text:
    No. 4636.
    Succession of Thomas Hale — On opposition to account of Executrix.
    It is sufficiently clear from the tenor of the will on record, that the testator had the desire to give the seizin to the executrix. Any disposition or recommendation from the testator to his executor in regard to the mode in which Ms property is to be administered is a sufficient indication of his desire to grant the seizin. It is not necessary that the word seizin be inserted in the will to confer’tbe power.
    The executrix is entitled to credit for interest paid to procure extensions of mortgage notes, it not being shown that she had moneys in hand sufficient for the purpose of taking up the notes of the deceased when the renewals were made. It was important to the inter-'eat of the estate that they should be taken' up.
    The sum of §21,500 reported by the auditor in this instance, as amount of sales of property of the separate estate of the deceased during his last marriage and charged against his widow, was properly rejected by the court below, as there is no evidence to show that the proceeds of that property inured to the benefit of the community.
    It is expressly announced by article 1749 of the Civil Code that “all donations made between married persons, during marriage, though termed inter vivos> shall always be revocable,?’ The restoration by the wife to the husband of the various articles donated to her and the subsequent conversion of them by him for the uses and benefit of the community may be regarded as a revocation or an annulment of the donation.
    Apart from the disability of the husband and wife to enter into a contract with each other, except when the law expressly permits it, the promise or engagement of the husband to return to his wife the value of the articles donated back to him, by replacing them with others of the same kind and of the like value, could only be regarded as an imperfect obligation at best, and one that can not be enforoed by law. It did not have the binding force of a legal obligation against the husband and neither can it have against his heirs.
    A donation made in money, in the form of the manual gift, is valid without the formality of a notarial act of transfer.
    There is no foundation for the assertion that the provisions of artiole 3749 apply to donations by public act and not to manual gifts-which require no formalities after delivery. This; court is unable to discover in our code any exception to the rule laid down in artiole 1749.
    It is contended that, if by the act of donation from the husband, the money became hers absolutely, then by operation of law, article 1753 of the Civil Code, the ownership of said money changed, and was vested in the heirs in consequence of the wife’s second marriage. The court thinks that articles 1746, 1750 and 1752 must be construed together with article 1753, to which latter article the three former ones are subordinated, and that their operation is contingent upon the conditions expressed in the article Í753, which- i» not found in the Napoleon Code, but which was incorporated into our system of laws from the Homan law and Spanish Codes.
    The attitude of the parties to this litigation would seem to present a case provided for by the article 1753 of our code. During the marriage large and valuable donations were made by the husband to the wife in the form of the manual gift. The husband died, leaving children by Ms marriage with the donee, who has contracted a second marriage, the children of the donor still living. But in this case the conclusion of the court is that the provisions of artiole 1753 can not be enforced, for the reason that the substance of the donation is no longer tangible nor susceptible of identification. The property, of wMch the ownersMp, under such circumstances, becomes vested in the children, must-be the same property that was donated to the wife by the husband during the marriage.
    In this case, the money constituting the particular donation under consideration, has long since been used by the executrix, the donee, for the benefit of herself and family. It is no longer in esse as to the rights of the opponents. The ownership of it can not be enjoyed by the children nor the usufruct of it by the mother, Hence the executrix can not be held liable for it.
    Appeal from tlie Second District Court, parish of Orleans. Tissot, J.

      Labatt & Aroni, for executrix and appellee. Alfred Grima, John A. Gilmore, Clarice, Bayne & Benshaw, for appellees, heirs of Thomas Hale.
   Taliaferro, J.

The widow and executrix of the decedent, filed a provisional acoount of her administration on the first of July 1870. A vigorous opposition was made to it by the heirs of the deceased, who. are the children of the executrix; one of them, a married woman of the age of majority, the others, minors represented by their tutor. The objections set up against the account are very numerous, and a complicated litigation arose. The investigation involved the examination of aecounts and settlements of some intricacy, and the subject matter of the opposition was referred toan auditor. A large mass of evidence was taken before him, and his report, when presented to the Court, was in part rejected, while other portions of it were approved, and to to the extent of the approval, became the basis of the judgment of the court. The opponents appealed. The executrix, in answer to the appeal, prays for various amendments of the judgment of the court a qua.

A supplemental provisional account was filed by the executrix on seventh January, 1873. This was opposed .by the1 heirs likewise ; but the opposition was overruled by the court and the opponents seem to have acquiesced.

Thomas Hale, whose succession forms the subjct of this controversy, was twice married. He left descendants only by the last marriage. He left a will couched in the following terms :

“ This is my last olographic will. I, Thomas Hale, of the City of New Orleans, do hereby make this my last olographic will and testament, desirous that my heirs may avoid the annoyances of judicial intervention. I do desire that an inventory be taken of all my property real and personal, immediately after my decease; that no sale or transfer be made thereof; that it remain undivided for the uses and benefit of my family during the life-time of my beloved wife Josephine Jones, and in case of her death before the majority of all my children, that no division thereof be made until the majority of the youngest of my children.”

Having been possessed of property at the time of my marriage with my present wife, Josephine Jones, and no inventory thereof existing, and having made no marriage contract or dower in her favor, and in order to avoid all differences of opinion and litigation that might arise as to the value thereof, it has been verbally agreed between my wife and myself that I would bequeath her one fifth of all my property, which I do hereby, subject to her relinquishment of any legal claim she would have upon the property acquired after her marriage; but in case of, any change of opinion by her or her heirs respecting the relinquishment aforesaid, then her claim to the community property can be ascertained.by reference to an act passed before F. Grima, notary in the year 1838, when I married my first wife,-and the aforesaid fifth portion is null and void.”

I give and bequeath unto the Boys’ Male Orphan Asylum of this City (St. Mary), my dwelling house and premises at the Bay of St. Louis, State of Mississippi, and in case said property be sold or alienated before my death, then there shall be paid annually unto the trustees of said Asylum one thousand dollars for the term of five years after my decease, say $5000 in all. I bequeath the remainder of all my property after the aforesaid bequests be provided for, unto my lawful children then living at the time of the division of my property aforesaid, directed to be equally divided among them.

I do hereby appoint my wife Josephine Jones the natural tutrix and executrix under this will, relying on her good judgment and discretion in the administration for the benefit of herself and children. I do further appoint, as under tutors for my children, Thomas G-ilmore and Patrick Irwin, both of this city, entertaining the highest regard for their honor and integrity. Signed, written and dated of my own hand, in the sixty-eighth year of my age, in good health and sound memory, this fourteenth day of November, in the year of our Lord 1865.

Signed, THOMAS HALE.

Ne varietur. New Orleans, June 13, 1867.

Signed, J. W. THOMAS, Judge.

On the twenty-sixth November, 1866, the testator, then at Paris, in France, where he died a few months afterwards, added a codicil by which he revoked the donation of property at the Bay of St. Louis, substituting the donation of $5000 in money payable annually in installments of $1000 each, and confirming in all other respects his will as at first written. The surviving spouse rejected the legacy and stood upon her rights as survivor in community.

In viewing the action of the court below in regard to the contestation that has arisen in the settlement of this succession, it will be proper to follow up the separate grounds of the opposition in the order in which we find them set out in the reasons of the judge a quo for the judgment rendered.

First — The commission of Hyland for the collection of,the rents of houses, amounting to $8032 75, is opposed for the reason that no contract existed between Hyland and the deceased for the collection of these rents, during his lifetime and while in Europe; and that the executrix had no right to employ Hyland as collector at the expense of the succession. This objection was overruled. The deceased recommended his wife, executrix of his will, to retain the services of Hyland in the settlement of his succession, and Hyland should not be considered merely as an ordinary agent.

Second — The heirs oppose the commission of the executrix on the ground that she had not the seizin of the property by the will. It appears, said the court, that it is sufficiently clear, from the tenor of the will, that the testator had the desire to give the seizin to the executrix. Any disposition or recommendation from the testator to his executor in regard to the mode in which his property is administered, is a sufficient indication of his desire to grant the seizin. That it is not necessary that the word seizin be inserted in the will to confer the power. This objection was overruled.

Third — Opposition is made to the payment of interest on renewal of notes as charged in the auditor’s report, on the ground that the revenues of the estate were sufficient under a proper administration of the estate to satisfy the claims upon which interest has been paid. This objection was sustained.

Fourth — Opposition is made to the auditor’s report in relation to the separate estate of Thomas Hale before his second marriage, the-opponents claiming a larger amount of the property than is allowed in the report. The auditor’s report on this subject is sustained, except, however, the item of $21,500, amount of sale of two pieces of property sold by Thomas Hale during his second marriage.

Fifth — The heirs opposed the claim of the widow and executrix for $20,472 50, on the ground that this sum was the amount of donations made from time to time by Thomas Hale to his wife, which donations they contend were revoked by the donor. The auditor in his report rejected this claim, but the court overruled, as to this item, the auditor’s report as well as the opposition of the heirs.

Sixth — The auditor’s report is opposed by the executrix as to his rejection of her claim for $28,000, proceeds of a bill of exchange donated to his wife by the deceased in the form of a manual gift. The rejection of this claim by the auditor is sustained by the court, on the ground that a bill of exchange is an incorporeal right, and could only be transferred by donation by an act passed before a notary and two witnesses.

Seventh — The usufruct of the community property allowed to the widow by the auditor is opposed by the heirs, on the ground that the testator has disposed of his property by will. The court sustained the auditor’s report and overruled the opposition of the heirs.

Fighth — The court passed upon the two items of the accounts not reported on by the auditor, one for 21,000, the other $6000, charged as community funds used in improving the seperate property of Hale. The court concluded from the evidence, that at the time of the dissolution of the marriage, the increased value of the lots on Magazine street from the expenditure of community property in improving them amounted to $10,000, and that of the lots on Julia street to $4000, making $14,000, and reduced the charge to that sum.

We concur with the judge a quo in his ruling in regard to the preceding items under the numbers 1, 2, 4 and 8. We dissent from his disposal of the items 3, 5 and 7.

The item 3 — We think the executrix entitled to credit for interest paid to procure extensions of mortgage notes, it not being shown that she had revenues in hand sufficient for the purpose of taking up the notes when the renewals were made, and it was important to the interest of the estate that they should be taken up.

The item 4 — The sum of $21,500 reported by the auditor, amount sales of property of his separate estate during his last marriage and charged against the widow, was properly rejected by the court, as there is no evidence to show that the proceeds of that property inured to the benefit of the community.

Item 5 — The claim set up by the executrix to be reimbursed the sum of $20,472, is founded upon the promise of Thomas Hale to furnish her with jewelry and other valuables to that amount, in lieu of property of that kind previously given to her, which was sold and the money appropriated to his use. The testator was possessed of an ample fortune. He owned in New Orleans at the time of his second marriage a large amount of real estate, the rental of which formed perhaps the greater part of his income. He was at one time, in connection with others, engaged in large mercantile operations in Mexico. He lived in a style commensurate with his abundant means. From time to time during his last marriage he made donations to his wife of the character and in the form of manual gifts. These consisted of money and objects of elegance and taste, as costly paintings, statuary, jewelry and silver ware. At one time, from the casualties of trade he found himself temporarily embarrassed and heavily pressed for money to meet his engagements and to sustain his credit. In this emergency his wife willingly and promptly parted with the valuable presents received from her husband to be converted into money for his relief. It is shown to have been the purpose of Mr. Hale to compensate his wife for this sacrifice by bestowing upon her other articles of the same kind and like value to be selected by her in Europe during their last trip to that continent. His death, it seems, frustrated this purpose. Soon after their arrival in Europe he was taken sick and died, as we have seen early in the year 1867. In allowing this claim we think the court erred. It is expressly announced by article 1749 of the Civil Code, that “all donations made between married persons during marriage, though termed inter vivos, shall always be revocable.”

The restoration by the wife to her husband of the various articles donated to her and the subsequent conversion of them by him for the uses and benefit of the community, may be regarded as a revocation or an annullment of the donation. But it is contended that there was no revocation of the donation, as it was the purpose and intention of the donor to reinstate to his wife the value of the articles donated, in others of the same kind and of like value; that he had promised so to do and was prevented alone by death from fulfilling this engagement; that his succession is bound to fulfill it. Apart from the disability of the husband and wife to enter into a contract with each other, except where the law expressly permits it, the promise or engagement insisted upon could only be regarded as an imperfect obligation at best, and one that can not be enforced by law. It did not have the binding force of a legal obligation against the husband and neither can it have against his heirs. The opposition to this claim must be sustained and the claim rejected.

Sixth — -The rejection by the auditor of the claim of the executrix against the succession, of $28,000. The court sustained the rejection on the same ground that the auditor did; that the donation consisted of a bill of exchange for that sum, and the bill of exchange being an incorporeal right could only have been donated by act before a notary and two witnesses. Civil Code art. 1536. There is much said in the voluminous testimony of this large record in reference to the giving of this sum of $28,000. We conclude from the evidence that the proceeds of a bill or bills of exchange were given, and not the bill itself. The testimony of the sister of the executrix is positive on the subject, and her statement is corroborated by other testimony. She states that Mr. Hale handed to her a package containing twenty-eight United States Treasury notes, of one thousand dollars each, which he declared to be Mrs. Hale’s money, and which witness delivered to her. We think the evidence establishes that the donation was made in money, in the form of the manual gift, and that a notarial act of transfer was not requisite to its validity. Civil Code, art. 1539.

On the part of the heirs it is contended that these funds belonged •to the community, and they require the executrix to bring them back as assets of the succession. They moreover hold that if, by the act of donation, the money became hers absolutely, then, by operation of law, the ownership of it changed, and was vested in the heirs; this change resulting from her second marriage. Civil Code, article 1753. This article reads: “If a person who marries a second time, has children of his or her preceding marriage, he or she can not, in any manner, dispose of the property given or bequeathed to him or her by the deceased spouse, or which came to him or her from a brother or sister of any oi the children which may remain. This property becomes by the second marriage, the property of the children of the preceding marriage, and the spouse who marries again, only has the usufruct of it.”

The counsel for the execufcrix’maintains that the provisions of article 1749 apply to donations by public act and not to manual gifts which require no formalities after, delivery, and he quotes several French authorities. We are unable to discover in our code any exception to the rule laid down in article 1749 declaring that all donations . between married persons during marriage shall always be revocable.” The articles 1746, 1750 and 1752 must be construed together with article 1753, to which latter article the three former ones are subordinated and the operation is contingent upon the conditions expressed in the article 1753. That article was incorporated into our system of laws from the Roman law and the Spanish codes. It is not found in the Napoleon Code, but is derived from the Justinian Code. De secundis nuptiis. Title 1, Novelise Constitutiones 22, chapter 23.

Si vero sit sobóles et filios exhonoratos viderit lex, tunc omni largitate a viro ad earn veniente earn secundum proprietatis privat partem, solum ei derelinquens usumfruetum. ****** Et generaliter dioendum est, quod omnia earn deserit proprietatis modus in iis, quse a priore viro in earn venerunt.

“ But if the law discover that children and offspring are in this manner dishonored, then it deprives her, the mother, as to the matter of ownership of all munificent donations coming from the husband to her, leaving to her only the usufruot. * * * * and generally it is said that every form of ownership leaves her in those things which came to her by a former husband.”

“ Seoundarum nuptiarum damna incommodaque aut oomtnunia sunt utriusque conjugis aut uxoris propria. Et illa quidern ad lucrorum nuptialium spectant jacturam. Vocamus autem lucra nuptialia: qusacunque ex rations qualicunque, ad matrimonii tamen spectante causam, alter conjugum ex alterius bonis lucratus est, sive sponsalitia largitate id factum sit, sive conjugali donations, itemque sive testamento' lucrum ei obvenerit, sive lege, quo in genere etiam sunt, qute propter divortium alteri eripiuntur, alteri adjieiuntur.” Muhlenbruch Doctrina Pandectorum, sec. 542.

And indeed they (the losses and inconveniences of second marriages) contemplate the loss of nuptial gains — and we call nuptial gains whatever from any source, having reference to the purpose of marriage, enriches one of the spouses from the property of the other, whether that be effected by nuptial gifts or conjugal donation; likewise whether it be denied to the wife by testament or by law. In this class also are reckoned the things which on acoount of divorce are taken away from one of the parties and transferred to the other.”

The attitude of the parties to this litigation would seem to present a case provided for by the article 1753 of our code. During the mar-, adage large and valuable donations were made by the husband to the wife, in the form of the manual gift. The husband died, leaving children by his marriage with the donee, who has contracted a second marriage, the children of the donor still living. But in this case we conclude -that the provisions of that article can not be enforced, for the reason that the substanoe of the donation is no longer tangible nor susceptible of identification. The property, the ownership of which, in such a case, becomes vested in the children, must be the ■same property-that was donated to the wife by the husband during the .marriage. The money constituting the particular donation under consideration, has long since been used by the executrix for the benefit of herself and family. As regards the rights of the opponents, it is no longer in esse. The ownership of it can not be enjoyed by the ■children nor the usufruct of it by the mother. We conclude, therefore, that the executrix can not be held liable for this sum of $28,000, as contended for by the opponents. The judgment of the court below in regard to this item is not sustained. See 13 An. ,p. 143, Neely v. Stokes; 10 An. 679, Cook v. Doremus, and various cases there cited.

The counsel for the executrix, in their answerdo the appeal, allege that through error and inadvertence of the auditor the executrix did not receive credit for $12,212 38, excess in amount of disbursements on account separate estate of Hale over receipts from his .separate -estate. We conclude from the auditor’s statement made twenty-seventh May, 1872, and filed subsequently to his report, that there was error in the judgment as alleged, arising from error and omission on his part. The judgment must be amended, allowing the credit ■claimed. They claim a credit for $1282, amount of rent collected by Hale for Mrs. Jernsan, and paid by executrix after Hale’s death, and which it is alleged she omitted to enter as a debit on tho account, the fact of its being a debt of the community not having been known until stated by Hyland in his testimony. It appears to stand upon the same basis with that of the debit of James Hale, rent $7000 placed on the tableau and duly audited and allowed.

This credit must be allowed. They claim credit also for $677, amount of various disbursements set forth in document marked C and not entered upon the account of the executrix, and which should be added thereto. Copied from the ten pages of Book of Expenditures marked N. This credit should also be allowed.

A'further credit pf $.1059 15 is contended for in favor of the.exeoutrix for the reason that, from the corrected, report of the auditor fixing the amounts received by the executrix as shown by the rent rolls of Hyland, various sums amounting to $1059 15 were not deducted as they should have been, the executrix having accounted for these items on her tableau. The claim to this correction we are satisfied is well founded and it must be allowed.

A further credit of $2165 is claimed by the executrix as having been improperly charged by the auditor against her, the amount being for rents collected by Hyland and not paid over to Mrs. Hale. Both the executrix and Hyland say that this sum of $2165 was not paid over to her. The auditor states in his evidence accompanying Ms corrected report that there was evidence that Hyland had not paid over this sum of $2165 to Mrs. Hale, but, as that sum was for rents and they were oollected by Hyland as the agent of Mrs Hale, he charged them against her. We have not found from the evidence that the auditor was in error in debiting this sum to Mrs. Hale. The credit for this sum we con-elude should not be allowed.

It is therefore ordered and adjudged that the judgment of the district court be amended as herein altered and modified, and as herein before specified, and as so amended it be affirmed. All costs to be paid by the succession.

Rehearing refused.


source: Caselaw Access Project

author: Morgan, J.

license: Public Domain

text:
    No. 5082.
    Succession of James W. Pipes.
    Aesmnmg that the exceptions filed to the original role in this oasa by th* defendant Mrs. Pipes, are well taken, and that at that time, the parish court had no jurisdiction rations materia, or rations persona, her subsequent appointment as administratrix, which she provoked, brings the succession within the oontrol ol the parish court, aud she has therefore subjected herself to its jurisdiction.
    On the amended rule taken ou Mrs. Pipes, administratrix of the estate of her deceased hus. hand and tutrix of her minor ohildren, to show cause why a certain piece of property mortgaged to seoure a promissory note indorsed by the deoeased, should not he sold for payment of the same, after the plaintiff had introduced his evidenoe consisting of the note, the confirmation of Mrs. Pipes as natural tutrix, the account on which he figures as a oreditor, its publication, aud the judgment homologating the same, the defendant offered evidenoe to establish the allegations in her answer, to wit: That she had never filed any account, and that no one was authorized to file one for her. The plaintiff objeotecllto the reception of this evidence, on the ground that it was attacking the judgment collaterally. The judge a quo maintained the exoeption. It was an error.
    The defendant merely sought to show that the judgment upon which the plaintiff relied, was in reality no judgment against her. The plaintiff having rested his case npon the jndg. ment, the defendant was authorized to show that the judgment had no foundation ■ to stand upon. It is now a well recognized doctrine that one may use as a shield, what he can not use as a weapon.

      'A power of attorney given by tbe administratrix of an estate, to administer her own affairs, can not be construed to extend to tbe administration of tbe estate of ber deceased bus: band. Tbe power of attorney granted to a person to manage the affairs of a succession^ must be express.
    Tbe account not having been filed by tbe administratrix, nor by any one authorized by herr nothing therein contained can be considered as binding upon her or upon tbe estate which she represents.
    The claim of tbe plaintiff, if not kept alive by the judgment rendered on theNtableau, is long, ago prescribed.
    Appeal from, the Parish Court, parish of Iberville. Orowell, J.
    A. & F. B. Talbot, for plaintiff and appellee. Favrot & Lamon, for defendant and appellant.
   Morgan, J.

The succession of James W. Pipes was opened in the Parish of Iberville. His widow was confirmed as natural tutrix of her children, who were minors at the time and as such she administered upon the estate. These proceedings took place in the year 1860.

Subsequently, Mrs. Pipes removed to another parish in this State, whence she migrated to Texas. This took place in October 1863; She returned to Louisiana, permanently, in 1867, and seems to have selected the Parish of East Baton Rouge as her domicile. On the fourth January 1868, she appeared before the Recorder of that parish; and formally renounced the community of acquets and 'gains which had existed between her husband and herself. This renunciation seems to have been filed on the tenth January 1868.

On the second May 1870, N. K. Knox, appearing for the use and benefit of Richard Burke, took a rule upon Mrs. Pipes, in which, alleging that he is the holder and owner of a promissory note for $7500, with eight per cent, interest thereon from the first January 1863, ‘ drawn by Charles Pipes to the order of and indorsed by James W. Pipes, dated seventh June 1857, and payable on the first January 1861, the note being secured by mortgage and vendor’s privilege upon a certain property situate in the parish of West Baton Rouge ; alleging further that Mrs. Pipes, administering the estate of her deceased husband as widow in community, and natural tutrix to her minor children, filed on the ninth November 1865, a provisional account of her administration which, after due publication, was homologated by the judge, and that upon this tableau he was placed as a creditor for the amount of the note which he now holds, and that his mortgage and privilege was therein recognized; and alleging that he has a right to have said property sold for cash to pay his debt, interest and costs, took a rule upon Mrs. Pipes, as widow in community and as tutrix to her minor children, to show cause why the property referred to should not be .sold for cash, and his mortgage and privilege claim be p lid.

To this rule Mrs. Pipes pleaded:

Fir at — That the Parish Court had no jurisdiction ratione materim, becau's'e her children having reached the age of majority, or being emancipated, she ean not administer the estate of her husband as natural tutrix.

Second — Because, if surviving partner in community and responsible, the demand against her exceeding $500 ean not be enforced by the parish court, for .want of jurisdiction.

Third — That the court had no jurisdiction ratione personw, as she is not sued at her domicile. '

Subsequently she applied to be and was appointed administratrix of her deceased husband’s estate.

The exceptions were tried and maintained, reserving to the plaintiff in rule the right to amend and make Mrs. Pipes a party as administratrix, which was done.

In her answer she reiterates all the averments, allegations, and defenses which she made in her exception. She admits that a pretended account was rendered in her name as tutrix administering the estate of her husband, and that the account was homologated; but she denies that the acoount was filed with her knowledge or consent, or that the attorney who filed it had any authority whatever to present it; that the account could have no effect against her, the heirs or creditors of the estate, because it merely purports to give a statement of the creditors of the estate and the debts which may have been paid or were then due, or of the property of the estate then existing in kind, but does not show that she had collected and disbursed any money of the succession, and was, therefore, neither an account nor a tableau of distribution. She prays that the account presented by the attorney on the nineteenth December, 1865, and the judgment of the court of the third January, 1866, homologating the same may be declared null and void, that the rule taken against her be dismissed, and, finally, to plaintiff’s demand she pleads the prescription of five years.

There was judgment against her, and she has appealed.

■ Assuming that the exceptions filed to the original rule were well taken, and that, at that time, the parish court had no jurisdiction ratione materiw, or ratione personw, her appointment as administratrix (which she provoked) brings the succession within the control of the parish court, and she has therefore subjected herself to its jurisdiction.

Knox excepted to the answer filed by the administratrix, on the ground that it seeks to set aside and annul indirectly a judgment of the district court, which can only be done he says by a direct action. On the trial of the rule, after the plaintiff had introduced his evidence consisting of the note he holds, the confirmation of Mrs. Pipes as natural tutrix, the account upon which he figures as a creditor, its publication and the judgment homologating the same, the defendant offered evidence to establish the allegations in her answer, viz: that* she had never filed' any account, and that no one was' authorized to file one for her. The plaintiff objected to the reception of this evidence on the ground that it was attacking a judgment collaterally. His exception was maintained. We think our brother of the parish court erred. Defendant was not an actor seeking to annul a judgment, which had been rendered against her. She merely sought to show that the judgment upon which the plaintiff relied was in reality no judgment against her. The plaintiff stood his case upon the judgment. She was, we think, authorized to show that the judgment had no foundation to rest upon. We believe it is now a well recognized doctrine that one may use as a shield what he can not use as a weapon. The judgment was worthless against her, she never having signed the account upon which it was rendered, and never having authorized any one to sign or present it for her. To this end her testimony is positive, and the attorney who filed the account unsigned by her, says that he was never directly authorized by her to file it. He says he did so with the approbation of her son-in-law with whom he consulted, and. who, he supposed, held her general power of attorney, though he-never saw it. He did hold her power of attorney, but this power of attorney gave him control over her own affairs alone, and contains no. mention whatever of the estate of her husband. We understand that the power of attorney granted to a person to manage the affairs of a-succession must be express. He says he did have a conversation with, the counsel who told him that he intended to file an accouat and place Knox upon it, but that he remonstrated with him and that he had no knowledge of its having been filed until the service of the present rule upon Mrs. Pipes.

The account not having been filed by the tutrix, nor by any one; authorized by her, nothing therein contained can be considered as-binding upon her or upon the estate which she represented.

The claim, if it was not kept alive by the judgment rendered on the tableau, is long ago prescribed. The note was due on the first January, 1861. These proceedings were instituted only on the second May, 1870.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be avoided, annulled and reversed, and that there be judgment in favor of the defendant in the rule, plaintiff paying costs in both courts.

Wyly, J., dissenting.


author: Ludeling, C. J.

text:
    No. 5107.
    Succession of Daniel Williams — Mrs. Sarah A. Williams, Administratrix, Opponent.
    The proceeding to remove an administrator and force him to account is probate in its character, and the parish court had jurisdiction of the suit. The penalty inflicted under section 9 of the Revised Statutes of 1870 is only an incident to the suit.
    Appeal from the Probate Court, parish of St. Helena. Bussell, acting Parish Judge.

      T. & E. J. Ellis and J. H. Muse, for opponent and appellee. Kernan <& Lyons, for appellants.
   Ludeling, C. J.

The succession of Hiram Williams was administered by Daniel Williams. In November, 1870, tbe widow of Hiram brought suit against Daniel Williams, administrator, to destitute him-of his office, to compel him to account, and to have the penalty of the law inflicted upon him. This suit was brought in the parish court, from which the administrator had received his appointment, and there was judgment against Daniel Williams, removing him from his trust, ordering him to render an account, and condemning him to pay to the •state of Hiram Williams ten per cent, on the various amounts for whioh he was responsible. Daniel Williams having died shortly after this judgment, his widow became the administratrix of his succession.In 1873, she filed her final account of Daniel Williams’ estate, and the widow and administratrix of Hiram Williams’ estate filed an opposition to said account, and prayed to have the amount of the judgment in favor of the estate of Hiram against Daniel Williams placed on the tableau of debts. The opponent opposed several items on the account, but as, in our opinion, the judge a quo correctly decided these questions, which depended only upon the evidence, we deem it unnecessary to review them in detail here. The accountant moved to dismiss the opposition on the ground that the succession of Hiram Williams was not creditor to the estate of Daniel, inasmuch as the judgment aforesaid was rendered by a court without jurisdiction ratione materias, and was, therefore, utterly null. The judge a quo refused to dismiss the opposition, and rendered judgment in favor of the opponent for $3195 27. From this judgment the accountant appealed.

The proceeding to destitute an administrator and to force Mm to account is probate in its character, and the parish court had jurisdiction of the suit. The penalty inflicted under section nine of the Revised Statutes of 1870, is only an incident to the suit.

We think that substantial justice has been done between the parties-by the judgment appealed from.

It is therefore ordered and adjudged that the judgment be affirmed with costs of appeal.

Rehearing refused.


text:
    No. 5029.
    Jules A. Blanc v. S. O. Scruggs.
    The evidence shows that the defendant never objected to the incorrectness of the account rendered to him until after the institution of this suit on said account. It is an account stated: oompte arrete. The prescription of three years does not apply to such an account.
    Appeal from the Ninth Judicial District Court, parish of Natchitoches. Orshorn, J.

      William M. Levy, for plaintiff and appellant. O. Oha/plin & Sons, Jaelc & Pierson, for defendant and appellee.
   Ludeling, C. J.

This suit is to recover the amounts of a note and an account alleged to be due by the defendant.

The defence relied upon is the prescription of five 'years against the note and three years against the account.

The evidence shows that the course of prescription against the note was interrupted by the acknowledgment of the debt, before its prescription. It also appears from the evidence that the account was rendered to defendant and that he never objected to its incorrectness until after the institution of this suit. It is an account stated oompte arrété, and the prescription of three years does not apply to such an aocount. 20 An. 119. See 19 An. 185 ; 4 La. 544; 14 La. 34; 3 Rob. 362; 12 Rob. 544; 4 An. 197, Freeman v. Howell.

It is therefore ordered and adjudged that the judgment of the lower court be annulled; and that there be j udgment in favor of the plaintiff and against the defendant, for the sum of three thousand five hundred and four dollars and forty-two cents, with eight per cent, per annum from the sixteenth of March, 1861, with recognition of mortgage on the property described in the act.of mortgage; and for the further sum of one thousand six hundred and seventeen dollars and thirty-eight cents, with five per cent, per annum from the sixteenth of May, 1861, till paid, and costs of both courts.


author: Wtlt, J.

text:
    No. 5012.
    Bridget Bockel et al v. Joseph Rudman et al.
    When the judge fixed no amount for the appeal bond and a suspensive appeal was granted on giving bond conditioned according to law, the appeal will bo dismissed. The amount of the appeal bond is not sufficient for a suspensive appeal, and it will not do for a devolutive one, because it was not for an amount fixed by the judge.
    Appeal from the Seventh Judicial District Court, parish of Pointe Coupee. Farrar, Judge ad hoo. Jury trial.

      Leahe and Powell, for. plaintiffs and appellees. John Foist & F. Phillips, for defendants and appellants.
   Wtlt, J.

In this case the judge fixed no amount for an appeal bond. A suspensive appeal was granted on appellants giving bond conditioned according to law.

The amount of the appeal bond is not sufficient for a suspensive appeal. It will not do for a devolutive appeal, because it is not for an amount fixed by the judge. The motion to dismiss on this ground must therefore prevail.

It is therefore ordered that the appeal herein be dismissed at appellants’ costs.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 5058.
    E. Boedicker v. John East et als.
    Objection was made by defendants to the introduction of a diagram marked A., on tbe ground that, in an action of boundary, an official and authorized survey only can be made the basis of proceeding, and that the diagram being a private instrument or act of the plaintiff, is inadmissible. The court a qua admitted the diagram to be used by the witnesses on the stand to show the locus in quo, and the boundary in dispute. This ruling was oorreot under the pleadings. The plaintiff had the right to show the existence and locality of the alleged ancient line of division between the lands of the parties by parol evidenee, and the diagram was admissible to enable the witnesses to render their testimony intelligible to the court and jury.
    The objection to the admission of evidence showing that John East had pointed out to plaintiff in 1871, the line in question as the established boundary, was not well founded. John Bast is one of the defendants, and the husband of Erances East, the owner of the land, and seems to have acted for his wife.
    A bill of exceptions was taken to the admission of testimony introduced by the plaintiff to disprove a statement made by one of his own witnesses. The testimony was admissible. It was offered not to impeach, but to rebut. This court understands the rule to be, that although a party introducing a witness is not permitted to impugn his character for veracity, and to show that he is not worthy of belief, he may nevertheless introduce evidence to rebut a statement made by the witness as to a particular faot.
    Appeal from the Fifth Judicial District Court, parish of East Feliciana. Cole, J. Jury trial.

      Kernan & Lyons, Kilbourne & MoVea, for plaintiff and appellee. K. A. Cross & D. 0. Hardee and 0. P. Lefee, for defendants and appellants.
   Taliaferro, J.

This action was instituted by the plaintiff to prohibit the defendants from encroaching upon his land in disregard of the ancient boundary line established between their tracts, and to' recover damages for the wrongful encroachment so made by the defendants upon his premises, and to have the alleged ancient boundary line between those tracts recognized. The plaintiff proceeded by injunction against defendants who disregarded the order, and the plaintiff sued out a second injunction which the defendants succeeded in having dissolved by entering into bond. From the order dissolving the injunction the plaintiff appealed. This court, in March, 1872, annulled the order and reinstated the injunction. 24 An. 154.

The case was tried, before a jury, which returned a verdict in favor of the plaintiff, recognizing the ancient boundary line delineated upon a diagram in the record, designated by the letter A, and awarded the plaintiff eight hundred dollars damages. From this judgment the defendants have appealed.

In an amended answer to the appeal, the defendants pleaded the prescription of five, ten, twenty and thirty years.

The decision of this case depends mainly on questions of fact. Before proceeding to consider the evidence, it will be proper to examine several of the various bills of exceptions found in the record. Objection was made by defendants to the introduction of the diagram marked A, on the ground that in an action of boundary an official or authorized survey only, can be made the basis of proceeding; that the diagram being a private instrument or act of the plaintiff, is inadmissible. The court admitted the diagram to be used by the witnesses on the stand, to show the locus in quo and the boundary in dispute. We think the ruling correct under the pleadings.

The plaintiff, as we understand his petition and supplemental petition, is not suing to have the boundaries of the parties established as a matter not distinctly and satisfactorily understood, but rather to restrain the defendant from infringing upon his rights in an illegal and unwarrantable manner by interfering with him in the construction of a fence along the ancient and well defined boundary line between their lands, by illegally causing his laborers and employes to desist from the work of building the fence, and by forcibly crossing the division line between them and occupying about one hundred acres of his cleared land, and that in disregard and violation of the first injunction he had to resort to, to preserve his rights. He prays that the alleged ancient division line be recognized as the boundary between the two tracts. Under these allegations we think the plaintiff had the right to show the existence and locality of the alleged ancient line of division between the lands of the parties by parol evidence, and that the diagram was admissible to enable the witnesses to render their testimony intelligible to the court and jury.

The plaintiff in his own testimony, offering to prove that after his purchase of the land, John East, one of the defendants, pointed out to him in 1871, the line in question, as the established boundary between the tracts, objection was made that as to Mrs. Frances East, the owner of one of the contiguous tracts, such statements were res inter alios acta, and could not affect her. The court admitted the evidence on the ground that Mrs. East’s ownership of the land was not perfected until July, 1872, the time of the registering of the adjudication of the land to her in March, 1872, at sheriff’s sale; that it only took effects a against a third party, from the time it was recorded. The testimony was properly received. John East is one of the defendants, and the husband of Frances East, the owner of the land, and seems to have acted in this controversy for his wife.

A bill of exceptions was taken to the admission of testimony introduced by the plaintiff, to disprove a statement made by one of his own witnesses. From the judge’s addendum to the bill it appears that a witness, introduced by the plaintiff, volunteered the statement that the plaintiff Boedicker, told him the portion of land in controversy belonged to East; that this statement was not made in answer to any interrogatory put to him, and that the court admitted the testimony not to impeach but to rebut.

The testimony was admissible. We understand the rule to be that although a party introducing a witness is not permitted to impugn his character for veracity, and to show that he is not worthy of belief, he may nevertheless introduce evidence to rebut a statement made by the witness of a particular fact.

We learn from the record that the plaintiff’s land, as far back as 1833, was owned and occupied by one W. D. Carter; that this occupancy was continued by him for a number of years, and after he left the place, that it continued in the possession of his wife until her death, in 1862; that it was sold at private sale in 1867, purchased by Kern an & McYae, and by them sold to Boedicker, the plaintiff, in 1869. The contiguous tract owned by Mrs. East, was purchased by her husband, John East, one of the plaintiffs, from Mrs. Barksdale in the year 1857, he having occupied the plantation the year previous under a lease. In the year 1851 or 1852, W. D. Carter laid off a road on the division line, built a fence and dug a ditch along this line. One of the witnesses, Gray, lived on the Barksdale place from 1849 until 1856, the year that John East occupied it under a lease. Gray and Kirkland cultivated the Barksdale place adjoining Carter’s during several years. They say in their testimony that Carter cultivated up to the line. They recognized the line as the correct and proper division line between those tracts. Kirkland says that Carter cultivated up to that line, and that the land was cultivated up to that line up to the death of Mrs. Carter in 1862. Jim Moore, a freedman who was owned by Carter, was on Carter’s place from 1833 until 1863, a period of thirty years. He testifies that the line along which Carter in 1851 or 1852 laid off the road was run by a United States surveyor named Bates, but does not state the time; says that the fence was built ten feet inside of Carter’s line to leave room for a road; that he, the witness, laid off the road with a plow; “ that the fence built there by Carter remained until the war; that Borne part of the fence was there in ls71; that the road was still visible, badly washed in places, the remains of the bridge still on the bayou, the fence now grown up with cane, pieces of rail still there.” This witness says the ditch was made as soon as the road was completed; that when East came there, he built his fence on the other side of the road made by Carter; that the boundary line where the old fence is now, was made there before Mr. East bought the place where he now lives; that witness remained on the Carter place several years after Mr. East moved on the adjoining place; never' heard of Mr. East claiming any land on the opposite side of the road or across the road as laid out. States that when John East or Mrs. Prances East bought the adjoining place, he, Mr. East, put his fence also on the line laid out by Mr. Carter, leaving sufficient space for a road.

Dr. John B. Whitaker states that he has lived within a few miles of the Carter place from childhood; knows the road as the line established by the surveyor, Bates, with whom witness was well acquainted; does not remember distinctly the date of the fixing of the boundary line, but is positively certain it was more than twenty years ago; was present while the survey of the line was being made; knows that Mr. Carter and the community around considered the road as the boundary line; that Mrs. Carter offered to build a house as a residence for witness anywhere on her side of the boundary line between B and E; never heard any question about the ownership of the land in controversy till since the institution of this suit between the plaintiff and the defendant.

On the part of the defendant, a diagram marked K, was introduced, and in connection with it the testimony of Parrar, a surveyor, who made it. The purport of this evidence is to show that the diagram A is incorrect. This witness admitted that ho made the diagram K, by getting a copy from the parish map of the bearings and distances of the whole diagram, except the line A B, in red ink. He admitted that he knew nothing of the ownership of the lands nor of the claims except what Mr. East told him. Atkinson, a witness for defendant, knew the lands since 1849; heard Barksdale say he did not regard the “new road” as the boundary line; that a great many did not regard it as the boundary line, but does not know that everybody did not so regard it; that Carter exercised no possession of the land previous to the years 1852 and 1853, when he was cutting wood from the land for sugar making; that he acted like a man who was cutting off the timber merely for wood. This witness, the surveyor and Zackery, are the only witnesses on the part of the defense, except the defendants themselves. John East states that Carter obtained permission from him to cut timber from the land in dispute for wood, to be used in boiling sugar, and that subsequently he gave the same permission to Mrs. Carter; that both Carter and his wife proposed to buy the land in dispute from him ; that he did not consider the road as it now runs as the dividing line. The testimony of Dr. East, a son of John East, and one of the defendants, is in the main confirmatory of that of his' father.- The testimony of Zackery has no bearing upon the question of the division line. °

We think it is established that certain laborers of the plaintiff, while engaged in constructing a fence for the plaintiff along the division line, were threatened and made to desist from their work by John East. The plaintiff swears that, in consequence of this conduct of East, his laborers left his place, and he failed that year to make a crop in consequence. The testimony of Zackery, who it seems was one of the plaintiff’s employes, confirms the statement of the plaintiff in regard to the laborers leaving his place, but this witness denies that the defendants caused him to leave the plaintiff’s employ. John East himself admits that, in passing by where the laborers were at work on the fence, he pointed out to them a line mark on a hickory tree, and told them, when they got there, they would have to stop.

It is clear that the testimony preponderates decidedly in favor of the plaintiff. It is shown beyond all reasonable doubt by the evidence of Moore, Whitaker, Gray and Kirkland, that the division line was established by Carter in 1851 or 1852, five years at least before East bought the Barksdale tract. No objection, to the knowledge of these four witnesses who lived, one of them on the Carter place and the others in the close vicinity of it for many years before East came there, was ever made to the location of this line by Barksdale, or any prior owner of the tract now held by Mrs. East. Neither was any objection to it ever heard of by them as being made, by East, after he bought; and occupied the tract now owned by his wife. More than that, their evidence is to the effect that East himself always recognized the line as the division boundary line between the two tracts. The claim he now sets up is shown to be of quite recent origin.

The plea of prescription set up by defendants is unavailable. Their demand of one thousand dollars in reconvention was properly rejected.

We think the decision of the court a qua was properly rendered in favor of -the plaintiff.

Judgment affirmed.


author: Howell, J.

text:
    No. 5085.
    William L. Cushing et als. v. S. L. Harmonson et als.
    *Where the plaintiff, individually and as administrator of a succession, sues to annul the sale of the succession property and other proceedings held in connection with the settlement of that succession, on the grounds that his attorney exceeded his authority therein; that the sale was null, no price heing paid; and that all said mortuary proceedings were had without his knowledge or authorization, and were in fraud of his rights; and where said plaintiff instituted this suit more than six years after the sale which he seeks to annul;
    Held — That under the circumstances presented in the record, this court can not think there should be much hesitancy on rejecting plaintiff’s demand.
    Whatever may be the ordinary relations between the administrator of a succession and his attorney conducting the neccessary judicial proceedings in the settlement of a succession according to the laws of this State, an administrator, residing in a parish distant from that where the succession is opened, who showed so little interest in, and attention to, his fiduciary trust, who allowed such a length of time to elapse before taking a single ••step of a personal nature, and who committed the whole succession to the sole management of his attorney, should not be heard with much favor when he asks a court of justice to undo what it has done at the request of his attorney.
    It was the duty of the administrator, as an officer of the court, to know what proceedings were being had in the succession administered by him and to present himself, or have another attorney to represent him, in the place o4f the one who had died. To grant his demand would be a premium upon negligence in fiduciary agents and officers of courts.
    The prescription of one year to this action of nullity is properly invoked. The argument of the administrator that prescription only began to run when he discovered the alleged fraud practiced upon him, can not be of any avail, as he was bound in law to know his duty as administrator, and what proceedings were had in the settlement of the succession under his care.
    Appeal from the Parish Court, parish of West Feliciana. Haralson, J.

      Samuel J. Powell, for plaintiffs and appellants. H. H. Lealce, for defendants and appellees.
   Howell, J.

The plaintiff, individually and as administrator’of the succession of Gr. W. Miles, deceased, sues the widow and minor heirs of the deceased and the creditors of the succession, to annul the sale of the succession property, the final account filed in his name, the judgments homologating the same, the judgments upon oppositions filed, .the judgments making him personally liable for the debt due the widow and heirs, and all the mortuary proceedings on and subsequent to the date of said sale, on the grounds that his attorney exceeded his authority therein, that the sale was null, no price being paid, and that all said mortuary proceedings were had without his knowledge or authorization, and are in fraud of his rights. He makes oath to the allegations of his petition.

The defense is, besides the general issue, that the petition contains no legal grounds for annulling the said judgments; that the price should have been tendered; that if- any irregularities existed, they are prescribed by five years; that plaintiff was not a creditor of the deceased, and opened the succession to collect the claim of a creditor, whose agent he was, and that he was aware of and ratified said pro«ceedings, and they pleaded the prescription of one year in bar of his action.

From a judgment against him, the plaintiff has appealed.

The facts necessary to be understood, are the following: In January 1867, the plaintiff, a resident of New Orleans, applied, through W. D. Winter, his attorney in the parish of West Feliciana, for letters of administration on the succession of G-. W. Miles, deceased, in said parish, alleging himself to be a creditor. Upon taking the oath and giving security in New Orleans, by virtue of order to that effect, letters were issued to him, and in June following, upon a petition signed Winter & Butler, attorneys, an order issued to the sheriff to sell for ■cash all the property inventoried, consisting of an undivided half of a tract of land and the saw mill and machinery thereon in said parish. On the sixteenth July following the sale was made, the process verbal showing that the land was adjudicated to one L. L. Babers for three hundred and three dollars and twelve and a half cents, the appraisement; and the sawmill and fixtures were adjudicated to G-aty, McCune &. Co. for $1650, the appraisement thereof, and that the purchasers complied with their bids by paying the cash, the sheriff taking a receipt for the amount of the sale, signed by Winter & Butler, attorneys for administrator.”

It is shown, however, that the cash was not paid, but the amount of each bid, less the proportion of each bidder of all the costs of settling the succession, was credited by W. D. Winter, attorney, on the claim ■of each of said bidders against said succession. These were the only creditors left by the deceased, and their claims were only partially extinguished by this process: One Babers, who resides in Mississippi, field a mortgage on the land, and the others, Gaty, McCune & Co., residing in St. Louis, Mo., were the vendors of the mill and machinery, and the plaintiff was their agent, and took the administration, as he says in his depositions, to collect the said claims. Prior to the sale, but after the date of the order therefor, the plaintiff wrote to his attorney, Winter, acknowledging the receipt of a letter from the latter, inquiring about the situation and value of the land to be sold, stating that his wife wished to make an investment for their little boy, and that she would authorize him to purchase the land if he thought advisable, and in a letter dated July 1, 1867, he informed his attorney that he had sent an engineer up to examine the machinery. On the day of the sale, July 16, 1867, Winter wrote a letter to plaintiff informing him that he had bought the saw mill for Gaty, McCune & Co. at the appraisement, and the land for Babers at the appraisement, describing the advantages of the land, asking him if he wished it at said bid, and in whose name he wished the title made, and directing him where to deposit the price, in case he concluded to take it, and telegraph his conclusion. On twentieth same month Winter wrote again to plaintiff, saying: “There was no other bidder but myself on either. I was compelled to bid the appraisement for Messers. Gaty, McCune & Co., $1650, on saw mill. As I explained to you in the. city, it mattered not whether my bid for them was $1200 or $3000, their liability in either event being the same, viz., for costs in the succession. I inclose a statement showing whole amount of costs, their proportion of same, also my account showing balance due me of three hundred and seventy-four dollars, which I would be glad to receive without delay. I send duplicate of this with inclosures to Given Campbell, Esq., by this mail.”

Plaintiff says in October, 1873, in answer to an order to produce, that he can not find the above letters, and if he ever received any such letters, they were probably forwarded to Gaty, McCune & Co., of St. Louis. The letters and answers to interrogatories of Given Campbell, Samuel Gaty and Gaty, McCune & Co., show that they were informed of Winter’s acts in regard to said sale; that the latter paid their proportion of all the costs of the succession, and authorized Winter to sell the machinery for their account.

The plaintiff, as a witness, says that some years ago, the exact time he can not recollect, Gaty, McCune & Co. wrote to him that they had bought the machinery and wished him to dispose of it, and he sent a person to examine it, but did not sell it. He says also that winter may possibly have explained to him after the adjudication, that the said, parties had bought without paying the cash.

In February, 1868, a final account was filed, signed “ W. L. Cushing, administrator, by his attorney, W. D. Winter,” showing the expenses, of the administration and the amounts allowed Babers and Gaty, McCune &. Co., amounting in all to the sum of the two bids of these parties, for all of which receipts are in the record. To this account Mrs. Harmonson, as widow and the tutrix of the minor children of the deceased, filed an opposition in the district court, objecting to the items in favor of Babers and Gaty, McCune & Co., and claiming the same for herself and the minors. Winter, as counsel for these two creditors and the administrator, filed separate answers for them in January 1869, to the opposition of Mrs. Harmonson. The account was two days thereafter homologated so far as not opposed. In January 1871, Winter was killed. In March following, the opposition of Mrs. Harmonson was sustained, and the account, as amended, homologated by judgment of the district court. The proceedings were transferred to the parish court, and there again the said opposition was sustained, and the account homologated in May 1871. No attorney, it seems, appeared for the administrator in said proceedings, the firm of Winter & Butler having been dissolved a year before the death of the former, and the latter stating to the counsel of the opponents that he was not authorized to represent the administrator.

In April 1873, Mrs. Harmonson ruled the administrator to show cause why execution should not issue against him personally. In May, after answer filed, the rule was made absolute and the administrator appealed; but the appeal was set aside for insufficiency of the bond, and in September following (1873), more than six years after the sale which he seeks to annul, this suit was instituted by him.

Had the creditors or heirs made the demand, we would have difficulty in determining the questions that might properly arise in such a controversy; but when it is made by an administrator, under the circumstances presented in this record, we can not think there should be much hesitancy in rejecting it. Whatever may be the ordinary relations between the administrator of a succession and his attorney, conducting the necessary judicial proceedings in the settlement of a succession according to the laws of this State, we do not think that an administrator, residing in a parish distant from that where the succession is opened, who shows so little interest in and attention to his fiduciary trust, and allows such a length of time to elapse before he takes a single step of a personál character, but committed the whole succession to the sole management of his attorney, as plaintiff nob only admits by his pleadings, but-even urges in his argument, should be heard with much favor, when he asks a court of justice to undo what it has done at the request of his attorney, or what the acts of his said attorney give other parties the right to do.

The plaintiff, as all administrators do, took an oath to faithfully discharge and perform all the duties incumbent on him by law as administrator, and yet after more than six years, he not only virtually admits that he has not performed his duty, but alleges that all that has been done by his attorney was unauthorized by him, unknown to him, and in fraud of his rights, and asks that it all be declared null, and this solely for his own personal interest and advantage, and not for the benefit of his heirs or creditors. The evidence, however, brings conviction to our minds that he was not ignorant of the sale to be made, and as it was made, or of the death of his attorney, and it was his duty to attend, at once, to having another to represent him in the proceeding at the time in the court. The parties, who had made up an issue with him, had a right to have that issue determined. The judge might well have delayed the trial and required the administrator to be represented by counsel; but his not doing so, is not, in this instance, a legal cause for the said administrator to annul the judgment on that issue. He had a year from the dates of the judgments sustaining the opposition to and homologating the account, to appeal and have them reversed, if erroneous, and he can not now be heard to plead ignorance or absence, or want of counsel as a cause of nullity.

It was his duty, as an officer of the court, to know what proceedings were being had in the succession administered by him, and to be present himself or have an attorney to represent him. To grant his demand, would be a premium upon negligence in fiduciary agents and officers .of courts.

We think, too, the prescription of one year to his action of nullity is properly invoked. His argument that prescription only began to run when he discovered the fraud, as he alleges, on being served with the rule to make him personally responsible, can not avail him, as he was bound, in law, to know his duty as administrator, and what proceedings were had in the settlement of the succession under his care.

Judgment affirmed.


text:
    No. 5010.
    Louis Dupleix v. Alexander Deblieux, Executor
    The plaintiff has instituted this suit to recover the amount of certain notes which he gave for having purchased at the succession sale, of one Sompeyrac the undivided half of a tract of land. He alleges 'that these notes were paid in error, having recently discovered, that the said succession had no title to the undivided half of the tract of land so sold and adjudicated to him, and hence that he paid what he did not owe and for something which he did not acquire.
    The plaintiff’s action is premature, as no eviction or disturbance has occurred; and if it be considered an action of rescission, which it is in effect, it is defective, because plaintiff has been in possession several years, has made no tender of the property, or offer to return the same to the defendant, nor made an allegation that he has been disquieted, or has a just reason to fear disturbance or eviction. The demand, as made, puts the plaintiff in the position of keeping the property and demanding the return of the price.

      APPEAL from the Ninth Judicial District Court, parish of Natchiü toches. Orábame, J.

      J. JB. T. Tuclcer, A. & W. Voorhies, for plaintiff and appellant. Morse & Dranguet, for defendant and appellee.
   Howell, J.

In November 1863 the plaintiff purchased at the succession sale of A. Sompeyrac, deceased, the undivided half of a tract of land, described in the petition, for which he executed two notes due first of April, 1865 and 1866 respectively, which he paid at maturity of each. In February, 1872, he instituted this suit to recover the amount of said notes with interest, on the ground that he paid them in error, having recently discovered that the said succession “ had no title to the undivided half of the tract of land so sold and adjudicated to him out of the Government of the United States at the date of the said adjudication,” .and hence he paid what he did not owe and for something that he did not acquire. The defendant excepted that plaintiff’s suit “is premature for the reason that he had not been disturbed and much less evicted from the land described in the petition; that no such allegations are found therein.” This exception was referred by the court to the merits and an anwser was filed containing a general denial and said ground of exception. On the trial evidence was introduced by the parties and objections made thereto by each, and judgment of nonsuit was given and the plaintiff appealed.

The plaintiff insists that his action is not one for the rescission of the contract of sale, but one, under articles 2133 and 2452, E. C. C. and 18 C. P., for the restitution of wiiat he has paid in error, the succession having sold the property of another.

In the case of Bonnabel v. First Municipality, 3 An. 700, in which similar allegations were made, the court held “that article 2452, (2427) must be reconciled with the provisions of article 2560, (2538) which are, that the purchaser, who has paid the price, can neither demand a restitution of it nor security even, during the pendency of the suit brought to evict him; and he can not, a fortiori, do so before any disturbance has taken place.”

Applying this doctrine to the case now before us, the plaintiff’s action is premature, as no disturbance nor eviction has occurred. And if it be considered an action of rescission, which it is in effect, it is defective, because he has been in possession several years, has made no tender of the property or offer to return the same to the defendant, nor made an allegation that he has been disquieted or has a just reason to fear disturbance or eviction. See 14 An. 473.

In the case of Buford v. Valentine, 3 N. S. 57, cited by plaintiff, there was a charge and proof of fraud on the part of the vendor, while in this no such charge is made. And in Pepper v. Dunlap, 9 R. 283, also relied on by the plaintiff, where the vendee was resisting payment, there was an allegation and proof that the claim of the vendor to the land had been rejected by the land commissioners and that it had, since the sale, been patented to other persons by the government. Here the simple allegation is that the succession has no title to the land out of the government of the United States. This, under the ruling in 3 An. above quoted, is not sufficient for a reclamation of the price paid, under the circumstances set out in the petition. The demand, as made, puts the plaintiff in the position of keeping the property and demanding the return of the price. We think there is no error in the judgment of nonsuit against the plaintiff on his allegations. k.

Judgment affirmed.


author: Wyly, J. Wyly, J.

text:
    No. 2963.
    Baker & Thompson v. Mrs. A. L. Pagaud.
    Assuming that "a husband acted as tho agent of Ms wife in matters connected with the . general administration of lier affairs or business, it must be shown that he had authority, express and special, sufficient to bind her by his promise to pay the debt of a tMrd person.
    Under the act of 1858 the promise to pay the debt of a third person can not be proved by parol. It must be in writing, the law is proMbitory, and this court can not recognize any other proof to establish the fact.
    It is well settled that men who furnish materials have no privilege, if the contractor with whom they dealt had none.
    The acknowledged account oí plaintiffs against Allison, the contractor, did not give them a privilege on the property of defendant, for whose buildings Allison bad bought materials from them. At most it only entitled them to such privilege as Allison might have.
    Having tailed to record his contract, Allison had no privilege j consequently the plaintiffs are in the same category.
    Whatever sum the defendant may have in her hands, due on her contract with Allison, after deducting the amount expended to complete the buildings subsequently to Allison's abandonment of his contract, belongs to Allison, and it certainly can not be distributed among his creditors in this proceeding, because he is not a party.
    The plaintiffs, who are creditors of Allison, have shown no authority from him to collect from defendant whatever sum she may owe on a final settlement.
    Appeal from the Seventh District Court, parish of Orleans. Col-lens, J.

      Hornor & Benedict, for plaintiffs and appellees. Bandolph, Singleton & Browne, for defendants and appellants.
   On Motion to Dismiss.

Wyly, J.

The motion to dismiss this appeal for want of proper parties and because the appellant has no appealable interest, can not prevail.

There was no want of proper parties in the court below, and the appeal having been granted on motion in open court and tbe appeal bond being in favor of the clerk, there is no want of proper parties here.

As to the want of appealable interest, we will remark that the defendant is the appellant, against whom the plaintiffs, in their petition, prayed judgment for $1059 54 with interest at five per cent, per annum from the seventh of December, 1867. The amount in dispute between the plaintiffs and the appellant is the sum for which they prayed judgment against her, which far exceeds $500.

How therefore the plaintiffs can say that the defendant has no appealable interest, we can not imagine.

The motion is overruled.

On the Merits.

Wyly, J.

In August, 1867, the defendant Mrs. A. L. Pagaud made a written contract- with S.# B. Allison, a builder, to erect a dwelling bouse on her lot on Dryades street and to furnish all the materials, agreeing to pay therefor $3700 in the instalments mentioned in the contract.

Allison bought from the plaintiffs materials amounting to $1166 72. Before the second instalment was due Allison abandoned his contract; and Mrs. Pagaud completed the erection of the building. The plaintiffs sued Mrs. Pagaud for the price of the materials they furnished the delinquent contractor and sought to have recognized a privilege for the amount thereof on the dwelling of the defendant.

The court gave judgment against the defendant Mrs. A. L. Pagaud for $1199 10 ; but decline to recognize the privilege ; and she has appealed. The appellees, however, pray for an amendment of the judgment so as to allow the privilege which they claim. As a question of fact we find that the debt sought to be enforced personally against Mrs. Pagaud was a debt contracted by Allison, the builder; it was his debt. The plaintiffs, however, attempted to prove that, through her husband as agent, the defendant promised to pay the debt. This attempt we regard as a failure for two reasons :

First — Assuming that the husband acted as the agent of his wife in matters connected with the general administration of her affairs or business, it is not shown that he had authority, express and special, sufficient to bind her by his promise to pay the debt of a third person.

Second — Under the act of 1858 the promise to pay the debt of a third person can not be proved by parol; it must be in writting. The law is prohibitory and the court can not recognize any other proof to establish the fact. Levy & Dieter v. DuBois et al, 24 An. 401; Merz v. Labuzan, 23 An. 747.

In regard to the privilege which the plaintiffs assert, we find no foundation for it, in view of the facts disclosed in the record. It is well settled that material men have no privilege, if the contractor with whom they dealt had no privilege.

“ Mechanics, laborers, and furnishers of materials employed by one who has contracted for the erection of a building, are only entitled to the same privilege as the contractor, and when the contractor has failed to register his contract as required by law, those employed by him have no privilege.” Allen, executor, v. Wills et al, 4 An. 97 ; Whitla v. Taylor, 6 An. 480; 16 An. 127; Revised Code, 2772, 2773, 2775.

The contract between Mrs. Pagaud and S. B. Allison, the contractor, was not recorded. The registry of the acknowledged account of plaintiffs against Allison did not give them a privilege on the property of Mrs. Pagaud; at most it only entitled them to such privilege as Allison might have. Having failed to record his contract, Allison had none. Consequently the plaintiffs have none.

Whatever sum Mrs. Pagaud may have in her hands, due on her contract with Allison, after deducting the amount expended by her to complete the building, belongs to Allison ; and it certainly can not be distributed among his creditors in this proceeding, because Allison is not a party. The plaintiffs, who are creditors of Allison, have shown no authority from him to collect from Mrs. Pagaud whatever sum she may owe him on a final' settlement. Assuming that she owes Allison the sum the plaintiffs insists is due by her to him, still Allison appears to be a necessary party, contradictorily with whom the settlement should be made.

It is therefore ordered that the judgment herein be annulled, and it is further ordered that there be judgment for the appellant, plaintiffs paying costs of both courts.

Rehearing refused.


text:
    No. 5071.
    Succession of Antoine Decuir — Mrs. Josephine Decuir, Administratrix v. Leon Ferrier et als.
    By the judgment homologating the final account and tableau of her administration, the administratrix, plaintiff in this case, was discharged from her trust. Therefore, if that judgment be not utterly null, she, as administratrix, has no standing in court.
    The evidence in the record shows that the attorneys who filed the account [were employed by her and that they were authorized to act in the premises.
    Besides, more than twelve months had elapsed from the rendition of the judgment homologating the account, when this suit in nullity was instituted.
    The administratrix can not bo listened to, when urging her own laches in having the accounthomologated before the account and tableau had been advertised ten days, in order to gain an advantage individually.
    Appeal from the Parish Court, parish of Pointe Coupee. Bouanchaud, J.

      JB. K. Washington and S. It. Snaer, for plaintiff and appellant. Edward Bhillips, for defendants and appellees.
   Ludeling, C. J.

This suit was instituted by Mrs. Decuir, as. administratrix of Antoine Decuir, deceased, to annul a judgment of' the parish court, homologating her final account and tableau of distribution of said succession. The grounds upon which she bases her-action are, that she did not sign the tableau, and that Messrs. Haralson & Claiborne, attorneys, who filed the account and tableau, had no authority to do so ; that the tableau is not correct; that .the account and tableau were not advertised according to law; and that she individually is a privileged creditor, but her claim was utterly ignored.

The following were urged as exceptions to the action; that the petition shows no right or cause of action; that the administratrix of the said succession has no interest in this suit and no right to stand in judgment; that the action in nullity is|barred by the lapse of one year,, and the prescription of one year is pleaded.

By the judgment homologating the final account and tableau aforesaid, the administratis was discharged from her trust. Therefore, if that judgment be not utterly null, she, as administratrix, has no standing in court. 20 An. 35; 23 An. 178.

The evidence in the record satisfies us that the attorneys who filed the account were employed by her, and that they were authorized to> act in the premises.

Besides, more than twelve months had elapsed from the rendition of the judgment homologating the account, when this suit was instituted.

She can not he listened to when urging her own laches in having the account homologated before the account and tableau had been advertised ten days, in order to gain an advantage individually.

It is therefore ordered and adjudged, that the judgment of the lower court be affirmed with costs of appeal.

Rehearing refused.