text:
    No. 8209.
    The State of Louisiana vs. Joseph Gregory et al.
    Seotions 841, 842 and 843 of tlie Revised Statutes, providing for tlie punishment of the crime of arson, discussed and construed.
    The indictment in this case is sufficient under said section 843, without negativing the exception mentioned in the statute.
    Under the order of the Court below that “ witnesses for the State and the accused were to be sequestered,” the accused should not have been deprived of. the testimony of some of his witnesses, who were not in court when the order was made and only presented themselves the day after.
    A witness of the State, on the cross-examination, having been asked what his feelings were towards the accused and having answered that they were bad and unfriendly, Counsel for the State had no right, on the re-examination in chief, to ask the witness to state the reasons of his animosity.
    A witness may be examined on the cross-examination as to matters not embraced in the direct examination, when it is only for the purpose of testing his credibility. State vs. Willingham, 33 An. 537, affirmed.
    APPEAL from Fourth Judicial District Court, parish of Caldwell.' Bridger, J.

      D. B. Gorham and John Bay for the accused, Appellants.

      J. O. Egan, Attorney General, for the State, Appellee:
    Pirsfc — Sec. 843 It. S. does not contain an exception or proviso.
    Second — Provisos in statutes are not required to "be set out in an indictment charged thereunder, unless the proviso or exception is a part of the definition of the crime. 25 Conn. 48 j 24 Conn. 522.
    Third — When an indictment conforms to the wording of the Statute under which it is drawn, it is valid.
    Pourtli — Jurymen are competent to serve although they may have formed opinions concerning the guilt or innocence of the accused, when those opinions would not weigh or influence their minds in arriving ata verdict in accordance with the evidence introduced on the trial. State vs. Charles Johnson et al., 33 An.
    Pifth — Evidence to prove the motive which might have actuated the accused in the perpetration of the crime is admissible. State vs. John Crowley et al., 33 An.; 38 Mo. 496 ; ib. 587; 42 ib. 242.
    Sixth — It is admissible for the State to prove the relationship which existed between the accused on trial.
    Seventh — It is competent for the District Attorney, on the re-examination of the State’s witness, to question him on matters brought out by defendant’s counsel in the cross-examination.
    Eighth — " The general rule, that leading questions are not allowed on the examination in chief, is subject to the discretion of the court, and the admission of evidence in answer to such questions, is not a ground for a new trial.” Chitty’s Crim. Law, p. 620, note; 9 Conn. 275j etc.
    Uinth — When the accused disobeys the order of the court which forbids him to communicate with his witnesses, he cannot be heard to complain of the infliction of the penalty which the court imposes.
   The opinion of the Court was delivered by

Todd, J.

The defendants were indicted with having wilfully and maliciously set ñre to and burned a certain steam gin and mill house of one Richard G. Sermon. They were tried, convicted and sentenced to seven years imprisonment in the penitentiary. From which sentence they have appealed.

The errors assigned, and on which they rely for a reversal of the sentence, are thus stated:

1. “ That the indictment does not describe an offense under section 843, Revised Statutes, the same not negativing the exception and.proviso in the enacting clause of the statute.”

2. That the court erred in rejecting the witnesses, Mrs. and Miss Kent, offered by defendants.

3. The court erred in permitting Meredith, a State witness, to state the cause of his unfriendly feelings towards accused, Gregory.

4. The court erred in permitting the District Attorney to ask Blanks, a witness for the State, whether “ the witness had borrowed his overcoat on that day,” it being a leading question.

5. The court erred in permitting the witness Raines, on cross-examination, to be examined on matters not raised in his examination in chief.

6. The court erred in admitting the testimony of Sermon, Gray, and Glay, called to prove conversations some days before the offense charged, not in reference to said offense.

7. The court erred in permitting the State to prove that the defendants were intimate personal friends as tending to prove the offense charged.

First. Section 843, underwhieh the accused were indicted, provides:

“ Every person who shall wilfully or maliciously set fire to or burn any outhouse, stable or barn, any shop, store, office, warehouse, sugar house, cotton-gin house, cotton press, cotton pickery, school-house, church, or any building of public worship, or any other building not embraced and provided for in the two preceding sections, or any vessel, ship or steamboat, or other water craft not embraced in the two preceding sections, shall, upon conviction, suffer imprisonment at hard labor for not less than seven years, nor more than twenty years.”

The indictment is as follows:

“That Joseph Gregory and Walter Kent * * * a certain steam gin and mill house of one Richard G. Sermon, there situated, feloniously, wilfully and maliciously did set fire to, and the said steam gin and mill house then and there by such firing as aforesaid, feloniously, wilfully and maliciously did burn.”

The alleged error consists, as argued by defendants’ counsel, in the indictment not negativing that the steam gin and mill house were embraced and provided for in the two preceding sections; and that such negation was essential to constitute an offense in view of the words of the statute “ or any other building not embraced and provided for in the two preceding sections.”

To understand it fully, it is necessary to refer to these two preceding sections. They are as follows;

" Sec. 841. Every person who shall wilfully or maliciously set fire to or burn, in the night time, any house, ship, vessel, steamboat or other water craft, in which there shall be, at the time, some human being usually staying, lodging or residing at night, upon conviction thereof, shall suffer death.”

Section 842 differs from 841 only in the use of the words “ in the daytime” instead of the night time,” and in the penalty prescribed, which is not less than ten years in the penitentiary.

It is clear to our minds that the law-maker in enacting these three statutes, or sections of a statute, intended to define and provide for three distinct offenses, or rather three grades of the one generic offense •of arson.

The first, and most heinous, “ the burning in the night time of a dwelling house or house wherein human beings usually stayed. The second, and less heinous, the burning in the daytime, of the same character of house or human dwelling, and the third and still lighter crime of burning, whether in the daytime or night time, an outhouse or other building not used as a dwelling. This seems to be the plain intent and purview of these three sections.

If the indictment had been framed under the first of these sections, it would have been essential that it should charge that the burning was in the night time, and that the house burned was occupied usually at night as a lodging by a human being, in the words of the statute. This being of the very essence of the offense, and the essential description thereof; so, if charged under the second, the averments that it was done in the daytime, and that the house burned was one in which a human being usually stayed or resided, in accord with the language of the section; such also being of the essence, and essential to the description.

Under the third, it is sufficient to charge the burning of an outhouse, stable, steam gin, and mill house, or of any other building of a kind not usually occupied as a dwelling or place of lodging, and such as are not mentioned in the preceding sections, and the offense is complete, and the description if it is not aided by reference to the preceding sections, but is entirely independent of anything contained therein; and the indictment need not, therefore, contain such reference. The section, in fact, contains no exception or proviso as recognized by law-writers on the subject, and the authorities referred to by the counsel for the accused are, therefore, inapplicable. The words “any other building or house not embraced and provided for in the two preceding sections,” were used simply to authorize and justify an indictment for the burning of a building just such as is described in the present bill. An exception or proviso in a criminal statute generally means some benefit intended for the accused, and by pleading and establishing which he may be exculpated, and the negative of which proviso or exception is essential in some cases to show affirmatively that a real offense has been committed. Thus, as illustrated by Bishop, “where a statute provided that if any person shall on the Sabbath exercise any secular labor, business or employment, except such only as works of necessity and charity, he shall be punished,” etc., a complaint not negativing the exception was held to be insufficient. And, again, “ when a statute declared that no innholder shall entertain or suffer any of the inhabitants of the respective towns where they dwell or others not being travelers, strangers or lodgers in such houses, to abide or remain in their houses, etc., drinking, etc., on the Lord’s day, etc., on penalty, etc., it was held to be necessary in the indictment to set forth that the persons entertained were neither travelers, strangers nor lodgers.” Bishop, Crim. Procedure, §632-33-34-35-86. Had these acts, instead of containing the word “ except,” denounced the acts mentioned, and then followed with the word “ provided ” that in the one case it should not apply to works of charity, and in the other to those innkeepers entertaining travelers or lodgers, we would have an instance of a “ proviso ” as treated of by the authorities on the subject.

There is nothing of this kind, or in any way relating to it, in the statute or indictment under consideration. There was no benefit designed or intended by the words referred to in this statute, but, on the contrary, had the accused pleaded that the building charged to have been burned was really a dwelling-house in which human beings usually stayed, it would have been a plea, not of a benefit or of exculpation, but of a more aggravated offense. Even could the words referred to be construed as declaring an exception or proviso, the authorities are by no means uniform that such exception or proviso, even if found in the enacting clause, need be negatived, but is a matter of defense to be set up by the accused.

1 Chit. Crim. Law, 283, 284; 24 Conn. 522; 25 Conn. 48; 8 Johns. 41.

Upon this point, however, we express no opinion, since the question is not properly before us. The indictment was good and sufficient, and the motion in arrest of judgment, based on its alleged insufficiency on ■the grounds discussed, was properly overruled.

Second. On the trial of the cause, two witnesses, Mrs. Kent and Miss Kent, were offered in behalf of the accused, Kent, and they were •rejected on objection made by the District Attorney. The following .are the facts connected with the ruling of the judge a quo on this point, as •disclosed by the record :

After the jury was empaneled, and before proceeding with the evi-. •dence, the following order was entered on the minutes:

“Witnesses for the State and the accused were ordered to be sequestered.”

When this order was made the witnesses named were not present. Counsel for the accused stated that these witnesses had been informed they wohld not be needed the first day, and it was understood that ns soon as they came in they should be sequestered, and when they made their appearance on the following day they were accordingly sequestered with the other witnesses. These witnesses lived in the country, and it appears that after the adjournment of court, about midnight of the first day, one of the accused went to the house where, these witnesses resided and remained there until the next morning. When these witnesses were introduced with a view to being sworn in behalf of Kent, their testimony was objected to by the District Attorney on the ground ••that Kent “ had been to the house of the witnesses the night preceding, and had violated the order of sequestration” (we quote from the bill of exceptions). Thereupon the witnesses were sworn on their-voir dire and stated “ they had had no conversation with the accused about the matter at issue, and that he only came there to inform them that they would be needed next day and to provide means of transporting them to court.” The judge, as stated, refused to permit them to testify. He assigns, as an explanation of his ruling, that the order he gave touching the sequestration of the witnesses, was made under an agreement of counsel on both sides, and that the sheriff was to take charge of them and continue in charge of them until the witnesses were sworn and discharged, and that neither the party against whom the offense was charged to have been committed, nor the accused, were to be allowed communication with them. The order quoted is not as comprehensive on the face of it as the judge states it to be. To determine what an order is» and its effect as to the parties designed to be affected by it, courts must be governed by the entry on the minutes. But, even giving full weight to the explanation of the judge, we think his ruling was wrong.

In the first place, the witnesses were not present in court when the order was made, and, therefore, did not become subject to it at the time; were not in fact sequestered till they appeared and placed themselves in charge of the sheriff next day. This order, sequestering witnesses, is directed mainly to the witnesses and intended to control their conduct and movements. It is intended to insure truthful statements, as far as possible, from the witnesses by preventing collusions and understandings between them, and depriving each of them of all opportunity of shaping his testimony to conform to what he may have testified to by another. Bishop thus speaks of and describes the nature and purpose of the order:

“ In pursuance of this doctrine, it has always been deemed competent for the court to see that the witnesses in a criminal cause are examined, as much as possible, separate and apart. This is done by ordering, on motion of either party, the exclusion of the witnesses, whether called on the one side or the other, from the court-room during the examinations, until they shall, respectively, have given in their testimony.”

To hold that the authority of the judge in this respect can be extended to reach witnesses who were never informed of his order and debar'a party accused from all communication with his witnesses, might well lead to the rankest injustice and oppression. We cannot sanction such a doctrine; and, without deciding to what extent an accused may be permitted to confer with his witnesses whilst they are actually under sequestration, and how far circumstances may enlarge or justify his discretion in the matter, we have no hesitation in saying that, under the facts of this case, when these witnesses made the statements on their oaths that they had held no communication with the accused on the subject of the trial, they should have been permitted to testify; and by reason of the defendant, Kent, being thus deprived of testimony which was legally^admissiblej.and testimony which the record shows was calculated to have an important bearing on the result of the trial, is of itself, sufficient to entitle him to have the judgment set aside and the cause remanded, so far as relates to himself.

Third. One Meredith was called and examined as a witness for the State, and on his cross-examination the following took place (we quote from the bill of exceptions): he was asked:

“ What was the state of his feelings towards the accused, Jos. Gregory, and whether he was friendly to him; and the said witness having answered that the state of feeling to him was bad, and that they were not friendly, the counsel for the State, on re-examination of his said witness, offered to show the cause of the ill feeling of the said witness to the accused; which was objected to by defendant’s counsel, for the reason that the cause of the difficulty was not inquired into by the defendants on their cross-examination; that it was not, therefore, in rebuttal, formed no part of the res gestee, would tend to prejudice the jury, and was ah indirect attack on the character of said Gregory, which was not in issue, and that the counsel for the State must be confined in his examination to the matter brought out by defendants’ cross-examination.”

This objection was overruled and the witness permitted' to give the reasons for his. unfriendliness to the accused.

The counsel for the accused had a clear right to question the witness touching his feelings to the accused with a view to determining the credibility of the witness. •

The sole object of it was to prove the fact or existence of the unfriendly feeling, and beyond this, neither the question nor the answer could legitimately have any bearing whatever *on the question presented. If the witness did entertain such feeling, his credibility, under the law, was affected thereby, and it was a matter to be duly considered by the jury in weighing his testimony. If he entertained no such feeling, his credibility was unimpaired; and the inquiry should have ceased and the matter closed here, the end and object of the inquiry being fully accomplished. 'When, however, the witness was permitted in his re-direct-examination to detail the cause or causes of his animosity, he not only was suffered to testify as to matters that were wholly irrelevant to the main issue on trial — the guilt or innocence of the accused — but an opportunity was afforded him to poison the mind of the jury against the accused by relating facts and circumstances, and making accusations wholly disco nnected with the charge for which he was on trial, without an opportunity of defense or reply being offered to the accused, and thus insensibly lead the minds of the jury from the real issues before .them to the contemplation of the guilt of the party in other matters for which he was not on trial. We cannot tell what effect such illegal testimony might have had in this case; but the proceeding is so irregular and opens the door to such abuses as compels us to remand the case. .If such a practice were sanctioned it would place an accused to a great extent at 'the mercy of an unscrupulous and vindictive witness, and open the way to an ex parte trial against him on charges for which he was afforded no hearing.

Reaching this conclusion, it might not seem altogether necessary to pass on the other points of error assigned, but in view of another trial, and to meet the qustions that may arise again, we think it sufficient to say that we have duly considered each one of them seriatim, and have come to the conclusion that there is no force in them.

The rulings, under the facts presented, were correct. In regard to the question raised in the fifth point or assignment, touching the right on a cross-examination to examine as to matters not embraced in the direct examination, where such new matter is introduced to test or affect the credibility of a witness, we had the same subject before us in the case of State vs. Willingham, lately decided and not yet reported, and our reasoning in this point we refer to and re-adopt in the instant case.

It is, therefore, ordered, adjudged and decreed that the sentence and judgment appealed from be annulled, avoided and reversed, and the case remanded to be tried according to law and the views herein expressed.


source: Caselaw Access Project

author: Fenner, J. Todd, J.

license: Public Domain

text:
    No. 7795.
    Heirs of Wood vs. Joseph Nicholls.
    Tb* -nullity of purchases by administrators of successions, of the property thereof, though absolute in one sense, may be ratified by the parties in interest. 33 An. 598.
    The receipt of the price of sale by the heirs would be a sufficient ratification, if made with knowledge of the facts from which the nullity resulted.
    The Defendant, urging that Plaintiffs cannot assail the legality of the sale because they have ratified it, should have specially pleaded the estoppel and cannot set it up under the general issue. Such defense is analogous to that of payment, release, novation, etc. and. must he specially pleaded.
    In a suit by the heirs for the recovery of property thus bought by the administrator, the tender of the price of sale is not necessary as a condition precedent. All that equity requires in such case, is to permit the defendant administrator to claim the-amount in re-convention.
    The plea of the necessity of tender of the price of sale should be setup m limine or, at least, specially.
    The deiendant administrator in such case is, in the sense of the law, a possessor in bad faith and, as such, bound to the restitution of fruits and revenues.

      On the other hand, he is entitled to reimbursement of necessary expenses for the preservation of the property, under Article 2314, O. 0., and to proper compensation for construe* tions and improvements, under Article 508, O. C. There is no reason to say that this article does not apply to possessors in bad faith.
    APPEAL from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      Wade B. Young for Plaintiff and Appellant:
    An administrator cannot, either by himself or by a third person interposed, purchase the property of the succession which he is administering.
    Such a purchaser is in bad faith, and is not entitled to either fruits or compensation for improvements.
    Where the possessor is in bad faith no offer of restitution is required.

      E. H. Farrar and L. V. Beeves for Defendants and Appellees:
    First — A purchase made by a third person at a probate sale with the intention of selling to the administrator, said intention having been formed, and said purchase made without any previous or contemporaneous contract, agreement or understanding between the parties, and without any knowledge or solicitation as to the intention on the part of the administrator, and, after the adjudication to the third person, a subsequent sale by him to the administrator of the same property, do not bring the case within the provisions of Art. 1146 C. C. In such a case the third person is not a person interposed.
    Second — In the nature of things there must be some previous or contemporaneous aggregatio mmtw'in between the interposer and the interposed person. If the latter acts upon his own volition, without being moved thereto by another, he cannot be said to be an interposed person as to that other.
    Third — A purchase of property by an administrator at probate sale, who is incompetent to buv under Art. 1146 C. C., is one of those absolute nullities established in the interest of *• » individuals which may be ratified by the parties in interest, expressly or impliedly. C. O. Art. 11; God. lib. II, 13,1 29; Scott vs. Gorton, 14 L. 122; Yaughan vs. Christine, 3 An. 328; Toullier, vol. 7, Hos. 561, 562, and vol. 8, Hos. 515 and 517.
    Fourth — The distribution among, and receipt m writing by, the heirs of their virile portion of the proceeds of such a sale, is a ratification of the sale, and an estoppel against them from contesting the same, unless the ratification was made in ignorance of all the facts, or brought about by the fraud, concealment or deceit of the administrator. Collins vs. Moore, 16 L. 75 j Bornet vs. Davis, 1 An. 329 ; Headen vs. Oubre, 2 An. 142 ; Sifctig vs. Morgan, 5 An. 574 j Coleman vs. Dewees, 3 An. 698; Gerard vs. Hirsch, 6 An. 651; Williams vs. Springfield, 15 An. 535 j D. lib. XXYII, t 9,110, where TTlpian decides that the accounting and payment to a minor after majority, by his tutor, of the proceeds of the sale of realty made by the tutor in complete violation of law, is a ratification by the minor, and an estoppel to the recovery of the estate. Michaud vs. Girod, 4 H. 503.
    Fifth — Where heirs bring an action to set aside such a sale, and aver that they have received and receipted for their virile portions of the proceeds of the same, but aver that these receipts were given in ignorance on their part of the facts charged, and that knowledge of the same had but lately come to them, it is incumbent upon them to administer affirmative •proof of ignorance and of error.
    Sixth — Where no such affirmative proof is administered, and no attempt made to adduce such proof, and no cause or excuse assigned for this fatal omission, and where the defendant administers affirmative proof of the receipt of the proceeds and the ratification of his acts, the judgment will not be one of nonsuit, but definitive against the plaintiffs. Dupre vs. Richard, 11 R. 495.
    Seventh — In no event could a recovery be had by the heirs in such a suit without a tender to the purchaser of the amount bid by him at the sale, with legal interest from the date of payment. Such a tender was the condition precedent of recovering. 21 An. 385, 425; 23 An. 354, 487; 24 An. 537; 28 An. 269.
    Eighth — Hothing could have relieved the plaintiffs of the necessity of this tender but the allegation and the proof that the defendant, over and above any claim he might have for necessary improvements, repairs and expenditures, would be indebted to them for revenue in excess of the amount they were bound to tender. 13 An. 189; 14 An. 597.
    Hinth — The rights of the possessor in bad faith are governed by Arts. 508 and 2314 of the Civil Code, and under the provisions of those articles, he is entitled to all necessary expenditures for the preservation of the property, such as taxes and necessary repairs (6 An. 356; 24 An. 253; 99 TJ. S. 513); and, in case the evictor elects to take the “ plantations, constructions and works” made by him on the realty, he is entitled to reimbursement for the value of the materials and of the price of workmanship employed in making said works. 26 An. p. 588 ; 99 TJ. S. p. 513.
    Tenth — To this rule there is an exception of doubtful authority established by the case in 12 An. 545, where the improvement made by the possessor in bad faith is inseparably connected with the soil itself. Eemolombe, vol. IX sec. 689.
    Eleventh — In addition to the reasons assigned in Ho. 6 why the judgment against the plaintiffs should be definitive and not one of nonsuit, there are two others:
    (a) This is an action of revendication, in which plaintiffs must make out their title affirmatively or have their demand rejected. Young vs. Chamberlain, 15 An. p, 454.
    (b) Plaintiffs are striving de lucfo capia/ndo, and having ignominously failed to make out their demand, should not be allowed another opportunity to vex the defendant. Their cause is one against which the courts will lean. 11L. 445 ; 1 E-. p. 23.

      Thomas J. Semmes on same side.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiffs are four of six forced heirs of their deceased mother, Mrs. Laura Wood, and they bring this suit to recover from the defendant their four-sixths interest, as such heirs, in a certain plantation situated in the parish of Tensas, which, they allege, is unlawfully held by said defendant under an adjudication made in reality to him, while he was administrator of the succession of their deceased mother, at a sale provoked by himself, in said succession, of said property belonging to said succession, in contravention of the prohibition contained in article 1146 of the Civil Code. The petition contains various other charges against the conduct of defendant in his administration of the succession, which we do not find it necessary to consider, because we think the matters referred to are either closed by the homologation of his accounts, or, even if open, are not sustained by sufficient proof.

The salient question of fact in the case is whether or not the defendant did purchase the property in contestation, “ by himself or by means of a third person,” while he was administrator of the succession to which it belonged and in which it was sold.

If he did, such purchase was in direct violation of the prohibition contained in article 1146, O. C., and is absolutely null and void. It is not denied 'that he wa^ administrator of the succession, that the property belonged to the succession, and was sold under order oí the probate court rendered on his own petition as administrator. It was adjudicated to one Wade Harrison, who subsequently made title to defendant, and it is averred that Harrison was a party interposed by defendant, and that the latter was the real purchaser.

It is clearly established that Harrison was the brother-in-law of defendant; that he lived in Mississippi; that he came to the parish of Tensas about the time of the sale; that he and Nicholls were present together at the sale; that, on the day of sale, viz: May 8th, 1869, defendant gave him a full receipt for the purchase price; that, although the title was made to him, he did not pay the price, but that the same was assumed and accounted for as cash by defendant; that Harrison left immediately for home, and the plantation remained in the possession and under the control of defendant; that defendant then proceeded to close up the succession, file and homologate his accounts, and settle with the heirs; and that, some months after the receipts of the heirs had been obtained, Harrison, on the 26th of December, 1870, reconveyed the place to defendant for the pretended price of three thousand dollars, recited in the deed to have been paid and delivered, in cash, in the presence of the officer and subscribing witnesses, although it is admitted that no such payment was really made.

The mere recital of these undisputed facts produces a powerful impression on the mind that defendant was the real actor in the purchase and Harrison merely his representative. They evince a studious disguise and concealment of the real transaction, which suggest an ulterior motive for covering up the truth. How did it happen that Harrison, a resident of another State, chanced to'turn up in Tensas just at the date of the sale ? Why did he purchase the plantation ? Why did he immediately turn over his bargain to Nicholls without profit ? Why the fictitious receipt for the price ? Why the false title to him ? Why did he leave without re-transfer to Nicholls ? Why the long delay until some months after defendant had wound up the succession and obtained the final receipts of the heirs ? Why the circumstantial, and yet false, recital in the reconveyance to the effect that the consideration was the price of $3000, presently paid in cash in the presence of the officer and of the subscribing witnesses ? These queries inevitably suggest themselves and require clear and'-satisfactory answers. The evidence, far from furnishing such answers, adds force to the suspiciousness of the proceeding.

A. T. Wood testifies that he had a conversation with Harrison during the past year, in which the latter stated that “ he had come to purchase this property at the request of Joseph Nicholls, and for the use of Joseph Nicholls.”

Neither defendant nor Harrison contradicts the truth of this statement.

Harrison, after stating that after the adjudication was made to him Nicholls came to him and proposed to take the purchase off of his hands and that he consented, is driven to admit: first, that he bid in the property with the intention of selling to Nicholls, and finally, that “ he bid the value of the property for the use of the defendant, because he thought it was for the interest of defendant and the heirs.” It is noteworthy that Harrison was made the witness of plaintiffs, and that counsel for defendant did not cross-examine him.

The testimony of defendant himself is vague and inconclusive. He does say that “ the purchase of the plantation was not made by virtue of any agreement or compact between me and Mr. Harrison;” and he says that it was after the sale that he agreed to take the purchase off of Harrison’s hands. But he does not negative the idea that there may have been an understanding between them before the sale. He does not pretend to explain any of the suspicious circumstances. On cross-examination, he says: “ I don’t know that any one requested Harrison to purchase this property. I don’t knoio that there had been any conversations between us as to the purchase of the place. There may have been.”

Erom the whole evidence, we can reach no other conclusion than that announced by the j udge a quo, that it establishes “ the fact that Harrison was a party interposed and purchased for the defendant, then the administrator, and the sale was, therefore, under the law, null and void.

II.

It is contended, however, that the nullity here set up, though absolute, is one established in the interest of individuals, and may be ratified by the parties in interest. This is no doubt true, subject to certain limitations which do not affect the present case.

C. C. 11; Scott vs. Gorton, 14 La. 122-3; 7 Toullier, Nos. 558, 561.

It is next said that the receipt by these heirs of their virile shares of the proceeds of this sale operates a ratification of the sale and an estoppel against their contesting its validity, unless the ratification was made in ignorance of the facts from which the nullity results. The authorities quoted by defendant’s counsel sustain this proposition. But we think the ratification relied on cannot avail defendant here, for two reasons, viz:

1st. The estoppel should have been specially pleaded and cannot be set up under the general issue.

It is manifestly a means of defense, analogous to payment, release, novation, etc., going to show the extinction of an obligation proved to have once existed, and must, therefore, be pleaded specially.

6 L. 157; 9 L. Ill; 17 L. 82, 259, 371; 19 La. 512; 5 R. 186; 9 R. 256; 6 An. 778.

We cannot concede the proposition contended for by defendant’s counsel, that the mere allegation in plaintiffs’ petition, that they had received the proceeds of sale in ignorance of the fact which created its nullity, dispensed the defendant from pleading this special defense.

This allegation was mere surplusage, not essential to their recovery, and not necessary to be proved under the general issue. The general denial-only puts at issue the facts necessary to plaintiffs’ recovery.

19 L. 366; 5 R. 117; 10 R. 153; 13 An. 375.

The allegations of the petition on this point amount merely to a denial that they had ratified, and are not different in effect from an allegation in a petition of debt, that it had never been paid. Would it be claimed that such allegation would dispense a defendant from pleading payment ?

2d. The foregoing objection is, however, of little consequence in this case, because the evidence satisfies us that the plaintiffs were, and must have been, ignorant of the fact that defendant was the purchaser. How could they have known this fact ? Nicholls does not pretend to have informed them of it. The bid was made by Harrison. The receipt for the price was given to Harrison. The title was made to Harrison. The property was kept in Harrison’s name until after the whole transaction was consummated and the receipts of the heirs obtained. Even when the reconveyance was made to defendant, care was taken to hide all connexion with the original transaction by falsely reciting a different price and its actual payment in cash in presence of the officer and witnesses. In view of these painstaking efforts to conceal the fact of the purchase having been made by defendant, and in absence of any circumstance even suggesting any knowledge on the part of plaintiffs until the statement made to one of them just before this suit, by Harrison, it would have been superfluous to administer further proof of ignorance, and was no doubt so regarded by plaintiffs’ counsel.

III.

The judge a quo gave a judgment of nonsuit against plaintiffs on the grounds that, in a legal sense, as heirs of their mother, plaintiffs must be regarded as the vendors of defendant, and that it was a necessary condition precedent to their right of action to annul the sale that they should prove a tender of the sums received by them on account of the price.

The doctrine of antecedent tender is derived from no textual provision of the law, but rests upon equitable principles, and should be controlled by equitable considerations.

It has been applied in redhibitory actions, in actions to rescind sales for breach of the resolutory condition, in actions of rescission of commutative contracts, in suits-to compel conveyance where the legal title is in defendant and the equitable title in plaintiff; in suits for the enforcement of relative nullities, and in similar cases.

After a somewhat exhaustive examination, we find no instance of its application in a case like the present, where the nullity of defendant’s title is absolute, resulting from the active violation of a prohibitory law made to regulate defendant’s conduct in a fiduciary capacity, and where such violation was disguised and concealed from plaintiffs, who received what was paid to them in ignorance of such violation, and who only discovered the fact years after the payment. It is manifest there was never any contract of sale and defendant never had any title. Defendant’s claim is not a claim for restitution of price, for there was no sale, and, therefore, no price. The title of plaintiffs has never been divested. Their right to recover the property is absolute, and not dependent upon any antecedent restitution. Defendant’s right to recover does not spring from any contract which is annulled, but is an equitable claim for money paid by him for the benefit of plaintiffs.

We discover no principle of equity requiring plaintiffs to tender this money to defendant before asserting their absolute title to property belonging to them and held by defendant as a mere possessor without title. Ail that equity could possibly require would be to permit him to set up his claim in reeonvention, which would not be denied.

An additional reason for disregarding the objection of want of tender in this case, is that such plea should have been set up in limine or, at least, specially pleaded. We cannot recognize the right of defendant to take his chance on a trial of the merits, and when defeated, to set up a plea in abatement of this kind.

Finally, it appears from the pleadings and proofs that defendant is, in the sense of the law, a possessor in bad faith, responsible for fruits and revenues during more than ten years, and worth at least one thousand dollars a year. In asserting such a claim there was no equity nor necessity for plaintiffs to make a tender of the very much smaller amount received by them.

Robert vs. Brown, 14 An. 597.

Woods vs. Woods, 13 An. 189.

IV.

As just stated, defendant is a possessor in bad faith and, as such, bound to the restitution of fruits and revenues. These are alleged to have been fully worth one thousand dollars per annum, during the entire time of defendant’s possession, and this allegation is sustained by the direct and positive testimony of two witnesses, who are entirely uncontradicted.

Per contra, defendant is undoubtedly entitled to necessary expenses for the preservation of the property, under article 2314 O. 0., and to a proper adjustment of his claims for constructions and improvements, under article 508, C. C. We find not even plausibility in the contention of plaintiffs’ counsel that this article does not refer to possessors in bad faith.

We are somewhat embarrassed by the anomalous circumstance that defendant has not, in his pleadings, asserted or prayed for judgment on such claims. This would undoubtedly be necessary under the general rules of pleading; but inasmuch as evidence was received on these points, without objection in the court below, and as justice requires an accounting in such cases, we will not debar the defendant from relief.

The evidence, however, is entirely insufficient to enable us to deter - mine his rights under the law.

As to expenses and repairs, he is only entitled to such as were neces - sary for the preservation of the property, under the express terms of C. C. 2314. As to constructions and works made with his own materials, the owner would ordinarily have the option of requiring them to be demolished and removed, or of keeping them and paying to the possessor the actual present value of the materials and workmanship. In the present case, however, as plaintiffs only recover an undivided interest in the land, they are not authorized to require the removal and demolition against the will of théir co-owners, and must, therefore, be confined to the last mentioned alternative.

As to improvements by their nature inseparable from the soil, such as ditching, wells, etc.', he is not entitled to compensation.

See 12 An. 545; 16 An. 243; 24 An. 253; 26 An. 588; 99 U. S. 513.

In view of the insufficiency of the evidence in the present record to enable us to make an intelligent finding on these points, we will shape our decree so as to preserve the rights of parties.

It is, therefor?, ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiffs and against the defendant, recognizing and declaring the plaintiffs to be the lawful owners of four undivided sixths interest in the property described in the petition herein, and that plaintiffs have judgment against defendant for four-sixths of the rents and revenues of said property, at the rate of one thousand dollars per annum, from May 8th, 1869, subject to a credit of seven hundred and fifty-three 56-100 dollars (being the amounts received by plaintiffs from defendant in settlement of their mother’s succession), with legal interest thereon from July 23d, 1869.

It is further ordered that this cause be remanded to the District Court for further proceedings for the purpose of ascertaining the amount, if any, which may be due by plaintiffs to defendant for necessary expenses for the preservation of the property and for constructions and works, according to the principles settled in the foregoing opinion, said amount when so found to be offset against the foregoing judgment; and that execution of the money judgment above rendered in favor of plaintiffs be suspended until the settlement of defendant’s rights and claims, as above set forth by final decree, defendant and appellee to pay costs of the lower court and of this appeal.

On Application bob Rehearing.

Todd, J.

We have carefully re-examined our former decree in connection with the argument of defendant’s counsel in this application for a rehearing, and we are unable to change or modify our conclusions as expressed therein in regard to the nullity of the sale attacked and the right of the plaintiffs to recover their interest in the property; and that no ratification of this sale, express or implied, had been made^by the plaintiffs.

The sole issues strictly involved in this case, under the pleadings, were the validity of the sale and the rent of the property sought to be recovered. The petition charged the nullity of the sale and set out the grounds thereof. The answer was a general denial, containing no demand for the value of improvements of any kind, nor claim for reclamation on account of sums paid out for the benefit of the succession or of the plaintiffs as heirs thereto, nor any allegation that the sale in question was in any manner approved or ratified by the plaintiffs. The reason why, under these pleadings, we allowed the offset of $753 66, mentioned in the decree, was that this amount was expressly admitted in the petition to have been paid plaintiffs by the defendant. .

We remanded the case with a view to ascertain and fix the amounts to which the defendant might be entitled, under article 2314 C. O., for expenses necessarily incurred in the preservation of the property, and also to be more exactly informed respecting the value of the works and constructions made by the defendant, for which he was entitled to reimbursement under article 508 of the Code; but, by the terms of the decree, excluded from such estimation such improvements or works as by their nature were inseparable from the soil, such as ditching, wells, etc.

Considering that the accounts of the defendant as administrator were offered and filed in evidence without objection, which it is claimed by him show the payment of the debts of the succession of plaintiffs’ mother, and payments inuring to the benefit of plaintiffs as heirs thereto, and for which he should be reimbursed, and further reflection satisfying us that the end of justice and the purposes of a full, fair and equitable settlement between the parties require a full inquiry touching these alleged payments, and also in relation to the improvements, including that class of improvements excluded by our former decree, we feel constrained to modify that decree by enlarging the scope and intendment thereof. In doing so, however, we express no opinion whether any additional credits should be allowed the defendant on account of these alleged payments, nor whether he is or not entitled to reimbursement for improvements, inseparable from the soil, excluded by our previous decree; these matters remain open for future adjudication.

It is, therefore, ordered that the decree heretofore rendered remain undisturbed, except as modified by the views hereinabove expressed, and that the case be remanded with authority to the defendant to amend his answer by setting forth specifically the amounts claimed by him on account of payment of the debts of the succession; and also the amounts for which he claims reimbursement for works, constructions, and improvements made by him on the lands in controversy of every kind and description, with the right to both parties to offer evidence touching said matters of inquiry herein specified, subject to all legal objections to be determined by the judge of the first instance; and that in every other respect the said previous decree is re-affirmed.


author: Poché, J. Fenner, J.

text:
    No. 7955.
    Michael Troendle vs. Onézime DeBouchel.
    A mortgage creditor with the pact De non alienando may disregard the seizure of the mortgaged property made by a junior mortgagee, and proceed by seizure and sale in another court.
    "When the administrator oí a Succession applies for an order of sale of property to pay debts, and annexes to his Petition a list of the debts to be paid, it is a sufficient acknowledgment of such debts to interrupt prescription.
    The acknowledgment of a debt by the administrator of a Succession, so as to interrupt prescription, may be made in other ways than in the sacramental manner prescribed by Art. 985, C. P.
    The mortgage creditor with the pact De non alienando may ignore subsequent transfers of the property and proceed via eccecutiva against the original mortgagor; but, if he choose to sue such subsequent vendees, instead of the original'mortgagor, he must proceed, as against third possessors, by the hypothecary action proper, and not via eccecutiva.

    APPEAL from the Sixth District Court for the parish of Orleans. Hightor J.

      B. G. Elliott for Plaintiff and Appellee:
    First — That the holder of a mortgage with the non-alienation clause can proceed directly against the property, making the third possessor defendant.]
    Second — That when a succession is insolvent the demand and notice required "by Act 69 are useless and not necessary, and the holder of mortgage containing the pact can proceed against the property in the hands of the actual owner and possessor via executiva.

    Third — That the senior mortgage creditor is not bound or affected by any sale made by writ issued at the instance of a second mortgagee.
    Fourth — That it is not necessary or sacramental that an acknowledgment of a debt by an executor should be made on the back of the note, or on a piece of paper annexed to it. Any writing in explicit terms recognizing the existence and validity of the debt, is sufficient.
    Fifth — That, as between creditors, parol testimony oanbe received as to payment and renewals by the deceased of a note, so as to take it out of prescription.
    Sixth — That after a claim has been acknowledged, prescription is suspended so long as the mortgaged property remains in the possession of the executors, and the mortgage claim is” not ignored.

      J. Ad. Bozier for Defendant and Appellant:
    First — The executory proceedings must be instituted against the mortgagor, and Dot against a third possessor, notwithstanding the latter may be the owner. The pact de non alienando does not dispense a party from complying with the above.
    'Second — The price of the adjudication is within the control of the court that ordered the sale, and the distribution thereof can alone be passed upon by that court. All rights as to priority, privilege or mortgage, must bo pas3edupon alone by that court.
    Third — The purchaser takes the property free from encumbrances, and the creditors of the succession of Boutté must enforce their preferences on the proceeds as. if the sale had taken place in the Probate Court.
    Fourth — The court rendering the judgment has the execution of it. C. P. 617.
    Fifth — The executory proceedings should have beeu instituted against the executors of Boutté, Francis P. Boutté, deceased, being the maker of the note secured by mortgage, and he having executed the mortgage.
    Seventh — The executors never did acknowledge the demand of the plaintiff. The attempt is made in the account filed June 4ch, 1879, but at that time prescription had taken place. One of the accounts never was filed or used — it is of no validity.
    FJighth — The acknowledgments of Troendle, plaintiff on the back of the note cannot interrupt prescription. ISTo parol testimony could be introduced. C. C. 2278.
   The opinion of the Court was delivered by

Poché, J.

On the 27th of August, 1866, F. P. Boutté, who owned one undivided third of a piece of property on the corner of Commercial Alley and St. Charles street, in this city, mortgaged the same to secure a note of $1200, which is now held by plaintiff, and on which he has sued out executory process against the mortgaged premises, now in the possession of the defendant.

Subsequently, Boutté acquired another third of the same property, and, in August, 1869, he mortgaged his two-thirds of that property in favor of C. P. Berens.

Boutté died in February, 1875, and S. P. DeBlane and H. Boutté were qualified as executors of his estate.

In March, 1879, under a foreclosure of the Berens mortgage, the two-thirds of the property were adjudicated to defendant, for $10,500 cash. In that case executory process had issued from the Fourth District Court, parish of Orleans, and, on appeal, the suit was decided in this Court, and is reported in 31 An., page 112.

Now, in March, 1880, the present suit was begun by plaintiff, who issued executory process on the mortgage of 1866, against the defendant, DeBouchel, actual possessor of the property mortgaged to secure the note held by plaintiff.

. His proceedings were enjoined by defendant, who relies upon the following defense:

1st. That the Sixth District Court had no jurisdiction in the premises, for the reason that the property having been seized and sold in the suit of Berens vs. Executors of Boutte in the Fourth District Court, and the proceeds of said sale being under the control of said Fourth District Court, plaintiff should have gone into that court and sought therein to reach said funds to which his mortgage, if he had any, had been transferred.

2d. That plaintiff’s claim was barred by the prescription of five years.

3d. That plaintiff could not proceed directly against the third possessor by executory process, but should have resorted to the hypothecary action.

First — Plaintiff, holding a mortgage, with the clause de non alienando, superior in rank to the Berens mortgage, under which defendant had become the adjudicates, had the undoubted right, under our jurisprudence, to proceed, in any competent court, to enforce his mortgage rights. His mortgagor, Boutte, could perform no act impairing his rights under the act of 1866, and the rights acquired by Berens under and by virtue of his mortgage of 1869, were secondary to his; plaintiff was not a party to the executory process instituted by Berens, and his rights could not be modified, restricted or in any way affected by any act or proceeding performed or instituted by Berens, and nothing could compel him to seek redress before the forum selected by Berens for the vindication of his rights.

It was, therefore, competent for him to proceed before any court vested with j urisdiction over matters similar to his claim, and the Sixth District Court having concurrent j urisdiction with the Fourth, was clearly vested with jurisdiction over the subject-matter. Defendant urges that the executors of the Boutte estate, having taken a rule to transfer to the Probate Court the proceeds of the sale realized under Berens’ execution, and the Fourth Court having refused the order of transfer, plaintiff is concluded by such ruling, which is res adjudícala as to him. We cannot perceive how such a ruling can affect the rights of the holder of the ranking mortgage, and much less how such a creditor can be affected by a judgment in a proceeding to which he was no party. He was not even compelled to litigate his rights in the Probate Court.

Second — On the plea of prescription, plaintiff’s note is prescribed upon its face, but he relies upon several acts interrupting said prescription.

1st. A renewal in writing endorsed on said note, and signed by Boutté, on the 27th of August, 1870, under which the note was renewed to the 27th of August, 1871, by virtue of which prescription was interrupted to the 27th of August, 1876.

2d. By a petition, filed by the executors on the 27th of March, 1875, for the sale of the succession property in order to pay debts, a list of which was annexed to said petition, which list contained and recognized plaintiff’s claim and mortgage.

Plaintiff also relies upon an account of administration, drawn and signed by the executors, under date of 23d of February, 1876, and on a similar account, under date of June 4th, 1879, in both of which plaintiff’s claim and his mortgage were specifically recognized. But, concluding that the two first grounds of interruption of prescription urged by him are sufficient to sanction his plea, we shall not discuss the two others, nor the numerous bills of exception taken to the admission and to the rejection of the testimony offered in support thereof.

From an inspection of the original note which was sent up with the record, by comparing the signature of Boutté on the face of the note, and from the original endorsement, and considering the testimony of witnesses who were familiar .with his signature, we are satisfied, beyond doubt, that F. P. Boutté did sign the endorsed renewal of the note dated August 27th, 1870, by which the maturity of the note was postponed to August 27th, 1871, and that the note was thereby kept alive until the 27th of August, 1876. The record further shows that, on the 27th of March, 1875, the executors presented to the Probate Court a petition for an order of sale of the succession property for the purpose of paying the debts of the succession, which were enumerated and described in.a list of debts of the succession, annexed to their petition, and that on said list the executors described and recognized the debt of plaintiff now sued on.

It appears that this list has since been mislaid, or lost, and could not be produced on the trial of this case. Whereupon plaintiff offered to prove the previous existence and the subsequent loss of the same by the testimony of a deputy clerk who had seen it in the record and filed with the petition; by the. testimony of the attorney who had drawn and presented it, and by that of the executors who had signed the same. Defendant objected to that testimony, on the ground that no other court but the Probate Court, where the list had been presented and filed, could inquire into the loss of the same. The objection is manifestly untenable and at variance with the well established rules of evidence, under which a party, after properly accounting for the loss of documents or other primary evidence, is allowed to introduce secondary evidence. The fact that a document is filed in and belongs to a court, cannot deprive another court from using the same document or a copy of the same in evidence; and it follows that any other court can investigate the loss of such document, as a step towards the introduction of testimony to prove its contents. Defendant further objected to the introduction of the document itself, or of the proof of its contents, because the administrator or executor had not recognized plaintiff’s debt in accordance with the provisions of Article 985 of the Code of Practice, requiring the written declaration to be made on the instrument evidencing the claim, and to submit the same to the judge. We do not understand these provisions to apply to acts of interruption of prescription, which are regulated by the general laws of prescription.-

In the case of Berens vs. Executors of Boutté, 31 An. 112, our immediate predecessors gave effect to this identical list of debts, as an absolute interruption of prescription. See, also, 29 An. 493.

Parol testimony was, therefore, properly admitted to show the existence and the subsequent loss of the list of debts presented by the executors on March 27th, 1875; and parol testimony was also properly admitted to show the contents of the missing document. And from that evidence we are fully satisfied that plaintiff’s claim with mortgage was therein fully set forth, and specifically recognized, thus operating a legal interruption of prescription, by virtue of which plaintiff’s claim was kept alive until the 27th of March, 1880. 16 An. 261; 23 An. 184, 228; 30 An. 858.

Now, plaintiff’s petition for executory process having been filed on the 6th of March, 1880, prescription had not yet acquired, and the plea must, therefore, be overruled.

The record further shows that plaintiff’s mortgage was duly inscribed in the mortgage office, and reinscribed within two years, on the 24th of August, 1876. Defendant oojected to the introduction of the Recorder’s certificate of reinscription on the ground, that the reinscription must be proven by a copy of the full entry. The Recorder’s certificate shows that the reinscription was made in the same manner as the first inscription. It was properly admitted, and it made full proof of the reinscription.

If defendant suspected that the certificate was incorrect or untrue, it was his right to have introduced evidence in rebuttal, or proven the incorrectness or untruth of the certificate.

Third — The third ground of defendant’s injunction is levelled at the right of plaintiff to proceed summarily against him, in thus resorting to the hypothecary action.

Plaintiff holds a mortgage with the pact de non alienando, and antecedent in date and, therefore, superior in rank, in so far as the original share of Boutte in the property is concerned, to the mortgage granted to Berens, in the foreclosure of which defendant became the adjudicates of two-thirds of the property, including the portion which was burdened by plaintiff’s ranking mortgage.

Under the plain and unambiguous provisions of our Code of Practice, Article 683, the purchaser acquired the property cum onere, and was entitled to retain in his hands the amount of the pre-existing and ranking mortgage.

The rights of plaintiff to claim his security on the property specially mortgaged in his favor cannot be jeopardized or affected by a sale under a mortgage or judgment of inferior rank. The defendant urges that he has paid, or at least secured, the full price of his adjudication, the proceeds of which are under the control of, and under discussion in, the Fourth District Court.

But, under the law, plaintiff, as ranking mortgagee, can ignore such adjudication and treat it as a nullity, for, under the Code of Practice, the purchaser was to have been informed of the pre-existing mortgage, and required to have provided for it, in default of which the sale was null and void, as being made in violation of a positive prohibitory law. In that case he could have proceeded directly against his mortgagor or his legal representatives, without warning or notice to the adjudicatee; or, he may elect, as he seems to have done in this case, to treat the adjudicatee as a third possessor who has assumed his mortgage, and quoad his claim, has assumed all the obligations, and taken the place of his original mortgagor, and to proceed against him via executiva.

This rule of law has been expounded and consecrated in an unbroken line of decisions of .this Court, and at this stage of our jurisprudence can no longer be considered as a subject of discussion. 3 An. 543; 12 An. 148; 14 An. 149; 19 An. 125; 27 An. 60.

The views which we have herein expressed, virtually dispose of the numerous bills of exception taken by both parties during the progress of the trial in the District Court, and, for the reasons which we have considered, we conclude that the judge a quo was correct in dissolving defendant’s injunction. But we notice that he condemns the principal and his surety on the injunction bond to pay damages in the sum of one hundred and fifty dollars; and we shall amend his judgment in that particular, reserving the right of plaintiff to sue for damages in a separate action on the bond.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended in so far as it allows damages on the injunction bond; and that the rights of plaintiff to sue for damages on said bond in a separate action be reserved; and that said judgment be affirmed in all other respects, defendant to pay costs of the lower court, and plaintiff to pay the costs of appeal.

Chief Justice Bermudez, having been of counsel in this ease, recuses himself.

On Rehearing.

The opinion of the Court was delivered by

Fenner, J.

After a thorough re-examination of this case, we find ourselves compelled to reverse our former conclusions, as to the right of plaintiff to proceed via executiva against the defendant directly, the latter not being the original mortgagor of plaintiff, and having never conventionally assumed the mortgage, but being only a purchaser of the property mortgaged at judicial sale.

This point did not command as careful consideration in our original opinion, as it would have done, had it not been treated by counsel on both sides, in their first argument, as one of 'minor importance.

Although, under Articles 679 and 706 of the Code of Practice, the sale to the defendant transferred the property to him, subject to plaintiff’s mortgage, which primed that of the seizing creditor, and, although the mortgage of plaintiff contains the pact de non alienando, we can find no warrant for allowing any other hypothecary action against the defendant, than the hypothecary action proper. Such is the undoubted import of Article 709 C. P., which declares that “ the hypothecary action lies against the purchaser of a property seized, which is subject to privileges and mortgages, in favor of such creditors as have said privileges and mortgages, in the same manner and under the same rules and restrictions as are applicable to a third possessor of mortgaged property.”

Plaintiff’s counsel has urged with great earnestness, and we concede, that the term “ hypothecary action ” is generic and embraces as well ex-ecutory proceedings as the hypothecary action proper. But the last phrase of the Article 769, taken in connection with Articles 68 et seq., conclusively shows that the hypothecary action proper is alone referred to. No decision of this Court has ever, to our knowledge, held otherwise.

It is undoubtedly true that plaintiff holding a mortgage importing confession of judgment and containing the npn-alienation pact, cannot, by any sale, conventional or judicial, to which he was not a party, be' deprived of his right to executory process; but he must exercise that right contradictorily with his original mortgagor in the mode prescribed by law, and not directly against the defendant purchaser, who, by the very terms of the law, can only be pursued " in the same mannér and under the same rules and restrictions as are applicable to a third possessor of a mortgaged property.” What this " manner ” and these “ rules and restrictions ” are, had been expressly defined by the previous Article 68 and following.

Our conclusions on this question necessitate an entire change of our decree.

It is, therefore, ordered that our former decree herein be annulled and set aside; and it is now ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and that there be judgment in favor of defendant and against the plaintiff herein, maintaining the exception to the mode of proceeding, and, on that ground, perpetuating the injunction issued herein, plaintiff to pay the costs of the lower court and of this appeal.

The Chief Justice recuses himself, having been of counsel.


author: Fenner, J. Levy, J.

text:
    No. 8273.
    The State of Louisiana ex rel. Ernest Gravois et al. vs. The Judge of the Twenty-Second Judicial District Court for the Parish of St. James et al.
    Pending a suspensive appeal from an order dissolving an. injunction on. bond, the injunction itself remains in full force and its restraining effect should not he, in any manner, impaired by any subsequent action of the lower Court.
    A counter-injunction in the meantime should, therefore, not he granted and is an invasion of the appellate jurisdiction of this Court, and, in the premises, an indirect disobedience of its mandate ordering the original injunction to he re-instated.
    A Mandamus lies to compel the lower Court to grant a suspensive appeal from its .order dissolving on bond another injunction taken hv the original plaintiffs in injunction and other parties, for the same restraining purposes.
    And a Prohibition lies to prevent said lower Court from permitting the exeoution of the order to bond and from violating in other manners the original injunction, during the suspensive appeal from the order dissolving the same on bond.
    APPLICATION for Mandamus and Prohibition.

      Rob’t <?. JDugué for the Belators;
    An appeal lies from an order dissolving an injunction on bond, whenever it may cause irreparable injury — The injury is irreparable when the act complained of amounts to a change of possession of immovable property.
    A mandamus lies to compel a district judge to grant an appeal from such an order, and he will he prohibited from enforcing it until the appeal is determined. 14 An. 57 ; 11 An. 39; 22 An. 512; 24 An. 154; 26 An. 603 ; 23 An. 51.

      A fortiori, he cannot enforce it, when it has been set aside on'appeal.
    Pending an appeal from an order dissolving an injunction on bond, a counter-injunction oannot he allowed. 28 An. 143; 210; Opin. Bk. 45, p. 507.

      Where an appeal is granted and the appeal bond filed within ten days from the date of the judgment appealed from, any attempt to execute it before the expiration of the ten days, is unauthorized, and has no effect. 27 An. 431; C. P. 575.
    A judge has no authority to rescind an injunction at chambers and without bond, on the ex parte application of one of fifty defendants, and without notice to the plaintiffs. 31 An. 171; 29 An. 362.
    Where two injunctions are conflicting and are so irreconcilable that both cannot subsist to* gether, the last injunction cannot be enforced pending the existence of the first.
    A mandamus may be issued, even when a party has other means of reliéf, if the slowness of ordinary legal forms is likely to produce too much delay. It should be issued in all cases where justice and reason require that some mode should exist of redressing a wrong or abuse. C. P. 830; Const. 1879, Art. 90.

      Sims & Poché for the Respondents :
    The facts are succinctly stated in the answers filed by the District Judge and the defendant, Ealgoust.
    The order granted by the judge on the 30th of March, 1881, annulling the order of injunction signed on the same day, in the matter of Ernest Gravois et al. vs. Eelix Ealgoust et al„ was the exercise of a power inherent in all countries to set aside ex parte orders when in their judgment necessary to promote the ends of justice.
    If the inferior court discovers that an order given by it is erroneous, it may itself set it aside, and the same power may be exercised by the Supreme Court. 3 H. S. 392; 6 An. 548; 9 An. 336; 11 An. 728; 12 An. 345; 33 An. 30; Hennen, p. 330, Ho. 3, and authorities cited.
    The rescinding order was filed on the 30th of March. It was granted and filed while the order of injunction endorsed on the petition of Gravois et al. vs. Ealgoust was still under the control of the judge. At that time the plaintiffs (relators herein) had not filed any petition, bond or other paper in that suit, nor had they made any attempt to do so.
    The writs of injunction, erroneously issued by the clerk aiterthe order of injunction had been rescinded by the judge, were mere nullities, and were set aside at the instance of Ealgoust to prevent irreparable injury.
    ‘The appeal granted by the judge from the order annulling the order of injunction did not reinstate the rescinded order. The only effect of that appeal was to enable the relators to have the authority or power of the judge, under the circumstances of the case as it then stood, to rescind the order of injunction, reviewed and passed upon by this Court on the trial of the appeal.
    We cite by analogy Art. 23 of the Civil Code : “ The repeal of a repealing law does not revive the first law.” So, an appeal from an annulling order does not revive the annulled order.
    If this Court should, on appeal, affirm the rescinding order or dismiss the appeal, the unauthorized action of the clerk and the parties in the meantime would have caused confusion in the administration of justice, and would have worked irreparable injury to the defendant, Ealgoust.
    'The order of appeal prayed for, from the order setting aside the unauthorized writ issued by the clerk, was properly refused. This last order was obtained by Ealgoust under reservation of his right to treat the acts of the clerk as absolute nullities, and was resorted to to protect his property against wrongful and irreparable injury. It was in the nature of a declaration of the nullity of the clerk’s action in the face of a positive prohibition by the judge.
    In appealing from the rescinding order, relators exhausted their remedy.
    •Since that appeal was taken, neither the defendant. Ealgoust, nor the judge has done any act which constitutes an invasion of the rights of the relators under that appeal or the appellate jurisdiction of this Court. Ealgoust is simply trying to vindicate his rights before the Court.
    The injunction suit of Jones et al. vs. Ealgoust, Ho. 770, is not before this Court now. It was brought up on an incidental or preliminary question as to the right of the defendant to have the injunction dissolved on bond, which your Honors have disposed of and the cause is pending before the District Court. The appellate jurisdiction of this Courtis in no man* nor, shape or form involved in that case at this time. Only one of the relators here is a party to that suit, which is awaiting tidal before the District Court.
    The injunction in the suit of Felix Halgoust vs. Jean Jones et al., Ho. 773, was rightfully granted by the judge. The allegations of that petition fully set forth the grounds of plaintiff’s complaint and distinctly charged the wrongful acts of the defendants, with consequent irreparable damage and injury to him and his property. 29 An.
    That suitis pending before the District Court, and this Court has acquired no jurisdiction over it.
    The position taken by the relators in their petition to this Court, that because one of them obtained an injunction against the defendant, Halgoust, in suit Ho. 770, which has never been tried, ho was thereby precluded and estopped from invoking the process of the courts for the purpose of protecting his property against spoliation and destiuction and wrongful appropriation by the plaintiffs in that suit, is the boldest and baldest of assumptions.
    In "Wells vs. City of New Orleans, 32 An. 676, this Court said: “ The city of New Orleans has the right to avail itself of the remedy which the law gives. * * * * It can hardly be contended, and we surely will not recognize the proposition, that the judge of the Sixth District Court, by granting to Wells the preliminary injunction, intended or contemplated to forbid the city a resort to legal proceedings and auxiliary legal remedies, or, in other words, virtually enjoined itself from the exercise of judicial powers. It would be an unmeasurable construction to place upon the wording of the writ of injunction ‘ restraining from closing up or interfering with the business of petitioner ’ to stretch its meaning to include an inhibition on the city to bring suit and seek by legal means to enforce in the courts the collection of its claim. If such had been the avowed object of the plaintiff, we do not think his prayer for an injunction should have been entertained. We construe the injunction issued against the city as being confined in its restraining character to interference by extrajudicial means for non-payment of license.”
    Inthesame case your Honors held that the matter at issue between Wells and the city in that litigation, was “a question involved in the suit now pending and to be decided by the Sixth District Court.”
    The suit of Helix Halgoust vs. Pierre Portal et als., referred to in the petition of relators, embraces all of the relators who were not enjoined in the suit Ho. 773. An injunction was sought and obtained to arrest the relators in their acts oí high-handed and outrageous lawlessness, and that they were tnereby prohibited from destroying Falgoust’s property or going on his plantation at any point or upon any pretext, except by way of the public Tacherie cross-road which traverses it.
    The relators sought under cover of an injunction to continue and perpetuate their wrongful and criminal acts. When their identity and purpose was exposed, the judge performed a simple duty in promptly rescinding the order which, under the circumstances, he had unadvisedly and improvidently signed, and his signature to which the relators had wrongfully procured.
    The suit of Halgoust vs. Portal et als. is pending before the the District Court. It was not, prior to the application of the relators, before tbis Court ou any question, incidental or otherwise, The appellate jurisdiction of your Honors is in no manner involved therein.
    These three injunction suits, therefore, Jones et al. vs. Halgoust, Halgoust vs. Jones et al., and Halgoust vs. Portal et al», are all now pending before the District Court of St. James where they are to be tried and determined on the issues raised in each respectively by the pleadings.
    The object of the relators in this proceeding is obvious. They would have your Honors tako original jurisdiction of and try on the merits, those three pending injunction suits upon a state of facts made up by them. This they expect to accomplish by creating confusion in tlie mind of tlie Court as to tlie existing state of facts and the actual status of tho.se suits and hy lugging the latter into a totally irrelevant side issue before this Court.
    To state the facts as they do exist is to expose this sinister design on the part of the relators.
   The opinion of the Court was delivered by

Fenner, J.

On October25th, 1880, Jean Torres andDésiré DeBlane (two of the present relators), obtained, in the District Court for the parish of St. James, an injunction restraining Felix Falgoust, his friends, agents and servants, from closing, changing, or in any way obstructing a certain alleged public road running through the lands of said Falgoust, and also from undoing, destroying or otherwise interfering with any repairs which the said plaintiffs may make or cause to be made on the said road.

On the 3d of November, Falgoust applied for, and obtained, an order dissolving the injunction on bond, and made and filed his bond on the same day.

On the 6th of November, the plaintiffs applied for and obtained a suspensive appeal from the dissolving order, which was brought to this court, and, after hearing, we rendered our decree reversing the dissolving order and ordering the injunction to be reinstated and the case remanded to be proceeded with according to law.

The effect of the suspensive appeal and of our decree therein was, in contemplation of law, to continue the injunction in uninterrupted force from the date of its issuance until it shall be finally dissolved in accordance with law.

The scope and effect of the injunction, as apparent from its terms, were, unquestionably, to maintain, during its pendency, the status of the road as a public road, and to prevent Falgoust from obstructing and interfering with its use as such.

In the ordinary course of judicial proceedings, the parties and all persons, as good citizens, would have patiently abided the final determination of that cause for a solution of their respective rights.

But, on the 3d of November, before the. suspensive appeal was applied for, but during the delay allowed therefor, Falgoust applied for and obtained an injunction against Torres and DeBlane, restraining the latter, in effect, from entering or crossing his place, through the same road, which he had been enjoined from obstructing, or preventing them from passing over, or from in any manner interfering with him in the use and enjoyment of his said property.

It is plain that this injunction is counter to, and destructive of, the prior injunction, and should not have been granted until after the delay for suspensive appeal from the dissolving order had expired. When the suspensive appeal was taken, the last injunction became inoperative and void, as, substantially, an invasion of the appellate jurisdiction of this Court, under the principles decided in State ex rel. Larrieux vs. Judge, 28 An. 143; State ex rel. Frelot vs. Judge, 28 An. N. R.

It could furnish no shelter or excuse whatever to Ealgoust for violating the injunction against him.

Torres and DeBlanc took a rule to dissolve the last, as being inconsistent with the first, injunction, and to punish Ealgoust for contempt in violating the latter. Although it was admitted on the trial of the rule, that Ealgoust had built fences across the road and prevented any one from passing, the rule was discharged, virtually sanctioning his violation of the original injunction.

It is alleged and admitted, though the record is not before us, that subsequently Ealgoust sued'out an injunction, to the same effect as the one against Torres and DeBlanc, against thirty-one other persons in-eluding four of the present relators, preventing them from using the road.

Thereafter, the present relators, viz: G-ravois, Steil, Webre, DeBlanc, Torres, and Sévin, brought an injunction suit, containing substantially the same allegations as those presented in the original suit of Torres et al. vs. Ealgoust, joining as defendants, not only Ealgoust, but his brother and numerous other persons charged to be his relatives, servants and friends, and praying for an injunction restraining all of them from obstructing the road, or interfering with the petitioners in the use of it. The petition was presented to the judge at chambers in a different parish, who granted and endorsed on the petition his order for the injunction. After the counsel who presented the petition had left, with the order, on his return to the parish of St. James, Falgoust, through his attorney, presented to the judge a petition praying for the rescinding of the order just granted, and the judge immediately gave his order rescinding it and prohibiting the clerk and sheriff from issuing or serving any process thereunder.

It seems that, by superior speed, the rescinding order reached the clerk's office in St. James before the order for the inj unction, and the clerk refused to issue the latter. Thereupon, the plaintiffs in injunction applied to the judge for a suspensive appeal from his rescinding order, which was granted, and the injunction was then issued. Ealgoust then applied for an order allowing him to dissolve the injunction on bond, and, although the ease was precisely similar to that of Torres et al. vs. Ealgoust, in which we held that such an injunction could not be bonded, the judge granted the order.

Erom this order, the plaintiffs applied for a suspensive appeal, which the judge refused, assigning the following written reasons; “ I have refused the appeal prayed for in the within petition on the grounds that there are four injunctions pending in the same cause of action.”

Relators, in the present proceeding, apply (1st) for a mandamus to compel the judge to grant the suspensive appeal; (2d) for a writ of prohibition, restraining the judge and also Ealgoust from executing the order to bond and from violating or permitting others to violate the orders of injunction in the suit just referred to, and also in the former suit of Torres et al. vs. Ealgoust, and from enforcing the orders of injunction in the suits of Falgoust vs. Torres et al., and Ealgoust vs. Portal et al., until the orders of injunction in the two first mentioned cases shall have been finally and legally set aside by proper proceedings.

1st. As to the mandamus prayed for, the judge, in his answer, justifies his refusal of the appeal, on the ground that the order for injunction having been rescinded before action thereon by relators or the court, there was nothing on which the jurisdiction of the court could operate. The pendency of the injunction proceeding has been recognized by both the judge and Falgoust too clearly to permit the present defense to be entertained. The granting of the suspensive appeal from the dissolving order; the application of Ealgoust to bond the injunction; the granting of the order to bond; the reasons assigned by the judge for refusing the appeal from the latter order — all establish and concede the existence and operation of the injunction, which, under the suspensive appeal from the rescinding order, stands as if it had never been rescinded, and the position now taken by the judge appears to be an afterthought and cannot be sustained. It was clearly his duty to grant the appeal.

2d. As to the Prohibition.

The state into which this litigation has been permitted to drift, by the contradictory orders and injunctions granted by the inferior court, is a reproach to the administration of justice.

It is perfectly patent that the entire subject-matter of controversy in all the suits referred to herein, was fully and completely embraced in the original suit of Torres et al. vs. Falgoust (as is apparent from the judge’s own statement, that the four injunctions are in the same cause of action), and until the final disposition of the injunction granted therein, there was no possible excuse for granting any contradictory injunctions or orders in favor of defendant or any body else, touching the use of the same alleged public road; and none for declining to enforce, in its letter and spirit, the said injunction.

The first counter-injunction of Ealgoust, if it had been issued after the suspensive appeal was taken by Torres and DeBlanc from the order dissolving their injunction, would have been undeniably an invasion of our appellate jurisdiction, as decided in the two cases already quoted, The same result attached the moment the suspensive appeal was taken.

Nor did the injunction take new life, when, by our decree in that case, we reinstated the injunction. It was, therefore, inoperative, and .the court had no jurisdiction to enforce it. It should have been dissolved, on the motion of the counsel for Torres and DeBlanc, and Falgoust would have been punishable for contempt but for the apparent excuse of this counter-injunction, and should, at least, have been warned that his violation of the original injunction would not be tolerated.

His subsequent injunction proceeding against Portal and others, including some of relators, was equally improper and inconsistent with the injunction against him, so far as it interfered, with the use of the ' ■“ Manche ” road, and his injunction should have been denied. The injunction against him was based on the charge that the road was public, and in actual possession and use by the public, and the injunction against its obstruction, though invoked by Torres and DeBlanc alone, necessarily enured to the benefit of the whole public.

We regard the acts of Falgoust and of the judge in maintaining and enforcing the first injunction granted to him and invoking and granting the second injunction prayed for by him, as an indirect mode of disobeying our mandate rescinding the dissolution on bond of the original injunction against Falgoust and reinstating the same. That they are so regarded by both Falgoust and the j udge, is apparent from the fact that the former holds them up as authority for building fences across the road, in direct violation of the original injunction, and the judge sustains his pretension by maintaining his counter-injunctions and refusing to regard such action as a contempt; The judge, in thus practically nullifying and defeating the execution of our mandate, exceeds the bounds of his jurisdiction, and both he and the party subject themselves to the remedy of prohibition. It is manifest that the relators have no other adequate relief.

The record establishes that these contradictory and inconsistent judicial proceedings have produced the consequences which might naturally be expected to flow from them. Each party has felt that-his own injunction authorized him to violate that obtained by the other, and the result has been that one party obstructs the road, and the other forcibly removes the obstructions, in turn, bringing the law into contempt and threatening the peace of the community.

■ Such a state of affairs cannot be tolerated and must be summarily suppressed.

If we had doubt as to our jurisdiction under the rules ordinarily governing the administration of the writ of prohibition, we should feel justified, in such a case, in invoking the general supervisory power conferred by Article 90 of the Constitution.

We think relators are entitled to the entire relief asked by them, with the modification that so far as the prohibition restrains the enforcement of the injunctions in the suits of Falgoust vs. Torres et al. and of Falgoust vs. Portal et al., it applies only to their enforcement so far as they conflict with the opposing injunctions, and so far as they authorize interference with the free use of the “ Manche ” road by relators, during the pendency of their injunctions. As far as they may operate to prevent other unlawful trespasses on Falgoust’s property, they are not interfered with.

We wish it distinctly understood, that we intimate no opinion on-the merits of this acrimonious controversy. It may be that the relators have, as charged by Ealgoust, abused the equitable remedy of injunction, but that question can only be determined when the merits shall come before us. Had Ealgoust been the first to invoke the restraining action of the court, under the proper allegations of possession of the immovable in controversy, he would have received, at our hands, the same protection which we now extend to his adversaries.

The matter once put at proper issue, must abide the orderly course of judicial proceedings.

It is, therefore, ordered that the provisional writs of mandamus and prohibition herein issued be now made peremptory, at defendants’ costs.

Justice Poché recuses himself, having been consulted as counsel.

On Application for Rehearing.

The opinion of the Court was delivered by

Levy, J.

Under the light of the able briefs of counsel for respondent, Ealgoust, of which, by accident, we had not-the advantage before rendering our original opinion, we have carefully re-examined all the questions involved, without finding any reason for changing our decree.

We fail to perceive the hardships, which it is urged, our decree inflicts upon Ealgoust. *

The error under which his counsel rests, as it seems to us, is in treating the original suit and injunction of Torres and DeBlanc vs. Falgoust, as if it were an action to enforce in plaintiffs’ favor a mere private and personal servitude or right of way over the land of Ealgoust. Such is by no means the case. Torres and DeBlanc appeared simply as members of the public, asserting rights common to the whole public, and which could not exist in their favor without existing, at the same time, in favor of every other member of the public. The question involved was the status of the road; the decree prayed for was that it be judicially declared to be a public road; the relief sought by injunction was to maintain its status, as a public road, during the pendency of the litigation and to prevent its obstruction or interference with its use, as such, by Falgoust.

Without Anally committing ourselves on so delicate a question, we incline strongly to the opinion that a Anal decree in this case, in the absence at least of suggestions of fraud or collusion, would have been res judicata against all the world, under the same principles which give that effect to judgments settling the status of persons. Caballero vs. Maduel, 26 An. 113.

We do not see how, after a Anal judgment had been rendered declaring a road to be public, and forbidding defendant, perpetually, from obstructing it, another Anal judgment could be afterwards rendered declaring the same road to be private property and authorizing the same defendant to control it as owner. The same considerations apply to the injunctions pendente lite.

The suggestion that the effect of our decree is to violate Ealgoust’s constitutional rights by refusing him access to the courts, is without foundation. Ear from denying his right to enter the courts, we hold that, he is actually in the courts, and being there, must abide the orderly determination of his rights, without provoking conAicting remedies under the same issues.

The complaint that our decree leaves relators free to commit all kinds of outrages and trespasses on defendant’s property and deprives him of legal redress, is equally unfounded. We were careful to conAne the effect of our decree within proper limits, by interfering with defendant’s injunctions only so far as they authorized obstruction of the “ Manche ” road, during the pendency of the litigation, and leaving their operation untrammeled so far as they restrained unlawful trespasses on his property.

It is needless to recapitulate the principles on which we granted the relief sought, because they are fully set forth in the original opinion.. Nor do we And it necessary to consider nicely the technical objections urged to the mode of relief under our ordinary methods of procedure. If article 90 of the Constitution, conferring upon us a general supervisory jurisdiction, is ever to receive application, outside of general rules, the present is emphatically an occasion for its employment and exercise, in the interest of orderly judicial proceedings, of public convenience, and even of the public peace.

At the time when this litigation began, the road in controversy, whether actually public or private, was an open road. We cannot conceive how the terrible consequences intimated can Aow from simply maintaining that existing status until the right of the defendant to close it, distinctly at issue in this litigation, shall be therein determined.

Our former decree must remain undisturbed.

The rehearing is refused.

Justice Poohé recuses himself. ,