author: Lüdeling, C. J.

text:
    No. 4731.
    Horter, Peterson & Fenner vs. Merchants’ Mutual Insurance Company.
    Plaintiffs had a general policy with the defendant. It is urged that, because the vessel on which was plaintiffs’ merchandise was past due and the insurance was effected about half-past eight o’clock a. m.,and the indorsement was made by the book-keeper of the marine clerk of the company, and because tho president of the company wrote to the plaintiffs to notify them that the company declined the said risk, tho contract was no contract. This can not be assented to.
    The plaintiffs had a right to present themselves at the company’s office whenever it was open and to presume that the employees in said office were authorized to transact the business which they undertook to perform. Whether the company would take risks on vessels past due or not was a question within the discretion of the company. There is no proof that plaintiffs had knowledge that- any accident had befallen-the steamer when they applied to have tho insurance effected.
    APPEAL from tho Fifth, District Court, parish of Orleans. Cullom, J.

      G-ibson & Austin, for plaintiffs and appellants.

      A. <£• If". VoorJdes, for defendant and appellee.
   Lüdeling, C. J.

The plaintiffs sue defendant for ©745, the value of certain goods or merchandise insured by defendant, which were lost while on board the steamer “ Yictor,” from the perils insured against.

, The defendant alleges that there was no contract of insurance in regard to the said goods; that tho Yictor was past due and news of her loss had reached tho city when the plaintiffs sent their cleric to effect the insurance, before business hours, and in the absence of the officers having charge of the business department, who procured an employee of defendant to make the indorsement, etc.; that afterward the president notified plaintiffs that tho risk could not be taken.

The evidence shows that plaintiffs had a general policy with the defendant; that on Saturday evening plaintiffs received bills of lading for the goods on the Yictor, and early Monday morning their clerk went to the insurance office and presented the said policy at the marine clerk’s desk, and that a clerk or employee. of the company “ wrote up the in-dorsement in their policy-book;” that some time during that clay the president of the company wrote to notify the plaintiffs that the company declined the said risk, etc. It is urged that, because the vessel was past due, and the insurance was effected at about half-past eight o’clock a. m., and the indorsement was made by the book-keeper of the marine clerk of the company, the contract was no contract. To this we can not •assent. The plaintiffe had a right to present themselves at the company’s office whenever it was open,! and to presume that the employees in said office were authorized to transact the business which they undertook to perform. Whether the company would take risks on vessels past due or not, was a question within the discretion of the company. There is no proof that plaintiffs had knowledge that any accident had befallen the steamer when they applied to have the insurance effected.

It is therefore ordered that the judgment of the lower court be reversed, and that there be judgment in favor of the plaintiffs and against defendant for seven hundred and forty-five dollars, with legal interest from judicial demand, and costs.

Rehearing refused.


source: Caselaw Access Project

author:
Wi'lt. J. Ludelino, O. I.
      MoegaN, J., Howell, J.,

license: Public Domain

text:
    No. 3291.
    Wheeless & Pratt vs. F. M. Fisk.
    The discharge granted by the bankrupt court to the defendant will protect him from further responsibility to plaintiffs, but it can not avail to dismiss the appeal. The plaintiffs have the right to make the surety on the suspensive appeal bond liable, in case it should be determined that the judgment appealed from is correct.
    where a State court has obtained lawful jurisdiction of the parties and the subject - matter, that jurisdiction continues as long as the amount duo is in dispute or remains unascertained.
    The trial by jury in the ease was properly refused, it being the settled practice of the court below to refuse application for a jury after the ease has been once fixed and continued by preference. The ease having been set' down for trial, the application for a jury was too late.
    The defense based upon the allegation that the contract sued upon was of an aleatory character and therefore immoral is not well founded. The faetthat defendant only furnished a part of the price necessary to buy the gold ordered to be bought, or, as it is technically called, a margin, did not make the contract immoral. Like all other commercial ventures, it might result advantageously or not, according to the circumstances, but that did not make it unlawful.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      Breaux, Fenner A* Hall, for plaintiffs and appellees.

      M. M. Cohen and W. B. Lancaster, for defendant and appellant.

      Semmes & Mott, for defendant’s assignee in bankruptcy.
   Os Motion to Dismiss.

Wi'lt. J.

On the first of February, 1871, the defendant took a sus-pensive appeal from the judgment against him for §977 46. He was subsequently adjudged a bankrupt, and at the trial in this court offered his discharge in bar o£ the action against Mm, and prayed that the appeal herein be dismissed.

The discharge granted by the bankrupt court to the defendant will protect him from further responsibility to the plaintiffs, but it can not avail to dismiss the appeal. The plaintiffs have the right to make the surety on the suspensive appeal bond liable in case it should be determined that the judgment appealed from is correct. This court has authority to revise that judgment and settle the controversy, because, as we have just decided in the case of Switzer vs. Heinn, where a State court has obtained lawful jurisdiction of the parties and the subject matter, that jurisdiction continues as “long as the amount due is in dispute or remains unascertained.” Bump on Bankruptcy, sixth edition, pages 187,198,199, and authorities there cited. The assignee, however, has not been cited.

It is therefore ordered that this case be continued, in order to make the assignee of the bankrupt, E. M. Fisk, a party .to this appeal.

On the Merits.

Ludelino, O. I.

This is a suit for a balance due plaintiffs for cash advances, interest, and commissions on certain purchases and sales of gold made by them by order and for account of the defendant. The defense is that the contract was immoral, being an aleatory contract, and that the defendants had no right to sell the gold.

' Before the trial, defendant prayed for trial by jury, which was refused, we tMnk, properly. The case had been fixed for trial on the tenth of November; on that day the case was “ continued by preference.” The judge a quo states: “ It is the settled rule of practice in this court that a continuance of a cause by pre£erence means a continuance to a fixed day, viz.: to a day two weeks from the day from which it is continued. * * It is also a settled practice of this court to refuse applications for jury after a case has been once fixed and continued by preference.” The case having been set down for trial, the application for trial by jury was too late. C. P. 495.

The evidence sustains the plaintiffs’ demand.- The fact that defendant only furnished a part of the price necessary to buy the gold, or, as .it is technically called, a margin, did not make the contract immoral. The contract, like all commercial ventures, might result advantageously or not, according to circumstances, but that did not make it unlawful.

It is therefore ordered that the judgment be affirmed with costs.

MoegaN, J.,

dissenting. The case was fixed for trial. On the day fixed it was not reached, and was continued with preference. Before it was again called application was made for trial by jury.

The case was, in my opinion, in no sense fixed for trial when the application was made. It was only continued to be called with preference at the next calling. It would have been fixed when called, or not, as it might be ordered, or not, to be fixed. The case not having been fixed when the application for a jury was made, I think the application was improperly refused.

Howell, J.,

dissenting. I concur in the above dissenting opinion.

Behearing refused.


author: Wyly, J. Ludeling, C. J., TaliaeeReo, J.,

text:
    No. 5693.
    Succession of S. W. Thompson vs. Samuel B. Allison. Mrs. A. L. Pagaud, Garnishee.
    The succession of S. A¥. Thompson being the owner of a claim of Baker & Thompson against S. B. Allison, brought this suit against him and maclo Mrs. A. L. Pa-gaud party garnishee, propounding interrogatories as to the amount of her indebtedness to Allison, who is an absentee. To those interrogatories she answered that, under the circumstances, which she recited in said answer, she was not indebted to Allison in any sum whatever, but that, on the contrary, Allison was indebted to her.
    This answer was traversed, and the record of a suit of Baker & Thompson vs. Mrs. Pagaud was introduced to show that by her pleading Mrs. Pagaud judicially admitted that she owed Allison a certain specific sum.
    The garnishee, in answer to the’ interrogatories herein, admits that she owes Allison, under a certain contract with him to build a house for her, the said specific sum, but claims that Allison owes her by an express clause of the same contract a penalty which more than covers the said sum and which penalty was incurred in consequence of his not having finished the building according to the specifications and within the required delay.
    There is nothing in the ease referred to which estops the garnishee from asserting her claim to the stipulated ponalty. That claim is property. No one is presumed to give. The penalty exceeds the indebtedness of garnishee, against whom the evidence shows that plaintiff is not entitled'to judgment.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      Hornor & Benedict, for plaintiff and appellee.

      Singleton & Browne, for garnishee, appellant.
   Wyly, J.

In 1868 Baker & Thompson sued Mrs. A. L. Pagaud for $1059 54, the alleged value of lumber furnished by them to Samuel B. Allison, who was employed to build a certain dwelling-house for Mrs. Pagaud. She pleaded the general issue, and alleged that she employed Allison to build the house, on the terms stated in the answer; that he abandoned his contract and she was compelled to employ mechanics and laborers and buy materials to complete the dwelling-house as per contract, and that after finishing the same “ a balance of twelve hundred! dollars or thereabouts was due to contractor, a detailed and particular statement of which will be filed as soon as she possibly can.” The detailed account was filed, and it showed Mrs. Pagaud paid out $2778 87,. which, deducted from the contract price, §3700, leaves a balance of $921 13.

The court below decided in favor of plaintiff, but on appeal this court reversed the judgment, holding that Mrs. Pagaud was not bound personally, because it was the debt of Allison, the contractor; also, that plaintiff had no privilege on the property of Mrs. Pagaud, because the contract of the builder had not been recorded.

In June, 1874, the succession of S. W. Thompson, being the owner of this claim of Baker & Thompson against S. B. Allison, brought this suit against him and made Mrs. A. L. Pagaud party garnishee, propounding interrogatories as to the amount of her indebtedness to Allison, who is an absentee. To these interrogatories she answered, stating that “ in August, 1867, she made á contract with S. B. Allison to build her a dwelling-house on Dryades street, for which she was to pay §3700, as follows: $250 in cash when the frame was up ; $1600 in‘a note payable at twelve months from the date the roof was on and completed; $250 in cash when the building was completed; and $1600 in a note payable two years after the date of the 'completion of the building; that by said contract said builder agreed and bound himself to finish and complete said building by the first of November, 1867, and to forfeit and pay respondent ten dollars per day for each and everv day after the first of November, 1867, during which he shall fail to have the building completed as stipulated that your respondent paid said S. B. Allison two hundred and fifty dollars in cash when the frame was up, as per terms of the contract; that Allison failed to complete the building on the first of November, 1867, and never earned any other installment under said contract, and abam doned the work entirely on or about the ninth day of January, 1868, and respondent was obliged to employ workmen, buy materials, and finish the building; that respondent was obliged to pay out, in order to have the work finished according to contract, after said Allison had abandoned it, $2487 87, leaving a balance of $912 13 unexpended by respondent of the contract price, which would have been due and owing to said: Allison by respondent, if there had been no delay in the completion of the building; but that though your respondent.proceeded with all-reasonable diligence to complete the. building after said Allison aban-, doned it, she was amable to do so until about the first of March, 1868, making one hundred and twenty days delay from first November, 1867,. when said Allison agreed and bouiíd himself to finish the building, to-the first of March, 1868, when said building was completed, which, at ten dollars per day forfeit, made said Allison the debtor of your respondent in the sum of twelve hundred dollars forfeit; and said Allison was and is thus a debtor of respondent in the sum of $287 87, and your respondent is not indebted to said Allison in any sum whatever.”

This answer was traversed, and the record of the suit of Baker & Thompson vs. Mrs. A. L. Pagaud, heretofore referred to, was introduced to show that by her pleading Mrs. Pagaud judicially admitted that she owed Allison some twelve hundred dollars.

Wo think the garnishee is not concluded by the answer which she filed in the case referred-to, further than that she owed Allison the difference between the contract price and the amount expended on the building by her to complete it after the same had been abandoned; and this difference was shown to be $921 13 by the detailed bill which she filed, and which must be taken as part of her answer in the case referred to.

The garnishee, in answer to the interrogatories herein, admits that she owes Allison this sum, but claims that Allison owes her by an express clause of the contract a penalty of ten dollars for each day the completion of the building was delayed after the first of November, 1867, and that the aggregate amount of this penalty is twelve hundred dollars.

We find nothing in the case referred to that estops the garnishee from assertmg her claim for the penalty stipulated for the mere delay in executing the contract by Allison. That claim is property. No one is presumed to give. She owes Allison $921 13." Allison owes her the amount of the penalty stipulated for the delay in executing his contract; and this penalty exceeds in the aggregate the amount she owes Allison. At the time Allison abandoned the contract he was owing a penalty of ten dollars per day for sixty days, the contract being past due for that length of time. It required sixty days for Mrs. Pagaud to finish the building after it was abandoned by the contractor. Under the contract Mrs. Pagaud was entitled to a penalty of ten dollars per day for the whole period of the delay in executing the contract, the penalty being “ stipulated merely for the delay.” Revised Code, article 2125.

At the time the work was abandoned by Allison, Mrs. Pagaud was not owing him an installment, and it is not true the contract was abandoned because she refused to pay the contractor. She paid the first installment; the second was not due, because the roof of the building was not completed, and it was only then that he was entitled to her note for sixteen hundred dollars, payable at twelve months. Nor is it true that Mrs. Pagaud changed the plan of. the building after it was abandoned by Allison. On the contrary, Ross, the head carpenter, who was employed to complete the house after it was abandoned by Allison, testifies there was no change in the plan. . ' /

On the whole, we think the evidence shows that plaintiff is not entitled to judgment against the garnishee.

It is therefore ordered that the judgment herein be annulled, and it is decreed that the rule against the garnishee, Mrs. A. L. Pagaud, be discharged, and that plaintiff’s demand as to her be rejected with costs of both courts.

Ludeling, C. J.,

dissenting. The plaintiff sued defendant for the price of building materials used on the house of the garnishee, and propounded interrogatories to the garnishee as to her indebtedness to defendant. She answered that there was a balance due on the contract price of $912 13, but that in consequence of the failure of the defendant, Allison, to complete the work within the delay fixed he had forfeited this amount. The plaintiff traversed these answers, and proved that she had judicially admitted her indebtedness in a former suit. The evidence shows that this defense was an after-thought and without merit. I dissent.

TaliaeeReo, J.,

dissenting, i concur in the dissenting opinion.

Rehearing refused.


author: Howell, J.

text:
    No. 4898.
    New Orleans National Bank vs. John S. Wells et al.
    The position ol the defendants is that the bond which they signed ns principal and sureties was not given to the bank, because by its terms it is in favor of the president and directors to protect them, and not the bank, against the misconduct and unfaithfulness of the paying-teller. This is erroneous.
    The language of the bond makes it very clear that the paying teller was employed for and in behalf of the corporation, and not of the president and directors as individuals distinct from the corporation, and the bond was taken as a guarantee of his fidelity to the institution. These officers, in taking the bond, were acting for the hank and as the bank, and were exercising the poivers conferred by the act of Congress.
    The expressions therefore in the bond, “ shall savo the said president and directors of the New Orleans National Bank harmless from or oii account of any negligence or misconduct of him, the said John S. wells,” could apply only to their official capacity, acting for and representing the bank, and wore necessarily intended to be and was in law a bond or obligation in favor of the bank. To have taken it in favor of themselves individually would have been bad faith and without legal effect under the circumstances.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Merrick, Race & Foster, for plaintiff and appellant.

      Breaux, Fenner & Hall and Cotton & Levy, for defendants and appellees.
   Howell, J.

The New Orleans National Bank,- organized under the laws of the United States, and acting, as alleged, through its president and directors, sues the defendants, in solido, as principal and sureties, for twenty thousand dollars, and the principal for $6007 70 additional, as the .defalcation of said principal on the following bond:

“ Know all men by these presents that we, John S. Wells, Thomas Henderson, and James H. Mehaffey, all residing in New Orleans, in this State of Louisiana, are jointly and severally bound to the president and directors of the New Orleans National Bank in the sum of twenty thousand dollars, to be paid to the said president and directors, for which payment well and truly to be made we and each of us. hereby bind ourselves, our executors, and administrators firmly by these presents; dated in New Orleans on the twentieth day of February, in the year 1871. Whereas the above-bounden John S. Wells has been appointed paying teller, to continue in office during the will of the present or any future board of directors of said bank, now the condition of the above obligation is such that if the said JohnS. Wells shall well, truly, and faithfully do and perform all and singular the duties of said office of paying teller, and shall well and truly perform any and all other duties which may bo assigned him as one of the clerks of said bank, and shall render a faithful account of the moneys and effects committed to his charge or under his control, and generally shall save the said president and directors of the New Orleans National Bank harmless from or on account of any negligence or misconduct of him, the said John S. Wells, then this obligation to be void, or else to remain in full force and virtue.
“(Signed) JOHN S. WELLS,
THOMAS HENDERSON,
J. H. MEHAFFEY,”
“Witness — (Signed)
“A. Wheles,
“We L.' Bbowx, Jr.”

To this action the defendants filed the following exception:

“ Now into court come the defendants, and for peremptory exception founded in law, plead that the petition discloses no cause of action against the exceptors; that the bond sued on is not given in favor of the party plaintiff in this cause, and therefore she can not stand in judgment, as will be more fully shown by authority on the trial of this exception. Wherefore your exceptors pray this their exception in law be sustained and the suit be dismissed with costs, and for general relief, etc.”

The exception was maintained and plaintiff appealed.

As wo understand the position of the defendants, they insist that the bond was not given to the bank, because by its terms it is in favor of-the president and' directors, to protect' tlíém, and not'the'bank, against the misconduct and unfaithfulness of the paying teller. This we think erroneous. The language of the bond makes it very clear to us that the paying teller was employed for and in behalf of the corporation, and not the president and directors as individuals distinct from the corporation, and the bond was taken as a guarantee of his fidelity to the institution. He was to have charge of and account for the money and effects of the bank, as paying teller, and perform such other duties as might be assigned to him as one of the clerks of the bank, not the money and effects of the then or any future president and directors, or discharge duties personal to them. These officers in taking the bond were acting for the bank and as the bank, and were exercising the powers conferred by the act of Congress.

“ From the circumstance that a corporation is an intellectual being it follows that they can not personally transact all they have a right legally to do, as has been above observed ; wherefore it becomes necessary for every corporation to appoint some of their members to whom they may intrust the direction and care of their affairs, under the name of mayors, presidents, syndics, directors, or others, according to the statutes and qualities of such corporation.” R. C. C., art. 438.

“ These attorneys or officers, by contracting, bind the corporations to-which they belong in such things as do not exceed the limits of the administration which is intrusted to them; their act is supposed to be the act of the corporation.” Art. 439, second clause. •

The expression, therefore, in the' bond, “ shall save the said president and directors of the New Orleans National Bank harmless from or on account of any negligence or misconduct of him the said John S. Wells,” could apply only to their official capacity, acting for and representing the bank,.and was necessarily intended to be and was in law a bond or obligation in favor of the bank. To have taken it in favor of themselves individually would have been bad faith and without legal effect under the circumstances. The matter is so plain to us that we can not see how it can be considered that the contracting parties intended to make an obligation in favor of any other than the bank, a corporation acting through, its proper officers, and for its interest.

It is therefore ordered that the judgment appealed from bo reversed, the exceptions overruled, and the cause remanded to be proceeded in according to law. Costs of appeal to be paid by appellees.


author: Howell, J. Wylv, J.,

text:
    No. 6218.
    School Directors, etc., vs. R. K. Anderson, Administrator, et al.
    The plaintiffs have authority to prosecute this suit. They sue in behalf of the schools, and the inhabitants of the parish, and derive their authority from act No. 121 of 1861.
    This is an ordinary action to dissolve a sale and recover rents, and defendants are duly cited. The portion of the petition in the nature of a rule to show cause was not acted on.
    There is a cause of action fully set out. The demand to dissolve is one well known to our bar.
    This is not an action of rescission, and is not in the eases provided for as contemplated by the article 1912, R. C. C.
    The action for a dissolution, when a suit is noeessary to enforce the resolutory condition, is a putting in mora, as it may be met by paying the price, and the judge may even grant a delay for such a purpose.
    when the purchaser fails to comply with his engagements, the resolutory condition implied in all commutation contracts takes effect, and the seller has the right to sue for a dissolution of the sale.
    The defense that, because the notes given as evidence of the price are prescribed, the action to dissolve is also prescribed, can not be considered as well founded.
    The resolutory action is prescribed only by ten years, and the prescription of notes given as evidence of the price-does not affect that right of action, the right to dissolve not being an-accessory to but different from the right to enforce the payment of the price, having its origin in the failure to pay the price; and resting on the principle of justice that the vendee should not retain both the thing and the price.
    A restitution in integrum must be made. The vendor returns the portion of the price paid, with interest from the date of payment, and the vendee returns the 'thing with its revenues.
    The judge a quo properly allowed compensation for improvements to offset rents pro tanto, but erred in allowing interest on the rents, as it was not asked for. As considerable time has elapsed since the delay up to which the judge a quo allowed rent, this court will give the rent up to the date of delivery of the property.
    APPEAL from the Thirteenth Judicial District Court, parish of Carroll. Hough. J.

      E. H. Farrar, Montgomery & Deloney, for plaintiffs and appellees.

      Leonard & Kennedy, for defendants and appellants.
   On Motion to Dismiss.

Howell, J.

The plaintiffs sue to dissolve the sale of a sixteenth section to the ancestor of the defendants on the sixteenth of March, 1861,' on the ground of non-payment of the price, and to recover rent from date of sale to date of its restoration at the rate of §1250 per annum. The following exceptions were filed;'

First — That the plaintiffs are without authority to' prosecute this suit..

Second — That the suit of plaintiffs is a proceeding unknown to the law, being neither a rule nor an ordinary action.

Third — That plaintiffs’ petition .discloses no cause of action.

Fourth — That the court-has no-authority to revise 'its own judgment after the time at which it was rendered except by action of nullity or rescission.

Which were overruled.

The defense is:

First — That defendants have not been put in default for the payment of the price.

Second — Prescription of five and ten years; and

Third — A demand for improvements and the portion of the price paid in case of dissolution.

Judgment was rendered dissolving the sale, giving rent , at specified rates during different periods for the cultivated land, with interest thereon, and crediting the amount with the cash payments with interest, and the cost of clearing land, and making ditches and levees, leaving a balance of $3852 90 in favor of plaintiffs, and defendants appealed.

First exception. Plaintiffs sue in behalf of the schools and the inhabitants of the parish, and derive their authority from act No. 121 of 1861.

Second — -This is an ordinary action to dissolve a sale and recover rents, and defendants wez-e duly cited. The portion of the petition in the nature of a rule to show cause was not acted on.

Third — There is a cause of action fully set out. The demand to dissolve is one well known to our law.

Fourth — The demand to revise or review a former judgment of dismissal was abandoned.

The exceptions were properly overruled.

On the Merits.

I. As to default. Defendants base this defense on article 1912, R. 0. C., which is in these words: The effects of being put in default are not only that, in contracts to give, the thing, which is -the.objeet of the stipulation, is at the risk of the person in default, but in the cases hereinafter provided for it is a prerequisite to the recovery of damages, and of profits and fruits, or to the rescission of a contract.”

This is not an action of rescission, and is not in the cases provided for as contemplated by the article. The action for a dissolution, where a suit is necessary to enforce the resolutory condition, is a putting in mora., as it may be met by paying the price, and the judge may even grant a delay for such purpose. Arts. 2047, 2562. In George vs. Knox, 23 An. 355, we said: The note maturing on the first of March, 1858, was not paid. At that moment, the purchaser having failed to comply with his engagements, the resolutory condition implied in all commutative contracts took effect, and the seller had the right to sue for the dissolution of the sale.”

II. Prescription. It is urged that because the notes given as evidence of the price are prescribed the action to dissolve is also prescribed.

This identical question was presented in the case of Templeman vs. Pegars, 24 An. 537, and was decided adversely to the pretensions of defendants. The considerations and arguments urged in this case have failed to work a change in our views of the question. We adhere to the opinion that the resolutory action is prescribed by ten years, and that the prescription of the notes given as evidence of the price does not affect that right of action, the right to dissolve not being an accessory to but different from the right to enforce the payment of the price, having its origin in the failure to pay the price, and resting on the principle of justice that the vendee should not retain both the thing and the'price.

III. Revenues and improvements. A restitutio in integrum must be made. The vendor returns the portion of the price paid, with interest from the date of payment, and the vendee returns the thing with its revenues.

The evidence on these points is conflicting, and we are inclined to adopt the estimate of the district judge, who followed the rule first suggested, and properly allowed compensation for improvements to offset the rents pro tanto; but he erred in allowing interest on the rent, as it was not asked for. In this respect his decree will be amended. And as considerable time has elapsed since the date up to which he allowed rent, we will give the rent up to date of delivery of the property.

It is therefore ordered that the judgment appealed from be amended by striking therefrom the interest allowed on the annual rents, leaving the balance of §1016, instead of §3852 90, due plaintiffs. It is further ■ ordered that plaintiffs recover rent on sixty acres of land at eight dollars per acre from 1875, as calculated in the judgment, to date of delivery to plaintiffs; and that as thus amended the said judgment be affirmed, ap-pellees-to pay costs of appeal.

Wylv, J.,

dissenting. In this cáse the important question is, can the seller demand the dissolution of the sale for non-payment of the price after delaying the action till all the notes evidencing the price have been discharged by prescription. The precise question was presented to this court in the case of Templeman vs. Pegars, 24 An. 537. The majority of the court hold the affirmative of the proposition. I dissented. I adhere to the opinion delivered by me in that case.

• The resolution of the sale can not be demanded unless the buyer is in default for the price. Here there is no obligation on the buyer to pay the price. He has been legally discharged from that obligation. How can one be in default for non-payment of the price when he has been legally discharged from the performance of that duty ?

Default implies a dereliction of duty. To succeed in avoiding the sale, it seems to me, plaintiff must show that defendant is derelict in diseharg-ing the duty of buyer — that he is in default for non-payment of the price. Eevised Code, 2549, 2561.

I can not conceive that the defendant was in default when this suit was brought, because the obligation to pay the price was discharged in one of the legal modes of discharging obligations. An obligation discharged by prescription or novation or voluntary remission or compensation is as thoroughly extinct as if discharged by payment or the enforcement of the dissolving condition.

As the buyer, in this case, is discharged from his obligation arising from the sale by prescription, I fail to perceive that there is any cause of action against him; there remains no obligation to be discharged by the effect of the dissolving condition, unless we assume the absurdity that the law exacts more than one discharge of a legal obligation.

“The obligations of the buyer are:

“First — To pay the price of sale.

“ Second — To receive delivery of the thing, and to remove it, if it be an object which requires removal, and to indemnify the seller for what he has expended in preserving it for him.”

Eevised Code, 2549.

“ If the buyer does not pay the price, the seller may sue to dissolve the sale.” Eevised Code, 2561.

“ The prescription by which debts are released is a peremptory and perpetual bar to every species of action, real or personal, when the creditor has been silent for a certain time without urging his claim.” Ee-vised Code, 3459.

In the case at bar the thing having been delivered, the only obligation of the buyer was to pay the price; from this obligation he was legally released by the silence of the seller for a period exceeding five years. In my opinion, it is an utter absurdity to permit the enforcement of the dissolving condition, or any other remedy, to an obligation that has been legally discharged. There can be no remedy to an obligation which has ceased to exist.

The buyer is under no legal obligation to the seller; the law has released him; yet the court, in effect, says, because you (the buyer) are in default for the price, because your obligation exists and has not been satisfied, you are required and condemned to restore the thing to the seller; you are discharged, and you are not discharged; the law has released you fully from your obligation to the seller, yet you are bound to him; you must execute the contract, notwithstanding the law has released you from so doing. The logic of the argument surpasses my comprehension.

I therefore dissent in this case.

Behearing refused.


author: Ludeling, C. J. Morgan, J.

text:
    No. 5475.
    Succession of Francois Bougére.
    It not appearing that the heirs who have appealed have acquiesced in any manner in the judgment appealed from, unless the mere fact of their not having applied for a suspensive appeal is acquiescence, which it is not, the application they made within a year was in time, for within that time they had a right to appeal.
    As to those appellants who are married women, they appear through their attorney in fact, who was duly authorized by them, and they were authorized by their husbands to grant the power of attorney. The mandate gives to the mandatary power to appear in all courts of justice for the purpose of defending their interests. They are therefore properly before the court.
    Killeul is not entitled to any thing as legatee under the testator’s will. The testator beaueathed a blank sum to Pilleul. This was leaving him no certain sum of money, not even any money at all. He may have intended to do so, but what his intentions were it is impossible to tell. If he intended to bequeath a sum, what was it ? How can it be ascertained ? An arbitrary power in such matter is disclaimed by the court. The law gives no authority to fix the amount of a legacy which has not been determined by the testator. All that can be said in regard to Killeul is that the testator has changed his mind, and that, at all events, ho made no legacy.
    It has been held that a discharge under the bankrupt law does not release one from the obligation to collate, upon the same principle the heir can not plead against collation that the debt which he owes is prescribed.
    If the parties wore claiming simply as heirs of the deceased, being collaterals, they could not be forced to collate. But they do not claim as heirs. They claim under the will. They must therefore take according to the terms of the will.
    Now, the will próvidos that the donations which the testator may have made to his heirs, as well as the debts and other advances which they owe him, shall be brought into his succession, in order that the three branches of his heirs may be placed upon a footing of perfect equality.
    Alphonse, now deceased, was one of the three branches. In order that the provisions of the will should bo carried out, it was necessary that he should collato what he owed. His children can have no greater rights or interest in the succession of which he formed a branch than he had. He would have been obliged to collate. So are they.
    APPEAL from the Parish Court, parish of St. Charles. Durapau, J.

      E. Bermudez & C. JP. Claiborne, A. J. Villero, and Ernest Morel, for appellants.

      E. Eilleul, Alfred Phillips & Brieugne, for appellees.
   On Motion to Dismiss.

Ludeling, C. J.

The appellee moves to dismiss the appeals in this ease, on the grounds following, to wit:

First — That the appellants have voluntarily executed the judgment appealed from, and have voluntarily acquiesced in and ratified its execution, as .per affidavit and exhibits annexed to and made part of this motion.

Second — That all the parties, contradictorily with whom the judgment ■was rendered, had not been made parties to the appeal, and have not 'been cited.

Third — That the claim of Aehille Bougere, Marguerite Bougere, and Elie Bougere, has been settled since the appeal was granted, as per affidavit and exhibits hereunto annexed.

Fourth — That the appeal was granted to Achille Bougere, Marguerite Bougere, and Elie Bougere upon the condition that they should furnish bond and security in the sum of two hundred and fifty dollars; that they never furnished such bond, but settled their claim and acquiesced in the judgment.

Fifth — That the appeal taken by Pelagie Mariette, wife of Cerisior, Zénide Gauthier, wife of H. Jordan, and Josephine Desportes, wife of Pierre Peirault, who all reside in France, should bo dismissed, because their husbands are not in court, have not joined in said appeals, and there is no evidence of record indicating that said appellants are acting with the assistance of their said husbands or of the court.

Sixth — That the appeal of Mrs. Julie Boe should bo dismissed, because she can not appeal from a judgment of the honorable the Supreme Court of the State already rendered in this suit heretofore, by which it was finally decided that she is without interest or capacity to stand in judgment in this succession.

The executor rendered an account, which was homologated. In it he had made a distribution or partition of the property among the legatees, after paying creditors. Some time after this judgment Élio, Marguerite, and Achille Bougere obtained an order for a suspensive appeal, but they subsequently received from the executor their shares or amounts adjudged to them by the judgment; others of the heirs or legatees also received their shares under the judgment. The heirs were all parties to the judgment, and they know that the executor had boon ordered to pay the creditors and legatees, and after the judgment had been to a great extent executed they should not bo allowed to appeal from a judgment which they have permitted to be executed. In the succession of Egana this court said: “ It can not be controverted that, under the laws and jurisprudence of this State, the party who voluntarily executes, either partially or in toto, a judgment rendered for or against him, or who voluntarily acquiesces in or ratifies, either partially or in loto, the execution of that judgment, is not permitted to appeal from it.” 18 An. 62, and. cases there cited.

This judgment is an entirety, and it has been acquiesced in and partially executed.

As to Mrs. Boé, this court decided in a ease reported in 26 An. p. 127, that she had no standing in court. The proceeding in the Second District Court of New Orleans, in which she was recognized as presumptive heir, was unauthorized, as the person, whose heir she claimed to be, never resided in this State and never owned any property in it.

It is therefore ordered that the appeal be dismissed with costs.

Mr. Justice Wyly concurs in this opinion as relates to the appeal oí Mrs. Boé, and dissents as to the rest.

MORGAN, J. I concur with reference to the acquiescence, but I dissent as to the decree as it affects Mrs. Boé, and will file my reasons hereafter.

On the Merits.

Morgan, J.

When this case was first submitted, we dismissed the appeal as regards Mrs. Boé on the ground that she had no standing in court, and because the proceeding in.the Second District Court of New Orleans, by which slio was recognized as presumptive heir of her father was unauthorized, as the person, whose heir she claims to be, never resided in the State and never owned any property in it.

As to all the other opponents, we dismissed their appeals because wo found that they had either acquiesced in the judgment, or had not appealed suspensively therefrom. No suspensive appeal was asked for by any of the parties in interest. But Pelagie Mariette, Desiré Desportes, L. M. Louise Desportes, Josephine D. Peirault, Rosalie Mariette, Jacque Mariette, Zónide Gauthier, and Yictorine Gauthier, all descendants of the two branches of heirs, Jeanne Bougére and Marguerite Bougére, appealed within ten days after the judgment was rendered, and the heirs of Alphonse Bougére appealed within a year after the judgment was rendered. These heirs do not appear to have acquiesced in the judgment in any manner, unless the mere fact of their not having applied for a sus-pensive appeal is an acquiescence. We are of opinion that it is not. The first named of these parties applied for and were granted an appeal within the time required by law for a suspensive appeal, and they all applied for and were granted an appeal within a year after the judgment was rendered. We think that the application having been made within a year, it was in time, for within that time they had the right to appeal. It was these parties who applied for a rehearing, and it was in their favor that a rehearing was granted. We will consider the case only as it regards their rights. As to them it is moved to dismiss the appeal on two grounds:

First — Because all the parties contradictorily with whom the judgment was rendered were not made parties to the appeal and have not been cited; and,

Second — Because some of the appellants are married women, and their appeals were taken without the authorization of their husbands.

As regards the representatives of Jeanne Bougére and Marguerite Bougére, all the parties in interest opposed to them, except the executor,accepted service of the petition of appeal. The executor does not alleges that he is not properly before the court. All he pleads in this connection is acquiescence. We have decided that there was no acquiescence, consequently there is no ground to dismiss their appeal.

As to those appellants who are married women, they appear through their attorney in fact, Lewis Breton, who was duly authorized by them, and who were authorized by their husbands to grant the power of attorney. The mandate gives to the mandatory the power to appear in all courts of justice for the purpose of defending their interests. They are, therefore, properly before the court.

The motion to dismiss the appeal of the parties who are now before us is denied.

' Frangois Bougere died on the twenty-fourth of August, 1873. He had no forced heirs. He left a will in the olographic form, which was duly proved and admitted to probate. Ho appointed E. Filleul executor, who was confirmed as such.

The will is dated thirtieth April, 1866. It is written in the French language. We translate it as follows:

“My name is Frangois Bougere; I was born at Anges, Franco; lam sixty-eight years old; my father and mother are long since dead; I have never been married.
“ I give and bequeath unto Mr. Edward Filleul, lawyer, the sum of -. I appoint Mr. Edward Filleul, lawyer, my testamentary executor, and I desire that he take the commission which the law allows, over and above the legacy which I make him.
“I institute as my heirs and universal legatees, each for one-third:
“ First — My sister, Widow Mariette, living in Anges, France.
-“ Second — My brother, Réné Bougere, living at Brissac, France.
■“ Third — My sister, Widow Gauthier, living at Anges, France.
■“My will is that my succession shall be divided only among the heirs named in this testament, and that all those who are not named in it shall be excluded.
“ I wish my succession to be divided between these three branches of heirs, according to the rules established by the Civil Code of Louisiana, which regulate intestate successions, so that each of these three branches of heirs have an equal part.
“The donations which I have made to my heirs, as well as the debts and advances which they owe me, shall be brought back in my succession, adding thereto the interest on the debts and advances due, or the estimated value of the donations, so that my executor may estimate what each branch has received during my life, and what it should receive after my death, in order that the three branches of heirs may be placed upon a footing of perfect equality.”

After administering upon the'estate,-the executor filed his account. In this account he seeks to distribute the succession, and he divides it into four equal parts; one of these parts he claims. As regards his own pretensions, he is opposed by all the instituted heirs, and they appeal from the judgment which decided in his favor.

The first question, then, to be determined is whether Filleul is entitled to any thing under the will as legatee. We do not see how we can affirm the judgment of the parish court without making, in part, at least, a will for Frangois Bougére. He certainly left Filleul no sum of money. He may have intended to do, but what his intentions were we can not tell. If he intended to leave him any thing, what was the sum ? How are we to ascertain it ? Can we fix it, as he could have done, arbitrarily? Then we could dispose of his entire estate and leave his instituted heirs nothing. Or we could cut them off with a shilling, or give them what our caprice would dictate. We disclaim any such power. What we are called upon here is not to interpret the meanmg of a particular clause in a will, but we are asked to fix the amount of a legacy which has not been fixed by the testator. For this, we think, the law gives no warrant. But the executor contends that inasmuch as the testator declared that he wished his instituted heirs to take in conformity with the rules laid down in the Civil Code with regard to intestate successions; and inasmuch as he died leaving four heirs, one of whom he had excluded, therefore he, Filleul, must be considered as standing in the place of the excluded heir, and take the share he would have been entitled to in the absence of a will. This would be dividing the estate equally between the instituted heirs and the legatee. There is nothing in the will which would justify such an interpretation. If the testator had intended that his succession should have been thus divided, he would have said so. There is nothing to show that he intended such a division, for he speaks of Filleul as a legatee, institutes the parties named as his exclusive heirs, and provides that, after paying the debts and legacies, his estate ■shall be divided equally among the heirs named. All that can be said as regards Filleul is, that the testator may have intended to make him a legatee, but that he changed his mind. At all events, he did not.

We come now to the opposition of the minor heirs of Alphonse Bou-gére. His children inherit from him. In his turn he inherits from his father. His father is one of the instituted heirs of Frangois Bougére.

The will, as we have seen, provides that the donations which the testator had made to his heirs, as well as the debts and advances which they owe him, are to be brought back into his succession, so that his executor may know what each branch had received and what it should receive after his death, in order that the three branches of heirs may be placed upon a footing of perfect equality.

No debt was due by Réné Bougére, the instituted heir, to Frangois Bougére, testator. Frangote held the notes of Alphonse. Alphonse is dead. His children say the debt which their father owed is prescribed; that Frangote could not have collected it, and, therefore, it can not be collated. That Alphonse, if alive, could have been forced to collate, is, we think, clear. It has been held that a discharge under the bankrupt law does not release an heir from the obligation to collate. Succession of Cucullu, 9 An. 96. Upon the same principle the heir can not plead against collation that the debt which he owes is prescribed.

It is, however, urged that the obligation of collating' is confined to children, or descendants succeeding to their fathers and mothers, or other descendants, whether ab intestato, or by virtue of a testament. This is the textual provision of the Code, article 1235. If, then, the parties before us were claiming simply as heirs of the deceased, being collaterals, they could not be forced to collate. But they do not claim as heirs. They claim under the will. They must, therefore, take according to the terms of the will. Now the will provides that the donations which the testator may have made to his heirs, as well as the debts and advances which they owe him, shall be brought into his succession, in order that the three branches of his heirs may be placed upon a footing of perfect equality. Alphonse was one of these branches. In order that the provisions of the will should be carried out, it was necessary that he should collate what he owed. His children can have no greater rights or interest in the succession of which he formed a branch than he had. He would have been obliged to collate. So are they.

It is therefore ordered, adjudged, and decreed that the judgment of the parish court,[as regareis the opposition of Pélagie Mariette, Desiré Des-portes, L. M. Louise Desportes, Josephine D. Péirault, Rosalie Mariette, Jacquo Mariette," Zénide Gauthier, and Yictorine Gauthier, be reversed, in so far as it gives to E. Filloul any portion of the succession of Fran-gote Bougére, and that it be affirmed as to the balance of their opposition. It is further ordered, adjudged, and decreed that the judgment in so far as it relates to the opposition of the heirs of Alphonse Bougére bo affirmed. And as thus amended it is ordered that the judgment of the parish court be affirmed, the súccession to pay the costs.


author: Mobgan, J. Wyly, J.,

text:
    No. 5980.
    Jules Lapene & L. F. Jacks vs. D. C. McCan & Son et al.
    Notice oí judgment must be given to the defendant in execution three days provious to the advertisement. This notice has not been given to Lapene, one of the plaintiffs in injunction. It has been held that the non-observance of this requisite of the law vitiates the sale of property under execution. If the sale for the want of this formality is to be declared void, it follows that tho sale can bo -prevented for the same reason.
    It is contended for defendants that judicial process can not be enjoined on a mere irregularity in the mode of its execution. It is not a mere irregularity which is complained of here. Plaintiff sets up what has been decided to bo an absolute nullity.
    Proper notice of seizure was given to Jacks, but notice to Jacks did not fulfill tho requirements of the law, as to notice to Lapene. Service of notice of seizure on Lapene’s partner is no notice to Lapene. The partnership existing between them was an ordinary partnership. Jacks was not Lapene’s agent.
    That the defendants in this ease considered Lapone entitled to notice is shown by the fact that they caused him to be notified. The only difficulty is, that the notice was not given as required by law.
    Because the judgment against Lapene & Jacks was in solido, it does not follow that notice to Jacks was notice to Lapene. He might have owned other property besides the property seized. If so, he had the unquestionable 7-ight to point out such property, to satisfy the judgment which was about to be executed against him, or he might have been willing to pay it.
    It does not matter that the property soized was partnership property. Lapene’s interest in it was to be sold. His property was to be taken from him, and notice to him of that fact was prerequisite.
    Animals and utensils attached to a plantation and manufactories, and such articles as can not be easily removed, must be sold on the spot where they were taken, on the day and hour appointed by the sheriff.
    Mares used exclusively under the saddle and in harness, and not in the cultivation of the plantation, can not be considered as part of the realty.
    The evidence is satisfactory that the boilers could be removed without damage to the sugar-house, and therefore it was not necessary that the whole property should be sold under tho separate appraisement of the boilers.
    As to the question of the vendor’s privilege on the boilers, it is res judicata, it being settled by tho judgment which is now stayod by this injunction and which decreed the privilege. The question can not be re-opened.
    APPEAL from the Eiftb. District Court, parish of Orleans. Cullom, J.

      Sambola & Ducros, for plaintiffs and appellants.

      JS. Howard Me Caleb, for defendants and appellees.
   Mobgan, J.

Lapene & Jacks own a plantation in the parish of Plaque-mines. Lapene resides in New Orleans, Jacks resides on the plantation. They contracted with D. 0. MoOan & Son to furnish them with four boilers, for the use of their plantation, and gave their.notes in payment therefor. The notes were not paid at maturity. McOan & Son sued' ©n. them and obtained judgment against the makers, in solido, iviih privilege on the boilers.

Under this judgment they issued execution and seized j:iie boilers and two mares, which were advertised to be sold on the plantation. Lapene & Jacks enjoin the sale on the grounds:

First — Because the property seized was advertised for sale before any notice of seizure was served on Lapene.

Second — Because the sale is advertised to take place on the plantation instead of at the court-house.

Third — Because the mares are worked on, and attached to, the plantation, and can not be seized and sold apart therefrom, they forming a part thereof.

Fourth — That the boilers in question are attached with brick and cement to the sugar-house: that said adhesion is the result of work performed by, or with the consent of, the parties seizing; that the boilers form part of the realty, and that whatever privilege may exist thereon, if any, can be exercised only by seizing the whole property, and appraising separately the property on the one hand and the boilers on the other prior to the sale thereof.

As regards Lapene, we think the injunction properly issued. Notice of seizure must be given to the defendant in execution three days previous to-the advertisement. C. P. 654, 655. This notice was not given to Lapene. It has been held that the non-observance of this requisite of the law vitiates the sale of property under execution. Grant vs. Walden, 6 L. 630. If the sale, for the want of this formality is to be declared void, it follows that the sale can be prevented for the same reason.

Counsel for defendants has referred us to authority sustaining the position that judicial process can not be enjoined on a mere irregularity in the mode of its execution. It is not a mere irregularity which is complained of here. Plaintiff sets up what has been decided to be an absolute nullity. Proper notice of seizure was given to Jacks, and plaintiffs contend that notice to Jacks fulfilled the requirements of the law as to notice to Lapene. We do not agree with him. Service of notice of seizure on Lapene’s partner, Jacks, was no notice to Lapene. The partnership existing between them was an ordinary partnership. Jacks was not Lapene’s agent. Defendants rely upon the case of Walker vs. Allen, 19 La. 311. But in that case the defendant was the agent of his co-defendant, and held his power of attorney, which authorized him to act as his agent at the sale of their common property, which was to be sold under execution to pay their common debt. That the defendants in this case considered Lapene entitled to notice is shown by the fact that they caused him to be notified. The only difficulty is that the notice was not given as required by law.

Neither do we think that because the judgment against Lapene & Jacks was in Holido, notice to Jacks was notice to Lapene, as is contended. Lapene, might have owned other property besides the property seized. If so, he had thp unquestionable right to point out such property to satisfy the judgment which was about to.bq executed, against him. He might have paid or been willing to pay the judgment. Nothing of this, was possible to him, unless he paid voluntarily, except after notice of seizure. Neither does it matter that the property seized was partnership property. Lapene’s interest in it was tobe sold. His property was to be taken from him, and notice to him of that fact was a prerequisite-.

The case of Jacks is different. He was properly notified of the seizure. As to him, his defense is comprised in the second, third, and fourth grounds which have been quoted above. Animals and utensils attached to a plantation and manufactories, and such articles as can not be easily removed, must be sold on the spot where they were taken, on the day and hour appointed for this purpose by the sheriff. C. P., 666. This objection is answered by the article referred to.

As to the mares, we do not find that they were used in such a manner as to make them form, in contemplation of law, a part of the realty. They were used exclusively under the saddle and in harness, and not in the cultivation of the plantation.

As regards the boilers, it is contended in argument- that they are attached to the sugar-house by bricks and mortar, and that they are thereby exempt from the privilege which originally existed in favor of the vendor. But this question was settled by the judgment which is now stayed by this injunction. That 'judgment decreed the privilege, and that decree has now the authority of the thing adjudged. But that decree did not provide how the .judgment should be executed. By the pleadings the question of privilege is not raised, as will be seen by a perusal of the fourth ground upon which the injunction was applied for. The question for us to determine is not whether any privilege exists, but whether the boilers can be sold separately from the building to which they are attached, whether the whole property' should not have been seized, appraising the property and the boilers separate ? The evidence satisfies us that the boilers can be removed without damage to the sugar-house, and, therefore, that it was not necessary that the whole property should be sold under a separate appraisement of the boilers.

It is therefore ordered, adjudged, and decreed that the judgment of the district court as regards Lapene be avoided, annulled, and reversed, and that the injunction as to him be reinstated and made perpetual. As regards the defendant, Jadfcs, it is ordered that the judgment of the district court be affirmed with costs.

Wyly, J.,

concurring. Defendants, D. 0. MeOan & Soji, obtain judgment against plaintiffs for $3507 38, “with vendor’s privilege on four boilers furnished to, and now situated on, the Monse.cour’s plantation in the parish of Plaquemines.” Plaintiffs were planting partners on said plantation. Execution issued, and the sheriff seized the four boilers and also two mares on said plantation and advertised them for sale on the third of April. Plaintiffs enjoined the sale on the following grounds:

First — Because the property was advertised for sale before notice of seizure was served on Jules Lapene, one of the partners.

Second — Because the sale was advertised to take place on the Monse-cour’s plantation, instead of at the court-house.

Third — Because the two mares are attached to the plantation, used in its cultivation, and can not be sold separately.

Fourth — Because the boilers are attached by bricks and cement to the sugar-house, they form a part thereof, and can not be sold separately from the plantation.

As plaintiffs are ordinary partners, notice of seizure should be given •to each in order to make a valid sale of his share of the property seized. Lapene was not notified of the seizure till the twentieth or twenty-second of March, and the sale was advertised for the third day of April. He was entitled to three days notice of seizure and ten days advertisement, the property being movable. The delay -allowed was not sufficient. The objection that Lapene was not properly made a' party to the sale must be maintained. But this is no cause for his partner, J. L. Jacks, to complain and to sue out an injunction. The objection that the sale was to occur on the Monsecour plantation, where the property was seized, is not well founded. The four boilers are articles that could not easily bo moved, and the sheriff was not required to divide the sale. C. P. 6G6. As to the third objection; I will remark the evidence shows that the two mares were not used to cultivate the plantation; they were riding-horses and could be sold separately from the plantation.

I agree with the district judge that defendants, having judgment with vendor’s privilege on the four boilers, could enforce it by seizing and selling the said boilers separately from the plantation. When they were set up at the sugar-house the vendor’s privilege was upon them, and I know of no law whereby the purchasers could destroy the privilege by using the property for the purpose it was adapted. I can not consent that a vendor’s privilege on a movable can be lost simply because the purchaser may use it on his plantation. If such were the case, the vend- or’s privilege would furnish but little security in an agricultural district. The law has not declared that the use of a movable by a purchaser shall'destroy the vendor’s privilege. “Privileges become extinct:

“First — By the extinction of the thing subject to the privilege.
“Second — By the creditor acquiring the thing subject to it.
“ Third — By the extinction of the debt which gave birth to it.
“ Fourth — By prescription.”

Revised Code, 3277.

As defendants have a privilege upon the boilers as separate things, I see no reason why they may not sell them separately from the plantation. If they remain separate things, so that a privilege may rest upon them, they remain separate for the enforcement of such privilege. They can not be things, and not things.

If they are movables, the vendor’s privilege is upon them; if they are part of the plantation, an immovable, there can be no vendor’s privilege, because defendants did not sell the plantation. Defendants had a privilege upon them as movables when they sold them to plaintiffs, and that privilege has been recognized in the judgment sought to be executed. And that judgment can not be questioned now, nor can the inquiry be raised as to the existence of the privilege on these boilers, because defendants have set up the plea of res juáicata. Defendants have the right to enforce their privilege by selling the things subject thereto. The plantation is not subject to the vendor’s privilege. The boilers, as separate things, are, and they may be, sold to satisfy the judgment of defendants.

For the reasons stated, I therefore concur in the decree in this case.

Howell, J., dissents from the majority of the court on the question of notice to Lapene, one of the partners. I think notice to Jacks, at the domicile of the firm, was sufficient.


author: Morgan-, J. Wyly, J.,

text:
    No. 6259.
    Jean Dutrey vs. Bertrand Laguens.
    After the rendition of a judgment in favor of the plaintiff against defendant, the wife of said defendant died leaving minor children, of whom he became tho tutor. Execution issued on the judgment, and plaintiff took a rule to show cause why certain mortgages should not be erased from the property seized. The defendant’s exception to the jurisdiction of the Fifth District Court, upon the ground that it is a succession matter, and must be determined by the Second District Court, can not be maintained. It is not strictly a succession matter, but simply a rule taken in a court out of which an execution issued, to show cause why certain mortgages which stood in the way of the judgment should not he erased. The Fifth District Court, which rendered the judgment, was the proper tribunal to pass upon all subjects relating to the execution thereof.
    The objection that this proceeding could not be by rule, but should be by direct action, is not well founded.
    APPEAL from the Fifth District Court, parish of Orleans. Gullom, J.

      James Timomj, for plaintiff and appellee.

      J. Meunier, for defendant and appellant.
   Morgan-, J.

Plaintiff obtained judgment against the defendant. After the rendition of this judgment the wife of the defendant died, leaving

minor children. The defendant became by law their tutor. Execution issued on the judgment, and property was seized. It appears that the recorder of mortgages certifies that there exists on the property seized several mortgages, among them one in favor of the minors.

Plaintiff took a rule on the mortgagees to show cause why the mortgages should not bo erased.

The defendant, tutor, excepts to the jurisdiction of the Fifth District Court, upon the ground that it is a succession matter, and must be determined by the Second District Court. We think it was not, strictly speaking, a succession matter. It is simply a rule taken in a court out of which an execution issued, to show cause why certain mortgages which stood in the way of the judgment should not be erased. The Fifth District Court, which rendered the judgment, was the proper tribunal to-pass upon all subjects relating to the execution thereof.

The second objection, is that the proceeding can not be by rule, but should be by direct action. We think the proceeding by rule was proper..

As regards the mortgages in fav.or of A. Bochereau & Co. and'Jean Taphil, the evidence shows that they have been discharged by payment of the debts which they were given to secure.

As regards the minors’ mortgage, the record shows that by the marriage contract between their mother and father the defendant recognized that their mother had brought into marriage furniture amounting to one hundred dollars, and other property, consisting of notes, amounting to $2021, all of which was taken possession of by the defendant, and that the marriage contract was duly recorded on the sixth of October, 1860. The mortgage for those two amounts, therefore, rests in favor of the minors on the defendant’s property.

The judgment appealed from, in so far as it regards A. Bochereau & Co. and Jean Taphil, is correct. As regards the minors’ mortgage it is wrong.

It is therefore ordered that the judgment be affirmed as to Bochereau & Co. and Jean Taphil, and that as regards the minors’ mortgage it be avoided, annulled, and reversed, defendant to pay the costs in the district court; those of the appeal to be paid by the plaintiff.

Wyly, J.,

dissenting. Plaintiff, a judgment creditor of defendant, seized certain property belonging to him and took a rule in the Fifth District Court to cause the erasure of two general mortgages in favor of his minor children, whom he represents as natural tutor:

First — The one resulting from the marriage contract with his deceased wife.

Second — The one resulting from the tutorship of his minor children.

Defendant in liis capacity as tutor, excepted to the proceeding—

First — That the court was without jurisdiction rañone personal in regard to the validity or existence of the mortgages owned by his minor children.

Second — The proceeding by rule is unwarrantable; plaintiff must bring a direct action.

Third — In a direct action defendant would establish the reality of th® rights claimed for his children and the validity of their mortgages.

The court maintained the rule and ordered the mortgages to be canceled. Thereupon defendant appealed.

I think the court erred. The Fifth District Court was without jurisdiction to determine the rights of the minors represented by plaintiff as natural tutor, or to inquire into the validity of the mortgages belonging to them. The Second District Court has exclusive jurisdiction of “ all matters relative to minors.” Revised Statutes, section 2011.

It is true, a judgment creditor of the community need not pursue his rights in the succession of a wife, but may seize, under execution, community property to satisfy his judgment. Still, if he desires the mortgages of minors bearing on that property erased, ho must apply to the court having jurisdiction of minors or matters relating to them.

I therefore dissent in this case.

Rehearing refused.


author: Wyly, J.

text:
    No. 4886.
    Succession of Richard Condon.
    Appellant, wlio lias bought at public auction a lot of ground belonging to the succession of Richard Condon, having refused to comply with his bid after du® demand to accept the deed and comply with the terms of the sale, the natural tutrix took this rule requiring him to take the title and pay the price, or, in default thereof, praying that the property be sold at his risk and. expense. The court below made the rule absolute, and the purchaser, McMahon, has appealed.
    The judge a quo did not err. The only interest the appellant has is to reauire a good title. The property was sold to pay debts by order of a court having jurisdiction of the succession. It is well settled that under such circumstances the purchaser gets a good title, all incumbrances being transferred from the thing sold to the proceeds, which were under control of the court.
    from tlie Second District Court, parish of Orleans. Pissot, J.

      McGioin <£• Nixon, for plaintiff on rule and appellee.

      Felloios & Mills, for defendant and appellant.
   Wyly, J.

This succession was administered by the surviving widow as natural tutrix.

In June, 1873, a sale was made by order of court, on the advice of a family meeting, of a lot of ground and improvements on Magazine street belonging to said succession, and Thomas McMahon became the purchaser for ninety-five hundred dollars. Having refused to comply with his bid after due demand to accept the deed and comply with the terms of sale, the natural tutrix took this rule requiring him to take the title and pay the price, or, in default, that the property be sold at his risk and expense. The court made the rule absolute, and McMahon has appealed.

The only interest appellant has is to require a good title. The property was sold to pay debts by order of a court having jurisdiction of the succession. It is well settled that under such circumstances the purchaser gets a good title, all incumbrances being transferred from the thing sold to the proceeds which are under the control of the court.

Appellant has raised objections and discussed matters in-which he has no interest. Out of abundance of caution the surviving widow and major heirs, who have only a residuary interest, have joined in the deed. Appellant is wholly without excuse for failing to comply with his bid.

It is therefore ordered that the judgment herein making the rule absolute be affirmed with costs.

Rehearing refused.


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    No. 6004.
    City of New Orleans vs. Lafayette Insurance Company.
    Tlie sole ground upon which the Lafayette Insurance Company, defendant and appellant, seeks a reversal of the judgment of the court a qua is, that it paid one thousand dollars for the year 1875 to the State, and that by the statutes of 1871, 1872, and 1871 it is provided that the payment of this license by any insurance company should be deemed a full acquittance for all taxes imposed by State, parish, or municipal authority for the year for which said one thousand dollars are paid, except taxes on real estate owned by said company.
    To this it is correctly answered that under the constitution of 1868 the General Assembly can not commute taxes, because article 118 prohibits the General Assembly from exempting property from taxation, except such as is actually used for school, church, or charitable purposes, and declares taxation shall be equal and uniform throughout the State, and all property shall be taxed in proportion to its value.
    This limitation upon the power of taxation given to the General Assembly precludes the idea of the existence of power to commute taxes.
    The capital of an insurance company is its property, and by the constitution it must bo taxed like theproperty of natural persons, in proportion to the value thereof. There can be no discrimination among the owners of property. Therefore the portions of the statutes relied on by defendant exempting insurance companies from taxation are repugnant to article 118 of the constitution and void.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Samuel P. Blanc, Assistant City Attorney, for plaintiff and appellee.

      Alfred Shaw, for defendant and appellant.
   Wyly, J.

The city of New Orleans recovered judgment by confirming a default, after proper notice, against the Lafayette Insurance Company for seven hundred and fifty dollars for city taxes on its capital for the year 1875. From this judgment defendant appeals.

The petition for injunction and other documents found in the transcript, which are not part of the evidence, will not be noticed.

The sole ground upon which appellant seeks a reversal of the judgment is, it paid a license of one thousand dollars for the year 1875 to the State, and by the statutes of 1871,1872, and 1874 it is provided that the payment of this license-tax by an insurance company “ shall bo deemed a full acquittance for all taxes imposed by State, parish, or municipal authority for the year for which said one thousand dollars is paid, except taxes on real estate owed by said company.” In other words, the defense is the the payment of $1000 license under the law by an insurance company is a commutation of all taxes claimed by State or city on the capital of said insurance company for that year.

To this the answer is, under the constitution of 1868, the General Assembly can not commute taxes, because article 118 prohibits the General Assembly from exempting property from taxation, except such as is actually used for church, school, or charitable purposes, and declares “ taxation shall be equal and uniform throughout the State,” and “ all property shall be taxed in proportion to its value.” This article restricts the exercise of the taxing power. Taxation must be equal and uniform and ad valorem upon all property throughout the State if levied for State purposes, or throughout the city if levied for city purposes. This requirement of the cons tit utioh is mandatory, and it precludes the exercise of the taxing power, except in the manner indicated. And this limitation upon the power of taxation givefi to the General Assembly' precludes the idea of the existence of power to commute taxes. If the General Assembly can commute the taxes of one person, they may of another. All insurance companies do not own the same amount of capital. One may have double the amount of another; yet if one thousand dollars be the commutation tax it will not be equal, uniform, and ad va-lorem on the property of insurance companies. If an insurance company paying a license of one thousand dollars have a capital of one million of dollars, the burden of taxation will not fall so heavily on it as on a commercial firm having a like capital subject to all the State and city taxes levied thereon. The capital of an insurance company is its property; and by the constitution it must be taxed like the property of natural persons, in proportion to the value thereof. There can be no discrimination among the owners of property where the power of taxation is employed, because the constitution declares “ all property shall be taxed in proportion to its value,” and “taxation shall be equal and uniform throughout the State.” It also prohibits the exemption of property from taxation, except such as is actually used for church, school, or charitable purposes. Under previous constitutions it was held the General Assembly could exempt property from taxation, and power to exempt property from taxation included authority to commute taxes; for a commutation of taxes is an exemption from ordinary taxation conditioned upon payment of a specified sum or other consideration.

The d'ecisions of this court under previous constitutions which permitted the General Assembly to exempt property from taxation, to the effect that the General Assembly may commute taxes, are not authority controlling this case arising under the constitution of 1868, which prohibits the exemption of property from taxation, except such as is actually used for church, school, or charitable purposes.

The case of the Louisiana State Lottery Company vs. City of New Orleans, 24 An. 86, cited by defendant, was not like the case now before the court. In that case the city claimed no taxes upon the capital of the Lottery Company. The controversy was whether said company was liable to take out a license from the city, or whether the city could demand a license from it. Of course there was no want of power in the General Assembly to agree, in consideration of a certain sum, to exempt said company from all licenses, State and municipal; because in regard to licenses there is no constitutional restriction or limitation. It is only in regard to taxes. What was said in that decision beyond the issue presented by the pleadings was unnecessary and is not authoritative.

Our conclusion is, those provisions of the statutes relied on by defendant, exempting insurance companies from taxation, are repugnant to article 118 of the constitution and void.

Judgment affirmed.


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    No. 6289.
    Mrs. F. C. Bienvenu vs. Leda and Mathilde Prieur.
    The plaintiff, Mrs. Bionvenu, sues to annul a judgment against her while a married woman and to enjoin its execution, on the ground that it was obtained for a debt of her husband, which was assumed by her in contravention of a prohibitory law, on the occasion of a sale of the property now seized having been made to her by her husband in satisfaction of a judgment she had obtained against him. writs of execution had been issued against husband and wife,’and, partial payments having at different times been made by Mrs. Bionvenu, delays were grantod. After the death of her husband, another execution was issued like the preceding ones, whereupon this suit was brought, As no payment was shown to have boen made after the plaintiff became sv,i juris, it follows that art. 612. C. P., and also art. 2272, R. C. 0., second clause, do not apply to her, and she is not estopped from assailing the judgment, when, for the first time, it is sought to be enforced against her.

      The act of sale from Bienvenu to his wife was null and void because of the assumption by the latter of the debts of the former, including tho note held by these defendants. It follows that the j udgment obtained by defendants against plaintiff on said assumptions is null, as she can not be made to pay the debts of her husband or community.
    But as the sale to her was null, the title to tho property did not pass from the husband, and she can not at the same time claim tobe the owner of the property and exempt from liability on the assumption. The contract is not null as to the assumption and valid as to the transfer of the property. She therefore has no legal ground to enjoin the sale of property for a debt of her husband, which she was forbidden to assume.
    The wife should be released from all personal liability for the debt of the husband resting on tho property, but the creditors should be allowed, to enforce then-mortgage as to the husband, when suit was instituted against her, she could have abandoned any claim to the property and thus avoided tho rendition of the judgment complained of.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      J. E. Austin, for plaintiff and appellee.

      A. Robert, for defendants and appellants.
   Howell, J.

Plaintiff sues to annul a judgment obtained against her while a married woman, and to enjoin its execution, on the ground, among ■others, that it was obtained for a debt of her husband, which was assumed by her in contravention of a prohibitory law. The defense is ac-•quiescenee and partial payments, a special and general denial, and a ■demand for damages.

Tho material facts are: Plaintiff obtained judgment of separation from her husband and for the sum. of thirty-nine thousand dollars against him, with a mortgage in favor of married women. . In satisfaction of this judgment the husband transferred property in the Third District of New Orleans, valued at $15,300, in consideration of which the sum of • $4883 72 was credited on the judgment, and for the balance tho wife assumed the payment, in place and stead of her husband, of certain notes secured by mortgage on the property sold. The defendants in this suit, being the holders of one of said notes for $3333 33J, instituted the hy-pothecary action thereon against Mrs. Bienvenu and husband, the prayer being that “ Mrs. Fannie C. Oliver, wife of A. Bienvenu, and said A. Bien-venu, to assist his wife herein, be cited according to law; that after duo proceedings had, judgment be rendered herein in favor of plaintiffs and against defendant” for the amount claimed, with vendor’s privilege and special motgáge on the property described, or its proceeds. Citation issued to the wife and husband, all the formalities required in the hy-pothecary action were observed, and judgment rendered in these words: -.“It is ordered, adjudged, and decreed that the judgment-by default herein entered on tho ninth instant be now confirmed and made final; that plaintiffs do have and recover of defendants, Mrs. Fannie C. Oliver -.and her husband, Aristide Bienvenu, the sum of $3333 33J, with eight per cent per annum interest thereon from the twenty-second of June, 1865, until paid, twenty dollars costs of copies of acts, and all costs of suit, the whole with vendor’s privilege and special mortgage on the property described in the petition and acts of sale herein.

“ Rendered March 16,1869.

“ Signed March 20,1869.”

Copies of this judgment were served on each of the parties. Executions were issued at different times, directing the sheriff in the usual form, by seizure and sale of the property, real and personal, rights, and credits of Mrs. Fannie C. Oliver and her husband, Aristide Bienvenu, to make the said sum, with vendor’s privilege- and special mortgage on the property described in the writs. Upon these writs partial payments wore made by Mrs. Bienvenu in 1869, 1871, and 1872, and delays were granted. In May, 1875, after the death of the husband, another execution issued in the same form, whereupon this suit was brought.

The defendants, who appealed from a judgment against them, insist that the plaintiff is estopped from attacking their judgment, by reason of said payments and acquiescence, and cite article 612, C. P., which says: “ The nullity of a judgment rendered against a party without his having been cited, or by an incompetent judge, even if the formalities of law have been observed, may be demanded at any time, unless the defendant were present in the parish and yet suffered the judgment to be executed without opposing the same.

“ The same rule shall govern as regards a defendant not qualified to appear in a suit where judgment has been given against him, if lie suffer the judgment to be executed against his property without opposing the same.”

And also article 2272, R. C. C., second clause: “In default of an act of confirmation or ratification, it is sufficient that the obligation be voluntarily executed subsequently to the period at which the obligation could have been validly confirmed or ratified.”

As no payment is shown to have been made by the plaintiff after she became sui juris, these articles do not apply to her, and she is not estopped from assailing the judgment when, for the first time, it is sought to be enforced against her.

Under, article 2397 of the Revised Civil Code, and the decisions in Spurlock vs. Mainer, 1 An. 301, and Oliver vs. Dayries, 23 An. 439, the act of sale from A. Bienvenu to his wife was null, because of the assumption by the latter of the debts of the former, including the note held by these defendants. It follows that the j udgment obtained by defendants against plaintiff on said assumption is null, the plaintiff being prohibited from malrihg such assumption, and the judgment against her should be so declared in this proceeding, as she can not be made to pay the debt of her husband, or community.

But as the sale to her was null, the title to the property did not pass from the husband, and she can not at the same time claim to be 'the owner of the property and exempt from liability on the assumption. The contract is not null as to the assumption and valid as to the transfer of the property. She, therefore, has no legal ground to enjoin the sale of the property for a debt of her husband, which she was forbidden to assume. Not being the owner of the property, she lias no interest in questioning the right of tlie creditors to enforce their mortgage upon it for the debt of her husband. Wo have seen that the judgment in favor of the defendants was rendered against both wife and husband, and copies thereof served on each, and that the execution was issued against both. There is no one before us complaining of the regularity of the proceeding as against the husband, whose property is certainly liable for the debt held by the defendants in .this case, and tho wife can not be heard to enjoin the sale of the property as hers and deny the debt resting on it and assumed by her as a part of tho price by which alone she could have acquired it.

We think she should be relieved from all personal liability for the debt of the husband resting on the property, but the creditors should be allowed to enforce their mortgage as to tho husband. When suit was instituted against her she could have abandoned any claim to the property, and thus avoided the rendition of the judgment complained of.

It is therefore ordered that the judgment appealed from, so far it annuls the judgment against plaintiff herein, be. affirmed, and that, so far as it perpetuates the injunction against the sale of the property subject to defendant’s mortgage, it be reversed, and the injunction dissolved with the costs thereof; costs of the lower court on the main demand to be paid by defendants and those of appeal by plaintiff.


author:
"Wyly, J.
      Moegan, J.,

text:
    No. 6112.
    A. T. Porche vs. Mrs. Emma Bodin et al.
    If, in this ease, tlie sale under tlie foreclosure of the mortgage containing the non-alionatlon clause dissolved the lease Of tho plaintiff, still this did not transfer to tho purchasers the crop of corn which was fully matured and ready to he gathered, and which did not belong to tlie mortgage debtor. Indeed, the mortgage certificate read at the sale and copied in the deed of tho purchasers showed that the corn belonged to plaintiff. Tho crop was made before there was a seizure. It was the property of tlie plaintiff, less one fourth duo for rent, and his title could not be divested in a proceeding to which he was not a party.
    By the sale the purchasers acauired the property of tho mortgage debtor, and the" lessee had the right to remove his property, whether in tho Hold or in the houses,from the leased premises.

      The evident me<aning of articles 465 and 466 of the Revised Code is, that where the crops belong to the owner of the plantation they form part of the immovable, and where it is seized, the fruits gathered or produced inure to the benefit of tin-seizing creditor.
    A crop raised on leased premises in no sense forms part of the immovable. It belongs to the losseo, and may he sold by him, whether it he gathered or not, and it may be sold by his judgment creditors.
    Besides, the law, if literally construed, only gives the benefit of the fruits gathered . or produced during seizure to the seizing creditor. Here it is the purchasers who claim the benefit. The seizing creditor did not set up such a claim either in the proceedings to foreclose the mortgage; 'br in the advertisement and sale. He took no proeeoding.eontradietorily with plaintiff lookiiig._to the sale of the property of the latter. On the contrary, the evidence shows that the crop was not sold. Defendants should be satisfied to get what they purchased. No one-should be permitted to enrich himself at the expense of another.
    APPEAL from the Fifteenth Judicial District Court, parish of Terre-bonne. Beattie, J. Jury trial.
    Ar. H. Bightor and I. D, Moore, for plaintiff and appellant.

      Goode & Winder, for defendants and appellees.
   "Wyly, J.

Plaintiff leased in March, 1873, by act unpjj|r private signature and duly recorded, sixty arponts of land, being paN of the plantation purchased by Mrs. Emma Bodin from E. S. Gooclc, in June, 1868. Pending the lease, to wit: in August, 1873, the plantation was seized under foreclosure of the mortgage given to secure the purchase price, and it was sold in September following to the defendants, Bonvillain and Bur-guieres.

The purchasers claimed the corn crop standing' in the Held leased to plaintiff, on the ground that the mortgage under which they purchased the property containing a non-alienation clause, the sale dissolved the lease, and the standing crop; being a part of the plantation, passed to them by the sale.

By the terms of the lease plaintiff was to give one fourth of the corn produced in payment of the rent.

The contract of lease was mentioned in the mortgage certificate incorporated in the deed to the purchasers.

Plaintiff sues to be decreed the owner of three fourths of the corn, and he enjoins the defendants from gathering and appropriating the corn.

Defendants, Bonvillain and Burguioros, caused the injunction to be released on bond for one thousand dollars.

The court below gave judgment on the verdict of a jury, rejecting plaintiff’s demand and dismissing his suit. Plaintiff appeals.

We think the court erred. If the sale under the foreclosure of the mortgage containing the non-alienation clause dissolved the lease, still this did not transfer to the purchasers the crop of corn, which was fully matured and ready to be gathered, and which did not belong to the mortgage debtor. Indeed, the mortgage certificate road at the sale and copied in the deed to the purchasers showed that the corn belonged to plaintiff. The crop was made before there was a seizure. It was the property of plaintiff, less one fourth due for rent, and his title could not be divested in a proceeding to which he was not a party. By the sale the purchasers acquired the property of the mortgage debtor, and the lessee had the right to remove his property, whether in the field or in the houses, from the leased premises.

It is true, article 465 of the Revised Code says that standing crops are considered as immovable and as part of the land to which they are attached, and article 466 declares that the fruits of an immovable gathered or produced while it is under seizure are considered as making part thereof, and inure to the benefit of the person making the seizure. But the evident meaning of these articles is, where the crops belong to the owner of the plantation, they form part of the immovable, and where it is seized, the fruits gathered or produced inure to the benefit of the seizing creditor.

A crop raised on leased premises in no sense forms part of the immovable. It belongs to the lessee, and may be sold by him, whether it be gathered or not, and it may be sold by his judgment creditors. If it necessarily forms part of the leased premises the result would be that it could not be sold under execution separate and apart from the land. If a lessee obtain supplies to make his crop, the factor’s lien would not attach to the crop as a separate thing belonging to his debtor, but the land belonging to the lessor would be affected with the recorded privilege. The law can not be construed so as to result in such absurd consequences.

Besides, the law, if literally construed, would only give the benefit of fruits gathered or produced during seizure to the seizing creditor. Here it is the purchasers who claim the benefit. The seizing creditor did not set up such a claim, either in the proceedings to foreclose the mortgage, or in the advertisement and sale. He took no proceeding contradictorily with plaintiff looking to the sale of the property of the latter. On the contrary, the evidence shows that the crop was not sold. Defendants should be satisfied to get what they purchased. They will not be permitted to despoil the plaintiff of the fruits of his industry or labor. No one should be permitted to enrich himself at the expense of another.

The cases in 9 Rob. 264, and in 14 An. 47, cited by defendants, -were not like the one now before the court, where the crop belongs to a lessee and not to a seized debtor.

As the evidence fails to disclose the value of the corn belonging to plaintiff which has been taken and appropriated by defendants, the case must be remanded.

It is therefore ordered that the judgment herein be annulled, and it is decreed that this cause be remanded for trial according to law and the views herein expressed, appellee paying costs of appeal.

Moegan, J.,

dissenting. On the twelfth of J une, 1868, F. S. Goode sold a certain tract of land, cultivated as a plantation, to Mrs. Emma Bodin. The sale was made by public act, and was duly recorded. The terms of sale were notes, to secure which, special mortgage and vendor’s privilege was reserved. The act of sale contained the pact ele non alienando. Burguieres, holder of one of the mortgage notes, past due, caused the property mortgaged to be seized and sold under a judgment obtained by him against Mrs. Bodin.' Bonvillain and Leupey Burguieres bought the property at the sheriff’s sale.

Mrs. Bodin leased a portion of the property to A. T. Porche. The lease was by private act, and was passed on the first of March, 1873. Porche cultivated the land leased, and when the plantation was sold (sixth of September, 1873,) had on it a crop of corn standing in the field. The purchasers attempted to gather the crop, when they were stopped by this injunction.

The act of’sale was notice to all persons having dealings with regard to the property conveyed by it, who were charged with notice of the terms upon which it was sold and the incumbrances which existed upon it. When, therefore, the plaintiff leased a portion of the land, he knew what responsibilities he was incurring and what risk he ran. I consider him to be in the same position that his lessor was. The lease was, in my opinion, a violation of the pact, and could not, therefore, affect the conditions of the sale or the condition of the property, and when the defendants purchased it they did so without any regard to the lease or the rights of the lessee as between the lessor and the lessee. When they acquired the land they became the owners of every thing which was growing thereon.

“ Standing crops, and the fruit of trees not gathered, and trees before they are cut down, are likewise immovables, and are considered as part of the land to which they are attached.” R. O. 0.465.

I do not understand how plaintiff can escape this positive provision of the Code. Certainly, if the standing crops are to be considered as part of the land, when the land is sold the purchaser can no more be deprived of what is growing upon the land than he can be deprived of the land itself.

In the case of Bludworth et al. vs. Hunter, 9 R. 206, the court said: “ The standing crops at the time of the sale to Jacobs were attached to the land, and are considered a part thereof, and were included in the price given for it. If the plaintiff, in any further proceeding, should claim a share of that price, in the hands of the purchaser, and succeed, he will then get his share of the ungathered crop. In the fifth N. S. 52, this court said, the fruits of mortgaged property are subject to the mortgage only while in the hands of the mortgageor; they cease to be so when they accrue after the transfer of the original property to a bona ficLe purchaser and possessor.”

In my opinion, therefore, the injunction was improperly issued; the judgment of the district court should be affirmed.