription by the following bond or written obligation :

“ Whereas, I have made application to have restored to the heirs of the late Benjamin F. Logan, deceased, late of Shreveport, State of Louisiana, a tract of land situate in said city of Shreveport, through Messrs. Hosmer & Co., attorneys-at-law, of Washirgton City, D. C., and have empowered them to prosecute the claim of said heirs before the War Department or Congress. Now, for and in consideration of services rendered and to be rendered in the premises, I hereby agree to pay my said attorneys the sum of five thousand dollars ($5000) when the land shall have been restored to said heirs, which said sum shall include all amounts to be paid for said services, and in case of failure to recover said land for said heirs I am to pay nothing ; the. words now in possession of the United States erased before signing.

“ B. P. Logan.

“ Witnesses:

“ Monteobd Jones.

“ A. H. Leonard.”

This is an absolute promise to pay a specific sum of money upon the happening of a certain event — and is barred only by ten years under C. C. art. 8544. The cases in 12 R. 28 and 3 An. 458 are inapplicable Fere where there is a written agreement fixing absolutely the amount to be paid, and the condition upon which the payment is to be made.

Defendant dismissed his call in warranty, and we are not called upon to pass upon it.

The plea of prescription was improperly sustained. The evidence fully sustains plaintiffs demand. Indeed, it is not contested.'

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled and reversed, and it is now ordered and decreed that plaintiff, Chas. D. Gilmore, do have and recover of the defendant, B. P. Logan, the sum of' five thousand ($5000) dollars with five per cent interest thereon from fourth March, 1873, and all costs of both courts.


author: Manning, C. J.

text:
    No. 791.
    N. Fass vs. Rice Bros. & Co.
    The ctuestion ol simulation when put at issue in any ease, will he determined by a review of all the surrounding facts.
    APPEAL from the Twelfth Judicial District Court, parish of Catahoula. Smith, J.

      Soatner & Mam for plaintiff and appellee.

      Wade B. Young for defendants and appellants.
   The opinion of the court was delivered by

Manning, C. J.

Isaac B. Pass had been a merchant, or trader — got in debt — and broke. Shortly afterwards a new store was opened, wherein business was earried'On in the name of N. Pass thus; — “ N. Pass per I. B. Pass agent.” Isaac had a son, by name Nathan. It was he that was meant by N. Pass. The lad was not of age, but he had already made a precocious start — had contracted debts, and had pleaded minority when sued for them. He manifested a vicious propensity to plead it again, and reproached the defendants’ lawyer for having taught him the device. .

The steamboat, Tensas Belle, became the property of these people, or one of them. The title was in Nathan. The defendants had.a judgnient against Isaac, upon which they issued execution, and had the boat seized. The present plaintiff in joins, and the defendants attack the sale and title to Nathan Fass as simulated, and justify the seizure, alleging that the boat belongs to Isaac Fass, and was bought with his money actually made by his business, or borrowed by him.

Simulation'is rarely susceptible of direct and positive proof. At best, you can resort only to the proof of other facts, from which there is fastened upon the mind the conviction that the simulation is also a fact. The statement of the relations between the parties, and their previous history, gives strong colour to the charge. To rebut it, the plaintiff relies upon Ben Gerson, his New-Orleans correspondent. He commences by saying he does not know the plaintiff personally, but he has been dealing with his father as his agent — that plaintiff owes him, and the debt was contracted by his father (his agent) for plaintiff’s account. He puts it in another form — the debt was incurred through Isaac B. Fass, the agent of N. Fass. The credit was extended to N. Fass through Isaac B. Fass his agent. He looks to Nathan as the party owing him. Nathan never appeared as an actor in the business. It was all done through his father who was his agent. He extended the credit to Nathan individually, and upon the experience of Isaac, which led him to believe that he could meet the payment of the same. He had no security of any kind.

It is apparent that this witness was giving credit to Isaac Fass alone. He did not know Nathan, but he did know-that Isaac, for some cause, was doing business in this roundabout way. He repeats in three different ways that Nathan is his debtor, whom he has never seen, who has furnished him no security, and who, so far as he knows, is not in existence, but it is on Isaac’s experience that he relies for repayment. The same witness’ depositions, taken in another cause, are in evidence, wherein he is more explicit. I considered, he says, the old man Isaac as being badly crippled in business, and not being able to use his own name, took that of his son to do business under. He relates the manner in which his business connection with Fass commenced. He came to me two or three years ago, and represented himself as the agent of Nathan Fass, and obtained of me advances upon that representation.

That is to say, upon Isaac’s representations that he was the agent of Nathan, whom the witness did not know, had never heard of, and of whose ability to answer a judgment he was ignorant, and of whose integrity he knew nothing — the witness, bfeing a business man in New Orleans, incontinently gave credit to Nathan, and loaned him money.

In another place he states the actual facts without prevarication;— my view of the relations existing between Isaac and Nathan Pass was, the real man was Isaac B., who could not conduct business under his own name, and for that reason had adopted the name of his son Nathan for the purpose of doing business.

That is our view also. The steamboat was the property really of Isaac, the debtor of the defendants, was property seized by them, and the plaintiff’s injunction was improperly granted.

There seems to be a popular notion, and it has crept into the profession, that a man has but to pretend to carry on business in another’s name, while he is actually sole owner and manager, to succeed in screening his property from the pursuit of his creditors. There is really no excuse or justification of this concealment, and the practice will not find encouragement from the manner in which we deal with it.

The plaintiff prays for damages. We shall give them to the defendant.

It is ordered and decreed that the judgment of the lower court is avoided and reversed, and that there be judgment in favor of the defendants, dissolving plaintiff’s injunction, and for ten per centum damages and costs.


text:
    No. 859.
    White & Barrett vs. Wm. Heffner, Sheriff, et al.
    A partnership is not within the language or intendment of the exemption law. and hence none of the property of a partnership is exempt from seizure.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Boorman, J.

      Hicks & Hicks for plaintiffs and appellants.

      Nutt & Leonard and B. J. Looney for defendants and appellees.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiffs in join the execution of a judgment in favor of G. W. Dillard for one thousand dollars and interest, upon which there has been credited a payment of seventy-one dollars. The execution issued at the instance of Dillard’s executrix, and the tutrix to his minor heirs, and seizure was made of “ a power press, six cases of type, galleys, rules, five imposing stones, one desk, two stoves and pipe, three desks, and one table.”

The allegations of the injunction are that the plaintiffs are'practL cal printers,-and that the articles of property seized, worth two thousand dollars, are exempt from seizure because they are the tools and Implements of their trade, and. necessary to its exercise, by which they gain a living.

The plaintiffs compose a partnership, the business of which was formerly to print and publish a newspaper, and to do job-work. White swears the-daily newspaper had ceased to be published sixteen weeks before the seizure.. Then it became a weekly, and that expired on 80th.1 of June. In another place he says he commenced the weekly after the seizure. The seizure was made August 9th.

The firm continued to do job-printing after the newspaper was no longer issued, and one of them testifies that the annual receipts from their entire business were three thousand dollars. The attorney, who ordered the seizure for Mrs. Dillard, seems to have been careful to instruct the sheriff not to seize the material of the job-office, but when that officer requested White to point out such things as belonged to that department, he refused to give him any assistance, and warned him that it was a government office he was entering, and he might get himself into trouble by seizing government property. It appears one of the firm was collector of -the port there.

The fact appears to be that no portion of the materials seized belonged to either department exclusively, except perhaps the imposing stones. The press, galleys, most of the type, rules, were used indiscriminately for either the job-work, or the newspaper. A printing establishment in such a country-town as Shreveport would not need two separate and distinct departments. The stoves would not appear to belong to any printing business.

Some testimony was taken as to the unprofitableness of the newspaper business in Shreveport, probably with a view of showing that the plaintiffs could not have made their living by it. But one of them has sworn to the amount of annual receipts, and also that they owed for rent, and materials, and paper. The lessor’s claim is for $850, the material man’s is $220, and the amount of the debt for paper is unmentioned. It is very easy to see how one can support a family on a business as large as this is shown to be, when all the receipts are consumed at home, and none are applied to the payment of debts.

The claim of exemption of this property from seizure is based on art. 644 of the Code of Practice, and we are referred'to an express adjudication of this court on the nature and extent of the exemption so far as it applies to a printer. Prather v. Bobo, 15 Annual, 524.

It is not needful to say in this case whether we think a press, and material for printing, can properly or reasonably be included in those implements, that are necessary for the exercise of a printer’s trade or calling. If they are, ninety-nine hundredths of the printers are ‘ exercising their calling ’ without the implements that are necessary to do it, and notwithstanding, they make a living.’ It is sufficient to say, that the exemption is claimed here by a partnership, which is an ideal being, has no living to make, and is not within the language or intendment of the exemption law, which, being in derogation of the general law that all of a debtor’s property is the common pledge of his creditors, must be construed strictly.

We are warmly urged to carry out in a liberal spirit the enlightened policy of modern legislation, which seeks to protect tire citizen from pauperism. An enlightened policy, which teaches the citizen the weight of an obligation by enforcing its performance, cannot look without dismay at the spectacle of any debtor, keeping secure in his grasp property, not legitimately or necessarily included within the terms of the law which accords it to him. The abrasion of the moral sense of the general public, occasioned by frequently witnessing this successful defiance of just creditors, is a greater harm than the private suffering of an Isolated individual here and there, and enlightened statesmanship looks only to the general good.

The judge below dissolved the injunction with one hundred dollars damages. His judgment is affirmed.


author: DeBlakc, J.

text:
    No. 811.
    Mrs. C. S. Willis vs. E. M. Ward, Tutor.
    A judgment of separation of property between husband and wife which is absolutely void, may be assailed directly, or collaterally, by any one who has an interest to do so.
    A judgment of separation of property in favor of the wife, based exclusively on the incomplete testimony of her husband, is, as to third persons, an absolute nullity. The husband is incompetent to testify in a suit brought by the wife for a separation of property.
    ^PPEAL from the Parish Court of Franklin. Zim, J.

      J. W. Willis, Jr., and A. W. Moore for plaintiff and appellee.

      S. L. Mam for defendant and appellant.
   The opinion of the court was delivered by

DeBlakc, J.

J. D. Montgomery and his wife died in the parish of Franklin, leaving two minor children. At the death of the husband, the wife was confirmed in the tutorship of said children, and — at her death— the defendant, E. M. Ward, was appointed as their tutor by the judge of probate of their parents’ last place of domicil.

John W. "Willis applied for and obtained the administration of the succession of J. D. Montgomery, caused to be sold the property thereto belonging, and — at one of the sales made during his administration of ¡said succession, his wife became the adjudicatee of a large tract of land for the price of two thousand two hundred and fifteen dollars, which— according to a declaration in the deed from the sheriff to her — she paid on the day of the sale. This was on the 30th of March 1870. On the 23d of May 1876, that sale was confirmed, in a monition proceeding, by the probate court of the parish of Franklin. Ward — as tutor — opposed that confirmation, but, on account of the unforeseen sickness of his attorney, he was not represented at the trial of Mrs. Willis’ application for the homologation of said sale, and his opposition was defeated.

On the 24th of November 1868, Mrs. Willis sued her husband for the ■dissolution of the community existing between them, a separation of property and the recovery of the sum of eighty dollars, the alleged price of two feather beds, one bureau, one table, one mirror, one wasbstand ¡and a lot of crockery sold by her husband and which belonged to her.

On the same day — the 24th of November 1868 — John W. Willis answered his wife’s demand by a general denial, and a judgment was rendered in her favor, read and signed, allowing all that she asked. To ■such a course, however precipitate it was, there can be no serious objection. Beal rights may be urged, established and judicially ascertained ¡and recognized in the space of a moment.

In this instance, how did the wife prove the existence, nature and-extent of’her rights? By exclusively her husband’s answers to three interrogatories propounded to him. He swore that the effects claimed by his wife have been sold by him, that the price of those effects was received, but by whom? He did not say, nor did he say that he was ■then in an embarrassed condition.

In the case which is now before us, Mrs. Willis charges that Ward— In his pretended capacity as tutor of the children of J. D. Montgomery, is interfering with and disturbing her in the possession of the land which ¡she acquired from the succession of said deceased, and — on that account — she prays that the decree by which he was appointed tutor of ¡said children be declared a nullity and he removed as such.

The cause which prompted Mrs. Willis to bring this action against Ward, is not that he has been careless of the minors’ interest, or in any way unfaithful in the discharge of the duties imposed upon him by his appointment, its acceptance and the law, but for the reason, which she lierself states, that Ward claims as belonging to the minors, the tract of land herein referred to and to which she — Mrs. Willis — considers that ¡she has acquired a title. This is her only reason: as to the grounds on which she relies to procure his removal, they are : that, at the date of his appointment as tutor:, the children of J. D. Montgomery.were not residing in the parish of Franklin, but with their grandfather — in the State of Mississippi, and that — as to.them — the Louisiana court by which the appointment was made was without jurisdiction ; besides— that no one but their grandfather was then entitled to the tutorship conferred on defendant...,, .

To plaintiffs action, Ward opposed the exception that she had not. been authorized, by her husband to institute this suit, and the plea of “res judicata.” ..His exception and plea were tried and overruled, and he answered. In bis .answer, .he asserts the legality of his appointment, alleges that Mrs. Willis’ judgment against her husband was obtained with the latter’s cons.ent, without proper evidence, for the express purpose of defrauding the minors Montgomery, and that said judgment should be pronounced a nullity.

Mrs. Willis contends that the question raised by defendant as to the validity of her judgment against her husband was already raised by him and determined by the Court in the opposition which he filed to her application for the confirmation of the sale from, the sheriff to her; and — to that branch of his demand — she, in turn, filed the exception of res judicata.

Plaintiff’s and defendant’s demand were both rejected. Defendant-alone has appealed : he contends that the judgment of the lower court should be amended, plaintiff’s plea of res judicata overruled, and the decree which separates her in property from her husband declared a nullity. This was partly done below : the plea of res judicata was one of the defences of Mrs. Willis against the tutor’s action, and — in this-case — though the whole of her demand was denied and rejeetéd, she does not ask either the reversal or amendment of the decree by which it was done.

Plaintiff’s counsel objected to the introduction of any evidence tending to show the invalidity of the judgment which she obtained against her husband, on the ground that said judgment could not be attacked collaterally : his objection was not sustained, the evidence received, and her counsel excepted to the decision of the court on this point. For at least, one reason, that exception was not well taken : defendant, after having alleged and established an interest so to do, had — in positive terms— assailed as being invalid and as having been rendered on illegal evidence, the j udgment of Mrs. Willis against her husband, and she — on the trial, as a part of her own evidence — offered the entire record of the suit in-which that judgment was obtained, including the testimony therein contained.

That judgment based — as it is — on exclusively the incomplete testimony, or rather the willing confession of her husband, who — the Code so expressly provides — oan not be a-witness for or against his wife — art. 2281 (2260) — constitutes but a private agreement between them, decides nothing as to third parties, and — as to the latter — “ has only the effect •of a transaction made in ah authentic form.” ‘ Such a judgment is — as to all, except perhaps those who have consented to its rendition — an ■absolute nullity which can be urged directly or collaterally,-by any one who has an interest so to do, whenever it is presented as the basis of a disputed right or contested action, and more particularly when — as in this case — the testimony or confession on which it is rendered would be Insufficient to sustain its validity, even if given or made by any other than one whose testimony could have been heard, received and considered, but in disregard of a prohibitory law. 2 A. 907 ; 3 A. 34 and 35 -, 4 A. 276 ; 6 A. 2 ; 12 A. 426 ; 29 A. 732.,

Were it otherwise, plaintiff resides in Richland, defendant in Franklin, and — under the circumstances — the latter could have instituted an action in reeonvention against the former in any cause, although such demand be not necessarily connected with, or incidental to the main •cause of action.

O. P. 375.

It is in the power of litigants, by their pleadings, by the course they pursue on the trial of their suits, to present or avoid issues, to close the door against or open it to this or that evidence, but the issue once presented can not be limited so as to serve the purposes of only one of the litigants, the door opened to plaintiff’s evidence can not be arbitrarily ■closed against defendant’s rebuttal, and those who stand before a court of justice, one asserting, the other denying the validity of a judgment, can not — by a tardy and inconsistent exception — destroy the inevitable effect of their own pleadings, their own evidence, and prevent the court from passing upon the asserted and denied validity.

In a suit brought by the wife against her husband for- a separation of property, the testimony of the husband is not admissible to sustain any part of her demand. It follows that, in the suit of Mrs. Willis against her husband, no competent witness has testified, no legal evidence has been received, and that the judgment rendered in her favor was and remains an absolute nullity.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended, plaintiff’s demand rejected, and the judgment rendered in her favor and against her husband, by the parish court of the parish of Franklin, on the 24th of November, 1868, declared a nullity..

It is further ordered, adjudged and decreed that, as amended, the judgment of the lower court is affirmed, at plaintiff’s costs in both courts.


author: Manning, C. J. Egan, J. Manning, C. J.

text:
    No. 434.
    John Frank Pargoud vs. Mrs. Sarah Richardson.
    This court will not order the production oí an original act, when it is not necessary to the decision of the case.
    Where a defendant who has enjoined an order of seizure and sale appeals from the-decree rendered in the injunction suit, he is not thereby estopped from also-appealing from the order of seizure and sale, when it appears that the grounds set up in the injunction suit are not the same as those presented in the appeal from the order.
    It is not necessary that any United States internal revenue stamps should be affixed' to a note, or a mortgage, in order to make it competent evidence in our State-courts.
    An order of seizure and sale may issue on a note and mortgage when neither has any United States internal revenue stamps on it. Neither the allegation nor proof of a previous demand for payment, or presentment at a particular place is necessary to obtain executory process, although the note is payable at such a place, when the note is secured by a mortgage importing a confession of judgment.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Ray, J.

      8. D. MoEnery and Cobb & Qunby for plaintiff and appellee.

      W. W. Farmer for defendant and appellant.
   On Motion.

The opinion of the court was delivered by

Manning, C. J.

The appellee moves for an order to the Recorder of Ouachita parish, commanding him to send up the original Act of Mortgage, a certified copy of which was produced before the judge of the-lower court as part of the evidence upon which he granted the order of seizure and sale. The object of the motion, as disclosed in it, is to enable this .court to ascertain from personal inspection of the Act, that it has now affixed to it all the United States internal revenue stamps that the Act of Congress requires.

The motion is resisted on the ground that, whatever quantity or amount of revenue stamps may be now upon the Act, there were not enough of them upon it at the time the order of seizure and sale was made to give it validity, and that we can only consider its then condition.

The motion is based on' art. 917 of the Code of Practice, which empowers this court to direct orders to public officers to produce before it original papers, when they may be necessary to the decision of a pending cause.

We do not think the inspection of the paper in question is necessary to the decision of this cause, and we should do a vain and useless act in ordering its production before us, and therefore

The motion is denied.

Dissenting Opinion.

Egan, J.

In my opinion, the order prayed for should be granted. The plaintiff’s motion sets forth that the production before this court of the original paper is important to the determination of the cause. This is sufficient to entitle him to his order under the 917th art. of the Code of Practice. The questions as to the effect of the document when produced, or whether it can have any effect upon the present appeal, are matters which do not come properly before us on this motion, but would be the subject of consideration when the appeal is heard. The granting of the order to produce could not affect the interests of the defendant if the paper could not be considered when produced, while on the other hand its production might be both necessary and proper if it could be considered on the appeal.

On Rehearing.

Manning, C. J.

Pargoud sold the Ingleside plantation to Mrs. Richardson, and retained the vendor’s lien and a special mortgage to secure the payment of the purchase price. The first maturing note not having been paid, he obtained an order of seizure and sale of the property. This appeal is from that order. It was heard and decided four years ago. 26 Annual, 672. The defendant prayed a rehearing, which was not acted on by our predecessors. Two dissenting opinions were read, but are not published, maintaining the defendant’s position of the invalidity of the. mortgage for want of stamps. We found the case in that condition last year, and granted the reheariDg.

The vital question in the case is presented by the objection that neither the note, nor the mortgage, were valid, or receivable in evidence, for want of the United States internal revenue stamps required by the Act of Congress. The note was unstamped. The mortgage had not as many stamps as the Act required.

The plaintiff’s counsel appears to rely upon that clause of the U. S. internal revenue law, which permits the non-stamping a note when it is secured by a mortgage, and the mortgage is properly stamped; and upon another clause which allows a mortgage, which has not upon it the requisite quantity of stamps, to be taken before a revenue officer and to be stamped by him with the additional number necessary under the law, which subsequent stamping validates it, and makes it retroactive.

To this, the defendant’s counsel replies that the appeal is from the order of the judge, made upon the evidence before him then — at the moment it'was granted — and not upon the evidence, as it might have been afterwards transformed by the cabalistic touch of the revenue officer. And he argues that if the evidence in its then condition was insufficient to authorize the order of seizure and sale, no subsequent addition to it, nor after-cure of its then inherent defects, could validate an order which was unlawful when it was made, because the proper legal evidence was not before the judge when he made it.

It is obvious there can be no evidence before us of any subsequent stamping of the mortgage, because the record contains only the evidence on which the judge a quo acted, and we have refused the plaintiffs motion to have produced the original Act of mortgage from the Recorder’s office.

The whole of this dispute is to our minds outside the real question, which is, whether any U. S. internal revenue stamps whatever must be affixed to a note, or a mortgage, in order to make it competent evidence in our State courts. Our convictions are very clear that none are necessary.

The argument, made with great zeal and earnestness before us, in support of the contrary proposition, is that the Constitution of the United States confers upon Congress the power to lay and collect taxes, duties, imposts and excises to pay the debts of the federal government, and in express terms makes that Constitution, and the laws of the United States which shall be made in pursuance thereof, the supreme law of the land, adding that the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. Const, art. 1. sec. 8. art vi. sec. 2. The conclusion drawn is that as Congress, in providing for the internal revenue of the general government, required that notes and mortgages should be stamped, and punished the failure to comply with its mandate by prohibiting their reception as evidence in any court, and even by pronouncing their nullity — therefore every State court must enforce that law without question of its validity, or of its proper application, being bound thereby.’

By the s.ame argument we should be compelled to use th'e trial by-jury in any civil cause where the value in controversy exceeds twenty dollars, (7th amendment to U. S. Const.) and we should be prohibited holding any one to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury. (Amendment Y.) And yet we know that civil causes, are, and have been always, tried in this State without a jury, regardless of the value in controversy; and that persons are, and from the beginning of our State government, have been held to answer for many infamous crimes, not capital, upon an information filed by the prosecuting officer, and without the intervention of a grand jury..

Since Maurin v. Martinez, 5 Mart. 436, it has not been doubted that the provisions of the federal constitution relative to juries refer only to trials in the federal courts, and do not apply to the State tribunals. And earlier than then, it was held that the amendment to the federal constitution, which requires the-intervention of a grand jury relates only to crimes cognisable by the United States, and to criminal 'proceedings in Its courts : Territory v. Hatick, 2 Mart. 88.

When then- the Congress prohibits' a court from receiving in evidence any- unstamped note or mortgage, we must assume that it has reference alone to the United States courts, as its prohibition is only obligatory upon them.

It is said however that nothing is left to inference, since the act of Congress declares that these unstamped instruments are void — that an unstamped note, for instance,-is not a valid obligation, and its payment cannot be enforced. The construction of several of the State courts of this branch of that act is, that the mere fact that the instrument is insufficiently stamped does not render such instrument invalid, but the intent to evade the act does. Sawyer v. Parker, 57 Maine, 39. And in a criminal prosecution it was ruled that the instrument was not void for the want of a stamp in such sense, that an indictment for its forgery would not lie. Cross v. People, 47 Ill. 152. It would seem that unstamped instruments, or instruments insufficiently stamped, are thus supposed to be valid or void, not because they have or. have not stamps upon them, but only when the omission to affix them proceeds from a fraudulent intent; and in accordance with this idea, it was held that the subsequent affixing the stamp negatived the intent to evade the act. Craig v. Dimock, 47 Ill. 308. Not a safe or certain doctrine, it would seem, but one born of a wish to recognise a doubtful power, and at the same time to restrict it within such limits that its exercise would not impinge the authority of the State. It is not needful for us to consider this act in any other aspect than its attempt to impose rules upon the State courts as to the admission of -evidence. It is not within the province of Congress to enact rules regulating the competency' of evidence upon the trial of causes in a State court. The power to lay taxes is undoubted, but it is not broad enough to include the authority to declare that a written instrument of any kind shall not be received as evidence in a State court unless it is stamped. That is a restriction which appertains alone to the legislative authority of the State. In domestic transactions, in no manner connected with the general government, the State has the exclusive power to establish the rules of evidence in her own courts. And this conforms to the decisions of the highest courts in many of the States. Bowlin v. Commonwealth, 2 Bush, (Ky.) 5. Boston v. Nichols, 47 Ill. 353. Hanford v. Obrecht, 49 Ill. 146. Clemens v. Conrad, 19 Mich. 170. Black v. Nettles, 25 Ark. 606. Our impression is that the same ruling has been made in Massachusetts and Maryland, but we have not now access to the authorities.

Our Codes have authorized orders of seizure and sale to be made upon the production of the note, evidencing the debt, and a certified copy of the authentic act of mortgage providing for its payment and' have defined an authentic Act. Civil Code, art. 2231 new no. 2234, arts. 3360 et seq. new nos. 3397 et seq. Code of Prac. arts. 61 et seq. The instruments offered in evidence by the plaintiff conform to these requirements of our law, and it is not necessary or proper to look beyond, or outside of that law, to ascertain upon what evidence the judge couldi legally issue the order.

The only other ground of objection to the order was, the note .was made'payable at a particular place, and no evidence in an authentic form was before the judge that the note had been presented at that place. It is now settled law that a mortgagee, with a title importing a confession of judgment, may immediately seize the property, if in the hands of the debtor, without proof of failure of payment. McDonough v. Fost, 1 Rob. 295. Neither the allegation nor proof of a previous demand for payment, or presentment at a particular place, is necessary to obtain executory process, although the note is payable at such place. Ripka v. Pope, 5 Annual, 61. Ibid. 187. M’Calop v. Fluker, 12 Annual, 551. Stokes v. Forman, Ibid. 671. Catalogne v. Alva, 13 Annual, 98.

The judgment of our predecessors was an affirmance of that of the district court. We do not place ours upon the same grounds which they did, but we reach the same conclusion.

It is ordered and decreed that the former judgment of this court remain undisturbed.

       The opinion on the original hearing will be found in 26 Annual, 072.


author: DeBlanc, J.

text:
    No. 867.
    W. E. Hamilton et al. vs. Nellie Hodges, Tutrix, et al.
    An ordinary partnership can not be held liable for the individual debt.of one of its members because of an agreement to that effect between that member and his creditor, unless it be proved that the momberwas authorized to make the agreement by his copartners, or that his agreement was ratified by them, or that the partnership was benefited by the transaction.
    Parol evidence is inadmissible to prove a promise to pay the debt of a third person. The ratification of a contract can only be deduced from facts, when those facts evince clearly, and absolutely, the intention to ratify.
    APPEAL from the Eleventh Judicial District Court, parish of Caddo. Boarman, J.

      N. G. Blanchard for plaintiffs and appellees.

      W. H. Wise for defendants and appellants.
   The opinion of the court was,delivered by

DeBlanc, J.

In March 1870, two brothers — John J. .and. Jackson B. Hodges, now dead, formed a planting partnership which lasted until the fall of 1873. "W. E. Hamilton, one of the plaintiffs testified that John was the business manager of that partnership, and fhat Jackson had very little to do with it. In the early days of March 1870, plaintiffs-opened separate accounts with the aforesaid partnership and with each of its individual members, and — on the 18th of August 1871 they received from John J. Hodges, in full settlement of their accounts, two notes, one for $2242.59c, which fell due on the 1st of March 1872, and was paid out of the proceeds of cotton grown by and belonging to the-partners, the other for $2421.49c, which matured on the 1st of March 1873.

This suit is brought on the last mentioned of said notes, which is in these words : “ We promise to pay to the order of Hamilton & Oo. twenty four hundred twenty one 49-100 dollars, with interest at 8 per cent from maturity until paid, value received.

(Signed) Jwo. J. & J. B. Hodges,

and “ Jno. J. Hodges.”

The executor of the last will of Jackson B. Hodges, avers that said' note was not signed by the deceased, but by his brother John, without said deceased’s knowledge or consent, and for an old indebtedness of John to plaintiff, which accrued partly before and partly after they became partners, and did not enure to the benefit of their partnership.

To this defence, plaintiff’s reply is: that the contracting of the indebtedness was authorized, and — if it was not — that it did enure to the-benefit of the partnership, and that the settlement of that indebtedness-by the delivery of the two notes herein mentioned was ratified by Jackson B. Hodges.

As to the fact of the alleged ratification, what evidence is relied upon? It was shown that, in the statements of accounts rendered to the partnership, mention is made that the individual liabilities of its members was merged into the partnership accounts, which. — according-to W. E. Hamilton’s declaration — their firm always rendered .to John J. Hodges, who — it seems — had complete control of the plantation. At his-death, they were found among his papers in the house occupied by the-two brothers. They were there in a desk, but to whom the desk belonged, by whom it was used, whether it was locked or unlocked, whether Jackson had access to it, or ever opened it, the witness was not. asked and did not tell. That circumstance is not even an entire link,, but merely the fraction of a link in the chain of presumptions which, would justify the conclusion that Jackson B. Hodges has authorized that merging of accounts or ratified the settlement thus made by his-brother.. ...

Were Hamilton and Co., or John J. Hodges, empowered — the first-to merge, the latter to sanction the merging of three distinct liabilities, ’.and to burden one of three debtors — the partnership — with the separate liabilities of the two others ? They were not.

“No member of an ordinary partnership can bind his co-partner, ■unless he was given the power to do so, either specially or by articles of partnership, or unless it be proved that the partnership was benefited by the transaction.” R. C. 0. 2872 (O. C. 2843) 2874 (2845).

In Dumartrait, ad., et al. vs. Gay et al, this court properly held ■that, “when co-partners in an ordinary partnership deny that they are liable for the contract made by one of them, the creditor, who seeks to bold them responsible under it, must prove one of two things: either ■that the contract was authorized by them, or that it enured to their benefit.” In this we cannot see any great hardship. It is the duty of every one who deals with a member of an ordinary partnership who •shows no authority to bind his co-partners, to know at his peril that the transaction is to enure to the benefit of the partnership.

1 R. R. 64 — 5 M. 684 — 1 L. 3906 L. 30413 L. 19714 L. 364 — 15 X. 496.

“ Where any creditor of one member of a-firm takes from his own debtor, either in payment or as security for his debt, the paper of the ■firm, the presumption of law is, that he took it in fraud of the firm: and without proof of their interest, or their assent and authority, which may be circumstantial, the firm will not be held.”

Parsons on Contracts (6th ed.) vol. 1,184.

Hamilton and Co. either knew, or — by merely inquiring — could have ■ascertained that John J. Hodges had no authority to bind the partner■ship for a debt which it had not contracted, which — on the.books of the -creditor — was not charged against it, but charged against other parties, by special instruction from them to the creditor. In so doing, they participated in the execution of an act, which they knew, or could — without •difficulty — have ascertained was, not only not authorized, but unjust, the partnors’ individual liabilities not being equal.

Did that .unauthorized act enure to the benefit of the partnership ? "W. E. Hamilton swore that two'drafts of John J. Hodges, one for $761.03c. ■the other for $277.75c, were given to close cash advances made in the months of February and March 1870. In February the planting partnership did not exist. In an account rendered to John J. Hodges personally — on the 20th of June 1870 — these two drafts are charged against him, and — at the date those'drafts were given — they had advanced to ■the planting partnership, according to their own account, the sum of ■forty dollars.

Was it through mistake that those drafts were charged to John J. Hodges ? If 'it was, we aré at a loss to imagine how it is that, in the account rendered to the partnership and which bears the same date as. that rendered to John-J. Hodges, those drafts are not mentioned. At. that date — the 20th of June 1870 — the planting, partnership was owing Hamilton & Oo — including principal, interest and commission — four-hundred and thirty-two dollars and seven cents: this is shown by their written statement. The account of the partnership was .added to that of John J. Hodges amounting to $1723.89c, and — on the 12th of September' 1870 — for those united claims, interest thereon at eight, and commission at five per cent — John J. Hodges gave and Hamilton & Co. accepted the note of the planting partnership. This may be, but it oertainly does not look right.

How is this explained by one of the plaintiffs? He testified — on the trial — that account No. 13 — that rendered to John J. Hodges personally— was but a cash statement, and that he was satisfied that nearly, if not all of it, was for the benefit of the partnership. He was confirmed in his belief by the fact that statement Nó. 12, that in which the accounts-of the partnership and of John J. Hodges were merged in a grand total, was accepted by the partnership, and its note given for that mixed indebtedness. That indebtedness amounted then to $2343.05c.

W. E. Hamilton confessed on the stand that he could not swear positively that any of the items in the account.made in John J. Hodges* name and rendered to him, were for the use and benefit of the partnership, but he believed it.

By request of John J. Hodges, S. J. Ward paid, of the mixed indebtedness, to Hamilton & Go., and out of the proceeds of the sale of cotton belonging to the planting partnership, the sum of 1240450c. When he made that payment, Ward was the factor of said partnership, but he was not aware that Jackson B. Hodges knew that such a payment was to be and had been made.

As concerns the succession of Jackson B. Hodges, the note sued upon is twice invalid: it was given without authority, and — so far as it appears by the record — it is without consideration.

The evidence tending to show that said deceased had been informed of the settlement made by his brother John, had not objected to, but acquiesced in what he had done, was properly excluded: if admitted without objection, it is doubtful that it could have been considered. Whatever is done in contravention to a prohibitory law is null, and the law merely prohibits parol evidence of the pretended promise to pay the debt of a third person, but in all such cases the promise to pay shall be proved by written evidence, signed by the party to be charged, or his specially authorized agent or attorney-in-fact.

C. C. art. 12. 24 A. p. 325. 23 A. 747.

It has not been shown that Jackson B. Hodges knew that the individual indebtedness of his brother was included in either the accounts or the notes, or that he had been informed of the character of the ■charges which — in a few months — had swelled to extravagant proportions the liability of the planting partnership to the firm of Hamilton & Co.

“ The facts from which the ratification of a contract is to be deduced, must evince such intention clearly and absolutely,” and the validity of any ratification — express or tacit — can legally rest but upon a previous and full knowledge of the contents of the unauthorized or defective acts ~to which the ratification is to impart a posthumous and retroactive validity.

13 L. 1756 R. 184.

The reconventional demand can not be allowed. If Jackson’s share in the proceeds of the sale of the cotton had been misapplied, it was done under the instructions of his brother and partner, and his legal representatives have no recourse — for the recovery of the difference which they claim — but against his succession, and not against one recognized by him as his creditor, and to whom he has — right or wrong — paid what he had acknowledged he owed him.

It is, therefore, ordered, adjudged and decreed that — as regards the succession of Jackson B. Hodges — the judgment appealed from, signed on the 22d day of April 1878, is annulled, avoided and reversed, and plaintiffs’ demand rejected at their costs in both courts.


author: DeBlano, J.

text:
    No. 794.
    Henry Gerson, Jr., vs. Larkin Jamar.
    ■Where a third person in whose possession property has been attached, intervenes, and elaims<the ownership ol the property, his intervention need be served only on the plaintiff in attachment. It is not necessary for him to cite the defendant in attachment who does not dispute his title.
    Except in a ease of trespass on real estate, a claim for damages can not be made in an intervention against one who does not reside in the parish where the principal action is pending.
    A claim for damagfes against the sheriff can not be coupled with an interventional demand setting up the intervenor’s title to personal property attached in his hands.
    APPEAL from the Fourteenth. Judicial District Court, parish of Rich-land. Parsons, J.

      W. W. Farmer for plaintiff and appellee.

      Wells & Potts for intervenor and appellant.
   The opinion of the court was delivered by

DeBlano, J.

On the 28th of January 1876, Larkin Jamar — a resident of the parish of Richland — appeared before the deputy recorder of the parish of Ouachita, and acknowledged that he was indebted unto Henry Gerson .junior, a resident of the last mentioned parish, in the sum of twelve hundred dollars, to represent which he (Jamar) delivered to the said Gerson, his promissory note payable in twelve months from Its.date, and secured its payment by a conventional mortgage.

On the 6th of December 1876, Gerson brought suit against Jamar for the balance due on said note and for the price of plantation supplies furnished and advanced to’him. He also — at that date — obtained orders of attachment and sequestration against the property of his debtor, on grounds which — now—it is useless to notice.

Under two writs issued on those orders and directed to the sheriff of the parish of Richland, that officer attached — as belonging to Larkin Jamar, four mules, one mare, five cows and calves, one wagon and one bed, valued at five hundred and fifty dollars.

Joseph E. Jamar intervened in the suit pending between Gerson and Larkin Jamar, avers that — on the 16th of October 1876, he purchased — from the latter — the property so attached, and claims against O. H. Moore — the sheriff — and Gerson, the seizing creditor, actual and vindictive damages on account of said attachment, which — he alleges— was illegal, wanton and malicious. That intervention was' directed to and served on only the plaintiff in execution and the sheriff.

On the trial, to prove his asserted title, the intervenor tendered in evidence an act of sale from Larkin Jamar to him. That evidence was objected to by plaintiff’s counsel, on the grounds that defendant had not been cited to answer the intervention, had not answered it and that no default was entered against him. The objection was sustained and the evidence excluded. To the ruling of the court on this point-, the Intervenor excepted.

Plaintiffs counsel maintains that the intervenor’s action should have been directed against both, the plaintiff and the defendant. Were the intervenor claiming title to property in contest between the parties to the suit, the counsel’s argument would be unanswerable; but he is attempting to arrest the execution of a writ of attachment levied on property not claimed by, and — nevertheless—attached as belonging to ■defendant, and so attached in intervenor’s possession.

If not a third opposition, the intervenor’s demand is the twin sister ■of such a proceeding, and the Code of Practice specially provides that ■“if the opposition has for its object to set aside the order of seizure, as having been effected on property not belonging to the party against whom the order was directed, but owned on the contrary by the third person making the opposition, it must be done by means of a petition, which — together with a citation — must be served on the party making the seizure” etc. C. P. 396, No. 1, 398.

In a proceeding by intervention, one may join the plaintiff or defendant, or he may oppose both, and — assured^—either, as the nature of his right and interest may require; and his intervention must be served on whom ? The party against whom it is directed, and that party must and can be but one who disputes the existence of the right he claims.

C. P. 389, 393.

What is the effect of an attachment? It divests the owner’s possession and vests it in the sheriff, who -holds for the benefit of the attaching creditor, and it seems evident that the intervention should be directed against alone those who so hold the property claimed in and by the intervention, and for whose benefit it is held. In such a case as this one, what could the court allow against, and what could the intervenor ask of a defendant from whom he acquired his alleged title to, and his possession of the attached property ?

The fact that the petition of intervention was not served on the defendant, and that he was not cited to answer it, neither did nor could deprive the plaintiff of any right, remedy or advantage which- — otherwise — he could have exercised. It, in no way, prevented him from proving whether — as he charges — the sale from Larkin Jamar to his son is a simulation, and that formality — if pursued — would have been as useless to plaintiff as to the intervenor. In a proceeding of this description,- the only parties who must be cited and made defendants, are those by whom the intervenor has been divested of what he considers to be a legitimate possession.

The court erred in excluding the evidence tendered to sustain the intervention, but did not err in dismissing the intervenor’s claim for damages against Gerson and the sheriff. An intervention is a separate, independent demand, limited to the prosecution of a party’s interest in a suit pending between other persons, and as to some matter involved in said suit: as a necessity, it must be instituted wherever the principal action is brought, and — except in a case of trespass on real estate — a claim for damages can not be grafted on an intervention, against one who does not reside in the parish where the principal action is pending.

Gerson is a resident of the parish of Ouachita, and — if he has incurred'any liability towards the intervenor, there and not in Richland the latter must sue to enforce the presumed liability. As to the sheriff, he was not a party in the original case, and could have been cited in this but as the executive officer of the court under whose orders he acted, and the well-established rule is that the intervenor must enter and take the case as he finds it. He could not, in this proceeding which is not one of final process, properly have coupled with his demand for the recognition of his title to personal property, a demand for damages against the sheriff. In so doing, he added two suits against different .parties in and to the suit which was already progressing between plaintiff and defendant. If allowed, such a practice would be attended with .the most inextricable confusion.

It is, therefore, ordered, adjudged and decreed that — so far only as it dismisses the intervention of Joseph E. Jamar, and commands the «ale of the property which he claims, the judgment appealed from is annulled, avoided and reversed at the costs of Henry Gerson junior; ■and that — as concerns this branch of the litigation, this case be remanded to the lower court to be proceeded with according to the views herein expressed and according to law.


text:
    No. 830.
    J. H. V. Harrington vs. Ira Barfield et al.
    The district court has jurisdiction of a suit brought by one heir against his coheirs for his share of the succession, which has been administered, and is at an end.
    The child born after one hundred and eighty days after marriage is presumed to be the husband’s child.
    A child begotten of a mother who had married in good faith, and before any doubt had arisen in her mind as to the existence of any legal impediment to her marriage, is entitled to all the rights of a legitimate heir of the mother.
    Heirs are not chargeable with the rents and revenues of the property which they • have possessed and used as sole heirs in good faith, before notice was brought to them of the existence of another heir, previously not heard of.
    APPEAL from the Fourteenth Judicial District Court, parish of Rich-laud. Parsons, J.

      M. J. Liddell and Robert Ray for plaintiff and appellee.

      W. W. Farmer and Wells & Potts for defendants and appellants.
   The opinion of the court was delivered by

Manning, C. J.

Levi and Margaret Barfield, husband and wife, were Jiving in 1850 in Franklin parish, upon a plantation of their own, surrounded by the appliances of comfort, and even of luxury, that befitted persons who by patient toil and prudent management had obtained the means to procure them. Three children had survived of the larger number that was born to them — Celia, Isabel, and Ira. In that year, a young man named Harrington came into that neighbourhood, and sought ■to obtain the patronage of parents in the establishment of a school. He found encouragement, and the unwary father of Celia permitted him to open a school at his house or on his premises. Harrington had a fair exterior, and plausible address, and possessed an accomplishment which in the rough life of a sparsely settled and imperfectly cleared country such as that locality then was, gave him the entrée to society, and made him the visitor, more desired than all others, to the country dances and social gatherings of the neighbourhood. He was a musician, and his instrument was the violin.

Celia Barfield was then in the first bloom of mature womanhood. Whether any thing had transpired to awaken her father’s suspicions, we-have now no means of positively knowing, but Harrington left Mr. Bar-field’s, and went to another place, not far distant, and opened another school. There is little doubt that the father had discovered his mistake-in permitting this attractive adventurer to live under his own roof, and sought to repair the probable injury by sending him away. Not many months elapsed before he had to bemoan the effects of his fatal error.

In April 1851 there was a festive gathering in the neighbourhood. Celia Barfield left the house of her parents, bedecked for the evening’s-sport. They never saw her again. Harrington met her at the dance, and the two thence rode away, and were married by a justice of the peace. They were attended by those to whom their secret intentions had been made known, and among them'was an uncle by marriage of the infatuated girl, who has lived to tell on this trial the story of his niece’s dishonour,, and his own shame.

About two months after the marriage, Harrington was charged with shooting at a man for some cause, and was arrested' and examined before a magistrate, and discharged. This circumstance occasioned the usual flood of eager small-talk in a country neighbourhood, and among it, was the whisper — appalling to the Barfields and their daughter— that Harrington had a living wife in Mississippi then. This was spoken of as a rumour, but there was no one then who undertook to assert it. Harrington determined to move away. He left in July, giving as a reason his fear that the man who had him arrested for the alleged shooting would have him indicted. Celia had worn the name of wife two and a half months, and was already sufficiently advanced in pregnancy to attract notice. This rumour of Harrington’s previous marriage, and of his living wife, reached her ears. She asked him about its truth. He denied that his first wife was living. He had represented himself as a-widower on his first appearance there. He asseverated that his first-wife was dead, and she believed him. It is strange, she said, that every one knew that Mr. Harrington had another living wife, now that she was married to him, and had not found it out before. She declared her disbelief in the story, and went with him to his new home. That was Magnolia, in Arkansas.

In 1875 another stranger appeared in this same locality, bearing the same family name, with the baptismal prefixes of that uncle’s name, who had assisted in the elopement of twenty-four years before. He said he was the eldest and only surviving child of the school-teacher and Oelia Barfield — the same that she bore in her womb when she left the place to which he had now come for the first time. Many changes had taken place. Levi Barfield had been dead many years. Margaret, his widow, had husbanded the property with unusual success — had increased it, so that the plantation of twelve hnndred acres, and the movable property, and slaves, had become valuable. She survived the war, and though the estate of course suffered great deterioration, when she died on the last day of 1870, there was enough to satisfy moderate wants.

Ira Barfield, her only son, and Is.abel, her daughter, now the wife of John M. Gwinn, took possession of the property, formally accepted the succession unconditionally in January 1871, and in the following December partitioned it between themselves. Each was in the enjoyment of the one half of the property of their father and mother, when this stranger, claiming to be the son of their sister, appeared on the scene. He had been in this State two or three years, but did not know in what particular part of it his mother’s family lived. His father had found a third wife in Arkansas, after Oelia Barfield’s death, and this last wife was a widow with a daughter by a previous marriage, who had grown up, married, and come down to the neighbourhood, and it was from her that he had found out where the Barfields lived. His mother’s death had occurred a few years after the removal to Arkansas. His father had told him his mother’s name, and that he would be entitled to some property in Louisiana at some future day, but he knew nothing more. He was very young, hardly old enough to be told or to remember any thing but such salient facts as his mother’s name and birthplace. The father himself had died before he imparted his singular story to the son. The war had broken out, and William Harrington in some measure atoned for his violation of the laws of his country by flying to her defence. He perished, a victim to the fevers of the camp at Corinth.

Young Harrington told his story to Ira Barfield, who listened with half-yielding credulity, but warned him that better proof was needed than his narrative, however probable, before he could be recognised as Celia’s son, or as such, be entitled to Celia’s inheritance. Isabel scouted his whole story. He was an impostor, not the son of her sister — but even if he were, he was conceived in shame, born in disgrace, and was now flouting the pretensions of an adulterous bastard to share the Barfield property in the faces of those whom his mother had dishonoured. The reception which this brother and sister gave to the son of the dead woman is characteristic.

Both the exception and answer of Mrs. Gwinn contest the pretensions of the plaintiff on these grounds, and the other defendants adopt her defences as their own. There are also other grounds of exception; — • that Harrington is suing for recognition as heir, and for the partition of succession property, and that the parish court has exclusive jurisdiction of these questions, being probate in their nature.

It was said in Le Page v. N. O. Gas Co. 7 Rob. 183, that the recognition of an heir before the probate court is required only when he is seeking to compel an executor or other representative of a succession to render an account. When he is demanding his share of the succession from other heirs, and his heirship is contested, he can as well offer the proofs of that heirship in a suit in the district court as in the probate tribunal. A circuity and multiplicity of actions is avoided by that means. The second exception is equally untenable. This is a petitory action, coupled with a demand for the value of movables, and for rents and profits. The succession of the deceased Barfields had ended some years before the institution of this suit, and was no longer in existence to be partitioned.

The heirship of the plaintiff is put at issue by the defendants. They deny that he is their sister’s child, or if he is, that his parents were legally married. They aver that William Harrington had a wife then and now living, whose name is Matilda J. Kelly, and that Celia Barfield knew it when she went through the mock ceremony — that the flight to Arkansas was because of a threatened prosecution of Harrington for bigamy, and the birth of three children, of whom plaintiff is the only survivor, shews their mother’s persistence in the illicit cohabitation with Harrington after she knew that she was not his lawful wife. They allege that the plaintiff is an adulterous bastard, and cannot lay claim to the inheritance of their parents.

The whole controversy turns upon the good or bad faith of Celia Barfield — upon her knowledge or ignorance of the previous marriage of Harrington at the time of her own marriage, and of the conception of this, her first child. It is necessary therefore to examine the law applicable to this question, and then to ascertain whether she was in such a position, as to enable her son to legally claim her portion of her parents’ property.

The marriage was in April 1851. The plaintiff was born on 9th. December of the same year, between seven and eight months after the marriage. Our Code declares that the child which is born before the one hundred and eightieth day after the marriage, and which is capable of living, is not presumed to be the child of the husband. The same rule applies to the child born three hundred days after the dissolution of the marriage, arts. 205-6. new nos. 186-7. The plaintiff was bom within those periods, and we will charitably assume, as the law does, that he was begotten in wedlock.

To what extent the good faith of one of the parties will cause a null marriage to produce civil effects, and what is the reasonable belief that party must have of the absence of legal impediments, is thus stated by Mareadé ;—

les principes de requité, et la thóorie juridique, et l’historique de la redaction du Code, tout prouve quetous les manages nul, c’est-á-dire, ceux proprement mils ab initio, aussi bien que ceux rendus nuls parda cassation, doivent produire les effets civils d’un mariage valable, quand il y a eu bonne foi. .

O’est sous la condition de la bonne foi des époux, ou de l’un d’eux, que le mariage nul produit les effets civils; et cette condition est la seule qu’exige la loi. Cette bonne foi consiste dans la pensée, erronóe mais raisonnable, chez la personne, que le mariage qu’elle contractait ótait vraiment valable devant la loi.

Nous disons pensée raisonnable. Ainsi, on ne pourrait pas reconnaitre la bonne foi, l’ignorance pardonnable, chez celui qui viendrait dire qu’il ne savait pas qu’un méme homme ne peut pas avoir plusieurs femmes ; * * * En effet, on sait partout dans le monde que la bigamie est punie comme un crime * * * Oe qu’il faut toujours exiger, mais aussi 1’unique chose qu’on doive exiger, c’est l’ignorance vraiment pardonnable de l’existence ou de l’effet legal du fait qui s’opposait á la validitó ou á la formation du mariage ; c’est pour rópóter la régle deux fois exprimée, qu’il y ait en bonne eoi. Tout se reduit a cela; et comme c’est la un point de fait qui dépend, pour chaqué espéce, des milles circonstanees de l’espéce, nous ne concevons guére l’attitude des cent et une questions que les auteurs ont agitées sur ce point. II est abandonné tout entier au pouvoir diserétionnaire du juge. JSxplic. du Code Napoleon, 1 vol. 520.

Olendenning’s case, 3 New Series, J38, declares the broad doctrine that the woman who was deceived by a man who represented himself as single, and his children begot of her while the deception lasted, are bona fide wife and children, and as such, entitled to all the rights of a legitimate wife and issue. It should be stated however that a marriage had preceded the birth of a child in that case, as in this, the first wife being still living, and the first child was born within four months from its celebration, which circumstance Martin, J., treating of the good faith of the woman, thinks may be evidence of too much faith in her, but adds, as a lawful marriage cures an irregularity of that kind, a bona fide one on the part of the deceived woman must have the same effect.

Patton v. Philadelphia, 1 Annual 98, is a remarkable case, where the questions now before us, were well considered. Abraham Morehouse left Abigail Young, his lawful wife, whom he had married in 1790 in New York, and their two children, and came to the Spanish colony of Louisiana. He said he was a widower, and in 1799 agreed to take Elénore Hook as his wife. There was no priest to be had, and the two signed an Act before the commandant of the post, in which their intention was expressed. That was the custom of the colony. In 1805, Morehouse acquired four tenths of the land grant of twelve leagues square, made by the Spanish Government to the Baron de Bastrop, and died in 1813, his two wives being then alive, and each one having living children by him. The parties to the suit derived title from these two families — the plaintiffs from Elénore Hook’s children, the defendants from Abigail Young’s, through Stephen Girard.

Morehouse had refused to solemnize his marriage afterwards when a priest was at hand, and the court held that it was valid without the solemnization, and that Elénore was his lawful wife ás long as she remained in good faith, and cite the Spanish law to the effect, that absolute ignorance of the existence of the impediment to a lawful marriage is not essential, but children, begotten during the existence of a doubt touching the impediment, will be legitimate.

There were general reports current in the country in relation to the first wife being alive, and Elénore once asked the commandant’s wife about them, and was told not to believe them. Celia Barfield was told by her husband the same thing under very similar circumstances, but the defendants insist that she knew of his first marriage and the living wife, before her own marriage. The most damaging testimony to Celia is their witness, Mrs. Evans, her aunt, who lived in the Barfield neighbourhood, and who sajrs ; she “had heard that Harrington was a married man before this marriage with Celia, and that she had told Celia of the rumour before she ran away with him — that she had heard Celia’s father and mother tell her (Celia) that Harrington was a married man, and that Celia had heard it more than once before her own marriage with him.”

On the other hand, two men who w'ere conspicuous actors in the elopement testified that there 'were no rumours in the neighbourhood of •any living wife of Harrington, and that no one, so far as they knew, suspected or had reason to suspect that Harrington was not a widower as he represented himself to be. Lucien H. Villard, the uncle by marriage of Celia, protests that he would not have assisted his niece to the marriage had he suspected or heard of such a thing, but we can very well be distrustful of a man’s notions of propriety who confesses himself to have been so unmindful of decency and good feeling, as to help in bringing upon his wife’s sister and household the anguish and the shame which their daughter’s flight could not fail to do. Dyson, now the patriarch of the neighbourhood, who also lent a helping hand on the elopement night, says he would certainly have heard the rumour of Harrington’s having a living wife, if there had'been any such rumour, tout there was none. Moses Evans is the husband of that aunt, whose strong reiterations of Oelia’s previous knowledge of the first wife’s existence we have mentioned. He knew Harringto'n well, and lived near the Barfields. He says there was never any report in the neighbourhood •about his having another living wife until about a month or so after the marriage. It is not credible that Mrs. Evans had heard such report and never told her husband. Such an appetizing piece of gossip could not have been kept to herself. The good woman has confounded the time, as it is natural she should, and that her memory is not to be trusted is conclusively demonstrated by the statement she made, a short time before this suit was filed, to one of the attorneys that Oelia Barfield would never have married Harrington if she had known he was already a married man. Eive other witnesses corroborate these as to the absence of any rumour of Harrington’s living wife before his marriage with Celia. It was not long after that event that the rumour became rife, and it ■soon developed into certainty.

Levi Barfield, the stricken father, had already determined to free his mind from any harassing doubts upon this matter, and had sent Moses Evans’ father over to Mississippi to learn the truth. He found the •first wife, Matilda Kelly. Then Mr. Barfield went, and assurance was made doubly sure.' Then it was that Mr. Barfield sent the female members of his family as emissaries to his daughter, to tell her the appalling truth he had learned, and to conjure her to quit the man who had so foully betrayed her, and come back to the home she had so inconsiderately left. Her answer was — “ I will follow William Harrington never mind how many wives they say he has.” She could have said nothing else, even if she believed what they had told her. What could she do but cling to the father of the unborn child, whose advent might throw suspicion on her ante-nuptial virginity. She best knew whether that child might be expected to see the light before the usual period of gestation had elapsed from the marriage. But there is every reason to suppose that she did not believe the story about the first wife then, and that her exclamation that she would follow Harrington was only the outbust of angry defiance of her tormentors. Naturally she would ask herself — how is it possible for this Matilda Kelly to be his wife, when she does not bestir herself to pursue him. She would not have far to come. She knows where the second wife is, and how can it be conceived that she can deny herself the revenge, and spare him the punishment, of personally confronting the guilty husband, and by her presence placing an insurmountable barrier between him and the hapless girl whom he has vainly sought to put in her place.

Marcadé says, c’est seulement au moment de la célébration du manage que la bonne foi est nécessaire, et alors méme que les époux seraient restés unis longtemps encore aprés la découverte de l’erreur, cette bonne foi primitive suffirait et produirait les mémes effets que si elle avait continué jusqu’á la declaration de nullité. La loi devait étre indulgente en pareil cas. Explication, Ibid. 521.

But the testimony leaves the impression on our minds that Celia, never believed the story that was told her, and the death of all the children but the plaintiff leaves no question for consideration but her good faith at and before the time this plaintiff was conceived.

We think her good faith is proved far beyond the requirement of the law as approved by this court in Morehouse’s case. If children begotten during the existence of a doubt as to any impediment, and before doubt has given place to' certitude, are held to be entitled to the-rights of legitimate heirs, a fortiori must this child who was conceived before doubt began, be held entitled to the same rights. It is not improbable that Celia Barfield continued in disbelief of this story in Arkansas. No one troubled himself about it. No one pursued him, and so ignorant was the community there of it, that after her death he married there a third wife, who is living and is one of the witnesses to the filiation of the plaintiff on this trial. Two of this man’s wives have survived him.

The plaintiff’s counsel say : It is not an insignificant, circumstance that Levi and Margaret Barfield both died without disinheriting Celia.. If they had believed, or had reason to suspect that she knew of Harrington’s first wife when she married him, they would not have left their other children to the uncertainty of being confronted by her issue,, claiming a right to their property. But the probability is that neither of these people thought of wills or disinherison, or knew anything about, the law regulating the rights of Celia’s children. Their simple way of looking at it was from the moral standpoint, and no doubt they thought a man that had one wife could not, outside of a Mohammedan country, have another in law, and any children born of such other wife were bastards, and were in the expressive language of the old law, the children of nobody.

As good faith is imputed to the mother of the plaintiff, until the contrary be clearly shewn, so must it be imputed to Ira Barfield and his-sister Isabel in their possession of the property under the belief that no other heir was in existence. There was nothing to induce them to believe that any one was in existence who could rightly claim any portion of their parents’ succession but themselves. They knew nothing of Celia’s subsequent history, and Celia’s son knew so little of them that it was many years before he found out the locality of his mother’s marriage, and the home of her family. Celia had not been heard of by her family for nearly a quarter of a century, and her brother and sister are-entitled to the benefit of their plea of prescription. The defendants are-not chargeable with the rents and revenues of the property which they possessed and used as sole heirs in good faith, before notice waabrought home to them of the existence of an heir, previously not heard of. This suit was instituted in the latter part of 1875. The verdict of the jury gave the plaintiff the rents only for 1876 and 1877. They found in hi» favour as heir, and awarded him one third of the property, and we think correctly. Therefore

It is ordered and decreed that the judgment of the lower court is-affirmed.


text:
    No. 831.
    Franklin Garrett, Executor, vs. William Bonner.
    Any suit between a citizen of this and another State, whether in rem, or inpersonam,, is under the act of Congress of 1875 removable from the State to the Federal court, when the matter in dispute exceeds S500, and when the application to-remove is made at, or before the term of the State court at which the suit could be first tried, and before the trial thereof.
    An hypothecary action against a third possessor of mortgaged property who was-not a party to the previous suit and judgment of the plaintiff against the former-owner of the property is a new suit, and not the mere continuation of the previous suit.
    Appearing and filing a plea of .prescription in the State court, does not, under the aet of Congrerjc of 1875 prevent the defendant from demanding a removal of the-suit to the Federal court.
    When a defendant has filed the proper application and bond for the removal of the suit to the Federal court, in a case where he had the legal right to the removal, the jurisdiction of the Federal court will not be affected by the subsequent death of' the defendant, and the execution of the appeal bond by his executor.
    BPEAL from the Fourteenth Judicial District Court, parish of Bichland. Parsons, J.

      Franklin Garrett for plaintiff and appellee.

      W. W. JFarmer for defendant and appellant.
   The opi nion of the court was delivered by

Spencer, J.

This is a hypothecary action to compel the defendant' to pay the,-Amount of a judgment for $5253 75 and interest, or deliver-up the property in his possession to be sold to satisfy it. The petition alleging that Bonner was an absentee, a curator ad hoc was appointed to represent him. The plaintiff is a citizen of Louisiana, and the defendant a, citizen of Alabama. The petition was filed April 12,1876, and citation s erved April lé, 1876, on the curator ad hoc. The next term of' the court,! after the filing and service of this suit, began on Monday of September following. On twenty-fifth of September, 1876, the defendant appeared by counsel and filed a plea of prescription. On the-next day, September 26, he filed, in the usual form, his petition and bond for removal of said cause to the Circuit Court of the United States, under the statute of 1875. The court refused to grant the order, •although there was proof that the value of the lands sought to be held liable to plaintiff’s mortgage exceeded $500, etc. The reasons of the judge a quo are not given; but it is argued here, in support of the refusal to transfer—

First — That this is an action in rem, and that the act of Congress ■only applies to actions in personam.

Second — That the hypothecary action in this case is not a new suit, tout in the nature of an auxiliary proceeding for execution of the original .judgment of Garrett vs. Sims.

Third — That by pleading prescription before filing petition for removal defendant voluntarily admitted jurisdiction in the State court.

We do not think either of these objections sufficient. The act of 1875 has extended the jurisdiction of the Federal courts up to the limits of the Federal constitution. It provides in substance that any •suit of a civil nature at law Or in equity, when the matter in controversy exceeds $500, etc., is pending between citizens of different States, it may be removed on application of either party made at or. before the term at which said suit could be first tried and before trial thereof. The act does not distinguish’between actions in rem and in personam. It says " any suit of a civil nature, at law or in equity.” It ¡can hardly be affirmed that a demand, like that in this suit, to compel.the defendant to pay a sum of more than $5000, or to surrender property exceeding •$500 in value, is not a civil suit. We are not prepared to -say that it is purely an action in rem even. It is a real action, but partakes of the nature also of a personal one, since its prayer is alternative.

Nor can it be affirmed that this is not a new suit, but. only a continuation of a former one. The defendant Bonner was never a party to the suit of Garrett vs. Sims, upon the judgment in which this proceeding is based. >

The plaintiff’s third proposition would be good if this removal were ■sought under the judiciary act of 1789. The authorities cited from 12 M. 100 and 1 N. S. 546 relate to that act. ^

If the conditions required by the act of 1875 exist, the'1 removal must be ordered if applied for before trial and at or beforeI the first term at which the cause might have- been tried. This was doine in this •case, and the removal should have been ordered. ,

It is therefore ordered and decreed that the judgment in \this case be set aside, and that the case be remanded to the court a qua with instructions to grant the removal prayed for by defendant, upori his complying with the law.